Open Journal for Legal Studies

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An Evaluative Study of Criminalistics: A Case of South African Counterfeiting and Knock-Off Menace
Counterfeit goods are a health hazard to human life, environment and business. More so as the goods destroy the viability of legitimate businesses across the world. Counterfeit goods are characterized as a threat to the financial viability of legitimate businesses and has a dire impact on the tax revenue of countries, necessitating its effective and efficient policing for the financial wellbeing of countries. If not well managed, counterfeit goods could lead to unemployment, disinvestment and capital flight in countries. The available evidence reveals that even though counterfeit goods has dire consequences for the economic wellbeing of countries, its penalties in most African countries are less severe in comparison to penalties for other crimes. The sight of counterfeit goods in many places, such as on busy street corners and transportation terminals in the Southern parts of Africa, attests to its prevalence in the continent. Especially in South Africa as the country has become a transit point for contrabands. Post 1994, South Africa opened its borders to the world of branded and protected goods and this enabled rogue people to trade in counterfeit goods. Effective policing is hindered by the use of sophisticated skills and expertise that leads to counterfeit goods resembling genuine goods. Moreover, in South Africa, the problem persists despite the promulgation of the Counterfeit Goods Act 37 of 1997, thus questioning the effectiveness of the policing strategies in use to quell the problem
Peculiarities of Usufruct in the Countries of Roman-German Law: Implementation of Best Practice in Ukrainian Law
The article examines the features of usufruct in the European countries of Romano-Germanic law, determines the terms for the implementation of the best European practice of usufruct in the law of Ukraine. The law of European countries of continental law recognizes the usufruct as a real right of personal possession for use, which is considered an independent real right to another's property or a kind of easement. The peculiarities of usufruct in some countries of Romano-Germanic law, in particular in Germany, France, Georgia, Moldova and Russia, are researched. The peculiarities of usufruct in some countries of Romano-Germanic law, in particular in Germany, France, Poland, the Netherlands, Switzerland, Georgia, Moldova and Russia, are researched. The issues of usufruct implementation in the law of Ukraine are considered. The issues of usufruct implementation in the law of Ukraine are considered. The authors came to the conclusion that it is necessary to introduce the institute of usufruct into the Ukrainian law by supplementing the Civil Code of Ukraine with a new chapter “Uzufruct”, the framework provisions of which are proposed in this paper
An Assessment of Intellectual Property Legislative Framework on Violations of Protected Goods
Infringement of intellectual property is a violation of protected rights. Intellectual property is an asset owned by businesses and forms part of a trade. In South Africa, the Constitution and other legislation guarantee ownership of property. The rights to ownership of protected property are affected when criminals misappropriate property. This abuse is evident when the protected property is divested from its lawful owners and sold at a profit to disadvantage the owners. This has the potential of devaluing protected property and contributes to the financial loss of the owners. The abuse ultimately discourages innovation and creativity in businesses. The government is responsible for protecting property rights; the positive spin-off is the taxes that benefit the country. Poor protection encourages free-riding behavior where unscrupulous criminals misuse the intellectual property for their benefit. This study assessed the effectiveness of various legislation that protects property interests. It further highlighted poor enforcement of the law
A Critical Examination of Breeders' Monopoly Rights to the Detriment of Farmers' Rights Under the Ethiopian Plant Breeders' Rights Law
Ethiopia adopted plant breeders' rights proclamation in 2006 to provide recognition and economic reward for breeders for their effort and investment so as to encourage their involvement in the sector. At the same time, the proclamation aims to ensure that the farming and pastoral communities of Ethiopia, who have been conserving and continue to do so in the future the agro-biodiversity resource used to develop new plant varieties, continue to their centuries old customary practice of use and exchange of seed. This article aims at investigating the extent to which the proclamation accommodates its stated objective by giving adequate recognition to farmers' rights. The investigation adopts a qualitative method by analyzing both primary materials and secondary sources. The article concludes that the Ethiopian plant breeders' rights proclamation fails to adequately incorporate farmers' rights beyond its preamble
Towards Safeguarding Rural Communities' Social and Economic Interests Through Communal Property Law
South Africa's incessant Corporate Law Reforms do offer vast opportunities for rural communities to be actively involved in their own social and economic development. This article discusses the practicability of using a private company to promote and develop social and economic interests of rural communities. The fundamental question is: what constitute proper administration and socio-economic development in a rural context? It takes into account, the fact that the post-1994 democratic dispensation has made some effort to develop and strengthen the constitutional property rights, and the social and economic development of the previously disadvantaged rural communities. This encompassed the idea of, somewhat, relying on civil society institutions to manage and develop property rights of rural communities. Nonetheless, it should be noted that the success thereof is dubious since the development and operation of civil society institutions in these communities are constantly under threat and undermined by the tenacity of conflicts between administrators and the traditional leadership. It is asserted that there is an incessant need to resolve fundamental aspects relating to law, application of legal norms and achievement of social justice in a rural context
The Voice of the Child: Are the Procedural Rights of the Child Better Protected in the New Brussels II Regulation?
The procedural rights of children in civil court proceedings, and in particular the right of children to be heard in such proceedings, play a significant and growing role in international, European and national context. At the EU level, the growing relevance of the procedural rights of the child has shaped the Brussels II system, originally adopted in the Council Regulation (EC) No 1347/2000 of 29 May 2000, now in the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. Recently, the Brussels II system has been the subject of a second recast aimed at better protection of the best interest of the child, including the right to be heard in these matters. The new Regulation II ter will start to apply from 1 August 2022. In this paper, the importance and role of the right of the child to be heard in the Brussels II bis Regulation will be analyzed and discussed, taking into account the jurisprudence of the Court of Justice of the EU. Following that, the impact of the right of the child to be heard on the second recast of the Brussels II System will be evaluated. Last but not least, the paper will try to answer the question of what we have achieved with the new Brussels II ter Regulation in proceedings on parental responsibility from a child rights-based approach. Keywords: right to express an opinion, child, parental responsibility, Brussels II Regulation, recast, procedure
Legal Aspects of the Principal of 'Rule of Law' as an Element of Constitutionalism
The paper analyzes the relation between the principle of “rule of law” and the concept of constitutionalism. In this context, the paper elaborates the concept of rule of law and its varieties of definitions. The author emphasizes that although there are different approaches in defining the concept of constitutionalism, they all include the principle of rule of law. The paper also brings up the issue of some legal aspects of the principal of rule of law – hierarchy of acts in the legal system (Kelzen-Merkl Stuffentheorie), and the limits and boundaries of the powers of the norm makers, in the process of materialization of the law. The paper analyzes the problem of (pan)iuridisation and polyferation as deviation / hybridization of the legal system in practice. Keywords: constitutionalism, rule of law, constitutionality, legality, materiae constitutionis, materia legis, materiae sublegalis, paniuridistion, polyferation
Construction of the Rehabilitation Model for Drug Abuse in Non-Penal Criminal Policy Perspective
As mandated by the Law for drug addicts/abusers, rehabilitation is carried out. Meanwhile, the rules for drug addicts and psychotropic drugs or similar drugs that cause dependence and have a serious impact are not regulated normatively. So that in the law enforcement process, both Narcotics, Psychotropics and Drugs, Law No. 35 of 2009 concerning narcotics. In a practical level or reality in the field, the implementation of rehabilitation is very monotonous and the road is in place. Both the Narcotics Law, Seja, Sema and Perber all require that before waiting for the decision of the panel of judges concerned as a category of addicts must be placed in a rehabilitation institution. Of course, this is very worrying, how much will the rehabilitation process cost? Economically, this law enforcement model is ineffective, so the implementation of enforcement is in place. Keywords: drug rehabilitation, rehabilitation model construction, non-penal policy
The Relation of Gender and Feminism in Islamic Jurisprudence
Research on the relation of gender in Islamic Jurisprudence field always sparks the interest to study because of several things: the idea of power relations which has been touted as a thought that subordinates the role of women in their dynamic movements. Second, the role of the text of the Holy Qur’an in seeing and explaining gender relations in Islam, specifically when influencing or influenced by local culture. The main research question to be revealed is: how does the concept developed in Islamic Jurisprudence schools interpret the relations of men and women? The theoretical framework developed in this study is based on the thought which built in the Islamic Jurisprudence Schools. Sachiko Murata sees that there is a relationship between cultural understanding and the understanding of God in the relationship of men and women. The research method applied in this research is prescriptive normative legal method with conceptual approach. The conclusion in this study states that in the narrative approach to the Holy Qur’an, there is no significant power relation that degrades, dominates, or subordinates the role of women in Islam. Spatial structure of culture becomes a matter of concern when there is submission in the role of women in their socio-cultural environment. The narrative text of the Holy Qur’an explains the high appreciation of domestic and public roles for women. Feminism itself can be traced in various narrative texts in the Holy Qur’an that place women in a place of honor. Keywords: feminism, gender, Islamic Jurisprudence
Adopting Passing off Concept of Unfair Competition Into Indonesia's Trademark Law
The application of the concepts of unfair competition in Indonesia’s Trademark Law is one of the reasons as a proper solution in providing justification and argumentation basis, in terms of to answer the issue of impersonation of trademarks on different kinds goods, particularly for impersonation of domestic well known mark obtains sufficient legal basis due to the existence of protection and legal certainty for the trademark owner which is impersonated thereof. The current Indonesia trademark law basically only provide trademark lawsuit in terms of cancellation for registered mark; legal damages claim. Both lawsuits related to using unauthorized registered mark based on overall or basic similarities in the same kind of goods, although unauthorized use in different kind of good is possible to be sued but it is restricted for international well-known mark only. In addition there is such trademark lawsuit in connection with deletion registered mark means this proceeding enforce when the registered mark does not use for three years as of the mark registered. Considering that actually the concept of unfair competition basically reflect to the understanding of unlawful act (tort) which stating in the article 1365 Indonesia’s Civil Code. However, this understanding is not covered in Indonesia’s Trademark law instead of it is enforced in Indonesia’s civil law and civil procedure. Hence, if there is a trademark impersonation dispute in the different kinds of goods, the resolution of the dispute will refer to unlawful act and that lawsuit will be trialed by regular district court, even though based on trademark law for trademark lawsuit should be trialed by commercial court. Therefore, it is lead to uncertainty in terms of the authorize court which is examined and handled the said case. To include the concept of unfair competition as a part of trademark violation into Indonesia’s trademark law hopefully enable to anticipate in reducing any kind of types trademark violation occurred including in the form of violation such impersonation of domestic well-known mark in different kind of goods. This research is normative legal research with a legislation, concept, and comparative approach. The legal material with technical analysis is done by the method of interpretation. Comparing to the concept of unfair competition, passing off within Indonesia’s trademark law; International Trademark Convention will answers whether the understanding of unfair competition applied in the trademark violation in Indonesia particularly in connection with the issues of impersonation towards registered of well-known mark domestically is already proper either for domestic or worldwide perspective. Keywords: impersonation, different kinds of goods, unfair competition, well-known mark, domestically well-known mark, Article 21 Paragraph 3 of Indonesia’s Trademark Law, Article 16 Paragraph 3 of TRIPs, Article 6 of the Paris Convention