Dissertations / Theses on the topic 'Civil law'

Dissertação (mestrado) - Universidade Federal de Santa Catarina, Centro de Ciências Jurídicas, Programa de Pós-Graduação em Direito, Florianópolis, 2017.
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Esta dissertação objetiva compreender as condições socioeconômicas em que se dão e as implicações das transformações do direito brasileiro no que se refere à adoção de procedimentos comuns à tradição estrangeira da common law. Disso, se obteve que, em um cenário econômico neoliberal de direito flexível, a análise do discurso politizador e moralizante do judiciário coloca à luz uma série de problemas decorrentes de um novo paradigma interpretativo do Direito. Se para o positivismo jurídico a norma é o limite, para o neoconstitucionalismo o limite está no senso moral do julgador. Nesse estado de crescente indeterminação, adotam-se no Brasil instrumentos estrangeiros como os ?precedentes?; além disso, instituições internacionais como o Banco Mundial lançam diretrizes por meio de relatórios como o Doing Business que indicam que, em termos de eficiência, o sistema de common law é superior ao de civil law. Isso, claro, ao mesmo tempo em que vigora, em países como os Estados Unidos, uma teoria herdeira do Realismo Jurídico, a Law and Economics, que defende a união entre direito e economia em um nível nunca visto antes. A liberdade interpretativa permitida por esse conjunto de fatores rompe a ideia da necessidade de um direito rígido, o que será analisado, em termos de implicações, em seu contexto socioeconômico, qual seja o do neoliberalismo.

Abstract : This dissertation aims to understand the socioeconomic conditions in which occur and the implications of the transformations of Brazilian law regarding the adoption of procedures common to the foreign common law tradition. From this, it was obtained that in a neoliberal economic scenario of flexible law, the analysis of the politicizing and moralizing discourse of the judiciary brings to light a series of problems arising from a new interpretative paradigm of Law. If, for legal positivism, the norm is the limit, for neoconstitutionalism the limit lies in the moral sense of the judge. In this state of growing indeterminacy, foreign instruments are adopted in Brazil as the "precedents"; in addition, international institutions such as the World Bank have issued guidelines through reports such as Doing Business which indicate that the common law system is superior to civil law in terms of efficiency. This, of course, at the same time that, in countries such as the United States, an inheritance theory of Legal Realism, Law and Economics, is defending the union between law and economy on a level never seen before. The interpretive freedom allowed by this set of factors breaks the idea of the need for a rigid Law, which will be analyzed, in terms of implications, in its socioeconomic context, namely neoliberalism.

Civil Law is the kind of figure that everybody knows about, but only a few understand. It is considered a basic legal institution, key tounderstand  the historical development of Law. However, discordant voices question the usefulness of Civil Law in front of the challenges from the contemporary world.In this paper, written twenty years ago, the author introduces in a clear way the criticism towards Civil Law, as well as the threat of disappearance that hanged above it, and proposes solutions for Civil Law to transform and adapt it to changes, in order to avoid extinction.
El Derecho Civil es una figura que todos conocen, pero pocos comprenden. Es considerada una institución jurídica básica, clave para entender el desarrollo histórico del Derecho. Sin embargo, voces discordantes cuestionan la utilidad del Derecho Civil ante los desafíos delmundo contemporáneo.En el presente artículo, que fue escrito hace ya veinte años, el autor presenta de manera clara las críticas que se hacían al Derecho Civil, así como la amenaza de desaparición que pendía sobre él, y propone soluciones para que el mismo se transforme y logre adaptarse a los cambios, evitando su extinción.

This thesis examines common-law and civil-law jurisdictions in order to find differences between them. These differences are then being qualified as either relevant or irrelevant for the categorisation of individual jurisdictions. This reflects the argument that only features occurring in only one of the legal families can be relevant when categorising jurisdictions. Only such features can be, from the author’s point of view, specific and typical for their legal family and inherent features of them.The first thing to be considered under this premise is the respective sources of law (Chapter 1). These are in civil-law jurisdictions traditionally statutes and in commonlaw jurisdictions predominantly courts’ decisions. There are, of course, statutes also in common-law jurisdictions and previous courts’ decisions play an important role also in civil-law systems. The differences are not inherent. Furthermore, there are fundamental legal concepts, that is important concepts underlying the respective rules. These concepts may explain differences between the rules. The examination of sources of law, altogether, does not reveal any distinguishing factors.Chapters 2–5 discuss the issue of attitudes of common-law and civil-law judges to statutory interpretation. Chapter 2 examines the respective methods of statutory interpretation. This does not reveal any differences as to common-law and civil-law judges’ attitudes; for instance, greater adherence of common-law judges to the literal meaning of rules arguably does not exist. As shown in Chapter 3, this is true also in the area of Criminal Law under the special safeguards this subject provides. Chapter 4 asserts terminology causes differences between the systems; this is true even in case of identical terminology which is sometimes being interpreted in a diametrically different way. Moreover, differences can also be compensated for elsewhere in the legal system. Altogether, Chapter 4 does not reveal any inherent differences between the systems. As Chapter 5 shows, there is an ongoing process of convergence between common-law and civil-law systems, which means the categorisation into legal families becomes even less plausible.Chapter 6 shows that the categorisation into legal families is not only incorrect but also highly misleading and that there are numerous scholarly statements relying incorrectly on the family concept. The proposition (Chapter 7) is that it may nevertheless be feasible to structure comparative-law texts according to the wellknown legal families, as these show a common historical background. However, for conducting research into particular foreign legal rules (micro-comparative research), the family concept becomes a misleading starting-point. Insofar the concept should be abandoned or, at least, used only together with an appropriate warning.

The growing recognition of obligation of Good Faith in contract law has only increased the debate surrounding this concept and its ramification on contract. The uneasiness about Good Faith should be attributed to the fact that Good Faith is an open norm or vague standard, which in practice means judicial law making. Furthermore, Good Faith suggests the teleological method of interpretation of contract and legislation in determining the rights and the duties of the parties to a contract. This, it is argued, would contradict the importance of certainty, private autonomy and commercial stability. The thesis presents the development and functions of Good Faith, in different jurisdiction, civil and common. It elaborates the arguments and counterarguments in the Good Faith debate from the context of major civil law and common law features. This will be mainly illustrated by maritime law related contracts. Finally, Good Faith in a possible uniform transnational maritime law will be discussed.

Neural interface devices are artificial devices that are controlled by the human mind. Neural interface systems encompass sophisticated technology that enables integration of machine with the human brain and body. The complexity of the brain and neural system is so great that full understanding of how these work is still being discovered through neuroscientific research. Interfacing with the human brain and neural system is far from perfect so the ways in which they work and the limitations of neural interface devices must be recognised when a dispute comes before a court of law. The research hypothesis tested in this thesis is that when a person who has a neural interface device is involved in circumstances where harm to another person or another person's property occurs, the Australian law will require re evaluation and adaptation to resolve subsequent civil action. Complexity will arise because of the existence of the neural interface device and what might be regarded as a merging of mind and machine. This will make it difficult to determine factual causation and as a result, the law will need to adapt to these circumstances. Thomas Kuhn's concept of revolutionary science, involving paradigm shift, is applied to determine this hypothesis. While doctrinal methodology is applied in the analysis of the law, policy considerations that will impact on the judicial decision making and legislative action are also discussed. Delphi Method research has been undertaken to obtain the insight of legal experts regarding the legal issues that will arise in the context of civil disputes and how the current law will address these issues. The information upon which the participants in the Delphi Method research based their responses purposely excluded malfunction of the neural interface device as the law will have most difficulty determining liability when the device does not malfunction. In the analysis of the legal issues, scenarios have been introduced to better assess the application of the law and identify the difficulties that will require re-evaluation and adaptation of the law. While the facts that arise in disputes differ, identification of the difficulties the current law will have in resolving a dispute presented in this thesis will provide insight for future civil proceedings where the person with a neural interface device is involved. Throughout this thesis, the person with the neural interface device is regarded as a defendant in a civil proceeding. The issues involving neural interface devices are multifactorial, so while neuroscientist and engineers develop neural interface devices, lawyers, academics and politicians must consider the ethical, legal and social frameworks within which innovation can exist and thrive. This thesis concludes with recommendations, based on the legal issues identified and analysed, to assist the judiciary, the legislature and the legal profession with this new area of technological advancement. The challenges that the melding of mind and machine through neural interface present at law are analysed throughout this thesis. This thesis seeks to provide a substantial contribution to the legal literature that is both innovative and pioneering. This new, developing field of inquiry provides the opportunity for ground breaking advances in legal analysis of the existing legal frameworks that, in particular circumstances, will require re-evaluation and adaptation.

There seems to be wide acceptance of the idea that divergencies between legal systems give rise to disadvantages. These divergencies are, and have always been, regarded as inconveniences to overcome, particularily between the Civil and Common Law traditions, which present quite diverging points of view in the way the Law is thought. Today, one criterion of evaluating any harmonization of international legal norms is the extent to which the effort enhances certainty, a quality much appreciated in the field of international commercial contracts.
In fact, today, there is a detectable effort on the international level to harmonize the laws, especially in relevance to international contracts, in order to provide a better environment for world trade.
When we decided to go through this subject, we had in mind the importance of understanding this harmonization tendency on the international sphere. That may be the reason why we have tried, in this thesis, to expose the harmonization process adopted by some recent conventions. Our purpose was to prove that, even though differences and disparities may exist, as long as there is a uniform tendency toward social and cultural uniformity, one might predict that these divergencies would eventually even out. We see in this tendency an indication of the convergence of the Common and Civil Law toward the same destination: make this world a better place.

La ricerca utilizza la prospettiva di un ordinamento di common law per contribuire allo studio della definizione del rapporto di lavoro e in particolare del rapporto di lavoro subordinato. Il presente studio, così tributario di una ottica comparata, indaga il fenomeno della subordinazione attraverso una preliminare scomposizione delle sue tre dimensioni costitutive: quella della concettualizzazione giuridica, quella degli effetti giuridici (intesi sinteticamente come tutele) e quella fattuale che richiama gli elementi socio-economici fondanti la condizione della dipendenza considerata ontologicamente e praticamente. In termini espositivi si rileva come l’intento di definire la subordinazione si sposi con la necessità di discernere, ulteriormente, sotto il profilo temporale, tenendo separata quindi la definizione ex ante (o qualificazione propriamente detta) dalla definizione ex post. Lo studio arriva a rilevare il ruolo del diritto casistico quale non solo fondante, ma anche fisiologico e ineludibile per la corretta definizione della condizione del lavoratore subordinato; esso trova, nell’indagine della case law anglosassone in materia di interpretazione del rapporto, suggerimenti che possono costituire elementi di critica all’impianto categorico tipico del sistema italiano-continentale. Conclude con il rinvenire nella tecnica delle presunzioni legali assolute uno strumento di qualificazione efficace quanto delicato, poiché direttamente collegato al supporto di inderogabilità di cui sono fornite le tutele per il lavoro subordinato. Richiama le forme di consulenza preventiva alla stregua di percorsi efficaci verso una maggiore stabilizzazione delle aspettative. Suggerisce, infine, in una prospettiva di definizione della subordinazione ex post, il criterio ermeneutico della interpretazione orientata alla ratio della specifica tutela che sia oggetto di disputa e/o di accertamento, quale strumento di indirizzo del potere giurisprudenziale da parte del legislatore.
The research is moved from the observation of outdated legal systems facing with an increasing complexity as governing the evolution of labour markets; an instance for reform is called both in common law and civil law countries. The common law perspective is used to highlight the essential role of case law as far as classification and qualification of any subordinated relationship is concerned. The analysis stress the point over the need to decompose the meaning of subordinated work: subordination is a legal concept, it is a matter of fact, it is a legal effect implying rights and duties. Also stressed within the process to define a subordinated relation of employment is a temporal dimension, since any a-priori definition is involving a different approach if compared with any ex post definition. Some conclusions are finally put forward.

During the Civil War, twenty northern states changed their laws to permit absent soldiers to vote. Before enactment of these statutes, state laws had tethered balloting to the voter's community and required in-person participation by voters. Under the new laws, eligible voters – as long as they were soldiers – could cast ballots in distant military encampments, far from their neighbors and community leaders. This dissertation examines the legal conflicts that arose from this phenomenon and the political causes underlying it. Legally, the laws represented an abrupt change, contrary to earlier scholarship viewing them as culminating a gradual process of relaxing residency rules in the antebellum period. In fact, the laws left intact all prewar suffrage qualifications, including residency requirements. Their radicalism lay not in changing rules about who could vote, but in departing from the prewar legal blueprint of what elections were and how voters participated in them. The changes were constitutionally problematic, generating court challenges in some states and constitutional amendments in others. Ohio's experience offers a case study demonstrating the radicalism of the legal change and the constitutional tension it created. In political history, prior scholarship has largely overlooked the role the issue of soldier voting played in competition for civilian votes. The politics of 1863-1864 drew soldiers into partisan messaging, since servicemen spoke with authority on the themes the parties used to attack their opponents: the candidates' military incompetence, Lincoln's neglect of the troops, and McClellan's cowardice and disloyalty. Soldiers participated politically not only as voters, but also as spokesmen for these messages to civilian voters. In this setting, the soldier-voting issue became a battleground in partisan efforts to show kinship with soldiers. The issue's potency became evident nationally after the 1863 Pennsylvania gubernatorial race, presaging the 1864 presidential contest. The Republican incumbent ran as "the soldiers' friend" and attacked his Democratic rival as the enemy of soldiers for opposing that state's soldier-voting law. The issue was decisive in securing civilian votes for the victorious Republican. That experience launched a nationwide push by Republicans to enact soldier-voting laws in time for the 1864 elections.

En el presente artículo el autor da a conocer de forma magnífica su perspectiva sobre la naturaleza del precedente vinculante en la tradición jurídica del Civil Law. Para ello realiza un profundo análisis histórico y teórico sobre el nacimiento del precedente vinculante como institución procesal. Siendo el Common Law la cuna del precedente vinculante en su forma originaria, el autor lo coteja con nuestro sistema jurídico haciendo uso del Derecho Comparado. Asimismo enfatiza su crítica sobre los puntos controvertidos, diferenciando al precedente vinculante de los distintos fenómenos procesales que se encuentran en los variados ordenamientos jurídicos. This article provides an excellent description of Taruffo’s perspective on the nature of binding precedent in the juridical tradition of Civil Law. Taruffo provides a detailed historical and theoretical analysis of the roots of the binding precedent as a procedural institution. Since Common Law is the source of the binding precedent in its original form, the author compares it to our juridical system using Comparative Law methodology. At the same time, the author presents a critique of controversial issues, differentiating binding precedent in different procedural phenomenon that can be found in various legal systems.

O direito intertemporal é um dos ramos mais complexos da ciência jurídica. Não bastasse a amplitude do tema e sua ligação com todos os ramos da ciência jurídica, as soluções apresentadas pela doutrina para seus problemas são bastante variadas e partem de enfoques bem diferenciados na observação dos seus fenômenos. A despeito de ser uma matéria extremamente importante, porque vinculada com o progresso da ciência jurídica e com a evolução do ordenamento mediante a alteração das leis, ela não recebeu a atenção adequada da doutrina processual, o que reflete na absoluta ausência de parâmetros seguros para o direito intertemporal processual. Este estudo é uma tentativa de sistematização desse ramo do direito. Para alcançar os objetivos propostos partiu-se da análise das principais doutrinas do direito intertemporal, com atenção especial às de GABBA e ROUBIER por serem elas as que exercem maior influência no nosso sistema. A preocupação principal nesse momento foi a de fixar conceitos que são imprescindíveis para uma boa compreensão do modo como o direito intertemporal é tratado em nosso ordenamento. Posteriormente foi estudado o sistema de direito intertemporal brasileiro, numa análise global, sem uma preocupação especial, ainda, com o direito processual. A abordagem partiu de uma evolução histórica do tratamento da disciplina e culminou com o esboço do modo como nosso sistema confere proteção aos direitos adquiridos e às situações jurídicas consolidadas contra alterações legislativas. Fixadas essas idéias, passou-se à análise do direito processual civil intertemporal. Em um primeiro momento foram demonstrados os motivos que justificam uma abordagem da disciplina a partir de um enfoque eminentemente processual, para, posteriormente, traçar um resumo da forma como essa disciplina é tratada pela legislação, doutrina e jurisprudência. Dessa análise ressaltaram as principais lacunas da disciplina, que são: a ausência de delimitação dos direitos processuais adquiridos; a falta de sistematização da disciplina dos poderes do juiz em matéria de direito intertemporal e a inexistência de parâmetros seguros para identificação das situações jurídicas processuais. Identificadas essas lacunas, foram desenvolvidos esforços para que este estudo fornecesse subsídios para preenchê-las. Para tanto, foram estudados isoladamente cada um desses temas e, dentro das limitações do trabalho, buscou-se enfocá-los de maneira diferenciada e mais aproximada, a fim de alcançar os objetivos propostos. No tópico final foram esclarecidas as principais conclusões obtidas durante o estudo com o desenho do modo como, a partir delas, entendeu se possível sistematizar o direito processual civil intertemporal brasileiro.
Intertemporal Law is one of the most intricate branches in the field of legal theory. Adding to its width and to its connection with all juridical fields, the solutions presented by this doctrine are quite ample and stem from diverse focuses when observing its phenomena. Notwithstanding being an extremely important subject, for it binds upon the progress of the legal science and upon the evolution of Law amendment ordinance, it has not been closely observed by the procedural doctrine, what explains the lack of safe parameters for the procedural intertemporal Law. This paper seeks to systemize this branch of Law. To attain the objectives herein, analysis of the main doctrines of intertemporal law were carried out, and special attention was placed on those of GABBA and ROUBIER for they are the ones that mostly influence our system. The initial worry was to fix concepts which are imperative for understanding how intertemporal law is dealt with in our system. Afterwards, the intertemporal Brazilian system was examined, on its whole, still not aiming at its procedural aspects. Its address arouse from a historical approach of this discipline and ended up with a draft of how our system confers protection to acquired rights and to consolidated legal cases against legislative alterations. Thereafter, analysis of intertemporal civil procedure took place. Prima facie, motives which justify its eminent procedural approach was demonstrated and, then, a summary of how it is treated by our legislation, doctrine and jurisprudence. From this analysis its main gaps came to surface, namely: absence of acquired procedural rights delimitation; absence of systematization of judges authorities inherent in intertemporal law and absence of safe parameters for identification of procedural situations. These gaps identified, efforts were endeavored towards this study with a view to providing solutions to them. So, each one was separately studied and, within the scope of this paper, differentiated and closer focuses were sought, aiming at complying with the proposed objectives. Last, this studys main conclusions are made clearer, with a framework, as of these conclusions, of how it was possible to systemize the Brazilian intertemporal civil law.

The mutual recognition and acceptance of canon law and civil law have generated interesting debates through the centuries. This is particularly true since the Second Vatican Council called for a new way of thinking on matters pertaining to our religious way of life and on our relationship with other peoples and nations. As a result many pastorally important issues have surfaced. One of these is the possibility for the Church of recognizing and accepting a legitimate decision of the nullity of a marriage by a civil court. India, a secular country by constitution, accommodates many religions. The State recognizes the laws of all religious groups and acknowledges them as Personal Civil Laws, such as Indian Christian Marriage Act of 1872 and the Indian Divorce Act of 1869, governing matters such as marriage, succession, and divorce. Therefore, when carrying out any action which has consequences in civil law, every person is expected to observe his/her applicable personal civil law. According to the Church's teaching, marriage is indissoluble. However, the Church provides for a declaration of invalidity under strict conditions. A close examination of the ecclesial and civil laws indicates that, in order to protect the sacredness of this institution and to prevent invalid marriages, both systems have established a number of impediments and defects of consent which invalidate marriage ab initio. While Indian civil courts do not recognize the declarations of nullity granted by an ecclesiastical court, the Church does not accept a civil decree of nullity or of divorce. This particular confrontation between the two systems of laws naturally results in undue pain, tension and financial burdens for the persons involved. Therefore, we ask the question: Is it possible for the Church formally to accept a legitimately issued civil decree of nullity and allow the parties to marry in accordance with the norms of canon law without submitting them to a fresh new canonical trial? This question defines the hypothesis of our dissertation. Our study has demonstrated that there is substantial agreement between canon law and Indian civil law on several substantive aspects of marriage. For example, both hold that the right to marriage is a natural right of every human being. Both have established impediments in order to protect the social institution of marriage from being contracted invalidly. Both systems also recognize the invalidating effect of deceit. Once it is proven with moral certainty, or beyond reasonable doubt, that one party was deceitful in obtaining the consent of the other, both systems of law consider the marriage null and void. Therefore, at least in the case scenario discussed in our study, the Church can formally recognize and accept a civil declaration of invalidity of a marriage and declare the parties involved free to enter upon a new canonical marriage according to the norms of canon law. We maintain that this conclusion, mutatis mutandis, can be applied also to other similar hypotheses.

Marine biodiversity is of significance to the existence of humankind but has been experiencing globally continuous deterioration due to anthropogenic activities in the past decades. It has been generally accepted that damage to marine biodiversity is mainly caused by marine pollution, alien invasive species, unsustainable use and overexploitation of resources such as overfishing, destructive fishing operation and illegal, unreported and unregulated fishing, habitat loss, and climate change. Due to its importance, marine biodiversity must be protected and when damaged there should be liability imposed on the polluter. This thesis assesses the extent to which existing international law covers damage to marine biodiversity, permits actions and ensures recovery. To answer these questions, this thesis comprehensively examines the relevant international legal instruments on prevention and protection of marine biodiversity. It finds that protection of marine biodiversity under the current regulatory framework is piecemeal and no comprehensive liability regime exists. The factors hindering the development of an international liability regime for such damage include conceptual problems of the concept of marine biodiversity and the definition of damage to marine biodiversity, and the lack of baseline conditions as reference for the damage. Because of the gaps and inadequacy of the existing regimes which concern liability for damage to marine biodiversity, the thesis advocates that a liability regime for such damage shall be established and several important elements of such a regime are analysed. For this regime, the thesis discusses the theoretical basis first and then suggests a structure that will include relevant national legislation to be developed or refined, changes of the current multilateral liability regimes, and the creation of a new international legal instrument comprehensively addressing liability for damage to marine biodiversity within and beyond the areas of national jurisdiction. Significant obstacles in developing such a regime are identified and discussed.

In this three-article dissertation, I explore access to civil justice issues from several dimensions. Existing data tells us that poor households are significantly less likely than moderate- and high-income households to attempt to resolve civil justice problems, and that black households are significantly less likely than white households to attempt to resolve civil justice problems through formal means. However, we do not know why. The first article finds that among poor respondents, past experiences with public institutions, both legal and non-legal, contributed to a personal narrative about, and strong desire for, self-sufficiency. This narrative made respondents hesitant to seek help for civil justice matters, even if seeking help appeared to be the financially rational behavior. The second article argues that though there are many similarities between how poor blacks and poor whites interact with the legal system, blacks are much more likely to distrust legal institutions. This distrust leads them to avoid seeking out legal assistance, even in the most dire of circumstances. In the third article, I examine a different access to justice issue. I consider the changes Congress made in 2005 to try to limit access to one of bankruptcy's main protections, the automatic stay, for people who file for bankruptcy more than once in a 365-day period. I find that judges have mostly ignored this law, and that it has made little difference in access to bankruptcy for repeat filer debtors. I explore the roots of the judges' behavior and suggest potential legal reforms.

The scope of this thesis is to offer solutions to some of the translation and interpreting issues arising in the legal field. In particular, the focus of the analysis will be the differences between a common law country, England, and a civil law country, Italy. Through some excerpts taken both by an Italian movie and a UK TV series, the issues are analysed and in the end, two glossaries(Italian-English and English-Italian) built on this analysis are offered.

Cette thèse expose le droit contemporain des sûretés à Maurice en soulignant l’influence respective de la Civil Law et de la Common Law et l'impact de ce droit mixte sur les litigants. Le droit mauricien des sûretés est un système juridique hybride, marqué à la fois par la Civil law et la Common law. Ce caractère mixte est justifié par des raisons historiques et pratiques. La République de Maurice était jadis une colonie française, appelée Ile de France, avant d'être colonisée par les anglais. L'acte de Capitulation reflète la volonté du peuple mauricien de conserver le Code Napoléon aussi connu comme le Code Civil Mauricien. Les cautionnements, les nantissements, les hypothèques et les privilèges sont essentiellement inspirés du droit français. A cette liste, s'ajoutent le« bond », la« comfort letter », la «fixed charge» et la «floating charge» d'inspiration anglaise. Des amendements ont dû être apportés pour adapter ces législations aux particularités insulaires. Et évidemment, certaines lois, devenues obsolètes, ont été abrogées, et des nouvelles lois ont été adoptées, d'origine mauricienne ou étrangère, parce qu'au fil des années les fléaux et les besoins sociaux ne sont plus les mêmes. La loi, au service de la société, doit être conforme à la réalité actuelle afin de mieux répondre à ses attentes. En outre, des normes internationales issues des Conventions viennent alimenter ce corpus législatif. A savoir que, Maurice est un Etat du "Commonwealth" et les "Law Lords" du "Judicial Committee of the Privy Council" viennent siéger à Maurice pour entendre les appels formés contre les décisions de la Cour Suprême et leurs décisions s'imposent aux instances judiciaires inférieures en vertu du "stare decisis". Désormais, le Code abrite à la fois des sûretés d'origine française et d'origine britannique. Il offre un système hybride afin de répondre aux besoins des particuliers et des professionnels tout en offrant une garantie adéquate aux établissements de crédit. Chaque sûreté comporte des avantages et des inconvénients pour le débiteur ou le créancier. Il est difficile, même dans un système hybride à la fois influencé par la Common Law et la Civil Law, de trouver une sûreté à la fois équitable pour les deux parties.

Partecipazioni societarie e clausole di garanzia. La "due diligence" e le espresse garanzie patrimoniali. Le garanzie legali ("legal warranties"). Le garanzie patrimoniali ("business warrenties"). Limitazioni alle garanzie e indennizzi. Profili di diritto comparato.

La tesi ha ad oggetto l’istituto del risarcimento punitivo, del quale indaga natura, presupposti applicativi e profili funzionali nell’ambito degli ordinamenti di common law, con particolare riferimento all’ordinamento inglese e a quello statunitense. La parte finale del lavoro si occupa di individuare, in chiave comparatistica, punti di collegamento con le esperienze dei sistemi di responsabilità civile continentali, tentando di avviare una rilettura degli stessi in chiave polifunzionale ed assumendo, a tal fine, come banco di prova il risarcimento del danno non patrimoniale.
The thesis deals with punitive damages, investigating their nature, applicative requirements and functions, among common law jurisdictions, with particular reference to England and U.S. law. The final part of the work aims at identifying, in a comparative light, connection points with the law of torts of the European jurisdictions, proposing a multi-functional framework and using, for this purpose, damages for non-pecuniary losses as a test case.

博士
國立臺灣大學
法律學研究所
95
The topic of acceptance and adjustment of private laws by tax laws shall be deemed as norm conflict between tax laws and private laws, and it should be resovled under the harmonization of constitution. The method that constitution harmonizes the aforesaid norms conflict is to weigh the goals of tax laws against the fundamental right and order that private laws protect. During the weighing, the methodology of "Systemgerichtigkeit" can be adopted.

碩士
南台科技大學
財經法律研究所
100
In addition to physical and mental health in addition, everyone wants to own a beautiful. With the improved standard of medical knowledge, medical practice is no longer just treating disease, but to use medical technology to achieve the aesthetic results. For the general impression of the past remain in the plastic repair disability repair or burns, but with beauty trends and medical equipment and technology, will slowly push the human aesthetic plastic surgery for the subject. In this paper, is the latest medical beauty, for example, to cut the angle of medical cosmetic medical practices, attempts to distinguish between non-therapeutic medical cosmetic and general health behavior differences. In this paper, cosmetic medicine as a starting point, as the entire thesis of the study. On the order of the first chapter. The second chapter will be cosmetic and medical care as a simple act of narrative, and then define for medical practices, and by the parties as to the purpose of the treatment of division can be divided into non-therapeutic purposes and the nature of the treatment for the purpose. After the segment is discussed in the medical cosmetic, physicians described the necessity of the obligation, and recorded in the surgery after informed consent form before the records. The third chapter is to explore the beauty of non-therapeutic medical civil liability, this will add the beauty of the substantive law on the medical case base and consolidate its claim as the related discussion. The fourth chapter is to explore whether there are medical cosmetic applicable Consumer Protection Law, the first medical practices as whether the Consumer Protection Law of the applicability of, and then acts as an extension of export in accordance with medical cosmetic medicine with or without the applicable Consumer Protection Law. Chapter V is conclusion.

碩士
銘傳大學
法律學系碩士班
98
Most people on a civil dispute involving events may occur in the consumer, securities trading events or of labor. So, there should be proper and applicable procedures regulations in civil procedural law. The Code of Civil Procedure 44-2 and 44-3 are provided for such events. But only in accordance with the provisions of Civil Procedure Act for the special events of civil disputes was not sufficient. Subjecting to specific provisions of particular law could make individual events in the civil proceedings on the trial. In U.S. law, German law and the laws of Japan, the proceedings have provisions to prevent the proceedings disorders, and to protect the rights of many parties for involving the majority of civil disputes. Such incidents in Taiwan, the existing provisions of procedural law has yet to be added and amended. This article proposed an amendment to the Civil Procedure Law and the supplementary proposal.

博士
東吳大學
法律學系
99
The nuclear dogma “no causation means not any liability at all” stemmed from the philosophic thought of “Corrective Justice” makes it essential in every liability actions to establish the exact causation connection, nevertheless the always difficult and problematic element, between the alleged wrongdoing and the injury complained of. Meanwhile, among the elements must be established to prove unjust enrichment, the causation inquiry is also the most challenging task, especially in multiple party payment litigations. Legal theorists and learned judges have devoted themselves to “causation” topic in the heavily inked legal literatures, trying to frame practically sound principles in both fields of civil liability and unjust enrichment, only to achieve limited success and trigger more confusion. According, this article was aimed to reconstruct the causation concepts in both civil liability (Chapter 3 to 7) and unjust enrichment (Chapter 8 and 9). In the section of civil liability, this article made a thorough and in-depth review on the distinguished and representative causation theories and important precedents in the Chapter 3, which led to the proposition of a new liability inquiring principle as depicted in Chapter 4. This liability inquiring principle was further elaborated in details in following two chapters. Pointed out in Chapter 5 was the fatal defect in traditional ways of causation reasoning in the cause-in-fact stage of inquiry since they exclusively restricted themselves to the logical “essential condition” by referring to the “but-for” test or “condition sine qua non” dictum, without properly paying due attention to “sufficient condition”,” conjunctive condition” and “disjunctive condition”… etc. This article attempted to elucidate systemically the fundamental logic regulations and illustrated how they were manipulated in causation reasoning, with special emphasis on the missing condition components described above. On the basis of the complete causation reasoning, Chapter 6 proceeded to investigate the substantial function of “adequate causation” mentioned in our Supreme Court Precedents with special reference to the directly or indirectly sufficient causes. In the event which the cause is directly sufficient to bring out the injury, if the cause is responsible to the injury as assessed by illegality and negligence, then the civil liability will be sustained without further applying the “adequate test”, of which the function will be totally absorbed in the inquiry process of negligence and proved to be totally useless. In the event which the cause is indirectly sufficient, the “adequate test” will reveal itself inadequate, since it skips the essence of illegality and negligence concerning the indirectly sufficient cause to the indirectly causing injury. The way how we inquired the illegality and negligence herein was different from that of we did to the directly sufficient cause, and it would rather be the augment whether cause should burden the doer with the “duty to prevent indirect injury” or not. If yes, yet he breaches, then the illegality sustains, and we can proceed to the negligence inquiry. Applying the fundamental regulations of logics and the principle of liability inquiring described in previous two chapters, Chapter 7 illustrated in depth the way they were manipulated systemically in our Civil Code §§185~191-3 to make understood the distinct way the shift from individual to group and special patterns of responsibility. In the section of unjust enrichment, Chapter 8 briefly reviewed the important and representative opinions dealing with the causation. When proceeding to Chapter 9, this article firstly holds that the concept of “logic connection” should be substituted for the “causation” element herein, since what actually bridging in-between the benefit and loss was not the matter of “cause-and-consequence”, but rather the “connection in fact” in nature. Secondly advocated was the concept of the “net” benefit and loss, which elaborates the overall assessment of property difference as a consequence of a certain intervening event, tangible or intangible assets all included. Especially highlighted was the importance that the emergence and elimination of creditor’s right and debt should not be ignored. When multiple events intervene, the individual benefit and loss can be integrated into a comprehensive one, only if these events exhibit causation in-between. This article thereafter attempted to illustrate the way how the crucial application of “transitive rule” is manipulated in establishing the “connection in fact” between benefit and loss, which will definitely help to identify the party who really is enriched at the expense of another who’s loss and thus grasp the unabridged integrated “causation” element in proving unjust enrichment. In conclusion, with cunning and appropriate application of logic regulations in the inquiry into the connection between the alleged wrongdoing and the injury complained of, and between benefit and loss, the actual situation can be easily and consistently clarified, and the liability inquiring or restitution can properly be made. Only then can the fairness, equity and justice of jurisdiction finally be realized in civil liability and unjust enrichment litigations.

碩士
國立臺北大學
法律學系一般生組
107
How time as an evaluation factor of civil law is in consistent with the analysis of how each phenome of time in civil law system to be a factor in order to justify the institute of civil law which is related. In my point of view, the factor of time is just the part of formal structure from civil law system. A norm which is based on time must be justifiable according to the whole system of civil law. In this essay I suggest to analysis three dimension of time and related norms in civil law. First, in linear time is everything in the relation of ‘before’ and ‘after’. The major issue in this part is whether the doctrine of ‘First come, first service, and the differential treatment depend on time are justifiable. Second, I analysis institutes related to period in civil law system. When legal relationship is not ascertained or may be obstructed, or when statue quo must be firstly considered because time past, these legal relationships must be revised by peremption or/and prescription. On the other hand, damage of delay should not be unlimited expanded when status of non-performance in endless time has never been eliminated. Third, I focus on the uncertainty of future which is the one of dimension of time and how legal relationship from parties’ intent respond to it. Especially I analysis the structure of expectant right and the factor of future in security law, which are consistent with the reasonable parties’ intent.

Tese de doutoramento em Direito, na especialidade de Ciências Jurídico-Criminais, apresentada à Faculdade de Direito da Universidade de Coimbra
O objetivo desta tese é, inicialmente, demonstrar que, apesar da diversidade de tratados bilaterais e multilaterais assinados nas últimas décadas, o cenário atual de desenvolvimento de uma persecução penal internacional segura e eficiente encontra-se distante do ideal, afetando tanto o interesse da aplicação eficaz da norma como os direitos fundamentais do arguido. A partir dessa verificação, busca-se sugerir que os Estados devem ambientar-se a uma nova postura de política cooperativa e integracionista, habilitando suas estruturas jurídicas internas e, cada vez mais, acionando e aprimorando seus ordenamentos jurídicos ante o processo de harmonização e de cooperação jurídica internacional. Voltar-se à proeminência das jurisdições estatais internas, estando estas entrelaçadas por amarras materiais e procedimentais de cooperação penal internacional, constitui medida que, sem macular a necessária previsão normativa da legalidade e do poder soberano dos Estados, permitirá a preservação de bens jurídicos de contornos nacionais e internacionais. Busca-se, assim, atingir um modelo de sistema jurídico internacional solidário e cooperativo que envolva, de forma harmônica, recíproca e interdependente, todos os outros ordenamentos jurídicos nacionais, além das ordens jurídicas supranacionais e internacionais existentes, aptas a promover uma adequada dinâmica de cooperação penal internacional entre todos os envolvidos, sem o rompimento dos compromissos de proteção e de promoção dos direitos humanos individuais, agindo, portanto, com critérios de razoabilidade, mas também de eficácia. Entretanto, diante da ampla diversidade de sistemas jurídicos - especialmente os separados por tradições jurídicas diferentes -, intensificada pela especificidade de características de cada um e, em cada sistema, pela multiplicidade de soluções jurídico-penais, a comunhão de interesses jurídicos torna-se uma realidade difícil de ser concretizada. Nesse sentido, criar um alicerce normativo comum entre ordenamentos de distintas famílias do direito (aqui, especialmente, das tradições da Common Law e da Civil Law) constitui trincheira de transposição ainda mais custosa, eis que a contingência de antagonismo e incompatibilidade possui lastro ainda mais extenso. Em que pese uma gradativa aproximação entre os dois sistemas, nas últimas décadas, restam ainda evidenciados variados distanciamentos entre os mesmos, de modo que se tenta buscar o estreitamento de seus institutos primordiais (precedentes, de um lado, e base normativa mínima, de outro), como forma de incentivar a dinâmica de harmonização e de obter um melhoramento do sistema jurídico de cooperação penal internacional. Na direção de ideias que são postas na presente tese, mesmo sabendo quão longe se está de uma completa uniformidade nas manifestações judiciais, deve-se ter como firme e incorruta a aspiração de se atingir uma justiça penal baseada em uma igualdade de consideração das situações concretas, com os limites que lhe forem impostos pelos precedentes judiciais, desaguando, a partir daí, como proposta última e primordial, na necessidade de constituição de elementos normativos mínimos de determinados injustos penais internacionais e de criação de um instrumento uniforme de cooperação penal internacional entre os diversos países. Nesse aspecto, tentar-se-á demonstrar que cada país e cada tratado sugerem medidas com listas específicas de requisitos, sendo, portanto, inúmeras as variantes, o que acaba, em algum momento, por romper o encadeamento da medida cooperativa solicitada no exterior, prejudicando, assim, a relação de cooperação, bem como - na mesma ou até em maior medida – malferindo a própria segurança jurídica do encaminhamento da persecução penal empreendida através do pleito cooperativo e, pois, a própria situação jurídico-processual do visado. O grande desafio para a cooperação jurídica internacional é a criação de um instituto uniforme que possibilite respeitar o devido processo legal e também as peculiaridades de cada ordenamento, ensejando ao mesmo tempo o aprimoramento da cooperação e o respeito aos direitos do indivíduo. Já que o intuito de desenvolver a cooperação entre os Estados e proteger judicialmente os direitos individuais envolvidos depende de um maior grau de linearidade no procedimento cooperativo, controle judicial e de uma maior desburocratização e aproximação das legislações, será proposta a criação, no âmbito de cada ordenamento jurídico, do instituto da Colaboração Recíproca Direta através de jurisdição exclusiva da autoridade judicial de primeiro grau, dispensando a delibação de quaisquer outros órgãos do Poder Judiciário e a ingerência de qualquer outro órgão diplomático ou de outro poder constitucional.
Initially, the purpose of this thesis is to demonst rate that, despite the diversity of bilateral and m ultilateral treaties signed in recent decades, the current scen ario of developing a safe and efficient internation al criminal prosecution is far from ideal, both affect ing the interest of an effective application standa rd as well as the fundamental rights of the defendant. Ba sed on this verification, this thesis suggests that States should acclimatize to a new position in a cooperati ve and integrationist policy, enabling its internal legal structures, and increasingly, activating and improv ing its legal systems before the harmonization proc ess and international legal cooperation. Back to the pr ominence of the internal state jurisdictions, and b eing interlaced by material restrains and international criminal cooperation procedures, which constitutes a measure without tarnishing the necessary legislativ e provisions of law and the sovereign power of Stat es, will allow the preservation of legal assets of Nati onal and international boundaries. Thus, it aims to achieve a model of solidarity and cooperative inter national legal system which involves an harmonic, reciprocal and interdependent manner, all the other national legal systems, in addition to existing supranational and international legal systems, and able to promote a adequate dynamic of international criminal cooperation between all involved, without the disruption of protection commitments and promotion of individual human rights, acting theref ore with criteria of reasonableness, but also effic iency. However, given the wide diversity of legal systems - especially those separated by different legal traditions - intensified by the specific characteri stics of each and every system, the multiplicity of legal- criminal solutions, the communion of legal interest s becomes a reality difficult to bring about. In th is sense, to create a common legal foundation between systems of different law families (here especially the traditions of Common Law and Civil Law) is implemen ting a trench even more costly, once the contingency antagonism and inconsistency has ballas t further extensive. Despite a gradual rapprochemen t between the two systems in recent decades, there ar e still evidenced varying distances between them, s o that it try to get closer to its primary institutes (preceding of one side, and minimal normative basi s, of other) as a way to encourage harmonization of dynam ics and get an improvement of the legal system of international criminal cooperation. Toward the idea s that are exposed in this thesis, even knowing how far it is a complete uniformity in legal demonstrations , it should be a firm and incorruptible aspiration to achieve a criminal justice based on equal considera tion of real situations with the limits which are imposed by judicial precedents, emptying, from ther e, as the last and primary proposal, the need for establishment of minimum regulatory elements of cer tain international criminal unjust and creating a single instrument of international criminal coopera tion between several countries. In this respect, ea ch country will attempt to demonstrate and each treaty will suggest measures with specific lists of requirements, and therefore numerous variants, whic h ends at some point, to break the chain of cooperative measure sought abroad, thus undermining the relationship of cooperation, as well as – in t he same or even greater extent - seriously wounded its own legal security of the routing of the criminal prosecution undertaken by the cooperative elections and therefore its own legal and procedural status of the individual. The major challenge for the interna tional legal cooperation is the creation of a sole institute which allows comply the due process and a lso the peculiarities of each system, giving rise a t the same time the improvement of cooperation and respec t for individual rights. Whereas the aim of developing an cooperation between States and legall y protect the individual rights involved depends on a high degree of linearity in the cooperative procedu re, judicial control and further reducing bureaucra cy and approximation of the legislations, the proposed creation will enforce within each law of the insti tute an Direct Reciprocal Collaboration through exclusive jurisdiction from the legal auth ority of first degree, dismissing the resolution of any other agencies of the Judiciary and the interference of any other diplomatic department or other constitutional power

碩士
東吳大學
法律學系
94
Recently, administration law has a long-term development. Litigation improvement, execution rebuild-up, procedure and punishment law approval, or chancellor constitution court, legal system has obviously tended to diversification and stepped to a modern country of human right protection. Meanwhile, to follow the above-mentioned science of law development and open-up of litigation relief, many new administrative behavior types will be appeared one by one. In comparison with science of law, related standard norm is insufficient. Although approval of administrative procedure act has relieved under certain level of standard shortage awkward situation, further observation will find its key point, besides the related stipulation, substantially has been concentrated to legal behavior. Other behavior type of administration law is to be wanting. To comply with opening of litigation, the occurrence of law relations is not limited to behavior; it may happen to administration law legal relations and bring to follow-up litigation. Therefore, situation of the court lack of judgment standard will be appeared. According to the Chancellor Shih-Tze-No.515, it is recognized that administration law general unjust enrichment has been existed and can be to litigation object. There is no establishment document and effects of unjust enrichment of the current administrative procedure law. Article No.127 indicates that the scope to be suitable for use of 「administrative punishment of granting benefits and settlement of providing one-time or continuous money or divisible object」 only; and to possibly occurrence of unjust enrichment, there is no related standard. In addition, although administration law has been stipulated that general statute of limitations in the administrative procedure act, in terms of quantity analysis, it has five articles; as well as to compare with the civil law of 23-article, its density is obviously insufficient. Current administration law is unable to provide with enough standards to the court for judgment; therefore, analogy to be filled in legal loophole has become hard to avoidable phenomenon of the administration law. This study will be based on analogy theory to confer difference of administration law and other laws with several case study of new analogy to completely understand it. Its research scope will mainly be focused to analogy of the administration law. Chapter 1「Introduction」： With aim to study motivation, purpose, methodology and concerned subject, importance of analogy of administration law and currently occurred issues will be raised. Chapter 2「Analogy summary」： In the light of analogy theory and legal loophole control, constitution meaning, relations of legal loophole, standard comparison, type and operation of analogy will be induced. Chapter 3「Administration law analogy permission」： When study analogy of the administration law, is it workable to all issues or there is any permission standard, under the legislator has no intention of omission, and loophole willl be undertaken. In principle, jurisdiction or administration right can be replenished or not, it will depend on each country how to distribute its power. At this point, its scope and legal reservation can be closely linked. In other words, the reservation content is the permission scope. In the light to undertake 「overall check-up」 and through chancellor related explanation, induction and analysis, a new appearance will be formed as permission of analogy.. Chapter 4「Administration analogy restriction」： The nature difference of administration and civil law is not consistent with restriction. Especially, administration law has constitution restriction; when analogy is undertaken, it has the strictest standard. Under permission of analogy, further restriction will be put things in order and induced to totally control analogy restriction. Chapter 5「Administration law analogy development」： Through analogy, statute of limitations, civil law and administration law unjust enrichment and voluntary service has been formed. Type and related viewpoint of analogy of administration law will be reviewed. Chapter 6「Conclusion」： In order to understand the thread of thought, coming together and viewpoint of this study, some ways of looking at things will be presented for further research and development and practical operation for reference.

碩士
東吳大學
法律學系
101
Abstract Advanced genetic technology and science are fast improved in recent years. Utilizing the genetic testing not only diagnose or predict the disease and analyze the risk degree of the genetic disorders, but also offer the life guidance to those who receive genetic testing promptly, and encourage them to deal with their health in positive manner. A large number of commercial companies provide genetic testing services to the public nowadays. The commercial genetic testing services directly accessed by the general public through non-medical channels are collectively known as the direct-to-consumer genetic testing. This thesis will examine the legal disputes of commercial genetic testing,the legislative perspective concluded both views of Civil Law and Consumer Protection Law. Finally, we will try to seek out the remedies for those who receive genetic testing to strike the balance between protecting the public interests and developing the innovative business. Chapter 1 ：the motives and the purposes of the thesis are described in the beginning of the research. And it also defines the scope, method and the framework of the research. Chapter 2 gives an overview to commercial genetic testing ,including definitions,characters,types,and so on. Chapter3 involves study of the contracts resulting from commercial genetic testing. Under the framework of the existing Civil Law, Consumer Protection Law, this sector carried out an exploration into legal troubles triggered by commercial genetic testing. Chapter4 will examine the liability in torts for commercial companies.The core factor of civil liability is liability for damage.In the structure of our civil Law, liability for damage mainly includes tortious liability and non-performance of obligation liability.Therefore, this chapter will discuss ordinary tort as well as special tort(§191-1 in civil law) in tort liability. Chapter5 involves the Analyses of Product Liability and Service Liability in Consumer Protection Law. Consumer Protection Law regulates both services and products share the equal liability, this chapter shall bring to the further discussion. Chapter 6：Conclusion and Suggestion. The final chapter summarizes the issues described in this thesis. And some suggestions are also be made for the advices to the and.