scholarly journals ITIKAD BAIK DALAM PROSES MEDIASI PERKARA PERDATA DI PENGADILAN

Media Iuris ◽  
2018 ◽  
Vol 1 (2) ◽  
pp. 200
Author(s):  
Ajrina Yuka Ardhira ◽  
Ghansham Anand
Keyword(s):  
Supreme Court ◽  
Success Rate ◽  
Civil Procedure ◽  
Good Faith ◽  
Procedure Code ◽  
The Supreme Court ◽  
Legal Consequences

Mediation is a duty which must be taken by the parties wishing to settle its dispute in the Court as specified in the Civil Procedure Code and in accordance with Article 130 HIR and 154 RGB. To improve the regulation of mediation in the Court, the Supreme Court shall issue its Regulation, namely the Supreme Court Regulation No. 1 of 2016 on Mediation Procedures in the Court. Where the regulations on mediation as stipulated in the Supreme Court Regulation No. 1 of 2016 use good faith in its formal conditions. And with such a condition the Supreme Court expects the success rate of mediation in the first level to increase so as to reduce the number of cases accumulated at the Supreme Court. Good faith as a duty to the parties in the Supreme Court Regulation Number 1 Year 2016 is made clear in Article 7 paragraph (1), where there are legal consequences for parties that are considered not having good intentions by doing things listed in Article 7 paragraph (2) , namely Article 22 for the plaintiff and Article 23 for the defendant. 

scholarly journals Penyelesaian Perkara Perdata di Pengadilan Berdasarkan Peraturan Mahkamah Agung Republik Indonesia Nomor 1 Tahun 2016

2018 ◽  
Vol 7 (4) ◽  
pp. 456
Author(s):  
I Komang Wiantara
Keyword(s):  
Supreme Court ◽  
Dispute Resolution ◽  
Research Method ◽  
Civil Procedure ◽  
Good Faith ◽  
Court Decision ◽  
Party Autonomy ◽  
Peace Agreements ◽  
Procedure Code ◽  
The Supreme Court

The existence of mediation in the settlement of civil disputes in the courts is regulated in the Supreme Court Regulation No. 1 of 2016 concerning Mediation Procedures in the Court which contains ten principles including: mediation must be taken, party autonomy, mediation in good faith, time efficiency, mediator certification, mediator responsibility , confidentiality, financing, repetition of mediation, peace agreements outside the court, become integral parts in resolving disputes in court. In addition, mediation in the court strengthened peaceful efforts as stated in the Civil Procedure Code. The purpose of this study is to understand and analyze the legal strength of mediation in the Court. This study uses a normative juridical research method using the statutory approach. Study show that due to its consensual and collaborative nature, mediation always results in a dispute resolution in a win-win solution that is strengthened to become a Peace Deed, which has Executorial power like a Court Decision. Eksistensi mediasi dalam penyelesaian sengketa perdata di pengadilan diatur dalam Peraturan Mahkamah Agung Republik Indonesia Nomor 1 Tahun 2016 Tentang Prosedur Mediasi Di Pengadilan yang memuat sepuluh prinsip meliputi: mediasi wajib ditempuh, otonomi para pihak, mediasi dengan itikad baik, efisiensi waktu, sertifikasi mediator, tanggung jawab mediator, kerahasiaan, pembiayaan, pengulangan mediasi, kesepakatan perdamaian di luar pengadilan, menjadi bagian dalam integral dalam penyelesaian sengketa di pengadilan. Selain itu mediasi pada pengadilan memperkuat upaya damai sebagaimana yang tertuang di dalam hukum acara Perdata. Tujuan penelitian ini untuk memahami dan menganalisis kekuatan hukum mediasi menurut Peraturan Mahkamah Agung Republik Indonesia Nomor 1 Tahun 2016 Tentang Prosedur Mediasi Di Pengadilan. Kajian ini menggunakan metode penelitian yuridis normatif dengan menggunakan pendekatan perundang-undangan. Hasil penelitian menunjukkan bahwa karena sifatnya yang konsensual dan kolaboratif, maka mediasi selalu menghasilkan penyelesaian sengketa dengan cara sama-sama menguntungkan bagi para pihak (win-win solution) yang dikuatkan menjadi Akta Perdamaian, yang memiliki kekuatan Eksekutorial layaknya Putusan Pengadilan.

scholarly journals On The Issue about The Moment of Incurrence of Right of Cassation Appeal on Civil Cases in Republic of Bulgaria

2017 ◽  
Vol 23 (2) ◽  
pp. 175-180
Author(s):  
Atanas Ivanov
Keyword(s):  
Supreme Court ◽  
Civil Procedure ◽  
Procedure Code ◽  
The Supreme Court ◽  
The Law ◽  
Civil Cases ◽  
The Moment ◽  
The Right

Abstract The right of the party concerned to a cassation appeal is result of specific inspection performed by the Supreme Court of Cassation where examined is the presence of conditions, foreseen in art. 280, par. 1 of Civil-Procedure Code. The right of cassation, however, shall incur from the presence of appellate judgment [1], and not from the specific inspection of Supreme Court of Cassation. The cassation appeal is submitted when the resolution is void, impermissible or inaccurate. This is why the right of cassation appeal is presented and guaranteed by the law opportunity of an individual to oblige Supreme Court of Cassation to rule on the first stage of cassation proceeding - the proceeding on allowing the cassation appeal estimating the statutory criteria in art. 280 of Civil-Procedure Code.

scholarly journals On the issue of violation of the uniformity of judicial practice

2021 ◽  
Vol 39 (3) ◽  
pp. 113-117
Author(s):  
N. Sh. Gadzhialieva ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Legal Status ◽  
Civil Procedure ◽  
Court Decisions ◽  
Judicial Practice ◽  
Procedure Code ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Legislative Changes

The article is devoted to such grounds for the cancellation or amendment of court decisions in the supervisory procedure, as a violation of the uniformity of judicial practice. The author analyzes the provisions of the current civil procedure legislation, the explanations of the Plenum and the Presidium of the Supreme Court of the Russian Federation on the application of paragraph 3 of Article 391.9 of the Civil Procedure Code of the Russian Federation. The article identifies such problems as the lack of normative consolidation of the terms "judicial practice" "unity of judicial practice", the uncertainty of the legal status of acts of the highest judicial instance, the possibility of bringing judges to disciplinary responsibility for violating the unity of judicial practice. Based on the results of the study, the author comes to the conclusion that comprehensive legislative changes are necessary to achieve the unity of judicial practice

JUDICIAL CONCILIATION AND JUDICIAL CONCILIATOR

2021 ◽  
Vol 10 (6) ◽  
pp. 265-293
Author(s):  
E.A. EVTUKHOVICH ◽  
D.G. FILCHENKO
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Civil Procedure ◽  
Procedure Code ◽  
Independent Analysis ◽  
The Supreme Court ◽  
The Status ◽  
The Russian Federation

The article analyzes the provisions of procedural legislation on judicial conciliation and judicial conciliators. The authors review the provisions of several draft laws that contained rules on judicial conciliators. In particular, attention is paid to the projects of the Supreme Arbitration Court of the Russian Federation, projects of the Supreme Court of the Russian Federation, the Concept of a unified civil procedure code. The authors pay attention to the experience of foreign states in the formation of the institution of judicial conciliation procedures. The notion of judicial conciliation is considered in detail, as well as individual consequences of the consolidation of provisions on judicial conciliation in legislation. Authors conducted an independent analysis in order to compare and distinguish between judicial conciliation and mediation. For this, the authors have formulated the necessary criteria. The consequences of the appeal of the parties to the dispute to judicial conciliation are revealed. The specifics of regulating relations in organizing and conducting judicial conciliation, as well as the results of an appeal to judicial conciliation, have been established. Most of the article is devoted to the status of the judicial conciliator. The requirements for it are considered. The features of the position of the judicial conciliator in the organization and conduct of judicial reconciliation are revealed. Attention is paid by the authors to the formation of lists of judicial conciliators. The features of financing the activities of judicial conciliators are noted.

scholarly journals On initiative of Supreme Court of Cassation for amendments to the Civil Procedure Code

2020 ◽  
Vol 58 (3) ◽  
pp. 117-140
Author(s):  
Nikola Bodiroga
Keyword(s):  
Supreme Court ◽  
General Procedure ◽  
Civil Procedure ◽  
Constitutional Court ◽  
Main Role ◽  
Procedure Code ◽  
Legal Remedy ◽  
General Importance ◽  
The Supreme Court ◽  
New Interpretation

The current Civil Procedure Code has been in force since February 1, 2012. Its provisions dealing with a special procedure for the protection of collective interests, provisions regulating legal counsel, and provisions related to deadline for requesting reopening of proceedings have been quashed by the Constitutional Court. Signifi cant changes to the Civil Procedure Code have been passed by the Serbian Parliament in 2014. According to these changes, appeal on points of law has become widely accessible for parties to the proceedings. The threshold for lodging this extraordinary legal remedy has been reduced from 100.000 to 40.000 euros in the general procedure, and from 300.000 euros to 100.000 euros in commercial disputes. Regardless of that threshold, appeal on the points of law has become admissible if the second instance court has reversed the judgment of the first instance court and if the second instance court has adopted appeal, quashed the judgement of the first instance court and decided on the claims of the parties. If these conditions for lodging appeal on the points of law have not been met, a party may lodge an appeal on the points of law if the Supreme Court of Cassation declares this legal remedy admissible in order to unify jurisprudence, or to provide new interpretation of the law, or to consider some other issues of general importance. These legislative changes have turned appeal on the points of law into ordinary legal remedy and prevented the Supreme Court of Cassation to perform its main role in our judicial system. Therefore, the Supreme Court of Cassation has proposed necessary changes to the Civil Procedure Code. In this paper, we have analysed these proposals and their impact on the protection of rights of the parties.

scholarly journals Legal Conclusions Of The Supreme Court On The Application Of The Rules Of Family Law As A Source Of Family Law In Ukraine

2019 ◽  
pp. 109-121
Author(s):  
V.A. Vatras
Keyword(s):  
Supreme Court ◽  
Family Law ◽  
Civil Procedure ◽  
Scientific Article ◽  
Applicable Law ◽  
Procedure Code ◽  
The Supreme Court ◽  
Legal Opinions ◽  
Supreme Court Rulings ◽  
Legal Opinion

The scientific article is devoted to the study of the legal nature of the Supreme Court’s legal conclusions regarding the application of family law rules and their place in the system of family law sources of Ukraine. The views of Ukrainian and foreign legal scholars on this issue are analyzed, as well as the legislative regulation of this issue, a number of examples of the Supreme Court’s legal positions are highlighted. It is substantiated that the Supreme Court’s legal conclusions on the application of family law are a source of family law because they have the properties of a source of law: binding on all bodies, including courts applying the applicable law (except physical and legal persons not bound by a legal opinion, albeit in court, but which may invoke it to substantiate their position; the courts may also withdraw their opinion in accordance with the procedure laid down in Articles 403 and 404 of the Civil Procedure Code of Ukraine) regulatory, availability, formality and publicity, legality, ensuring the means of state coercion, law-making significance. It is also determined that the legal position of the Supreme Court exists in the form of a specific legal order, which has a corresponding official form of expression and consolidation, law­making significance. In the system of family law sources issued by the courts, legal opinions on the application of family law rules as issued by the highest authority in the system of courts of general jurisdiction are hierarchically above the acts of local and appellate courts, as well as other Supreme Court rulings after the adoption of the resolution containing the relevant legal opinion, except in cases of deviation from it in accordance with Art. 403 of the Civil Procedure Code of Ukraine. Legal positions can actually get legal expression not only in the decisions of the Supreme Court, but also the decisions of the Plenum of the Supreme Court.

scholarly journals Unification of the Case-law within the Civil Procedure System of Romania

2021 ◽  
Vol 5 (2) ◽  
pp. 87-100
Author(s):  
Laura Cristina Carcia
Keyword(s):  
Supreme Court ◽  
National Level ◽  
Case Law ◽  
Civil Procedure ◽  
Legal Practice ◽  
Legal Norms ◽  
Procedure Code ◽  
The Supreme Court ◽  
Lower Courts ◽  
Extraordinary Means

The present article contains the main legal practice unification mechanisms, as regulated by the Romanian legislator in accordance with the current Civil Procedure Code, as well as those partaking to the Supreme Court jurisprudence in conjuncture with the lower courts by granting a uniform settlement on the legal issues comprised by the litigations referred to. The presentation starts off with the referral in the interest of the law, a traditional instrument within the national civil procedure legal sphere of activity, it continues with the notification of the Supreme Court for settling certain legal matters, a novelty at national level and of whose practical utility has already been recognised, and it ends by making reference to the second appeal, as an extraordinary means of challenge, with a relatively reduced efficiency, at present, in settling the different interpretations of the legal norms.

scholarly journals Direito constitucional de recorrer e a judicialização da ineficiência empresarial

2017 ◽  
Vol 18 (2) ◽  
pp. 421-432
Author(s):  
Joaquim Falcão ◽  
Ivar Hartmann
Keyword(s):  
Supreme Court ◽  
Success Rate ◽  
Rights Protection ◽  
Consumer Rights ◽  
The Supreme Court ◽  
Small Claims

Resumo: A judicialização das questões consumeristas atinge o Supremo Tribunal Federal por via dos juizados especiais há vários anos. Recentemente uma empresa do ramo de telefonia, a Oi, destacou-se pelo volume desproporcional de processos que levou ao tribunal. Ao analisar o perfil da litigância de direito do consumidor da Oi no Supremo, identificamos que a empresa envia o dobro de processos do segundo colocado no ranking de maiores litigantes, apesar de ter taxa de sucesso menor do que 0,07%. No contexto da necessidade de adequada proteção dos direitos do consumidor, esse comportamento pode ser caracterizado como bullying processual e demanda novas atitudes por parte dos órgãos reguladores e do próprio Supremo.Palavras-chave: Direito do consumidor. Judicialização. Supremo Tribunal Federal. Abstract: The consumer rights lawsuits have reached the Brazilian Supreme Court through small claims courts for years. Recently, one phone company, Oi, stood out for the disproportional number of appeals it took to the court. We found that Oi brought double the number of appeals of the second most frequent appellant in consumer rights at the Supreme Court, even though Oi’s success rate is lower than 0,07%. In the context of appropriate consumer rights protection, this behavior can be characterized as lawsuit bullying and calls for a new attitude by the regulating agencies and the Supreme Court itself.Keywords: Consumer rights. Lawsuits. Brazilian Supreme Court.

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