Consumer Bankruptcy – the Direction of Legislative Changes

Paweł Wrzaszcz

John Paul II Catholic University in Lublin

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Law and Forensic Science, Volume 16 (2018/2), pages 29-34.

Submitted: October 24, 2018

The author declares there is no conflict of interest.

Abstract:  The proposed changes in relation to consumer bankruptcy may constitute a revolutionary legislative change in relation to debtors. Liberalization of regulations in this area will lead to increased amounts of announced consumer bankruptcies. It seems, however, that the proposed changes disturb the balance between the need to protect the interests of creditors and support the legal protection of the debtor. The key is to determine whether State’s task is to protect creditors against insolvent debtors or to support unreliable debtors. Too loose the introduction of legislative changes can significantly reduce social morale and encourage citizens to take unfair actions. The author undertakes an attempt to critically evaluate the proposed changes, referring both to its positive aspects and negative aspects. At the same time, he points out those legal solutions that may have negative consequences for legal transactions, as well as may be subject to negative public perception.

Keywords: bankruptcy, consumer law, law reform

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A New Challenge to the Turkish Family Law Posed by Artificial Insemination: Validity and Consequences of Contract for Surrogate Motherhood

Eylem Apaydın

Kocaeli University

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Law and Forensic Science, Volume 16 (2018/2), pages 15-28.

Submitted: October 20, 2018

The author declares there is no conflict of interest.

Abstract: Contract for surrogate motherhood is an onerous or gratuitous contract where a woman contracts to another, who either cannot produce fertile eggs or cannot carry a pregnancy through to birth, to conceive, gestate and deliver a baby for the intended mother. According to the Turkish Civil Code art.282 para.1 lineage is established between mother and child by birth. Simply, mother is the woman who gave birth to that child. There are two main issues concerning the surrogate motherhood: validity and linage. Contract for surrogate motherhood is void in Turkish law as it is against to the mandatory rules, personal rights and public morality. As for the lineage of the baby, the mother will be the giving birth woman, whether by her own eggs or the intended mother’s fertilized eggs and whose father will be the husband of the giving birth woman at the time, regardless whose sperms were used. This article aims to demonstrate the current problems in surrogate mothering in Turkish law and suggests solutions compared with and inspired by the Human Fertilisation and Embryology Act 2008, which regulates the contracts surrogate motherhood in the UK.

Keywords: contract for surrogate motherhood, validity of the contract, lineage of a baby, Turkish family law

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Zrzeczenie się prawa do zachowku (Renunciation of the Legitim)

Magdalena Rzewuska

University of Warmia and Mazury in Olsztyn

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Law and Forensic Science, Volume 16 (2018/2), pages 7-14.

Submitted: October 20, 2018

The author declares there is no conflict of interest.

Abstract: The article discusses the problematic issue of renouncing the right of the legitim. In Poland, there are no legal provisions that directly enable legal successors to renounce the legitim. Some legal experts have attempted to derive the above right from the provisions of Article 1048 of the Civil Code, whereas others have completely ruled out this possibility. The Resolution of the Supreme Court No. III CZP 110/16 of March 17, 2017 plays a significant role in this debate. It provides legal successors with the option of drafting a legally binding document renouncing the right of the legitim. The article analyzes the provisions of the above resolution in view of the most problematic issues, including the legal admissibility of a partial renouncement of the legitim, the possibility of evading the legal consequences of renouncing the legitim, and renouncing the right of the legitim on behalf of another party.

Keywords: legitim, succesion, renunciation

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Transaction Costs of Blockchain Smart Contracts

Jakub J. Szczerbowski

SWPS University of Social Sciences and Humanities

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Law and Forensic Science, Volume 16 (2018/2), pages 1-6.

Submitted: July 11, 2018.

The author declares there is no conflict of interest.

Abstract: Smart contracts are computer programs executed on virtual machines, which are used to regulate relationships between the subjects of law. They allow parties to foresee, with a high degree of certainty, how will the contractual relationship develop and by the use of blockchain technology they provide a high degree of certainty. It has been conjured that smart contracts will offer significantly lower transaction costs in relation to traditional contracts. The paper analyzes this proposition and finds that not only are the gains doubtful, but also that in some cases transaction costs may be significantly higher.

Keywords: smart contract, transaction costs, blockchain

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A próposito de la iustae causae del divorcio: protección de la mujer frente al maltrato (About the iustae causae of Divorce: Protecting the Woman Against Maltreatment)

Yeray Del Pino Álamo González

 

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Law and Forensic Science, Volume 15 (2018/1), pages 81-92.

Submitted: June 21, 2018.

The author declares there is no conflict of interest.

Abstract: The title deduces a problem of current news, violence against women and the possibility that women had to dissolve the marriage bond, as a way to avoid abuse. In this regard, we thought it appropriate to present a series of reflections on domestic violence. In this sense, it should be noted that Rome was not far from this social problem of married women who, given their social categorization, based on honesty or pity, as good midwives, suffered violence in a submissive attitude against the husband, in a system in which invisibility and silence predominate in the face of certain types of aggression. Well, in this way, in the present lines, we will refer to fragments such as Papiniano, 15 resp. D.48.5.40. (39). pr. and also sources such as P. Oxyrinco VI 903, who analyze a problem that is so close in our current society and that resulted in the need to implant in the past the option of sending the husband the repudiation, thus dissolving the marriage, as a guarantee in those cases where the woman could suffer a humiliation under the mistreatment.

Keywords: Law, domestic aggression, puditicia, repudium, iustae causae

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Apoderamiento preventivo y autodelación de la tutela en la Ley 41/2003, de 18 de noviembre, de protección patrimonial de la personas con discapacidad (Preventive empowerment and self-disclosure of the guardianship in the Law 41/2003, of November 18, of patrimonial protection of the persons with disability)

Mª del Carmen Colmenar Mallén

 

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Law and Forensic Science, Volume 15 (2018/1), pages 69-80.

Submitted: June 8, 2018.

The author declares there is no conflict of interest.

Abstract: The present work focuses on the regulation of preventive seizure and self-protection or self-demarcation of the guardianship, figures both introduced in our common Civil Law by means of Law 41/2003, of November 18, on patrimonial protection of persons with disabilities. Mention has been made of the regulation of these figures in some of our statutory rights, such as Catalan, precedent of our current legislation, Galician and Aragonese. The differences between both figures have been analyzed, as well as the different modalities, formalization requirements of their constitution, persons entitled to grant it, etc.

Keywords: Law, self-defense, preventive empowerment, guardianship, disability

Continue reading “Apoderamiento preventivo y autodelación de la tutela en la Ley 41/2003, de 18 de noviembre, de protección patrimonial de la personas con discapacidad (Preventive empowerment and self-disclosure of the guardianship in the Law 41/2003, of November 18, of patrimonial protection of the persons with disability)”

Searching for a Genetic Relationship Between the Mitochondrial DNA and Y-chromosomal Polymorphisms

Paulina Wolańska-Nowak
Agnieszka Parys-Proszek
Witold Pepiński
Ireneusz Sołtyszewski

Full text PDFTable 1Table 2Table 3Table 4Table 5Table 6Table 7

Law and Forensic Science, Volume 15 (2018/1), pages 60-68.

Submitted: June 1, 2018.

The authors declare there is no conflict of interest.


Abstract: The present paper addresses the question of linkage disequilibrium (LD) between Y-chromosomal and mtDNA HVR1 distributions based on a population sample of southern Poland. Genetic independence of both polymorphisms would validate the use of the product rule in the assessment of matching probability, as is accepted for autosomal STRs.For this purpose, a total of 330 typed unrelated male samples were assigned to 17 Y-haplogroups, 32 mtDNA haplogroups, and 91 combined haplotypes(including 50 singletons). The average gene diversity for the two polymorphisms was 0.71045. The expected heterozygosity values were 0.69491 and 0.72598 for Y-chromosomalandmtDNA haplogroups, respectively.The exact test for pairwise LD indicated that there was no association between the analysed polymorphisms (median p-value=0.30781). The normalized entropy difference (NED) was0.02. These results prove lack of association between mitochondrial and Y-chromosomal markers and provide acceptable arguments for multiplying together likelihood ratios obtained from both genetic markers without any further assumptions.

Keywords: combined likelihood ratio,linkage disequilibrium, mtDNA, Y-chromosome, haplogroups, southern Poland

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Harm, Culpability and Criminal Liability: A Study of Justification and Excuse in Common Law Jurisprudence

George Mousourakis
  

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Law and Forensic Science, Volume 15 (2018/1), pages 45-59.

Submitted: April 18, 2018. Published: June 16, 2018.

The author declares there is no conflict of interest.


Abstract: This article examines the issue of criminal liability in terms of the theoretical distinction between justification and excuse. By contrast with German and other Continental criminal law systems, the distinction has not played a significant part in the development of criminal law doctrine in common law jurisdictions. Over the past few decades, however, there has been a growing interest in the benefits of this approach to conceptualising criminal liability, as manifested by the considerable literature on justification and excuse and the frequent references to the distinction in judicial decisions, legislative enactments and scholarly works. Although the distinction has been given a great deal of attention in common law countries in recent years, attempts at a systematic classification of criminal law defences on this basis run up against serious difficulties. These difficulties have much to do with the fact that elements of both justification and excuse often appear to overlap in the moral and conceptual basis of a legal defence. It is argued that, notwithstanding these difficulties, the theory of justification and excuse offers a viable model, which can achieve and maintain a measure of coherence among criminal law defences and facilitate understanding and acceptance of the criminal law system and its presuppositions. The references to German criminal law theory add a useful comparative perspective to the discussion of the issues.

Keywords: harm, culpability, criminal liability, justification, excuse, defences Continue reading “Harm, Culpability and Criminal Liability: A Study of Justification and Excuse in Common Law Jurisprudence”

The Meaning of Procreative Autonomy in the Inter-American System of Human Rights. An Analysis of the Decision in Artavia Murillo v. Costa Rica Case

Teresinha Inês Teles Pires
  

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Law and Forensic Science, Volume 15 (2018/1), pages 9-44.

Submitted: April 3, 2018. Published: May 12, 2018.

The author declares there is no conflict of interest.


Abstract: The trial and the reasons adopted by the Inter-American Court of Human Rights (IACtHR) in Artavia Murillo v. Costa Rica represent significant progress in protecting women’s procreative autonomy. The decision of the IACtHR revoked a decision of the Constitutional Chamber of Costa Rica that banned the use of In Vitro Fertilization (IVF) in the country. With its decision, the IACtHR not only linked universal rights of freedom with procreative autonomy for women and men; but also, the IACtHR strongly reinforced an interpretation of the “right to life” that favors procreative autonomy. The decision is also remarkable by including a standard of equality in matters of procreative autonomy insofar as the IACtHR has held that women, because of negative gender stereotypes in society, have been significantly undermined by the decision of the Chamber of Costa Rica to ban IVF. Moreover, as will be argued, in similar future cases courts may introduce in the analysis the Convention of Belém do Pará,considering that the elimination of the IVF services (or other limitation of women’s procreative autonomy) can be seen as a form of violence against women’s moral integrity. Finally, the author will propose the possible application of international provisions on freedom of religion in the context of a broad protection of procreative autonomy. In this perspective, we will argue that those provisions should have been included in Artavia Murillo’s decision, considering the standards stated by IACtHR regarding the right to life and non-discrimination based on religion.

Keywords: procreative autonomy, gender equality, gender stereotypes, fundamental freedoms, right to life, religious discrimination Continue reading “The Meaning of Procreative Autonomy in the Inter-American System of Human Rights. An Analysis of the Decision in Artavia Murillo v. Costa Rica Case”

Postmortem Vitreous Humor Analysis for Xenobiotics and their Metabolites

Marcin Łukasik
Faculty of Applied Toxicology, Medical University of Warsaw, Poland
Anna Małkowska
Faculty of Applied Toxicology, Medical University of Warsaw, Poland
Paulina Anna Cieślak
Faculty of Applied Toxicology, Medical University of Warsaw, Poland
Ireneusz Sołtyszewski
Department of Criminalistics and Forensic Medicine, University of Warmia and Mazury, Olsztyn, Poland. Corresponding author: e-mail: ireneusz.soltyszewski@uwm.edu.pl
Mirosław Szutowski
Faculty of Applied Toxicology, Medical University of Warsaw, Poland

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Law and Forensic Science, Volume 15 (2018/1), pages 1-8.

Submitted: September 14, 2017.

The authors declare there is no conflict of interest.


Abstract: This article discusses the current state of knowledge on quantifying xenobiotics and their metabolites in vitreous humor as part of postmortem toxicological analysis. The evaluated compounds included: opiates and their metabolites, cocaine and its metabolites, amphetamine and its metabolites, cannabinoids, phencyclidine, benzodiazepines, and ethyl alcohol and biomarkers of its abuse.

Keywords: vitreous humor, detection, quantification, xenobiotics Continue reading “Postmortem Vitreous Humor Analysis for Xenobiotics and their Metabolites”

Comparing Law as Science with Science in the Law: Preliminary Thoughts

Kirk W. Junker
University Professor of Law, University of Cologne, Faculty of Law, and Director of International Master of Environmental Science Programme, University of Cologne.

Law and Forensic Science, Volume 14 (2017/2).

Submitted: September 18, 2017.

The author declares there is no conflict of interest.


Abstract: Comparative law often compares institutions or sources of law from various countries. This article rather compares civil law and common law families, but does use Germany and the USA to represent the two families respectively. Rather than focus upon institutions or sources of law, this article compares how these two families understand their practices of law, specifically in reference to science. First the concept of comparison itself is examined through its western conceptions in the discipline of rhetoric. Then the relationship of law to science is discussed, comparing the legal standard of scientist as authority on science to judge as ultimate adjudicator on scientific matters. The author concludes that law requires an evaluative element in its practices if it is to effect justice and further concludes that the evaluative element is better conceived by philosophy than science. Lawyers are thus encouraged to seriously consider evaluative practices, but are invited to do so on their own, rather than treat philosophy as a body of knowledge only present through the philosopher as expert witness.

Keywords: comparativism, rhetoric, science, evidence, scientism, moral, evaluative

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Wpływ szkolenia na skuteczność wykrywania kłamstwa (The Layman’s Ability to Detect Deception – Can it Be Improved by a Short Training?)

Jagoda Dzida
Wydział Prawa i Administracji Uniwersytetu im. A. Mickiewicza w Poznaniu

Law and Forensic Science, Volume 14 (2017/2).

Submitted: May 24, 2017.

The author declares there is no conflict of interest.


Abstract: The study was conducted to verify, whether it is possible to improve people’s ability to detect deception by a short training, and if so, to what extend it can be improved. The results are important due to the potential applicability of non-instrumental deception detection methods in the criminal procedure. The experiment was conducted on the group of students who were asked to decide, whether the persons, depicted on the video, are telling the truth or are lying. The procedure was repeated after a short training that gave the students more detailed information about the most reliable verbal and nonverbal cues to deception. The results revealed that a short training may improve lie detection by about 22%. The implications for future research are discussed.

Keywords: deception detection, lie, training

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The Impact of the European Union Agency for Law Enforcement Cooperation (Europol) on Combating Cross-Border Crime – Legal and Practical Aspects

Tomasz Safjański
Doctor of Law. Retired police officer. Doctoral degree from the University of Warsaw. He is also a graduate of the Faculty of Administration and Management, and of the Faculty of Law and Administration at the University of Warmia and Mazury in Olsztyn. He graduated from the Higher Police School in Szczytno. His police service began in 1994 with a career involving many police departments, amongst others: crime, organised crime, crime prevention, internal affairs, international cooperation, criminal intelligence. 2006-2007 deputy director of Criminal Intelligence Bureau at the National Police Headquarters in Warsaw. 2006-2007 Head of Europol National Unit (HENU). In addition in period 2002-2006, he acted as the coordinator of the Central Investigation Bureau in cooperation with Europol, Police representative in the working groups of Europol (for the strategic analysis, dealing with the development of strategic reports) and a national expert in the Europol Working Group of the EU. At present a teacher at the University of Law and Public Administration, Rzeszów–Przemyśl. Correspondence: 01-493 Warszawa, ul. Wrocławska 10G m. 06, Poland. E-mail: janeksaf@interia.pl.

Law and Forensic Science, Volume 14 (2017/2).

Submitted: August 19, 2017.

The author declares there is no conflict of interest.


Abstract: The article presents the role of Europol in combating cross-border crime. Europol is the main platform of EU Member States crime intelligence cooperation, which use the information potential and experience of over 300 national security agencies and police forces. The cooperation is vital for the public security of the EU area – understood as a form of multilateral international connections and channels of exchanging criminal information between national police forces, special services and other state and EU institutions responsible for public security. The role of Europol in combating cross-border crime is characterised by an enormous degree of complexity due to it’s specific legal status, scope of operating activities, and position in the EU institutional system.

Keywords: Europol, crime intelligence, crime analysis, operational analysis, strategic analysis, combating transborder crime, terrorism, multiagency, international cooperation

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Climate Change and Environmental Rights Litigation at the European Court of Human Rights: A View from the Arctic

Stefan Kirchner
RA, Dosentti (Adj. Prof.), Dr. Stefan Kirchner, MJI, is University Researcher for Arctic Law, Arctic Centre, University of Lapland, Rovaniemi, Finland, and Adjunct Professor for Funda-mental and Human Rights at the same university. He is admitted to the bar in Germany, working in particular on matters concerning the European Convention on Human Rights. Email: stefan.kirchner@ulapland.fi; Phone: +358 40 48 44 001.

Law and Forensic Science, Volume 14 (2017/2).

Submitted: November 26, 2017.

The author declares there is no conflict of interest.


Abstract: Climate change is real. It is felt particularly severely in the Arctic and in mountainous areas. While efforts to limit the effects of climate change are underway on a global level, most notably with the 2015 Paris Accord, dama-ges are already suffered on the local level. Climate change affects in particu-lar communities which are closely connected to nature and which therefore are sensitive to change, such as indigenous communities. Climate change shatters the capacity for resilience and can threaten the very survival of communities. In recent years, litigation has emerged as a potential tool for attempts to recover some of the losses suffered due to climate change. In this text it will be shown that the European Court of Human Rights, although it has been slow in recognizing environmental rights, has the potential to ser-ve as an adequate forum for human rights-based climate change litigation.

Keywords: climate change, human rights, Litigation, indigenous peoples, Arctic

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