Showing papers on "Judicial opinion published in 2022"

Does Group Familiarity Improve Deliberations in Judicial Teams? Evidence from the German Federal Court of Justice

Abstract: Collegiality plays a central role in judicial decision-making. However, we still lack empirical evidence about the effects of collegiality on judicial decision-making. In this article, I argue familiarity, an antecedent to collegiality, improves judicial deliberations by encouraging minority dissent and a more extensive debate of different legal viewpoints. Relying on a novel dataset of 21,613 appeals in criminal cases at the German Federal Court of Justice between 1990 and 2016, I exploit quasi-random assignment of cases to decision-making groups to show that judges' pairwise familiarity substantially increases the probability that judges schedule a main hearing after first-stage deliberations. Group familiarity also increases the length of the justification of the ruling. The findings have implications for the way courts organize the assignment of judges to panels.

A comparative investigation of metadiscursive clarifying devices in the abortion discourse of the U.S. Supreme Court

Abstract: Based on previous research that identified metadiscursive clarifiers as a means of discursive control and subversion, this study investigates the use of the devices in the abortion discourse of the U.S. Supreme court. It examines four sub-genres of judicial opinion (majority opinions, dissents, regular concurrences, and special concurrences) and their contribution to the development of this area of law. The quantitative analysis reveals that the separate opinions contained significantly more clarifying devices than the majority opinions. This represented a missed opportunity for majority writers to control positions asserted in separate opinions. More qualitatively oriented analysis shows the use of the devices as reflecting the nature of the sub-genres examined: regular concurrence writers used clarifiers to support the majority opinion; special concurrence and dissent writers both used clarifiers to attack the majority opinion. The analysis also reveals that clarifiers often reveal prescient tensions within the law; positions expressed with the use of the devices often became majority positions in subsequent cases.

Ethnic Bias in Judicial Decision Making: Evidence from Criminal Appeals in Kenya

Abstract: Understanding sources of judicial bias is essential for establishing due process. To date, theories of judicial decision making are rooted in ranked societies with majority–minority group cleavages, leaving unanswered which groups are more prone to express bias and whether it is motivated by in-group favoritism or out-group hostility. We examine judicial bias in Kenya, a diverse society that features a more complex ethnic landscape. While research in comparative and African politics emphasizes instrumental motivations underpinning ethnic identity, we examine the psychological, implicit biases driving judicial outcomes. Using data from Kenyan criminal appeals and the conditional random assignment of judges to cases, we show that judges are 3 to 5 percentage points more likely to grant coethnic appeals than non-coethnic appeals. To understand mechanisms, we use word embeddings to analyze the sentiment of written judgments. Judges use more trust-related terms writing for coethnics, suggesting that in-group favoritism motivates coethnic bias in this context.

Conceptual way of cognition of judicial reforms in Russia (peer review on the monograph of V. M. Bolshakova “The Dynamics of Judicial Reforms in Russia in late XIX – early XX centuries (historical-legal research)". RANEPA, Derzhavinsky Publishing House, 2021. 660 p.)

Abstract: This article provides a peer review of the conceptual monographic research of PhD in Law, Docent Valentina Mikhailovna Bolshakova “The Dynamics of Judicial Reforms in Russia in late XIX – early XX centuries (historical-legal research)”. The relevance and timeliness of the monograph are determined by the need to acquire the knowledge on the judicial sphere for the purpose of implementation of the effective and fair justice, as well as establishment of an optimal and modern judicial system. The solution to this problem is requires scientific substantiation. The Russian historical-legal science has accumulated a vast number of works that describe the functionality and social role of the judiciary. However, there are no research within the historical-legal literature dedicated to the dynamics of judicial transformations in the structural, organizational, and functional aspects of the judicial system. The monograph of V. M. Bolshakova successfully fills the gap in the field of studying judicial structures, representing fundamental research on the dynamics of the Russian judiciary, which is well-founded from a general theoretical, applied and historical perspectives. It not only reveals the details of the structure of the judicial system at various stages of its existence, but also the causes and consequences of judicial reforms and transformations. The authorial analysis of the judicial reforms also contains the concept of their dynamics. The examination of judicial institutions is of particular value.

“In This Case, Can There Be No Talk About Such a Justification Through Circumstances”? A Case Study of the Invocation of Cultural Defense Outside the Common Law

Abstract: Cultural defense as a court strategy was developed in the countries of common law, which are characterized by contradictions of criminal proceedings and a wide scope of a party’s impact on the course of a trial. However, its appearance is not limited to any particular legal system. The subject of this chapter is a case study of a court case in which arguments based on cultural defense were raised in particular conditions—within the Polish legal system, in a country that is relatively homogeneous and in which the main process initiative is within the judges’ competence. In accordance with the characteristics of an intensive case study, the research consisted of examination of court files, which included testimony of an expert in culture, critical analysis of the text of judicial opinions and analysis of relevant media publications. Application of such multi—method approach enabled detailed consideration of the issue of admissibility of invocation of cultural defense in particular institutional and formal settings. It also depicted necessity of adaptation of the framework of the case study in reference to court case as a particular subject of research.

Courts as Consiglieri: Advisory Opinions in a Comparative Constitutional Perspective

Abstract: AbstractCourts in many jurisdictions, whether national or international, contribute to the process of constitutional law-making, not just by exercising their traditional adjudicative powers, but also as advisers. Several well-known contributions to European or domestic constitutional law are laid down in advisory opinions. And yet judicial advice-giving remains highly controversial. Much of the debate focuses on ‘advisory opinions’ as a doctrinal concept. We argue that this focus is too narrow. It does not fully capture the rich variety of judicial advice-giving. It moreover leads to a static approach of the concept: ignoring the different contextual and institutional settings in which judicial advice is requested. Instead, we advocate a broad, functional approach which is rooted in an understanding of judicial advice-giving as a communicative act by which courts contribute to the process of law-making on the basis of judicial authority and persuasion. This focus on judicial advice as a social construct, rather than just a legal concept, allows us to conceptualize judicial advice-giving on the basis of three variables: the functions advice may play in the process of law-making, the types of advice involved, and the different institutional modes of judicial advice. We then briefly discuss the historical development of judicial advice-giving, zooming in on the main concerns that have inhibited some jurisdictions from embracing the practice: separation of powers and judicial independence. By connecting function to content and form, we attempt to show that the normative evaluation of judicial advice-giving requires a nuanced approach, moving beyond the binary question whether or not advisory opinions can be squared with the judicial function in a liberal democracy.KeywordsAdvice theoryadvisory opinionsconstitutional courtsjudicial independencereference proceduresseparation of powers

How can the approval of judges (judicial nominees) to the U.S. Supreme Court affect American politics?

Abstract: The new nominees to the U.S. Supreme Court are inevitably and inevitably political. While observers fear that political disputes over candidates undermine qualified candidates' support and threaten the Court's legitimacy, there is little empirical evidence to support these claims. The author argues that the judicial candidates' political struggles provide signals that shape public opinion about the candidates and the Court and polarize public opinion along party lines. Data from a joint experiment conducted in the early days of the Trump presidency supports this argument. The political rhetoric attributed to President Trump and Senate Democrats has significantly polarized partisan views on the candidates and assessments of the Court's legitimacy, with Republicans (Democrats) expressing significantly more (less) favorable attitudes. Additional analyses show that the challenge generates various partisan reactions that affect the candidate's impartiality opinion. These findings challenge existing views that portray the judiciary's attitude as resistant to partisan considerations and have important implications for the Court's legitimacy in a polarized era. Keywords: joint experiment, judicial legitimacy, judicial nominations, polarization, public opinion, and the courts.

Litigating for Improved Medical Care

Abstract: In 1976, the Supreme Court first recognized that people in prison have a constitutional right to health care for serious medical needs (Estelle v. Gamble, 1976). In the decades that followed, both the incarceration rate and the cost of healthcare have skyrocketed, increasing incentives for resource-conscious institutions to restrict care in ways that harm incarcerated people and the public health. Litigation can provide an important check on the worst of those abuses at both individual and systemic levels, though in the decades since Estelle was decided, judicial decisions, legislation, and correctional policy have raised significant obstacles to ensuring the right to constitutionally adequate healthcare is realized. This chapter discusses the parameters of the Eighth Amendment right to adequate health care, provides an overview of correctional medical care litigation and the legal standards courts use in assessing claims of constitutionally inadequate care, and explores how those standards have been applied to different types of health-care issues. The chapter also discusses institutional reform litigation, exploring how large class-action lawsuits may be used to address systemic deficiencies in correctional medical care.

The report of technical-scientific or medico-legal finding and its correlation with the judicial expertise report

Abstract: In the criminal process, without the judges’ rigorous knowledge of the criminal act, actually produced, of the perpetrator’s person, of the objective circumstances that preceded, accompanied or followed the commission of the crime, of the subjective circumstances, as well as without clear knowledge of other circumstances. related to the case, the administration of justice is sometimes impossible. In order to ascertain the objective truth in the criminal cases of the factual data in the vast majority of cases it is necessary to apply special knowledge. In all the cases in which the expertise is spoken, a research carried out by the judicial expert is considered in order to clarify some questions that require special knowledge in one area or another. The most frequently asked questions are in the field of science, technique, art or craft. The law on judicial expertise and the status of the judicial expert defines judicial expertise as a scientific-practical research activity, carried out in the civil, criminal or contraventional process (hereinafter referred to as the judicial process) in order to find out the truth by carrying out methodical investigations with the application of special knowledge and technical-scientific procedures for drawing some argued conclusions about certain facts, circumstances, material objects, phenomena and processes, the human body and psyche, which can serve as evidence in a judicial process

Juridical Analysis of Dissenting Opinions of Constitutional Judges in Constitutional Court Decisions

Abstract: This research will raise the issue that will be studied is, First, the regulation of dissenting opinion in the Constitutional Court's Event Law. Second, the legal power of dissenting opinion in the Constitutional Court Decision. Third, the legal implications of dissenting opinion in the Constitutional Court Decision. This resulted in the conclusion First, the arrangement of dissenting opinions in the constitutional court's guidelines in this case in the FMD cannot be found as a whole. The arrangement of dissenting opinion in the PMK independence of constitutional judges in conveying their opinions is still maintained. Second, explicitly, there is no setting on dissenting opinion. The phrase used in Law No. 24 of 2003 concerning the Constitutional Court is "the opinion of different members of the panel of judges". Third, the legal implications of dissenting opinion in the Constitutional Court's decision are legal uncertainty, violation of the hierarchy of laws and regulations, and the absence of legal order. The formulation of dissenting opinion is necessary to clarify its position in the law of events in the Constitutional Court. This can only be done if the legal instruments that govern it give full legitimacy to constitutional judges in dissenting. The author's advice in this study is to strengthen the legal power of dissenting opinion, as a preventive measure against future legal reforms to ensure certainty, justice. and the usefulness of the law for the whole society

Legal Arguments and Case Law Precedents: An Experiment in Judicial-Sociological Experiment Between Practice and Theory

Abstract: The object of this paper is to analyze some main types of judicial arguments based on precedents to grasp their relevance and range in practice. The analysis is drawn from the case law of the Italian Court of Cassation Civil United Sections, to elicit a comparison between the uses of precedents in different legal systems. However, the analysis is of an explanatory or critical-reconstructive nature and illustrates a series of uses and problems linked to judicial reasoning, the scope of which is general and therefore goes beyond the specific juridical context at hand. The analysis is conducted from an internal point of view and, particularly from the standpoint of the decision-maker (i.e., the judge) and addresses some vexatae quaestiones surrounding the idea that case law is the source of law in practice. This study the opinion that the argument surrounding precedent is, in fact, a very heterogeneous and much more extensive family of arguments than what is usually assumed from traditional taxonomies of judicial arguments. Moreover, the study defends the opinion that case law is inevitably a 'source of law' for pragmatic reasons inherent to judicial reasoning.

Judicial Decisions in International Law Argumentation

Abstract: This book explores the question of how the multiplication of judicial decisions on international law has influenced the way in which legal findings in international law adjudication are justified. International law practitioners frequently cite judicial decisions to persuade. Courts interpreting international law are no exception to this practice. However, judicial decisions do much more than persuading: they enable and constrain interpretive discretion. Instead of taking the road of the sources of international law, this book turns to the somewhat uncharted terrain of legal argumentation. Using international criminal law as a case study, it shows how the growing number of judicial decisions has normalised courts’ resort to them in legal justification and enabled some argumentative practices to become constitutive of international law. In so doing, it critically revisits the implications of an iterative use of judicial decisions, and reassesses the influence of the ‘judicialisation turn’ on the ways in which the

Indian “Love Jihad” Goes to Court

Abstract: In the chapter, the author address the problem of “Love Jihad”, a conspiracy theory suggesting that Indian Muslims, to take control of India, seduce non-Muslim women to force them to convert to Islam. Focus is put on a case study of three judicial decisions (from 2016 to 2018) in the case of Hadiya, a young woman who converted from Hinduism to Islam and who had to fight in court for her freedom to do so, against her father. The phenomenon of “Love Jihad”, its background, and the reasons underlying its discussion in India are explained. Main aim is to reveal what arguments were used and what assumptions concerning selected social issues can be drawn from them. It is relevant especially from the point of view of culture-forming and educational functions of judicial opinions. Culture-forming function concern the contribution of judicial opinions to the culture and the relation between the justice system and society, whereas educational function concern the communication of proper behaviour, which is reinforced by the fact the court in principle acts as an impartial entity in the trial.

«Separate opinion» as a unique independent genre of judicial discourse: practice of foreign courts

Abstract: The article examines the main characteristics of a separate opinion of the judge as a unique independent genre of judicial discourse. It is emphasized that a special opinion of consent, or simply opinion, is declared in cases where the judge has no objection to the decision of the college itself and joins it, but either considers the above arguments or ways of resolving the legal dispute unsuccessful, or brings to argumentation additional consideration. This type of special opinion is characterized by greater freedom of expression of legal position in terms of content and arguments. It is noted that the constitutional justice of Ukraine formed a model of complete openness of a separate opinion of the judge of the Constitutional Court of Ukraine, the highest degree of which is the publication of a separate opinion together with the decision. A separate opinion of the judge of the Constitutional Court of Ukraine is determined by such that should not be confidential. It is proposed to identify a special opinion of a judge of a collegial body as an optional, structural and functional element of a judgment that is entered into the text of a decision or attached to it in the form of a separate document that has no obligatory legal force, but exists in an inseparable logical, semantic and structural. The main court decision, which determines its content and context and is characterized by individual argumentation, emotionality, imagery and evaluation. A separate opinion is an expression of a position on an issue that has already been decided by the court. This is the cry of the soul about the fact that certain arguments of the judge were not reflected in the motivational part of the court decision, or he does not agree with the decisive part of it. Special opinion is a unique independent genre of judicial discourse, in which argumentation is achieved, on the one hand, by logic and appeal to the letter of the law, and on the other, by the use of various means of emotional linguistic influence. The Institute of Distinctive Opinions serves as a guarantor of judicial independence and enables judges to position themselves not only as a part of the discursive expert community, but also as a sovereign person, a carrier and translator of a subjective creative legal position. Key words: a separate opinion of the judge, judicial discourse, constitutional justice, the Constitutional Court of Ukraine, legal positions, court decisions, argumentation.

Judicial Philosophy and the Public’s Support for Courts

Abstract: How do Americans’ preferences over judicial philosophy influence their support for judges and judicial decisions? Using an experiment attached to an adaptive choice-based conjoint analysis, we find that people hold preferences over judicial philosophies, that they rely on those preferences to evaluate judges and decisions, and that those preferences are not simply stand-ins for ideology and partisanship. These findings suggest that to understand people’s support for judges and judicial decisions one must pay attention to judicial philosophy.

Judicial review of the decision to open main insolvency proceedings

Abstract: Article 5 EIR addresses the judicial review of the decision to open main insolvency proceedings. It provides a legal remedy against any decision to open main insolvency proceedings. It also creates a freestanding and independent judicial remedy, which is available to all creditors and to the debtor alongside any national remedies. The commentary explores the remedy on main insolvency proceedings, which is considered as part of the toolbox to fight abusive forum shopping and COMI shifting. It discusses the freestanding right of recourse to a court in the traditional sense to challenge the decision to open main proceedings on grounds of international jurisdiction.

An integrated approach to judicial decision making: the death penalty in South Africa

Abstract: Existing judicial research has firmly established the role of the law and the courts in the political system of the United States. Yet very little systematic empirical research has been conducted to fully explore the extent to which theories of judicial behavior based upon the American judicial system are applicable to other legal systems. As a result, these theories lack generalizability and, moreover, have failed to determine if the U.S. judiciary is comparable to other court systems or simply an anomaly within a broader comparative framework. Given this void within the existing literature, this study extends several theories of judicial behavior developed in the American context to South Africa’s highest court, the Appellate Division, throughout the time period 1950-1990—roughly the rise and fall of apartheid. Specifically, it employs an integrated approach derived from both the legal and extralegal approaches of judicial decision making to a particularly salient issue area, the death penalty, and discovers that ideology and race—rather than legal factors—are perhaps the strongest predictors of death penalty decisions. The implications of these findings are that judicial decision making is much more complex than what the legal model suggests and, concomitantly, that theories of judicial behavior extrapolated from the American context are capable of similarly determining the degree to which politics plays a role within the legal system of South Africa.

Dissenting with conviction: boosting in challenging the majority opinion

Abstract: Abstract This article explores the role of metadiscourse in the realization of judges’ persuasive strategies in challenging the reasoning of the majority opinion. In particular, the article describes how dissenting judges exploit the boosting features to produce convincing arguments and control the power relationship with an audience. The findings are based on a linguistic analysis of 27 judicial dissents by judges of the Russian Constitutional Court. As regards the choice of boosting devices to be searched in the corpus, the present work adopts Hyland et al.’s (2021) taxonomy of boosters. The study shows that Russian judges make extensive use of boosters to show disagreement and challenge the majority opinion. The results have implications for our understanding of judicial dissenting as a legal genre which has been understudied in the literature, and for teaching legal writing to law students. I suggest that judge’s competence in presenting arguments includes a developed knowledge of metadiscourse.

Dissenting opinion of a judge as a manifestation of the disintegration of the judiciary board

Abstract: The criminal procedural legislation provides for the right of a judge who becomes the minority while decision-making to express a dissenting opinion in writing. This right is considered by the theory of criminal proceedings as a guarantee of the principle of freedom to evaluate evidence. It is widely believed that a dissenting opinion is a condition for a judge to sign a verdict with which he disagrees. These established positions are controversial and in need of rethinking. Purpose: to assess the appropriateness of maintaining the institution of dissenting opinion in the context of legal relations between the court and other participants in criminal proceedings, on the one hand, and within the judicial board, on the other. Methods: the methodological basis of the study is the dialectical method; in addition, general scientific methods of analysis, synthesis and a systematic approach are used, as well as special legal methods: historical-legal, legal interpretation and logical-legal. Results: the study concludes that a dissenting opinion does not have any legal effect; its sole appointment is to separate the judge’s position from that of the entire court. Such an individualization of the judge's position separates the judge from the composition of the court to which he is a member, thereby destroying the unity of the judiciary, undermines the trust of the participants in criminal proceedings and society in justice. Moreover, the existence of a dissenting opinion in the case raises groundless doubts about the legality, reasonableness and fairness of the judicial act. In this connection, it is concluded that it is expedient to eliminate the institution of judge’s dissenting opinion.

Epistemological stance and passive reporting verbs in judicial opinions: the case of BE expected to and BE supposed to

Abstract: Abstract This study examines the discourse functions of BE expected to and BE supposed to in the genre of judicial opinion, providing insights into discipline-specific practices of epistemological positioning. Drawing on the 130 million words Corpus of US Supreme Court Opinions, it looks at how the two mindsay constructions were deployed in judicial writing over a period of more than 200 years, and identifies divergent frequency patterns associated with their use. As the findings reveal, in the opinions, on the one hand, BE expected to tends to co-occur with reasonably (can/could (not) reasonably be expected to) and is used to create a semblance of objectivity. BE supposed to, on the other hand, favors the present tense and third-person reference (which/it is supposed to) and serves as a distancing device. The paper also compares the frequency patterns involving BE expected to and BE supposed to found in the opinions with those attested in the Corpus of Historical American English, and it demonstrates that judicial writing exhibits trends which clearly differ from trends noted in non-judicial registers.

Constitutional identity, expressivism, and constitutional change through judicial interpretation: The Indonesian LGBT case as a case study

Abstract: Constitutional change can be produced through judicial interpretation when a particular dictum becomes informally entrenched and creates a new constitutional meaning without the need for a formal amendment. However, scholarship has not yet scrutinized the form of legal reasoning that may be used to push for such a change. The purpose of this article is to analyze the role of expressivism in justifying constitutional change through judicial interpretation. For this purpose, I have developed the expressivist framework into what I call “operationalized expressivism,” which refers to constitutional courts interpreting references to constitutional identity in the constitution such as to create a juridical effect. I then use the dissenting opinion in the Indonesian LGBT case as a case study of how operationalized expressivism can initiate a constitutional change. I have selected this particular opinion because of its potential to radically transform the constitutional landscape of Indonesia, as the dissenting judges have declared the Indonesian Constitution as a “Godly” Constitution that requires all laws to be consistent with religious values.

The Risks and Control of Judicial Application of Legal Doctrine

Abstract: In judicial practice, the judicial application of legal doctrine is necessary and reasonable, but its application is still in an irregular and risky state, because the theoretical and practical communities have failed to conduct orderly and effective dialogue and communication in this process. Due to the characteristics of the stage of development of legal doctrine itself, the lack of positive interaction between the theoretical and practical circles, as well as the difficulty of integrating legal doctrine into the judiciary and other problems exist, which will lead to the abstraction of the argumentation of the reasoning of the judges, the decline of the credibility of judicial decisions, the reduction of the attributes of judicial authority and other risks. In order to effectively prevent these risks, legal doctrine in judicial practice should comply with the principles of strengthening judicial authority as the ultimate goal, strengthening the status of legal subjects as the fundamental starting point, and solving practical problems as the guide.

Evolution of the Judicial Opinion

Abstract: In this sweeping study of the judicial opinion, William D. Popkin examines how judges' opinions have been presented from the early American Republic to the present. Throughout history, he maintains, judges have presented their opinions within political contexts that involve projecting judicial authority to the external public, yet within a professional legal culture that requires opinions to develop judicial law through particular institutional and individual judicial styles. Tracing the history of judicial opinion from its roots in English common law, Popkin documents a general shift from unofficially reported oral opinions, to semi-official reports, to the U.S. Supreme Court's adoption in the early nineteenth century of generally unanimous opinions. While this institutional base was firmly established by the twentieth century, Popkin suggests that the modern U.S. judicial opinion has reverted—in some respects—to one in which each judge expresses an individual point of view. Ultimately, he concludes that a shift from an authoritative to a more personal and exploratory individual style of writing opinions is consistent with a more democratic judicial institution.

Making Decision in Criminal Proceedings within a General Theory of Forensic Science in Romania

Abstract: The judicial process of making decision in criminal cases is, generally speaking, increasingly analysed within a complex framework, one of these being harmonized with principles, and concepts organized along with the forensic activities of investigation. To this regard, the Romanian judicial activity in criminal cases is not away from these values of respecting standards in criminal proceedings. This situation is particularly viewed during the judgment phase of criminal proceedings at the stage of making decision. Taking into consideration all these aspects, the current paper is focused on the best practices of the activity of decision making in criminal cases in Romania, particular attention being paid to the forensic science and the way in which it influences the process of achieving decision in the framework of administering and assessing evidence based on forensic activity of investigation. An in-depth analysis of both the doctrine trends and the case-law presentation on the topic of decision making in criminal proceedings within the forensic framework in Romania will be presented, as well as the case-law remarks and comments of this topic. The idea of this paper was conducted by the fact that several criminal cases are usually solved by taking into account the involvement of forensic investigation records of gathering evidence which help judicial bodies in making decision in criminal proceedings.

The bias in judgement: when “naïve” knowledge challenges expert knowledge in criminal trials

Abstract: Purpose The purpose of this paper is to offer a discussion on the socio-cognitive biases involved during a criminal trial, in accordance with the literature in this field. Design/methodology/approach Whether it is the biases of representation, availability or anchoring (Fariña et al., 2003), they have been widely studied in social psychology and constitute a relevant angle of analysis in the judicial context. Findings This paper outlines the issues related to the reality of the judicial decision, the psychological dilemmas that arise from it, as well as the normative pressures underlying the need to rationalize the decision. Finally, the status of psycho-legal expertise and the importance given to it is also discussed with regard to these issues. Practical implications This paper may help provide the diverse socio-judicial actors with some elements for questioning the psychological mechanisms that may intervene in the decision-making and therefore create a sense of conscientization necessary to optimize the quality of decision-making. Originality/value This paper may help provide the diverse socio-judicial actors with some elements for questioning the psychological mechanisms that may intervene in the decision-making and therefore create a sense of conscientization necessary to optimize the quality of decision-making.

Types of judicial activity and its elements

Abstract: The relevance of the study of judicial activity is determined by the need to improve its quality. Judicial activity directly affects the implementation of various human rights and freedoms, one of which is the right to a fair trial. In addition, knowledge about judicial activity needs to be systematized and generalized in order to use it most effectively. Judicial activity, as a rule, is considered while a number of other relevant aspects are being studied rather than as an independent category. The research mainly relied on the method of materialistic dialectics as well as the methods of information analysis and synthesis, the formal-legal and comparative-legal methods. The empirical basis of the study was an analysis of the legislation of the Russian Federation related to the issue of legal regulation of judicial activity, as well as an analysis of the data of the Judicial Department at the Supreme Court of the Russian Federation.

То the question of judicial law-making in the russian federation

Abstract: Актуальность темы исследования обусловлена обострением дискуссии в профессиональном сообществе о роли судебных актов в российской правовой системе и правоприменительной практике, проявлением тенденции судебного правотворчества, что не является характерной чертой российской правовой системы. Целью исследования является анализ позиции российского судейского корпуса по вопросу о возможном применении судебного прецедента в правоприменительной практике в России, выраженной в конкретных решениях судебных инстанций различного уровня. Методологическую базу исследования составляют как общенаучные методы научного исследования: анализ, синтез, умозаключения от общего к частному и от частного к общему, так и специально-юридические методы: логико-правовой, сравнительно-правовой. Автор пришел к выводу о том, что нормы российской Конституции о разделении властей и компетенции судебных органов, а также о подчиненности судей только Конституции и закону исключают возможность осуществления судьями правотворческой деятельности и, следовательно, не позволяют говорить о возможности применения в России судебного прецедента в качестве источника права. Анализ правовых позиций российских судов общей юрисдикции различных инстанций, выраженных в отдельных решениях, позволяет нам констатировать, что подавляющее большинство российских судей не рассматривают прецедент в качестве формы права в России. В России судебный прецедент официально не признан формой права, но в действительности играет немаловажную роль в правоприменительной деятельности, регулировании современных общественных отношений. The relevance of the research topic is due to the aggravation of the discussion in the professional community about the role of judicial acts in the Russian legal system and law enforcement practice, the manifestation of the trend of judicial law-making, which is not a characteristic feature of the Russian legal system. The purpose of the study is to analyze the position of the Russian judicial corps on the possible application of judicial precedent in law enforcement practice in Russia, expressed in specific decisions of judicial instances of various levels. The methodological basis of the research consists of both general scientific methods of scientific research: analysis, synthesis, conclusions from the general to the particular and from the particular to the general, and special legal methods: logical-legal, comparative-legal. The author came to the conclusion that the norms of the Russian Constitution on the separation of powers and the competence of judicial bodies, as well as on the subordination of judges only to the Constitution and the law exclude the possibility of judges carrying out law-making activities and, therefore, do not allow to talk about the possibility of applying judicial precedent in Russia as a source of law. An analysis of the legal positions of Russian courts of general jurisdiction of various instances, expressed in separate decisions, allows us to state that the overwhelming majority of Russian judges do not consider precedent as a form of law in Russia. In Russia, the judicial precedent is not officially recognized as a form of law, but in fact plays an important role in law enforcement, regulation of modern public relations.

Making Decision in Criminal Proceedings within a General Theory of Forensic Science in Romania

Abstract: The judicial process of making decision in criminal cases is, generally speaking, increasingly analysed within a complex framework, one of these being harmonized with principles, and concepts organized along with the forensic activities of investigation. To this regard, the Romanian judicial activity in criminal cases is not away from these values of respecting standards in criminal proceedings. This situation is particularly viewed during the judgment phase of criminal proceedings at the stage of making decision. Taking into consideration all these aspects, the current paper is focused on the best practices of the activity of decision making in criminal cases in Romania, particular attention being paid to the forensic science and the way in which it influences the process of achieving decision in the framework of administering and assessing evidence based on forensic activity of investigation. An in-depth analysis of both the doctrine trends and the case-law presentation on the topic of decision making in criminal proceedings within the forensic framework in Romania will be presented, as well as the case-law remarks and comments of this topic. The idea of this paper was conducted by the fact that several criminal cases are usually solved by taking into account the involvement of forensic investigation records of gathering evidence which help judicial bodies in making decision in criminal proceedings.