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  • 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)
  • Kerttula, Timo (Helsingin yliopisto, 2010)
    The importance of private security services has grown significantly during the last few years. Security guards and crowd controllers usually operate in areas where the public has access. Traditionally it has been thought that the responsibility of maintaining public order should belong to the state and especially to the public police. However, private security officers are also taking care of tasks such as these to an increasing extent. There is a great deal of literature concerning the reasons for the growing importance of private security. For example, many scholars have advocated the so called mass private property-theory. According to the theory the explanation for the private security expansion is the rise in the amount of publicly used but privately owned areas. The other explanations concern, for example, fear of crime and terrorism and the proportional reduction of public police resources. However, one must keep in mind that private security is an older concept than the public police. Very little research has been done concerning the legal powers of security officers. The purpose of this study is to examine these powers. Firstly, the goal is to find out under which conditions it has been possible to give public administration tasks to private security services according to the constitutional doctrine. In accordance with section 124 of the Constitution of Finland a public administrative task may be delegated to others than public authorities only by an Act or by virtue of an Act, if this is necessary for the appropriate performance of the task and if basic rights and liberties, legal remedies and other requirements of good governance are not endangered. If the task involves significant exercise of public powers, it can, however, only be delegated to public authorities. In practise, the interpretation doctrine of the constitution defines the limits under which the exercise of public powers can be delegated to the private security employees. Secondly, I have tried to research the limits of the powers of private security workers. Security guards and crowd controllers have got their own special powers but they also use every man´s rights. The difference between them and an ordinary citizen, however, is that private security workers use these powers professionally. The final purpose of this work is to give recommendations to the legislator concerning the way private security services should be regulated. I have used the methods of traditional jurisprudence, interpretation and systematization. The aim of the study in particular has been to create preconditions to more coherent private security legislation. The results of this study suggest that the interpretation of the section 124 of the Constitution has become less strict. In justifications of the Constitution an independent right to use forcible measures is named as an example of significant exercise of public powers which can only be delegated to public authorities. According to interpretation doctrine of the Constitution Committee, it is, however, possible to give the independent right to use forcible measures to crowd controllers when the area of operation is restricted. Correspondingly, the right can also be delegated to security guards under the condition that their powers do not differ significantly from every citizen´s powers. The most important special power given to security guards and crowd controllers is their ability to remove people from their operation area. Crowd controllers also have the right to prohibit people from entering their operating area. According to the study the special powers appear to be quite reasonable. However, regulation concerning people´s right to enter so called quasi-public places should be regulated more precise. The relationship between the special powers given to private security workers and every citizen´s rights appears to be very problematic. Taking into account that security guards and crowd controllers do not use public powers when using forcible measures available to all citizens, the accountability of private security services is in some cases very narrow. When they use these measures professionally and since the limits, for example, of self-defense are looser than they used to be, their powers have features similar to the earlier general powers of the police.
  • Andersson, Heidi (Helsingin yliopisto, 2010)
    This study examines long-distance water transfers, which aim to compensate for the geographically uneven distribution of water. By means of pipe systems, such transfers move large quantities of water from inland waterbodies or major groundwater aquifers to another region to improve water quality or water availability for that region s population or industries. Water transfers are usually motivated by serious local deficiencies in the availability or quality of water. The thesis compares water transfers and related legal problems in the light of Finnish and French legislation. A central question is whether the environmental aspects of water transfers mainly the sufficiency, stability, and purity of natural water resources are sufficiently taken into consideration in these countries regulations. Related to this is also the sustainable development perspective. One objective of the study is to determine the social impacts of water transfer regulations and to determine the relevant causes and effects. The method used in preparing this thesis can therefore be called socio-juridical. It includes a regulation-theory-based and especially a normative research approach in the sense that it aims to identify how water transfer regulation should be designed so that it fulfils the environmental policy goals set for water transfers. Water availability is crucially dependent on who the water belongs to or whether it belongs to anyone and what kinds of usage rights exist. As the study shows, due to absolute or regional water scarcity, not all interests in natural water resources can usually be completely satisfied. One of the study s main objectives is to clarify what efforts to reconcile different interests have been made in creating legislation and in applying it in Finland and France. It is to be hoped that the regulation of water transfers can in the future make use of voluntary agreements, conflict resolution, and self-regulation. The coordination of interests is currently mainly based on the use of regulation instruments, of which the study deals with economic and judicial-administrative regulation instruments. These instruments (statutes, regulations, taxes, etc.) affect human behaviour although their ultimate goal is to conserve and protect biodiversity and nature. The study claims that a paradigm shift is necessary concerning water transfers. Instead of the current sector-oriented habit of examining water transfers, they should be assessed in an interdisciplinary manner combining economic, technical, environmental, and social perspectives. The background is concern, also for future generations, about the sufficiency of water resources and about nature s ability to renew them. Water solidarity is necessary even at the legislative level.
  • Vaitoja, Jari (Suomalainen Lakimiesyhdistys, 2014)
    The subject of this study is the various responsibilities of the parties and the court concerning the restriction and presentation of factual grounds for civil litigation claims and denials. Special focus is placed on grounds that are regulated by mandatory private law rules. The investigation of civil cases is at the initiative of the interested parties, who are obliged to invoke so called facts of law as grounds for their claims and denials. This means they must specify the factual circumstances they wish to be taken into consideration in the judgment. In addition, rules on the preclusion of the grounds for claims impose time based limitations on litigants dispositions. The party s right to present new claims or new grounds for claims may be lost if these are invoked at too late a phase during the procedure. As a result, realizing one s rights in civil procedure is highly dependent on one s financial resources or knowledge of the legal process. In order to reduce the possibility of litigants losing their rights, the judge is assigned the duty of substantive process management. A more precise goal of the study is to research how responsibility for claims based on mandatory private law is distributed between the parties and the judge. In particular, mandatory private law rules are included in labour law, consumer protection law and provisions regulating the invalidity of contracts. Similarly, there are mandatory aspects in provisions for adjustment of unfair contract terms or adjustment of compensation for damage. Substantive process management is usually considered the most important way of moderating the undesirable effects of both preclusion and the burden of allegation. The study concurs with this view but also argues that there are difficult issues connected to juridical control of the activities of the judge, as it is unclear to what degree these activities can be directed or evaluated by judicial norms. Furthermore, it is uncertain whether a party would have effective legal remedies, if any, were the judge to neglect his duties. Moreover, the precise content of the burden of allegation and the conditions under which a party could lose his right to invoke new circumstances are surprisingly wide open to interpretation. In short, the procedural provisions studied in this work are extremely flexible. While they mandate the judge to manage the process, they seem to do little to govern or restrict his use of discretion. The methodology of the study is for the most part legal dogmatic, its purpose being to systemize and interpret the procedural norms. The main questions in this area are, for example, the content of the burden of allegation, its implications for the responsibilities of the judge and litigants and neglect of substantive process management as a grounds for not precluding new claims or new grounds for claims. Equally important are the extent of the judge s responsibilities and the legal consequences of their default. The study nevertheless examines a substantial amount of legal policy and even legal theory, due to the open nature of the problems investigated. The study includes a detailed discussion of the reasons for and against the moderation of the burden of allegation on factual grounds based on mandatory rules (chapter 6). Arguments for and against the justification for material management of the case are carefully analysed in chapters 7.5 7.7. In this analysis arguments based on the rights of the litigants play a decisive role. The distinction between questions of fact and questions of law is examined in chapter 3 as the fundamental basis for the burden of allegation. Chapter 7.3 asks, within the framework of the theory of rights, whether it is reasonable to say that parties have rights in relation to a judge s responsibilities in the area of substantive process management. Chapter 7.4 deals with the question of how a judge s activities restrict or advance the freedoms of the litigants during the procedure or in their contractual relationship. The relatively passive attitude of judges is often still defended by means of an analogy with freedom of contract in private law. A discussion on the distinction between rules and principles of law is shortly introduced in chapter 2. In this study, principles of law are seen as a way to structure the relations between individual rights and collective interests. The study argues that with the help of principles of law, the individual rights of litigants should be defended against collective interests. In addition, they are seen as a way of extending juridical evaluation to areas where the authorities would otherwise have wide discretion. Chapter 3 opens with the claim that in some circumstances at least the judge should be duty bound to ensure that a party has the opportunity to invoke factual grounds even if he hasn t succeeded in doing so on his own initiative. For example, the judge may have to introduce an alternative ground into the discussion in order to give a litigant the possibility to consider invoking it. The content of the burden of allegation is also given closer examination. The study asks how a party can know which facts should be invoked and by what kind of statements this should be done in order to avoid any losses of material rights. This is quite a difficult problem, requiring answers to questions like how to distribute the burden between the parties and how to separate claims of facts, which have to be invoked, from claims of rights, for which the judge is responsible. Moreover, the burden of allegation should not concern juridical characterization of the circumstances. The latter question is especially difficult when the facts are described in legal texts using relatively abstract terms or when the relevance of the facts is based on unwritten norms. In these cases it is usually difficult to know which facts should be invoked and how exactly they should be described in the statements of the parties involved. The end of the chapter provides an analysis of the kinds of factual grounds that are investigated ex officio according to established practice or established opinion in the literature. Chapter 4 deals with the question of how to interpret the statements of the litigants. For example, should the burden of allegation be moderated by a more generous interpretation of the claims if mandatory private law seems applicable? This kind of thinking has been suggested in the civil law literature and is practised by the courts. Chapter 5 asks how a judge s neglect of different kinds of duties should be regarded as an obstacle to precluding litigants claims. In addition, the study argues that without exception preclusion requires the idea that a party has in a concrete way neglected his/her duty to invoke the facts. An examination is also provided of how to deal with factual uncertainty in circumstances involving juridical preconditions for preclusion. It is argued that an elementary distinction should be made between circumstances connected with the legal relationship of the parties on one hand and circumstances like the content of the parties statements, the questions presented by the judge, or other occurrences during court proceedings on the other hand. In chapter 6 factual grounds regulated by mandatory civil law rules are given closer examination. An analysis is provided of the justification for a judge s pronounced responsibility to ensure the investigation of these grounds and how his duties are manifested in action according to the type of grounds concerned. Chapter 7 begins by introducing some factors that hamper guidance of the judge s activities in material process management. However, the main question is the justification for the judge s responsibilities, which is analysed from the perspective of the individual rights of the parties and collective ends of society (as represented by the court). Chapter 8 examines attempts in preparatory legislative works and the literature to define the boundaries of material process management. Proposed solutions are first carefully described and then evaluated. The author s answer to the question of how the boundaries of a judge's responsibilities should be viewed is presented in chapter 9. The solution is based on constructing four main procedural principles of law with the help of procedural theory, preparatory legislative works and fundamental and human rights. These principles aim to advance realization of substantial legal protection, procedural economy, procedural justice and regulative purposes of private law. The principles are then applied in various typical situations of interpretation. Chapter 10 briefly considers the need to reform procedural legislation. The study concludes with chapter 11, where the main results of the study are summarized.
  • Lautjärvi, Kari (Talentum Media Oy, 2015)
    Kari Lautjärvi MEZZANINE FINANCE INSTRUMENTS - A COMPANY LAW STUDY ON THE DEBT BASED MEZZANINE INSTRUMENT HOLDER´S LEGAL POSITION IN A FINNISH COMPANY LIMITED BY SHARES 1. Object and methods of the dissertation This doctoral dissertation provides a comprehensive discussion on various equity and debt financing instruments that Finnish limited liability companies (limited by shares) generally use. The main focus of the dissertation is examining mezzanine debt instruments incorporating such things as control covenants, capital and debenture loans, perpetual hybrid loans, profit sharing loans as well as convertible and option loans. In general, mezzanine finance instruments are used as corporate finance products in Finland and are a form of hybrid capital. Albeit typically structured as debt instruments, mezzanine instruments are often more akin to equity finance instruments by virtue of their characteristics. The equity instruments are regulated mainly by company law as well as the articles of association of the company concerned, whilst the debt instruments are regulated in essence by the Law of Obligations and the general principles of contract law. The new Finnish Act on Limited Liability Companies (624/2006), hereinafter the "FCA", extended the contractual freedom of companies in creating different types of equity financing instruments, primarily by the creation of different classes of shares. The equity instruments may confer preferred voting, economic rights and other benefits as well as redeemable and convertible rights. Conversely, the contract law principle of freedom of contract has traditionally enabled the debt instruments to be tailored according to the needs of a particular company. Consequently, there is extensive contractual freedom in creating mezzanine debt instruments in Finland. Finnish limited liability companies issue mezzanine instruments primarily for the purposes of achieving tax benefits, improving the company´s solvency and credit ratios as well as facilitating the company´s capital funding or decreasing capital expenditure. The mezzanine instruments may, inter alia, contribute to the improvement of risk management for companies and their investors as well as increased profits for the investors. They also provide an alternative financing method for companies, their shareholders and other investors by mitigating their conflicting interests. The implementation of the International Financial Reporting Standards (IFRS) in Finland has emphasized substance based evaluation in defining the difference between equity and debt in company accounts. Thus, the actual substance and nature of the instrument concerned is important more often than its legal form. However, from the perspectives of the Finnish company, accounting and tax law, the legal character and status of equity and debt instruments may differ or conflict with one another. This dissertation mainly concentrates on the analysis of various types of mezzanine instruments and the structure of the applicable Finnish legal rules. The central theme of the dissertation is the study of the principal-agent theory combined with the theory of transaction cost economics. The dissertation considers both the protection granted by the FCA as well as the risks involved for the various actors in a company. Therefore, the focus is on the factual nature and content of the financial instruments rather than their pure legal form. The analysis in the dissertation also encompasses the theory of law and economics. The Finnish legislation, legal literature and case law directly addressing debt-based mezzanine instruments are modest, and the same applies to the other Nordic legal systems. Consequently, the dissertation also contains comparative research on certain legal aspects of EU regulations and Anglo-American rules. 2. Themes, structure and conclusions of the dissertation The dissertation discusses the legal position under the FCA of a contractual creditor at a general level, and particularly the position of a debt- based mezzanine instrument holder in a Finnish limited liability company where the company is a going concern. As a general theme, the dissertation suggests that a contractual creditor of a company could, under certain circumstances, be identified as a principal of the company's management, while the board of directors in particular acts as the agent. This suggestion is highlighted especially in circumstances where the creditor is the holder of a mezzanine debt instrument conferring control or residual rights, or the instrument is perpetual by nature. A specific theme of the dissertation is the fiduciary duties of the management (the board of directors), particularly the duty of care and the duty of loyalty owed to a contractual creditor under Section 8 of Chapter 1 of the FCA. These duties have been traditionally interpreted as extending to both the company (directly) and its shareholders (indirectly). The fulfillment of the directors´ duty of care with regard to particular acts and omissions is determined by the rule of business judgment. The dissertation consists of nine Chapters. Chapter 1 describes the object, themes, theoretical frames, methods, structure and sources of the dissertation. Chapter 2 focuses on the roles of both equity-based and debt-based investors and their relevant principal-agent relations in the mezzanine financing transactions. The chapter examines, inter alia, various theories concerning a company and the shareholders or stakeholders of a company in these contexts, the regulatory frameworks and legal strategies for protecting principals, and the protection granted by the FCA for principals in various principal-agent relations. Chapter 3 provides an overview of the capital structure in a Finnish limited liability company, the characteristics of both equity and debt, equity and debt investments as a combination of risk and income, the risk preferences of various investors, the legal positions of various investors in relation to an order for distribution of payments or return of capital, and the relevance of the risk positions. In addition, the chapter discusses equity and debt capital from the perspectives of the company, accounting, tax and insolvency laws. Furthermore, Chapter 3 describes the capital structure under the FCA, including the formation, maintenance and distribution rules of the equity capital, and the creditors´ protection regime. Chapter 4 addresses mezzanine capital from the perspectives of company, accounting, tax and insolvency laws. Chapter 5 examines the levels of regulation and regulatory instruments for various types of mezzanine finance. Chapter 6 describes the different types of equity-based and debt-based mezzanine instruments used by a Finnish limited liability company and discusses various reasons for the use of the appropriate mezzanine finance instruments. Chapter 7 examines the asymmetry of legal treatment of mezzanine finance instruments from the perspectives of the company, accounting, tax and insolvency Laws, and the problems resulted from this asymmetry. The chapter also illustrates the similarities and differences between a tailored equity- based and a tailored debt- based mezzanine finance instrument, namely, a preferred share without any voting and residual income rights which is redeemable by the company, and a hybrid loan instrument having elements of perpetuity. Chapter 8 is the core of the dissertation. It provides an extensive discussion on the legal position of a contractual creditor as a principal and the legal strategies for the protection of such a creditor in general and as derived from the management´s fiduciary duties under the FCA where the debtor company is a going concern. Chapter 8 examines particularly the issue as to whether the management´s fiduciary duties (i.e., the duties of care and loyalty) under the FCA could in certain circumstances be extended to protect a contractual creditor in general and especially a debt-based mezzanine instrument holder, where the instrument has been strengthened with conditions or covenants of control rights, residual income rights or conversion rights. The chapter also discusses the relevance of the contractual loyalty principle in this context. Furthermore, Chapter 8 examines the functioning of the creditors´ protection regime pursuant to the FCA, the clarity and transparency of the legal position of the debt- based mezzanine investor under the FCA as well as the availability and reliability of information related to various finance instruments. Chapter 9 summarizes the conclusions of the research de lege lata and proposes regulative improvements de lege ferenda. The dissertation concludes with the notion that the close connection between the purpose of the company´s activities (normally long-term profit maximization of the shareholders of the company) with the going-concern principle of company law, on the one hand, and the duties of care and loyalty of the company´s management on the other, together result in the extension of the protection afforded under these fiduciary duties to contractual creditors (indirectly). This protection extends to the contractual creditors, especially when management´s decision on the distribution (and use) of company´s funds may affect the company´s liquidity and solvency, particularly in evaluating the company´s liquidity under the FCA. These fiduciary duties of management are emphasized in relation to the holders of debt- based mezzanine instruments conferring residual or control rights at that time or in the future (derived from conversion rights). The dissertation proposes de lege ferenda legislative reforms to the FCA, such as the clarification of directly and indirectly protected actors with regard to the management´s duty of care and duty of loyalty, and reevaluation of the creditors´ protection regime (and particularly the liquidity and solvency test) in distribution and maintenance of company funds by strengthening of the test and simultaneously abandoning the separation of restricted and unrestricted equity, as well as redefining the distributable funds. In addition, the dissertation proposes certain legislative improvements to the legal and contractual order of payments as well as improvements designed to increase the availability and reliability of company financial information for various investors. Finally, the increasing symmetry of company, accounting and tax laws from the perspective of the factual nature and substance (rather than their purely legal form) of the corresponding financial instruments is considered important in the future.