The Distinction between Procedural and Substantive Law
In order to better examine the CPC, It is of utmost importance that the difference between Substantive Law and Procedural Law be laid down. Briefly, Substantive Law establishes the rights and liabilities of the concerned parties while Procedural Law primarily lays down the procedure or method to follow when such rights and liabilities need to be enforced . The Code of Civil Procedure, 1908 is one such Procedural Law that governs all civil suits in India. It should be noted that both types of law are complimentary to each other as without expeditious and inexpensive procedural law the remedy given by substantive law would be bound to fail .
The main objective of procedural law is to facilitate justice, In Saiyad Mohd. Bakar v. Abdulhabib Hasan it was observed by the Supreme Court that a procedural law should always be in aid of justice and should not be interpreted in such a manner so as to defeat the very object sought to be attained. The Government along with the Law Commission has always tried to keep this provision intact, that of procedural law being the facilitator of justice in subsequent amendments to the Code of Civil Procedure. The amendment of 1976 was brought forward keeping in mind several considerations , primarily that every litigant should get a fair trial in accordance the principles of natural justice and that every effort must be made to expedite the disposal of civil suits.
This paper seeks to explain how principles of natural justice, efforts taken to expedite the process and disposal of civil suits and ensure fair trails have been brought about by the CPC and the various amendments to the Civil Procedure Code in order to make it more effective and...
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...and 21. As described by Former Chief Justice Mahommedali Currim Chagla as “an admirable piece of legislation”, the Civil Procedure Code,1908 also has set up mechanisms such as alternate dispute machinery to reduce the backlog of cases present in the courts due to a variety of factors. There have always been several amendments to the existing CPC brought about by the Amending Acts of 1999 and 2002 among others so as to better the existing system. These amendments have been aimed solely at ensuring speedier, fair trials while also ensuring that the principles of natural justice are not violated. Thus, it is the opinion of the author that the core of Civil Procedure Code is to ensure that every trial is given justice and that there have been numerous successful efforts to make it more effective and justice orientated.
Justice can be achieved through various processes and principles if applied correctly, similarly justice can also be denied through these same processes and principles. This is exemplified through the Andrew Mallard case (M v The Queen 2005 HCA 68), and the missing persons case of Kieffen Raggett (2007) which shows how the incorrect application of processes like police investigations and coronial inquests can lead to justice being denied. Furthermore, legal principles such as; the rights of the accused and victims, are instrumental in achieving justice as shown through the application of these principles within these cases. These processes and principles can fail due to prejudged conclusions, police corruption, human error and cultural barriers
One of the few purposes of the Section 11(b) of the Canadian Charter of Rights and Freedoms is to ensure that the right for a fair trial for every person criminally tried on Canadian soil and the right for them to be tried within a reasonable time. This ensures that when the trial is commenced in court while the evidence is fresh and available during the trial. However, trials in the Canadian justice system can be delayed due to many factors in which the criticism could be on either the Crown or the accused. This essay will examine the Supreme Court of Canada case R. v. Morin. In this case, the accused was charged for impaired driving and the trial date set 399 days after the judge scheduled the trial. In total this was 444-days after the accused was charged with the impaired driving offence. The final verdict of this case set a precedent in the justice system due to the decision by the Ontario Court of appeal that decided that the trial delay was reasonable due to lack of prejudice to the accused during the delay.
The application of Browne v Dunn is established in Australia in both civil and criminal cases, however its appliance in the criminal ones differs. There is some vagueness as to when precisely the rule is breached and the penalties that apply to a party in breach. The question that arose recently is whether Browne v Dunn applies to criminal proceedings at all. The case of MWJ v R confirmed that Browne v Dunn applied to criminal proceedings in Australia, despite some differences in judicial reasoning. The case was further followed by R v MAP which moreover elaborates certain aspects of the following rule. Gleeson j and Heydon J stated that “the requirement is accepted and applied day by day in criminal trials”. One of the principles the High court articulated was that the rule must be applied with caution, when considering the conduct of the defense, this was emphasized with reference to the cases of R v Birks and R v Manunta.
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
Legal codes in the judicial system is the key distinction between the civil law and common law tradition. It is the supreme source of justice in a society and is meant to provide the common good for a society. Whether or not a country is governed by a civil or common law code greatly influences the role of the judiciary system. Including the presence and role of judicial review. Given these points, civil law clashes with the theory of individualism, therefore this tradition could not work in the American system. Civil law is markedly inflexible because it is difficult to update common law to change with the times. Until relevant criminal charges are laid out or relevant civil action is initiated, there is not an opportunity for these laws and precedents to be changed.
With the prominence of the tort reform debate on state legislative floors across the country, many states have introduced and even passed bills that address reform issues within their respective states. Many reform proponents feel that changes in the civil justice system should be left to the states. The alternative, congressional regulation, presents more old big government solutions and the problems that accompany it.
In the year 1970, the Canadian government founded the Law Reform Commission of Canada to ensure the progression of law making and to make recommendations for legal changes . The Law Reform Commission of Canada is constantly importing and suggesting proposals towards the criminal code of Canada. During the year of 1985, t...
Substantive law and Procedural law work together to make sure all procedures are carried out to bring a case to trial. In this essay I will prove the differences between Substantive law and Procedural law.
and remedies applied by courts of law in civil proceedings giving the plaintiff or claimant relief
This essay will examine the main cause of the demise of the derivative claim which is the possibility of pursuing a corporate relief and even costs via an unfair prejudice petition, a relief and order that was initially only available via derivative action. Further this essay will discuss as to how the boundaries between the statutory derivative action and the unfair prejudice should be drawn and what restrictions should be added to the unfair prejudice remedy under section 994 of the Companies Act 2006 so that the significance of the statutory derivative action can be reinstated.
The fundamental purpose of the requirement that an originating process (“OP”) be served by personal service, prior to the commencement of proceedings, is to promote procedural fairness and natural justice . This essay will examine personal service in the context of civil procedure and the governing procedural rules pertaining to the personal service of an OP in New South Wales , as outlined in the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). To avoid doubt, unless the context indicates otherwise, “defendant” and “claim” shall include the singular and the plural as an OP may comprise of multiple defendants and/or multiple claims.
The UK courts obtain the power to decide whether the governmental authority has acted ‘Ultra Vires’. This ensures they do not act outside limits of their legal power, this includes both formal and substantive grounds. Both proportionality and natural justice are crucial components for judicial review of a case and therefore, formal and substantive elements are required to set out laws. There seems to be no compelling reason that this may not also be the most salient solution for the rule of law, however in my opinion, good procedures are not as rewarding as the laws content when it concerns the publics lives and
Whenever a restriction is imposed on the Fundamental Rights of a person, it has to go through the test of reasonability. For this purpose, the Indian Courts have always used the Doctrine of Proportionality.
Analyze the above statement by explaining the facts of the case and by discussing the three significant legal principles which were upheld in this case.