scholarly journals Filiación natural. El artículo 9.4 del Código Civil y el triunfo de la residencia habitual del hijo = Natural filiation. Art. 9.4 CC and the triumph of the child’s habitual residence

2018 ◽  
Vol 10 (1) ◽  
pp. 592
Author(s):  
Isabel Lorente Martínez
Keyword(s):  
Protection System ◽  
Habitual Residence ◽  
Applicable Law ◽  
The Law ◽  
The Moment

Resumen: A través de esta reciente e interesante sentencia de la Audiencia Provincial de Tarragona se aborda el estudio de la ley aplicable a los casos de filiación natural. Se subraya el acierto del legislador español a la hora de cambiar el punto de conexión del artículo 9.4 del Código Civil español, antes nacionalidad del hijo, ahora residencia habitual del hijo en el momento del establecimiento de la filiación, con la modificación operada por el apartado uno del artículo segundo de la Ley 26/2015, de 28 de julio, de modificación del sistema de protección a la infancia y a la adolescencia.Palabras clave: filiación, ley aplicable, nacionalidad, residencia habitual, menores, Derecho interregional.Abstract: Across this recent and interesting judgment of the Provincial Hearing of Tarragona dealt with the survey of the applicable law to the natural filiation cases. The success of the Spanish legislator is underlined at the moment of changing the point of connection of the article 9.4 of the Civil Spanish Code, before nationality of the son, now law of the habitual residence of the son into the moment of the establishment of the filiation, with the modification operated on the paragraph one of the second article of the Law 26/2015, of July 28, of modification of the protection system to the infancy and to the adolescence.Keywords: filiation, applicable law, nationality, habitual residence, minor, interregional Law.

scholarly journals Deeply Analysis on French Rules of Conflict of Laws

2019 ◽  
pp. 1-15
Author(s):  
Desiree Roffee Ciss
Keyword(s):  
Social Life ◽  
Legal Issue ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Abstract Rule ◽  
The Law ◽  
Contractual Obligations ◽  
The Moment ◽  
The Individual

The law, in a general way, has the role of regulating life in society. From this same Law, several rights with branches facilitate their explanation and use in our social life to establish order. This being life in society could be seen as a kind of contract to the extent that it would be difficult for the individual to live without maintaining relationships with others. So, from the moment that there is this exchange between individuals there is what we could call contract. As we know, the contract is defined in law as an agreement by which one or more persons agree to one or more other persons to give, do or not to do something. It should also be specified that there are several kinds of contracts, but the one that will be the main focus of our development is the international contract. An international contract is understood to mean this contract, which, unlike the internal contract, presents an element of extraneity, in other words an international character. For example, a contract between two individuals of different nationality. The contract thus concluded, the contracting parties may indeed encounter difficulties that may arise at any time, most often due to non-compliance with the terms of the contract. These problems or disputes are often very difficult to resolve because the parties are from different origins, residing in different countries, or bound by commitments made in a country other than their country of residence, hence the existence of different laws. and the birth of what is called a conflict of laws. This being so, by conflict of laws is meant to be one of the main problems with private international law (the branch of law which deals with the settlement of disputes of private rights having at least an extraneous character). Thus, the question arises as to which law would be applicable in the event of a conflict of laws in the matter of contract, that is, how to choose or determine the applicable law in the course of a dispute with a foreign element? Thus, once the French judge is seized of the dispute, it will be necessary to find the law applicable to the questions of law asked. Assuming that the French judge can apply a foreign law, and that the various foreign laws with links to the litigation have a theoretical vocation to apply, were developed what are called conflict of laws rules which is an abstract rule, indirect (it does not solve the substantive question asked, but only to determine the law competent to resolve this substantive legal issue), and neutral (the substantive solution is not taken into account in the determination of the applicable law). In order to give answers to our questioning, we will focus on how to choose the law applicable to conflict of laws in matters of contract and this, in the light of French law, the Rome Convention of 19 June 1980 and the Rome 1 Regulation on the law applicable to international contractual obligations.

scholarly journals Stosowanie deliktowych łączników lokalnych do zdarzeń mających miejsce na pokładzie statku morskiego lub powietrznego w unijnym prawie prywatnym międzynarodowym

2019 ◽  
Vol 24 ◽  
pp. 109-139
Author(s):  
Łukasz Dyrda
Keyword(s):  
Member State ◽  
Applicable Law ◽  
Contractual Obligation ◽  
The Law ◽  
The Moment ◽  
Jurisdiction Rule ◽  
Flag State ◽  
High Seas

The article is aimed at determining the relevance of the flag state (regarding vessels) and the country of registration (regarding aircrafts) principles for the purpose of the application of territorial connecting factors (the place of the event giving rise to damage (place of acting) and the place where the damage occurred (place of damage)) employed by article 7(2) of the Regulation No 1215/2012 (Brussels I bis Regulation) providing a special jurisdiction rule in matters relating to tort, delict or quasi-delict and by article 4(1) of the Regulation No 864/2007 (Rome II Regulation) specifying the law applicable to a non-contractual obligation arising out of a tort or delict. The flag state and the country of registration principles could be taken into account when circumstances constituting the event giving rise to damage or the damage itself are situated on board of a vessel navigating in or an aircraft flying through the areas outside the sovereignty of any state (in particular the High Seas). The reference to the flag state or the country of registration instead of the sovereignty in order to identify the member state whose courts have jurisdiction pursuant to article 7(2) of the Brussels I bis Regulation or the statewhose law is applicable according to article 4(1) of the Rome II Regulation may also be possible in cases when the determination of the place where the event giving rise to damage occurred or where the damage occurred is difficult or even when the competent jurisdiction and the applicable law identified based on the sovereignty over the area where the vessel navigated or the aircraft flew at the moment when the event giving rise to damage occurred or damage occurred does not materialise the closest connection principle.

scholarly journals LEGAL REGULATION OF DIVORCE: HISTORICAL DEVELOPMENT AND MODERN PRINCIPLES

2021 ◽  
pp. 116-122
Author(s):  
L. Radchenko
Keyword(s):  
Catholic Church ◽  
Family Law ◽  
Family Relations ◽  
Legal Regulation ◽  
Eu Law ◽  
Historical Aspect ◽  
Applicable Law ◽  
Foreign Law ◽  
The Law ◽  
The Moment

The article is devoted to the study of the genesis of legal regulation of the order, conditions and consequences of divorce in its historical aspect, as well as given the current principles of family relations in EU law and foreign law, highlighting the latest trends in divorce relations and outlining the laws of their further consolidation in the family law of Ukraine, formulation of conclusions and proposals aimed at harmonization of national legislation with EU law. The divorce procedure, its conditions and legal consequences are regulated by the legislation of different states in different ways. The regulation of divorce relations is also significantly influenced by national characteristics, traditions, religion and culture. The spread of family relations outside one state necessitates the application of foreign law to regulate such relations. Appropriate conflicts may result from the application of the law of different states regarding the grounds for divorce, the procedure for divorce, as well as the unequal determination of the moment of its dissolution. The article argues that one of the basic principles of Roman private law was the observance of absolute freedom of divorce. However, during the imperial period, and especially with the establishment of Christianity, restrictions were imposed on divorce. The approach to significant restrictions and even prohibitions on divorce has long been observed in the law of European states. Under the influence of the Catholic Church and Christian morality, the recipient law did not allow divorce at all or established restrictions and valid grounds for divorce. Divorce was allowed only as an exception, in the presence of significant circumstances, subject to complicated procedures. Since the second half of the twentieth century, divorce laws have been reformed in many countries, tending to abandon the idea that divorce is a sanction for marital misconduct and moving to the concept that divorce is a statement of a failed marriage. As a result of the reforms, divorces have become more liberalized. The article concludes that the general conflict principle of divorce is the law of citizenship of a spouse or husband (most countries of continental Europe) or the law of the place of residence of the spouses (England, USA and a number of other countries). However, Regulation 1259/2010 provides, in essence, innovative provisions for the choice of the competent legal order in the event of divorce, which enshrines the possibility for spouses to independently choose the applicable law. Keywords: marriage, marital relations, divorce, termination of marriage, EU law, family law.

scholarly journals Ley aplicable al régimen económico matrimonial. Algunas cuestiones de Derecho transitorio = Applicable Law to matrimonial property regimes. Some issues concerning transitional rules

2020 ◽  
Vol 12 (1) ◽  
pp. 456
Author(s):  
Javier Carrascosa González
Keyword(s):  
Habitual Residence ◽  
Applicable Law ◽  
Spanish Constitution ◽  
The Common ◽  
The Law ◽  
Property Regimes ◽  
Court Of Appeal

Resumen: El presente trabajo expone las relaciones entre la cuestión de la ley aplicable al régimen económico matrimonial en los casos de Derecho transitorio que han sido puestos de relieve por la jurisprudencia española y en particular por la SAP Barcelona 30 julio 2019. El estudio aborda la eliminación legislativa y jurisprudencia del punto de conexión discriminatorio “nacionalidad del marido”. También se explica la relación entre la teoría de la Drittwirkung y las normas de conflicto de leyes. Se distingue entre los matrimonios celebrados antes del día 29 de diciembre de 1978, los celebrados entre el día 29 de diciembre de 1978 y el día 7 de noviembre de 1990 y los que se llevan a cabo posteriormente. Finalmente, se exponen las razones por las que se aprecia una imparable emergencia de la residencia habitual común inmediatamente posterior a la celebración del matrimonio como punto de conexión para fijar la Ley reguladora del régimen económico matrimonial.Palabras clave: Iey aplicable al régimen económico matrimonial, nacionalidad del marido, Drittwirkung, Derecho transitorio, residencia habitual. Abstract: The present work deals with the law applicable to the matrimonial property regimes and transitional rules. The judgement rendered by the court of appeal of Barcelona on July 30th 2019 in examined. The husband’s nationality as a connecting factor is also studied and proves to be discriminatory and non compatible with the Spanish Constitution. In this scenario, the theory of Drittwirkung shows that the Spanish conflict rules are obviously subject to the Spanish Constitution. A distinction is made between marriages concluded before December 29, 1978, those celebrated between December 29, 1978 and November 7, 1990, and those carried out subsequently is made. Finally, this work analyses the reasons for an unstoppable rise of the common habitual residence after the marriage as a connecting factor to determine the Law applicable to matrimonial property regimes. Keywords: law applicable to the matrimonial property regimes, nationality of the husband’s nationality, Drittwirkung, transitional rules of law, habitual residence.

Оскарження рішень, дій чи бездіяльності публічної адміністрації як вид гарантії забезпечення надання публічних послуг у судовому порядку

2019 ◽  
Vol 24 ◽  
Author(s):  
О. В. Бойко
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Public Services ◽  
Legal Regulation ◽  
Scientific Article ◽  
Preliminary Stage ◽  
The Law ◽  
The Moment ◽  
Court Hearing

The scientific article identifies the peculiarities of appealing the decisions, actions or omissions of public administration subjects on the provision of public services at the stage of initiation and preparation for judicial review of an administrative case. The author substantiates the feasibility of improving the legal regulation of the procedure for holding a preliminary hearing before the court hearing of the case. In particular, it is considered expedient to set the terms of the preparatory meeting from the moment of receipt of the administrative claim, as well as to determine the cases when the parties are not reconciled.It is established that the preliminary stage of the court hearing often ends with the conclusion of the preliminary proceedings and the appointment of the case to trial in the field of public services. This is not against the law. However, it should be borne in mind that in accordance with Art. 121 of the CAS of Ukraine such a decision is delivered by the consequences of preparatory proceedings, not the previous court hearing. Obviously, preparatory proceedings are not limited to, and do not always end at, a previous court hearing. Preparation may continue after a preliminary hearing. Therefore, the decision to close the preliminary proceedings and assign the case to trial after the consequences of the previous court hearing can only be made if the judge has taken all the measures necessary to hear the case. If during a previous court hearing in the field of public services, to which all persons involved in the case have arrived, the issues necessary for its consideration have been resolved, then, with the written consent of these persons, a court hearing may be initiated on the same day. In this case, the termination order is also delivered.

Practical Application

2018 ◽  
Author(s):  
Kubo Mačák
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
Practical Application ◽  
Temporal Perspective ◽  
Applicable Law ◽  
The Law ◽  
Geographical Scope

This chapter analyses the practical application of the law of belligerent occupation in internationalized armed conflicts in its temporal, geographical, and personal dimensions. Firstly, from a temporal perspective, the law is shown to apply once one of the conflict parties consolidates its control over the enemy territory and substitutes its own authority for that of the displaced enemy. Secondly, the chapter assesses the geographical scope of the applicable law and draws specific guidelines for the determination of the territory subject to the law of occupation in various types of internationalized armed conflicts. Thirdly, the chapter endorses the allegiance-based approach to the designation of protected persons under the law of occupation and applies it to the reality of internationalized armed conflict. Overall, the chapter presents a workable toolkit for the application of the law of occupation to internationalized armed conflicts.

Constitutional and Institutional Developments

1996 ◽  
Vol 9 (1) ◽  
pp. 163-165
Author(s):  
Stephen H. Schwebel
Keyword(s):  
Legal Counsel ◽  
Law Faculty ◽  
Mcgill University ◽  
The Law ◽  
The Moment ◽  
Oil Company

Andrés Aguilar Mawdsley had a national and international career of the highest distinction. After his studies in Venezuela and at McGill University in Montreal – where more than the law he found the lovely wife who was at his side until the moment of his death – he began his career as a teacher of law, early attaining the rank of professor and dean of the law faculty in Caracas. By the age of thirty-four, he was appointed Minister of Justice. He subsequently served as the legal counsel of the Venezuelan national oil company and in many other positions of responsibility in Venezuela.

Legal Challenges for Romanian Family Medicine Practitioners in Times of ‘COVID-19’

2021 ◽  
Vol 28 (1) ◽  
pp. 71-75
Author(s):  
Silviu Dumitru PAUN ◽  
◽  
Sinziana-Elena BIRSANU ◽  
Codrut Andrei NANU ◽  
◽  
...  
Keyword(s):  
Family Medicine ◽  
General Practitioners ◽  
Point Of View ◽  
Insurance Policy ◽  
Roles And Responsibilities ◽  
Applicable Law ◽  
Professional Activities ◽  
Legal Challenges ◽  
The Law ◽  
Special Circumstances

The general practitioners (GPs’) practice faced serious challenges as a result of COVID-19 pandemic, including from a legal point of view. In this context, a series of questions related to the GPs’ professional activities might arise such as: (i) what happens if a doctor makes a mistake because he/she is exhausted, as a result of overtime or (ii) if he/she performs medical acts outside the boundaries of his/her own specialty or without consent, as requested by his/her own conscience, by the situation, by the authorities and by his/her principal? In all these special circumstances this could mean that the doctor fails to comply with the applicable law. Moreover, because he/she breaches the law, the professional insurance policy will cease to be applicable. With new roles and responsibilities, the GPs should adjust their practice to the current conditions.

scholarly journals The Phoenix of Colonial War: Race, the Laws of War, and the ‘Horror on the Rhine’

2017 ◽  
Vol 30 (4) ◽  
pp. 847-875 ◽  
Author(s):  
ROTEM GILADI
Keyword(s):  
International Law ◽  
Recent Literature ◽  
League Of Nations ◽  
Laws Of War ◽  
Black Soldiers ◽  
French Colonial ◽  
The Law ◽  
The Moment ◽  
Imperial Governance ◽  
The Phoenix

AbstractThe article explores the demise of the ‘colonial war’ category through the employment of French colonial troops, under the 1918 armistice, to occupy the German Rhineland.It traces the prevalence of – and the anxieties underpinning –antebellumdoctrine on using ‘Barbarous Forces’ in ‘European’ war. It then records the silence ofpostbellumscholars on the ‘horror on the Rhine’ – orchestrated allegations of rape framed in racialized terms of humanity and the requirements of the law of civilized warfare. Among possible explanations for this silence, the article follows recent literature that considers this scandal as the embodiment of crises in masculinity, white domination, and European civilization.These crises, like the scandal itself, expressedantebellumjurisprudential anxieties about the capacity – and implications – of black soldiers being ‘drilled white’. They also deprivedpostbellumlawyers of the vocabulary necessary to address what they signified: breakdown of the laws of war; evident, self-inflicted European barbarity; and the collapse of international law itself, embodied by the VersaillesDiktattreating Germany – as Smuts warned, ‘as we would not treat akaffirnation’ – as a colonial ‘object’, as Schmitt lamented.Last, the article traces the resurgence of ‘colonial war’. It reveals how, at the moment of collapse, in the very instrument embodying it, the category found a new life. Article 22(5) of the League of Nations Covenant (the Covenant) reasserted control over the colonial object, furnishing international lawyers with a new vocabulary to address the employment of colonial troops – yet, now, as part of the ‘law of peace’. Reclassified, both rule and category re-emerged, were codified, and institutionalized imperial governance.

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