Oikeustieteellinen tiedekunta

 

Recent Submissions

  • Stanikic, Teija (Suomalainen Lakimiesyhdistys, 2015)
    The aim of this thesis is to analyze the process in which the court assesses what kind of evidential value eyewitness identification should have in an individual criminal case in court. The attention is on special features of national procedural law and on witness psychological research connected to this process. Since the stages of the criminal proceeding preceding the evaluation of evidence also have an impact on this process, the following questions have been set for this research: (1) on which factors should the evidence be gathered in cases in which an identification is made; (2) which special features are connected with the process of presenting evidence that applies to the reliability of the identification in court; and (3) how should the reliability of the eyewitness identification be analyzed in the court. The first question is partly discussed in the form of a literature review. The results of witness psychological studies conducted on the sources of errors affecting identification as the crime occurs (estimator variables) are discussed, and conclusions are made of the applicability of those experimental rules in legal settings. For instance, observation distance, exposure time, the perpetrator of the crime having masked themselves, eyewitness age and ethnic origin can influence the reliability of the identification. Secondly, the factors affecting the reliability of the identification in the police investigation (system variables) are discussed. These include, for instance, the possible use of a show-up or a lineup with fillers or the presentation of the suspect to the eyewitness in person or in a photograph. Experimental rules for the system variables have also been included into the Finnish procedural regulation of police investigations. The focus of this research is also to study that regulation using the research method of the interpretation and systematization of legal rules. In addition to this, propositions for the developing of legislation de lege ferenda are made based on witness psychological research and practical points. An important result in this part of the study is that the valid regulation mainly corresponds to the results of witness psychological research. However, development needs have been detected. The regulation is partially contradictory and insufficient, and the terminology used in it is partly unsettled and not accurate. Another problem is that the rules have been deconcentrated in different levels of legal regulation. For this reason the regulation includes overlapping rules and several rules that refer to other rules. How to interpret the latter is questionable. For instance, the legal rules for the method of identification in which a single suspect is shown to a witness by the police remain unclear. Thus, through the interpretation of the regulation this study also clarifies which procedural regulation should be followed when identification is put into practice in different ways for example, as a show-up, a lineup or a photograph or video identification. In addition, the experimental results of witness psychological research support some specific new procedural rules being included into the legislation. These are also presented in this study. In answer to the first research question, the objective of gathering the evidence in its entirety is the error sources in identification and the other factors affecting reliability. In addition to this, collecting evidence of the eyewitness confidence and the time used for identification is recommended. When evaluating evidence, the level of confidence, however, should be taken into consideration only under specific conditions mentioned in the research. The second question is considered in the light of the rules and principles for the legal procedure of the presentation of evidence. Interpretation and systematization is used as the method, and witness psychological research results are considered. The study showed that the rules and other principles for the legal procedure together with the principle of the free presentation of evidence facilitate the presentation of the evidence applying to the identification error sources per se. Procedural principles, however, must be interpreted in a way that allows the use of the police identification report and police identification video as evidence in the trial. When gathering and presenting the evidence, the objectivity principle has an essential importance as well as the witness psychological expertise of the prosecutor and suspect's assistant. Further, the court should find out, on the basis of its duty to lead the process and with specific preconditions that have been specified in this study, what factors have influenced the reliability of the identification. For the most part, the use of expert witnesses is advisable only in connection with the identification of criminals suspected of serious crimes. The third question focuses on the evaluation of eyewitness identification evidence on the basis of the argumentation presented in the theories of evaluating evidence. The analysis model of identification reliability is represented as a solution to the question of how the reliability of eyewitness identification should be analyzed in court. It is essential in this model that when the principle of the free evaluation of evidence is dominant, the reliability of the identification is analyzed utilizing witness psychological rules by specifying them, yet always considering their probable value. When applying experimental rules in a single case, the circumstances and characteristics of the case must be taken into consideration, as well. The frequency-based theories of juror decision-making are rejected as not suitable for the analysis. Certain preconditions are also set for the use of the Story Model and the method based on falsification of hypotheses by Christian Diesen. The importance of a sufficient account for the factors affecting the reliability of the identification is emphasized as a part of the analysis, and evaluating the sufficiency separately is recommended. Categorization of the identification error sources is suggested for helping the analyzing process. This categorization should be made of the factors affecting the reliability before and during the investigation. The research also outlines how evidence relating to the identity of the perpetrator other than eyewitness identification and the gravity of the crime affect the analysis. In its entirety the analysis is different in each case, and the judge's intuition has a significant importance in applying the experimental rules of witness psychological research, especially in assessing the joint influence of the different factors affecting the reliability of the identification. Case material is also utilized in the study. Practical information based on the material is provided about the evaluation of eyewitness identification evidence in court a few points are also made about the identification procedures of the police. In the future, it is of great importance that the results of witness psychological studies are taken into consideration in the regulation of identification proceedings and in its interpretation as well as in the development of the quality of the analysis in individual cases in court.
  • Mutanen, Anu (2015)
    This dissertation analyses state sovereignty from the point of view of national constitutions in the context of the constitutional pluralism of the EU. The research questions of the study are threefold. 1. What changes has the European Union caused in the conceptions and theories of state sovereignty? 2. How do the constitutions of the EU Member States regulate sovereignty? 3. How have these sovereignty provisions been interpreted in Finland, Germany, Denmark, Sweden, and Estonia in a selection of EU-related national treaty processes? These questions are examined with a combination of theoretical and genealogical methods as well as contextual legal dogmatics and legal comparison. The dissertation demonstrates that the EU, and European constitutionalism in general, has profoundly affected state sovereignty as a matter of national constitutional law. The concept of state sovereignty has met with increasing criticism. Particularly the idea of absolute sovereignty has faced its demise in the EU Member States. Nevertheless, the general scholarly take within constitutional law still holds on to the concept, but provides it with increasingly relative content expressed in different theories of delegated or shared sovereignty. The texts of the EU Member State constitutions, however, still hold on to rather absolute formulations of state sovereignty and are still silent on the EU despite its far-reaching effects on sovereignty. As a result the constitutional provisions on sovereignty have been subject to dynamic interpretation in order to enable the domestic ratification of the EU treaties and their amendments without jeopardising the EU s development. Germany belongs to the group of states whose constitutions do not contain a sovereignty clause and which have well-established empowerment clauses. The interpretations provided by the German Constitutional Court in regard to the EU treaties have at times been very EU critical, and influential: Sweden, for example, has clearly developed its EU regulation through the model provided by Germany. Sweden does not mention state sovereignty in its Constitutions, and its constitutional interpretation has been integration friendly. Denmark has an EU-minimalist Constitution, the rigidity and the strong built-in referendum institution of which has enabled it to negotiate opt-outs to the EU treaties, allowing it to escape certain significant consequences for sovereignty. Estonia is situated at the apex of sovereignty protectionist constitutions, but on the other hand its Supreme Court has adopted a very pro-EU manner of interpretation. Finland used to have one of the most sovereignty-oriented constitutions in the EU. However, during the country s EU membership the constitutional interpretation has shifted from a rigid and formalistic approach to state sovereignty towards emphasising and easing Finland s EU activities and other international cooperation. This development was codified in 2012 in the Constitution of Finland in the form of an EU clause and empowerment clauses. When considering both the textual level of sovereignty regulation and its interpretation in connection to the national EU treaty ratification procedures, the current Finnish constitutional understanding of sovereignty is more integration friendly than that of Germany, Denmark, Sweden, or Estonia. This dissertation argues in favour of a pluralistic understanding of state sovereignty for resolution of the problems related to sovereignty within the EU. In the new pluralistic understanding of state sovereignty, national conceptions of sovereignty are recognised in that they also contain within themselves the possibilities for international cooperation and EU membership, with the accompanying transfer of powers and widening of competences, in order to engender truly pluralistic interaction between the EU and its Member States.
  • Nyholm, Elina (Helsingin yliopisto, 2015)
    The research question relates to the content of the ex post supervision provisions of the Finnish Environmental Protection Act (EPA) under the currently valid legislation. The study particularly focuses upon single control orders (EPA Section 180), indirect administrative compulsion (EPA Sections 175 through 176) and direct administrative compulsion (EPA Section 181). The objective is to systematize the mutual delineation of the scopes of application of the said provisions. The study utilizes the method of legal dogmatics. Furthermore, the aim is to present views on how the ex post control provisions of the EPA should be developed. A particular methodical characteristic entails the ample utilization of also unpublished case law, primarily in highlighting the problematic issues. For this reason, the study also exhibits characteristics of empirical legal research. This is also why the study is additionally distinctly connected to administrative procedural law, albeit it is categorized under environmental law, or, more precisely, under environmental protection law. The study examines the instances when activities causing the threat of environmental pollution can be targeted with a single control order, when the activities are in breach of the EPA, a decree or regulation issued under it in such a manner that it can be targeted with indirect administrative compulsion, and what are the prerequisites that need to be met for the causing of the pollution to be capable of being addressed by means of direct administrative compulsion, i.e. the immediate suspension of the activities. The study systematizes the obligations contained in the various provisions of the EPA, and those contained in the decrees and regulations issued under the EPA, compliance with which can be enforced by means of indirect administrative compulsion. The pivotal finding comprises the systematization of the provisions of the EPA in such a manner that the situations entitling to the application of the various ex post supervisory measures and the mutual boundaries of the ex post supervisory measures scopes of application become less ambiguous. An additional finding entails the provision of some individual legislative recommendations relating, inter alia, to the regulation of the competent authority and the degree of the obligatory nature at which the prohibitions contained in the legislation should be set.
  • Lautjärvi, Kari (Talentum Media Oy, 2015)
    Kari Lautjärvi MEZZANINE FINANCE INSTRUMENTS - A COMPANY LAW STUDY ON THE DEBT BASED MEZZANINE INSTRUMENT HOLDER´S LEGAL POSITION IN A FINNISH COMPANY LIMITED BY SHARES 1. Object and methods of the dissertation This doctoral dissertation provides a comprehensive discussion on various equity and debt financing instruments that Finnish limited liability companies (limited by shares) generally use. The main focus of the dissertation is examining mezzanine debt instruments incorporating such things as control covenants, capital and debenture loans, perpetual hybrid loans, profit sharing loans as well as convertible and option loans. In general, mezzanine finance instruments are used as corporate finance products in Finland and are a form of hybrid capital. Albeit typically structured as debt instruments, mezzanine instruments are often more akin to equity finance instruments by virtue of their characteristics. The equity instruments are regulated mainly by company law as well as the articles of association of the company concerned, whilst the debt instruments are regulated in essence by the Law of Obligations and the general principles of contract law. The new Finnish Act on Limited Liability Companies (624/2006), hereinafter the "FCA", extended the contractual freedom of companies in creating different types of equity financing instruments, primarily by the creation of different classes of shares. The equity instruments may confer preferred voting, economic rights and other benefits as well as redeemable and convertible rights. Conversely, the contract law principle of freedom of contract has traditionally enabled the debt instruments to be tailored according to the needs of a particular company. Consequently, there is extensive contractual freedom in creating mezzanine debt instruments in Finland. Finnish limited liability companies issue mezzanine instruments primarily for the purposes of achieving tax benefits, improving the company´s solvency and credit ratios as well as facilitating the company´s capital funding or decreasing capital expenditure. The mezzanine instruments may, inter alia, contribute to the improvement of risk management for companies and their investors as well as increased profits for the investors. They also provide an alternative financing method for companies, their shareholders and other investors by mitigating their conflicting interests. The implementation of the International Financial Reporting Standards (IFRS) in Finland has emphasized substance based evaluation in defining the difference between equity and debt in company accounts. Thus, the actual substance and nature of the instrument concerned is important more often than its legal form. However, from the perspectives of the Finnish company, accounting and tax law, the legal character and status of equity and debt instruments may differ or conflict with one another. This dissertation mainly concentrates on the analysis of various types of mezzanine instruments and the structure of the applicable Finnish legal rules. The central theme of the dissertation is the study of the principal-agent theory combined with the theory of transaction cost economics. The dissertation considers both the protection granted by the FCA as well as the risks involved for the various actors in a company. Therefore, the focus is on the factual nature and content of the financial instruments rather than their pure legal form. The analysis in the dissertation also encompasses the theory of law and economics. The Finnish legislation, legal literature and case law directly addressing debt-based mezzanine instruments are modest, and the same applies to the other Nordic legal systems. Consequently, the dissertation also contains comparative research on certain legal aspects of EU regulations and Anglo-American rules. 2. Themes, structure and conclusions of the dissertation The dissertation discusses the legal position under the FCA of a contractual creditor at a general level, and particularly the position of a debt- based mezzanine instrument holder in a Finnish limited liability company where the company is a going concern. As a general theme, the dissertation suggests that a contractual creditor of a company could, under certain circumstances, be identified as a principal of the company's management, while the board of directors in particular acts as the agent. This suggestion is highlighted especially in circumstances where the creditor is the holder of a mezzanine debt instrument conferring control or residual rights, or the instrument is perpetual by nature. A specific theme of the dissertation is the fiduciary duties of the management (the board of directors), particularly the duty of care and the duty of loyalty owed to a contractual creditor under Section 8 of Chapter 1 of the FCA. These duties have been traditionally interpreted as extending to both the company (directly) and its shareholders (indirectly). The fulfillment of the directors´ duty of care with regard to particular acts and omissions is determined by the rule of business judgment. The dissertation consists of nine Chapters. Chapter 1 describes the object, themes, theoretical frames, methods, structure and sources of the dissertation. Chapter 2 focuses on the roles of both equity-based and debt-based investors and their relevant principal-agent relations in the mezzanine financing transactions. The chapter examines, inter alia, various theories concerning a company and the shareholders or stakeholders of a company in these contexts, the regulatory frameworks and legal strategies for protecting principals, and the protection granted by the FCA for principals in various principal-agent relations. Chapter 3 provides an overview of the capital structure in a Finnish limited liability company, the characteristics of both equity and debt, equity and debt investments as a combination of risk and income, the risk preferences of various investors, the legal positions of various investors in relation to an order for distribution of payments or return of capital, and the relevance of the risk positions. In addition, the chapter discusses equity and debt capital from the perspectives of the company, accounting, tax and insolvency laws. Furthermore, Chapter 3 describes the capital structure under the FCA, including the formation, maintenance and distribution rules of the equity capital, and the creditors´ protection regime. Chapter 4 addresses mezzanine capital from the perspectives of company, accounting, tax and insolvency laws. Chapter 5 examines the levels of regulation and regulatory instruments for various types of mezzanine finance. Chapter 6 describes the different types of equity-based and debt-based mezzanine instruments used by a Finnish limited liability company and discusses various reasons for the use of the appropriate mezzanine finance instruments. Chapter 7 examines the asymmetry of legal treatment of mezzanine finance instruments from the perspectives of the company, accounting, tax and insolvency Laws, and the problems resulted from this asymmetry. The chapter also illustrates the similarities and differences between a tailored equity- based and a tailored debt- based mezzanine finance instrument, namely, a preferred share without any voting and residual income rights which is redeemable by the company, and a hybrid loan instrument having elements of perpetuity. Chapter 8 is the core of the dissertation. It provides an extensive discussion on the legal position of a contractual creditor as a principal and the legal strategies for the protection of such a creditor in general and as derived from the management´s fiduciary duties under the FCA where the debtor company is a going concern. Chapter 8 examines particularly the issue as to whether the management´s fiduciary duties (i.e., the duties of care and loyalty) under the FCA could in certain circumstances be extended to protect a contractual creditor in general and especially a debt-based mezzanine instrument holder, where the instrument has been strengthened with conditions or covenants of control rights, residual income rights or conversion rights. The chapter also discusses the relevance of the contractual loyalty principle in this context. Furthermore, Chapter 8 examines the functioning of the creditors´ protection regime pursuant to the FCA, the clarity and transparency of the legal position of the debt- based mezzanine investor under the FCA as well as the availability and reliability of information related to various finance instruments. Chapter 9 summarizes the conclusions of the research de lege lata and proposes regulative improvements de lege ferenda. The dissertation concludes with the notion that the close connection between the purpose of the company´s activities (normally long-term profit maximization of the shareholders of the company) with the going-concern principle of company law, on the one hand, and the duties of care and loyalty of the company´s management on the other, together result in the extension of the protection afforded under these fiduciary duties to contractual creditors (indirectly). This protection extends to the contractual creditors, especially when management´s decision on the distribution (and use) of company´s funds may affect the company´s liquidity and solvency, particularly in evaluating the company´s liquidity under the FCA. These fiduciary duties of management are emphasized in relation to the holders of debt- based mezzanine instruments conferring residual or control rights at that time or in the future (derived from conversion rights). The dissertation proposes de lege ferenda legislative reforms to the FCA, such as the clarification of directly and indirectly protected actors with regard to the management´s duty of care and duty of loyalty, and reevaluation of the creditors´ protection regime (and particularly the liquidity and solvency test) in distribution and maintenance of company funds by strengthening of the test and simultaneously abandoning the separation of restricted and unrestricted equity, as well as redefining the distributable funds. In addition, the dissertation proposes certain legislative improvements to the legal and contractual order of payments as well as improvements designed to increase the availability and reliability of company financial information for various investors. Finally, the increasing symmetry of company, accounting and tax laws from the perspective of the factual nature and substance (rather than their purely legal form) of the corresponding financial instruments is considered important in the future.
  • Vaitoja, Jari (Suomalainen Lakimiesyhdistys, 2014)
    The subject of this study is the various responsibilities of the parties and the court concerning the restriction and presentation of factual grounds for civil litigation claims and denials. Special focus is placed on grounds that are regulated by mandatory private law rules. The investigation of civil cases is at the initiative of the interested parties, who are obliged to invoke so called facts of law as grounds for their claims and denials. This means they must specify the factual circumstances they wish to be taken into consideration in the judgment. In addition, rules on the preclusion of the grounds for claims impose time based limitations on litigants dispositions. The party s right to present new claims or new grounds for claims may be lost if these are invoked at too late a phase during the procedure. As a result, realizing one s rights in civil procedure is highly dependent on one s financial resources or knowledge of the legal process. In order to reduce the possibility of litigants losing their rights, the judge is assigned the duty of substantive process management. A more precise goal of the study is to research how responsibility for claims based on mandatory private law is distributed between the parties and the judge. In particular, mandatory private law rules are included in labour law, consumer protection law and provisions regulating the invalidity of contracts. Similarly, there are mandatory aspects in provisions for adjustment of unfair contract terms or adjustment of compensation for damage. Substantive process management is usually considered the most important way of moderating the undesirable effects of both preclusion and the burden of allegation. The study concurs with this view but also argues that there are difficult issues connected to juridical control of the activities of the judge, as it is unclear to what degree these activities can be directed or evaluated by judicial norms. Furthermore, it is uncertain whether a party would have effective legal remedies, if any, were the judge to neglect his duties. Moreover, the precise content of the burden of allegation and the conditions under which a party could lose his right to invoke new circumstances are surprisingly wide open to interpretation. In short, the procedural provisions studied in this work are extremely flexible. While they mandate the judge to manage the process, they seem to do little to govern or restrict his use of discretion. The methodology of the study is for the most part legal dogmatic, its purpose being to systemize and interpret the procedural norms. The main questions in this area are, for example, the content of the burden of allegation, its implications for the responsibilities of the judge and litigants and neglect of substantive process management as a grounds for not precluding new claims or new grounds for claims. Equally important are the extent of the judge s responsibilities and the legal consequences of their default. The study nevertheless examines a substantial amount of legal policy and even legal theory, due to the open nature of the problems investigated. The study includes a detailed discussion of the reasons for and against the moderation of the burden of allegation on factual grounds based on mandatory rules (chapter 6). Arguments for and against the justification for material management of the case are carefully analysed in chapters 7.5 7.7. In this analysis arguments based on the rights of the litigants play a decisive role. The distinction between questions of fact and questions of law is examined in chapter 3 as the fundamental basis for the burden of allegation. Chapter 7.3 asks, within the framework of the theory of rights, whether it is reasonable to say that parties have rights in relation to a judge s responsibilities in the area of substantive process management. Chapter 7.4 deals with the question of how a judge s activities restrict or advance the freedoms of the litigants during the procedure or in their contractual relationship. The relatively passive attitude of judges is often still defended by means of an analogy with freedom of contract in private law. A discussion on the distinction between rules and principles of law is shortly introduced in chapter 2. In this study, principles of law are seen as a way to structure the relations between individual rights and collective interests. The study argues that with the help of principles of law, the individual rights of litigants should be defended against collective interests. In addition, they are seen as a way of extending juridical evaluation to areas where the authorities would otherwise have wide discretion. Chapter 3 opens with the claim that in some circumstances at least the judge should be duty bound to ensure that a party has the opportunity to invoke factual grounds even if he hasn t succeeded in doing so on his own initiative. For example, the judge may have to introduce an alternative ground into the discussion in order to give a litigant the possibility to consider invoking it. The content of the burden of allegation is also given closer examination. The study asks how a party can know which facts should be invoked and by what kind of statements this should be done in order to avoid any losses of material rights. This is quite a difficult problem, requiring answers to questions like how to distribute the burden between the parties and how to separate claims of facts, which have to be invoked, from claims of rights, for which the judge is responsible. Moreover, the burden of allegation should not concern juridical characterization of the circumstances. The latter question is especially difficult when the facts are described in legal texts using relatively abstract terms or when the relevance of the facts is based on unwritten norms. In these cases it is usually difficult to know which facts should be invoked and how exactly they should be described in the statements of the parties involved. The end of the chapter provides an analysis of the kinds of factual grounds that are investigated ex officio according to established practice or established opinion in the literature. Chapter 4 deals with the question of how to interpret the statements of the litigants. For example, should the burden of allegation be moderated by a more generous interpretation of the claims if mandatory private law seems applicable? This kind of thinking has been suggested in the civil law literature and is practised by the courts. Chapter 5 asks how a judge s neglect of different kinds of duties should be regarded as an obstacle to precluding litigants claims. In addition, the study argues that without exception preclusion requires the idea that a party has in a concrete way neglected his/her duty to invoke the facts. An examination is also provided of how to deal with factual uncertainty in circumstances involving juridical preconditions for preclusion. It is argued that an elementary distinction should be made between circumstances connected with the legal relationship of the parties on one hand and circumstances like the content of the parties statements, the questions presented by the judge, or other occurrences during court proceedings on the other hand. In chapter 6 factual grounds regulated by mandatory civil law rules are given closer examination. An analysis is provided of the justification for a judge s pronounced responsibility to ensure the investigation of these grounds and how his duties are manifested in action according to the type of grounds concerned. Chapter 7 begins by introducing some factors that hamper guidance of the judge s activities in material process management. However, the main question is the justification for the judge s responsibilities, which is analysed from the perspective of the individual rights of the parties and collective ends of society (as represented by the court). Chapter 8 examines attempts in preparatory legislative works and the literature to define the boundaries of material process management. Proposed solutions are first carefully described and then evaluated. The author s answer to the question of how the boundaries of a judge's responsibilities should be viewed is presented in chapter 9. The solution is based on constructing four main procedural principles of law with the help of procedural theory, preparatory legislative works and fundamental and human rights. These principles aim to advance realization of substantial legal protection, procedural economy, procedural justice and regulative purposes of private law. The principles are then applied in various typical situations of interpretation. Chapter 10 briefly considers the need to reform procedural legislation. The study concludes with chapter 11, where the main results of the study are summarized.
  • Emelonye, Uchenna (Helsingin yliopisto, 2014)
    Abstract This thesis adopted the law in context methodology after due consideration of other legal research methodologies. To situate child justice within the parameters of child rights, this thesis analyzed the normative underpinning of child rights and found that its foundation is traceable to the International Bill of Human Rights. It also examined the philosophical foundations of child rights and adopted the view that it is based on inclusive legal positivism found at the intersection of natural law and positive law. This thesis validated the existing claim that child justice is predicated on the mitigated culpability of children and that whilst human rights extend to children because of their humanity, child-specific rights, including child justice accrue to them specifically due to their age and vulnerability. Having considered all the principles of child rights, this thesis elevated the principles of proportionality and the best interests of the child as twin pillars of child justice. As a standard for the humane treatment of children in conflict with the law and predicated on the premise that the twin pillars encapsulate all other principles of child rights, this thesis examined to what extent the twin pillars are incorporated and applied in the Nigerian child justice system. This thesis found that although the 2003 Child Rights Act of Nigeria meets the minimum international legislative standard, child offenders in Nigeria seldom enjoy the protective shield of the twin pillars of child justice. It corroborated the strength of the twin pillars of child justice as judicial sentencing tools and found that whereas child rights may accommodate relative sensitivities, the twin pillars of child justice are immutable and non-derogable principles for the treatment of children in conflict with the law. To ensure the promotion and protection of the rights of child offenders, this thesis recommended the amendment of the Child Rights Act and the immediate establishment of all the enablers contemplated therein. Although the review of the 1999 Constitution of Nigeria was not the main focus of this thesis, it however found that certain provisions of the constitution inhibit the enjoyment of child rights. Exploring the opportunity presented by the ongoing constitutional reform in Nigeria, this thesis recommended the amendment of some sections of the constitution.
  • Reyes Gomez, Javier Alberto (2014)
    Law & Economics is the hegemonic framework in mainstream corporate governance theory and praxis. It permeates how legal scholars see corporations, how they must be managed, and to which ends they should be geared to. Because large amount of power is concentrated and exercised through corporations, the fact that law & economics is both a descriptive and a normative theory has an impact on the shaping of the world. This research aims at asking: is there an alternative normative jurisprudence to law & economics in corporate governance? In order to approach this task, the methodology used is hybrid, leaning towards a hermeneutical qualitative non-doctrinal approach, inspired by the mapping and criticism analysis of Roberto Mangabeira Unger and Dworkin s interpretivism all within the greater context of critical legal theory. This allows the research to make a detailed exploration of current structures and unearth its ideological underpinnings. The research starts by pinpointing the importance of corporate governance in the context of development theory, and it dissects its ideologically charged significance within an economicist view of the world. Then, corporations are analyzed from both historical and ontological perspectives in preparation for an alternative corporate legal theory. Such a jurisprudential approach takes, first, a descriptive form, though it then evolved into a normative one, gravitating around the goal of corporate law and the contrast between the theory of the firm and political philosophy. The tenets of law & economics are then critically dissected. The main findings are that law & economics appeal arises from its sound epistemological construction. It takes off from an ethical position (i.e. utilitarianism) which then serves a methodological path (i.e. positivist empiricism), on top of which a theoretical framework is developed (i.e. neoclassical economics). Its weakness, though, consists of simplistic and erroneous elemental assumptions. Based on these findings, the research proposes an alternative to the law & economics theory of corporate governance built on top of a model which mirrors its sound epistemological construction, though centers around a normative jurisprudence analysis of individual and corporate personhood and to the core of corporations, what they really are, and what they should be used for.
  • Vilanka, Olli (Helsingin yliopisto, 2014)
    This dissertation is an article based dissertation evaluating position of prosumers, authors and corporations in the information society especially from the viewpoint of Article 27 of the Universal Declaration of Human Rights (UDHR). Prosumers are understood as private natural persons who use content protected by copyright for non-commercial purposes. Similarly authors are understood, following the traditional droit d´auteur copyright theory, as individual natural persons creating content protected by copyright. As it has been argued that role of legal persons, or corporations, has increased as it comes to administering copyright, also their position shall be evaluated and compared to rights of authors and especially prosumers. Article 27 of the Universal Declaration of Human Rights, similarly as copyright theory based on exclusive rights, postulates that content should be both created and used. However, significant amounts of illegal uses of content on the Internet take constantly place. Preventing or denying use should not be in the interest of anyone. Thus the main aim of the book is to evaluate whether something prevents use of content on the Internet and to what extent it may be justified from the viewpoint of Article 27 of the UDHR. In this respect the book analyses article 27 of the UDHR suggesting that the right to science and culture as enshrined in its subsection 1 allows use of content. On the other hand subsection 2 of the Article 27 of the UDHR protects essential economic interests of authors. Although subsection 2 of the article 27 of the UDHR does not grant exclusive rights to authors, rights of authors shall be evaluated from the viewpoint that exclusive rights are being applied. In practice this means evaluating possibilities to administer use of content through exclusive rights and in this respect power relations between prosumers, authors and legal persons. Collective administration of rights, position of intermediaries and applicability of platform fees shall also be examined. Main method for evaluation is legal dogmatic method from fundamental right perspective. It could also be described as a traditional legal doctrine approach describing and systematizing legal sources and arguments containing philosophical insight. Regarding systemizing and interpreting norms, Dworkin s theory of rules and principles shall be applied. The book has also an interdisciplinary approach as it compares individualistic droit d auteur copyright theory to basics tenet from the field of communicational studies. The findings indicate that not only prosumers, but also authors seem to have small role as it comes to administering use of content. Instead role of legal persons seems to be more significant. As fundamental rights protect natural persons such as prosumers and authors, but in principle do not extend their scope to legal persons, and especially to larger corporations, rigorous and strict reading of copyright law often causes challenges from the viewpoint of fundamental rights. Thus the book argues that alternative manners but exclusive rights should be considered in order to secure rights of prosumers and authors as it comes to use of content on the Internet. Consequently some legal political suggestions shall be made.
  • Koulu, Sanna (Lakimiesliiton kustannus / Kauppakamari, 2014)
    This work, titled Agreements on Child Custody and Contact Legal foundations and proper families , belongs to the fields of child law and legal theory. It focuses on the legal effects of agreements on child custody and contact, spanning both informal agreements within the family and formal agreements usually drawn up in connection with divorce or separation. In Finland, formal agreements are a common way of arranging care and defining the legal custody of children after a divorce. Some tens of thousands of agreements are made each year, and they have specific legal effects comparable to court decisions. The legal analysis of these agreements offers a view into our conceptions of the family as well as into the legal foundations of agreements that concern children. The central issue is two-fold. First, the study surveys the ways in which agreements and their legal effects are justified in our current legal reasoning, in connection with the need for legitimacy in law. Secondly, the work examines the mechanisms that constrain and direct the legal effects of the agreements, in relation to the demands of legal coherence. In more concrete terms, the topic is approached via four research questions. First, how does law characterize custody and access as topics of agreement? Second, what does it mean to speak of agreements or contracts in relation to custody and contact? Third, why are these agreements granted legal effects? Here the question of whose agreements are granted legal effects is also important, since the justifications for the legal effects of agreements have a person-specific dimension. And fourth, how do agreements and negotiation produce and shape family autonomy? The research draws on three partly overlapping kinds of material. The most important source material consists of legal scholarship as well as legislative materials. This material is complemented by literature from the social sciences, especially from critical family studies, which analyses family relations mostly from the viewpoint of social constructionism. These strands of scholarship combine in an analysis of case law from the Finnish Supreme Court, covering 198 prejudicative decisions given mainly since 1980. Seven decisions were chosen for an in-depth reading, in order to examine how and why the agreements were given legal effects in certain difficult cases. The reasons for granting legal effects to agreements can be expressed as justificatory conceptions, i.e. ways of justifying and constraining the legal effects of agreements. These conceptions or schematics are historically contingent and changeable. All in all, five schemas were identified on the basis of the case law: 1) parental autonomy, 2) state power in the service of the common good, 3) factual care, 4) the best interests of the individual child and 5) the participation of the child. The five schemas were then further analysed in a historical context, showing a shift from status-based and essential justifications to more fluid and negotiatory models. This shift can be approached in multiple ways, as it corresponds thematically to the shift from the modern into a late modern mode of thinking. Some of the thematizations offered in the work are based on the contrast between juridico-political vs. normalizing power, examined by Foucault and Donzelot; on the ethics of justice and the ethics of care, as per Gilligan and Held; and on the system-theoretical approach proposed by King and Piper in the vein of Luhmann. Finally, the study discusses the justification and legal impact of agreements as a form of governing and regulating families. It is proposed that the good family is construed as one that is appropriately negotiatory and normal and that the logic of law is effectively co-opted into producing this normalization via the control of agreements. The main contribution of the study is the elaboration and analysis of different justificatory schemas. The best interests of the child are the most well-known of these, of course, but the identification of other, usually less visible schemas can provide tools for more transparent and solid legal reasoning and, paradoxically, can better safeguard the actual best interests of the children involved. Other contributions include the definition of the negotiatory ideal of current family law, as well as a thorough look into the logic of legal decision-making on families and children. Finally, the whole thesis can be fruitfully read as a case study of the theoretical approaches of e.g. Tuori in that it fleshes out the relationships of justification and constraint between the deep structures and the surface level of child law. The work concludes with proposals for legislative work and legal reasoning. It is argued that as factual care has come to be more and more influential in case law over the past few decades, its role in child custody and contact should be considered carefully in legislative work as well. At the same time, the availability of family mediation should be ensured in addition to access to justice in family conflicts. Finally, more attention should be paid to the effects and interpretations of the best interests principle and to the position of the child.
  • Martineau, Anne-Charlotte (Hakapaino Oy, 2014)
    Over the past decade, the "fragmentation" of international law has certainly been one of the most widely debated themes in the field. Both practitioners and scholars have tried to assess the significance of international law's splitting up into specialized regimes such as trade law, environmental law, human rights law, humanitarian law, etc. What has this meant for international law's "unity" or "coherence"? The creation of specialised rules and institutions has certainly made international law appear more technical, less dependent on large and perhaps utopian ideas about world peace, than old "public international law" used to be. How has this affected the professional identity of international lawyers? Fragmentation has also been the subject of numerous academic studies. Unlike most of those works, this thesis does not enter the debate, by assessing the pros and cons of fragmentation and then by seeking to suggest technical solutions to deal with its problems. Instead, it tries to assess the nature and significance of the debate: what does the debate, including the proposed solutions, tell us about international law today? The thesis attempts to make sense of the repetitious character of the debate, the way in which the positions are both well-known and conducive to familiar, yet always only partly satisfactory, solutions.
  • Matikainen, Tanja (Helsingin yliopisto, 2014)
    Title: The principle of adequate financial resources acting as a guarantor for local self-government: A study on the application of the principle of adequate financial resources In Finland local authorities are responsible for providing welfare services. The state has delegated the provision of welfare services to local authorities, while the state is responsible for law drafting and providing the municipalities with adequate funding for their statutory responsibilities. The central and local governments thus share the responsibility for ensuring the realization of basic rights. Local authorities have the right to levy taxes to ensure municipal financial independence. Municipalities are entitled to central government transfers for their statutory duties. The financial responsibility for the statutory responsibilities is divided between the central and the local government. The local government tax base and the level of central government transfers have been cut down drastically. Statutory obligations have not, however, diminished at the same time; on the contrary, local government has been given new tasks and existing ones have expanded. This has resulted in a significant imbalance in the local government economy. The principle of adequate financial resources is recognized in the European Charter of Local Self-Government in Article 9.2. According to the provision, local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law. The principle was put into practice in Finland during the reform of basic rights. Since then, the principle has consistently been adopted in the statements of the Constitutional Law Committee and the Administration Committee. The study examines the implementation of the principle of adequate financial resources: the principle as a guarantor of local self-government. The first research task is to clarify the content as well as the status of the principle of adequate financial resources as part of the legal order. The second research task is to investigate the financial relations between the central and the local government in terms of principle of adequate financial resources. The third research task is to figure out how the principle of adequate financial resources is applied and complied with in Finland and the other Nordic countries. The research is of a legal nature with a focus on local government law. Local government law in this study is understood functionally, i.e. local government law is that part of the legal order which in an essential way concerns local government activities and tasks. The main research method is practical jurisprudence; comparative law is also used as a secondary method in the study. The results show that the principle of adequate financial resources has a demonstrable status as a constitutional principle, and in addition, the principle has the required institutional support of a provision. There are problems in the realization of the principle, however, and thus it cannot be stated that the principle is realized at this time. The financial cost impacts are systematically underestimated in government proposals, which cause problems for municipal finances. Cuts in the local government tax base are compensated with central government transfers, in which case the revenue previously belonging to the field of self-government switches over to the field of political policy-making and becomes a target for cuts. The central government transfer system is no longer considered as the basis for a financial relation between central and local governments, which causes problems. In addition, the program procedure for basic public services does not have the effectiveness it should for the realization of the principle. For these reasons findings suggest that § 121 of the Finnish Constitution should be amended with a provision of the principle of adequate financial resources.
  • Salojärvi, Juhana (Helsingin yliopisto, 2013)
    This dissertation examines the history of critical legal scholarship of the 1960s and 1970s in the United States, Scandinavia, and Finland. The purposes are to reconstruct the development of critical scholarship, analyze its substance and motives, and compare the critical scholarship of these countries. The United States and Finland are investigated in more detail, whereas the three Scandinavian countries, Denmark, Norway, and Sweden, are examined collectively and more generally. The time frame of the study covers from the mid-1960s to the end of the 1970s. The research was done by reviewing the published legal literature of the time, from which the critical legal literature was sifted. In this study, the word critical means fundamental criticism of the law and traditional legal scholarship, whereas the term alternative refers to scholarship that is less fundamental in its criticism, but which nevertheless endorses alternative methods of scholarship. The method of the study was based on the perspective of legal history, in which a change in jurisprudence is related to changes in society, culture, and scholarship in general. The study consists of three main chapters which discuss the development of critical legal scholarship in the 1960s and 1970s in the United States, Scandinavia, and Finland. Before the main focus, a general introduction to the history of jurisprudence, scholarship, and society is given in chapter two. After the general introduction, chapter three analyzes the development of critical legal scholarship in the United States. A tradition of alternative and cross-disciplinary legal scholarship had already been established by the beginning of the 1960s, but during that decade more scholars became interested in the relationship between law and society as well as between legal scholarship and the social sciences. A more critical movement emerged in the 1970s, which related problems of law to problems in the deep structures of society. This critical movement evolved into the critical legal studies movement in the late 1970s, adopting a broad philosophical basis for its scholarship. The development of critical legal scholarship in Scandinavia and Finland, examined in chapters four and five, was relatively similar to that of the United States. A tradition of sociology of law emerged in the 1960s, which encouraged legal scholars to investigate the relationship between law and society, as well as between legal scholarship and the social sciences. This trend developed into critical legal scholarship when Marxist elements were brought into it in the 1970s. In Finland, legal scholarship was rather conservative at the beginning of the 1960s, during which, however, alternative elements became more popular. By the end of the 1960s, an attack against traditional legal scholarship emerged. A variety of social science elements as well as Marxism were introduced into critical legal scholarship in the 1970s. Legal scholarship transformed in the countries under examination during the 1960s, adopting more elements from the social sciences. As the 1960s turned to the 1970s, sociological jurisprudence turned more towards criticism of law and legal scholarship. The critical movements acquired a more sophisticated philosophical basis and a more radical tone during the 1970s, and eventually they organized into movements of critical jurisprudence. The fundamental characteristics of the critical movements were the same in each of the countries. The most marked difference was that whereas American critical legal scholarship was mostly comprised of philosophical criticism of doctrine and legal consciousness, Nordic critical legal scholarship had more Marxist and politically oriented elements. Finnish critical legal scholarship was the most radical and political because of the conservative tradition of Finnish jurisprudence and the polarized nature of Finnish society. When seen from a comprehensive perspective, critical legal scholarship of the 1960s and 1970s can best be understood as academic counter-cultures which sought to change the scholarship and academic tradition on the one hand and to have an impact on society on the other.
  • Pirjola, Jari (Helsingin yliopisto, 2013)
    Dark and bright sides of human rights. Towards pragmatic evaluation Human rights are interplay between theory and practice. On the one hand human rights are conventions, rules and standards on the other hand these same conventions and standards receive their meaning in professional practice. An agreement of human rights in abstract level does not provide us with guidance as to what is needed for their implementation in practice. Human rights do not only set limits as they also create opportunities. Thus, in the service of practice, human rights can start to produce good and bad practical consequences depending on the perspective to the matter. My thesis consists of 7 articles and an introduction that complements them theoretically. The seven articles that form the substance of my thesis discuss human rights both from theoretical as well as from practical perspective. The articles can be divided into two different groups, even though they have many common themes. The first two articles analyse, on a rather theoretical level, the operation of human rights in a multicultural world. The second group of articles (3,4,5,6 and 7) discuss the use of human rights in different practical contexts. My study has two levels. On one level each individual article addresses particular research questions and provides conclusions on them (article level). In the introduction (introduction level) the articles are discussed from the theory practice perspective. The seven articles use different legal strategies and writing techniques in discussing human rights as a theory and practice. There are many ways to explore human rights, as different professional or academic contexts and situations require different strategies and languages. I use concepts, techniques and approaches that draw on traditional legal writing and legal analysis, approaches that are affected by more critical legal writing as well as concepts and approaches that are affected by discussions and methodologies in cultural anthropology. The general aim of my research is to discuss dynamics of the interaction between abstract rights and their practical realisation. The operation of rights is also examined from pragmatic perspective. The pragmatic approach to rights is concerned with the practical operation and concrete results of human rights in concrete situations, not with what human rights are claimed to be in the abstract. Pragmatic approach is interested in what kind difference do human rights make in practice, which purpose does human rights language serve and who are included and who are excluded from the protection of rights. From pragmatic perspective the abstract idea of promoting and respecting human rights emerges as overly simplistic, even clichéd, demand as in practice human rights can be invoked in support of almost any purpose or goal.
  • Sädevirta, Markus (Helsingin yliopisto, 2013)
    This research contains an analysis of the regulations on the conclusion and renewal of fixed-term contracts in the European Union, Finland, France and the United Kingdom. The research analyses how fixed-term employment has been restricted in national regulation before the Framework Agreement on Fixed-Term Work was introduced. Further, the research examines the objectives of the Framework Agreement and assesses how it has been implemented with respect to the limits on the use of successive fixed-term contracts and related sanctions, and thus analyses its effects on national laws in the research countries. The research also examines the relevant case law of the CJEU with respect to the provisions of the Framework Agreement and assesses the extent to which national case law and legal developments after implementation correspond with the legal stance of the CJEU. Based on this analysis, the measures preventing the abuse of successive fixed-term contracts in national laws and their effectiveness in achieving the objectives of the Framework Agreement are assessed. As fixed-term contracts play a central role in the EU employment policy, the research explores whether the stance on acceptable use of fixed-term contracts in EU law and EU employment policy correspond with each other. As the protection against abuse of successive fixed-term contracts laid down by the Framework Agreement is relatively weak, the relation between the Directive on Fixed-Term Work implementing the Agreement and the fundamental rights of the EU is examined to see whether the rights of fixed-term employees should be strengthened by specifying the grounds on which fixed-term contracts can be concluded in EU law. The research methods are legal comparison and legal dogmatics mostly in its prevalent form.The research is divided into six parts. The first part contains the research framework, main research tasks and methodological assumptions. The second part consists of the relevant EU legislation with its evaluation affecting the acceptable use of fixed-term contracts and the development of EU employment policy related to the use of fixed-term contracts. Parts 3-5 cover national law and evaluation in the research framework. The sixth part contains the final remarks, conclusions and summary. The preconditions for using successive fixed-term contracts are not determined precisely in Clause 5 of the Framework Agreement and the fact that the Clause does not have a direct effect as it is addressed to the Member States only and the individual contracts are excluded from its scope, lead to the conclusion that the Framework Agreement has failed in its objective of preventing abuse arising from successive fixed-term contracts, as the recent case law of the CJEU also indicates. When it comes to acceptable use of fixed-term contracts, the research also indicates tension between EU employment law and employment policy. While the CJEU has permitted long sequences, even several years, of successive fixed-term contracts in same job, the purpose of the EU Employment Guidelines is to encourage the use of fixed-term contracts in order to promote the employability of particular groups and to create pathways to permanent employment, but not to permit permanent use of successive fixed-term contracts. These facts support strengthening fundamental rights in EU law in terms of concluding fixed-term contracts. As there are no compulsory requirements regarding the content, level or the scope of sanctions in the Framework Agreement, effective enforcement is almost fully dependent on national law and jurisdiction and the full effectiveness of the EU law remains to some extent incomplete. The effect of Clause 5 as an instrument laying down minimum standards for restricting the use of successive fixed-term contracts in national laws has been extremely modest in the countries researched. In France and Finland, the legislation restricting the use of successive and single fixed-term contracts was already in place, so that no implementation measures were needed. The UK was one of the rare countries which had to introduce completely new measures to implement the Directive. However, the UK legislation implementing the Directive does not suggest considerable improvement in the protection of fixed-term employees. Comparison of the domestic law of the research countries indicates that strict employment security of permanent employment contracts seems to correlate with strict regulation on concluding and renewing fixed-term contracts and sanctioning their abuse. Otherwise, the regulations on use of fixed-term contracts are characterised by strong national legal traditions rather than by the Framework Agreement on Fixed-Term Work, which has not approximated the regulations in this regard. In this sense, the Framework Agreement as a generally determined minimum standard has not managed to improve or create individual rights of fixed-term employees.
  • Vihriälä, Helena (Helsingin yliopisto, 2012)
    I pose two questions in my thesis. The first one asks how the theories of intention based on knowledge go together with the understanding of human agency in the philosophy of mind, cognitive psychology and neuroscience. Is the Finnish legislation on intent based probability theory satisfactory or should the legislation allow intention to be assessed also on the basis of the will as well? In Finland and in many other European countries the traditional approach to intent has been that the prosecutor has to prove, firstly, that the accused has committed the crime and, secondly, that the accused has had the necessary knowledge and will while acting. This is based on a Cartesian view of two separate entities: body and mind. In my review of literature it is apparent that the Cartesian view no longer dominates in the philosophy of mind. According to cognitive psychology and neuroscience a human being is an entity, where one cannot separate action and thought. It is very difficult if not impossible to find out what the criminal had in mind when he committed the crime. Psychologists can tell something about the possible reasons why someone acts criminally based on the knowledge of the suspect s history. But even such an expert assessment is likely to be incomplete and uncertain. Judges from whom extensive psychological expertise cannot be expected have even less chance of reliably inferring about the thoughts of the accused at the time of the act. I conclude that we can only judge people on the basis of their deeds, as we do in the other areas of life. We have objective knowledge of the act and how dangerous it was. If the accused is liable and of age (18 years), we have to assume that he or she had understood the nature of the act, if there is no proof to the contrary. In my second question, I ask if the intention has to be proved separately from the act as seen in the judicial literature or can it be proved based on the act. Which one is dominant in the legal praxis? I analysed about a hundred cases from the Supreme Court and the Court of appeal in Helsinki. I also circulated a questionnaire to the judges in the Helsinki area. Both strongly support the conclusion that the legal praxis does not attempt to make judgements about intent separately from establishing the facts. The guilt is assessed on the basis of the objective facts about the act.