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  • Kettunen, Merita (2015)
    European criminal law consists of EU criminal law and influences stemming from the ECHR regime. The legitimacy of this European criminal law has not really been theoretically examined by criminal law researchers. Many of the previous studies on European criminal law start from the dynamic rationale of general EU law rather than from the thinking which reflects the discipline of criminal law. This study aims to fill this space. The study provides a criminal law-oriented normative view on how the use of European criminal law, and in particular the use of EU criminal law, could be legitimized from the perspective of criminal law doctrine. In other words, the study aims to show how, under which criteria, the use of criminal law as it stands, and the enactment of criminal legislation in particular, can be seen as legitimate. Thus, the aim of this study is not to argue for the legitimacy of criminal law in general. This research suggests that European criminal legislation ought to respect and follow certain European criminalization principles. The research adopts a constitutional approach since the limits for the use of European criminal law, the European criminalization principles, are derived from European constitutional norms. Constitutional elements are increasingly important also to criminal law, especially in its European transnational context. The main research question is how the use of European criminal law can be justified. The research starts by illustrating the differences of traditional and European criminal law. It then reflects on differences between general EU law and EU criminal law to illustrate the special character of European criminal law. The research claims that even though the European states have lessened their autonomy by engaging in cooperation in the field of criminal law, this cooperation actually increases their sovereignty because it enables the Member States to react better to cross-border crime which affects their interests. The use of European criminal law needs to respect the normative paradigm which it was designed to follow. In the EU context, this normative paradigm is expressed in the safeguard mechanisms included in the substantive criminal competence provision enshrined in the Treaty on the Functioning of the European Union (Article 83 TFEU), and in the European principles of criminalization that can be derived from this Article. The European Convention on Human Rights regime also provides a value basis for criminal law enacted at both EU and national levels. This research focuses on the use of substantive criminal law as it stands at the level of criminalization (enactment of criminal legislation). It is also possible to draw some general conclusions on the acceptability of European criminal law. The legal basis for the legislative act and its ratio legis affect the teleological interpretation of the Union s substantive criminal legislation. For this reason the choice of legal basis is not merely a technical legal issue. The question of legal basis is in fact a normative issue and an issue of criminal policy. The choice of legal basis determines the type of instruments that can be used to enact EU criminal legislation, namely whether the legislation is given in a form of a regulation or a directive. This determines how EU criminal law affects national law and its application. The legal basis affects how much flexibility there is for the Member States in the implementation of that instrument into the national criminal justice system. The research shows that the European criminalization principles ought to guide the choice of legal basis when legislative proposals include criminal law content. Recent changes in how the Court of Justice of the European Union interprets the Treaties support this argument. The Court has changed its doctrine to allow the travaux préparatoires to the EU Treaties as evidence. In these cases, the travaux are used in order to establish the ratio legis of the Treaty provisions. The Court refers to the travaux only when textual interpretation is not sufficient and when the travaux can add value to the interpretation by establishing the ratio legis. The Court has only made static references to the travaux, meaning that the Court has relied on them only when the reference does not entail constitution-building through dynamic Treaty interpretation. Criminal law measures are highly intrusive for those individuals on whom they are imposed. In this individual rights-sensitive sense criminal law is highly political field of law, which needs to be enacted in a democratic process. Since criminal law is also an highly sovereignty-sensitive area of law, criminal legislative mechanisms at the transnational level should be fundamental rights sensitive and respect the core contents of national criminal justice systems and thus also state sovereignty. The principle of legality demands that criminal legislation is interpreted strictly. The principle of ultima ratio requires that criminal legislation is used sparsely. From this criminal law perspective, the travaux préparatoires of the Treaties ought not to be utilised to support dynamic interpretations of the Union s substantive criminal law competence if this would increase the scope of the Union s substantive criminal law competence or change its nature. The travaux préparatoires of the Union s substantive criminal law competence in addition to the Court s new interpretation method support this kind of restrictive interpretation.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • Günsberg, Patrick (2015)
    Drawing on a comparative approach this study discusses the criminalization of the so-called hard-core cartels and suggests that despite possible pitfalls it continues to be a worthy endeavor. It seems that the integrity of the criminal justice system warrants the introduction of a criminalized anti-cartel regime, a project that should be on the agenda for all modern economies, including Finland and Sweden. However, one should not rashly proceed with such a vast project without carefully considering all the components that go into a successful regime lest the project become an asset turned into a liability. Crucially a failure regarding one or few components may undermine the whole project, as the UK experience may confirm. In the gravest cases criminal law alone could communicate adequately the blameworthiness of a given conduct: cartels impair one of the core pillars of our society, the market economy on which individuals depend in an attempt to ensure their own welfare. Indeed the bold disobedience to the whole system appears to be at the core of what is delinquent about cartels. Overcriminalization critique concerning a possible criminalization of cartel conduct seems to ignore the moral educative function of criminal law. The public may come to denounce behavior that was previously perceived to be neutral in moral terms one may think of the environmental offences for instance. Certainly public opinion could be shaped by experts views in complex fields of law. A coherent EU criminal policy and a national one for that matter, with regard to cartels should promote uniformity: the credibility of the criminal justice system is supported by criminally banning violations of a similar penal value. The justification for an exclusively administrative mode of anti-cartel enforcement appears vague. It seems that administrative sanctions could be properly adopted only against minor offences, whereas cartels as an egregious violation of competition law do not seem to fall within that category. Arguably, cartel conduct warrants the ultimate condemnation provided only by criminal law. Other measures would not produce the stigmatizing label on a par with criminal measures. Several EU member states have introduced criminal cartel offences whereas similar rules are absent at the EU level. In that regard it may be noted that it would hardly make for a coherent EU criminal policy if larger cross-border cartels did not prompt criminal liability whereas at the national level cartels were caught by criminal prohibition. Moreover, it may be argued that the UK problems with the cartel offence stem partly from the lack of harmonization in the EU, which may have also contributed to the misguided policy of relying exclusively on administrative sanctions in Finland where individual liability is completely absent. While the optimal deterrence theory cannot alone be relied upon to back a cartel criminalization project, it may remain a point of continued interest in the cartel criminalization debate due to its theoretical appeal. All in all, there are several commentators and jurisdictions that rightly acknowledge the value of a mixture of measures being available in the fight against cartels, including director disqualification orders, fines and custodial sanctions.
  • 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 .
  • Savola, Pekka (Helsingin yliopisto, 2015)
    This article-based dissertation examines the involuntary role of Internet connectivity providers in copyright enforcement in the EU, and in particular injunctions ordering user-end providers to block access to websites facilitating infringement. The main method is doctrinal legal scholarship supplemented by a socio-legal study of legal policy, seeking answers to the why questions underlying the law. Copyright enforcement measures using providers include website blocking, disconnecting the website or the user, subscriber information disclosure, and notice or graduated response mechanisms. There are also dozens of other options for enforcement, and the IPR holder may select the optimal one(s). In international settings, this can be further optimised by the choice of jurisdiction, the applicable law, and characterisation of the infringement. These provide opportunities for gaming the system . Enforcement proceedings are problematic because typically only the copyright holder and possibly the provider are represented in court. Nobody is responsible for arguing for the users or website operators. The court should take their interests into account on its own motion. Unfortunately, many courts have not yet recognised this responsibility. Even this dual role as both the defender of unrepresented parties and judge is less than ideal and improvement is called for. All the enforcement mechanisms must be compatible with EU fundamental rights, as well as the national ones. A proportionality evaluation procedure is suggested, consisting of identifying the context, the interests of different parties, and applicable principles as well as formulating the evaluation criteria and applying them in a proportionality test. In the test, the legitimacy of the objective, suitability for the purpose, necessity and balancing need to be critically assessed. The underlying goal of copyright enforcement has implications for how the scale tilts. Ineffective enforcement mechanisms can be more easily accepted if the goal of symbolic, educational or politically motivated enforcement is deemed legitimate. However, if the goal is to decrease the impact of infringement, greater efficiency and economically quantifiable results may be required. A proportionate mechanism does not necessarily exist in any particular case. Current enforcement legislation is a product of heavy lobbying by the copyright industry. This has led to the legislators being inundated with copyright ideology and proprietarian bias. In consequence, the legislation fails to take the more general public policy interests and the rights of others into account adequately. The pressure is on rationalising rather than expanding the role of connectivity providers. This background context also calls for a critical approach to interpreting the law. Such an approach might help in achieving more rational and balanced justifications and conclusions.
  • 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.
  • Pijetlovic, Katarina (Springer, 2015)
    This dissertation analyses the legal problem posed by the clauses in UEFA Statutes that prevent clubs from unauthorised formation of alternative transnational structures in football. Unequivocally, these clauses constitute restrictions on economic activities of football clubs in their capacity as undertakings contrary to EU competition and internal market laws, in particular, Articles 101, 102 and 56 TFEU that form the core of EU sports law. More contentiously, however, the heart of the analysis lies in the question of justification and proportionality of the restrictions, which could possibly render the restrictive UEFA clauses legal and enforceable. Over the past 20 years, a solid body of case law, legislation and EU policy documents developed a distinct legal discipline that can be referred to as EU sports law and that can facilitate in resolving this question. The essence of EU sports law lies in the custom-tailored application of traditional economic provisions that takes account of the specificities of sport, a concept that has been given constitutional basis in Article 165 TFEU after the Lisbon Treaty amendments. Moreover, the approach to specificity of sport can be traced back to its origins in 1974 Walrave case, and it forms the basis of the crucial notion of sporting exception in the EU law. This study first highlights the problems in the governance of European football with particular reference to power struggles between UEFA and the elite football clubs and the threats of formation of alternative cross-border leagues by the clubs. Thereafter, the study sets out and discerns the principles underlying the application of EU freedom of movement and competition law to legal disputes in the sports sector, contributing several original interpretations of the key sports cases, such as Bosman, Meca-Medina, Bernard, and Murphy. Most prominent contribution of this thesis to the general study of EU sports law, however, is sketching a novel way of looking at the different categories of sporting exceptions through the prism of convergence between EU free movement law and competition law. The quest for convergence revealed a largely streamlined analytical framework in the sporting cases that involve organisational/regulatory rules and rely on public interest justifications. Finally, thus streamlined framework is applied to analyse the question of legality of the UEFA clauses restricting the formation of breakaway leagues. Some of the conclusions that emerge from this analytical process are surprising, in particular those pertaining to UEFA s power on the relevant market for organisational services for transnational club football in Europe.
  • Nyholm, Elina (Helsingin yliopisto, 2015)
    The research question relates to the content of the ex post supervision provisions of the Finnish Environmental Protection Act (EPA) under the currently valid legislation. The study particularly focuses upon single control orders (EPA Section 180), indirect administrative compulsion (EPA Sections 175 through 176) and direct administrative compulsion (EPA Section 181). The objective is to systematize the mutual delineation of the scopes of application of the said provisions. The study utilizes the method of legal dogmatics. Furthermore, the aim is to present views on how the ex post control provisions of the EPA should be developed. A particular methodical characteristic entails the ample utilization of also unpublished case law, primarily in highlighting the problematic issues. For this reason, the study also exhibits characteristics of empirical legal research. This is also why the study is additionally distinctly connected to administrative procedural law, albeit it is categorized under environmental law, or, more precisely, under environmental protection law. The study examines the instances when activities causing the threat of environmental pollution can be targeted with a single control order, when the activities are in breach of the EPA, a decree or regulation issued under it in such a manner that it can be targeted with indirect administrative compulsion, and what are the prerequisites that need to be met for the causing of the pollution to be capable of being addressed by means of direct administrative compulsion, i.e. the immediate suspension of the activities. The study systematizes the obligations contained in the various provisions of the EPA, and those contained in the decrees and regulations issued under the EPA, compliance with which can be enforced by means of indirect administrative compulsion. The pivotal finding comprises the systematization of the provisions of the EPA in such a manner that the situations entitling to the application of the various ex post supervisory measures and the mutual boundaries of the ex post supervisory measures scopes of application become less ambiguous. An additional finding entails the provision of some individual legislative recommendations relating, inter alia, to the regulation of the competent authority and the degree of the obligatory nature at which the prohibitions contained in the legislation should be set.
  • Lautjärvi, Kari (Talentum Media Oy, 2015)
    Kari Lautjärvi MEZZANINE FINANCE INSTRUMENTS - A COMPANY LAW STUDY ON THE DEBT BASED MEZZANINE INSTRUMENT HOLDER´S LEGAL POSITION IN A FINNISH COMPANY LIMITED BY SHARES 1. Object and methods of the dissertation This doctoral dissertation provides a comprehensive discussion on various equity and debt financing instruments that Finnish limited liability companies (limited by shares) generally use. The main focus of the dissertation is examining mezzanine debt instruments incorporating such things as control covenants, capital and debenture loans, perpetual hybrid loans, profit sharing loans as well as convertible and option loans. In general, mezzanine finance instruments are used as corporate finance products in Finland and are a form of hybrid capital. Albeit typically structured as debt instruments, mezzanine instruments are often more akin to equity finance instruments by virtue of their characteristics. The equity instruments are regulated mainly by company law as well as the articles of association of the company concerned, whilst the debt instruments are regulated in essence by the Law of Obligations and the general principles of contract law. The new Finnish Act on Limited Liability Companies (624/2006), hereinafter the "FCA", extended the contractual freedom of companies in creating different types of equity financing instruments, primarily by the creation of different classes of shares. The equity instruments may confer preferred voting, economic rights and other benefits as well as redeemable and convertible rights. Conversely, the contract law principle of freedom of contract has traditionally enabled the debt instruments to be tailored according to the needs of a particular company. Consequently, there is extensive contractual freedom in creating mezzanine debt instruments in Finland. Finnish limited liability companies issue mezzanine instruments primarily for the purposes of achieving tax benefits, improving the company´s solvency and credit ratios as well as facilitating the company´s capital funding or decreasing capital expenditure. The mezzanine instruments may, inter alia, contribute to the improvement of risk management for companies and their investors as well as increased profits for the investors. They also provide an alternative financing method for companies, their shareholders and other investors by mitigating their conflicting interests. The implementation of the International Financial Reporting Standards (IFRS) in Finland has emphasized substance based evaluation in defining the difference between equity and debt in company accounts. Thus, the actual substance and nature of the instrument concerned is important more often than its legal form. However, from the perspectives of the Finnish company, accounting and tax law, the legal character and status of equity and debt instruments may differ or conflict with one another. This dissertation mainly concentrates on the analysis of various types of mezzanine instruments and the structure of the applicable Finnish legal rules. The central theme of the dissertation is the study of the principal-agent theory combined with the theory of transaction cost economics. The dissertation considers both the protection granted by the FCA as well as the risks involved for the various actors in a company. Therefore, the focus is on the factual nature and content of the financial instruments rather than their pure legal form. The analysis in the dissertation also encompasses the theory of law and economics. The Finnish legislation, legal literature and case law directly addressing debt-based mezzanine instruments are modest, and the same applies to the other Nordic legal systems. Consequently, the dissertation also contains comparative research on certain legal aspects of EU regulations and Anglo-American rules. 2. Themes, structure and conclusions of the dissertation The dissertation discusses the legal position under the FCA of a contractual creditor at a general level, and particularly the position of a debt- based mezzanine instrument holder in a Finnish limited liability company where the company is a going concern. As a general theme, the dissertation suggests that a contractual creditor of a company could, under certain circumstances, be identified as a principal of the company's management, while the board of directors in particular acts as the agent. This suggestion is highlighted especially in circumstances where the creditor is the holder of a mezzanine debt instrument conferring control or residual rights, or the instrument is perpetual by nature. A specific theme of the dissertation is the fiduciary duties of the management (the board of directors), particularly the duty of care and the duty of loyalty owed to a contractual creditor under Section 8 of Chapter 1 of the FCA. These duties have been traditionally interpreted as extending to both the company (directly) and its shareholders (indirectly). The fulfillment of the directors´ duty of care with regard to particular acts and omissions is determined by the rule of business judgment. The dissertation consists of nine Chapters. Chapter 1 describes the object, themes, theoretical frames, methods, structure and sources of the dissertation. Chapter 2 focuses on the roles of both equity-based and debt-based investors and their relevant principal-agent relations in the mezzanine financing transactions. The chapter examines, inter alia, various theories concerning a company and the shareholders or stakeholders of a company in these contexts, the regulatory frameworks and legal strategies for protecting principals, and the protection granted by the FCA for principals in various principal-agent relations. Chapter 3 provides an overview of the capital structure in a Finnish limited liability company, the characteristics of both equity and debt, equity and debt investments as a combination of risk and income, the risk preferences of various investors, the legal positions of various investors in relation to an order for distribution of payments or return of capital, and the relevance of the risk positions. In addition, the chapter discusses equity and debt capital from the perspectives of the company, accounting, tax and insolvency laws. Furthermore, Chapter 3 describes the capital structure under the FCA, including the formation, maintenance and distribution rules of the equity capital, and the creditors´ protection regime. Chapter 4 addresses mezzanine capital from the perspectives of company, accounting, tax and insolvency laws. Chapter 5 examines the levels of regulation and regulatory instruments for various types of mezzanine finance. Chapter 6 describes the different types of equity-based and debt-based mezzanine instruments used by a Finnish limited liability company and discusses various reasons for the use of the appropriate mezzanine finance instruments. Chapter 7 examines the asymmetry of legal treatment of mezzanine finance instruments from the perspectives of the company, accounting, tax and insolvency Laws, and the problems resulted from this asymmetry. The chapter also illustrates the similarities and differences between a tailored equity- based and a tailored debt- based mezzanine finance instrument, namely, a preferred share without any voting and residual income rights which is redeemable by the company, and a hybrid loan instrument having elements of perpetuity. Chapter 8 is the core of the dissertation. It provides an extensive discussion on the legal position of a contractual creditor as a principal and the legal strategies for the protection of such a creditor in general and as derived from the management´s fiduciary duties under the FCA where the debtor company is a going concern. Chapter 8 examines particularly the issue as to whether the management´s fiduciary duties (i.e., the duties of care and loyalty) under the FCA could in certain circumstances be extended to protect a contractual creditor in general and especially a debt-based mezzanine instrument holder, where the instrument has been strengthened with conditions or covenants of control rights, residual income rights or conversion rights. The chapter also discusses the relevance of the contractual loyalty principle in this context. Furthermore, Chapter 8 examines the functioning of the creditors´ protection regime pursuant to the FCA, the clarity and transparency of the legal position of the debt- based mezzanine investor under the FCA as well as the availability and reliability of information related to various finance instruments. Chapter 9 summarizes the conclusions of the research de lege lata and proposes regulative improvements de lege ferenda. The dissertation concludes with the notion that the close connection between the purpose of the company´s activities (normally long-term profit maximization of the shareholders of the company) with the going-concern principle of company law, on the one hand, and the duties of care and loyalty of the company´s management on the other, together result in the extension of the protection afforded under these fiduciary duties to contractual creditors (indirectly). This protection extends to the contractual creditors, especially when management´s decision on the distribution (and use) of company´s funds may affect the company´s liquidity and solvency, particularly in evaluating the company´s liquidity under the FCA. These fiduciary duties of management are emphasized in relation to the holders of debt- based mezzanine instruments conferring residual or control rights at that time or in the future (derived from conversion rights). The dissertation proposes de lege ferenda legislative reforms to the FCA, such as the clarification of directly and indirectly protected actors with regard to the management´s duty of care and duty of loyalty, and reevaluation of the creditors´ protection regime (and particularly the liquidity and solvency test) in distribution and maintenance of company funds by strengthening of the test and simultaneously abandoning the separation of restricted and unrestricted equity, as well as redefining the distributable funds. In addition, the dissertation proposes certain legislative improvements to the legal and contractual order of payments as well as improvements designed to increase the availability and reliability of company financial information for various investors. Finally, the increasing symmetry of company, accounting and tax laws from the perspective of the factual nature and substance (rather than their purely legal form) of the corresponding financial instruments is considered important in the future.
  • Emelonye, Uchenna (Helsingin yliopisto, 2014)
    Abstract This thesis adopted the law in context methodology after due consideration of other legal research methodologies. To situate child justice within the parameters of child rights, this thesis analyzed the normative underpinning of child rights and found that its foundation is traceable to the International Bill of Human Rights. It also examined the philosophical foundations of child rights and adopted the view that it is based on inclusive legal positivism found at the intersection of natural law and positive law. This thesis validated the existing claim that child justice is predicated on the mitigated culpability of children and that whilst human rights extend to children because of their humanity, child-specific rights, including child justice accrue to them specifically due to their age and vulnerability. Having considered all the principles of child rights, this thesis elevated the principles of proportionality and the best interests of the child as twin pillars of child justice. As a standard for the humane treatment of children in conflict with the law and predicated on the premise that the twin pillars encapsulate all other principles of child rights, this thesis examined to what extent the twin pillars are incorporated and applied in the Nigerian child justice system. This thesis found that although the 2003 Child Rights Act of Nigeria meets the minimum international legislative standard, child offenders in Nigeria seldom enjoy the protective shield of the twin pillars of child justice. It corroborated the strength of the twin pillars of child justice as judicial sentencing tools and found that whereas child rights may accommodate relative sensitivities, the twin pillars of child justice are immutable and non-derogable principles for the treatment of children in conflict with the law. To ensure the promotion and protection of the rights of child offenders, this thesis recommended the amendment of the Child Rights Act and the immediate establishment of all the enablers contemplated therein. Although the review of the 1999 Constitution of Nigeria was not the main focus of this thesis, it however found that certain provisions of the constitution inhibit the enjoyment of child rights. Exploring the opportunity presented by the ongoing constitutional reform in Nigeria, this thesis recommended the amendment of some sections of the constitution.
  • 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.
  • Reyes Gomez, Javier Alberto (2014)
    Law & Economics is the hegemonic framework in mainstream corporate governance theory and praxis. It permeates how legal scholars see corporations, how they must be managed, and to which ends they should be geared to. Because large amount of power is concentrated and exercised through corporations, the fact that law & economics is both a descriptive and a normative theory has an impact on the shaping of the world. This research aims at asking: is there an alternative normative jurisprudence to law & economics in corporate governance? In order to approach this task, the methodology used is hybrid, leaning towards a hermeneutical qualitative non-doctrinal approach, inspired by the mapping and criticism analysis of Roberto Mangabeira Unger and Dworkin s interpretivism all within the greater context of critical legal theory. This allows the research to make a detailed exploration of current structures and unearth its ideological underpinnings. The research starts by pinpointing the importance of corporate governance in the context of development theory, and it dissects its ideologically charged significance within an economicist view of the world. Then, corporations are analyzed from both historical and ontological perspectives in preparation for an alternative corporate legal theory. Such a jurisprudential approach takes, first, a descriptive form, though it then evolved into a normative one, gravitating around the goal of corporate law and the contrast between the theory of the firm and political philosophy. The tenets of law & economics are then critically dissected. The main findings are that law & economics appeal arises from its sound epistemological construction. It takes off from an ethical position (i.e. utilitarianism) which then serves a methodological path (i.e. positivist empiricism), on top of which a theoretical framework is developed (i.e. neoclassical economics). Its weakness, though, consists of simplistic and erroneous elemental assumptions. Based on these findings, the research proposes an alternative to the law & economics theory of corporate governance built on top of a model which mirrors its sound epistemological construction, though centers around a normative jurisprudence analysis of individual and corporate personhood and to the core of corporations, what they really are, and what they should be used for.
  • Vilanka, Olli (Helsingin yliopisto, 2014)
    This dissertation is an article based dissertation evaluating position of prosumers, authors and corporations in the information society especially from the viewpoint of Article 27 of the Universal Declaration of Human Rights (UDHR). Prosumers are understood as private natural persons who use content protected by copyright for non-commercial purposes. Similarly authors are understood, following the traditional droit d´auteur copyright theory, as individual natural persons creating content protected by copyright. As it has been argued that role of legal persons, or corporations, has increased as it comes to administering copyright, also their position shall be evaluated and compared to rights of authors and especially prosumers. Article 27 of the Universal Declaration of Human Rights, similarly as copyright theory based on exclusive rights, postulates that content should be both created and used. However, significant amounts of illegal uses of content on the Internet take constantly place. Preventing or denying use should not be in the interest of anyone. Thus the main aim of the book is to evaluate whether something prevents use of content on the Internet and to what extent it may be justified from the viewpoint of Article 27 of the UDHR. In this respect the book analyses article 27 of the UDHR suggesting that the right to science and culture as enshrined in its subsection 1 allows use of content. On the other hand subsection 2 of the Article 27 of the UDHR protects essential economic interests of authors. Although subsection 2 of the article 27 of the UDHR does not grant exclusive rights to authors, rights of authors shall be evaluated from the viewpoint that exclusive rights are being applied. In practice this means evaluating possibilities to administer use of content through exclusive rights and in this respect power relations between prosumers, authors and legal persons. Collective administration of rights, position of intermediaries and applicability of platform fees shall also be examined. Main method for evaluation is legal dogmatic method from fundamental right perspective. It could also be described as a traditional legal doctrine approach describing and systematizing legal sources and arguments containing philosophical insight. Regarding systemizing and interpreting norms, Dworkin s theory of rules and principles shall be applied. The book has also an interdisciplinary approach as it compares individualistic droit d auteur copyright theory to basics tenet from the field of communicational studies. The findings indicate that not only prosumers, but also authors seem to have small role as it comes to administering use of content. Instead role of legal persons seems to be more significant. As fundamental rights protect natural persons such as prosumers and authors, but in principle do not extend their scope to legal persons, and especially to larger corporations, rigorous and strict reading of copyright law often causes challenges from the viewpoint of fundamental rights. Thus the book argues that alternative manners but exclusive rights should be considered in order to secure rights of prosumers and authors as it comes to use of content on the Internet. Consequently some legal political suggestions shall be made.
  • Koulu, Sanna (Lakimiesliiton kustannus / Kauppakamari, 2014)
    This work, titled Agreements on Child Custody and Contact Legal foundations and proper families , belongs to the fields of child law and legal theory. It focuses on the legal effects of agreements on child custody and contact, spanning both informal agreements within the family and formal agreements usually drawn up in connection with divorce or separation. In Finland, formal agreements are a common way of arranging care and defining the legal custody of children after a divorce. Some tens of thousands of agreements are made each year, and they have specific legal effects comparable to court decisions. The legal analysis of these agreements offers a view into our conceptions of the family as well as into the legal foundations of agreements that concern children. The central issue is two-fold. First, the study surveys the ways in which agreements and their legal effects are justified in our current legal reasoning, in connection with the need for legitimacy in law. Secondly, the work examines the mechanisms that constrain and direct the legal effects of the agreements, in relation to the demands of legal coherence. In more concrete terms, the topic is approached via four research questions. First, how does law characterize custody and access as topics of agreement? Second, what does it mean to speak of agreements or contracts in relation to custody and contact? Third, why are these agreements granted legal effects? Here the question of whose agreements are granted legal effects is also important, since the justifications for the legal effects of agreements have a person-specific dimension. And fourth, how do agreements and negotiation produce and shape family autonomy? The research draws on three partly overlapping kinds of material. The most important source material consists of legal scholarship as well as legislative materials. This material is complemented by literature from the social sciences, especially from critical family studies, which analyses family relations mostly from the viewpoint of social constructionism. These strands of scholarship combine in an analysis of case law from the Finnish Supreme Court, covering 198 prejudicative decisions given mainly since 1980. Seven decisions were chosen for an in-depth reading, in order to examine how and why the agreements were given legal effects in certain difficult cases. The reasons for granting legal effects to agreements can be expressed as justificatory conceptions, i.e. ways of justifying and constraining the legal effects of agreements. These conceptions or schematics are historically contingent and changeable. All in all, five schemas were identified on the basis of the case law: 1) parental autonomy, 2) state power in the service of the common good, 3) factual care, 4) the best interests of the individual child and 5) the participation of the child. The five schemas were then further analysed in a historical context, showing a shift from status-based and essential justifications to more fluid and negotiatory models. This shift can be approached in multiple ways, as it corresponds thematically to the shift from the modern into a late modern mode of thinking. Some of the thematizations offered in the work are based on the contrast between juridico-political vs. normalizing power, examined by Foucault and Donzelot; on the ethics of justice and the ethics of care, as per Gilligan and Held; and on the system-theoretical approach proposed by King and Piper in the vein of Luhmann. Finally, the study discusses the justification and legal impact of agreements as a form of governing and regulating families. It is proposed that the good family is construed as one that is appropriately negotiatory and normal and that the logic of law is effectively co-opted into producing this normalization via the control of agreements. The main contribution of the study is the elaboration and analysis of different justificatory schemas. The best interests of the child are the most well-known of these, of course, but the identification of other, usually less visible schemas can provide tools for more transparent and solid legal reasoning and, paradoxically, can better safeguard the actual best interests of the children involved. Other contributions include the definition of the negotiatory ideal of current family law, as well as a thorough look into the logic of legal decision-making on families and children. Finally, the whole thesis can be fruitfully read as a case study of the theoretical approaches of e.g. Tuori in that it fleshes out the relationships of justification and constraint between the deep structures and the surface level of child law. The work concludes with proposals for legislative work and legal reasoning. It is argued that as factual care has come to be more and more influential in case law over the past few decades, its role in child custody and contact should be considered carefully in legislative work as well. At the same time, the availability of family mediation should be ensured in addition to access to justice in family conflicts. Finally, more attention should be paid to the effects and interpretations of the best interests principle and to the position of the child.
  • Martineau, Anne-Charlotte (Hakapaino Oy, 2014)
    Over the past decade, the "fragmentation" of international law has certainly been one of the most widely debated themes in the field. Both practitioners and scholars have tried to assess the significance of international law's splitting up into specialized regimes such as trade law, environmental law, human rights law, humanitarian law, etc. What has this meant for international law's "unity" or "coherence"? The creation of specialised rules and institutions has certainly made international law appear more technical, less dependent on large and perhaps utopian ideas about world peace, than old "public international law" used to be. How has this affected the professional identity of international lawyers? Fragmentation has also been the subject of numerous academic studies. Unlike most of those works, this thesis does not enter the debate, by assessing the pros and cons of fragmentation and then by seeking to suggest technical solutions to deal with its problems. Instead, it tries to assess the nature and significance of the debate: what does the debate, including the proposed solutions, tell us about international law today? The thesis attempts to make sense of the repetitious character of the debate, the way in which the positions are both well-known and conducive to familiar, yet always only partly satisfactory, solutions.
  • Matikainen, Tanja (Helsingin yliopisto, 2014)
    Title: The principle of adequate financial resources acting as a guarantor for local self-government: A study on the application of the principle of adequate financial resources In Finland local authorities are responsible for providing welfare services. The state has delegated the provision of welfare services to local authorities, while the state is responsible for law drafting and providing the municipalities with adequate funding for their statutory responsibilities. The central and local governments thus share the responsibility for ensuring the realization of basic rights. Local authorities have the right to levy taxes to ensure municipal financial independence. Municipalities are entitled to central government transfers for their statutory duties. The financial responsibility for the statutory responsibilities is divided between the central and the local government. The local government tax base and the level of central government transfers have been cut down drastically. Statutory obligations have not, however, diminished at the same time; on the contrary, local government has been given new tasks and existing ones have expanded. This has resulted in a significant imbalance in the local government economy. The principle of adequate financial resources is recognized in the European Charter of Local Self-Government in Article 9.2. According to the provision, local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law. The principle was put into practice in Finland during the reform of basic rights. Since then, the principle has consistently been adopted in the statements of the Constitutional Law Committee and the Administration Committee. The study examines the implementation of the principle of adequate financial resources: the principle as a guarantor of local self-government. The first research task is to clarify the content as well as the status of the principle of adequate financial resources as part of the legal order. The second research task is to investigate the financial relations between the central and the local government in terms of principle of adequate financial resources. The third research task is to figure out how the principle of adequate financial resources is applied and complied with in Finland and the other Nordic countries. The research is of a legal nature with a focus on local government law. Local government law in this study is understood functionally, i.e. local government law is that part of the legal order which in an essential way concerns local government activities and tasks. The main research method is practical jurisprudence; comparative law is also used as a secondary method in the study. The results show that the principle of adequate financial resources has a demonstrable status as a constitutional principle, and in addition, the principle has the required institutional support of a provision. There are problems in the realization of the principle, however, and thus it cannot be stated that the principle is realized at this time. The financial cost impacts are systematically underestimated in government proposals, which cause problems for municipal finances. Cuts in the local government tax base are compensated with central government transfers, in which case the revenue previously belonging to the field of self-government switches over to the field of political policy-making and becomes a target for cuts. The central government transfer system is no longer considered as the basis for a financial relation between central and local governments, which causes problems. In addition, the program procedure for basic public services does not have the effectiveness it should for the realization of the principle. For these reasons findings suggest that § 121 of the Finnish Constitution should be amended with a provision of the principle of adequate financial resources.