Legislative Intent Research Articles

Consumer Confusion: The Sole Focus of Trademark Law

Abstract: In recent years, the expansion of the global marketplace, driven by the digital revolution, has led to a growing complexity in trademark disputes. The balance between protecting intellectual property and preventing consumer confusion has become increasingly delicate. Traditionally, trademark law was designed primarily to prevent consumer confusion and ensure fair competition. However, with the introduction of the dilution concept, this focus has shifted, resulting in expanded trademark rights that can inhibit innovation and free competition. This paper revisits the original intent of trademark law, advocating for a refocus on consumer confusion as the core principle. Through an examination of legislative intent, theoretical underpinnings, and case law, this paper demonstrates the need to reorient trademark protections to ensure they serve the broader goal of market fairness and economic development. This research highlights that excessive protection of trademark rights can lead to monopolistic practices, which ultimately harm both consumers and market competition. It contributes to the ongoing discussion about how to balance trademark rights with consumer protection, aiming to guide future legal reforms that foster both innovation and competition.

Analysis of the Liability Principle of Guardians in Article 1188 of the Civil code

Abstract: The imputation principle of guardian's responsibility stipulated in Article 1188 of the Civil code is not clear. The academic community has debated whether the imputation principle is fault presumption responsibility or Strict liability since the era of the General Principles of Civil Law. Although the mainstream view holds that the guardian's responsibility is Strict liability. This article attempts to focus on the legislative purpose of this article, and with the help of the research results of Comparative law, to prove that the guardian's responsibility is the responsibility of fault presumption, and fault presumption is in line with China's national conditions. Finally, it proposes relevant paths to assist the judicial practice of this article.

Beyond Legislative Intent

Abstract There is a widely held view that legislative intention determines the meaning of a statute. The focus of this article is meaning in the sense of full linguistic content, which may not be the same as legal content. Linguistic intentionalism appears to have its greatest appeal when a statute has a partly implied linguistic meaning. It seems natural to suppose that the part of the meaning that is implied by the explicit wording in the statute is determined by an intention of the legislature—roughly, what the legislature intended to imply. The purpose of this article is to present some new reasons to doubt linguistic intentionalism and to offer an alternative for a particular kind of implied statutory meaning that some philosophers of language call implicitures. Rather than legislative intention, the meaning of implicitures is metaphysically determined by intention-free pragmatic linguistic norms, the grasp of which is part of the language competence of ordinary law subjects. The use of these norms, in combination with certain facts about background social practices and other conventions, generates implicitures that may be inconsistent with actual communicative intentions. These intention-free pragmatic norms, and the implicitures they generate, are explanatorily prior to the fact—if there is such a fact—of what impliciture it is reasonable to infer that the enacting legislature (or the legislators collectively) intended. Reference to legislative linguistic intention (actual or reasonably imputed) is thus explanatorily inert.

Interpretation and Application of General Anti-Avoidance Rules after BEPS and ATAD: Nordic Perspectives

This paper compares general measures against tax avoidance and the design of general anti-avoidance rules (GAARs) in Denmark, Finland, Norway, and Sweden. It focuses on aspects such as tax benefits, tax purposes, economic substance, and breaches of legislative purpose. The paper also examines potential compliance issues between national GAARs, tax treaties, and the European Union’s Anti-Tax Avoidance Directive (ATAD). The analysis highlights variations in how the national GAARs apply economic substance considerations and the level of pragmatism allowed when assessing conflicts with the purpose of the circumvented legislation. Additionally, it shows that differences in the wording of the GAARs, such as requirements related to tax purposes, do not necessarily result in practical differences due to other GAAR elements reducing or nullifying them. For similar reasons, the authors conclude that compliance issues between the national GAARs and the ATAD GAAR’s requirements are unlikely, despite some differences in wording. Whilst focusing on the Nordic region, the paper offers insights relevant to broader international contexts, as the diverse approaches, distinctions, and issues identified mirror tax developments worldwide.

Nonarbitrability and Mandatory Rules: Brothers, Not Twins

Notwithstanding the lack of clear legislative intent, Belgian judges have unilaterally prohibited the arbitration of exclusive distribution disputes, unless a specific Belgian pro-distributor statute was applied or unless similar substantive foreign rules were applied. However, in 2023, the Court of Cassation finally reversed its jurisprudence. Yet, the syllogism underlying this longawaited reversal remains unsatisfactory. It mistakenly equates a conflict-of-laws issue concerning mandatory rules with questions of nonarbitrability under international arbitration law. Such an overly simplistic assimilation is inappropriate in many respects. It dilutes the tailored legal standard applicable to international arbitration into a lesser question of applicable rules. It unduly prevents a subject matter from entering ratione materiae into the arbitration field. Upon closer examination, it conflates two substantively different gateways to arbitration: the nonarbitrability doctrine (Article V(2)(a) of the New York Convention) and the public policy exception (Article V(2)(b) thereof). In so doing, it needlessly erodes confidence in the arbitral process, which is based on parties’ autonomy, and violates the principles of judicial non-interference in international arbitral proceedings and of competence-competence. In essence, regardless of the pro-arbitration outcome in the case at hand, this flawed syllogism violates the New York Convention’s straightforward language and pro-arbitration ethos by potentially generating unnecessary, unforeseeable, and improper exceptions to arbitration.

Legislative Purpose — The Unwritten Criterion in Classifying Goods: A Case Study of Israel Law

The International Convention on the Harmonized Commodity Description and Coding System (HS Convention) or HS, which seeks to establish uniform rules for the classification of products for customs and indirect tax purposes, is considered a resounding success. Its main objective is to ensure that a given product is classified in the same way in all World Customs Organization (WCO) member countries. The HS Convention does not specify the duty rates on each product, leaving it to the discretion of the member states, nor does it consider the legislative purpose of each country — to tax or exempt a product. This paper examines the issue of legislative purpose and concludes that considering the domestic legislative purpose when classifying leads to a lack of uniformity in the classification method and undermines the principle underlying the HS Convention. The issue has not been widely discussed in the literature; therefore, this paper makes a novel contribution to the literature on this topic.

Intent vs Reality: Dehumanization in the South African Corporate Landscape

Thirty years after apartheid’s abolition and the ascension of a new democratic leadership, South Africa continues to grapple with the discriminatory legacy of apartheid. Measures introduced by the post-apartheid government to combat historical marginalization, including legislative initiatives like affirmative action laws and diversity management policies, encounter inherent structural barriers within South African organizations shaped by prevailing cultural norms. Despite the legal framework in place, black employees often endure dehumanizing treatment, finding themselves sidelined from decision-making channels and lacking access to avenues for career advancement and professional development. This essay aims to better understand the lived experiences of South African workplace employees through the lens of organizational dehumanization. This work underscores the urgent need to reimagine transformation efforts in South Africa, moving beyond numerical representation toward a more inclusive work environment that promotes genuine empowerment. It emphasizes the importance of developing holistic diversity management strategies, implementing effective mentorship and sponsorship programs, and providing opportunities for meaningful participation and decision-making by black employees. Such an approach will ensure that legislative intentions are translated into practical workplace realities, ultimately fostering true equality and empowerment.

Children's right to participation in Swedish child welfare – The extent, nature and determinants of child interviews during investigations

BackgroundChildren's right to participation in child welfare decision-making is highlighted in law and research. However, there is a lack of comprehensive empirical research on how such participation is actually fulfilled. ObjectiveThis article aims to describe and analyse the extent, nature and determinants of children's participation in child welfare investigations in Sweden as well as to discuss barriers to participation. Participants and settingThe dataset comprises a cohort of 2123 children investigated during 2022 across eight municipalities in Stockholm County, Sweden. MethodsThe study is based on cross-sectional data where the responsible child welfare workers served as informant in a survey focusing child and case factors concerning 2123 children subject to child welfare investigations. The data is analysed by using descriptive and binary logistic regression analyses. ResultsIn approximately 75 % of the child welfare investigations, child welfare workers held interviews with the child (with or without parental presence) while individual child interviews were carried out in about 50 % of the cases. Multiple interviews (≥3) occurred in 14 % of the cases. Reasons for not interviewing children included finding interviews to be unnecessary, perceiving the child as too young, and reluctance by the child as to participation. Investigations involving older children and referrals related to abuse increased the odds for participation. ConclusionsThe study suggests that more children are interviewed by child welfare authorities than found in previous studies, but that there still is a gap between the legislative intention to facilitate child participation and the actual state of child welfare practice.

Balancing Equitable Enforcement and Property Rights: Revisiting Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 of India

Abstract The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter “MWPSC Act”) of India, specifically section 23, addresses the responsibility of heirs towards their parents’ maintenance and the consequences of failure in such obligations. This article critically evaluates the interpretation and application of section 23, focusing on the judicial reasoning, implications on property rights, and comparisons with international jurisprudence. The article proposes a balanced approach to ensure equitable enforcement while safeguarding third-party interests and the broader legal landscape. It advocates for a nuanced understanding of the statute, emphasizing the need for explicit conditions, limitations on resorting to section 23, and harmonizing maintenance obligations with property rights. Drawing from foreign legal systems, this article underscores the uniqueness of Indian legislation while highlighting the absence of similar provisions in other jurisdictions. By analysing the interpretation and application of section 23 of the MWPSC Act, this article contributes to the broader discourse on balancing legislative intent, public policy, familial obligations, and property rights in the context of elder care in India.

Steering responsible innovation: the impact of EU REACH legislation on the novelty and toxicity of chemical inventions

ABSTRACT This study investigates the influence of EU Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) legislation on the technological trajectory of the chemical industry. Focusing on the Substances of Very High Concern (SVHC) list, this study used a novel dataset of chemical patents and structures filed at the European Patent Office (EPO) over the period from 1990 to 2016. A staggered difference-in-differences approach with inverse probability weights was used to measure the impact of the SVHC list on the novelty and toxicity of chemical patents. The analysis revealed a substantial increase in the chemical novelty of patents after the introduction of the SVHC list. Simultaneously, a significant decrease in the toxicity of these patents was observed, underpinning the legislative intent of REACH. These findings highlight the ability of regulatory frameworks to strategically steer innovation, reinforcing the alignment between technological advancement and the overarching goals of responsible and sustainable development.

Restrictions of internet access in Turkey: legislation, methods and practice

The opportunities presented by the internet expand certain rights while also leading to the violation of others. States are obligated to establish cybersecurity for their citizens and protect personal rights against various infringements. However, this rationale can sometimes be used to obscure digital authoritarianism. Therefore, the age-old dilemma of balancing freedom and security is at the heart of internet law. It is inevitable that methods such as internet access restrictions, which every state resorts to, must be evaluated comprehensively in their legal, technical, and practical dimensions to enable more accurate analysis of national practices. This study analyzes the justifications for internet restrictions in Turkey compared with their implementation. Contrary to what is envisaged by legal regulations, it has been found that precautionary measures are mostly issued by administrative authorities. There is inconsistency between lower and upper judicial authorities, and judicial decisions are rendered ineffective by the legislative branch. The methods of restriction are applied ambiguously. Some regulations deviate from the legislative intent, while others are rendered ineffective by the administration. To solve structural problems, action is needed from the legislative body, and addressing implementation issues requires a more fundamental paradigm shift.

China: 2023 Revision to China’s Marine Environment Protection Law: Interpretations and Implications

Abstract On 24 October 2023, the 6th Session of the Standing Committee of the 14th National People’s Congress published the newly revised Marine Environment Protection Law of the People’s Republic China (“2023 Revised China’s mepl”), which became effective on 1 January 2024. Compared with the previous version, the 2023 Revised China’s mepl mainly involves four changes. Firstly, the 2023 Revised China’s mepl clarifies the legislative purpose and basic principles; secondly, it further strengthens the government’s supervision and control over the marine environment; thirdly, it improves the system design of marine environmental management; fourthly, it incorporates stricter legal liability for violations. It is expected that the 2023 Revised China’s mepl will not only help China address many environmental problems and fulfill its legal obligations under treaties with respect to the marine environment, but also contribute to the advancement of global ocean governance. However, it is crucial to acknowledge that further efforts are necessary to achieve the legislative objectives of the 2023 Revised China’s mepl.

The STAR Compass to Guide Future Pharmacovigilance Based on a 10-Year Review of the Strengthened EU System.

This article reflects on the 2010 pharmacovigilance legislation of the European Union (EU). Its legislative aim of better patient and public health protection through new responsibilities for pharmaceutical companies and regulatory bodies is considered to have been achieved and is well supported by the good pharmacovigilance practices 'EU-GVP'. For future progress, we set out a vision for high-quality pharmacovigilance in a world of ongoing medical, technological and social changes. To deliver this vision, four principles are proposed to guide actions for further progressing the EU pharmacovigilance system: synergistic interactions with healthcare systems; trustworthy evidence for regulatory decisions; adaptive process efficiency; and readiness for emergency situations (the 'STAR principles'). Like a compass, these principles should guide actions for building capacity, technology and methods; improving regulatory processes; and expanding policies, frameworks and research agendas. Fit for the future, the EU system should achieve further improved outputs in terms of safe, effective and trusted use of medicines and positive health outcomes within patient-centred healthcare.

Legislative measures and legislators’ motives

This review of Wojciech Sadurski’s Constitutional Public Reason explores the relationship between the legislative measures voted on by legislators and their motivations for so voting. The relationship between such measures and motivations is examined by reference to GEM Anscombe’s famous example of a man at a pump to illustrate the different descriptions that may be given for a human action. Where the relevant action requires the participation of more than one person, only that aspect of each person’s plan of action that is shared with the others can be ascribed to them jointly, suggesting that the purpose of legislation does not encompass every motivation of the diverse legislators that voted for it.

Road surface cold-mixed cold-laid recycled carbon-reduced pavement material research

ABSTRACT In recent years, the concept of sustainable circular economy has emerged due to the increasing awareness of environmental protection. In 2015, the United Nations proposed the ‘2030 Agenda for Sustainable Development’ and developed 17 sustainable development goals, with Goal 12 being ‘Ensure sustainable consumption and production patterns by promoting a green economy and significantly reducing waste generation through prevention, reduction, recycling, and reuse’. In 2015, Taiwan passed the ‘Greenhouse Gas Reduction and Management Act’ (referred to as the GHG Act), with the legislative purpose of addressing climate change and fulfilling environmental responsibilities. In 2022, the Ministry of Economic Affairs formulated the ‘2050 Net Zero Emissions Pathway Plan’ with four major strategies and two foundations (technology research and development and climate legislation) as the main focus. The four major strategies include industrial transformation, encouraging the manufacturing sector to focus on process improvement and energy conversion, and introducing carbon reduction technology in the construction sector to achieve a circular economy. As Taiwan’s road construction area continues to grow, a new pavement material called ‘Cold-mixed cold-laid recycled carbon-reduced pavement material’ has been developed. This innovative material reduces carbon dioxide emissions by eliminating the need for on-site fuel heating during construction. It saves energy and helps to reduce greenhouse effects, aligning with environmental protection goals.

CONTOURS OF JURISDICTION UNDER INDIAN ARBITRATION ACT

The Arbitration Act, 1940 had no provision which allowed the Arbitral Tribunal to make a decision on its own jurisdiction like Section 16 of the Arbitration and Conciliation Act, 1996 the Arbitral Tribunal has been granted the power to make a ruling on its own jurisdiction. Section 16 (1) of the Arbitration and Conciliation Act states that the Arbitral Tribunal may rule on its own jurisdiction, including ruling on any objection with respect to the existence or validity of the arbitration agreement. The legislative intent underlying the 1996 Act is to minimise judicial intervention in the arbitral process and nominate the arbitrator without wasting time, leaving all contentious issues to be decided by the arbitral tribunal itself Section 16 of the Arbitration and Conciliation Act incorporates the principle of "Compétence-Compétence" or "Compétence de la recognized", is a doctrine that empowers an arbitral tribunal to rule on its own jurisdiction, including ruling on any objection with respect to the existence or validity of the arbitration agreement. It is closely related to rules regarding the allocation of jurisdictional competence between arbitral tribunals and national Courts and to rules concerning the nature and timing of judicial consideration of challenges to an arbitral tribunal’s jurisdiction. The doctrine empowers the arbitrators to decide on their own jurisdiction. The ruling passed in SBP & Co. vs. Patel Engineering Ltd. chipped away the importance of the Kompetenze-Kompetenze principle incorporated in Section 16 consequently, the 2015 Amendment inserted Section 11(6A) in order to restrict the powers of the courts to merely examining the existing of an arbitration agreement. The 2019 Amendment omitted Section 11(6A). now after coming of so many decisions regarding this matter the scope and area of jurisdiction of arbitral tribunal has opened many wings of debate and this chapter is an attempt to discuss all these dimensions

Exploration on the Legal Application of Punitive Damage System for Tort of Ecological Environment Damage–Taking Article 1232 of the Civil Code as an Entry Point

The rule of law for the ecological environment is in rapid development, and article 1232 of the Civil Code establishes the system of punitive damages applicable to the ecological environment, which is a significant development of China’s environmental tort liability system. However, the basis for the construction of the system of punitive damages and the ambiguity of the legal provisions themselves bring uncertainty in the application of the law. From the legislative purpose, the background of the legal system for a deep understanding of the function and characteristics of the punitive damages system, and then clarify the basis of the right to claim the qualification of the subject of the application. Through the existing legal provisions and empirical statistical data, the contradictions of the ecological environment infringement compensation system are solved, and the gap in the calculation standard of punitive damages is made up. Finally, from the liability system as a whole, to promote the ecological environment damage tort liability into the overall liability system to consider, in order to realize the punitive damages system responsibility for comprehensive, rationalization of the system to provide the basis.

간호대학생의 간호법 제정에 대한 인식

Objectives The purpose of this study was to identify the perceptions and types of nursing students' nursing law enactment through a Q methodological approach, and to analyze the characteristics of each type. Through this, an attempt was made to help nursing students understand the enactment of nursing laws correctly and to provide basic data for suggesting the direction of nursing education. Methods In order to construct the method Q population, a written interview contents of nursing students' perceptions of nursing law enactment and a literature review related to nursing law enactment were conducted. Based on the results derived through this, the Q population was constructed, and a total of 34 Q sample statements were derived through the process of organizing statements with unclear or overlapping meanings. The Q sample statements were classified by the Q principle, which forced 45 nursing students to classify them in the normal distribution table on a 9-point scale, and the final collected Q classification responses were coded as numbers and analyzed using the pc-QUANL program. Results As a result of the study, five types of perceptions of nursing students about the enactment of nursing laws were identified. The first type was ‘guaranteed follow-up procedures of nursing law’, the second type was ‘wanted to guarantee nursing expertise in nursing law’, the third type was ‘cognition type of difficulty in enacting nursing law’, the fourth type was ‘a smooth resolution wish type’, and the fifth type was ‘confirmation type of the purpose of legislation of nursing law’. Conclusions Based on the results of this study, it is expected that it will serve as a basic data for suggesting the direction of nursing education that helps nursing students understand the enactment of nursing laws correctly, pays attention to the legislative purpose and content of nursing laws as a prospective nurse, and helps them recognize them clearly. Furthermore, it is thought that it can be used as basic data for future nursing policy activities.

Addressing Criminal Liability for Misuse of Trade Secrets Under Australian Law: Is the Current Legal Framework Adequate to Protect the Interests of Owners of Trade Secrets?

The emergence and dominance of knowledge-based economies have heightened the importance of trade secrets as a “currency” for attaining competitiveness in the market and driving innovation. Yet espousing policies to govern trade secret protection, especially in the criminal law sphere, was not something on which legislative and regulatory policymakers traditionally focused. Recent legislative incentives at a global level have caused the tide to shift and, after decades of being somewhat neglected, the questions pertaining to criminal liability for trade secret misuse are finally gaining attention. The Australian response to recent initiatives ensued in 2018 with the enactment of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) (“EFI Act”) which introduced the first statutory provisions dedicated to criminalisation of state-sponsored theft (economic espionage) of trade secrets. This Act, however, does not provide a comprehensive legal framework to address criminal liability for trade secret misuse, as it leaves outside the scope of its regulation the criminalisation of the theft of trade secrets by individuals for their own benefit. This paper analyses the adequacy of the Australian legal regime concerning criminal liability for trade secret misuse. The analysis is informed by a comparison of the legal provisions of the Australian trade secret regime with that adopted in the United States (“U.S.”) which currently offers a comprehensive framework of protection and criminalises economic espionage as well as the theft of trade secrets. This comparative analysis serves to determine: first, whether the “one way” avenue of statutory protection under Australian law suffices to protect the interests of the owners of trade secrets; and, second, whether a potential reform of the regime designed to include dedicated statutory provisions to criminalise the theft of trade secrets, as is the case in the U.S., could potentially afford a more adequate protection of the interests of trade secret owners.

Defending Aggregated Legislative Intent

Defending Aggregated Legislative Intent