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Civil law and the role of the State 民法和国家的作用
Q4 Social Sciences Pub Date : 2021-10-19 DOI: 10.1556/2052.2021.00312
Attila Harmathy
The profound changes in both everyday life and the legal system over the last hundred years have transformed civil law as well. While the notion that civil law concerns relationships of private persons still prevails, the traditional public law–civil law division now seems questionable. This paper points out some of the key changes in civil law within the framework of the transformation of the legal system as a whole, and seeks to outline a different approach that may help better to understand the present situation.
近百年来,日常生活和法律制度的深刻变化也改变了民法。虽然民法涉及私人关系的概念仍然盛行,但传统的公法-民法划分现在似乎值得怀疑。本文指出了在整个法律体系转型的框架内民法的一些关键变化,并试图概述一种可能有助于更好地理解现状的不同方法。
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引用次数: 0
Prerequisites for the effective fight against hate crimes 有效打击仇恨犯罪的先决条件
Q4 Social Sciences Pub Date : 2021-10-19 DOI: 10.1556/2052.2020.00340
Petra Bárd
Hate crimes poison societies by threatening individual rights, human dignity and equality. They effect private lives, or even victims’ life and limb. Due to their ripple effect, they terrify whole communities, reinforce tensions between social groups, ultimately jeopardising peaceful coexistence. No society is immune from the signs of hatred, but whether they get tamed or whether prejudices are deepened, depends on the social measures that are applied vis-à-vis the phenomenon. The state’s reaction creates norms and will informs society about the current acceptable standards. European expectations help forming these. Standards developed by the European Court of Human Rights include the obligations to ensure that hate against social groups as a motivation is considered an aggravating circumstance or leads to penalty enhancement. States must also ensure that national investigation authorities show special vigilance to explore and unmask the bias motives behind hate crimes. Such European expectations still leave a wide room of manoeuvre to respond to hate crimes efficiently and dissuasively. But irrespectively of the national codification method, for legal provisions to reach the desired outcome, certain social preconditions must be met. For hate crime laws or provisions to work, states must reach a certain level of maturity from the viewpoint of democracy, fundamental rights in general and the rule of law, where guaranteeing judicial independence is an absolute minimum.
仇恨犯罪通过威胁个人权利、人的尊严和平等来毒害社会。它们影响私人生活,甚至受害者的生命和肢体。由于其连锁反应,它们吓坏了整个社区,加剧了社会群体之间的紧张关系,最终危及和平共处。没有一个社会能够免受仇恨的迹象的影响,但仇恨是否得到驯服或偏见是否加深,取决于针对这一现象采取的社会措施。国家的反应创造了规范,并将向社会通报当前可接受的标准。欧洲的期望有助于形成这些。欧洲人权法院制定的标准包括有义务确保将针对社会群体的仇恨作为动机视为加重处罚的情节或导致加重处罚。各国还必须确保国家调查当局表现出特别警惕,以探索和揭露仇恨犯罪背后的偏见动机。欧洲的这种期望仍然为有效和劝阻性地应对仇恨犯罪留下了广阔的回旋余地。但是,无论国家编纂方法如何,法律条款要达到预期的结果,都必须满足某些社会先决条件。为了使仇恨犯罪法律或条款发挥作用,各州必须从民主、基本权利和法治的角度达到一定程度的成熟,在法治中,保障司法独立是绝对最低的要求。
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引用次数: 0
Qualified laws as actors of the separation of powers 作为三权分立行为者的合格法律
Q4 Social Sciences Pub Date : 2021-09-01 DOI: 10.1556/2052.2021.00266
B. Szentgáli-Tóth
Over the last few decades, several countries have entrenched a special subcategory of law, which is adopted by stricter procedural rules than the requirements of the ordinary legislative process. These laws are enacted by qualified majority, by the consent of the two chambers of the legislation, and are subject to mandatory constitutional review before their promulgation, or additional safeguards are implemented in the ordinary legislative process. It is beyond doubt that this legal instrument influences the prevalence of the separation of powers and the constitutional principle of democracy in a remarkable way; therefore, it might be an important tool for populist politicians to concrete their preferences for the long term. In this study, my aim is to conceptualize the most highly contested issues regarding the legal nature of qualified laws, and to provide a deeper understanding of the interdependence between qualified laws and the separation of powers. This analysis might also clarify how qualified laws may serve the ambitions of populist political groups in certain specific circumstances. My contribution provides general theoretic considerations, and does not outline the particular constitutional frameworks in detail. I would rather just use the specific examples to demonstrate how the mechanism of qualified law works in practice as an instrument of constitutional law.
在过去几十年中,一些国家确立了一个特殊的法律子类别,该类别的程序规则比普通立法程序的要求更严格。这些法律由合格的多数人在立法两院同意的情况下颁布,在颁布前必须接受强制性宪法审查,或者在普通立法程序中实施额外的保障措施。毫无疑问,这项法律文书以显著的方式影响了权力分立的普遍性和民主的宪法原则;因此,它可能是民粹主义政客长期具体化偏好的重要工具。在这项研究中,我的目的是将关于限定法律的法律性质的最具争议的问题概念化,并对限定法律和分权之间的相互依存关系提供更深入的理解。这一分析还可能澄清,在某些特定情况下,合格的法律如何为民粹主义政治团体的野心服务。我的贡献提供了一般的理论考虑,没有详细概述具体的宪法框架。我宁愿仅用具体的例子来证明合格法律机制作为宪法工具在实践中是如何运作的。
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引用次数: 0
The chances of restorative justice in hate crime cases 仇恨犯罪案件中恢复性司法的机会
Q4 Social Sciences Pub Date : 2021-08-31 DOI: 10.1556/2052.2020.00345
Veronika Szontagh
This paper discusses whether the methods of restorative justice (RJ), broadly interpreted as alternatives to criminal proceedings and sanctions, are applicable to hate crimes. It builds on the premises that RJ methods are appropriate tools to deal with hate crimes and conflicts that arise from them, as there are social conflicts behind these actions that can be resolved by a sensitive and empathetic approach that focuses on restoration. However, there are dilemmas and factors where caution and an in-depth reflection should be observed to understand how these techniques can work well without further harming either party.
本文讨论了被广泛解释为刑事诉讼和制裁的替代方法的恢复性司法方法是否适用于仇恨犯罪。它建立在这样一个前提之上,即RJ方法是处理仇恨犯罪及其引发的冲突的适当工具,因为这些行为背后存在社会冲突,可以通过专注于恢复的敏感和同理心的方法来解决。然而,也存在一些困境和因素,需要谨慎和深入反思,以了解这些技术如何在不进一步伤害任何一方的情况下发挥良好作用。
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引用次数: 0
The post-2010 ‘Democratic Rule of Law’ practice of the Hungarian Constitutional Court under a rule by law governance 匈牙利宪法法院在法治治理下的2010年后“民主法治”实践
Q4 Social Sciences Pub Date : 2021-08-18 DOI: 10.1556/2052.2020.00267
Nóra Chronowski
The paper focuses on the democratic rule of law principle as it appeared in the practice of the Hungarian Constitutional Court under the 1989 Constitution and the 2012 Fundamental Law. The rule of law doctrine had a paramount role in the argumentation of the Court in the 1990s as a normative fact and a programme of the Hungarian state. Under the Fundamental Law introduced in 2012, however, it has been somewhat relegated to the background in case law. The study first recalls the main achievements and characteristics of the democratic rule of law state interpretations of the Constitutional Court and then focuses on developments since the introduction of the Fundamental Law. On the one hand, it outlines the constitutional and institutional capacity of the court regarding the protection of the rule of law principle. On the other hand, it reveals the characteristics of the post-FL interpretation through case studies in the field of legal certainty and judicial independence, both of which were representative elements of the pre-2010 constitutional practice from the point of view of the democratic rule of law state doctrine.
本文侧重于匈牙利宪法法院根据1989年《宪法》和2012年《基本法》在实践中出现的民主法治原则。法治原则作为匈牙利国家的一个规范性事实和方案,在1990年代法院的辩论中发挥了至关重要的作用。然而,根据2012年出台的《基本法》,它在某种程度上被置于判例法的背景之下。本研究首先回顾了宪法法院民主法治国家解释的主要成就和特点,然后重点介绍了《基本法》出台以来的发展情况。一方面,它概述了法院在保护法治原则方面的宪法和体制能力。另一方面,它通过法律确定性和司法独立性领域的案例研究揭示了后FL解释的特点,这两个领域从民主法治国家主义的角度来看都是2010年前宪法实践的代表性元素。
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引用次数: 5
Combating the constitutional crisis in Poland – Can the European Union provide an effective remedy? 对抗波兰宪法危机——欧盟能提供有效的补救措施吗?
Q4 Social Sciences Pub Date : 2021-08-14 DOI: 10.1556/2052.2020.00269
Monika Kawczyńska
Recent constitutional reforms in Poland have demonstrated a lack of respect for the rule of law and for the fundamental values which form the foundations of the EU legal order. The Polish authorities have substantially deviated from principles that the country has accepted as a part of the Copenhagen criteria. The aim of the article is to analyse the mechanisms and procedures applied by the EU institutions to address the systemic threats to the rule of law in Poland. The main focus of the assessment is on the effectiveness of the measure and its potential for a proper solution to the problem. The response provided by the EU demonstrate that there has been a shift from a political to judicial enforcement of values. The article argues that the remedies that were deemed to be the least suitable to address the systemic deficiencies in the rule of law – an infringement action and a preliminary ruling procedure – proved to be the most effective remedy to defend independence of the Polish judiciary. Unexpectedly, the most efficient institution to ensure the respect for values enshrined in Article 2 TEU in Poland proved to be the CJEU, providing extensive interpretation of Article 19 (1) TEU and Article 47 of the Charter. Nevertheless the values are still much more difficult to enforce than the law. While the most serious infringements have been reversed, this has not prevented the Polish authorities from further violating the rule of law.
波兰最近的宪法改革表明,对法治和构成欧盟法律秩序基础的基本价值观缺乏尊重。波兰当局严重偏离了该国已接受的作为哥本哈根标准一部分的原则。本文的目的是分析欧盟机构为应对波兰法治面临的系统性威胁而采用的机制和程序。评估的主要重点是该措施的有效性及其适当解决问题的潜力。欧盟提供的回应表明,价值观已经从政治执行转向司法执行。文章认为,被认为最不适合解决法治系统性缺陷的补救措施——侵权诉讼和初步裁决程序——被证明是捍卫波兰司法独立性的最有效补救措施。出乎意料的是,事实证明,在波兰,确保尊重第2条TEU所载价值观的最有效机构是CJEU,它对《宪章》第19(1)条TEU和第47条进行了广泛的解释。尽管如此,这些价值观仍然比法律更难执行。虽然最严重的侵权行为已经得到扭转,但这并没有阻止波兰当局进一步违反法治。
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引用次数: 0
Anomalies in the application of law related to hate crimes 与仇恨犯罪有关的法律适用的异常情况
Q4 Social Sciences Pub Date : 2021-08-14 DOI: 10.1556/2052.2020.00344
Erik Uszkiewicz
The number of hate crime cases in certain countries that was brought to the authorities' attention and was included in the official statistics of countries and relevant international organizations could be negligibly low. However, alternative databases do not provide such a serene landscape as these data sets aim to provide a more credible picture of the real volume of hate crimes. The results of the victim surveys conducted amongst members of the potential victim groups can be even more shocking. Now it is obvious that only a small number of these crime cases is officially reported and behind the high latency, numerous personal and institutional causes can be identified, most notably in relation to victims and law enforcement authorities. The main objective of this literature review is to present these reasons and barriers that authorities are facing, difficulties of enforcement in individual cases and the significant structural problems in the application of law.
某些国家引起当局注意并被纳入国家和相关国际组织官方统计的仇恨犯罪案件数量可能低到可以忽略不计。然而,替代数据库并没有提供如此平静的景观,因为这些数据集旨在提供更可信的仇恨犯罪真实数量的图片。在潜在受害者群体成员中进行的受害者调查结果可能更令人震惊。现在很明显,这些犯罪案件中只有一小部分是官方报告的,在高延迟的背后,可以确定许多个人和机构原因,尤其是与受害者和执法当局有关的原因。本文献综述的主要目的是介绍当局面临的这些原因和障碍、个别案件中的执法困难以及法律适用中的重大结构性问题。
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引用次数: 0
Hate crimes and international institutions: A literature review 仇恨犯罪与国际制度:文献综述
Q4 Social Sciences Pub Date : 2021-08-14 DOI: 10.1556/2052.2020.00343
Eszter Kirs
The paper reflects on academic literature on the international normative and institutional framework related to hate crimes. Various theoretical and pragmatic issues have been discussed by academic authors, such as the challenges coming with the obligation of states to record hate crimes or to conduct efficient investigation, the limits of the potential impact of international review mechanisms, or the aims and content of resolutions adopted by international institutions and judgments delivered by the European Court of Human Rights. However, a wide range of practical and conceptual issues related to the existing international standards and the efficiency of international review mechanisms remain to be discussed in the academic sphere.
本文回顾了有关仇恨犯罪的国际规范和体制框架的学术文献。学术作者讨论了各种理论和实践问题,如国家记录仇恨犯罪或进行有效调查的义务所带来的挑战、国际审查机制潜在影响的局限性、,或国际机构通过的决议和欧洲人权法院作出的判决的目的和内容。然而,与现有国际标准和国际审查机制的效率有关的一系列实际和概念问题仍有待学术界讨论。
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引用次数: 1
High-impact hate speech by persons of authority: A lower threshold needed? 权威人士的高影响力仇恨言论:需要降低门槛吗?
Q4 Social Sciences Pub Date : 2021-07-29 DOI: 10.1556/2052.2020.00003
J. Bayer
This paper discusses a global trend in the approach to hate speech. It describes how the international human rights organisations are recently addressing the dynamics of hate speech and how academic thinking is stretching the framework of the justification of hate speech regulations. This work analyses the aspect of cause and effect in the light of the role of the speaker; examining the academic argument that content expressed by public figures of authority have a higher impact, in particular in the context of the digital media ecosystem, with a social media dominance.
本文讨论了仇恨言论处理方法的全球趋势。它描述了国际人权组织最近如何处理仇恨言论的动态,以及学术思想如何扩展仇恨言论法规的正当性框架。本文从说话人的角色出发,分析了其因果关系;审视权威公众人物表达的内容具有更高影响力的学术观点,特别是在社交媒体占主导地位的数字媒体生态系统背景下。
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引用次数: 3
The liability of the air carrier for damages and the state of health of the air passenger • 航空承运人对损害的赔偿责任和航空乘客的健康状况•
Q4 Social Sciences Pub Date : 2021-06-08 DOI: 10.1556/2052.2020.00002
A. Sipos
Viruses can be found everywhere, they are part of the real life of humanity. Air travel is the youngest form of geographical movement, which has become an attainable reality for everyone at the expense of extraordinarily huge efforts and sacrifices. The two realities collided at the end of 2019 and then on 11 March 2020 via the declaration of COVID-19 to be a world pandemic changing the world as known. This paper introduces these two realities and researches their legal relations.Primarily, this paper seeks answers to the question whether pursuant to the Montreal Convention (1999) regulating the liability of the air carrier for damages an event or occurrence deriving from the disease or state of health of the passenger taking place during the operations of embarkation or disembarkation or on board the aircraft is deemed to be an accident. What extent of liability does the state of health of the passenger impose on the contracting parties pursuant to the rules of the Convention and according to legal practice?An answer is provided by unfolding the conceptual elements of accident via legal cases. This introduces the significance of the internal regulations of the air carrier; the situation of passengers in need of special care; examines the existence of medical certificates and deals with the responsibility of the crew for the treatment of acute situations deriving from the state of health of the passenger (heart attack, thrombosis, virus infection etc.)The answer is logical. Pursuant to the Convention, the event or occurrence deriving from the state of health of the passenger does not qualify as accident, consequently, the air carrier shall not liable. However, if in the facts of the concrete case a cause and effect relationship exists between the occurrence of the accident and the negligent conduct of the air carrier, the liability of the air carrier for damages can be established.The study introduces the system of conditions of the liability for damages in full detail, and the causal link producing an accident. The author makes recommendations for and outlines solutions in awareness that despite all real efforts, mankind has not learnt the lesson that the virus is in a winning position.
病毒无处不在,它们是人类真实生活的一部分。航空旅行是最年轻的地理运动形式,它已经成为每个人都能实现的现实,代价是付出巨大的努力和牺牲。这两种现实在2019年底和2020年3月11日发生了冲突,宣布新冠肺炎为改变世界的世界大流行。本文介绍了这两种现实,并对其法律关系进行了研究。本文件主要寻求以下问题的答案:根据《蒙特利尔公约》(1999年)关于航空承运人对损害赔偿责任的规定,由乘客在登机、下机或飞机上的疾病或健康状况引起的事件或事故是否被视为意外。根据《公约》规则和法律惯例,乘客的健康状况对缔约方规定了多大程度的赔偿责任?通过法律案例展开事故的概念要素,给出了答案。介绍了航空承运人内部规章制度的意义;需要特别照顾的乘客的情况;检查是否有医疗证明,并处理机组人员对乘客健康状况引起的急性情况(心脏病发作、血栓形成、病毒感染等)的治疗责任。答案是合乎逻辑的。根据《公约》,由乘客健康状况引起的事件不属于事故,因此,航空承运人不承担责任。但是,如果在具体案件的事实中,事故的发生与航空承运人的过失行为之间存在因果关系,则航空承运人的损害赔偿责任可以成立。本研究详细介绍了损害赔偿责任的条件体系,以及事故发生的因果关系。作者提出了建议并概述了解决方案,意识到尽管做出了所有真正的努力,人类还没有吸取病毒处于胜利地位的教训。
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引用次数: 1
期刊
Hungarian Journal of Legal Studies
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