Comparative Law Perspective Research Articles

Labourers

The autor, adopting the comparative labour law perspective, gives an insight into the classic reading by Emily Bronte, telling about the suffered living in the English country side of late 1800.

Fixing Transnational Drug Policy: Drug Prohibition in the Eyes of Comparative Law

Drug prohibition allows us to study over a significant period of time how penal provisions framed at a supranational level flow, settle, and unsettle across different countries. At a time of growing doubt about the benefit of criminalization of drug use, it also provides a case‐study as to how epistemic communities may rely on comparative research to identify best practices and promote them as normative alternatives in the face of a long‐entrenched legal dogma. In order to explore these issues, this article looks at the UN drug control system from the perspective of comparative law. It shows how the concept of legal transplant provides a useful tool to understand the limits of transnational criminal law designed on a global scale to tackle the ‘drug problem', and it clarifies the various types of legal comparison that might contribute to addressing this failed transplant.

Planned obsolescence and consumer protection

Purpose – The text addresses the problem of planned obsolescence from the point of view of consumer protection, based on the decisions of Autorità Garante della Concorrenza e del Mercato which condemned Samsung and Apple on the grounds of the prohibition of unfair commercial practices. It aims to consider the scope of the applicable similar norms in Portuguese and Brazilian legal systems.
 Methodology – Analysis of the grounds relied on those decisions, as well as the relevant doctrine regarding planned obsolescence and consumer protection from a comparative law perspective.
 Findings – The text demonstrates which norms can ensure consumer protection in the case of technical or functional planned obsolescence, especially considering the communication dimension, which focuses on the right to information.

『欽欽新書』와 법의 서술 — 『欽欽新書･批詳雋抄』의 중국 판례를 중심으로 —

This article focuses on the analyses of Chinese law cases contained in the Heumheum sinseo (Towards New Jurisprudence) from the perspective of comparative law. The second chapter of the Heumheum sinseo, “Bisang juncho,” contains 70 Chinese law cases selected from Chinese casebooks such as the Zizhi sinshu and the Lianming gongan. These Chinese cases are introduced as sample writings used for drafting legal documents. Previous studies on the Heumheum sinseo have tended to concentrate on the analyses of Korean law cases rather than the Chinese cases. Therefore, this article focuses on examining what was aimed at by introducing and analyzing various Chinese cases and what the meaning of Chinese law cases was in relation to Korean law and legal culture.

Constitutional Questions of the Situational Legitimate Defence

This study examines the problems surrounding legitimate defence as an institution of criminal law, as it is regulated by the Hungarian legislator, in an international and comparative law perspective. It further examines the compatibility of the current regulation with the requirements of the Fundamental Law of Hungary as well as the practice of the Constitutional Court. The author concludes that the pertinent text of Section 22, para. (2) of the Hungarian Criminal Code seems to be unconstitutional, rendering the wide scope of legitimate defence in comparison to the requirements of proportionality as objectionable.

Shareholder Protection in China from a Numerical Comparative Law Perspective

The traditional approach in legal comparative research is doctrinal rule-based. A relatively recent breakthrough has been the use of econometric techniques in comparing the extent of success in different jurisdictions with respect to, for example, protecting shareholders. The meshing of legal research and econometrics is known as ‘leximetrics’ (Lele & Siems, 2007). One of the most prominent and widely cited use of leximetrics is the seminal study by La Porta and colleagues (1997, 1998 & 2000) on the correlation between shareholder protection and financial development. The study, though highly influential, has attracted various criticisms. Subsequent studies have sought to build on the study by coming up with improved research design. For example, using a panel dataset covering a range of developed and developing countries, researchers from the Cambridge Centre for Business Research have discovered that a significant upward movement in the level of shareholder protection was made by China between 1990 and 2013 (Armour et al., 2009; Siems, 2016). It has been suggested that between the period, China experienced the ‘biggest increase in shareholder protection’ amongst 30 countries studied, and China was amongst the top performers (along with France and Russia) in shareholder protection in 2013, performing even better than the UK and the US. At the same time, the World Bank’s (2017) Protecting Minority Investors Index, which forms part of its Doing Business Reports, has recently painted a rather opposite picture, in contrast to the positive assessment by the Centre for Business Research, by putting China in the 119th position out of 190 countries which indicates a very mediocre performance. This article seeks to address the question of whether and how the two studies, both employing leximetric techniques and examining an ostensibly similar issue, can point to discrepant results.

Some issues of summary procedure in the 2015 Civil Code: A comparative perspective

A summary procedure is understood as a special procedure simplifying the ordinary one to deal with civil disputes in a truncated process. This can help to reduce time and costs for the litigants and the State, cut down workload for the courts at all levels. However, since summary procedure is a new regulation which was first recorded in the 2015 Civil Code, its application has certain problems and therefore requiries specific guideline. The paper analyzes regulations on summary procedures in the 2015 Civil Code from the perspective of comparative law and suggests some recommendation for improvement.

A Bank’s Duty of Care: Perspectives from European and Comparative Law – Part I

In this article we place a bank’s duty of care in a European and comparative law perspective. We have chosen five topics which are hotly debated in theory and practice. The first topic is the scope and intensity of the essential duties which typically flow from a bank’s duty of care: duties to investigate, duties to disclose or warn, and – in exceptional cases – outright duties to refuse to render financial services or products. In some jurisdictions, financial disputes between investors and banks are not so much resolved by reference to a bank’s duty of care, but by reference to the traditional doctrine of error or mistake, and fraud. That is the second topic we discuss in this article. The third topic is the impact of the European Markets in Financial Instruments Directive (MiFID) on a banks’ duty of care. The fourth topic focuses on the role of the financial regulator in settling disputes between banks and clients. We conclude this article with the bigger picture and relevant reform perspectives

Fixing Transnational Drug Policy: Drug Prohibition in the Eyes of Comparative Law

Drug prohibition allows us to study over a significant period of time how penal provisions framed at a supranational level flow, settle, and unsettle across different countries. At a time of growing doubt about the benefit of criminalization of drug use, it also provides a case‐study as to how epistemic communities may rely on comparative research to identify best practices and promote them as normative alternatives in the face of a long‐entrenched legal dogma. In order to explore these issues, this article looks at the UN drug control system from the perspective of comparative law. It shows how the concept of legal transplant provides a useful tool to understand the limits of transnational criminal law designed on a global scale to tackle the ‘drug problem', and it clarifies the various types of legal comparison that might contribute to addressing this failed transplant.

15th International Students Seminar (ISS) “Right to Vote and Electoral Law in Comparative Perspective”, Kenyatta School of Law, 4.-9.2.2019

15th International Students Seminar (ISS) “Right to Vote and Electoral Law in Comparative Perspective”, Kenyatta School of Law, 4.-9.2.2019

A Bank’s Duty of Care: Perspectives from European and Comparative Law – Part II

In this article we place a bank’s duty of care in a European and comparative law perspective. We have chosen five topics which are hotly debated in theory and practice. The first topic is the scope and intensity of the essential duties which typically flow from a bank’s duty of care: duties to investigate, duties to disclose or warn, and – in exceptional cases – outright duties to refuse to render financial services or products. In some jurisdictions, financial disputes between investors and banks are not so much resolved by reference to a bank’s duty of care, but by reference to the traditional doctrine of error or mistake, and fraud. That is the second topic we discuss in this article. The third topic is the impact of the European Markets in Financial Instruments Directive (MiFID) on a banks’ duty of care. The fourth topic focuses on the role of the financial regulator in settling disputes between banks and clients. We conclude this article with the bigger picture and relevant reform perspectives.

Patents for Sharing

Spurred by the Internet, emerging technologies have changed the way commercial firms innovate and have made it possible for individuals to play an important role in that innovation. Producers in the Information Communication Technologies (ICT), and other sectors dealing with complex technologies with many separately patentable components, find it increasingly difficult to make products without infringing on patents held by others. Numerous overlapping patents often cover such products. Producers have developed a new way to use patents: as inclusive rights for sharing their technologies with others through cross-licensing and other private ordering arrangements in order to ensure the freedom to operate and innovate. Individual innovators, and open source software (“OSS”) programmers in particular, have also developed a new use of copyrights: using them to share their technologies through OSS licenses. Producers of complex technologies use patents for sharing their technologies with OSS programmers and for protecting themselves from patent assertion. In light of these recent uses, this article proposes a new utilitarian theory for patents: patents as the incentive to share, with the reward of increasing the freedom to operate and innovate. It argues that both the ex ante and ex post incentive to invent theories are outdated because they fail to take into account the patent owners’ lack of control over their products in complex technology sectors. This article urges Congress to reevaluate U.S. patent rights in light of this new patent use. It reviews U.S. patents as property rights from the comparative law perspective and proposes the revitalization of the inclusive side of U.S. patents by introducing a compulsory license for blocking patents. It also proposes that the exclusive side of patent rights should be limited to private and experimental use exceptions to ensure the freedom to operate and innovate by sharing.

Arguments and Comments Presented during the Discussion of Dina Sõritsa’s Doctoral thesis The Health-care Provider’s Civil Liability in Cases of Prenatal Damages

The paper presents the main topics that arose in the discussion of the doctoral thesis The Health-Care Provider’s Civil Liability in Cases of Prenatal Damages, presented at the facilities of the University of Tartu Faculty of Law by its author, Dina Sõritsa. These topics are briefly dealt with from a comparative-law perspective and with special attention to European human-rights law. The discussion articulates and proceeds from the opinions the author presented as designated opponent for the public defence of the dissertation.

Counter-Limits Beyond Europe? The Latin American Calvo Doctrine from a Comparative Law Perspective

Adopting a functional approach, the article compares European ‘constitutional disobedience’ doctrines and the Calvo doctrine. This latter, elaborated to counteract interventions of foreign powers and positivized in several Latin-American constitutions, has been re-discovered as a counter-hegemonic instrument against sources of international economic law based on neo-liberal ideology. Positive law and judicial practice show that, while today both the European and Calvo doctrines protect the axiological identity of domestic orders against ‘outer’ legal systems influenced by utilitarian rationalities, their implementation and efficacy largely diverge, due to their different socio-legal contexts. The article finally outlines the elements of a “general” constitutional disobedience doctrine, which could be an immanent principle of constitutional orders.

Accountability in Extraterritoriality: A Comparative and International Law Perspective. By Danielle Ireland-Piper. Cheltenham, UK: Edward Elgar, 2017. 187 + xvi pages.

Accountability in Extraterritoriality: A Comparative and International Law Perspective. By Danielle Ireland-Piper. Cheltenham, UK: Edward Elgar, 2017. 187 + xvi pages.

Family Dispute Resolution from the Perspective of Comparative Law

Family cases are different from ordinary civil cases in that they have their own ethical solutions. The traditional Chinese law deals with family disputes focusing on reason law, while legal reform uses the legal technical rationality to weaken the ethical attributes. The current reform of the family trials in China is based on the experience of the extraterritorial law, and gives due consideration to the return of the family-based standard, paying attention to the rights of under-age children. Around this goal, issues such as the resolution principles and procedures of family disputes should be adjusted.

Law as a global entity through Italian eyes and minds

ABSTRACTThis contribution discusses, from the perspective of global comparative law, how Mariano Croce’s English translation of a major book by an important early-Italian scholar, Santi Romano, allows helpful insights into early twentieth-century Italian thinking about the intrinsically plural nature of law. This debate connects directly to current worldwide discourses about legal pluralism, showing how Romano’s exciting project forms an early precursor of the gradual movement towards obtaining a better grasp of the inner nature of the deeply plural concept of law. Romano’s work, as a remarkably pertinent early contribution, of lasting relevance to global legal theorizing, indicates that a reductionist, positivistic conceptualization of law that ignores the legal agency of common citizens could easily lead to disastrous outcomes through abuses of state-centric powers. Connecting Romano’s early theorizing to many currently ongoing debates in different jurisdictions and legal orders about the plurality of laws, this article seeks to demonstrate the powerful impact that such kind of pioneering work can have even today. It strengthens, above all, the currently growing realization that law is certainly much more than state law, and that people’s laws and their diverse values and ethics should be treated with more respect by legal orders.

Protection of the rights of persons interested in assisted human reproduction techniques. A perspective of comparative law

A nivel internacional, las legislaciones en materia de técnicas de reproducción humana asistida (TRHA) difieren en temas como el acceso a las mismas, la fecundación post-mortem y la donación de gametos. Si las legislaciones se fundamentan en tres principios comunes ¿Cómo explicar entonces disposiciones tan distintas, muchas de las cuales podrían considerarse violatorias de los derechos fundamentales de las personas interesadas? El objetivo de este artículo es explicar dichas diferencias a partir de una jerarquización distinta de los principios comunes. Mediante una metodología cualitativa con un enfoque hermenéutico y crítico social, el diseño de la investigación, de carácter documental, implicó una revisión de la normativa y la jurisprudencia de siete países, así como de la literatura científica sobre la materia. El análisis de los resultados permitió identificar que si bien, los derechos de las personas interesadas son protegidos, dicha protección se realiza de manera distinta en cada país.

PUNITIVE DAMAGES, CHINESE TORT LAW, AND THE AMERICAN EXPERIENCE

In a country such as China, with abundant consumer products and the inevitability of product defects, claims for punitive damages are sure to arise under Article 47 of the new Chinese Tort Law. Article 47 provides that “(w)hereany producer or seller knowingly produces or sells defective products, causing death or serious damage to the health of others, the injured party may request appropriate punitive damages.” As Chinese jurists and scholars interpret Article 47, they may wish to consider whether lessons can be drawn from the American experience. During the past two decades, few areas of American law have changed more radically than the law on punitive damages. While there were once few restraints on the ability of a judge or jury to impose punitive damages in a case involving egregious conduct, today there are a host of limitations embodied in American state and federal law. In many American states, statutes or judicial decisions restrict the ability of a court to award punitive damages by narrowly defining the types of conduct that will justify a punitive award, raising the standard of proof, capping the amount of punitive damages, requiring a portion of a punitive award to be forfeited to the state, or limiting vicarious liability for punitive damages. In addition, under federal constitutional law, the principle of due process limits the imposition of punitive damages by scrutinizing the ratio between compensatory and punitive damages and prohibiting an award to be based on harm to persons other than the plaintiff. An examination of these developments from a comparative law perspective may prove useful to the implementation of Article 47.

Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in US copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to Internet users. This article will first address the international norms that domestic laws of states member to the multilateral copyright agreements must implement. It next will explore how two of the most significant regional or national copyright regimes, the EU and the US, have coped with the question of linking, and then will consider the relationship of the emerging approaches to copyright infringement with national and regional laws instituting limited immunity for copyright infringements committed by internet service providers. We will conclude with an assessment of the extent to which the outcomes under US and EU regimes, despite their apparently different approaches, in fact diverge.