Court Of Cassation Research Articles

Problems of Suspension of Execution of Judicial Acts by a Court of Cassation in the Russian Civil Procedure

Problems of Suspension of Execution of Judicial Acts by a Court of Cassation in the Russian Civil Procedure

PENETAPAN PERMOHONAN WALI ADHAL PERSPEKTIF IDEE DES RECHT GUSTAV RADBRUCH DI INDONESIA

Guardians are among the pillars of marriage which must be fulfilled as regulated in Islamic law and legislation. However, there are guardians who are reluctant to marry that called Adhal. At the Sukoharjo Religious Court there was an applicant who raised this issue, but it was rejected, then the Petitioner took cassation and the Supreme Court of Cassation granted and canceled the decision of the Sukoharjo Religious Court. Focus of this research is comparing the two decisions and analyzing them using the theory of legal ideals (Idee Des Recht) which contains justice, certainty and expediency. This type of qualitative research uses a normative juridical approach with descriptive analysis results. Studies (Library Research) that use literature, books, journals, legislation and regulations, and copies of decisions as research objects. The results of this research show several differences in the legal considerations of the two decisions so the results of the two decisions are different. The Panel of Judges at the Sukoharjo Religious Court tried to lean towards expediency because it was oriented towards the continuity of the applicant's household but did not aim at certainty and justice in the idee des recht theory. The Panel of Cassation Judges stated that the court had made a mistake and was mistaken in applying the law based on Judex Factie and granted the petitioner's request so that no actions would occur that violated applicable norms. Thus, the Panel of Cassation Judges was closer to justice, expediency and legal certainty as in the idee des recht theory.

Suicide and attempted suicide of the victim: distinction of crimes under articles 120 and 166 of the Criminal Code of Ukraine

The article focuses on the issue of recognizing suicide as a social dangerous consequence of persistent failure to perform duties related to the care of a child or a person under guardianship or in the custody (Article 166 of the Criminal Code of Ukraine). Court practice of application of Article 166 of the Criminal Code of Ukraine for 2010-2023 (688 verdicts), as well as the legal opinions of the cassation court on the application of a number of legal provisions were studied. Taking into account the doctrine of criminal law and law enforcement practice, recognition not only the victim’s suicide, but also attempted suicide as a as a social dangerous consequence of this crime was proposed. As a result of the analysis of objective and subjective features of the crimes under Articles 120 «Driving a person into suicide» and 166 «Persistent failure to perform duties related to the care of a child or a person under guardianship or in the custody» of the Criminal Code of Ukraine, their differentiation was carried out. It is emphasized that systematic nature, as a mandatory feature of the act in both crimes, does not give grounds to conclude that the crime under Article 166 of the Criminal Code of Ukraine may be expressed in physical and psychological violence, cruel treatment. Options for qualifying the act depending on the perpetrator’s different psychological attitude to the consequences in the form of driving to suicide or attempted suicide were provided. In order to cover cases of intentional inaction of a person, which may consist, in particular, in failure to perform duties related to the care of a child or a person under guardianship or in the custody, it is proposed to replace the phrase “other actions” with “other act” in Part 1 of Article 120 of the Criminal Code of Ukraine.

Cannabis regulatory system in European Union countries, forensic concept of "doping dose" and medico-legal implications.

Cannabis is the most widely used illicit psychoactive substance in the world. In recent years, in many European Union countries, there has been a decriminalisation of the use and personal possession of cannabis for recreational purposes. There has been a spread of medical cannabis, as well as marketing of cannabis products at low concentrations of delta-9-tetrahydrocannabinol (Delta-9-THC), the major chemical to which cannabis owes its psychotropic effect. The percentage limit of this substance, only recently set by the European Court of Justice, must be distinguished from the "doping dose" of Delta-9-THC, namely, the dose which causes psychotropic effect in the consumer. Our study analyses and summarises the regulations in the countries of the European Union on the penalisation of recreational cannabis, the legalisation of medical cannabis and limits on percentage of THC imposed locally. Based on the analysis of a recent judgment of the Italian Supreme Court of Cassation, we discuss the importance of the role of the forensic toxicologist in the scientific definition of "doping dose". The distinction between the doping dose of THC and the percentage of THC contained in the marketed cannabis product is vital when establishing fair punishment in the event of a crime.

Application of electronic tools by participants in commercial proceedings

The trend towards digitizing procedures involved in legal commercial proceedings is regularly analyzed on the pages of profile publications. Meanwhile, the practical application of electronic tools available to participants in commercial proceedings and commercial courts does not often receive the attention it is due, which creates difficulties in implementing them in real court proceedings. The author understands electronic tools as the mechanisms enshrined in the Russian Commercial Procedure Code that allow participants in commercial proceedings and commercial courts to perform procedural actions in electronic form and/or remotely. Having analyzed, systematized, and summarized the judicial practices formed by the Russian Constitutional Court, the Russian Supreme Court, the Court for Intellectual Property Rights, and commercial courts of appeal and cassation, as well as relevant publications, the author draws up a practical guide to the use of electronic tools for (a) obtaining information on the proceedings via electronic tools of communication and the Internet, (b) electronic access to case files in limited access mode or via the Court File service, and (c) remote participation in court hearings via web-conferencing (online hearings). This practical guide is necessary due to the lack of proper, uniform, and complete statutory regulation of the use of electronic tools by courts and participants of commercial proceedings. The necessary procedural actions are often performed on the basis of guides posted on the websites of commercial courts and/or in the ‘My Arbitr’ system. In this regard, drawing up a practical guide seems to be highly relevant, useful, and appropriate.

Drafting an Appeal Petition for Jordanian Courts: Controls and Prohibitions

The study presents the stylistic of the judicial petition of appeal before the Jordanian courts, based on the terms and phrases used in the appeals submitted by some lawyers to the Court of Cassation and the Court of Appeal. In some of these appeals, there were inappropriate words and phrases that undermine the court prestige and respect, which violates the applicable controls and ethics in addressing the judicial body. Based on presented proven (real) examples, the study concluded by that these abusive words and phrases are wrong behaviors that lawyers should avoid, and improve their discourse style in order to preserve the prestige of the judiciary and respect its decisions. The study also concluded that the court has the right to liable the lawyer and hold him accountable for his use of such words and expressions, and sentence him if necessary, and that the lawyer must choose his words and phrases carefully without resorting to defamation or slandering in order to preserve the prestige of the law and those in charge of it.

The harm of death and the transferability of the right to compensation: A comparative study

This study aims to determine how the right of compensation for death is transferable to the heirs. It is agreed that harming a human body should warrant compensation. Even if it does not result in financial losses, it is considered an attack on the human body. Nevertheless, the prevailing trend in positive law still hesitates to consider the harm of death in itself, a harm that requires compensation. On the contrary, we find that Islamic jurisprudence considers the matter in its natural and logical setting from a long time ago. It is decided to guarantee and compensate for bodily damages, whether they resulted from deadly or non-deadly injury, regardless of the financial losses and consequences or moral damages that result from this damage. By referring to the Jordanian civil law, it becomes clear that compensation for bodily harm is carried out according to the rules of blood money, whose provisions are derived from Islamic jurisprudence and the provisions of Western laws, especially those related to the inclusion of compensation for the actual damage in its moral and material aspects, and its elements of actual loss and lost profit, which some jurists believe. Contemporary Muslims have what supports it in the rules of compensation in Islamic jurisprudence, especially the rule that there is no harm and no foul. In this study, we address how compensation for the harm of death is transferable to heirs in legal jurisprudence and the judiciary system and how the right to compensation for the harm of death is transferable to the heirs in Islamic jurisprudence. The comparative approach between legal jurisprudence and Islamic jurisprudence has been applied, based on strengthening jurisprudential positions with judicial positions closely related to the subject. The study recommended that the Jordanian Court of Cassation amend its jurisprudence and re-consider the death damage guarantee as material compensation for independent material damage. This should be transferred to the heirs through the inheritance and is claimed under the hereditary lawsuit, as it violated the provision of Article 274 of the Jordanian Civil Code, which authorized the death damage compensation. It also violated what was followed by Islamic civil jurisprudence and comparative judiciary.

Case Note on the “‘S’ (Sheraton/Soyic Hotel)” Decision of the Turkish Court of Cassation

Case Note on the “‘S’ (Sheraton/Soyic Hotel)” Decision of the Turkish Court of Cassation

The Role of the Supreme Court of the Russian Federation in Ensuring the Institutional Development of the Judicial System and Independence of the Judiciary

The article considers institutional changes in the judicial system through the creation of appellate and cassation courts. Their importance for ensuring the independence of the judiciary and increasing the effectiveness of judicial protection of the rights and freedoms of citizens is substantiated. The principle of extraterritorial development of the judicial system of the Russian Federation is revealed. The provisions on changing the composition, structure, judicial powers of these courts, their place in the unified judicial system of the Russian Federation are analyzed. The role of the Supreme Court of the Russian Federation in the “procedural revolution” that began in October 2017 through the development of a full-scale package of amendments to the procedural codes is shown. New rules for participation in civil, arbitration and administrative processes were outlined, new deadlines were fixed; new withdrawal rules; new prejudices. Particular attention is paid to the measures taken by the Supreme Court of the Russian Federation aimed at improving the quality and efficiency of justice of the peace, the equal distribution of the workload in the absence of a justice of the peace for good reason. The role of the Supreme Court of the Russian Federation in the development of conciliation procedures through the expansion of instruments for conciliation is also noted. The conclusion is formulated about the importance of judicial and judicial changes for the effective development of the judicial system in the modern period.

VERGİ KAÇAKÇILIĞI SUÇLARININ CEZALANDIRILMASINDA ETKİN PİŞMANLIK KURUMUNUN VERGİ CEZA HUKUKU İLKELERİ BAKIMINDAN DEĞERLENDİRİLMESİ

Effective repentance in the punishment of tax evasion crimes is regulated by Article 4 and 6 of The Law on Amendments of Treasury-Owned Immovable Property Valuation and the Value Added Tax Law and The Law on Amendments of Certain Other Laws and Decrees (Law No. 7394, dated 08.04.2022) with the provisions added to Article 359 and Provisional Article 34 of Tax Procedure Law (Law No. 213, dated 04.01.1961). Accordingly, if they meet the conditions determined in the Law, it will be possible to reduce the freedom-binding penalties to be imposed on tax evasion crimes. Effective repentance provisions in tax evasion offenses are applicable at the stages of investigation, prosecution and execution, but also allow the reduction of half or one third of the freedom-binding punishments to be imposed according to their conditions. It is stated in the doctrine that effective repentance regulation may cause some problems. These discussions are made the violation of the regulation conditions on some constitutional principles, the acts of arranging or using a misleading document related to its content are considered together within the scope of a successive crime, the time and procedure of the payment related to the taxation envisaged to be made in order to benefit from the effective repentance provisions during the investigation, prosecution and execution stages, opinion requirement, and how to apply effective repentance provisions at the stage of ordinary legal remedies. From this point of view, in this article, it is aimed to evaluate the effective repentance regulation in terms of tax criminal law principles, according to the principles of constitutional, criminal and tax law. Along with the legal regulation, the Court of Cassation also envisaged the implementation of effective repentance provisions in the punishment of tax evasion crimes during the prosecution stage, and these decisions were also included in the scope of the article.

INSOLVENCY COURT IN THE REGIME OF REHABILITATION PROCEEDINGS

As it is known, the court is the body that administers justice. Georgia has a system of general courts, including District, Appeal, and Cassation courts. The district court is a court of first instance covering the entire territory of Georgia. Considering the specificity of insolvency, its cases are considered only by the city courts of Tbilisi and Kutaisi. The powers assigned to the insolvency court include reviewing the application, opening the rehabilitation regime, appointing a manager/supervisor, etc. The activity of a judge often goes beyond the scope of civil law and Civil Procedure Code. Accordingly, the rights and obligations established by other branches of law apply to him/her. One is the law of insolvency, which mainly has independent general and procedural norms. The current law envisages the court’s involvement in such a regime as rehabilitation. In the work, the role of the court is considered within the framework of the regulation of the law of insolvency, the rehabilitation regime, which is regulated by the law of insolvency. And the research revealed that certain issues need to be regulated at the legislative level. Due to the fact that the role and rights, and duties of the court in the rehabilitation regime have not been elaborated in accordance with the new law by the researchers, the research topic is relevant and interesting. To properly discuss the topic provided by the article, the law “On Rehabilitation and Collective Satisfaction of Creditors’ Claims”, insolvency proceedings, and bankruptcy proceedings are compared. The normative acts in force in Georgia are used in the work, which regulates the rights and duties of the judge. In addition, various international acts are cited in the article for comparison and strengthening of the position.

Determination of liability in criminal proceedings: current state

The article is devoted to the investigation of the prosecutor's change of responsibility in criminal proceedings and the problems that arise when the prosecutor uses the specified institute. Attention was drawn to the increase in the number of law enforcement agencies with investigative functions, which increased the relevance of the highlighted issue. The judicial decision on the change of jurisdiction in criminal proceedings has been analyzed. The main positions of the Criminal Court of Cassation as part of the Supreme Court regarding the determination of the jurisdiction of the State Bureau of Investigation, the National Anti-Corruption Bureau of Ukraine, the Security Service of Ukraine and the National Police of Ukraine are highlighted. Attention is focused on the decision of the Joint Chamber of the Criminal Court of Cassation as part of the Supreme Court, which defines clear criteria for recognizing the pre-trial investigation as effective. In addition, the approaches proposed by scientists regarding the application of the norms of the criminal procedural law, which regulate the institution of criminal proceedings, are summarized, and the expediency of including in the list of decisions of the investigating judge, which can be challenged during the pre-trial investigation, the decision of the investigating judge on the refusal to satisfy the complaint against the prosecutor's decision on determination of liability. The range of problems that occur when the jurisdiction of a criminal proceeding is changed and the consequences of a change of jurisdiction by the prosecutor on the body of a pre-trial investigation, which, according to Article 216 of the Criminal Procedure Code of Ukraine, is not authorized to conduct a pre-trial investigation, for example, abuse by the prosecutor of his right to change jurisdiction with from one body of pre-trial investigation to another. The importance of proper substantiation by the prosecutor of the resolution on changing jurisdiction, as well as the introduction of judicial control over the legality of the prosecutor's determination of jurisdiction for a specific body of pre-trial investigation, is highlighted.

Troškovi obrade kredita u svetlu pravnih stavova Vrhovnog kasacionog suda Republike Srbije

The paper is devoted to the analysis of the current legal problem of the validity and the way of including the contractual provision on the collection of loan processing fees. The analysis is carried out through a review of legal and by-law regulations, especially judicial practice, which is crowned by the legal positions of the Supreme Court of Cassation whose arguments are the main subject of observation. There are two diametrically opposed positions on this issue: according to the first, contracting this provision is not allowed, while according to the second, it is. The author supports the understanding of the Supreme Court of Cassation, and takes a position on the permissibility of contracting the clause on the collection of loan processing fees, primarily for reasons of the principle of freedom of contract, special laws that indicate the possibility of contracting this provision, but also for reasons of the logic of the functioning of the market. The author also considers the impact of the legal positions of the Supreme Court of Cassation on legal certainty in the Republic of Serbia.

Судебная коллегия по уголовным делам Верховного Суда РФ пресекла незаконную попытку кассационной инстанции предрешить исход дела

Based on a general rule, a sentence may be based on evidence directly obtained by first and second instance courts, thus, a third instance court (court of cassation) that reverses judgments of inferior courts is not entitled to prejudge the outcome of a case. The article analyzes an illegal attempt of a court of cassation to direct the thread of thought of second instance judges, which has been suppressed by the Judicial Chamber on Criminal Cases of the Supreme Court of the Russian Federation.

Termination of Contracts and Force Majeure Under Qatari Law and Its Islamic Law Influences: Emergence of a Transnational Gulf Private Law

There is a growing interest in the private laws of Gulf states, and particularly Qatar, because of the applicability of such laws in transnational and local contracts that account for a significant volume of global trade, energy and construction. Islamic law has a negligible, if any, impact on the law relating to termination of contracts, including hardship and force majeure. Termination of contracts in Qatar is chiefly regulated by the Qatari Civil Code and other specialist legislation, as well as significantly the country’s Court of Cassation, which has produced a consistent flow of case law that is binding on lower courts. The Civil Code generally follows the rule that the parties may not unilaterally terminate contracts and that in any event sufficient notice is required. As regards unforeseen circumstances, the Civil Code distinguishes between general hardship and circumstances that render performance impossible. The former may be amenable to adaptation by the courts, whereas the latter effectively serves to terminate the parties’ respective obligations. Qatari law allows the parties to waive force majeure claims in their contracts.

Identification of Dispute Sources in the Construction Industry via Court Files

Contracting parties generally tend to resolve their disputes through the litigation process. The lengthy litigation process reduces the belief among the parties that the disputes are resolved peacefully, and this destabilizes the sustainable structure of the construction industry where disputes are very common. Determining the most common sources of disputes in construction lawsuits is very important in terms of taking necessary precautions beforehand. Additionally, increasing the competency levels of construction and judicial actors regarding construction processes is extremely important in terms of making the judicial process more efficient and faster. Therefore, this study aims to reveal the most frequent dispute sources in the construction industry, the competency levels of judicial actors including expert witnesses and the average duration of the construction-related litigation process for the superior courts. Hence, 346 construction-related lawsuits conducted between 2018 and 2021 were examined via content analysis to classify the common themes. Lawsuits were investigated via the official websites of Courts of Cassation and National Judicial Network Information System (UYAP). Next, the frequency analysis was conducted to detect the significance of each theme via SPSS software. It is highly believed that this study will enable the decision-makers to take necessary precautions before the dispute occurs as well as improve the dispute resolution process in the construction industry. Projects related to superstructure works constituted the majority of the disputes ending up with the judicial process. Additionally, the majority of the disputes detected from lawsuits resulted from “Debit and Credit” related issues. Moreover, the litigation process was also detected as a very lengthy process. Furthermore, it is detected that majority of the lawsuits were rejected by the Courts of Cassation due to inadequacies of the competency levels of the judicial actors.

The effectivity of the law protection on the sustainability of Yellow-Crested Cockatoos (cacatua sulphurea) in Indonesia

Yellow-crested cockatoos (Cacatua sulphurea) is one of 435 species protected by law and of 512 endemic species in Indonesia. This study aimed to assess whether law enforcement to protect the Yellow-crested cockatoos (Cacatua Sulphurea) from extinction was maximal. This research method applied normative juridical research, in which the court decision is the primary legal material. The later decision of the East Kalimantan High Court Number 6/PID/2018/PT.SMR is the primary legal data or materials that be analyzed in this study. The results of this study assess that law enforcement to protect the sustainability of Yellow-crested cockatoos in Indonesia is still not optimal. Furthermore, law enforcement related to corporate violations that are more dangerous to the extinction of these species is still a problem that needs to be studied further. This study will contribute to law enforcement realizing that the protection of endemic species in Indonesia relies heavily on their firmness and fair decisions according to law. Socialization related to the law on the Conservation of Biological Natural Resources and Its Ecosystems to the people needs to be improved. Most likely, people are still not aware of protected species because they are on the verge of extinction or endemic. The research limitation of the study is that the study analyzes high court decisions that do not yet have permanent legal force (Inkracht). There is still an opportunity for both the convict and the public prosecutor to appeal to the Supreme Court of Cassation if the court’s decision is deemed not right.

Contractual Arbitration Clauses and Non-Contractual Claims

Are non-contractual claims such as tort claims covered by standard arbitration clauses? Italian arbitration law contains a provision which seems to resolve this issue in favour of arbitration but which is interpreted restrictively by the Italian Court of Cassation. In other jurisdictions, the traditional approach was to find the answer by interpreting the wording of the clause. The modern view is to focus instead on the requirement of ‘factual equivalence’ between the non-contractual claim and the performance of the contract that contains the arbitration clause. Non-Contractual Claims, Principle of Wide Interpretation, In Favorem Validitatis, One-Stop Adjudication, Italian Court of Cassation, Italian Code of Civil Procedure, Wind Jet Judgment, General Arbitration Clauses, Fiona Trust, CDC Hydrogen Peroxide

Examination of evidence at the initiative of the court of appeal in criminal proceedings

Today, the combined chamber of the Criminal Court of Cassation as part of the Supreme Court is trying to solve the problem of the appellate court’s initiative in the examination of evidence, since the approaches of individual court chambers, namely the First and Third ones, differ. The purpose of this study was to identify those cases when the appellate authority is entitled to investigate the evidence proactively, without encroaching on the components of the principle prescribed in Article 22 of the Criminal Procedural Code of Ukraine. The formal-logical method helped generalize that the content and form of such a review must comply with the principles of criminal proceedings, including equality before the law and the court, as well as competition between the parties (it has been proven that their absence may indicate a violation of both constitutional and convention rights), freedom in presenting their evidence to the court and in proving their persuasiveness before the court. The results of the deductive method helped formulate the following theses: the legislator, understanding the equality of procedural rights not as their uniformity, normalizes it in the Criminal Procedural Code as equality in terms of the possibilities of exercising the granted rights; the legislator also determines such equality of rights from the functions that a certain participant in criminal proceedings is endowed with. The combination of prosecution, defence, and justice in one guise contradicts the adversarial nature of the judicial procedure. The study revealed that the passivity of the parties forces the court to choose its activity within the limits of the function of justice defined for it, and its initiative is aimed at examining the evidence to make a legal, well-founded, and fair decision. It is proved that these features of judicial proceedings are a priori inherent in the appeal review, along with its inherent features, including the determination of the amount of evidence to be examined, as well as compliance with the limits of judicial review, which are normalized by Article 404 of the Criminal Procedural Code of Ukraine. It was found that the initiative of the court of appeal to examine evidence and their further investigation in this court is permissible in situations where such evidence became known after the adoption of the appealed court decision. Compliance with this rule will protect the court from possible violations of the requirements of Article 22 of the Criminal Procedural Code of Ukraine, and scientific developments in this area are designed, among other things, to pave the way for the unity of judicial practice through doctrinal recommendations.

Prediction of court decision from Arabic documents using deep learning

AbstractThe increasing amount of electronic legal documents represents a great opportunity for the development of intelligent computational systems for legal texts processing and classification. Most of these systems use classical machine learning and large datasets in English. This paper proposes an approach to automatically predict legal case outcome from written description of the events in Arabic using deep learning. An in‐house corpus from the decisions of the Moroccan Court of Cassation is built and used to train a deep learning model that predicts judgement. As the created corpus is of limited size, a new data augmentation method is proposed to boost the prediction performance. Two settings for text representation are tested, namely FastText and GloVe embeddings, and multiple deep learning models architectures are tested. The proposed approach succeeds in predicting judicial decisions of the Moroccan Court of Cassation with an accuracy of 80.51% on six classes. Even with a small dataset, the proposed data augmentation method was helpful in improving the overall models' performance. Despite the advancement in the area of legal judgement prediction over the years, this work is the first attempt to predict legal outcome using the documents of the Moroccan Cassation court. The corpus created in the context of this work will be made publicly available to the community.