Matter Of Law Research Articles

УСТАНОВЛЕНИЕ ФАКТИЧЕСКОЙ ПРИЧИННОЙ СВЯЗИ В ДЕЛИКТЕ

The article examines the moral basis and significance of causation from the standpoint of corrective justice; the division of factual and legal causation, as well as the theory of conditio sine qua non and NESS test, are critically analyzed; the problems of the former are discussed, while the preference of the latter is justified, with special attention to the torts committed by omission; the relation of factual causation as a matter of substantive law to the procedural form of its reflection is established through the discussion of issues of allocation of burden of proof and standards of proof, as well as admissibility of scientific and statistical evidence of factual causation.

О‘zbekiston Respublikasi Fuqarolik kodeksining yangi tahriri loyihasida “fuqarolik qonunchiligi”ga oid yangiliklarning ilmiy-nazariy tahlili

This article gives a scientific-theoretical description of Chapter 1 of the Draft of new edition of the Civil Code of the Republic of Uzbekistan (hereinafter - CC) “Civil legislation”. The proposed amendment to the Civil Code with the draft was scientifically grounded in the author’s interpretation. In particular, the necessity and importance of inclusion in the Civil Code of two important principles as the basic foundation of civil law: “freedom of expression of participants of civil proceedings” and “property independence of participants of civil proceedings” is based on the doctrine and practice of civil law. At the same time, the article analyses the scientific and methodological aspects of including corporate relations and other types of business relations in the subject matter of civil law. In addition, it was proposed that an important rule regulating relations with state participation should be established in the system of relations regulated by law. The author has also tried to substantiate the correlation between the general and special part of civil law, the need to determine the retroactive effect of it, the necessity to draft the rules of application of space and the need to strengthen the rules of interpretation of law. In addition, the article analyses the legislation of several foreign countries, the views of domestic and foreign scholars, the sources of the relations regulated by the participants, as well as the essence of the proposed changes and additions in the relationship between civil law and international treaties which are signed by the Republic of Uzbekistan.

Legal Consequences of and Approaches to the Question of Recognition of a Government of a State: Disputes involving Venezuela

Abstract This article examines the ongoing dispute over the presidency of Venezuela as a case study on the state of international law relating to the recognition of governments. Since the beginning of the presidential deadlock in Venezuela in 2019, ICSID tribunals and ad hoc Committees, as well as the courts of England and Wales, have found themselves embroiled in the dispute over the Venezuelan presidency between the rival Maduro and Guaidó administrations. ICSID tribunals and committees have had to determine whose legal representatives are entitled to represent Venezuela in proceedings before them, while the English courts have been called upon to determine which administration has control over Venezuelan gold and other assets held in the UK. These disputes have brought renewed arbitral and judicial attention to the concepts of ‘effective control’ and recognition. This article examines how each of the courts and tribunals has addressed these concepts, and what their decisions tell us about the legal consequences of recognition as a matter of international and domestic law.

مرویاتِ عائشہ کی روشنی میں نسوانی مسائل اور ان کا تجزیاتی مطالعہ

In this article, an effort has been made to describe the services of Umm ul Mo’mineen Hazrat Ayesha (R.A.). She (R.A.) was the wife of the Holy Prophet (Allah’s mercy and peace be upon him) and the daughter of Hazrat Abī Bakr R.A. She spent her time in learning and acquiring knowledge of the two most important sources of Islam, the Qur'an and the Sunnah of His Prophet (Allah’s mercy and peace be upon Him). Hazrat Ayesha (R.A.) narrated 2210 ahadith, out of which 174 ahadith are commonly agreed upon by Bukhari and Muslims in Sahibain. Hazrat Ayesha (R.A) is a great scholar and interpreter of Islam, providing guidance to even the greatest of the Companions (R.A.) of the Holy Prophet Muhammad (Allah’s mercy and peace be upon Him). She has not only described ahadith and reported her observations of events, but interpreted them for the derivation of judgments. Whenever necessary, she corrected the views of the greatest of the Companions of the Holy Prophet (Allah’s mercy and peace be upon Him). It is thus recognized, from the earliest times in Islam, that about two-thirds of Islamic Shari’ah is based on reports and interpretations that have come from Hazrat Ayesha (R.A). Hazrat Abu Musa al-Ash'ari (R.A) says: "Never had we (the companions) been in any trouble for the solution of which we asked Hazrat Ayesha(R.A) and did not find some useful information from her". As a teacher, she had a perfect and convincing manner of speech. She is a role model for women. She was an authority on many matters of Islamic Law, especially those concerning women. Her life shows to what extent a Muslim woman can rise.

Collective access to national courts for labour law and social policy disputes: Austria

With this paper we aimed to give an insight into Austria's labour and social security jurisdiction, notably into different forms of collective redress within this system. As the Austrian Labour and Social Courts Act provides for certain instruments of collective redress, the primary focus will be on those. The main drawback of those existing forms of collective action for labour law matters, however, is the lacking possibility for the single employee to enforce the respective judgement. Hence it can only serve as a legal test case. In that respect, instruments of Austria's general civil procedural law could present a practical alternative to the problem and thus the legal framework and ongoing academic debate about the application of those procedures is also a key part of the paper.

The Shifting Status of Cities in International Law? A Review, Several Questions and a Straight Answer

Witnessing the sometimes confusing and often nebulous debate on the position of cities in international law, one could wonder what cities are and what they do in contemporary international law. One could also wonder whether allowing cities to actively participate in the formation and implementation of international norms, and to contribute to international multilateral negotiations on issues of global concern such as sustainable development, climate change or human rights, does really imply a change in their status in international law. In this contribution, the reasons why cities are not subjects of international law, or better, why cities and local authorities still matter in international law because they are part of a State, are systematically assessed. Specific attention is paid to the status and role of transnational city networks. Before concluding, this article makes some final comments on the prospects for cities and transnational city networks in international law.

Towards an effective transnational regulation of AI

Law and the legal system through which law is effected are very powerful, yet the power of the law has always been limited by the laws of nature, upon which the law has now direct grip. Human law now faces an unprecedented challenge, the emergence of a second limit on its grip, a new “species” of intelligent agents (AI machines) that can perform cognitive tasks that until recently only humans could. What happens, as a matter of law, when another species interacts with us, can be integrated into human minds and bodies, makes “real-world” decisions—not through human proxies, but directly—and does all this “intelligently”, with what one could call autonomous agency or even a “mind” of its own? The article starts from the clear premise that control cannot be exercised directly on AI machines through human law. That control can only be effected through laws that apply to humans. This has several regulatory implications. The article’s first discusses what, in any attempt to regulate AI machines, the law can achieve. Having identified what the law can do, the article then canvases what the law should aim to achieve overall. The article encapsulate its analysis in a list of both doctrinal and normative principles that should underpin any regulation aimed at AI machines. Finally, the article compares three transnational options to implement the proposed regulatory approach.

Investigation of the Relationship Between Aggression and Adult Attachment in Healthcare Professionals.

IntroductionMultiple references to the violent and especially difficult patient have been presented by the international literature. However, there is little literature on the aggressive behaviors of health professionals in their workplaces. The aim of this research is to record and correlate aggression and attachment type data of adult health professionals.MethodsThe sample includes 192 individuals (43 men and 149 women) health professionals in the private and public sector, aged 20 to 60 years, who were selected by the method of random sampling. The survey was conducted from February 2018 to May 2018. The Greek version of the Aggression Questionnaire and the Greek version of the Revised Experiences in Close Relationships (G-ECR-R) self-report inventory were used and the analysis was performed with the Statistical Package of Social Sciences (SPSS 26) (IBM Corp., Armonk, NY).ResultsThe analysis shows that the dimension of avoidance has a positive correlation with hostility and physical aggression and the dimension of stress has a positive correlation with anger, physical aggression and hostility. It also seems that the stress dimension of the adult attachment contributes significantly positively to the prediction of anger and the stress dimension contributes significantly to the prediction of hostility. The dimension of avoiding adult attachment contributes significantly to the prediction of physical aggression.ConclusionsTo our knowledge, no studies were found in the literature to examine the relationship between the subscales of aggression and dimensions of attachment. It is important that violence in the workplace is recognized as an underlying occupational risk and not just as a matter of criminal law. Finally, more research is needed to study the phenomenon in order to make it more understandable.

Turnover Taxes, the Fight for the National Tax Base and the EU Court of Justice: An Undeserved Triumph for Member State Direct Tax Autonomy?

The additional taxation of corporate turnover has emerged in the EU Member States and at the EU level as part of efforts to secure the national tax base and presumably to enable a fair and equitable sharing of the tax burden among corporate taxpayers covered by the national tax jurisdiction. Its introduction is usually based on the expectation that such taxation enables the exercise of taxing rights over value generated in the national analogue and digital economy when the traditional taxation of corporate income seems to fail in achieving the same. However, turnover taxes are problematic tax instruments from a legal perspective and their lawfulness is debatable as a matter of both EU and national law. After years of contestation before the European Commission and the courts of the EU based on EU internal market and State aid law, it has been revealed that EU law is not available to challenge some of the fundamental problems with the regulation of turnover taxes. As the law now stands, there is a possibility that in this area of taxation Member States can get away with misrepresenting their intentions and abusing their taxing rights in this way. This latter issue must not be overlooked when addressing the non- or under-taxation of corporate taxpayers in the national and the European economy. turnover taxation, digital taxes, national tax base, Member State tax policy autonomy, discrimination, abuse of taxing rights

Typological models of legal regulation of matrimonial relations through the prism of comparative approach in private law

This article outlines a number of typological models of legal regulation of matrimonial relations using the method of comparative-legal analysis. Leaning on the formal-legal approach, analysis is conducted on certain typological models. First and foremost, the author explores the model that is based on inclusion of the norms of family law in the Civil Code. It features two basic modifications that take roots in the reference European codifications of civil law: French (institutional) and German (pandect). Another typological model under review relies on coexistence of the two separate codes within the national legal system: civil and family. The typological distinctness characterizes the model that is based on inclusion of the norms of special statutes dedicated to family law in the Single Civil Code (for example, PRC). The development of family law may take the path of adoption of separate legislative acts (UK, USA). In some instances, federative nature of the country may also affect the development of the system of sources of family law. The countries with pluralistic legal system, either have exclusive jurisdiction over matters of family law (for example, Israel), or stimulate the processes of its modernization through adoption of a special law (for example, India). The author believes that the formal-legal criterion of typology should be correlated with the substantive aspect of the matter. From this perspective, the author highlight the two trends in regulation of matrimonial relations: the first is associated with strengthening of public law principles, while the second is associated with private law principles. The typological model depends on the dynamics of their ratio.

‘Antisocial Behaviour, Unfriendly Relations’: Assessing the Contemporary Value of the Categories of Unfriendly Acts and Retorsion in International Law

Abstract This article considers the international law categories of unfriendly acts and retorsion in the modern context. To date, these categories articulating the freedoms that States enjoy below the threshold of international wrongfulness have received little attention in academic debate. But we consider both categories are of increasing relevance in the context of modern international conflict (in the broadest sense) and inter-State competition, particularly in relation to the regulation of hostile cyber activity between States. Unfriendly acts denotes State activity which, while lawful as a matter of international law, would nonetheless not be welcomed by the States it targets. Retorsion covers another sub-set of lawful but unfriendly State activity, substantively the same as unfriendly acts but done in response to prior unwelcome acts of other States. Having defined these categories, including by reference to a survey of contemporary State practice and judicial treatment, this article then considers why their utility and relevance to States are increasing. The article ends on the cautionary note that while unfriendly acts and retorsion may be increasingly necessary and desirable to States as international law tools as hostile activity occupies more of the space below forcible acts, they equally need to be properly understood and ‘handled with care’ by international lawyers, to ensure they are not bestowed with legal characteristics they do not possess, unduly constraining States in the process. The risk of misuse of these categories by States also needs to be kept in mind.

Ways of Being Together During the COVID-19 Pandemic: Support Bubbles and the Legal Construction of Relationships.

This article focuses on the concept of the support bubble. The concept was introduced in New Zealand in March 2020 in the context of the COVID-19 pandemic to denote a network of people with whom a person could have physical contact, and was later taken up in various forms elsewhere, particularly in the UK. The article focuses on the meaning that was attached to the concept and to the ways of being together that it encapsulated and stipulated. Where support bubbles were formalised as a matter of law, as in New Zealand and the UK, a particular form of relating was legally constructed and real relationships were affected through law. The article addresses the meaning and implications of the concept of the support bubble in this light. First, it considers the concept of the support bubble as a new legal form, which drew in, and built on, a range of relationships and then recast them in terms of a new legal form. Second, it analyses the central question posed by the concept as one of the meaning of being together in a support bubble, not only for those navigating and living with the concept in practice, but also as mediated in and through law. Third, it outlines how the concept of the support bubble represented a distinct legal development. It enabled those who were eligible to define for themselves, albeit within a specified framework, the meaning and nature of a relationship of support of this kind. It also supplied a space in which some kinds of relationships that had not necessarily attracted much previous legal attention—like friendships and dating relationships—came to find a degree of legal reflection and recognition.

Beyond Belief: How the "Corroboration Rule" in Malawi Obstructs Justice for Victims of Sex Crimes and Discriminates Against Women and Girls on the Basis of Sex—A Call for Legislative Change


 
 
 Sexual abuse against women and girls in Malawi is pervasive, and survivors face significant barriers in their quest for justice. One particular barrier—the “corroboration rule”—stands out as a discriminatory and onerous roadblock for women and girls who seek justice as victims of sex crimes.
 The corroboration rule is a common law rule of evidence and criminal procedure that requires prosecutors trying sex offence cases to have independent evidence in addition to a victim’s testimony, even if that testimony is credible and shows beyond a reasonable doubt that the defendant committed the sex crime. This heightened evidentiary standard for victims of sex crimes is based on the stereotype that women and girls are apt to lie about being raped and that their word alone—no matter how clear, convincing, or credible—should not be enough to put a rapist behind bars. Because of the rule, too many women and girls in Malawi are not treated equally in the criminal justice system, and rarely are those who sexually abuse them brought to justice in court. This fosters a climate of impunity for rapists and sexual abusers.
 
 
 
 While many countries around the world used to require the corroboration rule in sexual offences, in the modern era, Malawi stands apart from the rest of the world as one of the few countries that still requires its use as a matter of common law. However, with a constitution that guarantees equality for women and girls and equal access to justice under the law, and as a State Party to treaties that guarantee the same, Malawi’s Parliament should abolish the corroboration rule.
 
 
 
 
 

Dapatkah Anak Indonesia Diadopsi oleh Orang Asing Ditinjau dari Aspek Hukum Perdata Internasional

International adoption of Indonesian child is a part of International Private Law matter, such as there was a case that is done by a white person who discovered by the police while taking 9 babies (one untul three months old) in the Airport of Kemayoran, Jakarta, which is suspected as babies trafficking. Or, there was the desire to do an Indonesian child legal adoption of wealthy Singaporean couple without knowing the procedure. The member of Babies trafficking fenomenont has been increasing since the economic crisis happened in July 1997 and the globalization era of free trade, where the border among States lessen (boarderless state). Due to the International Private Law, the writer tried to elaborate whether the Indonesian Child can be adopted by foreigners. If it is possible, which law may be used? Is it The Adoptant Law or the Adoptandus Law? If the Indonesian child may be adopted by the foreigners, what are the requirements? Considering the different law systems of international adoption between States, then how is the international community fort to handle the problem? And how does Indonesia handle this International Private Law problem?

Virtual property: trusts of cryptocurrencies and other digital assets

Abstract The question whether digital assets such as cryptocurrencies are “property” as a matter of law has been the subject of academic debate almost since the inception of the bitcoin network in 2009. The question arises from the fact that such assets, and cryptocurrencies in particular, do not fit into traditional categories of property as understood by the common law, being neither “choses in possession” nor “choses in action”. However, following a series of decisions in the last couple of years, it now seems reasonably settled that this question will be answered in the affirmative, although no cases have so far reached the highest level of the courts. The consequences have yet to be worked out. One obvious consequence is that cryptocurrencies can be the subject of a trust. However, the unique features of digital assets give rise to a number of interesting problems, both theoretical and practical, on which there is little authoritative guidance.

The role of Legal Aid NSW in addressing the civil legal needs of participants in High Intensity Units (HIPUs) in prisons

ABSTRACT Legal Aid NSW civil lawyers provide community outreach clinics and civil legal assistance to address the civil legal needs of participants in High Intensity Program Units (HIPUs) in prisons in New South Wales (NSW), Australia. Semi-structured interviews were conducted with Legal Aid NSW staff to explore their work in HIPUs. Interviews focused on the types of civil legal issues faced by HIPU participants, the value of providing such services in the HIPUs and the challenges and barriers associated with this work. The findings indicated that HIPU participants have a range of civil legal needs including issues relating to housing and tenancy, outstanding debts, welfare payments, victims’ compensation, driver disqualification, tort claims and family law matters. Successful resolution of these matters can be critical for ensuring the best chance of post-release desistance from crime. However, provision of civil legal services in prisons can be adversely impacted by practical and operational issues attributable to the time- and resource-intensive nature of this work. Some of these barriers include considerable travel times to prison, delays upon arrival at the prison and unexpected lockdown procedures.

KAKO ZAKONSKI REGULIRATI OBITELJSKU GRUPNU KONFERENCIJU U HRVATSKOJ?

HOW TO REGULATE THE FAMILY GROUP CONFERENCE IN CROATIA Taking into account the proclaimed aim of the Strategic Plan of the Ministry of Demography, Family, Youth and Social Policy 2019 − 2021, namely, social empowerment and protection of families, children and young people through enhancing family protection and supporting families at risk as a preventive measure of institutionalisation, this paper seeks to discuss the question of how law and legal forms can be used to strengthen families at risk, activate their resources, create a family group network and plan to address family law conflicts of interest and problems. This is done through determining and analysing the procedure and principles of a family group conference, as an alternative to the administrative and/or judicial one in matters of family law and social protection of children and families. For the purpose of reflection and projection, de lege ferenda, on the family group conference in the field of (administrative and judicial) family law and social protection of family members in Croatia, the New Zealand family group conference model, as a starting point for the development of this procedure, and certain European comparative law systems and good practices (the United Kingdom, the Netherlands, Norway) are analysed and discussed in the paper. In particular, open questions about the »right« to the family group conference, the assessment and criteria for referring family members to the conference, including the fact of initiation of the court procedure or if the proceedings are already pending, as well as the legal force or effectiveness of the plans achieved in the family group conference will be discussed. Key words: family group conference; child, family; social welfare center; court

Coast Guard Law of the People’s Republic of China and Its Implications in International Law

Abstract In January 2019, the People’s Armed Police set up a working group to draft the Coast Guard Law of the People’s Republic of China. The 13th National People’s Congress Standing Committee concluded its twenty-fifth session and scrutiny of this draft law, which officially entered force on 1 February 2021. The Law is divided into 11 chapters and 80 articles, including but not limited to maritime security, maritime crime investigation, use of non-firearm and weapons, and international cooperation. This article outlines and analyses the Law, as well as focusing on its implications as a matter of international law.

Asymmetric cross-citations in private law: An empirical study of 28 supreme courts in the EU

Recent years have seen a growing volume of research on citations between courts from different countries. This article fills a gap in the current literature by presenting and analysing cross-citations between the highest domestic courts responsible for matters of private law in the EU from 2000 to 2018. It addresses two main questions: first, to what extent do judges cite foreign case law in their decisions? Second, what may explain the varying levels of engagement of supreme courts with foreign case law? Our findings offer a mixed result as to the nature and frequency of such cross-citations. Overall, we identify 2984 cross-citations; yet, only in few instances do we find a reciprocal relationship between the supreme courts of two countries, while more generally an asymmetric picture emerges. The article also discusses whether problems with the ease of access to court decisions may partly be responsible for limitations in the use of cross-citations.

The enforcement of mandatory rules against illegal contracts

ABSTRACT Academic attention on the effects of mandatory rules on illegal contracts has so far been primarily directed at the categorization of illegalities and the identification of those types of illegal contracts that should or should not be invalidated in accordance with the significance of their illegality. When defending the validity of certain categories of illegal contracts, current legal scholarship usually takes it for granted that competent regulatory agencies could monitor such contracts and enforce violated rules effectively. Our empirical studies of the practical enforcement of mandatory rules against illegal lottery sales in China suggest, however, that such an assumption is largely illusory. We argue that it is institutionally efficient that the courts transmit the information of illegal transactions to competent regulatory agencies when dealing with civil law matters involving illegality. Institutional reforms or technological changes should be implemented so as to incentivize judges to routinely transmit such information.