scholarly journals Critique of two decicions of Constitutional Court of the Republic of Srpska / Kritika dvije odluke Ustavnog suda Republike Srpske

2015 ◽  
Vol 5 (5) ◽  
pp. 114
Author(s):  
Milan Blagojević
Keyword(s):  
Social Insurance ◽  
Public Authority ◽  
Constitutional Court ◽  
Judicial Practice ◽  
The Subject ◽  
Internal Morality ◽  
The Law ◽  
The Republic ◽  
The Right ◽  
In The Beginning

The subject of this paper are two decisions of Constitutional Court of the Republic of Srpska which set in motion not only the question of constitutionality of one statute from the area of social insurance, but the questions of internal morality of the state and law as well. Beginning part of the paper is preceding to introduction into that problem, and in the beginning part the author, by the example from the judicial practice, point out an unconstitutional practice due to which in the area of social insurance is infringed the right on property by inactivity of competent organs of public authority. The infringement of the same right is caused by statute provisions analised in the paper. It is word on provisions of the Law on social insurance in the Republic of Srpska, by which is prescribed that the pensions will be determined again for some of beneficiaries, what in practice means that their pensions will be decreased, and that for some of other beneficiaries it will not be done. This unconstitutional behaviour of legislator, due to which the right on property and equality before the law are infringed, are tried to be resolved by the Constitutional Court of the Republic of Srpska in its two decisions by opinion according to which it is a matter of policy of legislator and suitability to prescribe whether the pensions will be determined again for all or for some beneficiaries. This opinion is exposed to the criticism in the paper.

scholarly journals URGENSI PEMBENTUKAN UNDANG-UNDANG HAK ANGKET DPR RI (THE URGENCY OF MAKING THE LAW ON THE RIGHT OF INQUIRY OF THE HOUSE OF REPRESENTATIVES OF THE REPUBLIC OF INDONESIA)

2017 ◽  
Vol 8 (2) ◽  
pp. 177-194
Author(s):  
Novianto Murthi Hantoro
Keyword(s):  
Judicial Review ◽  
House Of Representatives ◽  
Constitutional Court ◽  
Current Regulation ◽  
Presidential System ◽  
Subject And Object ◽  
The Subject ◽  
The Law ◽  
The Republic ◽  
The Right

Prior to the decision of the Constitutional Court (MK), the implementation of the right to inquiry was regulated in two laws, namely Law No. 6 of 1954 on the Establishment of the Rights of Inquiry of the House of Representatives (DPR) and Law No. 27 of 2009 on MPR, DPR, DPD, and DPRD. Through proposal for judicial review, MK decided the Law on the Rights of Inquiry was null and void because it was not in accordance with the presidential system adopted in the 1945 Constitution. Today, the exercise of the right of inquiry is only based on Law on MPR, DPR, DPD, and DPRD. Nonetheless, the Amendment of Law No. 27 of 2009 into Law No. 17 of 2014 could not accommodate some substances of the null and void Law on the Rights of Inquiry. The urgency of the formulation of the law on the right to inquiry, other than to carry out the Constitutional Court’s decision; are to close the justice gap of the current regulation; to avoid multi-interpretation of the norm, for example on the subject and object of the right of inquiry; and to execute the mandate of Article 20A paragraph (4) of the 1945 Constitution. The regulation on the right to inquiry shall be formulated separately from the Law on MPR, DPR, DPD and DPRD, with at least several substances to be discussed, namely: definition, mechanisms, and procedure, as well as examination of witnesses, expert, and documents. AbstrakSebelum adanya putusan Mahkamah Konstitusi (MK), pelaksanaan hak angket diatur dalam dua undang-undang, yaitu Undang-Undang Nomor 6 Tahun 1954 tentang Penetapan Hak Angket DPR (UU Angket) dan Undang-Undang Nomor 27 Tahun 2009 tentang Majelis Permusyawaratan Rakyat, Dewan Perwakilan Rakyat, Dewan Perwakilan Daerah, dan Dewan Perwakilan Rakyat Daerah (UU MPR, DPR, DPD, dan DPRD). Melalui permohonan pengujian undang-undang, MK membatalkan keberlakuan UU Angket karena sudah tidak sesuai dengan sistem presidensial yang dianut dalam UUD 1945. Pelaksanaan hak angket saat ini hanya berdasarkan UU MPR, DPR, DPD, dan DPRD. Penggantian UU No. 27 Tahun 2009 menjadi UU No. 17 Tahun 2014 tentang MPR, DPR, DPD, dan DPRD ternyata tidak mengakomodasi beberapa substansi UU Angket yang telah dibatalkan. Berdasarkan hal tersebut, terdapat urgensi untuk membentuk Undang-Undang tentang Hak Angket DPR RI. Urgensi tersebut, selain sebagai tindak lanjut putusan MK, juga untuk menutup celah kekosongan hukum pada pengaturan saat ini dan untuk menghindari multi-interpretasi norma, misalnya terhadap subjek dan objek hak angket. Pengaturan mengenai hak angket perlu diatur di dalam undang-undang yang terpisah dari UU MPR, DPR, DPD, dan DPRD, dengan materi muatan yang berisi tentang pengertian-pengertian, mekanisme, dan hukum acara. Pembentukan Undang-Undang tentang Hak Angket diperlukan guna memenuhi amanat Pasal 20A ayat (4) UUD 1945.

scholarly journals Reasonable time frame in bankruptcy proceedings: Analysis of cases from the judicial practice of the Commercial Court in Niš

2021 ◽  
Vol 60 (90) ◽  
pp. 97-118
Author(s):  
Aleksandar Mojašević ◽  
Aleksandar Jovanović
Keyword(s):  
Case Law ◽  
Time Frame ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Reasonable Time ◽  
Judicial Practice ◽  
Reasonable Time Frame ◽  
The Subject ◽  
The Republic ◽  
The Right

The Act on the Protection of the Right to a Trial within a Reasonable Time, which took effect in 2016, has created the conditions in our legal system for the protection of the right to a trial within a reasonable time, as one of the fundamental rights guaranteed by the Constitution of the Republic of Serbia and related international documents. Although the legislator does not explicitly provide for the application of this Act in the context of bankruptcy proceedings, it has been used in judicial practice as a mean for the bankruptcy creditors to obtain just satisfaction in cases involving lengthy bankruptcy proceedings and a violation of the right to a fair trial within a reasonable time. The subject matter of analysis in this paper is the right to a trial within a reasonable time in bankruptcy cases. For that purpose, the authors examine the case law of the Commercial Court in Niš in the period from the beginning of 2016 to the end of 2019, particularly focusing on the bankruptcy cases in which complaints (objections) were filed for the protection of the right to a fair trial within a reasonable time. The aim of the research is to examine whether the objection, as an initial act, is a suitable instrument for increasing the efficiency of the bankruptcy proceeding, or whether it only serves to satisfy the interests of creditors. The authors have also examined whether this remedy affects the overall costs and duration of the bankruptcy proceeding. The main finding is that there is an increasing number of objections in the Commercial Court in Niš, which still does not affect the length and costs of bankruptcy. This trend is not only the result of inactivity of the court and the complexity of certain cases but also of numerous external factors, the most prominent of which is the work of some state bodies.

UGOVORI O REALIZACIJI PROGRAMA ORGANIZACIJA U OBLASTI SPORTA KOJI SE FINANSIRAJU IZ JAVNIH SREDSTAVA

2021 ◽  
Author(s):  
Nenad Đurđević ◽  
Keyword(s):  
Program Implementation ◽  
Public Authority ◽  
General Interest ◽  
Special Importance ◽  
Public Funds ◽  
The Subject ◽  
The Republic ◽  
Autonomous Province ◽  
The Right ◽  
Sports Activities

According to the Law on Sports of the Republic of Serbia from 2016, sport is an activity of special importance for the Republic of Serbia. However, this does not mean that participants in the sports system have the right to have their sports activities and actions financed from public funds. The Republic of Serbia, the Autonomous Province and local government units finance the realization of the general interest and the satisfaction of the needs and interests of citizens in the field of sports exclusively by making contracts on specified program implementation with the program holders. The only exceptions are organizations founded by a certain public authority. In his paper, the author considers following issues: which programs can be the subject of a contract and whether their implementation provides services to a particular public authority; when a valid contract has been concluded and whether it must be concluded if the proposed program meets the legally prescribed conditions to be approved.

scholarly journals TRANSFER OF UNDERTAKINGS PROTECTION OF EMPLOYMENT (TUPE) DALAM PERJANJIAN OUTSOURCING

Media Iuris ◽  
2018 ◽  
Vol 1 (2) ◽  
pp. 335
Author(s):  
Muhammad Johar Fathoni
Keyword(s):  
Service Provider ◽  
Court Decision ◽  
Constitutional Court ◽  
Employment Service ◽  
Labor Agreement ◽  
The Law ◽  
The Republic ◽  
The Government ◽  
The Right

Transfer of Undertaking Protection of Employment Based on Constitutional Court Decision Number 27/PUU-IX/2011, there are two models that must be fulfilled in outsourcing agreement, that is First, by requiring for agreement between worker and company conducting work outsourcing does not take the form of a certain time labor agreement (PKWT), but is in the form of an indefinite time agreement (PKWTT). The consequences of termination of contract for the Employment Service Provider who laid off his employees for the law, the employer shall be entitled to grant the right to his employees in accordance with the Manpower Act, Kepmenaker No. Kep. 150/Men/2000 on the Settlement of Termination of Employment and Stipulation of Severance, Money of Work and Indemnification. Then the government also stipulates the Decree of the Minister of Manpower and Transmigration of the Republic of Indonesia no. Kep. 76/Men/2001 on Amendment to several articles of Minister of Manpower Decree no. Kep. 150 / Men / 2000 on the Settlement of Termination of Employment and Stipulation of Severance, Money of Work and Indemnification at the Company.

scholarly journals PRINCIPLE OF NATURAL COURT: CURRENT PROBLEMS OF LEGAL UNDERSTANDING AND LAW ENFORCEMENT IN UKRAINE

2021 ◽  
pp. 70-74
Author(s):  
S. Prylutskyi ◽  
Keyword(s):  
Legal Status ◽  
Constitutional Court ◽  
Exclusive Jurisdiction ◽  
Basic Law ◽  
The Status ◽  
Separate System ◽  
Specialized Courts ◽  
The Subject ◽  
The Law ◽  
The Right

In 2016, a provision appeared in Article 125 of the Basic Law, which stipulated that higher specialized courts may operate in accordance with the law. Filling the content of this wording in, Article 31 of the Law "On the Judiciary and the Status of Judges" (2016) establishes that in the judicial system there are higher specialized courts as courts of first instance to consider certain categories of cases. This category of courts today includes the High Court of Intellectual Property and the High Anti-Corruption Court, activities of which are initiated by the relevant legislation. However, in political circles there was a discussion about the constitutionality of this court and, accordingly, the subject of the right to a constitutional petition questioned a number of provisions of the Law "On the Supreme Anti-Corruption Court" and appealed to the Constitutional Court of Ukraine to declare this law unconstitutional. In turn, the Constitutional Court of Ukraine initiated constitutional proceedings on this issue. Familiarization with the legal position of the subject of the constitutional petition indicates that the key issue of this constitutional proceeding concerns the presence of signs of a "special court" (within the meaning of Part 6 of Article 125 of the Constitution of Ukraine) in the mechanism of legislative regulation of the Supreme Anti-Corruption Court. In order to find an objective answer to the existing conflict, it is necessary to abstractly identify the main features of a "special" court. To solve such an applied problem, the author of the article turned to the theory and applied provisions of the principle of natural judgment, which was the subject of this study. As a result of the study, the author argues that by giving the Supreme Anti-Corruption Court exclusive jurisdiction over the system of general courts, the legislator has significantly deviated from the permissible limits of constitutional legality. The author singled out and grouped the key features of a special court, which included: 1) Separation of a judicial institution with a separate system of instances for consideration of certain categories of cases selected from the general array (special jurisdiction) or in respect to a separate category of persons. 2) The court, which is entrusted with special, different from other general courts, the purpose and objectives of the activity. 3) A court formed to expedite the resolution of certain categories of cases specific to a certain period; 4) A court in which judges have a special legal status (special tasks in the administration of justice; special professional qualifications (requirements, selection criteria); a special (extraordinary) procedure for the formation of the judiciary, etc. It is seen that the principle of natural judgment – is a fundamental constitutional and legal heritage of civilized humanity, which is designed to protect people, their rights and freedoms from the arbitrariness of the state, and from the use of courts as an instrument of terror and wrongful persecution.

scholarly journals Direct effect of the constitution and its impact on case-law in the Republic of Armenia

2021 ◽  
pp. 53-60
Author(s):  
Anahit Manasyan ◽  
Keyword(s):  
Law Enforcement ◽  
Direct Effect ◽  
Case Law ◽  
Constitutional Court ◽  
Priority Rules ◽  
Judicial Practice ◽  
The Law ◽  
The Republic ◽  
Direct Implementation

The article considers the issues with regard to the direct effect of the Constitution. The topic is presented by analyzing the techniques for proper implementation of the Constitution and ensuring the constitutionality of the law enforcement/judicial practice. Author differentiates the content of the concepts „direct effect” and “direct implementation” of the Constitution, presenting the essence of each of the notions. Techniques for proper implementation of constitutional norms are suggested by the author, analyzing also the implementation priority rules. According to the author implementing legislative provisions in conformity with their constitutionallegal content is another precondition for ensuring the proper application of the Constitution. The law enforcement/judicial practice can become a subject of consideration by the Constitutional Court of the Republic of Armenia if itis not an issue of legitimacy of the mentioned practice, but an issue of constitutionality of the latter, an issue of evaluation of the circumstance whether the legal acts are implemented in conformity with their constitutional-legal content in the frames of the mentioned practice is raised.

Theoretic and Practical Aspects of Protection of the Right of Ownership in the Hereditary Relations

2020 ◽  
Vol 27 (3) ◽  
pp. 95-108
Author(s):  
Iryna Dzera
Keyword(s):  
Negative Impact ◽  
Case Law ◽  
Effective Mechanism ◽  
Hereditary Property ◽  
Judicial Practice ◽  
The Subject ◽  
The Law ◽  
The Moment ◽  
State Registration ◽  
The Right

The relevance of the subject matter lies in the fact that inheritance is one of the most common grounds for acquiring property by individuals. Considering the fact that the heirs are often relatives of the testator, to avoid disputes between them, the law should contain an effective mechanism for resolving relations between heirs over the redistribution of inheritance or change of the order of inheritance, and a mechanism to protect the rights and interests of heirs in case of disputes. The purpose of this study is to identify gaps and inconsistencies in civil legislation and case law in the study of the main ways to protect the rights of heirs in hereditary relations, and ways to resolve them. It is noted that in the presence of disputes between the heirs, it is not the protection of property rights that is carried out, because the heirs have not yet acquired the right of ownership, but the protection of the right to inheritance, according to which they will be able to acquire ownership of the inherited property. There is a lack of a particular list of ways to protect the rights of heirs in the legislation of Ukraine, which has a negative impact on judicial practice, as they often use inappropriate methods of protection. The study analyses the case law of hereditary disputes and identifies the main mistakes that courts make in resolving such cases. Particular attention is focused on the study of such methods of protection as the recognition of the certificate of inheritance as invalid, the hereditary recognition of the property that belonged to the deceased, but was not part of the inheritance. The study investigates the moment of ownership of the hereditary property of the heirs and a critical analysis of the provisions of Article 1268 of the Civil Code, which determine the moment from which the inheritance belongs to the heir – namely from the moment of opening the inheritance. There is a conflict between the rules of Article 1268 and Article 3 of the Law of Ukraine "On state registration of real rights to immovable property and their encumbrances" in terms of establishing the moment of ownership of immovable property by inheritance

scholarly journals Constitutional Complaint Sebagai Penambah Kewenangan Baru Dalam Undang-Undang Mahkamah Konstitusi Republik Indonesia

2020 ◽  
Vol 4 (2) ◽  
Author(s):  
Nurul Komariah ◽  
Muhammad Romadhoni Nur Matori Ridwan ◽  
Alivia Vabesta ◽  
Ginanjar Damayanti ◽  
Siti Nariyah
Keyword(s):  
Judicial Review ◽  
Quality Data ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Applicable Law ◽  
Secondary Sources ◽  
The Subject ◽  
The Republic ◽  
The One ◽  
The Right

Guarantee the rights of every citizen for violations of constitutional rights by seeking to increase the authority of the Judicial Review Request by every justice seeker for violations of constitutional rights, but not at least the petition was granted.  The Mahkarnah of the Constitution, which checks what the petition is made of, often considers that what the Judicial Review proposes is not the subject of acknowledgment.  Constitutional Court Judges considered it to be a Constitutional complaint in which this constitutional complaint was not part of the Court's authority in accordance with the Constitution of the Republic of Indonesia and the applicable Law on the Understanding of the Constitution.  As a legislative body, the DPR is the one who has the right to change the Constitutional Court Law by including the authority of Constitutional complaint to the Constitutional Court. In this paper the author uses a research method in the form of quality data analysis with secondary sources of literature and deductive logic analysis.  Consitional Complaint to the Constitutional Court.

scholarly journals IMPLIKASI PUTUSAN MAHKAMAH KONSTITUSI TERKAIT PENGGUNAAN KTP DAN PASPOR DALAM PEMILIHAN PRESIDEN DAN WAKIL PRESIDEN DALAM KERANGKA MENJAMIN HAK MEMILIH DALAM PEMILU

2019 ◽  
Vol 3 (1) ◽  
Author(s):  
Bagus Anwar Hidayatulloh
Keyword(s):  
Vice President ◽  
General Election ◽  
Constitutional Court ◽  
General Elections ◽  
Right To Vote ◽  
The Law ◽  
The Republic ◽  
Identity Cards ◽  
The Right ◽  
Election Commission

Abstrak Implikasi putusan mahkamah konstitusi terkait penggunaan KTP dan paspor dalam pemilihan presiden dan wakil presiden dalam kerangka menjamin hak memilih dalam pemilihan umum. Terkait dengan ini maka memunculkan permasalahan terkait implikasinya. Bagaimana implikasi baik secara langsung maupun tidak langsung putusan Mahkamah Konstitusi terkait penggunaan KTP dan Paspor dalam pemilihan umum. Mahkamah Konstitusi sebagai lembaga pelaksana kekuasaan kehakiman yang salah satu kewenangannya adalah menguji Undang-Undang terhadap UUD Negara Republik Indonesia Tahun 1945 dalam rangka mewujudkan negara demokrasi yang berdasarkan hukum sebagaimana termaktub dalam Pasal 1 UUD Negara Republik Indonesia Tahun 1945. Hasilnya adalah implikasi langsung yang terdiri dari penerapan KTP dan Paspor sebagai ganti DPT, Memunculkan putusan yang bersifat self executing, mengesampingkan Peraturan Pemerintah Pengganti Undang-undang, mengesampingkan keputusan dan peraturan KPU terkait aturan baru akibat putusan MK dan Implikasi tidak langsung yang terdiri dari Mengurangi terjadinya perselisihan hasil Pemilihan Umum Presiden, KPU bekerja ekstra. Tujuan ke depan penelitian ini adalah untuk mengetahui dan memberikan sumbangsih dalam dunia akademik terutama terkait tentang penjaminan hak asasi manusia terutama hak memilih dalam pemilihan presiden dan wakil presiden. Penelitian ini menggunakan metode kajian peraturan perundang-undangan yang sesuai dengan metode ilmu hukum. Kata Kunci: Putusan Mahkamah Konstitusi, Pemilu, Kartu Tanda Penduduk Abstract The implications of the constitutional court's decision regarding the use of resident identity cards and passports in the election of president and vice president in the framework of guaranteeing the right to vote in general elections. Related to this, problems arise regarding their implications. What are the implications of either directly or indirectly the decision of the Constitutional Court regarding the use of Identity Cards and Passports in general elections. The Constitutional Court as the executing agency of judicial power whose authority is to examine the Law against the State Constitution of the Republic of Indonesia of 1945 in order to realize a democratic state based on law as stipulated in Article 1 of the Constitution of the Republic of Indonesia of 1945. The result is implications directly consisting of the application of Identity Cards and Passports in lieu of the Permanent Voters List, Raising decisions that are self-executing, overriding Government Regulations Substituting the Law, overriding the decisions and regulations of the General Election Commission regarding new rules due to the Constitutional Court ruling and indirect implications consisting of Reducing the disputes over the results of the Presidential General Election, the Election Commission works extra. The future goal of this research is to know and contribute in the academic world, especially related to guaranteeing human rights, especially the right to vote in the presidential and vice presidential elections. This study uses the method of reviewing legislation in accordance with the method of law. Keywords: Decision of the Constitutional Court, Election, Identity Card

scholarly journals Dekonstruksi Hak Imunitas Anggota DPR Dalam Perspektif Equality Before The Law

2019 ◽  
Vol 1 (1) ◽  
pp. 22-45
Author(s):  
Supriyadi A Arief
Keyword(s):  
House Of Representatives ◽  
Constitutional Court ◽  
Normative Study ◽  
Second Amendment ◽  
The Law ◽  
The Republic ◽  
The Right

AbstractThe birth of the Constitutional Court Verdict No.16 / PUU-XVI / 2018 has implications for the authority of the Council of Honors (MKD) of the House Representatives of the Republic of Indonesia (DPR-RI) which was previously regulated in Article 2 of Act Number 2 of 2018 concerning the Second Amendment to Act Number 17 of 2018 concerning the People's Consultative Assembly (MPR), House of Representatives (DPR-RI), Regional Representative Council (DPRD), and Regional House of Representatives (DPD) (UU MD3). The problem in this study is First, how is the position of the right to immunity of members of the house of representatives in the perspective of equality before the law?. Second, how is the implication of the Constitutional Court No.16/PUU-XVI/2018 releated to the MKD (Council Honorary Court)?. This research is a normative study using a legislative approach, a historical apporach, and a case approach. The results of the study show that right of immunity of the DPR members not contradicting the principle of equality before the law as long as the meaning of the right of immunity does not cover the total immunity of the members of the DPR as citizens in general. In addition, the right of immunity only relates to the functions and authority and duties of the DPR. The verdict of the Constitutional Court No.16/PUU-XVI/2018 has implications on two things, the abolition of MKD authority in giving preliminary considerations before the Presidents written permission is born, as well as an agreement to call and request information from DPR Members in relations to criminal acts only through the Presidents permission.Keywords: House of Representatives, Constitutional Court, Equality Before The Law, RightOf Immunity.

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