Foreign Jurisprudence Research Articles

Drawing the Line Between a Trade Secret and the Skill of an Employee

Chapter 30, Section 5 of the Finnish Criminal Code, prohibits, inter alia, an employee from unlawfully using or disclosing a trade secret to another person during the course of employment. The prohibition remains also in force for two years after the employment has ended. However, the use of one's professional skill is excluded from the prohibition. This article addresses the ambiguous distinction between a skill and a trade secret. Following a legislative change concerning non-compete agreements, the significance of the protection of trade secrets under criminal law has increased and the ambiguity identified in case law has become even more important to resolve. The Supreme Court of Finland has not issued a precedent concerning the matter. The article analyses Court of Appeal rulings with legal dogmatics in order to reduce the ambiguity surrounding the topic. Forty-three rulings from various Courts of Appeal have been reviewed as groundwork for the article. In addition, the aim is to use legal comparison to examine foreign jurisprudence surrounding the topic. The article critically examines a so-called primary rule of interpretation, according to which information exported in stored form is in principle a trade secret. This premise is outdated and problematic and should not be used as the core premise of the evaluation. Instead, the evaluation should focus on an objective analysis of the information itself. The primary starting point in drawing the line between a trade secret and skill should be the employee's experience and ability to independently produce the information claimed to be a trade secret. It would also be reasonable to make the confidentiality criterion for trade secrets stricter by requiring employers to place more emphasis on the confidentiality of the information.

A Study Beyond the See-Saw of Relevant and Global Turnover: Finding a Mechanism for Adequate Penalty

The Competition Act, 2002 (the Act) is the governing legislation to enforce compliance against antitrust practices in the Indian market using multiple tools, the primary being the imposition of penalties. Penalties have the effect of punishing offenders and deterring others. Under the current legislation, one of the crucial aspects while computing the amount of penalty is determining the “turnover” of the undertaking, as it is used as a proxy to determine the base fine. There exist other proxies, but “turnover” is the most accepted globally. The act of imposing a penalty is also accompanied by ensuring a balance i.e., the fine should be adequate to deter and should not be excessive to break the undertaking. Hence, the imposition of a penalty is not a mere mathematical exercise but a judicious one. With this backdrop, focusing on the Indian Competition Law, the authors in this paper will comprehensively analyze the concept of “turnover” along with an evolutionary analysis of its different shades i.e., relevant, and global turnover, and how they have failed to help in fulfilling the core objectives of the penalty regime. In the latter part of the paper, the authors provide an alternative perspective based on foreign jurisprudence to argue that “turnover” is not the only proxy available and demonstrate the best practices from around the world. Lastly, having understood the strengths and weaknesses of relevant and global turnover and gained an international perspective, the authors will be suggesting a flexible approach in the context that Indian antitrust authorities will have multiple tools/proxies at their disposal for tackling every situation with the best possible approach, but this flexibility will be exercised within a particular framework/guideline. This holistic approach is essential, as considering just relevant or global turnover would eventually defeat the very purpose of imposing penalties.

Linguistic aspects of law: problems and prospects

The article is devoted to the theoretical analysis of the scientific work on the problems of linguistic features of the legal language arising at the intersection of language and law. The current problems arising from the above interaction in the state, socio-legal, professional and private spheres have been described, the issues of debate have been outlined and the need for a comprehensive approach to their further study has been substantiated. The purpose of the article is to summarise the scientific investigations carried out in the “language and law” coordinate system and to identify specific linguistic problems related to the legal language and the ways of their solution. Nowadays, modern legal linguistics has faced an acute issue of developing a special methodology which should take into account both natural language, legal linguistic and legal aspects. The article uses the method of analysis of theoretical sources relevant to the research topic, which involves the collection and extraction of scientific information belonging to the group of empirical methods of scientific knowledge, as well as processing and analysis of the data obtained, which belongs to the methods of theoretical knowledge. On the basis of a systematic analysis, the linguistic and legal research on the problem has been reviewed; the main vectors of domestic and foreign jurisprudence development with a projection on the linguistics of law have been identified; the issues of streamlining legal terminology, searching for interlingual equivalents and creating dictionaries of legal terms have been considered; the problems of combining theoretical and applied methods for qualitative linguistic examination of legal texts have been characterised; the positive and negative consequences of semantic and textual linguistic examinations of legal texts have been studied. The article discusses the debatable approaches to semantic and textual examination of legal texts, its positive and negative consequences, and substantiates the need to expand the subject area in order to create a single modern research space in the coordinate system “language and law”.

Critical Review about Parricide Crimes of Korean Criminal Law

Purpose: In recent years, the number of infanticide cases has been steady at around 30 per year and the number of toddler murders at around 10 per year, which are generally punishable as ordinary murder. Also Crimes against immediate family members are subject to aggravated penalties. A person(descendant) who kills a member of his or her own or his or her spouse's immediate family is guilty of subsistence murder, which is punishable by death, life imprisonment, or imprisonment for seven years or more. This is a more severe offense than ordinary murder, which is punishable by death, life imprisonment, or imprisonment for five years or more. Most survival-related violent crimes, such as injury, assault, abandonment, abuse, arrest, confinement, and intimidation, have aggravated penalties. However, under the current law, there is no provision for aggravated punishment for violent crimes against direct survivors. There is an aggravated punishment for the murder of a direct survivor by a direct descendant, but there is no aggravated punishment for the murder of a direct descendant by a direct descendant. The Korean Constitution stipulates that “no one shall be discriminated against on the basis of social status”, which may violate the Equal Rights Clause of Article 11 of the Constitution. In other words, it is unconstitutional because it may constitute “discrimination based on birth”. Therefore, we would like to critically examine whether the Korean criminal law should continue to provide for the offense of feticide.
 Method: The aggravated punishment of capital murder is one of the most controversial issues in society. In this critical review of the aggravated murder penalty, we will first look at the Constitutional Court's decision on the aggravated murder penalty. Second, we will look at the arguments in favor of and against the aggravated penalty of capital murder. Third, we will examine the current state of affairs through a comparative legal review of foreign jurisprudence on the aggravated punishment of capital murder. Fourth, the legal, moral, and religious perspectives on the aggravated punishment of capital murder will be discussed. Fifth, based on the above discussion, we will provide a direction on whether to abolish the aggravated penalty of capital murder.
 Results: It is recommended that the aggravated punishment for survival murder be abolished as it violates the right to equality under the Korean Constitution. Even if it is abolished, the purpose of the punishment can still be realized through judicial modification.
 Conclusion: In light of the meaning and legislative purpose of the provision that aggravates the crime of intentional homicide, it cannot be said that the legislative act of selecting a comparative standard, i.e., that intentional homicide is more severely punished than ordinary homicide in the Korean Penal Code, is unconstitutional. However, while the criminal laws have the same criminal offense of killing a person, there is a difference in the 'presence or absence of paternity'. The abolition of capital murder is consistent with the principle of proportionality. It would be contrary to the principle of proportionality to impose severe restrictions based on prosecutorial convenience. For these reasons, it would be a violation of the constitutional principle of equality, and even if it is not unconstitutional, it is difficult to see that it reflects constitutional values such as the principle of equality.

СУЧАСНА ЗАРУБІЖНА КОНСТИТУЦІОНАЛІСТИКА: ІНСТИТУТ ПОРІВНЯЛЬНОГО ПУБЛІЧНОГО ПРАВА ТА МІЖНАРОДНОГО ПРАВА ІМЕНІ МАКСА ПЛАНКА (MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIK LAW AND INTERNATIONAL LAW)

The European vector of modern Ukrainian politics involves a broad and thorough acquaintance with the latest achievements of European and world legal thought. Domestic jurisprudence, which has been developing for many years in line with the orthodox Marxist methodology, overcomes not only ideological isolation, but also produces a new research culture based on the study and understanding of modern trends in foreign jurisprudence. It is necessary to emphasize that this process is only unfolding and is not always implemented in specific studies, in particular, dissertation studies, where the use of works by foreign authors on the studied issues is often absent, and, therefore, the latest methodological approaches and theoretical and doctrinal developments of the world's leading experts are not taken into account. As before, little information is published in domestic legal periodicals about foreign research centers and schools in various fields of law, activities of foreign legal scholars, academic publishing houses and authoritative periodicals. All this fully applies to our science of constitutional law, which encourages us to more actively cover the study of constitutional law in foreign countries, publishing activity and activities of scientific centers related to the problems of constitutional law. One of the internationally recognized centers of modern constitutional studies is the Max Planck Institute of Comparative Public Law and International Law (Heidelberg, Germany). His research in many respects sets the tone and determines the direction of modern constitutional and legal investigations. The article provides a detailed description of the work of the Institute, which is built on the principles of theoretical and methodological pluralism, individual projects are specifically directed to the use of different methodological approaches. It is noted that the research is conducted in two forms: 1) doctrinal and theoretical analysis - problem-oriented fundamental research that seeks to reveal the structures, development and regularities of constitutional and international law; 2) systematic analysis and comparison of legal norms in order to solve current legal problems or carry out reforms. The relatively low level of abstraction of such studies is explained by the need to provide specific recommendations to officials or practicing lawyers. The institute strives for broad relations with the public. It is noted that the Institute occupies a leading position in world constitutionalism in terms of the volume of research conducted, the wide coverage of topics and the depth of theoretical analysis. His achievements must be taken into account by the domestic science of constitutional law.

Conceptual approaches to the application of principle of proportionality

Upon the Article 8 of the Constitution of Ukraine the principle of the rule of law is recognized and eff ective in Ukraine. It is generally accepted that the principle of proportionality is a key component (sub-principle) of the rule of law along with the principle of legal certainty, principle of separation of powers, equality before the law, judicial independence. The principle of proportionality is considered to be one of the most transparent and eff ective mechanisms for the protection of human rights nowadays. Even though the principle of proportionality is a well-known principle both for the national and foreign jurisprudence, only a few foreign articles are devoted to the conceptions of application of the principle of proportionality while such studies are absent in Ukraine at all. Therefore, in our opinion, there is a need to analyze modern conceptions of application of principle of proportionality in order to start the scientific discussion in Ukraine because approaches to its application aff ect the results of the application of the latter. There are two conceptions of principle of proportionality application: optimizing conception and state-limiting conception. These two conceptions can be distinguished from one another by the extent of juridical activism and extent of right protection based on its content. Proceeding from examination of two main conceptions of principle of proportionality application: optimizing and state-limiting conceptions, the following features of these conceptions can be highlighted. As for the optimizing conception, assimilation (equating) of right and public interest, balancing between the right and public interest, equal protection of both rights and public interest, the rule of law shall be achieved through the balancing, not through the limiting the state. On the other hand, when it comes to the state-limiting conception – there is a clear distinction between the rights and public interest, absolute primacy of rights over any public interest, wide discretion of the judiciary, the rule of law shall be achieved through the protection of human rights. Key words: Rule of law, principle of proportionality, conceptions, limitation of government, human rights.

CONCEPTUAL APPROACHES TO UNDERSTANDING CIVIL SOCIETY IN MODERN LAW

Civil society is currently the guarantor of the sustainable development of the rule of law and the source of positive transformations in various spheres of society. The growing interest in the category of "civil society" in modern jurisprudence has actualized the task of building a holistic concept of civil society. The article discusses the main conceptual approaches to understanding civil society in modern jurisprudence and determining its relationship with the state. An analysis is made of the characteristics identified by Russian and foreign researchers as the hallmarks of civil society. The models of interaction between the state and civil society, distinguished in domestic and foreign jurisprudence, are considered. The forms of interaction between the state and civil society are considered, their classification is carried out. Based on the results of the study, a conclusion was formulated on the expediency of using the concept of civil society organizations as the basic concept of civil society in modern legal science.

The "Limited" Assistance of Foreign Jurisprudence: Lessons from India and the United States on Sexuality and Governance

The most recent Singapore Supreme Court decision of Ong Ming Johnson v Public Prosecutor [2020] SGHC 63 follows a slew of unsuccessful constitutional challenges to Singapore’s anti-sodomy legislation, s377A of the Penal Code. Despite growing domestic activism, there is little hope that the provision will be repealed by a conservative Parliament. The onus is therefore on the Singaporean judiciary to abolish this archaic feature of Singapore’s colonial past, and this Note proposes new strategies for challenging s377A. The failure of past s377A challenges does not foreclose the possibility of future success, and Singaporeans may take cues from the successes of United States and Indian litigants in challenging their domestic anti-sodomy laws. This Note adopts a cross-jurisdictional analysis of anti-sodomy challenges and argues for enhanced constitutional protection of the LGBTQ+ community under Art. 9 (right to life and liberty) and Art. 12 (equal protection) of the Singaporean Constitution.
 

References to jurisprudence of foreign constitutional courts in judgments and decisions of the Constitutional Tribunal of the Republic of Poland

In its jurisprudence, the Constitutional Tribunal of the Republic of Poland often uses the comparative law method. For it, comparative material is not only the normative acts in force in other countries, but also foreign jurisprudence. This article presents the results of a quantitative and qualitative study of the judgments of the Polish Constitutional Tribunal in terms of the presence of references to the judgments of other constitutional courts. Reference by the Tribunal to foreign constitutional jurisprudence is a relatively rare practice, but not an occasional one. It was intensified after Poland’s accession to the European Union. Although the main point of reference for the Tribunal in its comparative analysis is still the jurisprudence of the German Federal Constitutional Court and constitutional courts of other Western countries, it also increasingly frequently reaches to the judgments of the constitutional courts of Central European and Baltic countries. The subject issue is part of the progressive process of the so-called transnational judicial discourse or judicial globalization. The reluctance of the Tribunal to reach in its rulings to judgments of foreign constitutional courts, which has been observed since 2017, may be the beginning of its assumption of an exceptionalistic attitude similar to the U.S. Supreme Court.

Protection of virtual gaming property: national and foreign experience

Today, we live in a world surrounded by virtual reality. Virtual reality is commonly used in advertising, video games, cinema, entertainment, education, training, simulations, architecture, engineering and the defense industry. Applications of virtual reality in the entertainment industry can give rise to several legal questions that need to be addressed when determining the relationship between stakeholders, especially when the transaction volume in the virtual world and virtual market trades are considered. In a digital world, digital contents can be illegally copied, communicated to the public or otherwise distributed with several clicks of a mouse within seconds from anywhere in the world. Fighting piracy and infringement of rights, including copyright, on the Internet becomes more and more important for right holders each day. Enforcement of rights on the internet, where huge amount of data are exchanged across the world every second, is another challenging subject. This is also the case for virtual environments. The scientific article analyzed domestic and foreign jurisprudence in the field of protection of virtual gaming property, conducted research on barriers to protection of virtual property, and proposed a way to overcome the problem by developing a law on virtual service providers, which would regulate relations on registration of service providers. virtual facilities, monitoring their activities, determining the rights and obligations of persons using such facilities, the risks associated with the use of virtual asset services and resolving disputes arising from contracts and agreements between the virtual asset service provider and his customers. In addition, the authors propose to create blockchain games as decentralized applications that will not only make the user a full owner of virtual gaming property, but also eliminate intermediaries in the relationship between user and game developer and in turn significantly reduce server maintenance costs.

Challenges and Prospects of Litigating Sexual and Reproductive Health and Rights of Women in Nigeria: Lessons from Comparative Foreign Jurisprudence

Available statistics revealed vulnerable and fragile conditions for women in Africa, including Nigeria. This is due to the persistent violation of their sexual and reproductive health and rights (SRHR), maternal heath rights, choice of spouse and right to determine whether or not to have children and the numbers of children to have, access to contraceptives, etc. These rights are violated due to cultural norms, medical negligence, lack of access to social and economic resources, etc. If this condition is left to fester, Nigerian women may never attain their full potential and capabilities to develop because of the links that exist between sexual and reproductive health and rights and equality, empowerment, economic growth and development. There is, therefore, a need to strengthen this fragile condition through the effective implementation and enforcement of international, regional and national laws relating to SRHR. Rights litigation strategy is an acknowledged tool of empowerment and transformation in this regard. Consequently, this article examines SRHR of women in Nigeria, highlighting the challenges with litigating cases involving SRHR. Also, the article considers the prospects for litigation through a comparative study of selected jurisdictions in order to explore how they have engaged with similar situations and challenges of litigating SRHR and to identify lessons for Nigerian courts.

The legal nature of antitrust compliance as a mechanism for respect of national and in- ternational legal regulation of protection of economic competition

The article considers the legal nature of antitrust compliance as a mechanism of respect for national and international legal regulation of protection of economic and commercial competition. The author researched the influence of antitrust compliance on the quality of competition advocacy, on the prevention of violations of legislative norms in the field of protection of economic competition and on reducing the overall workload on the state antitrust authorities. The article analyzes the legal concept of antitrust compliance in narrow and broad interpretations. It is proposed to examine the legal nature of antitrust compliance through a functional approach, which includes the vectors of antitrust compliance that constitute its essence, as well as through the normative provisions of antitrust compliance at the legislative level.The article describes in detail such vectors of antitrust compliance as assessment of market specifics, assessment of own market share, assessment of risk zones in connection with information exchange, assessment of the level of employees’ awareness of compliance with corporate antitrust compliance rules, assessment of potentially high-risk forms of legal activities (in particular the dominant position, the risk of unfair competition, horizontal and vertical agreements, mergers and acquisitions agreements, not providing information to the state antitrust authorities. The article describes in detail such vectors of antitrust compliance as assessment of market specifics, assessment of own market share, assessment of risk zones in connection with information exchange, assessment of the level of employees’ awareness of compliance with corporate antitrust compliance rules, assessment of potentially high-risk forms of legal activities (in particular the dominant position, the risk of unfair competition, horizontal and vertical agreements, mergers and acquisitions agreements, not providing information to the state antitrust authorities).Special attention is paid to the influence of antitrust compliance mechanism in M&A transactions. The author links the provision on antitrust compliance at the legislative level with the overall effectiveness of legal regulation of protection of economic competition.The article extensively examines the forms of legislative provisions on antitrust compliance, in particular in the form of recommendations, standards and norms of laws. The author analyzes the experience of foreign state antitrust authorities regarding the normative provisions of the antitrust compliance mechanism. The article reviews approaches of the European Commission, the Competition Bureau of Canada, the French Competition Authority, the UK Office of Fair Trading, the Antitrust Division of the U.S. Department of Justice and others. In addition, the author highlights ways to encourage the implementation of antitrust compliance in companies by recognizing the existence of antitrust compliance programs as a mitigating circumstance in the case of punishment, including by reducing the relevant sanctions. The author focuses on the relevant foreign jurisprudence. The legislative provisions of separate vectors of antitrust compliance in the Ukrainian legislation were found, in particular, a review of the leniency program was made. The implementation of a comprehensive regulatory and legal establishment of the mechanism of antitrust compliance in Ukraine is proposed.

A Global Community of Courts? Modelling the Use of Persuasive Authority as a Complex Network

There is a growing discussion in the legal literature of an emerging global community of courts composed of a network of increasing judicial dialogue across national borders. We investigate the use of foreign persuasive authority in common law countries by analyzing the network of citations to case law in a corpus of over 1.5 million judgments given by the senior courts of twenty-six common law countries. Our corpus of judgments is derived from data available in the vLex Justis database. In this paper we aim to quantify the flow of jurisprudence across the countries in our corpus and to explore the factors that may influence a judge’s selection of foreign jurisprudence. Utilization of foreign case law varies across the countries in our data, with the courts of some countries presenting higher engagement with foreign jurisprudence than others. Our analysis shows that there has been an upward trend in the use of foreign case law over time, with a marked increase in citations across national borders from the 1990s onward, potentially indicating that increased digital access to foreign judgments has served to facilitate and promote comparative analysis. Not only has the use of foreign case law generally increased over time, the factors that may influence the selection of case law have also evolved, with judges gradually casting their research beyond the most influential and well-known foreign authorities. Notwithstanding that judgments emanating from the United Kingdom (chiefly from the courts of England and Wales) constitute the most frequently consulted body of jurisprudence, we find evidence that domestic courts favor citing the case law of countries that are geographically proximal.

Direito de autor: da (im)possibilidade de impedir que criminosos lucrem com obras literárias sobre seus crimes

Intellectual creation is widely protected by national and international diplomas. This paper questions the (im)possibility of preventing criminals from profiting from the publicity of their crimes. This discussion involves collisions of rights. The research’s methodological focus is on the analysis of national and international diplomas available on the subject. Solid arguments are sought in order to reconcile the public interest and the freedom of expression of the author with personality and patrimonial rights over his or her work. For this, the present study uses the dialectic method and the monographic procedure, which consists of the analysis of the norms, of the doctrine related to the topic, as well as national and foreign jurisprudence. The conclusion is that restricting the author’s patrimonial right does not promote convincing public interest, according to the Brazilian legal system.

THE RELIABILITY OF TRACE DNA OR LOW COPY NUMBER (LCN) DNA EVIDENCE IN COURT PROCEEDINGS

Although forensic DNA testing is well established, some experts disagree with the interpretation and statistical significance of test results obtained from very small samples. This article discusses the problems regarding the use of the low copy number (LCN) technique as well as the value that can be derived from such an analysis. It focuses on the problematic results that can arise from using very small samples for forensic DNA identification. Since this kind of analysis is based on low amounts of DNA samples (between 100 picograms and 200 picograms in South Africa) that are amplified by using more than the normal 28 cycles to create larger samples for analysis, the reliability of the analysis has been questioned. The amplification process, known as the Polymerase Chain Reaction (PCR), is associated with risks such as stochastic effects and contamination that could make interpretation of the results difficult for the defence. While standard operating laboratory protocols could prevent contamination and although the electropherograms could aid the detection of contamination, it is highly problematic for the defence counsel to ascertain whether these procedures were indeed strictly followed. Drawing on foreign jurisprudence, this article considers the risks and key controversies and explains what lawyers need to know, in order to be able to recognise controversial results that could stem from using the LCN DNA technique for forensic DNA identification. The conclusions thus drawn may be of particular relevance to the South African context, as no reported case law exists in which the issues relating to the use of LCN DNA have yet come to the fore.

Consent of Patent Application on an Invention Jointly Owned by a Private Company and a Public Institute: From Joint Owner Consent Principle to Joint Owner Individual Principle

Section 44 of the Korea Patent Act prescribes that if the right to obtain a patent is jointly owned, a patent application is only possible upon consent of all joint owners. This paper coins this jurisprudence as “joint owner consent principle”. Such countries which apply this principle are exemplified as Germany, Japan, China as well as Korea. This paper aims to suggest a method to solve a deadlock situation where the right to obtain a patent is jointly owned by both a private company and a public institute and the private company cannot file a patent application due to objection of the public institute. According to analysis of foreign jurisprudence, in the U.S.A., Canada, Australia, India, etc., each joint owner can file a patent application notwithstanding other joint owners’ objection. This paper coins this jurisprudence as “joint owner individual principle”. This paper suggests the following reasons why the joint owner individual principle is more reasonable than the joint owner consent principle. Firstly, if all joint owners do not consent, maintenance of trade secret is almost impossible. Secondly, if a joint owner files a patent application without others’ consent, the application may result in the same situation where all joint owner are named as applicants. Thirdly, filing of a patent application can be interpreted as a maintaining action. Fourthly, section 30 of the Korea Patent Act would better be utilized under the joint owner individual principle. Fifthly, because section 99 demands consents of all joint owners for share assignment, section 44 could be utilized to force involuntary consents. This paper proclaims that the “joint owner consent principle” be changed to the “joint owner individual principle” and to realize the proclaim a new subsection be inserted into section 44, which reads as: “if one or more of joint owners object to the patent application or is not reached after due diligent, (an)other joint owner(s) can file a patent application.” Furthermore, it had better clarify that each applicant can request patent denial review trial without consent of other applicants in section 132. Considering such a situation where above proposals may not be passed in the National Assembly or where before legislation in the National Assembly, the deadlock problem could be solved by an agreement (contract) by the private company and the public institute. If the two become joint owner of a patent, both may face inherent risk of the joint ownership. To minimize such a risk, a kind of model agreement could be suggested. The model agreement may on the one hand allow the private company to freely utilize the patented invention and to maximize profits and on the other hand allow the public institute to receive allocation of the profits achieved by the private company. The amount of allocated remuneration could be calculated by a corresponding method to calculate that of employee invention remuneration.

Digital Rights – New Horizons or a Legal Impasse

Introduction. 2019 in the domestic legal space is positioned as a period of global legal reform, as a breakthrough in the regulatory regulation of promising public relations. The instrument of regulation of the functioning of the “digital society” is declared to be the institution of “digital law” introduced into legal circulation (doctrinal, law enforcement...). Is this reform really a legal revolution (as it is presented in scientific periodicals) or a “cosmetic repair” of the building of domestic private law, which is in disrepair? Theoretical Basis. Methods. The study conducted by the authors is based on domestic doctrinal sources that reveal the content and specifics of regulatory regulation of digital assets turnover, as well as on the theoretical developments of foreign lawyers and economists devoted to the nuances of legal regulation of the issue and turnover of cryptocurrency. In this article the authors on the basis of systematic, logical and legal analysis of national normative material, but also on the basis of the comparative study the best foreign experience of legal regulation of the turnover of digital assets reviewed current reform of the national civil and investment law occurring as a result of adoption of Federal law No. 34-FZ of March 18, 2019 and No. 259-FZ of August 2, 2019, which entered into legal turnover of the new concept of “digital law”. First of all, doctrinal sources – the works of foreign lawyers specializing in the study of problems of regulation of cryptocurrency turnover-are subjected to comparative analysis. Results. The scientific analysis Carried out by the authors allowed to reveal serious gaps and conflicts in the Russian law, and also to define perspective directions of development of legal regulation of turnover of digital assets. The reform of the domestic civil and investment law, which consists in the introduction of a new Institute of “digital rights” into legal circulation, has not generally achieved the declared goals and scientific expectations. At its core, the analyzed reform, declared as a breakthrough of domestic jurisprudence, the consolidation of a new type of civil law objects-digital rights, and the construction on their basis of revolutionary principles of investment in the Russian economy, is only a unification of traditional legal material; moreover, the unification is unsuccessful, conflicting with a large volume of regulations both in the field of investment law and in the field of information law. Discussion and Conclusion. This article demonstrates the analysis of the new legal concept of “digital rights” and their turnover in the context of their private legal regulation and public legal protection, determining their place and role in the system of domestic law in General; these issues have not yet been the subject of scientific analysis in domestic jurisprudence. The method of solving the identified problems proposed by the authors-basing the methodology of legal regulation of digital assets turnover on the principle of anonymity of one of the participants of the regulated relationship, by analogy with the electoral law (and refusal of attempts of total control over the specified activities of these subjects), is new for both domestic and foreign jurisprudence. The main attraction for users of information and telecommunication databases, is based on the phenomenon of blockchain (in addition to guarantee absolute consistency of building structures) is the ability to ensure anonymity of certain subjects of these relations; this is an objective reality, the attempt of the legislator to ban or ignore this trend is doomed to ineffectiveness; the state should take these “rules of the game” and build their policies in this segment of public relations with them.

COVID-19 and the inclusion of learners with disabilities in basic education in South Africa: A critical analysis

This article examines the extent to which basic education, which is compulsory under international law, was inclusive of learners with disabilities during the COVID-19 pandemic. To this end, it examines measures taken by the government to ensure the continuity of basic education and the extent to which these measures are inclusive of learners with disabilities. It argues that moving education to online platforms, and conducting classes via radio and television are not accompanied by related reasonable accommodation measures to ensure the inclusion of leaners with disabilities. Among others, study material and numerous resources, online platforms and media are not in accessible formats, and learners with disabilities do not have access to data or internet broadband. In addition, the parents of these learners with disabilities are not trained to assist their children to study from home. The exclusion from school of learners with special needs is also characterised by a limited number of special schools in the country. In making its case, the article relies on South African and foreign jurisprudence on equality and inclusive education to inform the analysis. Ultimately the article finds that learners with disabilities are not included in the education system in the time of COVID-19. It explores general lessons learned during the pandemic which could be considered as an opportunity to re-think how emergency education planning can be inclusive of children or learners with disabilities in the future. While the discussion focuses on South Africa, lessons learned apply across Africa where persons with disabilities generally are marginalised.

Politika pravosudnog sistema i sistema socijalne zaštite prema pitanju poslovne sposobnosti - prikaz istraživanja na teritoriji grada Beograda

Contractual capacity is the starting point for exercising most human rights. It entails the capacity to sign contracts and enter into the legal transactions, and it is a gateway to exercising a range of labour, voting, family, property, succession (etc.) rights envisaged by the law. The full deprivation of contractual capacity leads to the deprivation of most other capacities. Thus, a person is de iure and de facto excluded from societal life. The mechanism for deprivation of contractual capacity exists in both domestic and foreign jurisprudence, as a way of protecting individual rights. The deprivation of contractual capacity in adults is applicable when the competent authority determines one's mental or intellectual impairment. In the past, the prevailing approach to establishing such disability was the medical approach, which is largely the same today, while the social model is seldom applied. The issue of protection of the right to contractual capacity has seldom been comprehensively analyzed, either from the standpoint of social care services or from the standpoint of jurisprudence. Yet, they are both equally relevant in the process of assessing contractual capacity. This paper presents the results of research conducted in social care centers and courts in the territory of the City of Belgrade (Serbia). The research was aimed at establishing whether the status and position of social care service users has improved after introducing the legal mechanism authorizing the courts to assess (within a specific time limit) if there are reasons for continuing the imposed measure of deprivation of contractual capacity, as well as to analyze the major reasons for initiating the legal action for reassessment of contractual capacity.

ПРАВОВАЯ ЛИНГВИСТИКА В КОНТЕКСТЕ ОБУЧЕНИЯ ЮРИСТОВ ПРОФЕССИОНАЛЬНОМУ АНГЛИЙСКОМУ ЯЗЫКУ

The article examines linguistic tendencies and modern approaches to teaching future lawyers professional English intended to overcome cultural barriers in professional communication and to raise the level of professional foreign language competence of law higher school graduates. The paper provides a list of recently available foreign recourses relevant when teaching juridical English. Two problems are tackled: the tendency to use Plain English instead of legalese in foreign jurisprudence and the use of the learner-centred approach in foreign language teaching.