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Freedom of contract’s role in the economic regulatory
Views:130The 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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Academic freedom in the jurisprudence of the Hungarian Constitutional Court
Views:44The change of political regime in Hungary has also brought about a democratic commitment to the constitutional guarantee of human rights and fundamental freedoms. Among other freedoms, academic freedom was redefined in positive constitutional law, and the stage for judicial interpretation was set. The Hungarian Constitutional Court has been in operation and delivering rulings for almost two decades now, also shaping the contents und guarantees of the fundamental right inherent in academic freedom. In the Court’s case law, academic freedom has been reflected upon chiefly in two aspects: first, from the viewpoint of the freedom of scientific research and the access to historic archives, bearing a great potential for the post-communist society in facing its burdensome history and dealing with past grievances and, second, as the guarantee of the autonomy of institutions of higher education, gaining relevance in the last few years in the light of the reformed Act on Higher Education. However, academic freedom has remained a neglected field of study of constitutional law scholars, and a detailed elaboration of this fundamental freedom has yet to be undertaken.The present article offers a brief insight into the jurisprudence of the Hungarian Constitutional Court related to the concept and scope of academic freedom. As an illustration, the recent case law related to the autonomy of institutions of higher education is introduced, with an attempt to sketch the judicially set guarantees and limits of this fundamental freedom.
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Criminal offences that infringe on individual freedom versus restrictions imposed during the pandemic to guarantee access to education
12-22.Views:127In the study we propose as follows, we will look at differences in perception between the pandemic constraints imposed by the governmenst of countries affected by the pandemic in view of managing the pandemic and society’s perception that governments have deprived citizens of their freedom by restricting their mobility and imposing restrictions with regard to travel, including in order to attend educational activities. In some cases, the communities affected by the restrictive measures have gone further, accusing governments of the crime of “Illegal Deprivation of Freedom”, which is included by the legislator in the criminal codes of countries. We consider that the accusations brought against the authorities are unfounded, exaggerated, and thoroughly wrong. We believe that they are due to communication gaps in the public domain, the differences in perception of community members in the context of changing paradigms and the insufficient legal education, which leads to confusion between illegal deprivation of freedom and limitations or restrictions. Although, in the legislation, the articles that provide for the criminal offences relevant to the matter are included in the criminal (penal) codes, for example, in the Romanian legislation in Article 205 of the Criminal Code, with the marginal name “Offences against Individual Freedom” of Title I, which bears the marginal name “Offences against the Person”, and falls within the area of interest of legal sciences, we will analyze the effects in relation to the limitations and restrictions imposed by the authorities for the management of the pandemic. To this end, on the one hand we will highlight the aspects of material criminal law necessary for the legal classification of a deed as offence of illegal deprivation of freedom, in accordance with the provisions of the Criminal Codes of Romania, Hungary, Republic of Italy, Greece, and on the other hand, we will present some aspects regarding the management of the coronavirus crisis in the area of education.
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From the patient's right of contact
Views:106Man is a social animal, it is important for colleagues to meet, create a relationship with them, to communicate, ideas, exchanging information. Human relationships are determined by the identity of a specific person, place in society, so it should be a fundamental right for all people in contact with the law. However, in certain life situations exercising these rights is necessarily limited, undermined, need frameworks. One of those situations in life with participation in health care in which the patient has to adapt in health care provider operating schedule, however, the Trustee is required to ensure the exercise of the right contacts.
The most prominent of patients' rights to human dignity, which is inferred from a mother right, from which a number of other important rights. One of these is the right to self-determination, which guarantees freedom of action of the human as an individual incapacity depending autonomous. For patient care recipients should be subject to the fundamental distinction that whether it is inpatient or outpatient care. In the latter case, it also suffers from significant limitations on the patient's right to self-determination , including personal freedom, opportunities for contact with other people. The right to self-determination in a specific part of the realization of rights is thus involved in the regulation of the contact, as during inpatient care plays an important role.
In today's modern society, the means of communication, networks of past explosive development, get more involved in the exercise of the right to life, human relations than before, with the elimination of the technical obstacles the spatial and temporal obstacles easily can be prevented. Life situation of the theme chosen exercise of the right of communication is of particular importance, because the patient's recovery depends not only on only physical but also mental condition, recovery can define what social relations, quality, intensity. The correspondence law of the health care law more the privileges include such other persons entitled to take the patient's inpatient sanitation place either in writing or orally to maintain contact, to receive visitors, the people he set out to exclude the visit , prohibit the fact of his treatment or the other information related to medical treatment reveals other.
The context of the law of correspondence can be said that relatively little addressed by legislators and by expanding the scope of the practice of law in the content, but would consider appropriate where more attention is added. It would be good detailed arrangements for the exercise of creating the right framework for the so - to clarify the scope of everyday objects, to establish rules for their use of health services that are appropriate for the task to allow the exercise of these rights - the first line telecommunications.
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Theoretical issues of equal treatment in relation to the legal classification of labour law
57-79Views:157There are many national and international academic debates on the classification of labour law. On the one hand, labour law can be categorised as private law when we consider the establishment of employment relationships. The legal basis for an employment relationship is exclusively the employment contract, thus labour law belongs to classical private law. On the other hand, the content of the employment relationship can be determined not only by the employment contract, but also by a number of other rules. These norms typically have public law content and, as so-called public law elements of labour law, seek to limit the contractual freedom of the parties. The existence of public law elements is typically justified by the legislator on the grounds that there is subordination between the parties in the employment relationship, so that the contractual balance of rights, which is characteristic of private law, is shifted in favour of the employer. The presence of elements of public law, and in particular the requirement of equal treatment, is intended to redress this imbalance in employment law by limiting the contractual freedom between the parties. In the present article, we examine in particular whether the presence of public law elements gives labour law a specificity of its own. In addition, focusing on the principle of equal treatment, we examine how the prohibition of discrimination in labour law and classical private law can be interpreted and whether this general behavioural requirement is capable of redressing the balance that has been shifted between the parties. Finally, we ask the rhetorical question: if the requirement of equal treatment is capable of redressing the balance, why is there a need for additional public law elements in labour law?
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Simplification of civil procedures in the European Union, the regulation of small claims procedures in particular
Views:33Introduced to reduce obstacles to the free movement of goods and persons, judicial cooperation in civil matters has become part and parcel of the new European area of justice. Creation of this area is meant to simplify the existing legal environment and to reinforce citizens' feeling of being part of a common entity. The Conclusions of the Tampere European Council state in this respect that “in a genuine European Area of Justice individuals and businesses should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal or administrative systems in the Member States.”
At present, the judicial cooperation in civil procedures is based on the Hague Programme, adopted by the 2004 Europen Council in Bruxelles.The Hague Programme requires that the Commission should translate the Hague objectives into concrete measures. To this end, the Annex to the Communication from the Commission to the Council and the. European Parliament on the Hague Programme, consists of an Action Plan listing the main actions and measures to be taken over the next five years, including a specific set of deadlines for their presentation to the Council and the European Parliament.
The chapter dealing with this area is named „Strengthening justice”, and it includes amongst others the following tasks:
- Specific Programme on Judicial Cooperation in Civil and Commercial Matters (2007)
- Support by the Union to networks of judicial organisations and institutions (continuous)
- Creating a „European Judicial culture”
- Evaluation of quality of justice (Communication - 2006)
- Creation, from the existing structures, of an effective European training network for judicial authorities for both civil and criminal matters (2007)
The European Union has set itself the objective of maintaining and developing the European Union as an area of freedom, security and justice in which the free movement of persons is ensured. For the gradual establishment of such an area, the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters needed for the proper functioning of the internal market.
The Community has among other measures already adopted Council Regulation (EC) No 1348/2000 of 29 May 2000, on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters; Council Decision 2001/470/EC of 28 May 2001, establishing a European Judicial Network in civil and commercial matters; Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004, creating a European Enforcement Order for uncontested claims; Council Directive 2002/8/EC, of 27 January 2003, to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes; Council Regulation (EC) 2201/2003, of 27 November 2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) 1347/2000; Regulation (EC) No 805/2004, of the European Parliament and of the Council of 21 April 2004, creating a European Enforcement Order for uncontested claims; Proposal for a regulation of the European Parliament and of the Council creating a European order for payment procedure; Proposal for a regulation of the European Parliament and of the Council establishing a European Small Claims Procedure.
The disproportionate cost of litigation for small claims has led many Member States to provide simplified procedures for claims of small value which are intended to provide access to justice at a lower cost, thus influencing one of the three factors that determine the rationales in dispute resolution. The details of these procedures have been investigated and documented in detail in studies prepared for the Commission. The evidence from these reports suggests that the costs and timescale associated with the domestic simplified measures, and thus their use and utility to claimants, varies widely. A 1995 study for the Commission found evidence of how costs of cross-border claims were significant compared to the size of most potential claims, and that these costs varied substantially between Member States. The total costs of pursuing a cross-border claim with a value of € 2.000 was found to vary, depending on the combination of Member States, from € 980 to € 6.600, with an average quoted figure of € 2.489 for a proceeding at the plaintiff’s residence. The study also showed that due to different and conflicting costing rules part of the costs have to be paid even by successful plaintiffs.
On 20 December 2002, the Commission adopted a Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation. The Green Paper launched a consultation on measures concerning the simplification and the speeding up of small claims litigation.
The European Small Claims Procedure is meant to simplify and speed up litigation concerning small claims, whilst reducing costs, by offering an optional tool in addition to the possibilities existing under the laws of the Member States. This Regulation should also make it simpler to obtain the recognition and enforcement of a judgment given in a European Small Claims Procedure in another Member State, including judgements which were initially of a purely domestic nature. In order to facilitate the introduction of the procedure, the claimant should commence the European Small Claims Procedure by completing a claim form and lodging it at the competent court or tribunal. In order to reduce costs and delays, documents should be served on the parties by registered letter with acknowledgment of receipt, or by any simpler means such as simple letter, fax or email. The procedure should be a written procedure, unless an oral hearing is considered necessary by the court. The parties should not be obliged to be represented by a lawyer. The court should be given the possibility to hold a hearing through an audio, video or email conference. It should also be given the possibility to determine the means of proof and the extent of the taking of evidence according to its discretion and admit the taking of evidence through telephone, written statements of witnesses, and audio, video or email conferences. The court should respect the principle of an adversarial process. In order to speed up the resolution of disputes, the judgment should be rendered within six months following the registration of the claim. In order to speed up the recovery of small claims, the judgment should be immediately enforceable notwithstanding any possible appeal and without the condition of the provision of a security. In order to reduce costs, when the unsuccessful party is a natural person and is not represented by a lawyer or another legal professional, he should not be obliged to reimburse the fees of a lawyer or another legal professional of the other party. In order to facilitate recognition and enforcement, a judgment given in a Member State in a European Small Claims Procedure should be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition. Since the objectives of the action to be taken namely the establishment of a procedure to simplify and speed up litigation concerning small claims, and reduce costs, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article this Regulation does not go beyond what is necessary to achieve those objectives.
The European Council underlines the need further to enhance work on the creation of a Europe for citizens and the essential role that the setting up of a European Area for Justice will play in thisrespect. A number of measures have already been carried out. Further efforts should be made to facilitate access to justice and judicial cooperation as well as the full employment of mutual recognition. It is of particular importance that borders between countries in Europe no longer constitute an obstacle to the settlement of civil law matters or to the bringing of court proceedings and the enforcement of decisions in civil matters.
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Doubtful questions in connection with the effectiveness of insurance contracts
Views:48The 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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Substantive conditions of asylum detention in the light of EU law
21-31Views:101Hungary lies in the route of the stream of refugees coming from the Balkan. It is a transit country, so the refugees do not typically intend to stay here, they rather wish to travel torwards to West- and North Europe. Particular sections of Hungary's border also mean the external borders of the European Union, the area of freedom, security and justice, which has a common asylum system. Significant part of illegal immigrants presents asylum claim only to avoid the aliens procedures.
From the 1st of January 2013, the legislature terminated the aliens detention against asylum applicants. From 1st of July 2013 the Hungarian legislature reintroduced the possibility of detention of applicants. The new regulation has been placed in Act LXXX of 2007 on the Right of Asylum, Sections 31/A-31/H by Act XCIII of 2013 on the Amendment of Particular Laws Concerning Law Enforcement. The introduction of asylum-seeker detention and the practice of its application have raised dust. In my essay I am introducing the connections between the reasons of ordering asylum-seeker detention in the Act on Asylum and its backgroud in the EU Directive. I am not dealing with the question of compatibility of asylum detention and human rights and with problematic procedural issues, because I consider it more important to review the substantive conditions of asylum-seeker detention and the certain practical questions of its application therefore I am focusing on this segment of jurisdiction.
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The new civil law regulation on associations in the mirror of Constitutional Court Rulings
Views:84After the creation of the Basic Law of Hungary, and following a drawn discussion Act CLXXV of 2011 on the Right of Association and the Operation and Funding of Civil Society organizations has come into force (hereinafter referred to as Civil Act). The Civil Act repealed a lot former provitions, thus the Act II. of 1989 on the Right of Association, the law concerning non-profit status, and the provitions related to association of the previous Civil Code. The new Act V of 2013 in the Civil Code has also brought significant changes according to associations.
The base of the rules has changed considerabely, as the permissive legislation, and the freedom of the parties has become the main line.
At present to association the Civil Act, the new regulations about the court registration of associations – such as Act CLXXXI of 2011 –, and the provisions concerning legal persons and associations of the new Civil Code should be applied.
Since the relevant legal regulation has changed, the previous judicial practice is not applicable, courts have to answer the questions among the new legal circumstances as well. However it is sure that the basis of association is the right of association which is a constitutional fundamental right. Due to these significant changes in this paper I have examined those important Constitutional Court Rulings which can be connected with the right of association, and I have tried to compare the decisions of the Constitutional Court with the new present regulation.
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Cross-Border Mergers and Acquisitions in Light of the European Legal Framework
1-12Views:150This paper will discuss the role that Mergers and Acquisitions play in the global economy. It will deliberate on the challenges, benefits and issues of the implementation of these transactions in terms of legality, society and culture. It also contains an empirical enquiry that investigates the application of Mergers and Acquisitions in the presence of different social and cultural working environments. It also demonstrates attempts of entering into such transactions with incorrect intentions such as domination and the negative outcomes of such approach.
Throughout this work, I will investigate the legal instruments governing these types of transactions in different areas of the world, specifically the European Union. It will touch on the legal instruments governing Mergers and Acquisitions in the European Union and will challenge the applicability of the fundamental freedoms of the European Union in light of the cross-border Mergers and Acquisitions directives. The paper will challenge the European Court of Justice’s approach to the Freedom of Establishment and the application of cross-border M&As.
Finally, a clear demonstrateion of the fallbacks of the provisions of the Cross-Border Mergers Directives is provided as well as challenging the European legislature’s choices in drafting said directives. Unusual discrepancies between the directives and the fundamental freedoms of the European Union are shown, however these two which must always be in line with one another.
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Questions around prescription by title
81-89Views:384In 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.
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Interpreting freedom of contract in modern civil law
Views:133A szerződések joga a polgári és kereskedelmi jog egyik legdinamikusabban fejlődő jogterülete napjainkban. A szerződéskötési technikák, a szerződések teljesítése, valamint a szerződéstípusok köre is új tartalommal telítődik. A jogterület fejlődésének és népszerűségének alapköve a római jogban gyökerező szerződési szabadság mai napig fenntartott tétele. A szerződési szabadság négy fő aspektusa (szerződéskötés szabadsága, partnerválasztás szabadsága, típusszabadság, tartalom szabadsága) biztosítja, hogy a szerződések jogának szabályai könnyen alkalmazkodnak a társadalmi, gazdasági változásokhoz. A szerződő felek jogviszonyukat személyre szabottan alakítják, az e köré keretet építő kontraktus szabályait nagyfokú szabadsággal formálhatják. A szerződések jogának alapelve a modern jogrendszerek alappillére, azonban értelmezése, megítélése államonként és időszakonként változik. Ez a változás sosem tekinthető visszalépésnek, vagy az alapelv lényegi jelentését átértékelő, lerontó változásnak. Az azonban kétségtelen, hogy a szerződési szabadság alapelvi szintű elismertsége egyes nemzetek jogrendszerében valódi operatív alapelvként jogvitát eldöntő, joggyakorlatot fejlesztő mozgatórugó, míg más nemzetek jogalkotásában és jogalkalmazásában az állandóság megtestesítője e gyorsan változó jogi környezetben.
A tanulmány a szerződési szabadság aspektusainak jelentéstartalmát elemzi a kontinentális és az angol-amerikai jogrendszerek írott szabályainak és jogalkalmazási gyakorlatának függvényében. A jogtudomány értelmezései, konkrét jogesetek szentenciái, valamint az írott jogforrások indokolása adja a tanulmány kiindulópontját. A szerződési szabadság korlátlan érvényesülését „lerontó” szabályok (pl. szerződéskötési kötelezettség, formakényszer, stb.) az alapelv céljának és létének fényében kerülnek vizsgálat alá. Az angolszász rendszerekben az alapelv által generált jogfejlesztő értelmezés a kontinentális jogok lassan változó szemléletével ütközik.
A tanulmány célja, hogy a szerződési szabadság alapelvének funkcióját megvilágítva bemutassa azt a lineáris jogfejlődést az európai jogi tudományosságban, mely a mai tartalommal ismert alapelvet alkalmassá teszi a szerződések jogában fejlődést generáló és iránymutató szerepkör betöltésére.
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Validation of the claim for paid leave
127-152Views:94The study covers the most important rules regarding leave, with the aim of helping employees and employers deepen their knowledge of how to grant leave. In this context, the study covers what should be done with leave not granted until the end of the year, whether the economic interest of the employer can justify its interruption, whether and when it can be redeemed for money, and how long the request in this direction can be asserted, i.e. when it occurs the statute of limitations. Furthermore, it covers what the solution is in the event of the termination of the employment relationship, when the employee has taken less or even more leave than he or she would have been entitled to in proportion to the time, focusing on who needs to prove what to successfully enforce the claim, and what is the importance of it the employer's registration obligation. In addition to the European Union and domestic regulation of freedom, the study included some guiding decisions of the Court of Justice of the European Union and the Curia, on the basis of which the conclusion can be drawn that the courts try to give the correct interpretation of the legislation in the individual cases that come before them, which are precedents due to their nature, they are also binding in other matters.