Legislative Intent Research Articles

Protection or police harassment? Impacts of punitive policing, discrimination, and racial profiling under end-demand laws among im/migrant sex workers in Metro Vancouver

In 2014, Canada implemented end-demand sex work legislation which leaves the sale of sex under some circumstances legal. However, immigration policies based on discourses positioning sex work as exploitation and migration as trafficking continue to criminalize many im/migrant sex workers. Despite community reports of punitive policing, limited research has explored how police interactions with im/migrant sex workers have impacted labour conditions since this legislative shift. As part of a longstanding community-based Vancouver study, we drew on the conceptual framework of slow violence to analyze 20 in-depth interviews with sex workers born outside Canada. Despite rhetoric positioning im/migrant sex workers as victims deserving protection, participants described experiences of punitive, racialized, and stigmatizing police treatment. Fear of being ‘outed’ as a sex worker and living with precarious immigration status undermined participants' ability to seek police protections; yet when they did seek assistance after experiencing violence/theft, police were unsupportive or discriminatory. Our findings suggest that policies depicting im/migrant sex workers as victims act not to protect them, but to justify targeted repressive, racist policing that severely undermines women's occupational safety. Our results illustrate the harms of policies conflating sex work with trafficking; demonstrate the inherent opposition between legislative aims to protect those who sell sexual services and to abolish the sex industry; and interrogate who the state affirms as a deserving victim. The full decriminalization of sex work, removal of prohibitions on sex work among im/migrants, and community-led alternatives to the criminal justice system are urgently needed to uphold im/migrant sex workers' labour rights.

Безнадежная ко взысканию задолженность гражданина- банкрота: недостатки правового регулирования и практики реализации права

The article analyzes the legal nature of the status of a citizen’s debt, which is considered to be repaid as a result of bankruptcy proceedings. The article considers the relationship between the purpose of bankruptcy legislation and the general rule on the release of a citizen from fulfilling obligations to creditors. The shortcomings of legislation and acts of generalization of judicial practice are revealed, creating prerequisites for violation of the rights and legitimate interests of a bankrupt citizen. Specific legal conflicts and gaps that contribute to the incorrect interpretation of legislation by creditors are highlighted. An assessment is given of the legality of the assignment of the right of claim in relation to the repaid debt, as well as the legality of measures to recover it. Practical recommendations are offered to prevent violations of the current legislation related to succession in relation to the debt of a bankrupt.

State Preemption of Consumer Merchandise and Beverage Containers: New Strategy to Preempt Sugar-Sweetened Beverage Policies?

State legislators passed laws preempting, or prohibiting, local governments from regulating beverage containers. Although the primary purpose of these laws may be to ban local environmental regulations addressing single-use plastics, it is unknown the extent they also preempt public health policies aimed at reducing sugar-sweetened beverage consumption. In 2021, using LexisNexis, we assessed state legislation preempting local control over consumer merchandise and containers. We identified 8 laws (and 16 failed bills) with broad language preempting local regulation of the sale, use, or marketing of multiple container types, including beverage containers. Most legislative activity occurred during 2016-2021, with legislative intent to avoid a "patchwork" of local laws, avoid burdening retailers, and have a "refreshing drink." Local policy control was characterized as "personal choice." Broad preemption language may stifle local policy making aimed at reducing sugar-sweetened beverage consumption and preempt public health policies such as restricting portion size, in-store promotion and display, and labeling measures.

LEGAL PRACTICES OF INSOLVENCY AND BANKRUPTCY IN INDIA

Bankruptcies have historically followed the business cycle closely. Failure of certain company strategies is a natural part of the market economy’s process. When a firm fails, the optimum outcome for society is a quick renegotiation between financiers, to fund the going concern with a new structure of obligations and a new management team. The purpose of bankruptcy legislation is to recover an entity’s debt and distribute its assets among competing claimholders. As a result, the RBI’s asset quality reviewers identified an extremely high number of NPAs. The government’s most major change is the insolvency and bankruptcy legislation. On the heels of the adoption of the Insolvency and Bankruptcy Code, India jumpedfrom 108thto 52nd in the resolving insolvency category, while its rating improved significantly in dealing with construction permits to 27th from 52nd and trading across borders to 68th from 80th. The purpose of this study is to look into the regulatory framework in India for insolvency and bankruptcy. The impact of insolvency and bankruptcy Code on the Indian economy is also discussed in the study. KEYWORDS: Insolvency, Bankruptcy, Code, Regulatory, SARFAESI Act, National Company Law Appellate Tribunal (NCLAT)

The application of the voluntary guardianship regime to same-sex relationships in China

Abstract In China, the establishment of the voluntary guardianship regime in the General Rules of the Civil Law produced an interesting situation where same-sex partners may apply this regime to determine and protect their rights and obligations. This article describes and analyses the recent practices in this regard, drawing on several cases where same-sex partners concluded voluntary guardianship agreements to arrange matters after a ward loses or partially loses civil capacity. This application allows homosexuals freely to appoint their homosexual partner as their guardian, which compensates to some extent for the lack of clear statutory provisions regarding the legal recognition of same-sex relationships in current Chinese law. Nevertheless, there exist several practical problems within the process of applying the legal rules of voluntary guardianship. In addition, owing to the distinct mismatch between the legislative purpose of the voluntary guardianship system and the core essentials of same-sex relationships, the application of voluntary guardianship to same-sex relationships fails to touch on the crucial legal issues of same-sex relationships, for example, financial relations issues and children issues. In view of these, several proposals about both what needs to be done to make voluntary guardianship work better for same-sex couples at this stage and further legislative reform of the formalized regime for same-sex couples in the future are offered.

Experimental legal regimes of mobilization type as a method of legal regulation in the context of COVID-19 spread

Experimental legal regime; COVID19; legal regime; legal experiment; “regulatory sandboxes”; legal technique; classification of legal experiments; legality; experimental legal regimes of mobilization type on legal forecasting and legal interpretation methods. The theoretical basis of the research includes well-known legal science categories, i.e. legal regime and legal experiment that get a new interpretation with the appearance of experimental legal regime institute. The main results of the research, scope of application. Experimental legal regime is a broader legal phenomenon than regulatory sandboxes, which includes not only regulation of the digital innovation sphere, but also other rules that are limited in time and space. There are legal regimes with signs of experimentation that are not officially identified by the state as experimental legal regimes. The work studied the experience which arose due to modern changes in state and legal regulation caused by the global epidemic of COVID-19. It is suggested to divide the legal experiments according to the purpose of experimental legislation into the following groups: optimizing, progressive and mobilization ones. The aim of the first group named “Optimizing legal experiments” is to test using of new regulation applied to a large and complex object. The second group named “Progressive legal experiments” is intended to check whether the abandonment of old laws is beneficial in the innovation field. The result is creation of a smart regulation for economic and technological development. The third group named “Mobilization legal experiments” is aimed at maintaining of the existing level of resources, security, and infrastructure in the event of critical situations. It is being proved that the legal restrictions aimed at preventing of COVID-19 viral infection spreading can be classified as experimental legal regimes of mobilization type. The criterion for distinguishing of mobilization experimental legal regimes from others is the voluntary participation in the legal experiment and the goal of the experimental legal regime.Conclusions. The development of mobilization experimental legal regimes implies raising of their legality. It can be achieved by the provision of legal guarantees such as the goals of the legal experiment and the evaluation of their consequences. This will allow identify whether the consequences of the experiment correspond to the goals of the new legal regulation. There must be grounds for limitations to legal certainty caused by legal experimentation. Their manifestation is the goal and evaluation criteria, with the help of which it is possible to determine whether the consequences of the establishment of the experiment correspond to the goals of the new legal regulation. Otherwise, there is a risk of unjustified infringement of the rights and legitimate interests of citizens.

Leases and the Requirements of Writing

This article analyses how the provisions of the Requirements of Writing (Scotland) Act 1995 apply to leases and, in particular, the circumstances in which informally constituted transactions which do not comply with the statutory requirements nevertheless receive legal effect because of the Act's “statutory personal bar” provisions. The subject is of considerable practical importance and also gives rise to basic questions of fairness between contracting parties. However, the relevant provisions of the Act are difficult to apply to leases and the case law is inconsistent. This article proposes a new approach to interpreting the Act which avoids some of the difficulties of the existing decisions and which is more consistent with the legislative intention.

Theories of Causal Nexus in Rule 10b-5 Claims: A Critical Reassessment

Abstract Investors are entitled to assume that issuers comply with regulatory disclosure requirements and have therefore purchased or sold a security at a price expected to have been set without being affected by untrue statements or omissions. That is, investor reliance should be presumed in a regulated market in which the issuer statements in SEC filings are truthful and at least not seriously misleading. This article argues that the source of reliance lies in the credibility of the regulators committed to promoting market integrity and investor protection. In this regard, the basic presumption per se remains valid but needs some revision. Furthermore, in assessing claims of causation of loss and damages, it should be taken into account whether any significant price distortion occurred at the precise moment when defrauded investors made investment decisions, not at a later date. Such ex-ante analysis is theoretically sound and consistent with legislative intent.

Reflection on the Normative Intent of Article 16 of China’s Company Law

The ultra vires guarantee by the legal representative of a company not only involves the general rules of the Contract Law, the Guarantee Law and the Civil Code of the People’s Republic of China, but also should consider its nature as a commercial act and take into account the legislative intent of the Company Law. In judicial practice, the regulation of the company’s ultra vires guarantee is scattered and blurred, still needing improvement. Before the advent of the judicial interpretation of the Guarantee Law, the system of legal interpretation and application process was confusing and lacked legal basis. Article 16 of the Company Law affirms the company’s ability to provide external guarantees. In the academic circle, the dispute on the effectiveness of the company’s ultra vires guarantee often revolves around the nature of Article 16 of the Company Law. But in essence, Article 16 is a rule to regulate corporate governance, and its legislative purpose is to regulate the process of intention formation of the company’s external guarantee. To examine the effectiveness of the legal representative’s ultra vires guarantee, one must take into account the interpretation of the intention expression process. The process from the company’s intention formation to the intention expression is not only a significant part to judge the validity of the ultra vires guarantee contract, but also the true representation of the normative intent of Article 16 of the Company Law.

Ensuring Information Disclosure and Environmental Impact on Nanoradioactive Operation of Civil Nuclear Facilities in China

Japan was struck by a massive earthquake that triggered a tsunami in March 2011, which led to a severe nuclear accident at the Fukushima Daiichi Nuclear Power Plant of the Tokyo Electric Power Company. Now, more than 10 years later, it is widely acknowledged that the civil nuclear industry is of great importance in reducing greenhouse gas emissions, improving natural environmental quality, and safeguarding national energy security. Nanomaterials and nanotechnologies, which have gained wide consideration in recent years, have shown a wide variety of application potentials in the future nuclear energy system. Thus, China has been developing its civil nuclear industry throughout the years, despite the nuclear accident in Fukushima, Japan. As a result, China is currently one of the countries with the most nuclear power plants. However, due to the potential radioactive risk, the public has an instinctive fear of civil nuclear development. To alleviate the public’s antinuclear sentiment, the Nuclear Safety Law was formally implemented in 2018, and Measures for Disclosure of Nuclear Safety Information were issued by the Ministry of Ecology and Environment of China in 2020, both stipulating that the public has the right to obtain information about nuclear safety and be involved in related activities. The purpose of such legislation is to eliminate the public’s doubts and phobia about the development of the civil nuclear industry. However, challenges still exist. Although such suggestions have been proposed, such as information disclosure and social involvement should begin as early as the siting of such nuclear facilities, mechanisms to provide sufficient compensation to the public living near nuclear facilities should be established, and these suggestions still have not been applied in the law of China and either not been practiced exactly so far. So, even though all the suggestions have strong feasibility themselves under today’s circumstances in China, it is not easy to judge the effectiveness of these suggestions until they are fully practiced. It is the biggest problem of existing works in this paper. To highlight the serious problems in information disclosure and public involvement in the siting and construction of civil nuclear facilities, several case studies were investigated as the major methodology in this research. Moreover, a legislation study was used to analyze the current content of related legislation and regulations. A qualitative methodology was also adopted to summarize the legal problems surrounding information disclosure and social involvement during the siting and construction of civil nuclear facilities. Information disclosure and public participation still face several obstacles in China, even though laws and regulations guarantee people the right to access available information and take part in pertinent decision‐making. This is particularly true when it comes to the siting and construction of civil nuclear facilities. Thus, in the last several years, several antinuclear incidents have been initiated by the public due to a lack of information and mechanisms to participate. According to the examined cases, information disclosure and public involvement are still not sufficient during the siting of nuclear facilities. A relevant compensation mechanism for people living around nuclear facilities has not been established, and public education on basic nuclear safety is lacking. Therefore, public involvement cannot be completely realized. To ensure information disclosure and public involvement in civil nuclear facilities, this article proposes that information disclosure and social involvement begin as early as the siting of such facilities. Furthermore, operators of nuclear facilities and local governments should establish mechanisms to provide sufficient preventive compensation to the public living near nuclear facilities and attempt to popularize the science of nuclear safety to avoid public misunderstanding.

Allowability of Contribution from the CSR Funds as Deduction Under Section 80G of the Income Tax Act 1961: A Jurisprudential Critique

The deductibility of payments out of the CSR funds as a donation under the Indian tax law severely undermines the legislative intent of addressing the menace of tax subsidization of corporate CSR burden through the 2014 amendment, even though there is some judicial support for its deductibility. This article argues against its deductibility from two perspectives: firstly, from the point of view of the meaning and context of donation in Indian tax law and the tests laid down by the Indian Supreme Court in this regard; and secondly in terms of it being a colourable attempt at tax subsidizing.

Tumačenje prava i namera

The authors start from the assumption that the intention of the legislator is an element that the interpreter should not neglect when understanding the text of the law. Intention can be understood in different ways, wider and narrower, as a psychic moment, but also as a manifested intention. The most prominent opponents of the concept of collective psychological intention come from the school of legal realism, criticizing the standpoints and manners of resolving many important cases in the practice of the highest courts in the United States of America. The authors conclude that it is absurd to understand legislative intent as a concept that aims to read the minds of members of the legislature. But also, the point of view that the legislator, just because it is a collective body, has no intention regarding the topic it discusses and passes the most important regulations in the state, takes the same degree of bizarreness. It must be assumed that the legislature always has a rational will that reflects the attitude of the people towards the policy that the parliamentary majority stand for in the elections. Consequently, it is sometimes possible to give an answer how would legislator solve a certain dilemma if it was set to him. The intention of the legislator might be very useful in interpretation, but it must be kept in mind that it does not solve every particular problem in interpretation and that it is sometimes just a guideline for the mindset of a disciplined judge who will always seek for the meaning that the legislature wanted to express with the words used.

Medicolegal Issues with Reference to NDPS and MHCA in Management and Rehabilitation of Persons with Substance Use Disorders.

Medicolegal Issues with Reference to NDPS and MHCA in Management and Rehabilitation of Persons with Substance Use Disorders.

Excerpts From the Development of Methods of Legal Interpretation

Legal interpretation is a stage in the application of the law, an indispensable operation whereby a judge (or other decision-maker) determines what a legal text means. The text does not stand alone; the words and expressions used in the norm may themselves have multiple meanings even in the context of everyday terminology, not to mention the differences between legal and other professional meanings. Furthermore, a norm has not only a text but also a context, a regulatory environment, a declared legislative purpose, an intention by the lawmaker or a set of moral expectations within which the text can be interpreted, etc. This paper attempts to present how methods of legal interpretation have evolved over the last two centuries and how we have moved from Savigny’s Canon to the sophisticated methodologies of today. At the end of the paper, we ourselves will attempt to provide a useful methodological classification of these highly fragmented and diffuse methods.

A study on the protection of personal rights in the process of divorce

As one of the most basic and prevalent units in society, the happiness and peace of the marital family has an important impact on the stability of society as a whole. With the increasing number of divorce cases in China, domestic violence has now also become one of the main causes of divorce proceedings, and the physical threats present in divorce disputes are bound to infringe on the personal rights of the injured party. To a certain extent, it can also cause irreparable damage to the physical and mental health of even minor children within the family. Therefore, in response to divorce cases caused by domestic violence, China has fully carried out the reform of family trials and implemented the protection of the personal rights of the injured party through the personal safety protection order system stipulated in the Law against Domestic Violence. This article starts from the current situation of divorce in today's society, takes domestic violence as the starting point, takes the right to life and health and the right to personal freedom as the main research objects, combines the habeas corpus system, analyses the necessity of the protection of personal rights of the spouses in the process of divorce and its causes, and then proposes corresponding countermeasures and legal measures to the above problems, and finally achieves the legislative purpose of protecting the personal rights of the injured party.

On the Denial of Consumer Identity and Protection of People Who Knowingly Buy Fake Products <br/>—Taking Chinese Market as an Example

All organizations and individuals that purchase counterfeit products ought to be protected by the law. However, the Law of the People’s Republic of China on the Protection of Consumer Rights and Interests (referred to as “the new Consumer Law”) is not applicable to all of them. Each law has its scope of application, and all legal norms and terms have specific connotation and extension for which arbitrary interpretation is not allowed. Currently, how to identify a person who knowingly buys fake products is usually determined based on whether the purchase is made “for the needs of daily consumption”. The paper applies case study and comparative analysis methods to analyze the legislative purpose of the New Consumer Law, the practical dilemma of the primary criterion to identify the purpose of buying fake products, and the position change of these people throughout the revision of the Consumer Law, aiming to argue that whether a “knowingly-buy-fake” consumer is protected by the New Consumer Law should be determined by whether the buyer is in a disadvantaged position compared to the business operators. The consumer identity should be denied, nevertheless the legitimate rights and interests of them, as civil subjects, shall still be effectively protected by relevant laws.

MAINSTREAMING CLIMATE CHANGE IN POLICY PROCESSES OF PAKISTAN

Pakistan is highly exposed to increasing threats of climate crisis. Despite growing climatic pressures nationwide, the climate coping mechanisms of the country are extremely weak. This study analyses the process of climate change mainstreaming into Pakistan’s national policy processes by deploying the Action on Climate Today (ACT) Framework consisting three pillars: the entry points, enabling environment and political economy drivers. This is blended with the theoretical assumptions of New-Institutionalism that helps in examining key institutional and policy responses to climate change at all governmental levels of Pakistan. It argues that the mainstreaming of climate change into Pakistan’s national, provincial, and sectoral socio-economic development policies, planning and implementation processes will enhance the country’s resilience against growing climatic challenges. There is meager literature on mainstreaming climate change on Pakistan and this study attempts to fill this gap. The study maps vulnerabilities, challenges and options of mainstreaming climate in planning and policy making of the country. It concludes that despite setting national and international goals regarding climate resilience, there remains an extensive gap between legislative aims and implementation of national policies in Pakistan that needs to be addressed.

Analysis of the Contents of a Metropolitan and Provincial Offices of Education Ordinances to Support the Maul Education Community

The purpose of this study is to analyze whether ordinances enacted by metropolitan and provincial offices of education nationwide to support the Maul education community contain necessary contents to function according to the purpose of legislation and to reveal characteristics and improvement tasks. As a result of analyzing 15 ordinances, it was found that cooperation, win-win, and community value orientation between schools and communities are well revealed as general discussions, but the content needs to be strengthened in detail. It was confirmed that the roles or methods of participation of villagers and community education activists were not presented, and that administrative cooperation between the Office of Education and local governments should be presented in more detail. It was also confirmed that there was a lack of regulations for the establishment and operation of a continuous and stable maul education community support organization, and responsibility for financial support or financing methods should be specified. In addition, it was found that most of the ordinances require improvement in similar areas. Research is needed to confirm the effectiveness of future ordinances.

The Division of the Seas in International and Islamic Law and the Concept of Ḥarīm al-Baḥr: A Comparative Fiqh Study

This original research paper investigates how the division of the seas between international (the high seas) and territorial waters is approached in Islamic law as compared to international law. It describes the conceptualization of the seas against the background of contemporary international and Islamic law and analyses the Islamic legal concept of the appurtenance of the sea, ḥarīm al-baḥr, as a suitable vehicle to accommodate the modern division. The paper draws on source material from different Islamic schools, with a focus on the Ibāḍī school, which historically has paid relatively more attention to the seas. It suggests legal mechanisms that may be activated with regard to notions of territorial and international waters in Islamic law. The study arrives at the conclusion that some modern representations of ḥarīm al-baḥr are not commensurable with its intended legislative purpose (ʿillah).

Elusive empowerment: characteristics of indirectly elected women chairpersons of district councils in Uttar Pradesh, India

The 73rd Amendment to the Constitution of India was introduced with a stated legislative intent of reserving not less than a third of seats for women in institutions of local self-government, the three-tier panchayati raj institutions. That amendment is considered a milestone in India’s project of empowerment of women. This paper evaluates the power and prestige of the post of an adhyaksha (chairperson) of a zila (district) panchayat (council) in general, and in particular the status of women elected to the post during 2016 in the state of Uttar Pradesh (UP). Analysing the candidature, electoral success, electoral practices and subsequent functioning of zila panchayat adhyakshas (ZPAs), the authors argue that despite seats being reserved for women, no meaningful political empowerment of women has occurred in UP. The paper questions the efficacy of the indirect mode of election of ZPAs in bringing about empowerment of women, arguing that indirect elections enable powerful ruling elites to use women as proxies, subverting the legislative intent of the 73rd Amendment. The paper therefore proposes electoral reforms.