Search
Search Results
-
The principle of the separation of power in the works of István Bibó
Views:74The purpose of my study is to examine the theories of the separation of powers and its application in different periods. My investigation based on two monograph from Bibó: The Principle of the Separation of Power Sometime and at Present, and Lawfull and Effective Administration, Firm Executive Power.
The ancient philosophers have already dealed with such theories. Among of them Aristoteles has the largest importance defining the three main powers: the legislation, the executive power, and the iurisdiction.
The most substantial step in the Middle Ages was creating the moral basis for exercise of powers. The reformation and the development of civil society has improved this conception, Montesquieu attributed the powers with function, and emphasized the separation of them. Nevertheless István Bibó emphasizes not only the separation, but also the struggle against the concentration of power, and the abuse of power. The principle of the separation of powers could prevail clearly only in the USA, but not in Europe. István Bibó explains the causes of
those in his monograph (The Principle of the Separation of Power Sometime and at Present).,for example the function of the monarcha or the principle of sovereignty.
Bibó defined the obstructive factors in realisation of the principle of the separation of powers. These are: bureaucracy and the exorbitant state role in the economic and in the culture.
In his other monography (Lawful and Effective Administration, Firm Executive Power) Bibó describes the necessary elements of lawful and effective administration, like loyality, professionalism and effective enforcement. At the same time, by realisation of these, the risk of the abuse of power could arise, creation of a new power would be therefor necessary. This power might be a regulatory power, which would be able to define the main criteria of exercise of power. Beforehand the church played that role, but in the twentieth century its function became vacant. I think the function of the new power would be similar to the role of the Constitutional Court at national level, or to the role of the European Court of Justice, of the International Court of Justice, and of the International Criminal Court at international level. -
Functional Analysis of Damage Charges
97-117.Views:196Replacing the legal institution for non-pecuniary damages burdensome by previous theoretical and practical contradictions, Act V of 2013 (Civil Code) introduces damage charges as a separate sanction for violation of personal rights, which has dual functions: on the one hand, it aims for the person being injured in its personal rights receive a monetary allowance that approximates or compensates for the non-material damage suffered. On the other hand, it can also be considered as a punishment under private law for the prevention of similar infringements, as a deterrent.
According to the intended interpretation, the damage charge can only be applied if it is able to fulfill its function, i.e. if no non-pecuniary damage can be detected for which the damage charge is intended for proportional compensation (primarily), it has no place at all since in the case of infringements leaving the personality untouched, only the punitive function would be exercised, which is completely incompatible with the inherently remedial, corrective nature of private law. According to the unanimous opinion of the legal literature, the compensatory function should have priority and private punishment only take precedence of a secondary nature. On the basis of my work, it is noticeable that judges also consider damage charges as a legal instrument to repair the immaterial injuries suffered and to compensate for the lost pleasures of life, and to not order it upon preventive reasons solely, but in the plurality of cases, preventive function is being evaluated as a factor enhancing the amount of the damage. In my study, I wish to analyze from several aspects, how the dual function of the damage charge is assessed by the courts concerning present cases, by highlighting which nature is protruding concerning the amount or the legal basis. As the research is basically empirical, I will examine through as many judgments as possible, what aspects the courts evaluate in the framework of the compensational (e.g.: physical injuries, mental changes, age, family life of the victim, change in lifestyle, etc.) and of the preventive function (e.g. the gravity of the infringement, its protracted nature, etc.). Finally, I would like to answer the central question of my thesis: what function does practice attribute to the payment of damage charges.
-
Civil law notaries within the organization of Roman Catholic Church
55-65Views:96The 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 bases of Kelsen's theory of the state
Views:48Hans Kelsen was maybe the most famous philosopher of positivism. He became known from various theories that he made in the philosophy of law. Evolution was the characteristic feature of his scienfitic achievement. We can see this development for example in the theories 'origin of the state' and 'will of the state'.
In 1925 Kelsen made a resume of his theories. This was the "Allgemeine Staatsrechte", which was followed by the "Grundriss einer allgemeinen Theorie des Staates" (Basic rules of the theory of the state) in 1926, which was the shorter form of the previous resume. The following summary can be made of these studies:
Kelsen made a thorough and detailed examination of the science of law, and realized that the point of view juristical a sociological theories are mostly influenced by the political tendencies. He criticized the dual system of the law of the rules and the law of the individual and he did not make difference between law and state.
State is somehow the order of the human behaviour. State can be only mentioned as order, where human facts and human behaviour are in symphony. When the rules of the state are dominant, people observe its instructions, sometimes in spite of the different rules of nature. The will of the state doesn't mean all the will of every human being of the state, it's different, it means, that all the rules are made by the state are valid.
State is not only some kind of authority and a valid order, which is followed by people of the state, it is also effective. This effective means, that people of the state observe the instructions of the state, they act according to these instructions. The system of the rules don't make this effinence on its own, it is helped by the psychologically processes of human beings, that they are obedient to these rules.
Law and state exist when its authority is felt, and this authority can be felt only in case, when law and state exist. Validity means, that rules must be followed. Validity doesn't depend of efficiency (if it is regularly followed by people). Anyway, the rule which is followed by nobody is not valid, but there is no rule, which is followed by everybody. Permanency is not the prerequisite of validity.
We can draw up the following question: why seems to be different the act of the state to other type of acts. Every act of the state is committed by a human being, nevertheless we consider this act to the state. Kelsen says, that 'state' is a fixed point of special human acts. We can consider an act as natural or normative one. An act is natural, when it is caused by natural processes. But an act, when it is committed by a human, and the same time it is the manifestation of the state, it corresponds to the order of norms. Norms are rules, and if we follow them, our acts can be considered as a normative act.
State can be considered as a group of acts, which can be obtained by force. Obtaining is not the way of enforcing the law, it has got only preventive and deterrent function.
Kelsen sets up the formal an the material definition of the state itself, the definition of state organization, and makes difference of them. Formal state is a larger category, it means the order of law, and all the legal acts. Material state is a smaller category, it contains only some types of norms, like applying the law, and the rules of administration. Material state organization is also a smaller category than formal state organization. It means those acts which are used for obtaining, and also means the function of administration.
In his studies Kelsen criticized the dual system of the law of the rules and the law of the individual and he said, that law and state is the same. State is equal to all the rules of law, and makes them valid. That is why state can be regarded as law.
-
Short Analyses of Basic Definitions of Design Law According to the Practice
62-68Views:67The Committee of the European Union after the issue of the Directive 98/71/EC found that the integrity of the internal market needs an easily accessible uniform protection of designs that covers the whole territory of the Community. For this reason was issued the 6/2002 EC regulation on Community Designs. The most important definitions and the grounds for invalidity are absolutely identical in the directive and the regulation. May aim by this short essay is to interpret the main definitions of design law by analysing some published cases of the Office for Harmonisation in the Internal Market (OHIM). The case law has important role in the field of design law since the requirements of protection and the grounds of invalidity contain a number of unique terms can be construed only by practice. As a consequence of the harmonised design law the practice of the Office can exercise a strong guiding effect not only on the application of community design law but national level design laws in the procedure of the national offices and courts. . 25 (1) point b) is the most used ground for invalidity in practice when a conflict with Art. 4-9. occurs. Within this point lack of novelty, individual character and prior disclosure shall be mentioned first of all. In the relation of novelty and individual character it seems of the cases that lack of novelty always excludes any further examination of individual character since individuality can be considered a narrower definition of novelty. By analyzing the overall impression produced by a design to an informed user the Office always underline that the difference must be instantly and obviously recognizable. The impression shouldn’t be based on through examination of the informed user. The invalidity division stated that any prior design in important databases on internet shall be deemed to be known by the specialised circles and can result the disclosure according to the regulation. In connection with features dictated solely by its technical function the Office stated that designs contain only elements of merely technical purpose (in this case an engine block and engine parts) specific position of such elements and the general impression of the whole enough to provide legal protection for such features. There is no ground for invalidity pursuant to this reason if the same technical function can be achieved by different design.
In my essay I focused on the most the above mentioned most relevant parts of some definitions. My future plan is to analyse the differences between the legal practice of different European countries concerning this issue.
-
On theoretical bases of Constitutional Court's activity
86-91Views:88The paper researches preliminarily the problem of norm-control versus social-control. It criticizes the logical and normative approach of Consctitutional Court’s activity, pointing out this function necessarily deals with values. The paper introduces the ideological and historical antecedents of modern institutional norm-control, touching Grecian and early American ideas. The article finally refers spread of Constitutional Courts and some problematical phenomena of Hungarian Constitutional Court's activity.
-
Peter Goodrich and the Satirical Legal Studies
Views:40Satirical Legal Studies is a study by Peter Goodrich, written in 2005. It was published in Michigan Law Review. I wrote my essay with the purpose of analyzing the main points of this study because – as I know – it has not been translated or published in Hungarian yet.
Goodrich gives a comprehensive analysis of the history of the satirical genres, making comparisons, revealing the most important characteristics of these kind of writings. It is the function that distinguishes simple humour from satire and especially legal satire. Satire uses humour as a tool for pointing out to relevant legal matters that need to be changed, so it can easily be admitted that the purpose of satire is reform itself. It means also that the satirical tendencies in jurisprudence have always become stronger in times of need for reforms but we can state that independent of this satire has (more or less) always been present throughout the history of jurisprudence.
Satire has classical, antique traditions that show us the connections between satire and politics or literature. The literary vein of satire or legal satire is less radical than the other one which is in close connection with politics. The latter, more radical form is called Menippean satire and the style of it has always been a certain call for reforms, it always represented a certain social urge to change some relevant legal matters.
The study deals with the problems of metaphysical nonsenses in the territory of law, such as for example law would be God made, or it could be unchangeable. Satirical Legal Studies clearly states that these are all contradictional nonsenses. Besides this Satirical Legal Studies has always represented and fought against the social injustice and the injustice of legal institutions.
These main points guide us to the figure of the Bad Man, whom the author, Goodrich features as the immunological power of the society revealing all the serious social affairs waiting for an answer. Taking all these facts into consideration the Bad Man is not a tool for the idea of Bad, what’s more: he is or can be the cure for a society’s illness if the legal system does not ignore him and his voice at all because his decadence is only the decadence of the certain time and place that he is a part of. The role of satire is to face the legal system with the pure reality and needs in order to become adequately reactive.
-
What are the limits? - Thoughts about Certain Issues of the Active Judicial Role
61-73.Views:177The Act CXXX of 2016 on the Code of Civil Procedure introduced the image of the managerial judge into the Hungarian civil litigation. This perception means that the judge has to take part actively in the litigation. It is not just the notion of the Hungarian legislator but it is also an international requirement. The new principle – so called court inducements – entitles and obligates the judge to offer some kind of support to the parties in order to faciliate to concentrate the actions. That means the judge has to conduct substantively the proceedings, which may expand on the merits, if the party’s case initiation statement is incomplete, not sufficiently detailed or contradictory. However, this support is not equal to giving advices like a legal counsel does. The judge can not overtake the function and task of neither the party nor the legal counsel. The judicial activitiy is meant to provide the party’s opportunity to enforce his claims and a proper level of legal protection. This image of an active and managerial judge originates from the Austrian social model of litigation which goes back to 1895. But it is also not unfamiliar to the Hungarian litigation because the Act I of 1911 on the Civil Procedure was based on an active role of the judge too. My goal is to ascertain what the essence and function of the active role of the judge is. I also examine that in what kind of situations and in what procedural phases the judge can offer support to the parties. Furthermore I intend to define the limits of the judicial management. In addition, I analyse how some interpretative organisations view the issues that appeared in the judicial practice.
-
The essential aspects of the protection of wages in Hungarian labour law’s regulation and legal practice
27-37Views:35The aim of my publication is to scrutinise the Hungarian rules concerning the protection of wages and concluding how effectively they serve the social interests of employees. Furthermore, I researched if the regulation is efficient and consistent enough to protect the employees in point of the compensation for work.
During the research, I was examining the efficiency of the protection of the employees and their salaries in practice. The other question was whether the current regulation is satisfactory enough to provide the main purposes. In order to answer these questions I was analysing the theoretical dimension and the judicial practice as well.
I concluded that even if there are some incompleteness and inconsistency in the Hungarian labour law, the regulation seems appropriate and rational concerning the interests of the employees. In my opinion, the social function of labour law serves the employees’ interests enough to give them a decent standard of living.