Preparatory Proceedings Research Articles

Correlation between the principle of competitiveness and the right of the court to instruct the representative of probation body staff to make a pre-trial report in criminal proceedings

The article highlights the issue of compliance with the general principle of competitiveness of criminal proceedings with the right of the court to instruct a representative of the probation body staff to prepare a pre-trial report on the identity of the accused, which the court implements at the stage of preparatory proceedings, both on its own initiative and at the request of the parties to the criminal legal dispute. It has been found that the principle of competitiveness imposes on the court the obligation, on the one hand, to facilitate the implementation of the procedural rights granted to the parties and not to interfere in the process of proving their own legal position. However, on the other hand, it obliges the court to fully, comprehensively and impartially investigate the circumstances of the commission of a criminal offense to achieve the truth in a criminal case. It has been established that in the case of instructing a representative of the staff of the probation body to prepare a pre-trial report on his own initiative, the court actually goes to the side of the prosecution, since, even before the investigation in the conditions of the trial of any evidence of the person’s guilt, it appoints a pre-trial report with a conclusion on the necessary type and extent punishing the accused for committing an incriminated, but as yet unproven, criminal offense. It was emphasized that the refusal of the court to grant the request of the party to the criminal proceedings regarding the necessity of appointing a pre-trial report is also incompatible with the requirements of the principle of competitiveness, because additional information about the identity of the accused can help the parties defend their legal positions before the court, since they can indicate the presence of circumstances that aggravate or mitigate the defendant’s punishment, or exclude his criminal responsibility. On the basis of the conducted research, a conclusion was formulated, according to which, the resolution on instructing a representative of the probation body staff to prepare a pre-trial report based on the request of a party to a criminal legal dispute will fully comply with the principle of adversarial criminal proceedings, since: 1) it will assist the parties in proving the circumstances before the court, which are included in the subject of proof; 2) will be an additional way to ensure the achievement of the objective truth in a criminal case; 3) will testify to the impartiality and impartiality of the court, which, in the absence of prosecution evidence, will leave to the discretion of the parties the necessity of appointing a pre-trial report with a conclusion on the possibility of correction of the accused without the application of imprisonment or restriction of liberty for a certain period.

Problematic aspects of judicial powers to determine the civil remedy in light of the case-law of the Supreme Court of Ukraine

In the light of the purpose of civil justice to provide effective protection of violated rights and taking into account the duty assigned to Ukrainian courts to assist parties in exercising their rights (while maintaining the objectivity and impartiality of the court), the court according to the principle ‘the court knows the law’, must not only independently determine the nature of dispute and the law that is to be applied to establish the rights and obligations of the participants, but also bring the claims of a lawsuit (the remedy) into line with the understanding established in judicial practice of the appropriate method of defense from the point of view of the ability to ensure the restoration of the plaintiff’s rights as fully and quickly as possible and within the limits of the result (legal consequences in the form of emergence, change or termination of legal relations), for the achievement of which the plaintiff appealed to the court. Refusal of a lawsuit due to the incorrect wording of its subject matter is a manifestation of excessive formalism, and it also leads, contrary to procedural economy, to an artificial duplication of legal proceedings regarding the same legal dispute, without any positive effect, due to which such an approach is incompatible with the purpose of civil proceedings and should not be allowed. The wording of claims, which are based on certain methods of protection, are constituent elements of the legal aspect of the claim, due to which they are quite naturally covered by the scope of the principle ‘the court knows the law’. At the same time, the proactive intervention of the court with the claims defined by the plaintiff must be accompanied by its procedural actions and decisions in order to comply with the principles of objectivity and impartiality of the court, the dispositive nature of civil proceedings and the adversarial nature of its parties. Among other things, the defendant must be provided with the opportunity to submit explanations and evidence in connection with the change (correction) of the subject of the lawsuit by the court, about which the court must notify the parties in the case in advance during the preparatory proceedings or consideration of the case on the merits. For a more predictable application of the principle ‘the court knows the laws’ in all its aspects, including its specific requirements, grounds and methods of its application, should be regulated in the procedural law.

Zdjęcia online i prawnie chronione tajemnice: możliwe konsekwencje prawne publikowania zdjęć zwłok przez personel sekcyjny

Photographs of human remains, including those captured during post-mortem examinations, are occasionally shared on social media for various reasons, extending beyond purely scientific purposes. critical questions regarding the ethical and legal boundaries concerning the publication of such materials. Notably, there is no overarching legal prohibition on the photography and dissemination of human remains. Consequently, each case demands an individual assessment, grounded in the principles of criminal law, civil liability, and ethics, particularly in the context of medical practices. This article offers a comprehensive analysis of the potential legal frameworks applicable to instances where photographs of corpses, taken during or related to autopsies, are published on social media platforms. The analysis encompasses legal guidelines governing autopsy procedures, regulations protecting the confidentiality of preparatory proceedings, the safeguarding of professional and functional secrets, laws against the desecration of corpses, and the upholding of personal rights.

Brak rzetelnej sądowej kontroli aresztu tymczasowego po wydaniu ściganego jako bezwzględna przeszkoda do ekstradycji

The article is a research and scientific study prepared using the dogmatic method. It addresses the most sensitive issues that the Polish Supreme Court has dealt with in recent years in the area of interpretation of obstacles to extradition, i.e. the problem of the lack of prompt and ex officio judicial review of non-judicial pre-trial detention at the stage of preparatory proceedings in the State requesting the extradition of a prosecuted person. In one of its rulings, which is crucial in this matter, the Supreme Court took the position that this deficiency was not a sufficient basis for finding a legal obstacle to extradite the prosecuted. The argumentation of the Court does not deserve full approval. It is a manifestation of failure to notice the requirement, under Article 5 (3) of the European Convention on Human Rights and Article 9 (3) of the International Covenant on Civil and Political Rights, to bring each detained person promptly ex officio before a judge in the context of their personal security. It should be assumed that the lack of prompt and ex officio review of pre-trial detention at the stage of the preparatory proceedings, including bringing the detained person before a judge, after the defendant has been transferred to the authorities of the requesting state, may constitute grounds for assuming that there is a well-founded concern about violation of the defendant’s personal security for this reason. Such an assessment should be made a casu ad casum as necessary, after supplementing the information from the requesting party.

Oględziny miejsca wypadku przy pracy cz.1

Inspection, which is a unique procedural and forensic activity, is an important element of the preparatory proceedings, affecting its entire course and requires thoroughness, reliability and full commitment from those conducting this key activity. Improper recording of the scene of the accident at work may distort the final conclusions and lead the preparatory proceedings to the wrong track, to ultimately make it difficult for the prosecutor or the court, and often even impossible, to make findings consistent with the actual state of affairs. This work, divided into three parts, deals with the problem of accidents at work. It refers to an extremely important procedural and forensic activity, which is the inspection of places of this type of events. It covers the issue of inspection in genere as well as inspection in specie. It also covers the process of documenting the results of the inspection, and, in the final part, formulates de lege ferenda conclusions regarding the reform of the prosecutors’ training program aimed at increasing pragmatism. The first part presents the issues related to the definition of an accident at work, as well as the criminal law classification of accident events and the subjects of such acts.

PROBLEMS OF ENSURING THE RIGHT TO AN EFFECTIVE REMEDY IN CRIMINAL PROCEEDINGS IN THE COURT OF FIRST INSTANCE

The article is devoted to the study of practical problems of exercising the right to an effective remedy in criminal proceedings in a court of first instance. An analysis of the case law of the European Court of Human Rights has made it possible to state that the right to an effective remedy is enshrined in the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, which in turn obliges the State parties to introduce mechanisms for effective legal protection of human rights and freedoms at the national level. An analysis of the domestic regulatory framework suggests that the ineffectiveness of the right to an effective remedy is due to the failure of the criminal procedure legislation of Ukraine to fulfil one of its main tasks - ensuring due process of law. The absence of proper regulation of the procedure for appealing against decisions, actions or omissions during the preparatory proceedings by the participants of the court proceedings is the main cornerstone that falls apart the entire mechanism for exercising the right to an effective remedy at this stage of the proceedings, as provided for in part 2 of Article 303 of the CPC. Based on the theoretical works of scholars and analysing the doctrinal provisions on the interpretation of the concept of "effective remedy", the author offers her own solution to the identified gaps and shortcomings in the practical implementation of the right to an effective remedy at the stage of preparatory court proceedings and court proceedings on the merits of criminal proceedings. The first way is to regulate at least a certain list of issues which may be subject to appeal at the stage of preparatory court proceedings at the level of law, based on the analysis of case law, scientific developments, the essence of the issues which may be subject to appeal, the consequences and expediency of their resolution at this stage of proceedings, and to leave all other complaints for consideration by the court. The second way is to provide for issues that cannot be appealed at this stage of the proceedings, such as, for example, the issue of appealing against procedural actions that entail inadmissibility of evidence, since this issue will be the subject of consideration in the trial on the merits, and all other complaints filed should be considered without delay. The article also draws attention to the urgent need to address the problem of appealing against the denial of a motion to close criminal proceedings, as this leads to a violation of the rights of the accused, since he or she is unable to effectively defend his or her interests. To solve this problem, it is proposed to amend the legislation, namely: to supplement Article 380 of the CPC of Ukraine with a provision that would allow a separate appeal against the refusal to satisfy the motion to close the criminal proceedings, and to clearly define the terms and procedure for appealing against such a refusal. Keywords: criminal proceedings, court proceedings, remedy, effective protection of rights, protection of rights, human rights, legal protection.

The structure of criminal procedural proving in court proceedings in the first instance

In the article the author emphasizes that the process of proving during the pre-trial investigation and in the court proceedings is significantly different, which is naturally determined by the tasks, conditions, and features of these stages of the process. Proving at the stage of pre-trial investigation is characterized by practical activities aimed at actively searching for factual data, while in court proceedings the emphasis shifts to logical and mental activities related to their research, arguments, persuasion, and justification of decisions. The article supports the concept of distinguishing pretrial and judicial evidence, as they are formed in different procedural conditions. It is proposed to distinguish four elements in the structure of criminal procedural proving in court proceedings in the first instance: 1) formation of evidence; 2) research of evidence; 3) evaluation of evidence; 4) use of evidence. The organizing role in the formation of the evidence base is played by the court, which must ensure the opportunity for the parties of criminal proceedings, other participants to submit materials that have evidentiary value, to submit a request to summon persons to a court session for questioning, to perform other procedural actions. The opinion is supported that the formation of criminal proceedings materials (evidence base) should be carried out in preparatory proceedings. It has been established that not every proceeding carries out an research of evidence - it is absent in the case when the court recognizes the inexpediency of the research of evidence regarding circumstances that are not disputed by anyone, simplified proceedings regarding criminal misdemeanours and proceedings based on agreements. Participants of criminal proceedings use evidence in different ways: the parties and other participants of the proceedings use evidence to justify their legal position both in the proceedings as a whole and in relation to individual issues to be resolved; the court puts them in the basis of the court decision, justifying it. In view of the proposed structure, the author's definition of criminal procedural proving in court proceedings in the first instance is presented.

Ustalanie właściwości sądów polskich (nieniemieckich) w sprawach karnych przez prokuraturę niemiecką w Generalnym Gubernatorstwie w latach 1939–1945

The article discusses the issue of determining jurisdiction by the German prosecutor's office in criminal cases in the General Government concerning the Polish (non-German) judiciary. The study uses the legal-history methodology. The author indicated and analyzed the legal basis for the subject matter. The procedure for determining jurisdiction has been reconstructed, from preparatory proceedings to the possibility of changing final judgments. In addition, criteria were indicated that determined the selection of a specific type of court to consider a case. The article also analyzes the practice of the German prosecutor's office in this regard. The research was based on the analysis of the preserved files of proceedings of German courts, special courts, and Polish (non-German) courts, which met the criteria of the adopted methodology. The thesis of the work assumes that the German prosecutor's office transferred to special courts, apart from those cases that belonged to their jurisdiction under the provisions of the regulations in force in the General Government, also those that concerned acts and perpetrators requiring severe punishment, under the Nazi views on criminal law.

Issuance of the European investigation order at the stage of a preparatory proceeding for the purpose of obtaining information constituting bank secrecy

Abstract The article discusses matters related to the issuance of the European Investigation Order (EIO) during the stage of a preparatory proceeding, the objective of which is to obtain information protected by banking secrecy from a foreign bank. Attention is drawn to the essence of this instrument of international cooperation in criminal matters and its comprehensive nature. A key problem revealed in prosecutorial and judicial practice consists of determining the entity competent to issue the European Investigation Order in the in rem phase of the preparatory proceedings. This issue also necessitates determining whether, in such a procedural situation, it is necessary to obtain the consent of the district court to access information subject to bank secrecy and whether this affects the scope of competence of the court or the prosecutor. An examination of case law and the accompanying opinions of the doctrine presented in the article reveals a non-uniform, even mutually exclusive, approach to this issue. A critical look at the presented range of views enables a clear stance on the aforementioned issues and the formulation of a de lege ferenda proposal.

Obtaining Evidence Protected by Banking Secrecy through European Investigation Order in Preparatory Proceedings. Remarks from the Polish Perspective

The subject matter of considerations undertaken in the paper is the issue of obtaining evidence entailing banking secrecy under the European Investigation Order at the stage of the preparatory proceedings from the Polish perspective. The examination of the described evidence activity is often necessary to make key findings, for example, in the field of the data on bank accounts or bank transactions. Actions taken in this regard may concern the monitoring of banking opera­tions and may also be used for establishing financial links be­tween entities operating in different European Union Member States. The procedure for applying the European Investigation Order generates many problems in the analysed scope, in par­ticular at the stage of the preparatory proceedings, starting from determining the authority competent to issue the European In­vestigation Order, to the need to consider legitimacy of obtain­ing the consent by the prosecutor to exempt from banking se­crecy in order to further request for the required information. Against the background of the issues presented in the article, an attempt was made to analyse the normative institution of the European Investigation Order, used for obtaining evidence covered by banking secrecy, and to show the model that deter­mines its optimal functioning in the face of existing problems in the application challenges related to the European cooperation in this area.

Procedural Obstacles in Cases of Appealing Decisions, Actions, Inaction of the National Agency for on Corruption Prevention

The relevance of the article lies in the fact that fair and correct resolution of administrative cases involving appeals against decisions, actions and omissions of the National Agency for the Prevention of Corruption is possible only if all the principles of administrative justice are observed. Good faith in the exercise of procedural rights and strict observance of obligations by all participants to administrative proceedings is defined as one of the principles of administrative justice, and its observance plays a key role in achieving the objective of administrative justice. The purpose of the article is to analyze procedural obstacles, in particular, abuse of procedural rights, in the course of consideration of cases involving appeals against decisions, actions and inactions of the National Agency for the Prevention of Corruption. The study applies dialectical, formal legal, comparative legal, logical and semantic, statistical methods of scientific knowledge, as well as methods of observation, forecasting, classification and grouping, and prediction. The author examines certain aspects of the organization and activities of the National Agency for the Prevention of Corruption. It is proved that the most common administrative cases involving appeals against decisions, actions or omissions of the NAPC are the recognition as unlawful and the reversal of the decision of this public administration entity on the results of a full verification of the declaration of a person authorized to perform the functions of the State or local self-government. It is emphasized that procedural obstacles may arise during consideration of cases involving appeals against decisions, actions, and inactions of a public authority. The author examines such a procedural obstacle as abuse of procedural rights. The author analyzes the dual aspect of abuse of procedural rights, in particular, the substantive and procedural aspects. The author establishes that abuse of procedural rights which have a substantive legal aspect may arise when applying to an administrative court. It is noted that the procedural and legal aspect is related to the abuse of procedural rights at various procedural stages of administrative proceedings to appeal against decisions, actions and inactions of the NAPC, in particular: 1) opening of proceedings; 2) preparatory proceedings; 3) consideration of the case on the merits; 4) adoption and adoption of a court decision. The author provides the stages at which abuse of procedural rights may occur, given that the case is considered in the form of general action proceedings by the court of first instance. Based on the study, the author formulates conclusions and provides recommendations that abuse of procedural rights as a procedural obstacle in administrative cases concerning appeals against decisions, actions, and inactions of the NAPC may have a dual purpose: to create procedural obstacles and to delay the consideration of a case. The application of procedural consequences by the court depends on the type of abuse of procedural rights committed at a particular stage of the proceedings.

Limitation of the rights of the accused under the new Article 266 § 1a of the Code of Criminal Procedure

This article deals with the issue of financial guarantee in the aspect of changes to the Code of Criminal Procedure. The author analyzes the introduced change and its impact on the rights of the accused, the possibility of the surety and, in a broader context, on the course of the preparatory proceedings. Particular attention will be paid to the litigation risks, the increase in the prosecutor’s powers, the limitation of the possibility of using the surety, as well as possible constitutional violations. The analysis will be carried out with the use of elements of the normative set method.

Whether the decision of the investigating judge on the cancellation of the attachment of property or on the refusal of such cancellation is subject to appeal

Once again, the Supreme Court and scientists were asked the question of which of the decisions of the investigating judge are subject to an appeal, and which are not subject to such an appeal in the course of the pre-trial investigation. Today, the immediate object of our research, as well as that of the joint chamber of the Criminal Court of Cassation as part of the Supreme Court, is the decision of the investigating judge to cancel the seizure of property or to refuse it. The positions of the chambers of the Supreme Court are not the same, which is illustrated by the decision of the joint chamber of the Supreme Court of Justice dated February 19, 2019. in case No. 569/17036/18 (proceedings No. 51-598kmo19) and the panel of judges of the First Judicial Chamber of the CCS of the Supreme Court dated March 14, 2023. in case No. 760/5570/22 (proceedings No. 51-3149km22), etc. The research aims to find out whether in this particular case it is an implicit interpretation of the provisions of Art. Art. 174, 309 of the Criminal Procedure Code of Ukraine, which gives grounds for the statement that the decision of the investigating judge to cancel the seizure of property is subject to appeal or that the list of parts 1 and 2 of Article 309 of the Criminal Procedure Code of Ukraine is exhaustive and is not subject to extended interpretation. The applied formal-logical method, deductive reasoning and discursive thinking resulted in a scientific conclusion that, during the pre-trial investigation, the decision of the investigating judge to cancel the seizure of property is not subject to appeal, as it is clearly provided for by criminal procedural norms and is not included by the legislator in the exhaustive list parts 1 and 2 of article 309 of the Criminal Procedure Code of Ukraine. The article substantiates that in such a procedural situation, during the preparatory proceedings in court, the participants have the right to use the procedural opportunities provided for in Part 3 of Article 309 of the Criminal Procedure Code of Ukraine. With the considered legislative state of affairs, aware of the complexity of those procedural challenges that take place in the pre-trial investigation and follow from the need to ensure and respect the rights of its participants, the legislator is once again called upon to hear the voice of those colleagues-proceduralists who, for ten years, stating a wrong legislative approach in constructing Article 309 of the Criminal Procedure Code of Ukraine and other similar norms, call to change it or at least expand the list, which is regulated by parts 1 and 2 of Article 309 of the Criminal Procedure Code of Ukraine.

Peace agreements at certain stages of the civil process

The article is devoted to the analysis of the main theoretical and practical problems of the classification of settlement agreements according to the criterion of the stages of the civil process. The author supports the concept common in the theory of the civil process, according to which the stages of the civil process are distinguished according to the criterion of the closest procedural goal. According to this approach, it is claimed that it is possible to single out settlement agreements that can be concluded at the stage of preparatory proceedings, the stage of dispute settlement with the participation of a judge, the stage of consideration of the case on the merits, the stage of appellate appeal of court decisions, the stage of cassation appeal of court decisions, the stage of review of court decisions under newly discovered and exceptional circumstances, stages of execution of court decisions. The possibility of concluding a settlement agreement at the stage of opening proceedings in the case is denied, since this stage does not involve the participation of the defendant, who learns about the civil case only after receiving a court order to open proceedings in the case. In addition, according to the formed position of the Supreme Court, the conclusion of a settlement agreement is possible only after the opening of proceedings.It is indicated that at any stage of the civil process, where it is allowed to conclude a settlement agreement, its approval by the court is possible, except for the stage of settlement of the dispute with the participation of a judge, where the concluded agreement is approved at the stage of preparatory proceedings. It is noted that when concluding a settlement agreement at the stages related to the appeal and execution of the court decision, it should be taken into account that the dispute about the right has already been resolved by the court of first instance. Therefore, the legislator allows the court of appeal and cassation instance to declare invalid the court decisions of the courts of the lower instance when concluding a settlement agreement at these stages of the civil process. At the stage of execution of the court decision, it is not recognized as invalid, but the approval of the settlement agreement is carried out by the court, and not by a state or private executor.Motives for concluding a settlement agreement are determined after the legal dispute in a civil case has already been resolved by the court of first instance.

Commentary to the resolution of the Supreme Administrative Court of 24 May 2021, ref. no. I FPS 1/21Indirect control by the administrative court of the financial activities of the preparatory proceedings in criminal proceedings, resulting in the suspension of the limitation period for the tax liability

The gloss draws attention to the fact that in the commented resolution the Supreme Administrative Court in created the construction of indirect control of certain financial actions of the pre-trial investigation bodies in fiscal penal proceedings, which produce effects in the material-legal situation of the taxpayer. The resolution is undoubtedly an example of the law-making (norm-creating) role of the jurisprudence of administrative courts.The ruling guaranteed the comprehensive (complete) nature of the administrative court's control over the activities of the tax authorities, also when certain material-legal effects are triggered by actions taken under the provisions of criminal law by the financial pre-trial authoritiesEn la glosa se señala que, en la resolución comentada el Tribunal Supremo Administrativo creó la construcción de un control indirecto de determinadas actuaciones financieras de los órganos de instrucción en los procedimientos penales fiscales, que producen efectos sobre la situación material y jurídica del contribuyente. La resolución es, sin duda, un ejemplo de la función legisladora (creadora de normas) de las sentencias de los tribunales administrativos. La sentencia garantizó el carácter integral (completo) del control del tribunal administrativo sobre la actuación de la administración tributaria, también cuando se desencadenan determinados efectos relacionados con el derecho sustantivo como consecuencia de las medidas adoptadas sobre la base de las disposiciones del derecho penal por las autoridades de investigación prejudicial financieraPalabras clave: legislación fiscal, control jurisdiccional de la administración fiscal, suspensión de la prescripción de una obligación tributaria, carácter normativo de la justicia administrativa

Glosa do wyroku Sądu Najwyższego z dnia 28 lutego 2023 r. I KK 437/22

The gloss concerns the admissibility of changing the description of the act alleged against the defendant and/or his legal qualification in the penal order in the context of the statutory prerequisites for adjudication in penal order proceedings. The author expresses the view that such a change is possible if it does not go beyond the limits of the prosecutor’s complaint and is based on the evidence collected in the preparatory proceedings. If there are evidentiary doubts as to the circumstances of the act and the guilt of the accused, the same proceedings in the order for payment procedure are inadmissible, and consequently the court may not issue a penalty order. However, if the evidence allows for adjudication in the prescriptive mode, the court may change the description of the act alleged against the accused and/or his legal classification, as the procedural law does not rule out such a possibility.

Glosa do wyroku Sądu Najwyższego z dnia 6 lipca 2022 r. III KK 177/22 / Gloss to the judgment of the Supreme Court of July 6, 2022 III KK 177/22

The gloss concerns the possibility of applying Art. 37a § 1 k.k. in order for payment proceedings, i.e. the possibility of imposing a fine or penalty of restriction of liberty instead of imprisonment, taking into account the model of order for order proceedings in the Polish criminal process. The author expresses the view that this is not possible due to the fact that the court decides at a sitting without the participation of the parties (and thus also without the participation of the accused) and does so only on the basis of the evidence collected in the preparatory proceedings. Therefore, the court is not able to verify the circumstances that are important for deciding whether to impose an isolation or a prison sentence, and there are no conditions to determine that it is possible to impose a custodial sentence and then change it to a fine or restriction of liberty. Key words: penalty order, imprisonment, fine or restriction of liberty instead of imprisonment

Stosowanie tymczasowego aresztowania wobec oskarżonych odbywających karę pozbawienia wolności w innej sprawie / Applying pre-trial detention to convicted to imprisonment in another case.

The polish legislator made the correct application of all preventive measures conditional on the requirement to achieve the purposes from article 249 of the Criminal Procedure Code. Therefore, it is unacceptable in the current legal situation to use these measures without achieving the indicated goals. At the same time, it is normatively permissible to apply preventive measures, including pre-trial detention, to convicted who are already serving a sentence of imprisonment in another case. However, the current model of regulating this structure should lead to the formulation of a few reservations. This study expresses the author’s doubts as it is possible to apply pre-trial detention to convicts already serving a sentence of imprisonment in a case other than the ongoing preparatory proceedings. A side analysis was also carried out on the possibility of using other, except pre-trial detention, preventive measures against the convicted, as well as the possibility of using other criminal law instruments to secure the proper course of the preparatory proceedings and to prevent the convicted from committing a new, serious crime. Key words: preventive measures, pre-trial detention, convicted, purpose of applying pre-trial detention

Zaskarżalność odmowy sporządzenia odpisów lub kopii akt w postępowaniu przygotowawczym

The term "providing access to files" in the article 159 of the Polish Code of Civil Procedure has blank character, referring to the regulations stipulating the rights and obligations related to the provision of files in the preparatory proceedings. Therefore, the meaning of this term should be decoded in reference to other regulations. It was shown that terms "providing access to files", "making excerpts or copies" and "issuing certified excerpts or copies" in the article 156 § 5 constitute arguments of conjunction, as a result of which a procedural decision must be of the same type (positive or negative) and must cover all parts of the conjunction together. It was also proved that making the files available in such a way that a party could record their contents is supported by functional interpretation and guarantees under the right of defense.

우리 민사재판의 미래에 관한 소고

Discovery, online litigation, and artificial intelligence are important challenges that can fundamentally change our civil litigation in the future. Discovery needs to be introduced in terms of providing the parties with a means of collecting evidence for the discovery of substantive truth, which must be supplemented in our civil proceedings. However, I suggested that it is reasonable to limit the scope of introduction to appropriate and reasonable measures in consideration of the fact that our legislation does not have a jury system unlike the United States or the expected cost explosion, and that it is necessary to return as a so-called new model to implement preparatory proceedings for pleadings. In addition to electronic lawsuits and video trials already being successfully implemented, ODR, a simple online dispute resolution procedure, should be applied to micro trials to implement online procedures consisting of three pillars of electronic litigation-ODR-video trials. In addition, the possibility of introducing asynchronous hearing in international arbitration or some foreign courts was examined. Artificial intelligence seems to be in the distant future in light of the current technology level, but in light of the rapid development of digital technology, the issue of the emergence of artificial intelligence judges at some point was reviewed in terms of technological and normative substitution. The reason for the existence of civil litigation lies in dispute resolution, so this should be the central value of all procedural laws and systems. Thus, faster, more efficient, and less hostile dispute resolution mechanisms will have to be devised over time. Every attempt has its gain and its loss. It is time for rational and flexible thinking to minimize risk and maximize benefits, so that traditional procedural theories and overwhelming methodological innovations can be exquisitely blended to bring about the best results for dispute resolution. In response to the penetration of new systems and technologies, it is time to draw with a clear and correct eye what civil lawsuits we hope for.