Protection Of Human Dignity Research Articles

Parâmetros de indenização dos danos morais no Direito do Trabalho

O presente artigo tem como objetivo analisar os parâmetros para quantificação das condenações por danos morais introduzidos pela Reforma Trabalhista (Lei nº 13.467/2017) e busca avaliar se estes parâmetros contribuem para a proteção simbólica da personalidade. O artigo se inicia com uma reconstrução histórica do instituto do dano moral e apresenta discussão sobre seu legado para nossa sociedade e para o Direito Privado. Em seguida, a reflexão situa os danos morais dentro do marco da proteção à dignidade humana e apresenta seus desdobramentos para os direitos da personalidade. Posteriormente, apresenta-se discussão jurídica sobre o instituto do dano moral individual e o papel das sanções de natureza civil, introduzidas historicamente pelo Direito Moderno, na proteção dos direitos da personalidade. Por fim, à luz das reflexões teóricas sobre o dano moral, o artigo avalia as inovações trazidas pela Reforma Trabalhista quanto aos parâmetros de quantificação dos danos morais e se tais inovações permitem interpretação conforme da legislação vigente sobre dano moral.
 
 PALAVRAS-CHAVE: Dano moral. Direitos da Personalidade. Reforma Trabalhista. Critérios para fixação. Função preventiva fiduciária.

Реализация минимальных прав вынужденных мигрантов в странах Европейского союза: опыт Итальянской Республики и Королевства Испания

INTRODUCTION. Forced migration is one of the most difficult global problems. There is a clear interdependence between the problem of refugees and the issue of human rights, since human rights violations are one of the main reasons for the mass exodus of people from their countries of origin. It is also clear that counties that provide asylum have a sustainable practice of respecting the human dignity. Forced migrants have rights that must be respected during all stages of the exodus. We are talking about the fundamental rights and freedoms proclaimed in international and regional human rights treaties, primarily the protection of human dignity and the restoration of the minimum rights of people who left their countries of origin. This article discusses the problems of realization of the minimum rights of forced migrants, that is, those rights that guarantee survival and an adequate standard of living. The authors conduct a detailed study of national legislation in the field of forced migration of such European countries as Italy and Spain. In particular, this article analyzes recent legislative changes adopted in this countries in the field of asylum and the consequences for the realization of fundamental rights of refugees and asylum seekers. MATERIALS AND METHODS. This research is based on the analysis of the Universal Declaration of Human Rights of 1948, the International Covenant on Economic, Social and Cultural Rights of 1966, the Geneva Convention relating to the Status of Refugees of 1951, the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, European Social Charter of 1961, European Union Charter of Fundamental Rights of 2000, UNHCR standards for receiving asylum seekers, and also an in-depth analysis of the national legislation of Italy and Spain in the field of forced migration. The methodological basis of the research consists of both general scientific (comparative historical and statistical methods, methods of generalization and systems analysis, case-study approach) and specific scientific (formal legal and comparative legal methods, method of interpretation of legal norms) research methods. RESULTS OF RESEARCH. On the basis of the analysis of international treaties, European and national legislation, judicial practice of states, as well as doctrinal studies of different researches, the authors formulate some conclusions related to the main problems of legislative regulation and the implementation of minimum rights of forced migrants in such EU member states as Italy and Spain. DISCUSSION AND CONCLUSIONS. Despite the existence of international and, in particular, European standards in the field of human rights, practically those rights that are necessary for survival and maintenance of an adequate standard of living of people who have applied for asylum are not always fully respected. The experience of the Italian Republic and the Kingdom of Spain shows that fundamental rights of refugees can be often violated both during the examination of asylum applications and after their satisfaction. The absence of a unified legislative base, the tendency to pursue a more restrictive policy in the field of forced migration and unresolved problems of asylum legislation entail significant impediments for the realization in these countries of the basic rights of one of the most vulnerable category of people as forced migrants.

INTRABRANCH PRINCIPLES OF GENETIC INFORMATION PROCESSING

The principles of emerging legislation devoted to the processing of genetic information take their place among the informal legal phenomena. The identification of these principles is the task of the legal science and, in particular, of data protection law. From the point of view of data protection law, the article presents a new author’s approach to the construction of the system of principles of the legal regulation of genetic information. These principles include: the principle of responsibility to future generations; the principle of freedom of scientific research; the principle of protection of human dignity; the principle of privacy. Genome protection is aimed not only at preserving the life and health of a particular person, but also at preserving the genome of his or her descendants. This makes it possible to consider the genome as a heritage of mankind. Freedom of scientific research in the field of genetics implies the freedom to study genetic information, but not the freedom to use it. With regard to scientific research of genetic information of representatives of a particular population, in addition to individual consent to the processing of such information, allowance is made for the consent expressed through the legitimate representatives of the groups or peoples concerned. The ideas of extended and open consent of the person to the processing of genetic information are analyzed. The conclusion is made about the necessity of fixing the system of principles of legal regulation in the field of genetic information processing in a special law «On genetic information.»

Transboundary river basins, their hidden realities

A World Family Portrait is a joint project of the Consortium for Comparative Research on Regional Integration and Social Cohesion (RISC) and Regions & Cohesion. It aims to promote interdisciplinary and cross-cultural communication through images and essays on the different faces of humanity, including, but not limited to, our similarities and our differences, our strengths and our weaknesses, our hopes and our concerns, our legacies and our aspirations, as well as our interactions with each other and our world. This project seeks to establish a dialogue between human experiences, academic reflections and shared ethics, such as mutual respect, the protection of human dignity and solidarity.

The Right to Work as a Fundemantal Human Right

The right to work is a fundamental human right ensuring that every individual shall be able to continue their lives with a desired job and an income allowing the protection of human dignity. The right to work is directly related with the right to live of the working class that tries to live on their labor. Therefore, the right to work is the quest for a right based on life under a social order allowing every individual to have a job and income for continuing their lives in addition to protecting their dignity while allowing personal development and individual freedom. In this view, this study is based on the right to work which is a fundamental human right has been taken into consideration from the international human rights law perspective. Because of that firstly the concept of human rights and its historical development have been underlined. After then, it wants to take attention to emphasize of work right in concept of human rights. In this context, demand right to be employed, working right at a job which freely gained, the right to protection against the termination of labour contract and the right to use of freedom of association and union rights have been discussed.

2PN cell donation in Germany. Or: How the German Embryo Protection (Act) undermines itself.

In contrast to embryo donation, the permissibility of 2PN cell donation is highly controversial in Germany. This article is based on there being a legal loophole with respect to 2PN cell donation, which results from an inconsistency within the Embryo Protection Act on the normative status of 2PN cells. Following that thesis, the article argues that, on the basis of the normative criterion totipotency (i.e. the capacity to develop into a born human being), 2PN cells should also be considered human embryos within the meaning of the Act and thereby be protected by that Act in the same way as embryos. However, the normative assumption that 2PN cells should already be endowed with human dignity and the right to life has absurd consequences. Moreover, the consistent continuation of the Embryo Protection Act, as well as of the underlying ethical position or argumentation (i.e. the potentiality argument), leads to the even more absurd consequence of having to place every human somatic cell under the protection of human dignity and the right to life. As totipotency or the developmental potential therefore cannot delimit entities considered worthy of protection (i.e. human embryos) from entities considered not worthy of protection (i.e. 2PN cells, gametes, hESC, hiPSC and human somatic cells), it is not a suitable normative criterion. As a paradigmatic case, 2PN cell donation demonstrates that by retaining this normative criterion the now obsolete German Embryo Protection (Act) ultimately undermines itself.

EQUITY, REVENGE PORN, AND CAMBRIDGE ANALYTICA: THE DOCTRINE OF CONFIDENCE AS A PROTECTION FOR HUMAN DIGNITY IN THE TECHNOLOGIAL AGE

Breach of confidence is an equitable action that is increasingly significant for the protection of human dignity in the technological age. Its scope extends beyond the economic interests which more frequently invoke equity, to protecting dignity where an individual’s privacy interests have been violated. This paper considers the history of case development that consolidated the ability of confidence to protect dignity in its own right. It then looks at two contemporary contexts where new technologies necessitate the application of confidence to dignitary concerns: specifically, “revenge porn” cases where an individual abuses an intimate partner’s trust and privacy and in “data breach” situations where much larger entities release information of a data subject improperly. It is finally theorised that equity’s basis in conscience makes confidence well suited to protecting interests that are dignitary, rather than economic, in character. The contribution of this paper to the existing field of literature is to establish the growing utility of the doctrine of confidence as a private law action to deter and redress misuses of private information that are facilitated and amplified by technological advances.

PERLINDUNGAN NEGARA TERHADAP HAK KEBEBASAN PRIBADI DALAM PERSPEKTIF HAK ASASI MANUSIA

The concept of human rights is a long-standing thing in human life on earth. The study of human rights in the form of thought has existed since the time of the Greeks. In Indonesia Law No. 39 of 1999 on Human Rights states that human rights are a set of rights that are inherent in the nature and existence of human beings as creatures of God Almighty and is a gift that is obliged to be respected, upheld and protected by the State, government and every person for the honor and protection of human dignity and dignity. The freedom of personal belonging to it which represents independence presupposes public opinion without interference, obstacles, interference and pressure. In practice there are still rulers who do not provide a good room for the delivery of this right. Enforcement of the rules of freedom of expression is still a struggle so that the goal can be achieved.

How Do Hospitalized Adolescents Feel Safe? A Qualitative Study.

The feeling of safety makes an important contribution to the sense of well-being and quality of care for hospitalized adolescents, who are at a higher risk of feeling unsafe. Feeling unsafe during hospitalization may have a negative impact on recovery. Nurses must be sensitive to the possibility that patients feel unsafe, even in the absence of obvious direct physical threat. This study explores the experiences of hospitalized adolescents to obtain an understanding of psychological safety. A qualitative study using unstructured interviews was conducted to explore the sense of psychological safety of hospitalized adolescents aged 12-18 years and registered in a general medical or surgical pediatric unit. Purposive sampling was used to recruit new qualified participants until data saturation was reached (N = 16). Psychological safety is reflected by the four themes of receiving comprehensive support, protection of human dignity, relaxing environment, and attempts to adapt. Hospitalized adolescents stated that healthcare services should provide comprehensive support in a relaxing environment that allows them to retain their human dignity and that elicits feelings of psychological safety.

The Protection of Human Dignity in Hungarian Media Regulation

Most European legal systems have to face issues connected to the protection of human dignity. It is very difficult to make decisions, in terms of legislation and the application of the law, when the freedom of the press and the protection of human dignity are in conflict. Most European countries protect human dignity in media regulations through the general protection of honor and good reputation and the prohibition of hate speech against communities. However, this is not the only possible way to go. Our question is therefore whether we can assign a meaning to the right to human dignity that is different from the provisions guaranteeing the general protection of privacy. Every time a piece of media legislation expressly names dignity, we must presume that its meaning is different from that of the content of the right to honor and good reputation, which are also named in most cases. In this way we have the chance to examine the aspects of differentiation between this content and the specific provisions. Hungarian media regulations and the jurisprudence enforcing them tries to assign an independent meaning to the protection of human dignity (and human rights in general) in the media ever since 1996. Although the Hungarian media acts passed in 2010 triggered a considerable and Europe-wide debate, the question is not new at all. In most respects it is independent of the new Hungarian regulations. Accordingly, the essay below does not provide a general evaluation or analysis of the Hungarian media regulations. Instead, it focuses on the partial problem specified in this introduction and intends to provide a summary of the Hungarian responses to this question.

Declaración de inconstitucionalidad, modulación de efectos y buena fe del Estado en Brasil

Este artículo presenta un estudio del régimen de modulación de efectos de los actos declarados inconstitucionales por el Tribunal Supremo Federal de Brasil, introducido por una ley innovadora en materia de control de constitucionalidad: la Ley 9868/99. La investigación utiliza la técnica de revisión bibliográfica, legislativa y jurisprudencial con los siguientes objetivos: a) demostrar que la naturaleza de la inconstitucionalidad (nulidad y anulabilidad) no impide reconocer efectos a las leyes inconstitucionales, incluso en los regímenes de control que adoptan el dogma de la nulidad del acto inconstitucional; b) proponer una teoría interpretativa de la modulación de efectos centrada en los derechos fundamentales y la dignidad humana, y c) responder, con base en el principio de la buena fe, si el Estado puede, en definitiva, beneficiarse del reconocimiento de efectos de leyes que lesionan derechos fundamentales del sujeto, tales como la libertad y el patrimonio.

Rethinking International Investment Governance: Principles for the 21st Century

The objective of this book is to change the terms of the debate so that societal values and goals are at the center of discussions about each reform proposal and process. This book rethinks international investment law as a key system in global economic governance that should incorporate principles of transparency, participation, reciprocity, accountability, and subsidiarity. The book critically evaluates the current system of investment governance in light of those principles and goals. And finally, it proposes possible reforms – including multilateral reforms – that would realign the governance of international investment with 21st century goals including reduction of poverty and inequality, and protection of human dignity, the environment, and the planet.

The claim to attention of human dignity in relation to the displacement of the population: Germany’s experience

Purpose. In this article, the special administrative features of the determination of the expellee’s status will be analysed through the prism of human dignity as well as their use of rights and advantages according to German expellee law (the Federal expellee law, the version of 19May 1953) as a result of the expulsion of Germans from East Europe to Germany (later – the Federal Republic of Germany) from 1945–1949. Methods. Questions regarding the determination of the characteristic of the expellees as well as the use of rights and privileges of the displaced person according to German expellee law are determined by the teleological interpretation, the interpretation as per the wording of the Federal Expellees Law (Paragraphs 1 and 9 of the BVFG – Displaced Person’s Property – the prerequisite for the use of rights and benefits) and through the systematic and historical analysis of the development. Results. The respect and protection of human dignity as one of the core constitutional principles and the protect on of the subjective rights of the some of the most vulnerable people, such as those who are displaced constitute good indicators on the legal and practical levels for measuring the degree of democracy, legality, human rights, and social justice in a state. The question regarding espect for human dignity of those who are displaced, as discussion, is raised not only in relation to the actual exercise of rights, but already exists in relation to the recognition of the status of the displaced person and that person’s access to the special rights and benefits which balance the status. The conforming to human dignity of the corresponding state regulation in these phases in decisive for the continued existence of the displaced persons at their place of admission, their legal status, and their inclusive participation in social and political affairs. The in-depth analysis of the legislation on displaced persons in Germany leads to the following conclusion – to the list of vital requisites for the respect of the human dignity of the expellees and to the critical points, and thereby the problem in the sense of respect for human dignity for displaced persons in Germany was crystallised. Conclusions. In conclusion, it is pointed out that the scientific analysis of human displacement is a complicated phenomenon which, because of its relevance in the world, plays an essential role and requires further research.

The rule of law in the function of human dignity

Human dignity is the universal value of human beings. They have this value because they are potentially mindful beings. This does not mean that every man is mindful, but that every man can be mindful, and therefore dignified. It makes possible for people to understand and accept themselves and others as a purpose. Therefore, the cognitive power of people and the ability to impose on themselves the moral principles of conduct themselves are the basic prerequisite for dignity. People can be their own legislators, which means free beings. An important step in achieving human dignity is human will. Human actions must be in line with the mental knowledge of a priori principles of action, the essence of which is reflected in the ethics of duty, towards oneself and others. Hence, dignity has two very important aspects. The first concerns the attitude towards oneself, and the other relates to others. As a legal requirement, human dignity is the duty of the state and individuals to refrain from all acts that violate human dignity. By virtue of the rule of law, the state fulfils its duty of protection of dignity as a system of laws containing prohibitions of violation of human dignity. However, the fundamental role of the rule of law in the protection of human dignity should not be seen solely in the set of a ban on such conduct. The rule of law, understood as the ideal of the rule of mindful laws, can provide much more through the standardization of social relations that affirm the conditions for survival of the individual as a free and dignified being and create conditions for the free, creative and responsible life of citizens. This implies the affirmation of not only legal-political, but also socio-economic preconditions for the dignified life of people.

HORAS “IN ITINERE” E A HIPOSSUFICIÊNCIA DO TRABALHADOR RURAL NA REFORMA TRABALHISTA

The present study deals with the impacts of the Labor Reform in the hours "in itinere" for the rural worker, with the objective of demonstrating the lack of representativeness of these workers in the legislative process and their hypersufficiency before employers and State, resulting in the analysis of the profiles of the congressmen of the ruralist groups and their party interests and the rural worker, using as an inductive and hypothetical-deductive method and concluding by the discrepancy between the interests of the workers and the political class, making at least a representation that seeks the protection of human dignity and the guiding principle in the design of projects for the category.

THE IMPLEMENTATION OF INDONESIA’S PUBLIC POLICY TO IMMIGRATION SELECTIVE POLICY BASED ON LAW NO. 6 OF 2011


 
 The inherent right of the individual is an affirmation that human beings must be treated properly and civilized and must be respected, as the sounding of the second precept is: "Just and Civilized Humanity". Human rights are manifestations of the third principle, namely: "Indonesian Unity". If all rights are fulfilled, reciprocally the unity and integrity will be created. Rights are also protected and upheld as is the agreement of the fourth precepts that reads: "Democracy Led by Wisdom in Consultation / Representation". Human Rights also recognizes the right of every person for the honor and protection of human dignity and dignity, which is in accordance with the fifth precepts which read: "Social Justice for All Indonesian People" PASTI Values ​​which are the core values ​​of the Ministry of Law and Human Rights which is an acronym of Professional, Accountable, Synergistic, Transparent and Innovative is an expression of the performance of the immigration apparatus in providing human rights based services. If these values ​​are in line with the values ​​contained in Pancasila, the criteria for evaluating human rights-based public services are based on the accessibility and availability of facilities; the availability of alert officers and compliance of officials, employees, and implementers of Service Standards for each service area will be easily achieved. It is fitting that immigration personnel in providing services must be in accordance with the principles of human rights-based services and in harmony with the Pancasila philosophy. This is as an endeavor in fulfilling service needs in accordance with the mandate of the 1945 Constitution, provisions of applicable laws and human rights principles for every citizen and population for services provided by the government in this case Immigration.
 
 

Categorías sospechosas y control difuso en la práctica del juzgador familiar

Introducción: a partir de la Reforma del 10 de junio del 2011, en México se impone la función protectora Constitucional y convencional ex officio para los juzgadores familiares del orden local, como garantía de los derechos humanos al identificar las categorías sospechosas. Estas se entienden como rasgos prohibidos que menoscaban la dignidad humana por medio de un trato diferenciado, y que producen desventaja hacia determinados grupos estereotipados sin que exista una razón que la justifique. Tal desigualdad puede tener su origen en el legislador al determinar el supuesto abstracto (desigualdad formal), o bien en la práctica, al aplicar la norma abstracta al caso concreto (desigualdad sustantiva); ante ello, es propósito de la presente investigación identificar y abatir tales restricciones a partir del principio de igualdad.Metodología: la problemática de la investigación se aborda desde el realismo jurídico, particularizando el estudio a casos específicos con su respectiva explicación; además, se emplea el método comparativo en la confrontación de legislaciones aplicables. Resultados: corresponde identificar y resolver los conflictos donde se presenten categorías sospechosas, para que el Juez de lo familiar local no vulnere el principio de no discriminación.Conclusiones: es preciso establecer una distinción entre igualdades formal y sustancial, el cual constituye un presupuesto que garantizará, por parte del juzgador local, la protección de la dignidad humana y el combate a la desventaja como presupuestos no discriminatorios en la práctica.

Bioethical issues regarding patenting gene editing technologies

CRISPR-Cas9을 사용한 유전자 편집 기술은 유전자 치료를 통한 질병 극복과 유전병 대물림을 없앨 수 있는 가능성을 열어준다. 이 혁신적 기술에 대한 특허 출원이 빠른 속도로 증가하고 있다. 특허요건을 충족하는 발명이라면 특허를 허여해야 하지만, 아직 해결되지 않은 과학적 불확실성으로 인한 안정성의 문제와 미래 세대에 대한 자율성 침해, 우생학적 조작 가능성 등 잠재된 윤리적 문제는그 발명에 특허권을 부여해도 되는지 의문을 제기한다. 기술을 독점배타적으로 소유할 수 있는 권리를 허락한다는 것은 그 기술에 대한 사회적 및 경제적 통제 력을 주는 것이기도 하다. 또한 기술을 통해 윤리적인 문제가 사회 속으로 확산 되는 것을 방조하는 것은 공익을 추구하는 특허제도의 본래 목적에도 어긋난다. 이에 본 논문은 먼저 자연 상태의 CRISPR와 Cas9으로부터 만들어진 CRISPR-Cas9이 과연 특허법으로 보호해야 하는 대상인가 검토하는 것에서부터 출발한다. 그리고 “위험한 지식” CRISPR-Cas9과 특허의 관계, 사전예방원칙과 특허의 관계, 특허 대상 확대에도 불구하고 단일 특허법을 적용하는 문제, 연구의 탈순수성과 복잡화에 따른 윤리적·법적 문제에 관한 논의를 통해 유전자 편집 기술 관련 특허심사에서의 윤리적 판단에 요구되는 전문성이 특별하다는 결론에 이르렀다. 한국 특허시스템이 CRISPR-Cas9을 사용한 인간유전자 편집에 관한 발명을 심사하는 데 있어서 인간 존엄성의 수호와 책임 있는 윤리적 판단을 하기 위해서는 현행 기술 위주의 1인 심사 방식을 지양하고, 해당 기술에 대한 윤리적 판단을 함께 해줄 윤리심사위원회를 설치하거나 윤리담당 심사관이 포함된 다인심사체제를 도입할 것을 필자는 제안한다.The gene editing technology using CRISPR-Cas9 opens up the possibility of overcoming disease through gene therapy and eliminating genetic inheritance. Patent applications for the innovative technology are increasing rapidly. Patents must be granted for inventions that meet the patentability requirements, but the potential ethical issues such as stability caused by unresolved scientific uncertainty, violation of the autonomy of future generations, and eugenic manipulation raise questions of granting patents to the invention. Allowing the exclusive right on the technology is also giving a social and economic control over the technology. Aiding the spread of ethical issues into society through the use of technology is against to the original purpose of the patent system that pursues the public interest. Accordingly, this paper begins first by examining whether the CRISPR-Cas9 made from the natural CRISPR and the natural Cas9 is patent-eligible subject matter or not. And more specifically, building on discussions about the relationship between the ‘dangerous knowledge’ CRISPR-Cas9 and the patent, the relationship between the precautionary principle and the patent, the irrationality of applying only one patent law even as the number of patent subject matter increases, and the ethical and legal issues that arise as research becomes more complex and interconnected with business and other issues, this paper conclude that the expertise required in ethical judgment regarding patenting gene editing technologies is important and particular. In examining inventions on human genetic editing using CRISPR-Cas9, the Korean patent system needs to be changed for the protection of human dignity and responsible ethical judgment. As part of this, I propose to set up an ethical review committee that will make ethical judgments about the technology or a multiple examiner system that includes ethics judges, rather than the current technology-based one-person screening method.

Godność człowieka w otoczeniu administracji publicznej — wybrane zagadnienia

HUMAN DIGNITY IN ENVIRONMENT OF PUBLIC ADMINISTRATION — SELECTED ISSUESEnvironment of public administration is built by many subjective and objective elements among which the most important is human being and communities created by him/her. They are the reason of public administration existence which is establish in order to fulfill social needs resulting from the people’s coexistence in communities. The concept of human dignity, consider as normative rule or value which always should be taken into consideration by public administration, is insep­arably linked with the concept of human being treated as an individual or as apart of community. Public administration cannot act where human dignity is violated and is obliged to act when human dignity is in danger. Protection of human dignity should always be fundamental feature of public administration activities.

Standardy służby publicznej. Uwagi ogólne

For every formulation of an idea of public service – in broad and narrow sense – important is not the power itself, but to serve others (ancillary attitude). There is no doubt today that the basic standards of public service should be sought in the Constitution of the Republic of Poland, normative acts of the statutory rank, in the axiological designations of public order, etc. Among the basic standards of such understood service should be indicated, among others: proper care in the protection of human dignity, prudent concern for the common good and the good of the Republic, legal security and legal certainty, the authority of the public service as a determinant of the authority of the State, ethics and morality in the service, righteousness and sense of justice, neutrality, apoliticality, impartiality, honesty, reliability, prudence as well as appropriate implementation of the idea of the rule of law, etc. The basic and important problem today is building a public service ethos with which a specific moral imperative is bound, associated with professional dignity, honor of service, sense of law and public order.