| 1. |
- Karlsson-Tuula, Marie, 1961-
(författare)
-
Rekonstruktion av företag inom insolvenslagstiftningens ramar : en jämförande studie av svensk och amerikansk insolvensrätt
- 2001
-
Doktorsavhandling (övrigt vetenskapligt/konstnärligt)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 §.
|
|
| 2. |
|
|
| 3. |
- Eneman, Marie, 1969
(författare)
-
Developing child protection strategies: a critical study of offenders’ use of information technology for the sexual exploitation of children
- 2010
-
Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- The overall aim of this thesis is to critically explore offenders’ use of information technology for the sexual exploitation of children, focusing upon child abusive material and grooming, in relation to the societal response, i.e. legal and technological regulation models. The following aspects are highlighted (i) How can offenders’ use of information technology for child abusive material and grooming be understood in relation to current regulation models? (i) What alternative models for regulation of child abusive material and grooming could be proposed? (iii) What are the implications of applying a critical approach? The motivation for conducting this research has been to contribute, with empirically based research, to the development of effective child protection strategies in relation to child abusive material and grooming. The empirical material used in this thesis consists of court and police records and interviews with offenders. The result shows that offenders’ use of information technology for child abusive material and grooming is more complex and multifaceted than current regulation models have managed to envisage. It has been recognized that the offenders are aware of the illegality in their activities and thus the risk of being observed by law enforcement and have therefore developed different technological and social strategies to be able to continue with their criminal activities. Therefore, this thesis suggests that existing regulation models such as law and the use of technology for filtering should be re-evaluated and that further dimensions such as norms and markets should be considered.
|
|
| 4. |
- Bruncevic, Merima, 1981
(författare)
-
Fixing the Shadows – Access to Art and the Legal Concept of the Cultural Commons
- 2014
-
Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- Fixing the Shadows: Access to Art and the Legal Concept of Cultural Commons studies access to art as knowledge, and the role law plays in facilitating access. The research project discusses how to advance and strengthen access to art and create legal pathways that facilitate communication, access to and sharing of art as knowledge. Thus, the study introduces the legal concept of cultural commons and discusses how such a concept may be introduced to law and given a legal platform. The study utilises the theories and methods of the French philosopher Gilles Deleuze (1925-1995) and the French psychoanalyst Félix Guattari (1930-1992) in dealing with law and jurisprudence. It focuses particularly on the concept of the rhizome. The theoretical aim of the study is to develop a critique of dogmatic law and to study particular obstacles to access to art created by traditional approaches to legal concepts. Consequently, through a rhizomatic jurisprudence a legal concept of cultural commons is developed and presented. The study is divided in two volumes. Volume I is called “Beyond the ontological question” and it studies obstacles to access to art created by law and certain types of traditional legal reasoning, it aims to bring forth the potential of law. Volume II analyses the cultural commons as a legal concept and is called “The Performativity of the Commons”. Volume II analyses the potential of a legal concept of cultural commons.
|
|
| 5. |
- Bylander, Eric, 1973-
(författare)
-
Muntlighetsprincipen : En rättsvetenskaplig studie av processuella handläggningsformer i svensk rätt
- 2006
-
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.
|
|
| 6. |
- Bäckman, Therese, 1981
(författare)
-
Gynnande besluts negativa rättskraft och rättssäkerhet – för människor med funktionsnedsättning inom rättsområdena SoL och LSS
- 2013
-
Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- A principle of legitimate expectations exists in a number of countries and legal systems. This thesis examines the implications of the principle and its application on a municipal level and in the administrative courts in a Swedish context. The aim of the thesis is to examine whether persons with disabilities are ensured legal certainty, through the principle of legitimate expectations, after they have received a formal legal decision about support in their every day life according to the Social Services Act (2001:453), SoL or according to The Act Concerning Support and Service for Person with Certain Functional Impairments (1993:387), LSS. The Swedish principle of legitimate expectations implicates that a favor- able decision may not be changed or revoked after the individual has received notice of the decision. This applies even if it subsequently turns out that the decision is found to be incorrect. The authorities have to stand by their decisions. The individual can feel secure that the decision may not be reversed or altered and he/she are therefore free to plan and adjust his/hers life in accordance with the decision. However Supreme Administrative Court case law has formulated three exceptions from the principle. Exceptions may be made when 1) a decision is provided with a revocation statement; 2) imperative security reasons require modification or revocation; 3) the individual has obtained the decision by false information. In addition Supreme Administrative Court case law also provides an exception that applies specifically to favorable non time-limited decisions under SoL and LSS. In this thesis the concept of legal certainty requires fulfillment of both procedural and substantial requirements. Furthermore it is concluded that the principle of legitimate expectations can be described as a guarantee for legal certainty from a theoretical point of view. However, the examination of the application of the principle shows how the municipalities have rather ample opportunities to make exceptions with the use of statements of revocation. Additional opportunities to make exceptions or circumvent the principle have also developed in practice. The relatively large possibility to make exceptions from the principle and the extended ways to circumvent the same means that it is difficult for the principle to fulfill the procedural requirements linked to the concept of legal certainty. The application of the principle also leads to social insecurity for persons with disabilities that have been granted support in every day life in accordance with SoL and LSS. Previous research has concluded that persons with disabilities are faced with legal problems within the areas of SoL and LSS. This thesis shows that persons with disabilities are faced with additional problems due to lack of legal certainty. The image of the legal problems within SoL and LSS needs to be complemented with the problem that the individual is in fact not guaranteed the support and service that he/she has been granted. He/she can not feel confident that the favorable decision will prevail.
|
|
| 7. |
- Duus-Otterström, Göran, 1978
(författare)
-
Punishment and Personal Responsibility
- 2007
-
Doktorsavhandling (övrigt vetenskapligt/konstnärligt)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.
|
|
| 8. |
- Johansen, Tormod Otter, 1985
(författare)
-
Förvaltning som verksamhet – bidrag till offentligrättens allmänna läror : Administration as activity: Contributions to the general theory of public law
- 2019
-
Doktorsavhandling (övrigt vetenskapligt/konstnärligt)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».
|
|
| 9. |
|
|
| 10. |
- Kern, Jhonnie
(författare)
-
Wreck Law - A Systematisation of Legal Interests and Conflicts
- 2021
-
Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- The purpose of this thesis is to systematise legal interests and conflicts in relation to wrecks and wreck removal. The ambition of the systematisation is to provide a framework and a perspective of this area of law and the context in which these interests and conflicts reside. In order to achieve this, a classification of different wrecks is made. Wrecks are distinguished based on the problems that they can cause as well as other factors such as proprietary interests, ethical aspects and time. The study explores wrecks that pose hazards to the environment or to the navigation of other vessels, as well as wrecks that are subject to different needs of protection as a consequence of being dangerous, historical or sites that contain human remains. Wrecks are also distinguished in relation to time depending on whether the wreck is historical, modern or in-between these two categories. In relation to all these aspects, several jurisdictions, ranging from English law to the Nordic legal systems, and the variety of norms and perspectives that they bring to the area have been studied. Also the historical background to these issues as well as different interpretations and definitions of wreck are discussed. The systematisation can be used in various ways, e.g. in order to analyse problems involving wrecks and wreck removal as well as discussing possible regulatory mechanisms and solutions that can deal with the identified interests and conflicts. By systematising the interests and conflicts, a structure is created which makes it easier to approach and understand this area of law and the legal norms that are involved. The contribution of this work amounts to new knowledge because of the understanding that the structure brings as a whole but also in its different parts along with the legal issues that are analysed there.
|
|
