FINAL Flashcards
1
Q
Levels/ Structure of courts/ Courts of law:
A
- District courts.
- County courts.
- High courts of appeal.
- Supreme court.
- Jurisdiction + competence.
2
Q
Responsibilities of court.
A
- Protect the order of the state + society, citizens’ rights + legal interests.
- Punish those who committed a crime.
- Educate to respect lax by impose, executing + enforcing punishment.
- Control legality of state administrative orders.
3
Q
Impartiality of courts.
A
- Independence of judges: ø influenced/ ordered.
- Election of judges: diploma in law, experience + practice, clear past record.
- Participation of society in judgment.
- Publicity.
- Appealable decisions.
4
Q
Structure of public prosecutor’s office.
A
- Municipal prosecutor’s office.
- County prosecutor’s office.
- Appellate prosecutor’s office.
- Chief Prosecutor’s.
- Jurisdiction + competence= courts.
5
Q
Responsibilities of public prosecutor’s office.
A
- Control + protection of legality in all fields.
- Prosecution of crimes.
- Protection of citizenship rights.
- Control, supervision of legality of procedures.
- Representation of prosecution in legal proceedings.
- Participation in private cases.
- Supervision in private cases.
- Supervision of penitentiary system.
- Order, supervise/ carry out investigations.
6
Q
Participants in civil suit:
A
- Court.
- ( public prosecutor).
- Plaintiff: voluntary role.
- Defendant: forced role.
- Intercessor: legal interest, voluntary/ accepted role.
- Representatives.
7
Q
Evidences of civil suit.
A
- With the view to ascertaining the relevant facts of a case the court shall order the taking of evidence.
- Means of proof shall, in particular, include:
> Testimonies.
> Opinions of experts.
> Documents.
> Other physical evidence.
8
Q
Means of evidence.
A
- Witness testimony.
- Expert opinion.
- Physical evidence.
- Documents.
- Pleadings of the defendant.
- Shall be traced, gathered, secured + used in compliance with the law.
- In the course of criminal proceedings, all means of evidence + all evidentiary procedures may be used without restriction. However, the use . of certain means of evidence may also be statutory.
9
Q
Who may ø be heard as witness in civil suit.
A
- Any person who cannot be expected to provide a correct testimony due to some physical/ mental disability may ø be summoned to testify.
- The witness, unless exempted from the obligation of confidentiality, shall ø be questioned in respect of any subject that is treated as classified information. The obligation of confidentiality shall remain in force after the termination of the underlying relationship.
10
Q
Who may refuse to do testimony/ testify as a witness in civil suit.
A
- By any close relative of the parties.
- Any person whose testimony would implicate himself/ his close relative referred to in the commission of crime, to the extent covered by that subject.
- By attorneys, doctors + other persons bound to confidentiality stemming from their profession, if their testimony would entail their having to breach the obligation of confidentiality, except if the concerned party granted an exemption from this obligation.
- Persons bound to keep business secrets in respect of the subjects if their testimony would entail their having to breach the obligation of confidentiality.
11
Q
Participants in criminal procedure.
A
- Court.
- Public prosecutor.
- Investigative authority.
- Accused person.
- Victim.
- Private accuser.
- Substitute private accuser.
- Their representatives.
12
Q
Who may ø be heard as a witness in case of criminal procedure.
A
- Clergymen + churchmen on issues subject to the obligation of professional secrecy.
- The counsels for the defense on issues which have come to their congnizance/ which they have communicated to the defendant in their capacity as a counsel for the defense.
- Who apparently cannot be expected to give correct testimony due to their physical/ mental cond.
13
Q
Who may refuse to testify as a witness in criminal procedure.
A
- The relative of the defendant.
- Those who would incriminate themselves/ their relatives, on the related issues, even if they have ø refused to testify under item.
- Those who are bound by secrecy owing to their profession/ public office, if their testimony would violate such secrecy obligation, unless they have been relieved, / unless the person authorised is obliged to transmit the data subject to secrecy obligation at the request of the court, the prosecutor/ investigating authority.
14
Q
Common mistakes when given forensic expert opinion.
A
- ø up to date methods.
- Definite without reason.
- Giving opinion in questions beyond his competence.
- True statement but ø justified/ explained enough.
- ø taking into account the specialities of the case, stereotyped.
- ø clear enough to everybody.
- ø keeping the deadline ( may ask for postpone).
15
Q
Breach of contract/ kind of breach.
A
- Any act/ behaviour of obligor ( seller)/ obligee ( buyer) that prevents/ encumbers the realisation of the aim of contract/ leads to any defect of the performance.
16
Q
Definition of defective performance.
A
- The goods/ service does ø comply with the legal characteristics/ with the characteristics stipulated in the contract + the defect at the time of delivery.
17
Q
What does the buyer have to prove in case of defective performance.
A
- The goods/ service does ø comply with the legal characteristics/ with the characteristics stipulated in the contract + the defect at the time of delivery.
18
Q
Legal characteristic:
A
- Legislation.
- Defect, deficiency, characteristic:
> decrease significantly/ prevent proper use or
> decrease significantly economic/ market value.
19
Q
Burden of proof, buyer.
A
- Buyer’s obligation to prove:
> defect.
> Significance.
> O.
20
Q
Definition of warranty.
A
- Objective consequence of the defective performance ( without justification) : on the basis of a contract in which the parties owe mutual services to 1 another, the obligor shall be liable to provide warranty for lack of conformity.
- On the basis of law:
> the obliger ( seller) is obliged to compensate regardless that his/ her behaviour was
• intentional,
• negligent
• or he/she acted in good faith.
21
Q
Rights of warranty in case of defect performance.
A
- Repair ( treatment)
- Replacement.
- Reduction of price.
- withdraw from the contract ( termination of contract).
- Maybe switch to other type of warranty
> If damage»> compensation.
22
Q
Exclusion of liability.
A
- May be excluded with mutual agreement.
- The exclusion is ø valid:
> If caused intentionally, by serious negligence, or by crime.
> The goods ( animal) damages life, physical integrity, health.
> There is ø proper compensation for the loss of value.
23
Q
When is warranty ø valid.
A
- The obligee’s right to warranty shall lapse after 1 yr from the delivery date.
- In connection with contracts that involve a consumer + a business party, the obligee’s right to warranty shall lapse after 2 yrs from the delivery date. If the the things supplied under a contract that involves a consumer + a business party are 2nd hand, the parties may agree on a shorter limitation period, however, the limitation period may ø be less than 1 yr in this case either.
- Time limit of warranty for animals: one year
- Obligee (buyer) knew or should have known the defect
24
Q
Definition of General/ Subjective liability.
A
- Anyone who causes damage illegally to another person must compensate him, unless he can prove that he acted as a reasonable man/ prudent person would have acted in the given situation. > Illegal action. > Damage. > Connection. > Imputation.
25
Q
Define liability of damages/ Damages in case of general/ subjective liability.
A
- Material damage: > Real loss. > Unrealised profit . > Justified expenses. > ø emotional damage. - Immaterial damage: > Violation of someone's personal rights.
26
Q
Burden of proof ( general liability) by the injured party.
A
> Damage.
> Connection between the illegal action + the damage.
27
Q
Burden of proof by the person causing the damage ( tortfeasor):
A
- His action was ø illegal/
- His action was ø negligent.
28
Q
Define strict/ objective liability.
A
- A person who pursues an activity that is considered highly dangerous shall be liable for any damage caused thereby.
Where such person is able to prove that the damage occurred due to an unavoidable cause that falls beyond the realm of highly dangerous activities, he shall be relieved from liability. - ø compensation shall be provided for any damage insofar as it originates from an activity attributable to the aggrieved party.
29
Q
How can liability be excluded in case strict/ objective liability.
A
- Unavoidable ext reason: > Vis major. > Injured party's unavoidable action. > 3rd person's unavoidable action. > Unavoidable effect of other ext event. - Time limit: 3 yrs.
30
Q
Liability of employee.
A
- If an employee causes damage to a 3rd party in connection with his employment, liability in relation to the injured person lies with the employer.
- Liability of the employee + the employer shall be joint + several if the damage was caused intentionally.
31
Q
Liability of administrative authorities.
A
- Liability for damages caused within the scope of administrative jurisdiction shall be established only if the damage results from actions/ omissions in the exercise of public authority, + if the damage cannot be abated by common remedies/ in proceedings for the judicial review of an administrative decision.
- Liability lies with the legal person exercising public authority/ with the administrative body having legal personality, on whose behalf the relevant administrative body operates.
32
Q
Liability of actions of agents.
A
- If an agent causes damage to a 3rd party in connection with his assignment, liability in relation to the injured person lies with the principal + the agent jointly + severally. The principal shall be relieved of liability if he is able to prove that eh has ø acted wrongfully in terms of choosing, instructing + supervising his agent.
- In respect of permanent agency, the injured party shall be inter alia entitles to enforce his claim according to the regulations governing the liability for damages caused by employees.
