Primary Source Of Law Research Articles

Custom as a Source of Russian Civil Law

In this paper, the author explores the historical significance and complexity of legal customs in the formation of legal systems. The paper analyzes the evolution of a custom from the primary sources of law in ancient societies to its modern status, where their role, although important, is subject to certain limitations, is analyzed.The paper highlights the understanding and application of the term «custom» in the context of modern civil legislation of the Russian Federation with an emphasis on the changes that occurred after the legislative reform of 2012. The study examines various fields of application of customs. Special attention is paid to the analysis of the role and place of international trade custom in civil law relations in the Russian Federation. Based on the opinions of experts and considering in detail the judicial practice of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation, the author concludes that international trade custom is a source of law, and it also falls under the concept of «custom» within the framework of Article 5 of the Civil Code of the Russian Federation. The study emphasizes the oral nature of a custom as a source of law, while not neglecting the importance of informal written forms such as Incoterms and UNIDROIT, as well as standard contracts Special attention is paid to the debatable topic of the relationship of customs with imperative and dispositive norms of legislation, as well as their place in the structure of the Civil Code of the Russian Federation. The author highlights the problem of insufficient legislative regulation of customs and calls for their further research and systematization as a critically important element of the legal system.

Features of Applying Judicial Precedent in the Ukrainian judicial system

The article explores the possibility of future application of judicial precedent in the Ukrainian judicial system and the necessity of normative consolidation of its status as a source of law. Additionally, it is necessary to determine the criteria according to which judicial acts will be classified as sources of law. It is important to consider that the legal force of judicial precedent cannot be equivalent to the legal force of legislation; however, it can play a supplementary role and significantly enhance the quality and effectiveness of justice delivery. It analyzes specific works of scholars on the issue of recognizing judicial precedent as a source of law in Ukraine and its application in modern judicial practice. It is argued that the main questions arising during the investigation of the potential application of judicial precedent in Ukraine as a legal phenomenon should be analyzed through comparative analysis with legal systems where precedent is the primary source of law. It is substantiated that comprehensive and thorough research on precedent as a source of law is necessary for further improvement of the judicial system in Ukraine, driven by several reasons. Firstly, the increasing scientific interest in atypical sources of law for our country is associated with the intensive processes of Ukraine's integration into the European and global communities, as well as military actions in the country. Secondly, at the present stage, there is a significant influence of political, geographical, historical, and other factors on the legal space. The third reason for conducting research on judicial precedent is that both precedent and judicial practice are exclusively applied and legally applicable institutions directly related to the practical activities of the judicial system. It is established that unlike judicial practice, a judicial precedent, which is created by individually adopted court decisions of higher judicial instances, is a type of legal provisions developed as a result of judicial practice and one of its forms aimed at overcoming gaps in legislative regulation.

Ideal Concept In The Implementation Of Legal Philosophy In The Perspective Of Sociological Jurisprudence In Indonesia

The philosophical thought of law in a new paradigm that identifies reason as the primary source of law, emphasizing rationality and humanism in the development of modern law. This emphasizes the inseparability of law from social life and the formation of legal values within communities, shaping norms that guide social behavior and reflect the essence of law. The discussion extends to studying indigenous communities, especially in Kalimantan, where customary law arises from experiential actions, recognized and regulated by the Indonesian constitution, acknowledging the existence of written and unwritten laws within the framework of customary law. The research method used is normative juridical with a conceptual approach based on these issues. The research findings indicate that the conception of legal philosophy studies related to Sociological Jurisprudence becomes important because it enables law to become an instrument that promotes social justice and equality, recognizing that law must reflect respected social values and be executed within society based on the thoughts of Hugo Grotius regarding justice, equality, and human rights, grounded in rationality and humanism, emphasizing the need to treat individuals with respect and consider the welfare of society. The implementation of Hugo Grotius's thought in Indonesia has made a significant contribution to a paradigm shift in legal construction, particularly related to Sociological Jurisprudence. Grotius emphasizes the importance of rational law that does not solely rely on dogma or religious beliefs. His views on justice based on reason and human rights as an integral part of natural law have shaped a modern legal perspective that prioritizes justice and equality. Grotius's thoughts are highly relevant, especially in efforts to build a fair legal system based on morality.

BINDING PRECEDENT AS A SOURCE OF LAW

The present work addresses the figure of judicial precedent, initially investigating whether it is a primary source of law. Its general objective is to identify whether, in fact, decisions taken in a given case, according to the current procedural system, can give rise to rights and obligations in the national order, and, specifically, to address the issue of the need to identify the effective reason for deciding (ratio ) of each judicial precedent itself, seeking a basic methodology that can prevent the practice of mere invocation of precedents and menus as if it were a legitimate precedent interpretation. The approach is justified based on the procedural shift established with the CPC of 2015, through legal and doctrinal research on the subject, to conclude by the binding and normative force of the precedents provided for in Brazilian legislation.

Legal Consequences of Franchisees Doing Default Against Franchisors and Legal Protection for Franchisors

The franchisor and franchisee bond is a reciprocal bond. Because basically the franchisor grants a license to use an IPR in using logos, trademarks, patents, industrial designs, technology, and secret recipes for franchisees. On the franchisee side, of course, they are obliged to provide reciprocity by preparing land, infrastructure and paying a royalty fee to the franchisor. The franchise agreement is subject to Book III of the Civil Code concerning engagement, the legal relationship between the franchisor and the franchisee is also bound by a franchise condition as referred to in the Minister of Trade Regulation Number 71 of 2019 concerning Franchise Operations. The research method used by the author in this study is a normative juridical method, where the approach taken is to use a statutory approach as an object of study to analyze statutory regulations which are the primary source of law in this writing.

TELAAH HUKUM OMNIBUS LAW DAN PERLINDUNGAN TENAGA KERJA INDONESIA (Perspektif Undang-Undang No: 11 Tahun 2020 Tentang Cipta Kerja)

Law Number 11 of 2020 concerning Job Creation, one of which regulates labor rights. Labor rights are the company's obligation to workers which must be protected by the State through law, therefore the state must be present to ensure that its citizens get their rights in working in order to meet the basic needs of citizens' lives so that the welfare of the Indonesian people can be achieved. This is in accordance with the 1945 Constitution, namely the state creates welfare and progress of the nation. The method in this study uses normative law, namely doctrinaire legal research methods or library research by analyzing the law as a primary source of law and literary literacy. Theproblem caused by the enactment of Law Number 11 of 2020 concerning Job Creation is the reduction of labor rights, such as there are several articles that are deleted and added that are considered impartial to workers, for example in article 79 of the Job Creation Law, it is stated that overtime is carried out 4 hours in 1 day and 18 hours a week. The extended overtime time from the provisions of the Manpower Law 32/2003 states that overtime work time can only be done at most 3 (three) hours in 1 (one) day and 14 (fourteen) hours in 1 (one) week. In addition, the calculation of wages changes according to the company's ability and worker productivity, so it has the potential to be unsuitable for wages received by workers, to the threat of female workers because they do not get a salary when on menstrual and maternity leave.

Exploring Cross-Jurisdictional Transfer of Digital Personal Data Protection Laws Using The Dignified Justice Theory

This study discusses the legal vacuum and conflicting norms of digital data protection of individual citizens who use digital platforms transmitted trans-jurisdictions from European member countries to the United States. It comparatively reviews European Court decisions, European Directives, and Data Protection Laws as primary sources of law. The theory of Dignified Justice navigates the examination. It found that laws governing digital data transmission from one jurisdiction to another could be transferred to fill gaps and harmonize Indonesian law with European law in this area. Although in principle, according to the theory of Dignified Justice, the law must only be contained in the embodiment of the national spirit (volkgeist), among others, in existing regulations, especially in Indonesia or in the Pancasila Legal System, but through transposition according to the Dignified Justice Perspective it has been found that although there are differences in the formulation regarding legal norms protecting private digital data created to protect private digital data sent across jurisdictions, Indonesia also has substantive legal norms that are similar to the same law regime in Europe.

The Position of Traditional Law as a Source of Law in the Civil Law System in Indonesia

Indonesian law essentially comes from four sources of law, namely customary law, Islamic law, ex-colonial law and ratified international treaties. But what makes it sad is that from these four sources of law, customary law is left behind or forgotten, it looks inferior compared to other laws. In scientific forums it is only used as research material and academic studies and is narrated rhetorically. Against this background, the problem studied in this research is how the position of customary law in the national legal system with a civil law pattern in Indonesia is. The research method used is normative juridical sourced from primary, secondary and tertiary legal materials. The results show that traces of customary law are scattered in legislation, as legal principles in positive law in Indonesia and also in jurisprudence. Research findings that customary law fulfills two requirements of reality and ideals as the primary source of law in Indonesian legislation.

Sanksi Pidana terhadap Pelaku Tindak Pidana Korupsi Dana Bantuan Sosial

The amendment of Law Number 31 of 1999 to Law Number 20 of 2001 concerning the Eradication of Criminal Acts of Corruption is currently not in accordance with the development of lawsuits in the eyes of the public. Therefore, this research aims to analyse the legal arrangements for cases of corruption in social assistance funds and to examine the application of sanctions to perpetrators of corruption in social assistance funds. In this review, this research uses a normative type of research, using a statutory approach that investigates all legal aspects that arise. Primary law sources come from laws and regulations related to cases, while secondary law comes from legal books and journals that are correlated with issues in research. Data collection techniques by reading, recording, quoting, summarizing, and reviewing information and explanations collected from both legislation and literature. The results of the research reveal that in the legal guidelines Number 31 of 1999 amendments to Law Number 20 of 2001 concerning the Eradication of Criminal Acts of Corruption have not explicitly regulated violations of cases of corruption in social assistance funds, but perpetrators of violations of social assistance corruption can be sentenced to death on the grounds that the suspect of corruption in social assistance funds made a mistake by taking funds for social assistance for personal or group interests so as to fulfil the elements contained in Article 2 paragraph (2) of Law 31 of 1999 as amended by Law Number 20 of 2001 concerning Eradication of Criminal Acts of Corruption.

PERLINDUNGAN NASABAH EKONOMI SYARIAH MELALUI TRANSAKSI GADAI DALAM PERSPEKTIF FIQH MUAMALAH

Rahn (pawning) is one of the sharia economic transactions that is currently increasing in development in Indonesia. The need for funds to meet the shortcomings in everyday life makes rahn (pawn) an alternative to getting fast money loans to sharia pawnshops by pledging valuable goods as a condition of the contract (contract). In this study, using normative research with a conceptual approach and analysis approach. Primary sources of law used in this study refer to journals, proceedings, scientific papers relevant to Islamic economic law (Fiqh Muamalah). Meanwhile, secondary sources of law refer to books related to fiqh muamalah. The urgency of customer protection according to fiqh muamalah, in rahn transactions, of course, it depends on the contents of the agreement clause which is mutually agreed upon by prioritizing the principle of goodwill and the principle of justice so that both debtors and creditors have equality and equality to fulfill their rights and obligations according to the agreed agreement to avoid things that can break the contract.

Badania kliniczne wyrobów medycznych wykorzystujących inteligentne algorytmy – wstęp do dyskusji

The authors of the paper carry out a preliminary assessment of the new regulation on clinical trials of medical devices in the context of software based on intelligent algorithms (so-called AI systems). The primary source of law here is the EU Medical Device Regulation (MDR). The study highlights the need to take into account the regulations on artificial intelligence systems when conducting clinical trials. It is justified by their close relationship with the EU provisions on medical devices. The main difficulty in making a legal and ethical assessment of new solutions used in medical devices is the application of various, sometimes divergent, regulations in the field of new technologies and medical law. The study contains preliminary, necessarily balanced and careful, bearing in mind the need to protect patients - research participants (and other people), conclusions on the application of the above provisions in the conduct of clinical trials.

Pelindungan Hak Pilih Penyandang Disabilitas Mental dalam Pendekatan Rangkaian Proses Pasca Putusan Mahkamah Konstitusi Nomor 135/PUU-VIII/2015

The Constitutional Court Decision Number 135 / PUU-XIII / 2015 stated that the requirement for "not being mentally / memory disturbed" to be registered as a voter in Law Number 8 of 2015 is unconstitutional. The decision opens a new perspective on the protection of suffrage for persons with mental disabilities, and acknowledges that mental / memory impairment conditions are not the same between one person and another. The decision is in accordance with the development of thoughts on the legal capacity of persons with disabilities using a continuum approach, which recognizing that everyone is a legal subject, but practically it is necessary to look at the person's ability to exercise their rights, especially in decision making. The Constitutional Court decision has been applied in various regulations related to elections, which cannot be separated from the efforts of disabled people organizations to implement it. However, the changes are still at the administrative level, have not resulted in a change in perspective on the recognition of the legal capacity of persons with mental disabilities. In practice, there are still cases of persons with mental disabilities who were not registered as voters so that they are forced to be unable to exercise their voting rights. Based on this explanation, it is important to analyze how the legal capacity approach for persons with mental disabilities is used in the Constitutional Court decisions Number 135 / PUU-XIII / 2015, and how this approach should be applied to ensure the protection of the suffrage rights of persons with disabilities. This legal research was conducted using a qualitative approach, using primary sources of law in the form of statutory regulations and other forms of policy, as well as secondary sources of law in the form of literature and other valid and relevant information. This study presents a discussion of the suffrage rights of persons with mental disabilities using a continuum approach that has not been discussed in previous studies, so that it is expected to be able to sharpen the implementation.

Re-Examining the Publicity, Advertising and Marketing of Legal Profession in Malaysia

The legal practitioners in Malaysia are restricted from publicising, advertising and marketing themselves on the grounds of fiduciary relationship with clients, the duty to serve the public and it is professionally undignified. Despite the advancement of the Information, Communication and Technology, lawyers are restricted in utilising it for publicity, advertising and marketing. At the same time, the public is deprived of information to engage the best lawyers of their choice. Furthermore, while other countries such as European Union, United Kingdom, Singapore and Australia have moved forward, the Malaysian legal profession remains unchanged. This concept paper investigates the adequacy of the Legal Profession (Publicity) Rules 2001(“LPPR 2001”) in legalising publicity, advertising and marketing. This paper adopts a qualitative research methodology with doctrinal and comparative approaches. Firstly, this paper focuses on content analysis of statutes as the primary source of law. Secondly, content analysis on secondary sources of law including journal articles, and online sources. Thirdly, conducting a comparative study by analysing the primary and secondary sources of law in other jurisdictions. This paper explains that lawyers must be allowed to innovate into new methods in publicising, advertising and marketing themselves. Society will greatly benefit from this as they will be more informed and knowledgeable in engaging the service of lawyers of their choice. This paper ends by suggesting that there is a dire need to legalise the publicity, advertising and marketing of the legal profession in Malaysia. Thus, this research is significant to the development of the legal profession in Malaysia.

Penerapan Hukum International dalam Kasus Pelanggaran Hak Asasi Manusia Berat di Indonesia

Since the end of World War II, international law of human rights have a rapid and significant improvement so that it's become the primary source of law when state, international organization, and individual faces the human rights problems in all over the world. Efforts from the world community to improve the system of human rights protection achieve it's culmination point when the UN diplomatic conference agreed the Rome Statuate about International Criminal Court. Indonesia does not ratify that convention because Indonesia already has the law of human rights that is in the Law Number 26 Year 2000. This regulation applied to severlas cases of human rights violation in Indonesia such as Abilio Jose Osorio Soares case, Soedjarwo case, and G.M. Timbul Silaen. In those cases, the definition of "a systematic and widespread attack" becomes the main discussion. The Rome Statute applies the principle of "non-retroactive" while the Indonesian human rights law applies the principle of "retroactive".

CONSUMER CREDIT GRIEVANCE AND REDRESS MECHANISMS: THE MALAYSIA PERSPECTIVE

This study examines the redress mechanisms accessible to aggrieved consumers dealing with various consumer credit providers in Malaysia. The existing legal and institutional framework characterised by the piecemeal approach has led different groups of consumers to varying levels of access, which can be superior or inferior to one another. The study employs a doctrinal legal research methodology in analysing the two alternative dispute resolution bodies, namely, the Ombudsman for Financial Services, and the Tribunal for Consumer Claims. Primary sources of law, namely, the Consumer Protection Act 1999, the Financial Services Act 2013, the Financial Services (Financial Ombudsman Scheme) Regulation 2014, the Hire-Purchase Act 1967, the Moneylenders Act 1951, and the Pawnbrokers Act 1972, are meticulously analysed along with secondary sources of law that principally comprise journal articles. The study reveals disparities in terms of access to cheap and simple redress mechanisms by various categories of consumers who are aggrieved by the actions of credit providers. The position of bank consumers and those entering into credit sale is accounted for, as there are particular ADR bodies established under relevant legislations to hear their respective disputes. On the contrary, the position of those who wish to lodge claims against moneylenders, pawnbrokers or credit companies offering hire-purchase is problematic. Several recommendations are proposed to resolve this opacity inter alia by referring to the approach adopted by South Africa. This study is significant in ensuring fair access to inexpensive and hassle-free dispute resolutions for all financial consumers, irrespective of the nature of their consumer credit transactions.

The Formation of the Anglo-American Law and the Power of Judges

Dichotomous explanations of “Civil Law = Statutory Law” and “Common Law = Case Law” are widely used. Still, it is difficult for lawyers and citizens in Civil Law countries to understand case law accurately. How can a case, a resolution for a particular party to a dispute, be a law generally applied to everyone? Although there exists some legal part in the court decision, how can such judgment be called a “law”? When the court interprets statutory law, is it correct to call the court ruling “the law itself,” not the “authoritative interpretation” of the law? While there is a historical background behind the formation of case law, how do judges maintain the tradition of making laws? Is it right to describe the distinctive characteristic of Anglo-American law as “judge-made law” in the present day when the legislative body enacts numerous statutory laws? The article examines judges’ high authority and mighty power in the Common Law tradition to answer these questions. In the birth and development of Anglo-American law, judges exercised strong powers that were difficult to justify with legal theories. The author’s view is that one cannot accurately understand the Common Law system and case law without understanding this unique history and cultural traditions. From this perspective, the article first looks at how Common Law judges historically have acquired and maintained more substantial power than continental law judges. British and American judges can issue a writ of mandamus to direct officials in the executive branch to specific tasks, often order litigants to prohibit certain acts, and severely punish civil contempt with broad discretion. Lawyers in the Anglo-American legal tradition continue to believe that the law does not exist in abstract legislation but concrete court rulings. Therefore, even in modern times, when the legislature actively enacts statutes, Anglo-American lawyers never abandon the belief in “judge-made law.” Whether to recognize case law as a primary source of law, allowing judges to have mighty power, and maintaining the principle of separation of power thoroughly is not a matter of right or wrong, or better or worse. All legal systems should aim to protect the liberties and rights of the sovereign people and promote their happiness, so they should be evaluated as helpful in achieving this goal. It seems that many British and American lawyers and citizens believe that granting strong power to judges helps protect civil liberties and rights better.

INFLUENCE OF LABOR LAW DOCTRINE ON DEVELOPMENT OF LABOR LEGISLATION

The article is devoted to the analyses of influence of labor law doctrine on development of labor legislation. It is stated that labor law doctrine is primary source of law in following cases: (a) enshrined in legislation of legal norms; (b) resolving legal cases in practice, particularly in judicial bodies. It is emphasized that the labor law doctrine has been forming and developing during process of analyses of (a) international legal norms and current legislation of the country and foreign countries; (b) domestic court practice and practice of European Court of Human Rights; (c) real relationship in the sphere of labor, which comply with the conditions of social and economic development of the country; (d) obtained in the past knowledge about the nature and regularity of development labor relationship and closely related relationship. It was concluded that the labor law doctrine as sectoral legal doctrine is logical continuation of legal doctrine in the government simultaneously exactly at the level of sectoral doctrine of law, legal ideas of modernity, which has the abstract character in the sphere of socially useful work, acquire the qualitatively new expression with its maximum adaptivity to implementing particular type of relationship in the sphere of labor.

Restatement of the Law, Copyright: A Useful Resource for Practitioners and Courts or a Rashomon Exercise?

As the Ninth Circuit succinctly observed, when deciphering copyright law, “[w]e begin, as always, with the text of the statute.” An examination of any aspect of copyright law commences with the text of Title 17 of the United States Code (the “statute”), and then turns to case law for adjudications and interpretations of the relevant statutory text, or as the primary source of law in the gaps in the statute. Everything else is secondary and not, of course, a substitute for the law, whether it is legislative history, Copyright Office (and other government agency) studies, treatises, or other commentary.
 If copyright law consists predominantly of federal statute, how, if at all, will the American Law Institute (“ALI”) project to prepare a Restatement of the Law of Copyright (the “Restatement”) provide a useful or necessary resource for attorneys and the courts? In the face of the primacy of the enacted statutory text, why undertake a project to recast and rephrase the law? What, if any, use might it yield to practitioners and courts, and equally importantly, will consequential harms result?
 From the inception of the Restatement project, the creative community has collectively viewed the project with skepticism about its necessity and fears about its purpose and biases, and the resultant impact on the livelihoods of creators. This Response focuses on the practical uses, if any, of the Restatement for attorneys and courts grappling with copyright issues. The Response also examines, from a practitioner’s point of view, the Restatement’s potential to harm the ecosystem of the copyright creative community, and the likelihood that the harm will outweigh any value the Restatement might bring to clarifying the law.

The case guidance system in China: a practical guide to intellectual property cases

According to the country’s Constitution, the People’s Republic of China features a ‘socialist legal system’ in which statutory law, rather than case law, is the primary source of law. However, that does not reduce the value of the attention China has directed to establishing the case guidance system (CGS). Although the CGS is not used according to case law, it provides a useful observation window. The CGS is intricate and contains multiple subsets of example cases, which are selected by various bodies and announced in various styles. These subsets often bear similar names (eg guiding cases, model cases and referential cases), yet they may produce different outcomes. The CGS is not a plain collection of cases per se. Each subset of the CGS is often accompanied by the issuing bodies’ summaries and comments on the cases, which highlight specific guiding points thereof. This article provides, from a practical perspective, a layered introduction to the main court-issued CGS example cases that can be easily accessed online, with a specific focus on intellectual property cases. In 2005, the Supreme People’s Court of China (SPC) issued the Second Five-Year Reform Outline for the People’s Courts (2004–2008),1 officially introducing the concepts of the case guidance system (CGS) and guiding cases (指导性案例, GCs) and designating their construction as crucial for China’s judicial reform. In 2014, an aim ‘to strengthen and regulate case guidance’ was promoted to become a policy of the Chinese Communist Party.2 The CGS’ main body features an overall ‘1 + x’ structure, such that the SPC’s GCs are at the top and all other types of example cases lie beneath.3 GCs have quasi-legal source status, whereas none of the remaining cases are sources of law.

The Role of Jurisprudence as Form of Legal Prescriptions: a Case Study of Notaries in Indonesia

As a primary source of law, jurisprudence is a reference in constituting legal prescriptions for notaries in their works as public officials. Due to strengthening jurisprudence in the Indonesian legal system, jurisprudence cannot be ignored by the notary officeholders. Therefore, the main issue is whether jurisprudences have a role in constituting legal prescriptions for notaries in their works as public officials or not. This study was designed using a qualitative approach. Data analysis was conducted in a deductive-qualitative approach with a writing model carried out by "writing in contexts. The results showed that state law (laws) is the primary legal basis for doing authentic deeds by notaries. The implementation of the law must take precedence to achieve the goal of legal certainty in doing authentic deeds. As a result of strengthening the role of jurisprudence in Indonesia, notaries should also attend to the existence of jurisprudence. The purpose of enforcing jurisprudence by the notary is as an effort to (i) fill the legal avoidance, (ii) complete the applicable legal procedures, (iii) become a legal prescription for notaries, (iv) become a source of positive law, (v) keep abreast of legal developments in society, (vi) serve as test material for notaries and (vii) get a new legal construction that replaces the old legal concept. In conclusion, jurisprudence is one of the sources of law which must also be considered and paid attention to by notaries.