Journal articles on the topic 'Legality litigation'
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1
Eliana, Eliana, Aria Dimas Harapan, Reny Suryani, and Sri Endah Indriawati. "The legality of Arable Land Minimizes Disputes." Asian Journal of Social and Humanities 1, no. 11 (August 20, 2023): 907–17. http://dx.doi.org/10.59888/ajosh.v1i11.107.
Abstract:
Realizing the legality of ownership of arable land can be obtained by the community by carrying out land registration referring to the Regulation of the Minister of Agrarian Affairs dated February 9, 1999 Number 3 of 1999 concerning Delegation of Authority for Granting and Cancellation of Decisions on State Land Rights continued with the PMNA/Head. BPN Number 4 of 1998 jo. KMNA/Ka.BPN Number 6 of 1998 concerning Guidelines for Determining income in the Granting of State Land Rights. Settlement of disputes over the ownership of arable land in Bogor Regency can be carried out through litigation or outside of litigation and in the case of arable land disputes in Bogor it can be resolved through peace through mediation. It is suggested that the government should schedule counseling on the legality of land ownership to the public so that ordinary people understand the legality process so that the community's economic level is stable and even becomes strong.
2
Lestari, Reski, Wahyu Subakti, and Syed Agung Afandi. "STRATEGI ADVOKASI MELALUI PROSES NONLITIGASI DALAM RANGKA PEMBAHARUAN PROSES PERADILAN DI INDONESIA." JDP (JURNAL DINAMIKA PEMERINTAHAN) 6, no. 1 (January 18, 2023): 31–42. http://dx.doi.org/10.36341/jdp.v6i1.3084.
Abstract:
This study aims to explain the advocacy strategy through the non-litigation process in the context of reforming the judicial process in Indonesia. Mediation in court is an institution and empowerment of peace (court connected mediation) with a philosophical foundation that is Pancasila which is the basis of the Indonesian state, especially the fourth precept "Popularity led by Wisdom of Wisdom in deliberation/representation". In resolving disputes, there are several dispute resolution mechanisms, namely litigation, non-litigation, and advocacy. The method used in this research is literature study, with the type of qualitative descriptive research. The results explain that alternative efforts and strategies for resolving disputes with the Non-Litigation route can achieve a peace in accordance with the wishes of both parties through Mediation, Advocacy and negotiation. In its application there are two types of obstacles in non-litigation efforts to resolve land grabbing disputes, because mediation is not clearly regulated in Law no. 30 of 1999 concerning Artibrasion and Alternative Dispute Resolution. And the non-litigation efforts are legally less certain because their legality is also not explicitly regulated in Law no. 30 of 1999.
3
Banjaransari, Ayu Putri Rainah Petung. "Juridical Analysis of Inhibiting Factors in the Implementation of E-Litigation by the Community in the Legal Framework of the Civil Procedure Court." Melayunesia Law 5, no. 2 (December 30, 2021): 231. http://dx.doi.org/10.30652/ml.v5i2.7830.
Abstract:
E-litigation has begun to be held in civil justice institutions, but peopleare still unfamiliar with the application. Many parties question thelegality of face-to-face trials electronically compared to the legality offace-to-face meetings. In addition, there are factors that hinder theimplementation of the application from the community side. This paperuses a normative legal research method with a legal and conceptualapproach. The finding in this paper is a juridical analysis of theimplementation of e-litigation related to the reasons people are reluctantto use it. This paper also proposes solutions to these causes for therealization of a good e-litigation implementation.
4
Gledhill, Kris. "The Consequences of Acting Unlawfully." International Journal of Mental Health and Capacity Law 1, no. 10 (September 4, 2014): 35. http://dx.doi.org/10.19164/ijmhcl.v1i10.144.
Abstract:
<p align="LEFT">The Mental Health Act 1983 provides for detention and also for treatment which would otherwise be an assault. As such, it allows for interference with the fundamental rights to liberty and to self-determination. Particularly as it does so in the context of a branch of medicine which is often highly subjective, it is hardly surprising that litigation is occasionally resorted to by those affected who wish to challenge the legality of what is occurring to them.</p><p align="LEFT">The framework for this litigation has developed, spurred on in particular by the growth of public law and human rights law. As a result, mental health professionals have to be familiar not just with the court-machinery which is central to the Mental Health Act 1983 (which provides for the Mental Health Review Tribunal to determine the legality of the ongoing detention of a patient, and refers the issue of the displacement of a nearest relative to the county court) but also with the courts which deal with questions of public law (in particular the Administrative Court) and the civil litigation courts.</p>
5
Gao, Qi, and Sean Whittaker. "Standing to Sue Beyond Individual Rights: Who Should Be Eligible to Bring Environmental Public Interest Litigation in China?" Transnational Environmental Law 8, no. 02 (May 27, 2019): 327–47. http://dx.doi.org/10.1017/s2047102519000141.
Abstract:
AbstractFormally adopted in 2012, environmental public interest litigation in China has expanded standing beyond individual rights by granting administrative authorities, procuratorates, and non-governmental organizations (NGOs) the ability to initiate environmental public interest litigation (PIL). However, the aims of enhancing the enforcement of environmental regulation and the development of the ‘objective legality’ model through civil society have not been met. This is as a result of administrative authorities and procuratorates being granted standing, which inhibits NGOs from initiating their own PIL in line with the aims of the ‘objective legality’ model. In order to promote participation by civil society and its actors in environmental law enforcement, NGOs should be granted preferential standing in environmental PIL. To this end, the current requirements for NGOs to be granted standing should be relaxed, and the standing granted to administrative authorities and procuratorates should be limited or removed.
6
Radovanov, Aleksandar. "Extraordinary legal remedies in litigation de lege ferenda." Glasnik Advokatske komore Vojvodine 75, no. 9-10 (2003): 131–36. http://dx.doi.org/10.5937/gakv0304131r.
Abstract:
The author in his work presents current solutions in the Legal Proceedings Law pertaining to the issue of extraordinary legal remedies. He points out the weaknesses and obsoleteness of certain legal solutions and renders concrete proposals to amend these provisions, all with the goal of faster and more efficient case solving in legal proceedings. Inspection and repeat procedures should undergo considerable changes, and request to protect legality submitted by the state i.e. public attorney should be completely omitted as remnant of the past.
7
Xiao, Shiling. "State-centric proportionality analysis in Chinese administrative litigation." International Journal of Constitutional Law 21, no. 2 (April 1, 2023): 461–87. http://dx.doi.org/10.1093/icon/moad051.
Abstract:
Abstract This article examines the application of proportionality in Chinese administrative litigation over the last two decades and argues that courts in administrative litigation that serve the party-state and tend to uphold state/collective interest have altered proportionality to be state-centric. It finds that the courts invoked proportionality in a negligible portion of all administrative litigation judgments and had inadequate emphases on protecting individual rights. Proportionality has not appreciably assisted the courts in enhancing their oversight of governmental power and protection of individual rights. This article suggests that this is attributable to the restricted function of administrative litigation in China’s party-state governance structure and owing to the country’s long-held belief that public interest takes precedence over individual rights. Administrative litigation, which China’s ruling party employs to resolve principal–agent issues, is seriously constrained. The courts are expected to review the formal legality of executive actions, but not their substance. Informed by the Chinese human rights belief, which favors collectivism over individualism, the courts are skewed toward public interest in the balancing analysis when applying proportionality.
8
Safstrom, Jennifer. "Thirteenth Amendment Litigation in the Immigration Detention Context." Michigan Journal of Race & Law, no. 26.1 (2020): 205. http://dx.doi.org/10.36643/mjrl.26.1.thirteenth.
Abstract:
This Article analyzes how the Thirteenth Amendment has been used to prevent forced labor practices in immigration detention. The Article assesses the effectiveness of Thirteenth Amendment litigation by dissecting cases where detainees have challenged the legality of labor requirements under the Trafficking Victims Protection Act. Given the expansion in immigration detention, the increasing privatization of detention, and the significant human rights implications of this issue, the arguments advanced in this Article are not only currently relevant but have the potential to shape ongoing dialogue on this subject.
9
Winata, Muhammad, and Zaka Aditya. "Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution Based on Constitutional Interpretation." Brawijaya Law Journal 6, no. 2 (October 31, 2019): 170–88. http://dx.doi.org/10.21776/ub.blj.2019.006.02.04.
10
Frenyo, Edit. "Unsafe from Any Angle: Vulnerability-Generation on the US–Canada Border." Laws 11, no. 3 (May 27, 2022): 44. http://dx.doi.org/10.3390/laws11030044.
Abstract:
This article provides a review of the functioning and legality of the Safe Third Country Agreement between Canada and the United States, placing it in the broader context of systemic factors that generate and exacerbate the vulnerability of protection seekers. It offers a critical evaluation of what the legal challenges against the STCA reveal about the promises and limitations of safe-country-related litigation and the future of the Agreement.
11
Park, Hyun Jung. "Judicial Control of Authoritative Administrative Investigations." Korean Administrative Law Association 25 (September 30, 2023): 337–75. http://dx.doi.org/10.59826/kdps.2023.25.337.
Abstract:
The judicial control of administrative investigations can be classified into two categories: the subject of control can be either ① the decision to conduct an investigation or ② the investigation as an execution of the said decision. Type of litigation can also differ accordingly: one can either file for an appeal litigation and a temporary suspension of execution against the administrative decision to conduct an investigation and argue that the above decision is illegal; or dispute the legality of such decision or its execution in a criminal proceeding; or file an appeal litigation against an administrative sanction and contend the lawfulness of the decision for investigation or its execution upon which the above sanction is imposed. Judicial review of administrative investigations can also take place in appeal litigation or criminal proceedings when administrative sanctions or criminal penalties are imposed for refusing, disturbing, or evading investigations. This article first clarifies the concept and scope of ‘authoritative administrative investigations’ as the subject of judicial control. Next, it analyzes the possible means of judicial review (types of litigation) and the criteria for detecting the illegality of the decision for administrative investigation and its subsequent execution. It also identifies the limits of judicial control in its existing system. Lastly, this article examines the means, both through interpretation of current law and through legislation, to deny the admissibility of evidence collected from unlawfully conducted administrative investigation and to effectively guarantee the right to legal assistance and the right to remain silent in administrative investigations.
12
Brederode, Tim van, and Federica Casano. "EU Public Intervention in the Energy Market: A Stroke of Good Luck or Misfortune?" Intertax 51, Issue 11 (November 1, 2023): 754–70. http://dx.doi.org/10.54648/taxi2023068.
Abstract:
This contribution focuses on the legal analysis of Council Regulation (EU) 2022/1854 and on the implementation of the windfall profits tax in the Netherlands. The analysis takes into consideration constitutional and principle-based issues from levying this tax and potential litigation issues in the EU and in the Netherlands. The authors conclude by admitting the legality of the EU and Dutch measure. surplus profits, windfall profits tax, Dutch Mining Act, qualified majority voting, Article 122 TFEU, EU emergency law, EU tax policy
13
Bhargava, Abhimanyu, and Karthik Sivadas. "Case Comment: Bandhua Mukti Morcha V. Union of India (1984)." Journal of Legal Studies & Research 09, no. 02 (2023): 316–20. http://dx.doi.org/10.55662/jlsr.2023.9205.
Abstract:
The Bandhua Mukti Morcha (BMM) is a non-governmental organization established in 1981 to fight against bonded labor in India. In 1983, the BMM filed a public interest litigation (PIL) in the Supreme Court of India against the Union of India and the State Governments, challenging the legality of bonded labor and seeking its abolition. The case, Bandhua Mukti Morcha v. Union of India, was heard by a three-judge bench comprising Justice PN Bhagwati, Justice Ranganath Misra, and Justice D.A. Desai. The judgment was delivered on December 10, 1984[i].
14
Stoll, Cameron Semmes. "The Effects of Judicial Decisions and Patrimony Laws on the Price of Italian Antiquities." International Journal of Cultural Property 19, no. 1 (February 2012): 65–96. http://dx.doi.org/10.1017/s0940739112000069.
Abstract:
AbstractWhile practitioners of the legal and art and culture industries have traditionally believed their businesses to be independent of the other, the escalating battle over the repatriation of cultural property teaches otherwise. The antiquities market has flourished despite the increase in litigation surrounding some works and the number of works repatriated in recent years, making interdisciplinary study of the market more relevant and necessary than ever. This study establishes that the number of antiquities sold with legally- significant provenance information is steadily increasing as a result of the legal environment. Also, these objects are less risky and therefore sell for higher prices than works with no recorded history of ownership. Finally, evidence indicates that the occurrence of a legal event causes a slight, short drop in the market, followed by a significant rise in prices for the objects with reliable provenance information. In the end, the auction market for Italian antiquities is inexorably linked to activities that have ramifications for the legality of collecting these works.
15
Prek, Miro, and Silvère Lefèvre. "Competition litigation before the General Court: Quality if not quantity?" Common Market Law Review 53, Issue 1 (February 1, 2016): 65–90. http://dx.doi.org/10.54648/cola2016005.
Abstract:
This article explores the extent of the review exercised by the General Court of the European Union in the field of competition litigation and underlines its intensification in three directions: the assessment of the legality of the Commission’s decisions, the exercise of its unlimited jurisdiction in relation to fines and penalty payments, as well as the control of the Commission’s use of its investigatory powers. It is also observed that this more in-depth review takes place in the context of a drop in the number of applications for annulment lodged before the General Court in competition cases, due notably to the success of the commitments procedure introduced by Article 9 of Regulation 1/2003 as well as the limitations set by the case law of the Court of Justice on the review the General Court may exercise over the decisions resulting from this procedure.
16
Campagnolo, Yan. "Cabinet Immunity in Canada: The Legal Black Hole." McGill Law Journal 63, no. 2 (March 20, 2019): 315–74. http://dx.doi.org/10.7202/1058195ar.
Abstract:
Fifteen years ago, in Babcock v. Canada (A.G.), the Supreme Court of Canada held that section 39 of the Canada Evidence Act, which deprives judges of the power to inspect and order the production of Cabinet confidences in litigation, did not offend the rule of law and the provisions of the Constitution. The aim of this article is to revisit this controversial ruling and challenge the Supreme Court’s reasoning. The first part seeks to demonstrate that the Supreme Court adopted a very thin conception of the rule of law in its jurisprudence, a conception which is of limited use as a normative framework to assess the legality of statutory provisions. To that end, the author turns to the thicker theory of law as justification which insists upon the requirements of fairness, transparency, and accountability. Pursuant to the theory of law as justification, an executive decision to exclude relevant evidence in litigation must comply with two requirements: it must be made following a fair decision-making process; and it must be subject to meaningful judicial review. The second part seeks to demonstrate that section 39 does not comply with these requirements. The decision-making process established by Parliament under section 39 is procedurally unfair, in violation of paragraph 2(e) of the Canadian Bill of Rights, because: the identity of the final decision-maker—a minister or the Clerk of the Privy Council—gives rise to a reasonable apprehension of bias; and the decision-maker is not required to properly justify his or her decision to exclude relevant evidence. In addition, section 39 infringes the core, or inherent, jurisdiction and powers of provincial superior courts, in violation of section 96 of the Constitution Act, 1867, as it unduly limits their authority to: control the admissibility of evidence in litigation; and review the legality of executive action. As a result of these flaws, the author argues that section 39 is an unlawful privative clause, a form of legal black hole, which offends the rule of law and the provisions of the Constitution.
17
NINGRUM, HERLINA RATNA SAMBAWA. "ANALISIS HUKUM SISTEM PENYELESAIAN SENGKETA ATAS TANAH BERBASIS KEADILAN." Jurnal Pembaharuan Hukum 1, no. 2 (August 1, 2014): 219. http://dx.doi.org/10.26532/jph.v1i2.1481.
Abstract:
Law enforcement bureaucracy in resolving land disputes through litigation and non-litigation often found that in resolving the dispute is considered unjust. Disputes over land and agrarian resources in general seems to be a latent conflict. Of the various cases, rise and sharpening of land disputes not happen instantly, but to grow and develop from seeds that so long it has been deposited. This research method combines doctrinal research and socio-legal research-research, the basis of doctrinal research is research library that includes the primary legal materials, secondary law and tertiary legal materials. The results obtained 1) that the causes of the frequent occurrence of land disputes, among others; System of land administration, land ownership distribution is uneven. The legality of land ownership based solely on the formal proof (certificate), without regard to soil productivity2) Strategy Dispute Settlement System of Land-Based Justice: Strategic Administrative State, Judiciary, Legislative Strategy, Need to establish a separate judiciary in resolving disputes over land
18
Wilson, Joshua C. "Sustaining the State: Legal Consciousness and the Construction of Legality in Competing Abortion Activists' Narratives." Law & Social Inquiry 36, no. 02 (2011): 455–83. http://dx.doi.org/10.1111/j.1747-4469.2011.01238.x.
Abstract:
This article investigates how activists involved in both sides of the street politics of abortion simultaneously create, are constrained by, and use law when recounting a period of conflict that resulted in litigation. The activists‐turned‐litigants' construction of legality is explored by identifying and analyzing patterns of inclusion, absence, amendment, and type of law (i.e., state or extrastate) in and across the stories they tell. It is found that even though there are multiple reasons to expect all of these activists to resist or amend the state's conception of law, their narratives ultimately reproduce state law's legitimacy and power. The activists' stories also illustrate that legal consciousness is contextually and experientially based and is therefore subject to change. This finding has implications for legal mobilization as well as for the nature of legal consciousness.
19
Qehaja, Rrustem, and Armend Ahmeti. "The constitutional doubts about the request for protection of legality in civil litigation; case of Kosovo." Zbornik radova Pravnog fakulteta u Splitu 56, no. 3 (September 27, 2019): 593–607. http://dx.doi.org/10.31141/zrpfs.2019.56.133.593.
Abstract:
Članak je prilog raspravi o ustavnim dvojbama koje je pokrenula Presuda br. Br .: AGJ.193 / 12, od 12. travnja 2012., Ustavnog suda Republike Kosovo, o korištenju zahtjeva za zaštitu zakonitosti od strane državnog tužitelja u građanskim predmetima. Autori su pokušali staviti ovu presudu u komparativni odnos s presudom Europskog suda za ljudska prava, u slučaju poznatom kao Grozdanski protiv Bivše Jugoslavenske Republike Makedonije, prijava br. 21510/03, 31. svibnja 2007. Također se daju neka osnovna saznanja o značajkama zahtjeva za zaštitu zakonitosti kojeg je državni tužitelj podnio Vrhovnom sudu Republike Kosovo.
20
Vylegzhanina, Valerija V., Ilgiz A. Giniyatov, and Darya V. Parkhomenko. "ON THE ISSUE OF CREATING A THREE-DIMENSIONAL CADASTRE IN BUILT-UP AREAS." Interexpo GEO-Siberia 3, no. 2 (May 21, 2021): 44–52. http://dx.doi.org/10.33764/2618-981x-2021-3-2-44-52.
Abstract:
The article deals with the problems arising in the implementation of cadastral activities in the framework of judicial land management expertise. An assessment is given to the significance of this type of activity in the implementation by landowners of protection or restoration of violated rights in court. Examples of delaying the procedure for considering litigation due to an unprofessional approach to the performance of duties by cadastral engineers within the framework of a judicial land management expertise are given. The attributes of land management expertise as research are indicated. The necessity of monitoring the specified type of activity, which affects the professionalism of the cadastral work, which allows to objectively assess the essential and legally significant circumstances of the land management examination, has been substantiated. Reasonable proposals have been prepared aimed at the regulation and control of the specified type of cadastral activity, which will allow, in general, to streamline the specified type of cadastral activity, as well as the observance of the principle of legality and validity of judicial land disputes.
21
Guglielmi, Gilles J. "The Contentious Issues of Governance by Algorithms." Indiana Journal of Global Legal Studies 30, no. 1 (2023): 97–104. http://dx.doi.org/10.2979/gls.2023.a886164.
Abstract:
Abstract: The development of computerized tools that lead to decision-making processes which apply locally defined parameters poses many questions about democracy. These questions stem from our very conception of the state and its role, going beyond the boundaries of typical administrative law. According to a popular notion that permeates the practices of most executive branches in liberal political regimes, democratic concerns are now competing with managerial concerns. In order to analyze this idea, we must study the implementation of algorithms in administrative decision-making, underscoring both the changes to the characterization of administrative decisions and the questions raised about an administrative judicial review of litigation. To summarize a French administrative law judge's review so far, the judge began by assessing the legality of using algorithms in administrative procedures. Secondly, the judge reviewed the legality of making administrative decisions on the basis of an algorithm. Three issues now appear to be guiding the future of algorithm-based administrative decisions: (1) the security of legal transactions; (2) the compensation for harm or damage caused by the algorithms, and (3) the degree of in-depth review by the administrative judge.
22
Ventouratou, Anna. "Litigating Economic Sanctions." Law & Practice of International Courts and Tribunals 21, no. 3 (November 18, 2022): 593–640. http://dx.doi.org/10.1163/15718034-12341491.
Abstract:
Abstract This article focuses on the legality of unilateral economic sanctions that consist in the non-performance of obligations in the field of economic relations under relevant applicable treaties, and on the role that international adjudicative bodies can play in drawing a line between legal and illegal economic sanctions. It revisits the scarce relevant litigation before the ICJ and the WTO, pinpointing the grey areas in the law applicable to economic sanctions, on which further clarification is needed. The article argues that international adjudication can play a crucial role in such process of clarification, not only by elucidating the relevant legal regime, but also by triggering State reactions, which in turn can prompt legal developments in this area. Once the “rule-ness” of the relevant legal regime is firmly established, the need for court “supervision” will decrease, thus making it possible to envisage a fair system of international law enforcement without international courts.
23
Puneri, Atharyanshah, Ilhamiddin Ikramovich Nazarov, Moustapha Chora Ahmat, and Muhamad Ikhwan Arif. "The Litigation Process in Handling Murabahah Cases: A Comparative Study between Malaysia and Indonesia." International Journal of Management and Applied Research 6, no. 4 (November 1, 2019): 307–16. http://dx.doi.org/10.18646/2056.64.19-023.
Abstract:
In conventional banking, the validity of a contract is recognised through case law and the legal system of the country. Islamic banking contracts follow the same laws in addition to Shariah principles, which sometimes create legal uncertainty. Murabahah is an Islamic financial instrument which allows a buyer to purchase goods from a seller at a specified profit margin. In contemporary banking practice, Murabahah has been widely used by Islamic financial institutions as a financing contract. It is therefore important to scrutinise the legality and validity of Murabahah practised by Islamic financial institutions in contemporary settings because the existing substantive law on contracts and commerce may not fit well with the Shariah principles. This paper selected three Murabahah cases in Malaysia and Indonesia between 2013 and 2016 as points of comparison. Future research could compare and contrast legal cases over a wider time span.
24
Egorova, Olga. "Challenging the decision of the financial commissioner in court: distribution of the burden of proof." SHS Web of Conferences 141 (2022): 02004. http://dx.doi.org/10.1051/shsconf/202214102004.
Abstract:
This article discusses evidentiary activities with an insurance (financial) company contesting the decision of the financial commissioner, adopted by him at the request of a consumer of financial services at the pretrial stage of resolving an auto insurance conflict. Comparative legal analysis, system-structural analysis, and synthesis make up the methodological basis of the study. The relevance of the study, because of the legal nature of cases challenging the decision of the financial commissioner, reflecting a qualitatively “new” format of the mechanism for protecting the rights of this participant in auto insurance legal relations in the Russian Federation, is because proving in any civil case makes up the “core” of all judicial activities to resolve civil law conflict. The author evaluates implementing the legally established paradigm of adversarial litigation in the consideration and resolution of this category of cases, because the subject of judicial review is the decision of a public competent person, who, as a general rule, is charged with proving the legality and validity of his decision. The article explores the feasibility of implementing an “active” role of the court in implementing this mechanism for protecting the rights of insurance companies.
25
Caranta, Roberto. "Still Searching for a Reliable Script: Access to Scientific Knowledge in Environmental Litigation in Italy." European Energy and Environmental Law Review 27, Issue 4 (August 1, 2018): 158–68. http://dx.doi.org/10.54648/eelr2018019.
Abstract:
During the past 20 years, the rules on evidence and the approach to access to scientific knowledge by administrative courts have evolved towards a some- what closer look to the factual findings upon which administrative decisions are based. The practice of judicial review, including in environmental matters, however, is often rather deferent to the findings of the public decision makers. In practice, judicial review in environmental cases is therefore still very much focused on the reasons given, looking at their logical consistency more than at their soundness, and even less so at the soundness of the decision taken (unless of course the decision plainly conforms to or instead flies in the face of common sense). It is submitted that the more hands-off judgments are hard to reconcile with the requirement of "substantive legality" review predicated in Article 9 of the Aarhus Convention.
26
Al-adwan, Mamdouh Hassan Mane. "The Technologies of Remote Communication in The Investigation and Trial and Their Impact on the Requirements of Justice." Journal of Politics and Law 14, no. 3 (August 28, 2021): 138. http://dx.doi.org/10.5539/jpl.v14n3p138.
Abstract:
Using the remote communication technology in investigation and trial procedures is based on linking the parties of a criminal case in one geographical scope, or in several areas in the same country, or in different regional places among different countries. Therefore, it is imperative to get acquainted with the general rules in remote investigation and trial that have been introduced by criminal legislation to break the traditional general rules of litigation, and to take into account the technological development data in the field of crime detection without prejudice to the rights of the accused or other parties to the criminal case. There is no doubt that the use of audio-visual communication technology will clearly contribute to reducing the financial burdens on the parties of the case, in addition to the legality of these procedures and their impact on the criminal justice system. Consequently, most criminal legislation seeks to include new means and methods for conducting investigations and criminal trial procedures and to create effective litigation procedures in pursuit of achieving justice in its optimal form, especially as technological and technical means are constantly developing, which would necessitate to employ this tremendous development in technological data and modern technology to develop the justice sector.
27
Cheong, Sa Eon. "A Study on the Efficiency of Private School Teachers' Remedies for Rights: Focus on the Teachers' Appeal Review System." National Public Law Review 18, no. 3 (August 31, 2022): 209–38. http://dx.doi.org/10.46751/nplak.2022.18.3.209.
Abstract:
Education is the key responsibility to carry out the state because the achievement of education is the most important factor in determining the future of the country. Therefore, the status of teachers in charge of education should be guaranteed, and the educational activities of teachers should be protected and respected. And if the status and authority of the teacher are violated illegally, the authority must be protected and respected promptly and accurately. Under the current law, if a request for a petition is filed by the Teachers' Appeals Review Committee or if it is dissatisfied with the decision of the petition, the administrative litigation may be filed and remedied by the defendant, and the legal relationship of the private school teachers may be remedied through civil litigation. However, there are cases where the right to dispose of is not able to promptly and accurately remedy the right by neglecting the decision of appeal or filing an administrative lawsuit against the decision. Therefore, in order to secure the effectiveness of the decision of the appeal examination and to expand the right remedy, the objectivity of the appeal examination request should be expanded, the legitimacy of the disposition should be secured, the right of disposition should be prevented from abusing or being neglected, the implementation of the appeal examination decision should be enforced, and further punishment should be applied effectively. In addition, if the compensation through civil litigation becomes an issue, it will be possible to introduce a mediation system to promote rapid and economic rights relief. These teachers' rights relief is not only effective because the law and system are revised and newly introduced. Based on the importance of education, the right to dispose of the disposition should secure procedural and content legality, and in the teacher appeal examination system or litigation, it is necessary to strictly examine the disciplinary disposition or unfavorable disposition to improve the effect of legislation and system.
28
Shelton, Dinah. "Righting Wrongs: Reparations in the Articles on State Responsibility." American Journal of International Law 96, no. 4 (October 2002): 833–56. http://dx.doi.org/10.2307/3070681.
Abstract:
The International Law Commission’s articles on reparations restate the existing law on remedies, but they also innovate in significant ways to reinforce broader community interests in international legality. Given the dearth of precedents on reparations, both aspects can be helpful to tribunals and parties engaged in traditional interstate litigation, but the progressive elements, if they are accepted by states, could have wider application in supporting mechanisms to enhance implementation and observance of international obligations. The combination of codification and progressive development, however, is sometimes an uneasy fit and leaves unanswered several important questions about the theoretical foundation and practical application of the law of reparations. Even the seeming clarity of the articles is deceptive because some of the concepts included in the broadly drafted provisions can be difficult to apply in practice.
29
Park, Jae-Yoon. "Standing to sue in Administrative Litigation and Control Strategy of Administrative State." Korean Administrative Law Association 22 (March 30, 2022): 47–79. http://dx.doi.org/10.59826/kdps.2022.22.47.
Abstract:
With the recent prolonged Covid-19 crisis, the phenomenon of the administrative state, in which state functions are concentrated in the administration in crisis situations, is strengthening. Administrative litigation is the most important means of control over the executive from the perspective of the rule of law. In addition, it is natural that administrative litigation is aimed at relieving the rights of citizens. The question has been whether the two functions will be limited only to the subjective function, especially in appeals suit. This controversy stems from Article 81 of the Constitution. Today's understanding of administrative litigation has a fundamental relationship with how Congress and the judiciary distribute state authority with respect to the administration to effectively exercise national sovereignty.
There has been a continuous confrontation of positions over the interpretation of ‘legal interests’ in Article 12 of Administrative Litigation Act. This is the confrontation between so-called the subjective litigation theory and the objective litigation theory. Until recently, mainstream opinions were based on the Subjective Public Right Theory of Germany.
This theory has an undemocratic origin in its beginning. This still has a problem in that even in a democratized modern state, the administrative state phenomenon still appears according to the actual separation of powers, and the administration that should be controlled determines the scope of the controller. Therefore, the limitations of theory must be overcome by theory.
From this point of view, this study examines the discussions on the revision of Administrative Litigation Act over the past 20 years. Both Supreme Court's amendment and Ministry of Justice's amendment failed to lead to actual legislation and were unsuccessful. However, as a methodological struggle arising from the fundamental origin of Korea's administrative litigation law system, academic meaning can be found in its own way. After Ministry of Justice's proposal for a compromised solution, many scholars now support the view that the law should be revised and interpreted relatively consistently in the direction of expanding standing to sue.
According to a review in this study, it is confirmed that the Supreme Court is gradually moving away from the classical methodology that determines the protection of private interests by the underlying law. This is based on the fact that our legislation takes a typical legislative technology that sets the purpose around the public interest and establishes an administrative agency to establish a basis for public interest obligations and administrative actions. It can be evaluated that precedents have intuitively broken through the limitations of this legislative method in a way that considers factual interests. Here, a typology for deriving a profit situation emerges as an important methodology.
As a strategy to expand standing to sue, I suggested paying attention to eligible interest theory and legality guarantee theory. Furthermore, various strategies of types were reviewed, and a plan to allow class action was suggested. The above discussion is a review of the issue of standing to sue in terms of legal control over administration as a task of administrative litigation and needs to be further emphasized in relation to the recent phenomenon of the administrative state.
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Anjaraka, Philipus Dian, I. Nyoman Putu Budiartha, and Luh Putu Suryani. "Perlindungan Hukum terhadap Pengusaha Sewa Menyewa Kendaraan Bermotor yang Dirugikan oleh Konsumen pada Perusahaan Paulus Rental Bike Kabupaten Badung." Jurnal Preferensi Hukum 1, no. 1 (July 27, 2020): 234–38. http://dx.doi.org/10.22225/jph.1.1.2164.234-238.
Abstract:
The development of the motor vehicle industry sector is currently growing rapidly both domestically and imported from abroad so that in this business such as manufacturers, dealers and traders of vehicles competing with each other to provide facilities to consumers in order to increase turnover trading. In this research, it discusses efforts to resolve disputes between business owners who are harmed by consumers in the non-litigation process, and analyzes the obstacles that occur in the resolution of such disputes. The method used in this study is the empirical research method. The data used are primary and secondary data. The results showed that efforts to resolve disputes between business owners, especially motor vehicle leasing when harmed by consumers, were carried out by non-litigation, namely by using an alternative dispute resolution outside the court with mediation and negotiation mechanisms to the tenants who had apologized by returning the money agreed by both parties. In addition, the inhibiting factor in efforts to resolve disputes between business owners who are disadvantaged by consumers in the dispute resolution process is the rule of law factor. In this case because the loss is classified in the civil realm, it requires time to prove the loss that must get legality from the court. Not only the rule of law, but also law enforcement factors that process cases for so long and slow respond.
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Akhtar, Zia. "China's Evolution from Socialist Legality: The Expansion in the Role of Judges and the Redress of Grievances." Journal of Politics and Law 15, no. 1 (December 24, 2021): 52. http://dx.doi.org/10.5539/jpl.v15n1p52.
Abstract:
The Chinese state implemented a conscious transfer to a market economy after 1977 when the Four Modernisations were inaugurated and the new Constitution promulgated in 1982 raised the possibility for the separation of powers. The new framework introduced judicial review into the structure of the legal system that was to provide redress of grievances from mal administration. The transition to a new leadership in 2011 allowed the National Peoples Congress to enact administrative reforms, and further amendments to the Chinese Constitution in 2018 have promulgated the Judges Law. The judicial reforms promote the values of an independent judiciary and there is an effective machinery of justice which promotes judicial review. This paper argues that the centralisation of power by the Communist Party does not preclude the functioning of judicial administration that conforms to rule of law and an emerging trend of public interest litigation and participatory justice.
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Muhammad Taufan Djafri, Askar Patahuddin, Azwar Iskandar, and Ambarwati Ambarwati. "Permasalahan dan Penyelesaian Sengketa Wakaf Menurut UU No. 41 Tahun 2004 dan Hukum Islam (Studi Sengketa Wakaf Tanah Wahdah Islamiyah)." BUSTANUL FUQAHA: Jurnal Bidang Hukum Islam 2, no. 3 (November 18, 2021): 396–412. http://dx.doi.org/10.36701/bustanul.v2i3.402.
Abstract:
This research aims to find out: (1) the issue of waqf disputes and their resolution in Indonesia in the review of the Law. No. 41 of 2004 and Islamic law; and (2) the issue of waqf disputes and their settlement in Wahdah Islamiyah. This research includes the category of descriptive research using qualitative methods with a juridical-normative approach through field research. The results showed that: (1) the form of land waqf dispute problems in Indonesia, including: (a) issues involving holders of legitimate rights to waqf land; (b) issues related to the reason for rights or proof of acquisition used as a basis for granting rights; (c) errors/misrepresentation of rights. In addition, the problem is also in the form of still many waqf land that does not have a Waqf Pledge Deed, many waqf implementations are carried out religiously or based on mutual trust, the demand for the return of waqf land by wakif heirs and waqf land is controlled for generations by nazirs who deviate from waqf accounts. Article 62 of Law No. 41 of 2004 on Waqf affirms that the resolution of disputes is taken through deliberation for consensus. If dispute resolution through deliberation is unsuccessful, the dispute can be resolved through mediation, arbitration, or court. As for the review of Islamic law, the resolution of waqf disputes and other issues in the realm of Islamic law can be facilitated through litigation and non-litigation. The existence of peace (al-iṣlah) and deliberation for consensus is always a priority and is expected to solve problems without causing other problems (lā ḍarara wa lā ḍirāra) to achieve the benefit of the people in accordance with maqāṣid al-syarī'ah and justice; (2) Wahdah Islamiyah faces several problems of land waqf disputes, such as lack of legal certainty in waqf land ownership, waqf practice by conventional means, waqf land for sale, claims of waqf land ownership, and no checking the legality of waqf land. In the settlement of land waqf disputes, Wahdah Islamiyah directs the resolution of all dispute cases through two patterns, namely litigation and non-litigation patterns, which are generally done by familial means or consensus deliberation.
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León, Fernando. "Morning-After Decisions: Legal Mobilization Against Emergency Contraception in Chile." Michigan Journal of Gender & Law, no. 21.1 (2014): 123. http://dx.doi.org/10.36641/mjgl.21.1.morning-after.
Abstract:
In Chile, the Criminal Code bans all forms of abortion. Furthermore, the Constitution—drafted and enacted by the Military Junta led by General Augusto Pinochet—was inspired by a conservative version of Catholic natural law championed by prominent Chilean constitutional law scholars. This Article traces the emergence, development, and ultimately the defeat of a persistent legal mobilization driven by natural law-inspired litigants, politicians, and scholars against levonorgestrel-based emergency contraception, also known as the morning-after pill. In their decade-long efforts at legal mobilization, these natural law litigants used every tool of the Chilean legal system to challenge the legality and the constitutionality of the morning-after pill. This case of legal mobilization demonstrates both the strengths and the weaknesses of conservative political and religious networks in Latin America, and it demonstrates both the potential and limitations of litigation-led policymaking in civil law countries.
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Rajkumar, Rahul, Cary P. Gross, and Howard P. Forman. "Is the Tobacco Settlement Constitutional?" Journal of Law, Medicine & Ethics 34, no. 4 (2006): 748–52. http://dx.doi.org/10.1111/j.1748-720x.2006.00095.x.
Abstract:
In August 2005, the Competitive Enterprise Institute (CEI), a conservative “think tank” and advocacy organization, filed a lawsuit in the Federal District Court for the Western District of Louisiana against the Louisiana Attorney General challenging the legality of the 1998 Master Settlement Agreement (MSA). If successful, this lawsuit could lead to the unraveling of one of the most significant opportunities to improve public health in United States history.Under the MSA, forty-six states agreed to end their litigation against the four largest tobacco companies in the United States, who in turn agreed to pay the states an estimated $206 billion. The CEI alleges that the MSA is unconstitutional. Specifically, the suit alleges that the MSA established a cartel under which the states receive monetary payments and the four major tobacco companies are insulated from price competition – and that this arrangement violates the Compact Clause of the U.S. Constitution.
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Tylchyk, Vyacheslav, and Olha Tylchyk. "GUARANTEES OF LEGALITY OF PUBLIC ADMINISTRATION ACTIVITY: FROM CONCEPT TO PRACTICAL IMPLEMENTATION." Baltic Journal of Economic Studies 7, no. 1 (January 22, 2021): 134–38. http://dx.doi.org/10.30525/2256-0742/2021-7-1-134-138.
Abstract:
The purpose of the article is an attempt to consider guarantees of the legality of public administration through rethinking the existing system of appeal, taking into account the novelties of domestic science and practice, and the preconditions for the formation of administrative procedural law, in which the central place belongs to the category of “dispute in public relations”. The analysis of subsystems of dispute resolution through administrative proceedings and pre-trial appeals from the standpoint of efficiency and the dialectical connection is carried out. It is stated that to ensure the effectiveness of the generally accepted system of dispute resolution as a guarantee of legality, the activities of public administration entities today are the priority of absolutely all legal countries. Significant obstacles on gradual and systematic activities such as those caused by an acute exacerbation of social tension in society, external aggression, especially the development of legal doctrine and legislation that includes an ambiguous position. Today, most scholars agree that the issues of guarantees of the legality of public administration are directly related to the ability to present a model for appealing decisions, actions, inactions and determine its levels. Scientific support of the processes of formation of a legal and socially-oriented state is closely connected with the need to strengthen the methodological armament of legal science, its departure from outdated scientific dogmas, and the search for forms of manifestation and enforcement. The solution of the goal set in the publication is achieved using the cognitive potential of the system of philosophical, general scientific, and special methods. Analysis and synthesis allowed to determine the features of the concepts of “appeal” and “dispute” within the administrative appeal. Methods of review of grammar and interpretation of the law helped identify gaps and other shortcomings of legislation problems introducing mediation in the judicial administrative process as of alternative that will act as a separate stage of proceedings litigation, making suggestions for improvement. Practical implications. The formulated proposals for the development of legal support for appealing decisions, actions, the inaction of public administration, along with the functioning of administrative proceedings as a procedural form of administrative justice, acts as a guarantor of public administration in the relationship between citizen and state and is an integral part of this model.
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Wardoyo, Yohana Puspitasari, and Dwi Ratna Indri Hapsari. "Cryptocurrency assets as a physical collateral in Indonesia." Legality : Jurnal Ilmiah Hukum 31, no. 1 (April 10, 2023): 59–71. http://dx.doi.org/10.22219/ljih.v31i1.24190.
Abstract:
Cryptocurrency investment is currently expanding quickly on a global scale as well as in Indonesia. On the one hand, cryptocurrency can be used as a medium of exchange or a form of money, which represents the original purpose of cryptocurrency. On the other hand, it can also be used as a commodity or as digital assets, also known as crypto assets. Cryptocurrency is illegal to use as money in Indonesia, but it is legal to exchange it as an asset. This study explores the legal protections for holders of collateral against the loss of crypto assets as well as how crypto assets are governed by material guarantees in Indonesia. A conceptual and statutory approach, technical analysis, and a normative legal research methodology were applied in the study. The legal material was analyzed by using the content analysis approach, which involved examining the content and legality of the material gleaned from various laws and regulations by looking at the relevant legal precedents. The discussion results discover that crypto assets fall under the definition of "intangible movable objects" as defined in article 503 BW. In addition, crypto assets had material rights in the form of material guarantees in the form of a pledge and fiduciary guarantees, allowing the parties to carry out their agreements in good faith even in the event that the collateral object is lost. These disputes could be settled through either non-litigation or litigation.
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Barnard, Catherine, and Bob Hepple. "Indirect Discrimination: Interpreting Seymour-Smith." Cambridge Law Journal 58, no. 2 (July 1999): 399–412. http://dx.doi.org/10.1017/s0008197399002068.
Abstract:
THE preliminary ruling by the European Court of Justice in the Seymour-Smith and Perez case about the scope and meaning of indirect discrimination has done little to clarify this perplexing concept. The ruling does not tell the thousands of short-service employees whose claims were stayed pending the litigation whether the qualifying period of two years’ continuous service for the right not to be unfairly dismissed is contrary to Community law. Nor does it provide clear standards by which disparate impact is to be tested, nor the relevant time for assessing the legality of an allegedly discriminatory measure, nor the conditions for establishing objective justification. More generally, these proceedings under Article 177 (now Article 234) of the EC Treaty reveal a failure by the Court to perform its function of facilitating the national court in interpreting and applying Community equality law in a way which would be consistent and uniform throughout the Union.
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Ebobrah, Solomon T. "Critical Issues in the Human Rights Mandate of the ECOWAS Court of Justice." Journal of African Law 54, no. 1 (March 4, 2010): 1–25. http://dx.doi.org/10.1017/s0021855309990143.
Abstract:
AbstractA new opportunity for international human rights litigation in West Africa was presented in 2005 when the Economic Community of West African States adopted a protocol to empower its judicial organ, the ECOWAS Community Court of Justice, to determine cases of human rights violation that occur in ECOWAS member states. Since then, several human rights claims have been brought before the court. However, critical questions concerning the legality of the new mandate and the suitability of the court to exercise a human rights jurisdiction have lingered. Beginning with an inquiry into the foundation within ECOWAS for the exercise of a human rights jurisdiction, this article analyses the legitimacy of the human rights mandate of the ECOWAS court and interrogates crucial issues relevant to the effectiveness of the mandate. The article suggests ways to enhance execution of the mandate and concludes with a call for careful judicial navigation in the exercise of the court's expanded jurisdiction.
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Chevalier, Maxime. "From Smart Contract Litigation to Blockchain Arbitration, a New Decentralized Approach Leading Towards the Blockchain Arbitral Order." Journal of International Dispute Settlement 12, no. 4 (October 31, 2021): 558–84. http://dx.doi.org/10.1093/jnlids/idab025.
Abstract:
Abstract Blockchain dispute resolution has led the crypto economy to the surge of a new form of dispute resolution: blockchain arbitration. Resolving disputes on-chain is becoming necessary as national and international legal frameworks are not adapted to the characteristics of blockchain transactions. More importantly, the legality of smart contracts is highly debated under various national laws. This new sui generis form of arbitration should not be assimilated with traditional arbitration. Indeed, blockchain arbitration might not fit within the traditional international arbitration framework, and it does not have to. Because blockchain arbitration operates as an oracle, the decision from the jurors automatically triggers or modifies the smart contract. Through the blockchain technology, arbitration has reached the possibility to automatically enforce arbitral awards with no need to rely on state courts’ authority. Observing the legal theories of international arbitration, blockchain arbitration enshrines the representation of delocalized arbitration, but simultaneously leaves room for a new representation of arbitration: decentralized arbitration. In the next decades, we will see the surge of the blockchain arbitral order, an independent legal order anchored in the Lex Cryptographia. This essay advocates for the recognition of the blockchain arbitral legal order and tries to draw its contours.
40
Zhang, Xingmei. "China’s mode of electronic reform for court records." Pravovedenie 66, no. 4 (2022): 360–70. http://dx.doi.org/10.21638/spbu25.2022.401.
Abstract:
The development of information technology has made the electronic reform of court records possible. As a new type of court records media, audio-video recordings have attracted attention worldwide. Driven by the National Informatisation and Internet Power strategies, China has formed its own operational paradigm in this regard. According to Several Provisions of the Supreme People’s Court on the Audio-Video Recordings of Courts Trials by the People’s Courts, electronic reforms for court records in China currently follow a quasi-parallel paradigm, in which audio-video recordings may replace traditional trial transcripts within the scope of summary procedure with the consent of the parties involved. This mode of reform is consistent with China’s tradition of gradual reform. It is not only affirms the application of information technology in the court record system but also considers differences in procedures. However, it is more similar to a “prudent attempt” at electronic reforms made under the existing legal framework of litigation, representing a bridge between legislation and judicial practice, and has not responded to the impact of information technology on the court record system to the maximum xtent. From the theoretical perspectives of essentialism and functionalism, the standard mode of electronic reform for court records needs to be prioritised by the courts by considering the rights of litigants. A parallel paradigm can then be constructed, whereby audio-video recordings hold the same legality as trial transcripts. Furthermore, this reform process should strengthen the coordination mechanisms between the development of legality, system coordination, and a balance of interests to effectively guarantee electronic reforms for court records.
41
Poncibó, Cristina, and Larry A. Dimatteo. "Quandary of Smart Contracts and Remedies: The Role of Contract Law and Self-Help Remedies." European Review of Private Law 26, Issue 6 (December 1, 2018): 805–24. http://dx.doi.org/10.54648/erpl2018056.
Abstract:
Abstract: Smart contracts provide a quandary for contract law remedies. The self-enforcing nature of smart contracts implies that there is little possibility for breach and thus, little need or opportunity to apply contract law remedies. This article explores if this is really the case. It concludes that contract law remains applicable to smart contracts relating to the enforceability of its terms based on legality, public policy, and contracts policing doctrines. In such cases, post hoc judicial or arbitral claims remain likely and the dispute resolution bodies would seek to apply contract remedies. In order to diminish instances of litigation or arbitration the smart contract should include self-remedying or internal measures (remedies). The article divides internal measures into proactive and reactive measures. These measures should be considered in the drafting of a smart contract in order to diminish resort to contract remedies. In the end, contract law and contract remedies will remain important as default law. In addition, like smart contracts, some of contract law rules are immutable and cannot be made obsolete by blockchain technology.
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Rovneyko, V. V. "PROBLEMS OF CRIMINAL LAW EVALUATION OF PATENT TROLLING." Bulletin of Udmurt University. Series Economics and Law 30, no. 2 (April 23, 2020): 282–88. http://dx.doi.org/10.35634/2412-9593-2020-30-2-282-288.
Abstract:
The article deals with the issues of criminal law and legal assessment of patent trolling, which, on the one hand, is a kind of abuse of law and violation of the principle of good faith of participants in civil legal relations, and, on the other hand, has a sufficient degree of public danger and prevalence to be the basis of criminal liability. The author's conclusions are based on the study of media materials and judicial practice. Most of the “victims” of patent trolling pay money, not being mistaken about the legality of the claims, but being guided by the desire to avoid legal costs and other problems associated with litigation. Establishing the criminal legal nature of patent trolling is somewhat problematic, since it is a combination of fraud and extortion in the broad sense of these concepts. Signs of existing crimes, such as fraud (article 159 of the criminal code) and extortion (article 163 of the criminal code), contain definitions of these concepts in a narrow sense. This does not allow such actions to be classified as specified crimes.
43
Orakhelashvili, Alexander. "The International Court and ‘Its Freedom to Select the Ground Upon Which it Will Base its Judgment’." International and Comparative Law Quarterly 56, no. 1 (January 2007): 171–84. http://dx.doi.org/10.1093/iclq/lei155.
Abstract:
The outcome of the litigation before the International Court of Justice can be seriously affected by the Court's treatment of the parties' submissions, not just because the Court's disregard of the submission of the party can affect the legal rights of that party. The final decision can end up being substantially different from what most people would expect. This happened, for instance, in some cases in which much was at stake, such as Arrest Warrant, Oil Platforms or Legality of the Use of Force. The reasoning and outcome of these cases, involving the issues of the use of force and the account-ability for serious violations of human rights and humanitarian law, was important not merely for the parties' rights and interests, but also had a wider dimension of clarifying the applicable law on the important questions that very frequently arises within the international legal system and affects its operation and efficiency. It is therefore crucial to ascertain what the Court's powers are in dealing with the parties' submissions and if such powers are subject to certain limits.
44
Cumper, Peter, and Tom Lewis. "Last Rites and Human Rights: Funeral Pyres and Religious Freedom in the United Kingdom." Ecclesiastical Law Journal 12, no. 2 (April 30, 2010): 131–51. http://dx.doi.org/10.1017/s0956618x10000025.
Abstract:
This article considers the litigation in Ghai v Newcastle City Council in which the legality of open air funeral pyres under the Cremation Act 1902, and under the right to freedom of religion and belief in article 9 of the European Convention on Human Rights, was considered. Ultimately the Court of Appeal held that open air funeral pyres within a walled enclosure were not unlawful. But at first instance the Administrative Court, which had assumed that domestic law prohibited such pyres, held that such a ban would not breach article 9 since it was legitimate to prevent causing offence to the majority of the population. It is the approach of the Administrative Court to article 9 (which was not considered by the Court of Appeal) that forms the basis of the critical analysis in this article. In particular it is argued that the Administrative Court undervalued the right to freedom of religion and belief, as against the need to prevent offence to others, and adopted a stance which was overly deferential to Government and Parliament.1
45
Egbe, Catherine O., Senamile P. Ngobese, Hannah Barca, and Eric Crosbie. "“Are they trying to control us people?”: News media coverage of COVID-19 lockdown tobacco sales ban in South Africa." PLOS ONE 17, no. 12 (December 12, 2022): e0278888. http://dx.doi.org/10.1371/journal.pone.0278888.
Abstract:
The South African government imposed one of the strictest lockdowns in the world as part of measures to curb the spread of COVID-19 in the country, including a ban on the sale of tobacco products. This study explored news media coverage of arguments and activities in relation to the South African lockdown tobacco sales ban. We collected media articles published between 26 March to 17 August 2020, which corresponded to the period of the sales ban. Data were sourced via google search and snowball identification of relevant articles. Thematic analysis of data was conducted with the aid of NVivo. We analysed a total of 305 articles relevant to the South African tobacco sales ban during the lockdown. Six major themes were identified in the data: challenges associated with implementing the ban, litigation, and threats of litigation to remove the ban, governance process and politicization of the ban, pro and anti-tobacco sales ban activities and arguments and reactions to the announcement lifting the ban. The initial reason for placing the ban was due to the non-classification of tobacco products as an essential item. Early findings of a link between tobacco smoking and COVID-19 disease severity led to an extension of the ban to protect South Africa’s fragile health system. Pro-sales ban arguments included the importance of protecting the health system from collapse due to rising COVID-19 hospitalization, benefit of cessation, and the need for non-smokers to be protected from exposure to secondhand smoke. Anti-sales ban arguments included the adverse effect of nicotine withdrawal symptoms on smokers, loss of jobs and the expansion of the illicit cigarette markets. Litigation against the ban’s legality was a strategy used by the tobacco industry to mobilize the public against the ban while promoting their business through the distribution of branded masks and door-to-door delivery which goes against current tobacco regulations. The media could serve as a veritable tool to promote public health if engaged in productive ways to communicate and promote public health regulations to the general population. Engagement with the media should be enhanced as part of health promotion strategies.
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Isrok, Mohammad, and Radhityas Kharisma Nuryasinta. "Typology of Strengthening Foundations as Successor to Old Foundations Post Regime Law on Foundations." Indonesia Law Reform Journal 3, no. 1 (April 12, 2023): 26–41. http://dx.doi.org/10.22219/ilrej.v3i1.24323.
Abstract:
After the Law on Foundations was formed, every Foundation that existed before the enactment of the Law was obliged to adjust its Articles of Association with the provisions of the Law on Foundations. If not, there will be legal consequences for foundations that have not made adjustments, or in other words, the foundation will be legally weak and will also have an impact on the assets/wealth of the foundation. The purpose of this study is to find out the legal implications for new foundations that do not comply with the Foundation Law, as well as find out the typology of strengthening foundations to adjust the condition of their assets by the Foundation Law. With the sociological juridical method, it can be concluded that for foundations that do not adjust their statutes by the Law on foundations, especially related to assets, the foundation will have difficulty managing the ownership of its assets, especially for immovable objects. Then there are two typologies of strengthening to adjust the conditions of the AR Foundation by the Foundation Law, namely from the legality side of law and audit reports. Legal legality emphasizes that achieving accountability and transparency can be carried out through non-litigation efforts which include controlling assets, increasing the capacity of Foundation organs, strengthening supervision, and mediation as well as litigation efforts in the form of court suits. While the typology of strengthening in terms of financial reports, foundations need to have routine reporting standards to report their activities and funding to the Foundation Trustees by financial accounting standards. Keywords: Foundation; Strengthening; Typology. Abstrak Pasca Undang – Undang tentang Yayasan terbentuk, setiap Yayasan yang lahir/ ada sebelum UU Yayasan wajib untuk menyesuaikan Anggaran Dasarnya dengan ketentuan UU Yayasan. Jika tidak maka akan ada implikasi hukum terhadap Yayasan yang belum melakukan penyesuaian, atau dengan kata lain Yayasan tersebut lemah secara hukum yang turut berdampak (salah satunya) terhadap asset/kekayaan Yayasan. Penyesuaian yang diwajibkan semata-mata bertujuan untuk memberikan penguatan pada sebuah Yayasan yang masih eksis hingga saat ini. Sedangkan penguatan itu sendiri memiliki karakter tertentu yang pada umumnya akan terakumulasi dan muncul sebagai bentuk kesan maupun citra yang diberikan siapa saja terhadap eksistensi Yayasan. Beranjak dari latar belakang yuridis demikian maka penelitian ini menjadikan Yayasan “AR” sebagai objek penelitian, karena berdasarkan observasi peneliti menemukan adanya problem status asset/ kekayaan Yayasan yang disebabkan oleh kurang optimalnya pengelolaan aset yang harus mengacu kepada UU Yayasan. Problem yang demikian menempatkan posisi Yayasan “AR” lemah secara hukum terhadap kepemilikan asetnya, sehingga melalui penelitian ini diharapkan dapat memberikan gambaran objektif mengenai faktor penyebab problem tersebut, dan memberikan solusi mengenai langkah apa saja yang diperlukan untuk memperkuat Yayasan “AR”. Terlebih bahwa Penyesuaian asset/ kekayaan memiliki keterkaitan dengan terbentuknya sebuah klasifikasi penguatan atau yang sering digunakan dengan istilah tipologi penguatan. Guna menjawab permasalahan tersebut, peneliti mengangkat dua buah permasalahan, pertama apa implikasi hukum terhadap Yayasan baru yang tidak menyesuaikan diri dengan UU Yayasan, khususnya terkait asset Lembaga, dan kedua bagaimana tipologi penguatan untuk menyesuaikan kondisi Yayasan baru saat ini dengan ketentuan UU Yayasan. Kata kunci: Penguatan; Tipologi; Yayasan.
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Setiawan, Ahmad, Agus Mulyawan, and Nuraliah Ali. "SENGKETA JUAL BELI TANAH BERSTATUS SURAT KETERANGAN TANAH: KEDUDUKAN HUKUM DAN PENYELESAIANNYA DALAM REGULASI HUKUM POSITIF DAN HUKUM ADAT DAYAK." Juris 7, no. 1 (June 20, 2023): 36–43. http://dx.doi.org/10.56301/juris.v7i1.780.
Abstract:
Disputes over land occur in almost every region in Indonesia. One of the cases of legal problems in the field of buying and selling land is the dispute over the sale and purchase of land with the status of a land certificate with overlapping ownership. Dispute resolution methods are litigation or through court and non-litigation or outside the court such as through Nganju Dayak customary law. This study aims to examine how the legal position of land ownership certificates (SKT) is in the perspective of positive law in Indonesia and how to resolve it according to the Adat law of the Dayak Ngaju of Central Kalimantan. This type of research is empirical juridical legal research. The types or sources of data used are primary data and secondary data. The research instruments used were interviews and library research. Data obtained based on library research and field data were analyzed by qualitative descriptive analysis. The position of SKT is based on positive law in Indonesia as stated in Article 76 paragraph (3) Permenag No.3/1997, a certificate of rights does not meet the requirements to be considered a statement of physical ownership of a land parcel if it does not fulfill the six specified conditions. Land which is based only on HCS ownership, does not have sufficiently strong evidence of ownership of the land and is directed to increase the legality of ownership certificates or SHM as proof of ownership that is authentic and legal with legal certainty. Settlement of land sale and purchase disputes based on customary law of the Dayak Nganju through Kedamangan Jekan Raya is pursued by prioritizing the peace process and prioritizing the principle of kinship, the decision does not cause resentment and dissatisfaction, without resentment which ends in the breakup of good relations between the two.
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Gippini-Fournier, Eric. "The Elusive Standard of Proof in EU Competition Cases." World Competition 33, Issue 2 (June 1, 2010): 187–207. http://dx.doi.org/10.54648/woco2010017.
Abstract:
Lawyers trained in common law systems often enquire about the applicable standard of proof when the EU Courts in Luxembourg (the General Court and the Court of Justice) review the legality of competition law decisions of the European Commission. This article shows that, despite occasional references in the English language versions of some recent judgments, the concept of ‘standard of proof’ as such does not form part of the Courts’ reasoning process. The EU Courts seem more influenced by the predominant conception in civil law countries – the vast majority of EU Member States have civil law systems – where the judge decides according to the persuasiveness of the evidence without being bound by pre-determined evidentiary or probability ‘thresholds’. The elusive and largely fruitless quest for ‘the’ standard of proof that has mired so many authors appears to be a blind alley. With specific reference to competition cases, the article then explores some factors (including, for example, the distinction between actions and consequences or the judge’s implicit views on economic ‘normality’), which may contribute to explaining the process of persuasion in litigation before the EU Courts.
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Papadopoulos, Nikolaos A. "Austerity-Based Labour Market Reforms in Greece v. Fundamental Rights in the Aftermath of the European Debt Crisis: An Analysis of Supranational and National Bodies’ Jurisprudence." European Public Law 26, Issue 2 (June 1, 2020): 421–50. http://dx.doi.org/10.54648/euro2020050.
Abstract:
The recent debt crisis in Europe has resulted in a significant number of structural reforms implemented in EU Member States across various fields, including the labour market, either in the context of the bailout mechanisms or the EU Economic Governance framework. This development has provoked fundamental rights concerns and has consequently given rise to litigation strategies that put austerity reforms under the test of legality before supranational and national competent bodies and courts. However, the jurisprudence that has developed in that regard seems incoherent and shows real differences in approach. This study analyses the paths of judicial reasoning that supranational and Greek bodies have adopted in fundamental rights cases challenging austerity-based labour market reforms implemented in Greece during the European Debt Crisis. It concludes that different paths of reasoning have been adopted, which could even be regarded as conflicting at several instances. They are thus reflecting the well-known particularities and discrepancies of fundamental rights protection in Europe as well as the conflicting relationship of social rights with economic and fiscal considerations imposed by austerity in times of crisis and beyond. Austerity, Greece, labour market reforms, fundamental rights, European Debt Crisis, social rights, labour law, ECHR, European Social Charter, Court of Justice of the European Union
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CAFAGGI, Fabrizio, and Paola IAMICELI. "Uncertainty, Administrative Decision-Making and Judicial Review: The Courts’ Perspectives." European Journal of Risk Regulation 12, no. 4 (October 14, 2021): 792–824. http://dx.doi.org/10.1017/err.2021.47.
Abstract:
The role of courts has been rather significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to contribute to governing crisis management. Although differences exist across countries, depending on institutional varieties and political contexts, the analysis shows that, even in times of emergency, courts can provide the necessary balance to the power shift towards the executives. Both action and inaction affecting fundamental rights have been scrutinised, taking into account fundamental freedoms and the rule of law. Deference to political decision-making has varied across jurisdictions and across the multiple phases of the health crisis. Differences in the balancing have emerged compared to during ordinary times. Uncertainty has played a major role, calling for new strategies in regulatory, administrative and judicial decision-making and new balances between precaution and evidence-based approaches. The role of scientific evidence has been at the core of judicial review to ensure transparency and procedural accountability. Proportionality and reasonableness with multiple conceptual variants across countries have been used to scrutinise the legality of measures. Courts are likely to continue playing a significant but different role in the years to come, when liability issues and recovery measures will likely become the core of litigation.