Hasil untuk "Civil law"

Hassan Hussein Elbarrawy

M. I. MYKHAILIUK

Dunja Milotić

Vilnius University Faculty of Law, Laurynas Didžiulis

S.V. Tretyakov

This is a theoretical reconstruction of the Russian prominent civil law scholar O.S. Ioffe’s conception of subjective right. O.S. Ioffe’s conception has its doctrinal origins in the imperative theory of law, namely, its German version of August Thon. O.S. Ioffe’s conception of subjective right is classified as the most significant variant of the analytical reduction of subjective right to Anspruch (a German equivalent of the Hohfeldian claim-right). Basic strengths and weaknesses of O.S. Ioffe’s theory have been demonstrated. Although O.S. Ioffe’s reductionism has significant theoretical flaws and fails to explain the concept of subjective right, it has had a longstanding positive impact as the most sophisticated and rigorous alternative to the dominant conception of S.N. Bratus.

Korean Association Of The Law Of Civil Procedure, 영환 정

Comparative civil procedure scholars often encounter foreign civil procedure different from their own. To understand and translate terminology of the foreign civil procedure have been challenges. For such work, analyzing functions and roles of the specific procedure is crucial. ‘Removal’ in U.S. civil procedure is one example of such foreign procedure. This article examines procedural aspects of the removal. Part II of this article reviews concept, definition, and grounds of removal by comparing it with transfer and remand that have similar functions. Part III examines i) party-related requirements of removal; ii) claim-related requirements; and iii) timing of filing notice of removal. Part IV looks into the procedure of removal with more details; and Part V describes effects of removal. In Part VI, based on functions and roles of removal in U.S. civil procedure, this article provides suggestions for Korean civil procedure with regard to enhancing defendants’ defenses in choice of jurisdiction. Such recommendations include i) recognition of the parties’ right to move for transfer when the litigation is filed at a court that does not have a jurisdiction; and ii) ways to use transfer of civil litigations more actively in intellectual property cases. This article provides an opportunity to contemplate on what to learn from foreign civil procedure to improve Korean counterpart.

Korean Association Of The Law Of Civil Procedure, 원태 김

In family non-litigation cases, the principle of disposition is limited throughout the initiation of the procedure, the specification of the subject of judgment, and the termination of the procedure. As family non-litigation cases are extremely diverse, it is needed to review the principle of disposition and its limitation issues individually and specifically by the case. It is no subject of uniform judgment. This study thus set out to review several issues regarding the principle of disposition and its limitation in family non-litigation procedures individually by the case according to the order of the initiation of the procedure, the subject and scope of judgment, and the termination of the procedure. The scope of the research was extended to the regulations to be added to the whole amendment proposition of Family Litigation Act as well as the regulations of the current law. The principle of disposition is limited to some degree in the initiation of the procedure to guarantee the public interest of a case even in family non-litigation cases with the other party as well as those with no other party. Traditionally, the non-litigation procedure emphasizes the guardianship nature or discretion of the court and adopts the ex officio principle, which explains why the court is not restricted by the request of the concerned party. There is no thinking of the binding force of the purport of claim in a procedure initiated by the authority of the court. Even in family non-litigation procedures initiated by a claim, however, the principle of disposition still applies, which means that the court is restricted by the purpose of claim and cannot make a qualitatively different type of judgment from the claim. The court is, however, allowed to run a trial over its scope in a matter of degree in certain cases without being restricted by the purpose of claim. In this viewpoint, the principle of disposition is limited. The Family Litigation Act in force poses no particular limits to the withdrawal of request for trial. Its amendment proposition includes special regulations(Article 61 of Amendment Proposition) that certain cases including guardianship cases can withdraw a request for trial only after getting permission from the family court on the premise of free withdrawal of a request. In this sense, the amendment proposition seems to limit the principle of disposition relatively broadly in relation to request withdrawal in family non-litigation cases.

A.A. GLUSHETSKY

Joachim Zekoll

This essay will first examine the attempts to categorize and label procedural systems, an impulse that many comparatists cannot, but should, resist because the very exercise of creating categories invites undue generalizations. The focus will then shift to procedural harmonization, a term that encompasses a number of topics of increasing importance to proceduralists. This section forms the centrepiece of the essay because it is here that most opportunities to benefit from comparative scholarship present themselves—and are still being missed. After illustrating the dynamics and results of regional, particularly European, and supra-regional harmonization initiatives, this section identifies trends towards harmonization through private rule making and examines principles that determine the scope of, and limits to, procedural harmonization. The final section addresses the growing concern about access to justice, specifically cost considerations and claim aggregation techniques, which prompt the somewhat related questions of whether and to what extent one legal system can borrow procedural rules from another one.

L.I. Kulitskaya

Head of the Department of Civil Law and Procedure of the Baikal State University, PhD (Law), Associate Professor, Yulia V. Vinichenko

Yaëll Emerich

Ejan Mackaay

송재일

Aust Anthony

Elmer R. Rusco

Hugh T. Scogin Jr.