关于大陆法系研究的几个问题

自从日本学者穗积陈重提出＂法族＂以及瑞士学者霍尔、美国学者威格摩尔提出＂法系＂的概念以来,对世界上各个法系的研究就逐步展开,尤其是英美法系和伊斯兰法系的研究,更是一直受到学术界的关注,也推出了一批成果。与此相比,对大陆法系的研究,可能因语言等的问题,成果相对比较少,对一些最基础的问题,研究也显得比较单薄。随着我国精通欧洲语言的法学人才的数量不断增加,对大陆法系的研究,也将成为我国法学研究中的一个重要领域。     

欧陆上市公司关联交易治理机制比较

上市公司关联交易治理重点因股权结构而异,英美等少数股权分散国家为管理层,包括我国在内的多数股权集中国家则为控制股东。鉴于控制股东所主导的关联交易具有利益冲突与经营效率的双重属性,欧陆国家的法律对其采取兴利除弊的治理策略。通过董事会和监事会审批机制确保决策效率,依靠司法任命特别检查人和派生诉讼机制维护少数股东权益,在公司集团中引入特别规则以提升公司价值,实现了公平与效率的动态平衡,值得我国借鉴。     

Medical treatment of dementia patients at the end of life: can the law accommodate the personal identity and welfare problems?

This article considers whether two significant philosophical objections to autonomy-based legal approaches to decision-making for incompetent individuals could be accommodated by the law. These philosophical objections are known as the personal identity and welfare problems. The article first sets out the autonomy-based approaches and their objections. Next, the present legal position is briefly canvassed in a comparative vein. Finally, the article suggests how the personal identity and welfare problems might be accommodated were legislators minded to do so, by proposing specific statutory amendments to the recent English legislation on advance decisions and evaluating their viability, particularly in light of the European Convention on Human Rights.     

Legal ‘Elasticity’ and ‘Sidestepping’ in European Crisis Management of Financial Markets

This paper explores the roles played by law in crisis management of financial markets and some possible consequences. Three questions are raised ‐‐about the ‘elastic’ use of law, about ‘sidestepping’ existing legal order by invention of new structures and about redistributive consequences. These questions are appraised empirically in relation to three areas of financial market law: public support given to banking from 2008 onwards; English case law concerning derivatives contracts when confronted with Lehman‐style insolvencies; and the European Stability Mechanism, which during summer 2015 was being primed in relation to Greece. On the first two case studies, law, having been mightily stretched, did not break. Likewise, legal sidestepping, as epitomised by the European Stability Mechanism, may result in a less coherent legal structure; however such incoherence may be not be fatal to the ensemble. On all three fronts, redistributive questions remain controversial, but controversy in itself does not undermine legal structures. A particular form of theory, the Legal Theory of Finance, is discussed in light of the case studies. Such theory may have an unfulfilled longing to discern law‐like regularities (ironically chasing economics).     

The Legal Position of the Married and Unmarried Father Under English and Dutch Law: Sharing Parenting or Just Going Dutch?

This article addresses the issue of the legal position of the married and unmarried father under English and Dutch law. The legal position under English Law in the UK for the married and unmarried father may be familiar to English family lawyers. The situation for unmarried fathers can be seen as more 'precarious' and less legally secure than that of the married father in terms of the legal recognition of fatherhood and the exercise of parental responsibility. Fathers who are not married to the mothers of their children are not recognised as 'fathers' in law in the same way as the married father. They will possess the automatic parental responsibility that the married father has, as a result of the implementation of new legislation which acts as a 'gateway' to the effective exercise, in legal terms, of 'fathering' activities. Whilst there have been some reforms, this are set in the context of problems and difficulties in regulating unmarried relationships in general. There is disparity in legal treatment between the married and the unmarried relationship, fatherhood in particular, but this distinction shows signs of diminishing, as it has done under Dutch law. In The Netherlands, as in a lot of other European countries, family law has been subject to continual law reforms, as a consequence of social developments. Also decisions of the European Court of Human Rights have forced the Dutch government to adapt legislation. Due to the equality principle, many benefits of marriage are now also granted to unmarried people. Since the extended law reform in 1998 the terms 'legitimate' and 'illegitimate' child – for children born inside and outside of marriage – no longer exist. Instead the term 'family ties' was introduced. This article will discuss the major issues which concern the legal position of the married and the unmarried father under English and Dutch law.     

The Value of ‘Integration’ in European Law—The Implications of the Förster Case on Legal Assessment of Integration Conditions for Third‐Country Nationals

The European Court of Justice's Förster judgment can lead to a reduction of legal uncertainty caused by integration requirements for third‐country nationals. The judgment has created a strong ‘assumption of integration’ after five years of legal residence because it equalised integration requirements for European students to access the welfare system of host Member States with a requirement of five years legal residence. Almost all pieces of European legal migration law also contain five‐year residence requirements after which the status of third‐country nationals improves. However, these improvements are mostly subjected to the fulfilment of additional integration requirements. To keep coherence with European law, courts will not be able to disregard the Förster‘assumption of integration’ when assessing the legality of integration conditions for third‐country nationals put in place in addition to residence requirements.     

Regulating Law Firms from the Inside: The Role of Compliance Officers for Legal Practice in England and Wales

Following the Legal Services Act 2007, which permitted the delivery of legal services through Alternative Business Structures (ABS), the Solicitors Regulation Authority required all regulated legal service firms to appoint Compliance Officers for Legal Practice (COLPs). COLPs are charged with taking reasonable steps to ensure that firms comply with their obligations, which entails interpreting what outcomes‐focused regulation (OFR) requires of the firm. Yet despite their importance, little is known about how compliance roles operate within legal service firms. We addressed this gap through a series of qualitative interviews that explored COLPs’ views of their roles, their attitudes to regulation, in particular to OFR, and to achieving compliance. We found that COLPs are a key regulatory mechanism in the context of firm‐based regulation and OFR and have a critical role to play in protecting and promoting professional values in both ABS and non‐ABS entities.     

民法总则的使命及其应规范之内涵——以中国民法总则草案为探讨中心

所有现代欧陆民法法典,不论是法国民法典、德国民法典,抑或是继承两民法典之法典以及参考两民法典之法典,均设有民法总则之规定。中国最近有制定民法总则的计划,并已提出建议稿,但此前已经有了9个单行之民法法律规范,构建了松散型的民法典体例,而民法总则属于一体型民法典之构成部分,这就需要对以往民法法律规范重新整合。结合中国民法总则草案建议稿,对民法总则应加以规范之内容,以及法律原则、权利能力和行为能力、法人、民事客体、法律事实、民事责任等具体规范加以分析探讨,以期为制定科学合理的民法总则提供参考。     

MEDICALLY ASSISTED HUMAN REPRODUCTIVE TECHNOLOGIES (ART) AND HUMAN RIGHTS — THE EUROPEAN PERSPECTIVE

The present article examines how the progress of science, and in particular, medically assisted human reproductive technologies (ART) have provoked a revolution in the sphere of family relations, generating a series of ethical and legal conflicts. The article focuses on the European perspective, without ignoring the international sphere, given the globalization of the phenomenon. The emerging legal issues are analyzed through the filter of international human rights, not only an important aspect to take into consideration in the context of bioethics in general, but a “passage obligé” given that certain concepts find their explanation and coordinates in international human rights law. It is from this perspective that the relationship between ART and human rights is presented. The applicable international and European legal instruments and principles shall be mentioned, as well as a brief comparison of national legal frameworks in Europe. The emerging bioethical and legal issues are examined in correlation with the response of the European Court of Human Rights through its case law aimed at balancing conflicting rights when faced with issues pertaining to ART. Lastly, the article presents in more detail the particular legal issues under debate in France and Italy, two European countries with specific legislation in the field.     

A review of tools to comply with the Fourth EU anti-money laundering directive

The aim of this paper is to present tools that are used by financial institutions to implement legal requirements with regard to anti-money laundering (AML) and combating the financing of terrorism (CFT). The fight against money laundering and terrorist financing is a two-stage procedure, where state authorities outsource a major part of their tasks and responsibilities to private entities. The bulk of the task falls to financial institutions, which have to monitor the transactions of their customers pursuant to international, European and national laws as well as internal policies. To comply with the legal requirements, they use sophisticated surveillance software and collect large amounts of personal data. The European Union introduced two Proposals (COM(2013) 45 final and COM(2013) 44 final) to update the European Union's AML/CFT regime. Even though the Proposals have not yet become legal acts, it is quite obvious that new tools to support financial institutions will emerge. The amendments foreseen by the Proposals as well as already existing tools, which will remain relevant, shall be examined and privacy considerations will be discussed.     

The Tide in Favour of Equality: Same-Sex Marriage in Canada and England and Wales

The tide in favour of legal equality for gay and lesbian individualsand couples continues to roll forward on both sides of the Atlantic.In Canada, the federal Parliament recently passed legislation(the Civil Marriage Act) (CMA) that extends the legal capacityto marry for civil purposes to same-sex couples throughout thecountry. This change in the law was driven not by the executiveand legislative branches of government but by the courts, interpretingand applying the Canadian Charter of Rights and Freedoms (theCharter). On the other side of the Atlantic, in England andWales, the Westminster Parliament in 2004 passed legislation(the Civil Partnership Act) (CPA) that will enable same-sexcouples to obtain legal recognition of their relationships,and to access most of the legal rights and responsibilitiesoffered to married couples. However, unlike the Canadian legislation,civil marriages between same-sex couples will still not be legallyrecognized. This article considers whether the English courtswill also facilitate the legal recognition of same-sex civilmarriage, like their Canadian counterparts. The author concludesthat, in light of recent case law, there is an increasinglystrong argument that the opposite-sex marriage requirement inEngland and Wales violates Article 14 (the equality provision)of the European Convention on Human Rights (ECHR), which isincorporated into UK law by the Human Rights Act, 1998. However,the author also concludes that there are a number of reasonsto be cautious that a positive result would flow, at this point,from a domestic court challenge to the opposite-sex marriagerequirement.     

The legal profession of China in a globalized world: innovations and new challenges

ABSTRACT

The legal profession is undergoing fundamental changes; and this is the case not just in established legal markets. Based on a state-of-the-art sketch, this paper identifies and analyzes the latest innovation initiatives and alternative business models in China’s legal profession. It finds that, propelled by market demands and benefiting from technological advancements, the provision of legal services has become highly versatile today, giving rise to various alternative service providers, especially the rapidly rising online legal service portals. Because they are technically not law firms, the exclusivity requirements on lawyer ownership and legal service provision are not applicable to them. In the meantime, the competition for large corporate clients and lucrative business transactions is fierce and will continue to be so, not only within the club of big Chinese corporate law firms, but also between Chinese law firms and international law firms globally. In this course, some leading big corporate law firms in China are observed to have creatively incorporated key corporate features in running their business and compensating their partners, effectively deviating from the partnership?+?pure legal services regulation. Such market realities question the necessity and effect of the regulatory restrictions on law firm legal form and ownership structure, and call for an agenda for related research in the future.     

The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration

The traditional partition between public and private law continues to reinforce the belief that public law is the only proper realm of political debate, where decisions having redistributional consequences are and should be taken. This allows for a seemingly minor role of private law in the debate on European integration. This article challenges such a traditional image by noticing the central role of private law in the several legal systems of the European Union, and by analysing a few instances of resistance to private law integration. The analysis suggests that, while fully engaged in debating the public law implications of integration, Member States strive to keep civil adjudication within their control and to protect the self–contained, autonomous structure of their codes (or sets of private law doctrines) from the disruptive impact of European legislation. Integrationist pressures compel national legal actors to make explicit the social and economic choices underlying private law rules. Against such pressures, States' resistance may take the shape of formalist entrenchment.     

Poland's legal integration into the European community: Some past,present, and future dilemmas

The paper contains some thoughts on the issue of the legal aspects of Poland's integration into the European Community (EC) against the background of Polish efforts to adapt its legal system to European Community requirements. The discussion is divided into three substantive parts: The first part deals with the issue of various legal traditions constituting the general phenomenon of EC law, with the second part spelling out legal aspects of the process of European integration, and finally the paper will be presented by way of a more concrete discussion — e.g., human rights, criminal law in general, and computer crime specifically.     

论一般法律原则在共同体司法实践中的运用

国际法适用于欧洲共同体 ,共同体法律体系中的一般法律原则基本上包括国际法的一般原则。在共同体中 ,一般法律原则的适用已是成员国的共识。共同体法意义上的一般法律原则既内在于共同体法的秩序里 ,也存在于成员国各法律体系之中。本文试图通过若干案例 ,说明一般法律原则在共同体司法实践中的运用。     

Thomas Craig,Sir Martin Wright,and Sir William Blackstone: The English Discovery of Feudalism

F.W. Maitland claimed that Sir Martin Wright propagated among English lawyers the view that English law had a feudal origin and was part of a European family of law and that Wright's opinions were popularized by Blackstone. This article demonstrates that Wright's opinions on feudal law, its history, and its impact on English law owed a considerable amount to the Scottish author Thomas Craig, who, through Wright, Blackstone, and others, as well as independently, had a significant impact on English lawyers’ understanding of their legal history and in overturning theories of the ‘immemorial’ nature of the common law. The infusion of Craig's European learning on feudalism into discussion of English law helped English legal history to develop.     

Implications of the Human Rights Act (1998) for schools

The Human Rights Act 1998 finally came into operation on 2 October 2000 for all jurisdictions of the United Kingdom. The Act, which incorporates the European Convention on Human Rights into the UKs domestic laws, means that it will be unlawful for public authorities, which includes the DfEE and LEAs, to act in a way which is incompatible with the fundamental human rights set out in the Convention (found in Schedule 1 to the HRA). Bodies such as schools and their governing bodies, whose functions are of a public nature, are also covered by the legislation. The articles of the Act which have a particular relevance for schools and education are identified. It is probable that pupils and their legal advisers will invoke the Act in disputes over a wide range of educational issues, for example, bullying, exclusions and suspensions. Some of these issues are examined and where possible existing European human rights case law is cited. It is likely that the HRA will create interesting legal challenges involving schools and education, some of which cannot be anticipated at the moment, and that the Act will cause changes to education laws and schools regulatory procedures .     

Personal Data and the GDPR: Providing a Competitive Advantage for U.S. Companies

The European Union's General Data Protection Regulation (GDPR) became applicable in May 2018. Due to the GDPR's extraterritorial scope, which could result in massive fines for U.S. companies, comparative data privacy law is of great current interest. In June 2018, California passed its own Consumer Privacy Act, echoing some of the provisions of the GDPR. Despite the many articles comparing the two schemes of law, little attention has been given to the foundation of these laws, that is, what exactly encompasses the data referred to by these laws? By understanding how the term “personal data” or “personal information” is defined in both jurisdictions, and why these definitions and the treatment of protected data are so different, companies can strategize to take advantage of these developments in the European Union. After explaining the differences in how data is treated in the United States and the European Union by exploring the definitions, regulations, and court cases, we will explore the five legal strategy pathways that companies might pursue with respect to the legal aspects of data transfer and privacy law compliance. While these strategies range from ignoring the law to adopting the European model worldwide, this analysis of legal strategy reveals a means for companies to gain a competitive advantage through their adoption of a worldwide compliance scheme.     

“法律不知有害”质疑

我国大多数学者认为对事实的不知无害,对法律的不知有害,因而实务中对法律错误一般不予以救济。但事实上,不管是在罗马法上,还是在当代的大陆法系和英美法系,大部分国家都会对部分法律错误予以救济。而在确定何种法律错误可予以救济时,应充分考量在特定情况下对表意人"知法推定"的合理性以及表意人与第三人之间的利益衡量。