Oikeustieteellinen tiedekunta


Recent Submissions

  • Koulu, Riikka (University of Helsinki Conflict Management Institute/ Riikka Koulu, 2016)
    This study, Dispute Resolution and Technology: Revisiting the Justification of Conflict Management, belongs to the fields of procedural law, legal theory and law and technology studies. In this study the changes in dispute resolution caused by technology are evaluated. The overarching research question of this study is how does implementing technology to dispute resolution challenge the justification of law as a legitimised mode of violence? Before answering such an abstract research question it is necessary to examine 1) how we should understand technology in the context of dispute resolution, and 2) how technology changes our perception of dispute resolution. In this study, I examine different forms of private enforcement enabled by technology using this phenomenon as an example of the changes in justification caused by the implementation of modern information and communication technology (ICT) to dispute resolution. The use of ICT connects with dispute resolution at three intersections: courtroom technology, online dispute resolution (ODR), and disputes about technology, the first two of which are discussed in this study. I claim that the implementation of technology in dispute resolution creates a discrepancy in the ways in which we have justified the establishment, function and appearances of dispute resolution. This discrepancy becomes visible in private enforcement of e-commerce sites and in self-executing smart contracts based on cryptocurrency infrastructure, as no judicial control of due process can be extended to these private forms of coercion. This study consists of three parts. In the first part I examine the theoretical implications of technology in dispute resolution. Answers to the first of the preliminary questions are sought from media theory: from Marshall McLuhan s technological determinism and Raymond Williams s social construction of technology as well as from Friedrich Kittler s agency of technology. The second preliminary question is answered by discussing the converging models of dispute resolution. In this discussion, I suggest abandoning the doctrinal distinction between courtroom technology and ODR. Implementing technology brings public and private dispute resolution closer to each other in many aspects, and even to the point of convergence. In the second part I exemplify the disruptive power of ICT through private enforcement, which challenges the nation-state s monopoly on violence. Although implementation of ICT cannot be reduced to private enforcement, privatisation of coercion provides a vantage point for evaluating the multifaceted changes brought on by globalisation and the privatisation of law. I identify and discuss three different justificatory narratives that have been employed to justify dispute resolution: sovereignty, consent, and access to justice. These narratives are structures within the legal system formed by continuous operations that are shared with other societal subsystems through structural couplings. The justificatory force of each narrative is tested against the challenge of private enforcement. This analysis shows that private enforcement enabled by technology causes problems for justification, as none of the existing justificatory narratives provides an explanation of its existence. In the third part of the study I briefly examine the co-operation between different justificatory narratives. In addition to this, I address the possibilities of finding justification through the technological infrastructure itself, a conceptualisation which follows Lawrence Lessig s argument of code as law. The main claim of this doctoral dissertation is that none of the discussed justificatory narratives are able to address the challenge brought on by private enforcement. On a practical level this means that it is unclear, how a sufficient level of protection of due process can be extended to private enforcement without judicial control at the enforcement stage. This challenge is rendered even more difficult by the transnational nature of dispute resolution technology. In conclusion, private enforcement constitutes a new grey area of the legal system, balancing between legal and illegal, changing our perception of the justification of conflict management.
  • Malminen, Toni Petteri (Unigrafia, 2016)
    The study is about the intellectual origins of a form of jurisprudence legal realism. A set of novel ideas about adjudication, legal education, property rights, freedom of contract, and administration of justice, legal realism was established between 1860 and 1960 by three generations of reformist European and American lawyers, philosophers, economists, sociologists, political scientists, and anthropologists who shared the conviction that various areas of social thought were infested with scientifically unsustainable and politically regressive ideas. With their sights fixed on the rise of political progressivism and social democracy, legal realists attempted to remold law for the felt necessities of the time. Through their activities as idea brokers, political confidantes, progressive judges, and innovating ideologists, they became pivotal figures in American and Swedish turn-of-the-century legal, cultural, and political history. This is a history of the intellectual origins of their ideas. The study argues that the early critique of formalism was targeted at not only formalism, positivism, and the systematic orientation of contemporary legal science but also at the romantic historicism of Savigny and his allies. Part 1 will argue that the shift from romanticism, idealism, and conceptualism toward legal realism was mediated by a novel historical sensibility I will call critical historicism. Offered as an alternative to metaphysical conceptions of history, critical historicism approached the past from a materialist and naturalistic vantage point. It also drew on contemporary cultural anthropology to gain a less parochial perspective on law and morals. With its novel historical consciousness, marked by a debunking spirit, instrumentalist vision of law and morals, and private sense of time, critical historicism mediated a shift from nineteenth-century historicism toward twentieth-century modernism and legal realism. Part 2 discusses the secularization of legal thought from the vantage point of legal realism. Although secularization was a major historical trend in the age of legal realism and realism was a distinctly secular approach to law and morals, no specialized study on the relationship between legal realism and the secularization of legal thought has been undertaken so far, a gap in scholarship I will begin to fill, although much more certainly needs to be done. The rise of legal realism coincided with the fall of the American Protestant Establishment and the crisis of the Church of Sweden, and realism was itself a step in the transformation toward pluralism and secularism in social thought. Part 3 addresses the legal skepticism and agonism of Jhering, Holmes, and Hägerström through their notion of law as a site of social struggle. Their turn toward conflict was driven simultaneously by contemporary political, economic, and social developments, including the rise of organized labor, and various intellectual currents such as Darwinism.
  • Heikkilä, Satu (Wolf Legal Publishers, 2016)
    This study focuses on the execution of the judgments of the European Court of Human Rights (Court) in Finland and especially on its effectiveness. The Court has so far delivered 138 judgments against Finland in which one or more violations of the Convention articles were found. The aim of this thesis is to study how these judgments have been executed by the Finnish authorities. The study showed that in Finland the national execution procedure was not very bureaucratic and that it seemed to work well. Most of the procedural shortcomings identified at the European level did not exist in Finland, and the majority of the proposed new ideas for increasing the procedural effectiveness seemed to already be in use. The research revealed that the overall effectiveness of execution in Finland was therefore at a very advanced level compared to some other countries. However, in absolute terms, there still seemed to be room for some improvement, especially in the co-operation between the Committee of Ministers and the Finnish government. When looking at the payment of just satisfaction and the taking of individual measures, the study showed that their execution was fairly effective in Finland, except in a few exceptional cases. In general the domestic authorities acted quickly and effectively when executing the Court s judgments as far as the payment of just satisfaction and the taking of individual measures were concerned. In these respects the execution could be qualified as effective both in the temporal and in the material sense. However, as far as reopening was concerned, it appeared that the Supreme Court s interpretations did not always demonstrate the most effective attitude towards the execution of judgments. It could thus be deduced that there was occasionally some reluctance on the part of the Supreme Court to actively give full effect to the Convention and the Court s case-law, especially in the context of reopening. The study also revealed that although the taking of general measures in Finland was mostly sometimes even extremely effective, both in a temporal and a material sense, in some situations there were certain visible signs of reluctance to take execution measures. This manifested itself as a certain wait and see mentality, which was visible in particular in situations in which more proactive attitudes would have been required. However, most of the general measures were taken effectively in Finland. One of the best examples of the effectiveness of the Finnish execution of general measures was the execution of the ne bis in idem cases, in which the execution was done long before the first judgments against Finland were even rendered. On the other hand, the taking of general measures in the length of proceedings cases represented a group of cases in which the temporal and material effectiveness of the execution was at its lowest.
  • Syrjä, Kari-Pekka (IPR University Center, 2016)
    The doctoral dissertation under the title Protection of the Service Concept and Intellectual Property Rights The service product and unfair imitation belongs to the field of intellectual property law. The dissertation consists of three parts and seven chapters. Firstly, the study focuses on whether the supplementary protection of achievement in relation to a service concept, in particular, a service product granted on the basis of article 1.1 under the Finnish Unfair Business Practices Act (SopMenL 1§ 1 mom.), can be justified and legitimized. Secondly, the study systemizes the general and specific criteria necessary for the supplementary protection of achievement under special circumstances and in a situation beyond IPR laws as well as provides an interpretation of these criteria. Thirdly, under the assumption that the respective law can be applied, the study investigates the substance and the form of protection arising from it in this context. The methods applied are the traditional approach of the normative theory of law (legal dogmatics) together with the method of comparative law, as demonstrated in a comparison to the respective laws of Germany and Sweden. The first part is the introduction to the topic. The second part includes Chapters 2 through 6. In Chapter 2 the legal framework of a service concept is introduced. This includes among other things how a service concept is positioned in legal dogmatics and in which way the legal right arising from the supplementary protection of achievement pursuant to article 1.1 under Finnish Unfair Business Practices Act (SopMenL 1§ 1 mom.) can be considered in legal doctrine de lege lata. Chapter 3 deals with the international legislative framework for unfair competition law, especially its general clause. The purpose of Chapter 4 is to deal with the historical development of the general clause [i.e. article 1.1 under the Finnish Unfair Business Practices Act (SopMenL 1§ 1 mom.] by drawing a comparison with the respective law in Germany (UWG). The specific emphasis is to examine how ratio legis and the secured interests of this law have changed over the course of social progress and what the impact has been in the context of the interpretation of law, especially in the context of the general clause. In Chapter 5 the general and specific criteria necessary for the supplementary protection of achievement under the general clause are systematized and interpreted for the application of those criteria in Chapter 6 in respect of the service concept. The third part comprises Chapter 7, which concludes the main remarks. Based on my research, the following can be concluded: Firstly, the study argues that a service concept may be protected under IPRs, but only in part. The supplementary protection of achievement according to Finnish Unfair Business Practices Act (Art. 1.1) beyond IPRs does not confer on the proprietor of a service concept an exclusive and absolute right, but only to the extent of relative intellectual property position (Art und Weise). Secondly, the comparison made between Finnish and German laws and their historical development proves that despite the almost identical ratio legis at the times of the enactment of the law in Germany and the law in Finland, the secured interests of the law diversified in the 1970s as the ideology of consumer protection penetrated into the Nordic countries, especially into Finland. At the same time, the German courts retained their attitude unchanged towards the secured interests. The UWG 2004 reform finally codified Schutzzwecktrias (i.e. the various secured interests for protection). Thirdly, although the general criteria regarding the application of the general clause are mostly parallel, the statutory law de lege lata differs [e.g. the Finnish Unfair Business Practices Act ( Art. 1.1) does not include any special criteria for application in case of unfair imitation] from the respective laws in Germany (UWG) and (MFL) in Sweden. Finally, the study argues that the supplementary protection of achievement in relation to a service concept, in particular a service product granted on the basis of Article 1.1 under the Finnish Unfair Business Practices Act against unfair imitation, is not excluded in a case, provided that (i) any of the respective IPRs cannot be applied to the case, (ii) the general and special criteria for protection are present, and (iii) there are special circumstances available such as the risk of distorted competition and market failure.
  • Nissel, Tzvika (Helsingin yliopisto, 2016)
    State responsibility is the doctrine that regulates international enforcement actions. Among international lawyers, there is a shared sense of mystery about State responsibility. While the doctrine clearly guarantees the enforceability of international law, its practice consistently languishes from a lack of international policemen. History is one lens through which to view this paradox. In this study, I describe the three most influential efforts to establish a legal standard for international enforcement actions: U.S. diplomatic practice, German legal theory and U.N. codification. In the late nineteenth century, lawyers in the U.S. State Department turned to international tribunals to redress alien injuries. These lawyers relied on international law to justify their legal intervention. Latin Americans, who were frequently the respondents of such claims, disputed the relevance of international law to its treatment of aliens; to them, alien protection was essentially a domestic affair. However, by the twentieth century, a U.S. practice of arbitration had established that States could be held responsible for breaching their international duties to protect aliens. The resulting awards were professional but haphazard. States were ordered to pay reparations for alien injuries, but why and how much they had to pay remained largely unarticulated. The first systematic treatment of State responsibility surfaced in late-nineteenth century Germany. These early writings were extrapolations from domestic principles of law rather than inductions of international awards. German lawyers viewed the U.S. practice of international arbitration as ad hoc settlements of private disputes rather than as the adjudication of public disputes. Thus, the German approach to State responsibility was not restricted to the field of alien protection in particular; it provide for the preconditions of international liability in general. When the U.N. undertook to codify the field, it chose to base its efforts on German theory rather than on the U.S. practice. This strategy divided State responsibility into general and specific parts. Generally, enforcement actions were subject to the U.N. doctrine. Exceptionally, a specific practice (e.g., alien protection) was permitted to continue as lex specialis. Contrary to many commentators, I see no crisis in this result. No singular doctrine has ever encapsulated the practice of international enforcement. Since the 1870s, international lawyers have employed State responsibility as a pliable concept to suit particular ends. By providing these perspectives, I hope to illustrate how three groups of lawyers practitioners, theorists and doctrinalists have been able to cope with the enduring mystery of State responsibility.
  • Saarinen, Sirkka (Edita Publishing Oy, 2016)
    OSAKEYHTIÖN JAKAMINEN TULOVEROTUKSESSA (TIIVISTELMÄ) Osakeyhtiön jakamisella tarkoitetaan normaalisti sellaista yritysrakenteen hajauttamista, jossa osakeyhtiön liiketoiminta tai liiketoimintoja siirretään yhdelle tai useammalle vastaanottavalle osakeyhtiölle, ja näiden yhtiöiden osakkeet siirtyvät vastaavasti jaettavan yhtiön tai sen omistustahon käsiin. Tässä tutkimuksessa painopistealueena ovat EU-oikeudellisen taustan omaavat yritysjärjestelymallit jakautuminen ja liiketoimintasiirto. Näitä yritysjärjestelymalleja verrataan tutkimuksessa myös kansallisen lainsäädäntötaustan omaaviin osakeyhtiön jakamisen tapoihin. Tutkimus painottuu tuloverotukseen, ja siinä on käytetty oikeusdogmaattista, kriittiseen arviointiin perustuvaa sekä veropoliittista lähestymistapaa. Osakeyhtiön jakamisella on monia liittymäkohtia yhtiöoikeudelliseen sääntelyyn. Yhtiöoikeutta tarkasteltaessa on otettu huomioon myös tähän alaan vaikuttavat EU-oikeuden yleisen järjestelmätason ominaispiirteet sekä erityisesti direktiivimuotoisen lainsäädäntöinstrumentin vaikutukset. Vero-oikeudellista järjestelmää tarkasteltaessa EU-oikeudella on samalla tavoin merkitystä, koska esimerkiksi osakeyhtiön kansainvälisiä jakamisia koskevat verotuksen sääntelymallit pohjautuvat EU-direktiiviin. Tämä direktiivi on toiminut lainsäädännöllisenä mallina myös kansallisia jakamisia koskevaa sääntelyä toteutettaessa, jolloin direktiivi voi ulottaa tulkintaa koskevia vaikutuksia myös tiettyihin Suomen sisäisiin, kansallisesti toteutettaviin toimintamalleihin. Tutkimuksessa on oikeudellista järjestelmää tutkittaessa ja arvioitaessa selvitetty myös EU:n integraatioprosessin yleistä merkitystä ja direktiivien vaikutustapoja sekä EU-oikeuden tulkintaongelmia erityisesti suomalaisen oikeustradition näkökulmasta. Tutkimuksessa pyritään selvittämään sitä, miten hyvän verojärjestelmän ominaisuudet (esimerkiksi neutraalisuus, maksukykyisyys, verovelvollisten yhdenmukainen kohtelu sekä oikeusvarmuus) ovat toteutuneet osakeyhtiön jakamista koskevan sääntelyn yhteydessä. Osakeyhtiön jakamisia toteutettaessa ilmenee erilaisia osakeyhtiölainsäädännön ja verolainsäädännön välisiä yhteensopimattomuustilanteita, ja niitä pyritään selvittämään ja arvioimaan myös veropoliittiselta kannalta. Yhtenä keskeisenä tutkimusongelmana on se, millaisia tulkintaongelmia on osakeyhtiön ja sen osakkeenomistajan verotuksessa osakeyhtiön jakamista koskevia verosäännöksiä sovellettaessa, ja millaisia ovat tulkintaongelmien ratkaisut käytännössä. Tutkimus painottuu kansallisiin osakeyhtiön jakamisiin, mutta siihen on lisäksi sisällytetty myös kansainvälistä vero-oikeutta koskeva lyhyehkö osa. Kansainvälisillä kysymyksillä on olennainen liittymä tutkimusaiheeseen, ja niiden avulla voidaan edistää myös EU-oikeuden vaikutusten selvittämistä kansallisen oikeusjärjestelmän tasolla. Osakeyhtiön jakamista koskeva keskeinen sääntely on luonteeltaan veronhuojennusperusteista, ja tätä taustaa vasten tutkimuksessa tarkastellaan myös veron kiertämistä ja veron välttämistä koskevia ilmiöitä sekä sitä, millaisia ratkaisutapoja veronkierto-ongelmiin on olemassa. Tutkimuksessa on selvitetty myös EU-oikeudellista oikeuksien väärinkäyttöä koskevaa ilmiötä ja sen merkitystä Suomen oikeusjärjestelmän näkökulmasta. Tutkimuksessa on tarkasteltu toisaalta lainsäädännön tasoa ja toisaalta lain soveltamisen tasoa. Esimerkiksi yhtiö- ja verolainsäädännön välisiä yhteensovittamisongelmia ilmenee käytännössä, ja ne synnyttävät jonkin verran ongelmia. Lisäksi etenkin kansainvälisen vero-oikeuden alalla on havaittavissa joitakin tarpeita lainsäädännön kehittämiseen. Suomen lainsäätäjä näyttää yleisesti onnistuneen melko hyvin yritysjärjestelydirektiivin implementoinnissa. Verolain soveltamiskäytännössä on kuitenkin ilmennyt joitakin ongelmia. Yritysjärjestelyiden monitahoinen luonne, niitä koskevan sääntelyn monimutkaisuus sekä etenkin kansainvälisissä yhteyksissä ilmenevä sääntelyn monikerroksisuus voivat toisinaan synnyttää käytännössä ongelmatilanteita, ja tältä pohjalta esimerkiksi ylimmän oikeusasteen linjanvetoihin ei voida kaikissa tapauksissa suhtautua kritiikittömästi. ASIASANAT: osakeyhtiö, yritysjärjestely, elinkeinoverotus, EU-oikeus, yhtiöoikeus
  • Kari, Markus (Into Kustannus Oy, 2016)
    Why did the norms governing the Finnish financial markets changed fundamentally over the 1980 s? To answer, this study applies the methodological framework of contemporary legal history: legal change is being placed to its relevant societal contexts. The 1980 s is a central decade in the transformation of the post-war Finnish society known as the Second republic to the Third republic, integrated to Europe. Also the nationalistic Finnish financial system characterized by regulation of interest rates, foreign exchange controls, and bank-centrality was transformed by creating new financial markets. The economic decision makers began to see Finland in the reference group of industrialized western or Nordic nations. The first perspective to the legal change is deregulation: dismantling the controls over interest rates and foreign exchange. Deregulation was in essence a long line of minor decisions taken by Bank of Finland. As a result, the law regarding finance was on a change. The second perspective to the change is reregulation: the birth of laws governing new markets and reformation of existing financial market laws. Such process was led by the senior officials of ministry of justice and ministry of finance. Reregulation was needed to create new financial markets. Such development was accepted by the main stream politicians. The process of change can be divided into three phases. The prime operator during the first period (end of the 1970 s around 1985) was Bank of Finland. Based on the analysis done by its economists, the central bank allowed more room for the private actors in the market. There is no evidence suggesting that Bank of Finland communicated its market creating plans to other economic policy makers or the general public. During the second period, (about 1986 87) two consecutive majority governments gave the mandate of legislating the stock markets and the option markets. Bank of Finland continued its deregulation. During the third period (from around 1988), the deregulation was finalized by Bank of Finland. A new round of legislation was passed, following closely the example of the European Communities. The third period can be labeled pre-integration, as Europeanization of the market took place before any political decisions to join the accelerating integration were taken. The three periods of legal change reflect pragmatic reactions to the 1980´s grand political changes in Finland and in Europe. The economic and political force of the Soviet Union was diminishing and European integration was accelerating. By the end of the decade a hubris of European integration existed in the Finnish society. A change parallel to the change in the financial markets can be seen within the human rights paradigm: Europeanization and more international perspective caused fundamental changes.
  • Sallila, Jussi (Helsingin yliopisto, 2016)
    This dissertation investigates the history of bankruptcy law in Sweden and Finland from the late seventeenth century to the 1860s. Because of the long time frame, the study focuses on fundamental questions of bankruptcy law. One can distinguish three such questions. First, the law must balance the possibility of giving the debtor a fresh start against the need to uphold creditor interests. Second, the legislation must determine the extent of public control of the management of insolvencies and the scope of the private autonomy of creditors. Third, when the proceeds of the insolvent estate are distributed, a balance must be struck between equal distribution and the differentiated treatment of creditors. The study focuses primarily on the treatment of the insolvent debtor, which was the most controversial question when Finland reformed its bankruptcy legislation in the 1860s. The new legislation differed from contemporary foreign models in that a composition accepted by the majority of the creditors could not limit the liability of the insolvent debtor by. Critics of the legislation argued that the possibility of a fresh start for the debtor was important for the needs of commerce and industry, and limiting such relief to cases where all creditors were unanimous conflicted with the standards of the civilized world. However, the legislation was defended with arguments underlining the sanctity of property rights and individual freedom. The drafters of the legislation also valued historical continuity, building on the tradition of Swedish law before 1809, when Finland was part of the Swedish realm. In Sweden, new bankruptcy legislation enacted in 1862 had departed from this tradition. In order to explain why Finland did not follow the example of other countries it is necessary to study the history of bankruptcy law over long haul, an analysis which reveals the ideological contrast between commercial utility and principles of justice in its social and political context. The main sources used in this study are the preparatory materials of Swedish and Finnish legislation, including proposals that did not go beyond the drafting stage. Parliamentary debates, newspaper commentary and legal literature have also been used. In a comparative perspective, one of the striking characteristics of early modern Swedish bankruptcy law was its uniformity. Attempts to establish special jurisdictions managing insolvencies did not lead to lasting results, and legislation was applied in general courts in both rural and urban areas. In most European countries, bankruptcy law had emerged as a special regime for persons engaged in commerce in a legal environment characterized by a plurality of jurisdictions and legal sources. In the nineteenth century, this commercial approach to insolvency was modernized, as commercial law and commercial jurisdiction began to regulate business transactions in a depersonalized sense. In such settings, regulating insolvency was also a matter of commercial utility. Sweden s decision to adopt the commercial model of bankruptcy law was criticised by high-ranking judges. The arguments of the Swedish reformers and critics resembled those in Finland a few years later and were indeed used as source material by the Finns. However, the relative influence of people promoting commercial utility and the standards of the civilized world was greater in Sweden than in Finland, while jurists upholding the strictly legal principles of individual rights were in a weaker position. The difference between the two countries is explained by the economic and political setting. Sweden was more closely connected to the expanding world trade, and commercial interests could shape legislation through public debate. In Finland, government policy was not similarly challenged by public opinion. Legal authorities had greater political influence, partly because of the importance of the legal tradition as a cornerstone of Finnish autonomy within the Russian Empire.
  • 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.
  • Tolonen, Hannele (Suomalainen Lakimiesyhdistys, 2015)
    This dissertation, which belongs to the field of procedural law, focuses on the procedural standing of children in custody proceedings and care proceedings. In the Finnish legal system, these proceedings are allocated to separate court systems. This study investigates the effects of this dual court system in situations where child welfare measures and the determination of custody, residence or contact overlap. The dissertation has two main goals: to systemize and compare the legal framework on children s standing in these court proceedings and to evaluate the procedural rights and the right to protection in each proceeding. The research is mainly based on legislative material, case law from the European Court of Human Rights and the national courts, and legal scholarship. In order to examine the effects of overlap of the proceedings at the level of individual cases and to illuminate children s participation in detail, court documents from 34 custody proceedings and 32 care proceedings were qualitatively studied. One of the main results of the study is that the overlap in the proceedings may cause several complications at the level of individual proceedings. In the cases that were studied, many children were affected by both the child welfare system and custody proceedings. In an acute situation, where concerns are raised for the safety of the child, but where the private and public parties disagree on the course of action, the dual process system adds to the complexity. The dual role of social agencies seemed problematic in the overlapping cases, where strong claims of partiality were voiced by the parties in the custody proceedings. In the studied care proceedings, the children who were assisted by a legal counsel participated most effectively and directly. To ensure that children are able to participate effectively in legal decision making, assistance should be provided for them in care proceedings. Especially for older children and in cases where the measures are motivated by the child s conduct, a lawyer should be appointed for the child. In the studied custody proceedings, children rarely participated directly in the proceedings. To enable individual assessment of the means of participation in light of the circumstances in each case, a more flexible approach should be adopted in determining children s procedural standing in custody proceedings. The need for impartial assistance should be considered, for example, in complicated custody cases or when a child is claimed to be at risk.
  • Tapola, Diana (Painosalama Oy, 2015)
    Scope of thesis lies in recognition and enforcement issues of foreign courts judgments and arbitral awards in Russia regarding commercial matters, which are arising from disputes between parties regarding their economic, trade, business and other commercial activities and resolved by a foreign court or arbitral tribunal. The thesis does not entail an actual discussion of the execution process conducted by a bailiffs service but presents: a background and introduction into Russian legal and judicial systems; consideration, analysis and systematization of legal grounds for enforcement of foreign judgments and arbitral awards; different enforcement regimes providing for manner of enforcement; requirements for enforcement leave and a competent authority for that; consideration, analysis and classification of grounds for refusals to enforce; review of judicial practice and its current tendencies. The thesis offers a deeper look into the most unusual and complicated issues of recognition and enforcement of foreign judgments and arbitral awards. To name few: to what extent a foreign judicial or arbitral act is empowered with the legal force of a national judicial act; correlation between international and national norms; if there is no particular specialized international treaty providing for those, what other treaties would suffice; on what grounds and how are recognition and enforcement possible in absence of international treaties; whether principles of comity and reciprocity are applicable in Russia and whether such application is imposed by international obligations. A part of the thesis addresses issues of enforcement leave and deals with some non-standard situations and their management in accordance with Russian law and practice. Several examples include issues when a foreign judgment, enforcement of which is sought in Russia: was already enforced or refused to be enforced in a third state; or if it is irreconcilable with another earlier judgment issued in Russia or another state; or the same dispute is currently under consideration by Russian or another foreign court; or if a party seeks enforcement of a court injunction of interim measure; or if it is required within the arbitral procedure. A substantial part of the thesis covers grounds for refusals to recognize and enforce foreign judgments and awards, where those are identified, analysed and grouped in accordance with the provisions of international and national legislation. The biggest part of the work is dedicated to the public policy. Despite guidance and interpretation of public policy in the international arena, the final word is after a national legislature. An attempt is made here, to describe a present situation and understanding of a public policy clause within the meaning of Russian legislation. A moderate part of the thesis is allocated to setting aside foreign arbitral awards and application of Article V(1)(e) of the New York Convention of 1958 on recognition and enforcement of foreign arbitral awards in Russia, the last part of which wording under law of which may cause a problem.
  • Tuunainen, Pekka (Talentum Oyj, 2015)
    The thesis Inheritance, testaments and debts covers both inheritance law and debt recovery law. The investigation method is based on law. It serves the interpretation and systematization of current legislation. The thesis constitutes an investigation of several branches of law. Recommendations for interpretation have been considered and evaluated in the light of general principles in various branches of law. A central theme of investigation is the compromise between the conflicting interests of an indebted heir and his/her creditors. For an excessively indebted person an inheritance evidently constitutes an increase of property, which could be used for satisfying the creditors. However, an indebted heir might wish to dispose of his/her inheritance in such a way that it is not used for satisfying the creditors interests. At the present time inheritances are economically important, because annually property to a value of approximately four billion euro is transferred in this way. Approximately 140 000 persons annually receive inheritances and it is evident that among them there are excessively indebted persons who receive inheritances of considerable economic value. I have examined the question how to dispose effectively of a future inheritance in relation to the creditors and after the decedent s death of a heir s share of the estate and how and at what stage his/her creditors can intervene in in this process. Another more extensive question from both the debtor s and the creditors point of view concerns the more advanced situation where the debtor s rights to the estate are subject to distraint, i.e. when his/her share of the estate has already been distrained. Private persons bankruptcies are rare in Finland and therefor I have left bankruptcy procedures outside the scope of this thesis. My examination concerns mainly situations where no partition of the estate has been made, i.e. the property is still subject to joint administration by the heirs and by the beneficiaries of the testament. In relation to a debtor s creditors he/she can in an effective way waive his/her right of inheritance and accept the decedent s testament. However, this has to be made in the proper and correct form. The debtor does not enjoy any period of protection for the waiver. The question is who reacts faster; the debtor by waiving his/her right of inheritance or the distraint officer by distraining the share of the estate. But on the other hand, a debtor can accept a testament that violates his/her right of inheritance without any time limit. This competition in the waiver of an inheritance may lead to problems of interpretation when the salient question is whether or not a heir has received his/her inheritance before waiving it. After the reception no waiver is possible and in that case the creditors can intervene in a disposal in the form of a donation and to revoke it by means of recovery. This demonstrates that although it is possible to waive an inheritance in an effective way in relation to the creditors, the general rules of property law otherwise apply to an inheritance, for example in relation to the creditors. In this respect the distinction is very strict, because the donation of an inheritance, where the creditors can intervene, from the parties point of view seems to be practically the same thing as a waiver of the inheritance, which is valid in relation to the creditors. My thesis demonstrates that a testament is an effective way of organizing an inheritance in such a way that the creditors cannot benefit from its value. The effectiveness of a testament is further emphasized by the circumstance that the separation in a testament of the rights of possession and of ownership in practice prevents the use of the inheritance to satisfy the claims of the creditors of both the owner and the possession holder. Also the fact that the debts of private persons are definitely time barred after a certain period (depending on the case either 15 years after a court payment order, or at the latest 25 years after the due date), makes testamentary arrangements a very effective way of protection against the creditors claims. It is also possible by a testament to separate possession and ownership for a certain period of time, or to postpone the time of transfer of ownership until the claims are time barred, in which case no effective recovery is possible any more. This is evidence of the conflicting objectives of different branches of law. The purpose of the legislator is naturally to protect the will of the testator in relation to other interested parties. My thesis also demonstrates that the distraint of the rights of one co-heir of the estate has extensive consequences for its administration. This constitutes a problem for the other co-heirs, who are external third parties in relation to the indebtedness of one of them. In the consideration of the legal consequences of the distraint of a share of an estate, the rights of the co-heirs of the debtor must also be taken into account. All in all, the use of property acquired by inheritance for the payment of a heir s personal debts seems to constitute a multidimensional whole and to require compromises between conflicting interests. Mostly compromises have been successful, but the problems of interpretation become more complicated and they affect more numerous interested parties when a part of an estate is distrained. These problems of interpretation can be solved by argumentation based on solid and reliable knowledge of several branches of law. The purpose of this thesis is to satisfy that need.
  • Vesala, Juha (IPR University Center, 2015)
    Innovation the development of new or improved products and technologies is a major source of economic welfare and growth. Due to its advantages, policy-makers seek to promote innovation in markets by addressing market failures that threaten innovation, such as the risk of free-riding through grant of intellectual property rights ( IPRs ) and concerns raised by market power in antitrust law. This article-based dissertation examines how antitrust (Articles 101 and 102 of the Treaty on the Functioning of the European Union) could treat certain practices involving IPRs in a way amenable to innovation. This poses a major challenge because practices often simultaneously involve aspects that are desirable for innovation (e.g. as a means of recouping investments) and harmful to it (e.g. lessening competitive pressures to innovate). Therefore, trade-offs are required between these conflicting aspects. However, as many innovation aspects are theoretically and empirically ambiguous, antitrust choices must be made under considerable uncertainty. Using methods of theoretical legal dogmatics and arguments from economics, the study develops approaches for the antitrust treatment of certain practices involving IPRs (misuse of IPR application procedures, enforcement of standards-essential patents, and conditions of licensing). As its main result, the study offers analytical approaches and antitrust standards that allow courts, authorities and firms to assess practices. The study finds, for instance, that although antitrust normally does not limit enforcement of IPRs, recourse to injunctive relief by essential patent holders can violate antitrust due to the specific context of standard-setting in which failure to uphold promises to license essential patents threatens competition, standardization and innovation. The study also presents broader observations on the role of antitrust protection of innovation. EU antitrust breaks new ground in extending its scrutiny to conduct in IP application and enforcement procedures, but this does not diverge from the established premise of antitrust only exceptionally intervening in the core of IPR. While conventionally antitrust has mostly been seen as limiting the exercise of IPRs, some practices examined interestingly highlight the possibly increasing role of antitrust in protecting IP holders interests and safeguarding rewards of innovators.
  • Creutz, Katja (Hakapaino, 2015)
    This thesis explores the law of state responsibility in international law from a critical standpoint. The main argument is that there are no longer justifications for holding state responsibility as the foremost responsibility system in international law. The importance of state responsibility has diminished; state responsibility has moved from a paradigm to the periphery in the international legal order. The thesis advances on two fronts to prove the veracity of the argument. First, it evaluates the law of state responsibility as adopted in the International Law Commission s 2001 Articles on State Responsibility in order to pinpoint problems in the general state responsibility rules. Second, the thesis explores how alternative constructions of responsibility, that is international liability and international criminal law, have overtaken portions of the state responsibility domain. Functionality is presented as the most suitable appraisal framework for an analysis of how state responsibility rules respond to challenges such as globalization and its actors, the diversity of responsibility ideas, and the normative fragmentation of responsibility in international law. The thesis thus prioritizes the practical usefulness of a responsibility regime in international law rather than abstract system-building functions. The exploration into the functionality of rules for state responsibility is preceded by an excursion into the evolution of state responsibility. The historical outlook will reveal how the rules developed, what dilemmas have characterized the state responsibility project and how these tensions have affected the formation of the ILC state responsibility rules. The critical appraisal of the general rules of state responsibility addresses a range of problems that relate to legal pluralization, form, function and implementation. It is argued that the state responsibility rules are unable to respond to the multi-actor and multi-issue world, to norm differentiation, and to the diversity of function, all of which contributes to the marginalization of the law of state responsibility. The thesis contends that the decision to create one all-embracing responsibility system for all kinds of violations of international law in order to build a credible international legal order actually led to lessened functionality. Real-world problems of crucial importance to the international community cannot be effectively handled under the state responsibility regime. From the demerits of state responsibility, the thesis proceeds to explore particularized responsibility regimes that have developed and strengthened as alternatives to state responsibility. International liability and international criminal law rules are explored from specific points of functionality that state responsibility is ill-suited to handle, i.e. social control, collectivity and the signalling effect. It is submitted that their particularity is an asset that allows regimes to deal with real problems in flexible and creative ways. They have thus effectively contributed to the side-tracking of state responsibility.
  • Korkka, Heli (Suomalainen Lakimiesyhdistys, 2015)
    The proceeds of crime shall be ordered forfeit to the State (Penal Code Chapter 10 Section 2 subsection 1). Crime shall not pay. Therefore, the offender or another person or entity that benefited from the offence must be ordered to forfeit the illegal proceeds. This doctoral thesis establishes a theoretically justified model on how the amount of the illegal proceeds should be quantified (the Theoretical Model). The doctoral thesis also demonstrates how the Theoretical Model functions in practice. The thesis analyses forfeiture in the context of corporate crime. A corporate offence is defined as an offence committed within legitimate business operations or in a business environment, for example, in the securities market. Forfeiture plays an important role as a consequence of a corporate offence, as the offence type typically generates considerable economic benefit. An activity qualifying as a corporate offence often produces both legal and illegal benefit. The Theoretical Model adopted in the doctoral thesis separates legal and illegal benefit and, thus, enables limiting the forfeiture to the illegal benefit only. The thesis is divided into three parts. The first part (Presentation of the Research Problem) sets out the regulatory basis of the Theoretical Model. Chapter 1 considers relevant regulation and the related main rules of interpretation. Chapter 2 analyses the nature of forfeiture as sanction by comparing forfeiture and punishment. The comparison is useful as, under the Finnish law, forfeiture cannot be used as a punishment. Chapter 3 establishes an interpretation method applied in the thesis. The provision on forfeiture entails an interpretative tension. On the other hand, forfeiture must not be used as a punishment (forfeiture must be limited to the benefit generated by an offence and not by other factors related to an offence), but, on the other hand, the crime cannot pay (forfeiture must cover all benefit an offence has generated, including indirect benefit). This tension between restrictive and expansive interpretation is managed in the thesis by forming two principles of interpretation: the prohibition of enrichment and the prohibition of punishment. The balance of the principles is relevant throughout the thesis, as it helps to calibrate the set of differing arguments applicable in a concrete situation. The second part of the thesis is devoted to the construction of the Theoretical Model. The model consists of four criteria: the causality requirement between an offense and benefit (Chapter 5), deductibility of expenses resulting from an offence (Chapter 6), estimation of the amount of the illegal proceeds (Chapter 7) and adjustment of forfeiture (Chapter 8). Amongst the criterion, the causality requirement is the most essential, as the causation criteria defines the subject of the forfeiture, i.e. the property a priori considered illegal proceeds to be ordered forfeit. The doctoral thesis adopts a two-phase causality model. At the first phase, the factual causality analyses empirically observable events. The aim is to establish what has happened and which factor in the surrounding world has had such a strong impact for the resulting event (here, illegal proceeds) that the factor can be considered a cause to the consequence. The latter phase analyses to what extent the factual causal connection established at the first phase is judicially relevant (the judicial relevance of the factual causality). At the second phase, the factual causal connection between the offence and the benefit is assessed against the objectives of the provision on forfeiture in order to establish whether the factual causal connection is relevant and, thus, whether the benefit qualifies as illegal proceeds under the Penal Code and, therefore, can be ordered forfeit. The third part of the thesis contextualises the Theoretical Model to the connection of selected corporate offences, i.e. abuse of insider information (Chapter 10) and environmental offences (Chapter 11). The aforementioned offences are selected due to their distinct nature as corporate offences. Abuse of insider information is committed in the business environment, i.e. in the securities market, whereas the environmental offences are most often committed within legal business operations. The contextualisation demonstrates the functionality of the Theoretical Model in practice. The different operational environment of the offences also entails diverging mechanisms of profit generation, which enables an analysis on how the theoretical model works in context of different types of offences. Through the Theoretical Model and its contextualisation, the doctoral thesis establishes that the forfeiture of proceeds of crime can and should be applied in accordance with certain general principles that are neutral as to the type of offence in question however, taking into account the diverging mechanisms of profit generation in different types of offences. The thesis guides the expedient and efficient application of the forfeiture of criminal proceeds, as well as furthers the consistency of legal practice in this respect.