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‘Not My Employee, Not My Liability’ “不是我的员工,不是我的责任”
Pub Date : 2021-03-31 DOI: 10.5750/DLJ.V32I1.1917
C. D. Silva
In April 2020, the Supreme Court in WM Morrison Supermarkets plc v Various Claimants [2020] and Barclays Bank plc v Various Claimants [2020] overturned the decisions of the Court of Appeal in applying the law regarding vicarious liability of employees and others (and deciding in both cases that the defendant companies were not liable for the acts in question). The scope of responsibilities which the employment relationship brings, together with an awareness among many businesses of the classification worker, along with the more familiar employed/ self-employed status, makes an examination of the outcomes and potential impact of these cases of wide, practical interest for those running businesses, large or small. The review concluded that there had been no dramatic change in the law but that the cases provide a measure of comfort to employers in something of a common-sense view being taken as to the scope of vicarious liability. They also add to the body of case law, helping to ensure that future issues can more clearly be reasoned out of court, with the detailed steer on the application of legal principles which a Supreme Court judgment provides.
2020年4月,最高法院在WM Morrison Supermarkets plc诉各种索赔人一案[2020]和Barclays Bank plc诉各种索赔人一案[2020]中推翻了上诉法院在适用有关雇员和其他人替代责任的法律方面的决定(并在这两起案件中裁定被告公司对所涉行为不承担责任)。雇佣关系带来的责任范围,加上许多企业对分类工作者的认识,以及更熟悉的受雇/自雇状态,对这些案例的结果和潜在影响进行了检查,这些案例对那些经营企业的人来说,无论大小,都具有广泛的实际利益。审查得出的结论是,法律没有发生重大变化,但从某种关于替代责任范围的常见性观点来看,这些案例为雇主提供了一定程度的安慰。它们还增加了判例法的主体,有助于确保未来的问题可以更清楚地在法庭外进行推理,并详细指导最高法院判决所提供的法律原则的适用。
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引用次数: 0
Owens v Owens: A Most Curious Case 欧文斯诉欧文斯:一个最奇怪的案子
Pub Date : 2021-03-31 DOI: 10.5750/DLJ.V32I1.1916
F. Burton
The combination of the long Brexit delays, largely unwelcome General Election, a change of leadership and Cabinet composition in the Conservative government and finally the coronavirus has between them resulted in a long pause in expected reforming legislation which is much needed in Family Law, including the initial loss of the Divorce Dissolution and Separation Bill 2019, generated in 2019 by the failure of Mrs Owens’ ’ Supreme Court appeal in the now notorious case of Owens v Owens. While this was immediately hailed by the media as justification for urgent reform of the Law of Divorce in England and Wales – on the grounds that English law was almost alone in modern liberal jurisdictions in lacking a No Fault Divorce regime – clearly this has now been overtaken by subsequent events. While it may be factually accurate that England and Wales does not have such a regime for dissolution of marriage without fault and by consent (at least without satisfying the inconvenient condition of waiting for the two-year delay necessary for a decree on the basis of two years of separation and consent), and perhaps should have one for the reason stated, the failed Owens appeal has absolutely no jurisprudential connection with any urgency for reform of the law in order to secure such a decree at all. This is because the legal profession has been effectively obtaining divorces under the present law for over 40 years, and, notwithstanding Owens, has been continuing to do so since 2018, albeit with the caveat that drafting must be undertaken with extreme care to be sure to avoid a repeated debacle. Nevertheless, on account of the age of the present statute, legal, political and social theorists of course have strong arguments for a No Fault addition to the existing Matrimonial Causes Act 1973 or even for replacing the existing provisions of that statute altogether. However this is because the present statute is itself a re-enactment and consolidation of the original Divorce Reform Act 1969 which led the post-WWII reforms creating our current Law of Divorce, so is well past its ‘sell-by date’, but not because it does not work in modern times. If anything, and especially with the assistance of s76 of the Serious Crime Act 2015, s 1(2)(b) of the 1973 Act works entirely consistently with present philosophy, that is, as marriage is a partnership of equals there is no place for any form of domestic abuse within it. In fact Mrs Owens thus could (and arguably should) have obtained her divorce on the existing basis, pursuant to s 1(2)(b) of the 1973 Act, namely on that of her husband’s ‘behaviour’. Thus, as indeed hinted by Lady Hale in her paragraph 50 of the Supreme Court judgment, which she added to the agreed text set by Lord Wilson, there was clear evidence of the alleged ‘authoritarian, demeaning and humiliating conduct over a period of time’, which in law was capable of founding a decree, and there was existing case law supporting this in the case of Livingstone-S
英国脱欧的长期拖延、基本上不受欢迎的大选、保守党政府领导层和内阁组成的变化,以及最后的冠状病毒,这些因素加在一起,导致了家庭法急需的预期改革立法的长期停顿,包括2019年《离婚解散和分居法案》的最初失败,这是由于欧文斯夫人在现在臭名昭著的欧文斯诉欧文斯案中向最高法院上诉失败而导致的。虽然这立即被媒体欢呼为英格兰和威尔士离婚法紧急改革的理由——理由是英格兰法在现代自由司法管辖区几乎是唯一一个缺乏无过错离婚制度的国家——显然,这已经被随后的事件所取代。虽然英格兰和威尔士没有这样的制度,可以在没有过错和同意的情况下解除婚姻(至少不满足在两年分居和同意的基础上等待两年的不便条件),但实际上可能是准确的,也许应该有一个,因为上面所说的原因,失败的欧文斯上诉绝对没有与任何迫切需要改革法律以确保这样一项法令的法理联系。这是因为40多年来,法律行业一直在根据现行法律有效地办理离婚,而且尽管有欧文斯,但自2018年以来,法律行业一直在继续这样做,尽管有一个警告,即必须非常小心地起草,以确保避免重复的失败。然而,由于现行法规的年代久远,法律,政治和社会理论家当然有强有力的论据支持在现有的《1973年婚姻原因法》中增加无过错条款,甚至完全取代该法规的现有条款。然而,这是因为目前的法规本身是1969年离婚改革法的重新制定和巩固,该法案领导了二战后的改革,创造了我们目前的离婚法,所以已经超过了它的“销售日期”,但不是因为它在现代不起作用。如果有什么的话,特别是在《2015年严重犯罪法》第76条的帮助下,1973年法案第1(2)(b)条完全符合当前的理念,即婚姻是平等的伙伴关系,在婚姻中没有任何形式的家庭虐待。事实上,欧文斯夫人因此可以(也可以说应该)根据1973年法案第1(2)(b)条,即根据她丈夫的“行为”,在现有的基础上获得离婚。因此,正如黑尔夫人在最高法院判决的第50段所暗示的那样,她将其添加到威尔逊勋爵制定的商定文本中,有明确的证据表明所谓的“在一段时间内的专制,贬低和羞辱行为”,这在法律上是能够建立法令的,并且在Livingstone-Stallard诉Livingstone-Stallard案中有现有的判例法支持这一点。因此,在她的第53段中,她确定了在她看来“允许上诉并将案件发回再次审理的正确处置方式”——然而,这在特殊情况下是不可能被采纳的,因为包括上诉人欧文斯夫人在内的任何人都不希望再次经历这样的审判,尤其是她的律师菲利普·马歇尔(Philip Marshall QC)都“对这样的前景感到恐惧”。因此,在她的第54段中,黑尔夫人得出结论,她“不情愿地被说服,认为这一上诉应该被驳回”——然而,这一结论并不妨碍她对下文案件的行为进行一些直率的评论,任何分析都只能同意这些评论。欧文斯诉欧文斯案到底发生了什么?在伦敦市中心的家事法院,上诉法院和最高法院?
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引用次数: 0
What Are the Legal Mechanisms for Seeking Solutions to Disparities in the Delivery of Care in the NHS and Where Does Liability Lie? 什么是寻求解决差距的法律机制,在NHS提供护理和责任在哪里?
Pub Date : 2021-03-31 DOI: 10.5750/DLJ.V32I1.1918
A. Farrukh
This review deals with the potential role of Commissions and Inquiries into delivering a just service to patients from ethnic minorities. It takes as an example the experience of people with inflammatory bowel disease and the National Health Service in the United Kingdom. Although there are many legal safeguards, the avenues open to groups of patients who experience discrimination, are limited and generally ineffective. Government inspired responses such as Commissions and Inquiries are inadequate and not fit for purpose.
本审查涉及委员会和调查委员会在向少数民族患者提供公正服务方面的潜在作用。它以炎症性肠病患者的经历和英国国民健康服务为例。虽然有许多法律保障,但对遭受歧视的患者群体开放的途径有限,而且通常无效。政府鼓励的反应,如委员会和调查是不充分的,不适合目的。
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引用次数: 0
Apologies and the Legacy of an Unlawful Application of Terra Nullius in Terra Australis “无主地”在“南地”的非法适用及其遗留问题
Pub Date : 2021-03-31 DOI: 10.5750/DLJ.V32I1.1922
Stephen Pitt-Walker
The use of the legal fiction, terra nullius, as it was erroneously applied to Terra Australis, Australia, as a legal doctrine, supported the British colonial power’s right to settle that territory. Since then, many unspoken (as well as acknowledged) acts of structural and direct violence have been perpetrated against the First Nations population in Australia via the imposition, and later ‘reception’, of the legal system and laws of England, as well as the dominant socio-political system, that represented the British Crown.
法律虚构的无主地(terra nullius)被错误地应用于澳大利亚的南地(terra Australis),作为一种法律原则,支持了英国殖民大国在该领土上定居的权利。从那时起,通过强加和后来“接受”英格兰的法律体系和法律,以及代表英国王室的主流社会政治体系,澳大利亚原住民遭受了许多不言而喻的(以及公认的)结构性和直接暴力行为。
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引用次数: 0
Beneficial Ownership of the Family Home 家庭住宅的实益拥有权
Pub Date : 2021-03-31 DOI: 10.5750/DLJ.V32I1.1920
M. Pawlowski, James P. Brown
The aim of this article is to review and critically analyse the English law relating to common intention constructive trusts in the context of the family home. In particular, it seeks to show how the English courts have addressed the question of establishing and quantifying the parties’ beneficial shares in both sole and joint ownership cases. The writers also seek to compare the English approach with the way in which such questions have been answered by the Australian courts. The primary purpose of this comparison is to consider what lessons (if any) can be learnt from the Australian model.
本文的目的是回顾和批判性地分析在家庭家庭背景下有关共同意图推定信托的英国法律。特别是,它试图展示英国法院如何在单独所有权和共同所有权案件中解决确定和量化各方受益份额的问题。作者还试图将英国的做法与澳大利亚法院回答此类问题的方式进行比较。这种比较的主要目的是考虑可以从澳大利亚模式中学到什么教训(如果有的话)。
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引用次数: 0
Legal Education and the Reproduction of Hierarchy: A Contemporary Asian Reading of a Seminal Text 法律教育与等级制度的再生产:一篇开创性文本的当代亚洲解读
Pub Date : 2021-03-31 DOI: 10.5750/DLJ.V32I1.1919
Andra le Roux-Kemp
Law schools are peculiar places occupied by, dependent on, associated with, and exerting influence on a myriad of institutions and stakeholders. From law students’ efforts at mastering the allusive skill of legal reasoning to the challenges both tenured and untenured academic staff face in the neoliberalist higher education model where the legal profession and the consumers of the law school product exert increasing – and sometimes even impossible – demands, law schools and its populace have always been contested, hierarchical and image-conscious spaces. Indeed, as Ralph Shain noted in the Journal of Ideology in 2012, “[a]nyone who has suffered through law school would be grateful to have a good polemic against the institution”. This article offers such a polemic against legal education in the Hong Kong Special Administrative Region. Over a period of four years, a selection of postgraduate law students from one of the (three) higher education institutions responsible for legal education and training in Hong Kong were asked to reflect upon their legal studies and future roles as legal professionals with reference to the 1983 self-published pamphlet by Duncan Kennedy, entitled “Legal Education and the Reproduction of Hierarchy: A Polemic Against the System”. Kennedy’s essay offered a critical analysis of the role of legal education in American social life at that time, and the manner in which it reproduced hierarchy in law, legal education, the legal profession, as well as in society generally. The narratives informing this article show that almost 40 years subsequent the publication of Kennedy’s text, and in a jurisdiction with an altogether different social context and facing its own political turmoil and civil rights’ aspirations, many parallels can be drawn with what Kennedy had observed in 1983. Part I of this article sets the scene with a detailed overview of the legal education and training landscape of the Hong Kong Special Administrative Region from a legal-historical perspective to date. The discussion and analysis * Associate Professor in Law, Lincoln Law School, University of Lincoln (United Kingdom); Member of the International Centre for Higher Education Management (ICHEM), University of Bath (United Kingdom). E-mail: alerouxkemp@lincoln.ac.uk
法学院是一个特殊的地方,它被无数的机构和利益相关者占据、依赖、联系并施加影响。在新自由主义高等教育模式下,法律职业和法学院产品的消费者提出了越来越多的——有时甚至是不可能的——要求,从法学院学生努力掌握法律推理的暗示技巧,到终身教职和非终身教职的学术人员面临的挑战,法学院及其民众一直是有争议的、等级森严的、有形象意识的空间。事实上,正如拉尔夫•沙恩(Ralph Shain) 2012年在《意识形态杂志》(Journal of Ideology)上所指出的那样,“任何在法学院受过苦的人,如果能对这一制度进行一次有力的辩论,都会很感激”。本文对香港特别行政区的法律教育进行了这样的辩论。在四年的时间里,我们从本港三所负责法律教育和培训的高等院校中挑选了一些法律研究生,请他们参考Duncan Kennedy于1983年自费出版的小册子《法律教育与等级制度的再现:对现行制度的辩论》,反思自己的法律学习和未来作为法律专业人士的角色。肯尼迪的文章批判性地分析了当时法律教育在美国社会生活中的作用,以及它在法律、法律教育、法律职业以及整个社会中再现等级制度的方式。这篇文章的叙述表明,在肯尼迪的文章发表近40年后,在一个完全不同的社会背景下,在一个面临着自己的政治动荡和民权愿望的司法管辖区,可以得出许多与肯尼迪在1983年所观察到的相似之处。本文第一部分从法律历史的角度,对香港特别行政区至今的法律教育和培训情况进行了详细的概述。*英国林肯大学林肯法学院法学副教授;英国巴斯大学国际高等教育管理中心(ICHEM)成员。电子邮件:alerouxkemp@lincoln.ac.uk
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引用次数: 0
THE NIGERIAN SUPREME COURT AND THE POLITICAL QUESTION DOCTRINE 尼日利亚最高法院与政治问题原则
Pub Date : 2020-01-03 DOI: 10.2139/ssrn.3516899
Ekokoi Solomon
This paper examines the attitude of the Supreme Court of Nigeria towards the political question doctrine. It interrogates the decisions of the Court in selected landmark cases involving political questions since the First Republic to the Fourth Republic which commenced in 1999. The paper identifies three core approaches espoused by the Court in cases involving political questions – the deference approach, the necessity approach and the avoidance approach. This paper argues that in a constitutional democracy, it is inevitable – considering that the Court is both a political and a legal institution – that the Court, like in other jurisdictions such as Germany, India, South Africa and the United States, will be called upon to adjudicate cases involving political questions. As such, the paper recommends that the Court openly asserts the ‘politicality’ of its decisions, whether they are predicated on the need to defer to the political branches, exigency/necessity or to avoid the political questions brought before it.
本文考察了尼日利亚最高法院对政治问题主义的态度。它询问法院对自1999年开始的第一共和国至第四共和国以来涉及政治问题的若干具有里程碑意义的案件的判决。该文件确定了法院在涉及政治问题的案件中支持的三种核心办法- -尊重办法、必要性办法和回避办法。本文认为,在一个宪政民主国家,考虑到法院既是一个政治机构又是一个法律机构,法院将不可避免地象在德国、印度、南非和美国等其他司法管辖区一样,被要求裁决涉及政治问题的案件。因此,该文件建议法院公开申明其决定的“政治性”,无论这些决定是基于服从政治部门的需要、紧急/必要性还是为了避免提交给它的政治问题。
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引用次数: 1
EVALUATION OF THE RULE OF LAW AS A PRE-REQISITE TO THE RIGHT TO DEVELOPMENT IN AFRICA 评价法治作为非洲发展权的先决条件
Pub Date : 2020-01-03 DOI: 10.5750/DLJ.V31I1.1717
A. Joshua, Simisola Akintoye
Africa faces myriads of challenges one of which is the need for development; as a result, development is a critical issue in Africa. The apparent disparity and inequity of the global economic system in the aspect of international economic development, conspicuous particularly on the Africa continent has dominated academic discourses since the era of the decolonization of the undeveloped countries. One of the direct consequences of this was the evolution of right-based approach to development agenda which have implications for democracy and the rule of law; two elements that have suffered serious setbacks in almost all African countries.  This paper examines the extent to which the effective enforcement of the rule of law in African countries can aid the human rights based approach to development in order to deliver meaningful improvements to the African development crisis. It starts by highlighting the evolution of the rights based approach to development agenda with a view to clarifying the meanings of the “right to development”. It further examines the import of the doctrine of rule of law, its relationship to the rights-based approach to development agenda and the theoretical underpinnings of both concepts. The paper continues to assess the position of the rule of law in African countries now, and its implications for the realization of the Right to Development (RTD), domestically (in each African country), regionally (and possibly sub-regionally).It is the argument of this paper that although, the African human rights-system, particularly the African Charter of Human and People’s Rights was the first enforceable document to contain the right to development, thereby making the African continent to be the first in conceiving it, yet one of the major reasons why development has eluded African over a considerable period of time until now is abysmal failure of the Rule of Law.
非洲面临着无数的挑战,其中之一就是发展的需要;因此,发展是非洲的一个关键问题。自不发达国家非殖民化时代以来,全球经济制度在国际经济发展方面,特别是在非洲大陆,明显的不平等和不平等一直主导着学术论述。其直接后果之一是对发展议程采取以权利为基础的做法,这对民主和法治有影响;这两个因素在几乎所有非洲国家都遭受了严重挫折。本文考察了非洲国家有效实施法治在多大程度上有助于以人权为基础的发展方针,从而为非洲发展危机带来有意义的改善。它首先强调了以权利为基础的发展议程方针的演变,以期澄清“发展权”的含义。它进一步审查了法治理论的重要性,它与以权利为基础的发展议程方法的关系,以及这两个概念的理论基础。本文继续评估了法治在非洲国家目前的地位,以及法治对实现国内(每个非洲国家)、区域(可能还有次区域)发展权的影响。本文认为,虽然非洲人权制度,特别是《非洲人权和人民权利宪章》是第一个包含发展权的可执行文件,从而使非洲大陆成为第一个构思发展权的大陆,但非洲在相当长的一段时间内直到现在都没有发展的主要原因之一是法治的严重失败。
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引用次数: 2
‘Show Me Your Horse and I Will Tell You Who You Are’: Brexit, A Chance to Acknowledge Animal Sentience in Law “让我看看你的马,我就告诉你你是谁”:英国脱欧,一个在法律上承认动物感知能力的机会
Pub Date : 2020-01-03 DOI: 10.5750/DLJ.V31I1.1791
Jessica L. Horton, Jonathan Merritt
This article is written to explore the current position of the concept of animal sentience in UK animal welfare law. This is based on research carried out since 2017 but there have been political and legal developments which bring the issue to the fore now, chiefly these are concerned with Brexit and the EU definition of animal sentience contained in the Lisbon Treaty. At time of writing, however, there could scarcely be less certainty about the likely final outcome of the United Kingdom’s endeavours to exit the European Union.
本文旨在探讨动物感知概念在英国动物福利法中的现状。这是基于自2017年以来进行的研究,但政治和法律的发展使这个问题浮出水面,主要与英国脱欧和欧盟《里斯本条约》中对动物感知的定义有关。然而,在撰写本文时,英国努力退出欧盟的最终结果几乎是不确定的。
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引用次数: 0
Legal Practitioners as Potential Money Launderers: Beneficial Ownership Transparency and PEPs: Solicitors Regulation Authority v Sharif (2019) 法律从业人员作为潜在的洗钱者:受益所有权透明度和pep:律师监管局诉谢里夫(2019)
Pub Date : 2020-01-03 DOI: 10.5750/DLJ.V31I1.1794
J. Hatchard
Legal practitioners enjoy a high degree of credibility and trust. With this comes vulnerability. For example, a solicitor’s trust account may be used by criminals through which to launder their proceeds of crime.1 The need to maintain public confidence in the profession remains of paramount importance and it follows that substantial reputational harm can occur where there is a risk that legal practitioners are being used (wittingly or otherwise) to facilitate money laundering.
法律从业人员享有很高的信誉和信任度。随之而来的是脆弱性。例如,犯罪分子可能会利用律师的信托账户来清洗他们的犯罪所得保持公众对该行业的信心仍然是至关重要的,因此,当法律从业人员有被(有意或无意地)利用来促进洗钱的风险时,可能会发生重大的声誉损害。
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引用次数: 1
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