Dissertationen zum Thema „Declarative act“

La reconnaissance de dette se présente de prime abord comme un acte du quotidien des plus banals : un père prête à son fils une somme d’argent pour l’aider dans un projet, et celui-ci souscrit une reconnaissance de dette ; une succession s’ouvre, et l’on découvre une reconnaissance de dette dressée par le défunt ; un dirigeant de société signe une reconnaissance de dette pour l’activité de la société. Cette banalité induit une certaine évidence dans l’appréhension juridique de cet acte, et justifie probablement qu’aucune étude d’ensemble ne lui ait jamais été consacrée en doctrine. Une telle simplicité n’est pourtant qu’apparente. Les diverses qualifications juridiques que lui prête la doctrine en témoignent : acte unilatéral, contrat unilatéral à titre onéreux, acte déclaratif, acte récognitif, aveu, etc. Loin de constituer un questionnement purement théorique, déconnecté de la pratique, la qualification retenue pour la reconnaissance de dette emporte d’importantes conséquences sur le régime juridique qui lui sera appliqué. Est-elle soumise aux règles relatives aux vices du consentement du droit commun, ou de l’aveu ? Faut-il lui appliquer certains principes relatifs à la preuve, tel que celui de la loyauté ? Quelle capacité exiger de son auteur ? La récente réforme du droit des contrats a ajouté son lot de questionnements en supprimant la cause, grâce à laquelle la jurisprudence contrôlait l’existence d’une dette en matière de reconnaissance. Quel fondement utiliser pour contrôler cette existence en présence d’une reconnaissance de dette souscrite après le 1er octobre 2016 ? Pour répondre à l’ensemble de ces interrogations, la thèse se propose d’abord d’identifier la nature juridique de la reconnaissance de dette, qui semble se trouver quelque part entre la preuve et l’acte juridique. L’opération de qualification requerra d’adopter un autre regard sur ces deux notions, traditionnellement opposées, afin d’envisager l’éventualité d’une catégorie d’acte juridique présentant une qualité probatoire. Le régime juridique de la reconnaissance de dette pourra ensuite être bâti sur le socle de la qualification retenue, dans l’optique d’épouser les singularités de cet acte. Cette construction commandera souvent de résoudre les contradictions apparentes entre preuve et acte juridique
An acknowledgement of indebtedness has become one the banalest actions of everyday life: a father loaning his son some money for him to undertake a project, for which he would write a certificate of indebtedness; heirs finding out that the deceased person had written a certificate of indebtedness; a CEO writing a certificate of indebtedness to save their company… This banality implies some kind of obviousness in the way that this act would be acted upon legally. It probably explains why the doctrine has never researched it extensively. The apparent simplicity of dealing with the outcomes of certificates of indebtedness hides an uncovered process. The numerous legal qualifications given by the doctrine prove it: unilateral act, unilateral contract concluded for pecuniary interest, declarative act, acknowledging act, avowal, etc. Far from constituting a purely theoretical questioning, disconnected from practice, the qualification used for the consequences of dealing with an acknowledgement of indebtedness has important consequences on the legal regime that will be applied to it. Should it be bound to the rules relating to the defects of consent, or the avowal? Should certain principles relating to proof be applied to it, such as loyalty? How liable should the author of a certificate of indebtedness be? The recent reform of contract law has added its share of questions by removing the cause, thanks to which the case law controlled the existence of a debt in terms of recognition. What basis should be used to control this existence in the presence of an acknowledgement of debt subscribed after October 1st, 2016? To answer all these questions, this thesis first offers to identify the legal nature of the acknowledgement of debt, which seems to be somewhere between the proof and the legal act. The qualification operation will require adopting another look at these two notions, traditionally opposed, to consider the possibility of a legal acts category having a probative quality. The legal regime for the acknowledgement of debt can then be built based on the retained qualification, aimed to embrace the singularities of this act. This construction will often require resolving the apparent contradictions between the proof and legal acts

Seamless middleware integration requires conversion of the message format from the source of the request to that of its target. A number of solutions have been proposed and implemented, but they lack wide applicability and ease of use. This thesis proposes an improved solution based-on dynamic protocol-level systems integration using configuration, rather than programming. This allows large complex enterprises to extend and enhance their existing systems more easily. The major components of this solution are a Middleware Protocol Definition Language (MPDL) based on the Object Management Group (OMG) Interface Definition Language (IDL) that can describe a wide range of protocols declaratively, and a run-time environment, The Ubiquitous Broker Environment (TUBE), that takes these protocol descriptions and performs the necessary mediation and translation. The MPDL can describe a range of synchronous, asynchronous, object-based, and binary and text-based protocols. Ea ch protocol need only be described once, and the framework provides a means to easily implement special extensions to the protocol. Further, this approach can be used as the basis for developing new middleware protocols; the protocol used internally by TUBE is itself defined and executed using this approach. TUBE has been implemented and successfully tested across a range of commonly used middleware, including synchronous, asynchronous, object-based, binary and text-based protocols. Key components of the system are currently in operation in a large Australian corporation.

The Professional Project addressed here is an Initial Study/Mitigated Negative Declaration for a project proposed by the staff of the Del Mar Fairgrounds pursuant to legal mandate by the State of California Horse Racing Board. The “Project” subject to documentation under CEQA consisted of removal of the top seven inches of the existing dirt surface on the Del Mar Fairgrounds horse racing track and temporary storage of the material on the practice track infield; installation of a new drainage system, rock filtration system, permeable asphalt layers, and seven inches of engineered surface material; widening of the track in the northeast and southeast curve area; and removal and replacement of existing retaining wall, fence, and landscaping improvements. This Project Report summarizes the stakeholder involvement concepts utilized to obtain project support and approval in an environmentally sensitive area, subject to a long history of political contention, in the midst of other long-term planning efforts such as the San Dieguito Lagoon Restoration Project, and an Updated Master Plan and Master Plan Environmental Impact Report for the fairgrounds property. Ultimately, the Project and CEQA documentation were approved by the Lead agency’s decision-making body, the Board of Directors of the State of California’s 22nd District Agricultural Association.

This article addresses the issue of the pre-legal nature of the Juridical and its stratification in the social and legal level. Also, it contrasts the theory of the will and the theory of the declaration, and refers to the controversy between Emilio Betti and Giuseppe Stolfi about the dispute over the language. The idea of monism is developed in the theory of the Juridical Act quoting Santi Romano and Hans Kelsen, as well as its tensions with dualism. Finally, it takes Juridical Act as historiographical category, and its relationship to the problems of technological society and closes with the gap between private autonomy and Juridical Act.
El presente artículo aborda la cuestión de la naturaleza prejurídica del negocio jurídico, así como su estratificación en el plano social y jurídico. Asimismo, se contrapone la teoría de la voluntad y la teoría de la declaración, y se remite a la polémica entre Emilio Betti y Giuseppe Stolfi como disputa sobre el lenguaje. Se desarrolla la idea del monismo en la teoría del negocio jurídico citando a Santi Romano y Hans Kelsen, así como sus tensiones con el dualismo. Finalmente, se trata al negocio jurídico como categoría historiográfica, y su relación con los problemas de la sociedad tecnológica para cerrar con la separación entre autonomía privada y negocio jurídico.

Bakgrunden till denna studie är proposition 2020/21:144 som överlämnades till Sveriges riksdag den 18 mars 2021, där regeringen initierar en ny lagstiftning som förväntas träda i kraft den 1 januari 2022. Lagen medför en skyldighet för byggherrar att upprätta och registrera en klimatdeklaration för varje ny bygglovspliktig byggnad som uppförs, där mängden växthusgasutsläpp från byggskedet måste beräknas och redovisas för att byggnaden slutligen ska kunna tas i bruk. Studien har en fastighetsjuridisk utgångspunkt men behandlas ur ett företags- och samhällsekonomiskt perspektiv med syfte att undersöka lagens syfte, tillämpning och konsekvenser ur ett marknadsmässigt perspektiv, samt för att analysera korrelationen mellan lagkravets ikraftträdande och konsekvenser för enskilda branschaktörer av olika storlek. Studien utförs genom en kombination av tre vetenskapliga metodologier som tillsammans utgör ett empiriskt underlag för vidare analys. Studiens resultat visar på att lagens ikraftträdande kommer att medföra konsekvenser för samtliga aktörer inom bygg- och fastighetsbranschen, och enskilda branschföretag kommer bli tvungna att implementera kostnadsdrivande anpassningsåtgärder för att uppfylla det nya lagkravet. Detta riskerar särskilt att orsaka problem för de aktörer som inte redan arbetar aktivt med klimatfrågan, och riskerar även särskilt att drabba mindre företag. Detta kan i sin tur orsaka ogynnsamma konkurrensförhållanden på en marknad influerad av oligopolliknande tendenser, vilket även kan medföra samhällsekonomiska effekter, exempelvis i form av stagnation på bostadsmarknaden. I kontrast till detta framhäver dock klimatkalkyler som integrerar ekonomiska och ekologiska nyttoeffekter att införandet av lagen om klimatdeklaration för byggnader på längre sikt kan anses utgöra en lönsam investering ur både ett företags- och samhällsekonomiskt perspektiv.
The background of this study is proposition 2020/21:144 which was submitted to the Swedish Parliament on March 18th 2021, where the government initiates a new law that is expected to enter into force on 1st of January 2022. The law entails an obligation for property developers to prepare and register a climate declaration for each new building subject to a building permit, where the carbon footprint from the construction must be calculated and reported in order to take the building into use. The study has a legal outset towards applicable law but is mainly treated from a business and socio-economic perspective in order to examine the law’s purpose, application and consequences from a corporate view, and to analyze the correlation between the legal requirements and consequences based on company size. The study is carried out through a combination of three scientific methodologies which together form an empirical basis for further analysis. The essence of the study shows that the new legal requirements will affect all different organisations within the construction and real estate industry, and will demand cost-driven adaptation measures to meet the new legal requirements. This is particularly likely to cause problems for those companies who have not already implemented an eco-friendly strategy for sustainability and climate awareness, and will also most likely particularly affect smaller companies in a negative way. This in turn can cause unfavorable conditions of competition in a market influenced by oligopol tendencies, with socio-economic effects, such as stagnation in the housing market, as a result. In contrast, climate calculations that integrate economic and ecological benefits emphasize that the introduction of the Climate Declaration Act for buildings in the longer term could be seen as a profitable investment from both a business and socio-economic perspective.

Byggbranschen är, jämför med andra branscher konservativ. Förändringar, förbättringar och effektivisering sker men inte i den utsträckning och takt det borde. Under mitten av 1980-talet utvecklades en ny samarbetsform i USA och Storbritannien, som kom att kallas för Partnering. Vårt huvudsyfte med denna rapport är att se hur tillämpning av samarbetsformen partnering är inom småhusprojekt. Partnering är ett begrepp som används där man har gemensamma mål, öppenhet med öppna böcker och stor tillit för byggherrens bästa. Att försöka definiera partnering i Sverige har inte varit angeläget eftersom stora variationer i arbetssätt gjorts till respektive projekt. Tidigare studier i England, Danmark och USA har definierat partnering på dessa sätt. Ett partnering team skall bestå av projektledning, projektoptimering och produktion, för att åstadkomma ett gott resultat där alla strategiska leverantörer bidrar med den mest fördelaktiga och optimala lösningen. Man skall skilja på samverkansform, entreprenadform och ersättningsform. Samverkansform/partnering är en del av byggprojektets delar och kan användas vid alla entreprenad-, ersättning- och upphandlingsformer. Eftersom det kan vara besvärligt att ta fram ett riktpris med incitament så har man nu börjat använda en ersättningsmodell i form av budgetmodellen, modellen används av byggherrar som ofta bygger. Grundfilosofin för partnering är öppenhet, tillit, gemensamt uppsatta mål, tid, ekonomi och grupparbete. LEAN är ett produktionssystem som kommer ifrån japanska Toyota, även kallat TPS. Syn och tankesätt kring LEAN handlar om att effektivisera och öka produktiviteten. Ett tydligt exempel på detta är hur lastbilstillverkaren Scania har tillämpat och utvecklat produktionssystemet i sin dagliga verksamhet. Efter sammanställning av detta kandidatexamensarbete kan vi nu återkoppla och besvara vår problemformulering. Partnering är möjligt att tillämpa inom småhusprojekt, och är en bra metod för byggherren att medverka i och påverka tidplan, kvalitet samt budget. Tillämpningen av samverksformen partnering i ett enskilt småhusprojekt kan framstå som invecklat och ofta svårtillämpat. Vi har även fått nya infallsvinklar kring tillämpning av partnering i småhusprojekt, vilka kan vara intressanta för vidare studier.
The construction industry is conservative compared with other industries. Modifications, improvements and efficiency improvements occur, but not to the extent and in the rate that it should. During the mid-1980s, a new form of cooperation was developed in the United States and in Great Britain, which came to be known as partnering. Our main purpose of this report is to see how the appliance of partnering is within a homebuilding project. Partnering is a concept used where there are common goals, openness with open books and great trust in the client's best. Trying to define partnering in Sweden has not been imperative since large variations in approaches have been done to respective project. Previous studies in Great Britain, Denmark and the United States have defined partnering on these ways. A partnering team shall consist of project management, project optimization and production, to achieve a good result where all strategic suppliers contribute with the most beneficial and optimal solution. One should distinguish between the form of collaboration, the form of contract and compensation terms. The form of collaboration/partnering is a part of the construction project parts and can be used for all contract-, replacement- and purchase forms. Because of the difficulty to produce a target price with incentives, it is known to use a compensation model in the form of a budget model. This model is often used by a developer who often builds. The basic philosophies of partnering are openness, trust, common goals, time, finances and team work. LEAN is a production system that comes from the Japanese Toyota, also known as TPS. Sights and thinking regarding LEAN is to render more effective and to increase the productivity. An example of this is how the truck manufacturer Scania has applied and developed the production system in their daily activity. Partnering is possible to apply within small house projects, and is a good method for the future proprietor to contribute in and to influence time flat, quality and budget. The application of the interacting mould partnering in an individual small house project can seem complicated and often difficult to apply. After the summary of this study, we can now re-engage and answer our problem wording. We have also received new insights about the application of partnering in homebuilding projects, which may be of interest for further study.

Made available in DSpace on 2016-04-26T20:24:09Z (GMT). No. of bitstreams: 1 Andre Guimaraes Avilles.pdf: 928959 bytes, checksum: 53d87e9b25aa119ea28683cd35c16698 (MD5) Previous issue date: 2016-02-19
This work comes in response to the great importance of study about transaction declaration of will to the transaction acts. The analysis of subjective and objective aspects, of the will and its manifestation does not have consensus between the doctrine and the main Roman-Germanic origin civil legislation in force. Therefore, the work seeks to analyze the concept of transaction act, in order to dissect what is in fact the place of declaration of will on its formation, and what are its necessary elements to bring a declaration of will able to create, modify or extinguish rights within the sphere of Private Law. In addition, the study seeks to address the main forms of known declaration of will, as well as how these are viewed by contemporary laws
A escolha do objeto deste estudo se deveu à grande importância que o estudo da declaração de vontade negocial tem para a formação do negócio jurídico. A análise de seus aspectos subjetivos e objetivos, da vontade e de seu modo de exteriorização ainda não possui consenso entre a doutrina e as principais legislações civis de origem romano-germânica vigentes. Por isso, buscou-se adentrar no próprio conceito de negócio jurídico, a fim de se dissecar qual é de fato o papel da declaração de vontade negocial na sua formação, bem como quais são os elementos necessários para que se produza manifestação de vontade apta a criar, alterar ou extinguir direitos dentro da esfera do Direito Privado. Além disso, o trabalho buscou enfrentar as principais formas de declaração de vontade negocial conhecidas, bem como a maneira como estas são encaradas pelas legislações contemporâneas

Kia mau ki te rangatiratanga o te Iwi o Hauraki Just as the whakataukī explains Hold fast to the power and authority of the Hauraki tribes the focus of this study is to examine and evaluate the impact of Te Ao Pākehā on Pare Hauraki lands and Tīkapa Moana under the mana of Pare Hauraki Māori and Pare Hauraki tikanga. The iwi of Pare Hauraki have land claims through the, (Wai 100) and the Hauraki Māori Trust Board, before the Waitangi Tribunal highlighting whenua issues and their impact on Pare Hauraki iwi. Also relevant is the foreshore and seabed issue which is documented leading on to the infamous Foreshore and Seabed Act 2004, (for Māori anyway), sparking widespread opposition by Māori throughout the country, and other supportive non-Māori groups because of the issue concerning Māori kaitiiakitanga and guardianship roles. This investigation will commence by outlining the histories of discovery and settlement of Pare Hauraki, the concept of mana-whenua/mana-moana as it applies to Pare Hauraki Māori and our tikanga, and then to subsequent issues leading to land alienation of the early 19th to late 20th cenutries and then to the foreshore issue of the early 21st Century. This research will include information showing that before 1840 to Te Tiriti o Waitangi and thereafter that Pākehā and various Crown agents, through legislation claimed the rights to the lands, waterways and oceanic areas under the kaitiakitanga of my tupuna of Pare Hauraki. Tupuna and other iwi members have expressed their disgust seeing the mana of their traditional lands, waterways, oceanic areas and kaitiaki roles slipping away from them through these activities. Therefore, this thesis is a response to those issues and the impact on (a), Māori as a people, and our tikanga Māori and (b), Pare Hauraki Māori as the kaitiaki/guardians of the Pare Hauraki rohe/territory in accordance with tikanga Māori, and the significance of the responsibilities which arise out of the Māori concepts of kaitiakitanga, manaakitanga and rangatiratanga.

The desire to enhance and make ourselves better is not a new one and it has continued to intrigue throughout the ages. Individuals have continued to seek ways to improve and enhance their well-being for example through nutrition, physical exercise, education and so on. Crucial to this improvement of their well-being is improving their ability to remember. Hence, people interested in improving their well-being, are often interested in memory as well. The rationale being that memory is crucial to our well-being. The desire to improve one’s memory then is almost certainly as old as the desire to improve one’s well-being. Traditionally, people have used different means in an attempt to enhance their memories: for example in learning through storytelling, studying, and apprenticeship. In remembering through practices like mnemonics, repetition, singing, and drumming. In retaining, storing and consolidating memories through nutrition and stimulants like coffee to help keep awake; and by external aids like notepads and computers. In forgetting through rituals and rites. Recent scientific advances in biotechnology, nanotechnology, molecular biology, neuroscience, and information technologies, present a wide variety of technologies to enhance many different aspects of human functioning. Thus, some commentators have identified human enhancement as central and one of the most fascinating subject in bioethics in the last two decades. Within, this period, most of the commentators have addressed the Ethical, Social, Legal and Policy (ESLP) issues in human enhancements as a whole as opposed to specific enhancements. However, this is problematic and recently various commentators have found this to be deficient and called for a contextualized case-by-case analysis to human enhancements for example genetic enhancement, moral enhancement, and in my case memory enhancement (ME). The rationale being that the reasons for accepting/rejecting a particular enhancement vary depending on the enhancement itself. Given this enormous variation, moral and legal generalizations about all enhancement processes and technologies are unwise and they should instead be evaluated individually. Taking this as a point of departure, this research will focus specifically on making a case for ME and in doing so assessing the ESLP implications arising from ME. My analysis will draw on the already existing literature for and against enhancement, especially in part two of this thesis; but it will be novel in providing a much more in-depth analysis of ME. From this perspective, I will contribute to the ME debate through two reviews that address the question how we enhance the memory, and through four original papers discussed in part three of this thesis, where I examine and evaluate critically specific ESLP issues that arise with the use of ME. In the conclusion, I will amalgamate all my contribution to the ME debate and suggest the future direction for the ME debate.

This thesis draws on David Harvey’s concept of “accumulation by dispossession” and an international political economy (IPE) approach centred on the institutional arrangements and power structures that privilege certain actors and values, in order to critique current capitalist practices of primitive accumulation by the global corporate extractive industry. The thesis examines how accumulation by dispossession by the global extractive industry is facilitated by the “free entry” or “free mining” principle. It does so by focusing on Canada as a leader in the global extractive industry and the spread of this country’s mining laws to other countries – in other words, the transnationalisation of norms in the global extractive industry – so as to maintain a consistent and familiar operating environment for Canadian extractive companies. The transnationalisation of norms is further promoted by key international institutions such as the World Bank, which is also the world’s largest development lender and also plays a key role in shaping the regulations that govern natural resource extraction. The thesis briefly investigates some Canadian examples of resource extraction projects, in order to demonstrate the weaknesses of Canadian mining laws, particularly the lack of protection of landowners’ rights under the free entry system and the subsequent need for “free, prior and informed consent” (FPIC). The thesis also considers some of the challenges to the adoption and implementation of the right to FPIC. These challenges include embedded institutional structures like the free entry mining system, international political economy (IPE) as shaped by international institutions and powerful corporations, as well as concerns regarding ‘local’ power structures or the legitimacy of representatives of communities affected by extractive projects. The thesis concludes that in order for Canada to be truly recognized as a leader in the global extractive industry, it must establish legal norms domestically to ensure that Canadian mining companies and residents can be held accountable when there is evidence of environmental and/or human rights violations associated with the activities of Canadian mining companies abroad. The thesis also concludes that Canada needs to address underlying structural issues such as the free entry mining system and implement FPIC, in order to curb “accumulation by dispossession” by the extractive industry, both domestically and abroad.

碩士
國立中興大學
法律學系碩士在職專班
105
According to the regulations concerning the consolidated income tax jointly declared by taxpayers and spouses with incomes thereof and other dependents thereof provided in Article 15 and Item 1 of Article17 in Income Tax Act, the joint declaration is essential to the furtherance of public interests and does not collide with the Constitution in terms of declaration procedures. In comparison with the amount of tax being calculated alone, provided the tax bearing increases when the taxation is jointly calculated on the basis of the taxpayer, the spouse thereof and other dependents thereof, the case consequently does not conform to the principle of fair taxation. This situation is explained and recorded by Judicial Yuan Interpretation No.318 File. The No.696 Interpretation issued by Judicial Yuan declared that, the regulation concerning compulsive joint calculation of taxation of couples’ non-salary income provided by Article 15 of Income Tax Act violates provisions of the Constitution. It has consequently solved the problems regarding couples’ joint calculation of taxation. However, provisions regarding joint declaration and payment are regarded as constitutionality. As a consequence, provisions regarding joint declaration and payment could not be revised along with others and still cause the violation of rights to taxpayers, spouses thereof and dependents thereof. In view of existing circumstances of Taiwan tax system regarding consolidated income tax, the study sorted out and analyzed problems based on lawful, fair and other principles of taxation and proposed relevant suggestions for the revision of laws, with the expectation of serving as a reference for the future development of tax system.

碩士
長榮大學
經營管理研究所
93
The paper uses event study to do the research analysis, which declares effect for the Organization Act of Financial Supervisory Commission, examining the declaration effect to the financial industry in Taiwan. At the same time, the relationship between the average unusual remuneration and business financial characters is analyzed by using regression model. The empirical results reveal as follows: 1.After enforcing the Organization Act of Financial Supervisory Commission, companies in sample have significant negative effect for average unusual remuneration. 2.For Wealth Effect, the financial holding companies have more significant negative effect than others on the announcement day；however, on systematic risk, non-financial holding companies drop this risk relatively large before the date. 3.The results for the analysis of financial characters and average unusual remuneration show that the companies having less debt have relatively small impact while the Act enacts.

碩士
國立中正大學
勞工所
96
Declared insurance wages/salary under the Labor Insurance has been biased to be lower over the past half century. With the enactment of the Labor Pension Act, it is expected to ameliorate the accuracy of declared insurance wages/salary under the Labor Insurance. This research thus explores what measures have been adopted by the Bureau of Labor Insurance, how workers and employers have adjusted their attitude with respect to declared insurance wages/salary and how effective of declared insurance wages/salary has been improved. The methods adopted include interviews of two officers from the Bureau of Labor Insurance, three cadres of national trade unions and two cadres of employers’ organizations, secondary data analysis and literature review. The major findings are the following: After the enactment of the Labor Pension Act, the Bureau of Labor Insurance becomes more effective to double check the accuracy of declared insurance wages/salary under the Labor Insurance. Workers become more aggressive to guarantee their declared insurance wages/salary to be close to their actual wages/salary. Employers observe the Labor Insurance Act better than ever. Hence declared insurance wages/salary has been improved across all industries, though the degree of improvement depends upon their degrees of honesty in declared insurance wages/salary and the level of wages/salary before the enactment of the Labor Pension Act. This research also proposes some suggestions to strengthen the mechanism of the Labor Insurance, the implementation of the Labor Pension Act and the definition of wages/salary.

碩士
中國文化大學
法律學系
103
Sunshine is the best preservative. In order to assure the incorruptibility of public servants, after several consultations among ruling and opposition parties in the Legislative Yuan, the Act on Property-Declaration by Public Servants had been finally passed on June 15, 1993 and taken effect on September 1 in the same year. The target is to achieve an honest and transparent politics by the Act on Property-Declaration by Public Servants and other laws, such as Political Contributions Law, Enactment of Lobbying Act, and Act on Recusal of Public Servants Due to Conflicts of Interest. The Act on Property-Declaration by Public Servants has been implemented for more than 20 years with four amendments. It is worth discussing about whether the Act needs to be improved further. A comprehensive analysis was made about the legal and the practical side of the Act on Property-Declaration by Public Servants in this study. First I analyzed the pros and cons of the Act, and then explored the implementation experiences of property declaration in other countries or regions, and finally made some suggestions for future amendments. It is expected that the property declaration can be carried on thoroughly to enhance the national competitive power and the Corruption Perceptions Index (CPI).

碩士
國立高雄大學
法律學系碩士班
106
The problem of public servants’ corruption is now a globally salient issue. To curb this problem, the majority of countries around the world aspires to establish governments of great integrity seeking to prohibit corruption by, in addition to aggravating its criminal liability, aggressively framing the so-called “Sunshine Act” in defining and preventing the crime of corruption by public servants. This law which demands public servents to disclose personal property is already deemed as one of the most effective policies against bribery and fraudulence. Likewise, the Taiwanese government has put all efforts in restraining corruption that may occur in public posts. For the purpose of ensuring good administration, several sets of Sunshine Act were legislated in a steady pace in Taiwan. For instance, the Act on Property-Declaration by Public Servants, released in 1993, was known as the first Taiwanese Sunshine Act in history. While this Act had undergone four modifications since its day of enactment, it is still facing criticism and unrelenting reviews. Noteworthy is its third modification in 2007, in which the scope of the liable individuals who shall make property declaration was significantly expanded, thus attesting the government’s determination on enforcing anti-corruption policies. It is nonetheless a disappointing fact that, more than twenty years after enactment of the Act, the execution outcome nowadays can hardly meet the initial expectation upheld by legislators. Especially following the extension of the Act to the larger pool of liable individuals, the competent property declaration agencies experienced many difficulties in conducting effective inspection on these individuals. These barriers to effective execution not only resulted in a waste of administrative resources but also rendered public servants’ resentment and fear of privacy violation. How may we define the scope of the liable individuals who shall make property declaration so as to achieve the greatest efficacy of the Act? Whether the reference to the“Corruption Perceptions Index” superior to Taiwan foreign experience and legislation, appropriate amendments the object of property declaration, achieve the goal of establishing a integrity government?This is the motive of this research. According to Transparency International research , The declaration system of public servent property has made a significant contribution to the reduction of corruption. However, the study also pointed out that the scope of the number of property declarations and the Corruption Perceptions Index is no exactly correlation. In particular, due to the limited audit capacity, more attention should be paid to the practical limitations of the property declaration system. Therefore, this study advocates that in order to improve the effectiveness of the Property Declaration Act, we should re-examine the scope of the object of property declaration. Use the importance of job and business risk as a necessary basis for judging. Needless to say the importance of the job. For business risk, the government should consider whether to use administrative means to reduce the risk of corruption. Strive to limit the scope of the object of property declaration, to avoid the risk of infringing upon the privacy of most public servants and to achieve the goals of appropriate political and legislative.

碩士
國立臺灣海洋大學
海洋法律研究所
99
Corruption is by far the biggest obstacle to a country’s political stability, social progress, and economic prosperity. People who corrupt not only obtain illegal profits by abusing the power and rights authorized by the public, they damage the public interest and destroy the people’s trust in government. In order to enhance a country’s competitiveness, stabilize economic development, and promote the public welfare, restoring integrity and capacity to government is the most important priority. “Sunlight is the best preservative.” In order to ensure the righteous behavior of personnel in public office, end money politics, and promote the robust development of democratic politics, beginning in 1993 Taiwan has established a series of “sunlight acts.” Among them, “Act on Property Declaration by Public Servants,” is an important part of the sunlight acts. On June 15, 1993, the Legislative Yuan passed the 17 clauses of Act on Property Declaration by Public Servants in response to the public’s yearning for clean politics, and this act was implemented on September 1. It has been 17 years, and the act has undergone 4 instances of modification. However, at the current point there are many calls for it to be modified again. There are important issues such as whether the act can be modified and improved upon after years of practical operation, and whether the act truly meets its objective of “correcting political customs and assuring incorruptible action of public servants, are worthy of in-depth research and exploration. This study engages in a composite analysis of the legal and practical aspects of the Taiwan Act on Property Declaration by Public Servants, applying academic discourse and practical views to explore the act’s pros and cons. This study further summarizes the experiences of other countries in implementing laws on property declaration in order to consider improvements to the Taiwan Act on Property Declaration by Public Servants, and to provide suggestions for improvements. It is hoped that this can be used as a reference for further systematic reform and resolution of controversial issues, and help to modify the Act on Property Declaration by Public Servants and create a clean political system.

碩士
國立臺北大學
犯罪學研究所
102
In recent years, there have been many corruption events of public servants taking place; these events really shocked the society. “Act on Property-Declaration by Public Servants” is the sunshine act of our country, and its object is to prevent from corruption. Control Yuan is one of the law enforcement agencies. The research analyzes and investigates the property declaration of public servants from the view points of both systematic aspect and practical aspect. In order to examine the enforcement situation of Control Yuan on the “Act on Property-Declaration by Public Servants”, the research picks out the vibration cases due to false declaration from all declaration cases of Control Yuan as the research data. Afterward, the research analyzes the characteristic of these cases and then finds out the factors influencing the fines. The research uses 112 public servant property declaration vibration cases and 32 public property declaration appeal cases considered intentional false declaration from September 2009 to September 2014 as the research data, and adopts the secondary data analysis method to perform the analysis. We encode these data and then perform statistical analysis on them by SPSS software. The research result proves that the public servant property declaration vibration cases considered intentional false declaration have the following situations: (1) only 1 percentage of the declarants are fined; (2) most of the persons liable to penalty are the township/city representatives; (3) the item that most persons liable to penalty declare falsely is debt; (4) most appellants’ excuses for false declaration are that they do not understand the declaration regulations; (5) the false declaration amount of 50% of the appellants is 3 million~10 million; (6) only the false declaration amount of the appellants is closely related to the fine. Finally, this study concludes by study results and proposes the concrete suggestions for improving the inspection of the public service property declaration. Hopefully, the above propositions will boost the anti-corruption mechanisms of the Control Yuan to meet the expectation of the public in the future.

碩士
國立成功大學
法律學系
101
In the current tax collection practices, once the business entity was identified as the activity of input tax falsely reported, punishment of duty violated or punishment of tax evaded is adopted by choosing a severe one as a punishment; moreover, the conclusion of tax evasion was determined by the scope of the taxpayer in the single-stage. The reasons of input tax falsely reported are complex and diverse. However, it is too simple that the basis of deciding the severity of the discretion of Tax Collection Authorities in the Value-added and Non-value-added Business Tax Act. The Essay doesn’t agree with the matters mentioned above. The Essay used the article 51 in the Value-added and Non-value-added Business Tax Act as the center to analyze the behavior of input tax falsely reported by using the three-stage of evaluating an illegal act in the theory of Criminal Law. It is divided into sections discussing the objective constituent elements, the subjective constituent elements, the subject matter of responsibility, the legal effect, and the concurrence, it is between Administrative Punishment and between Administrative Punishment and Tax Punishment, and is drawn the following key summaries. 1. When we identified the input tax as non-deductible duty, the legal effect is to pay an overdue tax. However, it doesn’t mean that there is a tax evasion. Paying an overdue tax and punishment are as an independent. 2. Based on the business tax is the nature of the consumption tax and the indirect tax, the measure of tax evasion result should be comprehensive perspective of the declaration by the upstream and downstream business entities. However, it is so difficult to audit it administratively. 3. It is too simple that the current discretion of the Value-added and Non-value-added Business Tax Act did not fully comply with the stipulations of the Administrative Punishment Act. Therefore, the Essay refers to the concept of discretion in the Administrative Law and the Criminal Law and tries to develop the spectrum of the discretion types or checklist. 4. In the concurrence point of view, the Essay argues that the relationship between the punishment in the violation of accepting vouchers, called the punishment of duty violated, and the punishment in the violation of obligation to pay tax, called the punishment of tax evaded, is not to choose a severe one as a punishment, but to complement with each other. Instead, it should be a single-punishment. 5. In the legislative point of view, any punishment should be directed against illegal acts. It is not appropriate that the current element of punishment is not only the amount of tax evasion but also the multiples of it unlimited. About the punishment and discretion of input tax falsely reported, the expectation of the Essay is that the quality of the current administrative operations should be in the way from economically and conveniently to meticulously.

Dissertação de Mestrado em Direito apresentada à Faculdade de Direito
O direito de preferência é um direito que certa pessoa tem de preferir a qualquer outra na compra de certo bem ou na celebração de outro contrato compatível com a compra e venda, desde que se disponha a celebrar o contrato em igualdade de condições com terceiro. Este direito pode provir de contrato ou da lei. Isto é, o pacto de preferência, no primeiro caso, e o direito legal de preferência, no segundo caso. Na verdade, no que diz respeito ao direito de preferência, existem, na doutrina e na jurisprudência, múltiplas e intermináveis discussões. Neste sentido, o presente estudo tem como escopo a análise do mesmo direito e, designadamente, a sua tutela jurídica. Para além de fazermos, primeiramente, referência à história do direito de preferência, é necessário analisarmos a questão dos factos que determinam a constituição do direito de preferência, as questões relativas à comunicação para preferência e à declaração de preferência. E ainda, também é preciso analisarmos a natureza jurídica do direito de preferência. Na realidade, existe uma variedade de concepções na doutrina relativas ao conceito e ao conteúdo do direito de preferência, ou por efeito da eficácia erga omnes do mesmo direito, ou ainda, por causa da distinção entre pacto de preferência e figuras próximas. Neste sentido, fazemos referência a várias concepções que se debatem actualmente na doutrina e apresentamos a nossa posição. No final, no sentido de conhecermos a tutela do direito de preferência, fazemos referência aos meios de tutela jurídica do mesmo direito, isto é, principalmente, o direito à indemnização e o direito de recorrer à acção de preferência.
The right of first refusal is a right that a person need to give preference to any other person in purchase of certain good or in conclusion of another contract which is compatible with the contract of purchase and sale, if he is willing to conclude the contract on equal terms with a third party. This right can be derived from contract or law. In doctrine and jurisprudence, there are multiple and endless discussions regarding the right of first refusal, so the purpose of this study is to analyze this institute, in particular, the protection of the right of first refusal.This study provides a reference to the history of the right of first refusal. It is also necessary to analyze the questions of the facts that determine the constitution of this right, and questions related to the communication for preference and the declaration of preference.It is also necessary to examine the legal nature of the right of first refusal. It is found that in relation to the concept and content of the right, or because of the effectiveness in relation to the third parties, or because of the difference between preference pact and the close figures, there is a variety of conceptions in doctrine. Therefore, the study makes reference to several conceptions which are currently being discussed in the doctrine, and it present our position.In order to know the protection of the right, we refer to the means of legal protection, they are mainly the right to compensation and the right to propose the preference action.

La tesi di dottorato affronta anzitutto - attraverso un'analisi di carattere storico della vicenda inglese di common law - la questione dei tratti specifici che hanno caratterizzato la concezione dei diritti fondamentali nell'esperienza del Regno Unito nonché la loro applicazione ad opera delle corti. La parte centrale del lavoro riguarda l'influenza che su tale assetto costituzionale ha esercitato il processo di integrazione sovranazionale, con particolare riferimento alla incorporazione della Convenzione Europea dei Diritti dell'Uomo nell'ordinamento nazionale attraverso lo Human Rights Act (HRA). Il tema della relazione tra tradizione di common law e principi europei viene svolto esaminando la giurisprudenza della Corte Europea riguardante il Regno Unito e l'applicazione nelle fattispecie della nozione del margine di apprezzamento. Si esamina altresì l'applicazione da parte delle corti domestiche delle regole dello Human Rights Act con particolare riferimento alla regolala del "taking into account". Particolare attenzione è dedicata altresì alla disposizione della sezione 4 dello HRA che introduce lo strumento della "declaration of incompatibility". Si da conto del dibattito scientifico in ordine al rafforzamento che tali strumenti decisionali avrebbero determinato sul ruolo dei giudici nell'ambito della tutela dei dritti a discapito dello stesso postulato fondamentale della sovereignty of parliament. In questo contesto si inserisce l'istituzione della Uk Supreme Court che - anche in forza delle innovazioni normative volte a sancire l'indipendenza dal potere legislativo- ha portato ad un progressivo accostamento dell'ordinamento inglese agli ordinamenti a costituzione scritta. Si evidenzia infine, con riferimento alla più recente giurisprudenza della Supreme Court, il perdurante attaccamento dei giudici inglesi ai principi di common law in materia di diritti fondamentali che in qualche caso sostituiscono il richiamo ai principi di matrice convenzionale convenzionali.
This ph.D dissertation stresses the consequences of the incorporation of the ECHR into Uk law effected by the Human Rights Act (HRA). The first part of the research concern with the historical development of british common law relating protection of the liberties and rights until the conceptualization of the rule of law principle and the differences with continental tradition. The second part consider the subscription of the European Convention on Human rights by the Uk and the debate about the incorporation from the first proposal until the approval of the HRA 1998. Therefore, the aim of the research is to determine if the incorporation realizes a homogenization between english constitutional system and european constitutional tradition, with special attention to the traditional features of british common law tradition as the rule of law and the sovereignty of Parliament. The relationship between common law and european principles is also examined through the decisions of the European Court relating the UK and the application of the Human Rights Act by english courts. Especially the relationship between European Court and english courts is taken into consideration due to the application of section 2 HRA, which establishes the duty to “take into account” the decisions of the European Court when a convention right is concerned. The focus is then on section 4 which introduces a mechanism similar to a constitutional review of legislation (the declaration of incompatibility) which gives courts the power to declare the incompatibility between a statute or an act of parliament and a right protected by the Convention. Also the institution of the Uk Supreme Court seems to lead to a convergence with written constitution countries. Though the incorporation had a very important impact on the british constitution, the most important cases decided by the Uk Supreme Court show that common law is still the preferred instrument used by the courts.

The thesis deals with procedure of asylum and additional protection granting in the Czech Republic. The thesis focuses on characteristic features of the process; primarily the proceeding the application of protection and asylum granting by official authorities. To a certain extent, the thesis copes with substantive law; it defines terms of refugee and asylum law. It enumerates and characterizes the mentioned terms in connection with the process of the asylum and protection granting in the Czech Republic. Impact of the European Union law on the Czech internal law is also discussed.

Every human being deserves to have their rights respected all the times. Not only does the correctional system have the responsibility to rehabilitate offenders before they are released to the community but also to respect their rights throughout the rehabilitation process.. In this research the extent in which human rights affect the process of rehabilitation was outlined. This was achieved by analyzing the provisions of major human rights instruments, both internationally and nationally as well as standards required for the treatment of offenders. In addition various rehabilitation programmes were also discussed. The findings of the research indicated that South Africa has achieved a lot when it comes to the recognition of human rights. From the research it was discovered that indeed offenders' rights have an impact on the rehabilitation process. Based on these and other findings recommendations were made.
Criminal Justice
M. Tech. (Correctional Services Managemnent)

American jurisprudence currently applies two incompatible validity standards to determine which laws are enforceable. The natural law tradition evaluates validity by an uncertain standard of divine law, and its methodology relies on contradictory views of human reason. Legal positivism, on the other hand, relies on a methodology that commits the analytic fallacy, separates law from its application, and produces an incomplete model of law. These incompatible standards have created a schism in American jurisprudence that impairs the delivery of justice. This dissertation therefore formulates a new standard for legal validity. This new standard rejects the uncertainties and inconsistencies inherent in natural law theory. It also rejects the narrow linguistic methodology of legal positivism. In their stead, this dissertation adopts a pragmatic methodology that develops a standard for legal validity based on actual legal experience. This approach focuses on the operations of law and its effects upon ongoing human activities, and it evaluates legal principles by applying the experimental method to the social consequences they produce. Because legal history provides a long record of past experimentation with legal principles, legal history is an essential feature of this method. This new validity standard contains three principles. The principle of reason requires legal systems to respect every subject as a rational creature with a free will. The principle of reason also requires procedural due process to protect against the punishment of the innocent and the tyranny of the majority. Legal systems that respect their subjects' status as rational creatures with free wills permit their subjects to orient their own behavior. The principle of reason therefore requires substantive due process to ensure that laws provide dependable guideposts to individuals in orienting their behavior. The principle of consent recognizes that the legitimacy of law derives from the consent of those subject to its power. Common law custom, the doctrine of stare decisis, and legislation sanctioned by the subjects' legitimate representatives all evidence consent. The principle of autonomy establishes the authority of law. Laws must wield supremacy over political rulers, and political rulers must be subject to the same laws as other citizens. Political rulers may not arbitrarily alter the law to accord to their will. Legal history demonstrates that, in the absence of a validity standard based on these principles, legal systems will not treat their subjects as ends in themselves. They will inevitably treat their subjects as mere means to other ends. Once laws do this, men have no rest from evil.