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Habitual Residence: Review of Developments and Proposed Guidelines 惯常居所:发展检讨及建议指引
IF 1.2 Q3 Social Sciences Pub Date : 2023-07-11 DOI: 10.3390/laws12040062
R. Schuz
Habitual residence is a key concept in the scheme of the Hague Child Abduction Convention because it determines the applicability of the mandatory return mechanism. However, the concept is not defined, and over the years there have developed different approaches thereto. In recent years, there has been increasing doctrinal uniformity as a result of wide adoption of the hybrid approach. However, there are real disparities in the way in which this approach is applied by different judges and the question of habitual residence remains one of the most litigated issues under the Convention. This article reviews recent case law developments and explains the disparities. It then proceeds to propose guidelines that might assist in increasing uniformity and ensuring that findings of habitual residence promote the objectives of the Convention.
惯常居所是《海牙诱拐儿童公约》框架中的一个关键概念,它决定了强制遣返机制的适用性。然而,这个概念并没有定义,多年来已经发展出了不同的方法。近年来,由于广泛采用混合方法,教义一致性日益增加。但是,不同法官在适用这一办法的方式上确实存在差异,而惯常居住地问题仍然是《公约》规定的最易引起诉讼的问题之一。本文回顾了最近判例法的发展,并解释了这些差异。然后,委员会提出可能有助于增加统一性和确保惯常居所的调查结果促进《公约》目标的准则。
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引用次数: 0
Editorial Special Issue on “Migrants and Human Rights Protections” “移徙者与人权保障”社论特刊
IF 1.2 Q3 Social Sciences Pub Date : 2023-07-07 DOI: 10.3390/laws12040061
Sylvie Da Lomba
The idea for this Special Issue on ‘Human Rights Protection for Migrants’ was born out of a combination of frustration and scepticism in the face of International Human Rights Law’s enduring struggles to extend protections to non-nationals, but also out of hope in the light of (some) human rights bodies’ attempts to carve out ‘protective spaces’ for migrants against the backdrop of hostile migration laws and policies across the globe [...]
这期“移民人权保护”特刊的想法,是由于面对国际人权法持续努力将保护延伸至非本国国民的挫折与怀疑,以及(一些)人权机构试图在全球敌对移民法律与政策的背景下,为移民开辟“保护空间”的希望而产生的[…]
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引用次数: 0
Few Paths after a Long Journey: The Need for a Juvenile Immigration System 长途旅行后的几条路:建立青少年移民制度的必要性
IF 1.2 Q3 Social Sciences Pub Date : 2023-07-05 DOI: 10.3390/laws12040060
Steven M. Virgil
Thousands of unaccompanied children arrive at the U.S. border each year. In many cases, these children are fleeing harsh conditions in their home country in search for safety and family. The U.S. immigration system lacks an adequate response for these children, providing only two exceedingly difficult paths: asylum and the Special Immigrant Juvenile Status designation. While providing access to a path to citizenship over time, the system is arcane and adversarial. Moreover, through it all, these children lack a right to an advocate who can protect their interest or at a minimum advise the immigration court of how to serve the child’s best interests. This article explores issues surrounding unaccompanied children in the U.S. immigration system and suggests the need for an independent juvenile immigration justice system similar to the Federal Juvenile Criminal Justice System.
每年都有成千上万无人陪伴的儿童抵达美国边境。在许多情况下,这些儿童逃离祖国的恶劣条件,寻找安全和家人。美国移民系统缺乏对这些儿童的充分回应,只提供了两条极其困难的道路:庇护和指定特殊移民青少年身份。虽然随着时间的推移,这一制度提供了获得公民身份的途径,但它是神秘而敌对的。此外,在这一切中,这些儿童缺乏获得辩护人的权利,辩护人可以保护他们的利益,或者至少向移民法院建议如何为儿童的最大利益服务。本文探讨了美国移民系统中无人陪伴儿童的问题,并提出了建立一个类似于联邦青少年刑事司法系统的独立青少年移民司法系统的必要性。
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引用次数: 0
Judicial Review of Mufti Decisions Applying Islamic Family Law in Greece 对Mufti在希腊适用伊斯兰家庭法的裁决的司法审查
IF 1.2 Q3 Social Sciences Pub Date : 2023-06-15 DOI: 10.3390/laws12030058
Nikos Koumoutzis
Greece is a unique example of a country member of the Council of Europe that allows for the application of Sharia law by the Mufti on a select part of its citizenry: the members of the Muslim minority in Western Thrace (situated in NE Greece). However, to produce their effects, Mufti decisions need to undergo review and to be declared enforceable by the civil court. The aim of this article is to explore the relevant legal framework arranged in law 4964/2022 and presidential decree 52/2019, whereby the details of such a judicial review are set out. In particular, this article considers the prerequisite of the exequatur to religious adjudication, and then, it goes through all of the levels over which the said review extends, bringing progressively into focus the review of the scope of jurisdiction, the review of compatibility with the Constitution and the European Convention of Human Rights, and the review of some additional issues raised specifically by presidential decree 52/2019 over and above the points just mentioned. A final remark follows in connection with possible errors committed in religious adjudication—errors of law or fact—which remain beyond the reach of the review.
希腊是欧洲委员会成员国的一个独特例子,该成员国允许穆夫提对其选定的部分公民适用伊斯兰教法:西色雷斯(位于希腊东北部)的穆斯林少数民族成员。然而,为了产生效果,Mufti的决定需要经过审查,并由民事法院宣布可执行。本文的目的是探讨第4964/2022号法律和第52/2019号总统令中安排的相关法律框架,其中列出了此类司法审查的细节。特别是,本条考虑了宗教裁决的先决条件,然后,它涵盖了上述审查所涵盖的所有层面,逐步集中审查管辖范围、审查是否符合《宪法》和《欧洲人权公约》,以及对第52/2019号总统令在上述要点之外特别提出的一些其他问题的审查。最后一句话是关于宗教裁决中可能犯下的错误——法律或事实错误——这些错误仍然超出了审查的范围。
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引用次数: 1
Practitioner Rehabilitation following Professional Misconduct: A Common Practice Now in Need of a Theory? 职业不端行为后的从业者康复:一个需要理论的普遍做法?
IF 1.2 Q3 Social Sciences Pub Date : 2023-06-15 DOI: 10.3390/laws12030059
L. Surgenor, K. Diesfeld, M. Rychert
Theories of rehabilitation have long been articulated in health and criminal justice contexts, driving rehabilitation practices in each area. In this article, several prominent theories are described to illustrate how their core assumptions aim to facilitate recovery and reduce relapse or reoffending. Professional disciplinary bodies are also often compelled by law or regulation to attend to practitioners’ rehabilitation after professional misconduct, with similar aims to restore the practitioner to safe practice. Yet, no rehabilitation theory has been articulated in this context despite professional rehabilitation being distinct from other settings. We propose that the current absence of a coherent theory is problematic, leaving professional disciplinary bodies to ‘borrow’ assumptions from elsewhere. Since rehabilitation penalties are frequently made by professional disciplinary bodies, we review several theories from health and justice contexts and highlight elements that may be useful in developing professional misconduct rehabilitation theory. This includes proposing methodological approaches for empirical research to progress this.
康复理论长期以来一直在健康和刑事司法背景下阐述,推动了每个领域的康复实践。在这篇文章中,描述了几个著名的理论,以说明他们的核心假设如何旨在促进康复,减少复发或再犯。专业纪律机构也经常受到法律或法规的强制,在执业人员出现职业不端行为后,负责其康复工作,以使执业人员恢复安全执业。然而,尽管专业康复与其他环境不同,但没有任何康复理论在这方面得到阐述。我们认为,目前缺乏连贯的理论是有问题的,这让专业学科机构不得不“借鉴”其他地方的假设。由于康复处罚经常由专业纪律机构做出,我们回顾了健康和司法背景下的几种理论,并强调了可能有助于发展职业不当行为康复理论的因素。这包括提出实证研究的方法论方法来推进这一进程。
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引用次数: 0
Protecting the Human Rights of Refugees in Camps in Thailand: The Complementary Role of International Law on Indigenous Peoples 保护泰国难民营中难民的人权:国际法对土著人民的补充作用
IF 1.2 Q3 Social Sciences Pub Date : 2023-06-14 DOI: 10.3390/laws12030057
Loi Thi Ngoc Nguyen
This paper investigates whether and how International Law on Indigenous Peoples (ILIP) can complement protections granted under International Refugee Law (IRL) and International Human Rights Law (IHRL) to refugees in camps in Thailand. Presently, there are over 90,000 refugees from Myanmar in Thailand, confined to nine camps along the Thailand–Myanmar border. These refugees belong to different ethnic minority groups, but the vast majority are Karen—Indigenous Peoples from the Thailand–Myanmar border regions. They have fled to Thailand due to persecution by Myanmar authorities and segments of the Myanmar population. To date, Thailand has refused to become a party to the 1951 Refugee Convention or its 1967 Protocol. The country has failed to develop an asylum system and its laws continue to regard refugees as ‘illegal migrants’. These refugees have been surviving in conditions of profound rightlessness. I posit that ILIP has a critical role to play in addressing the protection gaps and limitations in IRL and IHRL. In particular, the ILIP system of collective rights is vital in recognising the specific needs of refugees who are indigenous peoples. ILIP therefore provides a potent tool to make IRL and IHRL more responsive to the protection needs of indigenous refugees.
本文探讨了关于土著人民的国际法(ILIP)是否以及如何补充国际难民法(IRL)和国际人权法(IHRL)对泰国难民营难民的保护。目前,泰国境内有9万多名缅甸难民,被限制在泰缅边境的9个难民营内。这些难民属于不同的少数民族,但绝大多数是来自泰缅边境地区的克伦族土著人民。由于缅甸当局和部分缅甸人口的迫害,他们逃往泰国。迄今为止,泰国拒绝成为1951年《难民公约》或其1967年《议定书》的缔约国。该国未能建立庇护制度,其法律继续将难民视为“非法移民”。这些难民一直在极度不公平的条件下生存。我认为,在解决IRL和IHRL中的保护差距和限制方面,ILIP可以发挥关键作用。特别是,ILIP集体权利制度对于承认土著难民的特殊需要至关重要。因此,国际难民援助方案提供了一种强有力的工具,使国际法和人权法对土著难民的保护需要作出更积极的反应。
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引用次数: 1
A Critical Analysis of the Rights and Obligations of the Manager of a Limited Liability Company: Managerial Legislative Basis 有限责任公司经理权利义务的批判性分析:管理立法基础
IF 1.2 Q3 Social Sciences Pub Date : 2023-06-12 DOI: 10.3390/laws12030056
T. Peráček, Michal Kaššaj
The rights and obligations of an executive as a top manager of a limited liability company seem to be a long-settled question. However, the opposite is true. We were particularly interested in the question of the rights and obligations of the manager as a statutory body of the most widespread type of business company. A very important issue is the definition of the relationship between the limited liability company and the manager. The reason for this is the fact that it is a business–legal relationship and the protection provided to the executive in relation to the business company is based only on their mutual contractual basis. In addition to the examination of managerial knowledge and skills, we focused primarily on a critical analysis of the legal definition of the rights and obligations of an executive and their responsibility towards a limited liability company. As part of our research, we analyzed extensive jurisprudence, which completed our understanding of the concept of an executive and also defined the framework of not only their actions, but especially their rights and obligations. To achieve our goal, we used several scientific methods designed for the study of law, such as analysis, synthesis, comparison, deduction, and description. We critically evaluated the results of our research and compared the development of Slovak and Czech jurisprudence in the context of its influence on the investigated issue. At the same time, we answered the research question of whether legislative intervention is necessary for the already existing rights and obligations of a manager in relation to their limited liability company. This analysis of the rights and obligations of the manager of a limited liability company has several implications for both managers and companies as a whole, such as managerial autonomy, accountability, responsibility, and the balance of power. The research findings highlighted the significant decision making authority granted to managers. The obligations identified in the analysis emphasized the need for managers to act responsibly and be accountable for their actions. The rights and obligations of managers need to be balanced with the interests of other stakeholders, particularly the company’s members. In conclusion, the critical analysis of the rights and obligations of the manager of a limited liability company, based on the managerial legislative basis, revealed that managers possess decision making authority, profit distribution rights, limited liability protection, and entitlement to compensation. However, they are also obligated to fulfill fiduciary duties, comply with laws and regulations, maintain proper records, and exercise due care. The research underscored the significance of managerial autonomy, accountability, and a balanced exercise of power in a limited liability company. By understanding and adhering to their rights and obligations, managers can effectively navigate their roles while contributing to the suc
作为有限责任公司的最高管理者,高管的权利和义务似乎是一个长期悬而未决的问题。然而,情况恰恰相反。作为最广泛的商业公司类型的法定机构,我们对经理的权利和义务问题特别感兴趣。一个非常重要的问题是有限责任公司和经理之间关系的定义。原因是这是一种商业-法律关系,为高管提供的与商业公司有关的保护仅基于他们之间的相互合同基础。除了对管理知识和技能的审查外,我们主要关注对高管的权利和义务及其对有限责任公司的责任的法律定义的批判性分析。作为研究的一部分,我们分析了大量的判例,这些判例完成了我们对高管概念的理解,不仅定义了高管行为的框架,还定义了高管权利和义务的框架。为了实现我们的目标,我们使用了几种为研究法律而设计的科学方法,如分析、综合、比较、推导和描述。我们批判性地评估了我们的研究结果,并比较了斯洛伐克和捷克法学在其对所调查问题的影响方面的发展。同时,我们回答了一个研究问题,即管理者对其有限责任公司已经存在的权利和义务是否需要立法干预。这种对有限责任公司经理的权利和义务的分析对经理和整个公司都有一些影响,例如管理自主权、问责制、责任和权力平衡。研究结果强调了授予管理者的重要决策权。分析中确定的义务强调,管理人员需要负责任地行事,并对自己的行为负责。管理者的权利和义务需要与其他利益相关者,特别是公司成员的利益相平衡。总之,基于管理立法基础对有限责任公司经理的权利义务进行批判性分析,揭示了经理具有决策权、利润分配权、有限责任保护权和赔偿权。然而,他们也有义务履行信托义务,遵守法律法规,保持适当的记录,并行使应有的谨慎。该研究强调了有限责任公司管理自主权、问责制和权力均衡行使的重要性。通过理解和遵守自己的权利和义务,管理者可以有效地驾驭自己的角色,同时为公司的成功和可持续发展做出贡献
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引用次数: 3
The Human Right to a Fair Trial in Competition Law Enforcement Procedures: A Rising Issue in Indonesian Experiences 竞争执法程序中公平审判的人权:印尼经验中一个日益突出的问题
IF 1.2 Q3 Social Sciences Pub Date : 2023-06-12 DOI: 10.3390/laws12030055
S. Anisah, Sahid Hadi
The Indonesian Competition Supervisory Commission (ICSC) has the authority to investigate, prosecute, adjudicate, decide, and impose sanctions on business actors for violating Indonesian competition law. It also has the authority to establish procedural laws for the competition law enforcement procedures within its institution. This single role raises various issues in the current context, including the right to a fair trial and checks and balances. This article seeks to define the position of human rights, particularly the right to a fair trial, in competition law enforcement procedures. The result is that competition law enforcement procedures are subordinate to human rights, so they must be exercised in compliance with human rights standards, particularly the right to a fair trial. Based on the experience in Indonesia, this study finds that the ICSC’s single role is incompatible with human rights commitments in fair competition law enforcement procedures. As an alternative solution, this article encourages a modification and adjustment based on human rights commitments and checks and balances mechanism by limiting one of the ICSC’s authorities and broadening the interference of the Supreme Court in enforcing Indonesian competition law at the ICSC level.
印度尼西亚竞争监督委员会(ICSC)有权对违反印度尼西亚竞争法的商业行为者进行调查、起诉、裁决、决定和制裁。它还有权为其机构内的竞争执法程序制定程序法。在当前背景下,这一单一角色引发了各种问题,包括公平审判和制衡的权利。本文试图界定人权,特别是公平审判权在竞争法执行程序中的地位。其结果是,竞争法的执法程序从属于人权,因此必须按照人权标准,特别是公平审判的权利来行使这些程序。根据印度尼西亚的经验,本研究发现公务员制度委员会的单一作用与公平竞争执法程序中的人权承诺不相容。作为另一种解决办法,该条鼓励根据人权承诺和制衡机制进行修改和调整,限制公务员制度委员会的一项权力,扩大最高法院在公务员制度委员会一级执行印度尼西亚竞争法的干预。
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引用次数: 0
The U.S. Experience in Drafting Guidelines for Judicial Interviews of Children and Its Translation to Hague Abduction Convention Return Proceedings Globally 美国制定儿童司法面谈准则的经验及其在海牙诱拐公约中的翻译
IF 1.2 Q3 Social Sciences Pub Date : 2023-06-09 DOI: 10.3390/laws12030054
Melissa A. Kucinski
This article will focus on judicial interviews of children, in chambers, including in Hague Abduction Convention cases; the potential promise and pitfalls of conducting such interviews; and how the U.S. experience provides an excellent template for future discussions and work on creating a soft law instrument on this important information-gathering tool.
本文将集中讨论在分庭对儿童的司法面谈,包括在《海牙绑架公约》案件中;进行此类访谈的潜在希望和陷阱;以及美国的经验如何为今后关于这一重要信息收集工具的讨论和制定软法律文书的工作提供了一个极好的模板。
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引用次数: 0
Milestones and Current Dilemmas: Evaluation of Sentencing Standardization for Illegal Possession of Drugs in China 里程碑与困境:我国非法持有毒品量刑规范化评价
IF 1.2 Q3 Social Sciences Pub Date : 2023-06-07 DOI: 10.3390/laws12030053
Jia Wu, Yang Xia, Apei Song
It has been more than ten years since the nationwide sentencing standardization reform was implemented in China to solve the widespread problem of uneven sentencing in criminal justice. A statistical analysis of 1595 written judgments of illegal possession of drugs showed that the reform of sentencing for the standardization amount-based crimes has achieved remarkable results, and judges’ discretion has been highly normative and consistent. Under the same criminal circumstances, the degree of consistency between the amount involved in the crime and imprisonment has significantly increased, which is more in line with the standards of formal justice. However, the effect of the sentencing standardization reform declined as the amount involved in the crime increased. This exposes the shortcomings of the standardized sentencing model when considering multiple crimes; these include confusion between the amount and circumstances of a crime, the imbalance between crime and punishment, and the application of discretionary circumstances in sentencing depending on the amount involved in the crime. Therefore, it is necessary to attach more importance to the evaluation of the legitimacy of the sentencing range established by criminal law in subsequent sentencing reforms and to further refine and perfect the standardized sentencing mode, with a shift from formal justice to justice in form and substance.
为解决刑事司法中普遍存在的量刑不均问题,我国在全国范围内推行量刑规范化改革已有十多年。对1595份非法持有毒品的判决书进行统计分析表明,规范数量型犯罪量刑改革成效显著,法官自由裁量权具有高度规范性和一致性。在同样的犯罪情节下,犯罪金额与监禁的一致程度显著提高,更符合正式司法的标准。然而,量刑规范化改革的效果随着犯罪金额的增加而下降。这暴露了标准化量刑模式在考虑多项犯罪时的不足;其中包括犯罪数额与情节的混淆,罪与罚的不平衡,以及根据犯罪数额在量刑时适用酌定情节。因此,在随后的量刑改革中,有必要更加重视对刑法确立的量刑幅度合法性的评估,并进一步细化和完善规范的量刑模式,从形式正义转向形式正义和实质正义。
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引用次数: 0
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