Keresés
Keresési eredmények
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Tamás Nótári: Bavarian Historiography in Early Medieval Salzburg
67-68Megtekintések száma:67Absztarkt nélkül
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Egy problémás szabályozási örökség az új anyagi büntetőkódexben: az életveszélyt okozó testi sértés
47-78Megtekintések száma:112A Büntető Törvénykönyvről szóló 2012.évi C. törvény újabb jelentős szabályozástörténeti
állomást jelent a magyar büntetőjogban. A szakzsargonban nemes egyszerűséggel, csak új
Btk.-nak nevezett kódex különböző kritikákat kapott mind jogirodalom, mind a jogalkalmazás
művelőitől.2 Az észrevételek azonban átsiklottak egy olyan szabályozási megoldás felett,
amelynek létjogosultsága – véleményem szerint – meglehetősen vitatható. Az egymásnak
feszülő bírósági ítéleti indokolások is bizonyítják, hogy az életveszélyt okozó testi sértés
tényállása az egyik legproblematikusabb szabályozási megoldás az „1978-as” büntető anyagi
kódexünkben. E tanulmányban a fenti téma körüljárására teszek kísérletet. -
A munkabérfizetés és munkabérvédelem alapvető kérdései a magyar munkajogi szabályozásban és joggyakorlatban
27-37Megtekintések száma:40The aim of my publication is to scrutinise the Hungarian rules concerning the protection of wages and concluding how effectively they serve the social interests of employees. Furthermore, I researched if the regulation is efficient and consistent enough to protect the employees in point of the compensation for work.
During the research, I was examining the efficiency of the protection of the employees and their salaries in practice. The other question was whether the current regulation is satisfactory enough to provide the main purposes. In order to answer these questions I was analysing the theoretical dimension and the judicial practice as well.
I concluded that even if there are some incompleteness and inconsistency in the Hungarian labour law, the regulation seems appropriate and rational concerning the interests of the employees. In my opinion, the social function of labour law serves the employees’ interests enough to give them a decent standard of living.
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Őslakos népek Európában? - Az európai emberi jogvédelmi mechanizmus őslakos népekkel kapcsolatos joggyakorlatának aktuális kérdései
32-44Megtekintések száma:70The aim of the current study is to examine the jurisprudence of the European Human Rights Mechanism (hereafter: EHRM), focusing on the three most common issues that indigenous peoples living on the European Continent has to face. First, the modern economic activities, which affect their traditional livelihoods. Second, the difficulties of proving their land claims due to the unwritten nature of their culture. Finally, the threat of relocation, which causes severe problems considering their close links to the traditionally occupied lands. Regarding the first issue the author examines how the EHRM developed its jurisprudence from the initial negative attitude of the European Commission on Human Rights (hereafter: ECHR) – which ceased to exist in 1998 – to the more receptive attitude of the European Court of Human Right (hereafter: ECtHR). The main question regarding the second issue is the ability of the EHRM to accept the laws and traditions of a significantly different society as equal. Until the recent times, the ECtHR – and former ECHR – only accepted written proof as authentic. Last, but not least the author introduces three cases in which indigenous peoples had been removed from their ancient lands, and have not been allowed to return ever since. Considering their close relation with their lands – which serves as basis of cultural identity for them – the result is devastating.
Having regard to the above mentioned jurisprudence, three questions arise. First, has the jurisprudence of the EHRM evolved over the years; second – which forecasts the answer for the first question – why does granting effective protection for indigenous peoples still cause problems to the ECtHR? Third, are there any signs of change in the jurisdiction? The answer is complex: the jurisprudence of the ECtHR is definitely evolved; however it still does not reach the level of protection offered by the Inter-American System, which acts as a pioneer on the field of protecting indigenous rights, closely followed by the African System. The attitude of the EHRM is mainly attributable to historical and social reasons creating serious obstacles for the ECtHR. Considering the example of the Inter-American and the African Systems the main question is whether the judges of the ECtHR and the policy makers have the determination to exceed these barriers.
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A lipcsei ítélet
Megtekintések száma:34In Germany the new constitution published in 1919 established a brand new and democratically based state structure. Beside the traditional forum of administrative courts a new court system had been established in connection with public law jurisdiction. After Germany lost the first World War, general depression made a big impression on German state structure too. One of the most significant conflicts of this period had risen between the Empire and its biggest member state, Prussia. On 20th July 1932 president of the Empire suspended the Prussian autonomy and seized the power of directing the member state. The German Court of State had to verify this decision. Because of the fact that the court held its session in Lipche, this judgement is called as the famous judgement of Lipche. There are several really significant and dogmatically important factors in this decision, which help us understand the legal structure of that age in the German Empire.
In this study I examine extraordinary power of the monarch in the Republic of Weimar and its special control by the courts. Constitution gave the right to the sovereign to obtain the regulations of the constitution by force in member states. There was a special right that entitled him using uncommon orders in case of attack against public order and public security. These rules ensured the unity of the Empire.
The speciality of this judgement is that the Court qualified the order of the monarch unlawful because of the lack of the two circumstances mentioned above. To verify this decision court had to examine not only the nature of its procedure but the meaning of unity in the whole Empire, the aim of the constitution and these special rights of the monarch. The court focused on the examination of culpability in a member state. The conclusion is that intervention is legally based not only when a member state breaks the law with culpable behaviour but when breaking down of public order exists. In this special case the court split this practice and qualified the suspension of autonomy unlawful, but it found that other orders of the sovereign were acceptable. The result was that the autonomy was renovated but the Prussian government did not have the right in those cases, which were deprived by the monarch.
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Beszámoló A büntető szankciórendszer fejlesztésének lehetőségei címmel megrendezett tudományos ülésről
Megtekintések száma:46Absztrakt nélkül.
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A téves ténymegállapítás egyes pszichológiai aspektusai
Megtekintések száma:184Psychology plays a main role in the criminal procedure. The psychological methods started being used only in the 19th century. During the legal proceedings the autorities must deal with people. The behavior of the people is very different. The authorities must know the basic rules of the psichology to understand the accused people and witneses. The human memory has a lot of regularity. The knowledge of these regularities make easier the efforts of the authorities to get the truts. The importance of the pschichological knowledge in the legal occupation is unquestional. Overbearing police methods creat too high risk of false confession and are not likely to yield factually reliable information from the accused. A significant number of confessions that result in wrongful convictions are obtained through coercive questioning. This paper examines false confessions and discusses the psychological and social factors that influence the verdict in criminal procedure and how often do false confessions lead to miscarriages of justice. In determining the admissibility of confession evidence, the courts have to considere factors such as mental abuse in addition to physical force and threats.
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A mulasztás, mint jogellenesség az orvosi jogi jogviszonyban
Megtekintések száma:66Absztrakt nélkül.
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A csalás értelmezési lehetőségei az osztrák büntetőjogban
Megtekintések száma:76It is a well known fact that the legal system of Hungary has a close relation to the legal system in Austria. This should be interesting to examine on which grounds and points the two systems differ from each other. To achieve this challenge, provisions of fraud – as an ancient legal institution – could be a perfect starting point. The essay would like to stress the most important significances of fraud in Austria from both scientific and practical viewpoints.
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Elektronikus házi őrizet Nagy-Britanniában
23-29Megtekintések száma:46Der Text befasst sich mit der Situation und Projekten in Zusammenhang mit der Einführung der Electronic Monitoring, mit anderen Namen Electronic Tagging in Groß-Britannien.
In der USA war die elektronische Überwachung, als Strafvollzugsalternative schon bekannt, als zuerst in Europa in Groß-Britannien damit Projektversuche begannen.
Dem ersten unerfolgreiche Versuch mit EM als Alternative der Untersuchungshaft folgte eine weitere auch als Sanktionsalternative verwendete EM erfolgreicher Projektversuch, dessen Folge die Einführung in mehreren Bezirken war.
Nach dem Jahre 1999 wurde die electronic tagging in Groß-Britannien überall in zwei Anwendungsbereichen, als Front-Door Variante und auch als Back-Door Version eingeführt.
Der Text beinhaltet statistische Daten und die kurze Beschreibung dieser Institution.
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IQ versus befolyásolás, avagy az intelligencia hányados és a befolyásolhatóság közötti összefüggések
39-46Megtekintések száma:169This is an essay about the connection of impressionability and intelligence quotient. The intelligence quotient of witness or accused has main role in the criminal procedure.
So, what is the intelligence and the intelligence quotient? The intelligence is a mental power, that contains the quality of argumentation, contemplation, learning, problem solution and the abstract thinking. This mental power helps to understand the happenings in the world. The intelligence quotient of the witness or accused is very important, because the quality of perception is based on the intelligence quotient. The perception shows how they can remember the criminal situations. The intelligence quotient depedns on the the social and cultural enviornment, the inherited qualities, and the personal experiences.
The important question is, which is the stronger, the intelligence or the impressionability. High intelligence quotient is a mean of the witness or accused to escape form impressionability. On the other hand, the authorities try to use the power of influence. So two powers meet in the criminal procedure, the intelligence and the influenceing, and usually the stronger is the winner.
The intelligence quotient has main role in the part of the investigation and the trial. The warnings before the interrogation are written in the difficult language of law. So it would be a problem in the part of investigation, because the witness or accused does not understand these. Because of that they would say or tell something that they would not tell in normal circumstances. The low intelligence makes the accused confess their real or believed sin. The accused with higher intelligence quotient understands much better the warning, and they can use those possibilites the law premits them. Their combinative quality is higher, so they discover another solutions not just the confessing. The authorities shall pay attention to the intelligence quotient of the accused, because the extremly low intelligence quotient would be the sign of mental retardation. The mental retardation is a kind of pathological mental state. The accused who suffers in pathological mental state is not be punishable or his or her punishment may be reduced unlimited.
The language of trials is also difficult and the other problem with it is publicity. The accused with low IQ feels shame because of their low IQ so they want to keep it secret. The accused becomes stressed in the trial so they lose their second chance to make things better, because they are not able to confess without impressions again. Low intelligence quotient usually cooperates with low ability of problem solution, so the accused with low intelligence can’t adapt themselves to the occassion of the trial. This circumstance would influence the judges, when they impose punishment, so the punishment would be stricter.
The conclusion is that the accused with low intelligence quotient meets with some difficulties during the criminal procedure, so the consuels for the defence shall pay attention to them, and help their clients with comments of the legal texts. On the other hand, the authorities shall be out for the good knowledge of mankind.
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Kétoldalú nemzetközi szerződés alkalmazásának felfüggesztése fegyveres konfliktus miatt
28-32Megtekintések száma:72The effect of armed conflict on bilateral international treaties of the belligerent parties has undergone a considerable change in the past century. From the concept of termination as the effect of armed conflict by the time of World War II practice of the States had reached the position of suspension of application or no effect at all. This question is regulated solely under customary international law, but the practice of states and doctrine is not readily available and sometimes may be contradictory.
Suspension in the case of armed conflict considerably differs from the rules set out in the 1969 Vienna Convention on the Law of Treaties. The lengthy procedure which is based on the negotiation of the parties of the relevant bilateral treaty is almost impossible in the circumstances of an armed conflict, especially with respect to the hostile relationship between the parties.
When dealing with this issue one finds that in the practice of States non-application of treaties during an armed conflict exists, however from the viewpoint of principles of international law, namely the principles of pacta sunt servanda, good faith, ex injuria jus non oritur and rule of law this practice - to say the least - is questionable. -
A szerződési szabadság gazdaságszabályozó szerepe
Megtekintések száma:152The freedom of contract has an economic regulating rule, both on individual and on communal level; secures either the enforcement of the law of the self-determination of the parts, or the possibility of market participation.
Gwartney and Lawson, elaborators of the conception of the economic freedom, said that the capstones of the economic freedom are the freedom for the decisions and for the acts of the persons, moreover the volunteering of the exchange, the freedom of the competition, the protection of the persons and their properties.
Several indicators are available for measuring the economic freedom. One of them is the index of the Canadian Fraser Institute Economic Freedom of the World; furthermore it is one of the most respected indicators. This index investigates the rate of the economic freedom by using 42 factors grouped to five parts. These five components are the legal system and the protection of the ownership, size of the state, reliable, so stable valued money, the freedom of the foreign trade, the capital market and the regulation of the business. The last four items can be identified as the freedom of the contract.
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A polgári eljárások egyszerűsítése az Európai Unióban, különös tekintettel a kis pertárgyértékű ügyek szabályozására
Megtekintések száma:41Introduced to reduce obstacles to the free movement of goods and persons, judicial cooperation in civil matters has become part and parcel of the new European area of justice. Creation of this area is meant to simplify the existing legal environment and to reinforce citizens' feeling of being part of a common entity. The Conclusions of the Tampere European Council state in this respect that “in a genuine European Area of Justice individuals and businesses should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal or administrative systems in the Member States.”
At present, the judicial cooperation in civil procedures is based on the Hague Programme, adopted by the 2004 Europen Council in Bruxelles.The Hague Programme requires that the Commission should translate the Hague objectives into concrete measures. To this end, the Annex to the Communication from the Commission to the Council and the. European Parliament on the Hague Programme, consists of an Action Plan listing the main actions and measures to be taken over the next five years, including a specific set of deadlines for their presentation to the Council and the European Parliament.
The chapter dealing with this area is named „Strengthening justice”, and it includes amongst others the following tasks:
- Specific Programme on Judicial Cooperation in Civil and Commercial Matters (2007)
- Support by the Union to networks of judicial organisations and institutions (continuous)
- Creating a „European Judicial culture”
- Evaluation of quality of justice (Communication - 2006)
- Creation, from the existing structures, of an effective European training network for judicial authorities for both civil and criminal matters (2007)
The European Union has set itself the objective of maintaining and developing the European Union as an area of freedom, security and justice in which the free movement of persons is ensured. For the gradual establishment of such an area, the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters needed for the proper functioning of the internal market.
The Community has among other measures already adopted Council Regulation (EC) No 1348/2000 of 29 May 2000, on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters; Council Decision 2001/470/EC of 28 May 2001, establishing a European Judicial Network in civil and commercial matters; Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004, creating a European Enforcement Order for uncontested claims; Council Directive 2002/8/EC, of 27 January 2003, to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes; Council Regulation (EC) 2201/2003, of 27 November 2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) 1347/2000; Regulation (EC) No 805/2004, of the European Parliament and of the Council of 21 April 2004, creating a European Enforcement Order for uncontested claims; Proposal for a regulation of the European Parliament and of the Council creating a European order for payment procedure; Proposal for a regulation of the European Parliament and of the Council establishing a European Small Claims Procedure.
The disproportionate cost of litigation for small claims has led many Member States to provide simplified procedures for claims of small value which are intended to provide access to justice at a lower cost, thus influencing one of the three factors that determine the rationales in dispute resolution. The details of these procedures have been investigated and documented in detail in studies prepared for the Commission. The evidence from these reports suggests that the costs and timescale associated with the domestic simplified measures, and thus their use and utility to claimants, varies widely. A 1995 study for the Commission found evidence of how costs of cross-border claims were significant compared to the size of most potential claims, and that these costs varied substantially between Member States. The total costs of pursuing a cross-border claim with a value of € 2.000 was found to vary, depending on the combination of Member States, from € 980 to € 6.600, with an average quoted figure of € 2.489 for a proceeding at the plaintiff’s residence. The study also showed that due to different and conflicting costing rules part of the costs have to be paid even by successful plaintiffs.
On 20 December 2002, the Commission adopted a Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation. The Green Paper launched a consultation on measures concerning the simplification and the speeding up of small claims litigation.
The European Small Claims Procedure is meant to simplify and speed up litigation concerning small claims, whilst reducing costs, by offering an optional tool in addition to the possibilities existing under the laws of the Member States. This Regulation should also make it simpler to obtain the recognition and enforcement of a judgment given in a European Small Claims Procedure in another Member State, including judgements which were initially of a purely domestic nature. In order to facilitate the introduction of the procedure, the claimant should commence the European Small Claims Procedure by completing a claim form and lodging it at the competent court or tribunal. In order to reduce costs and delays, documents should be served on the parties by registered letter with acknowledgment of receipt, or by any simpler means such as simple letter, fax or email. The procedure should be a written procedure, unless an oral hearing is considered necessary by the court. The parties should not be obliged to be represented by a lawyer. The court should be given the possibility to hold a hearing through an audio, video or email conference. It should also be given the possibility to determine the means of proof and the extent of the taking of evidence according to its discretion and admit the taking of evidence through telephone, written statements of witnesses, and audio, video or email conferences. The court should respect the principle of an adversarial process. In order to speed up the resolution of disputes, the judgment should be rendered within six months following the registration of the claim. In order to speed up the recovery of small claims, the judgment should be immediately enforceable notwithstanding any possible appeal and without the condition of the provision of a security. In order to reduce costs, when the unsuccessful party is a natural person and is not represented by a lawyer or another legal professional, he should not be obliged to reimburse the fees of a lawyer or another legal professional of the other party. In order to facilitate recognition and enforcement, a judgment given in a Member State in a European Small Claims Procedure should be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition. Since the objectives of the action to be taken namely the establishment of a procedure to simplify and speed up litigation concerning small claims, and reduce costs, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article this Regulation does not go beyond what is necessary to achieve those objectives.
The European Council underlines the need further to enhance work on the creation of a Europe for citizens and the essential role that the setting up of a European Area for Justice will play in thisrespect. A number of measures have already been carried out. Further efforts should be made to facilitate access to justice and judicial cooperation as well as the full employment of mutual recognition. It is of particular importance that borders between countries in Europe no longer constitute an obstacle to the settlement of civil law matters or to the bringing of court proceedings and the enforcement of decisions in civil matters.
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Kereskedés szén-dioxid kvótákkal (Zenke–Fuhr, Handel mit CO2-Zertifikaten)
Megtekintések száma:50Absztrakt nélkül.
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A köztörvényhatósági törvény (1870:XLII. tc.) létrejötte
Megtekintések száma:93Act no XLII of 1870 reflected the constitutional arrangements of the Compromise of 1867. This was the first law providing a comprehensive regulation of the system of public administration, which remained, with minor amendments, determining in the entire dualistic era. The system of “virilims” was introduced, which restricted popular representation. The office of the Lord Lieutenant, as the representative of the centralistic endeavours of the government, was created, whereby central power could be enforced. The central government did all in its power to ensure that the self-government of municipalities was kept under control. The rights that local authorities had in the feudal period could no longer be granted, as this would have frustrated the operation of the central government. It was in accordance with the above that the provisions of the law had to be accepted, local policy influenced, and municipalities thereby reorganised.
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A bankkártya szerződések fogyasztóvédelmi garanciarendszere
64-85Megtekintések száma:51Absztrakt nélkül.
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Adalékok a római zálogjog továbbéléséhez a középkori germán jogokban
47-50Megtekintések száma:97Absztrakt nélkül.
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A köztársasági elnöki kegyelem a büntetőjog szempontjából
102-113Megtekintések száma:338The individual pardon, exercised by the President of the Republic, has recently become the centre of attention in the media and among the lawyers in context of life imprisonment without parole eligibility. This prompts me to investigate the presidential pardon in this article.
I am dealing with the origins and the standardization of pardon, then I move on to the conditions and criteria the Head of State can take into consideration when making the decision. Afterwards, I am presenting some statistics.
The power of pardon is stipulated by the Fundamental Law of Hungary, and the specific rules can be found in the Criminal Code, the Criminal Procedure Act and the Punishment Executive Act.
I am focusing on the last one, in which the Government and the Parliament have redressed the problems of life sentence, regarding human rights, with a compulsory procedure of pardon, thus giving the convict the hope of being released from prison. However, this solution raises a few questions, so arguments can be made both for and against it.
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A társasági jogviszonyok szabályozása a német polgári jogi társaságban
Megtekintések száma:62Partnership under the civil code is a harsh institution in Hungarian legal system. Despite of this fact, most of the European countries apply this legal entity a lot as a background for other, more complicated corporate forms. In my essay I demonstrate those rules in German Civil Code (BGB), which show the importance and opportunities of these partnerships.
If we would like to describe the essentials of partnerships under the Civil Code, the most important question is the legal relations from both inner and external point of view. Internal relations mean an obligation between the parties, who form this partnership. It is natural that we can find both rights and commitments between founders. This is a contract but BGB says that all parties have equal rights and commitments in the same partnership. As a general rule of the Code, it is permissive, not cogent. BGB has basic regulation for operating such a partnership, but can be useful if founders live with this permissive opportunity and shape special rules for their partnership, which fit to their aims, functions, different financial potential of the parties.
There is a chance for founders to neglect building a whole structure and organization for their partnership, if they want to operate it as an inner partnership, without external relations, focusing only for the rights and omissions between the parties.
From all contract that establishes a partnership under the Civil Code membership rights follow. These rights cannot be transferred. A distinction can be made between administrational, common business management and financial rights. Rights to common business management can consist of right to information, right to supervision or the most important right to vote. Financial rights gather typical rights such as right to dividend or liquidity proportion. These rights are social omissions from the viewpoint of the partnership itself, as these are for the interest of the parties.
The most important omissions of the founders are financial contribution to establish the partnership. This regulation results from that partnership is to promote common aim of the founders, and to achieve this, all of them have to make available pecuniary or non-pecuniary assets. According to a special rule of BGB, over against the other corporate forms, members of the partnership have no omission to increase or complete their assets.
Management of the partnership is not only a right but an obligation too. A special omission is that all members and founders have to be loyal to the partnership. Because of the strong partnership character of this corporate form, this means that members have to keep the interest and aim of the partnership in view. They all are responsible for achieving the aim of the partnership and nobody can sit as a beneficiary. Loyal members have to keep secrets in connection with operating the partnership and of course the sudden obligation to inform the others of all events and experiences, which are in tight connection with the partnership and the interests of the parties. If any of the members breach these obligations, rules of damages can be applied in BGB.
Assets of the partnership are special, because no separated corporate assets form. Financial and non-pecuniary contribution becomes the assets of the community of members. It is undividable and common. But these common assets are strictly separated from the private assets of the parties. Rights for profit and deficit are equal, but this permissive rule allows different regulation in the contract. The only cogent sentence is the prohibition of societas leoniana, i.e. nobody can be precluded of profit and deficit.
External relations mean the representation of the partnership. In this case the most important law is the contract itself. In case of disagreement between the parties, there is a helping rule of BGB: members can act as a body. If we take into consideration the rules of liability, we can say that because of the lack of legal capacity of the partnership, individual liability has its important role. Generally this liability is unlimited, but there is a chance to agree with the creditor to limit liability. But this limitation is only valid for that legal transaction.
Rules for partnerships under the Civil Code in Germany are more detailed and nuanced than in Hungary. Partnership is the basic type of civil law partnerships, such as limited partnership or general partnership. We have to consider that building up a more coherent regulation for these partnerships can be useful to categorize atypical corporations.
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A szabályok és erkölcsi megfontolások bírói döntést meghatározó szerepe
Megtekintések száma:45Absztrakt nélkül.
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Terhelti védekezések jogi és pszichológiai szempontú értékelése az adminisztratív csődbüntett köréből
Megtekintések száma:97Psychology plays a main role in the criminal procedure, in which the people’s personality is very important to be investigated and known. The psychological methods started being used only in the 19th century. During the legal proceedings the authorities must deal with people. The behavior of the people is very different. The authorities must know the basic rules of the psychology to understand these different behaviors of accused people. The human memory has a lot of regularity. The knowledge of these regularities make easier the efforts of the authorities to get the truth. In the whole process of the investigation the most important fact to know is the personality of the person who committed the crime. When the suspected is being heard, different type of personalities can cause different final resumes. Therefore the importance of the psychological knowledge in the legal occupation is unquestionable.