The national law of Finland identify criteria of belonging to the Indigenous Sámi in order to protect their cultural heritage and identity. In Finland, the electoral committee of the representative ...organ of Sámi Indigenous Peoples, the Sámi Parliament, decides who fulfills the criteria for being Sámi and thus is included in the electoral roll. Since its establishment, the Sámi Parliament has rejected hundreds of applications by persons not recognized as Sámi. Unsuccessful applicants can appeal to the Supreme Administrative Court of Finland (SAC). In 2015, the SAC overturned 93 rejections. This led to an internal crisis of the Sámi Parliament and to the question, who actually has the cultural expertise to decide who is indigenous in Finland. Sámi activists filed two complaints with the United Nations Human Rights Committee regarding the violation of Sámi rights to self-determination. In 2019, the Human Rights Committee concluded that Finland had violated the rights of the Sámi. This paper analyzes what is the cultural expertise for ascertaining Sámi identity and who exercises it. The focus is on the evidence required by the SAC and the question of whether identity can be decided by legal experts, independent judges of a Finnish judiciary without any involvement of cultural experts. It is argued that the legal instruments adopted to protect Indigenous Peoples lack cultural expertise on the diversity and heterogeneity of the real-life contexts where rights are negotiated, leading applicants to repeat essentialist arguments of how Indigenous Peoples stereotypically would be.
The aim of this paper is to look at the principle of the constitutiveness of entry into the real estate register from the aspect of legal theory and current court practice. Recognizing the existence ...of certain tendencies to deviate, to a lesser or greater extent, from the provisions of the laws regulating this field, the author draws attention to the possible consequences of such application of the law. The purpose of the entry into public books is in fact to be able to confront registered rights to all third parties in order to ensure their effect erga omnes, contra omnes. This principle is also important when the already existing rights are only published by entry, and especially if the change in the rights is only created by entry. In this respect, the declarative and constitutive character of the registration in the real estate register is discussed. The paper emphasizes that the principle of the constitutiveness of entry should be consistently applied, as the law requires, in the context of other principles of the real estate cadastre and the principles of civil law in general. Only such a court procedure can ensure that the law is the same for everyone, as well as the rule of law and the necessary legal certainty.
In the wake of a recent decision by the High Court of Australia, currently a deaf person, who relies on sign language, is not able to serve as a juror because Australian law does not permit the ...swearing in of an interpreter as the '13th person' in the jury room. In 2016, the United Nations Committee on the Rights of Persons with Disabilities found that Australia is in breach of its obligations under the Convention on the Rights of Persons with Disabilities, and indicated that legislative and policy change is both mandated and feasible. Four pieces of research conducted over the last decade in Australia have proved that deaf people have the ability to understand complex legal discourse in a courtroom setting using sign language interpretation and, therefore, are able to discharge the functions of juror. The latest research, funded by the Australian Research Council, has highlighted some residual procedural and logistical issues, alongside reservations from some legal stakeholders involved in the project. However, this article argues that these can be addressed, and what is now required is the motivation to address this breach of human rights that treats deaf people differently to hearing people.
In this paper author have studied out and analyzed family law relations between parents and children in Vojvodina in the period between two world wars according to acts, court precedent, private law ...rules and legal doctrine. The author have studied family law relations between parents and children in contemporary Serbia and in European law. In historical perspective in Vojvodina (including Medjumurje and Prekomurje) the Hungarian law (acts) was in use, except in Srem and Vojna granica where the Austrian law was in use. The issues of family status of children, in other words, the rules of establishing and contesting paternity, parental rights and duties, exercise of parental rights were analyzed. The father had paternal authority and priority role if the child was born in wedlock. If the child was born out of wedlock, mother had priority role in exercising rights and duties. If parents were divorced or separated the priority role had the parent who had custody of the child, the other parent had visitation rights. In the second part of this paper the court cases in parent-child relation in twentieth and thirtieth years of XX century kept in Archive of Vojvodina, were analyzed. In particular, the author has studied cases in which the court made a decision according to court precedent, private law rules and legal doctrine.
U radu se, nakon uvodnog dijela u kojem se u najkraćim crtama prikazuje institut zastare u pravnoj teoriji i pojedinim pravnim granama, nastoji ukazati na posebnosti uređenja instituta zastare u ...upravnom pravu. Pri tome se posebno naglašava činjenica da su javnopravna tijela u upravnom odnosu u nadređenom položaju u odnosu na ostale sudionike tog odnosa. Također, navode se i pojedina načela upravnog prava kao naročito važna za shvaćanje posebnosti instituta zastare u upravnom pravu. Središnji i opsegom najveći dio rada posvećen je analizi instituta zastare u poreznom pravu, kroz odabrane primjere iz sudske prakse, pri čemu je najveća pozornost usmjerena na normativne izmjene instituta zastare učinjene odredbama najnovijeg Općeg poreznog zakona. U zaključku rada ukratko se iznose osnovne teze rada te nada da će primjena novog zakona dovesti do ostvarenja poreznopravne izvjesnosti i sigurnosti.
After the introduction in which the institute of statute of limitations is analysed briefly in legal theory and certain legal branches, an attempt is made to point out the specifics of regulating the institute of statute of limitations in administrative law. Thereto, the fact that the public legal bodies in administrative relations are in a superior position to other participants in that relation is particularly emphasised. Also, certain principles of administrative law are mentioned as being particularly important to understanding the peculiarities of the institute of statute of limitations in administrative law. The middle and main part of this paper is dedicated to analysis of the institute of statute of limitations in taxation law through chosen examples from court practice wherein the main attention is given to normative amendments of the institute of statute of limitations made by provisions of the latest general taxation law. In conclusion, basic theses of this paper are briefly mentioned with the hope that application of this new law will lead to achieving taxation predictability and certainty.
In recent years, literature has pointed to the problem of exit restrictions that may be imposed upon defaulting debtors in China. The Civil Procedure Law allows courts to impose exit restriction as a ...measure to enforce judicial decisions, but the Exit-Entry Administration Law extends this regulation to pending civil cases. The practice of courts to apply exit restriction as a form of injunction exhibits a number of problems: the legal basis is vague, the scope of application to legal persons is unclear and courts often conduct only a formal examination of applications. As their aim is not to directly safeguard assets in dispute, it is debatable whether exit restrictions should be classified as preservative measures as applied by courts. When a legal entity is a defendant in a civil case, exit restriction can be applied to almost any of its managerial staff. Finally, exit restrictions are a considerable impingement on personal freedom, and yet, in practice, they are imposed in a quick and severe manner and legal remedies are opaque. As a result, a high degree of legal uncertainty evolves, which may well deter foreign individuals and enterprises from investing in China.
LEGAL PRACTICE AS A SOURCE OF CIVIL LAW Didenko A. A; Kobylinsky N. D
Naucnyj zurnal Kubanskogo gosudarstvennogo agrarnogo universiteta,
10/2015
Journal Article
Recenzirano
The article deals with the analysis of the role and place of court practice in the system of civil-law sources. The author introduces a debatable matter of the possibility to acknowledge the Russian ...law as case law; analyses significance of the judicial practice in the system of sources of the Russian law; outlines positions of experts on this matter and draws her own conclusions. The article provides a review of opinions of Russian law academics' and practitioners' on the topic of acknowledgement of judicial practice as a source of Russian law. The author debates and further concludes that assigning courts with the law-making function would benefit the efficiency of current legislation refinement. The author draws a conclusion that in the continental legal family court practice, which earlier wasn't considered a civil-law source, started gradually to turn into a secondary after civil legislation law source. The reason for it is because of more complicated social relations civil legislation failed to cope efficiently with the detailed legal regulation which is needed in property relations reglamentation. The author reveals the difference between the notions of "court practice" and "judicial precedent" and concludes that vesting courts with law making power can facilitate the improvement of the legislation in force, as well as the development of the civil law regulation. The final conclusion is that the litigation irrespective of the form of expression cannot be the independent source of law
In this paper we mostly deals with authority of the courts from two points of view. Firstly, we deals with authority which courts have in itself, because in their decisions principaly decides about ...rights and duties of people in dispute (we don’t go in the quality of their decisions). Secondly, we deals with the quality of their decisions, primarly through their use of argument of authority. It is difficult to talk about argument of authority without saying what is the role of judgements in two great legal systems – European-continental system (civil law) /traditionally authority is court practice/ and Anglo-American system (common law) /traditionally authority is precedent/. In European-continental system, lower courts invokes to the decisions of higher courts because of their quality. In Anglo-American system, precedents bind lower courts and they are are formal sources of law. Can we define argument of authority uniqualy for both systems? We are pleading for definition of argument of authority in which argument of authority means invoking to court practice and invoking to precedents, but it doesn’t mean invoking to laws. We think that invoking to law means realisation of the principle of legality. There is difference between invoking to law and invoking to precedents, although this last has the effect of legality. We are showing that some solutions of Croatian lawmaker means exception from the principle of European-continental law in which decisions of higher courts binds lower courts because of their quality, so there are some types of binding decisions of higher courts which have “de facto” effect of precedents.
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