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• Rethinking principles of civil procedure - expectations and experiences:

  118-127.

  Tamás dr. Molnár

  Views:

  218

  The central topic of the present study is certain features of the principles re-regulated during the codification of the Hungarian Code of Civil Procedure. It can be said that the number and content of the principles have also become more concentrated as a result of codification.

  The Act CXXX of 2016 on the Code of Civil Procedure (hereinafter “CPC”) brought a number of conceptual changes, which can also be observed in terms of principles. The principles chapter of the CPC has been renewed, some principles that are not yet known in Hungarian civil procedure law have been laid down. The present study reviews these changes and also seeks to take a position on the content of the principles, with a separate examination of the Principle of Concentration of Proceedings, which has also been identified as a priority objective by the legislator.

  The paper analyzes the academic debates on the principles and attempts to answer whether the experience of the period since its entry into force has met some of the expectations for the reform of the principles. The study examines the changed regulations that have led to opposing views in the literature.

  An important topic of the study is that, in line with the divided structure of the proceeding, the court's intervention activities have also changed. This change can also be observed in the principles, as the Principle of Court's Obligation to Intervene has emerged as a new principle. Some features of the Principle of Truth-telling and Principle of Good Faith are also analyzed.

  The study seeks to shed light on the fundamental issues of civil procedure through foreign examples, in which certain elements of German legislation are mainly mentioned.

• Functions and interpretation of principles in the German contract law

  Andrea Csécsy

  Views:

  52

  To describe the functions of principles we can say that all of them are fundamental basis of an area of law. They declare or solve concrete debates between the parties. If there is a problem with interpreting of a rule in the civil code, judges has this helping hand. In Germany the development of principles in the field of contract law has a really unique historical root. At the time of BGB’s birth, the German Civil Code did not accept any exculpation under the rule pacta sunt servanda. Moral philosophers acknowledged that a contract as private interest of the parties needs special protection from the state. It is not only a personal relationship, because self welfare leads to welfare of the public. The law has to regulate this field and give instruments of protection for both parties to ensure peace and equality in the field of public relations and moral.

  After the First World War, Rechtsmark (German currency) had its deepest point in its history. The inflation was so high that the performance of a contract made before the war was absolutely unfair for the supplier. For the cost of one galloon gas anyone could buy the entire stock after the war. There was a too late and too small reaction from the state for this situation. An Act had been accepted in 1925 about revalorization. The main fault of this Act was the strict and very small applicability in the field of contracts. The regulations of it were applicable only for contracts with large economic potential.

  German jurisdiction had to solve the problem. The most difficult part of this process was how to dissolve the strict paradigm of pacta sunt servanda. Oertmann, a German legal expert created the collapse of the foundation of the transaction. It meant that changed circumstances deprive the contract from its ground, the need of the party. Anybody who signs a contract has a need and tries to create all conditions of that specific contract to harmonize with his or her needs and interest. In case of an essential change of circumstances this interest modifies and the original transaction became tremendously onerous for him or her. The doctrine of Oertmann was insisted on pacta sunt servanda, so after the change of circumstances the whole contract failed.

  Jurisdiction in Germany accepted Oertmann’s doctrine with a completion. Judges vindicated the right for themselves to modify the contract to be suitable for the new interests of the parties. This modification meant the implementation of clausula rebus sic stantibus into German contract law. It became applicable worldwide in the field of long term relationship of the parties.

  In this essay I examine not only the development of these contractual principles in Germany but the effectiveness and functions of them. I describe and define the legal interest of regulating contracts and what is the connection between private and public interest in the field of the law of contracts. As a defect of the contractual procedure non-performance and other breach of a contract have special importance in civil law. Good faith is a basic principle of civil law in Hungary too and in most European civil codes. The interpretation of German good faith theory (Treu und Glauben) is significant from the viewpoint of the judicial modification of contracts. In case of clausula rebus sic stantibus if the party wants to ground his or her claim, he or she has to prove the good faith as a moral standard to be an exculpation under the heavy burden of pacta sunt servanda. The conclusion is that in Germany the basic element of private contracts is not the consent of parties but good faith of them. The socially excepted moral appears through the requirement of good faith of the parties. The law has to ensure that in any period of a contractual relationship this good faith exists.

• A legalitás és az opportunitás kérdésének dilemmája a pótmagánvád tükrében

  1-8

  László Fázsi

  Anett Fedor

  Views:

  74

  The study is focusing on the principles of legality and opportunity regarding the so called substitute private prosecution and sets them against each other. In the study it is revealed that in case analyzing the growing importance of opportunity, under the Hungarian criminal process system – that is based on the principle of legality – there is a logical way to state that the two principles prevail rather together than against each other. The authors take a closer look on the rules of the current criminal process code, arising from the principle of opportunity and suggest a possible solution on the dogmatic problem how these two principles can exist at the same time in the substitute private prosecution.

  Based on rationalism, on the recommendation No. Rec(2000)19 of the Council of Europe and so that no conflicts arise from the provisions foreseen in the Framework Decision No. 2001/220/IB of the European Council, the study makes a suggestion to allow the victim to act as a substitute private prosecutor in case of authorities partially deny the investigation. However the authors’ suggestion is just the opposite (i.e. restriction) in case of authorities partially deny indictment. According to their suggestion the above mentioned allowance shall based always on reasonable and respectable circumtances and it shall be declared by the victim why the process at the court has to take place even if authorities were not of this opinion.

  When the authors are analyzing the problems caused by the principle of opportunity and legality, and when they make suggestions that the rules regarding the substitute private prosecution shall be modified, they try to draw attention on the importance of this process as a significant right of victims regarding access to justice. The authors are on the opinion that the legislator shall pay not just a marginal attention on the problem when the victims are entitled to act as an substitute private prosecutor.

• Suspension of Application of Bilateral Treaties Owing to an Armed Conflict

  28-32

  Anikó Szalai

  Views:

  72

  The 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.

• Development of the new organisation of the capital local government in the years between 1989 and 1994

  Tibor Walter

  Views:

  85

  After demonstarting a short historical and national angle in my study, I would like to sketch a general survey about the rising and the operation of the capital local government between 1989 and 1994. This period was the beginning of establishing the system of local governments. This period resulted a remarkable turn to the direction of the capital level.

  Now this subject belongs to the history of public administration, but it is still a current question from many points of view. It is true that the relationship between the capital and the district local governments is rather contradictionary, as this is true for the relationship of the regime and the government.

  The development of the capital local government can be approached only if we examine the whole local government system. The governmental system and its contemporaries made influence to the operation of the capital local government too, especially in two fields, on the one hand the specific structure of the capital local governmental system, on the other hand the disintegrated structure of the capital agglomeration.

  The special structure of the capital local government influenced significantly the relationship of the local governments and the capital, and the relationship of the capital and the regime. The sharing of the tasks and the financial sources were a source of tensions between the capital and the districts. There was a great need to use long-term principles in sharing these sources. The conflicts became deeper and deeper, because the competencies were not clearly divided, and some investments failed because of the resistance of the district local governments.

  The relationship of the regime and the capital determines the special position of the capital, and the strong dependence on the state supports. This situation can be worse by the conflicts in the political principles of the capital local governments and the regime.

• Enforcement of administrative organization principles in public education administration

  74-84.

  Vilmos Csongor László

  Views:

  144

  After 1990 public educational institutions were maintained and controlled by local governments. This period was the era of decentralization. I am going to examine it in a later parts of my thesis with regard to all of its advantages and disadvantages. After 2011 there was a kind of decentralization by legislation after which it had or could have had an operating role but education became state responsibilities. The state as former branch coordinator thereafter took the role of maintainer besides of its public power authority.

  There have been two crucial changes of two subsystems of administration since its formation in 1990 but mainly after 2010. These changes were partially structural, affecting state organization in several steps then those affecting central integration and the reregulation of local governments reflecting the change in the role of the state and the expansion of Neoweber state ideas and recentralisation.

  Some of these factors were generated by international effects but Hungarian principles also played a role as the hurried and faulty system of task completion was formed in local governments.

  This study analysing how partial conditions are reflected in education administration, how the administration branches followed general tendencies or somehow compared to general changes in public administration. I am also examining how successful it was to deal with these roles together and separate them at certain points.

• Possibilities of mediation in the criminal procedure with the eye of a labour lawyer

  Henriett Rab

  Views:

  43

  Mediation 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.

• The evolutive interpretation of the Strasbourg Court and the European consensus

  32-39

  Zsófia Eszter Kémeri

  Views:

  49

  The 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

• New Tendencies in EU Law on Air Passenger Rights

  1-9

  Zoltán Angyal

  Views:

  124

  egulation (EC) No 261/2004 depending on the circumstances of the travel disruption, requires air carriers to: provide passengers with assistance, such as meals, refreshments, telephone calls and hotel accommodation; offer re-routing and refunds; pay a flat-rate compensation of up to €600 per passenger, depending on the flight distance; and proactively inform passengers about their rights.
  Under the Montreal Convention (as translated by Regulation (EC) No 2027/97 into EU law), a passenger may be entitled to compensation in case of mishandled baggage (but with a limit of about €1200), except if the airline can demonstrate it has taken all reasonable measures to avoid the damages or it was impossible to take such measures. Airlines often fail to offer passengers the rights to which they are entitled in instances of denied boarding, long delays, cancellations or mishandled baggage, in particular under Regulation (EC) No 261/2004 ("the Regulation") and Regulation (EC) No 2027/97. Case law has had a decisive impact on the interpretation of the Regulation. The Commission Communication of 11 April 2011 reported on the varying interpretation being taken on the provisions of Regulation (EC) No 261/2004, due to grey zones and gaps in the current text, and the non-uniform enforcement across Member States. Furthermore, it is difficult for passengers to enforce their individual rights. With regard to Regulation (EC) No 261/2004, the European Parliament asks the Commission to propose a clarification of the passengers' rights, in particular the notion of ‘extraordinary circumstances’. On 13 March 2013, the European Commission made a proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing
  8
  common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air. This paper takes a closer look at this proposal. The proposal aims to improve enforcement by clarifying key principles and implicit passenger rights that have given rise to many disputes between airlines and passengers in the past; and by enhancing and better coordinating the enforcement policies carried out on a national level. Issues covered by the proposal are the following.

  Definition of "extraordinary circumstances"

  Right to compensation in case of long delays

  Right to rerouting

  Right to care

  Missed connecting flight

  Rescheduling Tarmac delays

  Partial ban of the "no show" policy

  Right to information

  Handling of individual claims and complaints

  Better take into account the financial capacities of the air carriers

  Ensure better enforcement of passenger rights with regard to mishandled baggage

  Adapt liability limits in accordance to general price inflation

• Lex-Mercatoria Principles: A keystone in International Commercial Arbitration

  5-27

  Rachid Al Bitar

  Views:

  89

  The international Commercial Arbitration is a dispute resolution mechanism; thus, it allows the parties to a dispute to settle their affair outside the national courts. On the other hand, lex mercatoria can be defined as a body of rules that encompasses usages and customs that were used by the merchants in the medieval ages, thus the English nomination “merchant law’. After globalization, more specifically in the twentieth century, both above-mentioned concepts have been developed and adopted by most of the legal systems around the world. This paper aims to define lex mercatoria by exploring its’ history, its’ development, and by tackling all its’ elements to study the impact of lex mercatoria’s principles on international commercial arbitration proceedings.

• Mortgage and credit guarantee registry

  15-26

  Fanni Ferenczi

  Views:

  172

  Analyzing th esystem of mortgage we must reach back to the Roman Law. At that era it had been possible to pledge liabilities, rights and moreover aggregated asset, property. Mortgage is a long term institute of Hungarian Private Law as well. Paragraphs 251 – 269 of Act IV of 1959 on the Civil Code of the Republic of Hungary regulates mortgage in the Law of Obligations, placed among collaterals. In the last two decades the old Civil Code of the Republic of Hungary has been modified twice. Act V of 2013on the Civil Code of the Republic of Hungary weakens but definitely rewritten the principles of lending. Regulation of mortgage and the system of chattel mortgage registry has significantly changed. Several novelty has been introduced therefore the system of chattel mortgage registry was reformed too. Detailed regulations of credit guarantee registry in Act CCXXI of 2013 and Act 18/2014. (III. 13.) KIM has also been accepted correspondingly to the previous changes.

• Dents on the Bodywork – Corporate Governance Issues Regarding the Recent Corporate Scandals in the Automotive Industry

  3-14

  Barnabás Ferencz

  Views:

  87

  The aim of the article is to examine the key corporate governance issues in light of the recent scandals in the automotive industry. The article explores the underlying reasons which culminated in the events of the General Motors ignition switch scandal, and Volkswagen's "Dieselgate". While these two events may seem unrelated at the first glance, however, the facts show that similar problems led to these scandals, most of which were deeply rooted in the corporate culture. Factors, such as the lack of clear and honest communication and the willingness to bend the rules show that the principles of corporate governance were not put in practice within these corporations. The author believes that by taking corporate governance seriously the scandals could have been entirely preventable.

• Discrimination or value creation? – The real value of the wages in the Hungarian public work programme

  Marcell Sipos

  Views:

  156

  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.

• Előreláthatósági klauzula a szerződések jogában

  Andrea Csécsy

  Views:

  70

  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.

• Enforcment of the right to personal liberty in Bűnvádi Perrendtartás

  Zsanett Szabó

  Views:

  87

  In this study, first of all I am dealing with the question, how the right to personal liberty prevails in the Bűnvádi Perrendtartás, however at the beginning I would like to introduce how the law for the personal liberty formed and how it appeared in Hungary and in the international documents, so in the British, American and French law as well.

  The most serious barrier of the personal liberty is the criminal law, so i find it especially important to examine that for this reason what kind of safeguards were placed into the Bűnvádi Perrendtartás.

  In general it can be said that the most important guarantees of the personal liberty are found in the principles of the criminal law, for example presumption of innocence, and through this it prevails in the Bűnvádi Perrendtartás' system.

  Firstable the limitation of the personal liberty has to be looked in the coercive measures, so I studied the pre-trial detention institution, that besides the basic principle what kind of safeguards were brought in by the legislature.

  In the end, it can be said that the right to personal liberty influences the whole Bűnvádi Perrendtartás, and in the cases where there were limitations, they always solved it with a safeguard.

• Constitutional processes, a comparative study of the Hungarian constitutional processes (1989-2011)

  Éva Balogh

  Views:

  173

  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.

• The Right to Information Self-Determination after the General Data Protection Regulation

  Walter Roland Stricz

  Views:

  315

  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), became effective on 25 May 2018. With the regulatory form the legislator raised the regulation of the right to the protection of personal data within the European Union to a higher level. The legislative act has a fundamental impact on the legal systems of the member states showing various differences from each other. Further, it can be stated as a general experience that the right to the protection of personal data and the nature of such right are less known either to those affected or to the data controllers. The new legislative act and the penalties with increased amounts [Article 84 of the GDPR] demand the elaboration of a study understandable for laics, too. Finally, as a result of the General Data Protection Regulation, the institution system ensuring the protection of personal data has fundamentally changed, so, therefore, it is also necessary to examine the authorities of the member states and the Union, as well.

  The study primarily approaches the occurring problems from the practice side. Accordingly, the examination conducted by the Commission nationale de l’informatique et des libertés (CNIL) against Google is described, as the first significant penalty imposed based on the General Data Protection Regulation.

  The first part of the study is intended to present the right to the general protection of personal data. The historical part addresses in details the major elements of the historical development of data protection and the development of its contents, with particular regard to the appearance of the right to information self-determination based on the so-called “census-judgement” of 1983 of the BVerfG (Federal Constitutional Court of Germany). Finally, this part touches upon the theories defined in connection with the historical generations of the right to the protection of personal data. After the historical part the study addresses the peculiarities of the right to the protection of personal data, paying particular attention to separation from the neighbouring legal areas.

  The second part is intended to present the prevalence of the right to information self-determination according to the GDPR. It is the institution system protecting personal data that has undergone the most significant change. The Work Group under Article 29 has been replaced by the Data Protection Agency set up based on the GDPR. Setting up the Agency, enlarging its scope of authority and its stronger independence from the executive powers of the Union can, by all means, be evaluated positively. As regards the security of personal data, the practice, major directives and opinions of the Work Group under Article 29 have been examined. It is a significant step forward that the GDPR has made the sphere of special personal data more specific, promoting by this the increase of the extent of protection. It is important that, as a general rule, the Regulation forbids controlling special personal data. The definition of the concept of personal data is an essential condition for understanding the regulation. In addition to the principles of controlling personal data, the legal fundaments of data control have particular significance, with special regard to the consent and the data control necessary for performing the contract. In my view, the consent is a legal fundament of auxiliary nature for data control, which is also supported by the opinions of the Work Group, too. Granting the consent and the individual excluding circumstances occurring in connection with this, were examined on a case-by-case basis. In my opinion, the automated decision making process and the regulation of profile creation are one of the most cardinal issues of the GDPR. The way in which profiles are created, their use and the permissibility of such use are discussed in details. In my view, the regulation of the GDPR is deficient as regards the automated decision making process and the profile creation. The decision making necessary for performing the contract is not separated sharply enough, and it is not necessary for this. In my opinion, in respect of this latter sphere of cases the GDPR is not strict enough and may easily serve as a basis for misuse on the part of data controllers. In my view, granting the consent should be made stricter in respect of creating profiles and the introduction of the (contradictable) legal presumption of refusal would also be desirous.

• About the GDPR – focusing on libraries and archives

  63-75

  Fanni Tóth

  Views:

  89

  Nowadays data has become one of the most important value which raises the question of protecting personal data. The European Union responds to the challenge by legal instruments: since 25 May 2018 it has been obligatory for the member states to apply GDPR. In the article, first I study the novelties of GDPR. Then I examine to what extent the provisions apply to libraries and archives.

  The novelties can be divided into several larger groups. Some of them belong to the data subjects (data portability, right to be forgotten, pseudonymisation), the other parts are principles like data protection by design and by default or the closely related accountability principle. The Regulation also introduces a new legal institution, the data-protection impact assessment and requires the notification of personal data breach. Concerning the expected impacts, it is clear that the Regulation strengthens the rights of the data subjects but imposes new obligations on data controllers and strengthens the role of control. GDPR is a determinative law for the undertakings and business life, and it must also be applied by libraries and archives. For archiving purposes in the public interest, however, the Regulation allows for exemptions concerning libraries and archives. The provisions require libraries and archives to identify the risks that may occur while processing personal data as well as to examine their regulations.

• Genetikai teszt a fogyasztók számára

  61-69

  Edit Zsuzsanna Tárczy

  Views:

  103

  The European Academies Science Advisory Council (hereafter: EASAC) and the Federation
  of European Academies of Medicine (hereafter: FEAM) published a study on „Direct-toconsumer
  genetic testing for health-related purposes in the European Union” in the summer of
  2012.
  This paper shows the results of the research of the working group of the two mentioned
  organizations. The main aim was to investigate the scientific, ethic questions and the
  questions in connection with the possible regulation. The second aim was to define principles
  and recommendations for the European Commission, the European Parliament, the Council of
  Ministers and the political decision-makers of the Member States.
  This paper also shows the results of the workshop – organized by the EASAC, the FEAM and
  the Science and Technology Options Assessment (hereafter: STOA) - in the end of 2012.
  Finally, there are some facts on the regulations on the genetic tests outside the EU.

• The evaulation of practical significance of the CISG and UPICC

  21-40

  Sándor Boros

  Views:

  239

  The main aim of the present study is to determine the real practical relevant and volume through the evaulation the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts (UPICC). In order to achive the mentioned aims, the study applies the results of the available empirical studies regarding to the CISG, whilst regarding to the UPICC, the study applies the available case law abstracts. In case of the Vienna Convention, it can be obviously stated that, the volume of practical application of the CISG is rather moderate, lags behind the success that the legal literature attributes to it, whilst under the results of revision the available case law in connection with the UPICC, can be declared that, the UNIDROIT Principles mainly promotes the interpretation and completion of the national law and also the international legal instruments, the contracting partie’s intend to apply firstly the UPICC as substantial law, is rather low. Furthermore the study also pay attention the CISG and the UPICC influence to the national law legislation, and declares that, both legal instruments have a huge impact to the national law making. 

• Problems of globalization examining the development of local governments

  Tamás Horváth M.

  Views:

  55

  In Hungary almost every reform has its reference to the integration in the west, especially European Union. The explanation for failures is the difficulties of adjustment. The dilemma is what kind of reasons result this problem: is it a national feature or the original distress of Hungary. We can say that the root of it is the problem of following patterns. The origin of these patterns are from the western world but these patterns needed years or sometimes ages to reach the present situation. It was an organic development.

  In our modern world we can find plenty of legislative elements of globalization, unifying and harmonizing rules and institutions. Most of the international economic organizations make every effort to harmonize economic institutions, but the example of European Union shows that borders are not as simple as it seems. This harmonization and unification has to surpass it to a wider perspective (e.g. administration, public education, telecommunication or private law institutions, etc.).

  In the study I examine the development of self-governing and local governments. In Hungary over the last years – since the birth of self-governing – many changes could be found. Reforms followed reforms. According to a survey the most important fields of reforms are the following:

  • decentralization
  • privatization
  • decreasing the role of public sector
  • reform of the law for public servants
  • information technology
  • financial and budgetary management.

  Reforms of local governments are part of the globalization especially in those countries where change of the regime has happened. To reach the desired western pattern some lemmas are necessary:

  • constitutional state
  • territorialism of state
  • guaranteed financial sources
  • stability from the perspective of economy and policy.

  These foundational criterions are spread by international organizations like NAFTA, GATT, WTO, IMF, WB, OECD or EU itself. Plenty of recommendations exist on this field for administration and local governments. The Council of Europe has a basic document, the Charta of European Local Governments.

  If we examine the problem closer we can see that in spite of every recommendation or regulation, local governments are in trouble for example in Hungary. There are exact rules or principles to ensure the liberty or free space for them, but financial problems always exist.

  In the essay I analyzes the way of following patterns in typical countries and try to show how hard is to introduce a pattern from a moment to another that has prestigious past.

• Civil law notaries within the organization of Roman Catholic Church

  55-65

  Henriett Nagy

  Views:

  113

  The current, traditional Latin-type civil law notaries do not exist within the organisation of the Roman Catholic Church. However, the ecclesiastical “notary” and the concept, function and activities of the civil law notary may be related, and even made parallel, which may support the idea of some common origin or development. My article discusses the reason why we may still speak of persons having quasi notarial competence within the church. Also, it purportsto describe the diplomatic mission of the Vatican, the tasks of the embassy, touching on the issue of legalization as well; moreover, it draws a parallel between the ecclesiastical clerk and the civil law notary from the aspect of civil legal principles, such as impartiality and independence, comparing them also in terms of appointment and similar elements concerning attestations. It covers the rules governing the preparation of instruments and the certification of copies in more detail, as well as the procedural function of the ecclesiastical clerk, the similarities concerning archives and the custody of documents, and finally presents the issue of removability and termination of office.

• The polluter pays principle in the Hungarian civil law, with special regard to the liability for hazardous operations

  89-106

  Edit Sztancs

  Views:

  111

  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.

• Civil law dogmatic deficiencies and legislative hiatuses in a private law legislation: Short case study

  49-66

  Tibor Kiss

  Views:

  113

  Based on the Government Decree 383/2023 (VIII.14.) on the ministerial approval of lease contracts of companies directly or indirectly majority-owned by the state, the article presents a case study showing that the legislation suffers from numerous "legal errors" that violate the provisions of the Legislation Act and is not in line with the fundamental doctrinal principles of civil law. The case study describes in detail the provisions of Act CXXX of 2010 on Legislation that the Government Decree does not comply with and shows how imprecise wording leads to problems of interpretation. The paper points out the private law terminus technicus which the legislator did not apply correctly (the party of the lease contract, consideration, invalidity - ineffectiveness) and the author proposes to correct the errors and to clarify certain normative provisions.

• The special requirements applicable to the management of national assets, with a special respect to the requirement of transparency

  85-96.

  Zóra Zsófia Lehoczki

  Views:

  173

  The Fundamental Law of Hungary states that the property of the Hungarian State and of municipal governments shall be considered national assets. National assets shall be managed and protected for the purpose of serving the public interest, satisfying common needs and preserving natural resources, taking also into account the needs of future generations. Economic operators – such as companies - owned by the State or municipal governments shall conduct business prudently and independently, in accordance with the relevant legislation, under the requirements of legality, efficiency and effectiveness. The special requirements regarding the management and safeguarding are laid down in Act CXCVI of 2011 on National Assets (hereinafter: National Assets Act) and Act CVI of 2007 on State Property (hereinafter: State Property Act) also contains a few requirements in its preamble.

  Based on the above, national assets shall be managed and protected in a special way, compared to privately owned assets. Publicly owned enterprises play a very important role in the national economy, since they provide a significant amount of GDP, they employ numerous people, they usually provide public services and last but not least they manage public funds. As a consequence, these companies shall also manage their assets with respect to the special requirements. In our article, we introduce these requirements by examining their content and also their relationship towards each other.

  One of the most important requirements is transparency, since these enterprises manage public funds and according to the Fundamental Law, every organization managing public funds shall publicly account for the management of those funds. Public funds and national assets shall be managed according to the principles of transparency and of corruption-free public life. Data relating to public funds or to national assets shall be recognized as data of public interest. We lay a special emphasis on transparency by introducing the relating regulation and also by summarizing the most prominent statements of court decisions from the last few years. In their judgements the courts interpreted the requirement of transparency in connection with state-owned enterprises and the relationship between transparency and the protection of business secrets and business interests of the companies.