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  • Leino-Sandberg, Päivi (Helsingin yliopisto, 2005)
  • 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.
  • 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.
  • Bräutigam, Tobias (2008)
    The doctoral dissertation deals with conflicts between access rights to public information and other legally protected interests, such as trade secrets or national security in comparative perspective. While the dissertation develops an own approach to comparative law, it focuses on the German Informationsfreiheitsgesetz (IFG) in substance matters. The German IFG is contrasted with two other laws, namely the Finnish Julkisuuslaki (JL) and the Freedom of Information Act (FOIA) of the USA. After a brief introduction, a methodological chapter takes up the most essential question of comparative law: How to compare? The methodology is developed by analysing two challenges of comparative law. The first challenge is presented by what I term the off-the-shelf critique, i.e. a critique that applies to all comparative legal monographs. Comparing law can never fully succeed because it can always be attacked for being too shallow or for including too many details. There is no happy medium. The second critique is more fundamental and denies the possibility of meaningful comparison at all, mainly for epistemological reasons. This doctoral dissertation deals with those problems in the following way. To begin with, access to documents is defined narrowly. Secondly, the legal culture is seen as a key to understand different freedom of information laws. Further, before starting to compare, a neutral description of the Act in question is done. Fourthly, throughout the work I point the reader to the idiosyncrasy of the legal terms of different jurisdictions by e.g. marking the terms in italics. Finally and most importantly, I will concentrate on conflicts of different legally protected interests. The FOIA of the USA and the Finnish JL are analysed according to this methodology. Both chapters start with an analysis of the legal culture influencing access to information and go on to outline the main characteristics of the respective Acts. The main part of those chapters is devoted to an analysis of five central conflicts. Those conflicts concern national security, procedural rights, privacy, trade secrets and challenges of administrative procedure with access rights of citizens. The last chapter applies the same methodology to the German IFG, and compares this law with the findings of the FOIA of the USA and the Finnish JL in order to answer the question whether the German act is up to the international standard. In the dissertation, freedom of information laws are classified in three categories. While the FOIA and especially the JL have evolved to the highest categories, the IFG has several weaknesses that make it poorly fit for the information age.
  • Similä, Jukka (Helsingin yliopisto, 2007)
    This study based on regulatory theory aims to provide new insights on how Finnish air and water pollution regulation has worked. Which features make pollution regulation effective and efficient? Does pollution regulation foster technological development? Are new policy instruments replacing traditional regulation? What should the role of European-wide standards be? How could regulation be improved? These and other regulatory issues are examined. Due to the preparation for EU membership, the amount of annually adopted environmental legislation peaked in 1994. However, excluding the impact of EU membership the amount of environmental legislation continues to increase. The rate of legislative change has been rapid. Only a few pieces of legislation in force were adopted prior 1990 and about one third is less than 5 years old. Most of new legislation relates to traditional regulation, although there is more legislation than before on economic instruments and other new policy instruments. However, the impact of new instruments on the total volume of legislation is slight. There is no evidence to suggest that the relevance of new policy instruments for the achievement of policy goals exceeds their relative amount. The relative role of environmental agreements not based on new legislation is even smaller. This does not support a significant shift towards new policy instruments as often suggested in the literature. About 30 % of the environmental legislation between 1994 and 2003 was implementing EU legislation. This is more than in most other policy sectors. The most Europeanized environmental policies were waste, chemicals, and pollution control. It is likely that the EU impact is greater than the relative amount of implementing legislation suggests. Most substantial changes of environmental regulation are affected by EU policy. In the long run, impacts on technological development are crucial for environmental policy. This study shows that water pollution regulation has often forced the pulp and paper industry to adopt new end-of-pipe technologies. In addition, this, with other factors, has influenced the development of process technologies. Integrated pollution regulation (adopted in 2000) aimed to increase the effectiveness and efficiency of policy. Although the number of regulated units did not increase, the more comprehensive way of regulation improved its effectiveness. After the reform new opportunities to set priorities were also created and used. No impacts based on cross-media effects were observed. The fact that elements of the previous sectoral system were transferred to the new system hampered the achievement of the full potential of integrated regulation. Integrated pollution regulation could be improved. In particular the regulation of minor activities should be made lighter through the repeal of obsolete requirements, development of new control methods and standardization of information gathering. With regard to major activities, the combination of economic instruments and integrated permitting would increase effectiveness and efficiency. The creation of common markets for those developing technologies would foster technological development. However, to ensure efficiency of regulation standard-setting should remain differentiated. The enlargement of the size of regulated unit would make it more efficient. Key words: regulatory theory, policy evaluation, environment, pollution control, regulation, effectiveness, efficiency, technological development
  • Gozdecka, Dorota Anna (Helsingin yliopisto, 2009)
    This dissertation s main research questions concern common European principles of democracy in regard to religious freedom. It deals with the modern understanding of European democracy and is a combination of interdisciplinary research on law, culture, politics and philosophy. The main objective of this research is to identify common European legal principles and standards applying to religious freedom and compare them with standards and approaches in particular states. The bases for the analysis are the principles of equality and religious pluralism. It approaches issues such as the problems of defining religion and the pursuit of religious equality vis-à-vis principles of establishment or quasi-establishment of traditional European religions. In analytical part it critically approaches the commitment of European countries to principles of equality and religious pluralism on examples of selected problematic areas. These areas include women s reproductive rights, problems of blasphemy and hate speech and relationships between religion and education. It evaluates the impact of various legal regulations in Europe and their influence on religious or non-religious individuals. Finally, in the theoretical part the research deals with the sustainable model of democracy in the multicultural era. It evaluates the possibilities for extending the legal system s flexibility towards other legal systems, such as Sharia law. Finally, it joins more general discussion on European values, commitment of European states to these values and further perspectives for European integration on axiological level. The analysis shows that currently European consensus and commitment to values of equality and religious pluralism lacks consistency. Even religion itself is not uniformly understood. The question whether the state should remain neutral towards doctrines and to what degree has neither been approached with sufficient coherence. While traditional Christian religions still enjoy a wide margin of religious freedom, even in public sphere, new religious movements or culturally new religions are often restrained. Without common commitment to European values, the principle of pluralism and equality is bound to be applied selectively. It is important that the model of European democracy adjusts to the conditions of religious pluralism. Without coherence in application of democratic principles and rights, Europe is bound to be plagued by guilty conscience of double standardisation and emptiness of the European soul .
  • 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.
  • Stanikic, Teija (Suomalainen lakimiesyhdistys ry., 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.
  • Mononen, Marko (Helsingin yliopisto, 2001)
  • 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.
  • Koistinen, Jarmo (Helsingin yliopisto, 2012)
    The main aim of the study is to explore the similarities and differences of criminal liability for economic offences which arises from the constituent elements of a crime as set by Russian and Finnish criminal law. As regards the classification of Russian and Finnish criminal law into different legal families, a systematic comparative analysis was designed to take into account the differing social and historical contexts of the legal systems to be compared. The comparative analysis of the constituent elements of a crime shows that the scope of criminal liability for tax offences, bankruptcy offences and money laundering is narrower in Russian criminal law in comparison with Finnish criminal law. This finding consistently corresponds to the theory of Russian criminal law and previous studies on this subject. One of the main distinctive constituent elements of the objective side of a crime is the nature of the consequences caused by an offence. Evasion of payment of taxes and/or charges by an organization is treated as a crime in the case that the evasion has been committed on a large or an especially large scale. Furthermore, unlawful actions in the event of bankruptcy are regarded as a crime if they have caused large-scale damage. Money laundering by a person as result of a commission of crime by that person is a crime when it has been committed on a large scale. When comparing the above-mentioned constituent elements to functionally corresponding Finnish provisions, a substantial difference in the conditions of the consequences caused by illegal economic actions is discovered. Accordingly, only the aggravated forms of actions according to Finnish criminal law would be qualified as crimes in Russia. In both systems, the basic rule is that the illegal economic actions are criminal when committing them intentionally. However, it is argued that in Russian criminal law, the higher degree of awareness of a potential criminal actor should be proved when comparing the conditions of intention with Finnish criminal law. On the other hand, proving a person s full awareness of the nature of illegalities is sometimes impossible in practice. In economic offences, a person s intention is often derived from objectively appreciable matters. The narrower scope of criminal liability for economic offences can be explained by different principles and grounds of criminalization and by differences in the sanction systems. In the study, the Russian administrative offence provisions, due to their repressiveness, are acknowledged as being criminal law from the Finnish point of view. The social dangerousness of actions as the main criteria of a Soviet crime still characterizes and legitimizes the criminalization of certain actions in contemporary Russian society.
  • Kontkanen, Pirjo Kristiina (Helsingin yliopisto, 2006)
    Copyright within university research and teaching Freedom of science is the basic principal at the universities. Freedom of science and copyright are both guaranteed as constitutional rights. Constitutional rights act as principals. When deciding a concrete case one has to chart which rights are applicable and then weight the balance of the rights. When studying copyright one has to take into account also directives and international agreements. National rules on copyright are based on several international agreements and a lot of directives have been given to harmonize national regulations. In principal constitutional rights such as scientific freedom have been ensured and taken into account when enacting copyright legislation. Changes in society and universities, however, create new situations where copyright appear and interact in a new way. When discussing the use of copyright protected material within university research and teaching one has to take into account how university functions have been divided into two sectors and how the principals directing university activities have to accommodate to changing conditions. In order to create more equal ways of handling copyright protected material at the universities and to ensure proper user rights for the university society university policies on copyright as well as a bit more detailed legislation on the relations between copyright and university research and teaching are needed. The present regulations do not ensure the rights of the university society to needed extent but leave too many situations uncertain.
  • Ellilä, Kalevi (Helsingin yliopisto, 2007)
    Public Health-care Claims during the Years 1994-2007 in Finland The aim of the study was to interpret and systematise patients rights. The goal of the claims was to improve the patients health condition or otherwise the use of the health services. The focus of this research is on the public health-care section. The first main problem was to investigate how to prove whether a fault exists among health-care matters. Another main problem was to check how the patients rights were fulfilled. The offices that were examined were that of the Ombudsman, the Chancellor of Justice, the Ministry of Social Affairs and Health, and the Provincial State Office of Southern Finland. In addition, as controls, the Supreme Administrative Court and the National Authority of Medicolegal Affairs were also examined. More precise research problems, in addition to the main questions were: 1. On which general goals are a patient s rights based? 2. Which benefits and disadvantages are connected with the regulation of a patient s rights as a flexible norm? 3. What special questions arise regarding the mutual relations between the acts? 4. Equity. 5. The principle of acting in the patient s favour. 6. The indirect causes of the health claim resolutions. The results: The amount of the health claims dramatically increased. The claimant won his or her case in 25% of the cases. The cases came from only 6 various branches of a possible 50. They dealt, however, with serious cases of patient s rights. The supervision institute proved to be necessary. In addition, it is recommended that the parliament pass an act to unite all various supervisors together and another act to regulate the functions of health claims.
  • Lamponen, Helena (Helsingfors universitet, 2009)
    The main goal of the research is to evaluate the principle on employee protection and employee status in a national level merger and a transfer of an undertaking. The principle on employee protection has to do with the protection of employees´ economic rights, especially the protection against dismissals and changes in employment terms and conditions. It covers measures targeted to increase proactively employee employability. In the case of workforce reductions it covers measures to alleviate their consequences. Employee status is affected by employers´ management right. Employees´ status covers employee influence in company decision-making and information and consultation procedures. Into addition to the relevant EU-company and labour law, the research is based on in the research context relevant laws of Finland, Sweden and the United Kingdom, representing different legal systems and cultures. The research methods are legal sociology, legal interpretation in its prevalent and alternative forms and legal comparison. Also history, business economics and psychology are used. The research is divided into four parts. The first part covers the research framework. The second and the third parts cover the relevant EU and national laws with their evaluation and conclusions. The fourth part covers final remarks on conclusions and the summary. In EU-company law the research is based on the 3rd directive on mergers. In labour law it is based on the directives on Transfers of Undertakings, Collective Redundancies and Informing and consulting employees. The directives and the effects caused by implementation at the Member State level are evaluated. Also evaluated are the effects of Treaty Articles 2 and 136, which are purported to further coherence, sustainable development and employment, having relevance in the research context. Eighty per cent of M&A transactions take place at the national level. They generally lead to workforce reductions. Over 50 per cent, even over 70 per cent of the transactions fail. The research is to answer what can be done at the legislative level to increase the success of these transactions, affecting the scope of employee economic protection and employees´ status. The research is a part of the discussion on corporate governance, having to do with directing and managing companies. Corporate governance is linked with company purpose, general company law principles and management´s duties. In the present research, relevant is the employees´ role in company management. The company law based national level merger procedure has in core to do with the status of the shareholders. They have in the procedure a genuine stakeholders´ status. They participate actively in the adoption of the merger agreement targeted to guarantee their economic rights´ continuation as such. The procedure is guaranteed by decision-making in a general meeting. The company law based national level merger law contains no provisions targeted to employee protection. Employees are outsiders in the procedure, except in Sweden, due to the mandatory board membership. The British provisions on directors´ duties involve however characteristics having applicability in increasing employees´ status in company actions, restructuring included. In the labour law the starting point of the employees´ protection is the continuation of the former employment agreement with its former rights and obligations, taking place by a transfer to the new employer. In Sweden and the United Kingdom, the implementation of the directive on Transfers of the Undertakings, covering mergers, changed the former legal state by acknowledging this transfer and the former employment relationship´s continuation. In the United Kingdom, the practical application has been a challenge. This is due to the common law´s former effects. The implementation has thus far taken about 30 years. Dismissals due to the merger or a legal transfer are forbidden. Dismissals are, however, allowed on economic, technical or organisational reasons entailing changes in the workforce. There is acknowledged a right to affect employment contracts´ conditions´ changes if not substantial in character, into addition to changes taking place in the national framework outside a transfer of an undertaking. Collective agreements in force at the transfer date are transferred; however, not being necessarily applicable after their term has elapsed or a year after the transfer. In all the countries under evaluation employees are affected in restructuring in practise unquestionable management right, affecting the enacted legal protection. With regards to legal transfers, employees´ legal protection is also affected by legal transfer´s criteria. Its determination is outside employees´ powers to affect, the determination´s end-results affecting however the scope of the employees´ protection. Taking also into account the nature and timing of the information and consultation procedures, in Finland and the United Kingdom employees may be evaluated to be participants in restructuring transactions´ consequences. In spite of the general succession inherent in a merger and a transfer of an undertaking and labour law´s protective starting point, the main labour law results of the research can be summarised in core in a claim that from the employees´ point of view restructuring law´s legal effects often in fact equate with those taking place in a company dissolution. The adopted model on general succession is a modified one. The management right connected with the mechanisms of dismissing employees and affecting their level of employment terms and conditions greatly mitigate the employees´ protection principle in the research context at all the levels under evaluation, making it in practice greatly an illusory one. When compared to shareholders in a national level merger, in a share ownership comparable essential changes are equated with legal effects taking place in company´s dissolution. Irrespective of the strong tradition of information and consultation in Finland the practical results in furthering mutual interaction between the labour market parties at the company level have not thus far been convincing. The Swedish labour market culture is strongly labelled by information and consultation practises. The implementation of the EU-provisions on information and consultation enlarged the circle of the affected labour market parties in Sweden. In the United Kingdom, the practical application of the information and consultation obligations have been a challenge, largely unapplied. The central principle of the modern state, its development being guided by legislation, denoting to predictability in the form of legal security, can be evaluated to be largely watered down in areas under research, when evaluated from the perspective of employee protection. On the basis of the research material some positive marks of change are, however, to be noted. The directive on Informing and consulting employees emphasises promoting of mutual trust to promote employee involvement in the operation and future of the undertaking and to increase its competiveness, being followed by an emphasis on co-operation in the national implementation laws. As a mark of change can be mentioned the Finnish model on personnel plans and training and education objectives, emphasising proactive skills development. As a mark of change can be mentioned the Finnish and Swedish models on alleviating the consequences of workforce reductions, emphasising re-employment. The Swedish model is based on companies´ financing, being apt to increase long-term planning in carrying out business. From the company law can be mentioned the directors´ duties in the United Kingdom. In fostering the success of the company for the benefits of its members, denoting to shareholders, into account has to be taken the interests of the company´s employees. In Sweden, there is a mandatory employee representation in a board. Employee representatives participate in co-determination from the stage of planning. Further legislative revisions are still however needed. They unify the corporate governance aspect and the need to increase the success of restructuring transactions. The EU-law and national laws under evaluation are highly reactive in character. Legislation´s proactivity should be increased by emphasising employers´ role and responsibility in steering change, not only unilateral employees´ adaptation. The content of the written merger material should be strengthened. It should cover the transaction´s practical carrying out, its effects on a company´s status in the product-markets and employee implications. Employees´ dismissal protection in restructuring needs strengthening. It can be done by setting limitations on dismissal right and by its monitoring. A proposal done in the former labour law on the principle on information transparency with regards to employees should be acknowledged, comparable to the one applied to share and securities holders. At the EU-level is needed a legislative framework targeted proactively increase employees´ employability in a life-long perspective. The framework should cover all employee groups. At the EU-level is also needed a framework equalling with the Finnish and Swedish models on action plans in furthering re-employment. Special attention needs to be put on the system´s financing and the share of responsibilities between the companies and public power. Employees´ increased status in a knowledge-based production and their inputs´ equality with the shareholders need to be acknowledged. Employees´ equality with other company stakeholders needs to be acknowledged. The basic company law principles need redefinition, also at the EU-level. Shareholders´ obligations with regards to a limited company and its other stakeholders, especially the employees, need to be defined. Especially important is defining of company purpose, its stakeholders, equality principle and management´s duties. Resulting from this reconsideration, employees´ status in a merger procedure could be re-evaluated. They could be granted rights equalling with those of the minority shareholders, covering a right to object a merger´s adoption and demand decision-making in a general meeting.
  • Silaskivi, Vesa (Helsingin yliopisto, 2004)
  • 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.
  • Siikavirta, Kristian (Helsingin yliopisto, 2007)
    State Aid in the Interface of Law and Politics: Environmental Protection as an Example Kristian Siikavirta In this study subsidies are analysed as an instrument for environmental protection. The main focus is on the national legal rules regulating the use of subsidies and also on the actual use of subsidies for environmental protection in Finland. The Environmental subsidies for agriculture are not covered. The aim is to clarify the legal characteristics of subsidies in general and the environmental subsidies in particular. Secondly legal principles found are analysed in order to uncover their theoretical appropriateness as well as their practical effects when working with environmental policy which primary tools are legal oblications given by public authorities. The analysis is based on a functional approach. The chain of activities needed when subsidies are used is developed. It contains following activities namely discovering the problem, setting the targets, choosing the instruments, establishing the subsidy programs, distributing the benefits, monitoring effects and firm level use of the subsidies, and evaluating the effects for future improvement. First this study focuses on the legal rules regulating the establishment and planning of a subsidy program. Secondly is analysed the law regulating the distribution of the benefits to firms by the public authorities. This analysis sheds light on the dynamics between these the seemingly unconnected phases and gives the means to discover the features of good legal rules and regulation. The theoretical background used to uncover the social connections of the environmental subsidies is, in the first instance, the economic theory of environmental protection. That normative theory provides criteria for the evaluation of subsidies as an environmental policy instrument and also for the evaluation of the legal rules and regulation on environmental subsidies. The establishment of actual subsidy programs and set goals can be analysed and explained through some basic ideas from public choice theory and from the related interest group theory. The administrative procedure governing the distribution of subsidies can be analysed by applying the economic theory of administrative law (based on transaction costs) and also by using the principal agent theory founded on the idea of uncertain information between the legislator and public authorities. The common theme of these different theories is the analysis of the decision-making process of public authorities on the different levels of society. The common to that decision-making setting is the question how to build a good environmental subsidy program and how to distribute the funds to beneficiary firms and industries in an efficient and justified way. These theories helps to evaluate the true functioning of legal rules and regulation. This aim could not be achieved through research carried out only using traditional legal dogmatics. The selected versatile theoretical structure offer some new arguments to legal argumentation. In this study subsidies are defined widely as all acts of state or public power which are meant to give persons or organisations positive economic incentives to act according to the legislators will. The European Union legislation, namely the treaty establishing the European Community article 87(1), makes a division in the definition of public subsidies between two subclasses - state aid and other public subsidies. The use of state aid is restricted because of its alleged harmful effects on competition and on welfare. The member states are also supervised by The European Commission. The definition of environmental protection is functional covering all voluntary or mandatory acts by individual persons or firms which prevent or reduce the harmful effects of human activities on nature or on other individuals. According to this definition many energy policy and transportation policy measures are considered as being part of environmental policy. Public subsidies or positive economic measures intended to encourage environmentally sound consumer behavior are considered as subsidies for environmental protection. The first part of the study presents the versatile theoretical foundation used in the analysis. The different strands of economic theory are combined with the different areas of law. The idea of using economic theory in the legal argumentation is here supported by a teleological theory of legal interpretation and an instrumental and functional view on law. From this point of departure the explanation of the law is the need to regulate individual action by defining desired (normative) behavior. Other modes of behavior are deterred by legal sanctions or by rules which raise the opportunity cost of normative behavior. Desired behaviour can also be induced by economic subsidies. In general individual action is seen as rational where rationality is based on individual goals and external and internal motivations. The second part analyses the legal definition of state aid, the European treaty provisions on state aid and the commission s regulation of state aid used in member states. In general, state aid or public subsidies are seen as welfare-reducing act both in legal argumentation and in economic theory unless it is targeted to internalize specific market failures. The normative theory of environmental policy does not support the idea of subsidising environmental protection measures by private firms or individuals and the environmental law has accepted this idea (polluter pays principle). However, European legislation treats state aid for environmental purposes more favourably than other aid mainly because of it s horizontal nature and the constant need to improve environmental quality. The third part focuses on the Finnish environmental subsidies and state aids. The timeframe covers the years 1990, 1995 and 2003. During that time public support for environmental protection in the form of subsidies in Finland has increased both in monetary terms and when individual support programmes or measures are counted. Measured in monetary terms, the trend seems to be rising mainly because of the energy and climate policy. The subsidy instruments that have been used have been changed toward more general measures. Moreover, many new tax subsidies have been created to promote production methods that are environmentally friendly. One reason to changed the aid patterns is no doubt the extensive and restrictive legal regulation of state aid both on the European level and on the national level. The fourth part of this study analyses the law and legal principles that rule the administrative procedures which state aid authorities must follow when giving public money to applicants. This area of law seems to involve many features intended to make individual aid decisions more efficient. At the same time those rules increase the cost of administration and widen the scope of administrative discretion. Together with a limited possibility to appeal and the limited publicity of individual decisions, these features make this area of legislation and administrative action very volnerable to criticism and to even malpractice. The theoretical analysis and the studying of Finnish environmental subsidies and law regulating them shows some legal and practical problems. Individual aid decisions are easily criticized because of the high efficiency requirement of the current law. At the same time, administrative discretion is wide and it seems to be insufficiently ruled by legislation or by the state budget. Furthermore, legal rules oblige public authors to monitor beneficiaries very closely. It is likely that this monitoring turns out to be random because of limited resources. As a result, this widens the power of public authorities. The legal analysis of subsidy programs in this study and the economic analyses that have been made on the effects of various subsidy programs by other researchers mentioned in this study indicate that the environmental subsidies in Finland are mainly used as a strategic tool in the legislative process where different interest groups must be satisfied. However, this does not enhance the efficiency of subsidy programs. State aid and subsidies could function in better coherence with the predominant command and control type of environmental policy. The informative position of the environmental administrators could be improved if the information coming from the aid applications and from the individual decisions could be used to improve the mandatory environmental rules and practices. Nevertheless, there is no indication to this effect in the Finnish environmental subsidies system.
  • Ranta, Jouni (Helsingin yliopisto, 2001)