Competent Court Research Articles

On judicial practice in the field of intellectual property

This article is devoted to the analysis of the legal positions of the Constitutional Court of the Russian Federation, formulated in its regular decisions in the field of intellectual property regarding the qualification of other forms of unfair competition, the administrative-judicial procedure for the protection of intellectual rights, the procedure for paying remuneration to authors of service objects of patent rights. It should be assumed that certain legal positions of the Court are not formulated quite correctly. In addition, it is concluded that certain legal positions contain rules of law, although of a temporary nature, the adoption of which is not within the competence of the Constitutional Court of the Russian Federation.

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.

ADAPTATION OF THE WORLD EXPERIENCE OF CONSTITUTIONAL JUSTICE IN THE REPUBLIC OF KAZAKHSTAN

The study contains an analysis of theoretical and practical issues of adapting the world experience of constitutional justice to the national legal system of the Republic of Kazakhstan. Based on general scientific and special scientific methods (historical and legal analysis, structural and functional, comparative legal, regulatory and others) the article discusses the experience of the best world practices, different jurisdictions, an attempt was made to create a model of constitutional justice that meets modern requirements in the Republic of Kazakhstan, aimed at the effective protection of human rights.The institution of constitutional control, which is constantly in different phases of transformation, is adapting in the legal systems of the states of the young democracy. The article presents a study of the adaptationof world experience in the development of the institution of constitutional control into the national legal system of the Republic of Kazakhstan. Issues of imperfection of the current legislation of the Republic of Kazakhstan regulating public relations related to the organization of constitutional proceedings, as well as ensuring effective practice of its application, have been identified.The study contains a number of practical proposals for improving the status and competence of the Constitutional Court of the Republic of Kazakhstan. In the orbit of the results -recommendations on expanding the powers of the constitutional control body to check for compliance with the Constitution of the newly adopted constitutional laws, as well as laws introducing amendments and additions (according to the mandatory procedure); to limit the powers of the President to challenge any existing legal acts in the Constitutional Court, to give the Constitutional Court the right to check for compliance with the Constitution of the existing international treaties of the Republic of Kazakhstan, as well as the official interpretation of the norms of constitutional laws on its own initiative, or at the request of the Supreme Court of the republic.

Sharia Economic Bankruptcy Law (al-Taflis) and the Dualism of Court Competency in Indonesia

Since Religious Court Law was amended by Law No. 3 of 2006, every sharia economic case is stipulated as the competency of the Religious Court. Conversely, Bankruptcy Law No. 37 of 2004 has never been synchronized with the amended Religious Courts Law. Therefore, the competent court does not handle sharia economic bankruptcy (al-taflis) cases. This study aims to ensure that al-taflis can be examined based on sharia economic principles by the most appropriate judicial forum. It is normative legal research using primary and secondary legal materials such as court decisions, statutory, books, journals, reports, and internet sources, then analyzing and synchronizing to get an ideal formula regarding how al-taflis cases are settled in court. The result shows that al-taflis is appropriately stipulated as the absolute competence of Religious Courts. Case studies of al-taflis court decisions settled by the Commercial Court so far, also indicate that sharia principles are not sufficiently considered in the decisions, even ignored. Therefore, it is urgent to make synchronization efforts by amending the Bankruptcy Law until it can accommodate the settlement of al-taflis case through Religious Courts. Otherwise, it will be only a utopian sharia economic bankruptcy law

The Introduction of a New Shareholder Dispute Resolution System in the Netherlands

The Dutch Parliament has recently made some radical changes in the system to regulate shareholder disputes in the Netherlands. The current system is flawed and underused. Shareholder disputes are mainly solved through an expensive bypass via the so-called inquiry-procedure at the Enterprise Chamber (EC). In the new system, the EC will be the only competent court for shareholder disputes. The relevant criteria are clarified and expanded. The procedure will be less formal and the EC can decide on related claims too. As a result, the new system aims to facilitate a swift settlement of all claims and conflicts between the parties involved in a shareholder dispute. A comparison with the highly used and popular Belgian system shows that there are some interesting differences. This article concludes by predicting that the new Dutch dispute regulation will be heavily used and will make the inquiry-procedure superfluous.

Предварительный нормоконтроль конституционных поправок в конституционных (уставных) советах субъектов РФ

The 2020 amendments to the Constitution of the Russian Federation significantly expanded the competence of the Constitutional Court of the Russian Federation. The Constitutional Court of the Russian Federation received the right to carry out preliminary normative control of constitutional amendments. This caused active scientific discussions. However, the issue of preliminary constitutional normative control of amendments to the constitutions and charters of the constituent entities of the Russian Federation has not been studied by legal science. At the same time, the constituent entities of the Russian Federation endowed their constitutional (statutory) councils with the right to preliminary normative control of constitutional amendments. The article analyzes the experience of three constituent entities of the Russian Federation (the Republic of Adygea, the Republic of Bashkortostan and the Republic of Yakutia), which have established constitutional councils. Based on the results of the analysis, it is concluded that the constitutional councils of the constituent entities of the Russian Federation are endowed with the right to preliminary normative control of constitutional amendments, but the procedure for such verification and its limits are not regulated, and the results are advisory in nature.

Juridical Analysis of Implementation of Multi-Purpose Financing Agreements at PT. Sinarmas Mataram Branch

This research aims to analyze the implementation of multipurpose financing at the Mataram branch of Sinarmas Multifinance, as well as to analyze the settlement in the event of a debtor defaulting in a multipurpose financing agreement at Sinarmas Multifinance Mataram branch. By using empirical legal research methods. The results of this research show that the implementation of multi-purpose financing agreements in multi-finance companies begins with good intentions between the two parties entering into the agreement. Settlement of disputes if the debtor defaults on the financing agreement, in this case PT. Sinarmas Multifinance has made its own rules in accordance with the provisions for the execution of fiduciary guarantees in PT multipurpose financing agreements. Sinarmas Multifinance is stated in the terms and conditions of the multipurpose financing agreement providing funding facilities in the provisions of Article 6. Multipurpose agreement made by PT. Sinarmas Multi Finance Mataram Branch is legally strong enough to protect its interests and conversely its protection for consumers is very weak, however the practice/procedure or mechanism of the multipurpose agreement implemented by PT. Sinarmas Multi Finance Mataram Branch has created a weak position for debtors. Apart from that, the execution process at PT. Sinarmas Multifinance Mataram Branch does not wait for the Court's Decision, which according to the rules in the execution process must first wait for the competent Court's Decision. multipurpose agreement, the parties, both creditors and debtors, should understand their respective rights and obligations and be responsible for implementing the agreement as agreed in good faith and complying with the prohibitions contained in the agreement so as not to cause disputes that cause losses to the parties.

التعويض المدني عن جرائم الذم والقدح الإلكترونية

Crimes of slander and denigration committed via social media have developed with the advancement of social media; hence it has become easy to commit such crimes using communication sites such as Facebook, Twitter, etc. These crimes have spread through these sites by perpetrators posting information that are disgraceful and discrediting towards others. To counter this crime, the Palestinian legislature established a legal system that could hold the accountable and impose the maximum penalties on them. Moreover, the law has provided the aggrieved person with the right to file a lawsuit before the competent court to claim the civil right of compensation to redress the moral damage caused by the crime. The compensation value is calculated through an expert's report who assesses the moral damages according to various criteria.

KELEMBAGAAN DAN KEWENANGAN PENGADILAN NIAGA TENTANG UPAYA HUKUM KEBERATAN TERHADAP PUTUSAN KOMISI PENGAWAS PERSAINGAN USAHA

Article 24A (5) of the 1945 Constitution regulates the composition, position, membership, and procedural law of the Supreme Court and subordinate judicial bodies. Initially limited to bankruptcy, postponement of debt payment obligations (PKPU), and commercial matters by Law Number 37 of 2004, the jurisdiction of the Commercial Court has expanded through other laws. This expansion raises two key issues: (1) The need for legal remedies for objections to decisions of the Competition Supervisory Commission (KPPU), and (2) The competence of the Commercial Court to address these objections. This research uses a normative juridical method, suggesting that legal remedies for objections to KPPU decisions should be regulated in a separate law, addressing decisions from institutions beyond the judiciary’s jurisdiction. The procedural aspects for contesting KPPU decisions, outlined in Article 45 of the Omnibus Law Number 6 of 2023, should first be determined within the competence of the Commercial Court as regulated by law. The current institutional arrangements and authority of the Commercial Court, as outlined in the Bankruptcy and PKPU Laws and laws on Intellectual Property Rights, should be revised through a dedicated Law on Commercial Courts. This law should define the court's structure, powers, procedural rules, and set time limits and sanctions for case resolution at both the Commercial Court and the Supreme Court.

THE STATE AND FEDERAL HIGH COURTS’ JURISDICTION OVER BANKER-CUSTOMER DISPUTE FROM THE PRISM OF DECIDED CASES: WHITHER THE MAGISTRATE COURT’S JURISDICTION

The Magistrate Court Law of most States in Nigeria, (including Oyo State) gives themjurisdiction over tortious acts of which detinue is one. Thus, where a bank customer, mistakenly makes an intra or interbank transfers to a wrong account whereof the money is withheld by the bank, and the withheld amountis within the monetary jurisdiction of the Magistrate Court, the customer, usually brings an action in detinue for the bank to release the money to him/her. This is usually donenotwithstanding that both the Supreme Court of Nigeria (SCN) and Court of Appeal (CA) have held that the State and Federal High Courts’ have concurrent jurisdiction over banker-customer disputes.This paper, adopts desk-based method in interrogating the jurisdiction of the Magistrate Court of Oyo State under the Oyo State Magistrate Court Law, 2011 vis-à-vis the jurisdiction of the State and Federal High Courts over banker-customer dispute based on decided cases to determine whether there is any conflict. It argues that the cases in which the SCN and CA have held that the State and Federal High Courts have and exercises concurrent jurisdiction over banker-customer disputes, were decided without reference to the jurisdiction of other equally competent courts including the Magistrate Court of Oyo State (and other States as well).It found that there is not jurisdictional conflict between these courts in relation to banker-customer disputes but symbiotic. The paper makes vital recommendations before concluding.

Exploring the Ne Bis in Idem principle: Material scope and application in EU law

This article examines and analyses the application of the ne bis in idem principle based on a final verdict of acquittal or conviction by a competent court where the cases have already been concluded by a final decision. It examines the principle concerning Article 4 of Protocol No. 7 of the European Convention on Human Rights (Article 4P7 ECHR), Article 50 of the Charter of Fundamental Rights of the European Union and its implication under Articles 54 to 58 of the Convention Implementing the Schengen Agreement (CISA). By reviewing previous literature, case law and fact sheets of the Court of Justice on the Ne bis in idem principle, the paper analyses the material scope of application of the principle and highlights the multifaceted significance of the Ne Bis in idem principle in criminal proceedings and the harmonisation of legal practices within the European Union. It reaffirms the principle's foundational importance in fostering fairness, legal certainty, and the protection of fundamental rights across a wide array of legal contexts. It elaborates and provides an interpretative analysis of the principle on the associated jurisprudence of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The paper also shows that the ne bis in idem principle serves as a common ground for judicial cooperation in criminal matters and mutual recognition of the Council Framework Decision 2002/584/JHA concerning the European Arrest Warrant (‘EAW FD’) and Directive 2014/41/EU regarding the European Investigation Order in criminal matters.

Особенности рассмотрения запроса третейского суда о содействии в получении доказательств

International Commercial Arbitration is subject of Article 27, Law of the Russian Federation No. 5338‑1, July 07, 1993, while Arbitration Proceedings in the Russian Federation are described in Article 30, Federal Law No. 382-FZ of December 29, 2015. If a dispute settlement goes to institutional arbitration, a party or an arbitration court has the right to apply to a competent court with a subpoena of evidence. This article features the publication and execution of subpoena of evidence by arbitration court for the recovery of evidence. This category differs from other arbitration proceedings in that it requires a procedural appeal that initiates the proceedings, i.e., the subpoena of the arbitration court, and an applicant, i.e., the institutional arbitration court that is seeking assistance in the dispute. The author used the methods of teleological interpretation and functional analysis to justify the admissibility of normative provisions that exclude the right to issue a subpoena by ad hoc arbitrators and to send subpoena of evidence directly by the parties to the arbitration proceedings. The parties to the arbitration should be involved as interested parties. The applicant and the stakeholders have limited procedural rights and obligations since the court neither carries out jurisdictional activities nor considers the dispute per se, but coordinates assistance functions. As a result, some procedural shortcomings make it impossible to clarify the form and content of subpoena, as well as the type and content of documents that should be attached to it, e.g., an arbitration agreement, a state fee payment confirmation, a resolution on the arbitral panel, etc. The author also analyzed grounds for refusal to execute a subpoena of evidence. Excessive discretion and Delphic language should not violate the rights and legitimate interests of third parties, thus preventing them from participating in the arbitration.

KEWENANGAN MAHKAMAH KONSTITUSI TERHADAP PUTUSAN PERKARA NOMOR 90/PUU-XXI/2023

The decision of the Constitutional Court in case Number 90/PUU-XXI/2023 in the general election trial Number 7 of 2017, the opinions of legal experts and the public are contradictory. There are political parties who say the decision is right, and there are also those who say the Constitutional Court's decision is wrong. Furthermore, the problem formulated in this study is based on this background, namely the competence of the Constitutional Court and the legal consequences of its decisions. The research method is a normative and applicable legal approach. This research uses library research, namely. Qualitative studies are carried out by collecting library materials, reading and taking notes, and carrying out analysis on library materials that have been selected for use. Based on the results of this research, the Constitutional Court has the competence to make decisions on matters relating to the age limit for candidates for President and Vice President, where the court's decision is definite and binding.

Improving the Legal Regulation of Indirect Judicial Jurisdiction in the Eurasian Economic Union

Free cross-border circulation of court decisions is a necessary condition for successful integration. One of the main obstacles that states face in creating legal regulation in this area is the problem of the admissibility of foreign judicial jurisdiction, or, in other words, indirect judicial jurisdiction. The article discusses options for solving this problem.Aim and tasks. To propose options for improving the legal regulation of indirect judicial jurisdiction in the Eurasian Economic Union.Methods. This work uses both general scientific methods of cognition: analysis and synthesis, and specific scientific ones: formal logical, formal legal, comparative legal, and the method of legal forecasting.Results. Improving the legal regulation of indirect judicial jurisdiction in the Eurasian Economic Union is possible through the conclusion between the member states of the Eurasian Economic Union of an international treaty establishing unified criteria for direct judicial jurisdiction and conditioning the acceptability of the jurisdiction of a foreign court on compliance with these criteria. In the event that the competence of a foreign court is not based on the jurisdictional criteria contained in an international treaty, it is proposed to provide for the possibility of recognizing a foreign court decision if two conditions are met: first, there is a close connection between the court and the dispute or approval of the jurisdiction by the defendant; the second is compliance with the rules on exclusive judicial jurisdiction established in the national legislation of the member states of the Eurasian Economic Union.The author also proposes an option for improving the legal regulation of indirect judicial jurisdiction at the national level, both in the Russian Federation and in other member states of the Eurasian Economic Union. In particular, the option of introducing provisions on indirect judicial jurisdiction into national legislation is being considered, which would condition the acceptability of the competence of a foreign court by observing the criterion of a close connection between the dispute and the court that issued the judicial act, or the approval of its jurisdiction by the defendant, and non-contradiction with the criteria of exclusive judicial jurisdiction.Conclusions. The Eurasian Economic Union needs to create an effective mechanism for the recognition of foreign court decisions, which can be achieved, first of all, by improving the legal regulation of indirect judicial jurisdiction.

Problems of selection of jurisdiction criteria in administrative proceedings

Based on the current legislation of Ukraine, the article examines the theoretical and practical problems of determining the criteria of jurisdiction in administrative proceedings. The relevance of the study determined by the fact that the dynamics of procedural legislation indicates the search for the most constructive option for regulating the institution of jurisdiction. The object of the study is the set of administrative procedural legal relations arising in relation to the competent court of first instance. The subject is the regularities of the emergence and development of administrative procedural legal relations regarding the jurisdiction of a legal case. The methodological basis made up of general scientific and private scientific research methods: functional, formal-legal, legal forecasting and others. It noted that jurisdiction must depend on the constituent parts of the claim, that is, on its elements. As a result, the criteria of jurisdiction can be the method of protecting the right and the object of the dispute, the basis of the claim and the parties to the dispute. The nature of disputed material legal relations affects the establishment of jurisdiction due to the legal basis of the claim. The elements of the claim and the type of proceedings are necessary and sufficient criteria for jurisdiction in administrative proceedings. It indicated that there is a need for a direct relationship between subject jurisdiction and the procedural form of case consideration. Different substantive jurisdiction of cases should imply a different order of consideration, since an error in determining jurisdiction actually leads to an error of the entire procedural form. Only such dependence can explain the necessity of subject jurisdiction. In administrative proceedings, it is necessary to distinguish the types of jurisdiction of the court of first instance: subject, subject, territorial. Subject jurisdiction involves determining the competent system of courts. Subject jurisdiction represents the differentiation of the powers of courts of the same system. Territorial jurisdiction as a species retains its content and division into subspecies. Further research should directed to the study of exclusive jurisdiction in administrative proceedings.

Judicial Competence and Consistency in the Constitutional Court’s Decision about Open List Proportional Representation

The Constitutional Court often creates new norms that affect the electoral system. Still, sometimes, the Constitutional Court decides cases examining the Election Law as an open legal policy. Therefore, the question is whether the Constitutional Court decides the case in accordance with its competence and consistency in determining cases No. 22-24/PUU-VI/2008 and No. 114/PUU-XX/2022 related to the application of an open list proportional representation system in the DPR and DPRD elections. The purpose of this study is to examine further the competence and consistency of the Constitutional Court in deciding the two cases. This research uses doctrinal research methods. The approaches used in this research include statute, conceptual, historical, and comparative approaches related to the issues being studied. As a result of the study, it was found that the competence of the Constitutional Court in deciding cases No. 22-24/PUU-VI/2008 and No. 114/PUU-XX/2022 was in the context of exercising its authority to examine laws against the 1945 Constitution of the Republic of Indonesia, not as a determinant that regulates and determines which system is most appropriate to be used in the electoral system in Indonesia. The Constitutional Court showed its consistency in deciding the two cases. In its ratio decidendi, the Constitutional Court uses Article 22E paragraph (1) as the basis for its legal considerations so that elections are held with the widest possible participation of the people on the principles of democracy, direct, honest, and fair. This consistency is very important to maintain in order to preserve and sustain the reform mandate that has been crystallized in the 1945 Constitution.

Court Competence In Administration In Resolving The Land Disputes To The Land

The purpose of this study is to describe the competence of the State Administrative Court in handling land disputes. With the existence of a duplicate certificate of ownership originating from two legal aspects there is also a dualism in handling the case, and with the existence of the antinomy of this legal norm, this can further lead to a conflict of competence in adjudicating between the General Court or State Administrative Court in resolving land disputes. This research uses a normative method, in which the sources of legal materials are used by using literature studies, legislation, journals / articles, jurisprudence and books. Significantly this research shows that the competency of Administrative Court becomes a place that should be a reference for legal certainty seekers for the existence of a double certificate that can be tested for validity through the State Administrative Court for the Decree of a State Administration officia.

Law Enforcement Against Criminal Acts of Corruption in The Form of Abuse of Authority in Office Based on The Law on Eradication of Corruption Crimes

The concept of abuse of authority in the Government Administration law is seen by several legal experts as the same as the concept of abuse of authority because it is the absolute competence of the Administrative Court in the Corruption Eradication law. The research method used is Case Study Decision Number Case Study Decision Number 218 PK/PID.SUS/2019 and Decision Number 143 PK/PID.SUS/2019, where both decision cases involve criminal acts of corruption in the form of abuse of authority in office. Based on Law no. 31 of 1999 Jo Law no. 20 of 2021 concerning the Eradication of Corruption Crimes. The conclusion is that the application of sanctions against criminal acts of corruption in Decision Number 218 PK/Pid.Sus/2019 and Decision Number 143PK/Pid.Sus/2019, the panel of judges imposed imprisonment/imprisonment and fines, the imposition of fines as an implementation of the balance value can be applied as long as In certain circumstances, the perpetrator of a criminal act of corruption is not a recidivist, then as a balanced punishment, apart from imposing a fine, assets can also be confiscated, this is so that the imposition of the fine can be used as a lesson or legal perspective for the wider community, rather than just being sentenced to imprisonment/ prisons are indeed less effective, because in the implementation of confinement/imprisonment sentences there are still leniencies which do not actually have a deterrent effect on perpetrators of criminal acts.

The Arbitrazh Court as a Subject of a Procedural Legal Relationship

The author makes an attempt to analyze the status of an arbitrazh court that enters into a procedural legal relationship with the participants during consideration of a particular case. The study was conducted on the basis of both general theoretical approaches and approaches developed by the science of civil procedure law to the essence of legal relations and civil procedural legal relations. Taking into account the place and role of the arbitrazh court in the system of judicial authorities, the work identifies specific features of this subject of procedural legal relations. In the author’s opinion, the fact that judicial power is exercised by the arbitrazh court through a procedural legal relationship is of particular importance for the characterization of the arbitrazh court. The status of the arbitrazh court as a judicial authority, in turn, determines the form of its procedural activity. Through the performance of procedural actions, the arbitrazh tribunal exercises its powers. The question of the competence of the arbitrazh court is considered as its characteristic, which determines the ability to become a subject of a procedural legal relationship and, at the same time, to act as the basis for its entry into a procedural legal relationship. The author analyzed legal institutions, as a result of which, when considering a particular case, two arbitrazh courts acquire mutual procedural rights and obligations.

Adoption of Children in the Perspective of National Law and its Relation to Religious Courts

The constellation of child adoption from the perspective of national law in Indonesia has received serious attention, but there is still a weak point, namely the absence of legal unity regarding child adoption. The adoption of children is one of the authorities of the Religious Court. The competence of religious courts is affirmed in Article 49 of Law Number 3 of 2006 concerning Amendments to Law Number 7 of 1989 concerning Religious Courts. The procedures and requirements for submitting applications for child adoption have been regulated in detail and concretely in various child adoption regulations, including Government Regulation Number 54 of 2007 challenging the Implementation of Child Adoption. There should be legal unity, namely a law-level regulation governing the adoption of Indonesian children. The government should socialize the strengthening of the position and authority of religious courts in the adoption of children for Muslims. Socialization is needed so that the purpose of laws and regulations governing the norms of the adoption of children for Muslims is in accordance and in line with the objectives of applicable law. Muslims who wish to adopt children should be carried out in religious courts as absolute and representative authority for the practice of Islamic law.
 Keywords: adoption of children, national law, religious cou