The System of Public Authority Liability in Germany

2020 ◽  
pp. 50-54
Author(s):  
Ferdinand Wollenschläger ◽  
Johannes Stapf
Keyword(s):  
Legal Protection ◽  
General Rule ◽  
Civil Code ◽  
Public Authority ◽  
Rich Variety ◽  
Relationship Of ◽  
Administrative Actions

The foundations of the present law in Germany can be succinctly stated as follows. First, a provision on public authority liability may be found in the constitution (the Grundgesetz) as well as in the Civil Code, the scope and relationship of which remain to be determined. Second, as a general rule, primary legal protection enjoys priority over secondary legal protection, i.e. claimants must bring a prior administrative appeal or complaint before being entitled to damages. Third, there is a rich variety of rules governing administrative liability: old and new, general and sector-specific, procedural and substantive. Although such rules are generally based on the existence of illegality, exceptionally lawful administrative actions may give rise to compensation.

scholarly journals Fiduciary Transfer of Ownership in Order to Secure the Satisfaction of Claim to Contemporary Right - Proposal De Le Lege Ferenda

2019 ◽  
Vol 4 (1) ◽  
pp. 6
Author(s):  
Ekrem Salihu
Keyword(s):  
Legal Protection ◽  
Civil Code ◽  
The European Union ◽  
Long Time ◽  
European Union Legislation ◽  
Court Proceedings ◽  
The Republic ◽  
Relationship Of ◽  
Positive Effect ◽  
Made In

Fiduciary transfer of ownership in order to secure the claim satisfaction represents the form of non-possessory securing of claim satisfaction, which is experiencing the Renaissance in the transition countries and in the contemporary right. This form of non-possessory pledge right is not regulated by law in our own right, nor does it enjoy legal protection. Fiduciary transfer of property on the contemporary right and legal circulation is experiencing affirmation because of the essential advantages in relation to the real means of securing the claim satisfaction. The most important advantage of fiduciary agreements in relation to the pledge (mortgage) is the efficiency of the fulfilment of the claims, because there are no extensively long court proceedings in this institution. In addition to the fiduciary agreement, unlike the pledge right, the object that is subject to the fiduciary agreement, the debtor may keep such property under possession and may use it for the fulfilment of the obligations towards the creditor, thus offering practical benefits to the debtor itself. In the Republic of Kosovo, fiduciary agreements and fiduciary transfer of ownership are not regulated at positive rates. The author of this paper is committed to regulate this legal institute with positive provisions, i.e. the issuance of a special law for this institute, or the same to be included in the new Civil Code of Kosovo, as it is about an institute which has been applied for a long time by countries of the continental system and is experiencing renaissance also in the countries of the region (Slovenia, Macedonia, Montenegro, Croatia). The regulation of this institute with positive provisions would have a positive effect on legal circulation and faster economic development in Kosovo. At the same time, regulation of this institute with positive provisions would enable alignment and approximation of the Kosovo legislation with the European Union legislation. In this paper we will present the reasons why this institute should be regulated by special law or incorporated in the new Civil Code of Kosovo. However, despite the fact that local positive provisions do not particularly regulate the fiduciary transfer of ownership institution in order to secure the satisfaction of claim, nevertheless, this institute is not entirely excluded. Thus, the Law on Obligational Relationship of the Republic of Kosovo, in Article 429 provides for the ceding in order to secure "Where ceding is made in order to secure the claim satisfaction of the concessionaire against the cedant, the concessionary is obliged to behave with the care of a good economist, namely of a good housekeeper on the collection of ceded application and after the collection is completed, after keeping as much as it is needed to meet its demands against the cedant, shall hand him over the surplus.

Dispositive Model of Active Legal Capacity of People with Mental Disabilities in France and Quebec in the Context of the Russian Civil Code Reform (Part II)

2021 ◽  
pp. 80-87
Author(s):  
Terdi E. S. ◽  
◽  
Skrynnik I. K. ◽  
Keyword(s):  
Mental Disorder ◽  
Legal Protection ◽  
Legal Regulation ◽  
Civil Code ◽  
Point Of View ◽  
Legal Capacity ◽  
Persons With Disabilities ◽  
Legal Norms ◽  
Leading Role ◽  
Legal Method

The article is devoted to the problem of the inconsistency of the Russian imperative model of active legal capacity, according to which the content of active legal capacity in case of its restriction due to mental disability of a person is prescribed by the law, to the Convention on the Rights of Persons with Disabilities ratified by Russia in 2012. The purpose of the paper is to demonstrate the shortcomings of the imperative model, the main of which is the lack of authority of the Russian court to individually determine the consequences of restriction of active legal capacity of a person due to mental disorder, taking in account degree of actual decrease of his cognitive and volitional abilities. This purpose is achieved by the consistent implementation of the following tasks. First of all, characteristic of the Russian imperative model of active legal capacity is given. Secondly, the French dispositive model of legal capacity is described. In this model the forms of legal protection, but not the categories of active legal capacity, incapacitation and restricted active legal capacity are the backbone concepts for the legal regulation of this group of relationship. It is noted that under the influence of the Convention on the Rights of Persons with Disabilities the more progressive, from the point of view of international law, forms of this model are stipulated in many foreign countries. Thirdly, the evolved form of the French dispositive model of active legal capacity, implemented in the Bill 18 «An Act to amend the Civil Code, the Code of Civil Procedure, the Public Curator Act and various provisions as regards the protection of persons», that was adopted by the National Assembly of Quebec in 2 June 2020, is analyzed. The main advantage of the latter is that the court, establishing the form of protection, is not bound by the legal norms that imperatively determine the content of active legal capacity of a person with mental disorder. The court is able, based on the cognitive and volitional abilities of particular person, to individually determine which acts person can perform by himself, alone or with the assistance of the tutor, and which one can be performed by the tutor only. The objectives of the study determine the leading role of the comparative legal method in its implementation. The provided research makes possible to assess the perspectives of borrowing of French or Quebec dispositive models of active legal capacity of people with mental disorder by the Russian legislator.

scholarly journals Kekuatan Hukum Pelekatan Sidik Jari Penghadap Oleh Notaris Pada Minuta Akta

Acta Comitas ◽  
2020 ◽  
Vol 5 (3) ◽  
pp. 436
Author(s):  
Wulan Wiryantari Dewi ◽  
Ibrahim R
Keyword(s):  
Legal Protection ◽  
Civil Code ◽  
Legal Research ◽  
Legal Relationship ◽  
The People ◽  
Notary Public ◽  
Administrative Sanctions ◽  
Legal Consequences

The notary's role is to provide legal protection to the people who use his services. The presence of a Notary is indispensable for the community concerned to hold a legal relationship with other individuals so that the Notary may also be liable. In the provisions of Article 16 paragraph (1) letter c of the Amendment Law, it is stipulated that in carrying out his position, the Notary is required to attach fingerprints on the minutes of the deed, giving rise to various polemics, because the said provisions do not stipulate further if in this case the smoker suffers from finger defects or events that result in damage to fingerprints which makes the investigator unable to put his fingerprint. The purpose of this research is to find out how the efforts that can be done by a notary against those who are unable to put fingerprints and the legal consequences of the absence of fingerprints against the strength of the deed. This research is a type of normative legal research. The results of this study indicate that efforts can be made by a notary if there are those who suffer from finger defects or experience events that cause fingerprint damage so that they cannot attach their fingerprints to the minutes of the deed, the relevant Notary can explain the matter at the end of the deed. he made it because the fingerprints attached to the address are an act that is required to a notary that can lead to administrative sanctions as contained in the Amendment Law. Due to the legal absence of fingerprints attached to the strength of the deed that is the deed made by the relevant Notary Public remains an authentic deed even though the fingerprints of the tappers are not attached based on Article 1869 of the Civil Code and the deed is valid and legally binding as long as the provisions contained in Article 1320 are fulfilled Civil Code.

scholarly journals Tinjauan Yuridis terhadap Perjanjian Kerja Yang Dibuat Secara Lisan

2019 ◽  
Vol 5 (1) ◽  
pp. 8
Author(s):  
Fauzi Sumardi ◽  
Ridho Mubarak
Keyword(s):  
Research Method ◽  
Legal Protection ◽  
Field Research ◽  
Civil Code ◽  
Employment Relationships ◽  
Work Relations ◽  
Library Research ◽  
Work Relationship ◽  
Conducting Research ◽  
Laws And Regulations

<p><em>Juridical Review Of Work Agreements Made Orally</em></p><p><em><br /></em></p><p><em>A verbal work agreement is a work relationship that is made without the signing of a work agreement, a verbal work agreement is sufficient with a statement that is mutually agreed upon by both parties and should be witnessed by at least two witnesses. The purpose of this study was to find out how the legal strength of work agreements made verbally and how legal protection for workers whose employment relationships are based on verbal work agreements. The research method used is the library research method, namely by conducting research on various written reading sources, and the Field Research method, which is a juridical review of workers whose work relations are based on verbal work agreements. The purpose of this study is to find out the answers to the problems discussed. The results of the study indicate that the legal strength of the work agreement made orally is not specifically regulated in the Civil Code or in other laws and regulations so that the arrangement of oral agreements only follows the arrangement of work agreements in general</em></p>

scholarly journals KEPASTIAN HUKUM DALAM KEPEMILIKAN SATUAN RUMAH SUSUN

JURTAMA ◽  
2019 ◽  
Vol 1 (1) ◽  
pp. 58-67
Author(s):  
Hestining Cholifah
Keyword(s):  
Legal Protection ◽  
Housing Unit ◽  
Legal Relationship ◽  
The Cost ◽  
Relationship Of

This study aimed to determine the legal relationship of the parties in the Agreement on Sale and Purchase (PPJB) Flats and legal protection for buyers of Flat Housing Unit if the seller / developer defaults. This research is a normative juridical research, namely research on laws that are in the legislation in force in Indonesia. This research focused on document research or literature which essentially looks for theories, views that have correlation and are relevant to the problems to be studied. The results of the study indicated that the legal relationship between the parties in the PPJB starts from the signing of the PPJB, so that a legal relationship is established which creates the rights and obligations of each party. Legal protection for buyers of Flat Units if the seller / developer defaults is through arbitration at the cost of joint responsibility by the parties. It meant that if there is a dispute between the parties regarding the sale and purchase agreement unit apartment, the settlement is not through public court or litigation, but the solution is taken through arbitration (non litigation)

scholarly journals Peranan Majelis Pengawas Daerah (MPD) Terhadap Pengawasan Pelaksanaan Jabatan Notaris Di Kabupaten Tegal

Jurnal Akta ◽  
2018 ◽  
Vol 5 (1) ◽  
pp. 179
Author(s):  
Dwikky Bagus wibisono ◽  
Umar Ma’ruf
Keyword(s):  
Supervisory Board ◽  
Legal Protection ◽  
Field Research ◽  
Social Institutions ◽  
Judicial Process ◽  
Basic Principles ◽  
Approach Method ◽  
Data Collection Technique ◽  
Relationship Of ◽  
The Relationship

AbstrakLembaga Kenotariatan adalah salah satu lembaga kemasyarakatan yang ada di Indonesia, lembaga ini timbul dari kebutuhan dalam pergaulan sesama manusia yang menghendaki adanya suatu alat bukti mengenai hubungan hukum keperdataan yang ada dan atau terjadi diantara mereka.Metode pendekatan yang digunakan dalam penelitian ini adalah yuridis empiris, spesifikasi yang digunakan dalam penelitian ini bersifat deskriptif analitis, teknik pengumpulan data ini menggunakan penelitian lapangan dan studi kepustakaan.Notaris sebagai pejabat umum dalam menjalankan jabatannya perlu diberikan perlindungan hukum, antara lain pertama untuk tetap menjaga keluhuran harkat dan martabat jabatannya termasuk ketika memberikan kesaksian dan berproses dalam pemeriksaan dan persidangan. Kedua, merahasiakan akta keterangan yang diperoleh guna pembuatan akta dan ketiga, menjaga minuta atau surat-surat yang dilekatkan pada minuta akta atau protokol Notaris dalam penyimpanan Notaris. Ketiga hal inilah yang menjadi dasar dalam Pasal 66 UUJN dalam hal pemanggilan Notaris untuk proses peradilan, penyidikan, penuntut umum atau hakim dengan persetujuan Majelis Pengawas.Kata Kunci: Majelis Pengawas Daerah, Pengawasan,Jabatan Notaris AbstractsThe Notary Institution is one of the existing social institutions in Indonesia, this institution arises from the needs in the association of fellow human who wants a proof of the relationship of civil law existing and / or occur between them.The approach method used in this research is empirical juridical, the specification used in this research is analytical descriptive, this data collection technique using field research and literature study.Notary as a general official in carrying out his / her position needs to be given legal protection, among others, first to maintain the nobility of dignity and dignity of office including when giving testimony and proceeding in examination and trial. Second, to keep secret deeds obtained for making the deed and third, to keep the minuta or letters attached to the Minutes of Notary or Notary's protocol in the Notary's depository. These are the basic principles of Article 66 of the UUJN in the case of calling a Notary to the judicial, investigative, prosecutorial or judicial process with the approval of the Supervisory Board.Keywords:  Regional Supervisory Board,Supervision,Notary Position

scholarly journals PERLINDUNGAN HUKUM BAGI KREDITUR PEMEGANG HAK TANGGUNGAN TERHADAP SENGKETA AGUNAN YANG MENGAKIBATKAN BATALNYA PERJANJIAN KREDIT

2018 ◽  
Vol 1 (1) ◽  
pp. 26
Author(s):  
Fransisca Kusuma Aryani ◽  
Gunawan Djajaputra
Keyword(s):  
Legal Protection ◽  
Civil Code ◽  
The Other ◽  
Third Party ◽  
District Court ◽  
Good People ◽  
Warning Letter ◽  
The Law ◽  
Debt Repayment ◽  
Credit Agreement

The process of granting credit with the guarantee of Mortgage Rights experienced many obstacles, one of which is the cancellation of credit agreement due to a lawsuit from a third party. Examples of problems that will researchers take is a case between PT PNM as creditor and Erlinawati as a debtor. Erlinawati applied for credit to PT PNM and pledged SHM No. 1716 without her husband's agreement, Bagus Satriya. As time went by, Erlinawati could not fulfill its obligations as stipulated in the credit agreement, and then PT PNM sent a warning letter to Erlinawati. Good people who know the land and buildings of his property are used as a direct guarantee to file a lawsuit to the Blora District Court. The Blora District Court ruled that credit agreements and Deed of Mortgage Rights (APHT) are invalid and null and void. So far the legal protection for debtors who have sued from the other party on the guarantee given by the creditor has not been regulated specially in the legislation. The law only regulates bad debts and debt repayment through the execution process stipulated in the Law on Banking and Insurance Rights Act. Legal protection that creditor can use when obtaining a lawsuit from a third party is by using the general guarantees provided for in Articles 1131 and 1132 of the Civil Code.

Analisis Yuridis Perlindungan Hukum Perjanjian Dibawah Tangan Berdasarkan Putusan Pengadilan No.161/pdt.g/2011/pn-mdn. (Studi Kasus PT Merim Property dan Cv Rira Karya)

2020 ◽  
Vol 20 (1) ◽  
pp. 92-104
Author(s):  
Weriyus Heston Marbun
Keyword(s):  
Legal Protection ◽  
Civil Code ◽  
Contract Work ◽  
The Republic ◽  
Legal Consequences

Legal protection for every Indonesian citizens without exception can be found in the 1945 Constitution of the Republic of Indonesia (1945 Constitution), therefore every product produced by the legislature must always be able to provide guarantees of legal protection for all people, even they must be able to capture legal and justice aspirations that develop in society. In the Civil Code article 1233 states, "that an alliance can be formed because of agreement or law". One form of the agreement is an agreement under the hands in the form of contract work agreement.           The results of the case study of PT Merim Property and CV Rira Karya can be seen the weakness of an agreement under the hands, where CV Rira Karya as the plaintiff must have concrete evidence to prove the loss that they experienced in accordance with the agreement under the hands that they agreed upon, where such evidence cannot be given CV Rira Karya so that his lawsuit was rejected by the panel of judges. The legal consequences arising related to the use of an agreement under the hands in the event of a default are that the debtor is required to pay compensation, the creditor may request the cancellation of the agreement through the court and the creditor can request the fulfillment of the agreement, or fulfillment of the agreement accompanied by compensation and cancellation of the agreement with compensation. Keywords: Analysis, Legal Protection, Agreement, Under the Hands

PERLINDUNGAN HUKUM BAGI PARA PIHAK DALAM PERJANJIAN JUAL BELI TANAH LETTER C DI BAWAH TANGAN

2020 ◽  
Vol 8 (1) ◽  
pp. 144
Author(s):  
Socha Tcefortin Indera Sakti ◽  
Ambar Budhisulistyawati
Keyword(s):  
Legal Protection ◽  
Civil Code ◽  
Legal Rights ◽  
Legal Certainty ◽  
Legal Relationship ◽  
Legal Consequences ◽  
Made In ◽  
Laws And Regulations

<p>Abstract <br />This article aims to analyze and to understand the legal protection provided to the parties involved in under-hand agreement of the sale of Letter C land. The legal protection or all of the parties involved is contained in the agreement if the agreement specifically stated it in its clauses. The kegal protection outside of the agreement is contained in the laws and regulations in force which is Civil Code and Statute. The legal protection is an important aspect to ensure the fulfillment of a person’s legal rights. Furthermore, it also has other objective, which is to realize legal certainty, legal benefits, and justice for the parties. Legal protection can be preventive or repressive. The agreements made in the underhand sale of Letter C land forms a legal relationship between the two parties. The legal relations are relationships that result in legal consequences guaranteed by the laws and regulations. Every legal act that causes legal consequences must have legal protection, especially when there is a dispute between the parties. Dispute can occur after the under-hand agreement of the sale of Letter C Land was agreed, therefore legal protection is needed to provide solutions, certainty and clarity towards the resolution of the existing as well as the potential post-agreement disputes.<br />Keywords: Legal Protection; Under-hand Agreement; the sale of Land.</p><p>Abstrak<br />Artikel ini bertujuan untuk menganalisis dan mengetahui perlindungan hukum yang diberikan bagi para pihak yang terlibat didalam perjanjian dibawah tangan jual beli tanah Letter C. Perlindungan hukum yang diberikan bagi para pihak dalam perjanjian dibawah tangan terdapat di dalam perjanjian apabila dalam perjanjian disebutkan secara khusus dalam klausula-klausula yang telah disepakati dalam perjanjian. Perlindungan hukum yang terdapat diluar perjanjian yaitu dalam ketentuan peraturan perundang-undangan yang berlaku, yaitu KUHPerdata dan undang-undang. Perlindungan hukum merupakan suatu hal yang penting dalam menjamin terpenuhinya hak-hak hukum seseorang. Selain itu, perlindungan hukum yang diberikan memiliki tujuan lain yaitu guna mewujudkan kepastian hukum, kemanfaatan hukum, dan keadilan bagi para pihak. Perlindungan hukum yang diberikan dapat bersifat preventif (mencegah) maupun represif (memperbaiki). Perjanjian yang disepakati dalam perjanjian jual beli tanah Letter C dibawah tangan menimbulkan suatu hubungan hukum antara dua pihak yang membuatnya. Hubungan hukum sendiri merupakan hubungan yang menimbulkan akibat hukum yang dijamin oleh hukum atau undang-undang. Setiap perbuatan hukum yang menimbulkan akibat hukum harus memiliki perlindungan hukum, terlebih disaat terjadi suatu sengketa diantara para pihaknya. Sengketa pertanahan dapat timbul setelah disepakatinya perjanjian jual beli tanah Letter C, maka dari itu diperlukan perlindungan hokum untuk memberi solusi dan kepastian serta kejelasan akan penyelesaian sengketa yang ada atau yang berpotensi terjadi pasca perjanjian disepakati.<br />Kata Kunci: Perlindungan Hukum; Perjanjian di bawah tangan; Jual Beli Tanah.</p>

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