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  • Vesala, Juha (IPR University Center, 2015)
    Innovation the development of new or improved products and technologies is a major source of economic welfare and growth. Due to its advantages, policy-makers seek to promote innovation in markets by addressing market failures that threaten innovation, such as the risk of free-riding through grant of intellectual property rights ( IPRs ) and concerns raised by market power in antitrust law. This article-based dissertation examines how antitrust (Articles 101 and 102 of the Treaty on the Functioning of the European Union) could treat certain practices involving IPRs in a way amenable to innovation. This poses a major challenge because practices often simultaneously involve aspects that are desirable for innovation (e.g. as a means of recouping investments) and harmful to it (e.g. lessening competitive pressures to innovate). Therefore, trade-offs are required between these conflicting aspects. However, as many innovation aspects are theoretically and empirically ambiguous, antitrust choices must be made under considerable uncertainty. Using methods of theoretical legal dogmatics and arguments from economics, the study develops approaches for the antitrust treatment of certain practices involving IPRs (misuse of IPR application procedures, enforcement of standards-essential patents, and conditions of licensing). As its main result, the study offers analytical approaches and antitrust standards that allow courts, authorities and firms to assess practices. The study finds, for instance, that although antitrust normally does not limit enforcement of IPRs, recourse to injunctive relief by essential patent holders can violate antitrust due to the specific context of standard-setting in which failure to uphold promises to license essential patents threatens competition, standardization and innovation. The study also presents broader observations on the role of antitrust protection of innovation. EU antitrust breaks new ground in extending its scrutiny to conduct in IP application and enforcement procedures, but this does not diverge from the established premise of antitrust only exceptionally intervening in the core of IPR. While conventionally antitrust has mostly been seen as limiting the exercise of IPRs, some practices examined interestingly highlight the possibly increasing role of antitrust in protecting IP holders interests and safeguarding rewards of innovators.
  • Huuskonen, Mikko (Helsingin yliopisto, 2006)
    The study concentrates on the introduction and background motive of technology related change of copyright law as reflected mainly in the Berne Convention due to the technological and economic necessities experienced in the early 20th century. The purpose of this study is to understand a development which has led to the adaptation of licensing regimes that are not based on traditional exclusivity approach. Voice recording, broadcasting, rebroadcasting, and photocopying serve as main examples of the development. Also the impact of internet and mobile technologies are discussed. The method is based on institutional theory of law, and makes broad use of both economic analysis and historical documentation. The problem of the legislator's choice on how to structure copyright law between the two alternatives, exclusive property or liability approach, has risen constantly throughout the 20th century. The main conflict of interest seems to be between the exclusive right of the copyright holder, and the interests of users, that is, both the commercial and end users. The secondary use of copyright material is a rapidly growing form of copyright use. This creates controversies arising in that particular field of commercial use. Exclusivity is often regarded as the essence of copyright. However, the development of communication technology has allowed new forms of use that are not as well directly controllable by the relevant parties as was the publishing and sale of books. The new technology-enabled phenomenon is mass use in its different forms. Mass use means use of copyright protected works in large quantities in a manner that is either impossible or prohibitively costly to trace, identify and bill. This development which is common to practically all technological innovations of the 20th century questions the accuracy of the exclusivity approach to copyright. This study explores technology related change of the copyright institution, and how copyright is developing from a system based on exclusivity towards a system of compensation increasingly adopting elements of compulsory - that is, involuntary - licensing and its variants. Secondly, on a more general level, the study attempts to formulate a conclusion concerning the impact of technological change on copyright. Exclusivity remains the theoretical and logical starting point of copyright legislation and nearly any analysis of copyright, scientific or within legal practice. Anyhow, the 20th century development has introduced a new set of regulations attempting to limit overly powerful legal positions and thus to protect interests relating to development of new technologies and businesses. This has largely taken place by some form of compulsory licensing. The broad use of platform fees is an illustration of this development in its extreme. The origin of this development is in the belief to scientific progress and innovation in the early 20th century (the development motive). The study suggests that a more coherent approach towards copyright may be reached by studying copyright as a system of compensation, rather than a system of full control of the use of copyright protected matter. This also corresponds to the evolving set of beliefs of the copyright ideology. Exclusivity has not disappeared from the overall picture, but shall be reserved to those forms of use where it is applicable. That is, where copyright is directly controllable by the author or other copyright holder without prohibitive overall consequences as to other right holders, users, businesses, or the society.
  • Günsberg, Patrick (2015)
    Drawing on a comparative approach this study discusses the criminalization of the so-called hard-core cartels and suggests that despite possible pitfalls it continues to be a worthy endeavor. It seems that the integrity of the criminal justice system warrants the introduction of a criminalized anti-cartel regime, a project that should be on the agenda for all modern economies, including Finland and Sweden. However, one should not rashly proceed with such a vast project without carefully considering all the components that go into a successful regime lest the project become an asset turned into a liability. Crucially a failure regarding one or few components may undermine the whole project, as the UK experience may confirm. In the gravest cases criminal law alone could communicate adequately the blameworthiness of a given conduct: cartels impair one of the core pillars of our society, the market economy on which individuals depend in an attempt to ensure their own welfare. Indeed the bold disobedience to the whole system appears to be at the core of what is delinquent about cartels. Overcriminalization critique concerning a possible criminalization of cartel conduct seems to ignore the moral educative function of criminal law. The public may come to denounce behavior that was previously perceived to be neutral in moral terms one may think of the environmental offences for instance. Certainly public opinion could be shaped by experts views in complex fields of law. A coherent EU criminal policy and a national one for that matter, with regard to cartels should promote uniformity: the credibility of the criminal justice system is supported by criminally banning violations of a similar penal value. The justification for an exclusively administrative mode of anti-cartel enforcement appears vague. It seems that administrative sanctions could be properly adopted only against minor offences, whereas cartels as an egregious violation of competition law do not seem to fall within that category. Arguably, cartel conduct warrants the ultimate condemnation provided only by criminal law. Other measures would not produce the stigmatizing label on a par with criminal measures. Several EU member states have introduced criminal cartel offences whereas similar rules are absent at the EU level. In that regard it may be noted that it would hardly make for a coherent EU criminal policy if larger cross-border cartels did not prompt criminal liability whereas at the national level cartels were caught by criminal prohibition. Moreover, it may be argued that the UK problems with the cartel offence stem partly from the lack of harmonization in the EU, which may have also contributed to the misguided policy of relying exclusively on administrative sanctions in Finland where individual liability is completely absent. While the optimal deterrence theory cannot alone be relied upon to back a cartel criminalization project, it may remain a point of continued interest in the cartel criminalization debate due to its theoretical appeal. All in all, there are several commentators and jurisdictions that rightly acknowledge the value of a mixture of measures being available in the fight against cartels, including director disqualification orders, fines and custodial sanctions.
  • 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.
  • Puurunen, Tapio (Helsingin yliopisto, 2005)
  • Still, Viveca (Helsingin yliopisto, 2007)
    Digital rights management (DRM) systems are increasingly being developed and used in order to protect the commercial interests of copyright holders. These systems have developed over time from singular copy prevention mechanisms towards all-encompassing trusted systems enabling the control of digital content throughout its life cycle and in a multi-media context. The impossibility of effectively controlling the use of the copyrighted work once it has been put on the market can be seen as a fundamental reason for the legal regulation of copyright. Digital rights management systems seem to provide for an unprecedented ability to control the use of copyrighted works from production to consumption, thereby changing the setting for copyright regulation. The principal research question of this doctoral thesis concerns how copyright s balance can be restored considering copyright owners increased power to control use through technical and contractual means, possibly backed up by the legal system. Answering this question requires us first to look into the current regulation of DRM, assessing how the current legislative framework takes into consideration the shift in the power position that DRM offers. Thereafter, the shortcomings of the current legislative framework are analysed in view of the prospective legal dimensions of DRM. This analysis is followed by an assessment of current suggestions for corrective means in the regulation of DRM, which ends in a regulative model proposed by the author. The method used in the research is that of legal informatics and information law. Legal informatics analyses the interrelationship between law and information and communication technologies. In this thesis, copyright is seen as part of information law and more specifically the modern European information policy, which usually is referred to as the common information area . A fundamental principle emanating form this body of law is the principle of free flow of information, which is used as a guiding principle for the regulative model proposed in this thesis. The aim of this thesis is to contribute to the understanding of DRM as an object of regulation within the copyright system and to further the discussion of the proper regulation of digital rights management systems as a part of a balanced copyright regime.
  • Makkonen, Timo (Helsingin yliopisto, 2010)
    A peculiar circumstance characterizes the fight against racial and ethnic discrimination. On the one hand, international legal protection against these forms of discrimination appears to be exceptionally strong. Discrimination on the basis of race is prohibited virtually by every key human rights document. The International Convention on the Elimination of all forms of Racial Discrimination has been ratified by none less than 173 countries. The EU Racial Equality Directive, for its part, has raised the standard of protection to an entirely new level across the EU. On the other hand, racial and ethnic discrimination is still rampant everywhere in the world, including Europe. According to a large-scale survey published by the EU Agency for Fundamental Rights (FRA) in 2009, some 30% of the persons belonging to the surveyed immigrant and minority groups have experienced discrimination on account of their origin in the course of the past 12 months. Other quantitative and qualitative research undertakings have confirmed the high prevalence of discrimination in our contemporary societies. Contrary to popular beliefs and media reports that portray discrimination in terms of relatively rare incidents perpetrated by people belonging to rather marginal extremist movements (neo-nazism, skinheads, extreme right-wing groups), it is argued that contemporary forms of discrimination are recurring, take typically place in the course of everyday life (work, education, leisure), are often subtle (yet significant), and that it is ordinary people rather than extremists that tend to engage in it. Moreover, the study analyses the causes and consequences of discrimination, and concludes that discrimination and the disadvantage it engenders form a vicious circle that is very difficult to put a stop to. The study sets out to analyse the gap between the ideal and the real , the law and the reality. It analyses the contemporary forms of discrimination and how the international and European law attempts to cope with it. The approach is multidisciplinary: research findings from sociology and social psychology are used to analyse contemporary forms of discrimination and its causes and consequences, as well as to assess the effectiveness of the different possible countermeasures. Ordinary methods of legal interpretation are used to examine the current legal response to discrimination. The study concludes that one of the key reasons why the legal protection offered by the international and European legal instruments is not effective is that it relies rather exclusively on an individual litigation based model of enforcement. This model is not particularly effective, because people who experience discrimination face many different hurdles in bringing legal action, in particular with respect to proving their cases. Indeed, only some 18% of the victims of discrimination report their experiences to the authorities or at the organisation where the discrimination took place. Overall, the study argues in favour of a need to engage in active policies for the promotion of equal rights and equal opportunities. It explores tools such as data collection, positive action and positive duties, and analyses how these can be used to promote equality. It moreover analyses and acknowledges the limited effectiveness of also these tools, and concludes that it will likely be the case also in the future that some individuals are equal in law but unequal in fact.
  • Jääskinen, Niilo (Helsingin yliopisto, 2008)
    The Europeanization of Law – Jurisprudential Problems The study’s point of departure is to use the evolution of EU Law as a huge societal experience providing us with insight that enables us to test the tenability of the basic theoretical constructions of analytical legal positivism. The thesis consists of a collection of articles and a summary. The summary forms, at an abstract legal-theoretical level, a rational reconstruction of the themes discussed in the articles. The summary updates the articles and provides a rational “legal-theoretical” reconstruction of the themes addressed in the articles. This reconstruction is based on an orthodox understanding of EU law as an autonomous legal order that is valid as applicable binding law in the Member States but retains its independent character as EU law and is not merged into national law. This entails that Europeanization leads to an asymmetric view of valid law: for national judges valid law is a combination of national and European law; for EU judges, valid law is only EU law. In the summary, the different interpretations that can be given to the concept of Europeanization of law are analysed on the basis of a conceptual framework that makes a distinction between propositional/behavioural and concrete/abstract aspects of law. The framework is inspired by J.W.Harris’s distinction between momentary and non-momentary legal systems and Kaarlo Tuori’s three-level model of law. This leads to a conceptual stipulation that distinguishes between the legal order (concrete/propositional), juridical practices (concrete/ behavioural), the legal system (abstract/propositional) and legal culture (abstract/behavioural.In the context of the legal order the issues discussed include the ultimate rules (Grundnorm,Rule of Recognition) that form the foundations of legal order and the representation of Europeanized law as contextual fields of consistent normative meaning based on both national and European sources. The discussion of the Europeanization of juridical practices addresses such questions as the penetration of European law into national legislation and adjudication. Concerning Europeanization of the legal system the discussion takes up such themes as conceptual divergence between EU law and national law, fragmentation of national law, the metaconstitutional paradox in the EU and the relation between European democracy and EU law.Finally, the chapter on legal culture proposes a hermeneutic understanding of the concept of legal of culture as unarticulated Vorverständniss, and links the discussion of the approximation of legal cultures in the EU to Aulis Aarnio’s theory of legal audiences.
  • Pijetlovic, Katarina (Springer, 2015)
    This dissertation analyses the legal problem posed by the clauses in UEFA Statutes that prevent clubs from unauthorised formation of alternative transnational structures in football. Unequivocally, these clauses constitute restrictions on economic activities of football clubs in their capacity as undertakings contrary to EU competition and internal market laws, in particular, Articles 101, 102 and 56 TFEU that form the core of EU sports law. More contentiously, however, the heart of the analysis lies in the question of justification and proportionality of the restrictions, which could possibly render the restrictive UEFA clauses legal and enforceable. Over the past 20 years, a solid body of case law, legislation and EU policy documents developed a distinct legal discipline that can be referred to as EU sports law and that can facilitate in resolving this question. The essence of EU sports law lies in the custom-tailored application of traditional economic provisions that takes account of the specificities of sport, a concept that has been given constitutional basis in Article 165 TFEU after the Lisbon Treaty amendments. Moreover, the approach to specificity of sport can be traced back to its origins in 1974 Walrave case, and it forms the basis of the crucial notion of sporting exception in the EU law. This study first highlights the problems in the governance of European football with particular reference to power struggles between UEFA and the elite football clubs and the threats of formation of alternative cross-border leagues by the clubs. Thereafter, the study sets out and discerns the principles underlying the application of EU freedom of movement and competition law to legal disputes in the sports sector, contributing several original interpretations of the key sports cases, such as Bosman, Meca-Medina, Bernard, and Murphy. Most prominent contribution of this thesis to the general study of EU sports law, however, is sketching a novel way of looking at the different categories of sporting exceptions through the prism of convergence between EU free movement law and competition law. The quest for convergence revealed a largely streamlined analytical framework in the sporting cases that involve organisational/regulatory rules and rely on public interest justifications. Finally, thus streamlined framework is applied to analyse the question of legality of the UEFA clauses restricting the formation of breakaway leagues. Some of the conclusions that emerge from this analytical process are surprising, in particular those pertaining to UEFA s power on the relevant market for organisational services for transnational club football in Europe.
  • Hellsten, Jari (Helsingin yliopisto, 2007)
    The dissertation comprises four articles which have as a leading theme the relationship between the economic and social factors in EU labour law. The first one, headed On Social and Economic Factors in the Developing European Labour Law discusses EU directives on collective redundancies and transfer of undertakings. The author also criticizes the theory of converse pyramids, according to which the social factors would be generally subordinated to economic factors in EU law. The second article, On the Social Dimension in Posting of Workers , discusses the Posted Workers Directive (96/71) and highlights how it applies within the legal framework set up by the EC Treaty, which also means that a proportionality assessment is applicable to the workers rights under the directive. In the context of the Laval case the author concludes that the ILO obligations of the EU Member States form a valid legal basis for such action in EU law, too, which is based on a combined effect of Article 307(1) EC and general international law. The third article, On the Social Dimension in the Context of EC Competition Law , deals with the interpretation of the relationship between collective labour agreements and competition rules on the basis of the Albany judgment. The immunity of collective labour agreements set up in that judgment is fundamental. The author concludes regarding Article 86(2) EC that it may also cover particular social tasks of general interest. At social security systems this may mean that, as the AOK Bundeskassen judgment shows, certain competition elements included in such systems do not necessarily lead to the application of competition rules. Accordingly, in the Finnish Earnings-Relates Pension Scheme TEL certain inherent restrictions of competition should be regarded as justified under Article 86(2) EC. In the fourth article, From Internal Market Regulation to ordre communautaire social , the author develops a proposal for a new collective labour law paradigm in the EU. It would comprise the leading premises and principles of EU and international labour law: labour is not a commodity (the ILO Constitution), improvement of working conditions (Article 136 EC), respect for EU and international fundamental rights, respect for the European social model (prominent role of collective agreements) and non-discrimination of grounds of nationality. An employer acting against these principles should not enjoy legal protection in EU law. As to the development of collective labour law in the EU, the author adheres to the thesis that in the long run Europeanisation of economy leads to the emergence of a European framework. However, at present it seems to develop essentially through case-law (the Laval and Viking cases).
  • Savola, Pekka (Helsingin yliopisto, 2015)
    This article-based dissertation examines the involuntary role of Internet connectivity providers in copyright enforcement in the EU, and in particular injunctions ordering user-end providers to block access to websites facilitating infringement. The main method is doctrinal legal scholarship supplemented by a socio-legal study of legal policy, seeking answers to the why questions underlying the law. Copyright enforcement measures using providers include website blocking, disconnecting the website or the user, subscriber information disclosure, and notice or graduated response mechanisms. There are also dozens of other options for enforcement, and the IPR holder may select the optimal one(s). In international settings, this can be further optimised by the choice of jurisdiction, the applicable law, and characterisation of the infringement. These provide opportunities for gaming the system . Enforcement proceedings are problematic because typically only the copyright holder and possibly the provider are represented in court. Nobody is responsible for arguing for the users or website operators. The court should take their interests into account on its own motion. Unfortunately, many courts have not yet recognised this responsibility. Even this dual role as both the defender of unrepresented parties and judge is less than ideal and improvement is called for. All the enforcement mechanisms must be compatible with EU fundamental rights, as well as the national ones. A proportionality evaluation procedure is suggested, consisting of identifying the context, the interests of different parties, and applicable principles as well as formulating the evaluation criteria and applying them in a proportionality test. In the test, the legitimacy of the objective, suitability for the purpose, necessity and balancing need to be critically assessed. The underlying goal of copyright enforcement has implications for how the scale tilts. Ineffective enforcement mechanisms can be more easily accepted if the goal of symbolic, educational or politically motivated enforcement is deemed legitimate. However, if the goal is to decrease the impact of infringement, greater efficiency and economically quantifiable results may be required. A proportionate mechanism does not necessarily exist in any particular case. Current enforcement legislation is a product of heavy lobbying by the copyright industry. This has led to the legislators being inundated with copyright ideology and proprietarian bias. In consequence, the legislation fails to take the more general public policy interests and the rights of others into account adequately. The pressure is on rationalising rather than expanding the role of connectivity providers. This background context also calls for a critical approach to interpreting the law. Such an approach might help in achieving more rational and balanced justifications and conclusions.
  • 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.
  • Palo, Sanna (Helsingin yliopisto, 2010)
    This study concerns the criminal regulation of organised crime. The topics discussed in this study comprise the different ways of defining a criminal organisation, international legal instruments applicable to organised crime, elements that constitute an offence under national legislation, and the fact of committing an offence as part of a criminal organisation as a ground for increasing the severity of punishment. This research also examines the grounds for liability laid down in the general part of criminal law, from the point of view of the special nature of the activities carried out by criminal organisations. The central question examined in this paper is whether organised crime is of such nature as to require and justify for criminal law purposes special and more severe criminal regulation, and whether the phenomenon is as uniform and distinguishable from related phenomena as it can be defined in criminal law in a sensible way. This study discusses fairly comprehensively organised crime as a criminological phenomenon, as well as the legal definitions of a criminal organisation. The method of legal dogmatics is mainly used in this study. The aim is to gather together and systematise legal provisions applicable to the regulation of organised crime, to clarify their mutual connections and content as well as to make recommendations for their interpretation. The aim is also to create new concepts, and new ways of analysis to improve the comprehension of relevant issues. In order to consider various options to interprete the regulation of organised crime, the preparative works of national Acts, the requirements and objectives laid down in international instruments concerning the regulation and the application of such regulation by courts are carefully examined in this research. The research material includes over a hundred judgments, mainly issued by courts of first instance or courts of appeal. This research discusses the regulation in force as well as the criminal law theories in the background, but not too strictly based on the systematics of national law. Organised crime is not, from a legal point of view at least not in Finland a systematically structured entity, which would as such create an interesting basis for the examination of the research questions or the evaluation of the functioning of the regulation. The need for regulation and related options are thus also considered from the point of view of criminal policy, criminal law theory and comparative law. It is considered in the study that organised crime is an especially dangerous phenomenon of such nature as to justify the application of specific criminal law solutions to tackle it. When tackling the phenomenon, focus should be put on identifying its special nature as a phenomenon relevant to criminal justice, avoiding however exaggerated rhetoric, which has sometimes interfered with the discussions. It is essential that a criminal organisation is a dynamic, multidimensional, ongoing and structured entity, which involves several participants, who play different roles and interact with each other. The following division into two aspects plays an important role throughout the study: creation of the basis for the operation of a criminal organisation, and individual offences. Creating the basis for the operation aims to build up the operating environment for future criminal activity, and barriers to criminal investigation. In relation to this aspect, the legal issues are related to the legitimacy of criminal liability at the early stages of crime when concrete harm to private or public interests has not yet taken place. The aspect of individual offences is related to the stage in which a criminal organisation starts to prepare and commit individual offences in practice. A major problem in the existing legislation is that criminal law has various definitions for a criminal organisation, whereas it would be advisable to only have one. The criminal regulation of organised crime has been adopted over tens of years, and some provisions are inconsistent with each other. For this reason, it would be appropriate to make an overall assessment of the regulation. For example, the grounds for qualifying offences in relation to committing an offence as part of a criminal organisation are inconsistently linked with certain crime types, not taking consideration of the fact that organised crime is increasing in the field of financial crime. Furthermore, the requirement that a criminal organisation must have a hierarchical structure should be reassessed. In fact, it seems to be an additional criterion set at national level, restricting in Finland the application of the international legal instruments laid down to regulate organised crime. In addition, firmer grounds for liability concerning the leader of a criminal organisation should be established. The subject of this study is a topical issue, as the Council Framework Decision 2008/841/JHA on the fight against organised crime is being implemented by the Member States, including Finland. Therefore, we in Finland also have to consider which measures must be taken to comply with the provisions of the Framework Decision.
  • 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.
  • Wikberg, Olli (Helsingin yliopisto, 2009)
    The thesis leniency v. kartellit deals with anti-cartel activities within the European union. The main view is that of the European Commission with high emphasis of national (Finnish) and US view and procedure. The thesis contains of two parts. The first part is about the general legal and economical framework regarding cartels and various methods to detect and punish cartel conduct. The latter part deals in detail with leniency programs of both European Commission and Finnish competition authority. The legal background of US antitrust law regarding leniency is included as well.
  • Utter, Robert (Helsingin yliopisto, 2007)
    There are many ways in which a society can define its relationship to the surrounding environment. Opinions vary from one member of society to the next and quite often in conversation it is imaginable that one might allude that questions of good or bad, or better or worse environmental quality are matters of taste and policy, but hardly a subject for serious analytical legal debate. Nonetheless, even a superfluous glance at law books, published case law, or juridical literature seems to indicate the contrary. Environmental quality is at the heart of many legal disputes, and references to the relevance of what the standard of environmental quality should be in a particular case are abundant. Therefore one can pose the question: When and how have statements of the requirements for environmental quality suddenly elevated into the realm of juridical discourse? In this particular study, which is of a jurisprudential nature, this is the pivotal question. With recourse to the theory of speech acts and what could be entitled its jurisprudential offspring, an institutional theory of law, it is possible on a theoretical level to construe an ideal umbrella concept, which in this particular context has been christened the environmental quality norm. This concept is the fundamental model upon which the idea of a normative environmental quality is developed and, according to the underlying argument of the entire thesis, in essence forms the whole structure, function, and logic of all legal regulation by man as to the relationship between him and his surroundings. An environmental quality norm is divided into two sub-norms, the institutive norm and the consequential norm. The first institutionalizes a circumstance or function in the environment, while the second defines the repercussions of interference, be it factual or potential, with the institutionalized circumstance or function. This particular research has focused mainly on the institutive norm, which is the more interesting from an analytical point of view, the consequential norm being of particular interest in debates concerning the choice of environmental policy instruments and arguments pertaining to efficiency. The envisaged theoretical model of the environmental quality norm finds its kinship in regulation relating to nuisance. Many of the central ideas on nuisance developed by the legal minds of past centuries can be transformed, with some alterations, into contemporary legal dogmas. Equipped with these tools, contemporary environmental law has been analyzed in substantial parts of the thesis. The results indicate a clear leaning towards the fact that contemporary environmental law, i.e., basically any legal instrument regulating the relationship between man and his surroundings, is indeed structured upon the very idea embodied in the abstract environmental quality norm and its two components, the institutive norm and the consequential norm.
  • Hirvonen, Ari (Helsingin yliopisto, 2000)
  • Oja, Simo S. (Helsingin yliopisto, 2011)
    The use of animals in scientific experiments tends to arouse strong emotional reactions among the general public, the most essential concern being the pain and suffering they cause. It is felt that suffering inflicted on other beings, including animals, is not morally acceptable. Is the function of a researcher who uses animals morally acceptable and beneficial for humans and animals? May such a researcher him/herself decide what animal experiments he/she can perform or should some outsider have the right to decide what kind of experiments a researcher can or cannot perform? The research material comprises the legislation of Finland and that of some member and non-member states of the European Union, together with European Union directives and pertinent preparatory parliamentary documents. The author has likewise studied the vast literature on animal rights, both pro and contra writings and opinions. The opinions of philosophers on the moral and legal rights of animals are markedly conflicting. Some strongly support the existence of rights, while others totally refute such an opinion, claiming that the question is only of the moral principles of man himself which imply that animals must be treated in a human manner. Speaking of animal rights only tends to muddle ideas on the one hand in philosophical considerations and in legal analyses on the other. The development of legislation in Finland and some other member states of the European Union has in principle been similar. In Finland, the positive laws on animal experiments nowadays comply with the EU directive 86/609/EEC. However, there are marked differences between member states in respect of the way they have in practice implemented the principles of the EU directive. No essential alterations have in practice been discernible in the actual performance of animal experiments during the decades when legislation has been developed in different countries. Self-regulation within the scientific community has been markedly more effectual than legislative procedures. Legal regulation has nevertheless clearly influenced the quality of breeding and life conditions of experimental laboratory animals, cages for example being nowadays larger than hitherto. EU parliament and council have now accepted in September 2010 a new directive on animal experiments which must be implemented in the national legislations by January 1, 2013.