Hungarian Journal of Legal Studies最新文献

{"title":"Decisions with general scope in the light of special sectoral regulations in the Hungarian administrative system","authors":"János Kálmán","doi":"10.1556/2052.2023.00439","DOIUrl":"https://doi.org/10.1556/2052.2023.00439","url":null,"abstract":"In the 21st century, the two administrative instruments that have the greatest impact on the legal situation of members of society, administrative enforcement and administrative legislation, have been and are being confronted with a number of social challenges (global economic crisis, refugee crisis, epidemics and pandemics). The challenges of the 21st century require public intervention to provide a rapid, accurate and effective response to the problems that arise, while ensuring legality and the protection of the rights of the citizens. The first responses to social problems are provided by sectoral regulations, which may conflict with general rules of administrative procedure. The study analyses administrative decisions of general scope in the light of special sectoral regulation and review the points of conflict with general rules of administrative procedure. The study concludes with a proposal.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139255761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The voice of the child and the implementation of the child's right to be heard in parental responsibility matters and cases","authors":"Orsolya Szeibert","doi":"10.1556/2052.2023.00438","DOIUrl":"https://doi.org/10.1556/2052.2023.00438","url":null,"abstract":"The article deals with a very up-to-date issue, the ‘voice of the child’, i.e. the implementation of the child's right to be heard in parental responsibility matters and cases. My aim is to find an answer to the question of how the Hungarian codification, judiciary and academic legal literature have changed over the last decade and how they have adapted to the modern child-focused standards. The significance of the topic emerges from the fact that both the exercise and the rendering of parental responsibilities is somehow problematic in many families and this difficulty is burdened by the requirements of child-friendly justice. The issues dealt with in this paper concern the significance of the child's right to be heard, the necessity of the child's hearing, the connection between the child's protection and child's hearing, the difficulty of determination whether the child is capable of forming his or her own views, the direct and indirect hearing of the child and the difference between the child's hearing and the child's voice.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139255016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional interpretation and populism: A comparison between Italy and Hungary","authors":"Simone Gianello, Paolo Zicchittu","doi":"10.1556/2052.2023.00458","DOIUrl":"https://doi.org/10.1556/2052.2023.00458","url":null,"abstract":"This essay aims to compare the constitutional interpretation techniques used by the Italian Constitutional Court and the Hungarian one, facing the advancing of populist claims in Europe. After introducing the differences between the exercise of sovereignty in constitutional legal systems towards populistic regimes, the authors analyse some paradigmatic cases in which Constitutional Courts reacted to populistic waves. Through comparing the different legal instruments adopted to interpret the Constitution, this paper will therefore test the Italian and Hungarian legal system's concrete democratic evolution.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139255035","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Values on the horizon: Did the loss of innocence of conflict of laws change the relationship to the foreign?","authors":"Patrik Provazník","doi":"10.1556/2052.2023.00453","DOIUrl":"https://doi.org/10.1556/2052.2023.00453","url":null,"abstract":"While the complexity of the methodological and legislative-technical apparatus of conflict of laws has, in the eyes of its critics, created an aura of impermeability, they are, in fact, instruments through which a relationship to the foreign is conveyed and articulated. However, conflict of laws is not an immutable system of rules but rather a technique that undergoes varying degrees of development depending on the changing premises on which it is built. These are notably defined by different approaches to the values that frame the conflicts resolution. Depending on these values, the available instruments of conflict of laws are used to achieve different objectives. This results not only in a confluence of different methods but also in changes within a particular method. Against the backdrop of the value transformations of conflict of laws, this paper seeks to demonstrate that the abandonment of methodological purism of conflict of laws necessarily entails the abandonment of relational purism towards the foreign. By contrast, insofar as transformations within the dominant multilateral method are concerned, it is argued that the changes in value orientation have not led to a fundamental change in the nature of the relationship to the foreign.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139255923","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Case-based reasoning as a measure of constitutional adjudication","authors":"Éva Boda-Balogh","doi":"10.1556/2052.2023.00476","DOIUrl":"https://doi.org/10.1556/2052.2023.00476","url":null,"abstract":"Abstract Case-based reasoning has high significance in constitutional adjudication. The constitutional courts of the Kelsenian model also follow their own previous decisions to develop their own case law, even if those decisions do not bind them formally. In the course of constitutional interpretation, to build coherent and predictable case law and determine constitutional principles and standards in a consistent way are also reasonable expectations of constitutional adjudication deriving from the rule of law. The paper analyses the case law of the Hungarian Constitutional Court from this perspective, regarding the criticism of public figures in defamation cases. It takes case-based reasoning as a measure of the case law of the HCC, reveals the tendencies and highlights the main problems associated with it.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135352602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The winding access to legal status for unaccompanied migrant minors in Spain","authors":"Patrizia Rinaldi","doi":"10.1556/2052.2023.00426","DOIUrl":"https://doi.org/10.1556/2052.2023.00426","url":null,"abstract":"Abstract This article analyses an inclusive and participatory approach to regularising ‘Non-Asylum Seeking Unaccompanied Migrant Minors’ in Spain. The terminology is multiple; in this paper, the choice has fallen on Unaccompanied Migrant Minors with the acronym UMMs instead of UAMs, to be consistent with the doctoral thesis already defended in 2021. The term UASC, specific to unaccompanied migrant minors seeking asylum, was excluded. To fully assess the process, it is necessary to account for the following factors shaping their administrative situation: (a) how they reach adulthood, (b) whether they are in regular or irregular situations, and (c) the waiting time for obtaining regularity status and citizenship. This article reviews the gap between perspectives of legal protection, good intentions, and political restrictions. The study has been carried out considering the results of qualitative research obtained through interviews with minors, staff members at reception centres, guardians, and immigration authorities. Particular attention is devoted to the limited number of resident permits granted to the UMMs. The methodology was enriched by desk research; most sources cited in the article are legal instruments and academic papers. The different dimensions of regularization are analysed by paying attention to (i) residence permits and political rights; (ii) the role of guardianship in administrative regularization; and (iii) vulnerability related to the legal status of unaccompanied migrant minors. A comprehensive assessment is carried out based on children's rights and the social, institutional, and organizational contexts, as well as considering the policies which condition the protection milieu concerning migrant children and the practices at both general and operative levels.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135351685","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The right to respect for private and family life of children born through international surrogacy in the case law of the European court of human rights","authors":"Márk Pap","doi":"10.1556/2052.2023.00421","DOIUrl":"https://doi.org/10.1556/2052.2023.00421","url":null,"abstract":"Abstract The ECHR is a general human rights convention, but it contains some provisions that have gained particular importance in the case law of the ECtHR regarding the human rights of children. Such a provision is, among others, Article 8 on the right to respect for private and family life, the interpretation of which has raised many questions in cases related to children born through international surrogacy. These questions have arisen in relation to the intended parents' standing to bring an application before the Court on behalf of the child, the criteria for ascertaining the interference of the respondent state with the child's right to respect for his private and family life, as well as the specific content of the requirements that must be met for the interference to be justified. By analysing these questions and the answers the Court gave to them, this article attempts to give an overview of the state's obligations to ensure the right of a child born through international surrogacy to respect for his private and family life in connection with the recognition of the parent-child relationship between the intended parents and the child.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135347712","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The parliamentary margin of movement for strengthening the role of historical dimensions in interpretation and law-making: The case of Hungary","authors":"Anna Gera, B. Szentgáli-Tóth","doi":"10.1556/2052.2023.00408","DOIUrl":"https://doi.org/10.1556/2052.2023.00408","url":null,"abstract":"When the historical dimension of the Hungarian public law is assessed, usually the analysis of the constitutional court case law is highlighted; however the Parliament might have an equally important weight. Article R) of the Fundamental Law provides two crucial references to the historical constitution: the clause of paragraph (3) which mentions the achievements of the historical constitution, and paragraph (4) which imposes the duty on all bodies of the Hungarian state to protect the constitutional identity of Hungary laid down in 22/2016. (XII. 5.) ruling of the Hungarian Constitutional Court. These two provisions are also binding for the Parliament to take into account the historical development of the current legal system during all of its legislative activities. In our view, this duty is more extensive than the examination of certain historical laws; the whole historical development of a legal field should be considered as regard the content of laws; the circumstances of their enactment, their special meaning during each historical period. In our contribution, those already known examples are enumerated, when the Hungarian Parliament relied explicitly on the achievements of the historical constitution, and how broad is the parliamentary space of manoeuvre in this regard. Our focus is to identify such alternative legal instruments, which could strengthen the role of historical arguments in the parliamentary practice. Certain elements of the legislative process will be considered (committee meetings; impact assessment of laws, the potential second chamber), while certain components of the laws will be also assessed (preambles, reasonings of laws, parliamentary resolutions).","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41882522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A critical evaluation of the work of the UN Human Rights Council, or taking stock of fifteen years without illusions","authors":"István Lakatos","doi":"10.1556/2052.2023.00432","DOIUrl":"https://doi.org/10.1556/2052.2023.00432","url":null,"abstract":"In the context of this article, the author takes stock of the legacy of the UN Commission on Human Rights (CHR) and the changes that its replacement by the Human Rights Council (HRC) in 2006 have led to. A political body such as the CHR/HRC cannot do more than the member states allow it to do, and cannot be blamed for being driven by political motivations. Against this background it is not surprising that the new institutional framework did not solve the political problems associated with the CHR, since the new body was almost identical in size to its predecessor, involved the same actors, and operated under similar political conditions. The establishment of the Universal Periodic Review (UPR) mechanism, however, introduced a new approach to the UN system by ensuring a cooperative review of the human rights situation of all UN member states, thus awarding an increasingly important role to the technical assistance pillar in implementing its recommendations. Notwithstanding the above, the UPR process has not rendered the adoption of country-specific resolutions unnecessary, but their use should be more strategic, ensuring better coordination within the UN system as a whole, and increasing the importance of the regional dimension in the work of the world organisation. It is not politically realistic to expect all HRC member states to have excellent, flawless human rights records, but the nomination of governments committed to and supportive of human rights should be encouraged. It is important to underline that over the past years, WEOG, EEG, and GRULAC countries, together with some pro-human-rights countries from Asia and Africa, have built successful coalitions within the HRC concerning a number of sensitive issues. The process of democratisation around the world, despite the decline in recent years, will further reinforce these positive trends, improving the composition of the HRC as more and more democratic countries hopefully seek to join the body.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43867801","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The impact of historical traditions on the regulation and practice of the preferential naturalization of Hungarians living outside the borders","authors":"Mónika Ganczer","doi":"10.1556/2052.2023.00412","DOIUrl":"https://doi.org/10.1556/2052.2023.00412","url":null,"abstract":"Abstract The study presents the impact of the historical origin of the making and application of law through a specific example. The regulation of nationality, a pivotal field of constitutional law, is considered a sovereign right of the Hungarian state which is exercised in line with Article G) of the Fundamental Law and Act No. LV of 1993 on Hungarian Citizenship. Hungarian naturalization practice, however, significantly changed in the wake of the amendment of the respective act: Hungarians living outside the borders have been entitled to preferential naturalization since 2011. This study aims to prove that this legislative action, which remarkably followed the designation of the day of the conclusion of the Trianon Peace Treaty as the Day of National Unity the previous year, was obviously influenced by historical considerations. The primary objective of preferential naturalization was to grant Hungarian nationality to persons of Hungarian origin whose ancestors had lost their Hungarian nationality in the aftermath of historical events involving the transfer of territories to neighbouring states. The study's point of departure is the Trianon Peace Treaty, the first major instrument to have a profound effect on the nationality of millions of Hungarians. The study explores the peculiar interpretation and application of treaty provisions relating to territorial changes and reveals the flaws in legal regulation which further contributed to the formation of a large community of Hungarians living outside the borders. Having surveyed the historical background, the analysis proceeds to examine the impact of historical traditions on the underlying motives and current domestic regulation of preferential naturalization. Evidence includes the broad scope of eligible persons, the wide range of documents accepted to prove descent, the verification of the required command of language, and the practical implementation of the procedure of naturalization. Research findings convincingly display the far-reaching effects of historical traditions on the regulation and practice of preferential naturalization in Hungary.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135336432","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}