Positive Legal Norms Research Articles

HARMONISASI NORMA HUKUM BAGI PERLINDUNGAN HAK KEPERDATAAN ANAK LUAR KAWIN DALAM SISTEM HUKUM INDONESIA

Communities and laws have long discriminated against children outside of marriage. This causes out of wedlock children to get a negative stigma in their daily lives. People call it with various terms such as: “anak haram”, “haram jadah”, “anak kowar”, “anak astral” and so on. Until now Indonesian law distinguishes the status, position and rights of children out of wedlock. An urgent issue to be resolved is disharmony in written legal norms that regulate the protection of children outside of marriage. The research objective is to evaluate and harmonize the legal norms that exist in the field of protection of civil rights of non-married children. Harmonization of these legal norms is based on the practice of legal protection, doctrine, and written norms that are directly related to the protection of extramarital children in Indonesia. This research is a complement to the dissertation. In this research, an inventory of positive legal norms in the field of status and position of out-of-child children, legal practices relating to the protection of children outside of marriage and the relevant legal theory to see the possibility of protection of children's rights. In this research, mapping of norms and institutions will be conducted to find out the parts that are conflicting / incompatible with each other, as a basis for formulating harmonization of laws and regulations in the field of status and position of children outside of marriage. From this harmonization, it is expected that norms that need to be revised will be found and formulas for norms that provide protection for civil rights for married children in Indonesia. Outputs are in the form of: draft dissertations that have been approved by promoters, reputable international scientific publications, accredited national publications, speakers of national and international meetings, and additional outputs in the form of draft reference books.

Optimalisasi Akad Mudharabah Dalam Perbankan Syariah

The principle of mudharabah is a unique part of Islamic banking products, because it has a philosophical difference between the conventional banking system and Islamic banking which adheres to the principle of profit or loss. Mudharabah is a partnership business covering capital owners (Shahib al-mal) and business actors (mudharib), aiming to gain profit (al-ribh) and divided according to agreement in the contract. This research is library research. While this research approach uses a statute approach, because the problems in this study are approached with positive legal norms and Islamic law. The purpose of writing scientific papers is to determine the extent to which Islamic banking in optimizing Mudharabah contracts as products in Islamic banking. The results of this study are one of the institutions that can guarantee the continued maintenance of compliance with Sharia or Islamic law is the DSN-MUI which gives sharia compliance compliance authorities (Shariah Compliance) is the Sharia Supervisory Board (DPS). The implementation of the Mudharabah contract in the Islamic banking system is one form of banking compliance with the sharia principles that DPS-MUI has applied to Islamic banking.

Pravni tretman klauzule bez osporavanja u ugovoru o licenci sa aspekta prava konkurencije

In this paper, the author explores the legal treatment of no challenge clauses in license agreements. In effect, these clauses prohibit a licensee to challenge the validity of intellectual property rights which are the subject matter of a license agreement for a specified period, usually within the duration of the contract. The author analyzes the legality of contracting the no challenge clause in license agreements from the aspect of European Union Competition Law, given the fact that there are still no positive legal norms governing this institute in Serbian competition law.

«Judicial Finding» of the Legal Nature of Cryptocurrency

In the current article the legal nature and properties of the cryptocurrency phenomenon are disclosed through the analysis and comparison of the results of «judicial finding» of law that are recorded in the judicial acts. The author reveals, that judicial law of the different jurisdictions goes on the path of recognition of the bitcoin’s (and other cryptocurrencies) nature as the phenomenon that possesses the basic legal properties of money. It is established, that judges in the predominant majority use the following definitions for the characteristic of cryptocurrency: a decentralized currency; an asset that serves as a means of exchange and/or a measure of value; an anonymous digital currency; a virtual currency; an asset that serves as a means of payment; a digital production; an anonymized settlement system; a non–traditional money, etc. The author shows, that cryptocurrencies (in that sense in which they are interpreted in judicial law) have attributive properties that are inherent for the anthroposociocultural phenomena: cryptocurrencies are existentially rooted, they have a spontaneous and at the same time procedural character, they dynamically transformed into the universal phenomenon from the local phenomena, cryptocurrencies act as a natural way of self–regulation, distribution, redistribution and exchange of goods in society between its representatives, primarily in the private sector. The author substantiates the fundamental sense of the «judicial finding» of the legal nature and properties of cryptocurrency, which consists in the synthesis of the pluralistic nature of both crucial phenomena of social life – law and money: cryptocurrencies, as the phenomena that possess the qualities of money, act as the objects (subjects) of the factual life relations in which the question about the law raises. Thereby in the article it is once and again confirmed the full reliability and validity of one of the main Eugen Ehrlich’s theoretical and methodological conclusions, which he made more than a century ago – the conclusion about the poly–ontological nature of law, which is under no circumstances limited to the positive law and therefore cannot be narrowed to the positive legal norms.. Keywords: method of the judicial finding of law; nature of law; legal nature of cryptocurrency (bitcoin); legal properties of cryptocurrency (bitcoin). Received: 22.02.2018   Accepted: 23.03.2018 https://doi.org/10.31861/ehrlichsjournal2018.02.024

Imovina vanbračnih partnera

The subjects of this paper are the property and the property relations between unmarried partners during their co-existance. Our law recognizes two property regimes for unmarried partners in terms of property relations: specific and common property regime and contractual property regime. Scientifically, the paper analyses the following topics related to property regime: the concept, the formation, management and disposition of common property and contractual property regime of unmarried partners, as well as the legal aspects of property relations between them. Due to this fact, the method utilised for this research is a legal method. It is used for the analysis of the legal norms that regulate the legal matter. The paper refers to the positive law that regulates the abovementioned property (de lege lata) and the future law related to the property of unmarried partners (de lege ferenda). In addition to the positive legal norms, this paper presents the aspects of the science of law regarding the property of unmarried partners. Based on the research it has become evident that the positive law regulates only the basic provisions concerning this property, which raises a number of issues regarding the implementation of legal provisions on the property of unmarried partners in everyday life.

Corporate social responsibility in global and local companies of Southeast Europe

The aim of this work is the analysis of theoretical assumptions and empirical research to find the answer to the question on how the activities in the field of corporate social responsibility in the region of Southeast Europe are present in the business of global and local companies market. Whether and to what extent to implement socially responsible behavior of companies with a different ownership structure, the revenue volume, market share, market activities and markets where it operates, and if the objectives of the companies are in line with the goals of social communities. they offer other than legal, and more benefits for their employees and provide them extra protection, whether, and to what extent, the state helps in carrying out socially useful activities and the compliance of the company's positive legal norms and international standards? The result of the research offered the conclusion that social responsibility activities in companies market of SE Europe are present in an increasing scope, a CSR program contributes to the awareness of the importance and necessity of such activities in the construction of a positive corporate image and relations of the companies with communities and stakeholders in the region.

The limits of the law and literature movement: An example of Sophocles

The limits of the law and literature movement: An example of Sophocles

Cuatro argumentos sobre la falacia cognoscitivista

En este trabajo se recurre a cuatro argumentos con el fin de sostener que la posición metaética de la teoría estándar de la argumentación jurídica —el objetivismo moral— se sustenta en la comisión de una falacia que aquí se denominará «falacia cognoscitivista». Ésta consiste en la obtención infundada de conclusiones de deber-ser a partir de premisas del valer (valores o juicios de valor), y correlativamente, en la postulación de valores morales a partir de deberes jurídicos, esto es, la determinación de los juicios de valor desde las normas positivas. El embalaje teórico de dicha falacia es la tesis de la unidad de la razón práctica, como una fusión de diferentes dimensiones y momentos de nuestra «vida moral» en un solo continuum: el razonamiento jurídico. En el ámbito de las teorías del derecho constitucional-discursivas —de las cuales la de R. Alexy sería el mejor ejemplo—, esta fusión significa la equiparación entre los principios jurídico-constitucionales (normas jurídicas) aplicables a los casos concretos y los valores morales (preferencias axiológicas) relevantes a los mismos. Esta equiparación hace que la teoría de la argumentación —inicialmente concebida como una herramienta de validación moral de las decisiones jurídicas— devenga una herramienta acrítica de legitimación política del poder en los Estados Constitucionales.

GAGASAN PENGATURAN HUKUM PEMERIKSAAN PERSEROAN TERBATAS (Suatu Evaluasi Normatif terhadap Pasal 138 - Pasal 141 Undang-Undang Nomor 40 Tahun 2007 tentang Perseroan Terbatas)

Law No. 40 Year 2007 oblige good corporate governance. Practically, there is a chance to do wrongful act which cause bad corporate governance. Law No. 40 Year 2007 have some legal inconsistencies, so that cause uncertainty and unused legal practically. The idea of regulating on investigating of a company in forward has to develop of strengthening of legal certainty principle and legal utility principle (besides legal justice principle) which concrete in positive legal norms about performing, governing, investigating and post-investigating of a limited company by shares as a system. Then, the revising of positive legal norms about investigating of a limited company by shares consistently, which refers to the logics of legal rules. Keywords: the investigating, limited company by shares, normative evaluation, legal inconsistency