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Abstract

The concept “rule of law” is used worldwide. However, the meaning of the concept varies, depending on several factors such as geography and history. This article provides a brief overview of how the concept is understood in the Swedish and Chinese legal contexts, by defining its different characteristics. The research confirms that the concept, which originates from the West, is used and perceived quite differently in the two countries. In fact, the use of different terminology, law-state thinking and socialist rule of law with Chinese characteristics, confirm the differences in understanding.

Open Access
In: European Journal of Comparative Law and Governance

Abstract

Consumer protection directly influences the design of choice of law rules in the EU. Article 6 Rome I Regulation stipulates that the law of the consumer’s habitual place of residence applies, unless another law has been chosen. This choice may not deprive the consumer of certain rules of her “home law”, however. This likely requires a comparison of the involved laws, putting the foreseeability of the parties’ legal rights in jeopardy. Such comparison also raises issues for the public, as it decreases administrability (measured by the amount of work necessary to apply a conflict rule) and hence increases costs for the courts. Through comparative analysis between Article 6 Rome I and the latter’s different interpretations, this article investigates how consumer protection affects the administrability and foreseeability of choice of law rules. It is shown how simple changes to Article 6 Rome I could increase administrability and foreseeability for all involved stakeholders.

Open Access
In: European Journal of Comparative Law and Governance

Abstract

The international credit crisis of 2008–2013 changed the legal landscape of mortgage enforcement proceedings in Europe dramatically. The growing influence of the international right to housing, the increasing attention towards homeowner protection, the renewed policies towards mortgage financing and the changes in national legislation, make the study of these proceedings relevant and interesting. Moreover, the phase between default of the mortgage debtor and the actual start of these proceedings is becoming more and more relevant because of these developments. Nonetheless, this phase is quite underresearched, especially from a comparative legal research point of view. Our comparative study therefore takes a different approach than classical comparative studies on mortgage enforcement procedures. With this project, we investigate the approaches of mortgage lenders after the mortgage debtor is in default with his mortgage obligations. These approaches can be based on legislation, self-regulation or agreements with the mortgagor. The aim of this project is to discover how these regulations function in practice. This paper provides an introduction to this emerging legal comparative research project on, what we call, default resolution approaches in Europe. We explain the main interests involved in default resolution approaches and the dimensions that should be taken into account in our study. We then sketch our comparative framework for further research.

Open Access
In: European Journal of Comparative Law and Governance
Author:

Abstract

Jurisdictions around the world are adjusting their insolvency laws with the aim to offer debtors in financial difficulties instruments that enable them to bring the company to a healthy state as soon as the problems arise. The rationale is that viable companies should have access to procedures that permit them to continue business, in whole or in part, by changing their capital structure as well as carrying out operational changes. Directors’ duties to creditors form a regular part of the laws concerning insolvency and therefore, a change in the insolvency laws will, arguably, have consequences for directors’ duties. In this paper, the impact of new preventive restructuring tools in the Netherlands and the UK on directors’ duties is discussed.

Open Access
In: European Journal of Comparative Law and Governance

Abstract

This paper argues that developing more reliable methodological foundations for Comparative Law requires us to acknowledge the virtues and limitations of well-designed simplification in successfully accounting for the complexity of legal reality. If the researcher is aware of its limitations, Law & Economics is well suited to providing analytical frameworks that increase our ability to compare real-life legal institutions by reducing the complexity of the law in action. Relying on some underexplored elements of New Institutional Economics and recent developments in Comparative Law and in Law & Economics, it presents a pathway to overcome the main methodological pitfall of a joint approach. For this purpose, it analyses the problems of the functional method, traces how Law & Economics was brought into Comparative Law, discusses the main methodological advantages and pitfalls of combining both disciplines and proposes concrete forms to make use of such advantages, while avoiding the pitfalls.

Open Access
In: Global Journal of Comparative Law
Author:

Abstract

The article examines the impacts of populist government in Hungary on constitutional law since 2010. The criterion of the analysis is whether the comprehensive and radical changes that took place during this time have been characterized by the distinctive traits, ambitions and values that the scholarship attributes to populism and ‘populist constitutionalism’, above all anti-elitism, anti-institutionalism, anti-pluralism, the emphasis on popular sovereignty and direct democracy, and an instrumental conception of law. For this purpose, it examines the major changes in the constitutional rules and practice of sovereignty issues, the system of separation of powers, and fundamental rights. The article consists of four parts. In the first chapter, sovereignty issues are discussed including the changing approach of constituent power, constitutional identity, and the interpretation of sovereignty through an analysis of the 2011 Fundamental Law and its eight amendments. The study then reviews the changes in the system of separation of powers, that is, the transformation of the legal status and operational practices of the most important public law institutions. The next chapter provides a qualitative analysis of the situation of fundamental rights, in particular the trends in the renewed regulation of constitutional liberties and political freedoms. In addition, this part gives an assessment of the current state of institutional protection of constitutional rights. Finally, the last chapter seeks to answer the question of how the cumulative effects of these changes can be assessed; whether Hungary follows a new, specific path of constitutional development, or the constitutional changes can be interpreted within the framework of the constitutional democracy formed after the 1989/90 regime change.

Open Access
In: Review of Central and East European Law
Author:

Abstract

Scholarly works on judicial populism tend to concentrate on the landmark judgments of constitutional courts and apex courts. Nonetheless, the examination of the activities of ordinary courts is of great importance as they shape the lives of citizens and can strengthen or curb populist politics. In this paper I analyze a phenomenon emerging in the adjudication of Hungarian ordinary courts which can be labelled ‘everyday judicial populism’. Based on case studies and empirical scrutiny I argue that the political populism of the Hungarian government has both a direct and an indirect, but clearly detectable, impact on judicial practice. As regards the latter, the government can manipulate (through its media) public opinion in certain court cases, and judges take this opinion - as the ‘vox populi’ - into consideration in their decision-making. At the end of the paper I examine the institutional conditions that have facilitated the emergence of judicial populism.

Open Access
In: Review of Central and East European Law
Author:

Abstract

Hungarian migration regulation has undergone a radical transformation since 2015, resulting in a system that essentially deprives asylum seekers of any international protection. This was a strategic move by the government to portray itself as the defender of Hungary and even Europe of the menace of uncontrolled migration. This article critically analyzes this transformation by first giving a comprehensive account of the major legislative changes and showing how they were framed to boost the populist political propaganda of the government. Then it argues that even though such populist legalism is in clear contravention of Hungary’s international legal obligations and thus constitute bad faith action, the European Union is still powerless to effectively oppose these measures since its own asylum policies are aimed at maintaining “Fortress Europe”, i.e. restricting irregular migration as much as possible through legal and informal measures. In conclusion, the only real antidote to populist legalism would be acting in good faith.

Open Access
In: Review of Central and East European Law
Author:

Abstract

The characteristics of Hungarian populism and its effects on labor and social policy are rather different compared to those of western Member States of the EU. These differences are due to the different experiences related to inter- and intra-EU migration and to the difference in how the EU’s austerity measures were imposed during the economic crisis. The two distinctive elements are the workfare regime which replaces the welfare state, and anti-pluralism. In the workfare model, ‘hard-working people’ are pictured as an idealized mass of employees who are disciplined and striving for betterment every day; and whose jobs and wellbeing are jeopardized by illegal migrants and the idle poor. However, labor law does not strengthen the rights of ‘hard-working people’ or support them in asserting their rights against their employers. While the Roma have been described as the undeserving poor and mainstreamed in everyday politics and practice, guarantees and protective measures have been severely curtailed in social policy, amplifying the insecurity and material deprivation of those who lose their jobs. Regarding collective labor law, the lack of an autonomous social dialogue supports anti-pluralist trends, a characteristic of populist governance. The fundamental elements of democratic control, such as participation or trade union rights have been largely eliminated to cement the executive power of the coalition.

Open Access
In: Review of Central and East European Law

Abstract

Populism is a nebulous concept that has almost as many definitions as scholars engaging with the concept that has a paradoxical relationship with law. On the one hand, populist politicians generally oppose the liberal ideal of separating politics and law, i.e. accepting that legal rules should limit political power, claiming that it would impede the expression of the popular will, yet they use legal regulation as their most important instrument to implement their policies. The chameleonic nature of populism and its instrumentalist approach to law presents a special challenge for lawyers that try to assess its impact on the domestic legal system. Populist legislation, after all, is seemingly indistinguishable from legislation adopted under non-populist regimes as populist regimes always claim to strictly adhere to formal procedural requirements and often justify the dramatic overhaul of previous rules invoking foreign examples.

Hungary is a perfect litmus test for the examination of legal changes under populist leaders, because in 2010 the right-wing Fidesz-Kdnp party coalition won two-thirds majority in Parliament – a self-described “revolution in the voting booths” -, which gave it the power to completely overhaul the Hungarian legal system, even changing the constitution. In the past 10 years, virtually every significant branch of Hungarian law was recodified, adopting inter alia new criminal, civil, administrative and labor codes. The authors of this special issue attempted to analyze some of the most pertinent changes, in the field of constitutional law, adjudication, tax law, labor law, criminal regulation and asylum legislation.

Open Access
In: Review of Central and East European Law