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The Interpretation of Tax Law in the Precedents of the United States of America
Views:339The proper interpretation of the legal provisions in the field of tax law has high importance because it determines the opportunities of the taxpayers. Taxpayers normally wish to pay as little tax as possible, in contrast, the tax authorities try to collect as much tax as, according to them, is still lawful. If a taxpayer makes an error in his legal interpretation, he has to face the legal consequences, that is why it is necessary to know the case law. In the English law and in the law of the United States, two fundamental approaches of the interpretation of tax law have emerged: according to the strict approach, the judicature has to scrutinize only the meaning of the words of the act and that is what determines the question of the tax burden. On the other hand, the other approach means that the purpose of the questionable transaction or the intention of the legislator shall be taken into consideration as well, but only in that case in which the application of the words would lead to an unreasonable result. This paper analyzes the relevant precedents of the United States, mentioning many examples and scrutinizes the theoretical bases and the application of the two approaches mentioned.
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Problems of textual empiricism
126-139Views:202In this paper the authors make some critical comments on Blutman László’s legal methodology. They argue for the claim that legal cases cannot be solved by applying the methods of natural sciences. Law is an interpretive social practice, therefore legal texts can have more than one equally justifiable interpretation which can be in conflict with each other. Correct legal decisions, especially in hard cases, are the result of resorting to the justifying principles and purposes of law and cannot be achieved by using ‘textual empiricism’ as a legal methodology.
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On the Road to Change? Attorney's Fees Not Recognised by Court Practice: Legal Loophole or Misinterpretation of the Law by the Court?
107-134Views:166Nowadays, it is generally accepted that the lawyers are an essential part of the judicial system, despite the absence of any reference to this in the constitution or other normative provisions. In a market economy, there is no question that a lawyer is remunerated for the work he performs, and that the lawyer receives this remuneration in the form of fees or reimbursement of expenses from the client who has concluded a contract of engagement with him. In the case of litigation, however, the costs incurred by the lawyer's client may be passed on to the opposing party, since, as a rule, the costs of the successful party, including the lawyer's fees, are to be paid by the unsuccessful party. This paper examines the basic legal provisions that ensure the enforcement of attorney's fees in civil court proceedings, and then presents a number of striking cases that demonstrate that the attorney's representation of his client in civil proceedings is either not compensated at all or only partially compensated in a manner recognised by the court, in the form of a formal injunction binding the opposing party. In the present paper the adequate issues related to the provision of legal representation in civil litigation are presented, on the one hand, from the procedural law and litigation efficiency aspects, on the other hand, from the contractual freedom and thirdly, from the constitutional law aspects, focusing on the judicial practice. The study describes the change in judicial practice in the spring of 2024. The author seeks an answer to the question whether the principles established by the court practice were due to a legal error, and therefore whether legislative action to eliminate the discrepancies was justified, or whether it was simply a case of an erroneous interpretation of the law by the courts before the spring of 2024, which justified only a change of approach in the court practice within the framework of the existing legal regulation, and therefore no further legislative intervention is necessary.
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Legal interpretation issues regarding the status of the trade unions
79-95Views:727The unique purpose and role of trade unions is the protection of the employees’ social and economic interests. As compared to the previous concept, the applicable labour code introduced a conceptually new approach with respect to collective labour law, including the purpose of trade unions, reducing the trade unions’ rights to such a minimum level which shall be generally granted for a civil organization operating in the interest of a certain purpose. In my study, some legal interpretation questions –without the ambition to be exhaustive – that arise in practice come under analysis, which highlight in a crystal clear manner the question as to what sort of practical issues are raised and interpretation possibilities are opened by certain items of the Hungarian labour law regulation in connection with the legal status of the trade unions and the exercise of their rights.
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The Basic Thesis of the State Theory of Győző Concha: "Theory of Constitiution"
133-160Views:370Győző Concha’s book “Politika”, published in 1895, is still relevant for the understanding of the theoretical problems in constitutional law. Thus, it is important to analyse the peculiar use of constitutional terms in his theory in order to understand his unique interpretation of the concept of the constitution and its relevance for political and legal philosophy. The methodological goal of the research is to present the meaning of the concepts used by Concha, and to highlight their functional role. It is also an important question as to how Concha’s constitutional theory was incorporated into his political philosophy, and how these concepts are interpreted in today’s political and legal terminology. It is also the paper’s aim to “translate” Concha’s vocabulary and constitutional theory into the language used in 21st century constitutional theories, and to present and evaluate the relevance of his constitutional theory in understanding the current constitutional problems of political communities.
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Fundamental Sources of Working Time Organisation from a Historical Perspective: Status or Contract?
39-59Views:136The concepts of status and contract are well-established and frequently used analytical categories of good explanatory power in classical and contemporary international labour law literature. Since the interpretation of these concepts varies from era to era and from author to author, recent Hungarian legal literature has paid little attention to the interpretation of legal developments along this theoretical framework, although it could serve as an effective reference point for grasping the trends of existing law. This paper attempts to apply these concepts to describe the regulatory trends in a volatile and conflictual area of law, namely working time.
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Opinion or statement of fact?
48-68Views:328Press correction is a special way to defend personality rights on the basis of civil law. Its main objective is that if someone states or rumours a false fact or makes a fact appear untrue about a person in a given publication, the affected person has the right to submit his claim – as soon as possible – in order to have a rectifying communication be given out in the particular publication showing which part of the injurious publication states false, unfounded facts or makes a fact appear untrue and what is the reality. If the publisher does not satisfy its duty to correct the injurious publication voluntarily, the affected person – in a short period – has the right to enforce his claim for press correction in an accelerated judicial procedure which allows only restricted production of evidence.
The most frequent question of the press correctional lawsuits is whether the content of the publication turns out to be a statement of fact or an opinion. The opinion, assessment, critique and debates about society, politics or art cannot serve as a basis for press correction. The statement of fact is a declaration about a given momentum of reality, the assertion or rumour that something has happened in a certain way or that something really exists. In opposition to the statement of fact, the opinion expresses a value judgement or critique, and false facts cannot be concluded from it even indirectly. It is hard to define on an objective basis if a declaration is a statement of fact or an opinion. As life creates a wide range of various situations, the developing legal interpretation by the judicial practice has a great impact especially as regards the distinction between a statement of fact and an opinion, the interpretation of the publication or the determination of the content and form of the press correction.
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The Transfer of Contract on the Basis of Statutory Provisions: Novation or Succession?
7-27Views:315In 2016, the Act CLXXVII of 2013 on the Transitional and Authorizing Provisions related to the Entry into Force of Act No. V of 2013 on the Civil Code (’Ptké.’) was amended, with questions of interpretation arising regarding the transfer of contract on the basis of statutory provisions. Therefore, after a short period of rest, the transfer of contract, the novation, and their relationship again became the focus of the attention of both legal scholars and practitioners. After a short introduction of the legal provisions on the transfer of contract, the amendment of 2016 and its reasons are reviewed. Then, both the controversies that emerged in the judicial practice and the answers given by the Hungarian Constitutional Court and the Curia are examined thoroughly.
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Historical Salvage as Investment: The Effect of an ICSID Judgment on Two Legal Areas
101-110Views:161In 2007 the ICSID concluded that MHS’s contract with Malaysia to undertake complex salvage operations considered investment even if it had not significantly contributed to Malaysia’s economic development thus failed to fall within the scope of the former interpretation of the notion of investment. This decision is significant in the sphere of international investment law as it synthesizes the former practice of the ICSID concerning the definition and conceptual elements of the notion of ’investment’. Besides, the Diana case serves for the enlargement of salvage law; however it can- not be defined as a classical source of law. It gives a new way to legal protection for salvage activity thus it contributes to the orientation in the chaotic mass of mainly customary rules related to shipwreck salvaging.
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The Legal Practice of Harassment by Threatening: A zaklatás második alapesetének joggyakorlata, különös tekintettel a halmazati és elhatárolási kérdésekre
219-238Views:218The Criminal Code of Hungary has contained the criminal offence of harassment since 2008 (Art. 222 of the current Criminal Code). The criminal definition contains three different statutory conducts: (1) disturbing or bothering behaviours (2) „dangerous threat” and (3) „awakening appearance of danger”. Many examples in Hungarian legal practice show that the prosecutors and judges face huge difficulties in the interpretation of these types of harassment. The main questions are: Which behaviours can fulfil the statutory elements of „harassment by threatening”? How can we define „threat” and „awakening appearance of danger” as a conduct? How can they be distinguished? Which other delimitation questions arise? this paper aims to answer these questions.
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Withdrawal from the European Union: Article 50 TEU and Brexit
97-117Views:548The unilateral right of a member state to withdraw from the EU is an entirely new feature of EU Law introduced by the Lisbon Treaty. The practical application of the withdrawal clause was placed on the agenda as a result of the 23 June 2016 Brexit- referendum in the UK. The exit raises some non-legal and legal, theoretical and practical issues which – as we are talking about an unprecedented event – have to be elaborated on now. The paper analyzes Article 50 TEU by analytical methods, summarizing the incomplete frameworks, the main procedural rules, and those issues that require the interpretation of the Court of Justice of the European Union. The paper aims to highlight the points of the withdrawal clause that have interpretative gaps, which might not have been unintentionally left by the EU legislator.
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Groundwater protection in the light of a judgment of the Supreme Court of Hungary
178-191Views:324In the study the author analyses a judgment of the Supreme Court of Hungary, in which a progressive judicial interpretation is included concerning the obligation of fact-finding in connection with the protection of groundwaters. Before this, the author presents the legal doctrine regarding groundwater regulation. The regulation is not only drawn up on the national level, but also on the level of European Union. After the detailed presentation of the case, the author makes some conclusions.
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The Temporal Scope of the German Criminal Code
149-172Views:524The problem of temporal scope is also reflected in Germany’s criminal law. Its essence is the usage of the more lenient law in the case of the difference between the law of perpetration and the law of decision-making. The German Criminal Code has a 150 year history, with the original version being around 170 years old. It’s respectable age allows us to conclude that it has a stable character, however due to its countless modifications there has always been a significant problem – and there still is today – in relation to its interpretation. This study also provides a brief outlook on the regulation of the temporal scope in other German-speaking countries.
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Impact Assessment of Environmental Legislation and Strategic Environmental Assessment in Practice
85-102Views:193The study deals with the system of the impact assessment of environmental legislation in Hungary. The system can be divided into three parts, these are the environmental aspects of general impact assessment, the environmental impact assessment of legislation and the strategic environmental assessment. The aim of the study is to evaluate these tools and to draw up the possible ways of legal interpretation and development. The study offers an evaluation of the theoretical basis with consideration to a practice-oriented approach.