TÜRKİYE ve IRAK CEZA HUKUKU SİSTEMLERİNDE ONARICI ADALET UYGULAMALARI

Author(s): Suhair Fouad Zabar ZABAR / Language(s): Turkish Issue: 58/2023

In the research; restorative justice practices in Turkey and Iraqi Criminal Law systems were compared and analyzed. The qualitative analysis method was utilized by reviewing much domestic and foreign literature. Among the practices in Turkey; "alternative sanctions to short-term imprisonment, postponement of imprisonment, pre-payment, postponement of the opening of the public case, deferral of the announcement of the verdict, summary procedure, simple trial procedure, reconciliation, conditional release, special execution procedures, probation, truth commissions" are included. Iraqi practices include "alternative sanctions to short-term imprisonment, suspension of execution, fines, postponement of the opening of the public case, postponement of the execution of the verdict, summary judgment, penalty order, conciliation, conditional release, special execution procedures, probation, truth commissions". As a result, it has been determined that seven of the twelve practices examined are named with the same name and five with different names, that the practices in both countries have many common aspects by universal legal rules, that the proximity to the practices in other developed countries in the world is related to the socioeconomic development level of the country, that there is a parallelism between the effective history of the practices and their inclusiveness, and that the common point of all practices is to rehabilitate the offender by making him serve his sentence and at the same time to strengthen his bond with the society without breaking his bond with the society

BUKOVINIAN ELITES: MAXIMILIAN HACMAN (1877-1961). STEPS TO A BIOGRAPHY

Author(s): Radu Florian Bruja / Language(s): Romanian Issue: 20/2020

Born in Bukovina, in August 1877, then part of Austro-Hungarian Empire, Maximilian Hacman was a Romanian jurist, University professor and specialist in commercial law. He remained for most people known for his role in the union of Bukovina with Romania in 1918. But there are some episodes of his life that remained unknown for years. He studied at the Law Faculty in Chernivtsi University. He became a political activist during the Austrian rules in Bukovina and had an important role in autumn 1918 in Romanian national program. He voted the Bukovina’s union of Romania and was involved in efforts to join the region with Kingdom of Romania. In 20’s years was involved in “the Romanianization’s” process of University from Chernivtsi. In these years he became a Romanian nationalist but was disspointed with the Romanian political realities. Despite the fact that was involved in elimination of german professor from Chernivtsi University was attracted to German realities after 1933. In 30’s as an admirer of German order, he published a lot of studies about German law. After June 1940 he moved to Bucharest. Hacman's intellectual and ideological affinities, recommended him, in 1940, for the position of secretary of the newly established Romanian Institute, in the capital of the Nazi Germany. After war he withdrew from public life and died in Turda, in 1961. Its destiny is similar to that of the other member of elite of Bukovina.

Predstavitev zapuščine prof. dr. Sergija Vilfana (1919–1996), ki jo hrani Biblioteka Slovenske akademije znanosti in umetnosti

Author(s): Neža Strajnar / Language(s): Slovenian Issue: 2/2021

Presentation of papers belonging to Professor Sergij Vilfan (1919-1996), kept by the Library of the Slovenian Academy of Sciences and Arts.

ROMAN-CATHOLIC CHURCH AND THE CHALLENGES OF THE FRENCH REVOLUTION

Author(s): Claudiu Cotan / Language(s): Romanian Issue: 21/2020

The French Revolution was one of the great events that marked the history of humankind. The Romanian historiography presented especially its ideological and political part, but in the West the historical research did not forget its religious component. Communism used the French Revolution which it presented as one of its roots, arguing its atheism through the rationalism of the French Enlightenment, forgetting to mention the formation of a religious ideology fully manifested in France during the last years of the 18th century. This is why I shall present in this study some of the phases of the French Revolution which marked the Catholic Church in one of its greatest trials. Although anti-clericalism characterised only the French revolutionary society, the ideas of Enlightenment spread all over Europe and even further on, till America, bringing about deep changes in the mental of the society and little by little a new political thought.

THE TRUTH AND LAWS OF HISTORY

Author(s): Eleonora Rodica Iordache / Language(s): Romanian Issue: 21/2020

Normativity represents an epistemological reference of the science of history, defined by the existence of laws, principles, leading to the scientific truth. The present study debates upon the cognoscibility of the history’s truth, starting from the neo-classical theories – the correspondence and the coherence theory of truth. The relation between historical facts and scientifically truth relay on the following: the historical research is based on sources; the cultural paradigm and subjectivity of the researcher may influence, but they certainly do not determine the historical truth. Normativity in history is defined by the theory of the historical cycles, with reference to a metaphysical structure of history or by the theory of historical series.

Virtuous Promises: The Changing Oaths of the Reichshofrat and the Appearance of Impartiality

Author(s): Peter Roethke / Language(s): English Issue: 1/2023

As the Imperial Aulic Council of the Holy Roman Empire grew in stature over the course of the early modern period, the integrity of its membership came increasingly into focus. This article analyzes that heightened scrutiny through the lens of oaths. Working from the promulgated versions, drafts, and legislative history of the court ordinances, it argues that the oaths sworn by court officials were specifically tightened in order to deter corruption and the appearance of corruption. The close textual analysis reveals a keen appreciation of bureaucratic mores by the political masters of the court. For such an important instrument of imperial power as the Imperial Aulic Council, perceptions mattered.

Iurisprudentia in Medieval Ecclesiastical Jurisdiction (The Role of the iurisperitorum in the German and Hungarian Case Law)

Author(s): Elemér Balogh / Language(s): English Issue: 1/2023

The Council of Lateran IV (1215) was a landmark in the history of European law, when it required ecclesiastical courts to entrust the jurisdiction of the diocese to a person learned in canon law, among other things. This provision was the corollary of the rule that medieval canon law judges were, as a rule, persons who were well versed in the law and who had typically acquired their knowledge at universities. The situation was somewhat different in Hungary, where there was no university in the Middle Ages, but the extensive jurisdiction of the Holy See meant that the institutions of domestic law had to be applied, and the use of lawyers who knew Hungarian law was therefore indispensable.An important feature of medieval ecclesiastical jurisprudence was that, because of the high level of canon law knowledge required, judges were happy and often called upon the assistance of learned canon lawyers (iurisperiti) in complex cases. These lawyers, with their outstanding knowledge, were typically specialists in Roman canon law (ius novum) in the western countries of Europe, but in Hungary they were more likely to be specialists in the customary law of the nobility. Both groups of persons included the most qualified jurists of their time, and the institutional background for the acquisition of knowledge was provided by the universities. It was in these universities that learned law was taught, and not only substantive law but also a new model of procedural law (inquisitio) was created, based on the late Roman investigative trial.

Evolutionary Trends of the Continental European Commercial Company and Partnership Law in the First Half of the 20th Century

Author(s): João Manuel Cardão do Espírito Santo Noronha / Language(s): English Issue: 1/2023

The present paper intends to present some critical considerations on the evolutionary cycle of the European continental law of commercial companies and partnerships that covers the first half of the 20th century. It focuses particularly on the German innovations represented by the introduction of the private limited liability type of company, and in the reconstruction of the relationship between the shareholders and the management brought by the German Public Limited Liability Company Law of 1937. These are two fundamental key areas for understanding the shape of the modern European-continental company law.

DO TITLE HOLDERS ALWAYS WIN IN THE OTTOMAN COURTS?

Author(s): Emre ÖZER / Language(s): English Issue: 27/2023

In this study, the relationship between litigation success and the titles of the parties (plaintiff and defendant) in Ottoman courts was examined. The registers of Galata and Üsküdar courts from the center and Konya and Kütahya courts from the province between the period 1800-1840 were used. Making use of the 50% plaintiff win rate hypothesis and the factors affecting this rate in the law and economics literature, the effect of being a titleholder on litigation success is investigated by regression analyses. According to the first model, while being a title holder has a significant effect on the probability of success considering all observations and in the provincial courts, it is not valid in the center. In the second model, in which titles are categorized in more detail, variables such as representation, the burden of proof, and evidence are added as controls besides the gender and religion of the parties. Accordingly, elite titles and the burden of proof seem to be the important factors that affect the probability of success to deviate between parties to cases and across regions.

Legal Protection of Life in the Constitutions of the Republic of Poland of March 17, 1921 and April 2, 1997

Author(s): Michał Ożóg / Language(s): English Issue: 2/2022

The issue of legal protection of life from Article 38 of the 1997 Constitution is one of the most important dilemmas of modern Polish law. This issue was already regulated in the March Constitution. The purpose of the article is to present the normative content of the legal protection of life on the basis of both constitutions. The research objective is to determine the importance of the two constitutions in providing legal protection of life in the context of the tasks of the ordinary legislature and the importance of judicial decisions. The text confronts the assumptions of the system legislator with lower–level regulations. Particular attention has been paid to the issue of assessing the compatibility of these solutions with the constitution’s design. Consideration was given to the influence of international organizations on the content and implementation of the protection of life in the Polish legal order. The study includes an analysis of the literature on the subject. The dogmatic and historical-legal method was used. The deliberations take into account the weaknesses and strengths of entrusting the judiciary with the constitutional task of defining the normative content of the protection of life. Contemporary public disputes in this matter should prompt greater efforts in clarifying constitutional solutions. It is worth bearing in mind the experience of the 1921 Constitution.

Sąd Marynarki Wojennej w Gdyni – wybrane sylwetki sędziów, którzy dopuścili się zbrodni sądowych

Author(s): Helena Kowalska / Language(s): Polish Issue: 2/2022

The article titled “Navy Court in Gdynia – profiles of selected judges who committed court crimes” is about a history of this court and changes that were being made in the court’s characteristic and the reasons behind these adjustments. Next, the article presents the role of the Navy Court in repressions across the Eastern and West Pomerania. The study also shows the important issue of case law, especially of political trials and death sentences passed. The article discusses a problem of cooperation between the Navy Court, secret political police, the Navy Prosecutor’s Office and the Navy Bar. The range of these institutions’ activities is presented in the study as well as the mechanisms of putting pressure on the Navy Court by secret political police and the Navy’s information office. The article shows the meaning of the Navy Prosecutor’s Office in preliminary proceedings and presents the profiles of some of the most important prosecutors who worked in the Navy Prosecutor’s Office. The main part of the article is devoted to the profiles of judges and associated judges who worked in the Navy Court during the years 1945–1955. Profiles of people that were in charge of the Court have been described in detail. The article shows their influence on ruling and the way they controlled the Navy Court. Furthermore, the study presents the education of twenty judges and associated judges, their ruling activity and further professional life. The career of judges who played the most important role in creating the case law of the Navy Court is presented in a more detailed way. Moreover, an issue of appraising the judges’ activity during their work in the Navy Court is also mentioned in the article.

Nieznane protokoły posiedzeń podkomisji prawa o stosunkach z pokrewieństwa i opieki Komisji Kodyfikacyjnej Rzeczypospolitej Polskiej z 1939 roku (część III)

Author(s): Marian Mikołajczyk,Grzegorz Nancka / Language(s): Polish Issue: 1/2023

When Poland regained independence in 1918, the different legal systems of the various partitioning states all remained in force on its territory. Drafts of uniform laws were to be drawn up by the Codification Commission established in 1919. One of its tasks was the preparation of a draft of the family and guardianship law. The sub-commission addressing this division of civil law worked until the outbreak of World War Two. The minutes of its sittings disappeared in September 1939 along with the total output of the Codification Commission. However, copies of minutes of the sittings of the subcommission held in 1939 were found in Kazimierz Przybyłowski’s collection of books donated to the Faculty of Law and Administration of University of Silesia in Katowice. These minutes shed new light on the final phase of the codification works. Publication of these documents will enable further detailed research on the history of family law in interwar Poland. The third part of the publication consists of minutes nos. 190–196.

O potrzebie studiów nad historią prawa – przemyślenia na tle rozważań Tomasza Opalińskiego zawartych w monografii Stan chłopski w Księstwie Warszawskim w świetle akt sądowych

Author(s): Oskar Kanecki / Language(s): Polish Issue: 2/2022

Studies on the history of political systems and law involve a necessity to present historic law institutions with a modern view. This requires from the researcher a good command of legal language and scientific terminology. This article is an attempt to analyze the characteristics of studies dealing with the history of law against the background of Tomasz Opaliński’s thoughts included in the monograph “State of peasantry in the Duchy of Warsaw in the light of court records”. The Author described the situation of peasants in the years 1808–1815 in the light of the judicial documents of courts of peace. This issue is important because the Constitution of the Duchy of Warsaw, abolishing „slavery”, introduced the equality of all citizens in terms of the law, which enabled the establishment of common courts. The historical and legal method was applied in this research. The book consists of four chapters, numerous appendices and its contents were organized according to subject-chronology. The Author discussed general issues (including the organization of the judiciary in the Crown of the Kingdom of Poland and in the Duchy of Warsaw), court records, major social and economic problems of peasants, as well as interstate relations (between peasants, peasants and nobles, peasants and burghers, peasants and Jews, peasants and clergy).

Materiały do działalności sejmiku kijowskiego z II poł. XVII w. w księgach grodzkich dawnego województwa kijowskiego

Author(s): Jarosław Stolicki / Language(s): Polish Issue: 1/2022

The holdings of the Central State Historical Archives of Ukraine in Kyiv include the castrum records of the former Kievan palatinate. In the mid-nineteenth century, they were collected by the Russian government and deposited in the newly created archive. Those records have been maintained since 1566, the date of the major legal and political reforms in Lithuania. In particular, they include the records of the second half of the seventeenth century, when the palatinate dietine was held in Włodzimierz. The Kievan nobility prevailed in their desires to preserve the castrum records from destruction, and to have a revision carried out after the wars with the Cossacks and Muscovy, in accordance with the constitutions of 1658 and 1661. Judicial reforms have also been necessary, since Kyiv (the traditional seat of the courts) remained in the hands of Muscovy. The article discusses the resolves of the Kievan palatinate dietines regarding the revision of records, and the results of the query of the Żytomierz, Owrucz, and Kyiv castrum records from the exile period. The state of preservation of those records is presented on the basis of contemporary sources. These records were compared with the information from the contemporary inventory and an archival query conducted by the author /Annex II/. The records of Żytomierz and Owrucz are preserved partially. The Kyiv records predating 1648 were seized by Muscovy. After 1684, new Kyiv records collections has been established, which is still kept in the archives in Kyiv. The sources for the history of the sejmik of Kyiv, which can be found in these books, are presented in the article.

The Procedure of Joining the order in Belarus in the Second Half of XIX and at the Beginning of XX Century: Legislation and Practice

Author(s): Raisa Zianiuk / Language(s): English Issue: 1/2022

The article highlights the evolution of the legislation of the Russian Empire regarding the rules for joining the monastic order. It also shows how the approach to understanding the organization of monastic life in the Russian Empire has evolved: from the order as the main form to the monastery. On the examples of some people who wanted to join a monastic order, the discrepancy between the state legislation that allowed entry, and the practice that forbade them is shown.

ПРАВНА ПРИРОДА МЕЂУНАРОДНОГ ПРАВА

Author(s): Igor Popović / Language(s): Serbian Issue: 47/2014

The goal of this paper is to examine legal nature of international law. Author is arguing that it is legitimate to say that intrenational law is not a law. International law does not have all the necessary elements to be considered as law, beacuse it lacks coersion. Namely, to be able to define international law, we first have to define what is law. One of the constitutive elements of law is coersion. State as the holder of the monopoly of legal coersion ensures that the law is applied. Souvereign organisation on international level does not exists – there is no world state. That indicates that international law is not supported by souvereign entity which will secure the application of law. That brings us to the above mentioned conclusion that so called international law is not a law.

Sodišče slovenske narodne časti: propaganda

Author(s): Mateja Čoh Kladnik / Language(s): Slovenian Issue: 1-2/2017

At the beginning of June 1945, the Court of the Slovenian National Honour was established. Until the end of August 1945, it put to trial those who collaborated with the occupiers and “domestic traitors” in any way during the Second World War and thus tainted Slovenian national honour. It gave sentences including loss of national honour, light or heavy forced labour, and complete or partial confiscation of property for the benefit of the state. The process of establishing the court was supported by extensive propaganda. Newspapers wrote about national honour, national treason, and what kind of a sentence the guilty deserve. Articles on the responsibility of individuals were published and people were being urged to help uncover “national traitors” and “criminals”. During the time that the court operated, the newspapers mostly published the names of the convicted, the descriptions of the (alleged) crimes, and the sentences by the Court of the Slovenian National Honour.

Značilnosti revolucionarnega sodstva

Author(s): Tamara Griesser Pečar / Language(s): Slovenian Issue: 1-2/2017

In totalitarian countries, everything is subordinated to a certain ideology and dictator or party. The powers of the state are unified. Crime is part of the system. Violations of human rights occur daily. Strong political police forces are present. An effective method of repression are politically motivated trials (or show trials); their purpose is to eliminate actual and alleged enemies and to intimidate people. The trials are only seemingly being carried out in accordance with legal norms. In reality, their course and outcome are dictated either by the dictator or the party. During the Second World War, the Kočevje trial took place. It served as an example for all post-war show trials in Slovenia. It was not carried out in accordance with legal norms: in the investigation and the actual trial, human rights were violated, only witnesses and evidence that incriminated the accused were considered, the indictment was issued too late which prevented the accused from preparing their defence, the defending counsels faced a conflict of interests, the judges were lay judges. Additionally, the court in Kočevje had no legal basis since the Kingdom of Yugoslavia still existed at the time.

БИБЛИОГРАФИЯ НА БЪЛГАРСКАТА НАСЛЕДСТВЕНОПРАВНА ЛИТЕРАТУРА СЛЕД 1949

Author(s): Vasil Petrov / Language(s): Bulgarian Issue: 4/2022

ÎNCETAREA DE DREPT A CONTRACTULUI INDIVIDUAL DE MUNCĂ-INSTITUȚIE FUNDAMENTALĂ A DREPTULUI MUNCII

Author(s): Ioan Micle / Language(s): Romanian Issue: 28/2022

Labor law, doctrine and jurisprudence use different terms to designate the ways in which the termination of a legal employment relationship takes place. Thus, the Romanian legislator, in Chapter V of the Labor Code, uses the notion of termination of the employment contract. On the one hand, the notion designates the legal end of the employment contract, regardless of the grounds and the ways in which the legal employment relationship is terminated, in a broad sense. extinguishing the legal employment relationship. Labor law refers to the phrase "termination of employment" which qualifies as a generic term for all situations that end a legal employment relationship. The Labor Code stipulates the modalities of termination of the individual employment contract. The termination of the individual employment contract may have the right, by agreement of the parties and as a result of the unilateral will of one of the parties. . two such ways of terminating legal employment are regulated. From the contents of the respective legal texts, it results that, in all these hypotheses, the termination of the employment contract is achieved by a legal act. This legal act can be, a unilateral manifestation of will, initiative of one of the parties (employee or employer), or through a bilateral manifestation of will, (as a result of the agreement of the parties). one of the parts of the legal employment relationship. The termination of the legal employment relationship requires the establishment of the reasons that lead to it, the knowledge of the cases and the ways to end this relationship and the fulfillment of certain conditions. In their absence, the termination of the employment contract will not take effect. There is only one exception, namely: when the legal employment relationship terminates by law, ie in circumstances that do not depend on the will of the parties. The hypotheses provided by the labor legislation, in which the termination of the employment contract may take place, in the ways and for the reasons established by law, form the cases of termination of the employment contract. However, in addition to the stability of the ways, the reasons and the cases of termination of the employment contract, the labor legislation provides certain conditions, both in substance and in form. These procedural conditions must to justify, to validate the termination of the employment contract, as a legal act.