Komparativ ret

This book focuses on Chinese cases on the CISG decided by Chinese courts of all levels, mainly from 1990 to 2005. During this period, the number of cases grew gradually. The total number of cases remained low, the reasons of which might be the following: parties were not familiar with the CISG hence decided to opt out of it; the case collection and report systems in China at that time were not as developed as now rendering many cases inaccessible.  This book deals with the cases in the early days of the development of the CISG in China. These cases reflect how People's Court of all levels started to deal with various issues arising from the CISG and will help understand whether and how the People's Courts change their approaches to the interpretation and application of the CISG in the future.

This book provides an in-depth overview of what is currently happening in the field of Law and Artificial Intelligence (AI). From deep fakes and disinformation to killer robots, surgical robots, and AI lawmaking, the many and varied contributors to this volume discuss how AI could and should be regulated in the areas of public law, including constitutional law, human rights law, criminal law, and tax law, as well as areas of private law, including liability law, competition law, and consumer law. Aimed at an audience without a background in technology, this book covers how AI changes these areas of law as well as legal practice itself. This scholarship should prove of value to academics in several disciplines (e.g., law, ethics, sociology, politics, and public administration) and those who may find themselves confronted with AI in the course of their work, particularly people working within the legal domain (e.g., lawyers, judges, law enforcement officers, public prosecutors, lawmakers, and policy advisors).Bart Custers is Professor of Law and Data Science at eLaw - Center for Law and Digital Technologies at Leiden University in the Netherlands.Eduard Fosch-Villaronga is Assistant Professor at eLaw - Center for Law and Digital Technologies at Leiden University in the Netherlands.

"Authentic and practical teachings on what lies at the heart of Tibetan Buddhism, including karma, renunciation, bodhichitta, kindness, preparing for death, and much more, from a fresh voice within the tradition"--

This book presents an important discussion on land tenure rights for the effective implementation of sustainable soil management provisions. It investigates a variety of aspects, such as the clash of modern and traditional tenure concepts, forms of illegal or illegitimate land acquisition, and the preconditions for legal and legitimate investments. In addition, the book analyses the challenges to ensuring secure land tenure rights in Africa and in Germany. Lastly, it provides information on the role of women in this context.This fifth volume of the International Yearbook of Soil Law and Policy is divided into four parts, the first of which deals with various aspects of the theme "e;Land Tenure Rights and Sustainable Soil Management"e;. The second part covers recent international developments, the third part presents regional and national reports, and the fourth discusses overarching issues. Given the range of key topics covered, the book offers an indispensable tool for all academics, legislators and policymakers working in this field.The "e;International Yearbook of Soil Law and Policy"e; series discusses central questions in law and politics with regard to the protection and sustainable management of soil and land - at the international, national, and regional level.

This book offers readers an accessible and broad-ranging guide to Environmental Public Interest Litigation (EPIL), which has burgeoned in China over the past decade. The aim of this book is to provide a systematic review of Chinese experiences with EPIL in environmental matters, both with a view to gauging its success to date and well as discussing some more critical aspects. To this end, the book systematically examines the establishment and development of EPIL in China's legal, social, and political contexts. It examines particularly the significant role and functions of EPIL in China's environmental governance, and the far-reaching impacts on Chinese civil society and governments. It also offers readers an insiders' perspective in terms of procedural and substantive issues with respect to EPIL, by reviewing the institutional designs, theoretical underpinnings and specific mechanisms, the roles of various participants and stakeholders involved in this legal process. At the same time,it studies leading EPIL cases raised from environmental pollution, natural resource damage and ecological damage, and the effectiveness of environmental adjudication that sustains EPIL as a new form of judicial instrument. This book is written to remedy the gap between Chinese and English literature in this area of law. The analysis of these issues, through a historic and comparative perspective, reveals the strengths and weaknesses of the current legal regime and serves as a basis for recommendations for bringing about more effective EPIL in China.

Blockchains and smart contracts are emerging technologies that pose unique challenges for legal systems. This book outlines the extent to which these new and innovative technologies could have potentially disruptive effects on contract law in Europe. It does so through a comparative, three-part analysis of the recognisability and effects of smart contracts in European legal systems. First of all, in light of the technologies¿ transboundary nature, the book employs a comparative approach, considering French law, German law, English law, and Dutch law to analyse the impact on the different systems of contract law. While doing so, it also addresses the formation, interpretation, and vitiation of contracts. Secondly, it analyses the impact of these technologies on European laws regarding unfair terms in consumer contracts and argues that the existing rules should be applied to smart legal agreements in business-to-consumer relations. Lastly, it analyses the current European rules of private international law on the basis of which jurisdiction and applicable law are developed. In this respect, the book concludes that the vast majority of these European rules are ¿smart contract-proof¿.

¿Can I choose to die?¿ As the number of requests for euthanasia and physician-assisted suicide continues to rise, human rights law faces a new conflict: the right to die vs. the right to life¿ The right to die or, in other words, ¿the right to choose the time and manner of one¿s own death¿ is a question of personal autonomy and its limits. This book provides a comprehensive understanding of the right to die and sheds light on its possible future under the European Convention on Human Rights. After setting a clear framework by defining the key terminology, the book takes a two-part approach to achieving its aim.The first part focuses on the right to die in practice by examining selected jurisdictions. Switzerland, which is famous for its assisted suicide organizations, and the Netherlands, which was the first country to legalize euthanasia, are examined in detail. Belgium, Germany, the United Kingdom, and -as an exception to the Convention perspective - Canadaare also included. While this examination offers a better understanding of what the right to die looks like in practice, it also provides insights on the slippery slope argument, which serves as a counterweight to personal autonomy, without making a definitive statement on its validity. This part also illustrates the different paths that led or did not lead to the right to die in practice. The second part is an analysis of the European Court of Human Rights case law on the right to die. The Court has made important statements in only very cases, while its caution when approaching such a delicate and controversial topic among its 47 members is understandably emphasized. This analysis of the Court¿s approach to the balancing of personal autonomy against other interests allows us to take a look back at the practice in more permissive jurisdictions through the lens of the Convention. Taken together, the book¿s two parts provide valuable lessons for countries that decideto practice assisted dying, which are outlined in the conclusion. In addition, given that a purely legal approach can only offer a partial picture, the book argues that an interdisciplinary approach would be much more favorable in terms of providing the necessary basis for the right to die debate.

Despite the economic relevance of trade secrets, their legal protection is not based on a robust theoretical corpus, and a large uncertainty remains regarding how they should be legally apprehended. The present book investigates the foundations of their legal protection by assessing its justifications and aims to define how this legal apprehension should be organized.The book starts with a comparative analysis of the US and the EU legal frameworks. It demonstrates the parentship existing between the two systems of protection and highlights that the incremental structuring of trade secrets protection has led to legal systems lacking broad-based conceptual foundations. In both legal orders, trade secrets rely on blurred protection, formally anchored in unfair competition, the strength of which, however, comes closer to that offered by intellectual property law. In this convoluted architecture, the judiciary is required to play a decisive role,especially at the enforcement stage. However, the absence of clarity concerning the telos of trade secrets protection leads to legal uncertainty, potentially incoherent enforcement, and, all in all, to inefficient outcomes from a welfare perspective.The book then explores a theoretical framework based on a distinction between two legal objects: the undertakings¿ secret sphere and secret pieces of information. Securing the undertakings¿ secret sphere appears as a condition for the competition process to happen in an economy working under structural uncertainty. It requires objective regulations enforced by public authorities. On the other hand, the legal apprehension of secret pieces of information should be considered as falling within the realm of immaterial goods regulation aiming to solve the deficit of marketability of this type of good. This might call ¿ after conducting a careful policy trade-off ¿ for the establishment of relative (i.e. inter partes) subjective rights.

The analyses focus on succession and obligation law norms shaping the legal status of an heir and their comparison within Polish and German law systems. The book analyses the impact of the instruments of contract law on the status of an heir. The adopted methodology combining the internal-national and external-comparative perspective allows the authors to present "similarities in dissimilarities" within institutions of the German and Polish succession law. The broad analyses of legal doctrine and jurisprudence can serve as a source of knowledge and points of reference for legal practitioners, courts and legislators.

Annette Petow untersucht Corporate-Governance-Kodizes und verortet sie in einem interdisziplinär herausgearbeiteten Kontinuum unternehmensbezogener Selbstregulierung. Um diese Kodizes deuten zu können, identifiziert und systematisiert sie Konzepte aus der Regulierungsliteratur und der Ökonomie. Zudem beleuchtet sie die Durchsetzungsmechanismen von Corporate-Governance-Kodizes und entwickelt beide Untersuchungsbereiche zu Elementen einer kodexbezogenen Selbstregulierungslehre. Im Anschluss nimmt die Autorin eine Bestandsaufnahme der Entwicklungen in Bezug auf Corporate-Governance-Kodizes vor, die als Kodexbewegung bezeichnet werden können. Aufbauend auf einer rechtsvergleichenden Analyse der geltenden Corporate-Governance-Kodizes in Großbritannien, Frankreich und Deutschland auf Basis einer gebildeten Matrix von Kodexthemen arbeitet sie schließlich eine kodexbezogene Konvergenzlehre heraus.

Administrative silence, also known as formal inactivity of the administration, is an important topic in the field of comparative administrative law and has gained recognition in many legal systems around the world. It is seen as a necessary tool for the protection of individual rights and, in many jurisdictions, it is considered a constitutional guarantee that citizens have against the powers of administrative authorities. Many international human rights treaties impose a duty on these authorities to respond to citizens petitions. However, when there is a failure in this duty by an administrative authority, there is a requirement to determine how this has happened and the consequences of this failure. This book provides an overview of the concept of administrative silence, its importance in protecting individual rights, and explores how it is recognised and applied within 21 jurisdictions around the word. It is a useful reference for anyone interested in the subject and it aims to improve knowledge on the topic and gives it the attention that it deserves within the framework of comparative administrative law.

Cooperation across borders requires both knowledge of and understanding of different cultures. This is especially true when it comes to the law. This handbook is the first to comprehensively present selected legal cultures based on a very specific set of structural elements which can be found in all such cultures. Legal cultures are a product of and impacted by certain fundamental and commonly shared ideas on and expectations of the law. In all modern societies these ideas are to a certain degree institutionalized or at least embedded in institutionalized practices. These practices determine the way lawyers are educated and apply the law, how they engage with the ongoing internationalization of law and what kind of values they adhere to. Looking at these elements separately enables the reader to identify similarities and differences and to explain them contextually. Understanding these general features of legal cultures can help avoid misunderstandings or misinterpretations of foreign law and its application. Accordingly, this handbook is a necessary starting point for all kinds of legal comparative studies conducted by academics, students, judges and other legal practitioners.

The book provides a concise overview of currently applicable regulatory frameworks of states which are among the world leaders in research and development (R&D) of cell and gene therapies. Developments in genome editing are expected to lead to new possibilities for the treatment of hereditary diseases in humans. The treatment of such often severe but hitherto uncurable diseases can be based on genome-edited induced pluripotent stem cells (iPS cells). Such treatments constitute combined cell/gene therapies. These therapies need to be governed by a regulatory framework which ensures quality, safety, and efficacy of the relevant therapeutic products. On the other hand, such regulations may retard product approval and impede R&D. Accordingly, national regulations for therapies based on genome-edited iPS cells are an important and, as the case may be, decisive factor for both researchers and industry regarding their decision where to locate their R&D activities. Therefore, regulatory frameworks impact significantly on the competitiveness of states and their economies. This is why a comparative analysis of laws and regulations of different countries matters. Such a comparative legal analysis provides an important insight into regulatory concepts which, in turn, may inspire adjustments of, or amendments to, domestic legal regimes. For this purpose, experts present country reports on France, Germany, Japan, South Korea, Switzerland, and the USA. The reports on France and Germany also refer to the parameters and implications arising from pertinent EU law. This contributed volume is aimed at researchers, but also at, e.g., legal scholars, lawmakers, regulators, and political decision makers.

This book presents the essential knowledge and legal practice for establishing and operating companies in China. The book includes 6 chapters: Establishment of a Company; Shareholders, Directors, Supervisors, Senior Executives; Investment, M&A and Creditor's Rights; Financing and Guarantee; Alteration, Liquidation and Cancellation; Malfeasance Most Likely to be Overlooked. The end is a summary of the laws and regulations involved in the chapters above. From a professional perspective, this book explains and analyzes the key points, practical difficulties and potential risks that an enterprise may encounter in the process of establishment and operation, describes in detail the key points for handling various businesses and matters, the notes for selection of different administrative procedures, and conducts multi-dimensional comparison and case analysis to facilitate readers' understanding. This book is a practical guide for everyone to understand how to establish and operate a company in China, which is not only suitable for readers who want to start a business or have already started a business, but also suitable for overseas investors to fully understand how to establish and operate a company in China. It is also helpful for investors and entrepreneurs to lead the enterprise to be more standardized and more compliant so as to achieve better operation and development. In addition, this book could be used as a reference book for legal and financial professionals to help professionals become more professional.

This book explores how constitutional courts have transformed communication and overcome their reluctance to engage in direct dialogue with citizens.How has the information revolution affected the relationship of constitutional courts with the public and the media? The book looks in detail at the communication strategies of the US Supreme Court, the Supreme Court of Canada, and in Europe the German Federal Constitutional Tribunal, the French Conseil Constitutionnel and the Italian Constitutional Court, arguing that when it comes to the relationship between courts and the media, different jurisdictions share many similarities. It focuses on the consequences of the communication revolution of courts both in terms of their relationship with public opinion and of the legitimacy of judicial review of legislation.Some constitutional courts have attracted criticism by engaging in proactive communication and, therefore, arguably yielding to the temptation of public support. The book argues that objections to the developing institutional communications employed by courts come from a preconceived notion of public opinion. It considers the burden the communication revolution has placed on constitutional courts to achieve a balance between transparency and seclusion, proximity and distance from public opinion. It puts forward important arguments for how this balance can be achieved.The book will interest scholars in constitutional law and public comparative law, sociologists, historians, political scientists, and scholars of media law and communication studies.

""Lawfare" describes the systematic use and abuse of legal procedure for political ends which, in post-genocide Rwanda, contributed to the making of dictatorship. Jens Meierhenrich explains how and why Paul Kagame's Tutsi-led government in the period 1994-2019 learned to substitute law for war in its consolidation of authoritarian rule"--

Proportionality is a ubiquitous concept in law. While mostly associated with fundamental rights review, it also plays an important role in private law. In this context, proportionality requirements can be the result of both traditional private law reasoning and the influence of constitutional law. The present volume aims to explore different forms and functions of proportionality in selected private law contexts and jurisdictions. The contributions cover constitutional and theoretical underpinnings of proportionality's role in private law as well as specific examples of how proportionality affects private law in different areas and across different jurisdictions. They include perspectives on German and US-American private, procedural, and constitutional law as well as a special focus on the European dimension.

¿Given their ethnic diversity, to what extent, and at what cost and benefit to human dignity, can European countries adopt and adapt plural democracy?¿ The contributors to this volume offer answers to this question from a variety of multidisciplinary perspectives within the framework of the integral theory of law and the state. Their shared aim is to explain legal phenomena in the context of other relevant issues and to identify, analyse and critique conceptualizations, problems and situations. This volume is rooted in the historical and contemporary European experience with special cases from Bosnia and Hercegovina, Croatia, Latvia, Slovenia, Spain and Canada which are relevant for understanding the European problem. Solutions to the problem are sought through innovative interpretations of the rule of law, democracy and human dignity, which are followed by argumentation about how these concepts, when recognized as European legal principles, can be implemented in order to avoid ethnic conflicts.Following an introduction that defines the problem at the centre of the book and explains how legal theory can be used to address it, the book consists of eleven contributions divided into three thematic sections. The first covers topics concerning the European principles which can help avoid ethnic conflicts: the principle of compulsory adjudication in interstate relations, the principle of democracy, and principles regarding the recognition of individual and collective identities. These European principles are then investigated by drawing on legal and political theories. The second section presents three ways of conceptualizing ethnical needs in multi-ethnic states: asymmetric federalism, dêmoicratic account and cooperative federalism. The third and final section elaborates on issues concerning the protection of minority rights: the role of judicial ideology in protecting minority rights, citizenship, the EU mechanism for the protection of minority rights, and theimportance of remembering tragic events affecting minorities.

Im Mittelpunkt der stiftungsrechtlichen Gesetzgebung in beiden Ländern steht wesentlich die gemeinsame Absicht, zur Förderung des Stiftungswesens beizutragen und vor allem die Transparenz der Stiftung zu erhöhen. Dies zeigt sich besonders deutlich in der grundlegenden Reform des deutschen Stiftungsrechts aus dem Jahr 2021. Hierbei spielt die Kontrolle der Stiftung eine wichtige Rolle. In dieser Arbeit untersucht die Autorin deshalb drei Kon-trollen der Stiftung (stiftungsinterne Kontrolle, staatliche Stiftungsaufsicht und öffentliche Kontrolle) nach deutschem und koreanischem Recht. Durch diesem Rechtsvergleich versucht sie, die bisher ungelösten stiftungsrechtlichen Probleme der beiden Länder aus einem ganz anderen Blickwinkel zu beleuchten und neue Erkenntnisse zu vermitteln.

Provides unique access to the key elements of David Sellar's pioneering contribution to Scottish legal history This collection brings together in one volume the principal essays of David Sellar (1941-2019) on Scottish legal history, focused upon the influence of Celtic, Canon, English and customary law in the development of Scots law. It includes a paper written during Sellar's time as Lord Lyon King of Arms (2008-2014) but left unpublished at his death, along with a general introduction by Hector L. MacQueen. Sellar was a pioneering historian of Scots law who rejected previous interpretations of the subject as a series of false starts and rejected experiments. He emphasised instead the continuity of legal development, with change a process of integration of external influences from very early times on. Sellar's approach, articulated mainly through essays published in diverse places over four decades, has had significant influence upon our general understanding of legal history in Scotland as well as leading to appreciation elsewhere of its comparative significance. By gathering the major essays in a single collection, this book demonstrates the scope and reach of Sellar's overall contribution. It provides an opportunity to view Sellar's work as a whole and to access his distinctive perspective on the overall trajectory of Scottish law. Hector L. MacQueen is Emeritus Professor of Private Law at the University of Edinburgh.

This book investigates the regulation and promotion of financial inclusion and provides a comparative analysis of the regulation, promotion and enforcement of the relevant laws in the SADC (in particular, South Africa, Namibia, Botswana and Zimbabwe), as well as the challenges of financial inclusion. In turn, it evaluates financial inclusion in the context of specific challenges faced by unbanked and underbanked customers, who are easy targets for cyber criminals because they tend to have lower levels of digital literacy. The book presents novel discussions that identify the challenges and flaws associated with the enforcement of financial inclusion laws and related measures intended to promote financial inclusion in the SADC region. This is primarily done in order to reveal the current strengths and weaknesses of financial inclusion laws in relation to certain aspects of the companies, securities and financial markets in the region. For example, there is no commonfinancial inclusion instrument/law that is effectively and uniformly applied throughout the SADC. This has impeded the enforcement authorities¿ efforts to effectively combat financial exclusion across the region.The book is likely the most comprehensive study to date on the regulation and promotion of financial inclusion in the SADC region and fills a major gap in SADC and African legal jurisprudence. As such, it offers a valuable asset for policymakers, attorneys, bankers, securities (share) holders, and other market participants who deal with financial inclusion, as well as undergraduate and graduate students interested in the topic.

This book explores the challenge that the commons present to the private-public dichotomy in a wide variety of national legal systems representing the West European legal tradition as well as post-socialist and post-colonial experiences. It presents national reports from 13 jurisdictions, ranging from Belgium and the South Africa to the US. Constituting the outcome of the 20th General Congress of the International Academy of Comparative Law, held in Fukuoka, Japan in July 2018, it offers a valuable and unique resource for the study of comparative law.

Current Legal Issues in American and Taiwanese Law is the culmination of a collaboration between National Taiwan University's College of Law and the Robbins Collection and Research Center at Berkeley Law. The essays included in this volume engage in topics such as comparative criminal law, regulatory law, administrative law, the judiciary, and more. These essays were presented at a multiyear long series of conferences that brought together scholars from both universities.

This book explains how judicialisation of politics leads to the politicisation of adjudication and further weaponisation of the law. Exploring the judicial-political dynamics of South Africa from 2009 onwards, the work traces the consequences of the judicialisation of politics for institutional resilience and broader constitutional stability.

This book reflects on constitutional balancing from the perspective of fundamental labour rights. It reviews the theoretical debates on judicial balancing and the approaches adopted by the Court of Justice of the European Union and the European Court of Human Rights, to proceed with a closer assessment of Italian and Spanish judicial traditions.

This book examines the extent to which Brexit has impacted upon the operation of the British Constitution, prompting in turn consideration of how some of the factors which contributed to the outcome of the 2016 referendum, as well as the event of Brexit itself, might inform debates surrounding constitutional reform moving forward. The work seeks to make sense of the constitutional implications of Brexit and to revisit some of the key debates that have taken place in respect of particular constitutional reform proposals in order to assess the extent to which recent Brexit-related developments inform the perspectives which are taken upon their merits and prospects. The book is divided into two parts. The first provides some context for the substantive treatment of the potential impact of Brexit on constitutional reform debates which forms the focus of Part II. Part II centres on various specific constitutional reform themes or issues, which are explored further within the context of Brexit. For each such issue, the main parameters of the debates which have taken place are sketched out before moving on to consider how it has informed, or may come to be informed, by the phenomenon of Brexit. By so doing, it looks to some future directions for constitutional reform which take account of the factors driving the discourses which gave rise to the referendum outcome and subsequent developments, as well as offering meaningful responses to these. The book will be of interest to academics, researchers and policy-makers working in the areas of constitutional law, constitutional politics, philosophy and history.