scholarly journals UDZIAŁ OSÓB NIEUPRAWNIONYCH W WYDANIU ORZECZENIA W POSTĘPOWANIU CYWILNYM - UWAGI NA TLE D.1,14,3 I D.41,3,44 PR.

2017 ◽  
Vol 6 (2) ◽  
pp. 97
Author(s):  
Bartosz Szolc-Nartowski
Keyword(s):  
Common Sense ◽  
Public Interest ◽  
Civil Procedure ◽  
The Other ◽  
Roman Law ◽  
Private Law ◽  
The Public ◽  
Civil Proceedings ◽  
Bona Fide ◽  
Polish Law

Participation of Unauthorised Persons in Issuance of Decisions in Civil Proceedings - Remarks on the Basis D. 1,14,3 and D. 41,3,44 pr.SummaryAccording to Polish civil procedure a sentence given by an unauthorized person is invalid. This was not always the case in ancien Roman law. Ulpianus declared that when a slave, who escaped from his master, became a praetor, his acts were valid. He took into consideration serious problems of those who had put their trust in the praetor’s office as well as the respect for humanitas. A basic common sense requires that what was well decided, should be considered valid. According to the author, Ulpianus realized that the rule of ius civile which determined the requirements for entering in a praetor’s duties had the character of a guarantee. If the purpose, for which this rule was established, was achieved, such acts should be accepted as valid.The question arises whether that approach could be applied to contemporary cases of iudex incompetens. Furthermore, whether it would be justifiable to extend this solution to other - not only procedural – but also material, guarantee rules?The answer is not easy. In D. 41,3,44 pr., a pater familias conducted the procedure of adrogation (adoption) improperly. Papinianus decided that, although pater familias made a justifiable mistake, all that the son enacted in the name of the father, was invalid. Nevertheless a different rule, as the jurist says in D. 41,3,44 pr., must be observed in the case of homo liber bona fide serviens - a person, who being unaware of his free man status, served as a slave. Actions taken by such a person were valid (the purchaser of a slave had to be protected), since transactions of that kind happened very often. More importantly, any other solution would be against the public interest. O n the other hand, it was very rare for a pater familias to wrongly adrogate, therefore the example of pater familias did not create a general rule.It seems quite difficult to indicate one principle which could be applied to all the guarantee rules. As far as the case of an unauthorized person giving sentence is concerned, the Roman private law shows that the regard for the public interest may sometimes justify solutions different from those preferred by Polish law.

scholarly journals PRIVATE AND PUBLIC INTEREST IN THE ‘INTERDICTUM NE QUID IN LOCO PUBLICO FIAT’

2018 ◽  
Vol 17 (4) ◽  
pp. 197-215
Author(s):  
Renata Kamińska
Keyword(s):  
Public Interest ◽  
The Other ◽  
Roman Law ◽  
Public Place ◽  
Public Places ◽  
The Public ◽  
Private And Public ◽  
Potential Damage ◽  
Scope Of Protection ◽  
Private Individual

Roman law accorded a broad scope of protection for public places. Te magistrates responsible for securing it were the curule and plebeian aediles, the censors, and the praetors. Praetors conducted this duty by promulgating interdicts. Ne quid in loco publico fat, which prohibited any activity or installation in a public place which could cause damage, stands out among the other praetorian interdicts. What made it special was that it could be applied both when the potential damage concerned the public interest (utilitas publica), and/or the interest of a private individual (utilitas privata). The damage (damnum) was defned as the loss of a beneft of whatsoever kind the private individual drew from his enjoyment of the public place in question.

scholarly journals Standing to litigate in the public interest in Lesotho: The case for a liberal approach

2020 ◽  
Vol 20 (2) ◽  
Author(s):  
Hoolo 'Nyane ◽  
Tekane Maqakachane
Keyword(s):  
Public Interest ◽  
Public Law ◽  
The Other ◽  
Private Law ◽  
Bill Of Rights ◽  
Constitutional Democracy ◽  
The Public ◽  
Locus Standi ◽  
Liberal Approach

In Lesotho, standing to litigate is still based on the private law doctrine of locus standi in judicio. This doctrine requires the person who institutes an action in a court of law, regardless of whether it is in the private or public interest, to satisfy the court that he or she is directly and substantially interested in the outcome of the decision. Section 22(1) of the Constitution of Lesotho provides that any person who alleges that the Bill of Rights in the Constitution has been violated 'in relation to him' may approach the court of law for redress. Although the Constitution is silent about the enforcement of the other non-Bill of Rights parts of the Constitution, the courts have readily invoked section 22(1) to exclude litigants who are not 'directly and substantially' interested in the outcome of the case. This restrictive approach notwithstanding, a more liberal approach has been adopted in pockets of public law decisions of the superior courts in Lesotho. The purpose of this article is to amplify this liberal approach. The article argues that constitutional democracy in Lesotho will benefit from a liberal approach as opposed to a restrictive approach to standing. This is supported by a discernible movement in modern-day public law towards a more liberal approach to standing.

Once the conviction has been set aside, there could be no public policy objection to an action for negligence against the legal advisers. There could be no conflict of judgments. On the other hand, in civil, including matrimonial, cases, it would seldom be possible to say that an action for negligence against a legal adviser or representative would bring the administration of justice into disrepute. Whether the original decision was right or wrong was usually a matter of concern only to the parties and had no wider implications. There was no public interest objection to a subsequent finding that, but for the negligence of his lawyers, the losing party would have won. But again there might be exceptions. The action for negligence might be an abuse of process on the ground that it was manifestly unfair to someone else. Take, for example, the case of a defendant who published a serious defamation which he attempted unsuccessfully to justify. Should he be able to sue his lawyers and claim that if the case had been conducted differently, the allegation would have been proved to be true? It seemed unfair to the plaintiff in the defamation action that any court should be allowed to come to such a conclusion in proceedings to which he was not a party. On the other hand, it was equally unfair that he should have to join as a party and rebut the allegation for a second time. A man's reputation was not only a matter between him and the other party. It represented his relationship with the world. So it might be that in such circumstances, an action for negligence would be an abuse of the of the court. Having regard to the power of the court to strike out actions which had no prospect ofsuccess, the doctrine unlikely in that context to be invoked very often. The first step in any application to strike out an action alleging negligence in the conduct of a previous action had to be to ask whether it had a real prospect of success. Lord Hope, Lord Hutton and Lord Hobhouse delivered judgments in which they agreed that the immunity from suit was no longer required in relation to civil proceedings but dissented to the extent of saying that the immunity was still required in the public interest in the administration of justice in relation to criminal proceedings. Comment This decision is of major and historic importance in the English legal system for several reasons. It can be seen as a bold attempt by the senior judiciary to drag the legal profession (often a metonymy for the whole legal system) into the 21st century world of accountability and fair business practice. In his judgment, Lord Steyn makes this dramatic observation:

2012 ◽  
pp. 506-508
Keyword(s):  
Legal System ◽  
Public Interest ◽  
The Other ◽  
Criminal Proceedings ◽  
The Public ◽  
Other Hand ◽  
Civil Proceedings ◽  
Administration Of Justice ◽  
Legal Adviser ◽  
To Come

scholarly journals Abuse of Procedural Rights in Polish and European Civil Procedure Law and the Notion of Private and Public Interest

2019 ◽  
Vol 2 (3) ◽  
pp. 53-85
Keyword(s):  
Public Interest ◽  
Civil Procedure ◽  
European Area ◽  
Stage Of Development ◽  
Civil Proceedings ◽  
Universal Approach ◽  
Private And Public ◽  
The Law ◽  
Polish Law ◽  
Procedural Rights

The article discusses the abuse of procedural rights in Polish and European civil procedure law and the notion of private and public interest. The issue of abuse of procedural rights is a category of applying the law. At the current stage of development there is no simple transposition of the issue of legal interest on the institution of abuse of procedural right; undeniably, the lack of current and real interest, with the assumption of fulfillment of other prerequisites, may be contemplated in categories of abuse of right by the court under ius dicere. In the Polish law it is not sufficient to analyse this phenomenon solely in the sphere of procedural locus standi and there shall be the interest in taking a specific step. There also shall be the awareness of the party taking the step as to its inadmissibility and intention to harm the other party, as e.g. in case of fictitious actions. In the European area it is additionally necessary to create methodology and general approach to abuse of right in European civil proceedings and finding compromising approach towards understanding of the notion of the interest in Roman and Germanic law systems. Because application and development of the law due to lack of procedural fairness and good faith is rather difficult to verify and to define, the advantage of adopting admissibility of a separate international institution of abuse of procedural right would lie in the possibility of applying a universal approach towards abuse of procedural right in all member states. Thiswould mean that each court of the member state would apply the same standard of the test. Finally, the alternative use of exclusively national concepts of abuse of procedural right cannot be continued. It can be assumed that confirmation of the existence of the abuse of European procedural right in a given case would require existence of objective and subjective factors.

10. Public interest immunity, closed material procedures, and disclosure

2017 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Foreign Policy ◽  
Criminal Justice ◽  
National Security ◽  
Public Interest ◽  
Criminal Procedure ◽  
Civil Procedure ◽  
Criminal Proceedings ◽  
The Public ◽  
Civil Proceedings ◽  
Civil Cases

This chapter, which deals with public interest immunity (PII) and disclosure in criminal and civil cases, first explains exclusion of evidence on the grounds of the PII doctrine in relation to the public interest in non-disclosure of documents. It then considers disclosure in criminal proceedings under the Criminal Procedure and Investigations Act 1996 (as amended by the Criminal Justice Act 2003) and the Criminal Procedure Rules 2014 as well as disclosure in civil proceedings under the Civil Procedure Rules. The chapter also examines areas of public interest that are covered by possible PII claims, including national security, defence and foreign policy, protection of children, the identity of police informers, and confidential records held by public bodies. It concludes with an outline of the Closed Material Procedures (CMPs).

Cohabitants, Choice, and the Public Interest

2018 ◽  
Author(s):  
Robert Leckey
Keyword(s):  
Social Change ◽  
Public Interest ◽  
Intimate Relationships ◽  
Family Law ◽  
Regulatory System ◽  
Law Reform ◽  
Private Law ◽  
The Public ◽  
System P ◽  
The Face

Through the narrow entry of property disputes between former cohabitants, this chapter aims to clarify thinking on issues crucial to philosophical examination of family law. It refracts big questions—such as what cohabitants should owe one another and the balance between choice and protection—through a legal lens of attention to institutional matters such as the roles of judges and legislatures. Canadian cases on unjust enrichment and English cases quantifying beneficial interests in a jointly owned home are examples. The chapter highlights limits on judicial law reform in the face of social change, both in substance and in the capacity to acknowledge the state's interest in intimate relationships. The chapter relativizes the focus on choice prominent in academic and policy discussions of cohabitation and highlights the character of family law, entwined with the general private law of property and obligations, as a regulatory system.

scholarly journals Public Interest Opposite the Freedom of Contractual Will in Administrative Contracts in the Republic of Albania

2017 ◽  
Vol 6 (s2) ◽  
pp. 37-48
Author(s):  
Artan Spahiu
Keyword(s):  
Public Interest ◽  
Legal Framework ◽  
The State ◽  
Private Law ◽  
Legal Analysis ◽  
Administrative Contract ◽  
The Public ◽  
General Arrangement ◽  
Role Of The State ◽  
The Republic

Abstract The protection of the public interest is the main principle governing the activity regulation of the administrative bodies. This activity, traditionally, has been developed through administrative acts, as an expression of the unilateral and authoritarian willpower of public authority, which creates legal consequences. The administrative act has been and remains the most important instrument for the administration bodies to accomplish their mission, but it is no longer effective. Particularly this lack of efficiency is noticed in recent years when the development of the economy and the needs of the evergrowing society have prompted the administration to adapt its activity by making use of other mechanisms “borrowed” from private law. An important part of public activity can also be achieved through the contract as a way that brings the state closer to the private, mitigating its dominant position and leaving space for the efficiency of private activity to fulfil public engagements. Such contracts today are known as “administrative contracts” or “public contracts”. The terms mentioned above are instruments that establish legal relations, for the regulation of which the principle of public interest is opposed and competes with the principle of freedom of the contractual willpower. The regulation of these types of contracts is reached through the private law, which constitutes the general normative framework of contracts (lex generalis) even for the administrative contracts. But this general arrangement will have effect for as long as it does not contradict the imperative provisions of the specific act of public law (lex specialis), which regulates the administrative procedure for the completion of these contracts. This paper aims to bring to the spotlight the way our legislation predict and regulates administrative contracts, by emphasising particularly the features of their dualistic nature. The coexistence and competition of the principles of the freedom of contractual willpower and the protection of the public interest, evidenced in administrative contracts, is presented in this paper through the legal analysis of the Albanian legal framework which regulates these contracts. Under the terms when the role of the state in providing public services tends to increase and our legislation aims the harmonization in accord with the European legislation, it is necessary to improve the administrative contract regulation and extend its scope of action.

scholarly journals Mediator jako zawód włączony w ustrój sądów powszechnych – praktyka zmian dotyczących mediacji cywilnej

2018 ◽  
Vol 27 (3) ◽  
pp. 129
Author(s):  
Anna Kalisz
Keyword(s):  
Civil Procedure ◽  
Significant Part ◽  
Social Knowledge ◽  
Private Law ◽  
Western Countries ◽  
Civil Proceedings ◽  
The Social ◽  
Eu Directives ◽  
The Eu ◽  
Commercial Disputes

<p>The article is an attempt to examine the results of the amendments, which have been introduced to civil procedure and to mediation law since the 1<sup>st</sup> January 2016. Mediation corresponds with the nature of private law and in many other Western countries it has become a significant part of justice in civil, commercial and family matters. The examined updating was meant to: raise the social knowledge and recognition of mediation; increase the number of mediations conducted; motivate lawyers to apply it as a solution for legal disputes; raise the standards of professional court mediators and – last but not least – shorten the length of the civil proceedings. Most of the changes have been inspired by the EU directives on commercial disputes.</p>

THE METHODOLOGY OF TEACHING CIVIL PROCEDURE (MEMORIES OF MIKHAIL KONSTANTINOVICH TREUSHNIKOV)

2021 ◽  
Vol 11 (5) ◽  
pp. 22-33
Author(s):  
E.V. KUDRYAVTSEVA
Keyword(s):  
Social Sciences ◽  
Legal Education ◽  
Civil Procedure ◽  
The Other ◽  
State University ◽  
Civil Proceedings ◽  
Law Faculty ◽  
Training Courses ◽  
Moscow State University

The article is dedicated to the memory of Mikhail Konstantinovich Treushnikov, Doctor of Law, Professor, Honored Scientist, Head of the Department of Civil Procedure of the Law Faculty of the Lomonosov Moscow State University. The article analyzes the methodology of teaching civil procedure, focuses on the methodology of lecturing, seminars, and game processes. Mikhail Konstantinovich paid great attention to the methodology of teaching civil procedure. The author of the article offers a study of the section “Methods of Teaching Law” from the book “Creative Search in the Science of Civil Procedure Law” by M.K. Treushnikov published in 2020. This section presents methodological recommendations on how to prepare and give lectures for newly elected judges at the republican training courses for legal officers on two subjects: “Preparation of civil cases for trial is a mandatory stage of the process”, “Types of evidence in civil proceedings”. The other two articles in this section are devoted to different issues. One is devoted to the methodology of teaching law in non-law universities (on the example of Moscow State University), the other is written on the basis of a speech “Traditions and Innovations in Legal Education” at the conference meeting of the heads of the departments of social sciences of the Lomonosov Moscow State University on 16 February 2007 and shows the role of departments in solving the problems of legal education.

30. Striking Out, Discontinuance, and Stays

2021 ◽  
pp. 324-335
Author(s):  
Stuart Sime
Keyword(s):  
Civil Procedure ◽  
The Other ◽  
Court Order ◽  
Civil Proceedings

This chapter discusses striking-out orders, discontinuance, and stays in civil proceedings. Rule 3.4(2) of the Civil Procedure Rules 1998 (CPR) allows the court to strike out a statement of case if it appears to the court: that the statement of case discloses no reasonable grounds for bringing or defending the claim; that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or that there has been a failure to comply with a rule, practice direction, or court order. A party who realizes their case is doomed is often best advised to discontinue to prevent the accumulation of further costs, but often has to pay the costs of the other parties to date. Stays are temporary halts in proceedings, and can be granted for a range of reasons. A stay is normally lifted once the reason no longer applies.

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