European Civil Law Research Articles

A Civil Law State in a Common Law Nation, a Civil Law Nation with a Common Law Touch: Judicial Review and Precedent in Louisiana and Argentina

The state of Louisiana and the country of Argentina have, at their base, a civil law legal tradition. Yet, both jurisdictions use a decentralized court system typically associated with the Anglo-American common law tradition. In the context of judicial review, a decentralized court system achieves uniformity in constitutional law through stare decisis in contrast to centralized systems which are more common in European civil law countries. Because Louisiana and Argentina do not formally recognize the doctrine of stare decisis but use a court system designed for that doctrine, it would seem that uniform constitutional law would be difficult in those two jurisdictions. This article explores why this is not the case by comparing the mechanics of judicial review in the United States, Louisiana, and Argentina. Indeed, through several practical effects, influence, and the overall convergence of legal systems, Louisiana and Argentina achieve desirable effects in judicial review with unique avenues for flexibility in certain circumstances.

The Doctrine of Precontractual Liability Under Chinese Law: A Comparative Outlook

The doctrine of precontractual liability was transplanted from the European civil law systems into Chinese contract law in 1999. Since then, it has gradually evolved into one with Chinese characteristics with the judicial interpretations of the Supreme People’s Court and numerous court decisions on precontractual liability. Although the doctrine of precontractual liability has been in use in China for almost two decades, little effort has been made to answer the following questions: What are the scope, nature and functions of the doctrine of precontractual liability? What remedies for precontractual liability are awarded to the aggrieved party? To what extent does it differ from its European counterparts after which it was modelled? This article aims to answer these questions through doctrinal and comparative analysis. It first delineates the doctrine of precontractual liability as stipulated in Chinese contract law and clarifies the distinction between precontractual liability and liability for breach of pre-contract. It then categorizes court decisions on precontractual liability into five categories in order to gain a better understanding of the scope of the doctrine in judicial practice and also investigates judicial approaches to the remedies for precontractual liability. This article further discusses the nature and functions of the Chinese doctrine of precontractual liability within the law of obligations.

The Power of Comparative Constitutional Law Reasoning in European Criminal Law Procedure

Abstract This paper explores the constitutional dimension of comparative criminal law procedure in a European context. It does so by focusing on the European civil law traditions and by explaining how the impact of constitutional law reasoning has changed the criminal law landscape. The paper argues that the influence of European Union law and the European Convention on Human Rights regime together with other comparative law effects have led to an adapted version of the comparative law project, where the orthodox distinction between civil law and common law is largely erased. Specifically, the paper focuses on the question of fairness and justification in the criminal law process, the principle of proportionality and the notion of dignity in a comparative perspective. The paper draws on both doctrinal and theoretical examples.

Генезис категории «фидуциарная собственность» в европейском гражданском праве

Генезис категории «фидуциарная собственность» в европейском гражданском праве

El gobierno corporativo en las sociedades peruanas: rompiendo el mito de las sociedades anónimas

This article develops the legal nature of corporations by establishing that their nature is dual and complementary, how their evolution has been, the types of corporations and their regulatory treatment. The author does not share the idea that our corporations are different from the rest of the world, points out that our legal system is a copy of European civil law, however, it could be thought that the idiosyncrasy of our society can influence corporations, maintains that there is another wrong idea that Peruvians can not have self-regulation in our acts as if they can have foreigners and we commit unlawful acts or frauds to companies that in other latitudes could not even imagine. It concludes by stating that, in the national legal system, our General Corporations Law sets out the corporate types, but unfortunately corporate malpractice allows that, in the Notaries, only limited companies or limited liability companies are constituted. There are no constitutions, for example, partnerships, partnerships.

The Power of Comparative Constitutional Law Reasoning in European Criminal Law Procedure

This paper explores the constitutional dimension of comparative criminal law procedure in a European context. It does so by focusing on the European civil law traditions and by explaining how the impact of constitutional law reasoning has changed the criminal law landscape. The paper argues that the influence of European Union law and the European Convention on Human Rights regime together with other comparative law effects have led to an adapted version of the comparative law project, where the orthodox distinction between civil law and common law is largely erased. Specifically, the paper focuses on the question of fairness and justification in the criminal law process, the principle of proportionality and the notion of dignity in a comparative perspective. The paper draws on both doctrinal and theoretical examples.

Chinaas Food Safety Law. Legal Systematic Analysis of the 2015 Food Safety Law of the Peoplees Republic of China

The rising interest in the agri-food sector of the People’s Republic of China (PRC) comes along with legal questions about import requirements and the interpretation of the PRC’s agri-food law in general. The Food Safety Law of the People's Republic of China of 2015 (FSL) is the basis of China’s food regulatory system. This paper discusses the institutional framework in which the Law is embedded, its objectives, and linked therewith its relation with science. This paper also covers specific obligations that derive from the FSL and legal liability in case of non-compliance thereof. Addressing the who, what, and how of the FSL, this paper aims to contribute to a comprehensive and systematic analysis of the PRC’s agri-food law in the European civil law tradition of legal scholarship.

Die Rezeption des kontinentaleuropäischen Zivilrechts in Taiwan und die Eigenständigkeit des taiwanischen Zivilrechts

Taiwan became a colony of Japan in 1895, and thus followed Japan in transplanting Continental European civil law. Early in the period of Japanese rule, Taiwanese civil matters were largely decided according to customs, which were informed by concepts and terminology of Continental European civil law. However, the ownership, pledge and mortgage of Continental European law had been partly introduced to Taiwan. Later in the period of Japanese rule, property law in the Japanese Civil Code, receiving Continental European law, took effect in Taiwan. In contrast, the status law relating to the Taiwanese was still applied to customary law and was shaped by terminology of Continental European civil law. Taiwan became a province of China during the period of four years after World War II, and it began to implement the civil law of China in the republican era. As a result, the Taiwanese status law was also modeled on Continental European law. Taiwan has been a de facto state since 1949, the year China began to be ruled by the communist party. Taiwan continues to enforce the civil law, which originated in Republican China, with its roots in Continental European law, and adds many elements from American law in the special civil law due to close political and economic ties with the United States. However, the theory and practice of civil law in Taiwan has been dominated by the jurisprudence and laws of Continental Europe, especially Germany. In post-war Taiwan, the majority of the first-generation legal scholars came from Republican China and were deeply influenced by Continental European law; the minority had been trained in pre-war Japanese law, which received Continental European law as well. Many Taiwanese legal scholars, from the second generation to today, directly borrowed from Germany or learned from Japan to introduce the civil law and its theories in post-war Europe to Taiwan. After the democratization of Taiwan in the 1990s, people in Taiwan have reformed their legal system for their own needs. With legal knowledge incorporating the ideas of Continental European civil law, a localized civil law has been shaped by the decisions of Taiwanese courts, the struggle of social movements in Taiwan and the reaction of Taiwan’s legislature. This law is unique among countries in East Asia because it is based on the social needs of Taiwan.

Bankruptcy stigma and the second chance policy: the impact of bankruptcy stigma on business restructurings in China, Europe and the United States

This paper deals with a topic of common concern to China, Europe and the United States: the negative effects of bankruptcy stigma on the second chance (fresh start) policy encouraging restructuring of businesses as an alternative to their liquidation. In most Continental European civil law systems, for example, business restructurings are still only aspirations rather than reality. This is to a great extent due to the ubiquity of intense bankruptcy stigma as a consequence of what, for example, creditors as well as the directors and officers of the bankrupt debtor avoid participating in restructuring proceedings. The resulting dominance of liquidations is perceived as a competitive disadvantage both for China and Europe compared to the United States that possesses the top model enshrined in Chapter 11 of the US Bankruptcy Code. It was for these practical reasons that the second chance policy was given clear priority by the European Union as best expressed in the Commission Recommendation of 12 March 2014 on a New Approach to Business Failure and Insolvency. Similar policy shift characterizes the 2007 Enterprise Insolvency Law of the People’s Republic of China as visible from Chapter 8 on reorganisation and Chapter 9 on compositions (workouts). While bankruptcy stigma is present also in the United States, its effects are the least “biting” in this country and are an issue primarily in the context of consumer-bankruptcies. In light of the above, this article’s main claim is that without proper understanding and acknowledging the impact of bankruptcy stigma, hardly could lawmakers’ efforts aimed at forging a legal environment that would incentivize restructurings of financially distressed businesses yield success. Although some research on the topic is available, it tends to be focused on consumer bankruptcies only. A comprehensive, empirically based, inter-disciplinary scrutiny of the impact of stigma on business reorganisations is still lacking just like a “handbook” for combating the bankruptcy stigma. This article attempts to open the doors to this new inter-disciplinary area of law with the tools of comparative law. Besides canvassing the pertaining scholarship’s hereinbefore achievements, the paper extends also to such so far neglected niches of the globe as China and the post-socialist countries of Central and Eastern Europe.

Publicly Manifested—Fatefully Determined—Invariably “Discreet”: The Assessment of Sexuality-Based Asylum Claims in Germany and France

One of the most controversial issues concerning sexuality-based asylum claims in recent years has been “discretion” reasoning—the notion that a claimant can avoid persecution by behaving “discreetly.” Though often challenged, such reasoning has remained resilient in the English-speaking common law jurisdictions, upon which research has mainly focused to date. This article broadens the debate by undertaking a detailed exploration of “discretion” reasoning in sexuality-based asylum claims in Germany and France, two of the major European civil law jurisdictions. In the first part, the article demonstrates that in very different forms “discretion” logics have traditionally also affected sexuality-based asylum claims in each of these jurisdictions. The second part of the article explores the effects that the Europeanization of asylum and the rejections of the “discretion” requirement by the UK Supreme Court in 2010 and the Court of Justice of the European Union in 2012 and 2013 have had on established French and German jurisprudence. The analysis reveals that rather than ending “discretion” reasoning in Germany and France, these developments have transformed it, such that it persists in a different shape. Much like in the common law jurisdictions, with all of its problematic implications, “discretion” reasoning remains deeply entrenched and resistant in German and French decision-making practice concerning sexuality-based asylum claims.

Professional construction of diversity management in Korea

IntroductionMany workplaces in Korea1 have put great emphasis on diversity. The Korean Workplace Panel Survey (KWPS) of 1,535 Korean workplaces surveyed in 2013 shows that 43% of the sampled workplaces have a set of policy statements for management. It is surprising that many workplaces in Korea have sought to manage diversity, because the in that country has been still male-dominant, ethnically homogeneous, and exclusive of the disabled.The expression workforce diversity refers to the differences among employees in a given workplace in terms of race, gender, age, ethnicity, nationality, language, physical abilities, disabilities, religion, cultural background, lifestyle, sexual orientation, tenure, and other variables that create socially meaningful distinctions among workers (Kossek and Lobel 1996). Diversity management refers to a variety of human resource (HR) strategies to recruit and retain employees with such diverse backgrounds (Magoshi and Chang 2009). Typical management practices include training, taskforces, affinity networks, and mentoring programs for particular minority groups within a workplace. These management practices and policies are usually designed to improve the inclusion of all employees into informal social networks and formal organizational programs (Jackson 1992; Kossek and Lobel 1996; Gilbert, Stead, Ivancevich 1999; DiTomaso, Post, and Parks-Yancy 2007).Since has recently attracted public attention in Korea, there is only a slight amount of literature on it. Only a few studies ask what the outcomes of management practices are (Lim 2010; Lee and Ko 2012; Lee et al. 2013; Min, Oh, and Park 2015). As many workplaces in the US have underscored and adopted various management practices to manage a diverse impartially and attract qualified employees with 'diverse' backgrounds (Kelly and Dobbin 1998; Dobbin, Kim, and Kalev 2012), studies regarding mainly rely on samples from the US. Building on the studies conducted in the US, I use the KWPS of 2011 and 2013 to examine factors related to whether or not workplaces in Korea have adopted a set of policy statements for management.In particular, this paper extends the literature on employment law and organizations into the Korean legal context. An important line of studies about employment law and organizations have mainly investigated the US cases, and these studies find how organizations introduce new employment practices in response to broad anti-discrimination law in Title VII of the Civil Right Act of 1964 in the US (Edelman 1990; Edelman 1992; Kelly and Dobbin 1999; Edelman, Uggen, and Erlanger 1999). These studies underscored that the legal uncertainty originating from the legal text in the common law system encouraged various social actors to participate in constructing practical meanings of the law and designing compliance programs.In contrast to the US case, the Korean legal system emulates the modern European civil law system, in particular the German system (Yang 1989). The main principle of that civil law tradition is to depend on written collections of the law so that there is no room for professionals to participate in constructing a practical meaning of laws (Glenn 2007). In other words, statutes are expected to be much less ambiguous than those in US laws. This suggests that HR and legal professionals may not be associated with the construction of the practical meaning of a law as has been the cases in the US (Baek and Kelly 2014).However, previous studies suggest that there may be openings for legal ambiguity even in a civil law system like Korea's. Indeed, professionals may affect the construction of the practical meaning of a law, as legal complexity has increased and the value of precedents and judicial discretion has been recognized in countries with a civil law tradition (Dainow 1966; Merryman 1981; Del Duca 2006). …

Dobre obyczaje w polskim prawie kontraktowym – wybrane zagadnienia

<p class="Standard"><span>Artykuł zawiera przegląd dobrych obyczajów w polskim prawie kontraktowym. Przegląd ten skłania do wniosku o narastającej potrzebie rychłego zastąpienia bazujących na ustawodawstwie PRL klauzul „zasad współżycia społecznego” oraz „społeczno-gospodarczego przeznaczenia prawa” – klauzulą dobrych obyczajów. Stanowi to konieczną przesłankę pełnej i rzetelnej europeizacji polskiego prawa cywilnego. W doktrynie prawnej krajów członkowskich UE, które nie wchodziły do bloku państw satelickich ZSRR, klauzule zasad współżycia społecznego oraz społeczno-gospodarczego przeznaczenia prawa jawią się jako zupełnie obce pojęcia i kategorie prawne, które nie mają żadnych odpowiedników w klasycznej, europejskiej cywilistyce. Powrót do „dobrych obyczajów” na gruncie polskiego prawa kontraktowego pozwoli na pełniejsze wykorzystanie dorobku doktryny i orzecznictwa powstałego zarówno w okresie II RP, jak i w krajach zachodniej Europy po II wojnie światowej, co niewątpliwie głębiej zakotwiczy instytucje polskiego prawa umów w systemie prawa UE.</span></p>

Jurysdykcja w sprawach roszczeń o naprawienie szkody wyrządzonej wykonaniem zabezpieczenia w rozporządzeniu (UE) nr 1215/2012

The article is devoted to national court powers in cases for damages for the claim security in Regulation (EU) No 1215/2012. The paper presents basic information about general provisions and special jurisdiction. The study is focused on damages for the claim security in the Polish civil procedure and the essentially legal meaning of tort, delict or quasi-delict in European civil law. An interpretation of the aforementioned subjects in the jurisdiction of Polish courts and the Court of Justice is presented. The author tries to answer the question of whether a person domiciled in one Member State may be sued in another Member State as regards as a civil claim for damages for the claim security awarded and carried out in another Member State.

Piecemeal Harmonization of European Civil Law

Piecemeal Harmonization of European Civil Law

A Comparative Perspective on the Concept of Ownership in Russian Law: From the Svod Zakonov to the 1994 Civil Code

The modern European unitary conception of ownership emerged from the dissolution of feudalism and achievement of a deeper understanding of Roman law to become an ideal of property law in the European Civil-Law tradition. Prior to its dissolution European feudalism represented hierarchies of legal tenure in land, such as the division of land ownership between dominus directus (direct owner) and dominus utilis (beneficial owner) and overlapping hierarchies of social class descending from monarchy and aristocracy to bonded serfdom. Support for the resolution of divided land ownership and victory for the unitary concept of ownership was found in the Roman law tradition. The dissolution of feudal hierarchies took different historical courses in the legal traditions that we now identify as the French, German, Common-Law and Russian legal systems and with great local variation even within those emergent traditions. The unitary concept of ownership is found today in the French and German Civil Codes and is for practical purposes reflected in the prevalence of the common-law tenure of freehold. In Russia the systemized digest of the laws of the Russian Empire, the Svod Zakonov of 1832, provided no civil-law notion of divided ownership or perpetual rights. In the Soviet era exclusive state ownership of land and the means of production was also viewed as unitary, which raised serious questions about how state agencies and enterprises could engage in transactions with their assets and products. Venediktov’s celebrated doctrine of the right of operative management, codified in the Civil Code of the rsfr of 1964, provided legal recognition of de facto proprietary rights for state enterprises. This introduced a form of divided ownership ‘on the ground’ despite the dogma of unitary state ownership. This reality further manifested itself in widespread division of ownership between land and buildings. The Civil Code of the Russian Federation of 1994 retained and even extended some of these solutions that relied on split or divided ownership. This might have been a pragmatic way forward in the early 1990s, however twenty years later the demands of a modern sophisticated legal system require a policy trajectory back toward a modern European unitary conception of ownership. The Russian Civil Code thus should be extended in this direction.

IN THE NAME OF A LAW: ISLAMIC LEGAL MODERNISM AND THE MAKING OF AFGHANISTAN'S 1923 CONSTITUTION

AbstractIn 1919, a new amir in Afghanistan named Aman Allah Khan launched an ambitious campaign to reorder his government into a constitutional monarchy. By 1923, Afghanistan had ratified its first constitution, supplemented by scores of legal and administrative codes. Whereas the latter have long been attributed to European borrowings or Kemalist imitation, this article uncovers two neglected features of Aman Allah's reformist project to argue that the making of Afghanistan's 1923 Constitution presents a distinctive path of state building in the region: Islamic legal modernism. First, by upholding the Hanafi school of Islamic jurisprudence as the basis of Afghan substantive law, Amir Aman Allah sought a cohesive national judiciary through the codification offiqh, not European civil law. Second, by synthesizing the expertise of a diverse cast of Muslim scholars and professionals—from Afghan clerics to Ottoman and Indian technocrats recruited to Kabul—he attempted to avert a rift between “Islamic” and “secular” lawmaking.

Dobre obyczaje w polskim prawie kontraktowym – wybrane zagadnienia

This article contains an overview of good manners in Polish contract law. The overview leads to the conclusion that following clauses – rules of social coexistence and socio-economic purpose of law, which are based on the legislation from the time of the Polish People’s Republic (PRL) – need to be replaced by the clause of good manners. It is necessary for the full and thorough Europeanization of the Polish civil law. The two aforementioned clauses appear to be completely foreign concepts and legal categories in the legal doctrine of EU member states which were not the satellite states of the Soviet Union. These clauses have no equivalents in the classic European civil law studies. The return to the good manners in the Polish contract law will undoubtedly more deeply anchor the Polish institutions of the contract law in the legal system of EU.

The civil standard of proof—what is it, actually?

Unlike common law, Continental European civil law does not strictly distinguish between the standards of proof applicable in civil and criminal matters, respectively. In civil law countries such as Germany and Switzerland, judges are supposed to use the same (high) standard of ‘full conviction’ in both criminal and civil cases. This study is the first to look at the standard of proof actually used by judges and judicial clerks in a civil law country (Switzerland). It is shown that the standard actually used differs from the one normatively prescribed. No difference between the estimated decision threshold for members of the courts and members of the general population is found. The results suggest that the standard of proof actually employed by judges of a civil law system is not much different from the common law’s ‘preponderance of the evidence’ standard, despite the doctrinal insistence to the contrary.

Hobbes, civil law, liberty and the Elements of Law

When he gave his first political work the title The Elements of Law Natural and Politic, Hobbes signalled an agenda to revise and incorporate continental Roman and Natural Law traditions for use in Great Britain, and from first to last he remained faithful to this agenda, which it took his entire corpus to complete. The success of his project is registered in the impact Hobbes had upon the continental legal system in turn, specific aspects of his theory, as for instance the right to punish, entering the European civil code through Pufendorf, and remaining to this day. This is a topic of considerable importance at a time at which the UK is considering scrapping the European Union, with all the attendant legal ramifications that entails. But strangely, despite some acknowledgement of Hobbes’s contribution to European civil law, and specifically the German civil code, the larger legal context for his thought has not thus far been systematically addressed.

The importance of reforming civil law in formerly socialist legal systems

The modern civil law emerged from many centuries of development. In the 18th and 19th centuries European civil law based on Roman law foundations carried forward the concept of the individual citizen at the heart of the liberal revolutions. New conceptions of the role of the state and the development of national civil codes re-orientated this conception. The Soviet socialist legal model resonated faith in ‘top-down’ state control while at best tolerating a socialist version of the civil law. Today, internationally the philosophical characteristics and legal rights of the individual citizen are explicated in public law and the role of civil law is to provide the institutions, doctrines and transactions of civil society and commercial law.A distinguishing feature of the civil law is its enforceability horizontally in society directly against those who fail in their responsibilities and does not depend on authority acting ‘top-down’ within the public law realm. There are advantages to society and the state in fostering direct horizontal enforcement. Without pro-active reform socialist and formerly socialist legal systems have restricted capacity to gain these advantages. This is not an argument against the importance of constitutionalism, human rights protection and anti-corruption initiatives – the civil law provides an essential juristic background to public regulation and a direct method of remediating loss occasioned by unlawful action.