The Pregnant Man and Criminal Law. Towards Generating a New European Approach

Criminal Law Forum - This article aims at promoting a new approach regarding criminal law and crimes that include a provision that relates to pregnancy. We thus try to set a starting point for...     

Towards a European educational area

When negotiating the new educational programmes the Council and the Commission of the EC had to deal with a profound controversy as to whether or not the programmes should aim for the creation of a European educational area. This reflects the question of whether the Community can work towards some sort of unification of the different educational systems of the Member States. As the Treaty of the European Community prohibits any harmonisation in this field the European institutions can only work towards a growing closer of the different systems by encouraging the Member States and the educational and training institutions to go this way. Such an outcome can be fostered by the legal framework protecting the individual rights of non discrimination and of free movement of workers and of services as well as of establishment on the one side and by indirectly effective and not binding measures on the other side. This influence can be achieved by the European education programmes, the common efforts to face the challenges of the knowledge society and the global competition, the incentives to ameliorate the quality of education and training and to improve the individual employability. However, harmonisation will mean losing the richness of European diversity. Instead of unifying the systems transparency and mutual recognition of individual qualifications could lead to the desired European dimension without endangering the cultural backgrounds and the responsibility of the Member States for education and training. This revised version was published online in July 2006 with corrections to the Cover Date.     

Towards a European Code Napoléon/ABGB/BGB? Recent EC Activities for a European Contract Law

Abstract:  Contract law issues on European or international level have been studied for several decades in academic circles. Contract law issues and other questions affecting European private law have already been regulated in the past on EC level, especially in the framework of several consumer protection directives. The European Contract Law project initiated by the European Commission received new impetus with the Commission's Green Paper of 2004. Emphasis is laid on developing a 'common frame of reference' (CFR) which shall be ready by 2009. A so-called 'optional instrument' and standard terms of contract are also looked at. The article explains the reasons behind these activities, describes the work currently under way, and points to a series of open questions of a legal or political nature.     

论环境法上的强制缔约

环境法上的强制缔约重构了“政府——环境服务商——企业”的三元型环境行政管制框架.现行立法例中船舶污染清除协议、可再生能源强制并网收购协议、强制交售报废机动车协议等制度设定与执行需注意法律正当性问题.强制缔约制度移植的重心不在于“强制”,而在于将“缔约”或“合同”作为一种私法工具,以“自治”达到“管制”的目标.建议以倡导性规范或选择性规范将“环保商事合同”嵌入到《环境保护法》中,对相关条款进行修改;强制缔约可作为环境污染第三方治理的实施机制.     

公法契约的可能性

私法中所谓"意思自治"和"契约自由原则"一般得到认可,只要不违反公序良俗以及与公共秩序相关的所谓强行规定,当事者可以自由地缔结任何契约.与此相反,公法关系一般由国家立法来规定,同时与私法中原则上是任意规定不同,这些规定是与公益相关的强行规定,任何人不得以意志自由作出与之相反的决定.公法关系正好与私法关系相反,契约不自由是原则,只有在法律特别规定的时候,才能用当事者的契约来规定公法关系,这是通说.但是,如果严格贯彻此理论的话,即没有法律的明文规定公法契约就不得有效成立,那么就与实际要求发生深刻的矛盾,这样种种缓和的理论就产生了.现在我想通过批判二、三种典型的见解来考察私法契约与公法契约间是否存在根本的对立,公法契约在怎样的限度内是可能的.     

Towards European sentencing standards

Chairman, Sentencing Committee, 1989–1992.     

The European Redistributive State and a European Law of Struggle

Its more central involvement in the government of economic and fiscal policy requires a new public law for the EU. This must be alive to the positive, negative and intractable qualities of conflicts associated with these fields. Such a law would internalise conflicts within the political process so that their irresolution and ongoing struggle become the dynamo endowing the Union with qualities of political engagement, imagination and justice. The recent reforms make mediation of conflicts a central mission of the Union but still use the public law structures of the regulatory state which lack these three qualities.     

Towards Law and Music

Through a review of Sara Ramshaw’s, Justice as Improvisation, the essay evaluates recent scholarly directions in the interdisciplinary field of law and music. The essay considers both methodological and epistemological questions motivating this scholarship, and argues that there yet remains the opportunity to pursue with even greater specificity the meaning of music, in terms of its own vocabulary and genre. The new field of law and music is slowly but surely combining these formal considerations with an ever richer vocabulary, and a richer inter-disciplinary dialogue not just about jazz but with it. What might have been a somewhat sterile exercise in virtuosity is turning into a fully-fledged interdisciplinary claim, with its own methodology and its own epistemology, capable of illuminating not just law or music, but both in light of the other.     

政府采购合同的行政法研究

政府采购合同是政府采购活动的重要组成部分，其本质是通过合同实现政府意志和社会公共利益。我国《政府采购法》将政府采购合同定位为民事合同，然而微观分析这一定位，其本质属性明显有别于民事合同，政府采购合同应属行政合同。     

Jurisdiction for Consumer Contracts: European Union: Modified Rules of Jurisdiction for Electronic Consumer Contracts

The Brussels Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters (the Brussels Convention) is to be replaced in 2002 by a Community Instrument: The Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Regulation).¹ The Regulation is an important measure approved by the European Union to simplify rules of jurisdiction and recognition of judgments for the benefit of the Internal Market. Amongst other matters, the Regulation updates existing jurisdiction rules for a consumer contracts. The rules for consumer contracts apply where a consumer and a business are domiciled in a Member State or the business has a:“branch, agency or other establishment” in a Member State. Importantly, the Regulation clarifies jurisdiction rules for consumer contracts conducted over the World Wide Web (WWW). These rules are to be welcomed, as they provide guidance on what rules of jurisdiction apply to consumer contracts over the Web, albeit that they are limited to where the parties are domiciled in Europe. This article outlines the rules of jurisdiction for consumer contracts provided by the Regulation, and where appropriate, highlights some aspects of the new rules that will possibly require further discussion and clarification by the European Court of Justice once the new rules are in force.     

The European Research Area: On the Way Towards a European Scientific Community?

Abstract:  The concept of a European Research Area was launched by the Commission in 2000 with the intention of becoming a watershed in European research policy. The aim was to create an 'internal market of research', in contrast with previous efforts in research policy that amounted to continued fragmentation. Lack of support from both Member States and the Council, together with the almost exclusive use of the Open Method of Coordination for the design of the Area, meant that the initially high ambitions were not met. The social repercussions of the project were also watered down as a consequence.     

论英美法上的单诺合同和双诺合同--兼与杨祯教授商榷

英美传统合同法理论以承诺的方式为标准,将合同分为“单诺合同”和“双诺合同”。这一分类被誉为“伟大的两分法”,是理解英美传统合同法的最佳路径。但由于存在着明显的缺陷,后被美国《统一商法典》和《第二次合同法重述》所放弃。近年来该分类及其相关理论在不少新型案件中得到频繁运用,大有再次繁荣之趋势。     

Jurisprudential Dilemmas of European Law

Making a first sketch of philosophical issues arising fromEuropean Community law I want to present a series ofmore or less obvious, and more or less interrelated dilemmas,or even double binds.(i) Deepening the community becomes incompatible withwidening membership. (ii) National states seem bothnecessary for and obstructive in articulating transnationalproblems. (iii) The more democracy is needed as a warrantfor the public exercise of political power in Europe, themore the very concept of democracy on a European scaleevades understanding. (iv) European unity presupposes aunifying rule of law, while member states have radicallydifferent conceptions of this principle. (v) Even the verycore of European integration, the common market, is subjectto two conflicting and, indeed, incompatible doctrines ofcompetition. In explaining the nature of each dilemma I willtry to take my cue from the Maastricht Treaty wherever thisseems suitable. Then I will elaborate on the jurisprudentialproblems involved in it. Finally, each section will be closedby an attempt to state the nature of these problems inphilosophical terms.