Showing papers on "Common law published in 2022"

The right to effective judicial protection with respect to acts imposing restrictive measures and its ransformative force for the Common Foreign and Security Policy

Abstract: This article focuses on the scope and limits of the right to effective judicial protection (Art. 47 CFR) in the context of the Common Foreign and Security Policy (CFSP). This right has been broadly interpreted by the ECJ in a way that transforms this policy. The principle of effective judicial protection is used as a vehicle to assert the Court’s jurisdiction but also to extend access to the Court of Justice to third countries, as well as to protect individual rights, including those of former Heads of State or Government who are subject to judicial proceedings in their home country. The article argues that the broad scope of the right to effective judicial protection, resulting from various strands of the case law, is a welcome development in the CFSP, which is in line with the nature of the EU and with its founding values. Yet, in the Venezuela ruling (Case C-872/19 P), the interpretation offered by the ECJ stretches the limits of Article 47 CFR and of the rule of law too far. Restrictive measures; Common Foreign and Security Policy; Court of Justice; Right to effective judicial protection; Article 47 CFR

OUP accepted manuscript

Abstract: This article considers some of the issues arising from the evolution of social and legal understandings of what constitutes “family” in the modern era and the impact of that evolution on older settlements. The article considers the common law’s default conception of familial relationships—who was a settlor’s spouse or child for example—and how that default conception could have been displaced by a settlor or testator. The article then considers some of the legislative interventions of the 20th and 21st centuries and the impact of human rights legislation which have altered the common law’s traditional understanding of family relationship. The article reviews several important cases, including the recent decision of Goodrich v AB [2022] EWHC 81 (Ch), which have considered the impact of these interventions on older settlements. Finally, the article considers some practical tips for settlors, trustees and beneficiaries.

General Principles of Law as Common Constitutional Traditions of the European Union Member States

Abstract: The article examines the notion of “common constitutional traditions” of the European Union Member States looking for the content of this open-ended term. It is agreed and even on the international level that fundamental rights are the part of the common constitutional traditions, but in this article, it is suggested to connect the notion with the notion of the general principles of law thus obtaining more comprehensive and elaborate understanding of what the content of the common constitutional traditions really involve. General principles of law are a common source of law to all the legal arrangements of the European Union Member States as they are derived from the same Basic Norm – democratic state based on the Rule of Law, and fundamental rights are only one part of the general principles of law as they are much wider notion. That is why looking from the perspective of the general principles of law as common source of law of all the legal arrangements based on the Basic Norm – democratic state based on the Rule of Law common constitutional traditions besides the human rights involve also legal methods and those general principles of law which govern the system requirements for the legal arrangement.

“In This Case, Can There Be No Talk About Such a Justification Through Circumstances”? A Case Study of the Invocation of Cultural Defense Outside the Common Law

Abstract: Cultural defense as a court strategy was developed in the countries of common law, which are characterized by contradictions of criminal proceedings and a wide scope of a party’s impact on the course of a trial. However, its appearance is not limited to any particular legal system. The subject of this chapter is a case study of a court case in which arguments based on cultural defense were raised in particular conditions—within the Polish legal system, in a country that is relatively homogeneous and in which the main process initiative is within the judges’ competence. In accordance with the characteristics of an intensive case study, the research consisted of examination of court files, which included testimony of an expert in culture, critical analysis of the text of judicial opinions and analysis of relevant media publications. Application of such multi—method approach enabled detailed consideration of the issue of admissibility of invocation of cultural defense in particular institutional and formal settings. It also depicted necessity of adaptation of the framework of the case study in reference to court case as a particular subject of research.

Article: The Potential Relevance of the CJEU Case Law on Group Taxation Under the EU/UK Trade and Cooperation Agreement

Abstract: The Court of Justice of the European Union (CJEU) ruled that the national treatment provision in Article 49 Treaty on the Functioning of the European Union precludes Member States from disallowing consolidation between entities resident in the same Member State, where the top holding or intermediate holding company is resident in another Member State. After the United Kingdom left the EU from 1 January 2021, this case law no longer directly applies to situations with a top holding or intermediate holding company resident in the United Kingdom. However, the Trade and Cooperation Agreement concluded and in force between the EU and the United Kingdom (TCA) contains in Article 129 a provision on national treatment. The authors argue that the TCA could be interpreted in line with the national treatment provision in Article 49 TFEU and the case law of the CJEU on this. Notwithstanding the absence of any direct effect to the provision of the TCA, Member States should interpret their bilateral tax treaties in line with the TCA. The consequence is that the non-discrimination provisions in existing bilateral tax treaties between Member States and the United Kingdom should be interpreted in line with the TCA. Group regimes, Brexit, Trade and Cooperation Agreement, Non-Discrimination, National Treatment, Capital Ownership, Bilateral Tax Treaties, Interpretation of EU law, Interpretation of Bilateral Tax Treaties

Medical Negligence Law in Australia

Abstract: Liability for medical negligence in Australia follows the common law pattern, viz a plaintiff needs to prove duty, breach, and causation of damage which is not too remote. Australian law distinguishes sharply between two aspects of a doctor’s duty. On the one hand, diagnosis and treatment is governed largely by a standard of what is widely accepted by peer professional opinion by a significant number of respected practitioners in the field, as competent professional practice. On the other hand, doctors have a duty to advise of material risks. A risk is material if a reasonable person, in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is, or should be, reasonably aware that the particular patient, would do so.

Genealogy and Reform of Islamic Family Law: Study of Islamic Marriage Law Products in Malaysia

Abstract: As an Islamic country, Islamic family law reform in Malaysia is experiencing various dynamics. This article aims to examine the genealogy, reform, and products of Islamic family law in the field of marriage (munakahat) in Malaysia. The authors find that Malaysia’s Islamic law reform is divided into three periods using literature research. In the Malay period, Islamic values were generally embedded in the law in Malaysia. During the British colonial period, English law had dominated and was used as common law, which was absorbed in various legislation and jurisprudence in Malaysia. It was only after independence that efforts to reform and codify Islamic family law began, marked by the stipulation of the jurisdiction of the federal territorial government and the territorial government into thirteen states. The codification of family law began with establishing a committee to amend Islamic law and be guided by other Islamic countries. The authors find four areas of marriage that have been reformed in Malaysia, namely the age limit for marriage, marriage registration, polygamy, and divorce. Among the four areas of marriage law, the authors find slight differences in regulations on the technical and material grounds in each state in Malaysia.

Good Faith and Relational Contracts: A Scots-Roman Perspective

Abstract: One of the most striking differences between the Civilian jurisdictions and the English common law has been the reluctance of the latter to adopt a general principle of good faith in contract. Scots law, however, often seeks to exercise the functions of good faith but does not recognise it as a general principle. In recent years, English law has begun to identify good faith as an implied term in “relational contracts”, a concept with sociological and economic origins. This article applies that development to Scotland by exploring the relationship between good faith and the relational contract from a Scots-Roman perspective. It will be shown that the historical sources of Scots contract law, from the Roman reception to the Institutional Writers, are fully compatible with relational contracts. It goes on to consider how a Scots law approach to good faith in relational contracts might orientate itself to the English authorities.

Contract Negotiations and the Common Law: A Move to Good Faith in Commercial Contracting?

Abstract: Abstract Classically a duty to negotiate commercial contracts in good faith has been seen as part of the civil, not the common, law world. Common law commercial lawyers have long resisted the lure of “good faith” as a contractual concept, despite engagement with civil law principles in harmonisation projects, by virtue of membership of the European Union and their use in international conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). This paper will examine whether this situation is changing, focusing on two common law jurisdictions—England and Wales and Canada. In England and Wales and the common law of Canada, case-law in the last 10 years has indicated a movement towards acceptance of express and implied duties of good faith in relation to contractual performance, see e.g. Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) and, most recently, Essex CC v UBB Waste (Essex) Ltd (No. 2 ) [2020] EWHC 1581 (TCC) in England and Wales; Bhasin v Hrynew 2014 SCC 71 and Callow v Zollinger 2020 SCC 45 in Canada. This paper will examine the extent to which these cases may open the way more generally for a duty to negotiate commercial contracts in good faith. It will examine the reception of these cases and whether they indicate (i) greater acceptance of “good faith” as part of contract law thinking and (ii) a possible extension of good faith into the pre-contractual period.

A comparative analysis of derivative action in Cypriot company law: Comparison with English company law and the prospect of statutory reform

Abstract: This article provides a comparative analysis of derivative action in Cypriot company law and submits some proposals for statutory reform on the basis of English company law. The derivative action in Cyprus company law is based on common law and is not codified into the text of Cyprus Companies Law-Chapter 113. Regarding the derivative action, the Courts of Cyprus refer to pre-1960 English cases as authorities. However, as this article explains, Cypriot Courts have not followed all developments with regard to the derivative action in English company law, despite the original and elaborated solutions given to many difficult issues by English cases and the statutory derivative claim under the English Companies Act 2006, which replaced the old ‘exceptions to the rule in Foss v. Harbottle’ regime. In fact, quite a few issues related to the remedy are yet to be considered by Cypriot law; case law is scarce and uncertainty looms over (potential) derivative claimants. Taking into account the origin of Cypriot company law from English company law, the jurisprudential and legislative evolution of the derivative action in English company law constitutes a fertile ground for the modernization of derivative action in Cypriot company law. It is therefore hereby submitted that the Cypriot Courts and the Cypriot legislator seek insight from the rich experiences and the multi-faceted evolution of the English law on derivative action, in an effort to address existing problems and establish a modern and functioning framework.

The fascinating theory of common ownership under the lens of competition law practitioners: any needs to rethink the antitrust toolbox?

Abstract: During the last years there has been a prolific academic debate on the possession by institutional investors of minority shareholdings in firms active within the same industry, leading to a potential distortion of market dynamics (the so-called “common ownership” theory) . T he common ownership doctrine raises a number of questions, and it should be looked at with caution in light of the prejudice that an incorrect antitrust assessment may have over the activities of financial institutions. This article attempts to clarify the reasons why the still new and fascinating theory of common ownership as a means of distortion of market dynamics has a long way to go before being an antitrust enforcement priority. It is debatable the same notion of the existence of a direct causality between common ownership and anticompetitive effects, whereas alternative variables may explain why in a certain period a rise in prices has been observed. In any event, even if potential antitrust risks were effectively found to materialize, the traditional competition law toolkit and the current regulatory obligations to which institutional financial investors have to comply with are suitable and sufficient to deal with the potential concerns that the common ownership theory eventually brings about and case-by-case evaluations are typical of, and should guide any competition law theory of harm.

Polish <i>ordynacje</i> and the English common law entail and strict settlement: Social, political, and religious comparative contexts

Abstract: Entailing landed property was a common feature of European property law in the late medieval and early modern periods, and beyond. Entails were far more common in some European states than others. This article undertakes comparative research into different forms of entailed property in Poland (where entails were uncommon) and England and Wales (where entails were common). It also undertakes comparative analysis with the later English common law strict settlement, which had the entail at its core. It investigates who created such settlements; why they were created; the different methods of creation; the attitude of the state/royal government; who benefitted under such settlements; inalienability of land; and perpetuity.

Australian Uniform Evidence Law

Abstract: Now in its second edition, Australian Uniform Evidence Law provides a clear, accessible introduction to the law of evidence. Following the structure of the Evidence Act 1995 (Cth), the text introduces students to basic principles, then covers more complex elements of evidence law. Cases and excerpts from legislation have been selected to guide students through the application of the Act. This edition has been updated to include significant recent case examples and decisions. Each chapter includes a summary of key points, definitions and practice questions to encourage students to apply their knowledge to realistic scenarios. The final chapter comprises longer-form, complex problems designed to test students' understanding of the concepts and rules covered in the Act as a whole. Guided solutions to each question are provided so students can check their understanding. Providing clear explanations and examples, Australian Uniform Evidence Law is an essential resource for all students of evidence law.

Carácter procedimental del non bis in idem en la Unión Europea

Abstract: After several years under harsh criticism, the Court of Justice of the European Union has finally accepted to review its case law on the idem condition in the ne bis in idem doctrine. In bpost and Nordzucker & others, the ECJ has adjudicated that the idem condition must be understood as idem factum in every field under EU Law, including competition law. The grounds for this decision remain unclear. This paper suggests that a clear distinction between a procedural and a substantive concept of non bis in idem and, specially, the acknowledgment of the ECJ’s endorsement of the latter, may help to understand its most recent case law.

A Brief Introduction to the Common Law

Abstract: Law can be divided into sets of binary categories. One such set consists of public law, which concerns such matters as the powers of governmental institutions, on the one hand, and private law, which concerns such matters as the relationships between private persons, on the other. Another set consists of civil law and common law. In civil law systems, which prevail in Europe, Latin America, and most of Asia, public law is largely found in statutes, while private law is largely found in civil codes. In common law systems, which prevail in England and former English colonies, in particular the United States, private law is largely made by courts, in the form of rules adopted in judicial decisions. American private law is largely made by courts because complex societies need a great deal of private law to facilitate private planning, shape private conduct, and facilitate the settlement of private disputes, and the capacity and ability of American legislatures to make private law is limited. As a result, American courts have two functions: resolving disputes and making law.

IMPACT OF THE KOMAPE JUDGMENT ON THE SOUTH AFRICAN COMMON LAW OF DELICT: AN ANALYTICAL REVIEW Komape v Minister of Basic Education [2020] 1 All SA 651 (SCA); 2020 (2) SA 347 (SCA)

Abstract: In a rare case where the State is mulcted with delictual damages for failure to discharge their constitutional obligations to provide infrastructure in public schools, such as adequate sanitation facilities, the Supreme Court of Appeal awarded damages for emotional shock to the parents and siblings of a Grade-R learner who had drown in a pit-toilet. At the same time, the Court refused to develop the Constitution, 1996, to award separate damages for pure grief and bereavement not accompanied by serious psychological lesions, as well as constitutional damages. The judgment has been widely welcomed by children rights activities and is regarded as heralding a new era in holding the State (education officials) accountable for failure to fulfill their constitutional obligations towards learners, especially regarding the eradication of pit latrines in public schools. This note gives an analytical review of the judgment and is impact on the (development of) the common law delict, in particular, in the area of emotional shock and psychological injury. In the process, the case note specifically takes interest in the rationality for the SCA's rejection of the Appellants' argument for the development of the common law to award damages for a pure grief and bereavement (in addition to damages for emotional shock and psychological lesions) and constitutional damages. In the end, the case note concurs with the Court that it was unnecessary in the circumstances of the case to develop the common law. In fact, it is asserted in this note that the common law delict of emotional shock, in its current form, adequately compensate victims. Therefore, the SCA was right to reject the argument to develop the common law, as well as the awarding of constitutional damages.

Stare decisis and information abundance in a common law jurisdiction

Abstract: In a common law jurisdiction, according to the principle of stare decisis judges are bound to interpret a constitutional or common law principle by applying authoritative cases already decided. Parties in disputes pending before the courts must find and assess the prior cases on which they can expect that judges will rely. Not very long ago, research for such precedent involved reviewing known cases and linking them to other cases using topical digests and citators. Success with this approach required a patient, persistent, thorough, and open-minded methodology. Modern information accessibility gives previously unimaginable quick access to cases, including with tools that promise to predict judicial tendencies. But this technological accessibility can have negative side effects, including a diminished research aptitude and a stilted capacity to synthesize information. It can also lead to an inadequate account of the human factors that often cause judges to depart from predictions based on logical inference from prior cases. This article considers the extent to which the identification of precedent is essential in legal analysis, yet is of limited value in predictability as a result of judges’ unavoidably human perspectives. With examples from landmark cases, the article illustrates that judges sometimes make decisions based on considerations that will not be revealed in a mechanistic application of precedent. The article considers how evolving legal research tools and methods give access to precedent that in some respects makes the process more scientific, but in other respects can obscure the realities of how cases are decided. The article also gives examples of this paradox as demonstrated by today’s students who are learning how to do research, drawn from years of the authors’ teaching experience.

Common Law and Civil Law Perspectives on Tort Law

Abstract: The book provides scholars, lawyers, and law students with a comparative overview of the law of civil liability for injuries arising outside of contract in five major legal systems in the common law and civil law traditions: England, the United States, France, Germany, and Italy. The book analyzes a number of foundational issues that lie at the core of tort law in all the jurisdictions surveyed, and takes them as points of comparison for appreciating commonalities and differences between the common law and the civil law traditions, as well as within each of these traditions. The analysis covers the structure and context of tort law architectures, the role of negligence and the continuum between fault and strict liability, rules on recovery for personal injuries, non-economic losses and for pure economic losses, tests and approaches to causation, medical, and products liability regimes. As such, the book offers an updated and enriched framework for understanding the rules, theories, styles of reasoning, and cultures of tort law across the Atlantic.

On the issue of judicial law-making in civil proceedings

Abstract: The article studies the institution of judicial law-making and its connection with the institution of legislative gaps in the historical and legal context of the development of civil justice. Along with this, the grounds for the emergence of legislative gaps, their types and ways to overcome them during the law enforcement practice of general courts are determined. The authors conduct a comparative analysis of the features of continental and common law in the field of both legislative gaps and their overcoming through judicial lawmaking. At the same time, attention is drawn to the fact that the courts do not have the right to deny a person justice on the grounds of the absence, incompleteness, vagueness or inconsistency of the rules of law, which is a key provision directed towards judicial lawmaking. In this part, the authors pay attention to the judicial law-making of the Grand Chamber of the Supreme Court and the imperativeness of its legal positions, which develop law in our state. At the same time, the paper notes that European countries, including Ukraine, are gradually approaching convergence justice, where the rules of law are widely applied, but along with this, the courts are not deprived of the right to judicial lawmaking. In particular, in countries such as Germany, the courts are even obliged to legislate when necessary. Therefore, judicial law-making is not an unlimited concept. It can always take place only where there are legislative gaps on the one hand, and on the other, where there is a dispute about the law, since it is precisely when such a dispute is settled by the rules of law that all the shortcomings of the legislation appear, such as vagueness, inconsistency or incompleteness, otherwise and the lack of rules by which the court could resolve disputed relations.

International case law

Abstract: Chapter continues the journey through the tax jurisprudence on the concept of BO, taking a deep dive into selected case law. It supplements the previous chapter by trying to determine what role in the quest for the meaning of BO is played by law-in-action through judicial decisions in landmark cases when courts interpret and apply the concept of BO to resolve disputes between the tax authorities and taxpayers. The analysis of the entire selected case law in chapter five embraces a wide time horizon of 50 years and wide geography, covering common law countries (the United States, Canada and the United Kingdom) as well as civil law states (France, the Netherlands and Switzerland). The analysis of tax jurisprudence is carried out chronologically in order to follow the evolution of the understanding of the concept of BO over time in international case law. Wherever possible and appropriate, in addition to the analysis of each judgment in a specific case, the impact of the judgment on subsequent tax jurisprudence and legislation is depicted. The primary focus of this chapter (i.e., manifesting itself via a in-depth and comprehensive analysis of selected judgments) is on the following tax jurisprudence: 1) The judgment of the United States Tax Court (USTC) of 5 August 1971 in the Aiken Industries case; 2) The judgment of the Dutch Supreme Court (Hoge Raad der Nederlanden) of 6 April 1994 in the Royal Dutch Shell case; 3) The judgment of the Court of Appeal in London of 2 March 2006 in Indofood International Finance Ltd. v. JP Morgan Chase Bank NA case; 4) The judgment of the Council of State in France (Conseil d’État) of 29 December 2006 in Société Bank of Scotland case; 5) The judgment of the Federal Court of Appeal (FCA) in Canada FCA of 26 February 2009 in Canada v. Prévost Car Inc. case; 6) The judgment of the Federal Supreme Court of Switzerland (Tribunal fédéral) of 5 May 2015 in the Federal Tax Administration v Danish A/S case (commonly referred to as the Swiss Swap case). The deep dive into selected seminal judgments on the concept of BO internationally confirms the conclusions from the previous chapter that mapped general themes in tax jurisprudence concerning that concept, i.e., the judicial approaches to the concept of BO vary a lot, revealing the extreme malleability of the concept of BO. At one end of the spectrum, we have the tax jurisprudence of the US, the Dutch and the Canadian courts, which relatively rigorously apply the canons of interpretation relevant to the concept of BO and quite faithfully follow the OECD's guidance with the aim of decoding the international fiscal meaning of that concept. This tax jurisprudence exemplifies the effective judicial transplants of the concept of BO from the OECD's materials to the ground of tax treaties from the perspective of source countries (SCs). At the other end, we spot the British, French and Swiss tax jurisprudence, which appear to treat the canons of interpretation relevant to the concept of BO loosely and to use the OECD materials as a pretext to create domestic-biased meanings of the international concept of BO. They represent hybrid judicial transplants of the concept of BO. In principle, this case law seems to lend a lot of weight to facts and circumstances that imply the abuse of tax treaties. To some extent, this importance was given by the US courts, but whenever that appears to be the case, they apply the antiabusive judicial doctrines (e.g. step transaction doctrine) rather than the concept of BO. The UK and the French courts, in turn, in such cases simply dress up the concept of BO into a kind of GAAR or a domestic antiabusive judicial doctrine. A similar approach can be detected in the tax jurisprudence on the concept of BO in Indonesia, Spain, Denmark and Sweden.

Perspectives on property

Abstract: Australian Property Law: Principles to Practice is an engaging introduction to property law in Australia. Covering substantive law and procedural matters, this textbook presents the law of personal and real property in a contemporary light. Australian Property Law details how property law practice is transformed by technology and provides insights into contemporary challenges and risks. Taking a thematic approach, the text covers possession of goods and land, land tenure, estates and future interests, property registration systems, Indigenous land rights and native title, social housing, Crown land and ethics. Complex concepts are contextualised by linking case law and legislation to practical applications. Each chapter is supported by digital tools including case and legislation boxes with links to the full source online, links to useful online resources, multiple-choice questions, review questions and longer narrative problems.Australian Property Law provides an essential introduction to the principles and practice of property law in an ever-changing technological environment.

India and Australia: A Neglected Legal Relationship

Abstract: Despite both being common law countries with some shared legal heritage, the legal relationship between India and Australia has not been adequately explored. Australia's legal system has strong links to that of England's Privy Council, and the Indian legal system also bears links to some English common law doctrines. There is no dearth of concept and legal theory that judges and lawyers in Australia and India can collaborate on. This article begins with the author's own experience as a judicial officer in the Court of Appeal in Australia where he invoked judicial precedents from other common law countries, including India, to rationalise his judicial reasoning. It analyses and compares the development of legal traditions both in India and Australia, tracing it through the development of the common law, innovations in legal reforms, and the growth of jurisprudence through judicial decision-making. Finally, the article lays down a comprehensive nine-step plan of action to cultivate a stronger and lasting legal relationship between the two countries.

Implications of Circulating Text: Crafting a French Common Law

Abstract: The eighth and final chapter examines the larger effects of textualization and vernacularization. The combination of the new technology of writing with the social choice of the vernacular permitted ideas about custom to circulate beyond their traditional local community ambit. Previously rooted laws and customs grew legs, and customary legal ideas could be transmitted though the circulation of texts and shared outside their local setting. In fact, this is when we start seeing the term ‘common law’ appear in French texts, a term scholars associate in this period with either royal law in England or with Roman and canon law as law that was common to Europe. This French ‘common law’ has been hotly debated. This chapter contributes to this debate by using the coutumiers to show how a French ‘common law,’ in the sense of a pool of common customary legal knowledge, was developing in France. This, in turn, implies more similarity between the legal cultures of France and England in this period than previously thought.

Multimodal Transport in German Case Law

Abstract: Multimodal transport is a common occurrence. Each loss of or damage to goods triggers the question which transport law regime is to be applied. The article describes the approach taken by courts based on the reformed German statutory rules on multimodal transport. The beginning and the end of the sea carriage with its relatively low limits of liability have been discussed in a number of cases and allow an extrapolation of the principles found therein to all modes of transport.

Permiso de lactancia. Derecho del padre trabajador sin estar condicionado por la no actividad laboral de la madre.

Abstract: La sentencia que es objeto de comentario aborda la problemática del derecho del trabajador que es padre, a disfrutar del permiso de lactancia reconocido en la Ley del Estatuto de los trabajadores cuando la madre no presta una actividad laboral. Tras un amplio análisis de la normativa anterior a la actualmente vigente, y a la jurisprudencia comunitaria y española, la Sala concluye que debe reconocerse el derecho al demandante, al amparo de una interpretación de la normativa vigente que debe tener en consideración todos los criterios de interpretación regulados en el Código Civil, y prestando especial atención al fortalecimiento del principio de no discriminación por circunstancias personales o familiares. The judgment which is the subject of commentary addresses the problem of the right of a worker who is a father to enjoy the breastfeeding leave recognised in the Workers' Statute Law when the mother does not work. After an extensive analysis of the legislation prior to that currently in force, and the european and spanish case law, the Chamber concludes that the plaintiff's right must be recognised, based on an interpretation of the legislation in force that must take into consideration all the interpretation criteria regulated in the Civil Code, and paying special attention to strengthening the principle of non-discrimination on the grounds of personal or family circumstances.

A Study on the Scope of the Claimant and the Person obligated to pay the Freight under the Voyage Charter -Focusing on Britain Common Law-

Abstract: 국제해운시장에서 많이 이용되고 있는 항해용선계약에서 운임청구권자와 지급의무자가 될 수 있는 범위에 대해서 우리나라 상법에서는 운임청구권자는 운송인, 운임지급의무자에 대해서는 수하인만 언급하고 있을 뿐 구체적인 범위에 대한 규정은 없다. 반면에 영국보통법에서는 항해용선계약상 운임을 청구할 수 있는 자로는 선박소유자, 선장 선박이 항해 중에 매각된 경우에는 선박매수인, 선박에 저당이 설정된 경우에는 저당권자에게도 운임청구권을 인정하고 있다. 또한 항해용선된 선박이 재용선되고 재운송인이 선하증권을 발행한 경우에는 재운송인에게도 운임청구권을 인정하고 있다. 그 밖에도 운임이 적재항에서 지급되는 경우에는 선적중개인에게도 선박소유자를 대신하여 운임 청구권을 인정하고 있고 선박이 항해도중에 보험자에게 위부되었다면 그 이후부터 항해종료 시까지 발생한 운임에 대해서는 보험자에게 운임청구권을 인정하고 있다. 그리고 항해용선계약서상 운임지급의무자로서 항해용선계약서에 명확한 반대의 표시한 없다면 용선자가 1차적으로 합의된 운임을 지급할 의무가 있으며 수하인이 운송물의 소유자라면 항해용선계약의 당사자로 추정하여 운임을 지급할 의무가 있다. 그리고 항해용선계약상 선하증권이 발행되고 발행된 선하증권에 용선계약조건이 편입되어 유통된 경우에는 선하증권의 합법적인 소지자도 운임지급에 대한 책임이 있다고 보고 있다. 우리나라 상법과는 달리 영국보통법에서는 항해용선계약상 운임청구권자와 지급의무자에 대해서 구체적으로 그 범위를 규정하고 있고 그 내용 또한 실무에 적용하기에 매우 유용한 것으로 생각된다. 따라서 항해용선계약이 국제해운실무계에서 차지하는 비중이나 중요성을 감안한다면 현재 우리나라 상법에서도 항해용선계약상 운임지급청구권자나 지급의무자들의 범위를 영국보통법의 내용을 참고하여 법 규정을 신설ㆍ보완하여 그 기준을 정하여 두는 것이 필요하다고 본다.