Pater Est Quem Nuptiae Demonstrant w Szwajcarii – ujęcie komparatystyczne

The statutory presumption of paternity of the mother’s husband causes many problems and – contrary to common belief – does not always protect the child’s best interest. The paper examines the impact of this legal principle on family life and considers its viability in today’s society. The research focuses on Swiss law but also makes references to German and Polish regulations. In a broader sense, the analysis is made from the perspective of the biological father, who is not the legal father. Based on a critical analysis, the new approaches of intentional parenthood, multiple parents and consensual change of paternity are discussed. Concluding that the mother’s marital status cannot determine the child’s affiliation, the author recommends a more flexible solution.

Sleep and the Fitness to Drive: A Swiss Perspective

Medical conditions and behavioral patterns affecting sleep are a largely underestimated threat to traffic safety. Unsupervised or even illegal self-treatment of sleep issues by, for example, anti-histamines, cannabis products, or stimulants, questions safe driving and the fitness to drive as well as low compliance/adherence to treatments (CPAP, medication, etc.) of medical conditions, such as OSAS, or narcolepsy. In such cases, Swiss law calls for a medical assessment of the fitness to drive by experts in traffic medicine. With increasing complexity, this medical assessment is escalated in a four-tiered system of qualified experts, ranging from a qualified practitioner to experts in traffic medicine, at, for example, an Institute for Legal Medicine. The following overview provides insight in the Swiss framework of traffic medicine assessments that – with all caveats and potential drawbacks – helps mitigating the risk of sleep-related accidents. For this, we first introduce Swiss traffic medicine and then argue for consistent terms and measurements to assess sleepy driving. A concise summary of those sleep related conditions most relevant in traffic medicine is followed by an overview over potential issues of sleep-medication.

Le secret médical

Medical secrecy is going through a troubled period today. The multiplication of health care providers, technological progress and the pressure of financial policies tend to put pressure on this institution and to redefine its contours. In Swiss law, medical secrecy is now governed by an abundance of legal provisions whose implementation has become complex and unpredictable. After a first part dealing with the historical origins of medical secrecy, its main current factors of influence and its ethical justifications, the book systematically analyzes the multiple duties of confidentiality that may apply to caregivers, their respective limits and their articulation. The study concludes with an analysis of several scenarios for the future of medical confidentiality.

Obligatory Share and Entitled Entities: An Obligatory Share during Testamentary Inheritance

This paper focuses on the results of the research of normative acts and practices regulating the institute of mandatory shares and entities with the right to the mandatory shares. Formation of the correct view on this issue is a precondition for the redistribution of property in accordance with the law of inherited property, both in court and in notarial practices. In turn, the proper redistribution of the inherited property is directly related to the protection of property and inheritance rights. This is why the studied issue does not lose its urgency. The aim of the paper is to correctly define the essence of the mandatory share, as well as the subjects entitled to the mandatory share, to identify the shortcomings in this issue, and to develop recommendations for their perfection. The comparative-legal, logical, and systematic analysis of norms were used to achieve this goal. Problems were analyzed using the examples of Georgian, German, and Swiss law. In defining the mandatory share and the subjects entitled to it, both common features and essential differences were revealed between the named models, This, however, makes it possible to define a more effective model - a number of advantages of the Georgian model were identified - which is reflected in the mechanism of effective exercise of the right to mandatory share without a court. In addition, the study found that the testator’s grandchildren are not eligible entities to receive a mandatory share if their parent died before the testator. The legal norms of inheritance are interpreted in relation to the Constitution. On this basis, the shortcomings of a number of norms for both the Civil Code of Georgia and the Law of Georgia “On Entrepreneurs” and even non- compliance with the Constitution are identified. This is why it is necessary to improve them and create the stable guarantees for the right of property and inheritance.

Keeping up with the Times: The Transformation of the Publicity Regime with New Movable Property Security Rights and Developments in Blockchain Technology

For a long time, the publicity regime over movable property has been associated with possession. Many modern legal systems still operate on Roman law principles concerning the validity of transactions: Whoever is in possession of a movable asset generates the legal presumption that he or she rightfully owns that asset. Immovable assets on the other hand are tied to a different concept due to the value and meaning ascribed to them. Whereas possession signals who has which rights to claim against whom, inscriptions made in a public registry (such as a land registry) determine the fate of immovable property. Over time, reforms in the law on secured transactions have resulted in a less strict approach adopted in executing transaction relating to movable property to enable the establishment of limited rights in rem and their implementation. Regardless, most civil law jurisdictions still deem the transfer of possession as compulsory for a valid right of pledge over movable property. This article elaborates on the most significant changes to the field of property law and why certain countries may reconsider their traditional approach, especially since yet another wave of change is coming in the form of Blockchain registries. Although certain countries’ legal systems are bound to the old-fashioned principle dating back to Germanic and Roman laws, many others like the Belgian, French and Turkish systems have modernized their publicity regime applied on movable assets and have a special registry, whether regional or nationwide, for transactions related to movables. While providing a few examples from common law countries, this article is an in-depth, comparative analysis into the current condition of Swiss law on this matter and the modifications implemented under French and Turkish law. In the last section, the article reviews the imminent interaction between the publicity regime of immovables and blockchain technology.

Extended Access to Hormonal Contraception in Pharmacies: A Survey among Swiss Pharmacists

Background: Worldwide the availability to Hormonal Contraceptives (HC) varies from over the counter (OTC) to prescription-only access. In various countries pharmacists are allowed to prescribe HC, although conditions may be different. In Switzerland, HC require a prescription from a physician, although Swiss law allows pharmacists to dispense prescription-only medications in justified exceptional cases without a valid physician’s prescription. This study aimed to identify current dispensing practices for HC in Swiss pharmacies, pharmacists’ knowledge about HC, and their opinion and interest about expanding access to HC. Methods: Web-based survey among Swiss pharmacists. Results: This survey was completed by 397 registered pharmacists and 331 (83%) were included for analysis. The survey showed that 21% of respondents regularly dispense HC without prescription and that a high number of participants are either very interested (57%, n = 189) or rather interested (33%, n = 110) in extended pharmacy access to HC. The majority did not or rather not support physician’s prescription-only status (77%, n = 256) or OTC availability (94%, n = 310). Furthermore, surveyed pharmacists are willing to train for contraception services (90%, n = 299). According to participants, resistance of physicians is the most relevant barrier to this service (88%, n = 292). Conclusion: Surveyed pharmacists are interested in extended access to HC.

CJEU Citations in the Case Law of the Swiss Federal Supreme Court

This chapter addresses the issue of when, why, and to what effect the Swiss Federal Supreme Court (FSC) refers to the case law of the Court of Justice of the European Union (CJEU). After providing background information on the Swiss legal system and the relations between Switzerland and the EU, it presents the doctrines of ‘euro-compatible’ interpretation developed by the FSC. Based on a comprehensive analysis of published FSC decisions, it then examines the frequency of references to the CJEU, their legal rationale, and their impact. The article finds that citations of the CJEU in Swiss case law are much more frequent and cogent than in the other third states covered by the present book. This, it is argued, is due to the far-reaching Europeanization of Swiss law. Indeed, while cultural factors may influence the decision to cite CJEU precedents in individual cases, the degree and type of Europeanization in each legal field predict the frequency and cogency of such citations. Thus, in the Swiss case, it may be misleading to speak of the ‘influence of the CJEU’. More than inter-judicial dynamics, it is Swiss judges’ everyday office of applying the law that leads them to consider CJEU precedent.