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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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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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The early period Ismaili jurist Al-Qādî al-Nu’mān appears as an important figure in the formation of Ismaili jurisprudence. There is very little information about Kadı Nu’mân’s family, childhood, education and intellectual environment. His full name is Abû Hanîfah Nu’man b. Muhammad b. Mansûr al-Qādî at-Tamîmî Al Qayrawānî. He was born around 290/903 (late 3rd (9th) century) into an educated family in Qayravan in North Africa. There are different opinions about the sect he belonged to when he was growing up. On the other hand, it is difficult to say for certain whether Nu’mān received education in the Ismaili sect due to the understanding of taqiyya in the madhhab. However, it is understood from the basic jurisprudence texts Nu’mān wrote that he most likely did not receive a Sunni education. Historians refer to him as ‘Qadi Nu’mān or Abu Hanifah al-Shi’i’ in order not to confuse him with the imam of the Hanafi school. Qādî Nu’mān served at different levels of the Fatimid State. Around 313/925, he entered the service of the first Fatimid caliph, Mahdi (r. 909-934 CE/297-322 AH), as a copyist and secretary. During the reigns of the third caliph Mansur and the fourth Fatimid caliph Mu’izz (d. 365/975), Qādî Nu’mān first served as a judge in Tripoli and then in Mansouriya, the Fatimid capital. After the Fatimids conquered Egypt and the center of government was moved to Cairo, Qādî Nu’mān was appointed by the fourth caliph Mu’izz as the head of the appellate courts (maẓālim). Qadi Numans career was at the peak in the period of Caliph Muiz. Qādî Nu’mān worked as a judge in the Fatimid State for about twenty-six years and continued this duty until his death in 363 (973). After the fall of the Fatimid caliphate, there haven’t been any other Fatimid or Ismaili jurists. Qādî Nu’mān is considered by contemporary Ismaili writers as a figure who systematically transformed Ismaili fiqh into an independent sect of fiqh. It can be said that Ismaili fiqh was developed through his works in the Fatimid period. His works continued as the main references in the fiqh studies and after the Fatimid period. With the death of Qādî Nu’mān, the period of ijtihad in Ismaili fiqh and its the establishment phase of Ismaili fiqh came to an end; The sect, in which esoteric interpretations were at the forefront, emerged as a distinctive school of fiqh by discarding ambiguity. Qādî Nu’mān was a very productive writer. He wrote important works related to the field of furu al-fiqh and usûl al-fiqh. Among his works, Ikhtilāf uṣūl al-madhāhib is undoubtedly one of the most important works in the early history of fiqh methodology. The work in question, which was originally written with the aim of rejecting the Sunni fiqh method, discusses the approaches of the Sunni schools of fiqh on ikhtilāf, taqlid, ijma, nazar, qiyas, istihsan, ijtihad and ra’y in a polemical manner. It reveals the differences of the Ismaili method from the Sunni method in terms of the sources on which the fiqh is based, the authority to make ijtihad and the theory of interpretation of the texts. Qādî Nu’mān examined the relationship between reason and revelation in general and the role of religious authority in comprehending and interpreting the texts while criticizing Sunni methods. Ikhtilāf uṣūl al-madhāhib has the characteristics of the works of development period as a form. It is possible to observe the question-answer and dialectic form which can be seen in the works of the development period throughout the work in question. Qādî Nu’mān endeavoured to persuade his opponents with a dialectical and argumentative style. Again, he replied to the Sunnis, who were his interlocutors, with their own proofs. In addition to these, Ikhtilāf uṣūl al-madhāhib has a unique feature in the matter of content. Because it is not very familiar to any Sunni handbook of usûl al-fiqh. It does not mention the hâss, âmm, ijma, qiyas, amir, nahy, alfaz bets, etc. The text is very similar to the Ahbari movement of the Jafari sect for it rejects all forms of ijtihad. It was written at a time when fiqh was not yet stable. Ikhtilāf uṣūl al-madhāhib gives us crucial information about the development of different usûl and fiqh sources in the middle of the fourth century. However, what is interesting here is that the information he gives about Ismaili method and fiqh is very little compared to the one about Sunni method and fiqh. Much of it centered on Sunni thought and its rejection. However, his ultimate goal was to defend the Ismaili doctrine. Ikhtilāf uṣūl al-madhāhib has shown us that Shiite works are as valuable as Sunni works in shedding light on the historical development of Sunni method of fiqh. The most important contribution of the work to fiqh is that it illuminates the early history of fiqh, the period of approximately one and a half centuries after Shafi’i’s death. In addition, it has been understood from the aforementioned work that the Sunni fiqh method is at an advanced level in terms of development in the early period.
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The article describes our ancestors’ attitude towards killing – beginning with effectual regulations in ancient Rome, ending with modern codes. This type of regulations appearing in our country is also discussed. The emphasis is put on privileged type of killing which was a duel, considered by our ancestors as a specific evidence within trial in ordeal.
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In the 16th century, Ottoman judicial system has a type of qadi which is mentioned as a land judge in both Rumelia and Anatolian provinces. In the Ottoman legal system, besides the province, sanjak, district, and army judges, there was an independent qadi under the name of territorial kadi. If there is an independent land judge, what exactly was the chatacteristics and quality of this qadi? In order to find answers to such questions on the subject, it is necessary to focus on how the land qadi is handled, evaluated, what findings or assumptions are put forward about its emergence and historical process in scientific studies, and more importantly, it is necessary to test the existing knowledge and assumptions based on primary sources. The territorial judgeship, which is subject to different evaluations in terms of its characteristics, has been handled as a mobile qadi who was in charge of the inspection by Ottoman historians since İsmail Hakkı Uzunçarşılı. Recently, some legal historians have put forward the idea that the land judge was a local judge. On the occasion of this research, the focus is on the types of Ottoman archive documents in which the concept has been used. In this study, the practice of being a qadi of land, which is mentioned in the Ottoman documents for a period of almost two centuries, has been discussed within the framework of the opinions expressed on the subject, archive records, şer’iyye registers, fatwa books, and law books issued in the relevant periods. First of all, in order to understand the nature of the land judge, the archive records in which the expression is frequently included were examined. In particular, documents containing subjects such as inheritance cases, provision of supplies, and tax assessment, especially the duty of inspection and investigation, which misled researchers, were evaluated. Secondly, archival records pointing to the possibility of an independent qadi of the land qadi are discussed. This concept, which is the subject of the research, is mentioned in some archive documents together with the local judges. This situation is one of the main motives behind the claims that the land qadi constitutes an independent class of judges. However, studies suggesting that there is another authorized qadi alongside the local qadis seem to have overlooked other possibilities. Similarly, within the classical period Ottoman justice mechanism, there were mostly high-level viziers and statesmen such as judges, under the name of Mehayif Inspector, who were sent from the center to detect the injustices and irregularities committed by the people of the province in the provinces. In some archive records, the mention of mehayif inspectors together with the land judges has led to the perception that they are mobile judges. The first thing that draws attention is the fact that the district judgeships are not repeated in the documents in accordance with a writing procedure. It should be noted that when only one person is selected for the Mehayif inspection, the possibility that many other mobile judges can be appointed as auxiliary elements besides the district judges is not very logical. In the last part of the study, the real characteristics of the land qadi is emphasized. Documents clearly indicating that he is a district/qadi are also discussed. Issues such as the division of inheritance mentioned in these records, hearing a case that has been dropped, fall within the jurisdiction of the district or town judges, not the work of the itinerant judges. In addition, what is meant in the archive record in which the phrase “court place of the land judge” is included is nothing but the qadi of that town. Thus, the court place/building is not mobile, but it is the place where local qadis can work. Finally, it is important to answer another question that we have outlined about the documents regarding the possibility that the Kaza qadis and the territorial qadis may be separate persons: Why is the term of “territorial qadi” included in the documents, unlike the county judges? If a lawsuit or issue in region or town more than one city, county, township etc outside that place concerns the administrative unit and the qadis here oversee the resolution of the case together, the qadi in charge of the place where the incident occurred in terms of the main place of the case and the nature of the task is called a territorial qadi in order to distinguish it from the others. Similarly, it can be seen in other examples in the documents that wherever the place of action and problem in a case presented to a town judge outside, the district judge in the aforementioned district was also involved in the case and was qualified as a land judge to indicate his position. This statement is similar to the jurisdiction of the court of the place where the incident took place in terms of appropriateness and authority in today’s judicial system.
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The article discusses a privileged type of killing which was a duel, considered as a way of a settlement of the dispute, with particular emphasis on the regulations contained in the penal code of 1932 and so-called “codes of honor”. The paper also presents an analysis of the most known “effectual” act in Poland before World War II – Boziewicz’s Code.
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The second half of the 20th century in Poland was full of momentous events. The consequences of many of them had their repercussions on the ground of application of law. The aftermath of World War II, the Stalinist period, the events of March 1968, people fleeing abroad, new socialist laws and systemic education, the functioning of the socialist economy, or the systemic changes of the 1990s are only the most significant events, the legal consequences of which are still felt today. Most of these events are still discussed in the media and political space at the beginning of the third decade of the 21st century. Current lawyers are also sometimes involved in resolving these long-standing issues both with their clients and in the public space.The study demonstrates that due to the passage of time, legal and cultural changes, the events of the past are less and less frequent among Polish jurists. Media and political reports are created artificially without support in the actual work of the Polish judiciary and lawyers. Polish legal professionals emphasise that old cases from the 20th century are increasingly rare in their professional practice, while media reports are exaggerated.The research was based on interviews with representatives of Polish bar associations of advocates and legal advisers across the country. It was conducted using semi-structured interviews and content analysis. The research belongs to the paradigm of sociology of law and oral history.
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