Legal Principles Research Articles

Corporate Liability for Environment Damage: A Critical Analysis of the Legal Dimensions and Principles

Corporate Liability for Environment Damage: A Critical Analysis of the Legal Dimensions and Principles

Implementation of Islamic Inheritance Law: Study of History, Law and Its Principles

Islamic inheritance plays a pivotal role in Islamic teachings, holding significant importance. Within certain Muslim societies, conflicts often emerge among heirs regarding the distribution of inheritance. Consequently, it becomes imperative for the Muslim community to comprehend the intricacies of inheritance in Islam. This study conducts a literature review to delve into the subject matter. The authors gather data through a comprehensive search of various books, articles, and scholarly works. The findings of the study elucidate the extensive historical practice of Islamic inheritance, dating back to pre-Islamic times and the revelation of the Qur'an. In the practical implementation of Islamic inheritance, it becomes essential to understand the legal framework, principles, and related aspects such as pillars, conditions, causes, and barriers.

Criminal Legal Steps to Stop the Irregular Migration in Hungary

Abstract From 2015, migratory pressures put a heavy burden on EU countries. In 2015, Hungary took a new approach by building a border fence and creating criminal legal rules to protect it. This study aims to assess these measures in the EU sphere. Our research was based on EU (frontex) and national (Prosecutor General’s Office information) data and assessed the Hungarian solution in the light of the migration policy of other Member States located along the main migratory routes. The data show: (1) the criminal law has no substantive effect, and (2) the law enforcement tools are effective. Moreover, the domestic data also show that Hungary is not consistent in its policy and has preferred law enforcement tools to criminal legal tools in the past few years, which violates the basic principles of criminal law: the principle of legality and the principle of ultima ratio.

Судебная доктрина баланса частных и публичных интересов в сфере предпринимательской деятельности

The domestic legal literature of different years reflects multiple approaches regarding the prevalence of private or public interests. A significant number of scientific works in recent years have been devoted to promoting the strengthening of the positions of legitimate interests of society and the state, nationalization, and the development of a multi-structure economy to replace the primacy of the market economy. However, the Constitutional Court of the Russian Federation, which should be outside of politics, and whose activities are aimed at protecting the foundations of the constitutional system and protecting the fundamental rights and freedoms of man and citizen, combines these approaches and simultaneously formulates a judicial doctrine of the balance of private and public interests in the field of business activity. The used category “judicial doctrine” allows us to move away from a purely scientific understanding of private and public interests in business and to approach practical issues, helps to identify methodological approaches that are characteristic of judicial practice, and establishes a connection with practice in a higher format of possibilities.

The EU Environmental Crime Directive 2024: A Revolution in EU Environmental Criminal Law?

Abstract On 11 April 2024, the European Union (EU) adopted a new Environmental Crime Directive (ECD) that departs from how the relationship between administrative law and criminal law has previously been defined in EU law. According to the revised ECD, a conduct shall be deemed unlawful when it is in ‘manifest breach of relevant substantive legal requirements’ – even when there is compliance with an administrative permit. With this, the new ECD has de facto created autonomous environmental crimes. This is revolutionary, as in most legal systems criminal liability is not possible if an operator complied with the conditions of a permit. This article argues that this legal development is welcomed as a way to ensure effective environmental criminal enforcement. The question that remains open, however, is how the concept of ‘manifest breach of relevant substantive legal requirements’ will be translated by the Member States during the transposition of the amended ECD into national law. It is argued that it is especially important to find a formulation that can be reconciled with the legality principle, requiring the conditions for criminal liability to be specified in a clear and specific manner whilst ensuring that environmental crimes are held to account.

Legalizing Bequests to Heirs in Egypt as a Legislative Application of Talfīq: towards a Purposive Interpretation of Article 37 of Law No. 71/1946

Abstract This paper tackles one example of interaction between state laws and social norms. It investigates the rationale behind the unprecedented legalization of bequeathing to heirs in Egypt that happened by the virtue of article 37 of law no. 71/1946. This article represents a legal rule that renegotiates a well settled matter in the Sunni jurisprudence based on an undefined common need that was alleged in the explanatory memorandum of this law. The paper investigates that common need through an originalist approach into the mentioned article then validates the output of that investigation by a review of relevant judicial rulings. As part of this originalist approach, the paper engages with the available data pertaining to the drafting process of law no. 71/1946, the key members in the drafting committee, and the parliamentary discussion on article 37 of the law. It also attempts a contextual reading for article 37 to understand its legal rationale and propose criteria for judicial enforcement that would maintain this rationale.

Правовое регулирование и этическое обеспечение научных исследований: взгляд через призму традиционных российских духовно-нравственных ценностей

The article attempts to consider possible directions of legal regulation and ethical support of modern scientific research, primarily biomedical research, from the standpoint of their compliance with traditional Russian spiritual and moral values. The necessity is justified on the basis of modern strategic planning documents to prepare a draft federal law (laws), which will become the basis for the formation of a corpus of legal norms that allow the development of science, research, taking into account the values, legal and ethical principles available in society. The author advocates the development of a socio-humanitarian expertise of high-risk scientific research, as well as innovations implemented on their basis in practice.

Основополагающие начала оперативно-розыскной деятельности: критический анализ содержания

The relevance of the problem discussed in this article is due to the need to ensure the principles of legality in the context of non-public activities aimed at negotiating with crime through the use of operational investigative tools. In particular, the structure of operational investigative activities is examined and their substantive inconsistency is argued. The novelty of the article was determined by the establishment of technical and legal shortcomings of the current legislation and the author’s proposals for eliminating existing problems

Legal principles of attracting budget funds and EU funds for the implementation of the «green» transition of the energy sector of the economy and the implementation of projects (programs) in the field of energy efficiency

Legal principles of attracting budget funds and EU funds for the implementation of the «green» transition of the energy sector of the economy and the implementation of projects (programs) in the field of energy efficiency

Правовая неопределенность и судебные доктрины как средство ее преодоления

The author explores the problems of uncertainty in science in general and in law in particular. The author concludes that the use of judicial doctrines in dispute resolution should be considered as a very promising way to overcome uncertainty in law, i.e. as a channel of transition from uncertainty to certainty in the process of law enforcement.

Баланс бюджета – идеал или архаизм?

The article is aimed at assessing the legal principle of budget balance from the standpoint of the feasibility of achieving budget balance in practice. The preference of a balanced budget is substantiated from the point of view of several factors (economic, legal and psychological), and an attempt is made to identify potential risks of a legal, political and social nature in conditions of systematic budget imbalance. The article is based on a meta-subject approach to the concept of budget balance and proposes to proceed from the need for a comprehensive assessment of this phenomenon.

Конструирование модели эволюции права как социокультурного феномена на материале средневековой Испании в контексте применения антропологического методологического подхода в правовой науке

Purpose. The author aims to create a model of the evolution of law as a Western European socio-cultural phenomenon based on materials of medieval Spain, where the formation and fundamental transformation of law occurred. The peculiarity of this model lies in the fact that the content component predominates over the chronological one. Methodology: to achieve this goal, the author uses the method of legal modeling within the framework of the anthropological methodological approach, which is considered to be one of the most promising in modern science. This approach allows for taking into account the features of human consciousness that creates, re-creates, and deconstructs socio-cultural phenomena, that exist both subjectively and objectively. Conclusions: In modern legal theory, there are two contradictory concepts. On the one hand, there is logocentrism, which represents rationalism as a foundation of the theory of knowledge. On the other hand, there is the idea that social reality contains an irrational element. This new perspective challenges the assumption that knowledge can fully reflect reality.This approach allowed us to create a model of the development of law in the context of Western European legal civilization, considering its socio-cultural aspect. The article demonstrates that the study of Law in higher educational institutions is based on an understanding that it is both universal, due to the unified psychophysiological nature of human consciousness, and individual, determined by cultural and civilizational characteristics. Scientific and practical relevance. The theoretical significance of the results is based on the possibility of applying the model developed in this study to other states, both within the Romano-Germanic legal family and in other regions. This approach allows for taking into account cultural differences while maintaining the universality of the model. The practical significance of this study lies in its potential to contribute to legal education by providing students with a deeper understanding of the evolution of normative systems and the factors that influence these changes. This knowledge could then be applied in various contexts, such as law schools and professional training programs to enhance the understanding and application of legal principles.

Criminal Law Policy against ‘Pratima’ Theft: Perspective of Balinese Customary Criminal Law

Law enforcement of the crime of Pratima theft in Bali does not provide a sense of justice for traditional law communities as victims. In response to this, it is necessary to construct law enforcement for the crime of Pratima theft to achieve a sense of justice, benefit, and legal certainty for the Balinese customary law community. This research method is sociological law (sociological jurisprudence), emphasizing the study of the operation of law in traditional law communities in Bali. The object of the study is the legal facts related to the crime of Pratima theft. Based on the research results, it was found that law enforcement prioritized legal certainty rather than social justice itself. The Balinese traditional law community desires fair and beneficial law enforcement. The provisions on the principle of legality in deciding pratima theft cases in Bali do not prevent the application of laws that exist in society. Judges should also apply customary criminal sanctions, thereby demonstrating that criminal law policies protect customary law communities. In imposing sanctions, the panel of judges is expected to be guided by the harmony of law enforcement objectives, based on local wisdom. The application of the Tri Hita Karana concept as local wisdom in customary criminal sanctions shows that criminal law policy provides a sense of justice and protects customary law communities as victims, and restores harmony in the lives of Balinese customary law communities.

Chagos in the South Pacific? The principle of self-determination and the France-Vanuatu dispute over the Matthew and Hunter Islands

Abstract The dispute over the Matthew and Hunter Islands (MHIs) has long been a constant strain on Vanuatu-French relations. The article examines this dispute in light of the Chagos Advisory Opinion and a few other cases concerning territorial disputes. It first submits that sovereignty over the MHIs had never been raised until 1962, when, at the occasion of a private claim, France and Britain, the two administering powers of the New Hebrides at that time, considered the issue. The two states reached an agreement in 1965, asserting that the MHIs were part of the French colony of New Caledonia and not the British-French Condominium of the New Hebrides. This article then considers the legal implications and lawfulness of the agreement, which did not take into account the local populations’ will. Although there are some important differences between the Chagos and MHIs disputes, mainly due to the fact that the MHIs are uninhabited, the applicability of the right of self-determination to both cases is nevertheless beyond doubt. The article contends therefore that the 1965 Agreement between France and Britain may constitute a violation of the right to self-determination of the people of the New Hebrides (Vanuatu), who were not consulted on the decision to attach the MHIs to the French territory of New Caledonia, and suggests that there may be, however, some other legal principles under international law that can come into play. Finally, the article contends that negotiated solutions could be a potential way forward for the parties involved.

THEORETICAL FOUNDATIONS OF SENTENCING FOR MULTIPLE OFFENSES

This article analyzes issues related to the theoretical foundations of sentencing for multiple offenses. The article also examines the unique aspects of sentencing, including the application of principles that exist simultaneously in various areas of law. Specifically, the article highlights the application of general legal principles (legality, equality before the law), criminal law principles (justice, humanism, democracy, culpability, etc.), as well as special principles of criminal procedural law (administration of justice exclusively by the court, implementation of justice based on equality of citizens before the law and the court, respect for the honor and dignity of individuals, etc.) in the sentencing process.

A Comprehensive Theological and Scientific Study of Gestational Surrogacy

With advancements in science and in response to the desire of childless individuals, surrogacy has emerged as a contemporary method of treating infertility. Intriguingly, due to its novelty, this topic has sparked considerable legal and jurisprudential debate. In essence, this medical procedure involves fertilizing a woman's egg with a man's sperm outside the womb. Subsequently, due to the woman's inability to carry the pregnancy, the embryo is implanted into another woman's uterus. Surrogacy, in fact, is a means for infertile couples to have a child. Through assisted reproductive technologies, an embryo created via in vitro fertilization is transferred to a gestational carrier, who carries the pregnancy to term and then relinquishes the child to the intended parents. In Iran, assisted reproductive technologies are employed when couples, or either partner, experience infertility. In these procedures, the sperm and egg of the legal and marital couple are fertilized in a laboratory, and the resulting embryo is donated to another legal and marital couple. A crucial issue in this context is the determination of the child's parentage, especially maternal lineage. Due to the silence of the law, this matter must be resolved by examining the Constitution of the Islamic Republic of Iran and relevant jurisprudential opinions, as well as the perspectives of legal experts. In this regard, determining the maternal lineage, which involves the biological mother and the gestational carrier, presents a challenge and requires further exploration. The conclusion of this paper is that, based on Quranic verses, hadiths, the principle of freedom of will, the intentions of the parties involved, the best interests of the child, customary practices, and legal principles, the gestational carrier is considered the legal mother of the child.

Analysis of State Policy Towards the Citizenship Status of Families Sympathizing with ISIS According to International Law

The importance of an individual's citizenship status has led the international community to establish several legal instruments related to citizenship status. The right to renounce citizenship is based on the principle that individuals have the right to determine their own citizenship, subject to the reasonable requirements of the laws of the involved states. This research method employs a qualitative approach, focusing on examining the application of legal norms and principles to legal theories and doctrines. This involves identifying the policies of various states regarding the citizenship status of families who sympathize with ISIS. Consequently, the research aims to formulate policy considerations of states concerning international legal provisions

손해배상에 관한 민법 개정 예비초안 검토

This article introduces and reviews the content of the preliminary draft prepared by the Civil Code Amendment Committee, established in June 2023. The focus is on the amendments related to damages in Chapter 1, Section 2 of Part III of the Civil Code, which deals with the effectiveness of obligations. Specifically, it examines the proposed revisions to Article 390 (Non-performance of Obligations and Damages), Article 393 (Scope of Damages), Article 394 (Method of Compensation for Damages), Article 396 (Comparative Negligence), Article 397 (Special Provisions for Monetary Debt Default), Article 398 (Liquidated Damages), and the newly proposed Article 395-2 (Reimbursement of Expenses). The primary perspective for this review is to ensure the continuity and connection of discussions on the amendment of the Civil Code by comparing it with the 2004 amendment proposals and the 2013 revision draft. Additionally, in order to enhance the efficiency of the discussions, the review will focus on the modifications in the preliminary draft compared to previous amendments, as well as the alternatives proposed by the review committee. This review will be conducted with reference to domestic legal theories, precedents, and foreign legislative examples from a legislative standpoint. From a practical perspective, the most crucial aspect of the current Civil Code revision is to codify established doctrines and case law to prevent further interpretive disputes and clarify legal expressions. Particularly, as in the case of the preliminary draft concerning the regulations on damages, where the abstract nature of the Civil Code provisions has led to the resolution of cases through interpretation, codifying established case law can enhance predictability. However, in the process of codifying case law, it is necessary to consider whether such codification may hinder the development of legal principles through interpretation by fixing the doctrines in a manner that could affect the future evolution of legal theories and case law.

Enhancing Professional Awareness of Informed Consent : Safeguarding the Rights of Patients and Practitioners.

Informed consent is a crucial communication process between doctors and patients for obtaining patients' approval before initiating medical treatment. It is derived from the legal principles of medical contracts and requires doctors to explain the treatment process to patients. Surgeons should be aware of informed consent not only to avoid unnecessary litigation risks but also to provide patients with the right to self-determination. The aim of the study is to help surgeons in Korea understand the legal doctrine on informed consent for practical application. This article reviews the legal doctrine of IC according to 4W1H-why, who, what, when, and how-with judicial cases to communicate effectively with patients in clinical settings. Regardless of seniority or rank, doctors may provide competent patients with information to protect their rights to self-determination. Informed consent should be advanced for patients to consider, discuss with significant others, and determine whether or not to undergo medical treatment. At that stage, patients need to be informed of the necessity, risks, and so on. The most common method of informed consent is an oral explanation utilizing certain forms for documentation. However, the informed consent of patients can be exempted on certain occasions. Optimal informed consent, when implemented, leads to patient-centered care, which significantly improves patient satisfaction and outcomes. Ultimately, it not only protects doctors from litigation risks but also upholds patients' autonomy.

Legal Nature and Classification of Smart Contracts in Crypto Exchanges: Challenges to Traditional Contract Law

This paper examines the legal nature and classification of smart contracts within the context of cryptocurrency exchanges, exploring the challenges they pose to traditional contract law. As blockchain technology continues to evolve, smart contracts have emerged as a novel form of agreement execution, blurring the lines between code and legal obligations. This study analyzes the unique characteristics of smart contracts, including their self-executing nature, immutability, and decentralized structure, and how these features interact with established legal principles. The research investigates the potential gaps in current legal frameworks and the difficulties in applying traditional contract law concepts such as offer, acceptance, consideration, and breach to smart contracts. Furthermore, it explores the jurisdictional and enforcement issues that arise in the decentralized and borderless realm of crypto exchanges. By synthesizing legal theory, technological understanding, and practical implications, this paper aims to contribute to the ongoing dialogue on how to effectively regulate and integrate smart contracts into existing legal systems, while addressing the specific challenges they present in the dynamic landscape of cryptocurrency exchanges.