The article discusses the role of precedents in the German judicial practice. In the European continental tradition, law enactment is within the legislature, whereas the role of the judiciary is to enforce law. In the continental system, precedent does not constitute a source of law sensu stricto , that is, a formal source of law. In order to guarantee the law utility and, ultimately, the legal certainty, courts interpret legal provisions in a unified manner. It is noteworthy that during the recent years the coherent interpretation of legal provisions and, by the same token, the commitment to law development, have increased. That means that a unified interpretation of law performed by courts may be considered a precedent. In this context, precedents and stare decisis have been replacing the logical interpretation of law in German courts.
The background of this present research is that the application of the Article 3 verse (1) of the Law No. 48 year of 2009 On Judicial Power causes some obscurity in interpreting judicial independence. Therefore, a library research method through primary, secondary, and tertiary legal materials was adopted. The research results and its analysis show that the Article 3 verse (1) of the Law No.48 year of 2009 On Judicial Power does not possess juridical, sociological and philosophical applicability. Since in its application, it often happens that the actors of judicial power abuse of power where according to Paul Scholten's thought, a law state should guarantee legal certainty and its results. An equality principle is required to realize justice in decision. Honor of justice is the main goal either in the context of state administration or justice. Therefore, it can be concluded practically restrictions of the freedom of each party has been regulated, but in its application the actors of the power itself still abuses it. It is recommended that the Parliament together with the Government revise the important principle in the context of state administration and justice namely the principle of judicial independence as stated in the Article 3 verse (1) of the Law No. 48 year of 2009 regarding Judicial Power and it be scheduled in the National Legislation Program.
Метою статті є аналіз практики застосування принципу юридичної визначеності та з'ясування його співвідношення з верховенством права.
Новизна статті полягає в характеристиці юридичної визначеності як однієї з найважливіших, очевидно недостатньо досліджених і дискусійних правових категорій з точки зору загальнонаукових, філософських, теоретико-правових і практичних позицій.
З'ясовано, що юридична визначеність (legal certainty) – одна зі складових широко визнаного та закладеного в основу практики Європейського суду з прав людини принципу верховенства права (the rule of law), яка є базовою у розумінні верховенства права. Аргументовано, що юридична визначеність є ключовою у створенні правових методів, за допомогою яких приймається, тлумачиться та застосовується законодавчий акт.
Висновки. З метою подолання недоліків правового регулювання, Конституційний Суд України, викладаючи юридичні позиції, в своїх рішеннях звертається до суб'єктів законотворчої і правозастосовної діяльності для забезпечення однозначного розуміння і тлумачення норм права, однакового їх практичного застосування. Зміст поняття юридичної визначеності з позиції Конституційного Суду України розкривається через такі техніко-юридичні показники якості нормативно-правових актів, як чіткість, зрозумілість, однозначність норм права; право особи у своїх діях розраховувати на розумну стабільність чинного законодавства та можливість передбачати наслідки застосування норм права (легітимні очікування). Поняття «юридична визначеність» співвідноситься з поняттям «верховенство права» як частина його обсягу, однак не вичерпує його.
The concept of "real legal certainty" provides a much-needed corrective to the general attention legal certainty currently receives, emphasizing relations between citizens, adding socio-legal insight, and providing a "view from below" Real legal certainty thus leads to more realistic insights on how to build state institutions. The concept was introduced by Leiden University's professor of law and governance in developing countries Jan Michiel Otto, and can be considered a central pillar of his work. In this volume, friends and colleagues of Otto engage with the concept of real legal certainty against the backdrop of an ever-increasing interest in legal certainty in policy-making and academia, providing a wide variety of examples of its relevance. Drawing on case material from all over the world, they show how real legal certainty can be understood in a bottom-up manner and how it is relevant for building state institutions. They also show how the concept can gain in relevance by taking non-state actors into account. In all, the volume is important reading for all whom share Otto's interest in translating law in the books and into law in action.
The problematic aspects of the practical implementation of the provisions of the legislation, which regulate the guarantees of employees upon termination of the employment contract, are highlighted. These issues are investigated in the aspect of its application to prosecutors during the staff reform of the Public Prosecutor's Office as the embodiment of priority measures for the reform of this institution at the current stage. The purpose of the scientific article is to establish the problematic aspects of the legislative consolidation of guarantees of prosecutors upon termination of an employment contract under labor and special legislation and the practice of its application in the process of staffing the prosecutor's office as well as formulating proposals for their solution. To achieve this goal, formal-logical, systematic, hermeneutic, comparative-legal and analytical methods of scientific research were used. It has been established that the current stage of reforming the Public Prosecutor's Office in Ukraine is a continuation of its earlier reform as an institution is focused on the needs of society and the state. The priority direction of such reform is determined by the need to eliminate gaps in normative legal acts in order to improve the implementation of constitutional powers by prosecutors. At the same time, the issue of staffing the prosecutor's office remains relevant, considering that within a short period of time, significant changes have occurred twice in such a component of the mechanism for monitoring the success of this reform as personal responsibility for the implementation of its provisions. It was established that in the absence of a legal position of a court of constitutional jurisdiction in the matter of the constitutionality of priority measures to reform the prosecutor's bodies, the problematic aspects of personnel overloading of the Public Prosecutor's Office are resolved in the legal positions of the Supreme Court and in the Decisions of the Constitutional Court of Ukraine on constitutional complaints of interested subjects regarding the extension to prosecutors of the legal guarantees provided for The Labor Code of Ukraine upon termination of an employee's employment contract. The provisions of the legislation and the corresponding judicial practice in the field of special application of the guarantees provided by labor legislation to prosecutors upon termination of the employment contract are analyzed. It was established that the special Law of Ukraine "On the Public Prosecutor's Office" defines an exclusive list of cases when the norms of the Labor Code of Ukraine are not applied to the legal relationship regarding the dismissal of prosecutors. It is argued that despite the fact that the form of a personal notice to an employee about the next dismissal is not defined by legislation, such a notice can be considered to be personal if it contains data relating to a specific, individual person, that is, it contains personal data. It is proposed, in a systematic connection with the provisions of the legislation on the protection of personal data, to qualify a notice about the subsequent dismissal of an employee as personally issued, provided that the content of the information contained in it meets the criterion of "personality", that is, the possibility of identifying the person to whom it relates.
The wage protection in Indonesian positive law is still not provide legal certainty for the weaker party in the aspect of social economic. In every anniversary of May Day, labor union always demanded to abolish the wage cost, which the Government Regulation No. 78 Year 2015 leanihg to the interests of investors. The principle of legal certainty in the norm of wage protection needs to be realized with respect to: the concept of wage protection, lack of certainty purpose of law, established by the competent authorities, accepted by society, legal materials in accordance with the legal hierarchy, the company's obligation to make books wages, and avoid multiple interpretations in legal norms.Keywords: protection of wages, labor, legal certainty.
Indonesia is a member of the WTO and has ratified the Opportunity of WTO Establishment with Law No.7 of 2004. As a member of the civil society international community, Indonesia has the obligation to harmonize its laws and regulations with international obligations that have been agreed. Law no. 25 Year 2007 is the only law that regulates the investment in Indonesia. The principle of legal certainty embraced in the Law No.25 of 2007, the development of law is directed at the realization of the national legal system originating from Pancasila and the 1945 Constitution, which includes the development of legal material of the apparatus of law and facilities and infrastructure in the framework of the development of the rule of law, to create Life of a safe and peaceful society. The protection expected by investors from the country of destination of investment has actually been done by the Indonesian government by making an agreement with the state of the investors (investment guarantee agreement). ; peer-reviewed
To date, there is no trial mechanism for Indonesian citizens to claim their rights through the constitutional complaint, even if the Constitutional Court has existed since 2003. Consequently, there has been a mechanism for upholding and promoting constitutional rights, and it has been regarded to improve Indonesian democracy. Adhere to this view, in democratic states like Indonesia and Germany, constitutional rights are often ignored by the state, even though these rights are essential in the rule of law. This paper aimed to revisit the range of a constitutional complaint following its legal certainty wield to the Indonesian Constitutional Court. This paper used juridical research by examining legal principles, legal systematics, legal synchronization, legal history, legal theory, and using a comparative law approach. This paper showed that as the constitutional complaint different from judicial review, the adoption of this mechanism should be an alternative instead of an ultimate mechanism under the constitutional rights doctrine. To ensure legal certainty to a constitutional complaint, a legal basis was needed by regulating and applying it for actual implementation in society. Meanwhile, the Constitutional Court in adjudicating a constitutional complaint could be realized through the amendment of the 1945 Constitution. KEYWORDS:Constitutional Complaint, Constitutional Court, Indonesian Constitution.
The structure and purpose of this article is two-fold. Firstly, the article identifies the issue of terminology and content of the two constitutional principles defined by the Constitutional Court of the Republic of Lithuania, namely, the principle of legal certainty and the principle of legal security. Based on the systematic analysis of the jurisprudence of the Constitutional Court of the Republic of Lithuania, this article discloses the content of the principle of legal certainty as it is understood in Lithuanian constitutional doctrine. It then focuses on the specifics of the principle of legal certainty in Lithuanian tax legislation by discussing selected issues of ensuring legal certainty in Lithuanian tax law through separate elements of this principle. Such issues as promulgation of tax legal acts, establishing the procedure for calculating taxes, the requirements of establishing the tax laws in advance, and the related issue of retrospective tax regulation together with possible shift of the constitutional doctrine in this field, are discussed from the perspective of the imperatives of the principle of legal certainty. This leads to the conclusion that, although Lithuania has a solid statutory background for ensuring the functioning of the principle of legal certainty, the real operation of this principle in the field of tax law, together with changes in the evolving tax law, poses a number of challenges.
