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Thoughts about accessory private prosecution
Views:71In Hungary the new code of criminal procedure established a new legal institution to the Hungarian legal system: accessory private prosecution. This kind of private prosecution gives opportunity to the afflicted person to continue penal procedure in case of negative sentences from investigation authorities. If the prosecutor or the investigation authority stops proceeding or the prosecutor sets aside, withdraws formal accusation, afflicted person can substitute them during a penal procedure and has a right to claim the continuation of it. Our valid code does not limit the field of crimes this legal institution of accessory private prosecution can be applied. But there are some strict reasons, which limit this right of the afflicted person. If the investigation authorities neglected formal accusation because of childhood, death, prescription, clemency, prohibition of ne bis in idem, accessory private prosecution cannot be applied.
Pros of accessory private prosecution can be found in the rights of afflicted persons. Criminal power of the state cannot be absolute, so we have to give the right for the injured to judge whether he insists on taking the responsibility of the perpetrator despite the opposite opinion of public bodies. This legal institution can help omissions of prosecutors to be remedied. Practicing this right depends on the stadium of the procedure. During the investigation period or the period of formal accusation reasons for accessory private prosecution are different.
According to the new rules of the code, applying an advocate in the procedure is an obligation for the afflicted person. This regulation ensures that the structure of penal proceedings cannot be changed basically. In a normal procedure there is always a professional expert, the prosecutor on the side of accusation. That is why the code does not permit accusation without applying an advocate.
Costs are interesting question in case of accessory private prosecution. In popular action procedures costs are paid by the state. When the afflicted person practices the right of accessory private prosecution, state pays in advance, but if perpetrator is acquitted or the court stops proceeding, costs should be paid by the private prosecutor himself. There are some rules to ease this burden for the afflicted person: if he has bad financial capacity and he can certify this circumstance, court can authorize him not to pay for the fee of the advocate.
There is a special question in connection with accessory private prosecution: representation of the state. In these procedures the afflicted person is the state or one of the state bodies itself. There are two points of view to answer the question: who is authorized to represent the state as an accessory private prosecutor during a penal procedure. First we have to make difference between the injuries: if the injury is against the state while practising public authority, the injured party is the state itself. But if the injury hit the state as a civil legal entity, a possessor, the right to claim is in the hand of that public body, which was entrusted to handle the injured property. This theory means that in case of injuries against the public author state, only the prosecutor can represent it, so there is no chance for accessory private prosecution.
The other solution for this problem has its starting point that in every crime against public property, accessory private prosecution can be applied. In this case the state can be represented by that part of it, which has interest. Although there are no jurisdiction in this question, because accessory private prosecution was established by the new code from 1st July 2003 after fifty years into the Hungarian legal practice. According to the regulations of the code, we can find the following sentence: afflicted person is whose right or legal interest was hurt or endangered by the crime. Analyzing this definition the argument can be read previously is decent for those situations, when we would like to find the legal representative of the state as an accessory private prosecutor.
Accessory private prosecution is a good solution that fits to the new directions of law development, to increase rights of the afflicted person. Naturally, time needs to become a well-adopted legal institution in Hungarian legal system after half a century silence.
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The divided trial system of the New Code of Civil Procedure in the light of the Act I of 1911
88-96Views:94n my paper, I dealt with the divided trial system, because in the Conception of the New Code of Civil Procedure arised the idea, that the first-instance procedure will be regulated by the divided trial system. During my studies, I researched the trial system of the Act I of 1911, and I analyzed the sentencing practice in this era.
First, I presented the matter of the trial system, as well as the two dominant trends in Hungary relating to the creation of civil action. The difference between the two trends, that distinct mesne process creates the civil action. According to one of them, the civil action is created when the defendant gets the statement of claim, or, on the other hand, when the defendant submits countermotion.
In the next chapter, I intended to present the point of intersection of action, which legal institution separates the first-instance procedure to pre-trial hearing and the trial on the merits.
After this chapter, I reportedtheresults of sentencing practice and cametotwoconclusions. Ontheonehand, thepre-trialhearinghangedfirefor a longtimebecause of theappealproceedings. Ontheotherhand, thesentencing practice wasnotconsistent, becausethecourtsused an incorrectterminology. Thecourtsdismissedtheproceedingsbeforethesubmission ofcountermotion, butaccordingtotheAct of 1911 themesneprocess of creating a civil actionwastosubmit a countermotion.
Inconclusion, I thinkthe divided trial system of the New Code of Civil Procedure will be totally different than the divided trial system of the Act of 1911.
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Le présent et le futur de la réparation dans la procédure pénale hogroise
Views:75A la deuxième moitié du XX ième siècle la victime a commancé á jouer un rôle important de nouveau dans les procédures pénales. Les legislateurs veulent assurer les droit de la victime et garantir qu’elle soit indemnisée le plus tôt possible et pour que tout le monde soit content du résultat.Ce sont les cadres de la juridiction restaurative qui en assurent les possibilités.
Dans cet essai premièrement je présente le cadre de la constitution de partie civile dans la législation hongroise. C’est une procédure très intéressante parce qu’il faut appliquer d’un côté le droit civil et la procédure civile et de l’autre le drot pénal et la procédure pénale dans le cadre de la juridiction pénale (dans une procédure).
J’ai analysé le terme de la victime, les règle appliquables et les décisions du juge. J’ai constaté qu’en Hongrie les tribunaux correctionnels ne délibèrent pas les décisions sur le fond dans les cas de partie civile mais ils renvoient les affaires devant les tribunaux civils.
Ensuite, je présente les institution juridique hongroise qui vise á l’entremise dans la procédure pénale. On peut trouver deux institution juridique en vigeur. En premièr lieu il faut mentionner que dans les cadres de la procédure par constitution de partie civil (où la victime soutient l’accuation) il existe une audition personnelles des parties où le but est donc l’arrangement des parties.
Il y a une autre institution juridique qui s’appelle l’ajournement de la mise en accusation. On peut l’appliquer si la peine ne mérite pas de trois ans de prison et il y a beaucop de circonstances atténuantes, le procureur peut décider l’ajournement de la mise en accusation d’une au deux ans. On peut prévoir différentes obligations et règlements du comportement pour le prévenu. Par example on peut prévoir de dédommager la victime avec l ‘accord des parties. J’ai examiné cette institution juridique et son efficacité dans la pratique aussi.
Troisièmement j’ai analysé une institution juridique qui entrera en vigeur le 1er janvier 2007. C’est la médiation pénale. Il y a un cadre de décision européen (2001/220/IB) qui préconise aux États memnbres d’introduire la médiation pénale. Pour pouvoir appliquer cette institution juridique il faut modifier le Code Pénale et la loi de la procédure pénale. C’est le procureur qui aura le droit de la suspension du procès pour maximum six mois et renvoyer l’affaire devant un méditeur. Cette procédure devant le médiateur sera regie par une loi d’exeption.( Il y a déja une projet de la loi). Je présente les problèmes en relation la médiation pénale. En résumé on peut dire que la mise en place et la régulation de la médiation demandent du temps et de l’énergie. Je statue qu’il faut attendre beaucoup de temps en Hongrie pour que l’opinion publique et les justiciables acceptent et appliquent avec efficacité la médiation pénale.
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Jurisdictional Constants and Doubtful Questions in Recent Hungarian Jurisdiction of Damages for Non-Pecuniary Loss
Views:66Since 1992, date of Constitutional Court’s decision No. 34/1992, certain rules cannot be found in Hungarian Civil Code. There is only a part of a sentence that gives right to any injured person to claim damages in case of personal injuries. More than 10 years after the cassation we are able to look through the legal practice in connection with damages for non-pecuniary loss. The recent re-codifying process plans a brand new institution to substitute and follow damages for non pecuniary loss: pain award. To establish a decent regulation of pain award, jurisdiction of the last decade cannot be neglected. This essay aims to gather typical and crystallized methods of judgements in certain cases, which could be seen as essential and accepted unwritten rules of jurisdiction concerning this field of damages.
One of the most difficult problems to solve is the question of amount. This field of damages for non-pecuniary loss is always problematic, because all of the cases are different. Although there are similarities between cases if we examine just damages themselves, but due to the difference of human personality it is almost impossible to give exact phrases and rules to help our judges. We can say that highest amounts are generated by assaults against physical integrity and life. Examination during a legal procedure concentrates on the stress caused by the injury, number of injured rights, age of the injured person and the durability of the harm. If the injured person contributed to the injury, it generates reduced amount of damages.
Method of compensation is really simple for the first time. Hungarian legal system knows two different types for the method of damages: in kind or in money. Former one is inapplicable for non-pecuniary losses. If we compensate in money, there are two solutions: injured person can get the whole sum immediately or we can choose allowance as well. The adaptation of allowance is rather small in Hungary, in spite of the advantages this legal institution could offer. It does not mean res iudicata, so it is flexible and offers opportunity to adjust to changed circumstances in the future: both duration and amount of allowance could be changed.
It is an interesting question whether personal circumstances of the misdoer could be examined when calculating the amount of allowance. The answer is not unambiguous. Civil law focuses on compensation for the injured party, not the punishment of the misdoer. In spite of this essential lemma, it is necessary to take into account the solvency of the defendant, if we want the plaintiff to get the adjudged amount really.
Youth is not the only reason of allowance, sometimes old age could be a well-based legal ground for application of this method of compensation as well. It is really important to examine the personal circumstances of the injured party to choose between these two methods: which one serves the aim of compensation, moderation of lost joy of life the most.
Civil Code precludes the possibility to apply both methods together for the same plaintiff. In my opinion the solution of German Civil Code (BGB) should be considered. BGB allows both methods together. It means that possibilities could be wider and fit better to the actual case and its circumstances.
Although obligation of damages has two parties traditionally, in a legal procedure of damages for non-pecuniary loss this bipolar situation can be proven false. On the part of the misdoer it is an interesting question what kind of damages can be blamed the state. In Hungary we can meet rules order the responsibility of the state in the field of medical damages or damages for unlawful arrest and illegal imprisonment. Amounts of damages are the highest in these situations.
On the part of the injured person an often argued problem the position of secondary victims’ claims. These claims are always problematic, because personality rights belong closely to the person himself and there is no possibility to inherit them. Hungarian Civil Code admits compensation for relatives only in case of injuring reputation of a dead person. There are several decisions in which courts admit these claims on the ground of their sui generis base. It is a decent solution, but because of the uneven jurisdiction it needs codifying.
We can say that there are a lot of jurisdictional constants in Hungary in connection with damages for non-pecuniary loss. These are easy to collect and most of them are able to be codified in a strictly non-taxative style. But this examination showed that doubtful questions can also be found in Hungary especially the application of allowance, claims of secondary victims. To arrange these problems, starting point should be jurisdiction itself.
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Rethinking principles of civil procedure - expectations and experiences:
118-127.Views:218The central topic of the present study is certain features of the principles re-regulated during the codification of the Hungarian Code of Civil Procedure. It can be said that the number and content of the principles have also become more concentrated as a result of codification.
The Act CXXX of 2016 on the Code of Civil Procedure (hereinafter “CPC”) brought a number of conceptual changes, which can also be observed in terms of principles. The principles chapter of the CPC has been renewed, some principles that are not yet known in Hungarian civil procedure law have been laid down. The present study reviews these changes and also seeks to take a position on the content of the principles, with a separate examination of the Principle of Concentration of Proceedings, which has also been identified as a priority objective by the legislator.
The paper analyzes the academic debates on the principles and attempts to answer whether the experience of the period since its entry into force has met some of the expectations for the reform of the principles. The study examines the changed regulations that have led to opposing views in the literature.
An important topic of the study is that, in line with the divided structure of the proceeding, the court's intervention activities have also changed. This change can also be observed in the principles, as the Principle of Court's Obligation to Intervene has emerged as a new principle. Some features of the Principle of Truth-telling and Principle of Good Faith are also analyzed.
The study seeks to shed light on the fundamental issues of civil procedure through foreign examples, in which certain elements of German legislation are mainly mentioned.
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Functions and interpretation of principles in the German contract law
Views:52To describe the functions of principles we can say that all of them are fundamental basis of an area of law. They declare or solve concrete debates between the parties. If there is a problem with interpreting of a rule in the civil code, judges has this helping hand. In Germany the development of principles in the field of contract law has a really unique historical root. At the time of BGB’s birth, the German Civil Code did not accept any exculpation under the rule pacta sunt servanda. Moral philosophers acknowledged that a contract as private interest of the parties needs special protection from the state. It is not only a personal relationship, because self welfare leads to welfare of the public. The law has to regulate this field and give instruments of protection for both parties to ensure peace and equality in the field of public relations and moral.
After the First World War, Rechtsmark (German currency) had its deepest point in its history. The inflation was so high that the performance of a contract made before the war was absolutely unfair for the supplier. For the cost of one galloon gas anyone could buy the entire stock after the war. There was a too late and too small reaction from the state for this situation. An Act had been accepted in 1925 about revalorization. The main fault of this Act was the strict and very small applicability in the field of contracts. The regulations of it were applicable only for contracts with large economic potential.
German jurisdiction had to solve the problem. The most difficult part of this process was how to dissolve the strict paradigm of pacta sunt servanda. Oertmann, a German legal expert created the collapse of the foundation of the transaction. It meant that changed circumstances deprive the contract from its ground, the need of the party. Anybody who signs a contract has a need and tries to create all conditions of that specific contract to harmonize with his or her needs and interest. In case of an essential change of circumstances this interest modifies and the original transaction became tremendously onerous for him or her. The doctrine of Oertmann was insisted on pacta sunt servanda, so after the change of circumstances the whole contract failed.
Jurisdiction in Germany accepted Oertmann’s doctrine with a completion. Judges vindicated the right for themselves to modify the contract to be suitable for the new interests of the parties. This modification meant the implementation of clausula rebus sic stantibus into German contract law. It became applicable worldwide in the field of long term relationship of the parties.
In this essay I examine not only the development of these contractual principles in Germany but the effectiveness and functions of them. I describe and define the legal interest of regulating contracts and what is the connection between private and public interest in the field of the law of contracts. As a defect of the contractual procedure non-performance and other breach of a contract have special importance in civil law. Good faith is a basic principle of civil law in Hungary too and in most European civil codes. The interpretation of German good faith theory (Treu und Glauben) is significant from the viewpoint of the judicial modification of contracts. In case of clausula rebus sic stantibus if the party wants to ground his or her claim, he or she has to prove the good faith as a moral standard to be an exculpation under the heavy burden of pacta sunt servanda. The conclusion is that in Germany the basic element of private contracts is not the consent of parties but good faith of them. The socially excepted moral appears through the requirement of good faith of the parties. The law has to ensure that in any period of a contractual relationship this good faith exists.
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Regulatory issues of intellectual property rights
27-33.Views:166The study finds that the regulation of intellectual property is dominated by civil law rules. The old Civil Code expressed the correlation with the law of intellectual property and regulated the legal protection of know-how, however, the legal material could be found in the separate legal acts organically related to it. The new Civil Code, Act V of 2013 is no longer entitled as intellectual property rights but “copyright and industrial property rights”, and know-how has been protected as a form of trade secret. The homogeneous nature of copyright is broken by Act XCIII of 2016, which provides for collective rights management. In the field of industrial property protection, the most problematic legal institution was know-how. The LIV Act of 2018, which was born after the rules of the new Civil Code, opens a new chapter in the regulation of know-how. In this connection, the law transposes Directive 2016/943/EU into the Hungarian law. The legislator therefore chose the solution that it has incorporated the new conceptual approach, legal institutions, and rules of procedure for the protection of business secrets into national law not by creating them in the Civil Code but by creating new legislation. In this way, the private secrets of natural and legal persons will continue to enjoy the protection of personal rights, while trade secrets and know-how will enjoy protection based on the logic and sanction system of intellectual property protection.
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Legal institutions that interrupt temporarily the chain of procedural actions of the judicial foreclosure
9-18Views:196This study presents the legal institutions that temporarily interrupt the chain of procedural actions of the judicial foreclosure, namely the interruption, suspension and intermission of the foreclosure. In the publication - as an acting lawyer - pragmatism has an emphasised role and it highlights the problems that arise when applying the legal institutions and offers alternatives and de lege ferenda solutions. The author seeks to draw the reader's attention to the interrelations and differences between legal institutions for the sake of clarity. Furthermore the speciality of this study is that it uses the civil procedural regulations which are applicable as a background standard for the Code of Judicial Foreclosure, from the new Code of Civil Procedure which entered into force on 1 January 2018, referring in several places simultaneously to the regulations of the previous CCP.
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The role of interest in civil processes
42-46Views:291The study reviews the enforcement of various interest-related claims in civil litigation and their special litigation rules, emphasizing that there are few specific norms in the Code of Civil Procedure from a procedural point of view compared to the enforcement of pecuniary claims. The study compares the interest provisions of the Act III. of 1952 and the Act CXXX of 2016, and seeks to provide adequate answers to enforcement issues arising from regulatory gaps. The article states that the law generally sets out some specific procedural provisions for contributions to be enforced together with the principal claim, which are also subject to interest as a contribution to the principal claim. The number of purely interest-specific provisions in our current law is negligible. The analysis covers the following specific legal provisions concerning interest: the amount in dispute, appeal against the interest provisions of the judgment at first instance, the admissibility at second instance of an increase of the claim for payment of interest, the admissibility of an application for review only of the provisions of a final judgment concerning interest. The study evaluates trends in court practice through analysis of ad hoc court decisions. The author states that uniform and coherent case law is in the best interests of the claimants based on clear legal provisions.
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What are the limits? - Thoughts about Certain Issues of the Active Judicial Role
61-73.Views:207The Act CXXX of 2016 on the Code of Civil Procedure introduced the image of the managerial judge into the Hungarian civil litigation. This perception means that the judge has to take part actively in the litigation. It is not just the notion of the Hungarian legislator but it is also an international requirement. The new principle – so called court inducements – entitles and obligates the judge to offer some kind of support to the parties in order to faciliate to concentrate the actions. That means the judge has to conduct substantively the proceedings, which may expand on the merits, if the party’s case initiation statement is incomplete, not sufficiently detailed or contradictory. However, this support is not equal to giving advices like a legal counsel does. The judge can not overtake the function and task of neither the party nor the legal counsel. The judicial activitiy is meant to provide the party’s opportunity to enforce his claims and a proper level of legal protection. This image of an active and managerial judge originates from the Austrian social model of litigation which goes back to 1895. But it is also not unfamiliar to the Hungarian litigation because the Act I of 1911 on the Civil Procedure was based on an active role of the judge too. My goal is to ascertain what the essence and function of the active role of the judge is. I also examine that in what kind of situations and in what procedural phases the judge can offer support to the parties. Furthermore I intend to define the limits of the judicial management. In addition, I analyse how some interpretative organisations view the issues that appeared in the judicial practice.
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Considerations on legal remedies in Romanian civil proceedings
Views:91In the system of the Romanian Code of Civil Procedure the legal remedies that can be exercised against judgements are: the appeal, the second appeal, the appeal for legal contest in annulment and review. The appeal is the only ordinary remedy, while all the others are classified as extraordinary remedies.
The reasons for which the legal remedies may be exercised vary depending on this qualification, which means that the appeal is applicable for any dissatisfaction of the parties, whereas the second appeal, the legal contest in annulment and the review may be exercised only for reasons explicitly defined by the law.
The extraordinary legal remedies cannot be exercised as long as one may lodge an appeal.
A legal remedy can be exercised against one judgement only once, if the law provides the same term of exercising the legal remedies for all existing grounds on the date of declaring that specific remedy.
The judgement is subject only to the remedies provided by the law, under the respective terms and conditions, regardless of the particulars of its statement of reasons.
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A büntetőjogi mediáció gyakorlati aspektusai
1-12Views:126Mediation is a conflict-management method designed to achieve restorative justice (offenders should assume responsibility and pay the penalty for their deeds, with the greatest emphasis on reparation of the victim, and the affronted community should be conciliated). This method may be applied to solving a variety of disputes or conflicts (e.g. disputes involving neighbours, families, couples, and companies).
The mediation technique has already been used in the fields of civil law, family law and employment law. From 2007 onwards, it can also be applied in criminal procedures. According to Article 221/A of the Code on Criminal Procedure (Act XIX of 1998) the mediation process may be used in criminal procedures dealing with certain offences against the person, property or traffic offences if the crime is punishable with no more than five years imprisonment, and the offender has made a confession during the criminal investigation.