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INVESTMENT COURT SYSTEM OF CETA: ADVERSE EFFECTS ON THE AUTONOMY OF EU LAW AND POSSIBLE SOLUTIONS CETA投资法庭制度对欧盟法律自主权的不利影响及对策
Q4 Social Sciences Pub Date : 2019-12-18 DOI: 10.13165/j.icj.2019.12.003
Simas Grigonis
The Court of Justice of the European Union (CJEU) has recently assessed the compatibility of the reformatory Investment Court System (ICS) of the EU’s trade agreement with Canada (CETA). In the Opinion 1/17, the CJEU ruled the ICS mechanism to be compatible with EU law. This article provides a comprehensive critical assessment of the ICS mechanism and its potential adverse effects on uniform interpretation of EU law. It is proposed that, despite the favourable assessment of the CJEU, the ICS mechanism could result in indirect negative effects on the uniform interpretation of EU law and the autonomy of EU legal order. Involvement of the CJEU in the proceedings of the ICS mechanism is suggested as a possible option to resolve all the incompatibilities of the ICS with the autonomy of the EU legal order, and to ensure the CJEU’s exclusive right to interpret EU law.
欧盟法院(CJEU)最近评估了欧盟与加拿大贸易协议(CETA)的重整投资法院系统(ICS)的兼容性。在第1/17号意见中,欧盟法院裁定ICS机制符合欧盟法律。本文对ICS机制及其对欧盟法律统一解释的潜在不利影响进行了全面的批判性评估。有人提议,尽管欧盟司法部长的评价是有利的,但ICS机制可能会对欧盟法律的统一解释和欧盟法律秩序的自主权产生间接的负面影响。建议欧盟法院参与ICS机制的程序,作为解决ICS与欧盟法律秩序自主权不兼容的所有问题的一种可能选择,并确保欧盟法院解释欧盟法律的专属权利。
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引用次数: 2
The Impact of the Judgement in Case C-219/17, Berlusconi and Fininvest, on Court Jurisdiction Regarding Legality of Acts by Institutions of Single Resolution Mechanism 贝卢斯科尼与菲尼维斯特案C-219/17判决对单一决议机制机构行为合法性法院管辖权的影响
Q4 Social Sciences Pub Date : 2019-12-18 DOI: 10.13165/j.icj.2019.12.004
Martin Maarand
A case of the European Court of Justice C-219/17, Berlusconi and Fininvest, laid down important rules for differentiating between the jurisdictions of EU courts and national courts in actions challenging the final decisions of composite procedures in the Single Supervisory Mechanism. As this judgement does not cover all scenarios, nor are there such decisions regarding the Single Resolution Mechanism, a universal test is developed for revealing if EU courts or national courts have jurisdiction over acts of composite procedures in the Banking Union. This test is then implemented on the most important acts within the Single Resolution Mechanism.
欧洲法院C-219/17案Berlusconi和Fininvest在对单一监督机制中的复合程序的最终裁决提出质疑的行动中,为区分欧盟法院和国家法院的管辖权制定了重要规则。由于该判决并不涵盖所有情况,也没有关于单一解决机制的此类决定,因此制定了一个通用测试,以揭示欧盟法院或国家法院是否对银行联盟的复合程序行为具有管辖权。然后对单一解决机制内最重要的行为进行此测试。
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引用次数: 0
INTERNATIONAL COMMERCIAL ARBITRATION – ENFORCEMENT OF ARBITRAL AWARDS REVISITED 国际商事仲裁——再论仲裁裁决的执行
Q4 Social Sciences Pub Date : 2019-12-18 DOI: 10.13165/j.icj.2019.12.005
Pranas Mykolas Mickus
International commercial arbitration is becoming increasingly convoluted, and hence requires a certain degree of uniformity in order to achieve true international applicability. As a result of this complexity, after arbitration proceedings finish both the national courts of the seat of arbitration and the national courts of enforcing jurisdiction are caught in the dilemma of how to interact with each other, as well as with the arbitral awards produced by arbitral tribunals. This article assesses this phenomenon critically in order to weight current developments in arbitration against the normative structure of arbitration as they were originally intended.
国际商事仲裁正变得越来越复杂,因此需要一定程度的一致性才能实现真正的国际适用性。由于这种复杂性,仲裁程序结束后,仲裁所在地的国家法院和执行管辖权的国家法院都陷入了如何相互作用以及如何与仲裁庭作出的仲裁裁决相互作用的困境。本文对这一现象进行了批判性的评估,以便将仲裁的当前发展与仲裁的规范结构进行权衡。
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引用次数: 0
NATIONAL MINORITY AND THE RULE OF LAW: THE CASE OF TATARS AND TATAR LANGUAGE IN CONTEMPORARY RUSSIA 少数民族与法治:当代俄罗斯鞑靼人和鞑靼语的个案
Q4 Social Sciences Pub Date : 2019-12-18 DOI: 10.13165/j.icj.2019.12.006
E. Lyapina
In July 2017, during a meeting of the Council on Interethnic Relations, in the framework of the Strategy of Russia’s national policy the Russian president declared that children should not be forced to study indigenous languages in the national republics of Russia. In November of the same year, the Republic of Tatarstan’s Parliament abolished compulsory study of Tatar language in schools, contrary to the Constitution of Russia and its Federal legislation providing equal legal statuses to Russian and Tatar languages in the Republic of Tatarstan. Tatars, being a Turkic nation with Islamic views, are the second largest ethnic population in Russia, where the dominant vector of national identity is orthodox and Slavic. Recently, the issue of Tatar identity and Tatar language is under pressure from political discourse which prevails over the legal order, and which may lead to a decrease in the level of multiculturalism in the country. The author concludes that the Rule of Law is at risk since the rights of minorities to an education in their native language, which are guaranteed not only by international treaties but also by the Constitution and Federal law of Russia, are being disregarded or opted out of by the new Law on Education in Russia.
2017年7月,在民族关系委员会会议上,在俄罗斯国家政策战略框架下,俄罗斯总统宣布,不应强迫俄罗斯各民族共和国的儿童学习土著语言。鞑靼人是一个信奉伊斯兰教的突厥民族,是俄罗斯人口第二大的民族,在俄罗斯,民族认同的主要载体是东正教和斯拉夫。最近,鞑靼人的身份和鞑靼语问题受到凌驾于法律秩序之上的政治话语的压力,这可能导致该国多元文化水平的下降。发件人的结论是,法治正处于危险之中,因为俄罗斯新的《教育法》无视或取消了少数民族接受母语教育的权利,这些权利不仅受到国际条约的保障,而且受到俄罗斯《宪法》和联邦法的保障。
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引用次数: 1
The Judge as an Impartial Subject in Criminal Proceedings: The Case of Lithuania 刑事诉讼中的公正主体法官:立陶宛案例
Q4 Social Sciences Pub Date : 2019-06-28 DOI: 10.13165/J.ICJ.2019.05.010
Rasa Žibaitė–Neliubšienė
This article analyses the judge's role as an impartial subject in criminal proceedings. Lithuania's legal system belongs to the Romano-Germanic system characterised by the inquisitorial model of criminal process. However, the prevailing constitutional doctrine that separates the procedural functions of criminal procedure and jurisprudence of the Constitutional Court obliges the judge to seek to establish the strict truth by giving him/her a procedural tool – namely, an obligation to be active and act impartially. To reduce the possible misuse of judicial discretion, the law establishes the factors that limit it and ensure impartiality, including imperative procedural rules, the obligation of motivation for a judgment, the instance system of courts, and the system of guarantees ensuring the judge's independence.
本文分析了法官在刑事诉讼中作为公正主体的作用。立陶宛的法律体系属于罗马-日耳曼体系,其特征是刑事诉讼的检察模式。然而,将刑事诉讼的程序职能与宪法法院判例分开的现行宪法原则要求法官通过向他/她提供程序工具,即积极和公正行事的义务,来寻求确定严格的真相。为了减少可能滥用司法自由裁量权的情况,法律规定了限制司法自由裁裁量权并确保公正性的因素,包括强制性程序规则、判决动机义务、法院的审判制度以及确保法官独立性的保障制度。
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引用次数: 0
The Constitutional Right to Information in Poland. Theory and Practice 波兰宪法规定的知情权。理论与实践
Q4 Social Sciences Pub Date : 2019-06-28 DOI: 10.13165/J.ICJ.2019.05.005
Michał Bernaczyk
The following article provides the outline of the right to information on activities of the persons discharging public functions and public organs in the Republic of Poland. The article considers the structure of the right established in the Constitution of 2 April 1997 and its connection with freedom to receive and impart information.
以下条款概述了波兰共和国履行公共职能人员和公共机关活动的知情权。该条审议了1997年4月2日《宪法》确立的权利结构及其与接受和传递信息自由的关系。
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引用次数: 0
LEGAL REGIME OF PROPERTY OF UKRAINIAN LEGAL ENTITIES 乌克兰法律实体财产的法律制度
Q4 Social Sciences Pub Date : 2019-06-28 DOI: 10.13165/J.ICJ.2019.05.007
Inna Spasibo-Fateeva
This article examines the existing legal regime of property of legal entities under Ukrainian legislation. Various forms of legal right to property are analysed by the author: ownership, right of economic and operational management, right to use and other real rights and rights of obligation (rights in personam). Most existing titles are controversial, both from a theoretical and practical standpoint. From a theoretical standpoint, it is rather hard to distinguish these forms one from another and to point out their peculiarities. This is especially true about rights of economic and operational management, which were designed in the Soviet period for the purposes of the Soviet economy, but somehow remained in modern Ukrainian legislation. As existing case law shows, this leads to numerous legal disputes which reveal, in particular, the problems of liability of a legal entity and its property independence. The most notorious among these disputes are analysed in the paper, including the dispute between the Ukrainian state and Ukrainian trade unions regarding property transferred to them by the former USSR, the dispute between certain Ukrainian companies and the Russian Federation on property expropriated in Crimea. Based on the analysis, the author suggests certain solutions to existing problems. First, the author insists on recognizing legal entities as property owners. Second, the author proves that public companies need more detailed regulation and are to be provided a clear legal status. It is preferable to stipulate these issues in the Civil Code of Ukraine thus providing comprehensive regulation on all types of legal entities.
本文审查了乌克兰立法下法律实体财产的现行法律制度。作者分析了各种形式的合法财产权:所有权、经济经营管理权、使用权和其他不动产权利和义务权利(人身权利)。从理论和实践的角度来看,大多数现有的标题都存在争议。从理论的角度来看,很难区分这些形式,也很难指出它们的特点。经济和运营管理权尤其如此,这些权利是在苏联时期为苏联经济而设计的,但不知何故仍保留在现代乌克兰立法中。正如现有判例法所表明的那样,这导致了许多法律纠纷,特别是揭示了法律实体的责任及其财产独立性问题。本文分析了这些争端中最臭名昭著的争端,包括乌克兰国家和乌克兰工会之间关于前苏联移交给他们的财产的争端,以及某些乌克兰公司和俄罗斯联邦之间关于在克里米亚征用财产的争端。在分析的基础上,作者对存在的问题提出了一定的解决方案。首先,作者坚持承认法律实体是财产所有人。其次,作者证明了上市公司需要更详细的监管,并需要获得明确的法律地位。最好在《乌克兰民法典》中规定这些问题,从而对所有类型的法律实体提供全面的监管。
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引用次数: 0
CONSTITUTIONAL STABILITY AND DYNAMICS IN THE CZECH REPUBLIC 捷克共和国的宪法稳定与动态
Q4 Social Sciences Pub Date : 2019-06-28 DOI: 10.13165/J.ICJ.2019.05.003
Jan Grinc
This article discusses the stability and dynamics of the Czech constitution, especially the ‘frame of government’. First, the circumstances of the adoption of the Czech Constitution from 1993 are described, as well as the initial problems with the implementation of bicameralism. Second, the rigidity of the constitution in formal and material sense is analysed. Here, the article demonstrates that the procedural rules for adopting constitutional acts (qualified majorities in both chambers of the Parliament) have to be considered in connection with the electoral and political system in the Czech Republic in order to get a good picture. By an overview of constitutional acts adopted since 1993, it is shown that the constitutional system has not been subject to major changes and remained rather stable. Two important exceptions, i.e. moments of constitutional development are discussed in detail: the cancellation of early election in the Chamber of Deputies by the annulment of a constitutional act by the Constitutional Court and the introduction of direct election of the President of the Republic and its impact. In both cases, the lack of governmental control over the dissolution of the Chamber of Deputies—arguably the weakest point of the constitutional system—amplified the political crises in the short-term, but did not prevent the return to regular functioning of the parliamentary system. The article, therefore, comes to the conclusion that the Czech constitution is rather stable and functional. The rules ensuring its rigidity have been successful and may serve as an inspiration from the comparative perspective.
本文讨论捷克宪法的稳定性和动态,特别是“政府框架”。首先,叙述了1993年以来通过捷克宪法的情况,以及在实行两院制方面最初遇到的问题。其次,分析了宪法在形式和物质意义上的刚性。在这里,该条表明,必须结合捷克共和国的选举和政治制度来考虑通过宪法法案的程序规则(议会两院的特定多数),以便得到一个良好的情况。通过对1993年以来通过的宪法法案的概述,可以看出,宪法制度没有发生重大变化,并保持相当稳定。详细讨论了两个重要的例外情况,即宪法发展的时刻:通过宪法法院废除一项宪法法案来取消众议院的提前选举,以及引入共和国总统的直接选举及其影响。在这两种情况下,政府对解散众议院缺乏控制——可以说是宪法制度的最薄弱环节——在短期内加剧了政治危机,但并没有阻止议会制度恢复正常运作。因此,该条得出的结论是,捷克宪法相当稳定和有效。确保其刚性的规则是成功的,可以从比较的角度提供启发。
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引用次数: 0
DIRECT APPLICATION OF THE REPUBLIC OF POLAND’S CONSTITUTION IN THE CASE LAW OF ADMINISTRATIVE COURTS 在行政法院的判例法中直接适用波兰共和国宪法
Q4 Social Sciences Pub Date : 2019-06-28 DOI: 10.13165/J.ICJ.2019.05.004
Ewa Wojcicka
This article analyses the judicial decisions of the Polish administrative courts from the perspective of the principle of direct applicability of the Constitution. This principle, integrally connected with the highest legal force of the Constitution, is of fundamental importance in the process of reconstruction of the legal provisions carried out by courts. It takes various forms, including independent application of the Constitution’s provisions, co-application of the Constitution and other legal acts, and ascertainment of conflicts between the provisions of the Constitution and other legal acts. An analysis of decisions by administrative courts shows that these commonly refer to the Constitution. The most popular form of implementation of the Constitution is the co-application of its provisions with statutory ones and other legal acts. The application of constitutional provisions is increasingly becoming the norm in administrative adjudication. This also indicates that among the Constitution’s various functions, it is the legal one that plays a major role.
本文从宪法直接适用原则的角度对波兰行政法院的司法判决进行了分析。这一原则与《宪法》的最高法律效力紧密相连,在重建法院执行的法律规定的过程中具有根本重要性。它的形式多种多样,包括独立适用宪法条款、宪法与其他法律行为共同适用、确定宪法条款与其他法律行为之间的冲突。对行政法院裁决的分析表明,这些裁决通常涉及宪法。宪法最普遍的实施形式是宪法条款与成文法和其他法律行为共同适用。适用宪法规定日益成为行政审判的常态。这也表明,在宪法的各种职能中,法律职能起着主要作用。
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引用次数: 0
POLISH CONSTITUTION AFTER 20 YEARS 20年后的波兰宪法
Q4 Social Sciences Pub Date : 2019-06-28 DOI: 10.13165/J.ICJ.2019.05.002
J. Żurek
The text studies current constitutional tensions in Poland. The author is analysing political problems in good and effective governance in Poland, which are caused by vague constitutional provisions that construct unclear relations between main state bodies. Therefore, he criticises the constitutional system that, instead of solving problems, only multiplies them. One of the reasons of this situation he blames on the authors of the 1997 Constitution, which gave more importance to the political aims of that time than to the construction of solid and effective system of state bodies. In order to change this situation, the author calls for a profound constitutional reform. To text includes present tensions between the government and the Supreme Court as well as brief information on the 2015–2107 conflict with the Polish Constitutional Tribunal.
该文本研究了波兰目前的宪法紧张局势。作者正在分析波兰良好和有效治理中的政治问题,这些问题是由模糊的宪法条款造成的,这些条款在主要国家机构之间构建了不明确的关系。因此,他批评宪法制度不是解决问题,而是使问题成倍增加。他认为造成这种情况的原因之一是1997年宪法的制定者,他们更重视当时的政治目标,而不是建设坚实有效的国家机构体系。为了改变这种状况,笔者呼吁进行深刻的宪法改革。文本包括目前政府与最高法院之间的紧张关系,以及2015-2107年与波兰宪法法庭冲突的简要信息。
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引用次数: 0
期刊
International Comparative Jurisprudence
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