Procedural Law Research Articles

The role of legal constructions in the enforcement of substantive and procedural law

In the modern legal system, legal structures play an important role in ensuring effective enforcement of both substantive and procedural law. That is why the author has selected an appropriate source (scientific and normative) base, and has formed the goal and objectives that fully reveal the subject matter of the study. The author emphasizes that substantive law regulates basic social relations by establishing the rights and obligations of subjects, while procedural law provides mechanisms for their actual implementation and protection. Legal constructions are a legal instrument which allows to organize legal provisions, ensuring their clarity, universality and unambiguous implementation. In addition, the author examines the internal construction of a legal provision and a legal prescription, and the correlation of these legal phenomena. The author emphasizes such an important characteristic of the legal construction of a legal provision as a genetic link, which is used to further form legal institutions, sub-branches and branches of substantive and procedural law. The article focuses on the analysis of the role of legal constructions of substantive and procedural rules of law in the process of law enforcement. The author separately considers the issues of their creation, application and impact on the efficiency of legal regulation. The author examines the interaction of substantive and procedural law through the prism of legal constructions of legal norms, which allows identifying key aspects of their systemic effect in the legal system. The work contains examples from the current legislation, in particular, the Civil, Civil Procedure Codes of Ukraine and other legal acts. The author examines the case law which demonstrates the practical value of the issue raised and the need for proper construction of legal provisions at the stage of law-making, which results in their further implementation. The author characterizes the impact of legal constructions on legal practice and their role in ensuring legal stability and predictability. Based on the study, the relevant conclusions were formed.

Historical outline of the development of the principle of good faith in civil procedure in Germany and France

The article analyzes the concept of good faith on the example of its development in civil proceedings in Germany and France. The author traces the relationship between the good faith of Roman civil procedure and the good faith of continental European countries, which was developed through the reception of Roman law. he author examines a number of sources of the so-called barbarian law in the context of good faith and its negative manifestation - bad faith in procedural communication and counteraction thereto. The author defines good faith as a condition for proper procedural behavior in the sources of law of the Holy Roman Empire of the Germanic nation and traces the history of the term Treu und Glauben. The author examines the concepts of correlation between the Roman term bona fides and the German term Treu und Glauben, which has become a general principle of various branches of law, including civil procedure law. The author examines the presence of the good faith principle in the modern German Code of Civil Procedure. The author also analyzes the concept of the formation of the principle of good faith in civil proceedings in France, for which purpose the medieval rules of customary law contained in such legal sources as the Coutumes Beauvais are studied. Special attention is paid to an important source of French procedural law of modern times - the Ordinance of Louis XIV of 1667 (Louis Code), which was the basis for the Civil Procedure Code of Napoleon of 1806 and whose provisions contained measures to counteract the abuse of procedural rights, and in some cases the term good faith as a measure of exemplary procedural communication. The author also reviews the provisions of the current French Code of Civil Procedure, which entered into force on January 1, 1976, where the principle of good faith is applied both as a counteraction to unfair procedural behavior and as a standard of procedural behavior which provides for the proper performance of duties and exercise of rights. The author determines that the principle of good faith is primarily found in substantive law, both in Germany and France, from where it is integrated into procedural law.

Suspension of execution (action) of a court decision at the stage of cassation review: separate issues of law enforcement

The presented article is devoted to the discussion of problematic issues of the application of the procedure of suspension the execution of the decision or suspension its effect at the stage of cassation review. It is claimed that the outlined procedure serves as an important guarantee of the protection of the rights, freedoms and interests of the participants in the process in case of an illegal court decision, and its basic purpose is to prevent the violation of the rights, freedoms and legally protected interests of the person who filed a cassation complaint and other persons participating in the case, if such consequences may occur in connection with the implementation (action) of the contested court decision. Based on the analysis of the practice of the application of certain norms of the procedural law by the Supreme Court when considering requests to suspend the execution (action) of a court decision, it was concluded that the specified procedure has signs of exclusivity and requires the applicant to pay due attention to justifying the existence of grounds for the court to take appropriate measures. The latter is a meaningful aspect of this procedure and involves not only the requirement of qualitative argumentation by the applicant for his petition, but also the submission by him of a sufficient amount of proper and admissible evidence, which testifies to the appeal of the contested decision to enforcement (for example, resolutions on the opening of executive proceedings, resolutions on the commission of certain executive actions, etc.), as well as other circumstances, the establishment of which will allow the court of cassation to be convinced of the existence of objective risks to assume that failure to take measures to suspend the execution (action) of the court decision will affect the impossibility or make it difficult to restore the violated right of the applicant, in the event of cancellation in subsequent Supreme Court of such a decision. Along with this, within the scope of the study, a some of inconsistencies between individual provisions of Articles 394 and 436 of the Civil Procedure Code of Ukraine were identified, and proposals were made to eliminate them.

The principle of ensuring the right to appellate review of a case and, in cases determined by law, to cassation appeal of a court decision as a fundamental (constitutional) principle of Ukrainian justice

This publication is aimed at studying the principle of ensuring the right to appellate review of a case and, in cases specied by law, to cassation appeal as a fundamental constitutional principle of Ukrainian judicial procedure, and at identifying the issues of its interpretation and implementation within the framework of civil proceedings, and at formulating conclusions and proposals aimed at resolving the identied issues and contributing to the improvement of judicial practice. The paper 1-rst denes the signicance of this principle for achieving the tasks of civil procedure and analyzes its place in the system of other principles of civil procedure. It is found that the principle of ensuring the right to appeal a case and, in cases dened by law, to cassation appeal does not compete with other principles of civil procedure, but organically complements them, allowing to correct judicial errors made, thereby guaranteeing the principles of legality, objective truth and others. The analysis of the name of the studied principle revealed a legislative narrowing of its content, used by the indication of the possibility of appealing a «court decision», while other legislative provisions and the practice of civil procedure indicate the possibility of appealing rulings and orders of the court. The e-ectiveness of the legislative approach to the comprehensive nature of the appeal is substantiated, with the exclusivity and extraordinary nature of the cassation review of court decisions that have entered into legal force and the e-ectiveness of existing mechanisms for implementing this provision (a wide range of subjects of the appeal, limitation of the cassation appeal for certain categories of cases, mandatory preliminary appeal of the court decision, etc.). A certain problem was revealed during the analysis of the civil procedure law norm regarding the denition of the objects of appeal in the aspect of its content presentation through the prism of its consistency with the constitutional norm (64 of the Constitution of Ukraine), according to which the limitation of constitutional rights and freedoms of a person and citizen should be provided for by legal norms, therefore, through the prism of consistency with this provision, it would be more logical to establish a prohibition on appeal in relation to each individual judicial act. Legislative work aimed at eliminating certain imperfections in the legal regulation will contribute to a more e-ective implementation of the principle of ensuring the right to appeal a case and, in cases dened by law, to cassation appeal in the practice of civil proceedings.

Правовые особенности включения сведений в реестр недобросовестных поставщиков в ходе осуществления корпоративных закупок в условиях санкционной реальности

The author of the article analyzes the legal aspects of including information in the register of unscrupulous suppliers, especially as a result of the unilateral refusal of a corporate customer under the influence of foreign sanctions to fulfill the contract. Based on the analysis of the regulatory framework, law enforcement practice, doctrinal positions, as well as statistical data, the article attempts to analyze the mechanism of implementation of the introduced regulatory measures to protect the interests of customers under sanctions pressure. It is suggested that these mechanisms will be aimed at deterring and minimizing the negative effect of sanctions on corporate customers. At the same time, the author points out the shortcomings of the amendments made to the Procurement Law, including those expressed in the lack of awareness of the procurement participant about the existence of sanctions restrictions on the customer, as well as the lack of proportionality of the measure of responsibility applied to the supplier to the extent of harm caused to the customer.

The Contestation of Legal Foundations in the Resolution of Islamic Economic Disputes in Religious Courts

Prior to the issuance of Supreme Court Regulation No. 2 of 2008, judges in Sharia economic dispute cases primarily relied on legal sources from kutub al-turāṡ (classical fiqh texts), including those pertaining to fiqh al-qadā’ (jurisprudence on adjudication). However, following the implementation of this regulation, some judges have continued to incorporate the Civil Code in their legal reasoning. This article seeks to examine the legal framework for resolving Sharia economic disputes in Indonesia. The theoretical foundation applied by the author is Lawrence Meir Friedman’s legal system theory. This study employs a normative legal approach to explore the legal system governing Sharia economic justice in Indonesia’s Religious Courts. It examines decisions from the Religious Courts in Purbalingga, Banyumas, and Purwokerto, focusing on rulings made both before and after the issuance of the Supreme Court Regulation on the Compilation of Sharia Economic Law (KHES), as well as five decisions from 2018-2019. The study’s findings reveal that the legal framework for Sharia economic dispute resolution in Indonesia has adequately addressed community needs, with the Religious Courts holding exclusive jurisdiction over these matters. However, there is an ongoing contestation between Islamic legal sources and civil law, which is rooted in Dutch law, in the decisions analyzed. Moreover, the absence of a Compilation of Islamic Economic Procedure Law based on Islamic Law has contributed to the suboptimal implementation of legal substance and culture. As a result, according to Friedman’s legal system theory, the legal framework for resolving Islamic economic disputes has not yet functioned effectively from the perspective of Islamic law.

Legal Certainty The Obligation To Make Administrative Efforts Before Filing A Lawsuit In The Administrative Court

In accordance with the provisions of Article 48 of Law Number 5 of 1986 concerning the State Administrative Court which has been last amended by Law Number 51 of 2009 concerning the Second Amendment of Law Number 5 of 1986 concerning the State Administrative Court ("Peratun Law") which states that not every State Administrative Decision (beschikking) as the object of the State Administrative dispute can be directly sued through the State Administrative Court, because if there are administrative remedies, the state administrative dispute must be resolved first through administrative efforts before being resolved through the State Administrative Court. This research uses a qualitative normative method, which is a process to find a legal rule, legal principles, and legal doctrines to answer the legal issues faced. The result of this study is that Sema No. 1 of 2017 has been affirmed through Perma No. 6 of 2018, thus according to the Court, as long as the administrative effort is intended to file a lawsuit to the PTUN or at least related to the procedural law of the PTUN, the word "can" must be interpreted as "mandatory" to take administrative efforts first. Then the PTUN plays a role in ensuring that law enforcement occurs effectively, by paying attention to the principles of justice and legal certainty that are the basis for every decision taken, and the PTUN plays the role of a court that has the authority to resolve state administrative disputes after the administrative efforts have been passed, in accordance with applicable regulations.

The Procurement Law in Albania: Effects in the Albanian Economy and State Budget

The purpose of the study is to analyze and discuss Law no. 162/2020, "On the procurement public", which is a law harmonized and integrated with the directives of the European Union (2014/24, directive 2014/25 and directive 89/665 EEC, 92/13/EEC on legal remedies and administrative review) and, for this, it is necessary to analyze the effects of this Law in the Albanian economy as well as in the state budget. Also, based on the data from public institutions, possible recommendations will be given to further align the Albanian procurement legislation with the relevant EU acquis. In addition, the problems arising during the implementation of this law in practice by contracting authorities and economic operators will be analyzed, with the aim of facilitating the procurement process for all parties and the regulatory authority in the field of public procurement through the further transposition of EU directives as well as addressing ambiguities and problems.

The Value of Procedural Policy: Axiological and General Legal Aspects

This article examines the problems of identifying the values of procedural policy from theoretical and applied perspectives. Rooted in the general axiological principles of law, the values of procedural law guide law enforcement toward achieving positive outcomes by effectively resolving conflicts and disputes among the parties of legal procedures. It was shown that the values of procedural policy are best described by the axiological approach, which highlights its focus on meaningful, effective, rational, fair, and reasonable actions that align with the higher purpose and value of law. The conclusion was made that, in accordance with the strategies of legal axiology, procedural policy should be based on the doctrinal principles of legal science to enhance the efficiency of legal activities and uphold the value of lawmaking and law enforcement, including the administration of law, within today’s legal framework. The value of legal procedural policy was found to lie in setting new axiological standards, primarily associated with the dynamic development and use of new information technologies in legal practice. The value of jurisprudence in systematizing the legislative process and law enforcement was explored, thereby affirming the axiological nature of legal procedural policy.

Criminal Liability by the Company in the Implementation of Occupational Safety and Health Management System

The purpose of this research is to find out how companies can be held accountable for their violations of the occupational safety and health management system. This research was conducted qualitatively using empirical data and legal sources of legislation. This research was conducted at the South Sulawesi Provincial Manpower Office and BPJS Employment Makassar City Branch. The results show that businesses can be criminally liable if they commit errors or omissions, such as not reporting work accidents, not registering employees in the BPJS employment social security program, and not having OHS certification for employees and operators. Criminal liability accepted by organisations includes imprisonment. In addition to criminal penalties, companies may also face administrative reprimands or fines. If companies do not implement an Occupational Safety and Health Management System, they must receive a warning. If the company does not follow the warning, the Indonesian Law No. 8 of 1981 on Criminal Procedure Law will be applied, in accordance with the provisions in PERMA No. 13 of 2016 on Procedures for Handling Criminal Cases by Companies. Companies that do not implement the Occupational Safety and Health Management System will be subject to imprisonment for a maximum of 3 months according to Article 15 of Law No. 1 of 1970 on Occupational Safety and Article 186 of Law No. 13 of 2003 on Labour.

Perluasan dari Alat Bukti Tertulis dalam Perspektif Hukum Acara Perdata

The rapid development of information technology, such as emails, instant messaging, and digital documents in electronic transactions, is transforming traditional methods of evidence presentation in civil court contexts. Therefore, it is necessary to conduct a study on the legality and relevance of electronic evidence within the framework of existing legislation, as well as how courts assess and accept such evidence. The research findings indicate that although electronic evidence in the form of electronic information and/or documents is recognized as valid legal evidence, challenges remain in its application, including issues of authenticity and the integrity of the submitted electronic data. Guidelines are needed to demonstrate the evidential strength of electronic evidence so that it can be accepted by the parties involved and provide clarity to judges in admitting electronic evidence as part of the evidentiary process. Furthermore, regulatory reforms are necessary to optimize the use of electronic evidence and ensure fairness in legal proceedings. These papers are expected to contribute to developing civil procedural law in the digital era.

Contract award criteria in public procurement procedures – The possibility of improving the situation of society from the perspective of the European Union and Poland

Background Public tenders are vital for a country’s GDP and citizens’ quality of life, enabling public administration to achieve various goals. Developing and developed countries allocate over 10% of their GDP to public procurement. This highlights the significant societal support public tenders can provide, making it important to consider how they can further benefit society. Policy and implications Public procurement can achieve policy objectives and benefit society by selecting tenders based on criteria beyond price, such as economic advantage and social benefits. This approach, endorsed by EU directives since 2014, encourages innovation and socially responsible practices. Contracting authorities in the EU can use social, environmental, and qualitative criteria to determine the most advantageous offers. Poland’s Public Procurement Law (PPL) allows contract award criteria based on quality and price, including social aspects. Contracting authorities can specify criteria like employing marginalized groups, though these criteria often face scrutiny and legal challenges. Non-price criteria aim to enhance competition and achieve social, environmental, and economic goals. Recommendations EU and Polish laws permit and encourage using social aspects as contract award criteria in public procurement. However, contracting authorities must analyze priorities, risk balancing, time constraints, and departmental coordination to effectively implement these criteria. This approach can improve the social situation and support specific groups. Conclusions Public procurement significantly influences a country’s economy and quality of life, with EU and Polish laws allowing social criteria in contract awards. Directive 2014/24/EU supports tenders based on economic and social benefits. Poland’s PPL aligns with this, emphasizing marginalized group employment. Effective implementation fosters job creation, social integration, and improved living standards.

Review of the new facts or new news contained in article 321 of the Chilean Civil Procedure Code

This paper aims to address the procedural figure of new facts or newly discovered events, recognized in some continental Procedure Codes. In this context, we will examine certain historical sources that influenced its modern legislative reception, intending to understand the institution’s meaning, which is usually studied from an evidentiary perspective, with Chilean Civil Procedural Law serving as an example. In contrast to the above, our manuscript will assert that the new facts or newly discovered events , contained in article 321 of the Chilean Código de Procedimiento Civil, operate as a legislative mechanism aimed at incorporating new factual background, expanding the subject matter of the trial, and breaking the fiction of immutability of the process derived from the general principle of the doctrine of lis pendens, which justifies the application of the institution to the Chilean labour process.

KẾT LUẬN ĐỊNH GIÁ TÀI SẢN TRONG LUẬT TỐ TỤNG HÌNH SỰ VIỆT NAM VÀ MỘT SỐ KIẾN NGHỊ HOÀN THIỆN

The 2015 Criminal Procedure Code introduced asset valuation conclusions as a new type of evidence, crucial in resolving criminal cases. This article examines the criminal procedure stipulations and identifies current legal shortcomings concerning asset valuation conclusions, including their types, content, format, and the rights of participants regarding these conclusions. From this analysis, the authors propose recommendations to enhance the Vietnamese criminal procedure law, particularly in reforming evidence sources like asset valuation conclusions.

Judicial Study: Parties' Opposition (Partij Verzet) in Proceedings to Execute Land Ownership Rights Under Civil Procedure Law

Court decisions that have legal force must be complied with, and execution carried out if the losing party does not voluntarily comply with the judgment. Issues arise when the losing party appeals or takes other legal actions, delaying execution and creating legal uncertainty. Execution is applicable only to condemnatory judgments and is often obstructed by respondent's resistance, a legal challenge from the party involved in the case. The researcher highlights three cases of legal resistance efforts: the South Jakarta District Court decision number 518/Pdt.G/1999/PN Jkt.Sel, Kendal District Court decision number 20/Pdt.Bth/2021/PN Kdl, and Kendal District Court decision number 9/Pdt.Bth/2022/PN Kdl. This study employs a normative juridical method, examining descriptive-analytical literature, and utilizes a qualitative juridical approach in analysis. The research reveals discrepancies between legal certainty theory and judicial practice, where cases may not align with facts or legal standing, leading judges to reject such requests. The study concludes that respondent's resistance is a legal recourse available to the executed party against execution, which does not automatically suspend execution unless there are clear and accepted grounds recognized by the court. The Indonesian Civil Code (HIR) and Civil Procedure Law (RBg) provide legal certainty and protect the rights of those aggrieved by court decisions through the mechanism of respondent's resistance.

Challenging Legal Standing in Climate Change Litigation

Abstract Associations and private individuals, groups of young people and groups of senior women, farmers and workers, present and future generations, mayors and whole towns, trees and woods, water and rivers: the list of claimants in climate change litigation is wide and varied. Indeed, since everyone and no one in particular has the right to a healthy climate, determining claimants’ legal standing in climate disputes is of paramount importance. Rules of proceedings are sometimes of help, providing ad hoc standing for public interest litigations. In other cases, however, judges have to manage the claim according to the traditional rules of proceedings, which generally require claimants to demonstrate their direct and personal concern. Thus, since legal standing is one of the first hurdles that activists must overcome to succeed in climate disputes, procedural law may provide judges with the grounds for meaningful decisions as well as a way to avoid ‘political’ decisions. In this paper, after analysing why civil litigation is proving to be the only suitable path for climate activists in the Italian legal order, I therefore intend to address four key ‘standing-orientated’ climate cases and namely the Dutch case of Urgenda, the Canadian case of ENvironnement JEUnesse, the Belgian case of Klimaatzaak, and the Swiss case of KlimaSeniorinnen. Having completed this analysis, and returning to the Italian case, the possible outcomes related to the claimants’ legal standing are then explored, both with respect to the associations and the individuals involved in the case.

Harmonization of Legal Systems: Analysis of the Relationship between the Principle of Restorative Justice and Criminal Procedure Law (Kuhap) in Indonesia

Harmonization of Legal Systems: Analysis of the Relationship between the Principle of Restorative Justice and Criminal Procedure Law (Kuhap) in Indonesia

Climate Change Mitigation through Civil Procedure? Justiciability in Two Nordic Climate Cases

Abstract Although the phenomenon of climate change litigation has flourished in certain European countries, it has so far been limited in the Nordic countries. A reason might be that the Nordic countries do not have a strong tradition of judicial review or rights-based litigation. The role of the courts was long considered to be less about controlling that the legislature lived up to constitutional and international obligations, than ensuring the realisation in practice of the substantive law, by resolving concrete disputes. Through the analysis of issues of justiciability in one Norwegian and one Swedish climate case, this article discusses the role of the judiciary in climate cases. It is argued that the cases illustrate a tension between on the one hand the right to access to a court and judicial review, and on the other, a more limited and traditional understanding of the role of the court, which focuses on the resolution of concrete disputes. At the same time, the cases are considered to indicate that climate change litigation can bring about change in the judicial interpretation of procedural law.

The Dutch Preliminary Ruling Procedure in the Light of the European Directive on Representative Actions

Abstract Dutch civil law allows courts of first and second instance to refer preliminary questions to the Supreme Court. In mass claim disputes there may be a concurrence between the safeguards of the preliminary ruling procedure and the protection provided by Directive 2020/1828 on representative actions for the protection of the collective interests of consumers. This working paper addresses several issues regarding this concurrence. These include legal certainty, the influence of non-parties, the costs and the duration. The authors come to the conclusion that the preliminary ruling procedure can be very useful in mass claim disputes, albeit that both the lower courts and the Supreme Court need to align their practice more closely with the safeguards of the Directive on a number of points. These findings may be relevant for other European jurisdictions that recently introduced a preliminary ruling procedure, or that are about to insert a preliminary ruling procedure in their civil procedural law system.

The Role of Digital Forensics in Criminal Investigations: An Analysis of Electronic Evidence in the Indonesian Legal System

Research on the use of digital forensic evidence in the process of investigating criminal acts, especially those carried out by the Police with their legal structure capabilities, aims to find out and analyze the extent to which evidence produced through digital forensics plays an important role in the process of proving criminal acts, the results of which become electronic evidence that has the strength of evidence in the applicable criminal procedural law. The type of research is normative (doctrinal), namely research that views law as building a system of norms. Digital forensics is an important instrument that helps investigators carry out research and investigation tasks, and it is an absolute requirement that must be met so that electronic documents can be used as evidence from the start of investigations, inquiries, prosecutions, and trials. The role of digital forensics in uncovering a criminal case starts from the preliminary stage, where investigators begin to collect evidence and electronic evidence assisted by one or more digital forensic experts. Digital forensics from the investigation stage is used to find material truth in every process of proving a criminal act.