Keresés

Keresési eredmények

• Néhány gondolat a szoftverek szabadalmazhatóságáról

  Petkó Mihály

  Megtekintések száma:

  45

  I’m presenting in my study the Hungarian software’s legal system. The Hungarian law system is protecting the software in the copyright law, like a literary property. This resolution given more latitude for the author, but it has many problems of the evidence, because not registred the property – like the patent – cause the author’s being can prove difficultly.

  In the patent law has not problem with the evidence thanks for the state register, but the legal process longer and costly more money. Primarily the Hungarian patent law is protecting the industrial, technical property. The software not an exclusively industrial, technical produce, there is closer the literary property about the author’s intellectual work.

  The protection of the Hungarian copyright is cheaper and faster than the protection in the area of patent law, and it covers more contract liberty for the partners. The Hungarian civil law is based upon the monist conception in the field of intellectual property. This means that pecuniary and personality rights are indivisible. In spite of this competition on the market prefers contracts that ensure exclusive, unambiguous rights. This area of law claims contracts suit to these conditions.

  The personal rights in the Hungarian copyright are remaining for the author, also the pecuniary rights. But - thanks for the successful software’s lobby - in this question the regulation diverged: the pecuniary rights may be transferring for the users, costumers. This regulation is better (cheaper, an easier) for the buyers under the Hungarian regulations of patent law.

  In Hungary a lot of software contract was established under the British legal system. The Hungarian legal culture accepted and using these contract forms. The Hungarian regulation concerning to the software questions is dualist like the British one. The pecuniary rights can be transferred free, just the personality rights belong to the author.

  The users can buy the rights need for using and it gives enough defense as a shield. The author’s interests are not sweating because of the personality rights stay under his domain.

  In my opinion the question is whether the Hungarian legal defense equally serves the author’s and the users’ interests. The process in patent law is longer, needs more money for supporting the protection and there are some conceptual problems between the software and the patent ideas. The new regulation is not reasonable.

• A nemzetköziesedés jelentősége a felsőoktatásban

  Kőmíves Péter Miklós

  Megtekintések száma:

  141

  The internationalisation of the Hungarian higher education has a crucial role in the overall operation of the Hungarian higher educational system. The increasing presence of the international students at the Hungarian universities can alleviate the negative impact of the demographic decrease of the secondary students’ number in the country and can help the higher educational institutions to secure their needs in order to sustain their operation – mostly in an economic way.

  Several dilemmas emerge with the internationalisation of the higher education globally. One of these problems is the provision of the equal access to international higher education. If the equal access is not provided – and honestly this is the actual situation in most of the countries – than the differences in the social background of the students can have a great impact on the international education possibilities. Those students who have the possibility to study abroad can earn that much benefits during their education which is unavailable for those students who can only learn in their home countries. This tendency with respect to the cultural reproduction theory can widen the gap between the different social groups and so called social classes based on economic but not knowledge or talent differences.

  One of the most important elements and prerequisites of the successful functioning of the international higher education is the effective and suitable legal background. Hungary as a member state of the European Higher Education Area and of the European Union have several benefits from its memberships because this institutional and legal background will make the diplomas issued by Hungarian universities accepted in several countries. The international comparability of the knowledge incorporated by the Hungarian diplomas can be granted by the harmonisation of the different acts and the legal systems of the member states. The Hungarian results on this field are impressive.

  Based on these information we can analyse the importance of the international higher education in case of the labour market. One of the leading occupation tendencies in the 21^st century is the internationalisation of the labour market. The companies are trying to employ the best workforce available on the labour market and the lack of suitable workforce pushes them to find the suitable employees abroad – or on the domestic universities and they have much more possibilities if international students are also studying there.

• Szerzői jogi szankciórendszerünk a szellemi tulajdonjogok érvényesítéséről szóló 2004/48 EK irányelv tükrében

  Kiss Tibor

  Megtekintések száma:

  76

  Copyright law is a relative young area of civil law. Intellectual property and creations ensure the revelation of human personality. The infringement of these rights became general with the development of technology. From the beginning copyright law tried not only circumscribe the possibilities of unrestricted use but ensure effective protection to authors with exact sanctions.

  In the essay I examine the international and Hungarian regulation against usurpation demonstrating all sanctions and opportunities. Not only one area of law gives protection to these rights. Civil law, criminal law and administration law has different sanctions for infringements.

  On 29th April 2004 2004/48/EC directive has been accepted about validation of intellectual property rights. The explanation of this directive is that different regulations in member states endanger the unified internal market. The directive consists of the rules of proceedings and sanctions.

  In this study I present the development about system of sanctions form an international and from a Hungarian perspective. I examine all types of sanctions concerning to the field of civil law and try to analyze functions and aims in connection with them. The effectiveness and history of these legal institutions are also presented in the study.

  Comparing the directive and the Hungarian copyright law it can be said that despite of all circumstances the Hungarian law has to be improved especially on the field of proceedings and temporary arrangements. These rules are specified compared to the ones in the Hungarian civil procedure, so judges have to take care of these differences.

• A büntetőjog normalizálódása és az abolíció eszméjének térhódítása Magyarországon: a halálbüntetés szabályozása a ’60-as évek elejétől a ’80-as évek végéig

  Tóth J. Zoltán

  Megtekintések száma:

  80

  The capital punishment was poena ordinaria throughout the history of Hungary. Nevertheless, it was applied most frequently not in the Middle Ages, but in the 20th century. There have never been so many legal executions in our country, than during the World War One and Two, however in lack of reliable statistical data the precise number of the death penalties is not known even in recent years. There were numerous death penalties imposed in the Fifties as well, mainly in the years of retaliation after the Revolution of 1956. Only in 1961 did the situation get back to normal, when implementation of martial law stopped for good and all. In this year the Parliament of the People’s Republic of Hungary passed the Act V of 1961 on the Criminal Code that permitted the infliction of the death penalty for altogether thirty-one criminal offenses (for nine crimes against the state, two crimes against peace and humanity, eight military offenses and twelve common offenses), but this sanction in no cases was qualified as compulsory, the judge had the possibility to impose an imprisonment sentence for 10-15 years in each times. The Criminal Code’s Amendment, the Law Decree No. 28 of 1971 reduced the number of the crimes punishable by death to twenty-six, although a new capital felony, seizure of aircraft, was introduced as well. In 1978 a new Criminal Code, namely the Act IV of 1978, was drafted in which death was also ordered for twenty-six offenses, of them for a new one, Act of Terrorism. Meanwhile the number of the death penalties carried out persistently decreased (in the Sixties there were 129 executions, in the Seventies there were 47 and in the Nineties there were 32). However, the process of the abolition actually started only in 1983 when a conference was organized by the Hungarian Lawyers Alliance to discuss the future of the capital punishment in the Hungarian criminal law. Nevertheless, the Hungarian abolitionist movement gained strength in deed when the League Against Capital Punishment was formed in 1989. In the subsequent year the League asked the newly established Hungarian Constitutional Court to declare the death penalty unconstitutional on the ground that it was contrary to the right to life protected by Article 54 of the Hungarian Constitution. Eventually this happened in 1990 by Constitutional Court Decision No. 23-AB of 31 October 1990. From this time the practice of capital punishment is irrevocably forbidden in Hungary.

• A szennyező fizet elvének megjelenése a magyar polgári jogban, különös tekintettel a veszélyes üzemi felelősség kérdéseire

  89-106

  Sztancs Edit

  Megtekintések száma:

  84

  The polluter pays principle is one of the basic principles of international environmental law
  mentioned directly firstly only in 1972, however the principle were declared in 1929 in the
  well-known Trail Smelter Case. The polluter pays is an economical principle, and in the
  meaning of this principle the costs of pollution shall be shared between industrial companies
  and consumers. Taking into consideration that after applying this principle price of products
  will be higher than before, industrial companies shall reduce their pollution in the interest of
  their (and their products’) competitiveness. Seeing the development of the principle in EU
  level, the polluter pays were mentioned first time in the first „programme of action of the
  European Communities on the environment” adopted in 1973. However it is questionable
  what polluter, pollution, obligation of polluter and costs of pollution mean exactly, and for
  this reason this principle cannot be applied automatically.
  In this study I try to examine how the polluter pays principle works in the Hungarian national
  law, especially in the Hungarian Civil Code. For this reason I examine the applicability of
  Article 345 of the Hungarian Civil Code („Damages Originating from Hazardous
  Operations”), with special regard to the case-law of the Hungarian civil courts. I also try to
  introduce the possibilities and obligations of the public prosecutor in environmental issues.

• „Egészen uj csődosztályzati projectum”: A csődjogi szabályok helyreállítása az Ideiglenes Törvénykezési Szabályokban

  66-77.

  Pétervári Máté

  Megtekintések száma:

  116

  Az 1848-49. évi szabadságharc bukása után a neoabszolutizmus jelentősen átalakította a magyar jogrendszert, mivel az Osztrák Császárság jogi egységesítése céljából az osztrák törvénykönyvek bevezetésére került sor. Ferenc József az Októberi Diploma kiadásával enyhített a korábbi abszolút kormányzati felfogáson, valamint visszaállította az 1847 előtti magyar közigazgatási és törvénykezési szervezetet. Ennek keresztülvitelével az újonnan kinevezett országbírót, gr. Apponyi Györgyöt bízta meg, aki ebből a célból egy tanácskozást hívott össze. Ez a gyűlés a magyar történetírásba Országbírói Értekezlet néven vonult be, amely rendelkezett a magyar bíróságokon alkalmazandó joganyagról.

  Jelen tanulmányban ezen tanácskozás csődjogra gyakorolt hatását vizsgálom, amelynek keretében bemutatom az Országbírói Értekezlet e jogterületre vonatkozó rendelkezéseit és a gyűlésen készült jegyzőkönyv alapján a szabályozás „mozgatórugóit”. Az osztrák ideiglenes csődrendtartás helyett ugyanis ismételten hatályba léptették az első magyar csődtörvényt, az 1840:22. tc.-et. A szakirodalomban ennek kapcsán jellemzően csupán az jelenik meg, hogy az Országbírói Értekezlet a polgári korszak változásaihoz idomította a törvénycikk anyagi és alaki szabályait. A tanácskozás résztvevői által kifejtett álláspontok és levéltári források ismertetésével szemléltetem, hogy a módosítások ennél komolyabb változásokat generáltak. Emellett a csődönkívüli kényszeregyezség első magyarországi megjelenése is a neoabszolutizmus korszakához kapcsolódott, amelyre szintén reagált a magyar jogtudomány színe-javát felvonultató értekezlet.

• Pillantás a dán névjogra

  Megyeri-Pálffy Zoltán

  Megtekintések száma:

  32

  In Denmark until around 1850-1870 most ordinary people used patronymics instead of surnames, however, in 1812 the Danish government passed a law requiring families to choose a fixed surname that future generations should continue to use. In 1826 patronymics were abolished by law. It took several decades for patronymics to disappear.

  Constantly changing names had given reasons for this regulation. The patronymics (as family names) were not favourable for property circumstances and registration.

  Today the Danish name system bases on the Danish Act on Names. This act contains regulation of last names, middle names, first names, procedure of giving names and the changing of names, private international law relations and penal provisions.

  This Danish act is very permissive, because it allows using traditional patronymics and in the same time encourages individuals to choose a new surname. So a name which is not used as a last name in Denmark can be adopted as a last name but some conditions must be effective.

  In Denmark last names borne by 2,000 individuals or less are protected and cannot be adopted by other individuals. This is an unusual form in protection of names.

  There is a lot of similarity between Hungarian and Danish right of name, enough to think about the first names. Either in Denmark and in Hungary a first name cannot denote the opposite gender in relation to the individual who will bear the name. There is a list of names for boys and girls, which is identical with the Hungarian list of first names compiled by Hungarian Academy of Sciences.

  Why can this Danish act be interesting for a Hungarian lawyer?

  In Hungary the regulations of names were very scattered, so the rules were on every level of the sources of law. Since 2004 this situation is not so unfavourable, but we still do not have one unified act on names as it is in Denmark. So the Danish act can be a good example to examine how we can establish a similar unified regulation in Hungary.

• Egyenlő munkáért egyenlőtlen bér – avagy mennyire értékteremtő a közfoglalkoztatási bér?

  Sipos Marcell

  Megtekintések száma:

  118

  The aim of this paper is to scrutinise the wages in the Hungarian public work programme – probably the most controversial anomaly of the Act CVI of 2011 on public work and the modification of the act on public work and other acts. Furthermore, the study analyses the effectivity of the value creation in this programme and exposes the passive sight of the public work.The paper identifies the public work programme as a hybrid contract of the Hungarian labour law and detected the social side of this kind of legal instrument of the active labour market policies. The research also focuses on Order no. 3175/2016 of the Hungarian Constitutional Court and highlights the discriminative dangers of the wages. To emphasize my opinion I set the European Pillar of Social Rights in the middle of the research and concluded that the national regulation is not even enough to create effective reintegration to the primal labour market. In my opinion, to increase the effectivity of this program, we need to use the principles of the Social Pillar and the national labour law system. The conclusion of the paper can be a possible way to highlight the value creation in the public work programme.

• A fizetési meghagyás kibocsátása iránti kérelmek közjegyzői vizsgálata

  14-20

  Ferenczi Fanni

  Megtekintések száma:

  121

  2010 marked the opening of a new chapter inthe more than 120 years history of the Hungarian order for payment procedure. Breaking with the Hungarian traditions, the notaries became competent to carry out these procedures instead of courts. The Hungarian Chamber of Civil Law Notaries established an accessible web-based computerised system for support of procedures. The registration of requests, the assignment of cases to notaries and the administrative handling of cases are carried out through this electronic network. The legislator’s aims when modified the regulation of this legal instrument was to reduce the duration of order for payment procedures and the workload of courts. In this paper I give an overview of the content of order for payment requests and of the practical experience of the notaries in connection with the examination of requests.

• A Digitális Egységes Piaci Stratégia szerződési jogi hatásai a magyar polgári jogra

  108-120

  Árva Máté

  Megtekintések száma:

  124

  The necessity of framing contract law fulfilling the expectations of the digital era is among the main purposes of the Digital Single Market Strategy, that has been introduced by the European Committe in 2015. Within the Strategy two directive proposals have been presented: the directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content and the directive of the European Parliament and of the Council on certain aspects concerning contracts for the online and other distance sales of goods. These include the concept of conformity with the contract, the meaning of which raises several questions to be answered regarding the Hungarian legal system.

  My treatise focuses on the investigation of the criteria of conformity with the contract with special regard to the definiton of the directive proposals. In the first place I outline the elements of conformity with the contract, then I attempt to create a comprehensive definition of it. Thereafter I analyse the rules of the Hungarian Civil Code that are connected to the category of the conformity. Furthermore, I investigate the necessity of the integration of the conformity with the contract into the the Hungarian civil law. Finally, I present a future legislative concept that could be regarded as a possible way of adaptation of this legal category.

• A munkajog területén megvalósuló egyenlő bánásmód követelménye, valamint megsértésének módjai az Európai Bíróság és a magyar bírói gyakorlat tükrében

  Duró Edit

  Megtekintések száma:

  236

  Employment and occupation are crucial to ensuring equal opportunities for all and in large measure contribute to the full participation of citizens in economic, social and culture life. However, many cases of discrimination have been identified in the field of employment and the labour market.

  In this study I try to examine how the equal treatment works in the EU Law and Hungarian national law, and I try to present the case-law of the European Court of Justice and the Hungarian Courts in this area. The first part of the study deals with the definition of key concepts (direct discrimination, indirect discrimination, harassment), and include its legal background – with respect to the directives of the European Parliament and the Council, and the Hungarian legislation. The second part tries to describe the legal concept of indirect discrimination, mentioned as justification (statutory derogation, objective justification). And finally I try to present the special burden of proof, which is used in discrimination cases.

• Hivatalrendszer az Oszmán Birodalom magyarországi peremvidékén

  69-74

  Vásár Szilvia

  Megtekintések száma:

  52

  My essay is on the development of autonomy of the country-towns and the changes of their relationship with the Hungarian county, the land lords, and the Turks. My research is based on the analysis of original account books of Debrecen and Nagykőrös. The situation of these towns was special in the 17th century, among other things, because of their geographical location. Debrecen situated at the border of the three big powers and Nagykőrös placed inside of the Turkish Empire. Later the country-town leaders were able to pay the cost of autonomy. The county administration system disappeared in the Turkish territory, but the functions of it were continued. For example the assembly of Pest county was hold in Fülek which was outside of the county. The administrative bodies of the counties worked according to the old Hungarian regulations. Turkish ruling was considered temporary. It was hard to keep contact between the county and the towns. It was one of the reasons of establishing municipal self government. These towns regularly paid tax to the Hungarian land lords and a higher amount to the Turks. The land lords who escaped from the Turkish territory were still in power. The towns paid the tax to the lords in a lump sum. The lords didn’t exercise their power. The town leaders recognized this situation and reached economical and later political autonomy that was very expensive. After the end of Turkish ruling the counties (re)expanded but the local self governing system was maintained.

• Ítélkezési állandók és vitás kérdések az erkölcsi kártérítés újabb magyar joggyakorlatában

  Fézer Tamás

  Megtekintések száma:

  54

  Since 1992, date of Constitutional Court’s decision No. 34/1992, certain rules cannot be found in Hungarian Civil Code. There is only a part of a sentence that gives right to any injured person to claim damages in case of personal injuries. More than 10 years after the cassation we are able to look through the legal practice in connection with damages for non-pecuniary loss. The recent re-codifying process plans a brand new institution to substitute and follow damages for non pecuniary loss: pain award. To establish a decent regulation of pain award, jurisdiction of the last decade cannot be neglected. This essay aims to gather typical and crystallized methods of judgements in certain cases, which could be seen as essential and accepted unwritten rules of jurisdiction concerning this field of damages.

  One of the most difficult problems to solve is the question of amount. This field of damages for non-pecuniary loss is always problematic, because all of the cases are different. Although there are similarities between cases if we examine just damages themselves, but due to the difference of human personality it is almost impossible to give exact phrases and rules to help our judges. We can say that highest amounts are generated by assaults against physical integrity and life. Examination during a legal procedure concentrates on the stress caused by the injury, number of injured rights, age of the injured person and the durability of the harm. If the injured person contributed to the injury, it generates reduced amount of damages.

  Method of compensation is really simple for the first time. Hungarian legal system knows two different types for the method of damages: in kind or in money. Former one is inapplicable for non-pecuniary losses. If we compensate in money, there are two solutions: injured person can get the whole sum immediately or we can choose allowance as well. The adaptation of allowance is rather small in Hungary, in spite of the advantages this legal institution could offer. It does not mean res iudicata, so it is flexible and offers opportunity to adjust to changed circumstances in the future: both duration and amount of allowance could be changed.

  It is an interesting question whether personal circumstances of the misdoer could be examined when calculating the amount of allowance. The answer is not unambiguous. Civil law focuses on compensation for the injured party, not the punishment of the misdoer. In spite of this essential lemma, it is necessary to take into account the solvency of the defendant, if we want the plaintiff to get the adjudged amount really.

  Youth is not the only reason of allowance, sometimes old age could be a well-based legal ground for application of this method of compensation as well. It is really important to examine the personal circumstances of the injured party to choose between these two methods: which one serves the aim of compensation, moderation of lost joy of life the most.

  Civil Code precludes the possibility to apply both methods together for the same plaintiff. In my opinion the solution of German Civil Code (BGB) should be considered. BGB allows both methods together. It means that possibilities could be wider and fit better to the actual case and its circumstances.

   Although obligation of damages has two parties traditionally, in a legal procedure of damages for non-pecuniary loss this bipolar situation can be proven false. On the part of the misdoer it is an interesting question what kind of damages can be blamed the state. In Hungary we can meet rules order the responsibility of the state in the field of medical damages or damages for unlawful arrest and illegal imprisonment. Amounts of damages are the highest in these situations.

  On the part of the injured person an often argued problem the position of secondary victims’ claims. These claims are always problematic, because personality rights belong closely to the person himself and there is no possibility to inherit them. Hungarian Civil Code admits compensation for relatives only in case of injuring reputation of a dead person. There are several decisions in which courts admit these claims on the ground of their sui generis base. It is a decent solution, but because of the uneven jurisdiction it needs codifying.

  We can say that there are a lot of jurisdictional constants in Hungary in connection with damages for non-pecuniary loss. These are easy to collect and most of them are able to be codified in a strictly non-taxative style. But this examination showed that doubtful questions can also be found in Hungary especially the application of allowance, claims of secondary victims. To arrange these problems, starting point should be jurisdiction itself.

• Alkotmányozási eljárások Magyarországon (1989-2011)

  Balogh Éva

  Megtekintések száma:

  145

  In my research paper I study the Hungarian constitutional processes. The subjects of my analysis are three periods, namely the change of the political system in 1989, the constitutional attempts from 1994 to 1998, and the constitutional process between 2010 and 2011.

  The processes are examined on the basis of the two notions: “legality” and “legitimacy”. Under the concept “formal legality”, I mean the legal validity of the constitutional process; i.e. whether the constitutional process takes place in accordance with the current legislation. The concept of “legitimacy” has two aspects. On the one hand, empirical legitimacy investigates whether the citizens de facto accept the constitution and value it as respectable independently of the normative motives of its acceptance. On the other hand, normative legitimacy examines whether the constitution is based on justifiable principles and whether it might be considered as legally binding.

  The constitutional process in 1989 - aimed at establishing a democratic transition – took place within round-table discussions of the representatives of the old system and the strengthened opposition. As a result of the radical changes, the democratic Constitution was established in Hungary and the multi-party system also developed. The outcome of the discussions was the general supervision of the Constitution. Formally, there was only an amendment to the Constitution in 1989; however, as regard its content, a completely new norm was established.

  Since the change of the political system in 1989, the idea of creating a new constitution emerges again and again in the Hungarian public life. In the course of the elections in 2010, a party alliance (in which both parties represented the same political line) reached the required two-thirds majority in the Parliament, and aimed at establishing a new constitution. The result of the constitutional process is a completely new constitution (both the form and the content of the previous constitution were changed).

  All things considered, it can be stated that the amendment to the Constitution in 1989 was accepted lawfully by the Parliament of the old system, i.e. the constitutional process was legal, and in a normative sense, a legitimate Constitution was created. In 2011, the Fundamental Law of Hungary (Hungarian: Magyarország Alaptörvénye) was adopted on the basis of the procedure determined by the Constitution in 1989, i.e. the constitutional process was legal, though; the present research paper highlights some elements of the constitutional process that might be criticized. At present, the legitimacy of the Fundamental Law of Hungary is controversial from both sociological and normative perspectives.

• A tisztességes eljáráshoz való jog az Emberi Jogok Európai Bírósága Magyarországgal kapcsolatos gyakorlatában, különös tekintettel az ésszerű határidő követelményére

  31-41

  Nagy Anita

  Megtekintések száma:

  123

  As for the right to a fair trial sanctioned by the convention, our most determining deficiencies arise regarding the compliance with a reasonable period of time. Despite of the relatively small number of the Hungarian infringements of the European Convention on Human Rights, the expectation of sufficiently efficient dispositions eliminating the prolongation of the judicial procedures applies for Hungary as well.

  In general, it can be concluded that the Hungarian legal system provides the basic human right to fair trial. This claim is supported by the low number of infringements in Hungary. In this study I sought to present the data related to the Hungarian cases proceeding at the European Court of Human Rights, as well as elementswarranting the emergence of the right to a fair trial assured by Article 6, together with the aspects during the monitoring of the cases of the prolongation of the judicial procedures respected by the Court of Strasbourg. Finally I aimed to delineate the aforesaid apropos of a representative and an exceptional case in respect of the practice of the Court as well.

• Előreláthatósági klauzula a szerződések jogában

  Csécsy Andrea

  Megtekintések száma:

  57

  The essay is about the clause of foreseeability in connection with damages for breach of a contract. This seems to be a constant problem throughout the history of law how and when it is reasonably to limit the amount of damages in case of breach.

  The general principle of full compensation originates in the main purpose of private law, restoring the violated financial situation. At the same time in business relations it often happens that damages occurred as consequences of breach highly exceed the contractual interest of the party and generate indirect damages independent from the violator’s influence. This is considered to be the starting point of the dilemma about restricting the damages availably for compensation.

  Full compensation and its relation to breach of a contract occurred in the Hungarian jurisprudence many times. Miklós Világhy suggested the reconsideration of full compensation in contract law in 1971. Attila Harmathy also suggested the implementation of foreseeability clause in the rules of contract law as the ‘best possible way to treat business relations between the parties’.

  Due to the historic and social differences various forms of foreseeability are known in the legal systems.

  The study examines the development of foreseeability, its first codification in the French Napoleonic Code Civil, its application in the law of the USA and some significant sentences of English courts. The first application of foreseeability was in the infamous Hadley v. Baxendale case, in which an English court worked out the meaning of contemplation rules. In the case of Victoria Laundry Ld. v. Newman Industries Ld. (1949) the court defined the meaning of foreseeability. According to the sentence of the case damages are limited to those that were foreseeable for the party at the time of entering a contract. The study also analyzes the German model of restricting damages of breach. The German theory ensures the possibility of exoneration for the violator if the other party failed to give proper information about the unusual danger of breach in the particular case. If the entitled party acted intentionally, the German law accepts exoneration. The essay demonstrates the adequate causality conception of the German law. This theory states that an act can only be the probable cause if – due to the normal and reasonable procession – it is able to cause such consequence. In our opinion foreseeability gives a stricter and much better solution of restricting damages with a more objective measurement for the obliged party on how to calculate his behavior in a certain contractual relation. The amount of risk can be predicted if the rules of damages for breach are based on foreseeability rather than adequate causality.

  The new Hungarian Civil Code plans to establish objective liability in contract law. The only exoneration can be the successful reference to unavoidable external cause. Beside this stricter liability the new Civil Code also introduce the possibility of limitation in damages, the application of foreseeability clause. This seems to be a significant preference for the obliged party. As in the Hungarian legal history foreseeability clause was never used, it is an essential question how judicature will interpret the rule in practice. In our opinion for an adequate application of the new clause it is necessary to take a closer look at the United Nations Convention on the International Sale of Goods (CISG), the Principles of European Contract Law (PECL) and the interpretation in the American and English case law. This study tries to give some help for it.

• A „távollétes ügyek” egyes elméleti és gyakorlati kérdései a büntetőeljárásban

  Tarr Ágnes

  Megtekintések száma:

  56

  The idea of simplification of the law of criminal procedure has been an interesting topic in the science of law for a long time. Practical necessities, namely the overburdening of the criminal courts and the new challenges of the criminal law called this concept into life. Finishing up a procedure in a reasonable time limit is a very crucial interest – as it was pointed out several times by the Council of Europe, Committee of Ministers and also the Hungarian Constitutional Court. As the international principle declared in the Human Rights says everyone has the right to plead its case within a reasonable period and it can only be achieved that way.

  Because of the reasonable time limit required for a procedure, various simplifications of methods have been introduced into the national systems of criminal procedure. As a part of this process several legal institutions were introduced in the Hungarian law system aiming to accelerate the legal procedure. One of them, which is called special procedure against absent accused, is regulated by Chapter XXIV. of the Law of Criminal Procedure.

  This essay deals with this special procedure in details. Firstly I show through a short international outlook how the procedure against absent accused appears in the practice of the European Council and the European Union. Hereafter a certain case is examined in details where the European Court for Human Rights considered the necessity of the accused person’s appearance. The Court established a principle if the absence of the accused had hurt the requirements of the fair trial. According to this the appearance of the accused person is necessary if it could play a role in the forming of the Court’s opinion.

  Next, I examine the problems connected to the Hungarian regulations because recently serious constitutional worries have appeared related to this legal institution. As a result of this the Constitutional Court made its decision (n. 14/2004) and found many paragraphs of the then existing legal institution unconstitutional. Based on this Decision I go through in details all the problems and requirements related to this procedure. In the light of this, the regulation effective from the 1^st of January, 2005 is described, which – according to my opinion – meets the requirements made by the Constitutional Court, so it is exceptional and provisional.

  In the next chapter certain practical experiences of the procedure against absent accused are examined. Here it is stated that the application of this legal institution is the rarest among the legal institutions aiming the acceleration of legal procedures. I explain it by the fact that this is a relatively young legal institution and there was not enough time since it was introduced to give certain conclusions, moreover the application is limited concerning the range of individuals. As a conclusion it can be stated that the application is more common in those cases where the accused is abroad but does not stay in an unknown place. I call the attention to some problems emerged in the practice as the protection of the accused, or the delivery of the copy of indictment and summons, etc.

  As a final conclusion it can be stated that using this legal institution is not so common but the importance of this will increase in the future by joining to the EU because of the easier way of crossing the boards. Hopefully the regulation, which suits to the requirements of the Constitutional Court, will be proper to gain its original aim, namely to simplify and accelerate the legal procedure.

• Családon belüli erőszak egy irodalmi mű alapján. (Móricz Zsigmond: „A világ végén már szép és jó”)

  66-76

  Pápai-Tarr Ágnes

  Megtekintések száma:

  500

  In my study I am going to present a rather complicated issue, namely a few problems of domestic violence based on a less-known short story by the Hungarian writer Zsigmond Móricz. I chose this story because it is still relevant today, it could even be set in 2017, as it basically depicts domestic violence in its complexity. This story by Móricz proves that the phenomenon of domestic violence is not at all new, given that in the beginning or the middle of the 20^th century we can see the same complex social problem which present-day criminal law has to face. Hungarian society 50 or 100 years ago was not exempt from domestic violence either. We may also claim that the factors enhancing domestic violence were even stronger than today. The story aligns several dimensions of domestic violence, as it shows examples of both child and wife abuse. I am going to analyse the crimes depicted by Móricz according to the criminal laws effective today, and I just tangentially touch upon the judgment of the offences in the age of writing. This way, first I analyse the questions of child abuse, focusing on the right of punishment, which is still relevant in today’s criminal system as a cause for miscarriage. Then I present a detailed analysis of the bearing of case of partner abuse in the framework of violence in relationships, which exists in Hungarian criminal law since 2013.

• Gondolatok a pótmagánvádról

  Kardos Sándor

  Megtekintések száma:

  68

  In Hungary the new code of criminal procedure established a new legal institution to the Hungarian legal system: accessory private prosecution. This kind of private prosecution gives opportunity to the afflicted person to continue penal procedure in case of negative sentences from investigation authorities. If the prosecutor or the investigation authority stops proceeding or the prosecutor sets aside, withdraws formal accusation, afflicted person can substitute them during a penal procedure and has a right to claim the continuation of it. Our valid code does not limit the field of crimes this legal institution of accessory private prosecution can be applied. But there are some strict reasons, which limit this right of the afflicted person. If the investigation authorities neglected formal accusation because of childhood, death, prescription, clemency, prohibition of ne bis in idem, accessory private prosecution cannot be applied.

  Pros of accessory private prosecution can be found in the rights of afflicted persons. Criminal power of the state cannot be absolute, so we have to give the right for the injured to judge whether he insists on taking the responsibility of the perpetrator despite the opposite opinion of public bodies. This legal institution can help omissions of prosecutors to be remedied. Practicing this right depends on the stadium of the procedure. During the investigation period or the period of formal accusation reasons for accessory private prosecution are different.

  According to the new rules of the code, applying an advocate in the procedure is an obligation for the afflicted person. This regulation ensures that the structure of penal proceedings cannot be changed basically. In a normal procedure there is always a professional expert, the prosecutor on the side of accusation. That is why the code does not permit accusation without applying an advocate.

  Costs are interesting question in case of accessory private prosecution. In popular action procedures costs are paid by the state. When the afflicted person practices the right of accessory private prosecution, state pays in advance, but if perpetrator is acquitted or the court stops proceeding, costs should be paid by the private prosecutor himself. There are some rules to ease this burden for the afflicted person: if he has bad financial capacity and he can certify this circumstance, court can authorize him not to pay for the fee of the advocate.

  There is a special question in connection with accessory private prosecution: representation of the state. In these procedures the afflicted person is the state or one of the state bodies itself. There are two points of view to answer the question: who is authorized to represent the state as an accessory private prosecutor during a penal procedure. First we have to make difference between the injuries: if the injury is against the state while practising public authority, the injured party is the state itself. But if the injury hit the state as a civil legal entity, a possessor, the right to claim is in the hand of that public body, which was entrusted to handle the injured property. This theory means that in case of injuries against the public author state, only the prosecutor can represent it, so there is no chance for accessory private prosecution.

  The other solution for this problem has its starting point that in every crime against public property, accessory private prosecution can be applied. In this case the state can be represented by that part of it, which has interest. Although there are no jurisdiction in this question, because accessory private prosecution was established by the new code from 1st July 2003 after fifty years into the Hungarian legal practice. According to the regulations of the code, we can find the following sentence: afflicted person is whose right or legal interest was hurt or endangered by the crime. Analyzing this definition the argument can be read previously is decent for those situations, when we would like to find the legal representative of the state as an accessory private prosecutor.

  Accessory private prosecution is a good solution that fits to the new directions of law development, to increase rights of the afflicted person. Naturally, time needs to become a well-adopted legal institution in Hungarian legal system after half a century silence.

• Gondolatok az üzletrészek örökléséről

  Dúl János

  Megtekintések száma:

  73

  The article focuses on the successions of the business shares which are in the Hungarian limited liability companies. There are several changes because of the new Civil Code that affected this area although we have to examine the former regulation because of the period of validity, too.

  The succession law is the area of the law with whom every people has connection at least once in their life. The number of the legacies grows in which business shares can be founded because more and more people are participating in business societies.

  The new method of the regulation differs from the previous. The new Hungarian Civil Code (Act V of 2013) consists of not only the “classical” civil law (for example property law, law of contracts) but the family law even the business law. Before this there were two separate laws and because of this situation we have to examine the relation of these laws and their methods of regulations.

  Afterwards we study the state of the successors in the Hungarian limited liability companies. It diverges from the other companies because the limited liability companies are transitions between general and limited partnerships and joint-stock companies. There were more ideas how to regulate this company; at the end it has differences but not so significant.

• Felsőoktatási autonómia-viták, kérdések és válaszok a közigazgatás(tudomány) szemszögéből

  27-48

  Dr. Árva Zsuzsanna

  Megtekintések száma:

  63

  Bár az egyetemi autonómia mindig is nemzetközi és a magyar tudományos vizsgálódások középpontjában állt, hazánkban a felsőoktatási autonómia kérdéskörét legtöbbször a jogszabályi változásokhoz kapcsolódóan vizsgálta a jogirodalom. 2020-tól kezdődően több magyar egyetem is a modellváltás útjára lépett, amely egyben fenntartóváltást is jelentett. Ezen változások éles társadalmi, politikai és jogi vitákat generáltak, amelyek egyik központi kérdése az autonómia volt.

  A felsőoktatási autonómia nemcsak a magyar narratívában meghatározó, hiszen a viták új lendületet kaptak, amikor a kérdés 2022. végén nemzetközi kontextusba került. A magyar rendszer unikális jellegű megkülönböztetésének indokoltsága a tudományos irodalomban is sok kérdőjelt vetett fel, különösen az autonómia nemzetközi fogalma alapján és más európai, így például a holland példával összevetve. A tanulmány a megkülönböztetés indokoltságára kérdez rá az autonómia nemzetközi fogalmát elemezve, valamint a magyar jogi folyamatokat vizsgálja a fenntartói irányítás szemszögéből, és összeveti azt különösen a holland példával.

   

• A munkabérfizetés és munkabérvédelem alapvető kérdései a magyar munkajogi szabályozásban és joggyakorlatban

  27-37

  Kristóf Nóra

  Megtekintések száma:

  35

  The 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.

• Az előkészítő ülés és a bizonyítási indítványok szabályozásának jogtörténeti előzményei a hazai eljárásjogban

  67-94

  Németh János

  Megtekintések száma:

  58

  A hazai büntetőeljárásban a tárgyalás előkészítésének szakaszában közvetlenül a tárgyalást megelőzően megtartott előkészítő ülés alapvető céljai, hogy lehetőséget adjon a vádlottnak az ügyészség mértékes indítványát beismerő nyilatkozatával elfogadva befejezni az eljárást, egyébként pedig – amint annak neve is mutatja – hogy a vád és védelem számára lehetőséget biztosítson arra, hogy a bíróság előtt részt vehessenek a tárgyalás előkészítésében, és meghatározzák a későbbi bizonyítási eljárás fő irányvonalát. Annak érdekében, hogy megvizsgáljam annak az általános vélekedésnek az alapját, mely szerint az előkészítő ülésnek a hatályos büntetőeljárási törvényben történő ezen szabályozása példa nélküli újításnak tekinthető, az első, 1896-os bűnvádi perrendtartásunkig visszamenőleg áttanulmányoztam a kodifikált büntetőperrendtartásainkat és a kapcsolódó egyéb releváns jogszabályokat. Jelen tanulmányomban ezen vizsgálat eredményeit kívánom ismertetni, rámutatva arra a néhány szabályozási előzményre is, amely a jelenlegi előkészítő ülés jogintézményhez kapcsolódhat.

   

• A személyiségi jogok védelme a reklámtörvény tükrében

  Kiss Tibor

  Megtekintések száma:

  92

  There is a significant inconsistency within the domain of enforcement of inherent rights in the Hungarian regulation. The protection of the inherent rights is based on the section 75 of Act IV of 1959 (hereinafter: „Civil Code”), which provides that inherent rights shall be observed by everyone and inherent rights are protected by law.

  The lack of consistency can be led back to the difference between the provisions of the Civil Code and Act LVIII of 1997 on Business Advertising Activity. Under Section 85 of the Civil Code inherent rights may only be enforced in person.

  There are two exceptions to the above rule laid down in the Civil Code:

  • The legal representative of an incompetent person, or the relative or conservator of a missing person whose whereabouts are unknown shall be entitled to proceed in the protection of that person's inherent rights.
  • In the case of impairment to the memory of a deceased person, the relative and/or the person having been named as the heir apparent in the will of the deceased shall be entitled to file a court action. If conduct causing defamation to a deceased person (former legal person) infringes upon the public interest, the public prosecutor shall also be entitled to enforce this inherent right.

  The Act on Business Advertising Activity provides for several general advertising prohibitions and restrictions. Under Section 4 of this act advertising may not be published if it infringes personal rights, respect for the deceased or rights related to the protection of personal data. Under Section 16 of this act advertising control proceedings may be initiated upon request or ex officio. Based on the regulation of the Act on Business Advertising Activity advertising control proceedings may be requested by any person whose rights or rightful interests, or legal status is injured by violation of any provisions relating to commercial advertising activity. If the aggrieved consumer cannot be identified, or if enforcement of the claims is inappropriate considering the number of consumers injured, administrative agencies or non-governmental organizations providing for consumer interests shall also be entitled to initiate proceedings.

  When the regulations of the Civil Code on enforcement of inherent rights are compared with that of the Act on Business Advertising Activity, it can be established that provisions of the latter act are not in compliance with the provisions of the Civil Code. On the basis of the decision No. 1270/B/1997 of the Hungarian Constitutional Court, the inconsistency is not significant, the different regulatory of the mentioned acts is not unconstitutional. I take the view that in order to achieve consistent regulation the Act on Business Advertising Activity should be modified by prohibiting the advertising control proceedings initiated ex officio in relation to the advertisings which infringe personal rights.

• A kisajátítás helye új magánjogi kódexünkben

  Andorkó Imre

  Megtekintések száma:

  115

  The expropriation is a neglected legal institution in the Hungarian law, especially in the civil law. Although the expropriation usually appears in the civil law codes of the European states, it is ambiguous of the aspect of the civil law. However, it cannot be ignored that the civil law aspects of the expropriation are very important.In the civil law literature the expropriation is discussed either as the original way of acquisition of property or as the limit of the public property relations.My lecture is about the theoretical problems of the expropriation in the system of civil law. This article will provide an overview of doctrinal opinions about expropriation law in the delayed codification and in the new Hungarian civil law codex.