Liberty Rights Research Articles

Governments' fiscal stress and firm decentralization

We examine whether and how fiscal stress on local governments affects the decentralization of state-owned enterprises (SOEs). By employing a fiscal shock entailing an average revenue decline of 13.5% across local governments in China, we undertake difference-in-differences design to discern the effect of fiscal pressures on the decentralization of SOEs. Our findings reveal that fiscal stresses of local governments curb SOEs' decentralization. In the context of evaluating the delicate trade-off between control costs and claim rights, against the intrinsic value of localized information, local governments, particularly during challenging fiscal periods, tend to exhibit a tendency towards centralizing SOEs. Furthermore, local governments are more likely to centralize SOEs with greater tax contribution, higher productivity, and better performance in hard fiscal times, while the effects of fiscal stress on the inhibition of SOEs' decentralization are weakened by greater geographical distance to oversight government and weak government intervention.

책임보험의 중복과 공동불법행위의 구상권

As indicated in the ruling at issue, the contribution right arising from the underlying torts and the right of contribution arising out of overlapping insurance coverage coexist and can be exercised simultaneously, in competition, or successively. However, once one contribution right is satisfied, the other is proportionately diminished. The decision at issue, clarifying these legal principles and providing a specific method for calculating the amount of subrogation claims, is significant as a case of first impression on these issues.
 This paper’s main arguments can be summarized as follows: 1. In liability insurance, it is crucial to consider concepts such as the insurable interests, the sum insured, and the amount of insurance coverage. Especially when unlimited liability insurance is one of the overlapping insurances, or when both are unlimited in liability, determining the amount to be paid respectively by the insurers, which serves as the basis for apportioning compensation liability among insurers, becomes unfeasible.
 2. It is questionable whether the direct contribution rights among insurers are acquired from the subrogation of the right of insured or from the direct claim rights of the victim. The author maintains that this contribution right among the insurers arises from the internal relations among multiple obligors liable to the victim. This right therefore is sui generis.
 3. The exercise of contribution rights among insurers involves separating the portion of liability attributable to the fault of the other party, and claiming the share of the overlapping insurance portion remaining after the first contribution. However, the result of the calculation remains the same, whether the proportion of overlapping insurance is applied first to the entire compensation liability or not.
 4. The right of contribution concerning the torts and the right concerning overlapping insurances are independent and separate causes of action, however, they should be treated and managed in litigation process without any contradiction.

Upholding the Right to Healthy Environment through Judicial Interpretation of the Right to Life

The late twentieth century has experienced an unprecedented increase in legal claims for human rights and the environment. The correlation between the two subjects became apparent following the Stockholm Conference of 1972. The Stockholm Conference laid the foundation for the interconnectedness between protecting the environment and realizing the protected human rights in national and international human rights instruments. This is because it has since become obvious that environmental pollution can infringe on protected rights such as the right to life, the right to peaceful enjoyment of property, and the right to privacy, to mention but a view. Therefore, any attempt to ensure the protection of the environment will invariable and enhances the realization of basic human rights.Consequently, human rights have become a legal weapon in a claim to environmental protection through judicial interpretation and expansion of the existing human rights provisions in national and international human rights instruments. Although various fundamental rights have been interpreted to encompass the protection of the environment, this paper is limited in its scope to the concept of the right to life. Examining the two most important questions has been the purpose of discussion throughout this paper. First is the degree of willingness of the Court to adopt an extensive interpretation of the right to life to protect the environment. The other is whether the courts expand traditional human rights principles. In answering these questions, this paper looks into the courts' approach through case law for proper evaluation of the right to life in protecting the environment. Likewise, the paper adopts a doctrinal legal research method. The doctrinal legal method is issues-based and involves analysis of laws and conceptual clarifications of fundamental issues depending on the objective and purpose of a research work. Therefore, within the objective of this paper, the doctrinal research method is employed in analyzing the right to a healthy environment and the judicial approach to using the right to life in preventing environmental pollution and enhancing a healthy environment.

Co-producing autonomy? Forest monitoring programs, territorial ontologies, and Indigenous politics in Amazonia

Forest monitoring programs have become widespread in Amazon Basin countries. Using GPS artifacts, smartphones, drones, and other technologies, international environmental non-government organizations (IENGOs) propose these programs as tools to control and stop deforestation events—and thus of climate change mitigation. These also seem like ideal initiatives for IENGOs to collaborate with Indigenous organizations, responding to calls to include their knowledge in climate governance. I analyze forest/territorial monitoring programs created by the Coordinator of Indigenous Organizations of the Amazon Basin (COICA) and its member organizations in Ecuador and Peru. Scholarship in Science and Technology Studies (STS) and digital geographies has demonstrated how digital environmental technologies and environmental relations and politics can co-produce and shape one another. It has also referred to the historically exploitative relationships that technoscientific projects have enforced towards Indigenous peoples, and the potential of digital tools for emancipatory goals. I argue that forest monitoring programs and technologies co-produce forms of climate and territorial politics in Amazonia. Through forest monitoring programs, Indigenous leaders and organizations imagine and enact territorial defense, or a politics founded on integral territorial ontologies. That is, they see the programs as tools to strengthen their autonomy, to build the capacities of leaders at all scales of political organization, and to support their claims for territorial rights. For them, technologies can make Indigenous cosmovisions or ancestral knowledges visible. However, these programs can also reinforce a politics (of IENGOs) where territories are spaces with strict boundaries and exclusive rights, and which encourages open-access information, thus potentially threatening Indigenous autonomy. Thus, I discuss the intrinsically contradictory impact of monitoring technologies, as the conceptions of territories as lifeworlds, and the embeddedness of ancestral knowledges in them, further exceed their possibilities. Conclusions highlight the importance of attending to Indigenous territorial defense to understand how (new) technologies and society shape each other, and the many implications of climate change responses to justice issues.

The Unilateral Authority Theory of Punishment

It is frequently argued that wrongdoers forfeit, through their wrongdoing, their previously held claim rights against being punished. But this is a mistake. Wrongdoers do not forfeit their claim rights against being punished when they violate rights. They forfeit their immunity to having their claim rights against being punished removed. The reason for this, I argue, is that when they violate rights, wrongdoers culpably disregard the authority of right-holders to negotiate the conditions under which it is permissible to interact with them. The effect of this, far from undermining the authority of right-holders, is to transfer authority to right-holders to unilaterally impose the ‘conditions of interaction’ on wrongdoers after the violation. The conditions can be imposed for a diverse range of reasons and can take a variety of forms, including punishment. In this essay I explain and defend this new ‘unilateral authority theory’ of punishment.

Pilihan Rasional Perempuan Entrepreneur dalam Gugat Cerai di Kota Batam

Divorce suit is a claim of rights to court filed by a wife to divorce from her husband. The divorce is triggered by several factors, one of which dominates is the problem of conflicting disputes continuously, while the rest of the economic factors. The independence of women in the economy is assumed to be a trigger for divorce decisions. Where this condition is a woman who has higher income than her husband and the woman feel enough to have day-to-day needs. This is the basis for the view of women's economic independence will allow women to choose divorce as a rational action in resolving the marital crisis. This study aims to determine the entrepreneur women in divorce suit where until now women who dominate can sue for divorce. The theory that the researcher uses is the theory of rational choice in which an action has an achievement or goal of the decision taken. This study uses qualitative research. Technique to determine the informant by using purposive sampling. The result of this study findings is awareness in terms of how women entrepreneurs can decide a divorce suit decision. Women also have reasons to divorce, one of which is financial ability, educational ability, the ability to educate children, and the ability to deal with social life.

심리적으로 소진된 초등교사의 동료 및 관리자 대인관계능력 향상을 위한 집단상담 프로그램 개발

Purpose: The purpose of this study was to develop a group counseling program to improve theinterpersonal skills of colleagues and managers of elementary school teachers who were psychologicallyexhausted and to verify its effects.
 Methods: To this end, 350 elementary school teachers nationwide were tested for psychologicalburnout(TBI) and ten out of 75 students who showed intermediate risk (T 65) or higher in the area ≥of crisis over teaching rights were selected as experimental and control groups. The results wereanalyzed with Mixed ANOVA.
 Results: As a result of the analysis, this group counseling program was effective in improving theinterpersonal skills of colleagues and managers of elementary school teachers who were psychologicallyexhausted, and as a result of the content analysis, participants in the experiment responded positivelyto the effectiveness of the program. In addition, among the sub-areas of peer and manager interpersonalskills, there was a significant difference in the areas of first relationship, claim of rights, self-openness,and emotional support, except for the areas of interpersonal conflict.
 Conclusion: It was found that the program developed in this study is effective in improving theinterpersonal skills of colleagues and managers of elementary school teachers who are psychologicallyexhausted.

Grounds and Methods of Acquiring Immovable Property Ownership in the Context of Recent Changes in Civil Legislation

The analysis of subjective civil rights doctrines allows us to conclude that there are several levels in their structure. Some theories initiate the process of acquiring the right, others finalize it. Most concepts (the concept of general and specific prerequisites for the emergence of the right, the concept of a legal fact structure, the concept of juridical composition, the concept of facts-states) are based to some extent on this division. From these positions, the author differentiates between the concepts of «emergence» and «acquisition» of a right, as well as the grounds and methods of acquiring property rights, where the basis is a prerequisite for the emergence of a right, and the method means actions aimed at acquisition. Grounds and methods cannot independently generate rights and obligations.A critical assessment of new grounds and methods of acquiring ownership of real estate from these theoretical standings made it possible to exclude the possibility of recognizing the «right of claim» enshrined in the law as a method of acquiring ownership to a land plot. Attention is drawn to the appearance of a number of categories that the law-maker fails to explain (the relevant real estate, the formation of an immovable thing, etc.), but the content of which has serious legal consequences. An attempt is made to differentiate the concepts of creation and formation of an immovable thing on the basis of the originality and derivation of the acquisition of ownership, where creation is the original method, and formation is a derivative, which entails not only the emergence of ownership of a new object, but also the termination of rights to the existing right. An assumption is made about the possibility of distinguishing the categories of creation and formation depending on its physical and legal element where creation is characterized by the appearance of an object in physical (material) embodiment, and formation means a legal separation (spinning-off0. The author argues that it is not possible to differentiate these categories without adjusting the legislation. The author justifies amendments to the Civil Code of the Russian Federation, as a result of which formation can be considered as a new derivative method of acquiring real estate ownership.

The Tyrannous Father in Opera Seria

"The article examines the role and function of the father figure in the libretti of Pietro Metastasio, focusing on the representations of the tyrannous rather than the benevolent father. The bulk of his oeuvre written for the Viennese court, Metastasio’s libretti took an active role in propagating the reigning and intertwining social–political systems of absolutist monarchy and patriarchy. The tyrannous father figure served to heighten the usual tension of the contradictory duties of public and private lives, highlighting the dilemma of how far the paterfamilias should be obeyed and his mistreatment towards his child be suffered, analyzed here through the example of Artabano in Artaserse, also pointing out the differing relationship dynamic and dramatic treatment of father–son and father–daughter relationships. Through Astiage in Ciro riconosciuto, the article examines the role of the tyrant, the political ""bad father"", and how his figure ultimately serves to reinforce the absolutist system and the claim of the divine right of kings. Keywords: opera seria, Metastasio, absolutism, patriarchy, operatic dramaturgy"

DILEMMAS OF RE-NATIVIZATION OF INDIGENOUS LAW

The author in this study tests the applicability of basic categories of Leon Petrażycki’s (1865–1931) socio-psychological theory of law, pointing at ambiguity of the concept of ‘indigenous law’, ‘natives’ law’ and ‘customary law’. First, however, the right to one’s own law is followed through the history of colonization. It is essential for the plight of the indigenous people that already in 1537 Popes recognized that ‘original inhabitants’ had ‘rights’ and thus ‘legitimate claims’. If, on the one hand, there are ‘rights’ and ‘rightful claims’ then, on the other, there are duties that include not only the negative refraining from appropriation but also the positive duty to protect in exchange for the impairing the indigenous sovereignty. But whenever the nexus iuris is recognized, i.e. the link of correlative rights and duties, there is a law (Petrażycki) and ‘inherent – even if impaired, or as some say, abused – sovereignty of the indigenous people’ (Justice Marshall). The pluralist notion of ‘law’, the distinction between the ‘normative positive’ reference and the ‘normative intuition’ and the distinction between the ‘normative’ and the ‘factual’ should allow one to organize systematically the multiple issues that one encounters when approaching the area of ‘indigenous law’. From discussion of the official nonindigenous indigenous law exemplified by the federal Native American law of the United States the paper moves on to discuss the Navajo case of the official tribal law. It comes out that the native procedures and law are full of religious meaning so the ‘cultural’ sovereignty is much more fundamental and value-loaded than the secular philosophy of human rights incommensurable with the right to one’s own law. This is not considered when borrowing from native law into secular Western law (Greenland’s Criminal Code; mediation procedures in North America). The meaning of cultural sovereignty is the right to develop one’s law so that it fits one’s needs and aims. But the full success story is when the antithesis of the ‘indigenous’ and ‘dominant’ law is settled through the feedback from the former to the latter, like when the law – not only of a country but also on the global level – becomes syncretic and embraces deeper universalization of the human rights.

Revisiting Defence of Claim of Right in Nigerian Criminal Law through Elimuya v. Police

The defence of bonafide claim of right under Nigerian criminal law is an important menu in the consideration of the defences open to a defendant in a criminal trial. In Charge No MAB/43c/2020 Commissioner of Police v. Chief Paul Idima Obi Elimuya the defence came up for consideration before the learned trial Senior Magistrate Grade 1, Edema Doris (Mrs.) sitting at the Magistrates’ Court, Abbi in Delta State, Nigeria. Because of the intricate nature of the defence and the manner in which it was considered in the above mentioned charge, this study is actuated towards revisiting the defence under the Nigerian criminal procedure law and determine whether given the factual circumstances in which the defence arose, the trial court was in the right footing in rejecting the defence as made during the trial proceedings in Elimuya’s case. This study would consider the forgoing issue in relation to the appeal which the defendant later took out against the judgment of the learned trial Magistrate to the High Court of Justice, Kwale Delta State, Nigeria. This study uses the doctrinal method relying on judicial decisions and other relevant statutory instruments in the area of the law under consideration. It uses the locus classicus on the subject area of the law in Nigeria (Nwakire v State) to interrogate both the facts yielded in Elimuya v Police and the judgment delivered by the trial court on 15th October, 2022. As this study is essentially an academic exercise, the aim is to highlight the importance of the defence in criminal procedure law, demonstrating the circumstances under which it is to be raised and upheld and the controversies surrounding its application under Nigerian law. The study finds that the facts in Elimuya v Police were on all fours with the circumstances under which the defence ought to have been upheld and the refusal of the learned trial Magistrate in upholding same led to miscarriage of justice and to the appeal. The study therefore recommends that whenever the question whether the defence of claim of right is applicable during a trial, the trial court and indeed an appellant court should look out for the essential elements of the defence as outlined in this study.

Claiming space: Contested coastal commons in Mumbai

Many of the world’s cities are located on the coast, and coastal ecologies and livelihoods are under increasing pressure from rapid urban transformations and climate change. This necessitates paying attention to how coastal spaces are understood and governed, but the spatial dimensions of urban coastal commons has received comparatively little attention. How are coastal spaces framed, understood, and contested? Drawing on scholarship on socio-spatial relations, the ‘right to the city’, and spatial justice, we explore these questions through tracing the contestations around the coastal commons in Mumbai, particularly focusing on the Coastal Road project and how claims of rights and access by the Koli fishing community unfolded. The case untangles the multi-scalar framings of coastal commons as places that are intimately tied up with Koli identity, versus city planners’ view of coasts as mere ‘conduits’, with the transformation of fluid land-sea commons into legible and controllable territory. We make an argument for the notion of a ‘right to the coast as commons’ as being conducive for a more climate-resilient city that heeds the particular ecological interdependencies and stewardship of coastal communities.

PECULIARITIES OF CONDUCTING FORENSIC ECONOMIC STUDIES ON CONFIRMING THE AMOUNT OF MATERIAL DAMAGE (LOSSES) OF BANKS

The article is devoted to the generalization of methodical approaches and the competence of forensic economists when conducting research on confirming the amount of material damage (losses) of banks. The subject and objects of expert research on confirming the amount of material damage (losses) of banks have been determined. The subject of the study is a system of theoretical, methodical and practical aspects related to the expert study of issues of confirmation of the amount of material damage (losses) caused to banks from non-repayment of loans, determined by the controlling bodies within their competence. The algorithm for determining with the help of economic expertise issues related to causing material losses, as well as issues related to determining the presence and amount of losses in financial and credit relations, based on the generalization of the practice of appointing and conducting economic expertise, which can be applied in modern realities in Ukraine, is substantiated. The proposed main approaches to solving issues related to the assignment of material damage (losses) to banks from non-repayment of loans due to the debtor’s loss of obligation and/or loss of the ability to collect debts and the assignment of material damage (losses) to banks from non-repayment of loans due to the bank’s withdrawal claim rights with a discount.

건설도급계약에 있어서 수급인의 보수청구권에 관한 소고

The nature of construction subcontracting contracts is similar to that of subcontracting agreements, whereby the contractor assumes the obligation to pay compensation to the subcontractor as consideration for the completion of the contracted work. In construction subcontracting contracts, the fulfillment of the subcontractor’s compensation claim rights depends on the determination of “completion of work” established by the Supreme Court. The essential issue in interpreting the concept of “completion of work,” which serves as a fundamental indicator of subcontracting contracts, arises in relation to the fulfillment of the subcontractor’s compensation claim rights. The underlying cause of this issue lies in the explicit provisions of our Civil Code, which stipulate that the subcontractor is solely obligated to complete the work, while the contractor is only required to pay compensation for the completed work. Consequently, disputes arise regarding the point at which the obligation to pay compensation arises for the contractor. Therefore, this study aims to examine the meaning of the subcontractor’s compensation claim rights and the significance of “completion of work” as the essential indicator in subcontracting contracts. To achieve this, we review scholarly opinions on the meaning of the subcontractor’s compensation claim rights and the period of claim fulfillment, and examine the criteria established by domestic Supreme Court rulings, with the objective of identifying issues and proposing alternatives.

Persons Authorized for Court Decision Appeal

The study aims to give equal time to the issue provided by the Civil Procedure Code - the person’s access to one of the legal mechanism - one of the prerequisites- not to review party’s claim without any complaint (appeal, cassation, the private complaints). This, therefore, is linked to the subjects of the determination of the appeal court's decision. The Civil Procedure Code (Code of Civil Procedure, Article 364, Article 391 of the first part, the second part of Article 414) refers to the circle of persons having the right to appeal the court decision. Such persons include the parties and third parties with an independent request. In the court practice, this problem arose concerning such persons who do not belong to the above mentioned list and are: a) persons who may not participate at any capacity in a particular dispute (the contested decision in particular, not this or that dispute in general), however, the decision directly affected their legal rights; b) third parties who claim to be submitted to the Independent, which also are undoubtedly interested in the outcome. This issue resulted to dissension among scientists, as well as the different legal practice. However, in recent years, the legal judicial tried in solving the problem. From the Supreme Court's practice, which is the instance that states the court practice, it turns out that the right of claim in the Court of Appeal and Cassation has persons who are substantially affected by the challenged decision. Nevertheless, the Court of Cassation in its judgments directly and clearly did not reply to the question of whether third parties without any independent request have the private right of appeal. The analysis provides the basis for admission to the practice of reasonable doubt. It states that the above-mentioned persons have the right to appeal against the decisions, whether and to what extent is the contested decision and, in particular, the operative part of these legal interests. Thus, the present study confirmed the relevance of these issues as a scientific and practical arena arising divergence. The task, however, posed the problem of the rate of the first civil procedural law and, on the other hand, the practice originated based on the legal basis of needs that require specific ways. This is aimed at preventing the right of access to undue restrictions and specific legal persons concerned in court to appeal the decision unlawful rejection course.

The Effects of the COVID-19 Pandemic “Crisis” on Unaccompanied Minors Navigating US Removal Proceedings

Unaccompanied minors are among the most vulnerable undocumented immigrants facing removal proceedings in US immigration court. To avoid being sent back to violence and deprivation in their home countries, unaccompanied minors may apply for asylum or deportation relief for abandoned, abused, or neglected children. The COVID-19 pandemic represented a crisis for American society that also had key impacts on immigrants’ lives and their ability to interact with state systems to apply for legal status and claim rights. This paper asks: (1) How did the COVID-19 pandemic affect unaccompanied minors’ social vulnerabilities in the US?; and (2) How did the COVID-19 pandemic impact the US immigration bureaucracy and the work of nonprofit advocates who broker unaccompanied minors’ interactions with these state systems? Findings show that the pandemic exacerbated unaccompanied minors’ social vulnerabilities, with especially adverse effects on indigenous youths, those in legal limbo, unrepresented youths, and those experiencing job loss. The pandemic also disrupted the US immigration bureaucracy and, consequently, the work of advocates who broker immigrants’ interactions with these systems, making it more difficult to interact with traumatized youths to obtain necessary information for their cases, meet strict deadlines, and identify their needs. This case study provides lessons on how states and civil society strategically manage a “crisis” and discusses the implications for immigrants’ rights and vulnerabilities.

Rethinking moral claim rights

Rethinking moral claim rights

Legal recommendations and psychological advice sports administrators can implement in the next pandemic

The COVID-19 pandemic exposed sports administrators’ lack of crisis management preparedness and athletes, coaches, and support staff’s lack of mental preparedness for a pandemic. Sports administrators were in the unenviable position of having to protect the health of their athletes, staff, and the wider population by preventing the spread of the COVID-19 disease with restrictive policies, such as bio-bubbles and quarantines, while at the same time not restricting anyone’s liberty and unalienable rights to pursue happiness. This article informs sports administrators how to balance health instructions from regulatory bodies with measures protecting individual liberty. It provides sports administrator’s legal recommendations they can follow and psychological advice that they can pass on to their athletes, coaches, and support staff. The article also explains to coaches and support staff how to manage, and athletes how to successfully cope with, future bio-bubbles, quarantines, and the next pandemic.

Divergent citizenships: Social urbanism and hip hop collectives in Comuna 13 (Medellin - Colombia)

The bombing attacks against the civilian population promoted by the Colombian State in alliance with paramilitary groups (2001–2002) marked the history of the Comuna 13, a popular territory located on the slopes of Medellin. It has faced processes of structural, political and criminal violence for nearly 50 years. Its stigmatization as a space in conflict has justified military incursions as anti-subversive strategies. More recently, urban interventions based on the “social urbanism” model promoted by the municipal government have sought to pacify the population by means of sophisticated infrastructures. This paper aims to analyze the forces and folds of power present in citizen practices. Based on a scalar methodology that articulates ethnographic work with microhistory, the research reveals the configuration of divergent citizenships in hip hop collectives. The paper shows how they have been shaped by factors such as disputes over public spaces as settings of political life, interpellations to images of legitimate citizens, claims of rights anchored to territorial history, experiences of citizenship linked to body and emotions, citizen experiences connected to collective work, and the defense of universal claims based on the experience of young hoppers in different cities around the world. This research opens questions for legal geography to think about the relationship between citizenship and territoriality.

Influence of farmland confirmation on farmland abandonment in China.

The general view is that land ownership affirmation provides incentives for farmers to internalize external benefits, optimizes farmers' allocation of agricultural production factors, and then reduces farmers' farmland wastage behavior. This study examines the influence of residual control and claim rights in farmland right confirmation on farmers' farmland wastage behavior. Results show that residual control rights guarantee the farmers' exclusive right to use the farmland independently, and residual claim stimulates the farmers to pursue the goal of agricultural production surplus value. However, the residual claim rights are related to the constraint conditions of agricultural production; thus, the farmland right confirmation is situational dependent on farmers' farmland wastage behavior. The surplus value of the farming output of low-income families is low, and the willingness to realize the surplus claim through agricultural reproduction is weak. Residual control reduces the risk of land loss, accelerates the transfer of the labor force, and shows the behavior of farmland wastage. Nonpoor households with high agricultural production surplus value tend to increase the allocation of agrarian production factors to maximize the income, improve the allocation efficiency of agricultural land resources, and reduce farmland wastage behavior. Conclusion: The implementation effect of accurate farmland affirmation is progressive and internally unbalanced. The institutional basis of matching policy should be to deal with the relationship between residual control right and residual claim right.