Juridical Concept Research Articles

Legal Study of the Appointment of Regional Head Officials from TNI/Polri Officials

This research aims to find out the legal rules related to the appointment of Acting Regional Heads from TNI/POLRI High Officers. The proposal to appoint active high-ranking TNI/PORI officers as Acting Regional Heads by the Ministry of Home Affairs has drawn polemics. The method used in this research is qualitative research through a normative legal approach, namely an approach that uses positivist juridical conceptions. The data collected is by using literature studies, scientific articles, legal expert opinions, and other legal sources. The data that has been obtained is then analyzed using qualitative analysis methods. Based on the research results obtained in this study, the following conclusions were drawn: (1) The appointment of Acting Regional Heads from TNI/POLRI elements is contrary to Article 109 Paragraph 2 of Law Number 5 of 2014 concerning State Civil Apparatus, which states "TNI/POLRI can fill high leadership positions after resigning from active service if needed and in accordance with the competencies determined through an open and competitive process." (2) The impact of the appointment of TNI/POLRI officials as acting governors basically violates the provisions of the Pilkada Law and also the State Civil Apparatus Law itself, besides that the appointment is also a setback for the continuity of Indonesian democracy that has been running so far.

Kekerasan dalam Rumah Tangga: Konsekuensi Hukum dan Perlindungan Korban

Recently, TV stations and social media were enlivened by news about domestic violence (KDRT) committed by artist FI against his wife who is also an artist named VM in a hotel in East Java. Previously, domestic violence among fellow LK artists was also horrified who experienced violence perpetrated by RB and this case ended with recovery and revocation of the police report. On social media, the viral video of domestic violence experienced by a child from his father, a businessman named RIS, has been determined as an allegation of a report from his wife after the examination and case title. Domestic violence against children which shocked the Indonesian public occurred in 1984 which was experienced by 7-year-old AH who died after being abused by his own biological father and mother. The South Jakarta District Court found Saya guilty and was sentenced to 5 years in prison while his wife S was sentenced to 3 years in prison. This research method uses a type of normative legal research that is carried out or focuses on positive legal norms in the form of laws and regulations with an empirical juridical approach by reviewing normative or juridical concepts regarding the implementation of legal protection for victims of domestic violence (KDRT) who are victims of crime. The conclusion of this study is that the reasons for the occurrence of acts of physical violence within the household (KDRT) by husbands against wives and/or children: infidelity factors, economic factors, psychological factors and the nature of the husband, educational factors, third party factors (family) and legal consequences due to acts of physical violence within the household (KDRT) by husbands against wives and/or children can be carried out through non-litigation through P2TP2A and Komnas Perempuan while handling litigation through police reporting.

THE RESPONSIBILITY OF THE NURSE IN TEAMWORK

Since the very beginnings of the role of the nurse, this profession has undergone notable changes thanks to a structured framework of normative as well as formative development which has meant that nursing has become an intellectual and autonomous role requiring in-depth subject knowledge and competencies. Within the Italian healthcare system and elsewhere, the nurse is a crucial figure, an integral and integrated part of the professional healthcare teams whose responsibilities require a deeper awareness and knowledge of their role. In order to gain better understanding, it is essential to look at the historical evolution and see how nursing has gone from being considered ‘manual’ work, to what it is today - a highly-skilled, socio-professional role, with all the qualifications, competencies, autonomous decision-making powers and responsibilities that such a role demands - whether dealing with patients, or within the healthcare teams. It follows therefore that such ‘intellectual professionals’ must necessarily be fully aware of their professional responsibilities, and that these must be properly assimilated, also with regards to juridical concepts of responsibility. Although this report is brief, I sincerely trust that such a personal and hermeneutical approach may encourage all within the profession to put into practice and continually improve upon the fundamental principles that are in place to ensure the health and wellbeing of the patient.

Pragmatism, Logic, and Law

Pragmatism, Logic, and Law

“DNA Evidence and the Islamic Law of Paternity in Light of Maqāṣid al‐Sharīʿa”

AbstractThe protection of progeny (nasl) is one of the five universal ends (al‐maqāṣid al‐kulliyya al‐khams) of Islamic law. Despite this principle, classical Islamic law (fiqh), with very limited exceptions, barred affiliating a child conceived through illicit intercourse to the child’s biological father, even if his identity was known. Was this based on a pragmatic recognition of the impossibility of identifying the “true” biological father of any child or a commitment to a deeper principle? If the former, the reliability of DNA testing would require a change in the rule, but if the latter, DNA’s reliability would be irrelevant. Using primarily examples drawn from the Mālikī school of law, this paper argues, based on a purposive reading of those rules, that biological paternity, while important to Islamic law’s juridical conception of paternity, was not always the most important legal value at stake. Rather, preserving a child’s presumptive affiliation to the mother’s legitimate sexual partner was also a crucial legal value that could carry greater weight than biological paternity when the two conflicted. The tendency to entrench the biological mother’s legitimate sexual partner as the child’s lawful father in all but the most obvious cases of adulterous conception suggests that for pre‐modern Islamic law, the best interests of the child weighed heavily in the law of paternity. In modern circumstances, therefore, DNA evidence of biological paternity, while it should be admissible to establish paternity of illegitimate children born to unmarried women, should not be admissible in cases involving children born to married women. Muslim states could also use DNA evidence of paternity to establish the monetary responsibility of adulterous fathers for their illegitimate children while denying them the benefits of legal paternity. Muslim states, in recognition of the importance of the well‐being of the child, might also reconsider their laws on adoption, by introducing distinctions between adoptive parents and children, on the one hand, and parents and children related by nasab, on the other hand.

Interdependencies between achievements of continental private law and common law as illustrated by the good faith criterion in contracts

The growth in prominence of the good faith standard in contract law under different common law jurisdictions informs an advanced research on to what extent the juridical concepts characteristic of the civil law framework may impact the Anglo-American legal sphere. This course of development can be exemplified by the recent debate in English law over the acceptance of a general requirement of good faith in contract performance. Of particular importance is the latest explanation advanced by a part of the English judiciary, leading towards the recognition of an implied good faith duty in relational contracts. Given that the absence of an overarching duty to act in good faith is considered to be the factor that markedly distinguishes English law from civil legal systems, an enquiry into the underpinnings of such a change of position is warranted with a view to providing further insights into the interdependencies between the two legal traditions. Confronting the evolving perception of good faith under common law with the juridical experience of continental private law shall contribute to reviewing from an enhanced, cross-jurisdictional perspective the system of value-laden general clauses and standards in contract law.

Perlindungan Hukum Terhadap Pelaku Usaha Penanaman Modal Usaha Industri Beralkohol

The legal vacuum occurred before the enactment of a replacement regulation regarding new investment in the alcoholic industry, until the ratification of Presidential Regulation Number 49 of 2021, especially on the issue of the validity of regulations and legal protection for investment business actors, for this reason it is necessary to analyze how legal protection is for business actors and legality of investment regulations in the alcoholic industry after the amendment of Presidential Regulation Number 10 of 2021 through normative juridical research, legal approaches and concepts. Based on the research results, the legal protection of business actors is based on Law Number 8 of 1999 concerning Consumer Protection. Legality of Investment is legal, based on Law Number 25 of 2007 concerning Investment, but new investment in the alcoholic industry is not reopened based on Presidential Regulation Number 49 of 2021 concerning Amendments to Presidential Regulation Number 10 of 2021 concerning Business Fields Capital investment.

Comparative analysis of the principles of Civil Procedural Law and Ecclesiastical Procedural Law in Romania

Principles represent general rules, basic concepts, which serve to underpin and prepare the legal framework for the development of a complex trial or synthesize a social and juridical experience, thereby assuring a balance and a relation between the rights and the obligations of a person and of society as a whole. The principles of civil procedural law manifest themselves in the form of basic juridical concepts. These determine the forms and methods of juridical regulation of procedures for examining and resolving litigation brought before the civil courts. The fundamental canonical principles of Orthodoxy are comprised, on the one hand, of the universal constitution of the Church, mirrored in the collection of holy canons, and on the other hand, of the Church’s long and constant practice and tradition, become canon law custom. These principles consist both of natural and, especially, supernatural revelation, in the form of the truths of faith included in the Holy Scriptures and the Holy Tradition and in the objective conditions of the natural life of society. Both the general principles of civil law and those of canon law represent the solid basis of the general system of law, a structure on which the whole juridical architecture is built, meant to assure not only correct and coherent legislation, but also a balanced and transparent justice, via a unitary and consistent judicial practice or jurisprudence.

Legal Pluralism and Science and Technology Studies: Exploring Sources of the Legal Pluriverse

In introducing the contributions to this special section, we explore the links between social and juridical concepts of normativity and science and technology. We follow the Legal Pluralism challenge to the notion of state law as the sole source of normative order and point to how technological transformation creates a pluralistic legal universe that takes on new shapes under conditions of globalization. We promote a science and technology studies (STS)-inspired reworking of Legal Pluralism and suggest expanding the portfolio of legally effective regimes of ordering to include the normativity generated by materiality and technology. This normativity is amply demonstrated in the case studies included in the papers which make up this special section. We conclude that the inclusion of approaches developed in STS research helps analytically to overcome what we view as an incomplete law project, one unable to deal with the technicized lifeworlds of a global modernity. The contributions to this special section illustrate that technomaterial change cannot be understood without recognition of the role of normative impacts, and conversely, the legal pluriverse cannot be understood without recognition of the normative role of techno-material arrangements.

Comune di Milano: Explanation of the Conditions under Which an Injection of Capital Became a State Aid Measure · Case C-160/19 P Comune di Milano v Commission · Annotation by Alice Pisapia

The 2020 judgment of the Court of Justice of the European Union – C-160/19 P Comune di Milano v Commission – illustrates under which conditions the injection of capital in a company owned and controlled by the State can be considered a measure imputable to the State. The City of Milan (Comune di Milano) tried, until last instance, to defend the injection of public capital in the company SEA Handling SpA which was managing ground services at Milan-Linate and Milan-Malpensa airports. However, the appeal against the judgment of the General Court was supporting the Commission’s interpretation about the qualification of the measure as a State aid unlawfully provided and, in any case, incompatible with the European internal market. The present case note analyses two relevant juridical concepts: the private operator principle as applied by the Court with the private investor test, and the intensity of the judicial review to be applied by the Court during the appeal of a Commission decision in case of complex economic assessments. Finally, given the apical role of the Commission in State aid, the Court cannot replace the assessment carried out by the Commission; it can only revise it if the misapplication of the private investor principle was vitiated by a manifest error.

The prayers of evocatio and devotio: Between religious ritual and Roman law

Abstract This paper, which is a work in progress and a continuation of previous articles that were published on the Roman concepts of evocatio and devotio, will explore a new approach: the juridical context and implications of these religious and magical rituals. After reminding briefly the traditional interpretation (religious prayers pronounced only in a context of war) and the results of our previous articles 1 (evocatio was not limited to military context, and evocatio and devotio included magical elements very similar to formulas of execration (defixiones), we will ask questions that seem to be innovative: on the one hand, “can we compare these prayers with juridical contracts?”, and on the other hand, “had these rituals juridical and political consequences?”, such as the loss of status of a person (in this case, the devotio of enemies) and the loss of status of a place/city (in the case of evocatio). Were these religious rituals a way of making possible the symbolical destruction of a territory and the transfer of a divinity's statue to Rome, and consequently a way of making possible the real destruction of this territory and justifying its conquest? To carry out this study, we will analyze different texts that mention evocatio and devotio, and we will contrast them with texts that refer to juridical concepts (such as consecratio capitis et bonorum, exsecratio, bellum iustum, and damnatio memoriae). We will also analyze the case of cities (Veii, Praeneste, Falerii Veteres, and Carthago) that probably lost their juridical and political status after a war and after religious rituals such as evocatio and devotio. It would not be the first time that religion was used for political reasons, to justify Roman imperialism.

Juridical Study of The Implementation of The Principles of Equality of The Parents Parties In Contruction Action Contract Which Is Made In A Notary Face

The principle of equality, contact, notar The juridical concept of the principle of equality in the perspective of contract law is based on a civil law system that conforms to the values of justice. Contracts based on a civil law system that are in accordance with the values of justice, actually in Indonesia the application of the principle of freedom of contract is not absolute, there are certain limitations regulated in the Civil Code and other laws and regulations. The restrictions on freedom of contract that are regulated in the Civil Code include that there are no defects in the agreement, namely coercion, error, and fraud. The form of the principle of equality of the parties in the construction work contract deed made before a Notary, regarding the authority of the notary in making contracts, in Article 15 of Law Number 2 of 2014 concerning amendments to Law Number 30 of 2004 concerning the Position of a Notary, is a public official those who are authorized to make both authentic deeds and under-hand deeds as long as they are not specific to other public officials in accordance with statutory regulations or the wishes of the parties concerned to ensure that the rights and obligations of the parties are guaranteed and have legal certainty

The Ambition of Public Justification in Contract

Abstract This review of Peter Benson’s Justice in Transactions focuses on the book’s attempt to combine the juridical vision of contract with contract’s social role in providing a coherent framework for market relations. The combination is challenging because the juridical conception ignores particular interests, needs, purposes, and preferences of contracting parties, while the market is precisely a system for satisfying needs or obtaining substantive satisfactions. The review suggests that Benson’s treatment of the combination is open to two readings: one reading claims that contract as we know it actually succeeds in achieving public justification; the other reading claims that contract could potentially be a justified institution, but only if the background regime of rights was transformed so that juridical and substantive equality were more closely aligned.

Fundamental Rights, Contract Law and Transactional Justice

Abstract This article critically engages with Peter Benson’s theory of contract law. It explores whether his juridical conception of contract as a transfer of rights, which is governed by the contract law’s internal principles of transactional justice, can be reconciled with fundamental rights. The article argues that the conventional distinction between the direct and indirect horizontal effect of fundamental rights is problematic because it does not make it unequivocal which body of law – fundamental rights or contract law – substantially governs the relations between contracting parties and determines the outcome of disputes between them. The answer to this fundamental question, however, is crucial for the stability of Benson’s theory of contract law. Drawing on the European experience, the article shows that the relationship between fundamental rights and contract law can take the form of the subordination of contract law to fundamental rights or the complementarity between the two. While the latter is compatible with Benson’s theory, the former is in tension with it. For the sake of conceptual clarity, therefore, it is useful to distinguish between three forms of the horizontal effect of fundamental rights in contract law – direct horizontal effect, strong indirect horizontal effect, and weak indirect horizontal effect.

FORÇA NORMATIVA DA SOLIDARIEDADE

O presente artigo propõe-se a analisar o princípio constitucional da solidariedade, que encontra, agora, expressa previsão normativa no artigo 3o, I, da Constituição. Situa o texto constitucional dentro do panorama do (neo)constitucionalismo, fenômeno vivenciado no movimento pós-positivista. Analisa a polissemia do conceito de solidariedade, indicando seus pontos de convergência com outros conceitos históricos, sociológicos e antropológicos. Trata das perspectivas e abordagens doutrinárias sob as quais seu conteúdo semântico é percebido. Realça o caráter axiológico-normativo decorrente do entendimento dos princípios enquanto normas de maior abstração, apontando diversas problemáticas, ocasiões e situações reguláveis pela noção de solidariedade, dentro do ordenamento jurídico brasileiro. E, por fim, destaca como a solidariedade passou a figurar um novo parâmetro, na sociedade brasileira, ao menos, para o sopesamento de valores e interesses, no uso da técnica da ponderação, agora, também, importada pelo processo civil.

CONTRATOS DE LOCAÇÃO RESIDENCIAIS EM TEMPOS DE PANDEMIA: AS INFLUÊNCIAS DA NEGOCIAÇÃO, CONCILIAÇÃO E MEDIAÇÃO COMO RESOLUÇÃO DE CONFLITOS

This scientific article has the principal goal to demonstrate the significance of settlement and mediation in the litigious procedure that involve tenant relationship, show the influences of World pandemic in the successive treaty, the rent contracts and the theory of unpredictability. To reach the goals we searched the juridical concept about referred institutes, jurisprudence about the themes, law projects and legislation in effect. The 2020 year indeed was an atypical year in the World’s population life for we are living in a pandemic that transformed the whole society habits. The Pandemic brought to us the social distancing, that was considered the most effective way to avoid the virus proliferation. However, this social distancing created several impacts on the society, mainly in the juridical area. In that impacts there are the tenant relationship, which suffered serious consequences, owing to people are not profiting anymore.Sohow can it be solved before the process that we are passing? Thereunto, we have the conclusion that the most effective and balanced method would be utilize alternative ways of conflict resolution, whatever they are, mediation and conciliation.

DNA Evidence and the Islamic Law of Paternity in Light of Maqāṣid Al-Sharīʿa

The protection of progeny (nasl) is one of the five universal ends (al-maqasid al-kulliyya al-khams) of Islamic law. Despite this principle, classical Islamic law (fiqh), with very limited exceptions, barred affiliating a child conceived through illicit intercourse to its biological father, even if his identity was known. Was this based on a pragmatic recognition of the impossibility of identifying the “true” biological father of any child or a commitment to a deeper principle? If the former, the reliability of DNA testing would require a change in the rule, but if the latter, DNA’s reliability would be irrelevant. Using primarily examples drawn from the Maliki school of law, this paper argues, based on a purposive reading of those rules, that biological paternity, while important to Islamic law’s juridical conception of paternity, was not always the most important legal value at stake. Rather, preserving a child’s presumptive affiliation to the mother’s legitimate sexual partner was also a crucial legal value that could carry greater weight than biological paternity when the two conflicted. The tendency to entrench the biological mother’s legitimate sexual partner as the child’s lawful father in all but the most obvious cases of adulterous conception suggests that for pre-modern Islamic law, the best interests of the child weighed heavily in the law of paternity. In modern circumstances, therefore, DNA evidence of biological paternity, while it should be admissible to establish paternity of illegitimate children born to unmarried women, should not be admissible in cases involving children born to married women. Muslim states could also use DNA evidence of paternity to establish the monetary responsibility of adulterous fathers for their illegitimate children while denying them the benefits of legal paternity. Muslim states, in recognition of the importance of the well-being of the child, might also reconsider their laws on adoption, by introducing distinctions between adoptive parents and children, and parents and children related by nasab.

Review

Review

Phenomenological aesthetics and the “Manufacture of the Guilty (Fabricación de culpables)”

This article opens with a discussion of incarceration in the time of Covid 19. The story of one of the inmates in the high-security prison of Puente Grande (Mexico) leads us back to the beginning of the fifteen-year-long imprisonment of an innocent and, with it, to a complex narrative. The story concerns the use of the juridical concepts of delincuencia organizada (organized crime), racketeering, and kidnapping. As a charge it has been repeatedly implemented in what has come to be called la fabricaciόn de culpables (the “manufacture of the guilty”) in Mexico, Columbia, Argentina, and Brazil. Although the legal terminology changes, false incarceration is hardly limited to Central and South America. This is therefore a cautionary tale about how charges – and people – are framed, and how the latter are tried on social and corporate media, even before their official trials begin.

Rescuing model and system of failed bank

Referring to the provisions of Law Number 7 of 1992 and its amendments to Law Number 10 of 1998 concerning Banking, it is explained that a Bank is a business entity that collects funds from the public in the form of deposits and distributes them to the public in the form of credit and or other forms of to improve the standard of living of the wider community so that the banking industry greatly affects the overall stability of the economy because banking institutions are intermediary institutions that bridge people who do not need their funds (surplus) to be deposited in banking institutions as deposits and distributed by these institutions to people who need them in a productive form of distribution. The role of banking institutions is systemic; in other words, banking is an important part of the economic system which will cause a multiplier effect if it is not healthy or in this case, it becomes a failed bank. The main function of banking in macroeconomic policy infrastructure is indeed directed in the context of how to make money effectively and efficiently to increase economic value, which requires the role of regulation in the economic sector as a rule for the essence and existence of banking institutions in carrying out their operations. This study is normative legal research that uses several approaches namely: the statute approach, the case approach, the historical approach, and the conceptual approach carried out with juridical concepts of banks, failed banks, bank restructuring, macroprudential and microprudential. The objective of this study is to comprehensively explain the model and system for rescuing failed banks that meet the benefits principles.