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    Novo Cpc Pdf 2016

    29 abr. PDF | ISSN ISBN "MEDIATION IN THE " Mediação no Novo CPC - estudos de caso e direito comparado" ISSN an Aid to Teaching Legal English - Lecturer's Conference UNISUL PDF | On Apr 29, , Elisa Correa and others published ELISA MEDIACAO NO NOVO CPC ESTUDOS DE CASO E DIREITO COMPARADO ancho. Language as an Aid to Teaching Legal English - Lecturer's Conference UNISUL May 7, PDF | ISSN ABSTRACT: the present essay intends to analyze Conflict Mediação no Novo CPC - estudos de caso e direito comparado an Aid to Teaching Legal English - Lecturer's Conference UNISUL

    Ordered for retrial Disclaimer: The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Onyiego, Chief Magistrate and Hon. In that case, he is charged together with two other persons of obtaining money by false pretences contrary to section of the Penal Code. All the three Accused Persons pleaded not guilty to the charge and the trial commenced. The Prosecution called six 6 witnesses and then closed its case. The parties made their submissions on no case to answer. Consequently, the 1st and 2nd Accused Persons gave their sworn testimonies and closed their respective cases. Like his Co-Accused, he opted to give sworn testimony. Case No. At this point, the Prosecution made an application for the Applicant to be stood down as a witness so that he the Applicant could be given an order by the Court and time to produce the LPOs. The main objection was that ordering the Applicantto produce the LPOs would be self-incriminating and would, in essence, be an order that the Applicant perform a duty to assist the Prosecution to accomplish its task of successfully convicting him. Lastly, the Applicant complained that the application by the State was a stunt aimed at delaying the case. In reaching the conclusion that it was proper for the Applicant to be required to produce the LPOs, the Learned Trial Magistrate reasoned thus: Accused 3 [Applicant] like his colleagues had consistently stated that they had genuine local download orders from Naivas and Tuskys supermarkets which they used to source for financing and partnership from the complainant hence this case. I do not see anything self-incriminating.

    Extracts in Figure 1—figure supplement 2. The constitutive centromere-associated network CCAN binds to centromeric chromatin to form the inner kinetochore and serve as the scaffold for outer kinetochore assembly, which mediates microtubule attachment Foltz et al.

    Brazil’s New Civil Procedure Code

    CENP-T, a histone-fold domain containing protein, recruits Ndc80c via the same interaction surface on the Ndc80 complex that binds Mis12c Nishino et al. Substantial progress in understanding kinetochore assembly has been made using reconstitution systems in vitro. For example, pre-formed nucleosomal arrays incubated in Xenopus egg extracts assemble microtubule-binding elements that allowed the identification of events required to initiate kinetochore assembly Guse et al. To identify additional events that regulate kinetochore assembly, we set out to develop a reconstitution system that combines the strengths of these previously developed methods with the added ability to genetically manipulate the system and maintain post-translational modifications.

    The kinetochore subcomplexes and functions are largely conserved, including the specialized chromatin structure containing CENP-ACse4 that serves as the platform for kinetochore assembly.

    Additionally, dual pathways for Ndc80 recruitment are used in yeast, although the CENP-T ortholog, Cnn1, is not essential for viability Schleiffer et al. Here, we develop a cell-free method to assemble complete kinetochores de novo using centromeric DNA and yeast extracts. Conserved mitotic phosphorylation events of the Mis12 complex enhance kinetochore assembly, revealing that the assay is sensitive to key post-translational modifications.

    Furthermore, this method generates kinetochores that exhibit microtubule-binding activity and employ both Ndc80 recruitment pathways. We applied this assay to identify the requirements for CENP-TCnn1 assembly and find that it requires all other inner kinetochore subcomplexes, suggesting it does not have independent DNA-binding activity. Furthermore, we discovered that the CENP-TCnn1 pathway is required for Ndc80 recruitment and cell viability when the Mis12 pathway is impaired by defects in conserved mitotic phosphoregulation Akiyoshi et al.

    Taken together, we have established a kinetochore assembly assay that identifies a critical function for the yeast CENP-TCnn1 pathway and that provides a powerful method to identify other key regulatory events required for kinetochore assembly and function in the future. Results Development of a method to assemble kinetochores de novo Because we had previously identified conditions to purify functional kinetochores from yeast cells Akiyoshi et al.

    We optimized the extract conditions for assembly in vitro by altering the lysis buffer and method, most notably switching from potassium chloride to potassium glutamate, a salt utilized in other reconstitution assays Seki and Diffley, ; Heller et al.

    Influências do Novo CPC no processo penal

    For that purpose, the NCPC determines — with few exceptions — that in civil lawsuits the defendant will be summoned to appear before a conciliation or mediation hearing, which will not be chaired by the judge, with the aim of facilitating a negotiation between the parties. This will depend on the progress of negotiations between the relevant parties. During this period, the defendant does not have to come up with his defense.

    This becomes all the more evident in family lawsuits, in which the NCPC determines that the defendant need not even receive copies of the initial pleadings [8] — although the defendant may have access to them at any time — precisely to serve the purpose of preventing the intensification of conflicts and facilitating the establishment of agreements.

    Repetitive Lawsuit Management. As previously mentioned, one of the most significant problems in the Brazilian Judiciary is the excessive number of lawsuits.

    The numbers involved are intolerable: there are nearly 50, lawsuits for every , inhabitants. Such lawsuits involve various categories: consumer law, tax law, pensions, etc. In this regard, the NCPC has laid down two crucial measures: a the possibility of suspending lawsuits under way whenever there is the intention of creating legal precedents on the legal issues that will be applied to repetitive cases — thereby avoiding the unnecessary expenditure of resources and work; [11] and b the creation of a model for binding precedents.

    In fact, the inclusion of a system of precedents will enable the Brazilian judicial procedure to accomplish greater predictability and equality by making use of the same decision in dealing with all parties who may be in similar legal situations with the one that gave rise to the precedent.

    This may well be the most important change in the NCPC, and will require much effort and adaptation of legal professionals until it becomes truly effective from a practical point of view. While there may be room to believe that Avory J.

    There are at least three grounds for believing so. First, the decisional law clearly distinguishes situations when a Trial Court calls a witness pursuant to the mandatory part of section of the CPC which has not counterpart in English law and when a witness is called pursuant to the discretionary part of it.

    The position unmistakably emerging from these cases is that when a Trial Court is exercising its discretion under the first part of section , it is bound by the ex improviso Rule consolidated by Avory J.

    This limitation applies with even greater force when the discretion is, as here, applied at the instance of the Prosecution.

    Second, this rule of relatively ancient vintage has now been adopted and codified by various recent international instruments and decisions by various international Tribunals — and, in particular those dealing with international criminal law.

    SCSLT , defined what rebuttal evidence and adumbrated the contours and conditions upon which such rebuttal evidence can be admitted after the Prosecution has closed its case.

    A few other cases from the international criminal tribunals have applied this rule as well. See, for example, P. Suffice to say that the ex improviso rule appears to have now risen to a generally recognized rule of international law and practice and represents best practice in international law.

    The ex improviso rule is also the governing rule in many countries such as Canada see, for example, R. Finally, I am of the view that the fair rights provisions enshrined in the Constitution of Kenya, seen in context lead to the unmistakable conclusion that the discretionary power donated by section of the CPC to the Trial Court to call or permit the calling of Prosecution witnesses must be constrained and not expanded to the bare needs of justice in each particular case.

    A proper reading of the section of the CPC would, therefore, be one that restricts it reach. With this in mind, I therefore adopt the ex improviso rule announced by various international tribunals as the one most in consonance with the scheme of rights enumerated in Article 50 of the Constitution.

    Consequently, drawing from international best practices and our existing decisional law as analysed above, I am of the view that the Prosecution can only call rebuttal witnesses where the following conditions are satisfied: i. Such evidence must have arisen ex improviso to the extent that no human ingenuity or reasonable diligence could reasonably have anticipated, or foreseen the possibility of its being adduced by the Defence; ii. The evidence must have probative value in the determination of the issue or issues under consideration, and in particular, in the process of assessing the innocence or culpability of the Accused; iii.

    It must relate to a significant issue arising from the Defence case for the first time; iv. The Prosecution must demonstrate that: I.

    The calling of evidence in rebuttal is not a ploy to reopen its closed case with a view to curing certain perceived defects or shortcomings in the Prosecution case; II.

    That the rebuttal evidence is not being called on a collateral issue related to the credibility of the witness. That the granting of permission to adduce the evidence in rebuttal will not in any wayviolate the principles that underlie the doctrine of equality of arms between the Prosecution and the Defence, or otherwise do violence to the doctrine of fundamental fairness or unduly delay the proceedings thereby compromising the Constitutional obligation of ensuring a fair and expeditious trial without unduly jeopardizing the rights of the Accused Person.

    Applying these principles to the case at hand makes it plainly clear that the Prosecution was not entitled to call rebuttal witnesses in this case. In my view, the case turns on three issues. First, it is hardly possible to make the claim that no human ingenuity or reasonable diligence would have made the Prosecution anticipate that the Defence was going to adduce evidence that it had Local downloading Orders LPOs as a defence to the charges.

    It cannot, therefore, be said to be a matter ex improviso which no human ingenuity would have expected.

    Request Rejected

    Secondly, it is difficult to look at the circumstances and context here and not conclude that the Prosecution is not merely seeking to shore up its case. Third, in view of my finding above about the relative unfairness of the situation of the procedural posture that resulted in the decision to call rebuttal witnesses in the first place, it is not possible to be certain that the doctrine of fundamental fairness is not being violated.

    For these reasons, I would therefore conclude that this was not an appropriate case to allow the Prosecution to call rebuttal witnesses F. Kituku took over the matter from the Honourable J. Onyiego as he then was. His arguments before the Learned Honourable J. Kituku were, essentially, the arguments he has made here. The Prosecution objected to the application to have the trial start de novo. Kituku ruled that this was an appropriate case for the case to start afresh.

    He considered that the matter had dragged in the courts since — a period of more than 3 years — and that throughout the trial, the Accused Persons had been represented by Counsel. He therefore concluded that starting the trial de novo would constitute undue delay in finalizing the case and violate the provisions of Article 50 of the Constitution which, among other things, requires that a criminal trial must be started and concluded without undue delay.

    That case held that a succeeding magistrate needs to make a determination on whether to start a case afresh when demanded by the Accused Person in accordance with the particular circumstances of the case. I begin by pointing out that the Learned Magistrate was, clearly, well acquainted with the legal principles enunciated in our emerging jurisprudence on the question of when it will be appropriate for a succeeding magistrate to order trial to start afresh.

    Our case law has now made it clear that while section 3 makes it mandatory for the succeeding magistrate or judge to inform the Accused Person of his or her rights to request for a de novo trial, the succeeding magistrate or judge is not bound by the position taken by the Accused Person on whether to request for a de novo trial or not.

    The succeeding magistrate or judge must exercise his or her judicial mind to the issue and decide if, in the totality of circumstances, the case is an appropriate one for an order that it starts afresh.

    We can cull some of the considerations that a Court considering the issue should have in mind from our case law principally the Court of Appeal guidelines in the Ndegwa v R case as well as in Joseph Kamau Gichuki v R case as well as our emerging jurisprudence based on the Constitution of Kenya, as well as new legislative enactments governing criminal trials aimed at animating the Constitution.

    Some of these considerations that a Court considering the issue should have in mind include: a. Whether it is convenient to commence the trial de novo, that is, the difficulty in mounting a new trial; b. How far the trial had proceeded; c. The availability of witnesses who had already testified; d. Possible loss of memory by the witnesses given the passage of time; e.

    The time that has lapsed since the commencement of the trial taking into consideration the constitutional requirement that criminal trials should commence and be concluded without undue delay; f. The prejudice likely to be suffered by either the Prosecution or the Accused if a new trial is ordered; and g.

    The interests of the victims of the crime and witnesses — including the impact a new trial will have on them balanced against the benefits of a new trial. The Learned Trial Magistrate correctly considered that the case had come very far along — with the prosecution case closed and, at the time, only some rebuttal witnesses remaining to testify — and that the case had already been in the court system for more than three years.

    The magistrate was also correct in assessing any likely prejudice to be suffered by the Accused Persons through the lens of the fact that they had been represented by counsel throughout the trial. To this list of factors militating against the grant of an order that trial starts afresh, the Learned Trial Magistrate could have added an important factor that became clear during arguments before the High Court: the key Prosecution witness — the Complainant — has since relocated from Kenya and might no longer be available to testify.

    I therefore easily conclude that the decision by the Learned Trial Magistrate to adopt the proceedings of the previous presiding magistrate in the case was a proper one and requires no review.

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