Search results for: sharia court

Authors: Nurul Hidayat

Abstract:

Based on the data from the Indonesian Tax Authority, the contribution of self-employed taxpayers in Indonesia is just approximately 1-2 percent of total tax revenues during 2013 - 2015. This phenomenon requires greater attention to understand what factors that may affect it. The fact that Indonesia has the most prominent Muslim population in the world makes it important to analyze whether there potentially exists a correlation between Islamic religiosity and low tax contribution. The low level of tax contribution may provide an initial indication of low tax morale and tax compliance. This study will extend the existing literature by investigating the influence of Islamic religiosity as a moderating effect on the relationship between the perceptions of government legitimacy and tax morale among self-employed taxpayers. There are some factors to consider when taking into account the issue of Islamic religiosity and its relationship with tax morale in this study. Firstly, in Islam, there is a debate surrounding the lawfulness of tax. Some argue that Muslims should not have to pay tax; while others argue that the imposition of the tax is legitimate in circumstances. These views may have an impact on government legitimacy and tax morale. Secondly, according to Islamic sharia, Islam recognizes another compulsory payment, i.e. zakat, which to some extent has similar characteristics to tax. According to Indonesian Income Tax Law, zakat payment has just been accommodated as a deduction from taxable income. As a comparison, Malaysia treats zakat as a tax rebate. The treatment of zakat only as a taxable income deduction may also lead to a conflicting issue regarding the perception of tax fairness that possibly erode the perception of government legitimacy and tax morale. Based on the considerations above, perceptions of government legitimacy become important to influence the willingness of people to pay tax while the level of Islamic religiosity has a potential moderator effect on that correlation. In terms of measuring the relationship among the variables, this study utilizes mixed-quantitative and qualitative methods. The quantitative methods use surveys to approximately 400 targeted taxpayers while the qualitative methods employ in-depth interviews with 12 people, consist of experts, Islamic leaders and selected taxpayers. In particular, the research is being conducted in Indonesia, the country with the largest Muslim population in the world which has not fully implemented Islamic law as state law. The result indicates that Islamic religiosity becomes a moderating effect on the way taxpayers perceived government legitimacy that finally influences on tax morale. The findings of this study are supportive for the improvement of tax regulations by specifically considering tax deductions for zakat.

Keywords: Islamic religiosity, tax morale, government legitimacy, zakat

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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 religion, israel, jewish law, law and society

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Authors: Yuliya Radanova, Agnė Tvaronavičienė

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With the growing trend for mandating parties of family conflicts to out-of-court processes, the adopted statutory regulations often remain silent on the way the voice of the child is integrated into the procedure. Convention on the Rights of the Child (Art. 12) clearly states the obligation to assure to the child who can form his or her own views the right to express those views freely in all matters affecting him. This article seeks to explore the way children participate in the mandatory mediation schemes applicable to family disputes in the European Union. A review of scientific literature and empirical data has been conducted on those EU Member States that coerce parties to family mediation to establish that different models of practice are deployed, and there is a lack of synchronicity on how children’s role in mediation is viewed. Child-inclusive mediation processes are deemed to produce sustainable results over time but necessitate professional qualifications and skills for the purpose of mediators to accommodate that such discussions are aligned with the best interest of the child. However, there is no unanimous guidance, standards or protocols on the peculiar characteristics and manner through which children are involved in mediation. Herewith, it is suggested that the lack of such rigorous approaches and coherence in an ever-changing mediation setting transitioning towards mandatory mediation models jeopardizes the importance of children’s voices in the process. Thus, it is suggested that there is a need to consider the adoption of uniform guidelines on the specific role children have in mediation, particularly in its mandatory models.

Keywords: family mediation, child involvement, mandatory mediation, child-inclusive, child-focused

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Authors: Fines Fatimah, SH. MH.

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Indonesia is one of the countries that has ratified the UNCRPD (United Nations Convention on the Rights of Persons with Disabilities). The ratification of this convention brings consequences on the adjustment of national legislation with the UNCRPD convention, where this ratification at the same time is a measure in the eyes of the international community that a state party could be consistent with the issues and problems of disability. Persons with disabilities often have little access to justice when they are forced to deal with the criminal justice system. Pursuit of justice through litigation are often not in their favor, therefore without any awareness of law enforcement/awareness of disability will further complicate access to justice for persons with disabilities. Under Article 13 of the UNCRPD, it appeared that the convention requires ratifying states to guarantee equal opportunity and treatment in justice for persons with disabilities. The States should also ensure that any judicial rules must be adapted to the circumstances of persons with disabilities so that people with disabilities can fully participate in all stages of the trial court and, for example, as a witness. Finally, the state must provide training to understand these persons with disabilities (for those who work in the judiciary institution such as police or prison officials). Further, this paper aims to describe problem faced by persons with intellectual disabilities to access justice in Indonesian Criminal Justice System. This paper tries to find and propose the alternative solutions to promote the quality of law enforcement in Indonesia, especially for persons with intellectual disabilities.

Keywords: access to justice, Indonesian criminal justice system, intellectual disability, ratifying states

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Authors: Ralph Barnes

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The internationalization and globalization of education are now a huge, multi-million dollar industry. The movement of international students across the globe has provided a rich vein of revenue for universities and institutions of higher learning to exploit and harvest. A concerted effort has been made by universities worldwide to court students from overseas, with some countries relying up to one-third of student fees, coming from international students. Australian universities and English Language Centres are coming under increased government scrutiny in respect to such areas as the academic progression of international students, management and understanding of student visa requirements and the design of higher education courses and effective assessment regimes. As such, universities and other higher education institutions are restructuring themselves more as service providers rather than as strictly education providers. In this paper, the high-touch, tailored academic model currently followed by some Australian educational institutions to support international students, is examined and challenged. Academic support services offered to international students need to be coordinated, sustained and reviewed regularly, in order to assess their effectiveness. Maintaining the delivery of high-quality educational programs and learning outcomes for this high income-generating student cohort is vital, in order to continue the successful academic and social engagement by international students across the Australian university and higher education landscape.

Keywords: ESL, engagement, tertiary, learning

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Authors: Nafees Ahmed, Nur Izyani Kamaruzman, Saralla Nathan, Mohd Ezharul Hoque Chowdhury, Anuar Zaini Md Zain, Iekhsan Othman, Sharifah Binti Syed Hassan

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Meat quality is always subject to consumer scrutiny when purchasing from retail markets on mislabeling as fresh meat. Various physiological and biochemical changes influence the quality of meat. As a major component of muscle tissue, proteins play a major role in muscle foods. In meat industry, freezing is the most common form of storage of meat products. Repeated cycles of freezing and thawing are common in restaurants, kitchen, and retail outlets and can also occur during transportation or storage. Temperature fluctuation is responsible for physical, chemical, and biochemical changes. Repeated cycles of ‘freeze-thaw’ degrade the quality of meat by stimulating the lipid oxidation and surface discoloration. The shelf life of meat is usually determined by its appearance, texture, color, flavor, microbial activity, and nutritive value and is influenced by frozen storage and subsequent thawing. The main deterioration of frozen meat during storage is due to protein. Due to the large price differences between fresh and frozen–thawed meat, it is of great interest to consumer to know whether a meat product is truly fresh or not. Researchers have mainly focused on the reduction of moisture loss due to freezing and thawing cycles of meat. The water holding capacity (WHC) of muscle proteins and reduced water content are key quality parameters of meat that ultimately changes color and texture. However, there has been limited progress towards understanding the actual mechanisms behind the meat quality changes under the freeze–thaw cycles. Furthermore, effect of freeze-thaw process on integrity of proteins is ignored. In this paper, we have studied the effect of ‘freeze-thawing’ on physicochemical changes of chicken meat protein. We have assessed the quality of meat by pH, spectroscopic measurements, Western Blot. Our results showed that increase in freeze-thaw cycles causes changes in pH. Measurements of absorbance (UV-visible and IR) indicated the degradation of proteins. The expression of various proteins (CREB, AKT, MAPK, GAPDH, and phosphorylated forms) were performed using Western Blot. These results indicated the repeated cycles of freeze-thaw is responsible for deterioration of protein, thus causing decrease in nutritious value of meat. It damges the use of these products in Islamic Sharia.

Keywords: chicken meat, freeze-thaw, halal, protein, western blot

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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

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Authors: Desiree David

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South Africa has one of the highest rates of HIV infection in the world, with a sizable percentage of the population living with HIV. A substantial number of new infections occur as a result of sexual activity. South African courts have awarded civil claims for damages as a result of the transmission of HIV as a result of non-disclosure by the HIV-positive sexual partner, and more recently, the criminal courts have also convicted and sentenced individuals accused of infecting others as a result of sexual activity. This paper will analyse some case law from South African court cases that have dealt with criminal convictions for the transmission of HIV, and the potential for more widespread prosecutions of these cases. It will also address the desirability of this trend in light of the social public health system, as well as human rights concerns surrounding this highly contentious issue. This will be done by considering some applicable provisions of the Bill of Rights such as the right to privacy and equality, as espoused in the Constitution of the Republic of South Africa. The paper further addresses the experience of other jurisdictions such as Canada, Singapore, Lesotho and Uganda, by analyzing case law, and consider the pitfalls of criminalizing a wide spectrum of sexual conduct that could result in the transmission of HIV. The paper concludes with a proposal that the issue of criminalizing the transmission of HIV cannot be addressed by the criminal justice system alone, as to do so could result in harsh consequences for those living with HIV. As such individuals may be burdened with additional responsibilities that could potentially impact on the rights of the individual. This may ultimately result in injustice for those living with HIV.

Keywords: criminalization, HIV, human rights, South Africa

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Authors: Piedad Lucia Bolivar Goez, Daniel Ignacio Garzon Luna, Maria Camila Balcero Angel, Sara Carolina Martinez Roman, Daniela Natalia Polo Rivas, Sandra Liliana Rocha Guitierrez

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This article provides a critical analysis on the conception of disorders of sexual development (DSDs) within the bioethics framework. By means of analytical thought, the objective is to approach topics such as the rediscovery of the body, the reinvention of sexuality and link them to the liability that health personnel have to inform people about the options they have to decide over their health and body. The medicalization of sexed bodies in both psychosocial and anatomo-morpho-physiological dimensions from a legal standpoint were analyzed. Its also explored the gender stereotypes established by society and the role of laws in guaranteeing the right of autonomy that takes on greater relevance in DSD. Through this analysis, it was concluded that despite intersexuality having been analyzed by Colombia’s Constitutional Court, that it is stated as a fair entity, the stigmatization by society has not allowed these individuals to belong to an egalitarian context in which everyone has the same opportunities of access to the goods and services that they need. This leads individuals to hide their identity and expression of genre in order to be accepted in a set of contexts. Thus creating a vulnerability that the health system must be able to identify and in which it is necessary to intervene at a biopsychosocial level, in order to guarantee the protection of the individual within an unquestionable frame of equality and solidarity.

Keywords: disorders of sex development, gender identity, sexuality, transgender persons

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Authors: Nia Kurniati, Efa Laela Fakhriah

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The regulation in Indonesia provides space for the land dispute to be settled outside the court by the government through National Land. In this case, the bureaucrat of Badan Pertanahan Nasional (BPN) acts as mediator to reach a fair agreement between the disputing parties. Land dispute is from a party who denies the ownership of the other party of a land and denies legal-technical facts written on land certificate published by BPN. Appointing the bureaucrat of BPN as mediator in dispute settlements may possibly create conflict of interest since the object. It has become a concern since bureaucrat of BPN acts as mediator, he will be bias and partial in assisting the dispute settlement, thus the spirit and purposes of mediation will be hampered. This issue triggers to be thoroughly examined further in a relation with the role and function of BPN as land dispute mediator. The methodology used in this research is a normative-legal one with qualitative-legal analytical method. The object of this research is in the form of random sampling of land dispute cases being occurred in some areas. Several principles in mediation have to be made as the base of the consideration to appoint bureaucrat of BPN as mediator since the mediator is an impartial third party, working with both disputing parties and assisting them to reach a fair resolution written in agreement as a foundation of land dispute settlement. The existence of BPN as mediator in land dispute settlement encounters conflict of interest which uphold legal uncertainty to act objectively.

Keywords: Indonesia, land dispute, mediator, national land authority

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Authors: Elona Saliaj

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The registration of real estate in Albania after the 90's has been a long process in time and with high cost for the country. Passing the registration system from a centralized system to a free market private system, it’s accompanied by legal uncertainties that have led to economic instability. The reforms that have been undertaken in terms of property rights have been numerous and continuous throughout the years. But despite the reforms, the system of registration of real estate, has failed to be standards requirements established by the European Union. The completion of initial registration of real estate, legal treatment of previous owners or legalization of illegal constructions remain among the main problems that prevent the development of the country in its economic sector. The performance of the registration of real estate system and dealing with issues that have appeared in the Court of First Instance, the civil section of the Albanian constitute the core of handling this analysis. This paper presents a detailed analysis on the registration system that is chosen to be applied in our country for real estate. In its content it is also determined the institution that administrates these properties, the management technique and the law that determinate its functionality. The strategy is determined for creating a modern and functional registration system and for the country remains a challenge to achieve. Identifying practical problems and providing their solutions are also the focus of reference in order to improve and modernize this important system to a state law that aims to become a member of the European Union.

Keywords: real estates registration system, comparative aspects, cadastral area, property certificate, legal reform

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Authors: Ahmad Sanusi Azmi, Amiruddin Mohd Sobali, Zulhilmi Mohamed Nor, Mohd Yusuf Ismail, Amran Abdul Halim

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The non-Muslim communities’ reactions to the denials of the prophethood of Muḥammad in the ninth century created an impact on the development of Islamic prophetology. Vigorous refutations from non-Muslim community, specifically the Jews, Christians and Brahmins urged Muslims to develop a solid mechanism in defense of the status of their beloved prophet. One of the works that has been recognized as an apparatus to defend the Prophet Muḥammad veracity is al-Dīn wa al-Dawla composed by Ibn Rabban, a physician of the Caliph’s court. This study analyses the novelty of his approaches in exploring Sīra Nabawiyya and defending the prophethood of Muḥammad. The study employed a descriptive, comparative and critical approach where it analyses and extracts the author original approach in explaining the legitimacy of Muḥammad’s prophethood and enlightening the Prophet’s biography. The study in its finding argues that most of Ibn Rabban arguments in this work are actually developed from the foundations of Biblical scripture. His style of interpreting Biblical passages indicates a possible dependence on Ibn al-Layth’s letter. However, the way in which he presents Qur’ānic references seems not to be in accordance with Ibn al-Layth’s perspective. This is where the novelty of his approach is distinguished. As a result, the study also affirms that Ibn Rabban imposes his own standards of selection and interpretation of Qur’ānic verses when he applies it as reference to the Prophet life.

Keywords: Sīra Nabawiyya, Ibn Rabban, al-Dīn wa al-Dawla, Christian, Dalāil Nubuwwa

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Authors: Rika van Zyl

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South Africa’s racial discrimination past has led to the drafting of the Constitution with the Bill of Rights for the people of South Africa. The Bill of Rights prohibits the state from unfairly discriminating directly or indirectly on certain grounds, one of which is race and another is gender. This has forced changes to the law of succession. The customary law rule of male primogeniture was abolished to ensure that women were not excluded from the intestate succession of the male head of the family in 2005. It was said that this rule cannot be reconciled with the notions of equality and human dignity contained in the Bill of Rights. The freedom of testation has further come under fire in South Africa, where it was found to be unfair discrimination and against public policy to exclude a specific gender (women) from inheriting in a private will. Although no one has the right to inherit in South Africa, any person with an interest can approach the court alleging that a right in the Bill of Rights has been infringed. A will that is found inconsistent with the South African Bill of Rights then cannot be enforced. Recent case law found that to leave out a specific gender (women) from a will, based entirely on the fact that they are of said specific gender, is in contravention of the Constitution and should, therefore, be declared invalid. It was said that the courts should take a transformative constitutional approach when equality rights are affected. Otherwise, the historical and insidious unequal distribution of wealth in South Africa will continue along the fault lines such as gender. This decision has opened the debate on the extent to which the state can interfere with the private autonomy of an individual who is deceased. Some of these arguments will be discussed, including the ambit of public policy in this regard.

Keywords: equality, discrimination, succession, public policy

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Authors: Fedorova Elena

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In this article, we draw a distinction between two important functions of public policy in private international law. The first function is widely recognized and relates to the prevention of application of foreign laws and enforcement of foreign court judgments whenever their effects are incompatible with the domestic legal system of the forum. This effectively protects sovereign rights of the forum state as it allows to resist against the undesirable effects of foreign law-making and law-enforcement policies. The second function is less obvious, but not less important. As the internal private legal relationships, international private relationships are usually governed by rules of public policy, to which the parties can not derogate by mutual agreement. Thefore, for international private law relations public policy has a different function than previously mentioned: in this case, the public policy acts as a defense against unacceptable effects of the party autonomy. Thus, this second function of public policy consists in the limitation of the party autonomy wich effects would be unacceptable for the local legal system. In the frame of this second function the author will analyse two types of public policy which can limit the party autonomy: « substantial » public policy (which regulates the substance of international legal relationship) and « conflictual » public policy (which regulates the party autonomy to choose the law applicable for the substance of relationship). The author provides an analysis of these functions of the public policy in the field of international contract law because of the important role of the principle of party autonomy for international contract relations.

Keywords: public policy, general theory of private international law, substantial public policy, conflictual public policy

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Authors: Amir Bastani

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The result of the research in the field of human behavioural genetics demonstrates a genetic contribution of behavioural differences in aggression, violence, drug and substance abuse, antisocial personality disorder and other related traits. As the field of human behavioural genetics progresses and achieves credibility, the criminal accused continue to use its types of evidence into the criminal law. One of the most important genetic factors which controls certain neurotransmitters like dopamine and serotonin is the Monoamine Oxidase Acid A (MAOA) gene, known as the 'warrior gene'. The high-profile study by Caspi and colleagues in 2002 showed that the combination between one type of variation of the MAOA gene and childhood maltreatment noticeably predisposes a person to antisocial behaviour. Moreover, further scientific research shows that individuals with the MAOA gene have to some degree difficulties in controlling their impulses. Based on the evidence of MAOA, some criminal accused claimed difficulties in self-control. In the first case – the famous case of Mobley – the court rejected the MAOA evidence on the ground of the lack of scientific support. In contrast, in other cases after the Mobley trial, courts accepted the evidence of MAOA. In this paper, the issue of lack of impulse control produced by the MAOA gene and cases which relied on the MAOA evidence and successfully being accepted will be reviewed in detail. Finally, the anticipation of the paper for the future use of the MAOA evidence in criminal cases will be presented.

Keywords: genetic defence, criminal responsibility, MAOA, self-control

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Authors: Laura Ramona Nae

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The issue of risks faced by companies providing tourist and hotel services in the HoReCa field, related to the goods belonging to consumer tourists left in hotel storage, has acquired a new dimension in the context of the economic and geo-political influences that have recently intervened at the global level. Thus, hoteliers and not only had to create contractual mechanisms regarding the risks and to protect the businesses in this field of activity. This situation has led to a reassessment of the importance of insurance, in particular with regard to hotel liability insurance-premises liability, safety, and security of goods. Interpretation of clauses in contracts concluded between hoteliers and tourists consuming hotel services and products, all the more so in the current pandemic context of Covid 19, stressed the increase in the number of disputes generated by them. This article presents a general picture of the significance of the risks related to the activity carried out in the hospitality industry, tourism, respectively within the HoReCa field. The study mainly marks the specificities of the hotel deposit contract, as well as the related insurance specific to the field, as a way to cover these risks. The article also refers to alternative methods of out-of-court settlement of disputes (ADR) in the HoReCa domain, generally used in both Romania and the European Union.

Keywords: consumer tourist, disputes and ADR methods, deposit contract, hotel warehouse and hotelier insurance, hotel services and tourist products, HoReCa

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Authors: Oyekan Kolawole Jamiu

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The right to life is a moral principle based on the belief that a human being has the right to life and, in particular, should not be unjustly killed by another human being. However, the most worrisome security challenge in Nigeria which has cut short the lives of innocent Nigerians is the activities of the dreaded terrorist group known as Boko Haram (which means Western Education is a sin). Between 2004 till date, over 15000 people have been gruesomely murdered by this terrorist group. However, despite the facts that suspected terrorists are arrested and paraded almost on a daily basis, cases of terrorism in our courts in Nigeria today have not been expeditiously dealt with by the judiciary. This paper examines the concept of right to life. The right to life is an inherent right for each and every person. From his or her birth; the individual is considered a living being that must be protected. The right to life connotes also right to live and grow in a healthy environment where there is appropriate health care, qualitative education and adequate security of lives and property. The paper also examines the fight against terrorism and the duty of the government to protect right to life of every individual even in the midst of the fight against terrorism. The paper further reviews the Terrorism Act 2011(as amended) and the clogs in the wheel of prosecution of suspected terrorists. The paper concludes that since terrorism is a new security challenge, to prevent conflict of interest, only one security agency should be trained and saddled with the responsibility of prosecuting suspected terrorist, Law should be enacted to compel intelligent gathering and sharing of information among security agencies and in addition, a special court should be established to deal expeditiously with cases of terrorism in Nigeria.

Keywords: terrorism, intelligent gathering, right to life, prosecution

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Authors: Iyad Jadalhaq, Mohammed El Hadi El Maknouzi

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The place of Islamic law in the legal system of the UAE is best understood by introducing a differentiation between its role as a formal source of law and its influence as a material source of law. What this differentiation helps clarify is that the corpus of Islamic law constitutes a much deeper influence on adjudication, law-making and the legal profession in the UAE, than it might appear at first sight, by considering its formal position in the division of labor between courts, or legislative lists of sources of law. This paper aims to examine the role of Shariah in the UAE private law system by determining the comprehensiveness of Sharia in the legal system as a whole, and not in a limited way related to it as a source of law according to Article 1 of the Civil Transactions Law. Turning to the role of the Shariah as a formal source of law, it is useful to start from Article 1 of the UAE Civil Code. This provision lays out the formal hierarchy of sources of UAE private law, these being legislation, Islamic law, and custom. Hence, when deciding a civil dispute, a judge should first refer to positive legislation in force in the UAE. Lacking the rule to cover the case before him/her, the judge ought then to refer directly to Islamic law. If the matter lacks regulation in Islamic law, only then may the judge appeal to custom. Accordingly, in connection to civil transactions, Shariah is presented here, formally, as the second source of law. Still, Shariah law addresses many other issues beyond civil transactions, including matters of morals, worship, and belief. However, in Article 1 of the UAE Civil Code, the reference to Islamic law ought to be understood as limited to the rules it lays out for civil transactions. There are four main sets of courts in the judicial systems of the UAE, whose competence is based on whether a dispute touches upon civil and commercial transactions, criminal offenses, personal statuses, or labor relations. This sectorial and multi-tiered organization of courts as a whole constitutes an institutional development compatible with the long-standing affirmation in the Shariah of the legitimacy of the judiciary. Indeed, Islamic law authorizes the governing authorities to organize the judiciary, including by allocating specific types of cases to particular kinds of judges depending on the value of the case, or by assigning judges to a specific place in which they are to exercise their jurisdictional function. In view of this, the contemporary organization of courts in the UAE can be regarded as an organic adaptation, aligned with Shariah rules on the assignment of jurisdictional authority, to the growing complexity of modern society. Therefore, we can conclude to the comprehensive role of Shariah in the entire legal system of the United Arab Emirates, including legislation, a judicial system, institutional, and administrative work.

Keywords: Islamic jurisprudence, Shariah, UAE civil code, UAE private law

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Authors: Mahdi Karimi

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

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

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Authors: Liu Jiaxin

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This paper seeks to do an in-depth investigation on the phenomenon of Early Modern era (1500-1700s) Livonian werewolves. Noting their uniqueness in comparison to contemporaneous werewolves hailing from other geographic areas, the paper suggests that the Livonian werewolf is a metaphor for Livonian society at that time, one which was characterized by social turmoil and strict class hierarchy. This metaphor was utilized by different classes to establish their own interests in society, and thus the paper concludes that the werewolf is a mutable artifact whose value is contingent on its social context. This is demonstrated by the particular case of Old Thiess—a poor, elderly Livonian peasant who gave an unorthodox and anomalous testimony when accused of being a werewolf. In his court statement, it is shown how Thiess was, in fact, alluding to social tensions by lambasting the rich German elite and establishing the righteousness of the peasantry, of which he was a member. A close reading method was utilized on the trial transcript of Old Thiess with heavy reference to Carlo Ginzburg and Bruce Lincoln’s collaborative work Old Thiess, a Livonian werewolf: a classic case in comparative perspective. Through a contextual reading of Livonia’s social atmosphere, the paper draws connections between the content of the trial to wider societal disturbances happening at the time. The thesis—that the werewolf is a flexible metaphor for the social milieu—is further buttressed by numerous contemporaneous sources that had similar messages as Thiess’ transcript, which are discussed as well.

Keywords: early-modern baltic, Livonia, Old Thiess, social history, werewolves

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Authors: Konesh Navsaria, Itumeleng Ramodumo

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The study explored university students’ perceptions of cannabis use on academic life at a higher education institution (HEI) in Nelson Mandela Bay, South Africa. Cannabis is described as the most commonly-used drug by youth, especially those who are in tertiary institutions. The use of cannabis has both negative and positive effects; this is evident in different areas of human functioning. Cannabis usage has been debated upon in courts regarding its legalization and decriminalization, and on the 18th of September 2018, the South African High Court decriminalized cannabis for personal use. Cannabis use has increased in academic settings, and this has raised concerns about how it affects the mental health of students. A qualitative approach was used for the study with an explorative, descriptive design. Purposive sampling was used to select 15 participants for the study. Data were collected using focused-group interviews, following ethical clearance from the HEI. The collected data were analyzed and interpreted using thematic analysis, and cognitive behavioural theory was used as the theoretical framework. The research findings indicated both positive and negative influences of cannabis use on mental health. Most participants who expressed positive effects have used cannabis before, whereas most participants with negative perspectives of cannabis use on mental health are non-cannabis users. The findings revealed that participants perceived that the quantity of cannabis smoked determined whether there was a positive or negative effect on mental health; that is, large doses of cannabis were perceived as having negative effects. The research findings also revealed that the legalization of cannabis is very likely to increase its use and also highlighted precautionary measures users take to avoid the substance’s negative effects on mental health.

Keywords: cannabis use, mental health, university students, legalization

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Authors: Habson Batubara, Patawari, Lisa Mery, Mohammad Syaichuddin, Sitti Faridah, Hamzah, Akmal, Abdul Gafur, Iman Sudrajad, Lideman, Yuani Mundaya, Kamaruddin, Muslimin, Herlina Jompa, Joula Sondack, Nani Undap, Suciati, Elisa Winanda, Arfandi Amin, Suciati

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This study aims to determine the status of the law, legislation, and its implementation against Foreign Nationals (WNA) Illegal Fishing Business Actors in the waters of the Indonesian Exclusive Economic Zone (EEZ), based on the Indonesian Positive Law and UNCLOS 1982. The research method used is normative juridical with a qualitative approach to study the Fisheries Criminal Verdict (Tipikan) and the Bitung District Court / Fisheries SIPP from 2019 to 2020. The results showed that cases of Illegal Fishing by Foreign Nationals (WNA) in the Indonesian Exclusive Economic Zone (EEZ) were examined, tried, and decided in accordance with the fisheries law, criminal sanctions were not in accordance with and contrary to Indonesian positive law, both criminal law and fisheries law, but followed and were in line with UNCLOS Year 1982. Legal status and responsibility are only imposed on the master as the leader on board the ship as the representative of the ship owner/company. Meanwhile, the application of Indonesia's positive law to Unclos in 1982 was only in the form of fines and confiscation of evidence as an effort to seek compensation for illegal fishing activities in the waters of the Indonesian Exclusive Zone (EEZ).

Keywords: EEZ, illegal fishing, WNA, positive law, Unclos 1982

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Authors: Beata Anna Bronowicka

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Purpose The purpose of this paper is to improve effectiveness of mediation in family matters regarding child protection in Australia and Poland. Design/methodology/approach the methodological approach is phenomenology. Two phenomenological methods of data collection were used in this research 1/ a doctrinal research 2/an interview. The doctrinal research forms the basis for obtaining information on mediation, the date of introduction of this alternative dispute resolution method to the Australian and Polish legal systems. No less important were the analysis of the legislation and legal doctrine in the field of mediation in family matters, especially child protection. In the second method, the data was collected by semi-structured interview. The collected data was translated from Polish to English and analysed using software program. Findings- The rights of children in the context of mediation in Australia and Poland differ from the recommendations of the UN Committee on the Rights of the Child, which require that children be included in all matters that concern them. It is the room for improvement in the mediation process by increasing child rights in mediation between parents in matters related to children. Children should have the right to express their opinion similarly to the case in the court process. The challenge with mediation is also better understanding the role of professionals in mediation as lawyers, mediators. Originality/value-The research is anticipated to be of particular benefit to parents, society as whole, and professionals working in mediation. These results may also be helpful during further legislative initiatives in this area.

Keywords: mediation, family law, children's rights, australian and polish family law

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Authors: Zahra Mohagheghian, Fatema Agharebparast

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The comparative study of religions is one of the ways which provides peace and makes the believers of religions closer together. Finding the common notions could be a foundation for the dialog among the monotheistic religions and a background to eliminate the misunderstandings and to reach common point of views. The cornerstone of all the common efforts of the believers of the religions is to reach an understanding for building a better world where true peace is established. So, the article seeks to verify the notion of positive thinking in the religious resources of Islam and Christianity. In order to understand the foundations of the religious teachings and to provide a better understanding among the believers, then, the article tries to discover the common fundamentals and the opposing points about the positive thinking in these two religions. We first try to explain the notion of positive thinking in Islam and Christianity and then offer recommended ways in both religions to create and to strengthen this way of thinking. As the different parts of the New Testament is not theologically homogeneous, this collection has been verified and explained in four different parts: Three Gospels (Matthew, Mark and Luke), John's thoughts, thoughts and ideas of Paul and finally the Christian sects . The findings of the survey show that the notion of positive thinking in the monotheistic religions of Islam and Christianity can be traced back by the keyword "hope". It is only the hope which could finally create the soul of positive attitude and thinking inside the humankind. This hope is accompanied by the prospect and causes the humankind to work hard to reach their goals. However, there are some opposing points in these two religions about the basic foundation of this true hope. From the Quran viewpoint, the main foundation of the hope is God and the human is obliged to follow his worldly goals in accordance with this foundation as well as faith to God and avoidance of committing sins. On the other hand, the basic foundation of hope in the Three Gospels (Matthew, Mark and Luke) and the teachings of Paul is the promise of a coming Kingdom. Although there are some opposing views about the meaning of this as well as the ways to attain this hope, this hope is generally related to the purpose of human life and afterlife. The Christ, in the John's thoughts, is the source of hope and everybody, believing in God, must also have hope for Jesus Christ. Effects and functions of such hope are strengthening the spirit of love and kindness to others. Hence, in Christianity, the hope and positive thinking about the future, along with good deeds, reflects different viewpoints. On the other hand, in Quran, this is faith to God and fulfilling the Sharia orders which ignite and strengthen this hope and way of thinking. This is the base that continues nowadays with Vilāya and the love for Ahlulbeit in the Shiite views.

Keywords: God, new testament, positive thinking, Quran

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Authors: Alina Hamid Bari

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Intellectual Property (IP) policies of a country have a huge impact on the pharmaceutical industry as this industry is all about patents. Developed countries have used IP protection to boost their economy; developing countries are concerned about access to medicine for poor people. U.S. company, Pfizer had a monopoly for 14 years for Lipitor and it all came to end when Pfizer decided to operate in India. This research will focus at the effects of Indian IP policies on USA by comparing Pfizer & Ranbaxy with regards to Trade Related Aspects of Intellectual Property Rights. For this research inductive approach has been used. Main source of material is Annual reports, theory based on academic books and articles along with rulings of court, policy statements and decisions, websites and newspaper articles. SWOT analysis is done for both Pfizer & Ranbaxy. The main comparison was done by doing ratio analysis and analyses of annual reports for the year 2011-2012 for Pfizer and Ranbaxy to see the impact on their profitability. This research concludes that Indian intellectual laws do affect the profitability of the U.S. pharmaceutical industry which can in turn have an impact on the US economy. These days India is only granting patents on products which it feels are deserving of it. So the U.S. companies operating in India have to defend their invention to get a patent. Thus, to operate in India and maintain monopoly in market, US firms have to come up with different strategies.

Keywords: atorvastatin, India, intellectual property, lipitor, Pfizer, pharmaceutical industry, Ranbaxy, TRIPs, U.S.

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Authors: T. Manesh, Abdalla A. Alameen, M. Mohemmed Sha, A. Mohamed Mustaq Ahmed

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Email and instant messaging applications are foremost and extensively used electronic communication methods in this era of information explosion. These applications are generally used for exchange of information using several frontend applications from various service providers by its users. Almost all such communications are now secured using SSL or TLS security over HTTP communication. At the same time, it is also noted that cyber criminals and terrorists have started exchanging information using these methods. Since communication is encrypted end-to-end, tracing significant forensic details and actual content of messages are found to be unattended and severe challenges by available forensic tools. These challenges seriously affect in procuring substantial evidences against such criminals from their working environments. This paper presents a vibrant forensic exploration and architectural framework which not only decrypts any communication or network session but also reconstructs actual message contents of email as well as instant messaging applications. The framework can be effectively used in proxy servers and individual computers and it aims to perform forensic reconstruction followed by analysis of webmail and ICQ messaging applications. This forensic framework exhibits a versatile nature as it is equipped with high speed packet capturing hardware, a well-designed packet manipulating algorithm. It regenerates message contents over regular as well as SSL encrypted SMTP, POP3 and IMAP protocols and catalyzes forensic presentation procedure for prosecution of cyber criminals by producing solid evidences of their actual communication as per court of law of specific countries.

Keywords: forensics, network sessions, packet reconstruction, packet reordering

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Authors: Nayer Fardows, Zarash Nayer, Sarah Nayer Jaffar, Daud Nayer

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This paper analyses the issues related to communal properties of minorities in the cantonment area of Pakistan allotted in the mid-eighteenth centuries by the British Government to facilitate soldiers. These properties were old grants on which churches, institutes, hospitals, and residences were built. The ownership of these properties remained with British Government, but after the creation of Pakistan, changes by putting Government of Pakistan as the landlord of the property disturbed the inheritors as they remained as, holder of occupancy. The government of Pakistan issued a policy in 1997 to convert the status of old grant properties to regular lease. However, heavy taxes and high court’s decisions made it difficult to solve the issue. The study was conducted on six old grant properties of Edwardes College Peshawar cantonment situated in Khyber Pakhtunkhwa, Pakistan. The paper is descriptive research with a qualitative approach collecting data through government rules, acts, ordinance and decisions of the high courts. The result leads to three aspects; 1) holder of occupancy status of old grant properties in cantonment is similar as allotment of other properties by the government, 2) imposition of heavy taxes on conversion of property from old grant to regular lease restricted inheritors to further construct or transfer, 3) imposition of higher courts ban on conversion of communal properties contradict government policy of conversion. The paper recommends the Government of Pakistan a solution to maintain the status quo for communal properties that fall within the old grant.

Keywords: British Government, communal properties, cantonment, old grant, institutions

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Authors: Chintan Chandrachud

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When primary legislation is challenged for breaching fundamental rights, many courts around the world adopt interpretive techniques to avoid finding such legislation incompatible or invalid. In the UK, these techniques find sanction in section 3 of the Human Rights Act 1998, which directs courts to interpret legislation in a manner which is compatible with European Convention rights, ‘so far as it is possible to do so’. In India, courts begin with the interpretive presumption that Parliament intended to comply with fundamental rights under the Constitution of 1949. In comparing rights-compliant interpretation of primary legislation under the Human Rights Act and the Indian Constitution, this paper makes two arguments. First, that in the absence of a section 3-type mandate, Indian courts have a smaller range of interpretive tools at their disposal in interpreting primary legislation in a way which complies with fundamental rights. For example, whereas British courts frequently read words into statutes, Indian courts consider this an inapposite interpretive technique. The second argument flows naturally from the first. Given that Indian courts have a smaller interpretive toolbox, one would imagine that ceteris paribus, Indian courts’ power to strike down legislation would be triggered earlier than the declaration of incompatibility is in the UK. However, this is not borne out in practice. Faced with primary legislation which appears to violate fundamental rights, Indian courts often reluctantly uphold the constitutionality of statutes (rather than striking them down), as opposed to British courts, which make declarations of incompatibility. The explanation for this seeming asymmetry hinges on the difference between the ‘strike down’ power and the declaration of incompatibility. Whereas the former results in the disapplication of a statute, the latter throws the ball back into Parliament’s court, if only formally.

Keywords: constitutional law, judicial review, constitution of India, UK Human Rights Act

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Authors: M. L. Mesquita, V. H. Ferreira, C. M. Cebola

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Mediation is an increasingly important mechanism, particularly in the European context, as demonstrated, for example, by the publication by the European Union of the Directive 2008/52/EC on certain aspects of mediation in civil and mercantile matters. Developments in international trade and globalization in this new century have led to an increase of the number of litigations, often cross-border, and the courts have failed to respond adequately. From the economic point of view, competitive negotiation can generate negative external effects in social terms. Not always the solution found in court is the most efficient solution taking into account all elements of society. On the other hand, the administration of justice adds in economic terms transaction costs that can be mitigated by the application of other forms of conflict resolution, such as mediation. In this paper, the economic benefits of mediation will be analysed in the light of various studies on the functioning of justice. Several theoretical arguments will be confronted with empirical studies to demonstrate that mediation has significant positive economic effects. In the Portuguese legal system, legislative frameworks for mediation display a state committed to creating a new architecture for the administration of justice, based on the construction of a multi-faceted legal system for dispute resolution mechanisms. Understanding the way in which the system of mediation in Portugal was introduced, allows us to point out that our internal ordering is creating the legal instruments which can assist citizens in the effective protection of their rights. However, data on the use of mediation in concrete proceedings and the consequent effectiveness of mediation in settling disputes, reveal a mechanism that is still far from the ideal results that were initially sought.

Keywords: access to justice, alternative dispute resolution, mediation, litigation

Procedia PDF Downloads 135

Authors: Daniel Pinheiro Da Silva Junior, Aline Paes, Daniel De Oliveira, Christiano Lacerda Ghuerren, Marcio Duran

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The Courts of Accounts are institutions responsible for overseeing and point out irregularities of Public Administration expenses. They have a high demand for processes to be analyzed, whose decisions must be grounded on severity laws. Despite the existing large amount of processes, there are several cases reporting similar subjects. Thus, previous decisions on already analyzed processes can be a precedent for current processes that refer to similar topics. Identifying similar topics is an open, yet essential task for identifying similarities between several processes. Since the actual amount of topics is considerably large, it is tedious and error-prone to identify topics using a pure manual approach. This paper presents a tool based on Machine Learning and Natural Language Processing to assists in building a labeled dataset. The tool relies on Topic Modelling with Latent Dirichlet Allocation to find the topics underlying a document followed by Jensen Shannon distance metric to generate a probability of similarity between documents pairs. Furthermore, in a case study with a corpus of decisions of the Rio de Janeiro State Court of Accounts, it was noted that data pre-processing plays an essential role in modeling relevant topics. Also, the combination of topic modeling and a calculated distance metric over document represented among generated topics has been proved useful in helping to construct a labeled base of similar and non-similar document pairs.

Keywords: courts of accounts, data labelling, document similarity, topic modeling

Procedia PDF Downloads 139