Separate Statutes Research Articles

Legal Pluralism in South Africa: The Implications of Co-Existing Customary and Civil Marriages

In South Africa marriage was a key site of colonial legal pluralism. Family formation and marriage were central to upholding boundaries between colonial and local normative orders. Under the umbrella of a single set of fundamental constitutional rights, post-apartheid law nevertheless retains separate statutes, precedents and legal rules for different cultural and religious marriages. This can lead to legal gaps and uncertainty when people enter into simultaneous or coexisting marriages, especially when the same couple concludes a customary marriage together with a civil marriage. This article examines the current configuration and implications of legal pluralism in South Africa by analsysing the interaction between coexisting customary and civil marriages between the same spouses. It identifies three themes in the relationship between these marriages: a hierarchy which continues to privilege civil law over other legal and normative systems; second, failure on the part of the legislature to clarify confusing aspects of the interaction between these forms of marriage and, finally, gaps which neither applicable legal system addresses satisfactorily. It also illustrates the political failure of the legislature, almost thirty years after the advent of democracy, decisively to address the socio-economic problems created by pluralism and the inadequate regulation of customary marriages.

MODERN MEANS OF PROOF IN ADMINISTRATIVE CASES:A COMPARATIVE STUDY (FRANCE - EGYPT – JORDAN)

This research states that contemporary technology created numerous tools that different governments utilize in their everyday interactions with workers and citizens, making these tools one of the most relevant evidence before the court. Jordanian and Egyptian legislation followed the French legislator, who introduced these methods in the French civil law and later in a separate statute. Egyptian and Jordanian legislators created the electronic signature and electronic transactions laws, respectively. The administrative judge recently accepted evidence notwithstanding the lack of an independent legislation controlling it and the administration's legal existence. When technological restrictions are followed, the law gives electronic writing and signature ultimate power. Email has authority. The Jordanian, Egyptian, and French lawmakers proclaimed their embrace of contemporary communication in administrative operations after the research. They equalized those means in evidence before the administrative judge. After technological and legal constraints, the Jordanian legislature has granted contemporary proof unlimited power.The need to train administrative officers in contemporary technologies and how to handle electronic evidence before the administrative court without relying on electronic signature certificate firms.
 When legal restrictions are followed and responsible authorities are identified, electronic writing, signature, and email increase trust and security in administrative processes. Therefore, we suggest that Jordanian and Egyptian lawmakers promptly pass a specific administrative court evidence statute.

Geneza ustawy o postępowaniu w sprawach nieletnich z 26 października 1982 r.

During the interwar years and after the Second World War, law-making in Poland was very casuistic, which was due to the difficult socio-economic situation of the ruined country. The provisions of the Polish Criminal Code applicable at the time also regulated individual provisions on juvenile perpetrators. The objective of this paper is to present the multiannual and complicated process of creation of separate regulations on procedure in juvenile cases. At the same time, the legislative process of the said act as well as the innovative legal solutions thereof will be presented. It should be emphasised that the problem of a lack of both family courts and separate legal norms applicable in juvenile cases was present not only in Poland, as many other more developed countries were facing it too. The first draft act was proposed at the very beginning of the 20th century, whereas the following years brought about more projects on juvenile cases procedure. Although it has to be recognised that the issue of said regulations was raised quite often, ultimately no project was adopted. A critical look needs to be taken on the fact that juvenile perpetrators committing prohibited acts or acts of a demoralising character were punished pursuant to the provisions of and based on the principles laid out in criminal statutes and other individual statutes, provisions of which were occasionally applied in the said cases. Until 1982, the applied provisions were those of the Criminal Code and the Code of Criminal Procedure from the 1920s and 1930s. Jurists of that time incessantly emphasised that the legal norms regarding the juvenile should be of a preventive and educational nature and that the separate provisions laid out in the repealed Criminal Code and Code of Criminal Procedure did not comply with these requirements. It is worth noting that juvenile cases should be subjected to special protection and appropriately analysed in case of application of outdated provisions. In Poland, the need for the said legislation lasted for too long, as it was not until 1982 that the first separate statute on juvenile cases procedure was adopted.

2022 징계법정주의 관점에서 바라본 공무원의 임용 전 비위행위와 징계

Regarding the disciplinary action of public officials prior to appointment, the majority of the academic community today views that in cases where the misconduct before the appointment is so serious that serving as a public servant is not allowed, the act of appointment itself can be either canceled or withdrawn but cannot be the cause for disciplinary action, in principle. In some cases, however, such as when a particular behavior before the appointment has resulted in the subsequent injury to the dignity of public officials, disciplinary action can be taken on the grounds that it violates the duties of public officials after the appointment (or for failing to maintain the dignity as a public official). However, these opinions of the majority appear to follow the Supreme Court’s judgment uncritically. As a result, it led to harmful consequences by excessively linking the misconduct before the appointment with the act of appointment in the actual disciplinary process. However, discipline, unlike punishment, is based on public official relations. Therefore, to use an act that does not occur in public official relations as a reason for discipline is contrary to the basic nature of the discipline. Accordingly, the logic of such disciplinary action on exceptional grounds referred to in Supreme Court precedent would be incorrect. In the discipline of public officials and teachers, etc., legal principles should be applied more rigorously in addition to the principle of statutory discipline which states the requirements, procedures, level of disciplinary measures, standards, and procedures for dissatisfaction, etc., must be explicitly stipulated by law. However, the Supreme Court precedent or the majority opinions from academia are regarded as the result of analogical or extended interpretation in disciplinary action, and such results are a violation of the principle of statutory discipline, which cannot be easily agreed upon. However, when such rigorous interpretation applies, problems could arise such as how to resolve misconduct related to the appointment. As its interpretation would be difficult, a separate statute should be established so that if any misconduct is found before or after the appointment, the appointment can be canceled, or other measures can be taken. Furthermore, clear provisions on the statute of the prescription are necessary to ensure legal stability. This requires a systematic examination of the current statute and provisions on punishment.

2022 징계법정주의 관점에서 바라본 공무원의 임용 전 비위행위와 징계

Regarding the disciplinary action of public officials prior to appointment, the majority of the academic community today views that in cases where the misconduct before the appointment is so serious that serving as a public servant is not allowed, the act of appointment itself can be either canceled or withdrawn but cannot be the cause for disciplinary action, in principle. In some cases, however, such as when a particular behavior before the appointment has resulted in the subsequent injury to the dignity of public officials, disciplinary action can be taken on the grounds that it violates the duties of public officials after the appointment (or for failing to maintain the dignity as a public official). However, these opinions of the majority appear to follow the Supreme Court’s judgment uncritically. As a result, it led to harmful consequences by excessively linking the misconduct before the appointment with the act of appointment in the actual disciplinary process. However, discipline, unlike punishment, is based on public official relations. Therefore, to use an act that does not occur in public official relations as a reason for discipline is contrary to the basic nature of the discipline. Accordingly, the logic of such disciplinary action on exceptional grounds referred to in Supreme Court precedent would be incorrect. In the discipline of public officials and teachers, etc., legal principles should be applied more rigorously in addition to the principle of statutory discipline which states the requirements, procedures, level of disciplinary measures, standards, and procedures for dissatisfaction, etc., must be explicitly stipulated by law. However, the Supreme Court precedent or the majority opinions from academia are regarded as the result of analogical or extended interpretation in disciplinary action, and such results are a violation of the principle of statutory discipline, which cannot be easily agreed upon. However, when such rigorous interpretation applies, problems could arise such as how to resolve misconduct related to the appointment. As its interpretation would be difficult, a separate statute should be established so that if any misconduct is found before or after the appointment, the appointment can be canceled, or other measures can be taken. Furthermore, clear provisions on the statute of the prescription are necessary to ensure legal stability. This requires a systematic examination of the current statute and provisions on punishment.

Who is a Journalist? A Critical Analysis of Australian Statutory Definitions

This article provides the first comprehensive study of statutory definitions of ‘journalist’ and ‘journalism' in Australian law and proposes a preferred definition of journalist by reference to statutory aims, bedrock legal principles and broader scholarship. It begins with a review of existing literature on the meaning of ‘journalist' in the modern media landscape, before turning to Australian law. A qualitative survey of legislation identified 11 textually different definitions of the term ‘journalist’ across 18 separate statutes, and a single definition of ‘journalism’. Examination of the statutory contexts, purposes and framing of these definitions reveals they are comprised, broadly, of six ‘approaches’. These approaches are critically analysed against a novel five-part thematic framework, with particular attention given to whether journalists should be defined by reference to ethical codes and responsibilities. The article concludes by identifying a preferred definition of journalist capable of informing law reform across a wide-variety of areas of law, including protections for press freedom, journalistic access to information, shield laws and whistleblower protections.

교육공무직의 근로조건 결정상 쟁점과 노동법적 개선방안

Educational officials are employees in principle and they are protected according to the Labor Relations Act. At actual schools, however the issues and controversies over the protection and treatment of the educational officials have been continuing for a long time. Such issues and controversies have to be considered as they cause huge confusions in the labor-management relations and provision of high-quality educational service at school.BR While there have been efforts to amend the Act or relevant statutes since the 19th National Assembly, amendments could not be made due to the oppositions from the parties of labor relations. Currently employment and working conditions are regulated in accordance with the municipal ordinance, collective bargaining, rules of employment, and labor contract.BR The treatment and protection of the educational officials have significant meaning in improving the quality of the educational services including educational welfare. However the present ordinance-based discipline system causes difference in the scope and main working conditions depending on duties and regions. Such difference results in exhausting and repeated conflicts.BR Still, offices of education and solidarity conference of non-regular school employees are carrying out collective bargaining to regulate the standardized salary and allowances. The working conditions are also gradually getting standardized by reducing the gaps between offices of education. Such issue is also spotlighted because it may become the basis for establishing the separate statutes related to the educational officials.BR There also should be further discussions on various measures for closing the gaps in the working conditions of the educational officials.

Judicial Approach Amidst Growing Live-in Relationship

Purpose: The purpose of this article is to comprehend the Judiciary's response and apprehend the pace of change in the social dynamics of the society about live-in relations. This article also comprehends the inter-linkage of the concept of live-in relationships vis-à-vis other laws, which require more clarity. Design/Methodology: In this study, the research brings down the concept of a live-in relationship by analyzing various judgments down the link from pre-independence to post-independence through the Protection of Women from Domestic Violence Act, 2005 (PWDWA). This study analyzed the data of the Supreme Court and High Courts down the line from 2010 to 2021 and analyzed the high courts that have the maximum number of cases. The approach is to identify how Judiciary interprets the live-in relationship in different facts under the light of various laws. Practical Implication: This study helps to identify the way forward in the absence of the legislative framework on live-in relationships through the interpretation by the Hon’ble Supreme Court and other High Courts. Originalities/Value: This study is predominantly based upon the question placed before the larger bench by Madras High Court as to whether the woman is entitled to get a pension in a live-in relationship. The resultant of this work is based upon the opinion of the existing judgment that brings support to reach out to the conclusion. Outcome/Finding: The dimension of the social changes and changing the mindset of youth is an accepted fact to give legal recognition to live-in relationships. The Court has paved the way for a live-in relationship in property, maintenance, and domestic violence. This is high time for the legislature to code the separate statute for the live-in relationship so that the women from this relationship have not exploited due to the non-presence of the statute.

The EU Small Claims Procedures in the Netherlands - Some Good and Some Bad News

he EU Small Claims Procedure (henceforth: ESCP) has been implemented in the Netherlands by a separate statute, that entered into force on 10 June 2009. This Dutch Small Claims Act (henceforth: SCA) has been amended in 2017 as a result of the changes in the ESCP of 2017. About the initial implementation of the SCA has been reported in 2013. This contribution will focus on the situation since the amendments of 2017, obviously taking into account earlier developments that still determine the workings of the ESCP. First, the framework of civil litigation in the Netherlands will be described. Second, the implementation of the ESCP will be discussed and explained. The main part will be devoted to the workings of the ESCP in practice, including an analysis of the way the ESCP is used (and maybe abused). The conclusion will be that in less than 3 % of the cases the ESCP is used in conformity with its objectives, but that legal practice profits from its aspects that help to avoid the workings of other European instruments, especially the EU Service Regulation.

FVRA Cannot Be Used to Appoint an Acting Attorney General

The President’s recent appointment of Matthew Whitaker as Acting Attorney General is unprecedented and calls into question several legal issues. Though most are based on questions of constitutionality, there is a strong and novel argument that the statute used by the President to make the appointment, FVRA, may not be used in such a way. Instead, a separate statute, 28 U.S.C. § 508, compels the Deputy Attorney General to take charge of the Justice Department. By presenting never-before-seen legislative histories to support that conclusion, it also becomes clear that FVRA cannot be used to make appointments to many other high-level offices covered by a specific statute. These conclusions are further affirmed by well-settled canons of statutory construction. Put simply, this article shows not only why the appointment of an Acting Attorney General is unlawful, but why any use of FVRA to displace a specific succession statute is similarly unlawful. This article is set to be published in either November or December of 2019 and its final version will be uploaded to this web address. Following this article, a large appendix of photographs of original and contemporaneous documents related to FVRA is provided. These photos were taken at archives across several different states, and offer a more full legislative history of FVRA than is available anywhere else.

Solving the Congressional Review Act’s Conundrum

Congress routinely enacts statutes mandating that federal agencies adopt specific regulations. For example, when Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, it required the Securities and Exchange Commission (SEC) to adopt a regulation compelling energy companies to disclose payments they make to governmental entities. Although this disclosure regulation is specifically required by the Dodd-Frank Act, it is also a regulation subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA). In 2017, Congress passed a joint resolution disapproving the SEC’s disclosure rule under the process authorized in the CRA. That resolution nullified the SEC’s rule, but it did not amend the Dodd-Frank Act. It did, though, make relevant a provision in the CRA that prohibits an agency from adopting any regulation that is “substantially the same” as one that Congress has disapproved. As a result, the SEC still must issue a disclosure regulation, but it cannot issue one that is substantially the same as the old one. Although normally this might not pose a major problem to an agency, the Dodd-Frank Act not only requires a disclosure regulation, it also provides considerable detail about what must be included in that regulation. The SEC faces what appears to be a conundrum. On the one hand, it must adopt a regulation that comports with the detailed provisions of the Dodd-Frank Act. But on the other hand, it is prohibited under the CRA from adopting a regulation that is “substantially the same” as the old regulation. What is the agency to do? Earlier this year, the SEC announced a proposal for a new disclosure regulation that differs in several ways from the old one—but the proposed regulation would also appear in some respects to violate the Dodd-Frank Act’s requirements for how the disclosure rule should be designed. In this paper—originally submitted as a public comment on the SEC’s proposed rule—I explain that the SEC need not violate the Dodd-Frank Act to comply with the CRA. The CRA conundrum can be readily solved. The CRA’s choice of the imprecise word “substantially” invites the SEC to reconcile both statutes. The agency can do so by ensuring that those features of a new regulation that remain in the SEC’s discretion are not substantially the same as in the old rule. After all, a statute such as the CRA can only impose an obligation on an agency over matters over which it has a choice. The SEC just needs to make sure that any re-issued rule is no longer substantially the same in terms of portions of the rule over which the agency can exercise its discretion. Even with detailed statutory provisions, such as the one in the Dodd-Frank Act, an agency nevertheless will still have some discretion available to it. It can exercise that discretion in a substantially different way even if by making available opportunities for waivers or by extending deadlines for compliance. The disapproval of a rule under the CRA simply does not relieve an agency from its obligation to produce a regulation that complies with other statutory obligations.

ОСОБЛИВОСТІ КРИМІНАЛЬНОГО ПОКАРАННЯ ЩОДО ФІЗИЧНИХ ОСІБ В АНГЛІЇ

The article analyzes the features of criminal punishment of individuals in English law. It states that English legislation does not define the concept of criminal punishment. Thus, this concept recognized in many judicial decisions and teachings of publicists. The issue of the purpose of criminal punishment elaborates at the legislative level in the Criminal Justice Act of 2003, which provides a list of them. It mentions that there is no criminal law code in England, so penalties are not contained in a single legislative act, but codified in separate statutes. There is no division of types of punishment into primary and extra. Also, the article describes other types of punishment, such as execution, imprisonment, fines, etc.

Constitutional Review of Statutes in Germany and the United States Compared

In Germany as well as the United States courts are engaging in the controversial and extremely political practice of constitutional review of statutes passed by the elected legislature. Under the German Constitution (Grundgesetz) this practice was placed in the hands of the specialized Federal Constitutional Court (Bundesverfasungsgericht). Its power to conduct such review is laid out in the German Constitution as well as in a separate federal statute. Provisions therein govern the means of constitutional review and stipulate that the Constitutional Court ought to declare a law to be null and void if it violates the German Constitution. However, bearing in mind the political consequences of invalidating a law, the Constitutional Court has in some cases not been reluctant to take alternative approaches in order to avoid declaring a law to be null and void. This is usually the case, if a declaration of invalidity worsens or fails to remedy the violation of the Constitution or if there are different political options about how to overcome a breach of the constitution (e.g. in a case of a breach of the principle of equality). In the United States, courts are also conducting constitutional review of statutes. However, the origins, scope and means of judicial constitutional review of statutes are different. Moreover, the U.S. judges find less guidance in the U.S. Constitution or other statutes on how to conduct constitutional review or how to address unconstitutional statutes. Despite the absence of explicit constitutional or statutory rules on how unconstitutionality should be dealt with, courts in the United States generally also default to declaring a statute void if it conflicts with the Constitution of the United States. However, just like in Germany, the U.S. courts deviate from the default remedy of nullity to adequately address unconstitutionality. In this article, we analyze and compare the techniques developed by the German Constitutional Court and the U.S. Supreme Court to avoid a declaration of nullity where it would be counterproductive. The article begins with a brief overview of the constitutional and statutory regimes for constitutional judicial review in Germany and the United States in Part I and then examines the origins and history of constitutional review in Part II. Part III of the article outlines the different means of constitutional review within the United States and Germany, which essentially stem from the different origins of judicial review in both jurisdictions. Part IV defines the concept of unconstitutionality under the Constitution of the United States and the German Constitution. Part V outlines the reasoning of the courts over questions of unconstitutionality. In Part VI. the legal effects of a declaration of unconstitutionality by the courts are examined and similarities are drawn. By doing so the article deals with the courts' default remedy of nullity and critically examines what other techniques are applied in both jurisdictions (e.g., partially invalidating laws, declaring laws to be incompatible with the respective constitution without invalidating them, giving admonitory decisions and interpreting laws in conformity with the constitution). Part VII finishes off by concluding that despite the different origins, scope and means of constitutional review within the United States and Germany, courts in both countries have a similar understanding of the meaning of unconstitutionality and apply similar techniques when deciding on the constitutionality of a law.

The Common Law Foundations of the Israeli Draft Civil Code – A Critical Review of a Paradigm-Shifting Endeavor

Although considered a mixed jurisdiction, the Israeli legal system differs from other mixed jurisdictions, as it was not originally a civilian jurisdiction that was subsequently exposed to the influence of common law, but rather the other way around. Since the establishment of the State in 1948, the Knesset adopted separate statutes, reforming contract law and law in enactments influenced by Continental law. However, the style and method of legal development have, at all times since the British Mandate (1917-1948), remained in the tradition of the Common Law. Life in developed states foresees intensive commercial relations. Persons, goods, services and capital regularly crossing national borders. To partake in such exchanges, a proper legal infrastructure is necessary. Israel is a small country, not an international commercial center, with a language not spoken or read by many outside Israel. Its legal system cannot develop fast enough by precedents. A carefully drafted civil code, based on comparative research, will improve Israel's legal infrastructure and serve as a basis for future development, similar to other countries that adopted a civil code. The Israeli Ministry of Justice shared this perception early on, however did not appreciate the magnitude of the hurdles that need to be cleared in order to achieve the paradigm shift from the common law tradition to a civilian one. The work on the Code spanned almost five decades, by first adopting separate statutes and, since 1975, planning a comprehensive Civil Code under the leadership of Prof. Uri Yadin, of Hebrew University, appointed as Deputy Attorney General at the Israeli Ministry of Justice. In 1984, the Drafting Committee was established, chaired by Prof. Aharon Barak, former professor of law at Hebrew University, at the time Justice (1995-2006, President) of the Israel Supreme Court, and its members included eminent Israeli legal scholars. The Draft Civil Code was submitted to the Knesset in 2011. It comprises 996 sections, organized in seven parts: the first two parts represent the parts of the Draft, the first addressing its fundamental principles (§§ 1-4), legal capacity (§ 5) and definitions (§ 6); and the second – acts (§§ 7-16), capacity to act (§§ 17-32) and agency (§§ 33-47). Three specific parts follow: part 3 – obligations (§§ 48-498), part 4 – property (§§ 499-692), and part 5 – succession (§§ 693-815). Part 6 covers limitation of claims (§§ 822-859), and part 7 – general provisions (§§ 860-996). Beyond offering a revision of existing legislation and adaptation to modern times, the Code was expected to make an important contribution to the establishment of a systematic jurisprudence. Coherence will lead to the crystallization of a clear outline of the system, and vagueness of legal doctrines is prevented. An analysis of the Code, however, casts doubts over its ability to achieve these goals. Thanks to the statutes already adopted since the 1960s and the Drafting Committee's work, adopting a civil code is feasible, but requires overcoming difficulties in first understanding: (a) how a codified system differs from an uncodified one, (b) the drafting process, in particular the role of legal science, and (c) the structure and contents of a workable civil code. In January 2007 an earlier version of the Draft was presented by the Drafting Committee a symposium that took place at Max Planck Institute for Comparative and International Private Law in Hamburg. The presentations of the Israeli scholars, together with critical comments made by eminent European scholars, were published in The Israeli Draft Civil Code in Comparative Perspective (ed. by Kurt Siehr and Reinhard Zimmermann) (2008). The book sheds much light on the perceptions of Committee members with respect to a considerable number of issues, and offers important insights to its critical evaluation. It is against this background that the Draft Civil Code is analyzed in this study. The paper addresses the following subject-matters: the case for adopting a civil code in Israel (part II); the preconditions for a successful civil code (part III); a critical evaluation of the Draft Civil Code's part on fundamental principles (part IV); a critical evaluation of the structure and contents of the specific parts (Part V); a critical evaluation of the structure and contents of the part, in particular the concept of the juridical act, as applied in the Draft (part VI); followed by conclusions and recommendations regarding the way forward (part VII).

Arbitration of family separation issues – a useful adjunct to mediation and the court process

For over half a century now, section 2(a) of the Arbitration Act 42 of 1965 has prohibited arbitration in respect of matrimonial and related matters. In this article it will be illustrated that this prohibition is clearly incompatible with present-day demands. Today there is a strong tendency in public policy towards alternative dispute resolution processes such as arbitration. As any recommendations that arbitration should be applied to family law disputes must be anchored in an analysis of the specific character of the arbitral remedy, the article begins by giving a broad overview of the nature of arbitration. This is followed by a discussion of the present-day demand for family arbitration, which examines the problems experienced with the adversarial system of litigation in resolving family law disputes, party autonomy, the development of alternative dispute resolution processes such as mediation and arbitration, the special synergy between mediation and arbitration, the success of arbitration in other fields of law and possible forerunners for family arbitration in South Africa. Inherent in the demand for family law arbitration are the many advantages of arbitration, which are also touched upon. Thirdly, current trends in England, Australia, the United States of America, Canada and India are analysed so as to identify a suitable family law arbitration model for South Africa. Special attention is paid to the matters that should be referred to arbitration – for example, should it be confined to matrimonial property and financial disputes or extended to all matters incidental to divorce or family breakdown, including children's issues? Other questions examined include whether family arbitration should comply with substantive law only, who should act as arbitrators, whether family arbitration should be voluntary or compulsory, what the court's role in the family arbitration process should be, and whether family law arbitration should be regulated by the existing Arbitration Act or by a separate statute with specialised rules for family matters. Lastly, it is concluded that although family arbitration will not have universal appeal or common application, it should be encouraged and enforceable for those who choose this private alternative dispute settlement technique to resolve their family disputes.

A Historical Overview of Market Abuse Prohibition in the United Kingdom

It is important to note that the United Kingdom’s market abuse regime has a separate and specific statute that deals with insider trading and another statute which broadly deals with market manipulation and other related market abuse activities. The market abuse legislation in the United Kingdom has further been carefully formulated to incorporate some of the provisions of the 2003 European Directive on market abuse. Consequently, this broad and extensive regulatory approach has led countries in other jurisdictions, including South Africa, to follow some of the enforcement approaches of the United Kingdom’s market abuse regime, especially with regard to the prohibition on insider trading. It is against this background that this article will, where applicable, undertake a comparative analysis of the market abuse prohibition in the United Kingdom and South Africa to explore their similarities and differences. To this end, a general historical overview of the insider trading legislation will be discussed first, followed by a similar discussion on the prohibition of market manipulation practices. Lastly, the available penalties will be discussed and thereafter, possible recommendations and/or concluding remarks will be provided. DOI: 10.5901/mjss.2014.v5n20p49

A Proposal to Create a Separate Statute for Insurance Fraud in the Criminal Law

A Proposal to Create a Separate Statute for Insurance Fraud in the Criminal Law

Mental Health Law of the People's Republic of China: inviting dialogue.

Mental Health Law of the People's Republic of China: inviting dialogue.

Civil liability of the producer for damage caused by a defective product

The first statute in Europe which regulated liability without fault for damage caused by a defective thing as a separate institute was the Obligation Relations' Act. In the European Community member states the grounds for liability for damage caused by a defective product have differed. Directive 85/374/EC was hence adopted with the aim to harmonise the regulations of the EU member states with regards to this type of liability. The text of this Directive is a compromise balancing the interests of the producers and the consumers in the European Community. Given the doubtless quality of the Obligation Relations' Act, its text was largely taken over by former SFRY countries and was used as a base for adopting new codifications. The paper investigates the manner in which the provisions of the Directive 85/374/EC were transposed into the national laws of former SFRY countries, where special attention is given to comparative solutions. The analysis shows that there are certain differences, that some solutions have both certain advantages and disadvantages, and that the newly adopted regulations are less favourable to the injured party compared to the position that they would have pursuant to the Obligations' Act. In addition, the author has noted certain discrepancies from the EU standards and requirements concerning the implementation of the provisions of the Directive 85/374/EC. The author argues that a better approach is to pass a separate statutes that would harmonize national regulations with the provisions of the above-mentioned Directive rather than to transpose its provisions in the statute governing obligation relations or consumer protection. The author advocates for the harmonization of Serbian legislation with the provisions of the Directive 85/374/EC in this manner.

Analysis of the intellectual property rights terms in Chinese private international law: on the perspective of the latest regulations

The Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China is the first Chinese separate statute on private international law. It came into force at April 2011 and modernised the conflicting rules concerning foreign-related relations in Chinese legislation system. Besides the general provisions, three terms related to the intellectual property were provided in the new law, including the applicable law of ownership and content, the assignment and the liabilities for the infringement of intellectual property rights. Although the new law contains some flaws, it is nevertheless a milestone in the development of Chinese law.