Civil Obligations Research Articles

Political education: A synopsis of its religious foundations and principles in Islam

Political in Islam is based upon certain concrete foundations. God, man and the world have always been of special interest to humans. Thomas Hobbes, one the most important theorists in the West, considers stability, security, avoidance of civil war and disunity as the highest goal in building a power structure in a country, and considers education inevitable in order to maintain such a state. He mainly focuses on the duties and civil obligations of citizens towards the ruling political system. However, in the contemporary political thought of Islam, there are certain principles that, in addition to the duties of citizens concerning the political system, emphasize upon the human duties towards the system which is based upon the sovereignty of God. The primary question which arises is, what are the principles of political in contemporary political Islamic thought? The epistemological, ontological and anthropological foundations, and the principles adopted from them, provide for the theoretical discussions necessary for political in contemporary political thought. Accordingly, we will analyse these and other related principles. After analysing the content of the works and studying the sources, we will outline the basic principles and the foundations of political in Islam. Similarly, we will prove that the contemporary political thought of Islam possesses a framework which is based upon a number of principles and doctrines which are in line with the worldly and afterlife requirements of mankind and help to build a strong, powerful and productive society. The investigation in this article confides itself in descriptive and analytic methodology.

Aspects of Civil Rights and Their Integration into International Social and Environmental Legislation

The paper examines the aspects of the formation of a legal situation in which civil rights and obligations can not only emerge but also modify and terminate on various grounds. The relevance of the study is determined by the fact that civil rights and responsibilities usually rely on basic normative acts, which formalize the structure of public relations. The problem calls for further investigation of the doctrinal aspects of the emergence, modification and termination of civil rights and obligations. Within regulation of social relations rights and responsibilities can also emerge in the absence of a relevant framework and get shaped in the course of the development of the legal system of the state. The purpose of the article is to offer classifications and to discuss the sustainable ways of regulation of civil rights and obligations for the state and participants of the legal process. The subject of the study is civil rights and duties within the legal environment for their implementation. Our interest is in the description of the conditions for improving the structure of the legal environment and the sustainable development of civil society in the future. The results of the research describe the directions and the forms of development of long-term legal regulation in the social state system and its integration into international social and environmental legislation.

REVISION OF THE PACKAGE TRAVEL DIRECTIVE AND ITS INFLUENCE ON THE CROATIAN TOURSIM LAW

The paper explores normative substance of the new Package Travel Directive (2015/2302/EU) and its influence on the Croatian Tourism Law. The new Directive was adopted on 25 November 2015, European Union Member States had to transpose it by 1 January 2018 and it is applicable from 1 July 2018. Internet as increasingly important medium for travel services resulted in surge of various forms of customized travel arrangements and rendered provisions of the old Directive obsolete to the needs modern tourist market. Although 23% of EU travellers still purchase traditional, pre-arranged packages, more and more either buy different parts of their trips separately or buy customized holidays, which are put together by one or more commercially linked traders to suit their needs and preferences. Vast majority of travellers buying packages and linked travel arrangements are consumers within the meaning of the EU Consumer Protection Law. Thus, new Package Travel Directive should result in the enhancement of the consumer protection. New legislation will extend protection of the of the 1990 EU Package Travel Directive to cover not only traditional package holidays, but also give clear protection to 120 million consumers who book other forms of combined travel. Scope of the new Package Travel Directive is substantially wider than the scope of the old Directive. The new Package Travel Directive applies to packages offered for sale or sold by traders to travellers and to linked travel arrangements facilitated by traders for travellers. The new Directive broadens the concept of package and now will apply to different sorts of travel combinations: pre-arranged packages; customised packages and linked travel arrangements. This paper elaborates on normative and substantive influence of the new Directive in Croatian Tourism Law. Following comparative legal overview current Croatian legislation of package travel including applicable sections of the Civil Obligations Act will be inspected.

Democracia versus absolutismo. Contraste teológico-político entre Baruch de Spinoza y Thomas Hobbes

Entre las teorías de Thomas Hobbes y Baruch de Spinoza hay destacadas coincidencias y también importantes diferencias. Inician y revelan cambios en la teoría y la práctica políticas que ocurren en corto espacio de tiempo pero que son decisivos. Antecesores del positivismo, ambos compartieron bases ontológicas y metodológicas, lo que suele interpretarse, por razones cronológicas, como una influencia de Hobbes en Spinoza. Las diferencias entre ambos versan sobre el sentido de la religión en relación con su papel en la política; las relaciones entre la revelación divina, la ley y la razón naturales y el orden moral; el iusnaturalismo como fundamento del sistema jurídico-político; el sentido y contenido del contrato social como fundamento de la obligación civil. Todas estas divergencias conducen a la más importante de todas, y es que Hobbes se enroca en un absolutismo que desconoce los derechos de la conciencia, mientras que Spinoza se erige en defensor del fuero interno.

Educational service as an object of civil rights

The author has studied the features of educational service as an object of civil rights.
 It has been noted that social benefits should not be understood as the object of civil rights, as some researchers insist on, the object of civil rights must be perceived as a legal behavior of the participants in legal relations. The main argument in favor of such a conclusion is the indication that the right as a regulator of public relations can affect only the volitional conduct of the participants, but not directly the benefits. The benefits are not capable of perceiving the legal requirements of legislative acts or contracts. Consequently, the educational service should be regarded as the legal behavior of the provider of this service, aimed at forming certain social qualities of the subject of educational influence.
 Behavior of educational services’ providers is a series of interrelated and purposeful acts of conduct (operation), and when such operational actions are carried out over a long period of time, they become the nature of activity.
 The legal form of providing educational services is a contractual obligation. The object of such binding legal relations is the requirement of the customer of the educational service in relation to the execution of the relevant subject actions by the provider and the subsequent positive reaction of the latter to the fulfillment of his duty. The object of the considered legal relations and the object of the subjective right of the customer of the educational service, according to the author of the article, coincide in their volume.
 It has been emphasized that the providers of educational services cannot have civil and legal obligation to guarantee the effectiveness of training, since the achievement of such an effect depends on the intellectual capacity of the subject of training and other factors. The eligibility criteria for the performance of educational services are regulatory requirements that determine the content of a particular level of education, the volume and sequence of teaching disciplines, etc. Based on this, one of the features of educational services is the implementation of public control over the compliance of the substantive conduct of the providers of such services with the requirements of the law.

CONSEQUENCES OF BREACH OF CREDITOR’S OBLIGATIONS

The article considers the measures which should be applied to a creditor in case of breach of creditors obligations. The author states that performance of creditors obligations is protected by civil-law sanction. The term sanction is comprehended by the author in a general sense and integrates penalties and other protection measures. Under the Civil Code of the RF compensation of losses can be applied to a creditor as a penalty, but other protection measures are applied to acreditor oftener (for example,onesided change of contract conditions by adebtor) because of subsidiary character of creditors obligations. At the same time, ensuring performance of such duties by civillaw sanctions emphasizes their importance for the proper performance of obligation and allows to make aconclusion that creditors obligations are an independent element of the content of the civil obligation and are not a part of acreditors right.

The Structure of Subjective Civil Rights and Civil Obligations

A subjective right acting as a measure of possible behavior of an authorized entity is filled in objective reality with concrete content as a known part of a system of a different order - legal relations. In this aspect, any subjective civil regulatory right can have two qualitative states: the first exists from the moment of the emergence of the right, the second - from the moment of violation or challenging of the right. Accordingly, the subjective civil regulatory right includes a mandatory (regulatory) and a facultative (protective) powers. At the same time, a subjective civil protective right designed to protect another right that has already been violated initially includes only protective powers. The subjective civil right corresponds to the subjective civil obligation. Both these phenomena, by virtue of the dialectical law of unity and struggle of opposites, constitute an inseparable unity, forming, at the same time, the content of a legal relation. To this end, the essence of the civil-law obligation is determined on the basis of the essence of subjective civil law right which is opposed by the obligation in question.

Legal facts as the basis of subsidiary civil obligations

Legal facts as the basis of subsidiary civil obligations

De la autonomía de la voluntad: noción, limitaciones y vigencia

En el texto del presente documento se tratará el concepto y antecedentes del principio de la Autonomía de la Voluntad con el propósito de demostrar su vigencia y aplicabilidad actual en el derecho privado colombiano. De igual forma, se expondrá y explicará la cláusula general responsabilidad civil contractual de los particulares, establecida en el famoso artículo 1602 del Código de Bello de 1873, contentiva, además, del principio a que hacemos referencia en el título del presente ensayo, para concluir en su plena vigencia y utilidad.
 Debe observarse que no es propósito de este ensayo agotar íntegramente el estudio del tema, por cuanto dicha pretensión requeriría de un mayor número de páginas así otro escenario académico diferente al que hoy nos convoca. Se intenta, más bien, introducir al lector en este apasionante mundo jurídico de la teoría general del negocio jurídico y, en particular, en la teoría del contrato como noción básica y fundamental de la teoría general de las obligaciones civiles.

Electronic petition as an effective tool for political participation of citizens

In recent years, information and communication technologies have become a source for democratic innovations, for example, the submission of electronic petitions by citizens allows drawing the attention of the authorities to the problem issues in society. These tools of e-democracy allow us to improve defined forms of traditional democracy and to maintain a systematic dialogue between the authorities and society. Electronic petition is one of the most effective tools of e-democracy, because other electronic discussion platforms do not provide such fast and reliable results. Petitions allow us to express dissatisfaction with the law passed or proposed by parliament, administrative decisions of the executive power or absence of urgent actions; express views on the results of a separate state policy. The uniqueness of petitions lies in the fact that the initiative takes place from the «bottom» of civil society to the «up» of authorities, government should only provide a platform for this. The additional benefits of using electronic petitions are the stimulation of increased interest in various state issues; publicity of their consideration, which creates a sense of solidarity in the community during the execution of a civil obligation. This tool extends the powers of citizens, further legitimizes actions of state authorities by explaining the impact of government policy on public life, maintaining close interaction between citizens and elected officials, and increasing responsibility and accountability of the government. The main purpose of the study is to analyze tool of electronic petitions, to determine its efficiency and applicability, investigate general factors influencing on motivation of signing petitions. Article deals with the general characteristics of electronic petitions, their typology; also the influence of submitted electronic petitions on the state policy is determined; defined the conditions and criteria for a successful electronic petition and motivation of citizens to use the electronic petition tool.

A return to the manifest justice principle: a critical examination of the "reasonable suspicion/apprehension of bias" and "real possibility of bias" tests for judicial bias in South Africa and England

The impartiality of judges often expressed in the Latin maxim nemo iudex in propria causa interpreted to mean that no man should be a judge in his own cause together with the right of fair hearing make up the right to natural justice. This principle is recognized by a number of provisions of the Constitution of the Republic of South Africa, 1996. Section 165 (4) provides that the organs of state shall through legislative and other measures assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. Furthermore, section 34 of the same Constitution provides that everyone has the right to have any dispute resolved by the application of law by a court or, where appropriate another independent and impartial tribunal or forum. Article 6(1) of the European Convention of Human Rights and Fundamental Freedoms 1950 as incorporated in the Human Rights Act 1988, applicable in England since 2000 provides that: "In the determination of his civil rights and obligations … everyone is entitled to a fair hearing … by an independent and impartial tribunal established by law." The independence of courts and impartiality of judges are closely related in that they operate to sustain public confidence in the administration of justice.
 This article advocates a return to the use of the manifest justice principle enshrined as the proper contextfor the application of the tests of "reasonable apprehension of bias" adopted by South African courtsand "real possibility of bias" adopted by English courtsin the consideration of allegation of apparent bias. This paper argues that the tests are differentand that while the English test is a move of English courts from the real danger/likelihood
 test in consonance with an overwhelming global jurisprudence the South African test is a move away from this global jurisprudence and arguably back to the real danger/likelihood test. This paper also argues that the reasonable apprehension test as applied by the minority in SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing)is a more acceptable interpretation of the reasonable apprehension test than the test laid down in President of the Republic of South Africa v South Africa Rugby Football Union (2) and its interpretation by the majority in SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing). More importantly there is an examination of cases where the tests have been applied which hopefully shows that there are considerable problems and inconsistency in their application and argue that the manifest justice principle provides the proper context for the tests to be properly applied.

New measures to secure the performance of civil obligations in Vietnam’s civil code 2015

Measures to secure the performance of civil obligations have been used relatively long in practice but mainly applied in the fields of credit and banking. At present, there exist two parallel regulation systems: the general regulation system of secured transactions applied to all civil transactions and the system of security measures by credit institutions. The former serves as framework on which the latter was developed to be in line of this industry’s nature. This paper presents two new security measures which are supplemented in the list of security measures stipulated in the civil code of Vietnam 2015 with drastic changes in the establishment and effect of the established transactions.

DISTINGUISHING BETWEEN THE ART. 206 OF THE CRIMINAL CODE OF UKRAINE «RESISTANCE TO LEGITIMATE BUSINESS ACTIVITY» AND THE ART. 355 OF THE CRIMINAL CODE OF UKRAINE «DURESS TO PERFORMING OF CIVIL OBLIGATIONS» IN THE ASPECT OF THE CONTRACT FREEDOM ABUSES

The principle of freedom of the contract means that the parties are free to conclude the contract as well as to choose the contractor under the contract and in determining the conditions of the contract. The violation of this principle is generally the civil tort. However, violent forcing the parties to conclusion or performing the contract constitutes crime in cases stipulated by the Criminal Code of Ukraine. Article 206 of the Criminal Code of Ukraine «Resistance to legitimate business activity» criminalizes the demand to enter into the agreement or not to execute the agreement. Article 355 of the Criminal Code of Ukraine «Duress to performing of civil obligations» forbids the demand concerning performing or non-performing the agreement. Such demands in both crimes are connected with the mental or physical violence. This increases the danger of such behavior to society to the level of crime, because without violence such claims are not crimes itself. The term «agreement» in these articles has the different content. In Art. 206 of the Criminal Code of Ukraine it means only the agreements concluded in the framework of economic activity. This follows from the basic direct object of the offense (freedom of legitimate economic activity) and characteristics of the victim (the business entity). At the same time the agreement in art. 355 Criminal Code of Ukraine should be regulated by the civil law. A broad approach to the interpretation of this term should be used. Agreement in this case means all private agreement regardless of the specific branch of the law (including employment law, family and commercial law etc.) concluded between legally equal and independent subjects. Accordingly, the term «agreement» in the Art. 355 Criminal Code of Ukraine is broader in its content than the same term in the art. 206 of the Criminal Code of Ukraine. In the Art. 206 of the Criminal Code of Ukraine the requirements violating the principle of freedom of contract may be presented at the stage of contract concluding as well as at the stage of it performing. Instead of this, in the art. 355 Criminal Code of Ukraine the demands apply only to the stage of the performing of the contract that has been in force already. It is difficult to distinguish requirements «not to fulfill the agreement» in both Art. 355 of the Criminal Code of Ukraine and Art. 206 of the Criminal Code of Ukraine. «Duress to performing of civil obligations» is the offense, which establishes criminal liability for creditors who aim to realize their legal requirements (often, debt recovery) to the debtor-victim by the means of violence. On the contrary, a claim not to fulfill the agreement pursues the opposite goal - to force the debtor to violate his obligations. Thus, the requirement not to fulfill the agreement as an element the crime of «Duress to performing of civil obligations» is superfluous. Such a requirement should be qualified using the art. 206 of the Criminal Code of Ukraine.

Spełnienie świadczenia odpowiadającego zasadom współżycia społecznego a zobowiązanie naturalne. Kilka refleksji z perspektywy historycznoprawnej

The article attempts to answer the question of whether the legal institution regulated in article 411 paragraph 2 of the Civil Code can be called a natural obligation. For this purpose it examines the evolution the institution of the natural obligations from the Roman law to the present days. This analysis shows that the idea of natural obligation evolved over the centuries. It may be noted that under the influence of the idea of natural law the natural obligations began to associate with the moral obligations. This was reflected in modern codifications of civil law in the nineteenth and early twentieth century. What’s more, the French Civil Code has been recognized a natural obligation as a source of civil obligation.

Cross-Country Variation in People’s Attitudes toward Citizens’ Rights and Obligations: A Descriptive Overview Based on Data from the ISSP Citizenship Module 2014

In a world of increasing democratization and global migration, questions of the access to citizenship as well as of citizens’ political, civil, and social rights and obligations play a decisive role. Whereas citizens in many countries do not make use of their democratic rights, noncitizens in many cases strive to become full members of society. The current International Social Survey Programme module on citizenship picks up diverse attitudes toward citizens’ rights and obligations as well as self-reported political interest and action. What behavior and underlying opinions constitute a good citizen in the view of people from 34 countries, and what democratic rights do they consider important? How satisfied are they with the democratic system, the political institutions and protagonists, and their opportunities to participate in politics? This contribution sheds light on fundamental cross-country variation in these questions, among citizens from diverse countries of varying legal systems and traditions of democracy.

Pravni položaj poštenog i nepoštenog posjednika u odnosu na vlasnika stvari

U radu se obrađuje problematika vezana uz pravni položaj poštenog i nepoštenog posjednika u odnosu na vlasnika stvari, odnosno analiziraju se prava koja pripadaju posjedniku stvari i zahtjevi koje posjednik može postaviti prema vlasniku stvari kojem posjednik mora predati stvar. Također se s druge strane analiziraju prava i zahtjevi vlasnika stvari prema poštenom i nepoštenom posjedniku. U praksi se pojavljuju dvojbe u svezi s određivanjem nužnih i korisnih troškova koje je imao pošteni posjednik, koje su pretpostavke i do kada se može istaknuti pravo zadržanja radi naknade tih troškova, kada nastupa zastara takvog potraživanja i koliko su važne odredbe Zakona o obveznim odnosima u svezi sa stjecanjem bez osnove, poslovodstvom bez naloga ili pravom zadržanja, a koje reguliraju istu ili sličnu problematiku. Odgovore na neke od tih dvojbi dala je sudska praksa, slijedom čega je osnovna metoda u radu analiza i istraživanje sudske prakse, posebno odluka Vrhovnog suda Republike Hrvatske.

Registro civil y secularización. Comparación entre Ecuador y Francia

El estudio de la creación del Registro Civil y de sus relaciones con los sacramentos de la Iglesia nos conduce al corazón de varias problemáticas jurídicas y político/religiosas de gran importancia. La comparación entre las historias recientes respectivas de Francia y Ecuador, dos países de tradición católica de distintos continentes, ofrece un interesante ángulo de análisis de estos problemas. Las numerosas observaciones de Mons. Juan Larrea Holguín sobre el tema de las relaciones entre el sacramento de matrimonio (y el bautismo) y las obligaciones civiles (registro civil) pueden aplicarse en gran parte para Francia. La precisa comprensión de las instituciones necesita siempre aludir a su historia. La génesis del registro civil demuestra cuál era el fin perseguido por los estados laicos, según una lógica de secularización, un tanto beligerante contra la Iglesia. A continuación, se revisa cómo se mantuvieron las reglas del registro civil en los siglos posteriores, tomando en cuenta los nuevos contextos políticos nacionales e internacionales, donde se modificó la postura diplomática de la Iglesia. Finalmente se observa cómo los derroteros entre ambos países se han separado muy recientemente. Este estudio nos muestra lo que se juega de libertad religiosa en los tiempos contemporáneos y abre interrogantes sobre los lazos que la Iglesia debe guardar con las legislaciones civiles.

Limitation of liability right in road freight carriage in Croatia: an extinct institute

Although it is a European Union member state and a party to the CMR Convention, Croatia has not ratified the 1978 CMR-SDR Protocol. Under Croatian law, the carrier liability limit concerning damage to cargo in international transport is not 8.33 special drawing rights (SDR) but, rather, 25 Gérminal francs per kilogram, based on the 1956 CMR Convention. Due to the current price of gold on the world market, such amounts will almost invariably exceed the value of the actual damage, which constitutes a de facto abrogation of the carrier’s right to limit his liability. The co-existence of the two systems for establishing a carrier liability limit has led to a disunification of the issue of carrier liability limitation in the international carriage of goods. Conversely, in 2002, all provisions of the Croatian Road Transport Act of 1998 concerning the contract of the carriage by road in national transport were abolished, depriving Croatian law of its pertinent lex specialis. Consequently, claims for damages are subject to the lex generalis—the Civil Obligations Act of 2005, which provides no specific limit of liability. Since the special law has been abolished and the 1978 CMR-SDR Protocol was never ratified, Croatian transport law does not provide for the possibility to calculate the amount of the carrier liability limit in accordance with the internationally recognized amounts, which are often referred to in the conditions of professional carrier liability insurance policies. This de facto provision abolishes the right to limit liability for the Croatian road carrier, often also leaving him deprived of efficient insurance coverage. Such a situation also creates two distinctive legal regimes of limitation of liability right for the carrier within the CMR member states.

Subjects of civil obligation

У статті здійснено аналіз положень цивільного законодавства щодо визначення поняття та видів суб’єктів цивільних правовідносин, а також теоретичних досліджень з даної проблематики. Окрему увагу присвячено випадкам заміни сторін у зобов’язанні.

Юридическая конструкция финансовых обязательств: концептуальные основы формирования

In this article the legal construction is considered as a method of cognition, interpretation of law and as means of law-making technique at the same time. The author outlines the legal construction of the financial liability and provides with its structural and substantive description. The author offers to consider the legal construction of the financial liability as an inter-branch construction that combines private law constructions and public law constructions of monetary obligations. The majority of these constructions have a complex structure, where each party has the right to claim the completion of obligations and duty to complete these obligations at the same time. In this case, the majority of studied constructions of civil obligations are characterized by counter retribution while public law constructions by counter gratuitousness. The structural elements of this inter-branch construction are subjects, object and conditions of the obligation. The paper analyzes maintenance of selected structural elements. Using the method of scientific abstraction it is proposed to allocate General and Special conditions of financial liabilities. Special conditions of financial liabilities depend on the peculiarities of private law and public law regulations and on target orientation of liabilities (on the formation or on the expenditure of public funds). The author focuses on the target characteristic of structural elements of financial liabilities legal constructions. It is proposed to allocate the total and the direct target orientation of the financial liability.