Civil Procedure Law Research Articles

Conference Summary of the Symposium on Foreign-Related Commercial and Maritime Trials of Courts Nationwide (Sup. People's Ct. China)

China's foreign judgment recognition and enforcement regime has been the least developed part of its private international law, as opposed to jurisdiction and choice of law. The regime remained almost immutable over three decades from the 1980s, even though the civil procedure law that established it went through several revisions. Under the present Civil Procedure Law (CPL), the regime consists of rules regarding qualified applicants, legal bases, and refusal grounds for recognition and enforcement. According to these rules, the creditor of an effective foreign judgment or the foreign court rendering it may seek its recognition and enforcement before a Chinese court. The Chinese court shall review the application based on international treaties China has concluded or acceded to, or the principle of reciprocity. If the effective foreign judgment has not proven to contravene the fundamental principles of Chinese laws and the sovereignty, security, and public social interests of the state, it will be recognized and enforced; otherwise, it will not receive recognition and enforcement.

Interdisciplinarity and research on the institutes of Civil Procedural Law: the case of the incident of resolution of repetitive demands

In legal research, the tendency has been the prevalence of legal theoretical-conceptual issues, centered on a disciplinary model, especially for the resolution of problems of a practical-professional nature. Considering the complexity that involves professional interdisciplinary research, the article aims to discuss the theoretical-methodological assumptions that may enable the dialogical analysis between distinct areas of knowledge to solve, at the practical-legal level, issues related to the repetitive claim settlement incident. To meet the proposed objective, we initially presented considerations on the importance of interdisciplinarity as a place of scientific production and its methodological face in the development of legal research. Next, we pointed out the theoretical-dogmatic analyses about the institute that is the object of the research in order to, in the context of complex knowledge, consider the contingencies of the factual reality that are not solved only from the specialty of one area, but demand other reflections and the interaction of content and methods from other fields of knowledge. Finally, in the form of brief considerations, reflective proposals were presented for the opening of interdisciplinary and professional analysis in the search for solutions to problems that make the relational dynamics in contemporary society increasingly complex.

The issuance and enforcement of interim measures in international arbitration under Chinese law

Abstract The issuance and enforcement of interim measures in international arbitration play a critical role for the parties to resolve the dispute and realize the final arbitral award. For arbitration seated in China, the power to issue interim measures traditionally vests exclusively in the Chinese Courts under the current Arbitration Law and Civil Procedure Law of PRC, except for limited types of arbitration. Aiming to align the Chinese arbitration law with international practices, the Ministry of Justice of China introduced the Arbitration Law of the People’s Republic of China (Amendment) (Draft for Comments) in July 2021 which for the first time empowers the arbitral institutions at the legislative level to issue interim measures. This paper provides a comprehensive overview of the current as well as the newly introduced legal framework in China for the issuance and enforcement of interim measures in foreign-related arbitrations. Although the Amendment recognises the power of arbitral tribunals to issue interim measures in arbitrations seated in China, whether measures issued in arbitrations seated outside of China could be enforced in China remains unclear and the existing Civil Procedure Law of PRC would need to be further clarified to synchronise with the latest reform in Arbitration law.

Competitiveness as a principle of criminal and executive law

The article examines the content and certain essential aspects of the principle of competition in the field of criminal and executive law. It is emphasized that this principle is interdisciplinary and characteristic of both the sphere of public legal relations and the sphere of private law. It is noted that competition as a legal basis is mandatory for all procedural branches of law, be it criminal procedural law, civil procedural law, commercial law, administrative law, etc. Attention is focused on the fact that most of the theoretical concepts of determining the principle of competitiveness in the field of public-legal relations are based on the achievements of scientists in the field of criminal procedural law. It is noted that this fact is quite logical, since in the field of criminal proceedings, especially in the judicial stages of its implementation, a classic adversarial process takes place between the parties to the proceedings, who implement the opposite procedural functions of prosecution and defense. It is emphasized that for the field of criminal enforcement law, it is appropriate to use approaches for determining adversariality in the field of criminal proceedings, but with certain essential differences. It is noted that the parties to the proceedings as an element of the reflection of competition in criminal enforcement law differ from the definition of the parties in the criminal process. It is indicated that the classic confrontation between the prosecution and the defense, which is natural for the criminal process, is absent in criminal executive law. It is emphasized that the determination of the parties as an integral element of competitiveness in criminal executive law should take into account the existing opposing interests in this field of law, such as public and personal interests. It is noted that the public interest in the field of criminal executive law is defended by state representatives, that is, officials of bodies and institutions for the execution of punishments, as well as the prosecutor, who performs the function of supervising the observance of legality during the execution of sentences, as well as applying other coercive measures related to the restriction of personal freedom of citizens. Personal interest, under such conditions, is defended by the convict and his representatives.

EXAMINING THE REGULATION OF INDEPENDENT PROCEDURE AT THE INDONESIAN INDUSTRIAL RELATIONS COURT

This study aims to examine whether the current industrial relations court procedural law system is sufficiently ideal as a reference for the settlement of industrial relations disputes in Indonesia and to test the urgency of regulating independent procedural law in the Court of Indonesian Industrial Relations. This is a normative legal research with a statutory approach, a conceptual approach and comparative approach. The result shows that the industrial relation court procedural law system is not ideal enough to accommodate the development and complexity of disputes that occur in Indonesian labor today. Simple, quick and inexpensive way of settling dispute is difficult to occur when the procedural law that is enforced still adopts or is unable to escape from HIR, RBg, RV as civil procedural law (colonial product), which has a general character. The Industrial Relations Court as one of the Special Courts must be able to show its independent character, including in regulating procedural law. Comparative studies with the state of Thailand, Malaysia and Japan are used in this paper in order to illustrate the importance of the regulation concerning the Industrial Relations Court procedures. Changes to the procedural law of the Industrial Relation Court are urgent to do in order to provide an effective and efficient means of dispute resolution that is able to represent simple, quick and inexpensive principles according to the needs or demands of workers and employers today

Book review: EU Civil Procedure Law and Third Countries: WhichWay Forward?, Edited by Alexander Trunk and Nikitas Hatzimihail. (Baden-Baden / Oxford: Nomos / Hart Publishing, 2021)

Book review: <i>EU Civil Procedure Law and Third Countries: WhichWay Forward?</i>, Edited by Alexander Trunk and Nikitas Hatzimihail. (Baden-Baden / Oxford: Nomos / Hart Publishing, 2021)

Pedagogy in Universiti Teknologi MARA (UiTM): Teaching and Learning Civil Procedure II

The Civil Procedure II course learning outcomes include organizing and preparing fundamental court documents and acquiring drafting skills. This subject assists final-year law students to analyze a wide range of interlocutory procedures in the conduct of various civil proceedings. Since students must prepare themselves to be litigation lawyers, they must be able to comprehend the material and use it in their legal practice. As such, the difficulty of teaching and learning the subject of Civil Procedure II must be examined in this new era. This paper will explore whether newfound applicable pedagogical techniques and instructional methods can improve the teaching and learn of the Civil Procedure II course at Universiti Teknologi MARA's Faculty of Law (UiTM). The purpose of this article is to examine the fundamental components and elements of teaching-learning and identify the challenges and problems that stand in the way of effective teaching-learning in the law of civil procedure II. Doctrinal content analysis is used in this paper's qualitative research approach to gain a deeper understanding of the conflict that exists when deciding how to teach the subject of Civil Procedure II effectively. The findings of this paper reveal that using newfound applicable pedagogy such as online learning tool in conjunction with in-person instruction may improve pedagogy in the teaching and learning of Civil Procedure II. The newfound applicable pedagogy to law school instruction is relevant for both lecturers and students in this 21st century.

Legal Gaps: Concept, Content, Problems of the Role of Legal Doctrine in Overcoming them

Abstract The presented article considers the essence and content of the most common defect in legal science—“legal gaps”. This study presents various scientific approaches to the definition of legal gaps. Considering various scientific approaches, the authors of this study formulated their original version of this concept considering its absence from the theory of penitentiary law. The study analyses the main conceptual approaches to the problem of the progressiveness of law in the historical context. The main features of legal gaps are named to become able to distinguish them from conflicts of law. The authors outlined a set of features indicating the presence of a legislative gap in a particular case and provided a scientifically sound classification of gaps. The article also focused on the main types of legal gaps. In addition, the authors addressed the presence of legal gaps in Ukrainian legislation. The originality of this study lies in the formulation of new theoretical conclusions and generalizations that will help identify, eliminate, and overcome gaps in civil procedural law.

TINJAUAN ANALISIS TAFSIR AHKKAM TENTANG UTANG PIUTANG (AL-QUR’AN SURAT AL-BAQARAH AYAT 282)

Debt is one of the activities that may not be separated from society, this is to solve problems in the economic field. However, in carrying out these debt transactions, the community often ignores the principle of prudence, one of which is recording or procuring witnesses in carrying out these debts. In terms of setting aside witnesses and records, this will have an impact on proving if one day there is a dispute in settlement of debts. So thus the author tries to raise Q.S al-Baqarah verse 282 which according to the author has a close relationship with the basis of non-cash transactions. The method used in this writing is a qualitative method, namely the author takes primary data from Q.S al-Baqarah verse 282 and analyzes it with the help of secondary data, namely all data that supports the problem being studied. After the data is analyzed, it is then described using qualitative methods, namely describing the results of the research in words. From the results of research on the analysis of Q.S al-Baqarah verse 282, the author gets a common thread regarding the obligation to record debt transactions, besides there are sentences that identify obligations, this verse has a correlation with evidence in terms of Civil Procedure Law in Indonesia.

Research on the reasons and regulation of the abuse of the objection system of civil procedure jurisdiction

The legal provisions on objection to jurisdiction are scattered in the legal provisions of the pretrial procedure of the Civil Procedure Law of the People's Republic of China and relevant judicial interpretations, and the content of the provisions is rough and the directivity is unclear. The party who raises the objection to jurisdiction is precisely using the loophole of the system to abuse the right of objection to jurisdiction in the civil procedure law. Therefore, this paper summarizes the reasons for the abuse of objection to civil jurisdiction in China, puts forward specific measures to limit the abuse of civil jurisdiction, and promotes the improvement of the system.

Exploration of Teaching Reform in Civil Procedure Law Course Based on Process Assessment

Exploration of Teaching Reform in Civil Procedure Law Course Based on Process Assessment

The procedural form of judicial conciliation procedure: Concept, legal nature, principles

The article is devoted to the study of the legal nature of judicial conciliation procedures int he civil process. On the basis of a theoretical analysis of the approaches to the concept of “procedural form of protection” existing in the procedural doctrine, the essence of judicial conciliation procedure as a part of civil and arbitration proceedings is revealed. The difference between judicial conciliation and extrajudicial conciliation procedures is shown. The onto-logical connection of the fundamental principles of civil procedural form and judicial conciliation procedures is proved. Guided by the achievements of the science of civil and arbitration procedural law and the materials of the practice of arbitration courts, the authors establish the degree and limits of the impact of the imperative and dispositive principles of state proceedings on the order of organization, conduct and results of judicial conciliation procedures. It is concluded that the excessive penetration of freedom into the sphere of judicial reconciliation contradicts the essence of the civil process as a form of administration of justice and can lead to abuse both by the participants in the trial and by the court. It is proposed to consolidate at the legislative level the imperative procedure for organizing and conducting judicial conciliation, its stages and stages, requirements for the candidacy of a judge-conciliator, his rights and obligations, as well as responsibility for the results of judicial reconciliation. The results of judicial reconciliation, their legal consequences are analyzed. The features of judicial conciliation in proceedings on cases arising from administrative and other public legal relations, which are also proposed to be regulated, are revealed. It is proposed to comprehensively fix the grounds, conditions and legal consequences of the judicial conciliation procedure in the field of resolving public legal conflicts.

The Role and Position of AI Evidence in Civil Litigation

&#x0D; &#x0D; &#x0D; &#x0D; This article examines the role and position of AI evidence in civil litigation. Despite the sporadic appearance of such evidence in court proceedings, it has the potential to revolutionize the evidential field and change our understanding of the nature and evidential qualities of existing types of evidence. After a thorough examination of the key technical specifications of AI, different classifications of AI evidence and various approaches to treatment of AI evidence, the author suggests how AI evidence should be treated according to the Slovenian Civil Procedure law. It is inferred that standard evidence rules can be applied to AI evidence, if the probative value of such evidence does not depend on the AI involved. In cases where probative value of evidence depends on the involved AI system, AI evidence can nevertheless be treated as witness or expert evidence, or, precisely, as ex parte affidavit or private expert opinion depending on the level of human or AI contribution to the content of AI evidence. The author concludes that black box and bias problems of AI systems generating evidence have to be properly addressed in order for AI evidence to achieve full evidential value and reliability.&#x0D; &#x0D; &#x0D; &#x0D;

Institute of Compensation for the Actual Loss of Time: Some Problematic Issues of Law Enforcement

Procedural abuses, which are the abuse of procedural rights and non-fulfillment of procedural duties, are among the most common and urgent problems of civil procedural law, which have a significant negative impact on the effectiveness of justice, limiting the possibility of exercising the right to judicial protection, countering the correct and timely consideration of cases, forming a disdainful attitude to the law and the court. The main mechanism for countering procedural abuses in civil proceedings, which has a wide scope of application, is the institution of compensation for the actual loss of time. The purpose and objectives of the study: to analyze the specifics of the legal regulation of the institute of compensation for the actual loss of time in historical retrospect and its current state; to check the validity of the legislator’s approach to attributing compensation for the actual loss of time to court costs; to identify problems of law enforcement and features of judicial practice that have a direct impact on the use and effectiveness of the legal institution in question, its practical applicability. Research methods: general scientific (analysis, synthesis, induction, deduction, abstraction, generalization) and private scientific (comparative legal, historical legal, formal legal, structural and functional). Conclusions: the institute of compensation for the actual loss of time, which has a long history of its development, despite the relevance and increasing need for the function it performs, remains the only universal mechanism for countering procedural abuses in civil proceedings. However, its gap-like and fragmentary legal regulation, ambiguous interpretation, and diversely developing judicial practice have turned the institution of compensation for the actual loss of time, which has a significant potential for its use, into a rarely used and ineffective legal institution.

Research on Subject Qualification of Anti-Monopoly Civil Public Interest Litigation

In recent years, with the development of the market economy, the number of illegal monopoly cases is increasing. The new Anti-Monopoly Law of the People's Republic of China (hereinafter referred to as the New Anti-Monopoly Law) was amended on June 24, 2022, in order to better maintain the order of the market economy, crack down on monopolistic behaviors and improve the legal system in the anti-monopoly field. Since then, the anti-monopoly civil public interest litigation system has formally entered the field of anti-monopoly law as a new system. However, the revised Law does not make detailed provisions on the civil public interest litigation system. In terms of the provisions on the subject of public interest litigation, the current law only stipulates that the procuratorial organ is the subject that can initiate public interest litigation, which makes it difficult for some cases infringing on social public interests to be well resolved through public interest litigation. Therefore, this paper will take Article 55 of the Civil Procedure Law and Article 47 of the Protection of Consumer Rights and Interests as the basis point, and briefly introduce the relevant provisions on the subject qualification of the anti-monopoly civil public interest procedure law in foreign jurisdictions. Based on this view, it is necessary for the main body of anti-monopoly public litigation to become more diversified to ensure that the main body of litigation can play substantial effect in judicial practice.At the same time, it is necessary to improve the existing procedures and improve the related supporting subjects' difficulties in providing evidence and the lack of litigation incentives , so as to provide ideas for the improvement of the subject qualification of public litigation in the field of anti-monopoly law.

The postulated model of the prosecutor's participation in the delibation proceedings in civil cases. De lege lata and de lege ferenda remarks

The subject of this study is a critical analysis of the current solutions in the field of civil procedural law, concerning the mechanism of ensuring the effectiveness and enforceability of foreign judgments on the territory of the Republic of Poland. As part of the 2008 amendment to the Code of Civil Procedure, the legislator removed from art. 1148, providing for the obligatory participation of the prosecutor in the delibation proceedings. Contrary to the previously and currently applicable regulations of the civil procedural law, it is proposed to leave the exclusion of the obligatory participation of the prosecutor in the delibation proceedings. At the same time, the possible introduction of the adjudicating court's obligation to inform the indicated public interest ombudsman about the initiation of delibation proceedings is under consideration, leaving the prosecutor an independent decision on whether to join the initiated proceedings (Article 59 in connection with Article 13 § 2 of the Code of Civil Procedure). Such a solution, providing for the obligation of the court to deliver to the prosecutor a copy of each motion initiating delibation proceedings, would be a compromise, because on the one hand it should not result in an excessive increase in the obligations of the prosecutor's office, but on the other hand, in doubtful situations it would allow for the real participation of the prosecutor in the proceedings.

PENERAPAN PERMA NOMOR 4 TAHUN 2019 TENTANG GUGATAN SEDERHANA (SMALL CLAIM COURT) DALAM PENYELESAIAN PENUMPUKAN (KONGESTI) PERDATA PADA PENGADILAN DI SUMATERA BARAT

The judicial process prioritizes legal certainty both in time and minimizes costs for the parties as Law Number 48 of 2009 in Article 2 and Article 4 paragraph (2) requires the existence of important principles in civil procedural law, namely Simple, Fast, Low Cost. Settlement of disputes at the first level with the a quo principle is certainly the hope of the whole community, especially those who want to resolve disputes through the courts, with the application of this principle, it is hoped that the settlement of cases, especially in the civil sector, will not be delayed and can be resolved in a short period of time, so that the costs incurred by the parties are not too high. However, the settlement of civil disputes through a simple trial under examination is regulated in a limited manner with a material claim value of a maximum of Rp. 500,000,000.00 (five hundred million rupiah) preceded by a dismissal process and the settlement period of this case is not more than 25 (twenty five) ) working days. The results of this study explain firstly the application of Perma Number 4 of 2019 procedures for resolving simple lawsuits at the District Court in West Sumatra can run effectively such as providing convenience for parties to access and register simple lawsuits both online and offline, educating Registrars and Judges about simple lawsuits so that can degrade errors (human error), as well as proven by a matrix of cases per year that are decided through a simple lawsuit. Second, the obstacle that often occurs in the process of resolving simple lawsuits is that judges often do not read the lawsuit comprehensively and immediately set a trial day so that when the trial takes place it is proven that the dispute cannot be resolved with a simple lawsuit (there are provisions in Articles 3 and 4 of this Perma). met) and ended up not being able to continue (NO).

The Recovery of State Losses through Corruption Asset Confiscation: Policies and Obstacles

The success of eradicating corruption is measured not only by the success rate of convicting perpetrators, but also by the rate of recovering state losses. The purpose of this article is to explain the government's legal policies regarding the recovery of state losses through the confiscation of corruption assets, as well as the various obstacles to its implementation. This normative/doctrinal study analyzes secondary data in the form of legal materials using conceptual and statutory approaches. A qualitative-prescriptive narrative is used to present the analysis. In general, the Indonesian government has issued a number of regulations that can be used to recover state losses caused by corruption. This is asserted, among other things, in the Criminal Code, the UNCAC, which the Indonesian government has ratified, and Corruption Laws, which stated that the recovery of state losses can be accomplished through both criminal and civil law procedures. However, the existing policies still face some obstacles, both in terms of unclear legal substance, the ability and commitment of law enforcement officials, to the limitations of facilities and infrastructure.

TUNTUTAN HAK DALAM PENEGAKAN HAK LINGKUNGAN (ENVIRONMENTAL RIGHT)

Claiming rights is a way to obtain protection for the rights of a person or legal entity granted by the court to prevent vigilante action (eigenrichhting). In his life humans choose several rights to defend including: first civil and political rights, second economic and social rights and the third is the right of solidarity or brotherhood. One type of human rights that has not been elaborated on is the right to the environment. Environmental rights are one of the rights that we need to fight for, considering that the environment cannot fight for its own interests because it is inanimate (unable to speak) so that other parties are needed to fight for it. It is necessary to expand access to justice in enforcing environmental law considering that filing rights claims in civil procedural law in Indonesia only relies on the provisions of the Het Herzeine Indonesich Reglement (HIR). such as class action, legal standing and citizen lawsuit. This paper will discuss the different characteristics of each of these rights claims in terms of environmental law enforcement. A class action lawsuit is a mechanism for filing claims for rights filed by representatives of groups fighting for their interests and their groups. An NGO lawsuit or legal standing is a mechanism for filing a lawsuit by an NGO, the lawsuit is filed if it conflicts with the articles of association of the NGO. Citizen lawsuit is a lawsuit filed by one or more citizens on behalf of all citizens addressed to the State.

Analysis of Judges' Decision on Witness Divorce Evidence in Donggala Religious Court

A judge's decision or commonly called court decision, is a written statement made by a judge as a government official who has been authorized to do so. The statement is made in a court case and it is open to the public after going through procedural law processes, to resolve or end a case to create legal certainty and justice for the disputing parties. This study used a qualitative case study approach. Data was collected through direct observation, in-depth interviews, and written material analysis. The results of this study show that the judges examining, deciding, and resolving divorce cases based on Indonesia marraige laws and regulations. Witness evidence considered by the Panel of Judges is a witness that meets the formal and material requirements. One of the material requirements is that the witness testifies to what he has seen, heard, and experienced, not to hear other people's stories. Civil procedural law witnesses who do not personally witness an event which is the reason for the parties to a lawsuit in court, is called de auditu testimony.