scholarly journals Pravno-povijesni prikaz razvoja regulacije instituta izmoljene posudbe u hrvatskom pravu

2020 ◽  
Vol 41 (2) ◽  
pp. 567-586
Author(s):  
Jelena Kasap ◽  
Višnja Lachner
Keyword(s):  
Comparative Analysis ◽  
Legal Theory ◽  
Practical Importance ◽  
Civil Law ◽  
Legal Framework ◽  
Legal Practice ◽  
Legal Provision ◽  
Legal Context ◽  
Legal Effect ◽  
Basic Purpose

The two legal institutes, the precarium, i.e. precarious loan and loan for use are often identified in everyday speech even in the legal context, and revocability is emphasized as the only feature of their differentiation. Taking into account the opinion of legal theorists according to which the legal effect of the precarium can be achieved by applying the rules on borrowing, some of the modern codifications of civil law failed to define the precarious loan as an independent legal institute. Nevertheless, the Croatian legislator, guided by the historical application of the Austrian General Civil Code in the Croatian territory, standardized the institute of the precarious loan by a separate legal provision and thus defined it by the subtype of the contract of loan for use. The very rare use of this institute in legal practice as well as the lack of interest for this institute in modern civil law theory make the nature of this institute still insufficiently clear. A comparative analysis of legal theory, but also of foreign legislation that served as a basis for drafting the legal framework of borrowing in Croatian law will try to determine the features of the precarious loan and point to cases where the application of this institute is particularly opportune. Despite the similarity of the two mentioned legal institutes of loan for use and the precarious loan that will be pointed out in the content, the basic purpose of this research is to emphasize the importance of each institute taking into account the features that distinguish them and confirm that both institutes have their own purpose, practical importance and application in Croatian law.

Reasons for EU double standards: comparative overview of the cases of the Erased and the Non-citizens

2015 ◽  
Vol 43 (2) ◽  
pp. 302-318 ◽  
Author(s):  
Sanja Vrbek
Keyword(s):  
Human Rights ◽  
Comparative Analysis ◽  
Case Studies ◽  
Legal Framework ◽  
Violent Conflict ◽  
Local Context ◽  
Human Rights Violations ◽  
Double Standards ◽  
Legal Provision ◽  
The Eu

On the basis of a comparative analysis of the case studies of the Slovenian Erased and the Latvian Non-citizens, the paper endeavors to identify the reasons for the EU involvement in the latter, but not the former case. These two situations are recognized as similar enough to be compared, and endure the counter-argumentation that the different EU approach is conditioned by the specifics of the local context, not by double standards. Hence, the paper comes to a conclusion that the involvement in Latvia has been conditioned by the fear of the potentially violent conflict, the existence of a proactive kin state, and a minority, significant in number, as well as the explicitly discriminatory legal framework that was in collision with the EU economic acquis. Thus, it has been inferred that double standards occur due to the lack of EU and international interest in these situations of human rights violations, where the powerful kin state and the minority, significant in number, are absent, do not have a potential to develop into a violent conflict, do not derive from explicitly discriminatory legal provision, and do not challenge the fundamental market freedoms of the EU.

scholarly journals The barratry of the shipmaster in early modern law: the approach of Italian and English law courts

2019 ◽  
Vol 87 (4) ◽  
pp. 504-574
Author(s):  
Guido Rossi
Keyword(s):  
Early Modern ◽  
Common Law ◽  
Practical Importance ◽  
Civil Law ◽  
Case Law ◽  
Legal Framework ◽  
Walk Away ◽  
Long Time ◽  
Law Courts ◽  
The Difference

SummaryFor a long time, the concept of barratry (at least in its maritime meaning) was one and the same on both sides of the Channel. The barratry of the shipmaster was part of the mercantile usages, and it identified the intentionally blameworthy conduct of the master. When law courts began to decide on insurance litigation they were confronted with a notion quite alien to them. Broadly speaking, the shipmaster’s barratry could well be considered a fraud of sort. But in order to decide on its occurrence in a specific case, law courts had to analyse it in legal terms, and so according to the specific legal categories of their own system. The point ceases to be trivially obvious if we think that the different legal framework of civil and common law courts progressively led to very different interpretations of the same thing. Thus, with the shift of insurance litigation from mercantile justice to law courts maritime barratry began to acquire increasingly different features in the two legal systems. Very often, the very same conduct of the shipmaster was considered as negligent by civil law courts and barratrous by common law courts. The difference was of great practical importance, for many policies excluded barratry from the risks insured against. So, depending on the kind of law court, an insurer could be charged with full liability for the mishap or walk away without paying anything. If the beginning of the story was the same, its end could not have been more different.

Comparative analysis of experience and legal basis on regulation of information systems: existing problems

2021 ◽  
Vol 65 (04) ◽  
pp. 261-264
Author(s):  
Emin Teymur oğlu Məmmədov ◽  
Keyword(s):  
Information Systems ◽  
Comparative Analysis ◽  
Public Relations ◽  
Information Technologies ◽  
Legal Framework ◽  
Information Policy ◽  
Legal Practice ◽  
Legal Norms ◽  
Legislative Framework ◽  
National Information

Information systems are one of the objects of public relations regulated by information-legal norms. An information system is a regulated set of information technologies and documents. The existence of an appropriate legal framework for the regulation of information systems is important. After gaining independence, one of the main goals and objectives of the state was to form an appropriate legislative framework in this area. The formation and development of information systems is one of the important components of national information policy. This article examines information systems, national legal practice in regulating information systems, comparative analysis of the legal framework as part of national information policy and current issues. Key words: information systems, regulation of information systems, information legislation, national information policy, national legal practice

Herman Oliphant, stare decisis and the primacy of pragmatics in legal reasoning (with a brief excursion into neuropragmatics)

2019 ◽  
Vol 16 (3) ◽  
pp. 319-333
Author(s):  
Brian E. Butler
Keyword(s):  
Language Use ◽  
Legal Theory ◽  
Legal Reasoning ◽  
Linguistic Meaning ◽  
Legal Interpretation ◽  
Legal Practice ◽  
Stare Decisis ◽  
Legal Context ◽  
Theory Of Language ◽  
Blind Spots

Abstract Capone and Bucca argue that legal interpretation can go significantly wrong when founded upon a false conception of language and linguistic practices. This claim is correct. Specifically, semantic-based theories of linguistic meaning that are based upon the idea that a “core” semantic meaning can be identified outside of context and then needs to be “pragmatically enriched” for specific applications get the project of understanding language use in the legal context profoundly backwards. This paper emphasizes the primacy of an embedded pragmatics over other conceptions of linguistic meaning and practice in law. Herman Oliphant, in “A Return to Stare Decisis” offers an argument that helps strengthen the claim for the “primacy of pragmatics” in law. His work also shows that if the primacy of pragmatics is accepted, not only does this have significant impact upon actual legal practice, but it also highlights worrisome blind spots in currently dominant philosophical theories of law. His argument is that a conception of law that is centered upon such an appeal to principle, stare dictis, leads to a legal practice based upon distorting abstractions and a false conception of language use in law pulled out of its worldly roots. Because of this, he argues that stare dictis is detrimental to a living and empirically effective and informed legal system. Hence the need for a return of stare decisis properly understood. His article gives some grounds for critiquing many dominant philosophical theories of law. Oliphant’s theory is, importantly, compatible with, and supported by, a picture of language use offered by Jaszczolt and recent work in neuropragmatism. This, in turn, can be thought as further verification of Capone and Buccas’ assertion that the adoption of a false theory of language can have far ranging and detrimental effects upon legal practice and legal theory.

Why Teach Legal Theory Today?

2015 ◽  
Vol 16 (4) ◽  
pp. 781-819 ◽  
Author(s):  
Guilherme Vasconcelos Vilaça
Keyword(s):  
Legal Theory ◽  
Civil Law ◽  
Legal Reasoning ◽  
Legal Systems ◽  
Legal Practice ◽  
Argumentative Strategy

Is legal theory relevant to legal practice? Should legal theory be part of the academic legal curriculum? This article outlines three propositions in relation to these longstanding contentious questions. First, it argues that existing literature has pursued an inadequate argumentative strategy by (1) assuming that there is a single yes or no answer to the questions surrounding the relevance of legal theory; and (2) treating legal theory and legal practice as discrete, unrelated entities. This article distinguishes between different styles of doing legal theory and legal practice, and argues that the role of legal theory needs to factor in changes in the substance of law, legal reasoning, and legal careers. Second, focusing on European civil law countries, this article concludes that most legal theory is irrelevant for conventional legal practice. Concomitantly, it suggests that the constitutionalization, transnationalization, and Europeanization of legal systems are changing the practice of law in a way that is more congenial to theory than hitherto. It also contends that legal roles embodying a legislative standpoint within law are creating a demand for increased theoretical sophistication. Third, this article suggests what a course in legal theory, sketched along the lines of the analysis carried out, might look like.

scholarly journals Ethical and Legal Implications of Elective Ventilation and Organ Transplantation: “Medicalization” of Dying versus Medical Mission

2014 ◽  
Vol 2014 ◽  
pp. 1-5 ◽  
Author(s):  
Paola Frati ◽  
Vittorio Fineschi ◽  
Matteo Gulino ◽  
Gianluca Montanari Vergallo ◽  
Natale Mario Di Luca ◽  
...  
Keyword(s):  
Organ Donation ◽  
Organ Donor ◽  
Legal Framework ◽  
Organ Donors ◽  
Organ Perfusion ◽  
Medical Mission ◽  
Legal Implications ◽  
Legal Context ◽  
Successful Transplantation ◽  
Italian Context

A critical controversy surrounds the type of allowable interventions to be carried out in patients who are potential organ donors, in an attempt to improve organ perfusion and successful transplantation. The main goal is to transplant an organ in conditions as close as possible to its physiological live state. “Elective ventilation” (EV), that is, the use of ventilation for the sole purpose of retrieving the organs of patients close to death, is an option which offsets the shortage of organ donation. We have analyzed the legal context of the dying process of the organ donor and the feasibility of EV in the Italian context. There is no legal framework regulating the practice of EV, neither is any real information given to the general public. A public debate has yet to be initiated. In the Italian cultural and legislative scenario, we believe that, under some circumstances (i.e., the expressed wishes of the patient, even in the form of advance directives), the use of EV does not violate the principle of beneficence. We believe that the crux of the matter lies in the need to explore the real determination and will of the patient and his/her orientation towards the specific aim of organ donation.

A Comparative Study of International Maritime Conventions: Italian and Greek Perspectives

2017 ◽  
Vol 4 (2) ◽  
pp. 176-203
Author(s):  
Christina Zournatzi
Keyword(s):  
Comparative Study ◽  
Civil Law ◽  
Legal Framework ◽  
Legal Systems ◽  
Member States ◽  
Expert Analysis

This paper brings together a comparative study alongside expert analysis of the most important International Maritime Conventions of interest to two European Member States with extensive and significant maritime traditions, Italy and Greece. Initially the general legal framework of these two States with civil law systems is pointed out, followed by an analysis of the most influential and eminent maritime Conventions that have been implemented in the States’ legal systems. The Conventions on salvage, arrest of ships, maritime liens and mortgages and limitation of liability are considered and scrutinised. The methods and the legislative actions that the States adopted for the International rules to become part of their national legislative systems are examined thoroughly.

scholarly journals Iran’s Oil and Gas Legal Framework: from Exploration to Revolution

2019 ◽  
Vol 6 (1) ◽  
pp. 15-22
Author(s):  
Mahmoud Fard Kardel
Keyword(s):  
Comparative Analysis ◽  
Turning Point ◽  
Oil And Gas ◽  
Oil And Gas Industry ◽  
Legal Framework ◽  
Gas Industry ◽  
The Third ◽  
Second Period ◽  
Petroleum Oil

The main purpose of this article is to examine Iran’s legal and contractual framework for their petroleum, oil and gas industry. Basically, the legal and contractual framework of the Iranian oil and gas industry has been classified into three periods. The first period is from the exploration and discovery of oil in Iran to nationalisation (1901-1951), the second period is from nationalisation to revolution (1951-1979), and the third period is from revolution to the present day (1979-20016).Because each period has its own features and importance two articles will examine this topic. The first period (from exploration to nationalisation, 1901-1951), and second period (from nationalisation to revolution, 1951-1979), has been examined in this article with legal and comparative analysis, and the third period (1979-2016) will be covered in a later article.It should be mentioned that each contractual framework was a turning point regarding to opportunities and circumstances that they have been in that time and also each of those petroleum contractual regimes were a step toward to contractual framework evolution in Iran.

scholarly journals SKUTKI PRAWNE ORZECZEŃ TRYBUNAŁU KONSTYTUCYJNEGO W UJĘCIU CZASOWYM

2017 ◽  
Vol 3 (2) ◽  
pp. 313
Author(s):  
Roman Trzaskowski
Keyword(s):  
Supreme Court ◽  
Practical Importance ◽  
Civil Law ◽  
Main Question ◽  
Time Effects ◽  
Area Of Interest ◽  
Retroactive Effect ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
The Common

Effects of Constitutional Tribunal’s Judgments in the Time PerspectiveSummaryThe problem of the time effects of the Constitutional Tribunal’s rulings remain within the area of interest of both constitutional and civil law scholars. It is widely discussed because of its enormous practical importance: more and more often the common courts and the Supreme Court have to deal with the laws which have been declared unconstitutional.The main question is whether the courts should apply the unconstitutional law while deciding on a case in which legally significant events had taken place before the law was declared null and void.The Polish Constitution does not give a clear answer to this question. The most important provisions seem to be contradictory, which makes it possible to use them as arguments for opposing positions.The scholars’ opinions differ significantly: some of them, followed by the Supreme Court, accept the so-called „retrospective” effect (the unconstitutional law cannot by applied), the others, together with the Constitutional Tribunal, take the opposite view. A few try to find a compromise.The proposition presented in this paper is to be classified as belonging to the third group.Indeed it seems that there is a need for a flexible approach. The time effects of a ruling shall be expressly stated by the Constitutional Tribunal. When the Tribunal fails to do so, the common courts have to asses themselves the rulings’ effects, being guided, among other things, by the principles of the civil law. There are strong arguments that the Constitution seems to favor the retroactive effect, yet it is not decisive. There are certainly situations, where a prospecitve effect shall be accepted: ultimately it is a question of balancing different constitutional and civil law values. 

Sign in / Sign up

Export Citation Format

Share Document