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The article presents the author’s views on the need for a substantial effort by the Bulgarian legal community to develop a mechanism for investigating the Prosecutor General, the President of the Supreme Court of Cassation, and the President of the Supreme Administrative Court in the Republic of Bulgaria. It analyzes the content of the 1898 Court Structure Act which was drafted by Dr. Konstantin Stoilov, the then Prime Minister of the Principality of Bulgaria. The paper also highlights its advantages and commends the legislative approach used to guarantee the independence of the judiciary. Furthermore, it submits a proposal for introducing, in the Constitution of the Republic of Bulgaria, a mechanism for holding the heads of the Prosecutor’s Office, the Supreme Court of Cassation, and the Supreme Administrative Court accountable in case of serious misconduct or systematic failure to perform their duties, as well as in the event of actions that undermine the prestige of the judiciary.
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In the article, by means of an analysis of the legislation adopted at the beginning of the Third Bulgarian State, a study has been carried out of the application of the principle of official beginning in the period 1879–1886, during which the state, administrative-territorial and judicial structure of the Principality of Bulgaria were established. The paper examines administrative proceedings for permitting the construction of private buildings and for determining taxes. It also traces the manifestation of the principle of official beginning in the establishment of violations and in the imposition of penalties by an administrative jurisdiction and by justices of the peace.
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In December 1931 a new crime, embezzlement, was incorporated into Austrian law. This was done retroactively although ex post facto penal laws had been considered highly objectionable since the late 18th century. This article analyzes how this idea was generally developed in legislation and jurisprudence as well as the discussion specific to the ex post facto law of 1931.
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In the present study we examine historical and philosophical aspects of the law of ancient Cyprus from the foundation of the Kingdoms to their abolition and the transformation of Cyprus into a Roman province. From this study, useful, timeless and timely conclusions emerge for the broader perception and understanding of the concepts of ethics, justice, good law-making and law in general.The analysis includes public law, private law and criminal law of Ancient Cypriot Kingdoms. Moreover, there is an analysis of philosophical aspects of Ancient Cyprus which was similar to Ancient Greek philosophy influenced the respective laws.
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Abduction was considered a way to access marriage in the ancient world. Even if it wasn’t lawful, Mythology leaves us traces of this conduct, which was acceptable in Roman society when the kidnapped woman´s consent was present. Constantine, for reasons that we can only suppose harshly prohibited this practice, punishing it with the death of all those involved (even the raped woman). Its regulation went back to the Middle Ages but it was modulated, accepting the remission of the sentence in case of agreement between the parties. This way, a private crime was established in modern times which allowed the woman to take action against the abductor unless they married, thus forcing him to fulfil his marriage promises.
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Following the Second Vienna Award, in possession of the general authorisation of the Parliament, the Hungarian Royal Government adopted several decrees in order to extend the scope of Hungarian private law to the regions concerned. At first the scope of the law of real estate was extended by Decree No. 1440/1941. In Section 6 the legislator provided the right for those who alienated their immovable properties during the period of the Romanian supremacy to request in integrum restitutio, in a measure through the deletion of the current owner’s right of ownership. The court could also uphold the application if the transaction concluded under a compulsive action of a Romanian authority threatening with damage and serving the interests of the party that acquired the right or other official direct or indirect coercion or the threat of procuring it. After the analysis of the available judgments found in the Hungarian National Archives, it is ascertainable that the courts did not interpret the above-mentioned conditions consistently, therefore they could not always choose the appropriate one of them. Despite that, cancellation from land registry was ordered in most cases in which the owner was forced to alienate his/her immovable property under some kind of duress or coercion of an authority. Although the Decree was in force until the Romanian reoccupation and the system of private property was altered extremely in the communist regime, the lessons of the judicial practice of the discussed decree should get attention.
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Human experiments during the national socialist and communist eras remind us that medical research involving human subjects should have legal limitations. Nowadays, in medical malpractice cases, instead of simple medical consent, the informed consent of the patient or a proxy is required to exculpate the health care provider sub judice. The origin of these types of medical consent is discussed with special regard to their development before and during the twentieth century. Simple medical consent appeared in England in the Slater v. Baker and Stapleton case of 1767. The legal history of medical consent dates back to at least the eighteenth century, although informed consent arose as late as in the Nuremberg Code and was literally called “informed consent” in the Salgo v. Leland Stanford Jr University Board of Trustees case of 1957 in the US. Despite the international rules of informed consent in effect in medical research involving human subjects and in health care provision, we still find countries with medico-legal cultures differing from Western norms. For example, the Confucian style of informed consent in China, involving the family’s role in granting or declining informed consent, sometimes collides with the expectations of the Food and Drug Administration in the US or those of the European Medicines Agency in the EU. Moving different medico-legal cultures closer to each other should be an important objective of both international lawmakers and national legislators.
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vThis entry will deal with the history of competition law, including the first substantive competition law of Hungary, i.e Article V of 1923, which contained provisions regarding unfair competition. Currently, unfair competition is the subject of competition law, one of the branches of economic law, which contains regulations regarding the protection of economic competition and the prevention of consumer detriment. The purpose of Article V of 1923 was to offer general protection against any form of unfair competition.However, the description of each provision of the Article and the detailed demonstration and investigation of their practical implementation is not the topic of this entry. The present paper will specifically focus on the arbitral tribunals of the Chamber and the practice of the jury since the fact that the duty and practice of these two bodies were highly significant for the application of the law in that era can be clearly concluded from the summary of research results.
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The promise of reward (Auslobung) is a unique legal institution of copyright and civil law, accepted and widely used in different areas of life for centuries. The promise of reward differs from traditional contracts, because it is defined as a unilateral legal relationship and it affects uses of copyright protected works. This paper analyses how the promise of reward appeared in Roman and Medieval Law, how it was used in practice in Hungarian cultural life in the 19th century and how Hungarian jurisprudence accepted it as a valid matter of fact that generates obligations. The study finally presents how regulations on promise of reward was drafted and regulated in Hungarian legal regulations in the 20th century.
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This article aims to expose a characteristic procedural figure of the Kingdom of Aragón (Spain), a peculiarity within the strict medieval legal codes whose foundation was extended to other territories almost a century after its creation, with close links to Habeas Corpus Act. Its use produced controversial situations at certain times that led to reprisals and legal and political reforms in Aragon and in the judicial institution of ‘Justicia de Aragón’. This work aims to make known the peculiarities of this procedural figure, as well as those of the institution of ‘Justicia’, one of the oldest legal institutions in force today around the world, also mentioning to the nuances between ‘Derecho de Manifestación’ and the Habeas Corpus Act. A deductive and descriptive method is employed in order to show a general overview prior to discuss each particular topic.
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Family law is an important part of the civil law. Since the Roman Law this continues to be important part of this field. With the analysis of the paper the differences and similarities of norms from Scanderbeg, Lekë Dukagjini and Dibra Canon are underlined and emphasized. Paper covers and analysis the norms of historical law and customs through interpretation also positive norms of the countries where Albanian population lives. Engagement, marriage, the rights and duties of spouses during the marriage as regulated by the codexes through the history are analyzed as well as the disposal from sheria along with the rights and duties of spouses based on the positive law, for comparative reasons. Engagement is the first initiative before the marriage is concluded. Marriage was concluded after the engagement and it lasted until the death of spouses. The rights between spouses were always different where husband had more rights related to his wife. There were cases when he had the possibility to even kill his wife if the loyalty was not respected and also to divorce whenever he found it useful.
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The concept of contractual permanence (la pérennité contractuelle) was developed by Anne-Sophie Lavefve Laborderie in the field of contract law in the French legal system, as a tool that uses both the resources of positive contract law and the aspirations of the general contract theory to answer a double requirement: to maintain the contract in a sustainable and effective way in its economic environment and to maintain the quality of the interpersonal link between the parties of the contract, based on a mutual trust that must exist not only before or at the time of conclusion of the contract, but throughout the contract as well. Starting from the definition of the concept of contractual permanence, the author proposes a vision that goes beyond the scope of special contracts, drilling in the area of general contract theory for legal means to meet the two requirements for any contract, identifying technical and ethical tools for this purpose. From the anchors elaborated in French law, I will verify the extent to which the conceptual framework elaborated by Anne-Sophie Lavefve Laborderie finds its utility in Romanian law, both as a theoretical construct and through various applications of the principle in the general contract theory.
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The research objective of the study focuses on the functioning of the escheat law within cities. The research, although undertaken in a limited chronological scope, may contribute to the introduction of an issue that has not yet been recognized. The subject of the findings are the detailed issues of the functioning of the escheat law in former Poland, in particular the implementation of the monarch’s prerogative in the light of its limitations imposed in the parliamentary constitutions, the property scope of the escheat law and the issue of the participation of local royal state authorities, i.e. the starost’s office and local (municipal) government authorities, in the execution of the monarch’s decisions. Apart from persons appointed to the inheritance by virtue of law or will, the monarch could also participate in the inheritance proceedings. A heirless or testamentless inheritance fell to the king who, under the law of the escheat (ius caducum), embraced such an inheritance, which was then known in Poland as the “puścizna”. The ruler’s powers in the field of ius caducum were limited by the parliamentary constitutions requiring the king to grant noble goods acquired under the escheat law only to distinguished persons from among the nobility. These restrictions did not apply to the king’s administration and disposal of the bourgeois escheat goods. The process of granting by the king the caduceus estates of the burghers to the nobility are presented on the basis of royal documents concerning the inheritance of Lublin residents passing down to the nobility in the first quarter of the 17th century.
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The publication aims to present the practise of application of the so called March Constitution (passed in march 1921 by the parliament of the Polish Second Republic), which come to power as a result of the coup d’état of May 1926. The Sanacja camp’s leader, Józef Pilsudski evaluated march constitution negatively, as it created parliamentary supremacy in state authority system. In the introduction to the publication, an amendment to the march constitution of 2 August 1926, which strengthened the competences of the executive authorities, was presented. The precedents were formally in line with the literal wording of the provisions of the March Constitution, but in practise they contradicted its fundamental principles. Precedents were the main weapon in the battle conducted by Józef Piłsudski against the Sejm, which was in opposition to the Sanation authorities. The practice of shortening parliamentary sessions would lead to a significant limitation of the Sejm’s activity in favour of law-making by the President’s decrees. The last of a series of constitutional precedents of the Sanacja camp was used to adopt a new constitution contrary to the provisions of the March Constitution. The April Constitution of 1935 officially confirmed the system of authoritarian rule of the Sanacja camp.
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The article aims to examine how the rebus sic stantibus clause (Article 269 of the Code of Obligations) was interpreted by Polish (non-German) courts in the General Government. The legal theses issued by these courts will be examined. It was an institution that was used to unify the jurisprudence, regarding the liquidation of the Supreme Court. The period of war and occupation was an extraordinary situation, that undoubtedly influenced the contractual relations between the parties. In the Code of obligations of 1933, the Polish legislator introduced the rebus sic stantibus clause, which allowed for judicial interference in contractual relations in the event of extraordinary accidents. It is interesting how the legal order of the General Government reacted to these circumstances. The paper uses archival sources, in which legal theses of Polish (non-German) courts, regarding the issue of the article, were found. Legal theses were not officially published, hence the need to select and develop archival material. A review of the most significant dogmatic-legal and historical-legal literature on the issue of the rebus sic stantibus clause is also presented in the paper. The next problem discussed will be whether Polish (non-German) courts complied with the conditions of application of Art. 269 of the Code of Obligations, including those developed by pre-war jurisprudence and doctrine. The problem is what, in the light of the jurisprudence, under the conditions of occupation, was meant by „extraordinary accidents”, whether the courts interpreted this notion narrowly or broadly. The research hypothesis of the article assumes that Polish (non-German) courts during the German occupation used the rebus sic stantibus clause only after meeting the conditions specified by the legal order.
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Presented in a historical context, the document of 1577 reflects the last phase of the nobility’s drive to establish a supreme court. Previously, the court was the prerogative of the king, who examined cases from across the state during the sessions of the diet. This was inefficient. The ever-increasing backlog of pending appeals caused dissatisfaction among the nobility. Disputes and discussions revolved around its form (central authority – the Tribunal, or a decentralized form – ultimae instantiae courts), its composition and method of selecting judges, as well as its scope of authority. The Podlasie province, newly incorporated (in 1569) into the Polish Crown, participated in the process, uniting its forces with the Sandomierz and Lublin provinces at the forefront of the battle for the court of appeal. The decentralized form of the court, described in the document, was treated as a temporary institution. Also, it was intended as a way to put pressure on the king and the parliament to establish a central court of appeal. In the course of these activities, the nobility of Podlasie led to the consolidation of the fourth assembly (Polish: sejmik), a provincial one (in addition to the existing three assemblies (Polish: sejmiki ziemskie,). The 1578 Sejm resolution on the establishment of the Crown Court met the claims of the nobility of the Podlasie province (as well as from other provinces) stated in the document. The supreme court was established. At the same time, this decision led to the stabilization of the operation of the assembly of Podlasie. Its main function was the annual election of judges to the Tribunal. The resolution is a testimony to the political maturity and high standards of legal decorum of the Podlasie nobility.
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In this article, the author presents in detail the position of the main political parties regarding the constitutional issue of the Romanian Kingdom united in 1918 and the political controversies between these, on the topic of legitimacy of the party entitled to submit to the Parliament a draft of constitution, which would enshrine the new political realities of the Romanian state, following the union of the old Romanian provinces with the Romanian Kingdom at the end of the First World War. As it is well known, during the period 1919–1922 several preliminary drafts of constitution were drawn up, which gave rise to lively public and parliamentary debates, in which it took part, especially, the National Liberal Party, the National Party of Transylvania1 and the Peasants’ Party, each of them considering themselves entitled to promote their own preliminary draft of constitution, which attracted the categorical rejection of the others. Although the political controversies between the political parties had as their object the preliminary drafts of constitution, the real adversity between the parties started from their different visions regarding the future development, as a country project, of Romania, the Liberal Party continuing to promote the idea of an administration based on the principle of centralization and on the authority of the central government, while the National Party was more attracted to the idea of a provincial autonomy.The author does not consider that the principles of the constitutional democracy and of the European-style parliamentarism, borrowed in 1866 and revived in 1917 and 1923, were „compatible”, in the interwar period, with an electoral system corrupted even by the actions of the Crown and with an executive strengthened and personalized by the authority of the prime minister.The author analyzes the content of the preliminary drafts of constitution elaborated in the era and concludes that the political parties of that time failed to overcome the system limits of the naive parliamentarism existing at that time. Although the legitimate unification of the country through the sovereign acts of union of the old Romanian provinces with the Romanian Kingdom did not surprise the political class, neither the Parliament, nor the governments that came to power immediately after 1918, neither King Ferdinand, nor the leaders of the political parties knew or were able to face the economic, social, national and political challenges of the Great Union and to offer constitutional and legislative solutions to overcome them. Therefore, invoking as well the constitutional provisions from 1923 as a source of reflection for the constitutional thinking from 1991 is not completely unjustified.
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This article discusses Rafał Lemkin’s historical statements through the prism of the category of universal history. Lemkin is the author of an unfinished book which was to present the history of mass violence on all continents from antiquity to the recent times. He also wrote numerous commentaries, scattered across various works, where he compared past and contemporary violence using the concept of genocide. These statements are connected and ordered by the concept of universal history, which refers to the esteemed tradition of practicing historiography that began to develop in the 16th century. Driven by the idea of universalism, that approach based on the belief that there was only one history shared by all humankind. That universal history includes only the phenomena that affected the present shape of the world, has a center (Europe), can judge the past, and, last but not least, is expressed in the form of a coherent comprehensive story, the sense of which is progress. The category of universal history makes it possible to ask Lemkin’s writings new questions, to supplement our knowledge about his intellectual biography and his definition of the concept of genocide by bringing up questions such as relations between Europe and non-European countries, the idea of progress, the definition of humankind, and the genesis of international law.
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The teaching of Father Michał Sopoćko which concerns the legal regulations of marriage remains highly relevant. One of the most important basis of functioning a family is establishing the property security. The Polish legal regulations have evolved over the years, we have witnessed various structures of the statutory matrimonial property regimes. Nowadays, at the moment of contracting marriage the spouses establish the community property (matrimonial joint property) which complies a subordinate role for marriage. To strengthen the protective function of the regime it is necessary to obtain the consent of the other spouse for any statutory legal actions.
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