Littérature scientifique sur le sujet « Civil law – interpretation and construction »
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Articles de revues sur le sujet "Civil law – interpretation and construction"
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Iryna, Sharkova. "Genesis Good Faith Interpretation (Interpretatio ex Bona Fide) in Roman Private Law." Legal Ukraine 5, no. 5 (2021): 46–50. http://dx.doi.org/10.37749/2308-9636-2021-5(221)-6.
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The paper explores the main meaning of understanding of interpretation technologies based on the principle of good faith (bona fides). For this purpose, a compratibly historical method of private law is applied. It was substantiated the understanding of the process of development for the Roman legal institution of interpretation (ius interpretātio) as a transformation of its historical forms or sub-institutions. Were further developed the historical reconstruction of the Roman legal institution of iudicia bonae fidei as the most important for the formation of ius interpretātio by focusing on the study of key legal constructions pro boni viri arbitrio. This made it possible to obtain information that can be reduced to three positions: (1) The essence of the Principle of Good Conscience has a constant nature in world history; (2) In Roman private law, a contextual approach to interpretation was used, and in modern civil law of Ukraine – fundamentally different, textual; (3) The subjective criterion of common sense requires the implementation of the Civil code of Ukraine. It provides changes in the official legal structure of the priority of the literal interpretation of the content of the transaction, enshrined in Art. 213 of the CCU, on the construction of the rule of good faith interpretation, which is generally recognized in European contract law. Key words: comparative historical analysis, good faith, common sense, good faith interpretation, good faith contracts, claims of goodholders.
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Wang, Yinwei. "Localization Construction of Security Token Offering." Transactions on Economics, Business and Management Research 5 (March 31, 2024): 207–19. http://dx.doi.org/10.62051/ca4aty74.
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The Security Token Offering (STO) represents a fusion of traditional securities and blockchain token issuance, categorized into asset-based STO, derivatives-based STO, and payment-based STO, establishing a novel tripartite legal relationship among the issuer, trading platform, and subscriber. This study commences by defining the essence of STOs, delving into the fundamental legal dynamics, and scrutinizing the primary challenges in localizing construction, specifically the limitations of the conventional civil law system and the complexities in establishing a rights bundle paradigm. In accordance with prevailing regulations, it advocates for a localized construction approach, involving an expanded interpretation within the criminal law and civil law systems. The adaptation within the criminal law system involves recognizing the property attributes to prevent classification as illicit tokens or other violations. Meanwhile, the adaptation within the civil law system entails endorsing the legalization of security token trading and validating the legitimacy of entrusted investment and trading activities involving security tokens.
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Омелёхина, Наталья, and Natalya Omelekhina. "The Legal Construction of Financial Liabilities: Conceptual Bases of Formation." Journal of Russian Law 4, no. 10 (2016): 0. http://dx.doi.org/10.12737/21539.
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In this article the legal construction is considered as a method of cognition, interpretation of law and as means of law-making technique at the same time. The author outlines the legal construction of the financial liability and provides with its structural and substantive description. The author offers to consider the legal construction of the financial liability as an inter-branch construction that combines private law constructions and public law constructions of monetary obligations. The majority of these constructions have a complex structure, where each party has the right to claim the completion of obligations and duty to complete these obligations at the same time. In this case, the majority of studied constructions of civil obligations are characterized by counter retribution while public law constructions by counter gratuitousness. The structural elements of this inter-branch construction are subjects, object and conditions of the obligation. The paper analyzes maintenance of selected structural elements. Using the method of scientific abstraction it is proposed to allocate General and Special conditions of financial liabilities. Special conditions of financial liabilities depend on the peculiarities of private law and public law regulations and on target orientation of liabilities (on the formation or on the expenditure of public funds). The author focuses on the target characteristic of structural elements of financial liabilities legal constructions. It is proposed to allocate the total and the direct target orientation of the financial liability.
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Piecha, Jacek. "Decyzja o zezwoleniu na lokalizację obiektów budowlanych w pasie drogowym jako źródło prawa do dysponowania nieruchomością na cele budowlane." Zeszyty Naukowe Uniwersytetu Rzeszowskiego. Seria Prawnicza. Prawo 30 (2020): 189–202. http://dx.doi.org/10.15584/znurprawo.2020.30.12.
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The article presents the problem of the interpretation of art. 3 point 11 of the polish Construction Law act. Abovementioned provision statues the definition of the notion of “right to use the real property for construction purposes”. Literal wording of art. 3 point 11 may seemingly indicate that this right may be arised only from private (civil) law’s legal relationships. This paper aims to indicate that such interpretation of the art. 3 point 11 of the Construction Law act is incorrect. The author proves that the administrative act like the permit for building structures localisation in the road lane (statued in the Public Roads Act) may be considered as independent source of the investor’s right to use the real property for construction purposes.
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Bonna, Alexandre Pereira. "Profiling, stigmatization, and civil liability." Brazilian Journal of Law, Technology and Innovation 2, no. 1 (2024): 25–49. http://dx.doi.org/10.59224/bjlti.v2i1.25-49.
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In the novel 'Brave New World,' Aldous Huxley envisions a dystopian future marked by mass production of lab-grown individuals, each assigned to specific castes. In this article parallels are drawn between this dystopian scenario and the dangers posed by technology, particularly in the realm of personal data and digital identity. It explores the potential infringement on privacy and equality rights, emphasizing the need for legal protection amid the increasing use of Big Data. The discussion delves into the theoretical foundations of personal data, virtual identity, and stigmatization, examining the role of civil liability in addressing violations of digital rights. The article navigates through relevant legal frameworks, including the Brazilian Federal Constitution, Consumer Protection Code, Civil Code, General Data Protection Law, and the Law of Public Civil Action, to assess the responses that civil liability can provide in the context of virtual rights violations. It emphasizes the historical construction of law, highlighting the necessity for legal frameworks to adapt to technological and cultural advancements. Despite specific data protection legislation, the article underscores the challenges in enforcing existing rights and calls for a nuanced approach to legal interpretation in the evolving digital landscape.
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Kleinman, Ron S. "The Halakhic Validity of Israel’s Judicial System among Israeli Ultra-Orthodox Halakhic Decisors." Review of Rabbinic Judaism 18, no. 2 (2015): 227–59. http://dx.doi.org/10.1163/15700704-12341286.
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This paper examines the approaches of three Israeli ultra-Orthodox halakhic decisors and rabbinical judges to civil law and adjudication in Israel. Based primarily on Israel’s building and condominium housing laws, it reveals that the approaches of these decisors appear largely to reflect their distinctive ideological and sociological stances towards Israeli civil law and its civil judicial system. Rabbis Israel Grossman and Shmuel Wosner confer halakhic validity on construction that is in violation of civil law, justifying it on the need to enlarge flats due to large family size and crowded conditions. On the other hand, Rabbi Asher Weiss objects to illegal building work, viewing it as “bad custom.” He maintains that religious Jews should serve as civil court lawyers and judges, regarding this as a holy undertaking. His attitude towards the civil judicial system is more sympathetic than that of Rabbis Grossman and Wosner. In each of their views, these Rabbis bring to their interpretation of Jewish law sources their distinctive ideological perspectives towards modern Israel’s civil law.
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Jędrejek, Grzegorz. "ODPOWIEDZIALNOŚĆ INWESTORA WOBEC PODWYKONAWCÓW (ART. 6471 § 5 K.C.)." Zeszyty Prawnicze 7, no. 1 (2017): 147. http://dx.doi.org/10.21697/zp.2007.7.1.08.
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The Liability of an Investor to a Subcontractor (Art. 6471 § 5 k.c.)SummaryThe article answers a question w hether an investor in case of a contract for construction works will be liable to a subcontractor also when he paid the latter all dues (including the rem uneration). These doubts are grounded in the form ulation of art. 6471 § 5 of the Polish Civil Code, according to which the party concluding a contract with thesubcontractor and the investor as well as the performer bear a joint andseveral liability for the payment of remuneration due to the subcontractor for the performed construction works. Taking into consideration a linguistic interpretation of the provision, as presented in the doctrine, it should be considered that the investor’s payment of the remuneration for the work performed by the subcontractor is permissible. Nevertheless, the author takes a different position based on the functional interpretation and interpretation referring to the whole system of the civil law.
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He, Houyi, and Jia Zeng. "Reflection and Improvement of the Principle of Treating Invalid Construction Contracts as Valid in the View of Civil Law." Asian Journal of Social Science Studies 7, no. 1 (2022): 1. http://dx.doi.org/10.20849/ajsss.v7i1.979.
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After the construction project is completed, if the contract is judged as invalid by the court at this time, it will involves the application of Article 157 of the Civil Code of People’s Republic of China: For example, how to return the completed construction, how to compensate for the discount if it cannot be returned, and what standard should be adopted for the discount compensation. In order to solve the above problems, the Supreme People's Court issued the "Interpretation on the Application of Law to the Trial of Construction Contract Disputes" (hereinafter referred to as "Interpretation"), which mentions that the above problems should be regulated in judicial practice through the invalid construction contract "treated as valid". However, the principle encounters many difficulties both in theory and practice. For example, how to avoid its counterproductive effect of encouraging the signing of invalid contracts to destroy the market order, whether to use the contractual standard or the engineering quota standard in the project settlement, and how to interpret the scope of "effective" to better protect the rights and interests of the parties. This paper mainly discusses the background of the development of construction industry from 2005 to 2020, the definition of the principle of invalid building construction contract, the applicable situation, the limitations in theory and practice, and the final reflections and countermeasures.
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АЛИМГАФАРОВА, Алина Ришатовна, and Олеся Рамильевна ГИМАДРИСЛАМОВА. "ARBITRATION AGREEMENT AS PART OF THE MECHANISM FOR CIVIL LAW CONTRACTUAL REGULATION." Rule-of-law state: theory and practice 18, no. 4(70) (2023): 77–85. http://dx.doi.org/10.33184/pravgos-2022.4.11.
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In the current circumstances o fth e constantly changing socio-political situation and the increasing complexity of existing legal relations, a positive trend has emerged in the field of obligation law, connected with the desire of the participants of civil circulation to take more personal part in the construction o f contractual legal relations, that is, to implement their individual regulation. In this connection, the search for and detailed study oflegal means to facilitate the effective regulation of contractual legal relations, both in substantive and procedural terms, has become an issue of particularrelevance. One such means is an arbitration agreement, the disclosure o fth e regulatory properties of which becomes fully possible when applying to it thebasic provisions of the concept o f civil law contractual regulation as one o fth e progressive directions of modern civil science. Purpose: to analyze the arbitration agreement from the standpoint of the concept o f civil law contractual regulation, to identify its features and determine its place in the structure of the mechanism fo r civil law contractual regulation. Methods: empirical methods of comparison, description, interpretation; theoretical methods of analysis, synthesis, induction, classification; specific scientificmethods: formal-logical and interpretation o f legal norms. Results: the study o fth e mixed legal nature of the arbitration agreement makes it possible toconsider it as an effective and exclusive part ofthe mechanism fo r civil law contractual regulation, fa cilitating the individual regulation of the proceduralaspects of their interaction by the participants in contractual legal relations.
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Deryugina, Tatyana V. "Linguistic Means of Misrepresentation or Fictitious Permissions in Structures of Civil Law Contracts." Civil law 6 (December 17, 2020): 3–7. http://dx.doi.org/10.18572/2070-2140-2020-6-3-7.
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The article raises the problem of the use of language tools in the conclusion of contracts, allowing to mislead contractors. The author analyzes the normative and linguistic prerequisites that contribute to the emergence of the possibility of dual interpretation of treaties. A detailed analysis of the legal doctrine and legal acts is carried out. The attention is focused on the rules of law in which incorrect use of the Russian language can not only lead to double current, but also mislead the subject of interpretation. Indicates the issue of double meaning of legal terms, and different interpretation of concepts from the point of view of the Russian language and the Russian legal language. The author studies various means of the Russian language used in the drafting of the text of contracts. There is a critical attitude to the use of evaluative concepts by the legislator, which do not have a clear semantic content and can vary significantly among different subjects of law. The problem of inclusion in the content of the contract of “as if” dispositive and “as if” permissive rules that mislead the party to the agreement is raised. Analyses of the situation to include the erroneous statements due to incorrect syntactic construction of the text of the article. Proposals are made to eliminate the problems associated with the use of language tools in the conclusion of contracts.
Thèses sur le sujet "Civil law – interpretation and construction"
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Neto, Ney Castelo Branco. "As demandas de massa : uma nova dogmática aplicável às teses repetidas." Universidade Católica de Pernambuco, 2010. http://www.unicap.br/tede//tde_busca/arquivo.php?codArquivo=481.
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Esta dissertação se propõe a uma investigação científico-dogmática das demandas relativas às teses repetidas, isto é, de mesma fundamentação jurídica. Para tanto, a partir da concepção histórica do processo civil, desde o seu nascimento até a mudança de paradigma com o surgimento das ações de massa, refletiu-se a respeito da descrição das melhores técnicas, tendo sido várias delas já inseridas em nossa legislação, para que assim se realize o direito de massa como um modelo de processo diferente do individual e do coletivo. Introduziu-se a noção de um processo de resultados práticos a partir da releitura do procedimento para casos
diferenciados, de modo a ocorrer maior racionalização dos julgamentos. Também foi analisado o uso dos precedentes judiciais e suas variantes como meio de unificação da
jurisprudência, o que denota maior aproximação ao direito de família do Common Law. A partir da demonstração de tais premissas, concluímos que é possível a construção de uma
dogmática própria para as ações de massa, pois crucial para garantir maior segurança jurídica nas soluções de casos análogos.<br>This dissertation aims to research scientific-dogmatic of demands conceming repeated theses, in other words, with the same legal reasoning. Therefore, from the historical
conception of civil procedure, from its birth to the paradigm shift with the emergence of mass action, reflected about the best techniques that were able to make the mass right as a model process other than the individual and the collective. Introduced the notion of a process of practical results from the rereading of the procedure for different cases in order to occur a greater rationalization of the judgments. Also discussed was the use of judicial precedents
and its variants as a means of unification of the jurisprudence, which denotes closer to family law in the Common Law. After the demonstration of such assumptions, concluded that it is possible to construct a particular dogmatic for mass actions, as crucial to ensure greater legal certainty in the solutions of similar cases.
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Branco, Neto Ney Castelo. "As demandas de massa : uma nova dogmática aplicável às teses repetidas." Universidade Católica de Pernambuco, 2010. http://tede2.unicap.br:8080/handle/tede/434.
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Previous issue date: 2010-06-18<br>This dissertation aims to research scientific-dogmatic of demands conceming repeated theses, in other words, with the same legal reasoning. Therefore, from the historical
conception of civil procedure, from its birth to the paradigm shift with the emergence of mass action, reflected about the best techniques that were able to make the mass right as a model process other than the individual and the collective. Introduced the notion of a process of practical results from the rereading of the procedure for different cases in order to occur a greater rationalization of the judgments. Also discussed was the use of judicial precedents
and its variants as a means of unification of the jurisprudence, which denotes closer to family law in the Common Law. After the demonstration of such assumptions, concluded that it is possible to construct a particular dogmatic for mass actions, as crucial to ensure greater legal certainty in the solutions of similar cases.<br>Esta dissertação se propõe a uma investigação científico-dogmática das demandas relativas às teses repetidas, isto é, de mesma fundamentação jurídica. Para tanto, a partir da concepção histórica do processo civil, desde o seu nascimento até a mudança de paradigma com o surgimento das ações de massa, refletiu-se a respeito da descrição das melhores técnicas, tendo sido várias delas já inseridas em nossa legislação, para que assim se realize o direito de massa como um modelo de processo diferente do individual e do coletivo. Introduziu-se a noção de um processo de resultados práticos a partir da releitura do procedimento para casos
diferenciados, de modo a ocorrer maior racionalização dos julgamentos. Também foi analisado o uso dos precedentes judiciais e suas variantes como meio de unificação da
jurisprudência, o que denota maior aproximação ao direito de família do Common Law. A partir da demonstração de tais premissas, concluímos que é possível a construção de uma
dogmática própria para as ações de massa, pois crucial para garantir maior segurança jurídica nas soluções de casos análogos.
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Schmitz, Leonard Ziesemer. "Raciocínio probatório por inferências: critérios para o uso e controle das presunções judiciais." Pontifícia Universidade Católica de São Paulo, 2018. https://tede2.pucsp.br/handle/handle/21605.
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Previous issue date: 2018-09-19<br>Coordenação de Aperfeiçoamento de Pessoal de Nível Superior - CAPES<br>The present doctoral thesis seeks to deal with judicial presumptions, thus understood inferential reasoning about unknown facts, from facts known and proven in a concrete case. First, we want to identify if there are the spaces of discretion that are shielded by insufficient presumptive arguments. The work is divided into two parts, with three chapters each. The first part serves to establish theoretical premises, and the second part to approach more closely the topic of presumptions in court. The first chapter discusses the conditions of possibility for the interpreter of a particular case to become aware of the facts narrated by other Interpreter-Subjects. Further notes are given on how the ransom of the past occurs when the judge analyzes the evidence and the probative narratives of the parties. The second chapter deals with science and rationality as grounds for the relation between two facts – one known, one unknown. Considerations are made about generalizations from experience, which allow for deductive, inductive, and analogical reasoning. Also questioned is the sufficiency of the use of the argument of "rationality", often insufficient to infer. The third chapter discusses the relationship between evidence and truth, especially when a judicial presumption is often made in the name of the "pursuit of truth" in the judicial process. Moving on to the second part, the fourth chapter addresses the division of labor between parties and judge in the correctness of the facts, establishing limits of action of each Subject of the process. There is also talk of judicial evidentiary activism. The fifth chapter deals specifically with the presumptions and rules of experience (Article 375 of the CPC), which serve as argumentative basis for inferences. The sixth and final chapter captures presumptions in their practical use and speaks, in detail, of the decision to reorganize and organize the process (article 357 of the CPC), which may be an opportune moment for the correct treatment of the subject. Finally, conclusions are drawn about a possible criteriology for the legitimate and discursive use of inferential reasoning<br>A presente tese de doutoramento busca tratar das presunções simples ou presunções judiciais, assim entendidos os raciocínios inferenciais sobre fatos não conhecidos, a partir de fatos conhecidos e provados em um caso concreto. Quer-se, antes de tudo, identificar quais são os espaços de discricionariedade que se blindam por trás de fundamentos presuntivos insuficientes. O trabalho está dividido em duas partes, com três capítulos cada. A primeira parte serve para estabelecer premissas teóricas, e a segunda para abordar mais de perto o tema das presunções em juízo. O primeiro capítulo fala a respeito das condições de possibilidade para que o intérprete de um caso concreto tome conhecimento dos fatos narrados por outros Sujeitos-intérpretes. São feitas ainda anotações sobre a maneira como o resgate do passado ocorre quando o juiz analisa as provas e as narrativas probatórias das partes. O segundo capítulo trata da ciência e da racionalidade como fundamentos para a relação entre dois fatos – um sabido, outro não sabido. Fazem-se considerações sobre as generalizações a partir da experiência, que permitem raciocínios dedutivos, indutivos e analógicos. É também questionada a suficiência do uso do argumento “racionalidade”, muitas vezes insuficiente para presumir. O terceiro capítulo fala sobre a relação entre provas e verdade, especialmente quando uma presunção judicial frequentemente é feita em nome da “busca da verdade” no processo judicial. Dando início à segunda parte, o quarto capítulo discute a divisão de trabalho entre partes e juiz no acertamento dos fatos, estabelecendo limites de atuação de cada Sujeito do processo. Fala-se também do ativismo judicial em matéria de provas e da possibilidade de produção oficiosa de provas. O quinto capítulo trata especificamente das presunções e das regras da experiência (art. 375, do CPC), que lhes servem de base. O sexto e último capítulo capta as presunções em seu uso prático e fala, com detalhe, da decisão de saneamento e organização do processo (art. 357, do CPC), que pode ser um momento oportuno para o trato correto do tema. Por fim, são traçadas conclusões a respeito de uma possível criteriologia para o uso legítimo e discursivo do raciocínio inferencial probatório
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Brand, Jacobus Frederick Daniel (Danie). "Courts, socio-economic rights and transformative politics." Thesis, Stellenbosch : University of Stellenbosch, 2009. http://hdl.handle.net/10019.1/1333.
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Thesis (LLD (Public Law))—University of Stellenbosch, 2009.<br>ENGLISH SUMMARY: The point of departure of this dissertation is that transformation in South Africa depends on transformative politics – extra-institutional, substantive, oppositional, transformation-oriented politics. One challenge South Africa’s constitution therefore poses to courts is to take account of the impact of adjudication on transformative politics. The purpose of this dissertation is to investigate the relationship between adjudication and transformative politics within a specific context – adjudication of socio-economic rights cases.
This relationship is commonly described in a positive light – either that adjudication of socio-economic rights cases promotes transformative politics by giving impoverished people access to the basic resources required for political participation; or that adjudication of such cases is in itself a space for transformative politics. Although there is much truth in both these descriptions, both under-estimate the extent to which adjudication also limits transformative politics. This dissertation focuses on the extent to which adjudication limits transformative politics – it comprises an analysis of socio-economic rights cases with the aim of showing how adjudication of these cases, despite positive results, also limited transformative politics.
The theoretical aspects of this problem are outlined in the first chapter. After a description of the body of case law on which the analysis focuses two chapters follow in which two ways in which adjudication limits transformative politics are investigated. The first traces how courts in socio-economic rights cases participate in discourses about impoverishment that tend to describe the problem as non-political – specifically how courts tend to describe impoverishment as technical rather than political in nature; and how courts implicitly legitimise in their judgments liberal-capitalist views of impoverishment that insist that impoverishment is best addressed through the unregulated market. Then follows a chapter investigating how views of legal interpretation in terms of which legal materials have a certain and determinable meaning that can be mechanically found by courts limit transformative politics by insulating adjudication from critique and emphasising finality in adjudication. Throughout it is shown how courts can mitigate the limiting effects of adjudication, by legitimating the political agency
of impoverished people, by using remedies requiring political engagement between opponents and postponing closure in adjudication, and by adopting a different approach to interpretation, that emphasises the pliability and relative indeterminacy of legal materials. Despite this, the conclusion of the dissertation is that courts can never wholly avoid the limiting impact of adjudication on transformative politics, but should rather aim to remain continually aware of it.<br>AFRIKAANS OPSOMMING: Die uitgangspunt van hierdie proefskrif is dat transformasie in Suid-Afrika afhang van transformatiewe politiek – buite-institusionele, substantiewe, opposisionele, transformasie-gerigte politiek. Een eis wat Suid-Afrika se grondwet daarom aan howe stel, is om ag te slaan op die impak van beregting op transformatiewe politiek. Die doel van hierdie proefskrif is om die verhouding tussen beregting en transformatiewe politiek binne ‘n spesifieke konteks – beregting van sake oor sosio-ekonomiese regte – te ondersoek.
Meeste beskouinge van hierdie verhouding beskryf dit in ‘n positiewe lig - óf dat die beregting van sake oor sosio-ekonomiese regte transformatiewe politiek bevorder deur vir verarmde mense toegang tot basiese lewensmiddele te bewerkstellig sodat hulle aan politieke optrede kan deelneem; óf dat beregting van sulke sake opsigself ‘n spasie is vir transformatiewe politiek. Hoewel daar waarheid steek in beide beskrywings, onderskat hulle die mate waartoe beregting ook transformatiewe politiek kan beperk. Hierdie proefskrif fokus op hoe beregting transformatiewe politiek beperk - dit behels ‘n analise van sake oor sosio-ekonomiese regte met die doel om te wys hoe beregting van hierdie sake, ten spyte van kennelik positiewe gevolge ook transformatiewe politiek beperk het.
Die teoretiese vergestalting van hierdie probleem word in die eerste hoofstuk beskou. Na ‘n beskrywing van die liggaam van regspraak waarop die analise fokus volg twee hoofstukke waarin twee maniere waarop beregting transformatiewe politiek beperk ondersoek word. Die eerste beskou hoe howe in sake oor sosio-ekonomiese regte deelneem aan diskoerse oor verarming wat neig om hierdie probleem as non-polities te beskryf - spesifiek hoe howe neig om hierdie problem as tegnies eerder as polities van aard te beskryf; en hoe howe liberaal-kapitalistiese sieninge van verarming, ingevolge waarvan verarming deur die ongereguleerde mark aangespreek behoort te word, implisiet in hul uitsprake legitimeer. Dan volg ‘n hoofstuk wat naspeur hoe sieninge van regsinterpretasie ingevolge waarvan regsmateriaal ‘n sekere en vasstelbare betekenis het wat meganies deur howe gevind word, transformatiewe politieke optrede beperk deur die openheid van beregting vir kritiek te beperk en finaliteit in beregting in die hand te werk. Deurgaans word gewys hoe howe die beperkende effek van beregting kan teëwerk, deur die politike agentskap van verarmde mense te legitimeer, deur remedies te gebruik wat politieke onderhandeling tussen opponente bewerkstellig en finale oplossings uitstel, en deur ‘n ander benadering tot interpretasie, wat die buigsaamheid en relatiewe onbepaalbaarheid van regsmateriaal erken, te omarm. Tog is die gevolgtrekking van die proefskrif dat howe nooit die beperkende effek van beregting op transformatiewe politiek geheel kan vermy nie, maar eerder deurgaans daarop bedag moet wees.
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Du, Toit Gerhard. "The significance of postmodern theories of interpretation for contractual interpretation : a critical analysis." Thesis, Stellenbosch : University of Stellenbosch, 2006. http://hdl.handle.net/10019.1/1245.
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Thesis (LLD (Mercantile Law))--University of Stellenbosch, 2006.<br>The objective of this study is to examine the significance of postmodern insights regarding interpretation (especially the rejection of intentionalism) and subjectivity for contractual interpretation theory.
In Part One (consisting of chapters 2-5), the leading postmodern insights on interpretation, individual autonomy, texts and intentionalism are discussed. This is done by analysing the present interpretive practice in four chapters: 1) Different theories of interpretation ranging from objectivism and natural law theories to post-structuralism are discussed in chapter 2. 2) In chapter 3 individual autonomy (as advocated by liberal theorists) is contrasted with communitarianism in order to problematize the notion of contracting parties as autonomous, self-regulating beings. By highlighting criticism against liberalism and communitarianism, and also by suggesting critical self-rule as an alternative, the assertion that contracting parties are autonomous and self-regulating is contested. 3) The process of textual definition is critically analysed with emphasis on the position reflected by the application of the parol-evidence rule and also post-structuralist ideas on the definition of texts in chapter 4. It is shown that textual definition consists of interpretation rather than identification. 4) The nature of intention and the process of intention “discovery” are analysed in chapter 5. Because of the centrality of intention in contractual practice, alternative theories on intention (and its role during interpretation) are postulated and it is suggested that post-structuralism can provide a critically reflective theory of intention. It is clear (from the critical analysis of intentionalism) that the way intention is presently approached is theoretically flawed. It is also apparent from the critique of liberal beliefs held regarding the nature of interpretation, subjectivity and the definition of texts that the theoretical foundations of these beliefs are fundamentally flawed. A critical re-imagination of contractual interpretation is necessary.
In Part Two, questions about the justifiability of the present interpretive theories are posed. In chapter 6 the practical implications of a new theoretical basis for contractual interpretation are considered by examining the way various rules of interpretation are influenced by the new theoretical basis of interpretation. Three “rules” are examined: 1) The golden rule of interpretation is examined because of its reliance on intentionalist assumptions; 2) the parol-evidence rule is examined because of its relation to positivist assumptions about the definition of texts; 3) the relevance of bona fides as a substantial remedy during the interpretation of the contract is analysed to reveal assumptions about the nature of legal subjectivity in which the present consideration of the bona fides is grounded. It is shown that rules depend not on their content for operation, but rather on the assumptions upon which they are grounded. In short, we do not have to do away with our rules of contractual interpretation, but we have to re-evaluate how we apply those rules.
The final part of this dissertation consists of a summary of the conclusions drawn during the course of this study.
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曹永強 and Wing-keung Tommy Cho. "Judicial interpretation / fictionalization." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 1999. http://hub.hku.hk/bib/B31972731.
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Catterwell, Ryan Ronald. "CONSTRUCTION IN CONTRACT LAW: A LOGICAL AND STRUCTURED APPROACH." Thesis, The University of Sydney, 2017. http://hdl.handle.net/2123/17990.
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Construction is a pervasive feature in contract law. It is a technique employed to define a contractual rule, ie, a rule that makes up part of a contract. In construction, the objective intention of the parties is inferred from the choice of words in the contract. But construction has a narrow focus: the aim is to resolve a particular question of intention. From this starting point, construction fits within a logical structure. It consists of four stages. First, the relevant question is defined. The question may relate to any aspect of the contractual relationship. Second, potential answers to the question are put forward. Each answer amounts to a competing ‘construction’, ie, a competing formulation of the disputed rule that forms part of the contract. Third, arguments in support of each construction are formulated. The arguments are built from the admissible materials, ie, the text, the potential meanings for words, the background to the transaction, the purpose of the contract, the consequences of the competing constructions, and normative factors, such as business commonsense. In the final stage, the ‘correct’ construction is chosen as a matter of probable intention by evaluating the competing arguments. The benefits of the proposed model are two-fold. First, it offers a comprehensible means of understanding construction at a level of sophistication warranted by the complexity of the process. Through the model, one can understand the reasons for a decision in a construction case in terms of the composition of competing arguments at play. In particular, construction disputes often involve a tension between: (i) arguments as to intention drawn from the meaning of the words agreed; and (ii) arguments as to intention that are based on the purpose of the contract or the consequences of the competing constructions. Usually, in the case of such tension, the construction that succeeds is the one that fits best with the contract taken as a whole. Understanding construction in this manner can bring clarity and consistency to judicial reasoning in construction. It can also explain the role of construction in contract law. This is the second benefit of the model. By defining construction in its core interpretative function, it can be distinguished from analogous contract law techniques. The contractual relationship is governed by a combination of rules agreed by the parties and rules imposed by doctrine and statute. Contract law employs a variety of techniques and processes to administer these rules. Construction is but one of these techniques: it is the primary means through which contractual rules are defined. However, contractual rules can also be defined as a matter of implication or rectification. In addition, many doctrinal rules require conclusions regarding intention that may or may not be established on a constructional basis. Hence, the thesis presents not only a novel way to understand construction, but also a fresh perspective on the nature of contract law.
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Lee, Jack Tsen-Ta. "An articulate silence : the interpretation and construction of taciturn bills of rights." Thesis, University of Birmingham, 2012. http://etheses.bham.ac.uk//id/eprint/3572/.
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Taciturn bills of rights and constitutions – texts that express concepts at high levels of abstraction or which do not provide much guidance in other ways – pose challenges for courts responsible for determining their meaning and applying them. This dissertation aims to identify the approach that might be taken by courts in Commonwealth jurisdictions with written constitutions. It argues that the starting point is the legislative intention underlying the text, and that the preferred conception of such an intention is moderate originalism. This requires ascertainment of the meaning the legislators imbued the text with through their choice of words at the time the constitution was enacted, but which recognizes that parts of the text may be interpreted dynamically where language connoting abstract moral principles has been employed. The dissertation distinguishes constitutional interpretation from constitutional construction. Interpretation involves identifying the semantic content of a constitutional text, and to do so courts should consider the linguistic, purposive and applicative meanings of terms and provisions. Where interpreting the text does not yield any useful or complete legal rule, the court must engage in construction by applying legal principles and techniques such as the presumption in favour of generosity, the use of constitutional implications, and a proportionality analysis. Thus, any constitutional ‘silence’ is in fact not so silent after all, as it may be given voice by the court.
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Galea, Patrick Joseph. "Trust laws of Jersey and Malta : a civilian interpretation." Thesis, University of Edinburgh, 2016. http://hdl.handle.net/1842/30995.
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This thesis attempts to identify the philosophy, key questions and priorities behind the trust laws of Jersey and Malta. By wide accord, the Jersey law has served as a model in many ways to its later Maltese counterpart. This affinity is placed against the similar background of either jurisdiction, which embraced, to varying degrees, both the Civil Law tradition and Common Law influence. The analysis is advanced through the different moments of the trust, from its creation to termination. Nevertheless, the underpinning focus and thrust is on the civilian identity of either trust. It considers whether, and how far, the fundamental Civil Law concepts and language play a defining role in their civilian configuration. The question is asked whether the creation of the trust and the duties of a trustee can possibly be classified as obligational or contractual, or maybe something else. The nature and character of the beneficiary’s rights are also reviewed. The overarching role of good faith and civil responsibility, along with their extent of interaction with traditional Equity fiduciary duties, are weighed, an assessment naturally following from the civilian flavour attributed to the trusts. The conceptual overlapping between the Roman-Civil law fiducia, and related figures such as the mandat prêt-nom, with the Equity fiduciary duties, is assessed. The role, even if subsidiary, of civilian unjustified enrichment, remains an ever-present relevant factor. Sham trusts and simulatio, the Pauline fraud and legitim are considered in the context of the civilian identity of these trusts. The discussion then engages with the other strand of the thesis, being the role of the governing law, as the ‘mind’ behind the trust legislations assessed. The discussion engages with the question whether the trusts fall on the side of respect for the ‘autonomie de la volonté des parties’ or on other policy determinants behind the law.
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Yang, Xiaonan, and 楊曉楠. "The interpretation of the Hong Kong Basic Law: an institutional analysis." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2009. http://hub.hku.hk/bib/B42181999.
Texte intégralLivres sur le sujet "Civil law – interpretation and construction"
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Commission, Scottish Law. Interpretation in private law. The Commission, 1996.
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Shuy, Roger W. Fighting over words: Language and civil law cases. Oxford University Press, 2007.
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Levasseur, Alain A. Deciphering a civil code: Sources of law and methods of interpretation. Carolina Academic Press, 2015.
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Belgium. Code civil: Textes en vigueur au 15 octobre 2003. 3rd ed. Bruylant, 2003.
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Balleis, Kristina. Introduction to English civil law for German speaking lawyers and law students. 5th ed. Alpmann und Schmidt, 2012.
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Alvarez, Miguel Angel Pérez. Interpretación y jurisprudencia: Estudio del artículo 3.1 del Código Civil. Aranzadi, 1994.
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Lambert, Edouard. Le droit civil et la législation ouvrière. Dalloz, 2013.
Trouver le texte intégralChapitres de livres sur le sujet "Civil law – interpretation and construction"
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Solimene, Fabio. "Interpretation of construction contracts." In The Law and Practice of Complex Construction Projects. Informa Law from Routledge, 2024. http://dx.doi.org/10.4324/9781003387718-37.
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Van Schooten, Hanneke. "Law as Fact, Law as Fiction." In Interpretation, Law and the Construction of Meaning. Springer Netherlands, 2007. http://dx.doi.org/10.1007/1-4020-5320-7_1.
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Carrara, Cecilia. "Liquidated damages in civil law jurisdictions." In Construction Law in the 21st Century. Informa Law from Routledge, 2024. http://dx.doi.org/10.4324/9781032663975-17.
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Leaua, Crenguta, and Corina Tanase. "Arbitration and insolvency in civil law European countries." In Construction Law in the 21st Century. Informa Law from Routledge, 2024. http://dx.doi.org/10.4324/9781032663975-20.
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Jackson, Clare. "Natural Law and the Construction of Political Sovereignty in Scotland, 1660–1690." In Natural Law and Civil Sovereignty. Palgrave Macmillan UK, 2002. http://dx.doi.org/10.1057/9781403919533_11.
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Edelman, Lauren B. "Law at Work: The Endogenous Construction of Civil Rights." In Handbook of Employment Discrimination Research. Springer New York, 2005. http://dx.doi.org/10.1007/978-0-387-09467-0_17.
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Arias, David, and James Doe. "Searching for convergence between the common law and civil law traditions on good faith through international arbitration." In Construction Arbitration and Alternative Dispute Resolution. Informa Law from Routledge, 2021. http://dx.doi.org/10.4324/9781003155973-10.
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Deng, Liwen, Jianting Pan, Haolin Ye, Jinming Zeng, Hao Lu, and Hong Pan. "Study on Ground Deformation Law of Small Spacing Shield Tunneling in Sand and Rock Composite Stratum." In Lecture Notes in Civil Engineering. Springer Nature Singapore, 2023. http://dx.doi.org/10.1007/978-981-99-2532-2_20.
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AbstractThe construction of shield tunnel often occurs in composite stratum, so it is of great significance to study the law of surface deformation under the working condition of composite stratum in order to ensure the safety of shield construction. Based on the actual tunnel engineering, the law of ground surface soil deformation caused by shield construction in the composite stratum of upper sand and lower rock is studied by using the method of field measurement. The results show that: The width coefficient of the surface settlement trough basically remains stable with the shield construction, and the stratum loss rate changes exponentially with the shield construction; Affected by the disturbance of the previous shield construction, the surface settlement trough caused by the subsequent shield construction is no longer on the top of the tunnel axis, and will move with the construction process, which is greatly affected by the shield attitude parameters; Taking into account the conditions of the center movement of the settlement trough of the subsequent tunnel, the total surface settlement caused by the successive shield constructions adopts the modified Mark-bolt formula to make the fitting parameters of the settlement trough more suitable for reality.
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Wang, Zhu. "Constitutionality of Legal Interpretation—Taking Interpretation of Article 166 and 167 of the Real Rights Law as an Example." In On the Constitutionality of Compiling a Civil Code of China. Springer Singapore, 2019. http://dx.doi.org/10.1007/978-981-13-7900-0_5.
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Xie, Hongfei, and Xiaoxiong Xia. "The Rule of Law in Civil and Commercial Matters: Building the Cornerstone for Safeguarding Rights." In The Chinese Path of Rule of Law Construction. Springer Singapore, 2021. http://dx.doi.org/10.1007/978-981-16-4130-5_4.
Texte intégralActes de conférences sur le sujet "Civil law – interpretation and construction"
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Al-Marri, Saad Zayed, Gary Peach, and Furqan Hameed. "Comparison of Geotechnical Investigation Results with Encountered Ground Conditions during Subsea Tunnelling in Qatar." In The 2nd International Conference on Civil Infrastructure and Construction. Qatar University Press, 2023. http://dx.doi.org/10.29117/cic.2023.0068.
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Starting in 2018, Musaimeer Pumping Station and Outfall Project (MPSO) was constructed to manage ground and storm water received from 270 km2 area of southern Doha, Qatar. The project consists of a pumping station, subsea tunnel, (constructed through Rus formation, Midra shale and Simsima limestone), riser shaft and diffuser bed structure. An Earth Pressure Balance (EPB) Tunnel Boring Machine (TBM) was used for subsea tunnelling where ground water inflows, mixed ground condition with the presence of vertical and lateral fractures connected to the seabed were encountered during tunnelling activity. This paper analyses the reliability of geotechnical investigation results and interpretations by comparison with encountered conditions. This will be beneficial to design a reliable geotechnical investigation programme for future projects of similar scope in the state of Qatar. Results and interpretations from drilled bore holes and geophysical survey provided an overall picture of underground conditions along the tunnel alignment, which identified the critical tunnelling areas for cutter head intervention and maintenance. These results were then compared with the built geotechnical conditions accessed by collecting data through the onboard TBM monitoring equipment, collecting rock mass samples, and performing geological face mappings during tunnelling activity. Comparison of pre-tendered investigation results with the built geotechnical conditions concluded that investigation results and encountered rock mass conditions were in line with each other. Geotechnical investigation programme followed for this project and interpretation as a result, made the tunnelling under sea to be carried out in more careful and low risk manner.
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White, Nancy J., Sigitas Mitkus, and Renata Cibulskienė. "Classification of a defect as breach of contract or tort: a comparative study of the U.S. and the Republic of Lithuania." In Contemporary Issues in Business, Management and Economics Engineering. Vilnius Gediminas Technical University, 2019. http://dx.doi.org/10.3846/cibmee.2019.067.
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Purpose – this paper compares the approach of United States’ law and Lithuanian law in classifying a construction defect as a breach of contract or tort. Research methodology – the paper uses case studies to analyze. Unites States’ law approach divides damages into damages for breach of contract and tort damages. According to Lithuanian law, civil liability is assigned to contractual and non-contractual (tort) liability depending on the nature of the unlawful actions. Findings – the cases demonstrate that a defect usually is considered a breach of contract. Different types of damages are recoverable: compensatory damages according to United States’ law and direct and indirect damages are recoverable according to Lithuanian law. Research limitations – both contractual and non-contractual liability are analyzed. In addition, defects to construction by an act of fraud are covered. More research is needed on how the law affects the extension of the warranty period or the statute of limitations. Originality/Value – the paper provides a new interpretation of classification a construction defect as a breach of contract or tort and offers new insights comparing the different approach of law. Practical implications – the paper will be instructive to developers, contractors, management corporations
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Suyunova, Z. M. "Doctrinal interpretation of property rights in civil law." In Scientific Trends: Law. ЦНК МОАН, 2020. http://dx.doi.org/10.18411/spc-20-05-2020-05.
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Rumengan, Hervian Yulia. "Law Principles of Contract Interpretation Based on Indonesian Civil Code." In Proceedings of the International Conference on Business Law and Local Wisdom in Tourism (ICBLT 2018). Atlantis Press, 2018. http://dx.doi.org/10.2991/icblt-18.2018.27.
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Mutis, Ivan, Raja R. A. Issa, and Ian Flood. "Conceptual Role Semantics for the Interpretation of Construction Concepts." In International Workshop on Computing in Civil Engineering 2007. American Society of Civil Engineers, 2007. http://dx.doi.org/10.1061/40937(261)38.
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Sun, Qianchen, Mohammed Elshafie, Chris Barker, Anthony Fisher, and Andrew Bell. "Data Interpretation Framework for Pile Thermal Integrity Testing." In The 2nd International Conference on Civil Infrastructure and Construction. Qatar University Press, 2023. http://dx.doi.org/10.29117/cic.2023.0101.
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Given the inherent nature of how deep cast in-situ concrete foundations (piles and diaphragm walls) are constructed, evaluating their integrity is difficult. Several well-established methods for testing integrity have been established, but each has its own advantages and disadvantages. In recent years, a new integrity test method called thermal integrity profiling (TIP) has been put into use in deep foundation construction. The primary characteristic utilised in this test is the early-age concrete release of heat during curing; abnormalities such as voids, necking, bulging, and/or soil intrusion inside the concrete body lead to local temperature fluctuations. During concrete curing, temperature sensors installed on the reinforcing cage collect precise temperature data along the entire pile, allowing empirical identification of these temperature variations. This paper proposes a staged data interpretation framework for pile integrity assessment, with the thermal integrity test serving as the initial step. The framework, which is adaptable to different concrete mixtures and pile designs, utilises the heat of hydration and the theory of heat transmission, as well as numerical modelling with the Finite Element (FE) method. It also adopts a staged procedure to assess the as-built quality; for a particular pile, more details are revealed about any anomalies being investigated (including location, size and shape) at each subsequent stage. The primary advantage of this staged process is that it enables practitioners to follow a risk-based approach and decide whether or not to pursue subsequent stages of construction depending on the results they get at the end of each stage. This provides practicing engineers with vital information about the quality of the pile immediately after pile building, so permitting immediate and less expensive repair and remedial work if required.
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Ollongren, Alexander. "Large-Size Message Construction for ETI - Inductive Self-interpretation." In 54th International Astronautical Congress of the International Astronautical Federation, the International Academy of Astronautics, and the International Institute of Space Law. American Institute of Aeronautics and Astronautics, 2003. http://dx.doi.org/10.2514/6.iac-03-iaa.9.2.09.
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Mitkus, Sigitas. "The concept of proper quality of construction works in lithuanian construction law." In Business and Management 2016. VGTU Technika, 2016. http://dx.doi.org/10.3846/bm.2016.27.
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The article analyses the concept of proper quality of construction works in law of the Republic of Lithuania. The analysis covers the quality requirements laid down in the Law on Construction, the Civil Code and case law. The article also defines and analyses the main categories used in Lithuanian law to characterise the quality of construction works, in particular, compliance with the standard quality of a construction works, compliance with the quality requirements set in contract documents, compliance with the requirements ordinarily presented for work of the respective nature, and fitness for use in accordance with its designation within the limits of a reasonable period.
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Niu, Jia, and Raja R. A. Issa. "Rule-Based NLP Methodology for Semantic Interpretation of Impact Factors for Construction Claim Cases." In 2014 International Conference on Computing in Civil and Building Engineering. American Society of Civil Engineers, 2014. http://dx.doi.org/10.1061/9780784413616.281.
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P., Senthil Kumar, and Anu V. Thomas. "Evolution of Arbitration Law in India." In 6th International Conference on Modeling and Simulation in Civil Engineering. AIJR Publisher, 2023. http://dx.doi.org/10.21467/proceedings.156.31.
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The construction industry is considered to be one of the most dispute-prone industries in the world. Disputes of any kind need to be solved through alternate dispute resolution methods to avoid delay in the completion of the projects and thereby reduce financial losses. Arbitration is an alternative dispute resolution mechanism that has been in use since ancient times worldwide. In India, various laws related to arbitration were formulated prior to British rule and also post-independence. In this paper, an attempt has been made to compare the different Arbitration Acts existing in India to study their effectiveness in dispute resolution.
Rapports d'organisations sur le sujet "Civil law – interpretation and construction"
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Schuster, Christian. Strategies to Professionalize the Civil Service: Lessons from the Dominican Republic. Inter-American Development Bank, 2014. http://dx.doi.org/10.18235/0010594.
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Drawing on a case study of recent reforms in the Dominican Republic, this technical note derives lessons about strategies to professionalize the civil service. As in other countries with less professionalized civil services, the Dominican Republic's political economy is biased against reform: promises of public employment tend to be important to successful electoral mobilization. Nonetheless, passage of a new public service law and its partial implementation were achieved. The case study finds that the construction of a broad societal coalition demanding reform may account for this puzzle. For legislative approval, alliance formation extended to not only traditional reform allies, such as the international community, NGOs, business associations, the media, progressive governing legislators and a politically influential minister, but also novel allies, including opposition parties. Reform implementation was fostered by the periodic and well-publicized societal monitoring of an achievable set of reform objectives aligned with the strategic priorities of the Ministry of Public Administration. As a result, political incentives were tilted towards legal reform passage and incremental compliance in civil service subsystems such as organizational structures, information systems and training not perceived as threatening to core electoral mobilization interests, yet not in more politically contentious subsystems, such as recruitment and selection. The case study underscores the desirability of constructing broad societal coalitions to enable civil service professionalization particularly in contexts where potential societal veto actors with vested interests, such as public sector unions, are largely absent. It also underscores the continued weight of political economy constraints in conditioning the subsystems in which civil service reform implementation may be achieved.
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Kim, Hyeyoung, Jihyun Lee, and Gerardo Reyes-Tagle. Standardized PPP Contract in Korea and its Implications for Latin America and the Caribbean. Inter-American Development Bank, 2021. http://dx.doi.org/10.18235/0003708.
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The standardization of PPP contracts in Korea has played a key role in establishing PPP institutional frameworks in the civil law system in which there must be legal and institutional safeguards for the long-term PPP contracts. The reliability of standardized contracts is secured due to the fact that the standardized PPP contract has been prepared by the statutory PPP agency under the approval of the Ministry of Economy and Finance, an influential ministry within the government. The standardization of PPP contracts has been of great utility for both the competent authorities and private partners. The standardized contract has streamlined negotiations. The private partner was able to trust in the major risk allocation declared through the standardized contract in handling land acquisition, construction completion, operation and demand, and termination. We found out through our survey that there are similarities between Korea and LAC countries in that most LAC countries have adopted the civil law system and the countries have developed similar payment types for PPP and risk allocation principles. The experience and lessons on standardized PPP contract in Korea can be of great utility to LAC countries.