scholarly journals "Public Purpose or Public Interest" and Third Party Transfers

2017 ◽  
Vol 17 (1) ◽  
pp. 206
Author(s):  
Bradley Virgil Slade
Keyword(s):  
Economic Development ◽  
Public Interest ◽  
Land Reform ◽  
Third Parties ◽  
Third Party ◽  
Employment Opportunities ◽  
The Public ◽  
Public Purpose ◽  
The Difference ◽  
Broad Interpretation

 In this article the difference between public purpose and public interest in section 25(2) of the 1996 Constitution is considered. It is generally accepted that public purpose is a narrower category than public interest and that the distinction between public purpose and public interest does not make any practical difference. However, in this contribution it is suggested that the difference between public purpose and public interest makes no practical difference only in cases where expropriated property is used by the state for the realisation of a particular purpose. The difference between public purpose and public interest becomes more important when a particular expropriation also involves a third party transfer, since it indicates the level of scrutiny that the courts should apply in determining the lawfulness of the expropriation. When property is expropriated and transferred to a third party for the realisation of a public purpose, such as building and managing electricity plants, the lawfulness of the expropriation is not easily questioned. As such, the application of a rationality test to determine the legitimacy of the expropriation is generally easy to accept. However, this lenient approach cannot be as easily accepted where an expropriation and third party transfer takes place in the public interest. Examples of third party transfers in the public interest include land reform, slum clearance and economic development. In the examples of land reform and slum clearance the expropriation and third party transfer is usually authorised in legislation or, as is the case with land reform in South Africa, the 1996 Constitution. Because (as in the land reform example) the expropriation and third party transfer is authorised by the Constitution and regulated by legislation, the application of a rationality test to determine the legitimacy is acceptable. However, the application of a rationality test where property is expropriated and transferred to third parties for broader purposes such as economic development is problematic, especially if there is no specific legislation authorising such expropriation. Although an expropriation involving a third party transfer for purposes of economic development may well be in the public interest because it can lead to the creation of employment opportunities, it is argued that in the absence of specific legislation that authorises both the expropriation and the transfer of the property to third parties, the justification for the expropriation and the transfer is not entirely clear. Therefore, in the absence of a clear legislative scheme authorising the expropriation and transfer of property to third parties for the purpose of economic development, which can be said to fall within a very broad interpretation of the public interest requirement in section 25(2), the courts should apply a stricter scrutiny in evaluating its legitimacy.

IS THERE A FUTURE FOR STATE AGREEMENTS?

2005 ◽  
Vol 45 (1) ◽  
pp. 221
Author(s):  
A.G. Castledine ◽  
M. Lamattina
Keyword(s):  
State Government ◽  
Public Interest ◽  
State Regulation ◽  
Third Parties ◽  
The State ◽  
Third Party ◽  
Public Infrastructure ◽  
The Public ◽  
Political Risks ◽  
National Competition

State Agreements are agreements between private proponents and a State government which aim to facilitate the development of resources and processing projects and associated public infrastructure. State Agreements have been used extensively throughout Australia and each has been given varying levels of legislative recognition and effect, which in turn affects whether the rights and obligations arising under them have statutory or merely contractual effect. This ambiguity highlights the need to balance within State Agreements the private rights of the proponents with the public interest. The public interest critically involves third party rights to access infrastructure or services developed by proponents under the State Agreement. The introduction of National Competition Principles and regulatory regimes has affected the balance of these interests in favour of the public interest which has, in turn, led to a more stringent approach to State regulation under State Agreements. In particular, States are compelled through inter-governmental, federal and international competition and trade agreements to limit the extent to which it can negotiate its terms in a purely commercial way, embodying concessions in favour of proponents or preferences in favour of the State over other states or countries. Where a State Agreement expressly confers a benefit on third parties associated with access, third parties have successfully sought to enforce those benefits through the Courts, resulting in increased risks and costs for proponents that may not have been originally anticipated. Coupled with the political risks associated with changing governments and government policies, State Agreements, which have historically played a significant role in State development, are increasingly losing their ability to meet the commercial objectives of proponents.

scholarly journals TANGGUNGJAWAB BLU TRANSJAKARTA TERHADAP PIHAK KETIGA DALAM HAL TERJADI KECELAKAAN MENURUT UU NO. 22 TAHUN 2009 TENTANG LALU LINTAS DAN ANGKUTAN JALAN

2014 ◽  
Vol 14 (3) ◽  
Author(s):  
Elfrida R Gultom
Keyword(s):  
Public Service ◽  
Public Transport ◽  
Third Parties ◽  
Third Party ◽  
Service Agency ◽  
Transportation Services ◽  
The Public ◽  
The Third ◽  
The Third Party ◽  
Ticket Prices

The objective of Busway development is to provide transportation services faster, safer, comfortable, and affordable for people in Jakarta. Ticket prices are subsidized by the local government busway. Busway given special line, however could not be separated from the accident. In a carriage, in the event of an accident then apply provisions of Law No. 22 of 2009 on Traffic and Transportation. If there is a loss that hit the third party then setting responsibilities Public Service Agency TransJakarta Busway to third parties refer to the provisions of Article 194 paragraph (1) which determines that the public transport companies are not responsible for any losses suffered by third parties, unless the third party may prove that the loss is caused by the fault of public transport company. Under these provisions, if the third party wants to sue for damages, ketigalah party must prove the fault of the carrier, the claim is based on the basis of tort or on the basis of error set forth in Article 1365 of the Civil Code which stipulates that any action unlawfully harming others, require the person who carries the loss offset. Keywords: transport, the responsibility of the carrier, a third party, transport law

Administrative Contracts in Serbian Law – Specificities of the New Statutory Regime

2020 ◽  
Vol 45 (1) ◽  
pp. 1-35 ◽  
Author(s):  
Marija Karanikić Mirić ◽  
Tatjana Jevremović Petrović
Keyword(s):  
Public Interest ◽  
Case Law ◽  
Practical Experience ◽  
The Public ◽  
Administrative Procedure ◽  
Public Purpose ◽  
General Rules ◽  
Rules And Principles ◽  
Private Entity ◽  
Definition Of

The subject of this paper is the special legal regime for administrative contracts under the recently enacted Serbian Law on General Administrative Procedure of 2016. We offer a comprehensive analysis of the new statutory rules, and examine their relationship to the general rules and principles of Serbian contract law. In addition, we identify the main shortcomings of the new regime, especially in the context of the lack of any statutory, scholarly and judicial typology of administrative contracts in Serbia. Furthermore, we highlight the lack of references to the notions of public interest, public purpose or public needs in the statutory definition of administrative contracts. This is cause for concern, since only the need to protect the public interest could justify the new statutory provisions, which significantly improve the contractual position of a public body as a contracting party in relation to the position of a private entity as the other party in administrative contracts. There is as yet no case law pertaining to administrative contracts in Serbia. This is why we turn to practical experience in the Croatian legal system, which is sufficiently similar and historically connected to Serbia via a shared Yugoslav heritage. We also consider German and French legal models, since they traditionally serve as comparative points of reference for Serbian legal scholars, judges and law makers.

Biotechnology, State Economic Development, and Interest Politics: a Troublesome Trinity

1991 ◽  
Vol 9 (2) ◽  
pp. 245-250
Author(s):  
William P. Browne
Keyword(s):  
Economic Development ◽  
Comparative Analysis ◽  
Public Interest ◽  
Planning Process ◽  
Private Interest ◽  
Strategic Planning Process ◽  
The Public ◽  
Logical Reason ◽  
State Economic Development

When finally U.S. political archives are reviewed comprehensively and definitively, one confusing point will still linger unresolved: were the artisans of politics crafting policy in response to visions of a public or a private interest? Portz and Eisinger's comparative analysis of state economic development efforts, with hopes pegged on biotechnology, grapples with that distinction at least by implication. Their instructive article needs revisiting - - and their useful findings and conclusions need follow-up research — because there is logical reason to fear that the strategic planning process is no more or less directed toward the public interest than is private interest advocacy.

scholarly journals Sustainable development as an alternative goal of economic actors in modern society

2019 ◽  
Vol 80 (4) ◽  
pp. 452-455
Author(s):  
M. I. Lvova ◽  
T. V. Bakunova ◽  
T. A. Koltsova
Keyword(s):  
Sustainable Development ◽  
Economic Development ◽  
Public Interest ◽  
Technology Development ◽  
Modern Society ◽  
State Control ◽  
Current Crisis ◽  
The Public ◽  
Capital Growth ◽  
Full State

The article deals with the content of the category “sustainable development”. Through the understanding of the signs of sustainable development, the goals of economic entities are substantiated, the directions of transformation of the economic system in accordance with the goals of sustainable development are determined. The goal of modern society is to make more and more profit. The current crisis reveals the limits of profit: markets are becoming global, and further expansion of production is impossible, and credit opportunities to expand demand are becoming limited, which, in turn, are limited by the relatively declining incomes of the population. With the apparent improvement in the quality of life, GDP growth and other indicators, dissatisfaction with the modern economy increases. Since it is quite difficult to abandon the usual goals, the goals of economic entities should be refracted under the pressure of public interest. The spokesman of the public interest is government, but the initiative must come from the mass of the subject, able by his behavior to steer economic development in a new direction is households and individuals, including the self-employed. Orientation of households, each person is not on the maximization of utility, and harmonious creation is the goal of sustainable development. In accordance with this goal, there is no dependence on the constant increase and maintenance of income, the need to intensify labor, high dependence on the level of technology development. In conclusion, the authors suggest that the change of the socio-economic development of society in the direction of sustainable development involves the abandonment of big business, the possible introduction of full or partial policy of protectionism, full state control over the branches of natural monopolies (electricity, utilities, transport, etc.), the nomination as criteria for assessing the development of non-cost indicators of production and capital growth, and indicators of preservation of the biosphere and individual satisfaction with living conditions.

scholarly journals Pengaruh Dana Pihak Ketiga, Kredit yang Disalurkan dan Kredit Non Lancar Terhadap Laba(The Impact Of Third parties funds, DistributedLoans On Profitabilites) (Studi Kasus Pada Bank Nusantara Parahyangan Cabang Sudirman)

2018 ◽  
Vol 10 (1) ◽  
Author(s):  
Dwi Rianawati ◽  
Nur Imam Taufik
Keyword(s):  
Linear Regression ◽  
Regression Model ◽  
Linear Regression Model ◽  
Financial Institution ◽  
Third Parties ◽  
Third Party ◽  
The Public ◽  
The Impact ◽  
Loan Amount ◽  
Profit Growth

Bank as a financial institution is a business-oriented entity that is aiming to make profit/earnings through ethical ways including through fulfillment of customer needs and satisfaction. As commodities are processed and sold by the bank is fund that will also be the object of its business. Bank is a business entity which functions to collect funds from the public in the form of deposits, and also serves to distribute in the form of credit and other forms to the public or the debtor. The distribution is likely to impact the risk be less smooth return of the loan amount or also known as Non-Performing Loans (NPL), which will affect the company's financial banking. Non-performing loans are credit distributed loans, but the loans are substandard, doubtful and loss. The amount of data that is used as much as 42 months, they are the data of Third Party Fund, Distributed Loans and  Non Performing Loans  of Bank Nusantara Parahyangan, and also its profit from the period of January 2013- June 2016. The data were analyzed in this study using a linear regression model, and the results are Third Party Fund has significant effect on profit growth level at the Bank Nusantara Parahyangan Sudirman branch; The amount of Distributed Loans does not have significant effect on profit growth level at Bank Nusantara Parahyangan Sudirman branch; The amount of Non Performing Loans does not have significant effect on profit growth level at Bank Nusantara Parahyangan Sudirman branch; Research shows the variable of the Amount of Third Party Funds, Distributed Loans, and Non Performing Loans simultaneously have a significant effect on profit grow level at Bank Nusantara Parahyangan Sudirman branch. Keywords: Impact of TPF, DL, NPL, Profit

scholarly journals Legal Standing Yayasan sebagai Badan Hukum

2018 ◽  
Vol 1 (1) ◽  
pp. 264-269
Author(s):  
Sunarmi Sunarmi
Keyword(s):  
Public Interest ◽  
Limited Liability ◽  
Third Party ◽  
Community Members ◽  
Legal Entity ◽  
The Public ◽  
Legal Standing ◽  
The Social ◽  
Illegal Acts

Dalam Pasal 1 angka 1 UU No. 16 Tahun 2001 tentang Yayasan disebutkan bahwa yayasan adalah badan hukum (rechtspersoon, legal entity) yang terdiri atas kekayaan yang dipisahkan dan diperuntukkan untuk mencapai tujuan tertentu di bidang sosial, keagamaan, dan kemanusiaan, yang tidak mempunyai anggota. Sebagai badan hukum maka yayasan memiliki harta kekayaan tersendiri yang terpisah dari harta kekayaan organ yayasan yaitu pembina, pengurus dan pengawas. Apabila korporasi dalam bentuk Perseroan Terbatas, pemiliknya adalah para pemegang saham, maka pemiliki yayasan itu bukanlah pendiri yayasan. Pemilik yayasan adalah tujuan yayasan itu sendiri, sehingga apabila terjadi dugaan penyimpangan terhadap aset yayasan, permasalahannya adalah apakah masyarakat memiliki kedudukan hukum (legal standing) untuk meyampaikan laporan kepada kepolisian terhadap organ yayasan yang diindikasikan melakukan perbuatan melawan hukum yang merugikan yayasan, siapakah yang memiliki kewenangan untuk melakukan pemeriksaan yayasan apabila terdapat dugaan penyimpangan terhadap aset yayasan dan siapakah yang bertanggung jawab terhadap terjadinya penyimpangan aset yayasan. Permasalahan di atas penting untuk dikemukakan melihat banyaknya laporan dari masyarakat anggota suatu perkumpulan yayasan yang melaporkan terjadinya perbuatan melawan hukum yang dilakukan oleh organ yayasan, sementara masyarakat dan penegak hukum masih memiliki tafsir yang berbeda terhadap pemahaman bahwa yayasan adalah milik masyarakat. Ada yang berpendapat bahwa yayasan adalah badan hukum publik dengan mengingat tujuan yayasan adalah sosial, keagamaan dan kemanusiaan sehingga yayasan bertujuan untuk melayani kepentingan umum, dengan demikian konsekwensinya adalah masyakat memiliki kewenangan untuk menyampaikan laporan terjadinya dugaan penyelewengan terhadap aset yayasan. Di pihak lain ada yang berpendapat bahwa yayasan adalah badan hukum privat karena didirikan oleh orang perorangan sebagaimana ditentukan dalam Pasal 9 Undang –Undang No. 16 Tahun 2001. Tulisan ini bertujuan untuk mengkaji secara normatif siapakah yang memiliki legal standing untuk menyampaikan laporan terjadinya perbuatan melawan hukum dalam suatu yayasan dengan menggunakan pendekatan normatif Dari hasil penelitian diketahui bahwa ditinjau dari segi Undang-Undang No. 16 Tahun 2001 tentang Yayasan, pengurus yayasan memiliki legal standing untuk mewakili kepentingan yayasan baik di dalam maupun di luar pengadilan (Pasal 35 ayat (1). Apabila pengurus terindikasi melakukan perbuatan melawan hukum yang mengakibatkan kerugian terhadap yayasan maka pengurus tersebut tidak berwenang mewakili kepentingan yayasan, yang berwenang mewakili kepentingan yayasan adalah pihak sebagaimana diatur dalam Anggaran Dasar (Pasal 36). Apabila terdapat dugaan terjadinya penyimpangan terhadap harta kekayaan yayasan maka Bab VIII tentang Pemeriksaan Terhadap Yayasan menentukan bahwa pihak ketiga yang berkepentingan dapat mengajukan permohonan tertulis disertai alasannya agar pengadilan mengeluarkan penetapan untuk melakukan pemeriksaan terhadap yayasan. Hal ini dilakukan sebagai bentuk pengawasan publik terhadap yayasan yang diduga melakukan perbuatan yang bertentangan dengan Undang-undang, Anggaran Dasar, atau merugikan kepentingan umum. Apabila penyimpangan terhadap aset yayasan tersebut dilakukan oleh organ yayasan maka yang bertanggung jawab adalah organ yayasan itu sendiri.   In Article 1 No. 1 Act No. 16 of 2001 concerning the Foundation stated that the foundation is a legal entity (rechtspersoon, legal entity) which consists of separated wealth and intended to achieve certain goals in the social, religious, and humanitarian fields, which do not have members. As a legal entity, the foundation has its own assets which are separate from the assets of the foundation's organ, who are the supervisor, managers, and supervisor. If the corporation is in the form of a Limited Liability Company, and the owner is the shareholders, then the owner of the foundation is not the founder of the foundation. The owner of the foundation is the purpose of the foundation itself, so that if there is an alleged deviation from the assets of the foundation, the problem is whether the community has a legal standing to submit a report to the police towards the organ of the foundation which is indicated to violate the foundation, then who has the authority to conduct a foundation monitoring if there is an alleged deviation from the assets of the foundation and who is responsible for the deviation of the assets of the foundation. The above problem is important to be noted when there are many reports from the community members of a foundation association that report the occurrence of illegal acts carried out by the organ of the foundation, while the community and law enforcement still have different interpretations of the understanding that the foundation belongs to the community. Some argue that the foundation is a public legal entity considering the foundation's purpose is social, religious, and humanitarian, so that the foundation aims to serve the public interest, thus the consequence is that the community has the authority to submit reports of alleged fraud towards the assets of the foundation. On the other hand, there are those who argue that foundations are private legal entities because they are established by individuals as specified in Article 9 of Act No. 16 of 2001. This paper aimed to normatively examine who has the legal standing to submit a report on the occurrence of unlawful acts in a foundation using a normative approach. From the results of the study, it is known that in terms of Act No. 16 of 2001 concerning the Foundation, the management of the foundation has a legal standing to represent the interests of the foundation both inside and outside the court (Article 35 paragraph (1). If the management is indicated to have committed an unlawful act that resulted in a loss to the foundation, the management is not authorized to represent the interests of the foundation, which is authorized to represent the interests of the foundation as the party stipulated in the Articles of Association (Article 36). If there is an alleged deviation from the foundation's assets, Chapter VIII of the Investigation of the Foundation determines that the interested third party can submit a written application along with the reason that the court issues a determination to conduct an examination of the foundation. This is done as a form of public supervision of foundations that are suspected of committing acts that are contrary to the Law, Articles of Association, or harming the public interest. If the deviation from the foundation's assets is carried out by the organ of the foundation, then the responsible organ is the foundation itself.

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