scholarly journals Problems in Residential Tenancy Law Revealed by Holler v Osaki

2017 ◽  
Vol 48 (4) ◽  
pp. 497
Author(s):  
Mark Bennett
Keyword(s):  
Legal Assistance ◽  
Legal Rules ◽  
Financial Investments ◽  
Basic Need ◽  
The Law

This article argues that the recent series of judgments in the Holler v Osaki litigation reveals concerning features of our residential tenancy law contained in the Residential Tenancies Act 1986 and its application by the Tenancy Tribunal and the courts. The law relating to residential tenancies is important: it regulates both tenants' ability to access the basic need of shelter and to satisfy their desire for home, and the financial investments of landlords. It is meant to allow landlords and tenants to understand their rights and obligations so that they may apply the law to their situations without legal assistance. However, Holler v Osaki illustrates the vagueness and therefore uncertainty concerning key legal rules within the Act, which led to the pre-existing understanding of the law being upended and the paralysis of the Tenancy Tribunal's ability to deal with careless damage. This article also highlights inconsistencies in the decisions of Tenancy Tribunal adjudicators, who applied completely different interpretations of the law to substantially identical facts. 

scholarly journals A Comparative Viewpoint on Illegal Contracts: In Favor of Flexibility and Proportionality

Global Jurist ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Rossella Esther Cerchia
Keyword(s):  
Dense Network ◽  
Legal Rules ◽  
The Law ◽  
Laws And Regulations

Abstract In today’s society, a dense network of laws and regulations presides the actions of all people. And it is so extensive that any number of activities – including the formation of contracts – is capable of breaking the law. This is why it is even more important, nowadays, to reconsider the issue of contracts that violate legal rules. The trend in favor of flexible remedies reveals that the rigidity of the more traditional solutions might not be the best choice in this day and age.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

Why Psychoanalysis Matters to Law

2017 ◽  
Author(s):  
Anne C. Dailey
Keyword(s):  
Lived Experience ◽  
Criminal Law ◽  
Legal Theory ◽  
Practical Knowledge ◽  
Individual Freedom ◽  
Human Beings ◽  
Legal Doctrine ◽  
Legal Rules ◽  
The Law ◽  
Theoretical Foundations

This chapter describes the contribution contemporary psychoanalysis has to make in three specific areas: legal theory, legal doctrine, and adjudication in the courtroom. Psychoanalysis improves the law’s theoretical foundations by modifying its foundational presumption of rationality. Psychoanalysis also helps to reform legal doctrine by identifying those particular subject matter areas, primarily family law and criminal law, where the law’s presumption of rationality leads to unjust legal rules. With domestic violence as its example, this chapter shows how psychoanalysis offers a body of practical knowledge that humanizes the law by bringing legal rules into line with actual, everyday lived experience. And finally, psychoanalysis reveals the deep tension between the law’s focus on individual moral responsibility for behavior and the law’s objective methods of proof in the courtroom. Psychoanalytic insights into the art of proving what really happened in a case can move law in the direction of a more empathic and forgiving model of judging. Overall, the psychoanalytic study of the law unveils the damaging consequences of the law’s rationalist assumptions about who we are as human beings, and offers an alternative, humanistic perspective in line with law’s foundational ideals of individual freedom and systemic justice.

scholarly journals O rozgraniczaniu statutów i wsysaniu regulacji prawnej (na przykładzie prawa stosowanego do oceny różnych aspektów powołania i funkcjonowania wykonawcy testamentu i zarządcy sukcesyjnego przedsiębiorstwem)

2020 ◽  
pp. 159-177
Author(s):  
Maksymilian Pazdan
Keyword(s):  
International Law ◽  
Legal System ◽  
Private International Law ◽  
Legal Basis ◽  
Legal Rules ◽  
Eu Regulation ◽  
The Will ◽  
The Law ◽  
The Eu

The position of the executor of the will is governed by the law applicable to succession (Article 23(2)(f) of the EU Regulation 650/2012), while the position of the succession administrator of the estate of a business of a physical person located in Poland is subject to the Law of 5 July 2018 on the succession administration of the business of a physical person (the legal basis for such solution is in Article 30 of the EU Regulation 650/2012). However, if the court needs to determine the law applicable to certain aspects of appointing or functioning of these institutions, which have a nature of partial or preliminary questions, these laws will apply, as determined in line with the methods elaborated to deal with partial and preliminary questions in private international law. The rules devoted to the executors of wills are usually not self-standing. In such situations, the legislators most often call for supportive application of the rules designed for other matters existing in the same legal system (here — of the legis successionis). This is referred to as the absorption of the legal rules.

scholarly journals PENGEMBALIAN ASET TINDAK PIDANA KORUPSI PELAKU DAN AHLI WARISNYA MENURUT SISTEM HUKUM INDONESIA DALAM MEWUJUDKAN NEGARA HUKUM KESEJAHTERAAN

LITIGASI ◽  
2016 ◽  
Vol 16 (2) ◽  
Author(s):  
Haswandi Haswandi
Keyword(s):  
Law Enforcement ◽  
Welfare State ◽  
Legal Assistance ◽  
Mutual Legal Assistance ◽  
Civil Lawsuit ◽  
The Family ◽  
Asset Recovery ◽  
The Law ◽  
Close Relatives ◽  
Cover Up

Criminal laws regulating asset recovery of corruption today experience a paradigm oversight since it only relies on the money substitute in corruption under Article 18 of Law No. 31, 1999 concerning The Eradication of The Crime of Corruption as amended with the Law No. 20, 2001 in which asset recovery is addressed only to the convict. In fact, modus to cover up the proceed of corruption usually involves the family, close relatives or confidants including the heirs. The obstacle in recovering the asset is that civil lawsuit is not yet effective as the means to recover the asset, the organization of law enforcement, the ratification of 2003 UNCAC that is also not yet effectively implemented in Indonesian law, and the laws against corruption that are weak. Future concept of law in asset recovery of proceed of corruption by the culprit and the heirs in order to materialize a legal welfare state should at least done through progressive laws i.e. reformation of law, optimization of Mutual Legal Assistance, the widening of authority implemented by the Eradication Commission of Corruption in recovering the asset as the proceed of corruption, the strong inter-agency coordination of law enforcements, and the urgency to promulgate the Recovery Asset Act.Keyword: Recovery; Proceed of Corruption; HeirsABSTRAKPerangkat hukum pidana dalam mengembalikan aset hasil tindak pidana korupsi pada saat ini mengalami kekeliruan paradigma karena hanya mengandalkan uang pengganti kejahatan korupsi yang terkandung dalam Pasal 18 Undang-Undang Nomor 31 Tahun 1999 Tentang Pemberantasan Tindak Pidana Korupsi sebagaimana telah diubah dengan Undang-Undang Nomor 20 Tahun 2001, di mana Pengembalian harta atau kekayaan hanya ditujukan kepada terpidana. Padahal modus menyembunyikan harta kekayaan hasil korupsi biasanya dengan menggunakan sanak keluarga, kerabat dekat atau orang kepercayaannya termasuk para ahli warisnya. Hambatan pengembalian aset tindak pidana korupsi disebabkan belum efektifnya gugatan perdata sebagai sarana untuk mengembalikan aset hasil kejahatan korupsi, kelembagaan penegak hukum, belum efektifnya Ratifikasi UNCAC 2003 dilaksanakan dalam hukum Indonesia, serta kelemahan di ranah regulasi tindak pidana korupsi. Konsep hukum mendatang dalam pengembalian aset tindak pidana korupsi pelaku dan ahli warisnya dalam mewujudkan negara hukum kesejahteraan, setidaknya ditempuh dalam beberapa langkah hukum progresif, yakni perbaikan regulasi peraturan perundang-undangan, optimalisasi Bantuan Hukum Timbal Balik, Perluasan kewenangan Komisi Pemberantasan Korupsi dalam Pengembalian Aset hasil tindak pidana korupsi, Penguatan koordinasi antar lembaga penegak hukum, serta menyegerakan menyelesaikan Undang-Undang Pengembalian Aset.Kata Kunci: Pengembalian; Aset Korupsi; Ahli Waris 

scholarly journals RELEVANSI HUKUM DAN HAK ASASI MANUSIA DENGAN AGENDA REFORMASI: DIMENSI NASIONAL DAN INTERNASIONAL

2020 ◽  
Vol 5 (2) ◽  
pp. 350
Author(s):  
Ismail Marzuki ◽  
Faridy Faridy
Keyword(s):  
Human Rights ◽  
Social Interactions ◽  
Social Order ◽  
Reform Agenda ◽  
Legal Rules ◽  
Recognition Respect ◽  
Protection Of Human Rights ◽  
The Law ◽  
The Difference ◽  
The One

In life, humans certainly cannot be separated from their social interactions with others. Friction between individuals or between nations is something that is inevitable. That is because the understanding of the legal system and culture of a different society. The difference in opinion certainly needs to be harmonized by not locking up the meeting room of everyone's expression. From here, the existence of legal rules/norms on the one hand becomes important in people's lives. On the other hand, the recognition, respect and protection of human rights are also important to be accommodated. Therefore, this article examines the law as a means of maintaining social order, and human rights as a set of rights that describe the existence of human freedom in expressing their actions, and how relevant they are to the reform agenda, namely enforcing the law against violators of human rights seriously, both in national and international.

scholarly journals KAJIAN YURIDIS UNDANG-UNDANG NOMOR 18 TAHUN 2017 TENTANG PELINDUNGAN PEKERJA MIGRAN INDONESIA

GANEC SWARA ◽  
2019 ◽  
Vol 13 (2) ◽  
pp. 230
Author(s):  
LELISARI LELISARI ◽  
IMAWANTO IMAWANTO ◽  
FAHRURROZI FAHRURROZI
Keyword(s):  
Migrant Workers ◽  
Research Method ◽  
Legal Assistance ◽  
Conceptual Approach ◽  
Government Regulations ◽  
The Law ◽  
Rubber Article

   Since the enactment of Law No. 18 of 2017 concerning the Protection of Indonesian Migrant Workers (PPMI Law), there is a new term as a substitute for Indonesian Labor (for the next term TKI) to become Indonesian Migrant Workers (hereinafter referred to as PMI). By carefully reading the law governing TKI or PMI, namely Law Number 18 of 2017 concerning PPMI, it is made to correct various weaknesses in Law No. 39 of 2004, in which the main objective is to improve the law. thus TKI or PMI are increasingly protected. In fact, this law also still has some weaknesses. The research objective is to analyze weaknesses in Law No. 18 of 2017 concerning PPMI. The method used is a normative juridical research method with a statute approach and a conceptual approach. From the results of the study, there are five weaknesses in the PPMI Law, namely: There is inconsistency in implementing the rules, the PPMI Law still holds potential institutional conflicts regarding the authority of Ministries and Institutions / Non-Ministerial Bodies in the management of migrant workers protection, Articles in the PPMI Law concerning coaching and supervision also has the potential to be a rubber article because it does not elaborate on what forms of supervision and supervision should be carried out. There is no specific article that affirms the specific needs of PMI protection (especially women) who work in the domestic sector. Regulations regarding legal assistance for PMI are not regulated in detail. As a suggestion to immediately revise the PPMI Law, then it must be guarded and completed 27 regulations derived from the mandate of the PPMI Law consisting of 12 Government Regulations, 11 Ministerial Regulations, 3 Agency Regulations and 1 Presidential Regulation

scholarly journals PASAL 54 KITAB UNDANG-UNDANG HUKUM ACARA PIDANA DALAM ELABORASI HUKUM PIDANA ISLAM

2021 ◽  
Vol 4 (1) ◽  
pp. 48-69
Author(s):  
Diah Ratri Oktavriana ◽  
Nasiri Nasiri
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Legal Service ◽  
Legal Assistance ◽  
Legal Aid ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Law ◽  
The Right

This research is a normative research. One of the fulfillment of human rights is justice in equalizing the position of every citizen before the law, as stated in Article 27 paragraph (1) of the 1945 Constitution of the Republic of Indonesia. The right to equality before the law or what is commonly referred to as equality before the law is a principle that provides recognition and protection of human rights for every individual regardless of one's background. Therefore, it is true that Law Number 16 of 2011 concerning Legal Aid for People Who Are Less Capable to Guarantee Constitutional Rights of Citizens for Justice and Equality before the Law emerged. Legal aid is a legal service provided by advocates to the community seeking justice In the realm of criminal cases, the provision of legal assistance is described in Article 54 of the Criminal Procedure Code which explains that in the interests of defense, a suspect or defendant has the right to receive legal assistance from one or more legal advisers during the time and at each level of examination. The provision of legal assistance must be based on the principle of equality before the law as stated in the explanation of Law Number 8 of 1981 concerning Criminal Procedure Law. From the various analyzes that have been carried out, in the perspective of Islamic criminal law it can be concluded that the principle of equality before the law as described in Article 54 of the Criminal Procedure Code is equivalent to an order to provide legal aid which in Islamic criminal law is spelled out in Surah Al-Maidah verse 2 which states that as a fellow humans are ordered to help each other as a form of horizontal worship to fellow humans (habl minan-nas). In addition there are many more both in the Al Qur'an and the hadith of the prophet regarding the application of the principle of equality before the law.

scholarly journals Regional Legal Assistance

Rechtsidee ◽  
2015 ◽  
Vol 2 (1) ◽  
pp. 1
Author(s):  
Abdul Fatah
Keyword(s):  
Public Awareness ◽  
Access To Justice ◽  
Legal Assistance ◽  
Legal Counsel ◽  
Legal Aid ◽  
Equitable Distribution ◽  
Legal Implications ◽  
The Law ◽  
The Right ◽  
Aid Policy

Legal aid policy in the area carried out on several considerations including: Implementation of the authority given to the legal aid act, granting the guarantee and protection of access to justice and equality before the law in the area, equitable distribution of justice and increase public awareness and understanding of the law, and legal implications that accompanied the emergence of the right to legal counsel without pay and the right to choose the legal settlement. How To Cite Fatah, A. (2015). Regional Legal Assistance. Rechtsidee, 2(1), 1-10. doi:http://dx.doi.org/10.21070/jihr.v2i1.7

The Neo-Behavioral Approach to the Judicial Process: A Critique

1963 ◽  
Vol 57 (3) ◽  
pp. 593-603 ◽  
Author(s):  
Wallace Mendelson
Keyword(s):  
Legal System ◽  
The Other ◽  
Behavioral Approach ◽  
Lower Court ◽  
Judicial Process ◽  
Legal Rules ◽  
Court Judge ◽  
Good Medicine ◽  
The Law ◽  
The Times

A generation ago “legal realists” led by Jerome Frank and Karl Llewellyn dismissed law as a myth—a function of what judges had for breakfast. The important thing, they insisted, was what a court did, not what it said. No doubt this was good medicine for the times. Yet, however broad Frank's 1930 language, later on the bench he loyally acknowledged the compulsive force of legal rules. As a lower court judge, he decided cases in accordance with what he found the law to be—and on occasion he made clear in addenda what he thought it ought to be.Llewellyn, too, changed his mind. In 1934 he had said, “The theory that rules decide cases seems for a century to have fooled, not only library-ridden recluses, but judges.” Seventeen years later he confessed that his earlier behavioral descriptions of law contained “unhappy words when not more fully developed, and they are plainly at best a very partial statement of the whole truth.”In short, after their initial enthusiasm, these and other legal realists recognized that there is and must be law in the judicial process, as well as discretion. This was inevitable, for society can no more dispense with order and coherence than it can deny the demands of changing circumstance. We must have stability, yet we cannot stand still; and so the legal system inevitably has both static and dynamic qualities. Holmes put it in a thimble: “The … law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.”

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