Codification Of Civil Law Research Articles

Genesis of legal regulation of relations according to the contract of carriage in codification acts of civil law on the territory of Ukraine

The article investigates the development of legal regulation of relations in the contract of carriage in the acts of the codification of civil law in the Ukrainian lands. It analyzed the situation of such codification acts are highlighted in historical periods of legal regulation of relations in the contract of carriage. English abstract The article investigates the development of legal regulation of relations according to the contract of carriage in codification acts of civil law on the territory of Ukraine. It analyzes the provisions of codified acts, the historical periods of legal regulation of relations under the contract of carriage are distinguished in particular the period of formation, development, transformation and up-to-date period. The period of formation in legal regulation of relations under the contract of carriage ( the XIth century – the end of the XIIIth century) is characterized by the absence of legal regulation of contractual relations of transportation in the codification acts of civil law on the Ukrainian territories. The period of the development in the legal regulation of relations under the contract of carriage (the end of the XIIIth century – the beginning of XXth century.) during which some codification acts of civil law on the Ukrainian territory state that the relations of carriage are the subject to legal regulation, but the agreement of carriage is not considered as an individual form of civil and legal obligations. The period of transformation in the legal regulation of relations under the contract of carriage (the beginning of the XXth century - the end of the XXth century) is characterized by numerous changes in the legal regulation of relations under the contract of carriage. In the Civil Code of the Russian Empire in 1905 the first contract of carriage traffic is allocated as an independent form of commitment. The contract of carriage is not mentioned in the Civil Code of the Ukrainian SSR in 1922. With the adoption of the Civil Code of the Ukrainian Soviet Socialist Republic in 1963 the contract of carriage is recognized as a separate civil contract. The modern period of legal regulation of relations under the contract of carriage (1991 - 2016) is characterized by the transition to private law principles regulating relations in the field of transportation which is reflected in the rules of the Civil Code of Ukraine, transport codes and statutes.

The Principle of Liability in Private Antitrust Enforcement in Selected European States in Light of the Implementation of the Damages Directive into the Polish Legal System

In the vast majority of European countries, private antitrust enforcement falls under general rules of civil law. One of the issues to be discussed in relation to this type of litigation is the principle of liability, which exists in the given legal system, and its presumed impact on private enforcement. This problem has been debated in the course of the implementation works on the Damages Directive into the Polish legal system. A discussion on the principle of liability has taken place at least twice in this context. First, the issue was considered by the Civil Law Codification Commission and expressed in its Assumptions behind the Draft Act on complaints for damages caused by the breach of competition law. Subsequently, the principle of liability was assessed again at the reconciliation conference held at the Ministry of Justice. This is but a part of a broader discussion about the relationship between the rule of liability existing in national laws being applied to private enforcement cases and EU law as well as limitations arising from the latter. After outlining this interplay, the paper will briefly introduce solutions adopted with respect to the principle of liability in the context of private enforcement in selected European countries. The selection is not random, despite the fact that a limited number of countries has been analysed – eight including Poland. These include the most advanced EU Member States when it comes to private antitrust enforcement (such as the UK, Germany or the Netherlands), along with less developed examples (such as Italy or France), and even underdeveloped countries when it comes to the number and popularity of private antitrust litigations (such as Lithuania and Poland). This sort of analysis paints a relatively comprehensive picture of the adopted solutions in relation to the principles of liability governing private enforcement cases in Europe. The same is true for the issue of the burden of proof and presumptions/binding power in civil proceedings of decisions issued by competition authorities. Furthermore, what seemed to be crucial for the drafters of the Damages Directive, this sort of analysis makes it possible to formulate certain conclusions with respect to the relationship between the effectiveness of private enforcement in a given State and the adopted principle of liability. The final conclusions understandably focus on the Polish example, that is, the implementation of the Damages Directive into the Polish legal system.

FORCE MAJEURE (OVERMACHT) DALAM HUKUM KONTRAK (PERJANJIAN) INDONESIA

<p><strong><em>Abstract</em></strong></p><em>Private law in civil law system is generally contains two major sections: contract law and commercial law. In contract law, parties imposed upon themselves certain obligations. Notwithstanding that, parties may at some point lose their ability to meet their obligations due to </em><em>overmacht/force majeure. This article examine the legal status force majeure in Indonesia contract law. Force Majeure is intended to protect one party from damage arising from non- performance. The existence of which require the fulfillment of one or two conditions, subjective and objective. The Force Majeure clause is regulated in the Civil Law Code and encompasses situations such as fire, flood, earthquake, strom, typhoon (or other natural disaster), loss of electricity, catalisator damage, sabotage, war, invasion, civil war, rebellion, revolution, military coup, terrorist activities, blockade, embargo, labour dispute, strike, and goverment sanctions. </em>

A Historiographical Approach to the Qur’an and Shari’a in Late 19th Century India: the Case of Chiragh ‘Ali

Analysing the book The Proposed Political, Legal, and Social Reforms in the Ottoman Empire and Other Mohammadan States (1883) and undertaking a historical contextualization, this paper problematizes the epistemis and epistemological framework underlying the articulation of Chiragh ‘Ali’s discourse, focusing on how he viewed the Qur’an and Shari’a according to the intellectual debates in the 19th century. Often refuting, in his writings, missionary and Orientalist criticisms of Islam as being hostile to reason and incapable of reform, Chiragh ‘Ali rather argued that the Islamic legal system and schools were human institutions capable of modification. While defending that the Qur’an taught religious doctrine and rules for morality, Chiragh ‘Ali held the opinion that it did not support a detailed code of immutable civil law or dictate a specific political system, drawing on an examination of the traditional sources of the Islamic law and methods to overcome the rigidity of traditional theologians.

The Code Civil Between Enlightenment and Restoration. The Heritage of Portalis

The French Code civil, including the tradition of legal practice and scholarship it stands for, is the child of two parents: Enlightenment and Restoration. They came together in the person of Jean Etienne Marie Portalis (1746-1807), who was the main drafter of the code under Napoleon. I want to investigate which line of philosophical argument he followed in uniting the two and critically assess the value of this argumentation. In section 1 I briefly sketch the codification of civil law in the (post-)revolutionary setting of the time, as well as Portalis’ philosophical background. Section 2 turns to the principled and wide-ranging discourse he delivered at the occasion of the formal presentation of the draft civil code to the legislature. This discourse, in turn, found its deeper roots in an extensive treatise that he wrote prior to the former, on the use and abuse of reason in times of Enlightenment (Section 3). I will focus, in particular, on the twin concepts of knowledge (section 4) and nature (section 5) in this treatise. From this vantage point, section 6 analyzes the eclectic way in which Portalis uses his philosophical godfathers Montesquieu and Rousseau, while section 7 shows why his preoccupation with the protection of established property rights can explain such eclecticism. Section 8 takes stock and submits that at least one of Portalis’ arguments presents a real challenge to Enlightenment philosophy up until the present day.

Institutional influences on board composition of international joint venture firms listing on emerging stock exchanges: Evidence from Africa

The attraction of blue-chip listings in emerging stock markets is a major policy initiative common across much of the developing world. In many cases however, local blue-chip firms are the result of foreign Multinational Enterprise (MNE) firms engaging with local indigenous partners to form an international joint venture (IJV). These are unique with bilateral governance structures underscoring co-ownership between partners of residual cash flows and assets of the IJV. Using a unique and comprehensive sample of 202 IPO firms from across the emerging African region evidence of both a pronounced internal as well as external role for IJV boards was found. Social and political legitimacy concerns dominate the external role of boards in particular. Increasing proportions of boards drawn from commercial and governmental social elites are associated with IJV IPO firms in high institutional quality while lower proportions of these elites are associated with civil code law jurisdictions rather than common law. Governmental elites are associated with country-level improvements in corruption control and political stability while commercial elites are only marginally associated with improvements in political stability, regulatory quality, rule of law and democratic voice and accountability measures.

Politics and Inheritance Law. Endeavours to Keep Classical Rules of Inheritance Law in the Polish Civil Code

After the Second World War the Polish authorities used the inheritance law as a political instrument to shape and consolidate the socialist system. The influence of ideology and politics on Polish inheritance law was especially visible during the works on codification of civil law in the period from 1947 to 1964. Firstly, article presents a brief look at the evolution of inheritance law in Bolshevik Russia and the USSR. The author depicts attempts at implementation of the Soviet model to the Polish inheritance law in three areas: the group of statutory heirs, freedom of testation and in the reserve system. In all those areas endeavours to keep classical rules of civil law were undertaken. Most representatives of the doctrine were able to bypass the political conditions in order to keep a high legal standard. The author strives to show how the scholars tried to preserve the classical inheritance law institutions by manipulating the political doctrine. By ideological justifications of the proposed legal solutions, in fact they enabled to keep in the Civil Code of 1964 most of the basic inheritance law rules of former regulation from 1946. Further remarks are devoted to the changes in inheritance of farms. Determination of authorities in conducting the new agricultural policy caused submission of inheritance regulations to the aim of increasing agricultural production. Normal 0 21 false false false PL X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:Standardowy; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin:0cm; mso-para-margin-bottom:.0001pt; text-align:justify; line-height:150%; mso-pagination:widow-orphan; font-size:10.0pt; font-family:Times New Roman,serif;}

Popularisierung von Gesetzestexten durch Paraphrasen. Beobachtungen zu den Bedingungen der Paraphrasierung

The general comprehensibility of law is a subject of constant debate. This study aims at giving suggestions for the popularisation of law texts in order to facilitate the transfer of legal information to people who have no special legal knowledge. This is done by exploiting authentic text data collected from the internet which consist of selected paraphrases on paragraphs of German matrimonial law. These include 1) betrothal (Verlöbnis), 2) state of marital cohabitation (eheliche Lebensgemeinschaft), and 3) marriage breakdown (Scheitern der Ehe), which are contained in the 4th book of the German civil law code, the Bürgerliches Gesetzbuch (BGB). The paraphrases are analysed according to their typology, manifesting itself in ‘minimal’, ‘total’ and ‘maximal’ variation. By way of the analysis, specific conditions of paraphrasing are abstracted from the data. Finally, the results of the analysis are summarised to be presented as a set of 10 recommendations applicable to the drafting of popularised law texts.

Codification of the civil law in the Republic of Macedonia

This paper analyses the process of codification in Europe in 19th century and its influence on the codification of civil law in post-socialistic countries. In light of the analysis of the codification process in post-socialistic countries, the paper puts the accent on the ongoing process of codification of the civil law in Republic of Macedonia. The idea for codification of Macedonian civil law was introduced for the first time in a project prepared by the Ministry of justice in 2009. However, the first official activities in regard of the codification started in 2011 when a Commission for drafting the Civil Code of Republic of Macedonia was instated by decision of the Government of the Republic of Macedonia. During 2012 the Commission held a meeting where the main point of discussion was the systematization and content of the Civil Code. It was concluded that the pandect system should be accepted regarding the draft of the code. After the meetings separate working groups started with the preparation (the draft) of three parts of the code - property, obligations and succession. At the moment the process of drafting the property law is still ongoing.

On the history of codification of Hungarian civil law and the new Hungarian civil code

The first part of the paper examines the basic tendencies in the development of the codification of Hungarian civil law in the period of representative and civil society. The second part deals with the new Hungarian Civil Code (2013/14) its content, methods of regulation and its relation to other civil legislation, temporal validity with the adherence to the idea of validity pro futuro, as well as its tendency to harmonize its norms with the guidelines of the European civil law. In accordance with the idea of completeness, the lawmakers incorporated all of the areas of civil law according to the pandecta system - personal law, corporate law with civil association law, family law, obligations and inheritance. The Code is based on the principle of equality of parties in civil relations, the principle of good faith, fraus legis prohibition. Family law is based on specific principles of protection of marriage, family and children. Contract law is based on the freedom of contract, limited by good customs and morality. Tort law is guided by the principle of prohibiting the harm to others, full compensation of material and imaterial damages. Contractual responsibility is regulated separately, so that the tort rules apply if the specific rules of contractual responsibility donot say otherwise. Other grounds for obligations are also regulated, as well as unjustified enrichment, doing business without order or authority, unilateral expression of intention and securities. The grounds for inheritance are contractual, statutory or based on the will. Freedom of disposition by will is limited by statutory rules regulating the forced share. The system of transfer of property ex lege after the death is adopted. The state is a successor if there are no testamentary, statutory or contractual inheritors.

On the (finaly promulgated) new Hungarian Civil Code from 2013

After 15 years of codification of civil law, with one ?unsuccessful attempt? represented by the Civil Code from 2009, Hungary finally received a new Code in February, 2013. By its coming into force on March 15th, 2014, the Civil Code from 1959 finally ceased to exist which, regardless the fact that it has been amended more than 100 times, permanently bore the marks of the era in which it was conceived. The new Civil Code may be regarded as the first complete code in the history of codification of civil law in Hungary, since it comprises all classical branches of civil law. The completeness of the new Code is additionally reinforced by the fact that it is based on the principle of monism in the wider sense, meaning that besides unified rules on all contracts, commercial and non-commercial, it contains rules on the status of all legal entities as well. In contrast to the ?first? new Civil Code from 2009, the ?second? new Civil Code from 2013 represents an incomparably higher degree of compromise. Therefore, it has all the predispositions to be long-lasting and stable, which are the most important distinctive features of a solid civil law codification. In this paper the subject of analysis are the process of codification of civil law from 2009 until 2013 and the most important novelties of the new Civil Code.

Perbuatan Melawan Hukum Komisaris terhadap Pemberhentian Sementara Direksi Perseroan Terbatas

The A Limited Liability Company has a company organ which runs the company functions, and the activities of the staff of the organ are not for the interest of themselves but for, on behalf of, and as a form of responsibility of the company as a legal entity. The problems discussed here are: First, is the legal action of the board of commissioners of PT. JOBS DB to temporarily suspend the board of directors of PT. JOBS DB categorized as illegal? Second, what are the legal effects of the action of the board of commissioners of PT. JOBS DB to temporarily suspend the board of directors of PT. JOBS DB which is categorized as illegal? This research aims to find out if the legal action of the board of commissioners of PT. JOBS DB to temporarily suspend the board of directors of PT. JOBS DB is categorized as illegal and the legal effects of the action of the board of commissioners of PT. JOBS DB to temporarily suspend the board of directors of PT. JOBS DB which is categorized as illegal. This research is a normative legal study using qualitative analysis. This research concludes that Sung Samuel Ham Wing as the commissioner of PT. JOBS DB and PT. JOBS DB have violated the provisions regulating the procedures of the termination of the member of the board of directors in both the Laws of Limited Liability Company and the Articles of Establishment of the company, and they have performed the illegal action in accordance to the Article 1365 of Civil Law Code. Therefore, the action of the termination is illegitimate and must never be considered exist.

Legitymacja procesowa w sprawach o zaprzestanie tzw. nieekologicznej reklamy w świetle przepisów ustawy - Prawo ochrony środowiska

The Act of 27 April 2001 – Environmental Protection Law by forbidding so-called non-ecological publicity provides for civil action to enforce the execution of the law, and at the same time equips an environmental organization with the right to institute the civil suit. The content of the Act, however, does not settle the question whether the environmental organization is the only entity authorized to initiate proceedings in this case, or if other entities are not excluded from the initiation to stop publicity, including, in particular, the prosecutor. There are reasons to adopt the other of the expressed positions. Since the legislature has put the matter to cease publicity which contains in content or in form the elements in conflict with the law to be heard and determined by civil courts, it has made them civil cases in the meaning of statute1 of the civil law code. According to the general principle, the prosecutor may institute proceedings in any case; and specific provisions provided for in exemptions do not include cases of cessation of publicity prohibited by law – Environmental Protection Law. As for the passive capacity, in light of existing rules one should opt for granting it to the entity issuing the advertisement. This will allow to eliminate situations in which a final judgment prohibiting publicity in content or in form that is contrary to the provisions will in fact not be executed due to the execution of the law on the manufacturer only, while it has no real impact on the actions of the issuer remaining outside enforcement proceedings.

The determinants of IPO firm prospectus length in Africa

This paper studies the differential impact on IPO firm listing prospectus length from increasing proportions of foreign directors from civil as opposed to common law societies and social elites. Using a unique hand-collected and comprehensive sample of 165 IPO firms from across 18 African countries the evidence suggests that increasing proportions of directors from civil code law countries is associated with shorter prospectuses while the opposite is true for their common law counterparts. Furthermore increasing proportions of directors drawn from elevated social positions in indigenous society is related to increasing prospectus length in North Africa while being insignificant in SSA.

NIKAH SIRRI; PRESPEKTIF HUKUM ISLAM DAN HUKUM PERKAWINAN NASIONAL

In Indonesian society, marriage has legal dualism. Namely, marriage (which) should be listed in the Religious Affairs Office (KUA) and the marriages were not recorded (Sirri marriage). In fact, if we examine more seriously, many Sirri marriages cause harm especially, on the part of women and children. And in fact, not the least negative effects caused by Sirri marriage. This paper discusses sirri marriage in the perspective of Islamic law and the National Marriage Law. Because sirri marriage not stated explicitly in both the Qur’an and hadith, hence, to determine the law (istinbat al-hukmi), jurists of Islamic law (in this case) do ijtihad whereby sirri marriage is categorized as al maslahat al murasalah, which refers to the maqasid al-shari’ah. However, sirri marriage is actually problematic for several reasons. First, sirri marriage is not part of prophetic tradition. Because, the Prophet advocates and implements wedding party (walimah al-’Ursy) with aim to proclaim marriage to the public (i’lanun nikah). On the other hand, the recording of the marriage is the leader commands (Ulil Amri). Meanwhile, Allah and the Prophet ordered to obey the leader (Amri Ulil). Since the recording of the marriage will benefit Muslims (maslahah), then Muslims should stay away from harm (mudharat). Second, sirri marriage is not in accordance with the national law of marriage, because the point ‘marriage record’ does not exist in the concept of sirri marriage. Whereas, marriage registration set forth in Article 2, paragraph 2 of Law marriage, no. 1 of 1974 and article 2, paragraph 1, 2, 3 of Law no. 9 of 1975, the Code of Civil Law (KUHP) and the Compilation of Islamic Law (KHI).

The Booke of Orders of Assurances: A Civil Law Code in 16th Century London

The 16th century was the century of ‘codification of insurance customs in Europe. The passage from oral knowledge to written rules entailed significant changes and favoured major developments. This was particularly the case for England, where an insurance code was written between the late 1570s and the early 1580s. In the 16th century English mercantile customs evolved rapidly, detaching themselves from the Italian influence. At the same time, the increasing importance of Anglo-Dutch trade favoured the assimilation of Dutch customs into the London insurance practice. The fast development of English insurance customs, however, entailed significant uncertainty as to the applicable rules. The rapid growth of an insurance market attracted the attention of several courts, thus further increasing uncertainty. The answer of the mercantile community was to establish a specialized court for insurance in London and to write down their customs. The result was a remarkably elaborate code of insurance, quite a unicum in England. The code sought to strike a balance between continuity and change, consolidating some old usages and borrowing foreign customs, mainly Dutch. The significant influence of Dutch customs was probably favoured by the strong commercial links with the Netherlands. English merchants considered similar rules as a means to further trade. In this respect, the English code attests how economic integration might pave the way to legislative convergence.

The (Re) Codification of Israeli Private Law: Support for, and Criticism of, the Israeli Draft Civil Law Code

The (Re) Codification of Israeli Private Law: Support for, and Criticism of, the Israeli Draft Civil Law Code

Few remarks on Vasilije Lazarevic's penal code draft (1839)

The article sheds light on some unfamiliar details related to Penal Code Draft for Serbia from 1839, authored by the mayor of Zemun Vasilije Lazarević. As this document to a large extent remained neglected in monographs and articles in relation with codification of criminal law in Serbia in 19th century, the author resolved to explore this topic thoroughly. Archival materials provided solid basis to learn more information in terms of what occurred to forgotten draft after Ministry of Justice had received it. Lazarević consigned his draft to Ministry of Justice between the end of July and beginning of October 1839. Not long afterwards, the Ministry proposed State Council to form a committee tasked with revision of the draft. State Council rejected the proposal, instructing the Ministry to appoint persons to revise the draft on its own. Only when they have finished revision, the draft would be examined by the State Council's committee. In the following year, 1840, Ministry of Justice requested Prince Mihailo Obrenović (1839-1842, 1860-1868) to elect members of the committee to revise Lazarević's draft. Not having jurisdiction over fullfillment of such request, the prince recommended State Council to do so. State Council opted for Minister of Justice Stefan Stefanović-Tenka, legislator Jovan Hadžić, judge of Appellate Court Lazar Zuban and head of Depatment of Police and Economics in Ministry of Internal affairs Stefan Radičević. However, due to turbulent political climate in Serbia, the committee was unable to execute its duty. In 1841, a new comittee was formed by State Council. It was made up of member of State Council Golub Petrović, Minister of Justice Stefan Radičević, head of Department of Quarantine and Sanitation in Ministry of Internal Affairs Jovan Stejić and professor of law Jovan Raić. Existing historical sources and literature reveal contradictory data regarding the committee's activity. The last commission was appointed in 1843, and it included member of State Council Lazar Zuban, head of Department of Ministry of Justice Sava Šilić, president of Belgrade District Court Lazar Arsenijević-Batalaka and legislator Jovan Hadžić. The committee had only partly revised the draft, after which it lied in the archives of State Council. At initiative of Department of Justice, State Council adopted the resolution that new drafts of Penal Code and Code of Criminal Procedure should be composed, which meant Lazarević's work ceased to represent basis for codification of criminal law. Lacking information on the contents of the draft and observations of committees, available archival materials do not allow to draw resolute conclusions on the topic. Nevertheless, the records of Petrovaradin Border Regiment kept in Croatian State Archives in Zagreb, some of which contain data on early codification of criminal and civil law in Serbia, may potentially offer more explanations to this subject.

A Proposal for Uniform Civil Code for Law of Succession in India

Uniform civil code (hereinafter UCC) of India is a term referring to the concept of an overarching Civil Law Code in India. A uniform civil code administers the same set of secular civil laws to govern all people, even those belonging to different religions and regions. This supersedes the right of citizens to be governed under different personal laws based on their religion or ethnicity. Such codes are in place in most modern nations. There is no doubt that the idea of UCC is by and large, a child of independent India.

The Code of Muslim Family Law and Law of Inheritance (1941) As Applicable in the Provincial Courts of Southern Four Border Provincess of Thailand: Issues and Prospects

This article aims at examining what place does the Code of Muslim Family Law and Law of Inheritance has in the minority Muslim of the Four Southern Border Provinces of Thailand. While many countries such as the Philippines, Sri Lanka where Muslims are minority has recognized officially Islamic Family law as a Law for Muslims. With regard to Thailand Islamic Family on marriage, divorce and wills could not be ignored. Unfortunately the place given to its application has so far been extended to those four border provinces only. While the Thai Civil and Commercial Law Code was applicable throughout the country including in the Four Southern Border Provinces of Thailand. Although there has been an attempt to extend the application of the Islamic Family to Muslims who are staying outside those four provinces, but no attempts have being made to investigate the contents of the Code of Muslim Family Law and Law of Inheritance which is currently applicable in the provincial courts in those four provinces. To a large extent the reforms of the contents of the code should be given priority than its application. This article intends to investigate the content of the Code and the course of future direction by exploring the available alternative according to Thai Constitution to the continued pursuit of reforming several articles in the code towards the Codification of Islamic Family Law in the Four Southern Border Provinces of Thailand.