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- 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. |
- 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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| 5. |
- Berglund, Kerstin, 1961-
(författare)
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Straffrätt och kön
- 2007
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This thesis starts in feminist theory and the debate on sex/gender and knowledge. There are two lines of inquiry, one in criminal law and one in feminist theory that interconnect throughout the book. Their common grounds are the depiction of the individual. In criminal law “man” is found first of all on the theoretical level as part of legal theory. Criminal law is based on the traditional liberal ideal of the autonomous individual. When criminal law is applied legal reasoning also demands an idea of what a human being is. Legal reasoning is therefore always dependent on descriptions of both “man” and “reality”. Feminist theory, in turn, deals primarily with sex/gender issues. In an attempt to structure this field of research and to highlight important differences in feminist theory, three positions are presented. The three positions are defined in terms of the ideological aspects of the sex/gender debate, and the epistemological theories that can be related to these different ideological positions.Different descriptions of “man” and “reality” can lead to profoundly different conditions for legal reasoning. In the book it is the contradiction between the idea of sex as a role played by a neutral individual, and the idea of gender as a fundamental aspect of human life, that is used as a starting point for the analyses of legal arguments. One question that is raised is in what way the understanding of harm to the individual changes when the conditions for describing “man” are altered. In order to answer this question, selected committee reports on rape and physical abuse of women during the period 1958 to 2001, are analyzed. All of these are to various extents related to the question of harm to the individual. When judging harm in the given examples, the gendered individual is used as an alternative way of describing “man”. The study concludes that it is important for criminal law to recognize that women are sexually abused because they are women. This is fundamental to the way in which these crimes must be interpreted. But it is also important to stress that women are sexually abused in their capacity of being women. It is argued that this constitutes the very basis for understanding harm to the individual in these cases. Victims of sexual violence are always embodied, gendered and socially situated. It is therefore important to find ways to define harm to the gendered individual. In brief, the conflicts surrounding criminal law today can be understood as the dichotomy between the liberal ideal of the autonomous individual and the feminist ideology of difference. It is therefore argued that there is a need for an ethical theory that includes the gendered individual.
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| 6. |
- Björkdahl, Erika P, 1967-
(författare)
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Lojalitet och kontraktsliknande förhållanden : En civilrättslig studie av förutsättningarna för ansvar vid förhandlingar eller andra kontakter mellan avtalsmässigt obundna parter
- 2007
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- Björkdahl, E. P., 2007. Lojalitetsplikt och kontraktsliknande förhållanden. En civilrättslig studie av förutsättningarna för ansvar vid förhandlingar och andra kontakter mellan avtalsmässigt obundna parter A Pre-Contractual Basis for Liability - A Private Law Study of the Conditions for Liability based on Negotiations and Other Contacts between Parties not Contractually Bound.The research objective of this dissertation is to investigate and clarify those behaviors in negotiations and other contacts between parties not contractually bound that are not viewed as acceptable in the sense that they can result in private law sanctions. The objective in general with this dissertation is to provide a systematization that can be used in an explanatory model for a basis of liability with respect to blameworthy behavior with negotiations and other contacts in non-contractual situations. Included in this objective is clarifying under which circumstances pure economic losses that have arisen in such situations can be compensated. The study begins with certain contractual regulations in order to examine the criteria that can be viewed as included in the explanatory model as to that which is a basis for liable behavior.The first main part of the dissertation, concerns situations in which the preparatory contacts between two parties lead to a contract. Mapped out in this part is a number of selected contract law regulations. The ambition of this approach is to delineate with the help of these regulations an action norm that can be utilized in the investigation of that which is blameworthy behavior with negotiations and other contacts between parties not contractually bound. In the second main part of the dissertation conclusions from the first part are applied on the non-contractual area. This part concerns situations in which the preparatory contacts are focused on a contract being entered into later between those parties communicating with each other, but in which a contract for different reasons is not executed and such situations in which contacts have the purpose of creating a basis or information to an agreement that is to be taken with another party outside of these contacts.
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| 7. |
- Bylander, Eric, 1973-
(författare)
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Muntlighetsprincipen : En rättsvetenskaplig studie av processuella handläggningsformer i svensk rätt
- 2006
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This doctoral thesis examines the different forms of procedural communication available to the Swedish courts. The choice traditionally stood between oral and written procedure. Today the procedure in the general courts is dominated by the principle of orality, while in the administrative courts, procedure chiefly takes the written form. This being said, the types of communication procedures used in courts today are constantly changing, the reason being, in part, the advent and advancement of new communication tools such as telephone, video and the internet.The cardinal aspiration for this doctoral thesis has been to prepare a generous substructure that will allow an assessment of how the principles that constitute the foundation for the choice of a form of procedural communication stand up against the arrival of new conditions. In attaining this goal the thesis takes stock of, structure, and evaluate the current knowledge of the regulation of the forms of procedural communication and the arguments that have been put forward regarding its design and application.The chosen method is a rhetorical-topical audit of the arguments provided by the legislative community. In addition it examines the relationship between these arguments and the activities of the courts and includes a comparative analysis of the current and historic conditions of the procedural communication forms.In the thesis nine different principle topoi (argument sources) for the analysed argumentation are identified and discussed: The Purpose of the Proceedings, Security, Speed, Cost-effectiveness, the European Convention on Human Rights and Fundamental Freedoms, the Decision-making, the Parties, Publicity and the Rules and Regulations.
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| 8. |
- Frändberg, Åke, 1937-
(författare)
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Rättsordningens idé : En antologi i allmän rättslära
- 2005. - 1
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Bok (övrigt vetenskapligt/konstnärligt)abstract
- Rättsordningens idé sätter det gemensamma hos de 25 uppsatser i allmän rättslära som ryms i denna bok i fokus. I en första avdelning av uppsatser utvecklar författaren sin syn på den allmänna rättsläran och dess uppgifter. I en andra avdelning behandlas rättsordningarnas natur och uppbyggnad. Bl.a. analyseras förhållandet mellan rätten och staten samt begreppet gällande rätt. I en tredje avdelning presenteras olika aspekter på rationell lagstiftning, rättstillämpning och lagtolkning. Bl.a. jämförs den juridiska tolkningen med tolkande verksamhet utanför juridiken. Också den svenska förarbetsanvändningens principiella problem berörs. En fjärde avdelning handlar om rättsstaten, rättssäkerheten och rättrådigheten, och i en uppsats diskuteras förhållandet mellan klokhet, humanistisk bildning och juridik. Bokens sista avdelning har en historisk karaktär och inne-håller bl.a. en studie av förhållandet mellan naturrättsläror och positivism. Boken avslutas med en exposé över svensk allmän rättslära och rättsfilosofi från Hägerström fram till 2004. De flesta uppsatserna har tidigare publicerats i tidskrifter, festskrifter m.m.
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| 9. |
- Gölstam, Carl Martin, 1969-
(författare)
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Licensavtalet och konkurrensrätten
- 2007
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- The purpose of this thesis is to describe and analyse the significance of economic thinking and arguments in the treatment of licence agreements in EC competition law. A central question is to what degree the concept of competition in EC law reflects an economically realistic approach to competition. The study also investigates to what degree the economic functioning of intellectual property is considered in competition regulation and how much the economic functioning of the licence agreement is considered. The investigation mainly consists of a comparative analysis of EC competition law and American antitrust law concerning the economic arguments and their importance. The treatment of territorial restrictions, field of use restrictions, quantity clauses, tie-outs, tie-ins, grant back, no-challenge clauses and price restrictions are of special interest here. This study shows that an economically realistic view of competition has influenced current EC competition law, especially in the Technology Transfer Block Exemption Regulation (TTBER). Exceptions from this development in the EC law are mainly due to the goal of integration of the common market. Territorial restrictions are strictly regulated in the TTBER even when the parties’ market shares are below the market thresholds defined in the regulation.The function of intellectual property rights are not much considered in EC competition law but there are general remarks about the economic functioning of patents in the Guidelines for the TTBER. However, it is difficult to find evidence for economic reasoning about patents in the formation of concrete rules. On the contrary, patents are weakened by the widened concept of exhaustion presented in the Guidelines.The economic functioning of the licence agreement is considered in the rules of TTBER and the economic arguments for clauses which create incentives for making investments or give the possibility of control are acknowledged. However, the free riding argument has a weak position when applied to territorial restrictions, which are more formalistically regulated.The EC competition law has become more similar to American antitrust law. The decisive difference consists in the judicial treatment of territorial restrictions, where the goal of integration is still of central importance in EC law.
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| 10. |
- Marklund, Linda, 1975-
(författare)
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Skolmedling i teori och praktik
- 2007
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Licentiatavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This thesis aims to answer the questions; what and were does peer mediation fit into the theoretical and practical frameworks of mediation? How does peer mediation fit into the retributive legal system as it stands today? What problems can arise with the use of peer mediation, its organizations and with the use of adolescent peer mediators, in a legal perspective? When it comes to the question of where peer mediation has its theoretical framework the hypothesis in this thesis are that peer mediation, with respect to the practical framework, is a hybrid of the settlement driven mediation and the transformative mediation. The theoretical framework comes from the philosophy of restorative justice (RJ), primarily the victim-offender mediation in the sense that if peer mediation per se is not enough it has to bee a whole school approach for it to work. In RJ, the community is as important as the primarily parties, the offender and the offended. In school conflicts, the community is the whole school, and as such it has to bee the whole school that is involved in the conflict management program. The method used in this thesis is the traditional method of jurisprudence combined with two case studies. The first case study is the "Peer mediations Project" that in fact was the starting point for the research. The aim with this case study is too show how peer mediation can work in Sweden, both on an organizational and a practical level. In doing so it also highlights which legal questions that is relevant for this thesis. The second case study is the "Spice conflict". This case study aims to make researcher go deeper in the legal issues as well as to illuminate a school conflict and how it can progress. The fist chapter gives a background for peer mediation and the focus of this thesis, as well as the first contact with the two case studies. Chapter two gives a legal background for the thesis. Chapter three deals with conflict theory and chapter four with schools conflicts and the different programs there is to handle those conflicts. In chapter five the different mediations models are presented more in depth and discussed from at mediation perspective. Chapter six goes deeper into the second case study in an effort to resolve the legal issues that has arisen. In the last chapter there is a discussion which originates from the five Nordic principles of mediation, facilitative, peaceably, freely, confidently and restoratively, in conjunction whit mediation, conflict and legal theory.
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