Judicial Regulation Research Articles

Research about the Regulation of Environmental Administrative Penalty Discretion

With the rapid development of China’s social economy, environmental problems have become increasingly prominent. The construction of ecological civilization has become the focus of China’s socialist modernization construction. In the face of increasing environmental risks, it is difficult to regulate the exercise of environmental administrative penalty discretion and increase the difficulty of implementing environmental administrative penalty decisions due to the limitations of legislative regulation, negative judicial regulation and weak administrative regulation. Based on the basic theory of discretion in environmental administrative punishment, this paper analyzes the function of discretion in environmental administrative punishment, clarifies the necessity and principle of discretion in environmental administrative punishment, and puts forward the regulation path.

Corruption, Economic Growth, and Non-performing Loans in Sub-Saharan Africa: An Empirical Analysis (2011–2019)

AbstractThis study explores the impact of corruption and economic growth on non-performing loans (NPLs) in Sub-Saharan Africa (SSA) after the global financial crisis. We use the Arellano-Bond Generalized Method of Moments dynamic panel estimation procedure on 493 banks from 31 Sub-Saharan African countries from 2011 to 2019. We find that corruption and economic growth have significantly positively and negatively influenced NPLs in SSA, respectively. We further investigate how corruption affects NPLs and observe that bank size and NPLs have a positive relationship. Simultaneously, well-capitalized banks and the effectiveness of the judicial system reduce the level of NPLs. The study's uniqueness lies in evaluating the impact of corruption on NPLs at the sub-regional level. The results reveal how corruption has not significantly affected Central and Southern African banks' NPLs but vice versa in West and Eastern Africa. The study concludes that NPLs are a dead weight loss to society. The results confirm how anti-corruption campaigns, improvements in judicial regulation, and sustained economic growth can help mitigate non-performing loans. Furthermore, policy implications such as enhancing institutional quality and implementing growth-sustaining measures have been suggested.

From “Papito Corazón” to Economic Hardship: An Intersectional Analysis of Child Support Debt among Low-Income Mothers in Chile

This study examines child support debt through an intersectional lens, focusing on its disproportionate impact on women and its unique implications within social relationships. Drawing from a 10-month longitudinal qualitative study with low-income mothers in Santiago, Chile, we challenge existing regulations governing child support provisions. We uncover discrepancies between judicial regulations and women's economic realities, revealing how current laws favor middle-class men. We explore the distinctions women make in delineating this debt relationship and the unique social dynamics involved. The research highlights how child support debt impacts women's identity construction and agency. By integrating intersectional analysis, the study underscores the complexity of child support debt, emphasizing the need to consider gender, class, and social context in understanding this phenomenon. Our findings suggest that current regulations fail to address the needs of low-income women, highlighting the importance of policy reforms to ensure equitable support.

An Empirical Study on the Judicial Regulation of Unfair Competition in Data Scraping Behavior

Currently, China's data-related legislation is still in the initial stage of gradual exploration. Due to the unfair competition disputes involving data capture with a variety of data types, complex technical means, capture behavior hidden and other characteristics, resulting in the judge in the trial of data capture cases mostly choose to apply the general provisions of the “Anti-Unfair Competition Law”, that is, the second article to be adjudicated, which makes the data capture behavior of the cases arising from the dispute is more and more, the data capture behavior whether it constitutes unfair competition, This has led to an increasing number of cases and disputes arising from data-scraping behavior. Therefore, this paper takes the data capture behavior as the research object, takes some typical cases as examples, discusses the adjudication results and thoughts of the cases, and in the process, finds that in the judicial practice of such dispute cases, there exists the difference of the applicable law, the judgment standard of the legitimacy of the data capture behavior is not clear, and the understanding of the damages caused by the unfair competition behavior of the data capture is not the same, and other problems. In view of this, in judicial practice, Article 2 and Article 12 should be clearly applied, and importance should be attached to the criteria for judging the legitimacy of data capture; finally, through the theory of balance of interests and the principle of proportionality, the interests of data platforms, consumer interests and public interests of the society involved in data capture should be taken into consideration, thus realizing the balance of interests of multiple parties, and achieving the balance between data protection and data flow through dynamic justice.

Implementasi Hukum Progresif oleh Polri dengan Pendekatan Restorative Justice untuk Mewujudkan Keadilan

Injustice arises as a result of previous judicial regulations. The Indonesia National Police's efforts to reduce this problem are guided by progressive law with a restorative justice approach to achieve justice. Restorative justice is a method of handling criminal behavior carried out jointly by perpetrators, victims, perpetrators' families, community leaders, religious leaders, traditional leaders, or other stakeholders, which focuses on restoring the original situation and achieving a just resolution through peace. It is hoped that the National Police can achieve substantive justice through proportional, professional and intellectual law enforcement that combines scientific and progressive investigative models. This research aims to analyze the Indonesian legal paradigm in terms of the concept of progressive law, the implementation of progressive law by the National Police through restorative justice and the crime resolution mechanism through restorative justice. Deductive writing is used to obtain a thorough and in-depth understanding of the problems discussed, with the type of research being normative juridical which is analytical descriptive.

Effects of stricter legislation on coercive measures in child and adolescent psychiatric care: a qualitative interview study with staff

BackgroundLegislators often want to positively affect psychiatric inpatient care and reduce coercion by a stricter judicial regulation. However, staff experiences and comprehension of such legal changes are largely unknown, yet essential in obtaining the intended outcomes. We examined staff understanding and implementation of a July 1, 2020 legal change in Sweden regarding the use of coercive measures (e.g., restraint, seclusion, and forced medication) in child and adolescent psychiatric inpatient care.MethodsDuring 2021, semi-structured interviews were conducted with nine child and adolescent psychiatric inpatient staff (nurses, senior consultants, and head of units). Interviews were transcribed verbatim and analysed using reflexive thematic analysis. We used an implementation outcomes framework to relate data to a wider implementation science context.ResultsThe legislative change was viewed as both positive and negative by participating staff. They reported mixed levels of preparedness for the legislative change, with substantial challenges during the immediate introduction, including insufficient preparations and lack of clear guidelines. A knowledge hierarchy was evident, affecting various professional roles differently. While the law was positively viewed for its child-centred approach, we found notable distrust in legislators’ understanding of the clinical reality, leading to practical difficulties in implementation. Care practices after the legal change varied, with some participants reporting little change in the use of coercive measures, while others noted a shift towards more seclusion and sedative medication usage. The work environment for consultants was described as more challenging due to increased bureaucratic procedures and a heightened pressure for accuracy.ConclusionsThe study highlights the complexities and challenges in implementing legislative changes in psychiatric care, where stricter legislation does not necessarily entail reduced use of coercion.

Actual Legal Relations: Issues of Individual Judicial Regulation

The category of legal relations in the domestic legal science is mainly considered in the spirit of the normative theory of law: the public attitude is subjected to the regularizing influence of the norms of law and turns into a legal relationship, the subjects of which are bound by subjective rights and legal obligations. However, in many cases, this scheme does not explain the specifics of the relationship that develops between the subjects, which is formed and actually exists, receiving a judicial assessment afterwards. The purpose of the study is to develop scientifically based knowledge about the formation, content and functioning of actual legal relations and the specific role of individual judicial regulation in this. The objectives of the study are to identify the features of actual legal relations, to determine the role of individual judicial regulation in their fixation, to study legal situations in which the formation of actual legal relations takes place. The work as a whole is based on the methodology of a scientifically based integrative understanding of law. The authors used methods of a general scientific nature (methods of formal logic, systemic, functional, historical methods) and private scientific methods of jurisprudence (formal legal, methods of interpretation of law). The law, represented by the norms and principles contained in the multilevel system of forms of national and international law, does not just recognize certain social relations as legal, it regulates legal relations. In a number of cases, at the time of the emergence of a legal relationship, there is no proper certainty in the very fact of its existence. For example, this is possible in case of overcoming gaps in legal contracts and acts, in case of “abuse of law”. The authors also highlight situations with the realization of legal interests, overcoming legal conflicts. Such legal relations are factual. The legal assessment of the legal relationship is given in the decisions of the law enforcement bodies, among which judicial acts play a central and decisive role. In the above cases, within the limits of individual judicial regulation, the fact of the existence of an actual legal relationship is revealed, as well as the scope of the rights and obligations of specific subjects in appropriate situations is determined.

Overview of Digital Technologies for Anti-corruption Purposes

The article was prepared within the framework of analysis of the results of the events dedicated to the 100th anniversary of the Institute of Legislation and Comparative Law under the Government of the Russian Federation. The article gives an overview of the possibilities of using digital technologies to counteract corruption. It is noted that a prerequisite for the successful realization of the benefits of digitalization of public practice is the availability of technological infrastructure, as well as improvement of the legal response associated with the implementation of technological policy. Anti-corruption practices related to Big Data processing (Big Data), distributed registers technology (blockchain), data mining technology (neural networks, artificial intelligence), crowdsourcing technology, and information technology that identifies corruption risks in the financial sector (Forensic Tools) are discussed in more detail. However, the realization of the potential of digitalization in this area implies the need to improve the legal response concerning the implementation of technological policies aimed at suppressing corruptive factors. In this regard, the role of individual judicial regulation as one of the ways to overcome legal gaps and conflicts increases.

An Empirical Study on the Judicial Regulation of Data Crawling Unfair Competition

In recent years, data crawling, as a new type of unfair competition on the Internet, has become a hot spot of concern in the theoretical and practical circles. This paper composes cases related to digital capture unfair behavior, and through the empirical analysis of typical cases, it is found that such cases present realistic problems in judicial practice such as blurred data ownership boundary, alienation of criteria for determining competitive relationship, non-uniform adjudication basis, and difficulty in determining the amount of damages; in this regard, this paper tries to put forward effective references from specifying the path of data regulation, clarifying the structure for determining competitive relationship, unifying the adjudication of unfair behavior, and clarifying the reference factors for damages. In this regard, this paper tries to put forward effective references from the aspects of specifying the path of data regulation, clarifying the structure of the determination of competition relationship, unifying the basis of improper conduct adjudication, and clarifying the reference factors of damages.

Implementation of the Provisions of International Acts on the Interrogation of Defense Witnesses in Court in Russian Law

Problem statement. The right to a fair trial within a reasonable time by an independent, impartial and competent court, in compliance with the fundamental principles of criminal proceedings established by international treaties and national legal acts, is pivotal in the legal status of the individual. As judicial practice shows, in criminal proceedings, the implementation of this right largely depends on individual judicial regulation when deciding on satisfaction/refusal to satisfy the request for questioning in court of a defense witness. The significance of the testimony of a witness confirming the defendant’s alibi or other circumstances testifying to his innocence or the presence of mitigating circumstances actualizes theoretical and applied (based on the analysis of judicial practice) studies devoted to the interrogation of a defense witness during the judicial investigation of a criminal case. Purpose of the work: to identify methodological and organizational and legal problems of summoning and questioning a witness at a court session, to determine the role and aisles of individual judicial regulation when making a decision on a petition for summoning a witness submitted by the defense party. Results. The importance of questioning a defense witness at a court hearing to ensure its publicity, immediacy and verbality is obvious. The interrogation also ensures the proper procedural regime of proof and the operation of the principles of adversarial, presumption of innocence and the right of the accused to defense. Recommendations and other provisions of judicial bodies regarding the summoning and interrogation of witnesses should be evaluated on the basis of the principles of justice enshrined in Russian law, while individual judicial regulation in resolving a specific petition for summoning a witness should be formed on the basis of recognition of the significance of the testimony of this participant, their possible impact on the outcome of the trial, and also provided, when necessary, technical capabilities of video conferencing and web conferencing.

Поджог как уголовное деяние в период складывания российского централизованного государства

The analysis of one of the most dangerous criminal offenses of the period of the formation of the Russian centralized state (the end of the XIII – beginning of the XVI centuries) – arson is carried out. Russian Russian legislation development slowdown in the Horde period was objective and did not contribute to the improvement of criminal law, laid down in the first legislative monuments of Ancient Russia – Russkaya Pravda and its derivatives. The formation of a Russian centralized state opens a new page in the development of domestic law. In the conditions of feudal fragmentation, a variety of legal regulation has developed, regional legal acts have appeared (Pskov, Dvinskaya and Belozersk court certificates). Centralization required the creation of uniform legal norms and laws, which was reflected in the Judicial Regulations of this period, the analysis of the provisions of which allows you to see of legal principles for cities and their absence for forests and fields. Attention is drawn to the increase in the number of arson attacks due to the social stratification and enslavement of peasants, who have chosen the form of struggle against feudal lords, the arson of their estates. Turning to the study of historical legal experience allows us to recreate a more complete and objective picture of the formation and development of Russian legislation, including such a phenomenon as arson.

The problems of judicial regulation of property and personal non-property rights of spouses during the dissolution of marriage in the Russian Federation

The problems of judicial regulation of property and personal non-property rights of spouses during the dissolution of marriage in the Russian Federation

The Court Online Content Moderation: A Constitutional Framework

This study aims to see and describe the practice of electronic justice in Indonesia based on the digital constitutionalism approach; as a concept that tends to be new, Digital Constitutionalism in its development also accommodates the due process online in scientific discourse. This research is normative legal research using a statutory and conceptual approach. Based on the research results, it is known that the practice of electronic justice in Indonesia still uses procedural law guidelines, which are conventional procedural law and internal judicial regulations. In contrast, the development of electronic justice that utilizes technological advances is insufficient to use conventional procedural law in its implementation because it is annulled. It has not been oriented to the protection of Human Rights as conceptualized in the Digital Constitutionalism discourse, which includes due process online. So the regulation of electronic justice in the future must be based on Digital Constitutionalism, which includes knowing the due process online by prioritizing the protection of human rights in a virtual scope from the provider of electronic judicial technology facilities.

ОСНОВНЫЕ ЭТАПЫ РАЗВИТИЯ НЕЗАВИСИМОЙ АДВОКАТУРЫ В РЕСПУБЛИКЕ КАЗАХСТАН И РЕСПУБЛИКЕ УЗБЕКИСТАН

In this article, the author considers the main stages of the evolutionary development of the institution of advocacy in the territories of modern Uzbekistan and Kazakhstan from the historical and legal positions. In particular, the stages of evolutionary development of the institution of advocacy are subdivided into four stages by the author, each of which is covered in detail in the context of the organizational and functional support of advocacy, the foundations of their legal status, and independence. During the preparation of the scientific work, some historical legal sources were comprehensively studied, including “Jet jargi”, “Judicial regulations”, etc. The author noted that each stage of development of the institution of advocacy in Kazakhstan and Uzbekistan has its own similar and distinctive features. Thus, the archaic period - the period of the development of the proto-advocacy, was, in general, of common nature for both studied countries, since it was characterized by the absence of institutional advocacy, the development of self-protective legal mechanisms, as well as the operation of common sources of law - odat (urf) and sharia. It is also noted that in general, despite the preservation of relative independence during the colonial period, on the territory of the Uzbek khanates, the sources and institutions of the Russian Empire were gradually introduced, which acted on the territory of modern Kazakhstan a little earlier. At the same time, the Soviet period of development of the legal profession was, in fact, the same for all the republics that were members of the Union, and only during the period of independence did the development of the legal profession in the studied countries take an independent path. The author presents the results of the study as theoretical conclusions.

Civil and criminal procedural approaches to the definition of individual judicial regulation

In legal science, such a direction of research as individual legal regulation has become widespread. On its basis, types are distinguished, including individual judicial regulation. This concept is of particular importance for criminal proceedings and its study can lead to new theoretically and practically significant results. Considering that the study of individual judicial regulation has been conducted for many years in the general theory of law, in civil law, the purpose of this work was to generalize their individual results (in terms of the main features of individual judicial regulation) and to develop the main directions of their application in the field of criminal proceedings. The object of the study was relations in the field of judicial criminal procedural activity. Methods of analysis, synthesis, generalization, comparative legal, formal legal, modeling were used in the study. The main results were expressed in the identification of knowledge useful for the science of the criminal process, obtained by scientists in the field of theory of law (V.V. Ershov, V.M. Gorshnev, S.S. Alekseev, etc.), civil law (V.V. Kulakov, A.D. Koretsky, V.V. Gruzdev, etc.) and determining their significance for conducting research of individual judicial regulation in criminal proceedings. The author's conclusion based on the results of the study is the need to develop scientific research in relation to individual judicial regulation in criminal proceedings as a potentially effective means of resolving criminal law conflicts, taking into account the developing trends of procedural contracts, agreements and other vectors that increase the level of individuality of decisions made by the court.

Signs of individual judicial regulation in criminal proceedings and its definition

Criminal proceedings are the sphere of mandatory regulation. However, its development and modern achievements of the entire legal science as a whole make it possible to make relevant clarifications to its content (legislation and activities). The purpose of the work is to identify the most significant features of individual judicial regulation in the field of criminal proceedings and offer them to the general scientific community for discussion. The main subject of this study was the theoretical concept of "individual judicial regulation" and its features in criminal proceedings. In criminal proceedings to date, such studies have been fragmentary, whereas in the theory of law, civil sciences, this area is represented by large-scale and fundamental works. It seems that the scale of the research and its long history should be realized not only in civil proceedings, civil and administrative law, but also in criminal proceedings. One of the first in this series should be the definition of the concept of "individual judicial regulation in criminal proceedings". In the course of the research, traditional scientific methodology was used: including general scientific methods (dialectics, analysis, synthesis, generalization, etc.), as well as private scientific methods - comparative legal and formal legal. The applied methods of scientific research allowed us to gain new knowledge concerning the essential features of individual judicial regulation and their use in defining this concept. The result was the author's definition of individual judicial regulation in criminal proceedings. The application of the results is possible in the field of ongoing scientific research, in terms of improving criminal procedure legislation and the practice of its application. The main conclusion of the author is the need to introduce the concept of individual judicial regulation into criminal proceedings at the level of its theoretical provisions and into the legislative framework.

The Balance of Rights and Legal Interests of the Employee and the Employer in the Regulation of Hidden Labor Relations

The article analyzes the issues of individual contractual and judicial regulation aimed at maintaining a balance of rights and legal interests of the employee and employer in hidden labor relations. The points of view of labor law specialists and judicial acts which use the concept “balance of interests” and “hidden labor relations” are analyzed and the scientific approaches based on the legal positivism as well as on the scientifically debatable concept of integrative legal understanding are criticized. From the position of scientifically grounded concept of integrative legal understanding the author’s conclusions and proposals are formulated. Including the conclusion that the balance of rights and legal interests of the employee and the employer is achieved by the legal and individual (contractual and judicial) regulation of hidden labor relations through the application of various forms of national and international labor law.

The Individual Judicial Regulation in Balancing the Rights and Legal Interests of the Employee and the Employer

The article analyzes the issues of individual judicial regulation aimed at maintaining the balance of rights and legal interests of the employee and the employer. The analysis of judicial acts, which use the concept of “balance of interests”, “balance of constitutional rights and legitimate interests” and criticize the scientific approaches based on legal positivism, as well as on the scientifically debatable concept of integrative legal understanding. From the position of scientifically grounded concept of integrative legal understanding the author’s conclusions and proposals are formulated. Including the conclusion that “the balance of rights and legal interests of the employee and the employer” is achieved by means of legal and individual (including individual judicial) regulation of labor legal relations through the application of various forms of national and international labor law.

The Criminal Law Regulation of Surrogacy Accessory Crime

Abstract With the continuous improvement of artificial reproduction technology, in vitro fertilization (IVF) or embryo transfer technology has developed rapidly. At the same time, the proportion of crimes related to surrogacy is also increasing. Surrogacy has different problems in judicial practice, laws and regulations, and theory. Specifically, it can be subdivided into: due to the lack of surrogacy regulation in current laws and regulations, there are related problems centered on surrogacy behavior. On the one hand, it often encounters bottlenecks due to the lack of legal support in judicial practice; On the other hand, at the theoretical level, because surrogacy involves the exclusive rights of life, such as physical rights and reproductive rights, this practical issue is controversial and has mixed opinions, which leads to the fault phenomenon in the application of this issue at the judicial level. Based on this situation, this paper starts from the practical level, enumerates the typical cases involving criminal acts in the process of surrogacy, and regulates them with the existing criminal law norms. Secondly, refine the characteristics and elements of surrogacy behavior in the above-mentioned practical level, think about this phenomenon, and redefine the concept of surrogacy based on the current social environment. Finally, on the basis of the above concept of surrogacy, return to the level of criminal law, take the dichotomy of surrogacy regulation as the guidance, and take the surrogacy institution as the main body of crime. It jointly explores the way to solve the black industrial chain of surrogacy.

Balance of Rights and Legal Interests of the Parties to the Employment Relationship

The article analyzes the categories of “balance of interests” and “balance of rights and legal interests” of the parties of labor legal relations. The analysis of points of view, in which the concept of “balance of interests” is used, criticizes the approach in which the category of “balance of interests” is disclosed on the basis of legal positivism and scientifically debatable concept of integrative legal understanding. From the position of scientifically grounded concept of integrative legal understanding the author»s conclusions and proposals are formulated. Including the conclusion that “the balance of rights and legal interests of the parties to labor relations” is a category realized through legal (law-making) and individual (contractual and judicial) regulation of employment legal relations.