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Report on Enforcing the Rights of Children in Migration 关于执行移徙儿童权利的报告
Q1 LAW Pub Date : 2023-10-19 DOI: 10.3390/laws12050085
Warren Binford, Michael Garcia Bochenek, Pablo Ceriani Cernadas, Emma Day, Sarah Field, Marci Hamilton, Ton Liefaard, Benyam Mezmur, Fasil Mulatu, Ann Skelton, Julia Sloth-Nielsen, João Stuart, Hans Van Loon, Jinske Verhellen
The ILA Study Group began its work by identifying guiding principles that should frame and inform state practices with respect to children in migration. These principles included, but were not limited to, non-discrimination; the best interests of the child; the right to life, survival, and development; the right of the child to express their views on all matters affecting them; and the right to an effective remedy. The Study Group identified some of the most common rights violations for children in migration such as arbitrary age assessment practices; inadequate and age-inappropriate reception policies and facilities; and immigration detention of children and other coercive practices. The Study Group undertook a multidisciplinary approach by summarizing the research documenting the harmful effects of these practices on child health and well-being. It surveyed (1) treaties and international instruments that might recognize a right or remedy for children on the move; (2) regional and international fora where the claims of children could be heard; and (3) the growing body of regional and international jurisprudence upholding the rights of children in migration. Finally, it identified gaps in the international and regional frameworks and formulated recommendations as to how to ensure children in migration are able to enforce their rights and access justice.
国际移民法研究小组的工作始于确定指导原则,这些原则应该为各国在移民儿童方面的做法提供框架和信息。这些原则包括但不限于不歧视;儿童的最大利益;生命权、生存权和发展权;儿童就影响到他们的一切事项发表意见的权利;以及获得有效补救的权利。研究小组确定了一些最常见的侵犯移徙儿童权利的行为,如武断的年龄评估做法;接待政策和设施不足,与年龄不符;移民拘留儿童和其他强制做法。研究小组采取了多学科方法,总结了记录这些做法对儿童健康和福祉有害影响的研究。它调查了(1)可能承认流动儿童的权利或补救办法的条约和国际文书;(2)听取儿童诉求的区域和国际论坛;(3)越来越多的地区和国际判例支持移民儿童的权利。最后,它确定了国际和区域框架中的差距,并就如何确保移徙儿童能够行使其权利和诉诸司法提出了建议。
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引用次数: 0
An Overview of the Portuguese Electronic Jurisdictional Administrative Procedure 葡萄牙电子司法行政程序概述
Q1 LAW Pub Date : 2023-10-17 DOI: 10.3390/laws12050084
António Mendes Oliveira, Ricardo Lopes Dinis Pedro, Pedro Miguel Alves Ribeiro Correia, Fabrício Castagna Lunardi
In this paper, we seek to define the Portuguese Electronic Jurisdictional Administrative Procedure and characterize the scope and success of its implementation in terms of access to justice and court efficiency. It encompasses different perspectives on the judicial system and the electronic administrative procedure, reflecting the diversity of its authors, and combines a theoretical approach and discussion with statistics produced with official judicial data. Therefore, it introduces the issue and its background and discusses the models and principles of electronic judicial procedure and its representation in the Portuguese judicial procedure and law. It also presents the Portuguese exceptional and temporary regime for conducting judicial hearings in the context of the COVID-19 pandemic, discussing its merits and presenting the corresponding judicial statistics. The paper concludes that the advent of electronic judicial procedure, driven by technological advancements and aiming to achieve procedural effectiveness and efficiency, represents a paradigm shift and a change in the nature of the legal process, i.e., an ontological transformation in the theory of the process that requires a robust conceptual framework, to ensure consistent interpretation and application of procedural law and to guarantee respect for equality and legal certainty.
在本文中,我们试图定义葡萄牙电子司法行政程序,并从诉诸司法和法院效率的角度描述其实施的范围和成功。它包含了对司法系统和电子行政程序的不同观点,反映了其作者的多样性,并将理论方法和讨论与官方司法数据产生的统计数据结合起来。因此,本文介绍了这一问题及其产生的背景,并讨论了电子司法程序的模式和原则及其在葡萄牙司法程序和法律中的表现。它还介绍了葡萄牙在2019冠状病毒病大流行背景下进行司法听证会的特殊和临时制度,讨论了其优点并提供了相应的司法统计数据。本文的结论是,在技术进步的推动下,以实现程序的有效性和效率为目标,电子司法程序的出现代表了一种范式的转变和法律程序性质的变化,即程序理论的本体论转变,这需要一个健全的概念框架,以确保程序法的一致解释和适用,并保证尊重平等和法律确定性。
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引用次数: 1
Theory of Endorsements: Legislative and Jurisprudential Development in Romania and in the European Union 背书理论:罗马尼亚和欧盟的立法和法理发展
Q1 LAW Pub Date : 2023-10-16 DOI: 10.3390/laws12050083
Vasilica Negruț, Ionela-Alina Zorzoană
Considered as being the main component element of the advisory procedure, an endorsement is an opinion that an administrative body requests from certain authorities and administrative structures, according to the subject matter of the regulation, to adopt/issue an administrative deed. In this article, using logical interpretation as well as comparative analysis, we set out to highlight the significance of endorsements in Romania, outline their legal nature, and establish the relationships between the types of endorsements, so that the conclusions may represent a starting point for a future theory of this type of documents. We considered the French specialty literature to give a comparative law note to our approach. At the same time, we considered certain types of endorsements in some European states, based on the analysis of a Codex regarding a series of Constitutions of some European states in order to emphasize the importance they give to these endorsements. We gave an overview of the theory of endorsements through the lens of the existing legislation over time in Romania or rather, its lack thereof. In our study, we also referred to the draft ReNEUAL Code of Administrative Procedure of the European Union, which aims at “transposing the European values into the regulation of administrative procedure related to the non-legislative implementation of European Union law and policy”. We set out on this analysis, considering the lack of legal regulation of endorsements, their legal nature, and their effects, with reference not only to doctrine but also to some cases that we considered for analysis from court practice. In the framework of the new effort to develop the Code (still in the draft form) in Romania, it seems that endorsements will receive their well-deserved place, distinct from simple administrative operations. Our main approach concerns Romanian legislation, doctrine, and jurisprudence, but it also includes a brief analysis of the jurisdiction of the Court of the European Union, with reference to the endorsements issued at the level of the institutions of the European Union. As a general conclusion, we believe that endorsements should be separately regulated, by clearly distinguishing between administrative documents and administrative operations, in the future Code of Administrative Procedure.
作为咨询程序的主要组成部分,核可是行政机构根据条例的主题要求某些当局和行政结构通过/签发行政契约的意见。在本文中,通过逻辑解释和比较分析,我们着手强调罗马尼亚背书的重要性,概述其法律性质,并建立背书类型之间的关系,以便结论可能代表未来这类文件理论的起点。我们考虑了法国专业文献,为我们的方法提供了比较法注释。与此同时,我们根据对一些欧洲国家一系列宪法的法典分析,考虑了一些欧洲国家的某些类型的认可,以强调它们对这些认可的重要性。我们通过罗马尼亚现有立法的镜头对背书理论进行了概述,或者更确切地说,它缺乏背书理论。在我们的研究中,我们还参考了欧盟的ReNEUAL行政程序法典草案,该草案旨在“将欧洲的价值观转化为与欧盟法律和政策的非立法实施有关的行政程序的监管”。考虑到背书缺乏法律规范、背书的法律性质和效力,我们不仅参考了理论,还参考了我们从法院实践中分析的一些案例,开始了这一分析。在罗马尼亚发展《治罪法》(仍处于草案形式)的新努力的框架内,与简单的行政操作不同,核可似乎将得到其应得的地位。我们的主要方法涉及罗马尼亚的立法、理论和法学,但它也包括对欧洲联盟法院的管辖权的简要分析,并参照欧洲联盟各机构一级发出的核可。作为一个总的结论,我们认为,在今后的《行政程序法》中,应当通过明确区分行政文件和行政业务来单独规定背书。
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引用次数: 0
Continuity of Parental Responsibility in Child Abduction Cases: Lesson Learned from the Case of Z. v. Croatia 儿童诱拐案件中父母责任的连续性:从Z.诉克罗地亚案中吸取的教训
Q1 LAW Pub Date : 2023-09-29 DOI: 10.3390/laws12050082
Mirela Župan, Martina Drventić Barišin
The new ECtHR decision in the case of Z. v. Croatia suggests that the rule of parental responsibility acquired ex lege is not always easy to implement in child abduction cases. The case primarily raised the question of determining whether the removal or retention of the child is wrongful in situations when the unmarried left-behind father does not have the ex lege right to parental responsibility under the law of the country of habitual residence, but he has acquired it under the law of the country in which he and the child had their previous habitual residence. In addition, the case of Z. v. Croatia raises the issue of renvoi, the habitual residence of children whose lifestyle involves frequent moving with their parents, as well as the issue of the need for thorough justification of the court decision. The identified difficulties showed the need to clearly elaborate and determine the interrelationship between Article 3 of the Child Abduction Convention and Article 16(3) of the Child Protection Convention, as well as the necessity to evaluate domestic legislative solutions and the practice of the national authorities that have led to the determination of violation in the present case.
欧洲人权法院在Z.诉克罗地亚一案中的新裁决表明,在诱拐儿童案件中,依法获得的父母责任规则并不总是容易执行的。本案主要提出的问题是,在未婚留守父亲根据经常居住地国的法律不具有依法承担父母责任的权利,但根据他和孩子以前的经常居住地国的法律已经取得了这种权利的情况下,确定将孩子带走或留下是否违法。此外,Z. v.克罗地亚一案还提出了反迁问题,即生活方式涉及与父母经常搬家的儿童的惯常住所问题,以及需要为法院的裁决提供充分理由的问题。所查明的困难表明,有必要明确阐述和确定《绑架儿童公约》第3条与《保护儿童公约》第16(3)条之间的相互关系,也有必要评价导致本案中对侵权行为的确定的国内立法解决办法和国家当局的做法。
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引用次数: 0
China’s Investment in the Nigerian Energy Sector: A Prognosis of the Dispute Settlement Paradigm 中国在尼日利亚能源领域的投资:争端解决模式的预测
Q1 LAW Pub Date : 2023-09-28 DOI: 10.3390/laws12050081
Wen Xiang, Olubayo Oluduro
Nigeria is one of the top countries of China’s outward foreign direct investments in energy and power projects to meet the needs of China’s fast-growing energy-intensive industries. Following several risks faced by investors to invest in countries with high levels of regulatory, judicial and political uncertainties that appeared in most African states, including Nigeria, contracting parties often take steps to advance and enhance their investment relations and investment climate through an agreement or bilateral investment treaties. This paper examines the China–Nigeria Bilateral Investment Treaty (BIT) and the investment arbitration framework in place in the energy sector. It includes a general analysis on China–African BITs and features common difficulties and possible ways of addressing them. It analyzes the adequacy or otherwise of these frameworks and the various protections afforded to the contracting parties or the host state and the investors. It contends that the current China–Nigeria BIT is lacking essential environmental and social aspects, including sustainable development, corporate social responsibility, transparency and respect for the human rights of host communities, for the promotion of better China–Nigeria investment relations. Notwithstanding the fact that there has not been any known energy dispute in China–Nigeria-related projects, this paper calls for the need for an effective and efficient dispute resolution mechanism to address future disputes between the parties, in order to promote a favorable investment climate for Chinese (and international) investors willing to invest in Nigeria. It advocates that the China–Nigeria BIT should be unambiguous and well drafted to cover issues that could best address investment disputes in the energy sector.
尼日利亚是中国对外直接投资能源和电力项目最多的国家之一,以满足中国快速增长的能源密集型产业的需求。在包括尼日利亚在内的大多数非洲国家,投资者在监管、司法和政治高度不确定的国家投资时面临若干风险,因此,缔约方往往采取措施,通过协议或双边投资条约来推进和加强其投资关系和投资环境。本文考察了中国-尼日利亚双边投资协定(BIT)和能源领域的投资仲裁框架。它包括对中非双边投资协定的总体分析,以及共同的困难和可能的解决办法。它分析了这些框架的充分性或不充分性,以及向缔约方或东道国和投资者提供的各种保护。它认为,目前的中尼投资协定缺乏必要的环境和社会方面的内容,包括可持续发展、企业社会责任、透明度和对东道国社区人权的尊重,以促进更好的中尼投资关系。尽管中国与尼日利亚相关的项目尚未发生任何已知的能源争端,但本文呼吁需要一个有效和高效的争端解决机制来解决各方之间的未来争端,以便为愿意在尼日利亚投资的中国(和国际)投资者创造有利的投资环境。中国主张,中尼双边投资协定应明确明确,并应精心起草,涵盖最能解决能源领域投资争端的问题。
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引用次数: 0
A Convergence of Violence: Structural Violence Experiences of K–12, Black, Disabled Males across Multiple Systems 暴力的聚合:跨多个系统的K-12、黑人、残疾男性的结构性暴力经历
Q1 LAW Pub Date : 2023-09-20 DOI: 10.3390/laws12050080
Gayitri Kavita Indar, Christine Sharon Barrow, Warren E. Whitaker
In American schools, conversations about violence prioritize direct violence, while indirect violence is virtually ignored. This current emphasis overlooks the structural violence deeply embedded in America’s social, political, and economic institutions, which were intentionally designed to exclude, and position some groups to experience disproportionate levels of poverty, exploitation, and persecution. To understand the mechanisms of structural violence, the concepts of structural violence and total institutions, the tenets of Disability Critical Race Theory can be used as an analytical lens. This retrospective comparative case study does so by exploring similarities in the lived experiences of Black, Emotionally Disturbed males across metropolitan special education, juvenile justice, and medical systems. The findings demonstrate a “convergence of violence” in America’s juvenile justice, medical, and special education systems, collectively pushing K–12-aged participants into carceral sites, denying them voice and choice, and providing them with performative healthcare. Our study recommends that institutions designed to serve K–12-aged learners use cross-sector collaborations to meet holistic learner needs and mitigate pressures to engage in direct violence. Specifically, we offer the Whole School, Whole Community, Whole Child model as a national approach to increase access to healthcare providers, social services, and mental health services, as well as engaging community stakeholders critical to understanding the cultural context of learners’ lived experiences.
在美国的学校里,关于暴力的对话优先考虑直接暴力,而间接暴力几乎被忽视。当前的这种强调忽视了深深植根于美国社会、政治和经济制度中的结构性暴力,这些制度被有意地设计出来,使一些群体遭受不成比例的贫困、剥削和迫害。为了理解结构性暴力的机制,结构性暴力的概念和整体制度,残疾批判种族理论的原则可以作为一个分析的镜头。这个回顾性的比较案例研究通过探索大都市特殊教育、少年司法和医疗系统中黑人、情绪失调男性的生活经历的相似性来实现这一目标。调查结果表明,美国的少年司法、医疗和特殊教育系统存在“暴力趋同”现象,共同将k - 12岁的参与者推入拘留所,剥夺他们的发言权和选择权,并向他们提供表演性医疗保健。我们的研究建议,为k - 12岁的学习者服务的机构应利用跨部门合作来满足学习者的整体需求,并减轻直接暴力的压力。具体来说,我们提供“整个学校、整个社区、整个儿童”模式,作为一种全国性的方法,以增加获得医疗保健提供者、社会服务和心理健康服务的机会,并吸引对理解学习者生活经历的文化背景至关重要的社区利益相关者。
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引用次数: 0
Protecting Mothers against Domestic Violence in the Context of International Child Abduction: Between Golan v Saada and Brussels II-ter EU Regulation 在国际儿童绑架的背景下保护母亲免受家庭暴力:在戈兰诉萨达和布鲁塞尔二-欧盟法规之间
Q1 LAW Pub Date : 2023-09-19 DOI: 10.3390/laws12050079
Costanza Honorati
The need to protect victims of domestic violence is becoming increasingly more important in many States. The 1980 Hague Convention on international child abduction, which in principle requires the child’s return and apparently leaves little scope for protecting the child’s mother, is at times perceived as being at odds with this need. The 2022 US Supreme Court’s judgment in Golan v Saada is set to become a leading case with regard to abductions occurring against the backdrop of domestic violence. Although the USSC, out of necessity, considers the issue from the viewpoint of the US legal system, the impact of the decision will be felt well beyond the country’s borders. This paper will start by analysing the legal arguments developed by the USSC in finding that ameliorative measures are not required by the 1980 Hague Convention, but lie at the discretion of the courts, as well as the general principles laid down by the USSC to guide the exercise of that judicial discretion. Furthermore, the rationale for—discretionary, but still relevant—protective measures will be measured against the Brussels II-ter EU Regulation, which has established a different legal framework for EU Member States. In contrast to the position under pure Hague cases, the EU Regulation now clearly calls on the courts of the State of refuge to guarantee the child’s physical and psychological safety by directly adopting provisional measures, which will apply to the child upon return to the State of habitual residence and which are recognizable and directly enforceable in that Member State. It will be argued in this paper that ameliorative/protective measures offer a means for filling a gap that is increasingly being felt within public opinion, but that could undermine the efficacy of the 1980 Hague Convention. The best way of ensuring that domestic violence cases are not neglected, while at the same time remaining within the confines of the 1980 Hague Convention, would be to adopt expeditious, substantively well-defined, and effective protective measures.
在许多国家,保护家庭暴力受害者的需要正变得越来越重要。1980年关于国际儿童诱拐的《海牙公约》,原则上要求儿童返回,显然没有留下保护儿童母亲的余地,有时被认为与这种需要不一致。2022年美国最高法院对戈兰诉萨达案的判决将成为在家庭暴力背景下发生的绑架案件的主要案例。尽管USSC出于必要,从美国法律体系的角度考虑这个问题,但这一决定的影响将远远超出美国的国界。本文将首先分析USSC在发现1980年《海牙公约》不要求采取改进措施时所提出的法律论据,而在于法院的自由裁量权,以及USSC为指导行使司法自由裁量权而制定的一般原则。此外,自由裁量但仍然相关的保护措施的理由将根据布鲁塞尔II-ter欧盟法规进行衡量,该法规为欧盟成员国建立了不同的法律框架。与纯粹海牙案件下的立场相反,欧盟条例现在明确要求避难国的法院通过直接采取临时措施来保障儿童的身心安全,这些措施将在儿童返回惯常居住国时适用,并在该成员国可识别和直接执行。本文将指出,改善/保护措施提供了一种手段来填补公众舆论中日益感受到的空白,但这可能会破坏1980年《海牙公约》的效力。确保家庭暴力案件不被忽视,同时又保持在1980年《海牙公约》范围内的最佳办法是采取迅速、实质界定明确和有效的保护措施。
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引用次数: 0
The Interplay between the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Domestic Violence 1980年《国际诱拐儿童民事问题海牙公约》与家庭暴力的相互作用
Q1 LAW Pub Date : 2023-09-12 DOI: 10.3390/laws12050078
Katarina Trimmings, Onyója Momoh, Konstantina Kalaitsoglou
When a mother commits an international child abduction, even if she is fleeing domestic violence perpetrated by the left-behind father, she is bound to face complicated return proceedings under the 1980 Hague Child Abduction Convention. Such mothers are particularly vulnerable; apart from the costly, cross-border proceedings they face, if the court issues a return order, they risk returning to the abusive setting they fled from. This article explores avenues for safeguarding the protection of abducting mothers in return proceedings. The authors provide a range of potential avenues for improving the standing of the abducting mother fleeing domestic violence, including judicial and legislative interventions. The article delves deeper by considering the interplay between international child abduction law and international refugee law in cases involving domestic violence allegations. Particular emphasis is given to Article 20 and the growing instances of mothers defending return orders on asylum grounds pursuant to Article 20 and the flowing human rights implications. The authors point out a niche area for further research: the interplay between domestic violence and asylum claims.
当一名母亲犯下国际诱拐儿童的罪行时,即使她是为了逃离留守父亲实施的家庭暴力,根据1980年《海牙儿童诱拐公约》,她也必然面临复杂的遣返程序。这些母亲尤其脆弱;除了他们面临的昂贵的跨境诉讼之外,如果法院发出遣返令,他们就有可能回到他们逃离的虐待环境。本文探讨了在遣返诉讼中保障对被绑架母亲的保护的途径。作者提供了一系列可能的途径来改善逃离家庭暴力的绑架母亲的地位,包括司法和立法干预。本文通过考虑国际儿童诱拐法和国际难民法在涉及家庭暴力指控案件中的相互作用,进行了更深入的探讨。特别强调的是第20条和越来越多的母亲根据第20条以庇护为由为遣返令辩护的事例以及所涉人权问题。作者指出了一个值得进一步研究的领域:家庭暴力和庇护申请之间的相互作用。
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引用次数: 0
Brazil’s Experience with Recognition and Enforcement of Family Agreements in International Child Disputes 巴西在国际儿童纠纷中承认和执行家庭协议方面的经验
IF 1.2 Q1 LAW Pub Date : 2023-09-04 DOI: 10.3390/laws12050077
Lalisa Froeder Dittrich
Recently, there has been a greater focus on promoting amicable solutions in cross-border family disputes. Alternative dispute resolution methods such as mediation and conciliation have been used in Brazil to avoid lengthy legal proceedings and to resolve cases where concerns about the child’s situation after their return arise. Parties involved in child abduction disputes can feel motivated to reach an agreement when they can decide on child support, custody, and visitation rights before the child’s return. However, enforcing these agreements can be challenging. This article examines Brazil’s experience with international legal cooperation requests under the Convention of 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention), where the parties faced these issues whilst trying to resolve their conflicts under one or more of the Hague Conventions. The article uses a pragmatic and empirical approach to address difficulties in recognising and enforcing agreements and available alternatives. It concludes with a suggestion for more cooperation between central authorities and with the idea that although adhering to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children could improve the scenario in Brazil, a new international instrument would significantly enhance the resolution of cross-border disputes, especially for non-European states.
最近,人们更加注重促进友好解决跨国界家庭纠纷。巴西采用了调解和和解等替代性争端解决方法,以避免冗长的法律程序,并解决对儿童返回后的情况产生关切的案件。当涉及儿童绑架纠纷的各方能够在孩子返回之前决定孩子的抚养费、监护权和探视权时,他们就会有动力达成协议。然而,执行这些协议可能具有挑战性。本文考察了巴西在1980年《国际儿童诱拐民事方面公约》(《儿童诱拐公约》)下的国际法律合作请求方面的经验,当事人在试图根据一项或多项海牙公约解决其冲突时面临这些问题。本文采用务实和经验的方法来解决在承认和执行协议和可用替代方案方面的困难。报告最后建议中央当局加强合作,并认为虽然遵守《关于父母责任和保护儿童措施的管辖权、适用法律、承认、执行和合作公约》可以改善巴西的情况,但一项新的国际文书将大大加强对跨界争端的解决,特别是对非欧洲国家。
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引用次数: 0
The Interaction of the 1980 Child Abduction Convention with the Brussels II-ter Regulation: A Focus on the Regime of Recognition and Enforcement 1980年《儿童拐骗公约》与《布鲁塞尔第二条之三条例》的相互作用:对承认和执行制度的关注
IF 1.2 Q1 LAW Pub Date : 2023-08-28 DOI: 10.3390/laws12050076
Maria Caterina Baruffi
The paper addresses the interplay between the 1980 Child Abduction Convention and the Regulation (EU) 2019/1111, briefly presenting the main novelties contained in Chapter III of the Regulation devoted to international child abduction, and then focusing on the provisions concerning the peculiar regime of recognition and enforcement of decisions on this subject matter. Final considerations are drawn with a view to determining whether the Regulation is able to streamline the most critical issues arising from the practical application of the predecessor Regulation (EC) No 2201/2003 and, more broadly, to cope with evolving and challenging cases of child abduction.
本文讨论了1980年《儿童诱拐公约》与欧盟2019/1111条例之间的相互作用,简要介绍了该条例第三章中关于国际儿童诱拐的主要新颖之处,然后重点介绍了有关承认和执行有关该主题的决定的特殊制度的规定。最后的考虑是为了确定该规例是否能够简化在实际应用前规例(欧共体)第2201/2003号时所产生的最关键问题,以及更广泛地处理不断发展和具有挑战性的绑架儿童案件。
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引用次数: 0
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