General Clauses Research Articles

Open Axiology in Judicial Interpretation of Law and Possible Misuse of Discretion

<p>The subject of the article is to determine the extent to which the judicial interpretation of the law is affected by the use of an open axiology argument in the course of adjudication. Assuming that the use of open criteria is based primarily on the application of the legislative construction of general reference clauses, it is important to link these references to a legislative policy in which they constitute a means of deliberately extending the scope of discretionary power, derived from natural (independent of the legislator) sources. The essential function of the references is the axiological opening of findings made in all essential phases of judicial interpretation – validation, reconstruction and construction, resulting, among other things, in a change in the relationship between the roles of particular interpretation rules. This may lead to various manifestations of abuse of the interpretative discretion of judges, which in turn necessitates the search for certain remedies, among which the formation of permanent lines of jurisdiction and precedential practice, as well as the transparency of the reasoning of judgements, seems to be of the utmost importance.</p>

The One over Many Principle of Republic 596a

Abstract Republic 596a introduces a One over Many principle that has traditionally been considered as an argument for the existence of Forms, according to which, one Form should be posited for each like-named plurality. This interpretation was challenged by (Smith, J. A. 1917. “General Relative Clauses in Greek.” Classical Review 31: 69–71.), who interpreted it rather as a statement that each Form is unique and correlated to a plurality of things that have the same name as it. (Sedley, D. 2013. “Plato and the One-over-Many Principle”, in Chiaradonna & Galluzzo 2013, 113–37.) has offered a forceful defence of Smith’s interpretation. I argue that Sedley’s defence fails and that the traditional interpretation should be preferred.

Axiology of Judicial Application of Enforcement Law: View on the Bailiff’s Discretion

<p class="Standard">In the article, the author focused on three theoretical and philosophical issues of the judicial enforcement law in Poland, connected with the new enforcement acts which entered into force on 1 January 2019. First, the judicial enforcement proceedings were presented as an element of the law application process. The axiological dimension of this law, the place and function of a court bailiff in the law application process and the introduction of general clauses, combined with the basic values of the court enforcement law in the form of efficiency, effectiveness and reliability, form the new picture of the judicial enforcement law. Secondly, the problem of a general clause as a “carrier” of extralegal criteria was discussed, which takes an important place in the process of enforcement law application in the new bailiff’s law. There is the special role of the “public interest” and the “interest of justice” clauses as normative constructions introduced by the legislator to judicial enforcement. Thirdly, an attempt was made to answer the question about the presence and possible limits of discretion (free decision-making) of a court bailiff in the surrounding of the new axiology of enforcement law, and especially the formulation of this issue in the process of operative interpretation of law by a court bailiff.</p>

Proibição de discriminação da pessoa com deficiência: a incidência do princípio da igualdade nas relações privadas

A Constituição Federal tem uma cláusula geral de proibição da discriminação; contudo o tema suscita a incidência do princípio da igualdade no âmbito das relações privadas, o qual é objeto de questionamentos e resistências. No tocante às pessoas com deficiência, o combate à discriminação enfrenta também o desafio de superar a tensão entre igualdade e autonomia privada. O objetivo do presente estudo é analisar os fundamentos e delimitações da vedação da discriminação contra a pessoa com deficiência nas relações privadas. Por meio do método dedutivo e do procedimento de pesquisa documental bibliográfico, constatou-se que a proteção contra a discriminação no ordenamento jurídico brasileiro adota uma perspectiva direta, carecendo de aprofundamento a respeito da proteção contra discriminação indireta. O Estatuto da Pessoa com Deficiência traz diversas normas que proíbem a discriminação contra a pessoa com deficiência, com incidência expressa sobre as relações privadas, mas a questão ainda é objeto de controvérsias.

Prawo do odliczenia podatku od towarów i usług a dochowanie należytej staranności przez podatnika przy weryfikowaniu kontrahentów

Podstawowym prawem wynikającym z dyrektywy Rady 2006/112/WE jest prawo do odliczenia podatku naliczonego, które to prawo może zostać — wyjątkowo tylko — ograniczone przez państwa członkowskie. Zarówno polskie, jak i unijne przepisy nie definiują pojęć „należyta staranność” oraz „dobra wiara”. Pojęcia te są tak zwanymi klauzulami generalnymi i zdefiniowane zostały na potrzeby prawa do odliczenia podatku VAT jedynie w orzecznictwie TSUE. Zapewniają one — przy dokonywaniu konkretnej oceny stanu faktycznego — tak zwany luz interpretacyjny, który pozwala uwzględnić kryteria pozaprawne mające znaczenie w funkcjonowaniu obrotu gospo-darczego. Wydaje się, że nie jest możliwe precyzyjne i zarazem niebudzące kontrowersji w procesie stosowania prawa zdefiniowanie pojęć „należyta staranność” czy „dobra wiara”. Należy postulować rozumienie należytej staranności jako zwykłej kupieckiej, zwyczajowo przyjętej staranności, która związana jest z przekonaniem, że towar czy też usługa nie jest dokonana/wykonana przez oso-bę zamierzającą „obejść” przepisy prawa podatkowego. Podatnik powinien dochować minimum staranności i dobrej wiary przy sprawdzaniu kontrahenta, a nie za organy podatkowe poszukiwać nieuczciwych przedsiębiorców.

Liability for Intelligent Robots from the Viewpoint of the Strict Liability Rule of the Hungarian Civil Code

The European Parliament resolution of 16 February 2017 on Civil Law Rules on Robotics proposed that the strict liability and the risk management approach are alternative legal instruments to achieve the goals set out by this instrument. The evolution of strict liability is parallel with technological change; our question here is whether the elaborated rules are appropriate for managing new problems. For establishing accountability, the question arises: who is to be held liable for damages and based on which form of liability? Setting aside the issues of product liability and setting aside the independent liability of the most sophisticated autonomous robots having ‘electronic personality’, this essay concentrates on liability questions of the user, and it examines the strict liability rules instituted by the Hungarian Civil Code and their application in practice. According to the results of our previous research, the judicial practice regarding the general clause of liability for dangerous activity (Section 6:535. HCC) is quite flexible and covers the liability issues of damage caused by artificial intelligence. We observed also that the criterion ‘dangerous’ means less and less risk of damage within normal circumstances, and this statement of fact in practice also successfully competes with other strict liability rules (i.e. product liability for malfunctioning medical devices, liability for dangerous animals, etc.). The capacity of the ‘keeper’ or ‘operator’ of the robot and the emerging new types of risks are also touched upon.

O institutu delimične ništavosti ugovora kroz prizmu načela slobode ugovaranja

The paper examines the relationship between the principle of party autonomy and the institute of partial nullity of a contract. This interrelation has been brought to the spotlight due to the fact that the application of the institute of partial nullity inevitably triggers court's intervention in the initial content of the contract, which, to be dogmatically correct, shall, in principle, be upheld by the contracting parties. This is so, given that the parties, in the specific case, may favour the elimination of their contract over its survival in the modified content. The analysis has indicated that the stance on this subject matter cannot be uniform, since the occasions in which this relationship may come into play are not identical. Thus, this relation has been assessed in the three different sets of cases: 1) these in which the legislator a priori foresaw nullity of a specific contractual clause opting at the same time for the survival of the rest of the contract; 2) these in which the parties anticipated in their contract the influence of the nullity of a specific clause to the rest of the contract, and eventually, 3) these in which the court established the nullity of a concrete contract provision based on a general nullity clause to be found in Art. 103 in conjunction with Art. 105 of the Law on Obligations (LoO). Given that the LoO does not provide any guidelines on how the courts should handle the last group of cases, the approach advocated to this end in the legal doctrine and jurisprudence of the countries belonging to the Germanic legal family has been analysed. There, the dilemma between the partial nullity and nullity in toto is being solved with the help of the legal concept of hypothetical will. This is followed by the explanation of the concept of hypothetical will along with the legal standards and criteria according to which it shall be established. The paper concludes with the finding that the objective approach in the examining of the hypothetical will, which is advocated in the examined legal systems, is also acceptable from the viewpoint of Serbian law.

Delegacyjna właściwość sądu ze względu na „dobro wymiaru sprawiedliwości” w postępowaniu cywilnym

The amendment introduced into the CCP general clause – „good justice”. The above delegation competence causes numerous interpretative controversies. Due to art. 45 item 1 of the Polish Constitution, the new regulation should be interpreted strictly. Too broad an interpretation may lead to a weakening of the authority of the judiciary. It should be assumed that the application can only be submitted by the court with territorial jurisdiction.

Sadržina načela određenosti (lex certa) u pogledu pravne sigurnosti kod pojedinih krivičnih dela krivičnog zakonika Srbije

This paper discusses the issues related to the question of the content and application of the principle of certainty (lex certa) in criminal law. Special attention is given to the lex certa principle as envisaged in recent amendments to the Criminal Code of the Republic of Serbia, particularly regarding the specific application and problems encountered in judicial practice. In particular, the author explains individual crimes and points to some shortcomings of the legislative technique in prescribing a legal norm. In this regard, the author analyzes individual Criminal Code provisions on relevant criminal offenses. Further on, the author emphasizes the importance of proper understanding and interpretation of the existing general clauses. One of the most difficult tasks of legislative technique in criminal law is to define and prescribe the substance of a criminal offense (corpus delicti, the body of crime). The precise and specific definition of distinctive elements of crime is essential in criminal legislation. In case the legal elements of a criminal offence are broadly defined or provided in vague and imprecise terms, there is inobservance of the lex certa principle. In this context, the author elaborates on the distinctive elements of certain criminal offenses, their incrimination, as well as the objective and subjective features of the specific crime, which may give rise to different interpretations and activities in criminal proceedings, ultimately resulting in the inobservance of the lex certa principle. First, the author analyzes the recent amendments to the Serbian Criminal Code in respect of the following criminal offenses: Stalking (Article 138a CC), Sexual harassment (Article 182a CC), and Female genital mutilation (Article 121a CC). Then, the author points out to prospective changes in the national provisions on some criminal offences, which are already envisaged in the Istanbul Convention.

Özel Hukukun Bütünlüğü Ilkesi ve Medeni Kanunun 5 inci Maddesinin Aile Hukukundaki Uygulaması

5th article of the civil code specifies the following: “All general clauses under the Civil Code and Code of Obligations are applicable on all private law relationships to the degree they are appropriate”. With this regulation, the aim of the legislator, the systematic of the clause through its execution, and how the article shall be interpreted should also be determined. 5th article of the Civil Code usually eliminates the gaps concerning private law and general legislative regulations and has an extensive scope of execution. Embodiment of this extensive scope of execution within the framework of “General clauses of Civil Law and Code of Obligations” and “private law relationships” is limited to family law in our study. Thus, it is aimed to specifically exemplify the role of the article in its execution.

Tryb postępowania przed organem rentowym w sprawach świadczeń z tytułu wypadku przy pracy

This article discusses the practical aspects of recognizing an occurrence as a work-re­lated injury. The Act of 30 October 2002 on Social Insurance against Work-related Injuries and Occupational Diseases (consolidated text of 2018, item 1376) contains only a general definition of a ‘work-related injury.’ Moreover, it does not specify the meaning of the terms which are used in it, particularly of terms such as a ‘sud­den occurrence’ or an ‘external cause.’ Many problems stem from a lack of criteria which should be used while deciding whether a ‘considerable contribution to the injury’ due to being under the influence of alcohol or drugs as defined in Article 21 of the Act has occurred. Therefore, during a preliminary investigation, a dis­ability pension authority must determine whether the occurrence in question is a work-related injury. To that end it investigates whether the insured person has contributed to this occurrence to a considerable degree because if he has, such a conduct excludes the right to a work injury benefit. Accordingly, employees of the Social Insurance Company examine the accident scene and collect information in the workplace, from the prosecutor’s office, the police, or the healthcare centre, or by interviewing witnesses. Having documented the factual circumstances and explained all the existing doubts they are then able to define the terms and draw correct conclusions which result in a decision to award a benefit or to refuse it. Owing to the fact that the regulations concerning issues of recognizing an oc­currence as a work-related injury and rights to a benefit are general clauses, it is necessary to be familiar with the current case-law. Without following the trends in the case-law of the Supreme Court one is not able to interpret facts and occur­rences properly and hence the assessment of whether the insured is entitled to a work injury benefit is not possible.

Legal Importance of Codes of Ethics in Insurance

According to the author, codes of ethics are of significant importance as an example of self-regulation of the insurance market despite the fact that they do not belong to the constitutional sources of law. Non-compliance with the code of ethics by an entrepreneur may constitute unfair commercial practice in relation with consumers or unfair competition practice in relation with other entrepreneurs. Moreover, codes of ethics may specify the contents of general clauses regulated by the Civil Code, thus influencing the contents of the contracts concluded and validity of clauses thereof as well as the unlawfulness as an element of tortious fault and the level of professional due diligence required to be released from liability for the non-performance of contracts. In the author’s opinion, the entry into force of the Insurance Distribution Act ought to encourage updating and concretisation of the existing ethical codes.

Purchase price adjustment disputes in mergers and acquisitions: an intersection of different dispute resolution procedures and a war of jurisdictions

Abstract Frequently included in mergers and acquisitions (M&A) contracts purchase price adjustment clauses allow for upward or downward adjustments to the purchase price depending on a selected metric to help the parties of a transaction to overcome the information asymmetry about financial variables caused by the time lag between signing and closing. As a complex weave of technical accounting, financial, and legal issues, regardless of how objectively and meticulously conceived and drafted, it is quite often that disruptive issues arise in connection the with these clauses. In addition to the general arbitration clause typically contained in the M&A contracts, as a common practice, parties agree to submit any dispute concerning the values reported in the financial schedules to calculate the amount of an adjustment to an independent accounting firm for an expert determination. Since most of the time contracts do not provide any particular provision as to the relation between these two mechanisms, the practice shows that neither the demarcation of the two from each other nor the interaction between them is always unproblematic. This article, after explaining the price adjustment clauses, discusses the potential problems of which the parties should be well aware and address considering the case law and different approaches.

EVALUATION OF PERFORMANCE OF TRAINEE AT 4 DAYS MOODLE BASED INTERNAL AUDITOR TRAINING AS PER ISO 15189:2012 AND NABL-112

Background: For medical testing laboratories accreditation, laboratory has follow ISO: 15189:2012 and NABL-112. For this,quality manager of the laboratory must have to go under 4 days internal auditor training as per ISO 15189:2012 and NABL-112. Moodle is Learning Management System (LMS) which helps in systemic evaluation of trainee during internal auditor training.
 Objectives: The study was done to measure performance of trainee after completion of internal auditor training by comparing for each sub-clause of ISO 15189:2012 as well as for various categories of trainee.
 Materials and Methods: Online Moodle based - internal auditor training as per ISO 15189:2012 and NABL-112 was arranged in GMC, Surat, Gujarat for 4 days, with total 28 trainee. MCQ test was taken on-line with Moodle. Relationship of score with ISO 15189:2012 clauses and trainee category were analysed.
 Results: Participant’s average score in general, management and technical clause were 67% ,73.4% and 77.9% respectively. Teaching staff, Residents and Technicians scored 76.3 %, 77% and 70% respectively.
 Conclusion: Training emphasis and effectiveness in ISO 15189:2012 management clause was comparable with technical clauses. Moreover, the study found that, Training was effective across all categories of trainee.
 Keywords: ISO 15189:2012, NABL, Moodle

A General Clause of Punitive Damages Should Be Established in China's Future Civil Code

A General Clause of Punitive Damages Should Be Established in China's Future Civil Code

The Application and Interpretation by South African Courts of General Renvoi Clauses in South African Double Taxation Agreements

General renvoi clauses in DTAs based on article 3(2) of the OECD MTC provide that an undefined term in a DTA shall have the meaning that it has in the domestic law of the contracting state applying the DTA unless the context otherwise requires. All South African DTAs include such a clause.
 Many interpretational issues remain with regard to the application and interpretation of general renvoi clauses. This article considers four of these issues in the light of South African cases in which general renvoi clauses were referred to. The following cases are considered: ITC 789 (1954) 19 SATC 434, Baldwins (South Africa) Ltd v Commissioner for Inland Revenue (1961) 24 SATC 270 and Commissioner for the South African Revenue Service v Tradehold Ltd 2012 3 All SA 15 (SCA).
 The first of the issues considered in the article is relevant in those cases where a DTA includes a general renvoi clause based on the pre-1995 version of article 3(2) and where amendments were made to a relevant domestic meaning after the conclusion of the particular DTA. These clauses do not expressly state whether the relevant domestic meaning is the domestic meaning existing at the time of the conclusion of the DTA, or at the time of the application of the DTA.
 The second issue arises if the expression used in the domestic law is not identical to the undefined treaty term. The question is whether the expression in the domestic law can be used to give meaning to the treaty term under the general renvoi clause.
 Another interpretational issue considered in the article concerns deeming provisions in the domestic law. The issue is whether a meaning that a term is deemed to have under a provision in domestic legislation can be used under the general renvoi clause to give meaning to the undefined term in the DTA.
 The last issue deals with the meaning of the phrase "unless the context otherwise requires". The question raised is whether this phrase means that the domestic meaning should be given only as a "last resort", or whether it should apply unless "reasonably strong" arguments to the contrary are made

A Fairness-Based Approach to Economic Rights

The economic rights in copyright law received their present shape under different economic circumstances. Unlike in other areas of intellectual property law, there is no infringement test which would limit copyright protection to its proper function. Whereas in US law the broad scope of copyright protection is counterbalanced by the fair use exception, no such flexibility exists in EU law. This paper proposes a more flexible, market-sensitive infringement test. The ‘fairness-based approach’ presented here draws on experiences from trade mark and unfair competition law. It suggests a three-level model consisting of a black list of acts which are pro-hibited per se if done without the right owner’s consent, a medium level of acts which only trigger an infringement action if a negative effect on the right owner’s market or an unjustified profit of the user is shown, and a broad general clause.

Prawo żeglarskie – pytanie o status dyscypliny i program badań


 
 
 The traditionally established divisions of law are currently subject to modification occurring in line with the phenomenon of regulating more and more human activities. While the division between public and private law, as well as the catalog of legal branches is still quite stable, more specific areas of law are visible, indicated mostly according to their subject. Sailing law (also called boating law) is the case.
 The collectivity of norms regulating offshore sailing is most often referred to as maritime law (lex generalis), and it covers norms regulating sailing, i.e. sailing law (lex specialis). however, sailing is subject to very complex and heterogenous regulations. The article lists the most significant legal provisions in practice. more aspects of sailing can be included and specified as indicated in the article.
 each aspect mentioned above may require going beyond the legal system due to the general clause referring to the best maritime practices. This helps us to realize that sailing law can be divided into sets of theoretical aspects pertaining to the creation of the theory of sailing law.
 It all reflects the complexity and beauty of sailing law. It is not a branch of law. however, due to the subject of its applicability and the specificity of sailors, it is an area of law ensuring safety on the water. This precaution has the nature of a legal principle justifying and being the basis for most of the regulations applicable to maritime transport, therefore, also sailing.
 
 

The CCJ decolonizing Caribbean constitutionalism

The Caribbean Court of Justice was conceived to further the Anglophone Caribbean’s decolonization process. Decolonization included not just transitions from colony to independent statehood but also the repudiation of imperial formations. The Court’s capacity to do this is evident in the McEwan Case. Using bold approaches to interpretation, the CCJ effectively erased the general savings law clause (which was previously treated as effective in immunizing colonial laws from inconsistency with the Bill of Rights) and affirmed the fundamental rights of trans persons. Since those clauses tethered post-independence constitutionalism to colonial era legal arrangements, erasure has the effect of bringing the Constitution forward and home. I argue that erasure is the result of proper methods of interpretation and not overreach since savings clauses are now functionally obsolete. The CCJ also signalled its decolonising capacity by articulating Caribbean identity in inclusive terms. It rightly affirmed that trans persons are entitled to full membership in the political community, in circumstances where its position is likely an anti-majoritarian one. The CCJ is demonstrating its decolonizing capacity in a context where, it is argued, the Privy Council cannot. It is hoped that other Caribbean States will be encouraged to accede to the CCJ’s appellate jurisdiction.

ACCIDENTAL TORSION WITH INDUSTRIAL BUILDINGS – OVER‐CONSERVATIVE RULES IN EC8

ABSTRACTThis paper is related to seismic design of industrial steel buildings, such as warehouses and plant skeleton structures. Designers will be encouraged to skip rules of EC8 under certain circumstances, which lead to over‐conservative results.Seismic design according to EC8 contains a general clause on accidental torsion. There, the possibility of an offset of the resulting masses within a storey and the spatial variation of the seismic motion is considered. Consequently, this leads to an unintended torsion (e.g. rotation of the structure about its vertical axis). Different magnitudes of additional loads in the vertical bracing planes may follow depending on the location of the bracing in the structure. Even in the favorable case of the bracing being located in the outmost walls (which is given in typical warehouses anyway), the bracing forces are to be increased by a factor of 1.3 according to the provisions of EC8 lateral force method. In this paper, the determination of the bracing forces is followed in two examples of industrial buildings, a warehouse with a crane bridge and a plant skeleton structure with heavy equipment on different levels. Based on these examples it will be shown, that the provisions of EC8 are way too conservative. Advice is given, on how the designer can come up with robust, but much lower forces for the vertical bracing planes.