Transformation of the Judiciary in Turkmenistan after 1991. Aspects of Development of Administrative Judiciary

The article examines the process of formation of the Turkmen judicial system after Turkmenistan declared independence in 1991. The stages of reforming and transformation of the judicial system in the Republic of Turkmenistan in different periods are studied: 1990–2000, 2001–2020. In addition, the structure of the judicial system of Turkmenistan, the system of courts of general jurisdiction (regional courts and local courts), the system of arbitration courts, judicial boards of the Supreme Court of the Republic of Turkmenistan (in civil cases, arbitration cases, administrative cases, criminal cases) is analyzed, and the judicial selfgovernment bodies of the Republic of Turkmenistan are also investigated: the National Conference of Judges, the Qualification Board of Judges, the Council of People’s Assessors at district courts. In addition, the norms of the Civil Procedure Code of the Republic of Turkmenistan, the Arbitration Procedure Code of the Republic of Turkmenistan and the Code of the Republic of Turkmenistan on Administrative Procedures on issues arising from administrative and public legal relations are analyzed. The article draws attention to the lack of functioning of the constitutional judicial system and the Constitutional Court in the Republic of Turkmenistan, as well as the need to establish constitutional control over normative acts of the legislative and executive branches of the republic in the country. It is proposed to establish administrative courts in Turkmenistan in all regional centres of the country and the capital of the republic, as well as to adopt the Code of Administrative Procedure of Turkmenistan in the country. The article draws attention to the fact that the creation or liquidation of arbitration, regional or local courts would be carried out not only on the basis of a Presidential Decree, but also on the basis of a proposal of the Supreme Court of the Republic of Turkmenistan with the consent of the Parliament of the Republic of Turkmenistan.

THE PROMULGATION OF LAW IN QIN AND WESTERN HAN CHINA

This article studies the promulgation of law in Qin and Western Han China (221 b.c.e.–9 c.e.) based primarily on excavated legal and administrative texts. It shows that a new law was handed down from the emperor to the relevant offices on the day of enactment. The article argues that, to an extent, the subject matter and function of a law determined for whom it was passed and promulgated. Depending upon the location, rank, and official duties of the offices, the laws known and used could be quite different. Although it was required that documents of imperial decisions be forwarded swiftly and safely by courier at the prescribed speed, delays in forwarding such documents to distant local offices were probably common in Qin and Western Han China. Evidence indicates that district- and prefecture-level officials publicized laws that needed to be made known by the common people, by reading them aloud in local gatherings, for example, or posting them in conspicuous places. The article further argues that a law came into effect in offices on the day it arrived at local courts or on the day it was enacted in the central court, depending on the existence of related extant laws. It concludes that a new law in Qin and Western Han China was ex post facto, as it reached backwards to a past action and retroactively attached liabilities to the action at the point when it was performed.

Institute of the judicial supervision and the provision of methodological assistance to judges in Ukraine

The paper is devoted to analysis of the current concerns of the judicial supervision and significance of the provision of methodological assistance to judges considering the historical experience. It is indicated that provision of the methodological assistance to judges is particularly important under current conditions as it ensures administration of fair and impartial justice. Every person’s right to fair trial based on supremacy of the law is achieved via accomplishing certain powers both procedural nature and out-of-court procedures. Procedural powers of the court are realized during consideration of a case by the corresponding judicial jurisdiction while the out-of-court powers are accomplished when ensuring so-called functions which main objective is to provide for the unified judicial practice. Formation of the unified judicial practice can be achieved provided a similar application of all norms of the law of substance and procedural law only because the law should equally apply to everybody under similar circumstances. The paper states that delegation of powers to the court of appeal, as regards provision of the methodological assistance to local courts in administration of legislation, preconditions certain activity of the court and its chairman aimed at accomplishing this authority and presence of the levers to respond to problems arising in the judicial practice. Practical exercise of powers by the court of appeal, as regards provision of the methodological assistance to local courts, may not be connected with the institute of supervision only because there exist other kinds of such assistance provision. It is emphasized in the paper that the terms “supervisor” and “supervision” may not refer to the activity of courts and judges as regards the meaning, and do not meet the constitutional principle of the independence of judges. The authors indicate that filing a disciplinary complaint against judges in connection with the results of the methodological assistance which the supervising judges provide contains signs of the supervision powers and external influence that doesn’t meet the requirements of the effective legislation of Ukraine concerning judicial machinery and status of judges. The conclusions state a necessity of the legislative regulation of the methodological assistance which the higher judicial courts provide to the lower level courts to improve quality of court judgments and court activity in this sphere. Keywords: methodological assistance, court supervision, powers of judges, forms of the methodological assistance.

WATANIC JURISPRUDENCE: ARTICULATING THE LEGITIMATE ELEMENTS OF THE BASIC STRUCTURE OF THE FEDERAL CONSTITUTION

The doctrine of the basic structure of a constitution would be undisputable if those elements thereunder are clear and representing the facts of our local history, nationhood, and the principle of the rule of law. Former Chief Justice Tun Abdul Hamid Mohamad argued that the doctrine of the basic structure of a constitution introduced by the Indian Supreme Court contradicts Article 159 of the Federal Constitution and beyond the competent jurisdiction of the local courts. Hence, this article puts forward the conceptual framework of the basic structure adopted by the Federal Court in the case of Indira Gandhi to articulate those elements summed therein viewed from the watanic jurisprudence. The watanic jurisprudence analyses legal documents and sources of sovereignty based upon two philosophical worldviews; continuum and dichotomous frameworks relying upon the local legal history context and the present legal provisions of a country. Depending on a broad and purposive manner in proper linguistic, philosophic, and historical contexts of the Malaysian legal historical documents, the legitimate elements of the basic structure are the principle of sovereignty as embedded in the oath of office of the Yang di-Pertuan Agong together with the matters aggregated in Article 38(4), Article 159(5) and Article 161E. The oath of the Yang di-Pertuan Agong thus legitimizes Syariah compliance as the rule of law. The Federal Constitution of Malaysia also expressly protects its basic structure with strict conditional amendments. In conclusion, the basic structure of our Federal Constitution must be viewed from our local circumstances in compliance with the principle of constitutional supremacy and the rule of law.

LITERARY WORK OF THE UKRAINIAN GALICIAN LAWYERS AT THE END OF THE XIX – BEGINNING OF THE XX CENTURY

Summary. The purpose of the article is to analyse literary heritage of the Ukrainian lawyers who dealt with literature, to present an overview of its sense and essence with their professional work as a background. The paper aims at disclosing different genres of their literary activity, as well as their creative authenticity. The paper sheds light on the personalities whose literary works were long forgotten due to the Soviet propaganda of the former era. The methodology of the research relies on the historic and objective principles. It includes the historical, historical-comparative, biographical, behavioural, and contrastive methods. The scientific novelty of the paper is revealed by the need to determine and systemize the role and place of the lawyers-writers in the cultural life of Galicia at the turn of two centuries, to understand peculiarities of their professional and creative work and to comprehend their perception of national ideas with their further embodiment in literature. Conclusions. The turn of the XIX–XX centuries introduced a new socio-professional stratum to the public arena of Western lands which were under the Austro-Hungarian Empire rule, and this stratum consisted of the Ukrainian lawyers. Not only its representatives, particularly lawyers, acted as legal defenders of national and civil rights of their compatriots in the local courts, they also took leading positions in the Ukrainian political and public life of Eastern Galicia, and fought for the rights of Ukrainians in both the Austrian Parliament and the Diet of Galicia and Lodomeria. Besides their professional, political and social activity, a significant part of Galician lawyers (as all representatives of the legal professions were called back then) became famous because of their cultural and creative activities which were not a part of their working routine but part-time activities or hobbies. A lot of them took to creative writing as a means of expressing their ideas, and they works appeared in various genres of literature: scientific, journalistic, fiction (poetics, prose, etc.), representing their worldview and beliefs. The list of the well-known literary figures of that time includes such people as an ethnographer and folklorist M. Buchynsky, writers L. Martovych, I. Semanyuk, A. Tchaikovsky, poets M. Kichura and M. Kozoris, a publicist and one of the first Ukrainian futurists A. Kos, literary critics and editors V. Levitsky and M. Mochulsky and others. In fact, literary work was a complementary component of their way of life, a way of self-expression, as their main activity was legal work. Their literary work was an important component of life, a way of self-expression, which complemented their main legal work in a way. Their literary works depicted bitter reality of that time and hard life of fellow stateless people. Yet, they also served to show the best features of Ukrainians in literature.

The Villainies of a Facetious Jurist

The Breton nobleman Noël Du Fail (c.1520–91) had an eventful career during which he distinguished himself in law and literature. This chapter focuses primarily on his three literary works written in a villainous style that is overtly facetious. His early writings parody rural community conflicts: peasant disputes which resemble vilains cas but which are not resolved through the local courts. Du Fail’s later contes reflect a somewhat pessimistic outlook on the direction in which his legal profession—and France’s social orders more generally—were headed. Du Fail’s fictious world, like Nenna’s (cf. Chapter 2), is one in which noble and vile merge together, but the dialogues and exchanges are altogether coarser than those of Nenna’s interlocutors.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 59 Costa Rica: Costa Rican Perspectives on the Hague Principles

This chapter assesses Costa Rican perspectives on the Hague Principles. Costa Rica does not have a systematic and codified system that regulates conflicts of law, usually known in Costa Rica as private international law (PIL). Instead, the main sources of PIL in Costa Rica are: (i) international treaties; (ii) the Civil Code, the Code of Civil Procedures, and other domestic laws; and (iii) the Law on International Commercial Arbitration. In general, Costa Rica’s private international law regime, applicable to international commercial contracts, allows for parties to select the law of their choice as long as it does not breach public policy or harm a third party’s interest. According to Article 5 of the Organizational Law of the Judiciary, courts cannot excuse themselves from exercising their authority or from ruling in matters of their competence for lack of a rule to apply and they must do so in accordance with the written and unwritten rules. Unwritten rules refer to the general principles of law, usages and practices, and case law, according to the hierarchical order of their legal sources. Such rules serve to interpret, integrate, and delimit the field of application of law. Therefore, the local courts have limited themselves to only apply domestic law and have consequently restrained themselves from applying the Hague Principles or other soft law instruments as a persuasive authority source.

Dispute on the Contract of Transferring Land-Use Rights: An Analysis of the Vietnamese Precedent No. 04/2016/AL

Among many precedents involving the land issue, the precedent No. 04/2016/AL regulates the dispute on the contract for transferring land-use rights. Passed by The Council of Judges of The Supreme People's Court on April 6, 2016, house ownership and land-use rights are marital properties, but only the husband or the wife signs the contract on selling the house and transferring the land-use rights to another, and the transferor received the full payment from the transferee as agreed. The husband or the wife did not sign the contract. If there is sufficient evidence supporting that: (i) this person knows the transfer and jointly uses the money paid from transferring the landuse rights; and (ii) this person knows that the transferee received, managed and used this house and land publicly without having any objections. In this case, it is necessary to determine that person agreed upon with the transfer of land-use rights. Despite its significance and role in the dynamics of the Vietnamese law, little research has been conducted into the extent to which the precedent has a considerable impact on the application of local courts. Furthermore, the understanding and analysis of precedents have not been fully explored. The article aims to analyze the controversial points that focus on an unwritten consent in the aforementioned transaction. This paper examines the legal and practical values of precedent – as a guideline – in three striking aspects: (i) applying precedent to settle cases containing similar issues; (ii) filling a gap in a transaction with the third party of the marital property but only the spouse signed the contract; and (iii) extending the scope of the jointly marital ownership to include the range of common property of households' members. The exploration of this precedent, thus, contributes to the understanding of the contemporary socialist law and the comprehensively legal framework for the precedent system in Vietnam.

Trakai Castle Court Acts of 1660–1661: Typological and Language Characteristics

The paper deals with the local court records of the Grand Duchy of Lithuania (GDL) from the collection of Vilnius University. The study of Trakai Castle Court documentation of 1660‒1661 (F7–TPT, 1660‒1661) allows us to conclude that the chancery work in local courts in the GDL was highly developed at the time. The system of documents’ drawing up and registering was clearly regulated and structured, taking into account the needs of state and public life. Almost all types of court records were composed according to well-defined canons, owing to which we can speak about certain genres of legal documentation that had developed apparently by the end of the 16th and the middle of the 17th centuries. The manuscript written in Polish and Ruthenian languages is important for research of Lithuanian, Polish and Byelorussian history. The abundance of accumulated information enables us to consider it as unique reference book that reflects changing sociolinguistic situation of the GDL. From the middle of the 17th century, Polish starts to significantly dominate in legal documentation, thus forces Ruthenian out of court by the end of the century.

Coercion in the Cradle

Important recent research highlights the role of forced labor in the expansion of neoliberal capitalism in the global South. In this article I make the case that coerced labor was central to the first industrial revolution, the classical case of Great Britain. I demonstrate that in an area known as the Black Country for its coal, steel, and related industries, master and servant laws allowed criminal prosecution of workers deemed problematic, to insure labor control in the workplace. Employers relied on these laws when they were unable to use machinery to embed control in the labor process, and when they had recourse to reliable local courts (or petty sessions), in which many were magistrates, so they could rely on convictions under summary jurisdictions for fines, damage payment, and incarceration. I conclude by suggesting that this particular historical case can reorient our perspective on labor coercion and the law across the long arc of modern capitalism.