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On the Problems of Just Sentencing in China 论中国的公正量刑问题
Acta Juridica Hungarica Pub Date : 2015-10-16 DOI: 10.1556/026.2015.56.2-3.7
Gui Huang
{"title":"On the Problems of Just Sentencing in China","authors":"Gui Huang","doi":"10.1556/026.2015.56.2-3.7","DOIUrl":"https://doi.org/10.1556/026.2015.56.2-3.7","url":null,"abstract":"According to the legal norms in China, judges are not allowed to deviate from the sentencing model of deductive legal reasoning and syllogism, and thus, they cannot make law. The inherent limitations of this model figure in the reasoning of judges, such as the poor interpretation of the abstract terms of laws and regulations, the difficulties of identifying legally relevant facts and the simplicity of the reasoning process, which lacks legal rationality. While they are subject to the conditions of the legal system, some external and internal factors influence the judges’ reasoning behind their decisions concerning the determination of sentences. The internal factors include the knowledge, judicial experience, special experiences, and attitude of the judge; the external factors refer to the circumstances of the victim, the personality of the offender, the intervention of external power, and the opinion of the public. All of these factors are parts of the dilemma of sentencing justly. Only if the formal and...","PeriodicalId":284706,"journal":{"name":"Acta Juridica Hungarica","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132517935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Judicial negligence at the ICTY and the liability of the aider and abettor 前南问题国际法庭的司法过失以及帮凶和教唆者的责任
Acta Juridica Hungarica Pub Date : 2015-10-16 DOI: 10.1556/026.2015.56.2-3.4
Eszter Kirs
{"title":"Judicial negligence at the ICTY and the liability of the aider and abettor","authors":"Eszter Kirs","doi":"10.1556/026.2015.56.2-3.4","DOIUrl":"https://doi.org/10.1556/026.2015.56.2-3.4","url":null,"abstract":"The acquittal of Momcilo Perisic (former Chief of the Yugoslav Army General Staff, right hand of Slobodan Milosevic during the Balkan wars) received a loud echo both in the affected countries and in the international media in 2013. His acquittal was based on an Appeal Judgement including an unconvincing interpretation of aiding and abetting liability. The author of the present paper discusses the judicial reasoning provided by the Appeals Chambers of the ICTY before the Perisic Appeal Judgement was delivered and demonstrates how negligence of judicial chambers can build case law which leaves the door wide open to highly debatable judicial conclusions. The paper briefly presents the 14-year story of the application of the concept of aiding and abetting liability by the ICTY Appeals Chambers, from the 2000 Aleksovski Appeal Judgement to the 2014 Sainovic Judgement.","PeriodicalId":284706,"journal":{"name":"Acta Juridica Hungarica","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127458153","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Strengthening Indonesian judges’ understanding of the refusal and annulment grounds of foreign arbitral awards 加强印尼法官对外国仲裁裁决的驳回和撤销理由的了解
Acta Juridica Hungarica Pub Date : 2015-10-16 DOI: 10.1556/026.2015.56.2-3.6
D. Heriyanto
{"title":"Strengthening Indonesian judges’ understanding of the refusal and annulment grounds of foreign arbitral awards","authors":"D. Heriyanto","doi":"10.1556/026.2015.56.2-3.6","DOIUrl":"https://doi.org/10.1556/026.2015.56.2-3.6","url":null,"abstract":"Business entities see arbitration as a forum where they can settle their disputes. This form of alternative dispute resolution provides a win-win situation for both parties involved in the debate. Arbitration is the only institution that has full authority to settle their disputes once parties entered into a consent to choose an arbitration committee over a classic judicial forum. Even though arbitral awards have a final and binding character, they may be challenged using two legal methods: refusal or annulment. Besides providing specific grounds of refusal, the New York Convention 1958 ruled that the annulment of a foreign arbitral award could be done by a “competent authority of the country in which, or under the law of which, the award was made”. Although Indonesia has ratified the Convention and has specific national regulations on arbitration, judges of the courts of the first and second instance in fact do not have sufficient understanding of the refusal and annulment grounds of foreign arbitral awa...","PeriodicalId":284706,"journal":{"name":"Acta Juridica Hungarica","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126396269","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 4
Dogmatic and social scientific activism in the Lochner era 洛克纳时代的教条主义和社会科学激进主义
Acta Juridica Hungarica Pub Date : 2015-10-16 DOI: 10.1556/026.2015.56.2-3.10
A. Molnár
{"title":"Dogmatic and social scientific activism in the Lochner era","authors":"A. Molnár","doi":"10.1556/026.2015.56.2-3.10","DOIUrl":"https://doi.org/10.1556/026.2015.56.2-3.10","url":null,"abstract":"The Lochner era has much to say about conceptions of judicial role and judicial activism, and can be used as an analytical example. I examine the era from the aspect of judicial reasoning. The analysis is composed of three main units. First, I point out a distinction between judicial and constitutional, as well as between single activist decisions and tendencies. Second, I sketch a theoretical framework that concerns the inclusion of social sciences into judicial reasoning. “Social scientific passivistic” reasoning features references to exact data from social sciences, and tends to uphold the legislative action in question. On the other hand, “social scientific activistic” reasoning refers to social scientific data and aims to strike down the legislative action in question. In a similar vein, “dogmatic activistic” reasoning is grounded on precedents and methods of legal interpretation, tending to strike down a legislative act, while “dogmatic passivistic” reasoning aims at upholding such an act. These categories are not mutually exclusive; however, they help to analyze constitutional decisions with directing attention to their nature behind their prima facie content. Finally, I apply the scheme to the Supreme Court’s Lochner era constitutional adjudication.","PeriodicalId":284706,"journal":{"name":"Acta Juridica Hungarica","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125909060","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Interpretation theories in Ukrainian courts — Past and present 乌克兰法院的解释理论-过去和现在
Acta Juridica Hungarica Pub Date : 2015-10-16 DOI: 10.1556/026.2015.56.2-3.5
Ievgen Zvieriev
{"title":"Interpretation theories in Ukrainian courts — Past and present","authors":"Ievgen Zvieriev","doi":"10.1556/026.2015.56.2-3.5","DOIUrl":"https://doi.org/10.1556/026.2015.56.2-3.5","url":null,"abstract":"The article is devoted to the analysis of the issue of legal interpretation, and in particular to its aspect of being an art, and the way the three main interpretation theories fit into the artistic concept of interpretation. This concept is also used to analyze the state of legal interpretation conducted by Ukrainian courts, as well as tendencies of its development. The author first provides a brief overview of the concept of interpretation generally, and legal interpretation particularly. Then he elaborates briefly on the issue of the artistic nature of interpretation as a skill of a human being. This is followed by an analysis of the Ukrainian legal system supported by the example of a recent case, and the author concludes with his ideas on the working practical combination of the theories of interpretation to be beneficial for both the Ukrainian and other legal systems.","PeriodicalId":284706,"journal":{"name":"Acta Juridica Hungarica","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125961039","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Legal argumentation — Is it a science or art? 法律论证——是科学还是艺术?
Acta Juridica Hungarica Pub Date : 2015-10-16 DOI: 10.1556/026.2015.56.2-3.2
Mihály Maczonkai
{"title":"Legal argumentation — Is it a science or art?","authors":"Mihály Maczonkai","doi":"10.1556/026.2015.56.2-3.2","DOIUrl":"https://doi.org/10.1556/026.2015.56.2-3.2","url":null,"abstract":"The uncertainties in methodology of interpretation and argumentation and the lack of specific methods to be followed bring the interpreter into a particular situation in law. However, it cannot be ruled out that the art of legal reasoning may possibly exist. Accordingly, in the interpretation of the law and in legal hermeneutics the main issue is the judicial conduct. The sociological situation of the judge does not allow her to follow the criteria prevailing in science. This does not mean the disparagement of judicial activity, because the justification of the verdict may have a strong intellectual force, even if it does not meet the academic requirements. An approach that holds that the proper interpretation and argumentation should be a scientific one is too narrow, as there is another rationality, that is, the adjudicating intellect. This by its very nature not only deals with the exploration of general principles and rules, although these also play a role in this form of reasoning, but also attempts ...","PeriodicalId":284706,"journal":{"name":"Acta Juridica Hungarica","volume":"5 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134334152","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Citations of previous decisions and the quality of judicial reasoning 引用以前的判决和司法推理的质量
Acta Juridica Hungarica Pub Date : 2015-10-16 DOI: 10.1556/026.2015.56.2-3.3
Zsolt Ződi
{"title":"Citations of previous decisions and the quality of judicial reasoning","authors":"Zsolt Ződi","doi":"10.1556/026.2015.56.2-3.3","DOIUrl":"https://doi.org/10.1556/026.2015.56.2-3.3","url":null,"abstract":"Inserting citations to authorities into a text, in order to increase the persuasive power of it, and prove the competence of the author, has a long tradition in science and in law. The question is whether this also applies to judicial decisions. This question is especially interesting in a continental legal culture, where following previous cases is not obligatory, there is no stare decisis, and therefore, inserting a reference to a previous case may have a different function. In 2012 we performed a computer-based citation analysis of the court decisions published under FOI act on the official website of the National Office for the Judiciary (Orszagos Birosagi Hivatal). The article contains four sections. The first and the second sections are dealing with citations within judicial decisions in general, and their significance in different legal cultures. The third section is about the quantitative, while the fourth is about the qualitative part of the research, and tackle the issue whether citations increa...","PeriodicalId":284706,"journal":{"name":"Acta Juridica Hungarica","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130507594","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
The Concept of “Authority” and Procedural Principles in the Administrative Procedural Law of the European Union 欧盟行政诉讼法中的“权限”概念与程序原则
Acta Juridica Hungarica Pub Date : 2015-06-27 DOI: 10.1556/026.2015.56.1.7
Á. Váradi
{"title":"The Concept of “Authority” and Procedural Principles in the Administrative Procedural Law of the European Union","authors":"Á. Váradi","doi":"10.1556/026.2015.56.1.7","DOIUrl":"https://doi.org/10.1556/026.2015.56.1.7","url":null,"abstract":"The question of a uniform European administrative (procedural) law has recently entered centre stage in the legal scholarship and gradually in the EU policy-making. As an element of this discourse, the paper analyses the concept of ‘authority’ (a basic concept of the European administrative law) from three aspects: The fi rst question is whether ‘administrative authority’ has a sui generis definition in EU law and what its characteristic features are. Second, the exercise of ‘public authority’ will be described, especially the forms of cooperation between authorities. Third, the concept of ‘authority’ will be examined as a set of principles governing the exercise of public powers in the administrative procedures, with the help of primary and secondary sources of EU law and some non-binding documents. The interpretation of the principles is possible on the basis of the case-law of ECJ. In the fi nal part of the paper, the practical appearance of the principles will be outlined with the help of the recently...","PeriodicalId":284706,"journal":{"name":"Acta Juridica Hungarica","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121034522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Legal Consequences of Supporting Candidates on Recommendation Sheets in an Illegal Way 非法在推荐信上支持候选人的法律后果
Acta Juridica Hungarica Pub Date : 2015-06-27 DOI: 10.1556/026.2015.56.1.4
K. Nagy
{"title":"The Legal Consequences of Supporting Candidates on Recommendation Sheets in an Illegal Way","authors":"K. Nagy","doi":"10.1556/026.2015.56.1.4","DOIUrl":"https://doi.org/10.1556/026.2015.56.1.4","url":null,"abstract":"In 2014 there were three elections in Hungary: the election of Members of Parliaments, the election of members of the European Parliament, furthermore, the elections of representatives and mayors of municipalities and of representatives of national minority local self-governments. The Hungarian Parliament passed a new act on electoral procedure in 2013 and we have had a new Criminal Code since 2012. This study examines a new legal institution, the recommendation sheets, which raise many questions, including criminal liability. The main theme of the study is the misuses related to recommendation sheets.","PeriodicalId":284706,"journal":{"name":"Acta Juridica Hungarica","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131796732","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Effects of the European Convention on Human Rights and the Strasbourg Case Law on the Development of Hungarian Law 《欧洲人权公约》和《斯特拉斯堡判例法》对匈牙利法律发展的影响
Acta Juridica Hungarica Pub Date : 2015-06-27 DOI: 10.1556/026.2015.56.1.6
Marcel Szabó
{"title":"The Effects of the European Convention on Human Rights and the Strasbourg Case Law on the Development of Hungarian Law","authors":"Marcel Szabó","doi":"10.1556/026.2015.56.1.6","DOIUrl":"https://doi.org/10.1556/026.2015.56.1.6","url":null,"abstract":"The European Convention on Human Rights is a milestone in the development of international law, aimed at guarding fundamental freedoms and human rights in Europe. As a consequence of the unique path of Central and Eastern European legal development, the provisions of the Convention and the case law of the European Court of Human Rights were not necessarily implemented into Hungarian law through the jurisprudence of Hungarian courts, but it was much rather the Constitutional Court who facilitated such implementation. Although the human rights protection system shaped by the European Court of Human Rights has now become an integral part of Hungarian law, the effect of the Convention and the Strasbourg case law on the Hungarian legal development is still rather meagre. The present article seeks to explore the possible reasons for this development.","PeriodicalId":284706,"journal":{"name":"Acta Juridica Hungarica","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127538147","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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