An empirical study of actions on custodianship in Hungary
مطالعه تجربی اقدامات مربوط به حضانت در مجارستان-2020
Our research on the operation of legal institutions related to the restriction of the legal capacity of adults (custodianship and supported decision-making) started in December 2019. Our present analysis of case law on custodianship and supported decision-making is based on cases published in the Collection of Court Decisions. The adoption of the new Hungarian Civil Code has clearly had a significant effect on the court decisions, as it made it compulsory to designate the categories of decisions to which a partial restriction on legal capacity ap- plies. However, the change in regulation also implies a change of attitude that is considerably less apparent in the cases. In the context of international human rights expectations, any limitation of legal capacity should be applied as circumspectly as possible, and only in the most necessary cases. In the examined cases, the efforts of the Curia (the Hungarian Supreme Court) to reinforce this change of attitude in court practice may be detected but they are not extensive. At the same time, the spirit of the UN Convention on the Rights of Persons with Disabilities (CRPD) is not clearly reflected in court practice, and supported decision-making is not seen by courts as a real alternative to custodianship. Regarding the processes of the analyzed disputes, we found that the procedures in the published cases are relatively short, the higher courts in most cases upholding the decision of the lower courts, and that there is no legal or critical evaluation of any expert opinion. In a number of cases, the dominant function of custodianship is not the protection but the restriction of the rights of the given person and - against its declared goal - it serves to protect the interest of others. For example, property issues and the pro-tection of the financial interests of family members are given priority in the published cases. In addition, there were several cases in which the authorities themselves sought to be ‘protected’ by limiting the capacity of the person to initiate official and judicial proceedings.
Keywords: Surrogate decision making | Custodianship | Guardianship | Supported decision making | Case law analysis | Hungary
The legal construction of personal information protection and privacy under the Chinese Civil Code
ساخت قانونی حفاظت از اطلاعات شخصی و حریم خصوصی تحت قانون مدنی چین-2020
Personal information protection and privacy interact in diverse ways, especially in the contemporary information age. Although books and articles have focused on this topic, the new tendencies of worldwide legislation and judicial practice bring challenges, as the legal construction of personal information protection and privacy differs from culture to culture and time to time. In 2017, the General Provisions of the Civil Law of the People’s Republic of China (“the General Provisions of the Chinese Civil Code” hereafter)1 (expired) addresses the legal concepts of personal information protection and the right to privacy simultaneously, to which this article refers as the dual model, differing from the one-dimensional mode of privacy protection before. Subsequently, the “The Right to Privacy and the Protection of Personal Information,” a chapter of the newly issued Civil Code of the People’s Republic of China’s (“the Chinese Civil Code” hereafter), ascertains the dual model and details related provisions. It has been dubbed a landmark ruling of China’s personal information protection, greatly boosting the modernization of China’s civil system. Despite the many articles that discuss approaches to China’s civil protections, little attention has been given to the fundamental question concerning what exactly encompasses the personal information protection and privacy to which these laws refer. Based on the regulations and applicability of the General Provisions of the Chinese Civil Code and the Chinese Civil Code, this paper explores the legal construction of personal information protection and privacy under Chinese legal orders, including the differences, similarities, and interplay between the two rights. By distinguishing the legal value, contents and remedial approaches, this paper concludes that the two rights are distinct but overlap. On one side, personal information protection is elevated to the status of a separate civil right in the legal context of China, rather than part of privacy. On the other side, tailored regulations should be establish according to the criteria of the nature of information, the extent of information processing, and the elements of damage when confronted with overlaps in the two rights in judicial practice. Thus, this paper provides a perspective from which to clarify the approaches to civil protection of personal information and privacy in China and a reference model for enactment of the Chinese Personal Information Protection Law in the future.
Keywords: General Provisions of the Chinese | Civil Code | Chinese Civil Code | Personal Information Protection Privacy