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CULTURAL (UN)AWARENESS IN THE ACQUISITION OF LEGAL TERMINOLOGY: OUTCOMES AND SOLUTIONS

Author(s): Marina-Cristiana Rotaru / Language(s): English Issue: 1/2020

The aim of this paper is to highlight the role of cultural awareness in achieving accurate translations by focusing on the analysis of several culture-bound legal terms of the English and Welsh legal system. These specific terms include items that refer to the court systemin England and Wales, such as names of various key positions in the judiciary branch, terms used in court procedures and criminal procedure, or advocacy terms. A parallel with Romania is introduced in order to highlight the similarities and differences between the English and Welsh legal system and the Romanian legal system. In spite of the contrast between the two legal systems, the translator can, if aware of cultural idiosyncrasies, provide correct translations that make apparently opaque terms explicit in the target language.

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THE ROLE OF THE JUDICIARY IN RECOGNIZING AND IMPLEMENTING INTERNATIONAL LAW: A COMPARATIVE ANALYSIS WITH SPECIAL REFERENCE TO SRI LANKA

Author(s): K.A.A.N. Thilakarathna / Language(s): English Issue: 2/2021

International law had had a profound impact and influence on the domestic legal system in the contemporary world. However, the status of international law within the domestic legal system is not properly defined in many of the jurisdictions including Sri Lanka. In the absence of such a constitutional provision, the judiciary as the last bastion of hope has a responsibility of interpreting domestic law in light of the international standards that have been agreed upon by the country through ratification of international treaties and those principles of customary international law that has become binding on the country. However, too much judicial activism could jeopardize the constitutional fundamentals of separation of powers and the rule of law. Therefore, this study argues that the best way to resolve this issue is by providing a constitutional provision for the role of the judiciary in the recognition and implementation of international law in a domestic context. Using a qualitative methodology with a comparative analysis of the constitutional provisions of the selected jurisdictions of India and South Africa a proposal is made for a constitutional provision for the judicial role in the recognition and implementation of international law in Sri Lanka. The results have revealed that a constitutional provision would help to advance the separation of powers and the rule of law and to well define the role of the judiciary in absorbing international treaty law to the domestic sphere, making the law more certain and predictable and upholding the rights and duties of individuals in a domestic context while fulfilling international obligations of a country under the domestic legal system.

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ГРЕШКАТА В РИМСКОТО ПРАВО СПОРЕД ФИЛИП ЛОТМАР И ИЗГУБЕНОТО МУ НАСЛЕДСТВО В ШВЕЙЦАРСКОТО ПРАВО

Author(s): Iole Fargnoli / Language(s): Bulgarian Issue: 2/2020

With comprehensive research on the error in all areas of law, Philipp Lotmar (1850-1922) aimed at solving the eternal question of the definition and effects of errors on the basis of the Roman sources, in particular to what extent the contract is binding in the event of a error – until today one of the core questions of private law. His work could have influenced the revision of the law of errors until 1911 in Switzerland in some aspects, if the publication of his work had taken place in time. He offered other solutions to the issue of dissent and error about the future. Lotmar would certainly have welcomed the most famous provision of Swiss law on errors, Art. 24 para. 4 CO, through which the external error can also become considerable.

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HISTORICAL – JURIDICAL KEYS ON THE ORIGIN OF THE CONCEPT OF ABUSE OF RIGHT

Author(s): Carmen Salcedo / Language(s): Bulgarian Issue: 2/2020

The non-existence in Roman Law of jurisprudential theories, specific terminology or legal provisions prohibiting the abuse of rihgt does not prevent us from affirming that surely, based on the general interest of peaceful coexistence and by application of principles of justice, good faith and equity, there were specific actions prohibited in defense of the concurrent rights of others that would lay the foundations on which the current doctrinal and normative conceptions regarding the theorizing and regulation of the abuse of rihgt are based.

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TESTAMENTARY FREEDOM AND THE 'GUALDENSE' OR SOCINI MEASURE OF CAUTION. BACKGROUND AND HISTORICAL DEVELOPMENT

Author(s): Maria del Pilar Perez Alvarez / Language(s): English Issue: 2/2020

Our study focuses on the measure known as the Socini caution, its background in Roman Law and its subsequent formulation and development until its codification, some records of its reception remaining in current Spanish Common Law. The Socini measure of caution consists in the testamentary provision granting the inheritor of the legitime, or 'forced heir', the choice between accepting the testator's disposition, leaving more than the lawful share of an inheritance but subjecting it to an encumbrance, or receiving only the strict 'portio legitima' and renouncing the excess. This precise concept of the caution is examined herein. This figure is on the borderline between testamentary freedom and respect for the 'portio legitima', or what is known as ‘the qualitative intangibility of the legitime’, which is tantamount to a restriction on testamentary freedom. Therefore, before analysing these testamentary cautions I shall briefly refer to the historical background and development of the legitime and its legal nature, in order to set the context for this study.

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ИЗРАЗИТЕ „RES PERIT DEBITORI“, „RES PERIT CREDITORI“ И „RES PERIT DOMINO“

Author(s): Patrick Wery / Language(s): Bulgarian Issue: 2/2020

Many Latin expressions and maxims are used in the legal literature dedicated to the Law of Obligations. But these expressions could not be always perceived literally and without any reserves. Some of these sentences are given a meaning far different from their literal interpretation. Others are redundant and do not add anything to what the legislation already provides. In its judgment of 5 May 1981 the Belgian Court of Cassation declared that 'the Latin maxim does not in itself constitute a general principle of law'. The article examines the Latin maxims "Res perit debitori", "Res perit creditori" and "Res perit domino", which the doctrine uses as principles to explain the theory of risk, which makes a difference between the contracts that transfer property on the one hand and those which do not fullfill such a transfer, as well as between the consequences of force majeure for the obligations of the debtor and between the contract itself.

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ВАРИАЦИИ ВЪРХУ "PACTA SUNT SERVАNDA". ОКОЛО И ИЗВЪН ФРЕНСКИЯ ГРАЖДАНСКИ КОДЕКС

Author(s): Pierre Jadoul / Language(s): Bulgarian Issue: 2/2020

Over the time, the experts spared no praise and competed for compliments to describe the French Civil Code entered into force on March 21st 1804. Nevertheless, on the bicentennial anniversary of this code the famous French lawyer Robert Badinter noted: „The most remarkable about the Civil Code today is its longevity rather than its content.” The article provides a brief overview of the process of creating of the French Civil Code, the preparatory actions and discussions, as well as their modern re-evaluation, mainly in connection with the general theory of the obligations and the principle of "Pacta sunt servаnda".

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DOLUS O CULPAE CAPAX. LA CAPACITÀ DI DELINQUERE DELL’IMPUBERE TRA CONTINUITÀ E DISCONTINUITÀ

Author(s): Mariateresa Carbone / Language(s): Italian Issue: 2/2020

The impubes’s delict laibility, in the classic period, is subordinated to being doli or culpae capax; two decemviral provisions, instead, established a less severe sanction respect to pubes in case of impubes’s criminal behavior regardless from assessment about his actual ability to commit crime. Some textual clues allow us to speculate the historical happening that determined this evolution whose goal stands as a fondament of our current regulations, where is expected also an age range characterized from absolute presuption not-imputability and a next one (that a recent proposal of law would tend to turn down, bringing it closer to the ages of pubertati proximi) where the imputability depends on the ability understanding and wanting of the subject.

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FROM FAS TO IUS AND THEIR ROLE IN TRADITIO IURIS ROMANI

Author(s): Cristina Pop / Language(s): English Issue: 2/2020

Among the numerous law systems known in history, the only one capable to develop a well-defined legal terminology, distinct in relation to the average, ordinary language, was the Roman law one. Even though in the ancient comprehension of the Quirites the laws would take a religious garb from both the point of view of their linguistic expression and from the point of view of their meaning, it was for the first time in history that the Romans created a unity of notions, able to transpose in a juridical language society's major interests. It was a fact also due to the general evolution from the antique fas to the exhaustive ius.

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КОРПОРАТИВНА ОТГОВОРНОСТ. ПОЛСКОТО ЧАСТНО ПРАВО И ЗАПАДНАТА ПРАВНА ТРАДИЦИЯ

Author(s): Grzegorz Blicharz / Language(s): Bulgarian Issue: 2/2020

The Polish legislator has extended the strict liability of entrepreneurs to in-clude cases of damages and injuries caused by conducting special business activity. It was justified by the principle cuius commodum eius periculum, cuius commodum eius damnum which was also invoked in the jurisprudence of the Polish Supreme Court. This principle, together with the similar principle of ubi emolumentum ibi onus, shows that strict liability is grounded in the principle of economic utility. Historical research, however, has shown that neither of these two justifications originates in Roman law. Although the prin-ciples are taken from Roman legal sources, they were used by Roman jurists in different contexts: in contractual obligations and in the law of succession, where they have their roots. The ancients also applied strict liability to certain types of entrepreneurs, yet with a different ratio: to limit the abuse of customer trust. The development of law shows that after centuries of the prevailing idea of fault liability, legislators are nowadays returning to strict liability in the case of entrepreneurs with a different kind of justification, recalling the fact that all types of liability were already present in Roman law.

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RECEPTION OF ROMAN LAW IN THE FIELD OF REGULAE IURIS

Author(s): María Etelvina De las Casas León / Language(s): English Issue: 2/2020

The Roman tradition begins with the studies of Bologna and continues until the present day. We understand that the reception of Roman Law in Europe is based on the Bologna School. In this work we will make a brief approach to the regulae iuris, many of them converted into general principles of law, through the reception of the same in our legal systems. These maxims contain a historical background that makes them guides and values that inform our legal systems: legal bases, criteria of interpretation or sources of law. No code completely broke with the Roman tradition.

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ПРИВИЛЕГИИ ЗА ВЕТЕРАНИТЕ ОТ ВОЙСКАТА В ИМПЕРАТОРСКАТА КОНСТИТУЦИЯ НА ЛИЦИНИЙ ОТ 10 ЮНИ 311 Г. И СЪВРЕМЕННОТО АДМИНИСТРАТИВНО ПРАВО

Author(s): Raina Nikolova / Language(s): Bulgarian Issue: 2/2020

The article reveals part of the content of Licinius' imperial constitution of June 10, 311. It discusses the administrative status of professional soldiers as a special category of civil servants. It also analyses the administrative status of war veterans in accordance with the current Bulgarian legislation and the Roman traditions, enshrined in it.

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РИМСКАТА ПРАВНА МИСЪЛ И ЕВРОПЕЙСКИТЕ ТРАДИЦИИ В „ПРИНЦИПИ НА РИМСКОТО ПРАВО“ НА ФРИЦ ШУЛЦ

Author(s): Fara Nasti / Language(s): Bulgarian Issue: 2/2020

In 1934, in Munich, Duncker und Humblot published the „Prinzipien des römischen Rechts. Vorlesungen“ by Fritz Schulz. A work of great importance in which Schulz collected the eleven lectures given in Berlin: the only ones he gave there before his exile. It must be considered in the context of legal historiography from 1920–1960 in the context of its scientific production. The content and ideas in „Prinzipien“ must not be forgotten. The book was written in difficult times in Germany before World War II and has strong political significance. This explains some of the author's choices in his attempt to consolidate the universal value of law based on the Roman legal tradition.

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ПРОВЕРКА ЗА ПЛАГИАТСТВО ПО ЗАКОНА ЗА РАЗВИТИЕ НА АКАДЕМИЧНИЯ СЪСТАВ ИЛИ ДОКАЗВАНЕ НА ПРЕСТЪПЛЕНИЕТО „ПЛАГИАТСТВО” ПО НАКАЗАТЕЛНИЯ КОДЕКС – ДОПУСТИМА ЛИ Е АЛТЕРНАТИВА ПО БЪЛГАРСКОТО ЗАКОНОДАТЕЛСТВО?

Author(s): Veselina Maneva / Language(s): Bulgarian Issue: 2/2020

The legal framework of plagiarism as a crime, finds its systematic place in Roman law. In the objective Bulgarian law, it is regulated by the first Penal Code in 1896. The current legal framework creates ambiguity regarding the application of the administrative provisions of the Academic Staff Development Act and the Penal Code. The article analyzes the provisions of the two normative acts, as well as the canceled Law on Scientific Degrees and Scientific Titles. The relevant procedures, the competence of the bodies and the consequences of the issued acts are considered. The conclusions justifiably raise the question: is this alternative acceptable?

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THE COMMON GOODS ADDRESSED TO THE COMMUNITY USE WITHIN THE FRAMEWORK OF THE COMMUNITY ADMINISTRATION OF THE LATIN-SABINE ROMAN REGNUM (753 BC – 617 BC)

Author(s): Diego Diez Palacios / Language(s): English Issue: 2/2020

The reality of what modern states know as public property is present in the historical, urban and state period of the latin-sabine regnum. In it, the material arrangement of these realities will possess certain elements that are configured as a fundamental end that enhances the birth of a new, in part, legal way of acting on the also novel figure where the relationship between community and common thing manifests determining features that they become the antecedent of the sanctioned legal regime of the res publicae who will have to wait until the 4th century BC to see the light showing itself in the legal systems of numerous European and Latin American countries as the foundation of their public goods for public use.

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Ако криминалните романи бяха реални наказателни казуси

Author(s): Ina Lozanova / Language(s): Bulgarian Issue: 3/2020

The current article aims to present a hypothetical review of some legal omissions in selected, reader-favorite crime novels. The material is based on legal principles which are common to states governed by the rule of law, and it would be useful to students of law and other academic courses. The presented cases in works of fiction have been analyzed from the standpoint of the acting Bulgarian penal law and Criminal Procedure Code.

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THE LEADERSHIP REQUIREMENT OF THE CRIME OF AGGRESSION UNDER THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

Author(s): Faruk H. Avdic / Language(s): English Issue: 3/2021

The subject of this analysis was the provisions of the Rome Statute of the International Criminal Court devoted to the leadership requirement of the crime of aggression. The crime in question is the successor of crimes against peace. This paper employed normative and formal dogmatic legal methods in analyzing the particulars of the leadership clause. Besides, this analysis also took into consideration the case-law of certain judicial bodies. This paper aimed to examine whether the leadership requirement of the crime of aggression has been properly constructed for the Statute. The main focus was on the meaning of the conditions stemming from the leadership clause that each perpetrator ought to fulfill to incur criminal responsibility for the crime of aggression. Additionally, this research addressed the criminal responsibility of public and private actors and the modes of participation in the crime in question. The article established that the leadership requirement concerning the crime of aggression has been aptly incorporated in the Statute since this requirement, at the same time, embraces the post World War Two standards concerning crimes against peace and the contemporary notion of aggression as one of the core crimes under international law.

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За авторството в популярната музика през погледа на Уил Стро

Author(s): Mihail Lukanov,Mihail Lukanov / Language(s): Bulgarian Issue: 10/2021

The article addresses a topic related to the complex problem of authorship in the field of popular music today, as well as the challenges of trying to highlight the ‘image’ of the author in the context of the joint and shared creative efforts involved in creating а final music product. The text analyses these issues through the interpretive optics of Professor Will Straw, a contemporary Canadian researcher in the field of media studies. The presented reflections are based on his commentary on the ‘diffused’ image of the author in popular music in view of certain specific developments in the second half of the 20th century.

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РИМСКАТА ИДЕЯ ЗА „ПЕРПЕТИУРАНЕ НА ЗАДЪЛЖЕНИЕТО“ И ПРОБЛЕМЪТ С ДОГОВОРНАТА ОТГОВОРНОСТ

Author(s): Riccardo Cardilli / Language(s): Bulgarian Issue: 1/2021

The perpetuatio obligationis is the result, in a terminology proper to the jurisprudence subsequent to the veteres, of a creative interpretation of the late-republican jurisprudence which will assume in the subsequent tradition the relevant qualification of constitution veteris. The terminological formulation may also have had a modernization in the writing of the Severian jurist Paul, but without altering its dogmatic meaning. It is an up-to-date expression of what was technically the effect of the constitutio veterum on the level of the claimant in the event of perishing of the thing object of the rem dare oportere for a cause attributable to the debtor. The veteres believed, that the persistence of actionability with condictio of the rem dare oportere was based precisely on the idea that rem dare oportere was perpetuated even though the due thing perished.

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ИЗВЪНРЕДНО ДОГОВОРНО ПРАВО ИЛИ КАК ДА УРЕДИМ ДОГОВОРНИТЕ ПРОБЛЕМИ ПО ВРЕМЕ НА ПАНДЕМИЯ

Author(s): Pascal Pichonnaz / Language(s): Bulgarian Issue: 1/2021

Despite the significant number of measures taken by the Swiss Federal Council (Government) in relation to the COVID-19 pandemic, problems regarding the economic balance between contracting parties have not been subject to specific interventions. The article points out that an individualistic approach, in particular through the rules of unforeseeability, is partly unsatisfactory in view of the systemic issues at stake and the risk that the burden of all additional individual actions represents for the judicial system as a whole. The author stresses the importance of a duty of renegotiation between the parties, based on the rules of good faith in business, the content of which must take into account a dynamic approach, inspired by historical experience. The article then suggests substantive and procedural rules for an extraordinary contract law to deal with systemic contractual imbalances. A relational approach to the contract, as well as a more solidarity-based conception of it, must lead to renegotiations and group settlements, which are relatively binding for the contracting parties, or even to solutions imposed by the authorities as a last resort.

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