legal principles
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2022 ◽  
Vol 4 (2) ◽  
pp. 26
Bambang S. Irianto

This research is classified as normative legal research. The approach used is the statute approach, legal principles, legal theories, legal concepts. The juridical approach in this research is a problem approach based on the applicable laws and regulations, while the normative approach is a problem approach that examines the law in law so that conclusions can be drawn that are logical, coherent and systematic. Case Approach with the case approach is done by examining cases related to the issue at hand, and has become a decision that has permanent legal force.The results of the study show that there is still inconsistency in law enforcement in the EEZ for fishery potential by the Indonesian Navy in the Exclusive Economic Zone (EEZ), Indonesia is based on the United Nations convention regarding the Law of the Sea in 1982 with Law Number 17 of 1985 concerning legalization. on the United Nations Convention on the Law of the Sea (UNCLOS) and Law Number 45 of 2009 concerning Fisheries. Illegal fishing still occurs in the Indonesian Exclusive Economic Zone by foreign vessels, which is caused by weak patrols in the ZEEI area and is supported by the opening of the ZEEI area, the patrol vessels are less modern to compete with foreign fishing vessels, and the fish resources that are in the ZEEI have not been exploited by Indonesian fishermen according to Law No. 45 of 2009 concerning Fisheries is carried out by legal proceedings and is tried in court, and is sentenced to a sentence which is usually a fine. In the event that a prison sentence is allowed.  

2022 ◽  
pp. 85-91
V. V. Borodin ◽  
T. G. Furman

The article analyzes the latest versions of federal laws that made changes to the mediation procedure — allowed judges to resign to perform the procedure of professional mediation; provided an opportunity to notarize a mediation agreement, giving force to an enforcement document; the procedure of «judicial reconciliation» appeared. It is proved that mediation in its essence is not the «activity» of professional intermediaries, mediators, but a «procedure», namely, a structured process that is an alternative dispute resolution technology. The legal principles of the mediation process are disclosed: voluntariness, confidentiality, neutrality, passionlessness and independence of the mediator, independent decision-making by the parties, equality of the parties.

2022 ◽  
Vol 11 (4) ◽  
pp. 409-443
Rob Batty

Several high-profile rebrands, including those by Twitter and Starbucks, have involved removing text from logos. This move towards wordless, pictorial trade marks raises a difficult question about how the scope of protection of a registered trade mark should be determined. This article examines the particular issue of how much weight should be given to the idea or concept underlying a pictorial mark when assessing whether a defendant’s junior mark is ‘confusingly similar’. Drawing on legal principles and case examples from Europe, the United Kingdom, Singapore and New Zealand, it is claimed that courts and adjudicators should be careful not to overweight conceptual similarity. It is argued that a lack of care in assessing conceptual similarity risks awarding one trader overbroad protection, which may be tantamount to conferring on one trader a monopoly in an idea. A lack of care may also undermine the logic of a registration system by untethering protection from what is recorded on the Register, and may make trade mark law less predictable and certain. * The author declares that he was junior counsel in a case discussed in this article, Carabao Tawandang Co Ltd v Red Bull GmbH HC Wellington CIV-2005-485-1975, 31 August 2006. The views represented in this article are the author’s own, and do not reflect the views of his employer at the time, or the views of the client represented in that particular case.

2022 ◽  
Vol 2022 (1) ◽  
pp. 143-158
JC Sonnekus

According to the headnote attached to the most recent decision under discussion, the litigation turned on the quantification of the total loss suffered by M as alleged holder of a right of habitatio after S as reputed owner of the farm revoked the verbal agreement between the parties entitling M to occupy the dwelling ad infinitum on condition that he renovates the dwelling to a habitable state. Notwithstanding the conviction of the judges involved, it is clear that at no stage were any of the requirements for the acquisition or vesting of a limited real right of habitatio complied with. No limited real right was registered against the farm and S as the alleged grantor of the limited real right was at no stage the owner of the property. He could not have been entitled to burden the property of another with such limited real right. A contractual arrangement between the parties, however, did exist granting the claimant an entitlement to occupy the dwelling. The initially friendly relations between the litigants soured abruptly in February 2013 when S evicted M from the farm because of a supposed blasphemous comment by M. This happened after the claimant had already invested significantly in the restoration and modernisation of the old dilapidated dwelling. “The plaintiff regarded this as a repudiation of the contract between him and the defendant, accepted it as such and left the farm, effectively halting the renovation project” (par 14 read with par 5.4 of the 2016-decision). His claim for compensation of the loss suffered was held by the court to be limited to the amounts reflected in the receipts representing the cost of building material when it was acquired. It is submitted that the court should also have taken note of the loss suffered as positive interest, because the claimant forfeited the calculated benefit of life-long free occupation in the restored dwelling. Because of the underlying agreement between the parties to the litigation, the patrimonial benefit that accrued to the estate of the owner of the farm due to the objective rules of accessio cannot be classified as actionable unjustified enrichment. The principles of unjustified enrichment do not apply – the resulting detriment or loss of M was cum causa and not sine causa. The remarks of the court pointing to unjustified enrichment do not convince. Damages should have been calculated to cover the loss in positive interest of the claimant and not merely his negative interest, ie the amounts paid for the building material used in the renovation. The court, however, held: “I’m satisfied that the plaintiff has adduced sufficient evidence to prove his claim for the costs of renovating the farmhouse on a balance of probabilities” (par 23). The last mentioned mode of quantification of the loss suffered would have been more in place where merely a delict was involved, as eg where the damaged motor vehicle should be repaired to the state it was in before the accident occurred. Had the judges in this case done a correct assessment of loss upon cancellation for breach of contract, it would have led to a respect of the rule of law and would not have been to the detriment of the claimant. The legal principles that should have been applied had already been clearly formulated more than a century ago: “The sufferer by such a breach should be placed in the position he would have occupied had the contract been performed, so far as that can be done by the payment of money, and without undue hardship to the defaulting party …” Victoria Falls & Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd (1915 AD 1 22).

2022 ◽  
pp. 649-670
Dinah Payne

As the use of software is present in so many activities today, it is important for business in particular to be aware of challenges that may seem different today than before the prevalence of software in our lives. Agile project management is one example: this more recent and nimble approach to software development presents its own challenges. Fortunately, the guiding legal principles related to traditional contract formation and execution are based in principles of fairness and equity, making the customization of legal principles to Agile contracting a reasonable endeavor. This chapter presents basic contract law and such law as it more specifically relates to contracts dealing with Agile software development.

2021 ◽  
Vol 21 (4) ◽  
pp. 447
Mosgan Situmorang

Pacta sunt servanda is a legal principle that applies universally. With this principle, everyone is expected to carry out an agreement made with other parties voluntarily. To enforce the principle by the court in case of dispute in the implementation of the agreement, it requires conditions that must be met. In the context of an arbitration agreement, it must also meet specific rules stipulated in the Arbitration Law. In practice, there is still disobedience to this principle where the parties who have been bound by an arbitration agreement are still taking the litigation in solving their case. In this research, the problems examined are how the principle of pacta sunt servanda is regulated in the arbitration law and how strong this principle is applied. The method used in this research is normative juridical. Based on the research, it is concluded that the implementation of the pacta sunt servanda principle is regulated in several articles of the Arbitration Law. The pacta sunt servanda principle is not valid absolutely because it is deviated by other laws or legal principles. It is recommended that parties in an agreement shall understand the choice of dispute settlement well including the consequences of such choice.

2021 ◽  
Vol 16 (2) ◽  
pp. 362-392
Lego Karjoko ◽  
I Gusti Ayu Ketut Rachmi Handayani ◽  
Abdul Kadir Jaelani ◽  
Jaco Barkhuizen ◽  
Muhammad Jihadul Hayat

Medical disputes in Indonesia are regulated by a host of laws. The important question that needs to be asked, however, is whether those laws have guaranteed justice for patients and doctors. This study aims to analyze the urgency of restorative justice in medical disputes. It explores secondary data and is normative legal research. The data was gathered through library research consisting of data collection activities based on several publications. This study focuses on legal principles with a doctrinal approach. It concludes that restorative justice is urgent to use in medical, criminal, and civil cases. This is evident in the will of the Health Law which prioritizes mediation as the first mechanism before being brought to trial. Furthermore, the use of restorative justice in medical dispute resolution is driven by the presence of three conditions: First is structural challenges among law enforcers and their limited capabilities in dealing with complex medical cases; Second is the condition of Indonesian correctional institutions which is overburdened and unable to provide maximum output, and the third is the relatively low number of Indonesian health workers. (Sengketa Medis di Indonesia telah diatur dalam beberapa peraturan perundang-undangan. Namun, pertanyaan penting yang perlu diajukan yaitu apakah peraturan yang ada telah menjamin kedilan bagi pasien dan dokter. Penelitian ini bertujuan untuk menganalisis urgensi prinsip keadilan restoratif dalam penyelesaian sengketa medis. Penelitian ini merupakan penelitian hukum normatif yang mengkaji data sekunder. Pengumpulan data dilakukan dengan studi pustaka (library research), yaitu kegiatan pengumpulan data yang berasal dari berbagai literatur. Penelitian ini fokus pada asas-asas hukum dengan pendekatan dokrinal. Kesimpulan dari penelitian ini adalah bahwa prinsip keadilan restoratif penting diterapkan dalam kasus medis, pidana, maupun perdata. Ini misalnya dapat dilihat dari i’tikad baik dalam Hukum Kesehatan yang mempriorotaskan mediasi sebagai mekanisme pertama sebelum dibawa ke pengadilan. Dalam konteks sengketa medis, prinsip keadilan restoratif menjadi urgen untuk diterapkan sedikitnya karena tiga hal; pertama adalah tantangan struktural di kalangan para penegak hukum serta kemampuan mereka yang terbatas dalam menghadapi kasus medis yang biasanya kompleks. Kedua, kondisi lembaga pemasyarakatan Indonesia yang over kapastias sehingga tidak mampu memberikan output yang maksimal; dan ketiga adalah jumlah tenaga kesehatan di Indonesia yang relatif rendah.

Cepalo ◽  
2021 ◽  
Vol 5 (2) ◽  
pp. 131-140

Sumber Urip Sejati Utama Ltd. is a company that runs in the fertilizer industry. Technically, Sumber Urip Sejati Utama Ltd.'s board of directors purchase urea fertilizer for the factory, then sold the urea fertilizer to consumers. As a urea fertilizer distributor, Sumber Urip Sejati Utama Ltd. should fulfil tax administration obligations, such as reporting tax payments and calculations. However, Sumber Urip Sejati Ltd.’s administration is highly engineered by the company’s directors because Sumber Urip Sejati Utama Ltd. is operating even though it is declared bankrupt. The situation escalades when the company is faced with unfulfilled tax obligation. Therefore, the main problem in this research is the director board of Sumber Urip Sejati Utama's Ltd. civil liability and legal consequences towards the tax in debt due to the board’s negligence. The research method used in this study is a normative juridical approach, which is an approach based on the primary legal material by examining theories, concepts, legal principles and legislation. The research elaborates that the civil liability of Sumber Urip Sejati Utama Ltd.’s director board towards the tax in debts is in a form of joint responsibility or responsibility. Moreover, the legal consequences faced by the director boards due to their negligence is that directors should bear all of the company's debts to creditors and third parties, to the extent of using the directors' assets to cover the losses.

2021 ◽  
Vol 11 (5) ◽  
pp. 140-158

The contradiction with the public order of the Russian Federation is an unconditional basis for cancellation of the decision of the arbitration court and refusal to issue a writ of execution. What is meant by the public policy? There is no definition in the legislation. According to the position of the Supreme Court of the Russian Federation under the public policy are understood the fundamental legal principles (principles) having the highest imperative and universality. Study and analysis of the practice of consideration and resolution of cases about the cancellation of arbitration court decisions and refusal to issue writs of execution by arbitration courts and courts of general jurisdiction shows that the content of the concept of public policy in view of the abstract nature of normativity, inherent in the concept of fundamental principles of Russian law, is interpreted by judicial practice very widely. Since establishing in what cases the decision of an arbitration court violates the fundamental principles of Russian law, and hence the public policy of the Russian Federation, refers to the discretion of the court considering the case, and the boundaries of application of this ground for reversal of decision are determined by the discretion of the court in the context of the specific circumstances of the case. The article also concludes that the position of the Constitutional Court of the Russian Federation, which lies in the fact that since the arbitration courts do not exercise judicial power and are not part of the judicial system of the Russian Federation, the state courts are not empowered to verify the legality of decisions of arbitration courts, which involves identifying the correctness of interpretation and application of law by the court of arbitration, must be understood systematically. According to the author, it is necessary to take into account that the function of state courts to control arbitration proceedings consists, among other things, in ensuring compliance of the results of arbitration proceedings with fundamental legal values, which include the legality of decisions rendered by arbitration courts in terms of interpretation and application of rules of law.

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