Legal Certainty and Fundamental Rights

Name: Legal Certainty and Fundamental Rights | A Cross-Disciplinary Approach to Constitutional Principles in German and South African Law
Brand: Nomos
Price: 114.0 EUR
Availability: OnlineOnly

A Cross-Disciplinary Approach to Constitutional Principles in German and South African Law

Charl Hugo Thomas M. J. Möllers(Editor)

Nomos (Publisher)

1st Edition

Published on 24. November 2020

440 pages

E-Book

PDF with Adobe-DRM

System requirements

978-3-7489-0606-3 (ISBN)

€114.00incl. 7% vat

System requirements

for PDF with Adobe-DRM

E-Book Single Licence

Available for download

Description

More details

Other editions

Content

Cover
Introduction
I
II
III
IV
The Rise of the Neo-Patrimonial State in South Africa: From the Rule of Law to the Rule of Persons
I. Introduction
II. Key features of a neo-patrimonial state
III. The South African version of the rational-legal state
IV. The South African version of the neo-patrimonial state
V. Conclusion
Bibliography
Register of cases
Comment: Rule of Law under German and European Constitutional Law - Comments on the Rise of the Neo-Patrimonial State in South Africa: From the Rule of Law to the Rule of Persons
I. Introduction
II. The rule of law - "thin" or "thick"?
III. The rule of law in the German Constitution
IV. The rule of law in the EU
V. Conclusion
Bibliography
Register of cases
Legal Certainty in Terms of Head-of-State Immunity from an African and an International Perspective: The Article 27(2) Conundrum
I. Introduction
II. Events leading to the "Jordan Appeal"
III. Interpreting Article 27(2) in accordance with the Vienna conventions
IV. An overview of the debate as highlighted by the Jordan Referral
V. International and African Perspectives
1. South Africa
2. Democratic Republic of the Congo
VI. Conclusion
Bibliography
Register of cases
South Africa
ICC Cases
Comment: Head of State Immunity in Times of Uncertainty for International Law
I. The ICC Appeals Chamber judgment in the Al-Bashir case and the persisting uncertainty surrounding head of state immunity
II. Head of state immunity and the uncertain foundations of current international law
III. The interplay between immunity and methodology in the Al-Bashir case
IV. Conclusion
Bibliography
Register of cases
International Court of Justice
International Criminal Court
Permanent Court of International Justice
Special Court for Sierra Leone
Kenya
South Africa
United Kingdom of Great Britain and Northern Ireland
United States of America
Legal Certainty and International Crimes: A Public International Law Perspective
I. Introduction
II. Customary international law and the strict interpretation of opinio juris and usus
III. The core international crimes and the ICC Statute
1. Genocide
2. Crimes against humanity
3. War crimes
4. Crime of aggression
IV. International crimes in terms of the Malabo Protocol
V. Conclusion
Bibliography
Register of cases
International Criminal Court
International Court of Justice
International Criminal Tribunal for Rwanda
International Criminal Tribunal for the Former Yugoslavia
International Military Tribunal
Permanent Court of International Justice
Special Court for Sierra Leone
United Nations Documents
Internet Sources
Comment: Legal Certainty and Human Rights in the European Legal Order - The Treatment of Preventive Detention in the German Federal Constitutional Court and the European Court of Human Rights
I. Introduction
II. The "lively tension" between legal certainty and substantive justice
III. The nulla poena and nullum crimen principles in the European legal order
1. Legal foundations of the principles
a) The German Constitution
b) The European Convention on Human Rights
c) The European Charter of Fundamental Rights
d) Difference in scope and content
2. Legal certainty caught in judicial dialogue
a) The German twin-track system of sanctions
b) Preventive detention as a measure of correction and prevention
c) Qualifying preventive detention: the BVerfG's view
d) Strasbourg's divergent view on the definition of "penalty"
e) The implementation of the ECtHR's judgment in German law
3. The role of the Convention in the German legal order
IV. Reciprocal influences
V. Conclusion
Bibliography
Register of cases
The Significance of the Erga Omnes Obligation to Prosecute Genocide for Legal Certainty in International Criminal Law
I. Prefatory remarks
II. The time period immediately following the commission of gross human rights violations within the responsible state
1. The establishment of a new government
2. The investigation of alleged violations and establishment of criminal tribunals and courts
3. Peacebuilding
III. Erga omnes obligations regarding individual criminal responsibility
1. Aut dedere aut judicare - the duty to extradite or prosecute
2. The obligation to cooperate with international or national criminal courts and tribunals
3. Primacy and the principle of complementarity: the relationship between national and international criminal courts and tribunals
IV. Civil accountability in terms of the principles of state responsibility
V. Conclusion
Bibliography
Register of cases
Permanent Court of International Justice
International Court of Justice
International Criminal Court
International Criminal Tribunal for the Former Yugoslavia
South Africa
Preventive Justice and the Dangerous Offender: Seeking Solutions to Protect Society
I. Introduction
II. Preventive detention in various jurisdictions
1. South Africa
a) Declaration as habitual criminal
b) Declaration as dangerous criminal
c) Life imprisonment
2. England and Wales
a) Life imprisonment
b) Imprisonment for public protection (IPP)
c) Extended sentences
3. Canada
a) Dangerous offenders
b) Long-term offenders
c) Preventive recognizances
4. Germany
a) Life imprisonment
b) Post-sentence preventive detention
III. Discussion
Bibliography
Register of cases
South Africa
European Court for Human Rights (ECtHR)
England and Wales
Canada
Germany
The Legislative Possibilities and Challenges Relating to the Private Possession and Use of Cannabis in South Africa
I. Prefatory comments
II. Introduction
III. In the High Court
IV. In the Constitutional Court
V. The right of an employer in terms of Section 7 of the Employment Equity Act
VI. Comparative perspectives
VII. Concluding remarks
Bibliography
Register of cases
Comment: The Legalization of Cannabis in Germany
I. The current legal position
1. Criminal liability today
a) The universal problem of criminalizing "soft" drugs
b) Introducing the BtMG
c) The term "small quantities"
2. The "Cannabis Decision" of the BVerfG
a) Background
b) The judgment of the BVerfG
c) Criticism
3. Drug offenses under Section 29 BtMG between 2007 and 2018
II. Approaches to legalization
1. Criticism
2. Cannabis allowed as medicine
3. Further approaches to legalization
a) The "Cannabis Control Act" - Green Party
b) Motions by the Free Democratic Party and the Left Party
c) The Federal Government's view
III. Discussion and conclusion
Bibliography
Register of cases
Sustainable Development, Bureaucratic Implementation and the Need for Jurisprudential Certainty
I. Introduction
II. The emergence of sustainable development in the international arena
III. The introduction of sustainable development into South African law
IV. The nature of environmental decision-making and sustainable development - a challenging mandate
V. Jurisprudential beginnings - authorisations and adjudication in the early years
VI. Building new jurisprudential dimensions on decision-making and sustainable development - more recent developments
VII. Jurisprudential development in the compliance and enforcement context - the early years of adjudication
VIII. A step backwards? - Concurrent and recent compliance and enforcement judgments
IX. Conclusion
Bibliography
Register of cases
Comment: Sustainable Legislation
I. Preliminary remarks
II. Sustainability in German and European environmental law
1. Sustainability in German environmental law
2. Sustainability in EU law
3. From three pillars of sustainability to 38 reference topics
III. Sustainability as a procedural concept
IV. Sustainability as a general guideline for legislation
1. Internal guidelines of the Federal Government
2. Institutional complementation in the German Bundestag
V. Conclusion: Disillusion
Bibliography
Labour Law, Vulnerable Workers and the Human-Rights Paradigm
I. Introduction
II. Labour law and human rights
III. Significance of interpretation in the activation of human rights
IV. The role of the courts in extending protection to vulnerable workers
V. Concluding remarks
Bibliography
Register of cases
Comment: Discrimination in Working Life and Anti-Discrimination Law - Experiments and Experiences in Germany and Europe
I. Introduction: an era of experiments and experiences in legislation against discrimination
II. Prosecution of discrimination and available sanctions
III. Persons protected and persons responsible in cases of discrimination
IV. Prohibited grounds of discrimination
1. Legal situation in Germany
2. Legal comparison in Europe: more or less prohibited grounds?
3. Practical significance of the listed grounds
V. Legal consequences of discrimination, and sanctions against discrimination
1. Challenges for the legislature
2. Current German law
3. Experiences and evaluation
VI. Institutions against discrimination
VII. The problem of abuse of the law and fraud: major problem or a trivial matter?
1. Problems in law and society
2. Experiences in practice
VIII. Conclusion
Bibliography
Register of cases
Equality, Legal Certainty and Insolvency
I. Introduction
II. Legal certainty
III. Equality and insolvency law
1. The fundamental right to equality
2. Equality in Sarrahwitz
a) The judgment
b) Implications and criticism
3. The right to equality and the ranking of claims in insolvency
4. Equality and the existence of secured claims
5. Equality and the recognition of statutory priorities
IV. Alternatives to the pari passu ranking of remaining claims
V. Conclusion: To equality and beyond?
Bibliography
Register of cases
Comment: The Principle of Equal Treatment of Creditors and its Limits Under German Law, Illustrated on the Basis of the Law on Limited Liability Companies
I. The relationship between private autonomy and equal treatment of creditors under German law
1. Civil law and commercial law
2. Insolvency law
II. No general principle of equal treatment of creditors (par conditio creditorum)
III. Insolvency law for legal entities, such as limited liability companies (GmbH)
IV. Duty to file for insolvency
V. (Restricted) equal treatment of creditors upon insolvency of the GmbH
VI. Refusal to open insolvency proceedings for insufficiency of assets
VII. Objectives of the liquidation of a GmbH
VIII. No general principle of equal treatment of creditors in the winding up (liquidation) of a GmbH
IX. Winding up of a GmbH with no assets
X. Legal policy considerations de lege ferenda
XI. Summary
Bibliography
Register of cases
Market Conduct Regulation in Perspective: Triumphs and Tribulations post Twin Peaks
I. Introduction
II. Supervisory framework: Overview
III. Legislative instruments
1. The Financial Services Regulation Act
2. The Insurance Act
a) Aim of the Act
b) Classification of insurance business
c) Financial inclusion and microinsurance
3. The Policyholder Protection Rules
a) Introduction
b) Product service and design
c) Promotion and marketing
d) Advice and point of sale
e) Information after point of sale
f) Complaints and claims handling
4. The COFI Bill
IV. Critical evaluation
V. Conclusion
Bibliography
Register of cases
Comment: Market-Conduct Regulation in Germany and Europe
I. Introduction
II. The supervisory system in German capital markets law
1. The current position - a critical analysis
a) The BaFin
b) The relationship between supervisory authorities and the public prosecutor's office
2. Legal proposals
a) Establishing a Germany-wide public prosecutor's office for capital markets crimes
b) The right to implement regulatory sanctions
III. The supervisory system in European capital markets law
1. Harmonisation efforts over the past few decades
a) The Lamfalussy process
b) Larosière: from the CESR to the ESMA
2. Proposals with a view to future regulation
a) In favour of more: A European task force
b) In favour of less: devolving authority on the basis of irrelevance to the internal market
c) Realising European legal principles and regulatory objectives under capital markets law
Bibliography
Register of cases
European Court of Justice (ECJ)
German Federal Constitutional Court (BVerfG)
German Federal Court of Justice (BGH)
Federal Administrative Court (BVerwG)

System requirements

Save as PDF Copy link into clipboard

Schweitzer Fachinformationen

Legal Certainty and Fundamental Rights

Description

More details

Other editions

Additional editions

Content

System requirements