| 11. |
- Duus-Otterström, Göran, 1978
(author)
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Punishment and Personal Responsibility
- 2007
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Doctoral thesis (other academic/artistic)abstract
- What justifies punishment? What are the features of a justified penal regime? Answers to these questions often centre on punishment’s capacity to change unwanted behaviour, either by deterring would-be rule breakers or addressing their criminal motivations through various forms of rehabilitation. This book instead defends (a version of) the retributive theory of punishment, according to which punishment should aim to give rule breakers what they deserve. Why should desert play such a role in penal justice? The book dismisses the controversial notion of intrinsic-good retributivism, and instead proceeds to identify two merits of a penal regime that aspires to give rule breakers what they deserve. On the one hand, such a regime is in better alignment of central principles of justice, such as principles against punishing the innocent and taking pre-emptive action against potentially dangerous individuals. On the other hand, retributive punishment conveys attractive symbolic messages, which serve to validate rule breakers as personally responsible agents whose choices warrant respect. Having defended the retributive theory on normative grounds, the book then discusses a formidable factual criticism that hits all desert-sensitive theories: starting by questioning the alleged difference between scientific explanations and excuses, the book challenges the factual plausibility of the notion of personal responsibility and entertains the possibility of hard determinism being true. While hard determinism is a stronger position than one may think, a pragmatic argument can be made against it: given that libertarian free will is “worth wanting”, and given the epistemic uncertainty surrounding it, it is defensible to bet that determinism is false and that people indeed can be personally responsible for their actions. Punishment and Personal Responsibility may be understood as a defence of “prescientific” morality in the age of science.
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| 12. |
- Gerson, Anna, 1977-
(author)
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Compensation of Losses in Foreign Subsidiaries within the EU : A Comparative Study of the Unilateral Loss-Compensation Mechanisms in Austria and Denmark
- 2009
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Doctoral thesis (other academic/artistic)abstract
- This study commences in the problems related to the restricted possibilities for cross-border groups to take losses incurred in foreign subsidiaries into account upon taxation. These difficulties lead to the situation where the overall tax burden of the group, seen as an economic unit, might exceed its economic capacity. Such over taxation is likely to cause the cross-border group cash-flow disadvantages, liquidity problems, reduced expansion possibilities and it might also effect the organisation and location of the group’s business activities. This study has two research aims; firstly to analyse unilateral compensation of losses in foreign subsidiaries de lege lata, and secondly to analyse the consequences of different alternatives, as well as refraining from taking specific measures, upon opening up a unilateral system to cover also foreign losses de lege ferenda. In these respects, the experiences from the Austrian and Danish unilateral loss-compensation systems, under which losses incurred in foreign subsidiaries are acknowledged, serve as valuable sources of information. The findings in the study are evaluated based on the fundamental objectives that ought to be balanced from the perspective of the group as well as the loss-granting state. These objectives are; the recognition of the ability of the cross-border group, seen as an economic unit, to pay taxes; the prevention of double dip of losses, and the prevention of arbitrary as well as permanent income shifting between MS.
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| 13. |
- Grylin, Hanna, 1984-
(author)
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Passivitetsrätten vid skattetillägg
- 2019
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Doctoral thesis (other academic/artistic)abstract
- When a taxpayer fails to fulfill the obligation in Chapter 30 Section 1 and Chapter 31 Section 3 of the Swedish Tax Procedure Act, skatteförfarandelagen (2011:1244), the STPA, to submit information about his or her taxable income, he or she becomes liable to pay a tax surcharge. Decisions about tax surcharges can be made in both administrative and criminal proceedings. In fact, decisions on tax surcharges may be made due to a taxpayer’s passiveness during a criminal tax procedure, regardless of the intent. However, the European Court on Human Rights has established that a person’s silence is not, in itself, sufficient proof for a conviction. This causes a tension between the obligation to submit information about taxable income and the right to silence and the right against self-incrimination in the Swedish tax surcharge procedure.The purpose of this thesis is to analyze the relationship between the Swedish system of tax surcharge and the right to silence and the right against self-incrimination according to the ECHR, the EU Charter, Article 3 Section 1 (e) of Directive 2012/13/EU and Article 7 of Directive 2016/343/EU. The method used to analyze these problems and discuss solutions combines a legal dogmatic method with an autonomous interpretation of the right to silence and the right against self-incrimination. The analysis shows that problems occur after the point where a taxpayer has been charged with a criminal offence according to the autonomous meaning of the concept. This point in time corresponds to the point in time when action is taken by the Swedish Tax Agency that has a substantial impact on the taxpayer. The analysis also shows that if a tax surcharge is levied only because of a taxpayer’s silence, after that point, there has been a violation of the right to silence and the right against self-incrimination according to the autonomous meaning.The conclusion of the thesis is that there is a need for an amendment to the STPA, which reinforces the autonomous meaning of the right to silence and the right against self-incrimination in the Swedish tax surcharge procedure. This includes new rules in the STPA, which define 1) a duty for the Swedish Tax Agency to inform taxpayers about the right to silence and the right against selfincrimination, 2) the scope of the taxpayer’s obligation to submit information about taxable income in relation to the right to silence and the right against selfincrimination and 3) rules on exemption from tax surcharge when it violates the right to silence and the right against self-incrimination.
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| 14. |
- Hallengren, Anders, 1950-
(author)
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The code of Concord : Emerson's search for universal laws
- 1994. - 1
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Doctoral thesis (other academic/artistic)abstract
- The purpose of this work is to detect a pattern: the concordance of Ethics and Aesthetics, Poetics and Politics in the most influential American thinker of the nineteenth century. It is an attempt to trace a basic concept of the Emersonian transcendentalist doctrine, its development, its philosophical meaning and practical implications. Emerson’s thought is analyzed genetically in search of the generating paradigm, or the set of axioms from which his aesthetic ideas as well as his political reasoning are derived. Such a basic structure, or point of convergence, is sought in the emergence of Emerson’s idea of universal laws that repeat themselves on all levels of reality.A general introduction is given in Part One, where the crisis in Emerson’s life is seen as representing and foreshadowing the deeper existential crisis of modern man.In Part 2 we follow the increasingly skeptical theologian’s turn to science, where he tries to secure a safe secular foundation for ethical good and right and to solve the problem of evil.Part 3 shows how Emerson’s conception of the laws of nature and ethics is applied in his political philosophy.In Part 4, Emerson’s ideas of the arts are seen as corresponding to his views of nature, morality, and individuality.Finally, in Part 5, the ancient and classical nature of Concord philosophy is brought into focus.The book concludes with a short summary.
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| 15. |
- Helmius, Ingrid
(author)
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Polisens rättsliga befogenheter vid spaning
- 2000
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Doctoral thesis (other academic/artistic)abstract
- This thesis investigates the legal authority to use power available to police in pursuing secret surveillance to detect and take legal measures against crimes. It analysis the regulations governing different methods of surveillance, and how they balance public and private interests in legislation as well as in its application.The systematization of the methods of secret surveillance shows a well-reasoned, comprehensive picture needed for the development of a better legislation regarding the security of private life. This is equally pertinent to the interests of the individual police officer. The incorporation of the European Convention on Human Rights into the Swedish legal system in 1955 entailed changes with regard to rights to privacy. In most cases the Convention provides a stronger protection for the right to respect for privacy than does the Swedish Constitution. No methodological investigation was made of the effect of the incorporation of the convention into Swedish legislation which, as a consequence, lacks legal ground for some surveillance methods. Moreover, the protection of privacy provided by the Constitution has not been fully and sufficiently recognised.The legal principles for administrative agencies are more or less expressely observed in legislation. In the application of the law the principles seem to bee adhered to in equal measure when they are explicit in the legislation and when they are not. The study shows however, that the basic principle of legality is not taken into sufficient consideration. Without credibility there is a risk that effective crimefighting is undermined by suspicions of police misuse of powers.
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| 16. |
- Ingvarsson, Torbjörn, 1967-
(author)
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Borgensliknande säkerhetsrätter
- 2000
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Doctoral thesis (other academic/artistic)abstract
- Säkerheter för krediter kan utformas på en rad olika sätt. Flera typer av säkerheter liknar eller ersätter borgen. Avhandlingen avser att besvara frågan: När är borgensreglerna tillämpliga på en garanti som inte betecknas som borgen och vilka blir effekterna av att borgensreglerna befinns vara tilllämpliga.I arbetets första del uppställs kriterierna för att en konkret säkerhet skall klassificeras som borgensliknande. Tesen uppställs att de borgensliknande säkerhetsrätterna som huvudfall bör vara underkastade borgensreglerna. Denna utgör utgångspunkten för den vidare analysen av de enskilda säkerhetsformerna.I studiens senare delar behandlas bland andra frågot i vilken mån stödbrev, bankgarantier och garantier i försäkringsform är underkastade borgensreglerna. Förutom dessa obligationsrättsliga säkerhetsrätter behandlas även den borgen närstående tredjemanspanten.Arbetet avslutas med en argumentation för en revidering och kodifiering på samnordisk bas av garantirätten.
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| 17. |
- Johansen, Tormod Otter, 1985
(author)
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Förvaltning som verksamhet – bidrag till offentligrättens allmänna läror : Administration as activity: Contributions to the general theory of public law
- 2019
-
Doctoral thesis (other academic/artistic)abstract
- The thesis gives a contribution to the general theory of administrative and public law in order to develop a systematic and conceptual framework for better and more realistic descriptions of public administration. The central claim is that administrative law should take as its starting point the fact that public administration is concrete activity. This instead of focusing on administrative procedure and exercise of public authority (myndighetsutövning). Rather than being seen as a peripheral aspect surrounding the normal core of administrative procedure, the concrete activity should be seen as the normality. Administrative procedures and exercise of public authority instead function as exceptions which are procedurally regulated to a higher degree. The understandable focus in administrative law on these parts of public administration activity should thus be adjusted through a shift of perspective towards administrative activity as a whole. The first chapter describes the theoretical and methodological approach. The first aspect is a broader view of public law, inspired by global administrative law, international public authority, the German tradition of Staatslehre , the contemporary revival of administrative law in the Neue Verwaltungsrechtswissenschaft, and political jurisprudence (Martin Loughlin). Theoretical inspiration comes from Scandinavian legal realism, the shift of focus from the sovereign towards the administration (Michel Foucault, Giorgio Agamben). Also concerted action (Hannah Arendt) and concrete order thinking (Carl Schmitt) as part of a broader vein of institutionalist thinking (Santi Romano, Marco Goldoni). The methodological approach is inspired by the concept of description (Anne Orford, Michel Foucault) as well as a materialist perspective and immanent critique (Karl Marx). The second chapter consists of a close reading of all important doctrinal and legislative sources in Swedish administrative law pertaining to the theme of the study. Important findings include: The great difficulty with which administrative law can grasp the heterogenous activity of public administration; The negative definition of administration as what is left of state or public activity when legislation and adjudication is positively defined; The critical development of the concept of exercise of public authority in connection with the codification of general administrative law in the Swedish Administrative Procedure Act of 1971; The lack of positive definitions and in general discussion, theoretical or otherwise, of concrete activity in administrative law literature. The third chapter develops the immanent critique through an analysis of the different components of administrative activity, especially before, during, and after an administrative decision. Six new or developed concepts are suggested: unregulated administration; measure as a basic concept in administrative law; forms of administrative action (Handlungsformen); two dimensions of exercise of public authority; consumption of exercise of public authority in decisions; and a special administrative relation to complement the general administrative relation and the private law relation. The fourth and final chapter summarizes the preceding study and suggests future avenues of research. The main aim here is to further develop a broader public law discipline, incorporating international research, comparative studies as well interdisciplinary sources. Along this path there is a hope and potential for a restored eclectic discipline that could take up the mantle of what Hegel called a »science of the state».
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| 18. |
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| 19. |
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| 20. |
- Karlsson-Tuula, Marie, 1961-
(author)
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Rekonstruktion av företag inom insolvenslagstiftningens ramar : en jämförande studie av svensk och amerikansk insolvensrätt
- 2001
-
Doctoral thesis (other academic/artistic)abstract
- Insolvency law is the rooth of commercial and financial law because it obliges the legislator to chose. There is not enough money to go round so the law must chose who to pay. The law must always decide who is to bear the risk so there is always a winner and a loser. The insolvency law has been at the policy agenda in many countries in the last years. In France, Germany, Italy, Japan and other countries have the legal frameworks changed from liquidation procedures to reorganization business. The legal situation in Sweden has also changed from compositions to reorganization business, lagen om företagsrekonstruktion. The key issues are to encourage the formal proceeding by enlarging the debtors control of the business and by inroads creditors rights, in which case the proceeding is pro-debtor.This dissertation compares Swedish and American Bankruptcy Codes with respect to similarities and differences at macro- and micro perspectives. Chapter 11 Reorganization Business in America provides a corporate rehabilitation model, which has been used in other countries. The dissertation also compares the use of the concepts of - the purpose, - the function and - the direction of Swedish and American Bankruptcy Laws in order to establish whether the law is pro-debtor or pro-creditor. The key indicators of whether the rescue proceeding is pro-debtor or pro-creditor include; - How easy it is to enter the rescue proceeding. Debtor's incentives to commence proceeding, freeze on executions and liquidation petitions, impact on security, impact on title of finance, impact on set-off and netting, impact on contract rescissions and lease forfeitures. Disclaimer and abandonment, ability to replace the management, financing of the rescue, scope of the rehabilitation plan. It is argued that the optimal bankruptcy law can be achieved if the law purpose, the function and the law direction relate to each other in Sweden, in both reorganization business and in the liquidation code and it also compared with the American Bankruptcy Code. According to my opinion this is important both in a national and international context.The dissertation also deals with debtor's contract in an insolvency situation in reorganization business and in liquidation. Swedish Laws are compared to the American Bankruptcy Code and point out similarities and differences. In the American Bankruptcy Code there is a special section 365 § BC dealing with executory contract, this section is nearly the same for both the reorganization- and liquidationproceedings. The contracts must be unperformed which means the obligation of both the bankrupt and the other party in the contract are so far unperformed that the failure of either to complete performance would constitute a material breach excusing the performance of the other. If the contract is unperformed the debtor has the possibility to chose if the contracts shall be assumed, assumed and assigned or rejected. Section 365 § BC requires the court to consider whether assumption of the contract in question will further be needed in either rehabilitation or liquidation of the bankruptcy estate. The court reviews the financial impact of the estate and if it is benefiting becoming administratively obligated to perform. The court also review if is best to breach the contract. In Sweden we have different sections which regulate the situation. One section in our reorganization law, lagen om företagsrekonstruktion, we also have two special sections in the law of Sale of Goods, which deals with contract when a debtor became insolvent or file for reorganization business. But we don't have any section in our liquidation law, konkurslagstiftningen, which in my opinion is very strange. We also have a problem with the legislation about swaps and netting which are regulated in a special law, lagen om handel med finansiella intrument. Particular attention is given to the advantages and disadvantages of the existing rules in Swedish legal system compared with 365 § in American Bankruptcy Code. From a national point of view such section should preferably include all types of contract in only one section which is nearly the same as the American model of section 365 §.
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