The application of good Faith principle of precontract in common law and civil law contry

In Indonesia, development of application of good faith principle in legal agreement focuses on the application of Civil Code (KUHPerdata) where scope is still placed on the implementation of agreement. It is as if Civil Code has not recognized the existence of good faith principle at pre-contract stage. In comparison, according to modern agreement theory that parties who suffer losses in pre-agreement/contract stage or at negotiation stage, their rights also deserve to be protected. Thus, pre-agreement/contract promises will have legal implications for those who violate them. This will be seen in countries that have common law and civil law systems. An important issue in this case relates to the principle of good faith at the pre-contract stage which creates a gap with the provisions in the legislation. To analyze these problems, legal research was conducted with the black-letter law paradigm. Technique of collecting legal materials in this research used library research. Legal materials are analyzed deductively and utilize the method of interpretation (hermeneutics). Results showed that the application of the principle of good faith at the pre-contract stage in Common Law and Civil Law countries had differences. In the Civil Law system, good faith is highly emphasized in the stage of contractual negotiation. Whereas in the Common Law system, it prioritizes efforts to restore rights of aggrieved party in pre-contract stage. Parties who do not have good faith at the pre-contract stage have legal consequences for cancellation of the agreement.

Standardized PPP Contract in Korea and its Implications for Latin America and the Caribbean

The standardization of PPP contracts in Korea has played a key role in establishing PPP institutional frameworks in the civil law system in which there must be legal and institutional safeguards for the long-term PPP contracts. The reliability of standardized contracts is secured due to the fact that the standardized PPP contract has been prepared by the statutory PPP agency under the approval of the Ministry of Economy and Finance, an influential ministry within the government. The standardization of PPP contracts has been of great utility for both the competent authorities and private partners. The standardized contract has streamlined negotiations. The private partner was able to trust in the major risk allocation declared through the standardized contract in handling land acquisition, construction completion, operation and demand, and termination. We found out through our survey that there are similarities between Korea and LAC countries in that most LAC countries have adopted the civil law system and the countries have developed similar payment types for PPP and risk allocation principles. The experience and lessons on standardized PPP contract in Korea can be of great utility to LAC countries.

Obligational Relations in the Midst of Digitalization of Business Activity: The Concept and Types

Introduction: civil obligations are one of the central institutions of the civil law system, which is currently undergoing a new stage of understanding and development. The domestic civil law quite clearly identified the tasks that are urgent for theoretical, as well as comparative and practical research aimed at analyzing the problems of obligations that arise from civil law and business contracts. Purpose: to analyze the features of the regulation of market relations at the contractual level in the midst of digitalization of business activity. Methods: the methods of systematicity, analysis, and comparative law are used in the work. Results: the legal regulation ensures the implementation of equality as one of the most important principles of civil law: by setting additional requirements for entrepreneurs, the state equalized them with other participants in the turnover. This also dictates the need for the active introduction and application of legal means as proactive actions based on the permissibility of the law. One of them is a contract, so the specifics of business relations are most clearly demonstrated by contractual obligations. Conclusions: the provisions of the Civil Code of the Russian Federation, in addition to the general provisions on obligations, also contain provisions that are only applicable to obligations related to the implementation of business activities. Business obligations are specific in nature, and sometimes directly opposite to traditional obligations. As a result of the process of evolution, the digital economy has become one of the main engines of the growth of the global economic system. The widespread use of digital technologies increases competition in global markets and encourages leading industrial countries to implement appropriate economic policies and develop contractual relations.

Analisis Yuridis Omnibus Law dalam Penyusunan Rancangan Undang-undang Cipta Kerja

Indonesia is a country that adheres to the civil law system, many regulations from central to regional. As a result, many laws and regulations overlap in both vertical and horizontal directions. To organize overlapping regulations, coordination must be done. The concept of comprehensive law has been successfully applied in most countries that adhere to the common law system, but Indonesia that adheres to the civil law systern is still unfamiliar with the term. Therefore, the goals of this research are to analyze the comprehensive legal position in the preparation of Indonesian law and to discuss comprehensive law applied in the law of job creation. This research is normative legal research, used statutory approach and conceptual approach. The results show that the status and application of comprehensive law is v’ery imponant for the development of the law to enforce legal certainty. The formulation of legislation with a comprehensive legal concept requires in-depth research, and for the sake of transparency in the formatinn of many political parties involved, so as nnt to cause problems and harm the public interest, especially the social interest.

Enlightenment of American Legal Theory and Practice of "Piercing the Corporate Veil" to China

Observing the current legal system and theory of America, "piercing the corporate veil" is in a state of "chaos" in both of them. How can China learn from the rule of law and the theory of "piercing the corporate veil"? How to avoid its harm and gain its benefits? Due to different national conditions and judicial systems, also differences between civil law system and common law system, and at the same time, the world is in the era of globalization, the exchange of legal culture of Chinese legal system is expanding and deepening day by day. Therefore, it is necessary to study the rule and theory of "piercing the corporate veil". This paper systematically summarizes the current situation of the rule and theory of "piercing the corporate veil" in America, explores the causes of the confusion, and puts forward some suggestions to prevent the occurrence of problems in China after transplanting this rule, which is very necessary and timely.

A comparative assessment of the agency concept, with special regard to the Romanian approach

The concept of agency was developed and refined in the common law system and, thereafter, imported in the continental civil law system where was confronted with the classic institution of the mandate, based on the representation principle. The modern context of the commerce globalisation and the need to assimilate legal instruments that are often used in the international trade, determined the global and European lawmakers to seek a proper harmonised regulation for the agency contract. Romania produced a first regulation of agency through Law 509/2002 regarding the permanent commercial agents and, thereafter,continued the process through the incorporation of the subject in the Civil Code. This paper examines the conformity of the European and Romanian regulations regarding the agency with the initial concept that, purportedly, inspired the afore said lawmakers.

ON THE QUESTION OF THE STRUCTURE OF INHERITANCE LAW

In the present article, the author considers various doctrinal judgments on the question of what constitutes inheritance law and what place it occupies in the legal system. The purpose of the research is to determine the structural divisions of the sub-branch of inheritance law and substantiate the view on the recognition of inheritance law as a sub-branch of civil law with the designation of its inherent institutions and subinstitutions. Results. Based on the results of the study, the author came to the conclusion that inheritance law, taking into account the content of the legal norms forming it, can only be recognized as a sub-branch of civil law. There are no sufficient grounds to consider inheritance law as an institution of civil law or as an independent legal branch as a structural unit of the legal system. Due to the subject of legal regulation, inheritance law is separated from other sub-sectors in the civil law system. Taking into account the specifics of the subject and method of legal regulation, the sub-branch "inheritance law" is subject to further differentiation into its constituent institutions and sub-institutes. It is concluded that it is necessary to distinguish five main institutions within the studied sub-sector, the central place among which belongs to the institute of inheritance law. The legal norms of this institution are currently dispersed in separate chapters of section V of the Civil Code of the Russian Federation and cover the specifics of regulating both hereditary and some related legal relations. It is this diversity to be included in the Institute of law of inheritance relations allows to conclude on the need for it subinstitute three: hereditary sub instructions, sub succession and sub the exercise of the right of inheritance.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 28 Japan: Japanese Perspectives on the Hague Principles

This chapter discusses Japanese perspectives on the Hague Principles. Japan belongs to the civil law system, although some legal institutions grounded in common law also exist. At the end of the nineteenth century, Japan transplanted Western legal systems. Along with the codification of the Civil Code and other statutes, the Private International Law Act, Hôrei, was adopted in 1898, which was modernized and substituted by the Japanese Act on General Rules for Application of Laws (AGRAL) in 2006. The AGRAL designates, out of several conflicting laws, the law which has the closest connection with the legal relationship concerned. This value-neutral, multilateral method consists in localizing the legal relationship in a certain jurisdiction, grounded on the equality and interchangeability of domestic law and foreign law. While the judge does not have the authority to directly apply the Hague Principles instead of the AGRAL in litigation, the judge can certainly refer to the Hague Principles in seeking guidance for interpretation or filling gaps of the AGRAL, same as for other international, regional, or domestic conflicts rules, including the relevant Hague Conventions.

Penerapan Omnibus Law dalam Undang Undang No. 11 Tahun 2020 tentang Cipta Kerja

Pada Juli 2020, World Bank mengubah indikator pengukuran katagori pendapatan negara dan mengklasifikasikannya ke dalam 4 kelompok negara yaitu, pendapatan rendah (low income), pendapatan rendah menengah (lower-middle income), pendapatan menengah keatas (upper-middle income), dan pendapatan tinggi (high-income). Dari perubahan indikator tersebut menempatkan Indonesia pada katagori upper-middle income dari yang sebelumnya lower-middle income. Peningkatan pendapatan Indonesia terus diupayakan dan didorong oleh pemerintah melalu regulasi-regulasi yang mendukung salah satunya dengan membentuk Undang-Undang No. 11 Tahun 2020 tentang Cipta Kerja atau UU Cipta Kerja. Pembentukan UU Cipta Kerja merupakan yang pertama kali di Indonesia dengan metode Omnibus Law sehingga membawa dampak bagi peraturan perundang-undangan lain yang terkait. Pada prinsipnya penerapan Omnibus Law sudah banyak diterapkan di negara-negara dengan common law system sedangkan untuk penerapannya di Indonesia memiliki beberapa permasalahan mengenai pembentukan perundang-undangannya karena menganut civil law system.

Elaboration, Collaboration, And Contribution Of Traditional Law In Indonesian National Legal System

Indonesia uses customary Law as positive Law in the archipelago, is obeyed and implemented as a custom, from generation to generation respected by the community as a national tradition. As a rule of Law, Indonesia adheres to many legal systems at the same time that lives and develops in society, namely the civil law system and the customary law system. All these legal systems are complementary, harmonious, and romantic. As the original Law that grows and develops from community habits, Customary Law affects the process of law enforcement in Indonesia. The values ​​contained in customary Law in Indonesia were used in the formation of jurisprudence in the Supreme Court. This paper will explain how customary Law, which has an "unwritten" character, can fill the Indonesian civil law system's legal gap. This paper's research method is a normative legal research method and uses several approaches, namely the statutory approach, the comparative approach, and the historical approach. This paper concludes that legal pluralism in Indonesia can be a solution to the legal gap created by the rigidity of civil law application.