European Legal Systems Research Articles

ORTHODOX BROTHERHOODS IN THE KIEV METROPOLIA IN THE SECOND HALF OF THE XVI CENTURY: BETWEEN SECULAR LEGISLATION AND CHURCH LAW

The present study is devoted to the analysis of the legal background of the laics associations emergence and activity in the Kiev mitropolia in the second half of the XVI century, including church, parish and “honey” brotherhoods, guilds and collective patrons of orthodox churches. The aim of the work is to assess the nature and degree of secular and ecclesiastical legislation influence on the emergence and methods of legitimization of Orthodox religious associations in the second half of the XVI century. The church brotherhoods of the end of the XVI century were the result of the evolution of traditional territorial unions that arose on the Ukrainian-Belarusian lands even before the adoption of Christianity. The factors of the evolution were the spread and deepening of Christian practices, and later the entry of orthodox lands into the catholic Polish-Lithuanian Commonwealth. The Western European legal system assumed the written consolidation of legal customs and legal facts. In the contact orthodox-catholic zone there were closely related catholic professional and religious unions of laypeople, whose statutory documents became models for copying. Finally, the third factor was the influence of the Reformation and Counter-Reformation, which provoked an increase in interest in the affairs of religion and the church among the orthodox laics and led to the emergence of church confraternities and confraternal movement. At the same time, the confraternal movement is a purely Orthodox phenomenon. Assessing the discrepancies between the church law norms and the confraternal ideology provisions, it should be emphasized that the confraternities rejected the norms that had the status of church custom, and in some provisions turned out to be closer to the canonical norm than the contemporary practice of the church.

International Jurisdiction at the Place of Performance of a Contract in Civil (EU) Law: A Jurisdiction Rule Stuck Between the Common Law Perspective and Conflict of Laws Terminology

The place of performance rule is characterized by its belonging to the European (civil law) legal system. The rule has preserved its existence as a classic rule from Roman law to the present day regarding which local courts will hear the disputes arising from the contracts. Problems related to the interpretation of the place of performance rule, which is also taken as a basis of international jurisdiction, especially in the practice of European Union (EU) law, have emerged since the 1970s; the EU Court of Justice has held that the rule should point to the most closely connected court under the effect of a common law perspective. The closest connection test, which cannot only be seen as a common law effect, also bears traces of the conflict of laws terminology. In this article, it is found that the place of performance rule does not have the function of indicating the most closely connected court, at least in the context of civil law; on the contrary, the rule should be interpreted from the perspective of legal certainty and predictability.

Directions of harmonization of the main principles of domestic administrative and legal science with European integration requirements

It has been noted that today the process of integration of national legislation into the unified European legal system is of unprecedented importance for many spheres of Ukrainian society, and most of all for the legislative basis that regulates legal relations between the state in general and society and citizens in particular. It has been emphasized that for the above reason, the process of European integration of national legislation has the most significant impact on administrative and legal science, since this branch of law is the most important regulator of social relations in the field of public administration, specifies and regulates the rules of operation, organization of activities and legal status of public authorities, and also establishes the rights and obligations of citizens and public organizations in the specified sphere.
 It has been established that an important role in the functioning of all legal branches is played by the basic, objectively determined foundations on which the activities of public authorities are built. At the same time, their functioning should be included in the system of legal acts that determine the regulatory limits of administrative law. It has been emphasized that the basis of research in the specified field of law should be the actualization and systematization of the above-mentioned principles.
 It has been summarized that the directions of adaptation and harmonization of the main provisions of the national administrative and legal science with the European integration requirements set by the partner countries to Ukraine as a candidate for accession to the European Union should, first of all, be implemented through the prism of revision of the scientific paradigm of the basic principles of administrative law in general and public administration in particular. The above-mentioned approaches are aimed at demonstrating to the world community the steady rise of Ukraine as a legal, democratic state, ensuring effective cooperation of state institutions and civil society, guaranteeing commitment to the principles of the rule of law, as well as maintaining the proper level of functioning of the law enforcement mechanism of our country.

Role of medieval universities in reception of Roman law

Objective: to comprehensively study the reception of Roman law in Europe in the 11th – 17th centuries as the key element of the continental legal system formation; to consider the reception process through the study of the activities of medieval universities, which had a decisive influence on the borrowing of Roman legal norms and adapting them to European realities, and on the formation of the continental system of law.Methods: the article uses the main general scientific research methods: induction, extrapolation, analysis and synthesis, and also uses a comparative method of scientific research that allows tracing changes in the norms of Roman law during its reception.Results: it is difficult to overestimate the importance of Roman law reception for the European legal order and legal culture. As a result of a long process of analyzing, borrowing and adapting the Roman legal norms, the continental law system developed with the legal traditions and institutions forming it. It would not be an exaggeration to say that the full-fledged perception and qualitative adaptation of Roman law in the medieval states were possible only due to higher educational institutions. University professors disclosed the meaning of Roman legal norms in research works, taught students to apply these norms in the social conditions of that period, analyzed judicial practice, and contributed to the evolutionary changes of law that had arisen in the Roman Empire. In general, thanks to their activities, the absolute authority of Roman law was confirmed, and the attitude towards jurisprudence changed – law was no longer perceived as a limited set of casuistic laws adopted by the state, but as science and art.Scientific novelty: the article for the first time examines the influence of the Roman law reception, which was carried out by European universities, on the continental legal system formation. The evolutionary stages of the Roman law reception are considered: from the scholastic interpretation of the Code of Justinian by glossators to the activities of humanists. The opinion is argued that the transfer of cases to the conclusion (the Aktenversendung Institute), the development of the school of glossators, postglossators and humanists directly shaped the trends, determined the rules and system of the Roman private law institutions borrowing and adaptation.Practical significance: the main provisions and conclusions of the article can be used in scientific and pedagogical activities when considering issues related to the study of the Roman law reception and the trends in the European legal systems development.

Tort liability for a failure to render assistance in a comparative perspective

The article looks at the problem of tort liability for a failure to render assistance and compares the legal approaches to this issue. There are no European legal systems that regulate such a duty to render assistance directly in the provisions of private law. This is generally because most of them (with the exception of common law countries) have criminal law provisions that penalize a failure to rescue another person in need of assistance. This raises the question of the impact of criminal law on liability in private law. The paper discusses this issue in detail, accepting the opinion that, in those legal systems where a failure to render assistance is punishable as a criminal offence, the provisions of criminal law should determine the conditions and prerequisites for rendering assistance in private law and establish the boundaries of liability in tort law. In addition, the article aims to present universal guidelines that might be useful for courts in order to establish tort liability in other cases of a failure to render assistance.

The gay cake controversy in the United Kingdom and Italian inertia

In Lee v. United Kingdom, the European Court of Human Rights left gay people partially unprotected against discrimination in commercial transactions in the United Kingdom and, by analogy, in other legal systems, such as the Italian system, where such protection is absent. In this article, it will be argued that the lack of substantive engagement by the European Court of Human Rights should be considered a missed opportunity for the development of European legal systems that do not grant full anti-discrimination protection to gay people.

REGUŁA ZARACHOWANIA ŚWIADCZENIA Z ART. 451 § 3 KODEKSU CYWILNEGO A ROSZCZENIE PRZEDAWNIONE

This article deals with the question whether it is possible in the process of the imputation of payment to take into account the time-barred debts. The aim is to contribute to the Polish legal discussion, which is basically limited to dogmatic considerations, by formulating a solution based on historical and comparative legal arguments. Therefore, the article describes the origins of the rule of imputation and the purpose of this institution, with particular focus on the Roman law and the views of the legal doctrine and jurisprudence in the selected European legal systems.

Oral Proceedings During the Preparatory Stage

This article argues that the preparatory stage in the main hearing model of civil proceedings still represents a significant knowledge gap. It endeavours to conceptualise the potential functions of the preparatory stage, and in particular preparatory hearings, and interlinkages between these functions and basic tenets of the main hearing model of civil proceedings, such as a concentrated main hearing, cooperation, proportionality and early resolution. It puts forth a user-centric view of justice, which emphasises informed decision-making that balances formal rules of justice with the needs and interests of the parties and the costs and risks of court proceedings. In this view, court proceedings should, in addition to serving substantive justice, also promote procedural justice, and particularly real participation of the parties themselves, not just their legal counsel. This article employs a European perspective using the ELI/UNIDROIT Model European Rules of Civil Procedure as a proxy of the state-of-the art of the main hearing model, as it is present in European legal systems.

“HAMLET” TRAGEDIYASI VA VILYAM SHEKSPIRNING HUQUQIY QARASHLARI

In education, there is an opportunity to study, analyze and draw conclusions on economic, social, political, and legal problems in human society through a single source. This source can be a work of art that discusses the realities of life. Giving wings to thinking and imagination, models of artistic creativity serve to correct many problems of society. In this sense, it is essential in legal education to study and teach works of art as an object of a legal issue. One such work is the tragedy “Hamlet” by the English playwright William Shakespeare. The image, fate, experiences, and actions of Hamlet opened the field for heated debates and sharp reflections not only among literary critics but also among lawyers. the European legal system in world jurisprudence is analyzed based on legal problems in the works of Shakespeare, in particular, in the tragedy “Hamlet”. The article describes Shakespeare’s legal views on the basis of “Hamlet”’s analysis. In particular, the main reasons for the decline of a society whose current laws do not correspond to the original norms created for humanity, a state ruled by selfishness, hypocrisy, and cowardice, and a criminal government, i.e. an individual, state, and society, are analyzed. Shakespeare’s attitude to the legal system of his day has been examined by evaluating Prince Hamlet’s efforts to defend his rights.

ЛІНГВІСТИЧНІ АСПЕКТИ ЮРИДИЧНОЇ ТЕРМІНОЛОГІЇ СУЧАСНОГО ЗАКОНОДАВСТВА

The article examines the linguistic aspects of legal terminology of modern legislation. The concepts, main features and functions of legal terms are defined. The peculiarities of the functioning of legislative terms are revealed. The meaning of definitions in legislative acts is analyzed. It is established that definiteness is one of the main features and characteristics of a legal term. Legislative definitions must be unambiguous, clear, concise, logically and linguistically correct, general and cover the most essential characteristics of the subject or phenomenon. Linguistic problems related to the use of legal terminology in the texts of normative legal acts are singled out. Emphasis is placed on the adaptation of modern national legislation to EU law. Among the main linguistic issues of legal terminology are the problems of legal translation of legislative terms; unmotivated use of foreign borrowings in the translation of EU legislation; inconsistency of legal terms with the norms of the Ukrainian literary language, unmotivated ways of word formation, lack of uniformity of terms used in the original and translation of one of the EU legislative acts, homonymy and polysemy of terms and their ambiguous application in Ukrainian and EU legislation. It is emphasized that the adequacy of the translation of legal terminology is extremely important for the legal function of the regulatory function. The rules of use of foreign terms in normative-legal acts are offered. The peculiarities of the role of legal terminology in the functioning of law are revealed. It is concluded that the unification, systematization and streamlining of legal terminology will facilitate the process of integration of domestic legislation into the European legal system.

An Examination of the Liability for Compensation for the Breach of Choice of Court Agreements: In the Light of the German Federal Court Decision of 17.10.2019

In the case subject to the decision of the German Federal Court (BGH) dated 17.10.2019, there was an exclusive choice of court agreement in favor of the Bonn courts, because of one of the parties filed a lawsuit in the US courts, the other party had to pay high amounts of litigation costs and attorney fees. In the case, the BGH accepted that the international choice of court agreement was violated, and it was decided that compensation be paid in accordance with the provisions of the law of obligations. This decision could set a precedent for the states included in the Continental European legal system. The reasonings accepted in the decision are of a nature that can also be asserted in terms of Turkish law. With the exclusive choice of court agreement, the parties are obliged to file a lawsuit in the chosen court (prorogation) and not to file a lawsuit in other non-chosen state courts (derogation). Although the dominant approach was accepting of the legal nature of the international choice of court agreement as a procedural law contract in the past, the new jurisprudence confirmed that the choice of court agreement also has a substantive law character. Article 112 of the TCO will have to be applied to the compensation liability under Turkish law in case of a breach of the choice of court agreement. The conditions sought in article 112 of the TCO are as follows: a breach of an obligation, occurrence of damage, existence of a fault and the presence of a causal link. These elements must be present for the breach of the choice of court agreement to lead to a liability for compensation.

Perbandingan Konsep Misbruik Van Omstandigheden dan Undue Influence Dalam Kaitannya Dengan Pembentukan Klausula Baku Untuk Kredit Perbankan

Misuse of circumstances in business practices in Indonesia is part of legal problems that often cause disputes between parties in business activities. Misuse of circumstances that generally occurs due to an imbalance in position between one party and another also occurs in the making of business agreements, especially in banking credit. The development of the concept of abuse of circumstances which initially developed in the Anglosaxon legal system which is known as undue influence, in its development later it was also known in the continental European legal system as misbruik van omstandigheden. In this legal research using normative juridical research methods, it will be analyzed regarding to the development of the concept of abuse of circumstances in the two existing legal systems in order to formulate the concept of abuse of circumstances that is in accordance with the times in the practice of forming standard clauses for bank credit. The results of this research will also compare the forms of legal protection for the parties in business practices against the potential abuse of circumstances that can occur in the formation of credit agreements.

Perbandingan Konsep Misbruik Van Omstandigheden dan Undue Influence Dalam Kaitannya Dengan Pembentukan Klausula Baku Untuk Kredit Perbankan

Misuse of circumstances in business practices in Indonesia is part of legal problems that often cause disputes between parties in business activities. Misuse of circumstances that generally occurs due to an imbalance in position between one party and another also occurs in the making of business agreements, especially in banking credit. The development of the concept of abuse of circumstances which initially developed in the Anglosaxon legal system which is known as undue influence, in its development later it was also known in the continental European legal system as misbruik van omstandigheden. In this legal research using normative juridical research methods, it will be analyzed regarding to the development of the concept of abuse of circumstances in the two existing legal systems in order to formulate the concept of abuse of circumstances that is in accordance with the times in the practice of forming standard clauses for bank credit. The results of this research will also compare the forms of legal protection for the parties in business practices against the potential abuse of circumstances that can occur in the formation of credit agreements.

Minority Shareholders’ Right to Request the Postponement of General Meetings of Joint Stock Companies in Turkish Law

The multi-level protection offered to the right to property is an element of the current Italian and European legal system. Reading Article 8 (respect to private and family life) and Article 1, paragraph 1 (property protection) of the European Convention on Human Rights (hereinafter ECHR) it is possible to state that the protection of someone’s property has gone beyond the physical object. This interpretation, which derives from an approach which underlines the social function of property, has been strengthened by the ECHR that, during the last 20 years, has extended the concept of property. Thanks to it, it is possible to affirm the existence of a right to remain in one’s own land before, during and after an emergency, caused by a natural, health or man-made disaster. Also, trough the reading of Articles 41, 42 and 44 of the Italian Constitution it is possible to affirm the existence of this right within the Italian Fundamental Charter. In light of the above evolutions of the jurisprudence and of the interpretation of the concept of property within the Italian Constitution, this article analyses how this principle may apply also to people affected by natural hazards. Keywords: Property right; Right to remain in your homeland; Italian constitution; Natural disasters; European Court of Human Rights; Court of Justice of the European Union; European Convention Human Rights

‘The Right to Remain and Produce in your Homeland’ in Light of Article 8 of the European Convention on Human Rights, The European Court of Human Rights Case Law and the Italian Constitution

The multi-level protection offered to the right to property is an element of the current Italian and European legal system. Reading Article 8 (respect to private and family life) and Article 1, paragraph 1 (property protection) of the European Convention on Human Rights (hereinafter ECHR) it is possible to state that the protection of someone’s property has gone beyond the physical object. This interpretation, which derives from an approach which underlines the social function of property, has been strengthened by the ECHR that, during the last 20 years, has extended the concept of property. Thanks to it, it is possible to affirm the existence of a right to remain in one’s own land before, during and after an emergency, caused by a natural, health or man-made disaster. Also, trough the reading of Articles 41, 42 and 44 of the Italian Constitution it is possible to affirm the existence of this right within the Italian Fundamental Charter. In light of the above evolutions of the jurisprudence and of the interpretation of the concept of property within the Italian Constitution, this article analyses how this principle may apply also to people affected by natural hazards. Keywords: Property right; Right to remain in your homeland; Italian constitution; Natural disasters; European Court of Human Rights; Court of Justice of the European Union; European Convention Human Rights

Application of The Concept of Justice in the Perspective of Pancasila State Law

This research is an empirical normative juridical research using a statute approach. This research is carried out by examining all laws related to the legal issue being studied. This research focuses on research that views law as a complete system that includes a set of legal principles, legal norms, and legal rules (written or unwritten). From the research, it was found that the application of the concept of justice in criminal law enforcement has not been implemented perfectly due to differences in the interpretation of the rule of law in its implementation and is influenced by the legal system adopted in Indonesia. Indonesia adheres to the Continental European legal system which does not recognize precedent decisions. Meanwhile, the embodiment of law enforcement when viewed from the perspective of the state of Pancasila law has not been fully implemented in the implementation in the field. This is a matter of debate among jurists. The law does not only refer to the principle of legality but also to the benefits of a sense of justice in the order of people's lives.

P-347 Gamete donation in Italy: Ethical and legal consideration on the lack of specific regulation

Abstract Study question Given cross border reproductive care, is the lack of specific regulation on egg and sperm donation in Italy ethically acceptable nowadays? Summary answer Nowadays Italy has no national clear legal frame for donors, recipients, and donor-conceived persons. This setting hinders an ethical protection of competing interests and rights. What is known already The Italian Law on ART (40/2004) has undergone major changes; after sperm and egg donation ban lift, the Italian law n. 40 has not been replaced. Gamete donation is therefore allowed, but without specific national regulation. Moreover, given the lack of public information on donation and consequently the shortage of donors, many people still opt for CBRC. In this context, the only legal certainty is that no filiation link arises between donor and donor-conceived children. Political and legal debate on the right to know one's origins is missing. Legally speaking, gamete donation in Italy is actually in half-light. Study design, size, duration -- -- Participants/materials, setting, methods When it comes to ART, national legal frame has to be considered in a comparative view, since CBRC is a fact. Therefore, questioning the lack of specific regulation on egg and sperm donation in Italy has required a comparative analysis with other European legal systems, such as France, Spain and United Kingdom. Main results and the role of chance -- -- Limitations, reasons for caution When advocating a legal change, it should be considered the surrounding political environment; among Italian institutions a growing mistrust of science might be spotted nowadays. This, combined with the very well know Catholic heritage, is undoubtedly a reason for caution Wider implications of the findings A legal change in Italy, backed by a promotion of public information on gamete donation, might entail also an increase in the number of donors and enabling many people to avoid CBRC. The rights of donors, recipients and donor-conceived persons would be protected and more patients could be treated. Trial registration number not applicable

Religion – a Significant Factor in Law-Making and Law Enforcement Processes

The relevance of this study is conditioned upon the fact that scientific papers have almost no attempts to theoretically develop the correlation between religion and law. Legal scholars ignore the forms of influence of religion on law-making and law enforcement activities. Available research in this area is often fragmentary. The purpose of this study was to prove the relationship between religion and law based on modern legal understanding of the main principles, to clarify the role of religion in the legal sphere. The philosophical and methodological framework of this study involved the principle of pluralism in the choice of methodological approaches, methods, and techniques because they form the foundation of the scientific and cognitive process, ensure unity and purposefulness in the study of common features of religion and law in the law-making and law enforcement procedure, such as ritualism, tradition, authority, and universality. It is argued that in modern society, religious values, albeit losing their former meaning of the”sacred image” of the world, and even if Christian principles do not have a direct impact on the legal system, still play a considerable role in legal life because European legal culture was created under the influence of Christianity, a Christian view of the world. Modern European legal systems operate in a social system that has absorbed Christian religious values. This study is aimed at further development of the general theory of law, expanding the knowledge about the correlation between religion and law in the system of social regulation, improvement of legislation. The results obtained can be used in the field of law-making and law enforcement, for the preparation of textbooks, manuals, for lawyers, philosophers, sociologists, and all those who are not indifferent to the development of legal awareness.

Gender medicine as a tool for implementing the right to health.

The COVID-19 pandemic has increased the interest in the right to health, which represents a relatively new concept brought about by progress in medical science and the evolution of societies. The Italian Constitution, in article 32, states the right to health without specifications about the parameter of sex, assuming that this fundamental right is property of women and men indiscriminately. To assess whether the right to health has actually been achieved in an equal way from the standpoint of sex, and whether a hypothetically "neutral" approach is actually convincing and profitable in this context. This paper analyzes the topic of gender medicine from a scientific and legal perspective, based on current medical literature and its implementation in the Italian and European legal systems. Gender medicine is the only credible response to sex- and gender-based inequalities affecting the right to health, as it provides tools to address persisting inequalities in prevention and treatment, thus pursuing health for all: women and men. The importance of this path was underlined also by the Summit and the Rome Declaration of 21 May 2021, acknowledging that the topic of sex and gender can no longer be overlooked in focusing a correct and equal healthcare approach.

A research agenda for trust and distrust in a multilevel judicial system

While public trust in the judicial system has been extensively explored in the US, this has been less common in Europe. The purpose of this paper is therefore to launch a research agenda on trust in courts. This is based on an overview of the empirical studies on trust/distrust in courts in Europe, which are assessed critically in light of the trust literature. We connect the concept of multilevel governance in which the EU operates to the concept of multilevel trust, which concerns the interrelations between interpersonal trust, interorganizational trust and system trust. Furthermore, we add structure to the existing literature on trust in and within courts in Europe by categorizing it into two main categories: (i) studies that focus on trust in courts within one (national or European) legal system and (ii) those that explore the interaction of trust in and between courts at different levels of governance (multilevel governance). We further examine whether different relational and institutional aspects of trust in courts, their drivers, dynamics and effect, as well as the recent trend of specialization in court systems have been sufficiently covered in the literature.