Evaluation Concepts in Civil Law: Historical Experiences of Development and Application

Bali, as a province with strong roots in local cultural traditions and significant economic importance for Indonesia, is striving to balance modernity and tradition, economics, especially mass tourism, and cultural identity. This is why Universitas Warmadewa, one of the largest Balinese universities, chooses the theme ‘Local Wisdom and Business Law’ for its international conferences each year.As a non-Indonesian legal scholar, this theme presents two challenges for me. Firstly, I am not an expert in tourism economics and can only approach the topic from a traditional market law perspective, theoretically. Secondly, the terms used in Indonesian legal discussions may seem vague and unclear from a German perspective, as the legal discussion in Indonesia integrates traditional legal phenomena pragmatically into the applicable legal system. This may also be historically conditioned because since independence Indonesia has to handle a legal pluralism in law, which also finds its cause in the legacy of the colonial era.When speaking on the legal perspective of ‘local wisdom’, several questions are unclear to me:What exactly is local wisdom and how can it be defined?Where does it fit into the Indonesian legal system?What role can local wisdom play in contemporary law?Local wisdom may be understood as part of traditional customary law or Adat, at least in terms of its influence on legal issues, as the conference theme suggests. The terminology around ‘customary law’, ‘Adat’, ‘indigenous law’, or ‘living law’ is still a problematic issue in Indonesian scientific discussion and should only be briefly mentioned in this presentation. The term ‘Adat law’ was originally not used in Indonesian society and was first systematically used by the Dutch. Van Vollenhoven, considered the ‘father of Indonesian Adat law’ by Indonesian scholars, defined Adat law as law that is not based on codified legal rules from the legislator. This definition is still used by contemporary Indonesian scholars. Adat law in this sense contains sanctions, making the character of ‘law’. It was characterized by Van Vollenhoven as dynamic and flexible folk law, which combines the term with the often-used term of ‘living law’. There are numerous discussions in Indonesian literature about Indonesian customary law, its functions, and significance, but the terminology has not been clearly defined and the role of religious law is also subject to numerous publications.Therefore, having read various contributions on the topic, I am left confused because some of them discuss the existence of legal principles of living customary law and describe them as “national Indonesian principles,” which can replace parts of the post-colonial Indonesian law, but they do not clearly identify these principles. The topic seems to be of almost patriotic importance to Indonesia, making it particularly difficult for foreign scholars to approach the subject in presentations before Indonesian colleagues. My contribution should be seen in light of this difficulty, as a first observation of the phenomenon from a foreign perspective.The term Adat is already difficult to comprehend, and this is even more true for the term “local wisdom” in a legal context. So, what is the “Local Wisdom” that I am asked to talk about? The Terms of Reference of our conference describe the meaning of “local wisdom” mainly as the clash of market actors in local Balinese tourism that can lead to conflicts, which the law should resolve. These conflicts are said to occur because local communities and institutions, based on a kind of traditionally grown trust, seek to build and maintain their business relationships in the tourism industry. This trust, which one could call “traditional good faith,” meets the need to regulate contractual arrangements more formally in terms of contract law (“more official...instead of just relying on promises or good faith”).In this sense, local wisdom is an aspect of good faith. Based on this understanding of the term, I have no systematic issues with the term “local wisdom.” However, it should be noted that good faith and contract, as a predictable shaping of legal relationships between market actors, should not be seen as opposites. It is possible and necessary to resolve disruptions in contractual relationships in light of good faith and, if necessary, adapt contractual regulations. Here, “local wisdom” should not be understood as a unique source of good faith, but as a general aspect that can influence the expectations of the contracting parties and their trust in shaping the law. This raises the question of which factors should be taken into account by the non-local contracting party in good faith, and which should not. It is a question of the concrete assessment of the structure of interests and the balance of the contract, how to allocate risk and assign external aspects to the contracting parties and which aspects should be considered subsequently.This is a theoretical matter, and it is unlikely to play a significant role in practice since local market actors and communities have the freedom, within the framework of private autonomy, to incorporate their traditional interests into the contract negotiations. This allows for traditional interests to participate in the “equivalence justice” of the contract. However, if the traditional interests of the local community result in unacceptable consequences for the contract’s execution, the question of whether these reasons can lead to a change in the contract’s basis may arise. In civil law systems, the clausula rebus sic stantibus is regulated as a limitation of the pacta sunt servanda principle and falls under the principle of good faith (bona fides). If the invocation of “local wisdom” by one party leads to the other party having to agree to an adjustment, it would have to be examined.I would like to give you an example of this, which seems credible even if no prove about the issue can be delivered due to the ‘popular’ source: A person without Indonesian citizenship acquired the right to use a plot of land with a house in Bali ten years ago. Since foreigners cannot acquire land ownership in Indonesia themselves, the foreigner had agreed on a legal arrangement with an Indonesian citizen resident in Bali, in which the Indonesian acquired ownership (hak milik) of the land with the foreigner’s money and agreed on right to use for the foreign partner. After ten years, the foreigner wanted to sell the property again to move to his country of origin. The agreement with the Indonesian partner stipulated that the Indonesian partner must agree to the sale of the plot on the wish of the foreign partner and would receive 10% of the sale amount in the event of a sale. In the case described, however, the Indonesian partner seems to have refused to sell the property on the agreed terms. He was not satisfied with the 10% share and demanded a 70% share instead. As justification for this, he argued that the contract terms should be changed because he had spiritually enhanced the property over the years through certain religious rituals and this required a revaluation of his shareholding.It is not known whether the case was heard in an Indonesian court and how it was finally settled. Assuming the case had occurred as described, from the perspective of Indonesian civil law, it is clear that no change in the business basis of the contract occurred as a result of the Indonesian partner’s spiritual acts, which can lead to an adjustment of the agreement between him and the foreign contractual partner. Just as local communities depend on their interests in cultural identity being taken into account even in legal relations with partners coming from outside, foreign investors must be able to rely on certain standards of contractual obligation. The principle of good faith would be grotesquely overstretched if local contracting partners could use fuzzy notions of ‘local wisdom’ to make contractual arrangements more flexible in their favour.Another example of the clash between traditional legal customs and supra-regional legal ideas in highly traditional markets with supra-regional economic importance, such as Bali, is the handling of legal disputes and methods of dispute resolution. The trust of traditional communities in supra-legal ties of interest in business relationships, as mentioned in the Terms of Reference to this Conference, meets a systemic trust in formal contractual regulations of non-local actors. The reference points of trust of the respective groups of market actors thus differ. This also affects dispute resolution. According to Sulastriyono, the voluntary character of traditional customary law has the advantage over civil law methods of litigation and dispute resolution of a ‘win-win’ solution, which leads to greater acceptance of the solution by the parties to the conflict. In theory, this is undeniable. However, it is questionable whether this acceptance can also be achieved among contract participants who do not originate from the respective culture, because the existence of sufficient advantages for a party may well depend on the integration of the party in the respective local society. Moreover, the indisputable advantages of consensual dispute resolution can also be well integrated in state procedural law via mediation mechanisms.Cases such as the one outlined one above would in principle be likely to erode the confidence of foreign investors in Indonesian law in general if courts do not rule clearly and draw clear boundaries here. The example seems to be a particularly extreme case, but it shows how important it is to clearly determine the meaning and possible role of terms such as ‘local wisdom’ and ‘tradition’ for use in law. Culturally related aspects are prone to serve as a tool for discrimination against individuals and companies that do not belong to the respective cultural environment. The difficulty, for example, of establishing an intellectual property right on cultural heritage follows not only from the contrast between individual subjective rights and collective subjective rights. It follows above all from the problem of determining the collective rights holders who are to benefit from ‘their’ cultural heritage. Who is a member of a certain culture? Is there a generational link or does it depend on the integration of the individual into his or her living environment? If the legal system does not want to fall back to abstruse considerations of ‘blood identity’, what remains is the assignment of such claims to territorial authorities or the state itself, whose task it is to protect cultural diversity on its territory. This is the path that the Indonesian legislature had taken in Art 38 Law No 28/2014 on copyright law.The misuse of cultural aspects carried into the application of law is also visible in another aspect: In another paper I have pointed out the problem that the concept of traditional customary law in Indonesian law and the position of Adat law in the hierarchy of norms seems in need of clarification. Shidarta notes that there is no sufficient clarity about the relationship between Adat law and state law and thus no consistent system of Indonesian law as a whole. Accordingly, the maturation of an independent Indonesian legal system suffers to this day from the internal conflict with the colonial legacy of existing state law based on Dutch civil law and the lack of a consistent overarching pluralistic concept of law. This is seen by Shidarta as a major reason why the systematic positions of customary law, Islamic law and western law within national law are not clearly defined and why a clear hierarchical determination of the various sources of law in relation to national law is lacking. The doubts about the systematic location and certainly also the failure to establish the principles of traditional customary law as original Indonesian law after the attainment of independence instead of the sources of law inherited from the colonial period are probably due - in addition to the idea of the state founders of an Indonesian unitary state (‘eenheidstaat’) - above all to the disagreement about the concept of customary law, which is formally understood in the sense of a binding source of law defined during the colonial period, or as post-colonial Adat law in the sense of traditional customary rights of various Indonesian ethnic groups either with a binding character or as norms of social order based on voluntariness. In this respect, too, different definitions of the term can be found in the literature:There is thus generally a more philosophical recognition of the importance of traditional customary law in the sense that customary law reflects the actual sense of law of the people and the Indonesian people as a nation. The latter statement seems problematic to me because the statement only applies with regard to the significance of customary law as a source of law, but not to the content of the individual customary laws of the various ethnic groups, in which different legal customs apply in each case. It therefore seems questionable to me whether Adat law can be understood in the sense of an alternative to Indonesian state law. In my opinion, Adat as a source of concrete legal norms has a supplementary development perspective in the communal area. Here it can certainly have an influence on economic life in the regions if it is applied consistently and transparently, and its importance would grow especially if the autonomy of municipal territorial units were strengthened, and a strong federalism were developed. However, a scientific inventory of norms and principles of local customary law is then required, and a clear formulation of such norms is needed, because it must be ruled out that the invocation of undefined, non-transparent or arbitrarily formulated Adat rules unduly restricts the freedom of market actors and are used as protectionist instruments in the provinces.In this sense, I believe that the postulate that Indonesian law must simply recognise Adat law as it has grown and as it is applied alive within the Indonesian local societies falls short, because the compatibility of social rules based on voluntariness and constantly changing with the overall legal system based on the rule of law is at least debatable. In other words: either one renounces the legal certainty and predictability of legal norms in the area of traditional customary law. This could then constitute a breach of the constitutionally enshrined principle of the Rule of Law. Or one formulates clear norms based on traditional legal principles, which have the character of binding legal norms and applies them in the sense of subsidiarity in the local environment with priority over central state law in certain predefined aspects. Then the rules of the hierarchy of norms must be correspondingly clear. However, the question of the hierarchy of norms then no longer presents itself as a problem of the nature of Adat or customary law because the latter would have lost its character as actual customary law. The advocates of a strong recognition of Adat by state law will, however, reject this path because they see the advantage of traditional customary law over state law precisely in its flexibility and ability to change. This flexibility would no longer be readily available through an integration of traditional principles into a local classical law in the sense of imperative norms.A clear hierarchy of norms defined by constitutional law seems indispensable, because such local customary law cannot displace state law without further ado, but only if the principle of subsidiarity and the better regulation of local circumstances by local law indicates otherwise. This would also be in line with the philosophical assessment of local customary law as the law that best captures the living conditions of the people in its cultural area of application. The importance of the principle of subsidiarity should generally be given more attention in the discussion on legal pluralism in Indonesia. This can not only ensure greater recognition of traditional customary law, but also enable the transparency necessary for the predictability of the law.Insofar as Adat is to be understood as the source of ‘abstract normative’ aspects, as certain common Indonesian legal values and principles in the sense of a ‘pan-Indonesian’ legal order and, as such, is to find its way into an independent state Indonesian civil law, legal scholarship in Indonesia will also have to identify and clearly define these principles. In doing so, it will be necessary to determine which principles of traditional customary law in the various regions of the archipelago are suitable as overarching legal principles, so that they can possibly have an identity-forming effect in a national private law. This difficult process might lead to reform of the Indonesian Civil Law which meets the special requirements of a socially and culturally integrated legal system.Indonesia as a state with a unified internal market needs a cross-cultural private law and commercial law. Consideration of the interests of local communities and traditions is of importance in a multicultural state. The Indonesian constitution therefore emphasises the specifics of traditional rights and thus guarantees Adat its own status in the legal system. However, there seems to be a lack of a clear hierarchy of norms in the legal system and a clear definition of the nature of Adat. A hint of a certain hierarchy between Adat and state law is indeed found in agricultural law (Art. 5 Law No. 5/1960 on the Basic Regulations of Agrarian Principles) and in forestry law (Law No. 41/1999 on Forestry). Adat is recognised here but must harmonise with state law. It is therefore likely to be in a relationship of subsidiarity to state law. The fundamental assertion of the primacy of state law over other co-existing legal systems is also in line with the view of Indonesian legal scholars such as Sunaryati Hartono. Referring to Griffiths’ formulation of “weak legal pluralism”, where co-existing legal systems are subordinated to a dominant formalistic national law, it can be stated that the Indonesian legal system follows this model.In my opinion, the integration of traditional customary law into the legal system should not be done as a mere tolerance of state law towards deviating regulations of facts in certain regions. From my perspective as a foreign observer, this seems to lead to significant problems for the development of the Indonesian economy and for investment. In particular, this seems to me to be the case for Bali. Local Wisdom can be incorporated into the contractual relations of the parties within the framework of private autonomous arrangements. A ‘creative’ qualification of protectionist measures against outside market actors or the justification of the failure to sanction breaches of contract or violations of law against outsiders as ‘Adat’ or ‘protection of local traditions’ should be consistently avoided.Incidentally, it seems to me that in contract law there is no real opposition between state law and traditional customary law. Either the parties trust each other, in which case state law does not prevent an agreement based on good faith. Or they do not, in which case only state contract law can lead to proper solutions. The same applies to traditional dispute resolution methods, to which the parties to the conflict can easily submit. In contrast, the integration of customary law as independent Indonesian legal principles or as legal norms at the local or municipal level into Indonesian law would require considerable academic effort. For this, the principles concerned would have to be clearly identified, systematised, and formulated to be able to substantiate a claim to validity beyond the respective local communities. The mere reference to historically evolved convictions of local communities is too vague. The term ‘local wisdom’ seems to me to be problematic in this sense to accurately describe the question of the collision of traditional customs and expectations of outside market actors, especially since it is already conceptually positively evaluative. Finally, it should not be forgotten, that the continental European codifications are culturally neutral and in big parts based on the Roman law. Roman law itself was not developed under the cultural framework of northern and middle European regions, however it served well as source for the modern European codifications. These codifications are working fine until these days in different nations without obvious incompatibilities with local traditions. The amount of a ‘Volksgeist’ after the idea of Friedrich Carl von Savigny within the Private Law does not play a big role in the contemporary discussion as law should be seen in a pragmatic way as a viable tool to organize the modern society. Indonesia is an important economically emerging nation. As such it might be a good idea to keep an internationally compatible private law, which might be carefully adapted to certain peculiarities of the Indonesian society. The use of general clauses as entrance doors for local legal convictions seems to be a good way for that and a clearly defined legal hierarchy with a constitutionally based legal subsidiarity principle seems important. In contrast, the foundation of modern law on nationalistic, local, or indigenous traditional customs should only be done with extreme caution, if at all. The contemporary discussion on the role of Adat in Indonesian law shows the great difficulty of determining viable legal rules that can enter a future reformed Indonesian private law as ‘originally Indonesian’. The criticism against Von Savigny’s ‘Volksgeist’ idea also applies here: Defining who the ‘people’ are and what constitutes their common identity is already hardly rationally possible in a non-multi-ethnic state, even more in a multi-ethnic state. National identity-forming circumstances are hardly suitable as common principles for pluralistic societies.

The article is devoted to administrative legal personality, which is part of the structure of the administrative-legal personality of private legal entities. At the same time, it is argued that, on their own, the rules of law cannot influence the behavior of their addressees, therefore the only instrument by which legal regulation is used to help ensure such influence is the mechanism of legal regulation within which the functions of law are implemented, and specific life situations are addressed. It is noted that, like any state mechanism, the mechanism of legal regulation consists of the relevant elements, namely: norms of law, legal relations, and acts of realization of rights and obligations. Thus, we can conclude that the disclosure of the features of the mechanism of legal regulation is possible only if a thorough study of its elements. Thus, each state that there is no language and there can be no legal regulation, which in its nature and nature is different from other types of regulation. It should also be remembered that, at its core, legal regulation is not material but is done through the consciousness and will of the people. It is perfect. However, any ideal process cannot occur without the participation of matter. Based on all the above, it can be stated that one of the constituent parts of the mechanism of legal regulation is legal relations. It should be remembered that public relations also have an internal structure to which the subject, object, and content relate. However, the absence of at least one of the elements of the relationship automatically complicates, or even precludes their very existence. The same rule applies to the mechanism of legal regulation. Thus, the study of each of the components of the mechanism of legal regulation has the same scientific significance and importance as the study of the mechanism itself. Therefore, if we conduct a study of administrative-legal personality, then it must take into account its place and the impact on legal regulation as a whole. Legal personality nowadays also exists in administrative law, although the very concept of “legal personality”, as a certain characteristic of a legal entity, originally originated in civil law. However, it should be remembered that the method of administrative law is significantly different from civil law, and therefore the use of civil law expertise in the field of legal personality should be used with extreme caution. In his desire to ensure state control and the possibility of applying state coercion, the legislator adapted the rules of public law to the construction of a legal entity of private law. On this basis, it should be noted that different types of legal entities under private law would have different levels of administrative capacity. That is why the legal capacity of legal persons under private law can be recognized as administrative law, both social and legal capacity, and the need to be the subject of administrative-legal relations. Keywords: administrative-legal personality, legal entity, private law, mechanism of legal regulation.

The article is subdivided into two parts. While the first part reflects the so far development in the recodification of the Czech private law and its trends, the second part of the paper analyses in general terms certain parts of the Civil Code as arranged according to sections and presented for discussion. At the beginning, the authors state that after the year 1989 with respect to the initiated fundamental social changes, especially in the light of the transition to market economy, the situation in legislation was far from satisfactory. Therefore, after the first urgent legislative initiatives (fundamental amendment of the Civil Code, adoption of the Commercial Code) a pressing need for a systematic re-codification of private law arose. Each civil law codification represents an important landmark not only in the development of the civil law itself, but it is a landmark in the legal system as a whole. This applies both to jurisdictions where the new codification through the new enriching elements consummates the prior consolidated and stabilized development and to such jurisdictions - as is the case of this post-communist country – where the recodification represents an opportunity to heal the vacuum in civil law and the deformations and weak points of the civil law regulation before the year 1989 (see especially considerable disintegration of individual parts of civil law provided for in a number of codices, among which, however, no necessary links have been established). The article concludes that in spite of numerous de-codification phenomena, characteristic of modern society, the codification of private law is the basis of unified and integral system and does not represent a hangover of the old times. For all these reasons it was perfectly justified to proceed to the re-codification of civil law in this country. The codification, however, has to meet certain fundamental prerequisites in order to exercise its function in modern society. First, in its fundamental concept expressed most generally in the code the re-codification must reflect – through its philosophical idea determining the purpose of private law together with its universally recognized unifying civil law principles, either explicit or not, as well as through the regulation of the fundamental civil law concepts effected to a reasonably general degree and on a professional level – not only the current situation and needs but also the civil law relations to be expected in the third millennium. This fundamental approach expressed in the most generally conceived code must also allow for continuous and flexible responses to new phenomena arising from the current accelerating speed of social, economic, and technological changes. To meet these purposes, the conception has to be such so as to enable the creation and functioning of special legal norms, especially acts, which as complements to generally conceived code shall represent integral parts of a unified and integral system of civil law and the court decision which within the framework of continental written law play a role indispensable in the process of formation of the contents of civil law norms. The present paper argues that the submitted codification introduced by the most generally conceived code as universal basis, which in a subsidiary manner is applicable to all other branches of civil law, is capable of meeting the expectations of the modern society to have a unified, integral, complete, yet open, harmonized and transparent system of private law. It is the Civil Code that should assume the position of such generally conceived code (codex) also because it has always played such role and has had a traditional position in continental law. In the following passages, the article focuses on the mutual relationship between the Civil Code on one hand and the Commercial and Labour Codes on the other. In conformity with the intended subject-matter of the law as subsequently adopted, the article comes to a conclusion that it is theoretically justified and systematic to designate the special commercial regulation currently in preparation as a law. This special business regulation in a form of law shall in its coherence (it will involve the provisions regulating fundamental business law concepts, companies, co-operatives, etc.) is going to represent a secondary general basis to be applicable for other business law norms in a subsidiary manner. On the other hand, the article is critical of the fact, that the approved intended subject-matter of the Civil Code counts on the existence of Labour Code which fact is incoherent from the theoretical as well as systematic point of view. It is true that the subsidiary affect of the general part of the Civil Code (as a basic private law code) on employment relations is admitted (subsidiary principle), the leading principle, however, is that the Labour Code itself determines which provisions of the Civil Code may apply to employment relationship (the principal of delegation). In its second part, the article analyses – mostly in general terms – the submitted general part as subdivided into sections and the authors show some of the fundamental strong points of this part (the approach to private law in its completeness, natural link with the constitutional and international bases of private law, the emphasis placed on the non-mandatory character of the private law regulation), and they also draw the attention to some of the weak points (especially the system of delimitation of the regulation of general rights of persons in the Civil Code and in the special legislation, the proposed regulation of juridical persons, the proposed conception of things). The article also deals with the legal terminology, the formulations and the legal language as a whole which is used in the general part as subdivided into sections. In this respect, the paper recommends a rather reserved approach with respect to the principal of continuity. Terminology, terminological phrases and concepts once adopted both in practice and theory and used over a long period of time, and then changed, may bring about the risk of destabilization of legal practice and cause legal uncertainty. In the conclusion, the authors explain why the adoption of the new Civil Code as a universal basis of private law, should not be unreasonably hasty with regard to its key role in civil law, legal system and the life of society at large, no matter how urgent such re-codification appears to be in this country, its legal system and society. The commenced and continuing legislative work should not result in immature civil law re-codification which would in its system, contents and terminology represent anything else than modern, relatively stable, well designed and solid framework for private law relations rightly expected by the public.

Стаття присвячена взаємодії тексту Цивільного кодексу України (зокрема ст. 7) зі звичаєвим правом як суспільним явищем. Досліджено співвідношення понять звичаю та правового звичаю в контексті регулювання цивільних відносин. Обґрунтовано тезу про те, що регулятором цивільних відносин є звичай загалом, а джерелом цивільного права - правовий звичай як його вид. Поняття звичаю, вказане у ст. 7 ЦК України, визнано вдалим, адже воно включає як правові звичаї (регулюють правовідносини як юридичні норми), так і звичаї релевантні праву (мають значення у правозастосуванні).
 Виконано порівняння звичаїв загального характеру та правил персональної ділової практики конкретних контрагентів. Зроблено висновок про те, що звичай як правило, утворене загальною діловою практикою (більшість підприємців відповідної галузі чи регіону), не є тотожним правилу, утвореною персональною діловою практикою сторін. Персональна ділова практика сторін здатна сформувати правило, що за юридичними наслідками прирівнюється до умови договору, укладеного між ними. Натомість загальна (деперсоніфікована) ділова практика утворює правовий звичай, який прирівнюється за юридичним значенням до норми законодавства (загальнодержавної, місцевої чи галузевої).
 Проаналізовано поняття звичаїв ділового обороту та доцільність його використання в тексті Цивільного кодексу України. За результатами цього аналізу звичаями ділового обороту окреслено ті, що були утворені за участю суб'єкта підприємницької діяльності. Запропоновано усунути відсилання до звичаїв ділового обороту з тексту кодексу та замінити їх у відповідних статтях відсиланнями до звичаїв загалом. Оскільки звичай набуває чинності у цивільних правовідносинах за умови його фактичної усталеності, ця характеристика звичаю повинна бути збережена в тексті Цивільного кодексу України.
 Висвітлено можливість письмової фіксації звичаїв у документах, які не мають статусу самостійних джерел права. Запропоновано доповненити текст Цивільного кодексу України окремою статтею про узанси в розумінні звичаїв, які зафіксовані у документарній формі торгово-промисловими палатами й іншими авторитетними організаціями. Розглянуто проблему конкуренції законодавчих і звичаєвих норм у ході регулювання цивільних відносин. При згаданій конкуренції повинна застосовуватися норма законодавства, якщо компетентним суб'єктом не буде встановлено, що така норма є неконституційною чи неправовою.

The article highlights the pedagogical and educational-methodical work of professor S. M. Korneev, including his work on the systematics of the civil law course. On this basis, the main goals and objectives of university (higher) legal education in the field of civil law are revealed. With reference to the works of the classics of Russian civil law I. A. Pokrovsky, L. I. Petrazhitsky and others, devoted to the issues of methods of teaching civil law, the necessity of studying in law schools not only and not so much the content of the current legislation and the judicial practice of its application (i. e. jurisprudence), as the conceptual foundations of civil science (i. e. jurisprudence) is substantiated on this basis, students develop the skills of legal thinking, based on their understanding of the essence and principles of civil (private) law, the moral side of civil law regulation and its focus on achieving social justice. From these positions, attempts are criticized to fundamentally reorient the university training of lawyers from a general theoretical to a “practice-oriented” model that does not take into account the constant changes in modern legislation, as well as the various shortcomings and errors in both its content and the judicial practice of its application.

The article is devoted to the topical issues of analysis and systematization of sources of Sports and Civil Law. The role of sports in the development of modern society is constantly growing. The development of civil and sports legal relations requires the systematization of the sources of Sports Law, which should harmonize the entire complex of normative legal acts in the field of physical culture and sports. This would make it possible to develop educational programmes for training future specialists in this field, and would raise the legal resolution of disputes in this field to a more professional level. State policy and private financing in this area require a qualitatively new level of legal regulation. This requires the creation and systematization of legal norms regulating sports relations. In particular, among the issues that require a legislative solution are the regulation of the legal status of the athlete, the peculiarities of the protection of the rights and interests of the subjects of sports relations, and more. For this, first of all, it is necessary to determine the legal sources of Civil and Sports Law and unify them with international legal sources. Civil and Sports Law has its own sources of law. This is the basis for its inclusion in the structure of the civil legislation of Ukraine. Systematization of civil sports legislation should be carried out through codification. This is explained by the presence of a large number of sources of Sports Law, which contain conflict of laws rules and do not always meet international requirements and standards, as a rule, they are of a general nature. It will also help to eliminate the gaps and contradictions that currently exist in the legal acts regulating the relationship between physical culture and sports. In addition, Civil and Sports Law will meet international standards, the legal status of professional athletes and other subjects of sports legal relations will become more protected, research in the field of Private Law regulation of social relations arising in the field of physical culture and sports will be intensified, it will make it possible to establish the procedure for consideration of disputes between subjects of sports legal relations more transparent.

The General Rules of the Civil Law of the People′s Republic of China(hereinafter the General Rules)shall officially come into effect as of July 1 of 2017.In this consideration, the paper probed into the legal attributes of the doctor-patient relationship in China in view of the relationship management in line with the General Rules.Also analyzed are the basic principles to be observed by both parties as regulated by the General Rules and patient rights protection.These efforts aim at elevating China′s medical service, protecting legitimate rights of both parties, and encourage a healthy and harmonious doctor-patient relationship. Key words: General Rules of the Civil Law; Doctor-patient relationship; Legal relationship; Civil capacity

This article deals with the problem of assessing the limits of public economic interest in civil legal relations. Analyzes changes in tax legislation and the limits of their "penetration" through public economic interest in Civil Law. A number of author's criteria for evaluating such limits in civil relations are proposed. The solution of the problem under study will allow: first, to determine the limits of the legal influence of public economic interest in contractual legal relations; second, to increase the effectiveness of the Institute for the protection of the rights of business entities in tax legal relations.

The article analyses the origins of comparative civil law studies in Russia starting from the reforms of tsar Peter I. The author understands comparative civil law as a branch of legal science that makes comparative law studies applying the civil law methodology. The civil law methodology is applied by a researcher who studies legal relationship between the parties which are in equal legal position. The analysis of legal rules of various countries, regulating of alike legal relationship in different countries affords to find the best way to regulate the corresponding relationship. The purposes of comparative analysis varied in various periods of the development of Russia. The role of the Institute and the comparative law studies related to civil law are also the subject of the present article. Within the article the author pays attention to tendencies in the foreign civil law regulation such as extraterritorial application of the rules of law, or the effect of the public interest presence.

In the article, the author explores the concept of private finance law, outlines its structure, and defines its place within the system of positive law. The author identifies legal relations as the primary criterion for classification, specifically focusing on what unites them within the subject of legal regulation. According to the author, private finance law constitutes a set of legal norms that model legal relations (legal constructs) in the realm of private finance. The author distinguishes between the general and special parts of this legal field, with each part further divided into institutions. The general part encompasses institutions based on types of legal relations, while the special part focuses on areas where various models of these legal relations intersect. The author argues that private finance law is neither a component of civil law nor financial law. Instead, it is a complex normative formation distinguished by legal relations within the corresponding sector of the national economy. It falls under the domain of economic law. The author concludes that there is currently no basis for codifying legislation on private finance.

THE LAW OF NATIONS AND THE SALAMANCA SCHOOL OF THEOLOGY* T HE Salamancan theologians followed faithfully the teachings of the Angelic Doctor on the concept of law in general and of the natural law in particular. They were able to give a new actuality to both of them by their dynamic incorporation of the ethical-juridical problems of their time. But their progressive labor and creative genius are most manifest in the field of the law of nations. For here they were able not only to contribute developments and applications in close conformity with Thomistic principles, but to make original advances as well in a doctrine that has always been embodied in philosophical-juridical studies. The names of these great theologians will always be associated with the problems of the law of nations and with international law, since their intellectual fostering of these sciences is universally recognized. To call Vitoria the founder or the father of the law of nations and of international law may perhaps meet with some opposition , since the famous " jus gentium " has been spoken of from the days of antiquity. Therefore, to evaluate the doctrinal originality of the classical theologians it is necessary to compare their interpretations with those that preceded them. As signposts along the way we shall briefly indicate the Roman, Isidorian and Thomistic ideas pertaining to our subject. HmTORICAL ANTECEDENTs t RomanLaw In the Pandects of Justinian, edited in the middle of the sixth century (533), is found the very same matter which had been inherited from the Roman jurists of classical times. One can *In tribute to Francis de Vitoria, 0. P., Founder of International Law, on the occasion of the fourth centenary of his death (August 1~, 1546) . 186 THE LAW OF NATIONS 187 easily recognize a twofold division of law in the doctrine of these jurists, with distinct concepts..in the terms employed. Gaius (160?) established the first twofold division: "All peoples who are governed by laws and customs utilize a law which is partly proper, partly common to all mankind. That law which each people establishes for themselves is proper to each city and it is called civil law, because it is proper to the city itself. But that which constitutes the natural law among all men and which is equally observed by all is called the law of nations, since it governs almost all peoples." 1 Now we have indicated the first distinction between civil law, which is proper to each city, and the law of nations, which is the common inheritance of all mankind, dictated by natura] reason and commonly used in almost an identical manner among all peoples. In this twofold division we see that the law of nations is almost identical with natural law, since it proceeds from natural reason as the directive of a natural order of juridical relations coetaneous with humanity itsel£.2 By nature alone all peoples have been led to give almost identical solutions to the fundamental problems of life before any legislator had established laws in the strict sense. These solutions were the product of natural reason and they remained separate from the domain of positive law.3 The Roman jurist presents varioul;l examples which in our modern terminology have sometimes 'been included in natural law and at other times in the law of nations in the strict sense; for example, the appropriation of abandoned property, the spoils of war, servitude, imprisonment of the conquered, etc., which are commonly considered to be governed by the law of nations.4 Almost a century later Ulpian {228) proposed a new threefold division, which finds foundation in Cicero: natural law, 1 Dig. L. 1, tit. 1, 9. • Dig. L. 41, tit. I, 1: "Antiquius jus gentium cum ipso genere humano proditum est." • Dig. L. 7, tit. 5, 2: "Nee enim naturalis ratio auctoritate Senatus commutari potuit." Dig. L. 4, tit. 5, 8: " Civilis ratio naturalia jura corrumpere non potest." • Dig. L. 41, tit. 1, I & S; L. 41, tit. 1, 5 & 7; L. 1, tit. 6, 1. , 188 JOSE MANUEL DE AGUILAR the law of nations, and civil law. The law of nations as Gaius conceived it, i.e., as distinct from civil law...

Lebanese Women at the Crossroads: Caught between Sect and Nation

The article presents an analysis of situations in which civil law is applied in the regulation of labor relations. The authors note that civil law is applied in the regulation of labor relations in several cases. The most common situation is the reference rules provided for by the Labor Code of the Russian Federation itself, which directly provides for situations in which the courts can apply civil law rules when regulating labor relations. In some cases, if there is a gap in law, the courts apply the norms of the Civil Code of the Russian Federation when considering labor disputes, filling the gaps in the regulation of labor relations. In a number of cases, the Labor Code of the Russian Federation adopted civil law structures, although in this case it is no longer possible to talk about the application of civil law norms, since in the case of transferring these structures to the Labor Code of the Russian Federation, they become labor law norms. Also, in practice, there are situations when, simultaneously with labor relations, other relations arise, including civil law relations. In these cases, the courts also apply civil law. The authors describe these situations, give examples from judicial practice, and also propose ways to solve the defects arising in the regulation of labor relations.

The condition among the Indonesians nowadays indicated that there are many legal cases, especially in the medical disputes between doctors and hospitals on the one side towards their patients on the other side. The medical disputes are basically emerged because there is an inequality between patients expectation with reality that patients get. The first problem of this research is how are the legal relations of doctors and hospitals on the one side towards their patients on the other side under the Indonesian civil law system, and the second problem of this research is what are the criteria to determined doctors and hospitals could be liable under the civil law system towards their patients damaged in the medical disputes. The first objective of this research is to study and analyze how are the legal relations of doctors and hospitals on the one side towards their patients on the other side under the Indonesian civil law system, and the second objective of this research is to study and analyze what are the criteria to determined doctors and hospitals could be liable under the civil law system towards patients damaged in the medical disputes. The method used in approaching the problem of this research is normative juridical. The type of this research is descriptive analytics. The source of this research is from secondary data with using primary legal substance, secondary legal substance, and tertiary legal substance. Based on the result of the research, it can be concluded that are, first, the legal relations between doctors towards their patients in medical services emerged because there are therapeutic contractual and the regulations which is regulated in Civil Law Code Article Number 1233, while the legal relations between hospitals towards their patients included in common contractual which is regulated in Civil Law Code Article Number 1234, and also could emerged according to Civil Law Code Article Number 1367 (3). Second, the criteria for doctors and hospitals can be declared responsible for the loss of patients, are because of negligence by doing medical actions contrary to the standards operational procedures (SOP) and the service standards, and also because of negligence based on legislation.

the present publication aims to analyze the interpenetration of labor and civil law norms in certain mechanisms for regulating sectoral legal relations, while, primarily focusing on private law constructs in labor legislation. Quite common are cases in which it is not enough for the law enforcement officer to rely only on the norms of labor legislation and/or other regulatory legal acts containing labor law norms. Based on the above, despite the provisions of Article 5 of the Labor Code of the Russian Federation, the partial use of regulatory constructs that fall outside the sphere of civil law is advisable only if the priority of protecting labor rights and interests protected by law is observed. The authors consider that certain cases of using private law constructs are permissible, and in some situations, the only correct ones, which also aims to reduce the regulatory burden and ensure uniformity of law enforcement practice.