Legal Scheme Research Articles

Expert appraisal of venous diseases

SummaryUnusual features and problems at the expert assessment of vein damages and venous diseases are described, including indications for rational and evidence based diagnostics adapted to the needs. Besides it was an essential concern to point out important actual conceptual changes for the expert assessment in the legal scheme by the German social civil code (Sozialgesetzbuch VI). So the concepts of occupational disability (Berufsunfähigkeit) and of lost of earning capacity (Erwerbsunfähigkeit) don‘t exist in the legal pension scheme since 01st 01st 2001 any more. The idea of the “reduction in earning capacity” (Erwerbsminderung) has been introduced instead. There is still the concept of occupational disability (Berufsunfähigkeit) for the professional supply systems (berufsständige Versorgungswerke) and the private occupational disability insurances – but with different definitions and performances, which have to be taken into account if need be. Since the old definitions still frequently appear at the expert’s activcity, they are represented in these explanations briefly.In general, the scope and contents of expert appraisal records for venous diseases often constitute a sorry example of the general ignorance pertaining to the pathophysiology, clinical medicine, modern diagnostics and the significance of venous diseases, in both the sociomedical context and in occupational health.

YY v TURKEY: INFERTILITY AS A PRE-CONDITION FOR GENDER CONFIRMATION SURGERY

In YY v Turkey, the Second Chamber of the European Court of Human Rights (ECtHR) held that Turkey's refusal, over a period of many years, to authorise gender confirmation surgery because the applicant remained capable of procreating was a violation of the right to private life under Art. 8 of the European Convention on Human Rights. The Second Chamber's judgment acknowledges, and gives practical effect to, the 'physical and moral security' of transgender persons. YY has the potential to revolutionise gender confirming health care in Europe and will hopefully ensure that, where individuals do seek to medically transition, they need only access to treatments that are both necessary and desired. The ECtHR's decision may also impact upon the legal recognition of transgender identities. While not the direct focus of the Second Chamber's assessment, legal gender recognition is a constant theme throughout the judgment, and many of the Court's arguments are equally applicable to legal schemes for acknowledging preferred gender.

El Instituto Federal Electoral y los claroscuros de su diseño institucional, 1990-2008

The Federal Electoral Institute (IFE) wasrecentlyfoundinaseverecrisisderivedfromthedepletion of its institutional structure. While he showed significant progress in the independent electoral administration (mainly in the presidential elections of alternation) its role declined largely because improving its procedural and legal schemes was postponed.

Next Generation Privacy: The Internet of Things, Data Exhaust, and Reforming Regulation by Risk of Harm

The disparities inherent in various national privacy laws have come into sharper contrast as access to information grows and formerly domestic markets become international. Information flow does not adhere to national boundary lines. Increasingly, laws that seek to protect informational privacy do not either. The European Union took a bold approach by limiting access to its markets for those who failed to observe its strict law designed to protect personal information. The 1995 Directive (and 2014 Regulatory Amendment) embody this approach as they: (1) broadly define personal information; (2) broadly define those who process and control personal information; (3) restrict transfer of personal information to those who cannot demonstrate compliance. Tellingly, the Directive does not limit its scope to certain industries or practices, but requires privacy controls across the board, regardless of whether the processor is a healthcare provider, pastry chef or girl scout. To many, the Directive has failed. While the global trend toward adopting laws similar to the Directive suggests that many States value privacy rights, commentators and empirical studies reveal significant shortcomings. The Directive outlaws harmless activities while allowing exceptions that threaten to swallow the rule. It is simultaneously over-inclusive and under-inclusive. National governments enjoy wide latitude to collect and use personal information under the guise of national security. Perhaps more concerning, technology continues to leapfrog. Information privacy is made continually more difficult with each new “app” and innovation. The Internet of Things is more probable than speculative. Radio-frequency identification is a predicate to computer identification and assimilation of everyday physical objects, enabling the use of these objects to be monitored and inventoried by computers. Tagging and monitoring objects could similarly be accomplished by other technologies like near field communication, barcodes, QR codes and digital watermarking, raising the legitimate argument that informational privacy—at least as envisioned in the 1995 Directive’s absolute terms—is impossible. Informational privacy cannot be accomplished by declaring it a fundamental right and outlawing all processing of personal information. To legally realise and enforce a privacy right in personal information, incremental, graduated, and practical legislation better achieve the goal than sweeping proclamations that have applications to actions unrelated to the harms associated with the absence of the right. With information privacy in particular, a capacious claim of right to all personal information undermines legal enforcement because the harms attending lack of privacy are too often ill-defined and misunderstood. As a result, legal realization of a claimed privacy right in the Age of Information should proceed incrementally and begin with the industries, practices, and processes that cause the most harm by flouting informational privacy. Data mining and data aggregation industries, for example, collect, aggregate and resell personal information without express consent. A targeted prohibition of this industry would reduce financial incentives of the most conspicuous violators and alleviate some of the most egregious privacy infractions. A graduated legal scheme also reduces undue and overbroad Internet regulation. While the right to privacy has been recognised and legally supported in one way or another for centuries, it has not faced the emerging and countervailing Age of Information until now. Current omnibus international legislation reflects the impossibility of legally protecting all privacy in the Age of Information; it also illustrates the need for a refined and practical legal scheme that gradually and directly targets the harms associated with privacy violations.

Авторские права как права человека

The article is aimed at searching the authentic legal nature of copyright. The author demonstrates the ways the specific and subtle background of copyright can reveal itself through inner conflicts of interests of author, on the one hand, and users (sometimes going to society in general), on the other hand. More visible are conflicts of laws, since copyright is deprived of the quality of extraterritoriality and bears strongly national features, distinguishing from one legal system to another as to standards of copyrightability of works, possible owners of copyright, subjective rights granted them by law and forming the copyright, legal remedies and general along with specially provided conditions of protection. Those numerous collisions, all of which are familiar and proper to the abovementioned intellectual property scheme, have always gravely stumbled its advancement. They present even deeper danger to the copyright of the new millennium, with its greater possibilities to distribution and use of copyrightable works and, thus, of practical infringement of the rights vested in their authors. As a result, unexpected new conflicts are born by the novels brought into national statutes aiming at resolve the old conflicts, and copyright goes into blind valley without visible way out. Author of the present article believes that the only possible way out be searching the true core of copyright to be taken as the non-variable foundation of every given special scheme, whether concerning list of infringements punished by law, or exonerations from civil liability (such as examples of fair use of copyrightable works). Copyright revealing as human right in every aspect of its existence — whether moral or pecuniary, whether monopoly or subject to restrictions, — such is the basis of copyright able to support legal decisions undertaken in order to favour authors or, incidentially, users or copyright. The author of the present article insists that such unique and whole constitutional foundation be given actually to copyright and be necessarily followed by copyright protection rules in development. Otherwise, separate and autonomously brought amendments could not only turn vain, but also initiate further, and possibly more cruel, conflicts. More than that, the said unique foundation should be undertaken as universal, forming mainstream of international agreements. While illustrating this conclusion, the article focuses on special legal decisions newly appeared in Russian copyright law, very often as the result of participation of the Russian Federation into international agreements and treaties, bi-lateral as well as multilateral. Amongst those novelties is accentuated the status of publicator which is cited in the article as an example of conceptually ill-balanced legal scheme.

한국과 일본의 사회적경제 사회적기업과 협동조합

The purpose of this thesis is to discuss the Social Economy of Korea and Japan; the policies, legal institutions, and future tasks. Compared to Korea, Japan’s policies and legal schemes are not well-developed even though the actual movements are strong. Cooperation between Korea and Japan would benefit from contributions in areas of respective strength, in particular those of policy making systems and actual field activities. Cooperation in these areas would form the new basis for the two countries’ future cooperation.

Assessing the Price of Short-Term Credit

In 1968 Congress passed the Truth in Lending Act (TILA) to require written disclosures of key credit terms for consumers, including finance charges, payment sizes, payment totals, and interest rates mathematically calculated as a defined Annual Percentage Rate (APR). Much has changed in the markets for consumer credit since passage of TILA, including widespread quotation, discussion, and even advertising of APRs mandated by TILA for disclosures. It does not follow, however, that APRs are the only terms important to consumers or even the most useful in all situations. This paper examines current TILA disclosures relevant to short-term-credit customers. Employing examples, it shows that finance charges expressed in dollars can be more useful for these loan customers than APRs, since finance charges are close to theoretically correct for the purposes intended, easier to understand, more directly related to the time period of the loan, and able to differentiate among varying costs of small amounts of short-term credit better than APRs. Although these findings do not argue for a wholesale change in the legal scheme of TILA, they do help explain evidence that dollar charges have long been of greater concern to some consumers than interest rates, why a focus among some consumers on charges expressed in dollars rather than APRs should not be considered disturbing, and that some reasonable renovations might be in order to improve the usefulness of TILA disclosures.

Superficies – from Roman to Ukrainian Law

A notion of superficies under a Roman Law as a material right, which has initially emerged in public relations, and further has formed as a private special property, is explained. The nature of this right was also changing – leasing relationships, being binding, yielded to proprietary relations. Personal right (based on an agreement and bound to a person directly) was replaced by legal regulation of material right (bound directly to an item of property – a lot) as well. This gave substantial advantages in exercising of and protecting such a right by its subject. The process of transformation of the nature of development right came amid (or even was conditioned by) a special remedy, provided by a praetor. This right remained like this on the territories, belonging to Ukraine, until mid 1920s and was regulated in the Civil Code of Ukrainian SSR of 1922 as development right. At the same time its regulating was incomplete, and as the experience has shown, it didn't meet legal schemes of that time, and proceeded forming peculiarities and it received the name “Soviet Law” in following years. The reason for that was empery of a doctrine of state property and practical elimination of private property, all the more so the land title. That is why grounds for existing of such a material right as superficies vanished. A way of superficies regulating in Ukrainian law as prototype of superficies of Soviet times and superficies recovery in the Civil Code of Ukraine of 2003 is traced. In Sowiet Period development was regulated on the territory of Ukraine, but on a lot, belonging to the state. A situation is in a way similar to developer right to use non 2 owned lot for building was formed. But the vital difference was the fact, that natural persons became owners of buildings, constructed on a non-owned lot. It was this fact, which was a problem during superifices regulation recovery in the Civil Code of Ukraine of 2003. Succession of modern Ukrainian superficies civil regulating from its regulating by Soviet Ukrainian Law provides that owners of buildings couldn't be deprived of their right with adoption of the Civil Code of 2003. This implies vital differences between superficies regulating under Roman Law and the law of modern Ukraine. The main one therefrom is the fact, that superficies in fact does not involve ownership right to a building, constructed on non-owned lot. That is why a rather unique situation has formed, when superficies, being a private special property, didn't involve legal regime of construction. Main characteristics of supreficies by means of determining its object, subjects, their rights and obligations, grounds for emerging and protection are given.

Research Guide to European Data Protection Law

“Data protection” law refers to the legal scheme governing the collection, holding, processing, disclosure, and transfer of individuals’ personal information online … and off. Data protection is a fast-changing and increasingly important supranational, international (including transnational), and national topic that touches on a numerous core political concerns, including the freedom of expression, public safety, and international trade. One recent study found that “data privacy laws are spreading globally, and their number and geographical diversity accelerating since 2000.”

Navigating Ambivalence

This commentary explores the sometimes uncomfortable ambivalence that colors most people's experience of disability, either as an aspect of a person's own identity, or as an aspect of a person's interactions with a person with a disability. Disabilities are experienced by many as both a positive and a negative aspect of a person's identity. The commentary describes the work of two disability scholars who have recently explored how this ambivalence affects both legal schemes and parenting decisions, and argue for a 'destigmatizing' of this ambivalence. The framework provided by these scholars illuminates ways in which ambivalence about the experience of disability is revealed by many of the contributors to this collection of essays, and suggests that an open confrontation with this ambivalence may facilitate more satisfactory relationships between people with and people without disabilities.

Legal subsistence hunting trends in the Ugalla ecosystem of western Tanzania

Sustainable legal subsistence hunting has a place in conservation. Nonetheless, the long-term success of such schemes depends on them being well managed. We assessed the effectiveness of legal subsistence hunting in the Ugalla ecosystem of western Tanzania using data from the local legal hunting scheme. The hunting in the ecosystem is conducted within the partially protected areas around Ugalla Game Reserve. The Wildlife Division of Tanzania supervises hunting activities in the area via local conservation authorities. We analysed hunting success (animals shot per quota per licence) across species in the period from 1997 to 2004. Our results revealed that 10,511 and 5,991 animals were licenced and shot, respectively. There were considerable variations in hunting success across wildlife species. With the exception of common duiker (Sylvicapra grimmia), hunting success trends for most of the species were declining. The documented decline in wildlife off-take should be further investigated to ensure the sustainable management of this area.

고출력 전자기파 방호 제도 도입에 관한 연구

Nowadays, national critical infrastructures have been known to be highly vulnerable to the EMP threats which are internationally growing. But their realistic solutions have been not made by the lack of detailed rules and regulations in current laws, however, which cover most of cyber threats. This paper takes a look at the domestic and overseas trends on the EMP protections, and proposes the revision directives of relevant laws and the contents included into the proposed legislation. Among them, the amendment of the current Information Infrastructure Protection Act is considered to be the most effective, including provisions on protected informations, industrial promotions, R&D su- pports, education, etc. Anyway, this paper is expected to be helpful for introducing an effective legal scheme on the CIP against EMP threats. domestic rule.

Medical Uncertainty and Physician Innovation

Uncertainty pervades medical practice. Rapid scientific advances and substantial patient heterogeneity in both treatment responses and value preferences make it impossible for even the most knowledgeable practitioner to confidently identify the “right” option for every patient. Uncertainty is particularly acute when a physician deliberately deviates from generally accepted practices in an attempt to improve patient care. Unlike drug and device manufacturers, innovative physicians are not subject to mandatory public regulation by the FDA or any other government agency. The question of how to regulate physician behavior thus largely falls to the tort system. Innovation by definition involves a departure from customary practice, so adherence to custom in defining the legal standard of care essentially requires physicians to solely bear the liability costs of novel interventions. This regime protects patients from unnecessary risks associated with untested treatments, but may also unduly deter physicians from tailoring individualized treatment plans that address patients’ particular needs and circumstances. This Article proposes a fiduciary framework for regulating medical uncertainty and physician innovation. The proposed approach mandates close scrutiny of the decision-making process but deference to the substance of medical decisions. Under this model, a physician should be held liable for failing to act in her patient’s best interests, taking into account the patient’s unique clinical condition and value preferences. Within these constraints, however, patients should have the freedom to choose – and assume the associated risks and uncertainties – from among a range of reasonable alternatives. If a physician satisfactorily discharges her fiduciary disclosure duties, she should be shielded from liability for providing an innovative treatment that rationally advances the patient’s interests. This legal scheme strikes a desirable balance that respects patient autonomy, minimizes unnecessary risk, and encourages medical progress.

Imperial Inheritances

This essay examines eighteenth- and nineteenth-century inheritance laws in India in order to analyse the intersections between state power, heteronormative reproductivity and colonial structures of race. In particular, I focus on the case of Troup et al. v. East India Company, which involves the estate of Begum Sumroo, one of the wealthiest women in colonial India. I explore the ways in which the normativization of western notions of inheritance, allied with reproductive heterosexuality, worked to undergird the racialized expansion of Empire. I argue that, by law, inheritance and gain came to be reinforced as heteronormative (in its definition, procreative) and patriarchal virtues under colonial rule. Begum Sumroo's place within this legal scheme poses serious challenges to the logic of colonial inheritance. I use the Begum's case to expose the mechanisms through which, in order for colonial rule to take effect, sexual normativity was heightened to secure the goals of territorial expansion, thus yoking the notion of private property to various controls over bodily and sexual privacy. I read the Sumroo case as an instance of counter-colonial juridical claims to inheritance and possession that in their violent suppressions reveal the brutality of British power and the illogic – racial and sexual – of early colonial governance.

Localizing Intellectual Property in the Globalization Epoch: The Integration of Indigenous Knowledge

The search for appropriate modalities for the protection of indigenous or traditional knowledge is a subject of contemporary international law and policy discourse. As a primary mechanism for the allocation of rights over knowledge, Western or conventional intellectual property rights (IPRs) provide the conceptual platform in this ongoing inquiry. However, very serious concerns are raised in indigenous and scholarly circles about the suitability of conventional IPRs to the nature of traditional knowledge. There is almost a consensus that the inadequacy of conventional IPRs in relation to indigenous knowledge compels a look in the direction of a sui generis regime of rights for local knowledge protection. However, the sui generis proposals are drawn within the rubric of conventional IPRs. Protection of indigenous knowledge is always considered in relation to the conventional IP system. This is understandable, because in the global economy conventional IPRs are the primary and formal mechanism for the protection of rights over knowledge. However, little regard is given to the fact that virtually all cultures have their own knowledge-protection protocols or conventions. Fundamentally, such culture-specific protocols are designed to protect knowledge. In that sense, they are functionally akin to Western intellectual property frameworks. Giving due regard to cultural protocols on knowledge protection is different from evaluating such schemes only in terms of their relevance to the conventional IP system. The latter approach undermines the differences in the epistemological narratives between Western and non-Western ways of knowing. In virtually all cases, ways of knowing have correlation to the ways of protection, transmission, legitimization and evaluation of knowledge. An acceptable sui generis mechanism for the protection of local knowledge must be rooted in indigenous episteme. Western IPRs’ inability to address the epistemic dichotomy between Western and indigenous ways of knowing is at the root of its failure to meet indigenous peoples’ yearnings and aspirations for the preservation of their knowledge and its cultural integrity. This is the basis of the “crisis of legitimacy in the intellectual property system”. Spotlighting traditional medicine and the patent regime, this article first highlights elements of the debate surrounding the use of conventional IPRs for the protection of traditional knowledge. It underscores the acknowledged controversy and inadequacies of that approach, and draws attention to the ongoing effort to integrate indigenous knowledge-protection protocols into the IP project. In contrast to the hitherto one-sided focus on the conventional IP system, extant efforts look to draw in knowledge-protection schemes and protocols that exist within indigenous and non-Western customary practices and jurisprudence. These developments mark a more significant step toward a realistic approach to the protection of indigenous knowledge than is offered by the conventional IP system or sui generis options based on that system. This approach depicts a cross-cultural outlook on IPRs. The article then presents an overview of the trend at the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity (CBD). Finally, the article examines the perceived conflict between the centrifugal focus of the attempt to integrate customary regimes for knowledge protection into the IP discourse, and the phenomenon of globalization as symbolized by the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement. The fact that the thrust of the effort to integrate indigenous knowledge-protection protocols into the IP discourse emphasizes the local poses a potential conflict to the current globalization initiative, especially in the IP arena. Even though TRIPs is an attempt to globalize IP, it does not change the status of IP as a subject under national jurisdiction. The effort to integrate knowledge-protection regimes from indigenous and local communities into the IP legal scheme could well have global ramifications. In effecting the legal protection of traditional knowledge, national governments would indeed be within their legitimate powers, both under the TRIPs Agreement and their commitments to various international instruments on the protection of indigenous peoples. The need to integrate indigenous knowledge-protection protocols into IP discourse is a consequence of an indigenous renaissance and resistance that has yielded a logic of epistemological pluralism. Under this pluralism, indigenous holistic and subjective understanding of phenomena or ways of knowing compete for a space within knowledge-protection jurisprudence. This article argues that contrary to popular accounts, this competition is part of the globalization experience. The notion of integrating indigenous knowledge-protection protocols into the IP agenda does not necessarily conflict with the phenomenon of globalization, as many would think. Nonetheless, the integration project is at a nascent stage. It will surely raise a number of questions and concerns. Its relationship with globalization, with which this paper is concerned, is only one of the many issues that confront the cross-cultural momentum on IPRs.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) confirms the Sentencing Guidelines as the axiom of sentencing policy. This indicates the importance of probation services need to respond proactively to this trend by ensuring offender managers (OMs) have a working knowledge of how to interpret and use the guidelines. Changes to community and suspended sentence orders simplify the pre-sentence assessment process and permit more OM discretion to allocate specific programmes to an offender post sentence based on need and present circumstance. The Rehabilitation of Offenders Act is returned largely to its original 1974 values and also extends the range of sentences eligible for rehabilitation. It is, however, the provisions relating to dangerous offenders and licence release that contains the most significant changes. Sentences for public protection are abolished and replaced with the new ‘automatic’ life sentences (ALS) and extended determinate sentence (EDS). The Secretary of State is given the power to amend, by statutory instrument, the release test for IPP and other indeterminate prisoners. The overall effect of the sentencing changes is to return gravity of offence as the primary sentencing tool at the expense of risk factors central to the 2003 Criminal Justice Act (CJA). A new legal aid scheme will now be administered within the Ministry of Justice.

A Study on the Legal Improvement Scheme of Quasi-Tax in Korea

A Study on the Legal Improvement Scheme of Quasi-Tax in Korea

WORKERS’ PARTICIPATION IN MANAGEMENT – A MANUFACTURING INDUSTRY PERSPECTIVE

Allowing workers to take part in management decision making has been always a controversial topic. Management’s prerogatives are the major issue for this controversial. The pressures are experienced by the business leaders due to increasing participation from workers that are once exclusively reserved for management. It is general perception that the management is afraid at legal and quasi legal schemes of participation will increase employees' and trade-unions' influence and can erode managerial control. At the same time if the workers are not allowed to participate in the management decision making process, their performance will come down and eventually which can lead to reduction in management effectiveness or organizational effectiveness. Therefore to ascertain what extent these fears are justified and how the enterprise operating in a democratic framework, age, experience of workers and satisfaction with existing management practices are taken into account for the analysis. From the analysis it is found that there is relationship between Age, Workers Participation and effectiveness of organization, there is no relationship between Year of Experience and Satisfaction with the existing management practice.

Labor Trafficking in the Americas in Context: a Look into the Guest Worker Program

Human Trafficking is a social phenomenon, a crime, a human rights violation and a persistent practice throughout human history. The following pages approach human trafficking from a specific context, both from a concrete regional perspective (migration flows from and to Central and North America) as well as to a labor oriented immigration regulatory scheme. Particularly, the guest worker programs in the United States and Canada. In order to demonstrate how human trafficking occurs not only within contexts of irregular migration or in which legal schemes are absent, but rather how certain migratory regulation programs are fertile ground for human trafficking. Demonstrating how some of the responses and measures being implemented to tackle with human trafficking are being challenged, and how innovative proposals are being developed both by scholars and civil society.

Propuesta de reformas al mercado de valores ecuatoriano

El mercado de valores ha tenido históricamente un peso significativamente inferior al mercado financiero nacional. Ante esta realidad, surge la necesidad de impulsar mediante reforma normativa un esquema legal que efectivamente cumpla con el objetivo de potenciar el mismo, como un espacio de trascendental importancia para la interacción de actores económicos y el consiguiente impulso a la actividad productiva. En este marco, cabe indicar cuáles son los cambios que se sugieren respecto de la institucionalidad actual, los actores intervinientes en el mercado de valores, la inclusión de oferentes de menor envergadura, los diversos títulos comercializables, la transparencia, requisitos y garantías indispensables, entre otros.