NECESSARY (COMPULSORY) EVIDENCES IN CIVIL PROCEDURE

In this article, the author examines the concept and procedural and legal significance of necessary (mandatory) forensic evidence. It analyzes the formulated by M.K. Treushnikov, who was the first in the procedural doctrine who paid attention to the legal obligation to use certain means of proof when establishing certain legal facts, the positive rule of admissibility of evidence, the positions of other authors on the issue of necessary evidence in civil proceedings. The rule of necessary (obligatory) evidence is considered as a special rule of judicial proof. At the end of the study it is concluded that the allocation of necessary evidence is carried out from the same content of factual data, reflecting the same fact, based on the peculiarities of their procedural form. Necessary evidence in its form is a specific type of a written document or expert opinion. Thus, the rule of proving the circumstances of the case with the use of necessary evidence concerns the form of evidence, beyond its content. The thesis is also put forward that necessary evidence, due to the specifics of the procedure for its formation, the presence of requirements established by law to its form and content, has a significant evidentiary value.

IN SEARCH OF THE OPTIMAL MODEL OF CRIMINAL ANLEGAL COUNTERACTION TO ILLEGAL GAMING BUSINESS IN UKRAINE

The article discusses the problems of improving criminal liability for illegal activities in the organization or conduct of gambling, lotteries. The doctrinal positions on this issue, as well as the corresponding foreign experience, are analyzed. It is concluded that: 1) The Criminal Code of Ukraine should be supplemented by a general rule that will provide for criminal liability for all the most socially dangerous manifestations of violations of the established procedure for engaging in economic activities. Theoretically, such a projected prohibition could cover, among other things, unlicensed or other illegal activities related to the organization and conduct of gambling or lotteries, which, accordingly, would eliminate the need for the existence of a corresponding special rule; 2) however, the question of the inexpediency of the existence of a special criminal law norm dedicated to gambling and lotteries can be put on the agenda only when, based on the results of the corresponding painstaking expert developments, the following is formed: – firstly, a well-grounded and, which is no less important, a more or less stable circle of sublicensed types of economic activity, violation of the order of occupation of which should result in criminal liability; – secondly, an improved version of the corresponding general rule, the instructions of which should be correlated with the provisions of the regulatory legislation and within which there will be no room for those controversial aspects that were characteristic of the previously existing Articles 202 and 203 of the Criminal Code of Ukraine; 3) therefore, today the optimal way of criminal-legal counteraction to illegal activities in the organization or conduct of gambling or lotteries is the presence of an appropriate special norm (Article 203–2 of the Criminal Code of Ukraine).

ASPEK PIDANA DARI MENAHAN IJAZAH PEKERJA SEBAGAI JAMINAN DALAM PERJANJIAN KERJA

The research conducted by this author is a research that uses normative juridical research methods. Although manpower does not specifically regulate whether or not companies can withhold a worker's diploma, in reality the world of work requires a company to withhold a diploma from a worker as a guarantee from the worker in the employment agreement. With no regulation that provides for or prohibits this, it creates a norm vacuum in labor law, which has implications for allowing the actions of employers to withhold workers' certificates. For this reason, based on human rights, this action is said to be an act that is against the law, because there are human rights of workers that are violated by the company. As a result, it can be canceled from the work agreement because there is an element of coercion even though it is not directly due to the trading position owned by the company. The impact of criminal law from withholding a worker's diploma is that a company can be suspected of embezzlement in office, as a result of its actions that withholding a diploma fulfill the elements in Article 374 of the Criminal Code. It is important to make a special rule that provides provisions on whether or not a company can withhold a worker's diploma which should be regulated in a law that has direct contact with workers and employers/employers, namely the labor law.Keywords: diploma; employment agreement; criminalAbstrakPenelitian yang dilakukan penulis ini adalah penelitian yang menggunakan metode penelitian yuridis normatif. Meskipun ketenagakerjaan tidak mengatur secara khusus tentang memperbolehkan atau tidak memperbolehkan perusahaan menahan ijazah pekerja, tetapi dalam realita dunia kerja perusahaan akan mensyaratkan untuk menahan ijazah dari pekerja sebagai jaminan dari pekerja dalam perjanjian kerja. Dengan tidak ada pengaturan yang memberikan atau melarang hal tersebut menimbulkan kekosongan norma dalam hukum ketenagakerjaan, yang berimplikasi pada pembiaran terhadap tindakan dari pengusaha yang menahan ijazah pekerja. Untuk itu dengan berlandaskan pada hak asasi manusia, tindakan tersebut dikatakan sebagai sebuah tindakan yang melawan hukum, karena ada hak asasi manusia dari pekerja yang dilanggar oleh perusahaan. Akibatnya dapat dilakukan pembatalan dari perjanjian kerja karena ada unsur paksaan meskipun tidak langsung akibat barganinng position yang dimiliki oleh perusahaan. Dampak hukum pidana dari menahan ijazah pekerja adalah perusahaan dapat diduga melakukan penggelapan dalam jabatan, akibat perbuatannya yang menahan ijazah memenuhi unsur dalam Pasal 374 KUHP. Pentingnya untuk dibuat sebuah aturan khusus yang memberikan ketentuan tentang dapat atau tidak dapat perusahaan menahan ijazah pekarja yang sebaiknya diatur dalam undang-undang yang bersentuhan langsung dengan pekerja dan pengusaha/pemberi kerja yaitu undang-undang ketenagakerjaan.

Free Logics are Cut-Free

The paper presents a uniform proof-theoretic treatment of several kinds of free logic, including the logics of existence and definedness applied in constructive mathematics and computer science, and called here quasi-free logics. All free and quasi-free logics considered are formalised in the framework of sequent calculus, the latter for the first time. It is shown that in all cases remarkable simplifications of the starting systems are possible due to the special rule dealing with identity and existence predicate. Cut elimination is proved in a constructive way for sequent calculi adequate for all logics under consideration.

Application of criminal law for illegal influence on the results of official sports competitions in the era of legalization of games

The scientific article examines the issue of legal correctness of criminal law and certain rules of law, which regulates the prohibition of illegal influence on the results of official sports competitions, as well as a number of risks that may arise in connection with the legalization of gambling, including bookmaking (sports betting) as a derivative of gambling. Criminal law is constantly updated to meet the requirements of the time. The same applies to the ban on sports betting, which contains a number of features. This study analyzes the specific risks created by the legislator during the implementation of the relevant norm. Examining criminal liability for manipulating the results of official competitions and formulating proposals to improve the criminal law on this topic, it is clear that the legalization of gambling, and espe-cially bookmaking, may be a question of criminal liability for participation in sports betting. It turns out that for the existence of criminal law there is no special rule that regulates the prohibition of gambling, including bookmaking. Article 369-3 of the Criminal Code of Ukraine can be prosecuted only on the grounds of influencing the results of official sports competitions and receiving benefits as a result of such acts; violation of the ban on sports betting. With the legalization of bookmaking, betting on sports will become even easier as well as avoiding further criminal liability. The legalization of any recently banned activity is used to expand the budget replenishment, because the gambling business, like any other, must pay taxes, but it is reasonable to think that expanding the budget is not to encourage gambling, and industry development and agriculture, stimulating the economy, etc.

Implementation of Musyarakah Financing Agreement On Sharia Banking (Case Study at Bank BRI Syariah Purwokerto Branch Office)

Act of Republik Indonesia Number 21 of 2008 concerning Sharia (Islamic) Banking Article 1 Number 13, require all of contract should be written. Thus the implementation of musyarakah financing contract on Islamic banking is needed a notary to make a notariil deed, although there is no a special rule that require a contract must be made with notariil deed. The research is empirical research law to analyzes the data systematically, factual and accurate. The approach used in the research is descriptive qualitative approach. Result of this research indicates that implementation of musyarakah financing contract at PT. BRI Sharia branch of Purwokerto, normatively has been following the elements of the contract, and especially used standard contract from Financial Services Authority (FSA) regulation Number 31/POJK.5/2014 concerning Implementation of Sharia Multi-Finance Business, but substantially there are deviations in which the position of the parties is unbalanced, the nisbah ratio is done unilaterally and is fixed during the funding period, calculation of nisbah is determined at the beginning, and the use of witnesses in contract is not in accordance with sharia principles.Keywords: Contract, Musyarakah Finance, Sharia (Islamic) Banking.

Does the African Growth and Opportunity Act (AGOA) impact EU-15 imports from Africa?

PurposeAt the heart of the African Growth and Opportunity Act (AGOA) are substantial trade preferences, which coupled with the Generalised System of Preferences (GSP) grant a wide range of goods produced in qualified African countries duty-free access to the USA. To be AGOA-eligible, countries are assessed annually on their progress in undertaking appropriate economic, institutional and human rights reforms. This paper seeks to cover new grounds by exploring whether exports of apparel to US crowds out EU-15's imports from Africa.Design/methodology/approachThis paper employs the gravity model to gauge trade displacement effects from the EU to the US due to AGOA, and whether the more relaxed special waiver embodied in AGOA's apparel provision causes non-knitted exports to EU-15 to be crowded out. The basic gravity model, which posits that trade between two countries is positively influenced by the economic size and negatively affected by the distance between them, is augmented with other trade inhibiting and trade facilitating variables.FindingsThe gravity model provides no evidence of trade displacement but, instead, provides support for the hypothesis of complementarity of African exports to the two key markets. A strong positive impact of the bilateral trade between the US and Africa on the EU–African trade is evident mainly before the phasing out of the Agreement on Textiles and Clothing (ATC). This paper finds that Special Rule beneficiaries' exports to the two markets still complement each other, but for every percentage increase in exports to the USA, there is a less than proportionate increase in exports to EU-15 indicating a higher utilisation of the special waiver. This paper also provides evidence for complementary apparel exports to both LDCs (least developing countries) and non-LDCs, with stronger effects on non-LDCs and the non-knitted sector.Research limitations/implicationsFuture work could consider the longer lifespan of AGOA following its latest renewal in 2015. This would allow one to also capture the ongoing changes in EU trade arrangements in particular implementation of Economic Partnership Agreements (EPAs). This new agreement comes with more flexible rules of origin requiring single transformation step instead of the double step. As most African nations are still in the process of adopting EPAs, new research can shed more light on complementary or displacement effects once these agreements are adopted.Originality/valueSince the main intent of AGOA is to enhance Africa's integration into the global economy by encouraging trade and investment, generate employment and increase productivity and per capita income growth, its impact on Special Rule beneficiaries' exports to the US has been extensively examined. However, the indirect effects of this trade agreement on African exports to other key markets providing similar preferences such as the EU has not been fully explored. This study also covers new grounds by examining whether there has been any apparel trade displacement from the EU to the US, as a result of the Act, over 2001–2016 period right from AGOA's inception.

LEX SPECIALIS AND LEX POSTERIOR IN THE DIGEST

Introduction. The article is devoted to the significance of the Digest for identifying the origin and development of the legal maxims for resolving conflicts of norms such as lex specialis and lex posterior. The purpose of the article is to study lex specialis and lex posterior in Roman law on the example of the Digest. Methodology. The author resorts to various methods of inquiry into legal reality. In particular, the following methods are used: systemic approach, conceptual analysis, legal-dogmatic method, comparative legal method, historical approach. Results. Appeal to the priority of the new law over the old and special rules over the general should be evaluated as methods of judicial argument in favor of a resolving of a specific case, but not universal legal maxims that have survived unchanged to this day. An appeal to the Digest shows that the priority of lex posterior is derived primarily from a Greek fragment written by Modestinus (D. 1.4.4), which can be interpreted as a general rule, while the principle of lex specialis is manifested differently. The lex specialis maxim is found inductively from the written in Latin and scattered in various books and titles of the Digest descriptions of cases by Ulpianus (D. 1.5.24; D. 47.12.3.5) and Papinianus (D. 48.19.41; D. 50.17.80). Moreover, in the Digests, lex posterior is considered in isolation from lex specialis, which can be explained by their autonomous genesis from each other, as well as the dissimilarity of ideas that underlie the priority of the special rule over the general and new norm over the old. Therefore, in the Digests, there is no resolving a multiply conflict between the later general and previous special legal rules. Conclusion. It is not correct to spread the modern general principles of overcoming conflicts of law as legal universals, such as lex superior, lex specialis, lex posterior over the Roman jurisprudence. The primacy of a special rule over a general and later adopted law over a previously adopted one should be evaluated in the context of the development of Roman law and Roman jurisprudence but not fro the modern content of such general legal maxims.

SPECIFIC ANTI RULE AVOIDANCE (SAAR): HOW DOES IT AFFECT TAX AVOIDANCE?

This study aims to empirically prove the influence of the Specific Anti Avoidance Rule (SAAR), namely transfer pricing, thin capitalization, controlled foreign corporations (CFCs), the use of tax heaven countries, and treaty shopping on tax avoidance. SAAR is a special rule to minimize tax avoidanceThe sample in this study is multinational companies listed on the Indonesia Stock Exchange in the 2015-2017 period. The method used is multiple linear regression with SPSS version 24. The results show that transfer pricing, thin capitalization, controlled foreign corporations (CFCs), utilization of tax heaven countries, and treaty shopping have no effect on tax avoidance. The absence of influence of the five independent variables on tax avoidance is due to the sample company data and also the proxy used. The results of the study are expected to contribute especially to the government regarding whether SAAR is sufficient to minimize and overcome tax avoidance and can also be a consideration for the government to implement the General Anti Avoidance Rule (GAAR) to cover the weaknesses of SAAR.

The Material Constitution

This chapter explores the way in which several authors understood the relationship between the material constitution and constituent power, and how that understanding affected their views about the legal limits of the ordinary power of constitutional reform. Part I begins with a brief examination of the historical development of the distinction between the amending and the constituent power. Part II examines the place of the concept of super-legality in Hauriou’s work. For this author, constitutional super-legality includes not only the content of a written constitution protected by a special rule of change, but also the fundamental principles that stand above the constitution itself. Part III introduces Kelsen’s conception of the material constitution which, unlike Hauriou’s, is entirely consistent with the notion of an unlimited amendment power, one which cannot ultimately be bound by eternity clauses and much less by implicit principles. In Part IV, this ‘descriptive’ approach will be contrasted with that of Schmitt. Somewhat counter-intuitively, under Schmitt’s approach, the frequent appeal to an unlimited and unmediated constituent subject leads to the attribution of limited competences to the amending authority. Part V shows how Heller’s conception of the material constitution, although at first sight appearing as a successful synthesis of Kelsen and Schmitt, provides no clear basis for justifying the protection of the material constitution through the legal appeal to an extra-legal constituent authority. Finally, the chapter examines Mortati’s views about the material constitution’s potential role in justifying the imposition of legally enforceable limits on the amending authority.