Search results for: administrative court

Authors: Aleksandra Czubak

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The need to present evidence in civil proceedings is essential for getting the right result. It is for this reason that it is particularly important for the parties to present the most relevant and convincing evidence to the Court. Therefore, parties often try to gain evidence, even when the acquisition of such evidence is in breach of the law. Firstly, there will be discussed how evidence is applied in the Polish civil process and the Polish regulations of the evidence proceedings; with specific reference to evidence of major importance in the developing world. Further, it will be discussed the controversies connected with the admission of illegally gained evidence in civil proceedings. The credibility of the various measures is circumstantial and can only be determined by factors related to the recognized problem. For that reason, it is not the amount of evidence, but the value and relevance of this evidence that should be considered in determining the right result. This paper will also consider whether the end justifies the means? How far should parties go in order to achieve a favorable sentence or to create stronger evidence? Methods of persuasion of the court, as well as the acquisition of evidence, are not always fair and moral. It is on this area of controversy that this essay will focus. This paper concludes by considering the value of evidence and the possibility of using it to achieve a just sentence. Examples are based on Polish law; nevertheless, they encompass ideas common to most civil jurisdictions.

Keywords: civil proceedings, Europe (Poland), evidence, law

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Authors: Lauren Freed

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This research proposal outlines an examination of homeschool oversight in the Massachusetts educational system amid the backdrop of ideological differences between various parties with contributing interests. This mixed methodology study will follow an interpretive policy research approach, involving the use of existing data, surveys, and focus groups. The aim is to capture distinct sets of meanings, values, feelings, and beliefs by principal stakeholders, while exploring the ways in which they/each interact with, interpret, and implement homeschool guidelines set forth by the Massachusetts Supreme Judicial Court Decision Care and Protection of Charles (1987). This analysis will identify and contextualize the attitudes, administrative choices, financial implications, and educational impacts that result from the process and practice of enacting current homeschool oversight policy in Massachusetts. The following question will guide this study: How do districts, homeschooling parents, and Massachusetts Department of Elementary and Secondary Education (DESE) regulate, fund, collect, interpret, implement and report Massachusetts homeschool oversight policy? The resulting analysis will produce a unique and original baseline snapshot of qualitative and quantifiable point-in-time data based on the registered homeschool population in the state of Massachusetts.

Keywords: alternative education, homeschooling, home education, home schooling policy

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Authors: Zaid Haris

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Since the beginning of time, transgender people have faced difficult circumstances, particularly in Pakistan. They have experienced discrimination, physical abuse, sexual assault, and murder in their lives. In response to their complaints, the Pakistani Supreme Court established a landmark that enables them to participate in society on an equal base. As a result, transgendered people living all around Pakistan have seen their legal, political, and cultural advocacy blossom since 2009. In order to provide and defend the human rights of Pakistan's transgender persons, this paper aims to identify and analyse the constitutional and legal framework set out there. The Supreme Court's momentous decision sparked legal reform in the nation for these rights, most notably the Transgender Persons (Protection of Rights) Act of 2017, a bill that was filed in Parliament. The implementation of the rights granted to transgender people in Pakistan, whether it relates to education, health, or any other area, requires close inspection. Additionally, for society to be accepting and inclusive, a significant and radical change in behaviour is required. This paper also includes the interviews of a few transgenders from Pakistan.

Keywords: discrimination, islam, pakistan, physical abuse, sexual assault, transgenders

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Authors: Henrique Rangel, Alexandre Fadel, Igor De Lazari, Bianca Neri, Carlos Bolonha

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This paper promotes a comparative analysis of American and Brazilian models of federalism assuming their levels of political centralization as main criterion. The central problem faced herein is the Brazilian approach of Unitarian regime. Although the hegemony of federative form after 1989, Brazil had a historical frame of political centralization that remains under the 1988 constitutional regime. Meanwhile, United States framed a federalism in which States absorb significant authorities. The hypothesis holds that the amount of alternative criteria of federalization – which can generate political centralization –, and the way they are upheld on judicial review, are crucial to understand the levels of political centralization achieved in each model. To test this hypothesis, the research is conducted by a methodology temporally delimited to 1994-2014 period. Three paradigmatic precedents of U.S. Supreme Court were selected: United States vs. Morrison (2000), on gender-motivated violence, Gonzales vs. Raich (2005), on medical use of marijuana, and United States vs. Lopez (1995), on firearm possession on scholar zones. These most relevant cases over federalism in the recent activity of Supreme Court indicates a determinant parameter of deliberation: the commerce clause. After observe the criterion used to permit or prohibit the political centralization in America, the Brazilian normative context is presented. In this sense, it is possible to identify the eventual legal treatment these controversies could receive in this Country. The decision-making reveals some deliberative parameters, which characterizes each federative model. At the end of research, the precedents of Rehnquist Court promote a broad revival of federalism debate, establishing the commerce clause as a secure criterion to uphold or not the necessity of centralization – even with decisions considered conservative. Otherwise, the Brazilian federalism solves them controversies upon in a formalist fashion, within numerous and comprehensive – sometimes casuistic too – normative devices, oriented to make an intense centralization. The aim of this work is indicate how jurisdictional federalism found in United States can preserve a consistent model with States robustly autonomous, while Brazil gives preference to normative mechanisms designed to starts from centralization.

Keywords: constitutional design, federalism, U.S. Supreme Court, legislative authority

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Authors: M Jeffri Arlinandes Chandra, Puwaningdyah Murti Wahyuni, Dewi Mutiara M Jeffri Arlinandes Chandra, Puwaningdyah Murti Wahyuni, Dewi Mutiara

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Indonesia is a state of the law in accordance with article 1 paragraph 3 of the Constitution of the Republic of Indonesia (1945 Constitution), namely, 'the State of Indonesia is a state of law'. The consequences of the rule of law are making the law as the main commanding officer or making the law as a basis for carrying out an action taken by the state. The types of regulations and procedures for the formation of legislation in Indonesia are contained in Law Number 12 of 2011 concerning the Formation of Legislation. Various attempts were made to make quality regulations both in the formal hierarchy and material hierarchy such as synchronization and harmonization in the formation of laws and regulations so that there is no conflict between equal and hierarchical laws, but the fact is that there are still many conflicting regulations found between one another. This can be seen clearly in the many laws and regulations that were sued to judicial institutions such as the Constitutional Court (MK) and the Supreme Court (MA). Therefore, it is necessary to have a formulation regarding the governance of the formation of laws and regulations so as to minimize the occurrence of lawsuits to the court so that positive law can be realized which can be used today and for the future (ius constituendum). The research method that will be used in this research is a combination of normative research (library research) supported by empirical data from field research so that it can formulate concepts and answer the challenges being faced. First, the structuring of laws and regulations in Indonesia must start from the inventory of laws and regulations, whether they can be classified based on the type of legislation, what are they set about, the year of manufacture, etc. so that they can be clearly traced to the regulations relating to the formation of laws and regulations. Second, the search and revocation/revocation of laws and regulations that do not exist in the state registration system. Third, the periodic evaluation system is carried out at every level of the hierarchy of laws and regulations. These steps will form an ideal model of laws and regulations in Indonesia both in terms of content and material so that the instructions can be codified and clearly inventoried so that they can be accessed by the wider community as a concrete manifestation of the principle that all people know the law (presumptio iures de iure).

Keywords: legislation, review, evaluation, reconstruction

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Authors: M. van der Bank, C. M. van der Bank

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Alternative Dispute Resolution denotes all forms of dispute resolution other than litigation or adjudication through the courts. This definition of Alternative Dispute Resolution, however, makes no mention of a vital consideration. ADR is the generally accepted acronym for alternative dispute resolution. Despite the choice not to proceed before a court or statutory tribunal, ADR will still be regulated by law and by the Constitution. Fairness is one of the core values of the South African constitutional order. Environmental disputes occur frequently, but due to delays and costs, ADR is a mechanism to resolve this kind of disputes which is a resolution of non-judicial mechanism. ADR can be used as a mechanism in environmental disputes that are less expensive and also more expeditious than formal litigation. ADR covers a broad range of mechanisms and processes designed to assist parties in resolving disputes creatively and effectively. In so far as this may involve the selection or design of mechanisms and processes other than formal litigation, these mechanisms and processes are not intended to supplant court adjudication, but rather to supplement it. A variety of ADR methods have been developed to deal with numerous problems encountered during environmental disputes. The research questions are: How can ADR facilitate environmental disputes in South Africa? Are they appropriate? And what improvements should be made?

Keywords: alternative dispute, environmental disputes, non-judicial, resolution and settlement

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Authors: Tobias Milz, L. Macpherson, Varvara Vetrova

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The law is a fundamental pillar of human societies as it shapes, controls and governs how humans conduct business, behave and interact with each other. Recent advances in computer-assisted technologies such as NLP, data science and AI are creating opportunities to support the practice, research and study of this pervasive domain. It is therefore not surprising that there has been an increase in investments into supporting technologies for the legal industry (also known as “legal tech” or “law tech”) over the last decade. A sub-discipline of particular appeal is concerned with assisted legal research. Supporting law researchers and practitioners to retrieve information from the vast amount of ever-growing legal documentation is of natural interest to the legal research community. One tool that has been in use for this purpose since the early nineteenth century is legal citation indexing. Among other use cases, they provided an effective means to discover new precedent cases. Nowadays, computer-assisted network analysis tools can allow for new and more efficient ways to reveal the “hidden” information that is conveyed through citation behavior. Unfortunately, access to openly available legal data is still lacking in New Zealand and access to such networks is only commercially available via providers such as LexisNexis. Consequently, there is a need to create, analyze and provide a legal citation network with sufficient data to support legal research tasks. This paper describes the development and analysis of a legal citation Network for New Zealand containing over 300.000 decisions from 125 different courts of all areas of law and jurisdiction. Using python, the authors assembled web crawlers, scrapers and an OCR pipeline to collect and convert court decisions from openly available sources such as NZLII into uniform and machine-readable text. This facilitated the use of regular expressions to identify references to other court decisions from within the decision text. The data was then imported into a graph-based database (Neo4j) with the courts and their respective cases represented as nodes and the extracted citations as links. Furthermore, additional links between courts of connected cases were added to indicate an indirect citation between the courts. Neo4j, as a graph-based database, allows efficient querying and use of network algorithms such as PageRank to reveal the most influential/most cited courts and court decisions over time. This paper shows that the in-degree distribution of the New Zealand legal citation network resembles a power-law distribution, which indicates a possible scale-free behavior of the network. This is in line with findings of the respective citation networks of the U.S. Supreme Court, Austria and Germany. The authors of this paper provide the database as an openly available data source to support further legal research. The decision texts can be exported from the database to be used for NLP-related legal research, while the network can be used for in-depth analysis. For example, users of the database can specify the network algorithms and metrics to only include specific courts to filter the results to the area of law of interest.

Keywords: case citation network, citation analysis, network analysis, Neo4j

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Authors: A. V. Shashkova

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The aim of the present article is to analyze the position of the Constitutional Court of the Russian Federation on the matter of restricting the constitutional rights of citizens to inviolability of professional and banking secrecy in effecting controlling activities. The methodological ground of the present Article represents the dialectic scientific method of the socio-political, legal and organizational processes with the principles of development, integrity, and consistency, etc. The consistency analysis method is used while researching the object of the analysis. Some public-private research methods are also used: the formally-logical method or the comparative legal method, are used to compare the understanding of the ‘secrecy’ concept. The aim of the present article is to find the root of the problem and to give recommendations for the solution of the problem. The result of the present research is the author’s conclusion on the necessity of the political will to improve Russian legislation with the aim of compliance with the provisions of the Constitution. It is also necessary to establish a clear balance between the constitutional rights of the individual and the limit of these rights when carrying out various control activities by public authorities. Attempts by the banks to "overdo" an anti-money laundering law under threat of severe sanctions by the regulators actually led to failures in the execution of normal economic activity. Therefore, individuals face huge problems with payments on the basis of clearing, in addition to problems with cash withdrawals. The Bank of Russia sets requirements for banks to execute Federal Law No. 115-FZ too high. It is high place to attract political will here. As well, recent changes in Russian legislation, e.g. allowing banks to refuse opening of accounts unilaterally, simplified banking activities in the country. The article focuses on different theoretical approaches towards the concept of “secrecy”. The author gives an overview of the practices of Spain, Switzerland and the United States of America on the matter of restricting the constitutional rights of citizens to inviolability of professional and banking secrecy in effecting controlling activities. The Constitutional Court of the Russian Federation basing on the Constitution of the Russian Federation has its special understanding of the issue, which should be supported by further legislative development in the Russian Federation.

Keywords: constitutional court, restriction of constitutional rights, bank secrecy, control measures, money laundering, financial control, banking information

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Authors: Tugce Arslan

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For a communicative act to be carried out successfully, the speaker and the listener must consider certain principles in line with the intention–centered “Cooperative Principle” expressed by H. P. Grice. Violation of a communication principle causes the listener to make new inferences called “implicatures”. In this study, focusing on the linguistic use of H. P. Grice’s principles, we aim to find out which principles of conversation are generally followed in case files from different fields and which principles are frequently violated. Three case files were examined, and the violating and the abiding cases of the maxims were classified in terms of four categories (Quality, Quantity, Relevance and Manner). The results of this investigation is reported below (V: Violating, A: Abiding): Quality Quantity Relevance Manner V A V A V A V A Case 1 10 8 5 9 3 15 16 6 Case 2 4 5 11 6 2 11 7 14 Case 3 21 13 7 12 9 14 15 9 Total 35 26 23 27 14 40 38 29 The excerpts were selected from files covering three different areas: the Assize Court, the Family Court and the Commercial Court of First Instance. In this way, the relations between the types of violations and the types of courts are examined. Our main finding is that in the 1st and the 3rd file, as the cases of violation in “Quality” and “Manner” increase, the cases of violation in “Quantity” and “Relevance” decrease. In the second file, on the other hand, as the cases of violation in “Quantity” increase, the cases of violation in “Quality”, “Relevance” and “Manner” decrease. In the talk, we shall compare these results with the results obtained in the study of Tajabadi, Dowlatabadi, and Mehric (2014), which examined various case files in Iran. Our main finding is that in the study conducted in Iran, violations were found only on the principles of “Quantity” and “Relevance”, while violations were found on the principles of “Quality”, “Quantity” and “Manner” in this study. In this case, it shows us that there is a connection between at least two maxims. In both cases, it has been noticed that the “Quantity” maxim is a common denominator. Studies in this field can be enlightening for many areas such as discourse analysis, legal studies, etc. Accordingly, comments will be made about the nature of the violations mentioned in H. P. Grice’s “Cooperation Principle”. We shall also discuss various conversational practices that cannot be analysed with these maxims.

Keywords: comparative analysis, cooperation principle, forensic linguistics, pragmatic.

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Authors: Muhammad Iqbal Rachman, Mohammad Faisol Soleh

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The Law No. 26 Year 2000 about Indonesia’s Human Right Court became a new legal enforcement frame of human right law in Indonesia. The new spirit based on some international propulsion in order to enforce human right which basic right of everyone that appearance since in fetus. This matters indicated how crucial the arrangement of human right law, considering the role of state on human right enforcement in this context which became main pillar or instrument to accommodate citizen interest. Basically, the adopting of Law No. 26 Year 2000 came from the womb of concept international crimes regulation based on Rome Statute which became the international law instrument in order to legal enforce of international crimes. But in the other side, the enactment Rome Statute concept in Indonesia has facing with political and academics interest which resulted unaccommodating every type of international crimes in Law No. 26 Year 2000. The analyzing of political and academics background became the fundamental point to find out the solutions based on the regulation of Rome Statute concept matters in Indonesia.

Keywords: academic consideration, human right, political consideration, rome statute, unregulated concept

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Authors: Benjamin Newman

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The picture of an adverse contest between two parties has often been used as an archetypal description of the Anglo-American adversarial criminal trial. However, in actuality, guilty pleas and plea-bargains have been dominating the procedure for over the last half-a-century. Characterised by two adverse parties, the court adjudicative system in the Anglo-American world adhere to the adversarial procedure, and while further features have been attributed and the values that are embedded within the procedure vary, it is a system that we have no adequate theory. Damaska had argued that the adversarial conflict-resolution mode of administration of justice stems from a liberal laissez-faire concept of a value neutral liberal state. Having said that, the court’s neutrality has been additionally rationalised in light of its liberal end as a safeguard from the state’s coercive force. Both conceptions of the court’s neutrality conflict in cases where the by-standing role disposes of its liberal duty in safeguarding the individual. Such is noticeable in plea bargains, where the defendant has the liberty to plead guilty, despite concerns over wrongful convictions and deprivation of liberty. It is an inner liberal tension within the notion of criminal adversarialism, between the laissez-faire mode which grants autonomy to the parties and the safeguarding liberal end of the trial. Langbein had asserted that the adversarial system is a criminal procedure for which we have no adequate theory, and it is by reference to political and moral theories that the research aims to articulate a normative account. The paper contemplates on the above liberal-tension, and by reference to Duff’s ‘calling-to-account’ theory, argues that autonomy is of inherent value to the criminal process, being considered a constitutive element in the process of being called to account. While the aspiration is that the defendant’s guilty plea should be genuine, the guilty-plea decision must be voluntary if it is to be considered a performative act of accountability. Thus, by valuing procedural autonomy as a necessary element within the criminal adjudicative process, it assimilates a liberal procedure, whilst maintaining the liberal end by holding the defendant to account.

Keywords: liberal theory, adversarial criminal procedure, criminal law theory, liberal perfectionism, political liberalism

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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: Fátima Aparecida de Carvalho, Ester Eliane Jeunon

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This study addresses issues in the public service: motivation to work and organizational commitment. The goal of this research was to examine how it configures the motivation to work and organizational commitment of the technical and administrative effective staff of the School of Engineering at UFMG. For this purpose a descriptive research under a quantitative and qualitative approach has been performed. In the quantitative research it has been applied a questionnaire to all 146 technical and administrative institution effective staff, that configures a census research. This questionnaire was divided into three parts, the first one aimed at performing a socio-demographic survey of participants, the second one aimed to measure motivation and the third one aimed at measuring organizational commitment. The Bases Organizational Commitment Scale (EBACO) was used in the analysis of data obtained in the third part of the questionnaire. The qualitative research was conducted through interviews with 08 managers, with open-ended questions structured in an analysis category, thus contemplating the administrative structure of the School of Engineering. The results of the research revealed that there is no relevant difference between the hygiene and motivational indices, related to the staff´s gender and area of work. Nonetheless, it was observed higher motivational indices for staff with shorter duration of employment in the institution. Also, the results shown high organizational commitment of the staff with the institution, with a predominance of the component “Requirement for performance”, followed by commitments “Consistent line of activity”, “Affiliative” and “Affective”, which reached almost tge some average in this study. Finally the results showed that all commitment indices have positive moderated correlation to the motivational indices, except the “shortage of alternative” index.

Keywords: motivation to work, organizational commitment, public service, human resources

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Authors: Anna Pudlo

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The EU law encompasses many supranational legal systems (EU law, ECHR, international public law and constitutional traditions common to the Member States) which guarantee the protection of fundamental rights, with partly overlapping scopes of applicability, various principles of interpretation of legal norms and a different hierarchy. In EU law, the prohibition of discrimination on grounds of sexual orientation originates from both the primary and secondary EU legislation. At present, the prohibition is considered to be a fundamental right in pursuance of Article 21 of the Charter, but the Court has not yet determined whether it is a right or a principle within the meaning of the Charter. Similarly, the Court has not deemed this criterion to be a general principle of EU law. The personal and materials scope of the prohibition of discrimination on grounds of sexual orientation based on Article 21 of the Charter requires each time to be specified in another legal act of the EU in accordance with Article 51 of the Charter. The effect of the prohibition of discrimination on grounds of sexual orientation understood as above will be two-fold, for the States and for the Union. On the one hand, one may refer to the legal instruments of review of EU law enforcement by a Member State laid down in the Treaties. On the other hand, EU law does not provide for the right to individual petition. Therefore, it is the duty of the domestic courts to protect the right of a person not to be discriminated on grounds of sexual orientation in line with the national procedural rules, within the limits and in accordance with the principles set out in EU law, in particular in Directive 2000/78. The development of the principle of non-discrimination in the Court’s case-law gives rise to certain doubts as to its applicability, namely whether the principle as the general principle of EU law may be granted an autonomous character, with respect to the applicability to matters not included in the personal or material scope of the Directives, although within the EU’s competence. Moreover, both the doctrine and the opinions of the Advocates-General have called for the general competence of CJEU with regard to fundamental rights which, however, might lead to a violation of the principle of separation of competence. The aim of this paper is to answer the question what is the nature of the prohibition of discrimination on grounds of sexual orientation in EU law (a general principle in EU law, or a principle or right under the Charter’s terminology). Therefore, the paper focuses on the nature of Article 21 of the Charter (a right or a principle) and the scope (personal and material) of the prohibition of discrimination based on sexual orientation in EU law as well as its effect (vertical or horizontal). The study has included the provisions of EU law together with the relevant CJEU case-law.

Keywords: EU law, EU principles, non-discrimination in EU law, Charter of the Fundamental Rights

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Authors: Ikediobi Lottanna Samuel

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Days are gone when perpetrators of core international crimes hide under the cloak of sovereignty to go with impunity. The principle of international criminal responsibility is a reality. This move to end impunity for violation of human rights has led to the creation of international and hybrid tribunals, a permanent international criminal court, and increased prosecution of human rights violations in domestic courts. This article examines the attempts by the international community to bring perpetrators of heinous crimes to book. The work reveals the inadequacy of the current international mechanism for prosecuting core international crimes in order to end the culture of impunity and entrench the culture of accountability. It also identifies that ad hoc international criminal tribunals and the international criminal court face similar challenges ranging from lack of cooperation by nation states, non-existence of hierarchy of crimes, lack of effective enforcement mechanism, limited prosecutorial capacity and agenda, difficulty in apprehending suspects, difficulty in blending different legal tradition, absence of a coherent sentencing guideline, distant location of courts, selective indictment, etc. These challenges adversely affect the functioning of these courts. It is suggested that a more helpful way to end impunity would be to have a more robust and synergistic relationship between national, regional, and international approaches to prosecuting core international crimes.

Keywords: prosecution, criminal, international, tribunal, justice, ad hoc

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Authors: Aurélie Cassiers

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In this presentation, an overview is given of the freedom of states to legislate concerning abortion. Today, access to safe and legal abortion is still a hot topic in many countries in the world. Abortion policies try to strike a balance between women’s rights to self-determination and private life on the one hand, and the protection of the life of unborn children on the other. Each country has different religious, cultural and political views on abortion, and therefore specific legislations. However, citizens may submit a complaint at international courts when they find their national legislation too restrictive. The study is discussed of the development of the ECtHR, UNCHR, and IACHR case law, regarding the question of the ‘right to abort’ and indirectly of the protection of the unborn children. Each relevant case is analyzed to answer the following questions: Is the unborn child protected, and if so, how? Why does the woman want to abort and how is her interest or right protected? How is a fair balance reached between the different interests? Is the state completely free to write policies that restrict abortion? What are the factors to determine the margin of appreciation of the state? In conclusion, does this specific court recognize a right to abort, and if so, under which conditions? To conclude, this presentation shows that each court has its own perspective on and perception of abortion, and its own criteria to determine whether the state is complying with international norms regarding individual liberty and protection of the children.

Keywords: abortion, international courts, unborn children, women rights

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Authors: A. O. Osabo

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Polytechnic education is often described as the only sustainable academic institution that can propel massive industrial and technological growth and development in all sectors of the Nigerian economy. Because of its emphasis on science and technology, practical demonstration of skills and pivotal role in the training of low-and-high-cadre technologists and technocrats to man critical sectors of the economy, the administration of polytechnics needs to be run according to global best standards and practices in order to achieve their goals and objectives. Besides, the polytechnics need to be headed by seasoned and academically sound professionals to pursue the goals and objectives of the schools as centres of technology, learning and academic excellence. Over the years, however, polytechnics in Nigeria have suffered a wide myriad of administrative problems and challenges which have prevented them from achieving their basic goals and objectives. Apart from regulatory problems and challenges, some heads of polytechnics do not demonstrate leadership and management skills in bringing the desired innovations in the management of the polytechnics under them. These have resulted, in most cases, to the polytechnics not performing optimally in its mandate. This paper examines the administrative problems, challenges and prospects of polytechnics education in north-central Nigeria. Using a total of 97 questionnaires consisting of semi-structured interviews of yes-or-no questions shared among staff and students of the selected polytechnics and a descriptive statistical method of analysis, the study found that the inability of the polytechnics to meet their goals and objectives is caused by administrative and organizational problems and challenges, bordering on funding, accreditation, manpower, corruption and maladministration, among others. The paper thus suggests that the leadership of the polytechnics must rise up to the demands of the time in order to deal with the administrative problems and challenges affecting them and fulfill the goals and objectives for which the schools were established.

Keywords: education, administration, polytechnic, accreditation, Nigerian

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Authors: Katarzyna Kamińska

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Joint physical custody means that both parents after divorce or separation have the right and responsibility to take care of the child on the daily basis. In a joint physical custody arrangement, the child spends substantial, but not necessarily equal, time with both parents. Joint physical custody can be symmetric care arrangement or not. However, it is accepted in the jurisprudence that the best interests of the child is served when the child spends at least 35% of the time during a two-week period with each parent. Joint physical custody, also known as joint, dual, or shared residence, is a challenge in contemporary family law. It has its supporters and opponents. On the one hand, joint physical custody is beneficial because it provides children with frequent and continuous contact with a mother and father after their divorce or separation. On the other hand, it isn’t good for children to be shuttled back and forth between two residences. Children need a home base. The conclusion is therefore that joint physical custody can’t be seen as a panacea for all post-divorce or post-separation parenting cases and the court shouldn’t automatically make such a determination. The possibility to award this arrangement requires the court to carefully weigh the pros and cons of each individual case. It is difficult to say that joint physical custody is better than single physical custody in any case. It depends on the circumstances and needs of each family. It appears that an individual approach is going to be much better as opposed to a one-size-fits-all idea.

Keywords: joint physical custody, shared residence, dual residence, the best interests of the child

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Authors: Panyarat Panthong

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This research paper was conducted to examine the association between demographic, professional and social characteristics, and self-leadership of personnel who worked at Sub-District Administrative Organization Offices in Muang District, Udon Thani Province, and to identify the degree level of self-leadership of the selected samples in relation with the study variables. A total of 89 samples were collected from the 15 Sub-District Administrative Organization Offices. The paper employed both quantitative and qualitative methods using the Chi- Square and Cramer’s V statistics for the data analysis. The findings unveiled that constructive thought strategies showed a significant existence followed by behavior- focused strategies and natural reward strategies. Moreover, the research found that the respondents’ length of time working in the position and the respondents’ self- leadership presented a significant association in terms of the behavior-focused and constructive thought strategies. On the other hand, the respondents’ demographic characteristics placed no association with the level of self-leadership in behavior-focused strategies, natural reward strategies and constructive thought strategies. It is hoped that this finding will provide informative and practical guidance for the Ministry of Interior of Thailand and Department of Local Administration of the studied province.

Keywords: demographic characteristics, professional characteristics, self- leadership, social characteristics

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Authors: Rafla Hchaichi

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The public administration is currently experiencing in the field of quality unprecedented effervescence. However, in a globalized world more and more competitive, public services are confronted with the need to improve their performances which push public companies to implement quality approaches. Quality approaches have taken diverse forms such as service commitment, labels, certifications and the Common Assessment Framework. This paper provides an overview on the strategy for administrative development in Tunisia since the Carthaginian civilization until today. It outlines the evolution of quality management in the Tunisian public context while focusing on the National Referential of Quality of Administrative Services.

Keywords: quality approach, the common assessment framework, service commitment, label, certification, quality of public service, performance of public service, Tunisian Public Service

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Authors: Konstancja Syller

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International law and European regulations remain hardly silent about the admissibility of evidence obtained illegally in a criminal trial. However, Article 6 of the European Convention on Human Rights guarantees the right to a fair trial, it does not normalise a proceeding status of specified sources or means of proof outright. Therefore, it is the preserve of national legislation and national law enforcement authorities to decide on this matter. In most countries, especially in Germany and Poland, a rather complex normative approach to the issue of proof obtained in violation of the right to privacy is evident, which pursues in practise to many interpretive doubts. In Germany the jurisprudence has a significant impact within the range of the matter mentioned above. The Constitutional Court and the Supreme Court of Germany protect the right to privacy quite firmly - they ruled on inadmissibility of obtaining a proof in the form of a diary or a journal as a protection measure of constitutional guaranteed right. At the same time, however, the Supreme Court is not very convinced with reference to the issue of whether materials collected as a result of an inspection, call recordings or listening to the premises, which were carried out in breach of law, can be used in a criminal trial. Generally speaking, German courts indicate a crucial importance of the principle of Truth and the principle of proportionality, which both enable a judgement to be made as to the possibility of using an evidence obtained unlawfully. Comparing, in Poland there is almost no jurisprudence of the Constitutional Tribunal relating directly to the issue of illegal evidence. It is somehow surprising, considering the doctrinal analysis of the admissibility of using such proof in a criminal trial is performed in relation to standards resulted from the Constitution. Moreover, a crucial de lega lata legal provision, which enables allowing a proof obtained in infringement of the provisions in respect of criminal proceedings or through a forbidden act, is widely criticised within the legal profession ant therefore many courts give it their own interpretation at odds with legislator’s intentions. The comparison of two civil law legal systems’ standards regarding to the admissibility of an evidence obtained in contravention of the right to privacy in a criminal trial, taking also into account EU legislation and judicature, is the conclusive aim of this article.

Keywords: criminal trial, evidence, Germany, right to privacy, Poland

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Authors: Adam Reilly

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The major claim of this paper is that both the English and Canadian branches of the common law have been ill-served by the 'institutional'/'remedial' taxonomy of constructive trusts; what shall be termed the 'orthodox taxonomy'.  The orthodox taxonomy is found both within the case law and the attendant academic commentary.  In truth, the orthodox taxonomy is especially dangerous because it contains a kernel of truth together with a misconception; the interplay of both has caused more harm than the misconception alone would have managed.  The kernel of truth is that some trusts arise automatically when the necessary facts occur ('institutional') and other trusts arise only by way of court order ('remedial').  The misconception is that these two labels represent an exhaustive nomenclature of two distinct 'kinds' of constructive trust such that any particular constructive trust must necessarily be 'institutional' if it is not 'remedial' and vice versa.  The central difficulty is that our understanding of 'remedial' trusts is relatively poor, with the result that anyone using the orthodox taxonomy shall be led astray in one of three ways: (i) by rejecting it wholesale; (ii) by adopting one ‘type’ of trust to the exclusion of the other (as in English law); or (iii) by applying it as an analytical device with sub-optimal results which are difficult to defend.  This paper shall seek to resolve these difficulties by clarifying the criteria for identifying and distinguishing true 'remedial' constructive trusts.  It shall then provide some working examples of how English and Canadian private law at present misunderstand constructive trusts and how that misunderstanding might be resolved once we distinguish the orthodox taxonomy's kernel of truth from the misconception outlined above.

Keywords: comparative law, constructive trusts, equitable remedies, remedial constructive trusts

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Authors: Rainner Roweder

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Theme: The present paper aims to analyze the specificity of the judicial evidence linked to the subjects of dignity and personality rights, otherwise known as moral rights, in the determination of the truth and formation of the judicial reasoning in cases concerning these areas. This research is about the way courts in Brazilian domestic law search for truth and handles evidence in cases involving moral rights that are abundant and important in Brazil. The main object of the paper is to analyze the effectiveness of the evidence in the formation of judicial conviction in matters related to morally controverted rights, based on the Brazilian, and as a comparison, the Latin American legal systems. In short, the rights of dignity and personality are moral. However, the evidential legal system expects a rational demonstration of moral rights that generate judicial conviction or persuasion. Moral, in turn, tends to be difficult or impossible to demonstrate in court, generating the problem considered in this paper, that is, the study of the moral demonstration problem as proof in court. In this sense, the more linked to moral, the more difficult to be demonstrated in court that right is, expanding the field of judicial discretion, generating legal uncertainty. More specifically, the new personality rights, such as gender, and their possibility of alteration, further amplify the problem being essentially an intimate manner, which does not exist in the objective, rational evidential system, as normally occurs in other categories, such as contracts. Therefore, evidencing this legal category in court, with the level of security required by the law, is a herculean task. It becomes virtually impossible to use the same evidentiary system when judging the rights researched here; therefore, it generates the need for a new design of the evidential task regarding the rights of the personality, a central effort of the present paper. Methodology: Concerning the methodology, the Method used in the Investigation phase was Inductive, with the use of the comparative law method; in the data treatment phase, the Inductive Method was also used. Doctrine, Legislative, and jurisprudential comparison was the technique research used. Results: In addition to the peculiar characteristics of personality rights that are not found in other rights, part of them are essentially linked to morale and are not objectively verifiable by design, and it is necessary to use specific argumentative theories for their secure confirmation, such as interdisciplinary support. The traditional pragmatic theory of proof, for having an obvious objective character, when applied in the rights linked to the morale, aggravates decisionism and generates legal insecurity, being necessary its reconstruction for morally charged cases, with the possible use of the “predictive theory” ( and predictive facts) through algorithms in data collection and treatment.

Keywords: moral rights, proof, pragmatic proof theory, insufficiency, Brazil

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Authors: Rahmayanti, Theresia Simatupang, Ronald H. Sianturi

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Corruption criminal act develops rapidly since in the transition era there is weakness in law. Consequently, there is an opportunity for a few people to do fraud and illegal acts and to misuse their positions and formal functions in order to make them rich, and the criminal acts are done systematically and sophisticatedly. Some people believe that legal provisions which specifically regulate the corruption criminal act; namely, Law No. 31/1999 in conjunction with Law No. 20/2001 on the Eradication of Corruption Criminal Act are not effective any more, especially in onus probandi (the burden of proof) on corruptors. The research was a descriptive analysis, a research method which is used to obtain description on a certain situation or condition by explaining the data, and the conclusion is drawn through some analyses. The research used judicial normative approach since it used secondary data as the main data by conducting library research. The system of the burden of proof, which follows the principles of reversal of the burden of proof stipulated in Article 12B, paragraph 1 a and b, Article 37A, and Article 38B of Law No. 20/2001 on the Amendment of Law No. 31/1999, is used only as supporting evidence when the principal case is proved. Meanwhile, how to maximize the implementation of the burden of proof on the perpetrators of corruption criminal act in which the public prosecutor brings a corruption case to Court, depends upon the nature of the case and the type of indictment. The system of burden of proof can be used to eradicate corruption in the Court if some policies and general principles of justice such as independency, impartiality, and legal certainty, are applied.

Keywords: burden of proof, perpetrator, corruption criminal act

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Authors: Sandra Regina Cavalcante, Rodolfo A. G. Vilela

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Introduction: Work accidents and occupational diseases are a big problem for public health around the world and the main health problem of workers with high social and economic costs. Brazil has shown progress over the last years, with the development of the regulatory system to improve safety and quality of life in the workplace. However, the situation is far from acceptable, because the occurrences remain high and there is a great gap between legislation and reality, generated by the low level of voluntary compliance with the law. Brazilian laws provide procedural legal instruments for both, to compensate the damage caused to the worker's health and to prevent future injuries. In the Judiciary, the prevention idea is in the collective action, effected through Brazilian Class Actions. Inhibitory guardianships may impose both, improvements to the working environment, as well as determine the interruption of activity or a ban on the machine that put workers at risk. Both the Labor Prosecution and trade unions have to stand to promote this type of action, providing payment of compensation for collective moral damage. Objectives: To verify how class actions (known as ‘public civil actions’), regulated in Brazilian legal system to protect diffuse, collective and homogeneous rights, are being used to protect workers' health and safety. Methods: The author identified and evaluated decisions of Brazilian Superior Court of Labor involving collective actions and work accidents. The timeframe chosen was December 2015. The online jurisprudence database was consulted in page available for public consultation on the court website. The categorization of the data was made considering the result (court application was rejected or accepted), the request type, the amount of compensation and the author of the cause, besides knowing the reasoning used by the judges. Results: The High Court issued 21,948 decisions in December 2015, with 1448 judgments (6.6%) about work accidents and only 20 (0.09%) on collective action. After analyzing these 20 decisions, it was found that the judgments granted compensation for collective moral damage (85%) and/or obligation to make, that is, changes to improve prevention and safety (71%). The processes have been filed mainly by the Labor Prosecutor (83%), and also appeared lawsuits filed by unions (17%). The compensation for collective moral damage had average of 250,000 reais (about US$65,000), but it should be noted that there is a great range of values found, also are several situations repaired by this compensation. This is the last instance resource for this kind of lawsuit and all decisions were well founded and received partially the request made for working environment protection. Conclusions: When triggered, the labor court system provides the requested collective protection in class action. The values of convictions arbitrated in collective actions are significant and indicate that it creates social and economic repercussions, stimulating employers to improve the working environment conditions of their companies. It is necessary to intensify the use of collective actions, however, because they are more efficient for prevention than reparatory individual lawsuits, but it has been underutilized, mainly by Unions.

Keywords: Brazilian Class Action, collective action, work accident penalization, workplace accident prevention, workplace protection law

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Authors: Phutthiwat Waiyawuththanapoom

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This study has only one objective which is to identify the different in factors of choosing the distributor for food and non-food OTOP entrepreneur in Thailand. In this research, the types of OTOP product will be divided into two groups which are food and non-food. The sample for the food type OTOP product was the processed fruit and vegetable from Nakorn Pathom province and the sample for the non-food type OTOP product was the court doll from Ang Thong province. The research was divided into 3 parts which were a study of the distribution pattern and how to choose the distributor of the food type OTOP product, a study of the distribution pattern and how to choose the distributor of the non-food type OTOP product and a comparison between 2 types of products to find the differentiation in the factor of choosing distributor. The data and information was collected by using the interview. The populations in the research were 5 producers of the processed fruit and vegetable from Nakorn Pathom province and 5 producers of the court doll from Ang Thong province. The significant factor in choosing the distributor of the food type OTOP product is the material handling efficiency and on-time delivery but for the non-food type OTOP product is focused on the channel of distribution and cost of the distributor.

Keywords: distributor, OTOP, food and non-food, selection

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Authors: Muhammad Arzim Naim, Saiful Azhar Rosly, Mohamad Sahari Nordin

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The objective of this study is to investigate the factors affecting the rise of Shariah non-compliance risk that can bring Islamic banks to succumb to monetary loss. Prior literatures have never analyzed such risk in details despite lots of it arguing on the validity of some Shariah compliance products. The Shariah non-compliance risk in this context is looking to the potentially failure of the facility to stand from the court test say that if the banks bring it to the court for compensation from the defaulted clients. The risk may also arise if the customers refuse to make the financing payments on the grounds of the validity of the contracts, for example, when relinquishing critical requirement of Islamic contract such as ownership, the risk that may lead the banks to suffer loss when the customer invalidate the contract through the court. The impact of Shariah non-compliance risk to Islamic banks is similar to that of legal risks faced by the conventional banks. Both resulted into monetary losses to the banks respectively. In conventional banking environment, losses can be in the forms of summons paid to the customers if they won the case. In banking environment, this normally can be in very huge amount. However, it is right to mention that for Islamic banks, the subsequent impact to them can be rigorously big because it will affect their reputation. If the customers do not perceive them to be Shariah compliant, they will take their money and bank it in other places. This paper provides new insights of risks faced by credit intensive Islamic banks by providing a new extension of knowledge with regards to the Shariah non-compliance risk by identifying its individual components that directly affecting the risk together with empirical evidences. Not limited to the Islamic banking fraternities, the regulators and policy makers should be able to use findings in this paper to evaluate the components of the Shariah non-compliance risk and make the necessary actions. The paper is written based on Malaysia’s Islamic banking practices which may not directly related to other jurisdictions. Even though the focuses of this study is directly towards to the Bay Bithaman Ajil or popularly known as BBA (i.e. sale with deferred payments) financing modality, the result from this study may be applicable to other Islamic financing vehicles.

Keywords: Islamic banking, Islamic finance, Shariah Non-compliance risk, Bay Bithaman Ajil (BBA), principal axis factoring

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Authors: R. Kenova, K. Anguelov, R. Nikolova

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The human factor plays a major role in boosting the competitive capacity of logistic enterprises. This is of particular importance when it comes to logistic companies. On the one hand they should be strictly compliant with legislation; on the other hand, they should be competitive in terms of pricing and of delivery timelines. Moreover, their policies should allow them to be as flexible as possible. All these circumstances are reason for very serious challenges for the qualification, motivation and experience of the human resources, working in logistic companies or in logistic departments of trade and industrial enterprises. The geographic place of Bulgaria puts it in position of a country with some specific competitive advantages in the goods transport from Europe to Asia and back. Along with it, there is a number of logistic companies, that operate in this sphere in Bulgaria. In the current paper, the authors aim to establish the condition of the administrative capacity and human resources in the logistic companies and logistic departments of trade and industrial companies in Bulgaria in order to propose some guidelines for improving of their effectiveness. Due to independent empirical research, conducted in Bulgarian logistic, trade and industrial enterprises, the authors investigate both the impact degree and the interdependence of various factors that characterize the administrative capacity. The study is conducted with a prepared questionnaire, in format of direct interview with the respondents. The volume of the poll is 50 respondents, representatives of: general managers of industrial or trade enterprises; logistic managers of industrial or trade enterprises; general managers of forwarding companies – either with own or with hired transport; experts from Bulgarian association of logistics; logistic lobbyist and scientists of the relevant area. The data are gathered for 3 months, then arranged by a specialized software program and analyzed by preset criteria. Based on the results of this methodological toolbox, it can be claimed that there is a correlation between the individual criteria. Also, a commitment between the administrative capacity and other factors that determine the competitiveness of the studied companies is established. In this paper, the authors present results of the empirical research that concerns the number and the workload in the logistic departments of the enterprises. Also, what is commented is the experience, related to logistic processes management and human resources competence. Moreover, the overload level of the logistic specialists is analyzed as one of the main threats for making mistakes and losing clients. The paper stands behind the thesis that there is indispensability of forming an effective and efficient administrative capacity, based on the number, qualification, experience and motivation of the staff in the logistic companies. The paper ends with recommendations about the qualification and experience of the specialists in logistic departments; providing effective and efficient administrative capacity in the logistic departments; interdependence of the human factor and the other factors that influence the enterprise competitiveness.

Keywords: administrative capacity, human resources, logistic competitiveness, staff qualification

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Authors: Manana Kvetenadze, Dali Nikolaishvili

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The study revealed the territorial changes of Georgia before the Soviet and Post-Soviet periods. This includes the estimation of the country's borders, its administrative-territorial arrangement change as well as the establishment of territorial losses. Georgia’s old and new borders marked on the map are of great interest. The new boundary shows the condition of 1922 year, following the Soviet period. Neither on this map nor in other works Ivane Javakhishvili talks about what he implies in the old borders, though it is evident that this is the Pre-Soviet boundary until 1921 – i.e., before the period when historical Tao, Zaqatala, Lore, Karaia represented the parts of Georgia. According to cartometric-geographical terms, the work presents detailed analysis of Georgia’s borders, along with this the comparison of research results has been carried out: 1) At the boundary line on Soviet topographic maps, the maps of 100,000; 50,000 and 25,000 scales are used; 2) According to Ivane Javakhishvili’s work ('The borders of Georgia in terms of historical and contemporary issues'). During that research, we used multi-disciplined methodology and software. We used Arc GIS for Georeferencing maps, and after that, we compare all post-Soviet Union maps, in order to determine how the borders have changed. During this work, we also use many historical data. The features of the spatial distribution of the territorial administrative units of Georgia, as well as the distribution of administrative-territorial units of the objects depicted on the map, have been established. The results obtained are presented in the forms of thematic maps and diagrams.

Keywords: border, GIS, georgia, historical cartography, old maps

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Authors: Siwaporn Mahathamnuchock, Krit Phanpanya

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This survey study aims 1) to investigate the preparation of Mae Hong Son people for entering into the aging society 2) to study awareness of public health preparedness for the aging society of Mae Hong Son Province Administrative Organization. The samples used in this study were people aged 55-60 years in Mae Hong Province. Located at Khun Yuam Sub district, Khun Yuam District, Pang Ma Pha Sub district, Pang Ma Pha District, Thung Yao Sub district, Pai District, Mae ka Tuan Sub district, Sob Moei District, Mae Sariang Sub district, Mae Sariang District, Mae Tho Sub district, Mae La Noi District. And Huai Pha Sub district, Muang Mae Hong District. The data were collected from 1,088 people by Stratified sampling Method. The instrument used in this study were 36 items of questionnaire that contains three parts: 1) Sample’s general information 2) The Interview of Mae Hong Son people’s preparation before entering aging society. 3) The Interview about preparedness of health for the aging society of Mae Hong Son Province Administrative Organization. Then analyzed the data by using percentage and standard deviation. The research found that Mae Hong Son people are preparing for an aging society as followed; psychological, residence, physical health, careers and leisure time on a large scale with an average of 3.81 (SD=0.88), 3.66 (SD=0.99), 3.53(SD=1.04) and 3.51(SD=0.89), respectively. However finances and saving were prepared on moderate scale with an average of 2.84(SD=0.89) and in the awareness of public health preparedness for the aging society of Mae Hong Son Province Administrative Organization were moderate with an average of 2.99 (SD=1.07).

Keywords: aging society, preparedness, perception, Mae Hong Son province

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