Continental Law Research Articles

Social Market Economy Is Not an Oxymoron

“Continental law is irrational. American law is irresponsible.” With this phrase, Christoph Engel has described the prejudices on both sides of the Atlantic regarding legal science. Indeed, both legal systems seem to have noticed a need to correct these failures. In European legal science, arguments of efficiency based on the assumption of rational behaviour increasingly gain momentum. In the USA regulators increasingly take into account market failures based on information from “the people” as they “speak” through behavioural science research. Some European scholars have taken the development in the USA as an opportunity to also call for more implementation of behavioural sciences into European regulation. While this is a valid concern, I will argue that they nonetheless often seek to cure a disease that is not as pertinent in EU internal market law as it is in US economic law. They transfer solutions from US regulation to EU internal market law without asking whether European and US American problems are similar and whether the cure is the same. They thereby neglect the fact that both legal systems are embedded in different legal cultures or domains, as they have developed differently in course of history and seek to remedy also different problems by regulation. I will show that quite a number of problems that the USA corrects by using behavioural research have not (yet) materialized in EU internal market law, but others have. Due to its intrinsic need to establish an internal market even against the nation state’s will, EU law has always had to rely on the responsiveness of its peoples in order to make the establishment of the internal market a success. As to this need, purely efficiency-driven macro-economic regulation without a social bottom-up backup by the peoples of Europe has always failed. EU law hence witnesses a “legitimacy market failure”, which is the outcome of the specific setting of the multi-level character of EU law. This legitimacy market failure, I argue, needs to be cured with behavioural research. It is this behavioural approach that provides the EU with the means it needs to secure legitimacy in its regulation and even expand its regulative capacity against the Member States’ to an extent where it could even regulate in areas where no norm explicitly provides it with any competence.

The Meaning of 'Law' in Comparing Laws or the Complexity of What the Object of Legal Comparison Is

The Meaning of 'Law' in Comparing Laws or the Complexity of What the Object of Legal Comparison Is

The seller's liability for material defects of the goods and the buyer's legal remedies in that case

When the seller, in the sales contracts, delivers the goods with material deficiencies than the buyer will be entitled to use certain legal remedies against him. No legal system today questions this right of the buyer, but neither are the same legal remedies available to him everywhere, nor are the conditions under which they can be used the same. Substantial differences on this issue are noted between continental laws and common laws, but even the legal systems belonging to the same group do not have identical rules about them. That, to a significant extent, may be explained by the fact that the development path of the seller's responsibility for material defects in comparative law was not the same and for that reason an overview of that issue is given at the beginning of this paper. This is followed by the author's analysis of the buyer's notification on the defects of the goods as a condition for the seller's liability for material defects, and then the differences between systems of legal remedies of the buyer in continental and common laws are given, as well as solutions in several characteristic national laws within each group of laws. Rules of the Vienna Convention on contracts for the international sale of goods are exposed as a separate issue, keeping in mind their importance which is, above all, reflected in their impact on changes in national legislation in this area of law. In the conclusion it is noted that these changes flow toward the harmonization of the laws of the sale of goods, which facilitates trade and promotes economic prosperity.

Autorskie prawa osobiste w ustawodawstwach Francji i Republiki Federalnej Niemiec – analiza prawnoporównawcza

Konstrukcja dóbr osobistych twórców jest jednym z najbardziej kontrowersyjnych zagadnień prawa autorskiego, w odniesieniu do którego wprowadzenie jednolitych norm międzynarodowych jest utrudnione, przez wzgląd na tradycyjny podział na państwa tradycji copyright oraz kontynentalne regulacje autorskoprawne. Jakkolwiek, zauważalne jest dążenie do zbliżenia systemów prawnych, m.in. przez wprowadzenie do porządków krajów common law prerogatyw osobistych twórców. Należy jednak podkreślić, że mimo przyjęcia na gruncie ustaw państw kontynentalnych praw osobistych twórców, ich struktura i katalog środków ochrony są wielce zróżnicowane. W artykule została omówiona sytuacja prawnoosobista twórców w porządku prawnym Francji oraz Republiki Federalnej Niemiec. Zasadniczym celem artykułu jest analiza i porównanie konstrukcji i przedmiotu wybranych uprawnień autorskich zawartych w regulacjach krajowych wskazanych państw, jak również wykazanie istnienia wspólnych instytucji jurydycznych, dotyczących autorskich dóbr niematerialnych w poszczególnych reżimach z uwzględnieniem linii wypowiedzi orzecznictwa.

Justinian's Corpus Juris Civilis in Comparative Perspective: Illuminating Key Differences between the Civil, Common, and Chinese Legal Traditions

ABSTRACT In commissioning and promulgating his famous Digest—part of his sixth-century legal compilation known as the Corpus Juris Civilis—the Emperor Justinian helped ensure that continental European law would be horizontal, written, scholarly, and historical. The Digest, drawing from classical Roman law, lay dormant for several centuries following Justinian's reign but then reemerged in the eleventh century to confirm those four characteristics. Significantly, it is that very combination of four characteristics that sharply distinguishes continental European law from both traditional Chinese law and English common law.

Значение термина «право» в сравнительном правоведении

Comparative jurisprudence as an extension of
 the scholarly cultivation of domestic laws, closed down
 within its respective national boundaries, is historically
 rooted in the realisation of how much the self-closing of
 continental laws, based upon their national codifi cation
 throughout the 19th century, emptied their scholarly approach
 as well. In the pioneering age of comparison, the
 turn of the centuries, legal ideology was still marked by
 the predominance of statutory positivism, so the law’s
 comparative treatment — as a fi rst step — could not
 target but its statutory form. Albeit there have been
 mentions by the classics of legal comparativism, emphasising
 the signifi cance of the law’s sociological entourage
 and cultural embeddedness as well, neither the
 direction nor the methodology of research has changed
 to a transformative depth since.
 Every moment contributing to a decision in law is
 ambivalent in itself: nothing is compelling by its mere
 existence. Th erefore we have to know in advance what
 the law is, what we can do with it and exactly what we
 can achieve through the store of its instruments in a
 given culture so that we can successfully proceed on with
 it and within it. Or, there is necessarily a given auditoire
 faced with a real situation of life and, acting with this
 auditoire, the well-defi ned contextuality of a stage (together
 with the given social, ethical, economic and political
 implications in play) that form the framework
 within which the judicial establishment of facts and
 interpretation of norms can take place at all.
 Th at what is identifi able of law when no implementation
 or judicial actualisation is priorly made is a dynamei
 [potentiality to get actualised] at the most, which can
 exclusively become anything more through an instrumental
 operation by legal technique. Accordingly, law is
 made up of (1) a homogenised formal concentrate (2)
 operated — through its being referred to — by a practical
 action, the result of which will posteriorly be presented
 to the external world as law converted into reality.
 Accordingly, from the very beginning, comparison of
 laws, targeting laws proper, that is, ones enacted, shall be
 widened so far as to comprehend their practical implementation,
 as either offi cially enforced or at least tacitly
 acknowledged as the realisation thereof. And in order to
 understand the ways and manners of implementation,
 including both the handling of what will be established as
 facts and the canons of interpretation of what will be referred to as norms, comparison has to target and involve
 the patterns of judicial thought (argumentation and reasoning,
 i.e., lawyerly ideology as a specifi c species of professional
 deontology) as well.

The Requisite Intention for the Acquisition of Domicile of Choice: Permanent or Indefinite – A Comparative Perspective

In determining the jurisdiction of court and the applicable law in cases where a choice of law rules is involved, the courts would always seek to find the most common connecting factor that binds the parties to a particular jurisdiction. Various concepts are employed in different jurisdictions in determining the personal law of the propositus and invariably the applicable law and jurisdiction of the courts. In most of the Continental European and other civil law countries, nationality, that is, the law of the country of which the person is a citizen, is the basic connecting factor. In countries that pay much regard to religious adherence such as India and Cyprus, personal law is determined based on the individual’s religion such as Muslim, Hindu or Christian. In most common law countries, domicile is the most important connecting factor. It is a person’s domicile that usually determines which law governs his or her family relations, which court has jurisdiction in matters of his or her status, and whether the judgments of some foreign courts could be enforced against him or her locally. Domicile is also a very important concept in jurisdictions with mixed legal families such as Lesotho and South Africa, where the concepts of Roman Dutch law and Common Law apply equally. There is, however, a disagreement in defining the concept and its scope at common law. In some jurisdictions, the parliament has intervened by enacting statutory provisions aimed at streamlining the concept and its applications within those jurisdictions. Domicile has many facets such as domicile of origin, domicile

경찰 정체성 접근론에 관한 논의

우리나라 경찰은 근대화를 거침으로써 일제식민지 시대의 대륙법계 경찰체제를 거쳐 해방 후 미정 경찰체제를 받아들임으로써 혼재한 상황에서 전란으로 한국의 경찰 정체성을 확립하기보다 체제완성에 집중해온 것이 사실이다. 이후 정치적, 경제적, 사회적 외부 환경이 안정화를 갖춤에 따라 현대사회 경찰활동을 지향하기 위해 내부적 성찰을 통한 경찰활동의 철학 즉, 경찰 정체성이 필요하게 되었다. 그러나 대부분의 경찰 정체성 정립을 위한 접근은 주요 변수를 찾는 것에 치중하여 단계적 계측을 중시해 왔다. 이러한 단적인 계측 연구를 통한 경찰조직의 정체성은 복제(replication)을 수행할 수 없을뿐더러 이상적 정체성을 내재화하는 것에 한계를 가졌었다. 이에 따라 본 연구는 경찰 정체성 확립의 필요성과 접근론의 형성을 논의하기 위해 경찰관이 정체성을 내재화하기 위한 인식으로써 어떠한 수단에 의존하는지와 의존수단에 따른 경찰활동 반영성을 분석하고 결과를 제시하였다. It is the fact that Korean police has not focused on establishing identity but focused on establishing system due to the war under the confused situation which accepted police system of continental law in the period of Japanese Colony and then accepted the police system when being governed by USA. Afterward, as political, economic, and social atmospheres outside became stable, police identity, the philosophy of police activity through internal introspection in order to orient police activity in modern society, is needed. However, most of approaches for establishing police identity have focused on phased measurement by emphasizing to find major variables. Such identity of police organization through certain measurement study could not only carry out replication but also showed its limit to internalize ideal identity. Therefore, this study analyzed the reflectivity of police activity according to how it depends on certain means and depending means as a recognition to internalize the identity in order to discuss the formation of necessity and approach in establishing police identity, and suggested its results.

A Scenario to Acquaint with the Problem of Engineering Compliant Software

Section 1 of this paper follows entirely a scenario from the article “Engineering Compliant Software: Advising Developers by Automating Legal Reasoning” by D. Oberle, F. Drefs, R. Wacker, C. Baumann and O. Raabe, SCRIPTed (2012) 9:3, 280–313, where it serves as a running example. It demonstrates that data transfer violates the law. This motivating scenario has added value in the education of software developers and is worth sharing with the computer communities of other countries including Lithuania. In the scenario, the continental law and EU law sways the particularities of the German law. The motivation for teaching the scenario can be compared with teaching concrete cases in the study of law. Legal reasoning is demonstrated by supplementing the provisions of the German Federal Data Protection Act (FDPA) with those of the Lithuanian Law on Legal Protection of Personal Data, which have the same meaning. In Section 3, we attempt to formulate the software compliance problem. Finally, we explain the notion of subsumption – a legal qualification of facts according to a norm’s circumstance. We consider subsumption to consist of two notions: terminological subsumption and normative subsumption.

New Evidence for the Influence of Gallic Canon Law in Anglo-Saxon England

The importance of canon law collections to Anglo-Saxon legal culture has long been thought negligible, especially in comparison to the considerable importance of an alternative genre of canonical literature known as the penitential handbook. Over the past several decades, however, evidence for the use and circulation of continental canon law collections in pre-Conquest England has been mounting, to the extent that it could challenge traditional notions about the dominance of penitential law in the early English Church. This study presents new evidence for the reception in Anglo-Saxon England of a major continental collection known as theCollectio vetus Gallica.

Тенденции развития правового регулирования выпуска и обращения облигаций в законодательстве Польши

The subject of research is the notion and the features of a bond as a subject of the Polish civil law. The aim of research is the exposure of the current trends of legal regulation of bond issue and handling on example of the legislation of Poland. The methodological basis of the research contains the comparative law approach. In the 
 course of investigation the author has come to the conclusion that the legislation of Poland governing the issue and handling of bonds reflects a number of current trends of the development of civil law as following: the differentiation of legal regulation of the securities market, the unacceptance of the universal concept definition of the term «security», the dematerialization of the securities, the approximation of the legal status of a share and a bond, the enhancement of the measures of the corporation’s shareholders and debt holders protection, the approximation and mutual loanword of the common and continental law countries legislation, the extention of the frame of reference of legal civil rights represented with securities.

The European Regulations on Succession of July 2012: A Path Towards the End of the Succession Conflicts of Law in Europe, or Not?

In recent years, the mobility of people within the European Union has created major problems such as the settlement of cross-borders inheritances that may accelerate in the coming years.Europeans as well as foreigners own estates in different countries. This ownership triggers the application of multiple inheritance laws and creates conflicts of law. Currently in Europe, there are two types of inheritance law, the principle of scission (known in France, UK, and Belgium, but also outside Europe as in USA) and the law of the Unity Estate (currently applied in Germany, Spain, Italia or Portugal).Previous attempts to unify the rules of succession in Europe have been unsuccessful. Nevertheless, since 2005 , the European Union has focused on succession. The European Parliament and the Council of the European Union adopted last July 4th 2012 a European regulation on jurisdiction, applicable law, recognition and enforcement of decisions, and acceptance, and enforcement of authentic instruments in matters of succession, and on the creation of a European Certification of Succession. Except for the United Kingdom, Denmark and Ireland, this text is primarily geared to avoid conflicts of law of succession with a universal character. This means, for example, that an American citizen, owner of a property in Europe, could use these regulations. It retains the principle of one law applicable to the succession by determining the deceased’s habitual residence. This regulation denies all actual references to the rule of scission. It also admits the professio juris rule, holding that any citizen can decide the law applicable to his estates, which could be the law of his citizenship or the law of his habitual residence.In this paper, I examine some of the potential problems with the new European legislation such as the theoretical aspects of the rule of the habitual residence. Does the rule anticipate any conflicts of law? The paper also addresses the practical aspects of the regulations. One likely consequence is that the legal practitioners, who are mostly Notaries in the European continental law countries, will have to receive training about the relevant foreign laws. Till now, the question of how they will have access to this training and be ready to apply it to actual cases has not been adequately addressed. I suggest a new approach to deal with these issues. Since the European countries will have three years to reform their national laws to conform to the European regulations, the time is ripe to discuss the challenges that law ahead with respect to the succession laws. “Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity.”

Comparative law in China: over 30 years' development and paradigm shift in research

This article first provides a review of the development of comparative law in China, in particular, over the course of more than 30 years of reform and opening up. It then discusses the fundamental theoretical issues in comparative law, such as the nature of comparative law, its research scope and research methods, legal transplant, and legal globalization. The article then proceeds to examine various specific issues of comparative law, mainly contract spirit and constitutionalism, the comparison between case law and statutory law, features of the continental legal system, the difference of statutes between continental jurisdictions and common law jurisdictions, and the division between public law and private law. It ends with a discussion on the paradigm shift in the research of comparative law against the trend of legal globalization.

Dealing on Own Account in Swaps

Swaps are financial instruments which aim is to reduce risk to interest rate fluctuations. They come up as a result of market evolution. They are spreading out in an uncontrolled manner. They are not bad or good. Interest rate hedging products can protect against the risk of interest rate movements and be appropriate when properly sold to clients and fit their needs. Though, the facts shows that most of the swaps are complex products, distributed to “non-sophisticated” customers which do not have specific expertise and understanding on in this area. Swaps are hazardous and hard to understand for these clients, considering their complexity and difficult follow up. Its evolution, with multiple forms, went beyond the legal culture. They are high-risk juridical contracts, which include articles imported from the Anglo-Saxon Law as opposed to continental law. Their volume finally affected market stability, resulting in a systemic risk. This paper describes the characteristics of these products and the poor sales practices during the commercial offer and the execution of the agreement, including the lack of information on the risk involving the products. The paper focus on the appropriateness of include in a catalogue of investment services the negotiation of OTC derivatives and reinforce in these cases information to client and prevention of conflicts of interest, leading to the designation of an independent calculation agent.As a result of the financial crisis, financial regulation was reviewed, and in particular, control on derivatives. The paper concludes that model of the bank-client relationship moves towards the client as a vulnerable party. The gravity center shifts from the traded product to the quality of the service supplied to the client. But considering other financial supervisors, in Spain, CNMV and Banco de Espana swimming against the tide, they tend to exclude swaps from the application of the business conduct rules of the securities market with groundless arguments.

The Mélange of Innovation and Tradition in Maltese Law: The Essence of the Maltese Mix?

The aim of this paper is to provide valuable insights into the Maltese legal system with a special focus on private law. The assumption is that this legal system is the by-product of the “mixing” of innovation and tradition, resulting from the interaction of English law and continental law. A major role in the development of the system is played by courts. Some examples (moral damages and pre-contractual liability) are considered which highlight the importance of the function displayed by Maltese judges.

Unification of Private Law in Europe and ‘Mixed Jurisdictions’: A Model for Civil Codes in Central Europe

The paper discusses new research questions that hybridization of continental private law yields for comparative private law. In this context the mixed legal systems and especially the Quebec law will be debated in their possible tool-function to assist Europe in coping with recent developments in private law. Two central driving forces on the European regulatory policy landscape are in the focus of the research: i) the regulatory competition among mixed jurisdictions (Scott Law v. Quebec Law) as sources of inspiration for the new Civil Codes of the Member States and the academic projects on unification of private law (DCFR), a process which demands for reconsideration of the relation between the top down unification v. bottom up hybridization and, ii) the regulatory competition between the European regulatory policy and globalization of private law in the Member States under international uniform transaction law.

A Comparative Study of the Principles Governing Criminal Responsibility in the Major Legal Systems of the World (England, United States, Germany, France, Denmark, Russia, China, and Islamic legal tradition)

The purpose of this survey is to examine the underlying principles of criminal responsibility in selected common law and continental law jurisdictions as well as in the Islamic legal tradition through the lens of comparative law (legal jurisdictions of England, Canada, United States, Germany, France, Denmark, Russia and China are subject to the legal analysis). By conducting a comprehensive legal analysis of the concept of crime in selected legal jurisdictions, this study reveals the common legal features pertinent to the concept of crime that are shared by the major legal systems of the world. Particular attention has been given to the thorny and much debated area of the subjective element of a crime and the standards employed to demarcate between intentional and negligent conduct. Turning to comparative law as an invaluable tool of legal analysis, the study demonstrates that there are more common characteristics than originally anticipated regarding the concept of crime, as well as the basis of the principle of culpability in such major legal systems.

Structural and Textural Dimensions of Territorial State Organisation

In the framework of devolution, British scholars have inquired how to assess the constitutional position of the local government in the UK and its effect for improving or hindering autonomy and democracy at the local level. The purpose of this paper is to discuss the same topic from a more general and comparative perspective, combining conceptual tools of continental public law and political science. To do this the paper proposes to differentiate three concepts of territorial state configuration. These concepts are territorial structure, territorial texture, and vertical diffusion of state authority. This paper asserts that the confusion of these three dimensions has not only impaired an adequate assessment of the constitutional position of local governments, but that the structural dimension has been under-theorised, thus distorting measurements of subnational authority. Moreover, scholars have underestimated structural constraints upon changes in the local government position within the polity. Finally, an operationalisation of the new findings is offered by plotting selected countries in a Cartesian system comparing them from the perspective of territorial structure and vertical authority diffusion.

Legal Language in Intercultural Communication

This paper addresses the considerable role of legal translation in intercultural communication. Effective intercultural communication requires sufficient language skills and also extensive knowledge of the cultures involved, which encompass official social behaviour norms, enshrined in the corresponding legal systems. The basic legal terms often pose substantial difficulties even for experienced translators and, hence, to communication, because these terms nominate concepts that are inherently linked with culture, moral values and legal tradition of a given country. In intercultural communication the most widely used legal English is permeated by Anglo-Saxon legal system and concepts which have little or no equivalents in Romano-Germanic or other continental law countries. The authors present a comparative analysis of the translation strategies employed by the compilers of two main English-Lithuanian law dictionaries (V. Bitinaitė „Mokomasis anglų-lietuvių kalbų teisės terminų žodynas“ and O. Armalytė, L. Pažūsis. „Anglų-lietuvių kalbų teisės žodynas“) in translation of the English-Welsh law terms defining abstract common law terms, some specific English-Welsh legal professions and the English-Welsh court names. The findings of the analysis reveal the difficulties which the dictionary compilers have to cope with when translating culture-bound terms and the strategies chosen by them for problematic translations. The research also highlights the role of the legal language translator as the key figure in facilitating different cultural background comprehension of the legal terms and, what is even more important, specific aspects of legal systems; the latter being necessary for efficacious intercultural cooperation.

Book Review of Kyriaki Noussia, Confidentiality in International Commercial Arbitration: A Comparative Analysis of the Position Under English, US, German and French Law

The confidential nature of the international commercial arbitration (arbitration being understood as an alternative dispute resolution) is considered as one of the main advantages of the arbitration compared to the state justice. Confidentiality is part of arbiter status and a comparative approach can only be of interest. In fact, the subject-matter of this book is an argument of the thesis that qualifies the “international commercial arbitration” as a conceptual field still divided, employing many theories and local practices. The doctrine and jurisprudence analysis of four national legal systems (English, US, German and French systems) offers a holistic, relevant, and update approach concerning the question of confidentiality in international commercial arbitration. The author chose these national systems because they are deemed as representative of the major legal families: common law and continental law (Roman law and German law). The book is recommended for all those connected with arbitration disputes, especially international ones, from businessmen and lawyers to arbitrators and mediators. This volume is a recent monograph dealing with confidentiality in arbitration, which supplements the theoretical analysis with proposals pertaining practical solutions.