scholarly journals Consensus Ad Idem: A Plea for Objectivity in Telephonic Contracts

2017 ◽  
Vol 6 (1) ◽  
pp. 41-56
Author(s):  
D Ganesh Kumar ◽  
Akshay Douglas Gudinho
Keyword(s):  
Freedom Of Speech ◽  
Contract Law ◽  
Fundamental Rights ◽  
Objective Analysis ◽  
Due Diligence ◽  
Legal Certainty ◽  
The Right To Privacy ◽  
The Subject ◽  
The Right ◽  
Made In

Consensus Ad Idem, legally defined as „meeting of minds‟, at the time of the formation of a contract, warrants a cardinal jurisprudential question which transcends its mere literal meaning. In Indian Contract Law, the trend has followed the test of objectivity, whereby it is not the actual intent of the party or parties that enter into the contract that is the subject of judicial evaluation, but it is what a reasonable man would deliberate in the peculiar circumstances of the case. However, the evaluation of telephonic conversations merit intrinsic jurisprudential insight. While applying the objective test, the questions that arise are - is there legal certainty of assent to a contract over telephonic conversations i.e. whether there is free consent. Do the parties have the capacity to contract over telephone? What are the liabilities of the telephone operator and his legal bond to the contract between two or more contracting parties? Does it amount to violation of the fundamental rights to freedom of speech and expression and the right to privacy? The authors attempt to provide an objective analysis of communication in contracts over telephonic means and the constitutional environment embedded therein. To this end, a plea for due diligence prior to the formation of telephonic contracts shall be made in order to bring objectivity to the judicial evaluation of telephonic contracts.

scholarly journals Reasonable time frame in bankruptcy proceedings: Analysis of cases from the judicial practice of the Commercial Court in Niš

2021 ◽  
Vol 60 (90) ◽  
pp. 97-118
Author(s):  
Aleksandar Mojašević ◽  
Aleksandar Jovanović
Keyword(s):  
Case Law ◽  
Time Frame ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Reasonable Time ◽  
Judicial Practice ◽  
Reasonable Time Frame ◽  
The Subject ◽  
The Republic ◽  
The Right

The Act on the Protection of the Right to a Trial within a Reasonable Time, which took effect in 2016, has created the conditions in our legal system for the protection of the right to a trial within a reasonable time, as one of the fundamental rights guaranteed by the Constitution of the Republic of Serbia and related international documents. Although the legislator does not explicitly provide for the application of this Act in the context of bankruptcy proceedings, it has been used in judicial practice as a mean for the bankruptcy creditors to obtain just satisfaction in cases involving lengthy bankruptcy proceedings and a violation of the right to a fair trial within a reasonable time. The subject matter of analysis in this paper is the right to a trial within a reasonable time in bankruptcy cases. For that purpose, the authors examine the case law of the Commercial Court in Niš in the period from the beginning of 2016 to the end of 2019, particularly focusing on the bankruptcy cases in which complaints (objections) were filed for the protection of the right to a fair trial within a reasonable time. The aim of the research is to examine whether the objection, as an initial act, is a suitable instrument for increasing the efficiency of the bankruptcy proceeding, or whether it only serves to satisfy the interests of creditors. The authors have also examined whether this remedy affects the overall costs and duration of the bankruptcy proceeding. The main finding is that there is an increasing number of objections in the Commercial Court in Niš, which still does not affect the length and costs of bankruptcy. This trend is not only the result of inactivity of the court and the complexity of certain cases but also of numerous external factors, the most prominent of which is the work of some state bodies.

On the issue of fiscal commissions

2021 ◽  
pp. 12-18
Author(s):  
Olga Rusakova
Keyword(s):  
Preventive Measures ◽  
Tax Administration ◽  
Legal Certainty ◽  
Tax Base ◽  
Normative Framework ◽  
Tax Legislation ◽  
The Future ◽  
The Subject ◽  
The Right ◽  
Mutual Agreement

The subject of this research is the recently emerged form of tax administration in form of fiscal commissions on legalization of the tax base. Currently, taxpayers are summoned to the tax inspectorate by notification to provide clarification on transactions with problem counterparties. The author examines the existing normative framework for conducting such fiscal commissions, and concludes on the lack of legal certainty of such measures. Special attention is given to the typical mistakes of tax authorities in registration of the taxpayer’s summons to the commissions or in holding such commissions. The main conclusions lies in the theses on the lack of legal certainty of fiscal commissions, which requires making amendments to the current tax legislation. Along with the proposal supported by the author to establish the right of tax authorities to send information notice (reasoned opinion) to the taxpayers, the author believes that such form of preventive measures by the tax authority would be maintained in the future, which in turn requires to legislatively establish the actions of the taxpayer in response to the received reasoned proposal, similar to such mutual agreement procedures present in tax monitoring.

Freedom of Speech for Public Officials vs. the Political Parties' Right to Equal Opportunity: The German Constitutional Court's Recent Rulings Involving the NPD and the AfD

2017 ◽  
Vol 18 (1) ◽  
pp. 189-212
Author(s):  
Thomas Kliegel
Keyword(s):  
Political Parties ◽  
Equal Opportunity ◽  
Freedom Of Speech ◽  
Fundamental Rights ◽  
Public Official ◽  
Public Officials ◽  
The Public ◽  
Election Process ◽  
Political Function ◽  
The Right

Public Officials are bound by the fundamental rights when they are acting in their political function. Acting as such they cannot, in general, claim the freedom of speech for themselves as normal citizens do. If they give statements regarding other political parties they have to abide by the principle of neutrality. Statements that could be understood as negative will be — especially if they are made during the election process — a violation of the right of political parties to equal opportunity, which is an indispensable element of the free and open process of forming popular opinion. The delineation of whether a public official is appearing as such, as a “party politician” or “private individual” can, however, be difficult and it is the obligation of the public official to leave no doubt about the role he is exercising. Different from any other public official the Federal President needs not comply with the principle of neutrality. He has a broad margin of assessment and only transgresses his legal boundaries if he violates the integrative task of his office in an arbitrary manner.

scholarly journals Aantekeninge oor die Wet op Huurbehuising 50 van 1999

2017 ◽  
Vol 5 (1) ◽  
pp. 1 ◽  
Author(s):  
SPLR De la Harpe
Keyword(s):  
Rental Housing ◽  
Fundamental Rights ◽  
Rent Control ◽  
Lower Income ◽  
The Right To Privacy ◽  
Income Groups ◽  
Bona Fide ◽  
The Right ◽  
To Receive ◽  
The Relationship

On 1 August 2000 the Rental Housing Act 50 of 1999 came into operation. This is a typical example of an act which attempts to, in conjunction with the private sector, provide for third generation fundamental rights. This note concentrates on the influence of the act on the contractual aspects of the rental agreement.Sections 4 and 5 have a direct influence on the relationship between the landlord and tenant. In particular matters like unfair discrimination and the right to privacy are addressed. Certain rights are afforded to third parties namely the members of the tenant’s household and bona fide visitors.Important aspects are inter alia the right to have the agreement reduced to writing and the provisions which are deemed to be contained in the agreement. This includes, amongst others, the right to receive receipts, certain information, payment of a deposit, interest on the deposit and the inspection of the property.The conclusion is made that the act is a welcome replacement of the Rent Control Act. There are however certain practicalities which could jeopardise the success of the act.  It is unlikely that the provinces have the capacity to implement the act. The protection provided by the act to the lower income groups may not materialise as they often do not know their rights and would often rather suffer the bad living conditions than risking the possibility of loosing it altogether by complaining.

scholarly journals Prawo do prywatności osób prawnych podczas kontroli przedsiębiorstwa dokonywanej przez Komisję Europejską

2017 ◽  
Vol 107 ◽  
pp. 11-25
Author(s):  
Marta De Bazelaire De Ruppierre
Keyword(s):  
Competition Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Right ◽  
The Eu

THE RIGHT TO PRIVACY OF LEGAL PERSONS DURING THE EUROPEAN COMMISSION’S INSPECTIONSThe paper aims to discuss the application of the Charter of Fundamental Rights by the EU institutions in competition law proceedings, showing as an example the respect for the right to privacy of undertakings during the inspections carried out by the European Commission. Although exercising the control powers of the Commission potentially collides with a number of fundamental rights expressed in the Charter, it is the analysis of Art. 7 CFR that allows to depict the evolution of the EU’s approach to privacy of legal persons, showing the accompanying judicial dialogue, or lack thereof, between the European Court of Human Rights and the Court of Justice of the EU. The article short-defines the dawn raids, examines the application of Article 7 CFR to legal persons, highlighting the aspects of protection of domicile and secrecy of correspondence, compares the standards provided by ECHR and EU law, pondering also on how the CFR guarantees can be provided and effectively controlled. It also reflects on the issue whether the Court of Justice has a forerunner role in promoting fundamental rights of undertakings in matters of competition law.

scholarly journals The Right to Be and Become: Black Home-Educators as Child Privacy Protectors

2020 ◽  
pp. 21
Author(s):  
Najarian Peters
Keyword(s):  
Racial Discrimination ◽  
Black People ◽  
Physical Property ◽  
Black Children ◽  
Fundamental Rights ◽  
Privacy Rights ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
Home Educators ◽  
The Right

The right to privacy is one of the most fundamental rights in American jurisprudence. In 1890, Samuel D. Warren and Louis D. Brandeis conceptualized the right to privacy as the right to be let alone and inspired privacy jurisprudence that tracked their initial description. Warren and Brandeis conceptualized further that this right was not exclusively meant to protect one’s body or physical property. Privacy rights were protective of “the products and the processes of the mind” and the “inviolate personality.” Privacy was further understood to protect the ability to “live one’s life as one chooses, free from assault, intrusion or invasion except as can be justified by the clear needs of community living under a government of law.” Case law supported and extended their theorization by recognizing that privacy is essentially bound up in an individual’s ability to live a self-authored and self-curated life without unnecessary intrusions and distractions. Hence, privacy may be viewed as the right of individuals to be and become themselves. This right is well-established; however, scholars have vastly undertheorized the right to privacy as it intersects with racial discrimination and childhood. Specifically, the ways in which racial discrimination strips Black people—and therefore Black children—of privacy rights and protections, and the ways in which Black people reclaim and reshape those rights and protections remain a dynamic and fertile space, ripe for exploration yet unacknowledged by privacy law scholars. The most vulnerable members of the Black population, children, rely on their parents to protect their rights until they are capable of doing so themselves. Still, the American education system exposes Black children to racial discrimination that results in life-long injuries ranging from the psychological harms of daily racial micro-aggressions and assaults, to disproportionate exclusionary discipline and juvenile incarceration. One response to these ongoing and often traumatic incursions is a growing number of Black parents have decided to remove their children from traditional school settings. Instead, these parents provide their children with home-education in order to protect their children’s right to be and become in childhood.

Special investigative measures: Comparison of the Serbian Criminal Procedure Code with the European Court of Human Rights Standards

2021 ◽  
Vol 26 (1) ◽  
pp. 34-60
Author(s):  
Veljko Turanjanin
Keyword(s):  
Criminal Procedure ◽  
Fundamental Rights ◽  
Main Question ◽  
Right To Privacy ◽  
Special Investigation ◽  
The Right To Privacy ◽  
European Court ◽  
Criminal Procedure Law ◽  
The Right ◽  
Human Rights Standards

This paper is focused on several important issues that deal with special investigation measures. The main perspective of the analysis is based on the ECtHR case law on this issue. Two issues are from primary interests: secret monitoring of communication and undercover investigator. Intensive ICT development enables various modern techniques and methods of crime investigation but also results in some new types of crime that could be committed using ICT. Expansion of the fundamental rights and their protection, especially in Europe, raised global awareness of the right to privacy and the need to protect it. Having that in mind, it seems that the main question that should be answered by legislator is: Where is the borderline between the right to privacy and the public interest to investigate or prevent crime and collect evidence? The undercover investigator falls under Article 6 of the Convention and there are different rules on the admissibility of such evidence. Serbian Criminal Procedure Law on some points is in line with ECtHR standards, but some very important provisions, as well as practice, are not.

scholarly journals The Right to Privacy—A Fundamental Right in Search of Its Identity: Uncovering the CJEU’s Flawed Concept of the Right to Privacy

2019 ◽  
Vol 20 (05) ◽  
pp. 722-733 ◽  
Author(s):  
Valentin M. Pfisterer
Keyword(s):  
Data Protection ◽  
Personal Data ◽  
Fundamental Rights ◽  
The Political ◽  
Strong Impact ◽  
Right To Privacy ◽  
Eu Member States ◽  
The Right To Privacy ◽  
The Right ◽  
The Eu

AbstractIn recent years, the CJEU has impressively brought to bear the protection of the fundamental rights to privacy and protection of personal data as contained in the CFREU. The Court’s decisions in the Digital Rights, Schrems, Tele2, and PNR cases have reshaped the political and legal landscape in Europe and beyond. By restricting the powers of the governments of EU Member States and annulling legislative acts enacted by the EU legislator, the decisions had, and continue to have, effects well beyond the respective individual cases. Despite their strong impact on privacy and data protection across Europe, however, these landmark decisions reveal a number of flaws and inconsistencies in the conceptualization of the rights to privacy and protection of personal data as endorsed and interpreted by the CJEU. This Article identifies and discusses some of the shortcomings revealed in the recent CJEU privacy and data protection landmark decisions and proposes to the CJEU a strategy aimed at resolving these shortcomings going forward.

scholarly journals Conceptualising the right to data protection in an era of Big Data

2017 ◽  
Vol 4 (1) ◽  
pp. 205395171668699 ◽  
Author(s):  
Yvonne McDermott
Keyword(s):  
Big Data ◽  
Data Protection ◽  
Legal Order ◽  
Fundamental Rights ◽  
New Right ◽  
The European Union ◽  
The Right To Privacy ◽  
Charter Of Fundamental Rights ◽  
The Right ◽  
First Time

In 2009, with the enactment of the Lisbon Treaty, the Charter of Fundamental Rights of the European Union entered into force. Under Article 8 of the Charter, for the first time, a stand-alone fundamental right to data protection was declared. The creation of this right, standing as a distinct right to the right to privacy, is undoubtedly significant, and it is unique to the European legal order, being absent from other international human rights instruments. This commentary examines the parameters of this new right to data protection, asking what are the principles underpinning the right. It argues that the right reflects some key values inherent in the European legal order, namely: privacy, transparency, autonomy and nondiscrimination. It also analyses some of the challenges in implementing this right in an era of ubiquitous veillance practices and Big Data.

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