Principle Of Proportionality Research Articles

The Expediency of Administrative Acts and the Principle of Proportionality

Inexpediency is a reason for the annulment of the administrative act when the same is challenged in an administrative procedure before the immediately superior administrative body. We can talk about the expediency of the administrative act only when the act is issued under the conditions of operational autonomy. In legal reality, the addressees of administrative acts rarely contest their expediency. The reason for this is that the expediency of the administrative act cannot be challenged in a court of law, but only in an administrative one, and that before an administrative body in the same state structure as the issuer of the act, which leads to a lack of objectivity and impartiality in the exercise of administrative authority control for the expediency of the administrative act. In addition, despite its legal importance, the legal framework of this legal institute is extremely scarce, which makes it difficult for its proper application by the administration. It is necessary to distinguish between the expediency of administrative acts, their inconsistency with the purpose of the law, and the principle of proportionality, although all three institutes have many similarities.

The Principle of Proportionality and Operational Autonomy

This article aims to highlight the importance of the principle of proportionality as a basic principle in the administrative process. Through its prism, it examines the issues related to the acts of administrative bodies issued under conditions of operational autonomy, as well as under bound competence. It focuses on the administrative control and judicial supervision of these acts, analyzing their limits and legal consequences.

Collection of dna and the Creation of dna Databases in India: A Proportionality Analysis on Whether There is a Violation of Genetic Privacy

Abstract Genetic information, which can be processed from human bodily samples, contains three major types of information: first, individual traits such as the skin colour, race, eye colour, and height of the data subject; second, medical information such as information about genetic diseases and genetic predispositions; and third and most importantly, it can provide information about a class of persons who are genetically related to the data subject. Genetic data has huge application potential, from criminal investigations to assisted reproductive techniques. Thus, it is the most sensitive form of personal data. The concept of privacy in India has also evolved by way of judicial pronouncements and, in the case of K.S. Puttaswamy v Union of India, it was recognised as a fundamental right. The Indian Government has passed the Criminal Procedure Identification Act, 2022, which allows for the collection of measurements – including genetic samples – and authorises the National Crime Records Bureau to collect, store, process, share, and disseminate such data. In light of the above developments, this article analyses the constitutionality of section 3 of the Criminal Procedure Identification Act, 2022 through the lens of the principle of proportionality.

Questions de santé mentale et de libertés au croisement des dilemmes soignants remontés aux espaces de réflexion éthique régionaux

The action of the Regional Ethical Reflection Spaces does not only concern the field of contemporary bioethics but also affects many issues concerning mental health that we may have to face in clinical practice and teamwork. To keep trying to identify the conflicts of values in ethical issues is an absolute necessity, which implies that we support a “living together” relying on a “thinking together” for both the sake of each of us and for the sake of all of us. Our duty is then to resist collectively to prevent any possible deleterious excesses on both human and therapeutic points of view. Moreover, to focus on the principle of proportionality in complex medical decisions in the field of mental health requires at the same time a balance between the protection, the safety and the respect of the fundamental freedoms and a balance between the public interest and the individual needs. Such arbitration demands a strong focus on the ethical reflection so as to avoid decisions simply oriented towards the health dimension and recorded without any consideration for the health democracy. The referrals of the ethical support cells in Brittany and everywhere in France bring to light the challenges we met on the field. In particular those aroused during the COVID crisis concerning the institutional decisions, to take care of the mental health of patients at the end of their life or when facing treatment of resistant diseases. These situations raise some critical issues about the respect for the dignity and the humanity of the people we take care of. It thus seems necessary to respect an ethical code of human understanding, with poise and right balance, relying on a collegiate discussion. Besides, receiving end of life care will today requires the development of a palliative psychiatry in France, which becomes a priority. This could enable us to lead to fairer and equitable care, respectful of the individual freedoms, and a care better adapted to the specific needs of the patients in great psychological suffering. Especially in places where vulnerability is at stake, such as the retirement homes, to maintain a better articulation between the principles of beneficence and of nonmaleficence.

Revenue distribution in streaming

The streaming industry has experienced exponential growth over the past decade. Streaming platforms provide subscribers with unlimited access to a diverse range of services, including movies, TV shows, and music, in exchange for a subscription fee. We take an axiomatic approach to the problem of how to share the overall revenue obtained from subscription sales among services or content producers. In doing so, we provide normative justifications for several distribution rules. We formulate several axioms that convey ethical and operational principles. In the first group, we consider properties that guarantee equal and impartial treatment of services and subscribers. In the second group, we introduce requirements designed to safeguard allocation schemes from inconvenient alterations, namely, changes in the units of measurement of inputs, subscription sharing, or group decomposition. Our analysis reveals that different combinations of these axioms define two classes of rules that strike a balance between three focal schemes, each representing distinct perspectives on the egalitarian and proportional principles. To illustrate the practical implications of our theoretical model, we explore its potential application by assessing how various types of content impact the revenues of some of the most well-known Twitch streamers.

Judicial Interpretation of the Inclusion of Standard Clauses in Murabahah Contracts Reviewed from the Principle of Proportionality and Islamic Law

Agreements are an important aspect of law relating to business. An agreement basically must fulfill several conditions for the validity of the agreement, as well as paying attention to the legal principles of the agreement. In practice in banking, including Sharia banking, generally agreements or contracts are made using standard clauses. The aim of this research is to find out Juridical interpretation of the inclusion of standard clauses in murabahah contracts in Islamic banks in terms of proportional principles and Islamic law. This research is normative legal research using statutory approaches, legal principles and Islamic law. The results of this research show that the juridical interpretation of the inclusion of standard clauses in murabahah contracts contains elements of a combination of positive law and Islamic law. The inclusion of standard clauses in a murabahah contract must be interpreted contextually, both in terms of the object being traded or the subject matter of the parties involved in the contract.

The Purpose of Establishing Zones with Special Conditions for the Use of the Territory as Constitutional and Legal Values

The author, studying the judicial practice of higher courts and scientific literature, analyzes the nature of the objectives of establishing zones with special conditions for the use of territories, their relationship to each other and the relationship with the types of zones. As a result, the work concludes that many types of ZOUIT have several purposes of establishment at once.Аlso it is not possible to correlate individual types and goals of ZOUIT in all cases. That’s why more important is the conformity of the type of ZOUIT to constitutionally significant values, than to the objectives of establishing. And, the final conclusion is that establishment of a ZOUIT must comply with the principle of proportionality.

What would it take? The potential and limits of proportionality analysis in law

ABSTRACT Proportionality has become one of the primary standards for violations of fundamental and human rights in various constitutional and international jurisdictions. Proportionality in the strict sense requires a comparison of the infringement of a right with the achievement of a state interest pursued by a measure. The incommensurability of the two is an often-raised challenge to this comparison. The Article does not adopt a fully-fledged sceptical stance. Instead, it looks to proportionality as a means of overcoming the challenge of incommensurability. It then examines the structure of comparisons in general and of comparisons of incommensurables employing proportionality in particular. As for the latter it focuses on its performance by exploring the example of decathlon, where this type of comparison works exceptionally well. The example allows us to analyse the preconditions for comparing incommensurables. Unfortunately, most of these preconditions are lacking in the law. This explains why the proportionality principle in law only produces convincing results in cases where the disproportionality is very pronounced. In many other cases, however, the courts decide based on proportionality as well. This raises the question: What is really going on in these cases? The article concludes with a brief account of a benevolent explanation.

La reciente reforma del tipo penal de lavado de activos de origen ilícito a la luz de los principios de lesividad, proporcionalidad y subsidiariedad

Law N° 27.739 modifies the criminal offense of money laundering in its base figure and in itsattenuated figure. In both cases, the modifications must be evaluated in light of constitutional rinciples. The increase in the objective condition of punishability and the approval of an update formula tied to the minimum salary is more respectful of the principles of harmfulness and proportionality than the establishment of a static monetary amount in pesos. However, the reference to an extra-penal law generates certain inconveniences. For its part, the attenuatedfigure, now limited to a fee, generates discussions in relation to the principle of subsidiarity and the danger – even in an abstract way – of the economic and financial order. Finally, the mode of application of the most favorable law must be correctly evaluated.

Derechos Humanos y estándares de investigación: una mirada desde la intervención de las comunicaciones en el proceso penal cubano.

The purpose of the article is to argue, from a look at the human rights of privacy and the secrecy of communications, the significance of the principles of legality, proportionality and strict necessity, as investigative standards, which inform the intervention of communications in the Cuban criminal process and the role that the Prosecutor plays in this to guarantee the legality of such investigative acts, based on the challenges imposed by Law 143 of 2021 “On criminal proceedings”. It is posed as a research problem: what are the research standards on which the interventions of communications in the Cuban criminal process must be based, which guarantee the exercise of the rights of privacy and the secrecy of communications? As a hypothesis, the existence of investigative standards in the interventions of communications in the Cuban criminal process is stated, which would guarantee the exercise of the rights of privacy and the secrecy of communications. The research methods of analysis-synthesis, historical-legal and exegetical analysis were used, as well as document review, which allowed us to offer final considerations on the topic.

Standards for the implementation of the right to pension provision for persons discharged from military service in the decisions of The Constitutional Court of Ukraine

This article examines the special legal status and specific nature of the right to social protection afforded to military personnel serving in the Armed Forces of Ukraine and other military formations, as well as to persons discharged from military service. It is substantiated that the special nature of social protection for this category of persons is determined not by their disability or lack of livelihood, but by the specifics of their professional duties. The article examines the legal acts that determine the conditions, norms, and procedures for pension provision for persons discharged from military service. The article establishes the specifics of the implementation of the right to the following types of pensions by persons discharged from military service: 1) for long service; 2) for disability; 3) in case of loss of breadwinner. It is argued that the pension of a person discharged from military service, as a form of social security provision, must comply with one of the fundamental sectoral principles enshrined in the Constitution of Ukraine – guaranteeing a decent standard of living for all citizens. The article establishes that the subsistence minimum, as a minimum standard of social protection, is characterized by the regulation of its purpose and the systematic nature of payments. It is proven that an important principle of pension provision for persons discharged from military service is the principle of legal certainty. The article analyzes the understanding of the content of the principle of legal certainty formulated in the decisions of the Constitutional Court of Ukraine, according to which this principle means that legislative bodies should strive for clarity and unambiguity in their lawmaking activities, and a person should understand which rule of law applies in their case and have a clear understanding of the occurrence of specific legal consequences. The article provides examples of violations of the principle of legal certainty in the context of pension provision for persons discharged from military service. The article analyzes the understanding of the principle of proportionality in the field of social protection proposed by the Constitutional Court of Ukraine, according to which this principle means that the measures provided for in legal acts should be aimed at achieving a legitimate goal and be proportionate to it.

TANGGUNG JAWAB NEGARA ATAS PELINDUNGAN OBJEK SIPIL PADA KONFLIK BERSENJATA BERDASARKAN PRINSIP PROPORSIONALITAS DALAM HUKUM HUMANITER INTERNASIONAL

In IHL, there is the principle of proportionality, namely in the case of carrying out an attack, both the means and the method, the damage that will be suffered by the civilian population or civilian objects must be proportional in nature and not excessive in relation to the acquisition of real and direct military benefits that can be predicted as a result of the attack on military targets. But in reality, in an armed conflict, there must be many victims, both from those who participate and those who do not participate in the war, and cause damage to civilian objects, either intentionally or unintentionally. Therefore, the research problem is how the act of attacking civilian objects in armed conflict based on the principle of proportionality; and how the state's responsibility for the protection of civilian objects in armed conflict based on the principle of proportionality. The results of the research concluded that (1) During armed conflict, it is still necessary to fulfill the principles and provisions in IHL, one of which is the principle of proportionality based on Article 57 paragraph (2) (a) (i to iii) of Additional Protocol I, 1977. The party that will carry out the attack has the obligation to gather information in advance before and at the time of the attack in order to know that the target to be attacked is a military target, not a civilian object. Then take all precautions in choosing the means and methods of attack, so that the damage to be suffered by the civilian population or civilian objects is proportionate and not excessive in relation to the acquisition of real and direct military advantage; (2) In the event of an attack on civilian objects in armed conflict, the attacking state must be responsible for all internationally wrongful acts, which result in damage and loss. This is stipulated in ARSIWA 2001, Article 2. In IAC, the 1907 Hague Convention IV, Article 3; the 1949 Geneva Conventions, namely Article 51 of Geneva Convention I, Article 52 of Geneva Convention II, Article 131 of Geneva Convention III, and Article 148 of Geneva Convention IV, 1949; Additional Protocol I, 1977, Article 91 apply. In NIAC, Article 3 of the Geneva Conventions 1949 applies.

Merger remedies in the era of the Digital Markets Act (DMA): the impact of the DMA on the EU Merger Control Regulation (EUMR) in designing commitments

ABSTRACT The Digital Markets Act (DMA) and the EU Merger Control Regulation (EUMR) are complementary tools that could apply concurrently to mergers involving gatekeepers. Yet, potential tensions between the DMA and the EUMR have been unexplored. It is this paper's objective to shed light on the interplay between the EUMR and the DMA, in the context of commitments design for gatekeeper acquisitions. This paper argues that the DMA could influence the EUMR in designing remedies, since these tools may be taking a similar approach to addressing the harmful effects of gatekeepers’ practices. Accordingly, the new DMA obligations could impact future commitments design under the EUMR in two ways. First, at the theory of harm stage, because of the DMA's deterrent effect. Second, at the remedy design stage, because of the principle of proportionality. Therefore, the DMA could restrict the EUMR's power to design merger commitments, in the context of gatekeeper acquisitions.

Reforming Post-Arrest Bail in Pakistan: Lessons from a Comparative Study with India

This research paper presents a comparative analysis of the legal frameworks governing post-arrest bail in India and Pakistan, with a focus on the statutory provisions, judicial interpretations, and procedural safeguards that are involved. Although both states share a common legal heritage which is rooted in British colonial law, however, they have diverged in their approaches to bail, which are influenced by their respective constitutional mandates, legislative developments, and sociopolitical landscapes. This comparison is essential in order to understand how these legal systems are balancing individual rights with societal security and how judicial discretion are shaping bail in each country. For this purpose, this paper examines constitutional provisions besides main statutory provisions of the Indian and Pakistani criminal procedural laws, the role of judicial discretion and evolving jurisprudence of the post-arrest bail. This study offers insights into potential legal reforms, with an aim to enhance fairness and consistency in bail practices, through juxtaposing these principles in India and Pakistan. This study concludes that Pakistan should consider restructuring its bail procedural laws and system, and it suggests reforms taking into account the benefits of India’s progressive legal framework, to ensure consistency, fairness, and the protection of individual rights. This research also recommends future studies on balancing bail and incarceration, through focusing on judicial discretion and the application of the principle of proportionality.

Direito administrativo da alimentação e nudge: alimentação saudável e proporcionalidade

Administrative food law is moving towards a framework that promotes healthy eating, not only in terms of governance, safety and food labelling, but also by introducing behavioural science concepts as interventions to encourage better eating habits. Although nudges arouse the interest of authorities due to their non-coercive nature in influencing consumer behaviour, they bring legal and administrative challenges. This article explores the relationship between administrative food law, nudges and the complexities of their legality. By examining cases of nudges on eating habits, their effectiveness and alignment with administrative regulations, the article seeks to address the question of how to strike a balance between the potential benefits of such interventions in promoting healthier diets and the principle of proportionality. It concludes that nudges for healthy eating should not be purely paternalistic in order to pass the necessity test of the proportionality principle, but are unlikely to be a suitable measure from the point of view of effectiveness.

Truly Risk-based Regulation of Artificial Intelligence How to Implement the EU’s AI Act

Abstract The Artificial Intelligence Act (AI Act) of the European Union (EU) claims to be based on a risk-based approach to avoid over-regulation and to respect the principle of legislative proportionality. This paper argues that risk-based regulation is indeed the right approach to AI regulation. At the same time, however, the paper shows that important provisions of the AI Act do not follow a truly risk-based approach. Yet, this is nothing that cannot be fixed. The AI Act provides for sufficient tools to support future-proof legislation and to implement it in line with a genuine risk-based approach. Against this background, the paper analyses how the AI Act should be applied and implemented according to its original intention of a risk-based approach, and what lessons legislators around the world can learn from the AI Act in regulating AI.

The Difference between the Principle of Proportionality and the Principle of Equality as the Standard of Constitutional Review on Laws and Regulations: An Analysis of the TCC Judgment 113-Hsien-Pan-6

The Difference between the Principle of Proportionality and the Principle of Equality as the Standard of Constitutional Review on Laws and Regulations: An Analysis of the TCC Judgment 113-Hsien-Pan-6

New Practice of Environmental Governance in China

Abstract Preventive environmental civil public interest litigation is an institutional innovation of environmental governance in China. Previous research primarily focuses on the implementation of prevention principles and environmental risk management; however, it fails to identify the significant risks in the new practice. There are significant risks that human behaviour may result in the creation of radioactive toxins and contaminants that are not perceptible to humans and which may have dramatic short- or long-term effects on plants, animals, and humans. This paper seeks to close this research gap. A review of typical cases revealed three elements that judges should consider when identifying significant risks in preventive environmental public interest litigation. Firstly, the significant risks involved in the case must be directly related to the public interest. Secondly, the probability of significant risks occurring should be emphasised. Thirdly, the proportionality principle should be adhered to in deciding on preventive means to be used in the case. We found some ambiguities and defects in the identification of significant risks. This article makes proposals to improve environmental legislation and application ambiguities in new practice in order to contribute to better environmental governance.

How to interpret Jiangnan gardens: a study of the spatial layout of Jiangnan gardens from the perspective of fractal geometry

This study contributes to design studies by offering a novel approach to understanding the spatial layout of Jiangnan gardens through the lens of fractal geometry. Analyzing 106 gardens, we found that the ideal fractal dimension range for Jiangnan gardens is 1.148 ~ 1.276, with gardens in the 2500 ~ 7200 m2 range exhibiting the highest complexity (1.238 ~ 1.276). Additionally, for gardens ranging from 2500 ~ 20,000 m2, the maximum spacious space area stabilizes, no longer expanding indefinitely with overall area. This suggests a design principle of spatial proportion and balance. By quantifying spatial complexity and the contrast between spacious and profund spaces, the study provides a new method for evaluating garden design and can help students and designers better apply the principles of Jiangnan garden design.

Collateral kids: Weighing the lives of children in targeting

Abstract The principle of proportionality under international humanitarian law prohibits an attack if the expected harm to civilian persons and objects is excessive in relation to the anticipated concrete and direct military advantage. In this article we argue that, when applying the principle of proportionality, the incidental harm to a child must be given a higher value as compared to incidental harm to an adult. This reflects the broader framework of international humanitarian law, which creates stratifications amongst different groups of civilians and provides special protection for children in times of war. This aligns with the practice of many militaries, which tends to implicitly assign a heightened worth to the lives of children due to moral and political considerations. Such reasons stem from the perceived vulnerability of children as well as their moral innocence reflecting harmlessness and blamelessness. Indeed, harm to children’s lives tends to generate a greater backlash among the community to which they belong and, as a result, a military disadvantage. We argue that the greater weight assigned to the lives of children in proportionality assessments is not simply a matter of morality or strategic calculations, but in fact a requirement from a more wholistic interpretation of international humanitarian law.