Major Legal Systems Research Articles

DIPLOMATIC CUSTOMS IN THE PERSPECTIVE OF FORMAL SOURCES OF LAW

Custom is considered a formal source of law, but this interpretation and qualification varies from one national system to another, depending on the national system's membership of the major legal systems.
 In public international law, custom has been maintained as the source of this branch of law, especially in the field of diplomatic law, an aspect that is also the object of this study.

The Role of Ombudsman in the Protection of Human Rights in the Kingdom of Bahrain

The evolution of the institution of Ombudsman in retrospect shows that changes in the western system of administration from time to time and the recognition of various new kinds of rights and interests by the States at the national and international levels called for the introduction of Ombudsman as an addendum to the system of administration of justice. Because of fundamental changes in the system of government Ombudsman came to perform distinct functions at different times such as investigation, mediation, dispute resolution etc. And this was done in relation to various sectors of society such as business, education, health, transport, and commercial undertakings. In major legal systems it has come to play a significant role in human rights. The Kingdom of Bahrain also has established in its administrative system the machinery of Ombudsman for the protection of the Human Rights of the individuals.

Izučavanje islamskog prava na Pravnom fakultetu u Sarajevu u periodu 2005−2013. godine / The Study of Islamic Law at the Faculty of Law in Sarajevo 2005-2013

As one of the world’s major legal systems, Islamic Law is being studied at a number of academic institutions while applying different methodologies as a part of different institutional frameworks. The subject of this research is the study of Islamic Law as a part of the Department of Legal History and Comparative Law, Faculty of Law in Sarajevo, in the period between 2005 and 2013. The research is based on the analysis of the detailed teaching curriculums; textbooks and additional literature used for courses at graduate, postgraduate and doctorate studies. Considering the fact that this topic is being researched as a part of two scientific disciplines: comparative legal history and history of law and state of Bosnia and Herzegovina, the scope of research is sufficient for the profile of staff attending the Faculty of Law.

THE COMPLIANCE WITH THE RIGHT TO A DOUBLE DEGREE OF JURISDICTION IN THE MATTER OF PLEA AGREEMENT

The expansion of negotiated justice phenomenon has generated and continues to produce profound reverberations in current legal systems. The emergence and development of proprietary forms of manifestation of the concept has led to important structural changes in the procedural architecture of all contemporary jurisdictions, regardless of their origin, continental or common-law. The collision of this new form of accomplishing justice and public safety with the established landmarks of the classic criminal process has led to a paradigm shift in relation to the nature and consistency of the fundamental rights of participants in the criminal process. 
 One of the most important such rights is the right to a double degree of jurisdiction in criminal matters, a principle widely embraced by all major legal systems. The interference of the landmarks on which representative institutions for the idea of negotiated justice are based on with this principle has caused many controversies regarding its imminent dissolution, discussions found even at local level, with the introduction of the special procedure of the plea agreement in the current Code of Criminal Procedure.

Comparison of Iranian Civil Law and International Law on Termination of Contracts

The expansion of relations between countries has led to an increase in international transactions, and since trading and economic activity in general require special legal rules, in some cases, according to international transactions, the rules in the world's major legal systems enter the international arena. These rules have sometimes been agreed upon by countries to adapt to the needs of international trade by amending the relevant documents. In the present article, the research method has been library and also the collection of information has been descriptive, analytical and comparative methods. In the end, some rules can be obtained, including the rule of cancellation due to the anticipation of breach of referred to in Article 72 of the Convention on the International Sale of Goods. According to this article, if it is revealed before the due date that the obligation will not be reasonably fulfilled, such as if the obligor declares that he will refuse to fulfill his obligations, the other party may announce his decision to terminate the contract by sending a statement. If the obligor refuses to provide an appropriate guarantee for the performance of the contract, the obligee will have the right to terminate the contract.

Common Law pravna norma

In this paper the author attempts to define the otherness of common law legal norm in relation to that of a civilian one, through the analysis of differences identified in their formation and language. The first part deals with similarities and discrepancies in the process of creating a legal norm within two major legal families, examining the operational particularities of the two fundamentally different norm-creators. In this respect, the paper presents essential dissimilarities between the activities of a parliament as a legislator, opposed to an Anglo-American court as a creator of a binding precedent. The second part is dedicated to the analysis of the language of legal norm in two major European legal systems. The paper examines the language structure both in common law and civilian legal norms, as well as its limitations based on the particularities of forums in which they were created: the parliament and the court.

Корпорации и корпоративные финансовые инструменты в российском и зарубежном праве

Introduction: the paper investigates the legal regime of corporate financial instruments in the context of the convergence of the world legal systems taking into account historically determined national differentiation. We study the legal regime of corporate financial instruments with respect to the status peculiarities of a corporation as a subject of legal relations and the regime characteristics of a financial instrument as a legal object. The purpose of the study is to analyze and generalize the legal experience of economically developed countries and to explain the modern legal content of the concept ‘corporate financial instrument’ against the related legal terms ‘securities’, ‘financial instrument’, ‘corporation’; to reveal major problems in the doctrine and positive legal regulation. Methods: comparative-legal, formal-logical, historical, analytical, empirical methods, and legal modeling. Results: the analysis of Russian and foreign experience made it possible for us to explain the specific nature of the legal status of corporation as the main component of modern economic systems, which determines special legal regimes of financial instruments that provide certain corporate rights. Conclusions: in terms of comparative analysis, of special interest is legal experience of such countries as Germany, France, Great Britain, and the USA since these countries show a higher level in the development of corporate legal forms and financial markets. Since early 1990s, Russia has been demonstrating high rates in the formation of the system of financial instruments circulation, which, with respect to the legal development of the corporate legal entity doctrine, brings Russian legal system closer to the world major legal systems. In the light of the focus on the sustainable economic development and defense of state interests with the use of modern digitalization methods, this also objectifies and makes currently relevant the development of the national legal regime of the corporate financial instrument based on the international legal experience.

BATAS-BATAS KONSTITUSIONAL HUKUM ISLAM DALAM HUKUM NASIONAL

Indonesia is known as a country with a mixed legal system. The legal system currently in effect is dominated by three major legal systems, namely the Western legal system, the customary law system and the Islamic legal system. The basic rules that serve as guidelines and guidelines for citizens are extracted from the value system. This value system is expressed in the form of "collective agreement". This form of collective agreement is translated into the five basic principles of having a state, namely Pancasila. Within these limitations, there are gaps in applying Islamic teachings, which are limited to their substantive value. This study wants to explain why Islamic law cannot be used as the basis of the constitution and the extent to which the limitations are allowed in applying Islamic teachings as the teachings of the majority of Indonesian citizens. In responding to the issues surrounding the application of Islamic law in Indonesia, the discussion will focus on the concept of the constitution, sources of national law, and the form of the Muslim community's strategy in an effort to apply Islamic law within the national legal framework.

Legal Standing of Pre-Contractual Good Faith Principle as a Law Reformation of Indonesian Contract Law

Good faith plays an important role in a contract since it holds a dominant position either during pre-contractual phase or when a contract is executed. However, pre-contractual good faith in Indonesian Civil Code is not recognized as such thereis no legalassurance. In fact in pre-contractual stage, the parties already put some investment based on trust and hope, however, they faced dead end and they did not reach an agreement. This was tinted with the fading of wall between two major legal systems: CommonLaw System and Civil Law Systemas a result of dynamic in business relation involving countries bringing some developments in contract law. The extension in the substance of good faith in Article 1338 verse (3) of the Civil Code should not be implemented so grammartically that good faith does not only appear during the execution of the contract but it should also be interpreted during the whole process of the contract that good faith should lay the foundation of the parties relation both in pre-contractualphase and during the contract such that the good faith in Article 1338 verse (3) of Civil Code functions dynamically. In UPICC, the provision of good faith is stipulated in Article 1, 7 stressing on the importance of good faith and fair dealing. This stressing underlays the process of contract agreement. Good faith should be interpreted and formulated during the whole process of contract. Under the traditional doctrine of Common law, court cannot punish the defendant because Common Law system does not recognize the good faith principle in negotiation process. Nevertheless, modern law contract waives the legal assuranceto reach a substantial justice that good faith is not only applied in a contractual relation but also in a pre-contractual. Meaning, good faith does not only bind upon matters explicitly stated in the agreement, but also upon ones that traditionally are required by appropriateness, tradition, or the law as stipulated in Article 1339 of the Civil Code and Article 6:248 of Netherlands NBW. The good faith and fair dealing principlesshould be the underpinningof contract law. Each party should uphold the principles of good faith and fair dealing in the whole process of the contract starting from negotiation, contract arrangement, the execution of the contract as far as the termination of the contract particularly in the reformation of Indonesian future contract law

Legal Standing of Pre-Contractual Good Faith Principle as a Law Reformation of Indonesian Contract Law

Good faith plays an important role in a contract since it holds a dominant position either during pre-contractual phase or when a contract is executed. However, pre-contractual good faith in Indonesian Civil Code is not recognized as such there is no legal assurance. In fact in pre-contractual stage, the parties already put some investment based on trust and hope, however, they faced dead end and they did not reach an agreement. This was tinted with the fading of wall between two major legal systems: Common Law System and Civil Law System as a result of dynamic in business relation involving countries bringing some developments in contract law. The extension in the substance of good faith in Article 1338 verse (3) of the Civil Code should not be implemented so grammartically that good faith does not only appear during the execution of the contract but it should also be interpreted during the whole process of the contract that good faith should lay the foundation of the parties relation both in pre-contractual phase and during the contract such that the good faith in Article 1338 verse (3) of Civil Code functions dynamically. In UPICC, the provision of good faith is stipulated in Article 1, 7 stressing on the importance of good faith and fair dealing. This stressing underlays the process of contract agreement. Good faith should be interpreted and formulated during the whole process of contract. Under the traditional doctrine of Common law, court cannot punish the defendant because Common Law system does not recognize the good faith principle in negotiation process. Nevertheless, modern law contract waives the legal assurance to reach a substantial justice that good faith is not only applied in a contractual relation but also in a pre-contractual. Meaning, good faith does not only bind upon matters explicitly stated in the agreement, but also upon ones that traditionally are required by appropriateness, tradition, or the law as stipulated in Article 1339 of the Civil Code and Article 6:248 of Netherlands NBW. The good faith and fair dealing principles should be the underpinning of contract law. Each party should uphold the principles of good faith and fair dealing in the whole process of the contract starting from negotiation, contract arrangement, the execution of the contract as far as the termination of the contract particularly in the reformation of Indonesian future contract law

Der aktienrechtliche Aufsichtsrat im internationalen Vergleich

All major legal systems, in particular those of Russia, Germany, USA, UK and France, know the legal form of corporation. But the corporate structure differs significantly, depending on the applicable national law. Whereas German law applies a two-tier system, consisting of two corporate boards, the UK and the USA use a one-tier system and Russia and France adopt a mix of both systems. This article analyses the different corporate structures, shows their respective reasoning, points out legal inconsistencies and suggests possible solutions.

Comparison of Major Legal Families; a Reference of Nepal

Major legal system i.e. common legal system, civil legal system, socialist legal system, Islamic legal system and Hindu legal system are dominant across the globe to maintain law and justice. Initially all these legal systems had separate identity. But, these legal systems are operated in hybrid form sustaining their previous legacy to the large extent in contemporary time. Common legal system accepts precedent as a primary source of law whereas civil legal system doesn’t recognize it. As a philosophical thought, Islamic and Hindu religions are based on their religious scriptures and practices. Nowadays religious philosophies are amalgam either with common law or civil law or socialist legal system. Because of the globalization, it is expected that the legal system of the world is going toward homogeneity rather than heterogeneity. Uniformity is expected out of heterogeneity concept of world legal system. International law and multilateral agencies supported to unify the world legal system. There is the unification and harmonization process of the world legal system. In a long run, the world communities are going to follow similar principles but the sanction provision may vary from country to country in upcoming era of legal regime. Legal system is necessary to follow by the application of consensus approach. Better practices can be adopted and received or interchanged from all kinds of legal system for the betterment of own legal system.

A LEI COMO PRINCIPAL FONTE FORMAL ESTATAL

A doutrina alude à existência de dois grandes sistemas jurídicos: o denominado sistema romano-germânico (ou civil law), no qual a lei figura como a principal fonte, e o sistema anglo-saxão (ou common law), no qual os precedentes judiciais adquirem status fundamental. O presente artigo tece breves considerações sobre a lei enquanto principal fonte formal estatal do Direito brasileiro.

Perspectives on theory of legal interactionism

To clarify the nature and existence of the norm, we need to be aware of the domains through which it can be analysed. Wibren van der Burg, through the theory of legal interactionism, considers that the study of the norm, construction and its effects must be achieved through three main areas: legal sociology, legal philosophy and as a measure of completion and uniformity, the legal doctrine.[i]An interdisciplinary approach leads to the best conclusions;[ii]otherwise four debates have emerged between the three disciplines in the understanding and interpretation of the norm. First of all, the distinction between the norm written(institutional) and the norm practised(interactive). Philosophers and lawyers support institutional norm theory, while sociologists embrace the interactive norm.[iii] [i]The importance of the legal doctrine specializing in civil systems, considered as sources of the norm, was well defensible. The legal doctrine is very important as it creates the legal vocabulary and the ideas that the legislator uses later. The doctrine sets out how the norm should be interpreted and understood. Often, the legislator offers the expression and effect of tendencies developed in doctrine or adopted norms that were created by theorists in Rene David, John E. C. Brierley, Major Legal Systems in the World Today. For example, in the People's Republic of China, the doctrine is not considered the source of law. More details see in Jiangyu Wang,Corporate Law in China. Regulation of Business Organizations in a Socialist Market Economy, University of Singapore, Edward Elgar Publishing Limited, 2014. [ii]Saane Taekemaand Bart Van Klink, On the Border. Limits and Possibilities of Interdisciplinary Researchin Saane TAEKEMA and Bart van Klink(eds), Law and Method Interdisciplinary Research into Law, Mohr Siebeck, Tubingen, 2011, pp. 8-9; Also see Douglas W. VICK, Interdisciplinarity and the Discipline of Law,31(2) Journal of Law and Society, 2004, pp. 163–93 quoted by Sanne Taekemaand Wibren van der Burg, Towards a Fruitfull cooperation between legal philosophy, legal sociology and Doctrinal Research: How Legal Interactionsim may Bridge Unproductive Oppositions, Law, Society and Community. Socio Legal Essays in Honour of Roger Cotterell, Edited by Richard Noblesand David Schiff, Ashgate Pub., London, 2014, p.131. [iii]Sanne Taekemaand Wibren van der Burg, op. cit. p. 131

中国大陆指导性案例司法适用研究 : 以2017年118个民商事案例为分析样本

In 2010, the case guidance system was formally established in Chin a, which is a great-leap-forward development of the orientation and application of previous cases in our judicial practice. After the establishment of the system, the Supreme People’s Court (hereinafter referred to as SPC) made it clear that judges should refer to or apply the guiding cases when deciding similar cases. This clarifies that the guiding cases is actually binding. By December 31, 2017, SPC has issued a total of 92 guiding cases. These cases have not only been published in batches, but also been uploaded to official website by SPC. The case guidance system meets the need of judicial practice in our country and also complies with the trend of the gradual merge of the two major legal systems. In this paper, 118 civil and commercial cases involving in guiding cases in 2017 are selected as the object of analysis, and the judicial practice of guiding cases is studied from both macro and micro perspectives. The macro perspective mainly concentrates on the application of guiding cases in Local People’s Court at all levels across the country. The micro perspective focuses on the study of specific judgment documents. From real and concrete data, we can find out the characteristics of the judgment documents, and analyze the problems in the operation of the case guidance system, and put forward feasible suggestions to improve the system.

AUTONOMOUS VEHICLES AND TORTIOUS LIABILITY: AN ISLAMIC PERSPECTIVE

The advent of autonomous vehicles, ongoing trials and the likelihood of operational liabilities from operational accident possess some challenges in major legal systems around the world. Existing tort rules seem unsuitable for the regulation of liability in this circumstance. Attempts are being made to seek regulatory reforms which conform to specific legal environment. Expectedly, Muslim countries and Gulf States in particular might want to consider Islamic law principles and legal norms of the societies in formulating applicable laws. This article is a futuristic and proactive attempt to smoothen the legal riddles surrounding autonomous vehicles from an Islamic jurisprudential perspective. The deductive research technique known in Islamic jurisprudence as qiyās (analogical deduction) is adopted to derive new law for new cases. This paper finds that existing Islamic law rules are capable of providing guidepost for the reception of this technology in Muslim countries.

AUTONOMOUS VEHICLES AND TORTIOUS LIABILITY: AN ISLAMIC PERSPECTIVE

The advent of autonomous vehicles, ongoing trials and the likelihood of operational liabilities from operational accident possess some challenges in major legal systems around the world. Existing tort rules seem unsuitable for the regulation of liability in this circumstance. Attempts are being made to seek regulatory reforms which conform to specific legal environment. Expectedly, Muslim countries and Gulf States in particular might want to consider Islamic law principles and legal norms of the societies in formulating applicable laws. This article is a futuristic and proactive attempt to smoothen the legal riddles surrounding autonomous vehicles from an Islamic jurisprudential perspective. The deductive research technique known in Islamic jurisprudence as qiyAs (analogical deduction) is adopted to derive new law for new cases. This paper finds that existing Islamic law rules are capable of providing guidepost for the reception of this technology in Muslim countries.

With a Representative Example the Roles of Reason and Emotion in Western and Islamic Legal Systems

The core of this study is to show the role of emotion and reason in two major legal systems, namely the Western and Islamic legal systems. Firstly, I will portray the two systems without any detail, in order to show emotion and reason balances in each of them. After that, I will choose a representative example to explain and state how they follow different roads of approach to reach an understanding of the balance between reason and emotion. As an assumption, it would be safe to say Western law is more widely known. Therefore, I will focus primarily on an illustration from Islamic Law using as my example a facet of Family law, a special kind of separation “lian or mulahana” which, I think, clearly represents the outlook of Islamic law on emotion.

A History of Law and Its Influence on Modern Criminal Law of Common and Civil Legal Systems

Since the beginning of time law has evolved and developed, impacting all aspects of every legal system in the world today. Mosaic law, Ur-Nammu, Hammurabi, and Pharaonic laws have been instrumental in the formation of today’s legal systems. After a discussion of relevant history, a comparison will be made between the common law systems of the USA, and civil law system of Egypt to illustrate how early law has influenced the bedrock of justice and its application in modern criminal law of two of the world’s major legal systems.

Cloud Crypto Land

The supposed disruptive and transformational potential of blockchain or distributed ledger technology (DLT) has received widespread attention in the media, from legislators, as well as from academics across disciplines, including law, over the past few years. While much of this attention revolved around the cryptocurrency Bitcoin (and its numerous cryptocurrency offshoots), many see the real promise of blockchain technology in its potential use for organising transactions in real assets, including shares and other securities, as well as for facilitating self-executing “smart contracts”, which replace vague and imprecise natural language with precise and unambiguous computer code. Focussing mainly on non-currency applications of blockchain technology, I present a simple legal argument that seeks to demonstrate the impossibility of a meaningful blockchain-based economic system. I argue that features present in all major legal systems mean that real assets cannot be traded on blockchain-based systems, unless design choices are made which necessarily remove all advantages the technology offers over existing solutions. The same argument is shown to apply to so-called smart contracts. The paper further argues that there is no reason to expect legislators to change current legal principles in sufficiently dramatic fashion so as to carve out a space in which (non-currency) applications of blockchain technology can usefully be implemented, since the oft-promised potential efficiency gains supposedly stemming from the adoption of the blockchain technology are based on a flawed analysis of costs and benefits. Legal and practical obstacles therefore mean that, outside its original and circumscribed realm of cryptocurrency, blockchain technology is highly unlikely to transform economic interactions in the real world. Instead, it is argued that – depending on the specific implementation – blockchain technology is either pointless or useless for transactions in traditional assets.