scholarly journals La problemática derivada del reconocimiento de los efectos del contrato de gestación subrogada desde la perspectiva del Derecho del trabajo y de la Seguridad Social = The problem derived from recognizing the effects of gestation contract subrogated from the perspective of labor law and social security

2019 ◽  
Vol 11 (2) ◽  
pp. 348
Author(s):  
David Tomás Mataix

Resumen: El contrato de gestación subrogada es nulo de pleno derecho en España por ser clara­mente contrario a los principios más esenciales de nuestro ordenamiento jurídico, siendo tal consecuen­cia expresada en la Ley 14/2006, de 26 de mayo. Pese a ello, de su celebración derivan una serie de efectos en el ámbito del Derecho del Trabajo y de la Seguridad Social, surgidos a partir de la creación de una nueva realidad familiar resultada del nacimiento de un menor de edad.Palabras clave: maternidad subrogada, nulidad, derechos sociales, Seguridad Social, interés su­perior del menor.Abstract: The surrogate motherhood contract is declared invalid in Spain because it is clearly con­trary to the most essential principles of our legal system, this being expressed by the Law 14/2016, 26th of May. However, a series of effects derive from the celebration in the field of Labor and Social Security Law, arising from the creation of a new family reality resulting from the birth of a minor.Keywords: surrogate motherhood, nullity, social security, social rights, children´s interest.

2008 ◽  
Vol 21 (1) ◽  
pp. 129-148 ◽  
Author(s):  
David Lefkowitz

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.


2020 ◽  
pp. 70-75
Author(s):  
Karina Gnatenko

Problem setting. In recent years, as a result of legislative activity, many new legal principles have emerged that guide the legal regulation of the social sphere and indicate the general directions of the implementation of social rights. As a result, there is both a theoretical and a practical need to clarify their content and streamline the principles of social security law throughout the system. Characterizing the principles of social security, it should be noted that today there are many classifications of sectoral principles and those that were developed in Soviet times, and those that are more or less focused on the specifics of today. Some principles disappeared, losing their relevance and ceasing to affect all social security; others, on the other hand, have become more and more confident in the system of sectoral principles, having barely appeared in social security legislation. One such principle is the principle of targeting. Analysis of recent researches and publications. Problems of providing targeted assistance in their scientific works were studied by such scientists as O. O. Bogdanova, T. Z. Garasimov, A. Gladun, S. V. Kudlaenko, O. V. Moskalenko, I. Yu. Khomych, T. Yu. Khrenova, O. Chutcheva, O. M. Yaroshenko and others. Target of research – to find out the content of the principle of targeting in the law of social security and to determine its place in the mechanism of legal regulation of the law of social security in modern conditions in the implementation of social rights. Article’s main body. Targeted social protection in general is aimed at determining the real standard of living of persons seeking social assistance, their real need for social assistance. It is a characteristic tool of social programs to combat poverty, which allows to achieve a significant effect by qualitatively identifying the criteria characteristics of “beneficiaries”. The main advantage of the targeted social protection system is, firstly, the more efficient use of available limited budget funds to provide social assistance to the most vulnerable categories of citizens; secondly, most of such funds are spent on poor citizens. Therefore, addressing the system of social protection of vulnerable groups can, on the one hand, significantly increase the ability of this system to provide social assistance and services to those who really need it, and on the other – to prevent access to budget funds for state social assistance and provision of social services to those to whom it is not intended. This, in turn, will reduce the overall cost of social assistance programs at the state and regional levels, which is an important factor given the limited financial resources. Conclusions and prospects for the development. The principle of targeting social benefits, taking into account the financial situation of a particular person in a particular life situation, recognized by the state society as socially respectable, will contribute, on the one hand, more effective implementation of social rights, as it will take into account the specific life situation and, on the other hand, without limiting the volume and types of social benefits already provided by the current legislation, will promote a more rational distribution of funds from public consumption funds. Targeted social protection should be aimed at determining the real standard of living of persons seeking social assistance, their real need for social assistance


Author(s):  
Mohieddin Mohammadi ◽  
Garnik Safariani

The principle of respecting the separation of political forces in a society gives the legal system the right to issue orders on people's complaints based on the laws approved by the legislative power. There is no question that laws, like other man-made things, have shortcomings. These decisions include the rupture and even the conflict between two or more articles of the law that provoke the creation of different policies in the court of justice and the punitive court of Iran. With a documentary methodology, this article attempts to study the conflicts between different punitive laws and their effect on the creation of different policies in the courts of Iran. It is concluded that, in many cases, due to different reasons there may be defects in the law or in the interpretation of the law that generate defect, ambiguity, clash between laws and contradiction. The existence of all these failures in different cases will cause conflicts between the judges of the criminal courts and these conflicts are the source of the creation of different legal procedures in the criminal courts and in the short time analyzed.


2017 ◽  
Vol 1 (100) ◽  
pp. 987 ◽  
Author(s):  
Carmen Alemán Bracho ◽  
José María Alonso Seco

Resumen:El estudio se refiere a las prestaciones de atención a la dependencia establecidas en España por la Ley 39/2006, de 14 de diciembre, de Promoción de la Autonomía Personal y Atención a las personas en situación de dependencia y por las nuevas Leyes autonómicas de servicios sociales. Después de describir brevemente dichas prestaciones, se analiza el carácter de derechos sociales que pueden tener en la Constitución, en la jurisprudencia del Tribunal Constitucional y en la legislación estatal y autonómica.Summary:1. Introduction. 2. Dependency benefits. 2.1 Conceptual approach. 2.2 Consideration as «social assistance» benefits. 3. Dependency benefits as social rights. 3.1 Constitution and jurisprudence of the Constitutional Court. 3.2 State and autonomous legislation. 4. Conclusion. 5. Bibliographical references.Abstract:The study addresses the dependency benefits established in Spain by the Law 39/2006, of 14 December, on the Promotion of Personal Autonomy and Care for people in a situation of dependence and by other recent regional social services laws. Initially, we analyze how these benefits are incorporated into the Spanish legal system as a result of international external influences. Furthermore, we evaluate the nature of social rights in the Constitution, in the Constitutional Court jurisprudence, and in the state and regional legislation.


Author(s):  
Thiruvengadam Arun K

This chapter examines the constitutional status of tribunals in India and how the law and policy on tribunals have evolved since 1950. It presents a brief historical background on the evolution of tribunals in India, starting from the origin of tribunals and debates among law reform bodies from 1950 to 1975 to the Swaran Singh Committee report recommending the creation of tribunals to combat delays in the Indian legal system. It then reviews constitutional litigation over tribunals during the period 1985–2014, focusing on the Sampath Kumar and other cases after it, along with the National Company Law Tribunals. It also considers the debate over the ‘tribunalisation’ of the Indian legal system and the constitutional arguments that have been raised to challenge the validity of particular tribunals. Finally, it looks at recent criticism of the growth of tribunals by practicing lawyers and argues that calls for their abolition are impractical.


2018 ◽  
Vol 11 (1) ◽  
pp. 79-92 ◽  
Author(s):  
Masdar Masdar

Cash waqf in Indonesia has been long enough implemented based on some rules enacted by government and other rules defined by The Waqf Board of Indonesia (BWI). However, the implementation of cash waqf has not reached the level of success. Therefore, this article studies the application of cash waqf law in Indonesia according to Friedman’s legal system theory. The legal system theory of Friedman firstly looks at the substance of the law, which is the rules or regulations; and secondly it examines the structure of the law, encompassing the law enforcement agencies, such as judge, prosecutor, police and legal counselors. And lastly the theory examines the element of legal culture, which is a response from Muslim society. The first two examinations indicate that there is nothing to be a problem. But from the last examination there is a problem regarding the trust from Muslim society. From the legal culture point of view, the implementation of cash waqf by the government, which is performed by BWI, needs attracting society’s credentials in order to improve and maximize the performance of cash waqf in Indonesia.


Author(s):  
ARTAN QERKINI

The market economy and changes within Republic of Kosovo’s legal system, which imposed the need of legal changes within the field of contested procedure also, have caused this procedure to become more efficient vis-à-vis legal provisions which were in force until October 6th 2008. Through the Law on Contested Procedure (hereinafter “LCP”), the legislator has aimed, inter alia, to make the contested procedure more concentrated, and thus, more efficient. In this regard, the Kosovar legislator has determined that it is mandatory for the parties to present any and all relevant evidence for resolving the dispute until the preparatory session, and in the event that one was not held, until the first main hearing session. As an exception, the parties may present relevant evidence even after this stage of proceedings, provided that their failure to present said evidence no later than at the preparatory session, respectively first main hearing session, was through no fault of their own. I consider that these legislative amendments are vital to ensuring practical implementation of the principle of efficience in the contested procedure.


Sign in / Sign up

Export Citation Format

Share Document