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Posts Tagged ‘Laws’

When the first cars and most important the mass production of cars were invented, no one could even imagine how big this industry will be. It took about hundred years and the cars rapidly multiplied in numbers, becoming an important element of our everyday life. Unfortunately they became not only a useful thing, but also made their own death toll and turned even the smallest road a pretty dangerous place. The worst part of the accidents is definitely driving under the influence of better to say drunk driving, as you will see in this article even the smallest changes in laws on drunk driving can lead to heated debates.

The first rules regulating the driving under the influence were set with the Criminal Law Amendment Act, 1968-69, also known as Bill C-150. The bill made it a “per se” offence to drive with a blood alcohol content (BAC) in excess of milligrams of alcohol in 100 milliliters of blood. Also the Bill stated that a refusal of a police officer’s demand to provide a breath sample is an offence too. Still the drivers managed to handle small over the norm alcohol level with “two-beer” defense. The idea of this defense is following, people accused of driving with more than the norm set by the law (.08 milligrams of alcohol in 100 milliliters of blood) would often argue they had consumed just two beers. Also a popular statement is that the last beer was consumed not long before the breath test, so there is more alcohol in their breath than in their blood.

An often used driver “two-beer” defense has been virtually abolished by a new federal legislation. The new changes, that are part of the federal government’s Tackling Violent Crime Act, kept the right to question the breathalyzer results, but only if the person provides the court with technical evidence proving the equipment was malfunctioning or wasn’t operated properly.

Some lawyers stated that the new legislation is unconstitutional and they will appear before the Superior Court of Justice in Toronto to present their arguments. They try to resolve thing quickly, before the government can get on with the business of prosecuting impaired drivers. The main argument is that with this change divers will be unable to protect themselves if the equipment is really damaged or malfunctioning. Usually drivers don’t know much about breathalyzers and they won’t be able to present valid evidence to the court. Also the information of the breath machines, including maintenance records, specs and the manufacturers’ manual are kept secret and not available to casual driver who is stopped on the street. This turns a useful tool into a one-way guilty ticket, in case of malfunctioning.

On the other side this change is positive for the police officers. Usually they are in a difficult situation. Some of the officers stated that they rely more on temporary license suspensions and not on the charges against drivers slightly over the limit, because the “two-beer” defense can easily beat these charges.

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These regulations comprise Royal Decrees, Ministerial Regulations, Notifications of Directors General, as well as less formal policies and procedures followed by departments within the Thai government. The policies have not passed through the formal legal processes, but as a practical matter can be as significant as an Act of Parliament for one carrying out business in Thailand.

The central Thai law for business and much more is the Thai Civil and Commercial Code (“TCCC”). The TCCC specifies general principles and particular rules for the gamut of civil law issues influencing businesses and individuals. Some of the topics of special attention to businesses comprise company and partnership law, contracts, sales, obligations, unlawful acts (torts, such as liability for negligence or intentional harm), property, mortgage and other forms of loan security, leases and agency. For individuals, the TCCC accounts for marriage, divorce, wills and estate administration, and parental rights and duties.

The TCCC became Thai law in 1925. Notwithstanding regular and sometimes dramatic changes of government and constitutions in Thailand, the TCCC has resisted admirably, delivering a consistent legal framework and structure during otherwise turbulent times. The TCCC contains a few peculiarities that might interest a foreigner as, well, foreign, but for the most part the TCCC specifies legal principles common to most capitalist countries.

The French Civil Code was used as the beginning point for the TCCC, with Japanese, English, German and American legal scholars giving substantial input to the Thai law authorities at the time of drafting. While some contentious issues are surfacing when one considers the details, the basics of Thai law are consistent with the laws of business prevailing from Tokyo to Toledo.

According to the Thai judicial system, a trial court in Thailand is not influenced by prior court rulings when it settles an issue under the TCCC, or any other Thai law. Every case appearing before a Thai trial court is subject to the trial court judge’s personal interpretation of the plain meaning of the applicable laws. Since the Thai laws, by necessity, are often not particular and sometimes not even plain, forecasting results on specific issues is sometimes an uncertain science. Still, the language of the TCCC is usually acceptable enough, and earlier court rulings – especially those of the Thai Supreme Court -act as reasonable guidelines for interpreting less certain provisions.

The TCCC is available across the country in English translation. The standard translation is the one done by late Professor Kamol Sandhikshetrin. While the TCCC is the central Thai law, there are undoubtedly many specific acts of significance when doing business in Thailand. One must have a clear idea about those specific acts before starting to do business in Thailand.

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Dealing breach of contracts

 

Every one of us, in some way or the other enters into a contract with another person for many reasons whether as consumer buying a commodity or as a tenant for some lease of property, or as a businessperson in their frequent business dealings or as a professional in rendering its services. These contractual engagements are customary endeavor for all of us people, whether orally made or in writing.

 

With these, contracts are indeed a valuable tool for us, be for our security and convenience. However, the sad part though, that despite the normal contractual affairs that we engaged into, there are still considerable numbers of people who have no real knowledge about contracts, maybe as a whole, or in some important aspects of their specific contractual arrangements, including contractual breaches and law.

 

These concerns are something to wary about, as it is logically all-important for one to learn the constitutive matters involved in their contractual engagement.

 

Thus, it would be worthwhile to illuminate some aspect of contracts, the respective laws that sanctioned it, its remedies in case of breach and lawsuits.

 

Contracts, discussion:

 

Contracts

 

Contract is a document that is sanctioned by law that contains a legally binding agreement between parties whether to do or not do something. Some source defined contract as something that involves “an exchange of promises between two or more parties to do or refrain from doing an act, which is enforceable in a court of law”.

 

Contract can be entered either orally or written, but for convenience and security of the parties, it would be perfect and preferred that agreements be set out in writing.

 

Contract laws

 

Each state and jurisdictions has its own versions of contract laws enforced within their territory.

 

These state contract laws thus created will usually govern contracts or agreement entered between the parties within their jurisdictional boundaries. But in a more complicated business deal, contract may be governed by one of two types of state law.

 

Breach of contract, explanation

 

Breach of contract is a legal term that pertains to circumstances where one party to a contract fails to perform his undertakings, whether deliberately or carelessly, or due to someone else’s interference, in the legally binding agreement.

 

A party’s failure or breach in fulfilling an end under a contract has legal consequences, which can come in varied forms like lawsuits for contractual breaches, damages, or suits for specific performance or reformation or for rescission.

 

Breach of contract lawsuits

 

In Breach of contract lawsuits, it usually involves the determination of whether a party has incurred damages. The issue of damages is an important element in this kind of litigation, though the damages due to a party when there is a contract breach are relatively different and is dependent to several factors.

 

Not all contract breaches are enforceable through the guise of litigation, as immaterial breaches can be cured by some other medium, outside lawsuits.

 

However, material or substantial breaches on the other hand necessitate lawsuits, as it affects the contract as a whole and that contract damages are apparent- the presence of contract killers.

 

Remedies in Material Contract Breaches

 

When material contract breach is committed by one party, the other party to the agreement is entitled to remedies under the law.

 

The main remedies for a breach of contract are:

 

(1) Damages,

comprising of compensatory, nominal, punitive and exemplary damages

 

(2) Specific performance,

Alternative remedies that can be availed when after assessment by a Contract Lawyer, damages are inadequate as a legal remedy. It is regularly referred to as an order of the court that requires a party to perform a specific act, usually what is stated in a contract.

 

(3) Cancellation

A legal remedy in contractual breaches, which works in voiding a contract relieving all parties on their obligations and undertakings under the agreement. This remedy is available to the non-breaching party.

 

(4) Restitution

The legal remedy of restitution is primarily a gains-based recovery, where the non-breaching party who has parted or given a benefit to the breaching party can ask the court to put them back in their former position prior to the breach.

 

Irrespective of remedies chosen and depending on what remedy is applicable to your case, it is paramount that in taking any of these Breach of Contract remedies, a contract Attorney shall be wage. These matters are all too complex and intricate that requires lawyer’s assistance and help. The Attorney with its experience and qualification can offer valued assistance in the hurdles of your breach of contract predicaments.

Our experienced Los Angeles corporate and business lawyers are familiar with issues such as breach of contract laws. You can log on to our website and avail of our free case analysis.

 

 

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Data Theft in Cyber Space – Issues and Laws

The rapid development of Information technology poses new challenges before the law. These challenges are not confined to any single traditional legal category but arise in, for example, Criminal Law, Intellectual Property Law, Contract and Tort. One such challenge is the growing menace of “Data Theft”. It is the term used when any information in the form of data is illegally copied or taken from a business or other individual without his knowledge or consent.

 

Data as a valuable asset

Data is a valuable asset in this modern era of Information Technology (IT).  Data is an important raw-material for Call Centers and I.T. Companies. Data has also become an important tool and weapon for Corporates to capture larger market shares. Due to the importance of Data in this new era, its security has become a major issue with the I.T. industry.  The piracy of data is a threat, faced by the I.T. players, who spend millions to compile or buy data from the market.  Their profits depend upon the security of their Data. 

 

Issues

The major issue regarding Data Theft is its International character, for example Systems may be accessed in USA, the data manipulated in China and the consequences felt in India. The result of this ability is that different sovereignties, jurisdictions, laws and rules will come into play which again is an issue in itself. Further, collection of evidence in such circumstances become another issue as investigation in three different countries, all of whom may not be in talking terms, is almost impossible and poor technical know-how of our cops adds to the woes. Also, the lack of coordination between different investigating agencies and a not-so-sure extradition process is another head ache. However the biggest of all these issues is the lack of specific laws in the country dealing with this crime, so even if the culprit is caught he can easily get away by picking and choosing any of the of various loopholes in our law.           

 

Does India have sufficient Laws?

The problem of data theft which has emerged as one of the major cyber crimes worldwide has attracted little attention of law makers in India. Unlike U.K which has The Data Protection Act, 1984 there is no specific legislation in India to tackle this problem, though India boasts of its Information Technology Act, 2000 to address the ever growing menace of cyber crimes, including data theft. The truth is that our IT Act, 2000 is not well equipped to tackle such crimes. The various provisions of the IT Act, 2000 which deal with the problem to some extent are briefly discussed below.

Section 43:- This section provides protection against destruction and unauthorized access of the computer system by imposing heavy penalty up to one crore. The unauthorized downloading, extraction and copying of data are also covered under this section. Clause ‘C’ of this section imposes penalty for unauthorized introduction of computer viruses of contaminants. Clause ‘G’ provides penalties for assisting the unauthorized access.

Section 65:- This section provides for computer source code. If anyone knowingly or intentionally conceals, destroys, alters or causes another to do as such shall have to suffer imprisonment of up to 3 years or fine up to 2 lakh rupees. Thus protection has been provided against tampering of computer source documents.

Section 66:- Protection against hacking has been provided under this section. As per this section, hacking is defined as any act with an intention to cause wrongful loss or damage to any person or with the knowledge that wrongful loss or damage will be caused to any person and information residing in a computer resource must be either destroyed, deleted, altered or its value and utility get diminished. This section imposes the penalty of imprisonment of up to three years or fine up to two lakh rupees or both on the hacker.

Section 70:- This section provides protection to the data stored in the protected system. Protected systems are those computers, computer system or computer network to which the appropriate government, by issuing gazette information in the official gazette, declared it as a protected system. Any access or attempt to secure access of that system in contravention of the provision of this section will make the person accessed liable for punishment of imprisonment which may extend to ten years and shall also be liable to fine.

Section 72:- This section provides protection against breach of confidentiality and privacy of the data. As per this, any person upon whom powers have been conferred under IT Act and allied rules to secure access to any electronic record, book, register, correspondence, information document of other material discloses it to any other person, shall be punished with imprisonment which may extend to two years or with fine which may extend to one lakh rupees or both.

 

Can Data Theft be covered under IPC?

Section 378 of the Indian Penal Code, 1860 defines ‘Theft’ as follows:-

Theft – Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.

 Section 22 of I.P.C., 1860 defines “movable property” as follows:-

            “The words “movable property” are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.”

            Since Section 378 I.P.C., only refers to “Movable Property” i.e. Corporeal Property, and Data by itself is intangible, it is not covered under the definition of “Theft”.  However, if Data is stored in a medium (CD, Floppy etc.) and such medium is stolen, it would be covered under the definition of ‘Theft’, since the medium is a movable property.  But, if Data is transmitted electronically, i.e., in intangible form, it would not specifically constitute theft under the IPC. 

 “Data”, in its intangible form, can at best be put at par with electricity.  The question whether electricity could be stolen, arose before the Hon’ble Supreme Court in the case “Avtar Singh vs. State of Punjab” (AIR 1965 SC 666).  Answering the question, the Supreme Court held that electricity is not a movable property, hence, is not covered under the definition of ‘Theft’ under Section 378 IPC.  However, since Section 39 of the Electricity Act extended Section 378 IPC to apply to electricity, so it so became specifically covered within the meaning of “Theft”. It is therefore imperative that a provision like in the Electricity Act be inserted in the IT Act, 2000 to extend the application of section 378 IPC to data theft specifically.  

 

What do we need and why do we need?

It is imperative in today’s world that an emerging IT super power like India has a comprehensive legislation to protect its booming IT and BPO Industries (worst affected industries) against such crimes. Though the IT Act may appear sufficient in this regard but it is not comprehensive enough to tackle the minute technological intricacies involved in such a crime which leaves loopholes in the law and the culprits get away easily. Since this problem is not confined to one nation and has international dimensions, India must look forward to be a signatory to any international convention or treaty in this regard. Also it high time that our national police organizations are trained to deal with such crimes.    

 

Small business owners are often unaware that the employment discrimination laws apply to them. Since such business owners usually do not have the luxury of having large human resource departments or in-house counsel such businesses are often caught in the dark about their obligations under these laws. Any employer that has 15 or more employees must comply with Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”). Employers with 20 or more employees must also comply with the provisions of the Age Discrimination in Employment Act (“ADEA”). What do these laws require? They require that you not discriminate against employees on the basis of the employee’s age, disability, sex, race, color, national origin or religion. In addition to these federal laws, there are also state laws that often apply to employers with very few employees. For example, in New York, the New York State Human Rights Law applies to employers with 4 or more employees and in Connecticut the state Fair Employment Practices Act applies to employers with 3 or more employees. Many times these state employment laws prohibit discrimination against people in protected classes in addition to those protected under federal law. So for instance, in New York, employers are prohibited under state law from discriminating against employees based on their race, color, creed, national origin, military status, sex, age, religion, marital status, alienage or citizenship status, sexual orientation, disability or genetic predisposition or carrier status. In Connecticut, the FEPA prohibits discrimination based upon race, color, religious creed, age, marital status, ancestry, national origin, sex, gender, sexual orientation, pregnancy, breast feeding, genetic information, present or past history of mental disability, mental retardation, learning disability or physical disability (including blindness). Moreover, both state and federal employment discrimination laws prohibit harassment as well as discrimination.

What does all this mean for you as a small or medium employer? You need to ensure that you and your managers are familiar with the employment discrimination laws. This means that all employment decisions from hiring to firing need to be made based on job-related factors having nothing to do with a person’s age, race, sex, pregnancy, sexual orientation, etc. It also means that your managers and employees need to be trained on the employment discrimination laws and preventing sexual and other forms of unlawful harassment. In fact, Connecticut requires employers with 50 or more employees to train all managers within six months of becoming a manager. The training must be legally compliant or it will not satisfy an employer’s obligations under the law. Small businesses should retain outside consultants to provide their Anti-Harassment Training to ensure that such training is properly taught. Our company, HR Learning Center LLC provides employment law, sexual and anit-harassment training and workplace violence prevention training to small and medium employers. Please visit our website at www.hrlearningcenter.com.

This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific questions or issues that may impose additional obligations on you and your company under any applicable local, state or federal laws.

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Family attorney is a term widely used to describe attorneys that deal with the infinite aspects of family law, as well as those of property law, criminal law, probation law, etc.

A Multifaceted Job

The most common cases a family attorney has to deal with are child custody, divorce, abuse and domestic violence. However there are many more instances where even the best family attorney would have to work with kidnapping, parental rights, emancipation and so on. Seeing how a particular case can be related to other legal areas, specialization does not count in this kind of profession as experience does. The more experienced a family divorce attorney is the more chances are that he would have dealt with a case similar to yours.

A family attorney has to be aware of the various family laws in different states as well so as to be able to relate them to property and criminal laws in the same state as his client. These internal rules are certainly not valid just for a family law attorney but also for other lawyers who specialize in different areas. However, the nature of work that a family attorney has to deal with is very sensitive as it concerns emotions and feelings related to the family.

When Children Are Involved

The most fragile section of the society is often involved in family law cases: children. Whether because of divorce or abuse, the protection of minors is the main focus of any family law attorney. Children are always the first ones to be represented and protected, although the case might not be raised by them. It is the duty of the jury and of the best family attorney to always stand by and shelter the innocent section of our society. Therefore, attorneys have to always be sensitive to emotional issues of minors. If traumatized at young age, the child will tend to face problems at all stages of life in future.

As the nature of the work is so various and so demanding, a family attorney will charge differently for each case. The fees depend on the hourly basis as well on the outcome of the case in court. The hourly rates depend on the area or the state, on the experience and popularity of the attorney and on the nature of the case. Retainer charges asked by attorneys are usually paid by the spouse with a higher income, if the second spouse is in financial difficulty. The court usually gives an order called ‘Pedente lite’ so that payment by the spouse with a higher income becomes compulsory.

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Success is a Mindset

Success is a mindset. What constitutes success for one person may not be for another. Success also spends broad spectrums encompassing societies as well as world events. So success is not simply an individual experience, it is an human emotion and a mechanical result at the same time.

For many, success is a driving force which propels them toward satisfaction or completion. There can be no satisfaction without completion because the desired result is satisfaction.

Satisfaction is an Internal Response

For the most part, satisfaction is an internal response. It lets you know when an action is approved. Success is approval or acceptance of a completed action. This says, success cannot be possible without some form of action. If action is the force of success then stimulus is its fuel. Stimulus occurs from passion, desire, or need, which stems from fear, love, necessity, or craving. All of these are factors which accommodate success.

The Eternal Quest For Success

Most articles on success deal with how to make a plan, the importance of commitment or making choices. Literally tens of thousands of articles, books, courses, seminars, retreats just to name a few, have picked success apart piece by peace. Success has been analyzed and studied for years with mostly the same results. Class room study does not make a successful person. It may be a contributor but not an end result

Here are seven more laws that drive success.

1. The Law of Negotiation – Agreement

In some instance, negotiation is necessary to gain success. When working with someone who holds power, you may have to negotiate for position. A good negotiator can initiate terms, bargain for arrangement, and satisfy agreement. The need to be a good negotiator is imperative in your quest for success.

2. The Law of obedience – Faithfulness

Lack of obedience is the number one killer of success. When a person can’t be true to his/her promise, the result is failure. Obedience is being true to the cause. When a statement is made, obedience carries it through.

3. The Law of perception – Realization

Without perception there is no realization. Perception is the understanding or view of a particular account. Your perception of the sought after goal draws a picture of desire for it. If you perceive it to be undesirable, there is no reasoning for acquiring If you perceive it to be worthwhile or worthy, then desire becomes action which becomes success.

4. The law of Direction

Another common reason for failure is loss of direction or no direction in the first place. You would not fire off in a rocket to the moon without first mapping the course and you can’t obtain complete success without first mapping how to get there. First you have to define the goal, set a course and follow the directions on how to get there. A goal becomes easy if you simply lay out its’ directions. Making a map helps but isn’t worth anything if you don’t follow directions. Like putting together a toy for your child, if you don’t follow the manufacture’s directions it will take longer to put it together or possibly you won’t assemble it at all. Be prepared to follow directions.

5. The Law of Planning

Planning for success gets you prepared for the journey. Your plan is your signature of acceptance for the realization of the goal. Success is a result of planning. I know, it’s been said a million times before, but that’s because it is true. A truth is always a truth and worthy of repeating. Take the time to devise a plan for success. Plan for exiting if things go wrong. Plan every step in the journey.

6. The Law of preparedness

Being prepared armors you with a sword of defense. Preparedness is protection against any foreseeable and unforeseeable events that might take place on your mission for success. The most well prepared person is the one who will win the battle and ultimately the war.

7. The Law of increase

The law of increase is one of God’s biggest laws. Every success is an exercise in expansion. The universe, population, highways, cities everything either expands or stagnates and dies. Success is a result or accumulation of expended efforts which results in satisfaction. Boy, didn’t that sound technical?

Natural Laws Govern Humans

These laws of God, given to Man are inborn forces ready to be used. Because man was created with God like qualities so he/she also is to implement these laws of promise. In God’s creation, sounds, tastes, sight, feel, emotion, imagination, compassion, and pleasure are all regulated to satisfy man’s every need.

God may have put a threshold on the senses of man but He didn’t remove the desire to excel. This impulsion to succeed drives humans to experience the creation through his/her relationship with it.

The Door to Opportunity is always open

While the rewards of life hinge on doors of opportunity someone still has to swing them open. There is no one simple answer to all the problems of the world, there are only responses to questions. Mediocrity deprives man of just rewards while the inner man, (spirit) cries for freedom. Regrettably, many people have no desire to succeed, living lives of desperation that are dull, drab and uneventful.

Wake up and Enjoy Life

They never truly wake up from their self-made fate. I know a man who died and they revived him. He said it was like waking up for the first time. His life experience changed in a heartbeat. Everything was new and fresh, and he saw life in an entirely new light.

Because his perception was from another place, he was able to see the opportunity of a second chance afford him. Colors became more vibrant sounds were crisper and everywhere he turned he saw opportunity. Before he saw only survival where potential reward was. God had gotten his attention in a very distinctive way.

Don’t fall into the arms of complacency. Make success your top priority.

Happy Trails

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