scholarly journals The Opportunity for a Civil Code in Myanmar

2021 ◽  
Vol 1 (1) ◽  
pp. 17-45
Author(s):  
Rémi Nguyen
Keyword(s):  
Civil Law ◽  
Case Law ◽  
Civil Code ◽  
Modern Concept ◽  
Great Opportunity ◽  
Conflict Of Laws ◽  
Political Unity ◽  
Long Time ◽  
The Government ◽  
Broad Interpretation

If the modern concept of codification is seen as a Code, Myanmar experienced for long time official and various codifications in a broad interpretation of the term. Indeed, Dhammathat has been used in the Ancient Burma. Moreover, a Burma Code related to the codification of Indian Common Law has been established in the country through the British colonisation. Since the independence of the country, the government continues to compile statutes law and case law on a year-by-year basis. Nowadays, codification can be used to solve legal uncertainty and conflict of laws in civil law such as family law, contract law and property law. Hence, Myanmar needs to modernise its civil law and could do it through a Civil Code. Therefore, this modernisation can be a great opportunity to achieve the legal, social and political unity in the country.

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.

scholarly journals Mauritian Tort Law

2020 ◽  
pp. 184-203
Author(s):  
Goran Georgijević
Keyword(s):  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Causal Link ◽  
Civil Code ◽  
Tort Liability ◽  
French Case ◽  
Harmful Event

According to the general tort law of Mauritius (articles 1382 through 1384 of the Mauritian Civil Code), three conditions must be met before tort liability may be implemented, namely the existence of harm, the existence of a causal link, and the existence of a harmful event. This paper contains an analysis of the fundamentals of the tort law of Mauritius, which is based on Mauritian case law and French case law and French doctrine, which are considered a persuasive authority in Mauritian Civil Law.

Der Arzt im Konflikt zwischen Fehleroffenbarungspflicht und Selbstbelastungsfreiheit

2021 ◽  
Author(s):  
Iris Winkler
Keyword(s):  
Medical Errors ◽  
Case Law ◽  
Civil Code ◽  
Law Reform ◽  
Medical Negligence ◽  
Constitutional Review ◽  
Patients Rights ◽  
Long Time ◽  
The Law ◽  
Treatment Contract

For a long time, there was a diffuse body of opinion in the literature and case law regarding the physician's duty to disclose medical errors. With the entry into force of the Patients' Rights Act 2013, further discussion has become superfluous. In the course of the law reform, a corresponding right of the patient to information under the treatment contract was included in the German Civil Code. However, given the earlier controversy on this issue, it is hardly surprising that it is one of the most controversial provisions of the Patients' Rights Act. In addition to clarifying a number of legal uncertainties, the paper also provides a constitutional review of this provision as well as alternative incentives for dealing openly with medical negligence.

scholarly journals The regulation of private conservation legal tools in Catalonia: an inspiring precedent for the Roman law jurisdictions

2019 ◽  
Vol 10 (1) ◽  
Author(s):  
Hernan Collado Urieta
Keyword(s):  
Nature Conservation ◽  
Civil Law ◽  
Civil Code ◽  
Roman Law ◽  
Private Law ◽  
Great Opportunity ◽  
Previous Decade ◽  
Unique Experience ◽  
Land Stewardship

In the first decade of the XXI century, Catalonia has successfully received Land Stewardship as a strategy for nature conservation. As a result, many efforts have been taken to regulate Land Stewardship agreements in the Catalan civil law given the great opportunity of the Catalan private law codification that has taken place in Catalonia during the present and previous decade. For this purposes, all features of these agreements, such as duration, effects and nature have been thoroughly studied giving place to specific provisions in the Civil Code of Catalonia. This unique experience is studied in this article, extracting the key elements, learning and suggestions leading to some guidelines for a European common roadmap to the regulation of land Stewardship agreements.

scholarly journals Posiadanie w prawie karnym i cywilnym – czy dzierżyciel i prekarzysta może być pokrzywdzonym przestępstwem kradzieży?

2019 ◽  
Vol 16 (2) ◽  
pp. 229-242
Author(s):  
Tomasz Tyburcy
Keyword(s):  
Civil Law ◽  
Case Law ◽  
Civil Code ◽  
Good Faith ◽  
Subjective Element ◽  
The Will ◽  
Definition Of ◽  
Actual Control ◽  
Actual Relationship

The structure of ownership in civil law consists of two elements. The first is the element of physical wielding (corpus possesionis), and the second is a psychological (subjective) element; constituted by a presumption in favour of possession – one is always presumed to possess in his own interest (animus rem sibi habendi). Legal possession is the detention (control) or enjoyment of property or right that we hold or exercise by ourselves. Having control over property for someone else is defined in civil law as holding (Art. 338 of the Civil Code), which concerns the realization of a certain task. Possession as a factual status is protected by Art. 278 § 1 K. K. and should be interpreted more broadly than within the civil law definition. It constitutes an actual control over a movable property, which can also be exercised by a holder acting on his own behalf (commissionaire), who is not the possessor within the definition of the civil law. In contrast, it appears that a holder not acting on his own behalf (employee) is not protected by Art. 278 § 1 K. K. It seems erroneous that the protection of unlawful possession in Art. 278 § 1 K. K. depends on the good faith of the holder. Another questionable issue is granting protection for the permissive occupant in Art. 278 § 1 K. K. There is very little attention devoted to this problem both in the case-law as well as literature. It seems that permissive occupant does not attain the control over property, because his actual relationship to it is not an expression of the will of detentor, and therefore he cannot be a victim of theft.

scholarly journals On the promulgation of the new Hungarian Civil code

2011 ◽  
pp. 293-311
Author(s):  
Atila Dudas
Keyword(s):  
Subject Matter ◽  
Full Text ◽  
Turning Point ◽  
Civil Law ◽  
Civil Code ◽  
The Public ◽  
Draft Version ◽  
Legislative Procedure ◽  
The Government

Apart from previous partial codifications and system-laws, the first civil code in Hungary was promulgated in 1959. After the beginning of transition in 1989, despite the great number of amendments to the existing Civil code, to issue of recodification of civil law in Hungary became inevitable. This process began in 1998 when the Government appointed a committee with most renowned Hungarian legal scholars as members, which had the task to prepare a draft version of a new civil code. The committee has worked devotedly on the text of the draft for nearly a decade. In 2003 it published the so-called Concept and Syllabus of the new civil code in order to enable the public to get knowledge of the planned subject matter of the draft and, what is even more important, enable it to contribute to the quality of the draft by expressing critical remarks and suggestions. The committee, having taken into account the opinion of the public, continued its work on the draft and published the first full text of the draft in 2006. 2007 marked a turning point in the codification procedure when, to general astonishment, the Ministry of Justice took over the task of drafting a civil code, by which the drafting committee's mandate on the preparation of the new civil code ceased to exist, before it even could have had a chance to process the remarks the public had had on the 2006 draft. The Ministry published its first version of the draft in 2007, and a second one in 2008. In the same year, the committee, whose mandate has ceased to exist in 2007, published its, by then unofficial, version of the draft in order to make the achievements of its nearly decade-long work available to public in authentic form. The Ministry's second draft was adopted in 2008 by the Government and submitted to the Parliament as a bill to be enacted. The Parliament, after it had been in legislative procedure for a year or so, finally adopted the new Civil code of Hungary, though with a very slim majority. However, the President, using his constitutional powers, denied promulgating it, just as the subsequently enacted Law on the Implementation and Entering into Force of the new Civil Code. The President, who is, by the way, one of the most prominent civil law scholars in Hungary, expressed his deepest doubts in respect of the enactment of the new Civil code, both in terms of its substantial flaws and the manner in which the legislative draft and bill have been prepared. Using his right to suspensive veto he could not bring to naught the new Civil code, but he succeeded in postponing its promulgation and entry into force. The aim of this paper is to block in the tempestuous, decade-long work on the text of the new Civil code and its content in short, with special regard to the reasons for which the President denied to promulgate it.

scholarly journals The prohibition of abuse of rights in the Draft Civil Code of the Republic of Serbian

2020 ◽  
Vol 59 (89) ◽  
pp. 353-367
Author(s):  
Živorad Rašević
Keyword(s):  
Civil Law ◽  
Institutional Development ◽  
Case Law ◽  
Civil Code ◽  
Judicial Interpretation ◽  
Modern Approach ◽  
Harm To Others ◽  
The Republic ◽  
Subjective Rights ◽  
Civil Courts

This paper explores, explains and critically evaluates the legal provision on abuse of rights proposed in Article 20 of the Draft Civil Code of the Republic of Serbia. The author first briefly presents the institutional development and analyzes the contemporary theoretical dilemmas about the nature of this legal institute. Then, the author compares relevant Serbian and comparative law provisions de lege lata and de lege ferenda. Finally, the proposed legal solution is critically evaluated against the following criteria: its justification in the tradition of civil law doctrine and practice (case-law), adequacy in the development of modern civil law theory, envisaged content and information, and systemic and logical consistency. The research results expose the legislator's choice to formulate a new provision on the provision de lege lata, which is improved by introducing the concept of harm to others and subjective manifestations of abuse. This solution is criticised here for ommission to enumerate all abuse manifestations that have been recognized in civil law literature and case-law, as well as for the ommission to regulate this institute in compliance with modern approach based on the theory of internal limitations of subjective rights. Relying on the premises in the contemporary civil law literature, the author proposes a different provision de lege ferenda, which may more clearly express the nature of this institute and guide civil courts in the judicial interpretation and assessment of the consequences of the abuse of rights.

scholarly journals Instytucja kary umownej w latach 1965–1989 — wybrane zagadnienia

2021 ◽  
Vol 43 (3) ◽  
pp. 37-45
Author(s):  
Agnieszka Guzewicz
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Case Law ◽  
Civil Code ◽  
Theory And Practice ◽  
Legal Provisions ◽  
Starting Point ◽  
The Supreme Court

The basis of this article is the analysis of the functioning of a contractual penalty in the years 1965–1989, i.e. from the time the Civil Code entered into force until the end of the Polish People’s Republic period. The research was carried out by means of analysing the legal provisions, the caselaw of the Supreme Court and the views of the doctrine. Its purpose is to reflect and draw conclusions on the functioning of the civil law institution — a contractual penalty — under authoritarian governments. The considerations were focused on selected problems, first of all concentrating on the Supreme Court’s case-law. Legal relations with the participation of socialized economy units become an important element of these considerations. The provisions of the Civil Code constitute the starting point, but they cannot be interpreted in isolation from the provisions of other normative acts that introduced special legal solutions in contracts with the participation of units of the socialized economy. The confrontation of theory and practice shows how the obligations imposed on entities of civil law are enforced. Against this background, issues of key importance for civil law emerge. They relate to the principles of concluding contracts, the performance of obligations, and the consequences of a failure to perform the contract.

scholarly journals The legal consequences of the breach of pre-emption right

2013 ◽  
Vol 61 (4) ◽  
pp. 953-959 ◽  
Author(s):  
Martin Janků
Keyword(s):  
Case Law ◽  
Civil Code ◽  
Legal Relationship ◽  
General Rules ◽  
Legal Uncertainty ◽  
The Law ◽  
Broad Interpretation ◽  
Right Of First Refusal ◽  
Legal Consequences

Pre-emption right may be agreed in the contract on sale as one of the collateral clauses. General rules concerning the pre-emption right are included in the Civil Code. These general rules apply in both the pre-emptive right stipulated in the contract between the parties (the contractual right of first refusal), as well as for pre-emptive right arising under the law (statutory right of first refusal). It can also be used in the field of commercial obligations. Generally speaking we can state that the legislation concerning the pre-emption rights is very austere, unsystematically arranged and therefore allowing for too broad interpretation with undefined limits. It means at the same time a considerable legal uncertainty in its application. Participants of the legal relationship may often find only subsequently through the case law in which cases the violation of pre-emption law occurred. The aim of this paper is to analyse individual cases of violation of pre-emptive rights, both pre-emptive right with effects of an obligation and pre-emptive rights with effects of right in rem.

scholarly journals The Accessory Nature of the Penalty and the Peculiarities of Payment

2021 ◽  
Vol 17 (33) ◽  
pp. 93
Author(s):  
Ekaterine Nandoshvili
Keyword(s):  
Civil Law ◽  
Case Law ◽  
Civil Code ◽  
Practical Significance ◽  
Private Law ◽  
Systematic Analysis ◽  
Legal Literature ◽  
Made In

This paper focuses on analyzing the accessory nature of the penalty, the peculiarities of its payment, and the legislative provisions regulating the penalty. It also presents their shortcomings and criticizes the wrong opinions in the legal literature on the concept and types of the penalty. The penalty is considered as the institutions with only accessory nature. Reduction of the penalty requires the debtor's counterclaim, without which the court is deprived of the possibility of reducing the penalty. The provision of Article 417 of the Civil Code is considered a serious legislative gap by the paper. The novelty is the provisions of the paper and the necessity of introducing norms on legal penalties in the Civil Code is substantiated, without which the case law may become a factor of unjustified violation of the rights of the participants of the private relations. There is also substantiated provision, which refutes the validity of the opinion of the authors who exclude the initiative of the court in the issue of reduction of the penalty. The aim of this paper is to analyze certain aspects of the regulation of penalties, which, together with the theoretical aspects, have practical significance that will provide better understanding of a number of issues as well as the correct qualification of the rights and obligations arising from the payment of penalties. Logical and systematic analysis of norms, as well as comparative-legal methods, are used to achieve the above-mentioned goal. Using these methods, it is possible to determine the progressiveness of Georgian law norms and to identify existing gaps in them. This further provides a better understanding of their content so as to develop suggestions and recommendations to improve the norms and practices. Problems are analyzed on the examples of Georgian and German civil law. In terms of types and concepts of penalties, common characteristics and shortcomings between Georgian and German models were revealed. The efficiency of the Georgian model was also examined in terms of establishing the penalties. The study revealed that the Civil Code of Georgia determines the type of contractual penalty and allows its reduction. Based on this, a wrong conclusion has been made in science and practice about the existence of only one type of penalty in Georgian law. The circumstance that private law legislation does not consist solely of the Civil Code was not taken into account. The paper examines the applicable legislation of Georgia, which sometimes does not even use the term “penalty”, but actually provides for a legal penalty in various provisions. It is inevitably necessary to reflect the norms in detail in order to regulate the payment of legal penalties in the Civil Code of Georgia.

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