Judicial Sphere Research Articles

Modelos sociopolíticos en disputa. El caso del bloqueo a Huawei

No puede establecerse con claridad de qué manera el desarrollo digital moldeará las relaciones económicas y sociales del mundo interconectado, sobre todo en vistas a la inminente revolución aparejada a la aparición de redes 5G e internet de las cosas. Lo que está claro, es que los valores y pilares bajo los que se fundan se encuentran en abierta discusión y disputa. En esta breve comunicación, tomando como punto de partida el actual enfrentamiento comercial y tecnológico entre Estados Unidos y Huawei, se tratará de identificar y caracterizar dos modelos sociopolíticos enfrentados que resuelven a su manera el eje de relaciones entre individuos, gobiernos y compañías. En particular, se ahondará en el reconocimiento de dos escenarios diferentes. Por un lado, Occidente, donde pueden encontrarse a grandes compañías como Google y Facebook siendo interpeladas por actores del ámbito civil, judicial y político, y donde pesan importantes acusaciones de competencia desleal y manipulación de datos privados; y, por otro lado, China, donde las autoridades «protegen» a sus 800 millones de internautas para la explotación de unas pocas compañías en lo que puede entenderse como un peligroso modelo de integración vertical.

The concept of public control over judges’ activity and the system of subjects of its implementation

The author of the article substantiates the modern tendency of the formation, development and spread of an increasing number of levers and protectors from state’s abuse of power, change of the state’s essence and its purpose in the society. The public and various elements of its control and supervisory activity play a significant role in this. Theoretical aspects of the issue of public control in general or in the context of a certain sphere of state power functioning, in particular are studied. Considering this, the author offers own definition of the category of public control over judges (courts) in Ukraine. The system and the legal status of various public control subjects are briefly characterized, their classification is performed and the place of control over judges among other subjects is determined.
 It has been established that public control over judges (courts) in Ukraine is the system of statutory measures and procedures implemented by civil society subjects in relation to judges, candidates for judges positions, members of judicial administration and self-government agencies (candidates for these positions), courts as institutions in order to to ensure the conditions for the selection of professional and honest judges, the effective, impartial administration of justice and the objective informing the public about the current state of affairs in the judicial sphere.
 Summarizing the analysis of the system of public control subjects, their administrative powers and capabilities, the author has noted that their absolute majority, except the Public Integrity Council, is not endowed with real (or at least close to such) levers of influence on the processes in the judicial sector. Accordingly, the purpose of their functioning is reduced to a greater extent to the accumulation, analysis and dissemination of socially important information about courts and judges, to the formation of public resonance on the facts of their not fair practice, other cases of law or professional ethics’ violation.

O Papel do Perito Judicial e o Assistente no Devido Processo Legal

Esse artigo buscou relatar em uma pesquisa qualitativa a importância do Perito Judicial. Foi realizada a pesquisa com referêncial teórico metodológico bibliográfico atravez de Evangelista (2000), Filho & Filho (2010), Da Costa (2015) e outros importantes autores. Os resultados encontrados é que teoricamente não existe opinião formada sobre a questão da importância, porém é clara e evidente nas fontes pesquisadas que é necessário uma técnica oficial ou ad hoc nas áreas da perícia judiciária para auxiliar o poder da justiça e ser mais exato nos casos concretos em busca da verdade. Conclui-se que esta pesquisa é de cunho importantíssimo para que os peritos e auxiliares mantenham-se cada vez mais a formação em evidência, e busquem se aprimorarem para estar auxiliando o poder judiciário e assim prestando mais eficiência e eficácia, que é incontestado a importância e sua técnica em auxilio na esfera criminal e judiciária do país.

The notion of the victim in mobilizing legal action : the case of women in the colombian war

Introduction A detailed study of the forms of action of feminist activism in Colombia since the second half of the twentieth century reveals a central fact: starting from the 2000s, when faced with a surge of violence following the transformations of the armed conflict, part of the movement changed some of its strategies of opposition. The strategies turned towards an investment more and more intense in the legal and judicial sphere to be more efficient. This strategy bore fruit, not only in ...

Breves reflexiones sobre la división de poderes y la administración de justicia en España durante el siglo XIX

The alleged division of powers that is reflected in the Spanish constitutional documents of the nineteenth-century contrasts with reality. The prevalence of the executive in the legislative procedures of the initiative and the delegation and the continuous use of the infralegal provisions, permitted, in the judicial sphere, assuming the writing of the texts by which the civil and criminal prosecution was regulated, as well as controlling the judges and magistrates. These were considered public employees, that are subject to the Ministry of Grace and Justice, so that, in reality, the courts did not constitute in the organic any power as to be subject to the executive, whatever their ideology was, while functionally they executed the power to apply the laws in civil and criminal trials with remarkable independence.Enviado el (Submission Date): 07/01/2019Aceptado el (Acceptance Date): 12/03/2019

Социальное значение деятельности уголовных департаментов главных судов Правобережной Украины (1797–1831 гг.)

The social importance of the criminal departments of the Supreme courts of Kiev, Volhynian and Podolian governorates is analyzed in the article. It was determined that the criminal proceedings were carried out by a special procedure: first, the cases came from the courts of the first instance (county courts and magistrates) for revision to the supreme court with a proposal for the judgement and a reference to the relevant laws (Lithuanian statute and Polish constitutions). After consideration in the main court, which did not take place immediately, the judgement was sent to the governor for approval. The function of executing the judgement was vested in the provincial board, which informed the Supreme Court after the fact that the original case of the decree and judgement was sent to the court of first instance.The governors advocated that absolutely all matters fall under their jurisdiction. In formal legal proceedings, the return of cases without approval was explained by the lack of the necessary documents. The authorities demanded that the departments immediately resolve the cases of the detainees, but part of them waited for a judgement for years. An indicator of the effectiveness of criminal departments was the number of cases considered. Institutions were overworked, including being forced to correspond with other institutions. An analysis of the statistics of the criminal and temporary departments of the Volyn Supreme Court for the period from 1797 to 1826 indicates a low crime rate. The system of punishment was particularly cruel and included, in addition to the usual prison terms, corporal punishment, and exile to Siberia, financial penalties (fastening), conscription or something. The activities of the criminal departments allowed minimizing political tension: the Polish nobility, fully controlling land relations and county courts, resigned themselves to Russian domination, which allowed the Russian Empire to establish itself in the region. It is obvious that the activity of the judiciary allowed to keep the crime rate under control and not to allow a sharp increase in the number of crimes. The coming to power of Nicholas I in the conditions of centralization policy meant the termination of cooperation with the elites. The supreme power demanded obedience from all classes, so after the Polish uprising of 1830–1831 the course was taken to eliminate all regional differences, especially in the judicial sphere. On the other hand, prior to the transformation of the Supreme Courts in 1831, the previous work of the criminal departments of the Kyiv and Volyn Supreme Courts was highly appreciated.

Práticas grupais no âmbito jurídico brasileiro focadas na violência: uma revisão integrativa

Este estudo tem como objetivo apresentar uma revisão integrativa sobre práticas grupais realizadas em âmbito jurídico, acerca da temática violência, no contexto brasileiro. A revisão foi realizada por meio das bases de dados LILACS, PePSIC, PsycINFO e SciELO, no primeiro semestre de 2017, considerando o período de 2000 a 2016. A partir dos critérios de inclusão e exclusão foram recuperados 16 artigos. Os estudos se caracterizaram como empíricos; foram realizados com vítimas, autores e profissionais que atuam com a temática violência; focaram práticas grupais eficazes em relação a violência no contexto jurídico. Houve indícios de falta de capacitação de profissionais dessa área, em parte da produção analisada. Constatou-se que as configurações grupais podem ser formas eficazes, e adequadas de atendimento no âmbito do judiciário, sendo um recurso disponível para os profissionais, e como forma de tratamento para vítimas e agressores.

Containing Sotomayor: Rhetorics of personal restraint, judicial prudence, and diabetes management

ABSTRACTThis essay explores how rhetorics of diabetes management informed Sonia Sotomayor’s judicial persona during her ascent to the Supreme Court. Sotomayor’s confirmation hearings were clouded famously by institutional racism and sexism. She was accused repeatedly by congressional Republicans of being intemperate, emotional, and illogical in a judicial sphere that prizes circumspection, deliberateness, and collegiality. As part of a larger strategy to counter such claims, the Obama administration forwarded her lifetime of managing type-one diabetes as proof of personal control, and by extension judicial prudence. This strategic invocation of intersectionality, using a disability to rhetorically “contain” race and gender, helped to successfully resituate universal notions of wisdom and secure Sotomayor a seat on the nation’s highest court.

The Formation of Legal Imaginations About the Document in Russian Empire of the XVIII – First Half of XIX Century

Issues of incorporation of the term "document" into Russian legal acts of the XVIII – first half of the XIX century are disclosed. On the basis of the analysis of the primary sources it was made an attempt to reconstruct the process of forming legal concepts about the document in the Russian legal tradition. The beginnings of the first conceptions of the document as an independent form of judicial evidence in Russia at the beginning of the XVIII century are considered. The procedure of forming the legal properties of the document as a type of judicial evidence through the institutionalization of written communications in the judicial sphere is shown.It was revealed that the process of the formation of legal imaginations about the document took place during the institutionalization of written communications, which included protection from service falsehoods, normative regulation of the processes of creating a document and its movement throughout the life cycle, as well as the regulation of the document form. The importance of forming views on the examination of the authenticity of the document and its priority as judicial evidence is emphasized, the role of the translation of written communications in the legal sphere under the control of the state in this process is substantiated.It was established that by the middle of the nineteenth century the document in the civil law was considered to be a type of written record, the trust to which was ensured at the institutional level, what allowed to use the document in civil litigation as an indisputable evidence, which had the advantage above religious oath and testimony. Precisely in the legal context the document begins to be used in the sphere of clerical work.

Da violência opressora à negociação institucional: a judicialização dos conflitos agrários no cenário alagoano

This article aims to understand the process of judicialization of agrarian conflicts that has intensified in the state of Alagoas, Brazilian recent decades. The analysis focuses on the creation of a branch specialized in the treatment of territorial disputes, seeking to decode how agrarian litigation has been received and treated in the judicial sphere. Based on the examination of 241 lawsuits filed between 2008 and 2014 and using in-depth interviews with legal subjects (judges, prosecutors, lawyers and public defenders) and representatives of social movements and INCRA, it is maintained that judicialization is the product and result of a process of historical tension that at the same time imposes rationalization on land conflicts and reconfigures the features of violence. Based on the analysis of the empirical material, we find that in the Alagoas agrarian branch the evocation of legality, celerity and myopic affirmation of property rights have been triggered in the justification of judicial decisions that continue to perpetuate social injustices. Therefore, far from promoting a fair equalization of agrarian conflicts, the judicialization of disputes has contributed to perpetuate a scenario of violence, which nevertheless presents itself as a contemporary institutional approach.CASTRO, Ana Carolina; LAGESE, Anabelle Santos; ASSIS, Wendell Ficher. Da violência opressora à negociação institucional: a judicialização dos conflitos agrários no cenário alagoano. Estudos Sociedade e Agricultura, jun. 2018, v. 26, n. 2, p. 309-330.

Civil Strife, Power and Authority in the Judicial Sphere: A Case Study from Roman Palestine

Summary:This paper examines Josephus' account of a judicial incident that occurred in around 62 C.E., which involved both Judaean elites and the Roman imperial powers. While traditional readings of the passage have focussed on mining it for information about the nature of the Judaean council that is often referred to as the „sanhedrin“, it is here argued that this report sheds light on several other key issues related to the operation of law within the region: indigenous perspectives on loci of authority within a judicial context, the importance of judicial power within broader societal conflicts, and the role of Judaean-Roman interactions in maintaining and redefining jurisdictional boundaries. It thus constitutes a valuable testimony for understanding the operation of law in this particular part of the Roman Empire.

The progressive autonomy of the child and its participation in the judicial process

This research studies the issue of the progressive autonomy of children and adolescents and the problems of their participation in the various processes in which they are involved, particularly related to their right of access to justice and the exercise of their right to be heard in the judicial sphere.

O DIREITO NA CONTRAMÃO DA LITERATURA: A CRIAÇÃO NO PARADIGMA CONTEMPORÂNEO

O artigo inscreve-se no campo dos estudos de direito e literatura e tem como objetivo problematizar a liberdade criativa no âmbito jurisdicional. Para tanto, apresenta uma síntese diacrônica dos conceitos de criação formulados pela teoria literária e destaca sua articulação com as noções de intertextualidade e de horizonte de sentido. A seguir, recorre ao conto Pierre Menard, autor do «Quixote», de J. L. Borges, para explicitar a concepção – decorrente da assunção do paradigma hermenêutico – de que a invenção literária resulta do processo de leitura, interpretação e reescrita. Por fim, indica os contextos que propiciaram o surgimento das concepções que postulam a liberdade de criação do direito na esfera jurisdicional, abordando, especialmente, as posições de M. Cappelletti acerca da atuação criativa dos juízes. Tal percurso possibilita constatar, o anacronismo das teorias do direito que vinculam o conceito de criação à ideia de liberdade criativa – cujos efeitos são o ativismo e o decisionismo judicial – face à atual compreensão que a teoria da literatura tem do papel central da interpretação no processo criativo.

Sędzia jako osoba sprawująca „wymiar sprawiedliwości”

JUDGE AS JUSTICEThe subject of discussion is the question of the activities of judges in the judicial sphere, which is called justice. It has been established that the use of the concept of justice involves the need to determine what form of justice is taken into account by the courts in the adjudication process. In the course of the study it was also the issue of the independence and impartiality of judges. The study also covered the problem of easy and difficult interpretation cases. Attention was also paid to the justification of the judgments, in particular the sincerity of the judge giving the written justification of the judgment. Lastly, attention was paid to the current dangers facing the judges regarding the verdict. The paper close the conclusions arising from the study.

Los marcadores conversacionales en la interpretación en servicios públicos: una cuestión de omisiones y adiciones

According to Wang (2013, p. 130), conversational markers are linguistic elements performing a double role: informational and interactive. In their second role, they are used to regulate interaction between participants in a conversation, in transitioning to another topic, when stating speaker’s attitude, and so on. Therefore, they perform a significant role in any oral exchange. However, what does it happen to conversational markers when that oral exchange is made possible by an interpreter? In research on public service interpreting, the study of conversational markers has been rather anecdotal and, unless some exceptions within the judicial sphere, our knowledge on the treatment this discourse markers receive in interpreting is scarce. This paper presents the study of a conversation interpreted by a mediator-interpreter in public services in the language pair Chinese-Catalan, which was recorded and subsequently transcribed verbatim in order to make analysis easier. The results reflect la omission of all conversational markers the primary interlocutors (a high school teacher and a Chinese student’s mother) had been using, as well as the addition, by the mediator-interpreter, of conversational markers that were absent in the original message. In the conclusions, I reflect upon the potential implications of these results, and on the prospective value of this study.

Ipse Episcopus iudex: ritorno alla tradizione canonica?

SOMMARIO. 1. Premessa - 2. L’episcopalis audientia. Riconoscimento, evoluzione e problematiche - 3. L’eta medievale e la nascita degli officiali. I tribunali “guardiani del vincolo” - 4. Dal Concilio di Trento alla prima codificazione - 5. Dal Codex del 1983 all’Istruzione Dignitas connubii - 6. Conclusioni. Ipse Episcopus iudex: return to the canonical tradition? ABSTRACT: The new procedural norms for marriage nullity approved by Pope Francis invested the diocesan Bishop with a peculiar role, adding to his previous duties in the judicial sphere that to judge personally in the new processus brevior. Bishops have always been considered the “natural judges” in their dioceses, but this task was previously exercised by appointing the tribunal staff and supervising the judicial activity. Some Authors have affirmed - referring, for example, to the ancient episcopalis audientia - that with this reform a longtime practice of the Church was restored. However, a more accurate study of the evolution of the episcopal potestas iudicandi through the centuries reveals a progressive and conscious devolution of its daily exercise to specialized clerics and colleges, exclusively dedicated to their functions. This trend, transposed in the 1917 Code of Canon Law and confirmed in the present Code promulgated after the Second Vatican Council, has been lastly strengthened in the Instruction Dignitas connubii approved by John Paul II.

ON THE QUESTION OF THE INFLUENCE OF THE SOCIAL-ECONOMIC FACTOR ON THE CIVIL LAW OF THE CHINESE PEOPLE’S REPUBLIC

The article analyses the question of the united economic structure in China and it’s influence on the Law and it’s codification. The codification of the Chinese Civil Law doesn’t have total character. Some factors (social-economic, geographical, climate, ethnical, religious and some others) influence on integral and disintergral processes. Social-economic factor is the main factor in the keeping of the territorial unity of state and in the unification of its law especially in the sphere of economy in the modern world. Socialeconomical factor consists of two parts: the economic part and the social part. The economic part is the united economic structure. The social part is the social group (may be class or part) of inhabitants who wishes and maintain (by their labour efforts) the united economic structure’s existence and development. There are two main conditions for united economic structure’s existence. The first condition is the regime of the economic union. The second condition is the territorial unity. The economic union consists of three unions from the view point of the regime of the economic union: the financial union (single monetary system and union financial law), the customer’s union (single customer border, non-limitation moving of finance, goods and labour) and the migration union (non-limitation moving of natural persons, nonlimitation for their temporal staying and constant living). The united economic structure consists of two part from the view point of its territorial unity: base (or heart) and periphery. Base includes territory where the main industrial and agricultural potential is situated and where most part of active labour inhabitants live. Periphery produces additional part the national product. The minority part of active labour inhabitants live in periphery. In case of disintegration of the base territory of the united economic structure it comes to its collapse and its inhabitant dye. In case of secession of the periphery the united economic structure come to crisis but can capability to overcome this crisis and to continue its existence. The united economic structure consists of economic regions. Every region specialises in producing of one or some (limited in the list of numbers) kinds of production. Regions exchange with production of their specialisation. This exchange has mutual and constant character. Mutual and constant character of above mentioned exchange demands unification in spheres of technology, medicine service, education, science, human rights, security. And in that part of judicial sphere, which connected to above mentioned spheres in the Civil Law in first. The process of creation of the united economic structure of the Chinese People’s Republic is not completed till nowadays. Noncompleted character of the creation of the Chinese united economic structure is the main reason noncompleted character of the unification of the Chinese Civil Law. The Chinese Civil Law doesn’t have Code. It has the Common Ground of the Chinese Civil Law. It is a quasi-code normative act. Separate normative acts play main rile in the Chinese Civil Law. Chinese normative acts are stables’ and difficult to changes’ as usual. Chinese traditions play very important role in the sphere of the Civil Law of the Chinese People’s Republic.

La mediación policial en conflictos familiares y de pareja: Análisis de los acuerdos

Mediation is an alternative, increasingly implemented, for the resolution of conflicts outside the judicial sphere and one of its applications in conflicts reported to the police. The present work is part of an experience of police mediation that has been carried out during the years 2012-2014. Two data collection techniques have been applied: on the one hand, in the analysis of the files, with the whole set of variables that may be applicable; And by performing questionnaires to the parties involved. The two conditions adopted as a criterion in the selection of cases that refer to family conflicts of partners and which were registered in a resolution agreement. With these data, the analysis affects, beyond the characteristics, in the satisfaction of the process and the permanence of the conflict. As conclusions, the incidence of sociodemographic variables, especially the level of studies and occupational and the high degree of satisfaction and recommendation of the service, stands out. However, there is a high rate of repetition of conflicts, especially in cases of family conflicts.

La verdad en debate. La primacía del paradigma jurídico en el examen de las violaciones a los derechos humanos en la Argentina

Estas páginas examinan tres representaciones, elaboradas en contextos políticos disímiles y marcos epistemológicos diferentes sobre el valor de la justicia penal ante las violaciones a los derechos humanos perpetradas en la Argentina. La primera, la estrategia jurídica del gobierno de Alfonsín, busco erstablecer una condena ejemplar basada en una perspectiva utilitarista del castigo. y tuvo por premisas la verdad alumbrada por el informe Nunca Más, elaborado por la Comisión Nacional sobre la Desaparición de Personas (CONADEP). La segunda, se situa en las reflexiones críticas que, sobre esta estrategia, formuló uno de sus arquitectos, Jaime Malamud Goti, en el contexto de impunidad tras los indultos sancionados por el presidente Carlos Menem que, aparentemente, clausuraban la escena judicial. La tercera, promovida por académicos y familiares de desaparecidos en el último lustro, deriva del impacto que, también en Argentina, provocó la experiencia de la Comisión de Verdad y Reconcialiación de Sudáfrica. En función de esta presentación mostraré que, pese a que el papel de los juicios en la tramitación de las violaciones a los derechos humanos está siendo resignificado, aún por una porción de quienes los impulsaron, estas resignificaciones se enmarcan en el paradigma jurídico y refuerzan su primacía como modo de procesar el pasado de violencia en la Argentina.

Framing Asymmetry: Devolution and the United Kingdom’s Four Children’s Commissioners

The United Kingdom’s four children’s commissioners, established under separate legislation for Wales, Northern Ireland, Scotland and England, are amongst the best known of the public institutions created since the beginning of devolved government in 1999. Like many such offices around the world, they are the result of domestic political and social processes as well as the influence of the requirements of international human rights treaties, specifically the United Nations Convention on the Rights of the Child. Different processes in the four countries have produced differing remits and emphases, but each commissioner is in part a response to concerns about the vulnerability of children in difficult circumstances. The commissioners’ activities include vigilance over the access of such children to support, in particular support for getting their voices heard. The commissioners have also developed prominence on the international stage as independent children’s rights institutions and all have been active in promoting children’s participation in social accountability for human rights implementation. This article explains the commissioners’ different roles and remits and examines ways in which they contribute to accountability for human rights implementation in the political, administrative, legislative, judicial and social spheres. It concludes by suggesting that their status as both “children’s champion” and independent children’s rights institutions is likely to assure their long-term endurance in the still-evolving process of constitutional change in theuk.