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Wiethölter, Rudolf. "Proceduralization Of The Category Of Law+". German Law Journal 12, n.º 1 (1 de enero de 2011): 465–73. http://dx.doi.org/10.1017/s2071832200016941.
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Preliminary Remark: The observations below are to be understood more as a draft than as theses. They refer to and continue a series of earlier considerations, most recently in two papers: Social Science Models in Economic Law, in Contract and Organisation, 52-67 (T. Daintith/G. Teubner eds., 1986) and Materialization and Proceduralization in Modern Law, in Dilemmas of Law in the Welfare State 221-248 (G. Teubner ed. 1986); both papers are also to be found (in German) in the following documentation: G. Brüggemeier, Workshop zu Konzepten des postinterventionistischen Rechts, Materialien des Zentrums für Europäische Rechtspolitik, 2-24, 25-64 (Ch. Joerges eds., Heft 4, 1984).
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Owczaruk, Sławomir. "CONCLUSION OF A CIVIL LAW CONTRACT AS A PREMISE FOR THE MUNICIPALITY TO ACT AS A TAXABLE PERSON OF TAX ON GOODS AND SERVICES (VAT)". Roczniki Administracji i Prawa 1, n.º XX (30 de marzo de 2020): 151–66. http://dx.doi.org/10.5604/01.3001.0014.1432.
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The research goal undertaken in this article is to answer two questions. First, can a municipality’s legal tax status in the field of tax on goods and services (VAT) in each transaction always be determined precisely? Second, is the conclusion of a civil law contract by a Polish municipality a sine qua non condition for it to obtain VAT taxable status? Theses presented in the publication, and arguments clearly indicate that with the VAT system in force in the European Union, including Poland, it is not always possible to precisely define the status of a municipality as a taxpayer in a given transaction; and the conclusion of a civil law contract by a municipality is not always sufficient for it to obtain the status of a taxpayer in a given transaction. The research material used includes domestic and foreign substantive law, doctrine and practice, in which current case law of tax authorities, administrative courts and the CJEU plays a special role.
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Sukačić, Marko. "Dvojbena pravna narav kupnji na pokus". Zbornik Pravnog fakulteta Sveučilišta u Rijeci 40, n.º 3 (2020): 1207–27. http://dx.doi.org/10.30925/zpfsr.40.3.10.
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The paper deals with the sale on approval of horses and mules shown in D.19,5,20 pr.- 1 (Ulpianus libro 32 ad edictum) and the existing theories on the legal position of the parties in the source. The first part of the paper sets out principium of D.19,5,20, where Ulpian quotes Labeo, and his description of the sale on approval of horses, concluded between the seller and the acrobatic rider – desultor, with a detailed analysis of the interpretations of relevant romanists. The principium is analyzed with the reference to dominant theories: theses on the suspensive and/or resolutive condition pactum displicentiae, on the innominate contract, and on pre-contractual acts. This is followed by an analysis of Ulpian’s sequel in the first paragraph of D.19,5,20 with a quotation of Mela, where he describes the sale on approval of mules, which are stolen during the test period, with Ulpian’s quote of Mela’s dilemma and of comparison with his own. Next part of the paper contains theories and interpretations of the legal nature of the relationship between the parties and the stage of contract. In conclusion, author presents his own position on the both presented situations, the legal nature of the relationship between the parties, and finally on the legal problem raised by Ulpian in the cited sources.
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Straumann, Benjamin. "Natural Rights and Roman Law in Hugo Grotius's Theses LVI, De iure praedae and Defensio capitis quinti maris liberi". Grotiana 26, n.º 1 (2007): 341–65. http://dx.doi.org/10.1163/187607508x366454.
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AbstractRoman property law and Roman contract law as well as the property centered Roman ethics put forth by Cicero in several of his works were the traditions Grotius drew upon in developing his natural rights system. While both the medieval just war tradition and Grotius's immediate political context deserve scholarly attention and constitute important influences on Grotius's natural law tenets, it is a Roman tradition of subjective legal remedies and of just war which lays claim to a foundational role with regard to his conception of subjective natural rights. Grotius made use of Roman law and Roman ethics in order to submit a normative case for a rights-based just war in the East Indies. His conception of a law of nature was originally conceived to apply a theory of compensatory justice to the high seas of Southeast Asia, envisaged as a natural state lacking political authority. Eventually, however, this argument was to reveal its anti-absolutist implications, and contributed—by virtue of its applicability to individuals, private entities and commonwealths alike—to the emergence of a rights-based constitutionalism. This article discusses Grotius's early treatise De iure praedae commentarius (1604-1606) and its offshoot Mare liberum, which already contained an inchoate version of subjective natural rights, as well as the elaborate natural rights doctrine which can be found in Grotius's early Theses LVI and in the Defensio capitis quinti maris liberi, a defense of the fifth chapter of Mare liberum, written around 1615 and directed against the Scottish jurist William Welwod's attack on Mare liberum.
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Zieliński, Maciej Jakub. "Kontrowersje wokół wykonywania pracy na rzecz własnego pracodawcy w rozumieniu art. 8 ust. 2a ustawy o systemie ubezpieczeń społecznych a zgodność tego przepisu z Konstytucją RP". Przegląd Prawa i Administracji 113 (12 de septiembre de 2018): 169–85. http://dx.doi.org/10.19195/0137-1134.113.12.
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ON CONTROVERSIES OVER INTERPRETATION OF THE PHRASE “PERFORMING WORK FOR THE BENEFIT OF ONE’S EMPLOYER” WITHIN THE MEANING OF ARTICLE 8 SECTION 2A OF THE SOCIAL INSURANCE SYSTEM ACT AND CONSTITUTIONALITY OF THAT PROVISIONThe article discusses controversies over interpretation of the phrase “performing work for the benefi t of one’s own employer” within the meaning of Article 8 section 2a of the Social Insurance System Act. The author criticizes interpretation of this phrase based solely on abstract theses formulated in individual judicial decisions, especially the ones of the Supreme Court. When detached from facts on which they were based, they can lead to unreasonable interpretation of the provision in question. The phrase “for the benefi t of one’s own employer”, should be construed through the prism of a relation that takes place in a typical employment relationship. In the three-subject configuration, when services are provided to the employer and the role of the third party is reduced to placement of workers which makes them similar, in terms of scope of their business, to temporary work agencies, this results in recognition that under service contracts concluded with those workers work is provided for their employer. It is quite diff erent for the situation where the third party is obliged to provide employer with a particular product, which is produced in the course of their business. Then, the key factor should rely on establishing whether the party in question bears organizational, technical and production risks related to manufactured products. Furthermore, considerations contained herein lead to the conclusion that the normative content of Article 8 section 2a of the Social Security Act settled in the Supreme Court’s case-law is incompatible with the principle of citizens’ trust in the state and its law. Article 8 section 2a of the Social Security Act itself, at least when it comes to performing work for one’s own employer within a civil-law contract concluded with a third party, is incompatible with Articles 217 and 64 section 3 of the Constitution of the Republic of Poland. Thus, opinions on how the law should stand were made herein.
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Richardson, Megan. "Contract law and distributive justice revisited". Legal Studies 10, n.º 3 (diciembre de 1990): 258–70. http://dx.doi.org/10.1111/j.1748-121x.1990.tb00036.x.
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This article is a response to a series of articles on contract law and distributive justice. In the first article, published in the Yale Law Journal, Professor A. T. Kronman put forward the thesis that the law of contract is necessarily concerned with distributive justice – that is, with the ‘fair division of wealth among the members of society’. In the second article, published in the Oxford Journal of Legal Studies, W. N. R. Lucy rejected that thesis and argued that limits on contracting are based on freedom rather than distributive justice. In this article I argue that contract law is and should be concerned both with freedom and with the substantive fairness of the distribution effected between the parties.
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Nikodym, Lukáš, Tomáš Nikodym y Tereza Pušová. "The Mistaken Doctrine of Common Law: A Critique". DANUBE: Law and Economics Review 7, n.º 3 (1 de septiembre de 2016): 173–81. http://dx.doi.org/10.1515/danb-2016-0011.
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Abstract The study deals with Huerta de Soto’s thesis about the “mistaken doctrine of common law”, which is based on the equalization of depositum irregulare and mutuum contracts. He concluded that equalization of these contracts resulted in the creation of business cycles. According to this study, Huerta de Soto made a mistake when considering contracts inspired by the continental law based on Roman law. The study shows that mutuum was even in Roman law an ancient contract that was not codified, and that Huerta de Soto’s interpretation of this contract in the Anglo-American legal system is based more on civil law, not on common law as he stated in his work. Finally, the problem of common law did not lie in the equalization of the mentioned contracts, but rather in the absence of depositum irregulare contracts applied to monetary questions.
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Halpin, Andrew. "Law, Autonomy, and Reason". Canadian Journal of Law & Jurisprudence 13, n.º 1 (enero de 2000): 75–102. http://dx.doi.org/10.1017/s0841820900002319.
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Joseph Raz’s recent discussion of law’s autonomy and public practical reasons, in response to an essay by Gerald Postema, provides further illumination of Raz’s own view of the nature of law; it forcefully challenges Postema’s purported identification of the defining task of law; and it clarifies the relationships between a number of strands, or theses, that enter the debate over an appropriate theoretical model for law. It is not necessary to locate this discussion within the more general setting of the conflict between Natural Law and Positivism—nor is it in any case clear that that sharp contrast is sustainable. Within the traditionally accentuated divide between Natural Law and Positivism, to talk of the autonomy of law would be taken as a simple positivist proclamation against the subjugation of law to moral standards. What emerges from Raz’s article is a subtle interplay between different characteristics and expressions of the law, which is capable of entertaining moral influence and social objective whilst retaining clear theses that seek to capture the distinctively legal nature of the phenomenon under investigation.In Raz’s recent article, the distinctive nature of law is still linked to an idea of autonomy expounded in terms of the sources thesis and the pre-emption thesis. The former identifies legal materials with legal sources free from the constraints of a further evaluative check, and the latter provides legal reasons to act for those subject to the law free from the consideration of further extra-legal factors. The greater sophistication of this concept of autonomy rests on the allowance Raz gives to the impact of moral factors and issues of social cooperation on legal reasoning, and his acknowledgment that legal reasoning itself is not autonomous.
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Zenin, S. S., D. L. Kuteynikov, O. A. Izhaev y I. M. Yapryntsev. "Law Making in the Conditions of Algorithmization of Law". Lex Russica, n.º 7 (23 de julio de 2020): 97–104. http://dx.doi.org/10.17803/1729-5920.2020.164.7.097-104.
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The paper is devoted to the study of law and computer algorithms as tools regulating social and technical processes. The purpose of this work is to study the possibilities of using computer code to regulate public relations, as well as the impact of this process on traditional legislative procedures.The paper puts forward the thesis that computer code regulating technical processes can be used to a certain extent in the legal sphere of activity. To use computer code in law making, it is necessary to define the scope of legal regulation, develop an appropriate programming language and adopt a system of internal and external code audit measures that will ensure transparency, legality of the code and, as a result, public confidence in the adopted normative legal acts.One example is smart contracts used in certain areas. The authors have studied various approaches to the definition of the term "smart contract" and formulated an integrative definition of this concept. When using a smart contract in the legal sphere, this term should be understood as a legally binding contract drawn up in the form of computer code and supported by appropriate legal remedies.In this paper, the authors investigate the possible consequences of using computer code in law making and propose a number of additional measures (requirements) to the procedure for adopting regulatory legal acts. The authors summarize that law is to a certain extent an algorithm, which means that the same methods can be used to regulate public relations that are used in the technical sphere to fix the sequence of various operations.
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Wójtowicz, Ewa. "Law applicable to Distribution Contracts and Contracts of Sale – Relationship between Framework Agreement and Application Contracts". European Review of Contract Law 14, n.º 2 (25 de junio de 2018): 138–56. http://dx.doi.org/10.1515/ercl-2018-1008.
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Abstract Distribution networks are widely used in the international trade as a tool for bringing another party’s products on to the market. However, in international business relations it may be difficult to establish the governing law for distribution agreements and contracts of sale. This article analyses the rules for determining the law applicable to distribution agreements and determines the impact of these rules and the law applicable to a distribution agreement on the applicable law for the sales contracts formed under the agreement. The thesis of the article is that the specific nature of distribution agreements manifesting itself in a bond between distributorship (as a framework agreement) and contracts of sale (as the application contracts) has implications for the determination of the applicable law for the sales contracts.
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Kamali, Mohammad Hashim. "Islamic Commercial Law". American Journal of Islam and Society 13, n.º 2 (1 de julio de 1996): 197–212. http://dx.doi.org/10.35632/ajis.v13i2.2330.
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Introductory RemarksThe Islamic law of transactions (mu'amalat) has often been singled outas the most important area of contemporary research in Islamic theses, somuch so that, according to some observers, its priority is even higher thanthat of research in applied sciences and medicine. This status is due to thecritical importance of commercial transactions in the wealth generation andproductivity prospects of contemporary Muslim countries. New researchon issues of conventional fiqh al mu'amalat is essential for the viability andsuccess of economic development programs in Muslim countries. In recentdecades, research interest in fiqh al mu'amalat has been shifting increasinglyto specific themes and development of new operative formulas tostimulate profitable business in the marketplace. Evidently, futures tradingis one such theme where original ijtihad is required to enhance theprospects of economic success, especially in farming and agro-based industriesin developing Muslim countries.The futures market is where contracts for future sale and purchase canbe concluded for standardized quantities and qualities of commodities, currencies,bonds, and stocks. Ever since the large-scale inception of futuresmarkets in the early 1970s, new products and trading formulas in varioustrade sectors involving commodities, options, financial futures, and stockindex futures, among others, have increased so much that futures contractscurrently are available in over eighty commodities, ranging from foodgrains, oil and oil seeds, sugar, coffee, livestock, eggs, orange juice, cotton,rubber, precious metals, and currencies. In terms of volume, futures tradinghas far exceeded trading levels in conventional stocks and, currently, is thesingle most voluminous mode of commerce on the global scale ...
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Cuniberti, Gilles y Manuel José José Segovia González. "Choice of Law in Latin American Arbitration: Some Empirical Evidence and Reflections on the Latin American Market for Contracts". THEMIS Revista de Derecho, n.º 77 (21 de diciembre de 2020): 35–57. http://dx.doi.org/10.18800/themis.202001.002.
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The aim of this Article is to assess the preferences of parties to Latin American international business transactions when they choose the law governing their contracts. For that purpose, the authors have conducted an empirical analysis of data that they were able to gather from arbitral institutions active in Latin America, with a focus on years 2011 and 2012. Furthermore they offer some reflections on the results and elaborate on whether they can be explained by the territorial approach of choice of law in Latin America, the importance of the United States as a trading partner for Latin American countries and the extent to which Anglo-American lawyers are present on Latin American markets.
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Herrera Blanco, Rocío. "La nueva perspectiva de la tutela del error en el moderno derecho de los contratos". Revista de Derecho de la UNED (RDUNED), n.º 14 (1 de enero de 2014): 863. http://dx.doi.org/10.5944/rduned.14.2014.13310.
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Premio de artículos jurídicos «GARCÍA GOYENA» (Curso 2013-2014). Primer accésit Todos los ordenamientos jurídicos europeos prevén normas relativas a la ineficacia de los contratos por vicios del consentimiento, sin embargo, existen entre ellos diferencias bastante significativas, especialmente cuando se comparan el Common Law y los derechos continentales. El presente estudio comparado parte del tratamiento de esta cuestión en la regulación española y se centra en las propuestas que el moderno Derecho de la contratación proporciona en materia de vicios del consentimiento, con particular atención a la figura del error, así como en el Derecho anglosajón, por su eventual influencia en la regulación de estos instrumentos. De manera muy amplia, podríamos decir que el Common Law enfatiza la seguridad de las transacciones, mientras que los sistemas del Civil Law, quizás todavía marcados por las huellas de las llamadas teorías voluntaristas, son más transigentes en permitir la ineficacia de los contratos por defectos del consentimiento. Partiendo de esta premisa, intentaremos evidenciar que las soluciones brindadas por el Derecho anglosajón y los diferentes instrumentos de unificación para la determinación de los efectos jurídicos del error son muy similares. Asimismo, en este trabajo se defiende la tesis de la obsolescencia del Código Civil español en esta materia, y la consecuente necesidad de adaptación del mismo a la actual realidad social, a través de un propósito de homogeneización del Derecho contractual europeo. Para ello, igualmente estudiaremos la Propuesta de modernización del Código civil en materia de obligaciones y contratos, cuya regulación del error, en particular, merece ser objeto de estudio y confrontación de ideas.The legal systems of all european countries provide rules regarding the inefficacy of contracts due to defects of consent, however, there are very significant differences between them, with the deepest differences when Common law and continental systems are contrasted. The present comparative study focuses on the proposals that the modern contract law (PECL, Unidroit Principles, DCFR, CESL) provides with regard to defects of consent and, particularly, to the doctrine of mistake, as well as the Common law for its eventual influence on the regulation of these projects. Very generally, we could say that Common Law emphasizes the security of transactions, while Civil law systems, perhaps still under the impact of the eroded voluntarist theories, are more generous in allowing the inefficacy of contracts due to defects consent. Given these premises, we will try to evidence that the solutions provided by the Common law and the different unifying instruments in order to determinate the legal effect of the defects of consent are very similar. Furthermore, this survey defends the thesis of obsolescence of the spanish Civil Code respecting defects of consent, and the ensuing need for adapting it to the current social reality through a purpose of homogenization of european contract law. Due to this fact, we will also study the Proposal for the modernization of the Civil Code on obligations and contracts, whose regulation of defects of consent, particularly, diserves to be analyzed.
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Charlson, Jennifer, Robert Baldwin y Jamie Harrison. "Early perceptions of allowing adjudication of oral contracts". International Journal of Law in the Built Environment 6, n.º 3 (7 de octubre de 2014): 233–49. http://dx.doi.org/10.1108/ijlbe-02-2013-0004.
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Purpose – The purpose of this paper is to consider the implications of the admission of oral contracts to statutory adjudication proceedings. A major criticism of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA 1996”) was that Section 107 required contracts to be “in writing” for the parties to be able to use statutory adjudication. In response, the Local Democracy, Economic Development and Construction Act 2009 repealed Section 107 of the HGCRA 1996. This paper considers the implications of the admission of oral contracts to statutory adjudication proceedings, whereby adjudicators’ may now have to determine the exact nature of oral agreements. The critical literature review has highlighted that there is a perceived risk that, by allowing oral contracts to be decided through adjudication, there could be an increased risk of injustice (as the adjudicator may have to decide oral testimony about contract formation). Adjudicators may now have to determine the exact nature of oral agreements. The critical literature review has highlighted that there is a perceived risk that by allowing oral contracts to be decided through adjudication there could be an increased risk of injustice (as the adjudicator may have to decide oral testimony about contract formation). Design/methodology/approach – The questionnaire responses of 38 construction industry professionals were analysed by identifying facts and salient themes. The research aims to identify to what extent the changes have widened the scope for entering into adjudication proceedings and whether there is an increased risk of injustice due to the short timescales involved. Findings – There was significant agreement that parties to an oral agreement have an increased risk of injustice through wrong interpretation of the terms and significant disagreement that allowing oral contracts to be referred to adjudication will encourage the use of oral agreements. In addition, construction industry professionals were interviewed in the Midlands, UK, to obtain their opinions, views and perceptions of the admission of oral contracts to statutory adjudication. Originality/value – The research is anticipated to be of particular benefit to parties considering referring an oral contract to adjudication.
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Lyall, Andrew. "Traditional Contracts in German East Africa: The Transition from Pre-Capitalist Forms". Journal of African Law 30, n.º 2 (1986): 91–129. http://dx.doi.org/10.1017/s0021855300006513.
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The material which forms the subject matter of this article constituted a chapter of a PhD thesis presented to London University in 1980. The thesis was based largely on the answers to Kohler's questionnaire which was distributed by the German colonial authorities throughout what was then German East Africa in 1909. A recent article in theJournal of African Lawdescribes these questionnaires in detail. Bibliographical references in the following text to the answers to the questionnaires follow the numbers assigned to them by Ankermann (1929) and used in the list in Redmayne and Rogers' article. Some answers were published at the time and these are referred to in the same way as normal bibliographical entries Some use has also been made of Post's earlier questionnaire which, together with the answers, was published under the editorship of Steinmetz (1903). Post's questionnaire was written in 1895 and distributed throughout the German colonies. The thesis dealt with land tenure and contract and so covered the field of the answers in the questionnaires dealing with those topics. It also set out a typology of African societies at the time the questionnaires were distributed, based on what could be discovered of their economic and social relations. As it turned out this typology proved rather more useful in establishing connections between economic relations and forms of land tenure than it was in establishing connections with such relations and contractual liability.
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MARKALOVA, N. G. "PROBLEMS RELATED TO THE CONTRACT OF CARRIAGE OF GOODS BY SEA". Civil Law Review 20, n.º 6 (20 de febrero de 2021): 18–29. http://dx.doi.org/10.24031/1992-2043-2020-20-6-18-29.
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This article is dedicated to the memory of Doctor of Law, professor Makovskiy A.L. under whose guidance the author prepared her thesis for Ph.D in Law. The author recollects years of work in the Division of international private, Soviet and foreign maritime law of the institute “Soyuzmorniiproekt”, which was governed by A.L. Makovskiy and outlines the achievements of Alexander Lvovich in the area of maritime law. The article addresses issues regarding the notion of a contract of carriage of cargo by sea, which up to the present moment give rise to discussions in legal community. Distinctive features of two types of contracts of carriage of cargo by sea are pointed out: charter contract made as a general rule in case of tramping and contract of carriage of cargo by sea in line traffic under a bill of lading. The author distinguishes legal relations in case of carriage of cargo by sea from legal relations in case of freight of a sea vessel demonstrating their different legal nature. Attention is paid to the fact that the contract of carriage of cargo by sea corresponds to Chapter 40 of the Civil Code of the Russian Federation “Carriage” and the contract of freight of a vessel for a certain time (time-charter) and a contract of freight of a vessel without a crew (bareboat charter) correspond to Chapter 34 of the Civil Code of the Russian Federation “Lease”. Based on judicial and arbitration practice the article shows the difficulties of perception of Article 787 of the Civil Code of the Russian Federation “The Contract of Freight” and points out the need for changing its contents.
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Tiverios, Nicholas. "A Uniform Hermeneutic Thesis". University of Queensland Law Journal 40, n.º 2 (29 de junio de 2021): 181–214. http://dx.doi.org/10.38127/uqlj.v40i2.5483.
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At a broad level of generality, the orthodox approach to interpreting contracts, trusts, wills, security documents, company constitutions and so forth is the same: a search for the objective meaning to be attributed to the author or authors of the instrument (the ‘uniform hermeneutic thesis’). This article has two primary objectives. The first is to respond to a common criticism of this uniform objective approach. The criticism is that, as each species of legal obligation is different, different rules of interpretation should apply when the given legal context changes. For example, why not ask the settlor of an inter vivos trust what she meant to say when an interpretational dispute arises? The second reason is to demonstrate that the explanations most commonly given in defence of an objective approach to interpretation, namely to promote legal certainty and economic efficiency, fail to capture the essential reason why the objective approach permeates the general law. The thesis put forward in this article is that an objective theory of interpretation is a justifiable aspect of private law because language (being a form of communication) does not operate unilaterally, but rather requires stable and dependable shared conventions. This argument is supported by the further claim that, where the author of a legal instrument utilises these publicly recognised conventions in order to affect her or his legal relations with others, she or he ought to be bound by those conventions. One cannot have the benefit of ‘conventions for me but not for thee’.
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Nasution, Chairuni. "Overview of Indonesian Law in the Purchase Transaction of Home Ownership Credit (KPR)". International Journal of Research and Review 8, n.º 5 (21 de mayo de 2021): 286–91. http://dx.doi.org/10.52403/ijrr.20210536.
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Home is a basic need that is very important for everyone. However, some people still do not own their own homes. The contributing factor is the high cash price of the house. Therefore, the government through the minister of public housing created a Home Ownership Credit (KPR) program. This KPR program is aimed at low-income people, which is called subsidized KPR. the number of banks implementing the KPR purchase program. This thesis research concerns the KPR transaction system carried out by BTN Syariah North Sumatra and a review of Islamic law on the KPR transaction system at BTN Syariah North Sumatra. This type of research uses normative legal research with a conceptual approach to understanding the KPR BTN Syariah transaction system that uses Islamic principles. The results and discussion of this research are the KPR transaction system carried out by BTN Syariah using the murabahah and istishna sale and purchase contracts. A legal review in Indonesia of this sale and purchase agreement is with 3 approaches consisting of the review of the terms of sale and purchase, the legal terms of sale and purchase, and the terms of buying and selling credit. For the Istishna contract, BTN Syariah cannot use this contract because BTN Syariah is not a producer but a trader. In conclusion, the KPR transaction scheme carried out by BTN Syariah is not essentially a sale and purchase of murabahah or istishna, but of accounts payable / qardh. Keywords: Indonesian law, mortgage, legal relief.
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Adams, David M. "Skepticism and the Apologetics of Law". Canadian Journal of Law & Jurisprudence 3, n.º 1 (enero de 1990): 69–90. http://dx.doi.org/10.1017/s0841820900001053.
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Contemporary legal theory is increasingly marked by the clash between two opposing, basic approaches to law and legal doctrine. The first approach is skeptical: it seeks both to expose the conceptual and normative commitments of tort or contract or constitutional law, and to impeach them on the grounds that they comprise what are in fact incoherent and morally insupportable ideologies. By contrast, the second approach is explicitly apologetic: it aims to celebrate law by offering a reconstruction and justification of the basic features of constitutional or statutory or common law practice. The first approach is of course represented by the “deconstructionism” imported into law from literary and social theory by those scholars associated with the Critical Legal Studies (“CLS”) movement. At its most controversial, the work of these recent legal skeptics seeks to link traditional legal doctrine, and the modes of analysis and pedagogic methods peculiar to it, with a radical critique of political liberalism by showing that the doctrine and its methods serve to legitimate existing social inequalities, hierarchies, and forms of domination, while at the same time obscuring their own legitimating role. One important corollary of this general thesis is the emphasis upon what Roberto Unger has called “the contradictory and manipulable character of legal doctrine”, i.e., the effort, inspired by the familiar deconstructionist premise that texts lack any fixed or stable and coherently formulable meaning, to “deconstruct” the basic categories of (liberal) legal discourse with the aim of exposing tensions and inconsistencies inherent within them, and of depicting the responsiveness of this “patchwork quilt” to background social, political, and economic forces.
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Saumier, Geneviève. "Uniformity and Diversity in the Enforcement of Arbitration Clauses in Canada". THEMIS Revista de Derecho, n.º 77 (21 de diciembre de 2020): 111–21. http://dx.doi.org/10.18800/themis.202001.005.
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Arbitration is well established in Canada. All jurisdictions have implemented the 1958 New York Convention, the UNCITRAL Model Law on Arbitration and equivalent legislation for domestic arbitration. This generally supportive legal landscape for arbitration is often at odds with access to justice for consumers. As a result, several jurisdictions in Canada have adopted legislation to guarantee consumers’ access to local courts, including through class actions, notwithstanding the inclusion of arbitration clauses in their contracts. The constitutional division of powers in Canada entitles each province to adopt its own policy, leading to diversity across the country with regard to the enforceability of arbitration clauses in consumer contracts. In this paper, the author examines the tension between general support for arbitration and differentiated treatment of consumer arbitration in Canada. To that end, the author examines relevant legislation in several provinces (including Quebec and Ontario) as well as recent jurisprudence from the Supreme Court of Canada (Dell Computer (2007), Telus (2011) and Wellman (2019)). The 2020 decision from the Supreme Court of Canada in Uber may signal a new openness toward extending protection to other vulnerable contracting parties such as employees.
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MacMillan, Catharine. "ROGUES, SWINDLERS AND CHEATS: THE DEVELOPMENT OF MISTAKE OF IDENTITY IN ENGLISH CONTRACT LAW". Cambridge Law Journal 64, n.º 3 (noviembre de 2005): 711–44. http://dx.doi.org/10.1017/s0008197305007014.
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THERE are few more vexed areas of contract law than that of a mistake as to the identity of a contracting party. The case law is difficult to reconcile. Judges and jurists disagree as to the effect of a mistake of identity upon the formation of a contract. This disagreement extends beyond discordance as to the operative principles to the very existence of the doctrine. That the issues are of current concern can be seen in the recent decision in Shogun Finance v. Hudson. This article examines how and why such a situation arose through an examination of the historical development of the doctrine. The thesis of this article is that the meaning of the early cases is obscured when they are viewed solely from a contractual perspective. The participants in these cases were also concerned with issues of criminal law and tort law. As these concerns disappeared from the law the meaning of the early cases was obscured and the cases have ceased to make sense. The article concludes with two sets of observations: first, what can be concluded, as a matter of legal history, from the development of this doctrine; secondly, how the modern law of mistake as to identity should regard these early cases.
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Titov, Nikolay D. y Valeria A. Goncharova. "SERVICE TO TOMSK STATE UNIVERSITY AS A LIFE CREDO OF PROFESSOR I.V. FYODOROV". Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, n.º 39 (2021): 191–207. http://dx.doi.org/10.17223/22253513/39/15.
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3 February marks the 100th anniversary of I.V. Fyodorov's birth. He will remain in the memory of his students, colleagues, postgraduates and doctoral students as a kind, intelligent and great professional. The article "Service to Tomsk State University as a vital credo of Professor I.V. Fyodorov" is devoted to the main stages of life and scientific-pedagogical activity of Doctor of Law, Professor I.V. Fyodorov, who devoted more than forty years of his life to the service to Tomsk State University. A significant part of scientific and pedagogical activity of I.V. Fyodorov at TSU falls within the Soviet period of the Russian state. The university life period of I.V. Fyodorov began on October 01, 1958, when he was hired at TSU. The main period of scientific and pedagogical activity I.V. Fyodorov fell in the 60-80 years of the last century. In pedagogical activity I.V. Fyodorov professed a number of own criteria of teaching: there is nothing more practical than a good theory, knowledge of principles easily replaces ignorance of some facts, students should be taught the law, and not the laws. The main object of I.V. Fyodorov's scientific interests was the civil law contract and its variant, the commercial contract. He studied these contracts as early as in his candi-date's thesis, and then from 1965 he continued in his doctoral thesis and in numerous articles. The main scientific conclusion of his research lies in a capacious formula: The contractual regulation of economic relations is a method of influencing the economy of the USSR. The authors of the article are convinced that I.V. Fyodorov's works have not only scien-tific and historical value. Certain positions of I.V. Fyodorov on the most topical problems of civil law, the main ideas which were expressed by him in the Soviet period of work have not lost their relevance in the post-Soviet period, and some - in the present time as well. These are, for example, the ideas about the fundamental basis of civil law, the relationship between the contract and the obligation, and the importance of fault in contract law, including in busi-ness activity. In his scientific and pedagogical work, I.V. Fyodorov paid much attention to individual work with students. He supervised 20 postgraduate students and was academic adviser to 2 doctoral students. Besides his scientific and pedagogical work, I.V. Fyodorov also took an active part in educational and methodical work at the Department: he was the co-author and editor of different educational and methodical textbooks and practical works on the general part of the civil law. Until 1995, he read the special course Business Contract (50 hours), and since 1995 he led the special course "Contract Law of Russia". During different periods of his life I.V. Fyodorov fulfilled numerous public assignments: he was elected a member of the Tymsk District Committee of the All-Union Komsomol of the Tomsk region, was a member of the CPSU, was elected to various party bodies, was the Chairman of the Tomsk Regional Society "Znanie". I.V. Fyodorov was awarded a number of state medals, he was also marked with TSU badges.
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Omotayo, Temitope, Alireza Moghayedi, Bankole Awuzie y Saheed Ajayi. "Infrastructure Elements for Smart Campuses: A Bibliometric Analysis". Sustainability 13, n.º 14 (16 de julio de 2021): 7960. http://dx.doi.org/10.3390/su13147960.
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Sustainable development can be attained at a microlevel and having smart campuses around the world presents an opportunity to achieve city-wide smartness. In the process of attaining smartness on campuses, the elements requiring attention must be investigated. There are many publications on smart campuses, and this investigation used the bibliometric analysis method to identify such publications produced over the last decade. A matrix of 578 nodes and 3217 edges was developed from 285 publications on smart campus construction and procurement. Fifteen cluster themes were produced from the bibliometric analysis. The findings revealed that China contributed 48.4% of all published articles on the smart campus. The findings presented a framework from the cluster themes under the four broad infrastructure areas of building construction or repurposing, technology and IT network, continuous improvement, and smart learning and teaching management. The implications of the findings identified that IT project management, traditional procurement strategy, and standard forms of contracts such as the New Engineering Contract (NEC) and the Joint Contract Tribunal (JCT) are applicable in the procurement of smart cities.
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Brudner, Alan. "The Unity of Property Law". Canadian Journal of Law and Jurisprudence 4, n.º 01 (enero de 1991): 3–66. http://dx.doi.org/10.1017/s0841820900001260.
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This essay defends the thesis that the common law of property exhibits an internal unity worthy of moral respect. There are three distinct elements to this claim, each of which may be elucidated through a contrast with the position it opposes. First, the unity we seek in the law of property is an internal one. This means that we unabashedly seek property law’s own unity, regarding artificial constructions as a defect of interpretation rather than its normal product. We do not set out in advance the underlying ground for the possibility of faithful interpretations of legal practice; for that ground will emerge as the unifying theme of property law and so must be methodically drawn from the object rather than baldly asserted beforehand. Nevertheless, it is possible to indicate at the outset how an internalist understanding of property law will differ from interpretations that are constructionist, or that impose on the object a unity alien to it.
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Fayyad, Mahmoud. "Fundamental Breach of Contract in Terms of the UN Sales Convention and Emirates Law: A Comparative Legal Study". Arab Law Quarterly 33, n.º 2 (3 de abril de 2019): 109–51. http://dx.doi.org/10.1163/15730255-12332008.
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Abstract The UAE launched its National Vision 2021 in 2010, which ‘sets the key themes for the socio-economic development of the UAE’ and calls for ‘a shift to a diversified and knowledge-based economy’. It focuses on the UAE becoming the economic and commercial capital for more than two billion people by transitioning to a knowledge-based economy. The success of the vision requires the State to join the United National Convention of Trade in Goods, which is the most important convention in this field. Until now, the national lawmaker has refrained from joining the Convention, believing that the Convention prevails to the interests of the seller party. As fundamental breach is a momentous concept of the terms of the Convention, this article will attempt to draw similarities and distinctions between national law and the United Nations Convention for the International Sales of Goods (CISG) in terms of the principle of fundamental breach.
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Murayama, Masayuki. "Kawashima and the changing focus on Japanese legal consciousness: a selective history of the sociology of law in Japan". International Journal of Law in Context 9, n.º 4 (diciembre de 2013): 565–89. http://dx.doi.org/10.1017/s174455231300030x.
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AbstractKawashima's well-known arguments on Japanese legal consciousness represent characteristic concerns of Japanese socio-legal scholarship: comparison between Japan and the West on the one hand, and law and practice on the other. Such concerns originated much earlier, before World War II. Suehiro, the early founder, relied on Ehrlich's idea of living law to make law fit social reality. In contrast, Kawashima urged Japanese people to make modern law ‘our living law’. He also argued that Japanese consciousness was the main cause of the small volume of litigation. This thesis became a focus of empirical research by Japanese and foreign scholars. Kawashima played a significant role in establishing the sociology of law as a subject in law. In subsequent empirical studies, Kawashima's thesis has been critically assessed. Yet the sociology of law as an empirical science and the characteristic concerns his work represents are distinctive features of the sociology of law in Japan.
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Barnard-Naudé, J. "Bona fides and ubuntu – A response to Dale Hutchison". Acta Juridica 2021 (2021): 85–106. http://dx.doi.org/10.47348/acta/2021/a4.
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This paper is a response to Dale Hutchison’s recent arguments about the role of fairness in contract law after the Constitution. From the point of view of transformative constitutionalism, the paper argues that the fairness ‘debate’ in the South African law of contract should be approached as what it so patently is, namely, as evidence of a deep ideological conflict that has existed in our law of contract for a very long time, and that this debate now exists within the context of a larger debate about the appropriate transformative reach of the Constitution. The argument takes the form of two ‘dangerous supplements’ to Hutchison’s discourse. The first of these supplements contends that indeterminacy is a symptom of the common law itself, rather than a result of contract law’s contact with the Constitution. The second dangerous supplement suggests a responsible judicial engagement with bona fides and ubuntu, one that can exploit the strengths of both the common law and the Constitution and that understands good faith and ubuntu to be ‘inter-linking’ constitutional values that should be enlisted in unison or at least in resonance when it comes to the question of fairness in our contemporary law of contract. In conclusion, I offer a reading of Hutchison’s own politics of contract law and contend that his is an altruistic politics committed to the standard form. I contend that this politics of contract law is consistent with a transformative understanding of the post-apartheid legal order. ‘Law, like every other cultural institution, is a place where we tell one another stories about our relationships with ourselves, one another, and authority. In this, law is no different from the Boston Globe, the CBS evening news, Mother Jones, or a law school faculty meeting. When we tell one another stories, we use languages and themes that different pieces of the culture make available to us, and that limit the stories we can tell. Since our stories influence how we imagine, as well as how we describe, our relationships, our stories also limit who we can be’.
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Rivers, Julian. "The Secularisation of the British Constitution". Ecclesiastical Law Journal 14, n.º 3 (22 de agosto de 2012): 371–99. http://dx.doi.org/10.1017/s0956618x12000361.
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In recent years, the relationship between law and religion has been subject to increased scholarly interest. In part this is the result of new laws protecting religious liberty and non-discrimination, and it may be that overall levels of litigation have increased as well. In all this activity, there are signs that the relationship between law and religion is changing. While unable to address every matter of detail, this article seeks to identify the underlying themes and trends. It starts by suggesting that the constitutional settlement achieved by the end of the nineteenth century has often been overlooked, religion only appearing in the guise of inadequately theorised commitments to individual liberty and equality. The article then considers the role of multiculturalism in promoting recent legal changes. However, the new commitment to multiculturalism cannot explain a number of features of the law: the minimal impact of the Human Rights Act 1998, the uncertain effect of equality legislation, an apparent rise in litigation in established areas of law and religion, and some striking cases in which acts have been found to be unlawful in surprising ways. In contrast, the article proposes a new secularisation thesis. The law is coming to treat religions as merely recreational and trivial. This has the effect of reducing the significance of religion as a matter of conscience, as legal system and as a context for public service. As a way of managing the ever-deepening forms of religious diversity present within the United Kingdom, such a secularisation strategy is implausible.1
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Jorbenadze, Sergi. "Die Vertragsstrafe im georgischen Recht". osteuropa recht 65, n.º 4 (2019): 457–66. http://dx.doi.org/10.5771/0030-6444-2019-4-457.
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Contractual Penalties under Georgian Law With the development of contractual relations in Georgia, it has become more common for the parties of a contract to include conditions of a penalty in their agreement. Georgia, as a member of the continental law family, actively shares the European experience and executes the guidance of individual institutions. One proof of this fact is the inclusion of penalties in the Civil Code and its practical realization, which is characterized by interesting explanations in court. Penalty, as an additional means of securing a demand, has an accessory nature. It has predominantly a penalty (sanctioned) function that is completely independent of the damage inflicted. Thus, a penalty claim does not preclude a claim for damages. Unlike the legislation of some countries, the Civil Code of Georgia requires that the penalty must be expressed only in monetary form, which shall be written in the contract. There are two types of penalties: legal and contractual. In both cases, penalty request can be reached for breach of contractual obligation. Penalty, in Georgian Law can be expressed in different forms. In this respect, particularly selective is the so-called cumulative penalty, where the requirement to pay a fine together with the performance of the obligation is provided (preferably for a breach of the term). In contrast to the German Civil Code, the legislation does not know of Revocation in return for the forfeit money concept. One part of the thesis relates to this issue - it states that in spite of the absence of legal provisions, considering the principle of freedom of contract, its use is permitted in Georgian reality. The principal importance of the existence of these two institutions is mainly due to Article 420 of the Civil Code of Georgia: under that provision, the court may reduce the penalty to a reasonable amount, while it cannot reduce Revocation in return for forfeit money. Against the background of activating foreign (especially German) businesses and interest in Georgia, a number of agreements are concluded, whose part is from Georgia, or where the contract is based on Georgian law. In this regard, it is advisable that the contractor be more aware with regard to possible legal consequences in the case of future demand.
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Ginsburg, Tom. "From Contract to Status: A Comment on Nico Krisch’s The Decay of Consent". AJIL Unbound 108 (2014): 8–9. http://dx.doi.org/10.1017/s2398772300001768.
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In the mid-nineteenth century, the great anthropologist Henry Sumner Maine observed that legal systems tended to move over time from “status to contract” by which he meant that rights and duties were increasingly determined by consent rather than social or demographic factors. Maine’s thesis might have been applied to international law during the long era of high positivism, in which consent became the dominant principle after the Peace of Westphalia. Formal equality of states meant that formal treaties—”contract”—were the main mode of interaction. Even in the post-World War II era, consent played a major role, in part because the Security Council—the chief vehicle for legal exercise of “status”—was anemic. International organizations served as vehicles for the development of multilateral treaties of increasing scope and depth. Status and power were hidden rather than acknowledged elements of the system.
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Morwood, James. "Euripides’ Suppliant Women, Theseus and Athenocentrism". Mnemosyne 65, n.º 4-5 (2012): 552–64. http://dx.doi.org/10.1163/156852511x547947.
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Abstract In Euripides’ Suppliant Women, Theseus at first rejects Adrastos’ supplication to recover the bodies of the Argive dead. Later he changes his mind. This article discusses the initial failure of the supplication, both examining the failings in Adrastos’ appeal and suggesting that a strong case can be made for Theseus’ rejection: neither he nor Athens would have suffered from gods or from men had he stood by it. Why then did he have the change of heart that the play clearly approves? The article links his rejection with a narrow nationalism evinced in his response to the exogamous marriages Adrastos had contracted for his daughters. His attitude looks back to Perikles’ marriage law of 451 BC and reflects the chauvinism that it brought in its wake. Theseus must unlearn this limited mind-set and become a truly Panhellenic hero. The article traces how this in fact happens in the course of the play, above all through the developing relationship between Theseus and Adrastos. His jingoism and isolationism melt away, though in her ex machina appearance Athena undermines the great-heartedness that both kings have displayed. Despite that, the play ends affirmatively, endorsing the theme of the inadequacy of a narrow Athenocentrism.
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Beaton, James Daniel. "Finding Justice in Ancient Israelite Law: A Survey of the Legal System of the Israelites during the Post-Exodus, Pre-Exilic Period". Journal for the Study of the Old Testament 41, n.º 2 (diciembre de 2016): 139–58. http://dx.doi.org/10.1177/0309089216646523.
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The ancient Israelite tradition (for present purposes, spanning the period immediately post-exodus up until the exilic period) manifests itself in many of the prevailing theories of law and justice underlying the archetypal Western legal system. This article strives to proceed unencumbered by cultural-temporal bias to evaluate the recurring themes of structure, procedure, substance, injunction, sanction, and operation in ancient Israelite law, thereby framing that legal tradition as a cohesive whole which is notable for the parallels that can be drawn between it and the Western legal systems that we now consider ‘just’. More specifically, this article considers notions of democracy, social contract, freedom of speech, equality, rule of law, retroactive law, dissemination of law, civil and criminal procedure, development of law, natural law theory, social-welfare law (including the jubilee laws), lex talionis, and communal responsibility as a basis for punishment.
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Leshinsky, Rebecca. "Situating real estate law for the new outer-space economy". Journal of Property, Planning and Environmental Law 13, n.º 2 (3 de agosto de 2021): 152–64. http://dx.doi.org/10.1108/jppel-02-2021-0010.
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Purpose With current commercial space activities accelerating, the purpose of this paper is to contexualise enlivening the discipline of real estate law for outer space. Design/methodology/approach Drawing on essential topics in real estate law, contracts and insurance, this paper discusses these themes in their terrestrial and extra-terrestrial contexts. Findings Real estate law for the outer space environment carries many similarities to real estate law but also significant differences. At this early stage in human space exploration and travel, there is a need to deal more with goods/chattels (property assets); however, this will change as land – the Moon, asteroids, planets – are made available for mining and other activities. Given outer space activities carry high risk for spacecraft and humans, there are reciprocal lessons for real estate law and practice. Practical implications Real estate law for outer space is an area already in existence. However, as access to space develops further, particularly with inevitable human presence on the Moon and exploration to Mars, real estate law will also grow in importance and sophistication. Real estate law for outer space relies on contract and property law. These are levers for commercial activities, and a further array of complex law and governance – the Outer Space Treaties, international and national law, international custom, guidelines, codes and standards. Real estate law for space will require an interdisciplinary and global approach in an era where human needs are already reliant on goods and services derived from space, as well as in the quest for exploration beyond the earth and the moon itself. Originality/value The time is ripe for space law to be taken into nuanced areas, with real estate law being an important step. Entrenched into the combined real estate and outer space disciplinary context must be consideration of the environment (earth and beyond), sustainability, heritage protection issues, etc., as well as ensuring outer space has equitable opportunities for all nations and citizens.
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Alexy, Robert. "Kant’s Non-Positivistic Concept of Law". Kantian Review 24, n.º 4 (26 de noviembre de 2019): 497–512. http://dx.doi.org/10.1017/s1369415419000281.
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AbstractThe main thesis of this article is that Kant’s concept of law is a non-positivistic one, notwithstanding the fact that his legal philosophy includes very strong positivistic elements. My argument takes as its point of departure the distinction of three elements, around which the debate between positivism and non-positivism turns: first, authoritative issuance, second, social efficacy, and, third, moral correctness. All positivistic theories are confined to the first two elements. As soon as a necessary connection between these first two elements and the third element, moral correctness, is established, the picture changes fundamentally. Positivism becomes non-positivism. There exist two kinds of connections between law and morality: classifying and qualifying connections. This distinction stems from different sorts of effects that moral defects give rise to. A classifying connection leads to the loss of legal validity, whereas a qualifying connection leads only to legal defectiveness. In Kant’s theory of law both connections are found. The qualifying connection is conspicuous throughout Kant’s theory of law, whereas the classifying connection, by contrast, is rare and well hidden. This will suffice to consider Kant as a representative of inclusive non-positivism.
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Rutgers, Leonard Victor. "Roman Policy towards the Jews: Expulsions from the City of Rome during the First Century C.E." Classical Antiquity 13, n.º 1 (1 de abril de 1994): 56–74. http://dx.doi.org/10.2307/25011005.
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In the first century, Jews were expelled from Rome on various occasions. Ancient literary sources offer contradictory information on these expulsions. As a result, scholars have offered different reconstructions of what really happened. In contrast to earlier scholarship on the subject, this article seeks to place the expulsions of Jews from first-century Rome into the larger framework of Roman policy toward both Jews and other non-Roman peoples. It is argued that the decision to banish Jews from Rome resulted from pragmatic and not from specifically anti-Jewish considerations: Roman magistrates just wanted to maintain law and order. It is then suggested that the reasons underlying the decision to expel Jews from Rome were essentially the same as those triggering expulsions of other groups such as Isis worshipers, devotees of Bacchus, or astrologers. Such evidence serves to illustrate the two main theses of this article. First, it is argued that in late Republican and early Imperial times, Rome never developed a systematic "Jewish policy." During this period, Rome rather responded to situations when confronted with disputes over Jewish rights. This conclusion then serves to bolster the second thesis of this paper, namely that in the first century, Rome never pursued a consistent policy of tolerance (or intolerance) toward its Jewish subjects.
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Sakum, Sakum. "IMPLEMENTASI AKAD MURABAHAH PADA PRODUK PEMBIAYAAN MURABAHAH DI KOPERASI SIMPAN PINJAM DAN PEMBIAYAAN SYARIAH BAITUL MAAL WAT TAMWIL FAJAR CABANG BEKASI". Jurnal Ekonomi Syariah Pelita Bangsa 6, n.º 01 (10 de abril de 2021): 20–29. http://dx.doi.org/10.37366/jespb.v6i01.173.
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In the preparation of this thesis, researchers used qualitative research, the type of research used was library research and field research. Sources of data obtained through primary and secondary data sources, for data collection using two methods, namely: interviews and documentation, for data analysis techniques using 3 methods, namely data reduction, data presentation, and drawing conclusions. This study aims to determine the implementation or practice of the murabahah contract in murabahah financing products at Baitul Maal wat Tamwil Fajar Bekasi branch whether it is in accordance with Islamic law and Fatwa DSN MUI No. 04 / DSN-MUI / IV / 2000 About Murabaha. The result of this research is that in the practice of the murabahah contract at KSPPS BMT Fajar has implemented it according to the SOP and in accordance with Islamic law and fatwa DSN MUI No. 04 / DSN-MUI / IV / 2000 About Murabaha. Based on the results of the study, it can be concluded that the implementation of the murabahah contract on murabahah financing products at KSPPS BMT Fajar Bekasi branch is in accordance with Islamic law and Fatwa DSN MUI No. 04 / DSN-MUI / IV / 2000 About Murabaha. This is based on the results of the analysis of interviews with members who apply for murabahah financing.
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Padovan, Adriana Vincenca y Margita Selan Voglar. "Marina Operator Liability Insurance in Croatian and Slovenian Law and Practice". Transactions on Maritime Science 8, n.º 1 (20 de abril de 2019): 109–22. http://dx.doi.org/10.7225/toms.v08.n01.011.
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The paper deals with marina operator liability insurance (hereinafter: MOLI) in the context of Croatian and Slovenian insurance law and business practice. The authors analyse, discuss and compare the salient features of MOLI contracts, their standard terms and conditions, scope of coverage and exclusions in Croatian and Slovenian law. The paper describes the relevant business practice in the two Adriatic countries. The analysis is based on the comparative study of the relevant national legislation and private regulation, as well as on the data and documentation gathered by field research, consisting of written questionnaires and live interviews with the representatives of insurance companies and marina operators. Our thesis is that the legal framework in the two observed jurisdictions, as well as the insurers’ private regulation in Croatia and Slovenia are very similar. The aim is to establish the common features of MOLI contracts and of the related practices of marina operators and their insurers in the respective countries and explain the background that has led to the formation of a MOLI product specific for the eastern Adriatic marina industry. Suggestions are given for the improvement of the relevant business practices and administrative requirements regarding the minimum insurance standards imposed on marina operators by the concessioning process.
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Plakolli-Kasumi, Luljeta. "Some preliminary findings regarding Kosovo legislation in the field of consumer protection with special emphasis in arbitration clauses in consumers contracts". Zbornik radova Pravnog fakulteta u Splitu 57, n.º 3 (12 de agosto de 2020): 875–85. http://dx.doi.org/10.31141/zrpfs.2020.57.137.875.
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Although the Kosovo Law on Consumer Protection has been harmonized with the EU Directive on Unfair Contract Terms, several inconsistencies are still prevalent in other pieces of legislation, which in turn diminish the effective protection of consumers in line with the aim of the said Directive. The present paper aims at introducing some preliminary findings of the author’s doctoral thesis which can serve as a basis for further improvement of the existing legislation in the field of consumer protection. Full harmonization of the consumer protection legislation with the Unfair Terms Directive entails not only the verbatim transposition of the said Directive into one piece of legislation but an alignment of the entire legislative framework to this end, as well as the development of the court practice in line with the CJEU case-law.
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Hanif Hakim, Kevin y Akhmad Khisni. "Effects The Constitutional Court Decision Allowing Marriage Agreement After Marriage (Constitutional Court Decision No. 69 / PUU-XIII / 2015)". Jurnal Akta 6, n.º 2 (16 de agosto de 2019): 271. http://dx.doi.org/10.30659/akta.v6i2.5020.
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At first the marriage law stipulated in the Civil Law Act (Civil Code) and subsequent regulations related to marriage and even then dealt with separately by Act No. 1 of 1974 on Marriage. On October 27 2016 the Constitutional Court (MK) through its Decision No. 69 / PUU-XIII / 2015 gives constitutional interpretation of Article 29 of Act No. 1 of 1974 on Marriage which basically says that the marriage contract can be carried out during the marriage bond. Therefore, the object of the author's thesis writing is a result of the law of the Constitutional Court decision that allows marriage after marriage. And the formulation of the problem in this paper are the implications of the procedure / mechanism of making the marriage contract and the legal consequences of the status of the property as well as third parties who feel aggrieved over the agreement. Methods used by the authors te is normative research method. So as to obtain results that due to the Constitutional Court's decision that allows the marriage contract after marriage alter the legal mechanism of making the marriage contract that can now be created during the marriage bond takes place by the Notary without preceded by the determination of the competent court and the legal consequences of making the marriage contract after the wedding on the status of property together with the inherent (closely related) to the time of entry into force of the agreement and binding on third parties.Keywords: Notary; Marriage Agreement; the Constitutional Court Decision
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Girard, Philip. "Themes and Variations in Early Canadian Legal Culture: Beamish Murdoch and hisEpitome of the Laws of Nova-Scotia". Law and History Review 11, n.º 1 (1993): 101–44. http://dx.doi.org/10.2307/743601.
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Beamish Murdoch (1800–76) was a young man when the first of the four volumes of hisEpitome of the Laws of Nova-Scotiarolled off Joseph Howe's press at Halifax in the spring of 1832. He was an old man when the first installment of his three-volumeHistory of Nova-Scotia, or Acadieappeared under James Barnes's imprint in the spring of 1865. These two works have received surprisingly disparate attention in the century since Murdoch's death. Today it is Murdoch the historian who is well known: No treatment of nineteenth-century Canadian historiography would omit reference to hisHistory. Murdoch's contributions to literary and political life, as editor of theAcadian Magazineand member of the Nova Scotia House of Assembly from 1826 to 1830, have also attracted attention. Murdoch the lawyer and legal treatise-writer, by contrast, is virtually unknown in both professional and legal academic circles, even in his home province. Until recently the Epitome has attracted virtually no scholarly attention of any kind.
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Njoya, Wairimu. "The Progress of Law: Aeschylus’s Oresteia in Feminist and Critical Theory". Political Theory 48, n.º 2 (23 de octubre de 2019): 139–68. http://dx.doi.org/10.1177/0090591719884570.
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The Oresteia is conventionally read as an account of progress from the age of private vendetta to the public order of legal justice. According to G.W.F. Hegel, an influential proponent of this view, the establishment of a court in Athens was the first step in the progressive universalization of law. For feminists and Frankfurt School theorists, in contrast, the Oresteia offers an account of the origins of patriarchy and class domination by legal means. This article examines the two competing interpretations of Aeschylus’s trilogy, arguing that they are not mutually exclusive. Rather than rejecting Hegel’s progressive thesis altogether, the critical theorists discussed here focus on the underside of progress. They make two claims that are explicated and defended in this article: first, that law follows a dialectical progression wherein measures to advance justice simultaneously intensify domination; second, that the dialectic of progress arises from the legal form itself—its presumed universality.
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Ocko, Jonathan K. y David Gilmartin. "State, Sovereignty, and the People: A Comparison of the “Rule of Law” in China and India". Journal of Asian Studies 68, n.º 1 (27 de enero de 2009): 55–100. http://dx.doi.org/10.1017/s0021911809000084.
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This paper uses the concept of the “rule of law” to compare Qing China and British India. Rather than using the rule of law instrumentally, the paper embeds it in the histories of state power and sovereignty in China and India. Three themes, all framed by the rule of law and the rule of man as oppositional yet paradoxically intertwined notions, organize the paper's comparisons: the role of a discourse of law in simultaneously legitimizing and constraining the political authority of the state; the role of law and legal procedures in shaping and defining society; and the role of law in defining an economic and social order based on contract, property, and rights. A fourth section considers the implications of these findings for the historical trajectories of China and India in the twentieth century. Taking law as an instrument of power and an imagined realm that nonetheless also transcended power and operated outside its ambit, the paper seeks to broaden the history of the “rule of law” beyond Euro-America.
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Anderson, Jack. "Sports Law in an Olympic Year: Citius, Altius, Fortius?" Legal Information Management 12, n.º 2 (junio de 2012): 72–80. http://dx.doi.org/10.1017/s1472669612000266.
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AbstractIn 2012 London becomes the first city to host an Olympics for the third time. The contrast between the Games of 2012 and those of 1908 and 1948 could not be starker and form a background to some of the matters discussed in this short piece. Central to the discussion is the contention that the development of the body of law now known as sports law is related to the accelerated commercialisation of sport during the past century. In short, the business of modern sport is exactly that – a business; indeed, sport is now a global industry and the commodification of sport will be seen to an exaggerated effect in London throughout the summer of 2012. Accordingly, this article by Jack Anderson begins by giving an outline of the financial robustness of modern sport, epitomised by the Olympics, before presenting a brief history of the evolution of sports law. Thereafter various issues in contemporary sports law are identified and discussed. The conclusion attempts to bring all of these themes together in order to give an overview of the area as a discrete, vibrant, if still emerging, discipline of law.
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Hajn, Zbigniew. "The Concept of Employer and the Extension of the Subjective (Ratione Personae) Scope of Collective Labour Law". Acta Universitatis Lodziensis. Folia Iuridica 95 (30 de marzo de 2021): 19–27. http://dx.doi.org/10.18778/0208-6069.95.02.
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In accordance with the changes in the provisions of the collective labour law in force since January 1, 2019, an employer within their meaning is also an organizational unit without civil law subjectivity, if it employs work contractors engaged in paid work engaged in paid work other than employees. This leads to the dualism of the notion and legal construction of the entity employing non-employee contractors on the basis of individual and collective relations. In individual legal relations, the entity employing contractors on the basis of civil law contracts may only be a civil law entity. On the other hand, in collective labour relations, organizational unit without civil law capacity may be regarded as their employer. The purpose of this study is to give the reasons for the thesis that such regulation leads to legal confusion, and the most appropriate way to remove it is to link the employer’s subjectivity with civil law subjectivity in individual and collective labour law.
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Dominey, Jane. "Probation supervision as a network of relationships: Aiming to be thick, not thin". Probation Journal 66, n.º 3 (18 de julio de 2019): 283–302. http://dx.doi.org/10.1177/0264550519863481.
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This article is about the networks of relationships (between people and between organisations) that underpin probation supervision. Drawing on evidence from a study researching these interactions, it develops two models of supervision (‘thin’ and ‘thick’) by taking themes that shape supervision and charting the interplay between them. The article develops these models in the increasingly fragmented landscape that has followed the Transforming Rehabilitation (TR) reforms in England and Wales. The concepts of ‘thin’ and ‘thick’ are used here to describe the supervisory network. Thin supervision describes a minimal and administrative approach to supervision. By contrast, thick supervision requires a network with strong and purposeful links. The article acknowledges the impact of public sector spending cuts on probation services and concludes by reflecting on the challenge of building and sustaining thick supervision in the current context.
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Koswara, Asep, Hasan Bisri y Ayi Ishak Sholih Muchtar. "Pendapat Syaikh Nizhamuddin Al-Balkhi dalam Kitab Fatawa Al-Hindiyyah tentang Ittishal antara Ijab dan Kabul Akad Nikah". Istinbath | Jurnal Penelitian Hukum Islam 14, n.º 2 (5 de noviembre de 2020): 131. http://dx.doi.org/10.36667/istinbath.v14i2.479.
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Marriage is considered valid if it has fulfilled the terms and conditions of marriage. Among the pillars of marriage are the consent and kabul. Based on the law of origin, the ulama agreed that the consent came from the bride, while the Kabul came from the groom. However, in the matter of ittishal between the consent and the marriage contract, the scholars have different opinions. If there is no ittishal between the consent and the marriage ceremony, then the contract is still considered valid while it is still focused on the contract procession and not for a long time. The objectives of the research are, (1) knowing and analyzing the opinion of Shaykh Nizhamuddin Al-Balkhi about ittishal between consent and kabul in the marriage contract, (2) knowing the basis of the legal arguments used by Shaykh Nizhamuddin Al-Balkhi regarding ittishal between consent and kabul in the marriage contract, and (3) knowing the ijtihad method used in his istimbath al-hukminya. In this thesis research the writer uses qualitative research methods, namely research methods that produce descriptive data in the form of words or written utterances from people or observed behavior. This type of research is a research library. The results showed, 1) The law of ittishal between consent and the marriage of marriage according to Shaykh Nizhamuddin Al-Balkhi in the fatawa al-hindiyyah book that ittishal between ijab and kabul nikah is only fi majlisin wahidin. The ittishal of the marriage contract that is valid in Indonesia is regulated in the Islamic Law Compilation (KHI) in article 27: consent and kabul between the guardian and the prospective groom must be clear in sequence and not intermittent. 2) The legal basis used by Shaykh Nizhamuddin Al-Balkhi in the matter of ittishal between consent and kabul akad nikah, namely the hadith of the Prophet narrated by Abu Dawud. 3) The ijtihad method used by Shaykh Nizhamuddin Al-Balkhi is qiyas. Shaykh Nizhamuddin al-Balkhi confirmed that the marriage contract was one majlis but did not work with the marriage contract that was represented and in a different place with the condition that there must still be witnesses.
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George, Peter y Philip Sworden. "The Courts and the Development of Trade in Upper Canada, 1830–1860". Business History Review 60, n.º 2 (1986): 258–80. http://dx.doi.org/10.2307/3115309.
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The centrality of transportation improvements and financial institutions to the economic development of Upper Canada in the first half of the nineteenth century is well known. In this article, Professor George and Mr. Sworden argue that the evolving legal system and legal institutions also played an important role as part of the infrastructure contributing to increased economic efficiency. In support of their thesis, they draw on court decisions on contract and property law, primarily from the judicial career of Sir John Beverley Robinson, chief justice of the Court of Queen's Bench for Upper Canada from 1829 to 1862.
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Torbus, Andrzej. "Wykładnia umowy jurysdykcyjnej zawartej na podstawie art. 25 Rozporządzenia Parlamentu Europejskiego i Rady (UE) Nr 1215/2012. Glosa do postanowienia Sądu Najwyższego z dnia 5 października 2018 r., I CSK 611/17". Problemy Prawa Prywatnego Międzynarodowego 25 (31 de diciembre de 2019): 123–37. http://dx.doi.org/10.31261/pppm.2019.25.07.
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The choice of court agreement (forum selection clause) is effectively concluded if there is no doubt that the party has actually become acquainted with its content. The Court of Justice of the European Union focuses on those aspects of the conclusion of the contract that allow the assessment that the other party is not surprised by the establishment of a subjective link. The compliance with formal requirements implies that the parties agreed on the conclusion of the contract. There are no objections about so understood “real consent of the parties” as a consequence of fulfilling not only the requirements as to the form, but above all as the way of the conclusion of the contract. The acceptance of the thesis that since the party expressed the undoubted consent to conclude the contract, there is thus no problem of the interpretation of the declaration of intent, is impossible. There is no dispute that the interpretation of a declaration of intent is a legal matter,since the methods of interpretation are determined by the law. According to the Polish Supreme Court, on the basis of Regulation 1215/2012 there is no problem of seeking of the applicable law, because the rules for the interpretation of a jurisdictional agreement should be interpreted from the provision of art. 25 of this regulation. This position is based on the main argument that any deviation from the autonomous rules of interpretation creates the danger that the courts of the Member States will differently determine the law applicable. The Court of Justice of the European Union accepts that an objective (normative) method of interpreting party’s statements should be used. In some situations, it is necessary to apply legis causae to effectuate a supplementary interpretation of the declarations of will.
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Bunadi, Bunadi y Marjan miharja. "JURIDICAL REVIEW OF THE IMPLEMENTATION OF A PARTICULAR TIME AGREEMENT BASED ON LAW NUMBER 13 OF 2003 CONCERNING MANPOWER". IBLAM LAW REVIEW 1, n.º 1 (31 de enero de 2021): 173–204. http://dx.doi.org/10.52249/ilr.v1i1.18.
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Industrial relations disputes are common in many companies. The dismissal process is often not in accordance with the provisions of labor regulations, one of which is regarding the dismissal of PKWT / contract workers. The formulation of the problems that the author discusses in this thesis are (1) What is the role of trade unions in fighting for dismissal disputes with PKWT / Contract workers? (2) Is the Application of a Fixed Time Work Agreement (PKWT) in accordance with the provisions of Law Number 13 Year 2003 concerning Manpower?
The research method used in this research is juridical normative, namely looking at the law as a written norm made and promulgated by an authorized official or institution, the nature of descriptive analytical research is a study to obtain an overview of the main object of the problem being researched. The results showed that, the role of trade unions in companies in fighting for dismissal disputes against PKWT / Contract workers in accordance with Law no. 2 of 2004 concerning PPHI article 6 in conjunction with article 8 in conjunction with article 81, namely by conducting a bipartite effort between the labor union and the company, because the bipartite effort failed, then submitted a mediation request to the Manpower Office. The mediation attempt still failed and subsequently filed a lawsuit for dismissal disputes at the Industrial Relations Court, although it was unsuccessful. The application of a fixed-term employment agreement (PKWT) is contrary to the provisions of Law number 13 of 2003 concerning Manpower Article 59 paragraphs (1), (2), and (7). In addition, the PHI Judge in deciding the case did not reflect a sense of justice and ignored the evidence presented by the plaintiff (the worker).
This problem should not have occurred, if the company obeyed and understood the labor regulations regarding workers who could be promised under a non-permanent contract or PKWTT.
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TOMBS, ROBERT. "‘LESSER BREEDS WITHOUT THE LAW’: THE BRITISH ESTABLISHMENT AND THE DREYFUS AFFAIR, 1894–1899". Historical Journal 41, n.º 2 (junio de 1998): 495–510. http://dx.doi.org/10.1017/s0018246x98007833.
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Queen Victoria, her court, the embassy in Paris, the prime minister, and the press, led by The Times, were early and impassioned sympathizers with Alfred Dreyfus and bitter critics of his persecutors. This article traces the development of their views and the information available to them, analyses the principal themes as they saw them, and attempts to explain how and why they formed their opinions. It considers why the Dreyfusard position was so congenial to them. It argues that their own principles and prejudices – conservative, patriotic, Anglo-Saxon, and Protestant – were confirmed by a critique of French political culture, seen as corrupted by a combined heritage of absolutism, revolution, Catholicism, and demagoguery. This appears to be confirmed by contrast with the few dissenting voices in Britain, on one hand Catholic and Irish, on the other, anti-Semitic socialist, who showed little sympathy with the Dreyfusards, and even less with the views of their British supporters.