Judicial Government Research Articles

Historical and legal preconditions for the introduction of the constitutional and legal institution of the High Council of Justice in Ukraine

The scientific article considers and analyzes the evolutionary path of development of the Ukrainian judicial system from the beginning of the declaration of independence until today in terms of the functioning of judicial government.
 It is established that the Constitution of Ukraine of 1996 declared the establishment of the High Council of Justice, the functional purpose of which included, among other things, the authority to apply for the appointment and dismissal of judges. Subsequently, the Law of Ukraine “On the High Council of Justice” of 1998 provided for the procedure for the formation and organization of the work of the High Council of Justice, especially the exercise of its competence.
 Certainly, the functioning of the High Council of Justice at the time of its establishment was considered a positive step towards strengthening judicial independence. At the same time, there were undoubtedly certain points, for example, in determining the place of this institution in the system of public authorities. Another problem was that the body under study was not defined at the legislative level as, in fact, a public authority.
 It is established that it is necessary to distinguish between the concepts of “administration of justice” and “administration of justice”. The latter legal category we have mentioned is a much broader phenomenon, because, in our opinion, not every legal proceeding is, in fact, justice. This position can be traced in the works of most modern researchers who deal with the issue of the exercise of judicial power by its functional purpose and state powers.
 It has been established that adaptability and innovation are the tools that should be useful for the activities of the High Council of Justice, as they will allow to respond quickly to changes in any sphere of state and public life and work efficiently and effectively. The development of distance communication skills in this regard is a priority. Innovation, education, institutional communication, mobility and human resource management should contribute to improving the work of the High Council of Justice and establishing a constitutional guarantor of the independence of the judiciary.

The Myth of the Lone Judge: Comparing International Judicial Bureaucracies

In “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,” Joost Pauwelyn and Krzysztof Pelc describe, in rich detail, the pervasive involvement of the World Trade Organization (WTO) Secretariat in the resolution of trade disputes.1 The authors conclude, rather emphatically, that the Secretariat “exerts more influence over dispute settlement proceedings than the staff of any comparable . . . tribunal.”2 In my view, this conclusion is somewhat misleading, as it portrays the WTO as “exceptional” or “sui generis”3 among international courts. In fact, the invisible army of legal bureaucrats (clerks, registry and secretariat lawyers, arbitral assistants, etc.) plays a “critically important”4 part across the whole field of international adjudication. What is missing is a comparative analysis of the power those bureaucrats wield in different judicial regimes. In this Essay, I outline a basic framework for the comparison, focusing on two main factors: first, the organizational and contractual arrangements that govern the relationship of international judges and bureaucrats; second, the relative distribution of expertise and capital between the two.

Upholding parental responsibility by family mediation: revisiting the role of the law for children in divorce in Hong Kong

PurposeThis paper aims to analyse the different requirements of Practice Direction 15.10 (which governs the process of family mediation in Hong Kong) and Practice Direction 31 (which governs the process of general mediation in Hong Kong), and to highlight the need to incorporate the spirit of family mediation into legislation to better protect children’s interest in a family dispute.Design/Methodology/approachThe paper reviews and compares the content on Practice Direction 15.10 and Practice Direction 31 issued by Chief Justice of the Hong Kong Court of Final Appeal, and adopts interpretative and analytical approaches to evaluate their impact.FindingsIn an effort to promote parental responsibility-based negotiation in divorce proceeding, a missed opportunity in enacting the Children Proceedings (Parental Responsibility) Bill in 2015 might be a blessing in disguise as it offers another chance for policy makers to consider how to direct parties to negotiate and communicate, to seek and benefit from professional guidance on a continuous basis, and to seek alternative channels to resolve disputes other than the court room. The policy and the law advocating a switch from a “rights-based” to “responsibility-based” approach in handling children’s matters should be revisited by incorporating the spirit of family mediation into legislation.Originality/valueAnalyses are conducted through direct contextual review and documentary research. This paper conducts literal analysis of court guidance and unveils policy implications for the general public. It would be of interest to judicial officers, scholars and government officials concerning children’s rights and parental responsibility in divorce proceedings.

Justice in the Covid-19 era Through the Prism of Judicial Power

The work is devoted to identifying the main problems in the field of the principle of legal proceedings in the context of the Covid-19 pandemic. The research applies the formal-legal, historical and legal, comparative and modeling methodology. The order and issues to be considered are as follows: in the first section, we will consider the challenges and threats to justice that emerged during the Covid-19 pandemic. In the second section, we will see the judicial experience during the pandemic in the context of the basic principles of the judiciary. In the third section, we examine the application of organizational and procedural principles of the judiciary during the pandemic crisis. In the final fourth section, we will assess the role of international judicial institutions and government bodies in optimizing the administration of justice in the context of the Covid-19 pandemic. As a result of the work, emphasizing the vulnerability of the judicial system and justice standards, the authors support the expansion of exchange of experience and cooperation not only at the state level but also at the level of professional communities of judges, in particular with the members and judges of the European Commission for the Effectiveness of Justice, the Advisory Council of European Judges, and the European human rights courts.

Konfiskacija karlovačke tekstilne industrije (1945. – 1946.)

Autor na temelju arhivskoga gradiva i literature opisuje i objašnjava gospodarske procese na području Karlovca i njegove uže okolice uvjetovane političkim odlukama neposredno nakon Drugoga svjetskog rata 1945. i 1946. godine.

Judicial regimes for employment rights disputes: comparing Germany, Great Britain and Japan

AbstractThis article compares the judicial regimes for resolving individual employment rights disputes in Germany, Great Britain and Japan. First, we consider the form of institutional change; second, we examine the lay judge's role; and third, we assess the effectiveness of the three judicial regimes. We find that Japan made the least institutional change, layering a new procedure on top of an existing one. Paradoxically, however, its lay judges have a more extensive role than their counterparts in Germany and Britain, which established new institutions. As to effectiveness, there are several criteria. British labour courts are currently the least informal and speedy, but the cheapest. In both Britain and Germany, legal norms are publicised as adjudicatory hearings are open to the public and judgments are available for public scrutiny, unlike in Japan.

NINA/LILA debtors under the Portuguese Insolvency Act: A hidden problem in plain sight?

AbstractNo income, no assets (NINA) and low income, low assets (LILA) debtors are a non‐negligible part of the increasingly ‘financialized’ market economy. Falling outside the financial market or accessing it through low quality financial products, NINA/LILA debtors appear to be under prioritized by both legal and judicial regimes and public policies. Focusing on the legal and judicial dimension, and taking as an illustration the Portuguese context, we discuss how preinsolvency and insolvency solutions still remain ill‐adjusted for such cases. In spite the existence of some legal provisions aiming at fostering access to law and courts regardless individuals' financial conditions, they do not perform very well with insolvent debtors lacking a regular income. Addicionally, there are non‐legal barriers that prevent those with less economic means to fight properly for their social and economic rights.

The asylum and extradition or the criminal pursuit and persecution. Important concepts that create difficulties in the judicial practice

In this article I will briefly analyze a very important and actual theme related to reciprocal influences of two similar judicial regimes, such as the asylum and the extradition, which frequently have problems or difficulties in application in judicial practice. From a more general point of view, difficulties may arise in the English language from a vocabulary point of view, which frequently also generates problems in interpretation. For instance, such may be the case for the terms prosecution and persecution, which formally are translated respectively as criminal charge and persecution. I would also like to emphasize on the theoretical and practical importance, domestically and internationally, on matters related to asylum and extradition. The integrating and globalizing processes, the liberalization and the opening of frontiers, the effective war against international criminality, the consolidation of the state of law, the guaranteeing of individual fundamental rights and liberties, the protection of people in necessity from persecution because of race, religion, nationality, membership in a certain social group or because of political convictions, as essential values of the community of nations, are some of the main reasons that encourage the debate for a more effective application of these institutes.

Value chain analysis of shrimp of Dacope upazila in Bangladesh

Shrimp farming of Bangladesh is one of the most important contributors for its economic development and rural employment generation. The study examined the value chain actors, functions, governance and value chain mapping; estimated value addition in terms of cost and margin in Chalna, Tildanga and Bajua villages of Dacope upazila under Khulna District. Twenty five farmers and 55 traders were interviewed for collecting primary data. Descriptive analysis was performed for reaching the objectives.The study found that farmer, faria, bepari, aratdar, depot owner, commission agent/supplier, processing plant and retailer were value chain actors for shrimp. It was observed that value chain governance was dominated by external parties (legislative governance) and national bodies dominate judicial government. It was identified that processing plants add highest value at Tk. 228 per kg. On the basis of share of profit and cost it was revealed that processing plant was the dominant actor in the chain. Highest value addition, marketing cost and net value addition was Tk. 22800 per quintal, Tk. 13988 per quintal and Tk. 8901 per quintal incurred by processing plant respectively. Percentage of total cost and percentage of total profit was highest for processing plant at 62.85% and 43.71% respectively. The policy implication is that it is necessary to establish storage facility and government monitoring of shrimp markets for the improvement of the present situation.
 Progressive Agriculture 30 (1): 65-74, 2019

Judicial Self Government in the Netherlands: Demarcating Autonomy

AbstractBased on which values and to what extent does a specific legal system endorse a model of self-government of the judiciary? How is such self-government shaped? Which lessons can be drawn from practical experiences relating to major organizational reforms? This article addresses these questions with the aim of analyzing the influence of reforms of judicial self-government in the Netherlands on the realization of the core values of independence, accountability, legitimacy, transparency of, and public confidence in the judiciary. Furthermore, this article assesses the influence of reforms of judicial self-government on the separation of powers and democracy as organizing principles for the Dutch legal system. The main focus of the article is on the interaction between rule-of-law values and New Public Management (NPM) values for judicial organization, taking into account the meaning and weight of these values over time in the evolving Dutch legal system. Furthermore, the analysis addresses both the legal framework for judicial government and tensions that have occurred between key actors, in particular judges and the Council for the Judiciary, in their experiences with this legal framework in practice. A red thread which runs through this analysis concerns the demarcation of spheres of autonomy for the different actors in the judicial system. The analysis of organizational reforms clarifies that a dynamic interaction has developed between judges, the bodies for judicial self-government in the Dutch system and the Minister of Justice and Security, revolving around claims of autonomy. The evolved framework of rule-of-law and NPM values for the judicial organization provides a theoretical “lens” for understanding this interaction and its outcomes.

Binding effect of provisional measures as an inherent judicial power: An example of cross-fertilization

Inherent powers of international courts and tribunals are a necessary consequence of exercising properly judicial functions in the context of a legal system lacking a central legislative power setting the limits of these functions through firm legal rules. Power to grant binding provisional measures is the most extreme example of international judiciary reaching for inherent powers, since this process disregards ordinary textual interpretations of judicial statutes. At the same time, this process is an example of cross-fertilization between various judicial regimes in international law, where tribunals for the law of the sea influence general international courts, while they in turn influence investment and human rights tribunals. Limits to these inherent powers must provide that state consent, as the central tenet of international legal order remains unaffected. The fact that this practice has not met with resistance from states indicates that international courts and tribunals have assumed this inherent power with propriety and logic.

Constitutional Reasoning in Private Law: The Role of the CJEU in Adjudicating Unfair Terms in Consumer Contracts

This article explores the—often controversial—role of the CJEU as an interpreter of Directive 93/13/EEC on unfair terms. A fundamental problem that any modern system of private law must address is how to combine two types of provisions: those that are intended to facilitate private ordering through voluntary transactions, and those setting out certain mandatory terms that are intended to protect vulnerable consumers against risks inherent to free market transactions. This article argues that, in response to the failure of various legislative initiatives, the Court's jurisprudence has acquired both a regulatory dimension and a constitutional dimension. The emergent judicial regime illustrates an important departure from a rule-based conception of private law, based on private autonomy as a stand-alone value, towards an innovative conception that extends proportionality analysis into substantive private law but avoids one-sided outcomes

Constitutional Reasoning in Private Law: The Role of the CJEU in Adjudicating Unfair Terms in Consumer Contracts

This article explores the - often controversial - role of the CJEU as an interpreter of Directive 93/13/EEC on unfair terms. A fundamental problem that any modern system of private law must address is how to combine two types of provisions: those that are intended to facilitate private ordering through voluntary transactions, and those setting out certain mandatory terms that are intended to protect vulnerable consumers against risks inherent to free market transactions. This article argues that, in response to the failure of various legislative initiatives, the Court's jurisprudence has acquired both a regulatory dimension and a constitutional dimension. The emergent judicial regime illustrates an important departure from a rule‐based conception of private law, based on private autonomy as a stand‐alone value, towards an innovative conception that extends proportionality analysis into substantive private law but avoids one‐sided outcomes.

THE JUDICIAL REGIME OF ANNULMENT OF MARRIAGE AND THE EFFECTS OF MARRIAGE ANNULMENT

We have chosen to put together this study with the intent of examining the judicial regime of marriage annulment and the effects of marriage annulment. Such action involves researching the rules which govern absolute annulment or relative annulment of marriage, who can invoke annulment, the term in which it can be invoked, if annulment can or can’t be reclaimed. The second part of the study discusses the effects of the annulment of marriage.

The Inter-American Human Rights System and U.S.-Latin America Relations

The Inter-American Human Rights System and U.S.-Latin America Relations

Regional Human Rights Governance: The Case of the Inter-American Human Rights System

The Inter-American Human Rights System (IAHRS) has over time developed into a normatively intrusive regime with a far-reaching mandate to regulate domestic political norms and practices of regional states in the Americas. The system has emerged, from its roots as a quasi-judicial entity with an ill-defined mandate to promote respect for human rights in the region, as a legal regime formally empowering citizens to bring suit to challenge the domestic activities of their own government. An independent court and commission are invested with the mandate to respond to individual claims by judging whether the application of domestic rules or legislation violates international commitments. The access of individuals to the human rights regime has strengthened over time as the system has evolved into a judicial regime with a procedural focus on the force of legal argumentation and the generation of regional human rights jurisprudence. This memo will seek to address some of the central concerns of the workshop by outlining how the case of the Inter-American Human Rights System sheds light on the dynamics of regional human rights governance.

Copyright Law Enforcement in Online Environment

Among a variety of enforcement strategies, copyright law enforcement function as strongest safeguard to control and eliminate copyright infringement. As traditional strategy, copyright law enforcement is fundamentally distinguished from the first type by DRM system. Because copyright law enforcement is primarily operated by judicial system and government agencies, such type of model is more powerful and overwhelming than the technology-based DRM system with respect to online copyright enforcement. In general, the copyright law enforcement system remedy the losses of copyright owners and punish infringement as an ex post enforcement strategy. Although both judicial system and the enforcement by government agencies require certain procedures and additional costs to copyright owners, the legal protection provided by copyright law enforcement is usually ultimate and determinative. Due to the reliability, copyright owners have long relied on copyright law enforcement as the major strategy to enforce their copyright throughout history. The copyright law enforcement is not a single definition. Rather, the law enforcement generally consists of civil remedies and criminal enforcement. Basically, civil remedies are granted by courts under judicial system pursuant to copyright statutes. Criminal enforcement, on the other hand, is the result of cooperation by government agencies and courts.

El problema de los robos: de los temores de la élite a las prácticas de subsistencia de los sectores subalternos. Mendoza (Río de la Plata), 1820-1831

This essay focuses on a specific study of thefts that occurred in the jurisdiction of Mendoza at the time of the formation of the provincial state. To do this, we will analyze judicial cases and government documents preserved in the Historical Archive of Mendoza. The aim of the study is to determine if the fears of the local elite, in the face of what they interpreted as growing post-revolutionary social conflict, were borne out by the information given in the sources; furthermore, we also aim to detect on which offenses against property they prioritized surveillance and punishment.

Dare You Sue the Tax Collector! An Empirical Study of Administrative Lawsuits Against Tax Agencies in China

Though taxes are as certain as death, each year tens of thousands in the United States go to court to challenge their assessed tax liabilities, and many will succeed. By contrast, very few Chinese taxpayers litigate against tax agencies, and most of those who sue eventually settle, despite low formal litigation costs. Non-litigious culture does not fully explain the reluctance to sue, as courts in Taiwan (about 2% of the Chinese population) adjudicated five times more lawsuits against tax agencies. I contend that judicial bias favoring government officials, weak enforcement of judgments against the state, and agency retaliation explain the aversion to litigate disputes with tax agencies in China. But once the reluctance to sue is explained, the cases that go to trial, though small in number, constitute a more intriguing empirical puzzle. Why would anyone in China insist on judicial resolution of disputes with powerful tax agencies, given all the adverse conditions that have deterred hundreds of thousands from doing so? I provide a number of theoretical explanations, which are evaluated and substantiated with an empirical analysis of all tax-related administrative lawsuits that went to trial from 2009 to 2011 in Henan Province, one of the most populous provinces in China. In contrast to existing literatures on Chinese administrative litigation, this study is the first to include substantive analysis of an unbiased sample of cases. The findings contribute to the literatures on Chinese tax administration, administrative litigation in China, and extant trial selection theories.

Criminal Liability of Corporations: A Comparative Approach to Corporate Criminal Liability in Common Law and Civil Law Countries

Criminal liability of corporations became one of the most debated topics especially following the 1990s, when both the US and Europe faced an alarming number of environmental, antitrust, fraud, worker death, bribery, obstruction of justice, and financial crimes involving corporations. The reaction to this criminal phenomenon was the creation of judicial regimes that could deter and punish corporate wrongdoing. Corporate misconduct has been addressed by civil, administrative and criminal laws. Presently, most countries agree that corporations can be sanctioned under civil and administrative laws. However, the criminal liability of corporations has been more controversial. While several jurisdictions have accepted and applied the concept of CCL under various models, other law systems have not been able or willing to incorporate it. Some critics give arguments against its efficiency and consistency with the principles of criminal law; there are others, at the same time, who vigorously defend CCL. Different countries have adopted various models of CCL or refused to adopt any due to their particular historical, social, economic and political developments. Based on these developments, each country finds it appropriate to respond to the criminal behavior of companies in different ways. In this paper I distinguish the models of CCL developed in countries of common law systems, like US and UK, and the models in civil law system countries. These models have their advantages and disadvantages, however, some elements of both models should be considered for the purpose of creating a better model. This paper is organized in four chapters. The first chapter describes the concepts of corporate legal personality. It gives the theoretical basis for corporate criminal liability, as well as some types of corporate crimes. The second chapter develops the importance of CCL. Although CCL is a concept belonging more to criminal law than corporate law, in this research is emphasised its importance towards corporate law. Whereas, the third chapter provides a brief overview of the different traditions in the common law and civil law jurisdictions in relation to the principle and the form of CCL. In the last chapter it is discussed a comparative approach regarding to CCL in common law and civil law countries. The conclusion provides a summative evaluation for CCL emphasising the fact that powerful legal entities, such as corporations or companies must accept and abide by rules like natural persons.