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7719 results in Intersentia

Page 223 of 386

  • Preface

  • Cyrille Fijnaut
  • Book:
    Criminology and the Criminal Justice System
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    13 September 2017, pp v-viii

  • Summary

    In the 1989 – 90 academic year, it was my pleasure to take over the course on General Criminology from the late Prof. Steven de Batselier, a course that had been taught for decades as part of the special programme in criminology at KU Leuven's Faculty of Law. It was my intention from the very start to write an introduction to general criminology for the many students taking the course – both criminology undergraduates and faculty of law graduates – that would facilitate both absorbing the course material and studying it independently. At the same time, I wished to take the opportunity aff orded by writing such an introduction not only to make the course suitable for the many law students but also to align it with the ideas that I had about how such an introduction should be structured.

    For me, that meant two things. On the one hand, it seemed desirable for various reasons to devote considerable attention to the long history of criminology, in the West in general and in Belgium and the Netherlands in particular. The main reason was and is, however, that without thorough knowledge of that history it is difficult to understand the contemporary developments in theory, research, and practice. On the other hand, I considered it necessary to write not merely a kind of “history of ideas” in criminology but also to show how closely that history has been associated – right up to the present day – with the evolution of criminal law and the administration of criminal justice, and more generally with the combatting of crime in all its forms and varieties.

    But actually writing such an introduction proved to be no simple matter. At that time, for instance, because of the absence of systematic and thorough research it was virtually impossible to write a historical introduction to criminology and criminal justice that would, at the very least, properly represent the history of criminology in Belgium and the Netherlands, and its influence on the organisation and operation of the criminal justice systems in those countries.

  • Chapter 3 - Cooperative Financial Structure

  • from Part I - Principles of European Cooperative Law and Commentaries
  • Gemma Fajardo-García, Antonio Fici, Hagen Henrÿ, David Hiez, Deolinda A. Meira, Hans-H. Muenker, Ian Snaith
  • Book:
    Principles of European Cooperative Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    13 September 2017, pp 73-96

  • Summary

    (1) As private legal persons that carry on an economic activity without profits as the ultimate purpose, cooperatives have a specific financial structure aimed at the success of their objectives, with respect to universally recognised cooperative values and principles.

    (2) As business organisations, cooperatives can use shares, reserves, loans and other financial instruments as sources of capital, providing they are compatible with their cooperative nature.

    COMMENTARY

    Cooperatives have a distinct financial structure, as shown below.

    The social object of the cooperative, closely linked to its mutualistic vocation, makes it compulsory that the cooperative‘s financial structure be aimed at promotion of the interests of cooperator members, i.e. at meeting their economic, social and cultural needs. Indeed, unlike commercial companies, cooperatives conduct an economic activity whose aim is not primarily profit but has a mutualistic purpose (see sec. 1.1). However, as outlined in chapter 1, the mutualistic purpose pursued by cooperatives does not mean that they conduct their activity exclusively with their members, since they may also engage in non-member cooperative transactions (see sec. 1.5) which will have consequences on their financial structure.

    The financial structure of cooperatives is thus based on a particular logic resulting not only from the specific characteristics of the cooperative objective but also from the necessary obedience to cooperative values and principles. Cooperatives develop their social object in an organised and professional manner, and, like business organisations, they need to use various management and financial instruments to enhance their efficiency in achieving their goals. To this end, according to the Principles of European Cooperative Law (PECOL), cooperatives can use shares, reserves, loans, and other financial instruments as sources of capital provided that these are compatible with their cooperative nature.

    (1) Cooperatives are established without minimum capital, unless the law or cooperative statutes provide otherwise.

    (2) Cooperative statutes may fix a minimum share capital and the minimum amount and nature of the contribution of each member, with respect to the principle of open membership as laid down in sections 1.3(6) and 2.2.

    (3) In any case, the share capital is variable, which means that variations in the amount of the capital, due notably to increased or reduced membership, do not require amendments of the cooperative statutes nor disclosures.

  • Chapter 12 - United Kingdom

  • from Part II - National Reports
    • By Ian Snaith, senior lecturer at Leicester University in 2009
  • Gemma Fajardo-García, Antonio Fici, Hagen Henrÿ, David Hiez, Deolinda A. Meira, Hans-H. Muenker, Ian Snaith
  • Book:
    Principles of European Cooperative Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    13 September 2017, pp 625-718

  • Summary

    DEFINITION AND OBJECTIVES OF COOPERATIVES

    INTRODUCTION

    In the UK, a body wishing to function as a cooperative is free to use any legal form it chooses. Th at includes registering under the Companies Act 2006 or the Limited Liability Partnerships Act 2000 or operating as a partnership under the Partnership Act 1890, subject to restrictions on the use of the word‘cooperative’.

    However, the Co-operative and Community Benefit Societies Act 2014 (CCBSA 2014) provides a legal structure specifically designed for cooperatives. Credit unions, a form of savings and loan cooperative, must register under the 2014 Act as adapted by the Credit Unions Act 1979 and are prohibited from otherwise registering under the CCBSA 2014. Similarly, an organisation using any other legal structure (including the European Cooperative Society (SCE) form) is prohibited from using the words‘credit union ’as part of its name (ss. 1 – 3 Credit Unions Act 1979). Like other financial services businesses, credit unions are also subject to regulation by the Financial Conduct Authority (FCA) and the Prudential Regulatory Authority (PRA) as authorised deposit takers under the Financial Services and Markets Act 2000. For that reason, this report makes no further reference to the law governing credit unions.

    The FCA is responsible for cooperative and community benefit society registration – a function similar to that performed by the Registrar of Companies for companies registered under the Companies Act 2006.

    As is generally the case in UK business organisation law, the emphasis of the CCBSA 2014 is on providing default rules and so maximising the freedom of those using the legal structure to develop and apply their own rules. Th is means that subject to compliance with the FCA‘s view of the nature of a bona fide cooperative society, the governance structure, rights and duties of members, elements of the capital structure and rules about the return to members are all left to be dealt with by the rules of each society. Th is reflects the system also applicable to companies and partnerships in the UK.

    DEFINITION OF A COOPERATIVE SOCIETY

    Section 2 of the CCBSA 2014 lays down the conditions to be satisfied for a society to be registered as a cooperative society.

  • Chapter 2 - Cooperative Governance

  • from Part I - Principles of European Cooperative Law and Commentaries
    • By Ian Snaith, senior lecturer at Leicester University in 2009
  • Gemma Fajardo-García, Antonio Fici, Hagen Henrÿ, David Hiez, Deolinda A. Meira, Hans-H. Muenker, Ian Snaith
  • Book:
    Principles of European Cooperative Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    13 September 2017, pp 47-72

  • Summary

    (1) Cooperatives are directed and controlled by or on behalf of their members, who have ultimate democratic control through their governance system.

    (2) Cooperative governance reflects their jointly-owned, democratically controlled and autonomous nature. It facilitates operation based on universally recognised cooperative values and principles, including cooperative social responsibility.

    (3) The governance organs of a cooperative are structured to pursue economic activities mainly in the interest of their cooperator members. In general interest cooperatives, they are structured to pursue such activities mainly in the general interest of the community.

    (4) Cooperative governance structures may vary according to:

  • (a) the size and type of cooperative enterprise;

  • (b) the sector in which it operates; and

  • (c) whether it is a general interest cooperative.

    • (5) Cooperative governance structures must always ensure cooperative autonomy and member control.

    COMMENTARY

    The chapter opens in Principles of European Cooperative Law (PECOL) 2.1(1) with a statement about the centrality of the role of members in cooperatives and the importance of ensuring that cooperatives are ultimately controlled by their members, even if functions and powers are divided among a number of organs such as boards and managers. PECOL 2.1(5) focuses specifically on the role of governance structures in upholding the autonomy of the cooperative and member control. Cooperative groups and subsidiaries are dealt with at PECOL 5.2.

    PECOL 2.1(1) also defines‘governance’ as being concerned with the direction and control of the jointly owned autonomous cooperative enterprise. The core concept of democratic control of cooperatives is emphasised in most of the national laws studied. These principles of governance are important in both cooperatives operating in the interests of their members and those pursuing the general interest. In the case of GICs, democratic governance is perhaps the main feature identifying the organisation as a cooperative.

    PECOL 2.1(2) then places cooperative governance in the context of the overall International Co-operative Alliance (ICA)/International Labour Organization (ILO) definition of a cooperative. It links the specifics of governance to the values embodied in the ICA definition. They are both operational (self-responsibility, democracy, equality, equity and solidarity) and ethical. The principle of cooperation among cooperatives is also included.

  • Chapter 2 - Origin of the Present-Day Criminal Justice System

  • Cyrille Fijnaut
  • Book:
    Criminology and the Criminal Justice System
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    13 September 2017, pp 9-26

  • Summary

    INTRODUCTION

    In the course of the eighteenth century, the criminal justice system – as the main form of combatting crime – became one of the objects of critical discussion regarding the organisation and operation of the nation state. Needless to say, that discussion assumed that the audience addressed would have the necessary prior knowledge of the European political situation regarding these points, or at least the situation in certain European countries. That assumption was probably justified at the time, but it certainly does not apply to readers today.

    To ensure a proper understanding of that discussion, this chapter therefore explains some of the main developments that occurred in Europe during the Middle Ages and the early modern period. In particular, an outline is given of how criminal proceedings at the time came to be on an inquisitorial basis and how – in line with that important procedural transformation – a criminal justice system was constructed of which the police force, the judiciary, and the prison system still form the institutional backbone today. Based on one of the best-known Dutch pamphlets from around the year 1600 on tackling the problems of crime – Dirk Volckertszoon Coornhert's Boeventucht [Discipline of Villains] – an explanation is given of the discussion associated with the emergence of the modern criminal justice system.

    Discussing this large-scale institutionalisation of inquisitorial criminal procedure also provides an opportunity to give a taste of the debate taking place in historical criminology and in research on the history of criminal law about important issues such as the establishment of today's prison system and the modernisation of the police.

    TRANSITION FROM ACCUSATORY TO INQUISITORIAL CRIMINAL PROCEEDINGS

    Entirely in line with Carolingian criminal law, the “new” medieval state and city criminal law was initially of a predominantly accusatory nature. In the thirteenth, fourteenth, and fift eenth centuries, however, it acquired throughout Europe – in some places under the influence of canon law – an increasingly inquisitorial character, at least as regards more serious forms of crime. For less serious off ences, accusatory methods for keeping the peace within the community remained current in many places, right up to the French Revolution.

  • Chapter 1 - Definition and Objectives of Cooperatives

  • from Part I - Principles of European Cooperative Law and Commentaries
  • Gemma Fajardo-García, Antonio Fici, Hagen Henrÿ, David Hiez, Deolinda A. Meira, Hans-H. Muenker, Ian Snaith
  • Book:
    Principles of European Cooperative Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    13 September 2017, pp 19-46

  • Summary

    (1) Cooperatives are legal persons governed by private law that carry on any economic activity without profit as the ultimate purpose and mainly in the interest of their members, as consumers, providers or workers of the cooperative enterprise.

    (2)‘Profit as the ultimate purpose’ means making profits mainly for the payment of interest, dividends or bonuses on money invested or deposited with, or lent to, the cooperative or any other person.

    (3) For the purpose in paragraph (1),‘cooperative enterprise’ may include an enterprise carried out by a subsidiary if this is necessary to satisfy the interests of the members and the members of the cooperative maintain the ultimate control of the subsidiary.

    (4) Cooperatives may also be established to carry on an economic activity mainly in the general interest of the community (‘general interest cooperatives’).

    (5) Cooperatives shall include in their registered name the word‘cooperative’,‘coop’, or similar. The words‘cooperative’,‘coop’, or similar, may not be included in the name of entities not formed and managed as cooperatives in accordance with cooperative law and universally recognised cooperative values and principles.

    COMMENTARY

    The first provision of the Principles of European Cooperative Law (PECOL) is a definition of the subject matter dealt with, namely cooperatives. Th is is consistent with a practice common in European cooperative law. A definition of cooperatives may be found in almost all the jurisdictions considered for and within the PECOL project: see art. 2511 of the Italian Civil Code (ICC); art. 2(1) of the Portuguese Cooperative Code (PCC); art. 1(1) of French Law no. 47-1775 (FrCA); para. 1(1) of the German Cooperative Act of 1889 (GCA); art. 1(1) of Spanish Law no. 27/1999 (LC).

    By contrast, European Regulation no. 1435/2003 (SCE R) does not contain a definition proper of the European Cooperative Society (SCE), although the SCE is immediately identified by certain characteristics, including member and capital variability and the objective pursued (art. 1 SCE R). A definition of a cooperative is also lacking in the Finnish Cooperative Act no. 421/2013 (FiCA).

  • Chapter 11 - Spain

  • from Part II - National Reports
    • By Gemma Fajardo, lecturer in Commercial Law at the University of Valencia
  • Gemma Fajardo-García, Antonio Fici, Hagen Henrÿ, David Hiez, Deolinda A. Meira, Hans-H. Muenker, Ian Snaith
  • Book:
    Principles of European Cooperative Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    13 September 2017, pp 517-624

  • Summary

    DEFINITION AND OBJECTIVES OF COOPERATIVES

    INTRODUCTION

    When examining Spanish cooperative law, irrespective of the topic under study, the first salient factor is the coexistence of different laws governing cooperatives. Spain is divided into a number of Autonomous Communities, each of which has assumed exclusive competence in cooperative matters within its own boundaries. As a result, 16 of these 17 autonomous regions have passed a Cooperatives Law.

    Th is multiplicity of laws coexists with a national Cooperatives Law, Law 27/1999 of 16 July 1999 (hereinafter LC), which applies to cooperatives that do not concentrate the greater part of their activity with their members in any particular Autonomous Community (LC art. 2). Moreover, the national law is applied in addition to that of the Autonomous Community in the event of any lack in the latter law (Spanish Constitution of 6 December 1978, art. 149.3).

    Moreover some types of cooperative are subject to special laws, as in the case of credit cooperatives, insurance cooperatives or transport cooperatives.

    The LC is also the reference of other laws regulating the taxation and accounting of cooperatives, such as the Fiscal System for Cooperatives Law no. 20 of 19 December 1990 (hereinafter LRFC), and the Order EHA/3360/2010, of 21 December 2010 adopting the Rules concerning the accountancy aspects of cooperative societies. However, the Communities of Navarra and the Basque Country have their own tax laws on cooperatives.

    In view of this situation, the examination of Spanish cooperative legislation in this book is based on national Law 27/1999, this being what we may call the common legal system, but also takes the peculiarities of the current regional laws into account.

    THE LEGAL CONCEPT OF COOPERATIVE

    The Spanish national Cooperatives Law of 1999 states that a cooperative is a society set up by people who associate to conduct business activities directed at meeting their economic and social needs and aspirations, on the basis of freedom to join and to leave voluntarily, and with a democratic structure and operating democratically in accordance with the principles drawn up by the International Co-operative Alliance, as provided for in this Law (LC art. 1).

Criminology and the Criminal Justice System
  • A Historical and Transatlantic Introduction
  • Cyrille Fijnaut
  • Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    13 September 2017
  • Criminology and the Criminal Justice System is a book for everyone interested in the historical development of the ideas on crime and punishment and their impact on the criminal justice system and the fight against crime more widely. It is as much a book for students, researchers and policy makers, as it is for lawyers, magistrates, police officers, public prosecutors and social workers. It is also a book for a wider readership curious about the origins of the current approach to issues of crime and criminal justice. Never before has an introduction to criminology systematically dealt with its history from the sixteenth century up to the present day, as well as the institutions of the criminal justice system: the police, the judiciary, the prison system, rehabilitation and youth protection. This is the first published study not only to discuss the development of criminology and the criminal justice systems of Western Europe (Belgium, the Netherlands, Germany, France, Great Britain and Italy) but also to delve into the interplay with the evolution of the system in the United States from the end of the eighteenth century up to this day. In addition, the extensive bibliography and numerous illustrations make this textbook ideal for further study and more in-depth research as well as a pleasure to read.

  • Chapter 1 - General Introduction

  • Cyrille Fijnaut
  • Book:
    Criminology and the Criminal Justice System
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    13 September 2017, pp 1-8

  • Summary

    BASIC PRINCIPLES OF THIS WORK

    Criminology today definitely cannot be seen as a coherent set of theories, methods, and research topics – quite the opposite. Like many other disciplines, it is nowadays highly diff erentiated and specialised from the theoretical, methodological, and thematic perspectives. Moreover, it goes without saying that its historical and contemporary complexity increases by leaps and bounds the more it is considered not only as an historically formed assemblage of ideas but also in the light of the development that the criminal justice institutions have undergone, partly because of it, in centuries gone by.

    This means that if one wishes to present a true picture of this manifold criminology – or “pluralistic” criminology, as it is sometimes termed – one cannot restrict oneself to writing the kind of introduction that is usually published nowadays. Rather, the present introduction is a deliberate attempt to write a genuinely diff erent kind of treatise. In my view, most of the introductions used nowadays in Western Europe and the United States have major shortcomings. Let me name but a few:

  • – they generally have a one-sided focus on the development and status of criminology in the country where they are produced, in the countries of the author's own language, or in the English language area;

  • – they usually view the history of criminology as merely a lead-in to discussion of its contemporary evolution;

  • – they divide up the history of criminology into relatively sterile portraits of a few individual forerunners or into a fairly insignificant series of quotations from their works;

  • – they devote either no attention or completely inadequate attention to important episodes in the history of criminology, such as its role in the totalitarian police states of the twentieth century;

  • – they treat criminology mainly as a loose collection of old and new ideas from Europe and America regarding crime and the response to crime;

  • – they all too easily disregard the social context within which new ideas about crime and its containment have emerged and have found more or less resonance in the outside world;

  • – they generally fail to use quotations, disagreements, and references to encourage independent perusal by the reader of important general works or specific studies; and

  • Introduction

    • By David Hiez, Professor of Civil Law at the University of Luxembourg
  • Gemma Fajardo-García, Antonio Fici, Hagen Henrÿ, David Hiez, Deolinda A. Meira, Hans-H. Muenker, Ian Snaith
  • Book:
    Principles of European Cooperative Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    13 September 2017, pp 1-16

  • Summary

    THE PECOL PROJECT AND ITS CONTEXT

    Publishing sets of European law principles has become almost commonplace in the past twenty years, with each new set reflecting a different and new area of European private or commercial law. Thus, it is no surprise that a group of European scholars, who generally focus on the law of cooperatives, decided to enter the fray. The Group (defined below) undertook, over a four-year period, the necessary research and made the necessary comparisons to compile just such a set of European principles for their distinct body of law (the‘PECOL Project’). The results of the PECOL Project have thus been published under the less-thanimaginative title‘The Principles of European Cooperative Law’ or ‘the PECOL’ for short. Unlike some other sets of European principles published in recent years, the PECOL can rely on previous principles: the cooperative principles established by cooperators themselves. Th is raises new questions concerning the place and function of the PECOL. But another particularity derives from research on cooperative law, and it has two typical aspects. First, there has been, to date, only scant adequate research in the field of cooperative law, as discussed below. Secondly, to the extent that such research does exist, much of it has been authored by members of cooperatives themselves, or by legal practitioners working with cooperatives, rather than by academic scholars studying this type of entity. These different features give an original flavour to the PECOL compared to other sets of principles recently established. Th is will be explained by the presentation of the project (section 2) and its goals (section 3).

    THE PECOL PROJECT

    THE GROUP

    The PECOL Project brought together a small group of European scholars who had all chosen to focus on the law of cooperatives (the‘Group’) from those EU Member States with the most prominent cooperative traditions (i.e. France, Germany, Italy, Spain, Portugal, and the UK), as well as one Member State that had developed its own unique approach to cooperatives (Finland).

  • Foreword

  • Gemma Fajardo-García, Antonio Fici, Hagen Henrÿ, David Hiez, Deolinda A. Meira, Hans-H. Muenker, Ian Snaith
  • Book:
    Principles of European Cooperative Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    13 September 2017, pp v-vi

  • Summary

    The Principles of European Cooperative Law is, in many ways, the culmination of a line of work that started in 2009, when Euricse (the European Research Institute on Cooperative and Social Enterprises) was just established and undertook its first project on comparative analysis of cooperative law in the European Union. Since then, both the current state and the evolution of cooperative law have been key elements of Euricse‘s research program, which has yielded other important publications on this topic, including, most notably, the International Handbook of Cooperative Law in 2013. Th is line of research devoted particular attention to comparative analysis of the laws that regulate cooperatives in different countries, in Europe as well as in other continents. At Euricse, we are indeed convinced that the quality of the legal framework is one of the most important conditions affecting the degree of success of any institution, including cooperative and social enterprises.

    These first studies, carried out by convening and working with a growing international team of legal scholars from various European universities, highlighted the high degree of fragmentation and diversity of cooperative law in different national contexts, and started to investigate the barriers that this fragmentation poses to cooperative development and growth. The research showed that not only are cooperative laws quite different from country to country, but they often also fail to take into account the specificities of cooperative enterprises. Yet, when they do, they can be one of the most powerful tools for unlocking the potential of these enterprises and maximising their contribution to social and economic development.

    After the first comparative analyses of the main European countries (and some analysis of countries outside Europe), the research group realised that the difficulty of developing coherent and fairly homogeneous legislation across countries was due in part to the lack of a sufficiently general reflection on the basic tenets of a good cooperative law, regardless of national specificities. In other words, what was lacking was the construction of an ideal set of norms that would define the identity and identify the founding characteristics of cooperative enterprises without limiting their flexibility and ability to function. Th is was the starting point of the research that led to the results presented in this book.

  • Chapter 10 - Portugal

  • from Part II - National Reports
  • Gemma Fajardo-García, Antonio Fici, Hagen Henrÿ, David Hiez, Deolinda A. Meira, Hans-H. Muenker, Ian Snaith
  • Book:
    Principles of European Cooperative Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    13 September 2017, pp 409-516

  • Summary

    DEFINITION AND OBJECTIVES OF COOPERATIVES

    INTRODUCTION

    The comments that follow focus on the definition and objectives of cooperatives under Portuguese Law.

    We will refer to these issues primarily from the standpoint of the Portuguese Cooperative Code (the PCC –‘C ó digo Cooperativo Portugu ê s’) – which also forms the basis for our study – and consider the legal texts governing each of the twelve types of cooperative. According to article 4 of the PCC, there are twelve types of cooperative in Portugal today: consumer, trade, agricultural, credit, housing and building, worker, craft s, fishery, cultural, services, education, and social solidarity.

    It is explicitly permitted for one cooperative to operate in areas covered by more than one type: article 4.2 of the PCC distinguishes multi-purpose cooperatives (those covering more than one area of activity) from multisector cooperatives (those that carry out activities that are a feature of various types of cooperative within their sector).

    It should be noted that cooperatives are granted separate legal status under Portuguese Law by the Constitution of the Portuguese Republic (‘Constitui ç ã o da Rep ú blica Portuguesa’– CRP), which dedicates more than a dozen articles to them scattered throughout the constitutional text but nevertheless appropriately developed by means of a set of structuring principles, such as the principle of coexistence of the three sectors: the public sector, the private sector, and the cooperative and social sector (art. 82); the principle of freedom of cooperative initiatives (art. 61); the principle of protection of the social and cooperative sector (art. 80); the principle of the obligation of the State to encourage and support the creation of cooperatives (art. 85); and the principle of compliance with the ICA cooperative principles (art. 61.2 in fine).

    Company law must also be taken into account, particularly the provisions regarding joint stock companies, considering that article 9 of the PCC on the subsidiary law applicable to situations that are not foreseen in the PCC deals with‘the Commercial Companies Code (‘C ó digo das Sociedades Comerciais’– CSC), as long as cooperative principles are respected, particularly those sections that regulate joint-stock companies‘.

Page 223 of 386