Hasil untuk "Civil law"

Claudio Klaus Jr.

Contextualização: O estudo compara as leis de mineração de ouro em propriedade privada no Brasil e no Canadá. A relevância reside em como a história, a tradição jurídica (Civil Law vs. Common Law) e a estrutura de governança (centralizada vs. descentralizada) influenciam a regulação de minerais e os direitos indígenas em cada nação. Objetivos: O principal objetivo é comparar os marcos legais de mineração de ouro no Brasil e no Canadá em propriedade privada. A pesquisa foca nas diferenças cruciais no controle e propriedade dos recursos minerais e na proteção dos territórios indígenas. O estudo busca entender como esses sistemas equilibram os direitos de propriedade privada, a soberania indígena e o desenvolvimento sustentável.   Método: Foi utilizado o método de direito comparado para contrastar as estruturas jurídicas e os fatores históricos que moldaram as regulamentações de mineração. A análise comparou as leis, considerando variáveis como fatores econômicos e culturais, e as implicações do federalismo na divisão de jurisdição. Resultados: Ambos os países consideram os minerais como ativos públicos. O Brasil adota um sistema centralizado (Controle Federal) com proteções constitucionais estritas para terras indígenas, mas com fraca fiscalização. O Canadá possui um sistema descentralizado (Controle Provincial) que exige consulta legal às comunidades indígenas (dever de consulta) e oferece regulamentações regionalmente adaptadas. O sistema brasileiro é uniforme, mas o canadense é legalmente complexo e regionalizado.

Atika Rani Dyah Safitri, Antiko Wati, Warah Atikah

Abstract: A land title certificate is legal and concrete evidence of ownership and control of land. Its permanent nature and high value make land a stable and safe collateral for banks to disburse credit. However, this is an obstacle for land owners who do not yet have a certificate for the land they own and control, have complete proof of ownership of the land or rights, or do not even have proof of ownership. In the Pagar Alam District Court Decision Numbers: 6/Pdt.G.S/2021/PN Pga Using collateral in the form of land and buildings with proof of ownership SPPFBT No. 593/06/MS.Dp.U/2018. This obstacle makes it an option for that land that does not have a land title certificate as stated in Article 4 UUHT, to make an Ownership Statement of Land Parcel (SPPFBT) as an option for the community to use as collateral for bank credit. However, SPPFBT is a statement letter made unilaterally by the applicant that contains juridical data related to land control based on good faith, the authority is not as perfect as an authentic deed. Bearing in mind that, if there is bad credit in the credit agreement, the funds can be auctioned to fulfill the rights and obligations of the credit agreement between the debtor and creditor. In an implementation, banks must be careful in assessing the character, capabilities, capital, collateral, and business prospect funds of debtors, as well as formulating regulations regarding the use of SPPFBT as bank collateral for uncertified land to protect the rights and obligations of the Bank and credit applicants. Clearly, to provide legal certainty and protection. Keywords: SPPFBT, Uncertificated, Collateral, Bad Credit, KPKNL.   Abstrak: Sertifikat hak atas tanah merupakan bukti yang sah, konkret atas kepemilikan dan penguasaan atas tanah. Namun, merupakan kendala bagi pemilik tanah yang belum memiliki sertifikat atas tanah yang dimiliki dan dikuasainya, kepemilikan bukti tanah atau alas hak secara lengkap bahkan sama sekali tidak memiliki bukti kepemilikan. Dalam Putusan Pengadilan Negeri Pagar Alam Nomor: 6/Pdt.G.S/2021/PN Pga menggunakan agunan berupa tanah dan/atau bangunan dengan bukti kepemilikan SPPFBT Nomor: 593/06/MS.Dp.U/2018. Hal tersebut menjadikan sebuah opsi bahwasanya tanah yang tidak memiliki sertifikat sebagaimana disebutkan dalam Pasal 4 UUHT, dapat menjadikan Surat Pernyataan Penguasaan Fisik Bidang (SPPFBT) sebagai opsi bagi masyarakat sebagai agunan kredit bank. Namun, SPPFBT merupakan surat pernyataan yang dibuat sepihak oleh pemohon berisikan data yuridis terkait penguasaan tanah berdasarkan itikad baik, sehingga kekuatannya tidak sesempurna akta autentik. Mengingat bahwa, apabila terdapat kredit macet dalam perjanjian kredit, agunan tersebut dapat dilakukan lelang guna memenuhi hak dan kewajiban atas perjanjian kredit antara debitur dan kreditur. Sehingga, dalam pelaksanaannya bank haruslah seksama menilai terhadap watak, kemampuan, modal, agunan, dana prospek usaha dari debitur, pula perumusan pengaturan mengenai penggunaan SPPFBT sebagai agunan bank atas tanah yang belum bersertifikat untuk melindungi hak dan kewajiban Bank dan Pemohon kredit haruslah jelas, guna upaya memberikan kepastian dan perlindungan hukum. Kata Kunci: SPPFBT, Agunan, Tanah Tidak Bersertifikat, Kredit Macet, KPKNL.

Zlatan Bajramović, Ismet Latić

Since the dissolution of Social Federal Republic of Yugoslavia (SFRY) in the beginning of the 1990s Bosnia and Herzegovina become independent. Montenegro was, after SFRY, federal unit in two states: Federal Republic of Yugoslavia and Serbia and Montenegro and become independent in 2006. Bosnia and Herzegovina and Montenegro are evolved from accusations of aggression to good neighbouring and security cooperation. Since Montenegro is member of NATO and Bosnia and Herzegovina is still making an effort for the membership security cooperation is necessary. Research in this paper is about security cooperation in armed forces, police and other law enforcement agencies and civil protection since both countries become independent.

Taner Ercan

The concept of person, which is the main subject of all branches of law, has an important place in the world of law. Because the person is the owner and subject of the rights and obligations regulated by the rules of law. A human being is accepted as a person by birth and depending on this aspect, he has the capacity to have rights. In the ordinary course of life, the rights that depend on the person may be terminated in various situations. Person and personality related rights, their beginning and end are expressed in the context of the Turkish Civil Code. In this respect, the person who is determined as the inheritor with the termination of the personality in the form and/or situations specified in the laws cannot establish new legal transactions in the legal order. However, following the termination of the personality, some legal actions may need to be completed. One aspect of the legal proceedings within this scope is the effects of death (termination of personality) on the Turkish Tax System. In other words, in case of death, the tax transactions of the deceased will have to be carried out for the heirs whose refusal has not been inherited, for the new liability that will occur after death. The article was examined in a purposive, complementary and descriptive framework, and the death of the taxpayer and the features that emerged in the Turkish Tax System were emphasized, and the effects of the termination of the personality on the current legislation were revealed. In this context, the effects of the termination of personality within the framework of natural persons will be evaluated in the eyes of the laws within the scope of the Turkish Tax System.

Hassan Mohseni, Hadi Malektabar Firouzjai

Plea as a procedural application is accepted for more than one hundred years in our legal system, notably by the Law of Civil Procedure 1911 and since that time this concept used in our legal writings as that term without any changes. However, the meaning our example of Plea of Procedure have not ever been analyzed our revised and so we cannot find the main difference of Plea from other Defense Means such as substantial defense or non-acceptation means. We believe that historical background of Plea in French legal system which was categorized generally all means of defense as Plea have been imported to our legal system without changes but Plea in French legal system recently have been distinguished from other means of defense very strictly. In our legal system the new law of civil procedure 2000 maintained that old French tradition and have some influences of Islamic Law as well.Plea as a procedural application is accepted for more than one hundred years in our legal system, notably by the Law of Civil Procedure 1911 and since that time this concept used in our legal writings as that term without any changes. However, the meaning our example of Plea of Procedure have not ever been analyzed our revised and so we cannot find the main difference of Plea from other Defense Means such as substantial defense or non-acceptation means. We believe that historical background of Plea in French legal system which was categorized generally all means of defense as Plea have been imported to our legal system without changes but Plea in French legal system recently have been distinguished from other means of defense very strictly.

Coline Senior, Alenka Temeljotov Salaj, Milena Vukmirovic et al.

The purpose of this paper is to explore the challenges of an old low-standard urban district with a strong historical and cultural heritage and propose more sustainable renovation solutions, acceptable for the residents and municipality. The challenges of physical renovation or refurbishment are complex due to poor condition of the buildings, municipal ownership and governance, mixed management with community and low rents, which are insufficient to cover the costs. The paper discusses the proposed solutions of living standards, supported by the research in two directions: (i) available resources and reuse of materials, (ii) developing a renovation guidance for inhabitants from the building physics perspective, including indoor environment quality. Challenges related to energy efficiency are addressed from the decision-making perspective to overcome the barrier of lack of motivation to invest in energy-efficient measures at the individual and community level. The interdisciplinary approach complements engineering-focused studies with a focus on the comfort conditions and the influence of occupant habits in sustainable buildings. The methods used were literature review, case studies with observations and survey, looking to cover all technical, social, and historical aspects of sustainable renovation of cultural heritage buildings with the same level of importance. Results show that to keep a sustainable, low-cost urban living model, instructions for self-renovation are a valuable guidance for non-professional actors to make more sustainable choices. In conclusion, we can emphasize that inhabitants are accustomed to lower living standards, so the project is aimed to present the proper solutions for improvement as a balance between new sustainable technical solutions, personal self-renovation skills, habits, and health.

V. I. Teremetskyi, S. A. Maliar

The article is devoted to the problems of spontaneous construction in comparing the public interest in ensuring the sustainability of civil turnover, the introduction of as much property as possible through the elimination of certain defective legal regimes, as well as private interests of landowners, developers and some other participants in civil turnover (customers, contractors, equity investors, etc.). The approach to defining the essence of unauthorized construction as a way to acquire ownership of certain real estate, which has certain defects in the identification process, as well as in terms of behavioral and object perception of this legal phenomenon is determined. It is established that in the legislation of the European Union there is a perception of the property law (Germany, Austria) and the binding legal law (France) model of the legal nature of spontaneous construction. Ukrainian legislation reproduces the features of both models within the Civil Code of Ukraine and special regulations. It is emphasized that the law-making legal fact for the recognition of the relevant real right to unauthorized construction is a court decision or a decision of an administrative body. At the same time, in order for the emergence of property rights, the case law does not in any way level the existence of the procedure for putting immovable property into civil circulation. The judicial practice and the development of the science of civil law are analyzed, on the basis of which it is concluded that the current approach, which differentiates construction activities, endowed with signs of unauthorized construction, where the determinants are the place of its holding, the volume and quality characteristics associated with the lawful or illegal use of land. Given the behavioral or objective perception of the legal nature of unauthorized construction, an analysis of the case law of courts of various instances, resulting in the own vision of resolving legal situations to regulate public relations for unauthorized construction depending on the legal status of entities claiming to legitimize it, or the legal regime of such property. According to the results of the study of the content of the draft Concept of renewal of the Civil Code of Ukraine, attention was drawn to the prospects for further improvements in the legal regulation of civil relations in relation to unauthorized construction.

Muhammad Irfan Hilmy, Muhammad Fadhali Yusuf

Force majeure becomes one of debtor's objections when there is a default in an agreement. In determining the circumstances included in the force majeure criteria, the judge considers the clause of the agreement and the effect that results from a situation on the fulfillment of the achievement. Every incident may not be said to be a force majeure because it sees how much influence factors that influence achievement of achievement. Force majeure is determined because of several things based on the cause, nature, subject, and scope. Juridical provisions related to force majeure in Indonesia are contained in the Civil Code, Laws and Jurisprudence. This paper will discuss the practice of determining force majeure in Indonesia, which refers to a judge's decision that sets a situation as a force majeure. The purpose of this paper is to find out the judge's analysis in rejecting or establishing a forceful situation. The research method used in this paper is normative juridical or also called doctrinal law research. The author refers and reviews the jurisprudence that discusses force majeure to find out the differences in analysis caused by differences in case backgrounds.   Abstrak Force majeure menjadi salah satu tangkisan debitur ketika terjadi wanprestasi dalam suatu perjanjian. Dalam menentukan keadaan yang masuk dalam kriteria force majeure hakim mempertimbangkan klausula perjanjian serta pengaruh yang dihasilkan akibat suatu keadaan terhadap pemenuhan prestasi. Setiap kejadian belum tentu dapat dikatakan sebagai force majeure karena melihat seberapa besar faktor pengaruh yang mempengaruhi pemenuhan prestasi. Force majeure ditetapkan karena beberapa hal berdasarkan penyebabnya, sifatnya, subjeknya, dan ruang lingkupnya. Ketentuan yuridis terkait force majeure di Indonesia terdapat dalam KUH Perdata, Undang-Undang, dan yurisprudensi. Tulisan ini akan membahas praktik penetapan force majeure di Indonesia yang mengacu pada putusan hakim yang menetapkan suatu keadaan sebagai force majeure. Tujuan penulisan ini adalah untuk mengetahui analisis hakim dalam menolak atau menetapkan suatu keadaan memaksa. Metode penelitian yang digunakan dalam penulisan ini adalah yuridis normatif atau disebut juga penelitian hukum doktrinal. Penulis mengacu dan mengulas pada yurisprudensi yang membahas mengenai force majeure untuk mengetahui perbedaan analisis yang disebabkan karena perbedaan latar belakang perkara.  

Hugh McFaul, Elizabeth FitzGerald, David Byrne et al.

The sharp decline in levels of state-funded legal support has highlighted the importance of publicly available sources of legal information for facilitating access to justice. Mobile apps present an opportunity to provide legal information that can be targeted at particular audiences. University law schools, sometimes in partnership with civil society organisations, are beginning to engage their students in cross-disciplinary projects to create mobile apps, which can provide free legal information and guidance to the public.The aim of this case study was to evaluate one such project which involved the co-design of a mobile app for the purpose of disseminating information on employment law. Law, education and computing academics worked with undergraduate law students over a period of 3 months and the prototype app was reviewed by legal advice charities. The findings have implications for how universities can work across disciplines and in partnership with civil society to provide opportunities for their students to use technology to apply their disciplinary knowledge to enhance the public good.

Emilija Gjorgjioska, Dijana Gorgieva, Zorica Stoileva et al.

The Covid-19 pandemic has undergone tectonic changes in the way the whole social order works. These changes did not spare the civil proceedings. This paper aims to analyze how civil proceedings will be conducted in the field of civil law during the state of emergency, but also after the end of the state of emergency, while measures to protect against the new virus, Covid-19 take place. The subject of analysis is the comparative supranational and national civil process solutions for dealing with the pandemic, with a special focus on the situation in the Republic of North Macedonia.

Homer G. Angelo

V.A. Belov

In this paper, D.I. Meyer’s two works – “Legal Research on the Commercial Life of Odessa” and “Essay on Russian Law on Bill of Credit” – have been analyzed. The work “Legal Research on the Commercial Life of Odessa” is a thorough scientific elaboration of three areas of customary law (commission agreement, bills of credit, and marine insurance), as well as the first discussion of trade customs in the Russian literature. The work “Essay on Russian Law on Bill of Credit”, in turn, can be characterized as the first experience of posthumous use of notes from students of the lectures delivered by D.I. Meyer. A.I. Vitsyn began to compile and publish the lectures delivered by professors that gradually turned into a course of Russian civil law. D.I. Meyer never worked on this work himself. According to the results of the analysis, the important and been undeservedly forgotten contribution (given the background of more striking successes in the field of civil law teaching) made by D.I. Meyer to the science of Russian commercial law has been revealed. It has been suggested that the title of one of the fathers of Russian civil law should be also supported by D.I. Meyer’s reputation as the “founding father of Russian commercial law”.

V. Azarov, D. Nurbayev

УДК 343.12The subject. The article is devoted to the analysis of a phenomenon "abuse of the right" from a position of the public and dispositive beginnings of his manifestation.The purpose of this article is to consider public and dispositive principles of abuse of the right in the scope of legal theory to qualify this phenomenon in criminal proceedings properly.Methodology. The author use methods of theoretical analysis and interdisciplinary approach as well as legal methods, including formal legal method and comparative law.Results, scope of it’s application. The authors note that the use of the advantages offered by abuse of the right is initially inherent only for the defending party in criminal proceedings.Abuse of the right in the procedural segment of disposition appears in the implementation of the right to protection in the criminal procedure as well as in the implementation of almost any rights in the civil proceedings.The main resource of publicity is realized exclusively by the courts in the civil procedure as well as by all government entities and officials in the criminal process. That’s why abuse of the right is interdicted by the activity of the court in civil procedure.The imperative method of legal regulation of public relations, that is the basis of publicity, is in fact one of the ways of prevention and suppression of abuse of rights. The disposition method, that is the basis of competition in legal relations, is a catalyst for the creation of situations of possible abuse of rights.Abuse of rights is manifested first and foremost in terms of the disposition, moreover – the higher the level of disposition in the particular branch of law provokes the greater likelihood of abuse of the right. Publicity limits disposition and, therefore, the possibility of abuse of the right.Conclusions. Legal institute of abuse of right requires early normative entrenchment in the criminal process. It should contain specific grounds for restricting specific rights, which is abused by party of procedure.The authors allow only one kind of liability for abuse of rights: a temporary restriction of the subjective rights of participants in criminal procedure on a very short term. It can be used only for systematic abuse of this right. Only court should have an authority for such restriction, taking into account prior notification of the supervising Procurator.

Alexandru MATEESCU

This work contains and mainly tackles the contract of consumption, its differences and similitudes to a general contract, manners of applying it, and the way in which the former can be better coordinated and correlated to the general contracting terms, established by the civil law. Along the years, the consumption contract has undergone several addenda and it has come to represent an instrument of both refference and regulation for the socio-economical relations between two parties who have a commercial agreement. The general law frame has had a great influence in the development of the consumption contract, as well as on its applicability conditions and its manner of deployment. Through the development of the judicial law concerning the contract of concumption, this type of agreement has influenced, through its human and social nature, both the general contract, and the specific frame it relates to. The relationship between the two types of contract is one of interdependence, which is determined by the need of judicial regulation in the Romanian and European economy. The ceaselees development of interhuman relations pushes society towards maintaining a continuous study of the advancement of specific legislation and judicial regulation. The main purpose of this work is analyzing the general judicial frame and the way in which the differences between the general contract and the consumption one may represent a benefic and mutual influence on protecting the citizens’ rights, which in the case of the consumption contract encompasses the protection of consumers’ rights. Also, it will analyze the aspects that determine the manner of application and the the differences that can be surmounted in order to achieve a better cohesion between these types of contracts.

Vilim Herman, Milorad Ćupurdija

The article analyses recent trends in restructuring public administrations which focus on more flexible forms of employment. Within the process, stress is placed on the productivity and efficiency of civil service employees, who need to adapt to modern globalization trends and economic growth, as well as to a more demanding and dynamic labour market. Public administration reforms in Europe have been implemented for a signiflcant period of time now. However, even though all Member States have decided on a similar model of public administration reform, there are still various differences which are due to different historical and administrative backgrounds. In order to indicate the various types of reforms in public administrations, the authors use a comparative method. The authors also pose the question: how to achieve a balance between short-term and long-term solutions when it comes to the roles of employer and top manager? Special attention is given to the application of the flexicurity approach in public administration. The flexicurity model has proved that a compromise between flexibility and security is more than possible. Therefore, this article deals with the essence of the flexicurity model as it is understood in Europe, as well as with the basic principles which need to be followed when it is applied on national labour markets.

R. Hoskisson, Albert A. Cannella, L. Tihanyi et al.

A. Musacchio

Sanna Kyllönen

When states cooperate in order to form an international organization, they authorize it to have the power to perform certain functions with legal consequences. While performing these functions, an international organization may incur responsibilities to third parties. These third parties may be states, other organizations, individuals or legal persons. All the different possibilities regarding the status of the third party cause situations that differ greatly from each other. The main rule is that international organizations are responsible for the consequences of the acts performed by them.1 The capacity of international organizations to be held responsible under international law corresponds to their respective capacities to operate under international law. The responsibility of international organizations varies according to the scope of their legal personality. The responsibility will depend on their legal status vis-à-vis both member and non-member states, and will differ from organization to organization.2 With the increasing number of international organizations executing tasks with highly injurious potential, the responsibilities need to be defined clearly. The efforts to provide international organizations with the status of international legal subjects with a responsibility of their own have proved only partially successful. The law on the responsibility of international organizations is unclear.3 The two principal aims of the law of international responsibility in both domestic common law and civil law systems are: i) to prevent or minimize breaches of obligations prescribed by law; and ii) to provide remedies for those subjects whose legal rights have been infringed due to such violations. A general examination of the evolution of the law in both international and national systems in recent decades shows a change of perspective. There used to be a tendency to stress the limitations of the obligations of the potential wrongdoer, but the emphasis has shifted and now tends to be on the rights of the injured parties.4 Recently, international organizations in general and the United Nations (UN) in particular, have been placed under greater scrutiny.5 It is also noteworthy that the obligations of international organizations towards their member states have recently received some attention especially with regard to international financial institutions, such as the International Monetary Fund and the World Bank.6 In academia, this shift towards a more critical approach is reflected in the decision of the International Law Association (ILA) to create an international research committee on the 'Accountability of International Organizations'.7 The current possibilities to bring international organizations to account for their actions are limited when compared to existing possibilities with respect to states. In the absence of effective legal remedies against international organizations directly, attempts to file claims against member states continue. The view of many international law experts is that member states of an international organization do not incur legal responsibility for the acts of the organization by virtue of their membership in it. However, some writers accept that member state responsibility might be in order, if effective remedies against international organizations are lacking.8 Two basic questions are raised. Whether and under what conditions are international organizations obliged to comply with obligations under international law? What are the legal consequences of non-compliance, in particular regarding the responsibility of international organizations for damage caused in violation of the above-mentioned obligations? In theory, four alternatives can be offered as answers to these questions. The answers have also partly been followed in practice: i) Only the member states are held responsible, be it jointly, or severally and jointly; ii) the organization and the member states are held severally and jointly responsible; iii) the organization is held primarily responsible and the member states only secondarily responsible; or iv) the international organization is held exclusively responsible.9 The aim of this article is to examine the responsibility of international organizations, from a procedural perspective as a contextual perspective. It touches upon the question of member state responsibility and the phenomenon of 'piercing the corporate veil'.10 Four concrete steps of improvement, which could be taken in order to improve the situation regarding international responsibility and to increase accountability, are proposed.

J. Dainow

M. Graff