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Updated: 2 hours 43 min ago

China: Tobacco Leaf Tax and Vessel Tonnage Tax Laws Passed

Fri, 19/01/2018 - 17:30

(Jan. 19, 2018) On December 27, 2017, in its last session of 2017, the Standing Committee of the National People’s Congress of China (NPC) adopted laws regulating the taxation of tobacco leaves and the taxation of vessel tonnage. (Zhonghua Renmin Gongheguo Yanye Shui Fa (Dec. 27, 2017), NPC website; Zhonghua Renmin Gongheguo Chuanbo Dunshui Fa (Dec. 27, 2017), NPC website.) The new Laws will take effect on July 1, 2018.

The Tobacco Leaf Tax Law, which replaces the State Council’s Provisional Regulations on the Tobacco Leaf Tax, establishes who is subject to the tax (those entities that purchase tobacco leaves within the territory of China in accordance with the Law of the People’s Republic of China on Tobacco Monopolies); which leaves are covered by the tax (flue-cured, air-cured, and sun-cured tobacco leaves); the taxation basis (the total payment actually made by a taxpayer for the purchase of tobacco leaves); tax-collection bodies; the time schedule for tax liability; tax payment deadlines; and tax payment locations. The Law also provides that the tax rate of 20% previously levied on tobacco-leaf buyers remain unchanged.

The other tax law passed by the NPC Standing Committee, the Vessel Tonnage Tax Law, repeals the State Council’s Provisional Regulations on the Vessel Tonnage Tax. The Law lays down detailed provisions establishing which vessels are subject to the tax (those that enter the domestic ports of China from overseas ports); tax items and tax rates; the taxation basis (the net tonnage of a vessel and the terms of the tonnage tax certificate); taxable amounts (calculated by multiplying the net tonnage of a vessel by the applicable tax rate); tax-collection bodies; and eligibility criteria for tonnage tax exemptions. According to the Law, the tax is levied on vessels entering domestic Chinese ports (excluding Hong Kong and Macau) from foreign ports. The Law divides tax items into four categories according to their net tonnage: up to 2,000 tons, 2,000 to 10,000 tons, 10,000 to 50,000 tons, and over 50,000 tons. In addition, the tonnage tax rates are classified into preferential tax rates and general tax rates. Preferential tax rates are applicable to taxable Chinese vessels and taxable vessels whose flag states (regions) have signed treaties or agreements containing reciprocal most-favored-nation treatment clauses for vessel taxes and dues, while general tax rates apply to all other taxable vessels.

According to Ruihe Wang, director of the Economic Law Office of the NPC Standing Committee’s Legislative Affairs Commission, the passage of the two tax laws is mainly a process that elevates the previous administrative regulations to NPC laws. Wang suggested that the legislation did not significantly affect the former tax system. Once the two tax laws take effect in 2018, six out of the 18 types of taxes levied in China will be imposed by NPC laws. (Zhou Xiaoxiao, Shuishou Fading Zai Xia Yicheng: Yanye Shui Fa He Chuanbo Dunshui Fa Huo Renda Tongguo [A Step Forward Toward Statutory Taxation: Tobacco Leaf Tax Law and Vessel Tonnage Tax Law Passed by NPC] 21 SHIJI JINGJI BAODAO [21st CENTURY BUSINESS HERALD] (Dec. 28, 2017).) Under the 2015 amendment of the Law on Legislation, the types of taxes, tax rates, and mechanism of taxation must be provided in laws adopted by the NPC, rather than in administrative regulations. (Laney Zhang, China: Law on Legislation Amended, GLOBAL LEGAL MONITOR (July 8, 2015).)

Prepared by Yichao Zhang, Law Library intern, under the supervision of Laney Zhang, Senior Foreign Law Specialist.

Italy: Constitutional Court Issues Decision on Citizenship Oath

Thu, 18/01/2018 - 20:30

(Jan. 18, 2018) On November 8, 2017, the Italian Constitutional Court issued a decision on requiring an oath of citizenship from an immigrant whose disabilities prevented her from taking it. (Decision No. 258 of November 8, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [OFFICIAL GAZETTE, G.U.] (Dec. 13, 2017) (in Italian), G.U. website.)

The Decision declared article 10 of Law No. 91 of February 5, 1992, unconstitutional because the article does not exempt from the citizenship-oath requirement a person who is incapable of taking the oath due to serious and proven conditions of disability.  (Id., holding 1; Law No. 91 of February 5, 1992, New Rules Governing Citizenship (G.U. Feb. 15, 1992) (in Italian), Normattiva website.)

The Decision also denied the Ordinary Tribunal of Modena’s request that the Court declare unconstitutional article 7, paragraph 2 of Presidential Decree No. 572 of October 12, 1993, and article 25, paragraph 1 of Presidential Decree No. 396 of November 3, 2000. (Id., holding 2; Presidential Decree No. 572 of October 12, 1993, on the New Rules Governing Citizenship (G.U. Jan. 4, 1994), (in Italian), G.U. website; Presidential Decree No. 396 of November 3, 2000, Regulations for the Revision and Simplification of the Civil Status Resolution (G.U. Dec. 30, 2000) (in Italian), G.U. website.)

Background of the Case

The case under consideration involved a minor female petitioner affected by partial epilepsy and severe mental retardation. The Court noted that during the hearing to test her competence to provide the required oath, the minor appeared “disoriented in time and space.” (Decision, holding 2 (all translations by author).)

The Ordinary Tribunal of Modena then raised the issue of the constitutionality of several Italian legal provisions because the provisions, which required immigrants to provide an oath in order to obtain Italian citizenship, did not exempt persons with disabilities that prevent them from taking such an oath. (Id., holding 1.)

Applicable Rules

The Constitutional Court reviewed the constitutionality of the challenged legal provisions in light of international conventions ratified by Italy—in particular, the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and the United Nations Declaration on the Rights of Disabled Persons (DRDP). (Id., holding 1; CRPD, Mar. 30, 2007, 2515 U.N.T.S. 3, UN Division for Social Policy and Development: Disability website; G.A. Res. 30, DRDP (Dec. 9, 1975), UN Office of the High Commissioner for Human Rights website, ratified by Italy through Law No. 18 of March 3, 2009 (in Italian), Normattiva website.)

The Court noted that Law No. 91 of 1992 established that Italian citizenship may be granted by a Presidential Decree to foreigners who legally reside in Italian territory for at least ten years. (Decision, considerations of fact 3, ¶ 2.) Article 10 of the same Law provided that the decree granting citizenship becomes null and void if within six months from the date of the notification of the decree the beneficiary does not take an oath to be loyal to the Republic and abide by the Constitution and the laws of the State. (Law No. 91 of 1992, art. 10.) In addition, Law No. 91 required that the oath for the acquisition of citizenship be given before the civil official of the municipality where the beneficiary resides or intends to reside or, if residing overseas, before the diplomatic or consular authority of the place of residence. (Id. art. 23, ¶ 1.) The Court considered that the lack of a regulation for a situation where the beneficiary is unable to take the oath due to serious mental illness constituted a “normative lagoon” or otherwise “a contrast of the normative fabric with respect to the constitutional parameters.” (Decision, considerations of fact 3, ¶ 4.)

In an intermediate ruling in the case, the Tribunal of Bologna upheld a previous ruling issued by the Council of State in 1987 according to which the oath constituted a right and duty of the beneficiary that had to be exercised personally and could not be delegated to her legal guardian. (Id., considerations of fact 4, ¶ 2.)

Initially, the Court examined the argument that the beneficiary’s inability to understand the nature and legal and moral consequences of the oath were an obstacle to her obtaining citizenship altogether. (Id., considerations of fact 6.) The Court contrasted this argument with reasoning based on article 2 of the Constitution that mental disability may not deprive a person from the acquisition and enjoyment of a fundamental right, which in this case is the status of citizenship. (Id., considerations of fact 7, ¶ 1; Costituzione della Repubblica Italiana [Constitution of the Italian Republic] art. 2, Italian Senate website.) To accept the contrary of this reasoning would mean that legally and in fact there would be two classes of persons vis-à-vis the enjoyment of constitutional rights: those with disabilities and those without, and that hypothesis is unacceptable. (Decision, considerations of fact 7.1.)

The Court noted that article 18 of the CRPD provides that “the right to citizenship may not be denied and therefore the disabled have the right to acquire and change citizenship and may not be deprived of the same arbitrarily or on the basis of their disability.” (Id., considerations of fact 7.2, ¶ 1.)

The Court also noted that the general legal framework of Italian legislation on disabilities favors overall social integration (see Law No. 104 of 1992, on the Assistance, Social Integration and Rights of Handicapped Persons, Feb. 5, 1992, Normattiva website), thus bringing a “radical change of perspective with respect to the very way of dealing with the problems of people affected by disabilities.” (Decision, considerations of law 9, ¶ 1.) The Court concluded that the inability of a person affected by a disability to acquire citizenship may constitute a form of social exclusion that deprives the person of a sense of belonging to the national community and may also become a form of marginalization even with respect to other family members who have acquired citizenship. (Id., considerations of law 9, ¶ 1.)

France: Constitutional Court Strikes Down Prohibition on Accessing Terrorist Websites

Wed, 17/01/2018 - 14:30

(Jan. 17, 2018) On December 15, 2017, France’s Conseil constitutionnel (Constitutional Court) struck down a legislative provision prohibiting access to websites that support terrorism. (Conseil Constitutionnel, Decision No. 2017-682 QPC, Dec. 15, 2017, CONSEIL CONSTITUTIONNEL.) The provision, which was part of a security law adopted in February 2017, prohibited “habitual” access to websites that supported or called for acts of terrorism and contained images or representations of intentional killings, unless that website was accessed for “legitimate reasons,” such as journalistic or academic research. (Loi n° 2017-258 du 28 février 2017 relative à la sécurité publique [Law No. 2017-258 of 28 February 2017 Regarding Public Security] art. 24, LEGIFRANCE). The Conseil constitutionnel found that this provision was contrary to the freedom to communicate ideas and opinions as enshrined in article 11 of the 1789 Declaration of the Rights of Man and of the Citizen, which is considered part of the French Constitution. (Déclaration des Droits de l’Homme et du Citoyen de 1789 [Declaration of the Rights of Man and of the Citizen of 1789] art. 11, English translation, CONSEIL CONSTITUTIONNEL.)

Germany: University Admission Rules for Medical Studies Partially Unconstitutional

Tue, 16/01/2018 - 17:30

(Jan. 16, 2018) On December 19, 2017, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held that the federal framework and state implementing provisions regulating university admissions for medical studies at Germany’s public universities are partially incompatible with the German Basic Law, the country’s Constitution. The Court stated that the provisions infringe the applicants’ constitutional right to equal participation in study programs offered at public universities. (BVerfG, Dec. 19, 2017, Docket No. 1 BvL 3/14, BVerfG website (in German); Press Release No. 112/2017, Federal Constitutional Court, Legal Provisions of the Federation and the Laender Relating to University Admissions to Medical Studies Are Partly Incompatible with the Basic Law (Dec. 19, 2017), BVerfG website; Basic Law for the Federal Republic of Germany (May 23, 1949), BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, as amended, art. 12, ¶ 1, sentence 1 in conjunction with art. 3, ¶ 1, GERMAN LAWS ONLINE (unofficial English translation).)

The unconstitutional provisions will remain in force until new provisions have been enacted. The Court set a deadline of December 31, 2019, for the legislature. (BVerfG, 1 BvL 3/14, at para. 253.)

Facts of the Case

The rules for university admissions for studies at public universities in Germany can be found in the Federal Framework Act for Higher Education and in the state laws ratifying and implementing the State Treaty on the Establishment of a Joint Center for University Admissions. The states also authorized the public universities to enact rules to regulate their internal admission procedures. (Id. at 4; Hochschulrahmengesetz [HRG] [Framework Act for Higher Education], Jan. 19, 1999, BGBl. I at 18, as amended, GERMAN LAWS ONLINE; Staatsvertrag über die Errichtung einer gemeinsamen Einrichtung für Hochschulzulassung [State Treaty on the Establishment of a Joint Center for University Admissions], June 5, 2008, GESETZ- UND VERORDNUNGSBLATT NORDRHEIN-WESTFALEN [GV. NRW.] [STATE GAZETTE OF LAWS AND ORDINANCES FOR NORTH RHINE-WESTPHALIA] at 710, annex.)

The Federal Framework Act for Higher Education provides that every German who fulfills the requirements to study at a university, meaning everyone who has successfully graduated from high school (Abitur), is entitled to pursue the university studies of his or her choice. (HRG § 27.) The states and the universities are obligated to develop common criteria to determine the number of available admission spots and the maximum number of students that each university may admit in a given year if it seems likely that not all applicants will receive a spot. In cases in which several universities have established maximum admission numbers, the spots for that course of study will be distributed by the Joint Center for University Admissions. (Id. §§ 30, 31.)

The admission to medical studies at German public universities is restricted nationwide because there are generally more applicants than admission spots. Up to 30% of the spots are reserved for specific applicant groups—for example, applicants for whom a rejection would constitute extreme hardship, in particular, social hardship; applicants who are from a foreign country or are stateless; and applicants who have already completed another course of study, among others. (Id. § 32, ¶ 2; BVerfG, 1 BvL 3/14, at 13.) The rules provide that for the remaining spots, 20% will be allocated on the basis of high school final examination grades, 60% on university-specific admission criteria, and 20% on elapsed waiting time since high school graduation. (HRG, § 32, ¶ 3.) The Federal Framework Act for Higher Education provides a nonexhaustive list of criteria that universities must take into account, but requires that the final high school examination grade have “significant influence” on the admission decision. (Id. § 32, ¶ 3, no. 3.) Some of the state laws that implement and further define the selection criteria provide exhaustive lists for the universities to take into account when making the admission decision, whereas other state laws leave it up to the universities to define additional criteria. (BVerfG, 1 BvL 3/14, at 28–36.)

Applicants must submit a ranking of their preferred universities with their application to the Joint Center for University Admissions. The State Treaty limits that number to six. (Id. at 22.) Location preference is one criterion that has been frequently used by the universities in making their selections. For the winter semester of 2017/2018, fifteen universities considered applications only from students who ranked those universities as a first choice, four other universities chose location preference as the most or second-most important criterion, and another four universities selected location preference as the most, second-, or third-most important criterion. (Id. at 18.)

The constitutional complaint was submitted to the Federal Constitutional Court by the Administrative Court of Gelsenkirchen, which has two pending cases from students who have been denied admission to study medicine. The Administrative Court of Gelsenkirchen stayed the two proceedings and asked the Federal Constitutional Court to rule on the constitutionality of the admission criteria as codified in the Federal Framework Act for Higher Education and in the state provisions ratifying and implementing the State Treaty on the Establishment of a Joint Center for University Admissions. (Id. at 49.)

Decision

The Federal Constitutional Court held that the legal provisions on university admissions to medical studies are unconstitutional to the extent that they

  • allow universities to autonomously define further selection criteria;
  • do not ensure that the university-specific admission procedures are conducted in a standardized and structured manner;
  • allow the universities to use location preference as an additional criterion in their admission procedure without any restrictions;
  • do not provide a balancing mechanism for rendering high school graduation grades from different German states sufficiently comparable in university admissions procedures; and
  • do not require universities to consider at least one additional selection criterion as equally important as the high school examination grade. (Id. at 246.)

The Court stated that everyone who fulfills the general admission criteria has a constitutional right to equal participation in study programs offered at public universities. However, it reiterated that this right exists only within the framework of actually available education capacities and does not obligate the government to create additional capacities to accommodate everyone. (Id. at 105 & 106.) It explained that particularly for popular programs of study like medicine, this might result in not everyone actually receiving a spot at a university. (Id. at 106.)

The Court explained that in cases in which there are not enough places for all applicants, the selection must generally be based on aptitude. (Id. at 108.) It held that there are no constitutionally required criteria to assess aptitude, but that the admission criteria have to be transparent and predictable. (Id. at 113 & 114.)

The Court held that basing the admission decision for 20% of the available places on the high school examination grade is constitutionally unobjectionable. (Id. at 127.) However, it stated that it is unconstitutional if within that context priority is given to candidates on the basis of their location preference, thereby “devaluing” the high school examination grade and replacing it with location preference. In the opinion of the Court, location preference can be used only as a secondary criterion. (Id. at 136 & 137.) Furthermore, it ruled that the number of location preferences cannot be limited. (Id. at 138.)

Lastly, the Court stated that allocating places according to waiting time was constitutional, but that the number cannot be higher than the current 20%. (Id. at 221.) However, it held that not limiting the waiting time was unconstitutional, because “waiting too long substantially impairs the chances of success in studies and therefore the possibility to actually choose one’s profession.” (Id. at 223 & 224.)

Japan: Supreme Court Affirms Reversal of Order to Return Children with Dual Citizenship

Fri, 12/01/2018 - 20:30

(Jan. 12, 2018) On December 21, 2017, Japan’s Supreme Court affirmed a High Court decision that reversed a previous order for the mother of four children with dual Japan-US citizenship to return the children to their father in the United States. (Sup. Ct., Case No. 2017 (kyo) 9 (Dec. 21, 2017) (in Japanese; click characters beside PDF icon at the bottom), COURTS IN JAPAN .)

Background

The appellant was a male US citizen and the appellee his wife, who is a Japanese national. Their four children were born while they were living in the US. In July 2014, the Japanese wife and the four children went to Japan for a six-week stay agreed on by both the wife and husband. In August 2014, the parents agreed that the wife and children’s stay in Japan would be extended because the husband was having difficulty finding employment in the US, and the husband also agreed that the four children would be enrolled in school in Japan in September 2014. The husband and his mother separately visited the children in Japan later that year. (Id.; Subcommittee Hearing: Hope Deferred: Securing Enforcement of the Goldman Act to Return Abducted American Children, Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations, 113th Cong. (July 14, 2016) (statement of James Cook), House of Representatives website.)

In January 2015, the husband filed for divorce in the US. In July 2015, he filed an application with the US State Department to request the children’s return to the US. (Subcommittee Hearing, supra.) The application was based on the Convention on the Civil Aspects of International Child Abduction (Child Abduction Treaty), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW. Japan also has a law to implement the Convention: Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Implementation Act), Act No. 48 of 2013 (Japanese Law Translation website). During the investigation procedure, the Osaka Family Court found the husband did not have the financial resources to raise the children. In October 2015, the Osaka Family Court decided the two elder children would stay in Japan and the two younger ones would go back to the US. The Court found, in principle, that all the children should be returned under the Convention and the domestic law implementing the Convention. (Subcommittee Hearing, supra; Child Abduction Treaty art. 12; Implementation Act art. 27.) However, the two elder children objected to the return, and the Court found that they were mature enough to object. (Child Abduction Treaty art. 13; Implementation Act art. 28, para. 1, item 5.) Both sides appealed the decision. In January 2016, the Osaka High Court found that the two elder children’s objections were valid but also that it would be better for them to go back to the US. Therefore, the High Court ordered the wife to return all four children to the US. (Case No. 2017 (kyo) 9.) The High Court decision was finalized in the same month. (Id.)

However, the wife did not comply with the court order. Even after she was ordered to pay 5,000 yen (about US$4,500) per person for every day she did not comply with the return order, she did not return the children. (Subcommittee Hearing, supra.) In September 2016, the enforcement officers’ attempts to remove the children from their mother’s residence in Japan were not successful because the children refused to leave. (Case No. 2017 (kyo) 9; Simon Scott, Three Years After Japan Signed Hague, Parents Who Abduct Still Win, LINKEDIN (Oct. 30, 2017).)

On the other hand, in February 2016, the house in the US where the family used to live was placed under auction, and in August 2016, the husband moved out the house and began living in one room in a third party’s house. (Case No. 2017 (kyo) 9.)

In early 2017, the wife filed a petition to change the return order because the situation had changed since the order was issued. (Implementation Act art. 117.) The Osaka High Court agreed with the wife and reversed the original decision, declining the husband’s request to return the children to the US. It was this decision that the Supreme Court affirmed in December 2017. The Court stated that the living environment that would be provided for the children had worsened to an extent the Court could not ignore. The Court found that the benefits of the two elder children returning to the US despite their objections had been lost, and that it had become more likely that the two younger children would be in an unbearable situation. (Case No. 2017 (kyo) 9.)

Finland: Supreme Court to Make English Summaries of Precedents Available Online and Begin Using ECLI Code in 2018

Fri, 12/01/2018 - 17:30

(Jan. 12, 2018) On January 2, 2018, the Finnish Supreme Court announced it will make some of its precedents available through summaries in English. (Press Release, Finnish Supreme Court, The Supreme Court of Finland Starts to Publish Summaries of Its Precedents in English (Jan. 2, 2018), SUPREME COURT.) The cases will be limited to those involving interpretations of the European Convention on Human Rights, the law of the European Union (EU), and international law. (Id.) Some earlier precedents have already been summarized in English and made available on the Court’s website. (Summaries of Selected Precedents in English, SUPREME COURT (Dec. 11, 2017).)

Under Finnish law, the Supreme Court must make its decisions available in Finnish or Swedish, depending on what language the lower courts have used, unless the court and parties decide differently. (3 kap. 17 § Språklagen [Language Act] No. 2003/423 (in Swedish), FINLEX website.)

Also in 2018 the Court will begin using ECLI (European case law identifier) codes for its decisions. (Press Release, Finnish Supreme Court, HD:s prejudikat börjar förses med ECLI-kod 2018 (Jan. 3, 2018) (in Swedish), SUPREME COURT.) The first Supreme Court case of 2018 has been assigned ECLI number ECLI:FI:KKO:2018:1. (Id.) The ECLI code is meant to create a uniform manner in which to cite cases within the EU; the individual countries decide whether to adopt the code or not. (Id.) Finland will become the first Nordic country to adopt the standard.

Japan: Supreme Court Says Pretense of Being Deceived Did Not Affect Responsibility for Attempted Fraud

Thu, 11/01/2018 - 20:30

(Jan. 11, 2018) On December 11, 2017, Japan’s Supreme Court rendered a decision in a fraud case in which the victim cooperated with the police investigation after she realized the fraud had occurred. (Sup. Ct., Case No. 2017 (a) 1079 (Dec. 11, 2017) (click characters beside PDF icon at the bottom) (in Japanese).)

In this case, an unidentified person (the main perpetrator) persuaded the victim to join a false scheme for winning the lottery and asked her to send 1.2 million yen (about US$10,000) in cash to a specified address. Subsequently, the victim, who is in her 80s, realized the scheme was false and contacted the police. The victim cooperated with the police investigation of the case, pretending she still believed in the scheme. The defendant joined the unidentified person in the scheme after the victim realized the fraud had occurred and took on the role of receiving a box at the specified address. The victim sent an empty box to that address, and then the police arrested the defendant for attempted fraud when he received the box. (Id.; Penal Code, Act No. 45 of 1907, amended by Act No. 72 of 2017, arts. 44, 60, 246 & 250; English translation of Penal Code, Act No. 45 of 1907, Japanese Law Translation website (does not reflect amendments following Act No. 54 of 2007).)

The Fukuoka District Court acquitted the defendant because he had not participated in deceiving the victim. However, the Fukuoka High Court found the defendant guilty as a co-principal of attempted fraud. (Sup. Ct., Case No. 2017 (a) 1079.)

The Supreme Court upheld the High Court decision, stating that the defendant conspired with the unknown person after the person deceived the victim and was involved in the act of receiving money, which is one of the planned, coordinated acts that constitute a fraud. The Court stated, therefore, that the defendant is responsible for the attempted fraud, including the part in which he was not actively involved, as a co-principal. The Court stated that, in this case, the police tactics of having the victim act as if she was still deceived did not affect the defendant’s responsibility. (Id.)

Background

The number of cases of fraud identified by the police in Japan has increased since 2002. (Ministry of Justice, Crime Whitepaper, bk. 1, ch. 1, §§ 2 & 2(4) (2013), Ministry of Justice website (in Japanese).) The increase is due to “special fraud,” a type of fraud committed by strangers via phone, fax, or email, becoming more common. (Id.; Special Fraud (“Transfer Money” Fraud) (Dec. 28, 2017), Metropolitan Police Dept. website (in Japanese).) These special frauds mainly target elderly persons. (Headquarters Against Special Fraud, Regarding the Situation of Special Frauds During the First Half of 2017, at 2 (Aug. 4, 2017) (in Japanese), METROPOLITAN POLICE DEPT.) The case recently decided by the Supreme Court is considered an instance of special fraud.

Malaysia: Border Security Agency Act Comes into Force

Thu, 11/01/2018 - 17:30

(Jan. 11, 2018) On December 29, 2017, the Malaysian Border Security Agency Act 2017 came into force. (Malaysian Border Security Agency Act 2017 (Act 799) (AKSEM Act), e-Federal Gazette website; Hashini Kavishtri Kannan, All-New AKSEM Act Comes into Force Today, NEW STRAITS TIMES (Dec. 29, 2017).) The Act, which was passed by the Parliament in August 2017, establishes a new agency, the Malaysian Border Security Agency (Agensi Kawalan Sempadan Malaysia, AKSEM), which will be “responsible for curbing smuggling and other illegal activities along the country’s land borders.” (Kannan, supra; AKSEM Act s 3(2).) This agency will be overseen by a High Level Committee chaired by the Minister of Home Affairs and made up of other government ministers and senior officials from various agencies, and its activities will be coordinated by a Coordinating Committee. (AKSEM Act ss 5-10.)

AKSEM will absorb the existing Anti-Smuggling Unit (Unit Pencegahan Penyeludupan, UPP), which is a “loose set-up involving cooperation between several agencies including the police, immigration, Customs and the Road Transport Department.” (Id. s 30; Malaysia Sets Up New Agency to Target Smuggling, STRAITS TIMES (Oct. 25, 2016).) During the debate in the Parliament, the Deputy Prime Minister said that all 933 UPP personnel would be redeployed along with General Operations Force personnel to comprise an AKSEM force of 10,800, avoiding any need to create new posts or incur new costs. (Parliament Passes Malaysia Border Control Agency Bill, NEW STRAITS TIMES (Aug. 10, 2017).) Under the Act, border protection will ”involve the cooperation of five agencies, namely the police, the Immigration Department, the Royal Customs Department, national Anti-Drug Agency and the national Kenaf and Tobacco Board.” (Id.)

According to reports, the new agency will target the “illegal movement of cars, sugar, oil and even cooking gas tanks out of the country. The smuggling occurs mainly along the Thai border and from Sabah into Kalimantan, and there is also smuggling of goods into Singapore, officials say. Cheaper Thai rice, meanwhile, is smuggled into Malaysia, along with guns and drugs. Human trafficking rings are also active along the border, which is more than 600km [373 miles] long.” (Malaysia Sets Up New Agency to Target Smuggling, supra.)

Sudan: Women Arrested for Wearing Pants Are Released

Thu, 11/01/2018 - 14:30

(Jan. 11, 2018) On December 10, 2017, Sudanese authorities released 24 women arrested by morality police four days earlier for wearing pants at a party in the El Mamoura area of south Khartoum. (Sudanese Women Arrested ‘for Wearing Trousers’ Released, NEW ARAB (Dec. 11, 2017).) The women, who had been arrested despite obtaining a permit for their gathering, were released when the prosecution dropped the charges without comment at the district court hearing. However, the party’s sponsor was fined 10,000 Sudanese pounds (about US$1,493) “for holding a public party while the permit she obtained indicated the occasion of a ‘family farewell party,’ ” which the court ruled violated article 79 of the Criminal Code on the serving of alcohol in public places. (Sudan Court Fines Party Sponsor, Acquits Women in Trousers, DABANGA (Dec. 11, 2017); Criminal Code of 1991, issued Feb. 2, 1991 (in Arabic; click on “PDF” icon), WIPO Lex website; unofficial English translation of Criminal Code of 1991, ILO Natlex website.) The party organizer claimed “she had requested from the police administration a permit for a public party, and had not seen what was written in the permit paper she received.” (Sudan Court Fines Party Sponsor, supra.)

Criminal Code Provisions on Indecency

Following their arrest by the morality police, who reportedly have discretion to determine whether women’s clothes are “provocative” or not, the women were charged with violating article 152 of the Sudanese Criminal Code, which prohibits indecent acts in public, such as wearing indecent clothes. (Sudanese Women Arrested ‘for Wearing Trousers’ Released, supra.) The article provides that “[w]hoever in a public place acts or behaves indecently or contrary to public morality, or dresses in clothes that are obscene or contrary to public morality, causing an annoyance to public feelings, shall be punished with flogging which may not exceed forty lashes or with a fine or with both. (Sudan Criminal Code of 1991, art. 152(1) (translation by author).)

Reaction to the Arrest

The arrest of the women, which produced an international uproar, was condemned by human rights activists, who claim that the law is applied arbitrarily and that tens of thousands of Sudanese women are arrested and flogged annually for indecency. (Sudanese Women Arrested ‘for Wearing Trousers’ Released, supra.) Amira Osman, a women’s rights activist, maintains that the women in El Mamoura did not commit any public indecency because their party took place in a closed hall in a building. (Id.)

Another Indecent Dress Case Dismissed

In another case involving the wearing of indecent attire, the Khartoum Court of First Instance on December 21, 2017, found women’s rights activist Winnie Omar not guilty for lack of evidence. Omar had likewise been arrested by the morality police and charged by the prosecutor with indecency for wearing pants in public. Omar was arrested hours after attending the hearing of the 24 women who had been charged with indecency for wearing pants at the party in El Mamoura. The judge reportedly ruled that Omar appeared to have been under surveillance before her arrest and that the clothing she was wearing “was familiar to the Sudanese.” (Abdel Hamid Awad, Sudanese Activist Winnie Omar Found Not Guilty of Wearing Provocative Clothes, NEW ARAB (Dec. 21, 2017) (in Arabic); Sudan Court Dismisses ‘Indecent Clothing’ Charges Against Woman Activist, DABANGA (Dec. 22, 2017).) Following her release, Omar was quoted as saying that during her detainment, the contents of her phone and laptop were searched, and the arresting officer told her he did not like the way she walked. Omar called the provision in the Criminal Code regulating the appearance of women “a flagrant violation of personal freedoms” that needed to be reformed. (Sudan Court Dismisses ‘Indecent Clothing’ Charges Against Woman Activist, supra.)

Following this court decision, the Organization to Defend Women’s Rights in Sudan announced that it will file a lawsuit before the Sudanese Constitutional Court to abolish article 152 of the Criminal Code, declaring that the article infringes on the rights of women and their liberty by restricting what they can wear. (Sudanese Activist Winnie Omar Found Not Guilty of Wearing Provocative Clothes, supra.)

Taiwan: Proposal to Grant Witnesses Right to Legal Assistance During Questioning

Tue, 09/01/2018 - 20:30

(Jan. 9, 2018) On December 22, 2017, two members of Taiwan’s legislature, John Wu and Lin Wei-chou of the Nationalist Party (Kuomintang, KMT), made public at a news conference a proposed draft amendment to Taiwan’s Code of Criminal Procedure that would give witnesses who are being questioned by prosecutors or investigators the right to have a lawyer present. (Sean Lin, Lawyers for Witnesses Bill Proposed, TAIPEI TIMES (Dec. 23, 2017).)

Section 2, articles 175 through 196-1, under chapter 12 on evidence of the Criminal Procedure Code, is on witnesses. The draft amendment calls for changes to article 175(1), 192, and 196(1). (Li Jen-lung, In the Wang Bingzhong Case, Witnesses Have No Lawyers to Accompany and Argue for Them, Pan-Blue Puts Forward a Proposal to Amend the Law, TAIWAN TIMES (Dec. 22, 2017) (in Chinese); Code of Criminal Procedure (as last amended Dec. 12, 2007), LAWBANK; Chinese text (July 28, 1928, as last amended Nov. 16, 2017), LAWBANK.)

Article 175, the main target of the proposed amendment, sets forth the procedures to be followed by persons summoned as witnesses by a law enforcement agency, “but does not say they can request the presence of a lawyer when being questioned,” Wu and Lin pointed out. (Sean Lin, supra.) Therefore, they maintain, “[t]he article effectively denies witnesses the right to seek legal advice when being questioned, which is clearly a loophole and an infringement of their human rights ….” (Id.) This is in contrast to defendants, who have the right under the Code to be accompanied by a lawyer when undergoing questioning, “effectively offering defendants more protection, which is unreasonable,” Lin stated. (Id.) Article 192 makes applicable to the examination of a witness the Criminal Code provisions on being examined at a scheduled time (Code of Criminal Procedure art. 74) and the provision of an interpreter or the permissibility of being examined in writing for the deaf or mute (id. art. 99).

Draft Provisions

Under the Code of Criminal Procedure, the accused has the right to remain silent. (Id. art. 95(2).) The draft amendment provides that witnesses have the right to consult a lawyer on whether to remain silent in response to certain questions, so as to avoid forceful elicitation of information from them by prosecutors or investigators—for example, by the threat of an indictment, Wu stated. (Sean Lin, supra.)

Under other draft provisions,

  • the entire questioning process would be recorded, as is the case when questioning defendants;
  • relatives within a certain degree of consanguinity to the litigant and persons obligated to maintain company confidentiality would be exempt from being questioned, as would a person of interest who could reveal information that would jeopardize national security or harm the public interest;
  • witnesses would be prohibited from hiring the same lawyer or using the same law firm as the defendant, in order to avoid collusion; and
  • more than one suspect sharing a lawyer or using the same law firm would also be banned, as would payment by another party of witnesses’ legal fees. (Id.)

Background

The proposal comes in the wake of the Investigation Bureau’s arrest of New Party spokesman Wang Ping-chung, who was listed as a witness in an espionage case implicating former graduate student Zhou Hongxu. (Id.) Zhou was accused of recruiting spies on behalf of mainland China and imprisoned in September 2017 for a year and two months, after being convicted by the Taipei District Court of violating Taiwan’s National Security Act. (Taiwan Jails Chinese Grad Student Zhou Hongxu for Recruiting Spies, HONG KONG FREE PRESS (Sept. 15, 2017).) Wang was taken to the Bureau and questioned for 18 hours without being allowed to be accompanied by a lawyer, and his access to the outside world was cut off. “That he was questioned as a defendant showed that prosecutors and bureau officials were exploiting the loophole,” Lin stated, adding, “[n]ever have witnesses been searched or arrested by warrant.” (Sean Lin, supra.)

The Pan-Blue Coalition stated in response to those who might question the timing of the proposal, in view of the Wang Ping-chung incident, that the proposed revisions have been under discussion for a long time in legal circles, and his case simply highlights this longstanding problem. (Li, supra.) Wu similarly stated, “the lack of legal protection for witnesses has long been a source of controversy in the legal sector,” and “other nations that follow the rule of law have long since banned law enforcers from questioning witnesses as they do suspects.” (Sean Lin, supra.)

Poland: Criminal Background Check for Financial Sector Job Applicants Introduced

Tue, 09/01/2018 - 17:30

(Jan. 9, 2018) On January 1, 2018, amendments to the Polish Labor Code and other laws regulating employment in the financial sector entered into force. (Law of October 24, 2017 on Amending Financial Sector Legislation (DZIENNIK USTAW [OFFICIAL GAZETTE] 2017, No. 2491).)  The new provisions, which were drawn up by Poland’s Ministry of Development, extend the list of business areas in which the review of job applicants’ criminal records and mandatory background checks for those seeking employment in financial institutions are required. (Id. art. 3(2).)

According to legislators, this measure is needed because the lack of such a review has created a vacuum that is especially undesirable in staffing positions charged with high financial risk, valuable assets management, significant financial responsibility, or access to protected data and information. (Lukasz Guza, Banks and Firms Will Review Employee’s Criminal Record, GAZETA PRAWNA.PL (Oct. 10, 2017) (in Polish).)

Under the new Law, employers will be able to request that an applicant provide either a written statement that she or he has no criminal record or a formal background certificate issued by the National Criminal Record Office. The certificate cannot be more than three months old and must prove that the job applicant has never been convicted of intentional crimes against property or those related to documents and information protection, the safety of an economic network, financial exchanges, securities, the violation of financial market rules, or payment services. Rules of expungement should apply. Refusal to provide proof of having a clear criminal record may serve as a reason to deny employment. This requirement applies to all candidates, regardless of the type of employment they are seeking in private and government financial institutions. The Law specifies that it applies to employees of the National Bank of Poland, the Polish Financial Supervision Authority, the Bank Guarantee Fund, the Financial Ombudsman, and the Insurance Guarantee Fund. The same rules apply to providers of electronic financial services and employees of foreign banks working in Poland. The cost of obtaining the certificate is to be reimbursed by the employer. Employers will also be allowed to collect biometric data of employees if this is deemed necessary to preserve information processed by the financial institution (Law of October 24, 2017.)

The Law also requires financial sector employers to review information on whether a job applicant is on the “Denied Persons List” established by the US Department of Commerce or the EU list of people accused of fostering terrorism. (Id.; Council Regulation (EC) No 2580/2001 of 27 December 2001 on Specific Restrictive Measures Directed Against Certain Persons and Entities with a View to Combating Terrorism, EU Publications; Denied Persons List (last modified Nov. 22, 2016), US Bureau of Industry and security.)

Privacy advocates express concerns that this requirement “is very broad and may affect nearly all employees” of financial institutions. (Anna Kobylanska, Poland’s Draft Law on Processing Employee Data Under the GDPR, IAPP.)

Prepared by Michal Dolinski, Law Library Fellow, under the supervision of Peter Roudik, Director of Legal Research.

Cambodia: Whistleblower Law Being Drafted

Tue, 09/01/2018 - 14:30

(Jan. 9, 2018) Om Yentieng, the head of Cambodia’s Anti-Corruption Unit (ACU), speaking on December 25, 2017, stated that the drafting of a law on the protection of whistleblowers and witnesses is nearly complete. (Phak Seangly, Cambodia: Whistleblower Law Nearly Done: ACU, PHNOM PENH POST ONLINE (Dec. 26, 2017), Open Source Enterprise, Document No. SER2017122707534238.) The law has been in the planning process since November 2014 and is intended in part to make national laws comply with the UN Convention Against Corruption, which Cambodia acceded to in 2007. (Chhay Channyda & Zoe Holman, Whistleblower Law in the Works, ACU Says, PHNOM PENH POST (Oct. 2, 2015); Signature and Ratification Status (as of Oct. 3, 2017), United Nations Office on Drugs and Crime (UNODC) website; United Nations Convention Against Corruption (Oct. 31, 2003, in force from Dec. 14, 2005), UNODC website.)

According to the ACU, the draft is 90% complete and will next be sent to the Justice Ministry for consultation on the penalty provisions. Once the Ministry completes its review, the draft will go to the National Assembly. (Seangly, supra.) The law is designed to provide immunity from civil or criminal liability, as well as protection and confidentiality, to whistleblowers. (Id.) These protections have been considered especially important by the ACU for witnesses in drug abuse, terrorism, and human trafficking cases. (Channyda & Holman, supra.)

Background 

The nongovernmental organization Transparency International (TI) has criticized Cambodia in the past and now welcomes the draft legislation. TI’s Pech Pisey stated in 2015 that whistleblowers faced “significant risks” and added that defamation provisions in the Penal Code made individuals “hesitant to report and/or be a witness of [sic] corruption cases or any other criminal cases due to the fear of retaliation, fines and possibly imprisonment.” (Id.; Penal Code, 2009, arts. 305-310, United Nations Office on Drugs and Crime website.) The separate anti-corruption law also contains anti-defamation provisions, adding a risk to whistleblowers. That law punishes “defamation or disinformation” connected with corruption complaints that “lead to useless inquiry” with one to six months of imprisonment and a fine of one to ten million riel (about US$246-2,460). (Draft Law on Anti-Corruption (as adopted Jan. 17, 2010, last amended Aug. 4, 2017), art. 41, OPEN DEVELOPMENT CAMBODIA (bilingual version, click on “download” for English or Khmer).)

For his part, Om Yentieng noted that TI had not provided needed technical assistance and ranked Cambodia low on its global transparency scale (Seangly, supra.)

Commenting in 2015, attorney Sok Sam Oeun said that a new law could also make it easier to indict corrupt officials. He stated, “[i]n the current system, in any investigation by the government, the court always accepts the word of officials as the truth. … Often, people want to give information to the ACU, but they are concerned and scared to see the accused.” (Channyda & Holman, supra.)

Jordan, Tunisia: Parliamentary Measures Aimed at Israel

Mon, 08/01/2018 - 20:30

(Jan. 8, 2018) On December 10, 2017, members of the Parliaments of Jordan and Tunisia took steps toward adopting legal measures against the state of Israel.

Tunisian Measure

Tunisian members of Parliament signed a petition to speed up the voting process for a draft law to ban any activity that is considered to be an act of normalization of relations with Israel. The draft law, which was proposed in 2015, is sponsored by 95 Tunisian parliamentarians, according to the Al-Araby newspaper. (Tunisia Lawmakers Move to Outlaw “Normalization” with Israel, NEW ARAB (Dec. 10, 2017) (in Arabic).)

The members who had sponsored the proposed law stated that the main goal of the draft law was to advocate what they called the “Palestinian cause.” They also stated that the draft law would enhance the role of Tunisia in defending the rights of Palestinians. (Id.)

Jordanian Measure

Members of the Jordanian Parliament voted unanimously to review the existing peace agreement with the State of Israel that was concluded in October 1994. The purpose of this measure, according to news reports, is to examine all provisions of the peace treaty to record violations allegedly committed by the government of Israel. (Karim Traboulsi, Jordanian Lawmakers Vote to “Review” Peace Treaty with Israel, AL ARABY (Dec. 10, 2017); Treaty of Peace Between the Hashemite Kingdom of Jordan and the State of Israel (Oct. 26, 1994), King Hussein of Jordan website.)

The vote was accompanied by the signing of a memo by 14 members of Parliament calling for the complete abolishment of the peace agreement.(Id.) This action follows an incident that took place on July 23, 2017, at the Israeli embassy compound in Amman, Jordan. According to a news report of the incident, a guard at the Israeli embassy, Ziv Moyal, shot and killed two Jordanians – seventeen-year-old Muhammad Jawawdeh and Bashar Hamarneh, a physician. The Israeli Foreign Ministry said Moyal had acted in self-defense after Jawawdeh had stabbed him with a screwdriver. Hamarneh was a bystander. (Ben Lynfield, 2017: A Year of Change and Challenge for Israel’s Relations in the Region, JERUSALEM POST (Dec. 28, 2017).) However, the King of Jordan has demanded that the Israeli government put the Israeli security guard on trial. (Suleiman Al-Khalidi, Jordan’s King Demands Israel Put Guard on Trial for Killing Jordanians, REUTERS (July 27, 2017).) Furthermore, Jordan’s attorney general has announced that he intends to pursue murder and illegal-weapons-possession charges against the Israeli security guard in an international court, where he does not enjoy diplomatic immunity as he did in Jordan. (Jack Khoury, Israeli Embassy Guard to Be Charged With Murder, Jordan Says, Vowing to Head to International Courts, HAARETZ (July 28, 2017).)

China: Revisions to Laws on Judges and Prosecutors Proposed

Mon, 08/01/2018 - 17:30

(Jan. 8, 2018) On December 22, 2017, the People’s Republic of China (PRC) National People’s Congress Standing Committee (NPCSC) began discussions on draft amendments to the country’s laws on judges and prosecutors. Five days later, the legislative body completed a first reading of the two draft revisions. (China Mulls Revisions to Laws on Judges, Prosecutors, XINHUANET (Dec. 22, 2017); Judges Law of the PRC (promulgated on Feb. 28, 1995, amended on June 30, 2001), National People’s Congress (NPC) website; Chinese text, Central People’s Government of the PRC website; Public Procurators Law of the PRC (promulgated on Feb. 28, 1995, amended on June 30, 2001), NPC website (bilingual English and Chinese texts).)

Draft Provisions on Judges

The draft proposal adds provisions to the Judges Law to establish selection committees responsible for examining the professional competence of judges who are candidates for positions in the Supreme People’s Court (SPC) and in provincial-level courts. (China Mulls Revisions to Laws on Judges, Prosecutors, supra.) The draft also raises the professional standards for becoming a judge, requiring prospective judges to have at least five years of legal practice. Currently the Law on Judges provides that those holding a master’s or doctoral degree may be recruited as judges after one year of legal practice. (Id.; Judges Law of the PRC art. 9(6).)

In addition, the draft amendment provides for tighter supervision of judges by requiring that committees be set up in the SPC and in provincial-level courts to prescribe punishments for judges who have made “wrong decisions with serious consequences, as a result of negligence or deliberate breach of laws and regulations.” (China Mulls Revisions to Laws on Judges, Prosecutors, supra.) Another proposed revision would ban judges from working part time in profit-making organizations, but permit them, upon approval, to teach or do research part time in institutions of higher education or research. (Id.) Finally, the draft states that persons whose notary or law practice certificates have been revoked are to be banned for life from serving as judges. (Id.)

Draft Provisions on Prosecutors

The draft revision to the Law on Public Procurators introduces a selection mechanism for prosecutors similar to that for judges noted above—that is, the establishment of committees to select prosecutors for the Supreme People’s Procuratorate (SPP) and provincial-level procuratorates. (Id.) The proposal calls for prosecutors to be selected from among lawyers, legal scholars, and others who practice law. (Id.) This draft, like the one on revisions to the Judges Law, provides for the establishment of punishment committees in the SPP and provincial-level procurators in order to tighten supervision over prosecutors. (Id.)

Related Development

The NPC Standing Committee also conducted a first review of a draft law on the people’s (lay) assessor system (renmin peishenyuan), legislation that “allows for a wider range of candidates to become jurors and explicitly states their duties.” (Draft Law Clarifies Rules on People’s Juries, XINHUANET (Dec. 21, 2017).) The draft is based on a 2004 decision adopted by the NPCSC that launched the lay assessor system on a trial basis, and on experience gained since April 24, 2015, with a pilot implementation of the system in 50 courts in ten regions throughout China. (Id.; Wang Mingyan, A Closer Look at China’s People’s Jury System, CGTN (Mar. 1, 2017) ; Decision of the Standing Committee of the National People’s Congress on Improving the System of People’s Assessors (Decision) (adopted Aug. 28, 2004, in force on May 1, 2005), NPC website; Chinese text of the Decision, NPC website; see also People’s Assessor System Reform Pilot Implementation Measures (promulgated May 20, 2015), China Law Translate website.)

Section 38 of the Organic Law of the People’s Courts provides that “citizens who have the right to vote and stand for election and have reached the age of 23 shall be eligible to be elected as lay assessors; however, persons who have once been deprived of political rights shall be excluded.” In practice, most of the lay assessors are nominated by working units and selected by courts. (Organic Law of the People’s Courts of the PRC (adopted July 1, 1979, as last amended Oct. 31, 2006, NPC website.)

The draft law specifies that the jury system is applicable to “civil, criminal, and administrative cases in the first instance that involve group or public interests, receive widespread public attention, or have major social impact, except cases where only judges are allowed.” (Draft Law Clarifies Rules on People’s Juries, supra.) Some other highlights of the draft law are as follows:

  • citizens with a high school education or above, instead of the current requirement of higher education, can be selected as jurors;
  • the age limit for lay assessor candidates is changed from 23 years and above (in the Decision, art. 4(2) and also in the Organic Law of the Courts, art. 38) to 28 years and above;
  • lay assessor selection is random, from among eligible local residents, but with a certain proportion of jurors chosen on the basis of personal applications and referrals by organizations;
  • participation by lay assessors is not only in the form of three-person, but also seven-person, collegiate benches together with judges;
  • equal rights of lay assessors with judges on the three-person collegiate benches, but on the seven-person benches, the assessors may be involved only in fact-finding, not in the application of legal clauses;
  • the use of seven-person collegiate benches for criminal cases likely to involve a sentence of over ten years of imprisonment for the defendant, public interest litigation cases, and major cases that affect the public interest in such matters as land expropriation, environmental protection, and food safety;
  • inclusion of provisions on the terms of certain types of financial compensation for lay assessors; and
  • the restriction of the term of lay assessors to one term of five years, typically not permitting a second term of work, and imposition of an obligation on the courts to set a limit on the annual number of cases an assessor can hear. (Id.)

In addition, the draft law states that refusal to serve as a lay assessor will result in public notification of the person’s work unit and household registration office and that those who do participate in trial activities will not have their wages deducted by the employer. (Draft Jury Law: Additional 7-Person Collegiate Panel to Hear Major Cases, SINA (Dec. 22, 2017) (in Chinese); see also Wang Mingyan, A Closer Look at China’s People’s Jury System, supra).)

Japan: Supreme Court Dismisses Appeal Concerning Noises from Daycare

Mon, 08/01/2018 - 14:30

(Jan. 8, 2018) On December 19, 2017, Japan’s Supreme Court dismissed an appeal by a man who had complained about noises from a daycare center for preschool-age children. (Gen Okamoto, “Noisy” Voices of Children Playing at Daycare, Loss of Lawsuit by Man Affirmed, ASAHI SHIMBUN (Dec. 21, 2017) (in Japanese) (it appears that the decision was not officially reported by the Court).)

The first instance court, the Kobe District Court, found the noise level at the border of the daycare’s property to be higher than the legal upper limit when children are playing in the yard. However, the children’s outdoor play is limited to particular times. If an average noise level is calculated, including the time the children are inside, the level is within the limit. Though the Court acknowledged that the noise caused stress to the plaintiff, the Court found that the noise was within socially acceptable limits. (Kobe Dist. Ct., Case No. 2014 (wa) 1195 (Feb. 9. 2017), COURTS.GO.JP (click characters beside PDF icon near the bottom) (in Japanese).)

The text of the decision of the second instance court, the Osaka High Court, is not available. Newspapers reported that the High Court emphasized the public role of daycare centers and affirmed the District Court decision. (Okamoto, supra.)

Many daycare businesses have decided against opening new centers because of opposition from nearby residents in recent years. (Kiyoaki Sugawara, Cases Concerning Noises from Daycares, M&P Legal Note 2017 No. 4-1 (Apr. 30, 2017), Matsuda and Partners website (in Japanese).) The attention generated by the case has led to a great number of follow-up online articles and discussions about noisy daycare centers. (Maki Nagasawa, Mixed Reactions for Man’s Loss of Lawsuit Complaining About “Noisy Daycare,” IRORIO (Dec. 22, 2017) (in Japanese).)

South Africa: Bill to Grant Parental, Adoption, and Surrogacy Leave Clears Hurdle

Fri, 05/01/2018 - 20:30

(Jan. 5, 2018) On November 28, 2017, the South African National Assembly passed the first-ever private member’s bill to amend the Basic Conditions Employment Act 75 of 1997 (Southern African Legal Information Institute (SAFLII) website) and the Unemployment Insurance Act 63 of 2001 (SAFLII website). The amendment bill, among other things, provides for parental leave (applicable to parents not entitled to maternity leave), adoption leave (which until now has not been available as a right), and “commissioning parental leave,” a form of leave available to persons who come to parenthood through surrogacy. (Ernest Mabuza, New Bill Enforces ‘Same-Sex Parenting’ Rights, and Gender-Neutral Parental Leave, BUSINESS DAY (Nov. 28, 2017).) Before it can be enacted, the amendment bill must be passed by the National Council of Provinces, the other house of the country’s bicameral legislature, and signed by President Jacob Zuma. (Constitution of the Republic of South Africa 1996, § 75, South Africa government website.)

Amendments to the Basic Conditions of Employment Act

At present, under the Basic Conditions of Employment Act, a working mother is accorded four months of maternity leave, and an employee who has had a miscarriage during her third trimester or bears a stillborn child is entitled to six weeks of maternity leave. (Basic Conditions of Employment Act § 25.) In addition, the Act provides for what is known as “family responsibility leave.” (Id. § 27.) This entitles an eligible person (one who has been in a job for at least four months and who works at least four days a week) to three days of leave every year in the event of the birth, sickness, or death of the employee’s child or death of a spouse or other close relatives, including an adopted child. (Id.) While the maternity leave benefit is financed through the Unemployment Insurance Fund (see below), the family responsibility leave is paid for by employers. (Id.) Under the Basic Conditions of Employment Act, the “number of days and the circumstances under which [family responsibility] leave is to be granted” may be changed through a collective agreement. (Id.)

The amendment bill seeks to make several, important changes. It introduces ten-day parental leave for parents not entitled to maternity leave in the event of childbirth or adoption. (Labour Laws Amendment Bill, B 29-2017 § 3, PARLIAMENT.GOV.ZA.) The amendment bill also introduces what is known as “adoption leave.” While the Unemployment Insurance Act, as it currently stands, accords adoption benefits, until now there has not been an obligation on the part of employers to grant adoption leave. (Unemployment Insurance Act § 12; Labour Laws Amendment Bill, Memorandum of Objectives.) Under this proposed provision, an adoptive parent of a child under two years of age is entitled to ten weeks of adoption leave. (Labour Laws Amendment Bill § 3.) In the case of two adoptive parents, although only one of them is entitled to adoption leave, the other would be eligible for parental leave. (Id.) In addition, the amendment bill introduces what is known as “commissioning parental leave” for an employee who is a commissioning parent in a surrogate motherhood agreement. (Id.) This benefit is symmetrical to the concept of adoption leave, in that an employee who qualifies is entitled to ten weeks of leave, only one of two commissioning parents is eligible for it, and the other parent may claim parental leave. (Id.) Further, much like the protection accorded to maternity leave under the current Basic Conditions of Employment Act, the amendment bill would bar a reduction of parental, adoption, or commissioning parental leave through a collective bargaining agreement. (Basic Conditions of Employment Act § 49; Labour Laws Amendment Bill § 5.)

Under the amendment bill, employees would also retain the right to three days per year of employer-paid family responsibility leave, usable in the event of a child’s illness or a close family member’s death. (Id. § 4.)

Amendments to the Unemployment Insurance Act

The proposed bill would amend the Unemployment Insurance Act in order to finance parental and commissioning parental benefits through the Unemployment Insurance Fund, which already pays for adoption and maternity benefits. (Labour Laws Amendment Bill § 8.) It also provides for the payment of parental, adoption, and commissioning parental benefits at 66% of earnings of the eligible beneficiary, subject to the applicable income threshold cap. (Id.)

Israel: Restrictions on Ceding Areas in Jerusalem Municipality to Foreign Entities

Fri, 05/01/2018 - 17:30

(Jan. 5, 2018) On January 2, 2018, the Knesset (Israel’s Parliament) passed an amendment to Basic Law: Jerusalem Capital of Israel, defining the territory over which delegation of powers by the Israeli government to “a foreign political or governing power, or to another similar foreign authority” is prohibited. (Basic Law: Jerusalem Capital of Israel (Amendment No. 2) (Amendment Law), unofficial text of the Law, Knesset website (click on last document listed in the left column) (in Hebrew), amending Basic Law: Jerusalem Capital of Israel (Law), SEFER HAHUKIM [BOOK OF LAWS, SH] 5740 No. 980 p. 186, as amended, unofficial translation, Knesset website.)

The Amendment Law prohibits the transfer of powers to foreign political or governing powers of

any area within the boundaries of the municipality of Jerusalem, the area described in the addendum to the declaration of the expansion of the limits of the Jerusalem municipality of 20 Sivan 5727 (28 June 1967), that was issued under the Municipalities Ordinance, as in effect on the effective date of the [Amendment Law]. (Amendment Law § 1.)

The declaration of June 28, 1967, expanding the limits of the Jerusalem municipality provides a detailed description of the areas included in the Jerusalem municipality on the date of its issue. (KOVETZ HATAKANOT (subsidiary legislation) No. 2065 p. 2693, NEVO LEGAL DATABASE (in Hebrew) (by subscription).)

The Amendment Law requires a supermajority of 80 of the 120 Knesset members to repeal the prohibition on transfer of powers to foreign entities. The repeal of the requirement for a supermajority, however, merely requires a simple majority. (Amendment Law § 2.)

Commentators have suggested that the Amendment Law will make it harder to implement a plan to split off Palestinian neighborhoods such as “the Shuafat refugee camp, the village of Aqeb, and other neighborhoods located beyond the separation barrier.” (Nir Hasson & Jonathan Lis, Analysis: The Israeli Right’s Vaunted Jerusalem Amendment Changes Nothing, HAARETZ (Jan 3, 2018).)

The new amendment, they suggested, does not change much as

[a] future government could simply void the law with a regular majority of 61 votes. In any case, a Basic Law: Referendum already requires an 80-vote majority for approving conceding territory in Jerusalem – which too can be cancelled with a simple majority of 61. (Id.; Basic Law: Referendum, SH 5774 No. 2443 p. 400; for a commentary on this law, see Ruth Levush, Israel: New Basic Law on Requirements for Approval of Territorial Concessions, Global Legal Monitor (Nov. 23, 2010).)

Israel: New Law Defines Factors for Approving Employment on the Sabbath

Fri, 05/01/2018 - 14:30

(Jan. 5, 2018) On December 26, 2017, the Knesset (Israel’s Parliament) passed a law detailing conditions for approval of employment on the Sabbath. (Hours of Work and Rest Law (Amendment No. 16) Law, 5778-2017 (the Amendment Law).  (SEFER HAHUKIM [BOOK OF LAWS, SH] 5778 No. 2675 p. 73, RESHUMOT [OFFICIAL GAZETTE] (enter 2675 in upper left box and click on search at bottom left) (in Hebrew)), amending the Hours of Work and Rest Law, 5711-1951, SH 5711 No. 76 p. 204 (the Law), as amended.)

The Law requires that an employee’s weekly rest not be less than thirty-six consecutive hours in a week. For Jews the weekly rest period must include Saturday; for non-Jews, “the Sabbath day or Sunday or Friday, whichever is ordinarily observed by him as his weekly day of rest.” (Id. § 7.) The Law authorizes the Minister of Labor, Welfare and Social Services (the Minister), however, to permit an employee to be employed during all or any of the hours of weekly rest if Minister is satisfied that interrupting the work is likely to endanger state defense, public security, or the economy, or the process of work or supply of services that the Minister considers to be essential to public welfare. (Id. § 12.)

The Amendment Law requires the Minister to consider the following factors in determining whether to permit employment during an employee’s hours of weekly rest:

  1. the employee’s welfare;
  2. the heritage of Israel;
  3. advancement of an alternative that does not require employment during the hours of weekly rest; and
  4. the level of harm to the public sphere that is expected in the location for which the permit is requested if that request is not granted. (Amendment Law § 1.)

The Amendment Law was reportedly proposed by United Torah Judaism, a joint list made up of ultra-Orthodox parties, as a precondition for their remaining in the coalition government. The proposed legislation was submitted in connection with the light-train construction that had been performed during weekdays, including on Saturdays.  (Final Approval: Grant of Permits to Work on the Sabbath, in Consideration of Heritage, GLOBES (Dec. 26, 2017) (in Hebrew); for information on the United Torah Judaism list, see United Torah Judaism, ISRAEL DEMOCRACY INSTITUTE (last visited Jan. 2, 2018).)

Italy: New Law Changes Retirement Age

Thu, 04/01/2018 - 20:30

(Jan. 4, 2018) On December 5, 2017, a new law adjusting the age requirements for pension benefits entered into force in Italy. (Decree of December 5, 2017, Adjusting the Requirements to Access Retirement Benefits to the Increase of Life Expectancy (the Decree), GAZZETTA UFFICIALE (G.U.) (Dec. 12, 2017) (in Italian).) The Decree was enacted in accordance with a 2009 Decree-Law which provided that, beginning on January 1, 2015, the age requirements for accessing the Italian retirement system must be adjusted to reflect the increase of life expectancy, as determined by the National Statistics Institute and validated by EU authorities. (Decree-Law No. 78 of July 1, 2009, on Anticrisis Measures and Also on the Extension of Terms, G.U. (July 1, 2009) (in Italian).)

Under the new legislation, beginning January 1, 2019, the age requirement for accessing retirement benefits established in Italian legislation increases by five months. The retirement age in Italy is now 66 years and 7 months for men and 65 years and 7 months for women. (Retirement Age in Member States, FinNish Centre for Pensions (last visited Jan. 3, 2018).)

Switzerland: Revision of Adoption Law Enters into Force

Thu, 04/01/2018 - 17:30

(Jan. 4, 2018) On January 1, 2018, a revision of the Swiss adoption law entered into force. The amendment of the Civil Code allows stepchild adoption for same-sex registered partners and couples in a de facto marriage (cohabitation), lowers the minimum age for persons eligible to adopt, introduces a maximum age difference between adopted child and adoptive parents, lowers the minimum-required duration of cohabitation for the adoptive parents, and relaxes adoption secrecy rules. (Schweizerisches Zivilgesetzbuch (Adoption) [Swiss Civil Code (Adoption)], June 17, 2016, Amtliche Sammlung des Bundesrechts [AS] [OFFICIAL COMPILATION OF FEDERAL LAWS] 3699 (2017).)

Stepchild Adoption

The amendment expands the right to adopt the child of a partner to couples in same-sex registered partnerships and couples in de facto marriages. (Id. art. 264c, ¶ 1.) This option had previously been available only to married couples. A stepchild adoption is granted only if the couple have been living together for at least three years, down from the previous requirement of five years. (Id. art. 264c, ¶ 2.)

Age Requirements and Minimum Duration of Cohabitation

The amendment lowers the minimum age for persons eligible to adopt from 35 to 28 years. (Id. arts. 264a, ¶ 1, 264b.) In addition, a new maximum age difference between the child and the adoptive parent of no more than 45 years is introduced. (Id. art. 264d, ¶ 1.) The old law required only a minimum age difference of 16 years. In exceptional cases, a deviation from the age requirements is possible if it is in the best interest of the child. (Id. arts. 264a, ¶ 2, 264b, ¶ 4, 264d, ¶ 2.)

Furthermore, a married couple willing to adopt a child must have been living together for at least three years, down from the previously required five years. (Id. art. 264a, ¶ 1.)

Adoption Secrecy Rules

The amendment relaxes the rules on adoption secrecy. Under the new rules, biological parents may receive information on the identity of an adult child if the child has given consent. (Id. art. 268b, ¶ 3.) Identifying information on a minor child and adoptive parents may be released only to the biological parents if the child is capable of discernment and both the child and the adoptive parents have consented to have the information released. (Id. art. 268b, ¶ 2.)

The new rules also provide for a right of the minor child to receive nonidentifying information on his or her biological parents. Identifying information will be provided only if the child can prove that there is a legitimate reason to receive that information. (Id. art. 268c, ¶ 2.) Adult children have an unconditional right to receive the personal data of their birth parents and other information. In addition, adult children may request information on direct descendants of their birth parents if these descendants are of age and have consented to the disclosure of their data. (Id. art. 268c, ¶ 3.)

Lastly, the amendment allows the adoptive parents to grant the biological parents a right to personal contact with the minor child. Such an agreement and any amendments to it must be approved by the child protection agency in the canton in which the child resides. A child must be heard before such an agreement is made and must consent if capable of discernment. A child has the right to refuse to have contact with his or her birth parents at any time. (Id. art. 268e.)

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