scholarly journals PROTECTING PATIENT’S RIGHTS IN A POST-TRADITIONAL LEGAL SYSTEM: COMPARING LATVIAN AND JAPANESE MEDICAL JURISPRUDENCE

Medicne pravo ◽  
2021 ◽  
pp. 18-46
Author(s):  
A. A. Lytvynenko
Keyword(s):  
Legal System ◽  
Civil Law ◽  
Case Law ◽  
Medical Law ◽  
Medical Interventions ◽  
Patient’S Rights ◽  
The Supreme Court ◽  
Lower Courts ◽  
Right To Information ◽  
End Of Life Decision

Litigation concerning the violation of patient’s rights, which are associated with informed consent, confidentiality, right to information and medical records, as well as occasionally with end-of-life decision- making are quite frequent in common law and civil law jurisdictions, and has lasted for over a century in issues concerning malpractice, or unauthorized medical interventions and breaches of medical confidentiality. However, what could we say about medical law-related litigation in Japan? Technically, the legal system of Japan is a civil law one, but is practically post-traditional, which is reflected in extreme paternalism in healthcare and patient-physician relationships, which could be observed before the recent decades and which still has some impact on the modern Japanese medical law, despite the number of medical law-related litigation is becoming more frequent nowadays. The Japanese legislation does not have a specific “patient’s rights law” in contrast to European states, and most of the principles relating to medical malpractice derive from case law – the practice of the Supreme Court and of the lower courts. Each of the decisions strongly depends upon the factual circumstances, and the post-traditional features of the legal system may have some impact on it.

scholarly journals Czy przebaczenie niweczy skutki uprzedniego wydziedziczenia?

2017 ◽  
Vol 21 ◽  
pp. 143-153
Author(s):  
Anna Moskal
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Dominant Position ◽  
Legal Nature ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Subject ◽  
Made In

Does forgiveness nullify the effects of previous disinheritance? The legal nature of forgiveness is the subject of passionate debates among the representatives of civil law doctrine. According to the dominant position in the literature, forgiveness is an act of affection or its manifested expression of forgiveness of the perpetrator of experienced injustice and related to this grudge. This institution has been applied three times in the Civil Code — once with the donation agreement, twice in regulations of inheritance law. Article 1010 § 1 provides that a testator cannot disinherit eligible for legal portion if he forgave him. The wording of the above article indicates that accomplishment of disinheritance in case if testator eligible for legal portion has previously forgiven. The legislator did not, however, determine the effects of forgiveness in relation to previous disinheritance. In the act of 1971, the Supreme Court accepted that such forgiveness would automatically nullify the effects of disinheritance, and could be made in any form. In recent years, lower courts have begun to question the Supreme Court's position, and judges increasingly refer to the critical statements of numerous doctrines. As it was rightly stated, admitting the possibility of invoking the forgiveness made after disinheritance poses a serious threat to the realization of the testator’s will, who, by forgiving, does not necessarily want to revoke the effects of his previous disinheritance. The postulate of de lege ferenda is, according to the author of the article, giving of freedom of judging the effects of forgiveness to the courts and each examination of the forgiving testator’s will on the possible abatement of the consequences of previous disinheritance.]]>

Medical Law and Ethics

2018 ◽  
Author(s):  
Jonathan Herring
Keyword(s):  
Case Law ◽  
Medical Law ◽  
Legal Principles ◽  
Codes Of Practice ◽  
Reality Check ◽  
Law And Ethics ◽  
The Supreme Court ◽  
Feminist Perspectives ◽  
The Law ◽  
Court Of Appeal

Medical Law and Ethics covers not only the core legal principles, key cases, and statutes that govern medical law, but also explores the key ethical debates and dilemmas that exist in the field to ensure that the law is firmly embedded within its context. The title highlights these debates, drawing out the European angles, religious beliefs, and feminist perspectives which influence legal regulations. Other features such as ‘a shock to the system’, ‘public opinion’, and ‘reality check’ introduce further sociological aspects, contributing to the way in which the subject is approached. This new edition also includes coverage of new Codes of Practice issued by the Human Tissue Authority and the changes in the structure of the NHS. It also outlines important case law developments on the law on mental capacity and euthanasia, including the Charlie Gard litigation, the decision of the Supreme Court in Montgomery, and the Court of Appeal in Conway.

scholarly journals Private Prosecutions in Mauritius: Clarifying Locus Standi and Making the Director of Public Prosecutions more Accountable

2017 ◽  
Vol 10 (1) ◽  
pp. 1-34
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
African Countries ◽  
Locus Standi ◽  
Statutory Requirement ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
The Right

Case law shows that private prosecutions have been part of Mauritian law at least since 1873. In Mauritius there are two types of private prosecutions: private prosecutions by individuals; and private prosecutions by statutory bodies. Neither the Mauritian constitution nor legislation provides for the right to institute a private prosecution. Because of the fact that Mauritian legislation is not detailed on the issue of locus standi to institute private prosecutions and does not address the issue of whether or not the Director of Public Prosecutions has to give reasons when he takes over and discontinues a private prosecution, the Supreme Court has had to address these issues. The Mauritian Supreme Court has held, inter alia, that a private prosecution may only be instituted by an aggrieved party (even in lower courts where this is not a statutory requirement) and that the Director of Public Prosecutions may take over and discontinue a private prosecution without giving reasons for his decision. However, the Supreme Court does not define “an aggrieved party.” In this article the author takes issue with the Court’s findings in these cases and, relying on legislation from other African countries, recommends how the law could be amended to strengthen the private prosecutor’s position.

In Our Image: Colonial Discourse and the Anglicization of the Law of Mandatory Palestine

1995 ◽  
Vol 29 (3) ◽  
pp. 291-359 ◽  
Author(s):  
Assaf Likhovski
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Personal Injury ◽  
Colonial Discourse ◽  
Tel Aviv ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
Shoulder Blade

My story is full of holes. The first hole, or rather, ditch, was dug in 1930 by the municipality of Haifa. An Arab, Dr. Caesar Khoury, fell into the ditch and fractured his shoulder-blade.Could Dr. Khoury recover? The law of torts of mandatory Palestine was found in the Mejelle — an Ottoman code of Moslem civil law. Did the Mejelle provide a remedy in the case of personal injury? “Unfortunately,” said Judge Francis Baker, who delivered the opinion of the Supreme Court of Palestine, “the Mejelle dealt with liability for damages caused by animals to property, but it was ‘silent’ with regards to injuries caused to persons”. Therefore, Dr. Khoury could not recover.The second hole in my story belongs to a Jew, Feivel Danovitz. In 1939, Danovitz was run down by a truck in Tel Aviv. He sued the driver and the owner of the truck. The lower courts of Tel Aviv decided that if the Mejelle did not deal with liability for personal injury, that meant that there was a hole in the tort law of Palestine. Such a hole could be filled by recourse to the English common law in accordance with the provisions of Article 46 of the Palestine Order-in-Council, 1922. Since the English common law recognized liability for personal injury, Danovitz could recover.

scholarly journals Constitutionalizing Access

2021 ◽  
Vol 3 (1) ◽  
pp. 1-17
Author(s):  
Jessica Terkovich ◽  
Aryeh Frank
Keyword(s):  
Case Law ◽  
State Constitutions ◽  
The Supreme Court ◽  
Explicit Recognition ◽  
Constitutional Right ◽  
The Government ◽  
Right To Information ◽  
The Right ◽  
Right Of Access ◽  
The U.S

State constitutions receive relatively little academic attention, yet they are the source of significant substantive rights—and, when compared to the U.S. Constitution, they are relatively easily amended to comport with contemporary needs and values. Unlike the constitutions of dozens of other nations, the U.S. Constitution contains no explicit recognition of a right to information from the government, and the Supreme Court has declined to infer that such a right exists, apart from narrow exceptions. Conversely, seven states expressly memorialize the public’s right of access to government meetings and records in their constitutions. In this paper, the authors examine case law applying the constitutional right of access, concluding that the right is somewhat underutilized and rarely seems to produce an outcome clearly different from what a litigant could expect relying on state statutory rights alone. 

A imputabiliade penal nos delitos cometidos por meio de estruturas organizadas de poder

2018 ◽  
pp. 127
Author(s):  
Laís Helena de Paula Gomes Miziara ◽  
Fernando Tadeu Marques
Keyword(s):  
Legal System ◽  
Criminal Responsibility ◽  
Case Law ◽  
Domain Theory ◽  
Functional Domain ◽  
Central Focus ◽  
The Supreme Court ◽  
Domain Functional ◽  
Derecho Penal ◽  
Sobre Todo

ResumoO presente artigo analisa o domínio do fato, conforme desenvolvido por Claus Roxin, bem como seus desdobramentos: domínio da ação, domínio funcional e domínio da vontade. Para tanto, analisa-se brevemente se o Código Penal Brasileiro adotou um critério de autoria e, ainda, se tal critério é compatível com a aplicação da teoria do domínio do fato em nosso ordenamento jurídico. O enfoque central é a análise mais detalhada da teoria do domínio da vontade por meio do domínio da organização,com o intuito de averiguar como se dá a imputabilidade penal nestes casos, bem como discorrer sobre as discussões envolvendo tal teoria. Ademais, além de uma exposição doutrinária, este estudo analisa como a jurisprudência, sobretudo nacional, vem aplicando a teoria do domínio do fato e a teoria do domínio da organização, tendo como principal referência o julgamento da Ação Penal nº 470 pelo Supremo Tribunal Federal, devido à sua relevância e impacto no direito penal brasileiro.Palavras-chaves: domínio do fato; domínio da organização; Claus Roxin;AbstractDominion over the fact, as developed by Claus Roxin and its consequences: the action domain, functional domain and domain of will. Therefore, we analyze briefly if the Brazilian Penal Code adopted a criterion of authorship and, even such a criterion is compatible with the application of the fact that the domain theory in our legal system. The central focus is the most detailed analysis of the theory of the field of will through the organization’s domain, in order to find out how is the criminal responsibility in these cases as well as elaborate on discussions involving such a theory. Moreover, in addition to a doctrinal exposition, this study examines the case law, especially national, has applied the fact that the domain theory and the organization’s domain theory, the main reference the judgment of the Criminal Action No. 470 by the Supreme Court, because of their relevance and impact on the Brazilian criminal law.Key Words: Dominion over the fact; organization’s domain; Claus Roxin;ResumenEl presente artículo analiza el dominio del hecho, según lo desarrollado por Claus Roxin, así como sus desdoblamientos: dominio funcional y de la voluntad. Para ello, se analiza brevemente si el Código Penal Brasileño adoptó un criterio de autoría y, si tal criterio es compatible con la aplicación de la teoría del dominio del hecho en nuestro ordenamiento jurídico. El enfoque central es el análisis más detallado de la teoría del dominiode la voluntad a través del dominio de la organización, con el fin de averiguar cómo se da la imputabilidad penal en estos casos, así como discurrir sobre las discusiones involucrando tal teoría. Además, aparte de una exposición doctrinal, este estudio analiza cómo la jurisprudencia, sobre todo nacional, viene aplicando la teoría del dominio del hecho y la teoría del dominio de la organización, teniendo como principal referenciael juicio de la Acción Penal nº 470 por el Supremo TribunalFederal, debido a su relevancia e impacto en el derecho penal brasileño.Palabras clave: dominio del hecho; dominio de la organización; Claus Roxin.

Portugal

2015 ◽  
Author(s):  
Richard Frimston ◽  
Paula Távora Vítor ◽  
Geraldo Rocha Ribeiro
Keyword(s):  
Member State ◽  
Supreme Court ◽  
Legal System ◽  
Civil Law ◽  
Federal System ◽  
The Supreme Court ◽  
The Eu

Portugal is not part of any federal system, but is a Member State of the EU. The legal system is a civil law one. There are two main categories of courts: Administrative and Fiscal Courts, and Judicial Courts (Judicial Courts of First Instance, Courts of Appeal and the Supreme Court).

scholarly journals The Nullity of Non-Remarriage Condition in the Legal Mind and Judicial Decisions of the Islamic Republic of Iran Civil Law

2016 ◽  
Vol 10 (1) ◽  
pp. 127
Author(s):  
Ebrahim Taghizadeh ◽  
Seyed Ali Tabatabaee Far
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Analytical Method ◽  
Civil Law ◽  
Family Court ◽  
Legal Analysis ◽  
Islamic Republic ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
Islamic Republic Of Iran

This study investigates the validity of man non-remarriage condition in Iran Civil law by using the judicial and legal analysis in descriptive and analytical method. The purpose of this study is to resolve some of the ambiguities surrounding this condition of the marriage document that can be used for the Bureau of family Court, lawyers, and other legal entities. Our survey shows that although there is no clear wording of the law in the Iran legal system. According to the judicial decisions and some of the Articles such as 959 and 942 in Civil law and the 1201/7 vote of the Supreme Court, it seems that non-remarriage condition in Iran Civil law is considered as instances of general negation and void, but its nullity does not impair the validity of the marriage.

Part 2 Specific Issues of Arbitration in Brazil, 7 Non-signatories

2020 ◽  
Author(s):  
Speradino Felipe Vollbrecht
Keyword(s):  
Legal System ◽  
Case Law ◽  
Contract Law ◽  
Vital Role ◽  
Exclusive Jurisdiction ◽  
Lower Courts ◽  
The Law

This chapter studies situations under Brazilian law in which a non-signatory may be bound by an arbitration agreement to which it was not originally a party. It also discusses relevant principles in Brazilian Contract Law and Brazilian Arbitration Law, as well as the case law of the Brazilian Superior Tribunal of Justice (STJ). The STJ plays a vital role in the Brazilian legal system, as it (i) sets out the jurisprudence to guide the lower courts; and (ii) amends and harmonizes the decisions of the lower courts, where needed. The STJ also retains exclusive jurisdiction to recognize and enforce foreign awards in Brazil. When does Brazilian law become relevant to ascertain questions of binding a non-signatory to arbitration? The law applicable to the arbitration agreement is the relevant law for the purpose of deciding whether (and in which circumstances) a non-signatory can be bound to arbitration. In situations where the parties have agreed that the law applicable to the arbitration agreement is the law of Brazil, the issues of (i) whether a non-signatory can be compelled to arbitrate or (ii) whether a non-signatory can intervene in an arbitral procedure will, of course, be tested against this law.

New Directions in Mexican Legal History

1994 ◽  
Vol 50 (4) ◽  
pp. 461-465 ◽  
Author(s):  
Silvia Marina Arrom
Keyword(s):  
New Mexico ◽  
Supreme Court ◽  
Mexico City ◽  
Legal System ◽  
Legal History ◽  
The Supreme Court ◽  
New Directions ◽  
Lower Courts ◽  
Court Proceedings ◽  
Do So

These three articles, originally presented as papers at the 1992 American Historical Association meetings, represent a new direction in Mexican legal history. Whereas most legal histories have concentrated on a textual analysis of the law, these articles go beyond the laws to explore how they were implemented (as in Charles Cutter's and Michael Scardaville's pieces) and how they were made (as in Linda Arnold's piece). To do so the authors supplement printed sources with rich and previously neglected materials from local court proceedings, police logs, and supreme court archives. Taken together, the articles present a fascinating picture of how the Mexican legal system worked in practice, be it through the provincial courts of New Mexico, the lower courts of Mexico City, or the Supreme Court visitas of prisons.

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