EU law states that protection against discrimination arising in employment and employment extends to all grounds provided for by non-discrimination directives adopted in 2000. The scientists have ...found that the level of discrimination has significant differences depending on the country, as well as in relation to different minority groups. The European Court of Human Rights (ECtHR) has consolidated the status of an influential international court and by its decisions can affect the field of employment and at the moment plays the role of an extremely important figure in the development of human rights in Europe and abroad.
The main purpose of this research is to study the practice of ECtHR to combat discrimination in employment and employment relations, because today discrimination, despite its ban at the national and international levels, remains in almost all spheres of public life and hinders the provision of equal rights. In its case-law, the Court has developed arguments concerning the direct protection of human rights, its fundamental freedoms, where discrimination is prohibited in all spheres of public relations.
The main method of research was a historical, legal, theoretical and comparative analysis of ECtHR practice.
The previous allocation of discrimination in this area on the basis of race and gender was significantly expanded by issues of gender identity, religion, sexual orientation, which is caused by the development of social relations in the labor market.
The article highlights measures aimed at combating and predisposing discrimination in the field of employment.
Two paradigms are dominant in the international discourse on the System of Case Guiding ('SCG'). The first 'transplantation' paradigm posits that the SCG is a straightforward transplant of the ...Anglo-American system of common law. The second 'hybridisation' paradigm views the SCG as a distinct but inferior common law, held back by its 'Chinese characteristics'. These paradigms are challenged as being partial, outdated and inaccurate accounts of the SCG on two tiers. On a comparative and theoretical tier, this article builds upon the foundations of three concepts to mount its sustained critique. First, preferring Teubner's description of legal change and reform as proceeding by legal 'irritation', it is argued that the notion of 'transplantation' is too blunt an account of how contemporary legal reform within the People's Republic of China ('PRC') has sought to learn from and build upon the experiences of other legal systems. Second, accepting Santos's call for a decentred approach to globalisation, the development of the SCG is situated foremost within its local context, instead of by reference to foreign systems of precedent. In doing so, this article moves beyond the old paradigms of 'transplantation' and 'hybridisation' towards a recognition of the distinctiveness of the SCG as an autochthonous innovation of the Chinese legal community that has been precisely tailored to its unique conditions. Third and finally, applying the concept of legal plurality to the practice of using Guiding Cases and precedent more generally, it is recognised that the development of the SCG has been driven, not only by the top-down actions of the Supreme People's Court ('SPC'), but also by its synergistic interaction with the bottom-up use of precedent by the wider legal community of litigants and legal professionals. Freed from the conceptual burdens of these two paradigms, this article proceeds to advance this theoretical basis for understanding the SCG by reference to an empirical analysis of three Guiding Cases - Numbers 24, 15 and 9. The first two are the most highly cited Guiding Cases; the third was one of the most often cited Guiding Cases as well, before losing its guiding effect. By reference to these three case studies, which involved analysing 939 judicial decisions, this article constructs a pluralistic account of the evolving judicial practice of referencing Guiding Cases. First, it is found that the distinctiveness of the SCG stems from the referent function of Guiding Cases, which is at the core of its judicial practice. This referent function is evident from the vast majority of judicial decisions that cite or refer to one of the three Guiding Cases as a formal authority for reaching their conclusion, without more. Second, however, it is also found that while this function of Guiding Cases might be the dominant form of judicial practice at this moment, this practice is not monolithic and is in fact changing at the margins. A small minority of cases since 2016 are illustrative of the potential trajectories of evolution for the next ten years of the SCG and the judicial practice of referencing Guiding Cases. These cases have evinced a greater willingness by courts to engage more meaningfully with precedent-based forms of reasoning, such as arguing from the facts of a case and arguing from the principles stated therein. This greater engagement has not only been driven by top-down mandates to search for and reference a wider variety of cases beyond Guiding Cases, but has also been driven by the bottom-up use of precedents by litigants in presenting their legal arguments before the courts. While these marginal practices are still in their infancy, the empirical analysis provides evidence of a complex, complicated and pluralistic practice of greater and more substantial reliance on Guiding Cases within the PRC.
(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1645-1661 | Article | (Table of Contents) I. Introduction. – II. Law-making capacity as an expression of ...sovereignty. – III. The participation of international organizations in the formation of customary international law. – III.1. Overview. – III.2. Whose practice? – III.3. Which norms? – III.4. Conclusion. – IV. The practice of the EU and its relevance in the creation of customary international law. – IV.1. Overview. – IV.2. Legislative practice of the Union. – IV.3. Judicial practice of the CJEU. – IV.4. Positions taken by the Commission in (quasi-)judicial proceedings. – V. Conclusions. | (Abstract) This Article argues that the ability of the European Union to participate in the creation of customary international law curtails the sovereignty of its Member States. First, it shows that authority to participate in norm-creation constitutes a core aspect of sovereignty under international law. Second, it argues that the conduct of the European Union (as an international organization) may be determinative in ascertaining the existence and content of customary norms. However, that authority lacks an explicit basis in the treaties. Third, it asserts that this encompasses norms that are directly relevant for the Member States, potentially in circumstances outside of the scope of EU law. The Article then specifically discusses three types of acts of the Union and their relevance for the creation of customary international law, while providing examples that touch upon traditional inter-states relations. In particular, this concerns the legislative practice of the Union, the judicial practice of the Court of Justice of the European Union (CJEU) and public statements made by the Commission in (quasi-)judicial proceedings.
The presented article is dedicated to one of the special mechanisms of release from punishment in modern Georgian law – parole, it discusses the legal problems of using the benefit provided by this ...law, which is based on a deep analysis of practice and a small amount of scientific research, since the issue has not been thoroughly researched and has rarely been the subject of scientific research interest. The debate on the conditional release mechanism as an essential and necessary tool was initiated by the unfavourable state of the regulatory legislation, the existence of a heterogeneous practice on the part of the court, and the scarcity of modern Georgian juridical literature regarding the mentioned concept. This article aims to understand the parole mechanism in Georgia and in the example of some foreign countries, which will make the scientific research process even more interesting and diverse. It also aims to compare, evaluate and synthesize the results obtained from further research, including the mistakes of their usage in practice and the development of scientifically based recommendations to eliminate the mistakes in the parole regulations. Formal-logical, historical, formal-legal, dogmatic, comparative-legal, descriptive and systematic methods are used in researching the problem posed in a separate chapter of the article. The conclusions, provisions, and recommendations mentioned in the article can be used to improve the qualifications of the people interested in this topic and to find practical aid for the employees working in the field.
The positions of scholars on the concept of “judicial decision quality” have been examined. Criteria for a high-quality judicial decision include justice, timeliness, justification, clarity, clear ...language, and an accessible style. The researchers also distinguish between objective (legal training, legal experience, qualification requirements for judicial candidates, opportunities for practicing judges to improve their skills, mechanisms for monitoring the work of judges, unrestricted public access to judicial decisions, the role of legal science in analysing judicial decisions) and subjective (the judge’s personality, salary, social guarantees, working conditions and ability to organise their work) factors that affect the quality of a judicial decision. The summaries of judicial practice and analytical work on the application of the Supreme Court’s legislation focus on the following requirements for the quality of drafting and execution of court decisions in cases on administrative offences: execution of a judicial decision with strict compliance by the court with the requirements established by law to its form and content, compliance with the legislation on the language of legal proceedings. Normative legal acts aimed at developing a unified approach to understanding the quality of judicial decisions have been analysed. Requirements for determining the quality of a judicial decisiont are considered in the Conclusion of the Advisory Council of European Judges No. 11 (2008) on the quality of judicial decisions, including external environment – legislation and economic and social context (legislation, resources, actors in the judicial system and legal education), internal environment - professionalism, procedural rules, case consideration and decision-making (professionalism of the judge, procedural rules and case management, case consideration in court, elements inextricably linked to decision-making). Judicial decisions in cases of bullying in vocational education institutions adopted in accordance with the provisions of the Code of Ukraine on Administrative Offences are considered with regard to the presence or absence of requirements for the quality of judicial decisions. It has been established that a certain number of judgements do not have the components of judicial quality. Shortcomings of the current legislation on administrative offences have been highlighted. In particular, the outdated provisions of the Code of Ukraine on Administrative Offences; the absence of an article that would provide for the adoption of rulings by courts in the name of Ukraine in cases of administrative offences, etc. The article analyses the judicial decisions made by courts in the period from 2019 to 2021 in cases on administrative offences involving bullying of participants in the educational process in vocational education institutions in terms of their clarity (comprehensibility) and validity. It has been highlighted that most judicial decisions contain an exhaustive list of evidence in the case; the courts comply with the requirement to find out whether an administrative offence has been committed, whether the person is guilty of committing it, whether he or she is subject to administrative liability, etc..
In the current conditions of sanctions pressure and crisis phenomena, state regulation measures in the investment and construction sector should be aimed at preventing and eliminating contradictions ...and disputes between business entities, that is, the effectiveness of such measures must be assessed based on the ability to ensure conditions for conflict-free construction. At the same time, the concept of “conflict-free” does not mean the absence of disputes as such, but refers to the most constructive approaches to resolving disagreements, taking into account the interests of the participants in the relationship and the development priorities of the system as a whole. Of particular importance in achieving this goal is the activity of the judiciary in the field of forming a uniform judicial practice, focused on development priorities, as well as the application of judicial assistance technologies in the use of conciliation procedures in relation to construction disputes. Thus, the most significant recently developed positions relate to the extension of framework that is absent in the legislation, the interpretation of contract terms, the use of support measures and anti-sanction regulations, the peculiarities of bringing to responsibility for violation of urban planning standards and the consequences of non-compliance with mandatory requirements at the starting phase of the project. Analysis of approaches developed in judicial practice allows to identify risks associated with the implementation by public bodies (the prosecutor's office) of control and supervision functions. Assistance in the use of conciliation procedures, in turn, allows parties to use more flexible formats aimed at finding a mutually acceptable solution to a conflict situation within the court. At the same time, the problem of participation of public bodies in conciliation procedures remains relevant, significantly reducing their effectiveness.
III. Mediatio und superioritas Kintzinger, Martin
Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung,
06/2023, Letnik:
140, Številka:
1
Journal Article
Recenzirano
From the 12
century onwards, arbitration tribunals came into use and until the 15
century they were established as alternative legal practice. While the Roman Law became institutionalized as an ...instrument of political power, the arbitration tribunals retained their value as elements of noble communication in case of crisis within European realms. In international politics and law, arbitration tribunals were often brought into play, but failed to be successful as instrument of international conflict management.
The underlying premise of a global constitutional order is dictated by the singular, unitary nature of the environment, a deeply interdependent whole. This premise aside, international environmental ...law, as we know it today, is far from constituting an international constitutional order. Rather, it presents a broad set of principles and mixed legal and political commitments of states dispersed in a myriad of international instruments possessing varying degrees of formality, legal status, scope of regulation, and effect. Its unparalleled dispersion, organizational and regulatory flexibility, and overall indeterminate features of normative content and procedure are neither improbable nor inconceivable for a relatively new genre of international legal regulation, namely the environment. Simply put, a consolidated international legal order as it ordinarily exists in other arenas is missing in the case of the environment. In shaping its contents and effects, a new institutional ally is found in national and regional judicial bodies, which instead rely on human rights to ground their decisions in pursuit of climate goals and aspirations. The ensuing result is that framing the order that will govern the global environmental change, resort must be made to the models already fashioned by the practice of national and regional systems. Ultimately, this article proposes the principal parameters of a constitutional order for the environment.
Resumen En el fragmento 44 de Sobre la verdad, Antifonte realiza una seria crítica a la ley y a la práctica judicial ateniense en cuanto medio que promueve el odio y la realización de injusticias. ...Esto ha llevado a una buena parte de los especialistas a calificarlo como un negador del valor de las instituciones jurídicas. A partir de una revisión del pensamiento de Antifonte, el propósito de este trabajo es examinar la posibilidad de que los espacios de resolución de conflictos, antes que cargar por completo con un sentido negativo vinculado al odio y la injusticia, puedan ser beneficiosos.
