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Comparative and Foreign Law

2017

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Articles 1 - 30 of 389

Full-Text Articles in Law

Tinjauan Atas Kebijakan Hukum Pidana Terhadap Penyuapan Di Sektor Privat Dalam Hukum Nasional Indonesia: Suatu Perbandingan Dengan Singapura, Malaysia Dan Korea Selatan, Vidya Prahassacitta Dec 2017

Tinjauan Atas Kebijakan Hukum Pidana Terhadap Penyuapan Di Sektor Privat Dalam Hukum Nasional Indonesia: Suatu Perbandingan Dengan Singapura, Malaysia Dan Korea Selatan, Vidya Prahassacitta

Jurnal Hukum & Pembangunan

Purpose of this research is to analyze private sector bribery penal policy in Indonesia. Although Indonesia ratified United Nation Convention Against Corruption, Indonesia has not implemented the convection’s provision of article 21 regarding the criminalization of private sector bribery. Analysis conducted using a functional method of comparative law from Konrad Zweigert and macro comparison against private sector bribery penal, which successfully applies in Singapore, Malaysia, and South Korea. Therefore, reflected from private sector bribery penal policy in Singapore, Malaysia, and South Korea thus Indonesia shall reformulate the private sector bribery provision which regulates in in current corruption act draft.

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Bentuk-Bentuk Kekerasan Domestik Dan Permasalahannya (Studi Perbandingan Hukum Indonesia Dan Malaysia), Kuswardani - Dec 2017

Bentuk-Bentuk Kekerasan Domestik Dan Permasalahannya (Studi Perbandingan Hukum Indonesia Dan Malaysia), Kuswardani -

Jurnal Hukum & Pembangunan

The paper is purposed to describe / explain criminal laws which regulate domestic violence and the problems happen in Indonesia. This study uses the comparison method which compare substance criminal law of Indonesia with criminal law of Malaysia. The study is focused in the subject matter from criminal law of substantive. The result point out that both of the two countries have had criminal law on domestic violence, Indonesia is regulated at The Act of Elimination of Domestic Violence No 23 of 2004, while Malaysia is appointed at Domestic Violence 1994, and this was amendment on February 20, 2012. This …

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Kedudukan Dan Kewenangan Komisi Yudisial Republik Indonesia Dan Perbandingannya Dengan Komisi Yudisial Di Beberapa Negara Eropa, Suparto - Dec 2017

Kedudukan Dan Kewenangan Komisi Yudisial Republik Indonesia Dan Perbandingannya Dengan Komisi Yudisial Di Beberapa Negara Eropa, Suparto -

Jurnal Hukum & Pembangunan

Reformation has given birth to the amendment on 1945 Constitution. One of the results of the third amendment of the constitution was the birth of Judicial Commission. The standing of Judicial Commission is very important, so structurally it is being positioned at the same level with the Supreme Court and the Constitutional Court. Yet, the Judicial Commission role is as an auxiliary body to the judicial power institutions. It only deals with the matters of honor, dignity, and behavior of the judges, not the judiciary institutions. Aside from that, Judicial Commission is not involved in the organization, human resources, administration, …

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To Be Creditor Or To Be Shareholder, That Is The Question: Is The Debt-For-Equity Swap Creditors’ Financial Suicide?, Jongho Kim Dec 2017

To Be Creditor Or To Be Shareholder, That Is The Question: Is The Debt-For-Equity Swap Creditors’ Financial Suicide?, Jongho Kim

The Journal of Business, Entrepreneurship & the Law

This Article deals with debt-for-equity swap-related issues in Korean corporate restructuring procedures. Debt-for-equity swaps were widely employed during the Latin American foreign debt restructuring process, but the Korean case is slightly different. Because the creditors of reorganizing corporations are mainly Korean domestic financial institutions rather than foreign creditors, this type of financial scheme is applied under local law. The following examines the legal aspects of debt-for-equity swaps, which have been promoted as a way to eliminate excessive insolvent loans and financial debts (and stood in the way of restructuring, via IMF bail-out funds). It also discusses how a debt-for-equity swap …

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Urbanization, Land Rights And Development: A Case Study Of Waterfront Communities In Lagos, Nigeria., Gideon Olaniyi Omoniyi Dec 2017

Urbanization, Land Rights And Development: A Case Study Of Waterfront Communities In Lagos, Nigeria., Gideon Olaniyi Omoniyi

Master's Theses

The aim of this study is to examine the root causes of forced evictions and displacement through the current urbanization process in Lagos, Nigeria. My particular attention is devoted to the legal complexities and how ethnolinguistic identities shape land laws, influence land tenure, and construct urban citizenship. Through this process, competing claims to land ownership provide fertile ground for forced evictions and displacement. Existing scholars suggest that poor urban residents lack rights to stay in their neighborhoods, while a powerful capitalist class has emerged and dispossessed the poor from their lands. Yet these existing approaches derived from the neoclassical and …

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Slipping Through The Cracks: How Digital Music Streaming Cuts Corners On Artists’ Royalty Revenues Globally, Frances Lewis Dec 2017

Slipping Through The Cracks: How Digital Music Streaming Cuts Corners On Artists’ Royalty Revenues Globally, Frances Lewis

Brooklyn Journal of International Law

At a time when the digital distribution of music is dominating the music industry, there are more music consumers than ever. This makes it vitally important for performing artists to receive the credit they are due. An inherent problem in music’s digital distribution market is that music streaming companies often fail to acquire proper licenses to expand their music libraries faster than their competitors. Performing artists who may not have the same income stream as their A-list counterparts often cannot bear the cost of litigation to pursue uncredited royalties. The U.S. class action model provides performing artists with a legal …

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The Scrivener’S Secrets Seen Through The Spyglass: Gchq And The International Right To Journalistic Expression, Matthew B. Hurowitz Dec 2017

The Scrivener’S Secrets Seen Through The Spyglass: Gchq And The International Right To Journalistic Expression, Matthew B. Hurowitz

Brooklyn Journal of International Law

As part of the U.K.’s electronic surveillance program, the Government Communications Headquarters (GCHQ), started in 1909 to combat German Spies, now collects metadata from both foreigners and its own citizens. Through the express statutory authority of the Regulation of Investigatory Powers Act of 2000 (RIPA), and a loophole in section 94 of the Telecommunications Act of 1984, the GCHQ collects metadata, which is all of the information that is extrinsic to the actual contents of a communication. The GCHQ can request an authorization from a public authority—a member of its own staff—to collect traffic data, service use information, or subscriber …

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The “Right” Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana Dec 2017

The “Right” Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana

Brooklyn Journal of International Law

Should there be a constitutional right to environmental protection? Arguments for and against are aplenty, but there is no consensus on this issue. Drawing on the experience within the U.S. and Indian Constitutions, this article posits that the right to environmental protection has normative and practical significance, because a constitutional right attaches to an individual and, hence, can protect an individual from environmental harms, whereas environmental laws, that focus primarily on reducing adverse environmental impact on a general population, may not. It further argues that, to be effective, three constitutionally-embedded rights that are central to preserving the right to environmental …

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Safeguarding The Future Of Bangladeshi Children: The Need For A Comprehensive National Educational System, Samantha A. Barach Dec 2017

Safeguarding The Future Of Bangladeshi Children: The Need For A Comprehensive National Educational System, Samantha A. Barach

Brooklyn Journal of International Law

The United Nations Convention on the Rights of the Child (CRC)—the human rights treaty ratified by the most States Parties—is binding international law which enumerates the rights guaranteed to all children worldwide. Despite the widespread ratification of the CRC, many countries lack the proper legislation and agencies to ensure that these rights are afforded to all children. One such country is Bangladesh. A relatively new country, Bangladesh gained its independence in 1971 and was one of the first twenty countries to ratify the CRC. Notwithstanding this eagerness to promote children’s rights, Bangladeshi children suffer from a high level of abuse …

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What About Small Businesses? The Gdpr And Its Consequences For Small U.S.-Based Companies, Craig Mcallister Dec 2017

What About Small Businesses? The Gdpr And Its Consequences For Small U.S.-Based Companies, Craig Mcallister

Brooklyn Journal of Corporate, Financial & Commercial Law

Fast-approaching changes to European data privacy law will have consequences around the globe. Historically, despite having dramatically different approaches to data privacy and data protection, the European Union and the United States developed a framework to ensure that the highspeed freeway that is transatlantic data transfer moved uninterrupted. That framework was overturned in the wake of revelations regarding U.S. surveillance practices, and amidst skepticism that the United States did not adequately protect personal data. Further, the European Union enacted the General Data Protection Regulation (GDPR), a sweeping overhaul of the legal data protection landscape that will take effect in May …

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Sovereign Debt Restructuring And English Governing Law, Steven L. Schwarcz Dec 2017

Sovereign Debt Restructuring And English Governing Law, Steven L. Schwarcz

Brooklyn Journal of Corporate, Financial & Commercial Law

The problem of sovereign indebtedness is becoming a worldwide crisis because nations, unlike individuals and corporations, lack access to bankruptcy laws to restructure unsustainable debt. Decades of international efforts to solve this problem through contracting and attempted treaty-making have failed to provide an adequate debt-restructuring framework. A significant amount of outstanding sovereign debt is governed, however, by English law. This Article argues that the U.K. Parliament has the extraordinary power to help solve the problem of unsustainable country debt by changing English law to facilitate fair and consensual debt restructuring. This Article also proposes modifications to English law that Parliament …

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Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger Dec 2017

Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In this essay Professor Janger considers the role of bankruptcy judges in Chapter 9 cases in light of the scholarly literature on public law judging. He explores the extent to which bankruptcy judges engaged in the fiscal restructuring of a municipality use tools, and face constraints, similar to those utilized by federal district court judges in structural reform cases, where constitutional norms are at issue.

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Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner Dec 2017

Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner

Journal Articles

This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation …

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How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad Dec 2017

How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad

Articles

Over the last decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity and the “social value of labor” with an expansive interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors …

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A Pantomime Of Privacy: Terrorism And Investigative Powers In German Constitutional Law, Russell A. Miller Dec 2017

A Pantomime Of Privacy: Terrorism And Investigative Powers In German Constitutional Law, Russell A. Miller

Russell A. Miller

Germany is widely regarded as a global model for the privacy protection its constitutional regime offers against intrusive intelligence-gathering and law enforcement surveillance. There is some basis for Germany’s privacy “exceptionalism,” especially as the text of the German Constitution (“Basic Law”) provides explicit textual protections that America’s Eighteenth Century Constitution lacks. The German Federal Constitutional Court has added to those doctrines with an expansive interpretation of the more general rights to dignity (Basic Law Article 1) and the free development of one’s personality (Basic Law Article 2). This jurisprudence includes constitutional liberty guarantees such as the absolute protection of a …

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Victim Participation In Japan, Erik Herber Dec 2017

Victim Participation In Japan, Erik Herber

Washington International Law Journal

In 2008, a victim participation system was introduced in Japan, which enabled crime victims to participate in criminal proceedings. One of the goals of the system was to correct the wrong done to victims due to their lack of previous involvement, thus giving crime victims what they “naturally desire.” Employing Malcolm Feeley’s analytical framework to make sense of planned legal change, this Article shows that the new system emerged against the background of a combination of international trends: victim activism and public perceptions of crime getting out of hand. It finds that for reasons that are not well understood, only …

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Introduction Of Videotaping Of Interrogations And The Lessons Of The Imaichi Case: A Case Of Conventional Criminal Justice Policy-Making In Japan, Setsuo Miyazawa, Mari Hirayama Dec 2017

Introduction Of Videotaping Of Interrogations And The Lessons Of The Imaichi Case: A Case Of Conventional Criminal Justice Policy-Making In Japan, Setsuo Miyazawa, Mari Hirayama

Washington International Law Journal

Malcolm M. Feeley examined cases of criminal justice reform in the United States, where reforms can be conceived and initiated in a very open structure, but implementation of the introduced reforms can be handed over to highly fragmented implementers. The story of mandatory videotaping of interrogations and accompanying changes in Japan demonstrates the reform process at the other end of the scale, where the members of the criminal justice establishment can exert a strong influence even at the conception and initiation stages, and have even stronger control at the implementation and routinization stages. We believe that Feeley’s theoretical framework can …

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Court Reform With Chinese Characteristics, Margaret Y.K. Woo Dec 2017

Court Reform With Chinese Characteristics, Margaret Y.K. Woo

Washington International Law Journal

In Court Reform on Trial: Why Simple Solutions Fail, Malcolm Feeley identified a number of obstacles that undermine reforms of the United States court system. Feeley’s proposed solution was to adopt a problem-oriented “rights strategy”—letting the courts themselves solve their problems through litigation. This is because litigation is a forum in which courts are well placed to identify specific problems and devise pragmatic solutions. This Article takes a look at this proposition in the context of court reforms in China and concludes that courts (and law) are also a reflection of national goals and identity. Any reforms to a …

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East Asian Court Reform On Trial: Comments On The Contributions, Malcolm M. Feeley Dec 2017

East Asian Court Reform On Trial: Comments On The Contributions, Malcolm M. Feeley

Washington International Law Journal

I am honored to have my book, Court Reform on Trial: Why Simple Solutions Fail, serve as the organizing framework for this symposium. The enterprise has proven valuable as it provided a reason to assemble a set of articles that focus on important changes in Asian courts in recent decades. Further, it appears that the reforms in three of the countries are loosely related to each other. While Japan had a head start on judicial reforms, both Korea and Taiwan embarked on the same path as soon as they had shed authoritarian rule. China has pursued a more ambitious …

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The Supreme People's Court's Annual Report On Intellectual Property Cases (2016) (China), Tianyi (Tammy) Wu, Xiaoyang Wang Dec 2017

The Supreme People's Court's Annual Report On Intellectual Property Cases (2016) (China), Tianyi (Tammy) Wu, Xiaoyang Wang

Washington International Law Journal

The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The Annual Report summarizes intellectual property cases, such as patent, trademark, copyright, trade secrets, and unfair competition cases. This 2016 Annual Report examines 27 cases and includes general guidelines for legal application. It reflects the Supreme People’s Court’s thoughts and approaches for ruling on new, difficult, and complex IP and competition cases.

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Assessing The Direct And Indirect Impact Of Citizen Participation In Serious Criminal Trials In Japan, Matthew J. Wilson Dec 2017

Assessing The Direct And Indirect Impact Of Citizen Participation In Serious Criminal Trials In Japan, Matthew J. Wilson

Washington International Law Journal

In Japan, the idea of citizen involvement in the judicial process has gained greater acceptance over the past decade. On May 21, 2009, Japan implemented its saiban’in seido or “lay judge system” as part of monumental legal reforms designed to encourage civic engagement, enhance transparency, and provide greater access to the justice system. About eight years before this historic day, a special governmental committee known as the Justice System Reform Council (“JSRC”) set forth wide-sweeping recommendations for revamping Japan’s judicial system. The underlying goals targeted three pillars of fundamental reform, namely: (i) a justice system that is “easier to use, …

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Advance Toward "People's Court" In South Korea, Yong Chul Park Dec 2017

Advance Toward "People's Court" In South Korea, Yong Chul Park

Washington International Law Journal

Since 2008, criminal jury trials have been implemented in South Korea with the Citizen Participation in Criminal Trials Act. Under the Act, defendants have the option to choose a jury trial over a bench trial, although jury verdicts, as well as sentencing opinions rendered by a jury, are not binding on the court pursuant to Article 46(2) of the Act. While Korea’s adoption of a criminal jury trial was an ambitious move toward judicial reform, it has faced serious obstacles and has had limited influence over the Korean judicial system. In this Article, I use the five stages of planned …

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East Asian Court Reform On Trial: Introduction To The Symposium, Setsuo Miyazawa Dec 2017

East Asian Court Reform On Trial: Introduction To The Symposium, Setsuo Miyazawa

Washington International Law Journal

No abstract provided.

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Diversification Of The Japanese Judiciary, Daniel H. Foote Dec 2017

Diversification Of The Japanese Judiciary, Daniel H. Foote

Washington International Law Journal

Japan has a career judiciary. The Courts Act of 1947 provides that judges may be appointed from among prosecutors, attorneys, and law professors. In practice, however, the vast majority of judges come from a fourth category, “assistant judges,” who are appointed directly upon completion of the legal training program and typically serve through retirement. This continues a career tradition that dates back to the late nineteenth century. For nearly that long, the Japanese bar has been advocating that the career system should be abolished and that a substantial portion of the judiciary, if not all judges, should be drawn from …

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Criminal Court Reform In Taiwan: A Case Of Fragmented Reform In A Not-Fragmented Court System, Kai-Ping Su Dec 2017

Criminal Court Reform In Taiwan: A Case Of Fragmented Reform In A Not-Fragmented Court System, Kai-Ping Su

Washington International Law Journal

This Article examines the character of Taiwan’s criminal court system and proposed court reforms. Taiwan’s criminal court is a not-fragmented system, distinct from the fragmented American criminal court. In fact, with hierarchical control in prosecutorial rulings and central administration of judicial decision-making, Taiwan’s criminal court system can be deemed a relatively centralized and bureaucratic organization. Given this context, when Taiwan’s criminal justice system disappoints the people, judges take the blame for the failures of the system. To resolve the serious problem of public distrust in judges and the court system, Taiwan’s government and the judicial authority make “responding to expectations …

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Two Examples Of “Quasi-Constitutional Amendments” From The Italian Constitutional Evolution—A Response To Richard Albert, Nicola Lupo Dec 2017

Two Examples Of “Quasi-Constitutional Amendments” From The Italian Constitutional Evolution—A Response To Richard Albert, Nicola Lupo

Buffalo Law Review

In response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017).

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Informal Constitutional Change, Oran Doyle Dec 2017

Informal Constitutional Change, Oran Doyle

Buffalo Law Review

In response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017).

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Respecting The Mystery Of Constitutional Change, Jonathan L. Marshfield Dec 2017

Respecting The Mystery Of Constitutional Change, Jonathan L. Marshfield

Buffalo Law Review

In response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017).

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Quasi-Constitutional Change Without Intent—A Response To Richard Albert, Reijer Passchier Dec 2017

Quasi-Constitutional Change Without Intent—A Response To Richard Albert, Reijer Passchier

Buffalo Law Review

In response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017).

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Fundamental Rights, Federal States, And Sovereignty: Some Random Remarks, Donald H. Regan Dec 2017

Fundamental Rights, Federal States, And Sovereignty: Some Random Remarks, Donald H. Regan

Articles

I am not an EU lawyer. The days are long gone when I could know a substantial fraction of EU law just by knowing about the free movement of goods. I get a fleeting glimpse of where the EU is going every year at the Jean Monnet Seminar in Dubrovnik, but no more than a glimpse. Still, when the editors invited me to write this Editorial Note, I could not refuse. Looking for inspiration, I read or reread all the previous twelve Notes. This was an enjoyable and informative exercise in itself, but only a few of the essays suggested …

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