Civil Proceedings Research Articles

Temporal development of subdural collections in infants with confessed abusive head trauma: a forensic neuroimaging study.

Estimating the age of injury in pediatric abusive head trauma (AHT) is a challenging task but potentially valuable for the identification of perpetrators. The aims of the study are (1) to describe the temporal development of different imaging features of subdural collections (SDCs), and (2) to provide novel age-diagnostic reference data for forensic-radiological expert reports. Using a multi-center approach and a 10-year study period, serial neuroimaging studies of 13 comprehensively investigated AHT cases (8 CT and 26 MRI scans) were analyzed regarding several subdural imaging parameters (SDC appearances, entities, components, and associated findings). Due to confessions by perpetrators, the time points of the trauma were presumed unique and known in all cases facilitating correlation of imaging findings with time. Hyperdense SDCs in CT were found up to 9 d post-injury (p.i.), CSF-like SDCs in CT or MRI as early as from the 3rd hour p.i., and subdural membrane formation as late as from day 283. The heterogeneous variant of the subdural hematohygroma was observed to be the dominant SDC entity between 3 h and 22 d p.i. The tadpole sign was detected in MRI between 3 h and 46 d p.i. Certain subdural imaging findings may be helpful for estimating the age of injury in AHT. Subdural membrane formation is demonstrated to be a late finding and the tadpole sign is an early phenomenon p.i. The data corroborated that the sediment but not the supernatant has the potential for being valuable for age-diagnostic aspects. Question Reliable evidence-based data on the development of SDCs is sparse but required for expert opinions on pediatric AHT. Findings Reference data on the evolution of the imaging appearance of SDCs and associated phenomena in confirmed cases of AHT are provided. Clinical relevance As there is a great need for estimating the age of injury in criminal and civil proceedings, many clinical radiologists are confronted with the diagnostic and forensic aspects of AHT that are addressed in the present study.

On the Issue of Unification of Legislation on Forensic Examination in the Civil and Administrative Proceedings

The article deals with the comparative analysis of the procedure of forensic examination commissioning and carrying out in arbitration, civil and administrative legal proceedings. The author examines procedural codes regulating the expertise and identifies the differences in courts’ approaches to its commissioning and to judiciary powers, rights, and responsibilities of experts. Special attention is paid to court limitations regarding examination commissioning on its own initiative in the arbitral procedure as well as to its broader powers in civil and administrative proceedings.The article also analyzes the need to unify the legal regulation of forensic activities, which in the author’s opinion will lead to increased predictability and transparency of legal proceedings, improve the quality of expert opinions and reduce the risk of legal errors. The author emphasizes that, despite the differences in legislation, basic principles of carrying out forensic activities remain consistent, which makes the measures on procedural norms unification not only possible, but also the necessary ones to enhance effectiveness of legal proceedings.The paper proposes specific unification measures that will help eliminate existing legal uncertainties, improve the quality of justice, and create a more uniform judicial practice.

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.

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.

Claim in a civil proceeding Ancient Rome

The author points out that the lawsuit, as a legal institution, has an extremely long history. Like most civil institutions, its origins are connected with the law of Ancient Rome. The article is devoted to the analysis of the institution of the claim in the law of Ancient Rome. It is argued that subjective material rights were perceived by Roman legislators, court officials and lawyers not from the point of view of their material content, but the ways of protecting these rights. Claims were not derived from subjective material rights, but, on the contrary, they could confirm their existence. Subjective material rights and their judicial implementation were considered as one whole, preventing the Romans from dividing the law into material and procedural law. It is indicated that the lawsuit did not act as a universal procedural tool that protected against all possible civil offenses. Roman law developed as a system of actions that provided protection in a situation where the few laws in the field of civil law were outdated and could not effectively provide protection to the individual. The peculiarity of the claim within three forms of civil process of Ancient Rome is revealed: legislative, formulary and extraordinary. In the period of the legislative civil process, the claim had to be presented to the court in such a way that it repeated the verbal norm of the law, which the person referred to in his case, otherwise he lost it. Quite often, the verbal voicing of one’s claims had to be accompanied by certain gestures literally to the norm of the law. At the time of the formal civil process, the plaintiff presented the claim to the court also orally, but without observing the claim formalism, which made it difficult to access the court. At that time, the praetors began to record the claim in writing in a special act-instructions, where the judge was given instructions on how to resolve the case. With the help of these acts, praetors could protect social relations not regulated by custom or law. The extraordinary civil process brought the institution of the lawsuit closer to its modern understanding: an oral, and then a written claim by the plaintiff to the defendant, which must be decided by the court. The lawsuit was considered as a posed question, to which the court decision should give an answer.

The application of the Constitution of Ukraine during the settlement of civil and economic cases in terms of compensation for property damage in the case of decisions on exemption from criminal liability on the basis of Art. 49 of the Criminal Code of Ukraine

It is pointed out, the erroneous application by the courts of the economic and civil links as evidence of the decision of the criminal court to close the criminal proceedings in connection with the expiration of the terms of bringing to criminal responsibility, as a non-rehabilitating circumstance during the establishment of property damage in the resolution of relevant disputes. The author notes that, from the available access to court decisions and their analysis, it is clear that when considering cases related to the compensation of property damage, not every court provides a correct assessment of the legal nature of the closure of criminal proceedings, which leads to the incorrect application of the requirements of procedural legislation in terms of the adoption and evaluation of evidence. The article examines the problematic issue of the application of the practice of Ukrainian civil and commercial courts in resolving issues of compensation for property damage in the presence of a decision to release a person from criminal liability due to the expiration of the statute of limitations (in particular, the decision of the Supreme Court of Ukraine), as well as theoretical aspects related to this issue with reference to the norms of the Constitution of Ukraine and the Convention on the Protection of Human Rights and Fundamental Freedoms. According to court practice, in Ukraine, the expiration of the statute of limitations in a criminal case does not automatically mean the absence of civil liability for the offense committed. In cases where a person has been acquitted in criminal proceedings due to the expiration of the statute of limitations, there may still be grounds to seek civil damages for property damage. Ukrainian courts may take into account such factors as the nature of the offense, the amount of damage caused and the evidence provided when determining liability for compensation in civil cases. Civil proceedings in this case should be separate from the criminal case with the need to focus on legal responsibility for the property damage caused in the presence of relevant admissible evidence submitted by the party in the case. As of today, it is extremely important to effectively navigate the peculiarities of such cases and to achieve the correct interpretation of evidence in cases of potential compensation for property damage in civil proceedings.

State of scientific research problems of judicial proceedings in civil jurisdiction

The article reveals current problems and the state of scientific research on judicial proceedings in civil proceedings. In particular, special attention is paid to the issue of justice. The definitions and content of justice given by both scientists and its normative basis are analyzed. It is established that some scientists define justice as the main function of the court, while others define it as a form of activity of the court itself. The proposed author’s definition of the concept of «justice». Issues of access to justice are highlighted. It is suggested that the issue of access to justice be classified as one of the main principles of the civil process. The availability of justice and access to court is considered in the context of the concept of basic human rights and freedoms. Access to justice is defined as a combination of such interrelated elements as unconditional freedom, state- guaranteed opportunity and equality of a person whose rights have been violated to apply for judicial protection of his rights and legitimate interests to a competent court; the duty of the court to accept the case for its proceedings, without applying formal reasons for refusal. Application of universal and unlimited court jurisdiction; guarantees of competitiveness, proper judicial procedures, which ensure reasonable terms of consideration of the case. Particular attention is paid to the main principles recommended by the Committee of Ministers of the Council of Europe to member states regarding measures that facilitate access to justice. The opinions of scientists revealing the meaning of such principles as simplification of court proceedings, acceleration of proceedings and court costs are established. The work analyzes official statistical data for 2020 - 2023, regarding the number of cases that were considered in the order of simplified legal proceedings in all courts on the territory of Ukraine. It was concluded that, in minor cases, it would be appropriate to develop and implement national standards that would allow individuals to independently fill out understandable standard forms of procedural documents and submit them to the court, without consulting legal experts. It is proposed to use a differentiated approach to determine the size of the court fee depending on the person’s income or depending on the degree of difficulty of the case, taking into account the procedural costs and time for consideration of the case.

The dispute about the law in the claim about the appeal of notarial deeds or the refusal to execute them

The article is devoted to the disclosure of the concept and essence of the dispute about the right during the consideration and resolution of a civil case on challenging notarial actions or refusal to perform them. It is noted that historically, for a long time, appeals against a notarial act or refusal to perform it were considered as undisputed cases and were resolved in a civil process by way of a separate proceeding. But with the adoption of the Code of Criminal Procedure of Ukraine and its implementation, this category of civil case was classified as disputed, and therefore was already considered by the procedure of legal proceedings. The change in the order of consideration of the case led to the fact that both theoreticians and practitioners began to understand differently the nature of the «dispute about law» in this category of civil case, which had consequences not only in terms of the validity of classifying it as a case of legal proceedings, but also in the field civil jurisdiction. The author argues that when filing a lawsuit to challenge notarial actions or refusal to perform them, a civil law dispute arises, which arises not only from notarial procedural legal relations, but also from civil legal relations. Civil legal relations are the main legal relations, and notarial procedural legal relations are derivatives arising on the basis of the former and ensuring their implementation. That is why a civil law dispute arises between the person whose rights and interests are affected by the notarial act and the notary, as parties to this case, which is burdened by notarial proceedings. The peculiarity of this civil law dispute based on a claim to challenge a notarial act or refusal to perform it is that only one party claims material or non-material benefit, and the other does not. This is what distinguishes a claim for contesting notarial actions or refusal to perform them from other claims, where a dispute about civil law, which is burdened by notarial proceedings, arises between two subjects who simultaneously claim material or non-material benefit, which is behind the realization of the subject objective civil law. In connection with the encumbering of subjective civil law by notarial proceedings, when filing a lawsuit to challenge notarial actions or refusal to perform them, the purpose of civil proceedings is also complicated: in addition to the protection of subjective civil rights, freedoms and interests, judicial control of legality is carried out notarial activity.

Integration of legal databases in the context of EU accession aspirations

It is determined that the process of cooperation within the framework of the European Union has increased the need for identification and exchange of legal information coming from regional and national authorities at the European level. This need is partially met by digitally accessible legal information and the widespread use of the Internet. However, the exchange of legal information is largely limited by the differences that exist in different national legal systems, as well as the differences in their technical systems used to store and display the law on their respective websites. This hinders interaction between the information systems of national and European institutions, despite the increase in the availability of documents in electronic format. At the same time, the interconnection of national and international legal information from various sources and their presentation in the form of linked data of legal knowledge will undoubtedly improve the process of searching for legal information, expanding the possibilities of inquiries that are not currently possible. Moreover, in an increasingly digital society, where the number of cross-border civil and criminal proceedings is rapidly increasing, and given the complex diversity of different legal systems in the EU Member States, the simplification and facilitation of cross-border judicial cooperation is essential to ensure effective access of citizens and businesses to justice. At the same time, the system of identification and metadata should be well known to citizens and specialists in the field of law. In addition, to increase the chances of finding case law that is supported by an identifier and metadata, these court decisions should be searchable - by identifier and a minimal set of metadata - through a common interface. The exchange of digital evidence in the EU is also an important aspect. Currently, countries cooperate using private international law in cross-border criminal cases and exchange digital evidence based on these tools. The choice of tool depends on the countries involved and the type of information required.

Значение подсудности в уголовном и цивилистическом процессе

The relationship between the procedural and judicial significance of jurisdiction, as well as its conditionality by criteria of a procedural and judicial nature, is considered. The predominantly technical significance of the institution of jurisdiction for procedural branches of law is determined. Examples of manipulation of jurisdiction in the field of arbitration, civil, and criminal proceedings are given. The refusal of alternative jurisdiction in criminal proceedings is justified. It is concluded that violation of the rules of jurisdiction is not considered an absolute basis for the reversal of court decisions.

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.

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.

Подготовка дела к судебному разбирательству в системе цивилистического судопроизводства

The article justifies that preparation of a case for trial is not an independent stage but rather an obligatory element of civil or arbitral proceedings; so, the court and parties to a case may exercise any rights stipulated by procedural laws and have to discharge the obligations imposed on them at case preparation.

Pre-trial protocol in civil proceedings

The scientific article examines the legal nature of the pre-trial protocol in civil proceedings. The institution of judicial evidence was subject to change in connection with the latest reforms of the civil procedure legisla-tion. This has led to the emergence of new institutions and the pre-trial protocol in civil proceedings is such. Until 2022, the Civil Procedure Code of the Republic of Kazakhstan (hereinafter CPC RK) did not have di-rect legal regulation of this institution, and accordingly, no theoretical studies were conducted on this issue. In civil proceedings, the prototype of the institute of pre-trial protocol was a foreign legal institution, such as the disclosure of evidence and the exchange of arguments, characteristic of English and American procedural law. The practical necessity of many aspects of such a phenomenon as the pre-trial protocol, the incomplete-ness of theoretical developments and the need to improve legislation determined the relevance of the topic of the scientific article. It should be recognized that the mechanism for drawing up a pre-trial protocol, in fact, designed to ensure the implementation of the principles of competition and equality of the parties, was not sufficiently enshrined in the civil procedural legislation of the Republic of Kazakhstan. At the same time, consistent legislative regulation of the activities of bodies for the disclosure of evidence in civil proceedings is required. The institution of pre-trial protocol in civil proceedings requires regulation and integration at the legislative level, since the mechanism of conclusion in the current CPC of the Republic of Kazakhstan has not been fully investigated.

Kłamstwo procesowe i zaprzeczenie jako forma nadużycia prawa w procesie cywilnym

"Both, false statement and denial of facts can be a form of defense in civil proce-edings, but also source of claims. evidentiary agreement False statement is both violation of good practice and an abuse of procedural law. Court is allowed to apply measures referred in Article 2262 § 2 k.p.c. and 103 § 1-2 k.p.c. on participant who brings forth false statements during civil proceed-ings. However, in order to apply measures referred in Article 2262 § 2 k.p.c., it is necessary to prior instruct this participant about that possibility. General rejection of facts is not an abuse of procedural law because it is a vio-lation of law (Article 127 k.p.c. and 210 § 2 k.p.c.). That is the reason why it does not cause any effect during civil proceedings. However, it is not always possible to apply Article 230 k.p.c. in that situation. Denying facts in last phase of civil proceedings is a form of violation of good practice, but it will take effect if opposite party did not present evidence in the complaint or in the statement of defense and proceedings in commercial cases apply (Article 4855 § 1 k.p.c.). It is allowed to penalize that party with measures referred in Article 2262 § 2 k.p.c. In other cases court may consider this procedural. action as ineffective, however the rule should be to apply Article 2262 § 2 k.p.c. and 103 § 1-2 k.p.c. Denial of fact that can be proven only by an evidence which is prohibited by ev-identiary agreement may also be a form of abuse of procedural law."

Doręczenie pierwszego pisma w sprawie za pośrednictwem komornika sądowego w postępowaniu nieprocesowym

The Act of 4 July 2019 amending the Act – Code of Civil Procedure and some other acts introduced regulations regarding the service of the first pleading by the court bailiff. After many discussions on the appropriate application of Article 139(1) of the Code of Civil Procedure in non-litigious proceedings, the amendment of 9 March 2023 added Article 511(1a) of the Code of Civil Procedure, according to which the service of correspondence by a court bailiff is mandatory when the presiding judge deems it necessary. The aim of the article is to discuss the evolution of bailiff delivery procedures in non-litigious proceedings, with particular emphasis on the scope and conditions for the application of the Article 511(1a) of the Code of Civil Procedure, as well as the consequences resulting from the incorrect execution of the presiding judge’s order. Keywords: court bailiff, service in civil proceedings, service of the first pleading, non-procedural proceedings

Zbieg egzekucji i zabezpieczenia roszczeń

The confluence of enforcement proceedings and injunctive relief, as well as the confluence of injunctive relief in civil proceedings have not been regulated in principal. As there are more and more problems arising at the confluence of enforcement proceedings and injunction reliefs, the act of 9 March 2023 on amendments to the act on enforcement proceedings in public administration and certain other acts (Journal of Laws No 2023.556, as amended) regulates the confluence of administrative enforcement proceedings and injunctive relief, the confluence of administrative security and judicial enforcement proceedings (Art. 775 of the Code of Civil Procedure), and the confluence of judicial enforcement proceedings involving injunction relief and injunction reliefs (Art. 773(1) § 3(1), § 3(2) of the Code of Civil Procedure). This article discusses the regulations set out in the act to the extent specified herein, as well as related interpretation problems as a result of which various solutions at the confluence of enforcement proceedings and injunction relief and the confluence of different securities are likely to be applied. The comments are not limited to the discussion of problematic issues, but included proposals of rational solutions, as well.

Braki w składzie organów strony w sądowym postępowaniu egzekucyjnym

Similarly to examination proceedings, also in enforcement proceedings legal persons and other organizational units cannot act directly, but rather through their bodies, or possibly, in the case of certain organizational units with legal capacity in accordance with Article 33(1) § 1 of the Civil Code, through persons authorized to act on their behalf. The effects of deficiencies in the composition of the debtor’s body are regulated autonomously in Article 818(1) of the Code of Civil Proceedings. In the case of deficiencies in the composition of the creditor’s bodies, it is necessary to apply by analogy Article 818 of the Code of Civil Proceedings, which regulates the effects of lack of procedural capacity.

Довкіллєве правосуддя в Україні та світі

The article is devoted to the study of domestic and foreign trends in environmental justice. To solve the set goal, the following research methods were used, in particular: the method of scientific observation is to form the topic and purpose of the research; comparative legal method in the study of foreign experience of environmental justice; logical method – for theoretical generalization and formulation of research conclusions. The main models of environmental justice that exist in the world include such as consideration of environmental cases by courts of general jurisdiction, consideration of environmental cases by judges specializing in environmental issues or specialized environmental divisions of courts, consideration of environmental cases by specialized environmental courts. Environmental courts, as specialized judicial authorities, deal with the resolution of environmental conflicts and the protection of the environment and function in particular in countries that are members of the European Union, such as Sweden and Austria. In Ukraine, environmental justice is carried out in the form of civil, economic, administrative and criminal proceedings. At the same time, civil, economic, administrative and criminal cases in the environmental sphere differ among themselves in terms of the type of offense, the subject of the dispute, the composition of subjects, etc. Judicial practice in the environmental sphere covers a wide range of environmental relations, in particular on atmospheric air protection, land protection and use of land resources, subsoil protection and use of minerals, protection of forests and use of forest resources, protection and use of territories and objects of the nature reserve fund, access to environmental information, waste management, etc. Environmental justice in Ukraine may be limited to the functioning of certain specialized environmental units in courts, or involve the formation of a system of specialized environmental courts throughout the country, including a higher specialized court. At the same time, the implementation of environmental justice will be more or less time-consuming and costly (depending on the model chosen for implementation).

On the issue of classification (division) of the subject of the claim

The article analyzes such a category as the subject of a claim, its place and role in civil proceedings. Disputes about the presence or absence of a legal relationship between the parties, about the obligations of the defendant, about the change or termination of the legal relationship are types of the subject of a claim. The authors give examples of the types and analyze the criteria for differentiating between the types of lawsuits on the subject of the claim. It is also noted that in disputes about the change and termination of a legal relationship the court realizes the exclusive powers granted by the legislator. The article puts forward two arguments about the limits of employing the types of the subject of the claim. The authors believe that there are no clear criteria for differentiating between the groups of lawsuits on the subject matter of the claim. Also, the authors find that in the practical field (in rule-making, courts) the subject of the claim is applied in general, without dividing it into groups. The subject matter of the claim, together with the existence of a dispute, affects the type of judicial proceedings. In judicial practice, there is an erroneous interpretation of the subject of the claim, which has negative consequences. The paper argues that the requirement to establish the fact of recognition of paternity should be considered in a lawsuit only within the framework of the requirement to establish paternity.