Common Law Research Articles

International Aspect of PRC Information Security Policy

This article examines the international aspect of China’s information security policy. Due to the fact that the information sphere is becoming increasingly important in relations between states, the appeal to the policy of one of the leading international actors — the People’s Republic of China — is in demand and relevant. China’s experience in ensuring information security may be in demand in other countries, including the Russian Federation.Aim. The purpose of the article is to characterize the international aspect of China’s information security policy and to reveal the specifics of China’s interaction with other countries in this area.Tasks. To achieve this goal was conducted a review of key international documents ensuring the international information security of the People’s Republic of China, as well as the country’s domestic legislation in this area. Also the issue of confrontation between China and the United States in the information space was considered.Methods. The study employs the historical method to examine the development of China’s information security system, document analysis to review China’s domestic and international legislation in the field of information security, and comparative analysis to compare the approaches of different countries in the field of cybersecurity.Results. The conducted research highlights the following key outcomes: In the context of the Shanghai Cooperation Organization (SCO), Сhina demonstrates a commitment to the joint development of international legal norms in the field of information security, as well as actively participates in the creation of cooperation agreements in this area, emphasizing the state’s role as an advocate for a multipolar world in cyberspace. Within the framework of interactions with the BRICS countries, China aims to deepen cooperation in the field of information security through a series of initiatives and agreements aimed at developing common approaches and standards. This cooperation contributes to the creation of a unified protection system in the information sphere among the BRICS countries, strengthening their positions in the international information space. In relations with the United States of America, the interaction of China is characterized by competition and confrontation, especially in the context of cybersecurity. This includes differences in approaches to regulating the information space and cyber espionage. Nonetheless, existing contradictions and conflicts underscore the need for dialogue and cooperation to develop common international rules of behavior in cyberspace, which can contribute to ensuring international information security and stability.Conclusions. The international aspect of the China’s information security policy reveals various forms of interaction with other countries, each with its unique features. These relationships form a multi-level system of international information security, in which the PRC plays a key role, aiming to create a balanced and secure information space.

The Disavowal of Decisionism: Politically Motivated Exits from the U.S. Courts of Appeals

Abstract The impartiality and apolitical nature of the American judiciary are key to its legitimacy and the liberal constitutional legal system it supports. Though less than 1 % of U.S. Federal judges admit to political motivations for retirement or resignation, our research suggests these influences are more widespread. Examining data from 1802 to 2019, we found 11 % of retirements and 23 % of resignations from the U.S. Courts of Appeals may be linked to political cycles. Judges are less likely to retire before a Presidential election when the President is from a different party than their appointing party, and more likely to resign after the election if the President is from their appointing party. These politically motivated exits have grown, accounting for 14 % of retirements since 1975, which points to a more politically charged and polarized judiciary. Previous studies relying on self-reports or annual analyses have missed these political dynamics in judges’ departure timing. Our quarter-to-election level analysis reveals that significant decisions by Federal judges may often be influenced by unconscious bias or conscious partisan loyalty, both of which challenge the idea of judicial neutrality and the common law precedents judges must uphold. Our findings support growing concerns about undemocratic political power being exercised through the courts, giving rise to juristocracy – the practice of engaging in politics under the guise of legal proceedings.

TINDER SWINDLERS: SUBSTANTIVE AND PROCEDURAL MATTERS PERTAINING TO ONLINE DATING FRAUD UNDER THE COMMON LAW AND THE CYBERCRIMES ACT

The proliferation of online dating scams or fraud has presented a significant threat to users of online dating platforms globally. Scammers misrepresent themselves as would-be lovers, usually employing false identities, in order to defraud unsuspecting victims of large sums of money. Not only do romance scammers cause great financial harm to their victims, but also often leave victims with long-term psychological scars. As both the common law and the Cybercrimes Act 19 of 2020 address instances of fraud, both may potentially be employed to address the issue of online dating fraud. The State may charge an accused with both offences, but a conviction based on both would probably constitute a duplication of convictions. The offence of cyber fraud under the Cybercrimes Act may however be more onerous to prove, owing to the particular way that cyber fraud must be committed under section 8. A conviction based on the Cybercrimes Act may, however, be more attractive to the State as certain minimum sentences apply, depending on the amount defrauded, whether the accused was a law enforcement officer, whether someone was in charge of or had access to the data belonging to others, and whether the offence was committed in concert with others.

How do we justify research into enhanced warfighters?

State militaries have strong interests in developing enhanced warfighters: taking otherwise healthy service personnel (soldiers, marines, pilots, etc.) and pushing their biological, physiological, and cognitive capacities beyond their individual statistical or baseline norm. However, the ethical and regulatory challenges of justifying research into these kinds of interventions to demonstrate the efficacy and safety of enhancements in the military has not been well explored. In this paper, we offer, in the context of the US Common Rule and Institutional Review Board framework, potential justifications for justifying research into enhancing warfighters on the grounds of (i) individual and group risk reduction; (ii) protection of third parties such as civilians; and (iii) military effectiveness.

Inequality in Africa: Does injustice matter?

AbstractThe following study aims to investigate the impact of injustice on income inequality in Africa between 2000 and 2020. Both male and female injustice levels are evaluated using gender‐specific scores to indicate the injustice suffered by both genders. The study utilized the Gini and Palma ratios as proxies for income distribution inequality. After addressing error term‐related problems with the Newey‐West Standard Corrected Error approach, the findings indicate that injustice is a significant contributor to inequality in Africa, especially for females, with little evidence of male injustice. The results are consistent for both middle and low‐income countries that adopted the French civil law and English common law systems to govern their institutions. Additionally, the study found that educational development and basic welfare maintenance contribute to reducing inequality in Africa, which is exacerbated by many barriers to political inclusion. To address the gender bias in income distribution, policymakers in Africa should design policies that provide equal access to justice for both male and female populations. The study also suggests adopting policies that enhance human capital accumulation and political inclusion in‐state activities to create a safe, just, and equal environment.

“Pecunia Olet” (Sometimes): A comparative analysis of Italian and UK legislations on combating the infiltration of organised crime into the economy

This article conducts a comparative analysis of Italian and UK legislations concerning the infiltration of organised crime into the economy. Considering (among other things) the concerns about allegedly weakened cooperation between judicial authorities of Italy and the UK in a post-Brexit era, the study evaluates the alignment of legal frameworks of the compared systems in combating the integration of organised crime and economic crime. The analysis is conducted on four levels: direct criminalisation of organised crime, the use of (also) anti-terrorism legislation to tackle organised crime, measures against wealth accumulation through crime, and provisions for corporate liability. By comparing the legal systems of Italy and the UK, which represent civil and common law traditions respectively, this study aims to identify convergences and divergences in legal approaches. The findings could inform strategies for enhancing mutual trust and fostering more effective international cooperation in combating the infiltration of organised crime into legitimate businesses, particularly in the post-Brexit context.

The Moral Justification and Necessity of Torture in the Context of Suspected Terrorists

This essay examines the moral permissibility and necessity of using torture on suspected terrorists, particularly in the context of the “ticking bomb” scenario. The paper is divided into two parts. Part I critiques the deontological arguments against torture, highlighting the weaknesses in the absolutist stance that prohibits torture under any circumstances. It argues that in specific situations, the rights of victims justify a self-defence response, which can be executed by authorities on their behalf. Part II explores the common law doctrine of necessity, demonstrating that under certain conditions, torture is both necessary and reasonable. The essay concludes with a proposal for “torture warrants” to legalize and regulate the use of torture in specific, extreme cases, ensuring accountability and minimizing misuse.

Comparative Analysis of Government Communication Strategies in Environmental Law Enforcement: A Case Study of Indonesia (DKI Jakarta) and Singapore

This study explores the communication strategies of Indonesia and Singapore in enforcing environmental law, particularly in the context of the Awyu and Moi tribes' refusal to give up their customary forests for palm oil plantations. Using a descriptive-comparative qualitative method, it highlights the differences in the two countries' environmental legal frameworks and communication approaches. With a low Environmental Performance Index (EPI) rating, Indonesia struggles with bureaucratic challenges in implementing its environmental laws, based on the 1945 Constitution and the 2009 Law on Environmental Protection and Management (UUPPLH). In contrast, Singapore ranked fourth globally for environmental quality, uses a common law system and specific legislation, such as the Environmental Protection and Management Act, with specialized regulatory agencies ensuring effective law enforcement and communication. Based on the WHO Strategic Communications Framework, the analysis reveals that Indonesia faces infrastructure and internet access issues and a lack of coordination between community initiatives and the central government. Conversely, Singapore effectively uses technology and media to spread environmental information, supported by well-structured community programs and strong government support. The study emphasizes the crucial role of strategic communication in enforcing environmental law and the need for Indonesia to streamline its law enforcement and improve its communication strategies for better environmental protection.

Exercising legal personhood: wives in contractual litigation over moveable property in nineteenth-century New Zealand

In October 1884, New Zealand followed legislative reform taking place across the common law world that addressed married women’s legal position by passing its version of the Married Women’s Property Act. The Acts, both in New Zealand and in other common law jurisdictions, recognised wives as autonomous legal subjects by mitigating the inhibiting doctrine of coverture that had restricted married women’s ability to own or control property, or act as legal persons. However, wives’ presence in contractual litigation involving moveable property in the colonial courts of New Zealand prior to the reforms shows that, despite coverture, wives enacted degrees of legal personhood through several intricate legal mechanisms. The Married Women’s Property Act 1884 had no significant impact on the economic activity of wives. Furthermore, women’s social, legal, and economic position in relation to moveable property remained as diverse and legally complicated as it did prior to the Act.

Constitutional Fallacies

ABSTRACT Defenders of epistemic democracy propose that the “wisdom of the many” will result in superior outcomes: in this context, they hold that widespread participation will yield better constitutional norms. While this argument, featured prominently in Hélène Landemore’s recent work, raises significant normative concerns, this essay focuses on the causal mechanism it posits and the evidence adduced for the claim. Drawing on Jeremy Bentham’s critiques of common lawyers’ claims to wisdom, this essay argues it is better to defend inclusivity on the grounds that it will promote the people’s interests, rather than on the epistemic value of popular participation.

Common anion rule in oxide heterointerfaces: Experimental verification by in situ photoemission spectroscopy

The band alignment at the interface is one of the fundamental parameters for designing electronic devices and artificial functional materials. However, there is no firmly established guideline for oxide heterostructures, limiting the functional design of oxide heterostructures. Here, we provide spectral evidence that the band diagram of oxide heterointerfaces is well described by the Zhong and Hansmann scheme based on the common anion rule [Z. Zhong and P. Hansmann, Phys. Rev. X 7, 011023 (2017)]. By utilizing the elemental selectivity of Ti 2p–3d resonant photoemission for the Ti 3d state near the Fermi level, we directly visualize the presence or absence of charge transfer from the overlayer films to SrTiO3 in prototypical heterointerfaces of SrVO3/SrTiO3 and SrNbO3/SrTiO3. It is found that the charge transfer occurs in SrNbO3/SrTiO3 but not in SrVO3/SrTiO3, as predicted by the Zhong and Hansmann scheme, indicating that the presence or absence, as well as the sign and amount, of interfacial charge transfer is predicted by this scheme. Our findings provide guidelines for designing and controlling the functionalities in oxide nanostructures.

A NEWCOMER TO MARITIME LAW: THE BEIJING CONVENTION ON THE INTERNATIONAL EFFECTS OF JUDICIAL SALES OF SHIPS

AbstractOn 7 December 2022, the United Nations General Assembly adopted a treaty known as the Beijing Convention governing the recognition abroad of the international effects of judicial sales of ships. This article explores the rationale for a specific Convention on this issue, and its interaction with other relevant international conventions. It then analyses the recognition approach adopted by the Convention and evaluates its potential strengths and weaknesses. While some provisions might need further consideration, the overall conclusion is that the Beijing Convention has the potential to strengthen the legal certainty of the purchaser's title obtained via this sale mechanism and thus help debt recovery. Although common law jurisdictions might find it at odds with some of their features, the expected benefits from ratifying it seem to outweigh these issues and are already prompting a steady number of signatures, including those of China, the European Union and Singapore.

Lex Mercatoria로서 인코텀즈의 기능과 한계에 관한 연구

Purpose: Despite being the core of commercial and legal research in international commerce and trade, this paper contributes to establishing the identity of international commerce by dissecting Incoterms, which has been emphasized only by changes in rules due to practical functions and revisions. Research design, data, and methodology: The limitations and implications of Incoterms were determined from a literature search and analysis of statistical data. Results: In general, the common law that appears in international commercial transactions is called Lex Mercatoria, which distinguishes it from the common law. Among the formal transaction conditions of Incoterms, the FOB, CFR (C and F), and CIF conditions are used repeatedly, so they have been established as Lex Mercatoria and have become de facto standards of the trading industry and can be said to be the true Lex Mercatoria. Conclusions: Before Incoterms can be recognized as Lex Mercatoria, it must be established in the industry as a business practice to expand the use of existing Incoterms rather than periodically revising them. Moreover, the ICC must abandon the lingering desire to commercialize the arbitrary rule, Incoterms, and contribute to forming a new Lex Mercatoria through active promotion and marketing.

The sound of silence and the advocacy's forgotten role

This article discusses the old dictum nemo tenetur edere contra se from the point of view of lawyers, identifying ethical profiles in the presentation of evidence in relation to the professional secret and discussing the rationale of the lawyer's role who is entrusted with the task of selecting evidence, both in civil and common law systems.

Evaluating International Criminal Procedures: Inquisitorial, Adversarial, or Hybrid - Lessons for the Pakistani Legal System

This Article examines two key aspects of international criminal procedure (ICP): the normative frameworks that govern ICP and procedures being utilized by International Criminal Tribunals (ICT) and Courts. It examines the established norms and practices of international tribunals. The discussion encompasses the formulation of standards, guidelines, and guarantees aimed at preventing judicial errors. It evaluates that whether ICP can be characterized as "adversarial," "inquisitorial," or “a blend of both”. It examines the case law and legal framework of international courts and tribunals. Employing a comparative and analytical research methodology, this article demonstrates that a genuinely hybrid procedure has emerged through successive amendments to the ICT for the former Yugoslavia and its rules of Procedure and Evidence (RPE) and the formulation of the Rome Statute. This procedure effectively synthesizes elements from both traditions; common law (adversarial) and civil law (inquisitorial) into a cohesive international legal framework. The article emphasizes the convergence of legal positions across jurisdictions. The observed similarities in legal frameworks arise from the universal recognition of the importance of justice in shaping human coexistence. However, the article acknowledges that the diversity in human minds leads to variations in devising solutions and creating means, explaining the inherent disparities in legal approaches across different contexts. It will be beneficial for Pakistan to adopt Islamic Criminal Procedure having hybrid criminal procedure that will improve the efficiency of our judicial system, ensuring swift resolution of criminal cases with effective outcomes.

Russia's Abduction of Children in Ukraine War and Applicability of UN Genocide Convention

The purpose of this paper is to investigate whether Russia's abduction of Ukrainian children falls under the provisions of genocide under international law and to suggest the political implications of Russia's abduction of Ukrainian children. Through this paper, it was pointed out that Russia's policy to annihilate Ukraine's identity in occupied areas before the invasion of Ukraine in 2022, that is, after Russia's occupation of Crimea in 2014, has been continuously implemented, and has been rationalized domestically through the Russian media. The policy of kidnapping Ukrainian children to erase their memories of their homeland and change their mother language to Russia is not just a cultural assimilation policy, but a international crime that is equivalent to “genocide” that forcibly transforms the ethnic character of a group. Today, there is little disagreement on the fact that the prohibition of serious, continuous and systematic human rights violations by the state and the prohibition of genocide have developed into norms under common international law. However, it can be said to be exceptional in that there is no precedent for an international court trial on child abduction after World War II, and there has been no opportunity to recognize its seriousness. Nevertheless, the international community should realize the seriousness of the crime of child abduction in the wake of the Ukraine war and not neglect to hold the kidnappers accountable.

중국 민사소송에서의 온라인 증언 방식에 관한 연구

The role of witnesses in uncovering the truth of a case is very important, and witness appearances in court hold significant meaning in civil litigation. However, witnesses often hesitate to appear due to a lack of time or the court being located far away. Additionally, fear of retaliation from the parties involved leads many witnesses to refuse to testify in court. This results in a low rate of witness appearances, which is recognized as a serious issue in Chinese civil litigation. The advancement of internet technology offers a solution to this problem. By allowing witnesses to testify online, it saves time and costs associated with testifying, and reduces direct contact between witnesses and parties, effectively protecting the safety of witnesses. Therefore, this method of online testimony provides a potential solution to increase witness court appearance rates. However, the current online testimony method has issues such as unclear nature, difficulty in accurately verifying witness identity, and challenges in ensuring the credibility of the testimony. To resolve these issues, it is first necessary to legally clarify the online testimony method as a form of court appearance testimony. Additionally, measures to strengthen the verification of witness identity should be implemented. For example, legislative measures to clearly define penalties for identity theft of witnesses, reinforcing judges' obligations to verify identities, and directly connecting online litigation platforms with systems of third-party agencies like police and administrative authorities to facilitate thorough identity verification. Such measures will prevent identity theft and accurately confirm the identity of witnesses, thus protecting the legitimate rights and interests of parties and enhancing the fairness and efficiency of litigation. Furthermore, to strengthen the credibility of testimony, the following measures can be considered: 1. Establish an online oath system for witnesses, ensuring they understand the legal consequences of false testimony. 2. Emphasize the importance of adhering to court order, ensuring that witnesses follow the same rules online as they would in an offline court. 3. Adhere to the principle of isolated examination, preventing witnesses from being influenced by other witnesses or participants. 4. Utilize the cross-examination method from common law systems to enhance the credibility of testimonies. In conclusion, the method of online testimony can be a useful tool to increase witness court appearance rates, but effective utilization requires legal, technical, and institutional improvements.

Regulation of The Use of Marijuana for Medical Purposes: A Comparison of Civil Law and Common Law Legal Systems

This study aims to determine the Regulation of the Use of Marijuana for Medical Purposes: Comparison of Civil Law and Common Law Legal Systems. This research uses normative juridical research methods using literature studies derived from Legislation, scientific journals, books related to medical cannabis discourse and analyzed qualitatively. Regulations related to Class I Narcotics in Indonesia are regulated in Law Number 35 of 2009 and Regulation of the Minister of Health of the Republic of Indonesia Number 30 of 2023. The use of cannabis as medicine is an urgent need. European countries are at the forefront of legalizing medical cannabis. Some European countries with a Civil Law legal system have different regulations in legalizing marijuana for medical purposes based on ownership restrictions. Meanwhile, countries with a Common Law legal system establish medical cannabis legalization policies based on the needs of patients, the quality of health provision, and the protection of patient rights. This study concludes that countries with a Common Law legal system have a pragmatic, case-based legal style that functions through logical reasoning while countries with a Civil Law legal system are more about practical implications.

You Stole Our Land: Common Law, Private Property, and Rothbardian Principles of Justice

Demands for justice based on allegations that “you stole our land” seem to evolve interminably without resolution. In responding to these demands it seems trite to observe that the law must not let the violation of rights go without a remedy, but how should property law resolve cases of wrongful acquisition arising from historical conquest? It is easy to say in the abstract that stolen property must be returned to the true owner, but in the context of historical dispossession it is often difficult to identify the “true owner” when centuries have elapsed since the alleged dispossession. Based on a comparison between the common law tradition and Rothbardian principles of property rights, this article argues that the “stolen land” debates are characterized by arbitrary and unprincipled distinctions between different cases. Far from resolving any disputes, that approach only fuels fresh rounds of hostility and conflict. Allegations of wrongful acquisition of title must instead be evaluated by reference to an ethical theory of justice based on objective principles of natural law.

The impact of a breast cancer diagnosis on marital outcomes and factors associated with divorce and separation.

To analyze marital outcomes, divorce or separation, and its association with demographic, socioeconomic, and clinicopathological factors among breast cancer (BC) survivors after 2-years of diagnosis. We performed a retrospective analysis of marital status at baseline and at years 1 and 2 of follow-up of women aged ≥ 18 years diagnosed with invasive BC participating in the AMAZONA III (GBECAM0115) study. The BC diagnosis occurred between January 2016 and March 2018 at 23 institutions in Brazil. Of the 2974 women enrolled in AMAZONA III, 599 were married or living under common law at baseline. Divorce or separation occurred in 35 (5.8%) patients at 2 years of follow-up. In the multivariate analysis, public health insurance coverage was associated with a higher risk of marital status change (8.25% vs. 2.79%, RR 3.09, 95% CI 1.39 - 7.03, p = 0.007). Women who underwent mastectomy, adenomastectomy or skin-sparing mastectomy were associated with a higher risk of divorce or separation (8.1% vs. 4.49%, RR 1.97, 95 CI 1.04 - 3.72, p = 0.0366) than those who underwent breast-conserving surgery. Women covered by the public health system and those who underwent mastectomy, adenomastectomy or skin-sparing mastectomy were associated with a higher risk of divorce or separation. This evidence further supports the idea that long-term marital stability is associated with a complex interplay between socioeconomic conditions and stressors, such as BC diagnosis and treatment. ClinicalTrials Registration: NCT02663973.