Civil Procedure Law Research Articles

Comparison of the Sino-US prohibition order system in environmental protection

Environmental protection has become a hot topic today, environmental pollution, the awakening of environmental protection consciousness, lead to environmental protection innovation in the legal system, environmental protection prohibition system in recent years also on the hot plate of protecting the environment, but the prohibition system in our country is corresponding in the civil procedure law, but there are many defects compared with other countries. This paper mainly compares with the American environmental protection prohibition system to find out the system suitable for the further development and improvement of the Chinese environmental protection prohibition system. Mainly compare the environmental protection prohibition system and start subject, application conditions, audit procedures, the rights of the applicant, according to China's national conditions and environmental protection practice, suitable for the development of our country environmental protection prohibition specific system, in order to perfect the system and can well applicable to the field of environmental protection in our country.

Completion of the Provision in Civil Procedure Law

Completion of the Provision in Civil Procedure Law

Electronic evidence as a means of proof in civil proceedings

The emergence of the concept of electronic evidence in the civil procedural legislation of Ukraine pro- voked a discussion among lawyers, one of the issues of which was the submission of information in electronic form and determining its ability to be a legitimate means of proof in court. Therefore, the article first explores the concept and features of electronic evidence, in particular the possibility of recognizing a particular electronic information legal.
 In the theory of civil procedural law, the question of the legality of factual data sources is usually associated with the origin of the information itself. Since, the specific order of access to certain information directly depends on their content, which means the following. If electronic evidence is public information, including restricted access (confidential, secret or official), or public information containing personal data, the answers to the question of the legality of its receipt should be sought in the Law of Ukraine “On Access to Public Information”.
 However, personal data of a personal, private nature can also be electronic evidence. In this case, the procedure for access to them is determined by agreement between the subject and the owner of such data or special legislation. This means that a source is declared inadmissible if the rights, freedoms and interests of others are violated or if such a source turns out to be unknown or illegal.
 Due to the above facts, the article analyzed the provisions of the current civil procedural legislation of Ukraine governing the submission of electronic evidence to the court, in accordance with certain criteria, and pointed out their positive and negative features. Also, the importance of the presumption of proof, electronic signature and submission of electronic evidence in the original is taken into account.

Pembaharuan Hukum Perdata di Indonesia

The politics of codification in the renewal of national civil law must also pay attention to the existence of the legal rules contained in Islamic law and customary law as sources that can be used as material in the renewal of national civil law. There are two important issues in the agenda of revising the national civil procedural law, that is; regarding aspects of evidence that must adapt to technological advances and various models of civil transactions, regarding the execution of court decisions which so far have failed to be executed in the absence of the involvement of law enforcement. For things that are not possible to be uniformed, they are left as they are now while still treating their respective customary and religious laws in accordance with what has been done with Law no. 1 of 1974 concerning marriage.

The concept and meaning of the principles of civil procedural law in martial law

Keywords: principles of civil procedural law, principles of civil procedure, martial law
 The article reveals the meaning of the concept of principles of civilprocedural law, its relationship with other related concepts, in particular, with the conceptof «principles of civil procedure», defining the limits of their application. The conclusionis substantiated that the purpose and tasks of civil proceedings reveal the essence ofthe principles of civil procedural law. The essence of the principles of civil procedural lawis revealed through their features. Different approaches in the science of civil procedurallaw to determine their characteristics are analysed.The definition of the principles of civil procedural law is formulated, which are thebasic ideas, fundamental principles of the tasks and objectives of civil justice, enshrinedin the rules of civil procedural law, which reflect the specifics of the subject and methodof legal regulation of civil procedural law relations and are in a dialectical relationshipand interdependence with other elements of the mechanism of legal regulation.The functional purpose of the principles of civil procedural law is directly related tothe impact on legislative activity, becoming its guideline. On the other hand, externalfactors can influence the principles themselves and the mechanisms for their implementation.The peculiarities of the implementation of some procedural actions in martiallaw, which are reflected in the draft Law of Ukraine «On Amendments to the Code of AdministrativeProcedure of Ukraine, the Civil Procedure Code of Ukraine and the CommercialProcedural Code of Ukraine (concerning the conduct of proceedings under martiallaw or state of emergency)» № 7316 and related to the implementation of the principleof openness of civil proceedings. The peculiarities of court summonses andnotifications for the period of martial law or state of emergency are revealed, the author'sopinion on the proposed mechanism of realization of the principles of openness of civilproceedings, equality and justice, legal certainty is stated. He substantiated the conclusionthat the legislator did not consider the system of principles of civil justice to ensureaccess to martial law, and some provisions of the law contradict the principles of opennessand several constitutional principles such as equality and justice, legal certainty.

Subject and subject jurisdiction in the plane of legal certainty: problems in civil procedure law

This article is devoted to the subject and subject-matter jurisdiction in the plane of legal certainty. The article analyzes the problems through the prism of legal certainty, arising when attributing a case to the competence of courts: general, administrative and economic because the civil legislation does not enshrine any rules of attributing a particular case to the competence of a particular court. Ukraine in 2014 chose the European vector of development, so the legislation, in particular the civil procedure, must meet the criteria of the rule of law, the foundation of which is the rule of law. The interrelation of subject and subject-matter jurisdiction and the rule of law is revealed through the elements of legal certainty, namely: clarity, precision, provision of law, the ambiguity of its norms, established court practice, mandatory execution of court decisions, finality of court decisions. Considerable attention to this topic was paid by scientists A. Savchuk, A. Tkachuk, and A. Monayenko. The authors analyzed quite a few decisions of the European Court of Human Rights and noted that since the civil procedure law does not contain criteria for distinguishing the subject and subject jurisdiction, so a significant role is played by the court practice, which should be established and stipulated. According to the authors, this does not mean that the Supreme Court should not be able to deviate from its previous legal positions, as the development of judicial practice is not contrary to proper law enforcement, as the lack of an evolutionary and dynamic approach prevents any changes or improvements. The Supreme Court in such situations is only required to provide a more substantive justification for deviating from previous legal positions. As a result of the study of scientific works, and court practice, we analyzed each criterion of delimitation of subject and subject-matter jurisdiction, which were made in the exercise of judicial proceedings by the courts, and gave examples from judicial practice. The legislator is obliged to fix them at the level of the civil procedural law, which in turn will promote public confidence in the state, and the judicial system, to ensure the proper attitude to the law and the law as a whole.

Mediation Regulation Re-Arrangement’s Efforts At The State Court Based On Confidential Principles As The Parties’ Protection

Mediation has a confidentiality principle as an advantage that should be able to safeguard the reputation of the disputing parties. Still, mediation arrangements in district courts are influenced by the principle of open trial to the public, causing problems, which are; how is the confidentiality principle-based mediation arrangement in district courts in providing protection for the reputation of the party in the dispute and how efforts to reform mediation arrangements in court to realize the confidentiality principle in settlement of civil cases in district courts which is oriented towards legal protection of the reputation of the litigant by using normative legal research that uses primary, secondary and tertiary legal materials collected by document study and then analyzed using descriptive, comparative, evaluative and argumentative techniques. The conclusion is that the mediation procedure in court is regulated by the Supreme Court Regulation Number 02 of 2003 then replaced by the Supreme Court Regulation Number 01 of 2008. Finally, the Supreme Court Regulation Number 1 of 2016 has regulated the principle of confidentiality but has not fully regulated the principle of confidentiality so that efforts are needed. Regulations on mediation experience law unification and reformation of the civil procedural law. The House of Representatives and the government form a special law to regulate mediation to become the legal basis for laws and regulations that use mediation.

The Problems of Proving Electronic Evidence


 
 
 
 The purpose of writing this article is to present the results of research on the problems in the existence of electronic evidence in proving civil cases, criminal cases, and state administrative cases, as well as finding solutions to these problems. This article was written using a normative legal research method with a statutory approach and a conceptual approach. The results of this study determine that there is a need for synchronization of rules regarding electronic evidence as regulated in Law Number 11 of 2008 concerning Electronic Information and Transactions as amended by Law Number 19 of 2016, and rules of procedural law, both legal criminal procedure, civil procedural law and state administrative procedural law.
 
 
 
 Keywords: Electronic Evidence, Synchronization, Procedure Law
 
 

Resolution of Cases for Consumer Protection under Civil Procedure in Poland. Selected Issues

Summary The article addresses selected issues related to the resolution of cases for consumer protection under civil procedure in Poland. Although consumer law is mainly the domain of substantive civil law, in civil procedural law there are also normative solutions concerning this issue and they will be discussed in the article. The author will present new legal instruments aimed at increasing the effectiveness of consumer protection in civil proceedings, as well as the proposed changes that should be under debate.

IZUZEĆE OD JURISDIKCIJE U EUROPSKOM GRAĐANSKOM PROCESNOM PRAVU

The paper analyses the right to be exempt from jurisdiction (immunity) under customary international law and European civil procedural law following the interpretation of the Court of Justice of the European Union. The aim is to research the balance between this right and the right of access to the courts as its potentially restrictive factor in the case law of the Court of Justice of the European Union and to compare it with the case law of the European Court of Human Rights. In deciding the LG and Others v. Rina and Ente Registro Navale as the most important case in this regard, the Court of Justice of the European Union states that the national court before which the issue of exemption from jurisdiction arises, must be persuaded that there will be no violation of the right of access to the courts, if it accepts the immunity objection. In this way, the Court determined the limit of exemption from jurisdiction by allowing the waiver of jurisdiction for reasons of compliance with international legal obligations and noting the need to preserve fundamental rights. However, as to the terms of that limitation, the Court remained vague.

Consumer Dispute Resolution in Austria

Summary The author of this contribution deals with specifics of consumer disputes in Austrian civil procedure law. He analyses special provisions that address consumers in dispute resolution and general procedural rules that do not specifically apply to consumers but have their major impact on consumers. He gives an overview on the caselaw of the Austrian Supreme Court in which the Court has introduced several ways to protect the interests of consumers.

China-Korea Recognition and Enforcement of Judgments: From the Perspective of Reciprocity

Both China and Korea have provided for reciprocal enforcement of foreign judgments in their civil procedure law respectively, and in practice, a Korean court first recognized a Chinese judgment in 1999, a Chinese court first affirmed the existence of reciprocity in 2019 after twice refusal based on lack of reciprocity. Given the current situation, there are still inconsistencies in the operation of reciprocal standards between the two countries, which may lead to uncertainties for mutual recognition and enforcement. This Article provides an overview of mutual recognition and enforcement between the two countries and analyzes the similarities and differences in rules and practices, aiming to explore a set of feasible paths for promoting the smooth circulation of judgments between China and Korea.

Third Parties without Independent Claims in Civil Proceedings

The civil law process is based on the principles of adversarial proceedings and disposition. The principle of adversarial proceedings implies the exercise of the right of equality between the parties at any stage of the proceedings, and the equal distribution of the rights and duties conferred on them by this Code. The principle of disposition implies the freedom of expression of the will of the parties by the procedures established by this Code to know whether it is filling the claim, filing a motion, withdrawing the claim or other. In addition to the judge, the parties also ensure the running of the process. These are the plaintiff, defendant, and third parties. The institute of third parties in turn is divided into two branches: third parties with an independent claim and third parties without an independent claim. Third parties with an independent claim are almost equal in their rights and responsibilities to the plaintiff and the defendant, while third parties without an independent claim have certain restrictions. These restrictions put them under such legal pressure that in some cases easily regulated issues will, on the contrary, turn into difficult ones to regulate. For a third party without an independent claim to participate in the process, it requires the desire of one of the parties or of that third party itself. The issue of their involvement in the process largely depends on the reasoned reasoning of the parties, which is one of the shortcomings of the procedural order. It is true that without an independent claim, a third party is not the main subject of the case and is not directly involved in the decision. However, the purpose of the article is to prove the opposite of this fact. The article describes not only Georgian but also civil procedure laws of different countries, which contain certain differences compared to Georgian civil procedure laws. The comparative legal research used in the paper presents the main idea of the paper and sheds light on the real possibility of its realization. The given is manifested in the possibility of granting certain rights to third parties. Based on the case law applied and the analysis of the existing scientific doctrine, the conclusions will be summarized according to which the object of the article, the third party, deserves such enabling rights. The research will help to develop civil procedural law in so far as it is a topical issue today. Both doctrinal and non-doctrinal, comparative legal, and evaluative legal research methods are used in the paper.

The principle of transparency and openness of the judicial process and its full fixation by technical means in the civil proceedings of Ukraine

Keywords: principle of publicity and openness of judicial process and its full fixingby technical means, principles of civil proceedings, civil proceedings, information withlimited access, mechanism of legal regulation
 The article substantiates the relevance and necessity of further in-depthresearch on the principle of transparency and openness of the judicial process and itsfull fixation by technical means in civil proceedings of Ukraine, proves the objectiveconnection between the principles of civil proceedings and processes in society and themethod of the field of law, as well as between the very principles that comprise thesystem.It defines the principles of civil procedural law as the main ideas, fundamentalprinciples of the tasks and objectives of civil proceedings, enshrined in the rules ofcivil procedural law, which reflect the specifics of the subject and method of legal regulationof civil procedural law, as one element of the legal regulation of civil procedure,which are in a dialectical relationship and interdependence with other elementsof the mechanism of legal regulation.Different approaches to the disclosure of the essence and legal implementation ofthe principle of publicity and openness of the trial and its full fixation by technicalmeans, which are reflected in the scientific works of procedural law professionals ofthe past and modern researchers. It turns out that this principle is a constitutional,intersectoral, organizational principle of civil procedural law, which has a normativeconsolidation at both national and international levels of legal regulation.Based on the analysis of the legislation, the content of the principle of publicityand the principle of openness as components of the principle of publicity and opennessof the trial and its full fixation by technical means, exceptions to these principles, aswell as legal mechanisms for their implementation. The legal positions of the EuropeanCourt of Human Rights on the disclosure of information with limited access areanalysed. The conclusion is substantiated that the principle of openness and opennessof the judicial process and its full fixation by technical means is a complex principle,its implementation is ensured, on the one hand, by achieving the tasks and goals ofcivil proceedings, and on the other, by exercising the right to fair trial components —the right of access to justice.

Committal Order Claims in The Execution of Maintenance Orders: A Study From The Perspective of Civil Procedure Law

The implementation of maintenance orders is often a topic of discussion that never been neglected in the Syariah Court. The issue of maintenance is also an issue that is often discussed on most media platforms. In the post -Covid 19 era that is still plaguing, the Malaysian Syariah Judiciary Department (JKSM) receives 5 complaints a day about husbands not providing maintenance compared to only 5 complaints a month before the Movement Control Order (MCO) was enforced. The committal order discussed is one of the alternatives that can be applied for for those who are determined to get their alimony back. This article focuses on the committal order related to default in the implementation of the maintenance order from the perspective of the Civil Procedure Law of the Selangor Syariah Court 2003. The objective of the study is to identify the provision of committal for default of the maintenance order. Provisions covered include the process of submitting summons and notices, trial proceedings, and appeal process. This study is a qualitative study using document analysis and data collection approaches and analyzed using descriptive and inductive methods. The results of the study found that the committal order was effective in recovering the arrears of maintenance. The study also found that further studies need to be done in ensuring that the weaknesses in the implementation of the committal order can be overcome thereby improving the laws and procedures of the committal order

Putusan Verstek Pengadilan Agama Pada Cerai Talak Perspektif Keadilan Gender

Verstek’s decision is one of the court legal products that can have permanent legal force if there is no resistance effort (Verzet) from the defendant Verstek’s decision was dropped by a judge because the Tegugat (Respondent) who had been summoned should not come without giving reasons that could be justified by law. The verstek decision is based on article 126 HIR (Herzien Inlandsch Reglement) which states;
 
 The absence of the defendant at the first hearing immediately gave the judge the authority to decide on the verstek
 Resign the session and call the defendant once again
 
 Verstek’s decision which is an item of civil procedural law in general is also applied in the civil procedure law of the religious court. Therefore, in dealing with civil divorce cases in religious courts, judges can apply the verstek verdict. negative impact on the wife because in the verstek decision the wife is in a weak position, so that with the verstek verdict she has lost her right to defend herself, even though there is an opportunity to fight (Verzet) but it depends on the quality of the personnel from in terms of economics and education, judges must therefore be wiser in imposing Verstek decisions on divorce divorce cases so that there is an opportunity for the wife to provide information related to her personality so as to create gender equality in the court.

Dopuszczalność pozwania pracownika z państwa trzeciego przed sądem polskim na podstawie przepisów rozporządzenia nr 1215/2012 oraz kodeksu postępowania cywilnego

The EU Regulation 1215/2012, as well as the Polish civil procedural law regarding individual employment relationships are employee-interest oriented. The employee’s domicile is a specific form of privilege on the level of the national jurisdiction regulations establishing international competence of national courts. The domicile provides effective protection for the employee in case of a potential dispute with an employer,who initiates the proceedings. Unfortunately, neither the Regulation 1215/2012 nor the Polish civil procedural law provides for equivalent protection for a third state employee (an employee from outside the EU) compared to an employee domiciled in Poland. The paper argues that despite a one-sided regulation, suing a third state employee before a Polish court is in principle impermissible. When applying the objective criterion to determine whether there is a national jurisdiction to hear the case, the court should consider the need to protect the employee and his or her legitimate interests. The author posits that the employee’s interest constitutes a legal basis for assessing whether in the proceedings before a Polish court — as forum conveniens — it is possible to safeguard the rights of a weaker party of a particular legal relationship. If a choice of court agreement was concluded, suing a third state employee before a Polish court will not be possible. This is because the prorogation agreement is subject to Article 23 of the Regulation 1215/2012. This provision requires that for the prorogation of jurisdiction to be effective, the employee, as party to an agreement, must be domiciled in one of the Member States.

The Power of Digital Signature Evidence in Indonesian Civil Procedural Law

Enforcement of civil law is carried out through civil procedural law in order to provide justice for the parties to the litigation in order to make light of the case which was carried out in the evidentiary trial. Evidence is regulated in Article 164 HIR/284 Rbg. Nowadays the development of evidence has expanded so that electronic evidence appears after the enactment of Law Number 11 of 2008 concerning Information and Electronic Transactions, one of which is an electronic signature (digital signature). The problem that arises is how strong is the evidence in civil procedural law in Indonesia? So the purpose of this study is to determine the strength of evidence of electronic signatures in Indonesian civil procedural law. This study uses a normative type of research with a legal and conceptual research approach which is then analyzed deductively in order to produce legal arguments in a systematic, logical and theoretical manner. The results of this study found that the strength of evidence against electronic signatures differed depending on the type of electronic signature presented at the trial.

Magyar magánjogászok tudományos írásai Németországban (1920–1944)

The study of the scientific relations between Hungarian and German private law jurists between 1920 and 1944 is still a current research issue, the comprehensive presentation of which has not been undertaken by either the German or the Hungarian legal historians. This research task cannot be completely performed by the author of this study either. The research question is that among the Hungarian private jurists, who published his scientific results in German journals, in the columns of the Zeitschrift der Akademie für Deutsches Recht and in the Zeitschrift für osteuropäisches Recht, and on what topics and in what way was it approached. The study covers private law in the broad sense, so in addition to general private law, it also covers writings on family law, commercial law and civil procedure law. When evaluating these questions, the role of the given author in Hungarian scientific public life is also a research aspect.

Juridical Review of Citizen Lawsuit in its Application in Indonesia

In Indonesia, there are people who feel that the fulfillment of public facilities provided by the government has not been fully fulfilled. This has an impact on the disappointment of the people who feel that their rights have only been violated or not fulfilled by the government. The community then files a lawsuit to the Court using the Citizen lawsuit method Lawsuits. Many of these lawsuits were rejected by the courts because they were deemed not to meet the elements of the Citizen Lawsuit . Citizen Lawsuit is a citizen's right to sue which is intended to protect citizens from various losses due to actions, policies or decisions made by the Government. Although b many lawsuits are filed using the Citizen Lawsuit method but there are no laws and regulations governing the lawsuit that . This study aims to describe and analyze questions about what elements must be met so that a lawsuit is categorized as a lawsuit Citizen Lawsuit and Position Citizen Lawsuit in civil procedural law in Indonesia . The research method used was collected using normative research techniques and then analyzed qualitatively , namely an analysis that describes the data obtained in the form of sentence descriptions. Then a conclusion is drawn which is the answer to the problem. It is hoped that in the future there will be a definite rule regarding the model of the Citizen Lawsuit lawsuit in Indonesia, as well as the rules regarding Class Action and Legal Standing