scholarly journals The Legal Nature of Force-Majeure

2021 ◽  
Vol 07 (11) ◽  
Author(s):  
Kholmurod Ruzievich Isanov ◽  
Keyword(s):  
Legal System ◽  
Use Of Force ◽  
Legal Systems ◽  
Legal Relationship ◽  
Force Majeure ◽  
Legal Nature ◽  
National Legal System ◽  
The Will ◽  
Legal Consequences

This article analyzes the legal nature of the force majeure in the system of legal relations. The will of the parties to a force majeure legal relationship, as a sudden or unavoidable event or situation involving their will, affects the rights and obligations between them and has certain legal consequences, the whole system of legal relations has also been examined as the basis for exemption from liability or exclusion of liability. Approaches have also been explored in distinguishing a situation that led to harm as a risk (risk) or force majeure situation in determining liability for breach of obligation. The conditions for the use of force majeure in the continental and general legal systems are analyzed, and scientific conclusions are drawn on its legal nature and its role in the national legal system.

scholarly journals THE WILL OF THE PATIENT EXPRESSED IN ADVANCE AND ITS LEGAL CONSEQUENCES

2015 ◽  
Vol 1 (7) ◽  
pp. 132
Author(s):  
Līga Mazure
Keyword(s):  
Legal System ◽  
Comparative Method ◽  
Legal Protection ◽  
Legal Regulation ◽  
Legal Analysis ◽  
Legal Doctrine ◽  
Legal Nature ◽  
The Will ◽  
Patient’S Will ◽  
Legal Consequences

The regulation of the will of the patient expressed in advance is controversial and insufficient in the Latvian legislation. The legal regulation on the will of the patient expressed in advance stipulates clearly only the form of the will of the patient; it has to be established without sufficient reference to its legally binding force. The aim of the research is to carry out a legal analysis of the institution of the patient’s will expressed in advance, to identify legal flaws related to it and to propose particular solutions to eliminate the identified limitations. To achieve the aim, the following research tasks are set: 1) to analyze the legal nature of the patient’s will expressed in advance; 2) to explore the content and term of the patient’s will expressed in advance; 3) to assess the establishment of the patient’s will expressed in advance and its termination. The following research methods are used in the research: semantic method, grammar method, historical method, analytical method, comparative method, systemic method, teleological method. In a result of the research the author has formulated the principles of the will of the patient expressed in advance that could be introduced in the legal regulation on the issue, thus improving the legal protection of the patient. Analysing the legal nature of the patient’s will expressed in advance and taking into account its peculiarity, the content boundaries of this particular type of the expression of the patient’s will were defined identifying the extent of the patient’s self-determination. Assessing various possibilities of choosing the term defining the patient’s will expressed in advance, the author has sustained the most appropriate version of the term considering both national and international legal regulation, and notions of the legal doctrine. Another issue of a similar significance that was analysed in the research were the methods used in the legal practice of the world countries to determine the patient’s will expressed in advance; the author has analysed and offered the determination method, which is the most appropriate for the legal system of Latvia. In the conclusion, types of termination of the patient’s will expressed in advance and their legal consequences were analysed. Furthermore, the author proposes an applicable project of the amendments to the legal regulations in order to implement the theoretical conclusions of the research related to the patient’s will expressed in advance into the legal system of Latvia.

scholarly journals Legal fact as the grounds of real rights termination to someone else's things

2021 ◽  
pp. 147-151
Author(s):  
O.V. Ilkiv
Keyword(s):  
Civil Law ◽  
Legal Regime ◽  
Real Right ◽  
Legal Relationship ◽  
Legal Nature ◽  
The Will ◽  
Administrative Act ◽  
Legal Fact ◽  
Theoretical Foundations ◽  
Legal Consequences

The article is devoted to the study of the grounds for the cessation of real rights to foreign things in order to further develop the theoretical foundations for the settlement of the transition of real rights.  The foundations of the emergence of legal relations are analyzed, the elements of which are real rights to foreign things, and the legal facts of their termination are compared.  The article describes the will of the subjects of real relations on termination of real rights as a dispositive factor, as well as comparative orders relating to circumstances that are not based on a contractual basis.  The contract may be a legal fact that is the basis of the emergence of obligatory and real legal relations.  The grounds for the emergence and termination of real relations are largely dependent on the peculiarities of the object, the real relations and the purposes of their use, where depending on the type of real rights to foreign things will be determined by their legal regime.  The legal relationship that arises on the basis of the contract is mixed in nature, covering the obligatory and real legal nature of its components.  Investigated that the administrative act of the authority of power can not act as a direct basis for the termination of real relations that arose on the basis of the contract without its termination.  Therefore, the administrative act recognize the element of the legal composition, which ends with the termination of contractual relations.  The refusal to use someone else's property should be considered as a subjective real right of any subject of real rights, which is given this civil law.  The author came to the conclusion that in the event of the occurrence of the circumstance provided for a hypothesis of the legal norm, it can be considered as a legal fact, which is associated with the termination of real relations.  The legal consequences of the mechanism of law accession are the appointment of certain rights and responsibilities of participants in civil legal relations or legal relations as a whole.  In view of this, in the work it is proposed to improve the classification division of the grounds of termination of legal relations with strangers.

scholarly journals KONSEP HUKUM MODERN: SUATU PERSPEKTIF KEINDONESIAAN, INTEGRASI SISTEM HUKUM AGAMA DAN SISTEM HUKUM NASIONAL

2014 ◽  
Vol 22 (1) ◽  
pp. 157
Author(s):  
Nasarudin Umar
Keyword(s):  
Legal System ◽  
Basic Problem ◽  
Legal Systems ◽  
National Legal System

<p class="IIABSBARU">Indonesia is known as a country with a mixed legal system. The current legal system is dominated by three major legal systems, namely Western legal system, customary legal system and Islamic legal system. The mixing of legal system has been emerging problem, because basically each legal system has a different character. The most basic problem is unbalancing in the formation of legal system in consequence of the dominance of Western legal system from customary and religious legal system. This paper try to analyze the concept of integration of religious legal system in the national legal system to make its position can be balanced. Based on the analysis, the concept of Three Pillars of Modern Legal Systems is suitable for modern Indonesian legal system in order to integrate the diversity of cultures, customs and religions.</p><p class="IIABSBARU" align="center">***</p>Indonesia dikenal sebagai negara dengan sistem hukum campuran. Sistem hukum yang saat ini berlaku didominasi oleh tiga sistem hukum besar, yaitu sistem hukum Barat, sistem hukum adat dan sistem hukum Islam. Percampuran sistem hukum ini bukan tak masalah, karena pada hakikatnya setiap sistem hukum memiliki karakter yang berbeda. Problem paling dasar adalah pem­bentukan hukum yang tidak berimbang, yaitu dominasi sistem hukum Barat atas hukum agama dan adat. Tulisan ini mengurai konsep integrasi sistem hukum agama dalam sistem hukum nasional agar kedudukannya dapat berimbang. Berdasarkan hasil analisa, konsep Three Pillars Sistem Hukum Modern yang integratif merupakan konsep hukum yang tepat untuk sistem hukum modern Indonesia dalam rangka mengintegrasikan keanekaragaman budaya, adat istiadat dan agama.

scholarly journals EKSISTENSI HUKUM ISLAM DAN HUKUM ADAT DALAM SISTEM HUKUM NASIONAL

2017 ◽  
Vol 14 (2) ◽  
Author(s):  
Abdurrahman Konoras
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Customary Law ◽  
Legal Systems ◽  
Left Behind ◽  
National Legal System

Islamic Law and Customary Law is part of the national legal system in addition to some other legal systems that also give meaning and role. But as a system and legal system, Islamic Law and Customary Law show a clear separation.Thus, both are standing alone and independent. The continuing development of both shows which of them can continue to exist and which of them is increasingly left behind or even reduced in terms of role.

What Makes Socialist Legal Systems Socialist?

2019 ◽  
pp. 131
Author(s):  
WILLIAM ELLIOTT BUTLER
Keyword(s):  
Special Reference ◽  
Legal System ◽  
The Other ◽  
Legal Systems ◽  
Legal Change ◽  
Legal Tradition ◽  
Legal Development ◽  
Legal Studies ◽  
Chinese Characteristics ◽  
National Legal System

The author re-examines in this article the foundations for the traditional classifications of legal systems in comparative legal studies and suggests the usefulness of a kaleidoscopic perception of legal classifications and change, commencing from the revolutions of 1917 down to the present with special reference to the enduring impact on Asian legal systems. China, Mongolia, Vietnam, and Laos, together with Cuba and Ethiopia, are arguably the surviving systems of the socialist legal tradition – few in number but massive in population. Various perspectives are suggested for classifying legal systems. None are regarded as mutually exclusive; that is, a single national legal system may display features of several familial characteristics. A substantial list of possible characteristics of socialist legal systems is given, as is a lengthy enumeration of possible categories of families of legal systems: socialist/totalitarian, technocratic, formalist, transitional, RomanoGermanic, mixed, Slavic, Eurasian, among others. With respect to Asian socialist legal systems, the article asks whether it is descriptively and analytically more correct to, for example, describe China as a “socialist legal system with Chinese characteristics” or a “Chinese legal system with socialist characteristics”. In either event, or a modification of the juxtaposition, the question remains: what factors make China one or the other? Whatever the answer at any given moment in time, a kaleidoscopic perception of legal change and movement looks less for eternal verities than for constant readjustment, constant re-evaluation of the balance of factors that comprise a legal system, and the development of additional relevant criteria that help identify the forces at work in legal development.

scholarly journals The classification of coded acts

2021 ◽  
pp. 84-91
Author(s):  
Ion Postu ◽  
◽  
Elena Tentiuc ◽  
Keyword(s):  
Legal System ◽  
Legal Systems ◽  
Practical Application ◽  
Legal Nature

In this article, authors analyze different models of codified acts. In carrying out this classification, several features of the codified documents emerged and were presented in a light conducive to study. The authors provide a practical example of doctrinal concepts, based on their empirical observations, with the relevant example for our legal system. Despite the multitude of scientific proposals, the classifications presented in the article are far from exhaustive, but are a theoretical-doctrinal exercise, aimed at systematizing knowledge about the nature and features of codified acts. Finally, the authors conclude that codes are the only form of codified act recognized by national law, although other forms are known in foreign legal systems. Without prejudice to the legal nature of codes and other classified acts, they may be doctrinally classified according to various criteria, which simplifies the understanding of their essence and contributes to their practical application.

scholarly journals Problemas para el Reconocimiento del Pluralismo Legał en America Latina

2004 ◽  
Vol 24 ◽  
pp. 55-66
Author(s):  
Wolfgand Gabbert
Keyword(s):  
Latin America ◽  
Legal System ◽  
Indigenous Communities ◽  
Short Description ◽  
Legal Systems ◽  
Legal Traditions ◽  
National Legal System ◽  
Two Systems ◽  
America Latina

Short description: The article is dedicated to the problem of traditional legal systems in the indigenous communities of Latin America, for example those in the Highlands of Mexico. These legal systems do not always originate from the pre-Hispanic period and on many occasions are more recent than national laws. They frequently cover same issues as the national legal system, which brings about the problem of overlapping legal traditions. The author explores if and how these two systems can co-exist together. Short description written by Michal Gilewski

scholarly journals Intrusion of international law into the national legal system

2021 ◽  
Vol 5 (1) ◽  
pp. 40-57
Author(s):  
V. F. Anisimov ◽  
Yu. V. Truntsevskiy
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Legal System ◽  
The State ◽  
Point Of View ◽  
Legal Systems ◽  
Foreign Law ◽  
National Legal System ◽  
International Obligations ◽  
The Law

The subject of the research is the peculiarities of the implementation of international law in national legal systems, the law enforcement practice of the implementation of international legal obligations of the state, doctrinal approaches to the interaction of the norms of international and domestic law. The purpose of the article is to confirm or disprove the hypothesis that the limits, forms and methods of the ex-ante intrusion of international law into the national legal system are determined not only as a result of the agreed will of States, but also against such will, under the influence of the interests of individual States or their political blocs that occupy a dominant position in an international organization. Methodology. The authors use such general theoretical and specific scientific methods as comparative analysis, generalization, interpretation and classification as well as systemic analysis and formal logical methods. The main results. The forms and methods of intrusion of international law into the legal systems are diversified. International law is not limited to interstate relations. Global processes require the development of new scientific approaches to understanding the processes of intrusion of international law into the legal systems of States. These processes require the study of the forms and methods of the impact of international law and international institutions on the national legal order. States are sometimes forced to implement measures developed in the international implementation mechanism (due to the need for international financial assistance as well as the inability to single-handedly defeat internal corruption, create a favorable international image, etc.). The international legal invasion exist already ex – post through the decisions of international judicial bodies or the assertive recommendations of international organizations. Their demands are made not just to comply with international obligations, but to change national legislation. The implementation of the norms of international law in national legal systems should be carried out at the domestic level just as much as it is necessary to fulfill these international obligations. The law enforcement practice in the state is based solely on national principles of law, and it is unacceptable to comply with the requirements from the outside to change them from the point of view of the independence of the state. It is the exclusive right of each State to determine the content of acts of interpretation of international bodies in relation to the decisions and actions of specific States from the point of view of their national interests. We prove that every state has the important right to determine the limits of the invasion of international law in their national legal system: the contents of implementing legislation; the completeness of implementation of the decisions and recommendations of international bodies and courts; the recognition of the extraterritorial validity of foreign law and forms of its implementation. Conclusions. The fundamental principle of international law- pacta sunt servanda – is transforming into a practical imperative – national legislation must change. This is due to the recognition of the jurisdiction of international judicial bodies. This is due to the extraterritorial effect of foreign law; it is connected with the transnational character of the law of international integration entities. This is due to the inability of individual States to resist exponential corruption. The continuous nature of the intrusion of international law into national legal systems is reflected in the various methods of such interference. The article proves the importance of each state having the right to independently determine the limits of the intrusion of international law into their national legal system.

scholarly journals Law Transformation in the Context Globalisation and International, Regional Integration

2019 ◽  
Vol 35 (4) ◽  
Author(s):  
Vu Thanh Ha
Keyword(s):  
International Law ◽  
Legal System ◽  
Regional Integration ◽  
Legal Systems ◽  
National Legal System ◽  
Contemporary Context

Globalisation and regional integration has become typical in this contemporary context. These processes have changed the interaction between a national legal system and the international one towards the dominance of international law. At the same time, globalisation and regional integration have increasingly stimulated the proximity and interaction of national laws with other legal systems. This special context requires to establish approaches of transforming laws towards building an effective legal system for each country’s development and integration internationally and regionally. 

Fātiḥa Marriage in Morocco

Hawwa ◽  
2020 ◽  
pp. 10-33
Author(s):  
Miyase Yavuz-Altıntaş
Keyword(s):  
Legal System ◽  
Social Reality ◽  
Religious Practices ◽  
Court Cases ◽  
Force Majeure ◽  
National Legal System ◽  
Advisory Commission

Abstract This paper investigates the debates over, and the promulgation of, the new Moroccan laws on unregistered customary marriages and on establishing the paternity of offspring resulting from such marriages, and it analyzes how those laws have been implemented by the judiciary. The paper closely examines the relevant deliberations of the Moroccan Royal Advisory Commission, and analyzes 24 court cases involving the laws. I argue that, while monogamous registered marriage is depicted in the national legal system as the basis for establishing a modern Moroccan society, legislators regard fātiḥa marriage as a social reality that has its roots in customs and religious practices. The paper shows that judges abide by the conditions specified in law but differ in their interpretation of “force majeure” when it comes to a couple’s having not registered their marriage. The study also reveals how the laws create legal loopholes in terms of underage marriage and polygyny, which are strictly restricted in the code.

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