Institute of State and Law of the Academy of Sciences of the Czech Republic
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A web hosting contract is one of the most important types of electronic contract, as it governs the relationship between the web hosting contractor and the user. The web hosting contractor undertakes storage of data and information for clients and provides the technical means to enable them to access this storage online. In this case, the web hosting provider acts as a neutral intermediary in the transmission of information, without being responsible for its content, although it is responsible for any breach of the contract, or the hosting of illegal content. Consequently, it acts as a lessor for a space on the network. Due to the lack of any legal framework governing this relationship in either Egypt or Iraq, this type of contracts raises many legal questions. The study concludes with some recommendations for further studies.
LEGAL PROTECTION OF WORKERS FROM MORAL HARASSMENT IN THE WORKPLACES: A COMPARATIVE STUDY OF THE UAE LAW AND FRENCH LAW
The study tackles the worker’s protection under the purview of criminal and civil laws from harassment in the workplace. The researchers point out that the UAE legislator has not addressed moral harassment in the workplace either in the Penal Law or in the Regulation of Labor Relations. Meanwhile, the French legislator criminalizes moral harassment acts in the French Penal Law and regulates that in the respective labor law. This motivates us to examine this subject with sights set to have this study as a proposal for the UAE legislator to draft provisions that criminalize moral harassment in the workplace. This study provides the punishment prescribed for this crime. It also describes this act in the Labor Law to determine the procedures set to protect the victims from harassment, to empower them to receive fair compensation, and to prevent the employer from harassing workers to push them to abandon work.
THE STRANGE CASE OF ITALIAN CRIMINAL PROSECUTION
Mandatory prosecution doesn’t mean automatic sequentiality between the report of crime and trial, not even the duty of the prosecutor to start the trial for any “notitia criminis” when it is objectively superfluous. This rule places preliminary investigations outside the scope of the trial, establishing that, at their outcome, the obligation to prosecute arises only if the lack of the conditions that make it necessary to dismiss a case has been verified: in the circumstance of doubt, the prosecution must be exercised and not omitted. A reckless use of the criminal initiative can have negative consequences on the social, economic, family, political and health status of the suspected, or defendant. Consequences that aren’t remedied by an acquittal sentence that often is pronounced years later. In various democratic countries, the rules about the exercise of criminal prosecution are also specifically aimed at preventing trials that aren’t based on solid evidence in a way to avoid that citizens may be seriously damaged by this. On these assumptions arises the need to understand if the mandatory prosecution is still a principle respected in the actual Italian legal system.
THE FRAGMENTED REGULATION OF TRANSFER SYSTEM IN SPORTS – A HALF-WAY TO SLAVERY?
This article deals with remaining restrictions of free movement of players between sports clubs due to specifics of the transfer system. The article argues that the famous Bosman case has not liberated players yet. They remain assets of clubs. The transfer system is a product of sports associations’ regulations. Transfer rules are binding for players by virtue of their contracts. Athletes are members of sports associations and have no choice but to accept their quasi-legislative rules. The article describes the environment of excessive compensations required for transfers of players in football and ice-hockey, restricting their free choice to find another alternative club. These situations are evaluated from the European, international and national perspective
HARMONIZATION OF AUTOMOBILE EMISSION STANDARDS UNDER EU LAW
The road transport sector remains a major contributor to smog that is of particular concern in big European cities. The EU member states are to manage air quality in line with in the Air Quality Directive (dir. 2008/50/EC) that put forward local air quality targets. For this purpose, there are specific legal instruments to be applied by local authorities i.e. low emission zones, pedestrian zones, ‘car-free days’, etc. In joined cases: T-339/16, T 352/16, T-391/16 Paris, Bruxelles and Madrid successfully questioned the EU harmonising legislation (reg. 2016/646/EU) on pollutant emissions from light passenger and commercial vehicles.2 This regulation was intended to facilitate the sale of motor vehicles in the EU market, however it was incompliant with Euro 6 standard (reg. 715/2007/EC). This work revolves around the implicit conflict between regulatory autonomy of the European cities to enact domestic legislation in order to comply with their obligations under Air Quality Directive and on the other side - Framework Directive for the Approval of Motor Vehicles (dir. 2007/46/EC) and its secondary ‘regulatory acts’ that all together constitute the automotive market surveillance system of the European Commission. The article concludes that, cities may become champions for environmental protection, (since they already have standing under Article 263 (4) of the Treaty on the Functioning of the EU), if the Commission fails to impose stringent automobile emission standards
SERVICE OF WRITTEN DOCUMENTS TO EMPLOYEE DURING THEIR TEMPORARY INCAPACITY FOR WORK
The article deals with the issue of serving written documents during the employee’s temporary incapacity for work in the conditions of the Slovak Republic. The author points to the issues occurring when the place of the employee’s stay during their temporary incapacity for work differs from their address hitherto known to their employer. The given issue has been analysed by the author from the perspective of the term “address for service”, in connection with which the Slovak legislation explicitly imposes the notification obligation on the employee. Following the given difference between the Slovak and Czech legislation, the author investigates the possibilities of application of Czech Decision R 25/2016 in the conditions of the Slovak Republic.
GLOBALIZATION, COVID-19 PANDEMIC AND WHITE COLLAR CRIME: A NEW THREATENING COMBINATION
In the modern world the phenomenon of economic globalization directly effects developments of law across various jurisdictions and effects the forms of white collar criminality in particular. The term “white collar crime” is proven to be ambiguous and not informative on what exactly types of criminal behavior this phrase should encompass. As globalization trends further gain momentum, national economies are becoming more internationalized and inter-dependent, and regulatory powers of individual states become diminished. During the COVID-19 pandemic era, as nations simultaneously cooperate and compete in efforts to create vaccine, enhance national public healthcare regimes, regulate border control and passenger traffic, fraudulent behavior becomes more aggressive as white collar criminals operate on a bigger scale than ever before. Analyses of these issues related to economic crime in the globalized pandemic-effected environment and identification of right solutions for this challenge constitute major focus of this work.
WORK-LIFE BALANCE IN THE LIGHT OF THE DIRECTIVE (EU) 2019/1158 ON THE EXAMPLE OF JOB-SHARING IN ACCORDANCE WITH THE CZECH LABOUR CODE
The paper deals with selected practical aspects of reconciliation of family and professional life. In this context, it analyses work-life balance, recently re-regulated on the supranational level, as both an interdisciplinary and a multidimensional phenomenon. The main aim is to emphasize its mutual relations manifesting as for flexible working arrangements, constantly a very significant instrument of the EU labour law. For these purposes, the text summarizes legal requirements for job-sharing laid down in the Czech Labour Code, as one of the means in order to reach the indicated balance. Furthermore, it proceeds to focus on the duty to substitute an absent employee. The comparison of relevant regulation with German and Slovak jurisdictions provides with the basis for conclusions concerning substantially differing approaches.
THE CONSTITUTIONAL COURT OF JORDAN AND ITS RELATION TO ORDINARY COURTS
The principle of the supremacy of the Constitution is universal adopted by most international constitutions, including the Jordanian constitution. The latter requires a certain legal mechanism to protect it which is conducted by overseeing the constitutionality of laws. Ordinary courts controlled the constitutionality of laws under Jordan’s 1952 Constitution, but they were only a no-action oversight. This was the case until the Constitutional Court was established on 6th October 2012 to oversee the constitutionality of the laws and regulations and to interpret the provisions of the Constitution. The relationship between ordinary courts and the control over the constitutionality of the laws has not been severed, as the Constitution and the Constitutional Court Law have maintained this relationship. The latter begins with the case court referring any plea of unconstitutionality to the Court of Cassation, which in turn refers it to the Constitutional Court if it deems that the plea is serious and fulfills its formal and objective conditions. Consequently, the ordinary judiciary (ordinary courts) remained the necessary link between the person who has an interest in the substantive case and the Constitutional Court, which does not accept any direct appeal except from official bodies exclusively specified by the constitution and the law, namely the Senate, Parliament and Council of Ministers. This calls for the adoption of a new mechanism that allows individuals to have direct access to the Constitutional Court in order to protect their constitutional rights.
HISTORY OF MANDATORY PREMARITAL HEALTH EXAMINATIONS
The study is an insight into the legal regulation of mandatory premarital health examinations in chosen European countries (Germany, France, Hungary) in the 20th century, and in the case of France even in the 21st century. There were no obligatory premarital health checkups in Slovakia (1939–1945) and Czechoslovakia (1918–1938, 1945–1989). However, as the reader can notice, the relevant expert discussion was on a relatively high level.
JUDICIAL REVIEW OF THE ACTS OF THE EUROPEAN PUBLIC PROSECUTOR’S OFFICE – POSSIBLE SHORTCOMINGS AND SEVERAL CONSIDERATIONS IN RELATION TO THE SLOVAK REPUBLIC AND ITS LEGISLATION
Creation of the European Public Prosecutor’s Office was from its very beginning accompanied by a wide-ranging debate regarding the most challenging issues, one of them being judicial review of its acts. This article deliberates on several groups of these acts and their review by either national courts or Court of Justice of the European Union. Where appropriate, in analyses their review in relation to the Slovak Republic. As a conclusion, it offers several considerations as to the Member States’ obligation to provide for effective judicial protection.
PRAGUE SUMMER SCHOOL ON IMMIGRATION AND ASYLUM LAW FOR THE THIRD TIME! SUMMER SCHOOL FOR PHD CANDIDATES AND SENIOR MASTER STUDENTS, SEPTEMBER 13–16th 2021
THE CRIME OF ASSAULT ON MEANS OF TRANSPORTATIONAND NAVIGATIONAL FACILITIES AS A TERRORISM OFFENCE IN THE UAE AND JORDANIAN LEGISLATION. COMPARATIVE ANALYTICAL STUDY
There is no doubt that the crimes of hijacking of aircraft and ships and assaults on land means of transportation and navigational facilities are terrorism offences that are among the most serious and threatening for individuals’ safety and security. Aircraft, ships, and trains are the most widely used means of transportation; therefore, they should be safe and protected against any terrorist act, and a severe penalty should be imposed on whoever commits such crimes. Therefore, this study aims to clarify how Emirati and Jordanian legislators have addressed these types of crime, and whether or not they addressed them in harmony with the international community’s vision in combating terrorism offences. By end of this study, it is concluded that Emirati and Jordanian legislators have considered such types of crime as terrorism offences, and they have imposed severe penalties that are commensurate with the severity and seriousness of the criminal act committed, and that the two countries are in complete harmony with the international community’s vision in combating and reducing terrorism offences. The study concludes with a set of outcomes and recommendations.
COMPARISON OF THE REGULATION OF CONTRACTUAL PENALTIES AND RELATED QUESTIONS IN THE CZECH AND POLISH LEGAL ORDERS
This article deals with the presentation of the contractual penalty concept which is regulated in the Czech as well as Polish Civil Code. Then the two are compared, namely their individual aspects, in regard to the aforementioned measure within both legal systems. The first part primarily focuses on the interpretation of the content of measures of contractual penalty and the identification of elementary differences. What follows is the analysis of the functions of contractual penalties, again with emphasis on the comparison of the function of the Czech and Polish contractual penalties. The next part deals with the relationship of the contractual penalty with damages. This stage then deals with to what extent the contractual latitude may be applied in the Polish legal system when setting up the contractual conditions for the application of contractual penalty as well as the compensation of damages resulting from violation of obligation. In conclusion there are presented measures similar to contractual penalty such as penalties and interest on late payments, especially from the Polish legal code’s point of view.
YES OR NO TO SEX OFFENDER REGISTRIES? LESSONS FOR BOSNIA AND HERZEGOVINA
The establishment of sex offender registries is the standardized approach in modern criminal legislation to prevent recidivism of sex offenders. Even though they still have not been introduced in some countries, as a whole, they are not a new approach in criminal law. However, for the states that have introduced sex registries, there are reasonable questions: have sex offender registries accomplished their aim in these states and is their establishment the correct approach – having in mind that they can bring about an interesting dichotomy. After being punished, sex offenders should be reintegrated into society, whereas, the registries themselves can pull an individual into the criminal zone again, as they are not able to be socially integrated. The aim of this article is to question these issues, to analyze them, and to present lessons that can be learned for Bosnia and Herzegovina, a state that in recent years began a discussion of whether to introduce sex offender registries. Unfortunately due to Bosnia and Herzegovina’s specific internal state organization, division of legal jurisdictions, and a general lack of understanding for this tool, it is dealing with an unbalanced establishment and a lack of legal regulations for sex offender registries.
This paper deals with the current global situation of and with actual trials arising from it for different branches of human activities. In particular, the paper inquires about the possible role of private law to become the integral part of the process of essential changes of the human society. In authors opinion, the answer to this question should be affirmative. Author considers the relatively broad potential of private law to contribute to the further development of (not only Czech) society towards the achievement of both social and environmental dimension of society, in other words, towards the “responsible society”. Subsequently, author considers, how the different parts of the structure of the private law can contribute to the achievement of this goals.
CRIMINALISATION OF FORCED MARRIAGE IN UKRAINE (IN BRIEF COMPARISON WITH OTHER EUROPEAN COUNTRIES)
The paper is devoted to the issues of criminalisation of forcing to marriage. The author considered a lot of criminal-legal sources, which provide a responsibility for the mentioned socially dangerous phenomenon, all over Europe. A significant part of the manuscript covers a juridical analysis of a crime provided by Article 151-2 of the Criminal code of Ukraine in force. The author, according to his opinion, takes under consideration some burning questions which make incorrect qualification and use of the aforecited norm. A certain place in the paper is allocated for the analysis of foreign criminal legislation for combating coercion to marriage. So, the author has made EU criminal legislation review concerning the anti-forced marriage campaign and separately displayed criminal-legal approaches to resist forced marriage within other European territories which are not EU members. There was briefly revealed the reaction of EU countries for signing and ratification of appropriate EC Convention.
“Black swans” represent major adverse events having tremendous consequences that are prospectively (though not retrospectively) unpredictable. Fact is that the existing law may provide for certain measures that will be able to cope with some of the consequences of a “black swan”. However, due to the unpredictable nature of “black swans”, their ex ante regulation by the means of law seems to be not entirely possible. This article aims to address – in the light of the COVID-19 pandemic – mutual relations between the features of “black swans” and administrative law.
ON SOME ISSUES OF PROVIDING URGENT HEALTH CARE IN THE BORDER AREA OF THE CZECH REPUBLIC AND THE FEDERAL REPUBLIC OF GERMANY IN THE LIGHT OF THE CURRENT NATIONAL AND INTERNATIONAL REGULATIONS
The article is aimed at providing health services with a cross-border element. Closer attention is paid to cross-border cooperation in the field of emergency medical services on the Czech-German border. The legal regulation in this area was significantly modified together with the adoption of the Framework Agreement between the Czech Republic and the Federal Republic of Germany on cross-border cooperation in the field of emergency medical services. This agreement is aimed at strengthening and streamlining cooperation in the provision of urgent pre-hospital care. In addition to the initial definition of the issue, the article focuses mainly on the issue of so-called transfer of patients at the border and on the possibility of choosing a patient among the providers of emergency medical services, respectively downstream providers of acute inpatient care. The issue will be outlined in more detail, especially from the perspective of the Czech emergency medical service. In all cases, these are procedures that arouse the long-term interest of the professional and lay public.
THE UNIVERSALITY OF HUMAN RIGHTS AGAINST CULTURAL RELATIVISM: BETWEEN FICTION AND REALITY
This paper aspires to defend the universality of human rights against cultural relativism. The relativism claims that human rights are not universal enough, but even if they were, it would not imply they should always prevail over other moral or legal norms. This paper advocates the opposite: the human right corpus is universal enough because it has been drafted and approved by representatives of all cultures which are dominant in the current globalized world in the context of actual or latent international political conflicts. The intercultural consensus on human rights is overlapping, i.e., the human rights corpus contributes to realizing the comprehensive doctrines of good that are held in all participating cultures. Although the consensus on human rights does not inevitably lead to a uniform moral and legal practice, it also plays a crucial role in a purely declaratory level – it creates a common language through which various cultures can conceptualize their different moral and legal attitudes. Therefore, the language of human rights should take at least prima facie precedence over other moral systems whether stemming from a religion or a particular moral or political philosophy.
THE LIBERAL JUDICIAL INTERPRETATION OF NUISANCE FOR THE PROTECTION OF THE ENVIRONMENT: AN ANALYTICAL STUDY IN THE FRENCH JURISPRUDENCE
Scientific reports have warned against the widespread of the environmental damages resulting from the use of utility poles, nuclear plants, and other industrial establishments. This poses a lot of legal issues with regard to the liberal interpretation of courts to the tort of nuisance as a basis on which the neighbors of those sources of pollution can establish their claims for compensation regardless of the degree of geographical proximity between the injured party and the source of pollution and regardless of the nature of this source. This article discusses the liberal interpretation of nuisance as a basis for environmental liability.
THE PRINCIPLE OF THE PUBLIC OF CRIMINAL PROCEEDINGS AS AN ATTRIBUTE OF THE RIGHT TO A FAIR TRIAL
This paper deals with one of the basic principles of criminal proceedings - the principle of the public, which is an important guarantee of the fairness of criminal proceedings. This fundamental principle of the criminal process is viewed by doctrinal, normative and judiciary views. Firstly, the principle of the public is discussed in general. There are three important components of the principle of the public, namely public participation in the court hearing, the requirement for public declaration of merit decision and finally the right of the public to information about criminal proceedings.
Prague Law Working Papers Series No II/2021 – New issue of Charles University in Prague Faculty of Law Research Papers
The third year of the doctoral private law conference entitled Civilistic Pub, this year at the Representation, Prague, June 25, 2021
Bratislava Legal Forum 2021. Online International Academic Conference held by Comenius University in Bratislava, Faculty of Law
RULE OF LAW AND PANDEMIC. THE ITALIAN STRATEGY FOR MANAGING COVID-19 EPIDEMIOLOGICAL EMERGENCY
The contribution examines the most significant stages of the Italian strategy for managing the Covid-19 epidemiological emergency, through the analysis of the main legislative and administrative acts issued by the Government and by Regional and Local Authorities to face the crisis. The analysis aims to demonstrate that the powers of the competent Authorities have not been exercised in compliance with the principle of loyal collaboration, which inspires the relations between center and periphery. On a practical level, the ordinances issued by the Regional and Local Authorities have imposed more restrictive mitigation measures in their respective territories, overlapping the provisions of the Central Government and compromising the unitary strategy for managing the crisis.
RETHINKING THE RELATIONSHIP BETWEEN THE ENFORCEABILITY OF PENALTY CLAUSES AND THE DEBTOR’S FAULT IN BREACH OF HIS/HER OBLIGATION UNDER SWISS LAW
Despite the lack of an explicit provision within the Swiss Code of Obligations (OR), the considerable majority of the Swiss doctrine as well as the Federal Court accept that contractual penalty shall be paid if and only if the debtor’s breach is based on his/her fault. In this paper, we question such dogma and analyze the wording and purposes of Articles 161/2 and 163/2 of the Swiss Code of Obligations by taking their historical background into account. We argue that unless otherwise agreed by the parties, the debtor’s obligation to pay the penalty shall be deemed independent of his/her fault.
THE IMPACT OF THE DOCTRINE OF FORUM NON CONVENIENS ON NATIONALITY CRITERION IN THE LIGHT OF PALESTINIAN CIVIL AND COMMERCIAL PROCEDURES LAW: THE CASE OF PALESTINIANS WITH RESIDENCY IN ISRAEL
This paper explores the doctrine of forum non conveniens as it serves those resident in Israel with Palestinian nationality and Israeli identity cards. These Palestinians are situated under the jurisdiction of the Palestinian court, regardless of whether the plaintiff ’s nationality is Palestinian or foreign. It is important to note that the doctrine is less useful for a foreign plaintiff;1 however, this notation also applies to a lesser degree to Palestinian plaintiffs, as they enjoy the merits of the doctrine when instituting litigation in Palestinian courts, despite the impossibility of executing Palestinian decisions in the Israeli legal system. Thus, a “Palestinian” person, in this paper, faces the dilemma of having a Palestinian passport and nationality, but an Israeli identity.
THE SUPERVISION IN THE AREA OF ANTI-MONEY LAUNDERING (AML) IN RELATION TO LEGAL AND ADVISORY PROFESSIONALS
The article deals with the situation of legal and advisory professionals as obliged entities according to the legal framework of anti-money laundering (AML) and counter-terrorism financing (CTF) measures, and specifically with the supervision of these obliged entities. In this article, the authors pay special attention to the differences of these independent professionals (especially their obligation of confidentiality), the reasons for their inclusion into the scope of obliged entities, and their level of risk in the AML field. The supervision of these obliged entities is assessed in relation to the legal framework in effect until the end of 2020, the legal framework given by the amendment to the Czech AML Act, and de lege ferenda. Moreover, the article reflects the knowledge gained in practice and the problems detected during the application of AML measures in relation to the legal and advisory professionals, relevant cases, and comparison of legal frameworks in different jurisdictions.
ALTERNATIVE OR NONSTANDARD FORMS OF PARENTHOOD IN THE CONTEXT OF REPRODUCTIVE TECHNOLOGIES
In the last decades, various forms of parenthood (alternative, non-standard) have been discussed as an important topic. The attention of human sciences experts is particularly focused on the quality of life of a child growing up in such a family. It is evaluated whether there is a reason for not accepting such a family constellation. The ways of creating such a family formations are rarely discussed, although they play an important role in the quality of life of children, families and the whole society. Ways to create such families are patchwork families, adoption, foster care and 3rd party reproduction. Our text concentrates mainly on using reproductive technologies. Alternative family formations have always emerged and will emerge in the future. However, our analysis shows that the institutional support of their creation (creation, not their functioning) brings serious legal, ethical and psychosocial problems, for example, trafficking in body parts, women and children.