Legal Principles Research Articles

Medical Negligence by Postgraduate Students and Residents: The Liability Trail.

Postgraduate students or physicians in training are bound to make mistakes. In medical negligence litigation involving the postgraduate students, the supervising faculty members as well as the hospital where the alleged act has occurred could also be found liable. In this review article, the applicable legal principles and a brief summary of the case laws are presented.

A Comparative Analysis of Arbitrability in French and English Law: Implications and Implementation Strategies for the Legal System of Rwanda

Arbitrability is a cornerstone concept in the field of arbitration. Yet, its nuanced characteristics introduce a plethora of complexities and challenges. The concept has been subject to a series of scholarly debates leading to the emergence of six distinct definitions. Each of these interpretations underscores a specific facet of arbitrability, illustrating its intricate and multifaceted essence. The diversity in perspectives accentuates the need for a comprehensive and detailed exploration. To uphold the rigour, flexibility and standards of international arbitration, it is crucial to ensure that the interpretation and application of arbitrability remain robust and adaptable.The enactment of Rwanda’s Arbitration Act in 2008 represented a notable advance in the establishment of a comprehensive and resilient arbitration structure inside the nation. Nevertheless, the evident absence of clarity about the notion of arbitrability presents significant difficulties, particularly when contemplating the aspirations of the Kigali International Arbitration Centre (KIAC) to establish Rwanda as a prominent international centre for commercial arbitration on a worldwide scale. The presence of ambiguity in the interpretation and application of arbitration agreements is likely to to result in diverse interpretations and discrepancies in Rwanda. The potential for unforeseen legal complications arising from this unpredictability may deviate from the fundamental objective of arbitration, which is to provide parties with a prompt, effective, and mutually satisfactory method for resolving disputes.There may be salvation, however, to be found in the rich legal fabrics of both the English and French legal systems. The English system, renowned for its rigorous legal principles and vast jurisprudential precedent, offers an abundance of clarity on arbitrable matters. It is important to show that these well-established guidelines could serve as key examples for Rwanda to build upon. In contrast, the French system, characterized by its broad, pro-arbitration approach, provides insights into marrying flexibility with legal clarity. The amalgamation of the strengths of both legal systems could offer Rwanda a roadmap to refine its own arbitration framework. Exploring and embracing elements from these advanced legal frameworks offers Rwanda a pathway to refine and clarify the vague areas within its 2008 Arbitration Act. Such steps promise to bolster the effectiveness and foreseeability of KIAC’s activities. Crucially, by actively seeking to align its arbitration mechanisms with globally accepted standards, Rwanda will be poised to elevate international confidence in its arbitration landscape, marking its commitment to arbitration excellence on a global stage.

Space and the return of Rome

Rapid development and increased human impact in outer space has necessitated space sustainability strategies. To protect the continued use of outer space and celestial bodies, policy makers and scholars have proposed and attempted to manage the domain through a variety of mechanisms e.g. treaty formulation, cooperative engagement/assertion, adherence to the Common Heritage of Mankind principle (CHM) and International Law. However, despite nearly 65 years of space activity, questions about how the domain is defined and how sovereignty is applied remain, with commonly used terms being controversial and imprecise. By examining fundamental concepts and early legal principles applied to modern shared resources, we can better understand both the essential attributes and development of the space domain. We assert that the principles of res nullius and res communis can be used to both define shared resource domains and measure their operational development. We understand these principles not as distinct categories, but as a continuum, upon which all shared resource domains lie, thus presenting an alternative framework for describing the shared domain.

The general scientific approaches to the determination of the principles of civil law

The paper discusses general scientific approaches to determining the principles of civil law. The civil law of Ukraine is characterized by a number of factors, among which an important place is occupied by the principles unique to it. Ensuring stability, legality and justice in civil legal relations, the principles of civil law play an important role in the legal system of any legal state. They determine the essence of the relations themselves and their social orientation, without which uniform law enforcement is impossible. At the same time, those studying general scientific approaches to the definition of the principles of civil law should note that legal science has not developed a single name for this legal category (Ukrainian researchers use different terms: "principles of law", "legal principles", "fundamental ideas", " principles", "guidelines", etc.), nor a unified approach in the aspect of its interpretation of the concept. The principles of civil law in their general scientific context should be understood primarily as its guiding ideas, initial provisions. At the same time, in a narrow sense, the principles of civil law are the legally defined principles of civil legal relations (clearly prescribed in Article 3 of the Civil Code of Ukraine: inadmissibility of arbitrary interference in the sphere of a person's personal life; inadmissibility of deprivation of property rights, except in cases established by the Constitution of Ukraine and the law; freedom of contract; freedom of business activity, which is not prohibited by law; justice, good faith and reasonableness"), in general, the principles of civil relations, which are not only contained in legislation, but also developed by judicial practice and doctrine. We are supporters of the second approach. Since, in general, the principles are the main ideas that form a certain branch of law, reflect the needs and values of society, transform, interact with other legal phenomena, revealing a new law enforcement potential. These are the original guiding rules that in a concentrated form determine the essence of law, its content and purpose in society, express the direction of legal regulation and apply to all subjects of law.

Legality and Proof of Unwritten Agreements from a Civil Law Perspective

Introduction: Making agreements in Indonesia can be done in written and unwritten form. This is in accordance with the principle of freedom of contract in the Civil Code. Unwritten agreements are also very often carried out in the business world because they are more efficient. However, unwritten agreements are problematic because they are very difficult to prove in civil court.Purposes of the Research: There are 2 (two) objectives in this research, namely first, to analyze the legal strength of unwritten agreements from the perspective of civil law books and second, to analyze evidence in civil courts for cases of breach of contract in unwritten agreements. Then to find the right legal solution in resolving default problems in civil court.Methods of the Research: The research method used in this research is normative juridical. This method uses literature study techniques. The type of data used comes from primary data, namely the Civil Code and legal principles, namely freedom of contract. then the secondary legal material used is in the form of previous research articles which examine the validity of unwritten agreements.Results of the Research: Based on the research results, it was found that unwritten agreements have binding legal force. However, in reality it is very difficult to prove it in court because evidence in civil law comes from written letters. Therefore, the solution that can be offered is the need for preventive and repressive legal efforts.

ANALISIS KRITIS PENGEMBANGAN KAWASAN TERPADU DI BUMI SERPONG DAMAI (BSD) DALAM PERSPEKTIF PROYEK STRATEGIS NASIONAL

The aim of this research is to analyze the development of an integrated area in Bumi Serpong Damai from the perspective of a national strategic project, in relation to land law, the authority of state control rights (HMN) and examine the policies, regulations, management, supervision and impact of control of the area from the verklaring domain side. The research method used is normative juridical where an approach is based on primary law by examining theories, concepts, legal principles and related laws and regulations. The theory used is the Theory of Corporate Social Responsibility. The research results show that the development of the Bumi Serpong Damai integrated area is in accordance with the state's goals, namely the welfare of its people, which is also organized in a strategic government project and is also related to agrarian law. In its implementation, no fraud was found by stakeholders

Evaluation of the Regional Head Age Limit Policy in Indonesia After the Supreme Court Decision Number 23 P / HUM / 2024

This study evaluates the regional head age limit policy in Indonesia following the Supreme Court Decision Number 23 P/HUM/2024 through a normative juridical analysis. The age limit policy, governed by Law No. 10 of 2016, aims to ensure capable leadership by imposing a minimum age requirement for candidates. However, the Supreme Court's decision raises questions about the policy's alignment with constitutional principles of equality, non-discrimination, and democratic participation. The analysis examines statutory regulations, legal principles, and comparative insights from other democratic countries to understand the policy's rationale and implications. Findings highlight the need for a balanced approach that ensures legal consistency and promotes inclusive, effective regional governance. Recommendations include lowering the minimum age requirement, implementing a flexible age range, and incorporating empirical evidence to refine the policy, ensuring it serves the principles of justice, democratic participation, and effective governance.

The International Law Dilemma of Autonomous Weapon System

This paper aims to highlight the potential for serious humanitarian disasters caused by the rapid development of autonomous weapons systems, as they are currently unable to fully grasp the ability to analyze their targets and clearly distinguish between combatants and military targets due to current technological limitations. There is also controversy over whether autonomous weapons systems are combatants, and there is a certain degree of regulatory deficiencies in the field of international law. Existing international treaties are unable to perfectly regulate autonomous weapons systems and punish unlawful behavior. The paper mainly uses the method of analyzing specific problems based on legal principles and draws conclusions by referring to some cases. The conclusion of this paper is that the international community needs to establish a new, targeted international legal treaty, establish a more reasonable and realistic international soft law, establish and improve a broader international exchange system, and encourage countries to work together to solve this problem.

Contextualization of Polygamy Law; Justification of Islamic Legal Principles against Positive Regulations in Indonesia

Ideally, polygamy law in Islam sets a maximum limit of four wives, requires the husband to act justly, and considers material and emotional factors, as stipulated in the Qur'an. However, in reality, there are differences in the implementation of the law in Indonesia. Law No. 1 of 1974 does not limit the number of wives, while the Compilation of Islamic Law (KHI) limits it to four wives and requires the wife's consent, which must be proven in court. These differences reflect a discrepancy between Islamic legal principles and current positive regulations. This article aims to provide a deeper understanding of the differences between polygamy law in Islam and positive regulations in Indonesia. This research uses a comparative approach with a literature study method to analyze and compare Islamic legal principles with positive regulations in Indonesia related to polygyny. The results show that over time and with changes in the state system, the contextualization of polygamy law has undergone justification and rationalization, leading to significant changes in its application.

The legal basis fot the application of patent waiver settlements in the covid-19 pandemic

Background: The research on the role of the World Trade Organization in solving the vaccine patent waiver problem related to the 2019 coronavirus disease pandemic will address each issue one by one. Seeing the waiver applications that were made from the end of 2020 to 2022, it is necessary to further study the legal basis and enforcement of patents. Coupled with its relation to public health and equality for the global world to achieve. This study aims to provide an understanding of the role of the WTO in the patent waiver application process and the continuity of current and future patent law enforcement. Method: This research is a normative research with a descriptive method that will explain with the aim of obtaining a description of the events of the patent waiver application. The data that has been obtained will be analysed qualitatively. Conclusions will be obtained from various descriptive data collected from primary and secondary sources that have been analysed. In this regard, this research will be descriptive-analytical in nature which will reveal existing regulations and their implementation. Findings: The results of this study are that the WTO has carried out its roles and functions in accordance with applicable international legal instruments. However, this research emphasises further on the principles of the WTO itself which emphasises justice for developing and less developed countries on the other words called Special and Differential Treatment of Developing Countries (SDT). Coupled with the existence of the Doha Declaration which should emphasise that public health should take precedence over intellectual property rights, including patents. Conclusion: Regarding the WTO's role in resolving vaccine patent issues during the COVID-19 pandemic, it can be concluded that the actions taken by the WTO, including its internal bodies and councils, adhere to applicable legal principles and the TRIPs Agreement. However, the decisions must fully align with the WTO's principles, particularly the Special and Differential Treatment of Developing Countries (SDT). Novelty/Originality of this study: This study analyzes the role of the WTO in resolving vaccine patent issues during the COVID-19 pandemic, focusing on the SDT principles and the Doha Declaration. It reveals the gap between international law and global health needs, offering a framework for balancing intellectual property rights with public health needs.

Indonesian Law and Artificial Intelligence: Balancing Accountability, Ethics, and Innovation

Artificial intelligence (AI), which includes computing for perception, cognition, and action, raises complicated legal issues. This research investigates AI’s influence and legal implications, focusing on its autonomy in communication and creativity, which raises problems about language, intellectual property, and ethical accountability. Discussions differ depending on whether they are influenced by the Common Law or Civil Law systems. While Common Law defines AI as “computer-generated work,” Civil Law tends to see AI as a legal thing. This research aims to formulate a solid ground for an AI legal framework in the Indonesian national legal system. The research undertaken involves a thorough analysis of academic literature, focusing on the legal and ethical implications of AI, highlighting the need for a nuanced perspective to define its subjectivity. In conclusion, the complex interplay between artificial intelligence (AI) and legal principles involves reframing old terminology. Existing models for AI duty are called into question, and vicarious liability is one possible answer. AI is a derived law problem, so it needs to be carefully calibratedfor responsible innovation while also keeping ethics and technological progress in check.

E-contract Consensus in Indonesian Contract Law

Introduction: In the era of Society 5.0, the use of IT in implementing agreements in Indonesia is inevitable. The development of e-contracts, becoming increasingly necessary in society, is demanding the business world's attention. Particularly in Indonesia's Treaty Law, the concept of consensual e-contracting emerged, suggesting that even in the absence of direct meetings, parties could still realize an agreement through the e-contract. Purposes of the Research: This study aims to analyze and describe the existence of e-contract consensus in contract law in Indonesia from the point of view of contract theory. Methods of the Research: This specific type of investigation is doctrinal law research, which endeavors to uncover the truth by employing legal principles, foundational doctrines, and doctrinal law as supporting material. This work utilizes an inductive methodology, first presenting specific assertions and then drawing a general conclusion from them.Results of the Research: One of the legal prerequisites for an agreement is consensus. The study's findings indicate that legislative regulations in Indonesia have incorporated e-contract consensus into contract law. We apply Uitings theory, Verzending theory, and Ontvangs theory as agreement theories to determine the existence of e-contract consensus. The legislation contains provisions that specifically address the maintenance of electronic transactions. In general, it establishes that an electronic transaction has taken place when the parties to an electronic contract (e-contract) issue a statement of acceptance of an offer.

ANALISIS HUKUM MENGENAI TATA KELOLA PAJAK BUMI DAN BANGUNAN PERKOTAAN DAN PERDESAAN DALAM RANGKA PEMBANGUNAN DAN KESEJAHTERAAN MASYARAKAT DESA

This study aims to learn about and analyze legal studies on rural and urban land governance and building tax in the context of development and well-being of rural communities and to know the role of information technology in the management of rural and urban areas of the United Nations in order to improve community obedience and discipline of the tax system. The method used is to make the field of legal science the foundation of its mother science, so the research used is normative legal research. The results showed that the Rural and Urban Property and Construction Tax (PBB-P2) should be collected on the basis of laws and regulations from the top to the implementing regulations, namely village regulations and information technology optimization, as it plays an important role in the management of the Rural and Urban Property and Real Estate Tax (PBB-P2). In terms of increased public obedience, information technology can be used to facilitate and speed up the tax payment process. For this reason, it is important to guide UN-P2 governance to village governments on the basis of fair and transparent legal principles, in order to foster the development and well-being of rural communities.

The Implementation of Waqf Law within the Framework of Indonesia's Legal State: An Analysis of Pancasila Values

This study aims to explore the preservation of waqf in Indonesia, which plays a crucial role in supporting social welfare and community development, while considering Pancasila as the state ideology. The research seeks to analyze how Islamic legal principles are integrated into waqf preservation in relation to Pancasila values and to understand the interaction between these two value systems within the national legal framework. The study employs a qualitative analysis method with a literature review approach. Data is gathered through an examination of relevant laws and government regulations, as well as fatwas and guidelines concerning waqf and pancasila. The analysis focuses on evaluating the connection between Islamic principles related to waqf preservation and the implementation of Pancasila values within the Indonesian legal system. The research aims to identify and explain the relationship between Islamic legal principles regarding waqf and Pancasila values and to assess how Pancasila values support and enhance the preservation of waqf in Indonesia. The findings reveal that Pancasila values, particularly the principles of social justice and humanity, align with Islamic principles in the preservation of waqf. Pancasila serves as an ethical framework that supports fair and transparent waqf implementation, ensuring that waqf not only complies with Islamic law but also contributes to sustainable social welfare. The study also identifies that integrating Islamic principles with Pancasila values in waqf management can improve the effectiveness of waqf preservation and strengthen the legal and social foundation in Indonesia.

GOVERNMENT ASSIGNMENT OF CONTRACTS TO STATE-OWNED ENTERPRISES TO PROVIDE INFRASTRUCTURE: INDONESIA’S EXPERIENCE

This paper aims to evaluate the peculiarities of a mechanism utilised by the Indonesian government to conduct infrastructure development, that is, the government’s assignment of contracts to state-owned enterprises (SOEs). This mechanism differs from public procurement or public-private partnership. This paper raises three questions: (1) What are the advantages and disadvantages of employing government assignment of contracts to SOEs? (2) What should be done to prevent the disadvantages? and (3) What lessons can be learned by other countries from the Indonesian experience? This paper employs qualitative legal research. It starts by analysing public satisfaction and dissatisfaction as reflected in the news, literature and interviews. The legal causes of dissatisfaction which are basically the problematic regulations, are then analysed. Finally, the legal principles and legal concepts enshrined within the regulations are examined to seek legal solutions. The advantages of the government’s assignment of contracts to SOEs are to simplify the tender process and to enable the government to quickly provide infrastructure. Nonetheless, the private sector feels aggrieved because the regulations that dictate when a project may be contracted to an SOE are unclear, and public funding is predominantly circulated among the SOE groups. To address these problems, the government should adhere to the globally recognised principles of equality and accountability and the concepts of competitive neutrality and the right to development. The bittersweet Indonesian experiences maybe not only the refinement of the Indonesian law and policy, but also their use as food for thought for any country considering infrastructure development.

Legal Analysis of the Consumer Protection Law in the Promotion of Alcohol with Ethnic and Religious Elements by Holywings on Instagram

Promotional efforts are crucial to a company's marketing strategy. However, Holywings' promotion offering free alcoholic beverages to individuals named Muhammad and Maria violates Law Number 1 of 2024 on electronic information and transactions, specifically Article 28, paragraph 2. This article prohibits spreading information that incites hatred or enmity based on ethnicity, religion, race, and inter-group distinctions (SARA). This research analyzes promotion regulations under this law and the responsibilities of businesses concerning promotions involving ethnic and religious elements, as outlined in Law Number 8 of 1999 on Consumer Protection. Using a normative juridical approach, this study examines literature, secondary data, and statutes to address the legal issues. The research employs qualitative analysis to systematically gather and analyze data, aiming to compile relevant theories, concepts, legal principles, and regulations. The result indicate that legal protection for consumers regarding promotions with ethnic and religious elements is upheld by Article 4, letter g of the Consumer Protection Law, ensuring fair, honest, and non-discriminatory treatment. Additionally, Article 17, Paragraph 1, Letter f prohibits business actors from engaging in such advertising, while Articles 19 and 20 outline their accountability.

Peran Hukum Pidana dalam Pencegahan Kekerasan Seksual terhadap Anak: Tinjauan terhadap Kebijakan dan Implementasi di Indonesia

Children are important assets for the nation and state, especially the next generation. Every child has the same human rights as humans in general. Children's rights have been neatly regulated in positive legislation in Indonesia in the form of protection from various crimes so that their rights are not violated, considering that there are so many cases of crimes experienced by children, especially criminal acts of sexual abuse. The law is required to be able to pay special attention to the interests of children, in this case it can overcome acts of sexual violence that are experienced by many Indonesian children. The Sexual Violence Law No. 12 of 2022 is an addition to the new government regulations that need to be studied more deeply with the aim of helping to fight sexual crimes. This research discusses a deeper study of the role of criminal law in acts of sexual violence against children using normative juridical research with an approach to theories, concepts, legal principles, and legislation. The role of Criminal Law in preventing sexual violence covers several aspects, including protection from government agencies, criminal responsibility, and ensuring law enforcement.

Analisis Dampak Adanya Dissenting Opinion Hakim Terhadap Perkara Perdata

The justice system faces challenges when dealing with different opinions in a case, especially when there is a minority or dissenting opinion. This phenomenon is fascinating in the context of the Denden Verzet case, especially in case No.12/Pdt.Bth/2020/PN.Kla Jo.78/PDT/2020/PT.TJK. Therefore, this research aims to analyze the dissenting opinion in-depth in case No.12/Pdt.Bth/2020/PN.Kla Jo.78/PDT/2020/PT.TJK, to understand the decision in civil case No.12/Pdt.Bth/2020/PN.Kla who has a dissenting opinion and its impact on the legal decision. The type of research used is normative legal research, namely legal research regarding the actual application or implementation of normative provisions in every particular legal event in society. The type of research is descriptive, which is to explain or describe clearly and in detail regarding the clarity and implementation of a regulation. After conducting research, it was found that dissenting opinions can significantly impact civil case decisions. First of all, the existence of a dissenting opinion can raise doubts about the legal strength of the decision. The parties who lose the case can use the dissenting opinion as a basis for filing an appeal or cassation, arguing that the majority decision does not fully comply with applicable legal principles. This can prolong the legal process and increase legal uncertainty for the parties involved. This is evidenced by the change from the decision of the CourtCourt of First Instance to the decision of the Court of Appeal, where the legal considerations at the appellate level are the same as the thoughts of the Dissenting opinion of the judge of the Court of first instance because according to the High Court the Disputants have proven the arguments of their rebuttal in the main case, namely has fulfilled the requirements to be declared a correct Objector so that the objection in the leading case must be granted.

RECONCILING CONSTITUTIONAL RULES AND INTERNATIONAL LAWS: A DOCTRINAL STUDY ON THE INNOVATIVE ROLE OF CONSTITUTIONAL RECONCILIATION IN IRAQ AND EGYPT

This research employs a doctrinal study methodology to investigate the conflict between constitutional rules and international rules,emphasizing the emerging jurisdiction of constitutional reconciliation. Through case studies in Iraq and Egypt, the study seeks to identify crucial criteria for addressing conflicts within the legal framework. A systematic analysis of legal principles, precedents, and existing literature provides a comprehensive understanding of the intricate dynamics involved in resolving conflicts between constitutional provisions and international rules. The research delves into nuanced conflicts arising in the absence of specified applicable laws in constitutional provisions, particularly where international treaties intersect with or deviate from domestic legislation. It aims to elucidate the mechanisms employed by domestic judges, utilizing constitutional reconciliation, when confronted with conflicts between provisions in domestic law and those in treaties. The central inquiry focuses on determining the prevailing legal framework—domestic law or international treaty—with constitutional reconciliation emerging as a novel jurisdiction to rectify such conflicts. In addressing the conflict between constitutional rules and international rules, the study aims to develop an effective resolution mechanism, underscoring the importance of constitutional reconciliation to harmonize international law with domestic legal frameworks. Grounded in a comprehensive understanding of international law regarding the authority of constitutional judges, the analytical method is complemented by the doctrinal study. By integrating the jurisdiction of constitutional reconciliation into the methodology and employing Iraq and Egypt as case studies, this research contributes to a nuanced comprehension of how constitutional judges can navigate and harmonize the interplay between domestic and international legal frameworks. This approach ensures the preservation of both sets of rules without compromising either, advancing our understanding of the complexities involved in addressing conflicts between constitutional and international rules through the innovative lens of constitutional reconciliation.

The principle of stare decisis in the judicial proceedings of Ukraine and legal systems of the world

It The article analyses the origins and essence of the stare decisis principle, examines its specific features and formulates its concept. It is substantiated that the principle of stare decisis is a primary principle of procedural law by its structure, which has a cross-sectoral nature and is applicable in court proceedings regardless of the jurisdiction (administrative, criminal, civil, etc.) of the court, addresses the judiciary (not other participants in the court proceedings) with a mandatory requirement to adhere to the legal position formulated in previous relevant court decisions in new court decisions in order to ensure the unity and consistency of judicial practice, its certainty and predictability, which makes it possible for the subjects of legal relations to adjust their legally significant actions (activities) in the future. The authors makes a comparative analysis of the principle of «stare decisis» in the AngloAmerican and Romano-Germanic legal systems. It is proved that this principle in the Anglo-American legal system is interpreted in the sense of «to stand on what is set by the court», and in the Romano-Germanic legal system – «to stand on what is set by law». The authors argues that a court decision is always related to the resolution of a dispute, but in the Anglo-American legal system, a court dispute is related to law, and in the Romano-Germanic legal system, it is related to a violation of law. The effect of the principle of stare decisis in the Anglo-American legal system is manifested in the rule: «precedents are not overruled», even if they are outdated, they still remain in force. In fact, the same rule applies in the Romano-Germanic legal system, because the legal positions set out in the decisions of the Supreme Court are also not cancelled, but rather «departed from» by the court. In the Anglo-American legal system, the principles of law are embodied («live») in judicial doctrine and precedents, which activates judicial rule-making, while in the Romano-Germanic legal system, the principles of law are objectified in legislation, so the principles of law actually become legislative norms, which reduces the discretion of judicial discretion in this legal system. The authors concludes that the principles of law do not adapt to social relations; on the contrary, legislative norms are developed, grouped and adjusted in accordance with the requirements and content of the principles of law. Key words: stare decisis principle, judicial proceedings, principles of law, legal systems of the world, constitutional mechanism of the state, constitution of the state, sources of law, Roman law, judicial precedent.