European Legal Systems Research Articles

Procedural Law as an Exercise in Reconciling Public Interest and Individual Rights: The Example of Res Judicata

Res judicata is a quasi-universal principle, present in every modern European legal system. Although it is understood in very different ways in Civil Law and Common Law traditions, it plays a remarkably similar role in both. This is notably due to the fact that res judicata is based on overarching aims present in all procedural legal systems: the public interest in ensuring the finality of litigation and the authority of courts, and the protection of litigants’ rights. It is necessary to take into account both objectives in order to understand the doctrine of res judicata. These aims sometimes conflict and each legal system attempts to reconcile them within its specific rules concerning res judicata. A comparative analysis based on English, French, Italian, Spanish and European Union law shows how the choices made in each system express a balancing act between them.

The Right to Explanation:Between the EuropeanExperience and its Influenceon Brazil

The advantages of having automated decisions make it necessary to have mechanisms for coexisting with its opacity. Legal systems in Europe and Brazil sought to create systems of transparency that allow greater control by individuals in terms of access to personal data. Thus, leading to a question whether there is a “right to explanation” is either legal systems. The article analyses how the debate in Europe influenced the discussions in Brazil and uses a comparative methodology to understand how the two legal systems have structured a mechanism based on transversal principles of transparency and the rights of access to information to functionality to establish a “right of explanation”. As a conclusion, the paper notes the limits and potentialities of this right as it was structured, highlighting that its scope is still open for debate, particularly in Brazil, where ongoing discussions, chiefly in Congress, may impact the right itself and its implementation.

Inheritance of social media accounts in Germany and Sweden

The question how the legal framework may cover Internet relations is not new and has been discussed at least since the end of the 20th century. But over the past decade and a half, the electronic environment has been developing, while classification and regulation of new institutions raise some complexities. One of them is social media accounts. Their legal status as objects of rights is unclear since such accounts are a set of rights and relationships laying at the intersection of different institutions and law branches such as contractual relationships, copyright for posts and photos, personal correspondence, and privacy. At the same time, commercialization of social media accounts is gaining momentum, which turns them into an “electronic enterprise”. The purpose of this research is to identify order of inheritance of accounts in Sweden and Germany. These legal systems are close to the Russian one, the results obtained may be used to improve Russian legislation. Moreover, the authors know the relevant foreign languages, which allows them to analyze the legislation in detail. The object of analysis is the relationships that arise in connection with the need to determine the legal fate of a user’s account after his death. The scope of inheritance relations is chosen because this issue has become increasingly common in law enforcement practice. Besides, the Federal Supreme court of Germany recently issued a controversial decision which might affect German law, other European legal systems, or the relevant elements of the content of user agreements. The authors use the comparative method, methods of analysis, synthesis, deduction, and induction. The authors’ conclusion is the issue is unsettled. The solution proposed by the German Federal Supreme court is imperfect. In the article there are also some comments on improving Russian regulation, taking into account the experience of the legal systems studied.

Climate litigation in France, a reflection of trends in environmental litigation

While climate litigation has developed somewhat in recent years and has received much attention from both media and legal scholars, we examine it in the French context to determine its degree of originality compared to environmental litigation as a whole. On the one hand, the main successes of climate litigation can be explained by two important trends in environmental litigation. It builds on the strength of the European legal system and takes advantage of the progress made in legal redress for ecological damage. However, on the other hand, it faces the same limitations as environmental litigation. It is difficult to impose positive obligations on the legislator and environmental objectives are poorly integrated. We conclude that climate litigation reflects the major trends in contemporary environmental litigation. Its real originality lies rather in the establishment of a “trajectory review” by the judge in the Grande-Synthe case.

Mizhnarodno-pravovi mekhanizmy zabezpechennia pryntsypu hendernoi rivnosti

The peculiarities of international legal mechanisms for ensuring the principle of gender equality are studied. The issues studied in the scientific work are actualized through the prism of the historical retrospective of the international legal heritage in the field of research and outlining the main problems that remain unresolved today. The issue of gender equality, which has been exacerbated by quarantine restrictions due to the COVID-19 pandemic, is highlighted. The specifics of legal regulation within the international and European legal systems are determined. It is pointed out that the civilizational achievements of legal regulation in the field of gender equality show considerable interest on the part of international actors in these issues, however, today we still cannot say the real effective existence of such protection mechanisms. comprehension and reassessment. The legal consolidation and application of positive discrimination as a policy endowed with an arsenal of tools, measures and actions taken to ensure the rights and well-being of members of certain groups depending on their ethnic and cultural origin, social class, disability, gender, marital status, pregnancy, and motherhood etc. It is emphasized that the problem of legal inequality remains widespread today, even though several international legal instruments are aimed at achieving real equality between men and women. International legal standards are a kind of minimum requirements of the international community to states that, by implementing a set of measures, will be able to overcome gender inequality. The position on the necessary measures of legal response and control in the field of gender equality the elimination of all forms of violence against all women and girls in public and private spheres, including human trafficking and sexual and other forms of exploitation; elimination of all harmful practices (child, early and forced marriages and operations that harm the female genitalia).

Kierunki zmian szwajcarskiego prawa spadkowego

Article Directions Swiss-inheritance law-changes deals with the issues of the wider rights of inheritance law in force in Switzerland. Given that the close ties of Polish law with European law are not without influence on the Polish civil law, including inheritance laws, there is an attempt to analyze the wording of the standards of modern Swiss inheritance law and jurisprudence BGer exegesis in this regard. Not to mention the role of the Swiss Civil Code, which became the model for many other laws, including the Polish legislation. In the era of draft amendments to Polish law of inheritance may have a value of retrospective look at the evolution of a European legal systems. The article is thus an attempt to describe the influence of the most significant revision of choices in Swiss inheritance law (including those relating to the following : equal rights for descendants of heredity, changes in the inheritance by a spouse, inheritance rights of a surviving spouse, registered same-sex partners) at present condition of inheritance law in this country. Analysis of the above solutions allowed to reply the question: what conditions underlay the choice of orders of succession operating in Switzerland, and what conditions determine a wide selection of the class of persons appointed to inherit. The specific practices of legal succession in force in that legal system based on different assumptions of succession (the reserve system, the conventional inheritance) were also taken into account. There were analyzed the following: development of succession rights of selected groups of relatives of the deceased, including above all the deceased spouse and descendants, but also registered partners. Attention was paid to include Such a solution – not found in the Polish legal system – was also indicated, i.e. the accumulation of shares of succession and vested right to use the inheritance by a spouse in force until 1988. Significant practical importance can have also the discussed in the article Erbschleicherei phenomenon concerning all the legal systems, which have had a risk of fraudulent acquisition of inheritance by third parties. The analysis of the descendant rights vested in those connected with the testator only by factual relations, and also detailed arrangements within contractual orders of succession, where a wide choice – after decades of application – is found in Swiss law, may provide a clue to the Polish legislature as to the possible future legislative changes.

The Rise of Hermeneutics in Human Rights Interpretation in the Case-Law of the ECtHR and the Domestic Courts

This paper aims to argue that over approximately the last 70 years, both constitutional courts in Continental European legal systems and the European Court of Human Rights have implemented an evolutive (dynamic) approach to human rights by making broad interpretation of both constitutional or Convention rights. It also argues that the philosophical grounds of this interpretive approach are consistent with Gadamer’s conception of “philosophical hermeneutics,” which refers to interpretation as a cognitive dialogue on the text, between the author’s and the reader’s intent, which is not strictly bound by an obligation on the reader to adhere to the author’s intent.

PROTECTING THE RIGHTS OF CRIME VICTIMS FOR THE SAKE OF PEOPLE BROUGHT TO CRIMINAL LIABILITY

The article raises issues related to the lack of effective mechanisms for protection of the rights of victims of crime under the Bulgarian Penal Code. The author discusses the shortcomings in the criminal proceedings and how the application of the norms for protection of the accused’s consignment in the commission of the crime, in fact, limits the right to defense of the victim. An overview of the existing regulation of the problem in the European legal system has been made. Finally, the author examines the contradictory case law and how it in itself restricts the victim’s right to a fair trial.

Better to Explain or to Testify? The Position of the Accused as a Source of Oral Evidence in a Criminal Trial in a Comparative Perspective

In this article the position of the accused as a source of personal evidence in three different European legal systems: Poland, Germany, and England, will be presented. This analysis will be oriented to understand the way of functioning of the two different models of giving statements of fact by the accused at a criminal trial. The main difference is that in the common law model of criminal trial the accused may only present evidence by testifying as a witness speaking about what happened, whereas in the continental model the accused gives a specific personal type of evidence (that in the Anglo-Saxon literature is rather described as “oral evidence”) that is known as explanations. From this differentiation several consequences arise: among others, the possibility of presenting untruthful explanations and presenting many versions of events in the continental model which have to be assessed by the judges. At the same time, the same right of the accused to silence and not to give incriminating evidence applies in both models of criminal trial – however, in two different shapes and with different types of limitations.

Aharon Barak’s Concept of Human Dignity and the Notion of Dignity in Jurisprudence of Polish Constitutional Court

Israeli scholar and judge, Aharon Barak rejects the position that dignity is an axiomatic, universal concept. Moreover, he is in favor of “spacious” understanding of the right to dignity, making it a vast and broad category. The aim of the paper is to examine whether the concept of dignity presented by Barak is useful to understand the approach to human dignity as a legal concept in those Central European legal systems which have been influenced by German constitutional theory. In that regard the jurisprudence of Polish Constitutional Court is examined. The author is not fully convinced by Barak’s approach to dignity. The conclusion is drawn, however, that Barak is right when claiming that the status of an absolute right granted to the right to dignity means also that its scope is defined in a restrictive way.

O Direito à Explicação nas Decisões Automatizadas: uma Abordagem Comparativa Entre o Ordenamento Brasileiro e Europeu

As decisões automatizadas podem trazer grandes benefícios para a humanidade, sendo inegável também que as máquinas representam perigo à autonomia do ser humano, como indivíduo, e podem gerar mecanismos potencialmente discriminatórios em razão da possibilidade de manejo perverso de algoritmos. Embora as tecnologias da inteligência artificial utilizadas nas decisões automatizadas sejam apresentadas como neutras, elas não o são, sendo algumas utilizadas inclusive para modulações de comportamento humano obtidas com o perfil da extração de dados, construindo-se um mundo perfeito de consumos personalizados. O presente estudo tem como objetivo analisar o conceito de decisão automatizada e a extensão do alcance do direito à explicação no tratamento automatizado de dados no ordenamento brasileiro em comparativo com o ordenamento europeu. O direito à explicação, um dos imperativos das orientações éticas para uma inteligência artificial de confiança nas decisões automatizadas, mostra-se de extrema relevância como critério oponível aos mecanismos discriminatórios e ao combate à opacidade desse tipo de inteligência. O fato é que toda decisão automatizada deve ser explicável, tanto no que se refere à sua lógica subjacente quanto ao fundamento da decisão. Também não é razoável a exclusão do elemento humano na revisão da decisão automatizada. O presente trabalho observará, por meio comparativo, os requisitos autorizadores da decisão automatizada e suas consequências. Além disso, para a busca do resultado almejado, será realizada uma comparação do conceito do direito à explicação nos ordenamentos europeu e brasileiro. Como resultado do presente estudo, concluiu-se que a União Europeia trata a decisão automatizada como uma proibição, enquanto no Brasil existe um direito à revisão da decisão automatizada, deixando de garantir também que essa revisão seja humana. Inexiste no Brasil, portanto, amparo legal para o direito à explicação.

Succession of Digital Goods. A Comparative Legal Study

The purpose of this article is to present possible solutions to the problem of access to digital contents left by a deceased user of Internet services under different European legal systems. Discussion of this issue from a comparative perspective will allow the drawing of general conclusions about the direction de lege lata in which European legislation is heading. In my opinion there should be dedicated legal provisons introduced into the polish civil code which would pertain to digital goods. This would also facilitate the harmonization of inheritance matters in a European perspective. Technological development requires amending the civil code to fit changing reality.

Interim – Management as a new Form of Employment – opportune in a globalized context

Abstract Non-standard forms of employment have become current practice in most European legal systems, by virtue of their positive effects on labor flexibility – beneficial to both employers and employees. From a company’s perspective and interests, regarding the current context of labour relations, a new approach is needed and highly recommended. In an unpredictable business environment, only those innovative companies which have proved able to identify business opportunities and adjust to change have remained competitive. Therefore, the interim management program – as a new type of employment - brings forth an extensive potential for development. Since Romania is a country where this contractual model is relatively little known, this paper addresses some of the most obvious elements of this atypical contractual arrangement, which most authors deem very appropriate in the context of globalization. Our comparative approach seeks to identify various legislative perspectives on interim management and the conclusions of our research suggest the usefulness of the introduction the interim management model to the national labor market. The comparison of this form of flexible employment and other forms used in Romanian companies has been conducted.

The Role of Legal Philosophy in the Protection Women From Violence

This paper aims to examine how the development of an integrated criminal justice system in handling cases of violence against women and the role of legal philosophy in it. This research is normative legal research. This study concludes that the Continental European legal system influences the legal system in Indonesia, so procedural law is an administration of justice that provides guidelines for the working of the institutions involved in the adjudication process. Gender equality during the drafting of the Criminal Procedure Code has not yet become an important issue. This has an impact on the absence of an article formulation in the Criminal Procedure Code that accommodates the special interests of women dealing with the law, both as perpetrators and victims, especially women as victims of gender-based violence, even though many women who are victims of gender-based violence generally experience trauma from the events they experience. The concept of an Integrated Criminal Justice System for Handling Cases of Violence against Women (SPPT-PKKTP) was built as an effort to support the state to be able to carry out its constitutional obligations to fulfill women's human rights in conflict with the law, especially women who are victims of gender-based violence. Considering that the operation of the Criminal Justice System (SPP) is generally regulated based on the Criminal Procedure Code, to present the SPPT-PKKTP so that the criminal justice procedure law becomes a victim perspective, advocating the SPPT-PKKTP concept into the Draft Amendment to the Criminal Procedure Code is something that needs to be done. Philosophy of law is the basic foundation of legal science; it can explain that legal philosophy greatly protects the role of human rights, which guarantees the protection of women.

White-Collar Crime: Contemporary View

The article touches upon the problem of white collar criminality and presents a contemporary view of the phenomenon. The concept of white-collar crime, first introduced by Edwin H. Sutherland in 1939, immediately became the driving force behind the discussion undertaken by criminologists and sociologists of that time. Since then, many studies have been conducted in order to answer the question about who actually is a “white collar” – why do respectable, well-situated individuals decide to enter the path of crime? The author contrasts two types of definitions – the subjective white-collar crime definition developed in Anglo-Saxon culture and objective definition of economic crime functioning in Europe. It is significant that the crime of white collars has never really been systematized in the Polish legal system (and most of European legal systems), in contrast to economic types of crime.The author compares recent literature, presents characteristics of white-collar criminals and comes to the conclusion that in this specific group of criminals the ties between the perpetrator and the community in which they live are very weak. Finally, the article touches on a problem of possible beneficial consequences of attempting to investigate the scale of crimes committed by white collars.

Immigration and Multicultural Citizenship in Europe: Insights from the Framework Convention for the Protection of National Minorities

Abstract Multicultural citizenship, a set of group-differentiated rights for minority cultural groups, is now a common feature of most domestic legal systems in Europe. The conventional view, widely reflected in practice, suggests that ‘strong’ rights of this sort should be restricted to so-called ‘historical’ minorities. However, the increasingly long-standing presence of distinct cultural groups of immigrant origin raises the question of whether, and to what extent, the latter should also be granted stronger forms of multicultural citizenship. This article addresses this question by reference to the Council of Europe’s Framework Convention for the Protection of National Minorities, a central pillar of the international minority rights regime in Europe. The article analyses the application of the treaty to immigrant-origin groups in the Czech Republic and the United Kingdom, showing that the scope of protection afforded to such groups is stronger than previously assumed, though less far-reaching as compared to their ‘historical’ counterparts.

Victims’ Rights Looking Good on Paper — How Criminal Prosecution in Germany Fails Victims of Sexual Violence

AbstractWhether in Germany or abroad, victims of sexual violence typically played only a minor part in criminal proceedings, serving primarily as witnesses due to the widespread public and objective nature of the trial.1 This led to victim disempowerment and a paternalistic method of State protection of victims.2 During the last decades, this perception underwent major changes in European legal systems, owing to a rising awareness of victim’s needs, especially in cases of sexual violence.3 International and European conventions and treaties played a major role4 by establishing an international regulatory framework. To implement those international standards, domestic criminal laws have changed significantly on both substantive and procedural levels. Today, Germany’s criminal procedure law contains many mechanisms for protecting victims. Nevertheless, in cases of sexual violence, the implementation of these mechanisms in criminal proceedings leaves much to desire due to the affect of gender stereotypes and rape myths. This Article argues that in these cases the law in action ultimately fails to meet international requirements.

The Development of Consumer Protection Policy from Roman Law to Modern European Union Law

The article examines the development of consumer protection policy from the most ancient historical acts to modern legal acts of the European Union. The key laws of the Roman Empire in the field of consumer protection have been studied, among which the main ones are: «Lex Iulia de Annona», «Edictum de pretiis rerum venalium — Edict of maximum prices», «Civil Code» of Emperor Justinian. It is determined that the studied legislative acts were the first attempts to consolidate the protection of the rights of buyers (consumers). Roman law, which became the basis of modern legal systems in Europe and many non-European countries, has not lost its relevance. Ancient Roman laws are compared with the modern practice of the European Union. The history of the emergence of consumer law in the European Community is considered, which is divided into three key stages from the establishment of the European Community to modern EU policy. It is determined that at the beginning of its creation the EU policy of consumer protection was considered as an element of ensuring the sustainable operation of the internal market. The key constituent acts of the Union are considered, among which the Treaty of Rome of 1957, the Single European Act of 1987, the Treaty of Amsterdam of 1997 and the Charter of Fundamental Rights of the European Union of 2000 are highlighted. The analysis of Art. 2 of the Treaty of Rome stipulates that one of the key goals — protection and improvement of living standards was interpreted also as consumer protection. This strategy was later strengthened by the Amsterdam Treaty of 1997, which identified the promotion of a high level of consumer protection as one of the Community’s tasks. The current EU policy in the field of consumer protection, which is aimed at updating legislation in accordance with modern realities, is studied. Among the key acts of secondary law is the EU Directive № 2019/2161, which focuses on better application and modernization of legislation on consumer protection and amends existing EU directives. It is determined that the current consumer protection policy in the EU ensures the proper and effective functioning of the single market through constant updating of legislation taking into account social, technological, economic and environmental changes.

РИМСКОЕ ПРАВО – ОСНОВА ЮРИДИЧЕСКИХ ЗНАНИЙ ОБ АПЕЛЛЯЦИИ ПО ГРАЖДАНСКИМ ДЕЛАМ

Appeal as a guarantee of the right to judicial protection, appeared and took shape in the Roman civil procedure. Thanks to the reception of the Roman law the achievements in the field of appeal were adopted by the European legal system, which allowed to create a unified basis for the legislative appearance of the right to appeal a court decision and proceedings in the appellate court. Since the beginning of the twentieth century, as part of the widespread reform of civil proceedings, changes have been made in the appeal process. Many of them are in line with the provisions of the Roman sources of law – the Digest of Justinian and the Code of Justinian. Legislative regulation of Russian civil appeals is characterized by goal ambiguity, which negatively affects the quality of judicial protection and necessitates changes. The experience of Roman appeal allows to answer topical issues of appellate procedure, to determine the vector of development of the appellate court proceedings. The article proves that the source of legal knowledge about civil appeal is corresponding regulations of Justinian’s Code and provisions of Digest of Justinian.

Prawo rzymskie to nie tylko Digesta. Kilka uwag nad książką Łukasza Jana Korporowicza „Prawo rzymskie w Anglii w XVIII wieku. Nauczanie, studia, nauka”

<p>Polish research on Roman law is traditionally concerned first of all on the private law and its reception in European legal systems. However, very few publications deal with the role Roman law played on the British Isles. One of the important exceptions is Łukasz Jan Korporowicz’s research from the University of Lodz. This article analyzes his last book entitled <em>Prawo rzymskie w Anglii w XVIII wieku. Nauczanie, studia, nauka</em>. It describes the system of teaching Roman law in England in the 18<sup>th</sup> century and the role that graduates of Roman studies at Oxbridge played in English society at the time. First of all, the pioneering nature of reviewed work was indicated, as a similar one has not yet been published not only in Poland, but also in the world. By analyzing the subsequent parts of the book, their critical analysis was made and its strong and weaker elements were indicated. The conclusions indicate a very high scientific level of the reviewed book.</p>