Hasil untuk "Civil law"

Nihan Koyuncu Aktaş

Arsa payı karşılığı inşaat sözleşmelerinin birçok görünümü mevcuttur. Arsa paylarının henüz başlangıçta yükleniciye devredilmesini öngören sözleşmelerde arsa sahibi yönünden bir teminat ihtiyacı belirir. Bu teminat ihtiyacını karşılamak amacı ile arsa sahibi lehine ipotek kurulması söz konusu olabilir. Çalışmamızda arsa payı karşılığı inşaat sözleşmesinde arsa sahibi lehine kurulan ve uygulamada inşaat teminat ipoteği olarak adlandırılan bu ipoteğin hukuki niteliği irdelenmektedir. Bu amaçla öncelikle asıl borç ilişkisi olan ve alacağı doğuran arsa payı karşılığı inşaat sözleşmeleri ele alınmaktadır. İpoteğin hukuki niteliği belirlenirken arsa sahibinin bu sözleşmeden doğan ve teminat altına almayı amaçladığı alacağından yola çıkılmaktadır. Bu kapsamda yüklenicinin inşaat yapma şeklinde tezahür eden yapma borcuna karşılık belirsiz bir alacağı teminat altına alması nedeni ile üst sınır ipoteği kurulmaktadır. Ancak alacağın miktarının belirli olduğu hallerde anapara ipoteğinin kurulmasının önünde engel yoktur. İpoteğin hukuki niteliğine bağlı olarak değişen sonuçlar ayrıca ele alınmaktadır.

Pablo Manterola Domínguez

Este trabajo analiza la acción de disolución judicial, prevista para la sociedad anónima cerrada chilena, desde un punto de vista procesal. Aunque la Ley sobre Sociedades Anónimas de 1981 ofrece algunas indicaciones, varios puntos relativos al ejercicio de este remedio no son regulados o lo son de forma indirecta, como el alcance de la discrecionalidad judicial o la arbitrabilidad del conflicto. Además de esos puntos, se estudia el objeto del proceso, que determina el carácter constitutivo de la sentencia estimatoria, a quiénes corresponde la legitimación activa y pasiva, y cómo se relacionan cumplimiento de la sentencia y liquidación societaria.

Alireza Ebrahimi, Reza Askari

The issue of land occupation and water utilization is a vital matter that requires the establishment of specific regulations. Furthermore, according to Article 45 of the Iranian Constitution and Articles 1 and 2 of the Law on the Fair Distribution of Water, waters are considered public common property, the possession and utilization of which have been entrusted to the Islamic State. To preserve, protect, and ensure the proper utilization of water resources, the preservation of the riparian zone is essential. Following this approach, the Iranian legislature in the Law on the Fair Distribution of Water has designated them as public common property and made the utilization of these waters contingent upon obtaining a permit from the Ministry of Energy. On the other hand, the utilization of waters on private property may conflict with the State’s authority in the utilization of waters. Through the analysis of the descriptions provided in this regard, it was concluded that the lands constructed within the riparian zone of rivers are under the jurisdiction of the State, and their possession is solely considered a right of the State, based on the purport of the Law on the Fair Distribution of Water and its compatibility with the relevant articles of the Civil Code. Similarly, any form of utilization, whether through construction or water extraction, within the riparian zone must be authorized by the Ministry of Energy, even if the land belongs to the municipality or other public legal entities. Furthermore, even in the event that the encroachment on the riparian zone has been carried out with the permission of the relevant organization, the authority to determine its continuation or demolition rests with the Ministry of Energy, in which case the compensation for the owner and the builder will be provided according to Articles 43 and 44 of the same law.

Ugo Ruffolo

Il fenomeno “piattaforme” unisce il “nuovo” all’“antico”, imponendo al giurista riflessioni riguardanti tanto il pianeta dei media tradizionali quanto le dirompenti innovazioni introdotte dal digitale e dall’impiego sempre più diffuso dell’A.I. generativa. Il contributo si propone di censire i problemi di tutela della libertà di parola posti dal nuovo modo interattivo di comunicare, indagando, in particolare, l’estensione dei poteri di content moderation accordati alle piattaforme. Quali ragionevoli limiti (contrattuali, autodisciplinari, da coregolazione) alla libertà di manifestazione del pensiero dell’utente? Quando la comunicazione “non cartacea” è equiparabile alla “stampa” ex art. 21 Cost.? E quali i possibili rimedi contro fake news e comunicazioni improprie, nel rispetto della libertà di espressione? Analoghe questioni sono affrontate, poi, anche con riferimento al fenomeno ChatGPT, in relazione al quale ci si domanda se e quando le comunicazioni robotiche possano essere ricondotte, sotto il profilo delle tutele ad esse accordabili, a “manifestazioni del pensiero”, ovvero a erogazioni di servizio informativo (ovvero a comunicazioni interpersonali ex art. 15 Cost.). The phenomenon of “platforms” unites the “new” with the “old”, imposing on the jurist reflections concerning both the planet of traditional media and the disruptive innovations introduced by digital and the increasingly widespread use of generative A.I. The contribution proposes to survey the problems of protecting freedom of speech posed by the new interactive way of communicating, investigating, in particular, the extension of the powers of content moderation granted to platforms. What are reasonable limits (contractual, self-regulatory, co-regulatory) to the user's freedom of manifestation of thought? When can “non-print” communication be equated with the “press” under Article 21 of the Italian Constitution? And what are the possible remedies against fake news and improper communications, while respecting freedom of expression? Similar issues are also addressed, then, with reference to the ChatGPT phenomenon, in relation to which the question arises as to whether and when robotic communications can be traced, from the standpoint of the protections accorded to them, to “manifestations of thought” or to information service disbursements (or to interpersonal communications under Article 15 of the Italian Constitution).

Formakidov Dmitry A.

The paper is devoted to theoretical and practical problems of determining the legal status of apartments according to the current Russian legislation. The relevance of the study is bound to the introduction of the draft legislation on the regulation of relations, construction and use of apartments in multiuse buildings at the end of April 2021 by the State Duma of the Russian Federation. The paper provides a comprehensive analysis of the views in the legal literature regarding the legal structure of apartments. A comparative legal analysis of apartments and residential premises was carried out taking into account the characteristics and types of the latter. It was concluded that apartments are classified as nonresidential premises. The proposed legislative regulation of relations arising in the process of erection and subsequent operation of multiuse buildings and premises located in such buildings used for the accommodation of citizens is analyzed. Conclusions were drawn on the imperfection of the existing legal regulation and the disadvantages of the proposed draft legislation.

A. A. Sapunkov, N. A. Sapunkov

The subject. The law of emphyteusis was studied in the Russian Empire in the middle of 19th – beginning of 20th century due to practical significance. The interest in this subject began to revive at the beginning of the 21st century, the first few publications appeared, but they were mostly replicas of Imperial period studies. The law of emphyteusis in Russia before the middle of the 19th century is not researched sufficiently. The purpose of the study is to confirm or disprove hypothesis that the law of emphyteusis was initially implemented in the system of Russian law as a legislative institution, but since the middle of the 19th century it has acquired the status of a local legal custom. The Russian state, having preserved the former system of civil law (the Lithuanian Statute) in the Western lands annexed from Lithuania and Poland, created the basis for the formation of a different system of legal awareness among a part of the population, thereby consolidating the dichotomy of the Empire and the Western provinces. Since the issue of land ownership is a key issue for feudal society, the law of emphyteusis is the most striking example of the split in the unity of the legal system of the Russian state. The methodology. The study is based on a combination of formal-legal and historical-legal methods: the methods of historicism, synchronous and diachronic comparison allow us to get an idea of the socio-political conditions in which the law of emphyteusis was formed and functioned. The main results, scope of application. The institute of emphyteusis (Latin – сensus, German – zins, Polish – czynsz) was formed on the basis of the reception of Roman and Byzantine law in the feudal law of a number of European States. Emphyteusis comes to the PolishLithuanian lands as an element of German law. The article describes the socio-political processes in the territories annexed by Russia from the Polish-Lithuanian Commonwealth, where the right of emphyteusis was preserved in the middle of 17th - first half of the 19th century as a local civil law under the Lithuanian Statute system. After the abolition of the Statute of Lithuania (1840) an emphyteusis preserved as a regional legal custom. The analysis of legislation and law enforcement practice on the issue of emphyteusis on the borderlands of the Russian state is carried out. The ineffectiveness of the state policy on the elimination of emphyteusis is noted. Conclusions. The revealed specifics of the development of emphyteusis in the Russian Empire are extremely poorly studied, although they indicate far-reaching consequences in the system of forming the legal consciousness of Russian, Ukrainian, Belarusian, Jewish (Ashkenazi) and other peoples.

Ye. Buribayev, Zh. Khamzina

The main role of labor law is that it harmonizes the interests of society, the state, as well as workers and employers in the field of employment. One of the mechanisms for ensuring such a reconciliation of interests is an effective judicial system, which must be “tuned” to the special subject composition of labor relations; should differentiate the principles of civil and labor contracts; to provide a special approach to the settlement of labor disputes, taking into account the vital necessity for citizens to par-ticipate in hired labor, to receive remuneration; take into account the risk for citizens of loss of life and health in labor relations if the employer does not comply with labor protection measures; take into ac-count the impossibility of restoring the original position of the parties (bring the parties to their original position) when terminating the employment contract. The study is aimed at developing the theoretical and methodological foundations of the judicial form for resolving labor disputes. The scientific and prac-tical significance of the work lies in the substantiation of proposals for further improving the procedures for resolving labor disputes. Methodologically, the study was carried out using traditional methods in-herent in legal science: formal legal (dogmatic), sociological and legal, the method of legal modeling, as well as the critical legal method of legal knowledge. The main results are aimed at improving the current practice of implementing the judicial form of protecting social and labor human rights.

P. E. Spiridonov

The subject of study in this paper are administrative-delict legal relations and the terms associated with this kind of relations. The purpose of the study is to analyze the nature of offences and administrative delicts. It is stated that the use of the term “delictum” it's been a certain evolution from private legal term in the sense of “delicta private” to the term, which can be used both in the sense of “delicta private” and value of “delicta publica”. The conclusion is that the term “delict” may be used in public relations and administrative legal use of the term “administrative delict”. Expanding the range of investigated administrative and delict relations, entails a change and the essential characteristics of administrative offenses, and also creates preconditions for formation of administrative-tort system of prevention of offenses, including not only administrative offences but also other offences that are not related to crimes and civil offenses. In this case, the responsibility should be named administrative and delict, which, in essence, will include a modern administrative and administrative-disciplinary liability. Depending on the nature of the administrative delict may be subdivided into administrative offense and administrative misdemeanor. The essential characteristics of an administrative offense should be upheld, and administrative misdemeanor must be attributed those acts which are now administrative and disciplinary misconduct. With this division of administrative delicts it is possible to realize a codification of administrative and delict legislation, i.e. the creation of Administrative-delict code of the Russian Federation. The work also made the assumption that procedural violations are treated as administrative delict. An attempt is made to distinguish between material legal relations in administrative law and administrative procedural legal relations. Concluded that you cannot mix administrative-tort legal relations, as a kind of material with tort and procedural legal relations. In turn, tort and procedural legal relations are an integral part of administrative and legal proceedings, and administrative delict production is an integral part of the administrative process. The methodological basis of the article is dialectical, formal logical methods, formal-legal method and method of interpretation of law.

Walter Reifarth Muñoz

Este artículo aborda la cuestión prejudicial como instrumento procesal para reforzar el diálogo entre el Tribunal de Justicia de la Unión Europea y los órganos jurisdiccionales nacionales. En concreto, se parte de la noción de diálogo judicial y de los mecanismos reconocidos en el Derecho primario de la Unión, de entre los cuales la cuestión prejudicial ocupa una posición privilegiada en la actuación eficaz y uniforme de las disposiciones de la Carta de Derechos Fundamentales de la Unión Europea.

Dave Holness

Access to justice for all in South Africa, as most clearly set out in sections 34 and 35 of the Constitution of the Republic of South Africa, 1996, is necessary to realise various other fundamental rights and to improve living standards. There are insufficient free legal services available to the indigent in South Africa, especially in civil matters, thereby often making meaningful access to justice unattainable. This study considers possible approaches, challenges and opportunities for law graduate community service in South Africa (hereinafter "community service") to expand the ambit and impact of free legal services to the indigent. This would promote the constitutional imperative of access to justice, focussing on civil matters. This study concentrates on the access to justice potential of and challenges to such community service. Such challenges will be shown to include its proper utilisation and control through the adequate supervision of graduates. This paper argues that graduate community service has the capacity to promote better access to justice and hence that steps should be taken for its introduction in some form. Community service and means for law graduates to perform this as a necessary part of vocational training before entering the legal profession are provided for in section 29 of the Legal Practice Act 28 of 2014 (LPA). But despite parts of the Act being operative, community service is neither in operation nor do regulations yet exist for its implementation. The specific vocational training element(s) for law graduates is worthy of separate study and is not the focus of this paper. Such a separate study would include opportunity creation - such as gaining the necessary practical experience and the establishment of employment opportunities - and training challenges for graduates during community service. In the pre-LPA era it would have been necessary to focus more on whether community service for law graduates should be included in legislation or not as part of graduates' vocational training and as a key component of free legal service delivery. Some such arguments are alluded to as community service has yet to be implemented and its implementation is not a fait accompli. But because it is now included in the LPA as a legal aid service delivery possibility, this study instead focusses on the need for the effective and appropriate implementation and operation of community service to turn the requirements and encouraging promise of the LPA on community service into reality. The paper explores issues such as the necessary and appropriate supervision and placement of law graduates completing community service. The research very briefly touches on whether community service would best be compulsory for graduates as part of their vocational training or merely one possible route towards admission to the legal profession. Lessons are sought for legal community service in South Africa from existing medical post-study community service schemes as to the role which such schemes have played in expanded service provision and impediments experienced in reaching such goals. These lessons are applied to proposals for the implementation and operation of law graduate community service. This study considers how community service could and should be a key component of a multi-faceted and co-ordinated approach to expand and improve free legal services for the indigent in civil matters in South Africa with its gross inequality, unemployment and poverty. For this goal to be realised, there must be mechanisms for its effective roll-out and operation.

Celine Awuor, Emma Wanyonyi

Background and challenges to implementation Kenya inaugurated a new constitution in 2010 that created a devolved system of government comprising of a National Government and 47 County Governments. This altered the governance structure in all sectors including health, consequently affecting implementation of Tobacco Control (TC). Even though Kenya has Tobacco Control Act, 2007, certain provisions of the Act have to be implemented at the county level. However, the counties had limited awareness and capacity to perform the new roles in TC implementation. Furthermore, Tobacco Industry targeted counties as the next frontier for killing TC. The challenges necessitated technical support and capacity in TC for the counties to develop local legislation. Intervention or response We carried out desk assessment on TC legislation framework to identify gaps to be addressed. Two research studies were done in selected counties to inform advocacy activities. A model county TC Bill benchmarked with the Framework Convention on Tobacco Control (FCTC) was developed for the counties to adapt to their local situations. Key stakeholders were identified- county health executives, assembly members and Civil Society Organisations (CSOs) who were trained on TC legislation development and advocacy. Results and lessons learnt The model law presented to counties how effective TC legislation should be structured. Different approaches worked in different counties; either presenting the law to the County Assembly as a private member's bill or using county health executives to front the bill. Through the project, awareness on TC at the counties increased, capacities enhanced and interest on the topic generated that made the process demand-driven by county stakeholders. Conclusions and key recommendations TC legislation established at the county level, local capacities on TC built and TC implementation devolved to the local level. Such an approach can be applied in other areas of public health, where local governments are given power to develop and enforce laws suiting their situations.

Aurelian Virgil BALUTA

The life of companies, including the aerospace companies, depends on the business cycle. The paper presents the trends of law in ascending and descending period of the business cycle. A point of the paper is the separation of military and civil law in aerospace, public and private law, national and corporate security systems. Also the laws to be apply in relation with public authorities, private organizations, citizens are approched. In the paper are included some keys for interpretation such as the hierarchy of social values. In modern times, the humans life, rights and property must be the main protected values. The paper shows the methods to be accepted for the analyse/analysis of law in aerospace field: logical analysis, hystorical method, comparative method, social research, experimental method. In the aerospace field each of them has some particularities. The classification of laws depending of economic impact in the aerospace field is an other section. There are presented implications on cost, income, receipts, payments, duration of the activities, other restrictions.

V. V. Kozhevnikov, Yu. B. Lavrov

Analyzing the approaches developed in jurisprudence and estimating national legislation that contains norms of private law, the authors conclude that the formation of civil society is closely connected with and depends on private law.

Thomas Y Man

Forensic examination plays an important role in China's judicial system, especially in the fact-finding process of both civil and criminal proceedings. Since 2005, this system has experienced gradual, yet significant changes. This paper seeks to examine the major themes of these changes in the context of the continued conceptual reformulation and structural realignment of civil and criminal procedures and the ongoing effort to codify evidence law with transforming impact on China's judicial system and culture. Emphasis is given to the transition of the forensic examination system from an officially (both administrative and judicial) administered fact-finding mechanism with powerful impact on the courts' truth-seeking activities to, at least partially, an expert witness system with significant participation and control by the parties' to judicial proceedings. A convergence of influence from both the continental inquisitorial tradition and the common law adversarial structure appears to have strongly informed the process and direction of the Chinese forensic examination reform. This paper attempts to explain the reasons for this convergence of influence, identify the trend and direction of this development, and provide observations and suggestions for further improvement of the forensic examination system in several key aspects with particular reference to the legal principles and judicial practices under the Federal Rules of Evidence of the United States.

César Delgado Barreto

International Private Law has gone through several changes and modifications, in step with the globalization phenomenon, for whichthe  relations  between  citizens of  different countries have become more frequent and complex. In that regard, it is necessary to ask how International Private Law should react tobe in accordance with the new scenarios. In this article, the author examines the general and patrimonial aspects of International Private Law that he considers must be redefined, comparing the current dispositions of the Peruvian Civil Code with international regulations and national reform projects, and introducing a modification proposal for each topic.

Carlos, Bernardo, Henrique

O desenvolvimento da atividade política do Judiciário ao longo do século XX despertou posicionamentos críticos na teoria constitucional, podendo se destacar o Constitucionalismo Popular. Entre seus apontamentos, o Legislativo possuiria legitimidade para atuar com base em uma Constituição popular diariamente construída. Perante algumas imperfeições deixadas por esta vertente, utiliza-se a obra de John Rawls para indicar (I) que questões políticas são enfrentadas pelas instituições democráticas que compõem a estrutura básica de uma sociedade bem-ordenada; e (II) o papel desta Constituição popular pode ser exercido por elementos da teoria rawlsiana, quando os princípios de justiça identificam um parâmetro legitimador das deliberações democráticas e a razão pública permite que a atuação destas instituições seja acompanhada continuamente pelos cidadãos em nome das gerações futuras.

Jorge Correcher Mira

RESUMEN La realidad social internacional presenta un nuevo paradigma que debe ser asumido por el Derecho penal. El contexto social internacional, marcado por la globalización a nivel mundial y el proceso de integración europea en el ámbito comunitario, supone una modificación de las líneas clásicas de recepción de las normas penales, demandando un tratamiento supraestatal del sistema penal. En este trabajo, se analiza desde una perspectiva crítica las propuestas de internacionalización del Derecho penal, en la medida que éstas no han seguido nociones como el pluralismo jurídico y el carácter garantista inherente al Derecho penal.   ABSTRACT The social international reality presents a new paradigm that must be taken up office for the Criminal law. The social international context, marked by the globalization worldwide and the process of European integration in the European area, supposes a modification of the classic lines of receipt of the Criminal law, demanding a supranational treatment of the Criminal System. In this work, the offers of internationalize the Criminal Law will be analyzed from a critical point of view, cause these have not followed notions as the juridical pluralism and the protection of civil liberties inherent in the Criminal Law.  

Amer Ashor Abdulla

Juan José Martínez

¿Cómo lograr que el administrador de una empresa no«invierta» demasiado en su comodidad, cuando va de viaje, dejando de lado todos los interéses de la empresa y de los accionisas? ¿Qué pueden hacer los accionistas minoritarios para evitar que los acconistas mayoritarios quienes tienen el control de la empresa - desvíen los ingresos de la empresa a gastos innecesarios en el negocio? Estos son problemas de agencia, para los que el Derecho busca una solución. El autor sin embargo señala que ésta aún no ha sido alcanzada.