Jurisprudential Positions Research Articles

Analysis of the difference of the legally relevant facts of the indicator facts

Current jurisprudential positions have exposed a series of errors incurred within the new accusatory criminal system led by the Attorney General's Office, specifically in the construction of the Legally Relevant Facts, since it does not conform to the expected and indicated assumptions. by law and other rules of criminal procedure. These failures are directly related to effects on due process, in such a way that it is the responsibility of all levels of society and especially the judicial branch to deal with mistakes. That is why, through a general analysis of all the aspects that frame the criminal technique of the Legally Relevant Facts found in the Political Constitution of Colombia, in the jurisprudence and other laws, it was possible to identify such failures, their consequences, but also formulated a series of recommendations that are expected to serve to reduce the risk of the duration of rights and become a point of reference for similar investigations

Sex Reassignment Surgery, Marriage, and Reproductive Rights of Intersex and Transgender People in Sunni Islam.

The traditional gender binary constitutes an integral aspect of Islamic social ethics, which has a pivotal role in shaping religious obligations, legal proceedings, and interpersonal judgments within Muslim communities. Within the familial sphere, this gender binary underscores fundamental responsibilities encompassing parenthood, filial duties, and inheritance rights. Recent years have witnessed a growing challenge to the traditional concept of the gender binary within Islamic societies. This shift is driven by increasing social libertarianism that emphasizes gender fluidity and individual choice. Hence, this article aims to critically scrutinize evolving discussions and controversies about the rights of intersex and transgender individuals, particularly issues relating to sex reassignment or gender-affirming surgery, marriage, and reproduction, from the perspective of the Sunni tradition of Islam. To support the various interpretations and insights presented here, a comprehensive and rigorous analysis is carried out on various religious texts and scholarly sources to elucidate the theological and jurisprudential positions on gender issues. It is thus concluded that Shariah offers greater flexibility in the treatment of intersex individuals compared to those with gender dysphoria because the intersex condition is viewed as a physical impairment that is not the choice of the afflicted individual. By contrast, in the case of individuals with gender dysphoria, they are willfully attempting to change their recognized biological sex, that God had naturally given to them at birth. Therefore, it is recommended that such transgender individuals deserve respectful psychological and social rehabilitation with help and guidance from religious authorities, their families, and communities.

A European Panorama on the Copyright Status of Stage Directors

The 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions states outright in its guiding principles that culture is one of the main aspects of development, which is as important as its economic aspects, and which individuals and people have the fundamental right to participate in and enjoy. Theatrical productions are one of the best-selling forms of entertainment. From a cultural and artistic perspective, they are one of the oldest methods of expression which, in addition to self-expression, is also a mirror of the social and political order. The aim of this article is to present the theoretical, legislative, and jurisprudential positions on the copyright situation of the theatre director. The focus of the article is on the question of how the legal status of the theatre director is settled and regulated in different European legal systems. In several European countries there are no specific legal provisions on this matter. This article is organized as follows. First, the historical and cultural aspects of theatrical productions are introduced. After that, the most important copyright law features of dramatic works are reviewed, together with an overview of some European laws. In the core of the article, the current legal situation – and possible copyright law solutions for theatre directors – are elaborated.

The Paris Agreement as a paradigm shift in international law: the view from empirical legal studies*

Legal theorists have historically levied critiques of international law’s status as law or as a legal system, contrasting it with the paradigm of municipal legal systems. However, this jurisprudential position is not necessarily sound, and empirical research tends against a sharp distinction between the two modes of law. This article uses both jurisprudential and empirical lenses to analyse and contest critiques of international law’s status as a legal system. It focuses in particular on the emergent climate governance regime and the Paris Agreement as a potential gold standard for a consensus-driven international legal order. It argues that, far from being a poor imitation of a legal system, international law may actually represent the state of the art and act as an exemplar for municipal legal systems.

Atypical Criminal Sanctions within the Scope of Plea Bargaining: Legality?

This paper aims to analyze the possibility of establishing atypical criminal sanctions within the scope of plea agreements. In this context, the clash between legality and autonomy of will is debated in relation to the formulation of extralegal penalties, reflecting on the premise of whether or not there is a need to establish legal rationalization in order to set limits to the inherent discretion in the formalized agreement between the parties. Finally, after the decision-making process, the current jurisprudential position and the proposed conclusion will be presented.

The harm of death and the transferability of the right to compensation: A comparative study

This study aims to determine how the right of compensation for death is transferable to the heirs. It is agreed that harming a human body should warrant compensation. Even if it does not result in financial losses, it is considered an attack on the human body. Nevertheless, the prevailing trend in positive law still hesitates to consider the harm of death in itself, a harm that requires compensation. On the contrary, we find that Islamic jurisprudence considers the matter in its natural and logical setting from a long time ago. It is decided to guarantee and compensate for bodily damages, whether they resulted from deadly or non-deadly injury, regardless of the financial losses and consequences or moral damages that result from this damage. By referring to the Jordanian civil law, it becomes clear that compensation for bodily harm is carried out according to the rules of blood money, whose provisions are derived from Islamic jurisprudence and the provisions of Western laws, especially those related to the inclusion of compensation for the actual damage in its moral and material aspects, and its elements of actual loss and lost profit, which some jurists believe. Contemporary Muslims have what supports it in the rules of compensation in Islamic jurisprudence, especially the rule that there is no harm and no foul. In this study, we address how compensation for the harm of death is transferable to heirs in legal jurisprudence and the judiciary system and how the right to compensation for the harm of death is transferable to the heirs in Islamic jurisprudence. The comparative approach between legal jurisprudence and Islamic jurisprudence has been applied, based on strengthening jurisprudential positions with judicial positions closely related to the subject. The study recommended that the Jordanian Court of Cassation amend its jurisprudence and re-consider the death damage guarantee as material compensation for independent material damage. This should be transferred to the heirs through the inheritance and is claimed under the hereditary lawsuit, as it violated the provision of Article 274 of the Jordanian Civil Code, which authorized the death damage compensation. It also violated what was followed by Islamic civil jurisprudence and comparative judiciary.

THE SECTORAL CONSTITUTIONAL PRINCIPLES AND CRIMINAL LAW

The work on screen discusses the constitutional principles, with regard specifically to sectoral constitutional principles, in view of the need to delimit the study. The aim was to achieve the application of constitutional principles in the scope of Criminal Law, analyzing some judgments in order to understand the jurisprudential position regarding them.

USO DA TÉCNICA DAS CONSTELAÇÕES FAMILIARES COMO RESOLUÇÃO PRECEDENTE DE CONFLITO NOS CASOS QUE ENVOLVAM A LEI MARIA DA PENHA

The present work has as a premise to present succinct explanations about the application of the so-called Technique of Family Constellation, as an antecedent resolution of conflict, in cases involving Law 11.340/2006, known as Maria da Penha Law, which aims to punish agents who commit domestic and family violence against women. Therefore, it was adopted as a comparative basis for the preparation of this research, the interpretation of Resolution nº 125/2010 of the National Council of Justice - CNJ, as well as the Code of Civil Procedure and Law 9,099/95, so that these norms use the so-called alternative means of conflict resolution, among them, the so-called Family Constellation Technique, in order to bring a new perspective, in the search for a culture of peace. Although the use of the holistic technique incites increasing rates of extra-procedural agreements in the perspective of unburdening the judiciary and promoting the union of the family entity, it ends up ignoring countless historical struggles of the feminist movement as well as the prominence of the Maria da Penha Law. in support of women who have been victims of domestic and family violence. The present research was developed through the hypothetical deductive method, with the use of the bibliography selected for the elaboration of the same, such as the national legislation, as well as doctrinal and jurisprudential positions, emanating from jurisdictional bodies.

The Lack of Philosophical Knowledge in Che Guevara’s Pedagogy: Fetishizing Love for Justice and Rage against Imperialism at the Expense of Logos

Most research on Ernesto “Che” Guevara has been concerned with emphasizing his ideological Marxist commitments and anti-imperial material objectives. These scholarly concerns usually constellate recycled subjective themes highlighting the revolutionary leader hating injustice, and loving justice, in tandem with the objective of eliminating imperialism and advancing a Third World project. In 2012, Che’s Apuntes filósoficos (Eng. Philosophical Notes) were published and highlighted that his exposure to philosophy regrettably occurred late in his life, and surprisingly, the difficulty he had in reading Marx and Hegel. The objective, therefore, of this multidisciplinary research navigating law, theology, philosophy, and politics is threefold. First, it alludes to and critiques the familiar pedagogy of Guevara emphasizing the importance of developing a “theory in action”, “learning through action”, being a “humanist”, and “leading by example”. Secondly, it considers the consequences of Che reifying emotion (eros) over reason (logos) thereby providing a possible answer to his “failed revolutionary story” in the Congo and Bolivia with his pedagogy involving an unstable compound mixing the emotion of compassion with rage thus clouding his reason. Finally, the third section highlights that we should not relegate emotion away from the sphere of political discourse, but rather harmonize it with reason to avoid chaotic and unpredictable errors based on subjective truths. Emphasizing the former at the expense of the latter—as maintained by a realist approach to International Relations and positivist jurisprudence accenting International Law—risks undermining scholarship challenging the immoral consequences arising from a naturalized assumption separating reason and revelation thus decriminalizing colonial practices characterizing the North and South.

The scientific and historical position, jurisprudence and personality of imam sadiq from the sunnis point of view

Imam Sadiq is one of the scientific, jurisprudential, and moral pioneers of our time and an outstanding personality of the Islamic world and humanity. He established a large scientific center in Masjid al-Nabi located in Madinah Munuwrah, which had the status of the first university in the world, and educated up to four thousand students in various branches of religious and intellectual sciences of the time, a valuable contribution to the flourishing of Islamic civilization, the production of sciences in the fields of different and scientific guidance of people. He is a personality who does not fit in the form of a single religion, religion or sect, but the whole of humanity is indebted to the efforts of intellectual sciences and the publication of religious sciences by that honorable man. Famous scientists and thinkers such as Imam Azam Abu Hanifa, the leader of the Hanafi religion, Imam Malik Ibn Anas, the leader of the Maliki religion in religious sciences, and Jabir Ibn Hayyan and others in experimental and intellectual sciences were his students. Many scholars of different sects, both Muslim and non-Muslim, have spoken about the knowledge, knowledge, asceticism, chivalry, morals, behavior and characteristics of that noble person and have described his eminence as the universe leader. The scientific, jurisprudential and personal status of Imam Sadiq is prominent in the eyes of all Muslims, and he does not belong to a particular religion, but belongs to all Muslims and humanity. Key words: Imam Sadiq, Ahl al-Sunnah, scientific position, jurisprudential position, personality.

Der Allgemeine Teil des neuen chinesischen Zivilgesetzbuchs im Vergleich zum deutschen BGB (Teil 1): Eine rechtswissenschaftliche und -terminologische Untersuchung der Rechtssubjektsregelungen

On 1 January 2021, the newly codified Civil Code (CC) came into effect in the People’s Republic of China, having been high on the political and legislative agenda in recent years and approved by the National People’s Congress on 28 May 2020. Since the founding of the People’s Republic (1949), numerous attempts have been made to codify its civil law. The CC is undoubtedly a landmark in China’s overall legal history, particularly with regard to civil law legislation, which, in contrast to the country’s long and turbulent history, had only begun in the late Qing Dynasty (1911). Preceding the enactment of the CCL, the General Part of the Civil Law of the People’s Republic of China, to which the CC’s General Part is basically identical, had already been adopted and enacted in 2017. With this step, China’s legislators succeeded in replacing the General Principles of the Civil Law of the People’s Republic of China, which by then were already 31 years old, together with their supreme court interpretation, and finally set the course for the codification of the People’s Republic of China’s civil law. In view of the codificationhistorical and jurisprudential position of the CC’s General Part in China’s civil law and of the new codification as a whole, it is appropriate to present it to German-speaking and international legal experts, primarily in comparison with the General Part of the German Civil Code, which served or will serve as the most important foreign source of knowledge in the creation of the CC and in its application-related optimization. In this respect, this treatise, consisting of two parts, appreciates the renewal achievements of the CC’s General Part and examines its regulations in a comparative legal manner, focusing on the legal subjects, civil rights, legal transactions (including representation) and civil liability in terms of legal doctrine, technology and concepts.

La reincidencia culposa: un análisis jurídico y doctrinario

The figure of culpable recidivism typified in Article 57 of the Ecuadorian Organic Integral Penal Code is analyzed with respect to the existence of possible violations to basic principles of law, such as proportionality and culpability, in addition to its application as an aggravating factor in cases of dangerousness of the offender and potential to commit infractions again, highlighting the non-compliance with the purposes of criminal law. The possible divergence between Ecuadorian legislation, international treaties and jurisprudential positions are issues to be highlighted in the work. This is a qualitative and documentary type of research, focused on building a correct differentiation between generic and specific recidivism, to avoid future transgressions to the rights of those convicted for guilty recidivism. It is concluded that the application of Article 57 of the COIP punishes the conduct of the person, which violates the inherent rights of Ecuadorians and foreigners residing in the country, because it takes into account the dangerousness of the individual as an identifier of the recidivist, this results in a previous tendency to the judge at the time of sentencing, failing to comply with the purpose of maintaining a legal order that avoids putting the recidivist in a vulnerable situation.

Board of Directors System of Limited Liability Companies in China: Realistic Problems and Reform Trend

As an integral part of corporate governance, the system of the board of directors has been improved in China with the development of history. Up against in-depth China’s market-oriented reform, there are some problems in the board of directors system of the limited liability company in the Corporate Law. On the one hand, the board of directors of limited liability companies under the Positivist Jurisprudence is faced with defects, including the vague distribution of powers between shareholders and board of directors, power of the board of directors plundered by managers, and serious impact of the legal representative system on the position of the board of directors. On the other hand, due to the contradiction between corporate autonomy and state compulsory force, the system of the board of directors is also facing a huge shock from business practice. In this regard, there are two theoretical solutions, that is, “reservation theory” and “abolition theory”. However, both of them have their own imperfections. Limited liability companies should be given the right to choose whether to set up a board of directors and improve the linkage design of the corresponding corporate governance system.

A EFETIVIDADE DA INVESTIGAÇÃO DE VIDA PREGRESSA PERANTE O SUPERIOR TRIBUNAL DE JUSTIÇA (STJ) E O TRIBUNAL DE JUSTIÇA DO DISTRITO FEDERAL E TERRITÓRIOS (TJDFT)

This paper deals with the effectiveness of previous life research in the face of the position ofthe courts: Superior Court of Justice (STJ) and the Court of Justice of the Federal District andTerritories (TJDFT). Such an approach is necessary due to the large number of candidates thatare contraindicated in the evaluation of past life by the institutions, but which continue in thecontest due to varying understandings of the Brazilian justice, which often leads to access tosecurity by people with involvement criminal. The objective is to analyze the damage causedto the PMDF, its members and society as a whole, in view of the access of people who wouldnot have a previous life compatible with someone who wishes to enter a security institution.This task will be achieved through bibliographical and jurisprudential review, passing byindoctrinators in the area of Law and Intelligence of Public Security. In addition, themethodology employed will be exploratory, consisting of the collection of judgments in orderto identify the jurisprudential position contrary or favorable to the administrative decision.Finally, the study showed the relevance of social investigation and the full support of thejudiciary, requiring special attention focused on how to conduct the investigation in order tosupport the administrative and judicial decision.Keywords: Past Life Inquest. Social Research. Jurisprudence.

Principles of Positivist Jurisprudence in the Teachings of Warsaw Lawyers of the First Third of the XIX Century

The article is devoted to the extremely rich and insufficiently studied heritage of Polish legal thought. The political and geographical determinants of the chosen research topic are the restoration of statehood in central Polish lands in 1807 (Duchy of Warsaw and the Kingdom of Poland) and the defeat of the November Uprising (1830-1831) followed by measures taken by the Russian authorities to limit the autonomy of the Kingdom of Poland. The intellectual milestones are the founding of the School of Law in 1807 (later the Faculty of Law of the University of Warsaw), and the closure of the University of Warsaw in 1831, as well as the significant emigration of scientists in the same year and the liquidation of the Society of Friends of Science in 1832. The intellectual milestones are also European (and first of all Central European) processes of legal thought evolution in the second half of the XVIII – first third of the XIX century, which led to the formation of the first and still insufficiently understood and studied positivism in jurisprudence, being a profound phenomenon that reveals the essence of positivism in legal thought in general.
 The study found that the basic principle of jurisprudence in the vision of most Warsaw scholars during the study period was its independence from a priori and metaphysical philosophizing, and vice versa, the formation of its own philosophical and legal discourse (philosophy of positive law) based on generalization and understanding of research results. It was recognized that legal science should be a fundamentally new system of legal knowledge – positivist and social. Recognizing the historical and modern pluralism of such an organization of knowledge, Warsaw scholars have unequivocally identified themselves with the Central European jurisprudence, the core of which is the German. Warsaw scholars believed that jurisprudence was based on historical, dogmatic and philosophical approaches. Accordingly, they considered three relatively separate areas of scientific knowledge, which together can be considered as a single legal science or a system of interrelated legal sciences. Depending on the emphasis in the views of scholars on the fundamental or applied side of legal science, this system was seen differently, as well as the subject of jurisprudence – universal or more national. It can be argued that this to some extent correlated with the predominance in the views of certain scholars of the principles of historical-philosophical or historical schools.

“Every Scientifically Educated Lawyer Should be a Cultural Fighter for the Ideals of Law in Life!“ — Nikolay I. Palienko’s Legal and Political Views

. The paper analyzes the legal views of Nikolay I. Palienko, a prominent philosopher of law and a state historian of the beginning of the last century. The authors pay significant attention to the integrative concept of legal understanding that is followed by Prof. Nikolay Palienko. They also substantiate originality and significance of the concept in the light of modernization of the political and legal order in late imperial Russia. It seems that under certain conditions it could serve as a bridge between positivist jurisprudence and the doctrine of “reborn natural law” developed in pre-revolutionary Russia. It was intended to smooth out the contradictions in both doctrines and contribute to the development of a new methodology for law understanding in the context of transformation of the Russian legal system towards establishing institutions of constitutional order.On the basis of published sources, the authors show the evolution of the scholar’s views from the positivist theory of law to idealism that is not properly estimated in the legal literature and is quite typical for the legal scholars of the interrevolutionary period.The authors conclude that Prof. Nikolay I. Palienko scholarship and knowledge allowed him to substantiate his own concept of legal understanding that can be considered integrative on the basis of achievements of the positivist theory of law, philosophy of natural law, psychological and sociological concepts of legal understanding. Prof. Palienko proclaimed the normative nature of law and at the same time expressed ideas of the supremacy of law over the state and the coherence of the state provided by law. An essential element of his legal concept was the legal consciousness of the society, acknowledgement of its role in the course of law education, as well as its establishment as a source of law. Palienko’s idea of legal coherence of the state represents a synthesis of positivism with idealism and leads to a new stage of development of legal methodology and ideology, namely: integrative jurisprudence. Scholar’s political and legal ideas contributed to the development of ideas about the rule of law, which were very popular in Russia during the period of development of representative institutions and constitutionalism.

La dignidad de la persona humana, principio conceptual del accionar judicial en Colombia y en Alemania

La valoración de algunos de los pronunciamientos del Tribunal Constitucional Alemán permite vislumbrar la forma en que esa corporación judicial evidencia el papel que le asiste a la dignidad humana, por cuanto entiende queesta funge como piedra angular del ordenamiento. Al concebir el derecho bajo estos criterios funcionales, es claro que la posición jurisprudencial sobre el particular se orienta hacia el establecimiento de un criterio garantista, con el que se ha de vivificar el contenido de los derechos que emanan de la positivización de la dignidad humana, esta es la posición argumentativa contenida en el presente escrito, a través de la cual se invita al lector a la reflexión sobre estos criterios jurisprudenciales que en muchos casos tienen su par en la jurisprudencia colombiana.

The arbitrability of civil fraud in India: analysing the Supreme Court of India’s decision in Avitel Post Studioz Ltd

ABSTRACT The arbitrability of civil fraud under Indian jurisprudence had been a victim of vaguely worded and scattered tests for a considerable period of time. In its recent decision in Avitel Post Studioz Ltd v HSBC PI Holdings (Mauritius) Ltd., the Supreme Court of India finally put the uncertainties regarding the matter to rest by harmonizing the existing law on it and crystallizing the ‘public flavour’ standard. According to this standard, allegations of fraud which find their roots in civil law and have no public considerations shall now be considered arbitrable in India. The judgment also clarified the impact that parallel criminal proceedings based on the same set of facts would have on the arbitrability of the civil aspects of such fraud, bringing necessary clarity to the erstwhile regime. In this article, we explore the implications of this judgment in detail, highlighting its relevance for arbitration in India, and how it impacts the jurisprudential position on the arbitrability of fraud in the country.

La declaración de la víctima de violencia de género como única prueba de cargo: últimas tendencias jurisprudenciales en España

The declaration of the victim of the crime has been gaining prominence in the Spanish criminal process, to the point of becoming essential to enervate the presumption of innocence in those processes in which it is the only proof of charge. This circumstance has become even more relevant, even if possible, in crimes related to gender violence, characterized, on the one hand, by the special characteristics that converge on someone who, in addition to being a victim of the criminal act, is a witness to it and, on the other, due to the scarce body of evidence that the judge usually has in the criminal proceedings followed by such acts, as these are behaviours generally committed in the intimacy of the couple's relationship. The purpose of this work is to analyse the guiding parameters provided by the Spanish Supreme Court in the declaration of such victims. The traditional jurisprudential position will be examined and the expansion that these criteria have made in the recent ruling of the Supreme Court 119/2009, of March 6, will be critically assessed afterward, to determine the need or not for such expansion, as well as the incidence of its application in the processes followed by crimes related to gender violence.

Office-holding and officiality

Much of positivist jurisprudence and public law theory celebrates an idea of the ‘legal official’ as one appointed and identified by law to claim and wield law’s powers over subjects. That idea treats the official as the holder of an office constituted by law and so relies heavily upon law’s fabricated normativity and its insulation from social and moral normativity. This article challenges that view by drawing a distinction between ‘law’s offices’ and ‘officials of the law.’ More precisely, it distinguishes the status of office-holding under the law from the moral standing of ‘officiality’ carried by officials of the law and transmitted through practices of recognition of the role of official. The article challenges positivist orthodoxy to account for the moral standing that recognition carries into the role of official, alongside the institutional rules of office. In a response to John Gardner’s work on ‘officials of the law,’ which insists upon the morally laden role of official but avoids an over-moralized account of law’s normativity, I argue that recognition generates and carries moral normativity within and between the roles of official and subject in a way that inserts such recognition, and the role of official, into the story of law’s normativity.