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How Will the Retained EU Law (Revocation and Reform) Act 2023 Affect the Principle of EU-Law Conforming Construction in UK Law? 2023 年保留欧盟法律(撤销和改革)法案》将如何影响英国法律中的欧盟法律符合性构建原则?
IF 0.3 Q3 LAW Pub Date : 2023-12-09 DOI: 10.1093/slr/hmad009
Fabian Barth
Following prolonged political controversy, the provisions from the initial Retained EU Law (Revocation and Reform) Bill which abolish general principles of EU law, as well as its supremacy, have been enacted. This article investigates whether this is likely to affect the principle of EU-law conforming construction, and contemplates three scenarios how EU-derived UK law might be interpreted in the future.
经过长期的政治争议,最初的《保留欧盟法律(撤销和改革)法案》中废除欧盟法律一般原则及其最高地位的条款已经颁布。本文探讨了这是否会影响欧盟法律的合规解释原则,并设想了三种将来如何解释源于欧盟的英国法律的情形。
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引用次数: 0
Disclosure in Civil Proceedings in the UK and Kazakhstan: Comparative Analysis 英国和哈萨克斯坦民事诉讼中的信息披露:比较分析
IF 0.3 Q3 LAW Pub Date : 2023-11-28 DOI: 10.1093/slr/hmad010
Aizhan Satayeva
The relevance of the chosen problem is conditioned by the need to develop theoretical ideas about the institution of disclosure of documents in the civil procedural legislation of the Republic of Kazakhstan, considering the experience of the UK, which will emphasize the potential of this measure to improve procedural discipline and ensure legal certainty in making court decisions and increase the level of legal culture in Kazakhstan, which may affect the effectiveness of this procedure or this institution in practice. The purpose of this study was to characterize the institute of disclosure of documents in civil proceedings using methods of comparative legal analysis of English contract law and the current legislation of the Republic of Kazakhstan. The methodological basis of the study consists of dialectical method, comparative legal analysis, analysis and synthesis, formal and logical, formal and legal, classification and grouping, and questionnaire methods. There is an urgent need to develop theoretical ideas about the disclosure of documents in the Republic of Kazakhstan, especially in light of the introduction of new elements of disclosure such as pre-trial protocol in the civil process.
所选问题的相关性取决于需要发展关于哈萨克斯坦共和国民事诉讼立法中文件披露制度的理论思想,考虑到联合王国的经验,联合王国将强调这一措施的潜力,以改善程序纪律,确保作出法院判决的法律确定性,并提高哈萨克斯坦的法律文化水平。这可能会影响本程序或本机构在实践中的有效性。本研究的目的是利用对英国合同法和哈萨克斯坦共和国现行立法的比较法律分析方法,描述民事诉讼中文件披露制度的特点。研究的方法论基础包括辨证法、比较法、分析与综合、形式与逻辑、形式与法律、分类与分组、问卷调查法。迫切需要发展关于哈萨克斯坦共和国文件公开的理论构想,特别是考虑到在民事诉讼程序中引入了诸如审前议定书等新的公开要素。
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引用次数: 0
A Rule of Law Analysis: Botswana’s Non-Conviction-Based Confiscation and Forfeiture Regime Under the Proceeds and Instruments of Crime Act, 2014 法治分析:博茨瓦纳在《犯罪收益和工具法》下的非定罪没收和没收制度,2014
Q3 LAW Pub Date : 2023-10-07 DOI: 10.1093/slr/hmad006
Gosego Rockfall Lekgowe
Abstract On its inception, the non-conviction-based asset confiscation and forfeiture regime attracted both praise and criticism. Using the Rule of Law as an analytic framework, this paper evaluates the non-conviction-based asset confiscation and forfeiture regime under Botswana’s Proceeds and Instruments of Crime Act, 2014. The paper finds that whilst the regime has withstood constitutional attacks, it still retains some shortcomings. For instance, there is lack of clarity on the standards of proof, procedures and inadequate protection of third-party rights. The paper recommends reforms.
摘要非定罪资产没收制度自诞生之初就受到了褒贬不一的评价。本文以法治为分析框架,评估了博茨瓦纳2014年《犯罪收益和工具法》下的非定罪资产没收和没收制度。论文发现,尽管缅甸政权经受住了宪法的攻击,但它仍然存在一些缺点。例如,举证标准、程序和对第三方权利的保护不够明确。报告建议进行改革。
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引用次数: 0
Toward the Development of the Regulatory Framework of Legislative Drafting and Law-Making Process in Saudi Arabia 沙特阿拉伯立法起草和立法过程监管框架的发展
Q3 LAW Pub Date : 2023-10-07 DOI: 10.1093/slr/hmad008
Rakan Alharbi
Abstract The legislative drafting process has recently undergone dramatic changes in Saudi Arabia. This development was motivated by the country’s desire to create a more transparent, efficient, and effective legal system. Despite the advancements achieved in legislative drafting, there remain significant challenges that impede the quality of proposed legislation in the country. This article aims to contribute to the evolution of the regulatory framework governing the legislative drafting and law-making process. It embarks on a comprehensive examination of the existing legislative drafting mechanisms, highlighting the need for further improvement in the regulatory framework of legislative drafting to improve the efficiency and clarity of legislation. Furthermore, the article elucidates the complexities and challenges associated with drafting effective laws within the legal system and clarifies the pivotal function of manual drafting and regulatory impact assessments in augmenting the effectiveness and quality of enacted laws. This article concludes with various recommendations such as the need to launch a drafting manual and systematic approach to regulatory impact assessment which can strengthen the evidence base for the development and review of proposed and existing legislation. This article is expected to serve as a cornerstone for similar studies in other jurisdictions within the Middle East.
沙特阿拉伯的立法起草过程最近发生了巨大变化。这一发展的动机是该国希望建立一个更加透明、高效和有效的法律体系。尽管在立法起草方面取得了进展,但仍然存在重大挑战,阻碍了该国拟议立法的质量。本文旨在对立法起草和立法过程的监管框架的演变作出贡献。报告开始全面检讨现有的立法草拟机制,强调需要进一步改善立法草拟的规管架构,以提高立法的效率和清晰度。此外,本文阐明了在法律体系内起草有效法律的复杂性和挑战,并阐明了人工起草和监管影响评估在提高颁布法律的有效性和质量方面的关键作用。本文最后提出了各种建议,例如需要推出起草手册和系统的监管影响评估方法,这可以加强制定和审查拟议和现有立法的证据基础。本文有望为中东其他司法管辖区的类似研究奠定基础。
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引用次数: 0
A Critical Legal Analysis of the Effect of the Proposed ‘Two-Pot System’ on Spouses in Unregistered Customary Marriages in South Africa 拟议的“两锅制”对南非未登记习惯婚姻中配偶影响的批判性法律分析
Q3 LAW Pub Date : 2023-10-05 DOI: 10.1093/slr/hmad007
Teron Rikhotso
Abstract For the first time in the history of South African pension laws, a system is proposed that will enable pension fund members to access a portion of their pension benefits while still actively employed. The proposed system seeks to provide pension fund members with financial relief without requiring them to quit their jobs due to financial strain. This paper commends the government’s initiative in response, among others, to the financial problems caused by the coronavirus disease (COVID-19) pandemic. This paper argues, however, that despite the potential beneficial effects the system may have on pension fund members, it may introduce new challenges that pension fund stakeholders have never faced before. This paper aims to highlight a potential defect in the proposed system, particularly in cases where pension benefits are included in the joint estate of a pension fund member. South African customary marriages, whether or not they are registered, are by default in community of property. The pension benefits of a member who is a spouse in these marriages form a part of the joint estate. This paper examines and proposes solutions to the challenges that the proposed system may present to spouses in unrecorded customary marriages.
在南非养老金法律的历史上,第一次提出了一种制度,使养老基金成员能够在仍然积极就业的情况下获得部分养老金福利。拟议中的制度旨在向养老基金成员提供经济救济,而不要求他们因经济紧张而辞职。本文赞扬政府在应对冠状病毒病(COVID-19)大流行造成的财务问题等方面采取的主动行动。然而,本文认为,尽管该制度可能对养老基金成员产生潜在的有益影响,但它可能会带来养老基金利益相关者从未面临过的新挑战。本文旨在强调拟议制度的潜在缺陷,特别是在养老金福利包括在养老基金成员的共同遗产中的情况下。南非的传统婚姻,无论是否登记,都默认为财产共有。在这些婚姻中作为配偶的成员的养恤金福利构成共同财产的一部分。本文审查并提出解决方案,以解决拟议的制度可能对未记录的习惯婚姻中的配偶提出的挑战。
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引用次数: 0
Balancing Privacy and Competition: Evaluating the Competitive Effects of India’s Data Protection Bill 平衡隐私与竞争:评估印度数据保护法案的竞争效应
Q3 LAW Pub Date : 2023-06-19 DOI: 10.1093/slr/hmad004
Priyansh Dixit, Sukarm Sharma
Abstract Data protection and competition law are perhaps two of the most enmeshed legal arenas in the contemporary data-driven world. This essay ingresses into this intersection, appraising the competitive implications of India’s Data Protection Bill, 2022 through key arenas of conflict such as jurisdictional tussles, data portability, the remedy of mandatory data sharing, and compliance costs. Although the intersection of privacy and competition law has been discussed in Indian scholarship, an analysis of the competitive implications of the Data Protection Bill has been absent. This is precisely the gap that this piece aims to fill, by appraising the host of new implications of the Digital Personal Data Protection Bill (DPDPB) on Indian competition and providing a framework to evaluate various competition concerns such as jurisdiction, compliance, and data sharing of any subsequent data protection bill in India. It does this by first analyzing the extent to which competitive concerns can be addressed in the Indian data protection system. With this premise, it secondly considers the question of jurisdictional primacy between the Competition Commission and the Data Protection Board, arguing for the primacy of the Competition Commission. Thirdly, it discusses the questions of data portability, mandatory data sharing and compliance costs in the DPDBP which could affect India’s competition, critically discussing the trade-offs and suggesting potential solutions. The goal of the piece is to critically examine the implications of the 2022 version of the bill to suggest ways forward for its future iterations in India.
数据保护和竞争法可能是当代数据驱动世界中最复杂的两个法律领域。本文进入这一交叉点,通过管辖权纠纷、数据可移植性、强制性数据共享的补救措施和合规成本等关键冲突领域,评估印度2022年数据保护法案的竞争影响。虽然印度学术界已经讨论了隐私和竞争法的交集,但对《数据保护法案》的竞争影响的分析却一直缺失。这正是本文旨在填补的空白,通过评估《数字个人数据保护法案》(DPDPB)对印度竞争的新影响,并提供一个框架来评估印度任何后续数据保护法案的管辖权、合规性和数据共享等各种竞争问题。为此,它首先分析了印度数据保护系统可以在多大程度上解决竞争问题。在此前提下,本文其次考虑了竞争委员会和数据保护委员会之间的管辖权优先问题,论证了竞争委员会的首要地位。第三,讨论了可能影响印度竞争的DPDBP中的数据可移植性,强制性数据共享和合规成本问题,批判性地讨论了权衡并提出了潜在的解决方案。这篇文章的目的是批判性地审视2022年版法案的影响,为印度未来的修订提出建议。
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引用次数: 0
Legislating Through Policy Statements: The Authority of National Visions in the Arabian Gulf 通过政策声明立法:阿拉伯海湾国家愿景的权威
Q3 LAW Pub Date : 2023-06-14 DOI: 10.1093/slr/hmad005
Ilias Bantekas
Abstract National Visions are policy instruments characterized by an outlook that is constitutional in nature, while also appealing to a country’s external relations, as well as its citizens. They are unique to the law and policy of Gulf States and set out decade-long policy aims that are subsequently translated into legislation or/and foreign policy objectives. This article examines the sports-related dimension of the Qatari National Vision, which was the basis for the country’s bid for the 2022 FIFA World Cup. It is demonstrated that the constitutional nature of the sports dimension of the Vision helped to shape social attitudes in Qatar, as well as facilitate a rapid legislative reform in the field of labor relations, such that would have been unthinkable in the absence of strong sports-oriented policy underpinning the entire nation. National Visions should therefore be viewed as accelerators of social change and drivers of rapid legislative reform, even if they themselves do not outward display normative qualities.
国家愿景是一种政策工具,其特点是具有宪法性质的观点,同时也吸引一个国家的对外关系及其公民。它们是海湾国家的法律和政策所特有的,并规定了十年的政策目标,这些目标随后转化为立法或/和外交政策目标。本文考察了卡塔尔国家愿景的体育相关维度,这是该国申办2022年FIFA世界杯的基础。结果表明,《愿景》体育方面的宪法性质有助于塑造卡塔尔的社会态度,并促进了劳工关系领域的快速立法改革,如果没有强有力的以体育为导向的政策支撑整个国家,这是不可想象的。因此,国家愿景应被视为社会变革的加速器和快速立法改革的推动者,即使它们本身没有外在表现出规范的品质。
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引用次数: 0
Surveillance within the Law: A Critique of the Legal Framework for Surveillance of Digital Communications by Law Enforcement Authorities in Botswana 法律范围内的监视:博茨瓦纳执法当局对数字通信监视法律框架的批评
Q3 LAW Pub Date : 2023-06-14 DOI: 10.1093/slr/hmad003
Badala Tachilisa Balule, Baboki Jonathan Dambe
Abstract Surveillance of digital communications invokes both commendation and criticism. Whereas it may serve justifiable and legitimate purposes, it is also susceptible to abuse if it is undertaken in the absence of adequate safeguards. In 2022, Botswana enacted the Criminal Procedure and Evidence (Controlled Investigations) Act. The Act is intended to regulate the surveillance of digital communications for law enforcement purposes. This article assesses whether the Act provides adequate procedural safeguards to protect against undue infringement of fundamental rights, particularly, the right to privacy. In this regard, the article examines how the constitutionally entrenched right to privacy has been interpreted and applied by the courts in Botswana. Consequently, the article interrogates whether the surveillance of digital communications under the auspices of the Criminal Procedure and Evidence (Controlled Investigations) Act falls within the parameters of justifiable inroads into the right to privacy. The analysis of the Act is undertaken drawing inspiration from international jurisprudence on how to balance the necessity for surveillance with respect for fundamental rights.
对数字通信的监控既有赞扬,也有批评。虽然它可以为正当和合法的目的服务,但如果在没有充分保障的情况下进行,它也容易被滥用。2022年,博茨瓦纳颁布了《刑事程序和证据(受控调查)法》。该法案旨在为执法目的规范对数字通信的监控。本文评估该法是否提供了适当的程序保障,以防止对基本权利,特别是隐私权的不当侵犯。在这方面,本文审查了博茨瓦纳法院是如何解释和适用宪法规定的隐私权的。因此,本文质疑在《刑事诉讼和证据(受控调查)法》的支持下对数字通信的监视是否属于正当侵犯隐私权的范畴。对该法的分析是从如何在监督的必要性与尊重基本权利之间取得平衡的国际判例中得到启发的。
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引用次数: 0
Thornton’s Legislative Drafting 桑顿的立法草案
Q3 LAW Pub Date : 2023-04-01 DOI: 10.1093/slr/hmac014
Daniel Greenberg
I have been using and enjoying Thornton’s Legislative Drafting for over 30 years, and although I cannot say that I have consulted it regularly or frequently, my occasional resorts to its wisdom have generally been rewarded with something of value, particularly in my early years as a drafter. One thing that all practitioners of the art of legislative drafting agree (and it is very possibly the only thing on which they all agree) is that you cannot teach legislative drafting at a theoretical level, and one can learn the art only by performing it under constructive supervision. For that reason, office manuals in legislative drafting offices that attempt to constrain the drafter to follow set devices and patterns to deal with particular legislative situations are notoriously doomed to failure, because the drafter needs to be free to apply her or his mind to the widest possible set of legal, political and other circumstances in crafting each provision, whether it appears to follow well-trodden policy paths or to be entirely novel.
30多年来,我一直在使用和享受桑顿的《立法起草》,虽然我不能说我经常或经常查阅它,但我偶尔借鉴它的智慧,通常会得到一些有价值的回报,尤其是在我作为起草人的早期。所有立法起草艺术的实践者都同意的一件事(这很可能是他们都同意的唯一一件事)是,你不能在理论层面上教授立法起草,一个人只有在建设性的监督下才能学习立法起草艺术。因此,立法起草办公室的办公室手册试图限制起草者遵循既定的手段和模式来处理特定的立法情况,这是出了名的注定要失败的,因为起草者在起草每一项规定时,需要自由地将自己的思想应用到尽可能广泛的法律、政治和其他情况中,无论它看起来是遵循常规的政策路径,还是完全新颖的。
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引用次数: 0
The Problem of Interpretive Canons 解释独木舟问题
IF 0.3 Q3 LAW Pub Date : 2023-04-01 DOI: 10.1093/slr/hmac017
David Tan
In this paper it is shown that interpretive canons are either constitutionally invalid because of the principles of interpretation it establishes, or a theory of interpretation can be made to be inconsistent: where a theory of interpretation says do p, then a new canon can say do not-p. This is called the Canon Dilemma. Whichever horn of the dilemma is taken as acceptable (accept invalidity or possible inconsistency), this shows that canons cause more problems for theorising about interpretation than currently realised. Some might interpret the Canon Dilemma as a process of theory change (p is replaced with not-p rather than being contradicted by it), but even then problems of incoherence still persist. This paper also shows a connection between debates on the constitutionality of interpretive canons and the descriptive accuracy of linguistic theories of interpretation.
在本文中,我们证明了解释性经典要么因为它所建立的解释原则而在本质上是无效的,要么一个解释理论可以是不一致的:当一个解释理论说做p,那么一个新的经典可以说不做p。这就是所谓的正典困境。无论这一困境的哪一方被认为是可以接受的(接受无效或可能的不一致),这表明经典在解释理论化方面造成的问题比目前认识到的要多。有些人可能会将“正典困境”解释为理论变化的过程(p被非p取代,而不是与之相矛盾),但即便如此,不连贯的问题仍然存在。本文还展示了关于解释规范的合宪性的争论与语言解释理论的描述准确性之间的联系。
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引用次数: 0
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Statute Law Review
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