Recent Law Reform Research Articles

Giving Meaning to Consent at the International Criminal Court and Beyond: A (Qualified) Defence of Consent

ABSTRACT This article examines the concept of consent in the context of rape and sexual violence within the framework of the International Criminal Court (ICC). Lack of consent is not required to be proven in relation to charges of rape in the Rome Statute, an aspect praised by feminist legal scholar Catharine MacKinnon. A significant and contested feature of MacKinnon’s theorisation of rape is her argument that such a standard should also serve as a model for domestic laws. However, it is not clear that the ICC’s current framework regarding consent and the means to address sexual violence is as robust as MacKinnon suggests. Importantly, our analysis of the international experience takes place against a backdrop where in many domestic jurisdictions consent remains firmly entrenched in law reform efforts to address the ubiquity of sexual violence. Drawing primarily on recent law reform examples from Australia, where the trend has been toward affirmative models of consent, we consider how consent is positioned within them. We argue that consent still has a place in measures in both domestic and international jurisdictions aimed at addressing the structural inequalities and power dynamics underpinning sexual violence, MacKinnon’s privileging of the measures in the international jurisdiction notwithstanding.

Slovakia's departure from strong labor protection of employees as a consequence of the pandemic and the transposition of european directives

This scientific paper delves into the notable shift in Slovak labor law, which has departed from its historically strong emphasis on safeguarding the rights of employees, traditionally seen as the weaker party in labor relations. Until recently, this emphasis served as a substantial barrier against the globalizing and standardizing influences of employers. The paper identifies two key factors driving recent legislative "reforms" in Slovakia's labor regulation. These changes are rooted in the transposition of European labor law directives while also embracing a more liberal political perspective regarding the nature of labor relations. This shift involves moving away from rigid employee protection and adopting the concept of "increased flexibility" in employee work as a remedy for addressing the post-Covid-19 economic challenges. The previous emphasis on employee or employee representative involvement in defining working conditions, wages, and important employer decisions regarding work organization has shifted. This shift allows employers to act unilaterally, contingent on fulfilling new information obligations towards employees. However, the recent labor law reforms run counter to this historical legal tradition. Taking into account the wage levels in the Slovak Republic compared to the majority of other European Union member states, these reforms establish an unsettling level of labor law protection pro futuro of Slovak employees.

The reform of family law and Family courts in the Republic of Cyprus

La riforma del diritto di famiglia e delle Family courts nella Repubblica di Cipro
 ABSTRACT: This essay addresses the 2023 amendments to Article 111 of the 1960 Constitution of the Republic of Cyprus, as well as family law reforms in the light of the religious or belief minority rights protection, promotion, and implementation. In doing so, the article relies on the findings of the Atlas of Religious or Belief minority Rights research project. The aim is to highlight how the legal system of Cyprus is slowly detaching itself from the millet logic inherited from the Ottoman past and it is further aligning with European and international standards on the protection of minority rights in different policy areas, including family law and marriage. However, religious affiliation and religious legal systems still bear significance on some issues pertaining to family law, marriage, and dissolution of marriage.
 SUMMARY: 1. Introduction - 2. Religious (and ethnic) affiliation in the “intractable” Constitution of the Republic of Cyprus - 3. Family courts: Article 111 of the Constitution and the Orthodox Church - 4. The Family Courts of the Religious Groups - 5. The Eighteenth Constitutional Amendment and the recent family law reforms - 6. Concluding remarks.

My Body Is My Temple? Comparing Sexual Crimes and Property Crimes in a Human Rights Tradition

AbstractDespite recent criminal law reforms to define rape through the lack of consent, practical questions remain about how to regulate different kinds of violations of sexual autonomy. Many common law scholars have found it eye-opening how much more extensive and easily accepted the protection of property rights is compared to the protection of sexual autonomy. But when the rationale of criminalization resides in human rights, such a comparison is alien; protecting human dignity appears separate from protecting instrumental property rights. Considering rape a subversion of our ownership rights to our bodies (the property model of rape) is rightly regarded as problematic. This article argues that comparing sexual crimes and property crimes is not predicated on the property model but rather on autonomy itself. Comparisons based on autonomy could help resolve practical dilemmas of consent-based rape laws while respecting human dignity and thus be fruitful research pursuits within a human rights tradition.

Recent Abortion Law Reforms in India: Redefining Rape

Recent Abortion Law Reforms in India: Redefining Rape

Theoretical framework for an analysis of the recent criminal law reforms in Poland

In the article, I analyse certain aspects of recent criminal law reforms in Poland from the perspective of criminal punishment being a complex legal and social institution of a processual nature. It is intended to enable a critical examination of the punitiveness of the penal system, which can hardly be explained by its effectiveness or even by penal populism. In the study I use the following methods: historical legal, comparative legal, formal logical, dialectical, analytical, synthetical and inductive/deductive. The synthesis and triangulation of the methods follow the principles of culturally integrated social and legal studies (Królikowska, Utrat-Milecki 2010).

Making land available. Cultural legal comparison of the German Building Land Mobilisation Act and the partial revision of the Swiss Spatial Planning Act

Planning practice is confronted with seemingly contradictory challenges, such as the qualitative and quantitative provision of housing paired with reducing land consumption. To address this apparent dilemma, legislators are increasingly relying on densification. However, a fundamental prerequisite (and often a significant challenge) for this is the availability of the land required. Recent planning law reforms in Germany and Switzerland aim to increase the effectiveness and speed at which land is made available for inner development, thus meeting the seemingly conflicting planning policy goals. This paper compares recent legislative efforts in Germany and Switzerland using the comparative law method. The German Building Land Mobilization Act includes amendments to the Building Code (Baugesetzbuch) and the Building Use Ordinance (Baunutzungsverordnung), intended to enable faster activation of building land and the creation of more affordable housing. To this end, the amendment expands existing instruments for the activation of building land and introduces simplifications to the planning law. In Switzerland, the Spatial Planning Act has been partially revised to achieve inner urban development through precise regulations on the expansion of building zones and instruments to ensure the implementation of zoning plans.

Religious schools: a transparent right to discriminate?

ABSTRACT Discrimination laws have long contained exceptions for otherwise unlawful discriminatory conduct. An increasing site of tension has been the exceptions granted to religious schools. These schools maintain that they should be able to adopt an approach to education which reflects the faith-based ethos of the school community. However, there are concerns that some faith-based approaches can cause harm to, and exclude, LGBTIQ+ staff and students. An approach that has been under active consideration in Australia is to allow some discrimination by religious schools so long as they give public notice of their policy of doing so. This ‘notice provision’ exists in several state and territory discrimination laws, and has been considered in recent law reform inquiries across the country. In this paper, we challenge the underlying idea that prior notice justifies discriminatory conduct. We argue that such an approach sits uncomfortably with the conceptual and theoretical underpinnings of discrimination law, and that transparency is an insufficient reason to permit discrimination. Notice provisions appear to evade, rather than answer, the question of how to balance competing human rights to religious freedom and equality. As such, we argue that discrimination by religious schools cannot be justified on the basis of notice.

INDIVIDUAL LABOR DISPOSITIONE: COMPARATIVE RESEARCH BETWEEN LABOUR LAW OF VIETNAM AND SINGAPORE

The document deals with a comparison between labor law in Vietnam and labor law in Singapore. Here also the results are discussed distinguishing between the two state laws through the derived method of investigation. The positive impact of both laws on employment in the workplace is provided. This issue argues that despite being a "developing country" with a middle income rate, Vietnam has more "job provisions" and cares for its employees more effectively. Recent labor law reforms are probably responsible for this. Vietnam has signed a series of "free contract agreements" that have forced the government to reform its labor regulations. In Singapore, on the other hand, the role of "EA" has changed dramatically over time. The researchers used a derived qualitative method to obtain the data. This allows researchers to quickly access large amounts of information. The researchers used various journals to conduct derived research. In addition, the assets of various government websites were assessed. By using peer-reviewed journals, researchers can maintain article integrity in these circumstances. Furthermore, dispositione resolution in both Vietnam and Singapore effectively empowers their employees systematically and strategically to meet international standards of late.

Prescribed burning on private land: reflections on recent law reform in Australia and California

Background Prescribed fire is a critical tool for building resilience to changing fire regimes. Policymakers can accelerate the development of effective, adaptation-oriented fire governance by learning from other jurisdictions. Aims We analyse reforms to prescribed fire governance to highlight improvements for fire hazard reduction and resilience. Methods We searched legislative registers in New South Wales (NSW), Australia and California, United States, identifying Bills tabled between 2011 and 2022 that mention the terms ‘prescribed (fire or burn)’ or ‘controlled (fire or burn)’. We reviewed the eight relevant Bills from NSW and 67 Bills from California to identify and thematically code reforms relevant to private landowners. Key results We found three primary themes across relevant legislative proposals: (1) reforms to simplify permitting and regulatory approval processes (primarily in Australia); (2) efforts to mitigate the risk of legal liability for escaped burns (primarily in California); and (3) recent recognition of and support for cultural burns (primarily in California). Conclusions Expanding prescribed burning on private land remains an ongoing challenge in NSW and California but recent reforms indicate greater attention, and jurisdiction-specific approaches, to this challenge. Implications Despite differing governance arrangements, California and NSW offer important insights for improving climate-adaptive governance of prescribed fire.

Knowledge, Moral Attitude, and Practice of Nursing Students Toward Abortion.

In 2021, Thailand decriminalized abortions to allow for legal abortions on request up to 12 weeks' gestation and conditionally up to 20 weeks' gestation, or in the case of sexual assault, maternal mental or physical harm, or fetal abnormality. We intend to say that healthcare practitioners' positive attitudes toward abortion will destigmatize abortion for both themselves and their patients. We explored the knowledge, attitudes, and intended practices of nursing students toward safe abortion practices in light of the recent law reform. This was a cross-sectional study using a self-administered questionnaire. The questionnaire consisted of 4 parts: a demographic information questionnaire; and measures to assess their knowledge, moral attitudes, and intended practice regarding safe abortion care. Questionnaires were sent to 206 nursing students who had completed the Midwifery and Maternal-Newborn Nursing rotation in Bangkok, Thailand. The survey response rate was 90.8%. Mean (standard deviation) knowledge score was 6.72 (1.86) out of 10. Buddhist students were more likely to have a positive attitude toward abortions. Most students intended to practice safe abortions in pregnancies that affect maternal physical or mental health, or in pregnancies that resulted from unlawful sexual contact. Students were more ambivalent toward abortion practices for socioeconomic reasons. Better knowledge of abortion legislation was associated with a more positive attitude toward abortions and safe abortion practice intention. Approximately 1 year after the abortion law reform in Thailand, nursing students had incomplete knowledge of the amendment. Most students were inclined to provide abortion care services for certain conditions.

Hong Kong’s sex discrimination ordinance at twenty-five: Achievements, legislative change and continuing challenges

This article critiques Hong Kong’s Sex Discrimination Ordinance (SDO) as it turns 25, considering its achievements and impact, whilst highlighting continuing challenges for its operation. Although the Equal Opportunities Commission (EOC), the statutory body responsible for investigating and conciliating discrimination complaints, has promoted the ordinance and disseminated evidence-based research on sex discrimination, sexual harassment and pregnancy discrimination, the limited number of litigated cases has inhibited the educative impact of how discriminatory practices are perpetrated across a range of settings including in employment and the provision of goods and services. Politically contentious exemptions persist, and recent law reform does not go far enough in addressing the limitations of the SDO. Drawing on case law and qualitative research interviews with members of the EOC, scholars and non-governmental organisations, this paper questions whether Hong Kong’s SDO is coming of age. The article concludes that despite it 25-year history, there is much works that remains to be done to enhance societal understandings of gender equality.

Law Reform Processes and Criminalising Coercive Control

ABSTRACT In 2005, Reg Graycar and Jenny Morgan published ‘Law Reform: What’s in It for Women?’ in which they raised a number of issues and tensions faced in feminist engagements with law reform processes. Relying on Graycar and Morgan’s work I explore three recent law reform processes focused on whether coercive control should be criminalised: the NSW Joint Select Committee on Coercive Control, the Queensland Women’s Safety and Justice Taskforce, and the South Australian exposure Bill. All answered this question in the affirmative. However, there were distinct differences in terms of their respective terms of reference, processes undertaken, participation of diverse and marginalised groups, consideration of implementation issues, and engagement with existing research. This article explores the strengths and weaknesses of these processes. The importance of Graycar and Morgan’s work is that it insists that we examine the processes of law reform, and not just the outcomes. While outcomes are obviously critical, the processes necessarily shape what those outcomes might be. The diversity of views around criminalisation of coercive control meant that attention to these processes was critical, particularly for those who are most likely to experience violence and state interventions in their lives.

Recent Law Reforms in EU Sustainable Finance: Regulating Sustainability Risk and Sustainable Investments

Recent Law Reforms in EU Sustainable Finance: Regulating Sustainability Risk and Sustainable Investments

What is labour exploitation? The Belgian and British experience

The legal understanding of labour exploitation is a grey area. This paper will first outline some of the obstacles in international and regional law and jurisprudence, as to the understanding of exploitation in the context of human trafficking, slavery, servitude and forced labour. Secondly, taking into account recent law reforms in both Belgium and England & Wales, this paper will outline some of the key features that have emerged from the judicial handling of labour exploitation in criminal cases. Drawing on the findings from empirical analysis of criminal cases between 2010-2017 as part of doctoral research, this paper will first of all outline similarities, differences and challenges to ensuring a clear understanding of the meaning of labour exploitation in the context of human trafficking. The findings will provide insight into how to strengthen a harmonised and robust response to human trafficking.

Restrictions on Property Rights: Benevolent Intent, Disruptive Outcome - The Conundrum of South Korea’s Chonse(전세) Reform

This article discusses South Korea’s recent property law reform (affecting “Chonse”) and its unintended impact on the housing market. Chonse is a unique and prevailing residential lease found only in South Korea. Under a Chonse contract, a lessee makes a one-time deposit with the lessor, the amount of which equates to a substantial portion of the property value; in exchange, the lessee is permitted to lease the property free of rent and reclaim the deposit on the expiration of the lease. This unique leasehold system has existed for several economic reasons. Recent developments render the future prospect of Chonse uncertain; housing costs have been rapidly increasing in South Korea, particularly in the City of Seoul, generating financial pressure on lessees. In response to this price hike, the South Korean government has undertaken controversial law reform that imposes a cap on annual rent increase, including Chonse deposit amount, and also mandates one-time renewal of residential lease for additional two years, in efforts to assist lessees and stabilize the housing market. This law reform, however, has caused unintended disruption in the housing market and a shortage of residential properties available for Chonse. The author has previously introduced Chonse in a co-authored article and examined its historical origin, legal elements, and future prospects. This article, building on the author’s previous work, analyzes the socioeconomic impact of Korea’s recent Chonse reform. The article adopts the “General Theory of Law and Development” and explains why the law reform has resulted in unintended outcomes. The article cautions against the (well-intended) attempt to restrict property rights resulting in disruptions in the housing market and increasing costs for Chonse lessees.

Are we there yet? A review of proposed Aboriginal cultural heritage laws in New South Wales, Australia

AbstractThis article examines the extent to which a recent law reform initiative in New South Wales (NSW), Australia—the draft Aboriginal Cultural Heritage Bill 2018 (NSW)—advances the general principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The examination reveals some improvements on the current legal framework and some concerning proposals that distance the NSW government from the UNDRIP principles. Key concerns include a proposed transfer of administrative responsibility to Aboriginal bodies with no corresponding guarantee of funding; the continued vesting of key decision-making powers in government; inept provisions for the protection of secret knowledge; and lower penalties for harming cultural heritage than for related offences in existing environmental and planning legislation. Given the bill’s weaknesses, the article explores pragmatic alternatives to better advance the UNDRIP principles.

Corporate Mobility: Belgium as a Gate to the European Union

As a result of the recent corporate law reform, Belgium switched from the real seat theory to the statutory seat theory for determining a company’s nationality. This creates opportunities for corporate mobility. In particular, the new Belgian Code of Companies and Associations offers the possibility for companies migrating from a non-EU country to use Belgium as an “entry point” to the European Union while maintaining continuity of legal personality and therefore without necessitating a deemed liquidation for tax purposes. The Belgian ruling authorities recently approved such transactions.

A GLIMPSE INTO THE PRESENT AND FUTURE OF LABOUR LAW AND INDUSTRIAL RELATIONS IN CENTRAL AND EASTERN EUROPE

This paper seeks to take a look at recent labour law reforms in a number of selected CEE countries, and to examine the manner, in which the equation of standard employment relationship and the dynamics of collective bargaining processes have changed. The 1st section discusses the policy goals as well as drivers of legal changes, which have aff ected and guided recent labour law reforms in the sub-region. External infl uences over shaping of the new policy visions and recovery policies are also examined here. The 2nd section examines recent trends in regulating standard and non-standard employment relationship, as well as the collective agreements as determinants of working conditions and terms of employment. It also analyses the new approaches in the implementation of the guiding principles of collective bargaining, including the autonomy of the parties, and the principle of favourability. Furthermore, the 3rd section seeks to explore what the future looks like by traveling the paths opened by the works of the ILO Global Commission on the Future of Work, with a special focus on the Universal Labour Guarantee. Finally, a number of conclusions are drawn on the basis of the analysed data and policies.

Preventive Penalisation in China: Background, Adverse Impacts and Judicial Restriction

Recent criminal law reforms in China show a noticeable preventive character by criminalizing preparatory activities, lowering conviction threshold and imposing crime prevention obligation on legal persons, especially internet service providers. Timely preventive penalization is necessary because it responds to requirement of modern society to prevent invisible yet destructive risks in almost every corner of industrial activities. Meanwhile, preventive penalization puts criminal law and citizens in danger too, because punishing formally unlawful conducts that cause no harm to society leads to not only injustice in criminal justice but also ineffective allocation of precious resources. Chinese legislation gives enough space and choices to judiciary to prevent adverse impact of preventive penalization in practice. Unfortunately, the absence of a common recognition of its obligation and collective action shows that there is still a long way to go before establishment of a check and balance mechanism between seemingly unstoppable preventive penalization and criminal justice.