Civil Procedure Research Articles

The Doctrine of Inherent Powers under the Sudanese Civil Procedure Code: Its Origin, Nature and Scope

Abstract This article delves into the doctrine of inherent powers within the Sudanese Civil Procedure Code, with a specific focus on its origin, nature and scope. It posits that this doctrine empowers the courts to undertake actions essential for fulfilling their duties and ensuring the pursuit of justice, even in instances where such powers are not explicitly granted to them under statutory provisions. Additionally, the article examines the potential advantages and disadvantages associated with inherent powers and contemplates whether their exercise might pose a threat to the rule of law. It also explores the arguments both in favour of and against the possibility of rule-making within the framework of these powers and the potential impact of such regulations on the administration of justice. The article asserts that while a court's inherent powers are indispensable for the efficient dispensation of justice, it is imperative that they are not wielded capriciously or arbitrarily. Instead, their exercise should be guided by the principles of equity and good conscience.

Medical arbitration court: status and perspectives

Abstract. More than forty years ago, medical courts, which are arbitration tribunals (arbitration) for resolving medical malpractice disputes, emerged in the United States, while they remain relatively little known in our country. The problem of the study is the legal nature of medical disputes, the object is medical arbitration as a medico-legal phenomenon, the subject is the effectiveness of arbitration in resolving medical disputes. The issue of arbitrability, i.e. the admissibility of arbitration of a dispute: arbitration clauses are often challenged on the grounds that a patient could not reasonably express his or her will due to a medical condition. Despite conceptual difficulties, medical arbitration has been actively developed in the US since the 1980s. Its proponents emphasise a number of advantages over conventional litigation: speeding up the process, compensating a wider range of patients, reducing attorney fees, and improving patient safety. Opponents see as disadvantages the insufficient professional level of arbitrators, simplification of proceedings and its reduction to compensation payments, lack of connection between the activities of medical courts and improvement of the quality of medical care, transformation into an administrative procedure, "privatisation" of arbitration by large corporations. Some countries (South Korea, Indonesia, Mexico) implement arbitration in their country, but its results are rather modest. In Russia, medical disputes are characterised by increased complexity due to certain legal conditions. Alternative dispute resolution procedures are practically not used, and medical arbitration is expressly prohibited by the Code of Civil Procedure.

A tutela provisória de indisponibilidade de bens no regime da lei de improbidade administrativa

This study aims to analyze the constitutionality of the current regime of provisional protection of unavailability of assets, sanctioned in the Brazilian legal system by Law n. 14,230/2021. The methodology used in the investigation was descriptive-exploratory, with emphasis on the analysis of the legal arguments built over the last 20 years by doctrine and jurisprudence. Firstly, the contours of administrative impropriety in the national order and the jurisprudential, doctrinal and legal aspects related to the precautionary measure of unavailability of assets in actions of improbity were presented. Next, the essential characteristics of precautionary measures within the scope of Civil and Criminal Procedure were discussed, which contributed to the analysis of the constitutionality of the current regime of provisional protection of unavailability of assets. Finally, in the last topic, an analysis was made of the constitutionality of the new regime of provisional protection of unavailability of assets in actions of administrative improbity, concluding that the new legal device, which demands the presence of the double requirement of precautionary measures (fumus boni iuris and periculum in mora), is the one that best conforms to the legal principles in force in the Brazilian normative system.

O CÓDIGO DE PROCESSO CIVIL NA FORMAÇÃO DOS PRECEDENTES NO BRASIL

True precedent, the result of a scientific method of judgment, is adopted in countries with the Common Law legal system, which is based on customs. In line with global concepts that seek to converge the two main legal systems in the world – Common Law and Civil Law –, the Brazilian legislator included the use of precedents in article 926 of the 2015 Code of Civil Procedure. The objective is to promote legal certainty, standardize judicial decisions, reduce litigation and increase the credibility and efficiency of the Brazilian justice system. However, due to other provisions included in the Code of Civil Procedure and the divergent interpretation of the Judiciary in relation to the adopted system, Brazilian precedents have not yet fully achieved this purpose, requiring further study and possible adjustments by legal practitioners and the Legislature, whose intention is to discourage litigation.

Challenges Faced by Foreign Plaintiffs in Initiating Civil Litigation in Taiwan:Practical Issues Regarding the Application of Article 96 of the Code of Civil Procedure on Litigation Security

Challenges Faced by Foreign Plaintiffs in Initiating Civil Litigation in Taiwan:Practical Issues Regarding the Application of Article 96 of the Code of Civil Procedure on Litigation Security

Identification of Legal Psychology as an Independent Branch of Law

The science article conducts a theoretical and legal analysis of a new field of scientific knowledge – legal psychology from the standpoint of its perception as an independent branch of law. In the context of the above, the problematic aspects of legal psychology as a scientific, educational and applied branch of legal knowledge are studied on the basis of previously developed by legal psychologists levels of interaction and integration of law and psychology. The formation of legal psychology as a science and vectors of application of its achievements in judicial practice is analyzed. The author's approach in the formation of a new independent branch of law – legal psychology and determining its place in the classification of branches of law is proposed. The author emphasizes the need and urgent demand for the separation of legal psychology as a separate special branch of law that can regulate specific legal relations inherent in the fundamental (profiling) branches of law. The relevance of the article is due to the fact that in domestic legal science the division of the legal system in the field is assessed not in terms of its practical value, but rather in terms of confirming and defending certain scientific and theoretical ideas and concepts, contrary to the expediency of combining certain legal relations in the branch of law to achieve the desired social result through comprehensive study and regulation of specific relations. This, in turn, slows down the formation of new branches of law demanded by legal practice, among which legal psychology is singled out. It is emphasized that the question of the branch affiliation of legal psychology has not only theoretical but also practical significance, uniting individual legal relations in the field of law in order to achieve the desired social result through comprehensive study and regulation of these relations. Attention is drawn to the special classification of legal psychology as a special branch of law, as the latter combines the rules of law governing public relations and related to primary social relations aimed at concretization, strengthening certain rules of basic branches of law, while providing special legal regime for a particular type of social relations. By subordination in legal regulation, legal psychology belongs to the procedural types of branches of law, as it combines the rules of law that determine the procedure, the order for implementing substantive law (criminal procedure, civil procedure, commercial procedure, administrative procedure law). It is proposed to include legal psychology in an independent branch of law, given the presence of features that are inherent in the branches of law; the specificity of the regime of legal regulation; its direct connection with the needs of practice; recognition of its achievements in judicial practice; unification of certain legal relations in the subject of law; conditionality of functional purpose and the place of this industry in the legal system (its type in the classification of industries).

Obowiązek „dalszego zatrudnienia” regulowany art. 7555 Kodeksu postępowania cywilnego jako forma zabezpieczenia powództwa (byłego) pracownika

In his work, the author describes and evaluates the institution of securing labour claims by imposing an obligation on the employer to continue employing the employee until the proceedings have become final, introduced in Art. 7555 of the Civil Procedure Code. First, a description of the legal nature of the new type of security is made. In the next part, the author defines the catalogue of entities entitled to benefit from the security of Art. 7555 of the Civil Procedure Code, analysing the concept of an employee subject to special protection against termination of the employment relationship with or without notice. In addition, the study fleshes out the formal issues related to the application for security under Art. 7555 of the Civil Procedure Code and the issuance of an order granting such security. This is followed by a consideration of the permissibility of amending a security order that has been issued, and an analysis of the concept of “continued employment,” particularly in terms of what the obligation to continue employment means for the employer and what is the legal status of the entitled person during the period of security. The author also presents the issue of the compulsory execution of the issued security order and indicated when the security ceases. The work also considers the issue of the permissibility of the termination of the employment relationship established in the execution of the freezing order under Art. 7555 of the Civil Procedure Code. In addition, the author discusses in his considerations the rules of settlement between the parties when the action of the employee-author is dismissed. Also included are comments on the applicability of the provisions of Art. 7555 of the Civil Procedure Code to a change notice. Finally, the author evaluates the institution of security under Art. 7555 of the Civil Procedure Code, in which, while referring positively to the very concept of introducing a means of protecting employee claims, he points out the critically assessed aspects of the new regulation.

O CUMPRIMENTO PROVISÓRIO DA PENA E OS IMPACTOS NA EXECUÇÃO CIVIL: A INCOERÊNCIA DE UM SISTEMA MAIS PROTETIVO AO PATRIMÔNIO DO QUE À LIBERDADE.

This paper seeks to make a critical analysis of the guarantees involving the provisional execution of the sentence with the exhaustion of the second instance, confronting them with those existing in the Brazilian Civil Procedure and, at the same time, showing how the patrimony has been better protected than the Liberty.

De-formalization and electronicization of civil proceedings and procedural guarantees of its subjects

Modern civil procedure should, as an example, fully ensure the right to a court for its participants and, at the same time, guarantee obtaining a just and lawful judgment within reasonable time in public proceedings before an impartial and independent court in an effective manner. Not in every case is the overriding goal of obtaining legal protection in the form of a just and lawful judgment easy to achieve. Often, obtaining delayed protection destroys its effectiveness. An unenforceable court judgment becomes merely a "paper" one. A natural obstacle in civil proceedings, which often prevents immediate provision of legal protection to entities seeking it, is the applicable principle of formalism, expressed as a rule in the obligation to comply with the requirements regarding the form, place and time when undertaking activities, failure to comply with which may result in procedural sanctions in a given civil proceeding. The regulations introducing the principle in question are absolute in nature, they are not subject to waiver or modification. The remedy for the stiffening of civil proceedings with the "straitjacket of formalism" is its simplification (de-formalization), either by introducing new types of proceedings, shaped by special regulations differently from the regulations defining the general model of proceedings, or by introducing individual procedural institutions, the use of which in the proceedings will allow for a simpler and at the same time faster search for protection of subjective rights.

TUTELA PROVISÓRIA EM ARBITRAGEM

This paper explores provisional measures in the context of arbitration, highlighting their significance in contemporary procedural law. Arbitration, as an alternative dispute resolution method, faces challenges in its interaction with state jurisdiction, particularly regarding the granting of provisional measures. The study addresses the models of competence for granting these measures, the interaction between state and arbitral tribunals, and the influence of the Civil Procedure Code on the arbitral procedure. The systematization of provisional measures in the CPC and their implications in arbitration are explored. The article examines provisional measures before and during arbitration, including the role of the emergency arbitrator and the complexities of simultaneous requests to the judge and arbitrator. The importance of the interaction between arbitration and the judicial system for the effectiveness of the arbitral process is emphasized, contributing to the understanding and development of procedural law in arbitration.

The national doctrine of good faith in civil proceedings: a review of the main scientific works

The article examines the scientific works of national scholars on civil procedure and the practice of justice in civil cases with a view to understanding the evolutionary path of formation and development of national legal thought and legislation on such a legal phenomenon as the principle of good faith. The author analyzes the issues of good faith and misconduct in procedure, abuse of procedural rights, civil procedural liability and procedural coercion, and procedural duties as related legal categories of our study. This topic is insufficiently developed, as domestic proceduralists mainly focus their efforts on the problem of abuse of procedural rights in civil proceedings, with fragmentary attention to the issue of procedural good faith. The article examines the main works of modern Ukrainian researchers who have studied the issues of the principle of good faith in its various manifestations, which, in our opinion, are conceptually complete and serve the purposes of studying the chosen subject matter. The author summarizes that a number of researchers consider good faith through the interaction of the court and the parties in civil proceedings, characterize it as a comprehensive, evaluative legal category which distinguishes between lawful procedural behavior and abuse of procedural rights, and draw attention to the need for a legislative definition of the definition and criteria for abuse of law. The author examines related legal categories which allow identifying possible forms of abuse of procedural rights, classifies them and assesses the legal consequences of their exercise. The author proposes measures to encourage participants to the court proceedings to behave in good faith during the consideration and resolution of a civil case. The author determines that good faith in civil proceedings is of integrative importance and may include similar legal categories: prohibition of abuse of procedural rights; requirement of good faith fulfillment of procedural obligations; procedural estoppel or prohibition of other unlawful obstacles to the administration of justice.

Procedural Justice in Practice: A Comprehensive Study of its During the Implementation of the Criminal and Civil Procedure in the Basic Court of Gjilan and its Branches

Propose: This study aims to analyze the implementation of the core principles of procedural justice Understanding, Neutrality, Respect, and Voice in the Basic Court of Gjilan and its branches. Method: The perceptions and experiences of individuals involved in judicial processes will be evaluated through statistical, qualitative and quantitative methods, structured questionnaires, interviews, direct observation of court sessions (including communication, physical and emotional behavior of judicial staff), and analysis of audio/video recordings and official documentation, such as court decisions and communications. Results: The study will assess the level of dignity and respect experienced by individuals, investigate opportunities to voice opinions and concerns, evaluate the perceived neutrality of decision-makers, and assess their trustworthiness.

The Role of Electronic Notification in Accelerating the Litigation Proceedings in Civil Lawsuits: (A Comparative Study)

Objective: The purpose of the article research of the topic is represented in showing the role of E-notification in accelerating the litigation proceedings in civil lawsuits, as it saves time, effort, and expense, as well as addressing the problems of traditional notification, and propose recommendations to complete the legal system concerned. Method: In the current research, which is based on the analysis of legal texts, the analytical approach and the comparative approach were adopted. A comparison was made among the" Iraqi Civil Procedure Law No. (83) of 1969 amended by Law No. (10) of 2016", and the UAE Federal Civil Procedure Law No. (11). ) for the year 1992 amended by Law No. (15) for the year 2021 and its bylaw No." (57) for the year 2018 amended by Law No. (75) for the year 2021". Results: Some valuable findings have been revealed such as The electronic notification is an effective way to accelerate the judicial proceedings because it prevents the recurrence of notification, and reduces the objection to the judgments in absentia due to the certainty of informing the defendant in addition to the ease of the notification process, regardless of the location of the defendants. Conclusion: The research employs theories that Electronic notification is a result of the advancement of current communication techniques as well as the pervasive use of mobile devices and the Internet across a variety of aspects of economic and social life. Despite this development, the Iraqi legislator still maintains the same traditional means that he put in place when enacting the Civil Procedure Code. He excluded the electronic means from all judicial proceedings from the scope of the electronic signature law, including proceedings related to the judicial notification. On the contrary, the UAE legislator adopted electronic judicial notification in order to accelerate such civil litigation proceedings.

Impact of the amended Chinese Marine Environmental Protection Law on the law enforcement action of the Coast Guard — With a focus on the discharge of ballast water after Japan’s releasing of nuclear wastewater into the sea

After Japan released nuclear wastewater into the Pacific Ocean, China amended and promulgated the Marine Environmental Protection Law (MEPL) on October 24, 2023. The 2023 MEPL grants the Coast Guard extraterritorial jurisdiction over marine environmental protection. Meanwhile, it removes the content related to immunity for the disposal of radioactive substances and strictly prohibits the discharge of such substances into the sea. It is suggested that the 2023 MEPL will impact Coast Guard law enforcement actions, particularly in cases involving the punishment of marine pollution caused by nuclear wastewater. Additionally, China's Civil Procedure Law on jurisdiction over foreign-related infringement cases was also amended in 2023. Chinese courts have gained broader jurisdiction in foreign-related tort cases. As a result, Japanese parties will face the risk of civil damage compensation litigation due to the disposal of nuclear wastewater.

Posiedzenia zdalne w sprawach cywilnych jako odpowiedź na sytuację kryzysową wywołaną przez COVID-19

Crisis situation induced by the pandemic caused by the SARS-CoV-2 coronavirus has influenced the way of organization of hearings in civil cases. Undoubtedly, the possibility of remote meetings that was introduced by the Act on special solutions related to the prevention, counteracting and combating of COVID-19, other infectious diseases and crisis situations caused by them, was a novelty in Polish civil procedure. The main research intention of the article was to assess the impact of the regulation caused by the crisis situation on the current wording of the provisions of civil procedure. Following the amendment of the Civil Procedure Code of 7 July 2023, the provisions of the Covid Act were implemented in this area into the Civil Procedure Code. The article focused on assessing the impact of civil proceedings with the use of remote hearings on the implementation of the principles of fair trial, in particular the principle of open proceedings. Risks associated with the use of sentencing that have arisen in practice and ways of avoiding them have also been identified.

Zarys modelu zaskarżania orzeczeń sądowych wydanych w pierwszej instancji w postępowaniu cywilnym przed sądami federalnymi w Stanach Zjednoczonych. Analiza prawnoporównawcza i postulaty de lege ferenda

The article aims to formulate a proposal to improve the model of appealing judgments currently operating in Polish civil proceedings on the basis of the solutions in place in federal court proceedings in the United States. With the use of the analysis of relevant statutes and secondary legislation, case law and views of legal scholars, the most important aspects of the topic were presented with comparison to the Polish civil procedure regulations. As a result of the analysis appeals as of right and by permission were distinguished, the latter not being present in Polish civil proceedings, and de lege ferenda suggestions based on American solutions were formulated regarding the Polish civil proceedings.

Realizacja zasady kolegialności przed sądem drugiej instancji po nowelizacji Kodeksu postępowania cywilnego z dnia 7 lipca 2023 r.

The principle of collegiality is one of the guiding principles of the justice system. It is assumed to ensure a higher standard of proceedings and thus increases the legitimacy of the judgment in public perception. By the Act of 7 July 2023 amending the Act – Civil Procedure Code and some other acts, it was adopted that the court of second instance adjudicates in a single-judge panel. The new regulations not only raise a lot of controversies, but also cause a number of interpretation problems. This article considers the essence of the principle of collegiality in second-instance proceedings and discusses the effects of the changes introduced by the amendment of 7 July 2023.

Проблемы правового регулирования института представительства и смежных с ним институтов гражданского процессуального права

The article studies problems of the institution of representation in a civil procedure. Based on a retrospective analysis of civil procedure laws, foreign experience, the author concludes that the losing party to a case should not pay to the person that has provided unqualified legal assistance in such case. “Reasonable limits” as a criterion for determination of the amount of compensation of expenses on a judicial representative does not make the judicial practice more certain. Qualified legal assistance has a market price; however, it is reasonable to introduce state tariffs with regards to compensation of expenses on a judicial representative to avoid abusive practices.

Judicial declaration on electronic communications and legislative amendments contained in Law No. 26 of 2015 and related Resolutions Commentary on Law No. 26 of 2015 amending provisions of the Civil and Commercial Code of Procedure Decree Law No. (38) for

The Kuwaiti legislature issued Law No. 26 of 2015, an amendment to the Law No. 38 for the year 1980, regarding the provisions of the Civil and Commercial Procedure Code. There came to be a need for this amendment due to the rise of litigation rates before the courts. The amendment seeks to ease the pressure on the delegates in charge of advertising who use conventional methods in creating advertisements. It allows them to use complementary methods to these traditional methods in an effort to keep up with modern developments. Meanwhile, pressure is lifted off the advertising and executive departments that employ traditional means of advertising. Moreover, these current methods will aid in hastening the settling of cases before the courts in order to avoid the postponement of proceedings.

О скрытых процессуальных правилах рассмотрения дел о расторжении брака (часть первая)

The Family Code of the Russian Federation contains a lot of procedural provisions related to the process of dissolution of marriage between spouses. However, there are almost no such special provisions in the structure of provisions of civil procedure laws. It turns out that the marriage dissolution procedure does not differ from other civil case review and resolution procedures from the procedural standpoint. However, this is not the case from the objective legal standpoint. In this article, the author shows hidden but actually existing procedural rules for review of marriage dissolution cases that need to be taken into account and observed at resolution of respective civil cases.