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Strange bedfellows? The action for adultery and the South African Bill of Rights 奇怪的伙伴?通奸罪和南非人权法案
Q4 Social Sciences Pub Date : 2014-09-23 DOI: 10.1504/IJPL.2014.064925
A. Barratt
The action for adultery does not sit comfortably with the Bill of Rights in the South African Constitution, 1996. Historically, the adultery action was designed to protect the husband’s honour in the context of the European honour code. In a recent court judgement, Wiese v Moolman, the court attempted to update the remedy to conform to constitutional requirements, arguing that adultery is an infringement of inherent human dignity. This paper traces the history of the adultery remedy and its links to reflexive honour. It then examines whether the evolved action meets the requirements of the Constitution by focusing on the rights to privacy, freedom of intimate association, and human dignity as a personal autonomy right.
通奸罪与1996年《南非宪法》中的《权利法案》不符。从历史上看,通奸行为是为了保护欧洲荣誉法典中丈夫的荣誉而设计的。在最近的Wiese v Moolman一案中,法院试图更新补救措施以符合宪法要求,认为通奸是对人类固有尊严的侵犯。本文追溯了通奸补救的历史及其与自反性荣誉的联系。然后,通过关注隐私权、亲密结社自由和作为个人自主权的人的尊严,审查进化的行为是否符合宪法的要求。
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引用次数: 0
A two-pronged approach: analysis of leave arising from the contract of employment in South Africa 双管齐下的办法:分析南非雇用合同所产生的假期
Q4 Social Sciences Pub Date : 2014-07-02 DOI: 10.1504/IJPL.2014.063033
C. Tshoose, Themba Kunene
Employees generally look forward to their annual leave, and most take it when they can. However, some employees occasionally lose that right during a particular year. When they do so, they usually expect that their leave will accumulate and that, ultimately, they will either take a longer period of leave or claim cash in lieu of leave not taken, when they eventually resign or retire. Questions which then follow are whether and at what stage annual leave can be forfeited. Against this background, the purpose of this article is two-fold. Firstly, the article analyses the conflict that arises from statutory law and the contract of employment regarding the provision of leave. Secondly, the article examines the approach of the courts regarding the provision of leave. The article concludes by providing a solution which demystifies this conflict arising from statutory law and the contract of employment regarding the provision of leave.
员工通常都很期待自己的年假,而且大多数人都会尽可能地休年假。然而,有些员工偶尔会在某一年失去这项权利。当他们这样做的时候,他们通常期望他们的假期会累积起来,最终,当他们最终辞职或退休时,他们要么休更长时间的假,要么要求现金代替未休的假。接下来的问题是年假是否可以取消,以及在什么阶段取消。在这种背景下,本文的目的是双重的。本文首先分析了成文法与劳动合同中关于休假规定的冲突。其次,本文考察了法院在提供许可方面的做法。文章最后提供了一种解决办法,消除了关于提供休假的成文法和雇佣合同所产生的这种冲突。
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引用次数: 0
Financial contracts and financial crisis: the case of demand and term deposits 金融合约与金融危机:以活期存款和定期存款为例
Q4 Social Sciences Pub Date : 2014-07-02 DOI: 10.1504/IJPL.2014.062987
C. Păun, Vladimir Topan, R. Mușetescu
Financial crisis became one of the most debated subjects during the last few years. Succeeding more or less to identify its real causes, a lot of specialists proposed different solutions to this turmoil. This paper is focused on the discussion of the most important financial contracts used in banking sector: demand deposits and term deposits. Moreover, this paper will reveal why these contracts could be considered to be the source of financial crisis and why such instruments should be quickly adapted to the conditions of sound banking. As a case study, we proposed a comparative analysis of the provisions of these banking contracts used by three different Romanian banks. This reform of such banking contracts could induce more stability in the financial system and it is a sound solution to the current crisis.
在过去的几年里,金融危机成为最具争议的话题之一。许多专家或多或少地找到了危机的真正原因,并提出了不同的解决方案。本文主要讨论了银行部门中最重要的金融合同:活期存款和定期存款。此外,本文将揭示为什么这些合同可以被认为是金融危机的根源,以及为什么这些工具应该迅速适应健全银行的条件。作为一个案例研究,我们对三家不同的罗马尼亚银行使用的这些银行合同的条款进行了比较分析。这类银行合同的改革可能会促使金融体系更加稳定,也是解决当前危机的一种合理方案。
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引用次数: 1
Lights out for traditional bulbs: lobbyism and government intervention 传统灯泡熄灯:游说和政府干预
Q4 Social Sciences Pub Date : 2014-07-02 DOI: 10.1504/IJPL.2014.062986
Mikael Kevin Kierkegaard
On September 1, 2012, the final phase of the European legislation banning the incandescent light bulbs came into effect in the EU. However, the ban has encountered criticisms. Consumers have not internalised the benefits of replacing the classic bulbs. People opposed to the ban deplore government interference with free market. In dimming the classic light bulbs, the EU has been accused of keeping people in the dark during the consultation process and has not been forthright with the public and the Parliament concerning the validity of the data. One of the main questions this author wants to explore is the issue of whether the policy intervention has produced welfare benefits and innovation. Was the intervention justified? What type of discontinuance problems arose after the ban? These are questions that will be explored in this paper and are intended to understand the dynamic effects of policy intervention in energy efficiency.
2012年9月1日,欧盟禁止白炽灯泡立法的最后阶段在欧盟生效。然而,这项禁令遭到了批评。消费者还没有意识到更换传统灯泡的好处。反对该禁令的人谴责政府干预自由市场。在调暗传统灯泡的过程中,欧盟被指责在咨询过程中让人们处于黑暗之中,并且在数据的有效性方面对公众和议会没有直言不讳。笔者想探讨的一个主要问题是政策干预是否产生了福利效益和创新。干预是合理的吗?禁令后出现了哪些类型的中止问题?这些都是本文将探讨的问题,旨在了解政策干预对能源效率的动态影响。
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引用次数: 1
Do not rush the river: a Common Frame of Reference, the Restatements of the Law, and the Court of Justice of the European Union 不要急于求成:共同参照系、法律重述和欧盟法院
Q4 Social Sciences Pub Date : 2014-03-31 DOI: 10.1504/IJPL.2014.060085
Nabil Khabirpour
Whether and in what way European private law would benefit from the erection of a Common Frame of Reference has been an intensely debated topic. While much substantive analysis has been performed, too few comparative doctrinal arguments concerning the method and merit of harmonisation have thus far informed the debate. After a cursory examination of the status quo, the paper turns to the USA in order to glean learning experiences from the American private law story, with particular emphasis on the Restatements of the Law. The analysis reveals that European private law is still in a phase of organic development, and needs to remain therein a while longer; it argues that any thoughts of adopting the current Draft Common Frame of Reference would be premature; and it offers avenues of reform centred, among other things, around an increased assumption of responsibility on the part of the Court of Justice of the European Union.
欧洲私法是否以及以何种方式受益于共同参照系的建立一直是一个激烈争论的话题。虽然已经进行了许多实质性分析,但迄今为止,关于协调的方法和优点的比较理论论证太少了。在粗略考察了私法发展的现状之后,本文将目光转向美国,以期从美国私法发展的历史中汲取借鉴经验,并将重点放在《法重述》上。分析表明,欧洲私法仍处于有机发展阶段,并需要在此阶段保持较长时间;它认为,任何通过目前共同参照系草案的想法都为时过早;它提供了改革的途径,除其他外,以欧洲联盟法院增加承担责任为中心。
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引用次数: 0
Enforceability of alternative dispute resolution clauses: position in UK, USA and India 替代性争议解决条款的可执行性:英国、美国和印度的情况
Q4 Social Sciences Pub Date : 2014-03-31 DOI: 10.1504/IJPL.2014.060094
Nikhil Pareek
Times have drastically changed from a point in history when conventional judiciary viewed ADR as a threat to their existence to present period where ADR is viewed as an aid to existing legal system. However, with respect to non-binding form of ADR, there is till ambiguity prevailing which can be attributed to lack of legislative support and far from clear judicial approach. The article tries to analyse the judicial and legislative approach in enforcing such clauses in three common law jurisdictions, i.e., UK, USA and India. The article also delves into the landmark precedents dating more than half a century old which are still shaping the law makers of these respective countries. The article also explores the approach taken by the International Chamber of Commerce while dealing with ADR clauses as a separate clause or multi-tier dispute resolution clauses.
从历史上传统司法机构将ADR视为对其存在的威胁,到现在ADR被视为对现有法律制度的辅助,时代已经发生了巨大的变化。然而,对于无约束力的ADR形式,由于缺乏立法支持和司法途径的不明确,目前仍存在歧义。本文试图分析英国、美国和印度这三个英美法系国家执行此类条款的司法和立法途径。本文还深入探讨了半个多世纪前的具有里程碑意义的先例,这些先例至今仍在影响着这些国家的法律制定者。本文还探讨了国际商会在将ADR条款作为单独条款或多层争议解决条款处理时所采取的做法。
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引用次数: 0
The minority shareholder protection: the English rule of derivative action and Companies Act of Bangladesh 小股东保护:英国衍生诉讼规则与孟加拉公司法
Q4 Social Sciences Pub Date : 2014-03-31 DOI: 10.1504/IJPL.2014.060086
Kazi Mokhles Uddin Ahamed
The fundamental concept of the minority shareholder protection is the distinction between the personal rights of the shareholders and the rights of the company. A shareholder may have personal rights under an agreement to which he is a party in his personal capacity under the constitution of the company, may be protected by the course of personal action. However, if shareholder desires to enforce a right of the company not confer on him can only do so by means of the derivative claims. The most common form of derivative claim is the company’s property fraudulently misappropriate by the directors. The derivative claim is a claim brought by an individual shareholder in his own name, but on behalf of the company. The reason the claim takes this form is that the minority shareholder is not in a position to see the claim is brought in the name of the company itself to enforce the company’s rights. This paper examines the protection of the minority shareholders’ rights with reference to English rule of the derivative claim. This paper also concentrates on the current statutory position of Bangladesh in relation to minority shareholders’ protection and distinguishes it from the English rule.
中小股东保护的基本理念是区分股东个人权利与公司权利。股东可以根据公司章程以个人身份参与的协议享有个人权利,也可以受个人诉讼程序的保护。但是,如果股东希望执行公司未授予他的权利,则只能通过派生债权来实现。派生索赔最常见的形式是公司财产被董事欺诈性挪用。衍生债权是由个人股东以自己的名义,代表公司提出的债权。索赔采取这种形式的原因是,小股东无法看到索赔以公司本身的名义提出,以执行公司的权利。本文借鉴英国衍生请求权规则对我国中小股东权利的保护进行了探讨。本文还集中讨论了孟加拉国目前在保护少数股东方面的法定地位,并将其与英国规则进行了区分。
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引用次数: 0
White-collar attorney defence strategies: an empirical study of a national sample 白领律师辩护策略:一个国家样本的实证研究
Q4 Social Sciences Pub Date : 2014-03-31 DOI: 10.1504/IJPL.2014.060088
Petter Gottschalk
Every year, an average of 100 white-collar criminals is sentenced to prison in Norway. Based on newspaper reports and court documents, a database of more than 300 convicted criminals is applied in this research to answer the following research question: What links can be found from attorney defence strategies (substance defence, symbolic defence, and information control) to crime case characteristics (persons involved, money amount, and prison sentence)? A number of statistically significant relationships were identified: 1) substance defence varies positively with symbolic defence, positively with money amount in crime, and negatively with number of persons involved in crime; 2) information control varies negatively with money amount in crime and negatively with number of persons involved in crime; 3) symbolic defence varies positively with substance defence, negatively with information control, and positively with money amount in crime
在挪威,每年平均有100名白领罪犯被判入狱。基于报纸报道和法庭文件,本研究使用了一个包含300多名被定罪罪犯的数据库来回答以下研究问题:律师辩护策略(物质辩护、符号辩护和信息控制)与犯罪案件特征(涉案人员、金额和刑期)之间有什么联系?结果表明:物质防卫与象征性防卫呈正相关,与犯罪金额呈正相关,与犯罪人数呈负相关;2)信息控制与犯罪金额成负相关,与犯罪人数成负相关;(3)符号防卫与物质防卫成正相关,与信息控制成负相关,与犯罪金额成正相关
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引用次数: 0
The rise and fall of Egypt’s Code de Commerce: a critical examination of the purpose and content of Egypt’s commercial code after the establishment of the economic courts 埃及商法典的兴衰:对经济法庭建立后埃及商法典的目的和内容的批判性考察
Q4 Social Sciences Pub Date : 2014-03-31 DOI: 10.1504/IJPL.2014.060087
Moatasem El-Gheriani, M. Farag
The Egyptian Commercial Code (Code de Commerce) has historically been identified by the following three general characteristics: that it is part of private law; that it was an exceptional system which derived from the Droit Civil proper that governs ‘commercial’ activities; and that its scope of application is not always clear nor easily defined. The recent arrival of Law No. 120 of 2008, which established a new entity known as the ‘economic courts’, is beginning to threaten the very existence of the Code de Commerce and is changing our perspective of these three notions. This article attempts to illustrate how the economic courts system puts the final nail in the coffin of the commercial code and attempts to critically examine the benefits and disbenefits which these changes bring to the Egyptian legal system.
埃及商法典(Code de Commerce)在历史上被确定为以下三个一般特征:它是私法的一部分;它是一种特殊的制度,源自于管辖“商业”活动的民事物权;而且它的适用范围并不总是很清楚,也不容易界定。最近出台的2008年第120号法律建立了一个被称为“经济法庭”的新实体,这开始威胁到《商法典》的存在,并正在改变我们对这三个概念的看法。本文试图说明经济法庭制度如何将最后一颗钉子钉在商业法典的棺材上,并试图批判性地审视这些变化给埃及法律制度带来的好处和坏处。
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引用次数: 0
Weak investor protection of Chinese state-controlled listed companies: a theory of governmental intervention 中国国有控股上市公司投资者保护不力:一个政府干预理论
Q4 Social Sciences Pub Date : 2014-02-04 DOI: 10.1504/IJPL.2014.059076
Lin Zhang
Confronted with the torrent of corporate scandals, legal scholars have already contributed abundant intellectual products on improving the investor protection of Chinese state-controlled listed companies. However, the majority of these contributions focus on the refinement of relevant legal institutions of investor protection in Chinese law or the transplantation of new ones from major commercial jurisdictions. Few of them pay attention to the link between governmental intervention and the malfunction of existing investor-oriented mechanisms of the Chinese legal system. This article demonstrates that apart from legal defects, governmental intervention which disrupts the function of investor-friendly legal institutions in place is another non-negligible factor, or even the most fundamental one in the context of China, to explain the weak investor protection of Chinese state-controlled listed companies. Therefore, in order to improve investor protection of Chinese state-controlled listed companies, the political reform on the establishment of a public servant government which has been underway in China must be continued.
面对层出不穷的公司丑闻,法律学者们已经就如何改善中国国有控股上市公司的投资者保护贡献了丰富的知识成果。然而,这些贡献大多集中在完善中国法律中有关投资者保护的法律制度,或从主要商事司法管辖区移植新的法律制度。很少有人关注政府干预与中国法律体系中现有投资者导向机制失灵之间的联系。本文表明,除了法律缺陷外,政府干预扰乱了投资者友好型法律制度的功能是解释中国国有控股上市公司投资者保护薄弱的另一个不可忽视的因素,甚至是中国背景下最根本的因素。因此,为了更好地保护中国国有控股上市公司的投资者,必须继续进行中国正在进行的建立公仆政府的政治改革。
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引用次数: 0
期刊
International Journal of Private Law
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