Procedural Rules Research Articles

KELEMBAGAAN DAN KEWENANGAN PENGADILAN NIAGA TENTANG UPAYA HUKUM KEBERATAN TERHADAP PUTUSAN KOMISI PENGAWAS PERSAINGAN USAHA

Article 24A (5) of the 1945 Constitution regulates the composition, position, membership, and procedural law of the Supreme Court and subordinate judicial bodies. Initially limited to bankruptcy, postponement of debt payment obligations (PKPU), and commercial matters by Law Number 37 of 2004, the jurisdiction of the Commercial Court has expanded through other laws. This expansion raises two key issues: (1) The need for legal remedies for objections to decisions of the Competition Supervisory Commission (KPPU), and (2) The competence of the Commercial Court to address these objections. This research uses a normative juridical method, suggesting that legal remedies for objections to KPPU decisions should be regulated in a separate law, addressing decisions from institutions beyond the judiciary’s jurisdiction. The procedural aspects for contesting KPPU decisions, outlined in Article 45 of the Omnibus Law Number 6 of 2023, should first be determined within the competence of the Commercial Court as regulated by law. The current institutional arrangements and authority of the Commercial Court, as outlined in the Bankruptcy and PKPU Laws and laws on Intellectual Property Rights, should be revised through a dedicated Law on Commercial Courts. This law should define the court's structure, powers, procedural rules, and set time limits and sanctions for case resolution at both the Commercial Court and the Supreme Court.

Digital transformation and the traditional rules of civil procedure – Some remarks on the Polish example

Digital transformation and the traditional rules of civil procedure – Some remarks on the Polish example

Peran Arbitrase dalam Penyeleseaian Sengketa di Luar Pengadilan Menurut Undang-Undang No. 30 Tahun 1999

Apart from regulating the use of arbitration, Law Number 30 of 1999 concerning Arbitration and Alternative Conflict Resolution encourages business actors to examine alternative conflict resolution. Arbitration is a method of resolving a civil settlement outside of general court which is based on an arbitration agreement signed between the parties. According to Law Number 30 of 1999, alternative recovery methods include mediation, negotiation, consultation, expert review and conciliation. Arbitration comes from the Latin word arbitrare which means the power to resolve something based on discretion. The appointment of arbitration with discretion gives the impression that an arbitrator is someone who can reach a more reasonable conclusion regarding the settlement. This research method uses a descriptive analysis approach which uses factors that influence the advantages of arbitration and this data source is secondary, namely according to legal documents - Law number 30 of 1999 and related laws, as well as journals and books. The fact that the arbitrators are selected by both parties to the dispute and are experts in their fields indicates that they are informed about the issues at hand, which is one of the benefits of resolving conflicts outside the court system rather than through litigation. Second, settlement decisions are made behind closed doors, so that only a few parties know the main issues at issue. Specialization or expertise in case management gives clients confidence• Arbitration is a popular alternative in business settlements due to several key advantages. The closed process maintains confidentiality and avoids adverse publicity. Arbitration decisions are final and binding, and the process is faster and more predictable than court. Flexibility in selecting arbitrators and arbitration procedural rules also provides parties with greater control over the outcome of their settlements. Overall, arbitration achieves amicable resolutions, supports sustainable commercial relationships, and allows for resolution in a more efficient and effective manner

A Survey of Judicial Effectiveness: The Last Quarter Century of Empirical Evidence

Abstract Courts around the world are often perceived to be ineffective in the delivery of justice. The resolution of cases takes too long, costs too much, and is biased in favor of the rich and politically connected. These stylized facts motivate judicial reform. With the benefit of a quarter century of empirical research, this paper finds that judicial reform is successful in improving court effectiveness when it coincides with or is motivated by periods of extraordinary politics. We study the four most discussed ingredients of judicial effectiveness—independence, access, efficiency, and quality—and find that transformative judicial reform is most likely to succeed in countries emerging from conflict and violence or those that are pursuing accession to regional or international groups. Absent such conditions, reformers are better off focusing on the adoption of procedural rules that increase the effectiveness of the existing judicial system. The survey highlights procedural reforms that deliver better outcomes.

Novi međunarodni privredni sudovi

In this paper, the author provides an overview of the main characteristics of international commercial courts, their composition and jurisdiction, as well as private international law instruments that ensure the recognition and enforcement of their decisions abroad. International commercial courts are national courts of international jurisdiction. They are established by individual states that aspire to be or become significant global centres for the resolution of commercial disputes. They are characterized by a certain degree of internationalization, reflected in their ability to conduct proceedings in the English language and in the origin of judges, who are, in some instances, foreign nationals. Some international commercial courts adjudicate cases according to common law rules, even though they are based in countries with legal systems based on continental law or Sharia law. The procedural rules before most of these courts incorporate elements of arbitral procedural rules and alternative dispute resolution methods. They generally have jurisdiction in commercial disputes with an international element, and they recognize a written choice-of-court agreement of the parties as the basis for international jurisdiction. In this regard, there is no requirement for any connection with the state where the court is based for valid submission to jurisdiction.

Административное право и процесс № 06/2024 Дата публикации: 06.06.2024 Правовые позиции Верховного Суда Российской Федерации по порядку составления протокола об административном правонарушении

The article analyzes the procedural rules governing the procedure for initiating a case by drawing up a protocol on an administrative offense by an official. The Supreme Court of the Russian Federation is gradually filling in the gaps identified in the normative regulation. The article accumulates the legal positions of the Supreme Court of the Russian Federation regarding the procedure for drafting the most important procedural document — the protocol on an administrative offense, in order to draw the attention of officials performing law enforcement functions to the need to comply with all procedural rules in order to ensure the principle of legality.

Case system in learning Russian as a first and second foreign language

The task of creating innovative technologies for teaching Russian as a native, as a non-native and as a foreign language, taking into account the age of students, their cognitive abilities and features of the first language, is relevant. The solution of this problem requires a fundamental psycholinguistic study of the processes accompanying the formation of the language mechanisms of children and adults. The aim of this research is to specify the ideas about mastering the category of Russian case in various conditions of language acquisition. The method of comparative analysis of the processes of mastering Russian case in monolingualism, simultaneous child bilingualism, studying Russian as a foreign language and Russian language acquisition by a foreign-speaking child in the process of communication, was used. The material was collected during longitudinal observation of the speech of primary school students from St. Petersburg, who were native speakers of Turkic and Caucasian languages. The classification of errors in selecting and constructing case forms is proposed. The ways of access to the mental lexicon and the mechanisms of procedural grammar rules formation are described. The conclusion is that there is the imbalance between the cognitive and communicative development of a foreign child and the level of language proficiency, which leads to a detailed, but grammatically unformed statement, characteristic of a successive natural bilingual. When Russian-speaking child resorts to retrieving ready-made frameworks of prepositional case constructions from memory, the foreign child independently constructs them in speech, preferring to use basic and reduced forms. In the future, it is necessary to develop a unified toolkit for studying grammar mechanisms formation and to increase the empirical base of the study. The information about speech ontogenesis obtained as a result of the study must be taken into account for developing scientifically based methods of teaching Russian as a non-native language and as a foreign language.

Artificial Intelligence Systems and Medical Negligence: An Overview and Perspective of a Case Study in Ghana Civil Procedure Rules, 2004 (C.I. 47)

Objective: This article discusses the evidentiary requirements for demonstrating scientific negligence under Ghana’s Civil Procedure Rules 2004 (C.I. 47) in the context of emerging artificial intelligence (AI) diagnostic and treatment structures.Method: Legal analysis examines gaps in satisfying burden of proof and standards of evidence, obstacles that restrict evidence collection on AI device deficiencies, and suggestions for adapting legal responsibility policies to AI’s technical opacity.Findings: The present inability to interrogate algorithms, limited access to proprietary training data and methods, lack of diagnosed standards of care for software-based decision-makers, and shortage of qualified professional witnesses pose massive evidentiary challenges for plaintiffs seeking to confirm AI negligence.Conclusions/Recommendations: Standards strengthening algorithmic transparency, auditability, and explainability could ease evidentiary burdens for affected patients. Strict liability schemes and IP protections balancing public safety and innovation aims need to be considered moving forward.Scientific Contributions: This work adapts traditional medical liability systems to today’s realities of increasing reliance on AI in health care and proposes several improvements.

When objects betray you: the Internet of Things and the privilege against self-incrimination

ABSTRACT The introduction of IoT data in court without the consideration of its impact on the privilege against self-incrimination leads to the restriction of this fundamental right of the accused, who sometimes has no real choice to decide for or against the use of their IoT data due to various economic, social and health reasons. This article presents the point of friction between digital evidence and the privilege against self-incrimination and its evolution over the years in Germany and the United States, highlighting the increasing introduction of IoT evidence in court. It then identifies the various reasons why IoT are adopted by users. Finally, this article emphasizes that technical solutions cannot fully contribute to the resolution of the conflict between the privilege against self-incrimination and the use of IoT data as evidence in court. A real solution to the problem can only be achieved by the legislature and corresponding adjustments to existing rules of criminal procedure.

Judicial Review of the EU's Informal Migration Tools - Admissibility in Cases of Tunisia and Türkiye Deals

Accountability of the EU in external migration management has become increasingly challenging due to the widespread use of informal tools. Since the Amsterdam Treaty, the EU has exercised this competence primarily through readmission agreements. However, following the urgency of the migration crisis post-2015, coupled with the procedural and legal constraints of readmission agreements and the necessity for flexibility, informal tools like the EU-Turkey Statement (2016) have gained preference over hard law sources. Judicial review of these instruments has only been tested in the case of Türkiye, where the CJEU rejected the case during the admissibility stage. This article evaluates the judicial review of informal migration tools within this context. It does so by examining the potential for annulment against the EU-Tunisia Memorandum of Understanding (2023) from a procedural perspective, drawing upon criteria derived from the Türkiye case and relevant CJEU jurisprudence. It is concluded that the current criteria regarding the status of applicants are insufficient to bring the EU before the CJEU. Therefore, given the ongoing increase in the use of informal tools, there is a pressing need to reform the procedural rules concerning actions for annulment.

Regulation of civil legal relations according to the Salic truth

The presented article is devoted to the analysis of the norms of the Salic Law which regulated civil legal relations of the Frankish society. The article notes that the Salic Law is a collection that was primarily devoted to the rules of criminal law and criminal procedure. Less attention was paid to the norms of civil law. This was due to the fact that the agricultural economy was not organized on a contractual basis. However, despite this, it contained rules that regulated property rights, obligations, marriage and family law, and inheritance law. The author has established that the Salic Law does not have a clear definition of property. The Franks retained communal ownership of land for a long time, as the rural neighborhood community, the marka, continued to exist despite the formation of the state. It is noted that at the end of the sixth century, the Franks formed a «full allod» – freely alienable land property, which was allowed to be freely given, transferred and bequeathed, including to women. A movable property was owned by families or individuals and could also be freely alienated and inherited. Based on the analysis of the norms of the Salic Law, the author found that the law of obligations was the least developed. There were such types of contracts as sale and purchase, exchange, gift, and loan. For a contract to be valid, in addition to the consent of the parties, it was necessary to observe various rites. As for marriage and family law, the article states that a legal marriage could be concluded between an adult free man and an adult free woman (no minimum age was set), subject to the consent of their relatives and provided that both parties were not bound by prohibited ties of kinship. Marriage was concluded through the purchase of a wife, i.e. power over her, from the person who had previously exercised this power over her. The grounds for invalidating a marriage were also defined. The author also analyzes the order of inheritance according to the Salic Law. It is established that the heirs in descending order were: children (and their descendants); mother and father; brothers and sisters; father’s sisters; mother’s sisters; father’s relatives (up to the sixth generation). Allodial land was а family land, it could not be inherited by females.

CONTRIBUTIONS OF DECLARATION OF ETHICS FOR TURKISH JUDICIARY TO THE RIGHT TO A FAIR TRIAL IN TERMS OF EFFECTIVE PARTICIPATION IN TRIALS

A fair trial forms the foundation of all laws and procedures applicable in legal cultures. The European Court of Human Rights (ECtHR) defines a fair trial as a foundational norm of the rule of law in democratic societies and strives to guarantee the proper administration of justice. The right to a fair trial is enshrined in Article 6 of the European Convention on Human Rights (ECHR). One of values protected by the right is the right to participate effectively in a trial. For effective participation in a trial to occur, a hearing must be conducted, and a defendant must have the means and opportunity to express himself/herself. These opportunities must be afforded to defendants by the courts. A court must adhere to ethical rules as well as procedural or substantive rules to ensure a fair trial. The Council of Judges and Prosecutors published "Declaration of Ethics for Turkish Judiciary" on March 6, 2019. Judicial ethics determine how judicial services should be carried out fairly for specific purposes. The purpose of the article is to analyze the contributions of the principles outlined in "Declaration of Ethics for Turkish Judiciary" to the right to a fair trial in terms of effective participation in a trial.

Why Should the Role of the House of Representatives in Monitoring and Review Local Regulations Be Strengthened?

The enactment of Law No. 15 of 2019, which established the Post-Legislative Scrutiny (PLS) institution, marked a pivotal shift in the formation of laws and regulations (PUU) in Indonesia. This legislation ushered in a comprehensive cycle for PPU, fundamentally altering the landscape of legislative processes. Despite this progress, a prevailing assumption persists that the PLS mechanism is solely within the purview of the People's Representative Council (DPR) concerning national laws, while oversight of Regional Regulations (Perda) falls under the authority of the Regional People's Representative Council (DPRD), with limited discourse on the latter's role in academic circles. This study endeavors to elucidate the theoretical underpinnings of PLS within international parliamentary frameworks, analyze the regulatory framework of PLS Perda as delineated in Law No. 23/2014 and PP No. 12/2018, scrutinize its implementation in Provincial DPRD Rules of Procedure, and advocate for bolstering the DPRD's role in conducting PLS Perda. Findings reveal a lexicon of PLS terminology within Indonesian legislative context, alongside a bifurcation of PLS Perda oversight between the DPD and DPRD. Alarmingly, a staggering majority (93.10%) of Provincial DPRDs nationwide have yet to formalize PLS procedures in their Rules of Procedure, with only the DIY Provincial DPRD demonstrating comprehensive implementation among the 34 surveyed. The imperatives for empowering DPRD's Bapemperda include evaluating Regional Regulations' efficacy, fostering legal coherence, preempting discriminatory legislation, enhancing legislative quality through experiential learning, and resolving the institutional dualism between DPD and DPRD in PLS Perda oversight. These measures not only fortify legislative processes but also mitigate jurisdictional ambiguities, ensuring robust governance at both national and regional levels.

Development of Xiaomi Product Mobile Forensic Acquisition Framework on Second Space Features Based on SNI/ISO 27037:2014

Abstract — In conducting digital forensic activities, it must follow the rules of SOP procedures or frameworks as a reference. One of the acquisition frameworks used in digital forensics practice is ISO 27037:2014, which contains specific guidelines related to digital forensic investigation activities. On the other hand, mobile cellular is one of the branches of digital forensics that is always developing, but with the large variety of mobile devices today, ISO 27037: 2014 has not provided specific standards in the digital forensics process on mobile devices that have special features that are different from ordinary mobile devices. One of the special features provided by Xiaomi vendor developers that gives users access to cloning and creating new space in one mobile phone is called second space or second space. With this, it will be a problem for investigators when conducting forensic processes because the data acquisition process will produce 2 extraction results from one mobile device, but the SNI ISO 27037: 2014 standard has not regulated the validity of digital evidence obtained from these special features. This research will develop a framework in conducting the investigation process on Xiaomi mobile devices, because currently only Xiaomi mobile devices have a second room feature. By paying attention to the existing problems, this research will develop a framework in carrying out the acquisition process on xiaomi mobile devices on the special features of the second room based on SNI ISO 27037: 2014. It is hoped that this research can help investigators, especially DEFR (Digital Evidence First Responder) and can be a reference that can be used in the process of searching for electronic evidence that is in accordance with SNI ISO 27037: 2014 and can be accounted for in court.

The Development of Interim Measures Procedure in Cases Against Poland Before CJEU

Abstract This article presents a contemporary model of applying interim measures by the Court of Justice of the European Union, drawing on an increasingly rich body of case law in Polish cases. The disputes that the European Commission has engaged in with the Polish government, along with the non-standard obstruction in compliance with EU law, have become the basis for a new approach to this ancillary procedure offered by the Rules of Procedure of the Court. The article focuses on two sensitive areas where judicial intervention has proved necessary, the protection of the natural environment and ensuring the rule of law, especially in the operation of the national judiciary. There is no doubt that this body of work constitutes a significant contribution to the overall development of EU law, as it has led to the adoption of a completely new interpretation of Article 279 TFEU. According to the latest case law, the possibility of imposing financial penalties on member states is not limited to cases provided for in Article 260 TFEU, that is, non-compliance with a judgment finding a breach of EU law; these penalties can also be imposed in cases of non-compliance with the Court’s interim orders.

Brain death diagnostics: use of ancillary tests

AbstractWith the determination of the definitive, irreversible loss of the overall function of the cerebrum, cerebellum and brain stem (irreversible loss of brain function, IHA, "brain death"), the death of the human being is determined from a scientific-medical point of view. The determination of IHA, with cardiovascular function being maintained by intensive care, requires special diagnostics ("brain death diagnostics"). This is carried out in the intensive care unit either to assess the medical prognosis, or as a prerequisite for post-mortem organ donation. In Germany, in accordance with the Transplantation Act, the procedural rules for determining IHA are laid down in corresponding guidelines of the German Medical Association (RL-BÄK), the 5th update of which has been in force since September 2022. Here, the indications, the requirements and the technical procedures of ancillary tests (electroencephalography, early auditory and somatosensory evoked potentials, Doppler and duplex sonography, computed tomography angiography, radionuclide perfusion scintigraphy, digital subtraction angiography) according to the German guidelines are outlined.

Issues of Improving the Implementation of Tax Control when Managing Tax Risks and Tax Audits

This scientific article highlights current issues in the field of reforming tax administration in the Republic of Uzbekistan, on further improving the activities of state tax authorities and the formation of a “digital economy” with high efficiency and development of the system, as well as accelerating the implementation of generally recognized international norms and standards in the field of tax control in national legislation clarifies the essence of the issues and explains the procedural rules of these processes. In particular, the determination by the State Tax Committee of the Republic of Uzbekistan of the strategy and tactics of the tax risk management system, collection and processing of information, analysis and assessment of tax risk, development and implementation of measures to manage tax risks is emphasized. The author provides a definition of the concepts, tax risk - that is, it is the possibility of non-fulfillment or incomplete fulfillment by the taxpayer (tax agent) of tax obligations, which can lead to non-payment or incomplete payment of taxes and fees to the budget system. At the same time, the level of tax risk is a state of risk, which is determined depending on the likelihood of the risk occurring and its possible consequences. From the above, the need to automate procedures for compliance with tax legislation and simplify its procedure is analyzed. The importance of introducing simplified mechanisms to extend the deadline for paying taxes or installments was emphasized. Here, every tax official, entrepreneur and taxpayer must thoroughly master the rules of the Tax Code, for which they need regular training. At the end, recommendations were developed for involving prestigious, influential foreign experts with extensive practical experience in this field in this process.

Regulation of the institute of concepts in the active criminal procedure code of Ukraine

The article examines the issues related to the procedural institute of participation of concepts in criminal proceedings, its appearance, development and legislative regulation at different historical stages. It is noted that since its origin, this institution of procedural law has been observed as a guarantee of ensuring the rights and interests of participants of investigative actions against harassment by the investigating authorities. A number of procedural rules which contain information on the participation of concepts in pre-trial proceedings allow us to conclude that the institute of witnesses is present in the current Code of Criminal Procedure.
 The authors analyse the opinions of scientists on the viability of keeping the institute of concepts in the current CPC, due to the modern technical opportunities for objective and complete fixation of the course and results of the investigative action. The authors conclude that the legislator has a reasonable attitude to the use of the traditional institute of concepts and the use of modern technical devices for recording investigative actions. The authors note that keeping the institute of concepts in the current CPC of Ukraine requires further regulation. The classification of a concept as a participant in criminal proceedings requires appropriate modifications to the CPC and an independent article among other participants in criminal proceedings. It is proposed to define this participant in the process in the relevant provision, indicating his procedural status (list of rights and obligations), the range of persons who cannot be involved as witnesses, and the right of participants to the investigative action to challenge the concept.
 Based on the analysis of scientists’ opinions, doubts are expressed about the ability of concepts to create conditions for an objective and, moreover, proper proceeding of the investigative action, to ensure the legality of its performance. In most cases, witnesses are random persons who are not interested in the case. The author analyses the proposals of scientists regarding the competitive recruitment by local self- government authorities of individuals who are trustworthy and passing their lists to law enforcement authorities for the purpose of engaging concepts. The authors justify the proposals for further regulation of the institute of concepts.

Peculiarities of certain investigative actions and procedural guidance of the prosecutor during martial law

On 24 February 2022, a full-scale war broke out and martial law was introduced throughout Ukraine by Presidential Decree No. 64/2022 in connection with the military aggression of the Russian Federation. The efficiency and effectiveness of criminal proceedings during the martial law regime depends on the quality of criminal procedural rules.
 The armed conflict initiated and supported by the Russian Federation on the territory of Ukraine since 2014 has created new challenges for the system of both international and national justice. The article draws attention to the fact that with the introduction of martial law in Ukraine on 24 February 2022 in connection with the military aggression of the Russian Federation, a number of significant changes were made to both the «military» section IX-1 and other sections of the Criminal Procedure Code of Ukraine. The nature of violations of these provisions requires a different approach not only at the level of legal qualification, but also in the process of organisation and procedural guidance of the pre-trial investigation by the prosecutor.
 The author emphasizes that the testimony obtained during the interrogation of a suspect, including simultaneous interrogation of two or more already interrogated persons, in criminal proceedings conducted under martial law may be used as evidence in court only if a defence counsel participated in such interrogation and the course and results of the interrogation were recorded using available video recording equipment.
 The author draws attention to the fact that prosecutors who provide procedural guidance in criminal proceedings concerning crimes committed in the context of armed conflict should record the testimony of victims and key witnesses, in particular, on issues relating to the role of the Russian Federation and its subordinate formations in the context of armed conflict on the territory of Ukraine, including the temporarily occupied territories.
 Pre-trial investigations of criminal offences committed in the context of armed conflict can take a long time, and it is therefore important for law enforcement investigators and prosecutors to take measures to preserve information, primarily the testimony of victims and witnesses.
 When organising procedural guidance, prosecutors should take into account the peculiarities of conducting and recording the course and results of investigative (detective) actions under martial law.

Новая веха в гражданском судопроизводстве с участием иностранных лиц в КНР

Recently, due to the active transformation of the economic and social structure, the number of civil disputes complicated by a foreign element being considered in the courts of China has increased dramatically. According to statistics, participants in such disputes are representatives from more than 100 countries around the world. The current rules of civil procedure governing proceedings involving foreign persons in China no longer fully meet the needs for fair, effective and convenient resolution of international civil disputes, as well as for the protection of national sovereignty, security and development interests, which makes it necessary to review and improve them.