A Paradox in the Making: Detecting Something Positive in UPA Under the Ten Kate Effect

Abstract:  The European Court of Justice has persisted in adopting an unduly restrictive interpretation of Article 230(4) EC and that persistence has reached its apogee in the UPA decision, while at the same time it was mirrored in the relevant provisions of the draft Constitution. Therefore, it is surprising to see that in the aftermath of UPA , there can be something positive that can be explored further and that can be tested in order to establish whether any indirect, alas limited, liberalisation of the standing criteria is possible. The Ten Kate case established that, in principle, a Member State could be under an obligation under domestic law to challenge the validity of Community legislation. If the state, in all of its different manifestations, fails to challenge the validity of a Community measure when such an obligation arises under municipal law, then the citizen could be in a position to claim compensation. Therefore, the case introduces the doctrine of state liability and the agency analogy (with the state representing the individual or as parens patriae) as connected paths trying to circumvent the standing restrictions. The advantage is that the proceedings would take place under national law and would be detached from the Plaumann conditions. It is proposed that constitutionally entrenched human rights, like effective judicial protection, combined with the principle of legitimate expectation, could create the legal basis for an obligation of the state under national law to challenge the validity of Community norms. The paradox is that effective judicial protection was the exact argument that the European Court of Justice sidelined in UPA .     

Competing Supremacies and Clashing Institutional Rationalities: the Danish Supreme Court's Decision in the Ajos Case and the National Limits of Judicial Cooperation

On 6 December 2016, the Supreme Court of Denmark (SCDK) ruled on the grounds of Ajos case. The ruling concerned the scope of the principle of non‐discrimination on the grounds of age and whether a national court could weigh the principle of non‐discrimination on grounds of age against the principles of legal controversy, as the protection of legitimate expectations. The ruling has caused a great deal of controversy as the SCDK defied clear guidelines from the Court of Justice of the European Union (CJEU) in the ruling. Moreover, the case has been seen by some as an example of a new ‘sovereigntism’ in Danish law that is at odds with the project of European integration through law. This article explains the case from both an EU law and Danish constitutional law perspective. It concludes by providing a set of explanations of the new course of the SCDK in its relationship with the EU.     

The White & Carter Principle: A Restatement

This article reviews the English courts' approach to the controversial decision in White & Carter (Councils) Ltd v McGregor and suggests a systematic reformulation of the principle to be derived from that case. It argues that the notion of ‘legitimate interest’, at the core of that principle, suffers from severe obscurity as it stands. The critical issue in White & Carter is whether the wastefulness of a party's continuing performance outweighs its performance interest in earning the contract price. Three tests currently employed to determine the existence of a ‘legitimate interest’, namely, the adequacy of damages, the duty to mitigate and the concept of wholly unreasonable, are assessed and dismissed as either misdirecting or unsatisfactory in other ways. Finally, it articulates a new test based on a reappraisal of existing case law and summarises the key reasons for the courts to exercise their equitable jurisdiction against wasteful performance.     

解读刑事法治

刑事法治是法治的根本标志之一 ,而刑事法治就意味着以刑法限制国家的刑罚权 ,罪刑法定原则也就成为了刑事法治的必然首选。而我国传统的法律文化认为 ,刑法是阶级统治的工具 ,是无产阶级专政的“刀把子”。因此 ,要把我国建设成为一个现代的社会主义的法治国家 ,除了健全法律制度之外 ,更重要的是 ,我们必须更新观念 ,正确认识刑法的功能 :刑法不仅保护国家的利益、维护社会的稳定 ,也保护公民个人的合法权益。刑法是人权保障的“大宪章”。     

The European Union and Penal Law

Technically-speaking, penal law remains outside the competence of the European Communities and Union. However, mirroring other legal developments within Europe, a combination of higher Community 'principles' such as proportionality, non-discrimination, free competition and loyal co-operation, together with secondary Community law, has on the one hand, led to an unforeseen process of the harmonisation of national penal systems; with national norms either being set aside by Community law, or given extended scope in the pursuance of EC/EU goals. On the other hand, certain European interests – most notably, the need to safeguard the European Union budget – have proven strong enough to prompt the evolution of a nascent penal law of the EU; the most noteworthy development here being the drawing up of an independent European 'corpus juris' covering penal policy and procedure in the area of EU budget protection.     

论社会弱势群体的法律保护

弱势群体已成为当今社会的主要问题,保护弱势群体的权利是法律不可推卸的责任,在法律的各个环节都必须树立人权观念,坚持公平正义的法律价值观,解除社会危机的隐患,建立和谐、秩序的社会。     

Justins v The Queen: assisted suicide, juries and the discretion to prosecute

Juries are often a crucial protection for citizens against unjust or highly controversial laws. The decision whether to proceed with a prosecution rests on the discretionary powers of prosecutors. In cases where the community is deeply divided over right and wrong, it appears that there is, at times, a transference from the public of thwarted law reform aspirations which can create difficult tensions and expectations. This case commentary considers an appeal by Shirley Justins following her conviction for manslaughter by gross criminal negligence as a result of her involvement in the mercy killing of her partner, Mr Graeme Wylie. The morally unsettled nature of the charges brought against her, her own initial plea, the directions given to the jury by the trial judge and even the basis of her appeal resulted in a convoluted and complicated legal case. Spigelman CJ and Johnson J ordered a new trial, Spigelman CJ stating that it was open for a new jury to consider (a) if Mr Wylie lacked capacity; and (b) whether there was criminal involvement by one person in another's death. Simpson J found that further prosecution on the count of manslaughter would amount to an abuse of process and that an acquittal should be entered. This case highlights how fundamentally unsettled are the publicly much debated and persistently contentious issues of euthanasia, assisted suicide, the right of a person to die a dignified death and the way their capacity in that respect should be assessed. It perhaps asks us to reconsider the role of juries and the exercise of discretion by Directors of Public Prosecutions in areas of law where the community and law-makers are deeply and intractably divided.     

When it pays to be insane: three unusual legacies of insanity

Although the law generally does not permit an individual to profit by his own wrongdoing, that equitable principle may be inapplicable in the case of an individual who has been adjudicated insane (and therefore has not committed a wrong in the eyes of the law). This paper discusses three unusual legacies of a determination of insanity: the inheritance cases (permitting the insane killer to inherit from his own victim), the life insurance cases (permitting the beneficiary to recover when the insured commits suicide while insane), and the effect of insanity on publication rights agreements in sensational criminal cases.     

行政法上正当期待形成的法理基础

起源于英国行政法的正当期待原则,具有赋予相对人正当期待权利以抵御行政权恣意行事之功能。弄清行政法上正当期待的概念及产生途径,透视正当期待形成所需的信任关系和法律安定性原则这两个法理基础,就可以看出,信任关系是行政法上正当期待形成的深厚的精神基础和利益保障;而法律安定性原则则是行政法上正当期待形成的法律保障。     

夫妻一方对他方自杀而“见死不救”之刑事责任新探——从“宋福祥故意杀人案”之判决理由谈起

"罪刑法定原则"与"罪刑相适应原则"已经成为我国刑法的基本原则。"宋福祥故意杀人案"之判决理由欠缺合理性与合法性,夫妻一方对他方自杀而"见死不救"的不应当承担刑事责任。在刑事审判中,法官应"以事实为根据,以法律为准绳",以作出正当的个案裁判为己任,在审判中真正做到符合"罪刑法定原则"与"罪刑相适应原则",才能切实保障公民的合法权益,维护社会的和谐稳定,也才能真正实现依法治国。     

社会危害性理论之辨正

长期以来，社会危害性理论在我国刑法学中处于中心地位，并在司法实践中发挥着重要作用。但是，随着罪刑法定原则在新刑法中的刑事立法化，社会危害性理论的地位受到了质疑。作者认为，我国刑法中的犯罪概念正是因为规定了社会危害性理论才更显其合理性；社会危害性理论不但不与罪刑法定原则相冲突，反而体现出与罪刑法定相一致的价值立场。主张继续以社会危害性为中心的我国刑法理论是可行的，也是必要的。     

社会危害性理论——一个反思性检讨

社会危害性理论是我国刑法中的传统理论。本文基于刑事法治的理念 ,理性地审视社会危害性理论 ,认为在注释刑法学中应当坚守形式理性 ,否定社会危害性理论。只有这样才能使罪刑法定原则真正得以实现。     

Dignity or discrimination: what paves the road towards equal recognition of same-sex couples in the European Union?

Abstract

The article analyses possibilities for the Court of Justice of the EU to go beyond its current narrow approach towards same-sex couples’ rights within the EU non-discrimination law framework, considering a comparative treatment of dignity-based arguments. It critically reviews the CJEU’s current approach exclusively focusing on direct discrimination and the comparator paradigm. By doing so, the Court has tolerated a situation of de facto discrimination and limited advancement of same-sex rights. The question is then whether the situation could be overcome if the CJEU would follow other courts and develop reasoning based on dignity to underpin the EU non-discrimination analysis with substantive meaning. The article rejects this proposition. Dignity is not suitable because it is both too wide and to narrow to ensure certainty and substantive protection within EU non-discrimination law. While the concept of dignity protects a minimum standard and can provide a floor of rights, non-discrimination law fosters equality by imposing procedural standards and challenging measures that effect groups differently. The concepts should thus not be conflated. Instead, a consistent application of the concepts of direct and indirect discrimination seems more promising.     

A Commentary on the New Zealand Supreme Court Rules

This article critically assesses how some public law principles, including the doctrine of legitimate expectations, are applied in the Commonwealth Caribbean. It proceeds to discuss the impact of international law on public law and to note that, through the implementation of unincorporated treaties into domestic law, the principle of dualism is increasingly losing its significance and protective effect. The consequence of this is that Governments will continue to want more opt outs and will be more cautious about signing treaties which they are not ready to implement.     

论行政诉讼受案范围之重构

我国行政诉讼法受案范围过于狭窄,限制了对行政相对人合法权益的保护,也使对行政主体的司法审查在很大范围上受到了限制。正确界定行政诉讼的范围,应当从行政诉讼目的出发,从我国立法对受案范围的规定入手,提出宪法所规定的公民的基本权利(除某些特殊权利)、抽象行政行为、内部行政行为、准行政行为、侵犯公益性质行政行为等的可诉性等问题加以重点研究,以期在今后完善我国行政诉讼立法时,更加合理科学地界定行政诉讼的受案范围。     

刑事自由裁量权与刑法基本原则关系研究

刑法基本原则不但是制定、解释和适用刑法的准则,而且体现了刑法的基本精神。刑事自由裁量权是刑法适用过程中普遍存在的一种权力。罪刑法定原则并不排斥刑事自由裁量权,罪刑法定原则认可以严格规则为主、以自由裁量为补充的立法模式。自由裁量权对适用刑法人人平等原则有一定的冲击,所谓的适用刑法人人平等实际上是包括了自由裁量因素在内的相对意义的人人平等。罪责刑相适应原则,在本质上确认法官的刑事自由裁量权,罪责刑相适应原则与法官的自由裁量权具相辅相成性。     

刑法学中的当然解释

一般来说,当然解释是法条的适用方法,但在刑法中,当然解释应当作为一种解释理由。举重以明轻,是就出罪、处罚轻而言;举轻以明重,是就入罪、处罚重而言。当然解释的依据是事物的本质与法条的旨趣。由于刑法并不禁止有利于被告人的类推解释,故在适用举重以明轻的原理得出有利于被告人的解释结论时,不需要刑法的明文规定,但不能将刑法的处罚漏洞作为举重以明轻的根据。罪刑法定原则禁止不利于被告人的类推解释,故在适用举轻以明重的原理得出不利于被告人的解释结论后,还要求案件事实符合刑法规范,但是,不能将对案件事实的缩小评价当作对刑法规范的类推解释。     

论《精神卫生法》的自愿原则

为了防止正常人"被精神病",更好地保护精神障碍患者的合法权益,《精神卫生法》确立了自愿原则。该原则渊源于私法领域的自愿原则而又与其不同,是在知情的条件下对精神卫生服务的单方接受自愿。它回应了要像人一样保护精神障碍患者,彰显了精神卫生法的福利法本质。它包涵自愿诊断、自愿治疗和自愿出院三个既相互区别又相互联系子原则。非自愿诊断、非自愿治疗、非自愿继续住院治疗只是自愿原则的补充,此种例外旨在寻求患者精神健康权与社会公众安全保护的平衡。     

Data protection in Europe – Academics are taking a position

CLSR welcomes occasional comment pieces on issues of current importance in the law and technology field. The current debate on the Commission's proposal for a new data protection framework includes a plethora of very specific issues. As important as these may be, it should not be overlooked that the very principles of data protection are at stake at the moment. Given the lobby efforts to exclude large parts of today's data processing from the ambit of the proposed Regulation, to weaken the principle of informed consent, and to broaden the exceptions for “legitimate interests”, we want to stress that data protection in Europe needs to be strengthened, and that this can be achieved without threatening innovation and legitimate business models.     

论人权公约中的禁止歧视

禁止歧视是联合国人权公约的重要内容,反对歧视的斗争也是联合国人权活动的中心,人权法与人权理论必须认真对待歧视的问题。歧视的核心规定性是“不合理的和主观的区分”,在人权公约中,禁止歧视有双重属性,既是附属性的,又是独立的。禁止歧视的理论基础是平等,核心是获得法律平等保护的权利。平等权的法律保障有积极和消极两个方面,国家负有不歧视的义务并有义务采取积极行动使人们免于歧视。