Legal Errors Research Articles

On the Issue of Unification of Legislation on Forensic Examination in the Civil and Administrative Proceedings

The article deals with the comparative analysis of the procedure of forensic examination commissioning and carrying out in arbitration, civil and administrative legal proceedings. The author examines procedural codes regulating the expertise and identifies the differences in courts’ approaches to its commissioning and to judiciary powers, rights, and responsibilities of experts. Special attention is paid to court limitations regarding examination commissioning on its own initiative in the arbitral procedure as well as to its broader powers in civil and administrative proceedings.The article also analyzes the need to unify the legal regulation of forensic activities, which in the author’s opinion will lead to increased predictability and transparency of legal proceedings, improve the quality of expert opinions and reduce the risk of legal errors. The author emphasizes that, despite the differences in legislation, basic principles of carrying out forensic activities remain consistent, which makes the measures on procedural norms unification not only possible, but also the necessary ones to enhance effectiveness of legal proceedings.The paper proposes specific unification measures that will help eliminate existing legal uncertainties, improve the quality of justice, and create a more uniform judicial practice.

Направления преодоления юридических коллизий, возникающих при заключении трудового договора с мигрантам

As part of the expansion of labor migration flows, the likelihood of legal conflicts in labor relations increases, which become more complicated under the influence of a foreign element. At the same time, legal errors most often and probably arise when concluding an employment contract with migrants in domestic practice, which is due to the complexity of compliance with the necessary legislative requirements by the parties to such relations, due to the imperative fulfillment of additional conditions that are provided for in the provisions of the labor legislation of Russia. In order to prevent legal conflicts that arise when concluding an employment contract with migrants, the author provides directions for overcoming them by using special conflict-of-laws rules — “bindings”.

Forensic Hypoglycaemia & Neuroglycopenia — A Clinical Legal Social Endocrinology Challenge for 2024, Forensic Law in Hypoglycaemia 4

Forensic Hypoglycaemia & Neuroglycopenia — A Clinical Legal Social Endocrinology Challenge for 2024, Forensic Law in Hypoglycaemia 4

The Living Wonders case: A Backwards Step in Australian Climate Litigation on Coal Mines

Abstract As one of the world’s largest exporters of coal and gas, Australia’s domestic regulation of fossil fuels plays an important part in global greenhouse gas emission reduction efforts. This analysis examines the Australian Federal Court’s Living Wonders decision—the latest judicial review challenge to coal mines based on Australia’s federal environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).1 This legislation has significant flaws as a tool for regulating the climate impacts of fossil fuel projects, which the Living Wonders decision emphasises. The Federal Court found no legal error in the Environment Minister’s reasoning that large export-oriented coal mines will produce ‘no net increase’ in global emissions and/or have emissions which are too ‘small’ to warrant detailed assessment under the EPBC Act. The Living Wonders judgment delivers a blow to hopes for progressive, climate-friendly interpretation of Australia’s federal law in coal litigation and strengthens arguments for law reform.

What do consumers understand about predispute arbitration agreements? an empirical investigation.

The results of a survey of 1,071 adults in the United States reveal that most consumers do not pay attention to, let alone understand, arbitration clauses in their everyday lives. The vast majority of survey respondents (over 97%) report having opened an account with a company that requires disputes to be submitted to binding arbitration (e.g., Netflix, Hulu, Cash App, a phone or cable company), yet most are unaware that they have, in fact, agreed to mandatory arbitration (also known as "forced arbitration"). Indeed, over 99% of respondents who think they have never entered into an arbitration agreement likely have done so. Over 92% of respondents report that they have never based a decision to use a product or service on whether the terms and conditions contain an arbitration agreement. When prompted, they largely endorse the following reasons: they were unaware of the arbitration clause, they did not read the terms and conditions, and they thought they had no choice but to agree to mandatory arbitration. Moreover, many respondents presume that if a dispute arises, they will still be able to access the public courts, notwithstanding that they agreed to the terms and conditions. Consumers are largely unaware of opportunities to opt out of mandatory arbitration. They generally do not pay attention to or retain information about the steps required to opt out successfully (e.g., contacting the company within a specified time period). Generally, consumers are unaware that companies like Cash App and Venmo (mobile payment systems utilized by nearly 60% of respondents) allow customers to opt out of mandatory arbitration if they act within a limited time period. Among the minority of respondents (21%) who stated that they had been given an opportunity to opt out, vanishingly few could name any of the steps required to opt out successfully. When presented with a run-of-the-mill contract, of the type consumers routinely encounter, most respondents did not take notice of the arbitration clause. Less than 5% of respondents could recall that the contract they were shown had said anything at all about arbitration. Furthermore, most consumers misperceive the consequences of signing a predispute arbitration agreement. Most mistakenly believe that, after agreeing to terms and conditions mandating binding arbitration, they can still choose to settle their dispute in court, have a jury decide their case, join a class action, and appeal a decision made based on a legal error. For instance, less than 5% of respondents correctly reported that they could neither appeal an erroneous decision to another arbitrator (or set of arbitrators) nor start all over again in court. Less than 1% of respondents correctly understood the full significance of the arbitration agreement, as indicated by their responses to questions about whether they retained the rights to sue, have a jury decide their case, access the public courts, and appeal a decision based on a legal error. In summary, consumers are generally unaware of arbitration clauses, and they tend to hold mistaken beliefs about how arbitration agreements affect consumers' procedural rights.

The International Criminal Court’s Opportunity to Correct the Erroneous Interpretation of the Mens Rea for Genocide

ABSTRACT: The destruction of a group by a process of forced conversion or assimilation, wherein the identity of a protected group, be it national, ethnic, racial, or religious, is eradicated and replaced with another identity is not covered by the prevailing definition of the mens rea of the crime of genocide, which requires that a perpetrator intend the physical or biological destruction of a protected group. This article argues that genocide has been inaccurately applied by international courts, based on an incorrect interpretation of the Genocide Convention that has dominated international law for twenty years, and discusses what non-physical/biological destruction of a group looks like in practice. The article proposes that events in Ukraine give the International Criminal Court, which has yet to definitively interpret the crime of genocide, an opportunity to correct this legal error and thereby ensure that genocide offers better protection to groups from destruction.

Casation in Civil Procedure Law is Reviewed from a Legal Logic Perspective

Cassation is the final legal remedy submitted by a party who feels aggrieved by the decision of the court of first instance or appeal to be re-examined by the Supreme Court. This research aims to determine the effectiveness of the application of cassation in correcting legal errors that occur as a result of ignoring legal facts at the appeal level, as well as a comparison between cassation and judicial review in dealing with discrepancies between legal facts and the application of legal rules. This research uses normative juridical methods with a qualitative analysis approach to court decisions, legal literature and applicable laws and regulations. The research results show that cassation has an important role in ensuring the consistency of legal policy, but its effectiveness is greatly influenced by the quality of the cassation petition, the judge’s ability, and the caseload at the Supreme Court. On the other hand, judicial review (PK) offers a wider scope in measuring misjudgments of legal facts by considering new evidence or obvious judge errors.

General characteristics of a legal error : causes of appearance , concept and legal meaning

General characteristics of a legal error : causes of appearance , concept and legal meaning

Стенограмма семинара «Активизация применения конкурентного законодательства для преодоления отрицательных эффектов существенной рыночной власти в экосистемах цифровых платформ: альтернативные варианты, аргументы противоположных сторон»

The seminar is devoted to alternative legal ways in enhance competition policy enforcement towards large digital platforms and their ecosystems. Effects-based, or rule of reason competition enforcement that requires case-specific economic analysis shows limited effectiveness due to excessively lengthy decision-making process, which is not always compensated by the decrease of legal errors. The presentation of Professor Y. Katsoulacos (Emeritus Professor, Athens University of Economics and Business, Affiliated Chair Professor, Jiangxi University of Finance and Economics (JUFE), former Commissioner of the Hellenic Competition Commission, Chair of Scientific Committee and Coordinator of Competition and Regulation European Summer School and Conference CRESSE www.cresse.info), classifies the main approaches to reform in terms of changing the substantive standard of competition law, the legal standard, reallocation the burden of proof in competition cases, as well as in terms of the choice between ex ante regulation and ex post law enforcement.

Assessing pedestrian behaviour: evaluation of a survey of Portuguese residents

The aim of this study was to evaluate the pedestrian behaviour of a sample of Portuguese residents. For this, a questionnaire was published online and disseminated through e-mails and social media to Portuguese residents. It was answered by 502 people (318 women and 184 men) between 15 and 64 years of age. Principal component analysis differentiated four axes into factors: (1) ‘transgression’, which included violations of the rules of the road and legal errors; (2) ‘lapses’, referring to errors caused by lack of attention; (3) ‘aggressive behaviours’; and (4) ‘positive behaviours’ in relation to other road users. From the original, a shorter version with 20 items, referring to each factor's four largest factor loads, was developed, and its internal reliability was tested and approved. The effects of demographic variables were investigated alongside how demographic variables could impact the ‘transgression’ item, as observed from the discussion of the results. This study helps recognise risk behaviours and adapt user-preventive actions.

The Role of the Judiciary in Ensuring Integrity and Strengthening of the Financial System of the Russian Federation

In the circumstances of the global financial and economic crisis, instability of the international financial system, imposition of economic and financial sanctions on the Russian Federation by Western countries the purpose of which is to destabilize the Russian financial system, lack of clear and consistent domestic financial legislation, it seems necessary to adapt the financial system of the Russian Federation to new realities in order to exclude a negative impact on its development. One of the priorities of government is the formation of effective means and methods of protecting the financial system of the Russian Federation from external actions and from potential internal contradictions. In the conditions of a legal vacuum, the importance of the activities of law enforcement entities in ensuring integrity and strengthening of the financial system increases. Law enforcement entities include courts, the hierarchy of which is headed by the Supreme Court of the Russian Federation. Eliminating of the lacunarity of law has a multidimensional character, since it consists in eliminating the legal errors of the courts of the lower level of the judicial system of the Russian Federation, as well as in identifying problems in the application of contradictory financial, administrative, civil, anti-corruption legislation. In turn, such definitions as «finance» and «financial system» require generalization and formation of uniform judicial legal positions in the relations under consideration and, as a consequence, their formulation in regulatory legal acts. Based on the analysis of judicial practice, taking into account the importance of the mechanism of judicial protection of the rights of participants of financial relations and using the experience of foreign countries in the creation and functioning of financial courts, the author substantiates the promising nature of borrowing positive foreign experience and the need to form a system of financial courts in the Russian Federation

The concept and nature of the occurrence of doctrinal legal errors

The concept and nature of the occurrence of doctrinal legal errors

Accuracy and Preferences for Legal Error

Abstract Legal procedures used to determine liability trade-off type-1 errors (e.g., false convictions) against type-2 errors (e.g., false acquittals). After noting that people’s relative preferences for type-1 errors (compared to type-2 errors) appear to be negatively correlated with technological advancements, we study how the accuracy of evidence collection methods may affect the trade-off between these two errors. Counter-intuitively, we find that under some conditions, greater accuracy may result in a higher probability of type-1 error (or type-2 error) maximizing deterrence. Then, assuming both errors are decreasing in accuracy, we characterize the type-1 error that emerges under electoral pressures (when the median voter’s preferences are implemented): convictions occur more often than is socially optimal but less often than is necessary to maximize deterrence. Moreover, as the harm from crime increases, the median voter becomes less tolerant of type-1 errors as the legal system’s accuracy increases. We also show that, because the median voter is less averse toward type-1 errors than the average citizen, an increase in accuracy may reduce welfare.

Legal error as a concept of general theoretical jurisprudence

Introduction. After presenting error as a social phenomenon, the article focuses on legal error, which is understood as a legally significant action (or inaction) in a state of good faith delusion, the result of which does not correspond to its purpose(s), can or should be corrected, and does not or does not entail legal liability. The author formulates the concept of a legal error, identifies its main features, and also creates a classification of its main types (by legal qualification). The purpose of the article is primarily to characterize legal error from the perspective of general theoretical jurisprudence, to define it as a generic legal concept with justification of its terminological form and internal logic. Summary of the main research results. "Mistake" is a well-established social phenomenon. One of its types is a legal error. According to its main features (objective and subjective), it is a legally significant (lawful, unlawful) behavior in the form of action or inaction; it is behavior in a state of good faith delusion; it is behavior whose result does not correspond to its purpose(s); its negative (undesirable) result can or should be corrected; it is behavior that does not or does not entail legal liability. The distinction between the types of legal error ("by legal qualification") indicates that it is: lawful behavior (permissible); objectively unlawful act ("innocent act"); error ("positive", "negative" by consequences) in the unlawfulness of an act; error as a purposeful result of an offense (deception). Conclusions. According to the legal qualification, a legal error is a dualistic phenomenon, it is a lawful or unlawful action (inaction). The unconsciousness of an error in thinking is traditionally reflected in the term "bona fide delusion" (awareness of an error means the absence of a "state of delusion"). According to the source of the delusion, it is necessary to distinguish between action (inaction) in a state of delusion as a result of a mistake and action (inaction) in a state of delusion as a result of deception. The teleological inadequacy ("target irrelevance") of the result of behavior is an external expression of the error of a specific targeted action (inaction) of a person as a subject of goal setting. A legal error as an objectively unlawful act (an innocent act which makes intent as a form of guilt impossible) is a law implementation error which draws attention to the need to distinguish between an "honest mistake" and an "intentional mistake" (having the features of "deception", "falsification") as opposite phenomena. The classification of types of legal error is not limited to its understanding as an objectively unlawful act, to its typology by types of legal activity. This classification generally applies to both lawful and unlawful behavior of legal entities.

General theoretical aspects of understanding the essence of legal errors in national jurisprudence

Purpose. The aim of the work is to analyze the essence of legal errors in national jurisprudence in a general theoretical aspect, based on the realities and challenges of today. Methodology. The methodology includes a comprehensive analysis and generalization of available scientific and theoretical material and the formulation of relevant conclusions and recommendations. The following methods of scientific reseach have been implemented: terminological, logical-semantic, functional, system-structural, logical-normative. Results. In the process of research, it was recognized that legal errors are complex, multifaceted, negative phenomena, with a certain disguise, with existing deviations and possible illegal consequences, which contradict the real, objective reality in domestic legal practice, which are caused by the activities of the relevant subjects of individual law nature at their own discretion, when performing their functional duties. Therefore, one of the important tasks is to reveal the legal nature and essence of a legal error, to present its deep, meaningful characteristics, to understand the processes of its formation and formation, and therefore, to develop ways of its timely detection, prevention and elimination. Originality. In the process of research, it was established that legal errors in their totality are distinguished by their complexity and contradictions, are a negative element of legal reality with existing deviations, as a possible illegal result of the individual activity of an authorized subject of law based on his own discretion. Practical significance. The results of the research can be used in law-making and law-enforcement activities during the development of proposals for improving the mechanism of its timely detection, prevention and elimination.

Trial and Error: A Comparative Perspective on the Lay Participation in Criminal Trials and Appellate Review of Errors in Taiwan

Taiwan follows its East Asian counterparts to establish a system of lay participation in criminal trials, which is called citizen judges and took effect in January 2023. But Taiwan will soon face similar conundrums, like Japan and South Korea have encountered, about whether to allow professional judges to review and even reverse decisions made by citizen judges. In a mock case, the Taiwan High Court and Taiwan’s Supreme Court both attempted to address the conflict from a perspective of American law, but more controversies have emerged than been solved. This Article follows the route of the two courts and deals with those unsettled controversies in four aspects: legal errors, factual errors, sentencing errors, and the mixed questions of law and fact. This Article advises appellate courts to: (1) employ principles like preservation of claims, plain errors, and harmless errors when reviewing legal errors de novo, (2) incorporate the substantial evidence review with the existing law into a two-step test, through which the appellate review of factual errors may work better, (3) interpret the standard of exceeding unreasonableness in an abuse-of-discretion way when investigating errors in sentencing, and (4) replace the de novo standard with a spectrum approach when reviewing the errors of impropriety, namely the mixed question of law and fact in Taiwan’s context. Through these adjustments in the appellate review process, the new system of citizen judges will better serve to enhance the public knowledge of and confidence in criminal trials as the new system has been entailed.

Celerity of punishment and deterrence: The impacts of discounting and present bias

Swifter punishment influences the deterrence of present-biased offenders in a framework that includes search for criminal opportunities and legal error. The deterrence effects are reinforcing for naïve offenders but may have contrasting effects on search and commission for sophisticated offenders.

ДЕФИНИЦИИ В УГОЛОВНОМ ЗАКОНОДАТЕЛЬСТВЕ

Recent intensive lawmaking has led to a set of novelizations, particularly in defining terminology, that do not always comply with the fundamental requirements of legislative technique. Therefore, law-makers face significant challenges, while convicts’ penalties may be influenced by them. The article detects, substantiates, and illustrates examples of specific poor definitions. The authors propose alternative definitions. In addition, the study determines the main features of a definition, identifies common legal errors made while creating definitions, and describes various types of terms with theoretical and practical value for legislative technique. The authors suggest their own view on the approaches to advancing criminal legislation in creating definitions

General theoretical basis of legal error research (methodology issues)

In this article the author highlighted the successful results of theoretical analysis of scientifi c research on the investigation of legal error, analyzed the nature of such a legal phenomenon, identifi ed the main species and aspects to overcome legal errors. The study revealed the main trends in the concept of legal error, which are embodied in specifi c results, especially the unpredictable consequence of a person’s assessment of certain circumstances (including his actions), which he considered exclusively legitimate, however, which did not turn out to be the case. Our research has shown that error does not arise by itself, it is often the embodiment of misinterpretation, understanding of the content of the rule of law in the minds of the subject, the wrong form of fi xing information in it. Simultaneously, the attitude of legal scholars on the semantic meaning of the concept of «error» in legal science are highlighted, which are quite ambiguous, and often leads to inconsistencies in the conceptual apparatus of modern assumption of law, and require comprehensive research. Therefore, the disclosure of the content of legal errors, as well as fi nding methods to prevent such errors is one of the most important issues to improve legal practice in general and increase the effi cacy of legislation in particular. Furthermore, this article refl ects the main types of legal errors, and since the issue of modern domestic legal doctrine is poorly understood, special attention is paid to doctrinal legal errors. These errors refl ect the systemic and functional deviations of society and the state, and the legal doctrine in modern conditions is a fundamental basis for the legal development of society and the state. Moreover, we analyzed law-making, law-interpreting and lawenforcement errors. Key words: defect, legal consciousness, incorrectness, legal error, doctrine, law enforcement process.

CRIMINAL OFFENCE INTERCOURSE WITH A CHILD WITH REFERENCE TO THE PROBLEM OF INTERCOURSE IN THE ROMA POPULATION

In the middle of 2019, the Court of Appeals in Belgrade passed a controversial verdict acquitting the defendant of the accusation that he committed the crime of intercourse with a child. The basis of the acquittal was found by the Court in the institute of legal error, and this decision divided the legal experts into two opposing groups. The final position was taken by the Supreme Court of Cassation when it determined that such a verdict violated the law in favor of the defendant. In this paper, the author deals with the crime of intercourse with a child, with special reference to the issue of intercourse in the Roma population. The author will first explain the act of committing this crime, then she will analyze the institute of legal error, and then she will deal with the peculiarities of the Roma national minority in the part related to intercourse with a child. The author will discuss the relationship between customs and positive legal norms, citing relevant legal acts, and will dedicate part of the paper to the issue of potential discrimination against the victim of the crime in question. At the very end, the author will analyze the current judgments of the Court of Appeals and the Supreme Court of Cassation through these aspects, while giving concluding remarks on this topic.