Substantive Law Research Articles

A terrorist mindset: findings from an empirical enquiry into prosecutions, evidence, and mindset material

Abstract This paper explores the use of mindset material in terrorism cases. Mindset material is a broad category of evidence, including social media activity and internet search histories, relied on to infer or imply that the accused is affiliated or aligned with terrorists. Although mindset material plays a central role throughout the justice process in terrorism cases, no work to date has explored and discussed its use in depth. In this paper I draw on doctrinal and empirical findings, including interviews, to examine how and why it has come to play such a central role in terror cases. While mindset material is a well-intentioned tool used to selectively enforce broadly drafted and vaguely defined terrorism offences, it is also a blunt tool, and sees great emphasis placed on the accused's inferred status as terrorist (or not). In this paper I explore and problematise the use of mindset material and the inferences drawn from it, specifically in relation to to fantasists, the merely curious, and young autistic defendants. I posit that mindset material is symptomatic of a need to revisit the substantive law and to rethink the proper role of the criminal law in preventing terrorism.

Identification of Legal Psychology as an Independent Branch of Law

The science article conducts a theoretical and legal analysis of a new field of scientific knowledge – legal psychology from the standpoint of its perception as an independent branch of law. In the context of the above, the problematic aspects of legal psychology as a scientific, educational and applied branch of legal knowledge are studied on the basis of previously developed by legal psychologists levels of interaction and integration of law and psychology. The formation of legal psychology as a science and vectors of application of its achievements in judicial practice is analyzed. The author's approach in the formation of a new independent branch of law – legal psychology and determining its place in the classification of branches of law is proposed. The author emphasizes the need and urgent demand for the separation of legal psychology as a separate special branch of law that can regulate specific legal relations inherent in the fundamental (profiling) branches of law. The relevance of the article is due to the fact that in domestic legal science the division of the legal system in the field is assessed not in terms of its practical value, but rather in terms of confirming and defending certain scientific and theoretical ideas and concepts, contrary to the expediency of combining certain legal relations in the branch of law to achieve the desired social result through comprehensive study and regulation of specific relations. This, in turn, slows down the formation of new branches of law demanded by legal practice, among which legal psychology is singled out. It is emphasized that the question of the branch affiliation of legal psychology has not only theoretical but also practical significance, uniting individual legal relations in the field of law in order to achieve the desired social result through comprehensive study and regulation of these relations. Attention is drawn to the special classification of legal psychology as a special branch of law, as the latter combines the rules of law governing public relations and related to primary social relations aimed at concretization, strengthening certain rules of basic branches of law, while providing special legal regime for a particular type of social relations. By subordination in legal regulation, legal psychology belongs to the procedural types of branches of law, as it combines the rules of law that determine the procedure, the order for implementing substantive law (criminal procedure, civil procedure, commercial procedure, administrative procedure law). It is proposed to include legal psychology in an independent branch of law, given the presence of features that are inherent in the branches of law; the specificity of the regime of legal regulation; its direct connection with the needs of practice; recognition of its achievements in judicial practice; unification of certain legal relations in the subject of law; conditionality of functional purpose and the place of this industry in the legal system (its type in the classification of industries).

An Interpolity Legal Regime in the eighteenth century: 
procedural law of prize

Abstract Prize law was a legal regime that played a crucial role in maritime trade and warfare in the European imperial world before the twentieth century, governing both the capture and disposition of enemy property seized by belligerents at sea during wartime. Prize law outlined the rules by which captures were to take place and how captured property was to be handled, adjudicated, and (if “condemned” or deemed a valid capture), disposed of. All European maritime powers had prize regimes during the early modern era, which collectively adjudicated the fates of tens of thousands of vessels worth the equivalent of hundreds of millions of today’s dollars. This article examines the procedural law of prize in the long eighteenth century: the rules that governed how legal actors in the prize regime brought cases before tribunals and the tribunals’ rules for adjudicating them. It shows that the law of prize was an interpolity legal regime, generated within the ambiguous legal spaces that existed between the jurisdictional boundaries of individual states and empires. The article focuses on three important areas of procedural law for evidence of the interpolity character of the prize regime. It looks first at the distinctive role played by mariners in prize procedures. Captains of privateers and other capturing vessels functioned as quasi-officers of the court, responsible for assembling the documentary record that prize tribunals used to adjudicate captures and bringing the cases before the courts. Imperial prize regulations gave almost no guidance on the rules that they were to follow. The proper procedures were defined by mariners and merchants themselves, as unwritten rules articulated at sea. Second, we turn to how the prize tribunals managed language diversity and translation. I show that, a few exceptions aside, prize tribunals did not acknowledge linguistic difference among litigants. Instead, the tribunals relied on silent and often unacknowledged translation processes, which embedded in their proceedings a fiction that all of the actors before them communicated in a common language. Last, the article shows that prize tribunals applied foreign law in their proceedings, in ways that were not formally authorized by imperial law. By focusing on the neglected procedural law of prize, this article offers a different view of the prize regime than the one that has been painted by many studies of substantive law of prize in the long eighteenth century, in at least two ways. One is that studying the procedural law of prize casts into sharp relief the bottom-up character of prize law. Far from being dictated by sovereigns or from imperial centers, much about the prize regime was created informally by lower-level legal actors. Second, a focus on procedural law reveals important continuities in prize law across space and time. Substantive prize law during the period saw extensive debates about the nature of neutral rights, among other issues, with different empires articulating radically different doctrines. The procedural law of prize, true to its interpolity origins, remained remarkably constant across empires and over time.

Study on the Application of the Clauses of Respecting the True Will of Minors in Custody Disputes

Since the implementation of the Civil Code in 2021, the true will of minors has become the important accordance for courts to verdict the ownership of the child custody of minors. However, the clauses of respecting true will of minors have a weak institutionalization. There is a lack of a procedure to explore true will of minors and a standard to weigh that, causing inconsistent application of clauses in judicial practice. In order to realize the legislative goal of substantive law for respecting true will of minors, a procedural mechanism shall be established for listening and exploring true will of minors, and the applicable standard for measuring shall be specified when there is a conflict between true will of minors and other maintenance conditions. The applicability of the clauses of respecting true will of minors shall be strengthened.

Illegal Wildlife Trade in Bangladesh and India: A Study of Comparative Laws

Poaching of wildlife and misuse of plant habitats were considered one of the local, small-scale activities carried out by opportunists or miscreants for the purpose of illegal trade or smuggling of certain species. However, the irony is that over the past few decades. It has progressively become a major contributor to illegal trade with a hotspot for serious crimes" including those involving wild animals. Wildlife trafficking has become a serious threat to ecosystem conservation, putting species at risk of extinction and causing loss of biodiversity. The main objective of this work is to ensure that Bangladesh's legal framework is compatible with international regimes, particularly in preventing wildlife trafficking. Additionally, the study undertook systematic research to assess Bangladesh's commitments, performance, and limitations and compare them with the situation in India. Bangladesh is classified as a riparian country under IUCN Red List criteria IV and V. The study reviewed books, journals, research articles, supplements, news, and analysis on both substantive and ancillary national laws, beyond the Wildlife Crime Convention, providing a comprehensive set of legal rules and principles governing interactions between traffickers and species.

Special Collegium Activities on Certain Categories of Cases (1934–1938)

Special collegiums operated in 1934–1938 as part of the Supreme Court of the USSR, the supreme courts of the Union republics, regional and regional courts, and the main courts of the autonomous republics. Their creation can be considered as an experiment in transferring cases of state crimes from non-curial to judicial authorities. The special collegiums activities were provided by the NKVD, special departments of the prosecutor’s office and the sector of special courts of the People’s Commissariat of Justice of the USSR. Their personnel consisted of former NKVD officers and nominees of local justice authorities. All this makes it possible to characterize them as bodies of special justice. The most notable cases considered by special collegiums were cases of anti-Soviet agitation (Article 58–10 of the Criminal Code of the Russian Federation), cases under the decree of the Central Executive Committee and the Council of People’s Commissars of the USSR dated August 07, 1932 («The Law on Three Spikelets») and cases of banditry (Article 59-3 of the Criminal Code of the Russian Federation). All of them were considered within the framework of the campaign justice model. It was characterized by an expansion and narrowing of the interpretation of the norms of substantive law. This allowed ordinary crimes and administrative offenses to be considered as state crimes. The penalties were regulated. This led to unstable judicial practice. The methods of «simplification», i.e., deviations from the norms of substantive and procedural law, were actively used. Obviously, by the middle of 1938, the experiment of depriving non-judicial bodies of judicial functions was considered unsuccessful and the special collegiums were liquidated.

Selected victim protection measures in ordinary criminal proceedings

The victim becomes a participant in the criminal proceedings not because he or she has consciously made such a decision. It is almost always that the victim becomes a participant against their will, which is caused by a direct violation or threat to its legal interest by a criminal offence. This is reflected in the legal definition of the victim contained in Article 49 § 1 of the Criminal Procedure Code (hereinafter CPC) . Cezary Kulesza notes that this definition contains the following elements: subjective (natural or juridical person) and objective, relating to the legal interest infringed by the criminal offence to the extent defined by that provision, but also a provision of substantive criminal law (Kulesza, 1995, p. 17–18). The victim's participation in criminal proceedings makes the victim a participant in those proceedings, whether natural or juridical person, and that participation is limited to fulfilling the role assigned to them by the criminal procedural law (Tylman, 2003, p. 47). The legislature attributes three roles to the victim: in the pre-trial proceedings, the victim is a party (Article 299 § 1 CPC), in the judicial proceedings, the victim may be an auxiliary prosecutor (Article 53 CPC), incidental or subsidiary, and in the course of the entire criminal proceeding, also a testimonial evidence source (Article 177 § 1 CPC, Article 185a § 1 CPC, Article 185c CPC). The status of a party to pre-trial proceedings is acquired by operation of law and does not require the victim to take any action. The situation is different in judicial proceedings, where acquiring the status of auxiliary prosecutor requires a certain effort to by the victim, namely expressing the will to act in that capacity.

Legal analysis of different approaches to understanding the phenomenon of miscarriage of justice in administrative proceedings

The article is devoted to the study of various approaches to understanding the phenomenon of a miscarriage of justice in administrative proceedings. The author establishes that a miscarriage of justice in administrative proceedings can be referred to in several senses. Firstly, a miscarriage of justice in administrative proceedings can be understood in a narrow sense, depending on the aspect specifically chosen (epistemological, praxeological and teleological) or their combination. The epistemological aspect of understanding a miscarriage of justice in administrative proceedings relates to the processes of mental and cognitive activity of a judge. Within this aspect, a miscarriage of justice is considered as a result of a defect in the subject matter of a judge’s cognitive actions, which may be manifested in incorrect processing or interpretation of information. The praxeological aspect of understanding a miscarriage of justice in administrative proceedings focuses on the compliance of the judge’s actions with the requirements and procedural rules set forth in the law. In this context, a miscarriage of justice is manifested as an unlawful act (action or inaction) of a judge, which consists in the judge’s incorrect application of substantive law or violation of procedural law. The teleological aspect of understanding a miscarriage of justice relates to the purposes of administrative proceedings. Under this approach, a miscarriage of justice is defined as a result that does not meet the goals of administrative proceedings. The interconnection and interdependence of the epistemological, praxeological and teleological aspects forms a comprehensive understanding, a holistic perception of this phenomenon in administrative proceedings. This integration of different perspectives makes it possible to characterize a miscarriage of justice by providing a deep and multilevel understanding of its nature. In a broad sense, a miscarriage of justice in administrative proceedings can be understood as a judge’s procedural activity related to the misperception, analysis or reproduction of legal norms, which is reflected in the adoption of a court decision that is unable to achieve the purpose of administrative proceedings.

Неуказание сведений о судимости как основание для отказа в регистрации кандидата

The issue of criminal records in electoral law has long been one of the most discussed in society. However, it is important to remember that each case has its own characteristics and requires careful consideration. A pressing issue is the candidate’s obligation to indicate information about his criminal record in the application for consent to run. The article presents an analysis of judicial practice on refusal to register a candidate in case of non-compliance with the provisions of substantive law, which is enshrined in the current electoral legislation. The author comes to the conclusion that substantive law and the material legal relations regulated by it have a significant impact on the content of procedural law.

행정기본법과 행정절차법의 관계정립의 기본방향

The General Act on Public Administration, enacted in 2021, faces problems of overlap in terms of legislative intent and legislative content, and dispersion and inconsistency in terms of regulation in relation to the Administrative Procedure Act, enacted in 1996. This has been raised as a problem from the perspective of the legitimacy of the legislative system, and various measures have been proposed to solve this problem. Among these options, the dominant view is that the two Acts should be unified to create a general administrative code. However, the issue of unifying and harmonising the laws is not an easy task. First of all, when integrating the two laws, the question is whether they should be integrated around the Administrative Procedure Act or the General Act on Public Administration, or whether they should be reorganised into a unified code that can have the substance of a kind of administrative constitution. In addition, the integration of two laws with different jurisdictions will necessarily be preceded by legal consultations between the government agencies responsible for the two laws. Given the many challenges of integration, it is difficult to predict when the long-term goal of integration can be achieved. It is therefore necessary to consider measures to resolve the contradictions and inconveniences of the two laws even during the long journey of integration. Whether integrating the two laws in the long term or adjusting them in the short term, the common issues to be addressed are: (1) systematic legitimacy by eliminating contradictions, overlaps and scattered rules; (2) legal inconsistencies that scholars have identified as problems; (3) reconsidering whether to continue codifying matters that are better left to the development of precedents and theories, such as general principles of administrative law and constitutional principles; (4) reconsidering whether and to what extent government policies such as active administration should be stipulated in the General Law and, if so, how much weight should be given to them; (5) clarifying provisions that are difficult to stipulate in the General Administrative Law in relation to the legislative activities of the executive branch; and (6) prescribing new regulations that need to be supplemented and revised in individual laws. On the other hand, for the long-term task of integration, it will be necessary to (1) finalise the scope of the unified code and determine the identity and status of the unified code, (2) determine the competent departments accordingly, and (3) determine the name and content of the unified code. For the short-term parallel adjustment to solve public inconveniences before the long-term integration, it is necessary to (1) recognise that there is no normative hierarchy between the Administrative Procedure Act and the General Act on Public Administration in general, and to eliminate the most serious overlaps, dispersals and contradictions; and (2) not to be bound by the distinction that the Administrative Procedure Act is a procedural law and the General Act on Public Administration is a substantive law in a schematic sense. In essence, the General Act on Public Administration and the Administrative Procedure Act should eventually be integrated. I mention parallel co-ordination because integration is not expected to be easy at this stage, not because parallel co-ordination is a sustainable option in the long term. The most difficult issue for unification is which ministry will be responsible for legislating and enforcing the unified code. Once this issue is resolved, unified legislation is not a particularly difficult task. There is the position of the Ministry of Government Legislation, which has enacted the General Act on Public Administration, and the position of the Ministry of Interior and Security, which has enacted the Administrative Procedure Act.

Human infection with an infectious disease agent: analysis of constructive objective features of criminal offences

With a view to confirming the hypothesis that the ineffectiveness of criminal law provisions under Articles 130, 131, 133 of the Criminal Code of Ukraine is due to the shortcomings of their legislative design, the author analyses the definitions used by the legislator to determine the constructive objective features of criminal offences under Articles 130, 131, 133 of the Criminal Code of Ukraine. The author establishes that they are inconsistent with the terminology of healthcare regulations which should be used when qualifying encroachments on biological safety manifested in infection of a person (persons) with infectious disease agents. The article states that current legislation does not contain any lists of incurable and venereal diseases. On this basis, it is concluded that the qualification of the relevant criminal offences is not based on the provisions of legislation, but on the previous court practice, common sense of law enforcement officers and the level of their legal awareness. The view is supported that the indication of a virus as an instrument of criminal offences (Articles 130, 131 of the Criminal Code of Ukraine) significantly limits the criminalisation of encroachments on biological security in the form of spread of infectious diseases. Attention is drawn to the discrepancy between the constructions of the objective side of the corpus delicti of criminal offences under Articles 130 and 133 of the Criminal Code of Ukraine, which provide for an identical mechanism of causing harm to the victim. It is established that the absence of any references in the disposition of Article 133 of the Criminal Code of Ukraine to the means of infection (live pathogen) unjustifiably delays the moment of termination of this criminal offence until the victim develops clinical manifestations of the disease. Finally, the conclusion is made that the gradual widening of the gap between the substantive criminal law and medical law makes it increasingly difficult to qualify the infection of another person with dangerous infectious diseases and creates problems in delimiting related corpus delicti of criminal offences. The editorial wording of the unified basic elements of a criminal offence consisting in infecting a person with a pathogen which is dangerous to his/her life is proposed.

The Judicial System of the Russian Federation the Context of Modern Challenges

Introduction. The trends that are decisive for the current stage of development of the legal system of the Russian Federation (virtualization of legal interactions, blurring of signs of forms of law, the growth of the normative array, the increasing regulatory role of legal values and principles, dependence on active digitalization of both public administration and forms of interaction between the state and man) exacerbate its various problems, which affects the effectiveness, efficiency, accessibility of justice, openness of the judiciary. Theoretical Basis. Methods. The authors have considered the approaches to the identified problem that have been established and are developing in modern theoretical legal and public legal sciences, as well as the positions and opinions of the judicial community. To obtain a scientific result, dialectical method, general logical techniques, structural-functional research method were used. Results. The article critically analyzes the most striking challenges facing the judicial power of the Russian Federation – the correspondence of the structural elements of the status of judges to the nature of the digital society, the problems of judicial immunity, increasing the role of disciplinary responsibility, the rationale for expanding the institution of professional representation, problems of judicial practice. Discussion and Conclusion. Approaches to solving the problems of improving the legal status of judges (such as the immunity of magistrates, the specifics of using information and communication technologies and observing the boundaries of what is permissible in social networks) are proposed. The conclusion is reasoned that it is inappropriate to consolidate judicial practice at the legislative level as a form of law, since the current legal regulation allows the highest judicial authorities to interpret on a wide range of issues related to the application of substantive and procedural law, and, if necessary, use the right of legislative initiative to amend the current legislation.

The role of legal constructions in the enforcement of substantive and procedural law

In the modern legal system, legal structures play an important role in ensuring effective enforcement of both substantive and procedural law. That is why the author has selected an appropriate source (scientific and normative) base, and has formed the goal and objectives that fully reveal the subject matter of the study. The author emphasizes that substantive law regulates basic social relations by establishing the rights and obligations of subjects, while procedural law provides mechanisms for their actual implementation and protection. Legal constructions are a legal instrument which allows to organize legal provisions, ensuring their clarity, universality and unambiguous implementation. In addition, the author examines the internal construction of a legal provision and a legal prescription, and the correlation of these legal phenomena. The author emphasizes such an important characteristic of the legal construction of a legal provision as a genetic link, which is used to further form legal institutions, sub-branches and branches of substantive and procedural law. The article focuses on the analysis of the role of legal constructions of substantive and procedural rules of law in the process of law enforcement. The author separately considers the issues of their creation, application and impact on the efficiency of legal regulation. The author examines the interaction of substantive and procedural law through the prism of legal constructions of legal norms, which allows identifying key aspects of their systemic effect in the legal system. The work contains examples from the current legislation, in particular, the Civil, Civil Procedure Codes of Ukraine and other legal acts. The author examines the case law which demonstrates the practical value of the issue raised and the need for proper construction of legal provisions at the stage of law-making, which results in their further implementation. The author characterizes the impact of legal constructions on legal practice and their role in ensuring legal stability and predictability. Based on the study, the relevant conclusions were formed.

Historical outline of the development of the principle of good faith in civil procedure in Germany and France

The article analyzes the concept of good faith on the example of its development in civil proceedings in Germany and France. The author traces the relationship between the good faith of Roman civil procedure and the good faith of continental European countries, which was developed through the reception of Roman law. he author examines a number of sources of the so-called barbarian law in the context of good faith and its negative manifestation - bad faith in procedural communication and counteraction thereto. The author defines good faith as a condition for proper procedural behavior in the sources of law of the Holy Roman Empire of the Germanic nation and traces the history of the term Treu und Glauben. The author examines the concepts of correlation between the Roman term bona fides and the German term Treu und Glauben, which has become a general principle of various branches of law, including civil procedure law. The author examines the presence of the good faith principle in the modern German Code of Civil Procedure. The author also analyzes the concept of the formation of the principle of good faith in civil proceedings in France, for which purpose the medieval rules of customary law contained in such legal sources as the Coutumes Beauvais are studied. Special attention is paid to an important source of French procedural law of modern times - the Ordinance of Louis XIV of 1667 (Louis Code), which was the basis for the Civil Procedure Code of Napoleon of 1806 and whose provisions contained measures to counteract the abuse of procedural rights, and in some cases the term good faith as a measure of exemplary procedural communication. The author also reviews the provisions of the current French Code of Civil Procedure, which entered into force on January 1, 1976, where the principle of good faith is applied both as a counteraction to unfair procedural behavior and as a standard of procedural behavior which provides for the proper performance of duties and exercise of rights. The author determines that the principle of good faith is primarily found in substantive law, both in Germany and France, from where it is integrated into procedural law.

Derecho Penal Sustantivo y Adjetivo en México: control social para la prevención y represión de conductas delictivas

This study aimed to analyze the persistent human rights violations within the Mexican criminal justice system, despite the reforms implemented. The main objective was to examine the role of formal social control in crime prevention and repression, as well as to evaluate the effectiveness of substantive and procedural criminal law in protecting fundamental rights. To conduct this research, an review of specialized literature and reports from international and national organizations was carried out. The results reveal that, despite normative advances, practices such as torture, arbitrary detention, and inhumane prison conditions persist. These violations are exacerbated by the lack of judicial independence, corruption, and impunity. The analysis of substantive and procedural criminal law showed that, while there are advances in legislation, problems such as the imprecision of some criminal offenses, the workload of system operators, and the lack of resources persist. In conclusion, the Mexican criminal justice system faces significant challenges in protecting human rights. A comprehensive reform is required that addresses the structural causes of violations, strengthens judicial independence, professionalizes police forces, and guarantees access to justice. Furthermore, it is essential to promote a culture of legality and respect for human rights.

Criminalisation theory as a theory of pro tanto criminal proscription

ABSTRACT Criminalisation theorists who try to explain when substantive criminal law may appropriately be deployed to shrink the scope of our presumptive initial liberty, often take their project as requiring them to identify the sorts of conduct for which may the state criminally convict. I argue that this is a mistake. While such theories of ‘convictability’ have their place, they do not completely explain the use of substantive criminal law to limit our presumptive initial liberty. Convictions ensue only after pleas of justification and excuse fail, but the substantive criminal law coercively limits liberty well before conviction, when it creates a pro tanto criminal proscription. Even those who can escape conviction by pleading a justificatory or excusatory defence were, in fact, subject to authoritative criminal law guidance proscribing (or sometimes, requiring) specified conduct. Although that guidance is sometimes trumped by the additional guidance contained in defences, it is not null and void, and it continues to have a liberty-limiting effect. In other words, substantive criminal law already shrinks our initial liberty by pro tanto criminally proscribing some conduct. Therefore, I argue that we also need a theory of criminalisation that addresses the appropriate domain of pro tanto criminal proscriptions.

Steering the Atoms for Peace and Development: Legal Aspects of the Board of Governors of the International Atomic Energy Agency

International Atomic Energy Agency (IAEA) is the leading international organization in the field of nuclear energy and nuclear non-proliferation. This paper examines the most important policy body of the Agency, the Board of Governors (BoG). The legal foundation of the BoG will be discussed in light of its constitutional documents, most notably the Statute of the IAEA and the Rules of Procedure of the BoG. The research question will be approached from the theoretical angle of functionalism. The paper suggests that in fact, the practical role of the BoG is even more important than could be concluded on the basis of the legal documents whence the powers of the BoG derive. Over the years, the normative framework of the IAEA has enabled the BoG to adapt to rapidly changing decision-making environments and political situations. Furthermore, this has made it possible for the BoG to contribute in a relatively effective manner to the development of substantive international nuclear policy and law.

Legal Cooperation and Conflict Resolution Mechanism in Guangdong-Hong Kong-Macao Greater Bay Area

The Guangdong-Hong Kong-Macao Greater Bay Area (GBA) is an important strategic region for China's economic development. The coordination and integration of its legal system plays a key role in realizing the economic, social and cultural integration in the region. However, as Hong Kong, Macao and Guangdong belong to different legal systems and social systems respectively, the differences between the legal systems lead to frequent conflicts of laws and hinder the coordinated development in the region. Based on the constitutional and legal foundations, historical and cultural backgrounds of Guangdong, Hong Kong and Macao, as well as the practical experience of Guangdong, this paper analyzes in detail the main challenges facing the current legal collaboration and conflict resolution mechanism in the GBA. These challenges are mainly reflected in the imperfect legislative design, the inadequacy of legal protection, and the unclear legal remedies. Through in-depth discussion of these issues, this paper proposes specific ways to establish a legislative coordination mechanism, formulate a unified substantive law, develop diversified relief channels, and ensure the equal application of law by residents of the three places, with a view to optimizing the legal cooperation and conflict resolution mechanism of the GBA, so as to provide a solid legal guarantee for regional stability and prosperity. The research in this paper not only provides a new perspective for understanding the complexity of legal integration in the GBA, but also puts forward feasible suggestions for deepening regional legal cooperation in the future.

Vulnerable to Inadequate Representation?

Abstract Collective redress mechanisms pose manifold challenges for the individualistic two-party paradigm of civil procedure. The EU Representative Actions Directive – transposed into German law with the Consumer Rights Enforcement Act (Verbraucherrechtedurchsetzungsgesetz – VDuG) – is built on a representative mechanism: Qualified entities (ie mostly consumer organisations) may bring actions on behalf of consumers for injunctive or redress measures against traders infringing consumer protection law. An often-neglected facet of collective redress is the vulnerability of absent plaintiffs, if collective judgments bind absent plaintiffs regardless of the adequacy of their representation. Consumers relying on their representatives could lose their actually well-founded claims as a result of inadequate representation by the representative consumer organisation and its attorneys. This article considers post-judgment safeguards against inadequate representation: As a procedural remedy, so-called collateral attacks would allow consumers to negate the binding effect of the collective judgment in cases of inadequate representation. Complementarily, the analysis turns to remedies in substantive law and considers the viability of liability actions against the representative consumer organisation or its attorneys.

Climate Change Mitigation through Civil Procedure? Justiciability in Two Nordic Climate Cases

Abstract Although the phenomenon of climate change litigation has flourished in certain European countries, it has so far been limited in the Nordic countries. A reason might be that the Nordic countries do not have a strong tradition of judicial review or rights-based litigation. The role of the courts was long considered to be less about controlling that the legislature lived up to constitutional and international obligations, than ensuring the realisation in practice of the substantive law, by resolving concrete disputes. Through the analysis of issues of justiciability in one Norwegian and one Swedish climate case, this article discusses the role of the judiciary in climate cases. It is argued that the cases illustrate a tension between on the one hand the right to access to a court and judicial review, and on the other, a more limited and traditional understanding of the role of the court, which focuses on the resolution of concrete disputes. At the same time, the cases are considered to indicate that climate change litigation can bring about change in the judicial interpretation of procedural law.