Autorytarne formy władzy a realizacja prawa do cywilnoprawnej ochrony prawnoprocesowej przez obywateli w okresie PRL

The study describes the functions of civil procedure as a legal instrument from the times of the socialist authoritarian state of the People’s Republic of Poland. The positions expressed in the doctrine regarding the purpose and principles of conducting civil proceedings, regulated in the Act of 16 November 1964, Code of Civil Procedure, which was adopted during the authoritarian power of the dominant political party of the Polish United Workers’ Party, were presented. Provisions of procedural law, dating back to the authoritarian rule of democratic socialism in the People’s Republic of Poland, were intended to provide protection for the socialized economy and to enable the state to control civil-law relations. Civil proceedings were intended to guarantee the possibility of protecting not only the rights of the individual, but also, or rather first and foremost, of the units of the socialized economy, as well as of the disputes that might arise in connection with relations between the state and its citizens, and between citizens. This principle required the authorities conducting civil proceedings to ensure adequate legal and procedural protection in the event that a party or participant in the proceedings was a unit of the socialized economy. Civil proceedings in which the court, within its powers, could interfere with the legal sphere of an individual in connection with the conferral of discretionary power, was another legal tool and instrument allowing the state to influence private-law relations. In addition, the authoritarianism of the state power at that time was also manifested in this.

An Overview of the Civil Procedure and Court System of Netherlands

When it comes to Dutch law, the initiation of civil litigation, there are just a few cases in the Netherlands. This is due to the harmonized Dutch culture. Therefore, compared to other European countries, the number of lawyers and judges per capita in the Netherlands is small. In this scientific paper, we will make an overview of the civil judicial organization, the types of civil proceedings, the obligation to represent the civil cases in the court through a lawyer, legal aid and also in more detail we will focus on the main stages of the civil trial as well as the conditions that must be met before initiating civil proceedings. We will analyze in detail the fact that in the Dutch Law, the defendant may deny the right to judicial reconciliation with the plaintiff, before initiating the proceedings and that it is also preferable in Dutch Law, that the opposing party is summoned to fulfill its obligations within a certain period. If without respecting this method, the court procedure is initiated, the court costs may be attributed to the initiator of the procedure, i.e the plaintiff. Except for proceedings before judges from subordinate regions in Dutch law, the general rule is that the proceedings must be presided over by the plaintiff's attorney (procurator litis) and by a lawyer selected from the list of attorneys registered with the Association. In this scientific paper, we will also pay special attention to the temporary legal protection and special procedures and we will also focus on the judgments and legal remedies in Dutch law.

Wpływ braku uznania rządu państwa totalitarnego i autorytarnego na zdolność sądową tego państwa w świetle koncepcji brytyjsko-amerykańskich

Although government recognition is a legal concept of public international law, it interacts with other branches of law, including private international law and international civil procedure. According to the jurisprudence of British and American courts, unrecognized governments do not possess locus standi in civil proceedings in regard to matters which fall within the state dominium. In the mentioned jurisprudence, a doctrine has been formulated according to which judges are bound by the position of their state executive bodies in regard to foreign state and government recognition, which has direct influence on the locus standi of foreign states in the courts of Britain and the United States. The aim of this paper is to present the above rulings, as well as to analyze whether there are grounds for accepting the doctrine which follows from them in Polish civil litigation.

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

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.

CLASS ACTIONS IN CIVIL PROCEDURE: ENFORCEMENT ISSUES

The issues of legal regulation and the first experience of law enforcement of class actions on the example of chapter 22.3 of the Civil Procedure Code of the Russian Federation are considered. Despite the generally unified legal regulation of class proceedings in arbitration and civil proceedings, in the practice of courts of general jurisdiction there are specific issues that need to be addressed. In article value of unity of all conditions of qualification of the declared requirements as the class action is underlined, and also consequences of non-compliance of conditions of certification are revealed. Attention has been drawn to the necessity of application of the general rules of action proceedings along with the special rules of chapter 22.3 of the Civil Procedure Code of the Russian Federation in consideration of class actions. Also within the framework of this study the author concludes that each new legal institute raises a number of controversial issues in the process of law enforcement. And that is why it is very important to refer to the general provisions of the Civil Procedure Code of the Russian Federation, developed under the guidance of Professor M.K. Treushnikov, which allow to find the best solution for this or that problem of legal regulation and law enforcement.

NECESSARY (COMPULSORY) EVIDENCES IN CIVIL PROCEDURE

In this article, the author examines the concept and procedural and legal significance of necessary (mandatory) forensic evidence. It analyzes the formulated by M.K. Treushnikov, who was the first in the procedural doctrine who paid attention to the legal obligation to use certain means of proof when establishing certain legal facts, the positive rule of admissibility of evidence, the positions of other authors on the issue of necessary evidence in civil proceedings. The rule of necessary (obligatory) evidence is considered as a special rule of judicial proof. At the end of the study it is concluded that the allocation of necessary evidence is carried out from the same content of factual data, reflecting the same fact, based on the peculiarities of their procedural form. Necessary evidence in its form is a specific type of a written document or expert opinion. Thus, the rule of proving the circumstances of the case with the use of necessary evidence concerns the form of evidence, beyond its content. The thesis is also put forward that necessary evidence, due to the specifics of the procedure for its formation, the presence of requirements established by law to its form and content, has a significant evidentiary value.

THE STANDARD OF PROOF UNDER LITHUANIAN AND RUSSIAN CIVIL PROCEDURE LAW: A COMPARATIVE ANALYSIS

The article is dedicated to the memory of Professor M.K. Treushnikov. The professor was the head of the candidate of law thesis of the author of the article, therefore, the beginning of the article is devoted to the author’s memories of M.K. Treushnikov. Since the main field of scientific research of M.K. Treushnikov is related to evidence and proof in civil proceedings, the main part of the article is devoted to the issues of the standard of proof. On the basis of the comparative method the author analyses how the approach to the standard of proof in Lithuania and Russia changed after 1990, both in legal doctrine and case law. It is concluded that there are many similarities in the standard of proof between Lithuanian and Russian civil procedure law, but there are also differences, which are due both to different legal doctrine approaches to this issue and to different case law. In particular, the author points out that there must be common standards for such cognitive, logical activity, which exist regardless of the legal system operating in one state or another, for there is only one logic.

ON EVIDENCE AND PROOF IN CIVIL PROCEDURE (IN MEMORY OF PROFESSOR M.K. TREUSHNIKOV)

Proof and evidence reflect the quintessence of civil procedure; this is the “litmus test”, which inevitably and clearly shows the effectiveness (or ineffectiveness) of basic principles, efficiency (or ineffectiveness) of the legislative paradigm of civil procedure, predictive function of science. It is no coincidence that the problems of proof and evidence-including in their traditional hypostasis-have always been the focus of attention of prominent domestic proceduralists, beginning in the 19th century. A pleiad of Russian pre-revolutionary scholars who turned their eyes to forensic evidence – E.V. Vaskovskii, A.Kh. Golmsten, K.I. Malyshev, E.A. Nefediev, B.V. Popov, – which is continued in the 20th century by S.N. Abramov, A.F. Kleinman, S.V. Kurylev, P.P. Gureev, L.P. Smyshliaev, Ia.L. Shtutin, and K.S. Iudelson (we do not aim to name all names) is brilliant. And not coincidentally, we believe, the problems of judicial proof and judicial evidence became the core of scientific research and achievements of Professor M.K. Treushnikov, who continued the best traditions of domestic jurisprudence and formulated the basis of the modern evidential paradigm in civil proceedings, which was legislatively reflected in the 2002 Civil Procedure Code of the Russian Federation.

IN NOVUM RESTRICTION IN LITHUANIAN CIVIL PROCEDURE LAW

This article examines a relatively new institute of Lithuanian civil proceedings – legal restrictions on the late submission of evidence in both first instance and appellate courts. These restrictions were first established in the new Civil Procedure Code (CPC) which was adopted by Seimas of the Republic of Lithuania on 28 February 2002 (entered into force on 1 January 2003). Until then such restrictions in Lithuanian civil procedure law were not known from the time of famous Statutes of the Grand Duchy of Lithuania. Therefore, it seems natural that this innovation has paved the way for its real application in the courts for more than a decade. This article provides a consistent analysis of the case law (starting with the rulings of the Supreme Court of Lithuania in which the restrictions established in the law were practically denied, and up to the rulings of the last year, which already recognized the right of the courts in certain cases to refuse to accept evidence which was submitted too late). This article also reveals the aims of the CPC authors which were aimed at establishing the first instance court’s right to refuse to accept evidence which was submitted too late and system of limited appeal which establishes a general prohibition (with certain exceptions) to present evidence that was not examined in the court of first instance. One of the most important aims is the concentration of the proceedings, the prevention of abuse of procedural rights and the establishment of the first instance as the main judicial instance. The appeal procedure in the new CPC is already regarded not as a repetition or continuation of the proceedings at first instance, but as a review of the legality and validity of an existing, albeit unenforced, decision of the court of first instance. The author acknowledges that although it took a long time for the relevant provisions of the law to be actually applied in the case law, today their application is already noticeable in the daily work of courts. This leads to the conclusion that Lithuanian courts have adapted to the new CPC system and its philosophy.

Ewolucja cywilnych postępowań nakazowych i upominawczych w kierunku respektowania wymogów demokratycznego państwa prawnego

Although writ proceedings in the Polish civil proceedings have been in operation since the beginning of the modern Polish civil process, there are still controversies in the aspect of fairly structured court proceedings. The defendant may be convinced that their procedural rights have been violated. It is a consequence of considering the case without prior notification of the defendant about the initiation of the proceedings. In such an approach, the judiciary may be perceived as not respecting the standards of a democratic state ruled by law. At the same time, to be closer to the notions of a totalitarian or authoritarian state, because it is not the procedural rights of an individual that are primary, but the effectiveness of the authorities’ actions. However, the concerns about the order for payment mechanism are unfounded as long as the model in which the order for payment is applied complies with the necessary requirements. First, the public authority deciding the case should have the attribute of impartiality. It is not necessary that payment orders are issued by a court. However, if the case is not heard by the court, the judicial control of such decisions is necessary. Second, the evidence should not be assessed. The presentation of specific evidence may, however, be a necessary condition for issuing an order for payment. The issue of the public body examining cases is related to the issue of evidentiary proceedings. These two elements define the nature of the order for payment by defining a procedure model. Finally, it should be pointed out that the order mechanism in a democratic state ruled by law should only supplement the examination of cases in ordinary proceedings (or separate proceedings distinguished by the party types). If the number of cases examined in separate proceedings is significant, and even more so if this way of dealing with cases prevails, ordinary proceedings may be merely an illusion. If in a significant number of cases simplified procedures leading to issuing an order for payment are applied, procedural guarantees related only to ordinary proceedings are irrelevant in such cases.