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COMPARATIVE PRIVATE LAW LEGAL TRANSPLANTS

COMPARATIVE PRIVATE LAW LEGAL TRANSPLANTS. University of Oslo Prof. Giuditta Cordero Moss. Legal Transplants. Circulation of legal models Reception of structure and principles of a legal system ”Borrowing” of ad hoc legal rules. Reasons for legal transplants. Imposition

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COMPARATIVE PRIVATE LAW LEGAL TRANSPLANTS

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  1. COMPARATIVE PRIVATE LAWLEGAL TRANSPLANTS University of Oslo Prof. Giuditta Cordero Moss

  2. Legal Transplants • Circulation of legal models • Reception of structure and principles of a legal system • ”Borrowing” of ad hoc legal rules

  3. Reasons for legal transplants • Imposition • E.g.: French law - colonies • Prestige • E.g.: German law - pandectists • Efficiency • E.g: English law – financial transactions • Chance • E.g.: Russian transition

  4. Legal transplants and legal families • Cross-family transplants • Possible: • Legal families are classification of legal models, not legal models themselves • Difficult: • Legal families present structures and principles that may not be compatible with rules generated under different structures

  5. Multiple models • Russian company law before JSC Act 1995: • Gov.Decree 601/90: JSC – US model • Enterprises Act 90: LLC – German model

  6. Transplant from common law into a civil law system Coexistence of models from two different legal families Classification describes to reality, not reality adapts to classification Main consequences : richness of system Multiple models – criticism

  7. Incompatible models • Decree 2296/93: • Transplant of trust into Russian system

  8. Trust – common law: Dual property: formal ownership, beneficial interest Injunction to use property in best interests of beneficiary Tracing with third parties Protection against trustee’s creditors Ownership – civil law: Unitary property Fiduciary obligations Only contractual liability Incompatible models?

  9. Transplant of different models • Trust transplanted into various civil law systems: Louisiana, Quebec, Scotland, Japan, Liechtenstein,… • Why is it incompatible with the Russian system?

  10. Transplant of trust into Russia • Context: improvement of industry prior to privatisation. • Shares transferred to banks against loan, banks manage companies, on maturity loan repaid or bank remains owner of company • Art. 1: ”The institution of trust is transplanted into the civil law of the Russian Federation” • Art. 13:Trustee responds of proper performance with all its assets

  11. Common law trust: Transfer of formal ownership, creation of beneficial interest Injunction Tracing Separation from trustee’s assets Decree 2296 trust: Transfer of total ownership Contractual liability of trustee in case of breach of fiduciary obligations Comparison of models

  12. Incompatible models - conclusion • Trust may be transplanted from common law to civil law • Transplant of trust by Decree 2996 not successful • Decree 2996 failed to see function, legal effects and remedies in the original system and differences in the own system • Decree 2996 transplanted terminology, but not legal effects

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