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The European Dimension to the Constitution of the Republic of Italy 意大利共和国宪法的欧洲层面
Q3 Social Sciences Pub Date : 2022-12-13 DOI: 10.12775/clr.2022.014
Gariella Mangione
Italy was one of the countries that signed the Treaty of Rome in 1957, which created the European Economic Community. Despite initial resistance and the numerous difficulties encountered during subsequent years, the choice to commit to Europe was widely shared, becoming irreversibly embedded in the national consciousness. However, whilst other legal systems chose at various stages of their European journey to amend their constitutions by incorporating a European clause, this never happened in Italy. Italy did not change its Constitution as a result of joining the European Economic Community, and has not done so subsequently after becoming part of the European Union with the Maastricht Treaty, following the adoption of the Treaty of Lisbon, nor indeed at any subsequent stage in the process of European integration. It was only in 2001, with the reform of Title V of the Constitution involving changes in the allocation of powers between the state, the regions, and the local authorities, that the expression “Community law” was incorporated into the Constitution. Given the absence of a European clause, the relationship between the Italian Constitution and Europe has been shaped by the Constitutional Court. First and foremost, it interpreted Article 11 of the Constitution, which lays down a generic clause intended to enable the exercise of sovereign powers by international organizations, in such a manner as to bring the European project within its scope. The Constitutional Court developed its case law in its subsequent decisions, even though progress was at times hardfought, and in some cases marked by contradictions; Italy’s cohabitation with Europe was undoubtedly welcome, but this did not mean that it was painless.
意大利是1957年签署《罗马条约》的国家之一,该条约建立了欧洲经济共同体。尽管最初遇到了阻力,在随后的几年里遇到了许多困难,但对欧洲的承诺得到了广泛认同,并不可逆转地植根于民族意识中。然而,尽管其他法律体系在其欧洲之旅的各个阶段都选择通过纳入欧洲条款来修改宪法,但意大利从未发生过这种情况。意大利没有因为加入欧洲经济共同体而修改其宪法,在《里斯本条约》通过后,意大利也没有在《马斯特里赫特条约》成为欧洲联盟的一部分后,甚至在欧洲一体化进程的任何后续阶段这样做。直到2001年,随着《宪法》第五章的改革,涉及国家、地区和地方当局之间权力分配的变化,“社区法”一词才被纳入《宪法》。由于没有欧洲条款,意大利宪法与欧洲之间的关系由宪法法院决定。首先,它解释了《宪法》第11条,该条规定了一项通用条款,旨在使国际组织能够行使主权,从而将欧洲项目纳入其范围。宪法法院在随后的裁决中制定了判例法,尽管进展有时很艰难,在某些情况下还存在矛盾;意大利与欧洲的同居无疑是受欢迎的,但这并不意味着它是无痛的。
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引用次数: 1
The Principles of Subsidiarity and Decentralisation During the COVID-19 Pandemic, with Particular Emphasis on the Polish and Finnish Legal Systems COVID-19大流行期间的辅助和下放原则,特别强调波兰和芬兰的法律制度
Q3 Social Sciences Pub Date : 2022-12-13 DOI: 10.12775/clr.2022.003
Dawid Bunikowski, Robert Musiałkiewicz
The article focuses on the principles of subsidiarity and decentralisation during the COVID-19 pandemic, with particular emphasis on the Polish and Finnish legal systems (both countries in the Baltic Sea Region). How were those constitutional principles concerning self-government “treated” (dealt with) by public authorities? It analyses the principles of subsidiarity and decentralisation, interpretations of the principle of decentralisation in both Poland and Finland, relations between the state and local self-government, cooperation between the government and self-government administration in combating the pandemic in selected countries, and Polish and Finnish regulations during the pandemic. Methodologically speaking, many different  methods and sources are applied. The methodological  approach is analytical (analysis of legal acts, literature, media releases and different reports), but also empirical (observation of reality). The thesis is that the principles of subsidiarity and decentralisation during the COVID-19 pandemic were commonly disregarded during the pandemic.
文章重点阐述了新冠肺炎大流行期间的辅助性和权力下放原则,特别强调了波兰和芬兰的法律体系(这两个国家都在波罗的海地区)。公共当局如何“处理”这些关于自治的宪法原则?它分析了辅助性和权力下放的原则,对波兰和芬兰权力下放原则的解释,国家和地方自治政府之间的关系,选定国家政府和自治行政部门在抗击疫情方面的合作,以及波兰和芬兰在疫情期间的规定。从方法论上讲,应用了许多不同的方法和来源。方法论方法是分析性的(对法律行为、文献、媒体发布和不同报告的分析),但也是实证的(对现实的观察)。论文认为,在新冠肺炎大流行期间,辅助性和分散性原则在大流行期间通常被忽视。
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引用次数: 0
The Right to Conclude Collective Agreements and Collective Bargaining: International Standards and the Legislation of Ukraine 签订集体协议和集体谈判的权利:国际标准与乌克兰立法
Q3 Social Sciences Pub Date : 2022-12-13 DOI: 10.12775/clr.2022.005
I. Dashutin, O. Hubska, Olena M. Hanechko, V. O. Havrylyuk, Oleksandra V. Vaytsyshena
The possibility of concluding collective agreements and negotiations is enshrined in international documents and is perhaps the most important principle of labour law. In modern times, this principle and law are still the focus of the International Labour Organization, which considers this right, firstly, as the main labour right and an important socio-economic and political aspect. An important labour right of a person is the fixed opportunity to conclude collective agreements and negotiate. The study of the essence and content of this law is of paramount importance for modern legal science and labour law in particular. In the course of the research, such methods as dialectical, formal-logical, comparative-legal, hermeneutics, analysis, and synthesis were used. Before the study, the aim was to analysee the nature, content, and essential characteristics of the right to conclude collective agreements and negotiations, to analyse existing international standards in this area, as well as the legal regulation of collective agreements and negotiations in the labour legislation of Ukraine.
缔结集体协议和谈判的可能性载于国际文件,也许是劳动法最重要的原则。在现代,这一原则和法律仍然是国际劳工组织的重点,国际劳工组织认为这一权利首先是主要的劳工权利,也是一个重要的社会经济和政治方面。一个人的一项重要劳动权利是签订集体协议和进行谈判的固定机会。研究这部法律的本质和内容,对于现代法学,特别是劳动法,具有极其重要的意义。在研究过程中,运用了辩证法、形式逻辑法、比较法学、解释学、分析法和综合法等方法。在进行研究之前,目的是分析缔结集体协议和谈判的权利的性质、内容和基本特征,分析这一领域的现有国际标准,以及乌克兰劳动立法中对集体协议和协商的法律规定。
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引用次数: 1
Introducing the Business Judgment Rule in Select Countries of the Arabian Gulf 在阿拉伯湾选定国家引入商业判断规则
Q3 Social Sciences Pub Date : 2022-12-13 DOI: 10.12775/clr.2022.001
Abdullah Ahmed Alkayat Alazemi
Examining the corporate practices of the Gulf Corporation Council (GCC) member states, this paper demonstrates the imperative that GCC nations implement rational board practice models and improve current laws and regulations that pertain to corporate boards of directors. GCC member countries increasingly need to diversify revenue-generating streams; improved corporate board practices are likely to increase income from foreign corporations and investments. Rational board policies protect board members from frivolous challenges related to legal culpability because they operate on a “good faith” model, augmenting corporate growth. Providing a coherent analysis of the business judgment rule, a significant as pect of rational board practices, this paper examines how the rule has worked in the United States and provides a standard for GCC countries to emulate. Shifting domestic policies to this rational model will promote foreign investments and result in financial stability, benefits that current reform practices initiated by the GCC have not yet accomplished.
通过考察海湾合作委员会(GCC)成员国的公司实践,本文表明海湾合作委员会成员国必须实施合理的董事会实践模式,并完善与公司董事会有关的现行法律法规。海湾合作委员会成员国越来越需要使创收来源多样化;改进公司董事会的做法可能会增加外国公司和投资的收入。合理的董事会政策保护董事会成员免受与法律责任相关的无聊挑战,因为他们以“诚信”模式运作,促进了公司的发展。本文对商业判断规则进行了连贯的分析,这是对董事会理性实践的一个重要考察,考察了该规则在美国的运作方式,并为海湾合作委员会国家提供了一个可供效仿的标准。将国内政策转变为这种理性模式将促进外国投资,并带来金融稳定,这是海湾合作委员会目前发起的改革实践尚未实现的好处。
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引用次数: 0
Participation in Public Religious Practices During the COVID-19 Pandemic. Between Various Limitations and Their Proportionality COVID-19大流行期间公众宗教活动的参与。在各种限制之间及其比例
Q3 Social Sciences Pub Date : 2022-12-13 DOI: 10.12775/clr.2022.008
Łukasz Skoczylas, Wojciech Piątek
The right to manifest religion or belief in community with others is one of the essential components of religious freedom. However, it has been significantly curtailed in many countries owing to the Covid-19 pandemic. This article identifies the scope of the introduced restrictions, their proportionality, and their impact on the functioning of religious communities. Section 1 sets out three different approaches to participation in public religious practices in selected countries with severe (Germany), moderate (Poland), and liberal (Belarus) restrictions. In section 2, an international perspective on access to religious buildings in times of emergency is presented. The conclusions of this research are juxtaposed in section 3 with the jurisprudence of the highest national courts in Germany, the United States, and France, in order to highlight proportional legal solutions for the protection of religious freedom and public health. In the last section, the consequences of the introduced restrictions are analysed from the perspective of religious associations, using the example of Poland. Lastly, predictions concerning future participation in religious services are also made.
与他人共同表达宗教或信仰的权利是宗教自由的重要组成部分之一。然而,由于2019冠状病毒病大流行,许多国家大幅削减了这一数字。本文确定了引入的限制的范围,它们的相称性,以及它们对宗教社区运作的影响。第一节列出了在一些国家参与公共宗教活动的三种不同方式,这些国家有严格的(德国)、适度的(波兰)和自由的(白俄罗斯)限制。在第2节中,介绍了在紧急情况下进入宗教建筑的国际视角。第3节将这项研究的结论与德国、美国和法国最高国家法院的判例并列,以强调保护宗教自由和公众健康的比例法律解决办法。在最后一节中,以波兰为例,从宗教协会的角度分析了引入限制的后果。最后,对未来参与宗教服务的情况也作了预测。
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引用次数: 0
Legal Regulations of Enforcement Procedure in Selected Foreign Jurisdictions 若干外国司法管辖区执行程序的法律规定
Q3 Social Sciences Pub Date : 2022-12-13 DOI: 10.12775/clr.2022.013
M. Malskyy
This article provides a brief comparative analysis of the peculiarities of the enforcement procedures in selected foreign countries and jurisdictions with various legal systems, including France, the United Kingdom, Belarus, Kazakhstan, the Baltic countries, as well as research into the organizational structure of their enforcement agencies. The article also provides an analysis of the diverse procedures applied in EU countries for enforcement of decisions of courts and other authorities in civil and commercial cases, including the European Enforcement Order, European Order for Payment, European Small Claims Procedure, as well as the procedure under the Recast Brussels I Regulation. The author’s objective is to consider the procedures of enforcement of Ukrainian court decisions in these countries, as well as to raise the issue of the possible application of these procedures in the relevant legislation of Ukraine and to provide material for further research and analysis of these options.
本文对法国、联合王国、白俄罗斯、哈萨克斯坦、波罗的海国家等法系不同的国家和司法管辖区执行程序的特点进行了简要的比较分析,并对其执行机构的组织结构进行了研究。本文还分析了欧盟国家在民商事案件中适用于执行法院和其他当局裁决的各种程序,包括欧洲执行令、欧洲支付令、欧洲小额索赔程序,以及《布鲁塞尔1号法规》下的程序。作者的目的是审议在这些国家执行乌克兰法院判决的程序,并提出在乌克兰有关立法中可能适用这些程序的问题,并为进一步研究和分析这些备选办法提供材料。
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引用次数: 0
Fast-Track Legislative Procedure During the COVID–19 Pandemic in Slovak Parliamentarism 斯洛伐克议会新冠肺炎疫情期间的快速立法程序
Q3 Social Sciences Pub Date : 2022-12-13 DOI: 10.12775/clr.2022.010
Miroslav Čellár
The Covid–19 pandemic has fundamentally changed the way we live and work. Even today, although the pandemic seems to be over, our lives are not the same as before. This has also had an impact on the functioning of constitutional bodies. We are of the opinion that adherence to the principles of democracy and the rule of law is particularly important to ensure the stability of the system in exceptional situations, such as in the case of the Covid–19 pandemic. The institution of fast-track legislative procedure (FTP) is an exceptional instrument for dealing with exceptional situations. Its purpose is to enable the Government and Parliament to take quick decisions. However, it must not be abused as this may lead to the violation of a considerable number of constitutional rules and principles. A number of tools can be used to defend against such action, such as Parliament’s rejection of the Government’s FTP proposal, the President’s intervention through his relative veto power, but above all, the Constitutional Court’s decision that a law is incompatible with the Constitution because of a breach of the rules of the legislative process.
新冠肺炎-19大流行从根本上改变了我们的生活和工作方式。即使在今天,尽管疫情似乎已经结束,但我们的生活与以前不同了。这也对宪法机构的运作产生了影响。我们认为,在特殊情况下,如在新冠肺炎-19大流行的情况下,坚持民主和法治原则对于确保该系统的稳定尤为重要。快速立法程序制度是处理特殊情况的一个特殊工具。其目的是使政府和议会能够迅速作出决定。然而,它决不能被滥用,因为这可能导致违反相当多的宪法规则和原则。可以使用一些工具来防范这种行动,例如议会拒绝政府的FTP提案,总统通过其相对否决权进行干预,但最重要的是,宪法法院裁定一项法律因违反立法程序规则而与宪法不符。
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引用次数: 0
Growing Convergence, Continuing Divergence: Comparative Remarks on the American and European Private International Law of Torts 趋同与分化:欧美国际侵权私法比较述评
Q3 Social Sciences Pub Date : 2022-12-13 DOI: 10.12775/clr.2022.007
Ekin Korkmaz
The Restatement Second and Rome II are representatives of two different legal cultures. While Rome II, as the representative of the EU private international law of torts, appears in a formalist way to achieve ‘private international law/conflicts justice’, the American Restatement Second, which adopts an eclectic system of various approaches, appears as a ‘result-oriented’ legal instrument with the underlying idea of achieving ‘substantive justice’. Although these systems have mainly preserved their unique characteristics, they have converged with each other over time. New approaches on both sides of the Atlantic indirectly support this convergence. This article identifies and critically evaluates the main convergent and divergent features of the EU and the US private international laws of torts comprehensively in line with the primary legal sources of information and practice.
《重述二》和《罗马二》是两种不同法律文化的代表。以欧盟国际侵权私法为代表的《罗马II》以形式主义的方式出现,以实现“国际私法/冲突正义”;而美国的《重述II》则以“结果导向”的法律文书的形式出现,其基本理念是实现“实体正义”。虽然这些系统主要保留了其独特的特征,但随着时间的推移,它们已经相互融合。大西洋两岸的新做法间接地支持了这种趋同。本文结合主要的法律信息来源和实践,对欧盟和美国的侵权国际私法的主要趋同和分歧特征进行了识别和批判性评价。
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引用次数: 0
Climate Change Litigation: Chronicles from the Global South. A Comparative Study 气候变化诉讼:全球南方编年史。比较研究
Q3 Social Sciences Pub Date : 2022-12-13 DOI: 10.12775/clr.2022.006
Sudha Kavuri, A. Ramanathan
The battles against climate change are being fought at the international level; on the domestic front; on the streets and in the courts. Climate change litigation is one such effort. The global expansion in climate litigation gives substance to claims of a transnational climate justice movement that casts courts as important players in shaping multilevel climate governance. Climate change litigants, lawyers, and judges of one country are taking their cue from their counterparts in other countries. However, only the efforts of the Global North have received prominence. The rest of the world is slated to be sleeping silently. The authors aim to de-bunk this myth. In doing so, the authors endeavour to highlight important contributions by the Courts in the Global South in furthering the jurisprudence of climate change litigation.
应对气候变化的斗争正在国际层面进行;在国内方面;在街上和法庭上。气候变化诉讼就是这样一项努力。气候诉讼的全球扩张为跨国气候正义运动的主张提供了实质内容,该运动将法院视为塑造多层次气候治理的重要参与者。一个国家的气候变化诉讼当事人、律师和法官正在借鉴其他国家的同行。然而,只有全球北方的努力受到重视。世界其他地方注定要安静地睡觉。作者的目的是揭穿这个神话。在这样做的过程中,作者们努力强调全球南方法院在推进气候变化诉讼判例方面的重要贡献。
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引用次数: 0
Issues on Water Privatization Under New Regulation: Evidence in Indonesia 新法规下的水务私有化问题:印尼的证据
Q3 Social Sciences Pub Date : 2022-12-13 DOI: 10.12775/clr.2022.011
S. Hermawan, Supid Arso Hananto
Water plays a vital role in every human life, so the availability and sustainability of water resources need to be carefully regulated. This article attempts to analyse water governance in Indonesia under the new water resources regulation, mainly the issue of water privatization. This article is classified as normative legal research. This article shows that even though the State gives the water privatization licence to the private sector as the last priority, it seems that the Indonesian people will still encounter the same problem in the coming year. This article argues that the issue of distribution of water justice, water access, and violations of the water right related to water utilization on a large scale are challenges for the Indonesian government to resolve.
水在每个人的生活中都发挥着至关重要的作用,因此需要仔细监管水资源的可用性和可持续性。本文试图分析印尼在新的水资源法规下的水治理,主要是水资源私有化问题。本文属于规范性法律研究。这篇文章表明,尽管国家将水私有化许可证作为最后的优先事项给予私营部门,但印度尼西亚人民在未来一年似乎仍将遇到同样的问题。本文认为,水正义的分配、水的获取以及与水利用相关的大规模侵犯水权问题是印尼政府需要解决的挑战。
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引用次数: 0
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Comparative Law Review
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