Höchstgerichtsbarkeit in Deutschland im 19. und 20. Jahrhundert. Ein rechtshistorischer Rückblick

Author(s): Diemut Majer / Language(s): German Issue: 2/2015

Constitutional justice and its competences towards the political powers have been discussed since the 19th century in in Europe. Who controls the laws? A court or the legislative itself? In fact the idea that a court might tell the legislation what the constitution (and the law) is (so the Supreme Court of the US) was completely new. In Germany the “Paulskirchen­verfassung” of 1849 created such judicial controls by establishing a supreme court (Reichsgericht) with widespread competences (towards the federal and central powers) in the German “Reich”, inclusive the right of every citizen to sue the state before a court on the ground of illegal treatment. The German “Grundgesetz” (Constitution) of 1949 picked up this idea and created a constitutional court (Bundesverfassungsgericht) which became a model for many European constitutions. Where did this belief in the impartiality of a court come from? Not from historical facts, but from hopes in a neutral power. These hopes go back to the Medieval Ages, when the protection of the law (and the people / citizens) belonged to the most important rights and duties of the German Kings and of the Emperor – a right given to him by God himself. Day and night, so the sources tell, the German King Konrad II. (1024-1039) on horseback hastened through the vast Empire to punish the evil-doers and to reward the righteous ones. The priority of the law towards the political powers is the essence of the idea of the German “Rechtsstaat”. This idea is contrary to the thinking in many states, which do not want its parliaments controlled by a court.

Die Kompetenz zur Regelung des Militärstrafverfahrens in Österreich(-Ungarn)

Author(s): Christoph Schmetterer / Language(s): German Issue: 2/2015

The military criminal procedure rules in Austria (dating back to 1768) were quite old-fashioned by 1900. There were many attempts to reform criminal procedure after 1850. However it was not clear whether the emperor himself or the parliaments were competent to enact new rules. This article examines the arguments for both views.

Rituale Blutanklage in Ungarn im Jahre 1883

Author(s): István Stipta / Language(s): German Issue: 2/2015

This essay analyses the legal background of the blood libel process taken place in 1882-1883. It also gives an overview on the norms of Hungarian criminal process of that era and their prevail in the praxis. The paper examines each process phase, including the important momenta of the investigation, examination, accusation and the court litigation. It also follows the theoretical and practical deficiencies of the process. Furthermore, the paper searches for reasons that led to the ritual blood libel of medieval heritage in Hungary of the civil era.

Statutory Regulation of Capital Punishment in Hungary during the Horthy Era and World War II.

Author(s): Zoltán János Tóth / Language(s): English Issue: 2/2015

The present paper deals with the history of the normative regulation concerning capital punishment in Hungary between 1919–1944, that is, during the Horthy era. Right after the end of the Soviet Republic of Hungary, in August 1919, the legal system of the Hungarian Kingdom was reinstated. Capital punishment, however, remained general penalty not only in the military criminal procedure, but in the ordinary one as well. Besides these, from time to time, numerous martial law statutes stipulated that the death penalty could be applied in cases of various criminal offences, both in peacetime (mainly in 1921, 1924 and 1931–1932) and, particularly, wartime. The implementation of capital punishment, however, culminated in 1943 and 1944 when (that is, in the end of 1944) the statehood of Hungary collapsed.

The Institutional Framework and Methods of the Implementation of Soviet Legal Ideas in the Czechoslovakia and Hungary during Stalinism

Author(s): Iván Halász / Language(s): English Issue: 2/2015

The main topics of paper are the institutional framework and methods of the implementation of Soviet legal ideas and solutions during Stalinism (1949-1956). The paper concentrates on the situation in Czechoslovakia and Hungary. After the short introduction, which is dealing with the history of comparative law in these countries, follow the main part, which focuses on the concrete instruments of Soviet “legal assistance” in post-war Central and Eastern Europe. Among these instruments played dominant role the legal faculties in Budapest and Prague with their departments of Soviet law, further the ministries of justice with their legal institutes and the academic journals of affected countries. Final part of paper describes the process of constitution-making in Czechoslovakia (1948) and Hungary (1949).

Security of Post-German Movable Property in the First Years after the End of World War II in the Light of Selected Cases Considered by the Regional Co

Author(s): Karol Siemaszko / Language(s): English Issue: 2/2015

The end of the World War II meant change of the borders of Polish state. Under the Treaty on Polish – Soviet state border of 16th August 1945 Poland lost to Soviet Union the area between a line marked by the Treaty of Riga and so called the Curzon Line. By virtue of winning nations' decision in return for territorial loss in the East, Poland obtained eastern parts of Germany with Opole, Wrocław and Szczecin. A major problem after joining the Polish former German territories was the economic degradation of these lands. The article was devoted to the norms of criminal law concerning protection of the post-German property on the so -called Recovered Territories. The author based on selected judgments of the Regional Court in Gorzow Wielkopolski present the practice of judicial courts of general jurisdiction relating to the crimes from so-clled looting art. 43 Little Penal Code and misappropriation of movable property from the post- German lands art. 44 Little Penal Code.

Attempts to Unify and Codify Private Law during the Period of the Inter-war Czechoslovak Republic

Author(s): Adriana Švecová,Miriam Laclavíková / Language(s): English Issue: 2/2015

On the basis of the received law, Act no. 11/1918 Coll. the First Czechoslovak Republic incorporated two legal systems – the Austrian and the Hungarian. The most important task of the state administration was the fastest possible unification of the two received legal systems which established, de facto, a new Czechoslovak law. The unification (realized by means of codification) in the field of private law had a particular importance, where, on the one hand, there was applied the ABGB, and, on the other hand, in Slovakia and Carpathian Ruthenia there was applied the customary law, being constantly improved by the judicial practice, and decisions of the Curia and partial legislation were also applicable. The purpose of the present study is to briefly and, if possible, the most concisely determine the main lines and the main issues of unification and codification of the private law in the inter-war Czechoslovak Republic while taking into account the formal diversity of the received laws (ABGB versus legal customs and decisions of the Curia, i.e. generally binding rulings of the Royal Hungarian Curia (curia regis)).

Selected Aspects of the Creation and Development of the Rules of International Law for the Prosecution of War Criminals

Author(s): Ján Štefanica / Language(s): English Issue: 2/2015

The purpose of this contribution is to present the progressive development of international legal standards of prosecution of war crimes and those who committed them within the first half of the twentieth century. In this period also international law had to respond inevitably to the two global conflicts marked by the crimes against humanity and war aggression. We focus on the dominant questions of the legal regulations of warfare, war crimes in international treaties. Emphasis was put on concrete examples from legal history that contributed to advancing the issue in international forum. Essential role was played by proficient lawyers whose names are indelibly imprinted in legal history.

The Funds for the Execution of Obligations (Contract) according to the Albanian Customary Law

Author(s): Katrin Treska,Engjell Likmeta / Language(s): English Issue: 2/2015

In this paperwork will be laid for discussion the question which constitutes even the fundamental issue of this paperwork: which were the main tools for the execution of obligations according to Albanian customary law? What was the meaning and their role in relation to other norms of civil nature in the Canon? The main sources of Albanian customary law were: Canon of Lek Dukagjin, Canon of Skanderbeg, Canon of Dibra, Canon of Benda, and Canon of Laberia. In this paper will be analyzed those means sanctioned in the Canons applied in Albanian territories and used to ensure the fulfillment of obligations in civil relationships. The Albanian customary law provided that obligations were executed voluntarily and precisely. This meant that, in general, the obligations arising from a contractual relationship, were executed and fulfilled on time, in the manner specified literally in the contract, and in the right quality, even though the main form of concluding a contract at that time was the verbal one. The main tools for the execution of obligations under the Albanian customary law were: the bail (escrow), the earnest, the pledge. In this paper will be taken into analysis the provisions about these tools in the Canon of Lek Dukagjin, Canon of Skanderbeg, Canon of Dibra, Canon of Benda, and in the Canon of Laberia.

Treasure Trove in Roman Law, in Legal History, and in Modern Legal Systems. A Brief Summary

Author(s): Ivan Siklósi / Language(s): English Issue: 2/2015

In our study, the problems of regulation concerning treasure trove in Roman law and in its subsequent fate have been investigated. First of all, the Roman law regimes of treasure trove have been analysed with special regard to the famous text from Paul (D. 41, 1, 31, 1) in which the original, classical, influential, but strongly discussed definition of treasure can be found. After research in the sources and literature of Roman law, the subsequent fate of treasure trove systems needed to be scrutinised. Therefore, the different treasure trove systems in the Medieval, as well as in the modern age, and in some modern legal systems have been closely examined. As compared to Roman law—especially to classical and Justinian’s Roman law—utterly new regimes were created concerning treasure trove. Nevertheless, it is worth mentioning that Justinian’s ruling was sometimes equally in force. Not only in the medieval legal sources, but even in the modern age similar regulations compared to the medieval legal constructions can be found, albeit Justinian’s treasure trove related rules were also in force. Justinian’s Roman law regime of treasure trove, as well as the famous definition by Paul has survived in many contemporary civil codes. In this respect, the regulations of some modern civil codes were analysed.

Veränderung der Beschaffenheit der „annona militaris“ in der späten Kaiserzeit

Author(s): Miklós Kelemen / Language(s): English Issue: 2/2015

During the period of the late Roman Empire in addition to transforming the government structure of the empire, Diocletian`s (284-305) reforms changed the foundations and methods of administration and finance significally. The constitution of the so-called annona-system is to be highlighted with an outstanding importance among the substantial changes. In this system a particular provincial unit supplied and remunerated directly the officials as well as the army stationed at its territory. During the reorganization, associated with the new system, the annona militaris tax became the main tax of the provincial population. During the Severan era, this type of taxation meant the compulsory delivery of agricultural crops and it was imposed on the population in extraordinary cases. This unofficial tax in-kind assured the maintenance and nutrition of the army. The ad hoc obligation and occasional practice of the compulsory delivery was formalized and organized systematically by Diocletian, his reforms developed it into an imperial-wide administration and funding system. As an important element of the changes in connection with the reforms, the annona (i.e. a payment in kind issued within the scope of military supplies) became the primary funding source for the army and the administration instead of the stipendium (regular military pay in cash). It should be pointed out, that during the 2nd and 3rd centuries the annona militaris had not served the logistic needs of the garrison troops stationed in the territories inhabited by the tax payer population yet, but the provision and maintenance of the field armies that had left their military bases for taking part in military operations. The annona militaris, by its nature still fulfilled the function of the general military supplies. The mobile field forces mobilized for the duration of campaigns continued to receive in addition to the kind benefits also the military supplies i.e. expeditionalis annona. Due to the nature of the new type of service pay, the payment of the annona was occasionally hampered. There was a possibility of converting in-kind benefits into cash payment (replacing the annonaria species with its cash-equivalent value), especially in case of shortage of goods, spoilage of the produce or even in case of delays in receiving in-kind benefits. Converting in-kind benefits into cash (adaeratio annonae) was possible only in special cases justified by exceptional, i.e. other than administrative organizational conditions. Executing it generally and systematically was prohibited. It’s scientifically known that the disfunctions caused by the conversion of the annona into cash benefits could only be solved by the generalization and institutionalization of cash payments. Due to the economic differences between the western and the eastern part of the empire and the fall of the Western Roman Empire, there was a possibility of transforming the annona into cash payment primarily in the Eastern Roman Empi

The Regula “nasciturus pro iam nato habetur” and the Appearance of the Expression “mulieris portio” in the Digest and its Consequences

Author(s): János Erdődy / Language(s): English Issue: 2/2015

Interesting as it may be, there are some instances in contemporary Romanistic, when a certain regula is considered by secondary literature as if it were a rule of general application, consequently those not versed deeply enough in Roman law, might as well deem that such a rule could enjoy an overall usage, that is independently from time and place. One amongst these regulae is presented by Paul in the Digest (Paul. D. 1, 5, 7 [lib. sing.de port., quae lib. damn. conc.]), which contains the famous phrasing “Qui in utero est, perinde ac si in rebus humanis esset custoditur, quotiens de commodis ipsius partus quaeritur […]”. In contrast to this widely cited text, it is likewise interesting to have recourse to a case, where Ulpian reports about an imperial rescript related to the admission of the application of SC Plancianum (cf. Ulp. D. 25,4, 1 pr. – 1 [24 ad ed.]). In this text, another famous, and extensively quoted wording appears, namely the expression mulieris portio. The scrutiny of the aforesaid particular case and its secondary literature, as well as its legislative echoes may lead to a layered examination of the above phrase, as well as a more nuanced understanding of the stance of the foetus in Roman law.

The Rules of Condemnation to the Mines in Imperial Rome

Author(s): Pál Sáry / Language(s): English Issue: 2/2015

Forced labour in the mines was often inflicted as a punishment in imperial Rome. What was the position of this penalty in the Roman penal system? What different degrees of this punishment were there? Who were condemned to the mines? What procedural rules had to be observed when this punishment was inflicted? What were the legal consequences of the condemnation? What was the legal position of the children of the convicted women? What were the living conditions in the mines? What do we know about the period of this penalty? What happened if a convict received a pardon? The paper tries to answer these questions on the basis of the primary sources.

What Would ‘Praetor Paulus’ Do in ‘Post-Lehman’ World? A Comparative Analysis of Lawmakers’ Responses to the Spreading Practice of Fraudulent Transfer

Author(s): József Benke / Language(s): English Issue: 2/2015

This contribution investigates certain parallelisms between laws and socio-economic settings of laws in two entirely different ages and legal regimes. Debtors’ massive liquidity crisis in late Roman Republic and 21st century Hungarian ‘post-Lehman’ crisis of household debtors of mortgage home loans accounted in foreign currency are as similar to each other as the morals of the prolific ancient casuistics based upon the general-clause-like ruling upon actio Pauliana are useful to consider for new shrewd non-contractual fraudulent misconducts committed in contemporaneous Hungary, where such general regulation towards these kinds of tricks of fraus creditorum lacks. Therefore courts of higher instance felt themselves being obliged for finding a righteous answer to these problematic questions being emerged just in these days.

Notes about Sport Finance in Rome

Author(s): Adolfo Bautista Cremadez / Language(s): English Issue: 2/2015

Sport competitions were soon in the ancient world, an important social and cultural element. Many sportsmen in the Roman Empire are dedicated at it as a professional way , athletes enjoyed great social recognition and obtained , in case of triumph, great benefits . To finance the dedication of the athletes was used the contractual figure mutuum, money- loan, with the agreement that the borrower should return only the amount of the capital and elevated interests, case victory, assuming the banker the risk of losing.

John Wilkes, the Wilkite Lawyers and Locke’s Appeal to Law

Author(s): Michael Conforti / Language(s): English Issue: 2/2015

England’s Wilkite movement of the 1760s has usually been viewed as a functional and instrumental effort to enlarge political consciousness and political participation through the use of new communicative strategies and techniques. Most historians have judged the consequences of these efforts to be largely transitory. Generally overlooked is the substantial and enduring contribution made by Wilkite lawyers, most notably John Glynn and John Dunning, but others as well, who instituted a series of well-coordinated lawsuits against the allegedly illegal acts of an executive believed to be insidiously enlarging its power at parliament’s expense. These lawsuits were intended to be more than simple attempts to embarrass the government of George III or crass efforts to extract a bit of financial retribution for the excesses of government functionaries. Inspired by John Locke’s ‘appeal to law’ and his political philosophy which privileged the rights of the individual over the interests of the state, these lawyers asserted the individual’s right to be free from the intrusive searches of government particularly when those searches were intended to obtain evidence against a potential criminal defendant. These lawsuits, collectively the first of their kind in English legal history, served as a form of active political resistance to the policies of George’s government. The victories won by the Wilkite lawyers helped redefine the idea of ‘English liberties’, an achievement which continues to be pertinent today.

Myth of the Truth in the Heterogeneous Society

Author(s): Jacek Zieliński / Language(s): English Issue: 2/2015

In this paper we trying to draw attention to the problem of the concept oh "truth". Nowadays, however, bothers us deep skepticism abaout the possibility of its recognition. Philosophers for centuries tried to formulate various definitions and conceptions truths and truthfulness. These conceptions and definitions, rooted in own epistemology, lose the solid theory of cognition, more and more are escaping into problems of the meaning, sense, the nature of the judgment, and also language. It isn't possible to say that we have the truth, but also this state of affairs doesn't mean that we have the licence of creating the truth for instance for needs of sociotechnical steering the society. Immersed in the intuitions of truth, the focus is now only on its usefulness. Is this a good way?

Review

Author(s): András Hudvágner,Andreas Raffeiner ,Stefano Barbati / Language(s): English,German,Italian Issue: 2/2015

Review Of: Fenyvesi Csaba A kriminalisztika tendenciái. A bűnügyi nyomozás múltja, jelene, jövője [Tendencies in Criminalistics: The Past, Present and Future of Criminal Investigation] Budapest/Pécs: Dialóg Campus, 2014, 304 pp., ISBN 978-615-5376-38-2 Iole Fargnoli/Stefan Rebenich (Hrsg.) Theodor Mommsen und die Bedeutung des Römischen Rechts Abt. A: Abhandlungen zum Römischen Recht und zur Antiken Rechtsgeschichte (Freiburger Rechtsgeschichtliche Abhandlungen, N. F. Bd. 69) Berlin: Duncker & Humblodt, 2013, 184 S., ISBN 978-3-4281-4050-3, 79,90 € (D) Iole Fargnoli/Stefan Rebenich (Hrsg.) Theodor Mommsen und die Bedeutung des Römischen Rechts Abt. A: Abhandlungen zum Römischen Recht und zur Antiken Rechtsgeschichte (Freiburger Rechtsgeschichtliche Abhandlungen, N. F. Bd. 69) Berlin: Duncker & Humblodt, 2013, 184 S., ISBN 978-3-4281-4050-3, 79,90 € (D) Martin Löhnig (Hrsg.) Zwischenzeit. Rechtsgeschichte der Besatzungsjahre (Rechtskultur Wissenschaft, Bd. 2) Regenstauf: H. Gietl Verlag, 2011, ISBN 978-3-8664-6403-2, € 39,00 Martin Löhnig (Hrsg.) Zwischenzeit. Rechtsgeschichte der Besatzungsjahre (Rechtskultur Wissenschaft, Bd. 2) Regenstauf: H. Gietl Verlag, 2011, ISBN 978-3-8664-6403-2, € 39,00 Gerald Mund (Hrsg.) Deutschland und das Protektorat Böhmen und Mähren. Aus den deutschen diplomatischen Akten von 1939 bis 1945 (= Veröffentlichungen des Collegium Carolinum, Bd. 127) Göttingen: Vandenhoeck & Ruprecht, 2014, 689 S., ISBN 978-3-525-37305-7, 79.99 € (D) Gerald Mund (Hrsg.) Deutschland und das Protektorat Böhmen und Mähren. Aus den deutschen diplomatischen Akten von 1939 bis 1945 (= Veröffentlichungen des Collegium Carolinum, Bd. 127) Göttingen: Vandenhoeck & Ruprecht, 2014, 689 S., ISBN 978-3-525-37305-7, 79.99 € (D) Susanne Lösch Die coniunctio in testamentarischen Verfügungen des klassischen römischen Rechts Tübingen: Mohr Siebeck, 2014, XII-157, ISBN 978-3-16-152689-3 Anna Margarete Seelentag Ius pontificium cum iure civili coniunctum. Das Recht der Arrogation in klassischer Zeit Tübingen: Mohr Siebeck, 2014, XX-444, ISBN 978-3-16-152870-5

János Zlinszky

Author(s): Béla Szabó / Language(s): German Issue: 2/2015

Wojskowy Sąd Rejonowy w Katowicach (1946—1955)

Author(s): Marta Paszek / Language(s): Polish Issue: 8/2015

The article concerns the organisation and functioning of the Military District Court in Katowice between 1946 and 1955. The court constituted one of the fourteen military district courts in Poland which, due to their scope of activity, had been located outside of the military judicial system as delineated by the law on military courts system. The initial intention behind this division was to ensure that district courts would be able to serve as a tool for the communist government in their fight with political opposition, who questioned the political and economic system as well as the legitimacy of the communist rule. District courts were established primarily in order to rule in the cases of civilian persons falling under the jurisdiction of military courts on the basis of special provisions. The article discusses the structure of the Military District Court in Katowice as well as its subjective and local properties. A longer section of the article focuses on the members of staff as well as analysis of criminal cases presented before the court between 1946 and 1955, paying particular attention to those instances in which the ruling involved the capital punishment.