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The Reluctant Acceptance of Same-Sex Unions and Parents in Israel

Zvi Triger (download)

Israeli marriage law is religious in nature, and makes no provision for civil marriages. It is thus remarkable that same-sex unions have been recognized, albeit to a limited extent, by Israeli courts, and that same-sex marriages performed abroad have been registered and recognized by Israeli authorities. This article explores the growing acceptance of both same-sex partners and parents in a country where personal law is based on religion. I argue that there are two main reasons for this acquiescence: (1) Israeli-Jewish culture places great emphasis on the family and on procreation, and has been characterized in the literature as pronatalist. Therefore, LGBTQ people who choose to live in long-term, monogamous relationships and have children are accepted, as they can be seen as living within Jewish culture and its familial orientation; (2) The so-called demographic problem, which is used to encourage Israeli Jews to have more children in order to continue to outnumber Israeli Palestinians, allows Jewish LGBTQ individuals to join this national effort, thus gaining legitimacy for their families. As the article shows, none of the rights that same-sex partners and parents have under Israeli law were voluntarily awarded by the legislature. All of these entitlements were recognized by Israeli courts only after lengthy and costly litigation, oftentimes against fierce resistance on the part of Israel’s Attorney General. Hence, while Jewish Israeli same-sex partners enjoy a relatively high degree of sociolegal recognition, it should nevertheless be considered a “reluctant acceptance.”

Debates on Same-Sex Parentage: Main Arguments in France

Anne-Marie Leroyer (download)

The debates on same-sex marriage have been heated in France. It is particularly interesting to note that arguments mobilizes were not legal. The question of marriage and adoption was not posed empirically, but ideologically. Many arguments from anthropology, religion and political philosophy were used to argue against the reform. The question that can be asked is why these arguments have had so such space in France?

Medically Assisted Procreation for Women Couples in French Law: Review of New Legislation

Maïté Saulier (download)

French law regulates medically assisted procreation (AMP) within the framework of a more general law, known as the “bioethics law”. The first bioethics laws date from 1994. This law has the particularity of being revisable. In July 2019, a bill was tabled to carry out the third revision. The health crisis, a busy legislative schedule but also political opposition led to a considerable delay in the adoption of this reform, which was finally adopted definitively on 29 June 2021.

The first draft opened the benefit of medically assisted procreation to couples and single women. This proposal was adopted by both parliamentary chambers (National Assembly and Senate) during the preparatory work. But in February 2021, against all expectations, the Senate had finally refused this opening, in a climate of total confusion. It was to be expected that in its final readingthe National Assembly would reverse its position by allowing unmarried women and couples to have recourse to medically assisted reproduction.

A “moment in history”, a “text which, above all else, places the will of men above the weight of destiny”, these are the terms used by the bearers of this project on 29 June 2021. This is obviously an incredible step forward. However, the modalities chosen to allow the establishment of filiation with regard to the female couple in the event of recourse to a sperm donor reveal valuable lessons. These modalities shows that the legislator is incapable of going beyond a traditional model of filiation, based on carnal procreation, to grasp the specifics of AMP. This article proposes, after a historical overview, to analyse the choices that the legislature is preparing to make in 2021 and the paradoxes that lie behind them.

Governing Through Corruption: The Symbolism of the Death Penalty for Chinese Corrupt Officials

Pu-Ma Shen (download)

In a 2011 debate, the Chinese government decided to maintain the death penalty for corruption while eliminating it for other more serious crimes. While the motivation behind use of the death penalty in regard to corruption has not been fully explored, it is crucial to explore the messages of the Chinese government. Although executions are expressed in legal terms following the rule of law, the death penalty itself is understood by the public through the state-controlled media, and it is noteworthy how the Chinese state media interprets legal terms in plain language to construct the meaning of the death penalty. In other words, how does fear of crime exist if China is “governing through corruption”? A content analysis of 328 corruption media reports shows that the revival of traditional values under State Confucianism reveals the rationale for condemning corrupt officials to death. Parallels between media reports and legal elements suggest that the immorality of these officials, as portrayed by the media, forms the foundation of legal arguments for the death penalty, therefore representing a step from immorality to illegality. This paper suggests that the cultural image of the new capitalist class reflects the ways in which old communist values provided a basis for denouncing white-collar criminals when capitalism entered China in 1978; further, it suggests that the government establishes a culture of control by utilizing symbolic rhetoric in an attempt to tackle corruption by governing through corruption.

Citizenship on Paper. On the Risk of Statelessness of Polish Children Raised in Same-Sex Unions Abroad

Dorota Pudzianowska & Piotr Korzec (download)

The paper discusses a new cause of statelessness of children that is currently emerging under Polish law. Statelessness in children can arise in situations where their foreign birth certificate is not tolerated by the legal system of ex-lege nationality iure sanguinis on the grounds of disclosing persons of same-sex as parents and the place of birth does not confer nationality iure soli. This cause of statelessness can be characterized as technical because it arises where citizenship law does not regulate proof of citizenship and mediates the acquisition of identity and travel documents through other procedures. The children of same-sex couples are thus citizens de iure--purely on paper--but not in any meaningful practical sense, effectively becoming stateless because they do not receive the treatment of nationals by the state of which they are citizens in this manner. This sort of statelessness can be just a temporary hurdle, but it may well be permanent or at least indefinite. The matter has been the subject of strategic litigation in Poland.

Accordingly, this paper discusses the administrative proceedings before consular sections and vital-records registers for identity and travel documents. It also provides an overview of the diverging decisions of administrative courts (following judicial review) concerning the transcription of birth certificates disclosing persons of the same sex as parents. Lastly, it deals with the recent resolution of an extended panel of the Supreme Administrative Court effectively forestalling all such litigation as irrelevant. The SAC held that access to formal citizenship (ID, passport, PESEL number) may be granted on the basis of such a foreign birth certificate; this, however, has led to its own wave of problems with administrative authorities. The paper concludes by highlighting the developments in the Council of Europe and European Union’s law as a potential cure against the palpable malaise of administrative authorities in respect to ‘offending’ birth certificates.

Same-Gender Parenting and the Best Interests of the Child: The European Perspective with the Example of Austria

Helmut Graupner (download)

Austria, like Taiwan, but unlike all the other European countries, opened up marriage to same-gender couples by way of a Constitutional Court‘s judgment. Different from Taiwan, Austria realized equality also in parenting (second-parent adoption, joint adoption, and automatic co-parenthood) with the Constitutional Court’s core argument of the best interests of each individual child. This article presents how Austria, once the first country in the world to repeal the death penalty for homosexual contact and later on one of the last to remove its criminal prosecution, paved the way to full family law equality for same-gender and opposite-gender couples, and elaborates how children’s rights turned out to be crucial in this process.

Transitional Equality in Transnational Context 

 Suzanne A. Kim (download)

The legalization of same-sex marriage in Taiwan in the past few years and emerging legal recognition for same-sex couples in Japan mark important expansions of family recognition in Asia. These developments provide an opportunity to consider the gap between formal and substantive equality in the rights of diverse families in Taiwan, Japan, and other jurisdictions. This essay examines these recent changes in family recognition in Taiwan and Japan alongside experiences of U.S. couples to generate new areas of inquiry into developing equality with full attention to a broad range of socio-legal experience.

This essay considers a framework of “transitional equality” I have discussed in the U.S. context to identify the process of families transitioning into new formal legal status categories. As I have described elsewhere, when a person or class of persons obtains a new status or gains previously denied rights, “the path itself from one legal status to another becomes critically important and may itself be impacted by race, gender, age, and other factors. The process of transitioning to a new status can be complex and burdensome in unexpected ways, and lack of attention to that process can impair persons’ inhabitation of their newly acquired legal rights.” This transitional space is one worthy of socio-legal attention in the effort to build fuller equality for diverse families. Taiwan and Japan introduce further opportunities to examine the role of marriage recognition in reflecting and constructing broader norms concerning national identity, race, ethnicity, gender, age, economic status, access to justice, and in the cultural contingency of societal inclusion and legal subjectivity.

The Status of Marriage 

Mary Anne Case (download)

Focusing chiefly on the efficiency advantages of marriage as a legal status that should be open to couples regardless of sex, rather than on the more familiar constitutional and human rights arguments for same-sex marriage recognition, this article applies the tools of law and economics to an analysis of the legal institution of marriage as it has developed over time and in the recent past in a variety of legal systems, including chiefly the United States and Taiwan, but also, inter alia, Hong Kong, Japan, France, and the Netherlands. While it urges an emphasis on the practical, the article acknowledges and discusses the importance symbolic aspects have played in the evolution of relationship recognition in the last several decades. It builds on the author’s earlier work analogizing the development of the law of marriage to that of business corporations and examining the ways in which feminist claims to liberty and equality in marriage have brought about legal change.

The Prevalence and Psycho-Social Risk Factors of Indiscriminate Murder: No Man Is an Island?

 Kevin Chien Chang Wu & Mau Sheng Lee & Yi Fang Lu & Yuan Zhen Yeh & Jun Kai Wang & Su Syan Jou (download)

The aims of this study are to clarify the definitional issues pertaining to indiscriminate murder and to analyze prevalence and risk factors of such crime. A specially designed questionnaire was distributed to a control group (n=98) who were over age 20 without any court conviction and recruited from internet advertisement and four offender groups (n=209) from nationwide prisons. The valid response rate was 91% for the offender group and 98% for the control group. The offender group was comprised of indiscriminate (5%), stranger (28%), domestic (30%) and acquaintance (37%) murderers. We estimated that the prevalence rate of indiscriminate murder is about 0.04 per100,000 residents in Taiwan. Other main findings are, first, compared with the control group, indiscriminate murderers had much lower empathy, failed to form intimate relationships and with high school dropout rates, there were no significant differences among the five groups on self-esteem, violent attitudes, cynicism, high risk family, psychiatry illness history, anger, depression, substance abuse, unemployment, juvenile/adult prior convictions. Second, among the four murderer subgroups there are no statistically significant differences in the rates of psychological factors such as self-esteem, violent attitudes, cynicism, high risk family factor and psychiatric illness history. However, the indiscriminate murder subgroup has significantly higher antisocial tendency than domestic murder subgroup, and higher loneliness and social alienation than stranger murder subgroup. Our analysis suggests that unlike mass media stereotypes, there is no significant association between indiscriminate murder and mental illness, substance use and prior conviction. The indiscriminate murder subgroup lacked capabilities to build up proper intimate, school and social relationships, and have been isolated psychologically and somehow turned their backs on the world. Nonetheless, to argue it the other way around, perhaps the situation is created by society’s making them socially invisible by leaving them out of social connections. These people finally link with society again only through indiscriminate murder. Limitations of this paper are described and suggestions for further research in terms of developing an evidence-based understanding of indiscriminate murder.

憲政結構的流變與重整＼胡佛 1-32

終身職法官可否享受退休待遇之問題研究──從比較西德、美國及日本有關法官退休之法規檢討現行法官退休制度＼廖義男 33-68

論稅捐之滯納金＼黃茂榮 69-118

現代議會制度之生理與病理底比較憲法研究（下）＼李鴻禧 119-178

從美國著作權法上“製造條款”談國際保護主義及我國的相關規定＼賀德芬 179-202

從親子關係論及弱者保護──以中、韓、日三國家族法會議為中心＼陳棋炎 203-238

論國際貨品買賣契約之締結＼王仁宏 239-256

附合運送單據實務與責任條款之研究＼柯澤東 257-314

On “Aufbau der Verbrechenslehre” – Its Formation and Development／Chung-Mo Han 1-20

The Perspective of the ROC-EEC Trade Relationship and Its Legal Aspects／Jeng-Huong Wang 21-42

Das Recht der Gemeinnützigen Unternehmen／Yih-Nan Liaw 43-96

A Comparative Constitutional Study on the Physiology and Pathlogy of Modern Congressional System – Its Legislative Process Approach／Hong-Hsi Lee 97-124

Der Begriff des Rechtsgutes (I) ／Tze-Lung Chen 125-140

Some Special Approaches for Reaching Equitable Solutions of Ocean Boundary Disputes／Kuen-Chen Fu 141-152

A Study of Judicial Review in the United States／Shoy-Fang Chen 153-174

Überbau und Herausgabeanspruch des Eigentümers／Tze-Chien Wang 175-190

A Study on the Amendment of the Chapters on “General Provision” and “Vessels” of the ROC Maritime Commercial Law／Tse-Tung Ko 191-250

The Legal Effect of the Demise Clause in the Bill of Lading／Tsung-Jung Liu 251-274

The Liability of the Signatory in the Pre-signed Contract／Cheng-Lin Jan 275-292

The Divergence of the Constitutional Structure and Its Reconstruction／Fu Hu 1-32

Richter auf Lebenszeit und Versetzung in den Ruhestand-Rechtsvergleichung zwischen Deutschland, U.S.A. und Japan und ein Reformsvorschlag／Yih-Nan Liaw 33-68

“Addition to Tax” in Case of Failure to Pay Tax／Mao-Jung Hwang 69-118

A Comparative Constitutional Study on the Physiology and Pathlogy of Modern Congressional System – Its Legislative Process Approach – ／Hong-Hsi Lee 119-178

Problems of International Protectionism in Copyright under the US “Manufacturing Clause” and Its Related Regulations in the ROC／De-Fen Ho 179-202

Protection of the Weakd from the Viewpoint of Parent-Child Legal Relationship／Chi-Yen Chen 203-238

Formation of Contracts for International Sale of Goods – With Special Consideration of the 1984 UN Convention and the 1964 Hague Convention – ／Peter Jen-Huong Wang 239-256

A Study on the Multi-modal Transport Document Practice and Liability Clause／Tse-Tung Ko 257-314