The Law-Making Functions of the Chinese Judiciary: Filling Holes in the Civil Law

2001 ◽  
pp. 241-270
Keyword(s):  
Civil Law ◽  
The Law ◽  
Law Making

scholarly journals SOME TRENDS IN DEVELOPMENT OF THE RUSSIAN CIVIL LAW PROCESS: IMPACT OF THE DOCTRINE AND FOREIGN PRACTICES

2015 ◽  
Vol 1 (5) ◽  
pp. 0-0
Author(s):  
Сергей Синицын ◽  
Sergey Sinitsyn
Keyword(s):  
Law Enforcement ◽  
Large Scale ◽  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Legal Regulations ◽  
Dynamic Development ◽  
The Law ◽  
Market Relations ◽  
Law Making

Codification of civil legislation is not a one-time random phenomenon in law; it is preceded by a long and meticulous work which in modern Russia pursues the aims of creating legislation sources’ system levels that ensure stable, large-scale and comprehensive legal regulation of market relations required by the turnover. Work on modernization and renewal of the Civil Code forms an integral part of codification, it shows dynamic development of the system of civil legislation. Objectives of the civil legislation codification in ХХ—ХХI involve elimination of contradictions in legislation, regulatory consolidation of new law doctrines, well-established in law enforcement practice, their structuring in the sources of civil legislation system, rationalization of legal regulations. Status of legislation and its evaluation predetermine the tendencies of its development in future, allow forecasting, designating possible risks and priorities of the law-making process.

Explaining Difference in the Quantity of Cases Heard by Courts of Last Resort

2019 ◽  
Vol 21 (2) ◽  
pp. 346-393 ◽  
Author(s):  
Bravo-Hurtado Pablo ◽  
Álvaro Bustos
Keyword(s):  
United States ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
Optimal Number ◽  
Supreme Courts ◽  
Lower Courts ◽  
The Law ◽  
Law Courts ◽  
Law Making

Abstract While civil law courts of last resort—e.g., cassation courts in France, Italy, and Chile—review up to 90% of appealed cases, common law courts of last resort—e.g., supreme courts of the United States, United Kingdom, and Canada—hear as few as 1% of the same petitions. In this study, we postulate that these different policies can be explained by a comparatively larger commitment from common law courts of last resort to judicial law-making rather than judicial uniformity. While courts require few hearings to update the law (in theory one decision is sufficient), they need a large number of hearings to maximize consistency in the lower courts’ interpretation of the law. We show that the optimal number of hearings increases with an increment in the courts’ concern for uniformity. We also show that if hearing costs are linear then the hearing policies of all courts can be classified in only two types. In addition, we predict important changes in hearing policies when the number of petitions increases. Finally, we find that hearing rates and reversal disutility operate as two ways in which a legal system can achieve a given level of judicial uniformity.

scholarly journals CIVIL AND TAX LAW: VICE VERSA

2020 ◽  
Vol 4 (1) ◽  
pp. 65-74
Author(s):  
Marina V. Sentsova (Karaseva)
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Social Relations ◽  
Civil Law ◽  
Tax Law ◽  
Tax Legislation ◽  
The Russian Federation ◽  
The Law ◽  
The Impact ◽  
Law Making

The subject of the research is the correlation of civil and tax law institutions in the scope of legal nature of such social relations. The purpose of the article is to confirm or refute the hypothesis that when qualifying civil legal relations with tax elements, the law enforcement officer should proceed from the priority of analysis of tax legislation over civil legislation. Methodology. Methods of analysis and synthesis are used. The scientific analysis focuses on decisions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, and courts of general jurisdiction. The main results and scope of their application. The influence of civil law on tax law is carried out at the level of law-making and law enforcement. We study the law enforcement paradigms that are relevant for law enforcement activities. The current tasks of tax law-making are emphasized. Establishing the influence of tax law institutions on civil law allows us to improve some civil law institutions, create a comprehensive theory of the relationship of these legal phenomena, see trends in their development and, of course, outline ways to develop tax legislation in the aspect of tax law autonomy. The legislator should strive for maximum unification of legal terminology in tax and civil legislation so that subjects of legal relations feel legally comfortable and easily construct civil transactions based on the predicted tax consequences. Subjects of civil legal relations, before entering into certain civil transactions, should already plan their tax consequences in advance focusing not only on civil legislation, but also on tax legislation, in particular, on the classification of transactions as investment or non-investment. Conclusions. The impact of tax law on civil law is multidimensional. At least, we can talk about the impact on the levels of law-making, law enforcement, and the use of civil law institutions. When qualifying civil legal relations with tax elements, the analysis of tax legislation in comparison with civil legislation has priority.

LEGAL SKETCH «THE SIGNIFICANCE OF THE LEGAL EXCUSES AND PROVERBS OF ANCIENT ROME AS A MEANS OF LEGAL PROPAGANDA ABOUT LEGAL KNOWLEDGE AND CULTURE»

2020 ◽  
Author(s):  
Alexander Kukharev ◽  
Alexander Rusu
Keyword(s):  
Digital Age ◽  
Legal Culture ◽  
Roman Law ◽  
Ancient Rome ◽  
Legal Knowledge ◽  
The Law ◽  
Law Making

This article discusses adaptation of the norms and ideals of Roman law to modern legal culture, the basis of Roman legal relations, which is the basis of modern law-making. It is important to learn how the culture of the law of ancient Rome influenced the formation of modern law of the digital age. The purpose of writing the paper was to highlight the influence of the legal culture of ancient Rome on modern reality.

Peran Notaris/PPAT Dalam Pembuatan Surat Kuasa Membebankan Hak Tanggungan Dalam Perjanjian Kredit Pemilikan Rumah (Studi Di Pt. Bank Tabungan Negara Tbk. Cabang Cirebon)

Jurnal Akta ◽  
2018 ◽  
Vol 5 (1) ◽  
pp. 1
Author(s):  
Yusup Sugiarto ◽  
Gunarto Gunarto
Keyword(s):  
Descriptive Analysis ◽  
Civil Law ◽  
Power Of Attorney ◽  
The Law ◽  
Credit Agreement

ABSTRAKKebutuhan akan lembaga notariat tidak terlepas dari kebutuhan akan perlunya pembuktian tertulis dalam lapangan hukum perdata. Mengingat keadaan ini maka notaris tidak saja berperan sebagai orang yang membuat alat bukti autentik namun juga sebagai penemu hukum. Notaris dalam profesinya sesungguhnya merupakan instansi yang dengan akta-aktanya menimbulkan alat-alat pembuktian tertulis dengan mempunyai sifat autentik. Penelitian ini bertujuan untuk menganalisis pelaksanaan penandatanganan akta notaris dalam pembuatan SKMHT dan akibat hukum penandatanganan akta SKMHT oleh penerima kuasa tidak di hadapan notaris dalam perjanjian kredit pemilikan rumah. Metode yang digunakan dalam penelitian ini adalah pendekatan yuridis normatif, sedangkan sifat dari penelitiannya sendiri bersifat deskriptif analisis. Penandatanganan akta notaris oleh penerima kuasa dalam akta SKMHT dimungkinkan untuk dilakukan tidak di hadapan notaris, karena lazimnya suatu akta SKMHT ada kaitannya dengan akta perjanjian kredit yang telah dibuat terlebih dahulu oleh para pihak. Akibat hukumnya penerima kuasa dalam akta SKMHT menjadi terikat untuk mematuhi ketentuan-ketentuan yang ada dalam SKMHT.Kata kunci: notaris, akta, perdata, kredit, perjanjian. ABSTRACTThe need for notarial institutions is inseparable from the need for the necessity of verification in the field of civil law. In view of this situation the notary not only plays the role of the person who makes authentic evidence but also the inventor of the law. Notary in his profession is in fact an institution which with its deeds evokes written proof means with authentic nature. This study aims to analyse the execution of the signing of notary deed in the making of SKMHT and the effect of the signing of SKMHT deed by the power of attorney not before the notary in the mortgage agreement. The method used in this study is the normative juridical approach, while the nature of the research itself is descriptive analysis. The signing of notarial deed by the power of attorney in the deed of SKMHT is possible to be done not in the presence of a notary, because usually a deed of SKMHT is related to the credit agreement which has been made beforehand by the parties. As a result of the law the power of attorney in the SKMHT deed becomes bound to comply with the provisions contained in SKMHT.Keywords: notary, deed, civil, credit, agreement.

“Judicial Law-making”: Pro et Contra

2020 ◽  
Vol 2 (1) ◽  
pp. 7-35
Author(s):  
V. V. Ershov ◽  
Keyword(s):  
Judicial Process ◽  
Social Phenomena ◽  
Scientific Discussion ◽  
Ex Post ◽  
New Concepts ◽  
Judicial Lawmaking ◽  
The Law ◽  
Legal Understanding ◽  
Developing System ◽  
Law Making

Introduction. As a result of the application in scientific research of descriptive and objectiveteleological methods of studying legal phenomena, a number of foreign and Russian scientists often describe only truly objectively existing legal phenomena, including “judicial law-making”. Theoretical Basis. Methods. From the position of scientifically grounded concept of integrative legal understanding, according to which the system of law first of all synthesizes only the principles and norms of law contained in a single, multi-level and developing system of forms of national and international law, implemented in the state, the article concludes that it is possible to highlight two types of “judicial law-making” in the special literature: “moderate” and “radical” types of “judicial law-making”. Results. “Moderate judicial law-making” is allowed only outside the law, its results are not binding on other courts, as the “norm” created by the court is only applicable ex post, only to a particular dispute and is not binding on other courts. In the opinion of the author of the article, this result of “moderate judicial law-making” is theoretically more reasonable to be considered as a kind of wrong – as “court positions” obligatory only for participants of individual judicial process, developed in the process of consideration and resolution of individual dispute as a result of interpretation of principles and norms of law. Discussion and Conclusion. Researchers – supporters of the “radical” type of “judicial lawmaking” allow the development of “judicial precedents of law” “through the law, beyond and against the law” (contra legem).It seems to the author that this type of “judicial lawmaking” is based on the scientific discussion concept of integrative legal understanding, according to which the heterogeneous social phenomena – right and wrong – are synthesized in the unified system of law (for example, law and individual judicial acts, including those containing specific positions of the court).New concepts and their definitions have been introduced into scientific circulation. The author concludes that the “radical” kind of “judicial law-making” is theoretically debatable, and practically counterproductive.

Parliamentarism and the Legislative Branch

2017 ◽  
Author(s):  
András Sajó ◽  
Renáta Uitz
Keyword(s):  
Decision Making ◽  
Political Parties ◽  
Legislative Branch ◽  
Effective Decision ◽  
The Law ◽  
Internal Operations ◽  
Effective Decision Making ◽  
The Relationship ◽  
Law Making

This chapter examines the relationship between parliamentarism and the legislative branch. It explores the evolution of the legislative branch, leading to disillusionment with the rationalized law-making factory, a venture run by political parties beyond the reach of constitutional rules. The rise of democratically bred party rule is positioned between the forces favouring free debate versus effective decision-making in the legislature. The chapter analyses the institutional make-up and internal operations of the legislature, the role of the opposition in the legislative assembly, and explores the benefits of bicameralism for boosting the powers of the legislative branch. Finally, it looks at the law-making process and its outsourcing via delegating legislative powers to the executive.

Gender and judging at the International Criminal Court: Lessons from ‘feminist judgment projects’

2020 ◽  
pp. 1-18
Author(s):  
Rosemary Grey ◽  
Kcasey McLoughlin ◽  
Louise Chappell
Keyword(s):  
International Criminal Court ◽  
Final Section ◽  
International Criminal ◽  
Criminal Court ◽  
Gender Justice ◽  
Gender Analysis ◽  
Male And Female ◽  
The Law ◽  
And Shifts ◽  
Law Making

Abstract To date, analyses of gender justice at the International Criminal Court (ICC) have focused primarily on critiques of, and shifts within, the Office of the Prosecutor. This article takes a different approach by focusing on the ICC’s judiciary. We being by arguing that state parties can and should do more than electing a balance of male and female judges – they can also ensure gender-sensitivity on the Bench by supporting candidates with expertise in gender analysis, and by backing judges who bring a feminist approach to their work once elected. Next, we explain the concept of the ‘feminist judgment-writing’ and suggest that this method offers a useful framework for embedding gender-sensitive judging at the ICC. To illustrate this argument, we highlight opportunities for ICC judges to engage in gender-sensitive judging in relation to interpreting the law, making findings of fact, and deciding procedural questions. The final section of the article discusses how best to institutionalize the practice of gender-sensitive judging at the ICC.

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