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Europeanization by European Parliament Political Groups: The Case of Latvia 2004-2019 欧洲议会政治团体的欧洲化:以拉脱维亚为例2004-2019
Q3 Social Sciences Pub Date : 2020-12-01 DOI: 10.2478/bjlp-2020-0012
Māris Andžāns, K. Bukovskis, Andris Sprūds
Abstract This article assesses the top-down Europeanization of national political parties by the political groups of the European Parliament. Based on the premise that the national political parties alter their agendas and argumentation because of ties to their respective European Parliament political groups, the paper presents a case study of Latvia in the period from 2004 to 2019. The analysis focuses on the agendas of three political parties whose continuity can be clearly traced during the fifteen years – the “New Unity”, the “National Alliance” and the “Latvian Russian Union”. It concludes that the small number of members of the European Parliament elected from Latvia, migration of individual politicians from party to party, and low durability of Latvian parties themselves has limited the sustainability of Europeanization and impeded downloading of EU topics and principles to the national party level. Meanwhile, party programs of all three observed parties have Europeanized since 2004 in terms of the number and depth of the EU issues addressed.
摘要本文评估了欧洲议会政治团体自上而下对国家政党的欧洲化。基于国家政党因与各自欧洲议会政治团体的关系而改变议程和辩论的前提,本文对2004年至2019年拉脱维亚进行了案例研究。分析的重点是“新统一”、“民族联盟”和“拉脱维亚-俄罗斯联盟”三个政党的议程,这三个政党在十五年中的连续性可以清楚地追溯。报告得出的结论是,从拉脱维亚选出的欧洲议会议员人数少,个别政客从一个政党迁移到另一个政党,拉脱维亚政党本身的持久性低,限制了欧洲化的可持续性,并阻碍了将欧盟议题和原则下载到国家政党层面。与此同时,自2004年以来,就欧盟问题的数量和深度而言,所有三个观察到的政党的政党计划都已欧洲化。
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引用次数: 1
The Role of EU Principles in Criminal Law: is the Principle of Direct Effect Applicable? 欧盟原则在刑法中的作用:直接效力原则是否适用?
Q3 Social Sciences Pub Date : 2020-12-01 DOI: 10.2478/bjlp-2020-0011
Edita Gruodytė, S. Milčiuvienė, Neringa Palionienė
Abstract With the enactment of the Lisbon Treaty, EU law gained supremacy over national law in ten areas of criminal law (with the possibility of extension in the future) treated as particularly serious crimes with a cross-border dimension and the right to enact directives. The question arises if and when direct effect is possible in criminal law, taking account of developments and applications of this principle in other areas of EU law. To answer this question, the following tasks are necessary: (1) to discuss the role of principles in criminal law, (2) to define the principle of direct effect through the academic literature and the jurisprudence of the CJEU, (3) to discuss whether directives could have direct effect in criminal law, and (4) to analyze the EU’s impact on Lithuanian national criminal law through an analysis of the jurisprudence of the Supreme Court of Lithuania.
随着《里斯本条约》的颁布,欧盟法在刑法的十个领域(未来有可能扩展)获得了超越国内法的优势,这些领域被视为具有跨境维度的特别严重犯罪,并有权制定指令。考虑到这一原则在欧盟法律其他领域的发展和应用,在刑法中是否以及何时可能产生直接影响的问题就出现了。要回答这个问题,有必要完成以下任务:(1)讨论原则在刑法中的作用;(2)通过学术文献和欧洲法院的判例对直接效力原则进行界定;(3)讨论指令是否可以在刑法中产生直接效力;(4)通过立陶宛最高法院的判例分析欧盟对立陶宛国家刑法的影响。
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引用次数: 1
Party Autonomy in the Context of Jurisdictional and Choice of Law Rules of Matrimonial Property Regulation 婚姻财产规制的管辖与法律规则选择语境下的当事人自治
Q3 Social Sciences Pub Date : 2020-12-01 DOI: 10.2478/bjlp-2020-0014
A. Limantė, Neža Pogorelčnik Vogrinc
Abstract In 2019, the EU Member States started applying the Matrimonial Property Regulation, which concerns the property regimes of international marriages. This regulation is aimed at helping couples manage their property and divide it in case of divorce or the death of one spouse. One of the main features of this regulation is its openness to the parties’ choice. The parties are enabled – in cases foreseen in the regulation – to grant jurisdiction to the court of a Member State of their choice, as well as to choose the law applicable to their matrimonial property regime. Since this regulation is new and the track record of its application is rather short, the limits of party autonomy allowed under the regulation and its advantages still involve a high degree of uncertainty. This article provides an in-depth analysis of party autonomy as provided for in the Matrimonial Property Regulation. In addition, it scrutinises the issue of party autonomy in the Succession Regulation, which often directly interacts with the Matrimonial Property Regulation.
2019年,欧盟成员国开始实施《婚姻财产条例》,该条例涉及国际婚姻的财产制度。这一规定旨在帮助夫妻管理财产,并在离婚或配偶一方死亡的情况下分割财产。这一规定的主要特点之一是其对当事人选择的开放性。在条例所预见的情况下,当事各方可将管辖权授予其选择的一个会员国的法院,并可选择适用于其婚姻财产制度的法律。由于这一规定是新的,其适用的记录相当短,因此该规定所允许的当事人自治的限制及其优势仍然涉及高度的不确定性。本文对《婚姻财产条例》中关于当事人自治的规定进行了深入的分析。此外,本文还考察了《继承条例》中的当事人自治问题,这一问题往往与《婚姻财产条例》直接互动。
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引用次数: 0
Arbitration Agreements and Protection of the Right to a Fair Trial 仲裁协议与公平审判权的保护
Q3 Social Sciences Pub Date : 2020-12-01 DOI: 10.2478/bjlp-2020-0015
Dalia Višinskytė, Remigijus Jokubauskas, Mykolas Kirkutis
Abstract Arbitration is a dispute settlement mechanism based on an agreement of the parties. Party autonomy to conclude an arbitration agreement is well established and recognized by the UNCITRAL Model Law on Arbitration and various national laws. However, party autonomy to conclude an arbitration agreement raises certain challenges for protection of human rights. One of them is how an arbitration agreement is compatible with Article 6 of the European Convention on Human Rights, which establishes the right to a fair trial before the state court. Conclusion of an arbitration agreement means that the parties waive their right to submit the dispute to the state court and instead create biding jurisdiction of arbitration court. This waiver of the right to a fair trial before the state court raises questions as to what extent the procedural guarantees of the right to a fair trial are applicable in arbitration court. What are the requirements for such a waiver of the right to a fair trial before the state courts?
仲裁是一种基于当事人协议的争端解决机制。《贸易法委员会仲裁示范法》和各国国内法明确规定并承认当事方订立仲裁协议的自主权。然而,当事人订立仲裁协议的自主权对人权保护提出了一定的挑战。其中之一是仲裁协议如何与《欧洲人权公约》第6条相一致,该公约规定了在国家法院获得公平审判的权利。仲裁协议的签订意味着当事人放弃将争议提交国家法院的权利,而设立仲裁法院的管辖。这种在州法院接受公平审判的权利的放弃提出了一个问题,即公平审判权利的程序保障在多大程度上适用于仲裁法院。放弃在州法院接受公平审判的权利有什么要求?
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引用次数: 0
Balancing Personal Data Protection with Other Human Rights and Public Interest: Between Theory and Practice 平衡个人资料保护与其他人权及公共利益:理论与实践之间
Q3 Social Sciences Pub Date : 2020-06-01 DOI: 10.2478/bjlp-2020-0006
V. Justickis
Abstract The role of balancing in the development and application of European data protection is enormous. European courts widely use it; it is the basis for harmonization of pan-European and national laws, plays a crucial role in everyday data protection. Therefore, the correctness of a huge number of critical decisions in the EU depends on the perfection of the balancing method. However, the real ability of the balancing method to cope with this mission has been subjected to intense criticism in the scientific literature. This criticism has highlighted its imperfections and casts doubt on its suitability to optimize the relation between competing rights. Paradoxically, the everyday practice of balancing tends to ignore this criticism. The limitations of the balancing method are typically not discussed and are not taken into account when considering legal cases and solving practical issues. Thus, it is tacitly assumed that the shortcomings and limitations of the balancing method, which the criticism points out, are irrelevant when making real-life decisions. This article discusses the scope of this phenomenon, its manifestations, and its impact on the quality of data protection decisions based on the balancing method:sub-optimality of these decisions, their opacity, public dissatisfaction with the legal regulation, its instability and low authority The ways of bridging the gap between the practice of balancing and science and broader consideration by the practice of the shortcomings of the balancing method identified during scientific discussions are considered.
在欧洲数据保护的发展和应用中,平衡的作用是巨大的。欧洲法院广泛使用它;它是协调泛欧和各国法律的基础,在日常数据保护中起着至关重要的作用。因此,欧盟大量关键决策的正确性取决于平衡方法的完善。然而,平衡方法处理这一任务的真正能力在科学文献中受到了强烈的批评。这种批评凸显了其不完善之处,并对其优化竞权关系的适用性提出了质疑。矛盾的是,平衡的日常实践往往会忽略这种批评。在考虑法律案件和解决实际问题时,通常不会讨论和考虑平衡方法的局限性。因此,人们默认地认为,批评指出的平衡方法的缺点和局限性与现实生活中的决策无关。本文讨论了这一现象的范围、表现形式及其对基于平衡方法的数据保护决策质量的影响:这些决策的次优性、不透明性、公众对法律监管的不满、在科学讨论中发现的平衡方法的缺点,考虑了弥合平衡实践与科学之间的差距和更广泛考虑的方法。
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引用次数: 0
The Trouble with “Gender” in Latvia: Europeanisation Through the Prism of the Istanbul Convention 拉脱维亚的“性别”问题:伊斯坦布尔公约棱镜下的欧洲化
Q3 Social Sciences Pub Date : 2020-06-01 DOI: 10.2478/bjlp-2020-0005
Elizabete Vizgunova, Elīna Graudiņa
Abstract The article analyses the dynamics of Europeanisation revolving around the ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) in Latvia. Whereas the document has not yet been made a part of EU acquis communautaire, the EU has committed to applying the norms enshrined in the Convention by any means, not least through the EU Gender Equality Strategy 2020-2025. The discussion on the repercussions of the implementation of the Istanbul Convention in Latvia’s legislation has occupied a noteworthy place in the discussions of the national parliament of Latvia (Saeima) since 2016. The article first uses critical frame analysis and defines the most important issue frames, document frames and metaframes that are employed by different political parties/politicians and Ministries/Ministers when talking about the Istanbul Convention to promote or refuse the ratification of the document. The article shows how the camps for and against the ratification draw on different and often opposing issues, documents, and meta-frames to substantiate their arguments. Next the article applies two models of Europeanisation: the external incentives model and the social learning model. The article concludes that the social learning model is better positioned to explain the non-ratification of the Convention, mostly due to exclusive national identity and the lack of resonance of the Convention in Latvia. Whereas some liberal-centre political parties are framing the ratification of the Istanbul Convention as aligned with Latvia’s commitment to European values, the framing by national-conservative players which argues that the Istanbul Convention is not in line with Christian values, has borne more fruit.
摘要本文分析了围绕拉脱维亚批准《欧洲委员会防止和打击暴力侵害妇女和家庭暴力公约》(《伊斯坦布尔公约》)而产生的欧洲化动态。尽管该文件尚未成为欧盟共同体法律的一部分,但欧盟已承诺以任何方式应用《公约》所载的规范,尤其是通过《2020-2025年欧盟性别平等战略》。自2016年以来,关于在拉脱维亚立法中实施《伊斯坦布尔公约》的影响的讨论在拉脱维亚国民议会的讨论中占据了值得注意的位置。文章首先使用批判性框架分析,定义了不同政党/政治家和部委/部长在谈论《伊斯坦布尔公约》时为促进或拒绝批准该文件而使用的最重要的问题框架、文件框架和元框架。这篇文章展示了支持和反对批准的阵营如何利用不同的、往往是对立的问题、文件和元框架来证实他们的论点。接下来,本文应用了两种欧洲化模式:外部激励模式和社会学习模式。文章的结论是,社会学习模式更适合解释不批准《公约》的原因,这主要是因为拉脱维亚具有排他性的民族特征和缺乏对《公约》产生共鸣。尽管一些自由派中间派政党将批准《伊斯坦布尔公约》视为与拉脱维亚对欧洲价值观的承诺相一致,但国家保守派人士认为《伊斯坦布尔公约”不符合基督教价值观的框架取得了更多成果。
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引用次数: 0
Hercules in the Colombian Constitutional Court 哥伦比亚宪法法院的大力神
Q3 Social Sciences Pub Date : 2020-06-01 DOI: 10.2478/bjlp-2020-0001
I. Vallejo, C. González
Abstract This paper explores how the Colombian Constitutional Court has used the legal and political philosophy of Ronald Dworkin to show that the use of the concepts of rights as trump cards, individual autonomy, and state neutrality, have configured the reception of egalitarian liberalism. This conclusion is reached by means of an analysis of the meaning and use of these concepts in certain judicial decisions and of personal interviews with certain head justices and law clerks of said Court, which also made it possible to frame this question within the larger issue of the relationship of philosophy to the decisions of the judges.
摘要本文探讨了哥伦比亚宪法法院如何利用罗纳德·德沃金的法律和政治哲学来表明,使用权利作为王牌、个人自治和国家中立的概念,配置了对平等自由主义的接受。这一结论是通过分析这些概念在某些司法裁决中的含义和使用,以及对该法院某些首席法官和书记员的个人采访得出的,这也使我们有可能将这个问题纳入哲学与法官裁决关系这一更大的问题中。
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引用次数: 0
The Conceptualization of Energy Justice: The EU Sphere 能源正义的概念化:欧盟范围
Q3 Social Sciences Pub Date : 2020-06-01 DOI: 10.2478/bjlp-2020-0007
Julius Paškevičius
Abstract The regulation of the energy sector in the EU adresses different challenges in pursuance of ensuring the functioning of the energy system. One of the most pressing current energy issues in the EU is household access to energy services, which is acknowledged as social justice concern. Provided that access to universal service in the EU is recognised as a right of households, the article aims to introduce the advanced concept of energy justice desiged for the investigation of households’ ability to access sufficient energy service in the EU. The article is organized in three parts. The first part specifies the roots of energy justice. The second part assesses whether the constituent elements of energy justice comply with EU fuonding values. Lastly, the more comprehensive concept of energy justice is presented with underlying rationale.
摘要欧盟能源部门的监管在确保能源系统运行的过程中面临着不同的挑战。欧盟当前最紧迫的能源问题之一是家庭获得能源服务,这被公认为社会正义问题。如果在欧盟获得普遍服务是家庭的一项权利,本文旨在引入先进的能源正义概念,用于调查欧盟家庭获得充足能源服务的能力。这篇文章分为三个部分。第一部分论述了能源公平的根源。第二部分评估了能源正义的构成要素是否符合欧盟的价值观。最后,提出了更全面的能源正义概念,并提出了其基本原理。
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引用次数: 0
Unequal Contributions: Problems within the Division of Shares in Joint Community Property 分摊不均:夫妻共同财产分配中的问题
Q3 Social Sciences Pub Date : 2020-06-01 DOI: 10.2478/bjlp-2020-0002
J. Grigiene, Paulius Čerka, Milda Štuikytė-Skužinskienė
Abstract Marriage influences the economic rights of spouses when joint community property is created. When a marriage is dissolved, joint community property has to be divided. Each country sets different rules about how joint community property should be divided between spouses. Lithuania has chosen the presumption of equal shares in joint community property. Courts may depart from equal shares of spouses because of such important circumstances as interests of children, health state of a spouse, and personal income used to increase joint community property. However, courts have never departed from the equal shares principle due to differing contributions by spouses to matrimonial property. Meanwhile, other countries take into account contribution of spouses in order to divide property fairly and to protect the interests of the spouse who has contributed significantly to joint property, if the marriage was brief and the marriage produced no children. The impossibility to depart from equal shares to different contribution of spouses could increase the misuse of the institution of marriage and the unjust division of joint community property when the spouse who has not contributed to joint community property receives an equal share of it.
摘要当共同财产产生时,婚姻会影响配偶的经济权利。当婚姻破裂时,共同财产必须分割。每个国家都对配偶之间共同财产的分配方式制定了不同的规则。立陶宛选择了在共同财产中平等份额的推定。由于子女的利益、配偶的健康状况以及用于增加共同财产的个人收入等重要情况,法院可能会偏离配偶的平等份额。然而,法院从未因配偶对婚姻财产的贡献不同而偏离平等份额原则。同时,其他国家考虑到配偶的贡献,以便公平分配财产,并保护对共同财产做出重大贡献的配偶的利益,如果婚姻短暂且婚姻没有生育子女。不可能从配偶的平等份额转向不同的贡献,这可能会增加对婚姻制度的滥用,以及在没有贡献共同财产的配偶获得平等份额的情况下对共同财产的不公正分割。
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引用次数: 0
The Future of Legal Education: Do Law Schools Have the Right to Be Conservative? 法律教育的未来:法学院有保守的权利吗?
Q3 Social Sciences Pub Date : 2020-06-01 DOI: 10.2478/bjlp-2020-0008
Aušrinė Pasvenskienė, Paulius Astromskis
Abstract This article explores how emerging technologies should shape legal studies, recognizing that the new technological era requires a new generation of tech-savvy lawyers who possess specific technology-related skills and knowledge. The article builds on analysis of the future of work through the lens of the International Labor Organization Centenary Declaration, followed by an analysis of the right to education, leading to the formation of a theoretical justification of the legal duty to adapt the legal education curriculum to a technology-driven future. This article exposes the existing state of the legal education curriculum with a systematic analysis of the existing Law & Tech master’s programs at leading universities worldwide. This research demonstrates that relatively few (9.8%) leading world universities offer specialized Law & Tech master’s programs. This clear underdevelopment of the Law & Tech curriculum suggests that deeply embedded conservatism in legal education might be violating the rights of future lawyers – the right to work and the right to education, in particular.
摘要本文探讨了新兴技术应该如何影响法律研究,认识到新技术时代需要新一代精通技术的律师,他们拥有特定的技术相关技能和知识。本文以通过国际劳工组织《百年宣言》对未来工作的分析为基础,然后对受教育权进行分析,从而形成了使法律教育课程适应技术驱动的未来的法律义务的理论依据。本文通过对世界领先大学现有法律与技术硕士课程的系统分析,揭示了法律教育课程的现状。这项研究表明,相对较少(9.8%)的世界领先大学提供专门的法律与技术硕士课程。法律与技术课程的这种明显的不发达表明,法律教育中根深蒂固的保守主义可能侵犯了未来律师的权利,尤其是工作权和受教育权。
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引用次数: 1
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Baltic Journal of Law and Politics
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