Legal Research Articles

Beyond the blinders: Disclosing the episteme of land ownership to re-frame legal and economic values in planning

Among the values conceptualising and measuring planning processes and outcomes, two play a prominent role in liberal democracies: legal and economic. Current conceptions and practices framing these values face substantial challenges: civil law systems do not account for the variety of land use situations, increases in wealth inequalities, and human activities which threaten planetary boundaries. A way to tackle these challenges is to analyse the current theoretical discourse and legal norms framing values in planning, study alternative conceptions, and outline new responses. The present article investigates how a paradigm shift in planning theory may open new avenues for conceptualising legal and economic values. To do so, it first compares the episteme of land ownership defined by two theories applied to planning: law-and-economics and land master theory. Second, drawing upon the comparison, the article discusses how the strengths of each theory may contribute to filling the gaps of the others. Identified gaps are: the integration of political aspects into the analysis, the conceptualization of collective and use-specific forms of ownership, and methodological issues. These gaps mirror the western legal conception of land ownership, defined as individual and absolute. Fourth, based on collective and use-specific land management practices that develop within the western legal framework, and theoretical inputs from land master theory, the article puts forward a transduction of legal norms that foster a more sustainable conception of land ownership, known as land stewardship.

Legal Analysis of E-Commerce Transactions Based on the ITE Law and Consumer Protection Law in Indonesia

This research aims to find out how the legal position of the parties in the implementation of online arisan and to find out how legal protection for online arisan members who are harmed due to default. The research method used is normative research method. The purpose of this method is to identify legal principles, legal rules, and expert opinions to answer issues related to legal problems, such as the legality of online arisan agreements according to the Civil Code and legal protection for online arisan members in the event of default by one of the parties. From the research conducted, the author obtained the following results: First, the legal position in online arisan consists of the arisan owner as the first party, arisan members as the second party, and the admin or arisan assistant as the third party. If there is a default during the implementation of online arisan, the aggrieved party can choose to resolve the problem through family channels. If the family route is unsuccessful, then dispute resolution must be pursued through legal channels in court by submitting a subpoena. Although the online arisan agreement is unwritten, the agreement is still considered valid. Second, legal protection for online arisan members includes preventive and repressive legal protection. Preventive legal protection for online arisan members is regulated in Article 28 paragraph (1) of Law Number 19 of 2016 Concerning the Amendment to Law Number 11 of 2008, which regulates prohibited acts in electronic transactions, as well as Article 1320 and Article 1338 of the Civil Code, which regulates the provisions of the agreement so that it can be implemented properly. Meanwhile, repressive legal protection is regulated in Article 45 to Article 52 of Law Number 19 of 2016, which regulates sanctions for violation of provisions, as well as Article 1243 of the Civil Code, which discusses compensation due to default.

Analisis Yuridis Tindak Pidana Judi Offline dan Tindak Pidana Judi Online di Kota Kupang

In East Nusa Tenggara (NTT) there are various types of gambling, ranging from offline gambling to online gambling. In the city of Kupang itself there are various kinds of gambling, starting from offline gambling, namely, kuru-kuru or throwing dice, rolling ball, cockfighting or cockfighting and bingo, as well as online gambling which is usually called lottery gambling or white coupons. In short, gambling itself is the action of a person or a number of people in risking a certain amount of money or objects in order to seek profit and includes all kinds of bets in the form of money or objects, either directly or indirectly, such as online payments via online applications or existing online sites to facilitate transaction. This research uses normative legal research methods sourced from data obtained in the form of legal rules, legal principles and legal doctrines to answer the problems studied. The research results show that the occurrence of gambling in Indonesia to date is one of the factors caused by the weaknesses in the regulations regarding criminal acts of gambling offline and online so that gambling in Indonesia is still very widespread.

Christian perspectives on the regulation of posthumous medical data donation (PMDD): An empirical study

This article sets out the results of an empirical study exploring the intersection of religious views and perspectives and the regulation of post-mortem data donation (PMDD), particularly focusing on issues of consent and individual control. Through semi-structured interviews with practicing members of the Christian clergy of the United Kingdom, the study investigated the ethical and practical implications of integrating religious viewpoints into secular debates on data protection and privacy, using PMDD as a use case. The findings revealed a consensus among participants that religious perspectives, including Christian perspectives, can enhance the ethical robustness of PMDD regulatory frameworks by promoting values such as dignity, autonomy, and respect for individual preferences. However, the study also identified a possible gap in the systematic consideration of these views within existing regulatory practices pertaining to data protection and privacy. Pursuant to these findings, the article argues for the adoption of an "opt-out" consent mechanism, which balances public health benefits with individual rights, as a pragmatic approach to PMDD regulation. Additionally, the article highlights the potential for religious insights to enrich policy dialogues, ensuring that legal rules relating to data protection and information governance resonate with a broader array of societal values.

A Statutory Analysis of the Role of the Courts in Protecting Financial Consumers' Rights in the Zimbabwean Banking Sector: The Penelope Case in Context

Abstract The Zimbabwean banking sector has experienced several tumultuous challenges since 2000. This is owing chiefly to the political and economic challenges the country has experienced. Poorly conceived and ill-timed policies have also wreaked havoc in the Zimbabwean banking sector. Financial consumers have sometimes lost their savings to hyper-inflation or overnight policy changes in Zimbabwe. The change in currencies is a good example of how financial consumers have seen their deposits and savings at banks and other related financial institutions eroded to nothing. In 2018, the Reserve Bank of Zimbabwe (RBZ) issued a directive for all banks to convert all deposits made prior to October 2018 from the United States (US) dollar denomination to the Zimbabwean dollar (bond notes and coins). This was done on an exchange rate of one US dollar as to one Zimbabwean dollar, yet in reality, the local currency had been devalued. The RBZ directive left individuals and corporates reeling from exchange losses. The directive was akin to a heist and many people lost trust and confidence in the Zimbabwean banking sector. While many financial consumers suffered in silence, some decided to take their banks to court, demanding a reimbursement of their deposits in the currency in which they deposited or alternatively, the equivalent of the original deposit using the correct exchange rate. This article examines the role of the courts in upholding the rights of financial consumers in the Zimbabwean banking sector in the light of the Penelope case. It also discusses how the Zimbabwean courts could assist in preserving the sanctity of the bank-client relationship among banks and financial customers. In addition, the article explores the role of the courts in challenging unjust laws that affect financial consumers' investments in banks. The strengths and weaknesses of the Zimbabwean banking regulatory framework are further discussed to assess if it is robust enough to protect financial consumers. The article recommends that the courts should objectively set aside unjust laws in the interest of justice to enable banks and other financial institutions to honour their contractual obligations. Policymakers should not adopt poor policies that infringe upon financial consumers' rights. Keywords: Banking sector; consumer protection; financial consumer; deposits; exchange rate; courts.

Tolerance before Secularism: Models of Tolerance in Nineteenth-Century Arabic

By analyzing temporal language, this study investigates the intellectual origins and the conceptual history of three concepts of tolerance that emerged in the Arabic context towards the end of the 19th century. The first is a philosophical concept that has evolved within the philosophical-rational tradition and has connections to the Enlightenment and liberalism. The second is a theological concept that advocates for a harmonious interpretation of all monotheistic religions based on the assumption that all monotheistic scriptures are true. The third is a legal Islamic concept that aims to preserve the traditional imperial and hierarchical Islamic system while addressing contemporary concerns related to citizenship and political affiliation. Tolerance is frequently examined within the research framework on secularity and secularism. Before secularism emerged as a holistic doctrine in Arabic (ʿalmāniyya), discussions surrounding tolerance were closely linked to societal and political principles, including civil equality, freedom of conscience, and the neutrality of religion in the public domain.

The Concept of the Enterprise in the Algerian Competition Law (Between the Legal and Economic Concept)

In the context of competition law, the concept of an enterprise includes any entity engaged in economic activity, irrespective of the legal status of that entity and how it is financed. From this definition of the company, we can see its characteristics, which are essentially the economic activity of this entity on the one hand and its legal independence on the other. Any conduct in the market can only be considered if the undertaking concerned carries out an economic activity, i.e., an activity of production, distribution or import and export. It must also be independent of other companies in the same market. In other words, each company must be in a position to compete with the other to create perfect competition in the market. Therefore, competition law prohibits anti-competitive practices only if economic and independent entities commit them. Through this study, we will highlight the concept of the institution in competition law, whether from a legal or economic perspective, and we will learn about the conditions for applying competition rules to the institution as a key element in the market.

Practical Application of Almaslaha Mursala in Judicial Proceedings

This study investigates the application of Maslaha Mursala (public interest) within Islamic jurisprudence, specifically focusing on the Maliki school of thought. It explores how this principle, which allows for the use of public interest in legal decisions when textual evidence is lacking, has influenced various legal judgments. The research examines the traditional requirement of justice for admissibility of evidence in Islamic law, the permissibility of certain medical practices and surgical operations, and the flexibility in applying punishments and legal rules under extreme circumstances. It highlights the role of Maslaha in maintaining societal harmony and addressing contemporary issues while adhering to Islamic legal principles. The study also provides examples from Nigerian courts where Maslaha Mursala has been applied to adapt legal practices to modern needs. Overall, it underscores the adaptability of Islamic jurisprudence in addressing evolving societal challenges.

Legal Aspects of the Right to Freedom of Opinion in View of Jordan’s 2023 Cybercrime Law

This study highlights the legal aspects of the right to freedom of opinion in Jordan after the issuance of Jordan’s Cybercrime Law No. 17 of 2023. First, it discusses the concept of freedom of opinion in theory. Second, it highlights the protection of human rights and its impact on States. Third, it shows how States might limit the protection of freedom of opinion by criminalising cyber activities. This study relies on descriptive and analytical approaches to describe freedom of opinion and analyse its legal basis in accordance with national and international legal rules. It uses a case study of Jordan by analysing the Jordanian Cybercrime Law and its impact on the right to freedom of opinion. This study argues that Jordan’s 2023 Cybercrime Law imposes stricter penalties on perpetrators of acts classified as cybercrime, exceeds the general rules in the penal code, and expands the scope of crimes related to freedom of opinion. The study produces several recommendations, the most important of which is that restrictions on the freedom of cyber activities in Jordan must comply with international obligations and that there is a need to amend the Cybercrime Law to conform to these obligations

Implikasi Pengurangan Pemakaian Plastik Sekali Pakai Terhadap Volume Sampah di TPA Suwung

The waste problem in Indonesia is getting worse, including the problem of landfills in Bali getting full every day. The waste problem is not only a matter for the government, but also for the community. The use of single-use plastics is an important thing that must be considered to find the best solution. This research aims to find out the legal policies that can help overcome the waste problem in Indonesia in general and Bali in particular. Based on this, this research will discuss how the impact of reducing the use of single-use plastics on the environment, society and its relation to storage in Suwung landfill and how the government's efforts as a policy maker in overcoming the problem of single-use plastic waste in Suwung landfill. The research method used is an empirical legal research method that uses a fact-based approach and analyzes legal concepts through social problems. The results obtained from this research are that the reduction in the use of single-use plastics provides a solution to the waste problem at Suwung Landfill so that less waste enters and if the reduction in the use of single-use plastics is applied more widely, plastic waste generation can be minimized, and regulations made by the government emphasize solutions from various aspects of the waste problem. However, many people still violate the regulations in the field.

Penegakan Hukum Dalam Keterlambatan Pembayaran Pajak Kendaraan Bermotor Di Kabupaten Tabanan

The increase in population has led to a rapid increase in motor vehicle ownership. Motorized vehicles have become a basic necessity for some people. Ownership of motorized vehicles will be followed by obligations as taxpayers who must make tax payments. However, increasing the number of motor vehicle ownership does not necessarily increase public awareness to be obedient and aware of the obligation to pay taxes. This can lead to legal consequences for both the community and the government. This research aims to find out the regulation in the field of taxes responding to the lack of public awareness of tax payments. With the main problems that will be discussed in this study, namely 1) how is law enforcement in late payment of motor vehicle tax in Tabanan Regency, 2) What are the inhibiting factors in the enforcement of late payment of motor vehicle tax in Tabanan Regency. The research method used is an empirical research method, with a fact approach and legal concept analysis approach. The results of law enforcement in late payment of motor vehicle tax in Tabanan Regency are given a PKB notification letter given a notification letter of STNK validation and a late notice of tax payment, if it has not been replied to from the taxpayer, UPTD PPRD Bali Province in Tabanan Regency will impose penalties on taxpayers such as administrative penalties for interest / fines and inhibiting factors are the lack of awareness of taxpayers in paying motor vehicle taxes, transferring motorized vehicles without transferring names, vehicle owners moving residence.

Good decisions in an imperfect world: a human-focused approach to automated decision-making

ABSTRACT Legal rules are based on an imagined regulatory scene that contains presumptions about the reality a regulation addresses. Regarding automated decision-making (ADM), these include a belief in the ‘good human decision’ that is mirrored in the cautious approach in the GDPR. Yet the ‘good human decision’ defies psychological insight into human weaknesses in decision-making. Instead, it reflects a general unease about algorithmic decisions. Against this background I explore how algorithms become part of human relationships and whether the use of decision systems causes a conflict with human needs, values and the prevailing socio-legal framework. Inspired by the concept of Human-Centered AI, I then discuss how the law may address the apprehension towards decision systems. I outline a human-focused approach to regulating ADM that focuses on improving the practice of decision-making. The interaction between humans and machines is an essential part of the regulation. It must address socio-legal changes caused by decision systems both to integrate them into the existing value system and adapt the latter to changes brought forth by ADM. A human-focused approach thus connects the benefits of technology with human needs and societal values.

Penetapan Kuasa Asuh Terhadap Anak di Bawah Umur Pasca Perceraian: Analisis Putusan Pengadilan Agama Lubuk Pakam Nomor 0197/Pdt.G/2021/PA.Lpk

This article aims to investigate how the process of determining custody of children who have not yet reached the age of majority or who are not mumayyiz after divorce is in accordance with Indonesian laws and regulations, as well as how the law is applied in handling disputes related to this issue. This article applies a normative juridical research approach as an analytical tool to examine and interpret legal data contained in legislation, especially Law Number 1 of 1974 concerning Marriage and the Compilation of Islamic Law and Presidential Instruction No. 1 of 1991. The results of the article show that firstly, although the Law on Marriage does not specifically regulate the process of determining custody of children under the custody of children who have not reached the age of majority after divorce, this issue is regulated in detail in Article 105 and Article 156 Compilation of Islamic Law. Determination of child custody is based on considerations of morality, health, and the parents' ability to educate children, which aims to ensure the child's primary interests. Second, law enforcement in resolving disputes related to determining child custody is still not fully in line with current needs, so it is necessary to revise Law Number 1 of 1974 concerning Marriage and KHI to better meet current demands. The judge's considerations in determining custody are not only based on formal legal aspects of written legal rules, but can also be based on moral considerations, social values, including paying attention to environmental conditions, exploring the track records of both parents and the psychology of the children in the family at that time.

The Administrative Tribunal of the European Stability Mechanism: ESMAT at Ten

The Administrative Tribunal of the European Stability Mechanism (ESMAT) is an international administrative tribunal hearing appeals brought by current and former staff of the European Stability Mechanism (ESM), which is an international organization. Sitting in Luxembourg, though separate to the European Union (EU) and outside the EU legal order, the Tribunal has its own Statute and Rules of Procedure to supplement the ESM Treaty. As ESMAT reaches the age of ten, and having delivered its first judgments, this articles probes ESMAT’s legal design and rulings to-date to determine the credibility of the international administrative tribunal in providing redress, as an internal justice regime in a standalone international organization. It finds that despite the preadolescent age of ESMAT, it is a well-designed international tribunal, established by law, and can provide the necessary judicial remedies to parties where necessary, given its applicable law.

On some aspects of the WTO Jurisprudence and Dispute Settlement Mechanism

The paper first explores certain aspects of dispute resolution mechanism implemented within the World Trade Organization and then proceeds with the legal analysis of a number of legal presumptions, concepts and principles both of procedural and substantive legal nature developed and applicable within the framework of the above mentioned mechanism for resolving disputes between the WTO member-states. The Paper examines the main features that distinguish the dispute resolution mechanism used within the WTO from the GATT mechanism, which mechanism, i/e/ the one implemented within the WTO framework, is recognized to be more legal in nature in contrast to the more political nature of the GATT dispute resolution mechanism, given that under the GATT mechanism the direct negotiations had more weight in reaching the final settlement than within the WTO system, where formal juridical disciplines, as the practice of dispute settlement indicates, play far more role and has become a key element of the system. Also, certain procedural presumptions and principles applicable in the adjudication process as well as the procedure and feature characteristic for the enforcement of decisions are examined in the paper based on and with reference to the number of panel and Appellate Body decisions. Decisions delivered by panels and the Appelate Body represent a very important tool for the interpretation of the WTO law and shapes the practice of its implementation. In this regard, although it is not considered a formal source, Appelate Body and panel decisions should be considered as an important source of both procedural and substantive WTO law. The DSB practice established under the GATT/WTO law, on the one hand, defines a set of applicable procedural rules and on the other hand, develops the WTO substantive law by way of developing the criteria and rules governing the application of provisions of the WTO agreements and other sources governing rights and obligations of the member-states. Particular attention in this regard is paid to the peculiarities of the application of the principle of responsibility for lawful actions applied in the WTO jurisprudence, under the relevant WTO agreements and more specifically under the GATT, GATS, TRIPS and SCM Agreements. Also a number of procedural concepts the principles e.g. the “prima facie case”, “rational relationship” elaborated in the “Hormone” case, principle of multi-criteria assessment initially applied in «Korea - fresh, chilled and frozen meat» case and negative presumption rule applied by the panels are analysied.

Krivičnopravni značaj afektivnih stanja

The first part of this paper briefly explains the psychological nature of emotions and affective conditions. The second part of the paper deals with emotions in the general and the special part of the criminal law. In the context of motives out of which a crime is committed, emotions can have significance in sentencing. Special attention is dedicated to „base motives“, feelings of hatred and compassion, and to their significance in criminal law. The u7second, lengthier part of the paper is concerned with affective conditions in criminal law. The theoretical analysis of this matter encompasses the view on affective conditions as possible causes of a temporary mental disorder, which is a biological basis of unaccountability/significantly diminished accountability (art. 23 CC) and the legal concepts of the „heat of passion“ and „fright“ that generally correspond to the feeling of anger or the feeling of fear. This is connected to the legal concept of exceeding the limits of lawful defense (art. 19 par. 3 CC), as well as to the criminal offences of murder in a heat of passion (art. 115 CC) and severe bodily injury in a heat of passion (art. 121 par. 5 CC). Other criminal offences also include the affective conditions of the passive subject as a basic or supplemental element. The final, third part of the paper contains conclusions backed up with relevant arguments.

Inheritance Law as interpreted by the Supreme Court in Albania

Abstract In Albanian civil law, inheritance is established as a cornerstone institution within the legal framework. It arises upon the death of an individual and is categorized in two forms: legal inheritance and testamentary inheritance. This legal concept encompasses all state-issued norms that regulate property relations arising from an individual’s death and governs the transfer of assets from the de-cuius (the testator) to their heirs. This process confers civil rights and obligations upon the inheritors. Within civil law, inheritance pertains to property relations that commence posthumously, defined as “the lawful or testamentary transfer of the deceased’s property to one or more individuals in accordance with the provisions of the legal code.” The legal relationship of inheritance in Albania is contingent upon the death of the testator, marking a pivotal legal fact. This relationship is characterized by its dual nature: it encompasses both property and familial dimensions. The property aspect becomes manifest at the moment of the testator’s death, as their rights and real property are transferred to their heirs. Meanwhile, the familial dimension pertains to specific qualities required of heirs, such as blood relations, adoption, or marital status. A will has legal effect only at the moment of the testator’s death, when the inherited property automatically transfers to the heirs by operation of law. The death of the specified individual is essential for initiating these legal effects.

The Audi Spare‐Parts Case (CJEU): A closer look at critical opinions

AbstractThe present article is confined to the legal examination of the ‘critical opinions’ and the ‘misconceptions’ rendered or drawn with regard to a recent judgement of ‘Court of Justice of the European Union (CJEU)’ in a case, commonly known as ‘Audi Spare Parts Case’ (C‐334/22), whereby the CJEU has disallowed the use of a registered mark/sign (or a shape which is identical or similar to a registered mark/sign) on the spare parts of the car (or any complex product or machine for that matter) which interferes with the ‘essential functions’ of a mark/sign. The article summarily notes the involved facts and the legal context of the aforesaid case and then proceeds to analyse the congruity and the legal validity of the noted ‘critical opinions’, with the support of established legal principles, precedents, and statutory frameworks. The article also addresses and clarifies some misconceptions drawn with regard to the relevant legal concepts (of the Trade Marks Law), and concludes, in the wake of the findings of the legal analysis, that the Hon'ble Court has rightly upheld the intent and purport of ‘The Trade Marks Regulation’. At the end, the implications of the aforesaid judgement are also mentioned within a broader perspective, explaining their significance beyond the immediate context.

Regulasi Penegakan Hukum terhadap Pencemaran Air di Sungai Citarum, Jawa Barat

The principle of environmental insight is the principle of capital investment carried out while still paying attention to and prioritizing environmental protection and maintenance. The government in carrying out development must also pay attention to the ecosystem and the surrounding environment. The purpose of this study is to analyze and enforce the law on Citarum River pollution based on the Principle of Environmental Insight, which includes the principles of sustainability, community participation, and environmental responsibility. The method used in this study is normative juridical with qualitative analysis with the data produced in the form of secondary data obtained from previous studies, laws and regulations, and other sources. The results of the study are the Regulation on water pollution in Article 60 of the PPLH Law: "Everyone is prohibited from dumping waste and/or materials into environmental media without permission". Article 104 of the PPLH Law: "Anyone who dumps waste and/or materials into environmental media without permission as referred to in Article 60, shall be punished with imprisonment of a maximum of 3 (three) years and a maximum fine of Rp3,000,000,000.00 (three billion rupiah). Conclusion Law enforcement in environmental issues has been regulated in environmental laws and regulations. Environmental law is a legal rule for every management and protection of the environment. Suggestion The government needs to strengthen regulations related to the disposal of industrial and domestic waste into rivers. Strict and consistent law enforcement must be implemented to ensure that polluters receive appropriate sanctions. Routine inspections and firm action against violators will be important steps

The influence and consequence of contract discharge in China’s Civil Code

With the rapid development of the world economy, China is becoming a key player in global trade and investment processes. Developing and updating legal rules governing contractual relations plays an important role in ensuring transparency, stability, and fairness in the business environment. Thus, the main purpose of this study was to identify the existing problems in the laws governing the process of contract cancellation and to make recommendations to improve the relevant aspects. In the course of the research, the legal method and the method of comparison were applied. As a result, the main procedures and grounds provided by the Civil Code of the People’s Republic of China for the termination of contractual obligations were identified. It was learnt that parties can terminate a contract in case of material breach of the terms of the agreement, which includes default, exceeding deadlines or changing circumstances that significantly affect the performance of the contract. The study also identified specific challenges that actors face when terminating contracts. Such as the unpredictability of the legal consequences of excluding a party from a contractual relationship, which can pose serious economic risks. The impact of factors such as economic crises on the termination of contractual obligations was also emphasised in the findings of the study. An important conclusion was the need to improve the legislation in the field of contract termination. The results of the study can be used to improve the law on contract termination in China, which can be the basis for developing clearer and more adaptive rules, thereby reducing possible legal risks for the business community