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Az élethez való jog néhány jogelméleti kérdéséről
65-73Views:112Nowadays in vitro fertilisation raises relevant controversies at the point of view of jurisprudence as well. The distinct approximations of in vitro embryos, such as to be considered as personae or objects, are also resources of several theoretical and pragmatical questions. It is essential to give a compendious summary about what kind of jurisprudental environment had been contributed to the intrumental comprehension of human embryos too, otherwise it is difficult to understand the scientific quandaries connected to the subject correctly. Merely thereafter the international and the Hungarian regulation of in vitro embryo’s status seems to able to be dissected, in particular the case-law of the Hungarian Constitutional Court related to the right to life and the constitutional funds of the oncurrent re-regulation in our country.
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Re-Reading Hugo Grotius Reflections to Thoughts of „Father of International Law” in International Law of 21th Century
Views:71There 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 In our age we have to mention that this criterion is no longer applicable without reservation, because the attack against USA on 11th September 2001 demonstrated that not only states can fight to each other.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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Freedom of contract’s role in the economic regulatory
Views:132The freedom of contract has an economic regulating rule, both on individual and on communal level; secures either the enforcement of the law of the self-determination of the parts, or the possibility of market participation.
Gwartney and Lawson, elaborators of the conception of the economic freedom, said that the capstones of the economic freedom are the freedom for the decisions and for the acts of the persons, moreover the volunteering of the exchange, the freedom of the competition, the protection of the persons and their properties.
Several indicators are available for measuring the economic freedom. One of them is the index of the Canadian Fraser Institute Economic Freedom of the World; furthermore it is one of the most respected indicators. This index investigates the rate of the economic freedom by using 42 factors grouped to five parts. These five components are the legal system and the protection of the ownership, size of the state, reliable, so stable valued money, the freedom of the foreign trade, the capital market and the regulation of the business. The last four items can be identified as the freedom of the contract.
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Genetikai teszt a fogyasztók számára
61-69Views:78The 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. -
Thoughts about accessory private prosecution
Views:69In 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.
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The birth of Public Administration Act (Act no. XLII of 1870)
Views:79Act no XLII of 1870 reflected the constitutional arrangements of the Compromise of 1867. This was the first law providing a comprehensive regulation of the system of public administration, which remained, with minor amendments, determining in the entire dualistic era. The system of “virilims” was introduced, which restricted popular representation. The office of the Lord Lieutenant, as the representative of the centralistic endeavours of the government, was created, whereby central power could be enforced. The central government did all in its power to ensure that the self-government of municipalities was kept under control. The rights that local authorities had in the feudal period could no longer be granted, as this would have frustrated the operation of the central government. It was in accordance with the above that the provisions of the law had to be accepted, local policy influenced, and municipalities thereby reorganised.
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A general overview of the article 6 paragraph 1 of the European Convention on Human Rights based on the case law of the European Court of Human Rights
Views:101The most important human rights were firstly defined by the French Declaration from 1789. These rights are called as first generation rights, because they guarantee the most important civil and political rights of people. The states mostly act passive in order to protect them. They create acts on their protection, special mechanisms for enforcing them. We can state that every field of law is based upon them and helps protecting the human rights.
The right to a fair trial is a first generation human right. Its regulation scheme is very complex; therefore it is a hard and a complex task to define the importance and the key functions of this right, because the laws on it are varied. Besides civil procedural law, international law, EU-law and – within national legal systems – constitutional law has also been dealing with the right to a fair trial.
In the field of international law many international and regional treaties exist on the enforcement of procedural rights. In my paper I examined the European Convention on Human Rights (hereinafter: ECHR). The ECHR is an international treaty on the protection of human rights. It was born under the auspices of the Council of Europe in 1950, Rome. From 1959 its control mechanism is the European Court of Human Rights.
In my paper I examined the proper interpretation and the actual application of the ECHR art. 6. par. 1based on the work of the international court.The article 6 of ECHR is about the right to a fair trial. In par. 1 the Convention gives a list of the most common features of a fair trial: (1) a fair and public hearing; (2) with a reasonable time; (3) the tribunal must be established by law and must meet with the requirements of independency and impartiality; (4) and finally the judgement shall be pronounced publicly. It enshrines the principle of the rule of law, upon which such a society is based and built.
The first chapter deals with problem of the interpretation of the article. I tried to give the most convenient statements, which I defined upon the case law of the ECHR. After the question of interpretation is answered, the third chapter tries to give an overview of the applicability of article 6.In this section I cited many cases of the ECHR, because the Court has been developing the question of applicability in its case law. It is because it considers the Convention as a living-organism, so the article 6. needed to be interpreted again and again during these decades.
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Fragmentation and changes in Hungarian succession law
81-103Views:226The right to inherit is recognized in the Fundamental Law, the detailed substantive legal rules are laid down in the Seventh Book of the Civil Code. In recent years, the legislator has formulated rules of substantive succession in other legislation beyond our private law code (the Civil Code). According to the Registered Partnership Act, the rules applicable to the spouse apply mutatis mutandis to the registered partner, which means that the registered partner is also a legal heir. The special rules for the acquisition of ownership of agricultural and forestry land by succession by will are laid down in the Land Traffic Act (Act CXXII of 2013). On 1 January 2023, a new law will enter into force (Act CXLIII of 2021), which will supplement the succession law provisions of the Civil Code in the case of joint legal intestate succession of undivided common ownership of agricultural land by several heirs. The designation of a public body to represent the State in succession matters is provided for in a separate ministerial decree. The present article analyzes how all these complex, fragmented regulations make it difficult to enforce the law and the extent to which it hinders the speedy execution of probate proceedings. The present article criticizes the fragmented regulation and proposes the integration of the rules of the separate laws into the Civil Code, as this could contribute to a more efficient application of the law.
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Specialities in the Hungarian and international regulation of biotechnical inventions
Views:56In my study I say about that change, which became at the area of biotechnology. The revolution of DNS technology contain a lot of chance, but it has more danger. We need select from the modes.
My column I checked what happens with the species the biotechnology invention flag. The first observation that the changes faster than other territories, and these changes are complex and interrelated. The post control and correction are also important. It’s got to be introducing the health nutrition compliance. The new products will not harmful for the human and animal health. The legal condition shall prescribe the human defense of human and animal body. One of the most important international convention in that question the European Union Council about the biomedicine. It said need consent of the persons concerned for the biotechnological research. Create new human species, and cloning of human beings, human body use for commercial is prohibited by this convention.
In my opinion that need promoting the knowledge and biotechnical awareness of consumers. Must be regulated the relations between public order and public morality and biotechnical inventions. It is also necessary to ensure the patentability of biological matter. „Biological material” means any material containing genetic information and capable of reproducing itself or being reproduced in a biological system. Inventions which concern plants or animals shall be patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety. The discussion on the patentability of sequences or partial sequences of genes is controversial. The 98/44/EK Directive, the granting of a patent for inventions which concern such sequences or partial sequences should be subject to the same criteria of patentability as in all other areas of technology: novelty, inventive step and industrial application. Whereas the industrial application of a sequence or partial sequence must be disclosed in the patent application as filed.
The biotechnical patent need particular importance in the legislation. The Hungarian rules are conforms to the European Union legislation. However, certain additional rules should be laid down. Have to think about the control test in the patent process. The expert can see the applicability just on the test.
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Extracts from the regulations settling the tenure of the matrimonial home in Europe
121-139Views:107The tenure of the matrimonial home after divorce is a significant question in several respects. In addition to the fact that both parties are likely to be emotionally attached to the former scene of family life, the wealth factor must be taken into account as well, as it is a valuable property that can be a real trump card for both spouses these days, considering the high property prices. It should also be borne in mind that if a spouse receives the formal matrimonial home, he or she will not be exposed to the inconvenience of finding a suitable home and will not have to leave his or her usual environment. It follows, however, that a spouse who is forced to move must be compensated in some way for these difficulties, even if he or she did not own the matrimonial home. This study intends to examine the regulation of European countries regarding the use of the marital home in the event of divorce, presenting the typical models and the main aspects considered. The purpose of the present work is not to analyse the Hungarian regulations, they are only mentioned for the aim of comparison. As a conclusion of this research, I would like to reveal the most ideal solution for settling the tenure of the matrimonial home in the event of a divorce, the pros and cons of each model, and if states really take family law principles into account.
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Medical expert procedure in criminal proceedings
95-113Views:61The Criminal Procedure Act significantly changed the rules of expert evidence, so e.g. in order to prevent the prolongation of the procedures, it tries to direct the process of appointing experts and evaluating expert opinions into a reasonable channel in order to make a considered and timely decision. The time that has passed since the entry into force of the law already allows us to examine the practice of law enforcement. I believe that the biggest change comes from the regulation of the private expert opinion, which allows the defendant and his defense to have similar rights in the criminal proceedings, which also follow from the principle of equality of arms. And all of this strengthens the fairness of the procedure in general, which can be a guarantee of the birth of judicial verdicts that are also close to the material truth.
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The role of de facto separation in the divorce law of EU Member States
41-56Views:110De facto separation (means spouses are living apart) as the most spectacular sign of the irretrievable breakdown of a marriage is a legally relevant fact in the (national) divorce law of the most European Union Member States. However, there are notable differences in the regulatory methods used and how much importance is attached to it. There are Member States where the quantity and quality of the separation is regulated at the legislative level, either as an explicit precondition for divorce or as a legal circumstance orienting the judge, and there are Member States where separation plays a role solely or mostly in the process of the application of the law. My hypothesis is that the fact of separation is such a common intersection of the divorce law of the EU Member States that the legal attitudes taken by them in this regard require a comparative analysis of the law. The aim of this paper is to examine that how the EU Member States incorporate the fact of separation into their divorce law, to classify the regulation methods ’from legislation to application', and to draw the final conclusions in a summary.
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The legal consequences of the unlawful termination of the employment relationship by the employer in the light of Act I of 2012 on the Labor Code
125-144Views:93Highlighting the consequences of the illegal termination of the employment by the employer, the thesis presents its recent short historical background, development direction, current regulation – mainly the Act I of 2012 on the Labor Code (Mt.) 82. § (1), (2) and (4)
paragraphs –, especially the practical application of the judicial experience accumulated over more than ten years. The thesis covers the legal basis of the labor law claims presented against the employer's decisions in question, as well as the summativeness of the issues, calling for help the case decisions of the higher courts, i.e. either the judgment boards or the Kúria, made in similar matters, which can be considered as guidelines in the application of the law. -
Unilateral determination of working time in the effective regulations of labor law
63-80Views:236In most cases, law does not differentiate between various people in equal-level positions of a contract; during sales, the State has the same rights and obligations as the contracting private person. Labor law is a specific field of law where one of the parties that are theoretically on equal level – i.e. the employee – is actually in a somewhat subordinated and obviously more exposed position. In the light of the foregoing, it is especially notable that there are some fields of labor right where the third way applies; parties are not equally positioned in terms of power; however, it is not the employee who gets legal assistance for the equality of opportunities, but the law itself supports their disadvantaged position. Such situation is called the legal situation of unilateral power, and we aim to study to what extent it is present in Hungarian labor law and how advantageous or disadvantageous this it to the parties. The field of law where one is likely to detect the traces of unilateral power is the legal regulation related to working time, which, therefore, is the subject of this study, and the definition of working time will hereinafter be looked into from the aspect of the employer’s unilateral right to establish employment. Unilateral power is basically not typical to be enforced in labor law, and therefore, working time-related regulations – that belong to the employer’s own discretion – form an exception in such respect. At the same time, the option of flexible work order provides an exception from the superiority of unilateral power, and therefore it is actually an exception to the exception. Such complex system, however, provides the option to make sure whether the enforcement of unilateral power is constructive in labor law, or it would be more reasonable to apply a more balanced system such as the principle of the employer’s ultima ratio as suggested by Guy Davidov. While noting that according to those described above, flexible work order poses some potential risks, too, in our opinion, it would be more efficient and social to set up a consensus-based system, which would also allow us to satisfy our obligation of European Union legal harmonization. Hungarian legislation, and labor law legislation in particular has numerous tasks to do in order to promote the solution of socio-economic problems, as well as to fulfill our obligations related to legal harmonization; in our opinion, the conclusions above confirm that making working time regulations more liberal is one of the major tasks of legislation.
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The special requirements applicable to the management of national assets, with a special respect to the requirement of transparency
85-96.Views:156The 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.
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Consumer insolvency in the European Union
153-163Views:87Almost all modern civil legal systems respect property rights as a privileged and fundamental right, which means the property rights of individuals cannot be restricted or taken away without due process of law. In the case of insolvency proceedings, the person's right to property is violated, as the debtor is deprived of this right, at least partially. In such situations, the property rights of the debtor and the creditor are strained against each other, even to such level that the debtor's livelihood and alimentation is threatened by the satisfaction of the creditor's demands. During insolvency proceedings, we should restore the property rights relationship that was broken on the part of the creditor as a result of the debtor's behavior at the expense of the debtor's assets, ensuring that the debtor's interests are also protected, and that the proceedings take into account the interests of both parties. National lawmakers should, therefore, take several aspects into account to create the material and procedural legislation on the basis of which property of private individuals can also be subject to insolvency proceedings. Lawmakers should act in an environment where, due to the impact of globalization, it is no longer evident that the debtor and the creditor are citizens of the same country. This is the reason it is also important to examine how the European Union regulates insolvency proceedings in the case of consumer over-indebtedness in a manner that crosses national borders and still remains inside the Union.
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Questions around prescription by title
81-89Views:388In this paper I am willing to introduce different aspects of the new institution of the Hungarian civil law, the so-called prescription by title. This young way of acquiring property was a novelty in the field of law and jurisprudence, and a novelty for entities as well. The law of property contains the most important and fundamental rules of private law, this is the reason why it is always ultimately important that the legislator and the exact purpose of the legislation has to be as clearly defined as possible, since this is what ensures the security of property transactions and guarantees the freedom and protection of one of the most ancient social institutions, property. By its unique nature, prescription has always been the subject of legal disputes, thus the arguments above are cumulative.
The aim of this paper is to present the regulation of prescription by title, its dogmatic features, draw parallels with its ancestor in Hungarian legal history and an unusual foreign example, examine some relevant aspects of judicial practice and finally attempt to compose a possible alternative regulatory technique.