Suchergebnisse

Since Estonia regained its independence on 20 August 1991 Estonian civil procedure has been gradually developed from the civil procedure of Estonian SSR to the modern civil procedure rules in force today. The current code of civil procedure was adopted on 20 April 2005 and came into force in 1 January 2006. Since coming into force several changes have been made to the current code with significant changes coming into force on 1 January 2009. Estonian civil procedure is mainly based on the adversarial principle, except for some specific cases and proceedings on petition where the inquisitorial principle is used. Deriving from this the parties are in most cases free to decide on what evidence to submit and whether to submit evidence at all. While the court may ask the parties to submit evidence, they are not required to do so. The situation is different in cases based on the inquisitorial principle. Estonian civil procedure does not impose many restrictions as to the kind of evidence that can be submitted. Virtually anything that can be reproduced in some way may be submitted as documentary evidence and any person who has knowledge about the facts of the case may be heard as a witness. Even the parties may be heard under oath. The Estonian Code of Civil Procedure does not set out many rules on how to evaluate the evidence submitted. The basic rule is that the court has to assess the evidence impartially and as a whole and not give any preference to any particular piece of evidence.

Intro -- EXTRATERRITORIAL APPLICATION OF U. S. CRIMINAL LAW POLICIES AND PROPOSALS -- EXTRATERRITORIAL APPLICATION OF U. S. CRIMINAL LAW POLICIES AND PROPOSALS -- CONTENTS -- PREFACE -- Chapter 1 EXTRATERRITORIAL APPLICATION OF AMERICAN CRIMINAL LAW* -- SUMMARY -- INTRODUCTION -- CONSTITUTIONAL CONSIDERATIONS -- Legislative Powers -- Constitutional Limitations -- Statutory Construction -- International Law -- Current Extent of American Extraterritorial Criminal Jurisdiction -- Federal Law -- Express -- Maritime Drug Law Enforcement Act -- Implied -- State Law -- Investigation and Prosecution -- Mutual Legal Assistance Treaties and Agreements -- Letters Rogatory -- Cooperative Efforts -- Search and Seizure Abroad -- Self-Incrimination Overseas -- Statute of Limitations: 18 U.S.C. 3292 and Related Matters -- Extradition -- Venue -- Testimony of Overseas Witnesses -- National Security Concerns -- Admissibility of Foreign Documents -- CONCLUSION -- ATTACHMENTS -- Federal Criminal Laws Which Enjoy Express Extraterritorial Application -- Special Maritime & Territorial Jurisdiction -- Special Aircraft Jurisdiction -- Treaty-Related -- Others -- Federal Crimes Subject to Federal Prosecution When Committed Overseas -- Homicide -- Kidnaping -- Assault -- Property Destruction -- Threats -- False Statements -- Theft -- Counterfeiting -- Piggyback Statutes -- Model Penal Code -- Restatement of the Law Third: Foreign Relations Law of the United States -- 18 U.S.C. 7. Special Maritime and Territorial Jurisdiction of the Untied States (Text) -- 18 U.S.C. 3261. Military Extraterritorial Jurisdiction (Text) -- BIBLIOGRAPHY -- Books and Articles -- Notes and Comments -- End Notes -- Chapter 2 CIVILIAN EXTRATERRITORIAL JURISDICTION ACT: FEDERAL CONTRACTOR CRIMINAL LIABILITY OVERSEAS -- SUMMARY -- INTRODUCTION -- BACKGROUND

The following text deals with the general principles and legal rules regarding evidence and evidence taking in the Portuguese legal system. Based on the rules foreseen in legal texts, as well as court decisions and national literature, the authors approach the general theory behind the current rules and notions in force while also referencing the specifications of the means of proof in use in legal practice.

This work presumes to be an introduction for the foreign reader to Spanish regulations in regard to evidence. It has been structured following a classic design in the Spanish academic literature with the aim to approach the reader to the Spanish legal way of thinking. With the same goal it a starting Chapter that analyzes the different principles that lead Spanish Civil Procedure has been included.

Danish civil procedure is based on a number of procedural law principles that affect the taking of evidence, including the principle of party presentation, the principle of disposition, and the principle of free assessment of evidence. The nature of Danish procedural law tends towards the adversarial model rather than the inquisitorial model. Evidence is taken during the hearing and the principle of directness applies to the procedure. Danish civil procedure is governed by the 1916 Administration of Justice Act, which was originally strongly influenced by German law. The role of the judge is to lead the process and also to intervene in proceedings when uncertainty exists, rather than just to facilitate the process by ensuring the parties abide by the laws of civil procedure.

The article deals with the theoretical and practical problems of the institute of the court orders due to the Commercial Procedural Code of Ukraine.Thistopic isrelevant,since in cases where there is a procedural need forthe implementation of judicial actions abroad, the procedural actions outside their country can be carried out only in the form of a letter rogatory according to a certain procedure. Therefore, the purpose of this article is to identify problems in the implementation of the provisions of procedural legislation on the execution of letters rogatory by institutions of foreign states and to develop proposals for improving the legal regulation of this area.The author analyzes the procedures and methods of transmission request (court order) for legal assistance, especially the confirmation of implementation deadline orders.The author used methods of analysis and synthesis, materials of domestic judicial practice. It was revealed that the order of the economic courts of Ukraine to institutions of foreign states is included in the procedure of international legal assistance in civil and economic (commercial) cases. It was revealed that the letter rogatory procedure, on the one hand, relieves the courts, delegates certain of their powers to foreign courts and other bodies. On the other hand, this does not promote the prompt consideration of the case in economic courts. At the same time, such instructions can be returned to the court that gave these instructions to correct the shortcomings. And all this time the consideration of the case will be suspended.It was proposed to establish a time-limit for the suspension of proceedings in the case in the event of a reference with a letter rogatory for legal assistance or the handing of a subpoena or other documents to a foreign court or other competent authority of a foreign state. Moreover, such a time-limit should be counted from the moment such a letter rogatory is directly sent abroad. Thus, a judge can renew proceedings on a case even without removal the circumstances that caused its suspension, but simply after the expiry of the period that was determined at the time of the suspension of the case, which will contribute to the promptness of the consideration of cases in courts. ; В статье проанализированы теоретические и практические проблемы института судебных поручений по действующему Хозяйственному процессуальному кодексу Украины. Проанализированы процедура и способы передачи запроса (судебного поручения) об оказании правовой помощи, особенности подтверждения о выполнении, срок исполнения поручения. Результатом исследования стало внесение предложений по изменениям и дополнениям к действующему законодательству Украины. ; У статті проаналізовані теоретичні та практичні проблеми інституту судових доручень за чинним Господарським процесуальним кодексом України. Проаналізовано процедуру та способи передачі запиту (судового доручення) про надання правової допомоги, особливості підтвердження щодо виконання, строк виконання доручення. Результатом дослідження стало внесення пропозицій щодо змін і доповнень до чинного законодавства України.

The article deals with the theoretical and practical problems of the institute of the court orders due to the Commercial Procedural Code of Ukraine.Thistopic isrelevant,since in cases where there is a procedural need forthe implementation of judicial actions abroad, the procedural actions outside their country can be carried out only in the form of a letter rogatory according to a certain procedure. Therefore, the purpose of this article is to identify problems in the implementation of the provisions of procedural legislation on the execution of letters rogatory by institutions of foreign states and to develop proposals for improving the legal regulation of this area.The author analyzes the procedures and methods of transmission request (court order) for legal assistance, especially the confirmation of implementation deadline orders.The author used methods of analysis and synthesis, materials of domestic judicial practice. It was revealed that the order of the economic courts of Ukraine to institutions of foreign states is included in the procedure of international legal assistance in civil and economic (commercial) cases. It was revealed that the letter rogatory procedure, on the one hand, relieves the courts, delegates certain of their powers to foreign courts and other bodies. On the other hand, this does not promote the prompt consideration of the case in economic courts. At the same time, such instructions can be returned to the court that gave these instructions to correct the shortcomings. And all this time the consideration of the case will be suspended.It was proposed to establish a time-limit for the suspension of proceedings in the case in the event of a reference with a letter rogatory for legal assistance or the handing of a subpoena or other documents to a foreign court or other competent authority of a foreign state. Moreover, such a time-limit should be counted from the moment such a letter rogatory is directly sent abroad. Thus, a judge can renew proceedings on a case even without removal the circumstances that caused its suspension, but simply after the expiry of the period that was determined at the time of the suspension of the case, which will contribute to the promptness of the consideration of cases in courts. ; В статье проанализированы теоретические и практические проблемы института судебных поручений по действующему Хозяйственному процессуальному кодексу Украины. Проанализированы процедура и способы передачи запроса (судебного поручения) об оказании правовой помощи, особенности подтверждения о выполнении, срок исполнения поручения. Результатом исследования стало внесение предложений по изменениям и дополнениям к действующему законодательству Украины. ; У статті проаналізовані теоретичні та практичні проблеми інституту судових доручень за чинним Господарським процесуальним кодексом України. Проаналізовано процедуру та способи передачі запиту (судового доручення) про надання правової допомоги, особливості підтвердження щодо виконання, строк виконання доручення. Результатом дослідження стало внесення пропозицій щодо змін і доповнень до чинного законодавства України.

Under the Article 22 of the Slovenian Constitution the right to equal protection of rights guarantees the right to state the facts and submit evidence, the right to be present at the taking of evidence and to be informed on the results of the taking of evidence. The principle of free assessment is a fundamental principle in Slovenian civil procedure included in Article 8 of the CPA. In the system of free assessment the judge is the one to evaluate the evidence without being bound by any formal rules on probative value of certain evidence. Probative value depends only on individual belief or conviction of the trial judge in each matter separately. The free assessment of evidence is the right and duty of the court to assess each piece of evidence separately and collectively. In the evidence-taking stage the CPA includes the special rules for each type of evidence, meant as a minimum guarantee for the right free assessment of the taken evidence and the free assessment of evidence presupposes that the evidence were taken by this rules. Even though, court decides which evidence will be produced for determination of the ultimate facts, the court is bound by the parties' right to propose evidence – with their procedural burden of proof. If the court rejects the proposal of a certain piece of evidence this rejections must be explained. In the following book the author discusses the key principles of the law of evidence in Slovenian civil procedure. The book provides analysis of the law of evidence, while placing the subject within its theoretical context. The subject is presented in a logical structure following on from the introduction of the basic principles through the rules for burden of proof, types of evidence, costs of evidence, the question of unlawful evidence, and the cross-border taking of evidence.

Intro -- Pleadings, Minutes of Public Sittings and Documents -- Copyright -- Dedication -- Table of Contents - Table des Matières -- INSTITUTION OF PROCEEDINGS - INTRODUCTION DE L'INSTANCE -- APPLICATION OF THE REPUBLIC OF PANAMA, SUBMITED ON 17 DECEMBER 2015 -- PLEADINGS - MÉMOIRES -- WRITEN PRELIMINARY OBJECTIONS UNDER ARTICLE 294, PARAGRAPH 3, OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, SUBMITED BY ITALY ON 11 MARCH 2016 -- Annexes A to P -- Annex A: Application of the Republic of Panama dated 16 November 2015 (reproduced under Institution of Proceedings above, see p. 3) -- Annex B: (Confidential) Judgment by the Tribunal of Savona, 13 March 2003 (in Italian) (not reproduced) - English translation (not reproduced) -- Annex C: (Confidential) Seizure order by the Public Prosecutor of the Tribunal of Savona, 11 August 1998 (in Italian) (not reproduced) - English translation (not reproduced) -- Annex D: (Confidential) International Letters Rogatory of the Tribunal of Savona to the Spanish Authorities, 11 August 1998 (in Italian) (not reproduced) - English translation (not reproduced) -- Annex E: Report of the seizure by the Spanish Authorities, 25 September 1998 (in Spanish) (not reproduced) - English translation -- Annex F: Letter sent by Mr Carreyó to the Italian Minister of Foreign Affairs, 15 August 2001 -- Annex G: Letter sent by Mr Carreyó to the Italian Minister of Foreign Affairs, 7 January 2002 (in Italian) (not reproduced) - English translation -- Annex H: Letter sent by Mr Carreyó to the Italian Embassy in Panama, 6 June 2002 (in Spanish) (not reproduced) - English translation -- Annex I: (Confidential) Communication to the Spanish Authorities of the judgment of 13 March 2003, 18 March 2003 (in Italian) (not reproduced) - English translation (not reproduced)

This report outlines the rules on the taking and using of evidence in Austrian civil procedure law. On the basis of principles such as the free disposition of parties, the attenuated inquisitorial principle or the principles of orality and directness, the judge and the parties form a "working group" when investigating the matter in dispute. The Austrian concept of an active judge, however, goes along with the judge's duty to do case-management and especially to induce a truthful fact-finding using judicial discretion. While only five means of proof (documents, witnesses, expert opinions, evidence by inspection and the examination of parties) are explicitly listed the Austrian civil procedure code, there is no numerus clausus regarding the means of evidence. Evidence may be freely assessed by the judge.

Transnational organized crime has an adverse impact on the United States and the People's Republic of China. In the last thirty years, the mutual legal assistance agreement has emerged as an effective mechanism to streamline international judicial assistance in combating borderless crime. The accretion of these agreements has created a growing web of bilateral obligations that links sovereign jurisdictions. The U.S.-P.R.C. mutual legal assistance agreement (the "U.S.-P.R.C. MLAA") furthers U.S. interests by facilitating U.S. Attomeys' access to physical evidence and witnesses in the People's Republic of China. Significantly, the political offense exception in the U.S.-P.R.C. agreement permits U.S. authorities to avoid complicity in Chinese prosecutions of political dissidents and religious minorities. Missing from these arrangements, however, is consideration of U.S. constitutional safeguards that should accompany the expanded power of U.S. law enforcement abroad. While prosecutors can exchange evidence directly under the U.S.-P.R.C. MLAA, defendants must resort to discretionary access to evidence abroad under the antiquated letters rogatory system. This imbalance may infringe on the defendant's right to compulsory process. Given the very broad "state secrets" exception under Chinese law, defendants may be unable to obtain exculpatory evidence from the People's Republic of China. The defendant's right to confrontation may also be compromised in the Chinese context. The widely acknowledged Chinese police practice of coercion of the accused and incarcerated may stifle truthfulness, undermining the genuine opportunity for defense counsel to reliably cross-examine a Chinese witness in police custody. By allowing defendants in U.S. criminal proceedings more reliable access to evidence in the People's Republic of China under the U.S.-P.R.C. MLAA framework, the protection of U.S. constitutional rights to compulsory process would be enhanced.

Transnational organized crime has an adverse impact on the United States and the People's Republic of China. In the last thirty years, the mutual legal assistance agreement has emerged as an effective mechanism to streamline international judicial assistance in combating borderless crime. The accretion of these agreements has created a growing web of bilateral obligations that links sovereign jurisdictions. The U.S.-P.R.C. mutual legal assistance agreement (the "U.S.-P.R.C. MLAA") furthers U.S. interests by facilitating U.S. Attomeys' access to physical evidence and witnesses in the People's Republic of China. Significantly, the political offense exception in the U.S.-P.R.C. agreement permits U.S. authorities to avoid complicity in Chinese prosecutions of political dissidents and religious minorities. Missing from these arrangements, however, is consideration of U.S. constitutional safeguards that should accompany the expanded power of U.S. law enforcement abroad. While prosecutors can exchange evidence directly under the U.S.-P.R.C. MLAA, defendants must resort to discretionary access to evidence abroad under the antiquated letters rogatory system. This imbalance may infringe on the defendant's right to compulsory process. Given the very broad "state secrets" exception under Chinese law, defendants may be unable to obtain exculpatory evidence from the People's Republic of China. The defendant's right to confrontation may also be compromised in the Chinese context. The widely acknowledged Chinese police practice of coercion of the accused and incarcerated may stifle truthfulness, undermining the genuine opportunity for defense counsel to reliably cross-examine a Chinese witness in police custody. By allowing defendants in U.S. criminal proceedings more reliable access to evidence in the People's Republic of China under the U.S.-P.R.C. MLAA framework, the protection of U.S. constitutional rights to compulsory process would be enhanced.

The French Law of evidence is at the crossroad between procedural law and civil law. As part of the procedural law, it is governed by general principles set out by the Code de procédure civile, such as the contradictory principle, the principle of public hearing or the free disposition principle, which means that the parties define the framework of the proceeding and that the judge cannot base his decision on facts that were not put forward by the parties themselves. It is also the Code de procédure civile that organises the respective roles of the judge and the parties for the taking of evidence: since 1976, it imposes a – rather complex – balance between adversarial and inquisitorial principles. Other general principles were set by case law, e.g. the principle that no one can pre-constitute evidence in his own favour or the principle of fair evidence. On the other hand, more substantive rules are to be found in the Code civil. These rules mix two systems, the system of the preuve morale, applicable in some specific litigation, and the system of the preuve légale, which is clearly dominant in civil litigation. In the first system, evidence is in principle free, which means not only that any mode of proof is admissible, but also that assessment of evidence by the judges is free. In the second one, only determined means of evidence are admissible and their probative force is often set out by law. A majority of evidence rules derive more or less directly from this summa divisio. In fact, the predominance of the preuve légale system has made the French system of evidence rather rigid, in particular regarding the exaggerated importance of written evidence.

This book portrays evidence and gathering of evidence under the current Croatian regulation relating to evidence and in practice. In this context, the author first analyses the fundamental principles of Croatian civil procedure and law of evidence. Then, the general principles of evidence and gathering of evidence are discussed, as well as the general rule on the burden of proof. The question of gathering of evidence through modern technology (videoconferencing, etc.) in the Croatian law and practice is also discussed. Separate parts of this book contain the analysis of means of proof regulated by the Croatian Civil Procedure Act: inspection of object ('view'), documents, witness testimony, expert testimony, and party testimony. The rules on costs caused by gathering of evidence, including the costs for translation are analysed, as well as the rules on language. The concepts of illegally obtained evidence and illegal evidence in the Croatian law and practice are discussed. This volume contains the report about the Council Regulation (EC) No 1206/2001 and the multilateral and bilateral legal assistance treaties to which Croatia is a party. There are several appendices to this book: a table of authorities according to the Regulation No 1206/2001, and relevant sources of Croatian civil procedure, table of case law on evidence, table portraying a ordinary/common civil procedure timeline, table referring to legal interpretation in the Croatian legal system, and comparative tables focusing on functional differences between national regulation, bilateral legal assistance treaties, multilateral treaties, and Council Regulation (EC) No 1206/2001 on taking of evidence by hearing of witnesses. This book is a result of the Dimensions of Evidence in European Civil Procedure research project commissioned by European Commission, Directorate-General Justice.