Corporate governance: A review of the fundamental practices worldwide

This paper focused on the concept of corporate governance based on shareholders’ and stakeholders’ perspectives and the development of corporate governance around the world, including the UK, the US, and Australia. The OECD Principles of Corporate Governance were presented, including shareholders’ rights, the equitable treatment of shareholders, disclosure and stakeholders’ rights and transparency practices, and the responsibilities of board of directors. Numerous corporate collapses have highlighted the call for the management and directors of companies to be more accountable, and they have led governments and international organisations such as the OECD to be more active in establishing principles of corporate governance. It was concluded that the system of corporate governance has increased in different countries in relation to the nature of the economy, legal systems, and cultural norms

Theory and Practice of the European Convention on Human Rights

This edited book brings you a collection of current, critical issues regarding the theory and practice of the European Court of Human Rights. The book is divided into three parts: procedural concerns, principles and jurisprudence, and interaction with national legal systems. Each chapter was written by an expert, with each author coming from a distinct background. The authors all presented at the 2019 University of Leipzig’s & University of Dresden’s 1st International Summer School on the European Court of Human Rights, with only select presenters asked to contribute to this book. The book’s goal is to promote further research and discourse on the operation of the Court, a goal that will be continued in the second summer school in 2021. With contributions by Veronika Bilkova, Katharina Braun, Robert Frau, Hanaa Hakiki, Beti Hohler, Stefanie Lemke, Helga Molbaek-Steensig, Jacopo Roberti di Sarsina, Christiane Schmaltz, Barbara Sonczyk, Dominik Steiger, Edith Wagner and Alain Zysset.

Regspraak: Troosgeld is deel van ’n reghebbende se afsonderlike boedelbates en nie deel van die gemeenskaplike boedel nie – verpligte deling troos nie

Although a husband and wife married in community of property share by default, if not design, all their patrimonial assets in the common estate, the solatium or compensation received by an injured person as satisfaction for the unjustified injury to his or her personality rights is not supposed to form part of the common estate – simply because it happened to be received in the form of a patrimonial asset. It is meant to be private or separate and for the comfort of the injured only. The purpose of the compensation received as solatium is not to fill a vacuum left by the delict in the injured party’s assets, but to serve as the only mode of solace available to law to provide redress for the wrong. Other than the position where a patrimonial asset of the claimant had been damaged, eg by the negligent car accident caused by the respondent, and where the awarded damages neatly compensate the wronged party for the damage caused, thereby placing the total estate in the same position where it was before the intervening delict, the solatium paid to the injured for the non-patrimonial damages suffered by the delictual inroad on his/her personality rights is not supposed to redress a negative impact on the total estate of the wronged. The spouse of the injured party, even where they are married in community of property, would never have been able to lay claim to those personality traits or attributes of the other spouse. Personality rights, per definition, never form part of the assets of any patrimonial estate and should not be shared simply because the matrimonial property regime happens to be community of property. The legislature correctly stipulated in section 18(a) of the Matrimonial Property Act 88 of 1984: “Notwithstanding the fact that a spouse is married in community of property – (a) any amount recovered by him or her by way of damages, other than damages for patrimonial loss, by reason of a delict committed against him or her, does not fall into the joint estate but becomes his or her separate property” – emphasis added. This formulation echoes what has been the legal position for ages. Along those lines Hiemstra J in Potgieter v Potgieter correctly held that the amount awarded as contumelia to the injured husband for the harm done to his personality rights by the adultery of his wife and the third party, would not form part of the joint estate but would be his separate property. In so doing, the court precluded the adulteress from further sharing in the spoils of her doing. In the underlying decision by the majority of the supreme court of appeal, however, it was held that section 18(a) should be read to be limited: “The context of s 18 must be read in its entirety, and apparent therefrom is the plain language and words used. [This] … section highlights that delictual damages received by a spouse during the course of a marriage in community of property, which are nonpatrimonial in nature (s 18(a)); and damages for bodily injuries owing to the fault of one’s spouse in terms of s 18(b) must be excluded from the division of the joint estate on divorce” (par 9 – emphasis added). In this case a very significant amount was received by the lady for the non-patrimonial loss suffered by her more than four years before the marriage had been concluded. According to the reading-in exercise of the supreme court of appeal it was not received “during the course of the marriage” and not ringfenced. As a consequence, the court upheld the appeal of the erstwhile husband after a marriage of very short duration (barely two years). He consequently successfully laid claim to fifty per cent of the more than half a million paid as non-patrimonial compensation to his wife, more than four years before he married her in community of property and only after becoming aware of the significant amount of that compensation invested by her. This decision not only flies in the face of logic and the legal principles underlying South African common law; it is in conflict with the latest developments in comparable Continental legal systems sharing the same historical and societal foundations as the South African law. This judgment provides poor consolation and it leaves a deeply imbedded discomfort, because the result is vehemently contrary to the outcome in comparable legal systems for a similar scenario. Dividing the solatium under the pretext of a division of the joint estate diminishes the solace intended for the injured.

Die kulturellen Grundlagen des Sozialstaats und ihre Bedeutung für die Verwirklichung des Verfassungsprinzips

While the Basic Law, in a departure from the Weimar Constitution, does not recognize any basic social rights, but only the welfare state principle, the opposite is true in South Korea. However, this difference loses significance at the level of interpretation, since the various basic social rights in South Korea are formed into a general welfare state principle. This paper attempts to compare the welfare state in South Korea and Germany. The reasons for the considerable differences that nevertheless exist between the two legal systems with respect to the welfare state are elaborated.

The international legal basis for implementation of judgments of the european court of human rights into the domestic legal system

An analysis of the international legal bases of implementation of decisions of the European Court of Human Rights to the national legislations of the member states of the Council of Europe is carried out. Such implementation takes various forms, and in general there is no single implementation mechanism. At the same time, the importance of implementing decisions of the European Court of Human Rights lies in the state's fulfillment of its obligations both to the world community of states and to its own citizens. Forms and methods that ensure the progressive development of national law, taking into account the practice of international courts, are considered. The synthetic research method determines the impact of ECtHR decisions on the structure of national law, which stimulates the transformation of its entire branches. It is demonstrated, how the ECtHR promotes the formation of progressive legal institutions in legal systems, exerting organizational and civilizational influence on the legal systems of states. It is emphasized, that the principle of legal certainty, by which the international court assesses vague and insufficiently clear provisions of national law, is fundamental for the implementation of the case law of the ECtHR into national laws. With this influence, the ECtHR determines the nature of lawmaking and law enforcement in a country. As a result, it is concluded, that the most effective mechanism for implementing the principle of legal certainty in a state is the adoption of general measures, contained in the pilot decisions of the ECtHR. The second important mechanism is the application of the rules of law by national courts, taking into account the case law of the ECtHR, which ensures the interpretation of human rights rules in a way that is most acceptable to the national legal system

Criminal protection of children's life and health: international experience

Through a documentary methodology, the article examines the characteristics of the criminal protection of the life and health of children in Ukraine and some other countries. The problem of determining the time of the beginning of the protection of a child's life and health, is analyzed in the light of the European experience. It is noted that in Ukraine it is necessary to recognize the right to live of the child at any stage of fetal development, to ensure the criminal protection of the child before birth. This approach is enshrined in several international legal acts, as well as confirmed by legal guarantees in the legal systems of many countries around the world. In addition, the article analyzes criminal law measures to guarantee the rights and interests of the child under modern Ukrainian law. The list of socially dangerous acts against minors is a result, so reinforced criminal liability is provided for considering the interests of minors. It has been concluded that in all post-Soviet countries the components of crimes against a person's health, considering the legislator's reaction to causing harm to the health of children during their commission, are clearly divided into three separate groups.

On some aspects of the interaction of international and national law

This article discusses the main aspects of the interaction of international and national law. Special attention is paid to the study of modern trends in the interaction of states in the international legal arena. This article examines the problems of reception, implementation, integration of the norms of law of international and national legal systems. The issues of adoption and reflection in the Constitution of the Russian Federation of generally recognized principles and norms of international law are touched upon. The forms of interaction of international and domestic norms of law, as well as their mutual influence, are considered.