Legal Principles Research Articles

Legal Basis for the Application of the Principles of Legality and Justice in the System of Administrative Proceedings of the Republic of Kazakhstan

Abstract The purpose of the work is to study the principles of legality and justice in the practice of administrative proceedings of the Republic of Kazakhstan. For this, methods such as system and comparative analysis, logical analysis, deduction, induction, and formal-legal methods were used. During the implementation of the study, the significance, and role of legal principles in administrative justice in the Republic of Kazakhstan were investigated. After analysing the model of the transition of the countries of the former USSR to the system of administrative justice and the specifics of its implementation in Kazakhstan, it was concluded that the principles of legality and justice are legally fixed in the Administrative Procedure Code of the Republic of Kazakhstan. This article analyses the studies of both Kazakhstani and foreign scientists concerning the application of laws and principles in administrative proceedings. In addition, some aspects of improving the system of administrative justice in the context of legislative regulation of the application of legal principles are considered. The practical value of the results obtained is to provide recommendations that will have an impact on the activities of the administrative justice system of Kazakhstan and will allow it to be implemented more efficiently.

Navigating emerging trademarks issues for sport brands in the metaverse

PurposeThis paper aims to provide an integrated legal and marketing perspective on the imminent trademark challenges and opportunities for sports organizations operating in the metaverse.Design/methodology/approachThe approach is a legal commentary that explores the ways in which the current legal framework, especially in the context of trademarks, might need to transform to offer robust protection for sports brands in the virtual marketplaces emerging within the metaverse.FindingsOur analysis reveals that the traditional legal frameworks for trademarks are often inadequate to address the unique challenges posted by the metaverse, such as the issue of virtual goods replication and the global accessibility of branded content. The findings indicate that sport organizations must adopt proactive strategies to monitor and enforce their trademark rights effectively within these expansive digital environments. Moreover, legislative bodies may need to consider reforms or new regulations specifically tailored to the complexities of trademark protection in the digital realm to prevent dilution and misuse of sport brands.Originality/valueIn light of legal and branding issues related to metaverse-based trademarks, this paper is dedicated to examining the legal principles and foundations necessary to enhance the protection of sports brands within the virtual marketplace of the metaverse.

Applying feminist legal principles to achieve gender equality in Vietnam’s labor legislation

Applying feminist legal principles to achieve gender equality in Vietnam’s labor legislation

Rewriting the law of international organizations: Whither the Asia Pacific?

Abstract The law of international organizations is often described in terms of both its universality and its unity. Writers in this field begin their texts with an acknowledgement that there are common legal principles that have been developed by, and can be applied to, a variety of international organizations. The idea that there are legal principles applicable to multiple organizations – whatever their membership, location, powers, technical functions, or financial resources – is also implicit in the reports of the International Law Commission discussing the immunities, responsibilities, and law-making capacity of international organizations. But despite this search for common principles, a question remains whether international institutional law is based on the practice of all, or at the very least, a range, of organizations. Writers in this field have tended to focus on the activities of organizations based in either Europe or North America, including the United Nations and its specialized agencies, the European Union, and Council of Europe. This article argues that the omission of the principles and practices of organizations outside Europe and the United Nations’ system, specifically Asia Pacific organizations, undermines the claim of international institutional law to be universal. It explores the way in which a more inclusive approach – one that pays attention to the perspectives of Asia Pacific organizations – could illuminate certain features of the law and lead international lawyers to reconceive some of its central principles.

Analisis Penerapan Sanksi Pidana Pelaku Residivis Tindak Pidana Narkotika

Abstract In positive law, narcotics crimes are qualified as extraordinary crimes, because the impact of these crimes has a dangerous situation that is widespread. Law No. 35 of 2009 is the basic rule for law enforcement officers to carry out law enforcement for perpetrators. In Article 54 of the Law it is explained that judges are obliged to consider conducting medical rehabilitation for drug users. In Decision No. 745/Pid. Sus/2018/PN Srg, the defendant is a drug case recidivist who had previously been rehabilitated. By using a normative juridical research method that uses the approach of legislation and legal principles, this study aims to examine and determine the application of punishment to recidives in Decision No. 745/Pid. Sus/2018/PN Srg by using the theory of judges' considerations and the purpose of sentencing. The results of this study are the application of sanctions against narcotics crime recidivists must use the purpose of punishment which results in a deterrent effect for the perpetrator, so that the perpetrator does not repeat the action.

Application of Standard Agreements in Lease Purchase Contracts: Legal Implications of Business in the Realm of Civil Law

Business practices provide easy access to capital for certain goods. Hire purchase arises when the buyer cannot afford to pay cash. Standard agreements cannot be negotiated by consumers. In Indonesia, this practice is growing rapidly, especially in the motorbike trade. The application of standard agreements has important implications in business law, such as consumer protection and dispute resolution. Research on this subject is important for identifying challenges and opportunities in modern business. This legal research uses a normative juridical approach, which is a research method that relies on secondary data sources, such as library materials. This normative juridical approach involves analysis of legal principles, legal systematics, as well as vertical and horizontal synchronization in the civil law system in Indonesia. The results of this research are that the research highlights the importance of understanding the business practices of hire purchase contracts, especially the application of standard agreements and their legal implications. This raises questions regarding the balance of rights and obligations between providers and recipients of goods or services. It is important to understand the legal framework to ensure equality of rights and obligations and maintain the principles of consumer protection and public order in this business practice

Perceptions on the Ethical and Legal Principles that Influence Global Brain Data Governance

Advances in neuroscience and other disciplines are producing large-scale brain data consisting of datasets from multiple organisms, disciplines, and jurisdictions in different formats. However, due to the lack of an international data governance framework brain data is currently being produced under various contextual ethical and legal principles which may influence key stakeholders involved in the generation, collection, processing and sharing of brain data thereby raising ethical and legal challenges. In addition, despite the demand for a brain data governance framework that accounts for culture, there is a gap in empirical research and actions to understand how key stakeholders around the world view these issues using neuroscientists who are affected by these ethical and legal principles. Therefore, using the research question how do ethical and legal principles influence data governance in neuroscience? we attempt to understand the perceptions of key actors on the principles, issues and concerns that can arise from brain data research. We carried out interviews with 21 leading international neuroscientists. The analytical insights revealed key ethical and legal principles, areas of convergence, visibility, and the contextual issues and concerns that arise in brain data research around these principles. These issues and concerns circulate around intimately connected areas which include ethics, human rights, regulations, policies and guidelines, and participatory governance. Also, key contextual insights around animal research and ethics were identified. The research identifies key principles, issues, and concerns that need to be addressed in advancing the development of a framework for global brain data governance. By presenting contextual insights from neuroscientists across regions, the study contributes to informing discussions and shaping policies aimed at promoting responsible and ethical practices in brain data research. The research answers the call for a cross cultural study of global brain data governance and the results of the study will assist in understanding the issues and concerns that arise in brain data governance.

Judicial lawmaking: a conceptual exploration

The work aims to analyse the role of judicial lawmaking in the legal system of Ukraine and its impact on legal development. The study examines the extent of judicial authority in creating new legal norms, especially in comparison to the legislative branch. The methodological basis of the study includes a comprehensive review of relevant legal literature, an analysis of Ukrainian legal provisions related to judicial lawmaking, and an examination of judicial decisions that have contributed to legal development. The results of the study underscore the nuanced role of Ukraine’s courts in the legal landscape. While Ukrainian courts face limitations in directly creating new legal norms, the research reveals their substantial impact on legal evolution through judicial interpretation and the establishment of precedents. One key finding is the significant influence of judicial decisions on shaping legal practice in Ukraine. Through their interpretations of existing laws and legal principles, courts contribute significantly to the development of legal norms and standards. This process not only clarifies legal ambiguities but also ensures consistency and coherence in legal principles applied in various judicial proceedings. The study also emphasizes the importance of precedents set by Ukrainian courts. By establishing precedents, courts provide guidance for future legal cases and contribute to the predictability and stability of the legal system. This aspect is crucial for legal practitioners, scholars, and the public in understanding the application of laws and legal principles in different contexts. Conclusions drawn from the study emphasize that Ukraine has a legal system where the legislative branch plays a predominant role in shaping and changing legal norms. The courts in Ukraine have limited authority in creating new norms, as their main task is to apply and interpret existing legislation to specific situations that arise in society. However, it should be noted that courts can influence legal development through judicial interpretation and establishing precedents. When a court decides on an issue that does not have a clear solution in the law, it can establish a new precedent that can then be used for similar cases in the future. This contributes to the development of legal practice and the establishment of stable and consistent principles of judicial decision-making. Therefore, although courts in Ukraine do not have as significant an impact on law formation as the legislative branch, they can still contribute to the development of the legal system through judicial interpretation and establishing precedents.

Legal Certainty Principle in Judicial Activism Decision of the Constitutional Court of the Republic of Indonesia Case Number 143/PUU-XXI/2023

Judicial activism in the petition for Law Number 143/PUU-XXI/2023 concerning the term of office of regional heads / deputy regional heads can present the principles of legal certainty and substantive justice. The Petitioners in the case felt that they suffered constitutional losses due to a legal vacuum where the legislators failed to regulate the calculation of the term of office of regional heads elected in 2018 but inaugurated in 2019. As a result, the applicants experienced a cut in the term of office and could not run the full term of office for 5 (five) years. The type of research is normative, with a statutory approach, conceptual approach and comparative approach. The results showed that judicial activism carried out by the Constitutional Court could find substantive differences between Petition Number 143/PUU-XXI/2023 and Petition Number 62/PUU-XXI/2023, and the court could find a legal vacuum and restore the constitutional losses of the petitioners.

Strengthening Blue Carbon Ecosystem Governance in Indonesia: Opportunities for National Determined Contributions

Purpose: This study analyses the institutional management of blue carbon ecosystems in Indonesia. With transparent governance, blue carbon can be an effective tool to accelerate the achievement of NDC targets. Methode: This empirical juridical research applies a participatory approach involving discussions and interviews with several related parties. It also uses statutory and conceptual approaches. This paper presents a new construction of blue carbon ecosystem governance in Indonesia. Result and Conclusion: The overlapping authority between the Ministry of Environment and Forestry and the Ministry of Maritime Affairs and Fisheries is resolved by applying the legal principles lex specialis derogate legi generali and lex posteriori derogate legi inferiori. To achieve ideal institutional governance of mangrove management, there is a need for a cooperation scheme between sectors of government agencies, namely between the Ministry of Maritime Affairs and Fisheries, the Ministry of Environment and Forestry, and the non-structural institution Peat and Mangrove Restoration Council.

Balancing Bioethics and Legal Frontiers: А Case Study of Brazil’s Supreme Federal Court Decision on Embryonic Stem Cell Research

Background. The present work focuses on the need to protect prenatal life, which is intricately entwined with delineating the precise biological and legal juncture marking an embryo’s transition into personhood. Drawing upon bioethical insights from domestic frameworks and international jurisprudence, we compare diverse perspectives on the moral and legal standing of the embryo, including its right to life, and invoking legal principles in the context of cellular and regenerative medicine.Aim. The goal of this article is to investigate the various biosafety policy approaches governing embryonic stem cell research, ranging from outright prohibition to authorization solely for therapeutic or scientific ends. Through our analysis, we focus on the unique national context of Brazil to scrutinize the underlying rationale behind a specific legal challenge questioning the constitutionality of the BiosafetyLaw. This law, which permits the utilization of human embryonic cells for research and therapeutic purposes, raises concerns about potential infringement upon the inviolability of the right to life.Methodology. The research is based on deductive reasoning alongside formal-legal methodologies, including textual interpretation and comparative-legal analysis. The research process involved documentary, bibliographic, and virtual analytical inquiries utilizing a variety of resources such as legislative texts, monographs, academic articles, databases, and online libraries. Results. Through our examination in a distinct national context, we delineate the theoretical-philosophical and normative-ethical foundations underpinning the stances of Brazilian Supreme Court justices concerning the utilization of embryonic stem cells. Their arguments predominantly invoked significant constitutional liberties such as freedom of family planning, scientific research, and academic pursuits, intertwined with considerations of human dignity and the sanctity of life. Additionally, some justices cautioned against the potential hazards inherent in genetic manipulation.Implications. The legal and ethical ramifications of Brazil’s approach to biosafety legislation concerning embryo rights invoke the necessity for conducting neutral, unfettered scientific inquiry and regenerative therapies according to specific operational parameters. These include safeguarding the integrity of genetic inheritance, preemptive evaluation of potential risks and benefits (adherence to the precautionary principle), and ensuring informed consent for treatments. A significant hurdle consists in the need to establish robust mechanisms for overseeing research involving human embryos within the domains of biomedicine and regenerative cell therapy

Flattery (Musahibi) is an Unwanted Behavior and Barrier to Institutional Good Governance: An Islamic Perspective

This research delves into the clandestine realm of flattery, known as Musahibi, penetrating deep into its secretive world to illuminate its extensive impact as a hindrance to institutional good governance through the lens of Islamic education. By deploying a multifaceted analysis, the study aims to dissect decision-making processes, unravel distorted paradigms, and challenge ethical values while fostering cultural enthusiasm within institutions. It meticulously examines the corrosive role of flattery in distorting power dynamics, undermining accountability and transparency, and diminishes the cultural enthusiasm within institutions. By integrating contemporary governance structures with Islamic legal principles, this study aims to untangle the complex internal dynamics of flattery, advocating for a transformative leadership rooted in sincerity, integrity, and moral rectitude. It supports a culture of authentic leadership through introspective research, moral stewardship, and the cultivation of shared responsibilities. Moreover, it accentuates the urgent need for robust leadership within institutional governance by providing effective strategies for ethical stewardship, fostering accountability, and promoting excellence. In conclusion, it issues a resolute call to action, urging Islamic governance structures to confront and transcend the shadows of flattery through unwavering determination and principled intervention.

Domestic Facemask Waste Policy Based on Environmental Ethics in the Covid-19 Pandemic: Urgency and Challenges.

The Covid-19 pandemic greatly affected various aspects of life. To prevent and control its spread, people are morally and legally obliged to wear face facemasks. The use of facemasks brings many waste problems. However, the Indonesian policy on facemask waste management does not regard the massive environmental consequences, as the amount of domestic facemask waste reaches hundreds of tons daily with limited management capacity application. Hence, this study aims to assess current issues and policies on facemask waste from the perspective of environmental ethics. This research used the juridical-normative method, where legal rules and principles were processed to address current issues, supported by literature sources. This research employed qualitative approach to collect and analyze data. Results showed that there was a legal void which caused terrible facemask waste management in Indonesia. There was confusion in categorizing facemask waste, whether it is domestic or infectious waste, causing hazards in its management. From a deep ecology perspective, the applied facemask waste management was only beneficial for humans while completely neglecting biotic and abiotic components. To overcome this, several suggestions were: 1) categorizing domestic disposable facemask waste as hazardous waste, 2) applying sanctions for the violation of norms and tight social control on first-level management of facemask waste, and 3) using reusable facemask. The obligation of wearing facemasks that were protective for humans during the Covid-19 pandemic must be followed with policies regulating facemask waste management that consider the environment and its biotic and abiotic components.

La inteligencia artificial y la aplicabilidad en la administración de justicia: avances, desafíos y puntos de vista

The integration of AI in the legal field has generated an impact on the administration of justice, its influence on society and its potential to improve efficiency and access to justice. This study evaluates the feasibility and convenience of implementing AI systems in the administration of justice through a doctrinal and legal analysis, considering the potential of AI to optimize judicial processes and its implications in terms of legal certainty and procedural economy. The intersection of AI with law is examined, adopting notions of coding, algorithms and the adoption of Legal Expert Systems. The objective is to present an alternative to address saturation in the justice system, respecting the principles of legality and procedural economy. A qualitative bibliographic methodology is used to analyze the perspective of AI as a tool to reduce times and costs associated with judicial processes, concluding that its balanced and ethically responsible implementation could bring significant benefits, which requires a weighing of regulatory and ethical aspects to guarantee the respect for constitutional guarantees and avoid consequences, thus highlighting the growing relevance of AI in the legal field and its influence on the administration of justice.

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

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

Constitutional Values And Judges Morals In The Decision of The Constitutional Court Number 90/PUU-XXI/2023: Review of The Flow of Natural Law

The decision of the Honorary Council of the Constitutional Court stated that the Constitutional Court judges who examined case Number 90/PUU-XXI/2023 were proven to have violated the right to refuse. The right to refuse is part of the independent and impartial principle of the Constitutional Court. There has been a conflict of interest between the norms being tested and the Constitutional Court judges. Conflicts of interest are constitutional and moral violations. What are the juridical consequences of Constitutional Court Decision Number 90/PUU-XXI/2023 which violates the constitution and morals from the perspective of natural law philosophy? This research uses a normative juridical research method with a conceptual approach, a statutory approachs and a case approach. The results of the discussion have found that in the MKMK decision that the judge consciously and deliberately ignored constitutional principles regarding the right to refuse in Law Number 48 of 2009 concerning Judicial Power. Overruling the right to refuse is tantamount to overruling constitutional principles. Judges place constitutional values in practice as semantic values. Apart from that, there was a moral violation which was assessed by the lack of awareness not to review case Number 90/PUU-XXI/2023 due to a conflict of interest. Awareness comes from conscience and is closely related to integrity, independence and impartiality. The integrity of judges as enforcers and guardians of the constitution is at stake. Moral and legal principles in the constitution are two things that go hand in hand in natural law philosophy.

중대재해처벌 등에 관한 법률 시행에 따른 사회복지조직의 대응방안

The Serious Accidents Punishment Act was expanded to apply to all workplaces with five or more employees on January 27, 2024. This paper examines the major legal issues surrounding senior employment support agencies, especially senior clubs, which are social welfare facilities particularly vulnerable to major accidents, and proposes organizational countermeasures for preventing major accidents. To this end, this paper analyses the main contents of the Serious Accidents Punishment Act through academic literatures, and reviews various legal principles and key issues related to the implementation of the Act on senior clubs through the case laws. This paper aims to seek effective preventive measures and responses to the accidents that occur in senior clubs. The research revealed that the characteristics of senior clubs include continuous increasing trend in the number of elderly participants in senior job programs, full-time employments more than three hundred employees, various types of business operations such as public service, social service, and private business, and continuous occurrence of dangerous accidents. The key issues of the Serious Accidents Punishment Act relevant to the senior clubs are identifying an employee with legal responsibility, types of business subject to the Act, establishment of a dedicated occupational health and safety board appropriate to the type of business, a joint penal provision, and punitive damages. This paper proposes the following responsive measures for senior clubs in response to the implementation of the Act; changing employees’ perspective towards the Serious Accidents Punishment Act, building a health and safety management system reflecting characteristics of senior clubs, utilizing scientific risk management techniques in establishing a health and safety management system and support and management from the Ministry of Health and Welfare as well as local governments.

Application of AI in Halal Marketing: Navigating the Ethical Crossroads

This article examines the intricate process of applying Artificial Intelligence (AI) in the Halal marketing landscape, situated at a critical ethical crossroads. It explores the integration of AI technologies within Halal marketing strategies, emphasizing the importance of aligning with ethical, legal, and Islamic principles. Highlighting AI's potential to transform consumer engagement and trust, the paper advocates for a proactive approach in developing AI applications that respect Islamic values, consumer privacy, and fairness. It calls for collaborative efforts in crafting regulatory frameworks and ethical AI algorithms that are congruent with Halal standards, thus ensuring technology acts as a catalyst for ethical growth and integrity within the industry. The discussion underscores the dual aspects of opportunities and challenges presented by AI, urging a balanced embrace of technological advancements while safeguarding Islamic ethical and legal norms to foster the ethical expansion of the Halal industry globally.

Analysis of Hate Speech in the Perspective of Changes to the Electronic Information and Transaction Law

This study aimed to assess the effectiveness of hate speech rules concerning changes in electronic transaction information policies. It further used normative legal study which included the process of identifying legal rules, principles, and doctrines to address the constitutional issues. The results showed that the amendments from the 2008 ITE Law to the 2016 ITE Law did not adequately the basic problems. Furthermore, certain forms of hate speech rules were observed in the ITE Law, particularly in Article 27 paragraph (3) and Article 28 paragraph (2). These rules were unclear benchmarks used in assessing social media posts as hate speech, defamation, or criticism and opinion from an individual about a problem. Therefore, making improvements through legal reform was essential to ITE Law, specifically Article 27 paragraph (3) and Article 28 paragraph (2). The amendments were necessary to develop good legal certainty for the community. The government should further make legal comparisons with other countries to identify the best regulatory framework for the community.

Dispute Resolution on Overlapping Land Certificate Through Mediation Based on The Regulation of The Minister of Agrarian Affairs And Spatial Planning Number 11 Year 2016

This study has the purpose of examining and analyzing mediation efforts in resolving land ownership disputes at the Bekasi City Land Office. In addition, it also analyzes the legal protection for parties to land disputes based on the Regulation of the Minister of Agrarian Affairs and Spatial Planning Number 11 of 2016. The research method used is normative juridical research method. The normative juridical research method is a legal analysis based on legal norms, principles, and doctrines. The results showed that the application of mediation in land ownership disputes at the Bekasi City Land Office has not been effective enough. In 2017-2020, the Bekasi City Land Office was only able to resolve disputes through mediation with a limited number of cases. This is due to external and internal obstacles experienced by the section for controlling and handling land disputes. In addition, legal protection in resolving land disputes at the Bekasi City Land Office is actually not enough to provide legal protection, because the results of the mediation carried out are still not optimal. Internal and external obstacles experienced, causing repressive legal protection has not been fulfilled for the parties to the dispute.