Made available in DSpace on 2016-04-26T20:24:14Z (GMT). No. of bitstreams: 1 Patricia Elias Cozzolino de Oliveira.pdf: 1630549 bytes, checksum: 09106bdec924e8387f4f62c4a3c80538 (MD5) Previous issue date: 2016-03-02 / This study aims to draw the constitutional and legal contours of full and free legal assistance pursuant to Brazilian regulations, stating that Brazil has adopted the public model of full and free legal assistance exclusively, where the only legitimate is the Public Defender's Office. The Constitutional Model of the Process requires a reinterpretation of the provision of the legal assistance system in Brazil, especially in this historical moment when enters into force a new Civil Procedure Code (Law n.13.105, March 16th, 2015) which , unlike the previous system , there is a title for the Public Defender's Office (art. 185-187). If nothing else the constitutional amendment 80/2014 creates a specific section for the Public Defenders Office, keeping it in Chapter IV which is reserved for the essential functions of the justice, but removing it from the part reserved for public advocacy, making it clear that there is a new institution of sui generis‟ nature and designed to provide full and free legal assistance. This model should be provided by the Offices of Public Defender Services, and nowadays the assistance improperly paid by anyone other than the Public Defender offends the adversarial principle and the principle of equality of arms, translating it into real unconstitutionality. The exceptions considered are the lawyers 'pro bono' given the election of the part which constitutes them and the trust relationship that justifies the free legal aid on their part / O presente trabalho tem como escopo definir os contornos constitucionais e legais da assistência jurídica integral e gratuita prevista no ordenamento brasileiro, afirmando que o Brasil adotou exclusivamente o modelo público de assistência jurídica integral e gratuita, cujo legitimado único é a Defensoria Pública. Ocorre que o Modelo Constitucional do Processo exige uma releitura do sistema de prestação de assistência jurídica no Brasil, mormente nesse momento histórico no qual entra em vigor um novo Código de Processo Civil (Lei no. 13.105, de 16 de março de 2015) onde, ao contrário do que se dava no sistema anterior, há um título específico tratando da Defensoria Pública (art. 185 a 187). Como se não bastasse, a Emenda Constitucional 80/2014, cria um título específico para a Defensoria Pública, mantendo-a no capítulo reservado as funções essenciais à justiça, mas retirando-a da parte reservada a advocacia pública, deixando claro que surge aí uma nova instituição de natureza sui generis , destinada a prestação de assistência jurídica integral e gratuita. Esse novo modelo deverá ser efetivado pela atuação da Defensoria Pública, sendo que na atualidade a assistência indevidamente prestada por outrem, que não a Defensoria Pública, ofende o princípio do contraditório e o princípio da paridade de tratamento, traduzindo-se em verdadeira inconstitucionalidade. Exceção disto os advogados pro bono dada a eleição da parte que os constitui e a relação de confiança que justifica a assistência jurídica gratuita por parte destes

Ajzen's Theory of Planned Behavior with the addition of Perceived Moral Obligation was used to investigate the behavioral intentions of 65 caseworkers of the Children's Services Division (CSD) to cooperate with Court Appointed Special Advocates (CASAs) on cases involving abused or neglected children. Hierarchical regression analyses indicated that the subjective norms and perceived moral obligation constructs were significant predictors of the three behavioral intention categories and of all three categories combined. The two constructs, however, seem to have a considerable amount of overlap, suggesting that they may be measuring what is broadly called "social pressure to perform/not to perform 11 the target behavior. Perceived Behavioral Control was not significant in any categories and the attitude measure was marginally predictive. Possible reasons for the nonsignificant contributions of the two constructs include low inter-item correlations, questionnaire format, missing data concentrated in the two constructs, and finally, the notion that the caseworkers' attitudes and perceptions of control were of little consequence in their decisions to cooperate with CASAs. Of the three behavioral intention categories, all models performed best for the second category, 11voluntarily sharing pertinent Information about the cases with CASAs." The attitude construct performed best for this category, especially in the first and second models. Unlike the other two, this asked about the caseworkers' 11voluntary" cooperation. This finding seems to confinn the argument that Ajzen's models work better for a behavior for which one perceives greater volitional control. Prior, direct working experience with CASAs turned out to be an essential part of the attitude construct. The tested models performed better with the 54 caseworkers who had had direct working experience with CASAs in the last .. 24 months. This finding seems to indicate that the data from the 11 "no-experience" workers should not be combined with that of the 54 workers. Future studies of the theory of planned behavior with this sample are discussed.

Thesis (LLM. (Management and Development Law)) -- University of Limpopo, 2014 / The “best interests” of the child means considering the interests of the child before a life changing decision is made. The decision makers are required to take into consideration the child’s “best interests” before making a decision concerning the child; hence, the requirement that the “best interests” of the child are of paramount importance in every matter concerning the child. It is a principle developed from the common law that is used to assist the Courts and other institutions in the decision making process in matters affecting children. Institutions and Courts balance these interests in arriving at their decisions. The Courts have a wide discretion on what the “best interests” of a child are and effect should be given to these interests. The Courts have to apply the “best interests” of the child based on the facts of the particular case and simultaneously protect the rights of the child as enshrined in the Constitution. There is no “cast in stone” formula to be followed. Another difficulty is that children’s rights have to be protected in concurrence with those of his or her parents. So, there should always be a balancing of interests of the child and the other interested parties including parents. iv

This thesis takes as its starting point the proposition that the restricted development of law centres in the United Kingdom has been a result of the exercise of power by the legal profession. This was based on the evidence of the legal profession's influence on the initial development of public legal services policy and the profession's active opposition to the emergence of the first law centres in the United Kingdom. However, law centres remained on the margins of public legal services policy, despite the retreat of the profession from its original position. Thus, it was suggested that the key issue was not simply the power of the profession, but also the power of the dominant paradigms of legal practice, legal needs and legal services. This is reflected in the private practice and casework orientation of the legal aid system. Law centres challenge the dominant paradigms in many ways. They offer a multi-faceted approach to the resolution of the legal and socio-economic problems of the poor and do so in a not-for-profit, community-controlled and often collectivist context. Through quantitative and qualitative techniques employed in a multiple case study setting, this study sought to test the 'power hypothesis' empirically. Focusing on all of the law centres operating at any time between 1974 and 1997 in Strathclyde and the West Midlands, detailed accounts of significant events and periods in each centre's birth, life and, where appropriate, death were constructed. The thesis provides for the first time a social historical narrative of the development of law centres in these two locations. These accounts reveal that the profession and the dominant paradigms have had an impact on law centres in many significant ways. However, several of the greatest difficulties faced by law centres cannot be explained by reference to this conceptual framework. Accordingly, the thesis concludes that a wider theoretical framework is required to explain the development of law centres. This wider framework must draw on several existing traditions. It should recognise the importance of community, local and ethnic politics; social exclusion and ethnicity; and organisational and change management. However, it must also recognise the power of the legal profession and the dominant paradigms, as the additional challenges this brings distinguish the experience of law centres from that of other radical, community organisations.

The principle 'best interests of the child' has been expanded by the legal community in recent years to apply to any matter involving children in family law proceedings. The weight ascribed to this principle, however, has been diluted. In custody, access and child protection cases, evidence of which custodial arrangements are in a child's interests are often presented by adult parties in prolonged and costly proceedings. The judge makes an order which is intended to meet the child's "best interests", in the child's absence. This paper first examines the historical and theoretical justifications for children's rights in Canadian and international law and the "best interests" principle. Second, the concept of "legal representation for children" is explored, with specific reference to inconsistencies in the jurisprudence concerning the role of independent representation for children. This paper argues that to truly reflect a custodial or access arrangement made in the child's "best interests", it is imperative that the child's voice be heard by the court through independent legal counsel assigned to represent that child's individual needs and concerns.

The South African law and legal system can and should be a mechanism through which the lives of all resident there are enhanced through the safeguarding and advancement of the fundamental rights guaranteed in its Bill of Rights. This thesis focuses on ‘legal aid’ service delivery (broadly speaking) for the indigent in a particular locality by and through registered law clinics, other legal services providers and via other means in civil rather than criminal matters. In this regard there continue to be very substantial differences between the proper access to civil justice requirements of constitutional South Africa and the actual situation which has existed since the dawn of South Africa’s democratic era which continues unabated. Justice and equality are promised to all in South Africa, yet due to gaps in the ‘net’ of free legal services provided to the indigent, the ability to pay for legal services in civil cases often remains the deciding factor. This study examines the constitutional obligations which, it is argued, apply to the provision of free civil legal services to impoverished people in South Africa. This research considers the law as a vector for necessary positive transformation in the daily lives of those resident in South Africa, which is considered within the country’s woefully unequal socio-economic situation. It builds upon existing research and court authority which show the function of access to justice as an important promoter of the type of society envisaged by the South African Constitution - one where the enjoyment of justice and equality are within the reach of all. However, at present, if one can afford the expensive services of lawyers in civil matters, then access to justice is far more readily attainable. But the opposite is true where someone is denied meaningful access to justice through a lack of legal representation because they cannot afford prohibitively high lawyers’ costs (and disbursements) and no adequate alternatives are provided for by the state or through other means. In these circumstances a vulnerable, unrepresented litigant in a civil case faces a greatly increased likelihood of being denied proper access to a daunting and intricate legal system. There are two main reasons for concentrating on free legal services to the ‘needy’ in civil rather than criminal matters. In the first place, all available statistics show that a huge proportion of legal aid services in South Africa has been and continues to be dispensed in criminal rather than civil cases. Secondly, there has been minimal research or case authority in South Africa on legal aid and other free legal services for impoverished people in civil matters. This thesis examines the state of free civil legal service provision and the need for such assistance within the eThekwini Metropolitan Municipality, one of South Africa’s largest metropoles. This analysis includes an empirical study of the requests for free civil legal services in a particular year by qualifying potential clients in eThekwini and the degree to which free legal service providers are meeting or failing to meet those needs. The study considers the legal service provision in such matters by legal non-governmental organisations, state-supported legal service providers and the work of legal professionals in private practice acting pro bono. The thesis then proposes a model for eThekwini for coordinating (and concurrently improving) civil legal aid services, pro bono legal work and other forms of free legal assistance - like community service by senior law students and law graduates - in response to the particular needs and circumstances facing the indigent there. When referring to the concept of ‘legal aid services’, this research concentrates on legal advice, assistance and representation to indigent clients. However, the promotion of legal rights awareness to such clients is often necessary to open their eyes to the possibility of legal avenues, where appropriate, to improve their situations. Therefore this study also considers - albeit to a lesser degree - this more indirect form of legal assistance through the dissemination of legal knowledge in an accessible form to clients who would qualify for legal aid assistance. The work concludes by briefly postulating the likely appropriateness (and/or limitations) of the aforementioned ‘free civil legal service model for the indigent’ beyond eThekwini.

No description available.

This thesis titled "The notary and civil procedure" deals with the role of notaries in the legal order of the Czech Republic. Notaries public have a long historical tradition in our country, even though the organization of their profession has changed over the years. General awareness of their profession, which is considered to be very conservative, is not too widespread. It was also one of the reasons, why I chose thesis topic from this field. The aim of this work is to analyze the activities of notary, which are related to the civil procedural law and civil process, characterize the principles, which are typical for him and to clarify the position in which is the notary public while conducting each task. This thesis is divided into five chapters. First of them, except a brief history, explains basic concepts such as notary and notary office. This is followed by a description of the fundamental notary principles, assumptions for the appointment and organization of their profession. In the first half of the second chapter are summarized all activities of notaries in the Czech Republic under the current Law on Notaries. The civil process is defined in the rest of the chapter; it connects with the role of the notary to form a logical basis for the following three chapters describing the specific activities....

O Estado contemporâneo enfrenta duas realidades que exigem um esforço imediato da sua parte, quais sejam, a necessidade da proteção integral dos direitos humanos e o efetivo combate à criminalidade organizada. Nesse respeito, observa-se que esse panorama sofre uma forte influência do processo de internacionalização e da dinamicidade de um mundo ―sem fronteiras‖, que, apesar dos benefícios inegáveis a outros campos da vida social, como na economia, acarretam a transnacionalização do crime e a proliferação de espaços em que a efetividade estatal é reduzida. Desse modo, o objetivo do presente trabalho é verificar a adequação da cooperação penal internacional como meio de combate à criminalidade organizada transnacional ocorrente na Tríplice Fronteira entre o Brasil, Argentina e Paraguai, na região de Foz do Iguaçu. A análise do caso possibilita identificar a tensão existente entre a soberania estatal, calcada no princípio da territorialidade, e a internacionalização, que pressupõe a abertura das fronteiras. No âmbito do Direito Penal, em razão da titularidade exclusiva do jus puniendi, a tutela dos direitos afetados pela criminalidade transfronteiriça deve ser atingida, especificamente no caso do tráfico de pessoas que ocorre na Tríplice Fronteira, por meio da cooperação entre os Estados que compõem a região. Identifica-se, nesse caso, que dois passos primordiais devem ser adotados: a criação de mecanismos de cooperação e a harmonização dos regramentos internos com os instrumentos internacionais. No caso específico, observa-se que há uma tendência à harmonização como alternativa a facilitar a repressão ao tráfico de pessoas pelos países da Tríplice Fronteira, sobretudo em vista da adesão dos ordenamentos nacionais à Convenção de Palermo e aos seus protocolos adicionais, que ditam normas para o combate à criminalidade organizada transnacional. Além disso, a adesão a pactos internacionais que privilegiam a assistência mútua em matéria penal, tal como a Convenção de Nassau e o Protocolo de São Luís, indicam a dimensão do processo de internacionalização e da criação de espaços regionais de integração jurídica. A consequência, e também a conclusão, é que a internacionalização é inevitável ao Estado, que enfrenta diversas crises. Nesse caso, sobretudo em razão da soberania, a cooperação se molda como alternativa mais apropriada para o cenário atual na região da Tríplice Fronteira, mostrando-se necessária a adequação dos ordenamentos dos países aos regramentos internacionais, por meio da harmonização e da internalização. / Nowadays, the State faces two realities that demand an immediate effort from it, that is, the need to fully protect the Human Rights and, at the same time, effectively combat organized crime. In this sense, we observe that this panorama is submitted to a strong influence of the internalization process and the dynamics of a borderless world that, in spite of the undeniable benefits to other fields of social live, such as economics, bring about the ―transnationality‖ of crime and emergency of spaces in which the State effectivity is reduced. Therefore, the objective of this work is to verify the adequacy of the mutual legal assistance in the combat of the transnational criminality that takes place in the tri-border of Brazil, Argentina and Paraguay, in the Foz do Iguaçu region. The case analysis enables to identify the existing tension between sovereignty, based in the territoriality principle, and the internationalization, which presuppose the opening up of the frontiers. In the case of the Criminal Law, due to the exclusive control of the jus puniendi by the State, the protection of the rights affected by the transnational criminality is mandatory, specifically in the case of the human trafficking that occurs in the tri-border, by means of the cooperation between the States that exist in the region. We identify, in this case, that two primordial steps must be adopted: the creation of cooperation mechanisms and the harmonization of the internal Law in accordance with the international treaties. In the specific study, we observe that there is a tendency towards the harmonization in the combat of the human trafficking by the countries of the tri-border, specially due to the participation in the Palermo Convention and its additional protocols, which dictate norms to the combat of the transnational organized crime. Besides, the participation in international treaties that favor the mutual legal assistance in criminal matters, such as the Nassau Convention and the San Luis Protocol, indicate the dimension of the internationalization process and the creation of regional juridical integration spaces. The consequence, and also the conclusion, is that the internationalization is inevitable to the State, which faces various crises. In this case, specially due to the sovereignty, the cooperation is set as the most appropriate alternative to the actual scenery in the tri-border region, demonstrating the need to adequate the internal order of the countries to the international order, by means of the harmonization and the internalization.

This study focuses on the impact of signing " the Agreement on cross-Strait cooperation in combating crimes and mutual legal assistance" between Taiwan and mainland China. It intends to explore motivation and necessity of signing this agreement, the legal issues and operational process of this agreement, the history of cross-Strait cooperation of fighting against crimes and mutual legal assistance, and current status and problems. There are three major parts in this thesis. First, this study defines cross-Strait mutual legal assistance and of cross-Strait crime, confirms its meaning and scope, and then introduces judicial mutual assistance and cooperation in the international society of both sides. It analyzes the situation and trend of cross-Strait crimes, history of cross-Strait cooperation in combating crimes, the existing legal provisions on mutual legal assistance, and difficulties before the signing of the agreement. Secondly, this study introduces the content and effects of this agreement, includes the provisions, the actual operation, the laws related to it, the impact, and follow-up legislation as well as negative criticism. Finally, this study compares the situation before and after the signing of the agreement, understands the real benefits and finding the existing problems, and make evaluations on this agreement.