scholarly journals Mitgliedschaftseingriff und Normprägung

2020 ◽  
Author(s):  
Jan-David Geiger

The book analyses a commonly used line of argument, known as “infringement of shareholder rights”. Courts and legal literature try to derive specific, unwritten legal consequences from an infringement of shareholder rights, such as, for example, the material control of the general assembly’s resolutions and unwritten responsibilities of the general assembly in company law or the so-called doctrine of a “core area” of shareholder rights. This line of argument supposes that legislators and the parties of a shareholder agreement may infringe shareholder rights by drafting deficient statutory or contractual rules. To the contrary, statutory and contractual rules define the substance of shareholder rights. Following the well-known doctrine stating that fundamental rights are defined by statutory law [“normgeprägte Grundrechte”] shareholder rights could be described as “normgeprägte Rechte” [rights defined by statutory law]. Therefore, a fundamental line of argument in company law is revealed to be a striking misconception, whose methodical consequences are to be analysed in detail.

2020 ◽  
Vol 53 (4) ◽  
pp. 469-500
Author(s):  
Armin von Weschpfennig

Crises are not only a test for society, they also pose a challenge to the legal order. This is revealed by the worldwide handling of the Coronavirus SARS-CoV-2 and the COVID-19 disease with a clarity that until recently probably nobody thought possible. Even in liberal democratic states, far-reaching restrictions on personal freedoms have been imposed, including lockdowns. In addition to questions of proportionality, the scope of the parliamentary prerogative in the Corona crisis has been under discussion in Germany since March 2020. Contrary to some voices in legal literature, even serious encroachments on fundamental rights can be justified, at least temporarily, by executive orders based on the general clause under infection control law and its cursory clarifications. Though, as the duration and complexity of crisis management increases, so too does the constitutional exigency for fundamental decisions by the legislature. The question of parliamentary prerogative also arises in the discussion about compensation payments, for example, for closure of businesses and other establishments during the lockdown. Since special provisions of infection control law often do not apply, some advocate a recourse to unwritten state liability law. However, this law is only geared to selective compensation and does not usually provide a legal basis for state liability in the Corona crisis. Here, too, the legislature must make improvements, if encroachments on fundamental rights – namely on the freedom of property – are no longer deemed proportionate without financial compensation. When assessing proportionality, however, the numerous aid programs must be taken into account.


2020 ◽  
Vol 20 ◽  
pp. 99-123
Author(s):  
Kapilmani Dahal

Civil society is non political sphere and individual made voluntary organization widely understood as the space outside the family, market and state. It is associated for welfare of state on the ground of civic knowledge, civic education and civic virtue. Civil society works and plays its role in the democratic regime. Democratic regime operates on the basis of democratic norms and values. Civil society plays roles in the democratic society relating to maintaining, promoting and strengthening good governance. It plays various roles like participating, mediating interest, mobilizing counter knowledge, influencing policy making, building commitment for public good, giving impetus to community building projects, motivating citizens, government towards co-operation, etc. It can play the communicative role, protective role, control role, socialization role, service delivery role and the global citizenship role in different cases. Major areas of good governance are democracy, rule of law, proprietary rights, corporate governance, human rights, welfare state and labor institution. And in these areas civil society can perform their respective roles. In the case of Nepal some roles have been managed under constitution and statutory law mainly in good governance operation and management act. But these provisions seem inadequate for showing their role visibly. Maintaining good governance through properly implementing fundamental rights, government has not made effective laws yet. Nepalese parliament has promulgated the act named good governance operation and management act 2008. Here some provisions relating to civil society's role in operating and managing process has been mentioned. In this article constitutional role as well as legal role has been taken in due consideration because civil society's constitutional and legal roles have not been duly recognised yet. Thus the study has given emphasis on description and analysis of content relating to civil society 's role managed under the constitution and statutory law act. To draw the conclusion in this study descriptive-analytical and content analysis methods has been used and information has been taken from secondary method. constitution of Nepal and good governance operation and management act 2008 have been taken as major contents for analysis of civil society's role in managing and operating good governance in Nepal.


Author(s):  
Charlotte Villiers ◽  
Georgina Tsagas

The chapter considers whether company law and corporate governance-related initiatives provide effective mechanisms for holding corporations to account for their contribution to climate change. A key regulatory device targeted at corporations is disclosure, the goal of which, in this context, is to achieve greater transparency regarding the risks and opportunities connected to climate change. The chapter explores to what extent climate change-related reporting contributes to the efforts towards reducing global warming. It is argued that there are a number of significant problems with climate-related reporting in its current state, in so far as there are many different requirements, including standards, codes, guidelines, at industry or sector level as well as at national and international levels; all these combined create a chaotic reporting landscape. Moreover, there is no meaningful link between the disclosures required under company law and initiatives within the area of environmental protection; hence it becomes difficult to identify clearly what the key reporting information is and what the responses and possible legal consequences of any such disclosures should be. Consequently, corporations’ accountability for their contribution to climate change is open to question.


2008 ◽  
Vol 36 (2) ◽  
pp. 300-302
Author(s):  
Surendra Malik

Indian Legal literature is comprehensive and exhaustive in that it fully encompasses the law prevailing in India in all its varied aspects. Statutory law, case law, and minor portions of customary and religion-based laws are well documented and readily accessible. Fortunately, from the point of view of a foreign reader, nearly all of the law currently prevalent in India is available in English.


2020 ◽  
Vol 4 (1) ◽  
pp. 83
Author(s):  
Antonius Faebuadodo Gea ◽  
Hirsanuddin Hirsanuddin ◽  
Djumardin Djumardin

This research was conducted to find out how the directors' accountability mechanism caused by an error or negligence caused the limited company to go bankrupt and how the legal consequences on the bankruptcy of a limited liability company. This type of research was classified as a normative legal research or also called doctrinal research, namely research that examined the law as a separate system that was separate from various other systems in society so as to provide a boundary between the legal system with other systems. The approach method used was the statutory approach; and Conceptual Approach. In principle, the Board of Directors was not personally responsible for acts committed for and on behalf of the company based on its authority. The scope of conduct that would be personally accounted for by the directors of the company was negligence because the directors did not fulfill the contents of the agreement and mistakes because the directors commit acts against the law. Bankruptcy of a Limited Liability Company was the bankruptcy of itself, not the bankruptcy of its management, even though the bankruptcy was due to the negligence of its management. So that management should not be held liable jointly for any losses due to negligence and could only be held accountable if the company's assets were not sufficient to cover losses due to bankruptcy Article 90 paragraph (2) of the Limited Liability Company Law).


2020 ◽  
pp. 89-96
Author(s):  
Denys FEDOSEIEV

The article explores time of opening of inheritance under the legislation of Ukraine. The legislation of the category “opening of inheritance” enshrined in the Civil Code of Ukraine is established. The definitions of the concept of «opening of inheritance» available in the legal literature are analyzed and the most substantiated and that corresponds to the legal reality among all analyzed definitions of the category «opening of inheritance» is established. Emphasis is placed on the fact that a significant number of definitions of the concept of «opening of inheritance» is identified with the onset of certain legal facts, and not always taken into account all the necessary circumstances. It is emphasized that for the opening of the inheritance it is also important to have a rule of civil law, which regulates the issue and civil legal personality of the participants in the inheritance. It is noted that the time of heritage opening is an integral part of the concept of «opening of inheritance». The normative and scientific definitions of the concept of «time of heritage opening» are clarified. The analysis is carried out and it is emphasized that some statements are incorrect in the context of understanding the time of heritage opening, in particular, regarding the identification of understandings of the concepts «time of heritage opening», «opening of inheritance», «death of the testator». The own approach to understanding of a category «time of heritage opening» is offered. Circumstances that are directly related to the time of the opening of the inheritance and for which the time of the opening of the inheritance has legal consequences have been established. Attention is drawn to the fact that the time of the opening of the inheritance is in direct interdependence and interaction with such categories of civil law as «term», «term», and «moment». The relationship between the concepts of «term», «term», and «moment» is analyzed. It is proved that with the time of the opening of the inheritance, the terms that have a direct significance for the inheritance process begin. The list of terms in the inheritance law which begin from the date of death of the person (testator) or the announcement of its deceased is defined. The legal significance of the opening of inheritance and the time of heritage opening for inheritance law and inheritance, as well as the need for further research in the relevant field are substantiated.


Author(s):  
María Cinta Costa Torné

En este artículo se pretende hacer un breve estudio de la ilicitud de la prueba y de las consecuencias jurídicas que ello conlleva, así como de las excepciones a dicha ilicitud. La sentencia del Tribunal Constitucional 114/1984, de 29 de noviembre, introdujo en nuestro sistema legal la prohibición de utilizar pruebas obtenidas vulnerando derechos fundamentales. Consecuencia de esta sentencia fue el artículo 11.1 Ley Orgánica del Poder Judicial que prohíbe expresamente la valoración de dichas pruebas, que puedan surtir efectos en el proceso y sirvan para basar en ellas una sentencia condenatoria. No obstante esta regla de exclusión de la prueba ilícita, el riesgo de admitir una prueba obtenida habiéndose vulnerado derechos fundamentales está presente en nuestro proceso a través de las cada vez más frecuentes excepciones, apreciadas por los Tribunales, tanto por el Tribunal Supremo como por el Tribunal Constitucional, que permiten que una prueba ilícitamente obtenida, se llegue a valorarse para que determinados delitos no queden impunes.This repot is a brief study of the illegality of the evidence and its legal consequences, as well as the exceptions to that illegality. The sentence of the Constitutional Court 114/1984, 29th November, introduced in our legal system the prohibition on using evidence obtained violating fundamental rights. According to that sentence Article 11.1 LOPJ prohibit expressly assessment of such evidence that can have an impact on the process and serve them to base a conviction. However this rule of exclusion of illegal evidence, the risk of admitting obtained evidence having violated fundamental rights is present in our laws, through increasingly frequent exceptions, appreciated by both the Spreme Court and the Constitutional Court, which allow that an illegally obtained evidence, could be valuable for certain crimes not to go unpunished.


2021 ◽  
Vol 30 ◽  
pp. 1-2
Author(s):  
Paul Varul

This is the thirtieth issue of Juridica International. The first was published back in 1996, and, in general, one issue has been published each year since then. While 2007, 2008, 2014, and 2017 saw the publication of two issues each, no year has failed to feature. Though serving as a journal of the University of Tartu, Juridica International is also the only peer-reviewed legal journal published in Estonia to enjoy broad international distribution. Thus, for 26 years, it has been the calling card of Estonian jurisprudence on the world stage. However, it has been more than that. The involvement of foreign authors is just as important as the aim of providing Estonian authors with an opportunity to participate in international scientific discussion. There is every reason to be proud of the fact that the journal’s 30 issues have featured authors from 25 other countries: Austria, Belgium, Bulgaria, the Czech Republic, Denmark, Finland, France, Georgia, Germany, United Kingdom, Hungary, Italy, Kazakhstan, Latvia, Lithuania, Norway, Poland, Portugal, Romania, Russia, Slovakia, Slovenia, Sweden, Ukraine, and the USA. Among the authors are many who are in the uppermost echelon of the world’s leading professors in their field. In its first years, one of the main goals for Juridica International was to introduce and analyse the legal reforms carried out in Estonia, which were of vital interest to foreign readers as well; however, this has not been the case for a long time now. Today, the primary focus is on participation in international legal discussion, wherein, alongside the development of national law, great emphasis is placed on European Union law and other cross-border regulation whose reach extends between countries. That said, the purpose of introducing the development of Estonian law and legal thinking at international level has not been discarded. After all, Estonia is still highly noteworthy as a country of successful reforms, not least legal reforms. Therefore, a matter of ongoing interest is whether this country, which has succeeded so well with groundbreaking reforms, can be as successful in a stable situation across the board. The range of topics covered in the 30 issues of Juridica International is very wide; no important area of law has been neglected, and listing all of them would take too long. What could be highlighted above all are topics related to European Union law and the Constitution of Estonia, but also crucial are the writings on many issues related to aspects of the law of obligations, property law, company law, penal law, competition law, personal data protection, media law, medical law, international law, and several other fields. Significant attention has been paid to the possibilities for harmonisation of law and mutual interactions, both between countries and between distinct branches of law. Likewise, the writings have considered key general issues of law, such as its interpretation, the effect of justice policy on legislative drafting, and the protection of the fundamental rights and freedoms of individuals. The ability to publish a journal – and a reason to do so – exists only if readers are interested in that journal. What makes me the happiest is that, over the years, readers’ interest has increased and the geographical area within which people read Juridica International has grown. Most certainly, the fact that for quite some time the journal has been available online has contributed to this. A big ‘thank you’ to all of the readers! I also want to thank every one of the authors, the members of the editorial board, and my colleagues who have made it possible to publish 30 quality issues of Juridica International. I especially wish to highlight the contribution of the foreign members of the editorial board – professors Christian von Bar, Werner Krawietz (1933–2019), Erik Nerep, and Thomas Wilhelmsson – whose participation in the board’s work has played an important role in securing the solid international reputation of the journal. I hope for continued enthusiasm on the writers’ part and interest among readers for the next 30 issues!


Author(s):  
Livia Meret

In 1971 The International Court of Justice in an Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia concluded that the mandate for South-West Africa had been validly terminated by the General Assembly in Resolution 2145 (XXI) of October 27, 1966, and that “the continued presence of South Africa in Namibia being illegal, South Africa is under an obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory.” Further, the Court said that:States Members of the United Nations are under obligation to recognize the illegality of South Africa’s presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and, in particular, any dealings with the Government of South Africa implying recognition of the legality of or lending support or assistance to, such presence and administration.


1999 ◽  
Vol 58 (1) ◽  
pp. 197-221 ◽  
Author(s):  
Brian R. Cheffins

IN the United States, theorising about law has flourished. There has been an increase in the “market share” of theoretically oriented articles in leading law reviews, a proliferation of specialised journals devoted to interdisciplinary approaches to law and much more frequent citation of theoretical scholarship in legal literature. The interdisciplinary movement in legal thought has prompted a strong backlash. Fears have been expressed that “impractical” scholars are doing the legal profession and law students a disservice by pursuing “abstract” theory at the expense of engaging in analysis of legal doctrine.Interdisciplinary scholarship is growing in prominence in Britain. If this trend continues, the experience in the United States suggests that concerns could arise about the practical value of academic law, both inside and outside the classroom. As a result, this is a suitable occasion to assess whether theoretical analysis can make a valuable contribution both with respect to research and teaching. This essay advances the thesis that thinking about law in interdisciplinary terms has a beneficial influence on academic writing and should lead to improvements in the classroom. The case in favour of the use of theory is set out in general terms and is then illustrated by considering a field often thought to be primarily technical and “vocational” in nature, namely company law.


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