Contra Legem Research Articles

Contract and Tort Choice of Cause of Action by Persons from the Standpoint of Justice: Pro et Contra

The paper deals with the issues of choice of cause of action as to contract and tort in Russian and foreign law, as well as contract and tort competition between persons. The problem of choice between contractual and non-contractual liability has an artificial character for Russian scientific and judicial doctrine. The choice of cause of action relates to the alternative in claims, but not to the alternative as to debtors. It is concluded that modern scientific and judicial doctrine based on a multifunctional interpretation of civil liability can substantiate and justify not only the phenomenon of compensatory aspect of choice of cause of action by persons, but also the possibility of circumventing the limited liability established by law (contra legem) if it meets the goals of fair liability. These include deterrence of harmful behavior and stimulation of potential to ensure the proper performance of their duties to ensure the safety of their activities. Russian law enforcement practice indicates an increasing trend towards the socialization of civil liability, its focus on preventing harm to an indefinite circle of people, social harm (harm to society).

The Implementation of Contra Legem Principle in Dividing Joint Assets Post Divorce for Different Contributions Maqasid Shari’ah Perspective

The dividing of joint assets after divorce plays a central role in the achievement of justice. This research explores the case of the dividing of joint assets at the Malang Regency Religious Court; the defendant opposed the claim for joint assets with the argument that the joint assets were realized more by the wife because her father assisted it. This study aims to analyze the judge's consideration in deciding the dividing of joint assets by using the contra legem principle in case number 1786/Pdt.G/2023/PA.Kab.Mlg and its analysis in maqsid shar’ah. This research is empirical research using a descriptive qualitative approach; this research was conducted at the Religious Court of Malang Regency using interview and documentation methods. The results showed that 1). The dividing of joint assets by 70% for the counterclaim defendant and 30% for the counterclaim plaintiff is based on distributive justice that looks at the legal facts in the trial. 2). The maqsid shar’ah analysis confirms that the decision supports the preservation of assets, offspring, and soul in the context of the basic needs of the darriyt. In addition, it provides convenience for both parties without having to start from scratch in the context of hajiyt needs.

The Legal Nature of the Lease Purchase Agreement: Issues of Application of the Loan Structure and Judicial Interpretation

The essential-substantive approach to the subinstitute of the lease purchase in civil law is to study the essence of this lease agreement through its features and essential conditions. The essence of the first order is the specifics of the lease agreement itself, and the essence of the second order is the consideration of lease purchase as a substitute. This methodological approach makes it possible to determine the place of the contract in question in civil circulation. It is argued that the study of the lease purchase agreement through its essence is the most effective method of studying a lease agreement in the system of civil law contracts. Using the example of judicial practice, the features of the leasing agreement and the reasons for its unpopularity in Russia are revealed. It has been established that judicial practice follows the path of equating leasing with credit and loan relations. This position of the courts is disputed by the authors. Legal relations under loam and leasing are distinguished, which, according to the authors, will avoid judicial errors in determining the legal nature of the lease purchase. It is proved that the lease purchase is a type of lease agreement, and not a loan or loan agreement. In a loan agreement, the borrower always becomes the owner of the subject of the agreement, and in a leasing agreement, the title of the owner of the property remains with the lessor until the end of the agreement. It is proved that the application of the interpretation of contra legem has a negative impact on the development of contract law, in particular leasing legal relations.

Incidentality of the civilian harm in international humanitarian law and its Contra Legem antonyms in recent discourses on the laws of war

Abstract This article develops an interpretative effort to clarify the meaning of the notion of incidentality of the civilian harm in international humanitarian law (IHL), with particular concern to the role of this concept as normative cornerstone for a systematic reading, and coherent implementation, of the law of targeting. The article begins with a critical analysis of recent discourses on the laws of war, focusing on the emergence and growth of contra legem uses of the concept of ‘collateral damage’. These discourses revolve around proportionality in attacks, commonly re-translating this rule by removing incidentality as legal qualifier of the civilian harm susceptible of proportionality assessments. The article shows that proportionality misconceptions neglecting incidentality have become so common and accepted as to be often confused with structural features of IHL. On the contrary, the analysis highlights the collisions between these conceptions, on the one hand, and IHL targeting prescriptions, their interplay and protective functions, on the other, unveiling how the former result in promoting unlimited expansions of the entity of civilian harm that can be object of proportionality assessments, even when this civilian harm constitutes the largely preponderant, main anticipated result of a given attack. Within a background of unequal relativization of international humanitarian law (IHL) parameters, minimalist understandings of incidentality have also been the basis of questionable orientations about attacks on residential tower buildings, reproducing exponential ‘militarizations’ of civilian objects (and at times of the protected persons therein) for proximity with lawful targets. Cumulatively, these discourses and scholarly orientations contributing to depriving proportionality of its incidentality requirement continue to produce dramatic consequences for civilian protection worldwide and provide aggressive military powers with arguments functional to circumvent the prohibitions of disproportionate and indiscriminate attacks. Against these tendencies, it is proposed that the notion of incidentality of the civilian harm, in homage to letter, object, and protective purpose of IHL, and understood with the interpretative help of mens rea categories, should be strictly construed and urgently re-centralized by laws of war scholars as a fundamental conditio sine qua non for proportionality assessments and as main dividing line between the operative spheres of distinction and proportionality.

The principle of legality and the provision “the judge is subject to the law” in the context of the doctrine of the development of law contra legem

The research subject. This study focuses on the correlation between the doctrine of development of law contra legem and the principle of legality, with a specific emphasis on the position that “judge submits to the law”.The purpose of the research. The objective of this research is to examine the compatibility of the doctrine of development of law contra legem with the principle of legality and evaluate the applicability of the "fourteen-year-old child" formula in assessing legislative regulations.Methodology. This research utilizes a legal analysis and conceptual examination of the doctrine of development of law contra legem and the principle of legality. It also involves a comparative analysis of legal principles within the post-Soviet context.Main results of the research. The analysis reveals that strict adherence to the principle of legality may not always align with societal interests. The doctrine of development of law contra legem provides an exception to the principle, allowing judges to evaluate and challenge the illogicality or unfairness of legislative regulations. The "fourteen-year-old child" formula, with its low standards for determining such flaws, safeguards judicial independence and shields judges from potential political pressures.Scope of application. The findings of this research can be applied within the legal framework, particularly in post-Soviet jurisdictions, where the interplay between the principle of legality and the doctrine of development of law contra legem is of significant relevance.Conclusion. The strict fulfillment of the requirements of the law (legality) is not a goal, but a means of ensuring the certainty and stability of the rule of law, the harmonization of public life. Based on the doctrine of the development of law contra legem, the communication of the post-Soviet judge and legislator should be viewed from the perspective of a three-layered relationship of “subordination – cooperation – opposition”.

Development of criminal procedure law of Armenia out of the law (extra legem) and contrary to the law (contra legem)

The article discusses questions of the development of criminal procedure law contrary to the criminal procedure Code of the Republic of Armenia (Code) (contra legem) of theoretical and practical significance. In the first part of the article, the author presented the content of the concept of «law (Jus) interest», which is used in the Codes of 1998 and 2021. The author considers a value-based approach to the concept of «law (jus) interest» possible only in conditions of a broad law understanding. If any provision of the Code is clearly (blatantly) opposed to law principles expressing the essence of criminal procedure law, then the only addressee of the legislative requirement to be guided by the interest of law is institutionally and functionally independent of the executive branch court (1), which can act contrary to a specific provision of the Code, but in accordance with the principles of law (2). The second part of the article presents the views of the law of Russian processalists A.S. Alexandrov and L.V. Golovko, and also examines whether these scientists consider the development of procedural law permissible contrary to the Code or not. In the third part of the article, it is noted that the judges of the RA, as a rule, avoid directly mentioning in their judicial acts, according to which methodology they carried out the development of law: by an expansive interpretation, by means of extra legem or contra legem law development. The author briefly presents his approaches to the differentiation of law development institutions: spatial interpretation of the law, outside of the law (extra legem) and contrary to the law (contra legem). The article also discusses various examples of the development of criminal procedure law contrary to the Code by the Court of Cassation of the RA.

ԻՐԱՎԱԸՆԿԱԼՈՒՄԸ ԵՎ CONTRA LEGEM ԻՐԱՎՈՒՆՔԻ ԶԱՐԳԱՑՈՒՄԸ / LEGAL UNDERSTANDING AND DEVELOPMENT OF LAW CONTRA LEGEM

The purpose of the work is to present the conditions in which legal understanding the doctrine of the development of law contra legem is possible. The doctrine of the development of law contra legem has the possibility of application in the context of legal relativism, when any type of legal understanding is not absolutized. The doctrine of natural law creates fertile ground for the development of law contrary to the law, and strict legalism excludes any manifestation of the development of law contrary to the law by a judge. The doctrine of the development of law contra legem is considered from the point of view of exclusive and inclusive legal positivism. It is concluded that exclusive legal positivism considers it possible in certain situations that law can develop contrary to the law. In the conditions of post-Soviet traditions, a positivist judge, even if he actually acts contrary to the law, will use the wording “interpretation correcting the law” or “reasonable exception to the law” in order to mask this phenomenon. The doctrine of the development of law contra legem is understood in relative and absolute terms.

Application of Contra Legem Principles in Judicial Rulings on Joint Property Characteristics

This article examines the nuanced application of the contra legem principle by judicial panels in the adjudication of community property cases, particularly in the context of marital property. It highlights the evolving legal landscape and the importance of equitable distribution in contemporary law, underscoring the need to understand judicial reasoning in an era increasingly focused on fairness and gender equality. The study closely examines cases from religious courts, highlighting a trend in which judges have awarded a disproportionate share of community property to wives. This observation raises important questions about the balance between legal norms and the pursuit of equity in family law, and provides a critical lens through which to explore the dynamics of asset distribution and its broader implications in current legal frameworks. The research aims not only to outline judges' distribution formulas, but also to offer insights into why such decisions are increasingly relevant in today's legal discourse, marking a significant shift toward recognizing the complexities of marital property division. This study uses qualitative research methods with a legal descriptive analysis approach. A thorough legal source is case number 413/Pdt.G/2021/PA.Tng and a number of other legal materials related to the author's research topic. The results of the study show that the panel of judges applied the contra legem principle in deciding this matter based on sociological considerations and distributive justice.

Penerapan Asas Contra Legem Perkara Nafkah Iddah Dalam Cerai Talak Pegawai Negeri Sipil: Studi Putusan No.135/Pdt.G/2022/MS.Ttn

Case No.135/Pdt.G/2022/MS/Ttn is a divorce case filed by the husband because it cannot be defended anymore. One of the consequences is that the husband is burdened to pay maintenance, namely madhiyah, iddah, and mut'ah. A wife can apply to the Panel of Judges to request payment of maintenance if the husband does not fulfill his obligation to provide. This research aims to find out the judge's consideration by not giving 1/3 of the salary to the ex-wife who is divorced by a husband who works as a civil servant. Whereas as in Government Regulation No. 8 of 1983 jo Government Regulation No. 45 of 1990 the wife gets 1/3 of the salary of the husband who is a civil servant after the divorce. This research is a type of library research and uses a statutory approach (statue approach) case approach and uses an analytical descriptive method and uses a deductive mindset. Legal materials consist of primary legal materials, namely decision No.135/Pdt.G/2022/MS/Ttn, Marriage Law Number 1 of 1974, Compilation of Islamic Law, Government Regulation No.10 of 1983 jo Government Regulation No. 45 of 1990. The result of this research is that the Judge does not issue 1/3 husband's salary based on Government Regulation No. 8 of 1983 jo Government Regulation No. 45 of 1990 to the divorced ex-wife. With consideration because the Respondent/wife is also a civil servant. The judge prioritizes the principle of justice for the community that is not a civil servant. Keywords: Contra Legem, Civil Servant, Iddah Maintenance.

Theories and limitations of EU-friendly interpretation of the Polish Constitution

The article concerns the issue of theories and limitations of EU-friendly interpretation of the Polish Constitution. It discusses two theories, which are a basis for this method of interpretation of the Constitution: “theory of the multicentricity of legal systems” and “theory of the Europeanisation of the Constitution”. The author notices that both of them focus on legal interpretations but do not satisfactorily explain the basis of the growing impact of EU law on understanding constitutional regulations. They propose some thesis concerning legal interpretations that are implied from observing reality and they attempt to indicate the necessity for EU-friendly interpretations of the Constitution. Thus, it is significant to formulate frames for applying this method of interpretation. The article systematizes limits of EU-friendly interpretation of the Constitution, particularly concentrating on the prohibition of contra legem interpretation, prohibition of interference in the “constitutional identity” and guarantee of a higher standard of system of human rights. There are also considered problems that result from these limitations.

Termination Indemnity is a Universal Way of Cease of Obligations in Russian Civil Law

The obligatory claim is the most important mass property value in contemporary civil turnover. It has unlike choses its intangible nature and special regime of its emergency and termination. Stability of commercial ties is also dependent on universal tool of discontinuance of obligation in line with subsequent agreements or legally designated events. Termination indemnity can be considered as such. In accordance with article 409 of RF Civil Code it can be established by an agreement. Due to authors opinion that should not be interpreted contra legem.

Simplify and Doctrinalise, Historify and Personalise: How Two Less-Known Works of Anti-Islamic Polemic fromc. 1370–1440 Adapted their Sources

Throughout the long history of Christian-Muslim engagement, finding reliable information on Islamic faith has always been a challenge for European Christians, and existing sources were often re-used. This contribution focuses on two little studied works who both use parts of Jacobus de Voragine's Legenda Aurea and Riccoldo da Monte di Croce's Contra legem Saracenorum in order to formulate their own views. The two texts, Peter de Pennis's Tractatus contra Alchoranum and the anonymous Epitome bellorum sacrorum, re-use their pretexts extensively, but they also display very specific strategies in selecting, adapting, and arranging the borrowed passages. Studying these derivate works can therefore help to reconstruct the late medieval image of Muhammad and the Qur’an in Europe and to understand what role such knowledge played in a broader context.

О contra legem толковании норм наследственного и семейного законодательства

The article is devoted to such a kind of interpretation of the norms of hereditary and family legislation as contra legem. The reasons for the existence of this kind of interpretation are indicated. The position on its inadmissibility is analyzed. Examples of contra legem interpretation of the norms of inheritance and family legislation by the Supreme Court of the Russian Federation and lower courts are considered. The question of whether it is possible to put an equal sign between the type of interpretation under consideration and the analogy of the law is investigated. It is concluded that the interpretation of contra legem is rarely used by courts and is based on relevant principles of law.

Acts against Civil Law versus Acts Against Criminal Law Versus Rechtsvinding HogeRaad/Supreme Court Judge

An unlawful act in Dutch is called "onrechmatige daad," and in English, it is called "tort," which means "wrong" (wrong). the word "tort" develops to mean civil "mistake," which does not come from "default." So it is similar to the meaning of "unlawful act," which is called "onrechmatigedaad" in the Dutch legal system. The word "tort" comes from the Latin word "torquere" or "tortus" in language French, like the word "wrong" comes from the French word "wrung," which means "mistake or loss" (injury). The aim research is to know the challenges facing soes and soe subsidiaries toward business tranformation law enforcement and human rights protection (Post Constitutional Court Decision Number 01/PHPU-PRES/XVII/2019).This research is a normative legal research. The type of this research is a Normative Legal Research. The result shows that Memorie van Toelichting Wetboek van Strafrecht voor Nederlandsch -Indie(WVSNI) WederrechTelijkheid was not found. What is meant by the word "law" in the phrase "Against the Law". If referring to the Postulate Contra Legem facit qui id facit quod lex prohibit; in fraudem vero qui, salvis verbis legis, sententiam ejus circumuenit. A person is declared unlawful when the act committed is an act prohibited by law. One of the main elements of a criminal act that is objective is against the law. The Legality Principle of Article 1 paragraph (1) of the Criminal Code. In Dutch, "against the law" is wederrechtelijk (weder: against, against; recht: law). In determining whether an act can be punished, the legislator makes unlawful behavior a written element.

Legal Folklore among the Petty Nobility of the Káli Basin

AbstractIn the Káli Basin in the Balaton Uplands, four of the eight settlements bordering each other (Balatonhenye, Köveskál, Kővágóörs, Monoszló) were inhabited by petty nobles belonging to the gentry, living in curial villages, with a great deal of autonomy, self-governance, and within the framework of their established legal norms and legal customs. They lost most of their privileges in the mid-19th century, but some of their old and new legal customs survived until the mid-20th century. The study reviews part of their extensive living conditions, essentially from the last third of the 18th century. The way of life in this region, known for high-quality grapes and livestock, has changed a lot in the more than 200 years. The study describes each typical component of this life in view of the provisions of established law, customary law, and legal customs. Considering legal distinctions, it addresses secular and ecclesiastical administration, legal relationships regarding vineyards, certain work customs, succession laws, and the vestiges of petty nobility that survived into the 20th century. The role of certain legal customs contrary or complementary to the laws (contra legem, praeter legem) is also mentioned. The study provides a brief overview, or at least a taste, of the special (petty noble) legal folklore of the Káli Basin, which is rich in legal customs.

Development of law contrary to the legal acts (contra legem) in the Republic of Armenia

The article discusses the doctrine of law contra legem and the issues of the boundaries of its practical application. The main objectives of the article are to define the development of law contra legem and to present its differences from the development of law extra legem, to analyze the possibility and permissible limits of applying law enforcement agencies to the doctrine of the development of law contra legem in case of a blatant contradiction of law and law. The author claims that the law enforcement of contra legem and contra legem have similarities, therefore, in order to distinguish them, it is proposed to distinguish between hard and soft types of law enforcement of contra legem. Based on the practice of the Republic of Armenia, the article provides examples of law enforcement contra legem, which are subjected to critical analysis.

РАЗВИТИЕ ПРАВА ВОПРЕКИ ЗАКОНУ (CONTRA LEGEM) НА ОСНОВЕ ПРАВОВОЙ МАКСИМЫ «ЗАКОН НЕ ТРЕБУЕТ НЕВОЗМОЖНОГО»

Introduction: the article is devoted to the issues of releasing a person from liability or from per-forming an obligation contrary to the law on the basis of the legal maxim ‘lex non cogit ad impossibilia’ (the law never requires impossibilities). Purpose: to show that the maxim ‘lex non cogit ad impossibilia’ is applicable not only in private but also in public law. It allows the law enforcer to act contrary to the law in a situation of impossibility. Methods: comparison, description, interpretation; theoretical methods offormal and dialectical logic; special scientific methods such as legal-dogmatic, etc. Results: there are three types of impossibility: physical impossibility, ‘practical’ impossibility, and legal impossibility. There is also a distinction between a priori impossibility and actual impossibility. Classification of these types of impossibility is of practical importance. If thelaw does not establish that impossibility is a legal ground for exemption from a duty or liability, then, in this case, the law enforcer acts contrary to the law. In situations of impossibility, there are two ways of legally justifying the release of a person from per-forming an obligation or from liability contrary to the law: through establishing a ‘reasonable exception’ not provided for by law in a law enforcement act or through using the doctrine of the development of law contrary to the law (contra legem). The most acceptable way to justify the position of releasing a person from the performance of a duty or from liability on the basis of the legal maxim ‘lex non cogit ad impossibilia’ is the mentioned doctrine. In this case, law develops contrary to the law (contra legem), but in accordance with the maxim ‘lex non cogit ad impossibilia’, which makes the actions of the law enforc-er legitimate. Conclusions: the law enforcer, guided by the doctrine of the development of law contra le-gem, may lawfully act contrary to the law on the basis of the legal maxim ‘lex non cogit ad impossibilia’, relieving a person from a duty or liability. The doctrine of actions contrary to the law based on this max-im can create a fertile ground for political authorities to abuse electoral processes; therefore, in order to prevent such abuses, the following conditions must be met: first, ‘practical’ impossibility or legal impos-sibility cannot be a legal ground for postponing (canceling) elections. Secondly, the doctrine of actions against the law based on the ‘lex non cogit ad impossibilia’ can be applied by judicial authorities or under their control.

Sticanje bez osnova - uporednopravni pregled

Unjust enrichment is very highly positio ned as one of the sources of obligations in the Law on Obligations. Research of comparative legal literature (both doctrinal type and judgments of national courts) indicated significant differences in the attitude towards this institute both bet ween the legal systems of continental law and within the corpus of countries in which the so-called common law system is dominant. In the paper, a detailed analysis of both domestic and COM parative legal literature and court practice was carried out. During the research, special emphasis was placed on the legal solutions in force in other, primarily European legal systems. The analysis included both those legal systems (French, German) that have a decisive influence on the civil law codes of other continental law countries, as well as those that are of decisive importance in coun tries characterized by precedential law (Great Britain, United States of America). A re view was al so made of solutions from the Hungarian legal system, whose impact on our law is not ne arly as far-reaching as the aforementioned legal orders, but due to the similarity of the genesis of civil law in our two countries in the last hundred years, they arouse interest. One of the basic differences bet ween continental and commonlaw is reflected in the fact that in the former the central question is whether there was a legal basis for the defendant to gain some benefit, while the latter the focus is on the question of whether the plaintiff has a basis to claim restitution. Consequently, in continental law systems, the court will, first of all, order the restitution of what the defendant unjustly acquired, while in "common law" systems the plaintiff has the obligation to first prove that he has a reliable basis for restitution. In addition to recognizing the differences between the two groups of systems, through analysis we also come to distinctions within the groups themselves. For example, unlike French law, German law, albeit with certain difficulties, resolves the problem of unjust enrichment due to the actions of a third party. According to our ZOO, when a part of one person's property has been transferred in any way to the property of another person, and that transfer has no basis in a legal transaction or in the law, the acquirer is obliged to return it, and when this is not possible - to compensate the value of the benefits achieved. Obligation to return, i.e. compensation of value also occurs when something is received with regard to a basis that was not realized or that later fell away. The obligation to return is not subject to those goods that were given in the name of fulfilling some natural obligation or some moral or social duty, amounts that were paid even though the payer knew that he was not obliged to make the payment, as well as funds that, without a legal basis, were paid in the name of compensation for damages due to bodily injury, health impairment or death, if the payment was made to a bona fide recipient. The review of domestic judicial practice shed light on a wide range of situations in which legally unjustified enrichment can occur, i.e. acquisition without grounds. Although we are talking about an institution that has long been present as a source of obligations in the Law on Obligations, certain judgments, which are contra legem, show that in connection with this institution there are, still, numerous doubts.

Interpretation of legal facts in court in the course of a labour dispute

The article is devoted to the study of the specifics of views on judicial law-making at the level of interpretation of legal facts in the course of a labour dispute. The author considers the prerequisites for the formation of these ideas, reveals their content, notes the debatable aspects of their essence, shows the theoretical and practical significance of the methodology of judicial law-making. Based on the analysis, it is concluded that the actual recognition of the law-making monopoly of the court is accompanied in the institutional theory of law by attempts to substantiate its realism and rational limitation, focusing on the importance of the court decision as the responsibility of the individual choice of the law enforcement officer, a tool to fill gaps, situational approach and a special stage of law and order. Theoretical conclusions are supported by examples from the practice of courts in whose decisions it is possible to trace the use of a balanced model. It is shown how, due to the effectiveness of interpretation, including contra legem, judicial practice has an impact on the movement of the entire legal system, on the entire process of implementing labour legislation during the movement of a dispute. The author proceeds from the fact that judicial practice should be considered in two aspects — as an element of the legal system and as an activity for the administration of justice. In these manifestations, judicial practice is included in the mechanism of legal assignment, establishing a connection between a legal fact and legal consequences. However, with all the importance of judicial practice, its legal significance still remains not fully investigated, in particular, the concept and meaning of legal provisions developed by the court and formalized in judicial acts are not defined.

Efficiency contra legem? Remarks on the Advocate General’s Opinion Delivered on 22 June 2023 in Case C-281/22 G.K. and Others (Parquet européen)

Efficiency contra legem? Remarks on the Advocate General’s Opinion Delivered on 22 June 2023 in Case C-281/22 G.K. and Others (Parquet européen)