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Thoughts about software as a patent
Views:55I’m presenting in my study the Hungarian software’s legal system. The Hungarian law system is protecting the software in the copyright law, like a literary property. This resolution given more latitude for the author, but it has many problems of the evidence, because not registred the property – like the patent – cause the author’s being can prove difficultly.
In the patent law has not problem with the evidence thanks for the state register, but the legal process longer and costly more money. Primarily the Hungarian patent law is protecting the industrial, technical property. The software not an exclusively industrial, technical produce, there is closer the literary property about the author’s intellectual work.
The protection of the Hungarian copyright is cheaper and faster than the protection in the area of patent law, and it covers more contract liberty for the partners. The Hungarian civil law is based upon the monist conception in the field of intellectual property. This means that pecuniary and personality rights are indivisible. In spite of this competition on the market prefers contracts that ensure exclusive, unambiguous rights. This area of law claims contracts suit to these conditions.
The personal rights in the Hungarian copyright are remaining for the author, also the pecuniary rights. But - thanks for the successful software’s lobby - in this question the regulation diverged: the pecuniary rights may be transferring for the users, costumers. This regulation is better (cheaper, an easier) for the buyers under the Hungarian regulations of patent law.
In Hungary a lot of software contract was established under the British legal system. The Hungarian legal culture accepted and using these contract forms. The Hungarian regulation concerning to the software questions is dualist like the British one. The pecuniary rights can be transferred free, just the personality rights belong to the author.
The users can buy the rights need for using and it gives enough defense as a shield. The author’s interests are not sweating because of the personality rights stay under his domain.
In my opinion the question is whether the Hungarian legal defense equally serves the author’s and the users’ interests. The process in patent law is longer, needs more money for supporting the protection and there are some conceptual problems between the software and the patent ideas. The new regulation is not reasonable.
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The Hungarian system of sanctions in connection with copyright law comparising to directive 2004/48 EC about validation of intellectual property right
Views:83Copyright law is a relative young area of civil law. Intellectual property and creations ensure the revelation of human personality. The infringement of these rights became general with the development of technology. From the beginning copyright law tried not only circumscribe the possibilities of unrestricted use but ensure effective protection to authors with exact sanctions.
In the essay I examine the international and Hungarian regulation against usurpation demonstrating all sanctions and opportunities. Not only one area of law gives protection to these rights. Civil law, criminal law and administration law has different sanctions for infringements.
On 29th April 2004 2004/48/EC directive has been accepted about validation of intellectual property rights. The explanation of this directive is that different regulations in member states endanger the unified internal market. The directive consists of the rules of proceedings and sanctions.
In this study I present the development about system of sanctions form an international and from a Hungarian perspective. I examine all types of sanctions concerning to the field of civil law and try to analyze functions and aims in connection with them. The effectiveness and history of these legal institutions are also presented in the study.
Comparing the directive and the Hungarian copyright law it can be said that despite of all circumstances the Hungarian law has to be improved especially on the field of proceedings and temporary arrangements. These rules are specified compared to the ones in the Hungarian civil procedure, so judges have to take care of these differences.
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Előreláthatósági klauzula a szerződések jogában
Views:68The 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.
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Expropriation in the new Hungarian civil law codex
Views:125The expropriation is a neglected legal institution in the Hungarian law, especially in the civil law. Although the expropriation usually appears in the civil law codes of the European states, it is ambiguous of the aspect of the civil law. However, it cannot be ignored that the civil law aspects of the expropriation are very important.In the civil law literature the expropriation is discussed either as the original way of acquisition of property or as the limit of the public property relations.My lecture is about the theoretical problems of the expropriation in the system of civil law. This article will provide an overview of doctrinal opinions about expropriation law in the delayed codification and in the new Hungarian civil law codex.
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Lack of Balance In Contract Law: the State as Contractual Party
Views:274Contractual 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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Patent Law Contract and its effects in Hungarian Law
Views:62Significant changes have happened on the field of intellectual property law in the last few years. The emphasis placed on the material relations and economy became stronger. These changes caused that creations of the man came into the limelight. Of course the legal background became also very important.
We can feel the re-regulation of this legal field. Legal institutions became regulated in new Acts to be adjusted modified circumstances. There were several causes of the necessity of these changes. First of all, the new economic and social environment after the change of the regime claimed to modify the legal materials. On the other hand the international environment changed rapidly and it is still in progress. So the Republic of Hungary had to face with the obligations that are stated in international treaties and we had to put a strong emphasis on our member status in the European Union: EU regulations and directives. By now we can tell that re-codifying this area is over, we can only expect to small modification in the near future.
Modifications in most of the cases prepared for the future. But it does not mean that we can count on a very crystallized legal material. In the dynamically developing world of IP law it is not rare to use smaller modifications. We have to examine the legal practice too, that helps us finding the correct way in the fast changing economical and social relations. Performing the harmonization duty, legislator could not always take into consideration the national significances, legal practice. The lack of examining these circumstances can cause modifications in the legal material.
The Patent Law Treaty adopted at Geneva on June 1st, 2000. The provisions of the Treaty and the Regulations shall apply to national and regional applications for patents for invention and for invention and for patents of addition, which are filed with or for the Office of a Contracting Party. The Patent Law Treaty became applicable on April 28th, 2005.
Hungary joined the Treaty at the beginning, because of the need in 2008 to change the Hungarian patent law. The Treaty suggests the European Patent Convention, however in many ways it is the complementary. The Treaty gives types of applications permitted to be filed as international applications under the Patent Cooperation Treaty, divisional applications of the types of applications referred to in item.
Earlier the rules of Hungarian patent law were complicated, the process of registry was less favorable for the patentee. The harmonization of process rules effects that the patentee cannot lose his patent rights. The new rules introduce an electronic process in patent law, which makes the process easier, cheaper, and faster. But not all the procedures became electronic: only the lodgment of petition. In the future that should be better to reach electronic procedure on every level.
The harmonization of patent rules means liberalization, the notification will be easier and faster, which effected growth in the trust of business. Process rules need more harmonization in the future, and hopefully the final goal will be one global process at in all member states of the European Union.
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Thoughts on the successions of the business shares
Views:85The article focuses on the successions of the business shares which are in the Hungarian limited liability companies. There are several changes because of the new Civil Code that affected this area although we have to examine the former regulation because of the period of validity, too.
The succession law is the area of the law with whom every people has connection at least once in their life. The number of the legacies grows in which business shares can be founded because more and more people are participating in business societies.
The new method of the regulation differs from the previous. The new Hungarian Civil Code (Act V of 2013) consists of not only the “classical” civil law (for example property law, law of contracts) but the family law even the business law. Before this there were two separate laws and because of this situation we have to examine the relation of these laws and their methods of regulations.
Afterwards we study the state of the successors in the Hungarian limited liability companies. It diverges from the other companies because the limited liability companies are transitions between general and limited partnerships and joint-stock companies. There were more ideas how to regulate this company; at the end it has differences but not so significant.
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Atypical Contracts in Hungary and Serbia
1-16Views:101The paper analyzes the notion and types of atypical contracts, primarily in the Hungarian and
Serbian law, but also in wider, European perspective. The analysis sheds light on the different
terms used in different legal systems to denominate contracts that do not fit explicitly into the
range of nominate contracts, that is into the range of contract-types envisaged by the civil
code or code of obligations, respectively. According to the Hungarian legal literature, all civil
law contracts are divided into two main groups: nominate and innominate contracts. The
former group is further divided into the categories of typical and atypical contracts, while the
latter into the categories of mixed contracts and de facto innominate contracts.
The authors conclude that there is a tendency in Europe, both in the jurisprudence, the
legislation and the application of law, to create a unified and coherent law of contracts, which
affects the range of atypical contracts as well. Most notably, the Draft Common Frame of
Reference, the normative proposal of the Study Group on a European Civil Code and the
Research Group on EC Private Law (Acquis Group), contains model rules on franchise, timesharing,
commercial agency and treatment contracts, just as rules on electronic commerce, on
the one hand. The legislation of the European Union, on the other, aims at the highest possible
level of harmonisation of laws which, from the aspect of protection of consumers and
competition law, affects the range and statutory content of atypical contracts. Finally, the
paper refers to a series of decisions of the Court of Justice of the European Union that tackle
certain features of the atypical contracts, whereby the Court in the determination of issues of
contract law applies a rather functional approach. -
The syndicate agreement
45-57Views:210Before the new codex of civil law the law of business associations was cogent, that is why the syndicate agreement became a popular contract again. Yes, I would like to emphasize again, because in the past decade, after the commercial law became valid, this type of agreement and cooperation, what was regulated by the syndicate agreement was well known in the Hungarian civil law. Namely this commercial law had a provision, which said, that every occasional associations i.e. civil association or consortiums, are actually civil associations not business associations. The bottom line is, they are contractual collaborations, with one purpose, to make profit. If someone comes to make this kind of cooperation/collaboration, it has to be regulated by a syndicate agreement.
After the WWII, the syndicate agreement was not popular. By the time when the first law of business association entered into force, this type of cooperation reached high popularity, because of the cogent rules, in respect of the private limited company. This is the reason why the syndicateswith vote became so popular,and they will be after a dispositive civil codex.
First I would like to present syndicate agreement of company law, second I would like to give a brief overview about the syndicate agreement of public law.
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Doubtful questions in connection with the effectiveness of insurance contracts
Views:54The dispensation of justice most often makes decisions in legal disputes about contract law on the basis of the general rules of contract law. The freedom of making contracts and the dynamism of contract law have resulted in an agreement that the conditions of the contract and the general rules should generally be considered to an increasing extent rather than the special regulations referring to the given contract. However, there are some contracts which theme, subjects and content require the application of special rules that result in solutions hard to interpret for parties inexperienced in law and that are radically different from those recommended by the general rules of contract law. Insurance contracts are those type of contracts, where the rules determine when the contract comes into existence and effect and when the services are due. These regulations are based on a logic that is radically different from the general rules, so they can often lead to serious misunderstandings. It is discernable in the judiciary practice that the dispensation of justice respects the specific features of insurance contracts, but tries to interpret the rules in a way that draws near to the general rules of contract law. The decisions of the Hungarian Supreme Court give priority to the interests of the insured parties and allow in fewer cases when the insurance company is exempted of its obligation of payment. However, judiciary practice has little effect on the content of insurance law. It seems justified to make insurance companies work out as detailed and clear conditions as possible and make them disclose the orders basically concerning their obligation of running risks.
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A „távollétes ügyek” egyes elméleti és gyakorlati kérdései a büntetőeljárásban
Views:60The idea of simplification of the law of criminal procedure has been an interesting topic in the science of law for a long time. Practical necessities, namely the overburdening of the criminal courts and the new challenges of the criminal law called this concept into life. Finishing up a procedure in a reasonable time limit is a very crucial interest – as it was pointed out several times by the Council of Europe, Committee of Ministers and also the Hungarian Constitutional Court. As the international principle declared in the Human Rights says everyone has the right to plead its case within a reasonable period and it can only be achieved that way.
Because of the reasonable time limit required for a procedure, various simplifications of methods have been introduced into the national systems of criminal procedure. As a part of this process several legal institutions were introduced in the Hungarian law system aiming to accelerate the legal procedure. One of them, which is called special procedure against absent accused, is regulated by Chapter XXIV. of the Law of Criminal Procedure.
This essay deals with this special procedure in details. Firstly I show through a short international outlook how the procedure against absent accused appears in the practice of the European Council and the European Union. Hereafter a certain case is examined in details where the European Court for Human Rights considered the necessity of the accused person’s appearance. The Court established a principle if the absence of the accused had hurt the requirements of the fair trial. According to this the appearance of the accused person is necessary if it could play a role in the forming of the Court’s opinion.
Next, I examine the problems connected to the Hungarian regulations because recently serious constitutional worries have appeared related to this legal institution. As a result of this the Constitutional Court made its decision (n. 14/2004) and found many paragraphs of the then existing legal institution unconstitutional. Based on this Decision I go through in details all the problems and requirements related to this procedure. In the light of this, the regulation effective from the 1st of January, 2005 is described, which – according to my opinion – meets the requirements made by the Constitutional Court, so it is exceptional and provisional.
In the next chapter certain practical experiences of the procedure against absent accused are examined. Here it is stated that the application of this legal institution is the rarest among the legal institutions aiming the acceleration of legal procedures. I explain it by the fact that this is a relatively young legal institution and there was not enough time since it was introduced to give certain conclusions, moreover the application is limited concerning the range of individuals. As a conclusion it can be stated that the application is more common in those cases where the accused is abroad but does not stay in an unknown place. I call the attention to some problems emerged in the practice as the protection of the accused, or the delivery of the copy of indictment and summons, etc.
As a final conclusion it can be stated that using this legal institution is not so common but the importance of this will increase in the future by joining to the EU because of the easier way of crossing the boards. Hopefully the regulation, which suits to the requirements of the Constitutional Court, will be proper to gain its original aim, namely to simplify and accelerate the legal procedure.
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A short study on Danish Act on Names
Views:45In Denmark until around 1850-1870 most ordinary people used patronymics instead of surnames, however, in 1812 the Danish government passed a law requiring families to choose a fixed surname that future generations should continue to use. In 1826 patronymics were abolished by law. It took several decades for patronymics to disappear.
Constantly changing names had given reasons for this regulation. The patronymics (as family names) were not favourable for property circumstances and registration.
Today the Danish name system bases on the Danish Act on Names. This act contains regulation of last names, middle names, first names, procedure of giving names and the changing of names, private international law relations and penal provisions.
This Danish act is very permissive, because it allows using traditional patronymics and in the same time encourages individuals to choose a new surname. So a name which is not used as a last name in Denmark can be adopted as a last name but some conditions must be effective.
In Denmark last names borne by 2,000 individuals or less are protected and cannot be adopted by other individuals. This is an unusual form in protection of names.
There is a lot of similarity between Hungarian and Danish right of name, enough to think about the first names. Either in Denmark and in Hungary a first name cannot denote the opposite gender in relation to the individual who will bear the name. There is a list of names for boys and girls, which is identical with the Hungarian list of first names compiled by Hungarian Academy of Sciences.
Why can this Danish act be interesting for a Hungarian lawyer?
In Hungary the regulations of names were very scattered, so the rules were on every level of the sources of law. Since 2004 this situation is not so unfavourable, but we still do not have one unified act on names as it is in Denmark. So the Danish act can be a good example to examine how we can establish a similar unified regulation in Hungary.
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The Abolitionist Tendency in Hungary: the History of Capital Punishment between the Sixties and the Eighties
Views:95The capital punishment was poena ordinaria throughout the history of Hungary. Nevertheless, it was applied most frequently not in the Middle Ages, but in the 20th century. There have never been so many legal executions in our country, than during the World War One and Two, however in lack of reliable statistical data the precise number of the death penalties is not known even in recent years. There were numerous death penalties imposed in the Fifties as well, mainly in the years of retaliation after the Revolution of 1956. Only in 1961 did the situation get back to normal, when implementation of martial law stopped for good and all. In this year the Parliament of the People’s Republic of Hungary passed the Act V of 1961 on the Criminal Code that permitted the infliction of the death penalty for altogether thirty-one criminal offenses (for nine crimes against the state, two crimes against peace and humanity, eight military offenses and twelve common offenses), but this sanction in no cases was qualified as compulsory, the judge had the possibility to impose an imprisonment sentence for 10-15 years in each times. The Criminal Code’s Amendment, the Law Decree No. 28 of 1971 reduced the number of the crimes punishable by death to twenty-six, although a new capital felony, seizure of aircraft, was introduced as well. In 1978 a new Criminal Code, namely the Act IV of 1978, was drafted in which death was also ordered for twenty-six offenses, of them for a new one, Act of Terrorism. Meanwhile the number of the death penalties carried out persistently decreased (in the Sixties there were 129 executions, in the Seventies there were 47 and in the Nineties there were 32). However, the process of the abolition actually started only in 1983 when a conference was organized by the Hungarian Lawyers Alliance to discuss the future of the capital punishment in the Hungarian criminal law. Nevertheless, the Hungarian abolitionist movement gained strength in deed when the League Against Capital Punishment was formed in 1989. In the subsequent year the League asked the newly established Hungarian Constitutional Court to declare the death penalty unconstitutional on the ground that it was contrary to the right to life protected by Article 54 of the Hungarian Constitution. Eventually this happened in 1990 by Constitutional Court Decision No. 23-AB of 31 October 1990. From this time the practice of capital punishment is irrevocably forbidden in Hungary.
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The Appearance, Development, and Reception of Danger to Society in Hungarian Criminal Law
105-120Views:166The concept of danger to society is perhaps the most controversial element of the Criminal Code's definition of crime. This concept plays a prominent role in the determination of criminal liability in domestic criminal law. In the 20th century, its necessity in our Criminal Code, which was in force at the time, was the subject of debate among jurists of repute in the field of criminal law.
In the socialist criminal law of the pre-communist era, the concept of danger to society was used to express the 'class nature' of criminal law. After the 1990s, this concept - in the science of criminal law, in legislation and in the application of law as well - was cleared of the content elements adopted from Soviet law to serve the aims of party-state policy. Nowadays, the definition of danger to society is so devoid of ideological, party-political connotations that it is regarded by a significant number of legal scholars in the field of criminal law and even by case law as the conceptual equivalent of material illegality, taken from German legal theory (ÚJVÁRI, 2003).
In this paper, I will present the emergence and reception of the concept of danger to society in Hungarian criminal law and criminal jurisprudence, from the preceding period – which applied formal illegality – to the Criminal Code of legal force.
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Contract law effects of the Digital Single Market Strategy on the Hungarian civil law
108-120Views:135The necessity of framing contract law fulfilling the expectations of the digital era is among the main purposes of the Digital Single Market Strategy, that has been introduced by the European Committe in 2015. Within the Strategy two directive proposals have been presented: the directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content and the directive of the European Parliament and of the Council on certain aspects concerning contracts for the online and other distance sales of goods. These include the concept of conformity with the contract, the meaning of which raises several questions to be answered regarding the Hungarian legal system.
My treatise focuses on the investigation of the criteria of conformity with the contract with special regard to the definiton of the directive proposals. In the first place I outline the elements of conformity with the contract, then I attempt to create a comprehensive definition of it. Thereafter I analyse the rules of the Hungarian Civil Code that are connected to the category of the conformity. Furthermore, I investigate the necessity of the integration of the conformity with the contract into the the Hungarian civil law. Finally, I present a future legislative concept that could be regarded as a possible way of adaptation of this legal category.
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The polluter pays principle in the Hungarian civil law, with special regard to the liability for hazardous operations
89-106Views:100The 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. -
Unilateral determination of working time in the effective regulations of labor law
63-80Views:249In 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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On certain interpretation issues of Hungarian collective labour law
77-87Views:74The primary and outstanding legal policy objective of Act I of 2012 on the Labour Code (hereinafter Mt. with its Hungarian abbreviation) is to extend the opportunities of collective autonomy and the regulatory role of agreements concluded between entities subject to collective labour law. With a view to this, the content of the legal institution has been significantly altered, establishing a „complex system” of specific rules that are instrumental in generating a system. The Labour Code is very often characterised as an especially complex piece of legislation, a „law intended for lawyers”, though it is one of the laws that are widely referred to and used, applied by people other than lawyers, including the classic actors (entities) of collective labour law. Below I will underline five regulatory „contradictions” in the area of collective labour law, which due to the lack of sufficient clarity and various ways of possible interpretation might become the source of legal disputes and conflicts of interest between the entities of collective labour law. These critical observations and proposals - which are far from being exhaustive - are related to the conclusion, amendment and termination of collective agreements, and the exercise of certain trade union rights.
Thus, in the paper I will analyse the issues related to the conditions of collective agreements concluded by multiple employers from the perspective of workers (trade unions); the contradictions of the situation of the trade unions becoming entitled to conclude collective agreements subsequently; the possibilities for a trade union losing its capacity to conclude collective agreements and its consequences for the workers (the rate of unionisation dropping below 10% at the employer concerned); the problems related to the various levels of hierarchy in trade union structures; and finally, I will discuss issues of establishing and calculating the working time allowance, the grounds for and problems of its application.
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A new draft of classification of claims: Reinstating of Bankruptcy Rules in the Provisional Judicial Rules
66-77.Views:137After the failure of the Hungarian Independence War of 1848-1849, the neoabsolutism which was the ruling of the Franz Joseph I from 1851 to 1860 reformed the Hungarian legal system. The emperor aimed at legal unification of Austrian Empire therefore he introduced the Austrian codes to Hungary. In 1860 the Austrian emperor eased the absolutistic government attitude with the issuing of the October Diploma and restored the Hungarian jurisdiction and public administration system which functioned before 1847. He charged the Lord Chief Justice, gr. György Apponyi who was recently appointed by him with the realisation of this restitution. That’s why Apponyi summoned a meeting for the Hungarian lawyers in 1861 which called the Conference of the Lord Chief Justice. This assembly specified the material and procedural law for the Hungarian courts.
In this paper I examine the effect of this conference on the bankruptcy law, and I present the provisions of the Conference of Lord Chief Justice concerning bankruptcy law and the driving forces of the regulation based on the assembly’s records. The conference put into force the first Hungarian Bankruptcy Act (Act 22 of 1840) instead of the Austrian provisional bankruptcy procedure. The Hungarian literature typically includes about this regulation that the assembly only adjusted material and procedural rules of the Bankruptcy Act to the requirements of the civil era. I demonstrated with archival sources and views of conference’s participants that the modifications generated bigger changes in the Hungarian bankruptcy practice. In addition, the first appearance of the deed of arrangement without bankruptcy proceedings in Hungary was connected to the neoabsolutism of which the Hungarian lawyers expressed their opinions.
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Discrimination or value creation? – The real value of the wages in the Hungarian public work programme
Views:138The 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.
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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:253Employment 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:59I 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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Domestic violence in a literary work (Zsigmond Móricz, It is nice and good at the end of the world)
66-76Views:510In my study I am going to present a rather complicated issue, namely a few problems of domestic violence based on a less-known short story by the Hungarian writer Zsigmond Móricz. I chose this story because it is still relevant today, it could even be set in 2017, as it basically depicts domestic violence in its complexity. This story by Móricz proves that the phenomenon of domestic violence is not at all new, given that in the beginning or the middle of the 20th century we can see the same complex social problem which present-day criminal law has to face. Hungarian society 50 or 100 years ago was not exempt from domestic violence either. We may also claim that the factors enhancing domestic violence were even stronger than today. The story aligns several dimensions of domestic violence, as it shows examples of both child and wife abuse. I am going to analyse the crimes depicted by Móricz according to the criminal laws effective today, and I just tangentially touch upon the judgment of the offences in the age of writing. This way, first I analyse the questions of child abuse, focusing on the right of punishment, which is still relevant in today’s criminal system as a cause for miscarriage. Then I present a detailed analysis of the bearing of case of partner abuse in the framework of violence in relationships, which exists in Hungarian criminal law since 2013.
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Constitutional processes, a comparative study of the Hungarian constitutional processes (1989-2011)
Views:161In 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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Fragmentation and changes in Hungarian succession law
81-103Views:238The 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.