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Chinese lesson, commented lawyer, partner ADCOM Law Firm Diana Antokhina
2012-10-11
In terms of contribution to world culture was the most productive China - gunpowder, printing, characters, kung fu, astrology, umbrellas and more. But I am interested in this case another achievement of Chinese thought - judicial precedent, the authorship of which mistakenly credited the Anglo-Saxons. Intuitively, go in the direction of case law and Ukrainian lawyers. For us, has become the norm to reinforce its position or decision of a superior court of the same. And my practice - is no exception. Already at the first hearing of the case on the terms of the interest rate on the loan agreement, it became clear that the position of a judge is not in favor of my client. But the handy "precedent" - a decision the same judge in a similar dispute, canceled by a higher authority. I gave her a copy of the canceled deal solutions, which can not but affect the process.
Ukrainian court also moving to the case law confirms that Art. 17 of the Law "On implementation of the decisions and the application of the European Court of Human Rights". It states that "the courts apply in cases Convention for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights as a source of law ", and for the first time in the new law "On the Judicial System and Status of Judges" The Supreme Court has the power to issue decisions subsequently required for use by the courts in similar disputes with a view to uniform application of the same substantive law. In other words, to form a judicial precedent.
Much more experience in this regard with our Russian colleagues, where the Constitutional Court has recognized the authority of the Supreme Administrative Court to review the case, if a subsequent case law permit similar conflicts will be different. In this case, the COP immediately limited "appetite" for the mass YOU revision cases due to changes in practice.
Credo opponents of case law as a whole, too, has long been known - Ukraine is not a country of case law. "Well, who do you trust the formation of legal positions, what is this judge?" - They ask. But, first, the case-law system can significantly reduce the impact on the judges telephone law, and corruption. Learn, "seeded " whether or not the judge's office - is a difficult, sometimes impossible, but to compare the solution with already created a precedent and draw the appropriate conclusions - a piece of cake.
Second, how to be in the event of conflicting court decisions in similar cases? Which one is considered a precedent? Of course, each of the parties will refer to the favorable define it. Judges are human beings too, they make mistakes. But that is the Supreme Court. There are well aware of where desperately needed a precedent and which one.
In addition, if a precedent contrary to the law, the judge has the right to refuse motivated to use it.
In any case, having the precedent in court to defend its legal position is much easier to operate than the general rules of law. Now lawyers are, in fact, powerless over some "Gusyatinskaya" by the court and forced to negotiate for the simple reason that if the judge makes an unjust decision, it would not be bad to him, and a businessman, who will arise a "hole" in the balance sheet. Therefore, the case law for us - that is to say, the most effective anti-corruption strategy. Even if suggested by the Chinese.
partner ADCOM Law Firm
Diana Antokhina
2012-10-11
In terms of contribution to world culture was the most productive China - gunpowder, printing, characters, kung fu, astrology, umbrellas and more. But I am interested in this case another achievement of Chinese thought - judicial precedent, the authorship of which mistakenly credited the Anglo-Saxons. Intuitively, go in the direction of case law and Ukrainian lawyers. For us, has become the norm to reinforce its position or decision of a superior court of the same. And my practice - is no exception. Already at the first hearing of the case on the terms of the interest rate on the loan agreement, it became clear that the position of a judge is not in favor of my client. But the handy "precedent" - a decision the same judge in a similar dispute, canceled by a higher authority. I gave her a copy of the canceled deal solutions, which can not but affect the process.
Ukrainian court also moving to the case law confirms that Art. 17 of the Law "On implementation of the decisions and the application of the European Court of Human Rights". It states that "the courts apply in cases Convention for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights as a source of law ", and for the first time in the new law "On the Judicial System and Status of Judges" The Supreme Court has the power to issue decisions subsequently required for use by the courts in similar disputes with a view to uniform application of the same substantive law. In other words, to form a judicial precedent.
Much more experience in this regard with our Russian colleagues, where the Constitutional Court has recognized the authority of the Supreme Administrative Court to review the case, if a subsequent case law permit similar conflicts will be different. In this case, the COP immediately limited "appetite" for the mass YOU revision cases due to changes in practice.
Credo opponents of case law as a whole, too, has long been known - Ukraine is not a country of case law. "Well, who do you trust the formation of legal positions, what is this judge?" - They ask. But, first, the case-law system can significantly reduce the impact on the judges telephone law, and corruption. Learn, "seeded " whether or not the judge's office - is a difficult, sometimes impossible, but to compare the solution with already created a precedent and draw the appropriate conclusions - a piece of cake.
Second, how to be in the event of conflicting court decisions in similar cases? Which one is considered a precedent? Of course, each of the parties will refer to the favorable define it. Judges are human beings too, they make mistakes. But that is the Supreme Court. There are well aware of where desperately needed a precedent and which one.
In addition, if a precedent contrary to the law, the judge has the right to refuse motivated to use it.
In any case, having the precedent in court to defend its legal position is much easier to operate than the general rules of law. Now lawyers are, in fact, powerless over some "Gusyatinskaya" by the court and forced to negotiate for the simple reason that if the judge makes an unjust decision, it would not be bad to him, and a businessman, who will arise a "hole" in the balance sheet. Therefore, the case law for us - that is to say, the most effective anti-corruption strategy. Even if suggested by the Chinese.
partner ADCOM Law Firm
Diana Antokhina