§§ 38 f UGB: Unternehmenserwerb de lege lata et ferenda

Zu den bedeutendsten Neuerungen durch das Handelsrechts-?nderungsgesetz, BGBl I 2005/120, z?hlen die §§ 38 f UGB, nach denen der Erwerber eines Unternehmens vorbehaltlich abweichender Vereinbarung mit dem Ver?u?erer die bestehenden unternehmensbezogenen Rechtsverh?ltnisse übernimmt. Dadurch sollen vor allem Schuld- und Vertragsübernahmen im Zuge von Unternehmensübertragungen erleichtert werden. Im übrigen sind Reichweite und Wirkungsweise der Neuregelung unklar. Als Eckpunkte lassen sich die Behandlung der unternehmensbezogenen Rechtsverh?ltnisse des Ver?u?erers als Unternehmenszubeh?r und die Ersetzung der bürgerlich-rechtlichen Zustimmungsrechte Dritter durch nachtr?gliche Widerspruchsrechte identifizieren. Damit erleichtern die §§ 38 f UGB eine stichtagsbezogene Verfügung beim so genannten asset deal.     

Degradation of biomolecules in artificially and naturally aged teeth: implications for age estimation based on aspartic acid racemization and DNA analysis

Postmortem teeth are the most stable structures, and can be used to gain different information (age estimation, genetic data). Over long postmortem intervals (PMI), degradation processes may alter the molecular integrity and thus affect the reliability of applied molecular methods. Whereas some knowledge on the degradation of biomolecules in bone during the PMI exists, data for teeth are lacking. In particular, the impact of degradation processes in dentine on age estimation based on aspartic acid racemization (AAR) cannot be estimated yet. Hence, the molecular stability of both collagen and DNA was analyzed systematically, and their impact on the reliability of age estimation based on AAR and genetic analyses was checked. Two hundred and ten human and 59 porcine teeth were heated (90 degrees C in water) to simulate collagen and DNA diagenesis; 14 naturally aged teeth (PMI: 3 days to 1700 years) were analyzed comparatively. Peptide patterns of cyanogen bromide (CNBr)-cleaved collagen were employed as a new approach to check the collagen integrity. In the same samples, collagen yields, amino acid compositions, AAR in different protein fractions, and DNA integrity were analyzed. In heated human and porcine teeth the collagen content declined during the heating experiment. The amino acid composition in human samples was collagen-like until 12 days of heating. In naturally aged teeth, the collagen yielded from 9.5 to 15%, and no discrepancy of amino acid composition to that of modern collagen was observed. Electrophoresis of CNBr-peptides showed an altered pattern in experimentally degraded samples from day 10 on; naturally aged collagen displayed the typical collagen pattern. AAR increased in all protein fractions with increasing duration of the heating experiment; naturally aged samples displayed a slow accumulation of AAR. DNA degraded progressively, and after 32 h of heat exposure no more DNA was detectable, whereas the amplification of nuclear and mitochondrial DNA was successful up to 48 h. STR typing was reliable up to 16 h, and sex determination up to 40 h of heat exposure. In naturally aged samples of DNA quality, yield and typing success did not correlate with PMI. The data highlight a remarkable stability of collagen dental proteins. Within relevant forensic periods a postmortem rise of AAR under normal conditions is negligible, and analyses of dental DNA has a high chance to be successful. However, after large PMI and/or extreme postmortem conditions age estimation based on AAR and genetic analyses lose their reliability.     

Outlining the Shadow of the Axe—On Restorative Justice and the Use of Trial and Punishment

Most proponents of restorative justice admit to the need to find a well defined place for the use of traditional trial and punishment alongside restorative justice processes. Concrete answers have, however, been wanting more often than not. John Braithwaite is arguably the one who has come the closest, and here I systematically reconstruct and critically discuss the rules or principles suggested by him for referring cases back and forth between restorative justice and traditional trial and punishment. I show that we should be sceptical about at least some of the answers provided by Braithwaite, and, thus, that the necessary use of traditional punishment continues to pose a serious challenge to restorative justice, even at its current theoretical best.

European group taxation-the role of exit taxes

The European Commission’s proposal to establish a Common Consolidated Corporate Tax Base reduces both compliance and administrative costs for European groups. The proposal would replace separate entity accounting with a profit allocation based on formula apportionment. Since formula apportionment rests on the source principle, the group faces an incentive to invest in low tax member states. Residence-based group taxation based on separate entity accounting could be an alternative. The subsidiaries’ profits and losses are attributed to the parent of the group (current inclusion), and the European group’s profit is taxed at the corporate income tax rate of the parent. The parent’s state of residence grants a foreign tax credit. Current inclusion prevents tax distortions regarding the location of investments, if no limitations on the foreign tax credit exist. A serious drawback of residence-based taxation is the incentive to move the group’s headquarter to a low tax member state. At present, this incentive is mitigated by exit taxation. Applicable exit taxation rules, however, most likely infringe upon European law. Rules that conform to European law probably abolish unfavourable liquidity effects upon exit. In net present value terms, however, exit taxes still render it burdensome for the group to move the headquarter to another member state.