Shortcomings in the Trust Law, 1979

1980 ◽  
Vol 15 (3) ◽  
pp. 372-417 ◽  
Author(s):  
Joshua Weisman
Keyword(s):  
Legal System ◽  
The State ◽  
The Other ◽  
Other Hand ◽  
The Law ◽  
Trust Law

The Trust Law, 1979, came into force at the beginning of February, 1980, resolving the debate of many years as to whether the institution of private trusts is recognized in the Israeli legal system. The debate was carried on in the cases, and in scholarly articles, but despite all the ink that was spilt, the law remained uncertain. Two views recently expressed on the question, one by Cohn J. in the case ofInzelv.Kugelmas, and the other by experts in the Ministry of Justice in their preamble to the Trust Bill, are clear evidence of the uncertainty. Cohn J. wrote:The learned advocate was not aware that this Court has already recognized the existence of private trusts in Israeli Law several times, and will not turn the clock back now…The experts in the Ministry of Justice, on the other hand, stated that—The courts in Israel ruled, both in the time of the Mandate and after the establishment of the State, that the institution of private trusts has not been incorporated into Israeli law.

scholarly journals Historical Development over Religious Liberty in the Indonesian Constitution

2020 ◽  
Vol 3 (1) ◽  
pp. 65-74
Author(s):  
Mahaarum Kusuma Pertiwi
Keyword(s):  
Legal System ◽  
Historical Development ◽  
The State ◽  
Religious Liberty ◽  
The Other ◽  
Constitutional Amendment ◽  
Court Decisions ◽  
Other Hand ◽  
Political Consensus

This paper finding is the existence of recurring unsettled negotiation between the Islamists and the Nationalists during three important constitutional works in Indonesia (the making of 1945 Constitution; the work of Konstituante to draft a new constitution in 1955-1959; and the constitutional amendment 1999-2002). Such fragile political consensus creates a legal gap in the Indonesian legal system: constitutional guarantee on religious liberty on one hand, and discriminative derivative laws and court decisions in relate to religious liberty on the other hand. This paper argues the legal gap happens because historically, discourse over religious liberty never settled during constitutional debates. It leads to ambiguous constitutional articles on religious liberty such as the seemingly contradicting Article 28 I (1) on absolute rights and Article 28 J (2) on the limitation of rights. The ambiguous constitutional articles give no solid basis for protecting religious liberty, especially for minority, although explicitly Article 29 (2) of the Constitution stating, ‘The State guarantees freedom of every inhabitant to embrace his/ her respective religion and to worship according to his/ her religion and faith as such’. This paper will explain the unsettled negotiations during the making of Pancasila and the Jakarta Charter in 1945; the debate within Konstituante’s work in 1959; and the debate during constitutional amendment in 1999-2002.

Consensual Elements in German Criminal Procedural Law

2014 ◽  
Vol 15 (1) ◽  
pp. 15-42
Author(s):  
Folker Bittmann
Keyword(s):  
Legal System ◽  
Criminal Procedure ◽  
The Other ◽  
The Past ◽  
Procedural Law ◽  
Other Hand ◽  
The Law ◽  
The One

The aim of German criminal procedural law is not to convict the accused at any cost. Even a guilty party can only be convicted if the criminal procedure is held in accordance with the law. If this is not possible, the German legal system accepts the risk of possibly acquitting a guilty party; it finds this more tolerable than the irregular conviction of the culprit. A criminal procedure seeks the truth. Only on the basis of a judicial conviction of the crime and its culprit may a sentence be imposed. This, though, can only be based on the so-calledprocedural truth.On the one hand, the past can never be reconstructed precisely; on the other hand, clarification can only be found through legal means and by following designated paths allowed by procedural law. Therefore, further investigation must cease if it is only possible to proceed by violating procedural law.

Vacant inheritance, heirless inheritance and claims from Warsaw Decree (part II)

2019 ◽  
Vol 3 (3) ◽  
pp. 11-28
Author(s):  
Kamil Zaradkiewicz
Keyword(s):  
Civil Code ◽  
The State ◽  
The Other ◽  
Inheritance Law ◽  
Other Hand ◽  
Current Article ◽  
The Law ◽  
Post War ◽  
The One ◽  
Definition Of

The second part of the article concerns the interpretation and application in the central parts of Poland of the provisions of the Napoleonic Code on vacant inheritances. The Code does not provide a definition of the vacant inheritance. The key to the interpretation of the provisions on the acquisition of vacant inheritances by the state is the term “is presumed to be” (a vacant inheritance) used in the former Article 811 of the Napoleonic Code (French: est réputée vacante), see the current Article 809 of the French Civil Code which omits the term “is presumed to be”).This indicates that, in the absence of suitable heirs, the law introduced a specific rebuttable presumption of a vacant inheritance, belonging to the state. Only after an appropriate period of time did the presumption turn into certainty, i.e. it resulted in the inability to invoke the inheritance title. In practice, this meant that thirty years after the time necessary to draw up an inventory of the inheritance and to deliberate (ad deliberandum), the inheritance ultimately fell to the State. The mechanism adopted in the Napoleonic Code made it possible, on the one hand, for the heir to acquire the inheritance, which remained under the supervision of a curator for the period when it was presumed vacant, and on the other hand, it prevented the existence of inheritances without a claimant, i.e. inheritances devoid of the persons entitled to take them over. In the post-war period, when the communist authorities passed subsequent legal acts concerning the provisions of the inheritance law, the deadlines for heirs to apply for inheritance changed. Ultimately, the legislator did not adopt the model of vacant inheritances in the regulations harmonising the inheritance law on the Polish lands since 1947; instead, a solution analogous to the one provided for in the German Civil Code of 1986 (BGB) was adopted. The “shortening” of the statute of limitations also influenced the assessment of the admissibility of further application of the provisions of the Napoleonic Code in regard to vacant inheritances during the period of the People’s Republic of Poland regime (despite the existence of different inheritance law solutions).

scholarly journals Criminal Justice in Post-Mao China: Some Preliminary Observations

1981 ◽  
Vol 87 ◽  
pp. 440-469 ◽  
Author(s):  
Shao-Chuan Leng
Keyword(s):  
Criminal Justice ◽  
Legal System ◽  
World Wide ◽  
Legal Order ◽  
The Other ◽  
Judicial Process ◽  
Other Hand ◽  
The Law

China' trial of the “ gang of four ” and six other members of the “ Lin-Jiang cliques ” has attracted world-wide attention.* The Chinese press has pictured the trial as a landmark: the end of a lawless era, a successful test of the new legal system, and a demonstration that all are equal before the law.1 Contrary to Chinese leaders’ expectations, however, many observers have considered the trial as essentially a political rather than a legal exercise.2 On the other hand, the holding of this trial appeared to reflect, among other things, Beijing' desire to publicize its commitment to legality, and the controlled and selected reporting of the court sessions has given the outside world glimpses of the judicial process under China' new and emerging legal order.

scholarly journals LIMITATION OF THE RIGHT TO REQUIRE ENFORCEMENT UNDER THE RULE OF THE NEW CIVIL PROCEDURE CODE OF AN ENFORCEMENT ORDER OBTAINED BEFORE ITS ENTRY INTO FORCE

2017 ◽  
Vol 11 (2) ◽  
pp. 13-27
Author(s):  
Carmen Adriana DOMOCOȘ
Keyword(s):  
Coercive Force ◽  
Civil Procedure ◽  
The State ◽  
The Other ◽  
Legal Provisions ◽  
Procedure Code ◽  
Other Hand ◽  
The Law ◽  
The Right ◽  
Court Of Appeal

In a case, the court of appeal have interpreted the provisions of the law regarding the enforceable judgments delivered at first instance, with the right of appeal, or those in respect of which the parties agreed to directly exercise the appeal, when those interested or harmed by the enforcement can require the cancellation of the enforcement documents drawn up by violation of the legal provisions. The jurisprudence is not unanimous to consider the enforceability of the final civil decision is, however, a temporary one, until it is confirmed by the court of appeal, and it is removed when the court of appeal gives a contrary approach. One of the roles of the limitation is to provide the security of legal relationships, because after the expiry of the limitation period the debtor is satisfied that it can no longer be enforced, and the creditor knows that he no longer benefits from the coercive force of the state in order to recover his debt. On the other hand, to oblige the creditor to enforce a temporarily enforceable decision, about which he has no certainty that it will be upheld on appeal, means violating the very principle of the security of legal relationships, which the legislator intended to protect.

Community Interests Across International Law

2018 ◽  
Keyword(s):  
International Law ◽  
Legal System ◽  
The State ◽  
The Other ◽  
Common Interests ◽  
The Law

This book explores the extent to which contemporary international law expects states to take into account the interests of others, namely third states or their citizens when they form and implement their policies, negotiate agreements, and in general conduct their relations with other states. The contributions to this book also inquire whether international law imposes on states in certain situations not only the duty to consider the interests of people outside their territory or control but also the duty to accommodate them—at least to a certain extent. The book considers various manifestations of what has been described as community interests in most areas regulated by international law. Accordingly, this book takes stock of the state of contemporary international law and observes the extent to which the law has in fact evolved from a legal system based on more or less specific consent and aimed at promoting particular interests of states to one that is more generally oriented toward collectively protecting common interests and values. By systematically covering different areas of law, we are asking in each area whether states are required to take into account the interests and rights of third states (or of the persons under their jurisdiction or control). The book does not provide clear answers in favor of a simple progress narrative, but assesses the degree to which elements of one or the other paradigm coexist and interact in different fields of international law.

The Separation Thesis and the Limits of Interpretation

1999 ◽  
Vol 12 (1) ◽  
pp. 135-150 ◽  
Author(s):  
Andrei Marmor
Keyword(s):  
Legal System ◽  
Legal Reasoning ◽  
Close Relation ◽  
Legal Positivism ◽  
The Other ◽  
Legal Validity ◽  
Other Hand ◽  
Separation Thesis ◽  
The Law

There are many versions of legal positivism; perhaps as many as there are legal positivists around. All the versions of legal positivism, however, subscribe to the so-called Separation Thesis. This thesis basically maintains that detenriining what the law is, does not necessarily, or conceptually, depend on moral or other evaluative considerations about what it ought to be in the relevant circumstances. Legal positivists differ, however, and quite substantially, over the appropriate interpretation of this thesis. The so-called ‘strong’, or ‘exclusive’ version of legal positivism maintains that moral considerations never determine the legal validity of norms. ‘Soft’ positivists, on the other hand, do maintain that there is a close relation between legal validity and morality, but they hold that this relation is, at best, a contingent matter; it does not derive from the nature of law or legal reasoning as such. Soft-positivists claim that moral considerations determine legal validity only in certain cases, namely, in those cases which follow from the rules of recognition that happen to prevail in a given legal system.

scholarly journals The Judge and The Right of Preemption Land in Cameroon

2021 ◽  
Vol 4 (1) ◽  
pp. 52-69
Author(s):  
Désiré Aurèle Mbang Essono
Keyword(s):  
Legal System ◽  
Land Ownership ◽  
The Other ◽  
Other Hand ◽  
The Law ◽  
The Right

The action of the Cameroonian judge in the context of the preservation of land ownership faced with the right of pre-emption remains very marginal. On the other hand, thanks to the increase in its field of competence, the administrative judge has been erected as a full-fledged protector of the property of private persons subject to pre-emption. Through his action, the administrative judge should ensure that land pre-emption operations comply with the law. In the event of non-compliance with legality, the respondent could be held liable. Moreover, the Cameroonian legal system reserves a traditional place for the judicial judge in the protection of pre-empted land ownership, as he contributes through his office to counter any infringement of land ownership. The judicial judge's field of competence could have been broadened with the possibility of carrying out legality control of land pre-emption operations, but this attribution of competence remains very clearly defined.

Knowledge which Reached a High Degree of Probability

1967 ◽  
Vol 2 (1) ◽  
pp. 18-34 ◽  
Author(s):  
D. Bein
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Other Hand ◽  
The Law ◽  
High Degree

In the decisions of the Israel Supreme Court delivered since the establishment of the State, one sometimes comes across the express or implied statement of the rule that: “the knowledge possessed by the accused at the time of the act that his conduct would lead to a consequence which the legislature desired to prevent, is by a construction of the law regarded as intention to bring about this consequence. ‘Knowledge’ in this context does not necessarily mean ‘full and certain’ knowledge that this consequence is inevitable but on the other hand it must be knowledge which reached a high degree of probability.”The object of this article is to clarify a few aspects of this rule (which, for the sake of brevity, will be referred to as the rule of “constructive intention”).

The Principles of Zakat and Tax Upon the Time of Rasulullah SAW.

2017 ◽  
Vol 1 (1) ◽  
pp. 90
Author(s):  
Dian Septiandani ◽  
Abd. Shomad
Keyword(s):  
Literature Review ◽  
Economic Thought ◽  
The State ◽  
The Other ◽  
Primary Data ◽  
Other Hand ◽  
Islamic Economic ◽  
General Expense

Zakat is one of principal worship requiring every individual (<em>mukallaf</em>) with considerable property to spend some of the wealth for zakat under several conditions applied within. On the other hand, tax is an obligation assigned to taxpayers and should be deposited into the state based on policies applied, with no direct return as reward, for financing the national general expense. In their development, both zakat and tax had quite attention from Islamic economic thought. Nevertheless, we, at first, wanted to identify the principles of zakat and tax at the time of Rasulullah SAW. Therefore, this study referred to normative research. The primary data was collected through library/document research and the secondary one was collected through literature review by inventorying and collecting textbooks and other documents related to the studied issue.

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