| 1. |
- Samuelsson, Joel, 1973-
(författare)
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Tolkning och utfyllning : Undersökningar kring ett förmögenhetsrättsteoretiskt tema
- 2008
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This is a thesis in contract law concerning the distinction between interpretation of contracts (“tolkning”) and construction of contracts (“utfyllning”) traditionally upheld within Scandinavian doctrine. To some extent, this distinction has always been a source of conceptual confusion, but in late-modern times, it has, in certain respects, become almost unintelligible – owing to the gradual loss of function of the form of rationality that originally sustained it. The distinction is now a mere artefact. In itself, this fact does, of course, not make this particular conceptual contraption exceptional. As they are absorbed into the language of contract law, all successful contract law concepts undergoes a process of reification. In the case of the distinction between interpretation and construction, the result is, however, unusually curious.In its traditional form, the distinction expresses the hope for a law of contract that is organized according to scientific principles. It rests on the assumption that it is desirable and possible, in principle, to separate science from non-science. It presupposes that questions of fact are separable from questions of law, Is from Ought, and the uncovering of the meaning of legal documents from the application of the rules they contain. The distinction promises that it is possible to escape the confines of the law-text, to reach beyond the text and the play of words constituting its interpretation, in order to ground interpretive discourse in factual reality. Yet, the distinction itself is nothing but text, i e, nothing but law.Drawing on the Kantian tradition, specifically on the writings of Wittgenstein, the author subjects this contradictory structure to criticism. The aim of the study is, however, not to once and for all remove the contradiction. On the contrary, the policy advocated is one of acceptance – mediated through historical awareness. By distancing ourselves from the vision of law and science that is immanent in the distinction under scrutiny, we would be able to come to terms with the hermeneutical side of contract interpretation, and with the inscrutability of the subjective dimension of the contract construct. When interpretation is called for, it is due to the very fact that there is no verifiable intention, yet the conclusions of the interpreter are given in the form of reports on what the parties actually intended. This, the author concludes, does not make the interpretation of contracts unscientific, even though we, being Scandinavian private law lawyers, were fostered to think otherwise.
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| 2. |
- Ahlström, Christer
(författare)
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The status of multilateral export control regimes : An examination of legal and non-legal agreements in international co-operation
- 1999
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This thesis deals with the phenomenon of states concluding international agreements that are, explicitly or impliedly, of a non-legal character. It is first of all argued that states have the option under international law to conclude legally binding agreements or agreements that lack this quality. Subsequently, the thesis addresses the question of how to differentiate a legally binding transaction from a non-legal one. By means of an analysis of the substantive elements of treaties and unilateral declarations it is found that the distinction primarily relates to the subjective intention of the representatives concluding the agreement or making the declaration. Relating this subjective substantive element to the manifestly informal character of the concept of treaty and thenotion of unilateral declaration, i.e., the general lack of mandatory requirements as to the form of a valid transaction, it is concluded that an objective determination of the status of an ambiguous international transactionis often problematic. The question of the material differences between legally binding international agreements and non-legal agreements is also assessed. It is argued that there are substantial and important differences, and,consequently, that it is important to maintain the distinction. The theoretical observations made in relation to the phenomenon of non-legal agreements are also related to a defined empirical material-i.e., five multilateral export control regimes on the non-proliferation of weapons ofmass destruction. The analysis of the status of the foundational documents of these regimes largely corroborates the theoretical observations made as to the problems of determining the formal status of an ambiguous international agreement. The tentative conclusions drawn as to the status of the export control regimes under international law are subsequently related to a discussion of the domestic implementation of the regimes in one country. This study corroborates the finding that the foundational documents of the multilateral export control regimes are of a non-legal character.
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| 3. |
- Aldestam, Mona, 1968-
(författare)
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EC State aid rules : An analysis of the selectivity criterion
- 2005
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- The application of Art. 87(1) EC to taxes above all is connected to the application of the derogation method, which appears to be part of the selectivity criterion. This dissertation examines the application of the derogation method and the assessment of the selectivity criterion applied to taxes, primarily de lege lata, but also de lege ferenda. It begins with an analysis of the relationship among the criteria of Article 87(1) EC and continues with an analysis of the relationship between the derogation method and the assessment of the selectivity criterion applied to taxes. Several scholars have criticised the application of the derogation method because of the difficulty of identifying a derogation and of establishing the benchmark against which the derogation should be assessed. In this dissertation both the benchmark and the establishment of a derogation is analysed, partly with reference to the tax expenditure debate that occurred in the subject area of international taxation during the 1970s and 1980s. The selectivity criterion applied to taxes contains an assessment of justification, whereby the selective nature of a measure can be justified on the basis of the nature or general scheme of the system: Therfore the meaning and implications of this assessment are also examined. After all these issues have been examined de lege lata, the extents to which the application of the derogation method and the assessment of the selectivity criterion follow a logical system are discussed and recommendations for eliminating the identified deficiences are put forward.
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| 4. |
- Alexius Borgström, Katarina, 1967-
(författare)
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JO och tjänstemännen : En laghistorisk studie
- 2003. - 500
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Bok (övrigt vetenskapligt/konstnärligt)abstract
- The purpose of this project is to study the Swedish Parliamentary Ombudsman Institution (JO) and its supervision of civil servants in the 20th century. Liability for misuse of office, the obedience obligation and the shaping of the principle of independence will also be considered. The study proceeds from a jurisprudential framework and is based on a legal dogmatic approach, although statistical information and other materials from the social sciences are also included. The findings of the study are as follows. The abolition of criminal liability for misuse of office in the mid-1970s resulted in a termination of the relationship which originally existed between civil servants’ authority under the principle of independence on the one hand, and their liability for service irregularities on the other. As a result, this reform entailed a pervasive change in one of the mainstays of the Swedish administrative model. The change was however of marginal importance to the activities of the JO, since a small and extraordinary office cannot effectively enforce legality and civil rights within a large public sector by initiating proceedings and demanding liability for committed errors. During the latter part of the 20th century, the JO thus evolved from having been a prosecutor who ensured that civil servants did not neglect their official duties into serving as a source of preventive guidance for government and municipal agencies. The question of how congruence is to be achieved between the civil servants’ liability for service irregularities and the powers of public authority is however, given the findings of this study, still largely unanswered.
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| 5. |
- Alhager, Magnus
(författare)
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Dispens från inkomstskatt
- 1999
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This dissertation is a study of special exemption rules in Swedish tax law. These rules are formulated as exeptions to the general rules of taxation, providing relief from tax liability in specific cases. It is a fundamental principle of Swedish law that the power of taxation - as well as other forms of public power - be exercised in accordance with the law, which in this context means duly enacted legislation by the component organ of state. The power to grant exemption from taxation must therefore also be exercised in accordance with duly enacted statutes and/or other rules. However, special exemption differs from other exeptions provided by rules in tax legislation. Application for special exemption is lodged at a special administrative body (the Special Exemption Board). Special exemption does not constitute any part of the annual assessment of the taxpayer. Furthermore, the application is dealt with under a special procedure for this purpose. This dissertation provides a review of the legal rules governing the treatment of special exemption in the field of income taxation. Attention focuses on aspects of legal certainty and efficiency in the administration of special exemption applications. The present study aims to examine one of the least explored areas of tax law. This study also discusses the particular problems of legal interpretation in the absence of judicial precedents (of the administrative courts) to which one can refer in other areas of income tax law. This study shows that the concept of special exemption is unsatisfactory as an instrument of relief from tax liability, both from the point of view of legal certainty and of efficiency in administration. The conclusion then, is that de lege ferenda rules of special exemption should be abolished and replaced by ordinary rules within theincome tax system.
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| 6. |
- Almkvist, Gustaf
(författare)
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Förmögenhetsbrott och förmögenhetsrätt : Om straffansvaret i 8 och 10 kap. brottsbalken och dess förhållande till civilrätten
- 2020
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- The property offences, understood in a broad sense, are constructed in a way that pre-sup- poses rules on property, obligations, agency, possession and similar basic concepts of pri- vate law. That raises the question whether the offences simply refer to the private law – and if so in what way – or if the special character of the criminal law implies a different, independent understanding of the various concepts that are mentioned in the different offences.This thesis aims to answer that question with the help of both a specific analysis of some of the most important property offences in Swedish law – such as theft, embezzle- ment and breach of trust – and a general analysis of possible ways of understanding the relationship between private law and criminal law in the field of the property offences. The analysis is supported by a broader reflection on the nature of legal reasoning, espe- cially in the criminal law, and the nullum crimen sine lege principle and what it means to be bound by the words of a statute.The general analysis starts off in the history of the property offences in Swedish law and of the ideas that have influenced Swedish private law during much of the 20th cen- tury. The influence of Scandinavian Legal Realism and Functionalism on the private law means that reasoning in terms of general concepts, which is central to the criminal law, is often seen as unsuitable or even untenable. While this must be acknowledged when the property offences are analysed, it is ultimately a question for the criminal law how to understand its own subject matter.Based on that conclusion and in an interplay with the specific analysis of the various offences, the provisions of the offences are categorised as being either accessory or auton- omous. Most aspects of the position that is attacked or misused – such as ownership or obligation – can be understood as accessory to the private law, in the sense that a private law conclusion is considered a matter of fact in the criminal law. On the other hand, most aspects of what it means to attack or misuse the position – such as stealing or keeping someone else’s property as one’s own – can be seen as autonomous questions, where the private law has few or no answers to provide. The challenge in both cases, which is the theme of the remainder of the thesis, is to determine the closer meaning of the provisions of the property offences.
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| 9. |
- Andersson, Torbjörn
(författare)
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Rättsskyddsprincipen : EG-rätt och nationell sanktions- och processrätt ur ett svenskt civilprocessuellt perspektiv
- 1997
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Bok (övrigt vetenskapligt/konstnärligt)abstract
- Genom Sveriges medlemskap i EU har den svenska rättsordningen blivit föremål för partiella, men fundamentala, förändringar. Några år efter anslutningen har förändringarna börjat märkas i den praktiska juridiska verksamheten. Individer och företag uppmärksammar i allt högre utsträckning att EG-rättsliga regler har betydelse för dem. Det blir allt vanligare att Svenska domstolar ställs inför att tillämpa EG-regler. I boken behandlar författaren mötet mellan EG-rätt och nationell sanktions och processrätt vid domstolar i medlemsstaterna. Det perspektiv som anläggs är den svenska civilprocessens. EG-domstolen har under en knapp trettioårsperiod utvecklat rättsskyddsprincipen i syfte att ge EG-rätten praktisk verkan i medlemsstaterna. Rättsskyddsprincipen styr i hög grad den nationella processen då EG-regler tillämpas. Principen har t.ex. betydelse vid bedömning av skadeståndsfrågor, interimistiska åtgärder samt preklusions- och preskriptionsfrister. Boken innehåller en genomgång av EG-domstolens praxis med avseende på olika sanktionstyper och processregler. Vidare behandlas rättsskyddsprincipens betydelse på områden där det saknas praxis från EG-domstolen samt de problem principen föranleder. Författaren framhåller att de nationella domstolarnas roll och processens funktion förändras vid tillämpningen av EG-regler. Nya ändamål tillkommer och domstolarna tvingas inta ett nytt förhållningssätt till inhemska sanktions- och processregler. Boken avslutas med ett hanteringsschema, en strukturerad genomgång av frågor som aktualiseras vid tillämpningen av EG-rätt på nationell nivå.
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| 10. |
- Asp, Petter
(författare)
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EG : S sanktionsrätt : ett straffrättsligt perspektiv : [a criminal law perspective]
- 1998
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This is a thesis in criminal law that mainly deals with questions concerning EC law. This may appear a bit strange since the commonly accepted view is that the EC lacks competence in the field of criminal law. Whether the popular opinion is correct depends, however, on what you mean by words such as "criminal law" and "punishment". It is clear that EC law affects national criminal law in various ways and that the EC has competence with regard to certain administrative sanctions which are hard to distinguish from traditional punishment. This thesis is devoted to these supranational sanctions.When it is said that a sanction is supranational (or belongs to EC law) this means that EC authorities have legislative competence, i.e. competence to enact the rule in question.Examples of supranatinal sanctions are the fines that are imposed for infringements of the competition rules and sanctions such as exclusion from aid-schemes, reduction of aid etc. The latter types of sanctions are used above all within the CAP.The overarching purpose of the study is to analyse EC law sanctions from a criminal law perspective. This purpose can be stated more concreely in the following way:(1) to put the EC sanctions in context. The first task has therefore been to describe the structural connections between EC law, national criminal law and supranational sanctions.(2) to analyse and evaluate the supranational sanctions from a criminal law perspective.(3) to analyse the relationship between punishment and other types of (administrative) sanctions.
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