Evidence In Civil Proceedings Research Articles

Once Again on the Concept of Evidence in Civil Procedure Law

The article discusses the process of proof and its stages, classification of evidence. The role of forensic evidence in resolving disputes in the process is becoming increasingly important. Problems of collecting and interpreting evidence associated with the evidentiary process are of particular importance in legal disputes, since they are means of proof that determine the outcome of the judicial consideration of the dispute. The purpose of the evidence is to establish factual circumstances relevant to the resolution of the civil case. When studying scientific work, the goal is to analyze the place of judicial evidence in civil proceedings and the problems in it using the example of domestic and foreign scientific literature. The methodological basis of the study is relativity, consistency, and formal legal methods. The results obtained in the scientific work are recommended for use in judicial practice, in the science of civil procedural law, in the science of the law of evidence.

Современные тенденции и проблемы развития института доказывания в гражданском судопроизводстве

The article examines the existing problems of the functioning of the institute of evidence in civil proceedings of the Russian Federation. It is difficult to overestimate the importance of the institution of evidence in civil proceedings. Proving in judicial practice is an indirect human cognition, the authors argue that the subject of this cognition does not just observe or empirically collect information, he analyzes existing facts and makes new conclusions. The authors investigated the theoretical foundations of the functioning of this institute, analyzed statistical data in this area. In the course of the analysis of scientific literature, the authors have formed a wide range of evidentiary tools in Russian civil proceedings. Due to the consideration of real judicial practices, the main gaps in the legal regulation of the mechanism for the use of evidence in civil cases were identified. In conclusion, the options for changing the articles of the CPC of the Russian Federation are proposed, which will improve the mechanism of judicial proceedings.

Потенциал использования судебной неустойки (астрента) в обеспечении исполнения обязанности по представлению истребуемых доказательств в цивилистическом процессе

The presentation of evidence in civil proceedings is a subjective right of the persons involved in the case, however, the court is entitled (in civil proceedings — should be entitled) to demand evidence under threat of penalties. The subjects of punitive liability are both the persons involved in the case and other subjects who own the required evidence. However, a court fine as a measure of responsibility for failure to provide evidence is not always effective, which gives rise to a rare application of this measure in judicial practice. Requests for evidence are often not executed by the persons to whom they are addressed. The author proposes to establish a judicial penalty (astrent) as a measure of responsibility for failure to provide evidence, which is currently established for the case of non-execution of only the final judicial act. It is proved that the penalty, which is increasingly increasing as the procedural obligation is not fulfilled, will serve as a more effective incentive for the presentation of evidence. The proposed measure performs three functions: when it is established in case of possible non–presentation of the requested evidence, it has a preventive function; when it is applied for the fact of non–presentation of evidence, it has a liability measure function and a security function.

Електронні докази в цивільному судочинстві: правова характеристика та особливості

Abstract. This article is dedicated to the study of issues related to the use of electronic evidence in civil litigation. Within the framework of the article, an analysis of recent scientific publications on the use of electronic evidence is conducted. The work was performed on the basis of general scientific and special methods of scientific knowledge. The general concept and principles of using electronic evidence in civil proceedings, their characteristics, and peculiarities are outlined. A list of advantages regarding the use of electronic evidence is provided. Special attention is given to the description of the procedure for submitting electronic evidence to the court. The article examines changes and trends in the use of electronic evidence in the modern context of integration and digitization of society, and analyzes progress in the field of information technology. Problems at the legislative level concerning the submission of both original electronic evidence and their copies to the court are analyzed. Issues related to the procedure and peculiarities of examining electronic evidence, as well as their evaluation by the court, are identified. Specifically, among the problems identified in the article are the insufficient regulatory framework for certifying electronic copies of electronic evidence, the imperfect definition of the concepts of «original electronic evidence» and «copy of electronic evidence» in legislation, the instability of electronic information, the absence of physical form and perception only through special technical devices, the possibility of theft, damage, and tampering, and the determination of their authenticity and admissibility. Based on the conducted research, the conclusion is drawn that the question of the use of electronic evidence requires urgent resolution, and the legislator should promptly eliminate existing contradictions by making appropriate amendments to the current procedural legislation of our country. Moreover, it is advisable to more precisely define the concept of «electronic evidence» and the specifics of their submission at the legislative level.

Geography has little impact: a comparative study on the role of judges in Singapore and Indonesia in the taking of evidence in civil proceedings

ABSTRACT Indonesia and Singapore are neighbouring countries with vibrant economic relations. Despite the geographical proximity, the legal systems in both countries are strikingly different. The author suggests that the most influencing factor of a country’s legal system is often its former colonial master. Singapore (a former British colony) applies the common law legal system while Indonesia (a former Dutch colony) applies the civil law legal system. Chan and van Rhee suggest that the differences between the two legal systems are often exaggerated, but differences remain. This paper sets out these differences with a focus on the judges’ role in taking evidence in civil proceedings, given the inevitable fact that disputes would arise among the business players of the two countries and that taking of evidence is an essential part that may be decisive to the outcome of a dispute. Doctrinal and comparative methods will be used, namely through analysing various procedural laws as found in the statute, case laws, as well as commentaries. This paper contributes to the scant collection of comparative literature on the two legal systems and assists business players in understanding better the procedures of taking evidence applied by the relevant dispute resolution forum that they can choose to resolve their commercial disputes.

Интеграция криминалистических категорий в практику участия прокурора в гражданском судопроизводстве

Introduction. The paper examines the participation of the prosecutor in civil proceedings, the legal framework, and the history of the formation of the institution in question, highlighting some forensic aspects that form an integral part of prosecutorial activity in the analyzed area. Purpose. The substantiation of the claim that the collection and consolidation for the purpose of subsequent research and evaluation of evidence in civil proceedings without the use of criminalistics categories does not allow recognizing the prosecutor’s activities as sufficiently effective. Methods. The methodological framework for the study was the methods of scientific cognition, among which the main ones were the methods of analysis, consistency, synthesis, and comparative law. Results. The conclusion is formulated that prosecutors in civil proceedings must necessarily have and possess forensic categories when working with evidence, as well as apply forensic recommendations when conducting certain procedural actions. Conclusions. Based on the provisions discussed in the paper, the conclusion is substantiated by the need for further development of tactical forensic recommendations in the field of prosecutor participation in civil proceedings. It is concluded that, based on the integration of the most effective tactical recommendations, the developments in this direction will allow for the optimization of both the participation of the prosecutor in civil proceedings and civil litigation in general.

Independent Expertise Organized by the Ombudsman for the Rights of Consumers of Financial Services: Procedural Problems and Place in the System of Evidence in Civil Proceedings

The present research deals with the procedural problems connected with the independent expertise, organized by the Financial services consumer rights ombudsman, the conclusion about the significant differences of this expertise from the judicial expertise, the conclusion that the expertise organized by the Financial services consumer rights ombudsman in the judicial process refers to the written evidence, and at the same time leads to an increased standard of justification for the appointment of judicial expertise. Within the framework of the article the author proposed measures aimed at detailed regulation of the process of independent expertise, organized by the ombudsman for the rights of consumers of financial services, which would increase the level of objectivity and protection of the rights of consumers of financial services.

Evidential activity of the court in civil and administrative proceedings: a comparative legal analysis

The scientific article presents a comparative legal analysis of the evidentiary activity of the court in civil and administrative proceedings. Theoretical approaches in the sciences of civil procedural law and the law of administrative proceedings regarding the definition of the concept of «evidence» are outlined.The circle of subjects of evidence in civil proceedings has been established, which include: participants in the case, procedural representatives and the court, whose functions in evidentiary activity are determined by the needs of justice. As a result of the analysis of the norms of the civil procedural law of Ukraine, a conclusion was made about the passive, as a rule, role of the court in the process of proof, in particular, in the part of collecting evidence in legal proceedings, which is determined by the operation of the principle of adversarial justice in civil proceedings. At the same time, it was emphasized that, in contrast to legal proceedings, when considering cases of a separate proceeding, the court is obliged to take measures to comprehensively, completely and objectively clarify the circumstances of the case, which indicates its «active position in clarifying the circumstances of the case.»Subjects of evidentiary activity in administrative proceedings include the court and persons interested in resolving the case (parties; third parties; representatives of the parties and third parties). Attention is focused on the active role of the court in the process of proof in administrative proceedings (in contrast to civil proceedings), which is determined by the principle of official investigation of all circumstances in the case, which is reflected in the provisions of the Code of Administrative Proceedings of Ukraine: «The court takes measures defined by law, necessary to find out all the circumstances in the case, including the discovery and demand of evidence on its own initiative» and «The court can collect evidence on its own initiative».

Sikap Hakim dalam Menerapkan Pasal 1321 KUHPerdata: Studi Putusan Pengadilan di Indonesia

In legal science, coercion, error and fraud as regulated in Article 1321 of the Civil Code are classic defects of will. Parties who express an agreement without freedom, based on Article 1449 of the Civil Code, are given legal protection in the form of the right to request cancellation of the agreement. The problem is that the defect in the will lies in the process of forming the agreement so that it is impossible to obtain written evidence. In fact, letters are the main evidence in civil proceedings and hence the duty of the judge is to identify and to realize the formal truth. The aim of this research is to determine the judge's attitude in deciding whether there is a defect of will in forming an agreement. This normative legal research uses statutory, conceptual, case, and analytical approaches. Secondary data was obtained through literature study, the analysis was qualitative and concluded inductively. The research results show that there remain judges whose legal considerations are only based on proof that the parties have signed an agreement. There are also judges who look at the relevance of the surrounding legal facts thoroughly and comprehensively so that they can find any defects of will in the construction of the formation of the agreement.

Provision of evidence in civil proceedings: a historical and legal outline of the development of legislation

In the work, research was carried out in the historical and legal context of the institution of securing evidence in civil proceedings, the origins of the modern system of normative provisions on securing evidence, the main stages of the development of civil procedural legislation in this part were revealed. Modern legislative approaches to the legal regulation of procedures for providing evidence in civil proceedings and problematic aspects of law enforcement are analyzed. In the 2017 edition, the Civil Code of Ukraine established certain novelties in the legal regulation of the procedures for securing a claim. Thus, the court, at the request of a party to the case or a person who may acquire the status of a plaintiff , must provide evidence if there is reason to assume that the means of proof may be lost or the collection or submission of relevant evidence will later become impossible or difficult. Ways of securing evidence by the court are questioning of witnesses, appointment of expertise, demand and (or) review of evidence, including according to their location, prohibition to take certain actions regarding the evidence and obligation to take certain actions regarding the evidence. In necessary cases, the court may apply other methods of securing evidence determined by the court. In the new civil procedural legislation, the list of methods of providing evidencehas been expanded, the terms for filing a lawsuit in the case of submitting anapplication for providing evidence before the opening of proceedings in the case have been extended, the procedure for providing evidence when transferring a case to an arbitration court and international commercial arbitration, detailed requirements for form and content have been clarified applications for the provision of evidence. Key words: provision of evidence, proof, means of proof, civil proceedings, court procedures

Smart Contract – Problems with Taking Evidence in Polish Civil Proceedings in the Light of European Regulations

In recent years, we have observed an amazing development of new technologies; many contracts come into effect without paper documents being signed. New possibilities have appeared, for example, the smart contract (also known as the digital contract or blockchain). In some cases, there is a dispute between the participants in the smart contract, e.g., as to the manner of its implementation. A court case might be necessary to resolve the dispute. As in any dispute, evidence proceedings will have to be conducted. The smart contract should appear as a proof. However, due to its unusual nature and complicated status under substantive law, as well as the fact that it is produced by new technological solutions, it is essential to determine its admissibility as evidence. The procedural law regulates in detail only traditional evidence. The smart contract has not been regulated in procedural regulations, therefore, its status needs to be established in the context of the existing documentary evidence. This article aims to contribute to the discussion on the status of smart contracts in civil court proceedings. Primarily, it should be determined whether the smart contract can be considered a document within the meaning of procedural law. In the Polish legal system, the document is defined as an information carrier whose content can be read. Accordingly, the smart contract meets the definition criteria. However, in the absence of provisions governing the manner of taking documentary evidence, it may be difficult to actually take such evidence and establish its value. The article also draws attention to Regulation (EU) No 910/2014 of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93 / EC. Its art. 46 refers to the legal effectiveness of electronic documents and prohibits discrimination against evidence from such documents, which should undoubtedly contribute to the acceptance of a smart contract as evidence in civil proceedings.

The genesis of electronic messages as evidence in civil proceedings

The article is devoted to the question of the genesis of electronic messages as evidence in civil proceedings, in particular, the historical and legal analysis of the introduction of electronic correspondence in the territory of Ukraine and their legal evolution from a means of communication to an independent means of proof.
 The article analyzes the concept of "electronic communication", a component of which is electronic correspondence. The main approaches to the interpretation of the concept of "electronic message" in regulatory and legal acts and scientific and technical literature were studied, the analysis of the distinction between the generalized concept of "electronic message" and "text, multimedia and voice messages", which is enshrined in the Civil Procedure Code of Ukraine, was carried out. The main features of an electronic message are highlighted: it contains information (certain information and/or data), has an electronic (digital) form, is transmitted using technical means of communication.
 The stages of the scientific and technical evolution of the Internet and mobile communications as the main channels of electronic communication are studied, and the statistics of their distribution in the world and Ukraine are given. The historical prerequisites for the emergence and development of the main environments for the functioning of electronic messages are characterized: sms-messages, e-mail, social networks and messengers.
 The evolution of scientific and legal positions regarding the use of electronic correspondence as an evidential basis in civil proceedings from the moment of its emergence as a method of communication to its legal consolidation as a means of proof was studied, in particular, the stages of adaptation of the legal framework and judicial practice in Ukraine were characterized.
 The current state and problems of using electronic messages as evidence in civil proceedings are characterized. The problematic aspect of using an electronic signature for recording electronic messages and the corresponding distinction between "electronic message" and "electronic document" were studied. The modern trends of changing the judicial paradigm to the principle of self-identification of the author, the presumption of integrity (authenticity) of the evidence, the use of the "letter in response" doctrine and the increase in the legal and evidentiary value of metadata, which will improve the dynamics of using electronic messages as evidence in civil proceedings, have been recorded.

Dowód prima facie w postępowaniu cywilnym w sprawie roszczeń z tytułu błędów medycznych

The taking of evidence in civil proceedings due to a medical error is characterized by certain differences, which were mainly shaped in judicial practice and result from the difficulties of evidence conditioned by the specificity of biological processes taking place in the human body. According to the author, the most characteristic and the most important institution mitigating the rigorism of evidence in the so-called “medical cases” is prima facie evidence that is not directly regulated in the Code of Civil Procedure. The article introduces the essence of prima facie proof and indicates its leading concept in the doctrine and jurisprudence, referring to its genesis and use in various legal systems. In conclusion, the author suggests the necessity to standardize the approach to the application of the discussed institution in the form of a resolution of the Supreme Court, at the same time negating the necessity to introduce its legislative basis.

Evaluation of electronic evidence in civil proceedings (on the examples of certain categories of court cases)

In this article, the author reveals the concept, essence and peculiarity of evaluating electronic evidence to establish the circumstances of a civil case. There are reasons that affect the difficulty of developing established approaches to the evaluation of electronic evidence in civil proceedings: the relative novelty of the use of electronic evidence by courts; a radical change in the legal framework, as a result of which electronic evidence began to be considered as an independent means of proof; multiplicity of forms of expression of electronic evidence in practice. Attention is also drawn to the fact that the list of electronic evidence and its carriers proposed by the law is not exclusive, which is also an additional factor that complicates the development of a uniform judicial practice of evaluating electronic evidence in civil proceedings.
 The characterization of the criteria for evaluating electronic evidence in civil proceedings is carried out: the criterion of propriety, the criterion of admissibility, the criterion of sufficiency, the criterion of reliability, the criterion of the interconnection of evidence. It is noted that the most questions arise when assessing the admissibility and reliability of electronic evidence, although sometimes the criterion of appropriateness of electronic evidence can be the subject of disputes in a civil case. Yes, verification of the appropriateness of electronic evidence should be carried out by identifying in their content information about the circumstances of the case that must be established. But such verification can be complicated if the evidentiary information is not clearly recorded.
 The use of various criteria for evaluating electronic evidence is clearly demonstrated with examples from the judicial practice of domestic courts and international judicial institutions. More attention is paid to and analysis of the legal positions of the Supreme Court regarding the evaluation of electronic evidence in civil proceedings. The importance of using electronic evidence to confirm the commission of legal actions regarding intangible goods, especially those that function in the electronic environment (in particular, cryptocurrency) is highlighted.

Discretion to exclude improperly obtained evidence in civil proceedings in England and Wales

AbstractExclusion of improperly obtained evidence is often discussed in relation to criminal proceedings, but not civil proceedings, where concerns about wrongdoing of state actors and deprivation of liberty are not usually present. It is sometimes assumed that judges in civil proceedings in England and Wales had no discretion to exclude relevant and reliable evidence based on how it was obtained (as a distinct concern from exclusion of evidence of little probative value) prior to the enactment of the Civil Procedure Rules 1998. This paper seeks to demonstrate that this is wrong, arguing that a number of sources of power to exclude evidence on the basis of how that evidence was obtained have arisen in England and Wales, and that these are not attributable to the Civil Procedure Rules. There is a discretion which enables exclusion of evidence where this is ‘in the interests of justice’, and a discretion to do with the administration of justice. It may be possible to break these down further, to concerns over abuse of the court's own procedures, and executive illegality. Analysing the decisions leading to these developments reveals the importance of human rights concerns to recognition of exclusionary discretion in civil proceedings, and for informing the content of the discretion/s.

THE LEGAL NATURE OF ELECTRONIC EVIDENCE IN CIVIL PROCEEDINGS IN THE CONTEXT OF DIGITALIZATION

The relevance of the article is due to the fact that in civil proceedings, electronic evidence can be considered the most popular method of obtaining evidence to date. However, in law enforcement practice, there are many gaps in the formation of the institution of electronic evidence. The advantage of electronic evidence in civil proceedings is quite obvious, which makes it necessary to take a different look at this type of evidence. The courts, certainly, strive to respect the interests of the parties when considering cases on the basis of competition and equality of the parties, but the study of judicial practice shows that the presence of electronic evidence stands out against the other evidence and acquires a special status that requires research, detailed legislative development and procedural regulation. At the same time, it should be noted that there has been insufficient research on this topic in the scientific and procedural doctrine; in this connection, the opinions of researchers and their assessment are given. The purpose of the article is to determine the legal nature of electronic evidence in civil proceedings, especially in the context of the development of digitalization and electronic information technologies. The procedural legal, formal legal, logical, dialectical and other methods of scientific research make up the methodological basis. Based on the results of the study, it was concluded that the legal nature of electronic evidence is closely related to modern technical means, and the position on the need to consolidate procedural measures, the use of information and communication tools to provide civil proceedings in the modern judicial system is also justified.

WHO BENEFITS FROM CORRUPTION IN THE JUDICIARY?

This article stipulates that before making a decision that is an act of the judicial system protecting the violated rights, freedoms and interests, it is necessary to determine the actual circumstances of the civil case, as well as the qualification of these cases, ie to establish clear correspondence between the circumstances of the case. Before concluding on the existence of rights, freedoms and legitimate interests, the court must determine whether these legal norms are the existence of certain facts linking these rights, freedoms or legitimate interests, the evidence in civil proceedings, their admissibility, the need to prove them, The importance of the necessary reforms, the study of the legal nature of the assessment of evidence in the civil procedure legislation of the Republic of Uzbekistan, to identify existing problems and offer them legal solutions, following foreign experience, to solve this problem. issues of regulation and national legal regulation, the role and specific features of this area in the development of our national legislation, as well as the basics of legal regulation aimed at preventing potential risks in this area

The Concept of the Admissibility of Evidence in Lithuanian Civil Procedure and Arbitration

This article analyzes the concept of admissibility of evidence in Lithuanian civil proceedings and arbitration. The first part of the article reviews the past and current legislation, case law and doctrine, which reveal the concepts of the admissibility of evidence in both civil and arbitral proceedings.The second part of the article provides a critical assessment of these concepts. It is proposed to improve the concept of the admissibility of evidence in civil proceedings, and an alternative of this concept is presented. As far as arbitration law is concerned, it is acknowledged that the concept of the admissibility of evidence in arbitration causes legal uncertainty in the proceedings, which forces to consider possible corrections to this concept.

On the use of audio and video recordings as evidence in civil proceedings

On the use of audio and video recordings as evidence in civil proceedings

The The comparative analysis of the law of evidence in civil proceedings in France and Russia

The article deals with the problems of the legal nature and legislative consolidation of norms of evidentiary law in France and Russia. The author claims that it is more optimal to consolidate norms of proof and evidence in evidentiary law of Russia. At the same time, Russian theory of evidence needs radical reform. The legal approach to the concept of proof in legislation of Russia and France is differentiated. In French evidentiary law, the ranking of evidence is legally fixed, which cannot be recognized as dignity. However, legal norms regarding some means of proof are sufficiently developed. The means of proof, which are outdated as legislation and judicial practice, are still fixed. At the same time, the legal regulation of electronic evidence has been sufficiently developed, which can be recognized as an advantage of French evidentiary law. Russian evidentiary law does not provide for legal regulation of electronic evidence as an independent means of proof. The following areas of improvement of Russian evidentiary law are highlighted: improvement of the theory of proof, optimization and unification of the legal regulation of the rules of evidence, reception of effective means of regulation from the evidentiary law of foreign countries, and detailed legal regulation of individual means of proof.