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Depriving the Debtor’s Essential Obligation of its Substance and its Remedies under the Provisions of Article 1170 of the French Civil Code 根据《法国民法典》第1170条的规定剥夺债务人基本义务的实质内容及其救济
Pub Date : 2020-05-25 DOI: 10.5539/jpl.v13n2p129
Y. Shandi, Osama Ismail Mohammad Amayreh
In 1994 and thereafter, the French judiciary set a trend by utilizing the causation theory to revoke the exemption clauses of liability that constitute a violation of the contract’s essential obligations. This utilization was intended to restore economic equilibrium to the contract, in order to achieve the benefit each party seeks from concluding a contract. However, in 2016, the new amendments of the French civil code -which were issued by decree no: 131-2016- abolished the causation theory in general. Nevertheless, they retained the previous French judicial trend based on causation theory, where Article 1170 of the new amendments states clearly “any contract term which deprives a debtor’s essential obligation of its substance is deemed not written”. However, Article 1170 of the new amendments did not specify what is meant by an essential obligation? When does the contract’s term result in depriving the debtor’s essential obligation of its substance? Moreover, Article 1170 consolidates an individual penalty which may cause many legal problems. These problems are: the matter concerns an essential clause in the contract and not a secondary one, the other clauses of the contract remain valid as they have been, without any modifications or replacements and, in some cases, abolishing the clause itself might lead to further imbalance in the contract. Therefore, the legal provisions of Article 1170 should be analyzed in an analytical approach along with the previous French judicial trend with respect to these provisions. As a result, the research illustrates the urgent need to amend Article 1170 of the new amendments, in order to contribute to the stability of the economic contractual equilibrium.
1994年及以后,法国司法运用因果关系理论,撤销构成违反合同基本义务的免责条款,开创了一种潮流。这种利用的目的是恢复合同的经济平衡,以实现每一方从订立合同中寻求的利益。然而,在2016年,法国民法典的新修正案——由第131-2016号法令发布——普遍废除了因果关系理论。然而,它们保留了以前法国基于因果关系理论的司法趋势,其中新修正案第1170条明确规定“任何剥夺债务人基本义务实质内容的合同条款视为未书面”。然而,新修订的第1170条并没有具体说明什么是基本义务。合同的期限何时导致债务人基本义务的实质被剥夺?此外,第1170条合并了可能引起许多法律问题的个人处罚。这些问题是:该事项涉及合同中的基本条款而不是次要条款,合同的其他条款仍然有效,没有任何修改或替换,在某些情况下,废除条款本身可能导致合同进一步不平衡。因此,第1170条的法律规定应结合法国以往对这些规定的司法倾向,用分析的方法加以分析。因此,研究表明迫切需要修改新修正案的第1170条,以促进经济契约均衡的稳定性。
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引用次数: 1
Extraterritorial Jurisdiction: From Theory to International Practices and the Case of Vietnam Law 域外管辖权:从理论到国际实践与越南法律案例
Pub Date : 2020-02-29 DOI: 10.5539/jpl.v13n1p151
Thi Minh Phuong Tran
Extraterritorial jurisdiction is a concept that has been studied and applied for a long time in the legal practice of a number of states. With the evolution of international law, the jurisdiction of each state is established not only on the basis of territorial factor, but also of other factors that represent certain relationship with the state, such as the nationality, the effect of the act on the nation and national sovereignty. These jurisdictions are extraterritorials. However, the grounds for establishing this extraterritorial jurisdiction arouse a lot of debate. The paper analyzes the relationships that make up extraterritorial jurisdiction in accordance with international law and relates to the practice of Vietnam law to clarify the changes of the legal system of Vietnam at present in establishing its jurisdiction over persons and things.
域外管辖权是一个在一些国家的法律实践中研究和应用了很长时间的概念。随着国际法的发展,每个国家的管辖权不仅建立在领土因素的基础上,还建立在代表与国家某种关系的其他因素的基础之上,如国籍、行为对国家的影响和国家主权。这些管辖权属于治外法权。然而,建立这种治外法权的理由引起了很多争论。本文分析了根据国际法构成域外管辖权的关系,并结合越南法律实践,阐明了当前越南法律体系在确立对人和物的管辖权方面的变化。
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引用次数: 0
Bipolar Strategic Stability in a Multipolar World 多极世界中的双极战略稳定
Pub Date : 2020-02-29 DOI: 10.5539/jpl.v13n1p82
C. Kuklinski, Jeni Mitchell, Tim Sands
In recent times, threats to participatory democracy can arguably stem from a lack of strategic stability overshadowed by nuclear weapon-derived deterrence effects of a rising China and especially a relatively more belligerent resurgent Russia opposed to a Western alliance of democracies. This manuscript provides a scholarly analysis of strategic atability and illustrates some written truths that often seem incongruent with comments spoken by the same authors resulting from a hyper-politicized state of dialogue. The analysis is grounded in foundational concepts of deterrence and well-articulated in relevant policies and treaties.
近年来,对参与式民主的威胁可以说源于缺乏战略稳定,而崛起的中国,尤其是相对更好战的复兴俄罗斯,反对西方民主联盟,核武器引发的威慑效应掩盖了这种稳定。这份手稿提供了对战略可移植性的学术分析,并说明了一些书面真理,这些真理往往与同一作者在超政治化对话状态下发表的评论不一致。该分析以威慑的基本概念为基础,并在相关政策和条约中得到了很好的阐述。
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引用次数: 5
Reviewer Acknowledgements for Journal of Politics and Law, Vol. 13, No. 1 《政治与法律杂志》第13卷第1期书评人致谢
Pub Date : 2020-02-29 DOI: 10.5539/jpl.v13n1p176
William Tai
Reviewer acknowledgements for Journal of Politics and Law, Vol. 13, No. 1, 2020.
《政治与法律杂志》,第13卷,2020年第1期,书评人致谢。
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引用次数: 0
The Fiscal Situation of Palestine: Can the Grip of Chronic Distress Be Loosened? 巴勒斯坦的财政状况:能否摆脱长期的困境?
Pub Date : 2020-01-02 DOI: 10.5539/jpl.v13n1p19
N. Medvedev, D. E. Slizovskiy, M. Iwaina, O. Nesterchuk
The study based on the available materials, facts and events shows chronic diseases of the Palestine’s fiscal situation. The authors see the main reasons for this in the fact that Israel managed to impose on the state of Palestine not only economic, organizational and managerial, but also political mechanisms and tools for managing and regulating the financial and budgetary sector. But this is not the only reason. The analysis focuses on the international controversy between two points of view: the first shows and defends the idea of the crisis of the Palestine’s fiscal situation. Its apologists attribute the reasons for this to the occupation of the Palestinian territory and to the occupation regime, undermining the possibility of creating normal living conditions for the Palestinians. The opposite view either denies the state of deep crisis in the financial and budgetary sector of Palestine or attributes it to the shortcomings and failures of the Administration unable to cope with the existing problems. The article analyzes in detail the influence of international actors, organizations and structures on the Palestine’s budgetary and financial situation. The results of the study do not give a clear answer as to how the existing problems will be resolved. Theoretically, they can be positively resolved only in case of creation of a full-fledged state of Palestine. In practice, Palestine and Israel are not able to resolve the problems of the inherent antagonistic conflict by themselves. But Israel today uses the capacity and skills of its administrators, managers and financiers and with the support, first of all, of the United States maintains its leadership and receives preferences in the financial and economic sphere of the Palestinian Autonomy. In the medium term, the fiscal situation of Palestine will retain its chronic problems and contradictions. Their aggravation will be associated with the outbreaks of radicalism and armed clashes in the structure of relations between the two countries and with the rise of radicalism within them.
这项基于现有材料、事实和事件的研究显示了巴勒斯坦财政状况的慢性病。作者认为,造成这种情况的主要原因是,以色列不仅在经济、组织和管理方面,而且在管理和规范财政和预算部门方面,设法将政治机制和工具强加给巴勒斯坦国。但这并不是唯一的原因。分析的重点是国际上争论的两个观点:第一,展示和捍卫巴勒斯坦财政危机的理念。其辩护者将其原因归咎于对巴勒斯坦领土的占领和占领政权,破坏了为巴勒斯坦人创造正常生活条件的可能性。相反的观点要么否认巴勒斯坦财政和预算部门处于严重危机状态,要么将其归咎于行政当局无法解决现有问题的缺点和失败。文章详细分析了国际行为体、组织和结构对巴勒斯坦预算和财政状况的影响。关于如何解决现有问题,研究结果并没有给出明确的答案。从理论上讲,只有在建立一个全面的巴勒斯坦国的情况下,这些问题才能得到积极解决。在实践中,巴勒斯坦和以色列无法单独解决固有的敌对冲突问题。但今天的以色列利用其行政人员、管理人员和金融家的能力和技能,首先在美国的支持下,保持其领导地位,并在巴勒斯坦自治区的金融和经济领域获得优惠。从中期来看,巴勒斯坦的财政状况将继续存在其长期存在的问题和矛盾。他们的恶化将与两国关系结构中激进主义和武装冲突的爆发以及两国内部激进主义的抬头有关。
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引用次数: 0
Reviewer Acknowledgements for Journal of Politics and Law, Vol. 12, No. 4 《政治与法律杂志》第12卷第4期书评人致谢
Pub Date : 2019-11-28 DOI: 10.5539/jpl.v12n4p154
William Tai
Reviewer acknowledgements for Journal of Politics and Law, Vol. 12, No. 4, 2019.
《政法学刊》2019年第12卷第4期。
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引用次数: 0
Can Non-Muslim Courts Bring Legal Change in Sharia Laws? 非穆斯林法庭能给伊斯兰教法带来法律变革吗?
Pub Date : 2019-10-30 DOI: 10.5539/jpl.v12n4p1
Hajed A. Alotaibi
The transformative and regulatory accommodation model addresses practical challenges to accommodate religious laws and courts in the secular and democratic regimes. There is a strong evidence against the jurisdictional competition between secular and religious courts under defined conditions. There is no concern regarding the Shariah courts in the non-Muslim democracies, as majority of the country’s ethno-religious groups control the civil and rabbinical courts. In this regard, there is a need to mitigate the negative impact of Muslim Family Laws (MFLs) by the civil courts in non-Muslim majority countries because MFLs imply certain disabilities and limitations upon the displayed rights of women and children. To address these issues, the present study aims to discuss the possibilities and challenges faced by the multicultural and pluri-legal accommodations by focusing on the Islamic law and institutions within the non-Muslim democracies. The results have shown that the reformation of rules and procedures internalize certain principles and discourses due to increased compliance of religious courts with the high court rulings. Increase in the number of Muslim judges on civil courts would help to overcome lack of legitimacy in the perspectives of the Muslim minority that is the main reason of shortcomings of both ex post and ex ante oversight mechanisms.
变革和监管适应模式解决了在世俗和民主政权中适应宗教法律和法院的实际挑战。有强有力的证据反对世俗法院和宗教法院在特定条件下的管辖权竞争。对于非穆斯林民主国家的伊斯兰教法法庭,人们并不担心,因为该国大多数民族-宗教团体控制着民事法庭和拉比法庭。在这方面,有必要减轻非穆斯林占多数国家的民事法院对穆斯林家庭法的消极影响,因为穆斯林家庭法对妇女和儿童所显示的权利意味着某些残疾和限制。为了解决这些问题,本研究旨在通过关注非穆斯林民主国家的伊斯兰法律和制度,讨论多元文化和多元法律适应所面临的可能性和挑战。结果表明,由于宗教法院越来越多地遵守高等法院的裁决,规则和程序的改革内化了某些原则和话语。增加民事法庭的穆斯林法官人数将有助于克服在穆斯林少数群体看来缺乏合法性的问题,这是事后和事前监督机制缺点的主要原因。
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引用次数: 0
Legal Nature of the Contract of Succession as a Special Institute of Civil Law of the Russian Federation 继承合同作为俄罗斯联邦民法专门机构的法律性质
Pub Date : 2019-09-03 DOI: 10.5539/jpl.v12n5p151
L. Gazizullina, I. Sboeva
In this paper, the authors analyse a new institution for the Russian legal system, namely, the contract of succession institution. It is a qualitatively new way to transfer property, which was legislated as a supplement to the existing grounds of succession. It is noted that one of the advantages of this type of succession is that this type of agreement enables a property owner not only to outline the circle of successors during his/her lifetime but also to stipulate clear conditions for their entry into rights of succession. That is, thanks to this agreement, it becomes possible to determine to whom and what kind of property will be transferred after the death of the owner, and what conditions must be met for this. In this paper, the authors correlate a contract of succession with mixed categories: they compare (only by some criteria) a contract of succession with a unilateral transaction - a last will and testament. The authors conclude that the institution of the contract of succession is a symbiosis of succession and contractual legal relations (mixed nature), which may lead to certain problems in the future during the enforcement of the current legislation.
本文分析了俄罗斯法律制度中的一种新制度,即继承合同制度。这是一种性质上新的财产转让方式,立法是对现有继承理由的补充。值得注意的是,这种类型的继承的优点之一是,这种协议不仅使财产所有人能够概述他/她一生中的继承人圈子,而且还能够为他们享有继承权规定明确的条件。也就是说,有了这项协议,就有可能确定业主去世后将向谁和什么样的财产转让,以及必须满足什么条件。在本文中,作者将继承合同与混合类别联系起来:他们将继承合同(仅根据某些标准)与单方面交易——最后遗嘱和遗嘱——进行了比较。作者认为,继承合同制度是继承与合同法律关系的共生关系(混合性质),这可能导致未来在现行立法实施过程中出现某些问题。
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引用次数: 0
Distribution of Deputy Mandates: Analysis of Proportional Representation in the Context of a Mixed Electoral System 副手授权的分配:混合选举制度下的比例代表制分析
Pub Date : 2019-09-03 DOI: 10.5539/jpl.v12n5p140
N. Volkova, A. I. Dudochnikov, A. Kamalova, A. Naurskov, Sima Feruzovna Gaffarova
Elections are a socio-political institution, during which holding it is determined what the nature of the reforms will be in the next few years. It is important that the legitimacy of the electoral process is high and that key reforms are determined by competent government officials. The basic element of elections is a high level of competition, which should exist not only between various political entities that exercise eligibility to vote and right to be elected but also within such structures fighting for power. The paper contains an analysis concerning the issue on the functioning of the proportional vote distribution institute. According to the election results, it is necessary to determine how many seats will go to a certain party, which, according to the proportional system, has overcome the percentage barrier. In world practice, there is a whole range of proportional distribution methods that form two large groups: the largest remainder methods and the dividers methods. There are discussions on this parameter, and each country has adopted its own methodology. In Russia, with a proportional distribution of seats, one of the largest remainder methods is used, namely, the Hare method. The study will reflect the analysis of the functioning of proportional distribution systems in Russia and in the world.
选举是一种社会政治制度,在选举期间,将决定未来几年改革的性质。重要的是,选举进程的合法性很高,关键改革由主管政府官员决定。选举的基本要素是高度竞争,这种竞争不仅应存在于行使选举资格和被选举权的各种政治实体之间,而且应存在于这些争取权力的结构内部。该文件对比例选票分配机构的运作问题进行了分析。根据选举结果,有必要确定某个政党将获得多少席位,根据比例制度,该政党已经克服了百分比障碍。在世界实践中,有一系列的比例分配方法,它们形成了两大类:最大余数法和除法器法。关于这一参数进行了讨论,每个国家都采用了自己的方法。在俄罗斯,席位按比例分配,使用了最大的余数法之一,即黑尔法。这项研究将反映对俄罗斯和世界比例分配制度运作的分析。
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引用次数: 0
Constitutional and Legal Aspects of State Control and Supervision Activities (Legal Positions of the Constitutional Court of the Russian Federation) 国家控制和监督活动的宪法和法律方面(俄罗斯联邦宪法法院的法律立场)
Pub Date : 2019-09-03 DOI: 10.5539/jpl.v12n5p161
A. F. Samigullina, Almas A. Imamov, K. V. Kostina, A. Goncharova
The presented article is devoted to the analysis of the legal positions of the Russian Federation Constitutional Court regarding the constitutionality of Russian legislation norms in the field of control and supervision activities. The generalization of the Constitutional Court practice of the Russian Federation allows you to group the decisions of the highest constitutional control body on several key issues: the limits of discretion by the legislator and law enforcer, the legal nature of state control and supervision measures, the balance of public and private interests in the sphere of relations under consideration and the guarantees of this balance. The team of authors concludes that the resolution of these problems is impossible without the Constitutional Court determining the content of a number of key concepts, developing the methodology for various constitutional principles and value balancing and, in general, focused efforts to constitutionalize Russian legislation.
本文专门分析俄罗斯联邦宪法法院关于俄罗斯在控制和监督活动领域的立法规范合宪性的法律立场。俄罗斯联邦宪法法院惯例的概括使您能够将最高宪法控制机构关于几个关键问题的决定分组:立法者和执法者的自由裁量权限制、国家控制和监督措施的法律性质、,所审议的关系领域中公共和私人利益的平衡以及这种平衡的保障。作者小组得出结论认为,如果宪法法院不确定一些关键概念的内容,不制定各种宪法原则和价值平衡的方法,不集中努力使俄罗斯立法宪法化,就不可能解决这些问题。
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引用次数: 0
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Journal of politics and law
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