Good Faith Research Articles

Corporate Legal Dogmatics on the Revocation of Share Donation Due to Breach of the Duty of Loyalty

Abstract The article is devoted to the research of the institution of revocation of share donation and, mainly based on the interrelationship of German civil and corporate law, proposes a dogmatics intended for use in the development of a uniform Georgian judicial law on the issue. Failure to use corporate legal specifi cs and legal dogmatics in the cancellation of the share donation agreement, which is the direction taken in the latest Georgian judicial practice, may lead to outcomes detrimental to corporate governance and business development. The management of any entrepreneurial entity and, especially, capital-type corporation essentially depends on how the partner will enjoy the rights derived from his share and what influence he will be able to have on making corporate decisions. Of course, it is the general legal duty of the company partner, under both private and corporate law, to exercise the rights arising from the membership in good faith, for the benefi t of the common public interest, to reject any individual mercantile intentions and ensure the company’s management process with a high standard of duty of loyalty. In violation of this standard, the partner may be held individually liable in case of damage to the enterprise, which is considered a kind of neutralizing deterrent against the violation of the duty of corporate loyalty. Establishing such a uniform judicial practice of cancelling the share donation agreement, without considering the specifics of corporate law, threatens to severely constrain the realization and implementation of the rights arising from the share itself, which is not allowed in corporate law.

Принципы договорного права в судебных делах, осложненных использованием контрагентами цифровых технологий (опыт Нидерландов)

Increasingly, there are legal disputes that cannot be directly resolved by the current legislation, as it has not kept pace with the development of digital technologies. In such a situation, it is useful to turn to foreign experience. Transposition of new foreign cases to the Russian reality allows predicting the development of business practice and future solutions for similar problems. The purpose of the study is to analyse the decisions of the courts of the Netherlands, in which the principles of contract law are applied to disputes about digital products. The provisions that Dutch courts derive from the principles of freedom of contract and good faith are formulated, and the mechanisms of protection of the weaker party to the contract are disclosed. On this basis, conclusions are drawn which, mutatis mutandis, can be applied in Russia. The thesis is substantiated that in the conditions of digitalisation the categories of contract law are not abandoned, but there is a need for their specific interpretation, taking into account all the circumstances of the case.

The interpretation of the law: act of knowledge or act of will?

The issue of interpretation of the law has enjoyed increased attention from the legal doctrine and practice during the centuries. Both the natural-law school and the normative theory with its positivist version have pleaded to define the interpretation as an activity that focuses on the significance of the norm, the act or human conduct. The divergence occurs in the case of the answer to the question whether the meaning is only discovered or it is determined by the one who interprets the law. Analyzing the theses of the French authors about interpretation, first of all of the followers of realistic theory, we come to the conclusion that it is an act of knowledge, but to become mandatory, that is to produce legal effects, the will of the body that applies and interprets the law is needed and in this case the judge, through good faith, professionalism and common sense, is responsible for his/her decision. How important is the will of the body that interprets the law proves the case study: Ukraine and Moldova.

Professional Liabilities of Legal Officer in Providing Legal Opinion to the Corporate Directors

The legal officer must be neutral when providing legal opinions to the directors. Therefore, the liability for providing legal opinions belongs to the directors. The research objectives are to specifically analyse the position of a legal officer as an employee of a company; and analyse the professional liability of a legal officer in providing legal opinion to the company’s directors. This research uses normative law research method with normative case studies in the form of legal behaviour products. While the approach method is a statutory approach. The legal officer is authorized in determining the measures to be taken by the company in accordance with the orders of the directors and applicable company regulations. The liability of the legal officer is limited to providing opinions in accordance with the duties and functions assigned by order of the directors in good faith and professionally.

Legal Protection for E-commerce Business Actors regarding Consumer Reviews

Customer reviews in e-commerce play an important role in influencing the decisions made by customers. Before making a purchase, many people read positive customer reviews because they can offer useful information to potential buyers and increase their overall level of trust in the product. The purpose of this research is to analyse the good faith of business actors and how it impacts the law stipulated in the Consumer Protection Law. This research utilizes a normative legal research study whose findings show that consumers are not liable for criticism that harms businesses, according to the Consumer Protection Law (UUPK). In particular, Article 5a requires consumers to pay special attention to product descriptions listed in stores. In the e-commerce business world, business actors utilize the latest technology such as the internet to facilitate their business activities, yes; they get a number of benefits such as serving customers and making it easier to access distant information more quickly. If business actors receive negative reviews from consumers that do not match the facts so as to cause losses to business actors, the legal protection for business actors based on a positive legal perspective will be analysed. Based on the results of the analysis, it is found that giving negative reviews by consumers without a clear explanation and not according to the facts can harm business actors. This is considered a bad faith action by consumers.

Religious Organizations as Racialized Organizations: Loose Coupling and Symbolic Allyship Between Denominational Racial Justice Statements and Congregational Practice

In the post-Civil Rights era, many predominantly white religious denominations issued statements denouncing racism and challenging their congregations to take organizational action to undo racism, but do these statements translate into actions? New institutionalism theorizes that loose coupling between statements and actions is normative for organizations as they balance signaling support to their external environment while simultaneously maintaining the good faith of internal membership, but Ray contends that because organizations are racialized, this disconnect maintains racial inequality. Building on new institutionalism, I develop the concept of symbolic allyship: symbolic actions that mark the organization as an ally, but these symbolic actions vary in the degree to which they pose organizational risk in maintaining member confidence. Using a nationally representative sample of American congregations within predominantly white denominations that have implored their congregations to act to address racism, I employ latent class analysis to test the prevalence and shape of congregational loose coupling between symbolic statements and symbolic actions. Results suggest that loose coupling between statements and actions is the norm. Further, results provide some evidence that congregations trend toward engaging in symbolic actions that have lower potential costs to the good faith of members. Because these forms of symbolic allyship signal support to the outside world, they may also mask lower levels of organizational change and reinforce racial inequality. Finally, regression analysis illustrates that the ideological mismatch between more progressive denominational statements and more conservative local political and theological cultures helps in understanding this pervasive loose coupling.

NAVIGATING THE NUANCES OF TACIT KNOWLEDGE REVISITED: COMPARATIVE STUDIES IN MANAGEMENT THEORY APPLIED TO INDIGENOUS KNOWLEDGE IN GOOD HEALTH AND WELL-BEING

This article reviews previous studies and provides a rationale for the inclusion of the concept of tacit knowledge in Indigenous Knowledge as an economic resource for stakeholders. It conducts a historical and revisited comparative analysis of tacit knowledge in the management theory of oral knowledge in Indigenous Knowledge within the realm of scientific investigation. The main argument is focused on the recognition of tacit knowledge accumulated and often lacking scientific validation in its continuous existence perpetuated by local communities, tribal and Indigenous Peoples on our planet. Tacit knowledge, often shared in goodwill and good faith among stakeholders, particularly non-Indigenous Peoples, implies a moral and legal obligation of benefit-sharing for all parties involved. The case studies presented in this article illustrate the role of tacit knowledge in Indigenous Knowledge and its past uses in traditional medicine utilised in patents, having deep implications for benefit-sharing on drug profits. In reviewing past findings in the native botany drugs discovery market, this article illustrates the developments in the integration of traditional medicine into national systems of health, which often fail to express tacit knowledge value independently of the verification of Western science as a justification for its efficacy.

Ambiguous genitalia causing principle of utmost good faith in insurance agreements’ violation

The purpose of this study is to study the application of the principle of utmost good faith in ambiguous genitalia case studies in insurance agreements. The data collection technique is a literature study, aiming to draw conclusions on the application method of the principles of good faith. The results of the study confirmed that some insurance companies refuse to make an insurance agreement for individuals with gender ambiguity. Therefore, it is important to develop policies that are more inclusive and fair for all individuals, without exception.

Studi Implementasi Hibah Dalam Perspektif Hukum Islam : Analisis Pelaksanaan Pemberian Hibah Dalam Kerangka Islam

Law is a regulation or social norm that cannot be separated from the values ​​that apply in society. One of the important roles in social life that makes good education possible is the family. One of the most frequent problems is the transfer of assets from parents to children, usually in the form of gifts. In practice, many grants that are given are then canceled unilaterally by the grantor for various reasons, including wrong behavior and waste committed by the grantee. This usually happens when giving grants. Usually, the person initially displays good behavior and then changes personality over time. In the legal field, there are funding regulations that regulate requirements, procedures and legal implications. A gift is money, property, or other assets given in good faith for the benefit of the recipient. It is important to have a clear understanding of the regulatory and legal implications related to grants so that the process of granting and receiving grants is transparent and implemented in accordance with applicable regulations. This research investigates the application of funding concepts based on Islamic legal advice.

THE PHENOMENON OF "CLICK" AND THE PRINCIPLE OF GOOD FAITH IN ONLINE BUYING AND SELLING: A PHILOSOPHICAL PERSPECTIVE ON BUSINESS LAW

<table border="0" cellspacing="0" cellpadding="0"><tbody><tr><td valign="top" width="388"><p class="TableParagraph"><em>The development of information and communication technology has driven the growth of the increasingly popular phenomenon of online buying and selling, but it has also brought legal issues related to the principle of good faith in such transactions. In the context of online buying and selling, the action of "clicking" as an expression of intent to enter into a sales agreement has legal implications, but it is not yet clear whether it truly reflects free will and good faith considering the virtual nature of transactions which are vulnerable to issues such as lack of clarity in information or fraud. This research aims to examine the phenomenon of "clicking" in online buying and selling transactions from the perspective of the philosophy of business law and its relation to the principle of good faith in contract law, as well as to analyze the legal developments and regulations in Indonesia in accommodating this phenomenon along with the challenges faced in its implementation. This research uses a normative legal research method. A conceptual approach is used to understand the concepts and principles of law related to the phenomenon of "clicking" and the principle of good faith in online buying and selling in depth from the perspective of the philosophy of business law, by collecting data through literature review and analyzing the data qualitatively. The research findings show that the review of the philosophy of business law emphasizes that the action of "clicking" in online buying and selling transactions should be regarded as a manifestation of free will and good faith if based on complete and transparent information, and there is no imbalance in bargaining positions between businesses and consumers. Efforts to enhance transparency, strengthen consumer protection, and enforce the law rigorously are needed to create a fair and dignified online buying and selling ecosystem. Meanwhile, regulatory developments in Indonesia such as the ITE Law and the PMSE Regulation have not specifically accommodated the phenomenon of "clicking" and the principle of good faith, with the main challenges being the dynamic nature of digital technology, gaps with conventional legal principles, and the need to ensure a balance of interests and enhance public education on safe online buying and selling transactions.</em><em></em></p></td></tr></tbody></table>

Employment Protection and Venture Capital Investment: The Impact of Wrongful Discharge Laws

Wrongful discharge laws (WDLs) provide limits to the employment-at-will doctrine, and thus impair operating flexibility, increasing expected financial distress costs by making it costly to fire employees. This impairment is detrimental to start-ups, leading to a decline in venture capital (VC) investment. Using a difference-in-differences framework enabled by the staggered adoption of WDLs across the U.S. states, we show VC investment declines after a state adopts the good faith exception (the strongest form of WDL). This decline is most pronounced in sectors with high labor dependency. This paper was accepted by Victoria Ivashina, finance. Supplemental Material: The data files are available at https://doi.org/10.1287/mnsc.2023.01936 .

Judicial Review of the Application of Corporate Legal Veil in Malaysia and Indonesia: A Legal Comparison

This study aims to find a comparison of the Legal Corporate Veil between Malaysia and Indonesia. This research is a normative legal research as a literature review. It is found that in corporate law both in Malaysia and Indonesia there is a principle of limited liability between shareholders and company directors known as Separate Legal Entity. This principle essentially asserts that a person's responsibility in a company is limited to their responsibility within the company and does not extend to personal liability. In Malaysia, this regulation is governed by Section 20 of the Companies Act 2016. Meanwhile, in Indonesia, this principle is scattered in the provisions of the Limited Liability Company Act (UU PT) applicable to shareholders, directors, and commissioners. However, this principle may become inapplicable in certain cases, known as Piercing The Corporate Veil. In Malaysia, this is regulated under the Companies Act 2016 as well as several judicial decisions. In Indonesia, this principle becomes inapplicable if shareholders act in bad faith by using the company for personal gain and are involved in legal actions undertaken by the Company. One form of protection from personal liability for Directors and Commissioners is implemented based on the Business Judgement Rule principle. Personal liability does not apply if Directors and Commissioners can prove that the company's loss is not due to their negligence, they have acted in good faith, have no conflict of interest, and have taken action to prevent losses. In this study, there is also corporate responsibility outside the existing Limited Liability Company Law based on business and economic developments decided by The Constitutional Court.

Legal Protection for Third Parties in Good Faith on Actio Pauliana Litigation in Bankruptcy Proceedings

Actio Pauliana in bankruptcy, as stipulated under Law Number 37 of 2004, empowers the Curator to seek the annulment of transactions undertaken by the bankrupt debtor, causing harm to the bankrupt estate. Actio Pauliana requires proof that a third party, the debtor's transaction partner is proven to not have acted in good faith, as outlined in the law. However, the legislation lacks clarity on the criteria safeguarding third parties in good faith against Actio Pauliana claims. This research employs a doctrinal research method involving a statute, conceptual, case, and comparative approach. The novelty of this research expounds upon and elucidates the need for amendments to Law Number 37 of 2004, particularly concerning the criteria protecting third parties in good faith. These criteria could be differentiated based on the third parties' position in bankruptcy and the nature of the objects constituting the bankrupt estate, including tangible and intangible movable objects, unregistered objects, immovable objects, and/or registered objects. Furthermore, proposed improvements to the law include refining provisions related to creditors' right to file Actio Pauliana lawsuits, affirming a one-year period rather than a deadline, and addressing timelines within Actio Pauliana lawsuits. Actio Pauliana claims should only be submitted after the debtor's bankruptcy declaration, excluding the Suspension of Debt Payment Obligations (PKPU) process. In conclusion, the research proposes possible solutions, such as the issuance of a Regulation (Perma) or a Circular Letter (SEMA) by the Supreme Court, containing the essential improvements to Law Number 37 of 2004.

Unilateral Activities in Disputed Maritime Areas and Meaningful Responses

Unilateral activities conducted in a disputed maritime area pending maritime delimitation are considered to be a violation of the pre-delimitation obligations imposed by Article 74/83(3) of the 1982 United Nations Convention on the Law of the Sea, which may trigger State responsibility. The obligations contained are negotiation in good faith and self-restraint. However, this is not a prohibition of all activities in disputed maritime areas. Through a study of the relevant case law of the international courts and tribunals, this article finds leniency towards unilateral activities in disputed maritime areas, i.e., some exceptions are permitted. In the South China Sea, reaching a final delimitation agreement can be a difficult and long-term task due to competing interests and the numerous countries involved. Facing unilateral activities undertaken in such an area, the appropriate and meaningful responses are significant to safeguard maritime rights and interests.

Arguing across spaces in an online epistemic community

Abstract Wikipedia is the most consulted source of information on the web, on a global level. The collective writing of articles, open to the participation of all, can give rise to major conflicts between contributors, in texts and debates, given the high stakes involved in achieving agreement on a public presentation of controversial topics. We present analyses of how disagreements are managed across socio-technical and dialogical spaces in French Wikipedia, with respect to two case studies, on Freud and the Turin Shroud. We adopt a mixed methods approach, combining results of analyses of interviews with moderators in these articles and argumentative discussions underlying them, within a broadly pragma-dialectical framework. We show, on one hand, that moderators’ attempts to resolve disagreements by requiring participants to cite sources simply displace conflicts to the nature of those sources, their validity, their authors and the good faith of their proponents. Debates concerning sources themselves draw on social actors’ perspectives in dialogical spaces, beyond the discussion itself. Disagreements are managed rather than resolved dialectically by displacing them to alternative socio-technical spaces, such as different sections of the text itself, or participants’ personal pages.

A New Test Toward Consistency in International Investment Arbitration

Abstract The issue of inconsistency in international investment arbitration has become more evident with the proliferation of investment disputes. This article analyzes the value as well as the desired extent of consistency and coherence for investment arbitration, and further proposes a new test that would enhance consistency and foster the development of investment law. By matching the current status of investment arbitration with three identified conditions for the application of stare decisis or jurisprudence constante, this article concludes that strictly applying the doctrines to achieve consistency is neither feasible nor favorable for the investment arbitration regime. Further, while the public nature of this dispute-resolution mechanism requires consistency and coherence, existing attempts and approaches in this regard have significant limitations. As such, this article proposes a soft precedents test to reach a balance between consistency and flexibility. The test requires the tribunals to consider previous cases in good faith when facing the same or similar issues discussed therein, and the core consideration in whether to agree with previous cases is to develop international investment law. It is suggested that this proposed test would help to clarify, enrich and develop the content of the law within the investment arbitration community.

Commentary on the Latest Revisions to the Detailed Rules for the Implementation of the Chinese Patent Law

Abstract To implement its patent law amended in 2020, China revised the Detailed Rules for the Implementation of the Chinese Patent Law on 11 December 2023. Since the revisions concern many important and controversial topics in the patent field, it is necessary to evaluate how they will impact the interests of patentees and related parties domestically and worldwide, and how China can improve its patent system to not only meet the expectations from Chinese society but also accelerate the innovation process in the world community. To achieve that goal, this report discusses the benefits of the changes, the controversies behind them, the factors and opinions that affected the revisions, as well as the unaddressed issues and problems. Specifically, it highlights the important revisions in the principle of good faith, the request for the delayed examination, the priority system, patent term compensation, international design application, service inventions, and the open licensing system. It then briefly discusses the minor changes in the ex officio examination conducted by the patent administrative department, the patent right evaluation report, information disclosure of generic resources, and the responsibility of the patent administrative department. Meanwhile, this report points out the unsolved issues and problems in the definition of new drugs, the compensation rules for the delays caused by the marketing review of new drugs, the legislative basis of the ex officio examination conducted by the patent administrative department in the patent invalidation procedure, and the reform of the re-examination and invalidation procedures.

The KMT’s Shifting Approach to the Outside World during the 1920s: A Reinvention of Chinese Confucianism

Through a Confucian lens, this research explores the transformation of the Kuomintang’s (國民黨; KMT) foreign policy during the 1920s. It examines the shift in the KMT's foreign policy from Sun Yat-Sen’s 孫逸仙 (1866-1925) “Allying with Soviet Russia” (lian’e 聯俄) stance to Chiang Kai-shek’s 蔣介石 (1887-1975) prioritization of Western relations around 1927. The study highlights the reintroduction of Confucianism in the KMT's foreign policy during this period, considering the conventional Confucian education of KMT leaders. Unlike previous studies analyzing this shift from political or historical perspectives, this study provides a chronological analysis that centers around the change to Confucianism. It addresses a significant research vacuum in the existing literature and uses archival analysis to examine the evolution of the KMT’s foreign policy. The study examines primary sources such as Sun’s speeches, Chiang's diary, and contemporaneous memoirs. The study comprises three chronological sections. The first section (1920–1924) explores the influence of Confucianism on Sun’s alignment with Soviet Russia due to commonalities between Confucianism and Communism. The second section (1924-1927) examines how Confucianism shaped the KMT’s Western-oriented shift. The third section (1928–1930) delves into the philosophical basis of the Treaty Revision Movement (Gaiding xinyue yundong 改訂新約運動) and the adoption of ‘keeping good faith and pursuing harmony’ (Jiangxin xiumu 講信修睦) as the foreign policy principle. This research concludes that Sun, inspired by Confucian-Communist parallels, initially aligned with Soviet Russia but that later, under Chiang’s leadership, the KMT used “The Confucianisation of the Three People’s Principles” (Sanminzhuyi 三民主義) in its consolidation of a power shift towards the West and adopted Confucian principles to further legitimize its rule by promoting the New Treaty Movement.

Особенности применения принципа добросовестности в российском гражданском праве

This article is devoted to the consideration of the meaning and role of the good faith principle in Russian civil law. The good faith principle is one of the well-known and widely used principles in civil law of Russia. In the text, the positions of scientists and law enforcement practice using the good faith principle are considered, the approaches developed by domestic and foreign legal doctrine in relation to it are analyzed, the legal essence of the good faith principle is examined, and a theoretical and practical analysis of this legal concept is carried out. A small comparative legal analysis on this issue is also carried out. The author's contribution to legal research on the good faith principle in law is the systematization of the theoretical positions of legal experts on this topic, and in the course of it, the positions of scientists from different countries are explored. This study uses such scientific methods as analysis and synthesis, formal legal and comparative legal method. Based on the results of the study, conclusions are drawn regarding the essence and purpose of good faith as a civil law principle, a legal concept and the corresponding evaluation category. Also, a number of recommendations for law enforcement are given.

Good faith in employment relations – between standard and duty

The current Labour Code of the Republic of Moldova does not regulate the principle of exercising constitutional rights and freedoms in good faith. Exercising of these rights is complemented by the other dispositions contained in the labour legislation and, insofar as they are not incompatible with the specifics of the labour relations provided by the code in question, with the provisions of civil legislation. The civil legislation in the matter of good faith stipulates that this institution is a standard of conduct of a party, characterized by fairness, honesty, openness and taking into account the interests of the other party to the legal relationship. In the sense of the invoked principle, it is assumed that an employee exercising his rights at work fairly and honestly, must take into account the employer’s interests. However, in terms of the content of the legal employment relationship, the interests of the parties differ. The purpose of this paper is to analyse some aspects regarding the implications of the principle of good faith in the execution of employment contracts, a principle which is valid for the parties to employment contracts.