Legislative Intent Research Articles

Authority, Democracy, and Legislative Intent

On one account, courts ought to enforce legislative intent only when the public meaning of the text of the statute is unclear, and on another account, they should enforce the intent even when the public meaning is clear. In this paper, I argue against both approaches. My argument rests on considerations related to the moral authority of the democratically made law. More specifically, I argue that those considerations which make democratic law morally authoritative entail that judges ought to enforce the public meaning, when this is clear, and that interpretation of the public meaning which is closest to the balance of moral reasons, when the public meaning is unclear.

Policy Intervention and Legislative Framework Relating to the Sustainability of Built Structures in India

If not coupled with effective urbanization and utmost planning for crucial and optimum resource utilization, sustainable development becomes a fiction. Rapid urbanization and industrialization have been a key source of concern for the environment's consistent deterioration. With the presence of evident impediments, there is already a conscious limit on industrial growth in place. However, urbanization cannot be fully stifled in order to foster green movement, and vice versa. Among the many efforts made by the Indian government to improve energy efficiency and the sustainability of the built environment, the desire to incorporate important market players, along with legislative incentives, has begun to make a difference. The primary actors have been divided over the choice of ratings since the introduction of GRIHA (Green Rating for Integrated Habitat Assessment), IGBC (Indian Green Building Council), and BEE (Bureau of Energy Efficiency), offering a bewildered outlook with the many regulatory indexes and perimeters. The policies/ratings/mechanisms in place in many states to maintain the energy efficiency of the built environment are incompatible, resulting in a significant margin of error. For efficient implementation of these policies, the involvement of adequately empowered local entities becomes critical. This cannot be done without first examining the influence of current regulations and frameworks on the energy usage and functioning of the built environment, which includes both residential and commercial structures.

‘원고는 소를 취하하고, 피고는 이에 동의한다’는 내용의 화해권고결정의 효력

This article raises questions about the judgment of the Supreme Court 2018 Da 230229 sentenced on July 29, 2021, which held that the decision to recommend a settlement that ‘the plaintiff withdraws the lawsuit and the defendant agrees thereto’ has the same effect as the withdrawal of the lawsuit and reviews the essence of the decision of recommendation for settlement through the legislative intent and comparative legal analysis.
 Considering the legislative purpose of the decision of recommendation for settlement and the similar systems in Japan and Germany, the decision cannot be regarded as a special type of judgment.
 The purpose of the decision of recommendation for settlement is to settle disputes amicably between the parties by giving authority and credibility to the court's recommendation for reconciliation, and the basic framework is that it takes effect only when the parties do not file an objection, and its effect is the same as that of a settlement in litigation. The decision of recommendation for settlement is substantially the same as the court's presentation of a settlement clause or a compromise proposal. Therefore, the content of the decision of recommendation for settlement should be the same as that of a settlement in litigation.
 When the subject of litigation itself is a matter requiring a legal relationship to be formed through judgment, the parties cannot freely dispose of the subject, and, therefore, a decision of recommendation for settlement is not permitted. The requirements for litigation are matters related to public interests, not private interests, and should be investigated ex officio. They do not fall under matters that the parties can freely dispose of, so a decision of recommendation for settlement is also not permitted.
 An agreement between the parties only to terminate the lawsuit is only a withdrawal of the lawsuit and its consent, but it does not fall under the settlement of the lawsuit, and it should be treated as a withdrawal of the lawsuit according to the intention of the parties. The decision to recommend a settlement stating that ‘the plaintiff withdraws the lawsuit and the defendant agrees thereto’ should also be regarded as illegal and ineffective.
 An arbitrary decision of recommendation for settlement which only aims to resolve disputes expeditiously must be avoided.

선거운동에 관한 내용 중립적 규제의 위헌심사강도 세분화 가능성

Regulation of speech can be categorized into content-based regulation and content-neutral regulation. This classification is widely accepted by both the Constitutional Court of Korea and the U.S. Supreme Court. However, distinguishing between the two types is not always clear in actual legislation. Therefore, a flexible approach is necessary when conducting constitutional review. In particular, regarding content-neutral regulation - even if a certain regulation is deemed to be content-neutral on its face -, it is necessary to consider the legislative purpose and the secondary effects caused by the legislation in order to determine whether the regulation functions as a form of censorship that prohibits expression itself or its content. Prior to such a discussion, it should be determined whether the regulation focuses on restricting actions rather than the expression itself, which may require a relaxed intensity of constitutional review. Based on the above, the Restriction on Use of Loudspeaker Systems clause in Public Official Election Act can be considered as a form of conduct-regulation rather than speech-regulation. The Prohibition of Installing of Facilities and Prohibition of Unlawful Distribution or Posting of Documents and Pictures in Public Official Election Act require alternative measures to minimize the restriction of political speech. The Restriction on Various Assemblies in Public Official Election Act is considered unconstitutional. In this regard, the recent decisions of the Constitutional Court of Korea are considered justifiable.

문화산업진흥 기본법의 한계 및 개선방안 연구

Beyond the industrialization of culture, the cultural industry is created in a digital form by using generative AI as a creative tool. For the purpose of realizing a cultural state, the Cultural Industry Promotion Act, enacted in 1999, has been faithful to the legislative purpose of promoting the cultural industry for the industrialization of culture. In the meantime, not only the creation of culture but also the consumption methods of consumption have been diversified. In particular, the creation of content by generative AT is reaching a situation where the paradigm for creation and consumption can be changed. It is necessary to think about the digital ecosystem, not just digital transfonnation, and in line with this, essential changes in the cultural industry are expected. This is why legislation for sustainable growth of the cultural industry in the deepening period beyond the digital transition period is required. It will focus on the current status of cultural industry legislation such as the Cultural Industry Promotion Act and the Content Industry Promotion Act, the digital transformation system, its status as a basic law, and overlapping content-related regulations. In summary, the limitation of the Cultural Industry Promotion Act is that it focuses on the typification of traditional cultural industries. In addition, the limitation is that it is limited to roles as individual laws rather than roles as basic laws. Although the Cultural Industry Promotion Act is a basic law, it has been confirmed that there are various limitations such as the lack of a digital transfonnation response system such as status and system and the rise of AI as a basic law. Based on these limitations, I would like to present an improvement direction. In particular, it was also confirmed that although it is a limitation of the Cultural Industry Promotion Act, much of the Cultural Industry Promotion Act overlaps with the Content Industry Promotion Act. To this end, we would like to present the consistency of the two laws by reviewing the overlapping matters of the Cultural Industry Promotion Act and the Content Industry Promotion Act.

한의사의 진단을 위한 의료기기 사용에 관한 소고

South Koreaʼs medical system is dualized into Western medicine and oriental medicine, and accordingly, the doctorʼs license and oriental medical doctorʼs license system are in operation. Until now, the Supreme Court has judged the criteria for determining whether an unlicensed medical practice is established for the use of diagnostic medical devices by oriental doctors as follows. First, the legislative purpose of the dual medical system, Second, the provisions and purposes of laws related to the medical practice, Third, the academic principles underlying the medical practice, and Fourth, the course, purpose, and appearance of the medical practice, Fifth, it is necessary to comprehensively consider whether medical schools and oriental medicine universities have secured expertise through curriculum or national tests, and to make a reasonable judgment in light of social norms. However, the recent Supreme Court's Decision 2016Do21314 Decided December 22, 2022 ruled that oriental doctorsʼs using an ultrasound diagnostic device did not constitute unlicensed medical practice. The criteria for judging the majority opinion of the en banc judgment are as follows. First, the relevant laws and regulations should prohibit oriental medical doctors from using the medical device. Second, in light of the characteristics of the device and the level of basic and professional knowledge and technology required for its use, oriental medicine doctors should use it as an auxiliary means of diagnosis. Third, in light of the circumstances, purpose, and appearance of the entire medical practice, it should be considered whether it is clear that the use of the diagnostic device by oriental doctors is irrelevant to the application and application of it based on the principle of oriental medical practice. Fourth, from the perspective of criminal justice, the meaning of oriental medical practice should be clearly and strictly interpreted from the perspective of oriental medicine doctors, it was judged that diagnostic medical devices should be excluded from criminal punishment unless it is clear that they are not related to the principle of oriental medical practice. The use of medical devices by oriental doctors presupposes or links to oriental doctorsʼ diagnosis and treatment behavior, and diagnosis has a significant role in determining whether to treat or not and setting treatment methods. This paper aims to reduce the possibility of harm associated with medical accidents and help establish a reasonable doctor and oriental medical doctor license system by comprehensively examining diagnostic medical devices that have been mainly problematic.

중국 반독점법 2022년 개정법의 실체법적 개정사항

On June 24, 2022, at the 35th meeting of the Standing Committee of the 13th National People's Congress, the amendment to the Anti-monopoly Law of the People's Republic of China was passed. It was decided to go into effect on August 1st. This is the first amendment to China's Anti-monopoly Law since its implementation in 2008. A new purpose was proposed in maintaining an orderly market system. This amendment adds innovation encouragement to the legislative purpose of the Anti-monopoly Law, in line with Xi Jinping's leadership's keynote on state affairs, which has emphasized technological innovation. It is specified in this law that it is responsible. In the 2018 central organizational reorganization, the newly established State Administration for Market Regulation, the Anti-monopoly Bureau, which was in charge of anti-monopoly work that had been distributed among the Ministry of Commerce, Development and Development, and the General Administration of Industry and Trade, was separated into a vice-ministerial level organization and upgraded to the State Anti-monopoly Bureau. The amendment bans monopoly, exclusion, and competition restrictions that abuse administrative power, and strengthens the level of punishment, such as significantly increasing the level of fines and linking antitrust penalties with credit records. Clarify the criteria for screening and classifying managers to strengthen screening of managers related to the national economy and livelihood, while introducing a safe harbor rule to exclude managers from sanctions if they prove that their market share is lower than the anti-monopoly standards made with In addition, managers who provide “substantial help” in concluding and implementing monopoly agreements are also subject to sanctions. The amendment is a review of China's anti-monopoly law enforcement over the past 10 years during the deliberation of the revision of the Chinese anti-monopoly law, and can be seen as a summary of legal practice experience. This is a demand inherent in the development of China's socialist market economy, and can help meet the objective demand of the new development pattern. It is conducive to introducing Chinese anti-monopoly law supervision and strengthening anti-monopoly law enforcement, which will be scientifically and objectively conducive.

China’s Family Education Promotion Law: Family Governance, the Responsible Parent and the Moral Child

Abstract This article discusses China’s newly enacted Family Education Promotion Law (FEPL). The FEPL symbolizes that family education through parenting has elevated from a private matter to a State affair in the country. The Law seeks to promote family governance through the concept of ‘parenting in accordance with the law’ so as to attain national ideals and improve the protection of minors. The prominent ends at the national level are the moral development of children and the construction of a harmonious State. Concepts of ‘population quality’ and ‘double alleviation’ are discussed with reference to their significance in relation to the enactment of the Law. The promulgation of the FEPL targets substandard parenting practices in China, including hyper-parenting on the one end and abandonment on the other. Typical practices such as inter-generational child-rearing are examined to illustrate why the Law is considered necessary from the State’s point of view. The article provides an analysis of the legislative intentions, background, and key provisions of the Law. It concludes that family governance through the notion of responsible parenting is an instrument of social policy in modern China.

Proposal to Supplement Slovenian Legislation in the Military Field

Abstract The foundation of any activity of all state bodies must primarily be based on state legislation. The military field, which is narrower than the defense field, with all the characteristics and properties of the largest collection of kinetic energy and at the same time the integrated energy of state institutionalized coercion, is even more dependent on the meaning and purpose of state legislation. It would be recommended that in the future Slovenian legislation in the military field would more effectively and above all more successfully follow international developments in the field of military legislation, science and military research and development. It should be emphasized that interdisciplinary content in the military field requires special attention, caution and, above all, far-reaching predictability, which is extremely difficult in the modern world, but not impossible. The predictability of future military events requires clear, target-specific and unambiguous legislative content.

A Study on the Guarantee of Chinese One-man Company for Its Shareholders

Purpose - Research the legality of one member company’s shareholder guarantee. First of all, as far as the legislative purpose of the decision-making power of the shareholders’ meeting and the procedure for shareholders to avoid voting under the special guarantee stipulated in the Company Law of China is concerned, its legislative purpose is to prevent major shareholders from abusing their rights, protection of the Company and minority shareholders.
 Design/Methodology/Approach - There is no difference between large and small shareholders in a one-person company. The only shareholder of a one-person company is the only participant in the company’s operation and decision-making, who has the most direct understanding of the company’s operation, and has the most clear judgment on the company’s major issues. The oneness of the shareholders of a human company makes their behavior not only represent the will of shareholders, but also reflect the will of the company.
 Findings - Therefore, the Company Law does not deny the legality of one person’s company’s guarantee for shareholders. Secondly, the current Company Law has legally confirmed the full guarantee capacity of the company, and it is legitimate for the company to provide guarantees for others, shareholders or actual controllers of the company.
 Research Implications - Based on not violating the relevant principles of the Company Law, one person company’s provision of security for its shareholders belongs to the territory of “company autonomy”. As long as its procedures are legitimate, its behavior naturally has legitimacy.

'Regard is to Be Had': The Legislative Intent of Article 7 (1) of the CISG (part 2)

This chapter argues that 'regard is to be had' pertaining to 'good faith' means that the acts and omissions of the parties must be interpreted considering the principle they observe good faith in international trade. Furthermore, 'good faith' was an implicit principle which would have had implications for the CISG interpretation and the contract between the parties even if not included in the text. However, if not included, the approach taken by UNCITRAL might be deemed as against 'good faith'. Additionally, 'good faith' was not built upon a prior uniform law.

The right to protect democracy in the Czech Republic: arguments of constitutional jurisprudence

The article is devoted to the study of the lustration mechanism in the Czech Republic. For this purpose, the relevant legislation was analyzed, which established restrictions on access to positions for some categories of persons due to their behavior during the totalitarian regime.
 Special attention was paid to the analysis of the decision of the Constitutional Court of the Czech Republic, which resolved the issue of the constitutionality of lustration laws. It is emphasized that the Constitutional Court recognized the nature of lustration as the removal of citizens from the possibility of access to positions in state authorities, which is carried out directly on the basis of formal, categorical features, and not by individual condemnation of persons, according to the criteria established by law, based on the obligation to respect democratic principles Each state has the right to determine the conditions of access to participation in governance, and one of these conditions is loyalty to democracy. At the same time, no person is limited in access to a political function (deputies, senators). The lustration laws do not deal with establishing guilt and punishment. Instead, the implementation of lustration procedures is subject to judicial control.
 The purpose of lustration legislation in this state reflected a substantial public interest. Second, the experience of the Czech Republic emphasizes the difference between lustration as a phenomenon and mechanisms of legal responsibility. The practice of lustration is compatible with the values of a state based on the rule of law, if the means chosen by the legislator in its implementation are proportional to the defined goal.
 It was concluded that the application of lustration legislation in the Czech Republic had an undeniable impact on the direction, sequence and pace of systemic reforms. In addition, the lustration legislation solved another problem - the protection of the rights of the persons to whom it applies. These persons were protected from the unlawful use of archival materials related to them.

Does it Exist? LibertyWorks and Australia’s Shrinking Implied Freedom of Political Communication

In this article we examine the recent High Court decision in LibertyWorks Inc v Commonwealth of Australia (‘LibertyWorks’). We argue that this decision fails to properly apply the implied freedom of political communication (the ‘implied freedom’) in four principle ways. First, the majority judgments do not properly grapple with the complexities of legislative purpose. The Foreign Influence Transparency Scheme Act 2018 (Cth) (‘FITS Act’) targets foreign influence rather than just covert and corrupt foreign interference, yet the judgements blur this important distinction throughout. If the true legislative purpose of the FITS Act is to increase transparency to prevent foreign influence, this purpose is illegitimate and incompatible with Australia’s representative government, so the FITS Act should fail on this basis. Alternatively, if the true purpose is to increase transparency to prevent foreign interference, that legislative purpose is not served by the scheme, because it is ineffective in achieving its aim. Second, the majority in LibertyWorks do not properly assess the legislative breadth of the FITS Act, including the wide range of actors to which the obligations to register relate. This, we suggest, imposes a broad and, arguably, unbalanced burden on free debate. Third, the majority do not pay sufficient regard to the different tiers of registration, which create not only public, but also private (and therefore unjustified) catalogues of information. Finally, Steward J’s constitutionally conservative (yet paradoxically activist) claim that the implied freedom may not exist appears to invite a future constitutional challenge to the implied freedom. We argue his Honour may be right, but not for the reasons he elucidates. In our view, the implied freedom was essentially non-existent in this case because it was not robustly applied by the High Court.

Exploration on the Effectiveness of Incidental Review of Normative Documents

The newly revised Administrative Procedure Law in 2014 established an incidental review system for normative documents of administrative litigation in China. The establishment of this system is a great progress under the background of legal construction in Socialism with Chinese characteristics, which has shifted the boundary between administrative power and judicial power. Based on the legislative intent and extensive case data, this paper analyzes the present situation of incidental review of normative documents, so as to further explore the dilemma that the results of incidental review of normative documents are not binding on other courts and the enforcement effect of incidental review of normative documents is weak. Based on the practical experience of normative review system in developed countries, this paper puts forward three solutions: establishing guiding cases, information circulation within the judicial system and establishing the revocation system of people's courts, in order to understand the effectiveness of incidental review of normative documents more deeply.

CRITIQUE OF THE STRATA MANAGEMENT ACT’S ‘SOCIAL LEGISLATION’ PURPOSE IDENTIFIED IN INNAB SALIL v VERVE SUITES MONT’ KIARA [2020] 12 MLJ 16 (FC)

This case note provides a critique of the ‘Social Legislation’ purpose of the Strata Management Act 2013 identified in Innab Salil & Ors v Verve Suites Mont’ Kiara [2020] 12 MLJ 16 (‘Verve Suites’). This case note suggests that the ‘social legislation’ purpose identified in Verve Suites achieved two purposes. First, it identified the Act’s broad legislative purpose and guided its statutory interpretation. Second, it provided a normative rationale which justified why it should be read as taking precedence over other legislation. However, it is suggested that the words ‘social legislation’ applied to the Strata Management Act 2013 may be a misnomer. It is proposed that the Federal Court should reconsider a restatement of its findings on the ‘social legislation’ purpose of the Strata Management Act 2013.

Walking into the Philippine Legislation: An In-Depth Analysis of the Daughter Clause of Article 247 of the Revised Penal Code

Article 247 of the Revised Penal Code is the Philippine version of honor-based legislation. This study aimed to analyze and examine the daughter clause of the article. The study delved into the legislative intent behind this Article as well as its conformability and harmony with the Constitution, international conventions and treaties, and local legislations through the blackletter methodology. By the use of a socio-legal method, it also examined the contestations on its implications specifically its justness and contemporaneous aptness. Furthermore, it assessed the repercussions it poses to minor daughters and the measures that should be taken to address the quandary of the Article. The findings showed that Article 247 is rooted in the principle of patria potestas and it does not conform with international obligations, municipal laws, and the Constitution. Its constitutionality was reviewed in accordance with the equal protection clause and the discriminatory classification of daughters. Since questions of its constitutionality remain as an argument due to the lack of locus standi, legislative measures are recommended to be pursued. It also reflected that as per the experts’ responses, Article 247 is unjust, archaic, and discriminatory to minor daughters. Moreover, the Article was found to reinforce patriarchy and the barbaric nature of medieval times which is not attuned to the current societal norm and civilized community. As reflected from the data, Article 247 has no place in the statutes of the Philippines, and should therefore be repealed.

THE CHANGE OF TIME AND PLACE AND ITS IMPACT ON THE CHANGE OF FATWA

This study is concerned with a contemporary, applied, and fundamental investigation of the issue of fatwa change and its impact on the change of time and place, with the assertion that Islamic jurisprudence is not rigid on the transmitted and that this change occurs on rulings based on diligent principles. Following the definition of the rules and grounds for this shift, we will analyze what the word “change of time and place” means and how it affects the fatwa, using examples from current culture. The researcher used an inductive-deductive approach to write the research. And reached various conclusions and recommendations, the most essential of which are that the change in the fatwa has controls that must serve the legislative aims and the interests of the people, so it is not governed by whims and does not diverge from what the legislator intends. Similarly, the revision in the fatwa has a lawful basis, because the judgement would have required suffering and harm to people, and the ruling would have broken Sharia laws that are based on mitigation, facilitation, and warding off harm and corruption.

Konsep Koperasi Dalam Tinjauan Filsafat Hukum Ekonomi

Welfare is one of the goals of the societies that make up the state. There are various ways to fulfill it, one of which is a cooperative. A cooperative is an association of people or entities that gives people the freedom to enter and leave as members, to work together in a family manner in running a business to fulfill or improve the welfare of its members. Mohammad Hatta as the originator of Article 33 of the 1945 Constitution has formulated his philosophical thoughts about the economic system of the Indonesian nation, he emphasized that the principle of kinship is cooperatives, this law is a working effort towards the national economy. Based on these provisions, cooperatives are a constitutionally valid system. At a macro level, cooperatives are envisioned as the backbone of the Indonesian economy based on the principle of kinship to create prosperity and community welfare. In its application, many cooperatives have succeeded, but also many have failed, some have stumbled over fraud cases and so on. Based on this, the question raised in this paper is, how is the ideology, concept and legal structure of cooperatives based on law in Indonesia in terms oEf the philosophy of economic law? To analyze it, the author uses the library research method by collecting valid and relevant data and then comparing, criticizing and analyzing, to draw the right conclusions. The theory of approach is the school of utulitarianism which argues that the purpose of law is the greatest welfare for the people, and legal evaluation is carried out based on the consequences resulting from the process of applying the law. Adherents of this school consider that the purpose of law is to provide as much benefit and happiness as possible to citizens. The purpose of law according to Jeremy Bentham is to realize the greatest happiness of the greatest number, aka the purpose of legislation is to produce happiness for society. Then what about the cooperative system as a system of national economic realization, whether this system by law has fulfilled the principles of utilitarianism. The result of this research is that happiness, defined as the general welfare, must be above all individual happiness in the eyes of the constitution. The argument is that the happiness of all people involved in an event or endeavor is not the happiness of one person alone, but includes all the happiness of its members in general. The happiness of one person should not be considered more important than the happiness of another, hence like the King and subordinates should be treated equally. Thus an action or endeavor is considered good when happiness outweighs unhappiness, and the happiness of everyone involved should be treated in the same way.

Settlement on Admission of Guilt – Pros and Cons

Aim: The settlement on the admission of guilt is a relatively new legal institution in our criminal procedure law. Not even five years have passed since the entry into force of the relevant regulation, however, the representatives of the profession are still keenly interested in the question of whether the results of the legal application of the agreement justify the legislator’s expectations. The author of this study aims to reflect on some significant critical professional observations from his point of view.Methodology: The author discusses the regulatory history of the legal institution and the legislative intent behind it. It quotes the most important scientific research results. Eventually, it draws conclusions based on statistical indicators.Findings: The low statistical data of the settlement does not give a complete picture to consider this legal institution. According to the author’s point of view, it is not merely a question of quantity but also quality. It can be concluded that, in practice, settlement typically takes place in complex, complicated cases, whose financial and human resources, as well as their social focus, exceed the average.Value: The study sheds light on the issue of how the settlement is judged from a new angle, therefore shading the criticism that this legal instrument did notfulfil the expectations attached to it.

Examples of Applications of the Purposes of Islamic Law According to Dr. Wahba Al-Zuhaili


 
 
 
 The research is based on devising models of the legal purposes of Dr. Wahba Al-Zuhaili through his books on the principles of jurisprudence and interpretation. Due to the many types of purposes, their divisions, and their ranks, the researcher has limited the discussion in this research to the five necessary purposes, which are religion, soul, mind, offspring, and money. The research presents examples of the purposes of general legislation, such as the purpose of justice, moderation, moderation, non-arbitrariness, inclination, and injustice, to make it easier for the Muslim to know what God Almighty wants, whether by His commands and prohibitions, or by what is permissible or forbidden. Accordingly, the research introduces a contemporary scientist, and shedding light on his biography and scientific efforts. The research is divided into two sections:
 - section one deals with the meaning and types of purposes, and the definition of Dr. Al-Zuhaili
 
 
 
 
 - section two includes two requirements, the first contains examples of necessary objectives, and the second includes examples of general legislative objectives.