Compensatory Mechanism for Miscarriage of Justice in Cases of Prolonged Delay: The Case of India

2021 ◽  
Vol 8 (2) ◽  
pp. 194-204
Author(s):  
Abhinav Mishra
Keyword(s):  
Legal System ◽  
Legal Framework ◽  
The State ◽  
Compensatory Mechanism ◽  
Vast Number ◽  
Legislative Action ◽  
Legal Remedies ◽  
Grey Area ◽  
Prolonged Delay ◽  
Miscarriage Of Justice

There have been several studies on the issue of justice delayed, but no rigid step has been taken in lieu of the victims who suffer as a result of such dawdling processes. Despite the existence of a vast number of provisions in our current legal system, current legal remedies do tend to create an ex gratia obligation but not a statutory obligation for the state to compensate the victims of miscarriage of justice. There is a persistent need for an explicit and detailed law on this subject. The idea underlying this research is to portray the need for a rigid compensatory mechanism for prolonged delays in judicial processes and decisions. Thereby construing a need for strong legislative action towards this issue and reflect upon the grey area in Indian Legal Framework.

The Legal Framework for Foundations in the Habsburg Monarchy from 1750 to 1918

2017 ◽  
Vol 1 (2) ◽  
pp. 154-172
Author(s):  
Gabriele Schneider
Keyword(s):  
Public Good ◽  
Legal System ◽  
Legal Framework ◽  
The State ◽  
Habsburg Monarchy ◽  
The Public ◽  
Regulation And Supervision ◽  
Role Of The State ◽  
The Law

Foundations, as permanent funds established by a certain legal act, can serve manifold purposes, but often pursue charitable goals. As such, they play an important role for the public good. Therefore, states always had an interest in fostering foundations by providing a pertinent legal framework. In Austria, this topic has not yet been the focus of scholarship. Through this study some light is shed on the implementation of the law on foundations in the Habsburg Monarchy. It focuses on the role of the state and its legal system regarding the regulation and supervision of foundations from 1750 to 1918. This period is characterized by the sovereigns’ endeavor to regulate the position of foundations via extensive legislation. In particular, a system of oversight for foundations was created in order to guarantee the attainment of their charitable goals. In fact, this system prevailed until the end of the 20thcentury.

scholarly journals Properties of constitutional principles

2021 ◽  
Vol 5 (3) ◽  
pp. 126-136
Author(s):  
S. A. Mosin
Keyword(s):  
Law Enforcement ◽  
Legal System ◽  
Legal Framework ◽  
The State ◽  
Basic Rule ◽  
Constitutional Principle ◽  
The Law ◽  
Theory Of Law ◽  
The Stability ◽  
The Trinity

The subject. The article is devoted to the study of the trinity of properties of constitutional principles.The purpose of the article is to confirm the hypothesis that constitutional principles, often perceived by researchers and law enforcement officials as abstract norms with declarative content, are in fact full-fledged legal institutions that are endowed with all the necessary properties to achieve constitutional goals. In this regard, the article analyzes the property of axiomaticity, the property of presumptivity and the property of fictitiousness of constitutional principles.The methodology. The systemic-structural, comparative, formal-legal and formal-logical methods made it possible to identify and characterize the properties of constitutional principles, such as axiomaticity, presumptivity and fictitiousness. The use of these methods in their combination predetermined the appeal not only to topical problems of constitutional law, but also to issues of the theory of law, as well as other branches of law, which made it possible to most objectively and comprehensively approach the study of the properties of constitutional principles.The main results of the research. The trinity of the properties of the constitutional principle lies in the fact that the constitutional principle formulates the basic rule and determines the direction of development of the legal system and thereby has the property of axiomaticity. At the same time, the constitutional principle has the property of presumptivity due to the duty of the law enforcement officer to proceed from the assumption of compliance with the provisions of such a principle by all subjects of legal relations. Thereby constitutional principle ensures the necessary stability of the legal system of the state. At the same time, in order to achieve full-fledged stability of the legal system, along with the assumption that the subjects of legal relations comply with the provisions of the constitutional principles, it should be possible to monitor such compliance. In the absence of prior control over compliance with the provisions of the law, the solution is the application of legal presumptions. In this regard, within the framework of the presumptive property of constitutional principles, constitutional presumptions are inextricably linked with the corresponding constitutional principles. In turn, having the property of fictitiousness, the constitutional principle allows to interpret the provisions that make up such a constitutional principle and, as a result, create the necessary regulatory legal framework.Conclusions. Constitutional principles are the driving force of the legal system. They fill all legal relations without exception with legal meaning and content and have a special meaning due to their irreplaceability and the obligation to strictly observe them. In turn, the trinity of properties of the constitutional principles reflects their legal essence as fundamental normative provisions that determine the generally binding basic rules and directions of the development of the legal system, ensure the stability of the legal system of the state, and also have the possibility of timely development and adaptation to the changing legal reality.

‘Plural Sharīʿah’. A Liberal Interpretation of the Sharīʿah Constitutional Clause of the 2014 Egyptian Constitution

2017 ◽  
Vol 31 (1) ◽  
pp. 74-88
Author(s):  
Giancarlo Anello
Keyword(s):  
Legal System ◽  
Legal Framework ◽  
Civil Code ◽  
Arab Countries ◽  
The State ◽  
Constitutional Court ◽  
Islamic Religion

This article addresses the Egyptian Constitution issued in 2014 (dustūr ǧumhūriyyah miṣr al-ʿarabiyyah). Article 2 declares that Islam is the religion of the State and that the Sharīʿah is the main source of legislation. The aim of the author is to interpret this provision considering the role that the Islamic religion plays in the cultural and legal framework of Arab countries, notably in Egypt. Furthermore, this article tries to develop a pluralistic interpretation of the norm, taking into account some foundational aspects of the Egyptian legal system including the Civil Code of 1948, the particular tradition of Arab Constitutionalism, and the former jurisprudence of the Supreme Constitutional Court.

scholarly journals Application of Administrative Law in the Time of Reforms in the Light of the Scope of Judicial Review in Hungary

2020 ◽  
Vol 29 (3) ◽  
pp. 101
Author(s):  
István Hoffman
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Judicial Review ◽  
Paradigm Shift ◽  
Administrative Law ◽  
The State ◽  
The Rule Of Law ◽  
Legal Remedies ◽  
Review Model ◽  
The Impact

<p class="Default">The Hungarian legal system and especially the administrative law is in the state of permanent change. This constantly transforming environment is a challenge for the rule of law. Every significant field of administrative law is impacted by these changes – even the judicial review model of the administrative decisions. The author analyzes the impact of these changes – especially from the last three years – on the application of administrative law. The issues raised in the article are focused on the transformation of the procedural rules, in particular on the impact of the new Act I of 2017 – Code of Administrative Court Procedure and its amendment in 2019. Two major institutions are analyzed further. First, the work analyzes the impact of the reform on the system of legal remedies in the administrative law, i.e. the reduction of the intra-administration remedies, the administrative appeal. Secondly, the extent of the judicial review was examined, in particular debates, codifications and amendments of the cassation and reformatory jurisdiction of the courts. The courts are currently the major interpreter of administrative law, whose change can be interpreted as a paradigm shift of the approach of the application of administrative law.</p>

scholarly journals Centralization and Reduced Financial Resources: A Worrying Picture for Hungarian Municipalities

2021 ◽  
Vol 19 (1) ◽  
pp. 261-280
Author(s):  
Judit Siket
Keyword(s):  
Legal System ◽  
Objective Assessment ◽  
Legal Framework ◽  
The State ◽  
Financial Resources ◽  
Constitutional Court ◽  
Local Democracy ◽  
State Of Emergency ◽  
Initial Assumption ◽  
The Relationship

The article provides an overview of governmental regulations affecting the operation and economic situation of local self-governments in Hungary during the pandemic crisis. The research covers the period from the declaration of the state of emergency in March 2020 until the end of the year. The study aims to explore the implementation of the European Charter of Local Self-Government’s special provisions related to local democracy concerns in times of crisis. The article analyses the relationship between the pandemic and governmental measures that affected the economic position of local self-governments. It does not provide an objective assessment, but rather presents and analyses the relevant resources. The article is primarily based on the review of the legal framework and the relevant Constitutional Court’s decisions. The analysis demonstrates that the Constitutional Court did not or only partially defended the legal interests of local self-governments. The governmental measures ‘stood the test of constitutionality’. The study confirms the initial assumption that the excessive centralization process was significantly reinforced, while the position of local self-governments in the  state organs system weakened. However, some measures cause concern as they highlight deeper problems in the Hungarian legal system, irrespective of the pandemic.

scholarly journals Enforcement of civil claims during state of emergency declared due to the Covid-19 crisis

2021 ◽  
Vol 59 (3) ◽  
pp. 285-304
Author(s):  
Nikola Bodiroga
Keyword(s):  
Legal Framework ◽  
The State ◽  
State Of Emergency ◽  
Public Enforcement ◽  
Government Regulations ◽  
Legal Remedies ◽  
Court Proceedings

The purpose of this paper was to tackle conducting enforcement of civil claims in Serbia during state of emergency that has been declared because of coronavirus pandemic. Based on its constitutional powers in state of emergency Serbian Government has passed special regulation dealing with deadlines for initiating court proceedings and for filing legal remedies in the course of court proceedings. This regulation has also been applied to procedure for enforcement of civil claims. Ministry of Justice, High Judicial Council and Chamber of Public Enforcement Agents have issued various recommendations, conclusions and directives dealing with actions of courts and public enforcement agents. Since only the Serbian Government has undisputed constitutional authority to pass regulations in the state of emergency, all questions related to conducting civil enforcement had to be dealt by government regulations. In this way would have clear legal framework for enforcement of civil claims during state of emergency.

scholarly journals Special forms of criminal property confiscation

2012 ◽  
pp. 625-639
Author(s):  
Oliver Lajic
Keyword(s):  
Significant Influence ◽  
Legal System ◽  
Organized Crime ◽  
Legal Framework ◽  
The State ◽  
Practical Implementation ◽  
Negative Effects ◽  
Local Law ◽  
National Models ◽  
Property Confiscation

Confiscation has existed in the domestic legal system for more than half a century. Considering limitations in practical implementation of this principle, espe?cially in the context of fighting against organized crime, the domestic legislator has recently offered new solutions for ?criminal property? confiscation in the form of criminal property confiscation procedure regulated by a special law. In this sense, this paper ana?lyzes the specific characteristics of organized crime phenomena, which require a different approach compared to the standard solutions in this area, criticizing such solutions, as well as the state of the local law and practice that preceded the adoption of the above mentioned regulation. The author concludes that criminal property confiscation may be considered as a desirable instrument in the fight against organized crime, whereby we should be careful in creating the related normative and legal framework, thus avoiding numerous negative effects that may challenge its creators. He also points out the international element that has significant influence in the design and practical implementation of the national models.

scholarly journals PENGATURAN KONSEP KEBAHARUAN PRODUK DALAM PENDAFTARAN DESAIN INDUSTRI PADA UNDANG-UNDANG NOMOR 31 TAHUN 2000 TENTANG DESAIN INDUSTRI

2021 ◽  
Vol 3 (2) ◽  
pp. 108-121
Author(s):  
Lis Julianti, Emmy Febriani Thalib, Made Indra Saputra
Keyword(s):  
Legal System ◽  
Industrial Design ◽  
Legal Protection ◽  
The State ◽  
Legal Research ◽  
Visual Appearance ◽  
Legal Remedies ◽  
Article 9 ◽  
Significant Change ◽  
The Right

The judge's interpretation of the novelty principle, where the Panel of Judges in industrial design disputes argues that an industrial design can be said to be new if it has undergone a significant change in visual appearance, meaning that the visual appearance of the two objects is very different. If not, then the modification of a product cannot be called new so that it cannot be considered as an industrial design. The problems of this research include: how is the regulation of product novelty in the registration of industrial designs in Law Number 31 of 2000 and how is the legal protection of designers against the concept of novelty of products in the legal system in Indonesia. This type of research used in discussing the problem of this research is normative legal research. The conclusions of this research are as follows: Regulations on Product Newness in the Registration of Industrial Designs in Law Number 31 of 2000, among others, are in Article 9. And legal remedies are contained in Article 54 of Law Number 31 of 2000. Legal protection of designers against the concept of product novelty In the legal system in Indonesia, among others: Preventive protection: This protection is also closely related to the awareness of the owner of the industrial design rights themselves to register their industrial designs in order to get protection from the State. Regressive protection for holders of Industrial Design Rights is protection that is carried out directly to resolve or overcome an event or incident that has occurred in the form of a violation of the right to industrial design.   Penafsiran terhadap penerapan prinsip kebaruan (novelty) oleh hakim, dimana Majelis Hakim dalam sengketa desain industri berpendapat bahwa sebuah desain industri dapat dikatakan baru apabila telah mengalami perubahan penampakan visual yang signifikan, artinya penampakan visual kedua benda tersebut menjadi sangat berbeda. Bila tidak, maka modifikasi suatu produk tersebut tidak dapat disebut baru sehingga tidak dapat dianggap sebagai suatu desain industri. Permasalahan penelitian ini antara lain: bagaimanakah Pengaturan tentang Kebaharuan Produk dalam Pendaftaran Desain Industri pada Undang-Undang Nomor 31 Tahun 2000 dan bagaimanakah Perlindungan Hukum Pendesain terhadap konsep kebaharuan produk dalam sistem hukum di Indonesia. Jenis penelitian yang dipergunakan dalam membahas masalah penelitian ini adalah penelitian hukum normatif. Simpulan penelitian ini sebagai berikut: Pengaturan tentang Kebaharuan Produk dalam Pendaftaran Desain Industri pada Undang-Undang Nomor 31 Tahun 2000 antara lain dalam Pasal 9. Dan upaya hukum tertuang dalam Pasal 54 Undang-Undang Nomor 31 Tahun 2000.Perlindungan Hukum Pendesain terhadap konsep kebaharuan produk dalam sistem hukum di Indonesia antara lain :Perlindungan preventif : Perlindungan ini juga sangat berkaitan dengan kesadaran dari pemilik hak desain industri itu sendiri untuk mendaftarkan desain industrinya agar mendapatkan perlindungan dari Negara. Perlindungan refresif bagi pemegang Hak Desain Industri adalah perlindungan yang dilakukan secara langsung untuk menyelesaikan atau memanggulangi suatu peristiwa atau kejadian yang telah terjadi berupa pelanggaran hak atas desain industri.

scholarly journals Problems associated with the right of access in the context of the rights of the child in Latvia

2019 ◽  
Vol 68 ◽  
pp. 01017
Author(s):  
Inga Kudeikina
Keyword(s):  
Legal System ◽  
Personality Development ◽  
Legal Framework ◽  
The State ◽  
Public Power ◽  
Daily Lives ◽  
Rights Of The Child ◽  
The Status ◽  
The Right ◽  
Right Of Access

The child is a special right-holder. In the legal system, the status of the child is characterised by substantive rights that are typical only for children and by different means of exercising and safeguarding rights, i.e. the rights of a child are exercised by custodians acting on behalf of the child. It should be noted that the state, which uses the levers of public power, is also involved in the protection and safeguarding of the rights of the child in the most direct way. The right of access should be mentioned as a special right of the child. This comprises the right of a child to direct contacts with the child's parents and siblings. Communication forms an integral part of daily lives of people as social beings. Communication with parents is essential for a child undergoing the process of personality development. The right of access is an absolute right, which may be restricted only in cases specified in laws, provided that access is harmful to a child. Although the right of access is provided for by law, the existing legal framework is still deficient, which is confirmed by frequent disputes arising over the exercise of this right.

KONSTITUSI EKONOMI SYARIAH DI INDONESIA

2017 ◽  
Vol 11 (2) ◽  
pp. 161-74
Author(s):  
Syaugi Syaugi
Keyword(s):  
Economic System ◽  
Legal System ◽  
The State ◽  
Economic Life ◽  
Legal Concept ◽  
Economic Law ◽  
National Economic ◽  
Economic Ideology

    As a constitution, the Indonesian Constitution of 1945 regulates how the national economic system should be arranged and developed. In the perspective of constitution, the implementation of sharia economy does not mean the state directs a particular economic ideology. Philosophically, the ideals of Indonesian economic law is to initiate and prepare the legal concept of economic life. Shariah economy has a strong foundation both formally shariah and formallyconstitution. Formally shariah means the existence of shariah economy has a strong foundation in Indonesian legal system. Formally constitution means, in the context of the state, Shariah economy has a constitutional basis. The existence of laws relating to shariah economy shows that the Indonesian economic system givesa place to the shariah economy.

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