Legal Point Of View Research Articles

Covid-19 2.0. Derecho internacional y protección del derecho a la salud en el ciberespacio: una visión desde Ecuador

El objetivo de este artículo es explorar la oportunidad que presenta la crisis del Covid-19 en Ecuador para interpretar el Derecho internacional de los derechos humanos y el Derecho internacional humanitario de manera favorable a proteger el derecho a la salud y los sistemas de asistencia salud en el ciberespacio. A través de una metodología descriptiva que permite un análisis integral de la temática desde el punto de vista jurídico, el artículo sintetiza los principales debates internacionales sobre el alcance de la protección del derecho a la salud al amparo del Derecho internacional de los derechos humanos frente a amenazas cibernéticas; estudia la protección que brinda el Derecho internacional humanitario a los ciudadanos y a los sistemas de asistencia de salud; y examina la situación del Ecuador, como un país que se enfrenta a varios retos en la aplicación de las políticas para asegurar la protección del derecho a la salud y los sistemas de asistencia de salud. El artículo concluye que los desarrollos normativos en ambos sectores no han logrado establecer una protección aceptada y efectiva, con obligaciones claras para los Estados en el espacio cibernético para proteger a las personas y a los sistemas de asistencia de salud. Asimismo, señala que las lagunas del Derecho internacional respecto a la protección de la salud en el ciberespacio se agravan en Ecuador al producirse una disonancia discursiva entre política exterior y nacional, con un impacto en la protección del derecho a la salud.

The legal capacity of patients with Alzheimer's disease

AbstractBackgroundAs human life extends, problems affecting people over the age of 60 are becoming an important challenge for scientists. One of the biggest threats to these people is the risk of Alzheimer's disease. This is not only a medical, but also a sociological, psychological and legal problem. One of the most important problems in legal sciences is the issue of legal capacity. It defines when a particular person has the ability to acquire rights and incur obligations under civil law. Usually a person achieves legal capacity at the age of majority. Another factor that affects having legal capacity is the occurrence of a mental illness. The progressive symptoms of Alzheimer's disease, such as memory loss or lack of awareness about one's life situation, significantly limit patient competence to knowingly acquire rights and incur obligations.MethodsThe research was carried out using the method of analyzing scientific literature in the field of medicine, medical law and civil law.ResultsThere is no doubt that in the first phase of Alzheimer's disease the patient has legal capacity. The patient's situation in the third phase, i.e. dementia due to Alzheimer's disease, is also clear ‐ he no longer has legal capacity. The second phase, i.e. Mild cognitive impairment, is problematic from a legal point of view. It is difficult to unequivocally assess the patient's competence to consciously acquire rights and incur obligations. Each time in such a situation, a court that assesses a person's legal capacity should seek the opinion of expert neurologists and psychiatrists to determine the person's state of consciousness.ConclusionsAlzheimer's disease affects a person's legal capacity. The assessment of whether a person is able to consciously acquire rights and incur obligations should always belong to the doctors and lawyers cooperating with each other.

DMZ세계평화공원 추진 및 운영에 대한 법적지원방안

May 2013, Park Geun-hye of the president of the U.S. senate in a speech to dmz the World Peace Initiative after a public offering, the DMZ is a new park the two Koreas.(- building trust process) the confidence-building process of public opinion as to be New Year’s Day of the spotlight.The proposed DMZ World Peace Park at the time is fundamentally different from the previous plan in that it not only covers the southern part of the Demilitarized Zone but also the northern part of the DMZ, but also opens up the main body of the park’s creation and operation to the international community, including the two Koreas, the United Nations, the United States and China.<BR> The purpose of this study is to illuminate the Demilitarized Zone from a legal and institutional point of view and explore domestic legal support measures for the future creation and operation of the World Peace Park. Prior to the full-fledged analysis of the system, a brief look at the concept of the Demilitarized Zone and the normality of the Armistice Agreement, which is the basis for its direct installation, in order to understand the legal reality of the Demilitarized Zone. The constitutional and unification legal significance of the World Peace Park project to be created in the Demilitarized Zone based on the problems of legal reality found herein and the legal basis of the current law are considered (II respectively.<BR> Next, in the analysis of the current system, the normative system currently applied in the Demilitarized Zone will be divided into international and domestic law aspects, and among these, regulations that serve as obstacles to the relationship with the World Peace Park project will be reviewed (III). This study mainly aims to check domestic legal elements, but to the extent deemed essential, such as the Armistice Agreement, the international legal problems will also be pointed out and solutions reviewed together.

Digitalization of labor: legal and economic frameworks of development

Nowadays, digitalization is a process that affects absolutely all directions of human life, changing it significantly. It’s difficult to imagine our current life without implementation of modern advanced technologies. Creation and implementation of information technologies are used as indicators to evaluate the level and quality of a country's economy and society development. Impact of digital technology development on the economy and on the labour market tendencies is examined in the paper. It’s determined a significant part of Ukraine's economy is developing illegally. On the one hand, the gig economy fosters economic development in the country, but at the same time, it partly provides the development of the illegal – shadow economy. The economic nature of freelance from the legal point of view is analyzed. Different and the most relevant legal forms of labour performance of freelancers are defined in the academic work. The main disadvantages of freelance compared to legal employment are described in the paper. Based on the comparison of the average monthly wage and average monthly income of freelancers, conclusions describe the crucial reasons for freelance development in Ukraine, especially among young people. The current draft bills in the field of labour law in the context of digitalization are analyzed, their positive and negative statements for improving the social and economic freelancers’ welfare are identified. The conclusions determine options related to the improvement of economic and legal policies in order to condemn shadow employment and to ensure proper legal protection for freelancers in Ukraine. The importance of proper labour law is emphasized in the paper. The necessity of legal employment as an opportunity to prevent unfair relationships with the employer is described.

Problem of Imputability in Case of Post Splenctomy Stroke Following a Traffic Accident

The occurrence of perioperative stroke related to noncardiac, nonaortic surgery is frequently less expected than cardiovascular related one. Splenectomy could be one of these situations. The advent of post-splenectomy stroke following trauma involving third party, whether accidental or intentional, can arise several questions and be particulary challenging from legal point of view. Aims of this manuscript are to report a case of post splenectomy stroke following a traffic accident and to discuss both imputabilities of the stroke to the splenectomy and the stroke to the traffic accident. A 40-year-old male, without past medical history, was a victim of a traffic accident. Body-scan showed a Haemoperitoneum of medium abundance, a ruptured spleen and a fracture of the right humerus. An emergent splenectomy was performed. The postoperative examination revealed a Glasgow scale of 9 with anosocoria, hypotension and tachycardia. He was reanimated. A computed tomography (CT) scan, performed 6 hours after surgery, showed brain ischemia in the territory of the left middle cerebral artery (MCA) suggestive of thrombembolism with deviation of the median line and sub-falcoral engagement. Few hours later, he was declared deceased.

TINJAUAN SIYASAH SYAR’IYAH TERHADAP PENETAPAN BATAS USIA NIKAH (Studi Kritis Terhadap Penetapan Usia Nikah Di Indonesia)

Various countries including Indonesia have enacted laws regulating the age limit for marriage. The determination of thelimit is certainly not free from criticism and controversy. On the other hand, the presence of a state to regulate people's affairs is highly emphasized in Islam, both relating to religious issues and world problems.This is what is known as siyasah shar'iyah ‘good governance in Islam’. However, the determination of the age limit for marriage needs to be studied further from the perspective of siyasah shar'iyah. This study aims to determine the general concept of siyasah shar'iyah, the stipulation of the age of marriage in Islam, the age limit for marriage in Indonesia, and the conformity of these rules to the concept of siyasah shar'iyah.This research is a library research that uses a qualitative approach. The results of this study indicate that the general concept of siyasah shar'iyah is the authority of the leader to regulate matters that have not been determined by sharia arguments, as well as things in sharia that are not permanent or have many legal points of view. As for the age limit for marriage, it is not specified in Islam. However, a guardian (father) may even marry off their young children. Meanwhile in Indonesia, a person is not allowed to get married before reaching the age of 19, whether male or female. This stipulation of the age limit for marriage is not in line with the concept of siyasah shar'iyah. As this has legal consequences that are contrary to what has been established by Islam through the sharia argument, which is that it is permissible for someone to marry under that age.On the other hand, it also contradicts the recommendation of the Sharia to hasten marriage if it is possible.

The Fate of Virtual Currencies in India - Regulation and Redefinition

The advent of Virtual Currencies (VCs) in the global financial landscape has been a cause for concern for money market regulators and governments. This is due to the fact that VCs were designed to operate without the need for a centralized authority and consequently, regulating VCs has posed a challenge for most jurisdictions across the world. Further, due to the volatile nature of VCs and their ability to destabilize the market in the long run, most regulators have tried to nip the problem in the bud by not allowing VCs to operate in a manner similar to fiat currency. However, while VCs do not have legal tender status which is guaranteed by a centralized authority, they operate in a manner that is very similar to generic currency. They may be used as a medium of exchange, a unit of account, a store of value, and may be used to as a method for the discharge of debts. That being said, VCs have been restrictively defined by regulators to ensure that they may not function as money to ensure that they cannot turn into a valid medium of exchange that replaces the traditional fiat currency. In India, a similar trend is reported with the RBI prohibiting the entities regulated by it to enter into or facilitate transactions that involve VCs. Furthermore, the legislature is also considering a law to prohibit the use, issuance, transfer, mining, generation, disposal or sale of crypto-currencies within the territory of India. The present paper seeks to determine and analyze the true nature of VCs from a legal viewpoint. To that end, Part I introduces the main issues that are to be dealt with in the present paper; Part II of the paper is a cross-jurisdictions analysis of how VCs have been treated and defined by regulators, legislators and courts across the world; Part III deals with the treatment of VCs in India by the Government and the RBI, with a special focus on the Supreme Court’s judgement in Internet and Mobile Association of India v. Reserve Bank of India to determine the legal definition and status of VCs in India; and Part IV concludes.

The Clean Energy Package and Demand Response: Setting Correct Incentives

We describe how recent EU regulation affects demand response (DR) and highlight some of the remaining regulatory challenges from a legal and economic viewpoint. With the Clean Energy Package (CEP), the EU has opted for a fully market-based, consumer-centered approach for DR. The development of business models and products is left to a large extent to market forces. However, to enable the efficient development of those DR markets, network regulation has to adapt. (1) Network tariffs have to become more cost-reflective to provide correct incentives to market participants. The capacity tariffs have to increase, net-metering should be abolished, and optional tariff components for providing flexibility may need to be considered. (2) The regulation for distribution system operators (DSOs) may need to be fine-tuned to reflect their new roles. We present three scenarios: (a) a horizontal merger of unbundled DSOs under incentive regulation, (b) a DSO as a subsidiary of an integrated utility under cost plus regulation, (c) a transfer of some activities from DSO to TSO.

Tunnel spoil recycling for concrete production at the Brenner Base tunnel in Austria

AbstractIn the construction of major tunnel structures, large quantities of rock material are generated by the excavation of, for example, tunnels or caverns out of the in situ rock mass. Excavated rock material was often considered as undesired by‐product and from a legal point of view as waste in the past. Nevertheless, there is the need for construction material at the tunnel construction site directly where the rock material is generated. Broad scientific research is conducted concerning the utilization possibilities and optimization of recycling implementation. This article deals with the recycling of tunnel excavation material substituting conventional aggregate for concrete by the example of the Brenner Base Tunnel in Austria. Concrete design, material processing, and concrete production were affected by challenging geological bedrock conditions. This article presents the scientific approach, experimental setup, verification, and the realization on the construction site. The way from preliminary mixing designs to the final product is illustrated for two main rock types: calcareous schists, which successfully were recycled and processed as aggregate for shotcrete, structural and inner lining concrete; and quartz phyllite with unsuitable rock properties for concrete production due to intense foliation and mica‐rich mineral composition. The results are demonstrating the need for detailed examination of rock and concrete properties regarding the usability of tunnel excavation material.

INTRODUCTION THE CONCEPT OF STRENGHTENING THE RESILIENCE OF SOCIETY

INTRODUCTION THE CONCEPT OF STRENGHTENING THE RESILIENCE OF SOCIETY

Effectiveness of laws and policies governing permissive parenting in pursuit of the reduction of severe child abuse in Germany

Abstract Laws and policies governing permissive parenting in Germany including provisional withdrawal of parental custody coupled with children taken preventively into custody (Inobhutnahme) by the German Youth Welfare Offices (Jugendamt) seem to uncover cases of severe child abuse in Germany from the dark into the light field but may not actually have a significant effect on controlling and decreasing such cases. In the year 2000, the German government enforced a series of prohibitive laws in Germany’s civil and social codes to preventively protect children from violence. The costs for processes including continuous monitoring of parental compliance to these laws reached 12.6 billion EUR in the year 2018 with an increase of 146% since 2001. The number of withdrawals of parental custody rose by 65% to approximately 11,000 cases in the same period. The number of children taken preventively into custody due to suspected child maltreatment, abuse or neglect increased by 29% to 40,379 cases in the year 2018. However, the actual number of cases of severe child abuse in Germany did not decline as anticipated, but rose by 39%, close to 3,500 reported cases in the year 2018. The European Parliament issued a resolution highlighting the large number of petitions received regarding the role of the German Youth Welfare Office involved in alleged discrimination. Parents in Germany may be unduly criminalized by preventive intervention in basic parenting rights. From an ethical and legal point of view, the German government may wish to revise the current legislation in the various codes so parents regain freedom to individually chose the most suitable parenting style similar to the Canadian model with proven outcomes regarding maintenance of child wellbeing, prohibition of severe child abuse and effectiveness of reducing family violence.

Conducting Non-COVID-19 Clinical Trials during the Pandemic: Can Today's Learning Impact Framework Efficiency?

The COVID-19 pandemic has severely disrupted non-coronavirus clinical trials. In the case of life-threatening diseases, such as cancer, this is particularly dangerous, as treatment cannot simply be stopped. In the EU, guidelines for the management of ongoing studies were issued; however, national coordination is still lacking. This article aims to raise awareness on the struggle of managing ongoing clinical trials in the EU during the pandemic. The goals are to bring attention, from a legal and regulatory point of view to the difficulties faced by those involved in clinical research, and to critically position the current hurdles against the backdrop of the existing legal and ethical framework. We investigated the EU guidance and the national approaches of all EU/EEA Member States, and critically discussed selected issues. We argue that the crisis may be an opportunity to foresee meaningful changes in the EU clinical trials framework post-COVID-19.

Multicriteria Evaluation of Labor Stability

The job stability of workers represents an indicator for people's quality of life. Evaluating job stability from a legal point of view would allow quantifying its impact on workers from a legal perspective. The present investigation proposes a method for the legal evaluation of the labor stability of the workers. It bases its operation on the Neutrosophic Multi-criteria Linear Weighting method. A Case study is developed on three Cantons of Los Rios province to demonstrate the applicability of the proposed method. Paper ends with conclusion, recommendation and the projections for future works.

Hacia la recuperación de la formación profesional para el empleo presencial

El trabajo analiza y valora el Sistema actual de la Formación Profesional para el Empleo en España, desde un punto de vista jurídico. El análisis de las normativas avanza desde los primeros acuerdos resaltando la importancia de la Formación Profesional para el Empleo y que contemplan las bases, hasta las distintas incorporaciones y novedades acaecidas en el tiempo, con especial incidencia a la situación presente COVID, la cual ha supuesto una paralización del Sistema de Formación, y adaptación de éste a través de medidas extraordinarias para reactivar los cursos de Formación Profesional para el Empleo de forma presencial.

Legal Challenges in the face of the Decisive Transformation of the Media

Purpose ”“ Approach and analyze the technological industries in society, as a global society, and how it is approached from the legal point of view. This study aims to make an analysis of the social context and technological progress and determine what main legal problems arise. There is also the purpose of investigating what impact new technologies have had in the audiovisual industry globally, taking into account the emergence of new digital business models, in order to determine their legal nature.&#x0D; Methodology ”“ The methodology used is mainly based on the analysis of the different Laws that regulate the digital market. The approach has been directed at European claims to respond to new digital models and discover if the result has had an effective application on citizens.&#x0D; Findings ”“ The study sets out as objectives achieved cross-border access of audiovisual platforms in the European territorial area. Objective met in a positive way but still with many inconveniences. It is noted a clear advantage for users, but with universal challenges, such as the exploitation of audiovisual content within the Right to information.&#x0D; Practical Implications ”“ If the laws were more current, companies and technological industries could give a more effective response to society, while creating wealth. It also shows the comparison between a European system, more protectionist towards the user, for example, with the protection of personal data, with respect to the Latin American system law. These differences impact economically differently in each country.&#x0D; Originality ”“ The study detects the most fragile points, the current conflicts of the digital platforms and shows the lines to follow through public policies.

Business and Human Rights, from Theory to Practice and Law to Morality: Taking a Philosophical Look at the Proposed UN Treaty

This paper considers the UN efforts to introduce a legally binding Treaty on corporate accountability for human rights impacts in the context of other proposed legislation at country level, on the one hand, and existing voluntary initiatives like the UN Guiding Principles (2011), on the other. What we are interested in is whether the proposed Treaty signals a transition from voluntary initiatives (based on moral commitments) to law (that is, a focus on compliance), and the extent to which it might stimulate or hinder links between judicial and non-judicial initiatives. The scholars who have explicitly addressed these two divides are – Michael Sandel, on theory v. practice; and Amartya Sen, on law v. morality. We engage with their views, in sections II and III respectively, seeking to build an integrated approach to help us overcome these dualisms. We further consider John Ruggie’s “principled pragmatism”, a strategy that he uses to build the Protect, Respect and Remedy (henceforth, PRR) Framework; and we invoke arguments from casuistry as well as a practice-focused deontology (Thomas Donaldson’s) in favour of an ethics ‘beyond cognition’, which we consider better suited than either utilitarian or principle-based theories to guide the debate on human rights. This is because it allows us to take non-rational factors into account (such as emotions and personal affiliations), when judging the kind of common good we consider worth pursuing. In the last section of the paper, we investigate whether and how might the Treaty illustrate the two divides, trying to (a) distinguish between purely legal elements and those of a wider nature, to do with morality; and (b) understand what might help bridge the gap between theoretical commitments to the universality of human rights and various practical challenges. Our aim is not to evaluate the Treaty, from a legal viewpoint, or suggest improvements to it (lawyers are better placed to do that); rather, we seek to investigate the way in which the proposed Treaty – which is the first attempt to address the challenge of transnational business and human rights in international law – combines moral and legal aspects, and what this tells us about the world we live in.

Estrategia didáctica para el aprendizaje de la prueba de la bencidina y su importancia para profesionales de las ciencias forenses

&lt;p&gt;En esta investigación se propuso describir una estrategia didáctica para el aprendizaje de la prueba de la bencidina y su importancia para los profesionales de las ciencias forenses a través de un caso disponible en un foro virtual, bajo la plataforma Moodle. Se trabajó con 21 estudiantes inscritos en el Diplomado en Investigación Criminal y Ciencias Forenses de la Universidad Dr. José Gregorio Hernández-Venezuela, durante el año 2015. La propuesta sugerida, estimuló la curiosidad y el aprendizaje colaborativo para la construcción del conocimiento científico. Sin embargo, se resalta la necesidad de dosificar los términos propios de la química cuando se enseña a profesionales no relacionados con esta ciencia, con el propósito de fundamentar y argumentar su actuación pericial. Los estudiantes lograron comprender la interpretación de esta prueba para el estudio presuntivo de las manchas de sangre, desde el punto de vista científico y jurídico.&lt;/p&gt;

Политические акценты современных взаимодействий религиозного и светского в обществе

The purpose of this work is to study the modern interactions of religious and secular societies, they are simultaneously considered through organizational, legal and political points of view. By the method, the author chose an analytical review of the regulatory framework, foreign and domestic publications on the interaction of religious and secular in society. The work is based on a secondary analysis of data from socio-political surveys of leading research centers - the VTsIOM, the analytical center of Yuri Levada and the Europe Social Survey. Since today the issue of national security, the fight against religious extremism and terrorism, the prevention of conflicts on a religious basis, the harmonization of interfaith relations, the author's study is relevant. The scientific novelty of the work is determined by a comprehensive review of the legislative basis of freedom of conscience in Russia and abroad, as well as a political and organizational analysis of cases and content. Such an analysis suggests that the system of international law and the legislation of the Russian Federation, State-confessional policy, has made it possible to include religious organizations not only in the social sphere, but also in the system of public administration, in the political process. An analysis of cases, content and practices allows us to conclude that representatives of the religious and secular parts of society do not always have the same opportunities, rights, freedoms in the conduct of their activities. Unbelievers or representatives of other small (non-traditional) faiths may be an acceptable side.

Ambiente, giustizia e diritto(i)

In the face of recurrent environmental disasters, which are mainly caused by human beings’ direct action, the legal response to the problem often appears inadequate. Both the difficulty of defining, from a legal point of view, phenomena that are still unclear on a scientific level and the complexity of the actions causing environmental disasters are the main reasons for the cur-rent inadequacy of law. The non-linearity of the relationship between knowledge, representation, and legal definitions of environment-related issues, taken together with the even more urgent threat of irreversible damages, requires an extraordinary imaginative effort to develop new frames that can respond to the communities’ requests for justice.The strategic use of international justice to file pilot cases or, following the proposal of South American neo-constitutionalism, the recognition of the rights of Nature (Pachamama) can pave the way to suitable answers and innovative legal solutions.

Judging for Utopia: Climate Change and Judicial Action

When we speak of judges who judge for Utopia, we speak about judges today who pursue a better world through their judging. In this contribution, it is argued that a judiciary that is actively engaged in making the world a better place is good for society, also from a legal point of view. Since the most urgent call for utopian law and utopian judging today is on the issue of climate change, litigation in this field forms the main case for discussion. Controversial issues of utopian judging arise when there is disagreement in society over the direction the judiciary is taking, or when the judiciary is taking a separate way from the legislator or the executive power. In such situations, utopian judges may come under criticism for judicial activism or excessive judicial review. It is submitted here that disagreements and differences are, however, not something that should be avoided; they drive the system forward in the exercise of checks and balances. Climate change litigation is an example where there is a need for this today.