scholarly journals The Construction and Practice of the Right of Residence System from the Perspectives of China

2021 ◽  
pp. 29-34
Author(s):  
Miao Chungang
Keyword(s):  
Social Life ◽  
Comparative Method ◽  
Civil Law ◽  
Civil Code ◽  
Social Needs ◽  
Roman Law ◽  
Value Judgments ◽  
Cultural Traditions ◽  
History Of ◽  
The Right

In the history of civil law, the residence right system, as a representative of human servitude, originated from Roman law and continued to develop in the "French Civil Code" and "German Civil Code". Based on the differences between Chinese and Western social and cultural traditions, Japanese civil law did not accept the human servitude system in the initial legal inheritance, and modern Chinese civil law also abandoned the human servitude system based on similar cultural value judgments. With the major changes in social life, based on the response to real social needs, the "Civil Code of the People's Republic of China" created a system of residency rights. This article uses the comparative method to study the historical evolution of the housing rights system, and explore the legal and cultural roots behind the establishment of the system. At the same time, with the help of typical cases, it analyzes the practice of the right of residence after the promulgation of the Civil Code and discusses the legal perfection of the right of residence system. This article points out the unpaid nature of the right of residence, which can easily hinder the development and effectiveness of the right of residence system. In the future judicial practice, we need to expand the interpretation of the law, expand the scope of the right of residence, and expand the legal function of the right of residence system, so as to make full use of social resources to meet the public's housing needs.

A Comparative Perspective on the Concept of Ownership in Russian Law: From the Svod Zakonov to the 1994 Civil Code

2016 ◽  
Vol 41 (3-4) ◽  
pp. 263-341 ◽  
Author(s):  
Murray Raff ◽  
Anna Taitslin
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Local Variation ◽  
Operative Management ◽  
Land Ownership ◽  
Civil Code ◽  
State Ownership ◽  
Roman Law ◽  
The Right ◽  
Unitary Concept

The modern European unitary conception of ownership emerged from the dissolution of feudalism and achievement of a deeper understanding of Roman law to become an ideal of property law in the European Civil-Law tradition. Prior to its dissolution European feudalism represented hierarchies of legal tenure in land, such as the division of land ownership between dominus directus (direct owner) and dominus utilis (beneficial owner) and overlapping hierarchies of social class descending from monarchy and aristocracy to bonded serfdom. Support for the resolution of divided land ownership and victory for the unitary concept of ownership was found in the Roman law tradition. The dissolution of feudal hierarchies took different historical courses in the legal traditions that we now identify as the French, German, Common-Law and Russian legal systems and with great local variation even within those emergent traditions. The unitary concept of ownership is found today in the French and German Civil Codes and is for practical purposes reflected in the prevalence of the common-law tenure of freehold. In Russia the systemized digest of the laws of the Russian Empire, the Svod Zakonov of 1832, provided no civil-law notion of divided ownership or perpetual rights. In the Soviet era exclusive state ownership of land and the means of production was also viewed as unitary, which raised serious questions about how state agencies and enterprises could engage in transactions with their assets and products. Venediktov’s celebrated doctrine of the right of operative management, codified in the Civil Code of the rsfr of 1964, provided legal recognition of de facto proprietary rights for state enterprises. This introduced a form of divided ownership ‘on the ground’ despite the dogma of unitary state ownership. This reality further manifested itself in widespread division of ownership between land and buildings. The Civil Code of the Russian Federation of 1994 retained and even extended some of these solutions that relied on split or divided ownership. This might have been a pragmatic way forward in the early 1990s, however twenty years later the demands of a modern sophisticated legal system require a policy trajectory back toward a modern European unitary conception of ownership. The Russian Civil Code thus should be extended in this direction.

Kajian Yuridis Pengesampingan Pasal 1266 dan Pasal 1267 Kitab Undang -Undang Hukum Perdata sebagai Syarat Batal dalam Perjanjian Kredit Perbankan

2017 ◽  
pp. 65-89
Author(s):  
Rocky Marciano Ambar ◽  
Budi Santoso ◽  
Hanif Nur Widhiyanti
Keyword(s):  
Research Method ◽  
Code Of Ethics ◽  
Civil Law ◽  
Banking System ◽  
Civil Code ◽  
Bank Credit ◽  
Dominant Position ◽  
Legal Implications ◽  
Credit Agreement ◽  
The Right

Banks in credit agreements use more standard agreements, standard contracts in 2 (two) things, (1) There is an unbalanced position between banks and debtors, banks that have a more dominant position and debtors. (2) There is an understanding of the principle of freedom of contracting and without limits. The Bank has the freedom to seek the form and content of the agreement. Code of Ethics in agreement. The provisions of the Civil Code provide types of compensation for parties. Based on the background, then for problems the problem is written (1). Does the inclusion of Article 1266 and Article 1267 of the Civil Code on the banking system have collected the principles of balance and justice. (2) What are the legal implications of the exclusion clause. The research method is normative juridical research. The result of this research is the neglect of civil law and the principle of compensation is the principle of balance. The basic principle according to Rawls is that it is unfair or more people. in the sense of "freedom of results", in other words. is the nature of the debtor in a bank credit agreement. For the legal implications of the clause that excludes Article 1266 and Article 1267 of the Civil Code concerning the right of the debtor to the debtor. Legal efforts in finding and resolving problems that cannot be made by a decision due to the imbalance of the parties in the agreement. For people who make changes, no party will be harmed.

scholarly journals THE CIVIL LAW NATURE OF ELECTRONIC MONEY

2020 ◽  
Vol 6 (1) ◽  
pp. 100
Author(s):  
Liudmyla Panova ◽  
Vitalii Makhinchuk
Keyword(s):  
Practical Implication ◽  
Comparative Method ◽  
Civil Law ◽  
Synthesis Method ◽  
Electronic Money ◽  
Holistic View ◽  
Analysis And Synthesis ◽  
Logical Method ◽  
Definition Of ◽  
The Right

The purpose of the article is to examine the civil law nature of electronic money. The subject of the research is the features of the civil law nature of electronic money. Methodology. Research methods are chosen based on the object, subject and purpose of the study. The study used general scientific and special methods of legal science. Thus, the analysis and synthesis method as well as the logical method were used to formulate a holistic view on electronic money, their features and legal nature. The logical-semantic method was used to establish the meaning of the concepts “electronic money”, “non-cash money”, “payment instrument”, “electronic payment instrument”. The comparative method was used when analyzing scientific categories, definitions and approaches. The legal modeling method was applied to formulate the author’s definition of the term “electronic money”. Results. The article generalizes scientific views on the civil law nature of electronic money. A distinction has been made between electronic money and currency unit, non-cash money and the right to claim. As the result it has been established that electronic money is the monetary obligation. Practical implication. The study should assist in developing the unified approach to the issue of the civil law nature of electronic money. Value/originality. As the result of the study the author’s definition of the concept “electronic money” with regard to its civil law nature has been proposed.

Plena Potestas and Consent in Medieval Assemblies: A Study in Romano-Canonical Procedure and the Rise of Representation, 1150–1325

Traditio ◽  
1943 ◽  
Vol 1 ◽  
pp. 355-408 ◽  
Author(s):  
Gaines Post
Keyword(s):  
Thirteenth Century ◽  
Legal Theory ◽  
Roman Law ◽  
New Approach ◽  
Royal Authority ◽  
Strict Interpretation ◽  
History Of ◽  
Full Power ◽  
The One ◽  
The Right

By the end of the thirteenth century the royal writ of summons to Parliament usually specified that communities send representatives with “full power” to consent to whatever should be ordained by the king in his court and council. This “full power” was the famous plena potestas which was stated in the mandates carried by knights and burgesses to Parliament and by delegates of cities and towns to Cortes and States General, and which is still current in proxies for stockholders' meetings. It has, of course, like almost every word of the terminology in documents relating to representation, challenged interpretation: on the one side is the argument of J. G. Edwards, who confines himself to England, that plena potestas implied an almost political or sovereign consent which limited the royal authority; on the other, the assumption that it was an expression of involuntary consent to the acts and decisions of the royal government. In general, of course, whatever modern scholars have decided as to the right of consent has resulted either from modern conceptions of representation or from a strict interpretation of the terminology in the sources for the history of assemblies. No one has examined plena potestas in the light of the legal theory and procedure of the thirteenth century It is possible that by studying how legists and canonists viewed the meaning of plena potestas—for it, like most of the terminology in the mandate, came from Roman Law—we can find at least a relatively new approach to the problem of medieval consent.

A megbízási szerződés szabályozásának történeti vázlata Romániában

2020 ◽  
Vol 3 (1) ◽  
pp. 5-22
Author(s):  
Előd Bartis
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Roman Law ◽  
Historical Overview ◽  
Commercial Code

The study constitutes a brief historical overview of the development of the contract of mandate, as regulated in Romanian law. Firstly, the roots of this contract in antiquity and in Roman law are discussed, and the evolution of its major characteristics are revealed. Subsequently, the author presents the regulations applicable to the contract of mandate under the first modern codifications of Romanian civil law in the Calimach and Caragea codes, the Commercial Code of Wallachia of 1840, the Romanian Civil code of 1864, the Commercial Code of 1887, and the Civil Code of 2009, currently in force. The author presents the major historic evolutions of the Romanian regulation pertinent to the nature of the contract, the parties, their remuneration, the effects of the contract inter partes and towards third persons as well as the changes in regulatory logic from the differentiation of commercial and civil mandate to the unification of the two institutions in the Civil Code of 2009.

scholarly journals Efectele partajului în noul Cod civil român: o (r)evoluție?

2021 ◽  
Vol 65 (4) ◽  
pp. 415-455
Author(s):  
Dragoș Isache ◽  
Keyword(s):  
Social Needs ◽  
Roman Law ◽  
Theoretical Level ◽  
Legal Regime ◽  
Economic Level ◽  
Legal Nature ◽  
Practical Reality ◽  
Joint Ownership ◽  
The Right ◽  
Made In

Joint possession and settlement needed revival in 2011, yet the Legislator did not do much about it. It took from jurisprudence the regulations regarding joint possession (in the broad sense) and simply built a legal regime that in no way can satisfy the economic and social needs of joint holders. And the possibility to enter a management agreement remains in a very theoretical level that is far from practical reality, where such an agreement between joint owners does not exist. Settlement – the place where joint owners end their joint possession – was the second item that required modifications. In 1864, the Legislator took the declarative effect of settlement from French law without an analysis of its consequences on the economic level. Families were protected, but third parties, holders of real rights on the joint goods were sacrificed. This made settlement unattractive and unwanted. In 2011 the Legislator correctly identified the problem and offered the solution – that had been adopted by the French legislator since 2006, even under the rule of the declarative effect – a real subrogation with a particular title:  resettlement of the guarantee on the assigned goods. This is sufficient for the rights of guaranteed creditors to be maintained in all cases. With this, the right of each joint owner to fully and efficiently use his joint ownership right was insured. Was another change in this area needed? Apparently not. Nevertheless the Legislator unexpectedly decided in 2011 to renounce the fiction of the declarative effect. What did it replace it with? The translative effect of Roman law? No! It imagined a new effect of settlement: the constitutive effect. The shock of the change was mainly felt psychologically. At that time, the fiction of the declarative effect corresponded to a psychological perception according to which the heir held the goods directly from the decreased, perception that was well grounded after more than 140 years of existence. Just as the fiction of the declarative effect – in fact a rule born out of conjunction –generated numerous debates over centuries, the new constitutive effect of settlement was had to accept in notary practice. The cause? The fear that the new consequences of the constitutive effect will conflict with the imperative rules of the community of goods in the case of settlement parties who were  married on the settlement date. Indeed, any community matrimony regime is able to absorb in the settlement estate any goods purchased or obtained with onerous title by any of the spouses. But, the joint ownership right of settlement was that of an own goods. Moreover, the whole settlement was disputing own rights of the married settlement party. The doctrine limited itself to announcing the introduction of the constitutive effect without building a detailed analysis of its effects on the matrimony regimens. On our part, we suggested, at first an exhaustive analysis of the consequences of the translative and declarative effect of settlement. The purpose was to identify a ‛natural’ legal side of settlement that is its constants. Then we proved that the constitutive effect should be unitarily interpreted and applied. First of all, settlement produces a replacing effect. The share is replaced with an exclusive ownership right. It is natural that the exclusive ownership right obtained by each settlement party has the legal nature of the share it replaces. In the marital community field, this is an own goods of the married settlement party. Then, in case of settlement with allowance – that is expected to generate even more controversies – we have shown that is division does not degenerate settlement in two legal acts: settlement and sale. The settlement party who paid the allowance does not purchase anything; the settlement party receiving the allowance does not sell anything. The Legislators does not authorize such an idea, especially now that we are on the realm of the constitutive effect, where the idea of an exchange between settlement parties is excluded. The constitutive effect of settlement with allowance should be unitarily applied. For the married settlement party, the payment of the allowance represents an obligation to give that has the legal nature of an own obligation. Only its execution is carried out by using common funds of the spouses. And the increase acquiring of the goods is not a purchase in itself as it is made in the same spirit of the replacement effect of the share.

Legal Features of the Provisions of Unjust Enrichment in Jordanian Civil Law and Comparative Law

2021 ◽  
pp. 1-14
Author(s):  
Sahib al-Fatlawi ◽  
Derar al-Daboubi
Keyword(s):  
Civil Law ◽  
Comparative Law ◽  
Civil Code ◽  
Roman Law ◽  
French Law ◽  
Independent Source ◽  
Unjust Enrichment ◽  
Legal Provisions ◽  
Islamic Jurisprudence

Abstract Unjust enrichment is considered one source of obligations, which stands in contrast to harmful acts as another source of obligation in the Jordanian Civil Code (JCC). The Unjust Enrichment Rule has developed historically from Roman law, through Islamic jurisprudence, then French law and jurisprudence to modern laws, such as that in Egypt influenced by French law. All these laws have recognised the Unjust Enrichment Rule as an independent source of obligation. Although the JCC was influenced by Islamic jurisprudence, Arab laws, such as the Egyptian Civil Code, and foreign-influenced Arab laws, its features distinguish it from other laws, either in terms of naming the source or the details related to its legal provisions. JCC’s special features need to be highlighted, defined and evaluated for comparison with other laws, i.e., proving beneficial when enacting a new JCC or defining it as unique rather than a copy of other precedent Arab laws.

scholarly journals Investigating the Custody in Shiite Jurisprudence and Civil Rights in France

2016 ◽  
Vol 9 (7) ◽  
pp. 230
Author(s):  
Mahdi Nazemi ◽  
Abbas Ali Salehi
Keyword(s):  
Civil Rights ◽  
Child Custody ◽  
Civil Law ◽  
Civil Code ◽  
Third Party ◽  
Child Rearing ◽  
Religious Orders ◽  
Spiritual Dimension ◽  
The Right ◽  
Legal Opinion

Custody in Islam is the procedure for child rearing, which effects his physical and material context. What kept custody of the child apart from other issues, is attention to the spiritual dimension of the child and considering the child needs. Child custody and disputes on it leads to be an important issue for parents in countries civil law. In civil rights it becomes as well as the important of religious orders and opinions of jurists, in this regard recommendations are provided on how to improve the supervision and laws of our country's children for a better life. Therefore, in this case, it is needed to examine the legal opinion regarding to the custody of the two legal systems of Iran and France. The first custody must be investigated and have priority to the custody of the father or mother. In Iranian Civil Code the right and duty of parents in custody knows some right and some homework. In French Civil Code custody of parents towards children in all areas of life for the growth, maintenance and education of children is common and conspicuous aspects of its obligatory. The exercise of the custody right is shared between parents and conditions are considered the parent with custody situations where their absence is excused. Parents under certain circumstances can have the right to self-disclaimer or leave to a third party to ask the court about the right.

Liberty and the Common Law

1945 ◽  
Vol 9 (1) ◽  
pp. 2-16 ◽  
Author(s):  
Lord Wright
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
Civil Law ◽  
The State ◽  
Roman Law ◽  
Case System ◽  
The Common ◽  
The Law ◽  
The Individual ◽  
The Right

In preparing the few and elementary observations which I am about to make to you tonight I have wondered if the title I chose was apt or suitable. The Common Law is generally described as the law of liberty, of freedom and of free peoples. It was a home-made product. In the eighteenth century, foreign lawyers called it an insular and barbarous system; they compared it to their own system of law, developed on the basis of Roman and Civil Law. Many centuries before, and long after Bracton's day, when other civilised European nations ‘received’ the Roman Law, England held back and stood aloof from the Reception. It must have been a near thing. It seems there could have been a Reception here if the Judges had been ecclesiastics, steeped in the Civil Law. But as it turned out they were laymen, and were content as they travelled the country, and in London as well, to adopt what we now know as the Case System, instead of the rules and categories of the Civil Law. Hence the method of threshing out problems by debate in Court, and later on the basis of written pleadings which we find in the Year Books. For present purposes, all I need observe is that the Civil Lawyer had a different idea of the relation of the state or the monarch to the individual from that of the Common Lawyer. To the Civil or Roman Lawyer, the dominant maxim was ‘quod placuit principi legis habet vigorem’; law was the will of the princeps. With this may be compared the rule expressed in Magna Carta in 1215: No freeman, it was there said, was to be taken or imprisoned or exiled or in any way destroyed save by the lawful judgment of his peers and by the law of the land. Whatever the exact application of that phrase in 1215, it became a text for fixing the relations between the subject and the State. Holdsworth quotes from the Year Book of 1441; the law is the highest English inheritance the King hath, for by the law he and all his subjects are ruled. That was the old medieval doctrine that all things are governed by law, either human or divine. That is the old doctrine of the supremacy of the law, which runs through the whole of English history, and which in the seventeenth century won the day against the un-English doctrine of the divine right of Kings and of their autocratic power over the persons and property of their subjects. The more detailed definition of what all that involved took time to work out. I need scarcely refer to the great cases in the eighteenth century in which the Judges asserted the right of subjects to freedom from arbitrary arrest as against the ministers of state and against the validity of a warrant to seize the papers of a person accused of publishing a seditious libel; in particular Leach v. Money (1765) 19 St. Tr. 1001; Entick v. Carrington (1765) 19 St. Tr. 1029; Wilkes v. Halifax (1769) 19 St. Tr. 1406. In this connexion may be noted Fox's Libel Act, 1792, which dealt with procedure, but fixed a substantive right to a trial by jury of the main issue in the cases it referred to.

scholarly journals The legal nature of fiduciary duty in civil law of Ukraine

2021 ◽  
Author(s):  
H. O. Urazova
Keyword(s):  
Civil Law ◽  
Legal Protection ◽  
Fiduciary Duty ◽  
Roman Law ◽  
Joint Activities ◽  
Legal Nature ◽  
The Subject ◽  
Main Thing ◽  
The Right ◽  
Proper Behavior

The variety of fiduciary legal relations in the civil law of Ukraine requires the study of their individual elements, in particular, the fiduciary duty. Therefore the purpose of this article is to clarify the legal nature of the fiduciary duty, in order to avoid legal uncertainty, which leads to difficulties in law enforcement and, as a result, ineffective legal protection of violated rights of a person due to non-fulfillment or improper fulfillment of such an obligation in relation to her.Analyzed such concepts as "fides", "fiducia", duty in civil law. It has been established that the first, respectively, in Roman law had several meanings, but the main thing is the trust of the participants in civil relations to each other. The second have to understood as the proper behavior of the subject of civil relations, the content and model of which are determined by the requirements of the rule of law, the will or persons authorized by the transaction or other legal facts.It was found that the fiduciary duty is the proper behavior of the subject of a trust relationship, due to the conclusion of certain agreements (for example, commissions, property management, joint activities, the provision of lawyer services, etc.), or the occurrence of legal facts (election of a body or person of a legal entity, who (who) has the right to act on her behalf, the establishment of guardianship or trusteeship, the death of an individual, etc.).

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