Legal Questions Research Articles

Some conceptual and legal questions of data gathering in criminal cases

Aim: The purpose of this study is to present some general questions and problems of data gethering in criminal cases in aspect of criminal procedure law and forensic sciences. Methodology: Presentation, analysis, evaulation and drawing conclusions of legal rules, studies, papers, and textbooks in the subject area, both in Hungarian and Anglo-Saxon literature. Findings: Data gathering is a well-known method in both forensic sciences and criminal procedure law. However its meaning is different in these two fields of criminal sciences. Before the current code of criminal procedure in Hungary the meaning and content of data-gathering was similar in forensic science and in legal rules. But the new code has integrated the instruments of crime detection purposed secret information-gathering appliapble before the starting of investigation, and made them criminal procedural instruments under the name of covert instruments. Besides that the new code significantly changed the system and legal rules of „open” data-gathering methods. Nowdays some data-gathering methods only aply as covert instruments with all its strict conditions, consequences and formal rules. In my study first I try to withdraw the conceptual borders of data-gathering and outlines some historical backgrounds. After it I explain the conception and content of data gathering in criminalistic literature, then I examine the rules of data gathering in criminal procedure law. In the end of my paper I summarize the problems of this conceptual dualism. Value: The (open) data gathering in criminal cases as a subject has not been examined recently, so this study can draw attention on the problems of the latest legal regulation and the extension and modernization of criminalistic recomendations.

Death and the artificial placenta.

Artificial Amnion and Placenta Technology (AAPT)-sometimes referred to as 'Artificial Womb Technology'-could provide an extracorporeal alternative to bodily gestations, allowing a fetus delivered prematurely from the human uterus to continue development while maintaining fetal physiology. As AAPT moves nearer to being used in humans, important ethical and legal questions remain unanswered. In this paper, we explore how the death of the entity sustained by AAPT would be characterized in law. This question matters, as legal ambiguity in this area has the potential to compound uncertainty and the suffering of newly bereaved parent(s). We first identify the existing criteria used to delineate the legal characterization of death, which occurs before birth or during the immediate neonatal period in England and Wales. We then demonstrate that attempting to apply these in the context of AAPT gives rise to a number of challenges, which make it impossible to reach a definitive conclusion as to the nature of death in AAPT using the current legal framework. In doing so, we demonstrate that the current legal framework in England and Wales may be unable to adequately capture the situation of an entity being sustained by AAPT.

Regulating embryo models in the UK.

One of this century's most dramatic scientific developments is the reprogramming of stem cells in order to create self-organizing embryo-like entities, known as stem cell based embryo models (SCBEMs). The science is moving very quickly, but if, as increasingly appears to be the case, scientists are capable of creating entities that are effectively indistinguishable from sperm and egg derived embryos, important legal questions arise. In countries like the UK, where a strict regulatory regime applies to research on embryos, should this be extended to SCBEM research, or would a different regulatory response be appropriate? Drawing on the 1984 Warnock Report, the Human Fertilisation and Embryology Act 1990 and the latest guidelines from the International Society for Stem Cell Research, this article considers principles for the regulation of the creation and use of SCBEMs.

The commission of crimes using autonomous weapon systems: Issues of causation and attribution

Today’s military takes advantage of technological progress primarily through developments in the war industry. Of particular importance is the development and use of advanced autonomous weapon systems, which are changing the way conflicts are fought and redefining the basic strategies on the modern battlefield. The use of these systems raises ethical, philosophical, and legal questions about the relationship of causality and attribution that must exist between an act and its criminal result.

The implications of the Indo-Pacific Partnership for Maritime Domain Awareness (IPMDA) in the South China Sea: A Chinese perspective

The emergence of China as a major power and its adjustment of foreign policy have raised concerns in the U.S. The Quad, led by the U.S., aims to counterbalance China’s growing influence in East and Southeast Asia, and the Indo-Pacific Maritime Domain Awareness (IPMDA) acts as an important component of its strategy. However, this article notes that the endeavor faces significant challenges, including legal and geopolitical risks, as well as economic and technical limitations. Intelligence-gathering activities may infringe upon the sovereign rights and jurisdiction of coastal states, especially within disputed maritime areas. Cooperative enforcement under IPMDA can raise legal questions concerning the transfer of maritime jurisdiction under UNCLOS to non-contracting parties. China perceives the IPMDA initiative as a threat posed by the Quad. The Chinese government is concerned that it could spark renewed criticism of its fishing industry and strain diplomatic ties with neighboring countries. China’s response could entail the establishment of alternative mechanisms and increased transparency in maritime activities. Against the backdrop of intensifying competition between the U.S. and China and ongoing disputes in the South China Sea, the IPMDA could exacerbate existing tensions in the SCS area. The exclusivity of the IPMDA mechanism may not serve the best interests of maritime security and prosperity in the Asia-Pacific region. In this context, China is encouraged to play a more constructive role in defusing tensions.

The Investment Banks’ Hiring Practices in China: On or Off the Radar of the Foreign Corrupt Practices Act?

This study examines the hiring practices of investment banks in China, with a specific focus on JPMorgan's "Sons & Daughters" program. These practices have raised significant legal and ethical questions under the Foreign Corrupt Practices Act (FCPA). The objective is to analyze whether these practices violate the FCPA and to discuss their broader implications for global business ethics and regulatory compliance. Employing a comprehensive literature review, theoretical analysis, and case studies, the research investigates data from legal documents, academic articles, and regulatory reports. The findings indicate that the "Sons & Daughters" program, and similar hiring practices by other banks, constitute a grey area within FCPA enforcement. The study reveals systematic quid pro quo arrangements where investment banks hire relatives of Chinese officials in exchange for business opportunities, suggesting potential violations of anti-bribery provisions. The analysis underscores the enforcement challenges of the FCPA in diverse cultural and regulatory environments. It discusses the implications for corporate governance and the global financial industry, emphasizing the need for robust compliance mechanisms and higher ethical standards. The study concludes that while such hiring practices might offer competitive advantages, they undermine fair competition and ethical standards, necessitating stricter enforcement of the FCPA. The paper suggests measures to mitigate these risks and promote ethical hiring practices in the financial sector.

What Might Considering the Criminalization of Emotional Abuse Teach Us About Defining It?

Although the issue has been discussed for decades, the field of intimate partner violence struggles with the lack of a consensus definition for emotional abuse. In this article, it is suggested that differences in definition are caused by everyday variation in value judgment among researchers. To address this, it is argued that investigating emotional abuse should be acknowledged as an exercise in moral thought as much as it is in scientific rigor. Looking at the philosophy of criminalization, such as the work of Joel Feinberg or Douglas Husak, it is proposed that criminalization theory may serve to guide research on emotional abuse, reduce or overcome the definitional issue, and reveal problematic gaps in understanding. This article will present a general description of the philosophical and legal questions involved in the hypothetical criminalization of emotional abuse, evaluate existing research from that perspective, and propose a minimalist rather than comprehensive approach to definition, an approach involving either focusing only on those behaviors judged to meet the standards for potential criminalization or conceptualizing the range of emotionally abusive behaviors as distinct phenomena to be studied independently.

PENGUNDURAN DIRI RUSIA DARI ICC : TELAAH BERDASARKAN ASAS GOOD FAITH DALAM HUKUM PERJANJIAN INTERNASIONAL

This study aims to examine the validity of Russia's withdrawal from the International Criminal Court (ICC) in light of the principle of good faith as established in the Vienna Convention on the Law of Treaties (VCLT). The primary objectives of the research are, firstly, to elucidate the legal implications of the principle of good faith within the 1969 VCLT. Second, to apply this principle to evaluate Russia's withdrawal from the ICC in 2016. To address the legal questions raised by this research, both the statutory and conceptual approaches have been employed. The statutory approach refers to the 1969 VCLT as the source of statutory law, while the conceptual approach draws on the opinions of scholars regarding the application of the principle of good faith in international treaty law. The findings of this research indicate that Russia's withdrawal from the ICC is not legitimate, as it demonstrates Russia's intention to avoid the application of the ICC's provisions. This withdrawal constitutes an act of bad faith, as it deliberately circumvents the unfavorable provisions of the agreement that apply to Russia following its occupation of Crimean territory.

Crafting effective regulatory policies for psychedelics: What can be learned from the case of cannabis?

AbstractThe turn of the century brought a resurgence of interest in psychedelics as a treatment for addiction and other psychiatric conditions, accompanied by extensive positive media attention and private equity investment. Government regulatory bodies in Australia, Israel, Canada and the United States now permit use of psychedelics for medical purposes. In the United States, citizen action and corporate financing have led to petitions and ballot initiatives to legalize psilocybin and other psychedelics for medical and recreational use. Given this momentum, policymakers must grapple with important questions that define whether and how psychedelics are made available to the public, as well as how companies produce and promote them. The current push to broaden the production, sale, and use of psychedelics bears many parallels to the movement to legalize cannabis in the United States and other nations—most notably, the use of poorly‐evidenced therapeutic claims to create a de facto recreational market via the health care system. Experience with cannabis highlights the value of debating the question of legalization for nonmedical use as such rather than misrepresenting it as a medical issue. The lessons of cannabis policy also suggest a need to challenge hyping of psychedelic research findings; to promote rigorous clinical research on dosing and potency; to minimize the influence of for‐profit industry in shaping policies to their economic advantage; and to coordinate federal, state, and local governments to regulate the manufacture, sale and distribution of psychedelic drugs (regardless of whether they are legalized for medical and/or recreational use).

Does an App a Day Keep the Doctor Away? AI Symptom Checker Applications, Entrenched Bias, and Professional Responsibility.

The growing prominence of artificial intelligence (AI) in mobile health (mHealth) has given rise to a distinct subset of apps that provide users with diagnostic information using their inputted health status and symptom information-AI-powered symptom checker apps (AISympCheck). While these apps may potentially increase access to health care, they raise consequential ethical and legal questions. This paper will highlight notable concerns with AI usage in the health care system, further entrenchment of preexisting biases in the health care system and issues with professional accountability. To provide an in-depth analysis of the issues of bias and complications of professional obligations and liability, we focus on 2 mHealth apps as examples-Babylon and Ada. We selected these 2 apps as they were both widely distributed during the COVID-19 pandemic and make prominent claims about their use of AI for the purpose of assessing user symptoms. First, bias entrenchment often originates from the data used to train AI systems, causing the AI to replicate these inequalities through a "garbage in, garbage out" phenomenon. Users of these apps are also unlikely to be demographically representative of the larger population, leading to distorted results. Second, professional accountability poses a substantial challenge given the vast diversity and lack of regulation surrounding the reliability of AISympCheck apps. It is unclear whether these apps should be subject to safety reviews, who is responsible for app-mediated misdiagnosis, and whether these apps ought to be recommended by physicians. With the rapidly increasing number of apps, there remains little guidance available for health professionals. Professional bodies and advocacy organizations have a particularly important role to play in addressing these ethical and legal gaps. Implementing technical safeguards within these apps could mitigate bias, AIs could be trained with primarily neutral data, and apps could be subject to a system of regulation to allow users to make informed decisions. In our view, it is critical that these legal concerns are considered throughout the design and implementation of these potentially disruptive technologies. Entrenched bias and professional responsibility, while operating in different ways, are ultimately exacerbated by the unregulated nature of mHealth.

Forensic Neurology and the Role of Neurologists in Forensic Evaluations.

Forensic psychiatrists may be asked to opine on neurological evidence or neurological diseases outside the scope of their expertise. This article discusses the value of involving experts trained in behavioral neurology in such cases. First, we describe the field of behavioral neurology and neuropsychiatry, the subspecialty available to both neurologists and psychiatrists focused on the behavioral, cognitive, and neuropsychiatric manifestations of neurological diseases. Next, we discuss the added value of behavioral neurologists in forensic cases, including assisting in the diagnostic evaluation for complex neuropsychiatric diseases, using expertise in localization to provide a strong scientific basis for linking neurodiagnostic testing to relevant neuropsychiatric symptoms, and assisting in relating these symptoms to the relevant legal question in cases where such symptoms may be less familiar to forensic psychiatrists, such as frontal lobe syndromes. We discuss approaches to integrating behavioral neurology with forensic psychiatry, highlighting the need for collaboration and mentorship between disciplines. Finally, we discuss several forensic cases highlighting the additional value of experts trained in behavioral neurology. We conclude that forensic psychiatrists should involve behavioral neurology experts when encountering neurological evidence that falls outside their scope of expertise, and the need for further cross-disciplinary collaboration and training.

Between war and peace: Exploring the role of refugee law in the context of Sudan political conflict

AbstractThe ongoing political turmoil gripping Sudan is fraught with violence between two opposing factions within its military government. This unsettling state of affairs has led to devastating consequences, including large‐scale displacement of people and severe human rights violations, causing dire humanitarian consequences. Against this tumultuous backdrop, we explore how existing refugee law, one facet of international law governing refugees, can help bring relief amidst a volatile conflict zone. Examining complex legal questions ranging from determining who qualifies for asylum status through various geographic considerations to what role states play in securing basic protections for refugees fleeing persecution or war at home will be analysed herein. Further difficulties involving how these complex provisions protect refugees face hurdles due to practical factors like lack of resources or security concerns will be considered thoroughly. While recognizing that instituting legal reforms alone is not enough to address these complex crises due to various challenges of reasons ranging from political to practical, this paper concludes by putting forth strategic recommendations for improvement aimed towards bolstering resources and support mechanisms required for refugees across the region to ensure they can seize‐hold of eventual solutions.

Goodbye to Afghans

The Genealogies of complicity and struggle between Afghanistan and Pakistan date back to a single-page Agreement of 1893 (Duran line) and the invasion of the Union of Soviet Socialist Republics (USSR) in 1979. The squabble of the World towards Pakistan with its inglorious policy to deport undocumented 1.7 million refugees to a war-stricken country is inhuman and wrong and leaves them as political pawns. The Mass Exodus of Afghan Refugees and the anti-immigrant policy of Pakistan trigger some legal questions: Why is Pakistan deporting Afghans at this point? Who hears the voice of suffering at the dark noon? What happens next to these deportees? The existing article is poignant in examining the status of human rightslessness of sans-papiers under the human rights paradigm in Pakistan. In tandem with this, the paper also discusses the human rights dimension from the lens of the perplexing situation that prevails in Afghanistan. This article is percolated by axiomatic development in the theory and practice of human rights supplanted by wretched migrants. Thus, this paper offers a series of fragments of thought concerning some ways of understanding the changing human rights paradigms in Afghans.

Current Tasks and Issues of Judicial Financial and Economic Examination in Bankruptcy Cases in Criminal and Arbitration Proceedings

The author examines current issues of the appointment and production of judicial financial and economic examinations in bankruptcy cases. The article provides statistics on the consideration of bankruptcy cases in the Russian Federation, considers data on the initiation of criminal cases, appeals to the court to declare the debtor bankrupt, as well as other cases (challenging transactions in bankruptcy, bringing persons controlling the debtor to subsidiary liability). The conceptual apparatus of the judicial financial and economic examination in bankruptcy cases is considered, the goals are defined, the concepts of the task of the judicial financial and economic examination in bankruptcy cases are revealed, a list of questions is developed and justified for each specific task. The general tasks of forensic economic examinations are defined, as well as typical tasks related to financial and economic examination in bankruptcy cases. A list of questions for the following expert tasks has been developed and justified: study of the financial condition of the organization, study of the solvency and financial stability of the organization and the impact of individual operations on it, study of the organization and the impact of individual operations on it, identifying the presence (absence) of signs of deliberate and fictitious bankruptcy, identifying the presence (absence of) signs of deliberate and fictitious bankruptcy of the organization. The article discusses issues of competence of an expert in bankruptcy cases, distinguishes between issues of forensic accounting and financial and economic examination in bankruptcy cases. Recommendations for formulating questions before an expert economist in bankruptcy cases have been systematized. Typical errors in formulating questions to an expert are considered, and the inadmissibility of raising legal questions to an expert, as well as questions related to the assessment of the actions of officials, is noted.

Banned: Fishing in the Data Tax Lake?

Data gathering and analysis are valuable tools in the global fight against tax fraud. However, their use raises significant legal questions, particularly regarding the extent to which it could qualify as a prohibited fishing expedition. Previous research identified two main characteristics of fishing expeditions: speculation and excessiveness. Judges and scholars claim fishing expeditions are prohibited even though a specific legal ground for this prohibition is lacking. Therefore, it is crucial to examine the legal grounds that can be relied upon to assess the legitimacy and limitations of (big) data tax audits in relation to the prohibition of fishing expeditions.By analysing case law from the Council of Europe, the European Union, Belgium and the Netherlands, this article identifies the implicit legal grounds that support the prohibition of fishing expeditions. It demonstrates how the prohibition is incorporated into the human rights framework, the general principles of good governance and the relevance criterion embedded in European and national legal provisions with regard to investigative powers of tax administrations, providing a comprehensive perspective on their rationale to prohibit fishing expeditions.

Penyelesaian Sengketa Sertifikat Ganda Kepemilikan Hak Atas Tanah

This writing aims to the Concept of Settlement of Land Rights and also to find out how the Settlement Procedure for Proving Land Rights that Occurs Due to Double Certificates. The research method used to study this research problem is normative law research. Normative research is the process of finding legal rules, legal principles, and doctrines to answer legal questions. The term independent and independent variables are still foreign in normative research because normative research does not have to start with a hypothesis. This study is a normative legal research in which researchers conduct analysis to resolve disputes over ownership of double certificated land. The conclusion of this writing is that there are several ways for the Concept of Land Rights Ownership, including: (1) Laws and Regulations on Land Ownership and Registration, (2) Land Registration Reasons, and the (3) Land Rights Status. In this writing, there is also a Procedure for Solving the Proof of Land Rights that Occurs Due to Double Certificates, the process of which is divided into several settlement theories, namely there is a Free Proof Theory and a Bound Proof Theory.

Social Media Archiving in Practice: A Troubled Landscape in Review

ABSTRACT The following article provides a brief overview on the current state of institutional archival practices of social media content and explores some of the key challenges the field continues to face. Social media use has developed into the leading means of human communication in the world, with billions of people utilizing multiple platforms on a daily basis to both document their individual lives and forge digital communities around various interests. Users generate exorbitant amounts of ephemeral content in the form of text, photos, videos and more across multiple platforms which are, by design, unarchivable. As a result, libraries, archives, and other cultural preservation institutions have struggled to find the proper technological tools to capture the sheer amount of data being generated, while also grappling with a variety of methodological, ethical and legal questions that the practice raises. All the while, the amount of social media data containing potentially important cultural heritage artifacts of our time continues to grow and remain at risk of being forever lost, altered or altogether erased. This article looks at several notable examples of major social media data loss that have already taken place in recent history and examines one of the largest institutional attempts to preserve social media thus far in the Library of Congress’ Twitter Archive. By exploring some of the key challenges that arose during this attempt which ultimately grounded the project, this article aims to better understand what continues to keep the practice of social media archiving at bay, and what large scale changes might be necessary to make any further progress in the field.

Intellectual property and creative freedom within the cultural vernacular

ABSTRACT In a world dominated by the distribution of global media franchises, what are the impacts on creativity when intellectual property law seeks to control what can and cannot be written? The development of modern distribution mechanisms that allow corporations to distribute copyright protected works such as film franchises globally and across many different media has had a significant effect on the cultural vernacular. Generations are now growing up with storyworlds that are the intellectual property of multinational businesses, rather than within the public dimain (as might previously have been the case with folk stories and religious texts). With Jenkins’ ideas of Participatory Culture perhaps sidestepping the consequences of intellectual property ownership, this paper looks to Hyde and others to question whether current intellectual property discourse properly acknowledges the issue of how the pervasive marketing of ringfenced storyworlds is affecting the creative community’s relationship with the cultural vernacular when seeking to create commercially exploitable work. This paper argues that moral as well as legal questions must be raised regarding the extent to which corporations should be effectively allowed to own elements of the collective story consciousness and, as a consequence, to exert control over the creation of new works.

ChatGPT, I have a Legal Question? The Impact of Generative AI Tools on Law Clinics and Access to Justice

The launch of ChatGPT in November 2023 will perhaps be come to be one of the defining moments in our relationship with technology. The rapid pace in which generative artificial intelligence (GAI) is developing and the rate in which it is being adopted, is transforming how we interact with technology, and poses new risks and challenges. As GAI tools such as ChatGPT are used by non-lawyers, this article explores the implications of generative AI in the provision of legal advice. This research examines the performance of GAI tools in providing legal information and advice in response to commonly experienced legal problems and finds there are significant errors and mistakes with the responses it produces. There is a critical need to improve access to justice and this article explores the implications for non-lawyers in using GAI tools and considers the risks of reliance on GAI advice. The article goes on to examine the utility of generative AI in clinical legal education to consider whether there is a role for responsible use of GAI in law clinics. It suggests the adoption of GAI tools has the potential to increase the capacity of law clinics, and enhance employability skills, but law schools need to be cognisant of the risks of GAI.

Cross-border surrogacy and the European Convention on Human Rights: The Strasbourg Court caught between “fait accompli”, “ordre public”, and the best interest of the child

Surrogacy is a form of family creation that raises many medical, ethical, and legal questions. This article examines how the European Court of Human Rights (ECtHR) deals with the issue of cross-border surrogacy and its legal consequences in its recent case law. It will demonstrated that the Strasbourg Court has developed a nuanced case law that leaves it in the first place to the national authorities to deal with the complex issue of surrogacy, whereby it is nevertheless clear that further to the Strasbourg case law even if legislators rule out the possibility of surrogacy on their territory, they will have to find solutions to “‘regularise”’ the de facto situation of the child, taking into account its best interests.