judicial review
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2022 ◽  
Jan Böhle

The book examines the legal relationships in international loan syndicates based on the model contracts developed by the Loan Market Association (LMA). German law qualifies loan syndicates as partnerships. This qualification is questioned as it conforms neither to the expectations nor to the needs of the parties involved. With a constant comparative law approach (primarily England and France), the work brings together legal doctrine, legal theory and economics in order to develop practical solutions with regard to syndicate voting and duties of information in an LMA loan syndicate as well as the interpretation and judicial review of an LMA syndicate agreement.

2021 ◽  
Vol 5 (3) ◽  
pp. 262-270
Cut Nabilla Sarika ◽  
Sunarmi Sunarmi ◽  
Dedi Harianto ◽  
Rudy Haposan Siahaan

Fiduciary collateral as a type of collateral gives the rights of executorial to creditors to do parate execution on the object of fiduciary collateral when a debtor defaults. In practice, however, collateral misuses this right by seizing the collateral coercively and illegally. This becomes the basics for Judicial Review agains Article 15, paraghraphs 2 and 3 of Law No. 42/1999 on Fiduciary Collateral on January 6, 2020, and the Constitutional Court issued the Ruling No. 18/PUU-XVII/2019 which causes dispute in people. The research problems are whether the Constitutional Court’s Ruling is contrary to the collateral which gives easianess for the execution, how about the implementation of parate execution in the post – the Constituonal Court’s Ruling, and how about the legal consequence of debtor and creditor.The research use descriptive juridicial normative method. The data were gathered by conducting library research. The gathered data were analyzed qualitatively. The result of the analysis shows that Ruling does not impede the right of executing by creditors so that it is in accordance with the executorial right in fiduciary collateral, and creditors can still play their role in doing parate execution hen debitors default, on condition that debtors voluntarily hand in the fiduciary collateral. It may be difficult to do this in the foreclosure sale; therefore, it has to be certain in writing the clauses in the fiduciary contract. In this case, a Notary is required to add a clause about default in the contract and should refer to the Constituonal Court’s Ruling No. 18/PUU-XVII/2019 as the legal ground in writing fiduciary collateral contract.

2021 ◽  
Vol 6 (2) ◽  
pp. 135-145
Darmiwati Darmiwati2021

Fiduciary is the transfer of ownership rights to an object on the basis of trust provided that the object whose ownership rights are transferred remains in the control of the owner of the object. In the implementation of fiduciary, the goods that are pledged remain in the power of the debtor. Fiduciary guarantees are security rights for movable objects, both tangible and intangible and immovable objects, especially buildings that cannot be encumbered with mortgage rights. The principle of the object of the fiduciary guarantee is the creditor's trust in the debtor. In the fiduciary guarantee law, if the debtor defaults, the object of the fiduciary guarantee will be handed over to the creditor for the purpose of fiduciary execution. The fiduciary guarantee law gives the creditor the right to carry out the execution of the fiduciary guarantee object, the existence of this power, the creditor can withdraw the fiduciary guarantee object by means of parate execution. However, with the Constitutional Court Decision Number 18/PUU-XVII/2019 regarding the application for judicial review of Article 15 section (2) and section (3), which requires a breach of contract agreement between the creditor and the debtor and the debtor's willingness to submit the object of collateral, has eliminated the rights of creditors and eliminated the principle of material rights. Based on these problems, the question in the research is how to execute the object of fiduciary security after the Constitutional Court Decision Number 18/PUU-XVII/2019 and what is the impact of the Constitutional Court Decision Number 18/PUU-XVII/2019. The legal research method in this paper is normative juridical which is reform oriented research. The conclusion in this study should be in the fiduciary guarantee certificate including the completeness of the default clause, to strengthen the evidence that the debtor has committed a breach of contract. If the debtor (fiduciary giver), after being agreed by the parties, is deemed to be in breach of contract (default), the execution of the object of the fiduciary guarantee can be carried out independently.

2021 ◽  
Vol 7 (2) ◽  
pp. 300
Saniia Toktogazieva

This article pursues two main objectives. First, to identify the main factors behind the establishment of constitutional review in Central Asia. Second, to define how those factors have shaped the institutional design of constitutional courts. In doing so, this article revisits standard theories of comparative constitutional law in terms of the origin of judicial review. While the insurance theory dominates the present global discourse on judicial review, it cannot completely and accurately account for the origin of constitutional review in Central Asia. Rather, this article conveys that the main impetus and motivation behind the establishment of constitutional courts and their institutional designs has been the economic interests of Central Asian states, determined by the region’s political and historical context.

2021 ◽  
Vol 1 ◽  
pp. 59-80
Raffaele Caroccia

The paper deals with the treatment – both legislative and judicial – of maritime concessions in Italy. It first analyses legal provisions regarding the term of duration of such concessions and then focuses on some recent sentences. The first of them could have made stronger the conflict between the Italian legal environment and EU one, as the legislative automatic prorogation of concessions was deemed to be legitimate. Luckily, further rulings stated that this legislative statute is not in line with EU law and so has to be non applied. The Council of State solved the question very recently: not only Italian legal discipline was sentenced not to be in line with the EU law, but also some guidelines were given to step out the impasse. Judicial review so proved out to be once again the key element to grant rule of law, even when relationships between different legal environments are concerned.

2021 ◽  
Vol 280 (3) ◽  
pp. 15-40
Mark Tushnet

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures or courts specify whether their enactments or decisions will receive strong- or weak-form treatment. I examine examples of legislative allocations of issues to strong- and weak-form review and identify some practical and conceptual problems with such allocations. Then I examine judicial allocations — of the courts’ own decisions — to Strong- or weak-form categories. Here I consider Thayerian judicial review and what Professor Dan Coenen has called semisubstantive doctrines as examples of judicial choices to give their decisions weak-form effects. My conclusion is that these allocation strategies reproduce within strong- and weakform systems the issues that arise on the level of constitutional design. Weak-form systems and allocation may seem to alleviate some difficultiesassociated with strong-form systems in constitutional democracies. My analysis suggests that those difficulties may persist even when alternatives to strong-form judicial review are adopted.

Brahmantio Dwiputra ◽  

Law enforcement efforts should begin to consider and make victims as parties who have an interest in the judicial process. Victims of criminal acts so far have not received enough attention in an effort to fight for justice. The things that are considered and considered include legal certainty, expediency and justice. Legal certainty is closely related to the guarantee of protection to the community against arbitrary actions aimed at public order, while expediency is to create the greatest benefit or happiness to the community, while justice is truth, impartiality, can be accounted for and treats every human being at the same time. equal position before the law (equality before the law). Likewise, the judicial review institution as part of an extraordinary effort in enforcing the law should also be based on these three objectives. On the other hand, the unaccommodated or unaccommodated interests of the victims in the legal provisions encourage interpretations that lead to the defence of interests and justice for the victims, even though in the end it is considered contrary to the law. On this basis, reforms or formal legal reforms summarized in the Criminal Procedure Code, especially in the discussion on review, should be carried out immediately. Of course, these reforms must make the Criminal Procedure Code better and able to accommodate various problems that have not been accommodated so far. This new formal legal provision can later annul conflicting legal provisions between PERMA, the Constitutional Court's Decision and so on. In addition, it is hoped that the new KUHAP will also be able to end the pros and cons and confusion regarding the submission of a judicial review that has so far occurred in a criminal justice process.

2021 ◽  
Vol 12 (4) ◽  
pp. 080-093
Sergey S. Tsyganenko ◽  

The article addresses the issues of the modern development of judicial forms in relation to appellate proceedings in criminal proceedings in a systematic manner and in connection with the development and formation of cassation proceedings, as well as the exceptional procedures for review – judicial supervision and consideration of cases in newly discovered circumstances. This approach has not yet been developed and in terms of the systemic approach has some ambiguities and imperfections. At the same time, this use of almost all the main forms of judicial review takes place in Russia for the first time and needs in-depth analysis. In turn, the appellate procedure for judicial activity in the criminal process has reached a new level, it has significantly expanded and strengthened. A special judicial unit has been established in the judicial system, five appellate courts, which, in the light of the improvement of the procedural procedure for reviewing an appeal, significantly changes its position in the criminal justice system, due, in particular, to the properties of freedom of appeal and appellate validity of decisions and actions.

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