Comparative Law Review <p>„Comparative Law Review” <strong>(ISSN 0866-9449, e-ISSN 2391-7644) </strong>(„CLR”) is an open access, peer-reviewed and refereed international journal published by the Faculty of Law and Administration at Nicolaus Copernicus University in Toruń (Poland) since 1989 (with some intervals). The scope of „CLR” includes both private and public law, with particular focus on comparative studies. The Editors encourage authors to submit articles and shorter notes that are interdisciplinary in nature and/or analyse a legal problem from a comparative perspective. We particularly welcome proposals elaborating on how the comparative method is applied in domestic and international law-making and jurisprudence. Consequently, we invite original contributions on public international law and EU law. By the same token, we welcome papers dealing with all fields of domestic law, legal theory and philosophy, as well as history of law.</p> <p>The journal is published in both <strong>print and online</strong> versions. It is a fully open access journal, thus the articles published in CLR are easily searchable on the Internet (via Google Scholar, BASE, etc.). There are <strong>no charges</strong> for article processing, article submission or <strong>open-access policy </strong>for the authors or their institutions. </p> <p>The journal is indexed with and included in <strong>Index Copernicus Journals Master List, ERIH PLUS, CEEOL, DOAJ and SCOPUS </strong>(starting from vol. 25)<strong>.</strong></p> <p><span id="result_box" lang="en"><span class="hps"> </span></span></p> Uniwersytet Mikołaja Kopernika w Toruniu en-US Comparative Law Review 0866-9449 The Defects of Nigeria’s Secured Transactions in Movable Assets Act 2017 and Their Potential Repercussions on Access to Credit: a Comparative Analysis and Lessons from the Anglo-American Law <p>It has been sufficiently established in law and finance literature that an effective legal framework that governs non-possessory security transactions is a key component in the realization of financial inclusion and affordable access to credit in market economies. Recently, the Nigerian lawmakers enacted the Secured Transactions in Movable Assets Act 2017 (STMA), which was modelled after the United States’ Article 9 of the Uniform Commercial Code (UCC Article 9) and its unitary-functional approach to security interests. Arguably, some of the STMA’s provisions are defective: they do not reflect the local conditions in Nigeria and are likely to frustrate its section 1 aim of broadening access to credit for individuals and small businesses. The STMA recognizes registration <br />as the main method of perfection: yet there are multiple but unlinked movable collateral <br />registries in Nigeria which ultimately constitute a breeding ground for secret liens. This <br />article argues that the relegation of other perfection methods, such as ‘possession’ and <br />‘control’, will diminish the economic success of the reformed law. It calls for a reconsideration of the rules governing publicity and the perfection of security interests under the <br />STMA with insights and lessons from the UCC Article 9 and its underlying case law.</p> Williams Chima Iheme Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 9 46 10.12775/CLR.2021.001 Better to Explain or to Testify? The Position of the Accused as a Source of Oral Evidence in a Criminal Trial in a Comparative Perspective <p>In this article the position of the accused as a source of personal evidence in three different European legal systems: Poland, Germany, and England, will be presented. This analysis will be oriented to understand the way of functioning of the two different models of giving statements of fact by the accused at a criminal trial. The main difference is that in the common law model of criminal trial the accused may only present evidence by testifying as a witness speaking about what happened, whereas in the continental model the accused gives a specific personal type of evidence (that in the Anglo-Saxon literature is rather described as “oral evidence”) that is known as explanations. From this differentiation several consequences arise: among others, the possibility of presenting untruthful explanations and presenting many versions of events in the continental model which have to be assessed by the judges. At the same time, the same right of the accused to silence and not to give incriminating evidence applies in both models of criminal trial – however, in two different shapes and with different types of limitations.</p> Hanna Kuczyńska Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 47 77 10.12775/CLR.2021.002 Some Brief Remarks on the Controversial Relationship Between the Judiciary and Politics in Italy <p>The relationship between the judiciary and the political sphere and the dilemma over whether the judiciary has been a victim of politics, or whether politics has been a victim of the judiciary, have been hot topics for some time in Italy. Since a major scandal engulfed the High Council of the Judiciary, the courts have become the principal focus of the reform efforts of the Draghi Government, which took office in February 2021. The contribution briefly illustrates the figure of the Judicial Power within the Division of Powers and the evolution of the judge’s role within this system. Following a brief premise on the evolution of the role of judges during the last two centuries, the principle of the independence of the judiciary in the Italian Constitution will be outlined before final comments on the controversial relationship between the judiciary and politics.</p> Gabriella Mangione Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 79 104 10.12775/CLR.2021.003 Herein Lies the Rub with Comparative Law Research – From an American Perspective <p>The legal community in the United States has good reasons to be interested in the laws of other nations, but there are real barriers to finding and understanding comparative law. This article describes important differences in how law is envisioned in the United States: the pre-eminence of the adopted Constitution as the ultimate statement of rights and government powers, the interpretive role of judges in a unique federalist system, and the importance of case law in learning and talking about the law. This article also describes overarching obstacles that interfere with finding and reading comparative law: the influence of language and culture on formulating and carrying out research enquiries, and the increasingly bewildering array of interferences in accessing law authority and scholarship even when its existence is known.</p> Emily Roscoe Charles Szypszak Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 105 134 10.12775/CLR.2021.004 Criminal Disinformation in Relation to the Freedom of Expression in Indonesia: A Critical Study <p>In a democratic society, the criminalisation of spreading disinformation is deemed a violation of freedom of expression. The development of information and communication technology, specifically the Internet, has changed people's perceptions of both disinformation and freedom of expression. This research critically analyses criminal law intervention against disinformation and freedom of expression in Indonesia. The research is document research using a comparative approach that analyses laws and regulations on disinformation in Indonesia, Germany, and Singapore. For Indonesian law, this research focuses on the provision of Articles 14 and 15 of Law No. 1/1946, which criminalises disinformation in the public sphere. This research shows that Indonesia needs a new approach regarding the criminal prohibition of spreading disinformation. It recommends that criminal law intervention is limited only to disinformation that is spread on a massive scale and causes significant harm.</p> Vidya Prahassacitta Harkristuti Harkrisnowo Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 135 165 10.12775/CLR.2021.005 Should Corporate Social Responsibility Around The World be Mandatory or Voluntary? <p>Corporate social responsibility (CSR) is an idea that has grown during the last three decades from the voluntary activity of business firms into a debate about whether CSR should be mandated by law because of the increased demand from society. Further, it has been argued that business corporations are owned by their shareholders, and the managers must concentrate on maximizing the wealth of their shareholders and not of the community. To determine how better to apply CSR, this paper begins with looking at the evolution of CSR as a system around the world and then discusses the definition of CSR. In addition, this paper explores the advantages and disadvantages of implementing voluntary CSR and then explores mandatory CSR. Moreover, in this paper, it is found that determining the proper CSR system depends on many factors in each country, such as the social, economic and legal factors that should be examined before applying mandatory or voluntary CSR.</p> Mohammad Alwasmi Ahmad Alderbas Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 169 193 10.12775/CLR.2021.006 Public Law and Administration under Conditions of Hybrid Warfare (The Experience of Ukraine) <p>Events that took place in Ukraine in 2014 transparently demonstrated the maladjustment of the national legal and administrative system to the challenges of hybrid warfare in times of peace. Although it took into account the possibility of direct military threats, it proved not to be ready for withstanding unconventional pressure. This state of affairs significantly weakened the state’s ability to resist and led to a number of dramatic political miscalculations, organizational failures, and acute social problems. The subsequent update of the national public law and administrative system made it possible to improve the situation, but at the same time it revealed a number of pressing issues related to the need to strike a balance between the state’s commitment to ensure the protection of human rights and the necessity to protect national security. In this sense the experience of Ukraine is instructive for many countries of the world, especially for those that are the target of the geopolitical ambitions of the modern Russia. The paper discusses the public law of Ukraine in recent years with the view of highlighting some key problems of legal regulation, as well as identifying some promising ways to develop public administration so that it is capable of effectively coping with the threats of hybrid warfare.</p> Taras Gurzhii Anna Gurzhii Adam Jakuszewicz Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 195 218 10.12775/CLR.2021.007 Regulation of Ordinary Partnership under Ethiopian Law: A Comparative Analysis of Selected Legal Issues with the French Civil Partnership and the Thai Ordinary Partnership Regimes <p>Civil/ordinary partnerships as non-commercial entities play a vital role as an alternative form of doing business in various jurisdictions. Though the issue of where they should be regulated is becoming nonsensical in recent times, it is wise to have a well-structured legal framework which regulates these entities. This article aims to conduct a comparative analysis of the regulation of Ethiopia’s ordinary partnership with the French civil code partnership and the Thai ordinary partnership only on issues of formation, transfer of share, management, liability of partners, dissolution of partnership, distribution of profit and loss, and expulsion of a partner. The comparative analysis shows that in many areas of regulation, the Ethiopian law has more commonalities with that of Thai ordinary partnership and French civil code partnership legal regimes. This article also finds that the Ethiopian law of ordinary partnership ought to be improved as regards the issues of the transfer of shares related to ascendants and descendants, on the distribution of profits and losses, on the role of partners in a dissolution of the partnership, and on the expulsion of a partner.</p> Israel Woldekidan Haileyesus Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 219 233 10.12775/CLR.2021.008 The Application of the Doctrine of Res Judicata in the Context of the African Court on Human and Peoples’ Rights: Analysis of the Court’s Decisions in the Gombert and Dexter Cases <p>As part of an ongoing discussion on the proliferation of the human rights judicial mechanism, this article critically analyses and unpacks the only two examples where the African Court had to decide on the application of the doctrine of res judicata under Article 56(7) of the African Charter. The Court declared both applications inadmissible on the grounds of their previous settlements by the ECOWAS Court of Justice and the United Nations Human Rights Committee. The article demonstrates that while the Court’s decision in the Gombert case appears to be correct in principle, its finding in the Dexter case is highly questionable and unconvincing.</p> Ayyoub Jamali Martin Faix Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 235 253 10.12775/CLR.2021.009 Three Different Legal Attitudes Towards Non-Marital Cohabitation in Europe <p>The rising number of people “just living together”, people who are neither married nor in registered partnerships, clearly demonstrates that non-marital unions can no longer be ignored. To obtain an accurate picture of the situation of non-marital partners it was essential to conduct comparative research of multiple legal orders. This analysis threw a new light (at least from the Polish standpoint) on possible solutions to the problem of the regulation of legal aspects of “living together”. It appears that three different legal attitudes towards non-marital cohabitation may be distinguished in Europe. Firstly, there are legal orders in which by virtue of an explicit reference by the legislator – the regulations on marriage are applied to cohabitation (quasi-marriage cohabitation). Secondly, there also exist countries in which a law was adopted regulating selected aspects of actual cohabitation (implied model of cohabitation). And thirdly, there are legal orders in which any cohabitant-oriented legal regime exists.</p> Ewa Kabza Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 255 274 10.12775/CLR.2021.010 Unloading the Judicial System in Kazakhstan? Alternative Ways of Resolving Individual Labour Disputes <p>The purpose of the study is to develop proposals for the modernization of the judicial form of protection of social and labour rights and interests of the individual. We are testing the hypothesis about the priority and universality of the judicial form of protection of rights in relation to other ways of applying for the restoration of violated labour interests; we assess access to justice as a criterion for the effectiveness of the judicial form of protection. The main method is a desk study of law enforcement practice, reports related to the functioning in Kazakhstan of a judicial form of protection of the social and labour rights of an individual, also the method of analysis of documents and statistical data of courts, a survey of examples of the best foreign practice in the work of specialized courts, and an analysis of international universal standards of access to justice in social and labour disputes.</p> Zhanna Amangeldinovna Khamzina Yermek Buribayev Kuralay Turlykhankyzy Zhanar Moldakhmetova Bakhytkali Koshpenbetov Kalkayeva Nessibeli Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 275 296 10.12775/CLR.2021.011 Indirect Taxation of Events Beyond the Control of the Taxpayer in Crucial Tax and Customs Judgements of the Court of Justice <p>Indirect taxes are shaped in such a way that the final customers bear their economic burden. The scope of taxation is usually delineated to cover all goods (and services) reaching the afore-mentioned final consumers. One may assume that the aim of a lawmaker is that goods (or services) supplied to the consumers should not remain untaxed. However, the intensity of pursuing this aim differs between VAT, excise duties, and customs duties. A scientific question that the rules outlined above bring about is whether it is acceptable – under the general principles of the European Union law perceived through a number of tax (customs) cases – to impose duties on a person or to deprive a taxpayer of rights owing to tax-relevant facts that have been entirely out of the control of this person or this taxpayer (customs debtor). Although the position of the Court of Justice towards this issue is not homogenous, the author of this article claims that situations that are wholly beyond the scope of control of a diligent person should not affect the tax (customs) situation to the detriment of such a person.</p> Krzysztof Lasiński-Sulecki Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 297 312 10.12775/CLR.2021.012 Access to Internet as a Human Right – Justification and Comparative Study <p>This paper advances a human rights perspective to the understanding of internet access by viewing it through a comparative lens with reference to countries in Europe, and the USA, India, and China. The question that is explored is: does internet access warrant recognition as a stand-alone human right, or is it sufficient that access is so bound up with one or more existing rights that formal recognition is unnecessary? Through this paper an effort has been made to analyse whether having a right to internet access as a human right is possible and to argue for the need to recognise such a right given the importance such a right holds, as can be seen especially during the ongoing pandemic when every aspect of life has been shifted to the online mode.</p> Abhinav Mehrotra Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 313 327 10.12775/CLR.2021.013 Tackling Issues of Global Concern by Revisiting the Justifications for State Approaches to Governance <p>Issues of global concern typically arise where there is a limited commitment to accountable governance. This paper argues that there has been an evolution in the state function. This evolution has made it possible to envisage a progression to accountable governance across all states. If attained, this would establish accountable governance as the threshold for state participation in international relations. Failure to meet the threshold would justify intrusion in the governance affairs of states by the international community of states to ensure accountability. Thus, the paper argues that the key to addressing issues of global concern lies in getting states to embrace accountable governance. This would be the first step towards empowering the international community of states to hold accountable those states that adopt governance decisions that perpetuate issues of global concern.</p> Tinashe Madebwe Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 329 351 10.12775/CLR.2021.014 Creditors' and Third Parties' Rights In Rem under European Union Regulations and the UNCITRAL Legislative Guide on Insolvency Law <p>The purpose of this article is to present the legal position of creditors and third parties secured by rights in rem. The analysis takes into consideration the situation when the bankruptcy of a debtor is declared. The purpose of the article is to present the regulation provided in European Union regulations. According to the European Union regulations, the opening of insolvency proceedings does not affect the rights in rem of creditors or third parties {to assets?} belonging to the debtor which are situated within the territory of another Member State at the time of the opening of insolvency proceedings. Therefore the question arises of whether the scale of protection of a secured creditor or of third parties' is too wide in comparison with other creditors. Moreover it is necessary to compare the European Union provisions with regulations of an international character. The provisions of the UNCITRAL Legislative Guide on Insolvency Law constitute a point of reference for a comparative analysis of this issue.</p> Karolina Ochocińska Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 353 366 10.12775/CLR.2021.015 The Availability of Firearms and Levels of Homicideand Suicide Perpetrated with Their Use <p>The paper reviews the literature with a view to answering the question as to whether the easier availability of firearms affects the level of homicides and suicides with their use. The author compared Polish and other similar laws where the access to firearms is strictly regulated, as against systems where the availability of firearms is facilitated, either owing to liberal laws (Colombia, Brazil, Switzerland) or to Constitutional guarantees (USA, Mexico). The comparison revealed a correlation between the availability of firearms and levels of homicide and suicide by firearms.</p> Leszek Stępka Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 367 383 10.12775/CLR.2021.016 Legal Aspects of Geothermal Energy Use in Poland <p>Geothermal energy, understood as the energy stored in the form of heat beneath the earth’s surface, is one of the types of renewable energy sources. In Poland, geothermal energy is the renewable energy source with the highest technical potential, which results from the fact that there are natural sedimentation-structure basins in Poland, filled with hot underground waters of various temperatures. One of the basic factors determining the potential development of undertakings oriented at the use of geothermal energy is the legal environment, understood as a system of legal regulations relating to human activity connected with the use of geothermal energy. The subject of this study is the analysis of legal conditions for ventures geared towards geothermal energy exploration, documentation, and extraction. In Poland there is no uniform legal act regulating these issues in a comprehensive way. The provisions of the Geological and Mining Law and the Water Law, but also the provisions of the Construction Law, Environmental Protection Law, Energy Law, and Renewable Energy Sources Act apply to the analysed projects. The complexity and multilayer character of legal regulations determines the multitude of legal procedures reflecting the regulatory function of the state, realised through the system of concessions, permits, permissions, and approvals. The aim of this study is to present the legal regulations applicable in Poland relating to the use of geothermal energy, and to analyse the level of rationing of activities undertaken in this field.</p> Małgorzata Szalewska Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 385 406 10.12775/CLR.2021.017 Interwar and Contemporary Poland. A Comparison of the Protection of Minority Rights in the Second and in the Third Polish Republics <p class="p1"><span class="s1">This paper is devoted to the problem of the protection of minority rights in Poland in the interwar period in comparison with the contemporary situation. On the one hand, before the Second World War Poland </span><span class="s2">was a very heterogeneous country, inhabited for generations by multiple and internally diverse religious, national, ethnic, or linguistic minorities. On the other hand, contemporary Poland is a country in which national and ethnic minorities constitute only a few percent of the population, and the proportion of such minorities in Poland compared to other European countries is one of the lowest in Europe.</span> <span class="s2">The duties of the Polish authorities towards national minorities were determined by internal legal acts: decrees of the Chief of State, and above all the March Constitution and national law, as well as many international legal acts, for instance such as the so-called Little Treaty of Versailles.</span> <span class="s2">The second part of the paper discusses the contemporary situation of the minorities in Poland, for instance the situation of the national and ethnic minorities and the situation of sexual minorities.</span></p> Katarzyna Witkowska-Chrzczonowicz Copyright (c) 2021 Katarzyna Witkowska-Chrzczonowicz 2021-12-22 2021-12-22 27 407 422 10.12775/CLR.2021.018 On Taking DNA Reference Samples - Comment to the Judgment of the European Court of Human Rights of 14 April 2020 in the Case of Dragan Petrović v. Serbia, Application no. 75229/10 <p>The comment deals with the evaluation of (not only) Serbian law concerning taking body samples for DNA examinations. The authors share the arguments of the dissenting opinion from the judgment in question that the phrase “other medical procedures” was at that stage sufficient for such a procedure. A comparative analysis of the Polish law is also conducted.</p> Violetta Kwiatkowska-Wójcikiewicz Józef Wójcikiewicz Copyright (c) 2021 Comparative Law Review 2021-12-22 2021-12-22 27 423 429 10.12775/CLR.2021.019 List of Reviewers julia Kapelańska-Pręgowska Copyright (c) 2021 julia Kapelańska-Pręgowska 2021-12-22 2021-12-22 27 Title page and table of contents Anna Moszyńska Copyright (c) 2021 Anna Moszyńska 2021-12-22 2021-12-22 27 Editorial Anna Moszyńska Copyright (c) 2021 Anna Moszyńska 2021-12-22 2021-12-22 27 5 6