The Transformation of the Hungarian Legal Order 1985-2005

Name: The Transformation of the Hungarian Legal Order 1985-2005 | Transition to the Rule of Law and Accession to the European Union
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Transition to the Rule of Law and Accession to the European Union

András Jakab Péter Takács(Herausgeber*in)

Kluwer Law International (Verlag)

Erschienen am 22. Oktober 2007

694 Seiten

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Cover
Half Title Page
Title Page
Copyright Page
List of Contributors
Abbreviations
Preface
Table of Contents
I Constitutional Law
THE TRANSFORMATION OF HUNGARIAN CONSTITUTIONAL LAW FROM 1985 TO 2005
1. THE 'CONSTITUTIONAL' TRANSITION
2. THE 'INVISIBLE CONSTITUTION' OF THE CONSTITUTIONAL COURT
HUNGARIAN CONSTITUTIONAL LAW 1989-2005
1. THE HISTORY OF THE HUNGARIAN CONSTITUTION
2. IN THE DEFENCE OF THE NEW CONSTITUTION OF 1989
3. CONSTITUTIONAL AMENDMENTS SINCE 1990
4. THE HUNGARIAN CONSTITUTION AFTER THE ACCESSION
THE UNRESOLVED ISSUE HUNGARIAN MINORITY LEGISLATION AFTER 1989
1. THE HUNGARIAN MINORITIES ACT
2. THE PERSONS UNDER THE SCOPE OF THE MINORITIES ACT
3. ON REGISTRATION
RIGHTS OF MINORITIES IN THE THIRD REPUBLIC (1990-2006)
1. INTRODUCTION, COMMENTS ON METHODOLOGY
2. RIGHT TO ASSOCIATION IN RELATION TO MINORITIES
3. MINORITIES AND THE STATE (PARTICIPATION, AUTONOMY, SELF-GOVERNANCE)
4. THE INSTITUTIONAL SYSTEM OF PRESERVING IDENTITY
5. EQUALITY, EQUAL TREATMENT
6. PROTECTION OF THE RIGHTS OF MINORITIES
ELECTORAL SYSTEM IN HUNGARY 1985-2005
1. EVOLUTION AND ANTECEDENTS OF THE PRESENT ELECTORAL SYSTEM
2. ELECTIONS AS REGULATED BY THE CONSTITUTION AND THE ELECTION ACT
3. CONSTITUTIONAL COURT POSITIONS ON ELECTORAL LAW
4. EVALUATION OF THE ELECTORAL SYSTEM
THE ELECTION OF THE SELF-GOVERNMENTS OF NATIONAL AND ETHNIC MINORITIES
NATIONAL REFERENDUMS IN HUNGARY
1. CONSTITUTIONAL REGULATION OF REFERENDUM
2. FAILED AND SUCCESSFUL REFERENDUMS IN HUNGARY
3. THE CONSTITUTIONAL COURT ON DIRECT DEMOCRACY
4. THE ROLE OF THE REFERENDUM IN THE HUNGARIAN CONSTITUTIONAL SYSTEM
THE PLAINNESS OF THE QUESTIONS PROPOSED FOR REFERENDUM
LAW IMPORTATION AND CONSTITUTIONAL TRANSFORMATIONS IN POST-COMMUNIST TRANSITIONS
1. INTRODUCTION
2. LAW IMPORTATION
3. CAN LEGAL CHANGES BE SUCCESSFULLY INTRODUCED THROUGH THE IMPORTATION OF LAW?
4. CONCLUSION: FROM A ONE-WAY STREET TO TWO-WAY TRAFFIC?
LEGAL TRANSPLANT, LAW IMPORTATION, NORMATIVE OPTIMISM AND PESSIMISM
1. USE OF NOTION
2. BETWEEN NORMATIVE OPTIMISM AND DENYING THE POINT OF LEGAL RECEPTION
3. A FEW UNSUCCESSFUL LAW IMPORTS INTO THE HUNGARIAN LEGAL SYSTEM. IMPEDIMENTS TO THE IMPORTATION OF FOREIGN LEGAL INSTRUMENTS
II Administrative Law
HUNGARIAN ADMINISTRATIVE LAW 1985-2005: THE ORGANIZATION OF THE ADMINISTRATION
1. THE STRONGHOLD OF CONTINUITY: THE CENTRAL ADMINISTRATION
2. NEW ELEMENTS: INDEPENDENT ADMINISTRATIVE ORGANS
3. THE CHANGE OF THE ROLE OF THE STATE
SOCIALIST AND POST-SOCIALIST CIVIL SERVICE IN HUNGARY
CHANGES OF ADMINISTRATIVE PROCEDURE BETWEEN 1990 AND 2006
1. THE IMPORTANCE OF THE FIRST ACT ON THE GENERAL RULES OF STATE ADMINISTRATIVE PROCEDURE IN HUNGARIAN STATE ADMINISTRATIVE LAW
2. THE CHANGES TO ADMINISTRATIVE LAW IN THE LAST 15 YEARS
3. FACING THE NEW COMPREHENSIVE LEGISLATION ON PUBLIC ADMINISTRATIVE PROCEDURE
LAW ENFORCEMENT AND SANCTIONING IN HUNGARIAN PUBLIC ADMINISTRATIVE LAW BETWEEN 1989-2005
THE EVOLUTION OF FINANCIAL LAW BETWEEN 1985-2005
1. WHAT DOES THE TERM 'FINANCIAL LAW' MEAN?
2. THE BASIC CHARACTERISTICS OF THE FINANCIAL LAW IN 1985
3. SOFTENING THE PARTY DICTATORSHIP
4. CHANGE OF REGIME IN FINANCIAL LAW 1990-1992
5. CHANGES TO THE LAW OF PUBLIC FINANCES IN THE MID 1990s (1995-1996)
6. IMPORTANT NEW CHANGES IN THE LATE 1990s
7. SOME SIGNIFICANT CHANGES AT THE TURN OF THE MILLENNIUM 2000-2002
8. 'FINE TUNING' OF INTEGRATION TO THE COMMUNITY LEGAL SYSTEM IN 2003
9. SOME CONSEQUENCES OF THE ACTUAL ACCESSION TO THE EUROPEAN UNION IN THE FIELD OF FINANCIAL LAW
10. CONFLICTS BETWEEN HUNGARIAN FINANCIAL LAW AND EC LAW
11. DE LEGE FERENDA CONSIDERATIONS ON PUBLIC FINANACES
STABILITY AND CALCULABILITY REGARDING THE TAXATION OF NATURAL PERSONS IN THE PERIOD OF 1998-2005
DEFENCE ADMINISTRATION, CONSTITUTION, NATO ACCESSION
1. HISTORICAL ANTECEDENTS
2. HISTORICAL BACKGROUND TO THE CONSTITUTIONAL PROVISIONS ON SUPERVISION OF THE DEFENCE ADMINISTRATION
3. CONSTITUTIONAL RULES OF PARLIAMENTARY CONTROL AND SUPERVISION OF THE DEFENCE ADMINISTRATION
4. STRUCTURAL CHANGES TO THE INTERNAL DEFENCE ADMINISTRATION'S LEGAL REGULATION AFTER THE REGIME CHANGE
THE CHANGE PROCESS OF THE MILITARY COMMAND SYSTEM FROM THE CHANGE OF REGIME TO THE PRESENT DAY
III Criminal Law
THE DEVELOPMENT OF THE HUNGARIAN CRIMINAL LAW OVER THE PAST TWENTY YEARS
1. NEW REQUIREMENTS ON CRIMINAL LAW - 'LEGISLATIVE WAVES'
2. THE GENERAL PART OF CRIMINAL LAW - THE CHANGING SYSTEM OF SANCTIONS
3. THE SPECIAL PART OF CRIMINAL LAW - CHANGING VALUES TO BE PROTECTED
SOCIAL DANGEROUSNESS IN THE CONCEPT OF THE CRIMINAL OFFENCE
THE DEVELOPMENT OF HUNGARIAN CRIMINAL PROCEDURE BETWEEN 1985 AND 2005
1. THE EVOLUTION OF HUNGARIAN CRIMINAL PROCEDURE LAW FROM THE 1980S UNTIL THE TRANSITION
2. RECONCILING THE HUNGARIAN CRIMINAL PROCEDURE WITH THE STRASBOURG CASE-LAW
3. WORKS AIMED AT DRAFTING THE NEW CODE
4. THE RELATIONSHIP BETWEEN THE INVESTIGATION AND THE TRIAL
5. THE DIVISION OF PROCEDURAL FUNCTIONS
6. THE PARTIES' RIGHT OF DISPOSAL - CONSENSUAL PROCEDURES
7. CONCLUSION
THOUGHTS ON THE PAST TWO DECADES OF HUNGARIAN CRIMINAL PROCEDURE (REMARKS TO KÁROLY BÁRD'S PRESENTATION)
1. EXAGGERATED NEEDS AND REAL EXPECTATIONS WITH REGARD TO THE RIGHT OF DEFENCE
2. CHANGES IN THE SYSTEM OF LEGAL REMEDIES
CHANGES IN THE SOCIAL FUNCTION OF CRIMINAL LAW IN HUNGARY FROM 1985 TO 2005
1. ON THE SOCIAL FUNCTION OF CRIMINAL LAW
2. THE ACTUAL SOCIAL FUNCTION OF CRIMINAL LAW IN THE SOCIALISM OF THE 1980S
3. THE EFFECT OF THE CHANGES IN VALUES AS A RESULT OF THE TRANSITION ON CRIMINAL LAW
4. THE WAYS OF DOING APPLICATION OF THE ACTUAL SOCIAL FUNCTION OF CRIMINAL LAW IN HUNGARIAN CRIMINAL JUSTICE POLICY
5. CLOSING REMARK
PRINCIPLES OF CRIMINAL POLICY IN HUNGARY
1. THE NATURE OF CRIMINAL POLICY DECISIONS
2. WHENCE DOES CRIMINAL POLICY ORIGINATE?
3. IS THE AMERICAN APPROACH TOWARDS FIGHTING CRIME A REALISTIC ALTERNATIVE FOR US?
4. THE ASYMMETRIC HUNGARIAN CRIMINAL LAW
5. THE EFFECTS AND FUTURE OF CRIME POLICY
6. THE EFFECT OF THE EUROPEAN UNION ON HUNGARIAN CRIMINAL POLICY
7. CONCLUDING THOUGHTS
TRANSITIONAL JUSTICE
1. ANNULMENT LAWS
2. VOLLEY TRIALS
3. VICTIM REPARATION
4. LUSTRATION LAWS
5. CONCLUSIONS
THE BITTER PILLS OF POLITICAL TRANSITION
IV Private Law
TRANSFORMATION OF HUNGARIAN CIVIL LAW (1985-2005)
1. GENERAL REMARKS ON CHANGES
2. CHANGES OF CIVIL LAW AND ECONOMIC FACTORS
2. CHANGES IN CIVIL LAW AND SOCIAL FACTORS
4. CHANGES IN CIVIL LAW AND POLITICAL FACTORS
RE-CODIFICATION OF THE CIVIL CODE - CONCEPTION FOR DRAFTING THE NEW CIVIL CODE
1. VOLUME ONE ON PERSONS
2. VOLUME TWO ON FAMILY LAW
3. VOLUME THREE ON THE LAW OF THINGS
4. VOLUME FOUR ON THE LAW OF OBLIGATIONS
5. VOLUME FIVE ON LAW OF SUCCESSION
TRANSFORMATION OF THE ROLE OF LAW IN THE ECONOMY (THE PROGRESS OF THE HUNGARIAN BUSINESS LAW BETWEEN 1988-2005)
1. ANTECEDENTS
2. THE PROGRESS IN DEVELOPMENT OF BUSINESS LAW CONCERNING THE CHANGE OF THE SOCIALIST SYSTEM (1988-2005)
3. CONCLUSIONS
THE TRANSFORMATION OF THE ROLE OF LAW IN THE ECONOMY (1988-2005)
1. BUSINESS PARTNERSHIP - COMPANY BUSINESS PARTNERSHIP
2. BANKRUPTCY LAW
3. PROCEDURAL PROBLEMS
DEVELOPMENT OF HUNGARIAN CONSUMER LAW 1985-2005
1. THE SITUATION OF CONSUMER LAW IN THE HUNGARIAN LEGAL SYSTEM
2. DEVELOPMENT OF CONSUMER LAW IN HUNGARY
3. DEVELOPMENT OF CONSUMER PROTECTION POLICY
4. THE SITUATION OF CONSUMER PROTECTION INTEREST REPRESENTATIVES IN CONSUMER PROTECTION
5. DEVELOPMENT PERSPECTIVES OF CONSUMER PROTECTION LAW - PRESUMABLE EFFECTS OF THE RE-CODIFICATION OF THE CIVIL CODE
CONSUMER PROTECTION AND PRIVATE LAW
CHANGES IN THE MODEL OF HUNGARIAN CIVIL PROCEDURAL LAW
1. ANTECEDENTS
2. SOCIALIST CIVIL PROCEDURE
3. TRANSFORMATION OF HUNGARIAN CIVIL PROCEDURAL LAW AFTER THE DEMOCRATIC TRANSFORMATION
EFFECT OF THE EUROPEAN COMMUNITY LAW ON THE HUNGARIAN CIVIL PROCEDURE
1. REVIEW OF THE RELEVANT LEGISLATIVE PROCEDURES OF THE COMMUNITIES
2. TASKS OF HUNGARIAN LEGISLATION
3. OPPORTUNITY AND OBLIGATION FOR THE HUNGARIAN JURISDICTION: THE PRELIMINARY RULING
V Other Legal Areas
TRANSFORMATION OF HUNGARIAN AGRICULTURAL LAW (1985/1990-2005)
1. CHALLENGES AND LIMITS OF THE ANALYSIS
2. THE FUNCTION AND HISTORIC LEGACY OF STATE SOCIALIST AGRICULTURAL LAW
3. THE DEVELOPMENT OF AGRICULTURAL LAW AFTER AGRICULTURE WAS TRANSFORMED ACCORDING TO THE PRINCIPLES OF THE MARKET
4. THE TRANSFORMATION OF THE CONTENT OF AGRICULTURAL LAW
5. SYSTEM-SPECIFIC FEATURES OF AGRICULTURAL LAW
6. ACADEMIC EDUCATION OF AGRICULTURAL LAW
7. THE CONCEPT OF AGRICULTURAL LAW
COMMENT TO THE STUDY OF ENDRE TANKA
THE DEVELOPMENT OF SOCIAL LAW IN HUNGARY BETWEEN 1985-1990 AND 2005
1. THE STATUS OF SOCIAL LAW BEFORE AND AFTER SYSTEMIC CHANGE
2. CONSTITUTIONAL PROTECTION OF SOCIAL RIGHTS
3. SOCIAL INSURANCE
4. FAMILY BENEFITS
5. SOCIAL ASSISTANCE
6. SUMMARY
THE CONSTITUTIONAL FRAMEWORK OF SOCIAL RIGHTS DURING THE LAST 15 YEARS
BANKING LAW IN HUNGARY 1985-2005
1. A DECISION AND ITS HISTORICAL BACKGROUND: THE BANKING SYSTEM BETWEEN 1947 AND 1986
2. THE BANKING SYSTEM BETWEEN 1987 AND 1991: A CENTRAL BANK SUBORDINATED TO THE COUNCIL OF MINISTERS, A UNIVERSAL BANKING SYSTEM, SUPERVISION INTEGRATED INTO THE MINISTRY OF FINANCE
3. THE BANKING SYSTEM, 1991-1996: A SPECIALIZED BANKING SYSTEM, AN ALMOST AUTONOMOUS CENTRAL BANK, A DIFFERENTIATING FINANCIAL MARKET AND SYSTEM OF SUPERVISION
4. THE BANKING SYSTEM, 1997-2005: AUTONOMOUS CENTRAL BANK, UNIVERSAL BANKING SYSTEM, INTEGRATED SUPERVISION, ACCESSION TO THE EUROPEAN UNION
5. SUMMARY
SYSTEMIC CONSEQUENCES OF BANKING REGULATION
TWENTY YEARS OF HUNGARIAN ENVIRONMENTAL LAW
1. CHARACTERISTICS OF ENVIRONMENTAL LAW IN THE 1980S
2. THE 1990S
3. THE NEW MILLENNIUM AND THE REQUIREMENTS OF EU MEMBERSHIP - PRESENT AND FUTURE
4. THE STRUCTURE OF ENVIRONMENTAL ADMINISTRATION
5. CONCLUDING REMARKS
CONTRIBUTIONS TO THE REVIEW OF THE LAST ONE AND A HALF DECADES OF ENVIRONMENTAL LAW
1. INTRODUCTION - DYNAMIC AND 'UNLIMITED' DEVELOPMENT
2. UNRECOGNIZED IMPORTANCE OF THE PROCEDURAL LEGAL INSTITUTION - ORDERING CO-OPERATION
3. 'THE STATE MONOPOLY OF THE ENVIRONMENTAL PROTECTION'
4. CERTAIN CONTRADICTIONS IN THE TRANSPOSITION OF EC LAWS
5. FINAL REFLECTIONS
VI Relationship to International and European Law
THE EFFECT OF THE CHANGE OF POLITICAL REGIME ON THE HUNGARIAN DOCTRINE OF INTERNATIONAL LAW
1. THE HERITAGE
2. THE BEGINNING OF THE CRITICAL APPROACH TO HERITAGE: ONE OR TWO YEARS PRIOR TO THE CHANGE OF REGIME
3. THE EVIDENCE OF THE CHANGE OF REGIME IN THE CURRENT HUNGARIAN DOCTRINE OF INTERNATIONAL LAW
4. THE EFFECT OF THE EUROPEAN INTEGRATION ON THE HUNGARIAN DOCTRINE OF INTERNATIONAL LAW
5. CONCLUSION
THE CHANGING FACE OF INTERNATIONAL LAW IN HUNGARY
1. THE SOCIALIST CONCEPT OF INTERNATIONAL LAW
RELATIONSHIP OF INTERNATIONAL LAW AND THE HUNGARIAN LEGAL SYSTEM 1985-2005
1. RELATIONSHIP OF INTERNATIONAL LAW AND HUNGARIAN LAW BEFORE THE CHANGE OF REGIME (1989)
2. ARTICLE 7 (1) OF THE CONSTITUTION
3. INTERPRETATION OF THE CONSTITUTIONAL COURT AND ITS CRITICS
4. CODIFICATION ATTEMPTS AIMING AT RESHAPING THE RELATIONSHIP OF INTERNATIONAL LAW AND HUNGARIAN LAW
5. FINAL THOUGHTS
COMMENTS ON 'THE RELATIONSHIP OF INTERNATIONAL LAW AND THE HUNGARIAN LEGAL SYSTEM 1985-2005' BY TAMÁS MOLNÁR
THE POSITION OF THE HUNGARIAN CONSTITUTION AFTER ACCESSION TO THE EUROPEAN UNION
1. INTRODUCTION
2. THE CONDITIONS OF ACCESSION TO THE EU
3. THE LEGAL CONSEQUENCES OF ACCESSION TO THE EU
4. ARE THE CONSEQUENCES OF ACCESSION TO THE EU COMPATIBLE WITH THE HUNGARIAN CONSTITUTION?
5. OTHER EFFECTS OF ACCESSION TO THE EU ON THE HUNGARIAN LEGAL SYSTEM
6. CONCLUSIONS
THE POSITION OF THE HUNGARIAN CONSTITUTION AFTER THE ACCESSION TO THE EUROPEAN UNION
1. THE GUARANTEES OF THE CONSTITUTION AND COMMUNITY LAW
2. IS A PIECE OF HUNGARIAN LEGISLATION INCOMPATIBLE WITH EC LAW ALSO UNCONSTITUTIONAL?
THE CONCEPT OF NATION IN THE HUNGARIAN LEGAL ORDER 1985-2005 WITH A SPECIAL FOCUS ON HUNGARIANS IN NEIGHBOURING STATES
1. THE INTERNAL SPHERE: THE NATIONAL SYMBOLS AND THE PRESIDENT
2. THE INTERNAL SPHERE: MINORITIES IN HUNGARY
3. THE EXTERNAL SPHERE: HUNGARIAN MINORITIES IN NEIGHBOURING STATES
4. THE HUNGARIAN TWO-FOLD CONCEPT OF NATION AND COMMUNITY LAW
5. CONCLUSION
THE CONCEPT OF NATION IN THE HUNGARIAN CONSTITUTIONAL SYSTEM AT THE BEGINNING OF THE 21ST CENTURY
THE CULTURAL POLICY OF THE EUROPEAN COMMUNITY - A CRITICAL ASSESSMENT
CULTURAL POLITICS AND THE EUROPEAN UNION
VII Society, Politics, and Law
LEGITIMACY OF THE CONSTITUTION IN HUNGARY 1985-2005
1. EMPIRICAL LEGITIMATION DEFICIT AND ATTITUDES TOWARDS CONSTITUTION-MAKING
2. A MULTI-DIMENSIONAL APPROACH TO LEGITIMACY
3. THE HISTORICAL CONSTITUTION
4. SUMMARY
COMMENTS ON ANDRÁS KÖRÖSÉNYI'S 'LEGITIMACY OF THE CONSTITUTION IN HUNGARY 1985-2005'
1. IS THE MULTI-DIMENSIONAL CONCEPTION OF LEGITIMACY COHERENT
2. THE PROBLEM OF JUDICIAL REVIEW
3. ON THE CAUSES OF DISCONTENT: AN ALTERNATIVE EXPLANATION
ON THE DANGEROUS LIAISON BETWEEN POLITICS AND LAW
1. RE-INVENTING LEGAL PLURALITY
2. THE CAUSES OF THE GROWTH OF JUDICIAL POWER
3. THE POLITICAL NATURE OF THE JUDICIAL REFORM (WHY POLITICS HAVE TO CARE ABOUT JUDICIAL POWER)
ON THE IMPORTANCE OF NON-LEGAL CUSTOMS
CHANGE OF LEGAL THOUGHT IN HUNGARY 1990-2005
HAS LEGAL THOUGHT REALLY CHANGED? REMARKS ON MIKLÓS SZABÓ'S CONTRIBUTION ON THE CHANGE OF LEGAL THOUGHT IN HUNGARY 1990-2005
SURVIVING SOCIALIST LEGAL CONCEPTS AND METHODS
1. THE METHODS OF INTERPRETATION
2. HUMAN RIGHTS AND CITIZENS' RIGHTS
3. THE SUPREME BODY OF STATE POWER
4. STATE ADMINISTRATION AS ADMINISTRATION
5. CIVIL LAW AND FAMILY LAW
6. IN LIEU OF A CONCLUSION: THESES
IMPACT OF EUROPEAN LAW IN THE NATIONAL ARENA: REPLY TO ANDRÁS JAKAB'S INTERVENTION
1. SUPREME BODY OF STATE POWER
2. STATE ADMINISTRATION
3. METHODS OF INTERPRETATION
4. CONCLUSION
DEVELOPMENT OF THEORETICAL LEGAL THOUGHT IN HUNGARY AT THE TURN OF THE MILLENNIUM
CONTINUITY AND DISCONTINUITY IN HUNGARIAN LEGAL PHILOSOPHY
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The Transformation of the Hungarian Legal Order 1985-2005

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