Law Of Obligations Research Articles

Analisis Hukum: Actio Pauliana terhadap Aset Disewakan dalam Kepailitan

This research focuses on the legal regulation of leasing in the context of bankruptcy, emphasizing the importance of good faith principles and the application of actio pauliana. Leasing involves managing economically valuable assets through agreements that must comply with the validity requirements under Article 1320 of the Indonesian Civil Code, including the principle of good faith. In bankruptcy cases, the good faith principle is applied through actio pauliana, which grants creditors the right to annul actions by debtors that harm them. This research aims to understand how the Bankruptcy and Suspension of Debt Payment Obligations Law (KPKPU) regulates rental income from bankruptcy assets and the application of actio pauliana to leased bankruptcy assets. The study employs a normative juridical method with legislative and conceptual approaches to analyze the legal certainty of leased bankruptcy assets. The findings show that rental income can be classified as bankruptcy assets under Article 38 of the KPKPU Law, and actio pauliana can be applied if the leasing agreement is made in bad faith, as per Article 1341(2) of the Civil Code and Article 38 of the KPKPU Law.

DISCUSSION ON THE CONCEPT OF CAUSA IN CONTRACT LAW: A REVIEW OF THE ROMAN HISTORICAL BACKGROUND AND CONTEMPORARY THEORIES

The paper discusses the impact of causa on the validity of obligations in contract law. Given that many institutions in modern law trace their origins to Roman law, the paper begins by presenting the role of the cause of obligation in Roman law. The authors then analyzes the causal and anti-causal positions of legal theory, emphasizing that the cause of contractual obligation is a highly debatable institute of the law of obligations. The final part of the paper is dedicated to the cause of contractual obligation in our contract law. Considering that the Law on Obligations accepts both subjective and objective conceptions of the cause of contractual obligation.

Dealing with Clashes of International Law: A Microlevel Study of Climate and Trade

Abstract For years, scholars in international relations have addressed questions related to regime complexity and its effects. However, there is a lack of understanding of how individuals react to clashes of international law obligations when assessing domestic policies. In this article, we study the extent to which citizens are concerned with compliance and noncompliance with international law when their governments design domestic laws to implement international obligations. We are, in particular, interested in whether citizens’ reactions to clashes of international obligations are driven by concerns about being exposed internationally for breaching international law or concerns about tangible material costs. Our empirical analysis is based on an experiment embedded in a survey of Swiss citizens’ attitudes toward environmental issues. The experiment first shows that individuals react to both information about compliance as well as noncompliance, whereas the shifts are more notable in the case of negative information about noncompliance. Second, we find that information about the country being subject to international adjudication (what we call exposure costs) in case of noncompliance is more consequential than information about material costs (facing retaliation).

Problematika nepomenovaných zmlúv v občianskom práve a ich uzatváranie s pohľadom de lege ferenda

One of the key branches of private law is the law of contractual obligations. In addition to innominate contracts, which are most often used in practice, a category of innominate contracts and a special category was created, the category of so-called mixed contracts. In practice, innominate contracts are a tool frequently used to anchor contractual relationships in all spheres of life. The institution of innominate contracts is not a new one; it is based on the principle of dispositional autonomy, which is known to have already existed in ancient Roman law. In the Slovak Republic, there are two codes, one specifically regulating civil law and the other regulating commercial law. Civil law in the Slovak Republic is regulated in the Civil Code, which regulates the natural persons’ mutual rights and obligations. In contrast, commercial law, which is regulated separately in the Commercial Code, regulates the mutual rights and obligations of legal persons, and the rights and obligations that exist between natural persons and legal persons. This means that the institution of innominate contracts is found in the Slovak Republic not only in civil law but also in commercial law, i.e., in two legal codes, when the subjects of obligation-law relations are dependent on the use of analogy-based legal reasoning due to the absence of contractual types when regulating the rights and obligations of the various subjects of their obligations.

Do large language models have a legal duty to tell the truth?

Careless speech is a new type of harm created by large language models (LLM) that poses cumulative, long-term risks to science, education and shared social truth in democratic societies. LLMs produce responses that are plausible, helpful and confident, but that contain factual inaccuracies, misleading references and biased information. These subtle mistruths are poised to cumulatively degrade and homogenize knowledge over time. This article examines the existence and feasibility of a legal duty for LLM providers to create models that 'tell the truth'. We argue that LLM providers should be required to mitigate careless speech and better align their models with truth through open, democratic processes. We define careless speech against 'ground truth' in LLMs and related risks including hallucinations, misinformation and disinformation. We assess the existence of truth-related obligations in EU human rights law and the Artificial Intelligence Act, Digital Services Act, Product Liability Directive and Artificial Intelligence Liability Directive. Current frameworks contain limited, sector-specific truth duties. Drawing on duties in science and academia, education, archives and libraries, and a German case in which Google was held liable for defamation caused by autocomplete, we propose a pathway to create a legal truth duty for providers of narrow- and general-purpose LLMs.

Functions of taxes and other public liabilities. Can thefiscal function be performed by remuneration received bycompanies with State Treasury participation on the basisof civil law relations?

The scope of the functions of taxes and the entire tax system has not been precisely defined by the Legislator.Both fiscal and non-fiscal goals/functions are implemented by the tax system. Ensuring budget revenues to fulfillthe redistributive function is the foundation of the tax law system. On the other hand, all tax law norms also fulfillmany other functions, including: stimulation, development, protection, social or political. However, the indicatedfunctions are implemented by general legal norms, in particular public law – tax law, through public finance ties and units. Constitutional guarantees regarding the manner and procedure of shaping tax law provisions ensurethe security of citizens/taxpayers with regard to public law obligations. The statutory exclusivity in shaping taxesand other public levies provides a guarantee for counteracting the authoritarian imposition of „universal financialobligations” on citizens (entities from the sphere of private l aw).The issue to be analyzed is to determine whether fiscal and non-fiscal functions can be entrusted by the State toentities from the sphere of private law – including: commercial law companies with State Treasury participation.The actual entrustment of such functions would take place outside parliamentary control and without regard tothe requirements and regulations applicable to public finance entities and units. Additionally, the takeover and,consequently, the implementation of non-fiscal functions (e.g. stimulating or political) by commercial law companieswould be in violation of the provisions regulating business activity and the standards regulating the functioningof commercial law companies.In practical terms, the way civil law relations are shaped by companies with State Treasury participation, whichactually implement State monopolies, may result in the imposition of general, additional, economically unjustifiedfinancial burdens on citizens and private entities.

The role of science in international water law

ABSTRACT The management of international watercourses requires both scientific input and transnational cooperation. This paper examines the role of science in the field of international water law and how scientific data, techniques, and methods may be used to bestow the legal framework with greater clarity and precision. In this regard, this paper demonstrates how the two primary obligations of international water law – the no-harm principle and the doctrine of equitable and reasonable utilization – are capable of conceptualization and application in a scientific manner. Examples of interdisciplinary approaches and expert commissions are utilized to demonstrate the role of science in practice.

A Legal Obligation on UK Employers to Conduct Labour Law Due Diligence: A Substantive Proposal

Abstract The use of non-financial reporting and due diligence legislation to force companies to address specific adverse effects of their operations has become an increasingly common tool for policymakers in recent years. To date, international legislative activity has mainly focussed on potential breaches of human rights and environmental obligations but has also included aspects of labour law. This article proposes a new law that adapts the concept of corporate due diligence to the field of labour law. The new law uses a reflexive model of legislation which is referred to as Labour Law Due Diligence. The under-resourced system of labour market enforcement in the UK and workers’ reluctance to use litigation to defend their rights means that persistent non-compliance by employers can go unpunished. Employers would be obliged to carry out an annual audit to assess whether they comply with key labour law obligations and make the results public. Non-compliant employers would need to remedy any unlawful practices within a year or face the prospect of enforcement action being taken against them. Through an evaluation of UK legislation which has attempted to force companies to address specific legislative goals through public disclosure of data, the article seeks to address the weaknesses of such legislation by involving stakeholders and introducing robust systems of enforcement.

‘Fire and Rehire’: Four Lessons from Australia

Abstract The practice of firing employees and then rehiring them in their same jobs on inferior conditions and lower wages (‘fire and rehire’) has emerged as a matter of acute political controversy. Its use in the United Kingdom has become even more controversial in the period since the Covid-19 pandemic. A brutal example of the practice was seen in the P&O case, which could be viewed as an example of ‘fire and replace’ as well as ‘fire and rehire’. In March 2022, P&O Ferries summarily dismissed 786 seafarers, setting aside £44 million to meet the anticipated compensation costs arising from its failure to comply with multiple employment law obligations owed to the crew. Approximately 100 of those dismissed were re-engaged on new terms, the remainder replaced by new crew engaged through agencies on inferior terms and conditions. This article addresses what would need to be done to ‘ban’ fire and rehire, and the related practice of fire and replace. It is argued that fire and rehire is a symptom of system failure which will not be addressed by sticking plaster solutions or by an unenforceable code, but by addressing the underlying causes. This means better regulation, treating collective agreements and contracts of employment with greater respect, better procedures for the negotiation of change, and more effective remedies designed to restrain employers from acting unlawfully. In addressing these matters we draw extensively on the experience of Australia where fire and rehire as understood or practised in the United Kingdom is largely unknown.

Evaluation of tax debt management for bankrupt taxpayers in Indonesia

Purpose: This study aims to evaluate tax debt management for taxpayers who are bankrupt in Indonesia, based on successful tax debt management. Method: This study is a literature review that compiles and synthesizes data from Indonesian Tax Collection Law with Distress Warrant Law, General Tax Provisions and Procedures Law, Bankruptcy and Postponement of Debt Payment Obligations Law, Minister of Finance Regulation. This study also integrates previous research to evaluate tax debt management for bankrupt taxpayers in Indonesia, based on successful tax debt management. Results: Persuasive communication with bankrupt taxpayers is deemed nonessential in the context of tax debt management within bankruptcy proceedings. Standardized procedures were in place within the Directorate General of Taxes prior to resorting to law enforcement measures for debt collection from bankrupt taxpayers. These measures encompass a spectrum of enforcement tactics, including asset confiscation, imposition of travel restrictions (exit bans), and detainment in extreme circumstances. The Directorate General of Taxes assesses various criteria to determine the viability of collecting debt from bankrupt taxpayers, considering factors such as economic feasibility and practicality. Limitations: This study did not conduct a comparative analysis of tax debt management for bankrupt taxpayers in Indonesia and similar practices in other countries. Such a comparison would elucidate how different jurisdictions address tax debt management for bankrupt taxpayers, and could offer valuable insights for overcoming collection challenges specific to Indonesia. By examining common practices in other countries, this study provides recommendations tailored to the Indonesian context to improve the effectiveness of tax debt collection from bankrupt taxpayers. Contribution: This study enriches the literature on how the Directorate General of Taxes manages bankrupt taxpayers to pay their debts.

On the Rule of Law of the State's Obligation to Supply for the Basic Medical Security Right in China

The implementation of the “Healthy China Strategy” is an important part of the current national basic strategy. Health is also related to the basic survival and development of citizens. The right to health is an important fundamental right of citizens, and the basic medical security right is an important part of it. The basic medical security right is the right to guarantee citizens' basic access to medical care and the right to basic medical services, and is closely related to the right to life, the right to health and the right to social security. The State's obligation to supply for the basic medical security right mainly consists of the material supply obligation and the procedural supply obligation: the material supply obligation may be specific to the supply of medical insurance, medical assistance and medical facilities; and the procedural supply obligation consists of the supply of medical service and medical relief. The State's obligation to supply for the basic medical security right in practice in China mainly faces such practical problems as inadequate legal norms and low hierarchy of legislation, large differences in supply among regions, and low level of supply. In this context, the State's obligation to supply for the basic medical security right should be further improved by, among other things, establishing the legal system of supply governed by the Constitution, formulating scientific supply standards, and developing diversified relief channels. At the same time, in terms of the leading and consistent internal logic, change the logic of legislative thinking from emphasizing the medical security administration in “drafts for comments” to the structured and typified basic medical insurance legal relations, establishing the system of medical security law, and thus promote the rule of law of the basic medical security right.

Liability of Former Members of the Management Board ofCapital Companies for Public Law Obligations

The article concerns the complex and multifaceted issue of financial liability of former members of the managementboards of capital companies for the company’s obligations, especially in the context of tax liabilities. Thereis a complexity resulting from intertwined legal regulations contained in the Commercial Companies Code andthe Tax Ordinance. Key issues discussed in the text include: the compensatory nature of liability, differencesbetween the treatment of civil and tax liabilities, and specific legal situations arising from both mistakes and intentionalactions of the management board in the context of obligations. Particular attention was paid to the judgmentof the Constitutional Tribunal, which considered the liability of a former board member and the possibilityof defending against creditors’ claims while simultaneously lacking access to documentation and legal tools afterleaving the position. The final question concerns the impact of this verdict on public law regulations and its applicationin the context of tax law.

Current Problems of Compliance with Constitutional Environmental Responsibilities Through the Lens of Constitutional Justice

The article analyzes constitutional environmental responsibilities in the Russian Federation through the prism of constitutional justice. Their non-compliance entails adverse consequences for subjects of environmental law. The purpose of the study is to identify topical issues that negatively affect compliance with constitutional environmental obligations in accordance with constitutional and legal norms, Russian legislation, as well as international law. The objectives of the study are to study constitutional environmental obligations in national and international law, to analyze the norms contained in the laws of the Russian Federation and international legal acts concerning compliance with environmental obligations, and to identify key problems related to them. Using the comparative legal method, the analysis of constitutional environmental obligations was carried out. In addition, logical and formal legal methods of scientific cognition were used. The study examines some key aspects that have an adverse impact on compliance with constitutional environmental obligations, the doctrine of environmental law. It is revealed that in the Russian Federation, the duties in the field of ecology are the preservation of the environment and respect for natural resources, entrusted to all subjects of law. In accordance with the norms of international law, the element of the ecological and legal status of a legal entity considered by us is more characteristic of the State. The study of problems in national and international law has led to the conclusion that in modern countries it is recognized that non-compliance with constitutional environmental obligations is due to a low level of environmental awareness, lack of understanding of legal responsibility and environmental nihilism.

Regulation of civil legal relations according to the Salic truth

The presented article is devoted to the analysis of the norms of the Salic Law which regulated civil legal relations of the Frankish society. The article notes that the Salic Law is a collection that was primarily devoted to the rules of criminal law and criminal procedure. Less attention was paid to the norms of civil law. This was due to the fact that the agricultural economy was not organized on a contractual basis. However, despite this, it contained rules that regulated property rights, obligations, marriage and family law, and inheritance law. The author has established that the Salic Law does not have a clear definition of property. The Franks retained communal ownership of land for a long time, as the rural neighborhood community, the marka, continued to exist despite the formation of the state. It is noted that at the end of the sixth century, the Franks formed a «full allod» – freely alienable land property, which was allowed to be freely given, transferred and bequeathed, including to women. A movable property was owned by families or individuals and could also be freely alienated and inherited. Based on the analysis of the norms of the Salic Law, the author found that the law of obligations was the least developed. There were such types of contracts as sale and purchase, exchange, gift, and loan. For a contract to be valid, in addition to the consent of the parties, it was necessary to observe various rites. As for marriage and family law, the article states that a legal marriage could be concluded between an adult free man and an adult free woman (no minimum age was set), subject to the consent of their relatives and provided that both parties were not bound by prohibited ties of kinship. Marriage was concluded through the purchase of a wife, i.e. power over her, from the person who had previously exercised this power over her. The grounds for invalidating a marriage were also defined. The author also analyzes the order of inheritance according to the Salic Law. It is established that the heirs in descending order were: children (and their descendants); mother and father; brothers and sisters; father’s sisters; mother’s sisters; father’s relatives (up to the sixth generation). Allodial land was а family land, it could not be inherited by females.

Clarifying Jus Cogens, Erga Omnes and the Place of Third-party Countermeasures in International Law

There is substantial support in literature of the idea that all norms of jus cogens are erga omnes, in that they produce obligations applicable towards all states. However, not all obligations erga omnes invariably flow from a jus cogens characterisation. Indeed, although this is the case, there is no simple criterion by which one can determine the extent of the overlap between jus cogens and erga omnes. This relationship is further complicated by questions relating to the kind of measures that states may be permitted to take in order to protect or ensure compliance with obligations erga omnes, bringing to light, the debates surrounding the concept and the place of third-party countermeasures regarding state responsibility. Against this backdrop, this article will assess the concept of obligations erga omnes, its relationship with jus cogens as well as the legal position and the place of third-party countermeasures in relation to the protection of obligations erga omnes and/or as a way of invoking state responsibility by reacting to breaches of international law obligations with erga omnes status.

An Analysis of the Obligations of COMESA Public Procurement Regulations: The Case of Zimbabwe’s Public Procurement Regulatory Framework

With the coming into force of the new Constitution in 2013, public procurement was given a constitutional status in Zimbabwe. The Constitution sets out vital principles that public procurement legislation must comply with. Moreover, it is a requirement of the Constitution that the governance of Zimbabwe must be pursued in accordance with Zimbabwe’s international law obligations. Zimbabwe is a founding member of the Common Market for Eastern and Southern Africa (COMESA). To accelerate interstate trade, COMESA promulgated Public Procurement Regulations (PPR) for regional competitive bidding across member states. The viability of the regional trade agreements is hinged on mutual cooperation. Pursuant to the foregoing, member states are required to domesticate international agreements into their municipal laws. In 2017, the Zimbabwean legislature passed the Public Procurement and Disposal of Public Assets Act 5 to give effect to the provisions of section 315(1) of the Constitution (Amendment No. 20), 2013. The public procurement reform agenda in Zimbabwe occurred close to a decade after the adoption of the public procurement regulations by COMESA in 2009. This article explores the obligations imposed on Zimbabwe pursuant to the public procurement regulations. This is done by identifying the public procurement principles enumerated in public procurement regulations, which are binding on member states. This article endeavours to answer the question: To what extent does the Zimbabwean legal framework conform to public procurement regulations? This article notes that the legal framework underlying public procurement in Zimbabwe, by and large, conforms to the bar set in the public procurement regulations. Nonetheless, it highlights Zimbabwe’s public procurement shortcomings. The article concludes by making possible legislative recommendations.

EU resilience in investment protection: a case for revisiting and reinforcing the loyalty principle in EU external relations

Abstract This article explores the concept of European Union (EU) resilience in the area of investment protection and Investor–State dispute settlement. The article adopts a functional approach to investment protection and suggests that reforming dispute settlement procedures in line with current Commission initiatives is key to promoting open strategic autonomy for the EU. Support for those initiatives is however weak, also among EU Member States. It is argued that EU resilience requires new tools for more unity and coherence in external EU action, both generally and for the reform of Investor–State dispute settlement in particular. The tool devised here is an increased loyalty standard coupled with a justification test, based on both a modernized comprehensive reading of loyalty obligations in primary law and the effectiveness principle and rationale as applied in case law. The novel approach promises significantly better results in terms of commanding coherence in external action while fully respecting the principle of conferred powers. It challenges traditional power dynamics, but incorporates a bold vision for external EU action that is truly autonomous and assertive.

Kepastian Hukum Bagi Investor Fintech P2P Lending Dalam Kepailitan Bisnis Menggunakan Pendekatan Business Ready

This writing discusses the influence of legal certainty in the Bankruptcy and Delayed Debt Payment Obligation (PKPU) Law on investor interest in the Fintech Peer-to-Peer (P2P) Lending sector, using the legal certainty theory by Lon Fuller. A potential solution in the form of the B-Ready approach is also proposed to enhance legal certainty for investors through the revision of the Bankruptcy and PKPU Laws. This approach is normatively analyzed through statutory and conceptual approaches. Research findings indicate that the current Bankruptcy and PKPU Laws do not fulfill Fuller's eight elements of legal certainty, particularly regarding the prohibition of conflicting regulations and the alignment of rules with their practical application. This could potentially detrimentally affect investor interest in the Fintech P2P Lending sector due to legal uncertainty jeopardizing their investments. The B-Ready approach emerges as a potential solution by identifying seven aspects in the Draft Bankruptcy and PKPU Laws that can facilitate business ease for investors when facing business bankruptcy. Overall, a review of the Bankruptcy and PKPU Laws is crucial to establish a clearer and advantageous legal environment for investors in the Fintech P2P Lending sector. The B-Ready approach holds potential as a foundation for revising regulations, ensuring the necessary legal certainty for investors.

On the issue of negative obligations in the civil law

In the civil-law doctrine, there is a debate regarding the admissibility of “negative” obligations – that is, those performed by inaction. In the author’s view, this scientific problem turns out to be a semantic tangle in which conflicting ideas about the essential features of obligations are intertwined. The goal is not just to unravel the knot, but also to trace to what sources the semantic threads go, which will allow us bettering comprehension of the nature of mixed legal phenomena. Starting from the concept of obligation, the author shows the fallacy of the idea that inaction would amount to a kind of obligation on a par with action. Abstaining from action is nothing more than a way to transfer a value to another party. In order to enrich the scope of the study, the unsound objections to the recognition of such obligations are examined, one of those being the opinion of their incompatibility with the prohibition on limiting legal capacity. The article also refutes the idea that general provisions on obligations are inapplicable to obligations performed by abstaining from action. Finally, the work clarifies distinctions between such obligations and other legal phenomena with the use of case modelling. According to the author, in order to avoid institutional confusion, it is advisable to include in the Civil Code a provision indicating that obligations can be performed by abstaining from action.

To be, or not to be? Copyright general monitoring dilemma of online hosting audio‐visual platforms in China

AbstractIn China, a hosting audio‐visual platform does not bear a copyright general monitoring obligation. It bears a public law obligation to monitor content proactively and constantly to safeguard the governance objective of cybersecurity. Little literature has discovered that Chinese case law has shown a risk that this public law obligation can impose an actual copyright general monitoring obligation upon platforms. The crux lies in that the public law obligation weakens the rationale of the copyright no monitoring obligation that a platform cannot access and assess each piece of work proactively. Copyright general monitoring seems to be workable as a platform is given such an opportunity to access and evaluate each content upon the fulfillment of the public law obligation. It, however, is unjustifiable to create this copyright law obligation by transferring it from the public law obligation, as copyright monitoring is much more complicated and costly within China's online environment. Access to content does not necessarily indicate a platform's ability to figure out content's copyright authorization status. China should retain adopting the no copyright general monitoring obligation even considering that the public law obligation has been contextually emphasized as a mandatory obligation to platforms.