Search results for: legal research

Authors: Gabriel Acha Ekobi

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Fathers play a crucial role in meeting family needs such as affection, protection, and socio-economic needs of children in the world in general and South Africa in particular. Fathers’ role in children’s lives is important in providing socialization, leadership skills, and teaching societal norms. Fathers influence is very significant for children’s well-being and development as it provides the child with moral lessons, guidance, and economic support. However, there is a paucity of information regarding the effects of fathers on children. In addition, despite legal frameworks such as the African Charter on the Rights and Welfare of the child (1999) introduced by the African Union to promote child rights nevertheless, it appears maltreatment, abuse, and poor health care continue to face children. Also, the Constitution of 1996 of the Republic of South Africa (Section 28 of the Bill of Rights) and the Children’s Act 38 of 2005 were introduced by the South African government to foster the rights of children. Nevertheless, these legal frameworks remain ineffective as children’s rights are still neglected by resident fathers. This paper explores the impact of resident fathers on children in the Golf View, Alice town of the Eastern Cape Province, South Africa. A qualitative research method and an exploratory research design were utilized, and 30 participants took part in the study. The participants comprised of single mothers or caregivers of children, resident fathers and social workers. Eighteen (18) single mothers or caregivers, 10 resident fathers, and two (2) social workers participated in the study. Data was collected using semi-structured and unstructured interviews and analysed thematically. Two main themes were identified: the role of fathers on children and the effects of resident fathers on children. The study found that the presence of fathers in the lives of children prevented psychosocial issues such as stress, depression, violence, and substance abuse. A father’s presence in a household was crucial in instilling moral values in children. This allowed them to build positive characters such as respect, kindness, humility, and compassion. Children with more involved fathers tend to have fewer impulse control problems, longer attention spans, and a higher level of sociability. The study concludes that the fathers’ role prevented anxiety, depression, and stress and led to the improvement of children’s education performance. Nevertheless, the absence of a father as a role model to act as a leader by instilling moral values hinders positive behaviours in children. This study recommended that occupational training and life skills programmes should be introduced by the government and other stakeholders to empower the fathers as this might provide the platform for them to bring up their children properly.

Keywords: children, fathering, household, resident, single parent

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Authors: Andrew Anis Fakhrey Mosaad

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Objectives: Physiotherapy in the intensive care unit (ICU) improves patient outcomes. We aimed to determine the characteristics of physiotherapy practice and critical barriers to applying physiotherapy in ICUs. Materials and Methods: A 54-item survey for determining the characteristics physiotherapists and physiotherapy applications in the ICU was developed. The survey was electronically sent to potential participants through the Turkish Physiotherapy Association network. Sixty-five physiotherapists (47F and 18M; 23–52 years; ICU experience: 6.0±6.2 years) completed the survey. The data were analyzed using quantitative and qualitative methods. Results: The duration of ICU practice was 3.51±2.10 h/day. Positioning (90.8%), active exercises (90.8%), breathing exercises (89.2%), passive exercises (87.7%), and percussion (87.7%) were the most commonly used applications. The barriers were related to physiotherapists (low level of employment and practice, lack of shift); patients (unwillingness, instability, participation restriction); teamwork (lack of awareness and communication); equipment (inadequacy, non-priority to purchase); and legal (reimbursement, lack of direct physiotherapy access, non-recognition of autonomy) procedures. Conclusion: The most common interventions were positioning, active, passive, breathing exercises, and percussion. Critical barriers toward physiotherapy are multifactorial and related to physiotherapists, patients, teams, equipment, and legal procedures. Physiotherapist employment, service maintenance, and multidisciplinary teamwork should be considered for physiotherapy effectiveness in ICUs.

Keywords: intensive care units, physical therapy, physiotherapy, exercises

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Authors: Nik Abdul Rahim Nik Abdul Ghani, Mat Noor Mat Zain, Ahmad Dahlan Salleh

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Ownership of asset is an important aspect in ensuring the validity of sale contract. Nevertheless, in Islamic finance, the issue of beneficial ownership as practiced in the current system is seriously debated among Shariah scholars. It has been argued as violating the real concept of ownership (milkiyyah) in Shariah law. This article aims at studying the status of beneficial ownership from the Shariah perspective. This study begins with examining the meaning of ownership and its attributes from the Islamic point of view and followed by the discussion on the origin of beneficial ownership from the legal perspective. The approach that is applied to clarify the concept of beneficial ownership is content analysis. Subsequently, this study explains some current applications of beneficial ownership in Islamic finance to be analyzed further from the Shariah aspect. The research finding suggests that beneficial ownership should be recognized as a real ownership due to the fact that Shariah allows the transfer of ownership after the execution of offer (ijab) and acceptance (qabul).

Keywords: beneficial ownership, ownership, Islamic finance, parameter

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Authors: Precious M. Tshabalala, Thula S. Dlamini, Frikkie Liebenberg, Johann Kirsten

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Numerous studies have been conducted, and the evidence has been unambiguous showing that investing in agricultural research and development increases productivity. Continued investments in agricultural research have led to the development of over 26 successful plum cultivars since 1980 at the Agricultural Research Council’s (ARC) Infruitec/Nietvoorbij in South Africa, and more continue to be developed to meet the specific needs of both producers and consumers. Yet very little is known about the returns on any of these research initiatives. The objective of the study was determine the economic impact of plum research investments at the ARC-the main plum breeding research organization in the country. The rate of return to plum research is estimated by estimating parameters in plum production and expressing research investment as an explanatory variable. The marginal rate of return is then determined to be 14.23 per cent. The rate of return to investment being this high is indicative of an under investment in plum research.

Keywords: Agricultural research investments, productivity and rate of return, plum

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Authors: Ana Maria De Azevedo

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We are living a remarkable period, responsible for the thriving of the human population to unprecedented levels. Still, it is empirically obvious that sustaining such a huge population puts a tremendous pressure on our planet. Once Land resources grow scarcer, there is a mounting pressure to find alternatives to support basic human needs elsewhere. Occupying most of our planet, it’s therefore natural that, is not a so distant future, humankind look for such basic subsistence means at the Ocean. Thus, once the Ocean becomes essential to Human subsistence, it is predictable it's moving to the foreground of Geopolitics. Both future technologies and uses of the Ocean, as bidding for the exploration of its resources away from the natural territory of influence of a Country, are susceptible of raising the risk of conflict between traditional political adversaries and/or the dilemma of having to balance economic interests, with various security and defense concerns. Those empirical observations suggest the need to further research on this perspective shift of the main Geopolitical axis to the Ocean, the new sources of conflict that can result thereon, and how to address them. The author suggests a systematic analysis of this problematic, to attain a political and legal international consensus, namely on what concerns updating of the 'United Nations Convention on the Law of the Sea' of 10 December 1982, and/or its annexes. To proceed with the present research, the primary analysis was based on a quantitative observation, but reasoning thereon relied essentially on a qualitative process of prospective scenarios assessment.

Keywords: marine resources, ocean geopolitics, security and defense, sustainable development

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Authors: Tamir Michal

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The subject of Bedouin dispersion has accompanied the State of Israel from the day of its establishment. From a legal point of view, this subject has offered a launchpad for creative judicial decisions. Thus, for example, the first court decision in Israel to recognize affirmative action (Avitan), dealt with a petition submitted by a Jew appealing the refusal of the State to recognize the Petitioner’s entitlement to the long-term lease of a plot designated for Bedouins. The Supreme Court dismissed the petition, holding that there existed a public interest in assisting Bedouin to establish permanent urban settlements, an interest which justifies giving them preference by selling them plots at subsidized prices. In another case (The Forum for Coexistence in the Negev) the Supreme Court extended equitable relief for the purpose of constructing a bridge, even though the construction infringed the Law, in order to allow the children of dispersed Bedouin to reach school. Against this background, the recent verdict, delivered during the Protective Edge military campaign, which dismissed a petition aimed at forcing the State to spread out Protective Structures in Bedouin villages in the Negev against the risk of being hit from missiles launched from Gaza (Abu Afash) is disappointing. Even if, in arguendo, no selective discrimination was involved in the State’s decision not to provide such protection, the decision, and its affirmation by the Court, is problematic when examined through the prism of the Theory of Recognition. The article analyses the issue by tools of theory of Recognition, according to which people develop their identities through mutual relations of recognition in different fields. In the social context, the path to recognition is cognitive respect, which is provided by means of legal rights. By seeing other participants in Society as bearers of rights and obligations, the individual develops an understanding of his legal condition as reflected in the attitude to others. Consequently, even if the Court’s decision may be justified on strict legal grounds, the fact that Jewish settlements were protected during the military operation, whereas Bedouin villages were not, is a setback in the struggle to make the Bedouin citizens with equal rights in Israeli society. As the Court held, ‘Beyond their protective function, the Migunit [Protective Structures] may make a moral and psychological contribution that should not be undervalued’. This contribution is one that the Bedouin did not receive in the Abu Afash verdict. The basic thesis is that the Court’s verdict analyzed above clearly demonstrates that the reliance on classical liberal instruments (e.g., equality) cannot secure full appreciation of all aspects of Bedouin life, and hence it can in fact prejudice them. Therefore, elements of the recognition theory should be added, in order to find the channel for cognitive dignity, thereby advancing the Bedouins’ ability to perceive themselves as equal human beings in the Israeli society.

Keywords: bedouin dispersion, cognitive respect, recognition theory, sustainable development

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Authors: Rafael Bezerra de Souza, José Ribas Vieira

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The judicial litigation on socio-economic rights (SERs), in a context of increasing centrality of the judiciary as an area of political debate for civil society actors, has assumed greater importance in the last two decades. This tendency to seek social change through the courts generated a long tradition of research on the role of legal institutions and of legal mobilization in the US and some European countries. However, little is known about these processes in Latin America, Asia and Africa. A significant portion of the Brazilian constitutional doctrine did not bother to investigate the phenomenon of constitutional judicial litigation of socio-economic rights, in a practical and empirical look, from the functioning of democratic institutions. The central issue of this study draws attention to the theoretical and analytic deficit of Brazilian constitutional doctrine: the lack of a holistic understanding of the effects and impact of judicial decisions. Consequently, for a proper understanding was analyzed if the trend of judicial litigation in Brazil - to ensure the fulfillment of its institutional mission to protect and ensure the effectiveness of socio-economic rights - has been accompanied by the establishment of institutional mechanisms that enable decision making and the implementation of SERs in complex cases involving structural and public policy. The lack of empirical studies in Law in order to verify this hypothesis justified the adoption of the case study method as an interdisciplinary methodological strategy between Law and Political Science, aiming to construct an explanation of the Raposa Serra do Sol Case and, in a complementary way, the process-tracing technique. Drawings of small-n type or case studies, when guided by theory, are more suitable to problems it is supposed to increase the potential of intensive analysis of causal processes. As a preliminary result, the Brazilian Supreme Court was not a sufficient agent to implement a relevant social change and to assure the protection of the social rights, because there were few measures that directly impacted the behavior of other institutional political actors and should, therefore, be considered another actor within a complex institutional arrangement.

Keywords: courts, case study, judicial litigation, social change

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Authors: Muhammad Muhammad Suleiman

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The Nigerian political system has witnessed rising occurrences of election malpractice in the last decade. This has been due to election rigging and other forms of electoral fraud. In order to find a sustainable solution to this malpractice, the introduction of electronic voting (e-voting) has been suggested. This paper reviews the challenges, benefits, and issues associated with e-voting as a panacea for election malpractice in Nigeria. The review of existing literature revealed that e-voting can reduce the cost of conducting elections and reduce the opportunity for electoral fraud. The review suggests that the introduction of e-voting in the Nigerian political system would require adequate cybersecurity measures, trust-building initiatives, and proper legal frameworks to ensure its successful implementation. It is recommended that there should be an effective policy that would ensure the security of the system as well as the credibility of the results. Furthermore, a comprehensive awareness campaign needs to be conducted to ensure that voters understand the process and are comfortable using the system. In conclusion, e-voting has the potential to reduce the occurrence of election malpractice in the Nigerian political system. However, the successful implementation of e-voting will require effective policy interventions and trust-building initiatives. Additionally, the costs of acquiring the necessary infrastructure and equipment and implementing proper legal frameworks need to be considered.

Keywords: electronic voting, general election, candidate, INEC, cyberattack

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Authors: Hamed Tofangsaz

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In the absence of an internationally agreed definition of terrorism, the question which needs to be posed is whether there is a clear and common understanding of what constitutes terrorism, terrorist acts and terrorist groups, the financing of which needs to be stopped. That is, from a criminal law perspective, whether the Terrorist Financing Convention, as the backbone of the counter-terrorist financing regime, clarifies what types of conduct, by who, in what circumstances and when, against whom (targets or victims) and with what intention or motivation should be considered terrorism? It will be explained how and why it has been difficult to reach an agreement on the definition of terrorism. The endeavour of the drafters of the Terrorist Financing Convention and others involved in countering terrorist financing to establish a general definition of terrorism will be examined. The record of attempts to define the elements of terrorism proves that it is hardly possible to reach an agreement on a generic definition of terrorism because the concept of terrorism is elusive and subject to various understandings. Even the definition provided by the Terrorist Financing Convention, is not convincing. With regard to the findings, this paper calls for further research on the legal consequences of the implementation of the terrorist financing-counter measures while the scope of terrorism, terrorist acts and terrorist organizations have been left vague.

Keywords: terrorism, terrorist financing, crime, convention

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Authors: Rose Hattab

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Women have been an important dynamic in religious context and the state-building process of Arab countries throughout history. During the 1970s as the movement for women’s activism and rights developed, the Iraqi state under the Ba’ath Party began to provide Iraqi women with legal and civil rights. This was done to liberate women from the grasps of social traditions and was a tangible espousing of equality between men and women in the process of nation-building. Whereas women’s rights were stronger and more supported throughout the earliest years of the Ba’ath Regime (1970-1990), the aftermath of the Gulf War and economic sanctions on the conditions of Iraqi society laid the foundation for a division of women’s rights between civil and religious authorities. Personal status codes that were secured in 1959 were being pushed back by amendments made in coordination with religious leaders. Civil laws were present on paper, but religious authority took prominence in practice. The written legal codes were inclusive of women’s rights, but there is not an active or ensured practice of these rights within Iraqi society. This is due to many different factors, such as religious, sectarian, political and conservative reasons that hold back or limit the ability for Iraqi women to have autonomy in aspects such as participation in the workforce, getting married, and ensuring social justice. This paper argues that the Personal Status Code introduced in 1959 – which replaced Sharia-run courts with personal status courts – provided Iraqi women with equality and increased mobility in social and economic dynamics. The statewide crisis felt after the Gulf War and the economic sanctions imposed by the United Nations led to a stark shift in the Ba’ath party’s political ideology. This ideological turn guided the social system to the embracement of social conservatism and religious traditions in the 1990s. The effect of this implementation continued after the establishment of a new Iraqi government during 2003-2005. Consequently, Iraqi women's rights in employment, marriage, and family became divided into paper and practice by religious authorities and civil law from that period to the present day. This paper also contributes to the literature by expanding on the gap between legal codes on paper and in practice, through providing an analysis of Iraqi women’s rights in the Iraqi Constitution of 2005 and Iraq’s Penal Code. The turn to conservative and religious traditions is derived from the multiplicity of identities that make up the Iraqi social fabric. In the aftermath of a totalitarian regime, active wars, and economic sanctions, the Iraqi people attempted to unite together through their different identities to create a sense of security in the midst of violence and chaos. This is not an excuse to diminish the importance of women’s rights, but in the process of building a new nation-state, women were lost from the narrative. Thus, the presence of gender equity is found in the written text but is not practiced and upheld in the social context.

Keywords: civil rights, Iraqi women, nation building, religion and conflict

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Authors: Hong-Nam Choi, Hyeong-Wook Song, Sungwan Hong, Hong-Kyu Kim

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In Korea, elements that decide the quality of residential environment are not only diverse, but show deviation as well. However, people do not consider these elements and instead, they try to settle the uniformed style of residential environment, which focuses on the construction development of apartment housing and business based plans. Recently, block-unit redevelopment is becoming the standout alternative plan of standardize redevelopment projects, but constructions become inefficient because of indefinite planning criteria. In conclusion, the following research is about analyzing and categorizing the development method and legal ground of redevelopment project district, plan determinant and applicable standard. The purpose of this study is to become a basis in compatible analysis of planning standards that will happen in the future.

Keywords: shape restrictions, improvement of regulation, diversity of residential environment, classification of redevelopment project, planning criteria of redevelopment, special architectural district (SAD)

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Authors: Amaliny Yoganathan-Hasselbeck

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Based on the assumption, that strategic licensing is more valuable and sustainable for the economy than a legal dispute and action for an injunction, the strategy of licensing in patent infringement cases was studied. A theoretical framework was developed based on the transaction costs approach, describing the major variables within the process of licensing to an alleged patent infringer. An exploratory case study analysis was conducted on the basis of expert interviews with patent licensing agencies, patent attorneys, licensing departments of companies and research institutions. Key findings define the major criteria in each step of the licensing process and include the factors determining the intensity of patent tracking e.g. patent policies, the decision criteria when dealing with patent infringement cases, e.g. market position and reputation, and the transaction itself starting with the initiation of the contact with the alleged patent infringer, negotiating the licensing contract and monitoring the license agreement.

Keywords: innovation, licensing, patent, patent infringement, strategy, technology

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Authors: Amós García Montaño

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In a democracy, a public policy must be developed within the regulatory framework and considering citizen participation in its planning, design, execution, and evaluation stages, necessary factors to have both legal support and sufficient legitimacy for its operation. However, the complexity and magnitude of certain public problems results in difficulties for the generation of consensus among society members, leading to unstable and unsuccessful scenarios for the exercise of the right to citizen participation and the generation of effective and efficient public policies. This is the case of public policies against corruption, an issue that in Mexico is difficult to define and generates conflicting opinions. To provide a possible solution to this delicate reality, this paper analyzes the principle of reasonableness as a tool for identifying the basic elements that guarantee a fundamental level of the exercise of the right to citizen participation in the fight against corruption, adopting elements of human rights indicator methodologies. In this sense, the relevance of having a legal framework that establishes obligations to incorporate proactive and transversal citizen participation in the matter is observed. It is also noted the need to monitor the operation of various citizen participation mechanisms in the decision-making processes of the institutions involved in the fight and prevention of corruption, which lead to an increase in the improvement of the perception of the citizen role as a relevant actor in this field. It is concluded that the principle of reasonableness is presented as a very useful tool for the identification of basic elements that facilitate the fulfillment of human rights commitments in the field of public policies.

Keywords: anticorruption, public participation, public policies, reasonableness

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Authors: Wasantha Subasinghe

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Crimes are one of big social problems in Sri Lanka. Crimes can be seen as simply way as an activity that against for the society or public law. There are offences in minor crimes and grave crimes including murder, rape, trafficking, robbery, excise, narcotic, kidnapping and so on. There are various forms of punishment such as bailing, fining, and prisoning to the death penalty. Death penalty contains the killing of an offender for an offense. There are 23 prison institutions in Sri Lanka including 03 closed prisoners and 20 remand prisons. There are 10 work camps, 02 open prison camps, 01 training school for youthful offenders and 02 correctional centers for youthful offenders. Capital punishment is legal in Sri Lanka as many other countries as India, Japan, Bangladesh, Iran and Iraq so on. When compared unconvicted prisoners from 2006-2010 there is an increase. It was 89190 in 2006 and it was 100191 in 2010. There were 28732 of convicted prisoners and it was 32128 in 2010. There were 165 Death sentences in 2006 and it was 96 in 2010. There are 540 individuals had been sentenced to death. The death penalty has not been implemented in Sri Lanka since 1976. Research problem: What are the feelings of prisoners as waiting for death?’ Objectives of the study were identifying prisoners’ point of view on their punishment and root causes for their offence. Case studies were conducted to identify the research problem and data were collected using formal interviews. Research area was Welikada prison. Stratified sampling method in probability samplings was used. Sample size was 20 cases from death penalty and life in prison prisoners and 20 from other convicted prisoners. Findings revealed causes and feelings them as offenders. They need if death penalty or freedom. Some of them need to convert death sentence to life imprisonment. They are physically and mentally damaged after their imprisonment. Lack of hope and as well as lack of welfare and rehabilitation programs they suffered their lives.

Keywords: death penalty, expectations, life imprisonment, rehabilitation

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Authors: Liya Abraham

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Eritrea is located along the Red Sea, north of the Horn of Africa, between Djibouti and Sudan and has a population of about 3.2 million as of 2010. It has six administrative regions; Anseba, Debub, Debubawi K’eyih Bahri, Gash-Barka, Ma'akel, and Semenawi K’eyih Bahri. Eritrea has got its independence in 1991 after 30 years war of liberation. The country is blessed with various medicinal flora and fauna, and marine and terrestrial biodiversity. Traditional Medicine (TM) has been an integral part of the Eritrean culture for centuries. So far, more than 19 TM modalities have been recognized, and are broadly categorized as; herbal, procedure-based and spiritual. Despite the availability of modern medicine to the majority of the population, TM is still widely practiced. The rationale behind widespread use is accessibility, affordability and cultural acceptability. Hence, TM is of great contribution to the Eritrean health care system. As a matter of fact, harnessing the potential contribution of effective and safe TM in order to attain Universal Health Coverage (UHC) has been emphasized in the WHO TM strategy 2014-2023. The Eritrean TM, however, was operating without regulation and reliable scientific justification behind its safety and efficacy. Thus, the Ministry of Health (MoH), in recognition of the role of TM in primary healthcare and safeguard public health, established a regulatory body for TM so-called as Traditional Medicine Unit (TMU) in 2012. The mission of the unit is to ensure rational TM use through an integrated health service delivery system and contribute to the country’s economic and social development. The unit has established its national TM policy in 2017. The activities of the unit are guided by the National TM Advisory Committee (TMAC), responsible for the provision of technical assistance and advisory role. Moreover, the Legal Framework and Code of Ethics and Practice which provide a legal basis for the regulation of TM have also been drafted. In recognition of the importance of TM research and development, the unit launched a nationwide TM survey in 2017 and had surveyed two zones (Gash-Barka and Debub). The findings of the survey were subjected to a research dissemination workshop and publication in international journals. Furthermore, TM-related adverse events reporting tool (Green Form) aiming to guide regulatory interventions and researches have been established by the unit, and ever since reports are flowing. The unit has also been offering training to THPs, pharmacy students and health care professionals regarding TM and its regulatory activities. In addition, as part of the establishment of the national medicinal plants' database and herbal monograph, more than 329 and 30 medicinal plants, have been compiled respectively. In conclusion, TM is still widely accepted and practiced in Eritrea. The TMU ever since its establishment is endeavoring to ensure the safety and efficacy of the TM, and its integration in the mainstream health service delivery system.

Keywords: efficacy, regulation, safety, traditional medicine, traditional medicine unit, universal health coverage

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Authors: Julian David Rios Acuna

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This paper seeks to argue that the phenomenon of ‘paramilitarism’ in Colombia exhibits the role of violence as constitutive of the political process of state formation in the country. In order to do this, it takes as its point of departure a landmark moment in the long history of private armies known as the ‘paramilitary’ in Colombia. In 2001, paramilitary commanders, politicians, and members of the military and other branches of state power singed what is known as the ‘Pact of Ralito.’ In this pact, the paramilitary appropriated constitutional and legal language. The paper argues that this appropriation shows that the paramilitary and the state express the same claim to sovereign power and therefore have the same foundation. More precisely, paramilitary power shows itself to base its power on the same foundation as the legal order, namely, extreme forms of violence where death is generative of power. In this sense, the paper shows how, by sharing its foundation, Colombian paramilitarism exhibits that state power in Colombia can be characterized as necro-power as Achille Mbembe understands it. The paper argues that paramilitarism shows state power as necro-power by constituting itself as a symptom understood, following Zizek, as that which both shows and overthrows its own foundation. In this way, paramilitarism shows the foundation of the state, thereby reconfiguring this very state. This reconfiguration, explicitly based on necro-power, the paper concludes, transforms the state into a form more appropriate to the political demands of neo-liberalism. By exhibiting its foundation in necro-power through paramilitarism, the Colombian State turns from a liberal into a (neo)liberal democracy.

Keywords: necro-power, necropolitics, paramilitarism in Colombia, state formation, state power, sovereign power

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Authors: Elizabeth Snyman-Van Deventer

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Numerous corporate scandals, which included investment scams, corporate malfeasance, unethical conduct and conflicts of interest, contributed to the collapse of WorldCom, Global Crossing, Xerox, Tyco, Enron, Sprint, AbbVie and Imclone and led to alarmed investors abandoning public securities markets and the tumbling of U.S stock markets. These companies suffered significant financial losses due to substantial and fraudulent misstatements and other illegal, corrupt or unethical practices. Executives were convicted of fraud and sentenced to prison. The corporate financial scandals, governance failures, and the ensuing public outcries led to mandatory legislation, e.g. the Sarbanes-Oxley Act in the USA. In European corporate scandals such as Parmalat, Royal Dutch Ahold, Vivendi, Adecco and Elan, the boards missed financial misrepresentations. In South Africa, Steinhoff is the most well-known example of corporate collapse, but now we can also add Tongaat Hulett. It seems as if fraud and corruption may be the major sources of these corporate collapses. In most instances, there is either the active involvement of the directors and managers in these fraudulent or corrupt practices, or there is a negligent or even intentional failure to act by directors to prevent these activities. However, besides directors and managers, auditors and lawyers failed in most of these companies to fulfil their professional duties. In most of these major collapses, the ethics of especially auditors and directors could be questioned. This paper will first provide a brief overview of corporate collapses. Secondly, the reasons for these collapses, with a focus on unethical conduct, will be discussed.

Keywords: professional duties, corporate collapses, ethical conduct, legal ethics, directors, auditors

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Authors: Csilla Paksi-Petró

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The Hungarian national public administration training system providing continuous, lifelong further training to some ten thousand executives in public administration was launched in 2014, adding skills and competency development to the previous training solutions, which had a mainly legal and professional approach. The executive training system is being continuously developed since tackling the existing qualitative, and quantitative challenges calls for the introduction of novel, innovative solutions. With a gap-filling character, this study presents, in brief, the last eight years of system of executive training in public administration, supported by the outcomes of the author's empirical research, makes suggestions for the possible directions of its further development. Through this article, the reader may obtain an overview of the current Hungarian civil service further training system, its institution system, the method of its application, its target groups, its results, and its development prospects. By reading the article, the reader will get acquainted with the good practices of the Hungarian civil service further training system.

Keywords: coaching, e-learning, executive development, further-training

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Authors: Mahdi Karimi

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One of the most basic standards of fair trial is the right to defense, hire an attorney and its presence in the hearing stages. On the one hand, based on the reason and justice, as the legal issues, particularly criminal affairs, become complicated, the accused must benefit from an attorney in the court in order to defend itself which requires legal knowledge. On the other hand, as the judicial system has jurists such as investigation judges at its disposal, the accused must enjoy the same right to defend itself and reject allegations so that the balance is maintained between the litigating parties based on the principle of "equality of arms". The right to adequate time and facilities for defense is cited among the principles and rights relevant to the proceedings in international regulations such as the International Covenant on Civil and Political Rights. The innovations made in the Code of Criminal Procedure in 2013 guaranteed the presence of the accused’s attorney in the proceedings. The present study aims at assessing the result of the aforementioned guarantee in practice and made attempts to investigate the effect of the presence of accused’s attorney on reducing the punishment by asking the question and addressing the statistical population of this study including 48 judges of lower courts and courts of appeal. It seems that in despite of guarantees provided in the new Code of Criminal Procedure, Iran's penal system, does not tolerate the presence of an attorney in practice.

Keywords: defense attorney, equality of arms, fair trial, reducing the penalty, right to defense

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Authors: Ana M. Prieto del Pino

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As is well known, UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) was a landmark regarding the seizure of proceeds of crime. Depriving criminals of the profits from their activity became a priority at an international level in the fight against organised crime. Enabling confiscation of proceeds of illicit traffic in narcotic drugs and psychotropic substances, criminalising money laundering and confiscating the proceeds thereof are the three measures taken in order to achieve that purpose. The beginning of 21st century brought the declaration of war on corruption and on the illicit enjoyment of the profits thereof onto the international scene. According to the UN Convention against Transnational Organised Crime (2000), States Parties should adopt the necessary measures to enable the confiscation of proceeds of crime derived from offences (or property of equivalent value) and property, equipment and other instrumentalities used in offences covered by that Convention. The UN Convention against Corruption (2003) states asset recovery explicitly as a fundamental principle and sets forth measures aiming at the direct recovery of property through international cooperation in confiscation. Furthermore, European legislation has made many significant strides forward in less than twenty years concerning money laundering, confiscation, and asset recovery. Crime does not pay, let there be no doubt about it. Nevertheless, we must be very careful not to sing out of tune with individual rights and legal guarantees. On the one hand, innocent individuals and businesses must be protected, since they should not pay for the guilty ones’ faults. On the other hand, the rule of law must be preserved and not be tossed aside regarding those who have carried out criminal activities. An in-depth analysis of judicial decisions on money laundering and confiscation of proceeds of crime issued by European national courts and by the European Court of Human Rights in the last decade has been carried out from a human rights, legal guarantees and criminal law basic principles’ perspective. The undertaken study has revealed the violation of the right to property, of the proportionality principle legal and the infringement of basic principles of states’ domestic substantive and procedural criminal law systems. The most relevant ones have to do with the punishment of money laundering committed through negligence, non-conviction based confiscation and a too-far reaching interpretation of the notion of ‘proceeds of crime’. Almost everything in life has a bright and a dark side. Confiscation of criminal proceeds and asset recovery are not an exception to this rule.

Keywords: confiscation, human rights, money laundering, organized crime

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Authors: Yuanyi (Richard) Fang

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Under the theory of La Porta, Lopez-de-Silanes, Shleifer, and Vishny, if a country can increase its legal protections for minority shareholders, the country can develop an ideal securities market that only arises under the dispersed ownership corporate governance. However, the path-dependence scholarship, such as Lucian Arye Bebchuk and Mark J. Roe, presented a different view with LLS&V. They pointed out that the initial framework of the ownership structure and traditional culture will prevent the change of the corporate governance structure through legal reform. This paper contends that traditional culture factors as an important aspect when forming the corporate governance structure. However, it is not impossible for the government to change its traditional corporate governance structure and traditional culture because the culture does not remain intact. Culture evolves with time. The occurrence of the important events will affect the people’s psychological process. The psychological process affects the evolution of culture. The new cultural norms can help defeat the force of the traditional culture and the resistance from the initial corporate ownership structure. Using Taiwan as an example, through analyzing the historical background, related corporate rules and the reactions of adoption new rules from the media, this paper try to show that Taiwan’s culture norms do not remain intact and have changed with time. It further provides that the culture is not always the hurdle for the adoption of the dispersed ownership corporate governance structure as the culture can change. A new culture can provide strong support for the adoption of the new corporate governance structure.

Keywords: LLS&V theory, corporate governance, culture, path–dependent theory

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Authors: H. Florianová, J. Nešleha

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Financial derivatives are considered to be risky investment instruments which could possibly bring another financial crisis. As prevention, European Union and its member states have released new legal acts adjusting this area of law in recent years. There have been several cases in history of capital markets worldwide where it was shown that legislature may affect behavior of subjects on capital markets. In our paper we analyze main events on selected European stock exchanges in order to apply them on three chosen markets - Czech capital market represented by Prague Stock Exchange, German capital market represented by Deutsche Börse and Polish capital market represented by Warsaw Stock Exchange. We follow time series of development of the sum of listed derivatives on these three stock exchanges in order to evaluate popularity of those exchanges. Afterwards we compare newly listed derivatives in relation to the speed of development of these exchanges. We also make a comparison between trends in derivatives and shares development. We explain how a legal regulation may affect situation on capital markets. If the regulation is too strict, potential investors or traders are not willing to undertake it and move to other markets. On the other hand, if the regulation is too vague, trading scandals occur and the market is not reliable from the prospect of potential investors or issuers. We see that making the regulation stricter usually discourages subjects to stay on the market immediately although making the regulation vaguer to interest more subjects is usually much slower process.

Keywords: capital markets, financial derivatives, investors' behavior, regulation

Procedia PDF Downloads 247

Authors: B. Self, V. Fleming, C. Maxwell

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The fourth clause of the UK 1967 Abortion Act allows individuals (including health care practitioners) to conscientiously object to participating in an abortion. Individuals are able to object if they consider that participating is incompatible with their religious, moral, philosophical, ethical, or personal beliefs. Currently, there is no research on service users’ opinions and understandings of conscientious objection or the impact of conscientious objection from the UK service users’ perspective. This perspective is imperative in understanding the real-world consequences and impact of conscientious objection and essential when creating policy and guidelines. This qualitative research took a liberal feminist approach. It provided a platform for service users to share their experiences of abortion and conscientious objection, as well as their opinions and understandings of conscientious objection. The method employed was semi-structured interviews. Findings indicated that conscientious objection could work in practice. However, it is currently failing some individuals, as health care practitioners are not always referring and informing service users. Participants didn’t experience burdens such as long waiting times and were still able to access legal abortion. However, participants did experience negative emotional effects, as they were often left feeling scared, angry, and hopeless when they were not referred. Moreover, participants’ opinions on conscientious objection in the UK varied greatly. The majority supported the most common approach within the literature and in practice, whereby health care practitioners are able to object so long as they refer and inform the service user. However, the opinion that health care practitioners should not be allowed to object or should be able to object without referring and informing was also present. Without this research, the impact that conscientious objection is having on service users in the UK and service users’ opinions on conscientious objection wouldn’t be known. These findings will be used to inform national policy and guidelines, making access to abortion fairer and safer for all.

Keywords: conscientious objection, abortion, medical ethics, reproductive justice

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Authors: Mehari Teshome, Lara Agostini, Anna Nosella

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The current knowledge-based economy extends intellectual property rights (IPRs) legal research themes into a more strategic and organizational perspectives. From the diverse types of IPRs, patents are the strongest and well-known form of legal protection that influences commercial success and market value. Indeed, from our pilot survey, we understood that firms are less likely to manage their patents and actively used it as a tool for achieving competitive advantage rather they invest resource and efforts for patent application. To this regard, the literature also confirms that insights into how firms manage their patents from a holistic, strategic perspective, and how the portfolio value of patents can be optimized are scarce. Though patent management is an important business tool and there exist few scales to measure some dimensions of patent management, at the best of our knowledge, no systematic attempt has been made to develop a valid and comprehensive measure of it. Considering this theoretical and practical point of view, the aim of this article is twofold: to develop a framework for patent management encompassing all relevant dimensions with their respective constructs and measurement items, and to validate the measurement using survey data from practitioners. Methodology: We used six-step methodological approach (i.e., specify the domain of construct, item generation, scale purification, internal consistency assessment, scale validation, and replication). Accordingly, we carried out a systematic review of 182 articles on patent management, from ISI Web of Science. For each article, we mapped relevant constructs, their definition, and associated features, as well as items used to measure these constructs, when provided. This theoretical analysis was complemented by interviews with experts in patent management to get feedbacks that are more practical on how patent management is carried out in firms. Afterwards, we carried out a questionnaire survey to purify our scales and statistical validation. Findings: The analysis allowed us to design a framework for patent management, identifying its core dimensions (i.e., generation, portfolio-management, exploitation and enforcement, intelligence) and support dimensions (i.e., strategy and organization). Moreover, we identified the relevant activities for each dimension, as well as the most suitable items to measure them. For example, the core dimension generation includes constructs as: state-of-the-art analysis, freedom-to-operate analysis, patent watching, securing freedom-to-operate, patent potential and patent-geographical-scope. Originality and the Study Contribution: This study represents a first step towards the development of sound scales to measure patent management with an overarching approach, thus laying the basis for developing a recognized landmark within the research area of patent management. Practical Implications: The new scale can be used to assess the level of sophistication of the patent management of a company and compare it with other firms in the industry to evaluate their ability to manage the different activities involved in patent management. In addition, the framework resulting from this analysis can be used as a guide that supports managers to improve patent management in firms.

Keywords: patent, management, scale, development, intellectual property rights (IPRs)

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Authors: Maria Lubomira Kubica

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The paper reveals the birth and evolution of the British precedent Rylands v. Fletcher that, once adopted on the other side of the Ocean (in United States), gave rise to a general clause of liability for abnormally dangerous activities recognized by the §20 of the American Restatements of the Law Third, Liability for Physical and Emotional Harm. The main goal of the paper was to analyze the development of the legal doctrine and of the case law posterior to the precedent together with the intent of the British judicature to leapfrog from the traditional rule contained in Rylands v. Fletcher to a general clause similar to that introduced in the United States and recently also on the European level. As it is well known, within the scope of tort law two different initiatives compete with the aim of harmonizing the European laws: European Group on Tort Law with its Principles of European Tort Law (hereinafter PETL) in which article 5:101 sets forth a general clause for strict liability for abnormally dangerous activities and Study Group on European Civil Code with its Common Frame of Reference (CFR) which promotes rather ad hoc model of listing out determined cases of strict liability. Very narrow application scope of the art. 5:101 PETL, restricted only to abnormally dangerous activities, stays in opposition to very broad spectrum of strict liability cases governed by the CFR. The former is a perfect example of a general clause that offers a minimum and basic standard, possibly acceptable also in those countries in which, like in the United Kingdom, this regime of liability is completely marginalized.

Keywords: abnormally dangerous activities, general clause, Rylands v. Fletcher, strict liability

Procedia PDF Downloads 189

Authors: Oluchukwu P. Obioma, Amarachi R. Dike

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Competition law promotes market competition by regulating anti-competitive conduct by undertakings. There is a need for a third party to regulate the market for efficiency and supervision, since, if the market is left unchecked, it may be skewed against the consumers and the economy. Competition law is geared towards the protection of consumers from economic exploitation. It is the duty of every rational government to optimally manage its economic system by employing the best regulatory practices over the market to ensure it functions effectively and efficiently. The Nigerian government has done this by enacting the Federal Competition and Consumer Protection Act, 2018 (FCCPA). This is a comprehensive legal framework with the objective of governing competition issues in Nigeria. Prior to its enactment, the competition law regime in Nigeria was grossly inadequate despite Nigeria being the biggest economy in Africa. This latest legislation has become a bold step in the right direction. This study will use the doctrinal methodology in analyzing the FCCPA, 2018 in order to discover the extent to which the Act will guard against anti-competitive practices and promote competitive markets for the benefit of the Nigerian economy and consumers. The study finds that although the FCCPA, 2018 provides for the regulation of competition in Nigeria, there is a need to effectively tackle the challenges to the implementation of the Act and the development of anti-trust jurisprudence in Nigeria. This study concludes that incisive implementation of competition law in Nigeria will help protect consumers and create a conducive environment for economic growth, development, and protection of consumers from obnoxious competition practices.

Keywords: anti-competitive practices, competition law, competition regulation, consumer protection.

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Authors: Klaudia Krogulec

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The concept and the meaning of safety is largely undermined in International and EU refugee law. While the Geneva Convention 1951 concentrates mainly on the principle of non-refoulment (no-return) and the idea of physical safety of refugees, countries continue to implement harmful readmission agreements that presume ‘safe countries’ for the hosting and return of the refugees. This research intends to use discourse analysis of the legal provisions and interviews with Syrian refugees, NGO workers, and refugee lawyers in Tukey to understand what ‘safety’ actually means and how law shapes the experiences of Syrians in Turkey (the country that hosts the largest population of Syrians and is a key partner of the EU-Turkey Agreement 2016). The preliminary findings reveal the competing meanings of safety (rights-based vs state interests approach). As the refugee policies continue to prioritize state interests/safety over human safety and human rights, it is extremely important to provide recommendations on how ‘safety’ should be defined in the refugee law in the future.

Keywords: human rights law, refugee law, human safety, EU-turkey agreement

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Authors: Cinzia Valente

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Over the last few years, national legislators have been forced to deal with social changes that have had important repercussions in family law and children’s law. This growing focus on minors has provoked important reforms, specifically on issues relating to the welfare and protection of children. My presentation focuses on the issue of migrant children in particular I refer to unaccompanied children, or ‘children on the move’, or separate children or any other term defining migrant minors who cross national borders seeking protection or better opportunities. They arrive often illegally, on the European territory without a responsible adult who take care of them. There is a common assumption that migrants are running away from conflicts, poverty and human rights abuse and they arrive in a foreign country hoping a better life; children without persons who takes care of them encounter some difficulties in their integration in the host country. The migration flows recorded in recent decades towards EU countries, and Italy in particular, have imposed an intense pressure to modernize institutions, services and specific legal frameworks, with the aim of responding adequately to the needs of foreign individuals, as well as ensuring a good level of living standards and facilitating integration, especially for migrant children. The object of my paper is the analysis of the Italian rules, practices and services existing in favor of unaccompanied children (foster care, reunification, acquisition of citizenship and other) in comparison with other European legal systems on the same thematic with a comparative method. Highlighting European standards to find common principles for the best solution to children's problems is the conclusive aim of my presentation.

Keywords: Children , Family Law, Migration , Uniform Law

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Authors: Mehmet Durnali

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The main purpose of this study is to find out, analyze and discuss basic principles of education and training in the constitutions, including the latest amendment, of France, Indonesia, Japan, South Africa, the United States of America, and Turkey. This research specifically aims at establishing a framework in order to compare educational values such as right of education, responsibilities of states and those of people, and other issues pertaining to education in the Constitution of Turkey to others. Additionally, it emphasizes the meaning of education in constitution, the reasons for references to education in constitutions and why it is important for people, states or nations and state organs. Qualitative analysis technique is performed to accomplish the aim of this study. Maximum variation sampling is used. The main data source of the analysis is official organic laws of those countries. The data is examined by using descriptive and content analysis method.

Keywords: education in the constitution, education law, legal principles of education, right to education

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Authors: Po-Fang Hsu, Chiching Wei

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In this paper, we present a novel neural graph matching approach applied to document comparison. Document comparison is a common task in the legal and financial industries. In some cases, the most important differences may be the addition or omission of words, sentences, clauses, or paragraphs. However, it is a challenging task without recording or tracing the whole edited process. Under many temporal uncertainties, we explore the potentiality of our approach to proximate the accurate comparison to make sure which element blocks have a relation of edition with others. In the beginning, we apply a document layout analysis that combines traditional and modern technics to segment layouts in blocks of various types appropriately. Then we transform this issue into a problem of layout graph matching with textual awareness. Regarding graph matching, it is a long-studied problem with a broad range of applications. However, different from previous works focusing on visual images or structural layout, we also bring textual features into our model for adapting this domain. Specifically, based on the electronic document, we introduce an encoder to deal with the visual presentation decoding from PDF. Additionally, because the modifications can cause the inconsistency of document layout analysis between modified documents and the blocks can be merged and split, Sinkhorn divergence is adopted in our neural graph approach, which tries to overcome both these issues with many-to-many block matching. We demonstrate this on two categories of layouts, as follows., legal agreement and scientific articles, collected from our real-case datasets.

Keywords: document comparison, graph matching, graph neural network, modification similarity, multi-modal

Procedia PDF Downloads 156