Bücher veröffentlicht von Duncker & Humblot GmbH

»Limits of Data Transfers from the EU to Third Countries - Based on the Example of the US«: The book is aimed at finding a solution to data transfers between the EU and USA, for which there is no longer a framework agreement since the ECJ's Schrems II decision. The author addresses the European level of data protection, in particular the GDPR, and the resulting requirements for third countries. Based on this, the author evaluates Californian data protection law, selected legal acts at the federal level, and the national security law in the USA.

»Coincidence - Legal, Philosophical and Theological Aspects«: What is randomness resp. chance or coincidence? Does randomness resp. chance or coincidence exist or is everything determined? What relevance does it have for the assessment of human action? The volume offers a diverse spectrum of insights and approaches. The reader encounters considerations from various disciplines: physics, probability theory, criminal law, public law, sociology of law, philosophy of law, moral philosophy, epistemology, philosophy of language, theology, and philosophy of religion.

»Derivative Works in the Digital Age. An Examination of Internet-Memes«: The creation of a new work on the basis of a previously created work is a popular stylistic device of the digital remix culture. On the basis of Internet-memes, Alexandra Wachtel researches where the boundaries of an independent expressive creation lie in the light of artistic freedom. The focus is on the special features of digital referential works and the concept of creation under copyright law.

»Narratives on Just War in International Law«: A large part of contemporary legal scholarship maintains the opinion that >bellum iustum< doctrine was never part of international law. However, the subject remains controversial. The work in hand attempts to cast new light on the longstanding >bellum iustum - bellum legale< controversy in correspondence with the more recent narrative turn in international law. It is shown that any categorical denial of the just war doctrine in international law is flawed from the outset since law is value related.

»The Labour Market Opinion - A Central Regulatory Tool in German Labour Migration Law«: The Labour Market Opinion has been a central regulatory tool to determine whether to grant a residence/work permit over the last 50 years. Only if a German, EU citizen, or a foreigner granted full labour market access is unavailable for a position offered to an applicant, the permit can be granted. In light of its scope of application decreasing in recent years, this book critically examines the extent to which the Labour Market Opinion still has a place in modern German labour migration law.

»Therapy Freedom and the Right of Self-Determination. Doctor-Patient Relationships through the Ages«: This study examines the dynamics of the doctor-patient relationship. The encounter between doctor and patient as two independent individuals gives rise to conflicts that are worth observing in greater detail. In doing so, parallels are drawn from the historical development of the doctor-patient relationship to the imponderables of a digitalised healthcare system.

This study examines a hitherto little researched variety of anti-egalitarian, anti-Western and authoritarian state theory. Heinrich W. Herrfahrdt's »Arbitrational Leadership« was intended to transform the liberal constitutional state into an authoritarian corporative state by means of minor interventions in the state's institutional structure. However, it not only provides alarmingly topical illustrative and reflective material for contemporary constitutional law doctrine because of its detailed state restructuring instructions, but also because the polyglot Herrfahrdt already made extensive international comparisons and placed a special focus on Japan and China.

»The Private International Law of European Regulations and Third State Treaties. An Analysis from a German Perspective and to strengthen the European Private International Law«: The harmonization of European private international law is disrupted by overriding third state treaties with divergent conflict-of-law rules. To remedy the incompatibilities the treaties can be particularly revised, terminated or new agreements can be concluded. The obligations of the member states, the competences of the EU and the necessary negotiations with the third states lead to difficult constellations from a legal and diplomatic point of view.

»Private Decisions on State Subsidies. The Involvement of Private Intermediaries in the Administration of Grants and Subsidies with a Special Focus on the German Scholarship System«: Konrad Körner examines cases of German state aid and budgetary law in which a grant decision is not decided upon and administrated by state authorities themselves, but via private intermediary. Thereby, he specifies on the conditions between the grant authorities, the intermediary or facilitator and the grantee. Special emphasis is being placed on the cases in which the decisions have to be reached with a greater independence from the state, such as scholarship decisions of political foundations, research fundings and the support of arts.

»Digital Instructions. Employer Decisions Based on Algorithmic Calculations«: >Automated exercise of the right of instructionissuing of instructions by robots< or >AI-generated instructions< - digital instructions are gaining attention in the legal literature.In this context, it is important to answer which requirements the applicable law places on digital instructions due to the novel decision-making technology and due to their character as instructions in the conventional sense. Are some instructions even under the reservation of a human final decision?

»The Problem of Late Term Abortion. Legal, Medical, and Criminological Aspects and Legal Approaches in a Comparative Legal Perspective«: The work deals with the problem of late-term abortion and its handling under criminal law in Germany from an interdisciplinary perspective, in which criminological, medical, constitutional and criminal law dogmatic aspects are linked. The author presents her empirical analysis on feticide and late termination of pregnancy and makes a proposal for a new legal regulation.

»How to apply the Rules of Probation in Case the Convict is incapable to pay the Fine and faces a substitute Imprisonment (Ersatzfreiheitsstrafe)«: The convict, who faces a substitute imprisonment, is in a similar situation as a person, who received an ordinary custodial sentence. Therefor the question whether or not the rules of probation should apply to the substitute imprisonment in § 43 StGB is closely linked with the legal nature of this penalty. By the means of the wording in § 43 StGB, the system of the rules, the history and the purpose of § 43 StGB the author concludes, that the substitute imprisonment is an ordinary custodial sentence and therefore the rules of probation should apply to this penalty as well.

»Protection of Third-party Creditors in the Context of Corporate Financing Through Hybrid Financing Instruments. On the Voluntary and Statutory Creditor-protecting Function of Mezzanine Capital Provided by Third Parties«: Corporate financing by mezzanine capital gives rise to various questions in connection with the protection of the company's third-party creditors. The study examines to what extent providers of mezzanine capital are subject to those statutory provisions that impose restrictions on conventional equity investors in the interest of the company's creditors. Furthermore, it examines the relevance of such clauses by which the parties explicitly assign a creditor-protecting function to mezzanine capital.

Due to the rise of organized crime and the rapid development of surveillance technologies, such technologies are increasingly used for the purpose of criminal investigation. However, the proliferation of such highly intrusive measures can jeopardize the individual right to privacy and the constitutionally protected secrecy of private telecommunication. It is therefore necessary to devise a legal framework that balances the need for efficient law enforcement with individuals' privacy rights. In this study, the author discusses the laws on covert surveillance as an investigative measure in the criminal process of the United States, Germany, and the P.R. China from theoretical and empirical perspectives. The author then provides a horizontal comparison of the three legal systems, with the aim of identifying solutions that achieve a proper balance between the protection of the right to privacy and the effective combat of crime.

»The main hearing as a forum of truth. An Analysis with a View on the Criminal Procedure Reforms of Argentina and Mexico«: The clock of the main hearing-centered criminal procedure has run down. Abbreviated criminal proceedings without a substantive oral and direct main hearing, whether plea bargaining, procedimiento abreviado or plea bargaining, rely on a »hunt for the confession« like the common law inquisition trial. Material truth falls by the wayside. As a touchstone, recent Latin American criminal procedure reforms are critically examined.

»Private Damage Arrangement as a Third Party Burden. Premiums, Contractual and Association Penalties: Compensable Damages or Inadmissible Legal Transactions at the Detriment of Third parties?«: The thesis examines the question of the extent to which premiums, contractual and association penalties constitute compensable damages or inadmissible legal transactions to the detriment of third parties. Based on the proposal developed for dealing with third party burdens, the private damage arrangements present themselves as disproportionate legal transactions to the detriment of third parties. As a result, they are relatively ineffective and therefore do not represent a compensable damage.

»International Commissions of Inquiry«: International commissions of inquiry are the subject of this treatise. Since the 1990s the United Nations have used such commissions increasingly to find facts and for legal assessment in situations in which violations of human rights and international humanitarian law are concerned. However, the concept of an international commission of inquiry is much older. Such commissions received an international legal framework for the first time at the 1899 peace conference at The Hague in the field of international dispute settlement. All types of international commissions of inquiry share a common feature: Their task is to find facts in an objective, independent and impartial manner. In the treatise, the applicable procedural law and procedural practice of such commissions are analyzed. The considerations are based on commissions which are formed by an agreement between states and commissions in the context of international organizations, namely the League of Nations and the United Nations.

»Suspension effect and suspension of execution. A Study of German and Turkish Law«: The subject of the study is the temporary legal protection in German and Turkish administrative law. The focus is on the automatic suspension effect in German law, its exclusion and restitution. This is followed by a description, analysis and evaluation of parallel phenomena in Turkish law. The aim is to contribute to effective interim legal protection.

»Legislatively Liquidated Damages. A Regulatory Instrument in German and European Private Law«: Legislatively liquidated damages can innovatively be understood as a regulatory instrument in private law with unique characteristics and effects. This is demonstrated by an analysis of the German and European provisions on late payment and air passenger compensation. Against the constitutional and EU legal background, the doctrinal divergences from conventional liability and damages law as well as the effects on procedural efficiency and behavioural steering are revealed.

»Constitutional Judges and their past Involvement in Legislative Processes. A study of Judicial Disqualification and Recusal in Germany and the United Kingdom«: Sections 18 and 19 of the Federal Constitutional Court Act serve to ensure the impartiality of the judges of the German Federal Constitutional Court (GFCC). The thesis examines, whether the provisions meet this objective also in light of past legislative activities of its judges. For this purpose, the relevant case law of the GFCC is compared to the legal practice in the United Kingdom, whose legal system was characterized by a direct interconnection between the highest courts and parliament.

»Cross-Border Conversions within the European Union with Special Consideration of Directive (EU) 2019/2121 and its Implications for Partnerships«: This dissertation is dedicated to review the newly harmonized legal framework for cross-border conversions within the European Union. At the same time, this harmonization progress is taken as an opportunity to examine the non-unified law of cross-border conversions of partnerships de lege lata and to point out the implications of the Mobility Directive for this form of transformation. Finally, the thesis documents the persisting obstacles to mobility in the internal market and proposes solutions, especially at the level of conflict of laws, to promote corporate mobility.

»Militarization of German Police - Constitutional Limits«: In an effort to fight terrorism, Germany has initiated the largest wave of police armament since the 1970s, acquiring weapons such as machine guns, explosive grenades, or armed vehicles. The equipment of some police officers now comes close to that of combat soldiers. This militarization of the police is, however, limited by the rules of German constitutional law.

The author examines the system of judicial legal protection against civil service personnel selection decisions with regard to its actual effectiveness in enforcing the fundamental right to equal access to public offices from Art. 33 para. 2 Basic law. The benchmark for the effectiveness test is the legal protection guarantee from Art. 19 para. 4 sentence 1 Basic law. Having the practical obstacles to effectiveness identified, the author concludes that the official selection process needs to be designed in a way that is friendly to judicial legal protection and derives certain minimum organizational requirements for the selection process.

»Applicability of Arbitration Agreements to Antitrust Damages Claims«: When arbitrating competition law disputes, party-appointed arbitrators rule on a legal right that protects the market and therefore serves the public interest and is relevant to society as a whole. The study examines from a comparative law perspective how the tension between private autonomy and the requirements of the rule of law for the arbitral enforcement of competition law can be resolved, taking German law, EU law and US law into account.

»Network Security Management. Consideration of the Legal Requirements for dealing with short-term Technical Problems in the Power Grid against the Backdrop of a changing Grid Network Structure«: The thesis examines the European, national as well as other legal requirements for the management of short-term grid-related problems in the power grid. It deals with the responsibilities, the available instruments as well as their effect and relation to each other including the changes of the legal framework required to ensure a secure supply of electricity in the future and to legally implement upcoming changes of the technical grid structure.

Was unterscheidet dem Grunde nach einen Mord von einem Totschlag? Sollten hierbei unrechts- und/oder schuldmindernde Gesichtspunkte relevant werden können, die wegen fehlender Voraussetzungen nicht als Rechtfertigungs-, Entschuldigungs- oder Schuldausschließungsgrund für den Täter streiten können? Ist in der Rechtspraxis jene Berücksichtigung möglicherweise bereits Usus?Diesen Kernfragen widmet sich die vorliegende Arbeit. Insgesamt liegt ihr Ausgang darin, dass Fragen im Bereich des Mordtatbestands unter Rückbesinnung auf sein Wesen zu beantworten sein sollen und Lösungsversuche nur hierin ihre rechtsdogmatisch überzeugende Legitimation finden können. Im Ergebnis liefert die Untersuchung einen Lösungsansatz, der eine einheitliche Behandlung der betrachteten tätergünstigen Umstände in dem Sinne ermöglicht, dass bei einem Zusammentreffen mit einem Mordmerkmal dessen Unrechts- und/oder Schuldgehalt zugunsten einer Totschlagsstrafbarkeit als kompensiert gelten kann.

»Sentencing for Serious Crime. A Comparative Study of Theory and Practice of Sentencing«: This study is devoted to addressing the issue of sentencing decisions in the practice after conducting an empirical and normative comparative study of sentencing practice. Additionally, this study also illustrates the sentencing practice of serious crimes and the impact of current criminal policies on sentencing practice. Finally, this study illustrates the implications of findings for the sentencing decisions and criminal policy in the sentencing practice.

»Legal Certainty of the Sanction norms of the German Law on Medicinal Products«: This thesis examines whether the penal provisions (including fines) of the German Law on Medicinal Products satisfy the principle of legal certainty set out in Article 103(2) of the German Constitution. For this purpose, it analyses the legal term »medicinal product« in the first and the reference-constructions of the sanction norms of the Law on Medicinal Products in the second chapter to then evaluate to what extent the conduct subject to punishment is recognizable and thus foreseeable for the norm addressee.

»Consumer Law Enforcement in Mass Tort Cases. A Contribution to the Limits of Individual Legal Protection and the Perspective of the Model Declaratory Action«: The diesel emissions scandal revealed considerable deficits in the enforcement of consumer rights in cases of mass damage and ultimately led to the introduction of the »Model Declaratory Action«, the first collective legal protection instrument in the individualistic ZPO. After more than three years of testing, the question shall now be answered - especially in light of the new EU directive on representative actions - whether the model has a future and to what extent changes are required.

»Limits to Majority Rule in German Corporate Bond Restructurings«: The German Bond Act (SchVG) has facilitated the restructuring of German corporate bonds since 2009. The key question that has remained unanswered so far is what limits the law places on bondholders with special interests who can use their voting power to control the distribution of the restructuring burden or cause the restructuring attempt to fail. The author discusses approaches under bond law, proposals borrowed from corporate law and the general limits of private autonomous action.