意思主义模式下不动产一物二卖的理论与实务——以意大利民法为观察样本

尽管意大利民法仍然坚持物权变动的意思主义原则,理论与司法实务在解释和适用《民法典》第2644条确立的"登记优先"规则时,却间接地承认至少在不动产一物二卖的情形下,不动产物权的变动适用登记生效规则,这也为后续一系列违约责任、损害赔偿等问题的展开确立了逻辑起点。而在对第一受让人的救济方面,意大利民法则走得更远:通过出让人的合同责任、第二受让人的侵权责任、损害赔偿的"原物返还"方式以及第一受让人的撤销之诉一环扣一环地展示出让人与第二受让人的主观状态与损害赔偿责任之间的关系。此外,意大利民法灵活务实的规则、完善的救济手段都具有启示性且引人深思。     

Employee Rights on Transfer of Undertakings: Italian Legislation and EC Law

Abstract:  The authors examine the conformity with Community law of the recent regulatory changes introduced to the Italian legal system regarding the safeguarding of employees' rights during transfers of undertakings. The investigation takes place on the assumption that the principle of primacy of Community law applies, which first and foremost means that it must be verified whether the domestic legislation in question complies with the interpretation given to the relative provisions of Community law. According to the authors' opinion, domestic law could be judged as non-conforming to the interpretation that has been given by the Court of Justice, so that the question may be brought before the Court of Justice ex Article 226 EC or by recourse to the preliminary ruling procedure under Article 234 EC, which reveal cases of incorrect implementation of the Directive.     

Bite the Bullet

This paper discusses the Fedon case‐law of the European Court of Justice (Court of Justice), which involved a claim for compensation by Fedon (an Italian producer of eyeglass cases) from the EU for the imposition of World Trade Organization (WTO)‐authorised retaliatory trade barriers by the USA following the failure by the EU to comply with an adverse ruling by the WTO regarding its import regime for bananas. As a result of the EU non‐compliance, European banana distributors and some bananas producers benefited from WTO‐illegal protection, at the expense of a set of EU exporters, including Fedon, that were hit by US countermeasures. Fedon contested the non‐compliance by the EU before the Court of Justice and sought compensation. This paper assesses the ruling of the Court of Justice against Fedon and argues that the Court got it wrong, both in terms of legal principle and as a matter of legal technicalities.     

Prohibition of Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment: Some Remarks on the Operative Solutions at the European Level and their Effects on the Member States. The Case of Italy

This paper analyzes European measures against torture and inhuman or degrading treatment or punishment in order to verify their effectiveness, especially in terms of the values that are actually being protected. First, it examines the distinction between the external and internal action of the European Union, highlighting ways in which the EU appears to be more attentive to combat practices of torture in third countries than to domestic incidents and the proposals to legalize torture made at a political level in some Member States. Then, it examines the European Court of Human Rights’ ruling in the Cestaro versus Italy case, focusing specifically on the fact that Italy was in breach of its obligations under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the framework does not recognize torture as a crime and does not provide instruments of deterrence to effectively prevent the execution and the recurrence of such acts. Currently, the Italian Parliament is discussing a draft amendment to the Criminal Code and aims at introducing the concept of torture as a crime; however, in light of the comments made by the European Court of Human Rights, this project questions whether the proposed solution will be able to prevent a repeat of events similar to those that occurred in 2001 after the G8 Summit in Genoa.     

End-of-life decisions in Italy: an overview of the current situation

This contribution analyzes end-of-life decisions in Italy. Its aim is to report the complex situation in end-of-life decisions. The scientific work applies an interdisciplinary approach by taking into consideration the position of the medical and biomedical communities. In addition, it examines the perspective of the jurisprudence and of the parliament. The investigation of all these parties is fundamental since Italy is one of the few Western European countries that does not have an ad hoc law ruling advance directives. After a complete and comprehensive study of the standpoint taken by the medical and biomedical communities, in addition to the position taken by the Italian law-maker, this contribution underlines the significance of the role of the jurisprudence. In the conclusions, the author underlines the significance of a specific law governing advance directives since it will end the contrasts between these different communities in addition to provide legal certainty.     

未成年子女利益之保护:意大利法的经验与借鉴

意大利是深受罗马法家父权传统影响的国家,未成年子女一直处于弱势的法律地位。经过理论界若干年的讨论与酝酿,1975年意大利修订了民法典中关于家庭法的部分。非婚生子女与婚生子女的法律地位实现了有限平等化。承认父母子女的利益是各自独立的,而且在存在利益冲突的情况下,诸多的司法判决都认可子女的意愿优先。监护权的行使,受到公权力的监督,无论是剥夺父母的监护权,还是临时性的收养,在监护障碍消除之后,往往还是鼓励孩子回归其原来的家庭。在保护未成年子女利益上,司法积极介入家事特别是父母与子女之间的关系,这点对深受传统思想影响的中国家庭尤其具有借鉴意义。     

我国“案例公布制度”的实证考察及其启示

自1985年起,最高人民法院采用《公报》的形式定期向国内外公开发布典型案例,以为下级法院在审判同类案件时"提供范例"。但"案例公布制度"并没有很好地实现指导全国各级人民法院的审判工作,统一法律适用标准的初衷。目前司法实践中还存在着同案差异性审判、同案的重复性审判、案件的机械性裁判和地方法院各自统一法律适用标准等现象,这些现象的出现主要是由于"案例公布制度"自身存在的诸多制度性缺陷所致,因而需要在制度层面予以完善。     

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.     

Listening to children: Participation rights of minors in Italy and the United States

This article compares laws and policies in Italy and the US regarding children's right to be heard and to engage in the life of the community. Italy has adopted a strong children's rights perspective, informed by the principles of the Convention on the Rights of the Child (CRC). The US, with its pre-modern constitution and resistance to international law, has been slow to recognise children's rights to voice and agency. The US Supreme Court has extended some due process rights to children in criminal court proceedings, but the US lags far behind Italy in recognition of children's rights to participate in civic life and collective decision-making. Child well-being rankings may reflect these differences in attitudes towards children's rights. Italy ranks significantly higher than the US on objective measures of child well-being and Italian children report superior peer and family relationships.     

清末民事诉讼法的演进

八国联军侵华后,统治阶层意识到以旧有方式延续其统治成为不可能,遂推动例律的修订。此外,西方国家在华享有的领事裁判权,一方面维护了本国国民的利益,另一方面也使华人了解到文明国家的先进诉讼法制。英美日三国与清政府约定以修律换取其领事裁判权的废除,成为修律的直接动机。沈家本等修律大臣先后奏进《刑事民事诉讼法草案》、《民事诉讼律草案》,两份草案各有特色,其中《刑事民事诉讼法草案》尤其特别,兼具英美国家的诉讼特点,而《民事诉讼律草案》则具有浓厚的日本民事诉讼法色彩。     

大陆法系勘验协助义务之演化及其启示

对于当事人或第三人是否负有勘验协助义务的问题,德国《民事诉讼法》及日本旧《民事诉讼法》均未规定。日本新《民事诉讼法》第233条第1款已经规定准用第223条关于文书的规定,当事人或第三人均有依法院的命令提出勘验物或容忍勘验的义务。我国台湾地区修法后,其＂民事诉讼法＂第367条已经增列第344条及第348条准用的规定,明示当事人和第三人均负有提出勘验物或容忍勘验的义务,以杜争议。但是,祖国大陆现行立法并未规定鉴定或勘验协助义务,因此确有必要引入鉴定、勘验协助义务以便法院遇有不协助鉴定、勘验时依据证明妨碍原理认定事实。     

With the fourth sentence of the First Chamber on wrongful birth: is it possible to start talking about "jurisprudence"?]

Chamber number 1 of the Spanish Supreme Court of Justice has announced its fourth wrongful birth case decision dated December 18, 2003. The issue is whether we can state that with these four rulings there is a genuine law of precedent, that is, reiterated doctrine of the Supreme Court of Justice on this matter (Article 1.6 of the Civil Code).     

THE SUPREME COURTS POST-MIRANDA RULINGS: Impact on Local Prosecutors

Beginning in 1971, the Burger Court issued a series of rulings which chipped away at the Miranda v. Arizona ruling. This article analyzes the impact of this series of rulings on prosecuting attorneys from countries with a population of 100,000 or more. The results indicate that prosecutors perceive that the Court has changed the degree with which police must comply with Miranda and that prosecutors approve of this, but that prosecutors are not more likely to prosecute in cases where police committed alleged violations than they had been before 1971. This seems due to the fact that prosecutors take their cues more from local courts, which reportedly requires strict compliance with Miranda, than from the Supreme Court.     

Social Insurance Monopolies in Community Competition Law and the Italian Constitution: 'Practical' Convergences and 'Theoretical' Conflicts

An Italian judge, following earlier suggestions of the national antitrust Authority, has referred to the Court of Justice for a preliminary ruling under Article 234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC Treaty. With those questions, raised in an action brought by a self‐employee against the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) concerning the actor's refusal to pay for social insurance contributions, the Tribunale di Vicenza has in summary asked the Court of Justice whether the public entity concerned, managing a general scheme for the social insurance of accidents at work and professional diseases, can be qualified as an enterprise under Article 81 EC Treaty and, if so, whether its dominant position can be considered in contrast with EC competition rules. This article takes this preliminary reference as a starting point to consider in more general terms the complex constitutional issues raised by what Ge´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant risks of ‘constitutional collision’, between the ‘solidaristic’ principles enshrined in the Italian constitution and the fundamental market freedoms protected by the EC competition rules, which are implied by the questions raised in the preliminary reference. It considers first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about the limits Member States have in granting exclusive rights to social security institutions under EC competition rules. It then considers specularly, from the Italian constitutional law perspective, the most recent case law of the Italian Constitutional Court on the same issues. The ‘contextual’ reading of the ECJ's and the Italian Constitutional Court's case law with specific regard to the case referred to by the Tribunale di Vicenza leads to the conclusion that there will probably be a ‘practical convergence’in casu between the ‘European’ and the ‘national’ approach. Following the arguments put forward by the Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line also with a recent decision of the Italian Constitutional Court. And even when it was to be qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of abuse of dominant position and be allowed to retain its exclusive rights, pursuant to Article 86 of the EC Treaty. This ‘practical convergence’in casu does not, however, remove the latent ‘theoretical conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies. A risk of a ‘conflict’ of that kind could be obviously detrimental for the European integration process. The Italian Constitutional Court claims for herself the control over the fundamental principles of the national constitutional order, assigning them the role of ‘counter‐limits’ to the supremacy of European law and to European integration. At the same time, and more generally, the pervasive spill over of the EC market and competition law virtually into every area of national regulation runs the risk of undermining the social and democratic values enshrined in the national labour law traditions without compensating the potential de‐regulatory effects through measures of positive integration at the supranational level. This also may contribute to undermine and threaten, in the long run, the (already weak) democratic legitimacy of the European integration process. The search for a more suitable and less elusive and unilateral balance between social rights and economic freedoms at the supranational level should therefore become one of the most relevant tasks of what Joseph Weiler has called the ‘European neo‐constitutionalism’. In this perspective, the article, always looking at the specific questions referred to the Court of Justice by the Tribunale di Vicenza, deals with the issue of the ‘rebalance’ between social rights and economic and market freedoms along three distinct but connected lines of reasoning. The first has to do with the need of a more open and respectful dialogue between the ECJ and the national constitutional courts. The second is linked to the ongoing discussion about the ‘constitutionalization’ of the fundamental social rights at the EC level. The third finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.     

Cave Jurisdictionem – Recent Cases on Family Law and Conflicts in Australia

This article examines some recent decisions of the Family Court of Australia as they relate to matters of private international law in family law matters. Although the notion of forum non conveniens is considered, a major focus remains on the approach of the jurisdiction to the Hague Convention on Civil Aspects of International Child Abduction. In the various issues which have appeared before it, the Family Court of Australia has demonstrated a degree of confusion which suggests that other jurisdictions should be cautious in their dealings with Australia in the areas which the article discusses.Professor of Law, University of Newcastle (NSW).     

民事诉讼法典修改后的“新证据”——《审监解释》对“新证据”界定的可能意义

有足以推翻原裁判的新证据是我国《民事诉讼法》规定的启动再审程序的事由之一。最高人民法院在《审监解释》中对新证据作出了新的界定,根据新确立的标准,只要是原审中提出的能够推翻原裁判的证据,就可以进入新证据的行列,即便当事人在原审中因逾期举证且存在过错已被失权。新的标准实际上已悄悄地改变了《证据规定》确立的新证据的构成要件。鉴于再审是最后的审判,再审中新证据的标准会对法官在一审和二审程序中如何把握新证据产生重大的影响,实行这一标准将会使对新证据的解读回到民事诉讼法。《举证期限通知》对新证据做了不同的界定,相比之下,《审监解释》中的界定是一种更优的选择。     

论清偿抵充

2009年出台的最高人民法院《关于适用〈中华人民共和国合同法〉若干问题的解释(二)》首次规定了清偿抵充制度。然而,基于司法救急的原因,《合同法司法解释二》没有规定指定抵充。我国民法典应当按照《德国民法典》的债务人指定模式对指定抵充进行规定,同时,应当在《合同法司法解释二》相关规定的基础上,借鉴大陆法系国家和地区民法典关于清偿抵充的立法经验,进一步完善法定抵充制度。     

都市社会语境下法治认同模式的构想

城镇化进程的全面启动与依法治国战略的全面推进使得都市社会中的法治认同成为一个重要论题。一方面,都市社会的发展消解了传统法治认同模式赖以存立的共同体,另一方面都市化的进程又塑造了一种新型的社会关系并具有独特的精神气质,进而构成了一种新型的共同体——媒介型共同体。媒介型共同体以异质性的不断生成为其正当性基础,以多重空间分配与构造为其基本特征,并且超越传统的依托于民族国家的共同体模式,形成了一种依托于都市和全球的新型共同体。都市社会中的法治认同要求利他主义的都市法律主体,立基于"都市—全球"的互动结构,以空间分配促进都市法律主体对于都市法治的认同,最终指向都市法治的实现。     

Hard Times for Hard Bans: Fixed‐Term Work and So‐Called Non‐Regression Clauses in the Era of Flexicurity

This paper deals with the issue of non‐regression clauses, which, despite a twenty‐year history, has been addressed by domestic and European case law only recently, and only with regard to the field of flexible employment. This essay argues that the Court of Justice case law on non‐regression clauses (the Mangold and Angelidaki rulings) leads to a weakening of these instruments, rendering them ineffective. This ineffectiveness is due to the controversial idea of Fixed‐Term Work in the era of flexicurity, and to the difficult justiciability of the particular clause in itself, as demonstrated by the most recent Court of Justice's ruling, Sorge. In addition, this essay provides an explanation of the difficult enforcement of non‐regression clauses, in light of the new course of European employment policies.