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Journal articles on the topic 'Judicial review – Germany'
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1
Nolte, Georg, and Peter Rädler. "Germany – Judicial Review in Germany." European Public Law 1, Issue 1 (March 1, 1995): 26–32. http://dx.doi.org/10.54648/euro1995007.
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Stelkens, Ulrich. "Judicial Protection and Competitive Award Procedures in Germany." Review of European Administrative Law 14, no. 1 (May 14, 2021): 141–65. http://dx.doi.org/10.7590/187479821x16190058548763.
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The history of German public procurement law is a history of attempts by the German legislator to implement the EU public procurement directives on judicial protection, namely Directive 89/665/EEC of 21 December 1989, as minimally as possible. Paradoxically, the history of German procurement law is also the history of an increased spreading of the model of judicial review in 'competitive award procedures' underlying Directive 89/665/EEC to other administrative procedures. Here, one can discern mutual fertilization of the discussions on the minimal standards for judicial protection foreseen in Directive 89/665/EEC, as well as a parallel discussion on minimal standards (directly derived from the German constitution) for judicial review in competitive award procedures concerning the recruitment of public officials. On this basis, one may discern trends in German case law, administrative practice, and scholarship towards developing judicial review systems in competitive award procedures for public procurement beyond the thresholds set by the EU directives. This is relevant for privatizations, gambling licences, and procedures to grant the right to use public spaces, to name only a few. However, these trends encounter difficulties because the German General Administrative Court Procedure Act and other relevant legislation are not tailored to competitive award procedures. This article will analyse these different trends and suggest explanations for them.
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Aung, Nge Nge. "The Basis of Constitutional Adjudication in Germany." Fiat Justisia: Jurnal Ilmu Hukum 16, no. 1 (June 7, 2022): 47–64. http://dx.doi.org/10.25041/fiatjustisia.v16no1.2419.
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The Federal Constitutional Court of Germany leads the judiciary’s independence by protecting human rights within the Basic Law’s legal framework. In this case, the jurisdiction of the Court is essential to analyse comprehensively. The first and foremost function is interpretation. It is concerned with the extent of a supreme federal authority’s rights and duties and the citizens who can enjoy the fundamental rights under the Basic Law. The rest are abstract judicial review, constitutional complaint, and concrete judicial review. These all seem to depend on the Court’s interpretation and the supremacy of human dignity. Therefore, the issues lie when human dignity becomes a constitutional principle to resolve economic, social, and political disputes within the constitutional framework both in Germany and the European Union in practice. This research will used qualitative approach method. According to the literature reviews, human dignity is supreme, but it does not mean absolute.
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Konyukhova, A. A. "Settlement of Tax Disputes in the Russian Federation and Germany." MGIMO Review of International Relations, no. 2(41) (April 28, 2015): 269–75. http://dx.doi.org/10.24833/2071-8160-2015-2-41-269-275.
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This article is devoted to the settlement of tax disputes in the Russian Federation and the Federal Republic of Germany. The features of the conflict settlement mechanism are both shown in the stage of administrative and judicial review. In accordance with German law, the administrative stage of dispute resolution, carried out by the tax authority, always precedes the filing of a complaint to a court. Consequently, the taxpayer submits his first application in writing to the tax authority that issued the tax act, though in some cases to a higher tax authority. This obligatory procedure was borrowed by the Russian tax system. The trial stage of tax dispute settlement in Germany is carried out by specialized courts, forming a two-level system for legal proceedings. Thus, the tax dispute submitted to the Court is settled first by the financial lands courts and then by the higher Federal Financial Court. However, the Federal Financial Court takes into consideration only certain categories of actions listed in the Act (the Regulations) of finance courts (Finanzgerichtordnung). In Russia appeals of administrative review of tax conflicts, unlike in the German system, are handled by arbitration and general jurisdiction courts. The Supreme Arbitration Court of the Russian Federation is the supreme judicial body for settling economic disputes and other cases considered by arbitration courts in implementing federal procedural judicial supervision over their activities and provides explanations regarding judicial practices. Arbitration courts established at the level of the Federation to resolve disputes involving commercial entities, e.g. enterprises and entrepreneurs, resolve the bulk of tax disputes. These courts are composed of specially created panels of judges known as bars, i.e. groups of judges who specialize in reviewing taxation cases.
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Belling, D. V., and G. Kulyamina. "Pardon in german law." Lex Russica, no. 3 (April 5, 2019): 116–23. http://dx.doi.org/10.17803/1729-5920.2019.148.3.116-123.
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In modern Germany, a secular state with a republican form of government, there is still the institution of pardon, known in the pre-Christian era. Under the current Constitution of Germany pardon is carried out by the President of Germany, the decision is not subject to judicial review. The relationship of mercy and justice has been controversial for centuries. Opinions differ in literature and court practice, up to the Federal Constitutional Court of Germany. A retrospective of the historical development of the practice of pardon, the analysis of the goals and consequences of this measure convincingly prove the need for the possibility of judicial review of clemency decisions enshrined in the legislation. This is the only effective way to prevent arbitrariness, abuse of power and violation of human rights. The modern legal state should not allow the negative experience of past dictatorships and monarchies.
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Harker, Michael, Sebastian Peyer, and Kathryn Wright. "JUDICIAL SCRUTINY OF MERGER DECISIONS IN THE EU, UK AND GERMANY." International and Comparative Law Quarterly 60, no. 1 (January 2011): 93–124. http://dx.doi.org/10.1017/s0020589310000680.
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AbstractThe appropriate role of the courts in controlling the discretion of merger authorities has become one of the key issues in European merger law and policy in recent years. This article investigates judicial review of merger decisions, taking a comparative approach by examining cases from the EU, UK and Germany. We observe an apparent increase in the willingness of the EU and UK courts to scrutinize merger decisions, and a long-standing tradition of close scrutiny in Germany. In respect of the EU and UK, we consider agency theory offers a convincing explanation—that increased scrutiny is explained by the need to enhance the credibility of merger policy. In Germany, the constitutional basis of judicial review differs significantly, and the relatively close scrutiny exercised by the court is better explained by the very different constitutional context.
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Katsirea, Irini. "Judicial Review of Party Broadcasts in Germany and the United Kingdom." Journal of Media Law 1, no. 2 (November 2009): 269–87. http://dx.doi.org/10.1080/17577632.2009.11427344.
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Baer, Susanne. "Who cares? A defence of judicial review." Journal of the British Academy 8 (2020): 75–104. http://dx.doi.org/10.5871/jba/008.075.
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For a long time, politicians and scholars and even judges have criticised national and international courts with the competence of judicial review of legislative and executive powers. The defence usually relies on more or less abstract notions of the rule of law. This article, however, argues that at the heart of the matter are people, as protected by fundamental rights. Critical approaches to the law and studies in comparative constitutionalism allow us to understand why judicial review matters, namely: to whom. From that point of view, judicial review is not just a debatable idea, but it is about, specifically, children and women, non-patriarchal men and social and cultural minorities, poor people and others who are excluded. These are people in need of courts. For people, the rule of law is not just another concept of how things may be run, but is a protective device against arbitrariness, or outright hostility, of political majorities. Way beyond a reference to Germany�s history, judicial review is a �never again� to law as an empty promise.
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Perkins, Andrew James. "The Legal and Economic Questions posed by the German Constitutional Court’s decision in the Public Sector Purchase Programme (PSPP) Case." ATHENS JOURNAL OF LAW 7, no. 3 (July 1, 2021): 399–412. http://dx.doi.org/10.30958/ajl.7-3-7.
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This paper seeks to explore the PSPP decision of the German Constitutional Court and its effect on the monetary policy decisions taken by central banks. It begins by exploring the decision and its effect in Germany, together with its wider implications for the European Monetary Union before moving onto consider the standard of review that should be applied by the Courts when they are required to review central banks actions. Conclusions are reached to show that any standard of review should be limited because of the unique economic and political circumstances in which central bank decision making takes place. Keywords: Central Banking; Judicial Review; Proportionality; European Law; European Monetary Union.
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Shumylo, Mykhailo. "Judicial assistant: current state of legal regulation and review of court practice." Yearly journal of scientific articles “Pravova derzhava”, no. 32 (2021): 323–30. http://dx.doi.org/10.33663/0869-2491-2021-32-323-330.
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Patronage service(executive support service)is a type of service and employment relations that arise, change and terminate to ensure effective, proper and quality performance of their duties by officials who are legally entitled to have a patronage servant. The term “patronage” comes from “patronatus” in Latin- the state or rights of the patron. In the national legislation, the patronage service is a quite new category and was first introduced in 1993 with the adoption of the Law on Civil Service, and therefore has no old traditions. The change in the status of the patronage service in Ukraine indirectly indicates its formation. There is no single approach to the principles of patronage service in foreign countries, for example, in Italy and Germany patronage service does not stand out as a separate concept, but such kind relationships are included in the public service, while in Australia, Britain, Georgia, Canada, Lithuania and Poland patronage service conceptually stands out as a category of public service with a number of special rules. The establishment of a patronage service in Ukraine was an objective necessity and today it operates in the system of legislative, executive and judicial branches. The labor functions of patronage service employees are directly correlated with the labor functions of public law official to whom they are assigned (subordinated). The patronage service includes advisers, assistants, commissioners, press-secretaries of the President of Ukraine, employees of the secretariats of the Chairman, First Deputy Chairman and Deputy Chairman of the Verkhovna Rada of Ukraine, employees of patronage services of the Prime Minister of Ukraine and other members of the Cabinet of Ministers of Ukraine, advising assistants of People's Deputies of Ukraine, judicial assistants and scientific advisers to judges of the Constitutional Court of Ukraine, judicial assistants, advisers to the Chairman of the Supreme Court and chairmen of cassation courts, as well as positions of patronage servants in other state bodies. At the same time as for judiciary, part 4 of Article 92 of the Civil Service Law (2015) states that the specifics of patronage service in courts, bodies and institutions of the judicial system are determined by the legislation on the judiciary and the status of judges. Judicial assistants are an integral part of the judiciary. Despite their legal status, whether civil or patronage servants, the lion's share of work is performed by judicial assistants. It can be concluded, directly or indirectly, that effective work of a court or a judge is not possible without the effective work of judicial assistants (judges' offices) and this interdependency is obvious. It should also be noted that a significant number of assistants later become judges, or if we take a look at the biographies of judges of all levels we can find out that many of them took their first steps in the legal profession as judicial assistants. This might lead to the conclusion that “judicial assistants environment” is a kind of a personnel reserve of the judiciary.
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Wendel, Mattias. "The Fog of Identity and Judicial Contestation: Preventive and Defensive Constitutional Identity Review in Germany." European Public Law 27, Issue 3 (August 1, 2021): 465–96. http://dx.doi.org/10.54648/euro2021022.
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This article deals with constitutional identity review by the German Federal Constitutional Court (FCC). While identity review is often discussed merely as an instrument of judicial contestation by which the FCC challenges the European Court of Justice and its stance on the primacy of EU law, this article shows that both the aim and the effect of identity review go far beyond judicial conflict. In fact, identity review produces significant preventive and deterrent effects on (national) EU policies, which come into play well before any judicial conflict. By means of preventive identity review, the FCC has created a fog of identity, a dark field of potential unconstitutionality, which considerably limits the scope of policy choices in advance and even irrespective of whether or not these policies would ultimately be judged to be unconstitutional. As for the defensive dimension of identity review, the article addresses the complexity of the (too often simplified) conceptual relationship of identity review to other modes of review such as ultra vires review and the Solange case law. It shows that identity review has gradually become the conceptual heart of the FCC’s defensive triad. Identity review, constitutional identity, fog of identity, German Federal Constitutional Court, preventive and defensive identity review, eternity clause, principle of democracy, NGEU, European Arrest Warrant III, PSPP, Unified Patent Court, Right to be forgotten I and II, Banking Union, Egenberger
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Williams, Kieran. "Judicial Review of Electoral Thresholds in Germany, Russia, and the Czech Republic." Election Law Journal: Rules, Politics, and Policy 4, no. 3 (September 2005): 191–206. http://dx.doi.org/10.1089/elj.2005.4.191.
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Ohler, Amelie, Marjan Peeters, and Mariolina Eliantonio. "How to Represent the Silent Environment? An Update on Germany’s Struggle to Implement Article 9 (3) of the Aarhus Convention." Journal for European Environmental & Planning Law 18, no. 4 (December 2, 2021): 370–89. http://dx.doi.org/10.1163/18760104-18040004.
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Abstract With Germany’s signature to the Aarhus Convention in 1998, the country committed to strengthening the legal position of environmental Non-Governmental Organisations (eNGOs). Since, traditionally, in Germany, “public interest litigation” was legally impossible, the country had to consider fundamental changes to its system of judicial review. More than 20 years later, the German implementation of Article 9(3) of the Aarhus Convention (ac) has seen several amendments, but is still cause for controversy. Despite Germany’s prolonged efforts to adapt its legislation, there are, currently, two admitted complaints concerning Germany’s system of legal standing of eNGOs waiting for a (final) decision by the ac Compliance Committee, while several cjeu judgments have clarified the much-needed interpretation of Article 9(3) ac particularly also in view of the notion of effective judicial protection. These developments, together with scholarly criticism, indicate a need for further legal change in the German approach.
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Sadurski, Wojciech. "Judicial Review in Central and Eastern Europe: Rationales or Rationalizations?" Israel Law Review 42, no. 3 (2009): 500–527. http://dx.doi.org/10.1017/s0021223700000704.
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Constitutional judicial review in Central and Eastern Europe has become an entrenched and powerful factor in the politics and constitutional life of these countries; indeed, it would be impossible to give even a rough account of these new democracies without bringing constitutional courts into the picture. For all their importance and activism, their introduction had not been preceded by any thorough debate concerning the merits and demerits of the model transplanted from Western Europe—especially, from Germany—and the developing jurisprudence of the courts was strangely silent about the grounds and the limits of the courts ‘legitimacy, especially when replacing parliamentary choices on rights implicating matters with the courts’ own views about the proper articulation of vague rights-provisions. This Article explores some of the reasons and consequences of this silence.
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MAIER, CLARA. "THE WEIMAR ORIGINS OF THE WEST GERMAN RECHTSSTAAT, 1919–1969." Historical Journal 62, no. 4 (August 29, 2019): 1069–91. http://dx.doi.org/10.1017/s0018246x19000323.
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AbstractThe article explores the key components of the political project of West Germany and the role of the Rechtsstaat within it. It shows how the German Federal Republic developed a specific reading of the rule of law as an order founded on basic rights as supra-legal values and judicial authority, which had to be defended even against democratic government. This did not signify a departure from the constitutional theory of the Weimar period, as constitutional lawyers such as Gustav Radbruch and Carlo Schmid claimed at the time. Instead, the decisive innovations in constitutional thought stemmed from the Weimar era. Judicial review and basic rights had been instruments in a political and legal struggle over the social question and the boundaries of democratic decision-making in the 1920s. They had been invoked by conservative lawyers such as Carl Schmitt and been the subject of a substantial critique mounted by social democrat interpreters of the Weimar Constitution such as Hermann Heller and Franz Neumann. As such the Rechtsstaat, which is so strongly associated with the renewal of German democracy, carries with it a tradition of legal thought which systematically and successfully expanded judicial power to the detriment of the legislature and democratic action.
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Sidharta, Noor, Sudarsono Sudarsono, I. Nyoman Nurjaya, and Bambang Sugiri. "Judicial Preview on the Bill on International Treaty Ratification." Constitutional Review 3, no. 1 (August 2, 2017): 24. http://dx.doi.org/10.31078/consrev312.
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This research is aimed to find and introduce a new idea on the state administration, which has implications on the international treaty ratification procedure followed by Indonesia and additional authorizations of the Constitutional Court of the Republic of Indonesia. The judicial preview in this research is an international treaty examination procedure by the Constitutional Court before an international treaty is transformed into a law, i.e. such international treaty is a Bill. The judicial preview shall have different terms in each country, such as Review ex ante, abstract review, judicial review. This procedure is applied when an international treaty has not been validated as a country’s national law. The benefits of a judicial preview shall be a solution to connect an ambiguity between the state administrative law and international law. The judicial preview is also the inter-state institutions real check and balance on the international treaty. Out of benchmarking results of four countries following the monism doctrine, i.e. Russia, Germany, France, and Italty and two countries following the dualism doctrine, i.e. Hungary and Ecuador, several additional authorizations of the Constitutional Court shall be summarized, i.e. via the Amendment of 1945 Constitution of the Republic of Indonesia and/or regulations via laws. If both manners are not possible, the Constitutional Court may apply the judicial preview as a state administrative practice. An international treaty draft, which has passed through the judicial preview, may not be submitted to the Constitutional Court to be performed a judicial review, unless 5 (five) year-period has passed since the bill is enacted as a law.
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Panara, Carlo. "The Enforceability of Subsidiarity in the EU and the Ethos of Cooperative Federalism: A Comparative Law Perspective." European Public Law 22, Issue 2 (April 1, 2016): 305–31. http://dx.doi.org/10.54648/euro2016020.
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In this article, I will tackle the issue of the enforceability of subsidiarity in the EU and, more specifically, I will deal with the following questions: if and to what extent subsidiarity is justiciable; if the full justiciability of subsidiarity would be politically sustainable; and if there are any alternatives to the judicial enforcement of subsidiarity. I will argue that subsidiarity is justiciable, even though its judicial enforcement should be limited to particular situations. I will also argue that full justiciability of subsidiarity would be politically unsustainable in the long run and that a balanced combination of judicial review, procedural arrangements and political cooperation is the only alternative to an all-encompassing judicial enforcement of subsidiarity. In tackling this issue, I will use a comparative law approach in that I will make extensive reference to the legal systems of Germany and Italy.
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Sun, Jeong-Won. "Comparative study about judicial review of exactions in Germany and USA, and its implication." ADMINISTRATIVE LAW JOURNAL 50 (August 31, 2017): 1–27. http://dx.doi.org/10.35979/alj.2017.08.50.1.
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Grimm, Dieter. "Constitutional Adjudication and Democracy." Israel Law Review 33, no. 2 (1999): 193–215. http://dx.doi.org/10.1017/s0021223700015971.
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Constitutional adjudication is as old as democratic constitutionalism. But for a long period of time, the United States of America remained alone in subjecting democratic decision-making to judicial review. While constitutions had become widely accepted already in the 19th century, it took almost two hundred years until constitutional adjudication has gained world-wide recognition. In the 19th century, only Switzerland entrusted its Supreme Court with competencies in the field of constitutional law, yet, not including review of federal legislation. All other attempts to introduce constitutional adjudication failed. This is also true for Germany where the constitution of 1849 had provided for judicial review in an ample manner. But the constitution adopted by the revolutionary Paulskirchen Assembly did not enter into force because the monarchs refused their consent after the revolution had been put down.
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Diakonova, Maria O., and Polina D. Pechegina. "Jurisdictional and Non-jurisdictional Forms of Patent Rights Protection: Russian and Foreign Experience." Russian Journal of Legal Studies (Moscow) 9, no. 2 (July 18, 2022): 57–64. http://dx.doi.org/10.17816/rjls108412.
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The features of patent disputes determine the variety of mechanisms for their consideration and resolution. A review of the Russian and foreign experiences (Germany, Norway, United States, France, Sweden, Japan) show the applicability of various forms of patent rights protection, including administrative and judicial.
Administrative bodies that protect patent rights generally include divisions of patent offices and other executive authorities.
In the judicial systems of the states under review, special judicial structures function in the nature of courts with general competence to consider civil cases, while specialized courts for the protection of intellectual property rights including patents have been created.
The authors conclude that in the modern period, the arbitration and mediation of patent disputes are becoming increasingly widespread, offering a number of advantages, including confidentiality of the case and the necessary level of specialization of arbitrators (mediators). At the same time, however, it is hindered by the lack of uniformity in resolving the issue of the arbitrability of patent disputes.
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Chirninov, Aldar Munkozhargalovich. "The impact of procedural aspects of constitutional control upon the style of argumentation: comparative research." Право и политика, no. 9 (September 2020): 33–46. http://dx.doi.org/10.7256/2454-0706.2020.9.33730.
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The article examines the procedural aspects of constitutional review that affect the style of constitutional reasoning. The author identifies and analyzes the rules of judicial review of legislation that determine the design of argumentation techniques, using the experience of Russia, Australia, Austria, Germany, Israel, Spain, Italy, Canada, the United States, Taiwan, France, and South Africa as an empirical basis for research. The study suggests a set of such comparison criteria as model of constitutional review, specific rules of procedure, including the way the judges put questions to the parties, availability of written pleadings on a court’s website, tradition of structuring a judgment, the number of judges on a panel, collegial mode of the judicial decision-making, and possibility to express a dissenting opinion. Referring to the notion of argumentative style and identifying the correlation between specific rules of procedure and argumentation patterns arising in the practice of constitutional litigation, the author outlines the advantages and disadvantages of certain normative parameters of judicial review. Overall, the article concludes that the argumentative style is being shaped not only by procedural rules but also by legal traditions that dominate in a particular state since the appropriateness and suitability of argumentation strategies for constitutional review largely depend on their compatibility with the nature of legal thinking.
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Kombos, Constantinos. "Constitutional Review and the Economic Crisis: In the Courts We Trust?" European Public Law 25, Issue 1 (March 1, 2019): 105–33. http://dx.doi.org/10.54648/euro2019007.
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A reflection on the constitutional effects of the economic crisis is now both possible and useful. The paper assesses the judicial reaction to the national and EU measures introduced for containing the economic crisis. The focal point of analysis is the intensity of review and the judicial justifications given during that period. The working hypothesis is that the jurisprudence is characterized by the utilization of the ‘crisis vocabulary’, by the application of a low intensity review yardstick, by the application of a narrower in scope version of the principle of proportionality and by the wide margin of discretion recognized for the decision-maker. The analysis concludes that the jurisprudence was not uniform; significant differentiations exist both in approach and in the impact of the relevant case law on the respective legal order. The courts are divided between those of Member States and supranational courts (CJEU and ECtHR). The CJEU approached the matter in jurisdictional terms and formalistically, thus placing the burden on the national constitutions. The Strasbourg court applied the margin of appreciation doctrine, thus limiting review to cases where the impact of the legislative measures resulted in danger to survival. On the other hand, the national courts are classified as either ‘lenders’ (Germany) or ‘borrowers’ (Greece, Portugal and Cyprus). Constitutional review in fuller effect can be found in the German example, while in the case of ‘borrowers’ the national courts faced a moral and existential dilemma. The result was that crisis laws were approached as requiring light review, thus transforming national legal orders and unsettling the equilibrium of constitutional coexistence. National constitutional orders were transformed and the courts were placed in the impossible position of adjusting constitutional review to the economic needs. During the crisis, pragmatism became the new norm.
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Forsyth, Christopher. "ARTICLE 6(1) OF THE EUROPEAN CONVENTION AND THE CURATIVE POWERS OF JUDICIAL REVIEW." Cambridge Law Journal 60, no. 3 (November 21, 2001): 441–92. http://dx.doi.org/10.1017/s0008197301231195.
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The European Convention on Human Rights and Fundamental Freedoms makes no mention of any right to procedural justice in the making of administrative decisions. Any protection for such rights must be found in Article 6(1) which provides that in the determination of their “civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. But Article 6(1) was originally intended to apply to the determination of private law rights only and not to public law matters (see Le Compte, Van Leuven and De Meyere v. Belgium (1981) 4 E.H.R.R. 1, 36 (Sir Vincent Evans, dissenting); Konig v. Germany (1978) 2 E.H.R.R. 170 (Matscher J., dissenting)). The article plainly envisages judicial proceedings, and there are obvious difficulties in applying it straightforwardly to administrative proceedings.
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Pulzer, Peter. "Votes and Resources: Political Finance in Germany." German Politics and Society 19, no. 1 (March 1, 2001): 1–36. http://dx.doi.org/10.3167/104503001782173765.
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“Votes count,” Stein Rokkan asserted many years ago, “but resourcesdecide.”1 Political finance is one of the many arenas in which Alexanderand Shiratori’s “conflict between real inequalities in economicresources and idealized equalities in political resources” is fought out.2Yet the battleground is more complex than either of these authoritiessuggests. Votes are also a resource. They legitimate, and they can alsopunish, if those who cast them think that economic resources arebeing used unreasonably. Above all, the determination of electoraloutcomes involves players others than voters and moneyedinterests. In almost all modern democracies there are referees ofvarying effectiveness. In general, the referee is “the state,” but muchdepends on the organs through which the state operates. Governmentsare not necessarily neutral agents; they and the parliamentsthat legislate on the regulation of political finance may merely reflectthe interests of dominant or established parties. Political finance can,however, also be regulated, as for instance in Germany or the UnitedStates, by judicial review. In addition the media almost everywhereplay an unpredictable role as spectator, watchdog or interested participant.
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Wendel, Mattias. "Lisbon Before the Courts: Comparative Perspectives." European Constitutional Law Review 7, no. 1 (February 2011): 96–137. http://dx.doi.org/10.1017/s1574019611100061.
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Lisbon decisions of the constitutional courts in Austria, the Czech Republic, France, Germany, Hungary, Latvia and Poland from a comparative perspective – Democracy, sovereignty and identity – Permeability of national and supranational law – Ratification of the Lisbon Treaty and its constitutional foundations – Procedural background and legal outcome of the Lisbon decisions – Differences of institutional self-conception – Parliamentary responsibility for integration – Prior parliamentary assent to the future application of ‘dynamic treaty provisions’ – Different conceptions of national and multi-levelled democracy – Popular vote – Constitutional limits to European integration – Limits indicating the necessity of an amendment and limits protecting the inalienable substantial core of a constitutional order – German Bundesverfassungsgericht only court in Europe spelling out an eternity clause in a detailed, catalogue style manner – Judicial restraint – Ultra vires and identity review – Article 4.2 TEU as an integration clause of EU law and not a derogation clause – Comparative dialectics
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Gignon, M., S. Paupière, O. Jardé, and C. Manaouil. "Victims of assault: a Europe-wide review of procedures for evaluating the seriousness of injuries." Medicine, Science and the Law 50, no. 3 (July 2010): 145–48. http://dx.doi.org/10.1258/msl.2010.010020.
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In France, victims of assault receive a medical certificate describing their injuries. This certificate must fulfil certain criteria because it plays a major role in the subsequent judicial proceedings – notably the establishment of a period of ‘total incapacity for work’, which determines the court in which the case will be heard. Determination of the duration of this period of incapacity is complex. We decided to review medical examination procedures for victims of assault in a number of other European countries (England and Wales, Belgium, Germany, Switzerland and Spain). Our study revealed that only in France do physicians have to make a quantitative assessment of injuries, which is supposed to reflect the extent of the injuries and the intensity of the violence – despite the difficulties this may pose. We discuss the relevance of this quantitative assessment.
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Issalys, Pierre. "Regards sur le droit administratif suisse." Les Cahiers de droit 19, no. 3 (April 12, 2005): 703–79. http://dx.doi.org/10.7202/042262ar.
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Looking at Swiss administrative law from a Quebec perspective, this paper outlines some aspects of the Swiss system that provide useful models or references for the discussion and resolution of current issues in Canadian and Quebec administrative law. These issues are identified as (1) the proliferation of independent administrative agencies, and the means to control or at least systematize the growth of such structures ; (2) the desirability and feasibility of enacting general standards of procedure for administrative action ; (3) the simplification of remedies in the field of judicial review of administrative action ; (4) the desirability and feasibility of allocating judicial review powers to a specialized court, either within or outside the Superior Court ; and (5) the desirability and form of a procedure allowing for political intervention in the decision-making process of independent agencies. In the light of these issues, the paper describes the allocation of review functions between administrative and judicial bodies in Swiss federal law. The structure and activity of the Swiss Federal Court (Tribunal fédéral), and especially of the division of the Court that deals with most administrative law cases, are outlined in some more detail. A short historical sketch leads to a discussion of the corresponding features of the law in some of the cantons, and to consideration of the special position given to social security matters in the general scheme of administrative law. The paper then focusses on administrative action itself, commenting on the most significant provisions in the Federal Administrative Procedure Act (Loi fédérale sur la procédure administrative) of 1968. Special attention is paid to the process of review within the administration, up to the level of the federal cabinet (Conseil fédéral). Corresponding provisions in the law of some of the cantons are also briefly discussed. The description of the federal review process is then completed by an outline of the procedure for judicial review of administrative action by the Federal Court (Recours de droit administrative). Finally, notice is again taken of the special position of social security as regards administrative procedure. The paper draws attention, in its concluding part, to the most interesting insights provided by Swiss law into the current problems of Canadian and Quebec administrative law. The growth of administrative tribunals has been brought under control by structural arrangements, especially in the field of social security. The introduction of general standards of procedure has brought greater uniformity and clarity, has emphasized the unity of administrative process including the review phase before administrative or judicial authorities, and has strenghtened the rule of law over government action. The existence of a single procedure to invoke judicial review eases access to the court. While in many cases review by the court is excluded, these exclusions have to be specific, and leave full opportunity for review within the administration, with adequate safeguards provided by the Administrative Procedure Act. Specialization occurs within the Federal Court, and does not involve a rigid separation between judges applying administrative law and judges applying other branches of the law, as in France or Germany. Finally, ultimate political control over certain types of decisions is admitted as a part of life in Swiss federal law, but is at the same time subjected to a quasi-judicial procedure which makes it an acknowledged source of administrative justice.
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Markard, Nora. "Migrationsverwaltungsrecht zwischen Beschleunigung und Effizienz." Die Verwaltung 52, no. 3 (July 1, 2019): 337–58. http://dx.doi.org/10.3790/verw.52.3.337.
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Migration law between acceleration and efficiency Efficiency and speed of decision making have been a recurrent theme of German administrative law reform since the 1970 s. Although migration law has long been the subject of acceleration efforts, this occurred largely outside the general efficiency discourse. In an effort to connect these two strands, this article first retraces the trends that the administrative efficiency discourse has undergone since the 1970 s and points out how the sectors of law driving it – environmental law, emission control, and economic regulation – as well as an economic paradigm have promoted an truncated understanding of efficiency as mere acceleration. In a second step, it shows that while the devaluation of procedure in the interest of speed does align with a German focus on subsequent judicial review, it neither does justice to the relevance of the procedure to the realization of fundamental rights, not to its specific performances: the development of substantive requirements, transparency, participation, legitimacy. Asylum law in particular has experienced a surge of acceleration measures since 2015, pushed by the consulting firm McKinsey. But its existential relevance for protection seekers and the particular dependency of the right to asylum on the asylum procedure require an especially rigorous examination. An efficiency concept geared merely toward acceleration cannot do justice to these specific challenges, as the McKinsey measures have demonstrated; the burden has simply been shifted on the courts. In its last part, this article therefore proposes a qualitative efficiency concept that bears in mind the entirety of the functions of the administrative procedure, takes into account the different requirements of the procedure in different sectors of law, and does not lose sight of the reciprocity between administrative and judicial procedure. Meanwhile, pilot studies from the Netherlands, Switzerland, and Germany show that a qualitatively efficient asylum procedure is not necessarily a slower or more costly procedure.
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Karazivan, Noura. "Diplomatic Protection: Taking Human Rights Extraterritorially." Canadian Yearbook of international Law/Annuaire canadien de droit international 44 (2007): 299–352. http://dx.doi.org/10.1017/s0069005800009048.
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SummaryThis article argues that states should have a limited obligation — and not only a privilege — to extend diplomatic protection to their nationals when they are facing violations of their most basic human rights abroad. The author addresses the current state of international law regarding diplomatic protection, with a focus on the International Law Commission's failed attempt to impose a duty on states to exercise protection in cases of jus cogens violations. A review of domestic case law, particularly in the United Kingdom, Canada, Germany, and South Africa, shows that while some courts recognize legitimate expectations to receive diplomatic protection, all are reluctant to exercise judicial review of a denial of diplomatic protection. The author nevertheless examines whether adherence to international human rights treaties could entail a positive obligation for states to exercise diplomatic protection in order to protect the human rights of their nationals that are ill-treated abroad.
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Kovač, Polonca. "Significance of and Comparative Trends in Procedural Regulation of Right to Information." Central European Public Administration Review 12, no. 2-3 (November 5, 2014): 31–45. http://dx.doi.org/10.17573/ipar.2014.2-3.a02.
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Any legal right is (more) efficiently pursued if sufficient procedural regulation supports its substantive setting. This article is dedicated to an analysis of procedural regulation of right to information (RTI) since its significance is increasing in terms of developing good governance and good administration within contemporary transparent, open and collaborative society. The comparative analysis of selected countries (USA, Ireland, Sweden, Austria, Germany, Slovenia, Croatia) included herein proves that selected procedural institutions, such as time limits and an appeal to an independent body or judicial review, contribute to a significantly higher level of implementation of the RTI in practice as also indicated by several international studies. In conclusion, the author recommends certain good practices, especially significance of RTI implementation in relation to different authorities in the context of administrative procedure guaranteeing constitutional and supranational transparency principles.
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Zhang, Chenguo. "The right of publicity in Chinese Law? A comment on the Michael Jeffrey Jordan case and comparative analysis with the US, UK, Germany, and the Asia Pacific." Queen Mary Journal of Intellectual Property 10, no. 4 (December 25, 2020): 441–60. http://dx.doi.org/10.4337/qmjip.2020.04.02.
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In Michael Jeffery Jordan v Chinese Trademark Review and Adjudication Board, the Supreme People's Court (SPC) set a precedent for foreign companies and celebrities enforcing their rights of publicity against malicious trademark registration in China. This article introduces the legal grounds of the SPC's deliberations on Jordan's claims and responds to the critiques of most Chinese commentators in the field of civil law. Deeply influenced by German law, mainland China's legal system strictly distinguishes between personality rights and property rights. Comparative analysis with the US, Germany, Japan, and Hong Kong indicates that different legal civilizations have developed different approaches to position the right of publicity logically in their legal systems. The Jordan decision indicates that the ‘right of the name’ is a prior right provided in Article 32 of the Trademark Law of the PRC. This article contends that the ‘right of the name’ as provided in the Chinese Anti-Unfair Competition Law differs from the ‘right of the name’ articulated in Article 110 of the General Principles of Civil Law (2017). The former concerns the commercial interest and property aspects of a celebrity's name, which is fairly similar to the right of publicity, while the latter regards the personality right. The further development of the right of publicity protection relies in mainland China on a consistent judicial practice.
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Bröhmer, Jürgen. "Economic Constitutionalism in the EU and Germany – The German Constitutional Court, the European Court of Justice and the European Central Bank between Law and Politics." Law and Development Review 12, no. 3 (October 25, 2019): 761–95. http://dx.doi.org/10.1515/ldr-2019-0043.
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Abstract The relationship between the European Union (EU) and its member states has recently been the subject of several legal proceedings in the German Federal Constitutional Court (GFCC) and the European Court of Justice. The backdrop to the underlying controversies were policies instituted by the European Central Bank (ECB) dealing with the economic and monetary situation in various member states in the context of the sovereign debt crises to influence interest rates, combat deflationary tendencies and keep inflation under but close to the ECB’s 2% inflation target. Especially so-called outright monetary transactions (OMTs) and the corresponding OMT-program and a particular high volume public sector asset purchasing program (PSPP) announced by the ECB have been controversially discussed. Legally, the controversies are about the prohibition for the ECB to finance debt held by the EU or member states (Article 123 TFEU) and about the delineation of economic policy (Article 119 et seq. TFEU), which lies in the hands of the members states, and monetary policy (Article 127 et seq. TFEU), which is exclusively in the hands of the ECB. The GFCC in its decisions propagated a restrictive approach emphasizing the role of the member states and pointing to the doctrines developed by it around ultra vires acts and so-called identity review. This paper attempts to shed some light on this controversy and argues that beyond the legal controversy lies a deeper problem of the relationship between judicial and political decision-making that the GFCC should exercise restraint in exercising its functions and remember its own doctrine of “open constitutional norms” developed in a different context but applicable here as well.
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김태오. "The right of last decision by the Communications Agency and judicial review - A closer look at the regulatory discretion of the Federal Administrative Court of Germany -." SungKyunKwan Law Review 26, no. 3 (September 2014): 107–42. http://dx.doi.org/10.17008/skklr.2014.26.3.004.
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Habibi, Dani. "Perbandingan Hukum Peradilan Tata Usaha Negara dan Verwaltungsgerecht sebagai Perlindungan Hukum Rakyat." Kanun Jurnal Ilmu Hukum 21, no. 1 (May 27, 2019): 1–22. http://dx.doi.org/10.24815/kanun.v21i1.12185.
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Permasalahan hukum yang akan dibahas dalam tulisan ini mengenai gambaran sistem Peradilan Tata Usaha Negara Jerman dan Peradilan Tata Usaha Negara di Indonesia. Sistem Peradilan Tata Usaha Negara Jerman pada hakikatnya sama dengan sistem Peradilan Tata Usaha Negara di Indonesia. Sistem tersebut dapat dilihat dari adanya jenjang sistem peradilan mulai dari tingkat pertama, tingkat banding, dan tingkat akhir atau kasasi. Selain itu akan diulas berkaitan dengan proses peradilan, dasar-dasar dilakukannya gugatan yang diajukan terhadap pemerintah serta cara pelaksanaan proses peradilan tata usaha negara di masing-masing negara. Metode penelitian adalah penelitian hukum normatif dengan pendekatan peraturan perundang-undangan dan perbandingan hukum. Tujuan dari penelitian ini untuk mengetahui sistem Peradilan Tata Usaha Negara baik di Indonesia maupun di Jerman serta mengetahui perbedaam sistem Peradilan Tata Usaha Negara baik di Indonesia maupun di Jerman serta melakukan suatu pembaruan sistem Peradilan Tata Usaha Negara di Indonesia sebagai bentuk suatu perlindungan hukum kepada rakyat A Comparative Law of Administrative Court and Verwaltungsrecht as a Form of Legal Protection to People Legal issues that will be discussed in this paper regarding the description of the Germany Administrative Court system and the Indonesia Administrative Court system. Generally, There are similarities between the Administrative Court system in Germany and in Indonesia. It can be seen from the level of the justice system starting from the first level, the appeal level and the final level or cassation. In addition, this paper will review the judicial process, the basics of lawsuit against the government and how to implement the state administrative court processes in each country. The research method is normative legal research with legislation and legal comparison approach. The purpose of this research is to find out the Administrative Court System and to know the difference between the Administrative Courts System both in Indonesia and in Germany and also to reform the Administrative Court system in Indonesia as a form of legal protection for people.
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Fedorenko, V., V. Kovalenko, and O. Gaidai. "PREHISTORY OF FORMATION OF FORENSIC INTELLECTUAL PROPERTY ANALYSIS IN THE CONTEXT OF FORENSIC ACTIVITY GENESIS IN UKRAINE (FROM THE TIME OF KIEVAN PRINCIPALITY TO THE FIRST WORLD WAR) (Review Article)." Theory and Practice of Forensic Science and Criminalistics 22, no. 2 (August 5, 2020): 126–45. http://dx.doi.org/10.32353/khrife.2.2020.10.
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Preconditions for emergence of forensic intellectual property analysis in Ukraine and abroad in the period from the 10th to the beginning of 20th century in the context of forensic science genesis are comprehensively analyzed in the article. The following sources of court proceedings of the Kyivan Principality (Russia) Epoch and the so-called “Dark ages” (in the 12th/14th centuries), as “Russkaya Pravda”, treaties of appanage princes with grand princes and between each other, charters and letters patent of princes, sudebniky, etc., along with the Statutes of Lithuania (16th century) and others are considered. It is argued that emergence of forensic science in Europe was linked to origin and nature of evidence in court proceedings. Forensic experts are involved when their findings become legitimate evidence for court in criminal and civil proceedings. It is emphasized that for the first time the procedural status of a forensic expert as the “third party expert” is regulated in the Statute of Criminal Procedure of the Russian Empire of 1864 (Articles 112, 690, 691, 692, 698, etc.).
It is noted that the establishment of forensic activities in the field of intellectual property was preceded by legitimization of intellectual property rights in Austria-Hungary, England, Spain, the Netherlands, Germany, Russia, the USA, France in the 18th century, as well as the establishment of administrative and judicial mechanisms for its protection. At the same time, the practice of involving experts in consideration of copyright disputes over scientific, literary and artistic works, inventions, etc., was uncommon in the 19th century.
In 1913, offices of forensic science under the prosecutors of the Kyiv and Odessa Judicial Chambers, which contributed to institutionalization of forensic activities and professionalism of forensic experts were established. These circumstances created conditions for initiation of forensic intellectual properrty analysis. However, the First World War pushed the litigation over the right to intellectual property to the background.
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Ermakova, E. P. "LAWSUITS AGAINST GOVERNMENTS AND PRIVATE COMPANIES OF EUROPEAN COUNTRIES OVER CLIMATE PROTECTION UNDER THE PARIS AGREEMENT 2015 (UK, NETHERLANDS, GERMANY AND FRANCE)." Вестник Пермского университета. Юридические науки, no. 49 (2020): 604–25. http://dx.doi.org/10.17072/1995-4190-2020-49-604-625.
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Introduction: the article analyzes claims for climate protection under the Paris Agreement 2015 considered by state courts of the UK, the Netherlands, Germany and France. It is proved that the number of legal cases, both against governments and private companies, related to protection of climate from changes is steadily increasing. Applicants rely on constitutional and human rights laws in their efforts to hold governments accountable for tackling climate change issues. Climate litigation is also influenced by new scientific discoveries and developments in the field of climate change, which allow plaintiffs to more accurately determine the environmental impact of projects, policies and laws. In this regard, a comparative analysis of the above issues appears to be of key importance. Purpose: based on the analysis of judicial precedents, scientific sources and normative acts, to form an idea of the new category of court cases in European countries – lawsuits against governments and private companies aimed at protecting the climate from changes under the Paris Agreement 2015. Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic; special scientific methods (legal-dogmatic and the method of interpretation of legal norms). Results: the conducted study showed that in Europe, over the past few years, the concept ‘protecting the climate from changes’ has shifted from the political to the legal sphere – active citizens and environmental organizations began to sue their governments and private companies based on the provisions of the Paris Agreement 2015, international documents and national legislation. In general, state courts of European countries (Germany, the Netherlands) have arrived at a conclusion that the governmental climate policy is subject to judicial review and must comply with the government’s responsibilities to protect fundamental rights in accordance with the Constitution. Conclusions: all lawsuits filed to protect the climate from changes under the Paris Agreement 2015 can be divided into two categories: a) lawsuits filed against governments; b) claims filed against private companies. Among the lawsuits filed against individual governments, the most successful has been the ‘Urgenda’, case, with the decision in this case confirmed by the Supreme Court of the Netherlands in December 2019. Claims aimed at ensuring that private companies also comply with the terms of the Paris Agreement (although not being parties to it) can be called a new type of lawsuit: most of these cases are not completed and are pending before state courts. Such lawsuits are directed against private companies that pollute atmosphere the most – Shell, Total, etc.
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Awanisa, Agsel, Yusdianto Yusdianto, and Siti Khoiriah. "The Position of Constitutional Complaint in the Constitutional Court of the Republic of Indonesia." Pancasila and Law Review 2, no. 1 (April 29, 2021): 61–78. http://dx.doi.org/10.25041/plr.v2i1.2308.
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The purpose of this research is to determine the constitutional complaint mechanism based on comparisons in other countries, practices, and adaptation of constitutional complaints under the authority of the Constitutional Court of the Republic of Indonesia. Many cases with constitutional complaint substance have been submitted to the Constitutional Court of the Republic of Indonesia even though they don’t have this authority. This research uses a normative legal research method using a statutory approach, a conceptual approach, a comparative approach, and a case approach. This research indicates that the constitutional complaint mechanism in Germany, South Korea, and South Africa has been well implemented. In practice, cases with constitutional complaint substance are filed to the Constitutional Court of the Republic of Indonesia by changing the form by using the legal means of a judicial review, such as case number 16/PUU-VI/ 2008, case number 140/PUU-XIII/2015 and case number 102/PUU-VII/2009. Due to the consideration of the structure, substance, and culture of law, adaptation of constitutional complaint within the authority of the Constitutional Court of the Republic of Indonesia needs to be carried out by amending Law Number 24 of 2003 jo. Law Number 7 of 2020 concerning the Constitutional Court.
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Filatova, Maria. "Apology of Freedom: Book review: Nussberger A. The European Court of Human Rights. Oxford: Oxford University Press, 2020." Meždunarodnoe pravosudie 11, no. 1 (2021): 153–63. http://dx.doi.org/10.21128/2226-2059-2021-1-153-163.
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The subject of this review is the book written by a famous German legal scholar, Angelika Nussberger, whose name is well known to the Russian legal academic community. Professor Nussberger was a judge in respect of Germany at the European Court of Human Rights from 2011 to 2019, and Vice-President of the Court in 2017–2019. The book, published in Oxford University Press, is a part of their series “Elements of International Law”, which explains its structure and comprehensive approach to the subject. The book embraces all important relevant topics of the Court’s activities, from its conception and the beginning of its activities as an optional jurisdiction up to its transformation to the most authoritative international court in the area of human rights protection. Special attention is paid to the Court’s role in the creation of human rights culture in Europe and worldwide. Other topics covered by the book include its organization and procedure before the Court; the evolution of the Court’s methodology; interaction with other «actors» on human rights law field (national and other international courts); enforcement of the Court’s judgments and its efficiency; the Court’s future: main challenges and perspectives. The book offers a very focused and concentrated narrative combined with a deep analysis and very personal sight of a judge at the Court and of a distinguished scholar. It may serve as a very useful source of information about the Court’s judicial doctrines, vividly discussed by the ECtHR observers. The author gives her own view on these doctrines and reveals many problematic aspects of their application by the Court. The book is abundant in illustrations how the doctrines in question have evolved. The special character of the book is that it combines the overview of the Court’s procedure (composition of the bench, the Registry’s tasks, interaction with the Committee of Ministers related to the execution of judgments) with the analysis of the Court’s role in the modern international law development. It distinguishes the book from other works on the Convention and the European Court of Human Rights. The extensive list of references on the Court and the Convention system makes the book a perfect guide on the matter for specialists and students. It may be concluded that the book will enter the «golden fund» of international law doctrine, and its translation into Russian would be very useful for the Russian legal audience.
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Palguna, I. Dewa Gede. "Constitutional Complaint and the Protection of Citizens the Constitutional Rights." Constitutional Review 3, no. 1 (August 2, 2017): 1. http://dx.doi.org/10.31078/consrev311.
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Constitutional complaint is one of important issues to be dealt with by severral countries issues adopting constitutional court in their national legal system and the Federal Constitutional Court Germany (Bundesverfassungsgericht) is considered by expert as one of the most advance mechanism among countries in dealing with the issue. Generally speaking, constitutional complaint can be described as a complaint or lawsuit filed by an individual citizen who deems his or her constitutional right (s) has been violates by act or omission of public institution or public official. Mostly, such a complaint can only be filed it theere is no other legal remedy available or all legal remedies available have been exhausted. The Constitutional Court of The Republic of Indonesia however is not entrusted with authority to hear constitutional complaint case not withstanding the fact that statistical data on judicial review cases filed by many petitioners before the Court were substantially constitutional complaint issues. It means that, empirically giving the Court to hear constitutional complaint case is necessarily pivotal and theoritically, the Court has the very foundation to be entrusted withq such authority. Considering the complex mechanism to amend the Constitution of 1945, which exhaustively deserible the court’s authorities, this article offers the lawmaker a theoretical insight tio give the Court a limited authority to hear constitutional complaint case by the way of amending the law on Constitutional Court.
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KNIEPER, ROLF. "Das konzept der handlungsfreiheit im ukrainischen und deutschen zivilrecht." Право України, no. 2019/02 (2019): 60. http://dx.doi.org/10.33498/louu-2019-02-060.
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The article focuses on researching into freedom of action and freedom of contract in civil law of Ukraine and civil law of the Federal Republic of Germany. The author makes a detailed study of the provisions of civil legislation of Ukraine, namely Articles 6 and 627 of the Civil Code of Ukraine (Ukraine’s CC) which define the essence of the principle of freedom of contract. It is established that the only limits of freedom of contract are peremptory norms which may establish special requirements in respect of the parties to particular contractual relations, and also restrictions ensuing from the need to respect the rights and interests of third parties, as well as public order. Based on the findings of the research, the author draws the conclusion that freedom of action is wider than freedom of contract, since it also covers, for example, unilateral legal transactions, such as freedom to establish the will and etc. At the same time, “freedom of contract” refers to a range of potential opportunities of the parties to particular contractual relations. The author asserts that in terms of the issues under research German civil law has no fundamental differences from Ukrainian civil law. It is noted that freedom of action and freedom of contract, and also their limitations prescribed by the German Civil Code (BGB) are generalized by the concept of private autonomy (as a rule, it is a component of free development of an individual and general freedom of action). At the same time, the author believes that in the German Civil Code there is no equivalent to Articles 6 and 627 of Ukraine’s CC, since BGB does not contain any provisions defining the principles and limits of freedom of contract, freedom of action and private autonomy. An attempt is made to present the juridical, historical and legal philosophical prerequisites of private freedom of action and private autonomy, and also the dangers which threaten them with digitalization. The author believes that the objective of finding implementation of subjective freedoms in private autonomy of civil law, at the same time discarding any reflections on efficiency, is inconsistent with the current state of development of society and the legal system. Particular attention within the framework of private-law regulation is given to the category of “efficiency”. The author notes that currently there is a trend towards perception by the scientific community, the legislator and judicial authorities of the basic provisions of the doctrine which is referred to as “economic analysis of law”. In the author’s opinion, objectivity and development of the concept of reasonable participant to legal relations which lawyers and judicial authorities base their own rational ideas on, do not contradict the foundations of private autonomy. Particular attention is given to development of smart-contracts, which the author believes to help the participants to civil relations to get rid of distrust of the counterparty, and also to avoid the insecurity of subjective rights and interests, information asymmetry, and etc. The article provides a review of the legal nature of the smart-contract, its characteristics and specific features. The author notes the rapid development of the blockchain technology and analyzes its impact on the development of civil law.
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Uroshleva, Aleksandra. "Evolutionary approach in reasoning practice of constitutional justice." Sravnitel noe konstitucionnoe obozrenie 29, no. 6 (2020): 115–40. http://dx.doi.org/10.21128/1812-7126-2020-6-115-140.
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The author examines the essence and characteristic features of the evolutionary interpretation in constitutional review bodies decisions and concludes given the relationship between processes of argumentation and interpretation, as well as definite characteristics and trends in the application of the evolutionary interpretation in different countries, that it is more appropriate to talk about the evolutionary approach in argumentation, not about a separate method of interpretation. An evolutionary constitutional interpretation, as it is stated in the article, does not necessarily mean going beyond the literal text of the basic law. A literal (textual) interpretation and an evolutionary approach are combined phenomena of different nature; they are allocated based on various criteria – the source (orientation on the text) and the socially adaptive result, respectively. The value of the evolutionary approach is associated with the possibility of “adjusting” constitutional norms to real social canvas without making changes to the text of a constitution. The author shows using the case law examples that an evolutionary interpretation can be expansive, that is aimed at increasing the scope of constitutional regulation (“filling” constitutional norms with “new” (additional) content, picking out new human rights, increasing their level of protection), and restrictive, that is narrowing the scope regulated and (or) protected by a constitution (reducing level of human rights guarantees or subject area of constitutional regulation). Considering through the prism of specific constitutional justice cases such doctrines as of a “living constitution” in the United States of America, a “living tree” in Canada and the concept of “judicial law development” in Germany, the author comes to the conclusion that an independent concept of the evolutionary approach in legal reasoning has not been formed yet in the Russian practice of constitutional justice. In this regard, it seems to be perspective direction to develop such a concept, especially in the context of a possibility of combining the evolutionary approach with original interpretation. It seems that despite the fact that the problem of judicial activism is not now a problem of current urgent interest in Russia, the constitutional amendments of 2020 have actualized the potential for an evolutionary interpretation of certain constitutional provisions.
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Bichkov, Іgor. "The Kelsen model of constitutional jurisdiction as the theoretical basis of the European system of constitutional justice." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 131–36. http://dx.doi.org/10.36695/2219-5521.1.2020.25.
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The article is devoted to the study of the content of the model of constitutional jurisdiction proposed by H. Kelsen, which at one time actually became the theoretical basis of the modern European system of constitutional justice. It is stated that the model formulated by a well-known Austrian law theorist not only envisaged instrumental-institutional proposals for the creation of a new public authority, but also embodied the definite concept of common sense of law defined by Kelsen, which was based on the ideas of a hierarchical legal system acts of the Constitution as the law of the highest legal force. It is substantiated that the model proposed by H. Kelsen substantially outstripped the existing legal reality and was used almost in its purest form by most European countries, and in particular was directly reflected in the domestic model of constitutional jurisdiction.
It is noted that, according to Kelsen's concept in a number of papers, in particular in the Judicial Review of Legislation: A Comparative Study of the Austrian and American Constitutions, the constitutionality of legislation can be ensured in two separate ways, both of which were enshrined in the Austrian Constitution of 1920: the responsibility of the body that issued the unconstitutional norm and the non-application of the unconstitutional norm. Non-application of a constitutional rule could be achieved by giving law enforcement authorities the power to review the constitutionality of a rule they must apply in a particular case and refuse to apply it in that particular case, if there is reason to consider such a rule unconstitutional. A similar mechanism has actually been introduced in the United States. The fact that a law enforcement authority recognizes a general rule as unconstitutional and does not apply it in a particular case meant that that authority was empowered to revoke the general rule for a particular case, and only for a specific case, since the general rule as such (normative act) remains applicable and may be applied in other specific cases. The disadvantage of this fuse is that different law enforcement agencies may have differing views on the constitutionality of a law, whereby one authority can apply it as it considers constitutional, while another authority will refuse to apply it because it will see signs of unconstitutionality. The lack of unanimity in deciding whether a law is constitutional, that is, whether a constitution is violated, carries great danger for the authority of the constitution.
In most European countries, it is stated that H. Kelsen's concept was used almost in its purest form, with one exception: the powers to directly protect constitutional rights and freedoms were given to a separate judicial authority. The extension of the appropriate model of judicial constitutional control and the formation of constitutional courts fell in the second half of the twentieth century, when the need to prevent the return of Nazism caused a qualitatively new level of attention to the phenomenon of constitutional justice. The formation of new post-war constitutional-democratic regimes in Germany, Italy, Austria, and later in Spain and Greece, provided for the creation of a mechanism by conferring on the constitutional courts powers to protect constitutional rights and freedoms from usurpation of public power.
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Gritsenko, Elena. "Direct Effect of the Constitution: Specific Features of the Russian Model from a Comparative Perspective." Sravnitel noe konstitucionnoe obozrenie 30, no. 5 (2021): 76–117. http://dx.doi.org/10.21128/1812-7126-2021-5-76-117.
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The differences in the interpretation of the direct effect of a constitution are mainly caused by the peculiarities of understanding the essence of the constitution and the rule of law, the relation between the national, supranational and international law in a legal system, the specifics of the perceived constitutional concept of basic rights, the limits of private autonomy and the action of constitutional rights in public and private relations. Furthermore, a model of constitutional review and the national judicial system play a key part. The American approach, based on the distinction between common law and constitutional law, creates difficulties in the constitutionalization of the common law. These problems, along with the peculiarities of American federalism, are reflected in the state action doctrine as a tool outlining the mechanisms and limits of constitutional rights and the state’s duties to protect them. However, the solution of the question about the horizontal application of the Constitution depends, rather, not on objective criteria, but the discretion of the court. A different model of the direct action of the Constitution and basic rights has been developed in the German legal system. The Federal Constitutional Court of Germany opened the way for the constitutionalization of sectoral legislation, as well as for the recognition of the mediated horizontal action of constitutional rights in private relations. Post-socialist states developing within the continental legal family, mostly without any reservations, accepted the idea of direct action of the Constitution and fundamental rights in vertical and horizontal relations. This is largely due to the socialist tradition: the Constitution is not perceived as an act addressed to the state, but is regarded as an act addressed to the whole society. In this regard, the current Russian Constitution enshrines the universal obligation for public and private actors to observe the Constitution and allows it to be applied in private relations. The principle of the direct effect requires the court to detect possible conflicts and solve them, using available constitutional means. This mechanism of courts applying the Constitution still needs fine-tuning. In this regard, the issue of ensuring that courts apply the Constitution continues to be a challenge for Russia.
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Ilkov, Vasyl. "The Supreme Court's decision in the model case as a judicial precedent in the legal system of Ukraine." Slovo of the National School of Judges of Ukraine, no. 4(29) (February 11, 2020): 5–16. http://dx.doi.org/10.37566/2707-6849-2019-4(29)-1.
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The publication deals with the concept and features of the Supreme Court's decision in the model case as a judicial precedent. The judicial precedent in the legal system of Ukraine is the Supreme Court's decision in an exemplary case, which contains conclusions on the application of the rules of law and a formulated rule. After the adoption of the new version of the Code of Administrative Judiciary of Ukraine and the direct introduction of the mechanism of decision-making in the model case and the actual systematic review by the courts of first instance of numerous typical cases on the basis of the model case, it can be concluded that in the legal system judicial precedent becomes a source of law in the administrative proceedings. In the countries of the Anglo-American system of law, the Supreme Court ensures the unity of the case law at the highest level. The precedent system is vertical and requires judges to adhere to the decisions of high courts. Today in Ukraine, belonging to the countries of the Romano-German legal family, one can already speak about the official use of precedents in the administrative process, namely the informal application of precedents in the decisions the Supreme Court in model cases. The main features of judicial precedent are the fact that it is created when considering a particular case, combines individual-legal and normative-legal features, dynamism and a high degree of specification of the legal norm, which is objectified in the judicial precedent. Such decisions are always reasoned, authoritative and public. A model decision contains the circumstances of a model case, which determine the typical application of substantive law and the procedure for applying such rules by courts and the subject of power, as well as the decisions in exemplary cases substantially optimize, refine and facilitate the judicially procedure in typical cases by a regional courts. Key words: court precedent, model case; a typical case; Supreme Court decision in an exemplary case, source of law.
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Lind, Yvette. "Initial Findings on How Individual Taxpayers May Indirectly Influence Tax and Spend in Sweden, Germany and the United States." Intertax 48, Issue 5 (May 1, 2020): 482–97. http://dx.doi.org/10.54648/taxi2020045.
Full textAbstract:
Ongoing globalization and increased taxpayer mobility not only exacerbate the current inadequacies when allocating taxing rights but also intensify already existing tax competition between states as individual states have begun to use formal citizenship as a tax incentive when attracting high-income earners, highly skilled workers and high-net value individuals. (A. Christians, Buying in: Residence and Citizenship by Investment, 62 St. Louis U. L.J. 51 (2017)). This new tax incentive challenges the traditional perception of formal citizenship as the basis for bestowing political rights and benefits as it may be argued that this practise erodes its value and meaning in addition to emphasizing the differentiation between individuals regarding their state of origin (particularly noticeable when considering EU citizens compared to non-EU citizens) and economic status. At the present time, mobile individuals may, as a result of disparities between tax allocations, formal citizenship and voting privileges, contribute financially to a state yet not be afforded the opportunity to exercise influence over their tax situation due to the lack of formal citizenship and voting privileges in said state. The group who may influence taxation and public spending (tax and spend) through voting, therefore, is not always the same as those who pay taxes. This issue is naturally complex as the group of individuals excluded from such political influence is a highly diverse one encompassing high-net individuals to stateless persons seeking asylum who are subject to individual circumstances and needs. This article separates itself from previous research within the tax scholarship as it does not focus on tax nexus nor on the right to participate in democratic influencing but rather on how individuals may influence tax and spend themselves with methods other than traditional voting. Otherwise stated, would it be possible for individuals who contribute to a state financially yet have no possibilities to exercise influence over tax and spend through voting due to the lack of formal citizenship be able to influence in a different manner? Tax rules and constitutional safeguards offering taxpayer protection gathered from Sweden, Germany and the United States are introduced in order to describe and analyse to what extent a taxpayer may exercise such influence. The article concludes that affluent individuals often have greater access to such legal instruments, and it subsequently indicates that political power is awarded to the few rather than the many. Moreover, it argues for a current revision to how political rights and benefits are allocated, not only at domestic level but also in the international context. The article inherently forms one component of a larger body of work that was composed under the umbrella of political (tax) equity in a global context in which this author explored how increased taxpayer mobility challenges not only traditional legal frameworks that are associated with taxation but also the allocation of political rights and benefits. The traditional perception of citizenship as the basis for voting rights is, as illustrated through various publications linked to the project, found to be inadequate when dealing with mobile taxpayers. democracy, individual taxation, tax incentives, tax competition, globalization, taxpayer mobility, tax equity, political rights, voting, citizenship, judicial review, constitutional safeguards, comparative
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Gerstenberg, Oliver. "The Uncertain Structure of Process Review in the EU: Beyond the Debate on the CJEU’s Weiss Ruling and the German Federal Constitutional Court’s PSPP Ruling." Jus Cogens 3, no. 3 (October 2021): 279–301. http://dx.doi.org/10.1007/s42439-021-00049-y.
Full textAbstract:
AbstractThe obligation to provide reasons (e.g. in Art. 296 TFEU) may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht (“BVG”) amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank (ECB). On the other side lies the concern with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler)—this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review.
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Chetvernina, A. V. "JUDICIAL AND NON-JUDICIAL PROTECTION IN THE CONTEXT OF THE MULTI-LEVEL ADMINISTRATIVE SPACE OF THE EUROPEAN UNION." Pravovedenie IAZH, no. 4 (2021): 69–80. http://dx.doi.org/10.31249/rgpravo/2021.04.05.
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The review is based on the publications of a series of articles in a special issue of the German Law Journal (German law journal. 2021. Vol. 22, N 3). It examines the complex of judicial and non-judicial problems that arise in the complex multi-level administrative structure of the EU. The main focus is on mechanisms of horizontal and vertical administrative cooperation, as well as new regulatory models that «generate» transnational administrative acts and mutual recognition systems, as well as multi-level inspection activities carried out to ensure compliance with EU legislation.
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Pawlik, Michael. "Review Essay – The Criminal Judge as Modern Inquisitor." German Law Journal 10, no. 9 (September 1, 2009): 1274–76. http://dx.doi.org/10.1017/s2071832200018137.
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The term “inquisition” has had bad press for a long time. Comparably bad is the reputation of the inquisitorial system, a judicial model that dominated German criminal law enforcement until the beginning of the 19th century. A distinctive feature of inquisitorial proceedings is the eminently strong position of the inquisitor who unifies the functions of an investigator, a prosecutor, and a judge in one and the same person. Although the codes of criminal procedure in the German states – which in 1871 formed the Kaiserreich (German Empire of 1871-1918)– included detailed rules of evidence to prevent arbitrary investigations, at the beginning of the 19th century it was a common opinion that these control mechanisms were practically insufficient and that the inquisitorial system ought to be replaced by a judicial model, which would guarantee more effective protection of the defendant against unjustified conviction.
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Oebbecke, Janbernd. "Kollegialentscheidungen unter Zeitdruck." Die Verwaltung 54, no. 2 (April 1, 2021): 273–94. http://dx.doi.org/10.3790/verw.54.2.273.
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Collegial bodies can react to time pressure either by speeding up their procedure or by transferring urgent decisions to a special organ which can decide very quickly. In Germany, the representative bodies of local government have both options. This article examines decisions of urgency taken by a special organ of local government. This article analyses the circumstances in which such decisions are taken based on the relevant literature as well as on self-collected data from cities in North Rhine Westphalia. The results can be put into five categories. Although the relevant Länder laws vary at the level of detail, they are united by a common structure. They determine that a decision is urgent only when the representative body – even applying an accelerated procedure – cannot decide in time. They set out which organ is legally competent to decide and require that the representative body of local government either approves the decision in retrospect or is, at least, informed of it. According to these regulations the decision of urgency is always concomitant with a decision on the legal competency of the special organ and on the administrative matter at hand. Their application raises numerous legal questions. In the majority of cases, decisions of urgency are taken in violation of the legal requirement, even though the representative body could have taken the decision by applying an accelerated procedure. From the perspective of those involved calling a special meeting takes too much time and effort to decide on an issue which is, in most cases, completely uncontested. Currently, a correction of this unlawful practice by legal means virtually impossible. It is, therefore, suggested that each member of the representative body should be given standing to bring a claim for judicial review. In terms of legal policy, urgent decisions should to be allowed also when the representative body cannot decide in time at the next regular meeting.
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Alter, Karen J. "When and how to legally challenge economic globalization: A comment on the German Constitutional Court’s false promise." International Journal of Constitutional Law 19, no. 1 (January 1, 2021): 269–84. http://dx.doi.org/10.1093/icon/moab014.
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Abstract The German Constitutional Court’s recent challenge to European law supremacy, and European lawyers’ strident critique of it, divert us from the conversation we need to have. The German Federal Constitutional Court wants us to focus on a surplus of European Union power, the European Court of Justice’s refusal to constrain it, the legal strategy of proportionality, and the goal of protecting national democracy. I defend national judicial pushback that is used to protect individual rights, democracy, and the national constitutional order. But demanding a German right to proportionality review of European Central Bank (ECB) monetary policy does not further these goals. Judicial review of monetary policy, especially in a context of radical uncertainty, makes little sense. Nor is the German Court’s doctrinal focus helpful as a way to address globalization. We need a new and different conversation focused on when and how constitutional review can effectively and helpfully push back against the adverse impacts that economic globalization is creating.