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  • Juutilainen, Teemu (2015)
    This study seeks the optimal way to promote compatibility between systems of proprietary security rights in Europe. The focus is on security rights over tangible movables and receivables. Compatibility is understood as the absence of cross-border problems, notably uncertain enforceability and unexpected loss of proprietary security rights, or as the availability of workable solutions to them. Current cross-border problems mainly concern enforceability of proprietary security rights against third parties, including a security-provider debtor s other creditors on insolvency. The study organises the concrete means through which compatibility can be promoted into four main groups, or approaches . These are a centralised substantive approach and three gentler approaches , namely a centralised conflicts-approach, a local conflicts-approach and a local substantive approach. Means within the centralised approaches can be introduced at European Union level, and means within the local approaches at Member State level. The substantive approaches seek to eliminate diversity by unification or harmonisation of substantive law, whereas the conflicts approaches mainly rely on private international law. The study introduces and defends the view that current circumstances call for an integrated approach, which attempts to combine the advantages and avoid the disadvantages of all four approaches. The feasibility of an integrated approach can be confirmed, and its content determined, only by way of a division of labour between the four approaches. This requires choices between the concrete means within each of the four approaches. To guide that division of labour, the study proposes a set of objectives with a view to capturing the essence of what can be regarded as desirable development towards greater compatibility. The objectives are: foreseeability, derived from the economic functions of proprietary security rights; responsiveness, derived from certain evolutionary aspects of the law; and division of unforeseeability costs, derived from a transnational conception of justice. Importantly, the tension between foreseeability and responsiveness gives rise to a theory of how to reconcile the need for certainty in credit markets and the more general need for the law to adapt to different and changing economic and social circumstances and value choices. The set of objectives provides criteria for choices between the concrete means within the four approaches. If the proposed objectives are accepted, the choices guided by them can be taken as the optimal way of promoting compatibility, which completes the research.
  • 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)
  • Pere, Tuula (Fourth Life Publishing, 2015)
    PROTECTED, TOLERATED OR SANCTIONED FREEDOM OF SPEECH? A legal-historical study on the impact of the social and cultural shift of the 1960 s and 1970 s on the limits of the freedom of speech in mass communication in Finland. This legal historical study looked into the impact of the social and cultural shift in the 1960 s and 1970 s on the limits of the freedom of speech in the Finnish mass media as it was exercised by the press, radio and television. The limits of the freedom of speech were considered in the broad sense of the term, with focus not only on legal regulation and self-regulation but also on the actual limits in exercising the freedom of speech. Mass communication during the shift was represented by strongly opposing ideologies, and it was utilised both in supporting the prevailing hegemony and in toppling it. Mass communication took to supervising the powers of other forces, becoming a social influence a fourth estate even, in some people s view. After the war years, the Finnish society had been rebuilt in a joint effort, improving the situation of its citizens by means of social, health and educational policies and by specifying the practices of the labour market. However, the actual social and cultural shift did not take place until the 1960 s and 1970 s and had to do with the changes in the economic and demographic structures and the emergence of the baby-boom generation as active citizens. Aside from material good, a wider population could now benefit from higher education, which enabled them to climb the social ladder and thus provide them with more influence. The welfare state developed hand in hand with the democratic opportunities of the citizens. A citizen had become interesting both as a voter and a consumer. The volume and technology of communication developed significantly, bringing about a new climate of opinion, which changed people s ideas about the appropriate limits of the freedom of speech. To analyse the judicial shift under study, a contextual legal historical approach was employed. Owing to the nature of the research at hand, connections to the different fields of law and the fields of science are manifold. The study, which falls into the field of law, has points in common mostly with the perspectives of the studies of social sciences, cultural history and social history and history of ideologies. The data gathered from the subject of study have been analysed by linking together previous findings in rarely seen ways. The analysis focused primarily on the national level. The domestic phenomena were closely linked with the equivalent developments of other Western countries the Nordic countries in particular. Moreover, comparisons were made with the developments in the United States, as they influenced the Finnish society as well cf. the peace movement, the women s movement, racial issues, the increasing activism among youth, and the commercial use of the freedom of speech. On the other hand, the international situation of the cold war era, the political pressure coming from the Soviet Union, and the phenomenon of finlandisation, had an impact on the speech and mass communication in Finland. The changes in the Finnish mass communication environment during the shift involved the structures, operating conditions and media contents alike. The transformed attitudes were manifested both in the discussed topics and the manner in which they were discussed. There was an increase in the diversity of opinion, the differences of opinion came to a head, and the media were subjected to both internal and external pressure. Mass communication was actively involved in the social development. Tabloids brought their own flavour to the opposing interests in mass communication, managing successfully to turn the voyeuristic and sensation-seeking behaviour of people into profitable business. As the research progressed, it became evident that if it was still possible to discern some sort of collective idea of the freedom of speech with the advent of the 1960 s, this became increasingly difficult once the shift got properly underway. The old boundaries were pushed both in the political mass communication and politically-oriented entertainment. On the European scale, the Finnish television system was from the very beginning a unique and curious combination of both ideological and commercial elements and players. The coupling of the commercial media with the parliamentary-controlled Finnish Broadcasting Company (Yleisradio) was a difficult political issue right from the early days of Finnish television. In the era of Reporadio, (a pejorative nickname referring to the President of the company at the time) television, the newcomer in the electronic media, brought forth leftist mass communication and entertainment. This was offset by the American-oriented worldview of commercials, series and films. The operating environments for exercising the political freedom of speech and the commercial communications saw a rapid transformation. Finland s location at the interface between the East and the West was also manifested in how two opposing ideologies collided in the Finnish mass media. At the core of the freedom of speech in mass communication in the social and political sphere of mass communication there was a tough ideological battle going on, with the leftist orientation and the even wider bowing to the East not uncommon during the era of finlandisation strongly represented. Besides the leftist party papers and various ideological papers, the leftist tendencies in the press were also represented by a group of radical reporters within the mainstream press. The new practices of mass communication, and breaking the old boundaries in the spirit of a cultural shift, sometimes caused disapproval and backlashes in all areas of communications. Offences against religious and moral beliefs and patriotic feelings became the topic of hot debates and were discussed by the various bodies controlling the use of words by mass media even in the courts of law. The transformed society was coloured by an array of opinions, and the interpretations as to the limits of the freedom of speech varied greatly. New demarcations and supportive regulation thereof were called for. The legal regulation as to how the mass media exercised the freedom of speech did not essentially change during the period under study, leaving the effects of the changes on the everyday life of mass communications rather insignificant as a whole. As for self-regulation, the mass media and advertising aimed proactively and voluntarily to act appropriately in the media. Despite long preparations, numerous law initiatives fizzled out or were only implemented in the decades to come. However, the effort put in the preparation made a difference in the political life and public debate of the era. Advertising was subject to harsh criticism particularly from the left wing and the consumer movement, forcing the legislature and the self-regulatory norms to tighten up, particularly in alcohol and tobacco advertising. Legislative means were also employed for better protection of privacy threatened by the tabloids. The factors most affecting the boundaries of the freedom of speech were seldom discernible in regulatory actions. The actual freedom of speech exercised in mass communication was in some cases wider than the formal regulation, which trailed behind, while in some cases narrower, due to practical operational preconditions or external pressure, for instance. In comparison with the past, freedom of speech as a whole flourished relatively freely, despite the fact that the regulations were not loosened or modernised. It was more about a greater flexibility and tolerance of control and decision-making which aimed to facilitate the releasing of shift era pressures. On the other hand, the political restrictions and self-censorship due to the pressure built up during the period of finlandisation clearly limited the freedom of speech in mass communication.
  • 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.
  • Miettinen, Samuli (2015)
    How is EU criminal legislative competence regulated after the Lisbon Treaty? The European Union has always had powers which affect national criminal law. Classic internal market judgments consider whether national criminal law measures are justified restrictions of freedom of movement. The Union s direct legislative powers in this field have developed more slowly through international agreements, Treaty revision and the case law of the Court of Justice on implied powers. This study asks what powers have been conferred on the Union in the field of substantive criminal law and how the exercise of its powers may be reviewed after the entry into force of the Lisbon Treaty. The questions raise a wide range of issues relevant to EU criminal law, but also to EU constitutional, administrative and institutional law. A state-centric view of European integration holds that EU criminal law powers were framed to preserve core areas of national sovereignty. Scholarship in the field of EU criminal law is often ambivalent or critical of centralized powers in this field. Addressing the Union s competence creep was at the heart of constitutional reforms incorporated by the Lisbon Treaty. This sentiment explains some unusual features of the field after those revisions: the emergency brake , the special position of the UK, Ireland and Denmark, limits to Court of Justice jurisdiction, the unanimity requirement for states participating in the European Public Prosecutor s office, more sensitive ex ante subsidiarity control, and limiting express criminal law powers to directives. Nevertheless, these limits are constructed from the reference point of EU institutional law. The survey of those elements shows that the foundations of these structures are unreliable. If codification was intended to limit creeping competence , the framers have failed. Case law of the Court of Justice of the European Union after December 2009 suggests that Article 83 TFEU, or even the complete set of legal bases in the Union s area of freedom, security and justice , is not an exhaustive codification of the Union s criminal law powers. The central question in the calculus, the Court s rules on choice of legal bases , has been susceptible to creative drafting and suffers from weak judicial oversight. Legislative practice suggests that the new safeguards can be sidelined in this process. Thus, the central, and important debates in EU criminal law on the meaning of specific concepts like minimum rules , what crimes can be included in the 83(1) list, and how the European Public Prosecutor should operate may be gradually sidelined by the incoming tide , or at least creeping competence in other estuaries. At the same time, Member States cling to pre-Lisbon practices that restrict the exercise of competence but which seem disconnected from the post-Lisbon legal framework. A detailed examination of this field finds anomalies in the external relations law of the Union, where pragmatism prevails. Small elements that have criminal law implications may be included within Union powers where express internal competence is doubtful. In others, declarations of competence appear to reserve powers to the Member States that the Union could lawfully exercise. The Court now accepts ancillary provisions with criminal law relevance in mainstream measures that do not offer the safeguards of the express criminal law provisions. This is demonstrated by analogy with the case law on issues in the area of freedom, security and justice . Thus, social security coordination measures can be based on the free movement provisions, criminal law obligations may be part of the common commercial policy, and agreements on the treatment of suspected pirates may properly be concluded as part of an agreement that is exclusively Common Foreign and Security Policy. The Court even allows the EU legislature to predetermine the success of any legal challenge because it relies primarily on textual evidence in recitals to determine the aim of the legislature. Thus, measures establishing information systems and exchange mechanisms concerning road traffic offences are measures of transport policy, not measures concerning cooperation in criminal matters, and data retention is an internal market measure. These judgments have surprised academics, national governments, and even EU institutions legal services. Questions also arise as to the effectiveness of the new safeguards even when they are not circumvented. The emergency brake may lead to consensualism, but it is not pulled when a Member State position that is presented as a red line is ignored. The pleadings of the opt-out states in key cases suggest that national governments are not policing their opt-out. National parliaments rarely raise formal subsidiarity concerns. Intervention is rare even if an EU proposal raises constitutional issues and overrules significant policy choices in national criminal law. National policy choices may be legitimate even if the Union has the technical capacity to overrule them. National criminal law scholars often argue that integration in criminal law will come at a high personal cost to the victims of that policy unless appropriate safeguards are developed. The Court of Justice has struggled to distinguish between criminal and civil rules in the European Union constitutional system. Instead, it has developed institutional safeguards that require, as far as possible, democratic decision-making. It has also begun to use fundamental rights, and in particular the Charter of Fundamental Rights, to test the legality of Union action. Thus, whilst its standard of review has been criticized in the past, the findings suggest the Court may be better placed to cope with the increasing trend to treat de facto penal law as administrative rules than the corpus of EU judicial review literature suggests. This research has used standard legal research methods but combines these with an element of the law in action in the field of EU transparency law. During the research, it became clear that the key research questions required material that had not been published. In order to study the drafting processes, the study sought and obtained series of documents that were not originally released for public use. These include legislative negotiation documents, legal opinions of the legal services, and even the pleadings of Member States and EU institutions in key constitutional law cases. One document was released through litigation; another is pending litigation. Both cases raise novel points in transparency law that may have wide-reaching consequences on the nature of the EU criminal legislative process. To what extent should it be open to public scrutiny? Should the Union consider strictly defined conferral or procedural limits to the enumerated powers? The history of constitutional limits is that they are circumvented at the first opportunity when a crisis presents itself. It is possible to conceive some which are more difficult to ignore than those which appear to have buckled under the strain of post-Lisbon practice. However, when limits are drafted in a strict form, this can later cause constitutional contortions that call into question the rule of law. Instead, the present criminal competence control has been effectively proceduralized: particular steps must be taken, but their review is likely to be unintrusive or sympathetic. More legal research is required in the pre-legislative stage, even to understand the nature of competence control. Debates in poorly studied legislative forums are likely to shed great light on the Union s constitution: what happens .
  • Juurikkala, Oskari (Helsingin yliopisto, 2015)
    The study investigates the legal and regulatory aspects of credit default swaps (CDSs), a controversial financial transaction that functions as a type of credit risk insurance. Regarding their legal characterization, it is found that CDSs should normally be classified as insurance contracts unless such classification has been specifically excluded by legislation. It is incorrect to treat them as financial securities, because CDSs are strictly bilateral contracts that can be traded in secondary markets only improperly through novations. Despite their name, their classification as swaps does not correspond to the standard financial meaning of swaps. Recent legislation has broadened the category of swaps to include these transactions in some cases, but the outcome is even more confusing in terms of legal doctrine. Regarding regulatory policy, it is found that the problems created by CDSs should be tackled by a combination of regulatory strategies. At present, the principal regulatory framework is the industry self-governance architecture designed and controlled by the International Swaps and Derivatives Association (ISDA); despite its many weaknesses it also has advantages, which might be harnessed through co-regulation. In terms of transparency regulation, the post-crisis regulatory reforms have moderately reduced the opacity of the CDS market, and increased disclosures would probably fail to address the main problems associated with CDSs. Compulsory central counterparty (CCP) clearing has acquired prominence through the post-crisis regulatory reforms; it is however unlikely to work well for CDSs, which are functionally not swaps but credit insurance, so that their risk profile is asymmetric and involves significant fat tails and macroeconomic correlation. In the future, the most promising alternative is to apply the principles of credit insurance regulation in a way that addresses the peculiar concerns raised by CDSs. Targeted protection selling limits might be applied within the post-reform regulatory scheme that covers CCPs and compulsory collateral requirements. Targeted protection buying regulation is also an option, and the recent European short selling regulation provides a useful test case that will be studied empirically in order to evaluate its effectiveness and costs.
  • 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)
  • Ylhäinen, Marjo-Riikka (Helsingin yliopisto, 2015)
    The problem of this research is the critical tension between the legal principle of protection of the employee and the changes that has occurred both in society and in the production process. Designated as precarisation, the said changes appear as changes in the production process, in the ways in which work is organized, in what the work substantively consists of, as well as in the forms in which work is conducted. Responding to these changes is important for the materialization of the principle of the protection of the employee. Crucial for this response are the preconceptions concerning the workplace operational environment as well as one s understanding of the notion of work in labour law. These are inbuilt to labour law as a branch of law, to its general doctrines as well as to the ideologies that work in its background. Labour law takes form in a critical tension between the interest of production (its smooth flow) and the interest of protecting the worker. Practice of labour law (case-law) reproduces our notion of the normal work together with its background assumptions. These assumptions involve a certain idealization of the wage-earner society. The phenomenon of precarisation brings critically visible the boundaries of that society, which seems to have been both ideal and normal at once. Precarisation poses serious questions to labour law thinking and its principle of the protection of the employee. Two discourses emerge from the case-materials: discourse on (dependent) heteronomous work and discourse on business activity. In the traditional discourse of heteronomous work, labour law purports to protect contracted workers and employer s business is understood as durable and ongoing process. Traditional discourse is built on the tension between business activity that is continuous and workers who need protection. In the rival discourse appears an image of the employer as a victim to the constant variation of business conditions and to the ensuing insecurity. Employer is viewed as an administrator of irregular production processes, not as someone who exercises power. Left at the mercy of the fluctuation of conditions beyond their will, employers will be no longer seen as wielding power in the way traditional labour law assumes. As long as the background assumption of a continuous process of production holds the principle of protection of the employee will waver. The theorethical and methodological framework of the thesis is three-dimensional. Firstly labour law is positioned in the context of continuously changing, precarious society. Secondly labour law is observed as juridical discipline which is constructed through the works of labour law scholars This dogmatic disciplinary system forms the normative lenses that are internalized in the habitus of layers. These lenses also reflect the underpinning ideas and ideologies that work in the background of labour law. Thirdly the juridical praxis of labour is analyesd using cases concerning atypical employment as material. The speech in these cases form different kind of images of work, business, employee and employer. The different images are part of two differing discourses, one that is called the dependent work discourse and the other that is called the business activity discourse. Both discourses reflect and re-produce the images typical in labour law an in wage- earning-society. The business-activity discourse that has it s point of refrence at the edge of labour law thinking also reflects the priority of employers prerogrative and as such forms the point wehere the precarious society steps into labour law.
  • 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.
  • Ryynänen, Juha (Edita Publishing Oy, 2016)
    The purpose of this study is to answer the following question: How do changes in a construction project affect the contractual relationship between employer and contractor? Traditionally, the contractual balance has been seen as a static equilibrium between reciprocal rights and duties as set forth by the parties at the time their agreement commences. For example, in a sales contract the seller and buyer determine the balance between goods sold and sales price at the time the contracts commences. The traditional view of contractual balance is best suited to a short-term contract, which is agreed under the assumption of perfect information. In contrast to a sales agreement, a construction contract is typically a long-term agreement which is incomplete at its birth. A construction contract is typically subject to changes (changes in works, costs and/or timing) that occur during the construction project after the date the agreement commences. Some of the relevant changes result from unexpected changes in circumstances over which the parties have no control, but some are under their control i.e. variation orders given by the employer. Regardless of its origin, a change may have an impact on works (including impact on the scope, timing and order of the works), contract price and/or contract time. In this study works, price and time are described as the dynamic components of a construction contract. This study proposes a model of contractual balance based on an equilibrium between the dynamic components mentioned above. Changes and the contractual balance are managed through rules of completion. The rules of completion can be divided into primary and secondary rules of completion. The primary rules of completion include those rules agreed to by the parties in the contract, taking into account the limitations of mandatory rules of law and good building practice. The secondary rules of completion apply to situations not covered by the primary rules of completion. This study identifies four secondary rules of completion: the in dubio contra stipulatorem rule, the in dubio minimis rule, the effectlessness rule (fin. vaikutuksettomuusolettama) and the proportionality rule (in Finnish suhteellisuussääntö). The rules of completion and their implementation are discussed in detail, taking into account general terms of contract, especially YSE 1998.
  • 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.
  • Hannuniemi, Anja (ei ole vielä painettu, 2015)
    Parents Mental Disorders and Parental Alienation in Custody Disputes. A Medical Legal and Legal Sociological Study. The aim of the thesis is to find out solutions for a better management of custody disputes. Several studies show that children in especially high-conflict custody cases suffer in various ways and also permanently of the high conflict. The main recommendation to improve the system is a law-based psychiatric evaluation of parents when the dispute is at risk of escalation. The thesis consists of four articles and the summary. The articles are written about the problems present in high-conflict custody disputes; the parents mental disorders and their proneness to alienate their children from the other parent. To study the circumstances in the litigating families and the proceedings an empirical research was performed by getting information about court cases, in which the other parent has tried to get an enforcement of a court order concerning his/her access to the child. Court decisions were supplemented with other kinds of decisions concerning the same children and their parents, especially custody decisions, and information about the family relations, occupational status, compulsory care and other social services, mental health, debts, criminality, and deaths. The original number of the cases are 114, but they were reduced to 103 as non-custody cases were left away. The total time of the disputes are counted from the beginning of the first proceeding to the end of the last one. 103 cases are divided in three subgroups: 1) Short disputes (41) with a duration under two years, 2) Middle lenght disputes (36) from two years to five years five months, and 3) Long disputes (26) from five years five months to twelve years. Results: 1) 40 percent of all litigants suffer from a psychiatric disorder or substance abuse. The average prevalence of mental disorders in populations is considered to be 20 per cent, and the litigants exceed it twofold. The number of men and women with disorders is the same, but women have about two times more severe and mood disorders than men and men two times more substance abuse than women. 2) In the long disputes litigants have nearly as much disorders as the litigants in the short and middle lenght disputes counted together. The litigants in the short and middle lenght disputes have nearly same amount of disorders. 3) Of all 103 families 69 (67 per cent) are clients of child protection; in the long cases all exception one family. After the dispute has continued four years, practically all families are clients of child protection. About 20 per cent of the children are taken in compulsory care. 4) Litigants have also much umemployment, unability to work, economic and housing problems,and the number of litigants with these problems grows as the disputes get longer. 5) Proportion of litigants with alienating behaviour or some other attitude problem harming children ranges in different kinds of disputes from 74 to 88 per cent in women, and from 43 per cent to 88 per cent in men.
  • Ranta, Jouni (Helsingin yliopisto, 2001)