Search results for: common law legal system

Authors: Emre Bayamlıoğlu

Abstract:

This paper aims to provide an account of the legal and the regulative aspects of the algorithmic reputation systems with a special emphasis on the sharing economy (i.e., Uber, Airbnb, Lyft) business model. The first section starts with an analysis of the legal and commercial nature of the tripartite relationship among the parties, namely, the host platform, individual sharers/service providers and the consumers/users. The section further examines to what extent an algorithmic system of reputational information could serve as an alternative to legal regulation. Shortcomings are explained and analyzed with specific examples from Airbnb Platform which is a pioneering success in the sharing economy. The following section focuses on the issue of governance and control of the reputational information. The section first analyzes the legal consequences of algorithmic filtering systems to detect undesired comments and how a delicate balance could be struck between the competing interests such as freedom of speech, privacy and the integrity of the commercial reputation. The third section deals with the problem of manipulation by users. Indeed many sharing economy businesses employ certain techniques of data mining and natural language processing to verify consistency of the feedback. Software agents referred as "bots" are employed by the users to "produce" fake reputation values. Such automated techniques are deceptive with significant negative effects for undermining the trust upon which the reputational system is built. The third section is devoted to explore the concerns with regard to data mobility, data ownership, and the privacy. Reputational information provided by the consumers in the form of textual comment may be regarded as a writing which is eligible to copyright protection. Algorithmic reputational systems also contain personal data pertaining both the individual entrepreneurs and the consumers. The final section starts with an overview of the notion of reputation as a communitarian and collective form of referential trust and further provides an evaluation of the above legal arguments from the perspective of public interest in the integrity of reputational information. The paper concludes with certain guidelines and design principles for algorithmic reputation systems, to address the above raised legal implications.

Keywords: sharing economy, design principles of algorithmic regulation, reputational systems, personal data protection, privacy

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Authors: Valentina Dotto

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Climate change cases used to take the form of statutory disputes rather than constitutional or common law disputes. This changed in 2015, with the Urgenda Climate case in the Netherlands (Urgenda Foundation v. The State of the Netherlands, C/09/456689/HAZA 13-1396) and, the Juliana case in the U.S. (United States v. U.S. District Court for District of Oregon, 17-71692, 9th Cir.). The two cases represent a new type of climate litigation, the claims brought against the federal government were in fact grounded in constitutional rights. The complaints used the Doctrine of Public Trust as a cornerstone for the lawsuits asserting that government's actions against climate change failed to protect essential public trust resources; thus, violating a generation's constitutional rights to life, liberty, and property. The Public Trust Doctrine –a quintessentially American legal concept-, reserved to the States by virtue of the 9th and 10th amendment of the federal Constitution, gives them considerable jurisdiction over natural resources and has been refined by a number of Supreme Court rulings. The Juliana case exemplifies the Doctrine’s evolutionary nature because it attempts to apply it to the federal government, and establish a right to a climate system capable of sustaining human life as a fundamental right protected by a substantive due process. Furthermore, the flexibility of the Doctrine makes it permissible to be applied to a variety of different legal systems as in the Urgenda case. At the very heart of the lawsuits stands the question of who owns the Earth resources and, to what extent the general public can claim the services that the Earth provides as common property. By employing the widest possible definition of the Doctrine of Public Trust these lawsuits tried to redefine environmental resources as a collective right of all people. By doing case analysis, the paper explores how these cases can contribute to widening the public access to information and broadening the public voice in decision making as well as providing a precedent to equal access in seeking justice and redress from environmental failures.

Keywords: climate change, doctrine of public trust, environmental democracy, Juliana case, Urgenda climate case

Procedia PDF Downloads 152

Authors: Mohammad Sadeghi, Mahdieh Saniee

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Nowadays, development laws have become a major branch of engineering science, laws help humankind achieve his/her basic needs, and it is attracted to the attention of the nations. Therefore, lawyers have been invited to contemplate legislator's approaches respecting legislating countries' economic, social and cultural development plans and to observe the reliance of approaches on two elements of distributive justice and transitional justice in light of legal rationality. Legal rationality in development planning has encountered us with this question that whether a rational approach and existing models in the Iran development planning system approximate us to the goal of development laws respecting the rationalist approach and also regarding wisely decision-making model. The present study will investigate processes, approaches, and damages of development planning in the legislation of country development plans to answer this question.

Keywords: rationality, decision-making process, policymaking, development

Procedia PDF Downloads 89

Authors: Aulia Rosa Nasution

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This research aims to analyze the involvement of the Indonesian Armed Forces in overcoming terrorism acts under legal perspectives based on Acts No. 34 of 2004, which regulates the role and mechanism of the Indonesian Armed Forces in combating terrorism. The main question of this research is, firstly, the military authority in combating terrorism acts, secondly, the implementation of Acts Number 34/2000, and thirdly, law enforcement to combat terrorism under national and international law. The methodology of this research is juridical normative based on the legal instruments and legal principles, and international norms. The result of this study explains the involvement of the Indonesian Army in combating terrorism as a part of the nonmilitary operation which has been implemented in Indonesia as part of national defence and security.

Keywords: acts of terrorism, Indonesian armed forces, legal protection

Procedia PDF Downloads 90

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: L. Edirisinghe, P. Mukherjee, H. Edirisinghe

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Virtual Container Yard (VCY) is a modern concept that helps to reduce the empty container repositioning cost of carriers. The concept of VCY is based on container interchange between shipping lines. Although this mechanism has been theoretically accepted by the shipping community as a feasible solution, it has not yet achieved the necessary momentum among container shipping lines (CSL). This paper investigates whether there is any legal influence on this industry myopia about the VCY. It is believed that this is the first publication that focuses on the legal aspects of container exchange between carriers. Not much literature on this subject is available. This study establishes with statistical evidence that there is a phobia prevailing in the shipping industry that exchanging containers with other carriers may lead to various legal implications. The complexity of exchange is two faceted. CSLs assume that offering a container to another carrier (obviously, a competitor in terms of commercial context) or using a container offered by another carrier may lead to undue legal implications. This research reveals that this fear is reflected through four types of perceived components, namely: shipping associate; warehouse associate; network associate; and trading associate. These components carry eighteen subcomponents that comprehensively cover the entire process of a container shipment. The statistical explanation has been supported through regression analysis; INCO terms were used to illustrate the shipping process.

Keywords: virtual container yard, legal, maritime law, inventory

Procedia PDF Downloads 139

Authors: Yuval Sinai

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As part of the historical, religious and cultural heritage of the Jewish people, Jewish law is part of the legal system in Israel, which is a Jewish and democratic state. The proper degree of use of Jewish law in judicial decisions is an issue that crops up in Israeli law from time to time. This was a burning question in the 1980s in the wake of the enactment of the Foundations of Law Act 1980, which declared Jewish heritage a supplementary legal method to Israeli law. The enactment of the Basic Law: Human Dignity and Liberty 1992, which decreed that the basic Israeli legal principles must be interpreted in light of the values of a Jewish and democratic state, marks a significant change in the impact of Judaism in the law created and applied by the courts. Both of these legislative developments revived the initiative to grant a central status to Jewish law within the state law. How should Jewish law be applied in Israel’s secular courts? This is not a simple question. It is not merely a question of identifying the relevant rule of Jewish law or tracing its development from the Talmud to modern times. Nor is it the same as asking how a rabbinic court would handle the issue. It is a matter of delicate judgment to distill out of the often conflicting Jewish law sources a rule that will fit into the existing framework of Israeli law so as to advance a policy that will best promote the interests of Israel’s society. We shall point out the occasional tensions between Jewish religious law and secular law, and introduce opinions as to how reconciliation of the two can best be achieved in light of Jewish legal tradition and in light of the reality in the modern State of Israel.

Keywords: law and religion, israel, jewish law, law and society

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Authors: Moh Rizaldi, Ali Abdurachman, Indra Perwira

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The biggest demonstration after the 1998 reforms that took place in Indonesia for several days at the end of 2019 did not eliminate the intention of the People’s Representative Council (Dewan Perwakilan Rakyat or DPR) and the President to enact the law 19 of 2019 (KPK law). There is a central issue to be highlighted, namely whether the change is intended to strengthen or even weaken the KPK. To achieve this goal, the Analysis focuses on two agency principles namely the independent principle and the control principle as seen from three things namely the legal substance, legal structure, and legal culture. The research method is normative with conceptual, historical and statute approaches. The argument from this writing is that KPK Law has cut most of the KPK's authority as a result the KPK has become symbolic or toothless in combating corruption.

Keywords: control, independent, KPK, law no. 19 of 2019

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Authors: Pujiyono, Reda Manthovani, Deny Tri Ardianto, Rabani Halawa, Isharyanto

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This research has background that the taxpayer (defendant) who has paid off the tax payable and the tax penalty payable after the tax case file has been transferred to the court, while the legality of stopping the prosecution of tax cases on the grounds that in the interest of state revenue is not regulated in the provisions of Law Number 8 of 1981 concerning The Criminal Procedure Code and Law Number 28 of 2007 concerning the Third Amendment to Law Number 6 of 1983 concerning General Provisions and Tax Procedures as amended several times, most recently by Law Number 16 of 2009 concerning Stipulation of Government Regulation in Lieu of Law Number 5 of 2008 concerning Fourth Amendment to Law Number 6 0f 1983 concerning General Provisions and Tax Procedures to become Law, even though at the investigation stage it regulates the mechanism for stopping the investigation for the sake of the interest of acceptance ne this is because before the case file is transferred to the court where at the request of the Minister of Finance of The Republic of Indonesia can stop the investigation in the interest of state revenue so that based on this phenomenon a legal vacuum is found. Therefore, a non-penal policy is needed from the public prosecutor to resolve tax crime cases without going through litigation in court through the penal mediation method using the Plea Bargaining System which adheres to the principles of restorative justice and obligative justice based on the ultimum remedium principle and the principle of opportunity in order to realize the principle of fast, simple and low cost justice (content principle). This research is a normative legal research, using a statutory approach, conceptual approach, and comparative law approach. Regulations that is used in many countries, include America, The Netherlands and Singapore. The results of this study indicate that there is a reformulation of the tax criminal justice system which regulates the mechanism, qualifications and authority to terminate the prosecution of tax cases in the interest of state revenues in order to achieve legal goals which are not only for legal certainty but more that, namely providing benefits and legal justice for people seeking justice.

Keywords: obligative justice, regulation, state reveneus, tax criminal

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Authors: Sonia Mannan, M. Jobair Alam

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The concept of palliative care in Bangladesh largely remained limited to the sympathetic caring of patients with a life-limiting illness. Quality of Life (QoL) issues are rarely practiced in Bangladesh. Furthermore, palliative medicine, in the perspective of holistic palliative care service, does not have its proper recognition in Bangladesh. Apart from those socio-medical aspects, palliative care patients face legal issues that impact their quality of life, including access to health services and social benefits and dealing with other life-transactions of the patients and their families (such as disposing of property; planning for children). This paper is an attempt to articulate these legal dimensions of the right to palliative care in the context of Bangladesh. The major focus of this paper will be founded on the doctrinal analysis of the constitutional provisions and other relevant legislation on the right to health and their judicial interpretation, which is argued to offer a meaningful space for the right to palliative care. This paper will also investigate the gaps in the said legal framework to better secure such care. In conclusion, a few recommendations are made so that the palliative care practices in Bangladesh are better aligned with international standards, and it can respond more humanely to the patients who need palliative care.

Keywords: Bangladesh, constitution, legal regime, palliative care, quality of life

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Authors: Khaleed Alsufyyan

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This doctoral research has been successfully approved by a specialist upgrade panel, and it presents the proposition that the KSA policy for combating maritime terrorism is inadequate and current governance frameworks, including laws, are insufficiently developed to respond effectively and fairly to maritime terrorism. It will examine the legal system in the KSA in terms of effectiveness fairness, as well as investigate this proposition to determine what factors have contributed to such a deficiency. The main focus of this research will draw upon the policies, laws, and practices of the KSA, as well as UK and international laws and policies, to assess whether it is feasible to apply them in the context of the KSA. This thesis will recommend strategies regarding maritime terrorism to enrich the legal and policy frameworks and address the current and future dynamics of maritime terrorism adequately. To derive suitable improvements, UK policies, laws, and practices will be considered for policy transfer purposes. As for studies focused on the KSA, since the KSA is a Muslim state, it will be important to assess the impact of Islamic Law or Sharia Law subject to the doctrines of fairness and effectiveness to comprehend how the KSA’s legal system operates and determine the boundaries it sets for the response to maritime terrorism. This thesis will propose that more reforms are needed to effectively and fairly deal with maritime terrorism based on the prevailing understanding of Sharia law. The research will address the international perspectives on the problem of maritime terrorism and international cooperation of the KSA regarding maritime terrorism and consider the need for further developments.

Keywords: maritime terrorism, maritime security, combat maritime terrorism in the KSA, protecting maritime transport against terrorism

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Authors: Deborah Garcia-Magna

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The use of new technologies has become widespread in the last decade, giving rise to various risks associated with the transfer of personal data and the publication of sensitive material on social media. There are already several supranational instruments that seek to protect the citizens involved in this growing traffic of personal information and, especially, the most vulnerable people, such as minors, who are also the ones who make the most intense use of these new means of communication. In this sense, the configuration of the concept of privacy as a legal right has necessarily been influenced by these new social uses and supranational instruments. The researcher considers correct the decision to introduce sexting as a new criminal behaviour in the Penal Code in 2015, but questions the concrete manner in which it has been made. To this end, an updated review of the various options that our legal system already offered is made, assessing whether these legal options adequately addressed the new social needs and guidelines from jurisprudence and other supranational instruments. Some important issues emerge as to whether the principles of fragmentarity and subsidiarity may be violated since the new article 197.7 of the Spanish Penal Code could refer to very varied behaviours and protect not only particularly vulnerable persons. In this sense, the research focuses on issues such as the concept of 'seriousness' of the infringement of privacy, the possible reckless conduct of the victim, who hang over its own private material to third parties, the affection to other legal rights such as freedom and sexual indemnity, the possible problems of concurrent offences, etc.

Keywords: criminal law reform, ECHR jurisprudence, right to privacy, sexting

Procedia PDF Downloads 173

Authors: Naeem Ullah Khan, Kalsoom Khan

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No state can be progressive and prosperous in which a large number of people is deprived of their basic economic rights and freedoms. In the contemporary world of globalization, the right to development has gained a momentum force in the domain of International Development Law (IDL) and has integrated into the National Legal System (NLS) of the major developed states. The international experts on human rights argued that the right to development (RTD) is called a third-generation human right which tends to enhance the welfare and prosperity of individuals, and thus, it is a right to a process whose outcomes are human rights despite the controversy on the implications of RTD. In the Pakistan legal system, the RTD has not been expressly stated in the constitution of the Islamic Republic of Pakistan, 1973. However, there are some implied constitutional provisions which reflect the concept of RTD. The jurisprudence on RTD is still an evolving paradigm in the contextual perspective of Pakistan, and the superior court of diverse jurisdiction acts as a catalyst regarding the protection and enforcement of RTD in the interest of the public at large. However, the case law explores the positive inclination of the courts in Pakistan on RTD be incorporated as an express provision in the chapters of fundamental rights; in this scenario, the high court’s of Pakistan under Article 199 and the supreme court of Pakistan under Article 184(3) have exercised jurisdiction on the enforcement of RTD. This paper inter-alia examines the national dimensions of RTD from the standpoint of state practice in Pakistan and it analyzes the experience of judiciary in the protection and enforcement of RTD. Moreover, the paper highlights the social and cultural challenges to Pakistan in the implementation of RTD and possible solution to improve the conditions of human rights in Pakistan. This paper will also highlight the steps taken by Pakistan regarding the awareness, incorporation, and propagation of RTD at the national level.

Keywords: globalization, Pakistan, RTD, third-generation right

Procedia PDF Downloads 135

Authors: Yuval Sinai

Abstract:

As part of the historical, religious and cultural heritage of the Jewish people, Jewish law is part of the legal system in Israel, which is a Jewish and democratic state. The proper degree of use of Jewish law in judicial decisions is an issue that crops up in Israeli law from time to time. This was a burning question in the 1980s in the wake of the enactment of the Foundations of Law Act 1980, which declared Jewish heritage a supplementary legal method to Israeli law. The enactment of the Basic Law: Human Dignity and Liberty 1992, which decreed that the basic Israeli legal principles must be interpreted in light of the values of a Jewish and democratic state, marks a significant change in the impact of Judaism in the law created and applied by the courts. Both of these legislative developments revived the initiative to grant a central status to Jewish law within the state law. How should Jewish law be applied in Israel’s secular courts? This is not a simple question. It is not merely a question of identifying the relevant rule of Jewish law or tracing its development from the Talmud to modern times. Nor is it the same as asking how a rabbinic court would handle the issue. It is a matter of delicate judgment to distill out of the often conflicting Jewish law sources a rule that will fit into the existing framework of Israeli law so as to advance a policy that will best promote the interests of Israel’s society. We shall point out the occasional tensions between Jewish religious law and secular law, and introduce opinions as to how reconciliation of the two can best be achieved in light of Jewish legal tradition and in light of the reality in the modern State of Israel.

Keywords: law and politics, law and religion, comparative law, law and society

Procedia PDF Downloads 49

Authors: A. G. Matveev

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The copyrights system is a combination of different elements. The number, content and the correlation of these elements are different for different legal orders. The models of copyrights systems display this system in terms of the interaction of economic and author's moral rights. Monistic and dualistic models are the most popular ones. The article deals with different points of view on the monism and dualism in copyright system. A specific model of the copyright in Switzerland in the XXth century is analyzed. The evolution of a French dualistic model of copyright is shown. The author believes that one should talk not about one, but rather about a number of dualism forms of copyright system.

Keywords: copyright, exclusive copyright, economic rights, author's moral rights, rights of personality, monistic model, dualistic model

Procedia PDF Downloads 401

Authors: Alexander Machikhin, Olga Polschikova, Vitold Pozhar, Alina Ramazanova

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White-light quantitative phase imaging is an effective technique for achieving sub-nanometer phase sensitivity. Highly stable interferometers based on common-path geometry have been developed in recent years to solve this task. Some of these methods also apply multispectral approach. The purpose of this research is to suggest a simple and effective interferometer for such systems. We developed a three-lens common-path interferometer, which can be used for quantitative phase imaging with or without multispectral modality. The lens system consists of two components, the first one of which is a compound lens, consisting of two lenses. A pinhole is placed between the components. The lens-in-lens approach enables effective light transmission and high stability of the interferometer. The multispectrality is easily implemented by placing a tunable filter in front of the interferometer. In our work, we used an acousto-optical tunable filter. Some design considerations are discussed and multispectral quantitative phase retrieval is demonstrated.

Keywords: acousto-optical tunable filter, common-path interferometry, digital holography, multispectral quantitative phase imaging

Procedia PDF Downloads 286

Authors: Husam Kaid, Abdulrahman Al-Ahmari, Zhiwu Li

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This paper develops a robust deadlock control technique for shared and unreliable resources in automated manufacturing systems (AMSs) based on structural analysis and colored Petri nets, which consists of three steps. The first step involves using strict minimal siphon control to create a live (deadlock-free) system that does not consider resource failure. The second step uses an approach based on colored Petri net, in which all monitors designed in the first step are merged into a single monitor. The third step addresses the deadlock control problems caused by resource failures. For all resource failures in the Petri net model a common recovery subnet based on colored petri net is proposed. The common recovery subnet is added to the obtained system at the second step to make the system reliable. The proposed approach is evaluated using an AMS from the literature. The results show that the proposed approach can be applied to an unreliable complex Petri net model, has a simpler structure and less computational complexity, and can obtain one common recovery subnet to model all resource failures.

Keywords: automated manufacturing system, colored Petri net, deadlocks, siphon

Procedia PDF Downloads 106

Authors: Amjaad Alsalamah, Liyakathunsia Syed

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Transportation is an essential need for many people to go to their work, school, and home. In particular, the main common method inside many cities is to drive the car. Driving a car can be an easy job to reach the destination and load all stuff in a reasonable time. However, deciding to find a parking lot for a car can take a long time using the traditional system that can issue a paper ticket for each customer. The old system cannot guarantee a parking lot for all customers. Also, payment methods are not always available, and many customers struggled to find their car among a numerous number of cars. As a result, this research focuses on providing an online smart parking system in order to save time and budget. This system provides a flexible management system for both parking owner and customers by receiving all request via the online system and it gets an accurate result for all available parking and its location.

Keywords: smart parking system, IoT, tracking system, process model, cost, time

Procedia PDF Downloads 314

Authors: Poulomi Bhadra, Manjushree Palit, Sanjeev P. Sahni

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Forensic science uses all branches of science for criminal investigation and trial and has increasingly emerged as an important tool in the administration of justice. However, the growth and development of this field in India has not been as rapid or widespread as compared to the more developed Western countries. For successful administration of justice, it is important that all agencies involved in law enforcement adopt an inter-professional approach towards forensic science, which is presently lacking. In light of the alarmingly high average acquittal rate in India, this study aims to examine the lack of understanding and appreciation of the importance and scope of forensic evidence and expert opinions amongst law professionals such as lawyers and judges. Based on a study of trial court cases from Delhi and surrounding areas, the study underline the areas in forensics where the criminal justice system has noticeably erred. Using this information, the authors examine the extent of forensic understanding amongst legal professionals and attempt to conclusively identify the areas in which they need further appraisal. A cross-sectional study done using a structured questionnaire was conducted amongst law professionals across age, gender, type and years of experience in court, to determine their understanding of DNA, fingerprints and other interdisciplinary scientific materials used as forensic evidence. In our study, we understand the levels of understanding amongst lawyers with regards to DNA and fingerprint evidence, and how it affects trial outcomes. We also aim to understand the factors that prevent credible and advanced awareness amongst legal personnel, amongst others. The survey identified the areas in modern and advanced forensics, such as forensic entomology, anthropology, cybercrime etc., in which Indian legal professionals are yet to attain a functional understanding. It also brings to light, what is commonly termed as the ‘CSI-effect’ in the Western courtrooms, and provides scope to study the existence of this phenomenon and its effects on the Indian courts and their judgements. This study highlighted the prevalence of unchallenged expert testimony presented by the prosecution in criminal trials and impressed upon the judicial system the need for independent analysis and evaluation of the scientist’s data and/or testimony by the defense. Overall, this study aims to define a clearer and rigid understanding of why legal professionals should have basic understanding of the interdisciplinary nature of forensic sciences. Based on the aforementioned findings, the author suggests various measures by which judges and lawyers might obtain an extensive knowledge of the advances and promising potentialities of forensic science. This includes promoting a forensic curriculum in legal studies at Bachelor’s and Master’s level as well as in mid-career professional courses. Formation of forensic-legal consultancies, in consultation with the Department of Justice, will not only assist in training police, military and law personnel but will also encourage legal research in this field. These suggestions also aim to bridge the communication gap that presently exists between law practitioners, forensic scientists and the general community’s awareness of the criminal justice system.

Keywords: forensic science, Indian legal professionals, interdisciplinary awareness, legal education

Procedia PDF Downloads 319

Authors: Vijayalaxmi Khopade

Abstract:

The Prima facie caste system is intrinsic to Indian society. It is an ancient system of intense social stratification based upon birth and enjoying religious sanction. The uppermost strata and privileges are ascribed and enjoyed by brahmins (priestly class), while the lowest strata are occupied by Dalits who are not ascribed with any privileges. The caste system is inherently hierarchical, patriarchal, and systematic and thrives solely on exploitation justified through means of the Brahminical system of hegemony based singularly on birth. The caste system has extended its tentacles to other religions like Christianity, Buddhism, Jainism, and Islam in South Asia. Term Dalit is colloquially used to categorize persons belonging to lower strata in the caste hierarchy. However, this category is heterogenous and highly stratified, following practices like untouchability and exclusion amongst themselves. The modern Indian legal system acknowledges the existence of Caste and its perils. Therefore, by virtue of the Indian Constitution, provisions for affirmative action for the protection and development of Dalits are made. Courts in India have liberally interpreted laws to benefit Dalits. However, the modern system of governance is not immune from Caste based biases. These biases are reflected in the implementation of governance, including the dispensation of justice. The economic reforms of the 1990s gave a huge boost to the Indian diaspora. Persons of Indian origin are now seen making great strides in almost every sector and enjoying positions of power globally. As one peels off the layer of ethnic Indian origin, a deep seated layer of Caste and Caste based patriarchy is clearly visible. Indian diaspora enjoying positions of power essentially belongs to upper castes and carry Caste based biases with them. These castes have long enjoyed the benefits of education; therefore, they were the first ones to benefit from LPG (Liberalization, Privatization, Globalization) model adopted in the 1990s. Dalits, however, had little formal education until recently. The western legal system, to the best of our knowledge, does not recognize Caste and, therefore, cannot afford protection for Dalits, wherein discrimination and exploitation take place solely on the basis of Caste. Therefore, Dalits are left with no legal remedy outside domestic jurisdiction. Countries like the UK have made an attempt to include Caste in their Equality Bill 2010. This has met with tough resistance from Upper caste Hindus who shy away from recognizing their caste privileges and, therefore, the existence of Caste. In this paper, an attempt for comparative analysis is made between various legal protections accorded to Dalits in India vis-à-vis international human rights as protected by the United Nations under its declaration of Universal Human rights. An attempt has been made to mark a distinction between race and Caste and to establish a position of women in Caste based hierarchy. The paper also makes an argument for the inclusion of atrocities committed against Dalits as a violation of international human rights, their protection by the United Nations, and the trial of their violations by International Courts. The paper puts into perspective the need for an external agency like the United Nations and International courts to interfere in rights guaranteed by the Indian Constitution, even with the existence of a modern legal system in a sovereign democratic country.

Keywords: atrocity, caste, diaspora, legal framework

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Authors: Filip Ščerba, Veronika Pochylá

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Performing of the acts within criminal proceedings usually takes too long and thus this phenomenon can be regarded as one of the most burning problems which have plagued the criminal justice not only in the Czech Republic but at least all over Europe for the last few decades. This problem obviously has to be dealt with and thus the need to tackle this issue has resulted in the trend which is sometimes called Criminal Justice Rationalization, i.e. introducing and enforcing methods supporting the increase in efficiency of the criminal justice in order to make the criminal proceedings shorter and administrative procedure easier. This resulted in the introduction of institutes such as e.g. diversions in criminal proceedings or other forms of shortened pre-trial proceedings, which may be used primarily for dealing with less serious crimes. But also the institute, which was originally mentioned in connection with the system of criminal law in the countries belonging to the Anglo-Saxon legal order where it is frequently called of plea bargaining, has been introduced into the criminal law of many European countries, and it may be applied also in cases of serious crimes. All these special and shortened forms of criminal proceedings are connected with limited extent of process of evidence; in fact, some of these specific forms of criminal proceedings are designed for the purpose to simplify the process of evidence. That is also the reason, why some of these procedures are conditioned with the defendant’s confession. Main hypothesis: Limited process of evidence represents also a potential conflict with certain fundamental principles upon which the criminal proceeding in the Continental legal system is based. (A conflict with principle of material truth may be considered as the most important problem. This principle states that the bodies in criminal proceedings must clarify the facts of the case beyond reasonable doubt to such extent that a decision can be made; the defendant’s confession does not mean that these bodies are freed from the duty to review all the circumstances and facts of the case. Such principle is typical for criminal law in Central European region.) Basic methodologies: The paper is going to analyze such a problem of weakening of the principle of material truth in modern criminal law. Such analysis will be provided primarily on the base of the Czech criminal law, but also other legal regulations will be taken into consideration, and its result may have some relevance for all legal regulations belonging to the Continental legal system, so the paper offers also a comparison with legal systems of other Central European countries.

Keywords: burden of proof, central European countries, criminal justice rationalization, criminal proceeding, Czech legislation, Czech republic, defendant, diversions, evidence, fundamental principles, plea bargaining, pre-trial proceedings, principle of material truth, process of evidence, process of evidence

Procedia PDF Downloads 262

Authors: Paiboon Chuwatthanakij

Abstract:

Each of the countries around the world has different ways of management and many of them depend on people to administrate their country. Thailand, for example, empowers the sovereignty of Thai people under constitution; however, our Thai voting system is not able to flow fast enough under the current Political management system. The sovereignty of Thai people is addressing this problem through representatives during current elections, in order to set a new policy for the countries ideology to change in the House and the Cabinet. This is particularly important in a democracy to be developed under our current political institution. The Organic Act on Political Parties 2007 is the establishment we have today that is causing confrontations within the establishment. There are many political parties that will soon be abolished. Many political parties have already been subsidized. This research study is to analyze the legal problems with the political party establishment under the Organic Act on Political Parties 2007. This will focus on the freedom of each political establishment compared to an effective political operation. Textbooks and academic papers will be referenced from studies home and abroad. The study revealed that Organic Act on Political Parties 2007 has strict provisions on the political structure over the number of members and the number of branches involved within political parties system. Such operations shall be completed within one year; but under the existing laws the small parties are not able to participate with the bigger parties. The cities are capable of fulfilling small political party requirements but fail to become coalesced because the current laws won't allow them to be united as one. It is important to allow all independent political parties to join our current political structure. Board members can’t help the smaller parties to become a large organization under the existing Thai laws. Creating a new establishment that functions efficiently throughout all branches would be one solution to these legal problems between all political parties. With this new operation, individual political parties can participate with the bigger parties during elections. Until current political institutions change their system to accommodate public opinion, these current Thai laws will continue to be a problem with all political parties in Thailand.

Keywords: coalesced, political party, sovereignty, elections

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Authors: William Thomas Worster

Abstract:

Diplomatic assurances issued by states declaring that they will not mistreat individuals returned to them occupy a strange middle ground between being legal and non-legal obligations. States assert that they are non-binding, yet at other times that they are binding. However, this assertion may not be the end of the discussion. The International Court of Justice and other tribunals have concluded that similar instruments were binding, states have disagreed that certain similar instruments were binding, and the Vienna Convention on the Law of Treaties and its travaux prépératoires do not appear to contemplate non-binding instruments. This paper is a case study of diplomatic assurances but, by necessity, touches on the delicate question of whether certain texts are treaties, promises, or non-binding political statements. International law, and law in general, requires a binary approach to obligation. All communications must be binding or not, even if the fit is not precise. Through this study, we will find that some of the obligations in certain assurances can be understood as legal and some not. We will attempt to state the current methodology for determining which obligations are legal under the law of treaties and law on binding unilateral promises. The paper begins with some background of the legal environment of diplomatic assurances and their use in cases of expulsion. The paper then turns to discuss the legal nature of diplomatic assurances, proceeding to address various possibilities for legal value as treaties and as binding unilateral statements. This paper will not examine the legal value of diplomatic assurances solely under customary international law other than the way in which customary international law might further refine the treaty definition. In order to identify whether any assurances are contained in legal acts, this study identifies a pool of relevant assurances and qualitatively analyzes whether any of those are contained in treaties or binding unilateral statements. To the author’s best knowledge, this study is the first large-scale, qualitative qualitative analysis of assurances as a group of instruments that accounts for their heterogenous nature. It is also the first study to identify the indicators of whether an instrument is a treaty or promise.

Keywords: diplomatic assurances, deportation, extradition, expulsion, non-refoulement, torture, persecution, death penalty, human rights, memorandum of understanding, promises, secret, monitoring, compliance, enforcement

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Authors: Amira M. Othman

Abstract:

Despite the massive array of literature that engages with the Egyptian legislative system on a theoretical level, very little attention has been dedicated to the comparison between the legislative clauses on the one hand, and the (absence of their) real-world implementation on the other. This paper starts with this discrepancy, focusing on the legal proceedings in some recent cases dubbed ‘political,’ in which defendants received death sentences. Then, it sheds light on the trend of practical disregard of the law on behalf of the criminal justice apparatuses (whether security forces, public prosecution offices, lawyers, judges, prison wardens, and executioners) through the examination of case files and the conduction of interviews with some defense lawyers in the cases in question. It also identifies the resultant state of confusion among prison staff, as manifest in their treatment of defendants even before the death sentences against them is pronounced; in other words, the application of some aspects of the law in certain cases, and their simultaneous disregard of others. Then, the paper explores the effects of such execution of the law on the death row inmates, as it identifies the different strategies through which defendants who are sentenced to death appropriate a number of legal clauses to their benefit, thereby embarrassing - or highly irritating - the judges that pronounce their death sentences. In addition to appropriation, other strategies include the contestation of the law and their presence before the courts in general, as well as the complete disregard and dismissal of the legal system altogether. Finally, the paper investigates the consequent conceptual effect on the first degree families of death row inmates, namely how their daily encounters with the Egyptian legislative system - particularly its emphasis on the absence of the otherwise binding local legislation - continue to shape their conceptions of the ‘law,’ of ‘justice,’ and their trust in the ‘state.’

Keywords: death penalty, Egyptian law absence, justice, political cases

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Authors: Veli Durmus, Mert Uydaci

Abstract:

Every patient who needs to get a medical treatment should share health-related personal data with healthcare providers. Therefore, personal health data plays an important role to make health decisions and identify health threats during every encounter between a patient and caregivers. In other words, health data can be defined as privacy and sensitive information which is protected by various health laws and regulations. In many cases, the data are an outcome of the confidential relationship between patients and their healthcare providers. Globally, almost all nations have own laws, regulations or rules in order to protect personal data. There is a variety of instruments that allow authorities to use the health data or to set the barriers data sharing across international borders. For instance, Directive 95/46/EC of the European Union (EU) (also known as EU Data Protection Directive) establishes harmonized rules in European borders. In addition, the General Data Protection Regulation (GDPR) will set further common principles in 2018. Because of close policy relationship with EU, this study provides not only information on regulations, directives but also how they play a role during the legislative process in Turkey. Even if the decision is controversial, the Board has recently stated that private or public healthcare institutions are responsible for the patient call system, for doctors to call people waiting outside a consultation room, to prevent unlawful processing of personal data and unlawful access to personal data during the treatment. In Turkey, vast majority private and public health organizations provide a service that ensures personal data (i.e. patient’s name and ID number) to call the patient. According to the Board’s decision, hospital or other healthcare institutions are obliged to take all necessary administrative precautions and provide technical support to protect patient privacy. However, this application does not effectively and efficiently performing in most health services. For this reason, it is important to draw a legal framework of personal health data by stating what is the main purpose of this regulation and how to deal with complicated issues on personal health data in Turkey. The research is descriptive on data protection law for health care setting in Turkey. Primary as well as secondary data has been used for the study. The primary data includes the information collected under current national and international regulations or law. Secondary data include publications, books, journals, empirical legal studies. Consequently, privacy and data protection regimes in health law show there are some obligations, principles and procedures which shall be binding upon natural or legal persons who process health-related personal data. A comparative approach presents there are significant differences in some EU member states due to different legal competencies, policies, and cultural factors. This selected study provides theoretical and practitioner implications by highlighting the need to illustrate the relationship between privacy and confidentiality in Personal Data Protection in Health Law. Furthermore, this paper would help to define the legal framework for the health law case studies on data protection and privacy.

Keywords: data protection, personal data, privacy, healthcare, health law

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Authors: Amy Gooden

Abstract:

Despite its prevalence, direct-to-consumer genetic testing (DTC-GT) remains under-investigated in South Africa (SA), and the issue of regulation is yet to be examined. Therefore, this research maps the current legal landscape relating to DTC-GT in SA through a legal analysis of the extant law relevant to the industry and the issues associated therewith – with the intention of determining if and how DTC-GT is legally governed. This research analyses: whether consumers are legally permitted to collect their saliva; whether DTC-GT are medical devices; licensing, registering, and advertising; importing and exporting; and genetic research conducted by companies.

Keywords: direct-to-consumer genetic testing, genetic testing, health, law, regulation, South Africa

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Authors: B. Unnikrishnan, Tanuj Kanchan, Ramesh Holla, Nithin Kumar

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Euthanasia has been debated for the ethical, legal, social, and religious implications associated with it. The present research was conducted to study the perceptions of doctors and nurses about ethical and legal aspects of Euthanasia in Indian scenario. The study was carried out at three tertiary care hospitals of Kasturba Medical College (KMC), Mangalore, India. Practicing doctors and nurses working in the hospitals associated with KMC were included in the study after taking written informed consent from the participants. The data was analyzed using SPSS version 11.5. Mann-Whitney U test was used to compare the responses of doctors and nurses. P-value of <0.05 was taken as statistically significant. A total of 144 doctors and nurses participated in the study. Both doctors and nurses agreed that if a terminally ill patient wishes to die, the wish cannot be honored ethically and legally. A significantly larger number of nurses agreed that patient’s wish for euthanasia cannot be honored ethically and legally when compared to the doctors. Though the doctors and nurses were broadly in agreement with the existing legal and ethical views on the issue, their knowledge on the issue with regard to the legal status of euthanasia in India and ethical aspects relating to it needs to be strengthened.

Keywords: euthanasia, ethical aspects, legal aspects, India

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Authors: Magda Olesiuk-Okomska

Abstract:

The degree of international interdependence has grown significantly. Poland is a party to nearly 1000 binding multilateral treaties, including international legal instruments devoted to criminal matters and obliging the state to penalize certain crimes. The paper presents results of a theoretical research conducted as a part of doctoral research. The main hypothesis assumed that there was a separate category of crimes to penalization of which Poland was obliged under international legal instruments; that a catalogue of such crimes and a catalogue of international legal instruments providing for Poland’s international obligations had never been compiled in the domestic doctrine, thus there was no mechanism for monitoring implementation of such obligations. In the course of the research, a definition of transnational crimes was discussed and confronted with notions of international crimes, treaty crimes, as well as cross-border crimes. A list of transnational crimes penalized in the Polish Penal Code as well as in non-code criminal law regulations was compiled; international legal instruments, obliging Poland to criminalize and penalize specific conduct, were enumerated and catalogued. It enabled the determination whether Poland’s international obligations were implemented in domestic legislation, as well as the formulation of de lege lata and de lege ferenda postulates. Implemented research methods included inter alia a dogmatic and legal method, an analytical method and desk research.

Keywords: international criminal law, transnational crimes, transnational criminal law, treaty crimes

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Authors: Rukhsana Shaheen, Tahira Ifraq

Abstract:

Interest based transactions led the advent of Islamic banking. In order to provide an alternative to Interest based banking, financial transactions found in classical books of fiqh were employed. Musharakah, Mudarabah, Murabahah Salam, Ijara, and some other modes were adopted. These modes were modified so that they can be adopted for banking and satisfy the needs of customers. Since the inception of Islamic banking, these modes are being used and with the passage of time, are being molded and experimented with to cater different kinds of customers and requirements. Human efforts cannot be errorless. These modes too bear legal defects which need an in-depth scrutiny and refinement. The aim of this paper is to dig the basis and rulings of these modes in classical books of fiqh and analyze its modification and adoption in Islamic banking and the legal defects that these modes are bearing. Paper will prove itself fruitful by providing remedies for the legal defects.

Keywords: financial instruments, legal defects, remedies, Islamic banking

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Authors: Adejoke Omowumi Adediran

Abstract:

The commitment of African states to liberalise civil aviation in Africa through the implementation of the Yamoussoukro Decision of 1999 was reiterated in 2015 at the African Union Assembly meeting. A declaration was made by African Heads of government at the meeting to ensure the immediate implementation of the decision towards the establishment of a Single African Air Transport Market (SAATM) by 2017. A SAATM will imply among others, a removal of all commercial restrictions for African airlines in Africa; access to any route in Africa by African airlines without any required permit or authorisation; and a common set of regulations for airlines in African member states. As the envisioned 2017 date for launching the SAATM could not be met, a new date of January 2018 has been set. The lack of political will by African States, however, remains a prominent challenge to the realisation of the SAATM. As at June 2017, only twenty-one states had signed the commitment to actualise the decision creating the SAATM. In actualisation of the SAATM, a regulatory framework has been established to efficiently manage the new African airline industry, and regulatory texts have been adopted as part of the legal regime. This legal regime is to regulate both interstate and domestic operations. Airlines in Nigeria are currently faced with certain challenges which ultimately affect their effectiveness and passengers as well do not enjoy utmost customer satisfaction with services rendered by the airlines. Although Nigeria has demonstrated support for the SAATM since 2015, as Nigeria alongside ten other states, signed the initial commitment, whether or not SAATM will eventually be beneficial to airlines and passengers has become an issue in the light of the challenges of the Nigerian airline industry. Remarkably, the benefit of the SAATM is to a large extent ultimately determined by its legal framework. Using doctrinal research, this paper examines the legal implications of the SAATM on airlines and passengers in Nigeria. This paper analyses the legal framework of SAATM and juxtaposes this with the particular issues affecting airlines and passengers in Nigeria such as financial difficulties on the part of airlines and consumer protection as regards passengers. Among others, it can be asserted that the legal regime affords an opportunity for business expansion and creates a fair environment for competition. This is beneficial not only to the airlines but to passengers as well. In addition, in the interest of passengers, consumer rights are prescribed, and the regulations also cater for situations where airlines interrupt their services, as losses arising from these situations will be mitigated. There is indeed no doubt that the SAATM will be of great utility to both airlines and passengers in Nigeria.

Keywords: airlines, civil aviation, competition, consumer protection, passengers, single African air transport market, yamoussoukro decision

Procedia PDF Downloads 114