1.49 It also recommends that any person with an interest in the estate may apply to the court to revoke the appointment of a judicial factor in the course of the court proceedings, but as in the case where such a person may apply to the courts if the court`s accountant does not agree with the proposed division. They, too, must exercise caution. Regulatory enforcement (WJC Rule of Law Index factor 6) measures the extent to which regulations are implemented and enforced fairly and effectively. Regulations, both legal and administrative, structure behaviour inside and outside government. A strong rule of law requires that these regulations and administrative regulations be effectively enforced (6.1) and applied and enforced without undue influence from public officials or private interests (6.2). In addition, a strong rule of law requires that administrative procedures be conducted in a timely manner and without undue delay (6.4), that administrative procedures respect due process (6.3) and that there be no expropriation of private property without adequate compensation (6.5). 1.56 With respect to the limitation period, it is recommended that the normal rules apply and that the obligations owed by the judicial factor to the estate not be time-barred during the court proceedings. There are various statutes governing the judicial process, some of which date back to the Judicial Factors Act of 1849. Since then, however, there have been many laws and subsequent changes. 1.8 Although there is such a need, the Justice Factory is now regarded by those who use it as a cumbersome procedure, sometimes at disproportionate cost and no longer fit for purpose. Since the judicial factors laws of the 19th century, there has been no new primary law dealing specifically with procedural details.
1.54 The Commission then makes a number of recommendations to clarify the position of the legal factor when a third party is involved. These include: responsibility should lie with the estate, not the judicial factor; the costs of the estate, if involved in litigation, are the responsibility of the estate and not the judicial factor; if the liability for judicial products is based on a breach of the judicial factor, the factor may be held personally liable; that the judicial factor replace the estate and those who have an interest in it for the purpose of doing business with third parties; and that those with an interest in the estate may raise questions about the actions of the judicial factor only by making representations to the accountant or requesting the replacement of the judicial factor. We support the view that these recommendations will clarify legislation on these issues. 1.48 With regard to other related matters, the Commission recommends that no changes be made to the current amortization procedure by the Court`s auditor or to the procedure whereby a judicial factor must be set aside by application to the Court in connection with a judicial facility. Very often, you will see that the judicial factor has been given the “usual powers” or the “general powers” in the court order. This is consistent with the Trusts (Scotland) Act 1921 www.legislation.gov.uk/ukpga/Geo5/11-12/58/contents, in which the definition of a “fiduciary” includes a judicial factor. The general powers of trustees are found in Part 4 of the above-mentioned Act. 1.35 They conclude that the judicial factor should be required to seek a solution and agreement between the parties through mediation or otherwise. However, they also recognize that such differences can be insurmountable. In this case, it is up to the judicial factor to develop a plan with a solution.
These recommendations (39 and 40) aim to ensure that a judicial body does not continue to exist indefinitely at the expense and therefore to the detriment of the administered estate. We support these recommendations. Performance is assessed against 44 indicators organized around 8 factors: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, law enforcement, civil justice and criminal justice. It should be noted that data on factor 9: informal justice are also collected, although they are not compared across countries and are therefore not included in the index values and rankings. 1.10 The Bill contains a comprehensive set of provisions governing all aspects of judicial factories, including appointment, powers, duties, remuneration, termination of employment, and the role of the Court`s accountant with respect to judicial factors. It also sweeps away outdated legislation of the 19th century. 1.7 The Office of Judicial Factor has a long history in Scots law and there is always a need for competent administrators to manage the property of those who cannot, should not or do not want to administer them properly themselves. 1.53. The recommendations in this chapter relating to the remuneration of judicial factors are briefly discussed in Part 4 of this document. 1.24 The Commission reviewed the criteria for appointment as a judicial element and concluded that the current post should be maintained – any natural person deemed suitable by the Court of First Instance may be appointed. A person may also be appointed if he or she is domiciled outside Scotland and, if such a person is appointed, is deemed to be subject to the jurisdiction of the Scottish courts. As the various pieces of legislation governing judicial procedure are now obsolete and no longer fit for purpose, the Scottish Government is in the process of reviewing them and is currently in the process of consultation.
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