General Clauses Research Articles

Intelligent identification of risks in construction contract clauses based on semantic reasoning

Purpose The number of construction dispute cases has surged in recent years. The effective exploration and management of risks associated with construction contracts helps to directly enhance the overall project performance. The existing approaches to identify the risks associated with construction project contracts have a heavy reliance on manual review techniques, which are inefficient and highly restricted by personnel experience. The existing intelligent approaches only work for the contract query and storage. Hence, it is necessary to improve the intelligence level for contract risk management. This study aims to propose a novel method for the intelligent identification of risks in construction contract clauses based on natural language processing.Design/methodology/approach This proposed method can formalize the linguistic logic and semantic information of contract clauses into multiple triples and transform the structural processing results of general clauses in a construction contract into rights and interests rules for risk review. In addition, the core semantic information of special clauses in a construction contract, rights and interests rules are used for semantic conflict detection. Finally, this study achieves the intelligent risk identification of construction contract clauses.Findings The method is verified by selecting several construction contracts that had been applied in engineering contracting as a corpus. The results showed a high level of accuracy and applicability of the proposed method.Originality/value This novel method can identify the risks in contract clauses with complex syntactic structures and realize rule extension according to the semantic relation network of the ontology. It can support efficient contract review and assist the decision-making process in contract risk management.

행정기본법 및 기타 법령상 이의신청제도와 그 개선방향

As enforcement of General Act on Public Administration, its Art.36 Civil Objection to Administrative Disposition System has important in Korean Legal System. In consequence of comparative legal research, it become clear that many countries - Germany, France and Dutch- have similar scheme for Civil Objection to Administrative Disposition. However in Korean legal System, Systemic Contradiction between provision for Civil Objection to Administrative Disposition should be resolved. Not only General Act on Public Administration, but also Civil Petitions Treatment Act has general clause for Civil Objection to Administrative Disposition System. Nonetheless provisions for Civil Objection to Administrative Disposition of two Acts is discrepant. Priority order in application of laws, Extension effect of period for filing lawsuit are still debatable. It’s even more confusing in legal terminology and provision of Other Law and Regulations. These require a solution which is a clarifying statutory amendment.

Academic Spin-offs through the Lens of Pragmatism and Mixed Methods

In conclusion, this paper explores the intricate dynamics of improper omission as an amplifying device within the Colombian legal context. A detailed analysis has demonstrated how improper omission allows the imputation and punishment of individuals who, without fulfilling the typical description of conduct, incur criminal liability when they abandon their role as guarantors in the absence of a nexus of avoidability. This occurs when they fail to prevent the typical results that, in the context of legal assets in their charge, the perpetrator can update their conduct, but refuses to do so without sufficient justification. It is crucial to differentiate between the general clause of equivalence of improper omission and the special clause of equivalence. While the former pertains to all legal assets, the latter is limited to specific legal assets mentioned in Article 25 of the Criminal Code. This distinction is vital to guarantee coherence and proportionality in the application of criminal law, thus preventing potential arbitrariness and violations of fundamental rights while enabling effective protection of positive duties of protection of legal rights with criminal protection. In particular, the issue of extending the position of guarantor to the protection of legal interests beyond those contemplated in the first paragraph of Article 25 of the Criminal Code has been addressed. By means of practical examples and analyses of case law, it has been demonstrated how improper omission can be constituted in a variety of contexts, including situations in which typical behaviors may arise as a result of the negligence or eventual inaction of an individual, whereby the individual in question removes himself from the protection of the legal assets in his control, which he has assumed voluntarily, so that an omission is constituted without sufficient justification. In conclusion, the clarification of the concepts presented here will contribute to the ongoing academic and legal discourse on improper omission in Colombia. It will provide a comprehensive and nuanced understanding of its application and implications within the country's legal framework. Through rigorous and thoughtful analysis, we encourage continued exploration and debate on this complex issue, with the aim of enhancing and strengthening the administration of justice in Colombia.

The general clause "interest of service" as one of the grounds for optional dismissal from service on the example of a police officer - selected theoretical and case law aspects

The principles of employing Police officers are regulated by the Act of April 6, 1990 on the Police, professional pragmatics of an autonomous nature. In the discussed pragmatics, the legislator divided the exhaustive catalog of reasons for dismissal from service into two reasons - obligatory and optional. The impetus for undertaking the research issues covered in this article was the construction of one of the reasons for optional dismissal from service. Namely, in accordance with Art. 41 section 2 point 5 of the Police Act, a police officer may be dismissed from service when an important interest of the service requires it. The construction of the service's interest is nothing more than the normative construction of a general clause, which by its nature is unspecified. Therefore, the closed catalog of grounds for dismissal from service remains open in this respect. The legislator deliberately and consciously uses this construction to make the generally closed catalog of reasons for dismissal from service more flexible. It should be stated, however, that although the Police authority is provided with a large area of freedom in the process of applying the law, the clause in question is not the basis for the authority to make arbitrary and instrumental assessments. The service interest clause, despite its undefined nature, refers to extra-legal criteria with a semantic context defined by the name of the criterion.

General Clauses and Interpretation

General Clauses and Interpretation

General Clauses for SAT-Based Proof Search in Intuitionistic Propositional Logic

General Clauses for SAT-Based Proof Search in Intuitionistic Propositional Logic

Withdrawal from a Human Rights Treaty and Peremptory Norms of International Law: The case of “Belarus 2020”

Abstract The article analyzes the general concept of withdrawal from human rights treaties and addresses a specific case of withdrawal from the Optional Protocol to the International Covenant on Civil and Political Rights. The article argues that the human rights regime, due to its axiological nature, the non-reciprocal character of treaty parties’ relations, and the final beneficiaries´ expectations, needs lex specialis provisions on the withdrawal matters. Moreover, the results of analyses of the United Nations’ bodies show that the general clause on withdrawal being requested by a non-democratic state may lead to the denial of access to international justice for indivi duals and jeopardize the entire human rights protection system. Nowadays, however, the Vienna Convention on the Law of Treaties does not satisfy the needs of the human rights regime. The United Nations and its mandate holders are recommended to request an advisory opinion of the International Court of Justice to clarify the compliance of the termination clause of the human rights treaties with the common values of the international society of states as a whole and the principles of the United Nations.

A rágalmazás „tényállása” az Ószövetségben és a rabbinikus jogtudományban

The Law of Moses, the Torah, does not explicitly divide the crimes that can be committed in the field of communication into criminal and civil categories, contrary to the legal system of modern and postmodern European states. In the theocratic legal system of the ancient state of Israel, where all sins against human beings were first and foremost offences against God (i.e., being a holy nation, they were also a matter of holiness), this distinction was at most separable in the way in which cases were dealt with, and in the fact that prosecution of certain crimes was mandatory, while prosecution of others was, in modern terms, on the basis of private accusation. The Ten Commandments forbid two acts of communication: the vain (empty, meaningless, false, blasphemous, etc.) use of the name of God (Yhwh), and, in human relations, bearing false witness against someone. In my study, I intend to give an overview of the latter element of the Ten Commandments as a general clause, using the Torah and the sources of rabbinic jurisprudence and relevant literature in a historical context.

Configuration of the general clause of sources of law in Colombia: problems and challenges from the complexity of the regulatory system and the means of control of the activity of individuals and authorities

El sistema normativo en Colombia y su problemática en la aplicación por cualquier sujeto de derechos, puede ser comprendido desde un contexto de crisis o de complejidad, dadas las múltiples tipologías de fuentes que necesariamente interactúan y principalmente, a causa de la jurisprudencia, donde permanentemente se encuentra en tensión además de la concreción de esa interacción, entre otros, el derecho a la igualdad y los principios de seguridad jurídica y de previsibilidad del derecho, los cuales resultan estructurales para cualquier sociedad políticamente organizada que se declare constitucionalmente como Estado Social de Derecho. A partir de esta crisis y complejidad y con fines de sistematización del orden jurídico, se propone en prospectiva la que sería una cláusula general de fuentes del derecho para Colombia.

The Unidroit Principles and the inflexibility of code as law: reconciling smart contracts with general clauses

Abstract Smart contracts are a set of digital technologies enabling the automation of certain aspects of contractual performance and/or remedies. These technologies follow a deterministic, if/then logic that is often difficult to reconcile with the inherent malleability of contract law. This article scrutinizes this tension, with specific reference to the International Institute for the Unification of Private Law’s (Unidroit) Principles of International Commercial Contracts (PICC). The article argues that some recurring PICC general clauses (such as good faith and reasonableness) play a crucial role in ensuring fairness. Therefore, their operation should not be constrained by smart contracts. To the contrary, the parties to an international commercial contract should use technology to empower arbitrators to make full use of the flexibility inherent to the PICC and issue (partially) self-enforcing awards.

Protection against unfair competition in the European Union: from divergent national approaches to harmonized rules on search result rankings, influencers and greenwashing

Abstract This article provides an overview of the complex interplay between harmonized rules of unfair competition law at EU level and national approaches in the Member States. It discusses case law, sheds light on the objectives underlying protection against unfair competition and describes intersections with intellectual property rights. The analysis addresses general clauses that allow unfair competition law in the EU to keep pace with constantly changing marketing practices. It discusses the concept of confusion from a comparative trademark and unfair competition law perspective. Moreover, misleading practices, discrediting and denigrating allegations, slavish imitation, unfair free-riding, trade secret rules and transparency obligations will be explored. The analysis includes recent extensions of the canon of unfair competition rules, in particular in the field of product rankings within search results, influencer marketing and greenwashing. Particular attention will also be devoted to the growing body of transparency obligations in online marketing contexts, including obligations in the area of targeted behavioural advertising that follow from the Digital Services Act.

Illegal contract as a general clause - European trends and new Hungarian judicial practice

The invalidity of a contract is a sanction of civil law. In a dispute, the purpose of the law, its effect and its application must be applied together to the contract in conflict with the law. The means of doing so are judicial interpretation and the application of the general clause. An illegal contract may cover several areas: contracts contrary to public policy, a rule of law, morality or fundamental principles. In such a complex legal environment, an important question is which rule is breached and which results in the invalidity of the contract. The relationship between civil law and other rules is of particular importance in the context of the use of AI, where there are a number of technical obligations for the contracting party or administrative rules governing the use of AI. In the digital environment, many sectoral rules impose prohibitions, many norms define specific requirements as well. The study examines the new paradigm of the Hungarian Civil Code of illegal contracts and focuses the judicial practice of the general clause of illegality.

Responsabilidade por produtos defeituosos na era da IA — Proposta de uma solução de “duas vias”

In 1985 the Council of the European Communities adopted the Directive 85/374/EEC to harmonise product liability within Europe. In 2024, this directive will most likely be replaced by a new Product Liability Directive designed to reflect the technical developments of the last 40 years. The new Directive contains some significant changes. However, regarding the overarching concept of product liability, it remains faithful to the old Directive: Manufacturers are still not liable for all damage caused by their products, but only for damage caused by a “defect” in a product. This defect-based approach is problematic. When it comes to new digital technologies, especially Artificial Intelligence, it is difficult for courts to assess a product’s defectiveness. Moreover, in many cases, the defect-based approach is insufficient to provide liability solutions that are both efficient and fair. This paper seeks to lay the foundations for a more comprehensive reform: The current product liability for defective products should be complemented by a second “track” of product liability. In the case of particularly dangerous products, such as autonomous cars and medical devices, manufacturers should compensate victims regardless of whether their products are defective or not. Such “truly” strict liability could partially relieve courts of the burden of assessing a product’s defectiveness and would lead to fair and efficient prevention and distribution of damages. Damage costs would be allocated to manufacturers as the cheapest cost avoiders. In addition, the advantages and disadvantages of dangerous products would be more evenly distributed among manufacturers, users, consumers and “innocent bystanders”. However, to avoid over-deterrence and stifling of innovations strict liability should be limited to particularly dangerous products. Legislators should introduce a general clause of truly strict liability, which would allow courts to assess whether a product is particularly dangerous or not. A general clause is preferable to a list of particularly dangerous products because it would provide for the flexibility needed to deal with rapidly developing technologies.

The Legitimation by Procedure and Concretion of General Clauses in Private Law: An Examination through the Lens of Niklas Luhmann’s Theory and the Dilemmas Surrounding Transparent Decision-Making in the Pursuit of Communicative Coherence

The Legitimation by Procedure and Concretion of General Clauses in Private Law: An Examination through the Lens of Niklas Luhmann’s Theory and the Dilemmas Surrounding Transparent Decision-Making in the Pursuit of Communicative Coherence

Protection of data under unfair competition law in Japan and Korea—a case of asymmetric convergence?

Abstract This article explores the question of overlap in unfair competition law in Japan and Korea and discusses whether the introduction of a general clause could address the problem of overlap. Positive laws regulating unfair competition in Japan and Korea have adopted a similar set of rules based on specific conduct regulation, with some variation. Notably, Korean law now prohibits the unfair use of another’s achievement based on an open clause, complementing the specific list of prohibited conduct. The article first presents an overview of unfair competition law in Japan and Korea, highlighting the requirements for protection and limitations, and then explores the problem of overlapping claims surrounding data misappropriation. Contrasting the legislative techniques used by Japan and Korea, this article notes that an open norm may provide the judiciary with an interpretative tool to dynamically address emerging unfair conduct. However, as there is a danger of limiting free competition and potential internal inconsistencies, to avoid asymmetric convergence, open norms should be carefully coordinated with specific conduct prohibitions, with clear prioritization.

Critical Review Of The Atad Implementation: The Implementation of the ATAD in Finland

In this article, the authors provide an assessment of the Finnish implementation of the European Union (EU) Anti–Tax Avoidance Directives (ATAD I and II) in consideration of the EU primary law and secondary law requirements. It is focused on examining the conformity between the Finnish implementation rules and the fundamental freedoms arising out of the Treaty on the Functioning of the European Union (TFEU). Although Finland already had an extensive anti-avoidance framework in place before implementing the ATAD I and ATAD II, Finland had to make some adjustments in almost all areas covered by the Directives. What is perhaps most interesting is that the Finnish general anti-abuse rule (GAAR) in section 28 of the Act on Assessment Procedure has retained the exact same textual form that it had decades previously. The essential question is as follows: Has the actual content of the general clause changed based on ATAD Article 6 and, if affirmative, in what way? Anti-Tax Avoidance Directive (ATAD), Base Erosion and Profit Shifting (BEPS), tax avoidance, anti-avoidance, controlled foreign company (CFC), exit taxation, general anti-abuse rule or general anti-avoidance rule (GAAR), hybrid mismatches, interest limitation rule, EU law, implementation

The Interplay Between the CJEU and National Courts in the Case Law on Unfair Contract Terms in Foreign Currency Loans: A Comparative Overview

Abstract Over the years, the UCTD has become one of the core EU directives aiming at the protection of both businesses and consumers (B2C), i.e., at the achievement of the appropriate balance between the parties’ rights and obligations. However, the UCTD has also left quite a number of important legal questions unanswered. Besides the general clauses on the assessment of the unfairness of contractual terms, there remains a high degree of uncertainty as to the meaning of the transparency requirement and the legal consequences of unfair contractual terms. As a result, in spite of CJEU settled case law, as well as European Commission interpretation guidelines, there are diverging patterns in the national case law of the Member States. The aim of this paper is to investigate these diverging patterns by looking more closely into national case law and into the relationship between the CJEU and the Member States courts, taking as a case study the way in which the UCTD was applied in five countries (Austria, Croatia, France, Italy and Poland) in cases involving consumer loans indexed to the Swiss franc. The survey shows that there are noticeable differences in the interpretation of core concepts underlying the UCTD, such as the unfairness test, the exclusions from the unfairness assessment, and the transparency requirement. The most problematic areas, however, concern the legal consequences of the unfairness of contractual terms. By relying on the analysis of these and related issues, the authors have come to the conclusion that347 even after 30 years of the existence of the UCTD, there are still many important legal questions that need solving.

The Importance of the Principles of Social Coexistence for Divorce in the Context of Cultural and Social Changes A Polish Perspective

Cultural and social changes may affect the methodology adopted by the courts at a certain time in interpreting and applying the law, in particular provisions containing general clauses. These clauses make the law more flexible, enabling it to adapt to changing conditions. They are treated as a kind of “safety valve” to avoid solutions that are unjust, or ethically and morally unacceptable in society. From this perspective, this article will consider the significance of the general clause of the principles of social coexistence in adjudicating a divorce from the perspective of Polish law. The purpose of this article is to answer the question whether, and in what direction, the cultural and social changes that may be taken into account through the general clause of Article 56 of the Family and Guardianship Code affect the dissolution of a marriage by divorce, namely whether or not they hinder the pronouncement of a divorce where the other prerequisites for divorce are met.

Breaching the Taboo? Constitutional Dimensions of the New Chinese Civil Code

AbstractChinese elites have celebrated its new Civil Code (2021) as the most important statute in the nation's history, and the ‘cornerstone’ of its turn toward ‘rule of law’. The Code expressly binds all persons, as well as public officials, and is judicially enforceable. The statute enshrines rights to dignity, equality, personal liberty, property, and privacy, among others, and codifies duties to protect the environment and to evolve effective means to combat sexual harassment. Echoing the German Code, the statute also contains ‘general clauses’ that enable the courts to restrict enumerated rights and entitlements for reasons of ‘good morals’, ‘public order’, and the rights of others. While constituting an act of massive delegation to the courts, judges remain prohibited from directly enforcing the PRC's Constitution. The article explores the relationship between the Code and Constitution, through a comparative analysis of: (i) the process of ‘constitutionalising’ the private law around the globe; (ii) the scholarly discourse on the ‘horizontal effect’ of rights in China; (iii) the structure of the Code itself; and (iv) the development of ‘political’ control mechanisms, to be deployed by the Communist Party of China and organs of the state to constrain how judges use their interpretive powers.

Book review of The Social Economy Act. A Commentary edited by M. Małecka-Łyszczek and R. Mędrzycki

The aim of this review is to examine and reflect on the recently published Commentary to the Social Economy Act, edited by Magdalena Małecka-Łyszczek and Radosław Mędrzycki (2023). Not only is social economy an enormously important and still underappreciated topic, as stated below, but it is also too often addressed in isolation in its numerous institutions. The Commentary’s strength is its comprehensive examination of the fundamental components and principles of social economy. Its content goes beyond the scope of a standard commentary in that it helps the reader interpret the relevant theoretical concepts as well as general clauses and undefined terms; moreover, the authors demonstrate axiological consistency in their approach to the issues discussed. It is a text of high scholarly quality, written in clear and accessible language while maintaining a firm grasp of the subject matter. The book will be a valuable resource for theorists and practitioners alike, especially the interpretations of social economy processes, which the reviewer believes are overly complicated and, like the entire Act, do not represent a particularly high legislative standard. The publication is also of great practical significance as it reflects the changing perspective on anthropological pessimism that has afflicted regulations in this field for too long. The authors provide the necessary knowledge in a synthetic manner, but never at the expense of an in-depth theoretical background or an insightful analysis of practical experience. The cross-sectional coverage of the literature on the subject is particularly noteworthy, as the authors provide a representative overview of the doctrine, especially in the context of the European Union Member States.