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The article examines the introduction of digitalization into justice processes and the processing of judicial decisions in administrative and civil personal injury compensation disputes. The purpose of the implementation of the algorithms was an attempt to develop indicative criteria and ways to determine the amount of compensation for bodily injury. It is noted that the new rules were met ambiguously by the professional community. For example, delegations of lawyers from G7 countries expressed concerns about the future of justice. The reason for their discontent was the possibility of excluding adversarial discussion from judicial proceedings if artificial intelligence was used. In this context, the regulation of algorithms used in the justice sector, designated by the term “algorithmic models of judicial decision analysis” (MAAD) seems to be a priority for the preservation of democracy and the rule of law. The author believes that MAAD will promote greater openness of the judge, both to the plaintiffs and to the judicial institution, as well as – “coherence” of the case law, making it available for judges to examine. It is emphasized that the introduction of such algorithms is a form of digital judicial collegiality, not the standardization of judicial thinking.

This paper attempts a comparative understanding of the constitutional law of elections in two African countries: Ghana and Nigeria. As a prelude, I argue that judges should approach the task of interpretation of the constitutional law of elections based on a non-positivist understanding of legality or the rule of law. Law is not to be regarded simply as the product of lawmakers’ decisions and intentions but as embodying fundamental values that gain normative force independently of what is decided, written or intended by lawmakers. The core of this claim is anchored on a theory of law, the fundamental law of reason. The identification of this fundamental law is not a matter of pure moral reasoning. It is a conception of law as a rule of reason with ‘reason’ here suggesting a uniquely judicial form of discourse where the particular values that will, under this approach, gain this special normative force cannot be listed in a fixed catalogue; they are, rather, the values that are deemed essential to securing the conditions for legality or the rule of law that are, in turn, necessary for ‘law’ to exist. In light of this, I contend that judicial decisions on electoral disputes in Ghana and Nigeria should be able to carry conviction with the ordinary person as being based not merely on legal precedent or the law-makers’ intentions but also upon acceptable values as understood from the reason of the fundamental law.

The issue of legal reasoning has been addressed widely in legal academia and practice, but rarely considered by linguists. This paper, employing the Systemic Functional Linguistics (SFL) genre perspective and the discourse semantics system as its conceptual framework, attempts to reveal the different ways of legal reasoning of common law judicial opinions and Chinese judgments from a textual perspective. One judicial opinion of a British case and one judgment of a Chinese case are explored for comparison. The findings suggest that Chinese judgments as a legal genre, compared with its counterpart of common law judicial opinions, unfold not in waves construed by multilayered Theme-and-New structure, but in chunks establishing no prediction or consolidation. We argue that this mode of text unfolding in waves is vitally important for readers to follow the judge’s reasoning and construct a sense of fairness and justice. We suggest that the periodicity and the generic structure of common law judicial opinions would be a valuable frame of reference for the Chinese judicial reform on judgments in improving its legal reasoning.

When establishing human rights violations committed by the state, should it be violation of internationally protected rights or constitutional rights, the violator is obliged to compensate for the harm caused. In the meantime, neither international sources, nor national legal acts and case law answer the question whether the obligation to compensate is exhausted by the compensation awarded in accordance with a decision of an international judicial body or such a payment has punitive nature, and the state keeps the obligation to compensate the damage within the frameworks of national proceedings. Following the first part of opening remarks the second part of the article studies universal international law approach towards the state obligation to compensate for human rights violations, it reviews positions of the International Court of Justice, the model established in international customary law of international responsibility. The third part discusses the compensation mechanism of the European Court of Human Rights and a number of cases where the Russian Federation was the respondent state. The forth part considers national regulation of the Council of Europe states and case law thereof. The author argues that the established international case law in respect of awarding compensations for human rights violations is too restrictive – it does not take into account a complex nature of this phenomenon which includes both correction of the individual applicant situation (restitution of the pre-existed situation) and prevention of similar situations in the future. It is concluded that awarding the compensation by an international body primarily constitutes a measure of international responsibility whereas consideration by a national court is a more effective means of restitution of the applicants rights and that the national court shall not deny consideration of applicants claims due to the fact that they have already been awarded compensation by the international judicial body including the European Court of Human Rights.

A jogerő lényege, hogy a bíróság elé került ügyek, a törvények adta keretek között véglegesen befejeződjenek. Ugyanakkor különösen a bv. bírói határozatokkal összefüggésben nagyon eltérő értelmezések alakultak ki, hogy milyen határozatok lehetnek képesek jogerőre. Ez az egyszerűnek tűnő, azonban mégis rendkívül bonyolult kérdéskör olyan további fogalmak részletezését és elemzését teszi szükségessé, mint alaki vagy anyagi jogerő, res iudicata (ítélt dolog), kötelező erő, kötőerő, megváltoztathatatlanság. A kérdéskört az alapvető jogokat sértő elhelyezési körülmények miatti kártalanítás tárgyában született határozatokkal összefüggésben is vizsgálat tárgyává teszem. Ennek az is az oka, hogy a tárgykörben született Kúriai határozatok és Alkotmánybírósági határozatok is kártalanítással kapcsolatos bv. ügyek kapcsán születtek.

Zachary Mollengarden and Noam Zamir base their conclusion that the Monetary Gold principle should be abandoned on both legal considerations and policy implications. These two elements, however, do not receive equal attention in the article. This essay unpacks the authors’ dismissal of the idea that, by subjecting jurisdiction to consent, the principle makes compliance with awards from the ICJ more likely. Based on the notion that judicial decisions should be understood as embedded within wider political bargains, I contend that while consent might be indicative of states’ willingness to abide by a judicial decision, what ultimately matters for changing state policy towards compliance is the set of incentives that states face in the context of these wider political bargains. Thus, the essay argues, in line with Mollengarden and Zamir, that abandoning the Monetary Gold principle need not make the Court less effective. However, it will not necessarily make it more impactful either. Beyond Monetary Gold and in relation to its role in world politics more broadly, the Court's impact rests, ultimately, on how political actors––including the ICJ itself––mobilize rulings strategically.

This study examined the development of international and municipal laws on maritime safety and security and identified the challenges undermining the efficiency of the provisions at combating security threats within the Nigerian maritime space. The study relied on primary and secondary sources of information. The primary sources included the United Nations Convention on the Law of the Sea (UNCLOS) 1982, Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988, the Safety of Lives at Sea (SOLAS) Convention 1974, municipal legislations and Judicial decisions. While the secondary sources included books, journal articles, conference proceedings and the internet. It was found that there is an array of international laws addressing maritime safety and security. It was further found that the effectiveness of these international maritime laws in Nigeria is undermined by inadequate implementation traceable to socio-legal, institutional and political issues in the country. The study recommends adoption of functional legal, institutional and policy measures to address the various implementation challenges, address maritime safety and security threats in the Nigerian maritime domain and aid the maximization of the nation’s maritime resources to facilitate development.

Group fairness means that different groups have an equal probability of being predicted for one aspect. It is a significant fairness definition, which is conducive to maintaining social harmony and stability. Fairness is a vital issue when an artificial intelligence software system is used to make judicial decisions. Either data or algorithm alone may lead to unfair results. Determining the fairness of the dataset is a prerequisite for studying the fairness of algorithms. This paper focuses on the dataset to research group fairness from both micro and macro views. We propose a framework to determine the sensitive attributes of a dataset and metrics to measure the fair degree of sensitive attributes. We conducted experiments and statistical analysis of the judicial data to demonstrate the framework and metric approach better. The framework and metric approach can be applied to datasets of other domains, providing persuasive evidence for the effectiveness and availability of algorithmic fairness research. It opens up a new way for the research of the fairness of the dataset.

The Case of the Monetary Gold Removed from Rome in 1943 is familiar to all international lawyers. Like a catechism, we are taught that the ICJ will not proceed with a case where the legal interests of a State not before the Court “would not only be affected by a decision, but would form the very subject-matter of the decision.” Mollengarden and Zamir's proposal that the Court should dispense with the Monetary Gold principle feels almost heretical. The authors contend that the ICJ Statute sets out a framework for balancing the interests of third parties through the use of the intervention procedure, and that Monetary Gold “disrupts that balance.” Monetary Gold is, they submit, to be treated as only a judicial decision, entitled under Article 36(1)(d) of the Statute to little deference as a source of legal principle. I suggest taking an altogether different approach. The best way to understand the place of the Monetary Gold principle is in the context of the ICJ's rule making powers pursuant to Article 30(1) of the Court's Statute. These rule making powers are not limited to the promulgation of formal Rules of Court but extend to the determination of appropriate procedures during the hearing of a case. These procedural rules (small r), articulated in the context of particular cases, may in time evolve into formal Rules of Court through an iterative process. Monetary Gold is an instance of the Court defining a small r procedural rule in a manner that is consistent with the Court's Statute.

Background: Research examining female sexual offending is limited, and the profile of this unique offender group is not well understood. Female sexual offending has largely been identified as a rare occurrence, typically perpetrated in the context of an unhealthy relationship with a paraphilic male counterpart. Given recent changes in law and minimum sentences for sexual offences—particularly in relation to child pornography and child luring offences—it remains unknown how this has impacted sentencing of female offenders charged with sexual offences. Objectives: The goal of this study is to better understand female offenders convicted of sexual offences and their offence characteristics. Additionally, it seeks to identify patterns in judges’ decision-making with respect to aggravating and mitigating factors that impact sentencing decisions.Methods: A sample of 26 judges’ sentencing decisions between 2000 and 2017 were obtained to investigate the Canadian female sexual offender (FSO) as she enters the justice system. Results: In the study sample, high rates of psychopathology and childhood trauma were important features of this offender group. Offences tended to occur over extended periods, with a male co-offender, and with a young victim that was well known to the offender. Aggravating factors related to the vulnerability of the victim, abuse of power, and lack of insight. Mitigating factors related to accepting responsibility and a desire for self-change. Offenders were generally sentenced for two to five years, with ancillary orders intended to track and restrict further offending, rather than foster rehabilitation. Discussion: Gaining a better understanding of Canadian FSO population is the first step toward improving rehabilitation and prevention.

O estudo analisa os diferentes conceitos do postulado da coerência, sua necessária utilização para a criação legislativa e para a decisão judicial, bem como sua íntima relação com os conceitos de unidade, sistema e integridade, utilizando, para isso, da pesquisa bibliográfica, de dados na internet e jurisprudencial como metodologia de estudo. Investigar-se-á também a relação entre integridade e coerência nas decisões judiciais e o regime democrático, sob a ótica da previsibilidade das decisões judiciais e da igualdade de tratamento aos litigantes e o incidente de assunção de competência como um dos instrumentos processuais aptos a conferir integridade e coerência às decisões de um mesmo Tribunal. Por fim, a investigação pretende criticar a ausência de uniformização jurisprudencial por parte dos Tribunal de Justiça do Rio Grande do Sul no caso dos contratos de crédito com descontos em folha de pagamento (contratos de crédito consignado) relativos aos servidores públicos do estado, que gera decisões em desconformidade com a coerência e a integridade da jurisprudência deste Tribunal.

The subject of the article is some judicial acts on cases concerning protection of private property issued in Russia in recent years in the context of changes in the procedural legislation and legislation on the judicial system. The purpose of this article is to discover whether the current Russian judicial decisions may serve as input data for a machine learning algorithm in future. The main results, scope of application. The article presents an analysis of the changes in the Russian procedural law and in the regulation of the national judicial system in the recent years, which form new trends in judicial practice, according to the latest cases for the protection of private property in the courts. The author makes an analysis of the effectiveness of justice in providing recourse to private property violations in Russia. It is discovered whether the judicial protection has been substantially improved, following the promises of the Russian government. The article argues that these trends in judicial practice will negatively affect the automation of justice in the context of the nationwide digitalization of justice Such digitalization requires setting guidelines for the automated judicial decisions followed by the automated delivery of judicial documents. The methodology combines legal interpretation of judicial acts and Russian legislation comparative research, foresight and critical approach based on structured analysis, induction and deduction. Conclusions. There is a systemic deficiency in protecting private property in Russia, since neither the rules of civil and administrative proceedings, nor the constitutional control tools provide adequate protection on the matter. The recent relocation of the Constitutional Court of Russia from Moscow to St. Petersburg did not promote the judicial independence of the Court. On the contrary, the Constitutional Court, through formal excuses refrains from processing complaints on violation of private property rights and on the inefficiency of judicial procedures. The recent merger of the Supreme Arbitration Court of Russia and the Supreme Court of Russia has contributed to the uniformity of judicial practice. It violated the rights the owners of the shared premises in apartment buildings, but favored the beneficiaries of the management companies, which breach the owners’ rights. Judicial acts studied in this article prove their ineffectiveness in contributing to the quality machine learning for artificial intelligence required for the transition to automatic generation of blueprints and templates of court decisions. Analysis of judicial acts allows to conclude that they cannot serve now as a basis for machine learning of artificial intelligence. They cannot be systematized in databases even by the criterion of the law norms applied by the plaintiffs, since the courts evade the procedural obligation to explain why they reject the law norms that serve as the basis for a lawsuit or complaint, and apply completely different ones. These circumstances require the immediate response from the state authorities, including finding efficient ways to provide sustainable development of justice, i.e. ensuring the Rule of Law and access to courts, since otherwise the digitization of justice will lead to the automation of arbitrariness.

El Tribunal Constitucional Federal alemán emitió el 5 de mayo de 2020 una larga y dura sentencia (2 BvR 859/15), que viene a contradecir y desautorizar la Sentencia del Tribunal de Justicia de la UE de 11 de diciembre de 2018 (C-493/17, Weiss; ECLI:EU:C:2018:1000). El Tribunal Constitucional Federal no duda en calificar de incomprensible, carente de sentido y, desde luego, ultra vires la decisión del Tribunal de Justicia y el modo en el que se produjo el razonamiento del Alto Tribunal europeo. Lo que está en cuestión en el fondo es el Programa de Compras de Activos del Sector Público (PSPP) del BCE y la propia capacidad del BCE y del SEBC para adoptar ese tipo de decisiones, que pueden exceder su competencia como reguladores de la política monetaria de la UE, para introducirse de lleno en el campo de la política económica. En este trabajo, pues, se analizan y comparan los razonamientos que justifican las respectivas decisiones judiciales y se evalúan sus consecuencias.

Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on Italian case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution

We also know that the importance of judicial judgments in the consideration that the law is the organization of the relationship between individuals and society, at the social and administrative level, and the rulings because the law is the legal rules and regulates relations in society, by adhering to the rules, it establishes order and achieves stability by establishing a balance between the interests and individuals that are intertwined and conflicting and this is done by identifying the legal positions of each individual, and therefore from this perspective of a philosophical vision consisting of the following proposals, I wonder whether in this type of law can regulate in this type of law Relationships only.

Il lavoro vuole affrontare il rapporto fra prova scientifica, diritto e processo penale, sottolineando come in Italia la mancanza di cultura scientifica dei giudici e, parimenti, la carenza di regole riferite ai criteri di scelta dei periti e dei consulenti tecnici, porti spesso a decisioni giudiziarie molto lontane dal rispetto dell’ortodossia del rimprovero penale. Dopo aver illustrato alcuni casi giurisprudenziali, la riflessione si sofferma sulle possibili soluzioni di questa annosa questione, muovendo dalla disciplina introdotta dalla legge Gelli Bianco e dal DDL sul Testo Unico Amianto.

According to the criminal procedure legislation, the sources of evidence in criminal proceedings are testimony, material evidence, documents and expert advice. The most common source is testimony, which, according to the legislation, can be obtained only during the interrogation. However, in law enforcement practice there are cases when during some investigative actions, other than interrogation, for instance investigative experiment, inspection, search, the investigator receives from persons involved in it certain information relevant to the criminal proceedings. However, courts sometimes consider the results of such investigative actions inadmissible as evidence, because during their conduct the investigator has recorded testimony which does not meet the requirements of the legislation regarding the procedural form of their obtaining. Such situations lead to the fact that the mentioned information is not evaluated by the courts during the trial, persons, who provided these knowledge during conducting such investigative actions are not interrogated as witnesses, and the proper judicial assessment is not made of the circumstances of the criminal proceedings which were recorded in the protocol of the investigative action. Thus, in the article the author draws attention to the awareness of the essence of the testimony as the sources of evidence in criminal proceedings; considers problems which arise during the classification of investigative actions depending on the methods of obtaining the information on verbal, nonverbal and mixed; analyzes national law enforcement practice, case-law of the European Court of Human Rights, doctrinal approaches and on the basis of the conducted research concludes that the criminal procedural legislation contains legal uncertainty regarding the concept of testimony and knowledge obtained in criminal proceedings. Author admits that the testimony of individuals should be considered in a broad sense, as it is done in the legislation of the foreign countries and in the case-law of the European Court of Human Rights, as any knowledge which has been provided by a person during investigative (detective) actions, which determined the necessity of essential guarantees to people providing it, as well as mandatory interrogation of such people in court in order to perceive the provided knowledge during the hearing and observance of the law to substantiate the court’s conclusions in judicial decision with such testimony.

Este trabalho pretende analisar a possibilidade de multa pessoal ao gestor público por descumprimento de decisões judiciais que visam garantir a efetividade dos direitos sociais fundamentais. Além disso, trabalha a questão dos direitos estampados no art. 6º da Constituição Federal como fundamentais e de aplicação imediata, analisa a possibilidade do controle judicial de políticas públicas e o instrumento da ação civil pública como objeto de efetivação desses direitos e, finalmente, sugere a fixação de multa pessoal ao gestor público e não ao ente público por inércia em caso de descumprimento de obrigações que visam resguardar os direitos sociais básicos dos cidadãos.

This article aims to examine the contributions that Umberto Eco literary theory can bequeath to Law, with emphasis on the formulation of limiting criteria the interpretive activity of the judges. From the analysis of two decisions issued by the Federal Supreme Court in the light of the Eco theory, it will be sought to demonstrate how the respect to the intention of the text by the judges avoid overinterpretations and, consequently, is a condition of possibility for correct judicial decisions.

Pennsylvania is the largest producer of shale gas in the United States and is the second-largest natural gas-producing state overall. Owing to its strategic location atop the Marcellus and Utica Shale Formations, Pennsylvania’s position as a major natural gas producer is relatively new. Just a little over a decade ago, Pennsylvania ranked sixteenth among states in total natural gas production. With this rapid rise in the amount of natural gas development, there has been a corresponding increase in activity in courtrooms across Pennsylvania—both in state and federal courts. As a result, Pennsylvania oil and gas law has evolved within a number of different legal areas, with leasing and title issues perhaps being among the most frequent—and most important—topics that have been addressed by courts. This survey will address the 2019 reported judicial opinions issued by state courts in Pennsylvania that address oil and gas leasing and title issues.

There is a growing consensus that fair priority-setting and the right to health contribute to achieving universal health coverage. The right to health creates legal entitlements to receive care and fair priority-setting promotes efficient and just health systems. However, there can be tension between them, particularly when the right to health is judicially protected. This article analyses three approaches to understanding this tension: the first minimises the conflicts between them to emphasise their synergies; the second admits the tension and considers it positive as rights create and protect substantive entitlements against priority-setting decisions; the third also recognises that this tension exists, but sees these substantive entitlements as obstacles for fair priority-setting. Building on the analysis of these approaches, this article argues that the involvement of courts in allocative decisions can be more comprehensively evaluated by assessing whether they promote or impair fair priority-setting rather than by focusing on the direct beneficiaries of judicial decisions. If this argument is correct, then courts using the right to health to create and enforce substantive entitlements to health treatments becomes very questionable.

This scientific work aims analyse judicial decisions about (in)constitutionality of municipal laws that prohibit the consuption of alcoholic beverages in public spaces. In this way is studied the historical evolution of fundamental rights, with emphasis on first generation rights, individual liberties, the legislative municipal autonomy, the fundamental rights restrictions and the decisions of the Santa Catarina and Parana Courts, based mainly on the principle of proportionality and its sub-elements. Theses judicial decisions points out the inconstitutionality of the municipal laws.

The paper analyzes a Supreme Court’s judgement which confirmed, with a reduction, the fines imposed on managers of a public corporation by the former SVS. The firm reported in the financial statements some long-term credits, which debtors where related companies. It did not take steps to collect them in a considerable period of time, on the grounds that they had been included into a mercantile current account with few movements. The supervisor reclassified the credits as long-term, and concluded that the financial statements contained false information. An analysis validates critically this judicial decision, and offers an alternative basis for it, built on the content of the commercial current account contract.

This paper reports on the England part of a research project exploring judicial decision making in eight jurisdictions with respect to care applications in respect of new-born infants. Descriptive data are provided on a total cohort of 278 care applications made to three English family court care centres in 2016. Attention is paid to final orders made and findings are reported on differences between the three care centres with respect to the proportions of orders made (mainly placement orders; but also care orders and Special Guardianship Orders). A particular focus of the paper is on the ‘transparency’ of court processes as evidenced by the availability of transcripts of judgements. To add to the small proportion of cases (11%) where a transcript was available, 30 English judgements on new-borns reported to the BAILII data base in 2016 were also analysed. Differences were found between proportions of orders made when a judgement transcript was or was not available. It is argued that these results add to the call for greater transparency in the family courts. publishedVersion

We had the opportunity to know a judicial decision in relation to a nonagenarian COVID-19 patient, which is clarifying regarding the complex issue of involuntary admission and involuntary treatment of the elderly. The judge authorized the involuntary admission but denied the possibility of imposing medical treatment against the will of the patient. This situation invites us to review the different types of involuntary admission that our legal system provides and how involuntary medical treatment is regulated according to its purpose and the patient's ability to decide. In the field of public health, the determining element to be able to impose any sanitary measure against the will of the patient is the risk to the health of the population. In the case presented, the judge rejects the possibility of authorizing medical treatment for not contributing anything from the point of view of public health. However, it does authorize involuntary admission as it is essential to guarantee isolation.

O presente artigo versa sobre as medidas coercitivas na ação de execução de alimentos no Brasil e no Chile, especialmente no estudo dos apremios utilizados no ordenamento jurídico chileno e sua aplicabilidade ou não no ordenamento jurídico brasileiro. Para isso, faz-se necessário o estudo de algumas decisões judiciais, que adotaram as medidas que serão tratadas no presente artigo, pautando-se nos meios executórios atípicos trazidos pelo Código de Processo Civil. Assim, foi possível evidenciar que a adoção de algumas destas medidas podem demonstrar ofensa à garantia fundamental do devido processo constitucional, vez que para a utilização das medidas executórias atípicas permitidas pelo Código de Processo Civil, é de suma importância à adoção de parâmetros razoáveis e proporcionais em cada caso levado à apreciação do poder judiciário, devendo sempre ser pautadas sob a égide dos princípios basilares trazidos pela Constituição e pelo próprio Código de Processo Civil.

This work focus on the protection of the fundamental right to freedom of expression in the conflict involving the Porta dos Fundos channel and the streaming company Netflix, arising from a judicial representation promoted by a religious association before the State Court of Justice of the Rio de Janeiro. The second instance of the local Judiciary, based on the need to protect values considered sacred by the Brazilian population, determined the exclusion of artistic material conveyed by the companies mentioned. The research questions whether the judicial protection in the specific case is compatible with the parameters defined by the inter-American Human Rights System in relation to the lawful restriction of freedom of expression, which are binding for the Brazilian State. The investigation was carried out using the deductive method and from documentary and bibliographic sources, with emphasis on decisions and reports by the Inter-American Court and Commission. The development of the work is divided into two parts: first, the factual and legal aspects of the concrete conflict were analyzed, and then the parameters that define freedom of expression in the inter-American System were investigated. It was concluded that the judicial decision of the local judicial body contradicted the regional determinations regarding the protection of human rights.

The present article makes a brief study on the legal regime of the right to recognition of authorship and the figure of the ghost writer in Brazilian law. In order to do so, it makes use of the judicial decisions rendered in the Bruna Surfistinha case, which discussed the authorship of the literary work "O Doce Veneno do Escorpiao" (The Sweet Poison of the Scorpion), which reports on the life of the character Bruna Surfistinha. It is a research that uses descriptive methodology, based fundamentally on bibliographic research, which is done to analyze the judicial solution given to the case object of the study. The most relevant issues of the matter are analyzed, such as the right to recognition of authorship, the work protected by the copyright law, as well as the conventions involving the figure of the ghost writer. It is also worth mentioning the presentation of brief notes on the problem of the ghost writer in Germany and France. Therefore, the objective of this work is to discuss if the judicial solution given to the Bruna Surfistinha case was the most adequate, considering the copyright, the right to the recognition of authorship and the ghost writer conventions.

The effectiveness and stability of legal regulation is ensured and conditioned by many factors and tools. The sustainability andcohesion of trial practice are one of the main. The analysis of the base of sources of mentioned questions has been conducted. For thismoment in national and foreign literature the problem of Supreme courts conclusions’ binding nature has been studied partially. The highest judicial body in the general-jurisdiction court system is the Supreme Court of Ukraine. It provides the trial practice’sunity; implements the analysis of judicial statistics and synthesis of trial practice; ensures the same application of rule of law by thecourts in different specialization according to the procedural law.According to the results of judicial statistics’ analysis and trial practice’ synthesis, The Plenary of the Supreme Court providesthe guidelines on how to implement the legislation in legal proceedings that have only recommendatory nature. In order to exercise ofthe powers conferred by article 13 of the same Act, the legal effect of the Supreme Court’s acts and their degree of obligatory naturehave been defined.The binding nature of The Supreme Court’s conclusions was distributed not only at the disputing parties, but also the other subjects.This has strengthened the position of the highest judicial instance. In doing so, there is an hierarchy of the Supreme Court’s conclusions,namely, conclusions of panel; conclusions of chamber; conclusions of the consolidated chamber; conclusions of the GrandChamber. If there are differences in addressing a specific issue in the conclusions of panel, consolidated chamber or the Grand chamber,the court applies the Supreme Court’s conclusion.Therefore, the conclusions of the Supreme Court of Ukraine are mandatory, because before go around them, the matter questionhas to be reviewed by the Supreme Court.Thus, by the interpretation of the rules of law in the specific cases and in addressing the specific issues, the Supreme Court formulatedthe legal positions which govern the public relations in conjunction with the other legal regulators.The meaningful analysis of the Supreme Court’s orders demonstrates their regulatory impact. All of its components, such as:explanations, recommendations and definitions, are not personified, but comprise general and abstract rules. They are addressed to allthe judicial system; are aimed at not one-time application; are in force until they will be replaced or cancelled. The Supreme Court’sorders establish the regulatory legal tools as principles of existing legislation’s implementation and rules-explanations, rules-recommendations,rules-definitions. These rules set the direction in interpretation and implementation of legislation for the judicial authorities.The legal provisions in this situation are unambiguous: the necessity of position’s “binding nature” is expressly foreseen, abo -lishing the derogation from the Supreme Court’s positions, for the lower courts and the regulation of derogatory procedure at the levelof cassation.In the future, all the above mentioned would positively influence on the cohesion of the judicial system. It would contribute tothe restoration and building of citizens’ confidence in the judicial system. It would further facilitate the foreseeability and predictabilityof judicial decisions. It would enhance the independence of the judicial power and increase the efficacy of courts’ activities.

Although it is common knowledge that judges in different legal systems have different conventions as to how they justify their decisions and some judges are more while others are less willing to articulate their positions, we did not have exact data about these differences in constitutional reasoning. Our research proposed a simple index (JI) to measure the level of judicial individualism. Drawing on the research design of the Conreason project, we used this index to compare the practice of 14 constitutional courts in landmark constitutional cases. In addition, we also measured the level of disagreement (JD) within these 14 courts and by introducing the concept of disagreement factor (DF) we analysed to what extent substantive disagreements contribute to the rise of the number of separate opinions and, hence, to the rise of judicial individualism.

Today, law clerks and judicial assistants have an important position in the judicial decision making process. Yet, the legitimacy of their role is regularly questioned. In the discussion on the legitimacy, it is widely assumed that judicial assistants are actively involved in adjudication and influence the outcome of judicial decisions. However, there is still little empirical evidence to substantiate these assumptions. This article contributes to the knowledge regarding the role of judicial assistants in adjudication. It does so by means of conducting an experimental survey among Dutch administrative law district court judges (N = 80). In this survey, we measure the role and influence of judicial assistants in adjudication in three different steps. We demonstrate that judicial assistants are actively involved in adjudication via sound-boarding, preparing bench memos and drafting judgments and have a self-reported and experimentally established influence on the outcome of court cases.

Prawne rozstrzygnięcia dokonywane na podstawie interpretacji art. 18 Konstytucji RP, zgodnie z którą przepis ten nie tylko uniemożliwia instytucjonalizację na poziomie ustawowym w Polsce związków jednopłciowych, lecz także uniemożliwia zarejestrowanie w Polsce małżeństwa zawartego za granicą przez osoby tej samej płci, a nawet że przepis ten stanowi jedną z przeszkód transkrypcji zagranicznego aktu urodzenia dziecka, w którym jako rodzice wpisane są osoby tej sa-mej płci, prowadzą do opresji. Inspiruje to do krytycznego spojrzenia na ten hegemoniczny dyskurs prawoznawstwa dotyczący art. 18 Konstytucji, a także do postulatu kreowania przez prawoznawstwo i orzecznictwo sądowe alternatywnych dyskursów w tym zakresie — uwzględniających rzeczywistą, a nie minimalistyczną lub formalną realizację wolności i równości — które w przyszłości mogłyby przejąć pozycję hegemoniczną. W opracowaniu zawarte jest nawiązanie do idei Chantal Mouffe, że zadaniem demokracji jest przekształcanie relacji antagonistycznych (relacji my–oni, których strony są wrogami niemającymi wspólnych punktów odniesienia) w relacje agoniczne (relacje my–oni, któ-rych strony są dla siebie nie wrogami, lecz „przeciwnikami”). Bez wątpienia współcześnie w Polsce konfrontacja pomiędzy środowiskami konserwatywnymi a osobami LGBT i ich sojusznikami nie ma charakteru agonicznego i wątpliwe jest, w aktualnych warunkach politycznych, przeniesienie tego antagonizmu do agonicznej, publicznej sfery sporu. Zdaniem autora pewną rolę do odegrania ma tu jednak prawoznawstwo (i orzecznictwo sądowe), które powinno wykonać wysiłek mający na celu skonfrontowanie różnych prawniczych dyskursów na temat praw osób LGBT. Ewentualna utrata pozycji hegemonicznej przez aktualnie w Polsce dominujący dyskurs prawniczy (dotyczący art. 18 Konstytucji RP) mogłaby w przyszłości doprowadzić do „ucywilizowania” publicznej konfrontacji dyskursów dotyczących roszczeń osób LGBT (i być może przekształcenia rejestrowanej obecnie relacji antagonistycznej łączącej konserwatystów z osobami LGBT w relację agoniczną, a wreszcie — zmian prawa).

The use of social science research in reaching a judicial decision with broad societal implications dovetails with the emerging push for evidence-based policies regarding criminal procedure issues....

El estudio de las resoluciones judiciales es de gran importancia dentro de la época actual, es ahí donde se representan los razonamientos jurídicos que resuelven casos controvertidos, sobre todo aquellos de instancias superiores de impartición de justicia, uno de esos casos es la contradicción de tesis 293/11, que en México refiere a la restricción de los derechos humanos, criterio jurisprudencial que tratamos de analizar desde la óptica de la argumentación jurídica.

En este trabajo se analiza el posible significado y plausibilidad de dos conocidas tesis de la teoría jurídica: la exclusividad y la exhaustividad del derecho. Conforme a la primera, las normas positivas agotan el contenido del derecho, mientras que la segunda expresa que los ordenamientos jurídicos siempre suministran una respuesta apta para justificar una decisión judicial. El marco teórico escogido es el enfoque del positivismo jurídico contemporáneo y, se muestra que, en gran medida, el alcance de las tesis acerca de la exclusividad y la exhaustividad depende de una distinción entre el «sistema global», que es el conjunto de normas válidas en un cierto momento T (i.e., el momento de la decisión judicial que resuelve una controversia) y el sistema de normas aplicables. A su vez, esa distinción permite analizar la naturaleza abierta de los sistemas globales desde cuatro puntos de vista diferentes: regulativo, lógico, normativo e interpretativo. Finalmente, se exploran las consecuencias de estas distinciones para el problema de la discrecionalidad judicial.

While China's medical tourism industry is increasingly standardized and institutionalized, the relevant research assessing its legal risks is still absent. This paper aims to evaluate the risks of medical tourism from the legal perspective by exploring the conflict between the developing new practice and the existing legal system, summarizing the legal risks in medical tourism, and proposing measures and suggestions to mitigate such risks. The empirical research method is employed to review the legal risks in Boao Lecheng International Medical Tourism Pilot Zone, which is the pioneering project of China's development within the medical tourism industry. These research methods include collecting the latest medical tourism policies and regulations, judicial decisions, and on-the-spot investigation of the Pilot Zone. It is found that the legal risks in medical tourism activities are mainly concentrated in the administrative, civil and litigious legal relations, and concern four major subjects which are regulators, medical operators, tourism operators and consumers. For regulators, their administrative supervision has not been well in place before and during medical tourism activities, and there remain legal gaps in regulation. In terms of the protection of consumers' substantive rights, service providers and operators may evade their responsibilities by exploring the vacuum area during the transition from the old laws to the new ones, and the conflicting provisions exist between the special laws and general ones. Concerning the protection of consumers' litigation rights, there are many obstacles for consumers to safeguard their interests through litigation in a foreign land. In this paper, medical tourism activities are identified among four legal subjects and involving three types of legal risks, in the hope to help improve the overall understanding of medical tourism from the legal perspective, and put forward targeted suggestions on the potential legal risks.

Brazil has become the epicenter of the COVID-19 pandemic in the Global South-a pandemic that disproportionately affects vulnerable populations, especially those detained and imprisoned. Legal institutions are struggling to respond. In this paper, we focus on the National Council of Justice’s Recommendation 62, issued March 17, 2020, which recommends that judges take several measures to reduce the risk of COVID-19 infection in prisons. We test this recommendation’s impact by looking at habeas corpus decisions in the São Paulo Court of Justice. The exploratory findings presented here indicate that Recommendation 62 has little impact on habeas decisions. In general, citing the recommendation does not lead the Court to grant early release or house arrest to those detained, and most habeas actions are decided against petitioners. This is true even when petitioners claim to be part of a risk group, or their alleged offense did not involve violence or serious threat-factors that should favor habeas relief under Recommendation 62.

The State Administrative Judicial as the executor of judicial power has a duty and authority to examine, decide, and resolve State Administrative disputes. Along with tecnological development, judicial practices within the scope of the Indonesian Supreme Court hal implemented the ecourt application. The aims of this study is to analyze policies regarding the implementation of Electronic Litigation in the State Administrative Judicial, as well as to find the obstacles encountered. This study uses a normative method with a statute approach, that is Act 5 in 1986 concerning State Administrative Judicial and its amendment, and Supreme Court Regulation Number 1 of 2019 concerning Administration of Cases and Trials in Court Electonically. The result of the study show that the application of Electronic Litigation at State Administrative Judicial is carried out comprehensively, that is from the registration stage until reading of judicial decisions. The obstacles that still being faced are related to the stage of evidence which in practice still requires a conventional trial, and the limited access to the internet network in several regions in Indonesia.

A matemática tem modelado bem os sistemas físicos apenas por não apresentar modelos únicos dos fenômenos. Aqui descrevemos quatro tipos de modelos matemáticos com grande impacto na descrição do mundo físico. Enquanto nas ciências duras estes modelos são simples instrumentos para explicar o mundo físico, quando aplicados para a realidade social perdem seus contornos precisos e transformam-se em modos de compreensão da realidade. O objetivo deste estudo é construir uma tipologia de problemas jurídicos a partir destes modelos matemáticos de maior destaque. A análise foi feita a partir de julgados extraídos de tribunais diversos a fim de correlacioná-los com as teorias suscitadas neste ensaio. Em síntese, descreve-se alguns aspectos do mundo jurídico por comparação com modelos matemáticos existentes. Por óbvio não se esgota a complexidade do direito pela redução a quatro modos de enxergá-lo.

The discussion in the writing of this thesis is a problem related to forced efforts as regulated in article 116 where in this article forced efforts (Dwangsom) are regulated. The purpose of implementing compulsory measures so that the decisions issued are carried out by those concerned. This study aims to determine the mechanism of forced attempts to officials who do not carry out the TUN Judicial Decision and to find out the obstacles to forced attempts against the TUN Judicial Decision. Normative legal research is used as a research method, which is a stage to find legal regulations, legal principles in order to answer the contents of the law in this thesis with a statutory approach, legal theory and a conceptual approach. Primary and secondary sources of legal materials are then analyzed to obtain conclusions and suggestions. The results showed that the efforts to force the decision, namely Dwangsom and administrative sanctions at the PTUN which had been incracht could not be implemented optimally. The obstacle in forced efforts related to the execution of the PTUN Decision is that there is no special agency tasked with implementing the decision, therefore the government has revised the PTUN Law and provisions relating to Forced Efforts issued by the Supreme Court so that it can be applied by the PTUN judge so that it can be applied and implemented optimally.

Com o mundo cada vez mais globalizado, os atos normativos exarados pelo poder legislativo a partir das leis e das emendas constitucionais, do poder judiciário através de suas decisões e do poder executivo através de suas portarias, resoluções, decretos e normas internas têm sido cada vez mais objeto de discussões seja no meio acadêmico, seja em circunstâncias festivas ou em outro tipo de evento da sociedade. As tecnologias vieram para alterar e dinamizar o ritmo com que a sociedade se desenvolve e alterar as relações sociais, tendendo a ultrapassar fronteiras e não ficando restritas a um determinado grupamento. Assim, dessa forma, a Uber alcançou espaço entre os consumidores brasileiros a partir de uma mudança social, política e econômica que não ficou adstrito somente a um determinado país, mas tem se alastrado por todos os países do globo, mesmo trazendo controvérsias. O presente artigo busca analisar o impacto da insegurança jurídica no ordenamento jurídico trabalhista e como - ou se - as divergências existentes entre as decisões judiciais de primeira instância acarretam um possível efeito backlash, trilhando o caminho pelo exame dos institutos do backlash e pelo estudo das decisões judiciais que não reconhecem a existência de relação empregatícia e, por fim, pela aplicabilidade e convergência desses institutos.