Tacit Consent Research Articles

Affordances of a New Language: Abbas Khider’s Claim to Community inGerman for Everyone

Affordances of a New Language: Abbas Khider’s Claim to Community in<i>German for Everyone</i>

Proceedings Before the Supreme Pharmaceutical Court Concerning Infringement of the Rules of Professional Ethics of a Pharmacist

Members of the pharmacists’ self-government can be held liable before pharmaceutical courts for conduct breaching the rules of professional ethics and deontology, and infringing legal regulations concerning the practice of the pharmacist’s profession. Thus, the basis of professional responsibility of pharmacists is generally similar to the rules of professional liability of doctors, nurses, and midwives. Nevertheless, certain significant differences can be noticed in the course of the proceedings. Such a difference occurs in the proceedings before the Supreme Pharmaceutical Court. The professional group of pharmacists cannot be indifferent to punishable acts because this would imply tacit consent to breach of legal provisions regulating the professional practice and the rules of professional ethics and deontology set forth in the Code of Ethics of the Polish Pharmacist. Therefore, it is crucial that pharmacists, who practise a profession of public trust, should take care of the appropriate status of their occupation in order to conduct properly their mission of serving the society.

An outline of private international law in the branches of public international law

The author reviews the key aspects of using the norms of private international law in intergovernmental relations, development of the universal legal norms and methods in the conditions of globalization. It is noted that public and private international law differ in multiple parameters, particularly the method of regulation. Private law relationships are regulated by the national legislations, while public law relationships are regulated by international treaties, which can be expressed in form of agreements, customs, or tacit consent. consent form. The author underlines the importance of distinguishing between the sphere of private and public law, as well as proper application of the corresponding regulatory mechanisms. To research employs formal-logical, systematic, comparative, and other methods. The relevance of modernizing legal regulation of foreign economic activity is emphasized. The author notes that the norms that establish the procedure for regulating the behavior of private and legal entities have been included into the international law. The manifestation of this phenomenon can be seem in the international investment law (investment process), law of the sea (in the area of resource extraction). The future position of privately held companies in the development of lunar resources is being actively discussed. This phenomenon can be substantiated by the need to establish a unified rule of law for the activity of non-state actors in the corresponding branches of international law.

Silence and tacit consent in Armenian public law: Legal fiction, presumption or substitution?

In the article, the author researches the problematic aspects of silence in law, in particular, the definition of silence is provided, its meaning at various stages of historical development is outlined, the types of silence are described, the legal consequences of silence are discussed, and the place of silence in the sphere of legal conventions (legal presumptions, fictions, substitution). The author provides the following definition of silence: silence is a legitimate or unlawful inaction of the subject of legal relations, from which the conditional content of the subject’s will on a legal issue follows and (or) with which a positive law (transaction) directly connects the occurrence of legal consequences. Since silence can be interpreted as a sign of agreement or disagreement, it can be argued that it creates uncertainty. Given the fact that legal certainty in modern life is a constitutional value, positive law should exclude or mitigate this uncertainty, or the content of the will arising from silence should be predetermined by positive law or transaction. The result arising from the silence falls within the realm of legal conventions and in order to find out whether silence is a legal presumption, legal fiction or substitution, the article compares these categories. The author concludes that the legislator can formulate the same provision regarding silence both with the help of legal fiction (fictitious consent) and with the help of a legal presumption (presumed consent). At the same time, the article provides a justification for the impossibility of considering tacit consent as a legal substitution, in view of the fact that in objective reality there is no conditional silence, which is an essential reason for excluding the basis of legal substitution.

THE CAUSES AND CONDITIONS OF CRIME IN THE FIELD OF ECONOMY

The article examines the issue of combating criminal offenses in the field of economics. It is emphasized that economic crime is caused by destructive tendencies in the development of market relations in the economy and social sphere. Lack of real protection of legitimate economic relations, lag of law-making activity from the needs of economic practice, unsystematic adoption of legal acts concerning certain elements of the economic system. Recently, there has been a process of merging economic and criminal offenses, as well as merging with organized crime. Penetrating into various spheres of the economy, criminal associations seek not only to establish control over the activities of specific enterprises but also to create their own structures capable of occupying a leading position in the infrastructure of individual industries. The intellectual level of criminal activity increases, the scope, and methods of encroachment expand. The reasons for committing mercenary crimes in the economic sphere are both objective and subjective. Thus, in the determination of crime involved both biological and social characteristics of man. An economic criminal does not perceive himself as a criminal, although he admits that he is breaking the law. The problem here is that the media is very one-sided coverage of the image of the traditional criminal, as well as the fact that economically criminal behavior is difficult at first glance to distinguish from socially obedient. Economic criminals justify their crimes by committing them with the tacit consent or approval of public opinion. They deny causing harm to citizens, and also claim that almost all businessmen do the same. If the profit significantly exceeds the possible punishment, then such a crime becomes profitable. Criminal behavior should not be economically or socially profitable. At the same time, it is important to improve the economic and social living conditions of the people.

Lojalność społeczeństwa polskiego a konsolidacja władzy państwowej w latach 1956–1980

[The loyalty of Polish society and the consolidation of state power in 1956–1980] The article introduces several comments and reflections on the tensions between the state power and society in People’s Poland in 1956–1980, in the context of the consolidation of power and loyalty of society. During this period, the party and state authorities, wishing to maximally consolidate their power, did everything to achieve the ability and readiness to use all means necessary to control social behavior, to maintain the loyalty of society. It required total ideological unity of the party political elite and iron discipline in the functioning of its institutions. Such a strategy did not prevent social outbreaks. The emerging protests meant above all a real loss of control over society, social disorganization. Wishing to enjoy the loyalty of a society devoid of political alternatives, in other words its tacit consent, it would have to provide it with a certain level of living conditions. However, this task was very difficult, if at all possible, to be implemented in the realities of the centrally planned economy.

Inactivity of public authority as a subject of land dispute in administrative legal proceedings

In recent years, conflicts in land relations between citizens and government have been increasingly occurring in Ukraine. On the one hand, citizens are striving to realize their right to receive a land plot free of charge, on the other hand, authorities are trying to ignore the corresponding statements of citizens. The purpose of this research is to formulate a legal position concerning the inactivity of authorities in relations arising from the initiative of citizens regarding granting them permission for the development of a land management plan with the subsequent transfer of a land plot into ownership, as well as to determine the optimal way to protect the violated rights of citizens as a result of unlawful inactivity of public authorities. The study has been characterization and identification of peculiarities of application of the principle of tacit consent in land permission relations; indicated ways of protecting the rights of an individual as a result of unlawful inactivity of a powerful subject; established nature of the discretionary powers of the competent authorities. The importance and value of research are complex in nature and is revealed in its social significance since it consists in publication and raising problematic issues in the land sphere for public discussion; the economic value is manifested in helping to resolve real estate ownership problems; legal significance consists in determining perspective directions of legal and regulatory improvement of land relations; the applied value which is manifested in the promotion of the activities of local self-government bodies and administrative justice.

Renewal of the Land Lease Agreement: Problems of Theory and Judicial Practice

Land is the most important object of the environment. It is an indispensable means of production in agriculture, the territorial basis for the location of various objects. It is argued that the proper functioning of land lease relations is a guarantee of sustainable economic circulation, a guarantee of the exercise of rights and performance of duties by both the lessor and the lessee of the land. The issue of renewal of the land lease agreement after its expiration is debatable. The purpose of the study is to outline the existing theoretical and law enforcement problems regarding the renewal of the land lease agreement, to make proposals to eliminate the latter. To achieve this purpose, a system-structural method of scientific knowledge was used, which helped analyse the prescriptions of the legislation on renewal of the land lease agreement, their relations and interaction were highlighted. The study proves that the lessee's pre-emptive right exists to renew the land lease agreement only for the same period and on the same terms and in the absence of objections to such renewal by the lessor. If the lessee tries to change the essential terms of the land lease agreement and in the absence of the lessor's consent to such changes, the lessee's pre-emptive right to enter into a land lease agreement for a new term is terminated. It is emphasised that in each dispute it is necessary to establish the good faith of the lessor’s actions to refuse to renew the land lease agreement with one person (lessee) and the subsequent conclusion of the agreement with the new lessee. The use of the category of "less protected" party in land lease legal relations appears debatable, because depending on the subject composition of the parties to these legal relations, such a party can be both a lessee and a lessor. It is concluded that the Supreme Court should unify the practice of applying the provisions of the law on the renewal of the land lease agreement (only in combination with other regulations or autonomously, with the use of the principle of "tacit consent"). The possibility of autonomous application of such instructions is indicated by the provisions of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning Counteraction to Raiding”. The revealed shortcomings of the legal regulation of the renewal of the land lease agreement after its expiration indicate the directions of improvement of the legislation in land lease, which has practical significance

Transforming Unused Spaces in a Shrinking City through Individuals’ Spontaneous Occupation Activities: The Case of Janghang, South Korea

This study examines individual occupancy of unused space from an urban management perspective. It also identifies measures for sustainable city management by exploring the changes in unused space and relationships between various stakeholders based on personal occupancy processes. The target area of this study is Janghang, which has been characterized by population decline and economic recession over the past decade. Participants were recruited through snowball sampling and informal interviews, and data were analyzed using the open coding method. The results of the study show that unused space was occupied for various purposes such as to harvest food, pursue leisure activities, and alleviate the adverse effects of spaces remaining unused for extensive periods. The results identified owners, occupants, public organizations, and neighborhoods as stakeholders in unused spaces. Moreover, the neglected unused space was maintained as a managed space through tacit consent as well as flexible negotiation and stakeholders’ collective consciousness. Agreement and coordination among stakeholders and the physical environment of the unused space are crucial factors in managing unused space and landscapes because of the differences between landowners and occupants in a shrinking city.

ВПЛИВ ЗОВНІШНЬОПОЛІТИЧНИХ ЧИННИКІВ НА СТАНОВЛЕННЯ УКРАЇНСЬКОЇ ДЕРЖАВНОСТІ У РОКИ ВИЗВОЛЬНИХ ЗМАГАНЬ (1917–1921 рр.)

This article is devoted to the study of the period of Ukrainian national liberation struggles of 1917-1921, to determine the factors, first and foremost, that led to the loss of Ukrainian statehood. An analysis of the events of this period shows the major powers of Europe and the USA pursued a policy of non-recognition of the independent Ukraine, supported all anti-Ukrainian forces. Thus, without offering any real assistance to the Ukrainian People's Republic, the Entente countries have neither condemned the intervention and the mass terror against Ukraine. In fact, the further occupation of Ukraine by the Bolsheviks took place with the tacit consent of the Entente. Similarly, the fate of the Western Ukrainian state, which by decision of the leading Entente countries was divided between the Eastern European countries. In a new order in Europe, Ukraine hadn’t gained recognition and lost territorial integrity for the benefit of Russia and the Entente countries. With the Entente’s support, Russia reclaimed the main territories of the former empire. In most of Ukraine, a totalitarian regime was established, and for many years the democratic states did not notice the Famine, repressions, deportation of Ukrainians, the suppression of the resistance movements and the economical exhaustion of Ukraine.The current period of the independence of Ukraine has shown that the leading West- ern states do not always understand the geopolitical significance of Ukraine, do not respond to the aggressive statements, intentions and actions of some of its neighbors, have forgotten their promises to guarantee the territorial integrity and integrity of the state for the waiver of the giant nuclear power. Through historical analogies, the authors substantiate the conclusion that such policy at one time led to the admission of Ukraine into the USSR, the redistribution of the world map not only in the 20-30s, but also after the Second World War, and accordingly may lead to the similar consequences in our time.

More Than Anti-Communism: The Cold War and the Meanings of Democracy in Taiwan

ABSTRACT Governments across anti-communist Asia, with US backing or tacit consent, devised institutions and practices for marginalising popular forces. Such internalisation of the Cold War involved measures ranging from violence and ideological mobilisation to disciplinary modes of control. With democratisation, Cold War devices for domestic control could remain entrenched or be rolled back. Examining the relationship between democratic transformation and the unwinding of Cold War practices in Taiwan can shed new light on democratic change in the region. While the Kuomintang regime of the martial law period had abundant resources for suppression, electoral politics was left relatively undisciplined by anti-communist meanings of democracy. The limited elections produced a new group within the political elite, who negotiated for a more open electoral landscape. The rules governing electoral politics in Taiwan today reflect the principles of pluralism and inclusiveness that were at the heart of that elite bargain. As far as control over electoral politics is concerned, and in so far as the electoral sphere’s growth is taken as significant, democratisation moved Taiwan out of the shadow of the Cold War’s internalisation. Comparison with South Korea clarifies an alternative form of change.

ФІКТИВНИЙ АДМІНІСТРАТИВНИЙ АКТ: ПЕРСПЕКТИВИ РЕГУЛЯЦІЇ У КРАЇНАХ ЦЕНТРАЛЬНОЇ АЗІЇ

The Central Asian countries – Kazakhstan (twice: in 2000, 2015–2016), Kyrgyzstan (twice: in 2004, 2015), Tajikistan (in 2007), and Uzbekistan (twice: in 2007, 2015–2016) – are trying to implement laws on administrative procedure into their national legal systems. Laws on administrative procedure are а tool of western philosophy, an institute of European administrative law of the European understanding of open government and effective administrative regulation, approaches to which the countries of the region have begun to develop relatively recently. Instead of a formal pursuing the adoption of laws on administrative procedure, it is more important to find answers to the countries’ readiness to accept laws on administrative procedure into their existing social, political and economic realities, including the peculiarities of the legal systems. The research notes а lack of two key concepts of the laws on administrative procedure – the concept of administrative procedures as such and the concept of administrative acts. It is analyzed the possibility of implementation of one of the variants of the administrative decision adopted as the result of a fictitious approval (Genehmigungsfiktion). Today, in Central Asia а truncated model of fictitious approval is in operation – the principle “silence gives consent” – within the sphere of licensing procedures of entrepreneurship: “if the public authority does not submit within the established deadlines а motivated refusal or authorization document, such а document is considered to be issued (i. e. the procedure is deemed to be completed)”. The article provides its comparative legal analysis of the application of fictitious approval in the countries of Central Asia. The author arrives at а number of conclusions: − administrative “silence” can be used by the legislator as a fictitious administrative act (tacit consent); − administrative “silence” is а form of an administrative act, but only on the basis of legislative clauses; − objective limitations of the use of administrative “silence” are shown; − different types of inactivity are classified for its effective objection, the position of the term in the system of such definitions as “administrative silence”, “delay in the adoption of an administrative act”.

Prećutni pristanak u doktrinama Džona Loka i Džona Rolsa

Political theory often raises the question of how to establish an authority that is legitimate, the latter implying that the said authority does not threaten the autonomy of the will of an individual, which, according to modern political theory, is a condition allowing us speak about authority over citizens. Otherwise, we could talk about subjects of that authority, which is not relevant for this paper. In order to preserve the autonomy of the will of an individual, it is necessary that the decision-makers of the authorities voluntarily consent to them. There are different types of consent in political theory and practice, among which are explicit and tacit consent. This paper deals with the phenomenon of tacit consent, more precisely with an analysis of the concept of tacit consent in the doctrines of John Locke and John Rawls.

Prećutni pristanak i troškovi neulaska u političku zajednicu

This paper offers an analysis of an issue related to the social contract theory The issue concerned is disagreement in the form of tacit consent. Namely, if we accept the model of tacit consent, then an issue of costs of this disagreement is raised. These costs cannot be treated in the same way as in the case of express consent. The reason is that, in the case of tacit consent, a person does not have same chances and opportunities as others. This offers a possibility of claiming discrimination, especially if we accept the fact that these costs can be so high so that they deny the possibility of choice. At least in a practical sense and de facto. So, this topic must be understood properly if we want the social contract theory to function well. In this paper, we will try to do that through a logical and semantic analysis of basic terms: tacit consent, disagreement, and costs of contract.

Мовчання як аргумент і прояв поваги в аргументації за Джоном Локом

In the article, referring to the method of rational reconstruction described by R. Rorty, an analysis of some works of J. Locke has been made in order to identify new prospects in John Locke's philosophy researches. As a result, it’s been demonstrated the presence of silence as an argument and a manifestation of respect J. Locke’s research of realms of cognition, political philosophy and philosophy of education. This is not covered in modern John Locke's philosophy researches. The authors emphasize that J. Locke, although not directly exploring silence as an argument, however, describes the argument ad ignorantiam, the wording of which in the work «An Essay Concerning Human Understanding» and his understanding of tacit consent in the work «Two Treatises of Government» are related to silence as an argument and a manifestation of respect. The position that silence as an argument is present in all four arguments (argumentum ad verecundiam, argumentum ad ignorantiam, argumentum ad hominem, argumentum ad judicium) described by J. Locke is substantiated. Additionally, the argument ad ignorantiam can be considered both as an argument from silence (ex silentio argument) and as a kind of argument to silence. Considered arguments can serve as an argument to silence for the proponent and/or the third party, that is, anyone who is not directly involved in the dispute. Basing on J. Locke's explanation of the characteristic feature of tacit consent, that is, the absence of the expressed consent/disagreement, the possibility of distinguishing the indirect connection between tacit consent and the argument ad ignorantiam is demonstrated, since both tacit consent and the argument ad ignorantiam in J. Locke's works rely on the absence of expressed statements on the consent or disagreement of the opponent. It is established that the ideas of the education of children described by J. Locke also correlate with silence as an argument and a manifestation of respect. Applying the classification of the types of respect proposed by S. Hudson and complemented by R. Dillon to the use of the term «respect» to the various texts of J. Locke, it is substantiated that described by him respect covered almost all kinds of this classification.

‘Targeted killing’ and the lack of acquiescence

AbstractOver the last decade, the concept targeted killing has received much attention in debates on the customary interpretation of the right to self-defence, particularly in the context of practices such as US armed drone attacks. In these debates, government silence has often been invoked as acquiescence to thejus ad bellumaspects of targeted killing. Focusing on the question of state silence on targeted killing practices by the Israeli and US governments in recent years, this article investigates over 900 UN Security Council and Human Rights Council debates and argues that there has been no tacit consent to targeted killing. The analysis firstly shows that the majority of states have condemned Israeli targeted killing practices and have raised concerns about armed drone attacks, while falling short of directly protesting against US practices. The article, secondly, applies the customary international law requirements for acquiescence and challenges the idea that silence on US armed drone attacks can be understood as a legal stance towards targeted killing. The article, finally, investigates the political context and engages with alternative interpretations of silence. Contextualizing acts of protest and lack of protest within an asymmetrical political context, the article posits that the invocation of silence as acquiescence in the case of targeted killing is problematic and risks complicity of legal knowledge production with the violence of hegemonic actors.

Sex, Consent, and the Unconscious Female Body: Reading Tess of the D’Urbervilles Alongside the Trial of Brock Allen Turner

This paper addresses the role of literature and literary interpretation in Western culture’s discussion and framing of women’s tacit sexual consent, by analyzing the representation of sexual consent and the semi-conscious female body in Thomas Hardy’s Tess of the D’Urbervilles (1891) alongside the court documents from the trial and conviction of Brock Allen Turner. While these stories are of course different, both narratives reflect a culture that eroticizes the less-than-conscious and passive female body, and both wrangle with the challenge of evaluating the consent that same body supposedly might have given before falling into complete unconsciousness. In the nineteenth-century novel, the female body on the verge of sleep is often represented as a desirable and desiring body. The Turner trial points to the continued cultural fascination with the erotic passive female body and the ways in which this figuration of feminine sexuality pushes consent beyond its rational and legal limits. This article explores the sexualization of the semi-/unconscious female body, and the notion that such a body could possibly be capable of consent, to demonstrate how literary narratives and criticism are related to—and sometimes complicit in—contemporary rape culture.

Gender standards and expectations on sexual deviations in the gender culture of Ukraine

This article is devoted to the definition of the value structures of gender culture in aspects of gender stereotypes regarding the application of moral-pedagogical and legal sanctions in the manifestations of deviant behavior on the basis of the ideology of matriarchal racism (mysandry) and typical problems arising from its availability.The writings of the authors form the theoretical basis for the author’s theory, which consists essentially of the following key provisions set forth in the article:1) latent gender racism in Ukrainian gender culture is an ideology of double standards, which involves parallel promotion and prohibition in the area of sexual norms and deviations for men and women;2) Gender stereotypes refer to the assessment of male sexual behavior as subject to enhanced moral, legal and pedagogical control over women’s sexual behavior;3) the cultivation of homophobia is an instrument of gender power that allows women to manipulate men by imposing a number of prohibitions on public male homoeopathy in encouraging women’s similar behavior;4) stigmatization of homeroticism allows it to be used as a tool of social control, including the system of political security, in which the family acts as a grass root. As a result of the study, the author concludes that the study of the ideology and morality of latent gender racism in the gender culture of Ukraine has allowed to dismiss most of the assumptions about egalitarian peculiarities of gender positioning for male and female respondents. At the same time, the regime of privilege, available to the Ukrainian gender culture, makes it possible to define gender scenarios as matriarchal-racist and those that are agreed upon by both men and women. The consensual nature of such a situation proves not only the tacit consent of most with the guidelines of gender racism, but also the lack of understanding of the policy of gender equality of the western type. Such misunderstanding minimizes the chances of establishing an egalitarian gender culture and contributes to further deepening both gender inequality and the resulting gender conflict of Ukrainian society with all its implications.

El consentimiento en los contratos telefónicos de prestación de servicios de comunicaciones ante la nueva regulación sobre protección de datos personales

Las operadoras de telefonía recurren cada vez con más frecuencia a campañas comerciales telefónicas con el objeto de ofertar a sus usuarios nuevos productos o para captar nuevos clientes. Sin embargo, se incumple en un alto porcentaje de las ocasiones la obligación de remitir el contrato por escrito al nuevo cliente o de la grabación telefónica a petición de un colegio arbitral u órgano judicial. Ante la inexistencia de contrato escrito o de la grabación del contrato verbal, las empresas han venido recurriendo a la figura del consentimiento tácito de cara a probar la realidad de un contrato objeto de discusión. Esta situación, con la aplicación de la nueva regulación en materia de protección de datos, va a experimentar una notable transformación al no tener cabida la aplicación del referido consentimiento tácito. Por este motivo, las empresas de telefonía deberán reestructurar la forma en la que vienen llevando a cabo su contratación telefónica si no quieren verse expuestas a fuertes sanciones por parte de la Agencia Española de Protección de Datos.

Ideology and Morality of Gender Culture in Ukraine

The article is devoted to the research of the ideology and morality of latent gender racism in the gender culture of Ukraine.The author summarizes the first part of the results of empirical research on gender culture of Ukraine, which deals with such units as: a) gender positioning of men and women (equality / inequality); b) gender hierarchies (dominant / submissiveness / egalitarianism); c) gender standards for norms for assessing informal behavior and informal nonverbal-communicative signals.The analysis allows the author to reject the majority of assumptions about egalitarian peculiarities of gender positioning for male and female respondents. It is stated that the regime of privilege available to the Ukrainian gender culture allows to define gender scenarios as matriarchal-racist and those that are agreed upon by both men and women.It is emphasized that the consensus of such a situation shows not only the tacit consent of the majority with the guideline of gender racism, but also the lack of understanding of the policy of gender equality of the western type. Such misunderstanding minimizes the chances of establishing an egalitarian gender culture and contributes to further deepening both gender inequality and the resulting gender conflict of Ukrainian society with all its implications.