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Flashcards in Forensics MT 1 Deck (47)
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1

Level/Structure/Courts of Law

Structure:
- District courts (court of first instance)
- County court (court of first instance or appeal)
- High courts of appeal
- Supreme court
Jurisdiction (subject) and competence (geographical area)
Protect, punish, educate and control

2

Responsibilities of the Court

Jurisdiction (subject) and competence (geographical area)
- Protect the order of the state and society, citizens' rights and legal interests
- Punish those who committed a crime
- Educate to respect law by impose, executing and enforcing punishment
- Control legality of state administrative orders

3

Impartiality of Courts

§ Independence of judges: not influenced or ordered
§ Election of judges (Parliament, President): diploma in law, experience and practice,
clear past record)
§ Participation of the society in judgment (lay assessors)
§ Publicity
§ Appealable decisions

4

Structure of Public Prosecutor's Office

Structure:
§ Municipal prosecutor's office
§ County prosecutor's office
§ Appellate prosecutor's office
§ Chief prosecutor's office
§ Jurisdiction and competence = courts

5

Responsability of Public Prosecutor's Office

§ Control and 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 of penitentiary system
§ Order, supervise or carry out investigations

6

Participants in a civil suit

§ Court (judge/s)
§ (Public prosecutor)
§ Plaintiff: voluntary role
§ Defendant: forced role
§ Intercessor: legal interest, voluntary (e.g insurance company) or accepted role
§ Representative

7

Evidences of a civil suit

§ Witness testimony
§ Forensic expert opinion(s)
§ Physical evidences
§ Documents
§ Inspection
§ Judgement
§ Appeal
§ Final judgement
§ Extraordinary remedies (review, retrial)
§ Enforcement

8

Means of Evidences

§ Shall be the testimony of the witness, the expert opinion, physical evidence,
documents and the pleadings of the defendant
§ Evidence shall be traced, gathered, secured and used in compliance with the law.
§ In the course of criminal proceedings, all means of evidence and all evidentiary
procedures may be used without restriction. However, the use of certain means of
evidence may also be statutory

9

Who may not be heard as witnesses in a civil suit

§ Any person who cannot be expected to provide a correct testimony due to some
physical or mental disability, may not be summoned to testify
§ The witness, unless exempted from the obligation of confidentiality, shall not 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
underlying relationship

10

Who may refuse to testimony/testify as a witness in a civil suit

§ Close relative of the parties
§ Any person who would incriminate himself or his close relative referred to in in the
commission of crime
§ Confidentiality stemming from their profession

11

Participants in a criminal procedure

§ Court (judge/s)
§ Public prosecutor
§ Investigative authority (police, public prosecutor, customs and finance guard)
§ Accused person (defendant)
§ Victim (injured party)
§ Private accuser (e.g. libel, invasion of privacy)
§ Substitute private accuser (civil suitor)
§ Their representatives

12

Evidences in a criminal procedure

§ Physical evidence
§ Experts opinion
§ Witness testimony
§ Documents
§ Inspection

13

Who may not be heard as witness in case of a criminal procedure

§ Clergymen and churchmen on issues subject to the obligation of professional secrecy,
§ The counsels for the defense on issues which have come to their cognizance or 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 or
mental condition

14

Who may refuse to witness in a criminal procedure

§ Relative of the defendant
§ Those who would incriminate themselves or their relatives on the related issues
§ Bound by secrecy owing to their profession or public office

15

Common mistakes when giving forensic expert opinion

§ Not up to date methods
§ Definite without reason
§ Giving opinion in questions beyond his competence
§ True statement but not justified/explained enough
§ Not taking into account the specialties of the case, stereotyped
§ Not clear enough to everybody (e.g. professional terms without explanation)
§ Not keeping the deadline (may ask for postpone)

16

Breach of contract/kind of breach

Any act or behavior of the obligor (seller) or obligee (buyer) that prevents or encumbers the
realization of the aim of contract or leads to any defect of the performance
§ Obligor's delay
§ Obligee's delay (late acceptance)
§ Impossibility of performance
§ Withholding performance (refuse to perform)
§ Defective performance (lack of conformity)

17

Definition of defective performance

The goods (e.g. animal) or service does not comply with the legal characteristics or with the
characteristics stipulated in the contract and the defect existed at the time of delivery

18

What does the buyer have to prove in case of defective performance

1. The goods or service does not comply with the legal characteristics or with the
characteristics stipulated in the contract
2. Defect existed at the time of delivery
3. Proper use

19

Legal characteristic

§ Legislation
§ Defect, deficiency, characteristic:
§ Decrease significantly or prevent proper use or
§ Decrease significantly economic or market value

20

Burden of proof, buyer

Buyer´s obligation to prove:
§ Defect
§ Significance
§ Origin

21

Definition of warranty

Objective consequence of the defective performance (without justification): on the basis of a contract in which the parties owe mutual services to one 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 behavior was
§ Intentional, negligent or he/she acted in good faith

22

Rights of warranty in case of defective performance

§ Repair (treatment) or replacement
§ Reduction of price
§ Withdraw from the contract (termination of contract)
§ May switch to another type of warranty
§ If damage ➡ compensation

23

Exclusion of liability

Exclusion of liability
§ May be excluded with mutual agreement
§ The exclusion is not valid:
- If caused intentionally, by serious negligence, or by crime
- The goods (animal) damages life, physical integrity, health
- There is no proper compensation

24

When is warranty not valid

§ The obligee's right to warranty shall lapse after one year from the delivery date
§ Contract involves consumer and business party ➡ buyer´s right to warranty lapses
after two years from delivery date
§ If things under contract is 2nd hand, parties may agree to shorter limitation period (not
less than one year)
§ Time limit of warranty for animals: one year
§ Obligee (buyer) knew or
§ Should have known the defect

25

Definition of general/subjective liability

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

26

Define liability of damages/Damages caused by general/subjective liability

Material damage:
§ Real loss (depreciation in value; e.g. price of the animal)
§ Unrealized profit (pecuniary advantage loss)
§ Justified expenses (costs necessary for the mitigation or elimination of the financial
losses; e.g. veterinary treatment, transport)
§ Not emotional damage
Immaterial damage: violation of someone's personal rights (e.g. injury of reputation)

27

Burden of proof (general liability) by the injured party

§ Damage
§ Connection between the illegal action and the damage

28

Burden of proof by the person causing the damage (tortfeasor)

§ His action was not illegal, or
§ His action was not negligent

29

Define strict/objective liability

§ 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
§ No compensation shall be provided for any damage insofar as it originates from an
activity attributable to the aggrieved party

30

How can laibility be excluded in case of strict/objective liability

Unavoidable external reason:
§ Vis major
§ Injured party's unavoidable action
§ Third person's unavoidable action
§ Unavoidable effect of other external event (e.g. animal)
Time limit: 3 years