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Lack of Balance In Contract Law: the State as Contractual Party
Views:257Contractual relations mean balanced cooperation between the parties. Right and obligations on both sides are equal. This seems to be a classic essential of contracts. As of many among the terms and condition in contract law, special situations clam for a different perspective. This essay is about a unique problem in contract law that origins from the ancient dilemma about the role of the state in private law relations.
State as a sovereign has original power and hierarchic connection to citizens. In the field of constitutional law, public administration law, criminal law it is necessary to transfer certain right to the state and allow it determining one-sided obligations that cannot be changed in a particular relation. The theory of state immunity failed in the 20th century in private law. Since jurisprudence makes a difference between the role of the state as a merchant and a sovereign, we cannot maintain the old immunity rights of the state anymore.
In the essay we examine three specific questions in connection with state participation in contracts. The first part of our study analyzes the strange legal arguments in a famous Hungarian case, called the Subway case. In this case the reasoning of the Supreme Court denied the balanced elements in a private contract and accepted a redefined theory of state immunity in private relations. Although there is a strong political content in the story and right after the criticized decision the Hungarian Civil Code was modified to clear the facts, we want to prove that even today state participation can cause interferences in the coherent theory of contracts.
A specific contract type is examined in the second chapter of the essay, the concession agreement. This contract is far from the balanced theory of party positions due to its unique nature and content. We emphasize many different aspects in mixing private and public law nature of provisions and rules. Concession agreement is an excellent example to demonstrate extra-rights on the side of the state.
Finally we spare some words on authority contracts in which state authorities can manage debates in public administration procedures with using the private law nature of contracts.
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A Debreceni Egyetem Állam- és Jogtudományi Doktori Iskola minőségbiztosítási tervének bemutatása
21-29Views:72Without abstract
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A diszkriminációmentes munkadíjazás alapvető sajátosságai az Európai Unióban
158-171Views:117Without abstract
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The connection between the work of the judicial experts and the public sector
27-41Views:120This is an essay about the connection between the judicial experts and the public sector. The expert opinion has a special role in the system of the envindeces in the criminal procedure. The expert opinion as a kind of evidence has a short history in the criminal procedure, because this evidence is the product of the new age. The second difference from the other evidences that the judicial expert needs a special quality, and because of this cause the law rules controls who has premitted to become expert and make expert opinion. The Criminal Procedure Act controls when should and when must delegate a judicial expert the criminal procedure. Consequently the state has a main role in connection with the activity of the experts by the law rules.
In the first part I show the short history of the appearance of the expert opinion in the criminal procedure.
In the second part I show the main law rules in connection with the judicial experts, and I write about the expert chambers, the list of experts, and the professional institutes and corporations.
The third part is about the fees and taxes in connection with the judicial experts. In this part I show the problems about who have to pay the fees in the end of the criminal procedure. The acitvity of the judicial expert is always expensive, so the expeneses can grow quickly. If the accused is acquited the expense will stay in encumbrance of the state, and if the accused is convicted, the accused will have to pay the expenses. So this expenses are enourmous encumbrances for everyone. This problem has waited solution yet. Reduction of costs or hunting out justice ? Sometimes very hard to decide, which one is the better. The judicial experts also work in the private sector. The competition of the judicial experts is big in the private sector, and this phenomenon is influences the private prices.
The end of the essay is a summary which contains my main conclusions.
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Re-Reading Hugo Grotius Reflections to Thoughts of „Father of International Law” in International Law of 21th Century
Views:68There are several theories when the birth date of international law was. Hugo Grotius (1583-1645) was the first who systematized these specific rules and raised it to a scientific level. In this essay I examine how Grotius thought about important institutions of international law and what kind of impact these considerations have to our modern age.
War cannot be seen only as an unlawful act, because most of the original human instincts can be recognized in fighting to each other. This point of view proclaims that international law does not denounce war generally. Existence of international law is important to determine the rules of warfare. To suit to the criterions of lawful war, a war should perform two requirements: opposite parties have to be main authorities in their state and both of them have to keep special formal rules during their fight. Main supremacy means that this power is absolute in its territory, so there are no other relevant human factors to limit it. In our age we have to mention that this criterion is no longer applicable without reservation, because the attack against USA on 11th September 2001 demonstrated that not only states can fight to each other.
Grotius gives importance to the reasons of war too. Three reasons exist: defence, regain possession and punishment. Defence means self-defence, which is a right for everybody to protect himself against unlawful injuries, but this solution has to be the last one. Self-defence can be applicable only if it is necessary, sudden and proportional. After the attack against USA a question was born: is it possible to protect before the real attack, when the enemy is in the period of planning an injury. This preventive self-defence is supported by USA, but UN appreciates the right to self-defence only if there is an armed attack against the state. According to Grotius reasons of war can be pretexts or real reasons. Fear of uncertainty can be a pretext for example, because it is not the most proportional instrument to avoid conflict.
Grotius examines not only ius ad bellum but ius in bellum, rights during a war. These regulations are formal obligations, which give frame to the lawful war and show direction to the opposite parties. Grotius says that there are regulations strictly from the law of nature. A great example is that every instrument can be applicable if it is necessary to reach the major aim of war. It is obvious that today this sentence is intolerable, because technical revolution created such weapons that have power to destroy a whole country suddenly. That is why certain prohibited weapons and methods of warfare exist in international treaties. Grotius deals with the problem of traitors, who support the enemy. There is a slight distinction between the nature of dispatched goods. If these goods can be used for fighting, i.e. weapons, traders are enemies too. If these goods are luxury ones, no traitors can be found. The third situation is more problematic, because if these goods can be used in and outside a war too, the exact situation has to examine to judge the intention of the party.
Groitus has interesting thoughts about prisoners. All prisoners and their descendants become slaves. It means the enemy can do anything against prisoners. By now we have certain rules how to treat with prisoners and it is a general regulation that torture and murder against prisoners is strictly prohibited.
An interesting question is in connection with the law of contracts. Hostages and pledge can be typical securities to strengthen a contract. Grotius says that killing a hostage can be lawful, but inner morals order that killing is lawful only if hostage is culpable too.
Grotius deals with the question of ministers, arranging debates. Looking through this huge work of Grotius we can say statement that he is the father of international law is not without basic and well structured reasons. Before the birth of his book, there were only rules and commentaries for national laws. Grotius extended them to a larger perspective, up to an international level.
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Limits of advertisements concerning the length and size of them
Views:130Advertising forms are considerable parts of economic activities, the costs of which constitute a growing portion of the expenses of a given enterprise. The mass-appearance of advertisements has altered the relationship between consumers and advertisers, it has restructured consumption habits and the importance of the advertising media. Advertising law defines the restrictions that have to be observed during business and advertising activities. The regulation of advertising is characterized by an approach focusing on content. However, in some cases the legislator also considered it important to determine the form of advertising besides its content. In the case of most advertising media there are only few regulations on form. The Media Act (Act I of 1996) dedicates a whole chapter to restrictions on advertising. The most important part of the Media Act is the regulation of the way commercials can be shown. The regulation of maximum advertising time, the type of programmes which are suitable for advertising and the period of time that can pass between commercials is given priority.
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A magyar területi államigazgatás fejlődése a rendszerváltástól napjainkig
Views:37Without abstract.
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Az egyenlő vagy egyenlő értékűként elismert munkáért egyenlő bért elv fejlődése az Európai Unió Bíróságának esetjogában
66-73Views:73Without abstract
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Momentbild über die Judikatur des Rechts am eigenen Bild 2. Teil
43-54Views:184Die Persönlichkeitsrechte, insbesondere das Recht am eigenen Bild stehen in den letzten Jahrzehnten im Fokus der Rechtsliteratur und der Judikatur. In unserer digitalisierten Welt ist die Möglichkeit des Missbrauchs von Fotos und mit dem Bildnis der Menschen bedeutend gewachsen, die Privatsphäre ist in Gefahr. Das Aussehen der Menschen – dessen Teil auch das Bildnis ist – ist die erstmalige Form der Erscheinung der Unterscheidung der Menschen in der Gesellschaft. Der Missbrauch mit dem Recht an eigenen Bild hat verschiedene Manifestationen: die Herstellung der Aufnahmen ohne Genehmigung, die Veröffentlichung und andere Verwendung der Fotos, die Modifizierungen der Aufnahmen ohne Genehmigung, weiterhin die Übergabe der Aufnahmen an andere Personen und das Abspielen der Aufnahmen.
Gemäß den Regelungen des Bürgerlichen Gesetzbuches ist zur Anfertigung und Verwendung eines Bildes oder einer Tonaufnahme die Zustimmung der betroffenen Personen erforderlich. Eine Ausnahme davon bilden die Massenaufnahmen und die Aufnahmen von Auftritten im öffentlichen Leben. Das neue BGB (Gesetz Nr. V. von 2013) hat die vorherige Judikatur in den Text des Gesetzes eingebaut, und betont, dass nicht nur zur Anfertigung, sondern auch zur Verwendung eines Bildes die Zustimmung der betroffenen Personen erforderlich ist.
Grundlegend ist die Aufgabe der Judikatur die Bestimmung der Grenzen der rechtsmäßigen und die unrechtsmäßigen Anfertigung und Verwendung der Aufnahmen. Die Rechtspraxis hat ausgearbeitet, was man unter Bildnis versteht, was die Voraussetzungen der Zustimmung zur Anfertigung eines Bildes sind, welche die Formen der Zustimmung sind, was man unter Massenaufnahmen versteht, und wann man über Aufnahmen von Auftritten im öffentlichen Leben sprechen kann.
Dieses Schreiben bietet ein umfassendes Bild über das Recht und die Judikatur am eigenen Bild, detailliert und analysiert die Rechtverletzungen dieses Rechtes und die Sanktionen der Verletzungen, und gibt einen Überblick der anderen Aspekte dieses Rechtes, insbesondere präsentiert es die Fragen der Anfertigung der Tonaufnahmen bei Zivil- und Strafgerichtsverhandlungen, die Vorschriften des Datenschutzgesetzes, und die Praxis der Beobachtung mit Kamera.
Der erste Teil dieses Schreibens wurde im Erinnerungsbuch für den 65. Geburtstag von Herrn Prof György Csécsy veröffentlicht und in dem zweiten Teil des genannten Schreibens stehen die Fragen des Datenschutzes im Fokus gemäß der Regelungen des Info–Gesetzes (Gesetz Nr. CXIII von 2011), und das Problem der Anfertigung der Tonaufnahmen an Arbeitsplätzen, an öffentlichen Plätzen, in den Massenverkehrsmitteln und in den Gesellschaftshäusern werden vom Urheber ebenso geprüft. Der zweite Teil des Artikels beschäftigt sich mit den speziellen Regelungen der Zivilprozessordnung, und macht die wirksame Normen des Abschnitts von XXI/A der Zivilprozessordnung (Gesetz Nr. III. von 1952), die Anomalien der Bildnis-Verfahren bekannt, auch mit Rücksicht auf die neue Prozessverordnung (Gesetz Nr. CXXX von 2016).
Am Ende des Artikels hat der Urheber festgesellt, dass die gesetzlichen Regelungen über den Schutz der Rechte am eigenen Bild einheitliche Judikatur ermöglichen, mit Rücksicht darauf, dass die Rechtspraxis bei der Auflösung der Rechtsstreiten die bürgerrechtlichen Aspekte betont, wo die verfassungsrechtlichen, datenschutzrechtlichen Aspekte im Hintergrund stehen. Der Artikel kritisiert die Einführung und das Anbehalten des speziellen Prozesstyps, d.h. der Bildnis-Prozess.
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Comparison between the requirements of the Court of Justice of the European Union and the Hungarian judicial practice in terms of equal treatment and/or the breach of thereof in the field of labor law
Views:236Employment 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.
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Stations in legal history of error; focused on Nándor Bernolák’s thesis of error
Views:50I examine one of the grounds for the preclusion of culpability and grounds for the termination of culpability: error. Grounds for the preclusion of culpability are the followings: infancy, abnormal mental condition, constraint and menace, error, negligible degree of danger to society of an act, self-defence, extreme necessity (emergency), absence of private motion, other grounds defined in the Act. Grounds for the termination of culpability are: the death of the perpetrator, prescription, remission, cessation or becoming negligible of the dangerousness for society of the act, other grounds defined in the Act.
Grounds for the preclusion of culpability and grounds for the termination of culpability mean that culpability shall be precluded.
Error - as an obstacle of the preclusion of culpability – is not as usual as other grounds for the preclusion of culpability, for example: insane mental state, constraint or menace. Error means - 27. § of the Hungarian Criminal Code – that the perpetrator shall not be punishable for a fact of which he was not aware on perpetration. The person, who commits an act in the erroneous hypothesis that it is not dangerous for society and who has reasonable ground for this hypothesis, shall not be punishable. Error shall not exclude culpability, if it is caused by negligence and the law also punishes perpetration deriving from negligence.
I examine error’s ruling from Roman law to now days. One of the most important books was written by Nandor Bernolak: The Error doctrine. I succeeded Bernolak’s method to search how error was regulated in different ages. Bernolak wrote his essay in 1910, so he described the rules of error as it appeared in Code Csemegi. I follow his method during the examination of 1950.:II. Criminal Code of General Part, 1961. IV. Criminal Code and finally 1978. IV. Criminal Code.
I found many differences and similarities between Criminal Codes, Propositions, and finally I compiled a table about the changes of the development in error’s legal history.
There is a rule that is known generally from Roman law: „ignorantia facti, non iuris excusat”, which means: ignorance of the law means no excuse.
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Cross-Border Mergers and Acquisitions in Light of the European Legal Framework
1-12Views:150This paper will discuss the role that Mergers and Acquisitions play in the global economy. It will deliberate on the challenges, benefits and issues of the implementation of these transactions in terms of legality, society and culture. It also contains an empirical enquiry that investigates the application of Mergers and Acquisitions in the presence of different social and cultural working environments. It also demonstrates attempts of entering into such transactions with incorrect intentions such as domination and the negative outcomes of such approach.
Throughout this work, I will investigate the legal instruments governing these types of transactions in different areas of the world, specifically the European Union. It will touch on the legal instruments governing Mergers and Acquisitions in the European Union and will challenge the applicability of the fundamental freedoms of the European Union in light of the cross-border Mergers and Acquisitions directives. The paper will challenge the European Court of Justice’s approach to the Freedom of Establishment and the application of cross-border M&As.
Finally, a clear demonstrateion of the fallbacks of the provisions of the Cross-Border Mergers Directives is provided as well as challenging the European legislature’s choices in drafting said directives. Unusual discrepancies between the directives and the fundamental freedoms of the European Union are shown, however these two which must always be in line with one another.
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The evolutive interpretation of the Strasbourg Court and the European consensus
32-39Views:44The European Convention on Human Rightsin collaboration with the European Court of Human Rights created a jurisprudence which is simply the most effective system in international human rightsprotection. Based on the Convention’s Preamble, European countries intend to create a common European legal system and develop the cooperation between the “likeminded European countries” through the common heritage of democracy and the rule of law. Keep pace with the needs of present-day society would be difficult for the Court, but using the principles of interpretation of the Convention, the court seems to be able to maintain a balance between development and stability.With the use of evolutive interpretation, the Convention is a so-called living instrument which means that the Court interpret the document according to the present-day conditions. Based on this assumption, I wish to examine the principle of evolutive interpretation adopted by the Strasbourg Court, which has a major role in the so-called European consensus. In the first part of the essay, I discuss the types of consensus-analyzes using by the Strasbourg court, and later I scrutinize the historical aspects of the evolutive interpretation and its practical relevance in the Court’s case-law. After that, I analyze the justification of the principle and I mention the criticisms formulated against the evolutive interpretation. Finally, I consider that the purposes about the closer union among the European countries established by the Preamble and the effective protection of human rights could not occur without the implementation of evolutive interpretation
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Constitutional processes, a comparative study of the Hungarian constitutional processes (1989-2011)
Views:145In 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.
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Possibilities of mediation in the criminal procedure with the eye of a labour lawyer
Views:37Mediation or agreement between perpetrator and victim in criminal law is a special form of damage reparation. Contrary to the simple reparation – where is no need to have a formal contract between the parties – mediation means a meeting between the parties to make an agreement that suits to both of them.
Development of mediation in criminal law has its roots in the birth of diversion. It was a formal legal procedure to rebuild the injured legal system and repair damages. The first programs of mediation have appeared in Canada and the United States.
Differently from the conciliation in labour law authorities have to define guidelines about forms of procedures outside the trial, about the process and modes of harmonization to preserve the prestige of state’s power of punish.
In the mediation process competence of making decisions are in the hand of the parties too. Parties have to order upon the agreement. This extra-jurisdictional form of agreement means that the potential victim gives up his right to accusation. This agreement frees the perpetrator from the criminal liability.
We can say that fundamental principles of mediation are the same in any fields of law, but mediation in criminal law has the most interesting and numerable specification because of the state power.