INDIRECT JUDICIAL CONTROL OVER THE LEGALITY OF ADMINISTRATIVE ACTS

Indirect judicial control over the legality of administrative acts within the framework of which the court considers civil law claim whilst evaluates the legality of an administrative act with a missed deadline of direct retrial, is one of the most pressing and unresolved problems of civil and administrative law interplay. The permissibility of indirect judicial control over legally binding administrative acts generates inter-branch conflicts, ‘divergent legal implications’ that have negative impact both on the citizen, when his conduct, permitted by an administrative procedure, entails civil legal sanctions, and on the administrative body, since the civil law practice is a means of “invasion” into its competence to assess the circumstances of the case and make decisions in a particular managerial situation1. The approach of not accepting the binding nature of an administrative act which has legal force, established in the Russian legal system for the court considering a civil case, is perceived as an axiom that does not require proof. However, looking at the problem of binding nature of an administrative act through the prism of the German concept of legal force of administrative acts allows us to question the validity and effectiveness of this axiom for modern civil and public circulation. In German legal system indirect control over the legality of legally binding administrative acts is not possible, such acts are considered obligatory for the courts, with the exception of acts that are null. Thus, the limits of indirect judicial control over the legality of administrative acts are placed in their legal force, and the very concept of the legal force of administrative acts must be built on the grounds of harmonization of the underlying interactive principles: legality, legal certainty, protection of trust.

Download Full-text

Theoretical and legal problems of dynamics of changes of the civil law

Advances in Law Studies ◽

10.12737/983 ◽

2013 ◽

Vol 1 (4) ◽

pp. 205-208

Author(s):

Георгий Писарев ◽

Georgiy Pisarev

Keyword(s):

Institutional Change ◽

Legal System ◽

Negative Impact ◽

Civil Law ◽

System Change ◽

Property Relations ◽

Legal Problems ◽

Strategic Goals ◽

Theoretical Developments

The ongoing reform in the Russian civil legislation is estimated by the author considering theoretical developments on the forms of institutional change. On the example of the influence of new legislation on property relations, in this article we prove the absence of a key element for this type of transformation. Reform of the civil law has no common strategic goals in the entire legal system. The absence of one time and system change of regulation not only in the sphere of civil law, but also in the land, administrative and other industries could have a negative impact on the efficiency of transformation.

Download Full-text

SEARCH FOR AND SEIZURE OF EVIDENCE IN CYBER ENVIRONMENTS: A LAW-ENFORCEMENT DILEMMA IN SOUTH AFRICAN CRIMINAL PROCEDURE

Journal of Law Society and Development ◽

10.25159/2520-9515/874 ◽

2014 ◽

Vol 1 (1) ◽

pp. 48-67

Author(s):

Vinesh M Basdeo ◽

Moses Montesh ◽

Bernard Khotso Lekubu

Keyword(s):

Law Enforcement ◽

South African ◽

Legal System ◽

Criminal Procedure ◽

Integrated Approach ◽

Physical World ◽

Legal Framework ◽

Time Zone ◽

Legal Sanctions ◽

Domestic Affairs

Investigating, deterring and imposing legal sanctions on cyber-criminals warrants an international legal framework for the investigation and prosecution of cybercrime. The real-world limits of local, state and national sovereignty and jurisdiction cannot be ignored by law-enforcement officials. It can be a strenuous task to obtain information from foreign countries, especially on an expedited basis – more specifically when the other country is in a different time zone, has a different legal system, does not have trained experts and uses different languages. In South Africa existing laws appear to be inadequate for policing the cyber realm. The effects and impact of information technology on the legal system have not yet received the attention they warrant. The challenges presented by the electronic realm cannot be solved merely by imposing existing criminal and criminal procedural laws which govern the physical world on cyberspace. The electronic realm does not necessarily demand new laws, but it does require that criminal actions be conceptualised differently and not from a purely traditional perspective. Sovereignty and the principle of non-interference in the domestic affairs of another state are fundamental principles grounding the relations between states; they constitute an important mechanism in the armoury of criminals. The harmonisation and enactment of adequate and appropriate transborder coercive procedural measures consequently play a pivotal role in facilitating effective international cooperation. This article examines the efficacy of South African laws in dealing with the challenges presented by police powers to search for and seize evidence in cyber environments. It analyses the rudimentary powers that exist in South African criminal procedure regarding the search for and seizure of evidence in cyber environments, and compares them against the backdrop of the more systemic and integrated approach proposed by the Cybercrime Convention.

Download Full-text

Legal Origin, Institutional Quality, and Islamic Finance Development: Does Shari’a Matter?

The Law and Development Review ◽

10.1515/ldr-2020-0053 ◽

2020 ◽

Vol 13 (2) ◽

pp. 345-369

Author(s):

Rihab Grassa

Keyword(s):

Financial Development ◽

Legal System ◽

Civil Law ◽

Islamic Finance ◽

Islamic Banking ◽

Financial Industry ◽

Legal Origin ◽

Muslim Population ◽

Legal Origins ◽

Shari'a Law

AbstractPrevious studies on financial development have shown that differences in the legal origin explain differences in financial development. Using historical comparisons and cross-country regressions for 40 countries observed for the period from 2005 to 2018, our research assesses how different legal origins have affected the development of Islamic finance worldwide. More particularly, our research assesses empirically why and how the adoption of Shari’a, wholly or partially (combined with common or civil law), could explain the level of development of Islamic finance in different jurisdictions. Our primary results show that countries adopting a Shari’a legal system have a very well-developed Islamic financial system. Moreover, countries adopting a mixed legal system based on common law and Shari’a law have sufficient flexibility within their legal systems to make changes to their laws in response to the changing socioeconomic conditions, and this has helped the development of the Islamic financial industry. However, countries adopting a mixed legal system based on both civil law and Shari’a law appear less flexible in making changes to their old laws and this thwarted the development of the Islamic financial industry in these countries. Furthermore, we have found that the concentration of a Muslim population (the percentage of Muslim population) along with the level of income have both had a positive effect on the development of Islamic banking assets and on the development of Islamic banking as a whole.

Download Full-text

The Transplant of Trusts in Different Legal Jurisdictions: The Example of China

Global Jurist ◽

10.1515/gj-2019-0060 ◽

2020 ◽

Vol 0 (0) ◽

Author(s):

Giulia Terranova

Keyword(s):

Legal System ◽

Common Law ◽

Civil Law ◽

Original Model ◽

People’S Republic Of China ◽

Legal Institution ◽

Legal Systems ◽

People's Republic Of China ◽

Republic Of China ◽

Trust Law

AbstractLegal transplants are considered a significant factor in the evolution of legal systems. One example of transplant of a legal institution through its prestige is the diffusion of the trust from the English legal system to other common law systems and to many civil law countries. One of these is China that in 2001 enacted the Trust Law of the People’s Republic of China. This paper wants to analyse the trust under the Trust Law and to compare it with the original model in the English legal system, understanding how far or how close it is from the original one.

Download Full-text

Piercing and tattoos in adolescents: legal and medico-legal implications

Open Medicine ◽

10.1515/med-2018-0023 ◽

2018 ◽

Vol 13 (1) ◽

pp. 148-152

Author(s):

Adelaide Conti ◽

Paola Bin ◽

Claudia Casella ◽

Emanuele Capasso ◽

Piergiorgio Fedeli ◽

...

Keyword(s):

Legal System ◽

Body Modification ◽

Health Protection ◽

Legal Implications

AbstractNon-therapeutic body modification interventions are permitted within the limits of the use of one’s own body that can be specified in the legal system. The authors take into consideration Italian regulation on tattooing and piercing, in particular in relation to adolescents.ResultsIn Italy, several regions have therefore issued acts aimed at regulating the activities of tattoo and piercing also in reference to minors. Discussion. With regard to minors, the rules taken into account set precise limits in relation to the age criterion and subordinate the implementation of such practices to the provision of consent by legal representatives.ConclusionIf such practices are of an aesthetic nature, we cannot avoid considering the implications they have on health protection, and then adopt appropriate measures to protect the person who intends to undergo them, particularly in the case of minors.

Download Full-text

Kajian Yuridis Pengesampingan Pasal 1266 dan Pasal 1267 Kitab Undang -Undang Hukum Perdata sebagai Syarat Batal dalam Perjanjian Kredit Perbankan

Perspektif Hukum ◽

10.30649/ph.v17i1.59 ◽

2017 ◽

pp. 65-89

Author(s):

Rocky Marciano Ambar ◽

Budi Santoso ◽

Hanif Nur Widhiyanti

Keyword(s):

Research Method ◽

Code Of Ethics ◽

Civil Law ◽

Banking System ◽

Civil Code ◽

Bank Credit ◽

Dominant Position ◽

Legal Implications ◽

Credit Agreement ◽

The Right

Banks in credit agreements use more standard agreements, standard contracts in 2 (two) things, (1) There is an unbalanced position between banks and debtors, banks that have a more dominant position and debtors. (2) There is an understanding of the principle of freedom of contracting and without limits. The Bank has the freedom to seek the form and content of the agreement. Code of Ethics in agreement. The provisions of the Civil Code provide types of compensation for parties. Based on the background, then for problems the problem is written (1). Does the inclusion of Article 1266 and Article 1267 of the Civil Code on the banking system have collected the principles of balance and justice. (2) What are the legal implications of the exclusion clause. The research method is normative juridical research. The result of this research is the neglect of civil law and the principle of compensation is the principle of balance. The basic principle according to Rawls is that it is unfair or more people. in the sense of "freedom of results", in other words. is the nature of the debtor in a bank credit agreement. For the legal implications of the clause that excludes Article 1266 and Article 1267 of the Civil Code concerning the right of the debtor to the debtor. Legal efforts in finding and resolving problems that cannot be made by a decision due to the imbalance of the parties in the agreement. For people who make changes, no party will be harmed.

Download Full-text

Fungsi Hukum Nota Kesepahaman Sebagai Perikatan Perjanjian Menurut Kitab Undang-Undang Hukum Perdata (KUH Perdata)

SUPREMASI HUKUM ◽

10.33592/jsh.v17i1.1174 ◽

2021 ◽

Vol 17 (1) ◽

pp. 78-93

Author(s):

Mochamad Moro Asih ◽

Tunjung Fitra Wijanarko

Keyword(s):

Civil Law ◽

Civil Code ◽

Moral Sanction ◽

Written Form ◽

Legal Force

The position of the Memorandum of Understanding on Indonesian Civil Law, as a written form of understanding between the parties, is not a law based agreement. In consequences, no sanctions applied for those parties whose denying (the agreement(s), but on moral sanction. However, a Memorandum of Understanding that does not have a compelling legal force can have it sanctions for any parties involved. The strength to binding (parties) of the Memorandum of Understanding according to agreement law in Indonesia is found on Indonesian Civil Code, equate a Memorandum of Understanding with an “agreement”. Article 1338 of Indonesian Civil Code states that every agreement made, legally binding as a law for the parties who made such agreement (Pacta Sunt Servanda), but if the legal elements of the agreement in Article 1320 Indonesia Civil Law are not fulfilled, then the Memorandum of Understanding is anulled and void by law, and has no legal force. Keywords: Memorandum of Understanding, agreement, sanction, Code of Civil Law

Download Full-text

Pertanggungjawaban Pidana Terhadap Kerusakan Lingkungan Akibat Pengolahan Material Oleh PT Tukad Mas Kota Bima

SASI ◽

10.47268/sasi.v27i3.475 ◽

2021 ◽

Vol 27 (3) ◽

pp. 267

Author(s):

Hajairin Hajairin ◽

Gufran Sanusi ◽

Aman Ma’arij

Keyword(s):

Material Processing ◽

Environmental Pollution ◽

Criminal Law ◽

Negative Impact ◽

Criminal Liability ◽

Civil Law ◽

Health Impact ◽

City Government ◽

Environmental Damage ◽

Special Concern

Material processing by PT Tukad Mas Kota Bima which has a negative impact, namely the existence of pollution or environmental damage in the East Rasa Nae Subdistrict, Bima City, so that it can be held accountable under criminal law, civil law and administrative law. The purpose of this study was to determine the form of criminal liability for environmental damage due to material processing by PT Tukad Mas Kota Bima. The research method used is empirical legal research with data collection techniques through interviews and documentation. The findings of this study indicate that legal liability for environmental damage due to material processing by PT Tukad Mas Kota Bima can be seen in aspects of criminal law, civil law and administrative aspects. However, the Bima City Government through the Environmental Service has only given a written warning to PT Tukad Mas Kota Bima, which has been operating for decades. Whereas empirical facts have shown that there is quite severe damage, such as waste disposal that can have a health impact on the community and natural damage due to excavations carried out. Criminal liability should be a special concern, NGOs and the community even report on environmental crimes, the report is because the result of material processing causes environmental pollution as one of the elements of criminal acts against environmental pollution.

Download Full-text

SEARCHING FOR LEGAL GROUNDS FOR ENTREPRENEURS’ COMPENSATION CLAIMS FOR DAMAGES CAUSED BY RESTRICTIONS ON BUSINESS ACTIVITY IN ORDER TO COMBAT COVID-19 – PART II

Roczniki Administracji i Prawa ◽

10.5604/01.3001.0015.2513 ◽

2021 ◽

Vol 1 (XXI) ◽

pp. 155-172

Author(s):

Wojciech Papis

Keyword(s):

Legal System ◽

Civil Law ◽

The State ◽

Business Activity ◽

Public Authorities ◽

Compensation Claims ◽

Legal Grounds

In the second part of the article, the author discusses the procedure for recognizing normative acts as unconstitutional - which is the basis for claiming compensation from the state treasury for damages caused by the application of these unconstitutional normative acts and regulations based on the provisions of substantive civil law. When analyzing the content of the regulations regarding the COVID-19 epidemic, the author reviews the regulations that raise doubts in the doctrine as to their constitutionality. He also notes the inconsistency of these provisions with the legal system. Finally, the problem of possible compensation of the state treasury for damages caused by the legal activities of public authorities is discussed

Download Full-text

PENYELESAIAN GANTI RUGI AKIBAT SENGKETA PENGUASAAN HAK ATAS TANAH SECARA MELAWAN HUKUM (Tinjauan Beberapa Kasus di Pengadilan Negeri Surakarta)

Jurnal Privat Law ◽

10.20961/privat.v7i1.30104 ◽

2019 ◽

Vol 7 (1) ◽

pp. 68

Author(s):

Ananda Dwinanti Kinasih , ◽

M. Hudi Asrori S ,

Keyword(s):

Data Collection ◽

Civil Law ◽

Secondary Data ◽

Land Rights ◽

The State ◽

Primary Data ◽

State Court ◽

Legal Research ◽

Analytical Technique ◽

Legal Force

Abstract This article aims for reviewing how the settlement of compensation as the consequences of the tenure of land rights unlawfully in civil law Surakarta state court verdict number 106/pdt.g/2017/PN.SKT and number 103/pdt.G/2006/PN.SKT where the court’s decision has a permanent legal force. This research is a juridical normative legal research. The location of this research at Notary Office and PPAT Adib Sujarwadi and the State Court Surakarta Class 1A Specific. Kinds and the sources of data in this research are consist of primary data and secondary data. The technique of data collection through interview and library study. The analytical technique used by the author is by the method of syllogism that uses the deduction mindset. Regarding the settlement of compensation due to unlawful tenure of land rights is a compensatory damages, in the form of payment to the victim amounting to a loss that is actually experienced. Based on the decision of the Panel of Judges. Regarding the non-granting of immaterial compensation because the Plaintiff does not attach the appropriate evidence. After the verdict is declared incracht, outside the court, the Defendant and the Plaintiff may hold deliberations to determine the amount of the indemnity or the Plaintiff waived the indemnity obligation, but the Defendant must leave the land of the object of the dispute voluntarily. In the case of still occupy it will be executed by the bailiff from the Court. Keywords: Compensation; Tort; Tenure Of Land Rights.Abstrak Artikel ini bertujuan untuk mengkaji bagaimana penyelesaian ganti rugi akibat penguasaan hak atas tanah secara melawan hukum pada perkara perdata Putusan Pengadilan Negeri Surakarta Nomor 106/ Pdt.G/2017/PN SKT dan Nomor 103/Pdt.G/2006/PN SKT, dimana putusan pengadilan tersebut telah berkekuatan hukum tetap. Penelitian ini merupakan penelitian hukum normatif yuridis. Lokasi penelitian yaitu di Kantor Notaris dan PPAT Adib Sujarwadi dan Pengadilan Negeri Surakarta Kelas IA Khusus. Jenis dan sumber data penelitian ini meliputi data primer dan data sekunder. Teknik pengumpulan data melalui wawancara dan studi kepustakaan. Teknik analisis yang digunakan oleh penulis adalah dengan metode silogisme yang menggunakan pola pikir deduksi. Penyelesaian ganti rugi akibat penguasaan hak atas tanah secara melawan hukum yaitu dengan ganti rugi kompensasi, berupa pembayaran kepada korban sebesar kerugian yang benar-benar dialami. Berdasarkan keputusan Majelis Hakim. Mengenai tidak dikabulkannya ganti rugi immateriil dikarenakan Penggugat tidak melampirkan bukti-bukti yang sesuai. Setelah putusan dinyatakan incraht, di luar pengadilan, Tergugat dan Penggugat dapat mengadakan musyawarah untuk menentukan jumlah ganti rugi atau Penggugat membebaskan kewajiban pembayaran ganti rugi, namun Tergugat harus meninggalkan tanah obyek sengketa secara sukarela. Dalam hal masih tetap menempati maka akan dilakukan eksekusi oleh juru sita dari Pengadilan. Kata Kunci : Ganti Kerugian; Perbuatan Melawan Hukum; Penguasaan Hak Atas Tanah.

Download Full-text