Revista Jurídica Portucalense

The plurality of blocks in a condominium and the condominium owners' diligence towards the builder

Gil MOREIRA DOS SANTOS — Tue, 14 Jan 2025 00:00:00 +0000

On the subject of a judgment - Pº 24620/15.1T9PRT- P1 of the 5th Chamber of the Court of Appeal of Porto, dated 08.04.2024 - in which the institutions of the forfeiture of the notice of defects in a construction contract relating to a condominium of four blocks, to be built in several phases, were discussed.

A realidade simbólica no caso Makyouf e Damyanovic c. Bósnia e Herzegovina:

Jeovet Baca Virginia — Tue, 08 Apr 2025 00:00:00 +0100

A minha reflexão terá como base o voto apresentado pelo Juiz Paulo Pinto de Albuquerque com a adesão do Juiz Vučinić no caso de Maktouf e Damianović v. Bósnia e Herzegovina, onde abordo os seguintes pontos: 1- O problema da discriminação de criminosos de etnias minoritárias durante as guerras - Um problema de justiça e moralidade na realidade simbólica; 2 – Análise da realidade da Bósnia e Herzegovina em tempos de paz – O Restabelecimento da Justiça; 3 – Uma apreciação sobre a decisão do Tribunal Europeu dos Direitos Humanos no caso de Marktouf e Damianović - Justiça aos criminosos de guerra em tempos de paz; 4 – Uma reflexão sobre a intervenção do Juiz Paulo Pinto de Albuquerque com a adesão do Juiz Vučinić - A moralidade nos direitos humanos.

O método usado para esta análise é dedutivo, com base nas análises das doutrinas, artigos e diversos livros sobre a filosofia do direito e o problema da ética dos juízes na aplicação das leis.

Analysing the effectiveness of migrants’ protection and integration through the applicability of the European Union’s directive on long-term residents

Ana Filipa NEVES, Carlos NOLASCO — Tue, 14 Jan 2025 00:00:00 +0000

In 2003, the EU approved a new regime of long-term residency of third-country nationals who, after having lived in a Member State for a minimum of five years, should enjoy equal rights as those of Member States citizens in a wide range of economic and social matters. Only in 2011, was this specific regime also applied to refugees. Two decades after its entry into force, it was time to analyse the impact of this legal avenue in the lives of long-term migrants living in Portugal. The analysis conducted systematised how this EU legislation was transposed into the Portuguese migration and asylum legal norms and how it became effective in ensuring migrants’ well-being in Portugal. To this end, the chosen qualitative methodology included the analysis of legal and other relevant texts and, also, the organisation and conduction of semi-structured interviews and focus groups with migrants who were long-term residents in Portugal, in 2021. Drawing on the participants’ opinions, the present paper aims to address the advantages and pitfalls of long-term residence status in order to ameliorate the first and surpass the latter, not losing sight of the end goal of ensuring migrants’ rights to protection and inclusion.

Harmonisation of contract law in the EU: Analysis of the process and its impact on the legal system of the Member States

Viktoriia ANATIICHUK, Iryna BANASEVYCH, Ruslana HEINTS, Uliana GRYSHKO — Tue, 21 Jan 2025 00:00:00 +0000

The problem of differences between national legal systems in the global context necessitates the creation of new methods of harmonisation and unification of legislation, especially in light of the accelerating globalisation processes. In the context of global and European integration, it is becoming increasingly important to promote the diversity of jurisdictions and provide answers to the main questions regarding the development of uniform contract law to preserve the role of law as a regulator of social relations at the supranational level. The following methods were used in the study: legal modelling, inductive, deductive, dialectical, formal-logical, and synergistic, as well as methods of analysis and synthesis. The purpose of the article is to analyse the process of harmonisation of contract law in the European Union and to determine its impact on the legal system of the Member States.

The attachment of a vehicle with retention of title in favour of the creditor

Maria José Magalhães SILVA — Fri, 24 Jan 2025 00:00:00 +0000

In the context of the motor trade, the nature and function of retention of title has given rise to lively debate and dissenting decisions in case law and doctrine. The most debated points relate, on the one hand, to the possibility of the retention of title being agreed in favour of a third party, usually the funding entity, either ab initio or as a result of the transfer of the legal position of the seller, and, on the other hand, to the nomination to seizure of the vehicle object of the legal transaction in which the retention of title has been stipulated. In this paper, we will approach the subject from two premises:

Reservation of ownership stipulated in a vehicle sale contract in favour of the seller, who is simultaneously the funding entity, though also referring to the possibility of transferring the position of the seller to the funding entity; and
The option to enforce the contract by attachment of the vehicle itself or by attachment of the debtor's acquisition expectation.

The text develops to the issue of registering the attachment (whether of the vehicle or of the acquisition expectation), addressing different possibilities for the decision of the Registrar and for the nature of the registration to be made, with reference also to IRN doctrine on the matter.

The exemptions on the income obtained by Portuguese local governments

Daniel Taborda, Nuno Lemos Jorge — Mon, 03 Mar 2025 00:00:00 +0000

Based on legal decisions relating to the tax exemption of a local government association in particular, the paper seeks to define the perimeter of the tax exemption, describe its main characteristics and analyze the legal nature of the local government associations in general. The purpose of the paper is to contribute to the improvement of the current income taxation of the local government associations, avoiding future legal disputes.

Unified Patent Court: New paths for patent protection in Europe

Eugénio LUCAS — Tue, 22 Apr 2025 00:00:00 +0100

The recent entry into operation of the Unified Patent Court finally responds to the need for effective judicial control of the European patent and the European patent with unitary effect. This article presents the path leading up to the creation of the Unified Patent Court, as well as its structure and competences. Recent cases ruled by the Unified Patent Court are also analyzed, particularly regarding patent validation and revocation, forum shopping, interpretation of the patent claim and consequent assessment of patentability. Given the existence of some common aspects between the “United States Court of Appeals for the Federal Circuit” and the Unified Patent Court, some legal issues common to these two patent courts will also be analyzed.

The Role of Big Data Analytics in the Investigation of Corruption Offences

Mon, 07 Apr 2025 00:00:00 +0100

The article deals with the integration of big data (BD) analytics in the investigation of corruption offenses and assesses its potential to detect complex criminal schemes. The use of large data volumes, such as financial transactions, communication patterns, and public records, significantly improves the effectiveness of investigations. Data analysis makes it possible to reveal hidden connections and anomalies, which provides new tools for the fight against corruption. The article combines legal analysis with technological innovation and explores the legal and ethical issues that arise when using such technologies. It focuses on how BD can be integrated into the legal process within existing legal systems. The academic novelty is the study of the changes that BD analytics bring to the corruption investigation practices. The study also identifies data protection and compliance challenges that require the creation of an appropriate legal framework and the development of specialized skills.

Relevant criminal culpability action and reflex actions

Joaquim RAMALHO — Mon, 07 Apr 2025 00:00:00 +0100

The relevant criminal culpability action corresponds to the first element of valuation in the context of imputing the crime to the agent. In Criminal Law, not all human behaviors are relevant to criminal imputation, even in situations of violation of norms protected by the legal order, and it is necessary, in addition to the violation of an objective legal duty, to establish the subjective link between the agent and the act carried out, of conscious actions that can be controlled by the will. In this way, the main goal of this investigation aims to bring the contributions from the areas of neuroscience, to clarify the automatic and innate mechanisms of human behavior carried out in reflex actions and their consequent exclusion from criminal attribution.

Armed activities on the territory of the Congo before the Arusha Court or the delicate question of Rwanda’s international responsibility in the armed conflict in the Democratic Republic of Congo

Catherine Maia, Aklesso Jacques AKPE — Tue, 08 Apr 2025 00:00:00 +0100

On 21 August 2023, the DRC filed an application against Rwanda with the African Court on Human and Peoples’ Rights, marking the first inter-State case before the court. The DRC accuses Rwanda of massive violations of human rights and international humanitarian law, including by supporting the M23 rebel group. This conflict, rooted in ethnic and geopolitical tensions, is part of a long series of disputes involving the two states. In the absence of a binding decision by the International Court of Justice on this issue, the African Court will have to rule on Rwanda’s responsibility and its compliance with the prohibition on the use of force. Its judgment could set a precedent and redefine regional dynamics in terms of peace and security.

Building an International Regulatory and Legal Framework For Green Digital Finance

Wahid WINARTO, PARWOTO — Wed, 30 Apr 2025 00:00:00 +0100

This paper is to discuss the evolution of the concept of green digital finance and its relationship to achieving sustainable development goals. It aims to analyze the existing regulatory and policy framework related to green digital finance and explore legal and regulatory considerations for optimizing digitalization in supporting green finance. This study aims to investigate the existing regulatory framework governing green digital finance and analyze the legal challenges that arise as the industry develops. This study qualitatively examines the development and current status of green digital finance, emphasizing its alignment with sustainable development goals (SDGs). It explores the regulatory and policy frameworks shaping green digital finance, highlighting both the opportunities and challenges introduced by technologies like blockchain, AI, big data, and IoT. The analysis also investigates the efforts of regulators and financial institutions to adapt regulations, offering insights into legal and policy measures required to leverage digital innovations for advancing green finance. Sustainable development (SDGs) through technological innovation in the financial sector provided by technologies such as blockchain, AI, machine learning, big data, and IoT in enhancing green finance initiatives. While these technologies also present challenges related to data security, consumer protection, and regulatory adaptation

The hierarchical appeal in the Republican National Guard: between what is necessary and unconstitutionality

Adélio Geraldino do Rosário CÂMARA, José Noronha Rodrigues — Wed, 21 May 2025 00:00:00 +0100

For several decades, the Military Discipline Regulations were applicable to elements of the Republican National Guard, which expressed a clear subordination of the police characteristics of this security force, to the military condition inherited from the Army. This scenario underwent significant changes in 1999, when the Discipline Regulation of the Republican National Guard was approved, which, today, in article 124, maintained the hierarchical appeal as necessary and without suspensive effects. However, this legislative solution was challenged several times, including in the Constitutional Court, and ended up being in force without undergoing any changes, for approximately 15 years, until between 2014 and 2015, a large part of the applicable legal framework benefited from the understanding that had been coming for several years being defended by a large part of administrative activists, namely questioning the legality of the necessary hierarchical appeal as obstacles to the fundamental right of access to judicial access. Among the amended legal diplomas is precisely the Discipline Regulations of the National Republican Guard, which, it seems, in certain situations, will not have completely eliminated this necessary nature of hierarchical resources. Therefore, given the difficulty in combining the nature of this challenge with constitutional principles, the objective of this work is to clarify it objectively.

The role of forensic expertise in the investigation of crimes related to forgery of digital documents and cryptocurrencies

Wed, 21 May 2025 00:00:00 +0100

With the advancement of digital technologies and the proliferation of cryptocurrency transactions, new types of crimes have emerged, including the forgery of digital documents and illicit activities involving cryptocurrencies. Thus, the role of forensic expertise has become increasingly significant, as it enables the identification of forged documents, the analysis of cryptocurrency transactions, and the detection of criminal schemes. The purpose of the study is to establish the importance of forensic expertise in investigating crimes and criminal offences related to digital document forgery and cryptocurrencies in Ukraine and globally. The paper involved a comparative analysis of existing legal provisions, which revealed problematic issues, paths, and forms for improving current legislation concerning the modernisation of legal provisions related to the forensic characteristics of documents. The study also identified factors influencing the regulation of forensic expertise in criminal proceedings and current challenges in this field. The study determines the most substantial types of expertise during the investigation of criminal offences involving forged digital documents and cryptocurrencies: forensic economic expertise (accounting and tax records; financial and economic activities; financial and credit operations), forensic (handwriting analysis, technical and forensic document examination), and computer-technical expertise. The importance of providing high-quality comparative samples for identifying individuals and devices used in document forgery is emphasised. It is noted that addressing tasks in pre-trial investigations concerning forged documents often requires complex examinations by multiple experts and the provision of a joint report. The study proposes procedural enshrinement of the status of complex, repeated, additional, and commission-based expert examinations conducted by forensic experts. The study formulates and justifies recommendations that may improve the legal regulation of forensic expertise in Ukraine.

Tax audit regarding the SIFIDE tax benefit: CAAD arbitral jurisprudence analysis

Ana Regina RIBEIRO, Ana DINIS, Sara SERRA — Wed, 21 May 2025 00:00:00 +0100

The Tax and Customs Authority (AT) is responsible for ensuring settlement and collection, as well as exercising the tax inspection function, with the aim of combating fraud and tax evasion. The “System of Fiscal Incentives for Research and Development” (SIFIDE II) is a measure that allows the deduction of the amount corresponding to research and development (R&D) expenses from the amount of corporate income tax collection (IRC). with increases in investment in R&D, applications for this tax benefit and tax credits requested have increased, as well as conflicts between taxpayers and AT. This study aims to understand the role of the AT as a controlling entity, before the arbitration jurisdiction, analyzing the reasons for litigation and verifying the trend of the arbitration court's decisions in resolving SIFIDE II cases, using as an investigation method, the documental content analysis. The analysis carried out concluded that the tendency is for the superintendent to win in most decisions in SIFIDE II cases, and that, according to the jurisdiction of the Administrative Arbitration Center (CAAD), despite the AT carrying out control and monitoring associated and rigorously, not always the same detection of irregularities, and when detected, they are not always effective irregularities, since our results from the analyzed analyzes end up reversing the corrections made.

Reflections on the reinvestment of gains from real estate capital gains and their taxation under IRS: constitutional (dis)conformities with the requirements of Decree-Law. 57/2024, of 10 September and Law 56/2023, of 6 October

Luís Manuel Pica — Wed, 04 Jun 2025 00:00:00 +0100

The article analyses the regime for the reinvestment of real estate capital gains under IRS, with a special focus on the changes introduced by Decree-Law 57/2024, of 10 September, and its constitutional compliance. The new requirement that the property sold must have been formally allocated as a tax residence in the 12 months prior to its sale raises questions about legal certainty and the protection of taxpayers' trust. The study points out that the taxation of real estate capital gains is anchored in the principle of ability to pay, requiring that only income realised be taxed. However, the new rule may constitute inauthentic retroactivity, as it affects legal situations constituted under the previous legal regime and may frustrate the legitimate expectations of taxpayers who were counting on the exclusion from taxation of these manifestations of wealth.

Classified Buildings and the problem of IMI exemptions

Manuel Augusto Correia, Ana Dinis — Wed, 04 Jun 2025 00:00:00 +0100

The complex validity of the Municipal Property Tax exemption applicable to the Portuguese real estate cultural heritage warrants a thematic approach, focused on the legislative framework and its confluence with the accessibility to that tax benefit, by the property owners. Concomitantly, the vast administrative and jurisprudential disputes arising from the legal provision's technical and interpretative complexity call for a concise paradigmatic study, historically outlined, of the intricacies of the exemption system, which is undertaken here. In the pursuit of a comprehensive understanding of the applicable legal provisions, it is argued that, despite the legislative intent to facilitate the access to the exemption, ambiguities and challenges persist, and it is also emphasized the ongoing need for greater clarity and procedural harmonization.