Civil Law Systems Research Articles

The effect of judges' gender on decisions regarding intimate‐partner violence

AbstractThis article aims at disentangling the effect of judges' gender, experience, and caseload in the assignment of restraining orders in IPV cases. Previous literature has independently looked at the effect of gender on judicial decisions and found that it becomes relevant in gender‐related cases. However, we find that such effects are better understood in interaction with other contextual factors such as the experience of judges and the amount of work they face, because these determine the levels of uncertainty and information costs surrounding decisions. For our empirical analysis, we use data from on‐duty pretrial court decisions on restraining orders in Spain between 2010 and 2018. We find conditional effects of gender depending on experience and workload: more experienced female judges are more likely to grant protection orders than their male counterparts when the amount of caseload is high. These findings are relevant to understand the mechanisms behind judicial inequality under civil law systems, where judges' attributes tend to be unobservable by institutional design.

Reflections on the Functional Positioning of the Claims Analysis Method in the Teaching of Civil Law

Traditional civil law teaching mostly adopts theoretical lectures, and the lecture method with the goal of knowledge transfer has become the mainstream method of teaching civil law courses. Although the academic community once criticized this theoretical, abstract teaching method, its mainstream status has not been shaken. On the one hand, it is because the lecture method I,s an effective way for teachers to impart systematic knowledge and students to receive indirect knowledge; on the other hand, it is because China is a traditional statutory country, and although the civil law is an imported product, it is still formulated in a codified and cultural way. With the promulgation of the Civil Code, the teaching method of claim basis as the analysis method was gradually introduced to China by researchers studying in Germany and has become a more popular teaching method in the teaching of civil law. As an important successor of German civil jurisprudence, whether the claim-based analysis method, which is more in line with the legislative structure of the Civil Code, should be promoted as a necessary teaching method has become a more important topic. In the German legal education system, the analytical method of claim basis covers almost all stages from theory to practice and has a very important supporting role for German jurisprudence. However, it is undeniable that the claim basis analysis method itself has limitations. On the one hand, it provides an omniscient judge's perspective, which does not belong to the norm of real judicial practice; in addition, from the inherited situation of other countries in the civil law system, the complete adoption of the claim basis analysis method will raise the cost of the whole legal education. From the viewpoint of the actual requirements of legal education in China, the claim basis analysis method can only be used as one of the means of legal teaching and requires the relevant curriculum system to cooperate to complete the reasonable positioning of the claim basis analysis method.

Theory of Administrative Discretion: the Stages of Formation

Administrative discretion is an important construction of modern administrative law, the formation of which in many respects can be viewed as a “struggle” to limit the discretionary powers of the subjects of state administration. It is well known that good governance would be impossible without administrative discretion. There are four stages in the development of the modern theory of administrative discretion and each stage was devoted to one aspect of this one but these stages did not coincide chronologically and developed in parallel. They had a different methodology, which was used by the founders and followers of the approaches prevailing at each stage. The first stage started in France and formed by the 18th century. This related to the concept of prudent governance exercised prudent officials who were ruled by enlightened monarch. Their decisions were not reviewed by the courts. The principle of reasonable is the modern result of this stage – an absolutely unreasonable administrative act is null and void. The second stage developed in parallel with the first one but formed by the 19th century. Administrative discretion was formed as legal concept on this stage, and it was presented as free discretion, which also could not be a subject to judicial review. The third stage, characterized by competition between administrative justice and free discretion, took place at the end of the 19th and the middle of the 20th. Judicial possibilities for reviewing discretionary acts gradually expanded, criteria for evaluating such acts were created. These criteria were incorporated into the laws and legal judicial positions after the fourth stage began. The creative side of discretion has become a very important part of this legal construction, administrative discretion at this stage is defined as a way of laws concretizing. Nowadays, the third and fourth stages are developing in parallel in Russia. It should be noted that the Russian administrative law doctrine was formed as a common doctrine Civil Law system. Russian authors always used the methodology of Civil Law system, developed it, but they paid attention to the specifics of our administrative law, our governing and historical development. Nevertheless, Russian doctrine needs more research in order to create more legally formalized administrative discretion. As a result, the legislature and courts should receive academic decisions suitable for implementation.

Risk Allocation In International, European, And Turkish Business Law

There are differences in risk allocation in agreements under the civil law and common law systems. However, similar case law on overseas sales in international business law remain apparent. Therefore, INCOTERMS has a significant impact in this regard. In addition, this effect is sometimes seen in determining the ownership rights as well. The question here is how can the same result from the viewpoint of the passing of risk and property be obtained for all parties in international business law. In this study, the Author used a comparative method by comparing the French, German, Turkish, and English laws, and the United Nations Convention on Contracts for the International Sale of Goods on risk allocation in the sale of goods. Also, case laws were analyzed and compared to find out the main differences in practice. In addition, the effects of the use or absence of INCOTERMS in practice were discussed. As a result, it is better to utilize the Free on Board; and Cost, Insurance and Freight INCOTERMS, as well as the jurisdiction clauses in their contracts for business parties to reach the same result in terms of the passing of risk and property.

HARMONIZING THE CONCEPT OF OMNIBUS LAW AS A REGULATORY SOLUTION FOR EDUCATION TRANSFORMATION

The quality of human resources is one of the factors that hinder the improvement of the competitiveness of education. Regulatory issues are related to several fields of education that often transform rules that do not improve intellectual quality in the midst of a pandemic. Based on changes in President Joko Widodo's administration, the Working Cabinet separated the Ministry of Education and Culture from the Higher Education Education and merged under the Ministry of Research and Technology under Minister Nadiem Makarim. Therefore the higher education cycle in tertiary institutions is now under the auspices of the Ministry of Education and Culture. Often it may have implementation problems and conflicts between agencies and law enforcement starting with the quality of the applicable regulations. As a result, the regulations and rules of the authorities do not accommodate an increase in the climate of competitiveness of domestic education, but this article conveys a message that the government needs to work out a solution to improve laws through the Omnibus Law. The existence of Omnibus Law is well known in legal theories that are studied in the introduction of legal science in the flow of existing legal systems. The Omnibus Law theory originates from a country that adheres to a common law system even though the Indonesian state itself adheres to a civil law system. For this reason, the purpose of this paper is to understand the Omnibus Law and its use to fix regulatory problems in Indonesia.

Revisiting the effect of institutions on the economic performance of SSA countries: Do legal origins matter in the context of ethnic heterogeneity?

Our knowledge about the role of legal institutions in the developing world is limited. The present paper fills this gap in the literature by estimating, in a production function framework, how legal origins interact with ethnic heterogeneity in determining GDP-per-capita in 35 Sub-Saharan African (SSA) countries over the period 1970–2013. The countries in our sample follow either the Common (British) law or the Civil (French) law system and exhibit a wide range of ethnic heterogeneity. Our findings show that in the context of low ethnic heterogeneity, Common law is associated with better economic outcomes. Nonetheless, in the presence of high ethnic heterogeneity, countries under Civil law experience higher levels of political stability and coordination resulting in a higher level of GDP-per-capita. In SSA countries, stability and coordination are also essential factors in the efficient use of natural resources, which are abundant in Africa, and can substantially contribute to prosperity.

An Empirical Study on the Differences between Overt Translation and Covert Translation in Legal Text

Currently, it is key to convey precise meanings to readers for translators. Observing expressing habits between different languages is the precondition to make target texts more readable. It is crucial to ensure the exactness and seriousness of legal texts, but it does not mean that translators have to take machined way to leave out and even give up transmitting in-deep cultural implications for the intention of achieving the all-inclusive integrity of target content. It is a correct choice for translators to take overt translation and covert translation in line with traits of source language and target language and differences between civil law system and common law system. The intention of the article is to make an empirical study between overt translation and covert translation.

COUNTRIESVOORTGEZETTE HANDLING IN SOME CIVIL LAW SYSTEM COUNTRIES

Comparison of laws between countries will provide a broad picture of the similarities and differences of each country. However, comparing criminal law is not just looking for similarities and differences between the criminal law of other countries and the criminal law in force in Indonesia. More than that, it is to know and understand criminal law in detail in other countries. In this case, it should be used as comparative input in forming and developing national criminal law to reform federal criminal law. The institution of concurrent acts in criminal law is not recognized in countries that adhere to the Anglo-Saxon or the standard law system. On the other hand, in countries that adhere to the continental European system or the civil law system, institutions recognize concurrent actions. Countries that recognize direct travel are Germany, the Netherlands and Indonesia. Although based on the history of continuing efforts originating from Germany, Germany does not place continuing actions in the Criminal Code, but only in jurisprudence. Meanwhile, the Netherlands regulates continuing activities in Article 56 of the Criminal Code, and according to the concordance principle of the Indonesian Criminal Code, it also governs the declaration of conformity as contained in Article 64 paragraph (1) of the Criminal Code.

THE RECOGNITION OF THE DECEASED BIOMETRIC DATA UNDER PERSONAL NON-PROPERTY RIGHTS IN TERMS OF THE GENERAL DATA PROTECTION REGULATION

The authors of this work claim that the legislation of the European Union does not adequately protect biometric data, due to the actuality that the protection of biometric data after the death of a person is unresolved within the legal field of personal data protection. The General Data Protection Regulation (GDPR) does not apply to deceased individuals, meaning that biometric data that was processed under the GDPR during the individual's lifetime continues to be at risk of re-processing after the individual's death, meaning that businesses can potentially avoid GDPR when the person has died, and decide the fate of the deceased's biometrics at their own discretion.
 Taking into account the above, the authors of the work consider it necessary to orient special legislation to overcome the specified legal gap, and since the regulation on the protection of personal data is vague to solve the problem, the research proposal of the authors consists in the application of legal guarantees not only under the GDPR but also in conformity with civil law. Therefore, the authors aim to initiate provisions for potential legislation, including the consolidation of the processing of biometric data of the deceased as part of a person's last will. The development of legal norms that would protect the biometric data of deceased persons by classifying them as non-property rights is especially recommended for countries with a civil law system.
 The research paper also warns that privileges that belong to the non-property rights of an individual do not, as a rule, automatically pass to heirs. In this regard, in the absence of a person's will to decide the future fate of biometric data that is continuously processed at the time or after death, the authors offer to allow family members and other close persons to exercise the right to the protection of personal data, such as the right to be forgotten, on behalf of the deceased, and to demand the condition of appropriate technical and organizational guarantees in the event of such performance. In this matter, according to the authors, it is expedient to conclude agreements between interested parties and family members to determine the fate of biometric data. However, in order to avoid the realization of the right to the protection of personal data, which the deceased did not have time to realize during his lifetime, and if during the life of the person Article, 9 (2, a) GDPR confirmed as the basis for the permitted biometric data processing because it is subject to the consent of the person, then following the human-centric approach of the European Union, it is proposed to design and indicate in such consent a clause where the individual could specifically determine and decide the fate of the biometric data upon death, for example, to (i) delete, (ii) transfer for the research purposes.
 Consequently, the authors predict the development of legal regulation of biometric data by assigning it to the category of non-property rights. Hence, the adoption of special provisions for the protection of the deceased biometric data and ensuring the realization of the right to personal data protection is expected not only during life but also after death.

Muhammadiyah Information Jurisprudence : A Guide Freedom of Expression in Maqoshid Sharia-Based Social Media

This study aims to find out the guidelines for freedom of expression on social media according to Muhammadiyah Information Fiqh and to know the limitations of freedom of expression on social media based on sharia maqosid in Muhammadiyah Information Fiqh. This research is a qualitative research in the form of library research. This research includes qualitative research which is research aimed at analyzing the research object holistically, descriptively without statistical analysis methods. The main object of this research is various basic principles or values ​​in Muhammadiyah Information Jurisprudence. The research approach used is a philosophical approach (philosophy of Islamic law). Because as we all know, Indonesia adheres to a civil law system where on the principle of legality it states that the applicable law is only written law, while producing a written law takes quite a long time to be heard and promulgated. Therefore this study aims to explore legal formulations regarding freedom of expression in Indonesian legal regulations; to know the effectiveness of Muhammadiyah Information Fiqh accommodation in the concept of freedom of expression in Indonesia. The presence of Maqoshid Syariah is expected to be able to regulate freedom of expression behavior in accordance with the principles of Islamic law. This specificity is what makes freedom of expression must be regulated separately outside the realm of positive law.
 To achieve this goal, research was carried out using normative methods with an Islamic legal philosophy approach, namely by exploring problems in social media, then identifying Muhammadiyah information fiqh and Islamic law canons based on maqasidu syari'ah. Finally, elaborating on Muhammadiyah information fiqh and Islamic law principles based on maqasidu syari'ah to answer as well as give direction in social media
 The targeted output is the publication of articles in national journals, namely the Al Istinbath Journal indexed by Sinta 2 or 3. At the end of this research it is hoped to be able to create a model of applicable rules that can bridge the gap or gap between the speed of technological development and the speed at which the government issues regulations

How Does Case Law Shape Civil Law Systems? An Analysis of Spanish Administrative Courts

The paper explores the use of case law by Spanish administrative courts. Based on a database of 2964 sentences, a content analysis captures the integration of case law into the legal basis of court rulings. Even though case law is not listed as a source of law in the Spanish legal system, courts follow case law from either the same sentencing court (self-referential pattern) or higher courts (hierarchical pattern). The results of a logistic regression analysis point to a higher level of regulatory complexity and the configuration of the appellate procedures as incentives to integrate higher courts’ case law.

The Emerging Concept of Administrative Action in India

The scope of judicial review of administrative action has been the central theme of discussion in administrative law. Initially common law countries including India adopted the doctrine of wednesbury reasonableness to review administrative action. But subsequently under influence of civil law systems and Strasburg jurisprudence the doctrine of proportionality is being gradually accepted as the standard of judicial review by the common law countries. There are two models of proportionality namely the British Model or the state limiting conception of proportionality and the European model or the optimizing concept of proportionality. Of the two the European model is more objective and hence preferred. The Indian Supreme Court accepted the doctrine of proportionality in the year 2000. Yet even today the Indian legal system has not come to terms with the doctrine. There is hardly any case where the doctrine has been practically applied. The need of the hour is to increasingly apply the doctrine of proportionality to review administrative action in India.

ACTOR SEQUITUR FORUM REI: A THEORITICAL STUDY

The actor sequitur forum rei principle is the primary basis for determining the relative competence of civil courts in countries that adopt civil law systems. In this article, the role of the actor sequitur forum rei will be examined theoretically by analyzing theories related to personal jurisdiction, categorization of jurisdiction, and procedural justice theory. The analysis results indicate that actor sequitur forum rei is founded on the theory of power and is classified as a "connected" jurisdiction with a general nature, as jurisdiction is linked to the defendant's domicile. It enables the defendant to be sued in the forum of their domicile at any time and for any reason. Additionally, according to procedural justice theory, actor sequitur forum rei is shown to provide the defendant with protective aspects.

우리 민법에서 이혼과 공동양육 논의의 재고

The article discusses the Supreme Court’s stance on joint parenting and the designation of co-parents as co-custodians. It argues that while some criticize the position of precedents, joint parenting may actually be detrimental to children’s welfare, and the article focuses on the positive effect of designating one parent as the sole caregiver. The target judgment reversed a decision to designate a co-parent and remanded the case to the lower court. The article analyzes the concept of joint parental authority and joint parenting, considering foreign examples and Korea’s reality. It questions whether joint parenting is the best parenting method for children’s welfare in our civil law system and suggests the significance of the target judgment and the desirable form of joint parenting. This article explores the concept of joint parenting in the Korean Civil Act, specifically the designation of co-parents and sole caregivers. The author examines how the Korean system differs from that of the United Kingdom and the United States, where parental rights and caregivers are not separated. The article argues that joint parental rights and single parenting, rather than joint parenting, are more desirable in Korea, given the practical difficulties and side effects of joint parenting. The author also suggests that expanding the right to interview negotiations for those who are not caregivers could achieve the same purpose as joint parenting. The article concludes by emphasizing the need for careful consideration when deciding on the specific circumstances under which joint parenting should be allowed.

The Anglo-Saxon System of Common Law and the Development of the Legal System in Indonesia

Indonesia’s legal system is dynamically developing. Courts and constitutional judges often make legal discoveries to fill in the absence of law or to update existing laws. They do so to suit the most current needs. This condition should be an anomaly in Indonesia’s existing legal system as it applies to the civil law legal system. This research aims to track the roots of Indonesia’s legal system and to discover its development. Indonesia generally applied the civil law system. The practice where judges find and form laws in court is a convergence of the Common Law justice system. This system influences the legal system in Indonesia. In addition, Indonesian laws and regulations also adopted several legal concepts that are commonly found in the Anglo-Saxon legal system or the Common Law, such as Class Action, Citizen Lawsuits, and other concepts.

Menggagas Pendirian Bank Digital di Indonesia: Sebuah Telaah Yuridis

In the industrial era 4.0 as it is today, the ease and speed of getting things are highly sought after, including the ease and speed of getting financial services. The convenience of banking services is an advantage for consumers in choosing the services provided at the bank. This is what banks do to form services from conventional banks to open digital services. However, from a juridical aspect, in Indonesia there is no specific regulation governing digital banks. As a country that adheres to the civil law system, it has become a real consequence that all applicable laws must be codified and regulated in accordance with applicable laws. Problems arise when digital banks operate but there is no legal basis that specifically regulates dealing with it. Through normative juridical methods, research results showed that there are no specific rules governing digital banks in the form of laws in Indonesia, so a special rule is needed regarding digital banks because there are significant differences from conventional banks.

Comparison of Legal System Related to Implementation of Cyber Notary in Indonesia With Common Law And Civil Law System

Abstrak
 Di masa teknologi modern seperti sekarang ini dan terlebih lagi dalam keadaan pandemi Covid-19, disebut juga cyber notary yang mengharuskan semua posisi pekerjaan khususnya perihal ini posisi notaris dalam melaksanakan kewenangan dan tugasnya selaku notaris dengan teknis dengan basis teknologi terkhusus terkait urgensi pembuatan akta notaris dengan elektronik. Pada Pasal 16 Ayat (1) huruf m Undang-Undang Jabatan Notaris (Law 2-2014) mengharuskan seorang notaris dalam membaca akta di hadapan penghadap dengan di hadiri oleh sekurangnya 2 (dua) orang saksi serta diberikan penandatangan ketika itu oleh para pihak, notaris serta saksi. Sementara Undang-Undang Informasi Transaksi Elektronik (UU ITE) pada Pasal 5 Ayat (4) yang memberi batasan dengan melakukan pengecualian akta notaril tidak masuk pada kategori dokumen atau informasi elektronik. Sehingga pembuatan akta dengan elektronik tidak mendapatkan dasar hukum yang signifikan maka belum memberi jaminan kepastian hukum khususnya terkait autentisitas dan keberadaan dari akta elektronik tersebut. Metode penelitian yang dipergunakan yakni dengan metode penelitian hukum normatif yang mempergunakan pendekatan perpu dan analisa konsep hukum dengan bersumberkan dari meteri hukum primer atau sekunder. Hasil penelitian menunjukkan bahwa konsepsi cyber notary ini pada pembuatan akta elektronik dirasakan harus terdapat pengaturan yang memberikan aturan dengan jelas seperti apa syarat atau ketentuan untuk pembuatan akta notaris atau autentik yang dilaksanakan dengan mempergunakan konsep cyber notary. Sehingga notaris dapat melaksanakan tugas jabatan tersebut tanpa berlawanan dengan peraturan perundang-undangan dan undang-undang.
 Kata kunci: akta notaris; cyber notary; dokumen elektronik
 Abstract
 In the era of modern technology as it is today and even more so in the Covid-19 pandemic, cyber notaries require all work positions regarding notaries carrying out their authorities and duties as notaries with technology-based techniques, especially regarding the urgency of making a notary deed. Article 16, Paragraph (1), letter M of the Law on Notary Positions (UUJN) requires a notary to read the deed in front of the audience in the presence of at least 2 (two) witnesses, and be signed by the parties, the notary and the witness. Meanwhile, the Electronic Transaction Information Law (Law 19/2016) in Article 5, Paragraph (4), which provides limitations by making exceptions to notarial deeds does not fall into the category of electronic documents or information. So, the making of an electronic deed does not get a significant legal basis. It does not guarantee legal certainty, especially regarding the authenticity and existence of the electronic deed. The research method used is the normative legal research method that uses the Perpu approach and analysis of legal concepts sourced from primary or secondary legal materials. The results show that the concept of a cyber notary in the making of an electronic deed must have rules regarding the terms or conditions for making a notary or authentic deed that is carried out using the concept of a cyber notary. So, the notary can carry out his duties without contradicting the laws and regulations.
 Keywords: notarial deed; cyber notary; electronic document

Menggabungkan Tradisi dan Modernitas: Perbandingan Sistem Hukum dan Implikasi Pancasila

This research aims to analyze the relationship between various legal systems in the world and the values of Pancasila as Indonesia's fundamental principles. This research starts from the premise that a deep understanding of the differences and similarities between Civil Law and Common Law legal systems can provide new insights in applying Pancasila in a global context. The modern world requires states to accommodate various legal traditions while adapting to international practices. In Indonesia, the implementation of Pancasila values is often faced with the challenge of integration into a diverse global legal system. This phenomenon raises questions about how Pancasila can function in the context of a broad comparison of legal systems. This research aims to explore how the Civil Law and Common Law legal systems interact with the principles of Pancasila, and how this comparison can contribute to the development of inclusive and dynamic law in Indonesia. Comparative methods are used to analyze legal systems from various countries, with an emphasis on literature studies and normative analysis. Historical and philosophical approaches are also applied to understand the context and evolution of each legal system as well as the integration of Pancasila values. This study reveals that although there are substantial differences between the Civil Law and Common Law legal systems, there is room to integrate Pancasila values into each system. Pancasila not only acts as an ethical principle, but also as a framework for the formation of laws that are responsive and adaptive to global change, respecting domestic and international legal traditions.

Juridical Review of International and National Law Relationships

The Civil Law system tends (although not always) to be less receptive to the extradition of its citizens. As a result, their systems allow the exercise of jurisdiction over their citizens over offenses committed abroad. Common Law countries. Formulation of the problem how the relationship between international law and national law. This research is a normative legal research. This research studies law which is conceptualized as a norm or rule that applies in a society and becomes a reference for everyone's behavior. The approach used is a conceptual approach that departs from the views of experts and doctrines that have developed in international law and national law as a unified legal system in the pyramid of universal law so that international law has priority.

Making Law Possible

Making Law Possible