Balance Of Rights Research Articles

Reconsidering Sentencing Principles in Cases of Civil Disobedience: Cuadrilla Bowland Ltd and Others v Persons Unknown and Others

AbstractCommon law courts have struggled to offer a consistent basis for sentencing in cases concerning civil disobedience. This case note examines the recent Court of Appeal decision Cuadrilla Bowland Ltd v Persons Unknown, concerning individuals convicted of contempt for defying injunction orders to refrain from continuing their direct‐action protests at a fracking site run by an oil company, with a view to immobilising its business operations. The note observes that the Court here offered a more coherent basis for sentencing principles concerning acts of civil disobedience and breaches of injunction orders. The rationales offered transcend traditional distinctions, relied on by some courts, between direct and indirect disobedience and between civil disobedience and contempt, which have brought about considerable analytical difficulties. The judgment further signifies a paradigm shift in the Court's approach to cases of civil disobedience – from emphasising ‘law and order’ to focussing on a ‘balance of rights’.

To the issue of improving the mechanism of drug criminality counteraction

The article deals with the problematic issues of improving the functioning of the mechanism of combating drug crime and on this basis formulated recommendations aimed at improving the legal basis and practice of crimino-logical impact on drug crime. It is concluded that the search for directions of rationalization of the mechanism of combating drug crime can and should be conducted by revealing the degree of influence of the whole management mechanism, its individual elements on the objects of criminological influence in the sphere of combating drug crime, in particular, on the state of law, ensuring public safety, combating crime. The first direction of improvement of the mechanism of combating drug crime is the necessity of a scientifically grounded approach in determining the objective activity for combating drug crime on the basis of objective social needs. The formation of the subject competence of the subjects of combating drug crime must be laid down in three important conditions: first, the prin-ciple of separation of powers, according to which law enforcement agencies are assigned to the executive branch of power; secondly, the protection of only the part of the public relations which the offender encroaches upon by committing a criminal offense can be attributed to the substantive activity of law enforcement agencies; third, law enforcement agencies may be subject only to those relationships that objectively require coercive measures. Another important direction of improving the mechanism of combating drug crime is to bring the crime management system in line with the requirements of scientifically sound principles. These are the principles of balance of rights and re-sponsibilities, personal responsibility of the official for the actions or decisions taken, differentiation of competences of different bodies, divisions and officials, fixing them in the normative legal acts, conformity of the position, deter-mining the main executive level, proportional application coercive measures, etc. It is emphasized that the structural and organizational improvement of the mechanism of combating drug crime necessitates the need to determine the structure - the leader of state policy in this field, as well as the subjects of direct counteraction to drug crime. In view of these circumstances, it is important to create an organizational model of the mechanism for combating drug crime, which would include, first, the enhancement of the status of coordination bodies under the Cabinet of Ministers of Ukraine; secondly, the organizational units in the structure of the executive power of the regional level, which would provide at this level the organization of anti-narcotic activities, especially outside the sphere of law enforcement agencies; third, coordination units providing structurally (by directions): operational-search activities, external intelligence, pre-trial investigation, administrative activities in the field of control over legal drug traffick-ing, providing a single information base on drug trafficking and combating drug crime, other areas counteraction, due to the nature of the complex operational environment.

Let's get the work-life balance right.

If the NHS embraces the new work practices it has adopted in the pandemic, it will improve staff wellbeing and retention, says Sam Foster, Chief Nurse, Oxford University Hospitals, and become an excellent employer.

Надзор фабричной инспекции за промышленными заведениями Российской империи XIX — начала XX веков

The value of supervision over industrial institutions at the stage of active formation of industrial production in Russia in the 19th — early 20th centuries is shown. The role of the factory inspectorate and other state bodies aimed at controlling the production process, as well as the spheres of interaction of the enterprises with the state is defined in the article. Based on the example of the activities of the factory inspectorate, the criteria are formed to determine the desired balance of rights and obligations in the structure of legal relations, which is required to comply with the interests of the state and business entities. Delineation of the powers of the factory inspectorate helps to identify the areas where state control is needed. At the same time, further study of the implementation of control and supervisory functions of the state in the field of industrial production is substantiated. The need to regulate this kind of relationship is indicated considering the modern realities where the merger of technological and organizational processes is objectively taking place, and the algorithms are built into the structure of legal relations. The issues of legal regulation of the industrial sector of the economy raised in the study indicate the unsolved fundamental problems of the theory of law, namely, the scope and significance of technical and legal regulation in the mechanism of management of the society, its scope in the structure of social regulation. The studied historical material allows to assert that the supervision in industry creates the basis for safety and real labor protection at the industrial objects. Introduction of the institute of factory inspectors became an important factor in building the labor protection system at the factories and plants. With the help of this institute, the norms were implemented aimed at ensuring trouble-free functioning, including at explosive and fire-hazardous industries of the Russian Empire in the 19th — early 20th centuries.

The Islamic Perspective on The Improvement of Family Economy in The New Normal

This paper concerns with how to build a balance of rights and obligations of husband and wife in fulfilling the economic needs of the family, especially in unusual circumstances. The paper aims to give an overall picture of the authority of the husband and wife regarding the domestic and public rights in the family, as well as to deal with the issue on family economy during the Covid-19 pandemic. The study of this paper used the explorative-qualitative research methods, with data obtained by disseminating questionnaires and studying documents related to the responsibilities carried out by the husband and wife. An initial investigation was conducted by taking into account the provisions stipulated in the formal legality of positive law. The data were then analyzed by utilizing a descriptive phenomenological approach through the interpretation of the data obtained from observation, interview, documentation, and literature review. The findings of this study indicate that men and women have equal rights. The concept of nature show that there is normative justification between husband and wife, stating that the domestic responsibilities are closely related to the shared rights and obligations that are balanced within the family and society, and that both husband and wife have the same rights in taking legal actions. In this new normal era, to strengthen the economically weak family in the community requires joint co-operation between the husband and wife so that they can meet the needs of the family and create a harmonious family.

Quality of Population Document Service in Subang Regency

The purpose of this study is to provide a description of the service quality of population documents in Subang Regency. The results showed that the Department of Population and Civil Registration of Subang Regency has several tasks related to the quality of population document services in Subang Regency. In this research, the service function is examined from the first point of view, the dimensions of Transparency of Population documents which are currently carried out with Electronic Signatures are conveyed more openly regarding the requirements that must be met and also the completion time set in accordance with the SOP (Standard Operating Procedure). Second, the accountability dimension, the data contained in the Population Administration Information System (SIAK) has not been well integrated with other institutions, so that in terms of responding to public needs and the ability to service Population Documents through Electronic Signatures is not optimal. Third, the conditional dimension, not prioritizing services to people who need Population Documents for the urgent public interest. Fourth, the Participatory dimension, focused on efforts to organize and accelerate programs in each of the Integrated Service Units, this understanding has not been optimal in improving services to the community. Fifth, the dimension of equal rights, in this case the Population and Civil Registration Service, can minimize discrimination in terms of Population Document services. Sixth, the dimension of the balance of rights and obligations is not optimal because service recipients have not met their needs and supervision that should be carried out by direct superiors is often neglected. Keywords: public service; electronic identity card; e-government

Health Crisis Measures and Standards for Fair Decision-Making: A Normative and Empirical-Based Account of the Interplay Between Science, Politics and Courts

This paper examines, in the light of the COVID-19 crisis, the room for judicial oversight of health crisis measures based on the public’s expectations of how governments should act in the interplay with experts. The paper explains how trust theory and procedural rationality review help to address concerns related to legitimacy and expertise. The paper argues that courts should distinguish between two stages. In the initial stage, fear as a driver for government support based on expertise justifies that the proportionality test is limited to the question of whether measures were based on virologist expert advice. In the next stage, people expect the government to take expert-informed decisions, but also require that the government takes into account societal needs. Procedural rationality review in this stage demands that courts examine whether the decision was based on an informed balance of rights and interests.

Vliv covidu-19 na existenci závazku a plnění smluvních povinností

Several legal provisions respond to a substantial change in circumstances in contractual relationships. The performance of a contract may be impossible initially at the time of contract creation, or, more frequently, may become impossible within the existence of the contract. While the former results in invalidity of the contract itself, the latter leads to a discharge of the obligation created by the contract. However, the impossibility of performance is to be distinguished from such a change in circumstances that merely creates a gross disproportion in the rights and duties of the parties by disadvantaging one of them either by disproportionately increasing the costs of the performance or disproportionately reducing the value of the performance. On this basis, the affected party may seek a renegotiation of the contract and the court may decide to revise the obligation in restoring the balance of rights and duties of the parties.

Принципы правового регулирования медицинского страхования

The introduction of health insurance is carried out within the legal framework and the legal regulation of relations with it is based on certain basic and basic principles and principles. Typically, the principles are the basic rules embedded in the content of the norms governing the legal regulation of health insurance, and also serve as a starting point on which to apply and rely when existing norms are insufficient in the regulation of relevant issues. The principles of health insurance also represent the basic rules for the establishment, implementation and regulation of this system from a social, economic, legal and organizational point of view. Their establishment at the legislative level serves to ensure the consistency of the implementation of health insurance activities, to ensure the balance of rights and obligations between the insurer, the insured, the insured and the medical institution.

Fairness in Fair Dealing on the Industrial Design Protection

Fair dealing is one of the important elements in the Industrial Design Legislation. Because of that, it is significant to analyze the concept of fair dealing which can be understood by the society to achieve fairness in the protection of industrial design works. Under industrial design, the concept of fair dealing means that industrial design can be used by other parties for education and research purposes as long as it does not prejudice the interests of industrial design right holders. The purpose of this study is to analyze the value of fairness in the concept of fair dealing in industrial design law, so that it can be used as guidelines for the right holders and the public so they not violate the Industrial Design Law and this Law can also be used to advance the welfare of society. This study is normative legal research by using statute and conceptual approaches. While material used for this study are primary and secondary legal materials. This study found that fairness in the fair dealing in the protection of industrial design can be achieved in the form of fulfilment of balance rights between the designer’s right and society. Fairness for both is if between the right holder and society have the opportunities to use and enjoy available industrial design. Industrial design rights holders have limited monopoly rights and the public has the opportunity to use the results of industrial design in a limited manner for their welfare. This is in line with what Aristotle said that justice is given in accordance with values or propriety that is not the same.

Mechanisms for providing cybersecurity during the COVID-19 pandemic: Perspectives for Ukraine

The article analyses key cybersecurity trends against the background of the COVID-19 pandemic, trends that could lead to an increase in cyber threats. It also looks at cyber threats related to remote work in this period. Foreign experience in counteracting the spread of disinformation online, about COVID-19, has been studied. A global trend for strengthening law enforcement control over cyberspace content, network traffic, and digital devices of users has been identified. It has been established that some states are finding it difficult to counteract the spread of coronavirus-related threats and are sometimes resorting to violating the traditional balance of rights and freedoms of citizens in cyberspace, in fact, legalising cyber-surveillance of citizens. The paper investigates the limits of state intervention in the lives of citizens in the face of a real threat to national security. In matters of cybersecurity in the medical sphere, a shift of emphasis from the problem of protection of personal data of patients to the protection of key functions of the medical sphere is revealed. Mechanisms for implementing cybersecurity to counter the spread of fake news (misinformation) on the internet, about COVID-19, are substantiated. Practical tools and cybersecurity measures used during the COVID-19 pandemic are recommended for Ukrainian authorities. The importance of creating appropriate conditions for ensuring the balance between the implementation of restrictive policies in the field of cybersecurity and ensuring freedom of speech and openness of the internet is proven.

Author Correction: Early-career reflections: Get the balance right

Author Correction: Early-career reflections: Get the balance right

The Reasonable Balancing of Rights and Interests at the Time of Pandemic

This essay starts with the consideration that the precautionary measures adopted by the Italian legislator and the public administration to deal with the pandemic emergency, while highly restrictive of constitutional freedoms, were commonly deemed reasonable and proportionate. It then continues with some recent rulings of the Italian Constitutional Court. The analysis aims to show that the balance of rights implemented by the legislator and judged by the Court is affected by the state of emergency: the state of emergency makes reasonable what, in ordinary conditions, would have been absolutely disproportionate. Proportionality, in fact – which is necessarily inherent to precautionary approach – finds a different balance point according to the context in which the precautionary measures are adopted. In 2006, Italy adopted its pandemic plan, which was never updated as was required in accordance with the WHO guidelines formulated in 2017 and 2018. Nevertheless, the essay points out that the precautionary principle must not only shape the answer to the state of emergency, but also affect its planning and prevention. Moreover, the findings show there was no lack of emergency forecasts or of measures suitable for the pandemic purpose, and that Italy had failed to implement these measures. Therefore, in the long term, the measures adopted by the Italian legislature and the public administration have turned out to be completely unreasonable.

Collision of Fundamental Human Rights and the Right to Health Access During the Novel Coronavirus Pandemic.

Introduction: COVID-19 requires governmental measures to protect healthcare system access for people. In this process, the collision of fundamental rights emerges as a crucial challenge for decision-making.Policy Options and Implications: This policy review analyzes selected articles by the PubMed searcher about extreme measures taken in several countries during precedent pandemics and the current pandemic, and selects hard decisions relating to the exceptional measures taken by judicial departments in Brazil, connecting them to the “collision of fundamental rights and law principles.” The collision of rights and principles imposed on decision makers a duty to provide balanced rights, and to adopt the enforcement of some rights prioritization. Ethical concerns were also verified in this field involving rights limitations. During a pandemic, the importance of extreme measures to protect health rights and healthcare systems is instrumental for focused, fast, and correct decision making to avoid loss of life and the collapse of healthcare systems. The main goals of this research are to discuss the implications and guidelines for public health decision making, the indispensable ethical and legal aspects for safeguarding health systems and the lives of people, and the respect of the Justice principle and of fundamental health and dignity rights. We conclude that COVID-19 justifies the prioritization of collective and individual health access rights. Acceptable standards of fundamental rights restrictions are established at the constitutional and international levels and must be enforced by rules and governmental action, to ensure fast and accurate decision making during a pandemic. Freedom rights exercises must be linked to solidarity for the realization of social welfare, for the health rights of all individuals and for health systems to function well during a pandemic.Actionable Recommendations: All individuals are free and equal, therefore social exclusion is prohibited. Institutions must consider social inequalities when discussing public health measures and be guided by ethical standards, by law principles, and rules recognized by constitutional and international law for the benefit of all during a health pandemic.Conclusions: Collective and individual health rights prevail over the collision of rights when facing pandemic occurrences, case by case, in health systems protection, based on the literature, on precedent pandemics and on legitimate Public Health efforts.

Digital technology to control COVID-19 in China: issues, challenges and implications for the healthcare system

In the current era, public health crises are presenting new systematic and cross-border characteristics and uncertainty. Public health crises are challenges for governments and health systems. The development of digital technology has changed the world and connected it as a “village”, and digital technology has played a critical role in providing support during public health crises over the past three decades. From the perspective of empowerment theory, we explore the role of digital technology in responding to the COVID-19 pandemic and digital technology approaches to controlling COVID-19 in China. Accordingly, we identify the challenges of using digital technology to control public health crises, including the imbalance of the rights and responsibilities of governance subjects, the incompatibility of the governance model and digital technology and the inadequate application of digital technology. Considering implications for the successful prevention and control of COVID-19, we suggest that the government should improve the balance of rights and responsibilities for coordinated crisis governance, link digital technology and the governance system and broaden the grassroots governance community.

DEVELOPMENT OF THE IDEA OF A SOCIAL STATE AND INNOVATIONS OF ARTICLE 75.1 OF THE RUSSIAN FEDERATION CONSTITUTION

A new socially oriented article appeared in the Russian Federation Constitution — Art. 75.1. This article is designed to strengthen mutual trust between the state and society, ensure a balance of rights and obligations of a citizen, the implementation of the social partnership principles, and create the necessary conditions for economic, political and social solidarity. This work is devoted to the formulation of these questions. It shows how conditions are created in Russia for the implementation of the Fourth Industrial Revolution principles to create new models of labor and employment, digitalize all aspects of Russian society life, which have a significant impact on economic growth and improving the well-being of citizens. Russia has enormous potential for achieving the goals set in the country’s socio-economic development and solving problems in achieving sustainable economic growth, which must be successfully implemented. This should inevitably lead to an increase in the standard of living of the majority of citizens, to raise the prestige of a working person by creating conditions for decent work, and the implementation of constitutional guarantees in the sphere of social and labor relations. The latest constitutional innovations are just beginning to undergo scientific comprehension. Their doctrinal interpretation and identification of axiological potential can make a significant contribution to the definition of modern legal principles of constitutional, administrative, labor and many other branches of Russian law. This is the main goal of the proposed research based on an interdisciplinary approach and traditional methods of legal phenomena cognition. The author in the proposed work consistently substantiates the conclusions about the consistency of the new norms introduced into the Constitution with a number of principles previously enshrined in it, as well as their timeliness from the point of view of modern changes in the content of social relations in the world of work.

INCORPORATING ARTICLE 31bis FLEXIBILITIES ON TRIPS PUBLIC HEALTH INTO DOMESTIC PATENT SYSTEM: THE INESCAPABLE WAY FORWARD FOR MALAYSIA

The purpose of this study is to highlight the absence of specific provisions on public health under Article 31bis of the TRIPS Agreement, that were not incorporated into the Patents Act 1983 in Malaysia. The main research question of this study is; why should Malaysia immediately amend its Patents Act 1983 to incorporate these flexibilities? Malaysia must develop effective strategies to implement policies, law and governance in managing the country’s public health system. This is to ensure a balance of rights between intellectual property owners and the public, at all times. This study employs a qualitative research methodology that is based on primary sources such as the TRIPS Agreement and the Patents Act 1983, and is further supported by secondary sources such as journals and the contents of authorities’ websites. This study is limited to the issues related to public health and patents. This study includes a discussion on the provisions related to patents and public health, proposed amendments to the Patents Act 1983 that should incorporate the provisions from Article 31bis, and a conclusion on the importance of immediately amending the Patent Act 1983 to incorporate these provisions, especially during the current Covid-19 pandemic. This study proposes that the amendments be made to Section 84 of the Patents Act 1983 in relation to Rights of Government, and not through the compulsory licence mechanism under Part X of the Patents Act 1983. Thus, this study concludes that currently, Malaysia is unable to implement the provisions under Article 31bis, unless the Patents Act 1983 is amended.

Critérios de ponderação entre o direito de acesso a informações públicas e o direito à proteção de dados pessoais: lições a partir do modelo espanhol

O presente artigo tem por objetivo analisar o conflito ente o direito de acesso à informação pública e o direito à proteção de dados pessoais. O primeiro estabelece que toda informação mantida por órgãos públicos é, em regra, acessível, sendo o sigilo uma exceção. O segundo, por outro lado, determina que as informações relativas a pessoas identificadas ou identificáveis devem ser protegidas e seu tratamento e transmissão a terceiros somente se permite com o consentimento do seu titular ou em situações especiais legalmente previstas. Uma vez que não existe uma hierarquia entre direitos fundamentais, diante de um pedido de informação que contenha dados pessoais, a autoridade encarregada de decidi-lo deve avaliar, à luz das circunstâncias do caso concreto, qual dos direitos deve merecer a prevalência. De um modo geral, a técnica jurídica empregada nessa avaliação chama-se ponderação de direitos e consiste em um teste de dano e interesse público. Trata-se de sopesar o interesse público na transparência contra o interesse na proteção da privacidade e da autodeterminação informativa dos titulares dos dados. O artigo discorre sobre o conteúdo jurídico dos direitos em conflito e os critérios normalmente utilizados para otimizá-los, de forma que nenhum deles seja sacrificado além da medida estritamente necessária para a proteção do outro. Nesse sentido, a experiência do sistema jurídico espanhol revela-se particularmente instrutiva, ao definir critérios de ponderação entre direito de acesso e proteção de dados já na própria legislação, e ao estabelecer uma obrigação de coordenação entre as instituições encarregadas do controle, da promoção e da defesa de ambos os direitos. O artigo é resultado de uma pesquisa de pós-doutorado realizado junto à Universidade de Valência, apoiada pela Controladoria-Geral da União por meio de sua política de capacitação de servidores.

SISTEM PELAYANAN BADAN AMIL ZAKAT NASIONAL (BAZNAS) KOTA SAMARINDA

Baznas as a trusted amil zakat body because it is centralized and regulated by the government of the Republic of Indonesia and has a legal basis, namely Law No. 23 of 2011 and has standardization and professionalism. This has triggered Baznas to continue to implement a good prime service system, especially in managing and distributing zakat. This is implemented through a zakat service program that seeks to ensure that zakat can be collected from benefactors and muzzaki in a professional and prime manner. This is what muzzaki demands besides good service as well as professional governance. This type of research uses a qualitative approach. The subject of this research is the National Zakat Agency. Meanwhile, the object of research is the service system. Sources of data obtained by researchers are primary data in the form of interviews, observation and documentation and secondary data through library sources. The results of the research obtained are that the Samarinda City Baznas service system has a series of strategies and processes in zakat management starting from the process of zakat, infaq and sadaqah services, the collection and collection process, distribution programs, and improvement of human resources. The service system of Baznas Kota Samarinda is in accordance with the indicators of excellent service quality, namely transparency, accountability, conditionality, participation, equality of rights, and balance of rights and obligations

Balancing Rights and Interests: Reconstructing the Asymmetry Thesis

Abstract Dworkin, Schauer and others have argued that the last step of the proportionality test, ie balancing, is subject to a significant asymmetry. While we could balance interests against each other, we could not do so with rights, lest we destroy the unique normative status of rights. If this asymmetry exists, the applicability of balancing would be considerably limited. I analyse the asymmetry thesis and discuss its merits and weaknesses. I then demonstrate how we can accommodate the rationale behind the asymmetry thesis within the principles theory’s account of balancing. My article confirms that proportionality adjudication includes the balancing of rights and interests.