scholarly journals THE SEVERAL UNLAWFUL ACT AFTER NUPTIAL AGREEMENT IN INDONESIA

2021 ◽  
Vol 5 (2) ◽  
pp. 328
Author(s):  
Heriyanti Heriyanti ◽  
Elvira Fitriyani Pakpahan ◽  
Diana Diana
Keyword(s):  
Civil Law ◽  
Third Parties ◽  
Public Order ◽  
Constitutional Court ◽  
Research Results ◽  
The Third ◽  
Approach Method ◽  
The Moment ◽  
The One ◽  
Marital Agreement

The rule of Constitutional Court has eased on the essential interpretation inherent in the prevailing prenuptial agreement. The prenuptial agreement is understood no longer as the one drawn up prior to the marital process but thereafter as well, as long as it is not against the norms of religion, public order, morals, and third parties. Essentially, it is in accordance Act on Marriage and seemingly more comprehensive than the interpretation of marital agreement of inherence at civil law. The approach method used is a normative juridical approach, the research results obtained state that the implication that the marital agreement can be drawn up either after or before the nuptial execution. The nuptial agreement is compulsory to be legalized on the notarial deed before the execution. The nuptial agreement before or at the moment of marital execution process under the terms that it does no harm to the third part

En torno a la práctica desaparición de una competencia. El art. 149.1.6 CE y las especialidades procesales autonómicas

2012 ◽  
pp. 103-124
Author(s):  
Miguel Ángel CABELLOS ESPIÉRREZ
Keyword(s):  
Civil Law ◽  
The State ◽  
The Other ◽  
Constitutional Court ◽  
Narrow Line ◽  
Autonomous Communities ◽  
Other Hand ◽  
The One ◽  
Substantive Law

LABURPENA: Konstituzioak, 149.1.6 artikuluan, ez zion atea itxi nahi izan autonomia- erkidegoen parte-hartzeari araudi prozesalaren erregulazioan, eta, berez, Estatuari legegintza prozesalaren gainean eman zion eskumen esklusiboa mugatua da; izan ere, beren zuzenbide substantiboaren berezitasunetatik eratorritako espezialitate prozesalen gaineko eskumena aitortu baitzien, aldi berean, autonomia-erkidegoei. Eskumen hori batez ere zuzenbide zibil propioa duten erkidegoetan erabiltzekoa zen, baina ez haietan bakarrik, ez eta soilik gai honi dagokionean ere. Konstituzio Auzitegiak, baina, hain modu murriztailean jokatu du konstituzio-arau hori interpretatu eta aplikatu behar izan duenean (47/2004 epaia da salbuespen bakarra), non autonomia-erkidegoen espezialitate prozesalen gaineko eskumena ezerezean geratu baita. Artikulu honen asmoa honako hau da: alde batetik, egoera honetara nola heldu garen aztertzea; bestetik, 21/2012 epaia analizatzea, zeinak Konstituzio Auzitegiaren ildo murriztailea berresten duen; eta, azkenik, gaurko egoeran beste hautabide batzuk eskaintzea, autonomia-erkidegoek espezialitate prozesalen gainean daukaten eskumena (haietako batzuk erabiltzen ari direna) desagertzeko zorian dago-eta Konstituzio Auzitegiaren jurisprudentzian. RESUMEN: La Constitución, en su art. 149.1.6, no quiso cerrar la puerta a la intervención de las CCAA en la regulación de la normativa procesal y otorgó al Estado una competencia exclusiva sobre legislación procesal cuya exclusividad es, en realidad, limitada, dada la simultánea atribución a las CCAA de la competencia para dictar las necesarias especialidades procesales derivadas de las particularidades de su derecho sustantivo. Ello debía ser especialmente útil en aquellas comunidades con Derecho civil propio, aunque no solo en estas ni únicamente respecto de este ámbito material. Ocurre sin embargo que el Tribunal Constitucional, en las ocasiones en que ha debido interpretar y aplicar el mencionado precepto constitucional, lo ha hecho de modo tan restrictivo que, con la única y aislada excepción de la STC 47/2004, la competencia autonómica relativa a las especialidades procesales ha quedado reducida a la nada. El propósito de este artículo es, por un lado, el de examinar cómo se ha llegado a este punto; por otro, estudiar el último de los casos relevantes, la STC 21/2012, que confirma la citada línea restrictiva seguida por el Tribunal; y finalmente apuntar algunas alternativas a la situación a la que se ha llegado, en que la competencia de las CCAA en materia de especialidades procesales (que por otra parte algunas están ejerciendo) se halla condenada a la práctica desaparición en la jurisprudencia constitucional. ABSTRACT: The Constitution in section 149.1.16 has not closed the door to the Autonomous Communities intervention in the regulation of the procedural provisions and conferred the State the exclusive power over the procedural legislation albeit its exclusivity is limited by the simultaneous allocation to the Au tonomous Communities of the power to enact the necessary procedural specifities that come from the special features of its substantive law. That should be extremely useful in those Communities with their own Civil law, even though not only in those and not solely regarding this material field. But what happens is that when the Constitutional Court had to interpret and apply the aforementioned constitutional provision, it has done it so narrowly that with the only and sole exception of the Constitutional judgment 47/2004 the power is almost reduced to nothing. The purpose of this article is on the one hand to examine how this is been reached; and on the other hand, to study the last relevant ruling, judgment 21/2012, which confirms the aforementioned narrow line of interpretation followed by the Court; and finally to point at some alternatives to the situation that has been created in which the power of the Autonomous Communities regarding the procedural specificities (and which they are exercising anyway) is doomed to the practical disappearance according to the constitutional caselaw.

scholarly journals TO THE QUESTION OF THE NEED TO INTRODUCE A SYSTEMATIC APPROACH TO THE CONSIDERATION OF CASES ON AMENDMENT OR TERMINATION OF CIVIL LAW CONTRACTS

2020 ◽  
Vol 6 (72) (2) ◽  
pp. 102-109
Author(s):  
N. A. Ablyatipova ◽  
E. A. Ashurova
Keyword(s):  
Systematic Approach ◽  
Civil Law ◽  
External Environment ◽  
The Other ◽  
The Third ◽  
Financial Costs ◽  
The Will ◽  
Business Entities ◽  
The Stability ◽  
The One

For the Russian reality, the stability and stability of the execution of transactions and obligations in the context of frequent and unpredictable changes in the external environment is becoming an increasingly important component of economic and legal relations. Modern civil legislation, on the one hand, guarantees the stability of existing legal relations, on the other, allows for the modification and termination of contracts both at the mutual desire of the parties, and in connection with the will of the other party, if it is granted such a right. The third option is a way to change or terminate the contract in court. However, at present, there are many subjective and objective circumstances that are not provided for by the parties when concluding the contract, which make it difficult or even impossible to continue performing obligations under it while maintaining the conditions that were originally laid down in it. Not always resolving of such situations envisaged by the legislator, but because there are situations when the parties relations are further complicated by the inability to quickly and effectively solve the current conflict, especially if parties are business entities and any delay can lead to significant financial costs not only of the parties of legal relations, but also third parties whose rights are directly or indirectly affected.

scholarly journals Confidentiality - A Two-Appeal Principle

2018 ◽  
Vol 1 (3) ◽  
pp. 53
Author(s):  
Dr. Brunela Kullolli
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Good Faith ◽  
The Third ◽  
Article Analysis ◽  
The Common ◽  
The Moment ◽  
Contractual Relation

This article analysis relates to the creation of conditions for the conclusion of the contract.This is the moment when the negotiating parties determine whether there will be a contract or not. This is the stage that in the best case is finalized with the contract signing.Known as the pre-contractual stage, it is considered as the foundation of the contractual relationship.Conduct in good faith at the stage of entering into a contract would also avoid causing potential damages and liability".- The first part gives , of Completion of the contract in good faith, is a legal requirement under the Civil Laë tradition, but unlike the requirement for pre-contractual trust, finds place in the Common Law tradition.In this part of the study, the detailed treatment of the manner of performance of the contract will be set aside, focusing mainly on the obligations that dictate its fulfillment in good faith and the liability incurred in the event of its absence . The second part is concentrated, Contract Interpretation. The third part will be treated as a brief and comparative overview of the common law of Civil Law in the interpretation of the contract, taking into account the main interpretative criteria, to underline the main differences between them. Among all the criteria, the focus will be on trust, which is sanctioned as a special criterion of interpretation by the Civil Law countries. The fourth part analysis the validity of the contract.In this last part of the chapter, I will try to clarify the confusion created between the rules of contract validity and the rules of conduct, as well as the role and impact of the breach of the trust principle in the validity of the contract. Conclusions .Regarding the situations that arise for the damage that comes to the parties from non-fulfillment of obligations and breach of the principle of good faith during the contract's formation, it is necessary to clarify how the type of damage that came during the pre-contractual phase and which interest has failed to realize one of the parties. In fact, this is a genuine duty of the court which, as the case may be, must specify exactly: the responsibility of the parties, the interest that has been violated, the type of damage that has been caused.Keywords: contract law ,internal law ,contractual relation,internal contract interpretation, civil law

The Federal Republic of Germany

2021 ◽  
pp. 39-114
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Civil Law ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Constitutional Protection ◽  
Basic Law ◽  
German Model ◽  
Hans Kelsen ◽  
The Third Reich ◽  
The One

This chapter looks at the German system of judicial review of the constitutionality of legislation, which has been borrowed by virtually all of the civil law countries in the world as being the one that is the most compatible with their legal system. The historical lessons drawn from Germany’s experience with the Third Reich made Germans acutely aware of the need for constitutional protection of rights growing out of the great historical wrongs of Nazism and of the Holocaust. Thus, the fundamental core explanation of the origins and growth of German judicial review is that it is a rights from wrongs phenomenon. That being said, the growth of German judicial review was made easier by the fact that the German Basic Law constituted the Constitutional Court to act as a federalism and separation of powers umpire. The German Constitutional Court has performed those umpiring function from 1949 down to the present day with great deftness and ability. Thanks to the great scholar, Hans Kelsen, the Germans borrowed a greatly modified system of U.S. judicial review, which was specially designed to work well in civil law countries. The German Model has, in turn, been borrowed by every oother country discussed in Volume II of my two part book series.

The Soul of Europe: Two Different Ways of Thinking Germany’s Debt to Greek Culture

2020 ◽  
pp. 140-160
Author(s):  
Simona Forti
Keyword(s):  
Philosophical Anthropology ◽  
Third Reich ◽  
The Other ◽  
Greek Philosophy ◽  
German Philosophy ◽  
Greek Culture ◽  
The Third ◽  
The Third Reich ◽  
The Moment ◽  
The One

This chapter compares two opposing ways of conceiving the idea of the “Soul of Europe”. Both of them trace the origin of the idea to Greek philosophy and especially Plato. On the one hand, it is the Platonism adopted by the so-called 'Nazi philosophical anthropology' that interprets the Germany of the Third Reich, its Idea of Rassenseel, as the moment in which not only the debt of German culture to Greek culture is paid but in which Germany will finally be able to demonstrate that it is the only true heir of ancient Greece and that for this reason it must conquer the whole of Europe. On the other hand, as an example of an opposite vision, it is the work of Jan Patocka who is convinced that German philosophy can 'today' represent the soul of Europe, but for whom both the notion of soul and that of Europe are constitutively open and infinite, connected to the concept of a debt that can never be settled.

scholarly journals Pertanggungjawaban Ahli Waris Notaris sebagai Pejabat Umum atas Akta Notaris yang Menimbulkan Kerugian Para Pihak

Lentera Hukum ◽  
2018 ◽  
Vol 5 (2) ◽  
pp. 322
Author(s):  
Anang Ade Irawan ◽  
A. Rachmad Budiono ◽  
Herlin Wijayanti
Keyword(s):  
Civil Law ◽  
Third Parties ◽  
Time Limit ◽  
Public Official ◽  
Research Results ◽  
Notary Public ◽  
The Government

This article discusses the provision of Article 65 of Notary Law (UUJN) which contains the unclear time limit of the notary's responsibility in performing his duties as a public official. The article does not provide explicit explanations to the extent to which the notary no longer holds the responsibility after termination or death to the authentic deeds made. The purpose of this study is to know, identify and analyze the form of accountability of notary heirs as general officials on notarial deeds that cause harm to the parties. By using normative research, there are research results among others. First, based on the theory of fautes personalles, the theory which states that losses to third parties are imposed on officials who because of their actions have caused harm. Second, according to the theory of inheritance that becomes the object of the estate is a wealth in the sense of assets and liabilities. Unlawful acts of civil law are per-artificial wrong done by individuals, so it can not be associated with heirs. The government should make a clearer regulation of the deadline of notary responsibility by adding a separate chapter to the UUJN that regulates notary responsibility. Keywords: Responsibility, Notary Public Notary, Public Official, Notary Deed

scholarly journals Akibat Hukum Perjanjian Kawin terhadap Pihak Ketiga dalam Perspektif Putusan Mahkamah Konstitusi No. 69/PUU-XIII/2015

2021 ◽  
Vol 2 (1) ◽  
pp. 207-211
Author(s):  
Putu Trisna Witariyani ◽  
I Nyoman Sujana ◽  
Ni Made Puspasutari Ujianti
Keyword(s):  
Research Method ◽  
Third Parties ◽  
Third Party ◽  
Court Decision ◽  
Constitutional Court ◽  
The Third ◽  
The Third Party ◽  
Legal Consequences ◽  
Husband And Wife

Property problems in marriage often occur. With this, the couple can make a marriage agreement for those who want to separate their marital assets. One of the marriage agreement arrangements, which is mentioned in paragraph (1), namely in Article 29 of Law Number 1 of 1974 concerning marriage states that a marriage agreement can be made before the marriage takes place and binds a third party as long as the third party is involved. However, after the issuance of the Constitutional Court Decision No. 69 / PUU-XIII / 2015 the arrangement of the agreement in marriage has changed. This study aims to determine the arrangement of the marriage agreement after the Constitutional Court Decision No. 69 / PUU-XIII / 2015 and knowing the legal consequences for third parties with the existence of a marriage agreement after the issuance of the Constitutional Court Decision No. 69 / PUU-XIII / 2015. The research method used is the Normative research method where the assessment is based on legal materials from the existing literature. The results of the analysis show that the marriage agreement arrangements have changed since the Constitutional Court Decision, where the amendment is that the marriage agreement can be made before or after marriage, applies after marriage unless the parties determine otherwise, and also the marriage agreement can be changed and revoked according to the agreement of the husband and wife. . If the agreement in marriage is registered, the agreement will be enforced for the third party. Couples who want to make a marriage agreement should follow the existing rules so that the marriage agreement is valid and does not harm third parties.

scholarly journals Tinjauan Yuridis Akibat Hukum Perjanjian Harta Bersama yang Dibuat Oleh Suami Istri Setelah Perkawinan Berdasarkan Putusan Mahkamah Konstitusi Nomor 69/PUU-XIII/2015

Wajah Hukum ◽  
2019 ◽  
Vol 3 (1) ◽  
pp. 65
Author(s):  
Abdul Hariss ◽  
Nurul Wulan Kasmara
Keyword(s):  
Islamic Law ◽  
Constitutional Court ◽  
First Principle ◽  
Legal Research ◽  
Material Sources ◽  
Approach Method ◽  
Pros And Cons ◽  
Legal Consequence ◽  
The One ◽  
Husband And Wife

A marriage is a commitment between two people, in this case a man and woman, with material purpose to build a happy and everlasting family (household) based on Belief in the one and only God which is the first principle of Pancasila(Five Principles). Asset/property issue may arise due to marriage. The development of society’s mindset lead them to enter into a prenuptial agreement before they get married considering that both husband and wife are able to earn asset/property. Besides that, there are many other reasons to enter into a prenuptial agreement. Basically there is no mixture of wealth in marriage between husband and wife. The bconcept of shared assets originally came from customsnor traditions that developed in indonesia. This concept is then suported by islamic law and positive laws that apply in our country. Then a joint proprty agreement was made.  Prenuptial Agreement is an agreement which is made by two people (betrothed couple) before they get married. Prenuptial Agreement had been stipulated in Article 29 Law No. 1 of 1974. However, since the Constitutional Court issued the Decision No. 69/PUU-XIII/2015, Prenuptial Agreement has several modifications which are presently being pros and cons in society. The matter which is being researched in this thesis is: what is the legal consequence of a prenuptial agreement which is made after marriage and based on the Decision of Constitutional Court No. 69/PUU-XIII/2015. The approach method which is used herein is normative legal research. The law material sources are primary law material and secondary law material in form of books and Legislation. Data analyses used in this research are processing and analyzing the data qualitatively andthen descriptively drawn up. The result of this research found the differences between Prenuptial Agreement which is stipulated in Article 29 Law No. 1 of 1974 and the Prenuptial Agreement which is stipulated in the Decision of Constitutional Court No. 69/PUU-XIII/2015

scholarly journals Analysis of The Marriage Treaty and Legal Approach Due Judging from The Draft of Civil Code

Jurnal Akta ◽  
2018 ◽  
Vol 5 (3) ◽  
pp. 669
Author(s):  
Takwim Azami ◽  
Akhmad Khisni
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Court Decision ◽  
Constitutional Court ◽  
Men And Women ◽  
Materials Used ◽  
Marital Agreement ◽  
Source Materials ◽  
Husband And Wife

The continued development of the situation in society at large prospective marriage couples who decided to make a marriage agreement. This is because both the men and women capable of generating wealth each and there are many other reasons why it made a pact to marry. Mating agreement is the agreement made by two people (prospective husband and wife) before marriage. Mating Agreement provided for in article 29 of Act No. 1 of 1974 marriage but with the birth of the constitutional court's decision No. 69 / PUU-XIII / 2015 there are some changes in the Marriage Covenant which is still a Pro Cons in society. The problems examined in this study is: how marital agreement in terms of the book of Civil Law. The method used is a normative legal approach. Source materials used law is the source of primary legal materials and sources of secondary legal materials such as books and law legal materials collection techniques performed by the document study reading and studying the legislation regulations. The analysis of legal materials in this study, conducted by processing and analyzing qualitative and descriptive poured. The result of the first conclusion that the arrangement agreement are married in Indonesia in the Act including the Civil Code, the Marriage Act No. 1 of 1974, KHI and the Constitutional Court Decision No. 69 / PUU-XIII / 2016.Keywords: Marriage Agreement; Effects; Legal Approach

scholarly journals L’interprétation des clauses base-réclamation dans les contrats d’assurance de responsabilité civile au Québec

2021 ◽  
Vol 88 (1-2) ◽  
pp. 53-90
Author(s):  
Thomas Stéphane Nguema Evie
Keyword(s):  
Direct Action ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
Public Order ◽  
Insurance Law ◽  
The Third ◽  
The Law ◽  
Main Effects ◽  
Order Set

This article addresses the question of the interpretation of base-claim clauses in Quebec insurance law. Defined mainly by the doctrine as clauses whose effects consist in assimilating the claim to the claim of the victim, the use of base-claim clauses raise several questions as to their legality on reading articles 2396 of the civil code and 2414 of the same. coded. While the first defines the claim as a damaging event, the second article states the relative public order nature of the provisions of Chapter XV of Title 2 of Book V of the Civil Code, among which is Article 2396 of the Civil Code. Article 2414 states that the provisions of Chapter XV may be subject to a derogation if this benefits the policyholder, the insured, the beneficiary or does not infringe the rights of third parties. However, one of the main effects of base-claim clauses is to considerably restrict the direct action of the third party towards the insurer but, also, to place on the back of the insured the lack of diligence of the injured third party. In the silence of the law, it is then up to the courts to assess the compliance of the basis-claim clauses with public order set out in article 2414 through virtual public order. This article attempts to suggest means of interpretation aimed at establishing the illegality of base-claim clauses.

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