O konstytutywnej współzależności wyjaśniania i identyfikowania czynności konwencjonalnych

Author(s): Olgierd Bogucki / Language(s): Polish Issue: 2/2019

The article examines the specific correlation (interdependence) between the identification and intentional explanation of conventional acts (in particular, legally significant conventional acts). The author describes this interdependence as ‘constitutive’ because in this case intentional explanation plays a constitutive role for the identification of a conventional act. This can be expressed through the formula: ‘person P performed conventional act CA1 ’ only if ‘person P performed conventional act CA1 because person P was driven by the intention to perform conventional act CA1 .’ The article analyses the logical and argumentative structure of the abovementioned correlation. On the basis of the analysis, the author claims that a constitutive correlation indicates that a relevant intention should be perceived as an element of the act itself (in contrast to the view adopted in the theory of conventional acts) and that verification rules relevant for the given act exist alongside the constitutive rules. Recognizing the relevant intention as an element of the conventional act stands in opposition to causalism, which treats intentions as the causes of actions.

Bruce Lee’s Case: Intellectual Property vs. Free Access to Culture and Protection of Public Interest

Author(s): Kamil Zeidler,Magdalena Łągiewska / Language(s): English Issue: 3/2020

This article provides a comprehensive analysis of Bruce Lee’s case by presenting the intellectual property rights mechanisms in the People’s Republic of China. The aim of this paper is to bring attention to the trademark law as well as to shed new light on infringements of personality rights, in particular portrait rights, in trademarks. This begs the question as to what kind of legal action should be undertaken by Bruce Lee’s heiress to protect her rights. Moreover, the article touches upon the conflict between the public interest and trademarks and tries to answer the question how to balance private holders’ rights with the public interest. In order to provide some hypothetical scenarios, the study focuses primarily on Bruce Lee’s case background and the new amendments to trademark law in China, bringing the authors to final deliberations on Bruce Lee as part of modern culture belonging to mankind as a whole. Therefore, our research aims to find a solution to the challenging problem of reconciling intellectual property rights protection mechanisms with the common cultural heritage.

Guilty of not doing that!

Author(s): Marco Mazzocca / Language(s): English Issue: 2/2020

Since ancient times, many legal constructions regarding blame or responsibility require subjects to be deemed accountable for their actions as well as for their omissions. The primary purpose of this work is to account for some legal and philosophical issues regarding the so-called negative events (i.e., events that have not occurred) through the development of two simple ideas. The first idea is to consider that, in most cases, a negative event is simply a normal positive event described negatively. The other idea is to distinguish the causal explanations of an event from the causal reports of an event. In this sense, it is shown how these two ideas not only clarify some fundamental philosophical issues, but they are also an excellent starting point for the interpretation and the application of some legal rules concerning omission.

Езикова (не)определеност на правните предписания

Author(s): Yanaki Stoilov,Dilyan Nachev / Language(s): Bulgarian Issue: 4/2019

The article raises the issue of the defi niteness and, respectively, the indefiniteness of legal prescriptions. Definiteness is a feature of law which contributes to its foreseeability. The subject matter of the study consists in the linguistic indefi niteness and, partly, its opposite – the overly defi niteness of legal prescriptions. A distinction is made between linguistic and functional indefi niteness. The indefi niteness is linguistic where it is due either to unclarity or to the use of terms of a rather abstract or ambiguous content. It is functional where there exist concurrent principles and contradictory methods of interpretation that the enforcement body must choose among. The factors on which the (in)defi niteness of legal prescriptions depends are pointed out. Numerous examples are given in the fi eld of civil and criminal law that illustrate the issue. A conclusion is drawn that it is necessary to seek a compromise and a balance between the generalization and the specifi cation of factual circumstances, and to enhance the definiteness of legal prescriptions, yet, this should not paralyze the effect of the rules.

Правните принципи в правната теория

Author(s): Valentin Georgiev / Language(s): Bulgarian Issue: 4/2018

Форми на правните принципи

Author(s): Yanaki Stoilov / Language(s): Bulgarian Issue: 2/2017

The question of the forms of legal principles is new to the theory of law. Being a definitely institutional and formal phenomenon, law requires that special attention be drawn to its form, including the form of the legal principles. The cognitive order of the categories through which the legal principles are examined consists of the following sequence: the term ‘legal principle’, functions of legal principles, forms and types of legal principles. The forms of the legal principles encompass the whole variety of legal principles, while the types of legal principles particularize this variety through couples of principles. The form of a legal principle expresses the way of its existence, the specifics of its effect and application. Depending thereupon, the forms of legal principles are: principles-declarations, principles-rights/obligations and principles-maxims.

Доктринални диалози в концепцията за юридическата справедливост на Томас Остеркамп

Author(s): Lyuba Tsakova / Language(s): Bulgarian Issue: 1/2017

The protection of the confidentiality of journalistic sources is an important part of the freedom of speech, a basic prerequisite for the existence of civil society and a condition for the democracy in a state. The international standards in this field lay down clear parameters of the protection of sources. Nevertheless, it is necessary to have a detailed regulation of these social relations at the national level for the purpose of guaranteeing the rights and the legal interests of the journalists and the sources, as well as the public interest. This can be realized through a well-developed regulatory framework, which provides for protection of the confidentiality of sources and sets out the limits of this protection. That is the only way for the press and especially for the investigative journalism to be able to play the role of a social guardian.This article constitutes an attempt at presenting contemporary German doctrine through the ideas of Thomas Osterkamp exposed in his book “Juristische Gerechtigkeit. Rechtswissenschaft jenseits von Positivismus und Naturrecht” (“Legal Justice. Jurisprudence beyond Positivism and Natural Law”), in which the author seeks to create a legal justice concept that is substantiated by the legal theory and dogmatics and brings together the main features of natural law and positivism.Consistent consideration is given to the extralegal criteria in the legal argumentation of a fair judgement and to R. Alexis’ thesis of “the special case” in the general practical discourse on the aspect of moral and philosophical substantiation of a fair judgement.Attention is given to Osterkamp’s view of legal justice within the valid legal order and a peculiar dialogue is presented involving the author (T.O.) and concerning the concept of formal justice of C. Perelman and the system theory of N. Luhmann.

Към общата теория за правните субекти

Author(s): Vihar Kiskinov / Language(s): Bulgarian Issue: 6/2015

The law of information society operates in material and virtual environments. Legal entities must also exist and operate in both physical and virtual environments. New legal and ideal models with new qualities characterise entities specifically designed for their virtual life. Therefore, the general term “legal entity” should be revisited and broadened.

Философският позитивизъм и възникването на правния позитивизъм: анализ чрез историята на идеите

Author(s): Simeon Efimov Groysman / Language(s): Bulgarian Issue: 3/2015

Why is the empiricist tradition within modern juridical thought called legal positivism – because it is claimed to have a relation to positive law or because of its philosophical origins? In order to solve this etymological problem a hypothesis on the relation between philosophical and legal positivism in their initial manifestations is presented. The main idea, which is elaborated and defended in the article, is that legal positivism used the empiricist epistemology and followed the scientific criteria and arguments about the function of science, as maintained by the positivist philosophers. A brief review of the epistemological empiricism of Modernity and of philosophical positivism is provided. The influence of their basic arguments on leading legal positivists is traced. The aim of the analysis is to emphasise on the direct references and personal interactions between philosophers like Hume, Comte, J. S. Mill, and certain jurists. In conclusion, the features of philosophical positivism in the legal theories of Bentham, Austin and Bergbohm are described and an answer is given to the question about the historical and cultural roots of European positivism.

Практически проблеми, свързани с отлагане на ползването и погасяване по давност на платения годишен отпуск, както и отлагане на ползването на някои други видове отпуски

Author(s): Andrey Aleksandrov / Language(s): Bulgarian Issue: 6/2014

The article seeks to give answers of some frequently asked questions in the practice, related to the postponement of use of the annual paid leave according to Art. 176 LC and to the void by prescription of the entitlement to use it as per Art. 176a LC. Special attention is paid to the possibility of postponement of unused annual paid leave of more than 10 working days for the next calendar year upon request by the employee. The legal consequences of the void of the provided prescription period have been critically analyzed. The possibilities for postponement of the use of other paid leaves have been examined as well.

DISCURSUL JURIDIC. 0 INTRODUCERE. (I)

Author(s): Paul Vasilescu / Language(s): Romanian Issue: 3/2020

Researching the law, as a formal source of legal norms, seams incomplete without portraying the role and function of the discourse about the law itself. Two kinds of texts: the one of the law and another, about-the-law, compose a peculiar discourse (textual or not). We analyse this discourse to know if the law exists by itself, or if it exists only as some kind of law, adjectivated and described.

Правото на наследяване – няколко дискусионни въпроса

Author(s): Vassil Krumov Petrov / Language(s): Bulgarian Issue: 3/2014

Действие на правната система

Author(s): Vihar Kiskinov / Language(s): Bulgarian Issue: 4/2013

The article discusses the way in which legal system functions. A conceptual model of the functioning of the legal system is proposed and the consequences from the application of this model in legal science and legal education are outlined. The suggested conceptual model may be applied as a basis for developing a normative model of legal action in the virtual space, for example in e-government, e-justice, e-commerce. The author sets the goal of drafting a codifying act of legal action in the virtual environment.

Правният интерес и правният принцип в същността на понятието за правото

Author(s): Svetla Marinova / Language(s): Bulgarian Issue: 3/2013

Концептуални юридически конструкции

Author(s): Vihar Kiskinov / Language(s): Bulgarian Issue: 2/2013

The article considers some peculiarities of legal science and its methods, as well as the scientific and practical importance of the conceptual legal constructions. Their functions and relations with other legal structures are outlined. The relationships between conceptual structures and the legal system are clarified.

Към общата теория на юридическите актове

Author(s): Vihar Kiskinov / Language(s): Bulgarian Issue: 6/2012

The contemporary normative and doctrinal development of legal acts provides a sufficient basis for the development of a general theory of legal acts. New factors with practical relevance become important and they consider the form of the legal acts; the legal action in the virtual reality; the conversion of legal acts; the organization of legal acts; as well as the objects of legal regulation in the information society. The article discusses original theoretical arguments for the development of the proposed theory.

Правни норми и правни нормативни волеизявления

Author(s): Vihar Kiskinov / Language(s): Bulgarian Issue: 4/2012

In the information society there are new means of expression, media and forms of legal normative statements. Examples of such phenomena are presented. The issue of the legal nature of these developments is explored. The article distinguishes types of legal normative statements and makes comparisons between legal norms and legal statements. The aim is to determine generic features of both phenomena. Therefore, new types of legal normative statements are conceptualised, as well as distinctions and similarities between norms and normative statements. The analysis pays special attention to the view, that the form and ontology are qualities that have continued at higher levels of legal categories, representing the law of information society. The transition to these levels requires certain conditions which are established in this article.

Източниците на правото в действие – правосъдието между позитивизма и реализма

Author(s): Martin Belov / Language(s): Bulgarian Issue: 4/2012

The object of this article is the legal consciousness of the Bulgarian judges and state prosecutors with regard to the direct application of the EU law, the Constitution, the international treaties ratified by the Republic of Bulgaria as well as the jurisprudence of the Court of the EU and of the European Court of Human Rights in Strasbourg. The analysis is based on a sociological survey entitled „The Judiciary between the Law and the Facts“, which was accomplished by the Judicial Development Foundation. The article compares the theoretical postulates and the normative provisions pertaining to the normative hierarchy in Bulgaria under the 1991 Constitution with the way the Bulgarian magistrates perceive and apply it in their practice. Hence, the idea is to delimit the „law in books“ from the „law in action“ with respect to the sources of law posed on the highest levels of the normative pyramid. The article contains also an in-depth analysis of the reasons for the different groups of answers given by the magistrates.

Интересът в правото – обективни и субективни проявления

Author(s): Svetla Marinova / Language(s): Bulgarian Issue: 4/2012

Czesława Martyniaka krytyka normatywizmu Hansa Kelsena

Author(s): Mirosław Piotr Stochmal / Language(s): Polish Issue: 2/2020

The article aims to present a critique of Hans Kelsen’s pure theory of law by Czesław Martyniak and to present a “positive’ solution. Martyniak reduced his criticism of Kelsen’s normativism to three issues: 1) the uniformity of its philosophical foundations, 2) the force of applicable law, and 3) natural law. Martyniak’s critique of Kelsen’s concept of law shows two extremely different attitudes regarding the separation of the sphere of being and duty in the field of law made by I. Kant. Kelsen is an extreme supporter of the separation of Sein and Sollen, while Martyniak, on the contrary, assumes the coexistence and connection of these spheres. According to Martyniak, a mutual separation of the spheres of being and duty results with many absurd consequences on the basis of law and its theory. Martyniak’s critique of normativism remains close to Thomistic doctrine and is clearly inspired by the thoughts of Thomas Aquinas. However, it should be considered as a creative adaptation of Thomas ideas. It is debatable to what extent Czesław Martyniak’s criticism of Kelsen’s normativism is only of a historical value or could be considered timeless. It probably depends on the importance and “eternity” of the problems we take under our consideration, moreover, whether one is capable to work out their original solutions.