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.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

Contracts for the Benefit of Third Parties in Japan

2018 ◽  
Author(s):  
Masami Okino
Keyword(s):  
Case Analysis ◽  
Case Law ◽  
Contract Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
German Model ◽  
Recent Debate ◽  
The Law

This chapter discusses the law on third party beneficiaries in Japan; mostly characterized by adherence to the German model that still bears an imprint on Japanese contract law. Thus, there is neither a doctrine of consideration nor any other justification for a general doctrine of privity, and contracts for the benefit of third parties are generally enforceable as a matter of course. Whether an enforceable right on the part of a third party is created is simply a matter of interpretation of the contract which is always made on a case-by-case analysis but there are a number of typical scenarios where the courts normally find the existence (or non-existence) of a contract for the benefit of a third party. In the recent debate on reform of Japanese contract law, wide-ranging suggestions were made for revision of the provisions on contracts for the benefit of third parties in the Japanese Civil Code. However, it turned out that reform in this area was confined to a very limited codification of established case law.

Determining a Suicide under Australian Law

2018 ◽  
Vol 41 (2) ◽  
Author(s):  
Stephanie Jowett ◽  
Belinda Carpenter ◽  
Gordon Tait
Keyword(s):  
Case Law ◽  
Law Reform ◽  
Practical Matter ◽  
The Law ◽  
Recent Government

This article examines the role of coroners in making legal determinations of suicide in Australia. Research indicates that the requirement to make findings of intent and capacity in unexpected, violent deaths can be difficult for coroners and recent government inquiries have suggested that the law contributes to the problem. A review of laws and commentary that guide coroners in Australian states and territories reveals not only that coroners are the only persons tasked with making routine legal determinations of suicide, but that such legal guidance lacks clarity. This article concludes that law reform would aid coroners by clarifying definitional issues, removing inconsistency between state jurisdictions and increasing the transparency of case law. Along with requirements for a determination of intent, which is a practical matter previously raised by the Victorian Coronial Council, such changes would go some way to ensuring that Australian suicide statistics are more reliably created.

scholarly journals Diminished responsibility and alcohol

2010 ◽  
Vol 16 (3) ◽  
pp. 193-198 ◽  
Author(s):  
Nuwan Galappathie ◽  
Krishma Jethwa
Keyword(s):  
Criminal Law ◽  
Case Law ◽  
Law Reform ◽  
England And Wales ◽  
Life Sentence ◽  
The Law ◽  
Diminished Responsibility

SummaryIn England and Wales diminished responsibility is a partial defence to the charge of murder. If successfully argued by the defence, it reduces the charge from murder to manslaughter and thus avoids the mandatory life sentence. Alcohol has been reported to be a feature in up to 80% of all homicides but for many years the judiciary have set an almost unattainable threshold for the disease of alcoholism to amount to a finding of diminished responsibility, in accordance with other aspects of criminal law. Reform of the law on murder is likely to take many years but it is timely to recap the current law on diminished responsibility and review advances in case law in England and Wales on alcohol.

Law of Torts

Japanese Law ◽  
2021 ◽  
pp. 191-211
Author(s):  
Hiroshi Oda
Keyword(s):  
Burden Of Proof ◽  
Tort Law ◽  
Case Law ◽  
Civil Code ◽  
Tort Liability ◽  
The Law ◽  
General Provision

Tort is part of the Law of Obligations. Provisions on tort liability are found in Book Three, the Law of Obligations, of the Civil Code. There is only a single general provision on tort. The legislature expected rules to develop out of case law. A person who intentionally or negligently infringes upon others’ right or interests protected There is a body of case law which sets out details of tort law such as causation and fault. There have been cases where the shift of the burden of proof was at issue.　

Zawezwanie do próby ugodowej. Brak skutku przedawnienia terminu przedawnienia

2017 ◽  
Vol 70 (0) ◽  
pp. 39-48
Author(s):  
Jerzy Akińcza
Keyword(s):  
Case Law ◽  
Civil Code ◽  
Practical Application ◽  
Judicial Practice ◽  
Legal Uncertainty ◽  
The Law

An important problem of practical application of the law is invalid perpetuated judicial practice. It connects call for mediation with art. 184 of the Civil Code, with the effects of limitations of art. 123 § 1 of the Civil Code. Summoning to a conciliation hearing isn’t directly aimed at the fulfillment of the provision, therefore cannot be identified with legal transactions, to be determined content of 123 § 1 of the Civil Code. Practice currently carried out in the case law leads to a prolonged state of legal uncertainty, actual creditor victimization and denying institutions of antiquity.

scholarly journals The concept of proper quality of construction works in lithuanian construction law

2016 ◽  
Author(s):  
Sigitas Mitkus
Keyword(s):  
Case Law ◽  
Civil Code ◽  
Quality Requirements ◽  
Standard Quality ◽  
The Law ◽  
The Republic ◽  
Construction Law ◽  
Construction Works

The article analyses the concept of proper quality of construction works in law of the Republic of Lithuania. The analysis covers the quality requirements laid down in the Law on Construction, the Civil Code and case law. The article also defines and analyses the main categories used in Lithuanian law to characterise the quality of construction works, in particular, compliance with the standard quality of a construction works, compliance with the quality requirements set in contract documents, compliance with the requirements ordinarily presented for work of the respective nature, and fitness for use in accordance with its designation within the limits of a reasonable period.

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.

Specificity of the interpretation of constitutionality in the Fifth Republic in France

2021 ◽  
Vol 30 (3) ◽  
pp. 125-140
Author(s):  
Dar'ya Kalish
Keyword(s):  
Eu Law ◽  
International Treaties ◽  
Fifth Republic ◽  
Constitutional Review ◽  
Modern France ◽  
Legislative Proposals ◽  
Long Time ◽  
The Law ◽  
The Government ◽  
Council Of State

In France, the understanding of the constitutionality of law and the wider institution of constitutional control have interesting features, especially when compared to other countries that use the traditional, legal European (Kelsen’s) model. These include the originality of the standard, against which legislative acts are checked. It is the so-called constitutional bloc, which, in addition to the 1958 Constitution itself, includes the Declaration of the Rights of Man and Citizen of 1789, the Preamble to the 1946 Constitution, the 2004 Environmental Charter, as well as the principles to which the Constitutional Council attaches constitutional significance. A feature of French public law in accordance with the 1958 Constitution is the non-universal legislative competence of parliament and the delimitation of the areas of regulation of law and regulations (government acts). In this regard, one of the requirements for the constitutionality of the law in France is that it should not interfere with the sphere of regulatory power, that is, it should not touch upon issues that are not attributed to the subject of legislative regulation by the Constitution. However, Parliament’s violation of the delimitation of legislative and regulatory regulation established by the Constitution does not include the unconstitutionality of the corresponding law (its individual provisions), instead only allowing the Government to amend them by its decrees. For a long time in France, there was only preliminary constitutional control over laws, legislative proposals submitted to a referendum, regulations of the chambers of Parliament and international treaties. As a result of the 2008 constitutional reform, a specific, subsequent constitutional review was introduced. It can be initiated in the Constitutional Council by the Court of Cassation or the Council of State upon an appeal, respectively, by a court of general jurisdiction or an administrative court, before which a statement is made that the law being applied to the dispute under consideration violates constitutionally guaranteed human rights. The institution of subsequent constitutional review has proved to be in great demand, and currently, most of the Constitutional Council’s decisions are made within its framework. In modern France, the development of legislation is significantly influenced by EU law. However, neither the Constitutional Council nor the Council of State directly monitor the compliance of laws and regulations with international treaties and EU law.

Verkehrshypothek und Sicherungsgrundschuld

2019 ◽  
Author(s):  
Jovanka Gehrenbeck
Keyword(s):  
Case Law ◽  
Civil Code ◽  
Before And After ◽  
Similarities And Differences ◽  
The Creation ◽  
The Law ◽  
Bürgerliches Gesetzbuch ◽  
Debtor Protection

The creation of § 1192, para. 1a of the Bürgerliches Gesetzbuch (Germany’s civil code) through the Risk Limitation Act (Risikobegrenzungsgesetz) has gradually improved the opportunities for material debtors to object to land charges. In contrast, the law relating to mortgages has remained unchanged with the result that it has in part lost its model character. This study first presents the similarities and differences between mortgages and land charges with regard to the justification of obtaining credit security and then focuses in detail on the opportunities to object to the use of in rem jurisdiction before and after the Risk Limitation Act came into effect. In doing so, the study explains the developments in case law in this regard and alternatives to the creation of § 1192, para. 1a of the Bürgerliches Gesetzbuch, and in conclusion addresses the question of improving debtor protection.

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