The diploma thesis analyses means of evidence used in civil proceedings. Means of evidence are integral part of proofing process which is considered to be the foundation of civil litigations. The goal of this thesis is to provide comprehensive categorization of means of evidence used in civil litigations and depict some of their specifics, including means of evidence which are not specifically regulated by the law. The thesis is based on specialized literature, legislation, and, from a large part, also on Czech courts case law. Text of the thesis is divided into four chapters, each of them further divided into several sub-chapters. First chapter is general introduction to civil lawsuit and proofing problematics. It defines proofing process itself, subject of proofing, and principles applied in the court at this stage of the lawsuit. Second chapter describes means of evidence in general. It provides reader with means of evidence definition and categorization, and also defines means of evidence which are inadmissible in the civil lawsuit. Third, the most extensive chapter, is dedicated to means of evidence which are specifically regulated by code of civil judicial procedure. It describes each of them in detail, differentiates them, and also describes proofing process in the court trial. First...

- Means of Evidence in Civil Proceedings The topic of this thesis is means of evidence in civil process. The taking of evidence is the most important part of civil proceedings, and therefore this paper presents its comprehensive summary, together with an overview of the means of evidence available in civil proceedings. This work is divided into three main parts with many subchapters. The first part deals with the process of proving in general. It describes its course, main principles and rules that govern it. Likewise, this section focuses on partial issues in the taking of evidence, such as the standard of evidence or proving negative facts. Last but not least, it deals with the burden to claim and prove facts and their distribution among the parties. The second part deals with evidence expressly provided for in the Code of Civil Procedure. In practice, these means of proof are most often found in court proceedings, and therefore their application is dealt with in a number of texts and court decisions. Nevertheless, this section outlines how the individual evidence has evolved over time. The third part deals with non- regulated evidence in the Code of Civil Procedure. Of these, the most widespread is audio and video recordings whose crucial issue is their admissibility in the light of the right to...

1 Abstrakt - Examination of a witness in civil proceedings The theme of this thesis is an examination of a witness in civil proceedings. The reason for choosing this theme was the internship at the District Court I had absolved, which allowed me to become more familiar with this topic and to know certain specifics of this means of evidence. Since the examination of a witness is one of the most frequent and used means of evidence, it deserves attention by itself. The thesis is composed of eight chapters. The first chapter deals with history of examination of a witness in the Czech lands, which was significantly influenced by old Roman civil procedure. Medieval civil proceedings in its early stages used in particular official witness provided in written form. In the course of time, the civil proceedings desisted from the official witness and oral testimonies prevailed. An interesting part of this chapter is an excursion into the heart of the oldest Czech legal documents and the view of the literal legislation of testimony. The aim of the following chapter is an overview of basic concepts and principles affecting the process of inquiry and evidence in general, which makes it easier to understand the following chapters, which are already dealing with the current legislation of examination of a witness. Under...

Law of evidence is a legal-based procedure for collecting and presenting proof. The aim of the process is to follow the basic principle of legal administrative proceedings, the principle of material truth. My thesis is based on the Administrative Code regulations, although I was also pointing to the fact that there are specific regulations that restrict or exclude the use of the Administrative Code. Despite the above-mentioned, the general and theoretical ideas of the law of evidence are applicable for all administrative proceedings. Except the principle of material truth there are other basic principles of vital importance to administrative proceedings, particularly the principle of legality and the principle of working out the case without undue delay. The core of law of evidence, however, is contained in provisions of the Administrative Code dealing with the bases for a decision in the administrative proceedings at first instance. For the law of evidence in administrative proceedings it is also often applicable doctrinal and judicial knowledge of civil and criminal law, as a connecting element between these different areas of law is the principle of material truth. The decision-making practice of the administrative courts respects the similarities between criminal and administrative punishment,...

The aim of the thesis is to answer the questions regarding the subjects authorized to take a sound or audiovisual record, and to assess the legality of using such records as evidence in administrative proceedings. The thesis is formally divided into three chapters. The first one addresses the basic concepts emerging throughout the thesis, and the admissibility of other evidence not expressly mentioned by law. The second part of the thesis offers an insight to obtaining of sound and audiovisual records, and their further use as evidence pursuant to the basic human right documents. It describes and analyses the assessment of permissibility of such evidence that is applied by the European Court of Human Rights. The last chapter works with national legislation of both public and private law, and with the case law of domestic courts; from which it infers the subjects authorized to take these records, which may be used as evidence by an administrative authority. Based on the analysis of legislation and case-law, the thesis defines subjects authorized to obtain a sound or audiovisual record, and sets conditions for such obtaining. Simultaneously, it highlights the issues resulting from the current national legislation on obtaining sound or audiovisual records by selected public authorities, mostly...

Evidence in administrative proceedings Abstract This diploma thesis deals with the taking of evidence in administrative proceedings, the aim of which is to refute or confirm a decisive fact. Administrative proceedings do not constitute a unified process; they are a diverse range of different types of proceedings rolled into on, in which the taking of evidence may be regulated in different ways. As a rule, general and special administrative proceedings are distinguished. The taking of evidence is considered to be an essential part of the administrative proceedings, but not obligatory one. In some types of proceedings, the taking of evidence is, in principle, excluded, while in others it may play an essential part. The diploma thesis is structured into five parts. The first part of the thesis defines the basic concepts appearing in the process of taking of evidence, as well as the historical development of anchoring the process of taking of evidence in the legal regulations of the Czech Republic since 1928. The next part deals with the principles that apply to the taking of evidence, be it the basic principles of action of administrative bodies or the principles of administrative proceedings themselves. The third part of the thesis deals with general administrative proceedings as regulated by Act No. 500/2004...

O direito fundamental à não-autoincriminação encontra seu fundamento jurídicoconstitucional na conexão dos princípios constitucionais da dignidade humana, do procedimento correto, da ampla defesa e da presunção de inocência. Todas as condutas passivas cuja adoção diga respeito a uma opção tomada pelo acusado na condição de sujeito processual – dentre as quais o exercício passivo da autodefesa no interrogatório judicial – estão prima facie protegidas pelo direito de não se autoincriminar. O problema da influência do silêncio do acusado no interrogatório judicial apresenta uma colisão do direito à nãoautoincriminação com o bem coletivo da eficiência da justiça penal e exige, consequentemente, soluções de acordo com os critérios da teoria dos princípios e da argumentação jusfundamental. A busca da concordância prática dos princípios colidentes exige a consideração de que, embora o comportamento processual do acusado não esteja sujeito a valorações, a omissão do acusado em responder ao interrogatório pode privar a defesa de uma oportunidade para contribuir à refutação ou ao enfraquecimento do grau de confirmação da hipótese acusatória. / The fundamental right against self-incrimination has its legal-constitutional basis in the connection of the constitutional principles of human dignity, fair trial, ample defense against criminal charges and presumption of innocence. All the passive conducts of which adoption refers to a choice of the accused in the condition of subject of the process – such as the passive exercise of self-defense at the examination – are prima facie protected by the right against self incrimination. The issue of the charged’s silence influence in the judicial examination presents a collision of the right against self incrimination with the collective good of the criminal justice efficiency and demands, therefore, solutions according to the criteria of principles theory and fundamental-legal arguing. The search for practical compliance of the colliding principles requires considering that although the processual behavior of the charged is not submitted to judgments of value, the omission of the accused in answering the examination may deprive defense the opportunity to contribute in denying or minimizing the confirmation degree of the accusatory hypothesis.

Made available in DSpace on 2016-04-26T20:21:27Z (GMT). No. of bitstreams: 1 Denise Ferragi Hungria.pdf: 483141 bytes, checksum: 1268c1617ae10b970e9ac89319482782 (MD5) Previous issue date: 2012-11-23 / This Master of Laws dissertation intend to present the practical side of the actual application of the lent evidence in the civil procedure, however is not included in our Code of Civil Procedure, has a widespread use in our legal system. The fundamental objective was to extract from the theoretical and abstract concepts the possibility to use in forensic practice the institute able to facilitate the law operator in searching of a effective protection, and of judicial economy and procedural celerity, mainly due to the constant pursuit of equity. We believe that we are positively contributing for the development of procedural laws, specially in the application of lent evidence in the brazilian legal system. On the other hand, search is also pointing out that because of the recent reforms of the Code of Civil Procedure, it is necessary to revisit the topic (lent evidence) to better fit it in the current dynamics of the Brazilian Civil Procedure, so that to avoid repetitive proofs unnecessary and contributes to the speed and procedural economy / A presente dissertação de mestrado pretende apresentar a faceta da atual aplicação da prova emprestada no processo civil, que embora não tipificada em nosso Código de Processo Civil, possui vasta utilização em nosso ordenamento jurídico. O objetivo fundamental foi extrair dos conceitos teóricos e abstratos a possibilidade de se utilizar na prática forense um instituto capaz de facilitar o operador do Direito, em busca da tutela efetiva, da economia e da celeridade processual, sobretudo em função da busca constante pela equidade. Acreditamos estar, assim, contribuindo positivamente para o aprimoramento e avanço do direito processual, em especial na aplicação da prova emprestada. Busca-se, por outro lado, também ressaltar, que em função das recentes reformas do Código de Processo Civil, faz-se necessária a revisitação do tema (prova emprestada) para melhor enquadrálo na atual dinâmica do processo civil brasileiro, na medida em que evitar provas repetitivas e desnecessárias contribui para a celeridade e a economia processuais

This PhD thesis focuses on the admissibility of evidence in criminal proceedings. Appropriate setting of limits of admissibility of illegally obtained evidence in the criminal proceedings is not only regarded as one of the main guaranties of fair justice system, but also represents topical and vital issue which raises number of legal dilemmas. The importance of the topic has been increasing recently as gathering of evidence in criminal proceedings often conflicts with the fundamental rights of individuals that are subject to severe limitation on constitutional and especially international level and that are broadly endangered during the process of collecting evidence. The core of the thesis lies in the in-depth analysis of current legislation, jurisprudence and case law dealing with the issue. Within the framework of that analysis, all of the important and disputed questions relating to the general aspects of admissibility of evidence are examined from the perspective of jurisprudence and case law; the knowledge is enriched with real practical impacts on domestic judicial practice. Special attention is paid to the issues related to the exclusion of illegally obtained evidence from the process of evaluating evidence and forming final decision on the case. The thesis does not overlook the problems...

O direito fundamental à não-autoincriminação encontra seu fundamento jurídicoconstitucional na conexão dos princípios constitucionais da dignidade humana, do procedimento correto, da ampla defesa e da presunção de inocência. Todas as condutas passivas cuja adoção diga respeito a uma opção tomada pelo acusado na condição de sujeito processual – dentre as quais o exercício passivo da autodefesa no interrogatório judicial – estão prima facie protegidas pelo direito de não se autoincriminar. O problema da influência do silêncio do acusado no interrogatório judicial apresenta uma colisão do direito à nãoautoincriminação com o bem coletivo da eficiência da justiça penal e exige, consequentemente, soluções de acordo com os critérios da teoria dos princípios e da argumentação jusfundamental. A busca da concordância prática dos princípios colidentes exige a consideração de que, embora o comportamento processual do acusado não esteja sujeito a valorações, a omissão do acusado em responder ao interrogatório pode privar a defesa de uma oportunidade para contribuir à refutação ou ao enfraquecimento do grau de confirmação da hipótese acusatória. / The fundamental right against self-incrimination has its legal-constitutional basis in the connection of the constitutional principles of human dignity, fair trial, ample defense against criminal charges and presumption of innocence. All the passive conducts of which adoption refers to a choice of the accused in the condition of subject of the process – such as the passive exercise of self-defense at the examination – are prima facie protected by the right against self incrimination. The issue of the charged’s silence influence in the judicial examination presents a collision of the right against self incrimination with the collective good of the criminal justice efficiency and demands, therefore, solutions according to the criteria of principles theory and fundamental-legal arguing. The search for practical compliance of the colliding principles requires considering that although the processual behavior of the charged is not submitted to judgments of value, the omission of the accused in answering the examination may deprive defense the opportunity to contribute in denying or minimizing the confirmation degree of the accusatory hypothesis.