Comparative Law Perspective Research Articles

Research on Corporate Human Rights Due Diligence Duty of Care in the Global Supply Chains

The U.N. Guiding Principles on Business and Human Rights pointed out that businesses should undertake human rights protection obligations, which often needs to be carried out by the way of civil liability. This paper will take the judicial practice of the U.K. and the Netherlands as examples to reveal the legitimacy of the parent company's duty of care to its subsidiaries under the premise of not applying the system of “piercing the corporate veil” from the perspective of comparative law. The duty of care not only refers to the relevant obligation of parent company and its subsidiary, but also means the same thing of companies in the whole supply chain, the phenomenon reflects a trend that the subjects of duty of care has expanded. On this basis, Article 1165 in the Civil Code of the People's Republic of China could be reinterpreted, demonstrating justificatory basis of the enterprise's duty of care.

사자(死者)의 점유(占有)’에 대한 새로운 접근법

This paper introduces the domestic discussion of “ownership” or “occupation” of Kant, which is considered to be a meaningful review in the field of criminal law, especially in relation to “occupation” of criminals in each theory of criminal law. I hope that this study will be a meaningful suggestion for reference in re-evaluating the issue of recognition of possession by the deceased or the criteria for judging the commencement of occupation by heirs, which the Supreme Court precedent is concerned about.
 I think it is also necessary for practical law that philosophy of law, judicial history, or comparative law perspectives continue to be presented in relation to important issues of law. The subject of deceased's possession covered in this paper was also logically unconvincing to say that his possession was terminated because the victim died when he committed murder to steal goods, and to solve this problem, the precedent devised the deceased's survival possession to fill the gap. However, even in this case, the attempt to introduce 'legal philosophy, judicial history, and comparative law' thinking beyond the legal logic level is the way to revive legal philosophy, judicial history, and comparative law.

Contractual Relations between Providers and Digital Platforms: The Spanish ‘Riders Law’

This article examines the regulation of contractual relationship between workers and digital platforms from a comparative law perspective. For that purpose, the recently adopted Spanish ‘Riders Law’ will be the guiding thread of the analysis. The aim of this study is therefore to compare this statutory solution with other regulatory frameworks like European Union Law, UK, Italy, or French law and with case law approaches, to concluded that a third or intermediate category of workers should be set up to strike a balance between their labour rights and the innovative business model of digital platforms. Additionally, requirements of labour relationship should be reviewed and updated with the focus on economic dependency rather than traditional legal dependency. Digital platforms, legal presumption, comparative law, economic dependency, workers, employees, independent contractor, labour relationship, legal dependency, riders

Study on the Legal Protection of Women's Equal Rights in Employment in China under the Comparative Law Perspective of China and the United States

This research mainly lays emphasis on womens employment discrimination in China. In order to study this issue, various research methods are applied, such as comparative method, case-studying method and etc. The current situation of this issue is getting better with the development of domestic legal system, but problems still exist. Considering that America has more experience in dealing with this discrimination because of its history, it is chosen as the object of this research. The author compares China with America in legal system of womens employment discrimination, including legislation and law enforcement, after which problems are raised and solutions are put forward.

The International Process of Euthanasia Legislation Based on a Comparative Law Perspective

The question of whether euthanasia is a means for the elimination of misfeasance has always been the focus of international attention and difficulty. Traditional studies on euthanasia have been devoted to exploring the rationality as well as the legality of euthanasia. Meanwhile, the legislative techniques of euthanasia were explored on the basis of the existing studies on euthanasia. Instead, this paper is dedicated to examining the reasons inherent in the legality of euthanasia in various countries. The current international situation with regard to euthanasia legislation was presented, and the background of countries in the world that currently have euthanasia legislation and their legal documents were described. The underlying reasons for the different attitudes towards euthanasia in countries with different development models were analyzed by comparing the attitudes towards euthanasia in developing and developed countries without euthanasia legislation, as well as the relevant drafts, proposals, and cases, and the corresponding recommendations were proposed to promote the way forward for euthanasia legislation in China. It is concluded that different factors, such as the economy, religion, and social risk-taking, have different influences on attitudes towards euthanasia in countries with different development models. For euthanasia legislation in mainland China, it is suggested that corresponding legislative proposals should be made in both substantive and procedural aspects, with Chinas national conditions taken into account.

The right to collective bargaining in the military, police, and public sector. A comparative law perspective

The right to collective bargaining is regulated differently depending on the legal system. A common basis does exist, however: this is the International Labour Organisation Convention no. 154 (1981), ratified by 50 states, including most of the member states of the European Union. However, with regard to police and military personnel, ILO Convention 154 leaves it to the discretion of the national law-maker to determine the extent to which the guarantees provided for in the Convention apply. Indeed, according to Articles 1 (2) and (3) of Convention 154, the extent to which the guarantees provided for in this Convention apply to the armed forces and the police may be determined by national laws or regulations or national practice. As regards the public service, special modalities of application of this Convention may be fixed by national laws or regulations or national practice. The paper will include a comparative analysis of the application of these provisions in 12 Member States of the European Union. Finally, we will try to draw up a relevant table as to how each national legislator understood to regulate this sensitive subject.

Sustainable Seabed Mining—The Phase 1 Environmental Draft Standards and Guidelines

Abstract The oceans are home to a rich diversity of plant and animal life and also provide a source of food and marine resources that drive economies. Climate change and pollution are changing ocean dynamics and the ability of the oceans to support life. Seabed mining in areas beyond national jurisdiction will add to the ocean’s stressors and could cause severe environmental damage. The International Seabed Authority (‘ISA’) is mandated to manage access to and benefits from the seabed, its subsoil, and mineral resources in areas beyond national jurisdiction (the ‘Area’). Although the United Nations Convention on the Law of the Sea sets out the legal framework for developing the Area and its resources, it does so in broad terms and leaves substantial gaps. These gaps include the scope of activities in the Area, the interrelationship of international obligations, the division of responsibilities between the ISA and sponsoring states, and the regulation of the mining system in situ. To partially fill these gaps, the ISA has drafted a set of ‘Phase 1’ Standards and Guidelines under the Draft Regulations on Exploitation of Mineral Resources in the Area. This paper investigates and critiques five environmental Draft Standards from a precautionary and comparative law perspective. Phase 1 standards and guidelines should adopt a more rigorous interpretation of the precautionary principle. Additional recommendations include creating enhanced governance processes and incorporating an ecosystem-based framework for regional environmental assessments and management plans not present in Draft Standards. This research will assist academics, practitioners, governments and the ISA with policies and strategies to enhance environmental and social protections from seabed mining.

De positie en samenstelling van oordelende instanties in het protestants kerkelijk tuchtrecht

The position and composition of judicial authorities in Protestant church disciplinary law. This article discusses the relationship of the position and composition of judicial authorities in the church (disciplinary) law of the Nederlandse Gereformeerde Kerken to the position and composition of judicial authorities in: (1) the church law of the Protestantse Kerk in Nederland and the Gereformeerde Gemeenten and (2) the disciplinary law of lawyers, medics and bankers. The issue of who is authorised to take disciplinary action has been the subject of debate in secular disciplinary law. This article shows that these themes are also relevant to church disciplinary law. There are significant differences between the arrangements in the compared forms of disciplinary law. This article provides an analysis of the similarities and differences. It concludes that the differences can be partly explained, but that from a theological point of view there are also reasons to introduce additional safeguards for a prudent and careful disciplinary procedure in church law. To this end, the article contains a number of recommendations.Contribution: This article clarifies the position and composition of judicial authorities in Protestant church disciplinary law and its theological backgrounds, and also provides recommendations from a (disciplinary) comparative law perspective with other groups. These recommendations are relevant to church law practice.

The Legal Theory and Social Problems Behind "Women's Reproductive Freedom Right": From the Perspective of Comparative Law

With the aging of population and the continuous decline of fertility rate, social problems are becoming more and more serious. In order to stop the continuous decline of the fertility rate, many countries have implemented the policy of increasing the fertility rate. Based on the method of comparative research, this study has studied the partial birth policies of many countries, and the research theme is divided into two parts. The legal theory behind "Women's reproductive freedom". On the one hand, in order to promote women's human rights, some fertility decisions violate women's human rights. On the other hand, unwanted births affect children's human rights. And the social issues behind "women's right to reproductive freedom". Studies have shown that despite the increasing number of decisions made to increase fertility rates, fertility rates are still falling, and the negative impact of some related decisions on society cannot be ignored. The decision of some countries to increase birth rates is a serious violation of human rights. At the same time, this study found that such a decision goes against the original intention of the state, not only damages the protection of human rights, but also causes jurisprudence problems and social problems.

The implementation of rights management information provisions in WIPO internet treaties: a comparative law perspective

With the rapid development of information technology, intellectual property protection in the digital environment has gradually become a critical issue. WIPO Internet Treaties have included new provisions for digital intellectual property protection since 1996, which require all the members to provide adequate and effective legal remedies for rights management information (RMI). However, WIPO Internet Treaties only afford a basic framework, leaving much discretion for members to decide how to implement their treaty obligations. The domestic protection of RMI generally differs in five aspects: definition of RMI; the scope of prohibited acts; knowledge elements; exceptions of liabilities; and legal remedies. By examining the RMI provisions in WIPO Internet Treaties and their implementation in jurisdictions, this article focuses on the perceived flaws, puzzles, and problems that the RMI provisions may cause, and speculates on the effectiveness of the RMI provisions in accomplishing predetermined goals.

Localization Construction of Directors'Liability Insurance System

As an insurance to reduce the company's business risks caused by directors' misconduct, the directors' liability insurance system has not fully demonstrated its function and shows signs of acclimatization. From the perspective of comparative law, the author examines the institutional background and functional evolution of directors' liability insurance in the United States, the former doubts and adaptations in the British law, and the continuation and evolution in the German law, which provides enlightenment for exploring the dilemma of directors' liability insurance system in China and the way to improve it. Directors' liability insurance is not an isolated insurance law adjustment content, and China lacks systematic substantive rules and procedural implementation mechanisms for directors' obligations. The Company law has laid a legal foundation for directors' liability insurance to play its function, supplemented by lower level norms such as regulations at the regulatory level, and gradually expanded the scope of applicable subjects of directors' liability insurance to all types of company directors and executives. Then from the level of insurance law system, the localization of directors' liability insurance clauses is realized, and the unification of the main clauses of the contracts of various insurance companies is promoted, which provides a feasible way to perfect the directors' liability insurance system in our country.

Legal Norms for the Protection of labor rights of Multinational Enterprises: Based on the Perspective of Comparative Law

With the development of economic globalization, the scale of multinational enterprises continues to expand, the number of labors working in multinational enterprises is rapidly increasing while labor rights of multinational enterprises are frequently violated. How to protect human rights of those labors has become a challenge that current world must face. The home countries, host countries, international organization and multinational enterprises fail to undertake their labor rights protection responsibilities in many times, and there are significant deficiencies in legislation here. Nowadays, multiple entities are in the practice of overseas labor protection in order to promote the world's sustainable development, integrate the interests and achieve the cause of global human rights protection career. This essay will use historical research, comparative analysis, regulatory research to provide ideas and solutions for the better realization and legislation of labor rights protection from the aspects of the history of particular labor rights protection, the concepts and characteristics of relevant protection subjects, the main reasons for the current situation of infringement, theoretical basis of labor rights protection, legislative impetus, final expectations for international actors in action.

Ineffective contracts, restitution and the change of position defence

The paper, moving from a cross-border case and with a comparative law perspective, addresses which is the operative rule of Restitutionary claim resulting from an ineffective contract, assessing whether it would be achievable, under Italian Law, the same results of the “Change of Position Defence” under common law. The topic relates to the broader issue of allocating costs incurred by the party who performed a void contract in reliance on its validity, for which, under Italian Law, guidance could be given by Section 1328, paragraph 1, second part, of Italian Civil Code.

The translation of the Chinese Civil Code in a perspective of comparative law

Observing the phenomenon of the translation of statutory texts in China, it is noteworthy that the source language was mainly German until after the plethoric legislation under Deng Xiaoping. Then the pendulum swung back. Chinese is now the source language and statutes are translated into English.What is for a Chinese Court the legal value of the translation of a legal text, for instance of a disposition of the Civil Code? A difference has to be made between an authentic translation, and an official or a private one. Only in the hypothesis that both language versions are authentic, the court will have the obligation to reconcile them in case of divergence between them.For a court having to apply a particular disposition of a statute in a pending case – or for an arbitrator, a legal counsel or a scholar – the practical value of a translation is that the interpretation by the translator himself of the text which has to be translated (even a non-authentic translation), can influence and facilitate their subsequent interpretations by others. If made timely, it could also help the legislator to draft a clearer final text. The same is true for the drafter of a treaty or of a commercial contract.The obvious negative aspect of a translation is that it can contain errors and can by consequence create confusion and misunderstanding by those who later on will have to apply the disposition. Some examples hereof can be found in the Chinese Civil Code.Two recommendations can in conclusion be made, one concerning the moment of the translation, and one concerning a desirable supervision by a comparative lawyer during the translation process.

A comparison of the Newly Reformed German and the Liechtenstein Foundation Law against the background of the competition between the legal systems

Abstract An European legal framework for foundation practice is still missing. Even the proposal for a regulation on the statute of the Fundatio Europaea has not yet been implemented. Meanwhile, the civil law regulations of the various foundation law systems are manifold. At the same time, competition between European legal systems not only affects civil, corporate and tax law, but has also reached foundation law. Moreover, the social and international environment of foundations is changing. In addition to a new generation of young founders, the demographic change in society and the mobility of legal forms in the European environment are also having an impact on foundations. Due to current reforms in the traditional foundation law systems of Germany and Switzerland, the question arises whether Liechtenstein should react to the competition between foundation law systems and whether the Liechtenstein legislator should become active once again. For this reason, this article deals in detail with the most important changes in German foundation law that are relevant for Liechtenstein foundation law. The article also looks at the regulations in Liechtenstein foundation law in a comparative law perspective, highlighting the competition between foundation law systems.

CONTRATOS E BLACK BOXING

This article briefly aims to address complementary notes about the contemporary contractual issues in the scenario between artificial intelligence and patents law; Therefore, the paper discusses insurance prerogatives in a comparative law perspective, investigating the work of the European commission on this matter; Further, the present work presents technical problems inherent to the AI and how this affects the conformation of legal structures such as civil liability, demonstrating the relevance of studying the interplay between intellectual property law and innovation as well as technology and contracts in emerging markets, concluding finally with the highlighting of the limitations of this article.

The Establishment of the Legal System of Data Outbound Transfer from the Perspective of Comparative Law

Data are considered as one of the basic production factors, the cross-border flow of which has brought new development opportunities for the digital economy, but the unordered data outbound transfer has brought new challenges to national, public and enterprise interests, and the rights and interests of data subject. The legislation of different countries and regions has basically formed three paradigms: absolute prohibition, complete openness and conditional cross-border transmission. China should draw on the mature international mechanisms for the control of cross-border data flows, and combine its national interests and data protection realities to establish a legal supervision mechanism with hierarchical and categorical data management and control as the core, so as to realize the secure and free cross-border flow of data.

Arbitration in Insolvency

The present article highlights the relationship between arbitration and insolvency proceedings. It examines from a comparative law perspective the questions of whether the arbitration agreement remains effective when the insolvency proceedings are opened, whether it binds the insolvency administrator, whether the latter can disengage from it under the rules on executory contracts, and which insolvency-related disputes are covered by it. In particular, it is discussed whether avoidance actions are arbitrable and whether the insolvency practitioner can conclude an arbitration agreement with the opposing party.

The Right of First Offer in European Law

The present study aims to offer an integrated vision on the origin, legal nature and the effects which occur in the field of specific relations of civil law, from the perspective of comparative law by valorizing the specific research methods which define the institution of the right of first offer. Theoretical approaches with practical implications of continental law and Anglo-Saxon law were considered.

Research on the Judicial Application of The Punitive Damages System for Environmental Infringement

Under the initiative of "a community with a shared future for mankind", the discussion of ecological environment protection is growing nationwide, and the legal issues that follow have also received more attention. For this reason, China has introduced the system of "punitive compensation" into the field of environmental tort in Article 1232 of the Civil Code to achieve the effect of ecological environmental protection. This paper will study from the perspective of comparative law, through comparing the legislative research and judicial application of punitive damages for environmental tort in China and the United States, and then clarify the legal regulation path of punitive damages for ecological environmental tort, and further improve the legal framework of punitive damages system.