Procedural Law Research Articles

The principle of stare decisis in the judicial proceedings of Ukraine and legal systems of the world

It The article analyses the origins and essence of the stare decisis principle, examines its specific features and formulates its concept. It is substantiated that the principle of stare decisis is a primary principle of procedural law by its structure, which has a cross-sectoral nature and is applicable in court proceedings regardless of the jurisdiction (administrative, criminal, civil, etc.) of the court, addresses the judiciary (not other participants in the court proceedings) with a mandatory requirement to adhere to the legal position formulated in previous relevant court decisions in new court decisions in order to ensure the unity and consistency of judicial practice, its certainty and predictability, which makes it possible for the subjects of legal relations to adjust their legally significant actions (activities) in the future. The authors makes a comparative analysis of the principle of «stare decisis» in the AngloAmerican and Romano-Germanic legal systems. It is proved that this principle in the Anglo-American legal system is interpreted in the sense of «to stand on what is set by the court», and in the Romano-Germanic legal system – «to stand on what is set by law». The authors argues that a court decision is always related to the resolution of a dispute, but in the Anglo-American legal system, a court dispute is related to law, and in the Romano-Germanic legal system, it is related to a violation of law. The effect of the principle of stare decisis in the Anglo-American legal system is manifested in the rule: «precedents are not overruled», even if they are outdated, they still remain in force. In fact, the same rule applies in the Romano-Germanic legal system, because the legal positions set out in the decisions of the Supreme Court are also not cancelled, but rather «departed from» by the court. In the Anglo-American legal system, the principles of law are embodied («live») in judicial doctrine and precedents, which activates judicial rule-making, while in the Romano-Germanic legal system, the principles of law are objectified in legislation, so the principles of law actually become legislative norms, which reduces the discretion of judicial discretion in this legal system. The authors concludes that the principles of law do not adapt to social relations; on the contrary, legislative norms are developed, grouped and adjusted in accordance with the requirements and content of the principles of law. Key words: stare decisis principle, judicial proceedings, principles of law, legal systems of the world, constitutional mechanism of the state, constitution of the state, sources of law, Roman law, judicial precedent.

Analysis of the difference of the legally relevant facts of the indicator facts

Current jurisprudential positions have exposed a series of errors incurred within the new accusatory criminal system led by the Attorney General's Office, specifically in the construction of the Legally Relevant Facts, since it does not conform to the expected and indicated assumptions. by law and other rules of criminal procedure. These failures are directly related to effects on due process, in such a way that it is the responsibility of all levels of society and especially the judicial branch to deal with mistakes. That is why, through a general analysis of all the aspects that frame the criminal technique of the Legally Relevant Facts found in the Political Constitution of Colombia, in the jurisprudence and other laws, it was possible to identify such failures, their consequences, but also formulated a series of recommendations that are expected to serve to reduce the risk of the duration of rights and become a point of reference for similar investigations

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.

Favoritism and Public Procurement Performance at Mbarara City, Uganda

This study was about favoritism and public procurement performance in Uganda using the case Mbarara City. Favoritism was assessed using two dimensions that included price-preference and bidder-preference and the way they affected public procurement performance in Mbarara City. The research design was cross-sectional involving the utilization of a quantitative approach. The analysis involved inferential statistics (Spearman correlation, coefficient of determination and regression). The results showed the strong influence of favoritism on the conduct of public procurement performance whereby more favoritism contributed to poor public procurement performance and less favoritism contributed to better public procurement performance. It was recommended that City councils should ensure adherence to procurement laws in order to curb political and public officers’ influence that leads to favoring certain people for procurements, as this will improve public procurement performance.

Ratio Decidendi Penjatuhan Putusan Bebas (VRIJSPRAAK) Dalam Pemalsuan Akta Otentik Oleh Notaris: Studi Putusan Nomor: 1216/Pid.B/2019/PN Jkt.Tim

Corruption is an extraordinary crime that causes state losses. Corruption is not only committed by individuals, but also by corporations. Problems that often arise in criminal acts of corruption committed by corporations are related to procedural law, especially related to proving corporate wrongdoing. In this regard, the author is interested in analyzing the evidence related to corruption committed by corporations in Decision No. 81/Pid.Sus/Tipikor/2018/PN.Jkt.Pst. This study discusses the problem of proving corruption committed by corporations and the judge's legal considerations in imposing a sentence on the Defendant. This study uses a normative juridical approach withresearch specifications prescriptive. This study also uses secondary data obtained through literature and documentaries and described systematically. The results of the study indicate that the criminal acts of corruption committed by corporations in Decision Number: 81/Pid.Sus/Tipikor/2018/PN.Jkt. evidenced by the suitability of evidence in the form of witness statements, expert statements, letters and statements from the defendant which proves that the defendant has fulfilled all the elements in the First Indictment, so that it has met the minimum limit of evidence, namely at least two valid pieces of evidence, the judge's conviction is obtained. that the defendant PT NKE was guilty of a criminal act of corruption. The basis for the judge's legal considerations is by taking into account the elements of the Articles of the First Indictment that have been fulfilled, namely by fulfilling the minimum limit of evidence and obtaining the judge's conviction, for which the Panel of Judges imposes a criminal sentence in the form of a principal penalty in the form of a fine and additional punishment in the form of payment of replacement money and the revocation of the defendant's rights to participate in the auction of government goods/services procurement.

Effect of Supplier Appraisal on Performance of Construction Projects of Counties in Lake Region Economic Bloc, Kenya

Procurement Laws and Regulations 2015 are a yard stick that directs how buying of goods, services, and works by governments and state-owned businesses should be conducted (Thiankolu, 2019). However, there exists an absence of compliance to these laws as envisaged by its framers which results to bias and uncompetitive bidding, evaluation and award of contracts process something that compromises the effectiveness of the project's accomplishment (Kagume & Wamalwa, 2018). The primary objective relating to this research entailed investigating the effect of supplier appraisal on performance of construction projects of counties in Lake Region Economic Bloc, Kenya. The study adopted a descriptive research design with stratified random sampling technique being applied to select a sample of 342 respondents from a total population of 2346 county officials that include finance and procurement officers. A survey instrument was utilized for gathering data, using questions that were both open and closed-ended. The survey instrument was piloted in Marsabit County. It was conducted to ensure that the instrument is both valid and reliable. SPSS was used to perform analysis of data. Supplier appraisal was established to have a positive and significant correlation on the performance of counties in Lake Region Economic Bloc with a co-efficient of correlation R value of 0.816 and P<0.05. Supplier appraisal with a coefficient of determination (R2=0.700, P<0.05) could account for 70% of variation in the performance of construction projects if other factors were to be held constant. Specifically, when Supplier appraisal increases by a single unit, there will be a subsequent increase in performance of construction projects by 0.885 units (β1=0.885, P<0.05). This suggests a positive and strong correlation between supplier appraisal and performance of construction projects and thus the study suggests that evaluating suppliers using technical, financial, and legal criteria might help construction projects succeed in Kenya's Lake Region Economic Bloc.

Norms of administrative and procedural law (to the discussion of their structure and constituent elements)

The article analyzes scientific approaches to determining the structure of administrative- procedural norms and formulates the author’s approach to solving the specified scientific task. The specificity of the structure of the norms of procedural law in comparison with substantive norms is noted. It is emphasized that the hypothesis is an element of the structure of the administrative- procedural norm, which contains an indication of legal facts, the occurrence of which is associated with the «start» of the action of the disposition. It is also emphasized that the absence of a hypothesis as a structural element of the administrative- procedural legal norm makes its effectiveness impossible, or even its implementation at all. It is argued that the disposition of the administrative-procedural norm is a set of rights and legal obligations, a rule of conduct, according to which the participants of administrative- procedural relations act in the presence of the hypothesized circumstances. The disposition may contain options for choosing behavior for the participant in the proceedings, providing him with an alternative in his legal behavior during the consideration of the case and decision-making. In other words, the disposition fully reveals the potential of the dispositive method of legal regulation of the relevant legal relations. It is noted that among the elements, along with hypothesis and disposition, it is expedient to outline incentive as an element of the norms of administrative and procedural law, which establishes positive (incentives, guarantees) or negative (procedural coercion, restrictions, including warnings; removal from the courtroom; temporary removal evidence for examination by the court; pretext; fine; refusal of a procedural act, which was adopted by this procedural norm; recognition of evidence as improper, which was obtained in violation of the law; leaving the statement of claim without consideration or movement, etc.) legal consequences of implementation/non-implementation of its prescriptions.

Some conceptual and legal questions of data gathering in criminal cases

Aim: The purpose of this study is to present some general questions and problems of data gethering in criminal cases in aspect of criminal procedure law and forensic sciences. Methodology: Presentation, analysis, evaulation and drawing conclusions of legal rules, studies, papers, and textbooks in the subject area, both in Hungarian and Anglo-Saxon literature. Findings: Data gathering is a well-known method in both forensic sciences and criminal procedure law. However its meaning is different in these two fields of criminal sciences. Before the current code of criminal procedure in Hungary the meaning and content of data-gathering was similar in forensic science and in legal rules. But the new code has integrated the instruments of crime detection purposed secret information-gathering appliapble before the starting of investigation, and made them criminal procedural instruments under the name of covert instruments. Besides that the new code significantly changed the system and legal rules of „open” data-gathering methods. Nowdays some data-gathering methods only aply as covert instruments with all its strict conditions, consequences and formal rules. In my study first I try to withdraw the conceptual borders of data-gathering and outlines some historical backgrounds. After it I explain the conception and content of data gathering in criminalistic literature, then I examine the rules of data gathering in criminal procedure law. In the end of my paper I summarize the problems of this conceptual dualism. Value: The (open) data gathering in criminal cases as a subject has not been examined recently, so this study can draw attention on the problems of the latest legal regulation and the extension and modernization of criminalistic recomendations.

Shaping EU policy in regional parliaments: a configurational analysis of the Posted Workers Directive in Germany

ABSTRACT Since the Lisbon Treaty, research on parliaments in EU affairs turned to the regional level, but few studies ask how subnational legislators engage with the substance of EU policies. We examine this topic based on statements by the parliamentary groups in all German Landtage concerning the reform of the Posted Workers Directive, which became particularly salient when the European Court of Justice liberalized wage clauses in state procurement law. Under which conditions did the parliamentary groups support the reform? Our configurational analysis reveals that a left party identity is the only necessary attribute for support, and that it becomes sufficient in conjunction with the group being in opposition or with state policy being affected by European jurisprudence. We find little evidence that the local economic context mattered. The results partly confirm research on the Europeanization of state procurement law but highlight the importance of policy shaping from below.

Advancing criminal justice through mediation: analyzing the integration of mediation in Emirati criminal legislation

Criminal mediation is viewed as a promising alternative to traditional judicial procedures for resolving criminal disputes, offering a novel approach to alleviating burdens on the judicial system. This study examines the integration of mediation into Emirati criminal legislation, focusing on its potential to improve dispute resolution outcomes and reduce judicial workload. The UAE law has incorporated criminal mediation in the new amendment to the criminal procedures law by Federal Decree-Law No. 38 of 2022. This research aims to elucidate the provisions of criminal mediation and how it is organized within the UAE legal system. Employing an analytical descriptive methodology, the study explores the legal frameworks and procedural nuances of criminal mediation. It demonstrates how it can significantly mitigate the adverse effects on affected parties and decrease the recurrence of criminal behavior. The study recommends establishing a specialized training program for legal mediators, designed to equip them with the necessary skills to effectively handle diverse criminal cases, ensuring that mediation processes are conducted with the highest standards of justice and efficiency. Implementing such training programs would enhance the professionalism of criminal mediation and increase its success rates, contributing to a more effective and humane criminal justice system.

TEORI EFEKTIVITAS PADA PROSEDUR PEMERIKSAAN PERKARA DI PENGADILAN TATA USAHA NEGARA

The purpose of this research is first to discover the development of case examination procedures in the current State Administrative Court. Second, to determine the current case examination procedure in the State Administrative Court associated with the Theory of Effectiveness. The type of research used is normative research which places the law as a system of norms, with descriptive analytical methods, namely by describing existing problems and analyzing them. The results of this study show First, there has been an expansion of the competence of the State Administrative Court in receiving, examining & adjudicating a case. The State Administrative Court Law that has not regulated this has resulted in a procedural law vacuum so that the Supreme Court in the 2011-2017 timeframe issued its legal products in the form of Supreme Court Regulations, namely the State Administrative Court Law which previously only regulated 3 types of case examination procedures, namely ordinary examination, simple examination, and rapid examination, currently there are several new case examination procedures regulated in 5 Supreme Court Regulations. Second, in terms of one of the factors in the Theory of Effectiveness, namely the legal factor itself (the law), this factor states that to determine whether a written law functions or not depends on the rule of law itself, one measure of the success of this factor is that the existing rules regarding certain areas of life are quite synchronous / there is no horizontal conflict & hierarchy, but the current main regulation, namely the State Administrative Court Law, in fact has not been synchronised with other regulations issued by the Supreme Court in the form of Supreme Court regulations which aim to fill the void of procedural law, especially the law of examination.

Trends in the combination of individual and collegial in domestic criminal and civil, arbitration, administrative proceedings

All types of modern litigation are characterized by a combination of individual and collegial principles. The commonality of the concept of justice determines the conceptual universality of most institutions of criminal, arbitration, civil and administrative proceedings. It follows from this that the criteria and principles for determining the ratio of collegial and individual are or should be approximately the same in all types of processes. Recent years have been marked by an active reform of the rules on the composition of the court in these types of justice, but the novelties are not always uniform or at least coordinated. The author attempts to identify the patterns of formation of the sole or collegial composition of the court within certain types of legal proceedings and justice in general. The tendencies of modern procedural law in determining the ratio of individual and collegial in the courts of the first, appellate and cassation instances are analyzed separately.

Once Again on the Concept of Evidence in Civil Procedure Law

The article discusses the process of proof and its stages, classification of evidence. The role of forensic evidence in resolving disputes in the process is becoming increasingly important. Problems of collecting and interpreting evidence associated with the evidentiary process are of particular importance in legal disputes, since they are means of proof that determine the outcome of the judicial consideration of the dispute. The purpose of the evidence is to establish factual circumstances relevant to the resolution of the civil case. When studying scientific work, the goal is to analyze the place of judicial evidence in civil proceedings and the problems in it using the example of domestic and foreign scientific literature. The methodological basis of the study is relativity, consistency, and formal legal methods. The results obtained in the scientific work are recommended for use in judicial practice, in the science of civil procedural law, in the science of the law of evidence.

О злоупотреблении правом в гражданском процессе

Procedure of the Institute of Justice of the Baikal State University The article examines certain aspects of abuse of law in civil procedure. The author has identified the reasons for the lack of a single legal definition of the legal institution under study in civil procedural legislation, which makes it possible to identify its main features. It has been established that such reasons are the evaluative nature of the legal phenomenon, the variability of forms of abuse of law, the need to maintain a balance with the principle of competition, and a special subject of proof. In addition, the author examined the features of legal counteraction to abuse of law in terms of exercising the right to receive compensation, identified problems of legal regulation that impede the widespread use of the opportunities provided by the legislator, and also suggested ways to improve the current procedural legislation. The author’s proposals are to develop a detailed counteraction mechanism that would exclude the court’s condoning of the illegal behavior in question.

Третьи лица, не заявляющие самостоятельных требований относительно предмета спора по делам об установлении факта, имеющего юридическое значение в арбитражном процессе

Procedure of the Saratov State Law Academy, Legal Practitioner In this article, despite the impossibility of embracing the immensity, several institutions of civil procedural law are identified, which have their own characteristic questionable features of unresolved (we will clarify as we increase): third parties without claims regarding the subject matter of the dispute, special proceedings, arbitration proceedings. The importance of the role of third parties in justice has been given over a different number of times, the practical orientation of resolving indisputable cases puzzles persons in their procedural position of the arbitration court — the applicant and interested persons, or interested entities together with the applicant with the involvement of third parties without claims in the case.

Конституционный Суд Российской Федерации о полномочиях районного суда по уголовным делам частного обвинения: можно ли ставить точку в правовом регулировании данного вопроса?

Ruling of the Constitutional Court of the Russian Federation No. 13-П of March 28, 2024, clarified the issue of authorities of a district court in privately prosecuted criminal cases on a crime stipulated by Part 1 of Art. 161.1 of the Criminal Code of the Russian Federation. Taking into account that criminal procedure provisions cannot be developed beyond the framework of criminal procedure law, there is a need for changes to the Criminal Procedure Code of the Russian Federation aimed at approval of respective legal instructions and bringing the external form of criminal procedure law in line with its internal form.

К вопросу о праве дачи заключения по делу органом власти в арбитражном процессе

The conclusion of the authority in the arbitration process is a new institution of arbitration procedural law. The possibility of giving an opinion by an authority in the arbitration process is based on the legal position of the Supreme Court of the Russian Federation. The author examines the institution of opinions through a number of identified inconsistencies, signaling that the issuance of an opinion should be established as a general rule in the arbitration process. This is a discrepancy in the line of correlation with special norms that allow the authority to give an opinion on the case (against the background of the absence of a general norm, the authority gives an opinion in the arbitration process only in cases involving a foreign state); a discrepancy in the line of correlation with the powers of other entities occupying a similar procedural position (the right to give an opinion in the arbitration process was vested with the prosecutor); inconsistency in the line of correlation with the model of regulation of similar relations (giving an opinion is provided for in civil proceedings and in administrative proceedings); inconsistency in the line of completeness of the competence of the authority itself (the authority can initiate the process, but it cannot enter into it to give an opinion); inconsistency in the line of interchangeable forms of participation in the case of bodies used in practice the authorities (the inability to give an opinion entails the involvement of authorities as third parties without independent claims on the subject of the dispute).

О системности процессуальных гарантий на этапе окончания различных видов предварительного расследования

This article examines the stage of completing the preliminary investigation, inquiry in the general order, inquiry in an abbreviated form (before sending the criminal case to the prosecutor with an indictment, indictment, indictment resolution) as an element of a unified system for completing the preliminary investigation. Attention is drawn to the fact that currently the criminal procedural law at the final stage of the preliminary investigation does not provide for a uniform procedure for approval (coordination) and presentation of final procedural documents to participants in criminal proceedings, which affects the legality of criminal proceedings. The procedure for procedural activities at the stage of completing a preliminary investigation without sufficient grounds varies significantly. It is concluded that the rights and legitimate interests of participants in criminal proceedings at the stage of completion of the inquiry in the general order, inquiry in an abbreviated form are not properly ensured. Proposals are formulated to improve criminal procedural legislation aimed at increasing the level of guarantees of both the rights and legitimate interests of participants in the process, and the implementation of the control and security role of this stage of the preliminary investigation.

Juridical Review of Electronic Agreements on Paylater Features in Indonesia

In civil procedural law in Indonesia, it is known that there are five types of evidence as regulated in Article 164 HIR/284 RBG, namely letters, witnesses, confessions, oaths and judges' allegations. The letters referred to in the first form of evidence are letters that are signed and contain legal acts. However, a letter that can be strong evidence is an authentic deed, namely a letter made by or before a notary. From here, problems arise regarding the evidentiary strength of electronic contracts if a dispute occurs between the parties. The problems that will be discussed in this research are regarding the form and validity of electronic agreements in the paylater feature in Indonesia and the evidentiary strength of electronic agreements in the paylater feature when a dispute occurs. The type of research used in this research is normative juridical. The results of this research are that the electronic contract agreement process and conventional contracts have similarities, what differentiates the two contracts is that electronic contracts are carried out without face to face and do not need to meet in person so that the electronic contract agreement process occurs more quickly, easily and efficient. Electronic contracts with Paylater are valid because they fulfill the legal requirements for an agreement based on Article 1320. Apart from that, if we examine the electronic contract, it also complies with the provisions regulated in Law Number 19 of 2016 concerning Information and Electronic Transactions. The evidentiary status of electronic evidence in civil cases in court is as valid evidence. The presence of Law Number 19 of 2016 concerning Amendments to Law Number 11 of 2008 concerning Information and Electronic Transactions, as a form of confirmation of the recognition of electronic information and/or documents as legally valid evidence. As long as the information and/or electronic documents included can be accessed, displayed, their integrity is guaranteed, and can be accounted for so that they can explain a situation or event related to the dispute that occurred.

Legal Certainty Of Electronic Land Title Certificates

The idea of launching electronic land certificates aims to increase efficiency in land registration, support the Ease of Doing Business (EoDB), reduce the number of land cases, and provide better legal certainty. Electronic land certificates, like conventional certificates, serve as proof of land ownership rights. However, the application of electronic certificates is still faced with public concerns regarding the security of digital data, although there are also those who consider it safer because it is free from the risk of damage or loss. Article 2 paragraph (1) states that the land registration process can be done digitally. This research uses a normative legal method with a conceptual approach, starting from an analysis of the vagueness of norms which is then discussed regarding legal certainty in land ownership with electronic certificates, which is supported by Law Number 6 of 2023 concerning Job Creation, Article 147. The determination of electronic certificates as valid evidence is also contained in Law Number 1 of 2024 concerning the second amendment to Law No. 11 of 2008 concerning Electronic Information and Transactions (ITE), Article 5, which recognizes electronic information, electronic documents, and their printouts as valid legal evidence in accordance with applicable procedural law in Indonesia.