Legislative Conflict Research Articles

Legislative Conflicts on Religious Regulations: A Case Study in the Province of South Kalimantan, Indonesia

Legislative Conflicts on Religious Regulations: A Case Study in the Province of South Kalimantan, Indonesia

Problem aspects of adoption in civil proceedings of Republic of Kazakhstan

The relevance of this study was conditioned by the reduced level of effectiveness of one of the key social institutions due to the presence of problematic aspects and conflicts of legislation. In this regard, the purpose of this study was to analyse the problematic aspects of the current adoption procedure under the current legislation of the Republic of Kazakhstan. The study employed several methods of scientific cognition, namely logical analysis, formal- legal, functional analysis, dogmatic, legal hermeneutics, and others. A study of statistical data on the total number of registered orphans revealed that the current figures are still quite high; however, the number of children raised in orphanages is declining. This study investigated the legislative acts that thoroughly regulate the procedure and order of adoption, namely the Convention on the Rights of the Child, the Civil Procedural Code of the Republic of Kazakhstan. It was noted that a significant role in adoption cases is given to the decisions of the plenums of the Supreme Court of the Republic of Kazakhstan, which serve as a guide for the courts in considering and resolving civil cases and are applicable to different proceedings. It was also found that the national legislation of the Republic of Kazakhstan does not make provision for such a procedure as pre-adoption, compared to the foreign practices of some countries. No less important is the analysis of the adoption procedure for found and abandoned children by foreign nationals. The practical value of the obtained results lies in providing a detailed characterisation of the mentioned process and offering some recommendations for its improvement

E-PARTICIPATION IN THE TERRITORIAL COMMUNITIES OF UKRAINE IN THE TIME OF EUROPEAN INTEGRATION PROCESSES: ELECTRONIC PETITIONS

The article examines the processes of implementation and effectiveness of electronic petitions in the context of public participation in Ukraine in recent years. The issue of introducing democratic innovations and e-participation in communities is considered, on the one hand, inextricably linked to the ongoing processes of Ukraine’s accession to the European Union, and, on the other hand, taking into account the challenges and limitations caused by the Russian full-scale war and the introduction of martial law in Ukraine. Electronic petitions are identified as an effective additional mechanism that can serve as a “public voice” at critical moments in the implementation of democratic reforms, recovery and reconstruction processes. Today in Ukraine, petitions are more common at the national level than at the local level. To analyze the state of use of the tool, we collected data from open sources, namely the EDEM digital platform (15 communities), local government websites (7 communities), and an earlier analytical study by the NGO “Chesno Movement”. The study focuses on the key factors that can affect the effectiveness of local governments in directly generating quality policies and implementing such participatory forms on the ground. These factors include security criteria; legislative conflicts caused by the introduction of martial law; physical and psychological exhaustion of employees, which affects the efficiency of service delivery and information; and technical problems. The conclusions note that in the process of effective use of electronic petitions, the key issue is the clear regulation of the procedure for applying the tool in the community charter, as well as the institutional capacity of the local self-government body to ensure a communication campaign on the availability of such a tool and further consideration of the received petitions in accordance with the procedure set out in the charter. Recommendations are made to improve the effectiveness of implementation of participation tools and involvement of citizens in these processes at the local level in general and in the case of electronic petitions in particular.

Annulment Actions and the V4 Member States: Taking EU Legislative Conflicts Before the Court of Justice

<p>The EU Member States have been using the action for annulment to challenge the legality of EU measures while pursuing a range of non-legal, essentially political motivations. This also holds true for the V4 Member States, which have also resorted to annulment actions to judicialize their legislative conflicts within the EU before the Court of Justice. Among the V4, Poland has been the most frequent litigant, using this institutional tool increasingly actively during the last ten years. Poland’s behavior appears to confirm expectations of differentiation among this group of Member States. It also coincides with a period of political change marked by deep conflicts with the EU. The V4 annulment challenges against EU legislative measures usually made a genuine effort to achieve the legal objective of annulling the challenged legal act. However, there is evidence that they also pursued certain political motivations or a combination of them. These could include the securing of gains in domestic politics, avoiding the local costs of an EU policy misfit and/or promoting a preferred policy position, and/or the influencing of EU competence arrangements. In a few cases, the litigant Member State aimed to avoid concrete material disadvantages. Securing a legal interpretation from the Court of Justice that would influence the behavior of other EU actors, or clarify the law affecting the position of the applicant Member State also motivated some of the V4 legal challenges.</p>

The issue of childbirth assistance payments during the care of a child until the child reaches the age of three

It will be provided with a detailed calculation of the amounts of allowance that should be paid by public authorities and which are declared by government bodies as paid but are not actually paid. The study will consider what amounts of assistance are actually received by individuals who take care of a child until the child reaches the age of three.
 It is indicated, I would like to point, out that these fictitious payments, declared by state authorities as assistance paid to individuals caring for a child until the child reaches three years of age, are considered official income for Ukrainian citizens. It is determined, that payment of assistance to a person who cares for a child until the child reaches the age of three and in accordance with the law receives assistance at the birth of a child in accordance with paragraph 7, item 1, part 1 of Art. 4 of the Law [17] is not true.
 It will be proven that the guaranteed allowance provided by the state does not comply with the Legislation and is less than the minimum subsistence level, which creates conditions for the genocide of population.
 We conclude that a study has been carried out and it has proven that human rights have already been violated at the legislative level. There is a violation of the Laws of Ukraine, International documents and the Constitution of Ukraine. This indicates a conflict of legislation, which as a result leads to human rights violations, and as a further result a low standard of living of Ukrainian citizens.
 It is indicated that there is a formal attitude to the Laws of Ukraine due to improper conduct of operational and investigative actions, signs of corruption and professional impropriety. Crimes are covered up, the guilty are not brought to justice.
 It has been established that persons caring for young children before the age of three are deprived of adequate state-guaranteed social protection. There is a conflict of laws. Thus, these citizens of Ukraine are being social destruction by incompetent state officials.

КОЛЛИЗИИ ЗАКОНОДАТЕЛЬСТВА О РЕЖИМЕ ОСОБЫХ УСЛОВИЙ В УЧРЕЖДЕНИЯХ УГОЛОВНО-ИСПОЛНИТЕЛЬНОЙ СИСТЕМЫ

Based on the analysis of the provisions of normative legal acts (the Penal Code of the Russian Federation, the Federal Law «On the Detention of Suspects and Accused of committing Crimes», etc.), a number of conflicts of legislation regulating the application of the regime of special conditions in various institutions of the penal enforcement system (mainly in correctional institutions and pre-trial detention centers) are revealed. Attention is focused on the grounds for the introduction of a regime of special conditions in the institutions under consideration, the organization of their activities, the amount of restrictions imposed on detainees, the procedure for the introduction of a regime of special conditions. Separately, there is a lack of legislative regulation of the introduction of a regime of special conditions in correctional centers.

The problems of defining and applying the concepts of gender equality and gender inequality in Russian law

The article examines the issues of the emergence, development and current state of the scientific problem of defining the concepts of gender equality (inequality), as well as the law enforcement aspect of its solution in the Russian Federation and in foreign countries. The object of the study is public relations between the state and citizens of Russia on issues of equality of rights, freedoms, opportunities for their realization and obligations established by Part 2 of Article 6 and Part 3 of Article 19 of the Constitution of the Russian Federation. The subject of the study is the norms of constitutional (Part 2 of Article 6, Part 3 of Article 19 and paragraph "zh.1" of Part 1 of Article 72 of the Constitution of the Russian Federation), civil (part 1 of Article 12 of the RF IC) and administrative law (Part 2 of Article 3.9 and Part 2 of Article 4.2 of the Administrative Code of the Russian Federation), other normative legal acts and judicial acts defining gender equality (inequality) of citizens. In the course of the work, dialectical, logical, systemic, functional, formal-legal, comparative-legal research methods were used. The aim of the study is to develop a uniform approach to establishing the concepts of gender equality (inequality) in order to eliminate the problems of ambiguous interpretation and conflict of legislation in modern science and law enforcement practice. This goal has determined the need to set and solve the following tasks: 1. Research on the concepts of gender equality (inequality) as legal categories in the Russian Federation and foreign countries. 2. Formulation of uniform definitions of gender equality (inequality). 3. Definition of the main difference between the concepts of gender equality (inequality). 4. Consideration of the possibility of applying the author's concepts of gender equality (inequality) in law enforcement practice and in normative acts. The study showed that there is no single approach to understanding gender equality (inequality) in modern science and law enforcement practice. Most modern concepts of gender equality (inequality) are based on the recognition of the equality of rights and freedoms of men and women. The author of the article puts forward the theory that gender equality is a right guaranteed by the state and international legal acts, freedom, duties and opportunities to achieve them in relation to citizens without gender separation, and gender inequality, on the contrary, acts as a discriminatory sign in relation to citizens depending on their gender.

Участие субъектов Российской Федерации в решении задач местного самоуправления

The article reviews forms of participation of state authorities in solving the problems of local self-government in the context of public authority reform in the Russian Federation. We describe the powers of public authorities of regions in the field of legal regulation of local self-government. We demonstrate the tools for delimiting the competence of the regions and local self-government. We analyse the mechanisms of participation of state authorities in the formation of local self-government bodies. We determine the role of subjects of the Russian Federation in interbudgetary relations. We identify and characterize various types of financial support measures for municipalities. The advantages of legal regulation mechanisms and legislative conflicts are revealed.

Федеральная казна: объект или субъект гражданских правоотношений?

The article examines the conflict and gaps of civil legislation in the definition of the concept of “federal treasury” and the property that can be included in it. A detailed and close analysis of Articles 214 and 1071 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) leads us to the conclusion that the position of the legislator on the use of the term “treasury” remains insufficiently defined; it is used in two different, moreover, in opposite meanings: both as an object of civil legal relations and as a subject. As a result of the study, it is concluded that such a collision is not accidental, it has historical roots. The article also analyzes the features of the composition of the property of the federal treasury. As a result, the authors come to the conclusion that it is necessary to clarify the purpose for the objects of property of the federal treasury.

Zaozao Xu’s case: Chinese women’s appeal for the right to freeze their eggs

China’s regulatory framework on assisted reproductive technologies (henceforth ARTs) has remained unchanged and unchallenged for over two decades, prohibiting unmarried women from accessing any form of ARTs. Section 1 Article 4(1) of the Ethical Principles for Human Reproductive Technologies and Human Sperm Banks explicitly stipulates that ‘couples who do not comply with national population and family planning laws and regulations and single women’ are prohibited from accessing ARTs. However, unmarried men are allowed to freeze sperm regardless of their marital status, constituting direct discrimination against women. Furthermore, significant legislative conflicts exist between local regulations and departmental rules in this area, hindering the consistent application of ART norms in China and substantially limiting the reproductive rights of Chinese women. Zaozao Xu’s case is the first case in China directly challenging the current prohibitive regulations on egg freezing and may signify a crucial turning point in China’s reform of ARTs legislation. This commentary provides an overview of the case and examines various issues associated with the existing regulatory framework, including the vagueness of the legislation and regulation, legislative conflicts in the current framework, deeply rooted discrimination against women, and the regulator’s problematic conception of ARTs. This commentary emphasises the urgent need for China to re-evaluate and reform its ARTs regulatory framework to allow unmarried women to access ARTs, or at least egg-freezing services as the first step.

النظام القانوني للتحكيم الحكومي في التشريع اليمني: دراسة تحليلية

This study explores the topic of government arbitration in Yemen as the primary means of settling disputes arising between government entities. It aims to understand the conditions, procedures, and the formation of government arbitration panels responsible for resolving these disputes. Additionally, the study seeks to highlight legislative shortcomings in government arbitration. The research adopts a descriptive and analytical approach, addressing two main sectionsareas: the nature of government arbitration and the procedures involved in government arbitration. Several key findings emerged from the study, including the mandatory nature of government arbitration, determined by arbitration panels appointed by the Minister of Legal Affairs, with delays in the formation of these panels. The study also identified legislative deficiencies, such as the absence of organized procedures and the failure to specify the executing authority, the duration of the review process, and the possibility of challenging the arbitration decision. To address these shortcomings, the study recommends amending the relevant legal texts, including specifying the executing authority for government arbitration decisions and allowing appeals against government arbitration decisions before the Supreme Court to eliminate legislative conflicts regarding the dispute resolution period.

Legal regulation of the subvention for the provision of state support to persons with special educational needs in Ukraine

The article analyzes the legal regulation of the subvention for providing state support to persons with special educational needs in Ukraine. It is emphasized that when establishing the appropriate mechanism for providing such an inter-budgetary transfer, the legislator does not specify which levels of education are concerned and in which institutions such education can be obtained by persons with special educational needs (this refers to the form of ownership of a higher education institution, its organizational and legal form, etc.) We consider this approach constructive, as it ensures the principle of equality in the exercise of the right to education. It is emphasized that there is a legislative conflict regarding the range of persons who can be granted such a subvention. Thus, some legislative provisions refer to persons with special educational needs. At the same time, part 1 of Article 1033 at first refers to the provision of state support to persons with special educational needs, and then to children with relevant health problems. The author emphasizes that determining the circle of persons with special educational needs who can receive appropriate educational services at the expense of a subvention in this situation is fundamental. Based on the comparative legal analysis of the areas of use of the subvention funds for providing state support to persons with special educational needs, the author states that the areas of funding specified in the Budget Code of Ukraine differ from those specified in the Procedure for granting the said subvention. In particular, the Budget Code of Ukraine provides for such funding as remuneration of specialists on the basis of civil law contracts for the relevant classes or services. At the same time, the Procedure does not contain such provisions. It is quite logical that the Budget Code of Ukraine regulates the main provisions, and the relevant bylaws and regulations detail them. However, in our opinion, conceptually, these acts should correlate with each other. In this situation, on the contrary, this approach makes it impossible to adequately implement the procedure for granting the subvention under study. It is proposed to make appropriate amendments to the legal acts regulating the procedure for granting funds in the form of a subvention for providing state support to persons with special educational needs.

The concept and nature of the occurrence of doctrinal legal errors

The concept and nature of the occurrence of doctrinal legal errors

Ensuring the rights of a victim the course of preventive measures application in criminal proceedings

The article analyzes problems of ensuring the rights of a victim when choosing preventive measures in criminal proceedings. The position has been argued, according to which the victim, his representative and a legal representative have the right to participate in hearing of a motion for the application of preventive measures by an investigating judge or a judge and to appeal the decisions made by the court. It has been established that when adopting the judgement on preventive measures, the rights and legitimate interests of the victim are affected, including those related to the need to protect his personal safety from threats by the suspect or to ensure compensation for material damage caused by the crime, in that case he, his representative and the legal representative have the right to bring to pre-trial investigation bodies, a prosecutor and an investigating judge notice, their position regarding the selection, extension, change, cancellation of this or that preventive measure against the suspect, as well as to appeal the decision. Herewith, the possibility of an appeal cannot depend on whether the victim directly participated in the court hearing. Likewise, the victim and his representative have the right to become familiar with those materials on the basis of which the decision is made. When an investigating judge considers a motion for the application of preventive measures, the victim, his representative, and the legal representative must have the right to file a motion, including the one on the detention of the suspect, on cancellation or replacement of this preventive measure with another, to participate directly in the court consideration of a motion submitted by them or other participants in the petition process, to appear before the court and present their position and arguments, to appeal the decision of the investigating judge to the court of appeal. Proposals are made regarding the expediency of eliminating legislative conflicts by making appropriate normative corrections, namely to supplement Part 1 of Art. 193, Parts 1 and 2 of Art. 331 of the Criminal Procedure Code and Part 3 of Art. 315 of the Code of Criminal Procedure, provisions that will provide the right to a victim, his legal representative and a representative to apply for the choosing, change, cancellation, extension of the preventive measure against a suspect, an accused, as well as to appeal the relevant decision of an investigating judge, a court in the appeal procedure.

Content of the contract as a type of employment contract

The current state of legal regulation of mandatory and additional terms of employment contracts and contracts in Ukraine has been studied and its shortcomings have been identified. It has been specified that a rather long legislative uncertainty regarding mandatory and additional terms of an employment contract and the current conflict of legislation on this issue have led to the existence of different positions in the science of labour law regarding the terms of an employment contract. Scientists’ views on the essence of the content of an employment contract have been analysed.
 It has been proven that the terms of the employment contract should be considered the terms that are drawn up by its parties. Traditionally, such conditions in labor law are divided into mandatory and additional. The terms of the employment contract are recognized as mandatory, without which the content of the employment contract or contract cannot be considered concluded. Those without which the conclusion of an employment contract or contract is possible are considered additional.
 Mandatory and additional terms of the contract have been defined. Mandatory terms of the contract are: place of work; labor function; the moment of the start of the work and the duration of the contract; rights and duties; terms and amount of remuneration; financial support of the employee; labor organization; responsibilities of the parties; terms of termination of the contract. Additional terms of the contract are: term and conditions of the trial; non-disclosure of commercial secrets and other legally protected information; frequency and duration of professional training, retraining and advanced training of the employee; improvement of working conditions, industrial life and recreation; medical and sanatorium provision; social and household benefits and social and cultural services. There is a well-founded need to supplement the Code of Labor Laws of Ukraine with Article 21-2 “Content of the employment contract and contract”, in which mandatory and additional conditions of the employment contract and contract shall be established.

Changes in the legal regulation of criminal proceedings under martial law

Russia’s full-scale war against Ukraine has caused changes in the everyday life of Ukrainians, as well as in the functioning of state bodies and institutions. This has led to relevant amendments and additions to a number of legal acts, including criminal procedure legislation. The rules governing pre-trial investigation and court proceedings under martial law have also been amended. However, the analysis of the Criminal Procedure Code of Ukraine shows that some of the innovations are generally positive, but certain aspects of legal regulation may raise doubts and concerns, and are quite controversial and controversial.
 Under the new rules of pre-trial investigation, investigators and prosecutors can reduce the role of defence counsel, and are allowed not to involve them in all stages of the process or to do so via audio and video conferencing. However, this practice may limit the ability of defence counsel to perform their duties, as they will not be able to be at the scene and will not be able to effectively defend their client at all stages of the investigation. Under the proposed amendments, the prosecutor will receive powers that previously belonged only to the investigating judge, if circumstances make it impossible for the latter to perform his or her duties. However, the law does not provide a clear list of such situations, so the prosecutor will decide whether the investigating judge can perform his or her functions. This leads to a lack of judicial control over the observance of human and civil rights and freedoms and puts the defence at a disadvantageIn addition, such amendments directly violate Article 124 of the Constitution of Ukraine, which prohibits the delegation of court functions and their appropriation by other bodies or officials.
 The investigator and prosecutor may obtain evidence of a person's guilt, which may contradict his or her rights and freedoms. Nevertheless, the court has no right to disregard such evidence, which may lead to possible abuse by the investigator and prosecutor, which may result in human rights violations and unfair sentences.
 The heads of the prosecutor's office and pre-trial investigation bodies are entitled to seize the property of suspects or accused persons without a trial. However, if the criminal proceedings are subsequently closed or the person is found not guilty, the law does not require the return of such property or compensation for its value. This can lead to mass deprivation of property without the possibility of return.
 In this context, there is a need to eliminate legislative conflicts for effective and unambiguous practical implementation of legislative provisions for the purpose of investigating criminal proceedings under martial law.

Working Paper 47: Conflict of interest legislation in Brazil, South Korea and the European Union

This Working Paper presents international case studies of legal frameworks addressing conflicts of interest and highlights common challenges, opportunities and lessons for practitioners and other interested stakeholders. The report covers three contexts: two national (South Korea, Brazil) and one supranational (the European Union). 
 The analysis is based on the international standards in the 2020 guide Preventing and Managing Conflicts of Interest in the Public Sector, produced by the World Bank Group, OECD and UNODC at the request of the G20 Anticorruption Working Group. 
 The Working Paper is published in the context of the USAID Indonesia Integrity Initiative (INTEGRITAS) project, which supports the Government of Indonesia in preventing corruption via enhancing civic engagement and strengthening integrity in the public and private sectors. The case studies and analysis will be of value to anyone interested in drafting, revising or monitoring conflict of interest legislation in any context.

Філософія закону, який не діє

Abstract. The relevance of the study lies in the study of negative trends of real reality in the life of Ukrainian society against the background of the international authority of our state. The problems of not fully effective operation of the law during the period of martial law and the inconsistency of the existing mechanisms for the protection of human rights and freedoms to the needs of citizens were considered. An overview of the restrictions that were introduced during the legal regime of martial law was made. Attention is focused on the unbalanced distribution of the role of the parliamentary-presidential model of interaction of all branches of government in society: the President, the National Security and Defense Council, as well as the Cabinet of Ministers of Ukraine for the purpose of legal regulation of public life in Ukraine. The research was carried out on the basis of a sociological survey conducted in order to determine the assessment of the legal ideology of martial law (128 people). Existing legislative conflicts in the sphere of restriction of the right to freedom of speech and security are highlighted.

Legal Approach to International Cooperation on Cloud Storage of Personal Information

The development of information technology has accelerated the process of globalization and has also internationalized the issue of personal information storage and protection. Personal information can be stored in a cross-border cloud based on the development of Internet technology. However, the separation of the controlling place and the storage place of personal information has brought new challenges to the international regulation of personal information protection. For example, the conflict of legislation, law enforcement, judicial jurisdiction, and the exercise of cyber sovereignty between different countries, etc. In order to strengthen international cooperation on the safety of personal information, it is recommended to promote the sharing of cloud storage of personal information by establishing international self-regulatory organizations, constructing a safety line for the protection of the private rights of information, creating the principle of confirming interests before the usage of information and strengthening the mechanism of punitive compensation in malicious commercial use, etc. It is important to further improve domestic unified legislation and clarify the extraterritorial effects of domestic laws. And introduce data controller standards under the principle of international comity to break the inherent territorial jurisdiction principle. Besides, it is also very necessary to establish and improve the graded and classified management and early warning mechanism for the commercial use of personal information stored abroad. Finally, it is important to take an active part in international negotiations and strive for the right to make international rules on personal information protection.

Religion and law: a vector of interrelationship in modern conditions

The article analyzes the specifics of the relationship between religion and law in modern conditions. The nature of the influence of globalization/glocalization transformations on the phenomena of religion and law is revealed, and the current vector of their interrelationship, the guarantee and provision of the realization of religious rights and freedoms, is established. The peculiarities of the relationship between the norms of international, European and national law and their role in ensuring and protecting religious rights and freedoms are clarified. It has been established that the recognition of democracy as a key form of organization of modern societies contributes to the implementation of effective legal tools for guarantees, ensuring the implementation and protection of religious rights and freedoms, and restoring the value of the religious-legal connection. In this context, problematic issues were considered: defining the limits of religious rights and freedoms; resolution of religious rights conflicts; restoring the value of religious rights and freedoms; correlations of individual and collective religious rights and freedoms; guarantees and provision of religious rights and freedoms of minorities; correlations of national and international law of religious rights and freedoms; restoring the value of religious rights and freedoms.
 Organizational, normative, procedural and other obstacles that prevent the solution of these problems in Ukraine are identified: a) external (full-scale war with the Russian Federation); b) internal (insufficient institutional capacity of executive authorities; low level of effectiveness of judicial branch reform; high level of corruption; politicization of the legal space and the preference of political expediency and populist slogans over the rule of law and the rule of law; conflicts of legislation, etc. It has been established that overcoming these obstacles and solving the outlined problematic issues at different levels of the legal field (international, European, nationwide (Ukrainian)) will determine the establishment of inter-church dialogue and dialogue between the state and the church, which would be based on the principles of tolerance, mutual respect, understanding, observance of freedom of conscience and the right to choose, which will contribute to the democratic progress of Ukraine and its entry into the European family of nations with equal and full rights.