Hasil untuk "Civil law"

Qingqing HUANG

Civil Code of the People's Republic of China stipulates that when a patient "cannot or should not" be informed of their medical condition, such information should instead be disclosed to close relatives. But in practice, the surrogate exercise of cancer patients' right to informed consent by family members has shown signs of expansion and abuse, seriously infringing upon patients' personal rights and dignity. There is a pressing need to regulate the legal interpretation of the "cannot or should not" clause through legislation, judicial interpretations, and guiding case law. The scope of protective medical measures must be narrowly defined, and medical institutions should be granted limited discretionary authority when fulfilling their duty of disclosure. Additionally, a statutory procedure or third-party evaluation mechanism should be established to assess a patient's capacity for medical decision-making. These measures would reduce the legal risk of subrogation of informed consent and better safeguard the rights and interests of patients.

V. A. Boldyrev, V. A. Maksimov

The subject of the article is new patterns observed in approaches to the principle of freedom of contract from legal science and law enforcement practice.The purpose of the article is to show the directions of evolution of the principle of freedom of contract in connection with the influence of information technology on civil circulation and changes in the significance of this principle for law enforcement.Main results, scope of application. In science, there is a transformation of ideas about the principle of freedom of civil contract. To the provisions of the codified civil law, reflecting the basic postulates of the principle of freedom of contract, modern researchers add freedom to choose the form, as well as the method (order) of its conclusion. This principle turns out to be actually limited by a technological innovation – a smart contract, for which the possibility of changing and terminating the contract, as a rule, is absent. The expansion of freedom of contract is observed in the circulation of new objects of civil rights  – cryptocurrencies. Research in the field of neurophysiology (neuromarketing) calls into question human free will, and with it the freedom of contract. The collected statistical data characterizing the content of judicial acts allows us to state a pattern in recent years – a lesser orientation of courts considering economic disputes towards the principle of freedom of contract. The increasing role of centralized legal regulation of civil relations leads to a decrease in the role of autonomous regulation, and therefore a decrease in the importance of the principle of freedom of contract. The observed trend of growth in the number of norms in legislative acts can hardly be called positive – its continuation can lead to a deterioration in the skills of participants in civil transactions to develop flexible economic decisions, a decrease in responsibility and the level of legal culture. The results obtained will be useful for improving lawmaking.The research methodology is represented by statistical, formal logical, formal dogmatic and comparative research methods.Conclusions. Cycles of growth and decline in the importance of the principle of freedom of contract for law enforcement practice are in organic connection with the number of legal norms regulating civil relations, institutional transformations and changes in the approach to the official interpretation of the law. Lawmakers should ensure greater stability of legislation regulating this area of civil relations.

Oleksii Ostapenko, Mariia Blikhar, Iryna Khomyshyn et al.

Today, it is appropriate to talk about cooperation between Ukraine and EU member states in matters that are functional for their legal systems. The first is the protection of the rights and freedoms of citizens; providing asylum to refugees from other countries; adaptation of legislation on the regulation of relations in the field of migration, both legal and illegal; fight against illegal employment; and others. It was found that the administrative law of Ukraine is developing in complex political-economic and social-legal conditions. Therefore, the use of European experience in the field of administrative and legal regulation of social relations in Ukraine should not imply mindless copying, which can negatively affect society and the state. The topic of the research should be the creation of national methodological recommendations on quality indicators of individual branches of law in accordance with the quality standards of legislation and law of the countries of the European Union. The introduction of European approaches to the regulation of social relations at the administrative and legal level in Ukraine must be balanced and adapted so that there is no negative impact on the development of society and the process of state formation. At the same time, the comparative legal study and rational use of foreign experience in the development of administrative law allows to significantly expand the so-called "legal field", enriching it with the experience of foreign countries. The current conditions for the development of administrative law in Ukraine depend on globalization, which affects all spheres of life, affecting the development of unified legal values and democratic principles of European administrative law, and the national administrative law system of individual European countries. In fact, there are two parties of subjects endowed with the corresponding rights and obligations in the field of administrative-legal relations.

Alberto Luiz Hanemann Bastos

Os Juizados Especiais foram instaurados com o propósito de disponibilizar procedimentos céleres, simples e informais, com contornos mais adequados às necessidades dos cidadãos em situação de hipossuficiência econômica, social e informacional. Inobstante, várias das regras aplicadas ao sistema dos juizados não se coadunam com o intuito de ampliação do acesso à justiça, eis que, ao invés articularem um mecanismo eficiente para a tutela de litigantes vulneráveis, dificultam a reivindicação de seus direitos em juízo. Desse modo, com base em revisão bibliográfica e em inferências de caráter predominantemente indutivo, o presente estudo tem por objetivo avaliar a dissonância do discurso que legitimou a instauração dos Juizados Especiais em relação às diretrizes procedimentais consignadas nas leis responsáveis por regulamentá-los. Num primeiro momento, serão revisitados marcos teóricos que exploraram o entrelaçamento do campo do processo civil com a ideologia e a cultura, a fim de demonstrar que o conteúdo do direito processual é fortemente influenciado por forças exteriores ao universo jurídico. Após, proceder-se-á à análise do conteúdo da Lei no 9.099/95, de modo a apontar dispositivos que contradizem a promessa dos Juizados Especiais de tutelar os direitos dos cidadãos hipossuficientes. Na sequência, com base no conceito de seletividade do sociólogo Claus Offe, serão esboçadas possíveis explicações para as contradições havidas entre a aparência e a realidade dos Juizados Especiais, sugerindo-se que, por detrás de sua configuração procedimental, reside o intuito de precarizar o tratamento das “pequenas” causas. Por fim, serão expostas as conclusões alcançadas ao longo da pesquisa.  

Fattyma Blum Gonçalves, Elias Marques de Medeiros Neto

The Civil Process Code promulgated in 2015 brought, at the beginning of the normative text, the fundamental rules applicable to the process, as well as the predictability of the application of the diploma to processes of others branches of law – administrative, electoral and labor – demonstrating its importance to the national legal system and the necessary synergy to the system. The fundamental rules listed as the principles of inertia, due process, publicity, good faith, cooperation and contradictory and broad defense will be the subject of analysis in this study. While the themes of subsidiary application of the fundamental rules of civil process code and specifically the administrative process contained in Law 12.846/2013 and the relationship with those fundamental rules will also be analyzed, concluding that the Civil Process Code is an instrument of unique relevance to the national legal system, with its consequent applicability to the administrative process in respect of the natural characteristics of this particular procedure.

Cao Xinke, Lu Zheyuan, Hao Xianwu et al.

In order to study the suspender layout parameters and design parameters of the tied arch bridge with mesh suspenders under the action of vehicle load, the structure stress is more reasonable and meets the higher economy and aesthetics. Taking a 96m span reticulated tied arch bridge as the engineering background, the finite element model is established by using Midas/Civil 2019 program. The variation law of internal force and Suspender Force of the structure is calculated and analysed under the change of rise span ratio and suspender number parameters, and the relatively optimal value range of corresponding parameters is given. The results show that the rise span ratio should be 0.2-0.24; The number of Suspenders for one side arch rib should be 34-38; The relatively optimal range of the above parameters is discussed for reference.

Elias Marques de Medeiros Neto, Jefferson Patrik Germinari

In order to reach the elementary goal of the maintenance of public order, in the context of the Democratic State of Law mentioned in the preamble of the Federal Constitution of 1988, where the Federative Republic of Brazil is sustained, several prerogatives and guarantees must be observed, either in the public sphere, or in the private one, under a fundamental paradigmatic north, aiming with this to prevent the deterioration of basic rights of citizens. The dignity of the human person emerges from this in order to provide individuals with guarantees that are minimally considered in the face of possible transgressions that they may encounter in the various relationships of life in society. Given the importance of the subject, using a deductive method of research, the purpose of this work is to immerse itself in the Civil Procedural Law for the purpose of identifying, within the provisions in force of the Code of Civil Procedure, the main legislative exaltations in veneration of the principle of human dignity in the course of judicial deeds, since the scope of such foundation is considered comprehensive, broad in scope, covered under various biases, including the protection of other guarantees that are dependent on and intrinsically linked to it.

Паламарчук Сергей Александрович

В статье анализируется судебная практика Конституционного Суда Российской Федерации по рассмотрению обращений граждан о нарушении их конституционных прав отдельными нормативно-правовыми актами информационного законодательства. Рассмотрены конкретные случаи проверки на соответствие Конституции РФ отдельных положений различных федеральных законов. Сформулировано положение о механизме «виртуализации» конституционных прав граждан в третьем тысячелетии

Enzo Segovia Trocones

En el presente artículo, el autor analiza la distribución de competencias entre SuSalud y el Indecopi, a raíz de lo dispuesto por el Decreto Legislativo 1158. En particular, el autor aborda las funciones de regulación administrativa referidas a las infracciones en la prestación de servicios de salud por parte de privados en el ámbito nacional. Ello se realiza a la luz de las consideraciones propias de un derecho fundamental que es el derecho a la salud, el cual implica un deber activo para el Estado en su conjunto. Bajo esta idea, se plantean duras críticas a la forma en que se ha normado la distribución de competencias entre los organismos de la administración pública, a través de normas poco claras que aumentan significativamente los costos que afrontan los usuarios para formular sus denuncias.

Sven Korzilius

The article provides an overview of the historiographical debates on the relevance of law and courts for colonial slavery in the early modern, presenting several possible master narratives. Departing from the question about the legal sources used by the jurists of the early modern era producing “slave law in action”, the article focuses on procedural law of the freedom trials, especially on the interim situation of the person whose status the trial was about. This aspect of the proceedings is fascinating, because here the tension between the two extreme positions of the parties (liberty vs. slavery/property) is discharged for the first time. A close look at the sources proves that the jurists sought to justify the possible solutions not only with the custom of the courts (stilus curiae), but that a variety of legal formants contributed to colonial slave law, notably the authority of the Roman model, which the article presents shortly in its development, and of certain medieval forms, like the summariissimum or the actio (or execeptio) spolii. Legal doctrine was frequently quoted. As a result, Brazilian colonial slavery did not occur in a legal vacuum, but proves to have been highly institutionalized, and many aspects of the civil law of slavery appear as a relatively conservative continuation of European practice, without visible innovations to the favor or the detriment of the unfree population.

Багдасарян Сусанна Джамиловна, Петрова Светлана Владиславовна, Бжания Вадим Владимирович

Статья посвящена государственно-правовым процессам и развитию Республики Абхазия в XX ‒ начале XXI вв. Рассматривается конституционно-правовой статус Абхазии в составе советской государственности, изучается ее генезис в рамках национального строительства. Поднимается историко-правовой дискурс государственных, политических и правовых процессов. Проводится правовой анализ статуса Республики Абхазия в историческом и правовом аспекте последних десятилетий.

Lesia Savchenko, Anatolii Subbot, Yurii Demianchuk

The subject of the study is to investigate the causes of the influence of corruption on the economic development of Ukraine in the context of reform. Corruption occurs at all levels of society and in some way interferes in all elements of society, and thus negatively affects democracy and economic development of the country. The research methodology involves a retrospective analysis of the problem of inveteracy of corruption associated with the study of its impact on the economy. It is precisely endemic corruption that threatens the formation of Ukraine’s stability and its transition to a market economy. Corruption as one of the most ancient phenomena in society exists in every modern country. The general understanding of corruption is that corruption is detrimental to economic growth. There are also many causes of corruption, namely, a cultural factor, a psychological factor and, therefore, factors associated with the system can cause corruption in every society. The methodological basis for the research was the works of Tylchyk O.V., Bilous V.T., Subbot A.I., Lytvynenko V.I., Hvozdetskyi V.D., Popovych V.M., Bodnarchuk O.H. in the field of administrative law and issues of counteracting and combating corruption, which indicate that there are some factors, such as monopoly power, discretionary power, and low civil servants’ liability, that may provide opportunities for the development of corruption. The purpose of the article was to analyse the causes of the impact of corruption on the country’s economic and political development. Today, corruption has a wide range of activities that undermine the country’s development. Researchers argue that corruption affects the country’s economic growth. However, contradictory evidence was found that corruption can have a positive effect on the country’s economic development or have no significant impact on economic performance. On the basis of analysis of these works, it was established that corruption is the result of institutional weakness, with a potential adverse effect on the country’s economic efficiency. Corruption negatively affects the efficiency of public spending, reduces budget revenues and increases its deficit, impedes foreign direct investment, reduces the effectiveness of international assistance, and hinders economic development. As a result of the analysis, ways to reduce corruption are identified, which suggest a policy of reducing corruption in Ukraine. The result of the study was conclusions on the need to develop and form a coherent system of scientific and legal views on identifying effective anticorruption measures, optimizing and improving the effectiveness of anticorruption activities, with the involvement of international experience in coordinating and minimizing information leakage and engaging civic initiatives among the non-public sector.

Jose Roberto Ferreira Ribeiro, Jose Roberto Ferreira Ribeiro, Tarsis Barreto Oliveira

The Brazilian penal system is undergoing a structural crisis in the resocialization of the prisoners. The objectives of the penalty, described by the law of penal execution are not satisfactorily achieved through the methods applied by penitentiary institutions, to the extent that there are plenty of cases of criminal recidivism. This work emerges as an important tool in the reintegration of the criminal, offering besides occupation during the execution of the sentence, the opportunity for professionalization as an alternative to delict. Thus, the present study evaluates the importance of society's participation in the process of resocialization of prisoners, since, through social reintegration, the victim recovers its importance, being able to choose the path of morality and lawfulness. Throughout the study, alternative proposals for regeneration are presented, such as the creation of jobs for those who are in need of an opportunity to demonstrate their regeneration efforts, in order to be reintegrated into society. The study uses the deductive method through bibliographic research.

P. I. Yatsenko

The purpose of the publication of the article is to remind of legal relations between professional health workers and the subject of this relationship (patient), based on the rules of morality and law for patient (health law). The question of the morality, medical ethics and medical law in national system has both theoretical and practical aspects. After establishing regulatory frameworks, implementation of health activities ensures the effective implementation of regulatory functions and security law. Moral behavior is the rule, which is common for any society, including the medical. Standards of medical ethics as a social regulator of medical practice, are rules accepted in society on the medicine according to the perceptions of people might be right or wrong, useful and harmful, good and bad, fair and unfair. Norms of morality provide, formulate and secure the society (social systems), classes, enterprises and groups of people. Which are forms of social consciousness and social kind of superstructure, the rules governing by behavior in everyday life, in terms of production, in family relations, it can adjust communication with one to another in specific communities. The medical community, for a long time, is exhausted by ethics rules and ethics, mutual respect, unwritten rules of corporatism. The latter are often in conflict with legal rights. This is displayed in a special kind of solidarity, in an effort to "do not wash dirty linen" in defects of care. This is most significant while analyzing complaints of patients, forensic investigations on the unprofessional actions of medical personnel which leads to disability or death of the patient. It is often provides the medical commissions and forensic formulating to do the least possible harm to the accused doctor. Thus, the medical commission and forensic experts are members of the tribe medicinal inherent professional corporatism, involved in conflict with legal standards of health and civil law. Differences between moral norms and the rule of law in the regulation of medical practice boil down to the fact signifying that moral norms are formed in the mind, and the law established or authorized by the State; moral standards are abstract and legal sufficiently detailed official; violation of moral standards leads to measures of social influence, and violation of the law providing legal punishment. Areas of moral and medical legal relations sometimes extent overlaps. Medical law, a complex area of legal rights, addressed directly to man and intended to implement constitutional rights. It combines law for patient and health care worker and contributes the regulation of social relations in the field of medical practice. Providing medical activity we should understand a complex system that includes the organization and direct provision of health care for citizens number the diagnostic, therapeutic and preventive measures and quality control of medical services. The legal status of the patient provides medical help for everyone who asks for the person entitled to it. Of course, no medical indications for treatment will make it impossible, however, there is the potential likelihood for each person in need, if necessary, to receive fine care. Medical institution belongs to the state or municipal health system specializes in certain types of medical care in case of application of a citizen in need of treatment requires providing such kind of assistance. The fact of the contract for the provision of care involves the inclusion of its content conditions highly full paid, due to the nature of the medical intervention and a similar agreement. Professional morality in the medical community is a source of major provisions of the health law as an independent branch of law. Knowledge, realization and performance of health workers of such provisions in relation to the patient will avoid conflicts between subjects and objects of medical relations. Development, improvement and implementation of legislative and legal framework normative of state regulation for medical practice, separation health law as independent branch of law, is considered as strategy of Ukraine's state policy about the health.

Grzegorz Jędrejek

Alienation of a Movable Asset Encumbered with Tax Lien Summary The article deals with selected problems referring to executive proceedings in administration in case of alienation of a movable asset encumbered with tax lien. A tax lien is a lien imposed in order to secure public imposts on movables assets or property rights. According to the author, legal proceedings are acceptable in order to conclude whether a purchaser of a movable asset encumbered with a tax lien should abolish enforcement of administrative decision. The basis for execution is not an executory entitlement in the analyzed administrative case, but an appropriate provision of statutory law, which is the article 848 of Civil Procedure Rules, used by way of analogy.

Jadot Julien, Gemon Cathy, Richard Isabelle et al.

French law on major risk preventive information for population setup the objective to make the citizen able to act for his own safety and to participate through his behaviour to the civil security. To reach this objective, the policymakers developed 4 regulatory tools that have to be implemented by the local authorities. These 4 tools do not meet the success factors of risk communication measures aiming at inducing behavioural adaptation to face risks. This, added to the fact that people who die in the last floods events in France lost their lives due to either a lack of knowledge of the risk or to a risk taking behaviour, led us to question the impact of the preventive information regulatory tools. For the needs of our study we developed a risk perception and behaviour scale, helping us to classify the people of our sample. Our evaluation in Orléans shows that very few people know the regulatory tools and that their impact is quite low, far from the policymakers’ expectations. This highlight the real necessity to innovate in the field of flood risk communication.

Tatjana Zoroska Kamilovska, Tatjana Shterjova

The protection granted in the litigation procedure traditionally bears individual characteristics. It is primarily aimed at achieving individual justice in every particular case, providing the individuals the possibility to exercise their injured or disputed rights. In contemporary conditions, the question which is more and more getting imposed refers to the fact whether such a structure of the civil procedure can meet the needs to provide an adequate and efficient legal protection in disputes where there is a need to protect the rights of tens, hundreds, and even thousands of people in the cases of the so-called “mass harm situations“. These procedures can achieve not only an adequate compensation to the holder of the right for the resulting violations of that right (even in situations where the interests of the individual are so small, that it does not represent a sufficient incentive for that person to initiate proceedings for the protection of that right), but they also serve for a realization of a more general goal - to achieve the effect of „deterrence” against future violations of the collective rights and interests. In Republic of Macedonia a general legal framework for protecting collective rights and interests has not been established yet, but this issue is only regulated fragmentary, so there is a question arisen whether the time has come to develop a general legal framework for collective redress procedures.

E. Rasmusen, E. Rasmusen

Benito Arruñada, Benito Arruñada, Veneta Andonova

We argue that in the development of the Western legal system, cognitive departures are the main determinant of the optimal degree of judicial rule-making. Judicial discretion, seen here as the main distinguishing feature between both legal systems, is introduced in civil law jurisdictions to protect, rather than to limit, freedom of contract against potential judicial backlash. Such protection was unnecessary in common law countries, where free-market relations enjoyed safer judicial ground mainly due to their relatively gradual evolution, their reliance on practitioners as judges, and the earlier development of institutional checks and balances that supported private property rights. In our framework, differences in costs and benefits associated with self-interest and lack of information require a cognitive failure to be active.

W. Kawohl, E. Habermeyer