Juridica International最新文献

{"title":"DEVELOPMENT OF THE THEORY OF PARLIAMENTARISM IN MODERN DOMESTIC AND FOREIGN SCIENCE","authors":"O.Iu. Dubynskyi, Yuliia Lomzhets","doi":"10.32843/JURIDICA/2020.2.1","DOIUrl":"https://doi.org/10.32843/JURIDICA/2020.2.1","url":null,"abstract":"","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":"56 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73430098","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":"CHALLENGING ISSUES OF LEGAL PROCEEDINGS BASED ON AGREEMENTS: ASPECTS OF JUDICIAL IMPARTIALITY","authors":"I. Hloviuk","doi":"10.32843/JURIDICA/2020.1.5","DOIUrl":"https://doi.org/10.32843/JURIDICA/2020.1.5","url":null,"abstract":"","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":"123 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77226389","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":"Die strafrechtliche Verantwortung der juristischen Person: Rechtsvergleichende Überlegungen zwischen Finnland und Estland","authors":"R. Lahti","doi":"10.12697/ji.2019.28.07","DOIUrl":"https://doi.org/10.12697/ji.2019.28.07","url":null,"abstract":"Applying a comparative perspective, the paper examines questions related to corporate criminal responsibility in Finland and Estonia. Corporate criminal liability was introduced in 1995 in Finland and in 2001 in Estonia, via regulations implemented in conjunction with comprehensive reform to the penal codes of these countries. Both the legislation and the legal practices of the two manifest many similarities, partly in principle and partly de facto. However, differences can be noticed – i.a., in the ways in which allocation of the individual’s criminal liability for organisational crime is regulated, alongside how the maximum sentences and the determination of punishments are regulated.","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41317326","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 Concept of Recovery of Credit Institutions in the Bank Recovery and Resolution Directive","authors":"Martin Maarand","doi":"10.12697/ji.2019.28.12","DOIUrl":"https://doi.org/10.12697/ji.2019.28.12","url":null,"abstract":"New regulations, obligations for credit institutions, and powers for authorities were created by the Bank Recovery and Resolution Directive (BRRD). While resolution of a credit institution is clearly defined, it is less clear whether recovery of a credit institution could and should be treated as a separate concept under the BRRD; which elements it encompasses; and how these elements enhance and are linked with the pre-existing prudential regulation, processes, and tools. The problem is that if recovery is to be deemed a differentiable concept, specific legal rules and principles could be applicable that are separate from the prudential or the resolution framework – whether existing ones or other, easily developed rules and principles. This is particularly crucial when authorities exercise powers related to recovery, because following appropriate rules and principles has a direct connection with state liability. In consideration of these issues, the article presents several important conclusions: Firstly, recovery in the sense applied in the BRRD can be distinguished from both the prudential framework and the concept of resolution, on the basis of function; the concept of recovery can be considered to consist of recovery planning, early intervention measures, and two measures of further intervention that can be employed. Some early intervention measures are recovery-specific and broaden the supervisory powers significantly, while others do not and show overlap with supervisory powers derived from the prudential framework. Recovery planning and exercising early intervention measures can take place in parallel with processes connected with the prudential framework while nonetheless maintaining recovery as a usefully separate concept.","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47965227","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 Principle of Trust for Exceptions to the Non-Regression Clause in the Case of Delict of Negligence","authors":"Laura Feldmanis","doi":"10.12697/ji.2019.28.10","DOIUrl":"https://doi.org/10.12697/ji.2019.28.10","url":null,"abstract":"The delict of negligence is defined in terms of violation of the duty of care. While that duty entails displaying the level of care required from anyone and necessary for communication in the relevant society, there is no comprehensive list of the standards pertaining to the duty of care, especially as would be foreseeable from an objective perspective. In addition, a question arises: in which case does the person have to take responsibility in accordance with the delict of negligence for damaging a person’s legal rights stemming from a crime committed by a third party, or rather is this specific person’s duty restricted to his own acts. While the answer may seem at first glance to be provided by the non-regression clause, in line with which a person’s intervention within a chain created by the person who caused the original threat rules out the possibility of accusing the person who caused the original threat, the matter is not so simple: exceptions to the non-regression clause exist, and it is not always applicable. Certain principles are employed in the dogmatics of penal law accordingly, to specify how the duty of care and objective predictability are substantiated and how to handle exceptions to the non-regression clause. One of these rules, which is an outgrowth of the traffic rules, is the principle of trust. Applied not just with regard to traffic but also in situations of division of duties and in relation to general communication between people, this principle has been confirmed in Estonian Supreme Court practice. The article considers two significant questions that arise in connection with the principle of trust: firstly, in what cases is there a reason to trust, and, secondly, where is there a reason to doubt? After addressing the meaning of the principle of trust, the paper examines the effect on liability in scenarios wherein the person who originally caused the threat acts out of negligence yet the threat caused by that person is actualised in the form of an act violating legal rights by another, realised in either delict of negligence or an intentional delict. Finally, the article presents the conclusion that it is important to investigate which element of the structure of delict the principle of trust belongs to.","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47976519","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":"Truth in Criminal Law and Procedure: The Erosion of a Fundamental Value","authors":"Thomas Weigend","doi":"10.12697/ji.2019.28.04","DOIUrl":"https://doi.org/10.12697/ji.2019.28.04","url":null,"abstract":"The article deals with the relevance of truth in criminal procedure and criminal law. In criminal procedure, it is important to maintain an honest search for the truth as a distinctive feature of the proceedings. One should therefore be sceptical of shortcuts to justice that rely exclusively on the defendant’s consent as the basis for the court’s judgement. Criminal law has wisely refrained from making lies punishable except in special contexts. Although the ease of spreading lies via the internet leads to extended risks, especially for the political process, criminal prohibition of spreading ‘fake news’ is not advisable, because these efforts tend to be overly broad and promote state censorship.  ","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45552442","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":"Reforms of the Criminal Sanctions System in Germany – Achievements and Unresolved Problems","authors":"F. Dünkel","doi":"10.12697/ji.2019.28.05","DOIUrl":"https://doi.org/10.12697/ji.2019.28.05","url":null,"abstract":"The German criminal sanctions system has witnessed major law reforms in the last 50 years in expanding fines (which have replaced short-term imprisonment) and introducing suspended sentences either with or without the supervision of the Probation Service. The reforms of the 1960s–1980s have been a success and (in combination with the expansion of diversion schemes for minor crimes) have contributed to achieving one of the lowest prison population rates in Europe. However, further reforms are necessary – in particular, with regard to the large number of people serving a prison sentence for defaulting on fines. Germany has, for good reason, restricted electronic monitoring to the very few cases of dangerous offenders (convicted for violent or sexual crimes) who have had to be released after having served their sentence in full or have been released from psychiatric institutions or after other preventive deprivation of liberty.","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46355610","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":"Criminal Liability of Third Parties with Regard to Free-Responsible Suicide: New Developments in the German Jurisdiction","authors":"H. Lorenz","doi":"10.12697/ji.2019.28.09","DOIUrl":"https://doi.org/10.12697/ji.2019.28.09","url":null,"abstract":"The German Federal Court of Justice’s 7.3.2019 judgement on questions of criminal liability of third parties with regard to free-responsible suicide offers a good opportunity to change the restrictive Wittig jurisdiction from 1984 and point in a liberal direction. The tremendous importance of self-determination indicates the impunity of third parties involved in a free-responsible suicide in which the final killing act is controlled by the person who is tired of life. This result gets confirmed by new legislation in the German Civil Code and earlier judgements in cases of euthanasia.","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47088907","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":"Superior Responsibility in Estonian Criminal Law and its Compliance with International Law","authors":"Andres Parmas","doi":"10.12697/ji.2019.28.08","DOIUrl":"https://doi.org/10.12697/ji.2019.28.08","url":null,"abstract":" If a domestic criminal-law system is to be equipped to operate in conformity with the underlying idea of complementarity that is among the International Criminal Court’s underpinnings, it is vital that, amongst other aspects of general principles of responsibility, the superior responsibility doctrine be transposed into domestic law properly. Accordingly, the paper deconstructs Art. 88 (1) of the Estonian Penal Code, which stipulates the superior responsibility concept in the Estonian legal system, for the purpose of assessing whether it exhibits compliance with customary international law on superior responsibility or Art. 28 of the Rome Statute. The analysis presented reveals considerable differences between the Estonian regulatory scheme and relevant international norms: it appears that there are several respects in which Estonian regulation does not meet the international standard and, hence, large lacunae are to be found in Estonian law on superior responsibility. For this reason, the article concludes with a recommendation that Estonian regulation of superior responsibility be complemented in such a way that it is rendered consistent with international law – specifically, with the requirements of Art. 28 of the Rome Statute – while simultaneously taking into consideration the demands stemming from Estonian criminal-law dogmatics, especially the guilt principle.","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43165357","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 Human Right of Reproduction: Ovum Donation and Surrogacy","authors":"H. Rosenau","doi":"10.12697/ji.2019.28.06","DOIUrl":"https://doi.org/10.12697/ji.2019.28.06","url":null,"abstract":"The right to reproduction, including the use of modern methods of fertility medicine, is well founded on constitutional grounds and is protected by the Constitution Germany and of Estonia as well. This right is protected also at the level of European human rights, by Article 8 of the European Convention on Human Rights, which addresses the right to a private and family life. In light of Article 8(2) of that convention, restrictions to these are deemed legitimate only when they are based on scientifically valid evidence and to protect the wellbeing of the child. The author concludes that the current state of scientific knowledge gives insufficient reason to justify prohibition of ovum donation and surrogate motherhood. Said prohibition discriminates against people who rely on such methods (thereby infringing on Article 14 of the European Convention on Human Rights and Article 3(1) of the German Basic Law). Therefore, ovum donation and surrogacy should be allowed by law, as is proposed under sections 6 and 8 of the proposal for a modern law on reproductive medicine (AME-FMedG) issued by the Augsburg and Munich Working Group of medical ethics lawyers.","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48171354","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}