Review of the Principles of Proprietary Rights in the Legal System of the People’s Republic of China: Ukrainian Civilian’s Perspective

Author(s): Oleh Ilkiv / Language(s): English Issue: 4/2022

The article analyses the basic principles of property law in Ukraine and the legal system of the PRC in the conditions of active reform of private law according to international standards. Based on the analysis of approaches prevailing in modem Chinese jurisprudence, there is proposed own view on the system of principles of property law. The changes that have taken place during all the years of China’s Independence, which addressed many fundamental issues, including the legal regulation of property, are analyzed. The article describes many principles, so it should be noted that not all of them are directly related to property and proprietary rights because the latter concerns the legal status of private law, but in no way means equality of all types and forms of ownership. The paper explains different approaches to property treatment determined by the influence of German law. In modern conditions, Chinese law can be attributed to continental law, but along with them, there are many features highlighting its specific nature: the availability of normative legal acts (especially laws, codes); the presence of traditional legal norms and religious and ethical values in some areas of public relations; fixation of philosophical and traditional concepts, principles in legal understanding, legal norms, and other elements of the legal system; dualism of the system (existence of legislation and traditional norms). Property law is associated with many other problems to be solved due to the rapid pace of economic growth, innovation policy in China, the virtualization of business. Therefore, there is the problem of recognizing virtual property, caused by the need to regulate the rights to information, domain names, websites, online databases, treasures and loans used in online games, and so on.

Aspecte de drept comparat privind omorul săvârșit în stare de afect – experiența Republicii Federative Germania şi a Federației Ruse

Author(s): Mihai Teterea / Language(s): Romanian Issue: 2/2023

Murder committed in the heat of passion is a crime that arouses increased interest both from the theorists and from the perspective of national judicial practice. Or, the criminal offence involves great complexity, being determined by the interpretation of the phrase „heat of passion”. The difficulties of the crime analyzed are also determined by the analysis of the multitude of circumstances that determined the cause of this emotional disturbance and its duration. The problem presented above constitutes one of the most difficult problems of criminal law, because it is not always easy to determine the presence of the physiological heat of passion and to distinguish from the pathological heat of passion. In order to offer a modest contribution to the analysis of this criminal offence, I resorted to the analysis of the similarities and differences between the provisions of art. 146 of the Criminal Code of the Republic of Moldova and the corresponding norms from the criminal laws of other states such as: Germany and the Russian Federation.

Elemente de drept penal comparat privind infracțiunea de divulgare a secretului de stat

Author(s): Alexandru Gaina / Language(s): English,Romanian Issue: 15/2022

The protection of state classified information in areas of legitimate state interest (national defense and security, economics, science and technology, foreign relations, etc.) is of particular importance, as its unauthorized disclosure is likely to cause considerable damage of the capabilities and / or security of any state.This article has conducted a comparative study of criminal liability for the offense of disclosing state secrets in the light of criminal law to the Member States of the European Union, to countries within the Commonwealth of Independent States and to other foreign countries. The study addressed the ways of compromising and disclosing intelligence, as well as the categories of criminal liability, provided for such criminal acts.

Infracțiunea de dezordini în masă în legislațiile penale ale statelor membre CSI

Author(s): Ana-Maria Chepestru / Language(s): English,Romanian Issue: 17/2023

At the contemporary stage, mass disorders unbalance internal situations in many countries. Each state has its own system of law, which consists from a variety of legal norms. In the Republic of Moldova, the system of law is progressing in a marked and rapid way, which generates a detailed approach to the strict observance of fundamental human rights and freedoms. National security and public order is a priority and manifests itself distinctly within each state. This paper aims to make a comparative study of the crime of mass disorder at national and international level, highlighting the provisions of the criminal legislation of the Commonwealth of Independent States in relation to the criminal legislation of the Republic of Moldova.

THE ROLE OF ‘GREEN’ COURTS IN SHAPING ENVIRONMENTAL JUSTICE IN INDIA AND NEW ZEALAND

Author(s): Samanta Kowalska / Language(s): English Issue: 3/2023

The depreciation of values, combined with the expansion of agriculture, industry and the economy, results in the erosion of existing protection mechanisms, as well as commodificationand dominance of economic factors. The increasing degradation of the natural environmentreveals an increasing number of areas requiring urgent and coordinated protection. The aimof the article is to present the innovative concept of green courts, which are creating a newarchitecture of modern environmental law. In the considerations, it is indicated that ‘green’courts at a national level open the way to formulate new legal institutions, facilitate moreeffective the enforcement of environmental law, and solve legal disputes with alternativeadjudicative processes. The article discusses environmental justice based on the example ofIndia and New Zealand, which are among the first countries in the world to have developedan innovative judicial structure and environmental case law. The dogmatic method playsan essential role in the analysis of legal norms concerning the protection of environment, aswell as in determining their content and scope. The source materials originate from variouslegal orders, and diverse cultural and geographical regions. Therefore, in order to discuss theindicated issues, it is necessary to use the comparative method, and thus complete the argu-ments of a dogmatic and legal nature. In order to present the origins and evolution of law inthe scope concerning ‘green’ courts, the historical and legal method is used (temporal retro-spection). The considerations emphasize the role of specialist ‘green’ courts in maintaininga balance between the economy, the development of society, and protecting the environmentalwellbeing by shifting the focus of jurisprudence to the environmental domain. The articlehighlights the role of the application and interpretation of environmental norms from an ethicaland intergenerational perspective.

OSOBA PRAWNA JAKO CZŁONEK ORGANU ZARZĄDZAJĄCEGO SPÓŁKI W WYBRANYCH SYSTEMACH PRAWNYCH

Author(s): Filip Golędzinowski / Language(s): Polish Issue: 4/2023

The article discusses the issue of regulations governing the roles of members in the manage-ment bodies of companies. The rationale for conducting the research was that European countrieshave not adopted a uniform model regarding the participation of legal entities in the manage-ment bodies of companies. An unsuccessful attempt at such regulation was the Fifth Directive onCompanies. The research aimed to compare selected legal systems and emphasize the potentialconsequences of allowing legal entities to hold positions on the management board, as well as toaddress the question of whether the standardization of regulations pertaining to this issue is nec-essary at the European level. This analysis was primarily conducted using the legal dogmatic andcomparative legal methods. The research demonstrated that in some legal systems the presenceof a legal entity in the management body of a company is widely permissible – for instance, this isallowed by the French, Belgian, and British legislators, although the legislation of these countriesis not uniform in this aspect. On the other hand, in Germany and Poland the participation of legalentities as members of the management board is prohibited by the law itself. The author formu-lates the thesis that there are no specific grounds for harmonizing the described mechanism atthe European level. The conclusions drawn can be deemed significant in the context of a potentialamendment to the Polish Commercial Companies Code, which could reignite the discussion aboutthe possibility of introducing regulations concerning the capacity of legal entities to hold positionsin a company’s management bodies.

Marie Leonte, L’institutionnalisation du lobbying: États-Unis et Union Européenne. Étude comparative, Editura C.H. Beck, Bucureşti, 2022, 544 pagini

Author(s): Radu Carp / Language(s): Romanian Issue: 02/2024

Review of: Marie Leonte, L’institutionnalisation du lobbying: États-Unis et Union Européenne. Étude comparative

Rozwój cywilnego paktu solidarności w prawie francuskim na tle innych państw europejskich

Author(s): Kinga Mozgiel-Wiecha / Language(s): Polish Issue: 2/2023

The concept of a relationship between two people has begun to change over the years in French legislation. In the 1990s, more and more European countries responded with appropriate regulations to the demands of same-sex couples who wanted to enter into formal and legally accepted unions. At that time, French legislation indicated that both the concept of marriage and family were reserved for heterosexual couples. However, the need to legalize same-sex unions was noted, and the creation of the civil solidarity pact (Pacte civil de solidarité, PACS) in 1999 was a response to social needs. It allowed the persons who entered into it to inherit from each other and to be jointly responsible for their debts. The introduction of the civil solidarity pact has also raised the question of what a rela- tionship between two people is: a contract or a form of institution.

A COMPARATIVE ANALYSIS OF THE LEGAL TERM “AGE OF MAJORITY” IN JAPAN AND IN FRANCE

Author(s): YUKI HORIE / Language(s): English Issue: 24/2023

The age of majority in Japan was lowered from 20 to 18 on 1 April 2022 when a newly revised Civil Code came into effect. Japanese young people 18 years of age and older will now be able to make their own life choices and decisions in various social situations. At the same time, they will also have the responsibilities of adults. Various opinion polls, however, show a widespread lack of concrete understanding of people’s rights and responsibilities in Japan. This paper explores the meaning of the term 成年 seinen (age of majority) by com- paring the case of France on the basis of the French Civil Code in order to shed light on the legal and common meaning of “attaining adulthood.”

O ZNIESŁAWIENIU ZMARŁYCH W PRAWIE JAPOŃSKIM

Author(s): Michał Najman / Language(s): Polish Issue: 24/2023

Japan is considered the country with the most lenient laws restricting freedom of speech. However, this state of affairs has recently changed due to the suicide of a celebrity caused by hate speech directed at her mainly through social media. Nevertheless, the actual sanc- tions for violation of reputation (honor) in Japanese law are less strict compared to Euro- pean regulations because of historical, social, and cultural conditions. Extra-legal norms that have been developed allow society to function properly even without requiring the law to interfere in this sphere of private life. The purpose of this article is to indicate the fac- tors affecting freedom of speech, using the example of the posthumous protection of the reputation of the deceased in Japanese law. This example provides opportunities to answer questions about why sometimes a reputation is also legally protected after death, and what conclusions should be drawn from this for other legislations.

LAW IN IMPERIAL CHINA AS PRESENTED IN THE RESEARCH OF FATHER PROFESSOR ANTONI KOść SVD

Author(s): Lech Buczek / Language(s): English Issue: 24/2023

The article concerns Chinese law in the imperial period as presented in the research of Father Professor Antoni Kość SVD. The philosophical foundations of Chinese law are analysed mainly from the point of view of Confucianism and Legalism. In order to show the particular character of Chinese law, an outline of the assumptions of other philosophi- cal and religious schools is also presented. The subject of the article is the preserved legal codes, the system of state authorities and taxes, the structure of the social hierarchy, and individual branches of law. The aim of the article is to show the changing nature of the Chinese legal system over the course of successive Chinese dynasties.The article attempts to answer the question as to which of the foundations of Chinese philosophy have influenced Chinese law to the greatest extent. The main research methods used are historical and legal analysis.

How to understand the principle of non- splitting of shares in Polish and German company law – a tale of historical equivalence and comparative importance

Author(s): Katarzyna Szczepańska / Language(s): English Issue: 15/2023

The article examines the understanding of the principle of non-split-ting, showcasing the historical and comparative equivalence of the Germanand Polish legal systems. It concerns the non-splitting of shares in Polish andGerman law, as applied to the limited liability company and the non-publicjoint-stock company. It is aimed at conceptualizing in a comparative mannerthe theoretical model of non-splitting, and encompasses discussions about itsnature, content, and normative bases for its binding force. Under Polish lawtwo different understandings of the principle of non-splitting of shares are dis-tinguished: the principle of non-splitting in the strict sense, and the principleof non-splitting in the broad sense. It is argued that German law uses the con-cept of prohibition of splitting, while in the Polish legal system this concepthas been further developed and is to be perceived as a principle of non-splittingof shares that is to be classified as general principle of company law.

Change of Parties in the New Hungarian Civil Code from a Comparative Perspective

Author(s): Péter Gárdos / Language(s): English Issue: 5/2023

The Hungarian Civil Code introduced changes regarding the change of parties. The paper argues that comparative law helped the Hungarian legislator to introduce new rules that address relevant market needs. The author shows how the clarification of the system of the transfer of receivables opened up new opportunities for the parties and how the treatment of non-assignment clauses changed in light of legislative changes in several European countries. It is argued that the new Hungarian Civil Code found the right balance between the interests of the debtor and the assignor. The second part of the article explains that the New Civil Code introduced a significant change through the rule on free transferability of rights. The third part presents how the New Civil Code introduced rules on the transfer of contracts, following the solutions of several European countries and international unification instruments, and explains the challenges posed by these rules.codification; change of parties; non-assignment clause; transfer of receivables; debtor; assignor; comparative law

Administraţia publică centrală de specialitate în context european: un model pentru administraţia din România

Author(s): Claudiu George Pupazan / Language(s): Romanian Issue: 1/2024

The presentation aims to answer the following question: what would be the optimal solutions that should be implemented in our country to make the activity of agencies more efficient in the context of the need to provide public services of increasingly high complexity and quality? Based on the experiences of other states, the historical context and the current social developments, we will identify possible solutions, but we will also take into account the expectations of the citizens in relation to the reform in this sector.

The right to the environment? Article 4(1) of the Polish Environmental Protection Law Act from a combined comparative law and Polish-English legal translation perspective

Author(s): Przemysław Kusik / Language(s): English Issue: 56/2023

A human right to the environment is increasingly recognised in both domestic and international law. Also in Polish legal scholarship, there is a discussion over the possibility of deriving a right to the environment from the Constitution or ordinary statutes, including Article 4(1) of the Environmental Protection Law Act. The existing English translations of its opening words, and specifically the term powszechne korzystanie ze środowiska, appear to mirror the legal controversy. Compared to Poland, the major common law jurisdictions, i.e. England and the USA, show multiple differences in respect of the public’s enjoyment of the environment. In addition to a distinct legal mentalité, grounded on a case-by-case approach, negative freedoms and remedies thinking, both jurisdictions are characterised by considerable private ownership of natural resources like rivers and forests. In view of this legal and translation problem, the present paper seeks to employ comparative law methodology to establish an acceptable English translation equivalent of the term powszechne korzystanie ze środowiska. The analysis is also an attempt to go beyond the ways in which the use of comparative law in legal translation is typically perceived, i.e., beyond functionalism, beyond micorcomparison and beyond conceptual analysis.

СЪЗДАВАНЕ НА БЪЛГАРСКАТА ГРУПА КЪМ АСОЦИАЦИЯТА НА ПРИЯТЕЛИТЕ НА ФРЕНСКАТА ПРАВНА КУЛТУРА

Author(s): Jordan Pangev / Language(s): Bulgarian Issue: 3/2023

MENTAL INCAPACITY DEFENSE IN ANGLO-AMERICAN LAW AND THE DEFENDANT’S ABILITY TO APPRECIATE CRIMINALITY OF HIS CONDUCT

Author(s): Vukan Slavković / Language(s): English Issue: 101/2023

The purpose of this study is to provide a more complete account of the significant judicial innovations in the handling of family murder cases, with comparable interest in the subject of insanity defense. In order to analyze the determinants of reactions to the trials, the author also explored American federal and State law concerning the verdicts. Although the M’Naghten Rule was the dominant test, after the publication of the "Model Penal Code", every American state that seriously considered incapacity defense reform legislatively or judicially adopted the MPC test. According to 18 U. S. C. §17, a federal defendant has had to prove that the “severe” mental disease made him “unable to appreciate the nature and quality or the wrongfulness of his acts”. Until 2020, state supreme courts disagreed on the constitutionality of abolishing the insanity defense. Several states had abolished or attempted to abolish the traditional, affirmative insanity defense and replaced it with a mens rea approach. The United States Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment does not require the States to adopt an insanity defense based on a defendant’s ability to understand that his crime was morally wrong.

THE AUTONOMY OF THE EU’S LEGAL ORDER AND ITS DIMENSIONS

Author(s): Sorina Doroga / Language(s): English Issue: 4/2023

The concept of autonomy lies at the core of the distinctiveness of European Union law and of the EU’s legal order. While the EU system is a creation drawing features from both an international organization and a federal state, the European Court of Justice has strongly proclaimed in its case law the sui generis nature of the Union as a supranational entity, relying heavily on autonomy as a key principle of the Union’s legal order. Without purporting to cover the full spectrum of possible analytical approaches, this paper examines some of the conceptions regarding the nature and dichotomies characterizing the autonomy of EU law, which might prove helpful in mapping the evolution of the notion into an ‘existential’ principle of the EU. The paper also discusses the internal and external dimensions of autonomy, with an emphasis on the latter, illustrating the evolution of external perceptions and the EU’s dynamics on the international plane.

Viitorul profesiei de avocat (I). Despre non-avocatură: perspectiva britanică și cea americană; „păcatele” ChatGPT în avocatură

Author(s): Dan Sebastian Chertes,Tudor Colțan / Language(s): Romanian Issue: 1/2024

The article, the first in a series of several, deals with the future of the legal profession, highlighting two particular features: the challenges of non-lawyering and the use of chatGPT by lawyers without understanding how it works.

DOMAŠAJ KLAUZULE „BEZ REGRESA“ U KONTEKSTU FORFETIRANJA MENIČNOPRAVNOG POTRAŽIVANJA

Author(s): Milena Momčilov / Language(s): Serbian Issue: 2/2024

As an export financing technique, forfaiting is most often reflected as a transfer of a bill of exchange or promissory note. One of the key features of forfaiting is the exclusion of liability of the transferor (seller of receivables) for the collection of receivables. In a situation where the object of the forfaiting is a claim contained in the bill or note, the exclusion of the transferor’s liability for the collection of receivables is ensured by entering a clause “without recourse”. The provisions regulating the bills of exchange and promissory notes differ in terms of the validity of the “without recourse” clause. The exclusion of recourse liability for bill of exchange (promissory note) in some legal systems is reserved for a wider range of recourse debtors, while in some legal systems the circle of obligors that can use this clause is narrower. The scope of the “without recourse” clause significantly affects the technique of creating a bill/note for the purpose of forfaiting. Therefore, the author in this paper analyzes the scope of the aforementioned clause in certain legal systems in the context of forfaiting the bill/note. The author’s idea is to notice what are the shortcomings of current solutions of comparative legal systems, and to examine how they are reflected in the forfaiting contract. The aim of the paper is also reflected in the author’s efforts to find a practical solution for eliminating the negative consequences of the limited scope of the “without recourse” clause in the current legal environment. Finally, the idea of the author consists in finding an adequate proposal for the pro futuro improvement of the current state of both domestic and comparative legislation, all with the aim of encouraging further growth and attractiveness of forfaiting.