Foreign Legal Systems Research Articles

The Interplay Between Global Digital Trade and Data Privacy Policy: A Comprehensive Review

In the era of big data, international trade has gone through a digital transformation and developed into a new stage of digital trade. The gradual prosperity of digital trade and the increasing contribution of digital elements to the economy of countries and the international community also bring about problems such as data abuse, surveillance, privacy infringement, and regulatory difficulties. In order to adapt to the development trend of digital trade, countries are paying more attention to cross-border data flow and data privacy protection, in order to maintain national security and the data security of various entities. Therefore, this article analyzes the current situation and trends of digital trade, considers the security issues of data privacy from the perspective of different entities, links key issues such as cross-border data flow, data rights, and privacy rights, explores the current status of relevant domestic and foreign legal and regulatory systems, and conducts comparative analysis. The analysis results show that due to different values, there are significant differences in policies regarding digital trade and privacy protection among countries. The commonality is that none of them have established appropriate legal protection systems for data elements and privacy rights to promote the development of digital trade. Under the trend of technological development, data privacy will also be impacted by new technologies through digital trade. Therefore, in response to the expanding demand for data regulation, all entities should improve their privacy protection and cross-border data flow policies and standards from both internal and international perspectives.

Legal Monitoring of the Modern Penitentiary Process in Russian and Foreign Legal Systems

This article explores human rights mechanisms as a set of international and domestic bodies that are legally authorized to perform oversight and supervisory activities for protecting the rights, freedoms, and legitimate interests of convicts. A classification of human rights mechanisms within the penitentiary system was given, taking into account the universal and regional value of Russian and international laws and their influence on the legal status of convicts serving their criminal sentences. A new type of legal process, (penitentiary) criminal enforcement, was proposed for future consideration and defined. The status of the cross-sectoral institution of death penalty was discussed from our own perspective on the matter. With regard to the primacy of international legal norms and treaties in expanding and upholding the rights, freedoms, and legitimate interests of convicts, it was concluded that the Russian legislative system has a legal axiom worthy of integration into other modern legal systems.

Balancing Equitable Enforcement and Property Rights: Revisiting Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 of India

Abstract The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter “MWPSC Act”) of India, specifically section 23, addresses the responsibility of heirs towards their parents’ maintenance and the consequences of failure in such obligations. This article critically evaluates the interpretation and application of section 23, focusing on the judicial reasoning, implications on property rights, and comparisons with international jurisprudence. The article proposes a balanced approach to ensure equitable enforcement while safeguarding third-party interests and the broader legal landscape. It advocates for a nuanced understanding of the statute, emphasizing the need for explicit conditions, limitations on resorting to section 23, and harmonizing maintenance obligations with property rights. Drawing from foreign legal systems, this article underscores the uniqueness of Indian legislation while highlighting the absence of similar provisions in other jurisdictions. By analysing the interpretation and application of section 23 of the MWPSC Act, this article contributes to the broader discourse on balancing legislative intent, public policy, familial obligations, and property rights in the context of elder care in India.

Правотворческая парадигма конституционного правосудия (на примере Конституционного Суда Российской Федерации)

The article examines the features of the law-making paradigm of constitutional justice. The conclusion is substantiated that the creation of “limits” of lawmaking cannot be an effective way to limit the creation of law, and the Russian legal system, as well as foreign legal systems, has special legal features that affect the legal order in the Russian Federation.

A Study on the liability distribution system for medical accidents: Focusing on comparison of the Medical Accident Handling Special Act and foreign legal systems

A Study on the liability distribution system for medical accidents: Focusing on comparison of the Medical Accident Handling Special Act and foreign legal systems

Evaluative Concepts of Inheritance Law Through the Prism of Harmonization of Private and Public Interests

Problem statement. The article examines various evaluative concepts of inheritance law from the point of view of reflecting private and public interests in them. Research on this topic is very rare. The purpose of the work is to study the evaluative concepts of inheritance law for their compliance with the achievement of both private and public interests. Objectives of the article: 1) research of doctrinal views on private and public interests, as well as on the question of the private and public legal meaning of the right of inheritance; 2) analysis of specific evaluative concepts of inheritance law; 3) identification of the value of evaluative concepts of inheritance law in the harmonization of private and public interests. Research methods: dialectical, analysis, synthesis, formal legal. Conclusions. The combination of private and public interests manifests itself very vividly in such an eval- uative concept as “a decent funeral”. Evaluative concepts related to burial also take place in foreign legal systems. In such an evaluative concept as “malicious evasion” of heirs by law from fulfilling the duties of the testator's maintenance that lay on them by virtue of the law, on the one hand, the private interests of the person filing a claim for recognition of the heir as unworthy are protected (as a rule, these are other heirs whose share in the inheritance mass increases when their claims are satisfied). On the other hand, they are public, since the presence of negative consequences in the law for the heir who maliciously evades the fulfillment of the duties of the testator’s maintenance encourages him to change his behavior and maintain a positive behavioral model in the public consciousness.

My Numerous Detours – Toward Private Law as Society’s Constitution

Abstract The author responds in two ways to the contributions in this special issue dealing with aspects of his scholarly work. In his first, more general response, he traces the influences that various institutions and individuals exerted on him and were reflected in his work on private law theory. In retrospect, he understands both his many years abroad and his involvement with extra-legal disciplines, especially systems theory and sociology of law, as a search for the identity of private law in foreign legal systems as well as in foreign disciplines. At the end of this search stands the concept of societal constitutionalism. The author understands private law as society’s constitution, more precisely: as the legal constitution of the self-governance of a variety of social systems. In a second, more specific response, the author deals with some of the questions raised in the various contributions to the special issue. From the perspective of both sociology of law and legal doctrine, the author addresses problems of society’s constitution that arise, on the one hand, outside the borders of the nation-state in transnational political processes and, on the other hand, outside the institutionalized political sector, in the "private" sectors of world society. They revolve around the theoretical and practical potential of societal constitutionalism: how, in non-state institutions, the new power centers of society, particularly in the emerging socio-digital institutions, private law can set the normative conditions for fundamental rights, the rule of law, democratic participation, and, increasingly today, ecological sensibility.

A Constitution without Constitutionalism: A Gambian Paradox

Constitutionalism and democratization are the current governance trends in Africa, and these are complemented with new constitutions. The Gambia is not an exception as it transcends from dictatorship. However, the country faces a paradoxical menace of a constitution without constitutionalism as it faces deficit of constitutionalism in praxis despite its theoretical deliberation in the State’s 1997 Constitution. This research uses doctrinal or normative legal research with focus on provisions of laws, books, journal articles and other secondary materials that speak to the facts in issue. This Africa’s smallest mainland country is a victim of the 1884 – 1885 Berlin Conference as it still tries to give much premium to foreign legal systems over customary practices of the people before this Berlin project. While constitutionalism seeks to limit the power of the government, its most critical constituent as regards the concept of constitution without constitutionalism is the rule of law. The rule of law premises on the ground that all state’s constituents must be subject to the law. Therefore, the metaphor of a saviour, savage, and victim as the 1997 Constitution, the State and freedom of expression respectively suggests the totality of the complexity of a constitution without constitutionalism.

THE DIGITAL CODE OF RUSSIA: CURRENT STATE AND PROSPECTS

The article examines the expediency and timeliness of the creation and adoption of the Digital Code of Russia in the context of the current state of scientific thought and prospects from the point of view of the importance, necessity, need for answers to the questions posed in the article for the development of society, and the need to study some approaches of foreign legal systems to the issue under study and the resolution of controversial legal and ethical questions arising as a result of the development of both new technologies and scientific and technological progress in general. The scientific novelty is due to the subject of the study and a set of legal approaches reflected in already adopted regulations and their projects (for example, the «Digital Administrative Code» of Italy and the Model Information Code for CIS member States and foreign initiatives). Among the conclusions reached by the author, the opinion that, in general, supporting the idea of this codification, we consider it necessary to pay attention to the way of construction of some of its sections and the idea as a whole, and to a number of problems that require urgent solutions.

The Legal Framework for Community Penalties in Jordanian Law

This study aims to clarify the contemporary criminal justice policy, which endeavors to embrace a system of societal sanctions, also known as alternative punishments, as a viable alternative to conventional criminal justice in the present era. This is in response to the fact that the prevailing criminal justice policy in both Arab and foreign legal systems primarily emphasizes punitive measures, resulting in a surge in crime rates and a mounting caseload in the judiciary. Upon concluding our study, we determined that the Jordanian legislator made a proper decision by implementing many alternative societal sanctions, such as social service, social control, and social service, which are acknowledged in comparable laws. There should be strong assurances in place to ensure that convicts can be successfully reintegrated into society after their release. This includes allowing conditional release, where a convict's good behaviors do not prevent them from benefiting from this measure before the specified end date of their sentence. It is important to always provide opportunities for convicts to benefit from alternative punishment systems, as this decision should be based on the best interests of society, rather than solely on the convict's interest.

COMPARATIVE LEGAL ANALYSIS OF THE REGULATION OF FAMILY AGREEMENTS IN THE RUSSIAN FEDERATION AND IN THE REPUBLIC OF BELARUS

The property and personal non-property rights and obligations of spouses occupy an important place in the legislation of all countries of the world, since the institution of family and marriage is an integral part of civil society and the basis of family legislation. At the same time, in the Russian Federation, within the framework of the contractual regime of spouses, there is a differentiation of property and personal non-property relations between spouses, whereas in a number of foreign legal systems, in particular in the Republic of Belarus, it is possible to mix these legal relations within the framework of one contract. In this article, the author will consider the specifics of the regulation of a marriage contract, an agreement on the division of marital property, an agreement on the payment of alimony and an agreement on children (an agreement on the procedure for exercising parental rights by a parent living separately from a child) under the legislation of the Russian Federation and the Republic of Belarus.

Diversified Nature of the Principle of Good Faith in Russian Law

In the article, the author examines the processes of changing legislation in Russia that reflect the general trends formed in society. The author concludes that by analyzing the trends in the development of domestic and foreign law, it is possible to predict the main directions of the development of legislation, including specific nature of the application of the principle of good faith.The paper notes that one of the trends that have developed in foreign legal systems is the constitutionalization of private law and the strengthening of the principles of socialization of law, expressed in the evolution of the principle of good faith. Dissemination of the principle of good faith in public legal relations forms another direction in law that, according to the author, means dissemination of the principle of good faith in public legal relations, which is why this principle is applied, in particular, in tax relations.As a result of the study, the author comes to the conclusion that in order to ensure uniformity of the constitutional law approach to the application of the principle of good faith, given that constitutional norms, principles and values should act as direct regulators of public relations within the process of socialization of law that is carried out simultaneously with the gradual blurring of the dividing line between private and public law, it is advisable to distribute civil law approaches to applying the principle of good faith as the most effective and developed, to other branches of law, which will correspond to the diversified nature of this principle.

Patenting and Implementation of Medical Technologies in Russia: Theoretical and Practical Aspects

The paper examines the legal regulation of medical technologies in the context of patenting inventions. The problematic issues raised in this study are of a systemic nature, in connection with which the need for a substantive analysis of the definition of «medical technology» through its components — medical method and method — is argued and the need for their consolidation in the legislation on health protection is justified. The author elucidates the concept of medical technologies in foreign legal systems and explains the absence of the need to borrow foreign experience. Based on the analysis of patents issued in the Russian Federation for methods and ways of treatment, it is concluded that the current legal regulation allows patenting medical technologies as a complex object, while making appropriate changes to the Civil Code of the Russian Federation will eliminate discrepancies existing in law enforcement practice. An integrated approach has made it possible to identify a number of systemic causes that hinder the effective implementation of innovations in practical medicine; ways to eliminate them are proposed.

Effectiveness of judicial protection methods of the rights of a corporate agreement parties: experience of foreign countries

The article is focused on studying the effectiveness of judicial protection methods of the rights of a corporate agreement parties in foreign legal systems. The author of the paper has analyzed legislative tendencies to reduce the list of possible methods of protecting the violated rights of a corporate agreement parties, defined by the latest corporate legislation compared to the previous Law of Ukraine “On Joint-Stock Companies”. New approaches in domestic judicial caselaw regarding choosing an effective method to protect the violated right by using the principle “the court knows the laws” have been studied. The author has formulated the factors that should be regarded while choosing the method of protection of the violated right, namely: a) it is necessary to use exclusively an appropriate method of protecting the violated right (established by law or a corporate agreement), which corresponds to the consequences of the violation and whose choice belongs to a plaintiff; b) such a method of protection must be effective. It has been systematized that the methods of protecting the violated rights of a corporate contract parties in foreign legal systems are divided into three groups: 1) mandatory (collection of penalties, damages, compensation), 2) corporate-binding (rescission of a contract) and 3) corporate (invalidation of a business entity decisions that violate the terms of the corporate agreement concluded by all participants). The author has analyzed such methods of protecting the rights of a corporate contract parties in foreign legal systems as compensation for damages, collection of penalties and stipulated damages, payment of compensation, enforcement of obligations in kind, etc. The necessity of harmonizing the national legislation in regard to a corporate agreement with a foreign method has been argued, in particular, the introduction of such a method of protecting the rights of a corporate agreement parties as compensation into Ukrainian legislation. It has been concluded on the basis of the conducted research that the list of the most effective methods of protecting the rights of a corporate agreement parties should be enshrined in the legislation, such as: compensation for damages, collection of penalties, collection of stipulated damages, payment of compensation, rescission of a corporate contract agreement or its certain parts, etc.

Review and Proposal Regarding Tattooing Procedures

Purpose: The societal perception of tattoos has evolved, and tattooing procedures have become more prevalent. However, tattooing constitutes a medical procedure involving invasive actions on the skin, thereby falling within the scope of medical practices. Unless performed by qualified medical professionals possessing medical expertise, there is a constant risk of jeopardizing the life, physical well-being, or public health of tattoo recipients. Consequently, this paper seeks to investigate the current state of tattooing practices in South Korea, examining the legal issues at hand, and proposing measures to mitigate potential harm to consumers.
 Method: Through a comprehensive review of prior research and analysis of relevant literature, including an examination of judicial precedents, this study aims to examine the stance of the Constitutional Court and the Supreme Court regarding tattooing. Additionally, it seeks to review the legislative systems pertaining to tattooing in foreign countries such as the United States and Japan in order to propose improvements to the current tattooing system and suggest measures for consumer protection.
 Results: Through a review of legal precedents in our country, we have identified the evolving perception regarding the practice of tattooing. Additionally, by conducting research on foreign laws and systems, we have gained new insights into the legalization of tattooing and the considerations for potential solutions. By engaging in comprehensive discussions encompassing the protection of citizens' right to life and health, public health concerns, as well as the artistic nature, freedom of expression, and freedom of occupational choice associated with tattoos, we have sought to explore measures for improvement in the field of tattooing.
 Conclusion: Through this study, it was possible to ascertain the changing public perception of tattooing. Additionally, by conducting an analysis of foreign legal systems that reflect the evolving perception of tattoos, avenues for the legalization of tattooing could be explored. Protecting the right to life and promoting health, which are the objectives of medical law, naturally entail reserving medical procedures for qualified healthcare professionals. However, given the difficulty of reversing the widespread acceptance of tattooing brought about by societal changes, it is now necessary to consider the legalization of tattooing through legal and regulatory frameworks. This should be accompanied by consistent governmental oversight and supervision by the Ministry of Health and Welfare to safeguard the health rights of the population.

The Key Problems Facing Civil Justice Today Are Cost, Delay & Complexity: A Critical Review

Our judicial structure owes to the colonial administration for its evolution & is still bearing the remnants of the system it inherited from its predecessor. Our judiciary is still following the adversarial trial system. Though the British legal system has developed to a standard for others we are still on the same footing where they left us. We could not overcome the obstacles associated with the civil justice system. The main problems facing our judiciary are the cost, delay & complexity. Several steps have been taken to solve the problems but deserved success cannot be achieved. The main problem lies probably in the identification of the real problems & providing pragmatic solutions. In this research I have tried to identify the real problems by interviewing different legal persons & litigants, by analyzing the opinions of different scholars & taking into account the attitude of the society towards the civil litigation social aspects & applying my own reason & experience. I have evaluated the reforms made in some foreign legal systems to compare with our system specially the Woolf’s reform in England. Lastly, I have provided some reform & amendment proposals based on the findings.

Asset Partitioning in Roman Law

This article describes results of analysis of the problem of asset partitioning in Roman law. Under asset partitioning the author understands the legal technique, which consists in giving property or part of it a special legal regime, which usually manifests in the relationship with creditors (the division of property into pools of assets available to different creditors), but may also manifest outside of the relationship with creditors.
 Various forms of asset partitioning are analyzed on the example of the following institutions of Roman law: dowry, peculium, lying inheritance, fiscal, societas publicanorum, property of municipalities, property of partnerships and families, common property. The author analyses the economic and socio-political reasons for the asset partitioning in Roman law, as well as the legal constructions by which it occurred. The article compares the legal institutions of Roman law related to asset partitioning with the institutions of modern law in Russia. The article also explores the question of the relationship of property separation with more studied and widespread legal structures (legal entity and retroactive force). Particular attention is paid to the problem of a legal entity (fictitious person) in Roman law in the context of the issue of asset partitioning and limited liability.
 The article shows the influence of Roman law on the existing legal systems and provides modern examples of the use of legal asset partitioning in foreign legal systems. The author substantiates the prospects of research and use of asset partitioning as an independent legal technique.

Institute of the Financial Commissioner as a tool for resolving insurance disputes

The subject of the study is the specifics of legal relations arising in the sphere of functioning of the institution of the financial commissioner as an instrument for resolving insurance disputes. Due to the fact that the novelty of the Institute of the financial Commissioner has caused sufficient activity of research interest in scientific circles over the past five years, the author of this study pays attention to certain aspects not previously studied. The object of the research is the institution of the financial commissioner as a tool for resolving insurance disputes in the context of its doctrinal understanding and legal essence. Particular attention is paid to the transformation of the method of alternative settlement of insurance disputes (in foreign legal systems) into a jurisdictional institution providing mandatory pre-trial settlement. The main conclusions reached by the author are as follows. The domestic Institute of the Financial Commissioner distorts the legal nature of the institution of the financial Ombudsman, transforming an alternative way of resolving the dispute into a stage of consideration of the appeal as a mandatory pre-trial settlement. From an effective tool for resolving an insurance dispute, forming a systematic approach to resolving standard disputes and optimizing the insurance services market as a whole, the institution of a financial commissioner has been turned into a mandatory jurisdictional stage for considering insurance disputes of a certain category. The regulatory framework governing the activities of the financial Commissioner does not include professional and functional special principles of activity. Meanwhile, it is the special functional principles that determine the legal essence of the institution of state power authorized to consider appeals in any field. The conclusion is formulated about the incomplete implementation of the requirements of Federal Law No. 123-FZ, which is confirmed by the analysis of information from open sources. The main contribution of the author to the research of the topic is the analysis of the legal nature and purpose of the institution of the financial commissioner as a tool for resolving insurance disputes. The scientific novelty lies in the substantiation of the conclusion about the transformation of the institute implemented from foreign legislation into an institute with a fundamentally different purpose and content.

Legal regulation of the status of a teacher in international acts and legislation of foreign countries

The article is devoted to the analysis of the legislative regulation of the status of a teacher in various legal systems and international law. In particular, universal and regional specialized acts in the field of fixing the status of a teacher and his social guarantees, as well as the features of such regulation in some foreign legal systems are considered. The author in his scientific study analyzes the international acts of the United Nations, the International Labor Organization, UNESCO in the field of registration of the teacher's status. Particular attention is paid to the countries whose education systems occupy leading positions in the ranking of countries: Finland, China. The Finnish education system occupies a leading position in terms of the level of school education, the experience of which is analyzed by the world educational community as a “Finnish phenomenon”. A scientific study of the teacher's status was carried out using data from international ratings, such as the Global Teacher Status Index, PISA (Programme for International Student Assessment). The author focuses on the activities of independent professional associations for the protection of teachers' rights in foreign countries and their role in strengthening the status, providing social guarantees, and protecting rights. A critical analysis of the principles of the activities of the Kazakhstan Branch Trade Union of Educational and Scientific Workers for compliance with its generally accepted standards of the International Trade Union Confederation has been carried out. The article assesses the law of the Republic of Kazakhstan “On the status of a teacher” from the position of compliance not only with international law standards, but also with the requirements of modernity

Radnopravni položaj platformskih radnika – analiza stanja i perspektive uređenja

With the development of digital labour platforms, new forms of work were established. Determining their legal nature, due to the specificity of the relationships that they constitute of, is not an easy task. This situation has led to legal uncertainty regarding the labour law position of platform workers, which has opened opportunities for abuse of their rights, especially in the form of denial of basic labour and social rights they should be entitled to. In the article, we will try to determine the labour law position of platform workers in the Republic of Serbia, and whether it is necessary to change the existing legislation in order to adequately regulate this issue. To this end, law, and by-law solutions in force in our country will be analysed and critically reviewed, while some of the solutions present in foreign legal systems, as well as concepts afrmed in literature, will be illuminated by applying the comparative method. In the fnal part of the article, the general direction of changes related to regulating the labour law position of platform workers will be offered.