Eingeräumte Überziehungsmöglichkeit und geduldete Überziehung

2019 ◽  
Author(s):  
Sabrina Amarell
Keyword(s):  
Financial Services ◽  
Credit Card ◽  
Basic Element ◽  
Consumer Loans ◽  
Starting Point ◽  
The Law ◽  
Practical Experiences ◽  
Consumer Credit Directive ◽  
Mortgage Credit Directive ◽  
The Right

Together with a current account and a debit or credit card, having an overdraft granted and tolerated is a basic element of financial services for consumers. The far-reaching and profound changes to the law on consumer loans connected to the implementation of the Consumer Credit Directive (2008/48/EC) resulted especially in the redefinition of the right to have an overdraft both granted and tolerated according to §§ 504 and 505 respectively of Germany’s civil code (Bürgerliches Gesetzbuch). In 2016, these reforms were supplemented by further changes to the law, which significantly altered the right to be given an overdraft and which resulted from the implementation of both the Mortgage Credit Directive (2014/17/EU) and the Payment Account Directive (2014/92/EU). Using these changes as a starting point, this study examines the legal dogmatic foundations of having an overdraft granted and tolerated in both a European and a national context. Subsequently, it conducts an empirical investigation into practical experiences with overdrafts, which is based on interviews with experts from both credit institutes from the three banking sectors and consumer advice agencies. As a result of this investigation, the author deals with the points at which the legal dogmatic foundations and the practical experiences overlap and differ by bringing together the diverging results of the study’s initial two main parts in both an academically interesting and innovative way. This book will not only appeal to those in academia, but also to those working in the fields of banking and consumer rights.

The Death Penalty, the “Marriage Penalty” and Some Remarks on the Utility of Senecan Research in the Study of Roman Law

2019 ◽  
Vol 80 ◽  
pp. 197-214
Author(s):  
Joanna Kulawiak-Cyrankowska
Keyword(s):  
Death Penalty ◽  
Legal Reasoning ◽  
Roman Law ◽  
Strong Argument ◽  
Starting Point ◽  
The Law ◽  
Seneca The Elder ◽  
Lucius Annaeus Seneca ◽  
The Right ◽  
Intellectual Challenge

The problem in the 5th controversia from the work of Lucius Annaeus Seneca the Elder, entitled Oratorum et rhetorum sententiae divisiones colores, is presented as follows: one man seduced two women during the same night. According to the law, which in the literature is referred to as lex raptarum, a woman who was kidnapped may choose between the death penalty for the ravisher or marrying him, but without giving him a dowry. Here, two women were granted the right of option and one of them demanded the death of the man, but the other wanted to marry him. The declaimers were trying to find an answer to the question: which solution is worthier to prevail? Since, in fact, the main problem raised in the controversia is the interpretation of law, it constituted quite a significant intellectual challenge. The declaimers employed very impressive legal reasoning techniques. This controversia constitutes then not only an interesting starting point to conduct the research on the borderline of law and declamation, but also might be a strong argument that the law and rhetoric, at least in some aspects, could have been complementary to each other.

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

CIVIL AND LEGAL LIABILITY OF JUDGES

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Human Rights ◽  
Pension System ◽  
Legal Liability ◽  
Judicial System ◽  
Constitutional Court ◽  
Model Code ◽  
European Court ◽  
The Status ◽  
The Law ◽  
The Right

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».

Preclusion of the Right to Submit New Facts and Evidence According to the Law on Contested Procedure in Kosovo

2017 ◽  
Vol 10 (1) ◽  
pp. 84
Author(s):  
ARTAN QERKINI
Keyword(s):  
Market Economy ◽  
Legal System ◽  
Practical Implementation ◽  
Relevant Evidence ◽  
Legal Provisions ◽  
The Law ◽  
Legislative Amendments ◽  
The Right

The market economy and changes within Republic of Kosovo’s legal system, which imposed the need of legal changes within the field of contested procedure also, have caused this procedure to become more efficient vis-à-vis legal provisions which were in force until October 6th 2008. Through the Law on Contested Procedure (hereinafter “LCP”), the legislator has aimed, inter alia, to make the contested procedure more concentrated, and thus, more efficient. In this regard, the Kosovar legislator has determined that it is mandatory for the parties to present any and all relevant evidence for resolving the dispute until the preparatory session, and in the event that one was not held, until the first main hearing session. As an exception, the parties may present relevant evidence even after this stage of proceedings, provided that their failure to present said evidence no later than at the preparatory session, respectively first main hearing session, was through no fault of their own. I consider that these legislative amendments are vital to ensuring practical implementation of the principle of efficience in the contested procedure.

Eksistensi Penanaman Investasi Asing di Indonesia dan Hak Menguasai Negara Berdasarkan Pasal 33 UUD NRI Tahun 1945

Jurnal Hukum ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 1833
Author(s):  
Rihantoro Bayu Aji
Keyword(s):  
Water Resource ◽  
Public Service ◽  
Foreign Investment ◽  
Public Interest ◽  
Oil And Gas ◽  
Unfair Competition ◽  
Foreign Investor ◽  
Foreign Companies ◽  
The Law ◽  
The Right

 AbstractActually the existence of foreign investment in Indonesia is not new phenomenon, due to foreign investment exist since colonialism era.The existence of foreign investment is still continuing to Soeharto era until reformation era. Spirit of foreign investment in colonialism era, Soharto era, and reformation era are different. Foreign investment in colonialsm era just explore of nation asset and ignore of nation welfare, and this matter is different from the character of foreign investment in Soeharto era also reformation era. Eventhough the involvement of foreign investor have any benefits to the host country, but on the other hand foreign investment have business oriented only whether the investment is secure and may result of profit. Refer to The Law Number 25 Year of 2007 Concerning Investment (hereinafter called UUPM) can not be separated from various interest that become of politic background of the law, even the law tend to liberalism of investment. Liberalism in the investment sector particularly of foreign investment basically exist far from issuing of UUPM, and the spirit of liberalism also stipulate in several rules among others The Law Number 5 Year of 1999 Concerning Prohibitation of Anti Trust and Unfair Competition, The Law Number 22 Year of 2001 Concerning Oil and Gas, The Law Number 7 Year of 2004 Concerning Water Resource, and also The Law Number 30 Year of 2009 Concerning Electricity.   Many rules as mentioned above has liberalism character and also indicator opposite wit the right to manage of the state to nation asset that relate to public interest as stipulated in the Indonesia Constitution. Actually the issuing of UUPM in case of implementation of article 33 Indonesia Constitution (UUD NRI 1945). Due to opportunity by Government to foreign investment as stipulate by article 12 UUPM and also the existence of many rules as well as The Law Number 5 Year of 1999 Concerning Prohibitation of Anti Trust and Unfair Competition, The Law Number 22 Year of 2001 Concerning Oil and Gas, The Law Number 7 Year of 2004 Concerning Water Resource, and also The Law Number 30 Year of 2009 Concerning Electricity, so the foreign investment that relate to public service is more exist in Indonesia. The existence is reflected many foreign companies. Free of foreign investment relate to public service is opposite with spirit of article 33 Indonesia Constitution. Keywords: Foreign Investment, Right of  State, Article 33 Indonesia Consitution AbstrakEksistensi penanaman modal asing (investasi asing) di Indonesia sebenarnya bukan merupakan fenomena baru di Indonesia, mengingat modal asing telah hadir di Indonesia sejak zaman kolonial dahulu.   Eksistensi penanaman modal asing terus berlanjut pada era orde baru sampai dengan era reformasi. Tentunya semangat penanaman modal asing pada saat era kolonial, era orde baru, dan era reformasi adalah berbeda. Penanaman modal asing pada saat era kolonial memiliki karakter eksploitatif atas aset bangsa dan mengabaikan kesejahteraan rakyat, hal ini tentunya berbeda dengan karakter penanaman modal asing pada era orde baru, dan era reformasi. Sekalipun kehadiran investor membawa manfaat bagi negara penerima modal, di sisi lain investor yang hendak menanamkan modalnya juga tidak lepas dari orientasi bisnis (oriented business), apakah modal yang diinvestasikan aman dan bisa menghasilkan keuntungan. Melihat eksistensi Undang–Undang Nomor 25 Tahun 2007 tentang Penanaman Modal (UUPM) tidak dapat dilepaskan dari beragam kepentingan yang mendasari untuk diterbitkannya undang–undang tersebut, bahkan terdapat kecenderungan semangat dari UUPM lebih cenderung kepada liberalisasi investasi. Liberalisasi pada sektor investasi khususnya investasi asing pada dasarnya eksis jauh sebelum lahirnya UUPM ternyata juga tampak secara tersirat dalam beberapa peraturan perundang–undangan di Indonesia. Perundang–undangan tersebut antara lain Undang–Undang Nomor 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat, Undang–Undang Nomor 22 Tahun 2001 tentang Minyak Dan Gas Bumi, Undang–Undang Nomor 7 Tahun 2004 tentang Sumber Daya Air, dan Undang–Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan.Banyaknya peraturan perundang–undangan yang berkarakter liberal sebagaimana diuraikan di atas mengindikasikan bahwa hak menguasai negara atas aset bangsa yang berkaitan dengan hajat hidup orang banyak sebagaimana diamahkan oleh Undang–Undang Dasar 1945 (Konstitusi) mulai “dikebiri” dengan adanya undang–undang yang tidak selaras semangatnya. Padahal, UUPM diterbitkan dalam kerangka mengimplementasikan amanat Pasal 33 Undang–Undang Dasar Negara Republik Indonesia Tahun 1945 (UUD NRI 1945). Dengan adanya peluang yang diberikan oleh pemerintah kepada investor asing sebagaimana yang diatur dalam Pasal 12 UUPM ditambah lagi dengan adanya Undang–Undang Nomor 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat, Undang–Undang Nomor 22 Tahun 2001 tentang Minyak Dan Gas Bumi, Undang–Undang Nomor 7 Tahun 2004 tentang Sumber Daya Air, dan Undang–Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan, maka investasi asing yang berhubungan dengan cabang– cabang yang menguasai hajat hidup orang banyak semakin eksis di Indonesia. Terbukanya investasi asing atas cabang–cabang produksi yang menguasai hajat hidup orang banyak tentunya hal ini bertentangan dengan konsep hak menguasai negara sebagaimana diatur dalam Pasal 33 UUD NRI 1945. Kata Kunci: Investasi Asing, Hak Menguasai Negara, Pasal 33 UUD NRI Tahun          1945

CYBERCHONDRIA INFORMATION CLINIC: Internet's Impact on your Health (Preprint)

2019 ◽  
Author(s):  
Valentina Escotet Espinoza
Keyword(s):  
Human Life ◽  
Brain Regions ◽  
Physical Symptoms ◽  
Digital Design ◽  
Somatization Disorder ◽  
The Internet ◽  
Cultural Aspects ◽  
Starting Point ◽  
The Right ◽  
The Relationship

UNSTRUCTURED Over half of Americans report looking up health-related questions on the internet, including questions regarding their own ailments. The internet, in its vastness of information, provides a platform for patients to understand how to seek help and understand their condition. In most cases, this search for knowledge serves as a starting point to gather evidence that leads to a doctor’s appointment. However, in some cases, the person looking for information ends up tangled in an information web that perpetuates anxiety and further searches, without leading to a doctor’s appointment. The Internet can provide helpful and useful information; however, it can also be a tool for self-misdiagnosis. Said person craves the instant gratification the Internet provides when ‘googling’ – something one does not receive when having to wait for a doctor’s appointment or test results. Nevertheless, the Internet gives that instant response we demand in those moments of desperation. Cyberchondria, a term that has entered the medical lexicon in the 21st century after the advent of the internet, refers to the unfounded escalation of people’s concerns about their symptomatology based on search results and literature online. ‘Cyberchondriacs’ experience mistrust of medical experts, compulsion, reassurance seeking, and excessiveness. Their excessive online research about health can also be associated with unnecessary medical expenses, which primarily arise from anxiety, increased psychological distress, and worry. This vicious cycle of searching information and trying to explain current ailments derives into a quest for associating symptoms to diseases and further experiencing the other symptoms of said disease. This psychiatric disorder, known as somatization, was first introduced to the DSM-III in the 1980s. Somatization is a psycho-biological disorder where physical symptoms occur without any palpable organic cause. It is a disorder that has been renamed, discounted, and misdiagnosed from the beginning of the DSMs. Somatization triggers span many mental, emotional, and cultural aspects of human life. Our environment and social experiences can lay the blueprint for disorders to develop over time; an idea that is widely accepted for underlying psychiatric disorders such as depression and anxiety. The research is going in the right direction by exploring brain regions but needs to be expanded on from a sociocultural perspective. In this work, we explore the relationship between somatization disorder and the condition known as cyberchondria. First, we provide a background on each of the disorders, including their history and psychological perspective. Second, we proceed to explain the relationship between the two disorders, followed by a discussion on how this relationship has been studied in the scientific literature. Thirdly, we explain the problem that the relationship between these two disorders creates in society. Lastly, we propose a set of intervention aids and helpful resource prototypes that aim at resolving the problem. The proposed solutions ranged from a site-specific clinic teaching about cyberchondria to a digital design-coded chrome extension available to the public.

Protecting the Desperate: The Regulation of Payday Lending

2015 ◽  
Vol 43 (1) ◽  
pp. 147-176
Author(s):  
Andrew J Serpell
Keyword(s):  
Consumer Credit ◽  
Law Reform ◽  
Payday Lending ◽  
Short Term ◽  
Payday Loans ◽  
The Law ◽  
The Right ◽  
Credit Contracts ◽  
The Cost

Payday loans are small-amount, short-term, unsecured, high-cost credit contracts provided by non-mainstream credit providers. Payday loans are usually taken out to help the consumer pay for essential items, such as food, rent, electricity, petrol, broken-down appliances or car registration or repairs. These consumers take out payday loans because they cannot — or believe that they cannot — obtain a loan from a mainstream credit provider such as a bank. In recent years there has been a protracted debate in Australia — and in several overseas jurisdictions — about how to regulate the industry. Recent amendments to the National Consumer Credit Protection Act 2009 (Cth) — referred to in this article as the 2013 reforms — are designed to better protect payday loan consumers. While the 2013 reforms provide substantially improved protection for payday loan consumers, further changes to the law may be warranted. This article raises several law reform issues which should be considered as part of the 2015 review into small amount credit contracts, including whether the caps on the cost of credit are set at the right level, whether the required content and presentation of the consumer warnings needs to be altered, whether more needs to be done to protect consumers who are particularly disadvantaged or vulnerable and whether a general anti-avoidance provision should be included in the credit legislation.

Punishment

2018 ◽  
Author(s):  
Mark McClish
Keyword(s):  
Legal System ◽  
State Violence ◽  
The Law ◽  
The Right

In Indic thought, the daṇḍa (“staff”) represented the king’s use of violence for the purpose of governance. His right and obligation as daṇḍadhara (“wielder of the staff”) to punish those deemed deserving of punishment under the law defined the king’s role in the legal system. In this sense, daṇḍa represented the legalization of domination, in which state violence was reckoned as just punishment. But the king was not the only one with a recognized right to punish. This chapter explores how daṇḍa was used to articulate and legitimize relations of domination within the legal imagination of Dharmaśāstra. It asks, in particular, who is conferred the right to punish and how much?

Relaxations of Contractual Privity and the Need for Third Party Rights in Chinese Contract Law

2018 ◽  
Author(s):  
Chen Lei
Keyword(s):  
Direct Action ◽  
Contract Law ◽  
Third Party ◽  
Chinese Law ◽  
The Third ◽  
Right Of Action ◽  
The Law ◽  
The Third Party ◽  
The Right

This chapter examines the position of third party beneficiaries in Chinese law. Article 64 of the Chinese Contract Law states that where a contract for the benefit of a third party is breached, the debtor is liable to the creditor. The author regards this as leaving unanswered the question of whether the thirdparty has a right of direct action against the debtor. One view regards the third party as having the right to sue for the benefit although this right was ultimately excluded from the law. Another view, supported by the Supreme People’s Court, is that Article 64 does not provide a right of action for a third party and merely prescribes performance in ‘incidental’ third party contracts. The third view is that there is a third party right of action in cases of ‘genuine’ third party contracts but courts are unlikely to recognize a third party action where the contract merely purports to confer a benefit on the third party.

The Obligation to Afford Reparation to Injured Individuals

2017 ◽  
Author(s):  
Carla Ferstman
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Treaties ◽  
The Law ◽  
The Right ◽  
Right Of Access ◽  
The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

Sign in / Sign up

Export Citation Format

Share Document