Law Reform Research Articles

Permission for concentration of business entities as a component of the state competition policy

The article examines aspects of current Ukrainian legislation, including regulations of the Antimonopoly Committee of Ukraine on concentration of business entities. The author analyses and compares them, and as a result reveals the legal mechanisms of state control over concentration processes of business entities, which consist in granting permission or prohibition of concentration by the controlling authority. The cases in which concentration is subject to a thorough examination by the supervisory authority and can be carried out only with its consent, as well as cases in which such consent is not required, are considered. The article describes the procedure for business entities to apply to the Antimonopoly Committee of Ukraine with an application for a merger clearance, and also highlights the requirements that must be met by the applicant in such an application for its consideration by the supervisory authority. The article outlines the process of consideration of cases by the Antimonopoly Committee of Ukraine on granting permits to business entities for economic concentration. The rights and obligations of applicants, third parties, interested parties and the supervisory authority during the consideration of cases are described. The list of decisions made by the committee based on the results of consideration of applications, as well as the grounds for their adoption, is considered. The author clarifies the main principles of appealing against such decisions in court or by appealing to the Cabinet of Ministers of Ukraine. The author examines the criteria and types of liability for conducting concentration without obtaining a permit, as well as for providing false information to the controlling authority in the process of obtaining a permit for concentration actions. The article examines the positive and negative factors of the State’s competition policy and legal support for control over concentration processes. The author identifies specific aspects that may have a positive impact on the effective reform of Ukrainian competition law and, as a result, ensure that Ukraine pursues an effective competition policy in the field of control over economic concentrations, which will lead to the prosperity of competition as a driving force for economic and social progress.

Social Reintegration after the Implementation of Restorative Justice in the Indonesian Criminal Code

The current criminal code has been in force in Indonesia since 1918. Indonesia formulated criminal law reform in 1963 and in 2023, a law on the national criminal code was issued. The spirit of the Indonesian criminal code is reformative, progressive, and responsive to changes to the law. One of the strengths of criminal law is regulating criminal law from the perspective and achievement of justice to repair and restore the situation after the event and judicial process known as restorative justice. The desire to strengthen restorative justice programs takes a long time and is complicated. This research aims to analyze the development of the concept of social reintegration through the application of restorative justice in the criminal justice process. This research was conducted qualitatively using secondary data and doctrinal legal study methods. The results showed that changes in criminal law arrangements caused opinion differences since restorative programs are widely used as a substitute for traditional and retributive approaches. The application of restorative justice in national criminal law must be implemented. Social reintegration in the implementation of restorative justice as regulated in the Criminal Code can be successful through commitment and collaboration between the community, government and law enforcement officials

Judges, Out-Of-Court Rewards, and In-Court Behavior: Evidence From an Italian Legal Reform

We empirically assess how out-of-court monetary rewards influence related in-court judicial behavior. In Italy, before a legal reform, Council of State judges were chosen by big law firms to serve as arbitrators in out-of-court arbitrations involving big law firm clients. Drawing on case-level data on Council decisions and using a difference-in-differences approach, we establish three central findings. First, before the legal reform, and consistent with the argument that judges strove to compensate big law firms for afforded out-of-court earning opportunities, big law firms were more likely to win Council cases when those cases were presided over by judges with prior arbitration experience. Second, as a result of a 2010 announcement of an anticorruption law reform that banned judicial participation in arbitrations, big law firms’ winning prospects in Council cases presided by judges with prior arbitration experience decreased by 33.4 percentage points. Third, following the law’s enactment, the success rate of big law firms in these cases converged to the success rate of big law firms in analogous court cases presided by judges without prior arbitration experience. Our analysis provides evidence of the importance of extrinsic motives for judicial behavior.

Slovakia's departure from strong labor protection of employees as a consequence of the pandemic and the transposition of european directives

This scientific paper delves into the notable shift in Slovak labor law, which has departed from its historically strong emphasis on safeguarding the rights of employees, traditionally seen as the weaker party in labor relations. Until recently, this emphasis served as a substantial barrier against the globalizing and standardizing influences of employers. The paper identifies two key factors driving recent legislative "reforms" in Slovakia's labor regulation. These changes are rooted in the transposition of European labor law directives while also embracing a more liberal political perspective regarding the nature of labor relations. This shift involves moving away from rigid employee protection and adopting the concept of "increased flexibility" in employee work as a remedy for addressing the post-Covid-19 economic challenges. The previous emphasis on employee or employee representative involvement in defining working conditions, wages, and important employer decisions regarding work organization has shifted. This shift allows employers to act unilaterally, contingent on fulfilling new information obligations towards employees. However, the recent labor law reforms run counter to this historical legal tradition. Taking into account the wage levels in the Slovak Republic compared to the majority of other European Union member states, these reforms establish an unsettling level of labor law protection pro futuro of Slovak employees.

The Proprietary Consequences of Customary Marriages: Challenges in the New Regime(s)?

The law governing marriage in South Africa is in transition. There are currently two proposals to reform the proprietary consequences of marriages in South Africa, namely a Marriage Bill [B43-2023], and a South African Law Reform Commission Discussion Paper to review aspects of matrimonial property law. This article assesses the effectiveness of the proposed reform in addressing the current regulatory challenges related to the proprietary consequences of customary marriages. It argues that the piecemeal jurisprudential development of the law has not been effectively reconciled, and this must be addressed in any future reform. However, the Marriage Bill proposed by the Department of Home Affairs is not an answer. The Bill ignores customary notions of property and creates several conceptual difficulties such as potentially leaving customary law marriages without a matrimonial proprietary regime. The South African Law Reform's Discussion Paper, which reviews aspects of matrimonial property law, holds great promise because it proposes a change in the default matrimonial proprietary system and the exclusion of family property from the marital estate. The proposals must be reconciled and informed by living customary law practices to deliver the much-anticipated law reform.

Locating a queer regional imaginary through media framing of male same-sex criminalisation in Newcastle, Australia, post WWII to 1989

Media framing of the political, professional, and personal dynamics of criminal law in regional areas can illuminate the reach of arbitrary moral arguments used to criminalise marginalised populations. Drawing on analysis of media articles from post-Second World War up to 1989, this case study contextualises criminalisation processes of male same-sex offences in the regional New South Wales city of Newcastle. The cases and issues documented provide insight into the legal and social symbiosis between the regions and the metropole, and the role of place in defining regional identity. At the same time, they show a diversity of male same-sex sexual and gender expression often considered incongruous in an industrial centre that has signified the ‘raw masculinity’ of the Australian male. The case study emphasises the risks of cross-sectional analyses that can sever processes of criminalisation from stigma that persists beyond decriminalisation, and the integral role of social movements in achieving law reform.

Expert ignorance: the law and politics of rule of law reform

Expert ignorance: the law and politics of rule of law reform

“The Law is too Grey”: Liminal Legality and Moral Injury in Encounters with Drug Law Enforcement

Overdose mortality and the legitimacy crisis facing policing have propelled momentum for drug law reform. Yet, resulting reforms and associated protections are often functionally undermined by enforcement practices and the legal environment faced by people who use drugs. To explore this tension, we conducted a community-based study in Ontario, Canada. Our findings show that people's experiences of policing at overdose events reflect a legal regime characterized by their ambiguous legal status and uncertain protections. We argue that the resulting state of liminal legality is enacted in large part through police discretion and the uneven distribution of enforcement practices across spaces and populations; individuals compensate for this legal environment by mobilizing their knowledge of legal risks. Together, these expressions of law and drug enforcement generate substantial moral injury among people who use drugs.

THE WESTERN LEGAL SYSTEM IN INDONESIAN CRIMINAL PROCEDURAL LAW REFORM: A GLOBALIZATION AND LEGAL POLITICS PERSPECTIVE

In the field of law, the influence of globalization is reflected in the legal politics of procedural law reform, which is currently still in the form of legislation draft. This study aims to analyze the influence of globalization on the reform of Indonesian criminal procedural law in relation to national legal politics. This research is normative legal research, which focuses on studying library materials. Based on the results of a comprehensive study is known, the Draft Criminal Procedure Code includes a new system originating from the western legal system such as adversary system in court trial. Adopting the adversary system into the Draft Criminal Procedure Code is a very revolutionary legal political reform of the criminal procedural law. Various challenges will be faced along with the adoption of the new legal system. Changes in the legal culture of law bearers is also a key variable in the success or failure of a western legal system implementation. Although the concept of the Criminal Procedure Code is colored by the western legal system, it does not conflict with national legal politics because it reflects universal legal principles, namely equality.

Islamic Family Law Reform in Indonesia Through Supreme Court Circulars: A Maqasid Sharia Perspective

From 2012 to 2022, the Supreme Court of the Republic of Indonesia has issued ten new regulations through Supreme Court Circulars (SEMA) resulting from Plenary Chamber Meetings, which have produced 458 new legal rules. Among these new legal rules, 109 govern Islamic civil law, indicating that SEMAs represent another variation in the efforts to reform Islamic family law in Indonesia. This research aims to examine the existence and efforts of Islamic family law reform in Indonesia from the perspective of maqasid sharia according to contemporary scholars. This research uses a mixed-method approach, employing both statutory and conceptual approaches. Primary data sources consist of SEMAs from 2012 to 2022, and secondary data consist of legal regulations related to issues of Islamic family law, which are analyzed. The theory used for data analysis is the theory of maqasid sharia. The results of this research show that the reform of Islamic family law regulations in Indonesia through SEMAs from 2012 to 2022 is integrative with maqasid sharia. The regulations issued in SEMAs have fulfilled six aspects of maqasid sharia, namely: (a) aspects of faith, creed, and monotheism; (b) aspects of human nature and moral improvement; (c) aspects of common sense and legal contextualization; (d) aspects of human rights, freedom, equality, justice, and women's rights; (e) aspects of good order and civilization; (f) aspects of public interest (maslahah)

Crafting a Progressive Legal Landscape of Apostasy in Islamic Criminal Law Reform

This study aimed to examine the intricate process of reforming Islamic criminal law to establish a progressive legal system and ensure justice. An empirical approach was adopted with a specific emphasis on abolishing the penalty for apostasy. This qualitative study included in-depth interviews with members of the Fatwa Commission, lecturers, and students to explore viewpoints on crafting the reform of Islamic criminal law and abolishing the punishment for apostasy. Recent results of contemporary studies recommended the revision of Islamic criminal law to abolish the death penalty for apostasy. This perspective showed an effort to ensure consistency between Islamic legal concepts, universal human ideals, and evolving societal settings. This article contributes to the ongoing discourse on reforming Islamic criminal law, shedding light on the complexities involved and advocating for a more humane approach, particularly regarding apostasy. This research, it seeks to bridge the gap between theoretical discussions and practical implications, fostering a deeper understanding of the necessity for reform within Islamic jurisprudence. Through collaboration with stakeholders and continued academic inquiry, it is hoped that these efforts will pave the way for a legal framework that not only respects Islamic principles but also upholds universal human rights standards.

Criminal Law Reform of The Existence of Article 378 of The Criminal Code in Land Cases

There is the criminalization of handling land disputes in Indonesia, such as in the case of Decision No. 1154/Pid.B/2021/PN. JKT.SE, namely Ir. Burhanuddin, who owns land with justifiable rights in the form of a Certificate of Ownership as a defendant and sentenced to imprisonment for 3 (three years), shows the need for criminal law reform against the existence of article 378 of the Criminal Code. With the normative juridical research method of the statutory approach, the author finds that the Criminal Act of Fraud 378 of the Criminal Code in the perspective of the Indonesian Criminal Law is connected with land regulations, explaining that Fraud, according to article 378 of the Criminal Code anyone who uses fraud or a series of lies to make someone give something, blame him, or cancel a debt but according to the legal principle lexes specialist systematic derogate lex generalis. While juridically, both the Civil Code and the Basic Agrarian Law do not specifically regulate if there is an error fraud in the sale and purchase of land rights, the sanction given by law is to cancel the sale and purchase deed with a claim for compensation because fraud in the deed of sale and purchase of land rights is not a criminal/criminal act that should be threatened with criminal sanctions but becomes Depenalization. The legal considerations in Decision No. 1154/Pid.B/2021/PN. JKT. SEL, reviewed in the renewal of the Indonesian Criminal Law, that the elements of fraud in the Criminal Code, namely objective and subjective elements of a person, can only be considered to have committed a criminal act of fraud as mentioned in Article 378 of the Criminal Code if all aspects are met. In this case, the perpetrator can only be sentenced according to his actions. Article 378 of the Criminal Code stipulates that someone who commits fraud must deceive the victim in a certain way, but in this case, the Civil Code and the Basic Agrarian Law does not explicitly regulate if there is an error.

“To Lie Convincingly”: Legal Challenges at the Intersection of Diplomacy and Foreign Interference

This article explores some of the legal challenges that arise in resolving disputes between diplomatic functions in an environment characterised by a growing desire of states to prevent foreign states from interfering in their internal affairs. In exposing some of the tensions involving diplomatic interference, the article suggests that diplomatic interference can be whatever the receiving state wishes it to be. It also proposes that states who enact protections against foreign interference are inter alia, perhaps unintentionally, closing the gaps between international and domestic law when it comes to what it means to “interfere” in a state’s internal affairs. The article closes by examining some law reforms that could be adopted by states to ensure that their legal regimes appropriately limit the risks of foreign interference and promote greater compliance by diplomatic staff.

Population Checks and Natural Laws: Malthus, Climate Determinism and Emigration

Through the lens of emergent laws of climatology developed to advance the scientific foundations and popular reach of practical meteorology in the nineteenth century, this article examines the checks on population and the global movement of people linked to reoccurring climate patterns and abnormal climatic events. Meteorological research contributed to debates within political economy and the public health movement, and to the disputed moral rationale for poor law reform. Scientific authority for this new analysis rested on a network of personal, religious, and professional links between T.R. Malthus, Thomas Chalmers, Francis Jeffrey, David Brewster, James D. Forbes, James Stark, Edwin Chadwick and William Pulteney Alison. The work of climate determinists argued that several causations were simultaneously affecting the nation’s vital statistics. The potential advantage to health from moving on a permanent basis to a more salubrious climate was explored. Adding further to the conundrum of colonisation, and the case for assisted migration, the laws of climatology offered reasons why any migrants pulled into parts of urban and Highland Scotland by freed resource – the vacuum effect – would still experience a positive Malthusian check on their life chances.

Criminal Law Policy (Penal Policy) in the Formulation of Criminal Sanctions Against Narcotics Crimes in Indonesia

To overcome the problem of drug crimes, it is necessary to have a criminal law policy (penal policy). This policy must be concentrated on two things, the first is aimed at applicable policies, namely policies on how to apply the criminal law laws and regulations currently in force in order to deal with drug problems and the second is formulative policies or policies that lead to reform of criminal law (penal law reform) namely policies on how to formulate criminal law legislation which is also related to the concept of the new Criminal Code (KUHP), especially in the context of tackling drug crimes in the future. This research uses a descriptive analysis methodology with a normative juridical approach with secondary data sources. It is hoped that the results of this research will be able to provide answers regarding the most appropriate form of sanctions to be applied to perpetrators of drug crimes. The policy of formulating criminal sanctions according to the drug law in the future for perpetrators of drug crimes in Indonesia is in line with the general provisions contained in the National Criminal Code (KUHP) Concept and in accordance with the decision of the Constitutional Court regarding the death penalty provisions, taking into account: The death penalty is no longer a crime. principal, but as a special and alternative punishment, the death penalty can be imposed with a probationary period of ten years which, if the convict behaves commendably, can be changed to life imprisonment or 20 years g. The death penalty cannot be imposed on children who are not yet adults. The execution of the death penalty against pregnant women and someone who is mentally ill is postponed until the pregnant woman gives birth and the mentally ill convict recovers.

Implementation of Community Service Order Based on Law Number 1 of 2023 In The Perspective of Justice And Legal Expediency

This research is related to the reform of criminal law in Indonesia through community service order as an alternative to imprisonment. The type of research used in this study is normative legal research. The specifications used in this legal research are descriptive analytical, with a statute approach and a conceptual approach. The types of legal materials used in this research are primary and secondary legal materials. The method of collecting legal materials used by the author in this research is literature study. The method of legal material analysis conducted in this research uses qualitative analysis. The results of this research show that based on Law Number 1 of 2023 concerning the Criminal Code (KUHP), community service order is one of the main types of penalties that also serves as an alternative to short-term imprisonment, specifically for criminal offenses with a potential penalty of less than five years and where the judge imposes a maximum prison sentence of 6 (six) months. It also serves as a substitute for fines that do not exceed category II. This is an implementation of community service order to achieve the objectives of punishment and with the perspectives of justice and legal expediency.

RENEWAL OF ATTORNEY GENERAL REGULATION NUMBER 15 OF 2020 CONCERNING TERMINATION OF PROSECUTION BASED ON RESTORATIVE JUSTICE IN CORRUPTION CASES THAT PRIORITIZE SAVING STATE LOSSES

The current handling of corruption cases emphasizes punishing the perpetrators and recovering state financial losses caused by corruption. Since 2010, the Attorney General's Office has issued internal regulations for resolving corruption cases through a restorative justice approach. These internal regulations allow for the resolution of corruption cases in a non-punitive manner that prioritizes the saving of state losses. The problems were addressed: (1) what is the possibility of resolving corruption cases prioritizing saving state losses through the renewal of Attorney General Regulation Number 15 of 2020 concerning the Termination of Prosecution Based on Restorative Justice? (2) What is the influence and obstacle if Attorney General Regulation Number 15 of 2020 concerning Termination of Prosecution Based on Restorative Justice is applied to Corruption Cases? The type of research used in this thesis was normative legal research. The research results show that: (1) Theoretically and juridically, the concept of restorative justice in corruption cases could be implemented to realize one of the objectives of punishment, which provided a deterrent effect and maximized the return/safety of state losses oriented toward the national economy and were in line with the ultimum remidium principle which could streamline the implementation of the principles of simple, fast and low-cost justice. (2) The factor that influenced and obstructed when Attorney General Regulation Number 15 of 2020 concerning Termination of Prosecution Based on Restorative Justice was applied to Corruption Cases was that the process of termination of prosecution based on restorative justice in Attorney General Regulation No. 15 of 2020 did not specifically explain the termination of prosecution in corruption cases. Keywords: Law Reform, Corruption, Restorative Justice, State Losses

Mapping the Bounds for Integration of Blockchain Titles in a Torrens System

As land becomes increasingly expensive in Australia fewer people can afford it, with consequences for wealth distribution and housing. Real estate, in particular the family home, has formed a foundation for Australians’ wealth over many decades, but the possibility of home ownership has been deteriorating in recent years. Alternative proposals for property investment include issuing fractions of land title on blockchain with parallel registration in the land registry. While such proposals are technically feasible, they are silent as to the means of integrating the blockchain ledger with the land administration system. As the land administration system comprises multiple statutory processes, this article uses the Queensland system as a case study, to analyse the relevant statutes in terms of the integration of a fractionalised blockchain titles system. The aim is to identify the law reform necessary to achieve a high level of integration of fractionalised land titles on a blockchain, within an existing land administration system — without detracting from the policy goals of that system.

The Dynamics of Family Law in Indonesia: Bibliometric Analysis of Past and Future Trends

Family law is a branch of law that regulates relationships and interactions between family members. Because underlying family law are a number of factors that reflect the complexity and diversity of societies as well as different cultural values throughout the world. This research aims to carry out an indepth analysis of certain aspects of family law, such as regulations on marriage, divorce, child custody or family inheritance. This analysis can include a study of legal developments, comparisons with other legal systems, and evaluation of the effectiveness of implementing regulations, then understanding how social changes and changes in values in society affect family law. The method used is bibliometric analysis with a systematic literature review approach, there are 72 documents originating from Scopus metadata. Family law publications have increased from year to year over a period of 20 years, in 2011 there were 39 publications regarding family law, then they fell again in line with little attention to aspects of family law, from 2015 to the peak in 2020 there were 77 publications which has been published. Factors that cause this are due to social change, technological progress, and the evolution of societal values, social change. Increased awareness of individual rights, especially the rights of women and children, has encourage interest in change and reform of family law and Globalization brings new ideas and cultural influences that can influence the way family law is viewed. Research findings may have limitations in terms of applicability or relevance if laws or policies change. Family law is subject to continuous change and adaptation, particularly in response to changes in society and values. Research may not always be able to capture or respond quickly to changes.

Deconstructing the Laissez-Faire Legend: A Critical Analysis of the 1834 Poor Law Reform and Its Legacy

This research paper critically examines the 1834 Poor Law Reform in Britain, a seminal event that is often heralded as a triumph of laissez-faire economics. The study delves into the historical context of the Old Poor Law system, established in 1601, which mandated legal support for individuals unable to sustain themselves. The paper scrutinizes the perceived problems of the Old Poor Law and the subsequent radical reforms introduced by the New Poor Law. It challenges the conventional narrative that the Poor Law Reform was a necessary corrective to an inefficient and market-distorting welfare system. Through a detailed analysis of the Poor Law Commission Report of 1834 and its criticisms, the paper reveals significant gaps in the arguments presented. The study also considers the impact of the Industrial Revolution, the Napoleonic Wars, and the gold standard restoration on the Old Poor Law system, arguing that these external factors played a crucial role in shaping the economic and social landscape of the time. This study offers insights into the complexities of policy marking and the interplay of economic theories and social needs. It underscores the enduring impact of historical decisions on contemporary economic and political dynamics and challenges the notion of post-WWII liberal order as a perpetuation of the laissez-faire myth.