Legislative Solutions Research Articles

Skutki zawezwania do próby ugodowej po zmianach dokonanych ustawą z dnia 2 grudnia 2021 r. o zmianie ustawy – Kodeks cywilny, ustawy – Kodeks postępowania cywilnego oraz niektórych innych ustaw (Dz. U. poz. 2459)

The article discusses the views of the judicatur and the literature on the effects of submitting an application for a summons, pointing to the deepening discrepancies in the jurisprudence of common courts and the Supreme Court on this issue. It presents the legislative solutions introduced by the Act of December 2, 2021 amending the Act – Civil Code, Act – Code of Civil Procedure and some other acts (Journal of Laws, item 2459), aimed at normative determination of the effects of submitting an application for a summons in relation to the running of the limitation period for the claim covered by the application. It indicates the need for changes in the scope of the regulations concerning the court fee for the application for a summons to a conciliation attempt.

Shvaćanje pravne znanosti u suvremenoj udžbeničkoj literaturi iz pozitivnopravnih predmeta na Pravnom fakultetu Sveučilišta u Zagrebu

The paper discusses the explicitly stated understanding of legal science as it appears in compulsory course textbooks on positive law subjects at the Faculty of Law, University of Zagreb. The first part of the paper describes the research problem and posits the corresponding hypotheses, states the research aims, describes the method of qualitative content analysis, and elaborates on the content units used (themes, categories and subcategories). The second part establishes the textbooks which contain an explicit determination of a branch of legal science that they belong to, or legal science in general, and the extent to which they contain it. Furthermore, it establishes how the subject matter, objectives and methods of legal science are defined in the textbooks and whether the textbooks include interdisciplinarity as a part of legal research. The third part determines the predominant understanding of the subject matter, objectives and methods of legal science and the predominant understanding of interdisciplinarity of legal research in the analyzed course textbooks. The conclusion contains a discussion of research results, determines the extent to which the hypotheses are confirmed and highlights the possible avenues of further empirical and theoretical research on (Croatian) legal science. The research results demonstrate that the analyzed textbooks mostly contain at least an elementary determination of legal science, but differ greatly with respect to the placement, extent, and way of its elaboration. Furthermore, according to the predominant understanding, the subject matter of legal science are general legal norms. Its objectives are to describe the law, systematize it and to recommend more appropriate legislative solutions and ways of interpreting and applying it, while its methods are the dogmatic method, the comparative method, and the sociological method. Objectives and methods are mostly just mentioned, without being described and explained. Finally, less than a half of the textbooks mention that legal research includes some level of interdisciplinarity, while the predominant understanding is that interdisciplinarity consists primarily in using insights from other scientific disciplines.

REQUIREMENTS OF THE LANGUAGE USED BY THE LEGISLATOR IN THE CONSTRUCTION OF THE NORMATIVE TEXT. SPECIAL LOOK AT THE ROMANIAN LEGISLATIVE TECHNIQUE

Any law is the reflection of a thinking before it is the expression of a will. The law can have beneficial or negative effects at the time of its application, and it can be validated or rejected by social practise depending on the quality of this thought, how the legislative solutions are expressed in words, and how they are structured. Therefore, in normative construction, drafting is an extremely important stage and should start from the fact that the law intervenes to respond to a social need. The scientific knowledge of this reality and the choice of a language appropriate to the norm’s recipients become necessary prerequisites for the normative act’s intended outcome. With reference to the standards established by the norms of Romanian legislative technique in the area of language, this article discusses the rules that a lawmaker must follow in the development and structure of the content of the normative act starting from these considerations.

Podstawa wypłacania i charakter prawny dodatku covidowego w służbie zdrowia

This study is devoted to the analysis of selected issues related to the basis for payment and legal nature of the so-called COVID allowance, introduced to make salaries more attractive for employees of the broadly understood health service during the SARS-CoV-2 pandemic. In the article, the author attempts to answer the questions regarding the interpretation of the above-mentioned COVID allowance, especially their legal nature and the legal basis for their issuance. The interpretation confusion that arose as a result of imprecise legislative solutions led to interpretation doubts and influenced the financial situation of the beneficiaries to whom these allowances were granted. The author carries out a detailed analysis of the dynamically changing legal situation during the pandemic, which as a result leads him, among other things, to the conclusion that COVID allowances are part of the remuneration for the work generated ipso iure. The author also points out that the analysed COVID legislation can be considered as normative acts of the nature of the sources of labour law, in the broad sense of the term. It is also noted that the clue that authorises the above statement is the ongoing process of the evolution of the sources of law, tentatively referred to in the science of law as multi-source. Somehow when analysing the issue of COVID allowance, the author comes to the conclusion that the doubts about COVID allowance considered in the context of the sources of law are a kind of heralds of the upcoming phenomenon of complicating the sources of law in general, which may affect their redefinition. In the summary of the analysis, the author notes that despite the fact that COVID allowances are in force only until 31 March 2022, the answer to the question about their legal nature will also have future consequences, e.g., due to the impact of supplements on determining the amount of remuneration derivatives and the admissibility of verification of the correctness of their calculation.

행정제재처분의 형벌 종속성에 관한 고찰 - 제도의 문제점과 입법적 개선방안을 중심으로 -

개별 행정법률에는 행정처분을 통해 일정한 신분 · 자격 · 권리를 부여받은 사람이 ‘특정한 범죄를 범하여 일정한 형량 이상의 형’에 처하는 판결을 선고받은 경우에는 행정청이 그에 대하여 허가 · 면허 등 자격을 박탈하거나 보조금이나 급여 등을 환수하는 제재처분을 하도록 규정한 예가 많다. 이때 제재처분의 적법 여부는 형벌의 내용에 좌우되므로 ‘제재처분의 형벌종속성’이라는 테마로 연구할 필요가 있다. 이러한 법률규정은 대개 특정한 직역에 대한 일반국민의 신뢰를 확보하기 위한 수단이며, 제재처분을 형사판결 결과에 종속되도록 한 것은 의무위반의 내용 · 정도와 제재처분의 종류 · 양정 사이의 비례원칙을 구현하고 제재사유 존부의 명확성을 담보하기 위한 것이며, 대개 제재처분을 기속행위로 규정함으로써 중대한 의무위반에 대하여 엄중한 제재처분이 반드시, 확실히 취해질 것을 목적으로 하고 있다.BR 이러한 법률규정을 적용 · 집행할 때에 행정실무상 가장 문제되는 것은 제재처분의 요건인 ‘특정한 범죄를 범하여 일정한 형량 이상의 형’을 선고받았는지를 파악하기 곤란한 경우가 빈번하게 발생한다는 점이다. 이러한 법률규정의 입법목적에 따르자면 특정범죄에 대한 형량을 기준으로 제재처분사유 해당성 여부가 판가름되어야 한다. 그러나 현실적으로 형사피고인이 단일범죄로 재판을 받는 경우는 매우 드물고, 여러 범죄를 범한 실체적 · 상상적 경합범으로써 재판을 받는 것이 대부분인데, 이 경우 형사법원은 각각의 범죄에 대하여 분리하여 각각의 형을 선고하는 것이 아니라 형법 제37조, 제38조 제1항 제2호 또는 제40조에 의하여 하나의 형을 선고하기 때문에, 선고된 형 중에서 제재처분 근거규정에서 정한 ‘특정한 범죄’에 대한 형량이 얼마인지를 파악하기 곤란한 경우가 종종 발생하며, 제재처분에 대한 행정소송에서 빈번하게 다투어지고 있다.BR 이러한 상황은 형사판결을 통해 제재처분사유 존부의 명확성을 담보하고자 하는 당초 입법목적이 현실에서 제대로 구현되고 있지 못함을 의미한다. 이에 관하여 대법원 판례는 사안 유형을 몇 가지로 구분하여 해결방안을 제시하고 있으나, 일관성 있거나 설득력 있는 해결방안이라고 평가하기는 어렵다. 이러한 문제상황을 근본적으로 해결하기 위해서는 개별법률에 분리선고 규정을 반드시 도입하는 입법적 개선이 이루어져야 한다. 또한 분리 선고 규정이 도입되는 것을 전제로 한다면, 형사판결 결과에 따른 자격박탈은 당연 자격상실로 규정하면 충분하고, 굳이 별도로 기속적인 자격박탈처분을 하도록 규정할 필요가 없다. 이러한 법령정비를 통해 제도의 본래의 취지를 구현하고, 불필요한 추가 분쟁을 방지할 수 있다.

The Mitigation of Pollution Induced by Concentrated Animal Feeding Operations (CAFOs)

Through hazardous agricultural practices and waste mismanagement, America’s Concentrated Animal Feeding Operations (CAFOs) emit a significant amount of water and air pollution that causes a myriad of environmental and human health problems. This is an issue that can be largely mitigated through the implementation of technical, legislative, and holistic solutions. The following technical solutions will be discussed: editing pollutant diets, deploying air cleansing within CAFO structures, sprinkling vegetable oil on CAFO grounds, converting methane to energy, binding waste lagoons with geosynthetic clay liners, and installing riparian buffers. Furthermore, legislative solutions entail revising and enforcing existing regulations, imposing reflexive law, mandating nutrient management plans, offering federal credits, and revisiting the Farm System Reform Act. Finally, holistic alternatives regard hog hoop barns, free-range grazing, and changing consumer preferences. 
 This paper will examine the issue of CAFOs and the specifics of the pollution they emit and will primarily focus on practical solutions to it. The methods used to contextualize the problem and discover possible solutions will be content and meta analysis research. Ultimately, the final take away was that combining technical and legal solutions–forcing physical change through legislative mandates–will cause the most significant reduction of CAFO pollution.

Nature of a film contributing author’s ‘right to royalty’ under Indian copyright law: an analysis

In the Indian film industry, authors contributing to films have for decades been powerless to secure for themselves a fair remuneration from producers that is commensurate with the utilization of their works, predominantly due to their weak bargaining position. Amongst other objectives, it was to address this anomaly that the Indian copyright law underwent extensive changes in the year 2012 and established a new statutory ‘right to royalty’ in support of authors. This article sheds light on the nature of this legislative solution, which India has adopted through amendments to ss 18 and 19 of the Copyright Act 1957, and briefly touches upon its effectiveness in meeting this objective. The article largely relies on legislation and studies from the European Union to conclude that the nature of the right to royalty provision introduced within the Indian copyright law framework is akin to a ‘residual remuneration right’, which amalgamates the benefits of an exclusive right and a remuneration right, thus balancing the interests of both producers and authors. Nonetheless, it is felt that the existing provision may require more textual clarity for the model to become effective and to safeguard the remuneration interest of authors. Since the Indian government has begun consultations to further amend India’s copyright law, this is an opportunity to not only identify the shortcomings in the law but fill in the gaps where necessary.

Earth Observation Applications and the Right to Privacy: Within and Beyond the COVID-19 Pandemic

Earth Observation (EO) applications interact with many industries and government practices. When EO applications touch upon data being able to identify individuals or certain groups, the processing methods adopted therein entail the balance between public interests in EO applications and the values of privacy protection. It then raises the question of whether and to what extent the EO data comes under privacy protection. This study builds on the methodologies of positive law analysis and normative analysis, with supplementary discussions on the role of EO applications in the COVID-19 pandemic. In recognising the conclusion that the right to privacy entails restrictions on data processing within EO applications, the principle of proportionality calls for solutions to fill the gaps in the regulatory framework. Though legislative solutions are possible in theory, it is not an easy job to get consensus among States in practice. A more appropriate solution lies in introducing a privacy ranking regime internationally, with supplementary enforcement practices on the regional and national levels.

China's emerging commercial space industry: Current developments, legislative challenges, and regulatory solutions

With commercial participants now undertaking an ever-expanding role within the development and supply-chains of China's space industry post Document No. 60, the resulting legal challenges relating to this emerging industry status-quo has garnered much academic discussion. Specifically, while China's space industry has grown at a rapid pace within the past few decades, China's legislative framework has remained largely silent over matters relating to space. Instead, China continues to remain as the only major space-faring nation without a national space law and regime. This substantive legislative gap over China's space related activities has negatively impacted the industry's current deregulation process. While it has been the academic community's primary solution to address the industry's current substantive legislative gap through coordinated rulemaking activities, this paper aims to advance the current academic discussion by taking an alternative approach and arguing that the fundamental legislative challenge and solution to China's emerging commercial space industry, is not substantive, but rather procedural by nature. Importantly, by reconceptualizing the industry's substantive gap from one that is determined by the number of missing legal instruments, to one determined by the rate of legislative activity i.e., the pace of law-making activities vis-à-vis commercial expansion, this paper argues that only through the implementation of legal procedural rulemaking mechanisms will China's space law regime be able to sufficiently address the current substantive legislative gap at a pace matching commercial expansion.

Smart contract as a civil law way of disposing of digital rights: problems of theoretical substantiation and practical application

Complex socio-economic processes are simultaneously taking place in Russian society: the economy is adapting to external economic challenges and, due to the COVID-19 epidemic, many aspects of social life are being transferred online. As a result, there is a transformation of all types of entrepreneurial activity, oriented both to the end consumer and to another legal entity (B2B transactions). The digitalization of commerce objectively requires an effective legal response to the procedures for concluding and executing contracts. A feature of the Russian legal system for regulating digital assets can be considered the impossibility of concluding direct transactions, bypassing a specialized information platform.
 The article discusses the features of smart contracts as a civil law way of disposing of digital rights. The activity of an information platform operator or a market maker as an intermediary is analyzed. Their positive and negative impact on the digital asset market is shown.
 The conclusion is substantiated that the disposal of digital rights through the use of a smart contract cannot be identified with all other classical contractual structures. Smart contracts, including those that are made using blockchain and Ethereum technology, are legally different from the electronic form of a civil law contract. Despite the obvious advantages of a smart contract as a way to manage digital assets, in the absence of legal regulation, significant business risks arise that require a prompt and effective legislative solution

Selected Legal and Interpretative Aspects of the Provisions Implementing the Directive 2019/2161 of 27 November 2019 as Regards the Better Enforcement and Modernisation of Union Consumer Protection Rules (Omnibus)

The purpose of this article is to present selected legal and interpretative aspects that emerged during the legislative work on the draft act implementing the provisions of the Omnibus Directive. Selected problems will be briefly discussed and a legislative solution will be presented which, in the opinion of the drafters, best reflects the purpose of the EU regulation. In particular, this text will address issues related to interpretative aspects of implementing a provision that extends the scope of application of the provisions on consumer rights to digital services provided in exchange for personal data; grounds for distinguishing between online digital content and a digital service; differences in the right to withdraw from the contract on online delivery of digital content and digital services in return for the payment of a price and in return for the supply of personal data; as well as the framing of the definition of an online marketplace and an online marketplace provider in the context of the Directive's objective and the concept of consumer definition under national regulations.

The Access Conditions of the Natural Person to the Insolvency Procedure in Romania

Since the beginning of 2020 in Romania, the COVID-19 pandemic has been exhibiting its negative effects. As expected, the hardest hit were the ordinary citizens who, overnight, awakened to reduced wages or downright joblessness. Moreover, the year 2021 has brought price increases in all areas, from basic foodstuffs to electricity, gas, fuels. The over-indebtedness of a large population of individuals has become the norm under the above conditions. The insolvency proceedings law for individuals seemed to be a solution for their over-indebtedness predicament, but we have found that this law is not performing at its true potential. In addition to a complex application form requested of the simple citizen, we contend that the access conditions to the insolvency procedure of the natural persons can be simplified and improved. Given the economic conditions in Romania, along with the reduction in the living standard, the legislator will have to give priority to the possible legislative solutions that will offer the indebted a fresh start. Keywords: Insolvence; Natural person; COVID-19

Empirical Analysis With Legislative Solutions of Workplace Cyberbullying

World Health Organization (WHO) calls for 2.5 nurses per 1000 people in the national health-care system. The total available nurses per 1,000 persons in Pakistan is 0.604, far less than the WHO standards. Pakistan is among 57 countries facing a crisis in Human Resource for Health (HRH). Apart from other social issues, cyber-bullying has further affected the participation of female nurses in health-care jobs. The issue of cyberbullying is silently draining female participation in nursing jobs. Moreover, the issue of bullying is not often raised because of moral, ethical, and social issues related to the reporting and remedial system. Therefore, the article sets to examine the credibility of the available remedial system, the issues involved with reporting the issue of cyberbullying, and the manner to improve the response against the issue of cyberbullying with reference to young female nurses. To construct the arguments, the study will examine the issue of cyber-bullying related to female nurses at statistical and legislative levels.

The Limits of Analogy in the Private Legal Status of the Beneficial Owner of a Legal Entity

The author reveals the inconsistency of judicial practice on the issue of the private legal status of beneficial owners (final beneficiaries, beneficiaries) of a legal entity: in cases of challenging decisions of general meetings of participants and transactions of such legal entities, courts without proper references to the legal basis tend to recognize the beneficiaries of the right to appropriate claims, and in disputes over their demands for information the activities of the corporate entities actually controlled by them are denied on the grounds of the lack of grounds for applying the analogy of the law, considering the silence of the legislator about the relevant protective instrument of the beneficiary qualified. Due to the absence of special rules on the presence or absence of analyzed protective capabilities of beneficial owners, the effectiveness of analogy as a traditional means of overcoming legal gaps has been tested. The prospects of analogical introduction of the public-law concept of "beneficial owner" into the structure of the private-law status of legal entities are evaluated. The development of a formal approach based on the absence of a direct legal connection of the beneficiary with the organization controlled by him is not excluded. It is concluded that it is necessary to develop a unified judicial approach to the possibility of analogical application of public-law rules on the figure of beneficial owners to private-law relations with their indirect participation before the legislative solution of the issue under study.

Legislating Medicare Fraud: The Politics of Self-Regulation and the Creation of Professional Standards Review Organizations

AbstractNot long after the 1966 enactment of Medicare and Medicaid, evidence emerged that unscrupulous physicians and health care organizations were gaming the system. Research over the past 50 years shows that around 10 percent of the federal government’s annual cost for these programs is attributed to fraudulent claims or abuses where hospitals and treatments have been overused for undue provider profit. This article examines early congressional attention to this problem and describes lawmakers’ attempts to find legislative solutions to it. It historicizes the dilemma of balancing the ideological limits of government regulation with cultural assumptions about professional self-regulation, focusing on a major 1972 law, the Professional Standards Review Organization (PSRO) Act. The law launched a 10-year career for PSROs, physician-staffed peer-review boards designed to identify and sanction efforts to overcharge Medicare. The article contextualizes multiple actors’ concerns over cost containment and the crisis of faith in medical authority that persisted following failures to control professional malfeasance.

Artificial intelligence and EU security: the false promise of digital sovereignty?

ABSTRACT EU Digital Sovereignty has emerged as a priority for the EU Cyber Agenda to build free and safe, yet resilient cyberspace. In a traditional regulatory fashion, the EU has therefore sought to gain more control over third country-based digital intermediaries through legislative solutions regulating its internal market. Although potentially effective in shielding EU citizens from data exploitation by internet giants, this protectionist strategy tells us little about the EU’s ability to develop Digital Sovereignty, beyond its capacity to react to the external tech industry. Given the growing hybridisation of warfare, building on the increasing integration of artificial intelligence (AI) in the security domain, leadership in advancing AI-related technology has a significant impact on countries’ defence capacity. By framing AI as the intrinsic functioning of algorithms, data mining and computational capacity, we question what tools the EU could rely on to gain sovereignty in each of these dimensions of AI. By focusing on AI from an EU Foreign Policy perspective, we conclude that contrary to the growing narrative, given the absence of a leading AI industry and a coherent defence strategy, the EU has few tools to become a global leader in advancing standards of AI beyond its regulatory capacity.

РОЛЬ ОРГАНІВ ЕКОЛОГІЧНОГО КОНТРОЛЮ У ФІКСАЦІЇ ВОЄННИХ ЗЛОЧИНІВ ПРОТИ ДОВКІЛЛЯ НА ТЕРИТОРІЇ УКРАЇНИ

The article is devoted to the study of the role of environmental control bodies in recording war crimes against the environment in Ukraine and calculating damage, which will help Ukraine properly submit a case to the International Court of Justice to obtain reparations from the Russian Federation to restore the environment. The article analyzes the powers of the State Environmental Inspectorate of Ukraine in martial law as well as features of the Operational Headquarters at the State Environmental Inspectorate of Ukraine, created to ensure the formation of a list of all violations in the field of environmental protection and to help bring the Russian Federation to justice for environmental damage in Ukraine. The current issues in the recording of war crimes against the environment, which require both legislative and organizational solutions, are identified, including the following: improvement of the existing methodology for calculating environmental damage caused to the environment as a result of hostilities; inclusion in the calculation of environmental damage caused to the environment as a result of hostilities, loss of the ability of the environment to provide ecosystem services; features of international cooperation in the protection of territories in the framework of active hostilities under the protection of international conventions. It is proved that the amount of damage due to the loss of the ability of the environment to provide goods and services (ecosystem services) should be taken into account when calculating environmental damage. The need for international cooperation of Ukraine, in particular with the Secretariat of the Ramsar Convention on the territories of wetlands under occupation, is substantiated by the fact that such a cooperation can help to obtain data from satellites concerning the current situation of wetlands to capture environmental changes that could be caused by activities of Russian Federation on the occupied territories. In view of the case law of the International Court of Justice, it is proposed to amend the bylaws on the calculation of environmental damage, taking into account the damage caused by the loss of the ability of the environment to provide ecosystem services. Ukraine is currently developing a legal framework that will contribute to the formation of a list of all violations in the field of environmental protection in connection with the armed aggression of the Russian Federation and a full calculation of environmental damage in Ukraine.

Sources of Civil and Sports Law as a sub-branch of Civil Law of Ukraine

The article is devoted to the topical issues of analysis and systematization of sources of Sports and Civil Law. The role of sports in the development of modern society is constantly growing. The development of civil and sports legal relations requires the systematization of the sources of Sports Law, which should harmonize the entire complex of normative legal acts in the field of physical culture and sports. This would make it possible to develop educational programmes for training future specialists in this field, and would raise the legal resolution of disputes in this field to a more professional level.
 State policy and private financing in this area require a qualitatively new level of legal regulation. This requires the creation and systematization of legal norms regulating sports relations. In particular, among the issues that require a legislative solution are the regulation of the legal status of the athlete, the peculiarities of the protection of the rights and interests of the subjects of sports relations, and more. For this, first of all, it is necessary to determine the legal sources of Civil and Sports Law and unify them with international legal sources.
 Civil and Sports Law has its own sources of law. This is the basis for its inclusion in the structure of the civil legislation of Ukraine. Systematization of civil sports legislation should be carried out through codification. This is explained by the presence of a large number of sources of Sports Law, which contain conflict of laws rules and do not always meet international requirements and standards, as a rule, they are of a general nature. It will also help to eliminate the gaps and contradictions that currently exist in the legal acts regulating the relationship between physical culture and sports. In addition, Civil and Sports Law will meet international standards, the legal status of professional athletes and other subjects of sports legal relations will become more protected, research in the field of Private Law regulation of social relations arising in the field of physical culture and sports will be intensified, it will make it possible to establish the procedure for consideration of disputes between subjects of sports legal relations more transparent.

New perspectives on World Heritage management in the GCC legislation

New legislative acts on heritage protection have been published in several Arab Countries in the last decade. Whilst this is a positive trend in general, what remains to be seen is the factual impact of the new legislation on the pressing issues of heritage management, including the holistic and integrated approaches, monitoring, enforcement and others. This paper compares the new legislative solutions from Gulf Arab Countries to the older ones and determines whether the new trends have potential of improving the heritage management systems. The findings of this paper are intended to increase the awareness of the still-marginal issue of heritage management in the heritage legislation of Arab region and promote the successful measures among the countries with outdated statutory heritage protection.

Slovak Self-governments` Legislative Aspects of the Possibilities in Dealing with Nuclear and Other Extraordinary Events

The scientific article focuses primarily on management problems involving municipal self-government in solving the crisis situation of the population in cases not only exceptional nuclear events. It stresses the need to respond flexibly with a legislative solution to the lack of regulation. The main focus of research is to define the legal basis for the protection of the population at national level. It then focuses on proposals for legal solutions that will enable adequate protection of the population of the affected territories in the Slovak Republic. Using selected scientific methods of examination, we critically evaluate the legislative difficulties limiting the preparedness of the management of municipalities to cases of possible exceptional events especially nuclear events. The result and added value of our examination are proposals for more appropriate regulation in terms of protecting the lives, health, property and social security of the affected population.