Legal Presumption Research Articles

The Role of Legal Presumptions in Patent Litigation

We formally analyze the effects of legal presumptions in patent litigation. We set up a novel contest model to study litigation outcomes, judgement errors, and resource dissipation under three alternative presumption criteria: a presumption that the patent is valid; a presumption that the patent is invalid; no presumption regarding validity. Our findings reveal that any legal presumption – either in favor of validity or invalidity – is preferable than a no-presumption criterion when there is high uncertainty about the patent’s objective merit.

Considerações sobre a presunção absoluta de miserabilidade na LOAS: uma análise à luz da tese definida no IRDR 5013036-79.2017.4.04.0000/RS julgado pelo TRF da 4ª Região

O artigo apresenta estudo do benefício assistencial de prestação continuada ao idoso e deficiente no que concerne ao critério de renda legalmente estabelecido para sua concessão. Inicia-se por um breve escorço histórico do instituto, com destaque para as principais alterações jurisprudenciais sobre a matéria, em especial no que concerne à interpretação do §3º do art. 20 da lei 8742/1993 e oscilação referente à classificação como presunção juris et de juri ou juris tantum. Passa-se, então, à análise do IRDR 5013036-79.2017.4.04.0000/ RS, julgado pelo TRF da 4ª Região, que fixa a tese da presunção absoluta de miserabilidade nas hipóteses de enquadramento da renda per capita ao critério estabelecido na Lei Orgânica de Assistência Social.

LEGAL PRESUMPTIONS AND ASSESSMENT OF THE CREDIBILITY OF ELECTRONIC EVIDENCE RELIABILITY IN CIVIL PROCESS

The article is devoted to the research of the causes and conditions for the application of various constructions of procedural presumptions regarding the facts and circumstances associated with obtaining electronic evidence in civil procedure.At the very beginning it is ascertained that the Civil Procedure Code of Ukraine does not contain any rule presuming the reliability of facts and circumstances related to electronic evidence. At the same time, evidentiary presumptions are among the most common guarantees of electronic evidence reliability in the world. On this basis, the theoretical legal research of the general conditions for formulating evidentiary presumptions and the procedure for their application with regard to electronic means of proof in the civil procedure of Ukraine seems to be relevant.Special attention in the article is paid to the foreign experience of legal regulation of evidentiary presumptions and the practice of their application in relation to various types of electronic evidence. In particular, the author concerns the presumption of reliability and the judicial notice doctrine.The article also analyzes various approaches of Ukrainian scientists to the use of presumptions regarding electronic evidence, as well as some provisions of the current legislation of Ukraine containing legal presumptions that can be applied to confirm or refute the reliability of digital data in civil procedure. Inter alia, the author draws attention to the presumption of authorship and the presumption of authenticity whereby an electronic document affixed with a qualified electronic signature is considered to be authentic. Their key advantages and disadvantages of these presumptions are identified.Based on the analysis, it is concluded that it is necessary to consolidate a greater amount of presumption in the civil procedure legislation of Ukraine regarding the reliability of electronic evidence in order to facilitate a better balance of interests among all the proving subjects. The general requirements for the formulation of the relevant presumptions are also defined. For the purposes of lawmaking, it is determined that the presumptions of electronic evidence reliability should be conditional. Their application should be determined by the ability to prove some other relevant facts and circumstances, supported by additional evidence. Furthermore, presumptions about the reliability of digital data based on evidence of the proper computer functioning should be rebuttable. Participants in the case should always have an ability to prove a fact contrary to the presumed one. The barrier to overcome such presumptions should not be too high.

Institutions of International Law: How International Law Secures Orderliness in International Affairs

This article is a plea for adopting a reinvigorated, analytic perspective on contemporary international law, building on MacCormick’s powerful insights into law’s essential structure. The article proposes that international law as whole forms an institutional normative order. The idea of institutional normative order has certain conditions. These link a normative conception of international law with the means of achieving it. The article makes three arguments on these conditions. It first argues that the function of international law is to create order in the sense of orderliness for its principal users, States and international organizations. It then claims that international law establishes normative order through international rules that are binding from the viewpoint of States and international organizations. An international process of rule-making embedded in State practice turns norms into such rules. The process is being held as a bindingness-creating mechanism because it formalizes rules through recognized means and organizes collective consent to authorize them. States and international organizations then apply these rules by exercising international legal powers under a defeasible presumption of legality. Third, the article argues that this normative order becomes institutionalized. The institutions of international law are grounded in ideas about agencies, arrangements, and master-norms that integrate the mass of international rules and principles. The article exemplifies these arguments for UN-driven international law with the relating recent jurisprudence of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and Annex vii tribunals, and the Court of Justice of the European Union. The upshot of this idea of international law as institutional normative order is unity, or indeed a system. No part of international law can be seen outside of this context and hence the burden of argumentation is on those wishing to make the case for divergence.

Kidney Procurement System in Colombia: A System Dynamics Approach

Objective: This paper presents an analysis of two regulatory proposals in response to the growing demand for kidney transplants in Colombia. The results can be useful in evaluating these possible policy interventions once they have been implemented. Methods: The proposed model uses System Dynamics as a tool to understand the behavior of this complex social system if two intervention projects are executed. The first is a bill of law seeking to expand the legal presumption of organ donation. The second one is to implement a Kidney Exchange Program. The analysis is made in two parts. Firstly, a causal loop diagram is proposed. Secondly, the simulation of the system using a stock and flow diagram is analyzed. Results: Results show that the projects can balance the system and encourage donations. Conclusion: The implementation of a KEP is recommended since it achieves stability of the system earlier than the amendment to the law, with a reduction in the waiting list size.

Institutions of International Law. How International Law Secures Orderliness of International Affairs

This article is a plea for adopting a reinvigorated, analytic perspective on contemporary international law, building on MacCormick’s powerful insights into law’s essential structure. The article proposes that international law as whole forms an institutional normative order. The idea of institutional normative order has certain conditions. These link a normative conception of international law with the means of achieving it. The article makes three arguments on these conditions. It first argues that the function of international law is to create order in the sense of orderliness for its principal users, States and international organizations. It then claims that international law establishes normative order through international rules that are binding from the viewpoint of States and international organizations. An international process of rule-making embedded in State practice turns norms into such rules. The process is being held as a bindingness-creating mechanism because it formalizes rules through recognized means and organizes collective consent to authorize them. States and international organizations then apply these rules by exercising international legal powers under a defeasible presumption of legality. Third, the article argues that this normative order becomes institutionalized. The institutions of international law are grounded in ideas about agencies, arrangements, and master-norms that integrate the mass of international rules and principles. The article exemplifies these arguments for UN-driven international law with the relating recent jurisprudence of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and Annex VII tribunals, and the Court of Justice of the European Union. The upshot of this idea of international law as institutional normative order is unity, or indeed a system. No part of international law can be seen outside of this context and hence the burden of argumentation is on those wishing to make the case for divergence.

The Tin Ear of the Court: Ktunaxa Nation and the Foundation of the Duty to Consult

The recent Ktunaxa Nation decision of the Supreme Court of Canada provides an opportunity to discuss the fundamental legal presumptions that underlie the Crown’s duty to consult and accommodate Aboriginal peoples. The jurisprudence in this area has been based on a “thick” conception of Crown sovereignty as including legislative power and underlying title in relation to Aboriginal lands. This, in the Supreme Court’s view, justifies the possibility of the unilateral infringement of Aboriginal rights. This framework assumes that the relationship between the Crown and Aboriginal peoples is a sovereign-to-subjects one. This assumption, however, lacks a legal and factual basis.
 Conversely, Aboriginal peoples articulate their claims in the language of inherent jurisdiction within a nation-to nation relationship. If the Supreme Court acknowledged that the relationship between the parties is indeed nation-to-nation, the appropriate doctrine would no longer be a duty to consult and accommodate. Following the approach to a similar relationship outlined by the Supreme Court in the Secession Reference, the appropriate model would be a generative duty to negotiate. This article sets a path to a model that preserves the useful components of the duty to consult while providing a remedy to the distributional inequity in bargaining power created under the current framework, thereby opening avenues for effective conflict resolution.

Book Review: Beyond Mechanism: Putting Life Back into Biology edited by Brian Henning and Adam Scarfe

The Paranormal Surrounds Us is a tied-together collection of essays by Richard Reichbart, a practicing psychoanalyst whose several strong interests and lifelong love for the mystery of psi, and sense of adventure and ethical sensibility, give the collection several points of focus. In addition to his current analytic practice of many decades, he has also been a student of literature, a playwright, a Yale-trained attorney, and an activist for Native American and African American rights. The book is as scattered as he has been, but it is so full of insights and pleasing prose, that it doesn’t lose much for that. In this time when we prefer our intellectual material in bite-sized chunks, like sparky TED Talks and internet articles, this may feel especially friendly to many. If there is an implicit, underlying focus to the work, it may be implicitly biographical: one curious man’s study of, to paraphrase Freud, the vicissitudes of psi – its expression in our finest literature, in our private and shared unconscious processes, in our different subcultures, in the deepest privacy of intensive psychotherapy, and in the legal and cultural presumptions that implicitly structure our thinking and behavior.  There are three main sections to the book: Psi Phenomena in Western Literature, Psi Phenomena and Psychoanalysis, and Psi Phenomena and Culture.

REGARDING THE ISSUE OF LEGISLATIVE ATTACHMENT OF THE PRESUMPTION OF THE POLICE TRUST (FOREIGN EXPERIENCE)

The article is devoted to studying the problem of the expediency of legislative consolidation of the presumption of police trust (on the part of the state), proposed in draft federal law No. 828616-6 «On Amendments to the Federal Law «On Police» and certain legislative acts of the Russian Federation». The study and comparative legal analysis of regulatory documents governing the police activities of a number of countries did not reveal the legal presumption of police trust in the legal systems of these states. Legal aspects of the institution of police trust in foreign countries are revealed both in regulatory documents and in scientific discourse, primarily in the sense of the basic principle, criterion and factor of the effectiveness of the police.

Presumption of Negligence and the Robustness of Liability Incentives

In the U.S. and in most other jurisdictions, the burden of producing evidence on a contested issue traditionally falls on plaintiffs. In a tort claim, this de facto creates a presumption of nonnegligence in favor of injurers. In recent times, Europe placed renewed attention on “presumed liability,” which instead creates a presumption of negligence against injurers. In this paper, we analyze the effects of these legal presumptions on parties’ care incentives in the presence of discovery errors. Differently from what was suggested in prior research, we show that legal presumptions do affect primary behavior: presuming that the injurer was (not) negligent strengthens (weakens) his care incentives in situations where the plaintiff faces probatory difficulties. We analyze how these effects should inform the choice of evidence regimes to improve the robustness of liability rules, and to minimize the dilutive effect of imperfect adjudication on the parties’ care incentives.

LEGAL ASSUMPTION AS THE BASIS FOR REMOVAL OF BURDEN OF PROOF

This work is part of the author's research promotion work on evidence in tax law. The author establishes in his work the objective of examining the legal assumption – the presumption, replacing the evidence in the dispute, which, in turn, is the basis for transferring the burden of proof to the other party involved in the dispute. The author comes to the conclusion that the burden of proof, whether transferable or not, has been transferred to the opposing party in cases where the evidence has been replaced by a presumption. The author uses scientific methods in his work: analytical, inductive (cognition), monographic or descriptive, quantitative, qualitative method. The author examines the grounds of proof and the interaction of legal presumption only in the field of public law, in particular in criminal procedural and administrative infringement proceedings. In this work, as in previous works, the author examines procedural issues of administrative offences identical to criminal law, based on the notion that administrative violation rights are viewable like criminal matters, on the same principles and standards of evidence.

Rebutting the Presumption: Rethinking the Common Law Principle of Marital Coercion in Eighteenth- and Nineteenth-Century England

ABSTRACTWhile many historians refer to the legal presumption of marital coercion when discussing patterns of lenient judicial treatment of women in eighteenth-and nineteenth-century English criminal trials, few have analyzed the presumption in enough detail to ascertain the impact it genuinely had. This article undertakes close legal analysis of marital coercion. It argues that the presumption was not frequently referred to in nineteenth-century Old Bailey criminal trials for receiving stolen goods because of increasing judicial strictness as to the application of the presumption. A defendant had to prove her marriage, her husband’s presence at the crime scene, and, by the nineteenth century, evidence of her husband’s actual control. The presumption may have shifted from an irrebuttable presumption to one rebuttable upon proof that any of these requirements were absent. Therefore, women’s lenient court treatment during the modern period cannot be straightforwardly attributed to frequent successful recourse to marital coercion.

Intelligibility of legal documents: legal fiction or presumption?

««Вестник Санкт-Петербургского университета. Право» — международный научно-теоретический рецензируемый журнал, публикующий материалы в следующих рубриках: Публичное и частное право: прикладные исследования Криминология Криминалистика Судебная экспертиза Исследования права с позиций социальных и гуманитарных (неюридических) наук Правовая жизнь: научно-практические заключения, комментарии и обзоры Сравнительное право Зарубежное право

SAND IM GETRIEBE DER VERWALTUNGSFUNKTION: DER FEHLERHAFTE/RECHTSWIDRIGE VERWALTUNGSAKT UND DESSEN KONTROLLE

The article discusses the issue of the existence and legal repercussions of illegal administrative acts according to Greek Administrative Law. Following the principle of legality, the operation of the public administration and especially the issuing of administrative decisions should be fully governed by the relevant legal provisions; nevertheless, it rather often happens that decisions are taken, which are partially or completely in violation of legal provisions. Despite that fact, and due to the existing principle of enforcement of administrative decisions independently of their legal status (presumption of legality of the administrative decisions issued), even illegal decisions are producing legal results and have to be removed or suspended in order to re-establish legality. In the article the various types and categories of problematic decisions are presented. This issue is presented according to the theory of Administrative Law in Greece. In addition, the legal remedies foreseen for restitution of legality, other remedies and procedural functions are considered, which can be employed either by the institutions themselves or by the citizens negatively affected in their rights by the problematic decision. Even though the situation at legislative level seems to be satisfactory, the current manifold crisis of the country has led to the (pretty often conscientious) production of uncommonly many incorrect and illegal decisions, the suspension of which requires time and resources, whereas in the meantime the citizens involved have to struggle to maintain their rightful status or even to merely socially and economically survive. The quantity of such decisions of the administrative and State-institutions is reaching a threshold which can be considered risky and dangerous, not only for the parties involved but in the medium-term also for the overall democratic structure of the country’s executive and administration.

A jogszerű adatkezelés a GDPR rendelet után

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), became effective on 25 May 2018. With the regulatory form the legislator raised the regulation of the right to the protection of personal data within the European Union to a higher level. The legislative act has a fundamental impact on the legal systems of the member states showing various differences from each other. Further, it can be stated as a general experience that the right to the protection of personal data and the nature of such right are less known either to those affected or to the data controllers. The new legislative act and the penalties with increased amounts [Article 84 of the GDPR] demand the elaboration of a study understandable for laics, too. Finally, as a result of the General Data Protection Regulation, the institution system ensuring the protection of personal data has fundamentally changed, so, therefore, it is also necessary to examine the authorities of the member states and the Union, as well. The study primarily approaches the occurring problems from the practice side. Accordingly, the examination conducted by the Commission nationale de l’informatique et des libertes (CNIL) against Google is described, as the first significant penalty imposed based on the General Data Protection Regulation. The first part of the study is intended to present the right to the general protection of personal data. The historical part addresses in details the major elements of the historical development of data protection and the development of its contents, with particular regard to the appearance of the right to information self-determination based on the so-called “census-judgement” of 1983 of the BVerfG (Federal Constitutional Court of Germany). Finally, this part touches upon the theories defined in connection with the historical generations of the right to the protection of personal data. After the historical part the study addresses the peculiarities of the right to the protection of personal data, paying particular attention to separation from the neighbouring legal areas. The second part is intended to present the prevalence of the right to information self-determination according to the GDPR. It is the institution system protecting personal data that has undergone the most significant change. The Work Group under Article 29 has been replaced by the Data Protection Agency set up based on the GDPR. Setting up the Agency, enlarging its scope of authority and its stronger independence from the executive powers of the Union can, by all means, be evaluated positively. As regards the security of personal data, the practice, major directives and opinions of the Work Group under Article 29 have been examined. It is a significant step forward that the GDPR has made the sphere of special personal data more specific, promoting by this the increase of the extent of protection. It is important that, as a general rule, the Regulation forbids controlling special personal data. The definition of the concept of personal data is an essential condition for understanding the regulation. In addition to the principles of controlling personal data, the legal fundaments of data control have particular significance, with special regard to the consent and the data control necessary for performing the contract. In my view, the consent is a legal fundament of auxiliary nature for data control, which is also supported by the opinions of the Work Group, too. Granting the consent and the individual excluding circumstances occurring in connection with this, were examined on a case-by-case basis. In my opinion, the automated decision making process and the regulation of profile creation are one of the most cardinal issues of the GDPR. The way in which profiles are created, their use and the permissibility of such use are discussed in details. In my view, the regulation of the GDPR is deficient as regards the automated decision making process and the profile creation. The decision making necessary for performing the contract is not separated sharply enough, and it is not necessary for this. In my opinion, in respect of this latter sphere of cases the GDPR is not strict enough and may easily serve as a basis for misuse on the part of data controllers. In my view, granting the consent should be made stricter in respect of creating profiles and the introduction of the (contradictable) legal presumption of refusal would also be desirous.

القرینة الشرعیة الموجبة للحکم النحوی فی تفسیر التحریر والتنویر

الحمد الله والصلاة والسلام علي أشرف خلق الله سيدنا محمد وعلي أصحابه والتابعين وتابع التابعين وبعد...... فقد تناول هذا البحث القرينة الشرعية الموجبة للحکم النحوي عند ابن عاشور وتم فيه تعريف القرينة في اللغة و الاصطلاح وعند علماء الشريعة مبتدئة بسورة الفاتحة ومنتهية بسورة الکهف وترتيب البحث حسب أبواب النحو مستمدة مادته من کتب النحو القديمة والحديثة وکتب التفاسير والأحاديث وکتب التراجم ويتقدم ذلک کله کتاب الله عز وجل وقد توصلت بالبحث إلي عدة نتائج أهمها: - القرينة الشرعية الموجبة للحکم النحوي هي التي تقتضي علة توجب ذلک الحکم . - الحکم النحوي الذي أوجبته القرينة هو الحکم الأول المقدم في ترجيحات ابن عاشور. - أثبت البحث بناء (ريب) في قوله تعالي لا ريب فيها مع لام العلة في ذلک القرينة الشرعية المصاحبة للآية. - أثبت البحث ( شرکاء) في قوله تعالي: فأجمعوا أمرکم وشرکاءکم يجب نصبه لأنه لم يرد في المصاحف مرفوعا . - أثبت البحث (حکما)في قوله تعالي أنزلناه حکما عربيا تعرب حالا لأن المراد أنواع التکاليف والفرائض. - أثبت البحث (رعبا) في قوله تعالي: ولملئت منهم رعبا تعرب تمييز محول عن الفاعل لأن المراد أصحاب الکهف. - أثبت البحث (اللام)في قوله تعالي : قالت أخراهم لأولاهم للتعليل لأن الخطاب موجه إلي الله تعالي . - أثبت البحث (أجمعين) في قوله تعالي: لأملأن جهنم من الجنة والناس أجمعين تأکيد للصنفين أهل الجنة وأهل النار. - أثبت البحث (أو) في قوله تعالي أن يقتلوا أو يصلبوا أو تقطع أيديهم وأرجلهم للتقسيم لا للتخيير. Blessings and peace be upon the most noble of Messengers, the Prophet Mohammad “PBUH” and on his kinsman and disciples, and after…… This research dealt with the legitimate presumption of the grammatical rule at Ibn Ashour, in which the presumption was defined in the language and the terminology and at the scholars of Sharia beginning with Surat Al-Fatiha and finished by Surat Al-Kahf and arranging the search by the Sections of grammar derived from the books of old and modern grammar and books of interpretations and hadiths ,and translations books and this is all progressing the Book of God Almighty and I have reached the search for several results most importantly: - That the legitimate legitimacy of the grammatical rule is what requires the cause of that judgment. - The grammatical rule imposed by the presumption is the initial sentence in the weights of Ibn Ashour. - The research proved that the building of (doubt) of the God Almighty: “that there is no doubt about “with malaise in that legal presumption accompanying the verse. - The search proved that (associates) of the God Almighty “decide upon your affair with your associates” must be erected because it did not reply in the Holy Quran elevated. - The search proved that (Arabic judgment) of theGod Almighty “And as such We have sent it down an Arabic judgment” is Arabicized adverb because the types are intended expenses and obligations. - The search proved that become filled with terror of the God Almighty: “become filled with terror “ is Arabicized adjective converter of subject because the owners of the cave are meant. - The research proved that the L of the God Almighty: “the last of them will say of the first”of reasoning because the discourse is directed to Allah Almighty. - The search proved that God Almighty: “ will fill Gehenna (Hell) with jinn and people all together. the people of heaven and the people of the hill are confirmed. - The search proved that (or) of the God Almighty: “to be killed or crucified, or have their hand and a foot cut off on opposite sides” the division is not for the fermentation.

A Note on Presumptions with Sequential Litigation

This note extends the Bernardo, Talley & Welch (1999) model of legal presumptions to study situations where litigation efforts are spent sequentially rather than simultaneously. The equilibria of the litigation stage are presented as functions of the underlying presumption. The equilibria and comparative statics are shown to be qualitatively similar to those of the simultaneous version. However, sequentiality allows the principal to pre commit to a litigation strategy, and thus possibly preempt any litigation effort whatsoever by the agent.

Shared Parenting After Parental Separation: The Views of 12 Experts

ABSTRACTThis article summarizes panel discussions that took place at an international conference on shared parenting (SP) held in May 2017. The panelists were internationally recognized experts on the legal and psychological implications of custody arrangements and parenting plans. Seven broad themes dominated the discussions: whether or not there was persuasive evidence that SP provides real benefits to children whose parents separate; what specific factors make SP beneficial; what symbolic value SP might have; whether there should be a legal presumption in favor of SP, and if so, what factors should make for exceptions; whether high parental conflict, parents’ failure to agree on the parenting plan, or dynamics of parental alienation should preclude SP; and what should happen when a parent wants to relocate away from the other parent.

Arguments Against a Presumption of Shared Physical Custody in Family Law

ABSTRACTThe introduction of the “best interests of the child” standard as a legal presumption in family law in the 1970s signaled an important transition away from a maternal preference standard in child custody disputes, toward a recognition of the centrality and importance of both parents in the lives of children after parental separation. Paradoxically, this reform resulted in an increase rather than decrease in court-determined maternal sole custody. Despite robust empirical evidence in support of shared parenting, a gender convergence in child care roles, and increasing public support for shared parenting, the idea of shared parenting as a legal presumption has been met with skepticism and resistance among some legal and mental health professionals. This article traces the evolution of arguments against shared parenting since the concept was first introduced, from the early 1970s until the present day.

LOYALTY REBATES AND ABUSE OF DOMINANCE

THE recent judgment of the Court of Justice in Intel v Commission (Case C-413/14 P, EU:C:2017:632) deserves a cautious welcome for signalling a move to a more economics-based approach to the assessment of loyalty rebates under Article 102 TFEU, and for modulating the rigid legal presumptions that have characterised nearly four decades of case law. Yet it also represents a missed opportunity to provide a comprehensive analytical framework for one of the more unsatisfactory areas of EU competition law.