Legal Imperatives Research Articles

Navigating digital financial exclusion: legal imperatives for disabled people in China

This paper examines the barriers hindering access to digital financial services for individuals with disabilities in China and proposes strategies to address these challenges. Despite rapid growth in inclusive digital finance, practical experience reveals uneven coverage, leading to digital exclusion and discriminatory practices. Barriers include limited access to digital infrastructure, standardised financial products neglecting diverse needs, and insufficient financial education. Moreover, legal safeguards exhibit notable deficiencies, lacking the incorporation of accessibility requirements and effective enforcement mechanisms. Therefore, strengthening legislative, enforcement, and judicial safeguards is essential. Proposed measures include integrating accessibility provisions into financial laws, developing tailored regulatory mechanisms, and enhancing judicial interpretations. These efforts will improve accessibility and foster a digitally enriched quality of life for individuals with disabilities in China.

Urban equilibrium: legal imperatives for sustainable development and habitat preservation in Shenzhen, China

Shenzhen, a bustling metropolis in China, is currently grappling with the delicate balance between urban expansion and environmental preservation. This study finds that the disintegration of habitats due to urban development in Shenzhen city significantly impacts the ecosystem of animals and plants, detrimentally altering their living conditions. The study results reveal that the expansion of construction land in China has surged by an impressive 84.39% between 2000 and 2020, which has come at the cost of diminishing wetlands, farmland, and woodlands by 57.24%, 16.58%, and 1.86%, respectively. Between 1980–2020, the urban expanse of Shenzhen expanded dramatically, growing from 16.0 square kilometres to 850.2 square kilometres. This transformation was primarily driven by the rapid conversion of forested areas, which saw a staggering decrease of approximately 300% to 780 km2 by 2020. Additionally, half of Shenzhen’s expansion can be attributed to the transformation of agricultural land, with an additional 40% stemming from the clearing of forests and approximately 9% resulting from the decrease in water resources. Furthermore, non-urban green spaces, particularly built-up areas, have significantly expanded, now encompassing approximately 60% of the city in 2018. Therefore, based on the existing literature and authoritative legal texts, this study aims to examine the legal frameworks of the Shenzhen government and, along with China’s national legislation, to make room for wildlife and biodiversity conservation in a metropolis like Shenzhen.

Protecting cancer survivors from financial discrimination throughout the EU: A cross-European perspective

This article provides an overview of the High-Level Conference on Ending Financial Discrimination Against Cancer Survivors held on the 15th of February 2024, in Brussels, Belgium. Organised under the auspices of the Belgian Presidency of the European Council and led by the European Initiative on Ending Discrimination Against Cancer Survivors, the focus was the "right to be forgotten" (RTBF), which seeks to prevent financial discrimination against former cancer patients by ensuring their medical history is not considered by insurers and lenders 5 years after the end of treatment and without recurrence of the disease. Through detailed discussions and poignant testimonies, the conference shed light on the profound impact of financial discrimination on cancer survivors' lives and the moral and legal imperatives to address it. The article concludes with recommendations for advancing RTBF legislation at both national and European levels, emphasising the importance of political will, medical research, and strong advocacy from the cancer community.

POLITICAL DEMOCRACY AND JUDICIAL VALUES: A PHILOSOPHICAL APPROACH TO JUSTICE AND DEMOCRACY THROUGH LEGAL PHILOSOPHY

This research analyzes the political democracy that is based on the fourth principle of Pancasila and the legal value from the perspective of legal philosophy. Legal philosophy research is directed at understanding the moral and legal imperatives contained in the concept of political democracy according to the fourth principle of Pancasila. This research uses a doctrinal legal method with a theoretical approach to find the conceptual basis of legal principles and examine the cumulative effect of various rules and procedures in a particular area of activity. There are two important points produced from this research, which are (1) the judicial values of political democracy in the fourth principle of Pancasila are closely related to Soekarno’s perception of Pancasila as the ideology of Indonesian people, which prioritizes harmonious life in diversity; (2) there are four main values in political democracy in the fourth principle of Pancasila, such as (a) democracy must be based on morals, (b) power must be used for the welfare of the people, (c) elections must be held with ethics and good manners, and (d) decisions must be reached through deliberation and consensus for the common good.

Правовое решение: понятие и функции

The article is devoted to the substantiation of the fact that the understanding of legal decisions as acts emanating from state-power subjects, creating legal norms or specifying the content of the rights and obligations of participants in legal relations, is unjustifiably narrow. It is proposed to consider a legal decision as a means of presenting legal requirements that reflect the subject’s ideas about fair and expedient, expressing his legal choice and justified by a reference to generally binding legal imperatives or his own subjective law. The author pays special attention to the analysis of the signs of legal decisions and their functions.

Enhancing midwives' occupational well-being: Lessons from New Zealand's COVID-19 experience.

The World Health Organization posits that adequate maternity health is possible if midwives are supported, respected, protected, motivated, and equipped to work safely and optimally within interdisciplinary health care teams. Based on qualitative survey data, we argue that the COVID-19 pandemic amplified job demands and resources, professional invisibility, and gender norms to negatively impact midwives' well-being. We aim to develop a refined understanding of the antecedents of well-being in midwifery to equip policymakers, administrators, and professional associations with the knowledge to enhance midwives' well-being postpandemic. Drawing on the Job Demands-Resources model, we thematically analyzed qualitative survey data ( N = 215) from New Zealand midwives to reveal how job demands, resources, and structural factors impacted midwives' well-being. We identified fear of contracting and spreading COVID-19, financial and legal imperatives (job demands), work-related hypervigilance, sense of professional duty, practical and social support, and appreciation and recognition (job resources) as key antecedents of midwives' well-being. These job demands and resources were influenced by professional invisibility and gender norms. Policy and practice solutions must address job demands, resources, and structural factors to meaningfully enhance midwives' well-being postpandemic. We recommend that policymakers, administrators, and professional associations monitor for signs of overcommitment and perfectionistic strivings and then take appropriate remedial action. We also suggest that midwives receive equitable pay, sick leave, and other related benefits.

Legal Imperatives In Combatting Money Laundering: Enhancing Enforcement Mechanisms Through International Cooperation

Legal Imperatives In Combatting Money Laundering: Enhancing Enforcement Mechanisms Through International Cooperation

Learning from failure in ‘an Integral Part’ of EU Law: interpretation of international treaties in the CJEU

AbstractThe Court of Justice of the European Union has been criticised increasingly for its approach to international law. While much literature focuses on reluctance to apply international law (ie refusing direct effect), this criticism also includes interpretation, arguably a more contentious area. The Court interprets international treaties through either the Vienna Convention or its own teleological method, with the latter increasingly applied. The legitimacy of applying localised methods of interpretation to international treaty law is debated in scholarship. Whether the Court’s case law applying international law is Völkerrechtsfreundlichkeit (friendliness to international law) is the focus of most contributions in this area. This Article seeks to move beyond that debate by demonstrating the Court should in all instances seek to achieve the legal imperatives of certainty and justice. It is explained that justice divides into ‘thin’ and ‘thick’ forms. Whilst ‘thin’ justice is widely accepted and amounts to treating like cases alike, substantive (‘thick’ justice) outcomes are inherently debatable. The Article proves the Court is failing to clearly distinguish cases (‘thin’ justice) and that case law is uncertain. There are also significant questions concerning ‘thick’ justice. The Court has been subject to criticism for substantive outcomes in this area, with the Commission and Council even seeking to limit its role. With case law that is uncertain and appears unjust it is argued that there is failure in this ‘integral part of EU law.’ The Court is now under increased pressure, and it is uncertain how it will respond. There are certainly cautionary lessons to be learned concerning the importance of paying proper attention to justice and certainty for EU law as a whole, and beyond.

PARADOX OF STATE OF LAW IDEA ON PANCASILA PHILOSOPHICAL JUSTIFICATION AS SOURCES OF LAW


 
 
 
 The state of law idea formulated in the provisions of Article 1 paragraph (3) of the 1945 Constitution of the Republic of Indonesia is a formulation containing normative statement that is still dubious and seems convincing. Embedding the nature of legality in the context of the idea of the rule of law through the statement that Pancasila is the source of legal norms need to be questioned. The idea of Pancasila is impossible to realize if it does not materialize into a living reality, not a dead one. The possibility if Pancasila is used as sources of law it will expand coercive actions and choices of legal imperatives. Pancasila must be able transforming and making itself relevant in midst of the challenges of social changes. The construction of the idea of a rule of law should not depend on absolute and certainty. It must be able to be created as a discursive space that is truly interpretive and not limitative. Pancasila is existed and recognized in the constitutional adjudication with presuppositions to explain the rationalization of legal reality. It must be carried out at the level of the goal for obtaining and achieving justice. The problem of the paradox of the rule of law idea can be raised through legal interpretations that are able to find a relationship between what should be normative and what is factual. Judges must be able to voice more than what is stated in the law and what is said by the law.
 
 
 
 

Legal Imperatives and Regulatory Mechanisms for Sustainable Energy Development: A Comparative Analysis of Renewable Energy Policies in Australia and China

This thesis conducts a critical examination of the legal frameworks and regulatory mechanisms governing the renewable energy sector, focusing on the alignment of policies and incentives with sustainable industry development internationally. It compares Australia's and China's approaches to renewable energy legislation, highlighting Australia's heavy reliance on fossil fuels and China's pioneering legal measures. Australia's Renewable Energy Target (RET), Small-scale Renewable Energy Scheme (SRES), and the Clean Energy Finance Corporation (CEFC) are evaluated, along with state-level initiatives. China's Renewable Energy Law (REL), Wind Power Concession Program, and the Mid-and Long-term Development Plan for Renewable Energy (MLDP) reflect its strategic legal positioning. The comparative analysis elucidates fiscal strategies, investment mechanisms, and grid integration issues, revealing differing approaches to government intervention and market-driven solutions. The thesis proposes enhancements to Australia's policy framework, emphasizing the need for grid modernization, intergovernmental coordination, investment in domestic manufacturing, and legal reform to ensure a robust, sustainable, and self-sufficient renewable energy sector.

Evolution of ethical norms as an element of biopolitics

As a set of legal norms and social institutions, biopolitics did not always imply the dominance of ethical principles as its own basic element. Based on the comparative analysis of the history of the formation of legal approaches to the content of biopolitics in the period of its emergence, the author comes to the conclusion about the transformation of the concept of biopolitics in the XXI century, associated with the inclusion of a basic ethical component in it. Regulation of relations based on a combination of formal legal imperatives and dispositions with ethical institutions generates not only standards of behavior of their participants, conforming to the autonomy of the will with the presumptions of reasonableness and good faith, but also formulates requirements for representatives of the legislative branch aimed at the inadmissibility of the adoption of legislative acts with a non-legal nature, since any future attempts to comply with them are illegal in themselves.

The essence of the institute for the protection of cultural values in the aspect of armed conflicts

This article examines and analyzes the issue of the essence of the institution of protection of cultural values in international law in the aspect of armed conflicts. It is said that the situation with cultural heritage in the 21st century is extremely difficult due to the spread of armed conflicts and wars, which forces scientists from all over the world, as well as Ukrainian researchers, to regularly study this problem and find out new and relevant aspects based on the latest events in the country .
 It is emphasized that the full-scale invasion of Russian troops into Ukraine, which took place on February 24, 2022, can also be considered a war against culture, since the occupiers pay special attention to the cultural heritage of Ukraine. It is noted that one of the most important international treaties regulating the protection of cultural values in the event of an armed conflict is the Hague Convention of 1954.
 In conclusion, it is stated that the protection of cultural heritage during armed conflicts is becoming more and more relevant and important in our time, and this is confirmed by recent events. This mission is contemporary and supported by moral, strategic and legal imperatives. Modern theory and practice agree that the international community has a fundamental interest in the protection of cultural heritage, which must be guaranteed by all means, even in times of war.
 For this, it is important to use the most significant doctrines of international law and universalize the norms of customary law, which prohibit attacks and destruction of cultural values, and include them in the body of the main international legal documents. These norms establish erga omnes obligations, which equalize all members of the international community in their rights and responsibilities.

The Rule of Rescue in the Era of Precision Medicine, HLA Eplet Matching, and Organ Allocation

Precision medicine can put clinicians in a position where they must act more as resource allocators than their traditional role as patient advocates. In the allocation of transplantable organs and tissues, the use of eplet matching will enhance precision medicine but, in doing so, generate a tension with the present reliance on rule of rescue and justice-based factors for allocations. Matching donor and recipient human leukocyte antigens (HLA) is shown to benefit virtually all types of solid organ transplants yet, until recently, HLA-matching has not been practical and was shown to contribute to ethnic/racial disparities in organ allocation. Recent advances using eplets from the HLA molecule has renewed the promise of such matching for predicting patient outcomes. The rule of rescue in organ allocation reflects a combination of ethical, policy, and legal imperatives. However, the rule of rescue can impede the allocation strategies adopted by professional medical associations and the optimal use of scarce transplant resources. While eplet-matching seeks to improve outcomes, it may potentially frustrate current ethics-motivated initiatives, established patient-practitioner relationships, and functional conventions in the allocation of medical resources such as organ and tissue transplants. Eplet-matching allocation schemes need to be carefully and collaboratively designed with clear, fair and equitable guidelines that complement functional conventions and maintain public trust.

Правові імперативи толерантизації суспільних відносин

The article defines the legal imperatives of tolerance of social relations. The problem of tolerance is connected with a number of fundamental philosophical and worldview questions that affect the understanding of man, his identity, civic position, the possibilities and limits of nation- and state-building, the democratization of social life, the dialogue of cultures and civilizations, and the search for a "sophia" discourse of tolerance. It was noted that tolerance is one of the values that is usually associated with the European style of legal thinking. Tolerance is not just a value that is given a legal meaning (that is, an end value), but a value that is legal in its content (that is, a means value). It is concluded that the tolerance of social relations is inextricably linked with the application of law, the forms of its implementation, the implementation of legal activities, as well as ensuring the rights and legitimate interests of a person. Ideally, the entire legal system should be based on tolerance, serve as a means of its expression, consolidation, protection and protection. Being introduced into the practice of implementing the current law, tolerance acquires legal features that determine its official level. Ukraine's aspiration to join international organizations should be based on the recognition of the main international legal documents, which enshrine the principle of tolerance.

Legal Imperatives for Decongesting Correctional Centres in Nigeria: A Review of Recent Legislative Measures

One of the major drawbacks in the Nigerian criminal justice system is the congestions in correctional centres. Custodial centres are not only the pivot on which the wheel of criminal justice revolves. They are also institutions which provide homes for a technical segment of the society and protection for the general public. Having regard to modern objectives of correctional services, it has become more paramount for custodial or correctional centres to indeed provide platform not only for housing inmates but more importantly as an opportunity to rehabilitate, remould and make lives of inmates more useful whether during custody or after their release. Unfortunately, these objectives are very difficult to realize in Nigeria as a result of several factors accounting for the congestion of Nigerian prisons. It was in the light of this that certain critical legislations were enacted i.e. the Administration of Criminal Justice Act (ACJA) 2015, the Police Act 2020, and the Nigerian Correctional Service Act, 2019 to deliberately arrest some of the major factors which are responsible for why custodial centres have always been overstretched beyond official capacity. Though the ACJA and others were overwhelmingly received with approval by all, it is observed that there is gross lack of will on the part of the government and other stakeholders in the criminal justice sector to fully adhere to and implement the provisions of the laws. The government is urged to increase efforts in empowering relevant and critical stakeholders like the police, the courts and the correctional centres in implementing the laudable objectives of the ACJA and other relevant legislations for a purposeful criminal justice delivery.

SMALL BUSINESS AND THE CHANGING ENVIRONMENTAL ETHOS

There is increasing awareness globally of the importance of conserving the environment. The environmental ethos is changing and industries are under increasing pressure to reduce the negative impact of their operations on the environment. Such negative impact includes, for example, the consequences of non-compliance with safety standards; harm to the general well-being of both employee and community; pollution from production processes; and the risks associated with the disposal of waste material.Traditionally, South African environmental law has had little influence on long-term strategic industrial decision-making and the response of many industries to environmental law has been re-active rather than proactive. In the past, businesses, large and small, have not been too perturbed by environmental laws, mainly because penalties for environmental damage were not enough to deter potential offenders and environmental legislation was weakly enforced.Businesses therefore often opted to ignore environmental issues and would merely pay fines if and when these were imposed. This was seen to make sound business sense as it was less costly to pay the fine than to take the prescribed preventative measure. Furthermore, concern about the impact of industries on the environment was generally directed at large corporations and environmental laws were, therefore, mainly enforced against such large companies. As a result, small businesses especially could afford to ignore environmental management completely. These small, medium and micro-enterprises (SMMEs) are defined as separate and distinct business entities, together with their branches or subsidiaries, if any, and include co-operative enterprises. In terms of the statutory definition they are managed by one or more owner, and predominantly carried on in any specified sector or sub-sector of the economy in accordance with the Standard Industrial Classification, for example, the mining and construction sectors. Enterprises are classified as micro-, very small, small, or medium enterprises in accordance with the following criteria: total full-time equivalent of paid employees, total annual turnover and total gross asset value.Similarly the industrial hives in which micro- and small enterprises operated, established by the Small Business Development Corporation, were legally exempt from complying with certain legal provisions relating to the environment, for example, regulations concerning hazardous chemical substances.However, for various reasons, the environmental ethos in South Africa has changed and a strong and improved body of environmental law has developed. All business enterprises, large and small, now have to comply with an increasing number of complex environmental laws. Failure to do so could have significant legal and cost implications. It therefore no longer makes business sense to ignore environmental laws.No doubt, legal imperatives are a major force in creating a culture of sustainable development. Although there are those who recognise that sustainable development is necessary only in order to comply with the legal requirements, sustainable development is also necessary because it makes good business sense. Large enterprises, and possibly small enterprises, although here more research is needed, should recognise that sustainable development enhances business value and that compliance should, therefore, be seen as an investment in a sustainable future. These investments would then be long-term assets that would in due course enhance the value of the business.The question that arises is whether this new dispensation will ultimately threaten the survival of small businesses in particular and, if so, what measures should be taken to ensure their future development and growth. As will be discussed below, the survival of SMME’s as engines of economic growth is crucial to job creation in South Africa. At the same time the protection of the environment is crucial to sustainable development of the country and its peoples.Resolving this dilemma can only be in the interest of society as a whole.

ETHICS AND LEGAL ASPECTS OF PUBLIC INSTITUTIONS' LEGAL ACTIVITIES

Studies of professional legal activity stimulate methodological innovations that bring closer the disclosure of the theoretical concept and ethical-legal democratic transit. They are relevant to understanding the evolution and regime of interaction between power and society, based on the imperative of the rule of law. The social purpose of legal activity recognized as a condition for the rational organization of public-legal relations. Its objectivity conditioned by the real existence of the needs of society. The existence of a legal system presupposes the existence of the Bar as an element of it. It is not possible to guarantee the exercise of the rights of actors outside the actors. The influence of the moral renaissance factor, ethical and legal imperatives, mental archetypes of power – traditions, norms and values – in the process of formation and functioning of institutions of power, their perception and social legitimization must be taken into account. Ethics have a significant impact on the effectiveness of legal activities, support the system of social conditions and support the institutions of power, its brands, authority, image in the interaction of the state and civil society.

Genocide, ethical imperatives and the strategic significance of asymmetric power: India’s diplomatic and military interventions in the Bangladesh Liberation War (Indo-Pakistan War of 1971)

This paper seeks to understand if the political, legal and ethical imperatives of a humanitarian war justified Indian military intervention in East Pakistan. It examines the asymmetric, dynamic national power equations that shaped the Bangladesh Liberation War and the genocide that preceded the conflict. At the height of the Cold War between the United States and the Soviet Union, this conflict was a key flashpoint in South Asia. This research was undertaken through a qualitative literature review with the help of declassified archival documents and media from numerous national archives and government databases across the world. Aided by emerging insights, perspectives and research, this paper seeks to evolve, extend and expand our existing understanding of events as they unfolded within the overall matrix of this conflict. The results show that India’s ability to align its foreign policy and media narratives to its military objectives while adroitly managing big power rivalry holds lessons for how smaller states might compel strategic concessions from big powers and global institutions. This requires them to navigate both the asymmetry of national power and the asymmetry of attention during a conflict to secure their interests. In conclusion, recent times have seen an increasing trend for major global powers and alliances to declare war in the name of humanitarianism. The political and ethical imperatives of a humanitarian war in 1971 dovetailed seamlessly with larger Indian strategic goals and was one of the catalysts for the eventual unanimous adoption in 2005 of the global political commitment known as Responsibility to Protect (R2P) in the United Nations.

Aligning South African Data and Cloud Policy with the PoPI Act

On 1 April 2021, the South African government released the Draft National Data and Cloud Policy for public comment. This policy aims to support the digital economy in South Africa by implementing initiatives to augment the development of digital infrastructure and skills, with a specific focus on cloud computing. The adoption of the policy would help position the country as a data-driven economy. However, the implementation of such a policy is predicated on the existence of supporting digital infrastructure and aligned inter-departmental goals. Currently, there are many technological and legal considerations that must be addressed in order for such a policy to be implemented successfully. One particularly important consideration is how this policy relates to South Africa’s Protection of Personal Information Act, which came into effect on 1 July 2021. The Act sets out legal imperatives for the collection, storage and use of personal information belonging to South African citizens. The aim of this paper is to analyze how the Draft National Data and Cloud Policy relates to the Protection of Personal Information Act in terms of what is proposed in the Policy and what is legislatively imperative in the Act. The overarching context for this evaluation is data governance in the cloud with an emphasis on the security of personal information. Macroeconomic threats and a shortage of critical ICT skills presupposes technical challenges for the implementation of a cloud service. Formal Concept Analysis is utilized to conceptualize and understand the relationships between the Draft National Data and Cloud Policy and the Protection of Personal Information Act. Classification, Confidentiality and Open Data are presented as technological challenges to cloud implementation. This paper aims to contribute towards an understanding of these challenges and how they are affected by South Africa’s legislation and policies. We therefore investigate how the Draft National Data and Cloud Policy is situated in the broader context of data protection in South Africa.

Legal imperatives of medical negligence and medical malpractice

Medical negligence and malpractice are becoming a growing concern in Nigeria; even though many victims do not know how to go about seeking redress or demand justice, medical practitioners, too, do not understand the legal implications of their actions. Medical negligence and malpractice are tortious liabilities that can also result in criminal liabilities. It is a fact that health-care practice will occasionally result in circumstances where health seekers suffer some distress or permanent injury in the course of handling by medical practitioners. This distress or injury can be a result of either commission or omission due to the actions or inactions of the medical practitioner. This review was embarked upon using thoroughly studied recent and older literature concentrating on research indications resulting from the fields of medicine and law within and without Nigeria. Common acts that could give rise to lawsuits on medical negligence and medical malpractice include doctor's illegible handwriting, prescription and medication errors, misdiagnosis or failure to diagnose, improper medical treatment, leaving surgical instruments in patients after surgery, lack of informed consent, failure to refer a patient to a specialist, breach of confidentiality, extortion, and deception among others. For liability to come up in negligence, it is imperative that the three main fundamentals of negligence, which include that a duty of care is owed, there was a breach of the duty of care, and injury or permanent disability suffered as a direct consequence of a breach of the duty of care must be well established and proved beyond a reasonable doubt. The inability of a victim to successfully prove a case of negligence against a medical practitioner does not totally absolve a practitioner from charges related to other offences under other aspects of the law, hence the fact that negligence is difficult to prove does not leave a patient deprived of other legal opportunities as may be considered appropriate. Even though the law protects the medical practitioner to the level that liability for medical negligence and medical malpractice has to be proved beyond a reasonable doubt, much more legal protection is needed to allow medical practitioners to discharge their duties of saving lives. Medical practitioners need to be aware of their limits as well as the legal implications of their work; this can be achieved by incorporating medicolegal principles into medical education for medical students, as well as periodic medicolegal lectures for medical practitioners.