Essays of Faculty of Law University of Pécs, Yearbook of [year]
A Studia Iuridica Auctoritate Universitatis Pécs Publicata a Pécsi Tudományegyetem Állam- és Jogtudományi Kar sorozata, amelyen belül 2010 óta rendszeresen megjelenik az "Essays of Faculty of Law University of Pécs, Yearbook of [year]" című angol nyelvű tanulmányokat közlő, évkönyv formátumú Open Access folyóirata, amely tudományos publikációkat közöl a jogtudomány valamennyi területéről. A leadott tanulmányok külső szakértők által végzett, kettős vak lektorálást követően jelenhetnek meg. Az évkönyv jelenleg is megtalálható az egyik legnagyobb online folyóirat adatbázis, a HeinOnline kínálatában, de a kötet teljes tartalma e honlapról szabadon letölthető.
The Legal Framework for Electronic Signature in Jordan A Comparative Study with EU Regulations
Electronic signature, owned by the owner is a matter of trust, and it may be difficult for the other contracting party to verify its authenticity , hence the importance of dealing with and organizing digital signature is of paramount importance., The aim of this study is to compare the legislation of the EU and Jordan in governing the responsibility of the authentication service provider concerning electronic signature, to find out whether there is a lack of organized legislation with regard to the work of electronic signature service providers. The article will also examine the adequacy of general regulations in supervising the duties of electronic service providers under Jordanian law. I will emphasize the importance of establishing specific regulations, and the need to establish special rules for this particular responsibility, especially with regard to the development of specific rules in line with the UNCITRAL model law on electronic signatures. As regards the EU directives on electronic signatures and other international legislations, it must be emphasized that the issue of electronic authentication services raises several legal problems that can be resolved. Among others the legal nature of the liability of electronic authentication service providers, their legal basis, and their establishment are still subject to legal controversy. In addition to the scope of this responsibility and the issue of determining the extent of compensation that can be imposed in the event of harm to the customer or others, the Jordanian legislators have not established a specific legal system for the responsibility of the employer and the electronic authentication provider to clarify all the ambiguities to which electronic banking operations are exposed to in order to create an independent and sustainable legislative environment for all the rapid technological development.
The Possibility of Addressing Mandatory Rules and Its Adjustments in the Framework of International Commercial Arbitration
Mandatory rules are rules that apply to disregard the law chosen by the parties in their agreement. In this article, we will examine and address the role of international commercial arbitration and arbitrators when facing issues related to mandatory rules. It should be stated that mandatory rules pose conflicts for arbitrators because they place the state’s and the parties’ interests in competition. This highlights the main issue of whether the arbitrator should apply the related law when the parties’ agreement does not include this law. In other words, what should the arbitrator do in this case? The answer to this issue varies due to the variety of ways in which the “nature of arbitration” might be legally interpreted. However, a practical solution is needed. In order to reach a practical solution, the author will assess, from a normative approach, the relative benefits of various methodological techniques and their adjustments that are now in use. Then finally, conclusions will be reached regarding the approach and methodological techniques that best balance the parties' interests.
Predictable Irrationality in Mediation: Observations on Behavioural Economics
In my paper I attempt to provide a common intersection of mediation and behavioural economics. In doing so, I seek to identify the answers that can be used to assign the domain of mediation methodology where theorems of man's decisions of behavioural economics are validated. I seek to identify the answers that can be used to the domain of mediation methodology where behavioural economics can be applied to the theorems of man's choices. I do so in order to take account the phenomena behind human decisions, influencing them and determining their characteristics. Through this, I seek to prove the proposition that human behaviour is neither logical nor rational, a claim which plays an important role in mediation. Beyond this, the study discusses the statements of behavioural economics which also prove the above theorem. However, the aim of the paper is also to collide the results of behavioural economics with the practical experience of mediation, thereby answering the question whether theoretical results of behavioural economics on human decisions are validated in practice. The essence of mediation is to reach a favourable agreement, the in-process tool of which will influence human behaviour and decision-making towards this goal. In my study, accordingly, I intend to achieve the goal of naming the mediation techniques and tools that can be used to achieve the outcome of mediation that is a good agreement.
Philosophical Questions of the Relation to Goods in Antiquity and Scholastic Philosophy
This paper explores the early issues of the relation to goods in ancient and medieval philosophy trends. As an introduction to the topic, I examine the conditions for the emergence of Greek philosophical thinking. The paper is divided into two major sections: the first section introduces the ideas of ancient Greek philosophy on property and wealth, while the second one considers the development of the ideas of early medieval philosophy on the same topic. It should be pointed out that in ancient philosophy the subject was not given much prominence, since the concept of existence and virtue preceded the problems of property, wealth and distribution. Yet it is worth examining this period from this point of view, too, because regarding the relationship to wealth, we can find several important philosophical principles. I will present primarily the relevant medieval thoughts after discussing the relevant works of great figures of scholasticism. I will also discuss in detail the teachings of Duns Scotus, since it is primarily to him that we owe the most of his statements relevant to our subject of scholasticism. There is no doubt that the questions examined in this study are taking us closer to the definition of the content of common good. This is particularly true about Aristotle and St. Thomas, based on whose work these doctrines are also examined with distinguished attention. To sumup, we can say that questions on wealth distribution and the distribution of goods, in other words the ownership structure between the state and the individual are very much essential, since through them the content of the common good becomes tangible. The aim of my study is to support this assertion.
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Principles of European Family Law Regarding the Divorce by the Public Notary in Hungary
Thanks to the principles of the Commission on European Family Law on divorce law, extrajudicial divorce by mutual consent is becoming increasingly widespread in many European countries. The possibility of introducing this legal institution was also raised in Hungary in 2012 during the codification of the new Civil Code, but was ultimately rejected. The aim of this study is to examine the possibility of introducing divorce by the public notary as a possible alternative to divorce by mutual consent, in the light of the principles of European Union divorce law as well as the arguments and counter-arguments raised during the codification process.
Leasehold Payments from the Perspective of the Hungarian Chamber of Agriculture
In this study, the author presents and analyses the proportionality examination of leasehold contracts in the light of recent legislative changes from the viewpoint of the Hungarian Chamber of Agriculture, in this framework, the paper also deals with the practice of the agricultural administrative bodies. Starting from the relevant constitutional and statutory provisions, the study describes, through pragmatic examples, the obligations and possibilities of the Hungarian Chamber of Agriculture regarding the disproportionality of leasehold payments, as well as its emerging practice. The study concludes that the Hungarian Chamber of Agriculture is real support for agricultural administrative bodies in their procedures for determining the disproportionality of leasehold payments and that their decisions can reflect the value and interests of agriculture, as enshrined in law.
Messages of Personal Identity Attempt in Foreign Criminal Rules
Research worldwide and in our country (Hungary) have revealed that false personal identities play a prominent role in “justizmord” cases. That is why it is worthwhile having a closer look at identity rules and methodologies of other countries in this respect as well. In this study, the author examines the Slovenian, Austrian, Swiss, Serbian, Croatian, and distant (but, as it turns out, much the same) Turkish norms, all embedded in the continental legal system just like the Hungarian ones. Based on the legal details and implementation recommendations there, the researcher formulates at the end of his study the lessons learned from the models, the legal and forensic development opportunities available to us, the conclusions for efficiency and fairness, and the current and future messages to legislators and practitioners.
A Review of the MFS Regulatory Framework to Control IFF in Bangladesh
Mobile financial services (MFS), with their focus on technology and ease of use, have emerged as a novel approach for developing countries to address the problem of adopting best practices to promote financial inclusivity. However, if there are no effective regulations or guidelines in place on a national and international level, the purpose of achieving full financial inclusion and the Sustainable Development Goals might go in vain. For instance, to prevent illicit financial flow (IFF) and ensure that this financial system operates properly, the central bank of Bangladesh, one of the world’s fastest-developing nations, implemented the most recent MFS rule. However, a number of MFS-related fraud incidents have prompted scholars to critically assess the Bangladesh Bank’s (BB) MFS regulatory system with a focus on the efficiency of IFF prevention. This study has demonstrated that the current regulatory system has a weak KYC verification system using a comparative methodology. Following that, if someone has access to someone’s personal information, they also have access to their MFS accounts. In general, the current MFS adheres to a risk-based regulatory paradigm that forces regulators to wait until a hazard occurs and limits them to this legal framework. Policy makers would then be advised by this study to implement a smart regulatory approach in order to establish a climate that is anti-IFF.
The Principle of Protecting the Best Interests of the Child in Vietnamese Divorce Law
Divorce can have adverse effects on children in many ways, which has been extensively studied and demonstrated in scientific literature worldwide. Therefore, policymakers around the world, including Vietnam, have incorporated the principle of protecting the best interests of the child into their approach to addressing issues related to children during the process of their parents' divorce. This incorporation aims to reduce the negative impact of divorce on children and create a favorable environment for their comprehensive development. This article approaches the subject from the perspective of children's rights. Its objective is to introduce the application of the principle of safeguarding the best interests of children in the enactment and enforcement of divorce laws in Vietnam. It focuses on aspects such as determining the custodial parent, child visitation, child support, and changing the custodial parent
Digital Contract in the Emerging Economy of the 21st Century: A Comparative Study
In business processes or even our everyday life, the law of contract and proper enforcement of such law play a very significant role. The emerging economy, which is now dependent on the digital world phenomenon, is becoming electronic-based. The era of the internet and social networking is making people decentralized and self-regulated, which attracts online selling and purchasing. So, this is actually the sign of expanding electronic commerce, which makes products more available to the consumers. In this situation, the E-Contract is an aid to drafting and negotiating successful contracts for consumers, businesses, and other related services. It is designed to assist people in formulating and implementing commercial contract policies within e-businesses. As the electronic contract is not a paper-based contract but rather related to cyberspace, there must be specification provisions about such contracts. But in reality, there is a lack of provisions on the formation and regulation of electronic contracts. In developing economies, in countries like Bangladesh, the computerized generation needs more protection, but in many, judgments do not allow computerized documents and even the Information Technology Act, Contract Act, and Evidence Act do not wholly justify electronic contracts. In this paper the legal challenges of electronic contracts will be in focus. The real situation of contract law regarding the electronic contract in the context of Bangladesh compared to other countries will be focused on. The main purpose of this paper is to explore more possible functionalities of e-contracts and ascertain the legal implications.
A Comparative Analysis of Child Custody and Access Rights After Divorce or Separation in Kenya and England
This study examines the laws and practices surrounding child custody and access rights in Kenya and England following divorce or separation. Its goal is to identify similarities and differences in both countries' legal frameworks and social practices governing these issues. The research methodology employed for this study includes reviewing existing literature such as statutes, case law, and academic papers. The study has discovered that while there are some similarities in the legal frameworks governing child custody and access rights in Kenya and England, there are also significant differences in the legal principles and social practices that inform these frameworks. Various factors, including cultural norms, socioeconomic status, and the role of the family in society, influence these differences. In conclusion, the study suggests that further research is necessary to understand how these differences affect parents and children in both jurisdictions. Additionally, it recommends developing more effective legal and social policies to support families after divorce or separation.
Home Birth from a Comparative Legal Perspective
The reproductive rights of women touch upon healthcare provided during childbirth, which involve freedom of choice of the place of childbirth. Thus, the issue of home birth is of interest among the legislators, which may be interpreted as part of an ”obligation” posed by international legal documents to ensure that respectful care is provided to women during the whole time of pregnancy. However, currently, there is no evident European consensus on how home birth shall be regulated thus, the legal approach is different among European states. The decision-making of the European Court on Human Rights has influenced domestic legislation, especially in Hungary (Ternovszky v. Hungary case), however, there was a completely different outcome in the Czech Republic in a factually very similar case (Dubská and Krejzová v. Czech Republic). Accurately, what is the woman’s role during childbirth? One model suggests that she is the passive side, and the physician has the main role in successfully conducting the birth. The other model follows the ideal, that childbirth is centred around the woman, and her competency in her body and mind makes her the one in control. Nevertheless, alternative birthing methods are not newfangled in some countries such as the Netherlands, where traditional midwife-supervised home birth can be carried out if a woman chooses so, unlike in Slovakia where this freedom of choice is not evident and discouraged by the legislators. This study tries to shed light on why legislation on this issue is so different in these European states.
Comparison of the Provisions of the Austrian and German Criminal Procedure Laws on Victims with the Hungarian Legislation
Victims are necessary participants in the criminal process, but until the 20th century they were marginalised. Since then legislators have recognised the importance of victim protection. The Council of Europe and the European Union are also striving to regulate victims' rights and to establish minimum standards, naturally with special emphasis on the rights and protection of the most vulnerable victims. The preamble of the Hungarian Criminal Procedure Act treats the increased protection of victims and the enforcement of their rights as a priority objective. In my study, I will compare the provisions of the Hungarian Criminal Procedure Act with the provisions of the Austrian and German laws on victims. I have chosen these two countries for the comparison because the Hungarian legal system, due to its historical traditions is the closest to them. I believe that it is primarily the practice of these two countries that should be examined and compared with Hungarian legislation.
Title 42 and the Impact on Asylum Seekers: Exploring the Effects of its Termination and its Changes on the US Immigration System
The repeal of Title 42, an emergency immigration restriction, represents a significant policy shift in how the United States treats migrants who arrive at the southern border, particularly those seeking asylum. For over three years, U.S. border officers used Title 42 to deport hundreds of thousands of migrants to Mexico or their home countries, claiming that their presence could contribute to the spread of the coronavirus. While Title 42 is allegedly a public health policy, it has been utilized to regulate and prevent unauthorized border crossings. Democrats and campaigners have denounced title 42 because it prevents refugees from obtaining asylum, a legal right they normally have once they reach US territory. Republicans described it as an effective border control tool, requesting that Title 42 should be codified into law so that it may be utilized outside of the pandemic setting. The period of Title 42 ended, which created more obstacles than solutions for asylum seekers. As the US ends Title 42, the rules for asylum seeking are changing once again, the United States will revert to Title 8 under the new standards. The Title 8 Code outlines a strict asylum policy which makes it harder for immigrants to file claims and to seek asylum. Under this new regulation everyone coming from Latin-America, except for Mexico, has to face the harsh reality that the requirements of Title 8 make most of them ineligible for asylum. How does the repealing of Title 42 affect the US immigration system and how will it influence the 2024 elections as the termination was introduced at a critical time, when Biden is seeking a second term?
Questions of Interpretation of Certain Preconditions for Criminal Sanctions Against Legal Persons
In this study, the author analyses the conditions for the application of criminal law measures against legal persons. Despite the fact that legal persons are often involved in criminal activities, relatively few legal persons are actually prosecuted. One possible reason for this, according to the author, is that Act CIV of 2001 on criminal measures against legal persons (CMALP Act) sets out a wide range of conditions for a legal person to be subject to criminal measures. In the present study, the author provides a practical analysis of each of these conditions, covering the scope of the CMALP Act and the conditions explicitly mentioned in the CMALP Act.
The Modernity and Legal Unification of the Portuguese-Spanish-Ibero-American Legal Culture in the 19th and 20th Centuries
The topic of legal culture[1] is much broader and more comprehensive than its richness of thought could be perceived in the context of an article. Connecting law to the concept of culture is a relatively recent phenomenon. The concept of culture dating from the middle of the 19th century and still accepted today is that culture means everything that has been created through the physical and mental work of human society. At the beginning of the 20th century, German jurist Kohler regarded contribution to the advancement of culture as the most important task of law and jurisprudence. For him, law is a creative science which evolves to satisfy the needs of society. Professor Radbruch from Germany defined law as a cultural power, a component of culture. Zjelmann saw the main value of comparing laws in that it allows law to be perceived as a cultural phenomenon.