Normative Conflict Research Articles

Land-Law Reforms in Vietnam and Myanmar: “Legal Transplant” Viewed from Asian Recipients

AbstractThis paper focuses on the conflict of norms in the interface between the “transplanted” formal law and the local social norms in the land-law reforms in Vietnam and Myanmar, each representing different legal families, while sharing commonness in that both have attempted law-making in the post-colonial independence period in order to restore the basis of the livelihoods of the local population. Both of the legal concepts of “land-use right” (quyen su dung dat) in Vietnam and “land-use right for cultivation” (loat paing kwint) in Myanmar have been the product of law-makers’ restorative attempts at farmland security, while intentionally avoiding usage of the term “ownership” that would result in the capitalist transaction of land as a commodity. However, the contemporary land-law reforms led by donor-oriented “legal transplant” in these countries have resulted in the plunder of such policy, by reintroducing the same mechanisms of land exploitation as existed in the colonial days. Roaring protests of the local agricultural population seem to be a rising-up of the social norm descended from the immemorial past as an unwritten Constitution to bring an end to the centuries-long movement of “legal transplant” of the modern capitalist law.

Striking A Balance Between Legal Certainty, Justice And Utility To End The Clash Between Bankruptcy And Criminal Proceedings In Court Decision No. 11/Pdt.Sus-Gugatan Lain-lain/2018/PN.Jkt.Pst and No. 3 K/Pdt.Sus-Pailit/2019

The clash between bankruptcy and criminal proceedings is one of the obstacles which has been long faced by law enforcement officials. One of many examples of the intersection of the two proceedings is the case between the Bankruptcy Trustees of KSP Pandawa Mandiri Group dan Nuryanto with Depok District Attorneys. The case caused issues with the confiscated assets that were the objects in the bankruptcy and criminal court decisions. It stemmed from the conflict between provisions in Indonesian Bankruptcy Act and Criminal Procedure Code. This Note was conducted to analyze the judges' judicial decision-making concerning the three aspects of legal certainty, justice and utility as one way to resolve the conflict of norms. Generally, the Commercial Court and Supreme Court decisions have complied with the regulations of the prevailing laws and legal principles. However, the judgments are still not comprehensive and not quite right in the decisions. The Panel of Judges should not only stick on the legal certainty aspect but also the justice and utility aspects. Concerning the three aspects, the bankruptcy assets in the case should be handed over to the Bankruptcy Trustees.

Reliability of Notary Deals Issuing Authentic Assets Using Electronic Networks

This study uses normative research because this research is only aimed at the study of various written regulations. Referring to the provisions of Law of the Republic of Indonesia Number 2 of 2014 concerning the Position of Notary Public (Law No.2-2014), it’s known that Notaries have an important role and function in determining the validity of transactions in Indonesia. Even the Notary is also known as a trusted third party. Likewise, in the scope of the task of carrying out the position of a Notary, namely providing the evidence needed by the parties in a certain legal action, and the evidence is at the level of civil law, where the Notary prepares a deed because of a request from the attending parties. Without requests and requests from the parties, the Notary will not make any deeds, and in making the intended deeds, taking into account the evidence or statements or statements of the parties that are stated or explained or shown before the Notary. Then the Notary prepares systematically, straight forwardly, formally and materially in the form of a Notary deed. Conflict of norms between Article 15 paragraph (3) and Article 16 paragraph (1) letter m of Law no. 2 of 2014 can be completed by continuing to use Article 15 Number (3) of Law no. 2 of 2014 and can also make a notary deed in general as long as the implementation of the article is in accordance with Article 16 paragraph (1) letter m and Article 38 of Law No. 2 of 2014 and must also meet the elements in Article 1868 of the Civil Code which is a requirement for the authenticity of the deed.

Problems of legal regulation of copyright to official works in the IT sphere under the legislation of Ukraine

The article examines the problems of legal regulation of copyright in official works in the IT field. According to the results of the study, it is established that in the legislation of Ukraine, computer program — a set of instructions in the form of words, numbers, codes, diagrams, symbols or in any other form, expressed in a form readable by a computer, which actuate it to achieve a certain goal or result (this the concept covers both the operating system and the application program, expressed in source or object code). In this case, it is proposed to supplement the legislative definition with an indication that a computer program is an algorithm. It has been found that modern software, which often makes extensive use of graphic images, is more like a work of art than a literary one. Unlike literary works, the text of a computer program (source or object code) have no independent value without the possibility of their application in a computer. It has been established that the conflict of legal norms regarding copyrights to official works, including computer programs, also remains unresolved. It is illustrated that despite the existing presumption of authorship in the legislation, courts take into account only documentary evidence of such authorship. It is established that improper registration of relations between the employee and the employer, as well as the distribution of property rights to the object of copyright created by the employee is one of the most important mistakes in this area. It is proposed to legislate the content of the agreement on the creation of a computer program as an official work. In particular, the content of this type of contract is proposed to include conditions for the transfer of property rights, all methods and limits of use computer program as a service work, an indication of that from which moment the property rights are transferred to the employer. It is emphasized that the fact of transfer of property rights to a computer program as an official work should be confirmed by a separate act. Key words: legal regulation, copyright, official work, IT sphere, computer program.

Формирование, развитие и современное состояние системы Особенной части уголовного законодательства УК Франции

he study of the formation of the system of special part of the French criminal law is relevant. The importance of the research is determined by foreign experience value from the point of view of formation and development of criminal law norms. The latter regulates criminal prosecution for specific criminal acts from the perspective of economic development of the country. It enables us to draw a conclusion to implement a positive French experience into Russian criminal legislation. The main idea of this work is to study the main stages of the formation and development of the system of the special part of criminal law of France comitting reviewing in detail specific groups and types of criminal acts, which is not possible in one publication and will form the basis of the author’s subsequent publications.
 Problem statement. The criminal law of France today is an example of unification and harmonization of the criminal law system of European countries. Thus, for effective structuring of elements of the Special part of the Russian criminal legislation, it is necessary to study the experience of the special part of the French criminal legislation formation.
 The aim of the paper is to develop a scientific understanding of the main stages of the formation and evolution of the system of the special part of criminal legislation in the context of a possible design of certain provisions of the system of Russian criminal law based on the study of the experience of legislative presentation of specific criminal law norms in the Criminal Code of France.
 Research methods: dialectics, analysis, comparative legal, system-structural, formal-logical, specifically historical.
 Results and key conclusions: it should be noted that at the present stage of its development the Russian criminal legislation is not a perfectly structured system. This statement has been proved by a range of researches carried out by different specialists during recent years. In this regard, it was established that to improve the effectiveness of legal and technical design of the provisions of the Special part of the national criminal legislation, it is extremely important to refer to foreign experience taking into account conflicts of foreign criminal law norms and gaps made in the systematization of certain provisions of the Special Part.

Islamic Theological Studies at the University of Vienna

This paper deals with the legal basis for establishing Islamic theological studies at the University of Vienna and the corresponding conflict of norms between academic freedom and the right to (religious) self-determination. The author’s central claim is that the relevant legal provision is in accordance with neither the constitutional principle of equality nor the constitutional guarantees on the status of legally recognised churches and religious societies. The study begins with a comparison between the legal situations in Germany and Austria on Islamic theological studies. This is followed by a discussion of § 24 of the Islam Act of 2015, the main legal basis for Islamic theological studies, and a comparison with the legal status of Evangelical theological studies. Finally, the paper examines the role of the Islamic Community in Austria in the appointment of teaching personnel and its self-definition, based on its teachings, tradition and constitution.

Conflict of norms in Indonesia’s sustainable development policy: Mineral and coal mining sector

This study aims to identify the conflict of norms in the mineral and coal sectors particularly after issuing Law No. 3 of 2020. The type of this research is normative-legal research, which analyses the contents of some relevant Indonesian Law and some principles of law on Mineral and Coal. The data are qualified as the primary legal materials and collected through study documents. They are then analysed qualitatively. The main findings show that there is norm conflict post Law No. 3 of 2020 on the Amendment to Law No. 4 of 2009 on Mineral and Coal is enacted. The norm conflict can be seen in Indonesian sustainable development policy and law, such as Indonesian sustainable development the Law No. 16 of 2016 concerning Ratification of the Paris Agreement to the UNFCCC, The Presidential Regulation of No. 59 of 2017 concerning the Implementation of Achieving the Sustainable Development Goals, and the Low Carbon Development concept. Both the national policy and the Law will have significant effects on Indonesian commitment to reduce GHGs by 2030 to 29% with business as usual and to 41% with international supports. Relation of it with climate change issues is both the national policy and the law only accommodate the interests of coal industry players. but not the interests of the people in the mining areas and indigenous peoples. It means that the accommodation of mineral and coal industries’ interests will threaten the environment, as it is known that they are one of the worst contributors to GHGs in the world.

Tokyo Gubernatorial Election During Pandemic: Democracy VS "Demo" Crazy

COVID-19 has plunged the world into chaos. Global cases increase every day, impacting economic, social and political sectors. Japan is among the impacted countries. How does it deal with the pandemic? The aim of this article is to examine the election in the Tokyo Prefecture area during the pandemic. It is a gubernatorial election that was held on July 5, 2020. The election was held when a seat vacancy occurred as demanded by democratic processes. At the same time, the election was held while the COVID-19 pandemic was spreading across the country, which included Tokyo. Therefore, this article juxtaposes the term democracy against "demo"crazy (you crazy) to show the conflict of norms between the demands of democracy and the madness of holding elections when the situation is considered inappropriate. The term “demo”crazy is a mix of Kelantan Malay words representing you and crazy (madness). The combination of the words translates as "you are crazy." It also reflects that holding elections at the wrong time is considered to be madness. How did the candidates conduct their campaigns and the voting? What was the content of the campaigns during the pandemic? What was the effect of the elections? This study uses the library research methodology to answer these questions. This study found that the demand for democracy was more important than waiting for a possible recovery in the situation. Although holding an election was considered a crazy move, as a supporter of democracy, an election was still considered to be a priority.

Pengobatan Medis oleh Perawat dan Bidan dalam Manajemen Terpadu Balita Sakit

This study analyzed a normative legal research on conflict resolution of norms of legislation related to the implementation of Integraded Management of Childhood Illness abbreviated as IMCI or Manajemen Terpadu Balita Sakit abbreviated as MTBS which discusses two problem fornulations, namely: first, are nurses and midwives have authority to conduct medical treatment in the application of MTBS? Second, what are the juridical consequences of medical treatment by nurses or midwives in the application of MTBS? This research uses a statue approach and conceptual approach. Nurses and midwives do not have the authority to provide medical treatment in the application of MTBS on the basis of Permenkes Nomor 25 Tahun 2014 tentang Upaya Kesehatan Anak Pasal 25 ayat (2) dan ayat (3) that MTBS is performed by trained nurses and midwives and in its implementation should be supervised by the doctors who have been trained, as this may lead to conflict of norms of existing legislation because of the authority to make clinical decisions based on the diagnosis of a disease and medical treatment efforts in the application of MTBS is the authority of the medical or doctor as regulated in Undang-Undang Nomor 29 Tahun 2004 tentang Praktik Kedokteran Pasal 35 ayat (1). Health workers in carrying out practices should be conducted in accordance with the authority based on their competence to ensure legal certainty and sense of justice in order to improve the welfare of the community. On the one hand providing protection for doctors, nurses and midwives and on the other hand provides protection also for users of health services to achieve a quality service, safe, non-discriminatory and remain affordable.

Gender norm conflict and marital outcomes

AbstractWe investigate the impact of male–female conflict over gender norms on marital outcomes. As marriage requires mutual agreement regarding the role of husband and wife, we hypothesize that a person who is less likely to encounter a potential mate with similar gender norms will face a lower chance of marrying. Even if two parties marry despite a difference in gender norms, their marriage may be more vulnerable to external shocks, making divorce more likely relative to their counterparts without gender norm conflict. Finally, we predict that in the presence of gender norm conflict, high-skilled individuals may be less likely to get or stay married relative to low-skilled individuals, as the former group faces better outside options. Estimates from an analysis of U.S. marriage markets differentiated by birth cohort, state, race, and skill level support our theoretical predictions. Additional extensions explore heterogeneous effects and additional outcomes such as the presence of children in the household.

Perkawinan Beda Agama dalam Perspektif Hak Asasi Manusia di Indonesia

Presence of law number 1 Year 1974 about marriage can not provide legal protection as a whole in every marriage phenomenon, particularly in marriage different religions in Indonesia. Marriage law legitimately based on religion, but on human rights as privileges asserted freedom and marriage customs, embraced religion as a fundamental right that cannot be intervened by anyone. Problems of research 1) How marriage settings different religions in Indonesia? 2) How different religious marriage is a logical consequence of human rights perspective? This research is normative method, legal research with the study of the library of primary and secondary legal materials. Based on the findings of the research: 1) the Act of marriage has not provided certainty for couples who make marriage difference religion, there’s still a void marriage norms about different religions and conflict norms regarding legitimately marriage. 2) Different religious marriage discriminatory, religion is fundamental right that has been reserved and disinterfacking, the phenomenon raises consequences for one party with bowed themselves follow the religion of her partner. The Government expected to conduct observations regarding the effectiveness of the rules marriage and harmonization in Indonesia was not going empty, blurred or conflict of norms.

Constitutional Courts and International Investment Law in Latin America: Between Escalation and Conditional Coexistence

Constitutional courts are important actors in the development of international investment law). I argue here that constitutional courts can exert more influence and protect human rights and national constitutional values more efficiently if they operate within a method of conditional coexistence. This path implies that constitutional courts manage normative conflicts between investment agreements (IIAs) and a national constitution by defining a set of minimum conditions that IIAs must satisfy before they enter into force. The very exercise of setting conditions for IIAs can allow a constitutional court to monitor the application and interpretation of that IIA, providing themselves with leeway to react to a range of possible dynamics in respect of the future development of an investment treaty.

On the Structure of Specialized Norms of Contemporary Russian Law

This article examines theoretical issues related to specialized norms of modern Russian law. The author determines their status, types, provides a reasoned author's position on the issue of their structure, which is closest to the structure of regulatory norms of law, but has specific features. Among the specialized norms of law, conflict norms, consisting of a hypothesis and a disposition, stand out.

Education for tolerance in the context of globalization

The globalization process, which originally dominated only the economic sphere, subsequently led to profound social, political and cultural transformations, having a significant impact on culture and identity. In this context, tolerance is becoming a fundamental source of the peaceful coexistence of multi-ethnic and multicultural societies, facilitating cooperation and avoiding confrontations/ conflicts of values and norms. Education for tolerance has become an effective means of preventing intolerance, propagating an indulgent and constructive way of thinking, expressed by respecting the norms of social coexistence and tolerant behavior.

Norm conflicts as governance challenges for Seed Commons: Comparing cases from Germany and the Philippines

A Seed Commons approach can help to highlight the common struggle of diverse seed initiatives in the Global North and South in light of the dominant pathway of enclosure and commodification of seeds that threatens food sovereignty and cultivated plant-genetic diversity. In this paper, the Seed Commons framework is applied to show how the conflicting norms and rules of the international regime complex surrounding seeds shape the scope of action for Seed Commons in Germany and the Philippines. The analysis shows that the patent and variety protection regimes have strongly influenced the design of national seed marketing and threaten to outlaw practices of Seed Commons. Despite limited practical impact for Seed Commons initiatives (so far), the norms of the Nagoya Protocol and the Seed Treaty have contributed to exceptions in national seed marketing law that provide essential scope of action for Seed Commons initiatives in Europe and the Philippines.

The Legal System Application Affect Factors in Preventing HIV / AIDS Transmission in Bali

The issue of HIV/AIDS as a human rights issue in relation to public health has in principle become a topic of conversation in international public health law. In 1946, the World Health Organization (WHO) proclaimed that the highest success of a goal of public health standards was success in the treatment of HIV/AIDS as a fundamental issue of human rights. According to the last data of November 2019, Bali was ranked in the top five cases of HIV/AIDS with the number of PEOPLE with HIV/AIDS reaching 22,034 people. Of the number of cases nationally, Bali ranks number five after DKI Jakarta and West Java, even if reviewed from the average percentage compared to the population, Bali ranks in the top two nationally after Papua. The data when compared to the previous two years data is very different, where in 2017, Bali is still ranked sixth nationally. This article reviews Factors that affect the application of the legal system in preventing the transmission of HIV / AIDS in Bali Province. This research is a normative juridical research. Designed using the statute approach and conceptual approach. The results showed that Factors that affect the application of the legal system in preventing the transmission of HIV / AIDS in Bali Province are Multi-interpretation due to conflict norms in various cases about HIV/AIDS in Indonesia.. However, it needs Immediately formulate improvements or spelled out in the Regulation of the Governor of Bali to be more synergistic fundamentally in terms of HIV/AIDS Prevention, especially its transmission management and elimination namely to The Regional Regulation of Bali Province No. 6 of 2014 on Child Protection; Local Regulation of Bali Province No. 4/2019 on Indigenous Villages and Local Regulations of Bali Province No. 3/2006 on HIV/AIDS Prevention, as well as adjusting the Laws and Regulations on it.Keywords: HIV/AIDS, Legal System Application, Bali

Konsekuensi Yuridis Berlakunya Perjanjian Perkawinan Pasca Putusan Mahkamah Konstitusi Nomor 69/PUU-XIII/2015

Philosophically PMK (Constitutional Court Decision) Nr. 69/PUU-XIII/2015 based on way of life, awareness, and legal ideals such as the mystical atmosphere and Indonesian Nation according Pancasila and The Constitutional of The Republic of Indonesia Article 28E Paragraph (2). Sociologically, based on legal needs society regarding the leniency when the marriage agreement was made that is the phenomenon of a husband and wife for some reason feels they needed to make a marriage agreement after the wedding day was held. Juridically, the issuance of PMK Nr. 69/PUU-XIII/2015 is not solely on the basis of unconstitutionality, but also on a conflict of norms between Article 29 Paragraph (1) of Act Nr. Year 1974 with general provisions of the ageement in Book III Code of Civil Law. Referring to PMK No.69/PUU-XIII/2015 which was strengthened by Act Nr. 2 Year 2014, Notary has the right to ratified the marriage agreement into an authentic deed so that there is no justifiable reason for the Department of Population and Civil Registration and Office of Religious Affairs rejects the authentic nature of the deed which is validated bay notary.

Ugovor o prodaji sa posebnim osvrtom na značaj tretmana cene - pravno-ekonomski osvrti, dileme i perspektive

In modern business conditions, due to the process of globalization, deregulation and liberalization, sales have reached enormous proportions in the world. It is for these reasons that sales contracts in international trade are of great importance today. Also, the development of industry and economy, as well as the development of multinational and transnational companies, has led to a huge expansion of the range of goods that become the subject of economic trade and thus contracting, since the sales contract has economic and legal effects, but also different conflict norms, dilemmas and treatments. Given the increase in prices in all business segments and the fact that foreign trade has reached enormous proportions in the world, sales contracts in international trade are of great importance today. Also, the development of industry and economy as well as the development of multinational and transnational companies has led to a huge expansion of the range of goods that become the subject of economic transactions. treatment of items and prices, different points of view.

Right to a name: cross-border family-legal aspects of implementation

The increase of cross-border contacts of individuals has shifted the emphasis in modern studies of the right to a name in Civil and Family law to Human rights and Private International Law. The article examines the problems of cross-border implementation of the right of an individual to a name, which are a consequence of state control over the circulation of names, as well as conflicts of national laws. The author offers to get acquainted with the practice of the European Court of Human Rights and the Court of the European Union, which serves as an illustration of the peculiarities of the implementation of the right to a surname in the context of convergence of legal systems. The proposed court decisions demonstrate new approaches to protecting the right of an individual to a surname and open the way to the formation of an internally consistent, coherent system of rules governing the right to a name. The article analyzes the international private legal aspects of the implementation of the right to a surname; special attention is paid to the conflicting principles of determining the law to be applied. The author concludes that domestic practice of assigning surnames should seek to achieve legal certainty. Such practice should not interfere with the exercise of the right to respect for private and family life, freedom of movement and choice of place of residence, or discriminate. Taking into account the results of international justice, national rules on names, conflict of laws norms require revision and updating. The consistent application of lex personalis in determining the applicable law can lead to situations in which the identity of the individual will be in doubt. The solution to this problem is seen not only in improving conflict of laws approaches, but also in the mechanism of recognition of foreign administrative acts. The implementation of this proposal will eliminate lame relationships, ensure legal certainty and stability of the person’s status. The author also proposes to distinguish between conflict of laws rules governing family status and conflict of laws rules governing civil status of an individual.

ПРИМЕНЕНИЕ НОРМЫ О ЛИЧНОМ СТАТУТЕ ЮРИДИЧЕСКОГО ЛИЦА В ХОДЕ РАССМОТРЕНИЯ ГРАЖДАНСКИХ ДЕЛ

The decisions and activities of legal persons have consequences in many states, some-times giving rise overseas to disputes arising out of contracts, torts. The foreign element in such cases raises a number of difficult questions related to the legal status of the subjects of these relations: whether a legal entity created under the laws of one state is recognized as such in another state where it is engaged in economic activities; the laws of which state determine the legal capacity of a foreign legal entity? - etc. The answers to these questions may be found by means of the personal statute of a legal entity (lex societatis). The personal statute of a legal entity (lex societatis) is commonly referred to as the law, determined on the basis of a conflict of laws rule, to be applied to the totality of relations related to the legal entity and complicated by a foreign element, or at least to the main part of such relations. The application of the personal statute of a legal entity is relevant in civil cases in which at least one of the parties is a foreign corporation. This statute has to be resorted to in the case of a dispute on the merits, as well as in a number of other cases: determining the legal status of the disputing parties at the stage of initiation of the case and its subsequent resolution, checking the powers of the parties' representatives, etc. The court must examine the legal status of the corporation as a party to the proceeding before deciding on the applicable law. The purpose of this article is to analyze the practice of application by Russian courts the personal statute of a legal entity in resolving a number of procedural issues related to the determination of the legal status of the disputing parties, the verification of the credentials of the parties' representatives. The article provides an analysis of the content of the mentioned conflict of law norm, which is designed to help courts in their activities. The improvement of the investment climate in the state, the attractiveness of the national jurisdiction for economic activity, the stability of the civil turnover in general depend on the effective protection of the rights and legitimate interests of participants in corporate conflicts through justice. The study of features of the judicial form of protection of violated rights and interests in the light of the foreign element is of enduring theoretical and practical importance.