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The Use of Lay Drafts as Drafting Instructions: A Case Study of Nigeria 使用草稿作为起草说明:尼日利亚案例研究
IF 0.3 Q3 Social Sciences Pub Date : 2024-01-02 DOI: 10.1093/slr/hmad015
Michael Habila Dauda
Lay drafts as used in Nigeria are erroneously thought to speed up the drafting process but they are insufficient as drafting instruction and they reduce the quality and effectiveness of legislation. Good drafting instructions will lead to good legislation while bad drafting instructions will lead to the drafter’s failure to grasp the fundamentals of the policy, and failure to get the draft right, and ultimately failure to achieve the purpose of the policy. This article is intended to analyse the drafting process in Nigeria to point out the causes of ineffectiveness in legislation and how that can be improved.
在尼日利亚,人们错误地认为草拟草案可以加快起草过程,但草拟草案并不能充分发挥起草指导的作用,反而会降低立法的质量和效力。好的起草指导会带来好的立法,而坏的起草指导则会导致起草者无法掌握政策的基本要素,无法正确地起草草案,最终无法实现政策的目的。本文旨在对尼日利亚的起草过程进行分析,指出立法效率低下的原因以及如何加以改进。
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引用次数: 0
The Right to Silence Under Scrutiny: Unveiling the Significance of Section 313 of the Code of Criminal Procedure of India 接受审查的沉默权:揭示《印度刑事诉讼法典》第 313 条的意义
IF 0.3 Q3 Social Sciences Pub Date : 2023-12-19 DOI: 10.1093/slr/hmad011
Vaibhav Chadha, Deepali Poddar
The often-overlooked provision of criminal law, which holds significant importance is section 313 of the Code of Criminal Procedure 1973. Section 313 grants the accused an opportunity to provide their statement, ensuring their right to be heard and preventing self-incrimination. This article explores the background, evolution, and objectives of section 313 CrPC, as well as its alignment with the principles of natural justice. The main aim of the article is to demonstrate how India still falls short in upholding the right to silence as per section 313, through a detailed analysis of various judgments passed by the Supreme Court of India, and laws enacted in other jurisdictions around the world. The article addresses the issue of Indian courts using adverse inferences from an accused person’s silence, which conflicts with Article 20(3) of the Indian Constitution. It argues that drawing such inferences should be reconsidered by the courts, as it contradicts important legal principles and undermines the right to a fair trial.
1973 年《刑事诉讼法》第 313 条是经常被忽视的刑法条款,具有重要意义。第 313 条给予被告提供陈述的机会,确保其陈述权并防止自证其罪。本文探讨了《刑事诉讼法典》第 313 条的背景、演变和目标,以及该条与自然正义原则的一致性。文章的主要目的是通过详细分析印度最高法院通过的各种判决和世界其他司法管辖区颁布的法律,说明印度在维护第 313 条规定的沉默权方面仍然存在不足。文章论述了印度法院从被告人的沉默中作出不利推论的问题,这与《印度宪法》第 20(3)条相抵触。文章认为,法院应重新考虑这种推论,因为它违背了重要的法律原则,损害了获得公平审判的权利。
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引用次数: 0
Standard Essential Patents: Returning to the Basics on Unwired v Huawei 标准必要专利:就Unwired诉华为案回归基本原理
IF 0.3 Q3 Social Sciences Pub Date : 2023-12-19 DOI: 10.1093/slr/hmad012
Soumya Prakash Patra
Standard essential patents have become an extremely crucial element in developing modern technologies and standardization processes. This article examines the importance of standardization and standard essential patents in developing technologies and their effect on the legal jurisprudential environment. The introduction emphasizes the role of standardization in promoting the adoption of various essential technologies. Additionally, it focuses on the significance of standard essential patents that safeguard the technologies underlying such standards. The discussion delves into a particular legal case involving Unwired Planet’s licensing campaign for standard essential patents in the communication industry, emphasizing the judgments handed down by the UK Supreme Court. The analysis further investigates critical issues involved in the decision, such as jurisdiction over global licensing, non-discrimination under fair, reasonable, and non-discriminatory terms, and the flexibility of fair, reasonable, and non-discriminatory negotiations. The UK Supreme Court’s ruling clarifies maintaining a proper equilibrium between the interests of SEP holders and encouraging fair and reasonable licensing practices.
标准必要专利已成为现代技术发展和标准化进程中极其重要的因素。本文探讨了标准化和标准必要专利在技术发展中的重要性及其对法律判例环境的影响。引言强调了标准化在促进采用各种必要技术方面的作用。此外,它还重点介绍了标准必要专利的重要性,这些专利保护了这些标准的基础技术。讨论深入探讨了涉及 Unwired Planet 在通信行业标准必要专利许可活动的一个特殊法律案例,并强调了英国最高法院做出的判决。分析进一步探究了判决中涉及的关键问题,如对全球许可的管辖权,公平、合理和非歧视性条款下的非歧视,以及公平、合理和非歧视性谈判的灵活性。英国最高法院的裁决澄清了在 SEP 持有人的利益与鼓励公平合理的许可实践之间保持适当平衡的问题。
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引用次数: 0
Mauritius Responds to its ‘Grey-Listing’ by the Financial Action Task Force Through Statutes: An Informative Review 毛里求斯通过法规回应金融行动特别工作组将其列入 "灰名单":信息回顾
IF 0.3 Q3 Social Sciences Pub Date : 2023-12-19 DOI: 10.1093/slr/hmad014
Bhavna Mahadew
This article reviews the statutory response given by Mauritius to its ‘grey-listing’ by the Financial Action Task Force (FATF). It analyses the various legislations that the government had to amend or create to become compliant with the international standards set by the FATF in the wake of combating money laundering and financing of terrorism. The statutory response of Mauritius to its grey-listing by FATF can be considered as a successful one giving that a significant number of laws had to be simultaneously and harmoniously changed to the satisfaction of the FATF in a considerably short period of time. Indeed, in October 2021, Mauritius was removed from the list of jurisdictions under enhanced monitoring, having been placed there in February 2020. Therefore, the expediency which Mauritius responded through laws and the effectiveness with which it managed to restore international business through its financial services sector can humbly serve as lessons or best practices to jurisdictions finding themselves in similar situations with the FATF.
本文回顾了毛里求斯对金融行动特别工作组(FATF)将其列入 "灰名单 "所采取的法律应对措施。文章分析了政府为符合金融行动特别工作组在打击洗钱和资助恐怖主义方面制定的国际标准而必须修订或制定的各种立法。毛里求斯对被反洗钱金融行动特别工作组列入灰名单的法定应对措施可以说是成功的,因为大量法律必须在相当短的时间内同时进行协调修改,以达到反洗钱金融行动特别工作组的满意度。事实上,毛里求斯于 2021 年 10 月从接受强化监测的辖区名单中除名,而该名单于 2020 年 2 月被列入。因此,毛里求斯通过法律做出的快速反应以及通过其金融服务部门恢复国际业务的有效性,可以谦卑地作为与反洗钱金融行动特别工作组有类似情况的管辖区的经验教训或最佳做法。
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引用次数: 0
The President’s Role(s) in the Law-Making Process in Uganda 总统在乌干达法律制定过程中的作用
IF 0.3 Q3 Social Sciences Pub Date : 2023-12-18 DOI: 10.1093/slr/hmad013
Jamil Ddamulira Mujuzi
Articles 79(1) and (2) of the Constitution of Uganda provide that subject to the provisions of the Constitution, only Parliament or a person or body authorized by Parliament, has the power to make laws. Article 91 provides ways in which the President participates in the law-making process. I examine the Hansard of the 10th Parliament of Uganda (May 2016—May 2021) to demonstrate how the President invoked Article 91 to, inter alia, return Bills to Parliament or to decline to assent to Bills. The 10th Parliament passed 118 Bills, seven Bills were withdrawn and the President returned 11 Bills. The Hansard show that: (i) in most of the cases, Parliament amended the Bills to address the President’s concerns; (ii) there are instances in which Parliament appears to disregard the Constitution especially in cases where the President has exceeded the constitutional time limit within which he must assent to Bills; (iii) Parliament applied different methodologies to gather the information it needed to revise the Bills and (iv) in a few cases, Parliament disagreed with the President and declined to change the returned clauses of the Bills. The article shows, inter alia, that the President wielded enormous powers in the law-making process contrary to what was envisaged by the drafters of the Constitution. It is argued, inter alia, that in reconsidering the Bills returned by the President, Parliament should not ignore the issue of public participation otherwise the Acts may be declared unconstitutional. It is also argued, basing on the drafting history of the Constitution, that the 30-day period within which the President is required to assent to a Bill excludes Sundays and public holidays. However, it includes Saturdays.
乌干达宪法》第 79 条第(1)款和第(2)款规定,在不违反《宪法》规定的情况下, 只有议会或议会授权的个人或机构有权制定法律。第 91 条规定了总统参与法律制定过程的方式。我研究了乌干达第 10 届议会(2016 年 5 月至 2021 年 5 月)的会议记录,以说明总统如何援引第 91 条,除其他外,将法案退回议会或拒绝同意法案。第 10 届议会通过了 118 项法案,7 项法案被撤回,总统退回了 11 项法案。立法记录显示(i)在大多数情况下,议会对法案进行了修订,以解决总统的关切;(ii)在一些情况下,议会似乎无视《宪法》,特别是在总统超过宪法规定的必须同意法案的时限的情况下;(iii)议会采用不同的方法收集修订法案所需的信息;(iv)在少数情况下,议会不同意总统的意见,拒绝修改退回的法案条款。文章特别指出,总统在立法过程中拥有巨大的权力,这与宪法起草者的设想背道而驰。文章特别指出,在重新审议总统退回的法案时,议会不应忽视公众参与问题,否则可能会宣布这些法案违宪。根据《宪法》的起草历史,还有人辩称,要求总统同意法案的 30 天期限不包括星期日和公共节假日。但是,它包括星期六。
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引用次数: 0
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 Social Sciences 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 Social Sciences 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 Social Sciences 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 Social Sciences 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 Social Sciences 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
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Statute Law Review
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