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ครั้งที่ ๓๑ กรกฎาคม ๒๕๕๓
1Thursday, 24 June 2010
เทคนิคการเปรียบเทียบกฎหมาย
2Thursday, 24 June 2010
an introduction
ข้อควรพิจารณาในการเปรียบเทียบระบบศาล
ข้อควรพิจารณาเกี่ยวกับกฎหมายปกครอง
3Thursday, 24 June 2010
an introduction
4Thursday, 24 June 2010
Peter de Cruz, "Techniques of comparative law", in Comparative law in a changing world (London, 2007), pp. 219-249.
5Thursday, 24 June 2010
•major pitfalls & perils
•quest for methodology
•methods
6Thursday, 24 June 2010
• linguistic & terminological problems
• cultural differences
• objects of study
• comparability
• legal pattern
• bias
• exclusion & ignorance
major pitfalls & perils
7Thursday, 24 June 2010
linguistic & terminological
problems
8Thursday, 24 June 2010
cultural differences between legal systems
9Thursday, 24 June 2010
arbitrary selection of objects of study
10Thursday, 24 June 2010
comparability in comparison
11Thursday, 24 June 2010
viability of theory of a common legal pattern
12Thursday, 24 June 2010
imposition of one’s own legal conceptions
13Thursday, 24 June 2010
the four ‘law jobs’
•social control
•conflict resolution
•adaptation & social change
•norm enforcement
14Thursday, 24 June 2010
omission of extra-legal factors
15Thursday, 24 June 2010
the quest for methodology
• general character of comparative law
• subject matter
• macro v micro
• suitability of topics
• comparative method requirements
• test of functionality
16Thursday, 24 June 2010
clarifying the general character of
comparative law
17Thursday, 24 June 2010
the subject matter of the comparison
18Thursday, 24 June 2010
macro-comparison & micro-comparison
19Thursday, 24 June 2010
comparative method: requirements
20Thursday, 24 June 2010
the test of functionality
21Thursday, 24 June 2010
comparative legal methods
•Kamba’s three-stage approach
•a blueprint
22Thursday, 24 June 2010
Kamba’s three-stage-approach
23Thursday, 24 June 2010
•the descriptive phase
•the identification phase
•the explanatory phase
24Thursday, 24 June 2010
• norms
• concepts
• institutions
• socio-economic problems
• legal problems
• legal solutions
the descriptive phase
25Thursday, 24 June 2010
the identification phase
•differences
• similarities
26Thursday, 24 June 2010
the explanatory phase
• resemblances
•dissimilarities
27Thursday, 24 June 2010
“no one single method applicable”
28Thursday, 24 June 2010
a blueprint
29Thursday, 24 June 2010
1. Identify the problem.
2. Identify the foreign jurisdiction & its parent legal family.
3. Decide the primary sources of law & materials.
4. Gather & assemble the material relevant to the jurisdiction being examined.
5. Organise the material.
6. Provisinally map out the possible answers to the problem.
7. Critically analyse the legal principles.
8. Set out conclusions within the comparative framework with caveats & with critical commentary.
30Thursday, 24 June 2010
คําถาม?
31Thursday, 24 June 2010
ข้อควรพิจารณาในการเปรียบเทียบระบบศาล
32Thursday, 24 June 2010
• comparative law in courts
• comparative law & legislator
• comparativism & the verdict
• case law in non-common law jurisdictions
• styles of judicial decision
• overriding general principles
33Thursday, 24 June 2010
comparative law in courts
34Thursday, 24 June 2010
•a tool of interpretation
•a tool of law reform
35Thursday, 24 June 2010
sovereigntyv
“uniformity of outcome”
36Thursday, 24 June 2010
“comparison illuminate our understanding”
37Thursday, 24 June 2010
“The discipline of comparative does not aim at a poll of solutions adopted in different countries. It has the different and inestimable value of sharpening our focus on the weight of competing consideration.”
38Thursday, 24 June 2010
functional use of foreign law
• a tool of interpretation
• to look for solutions
• to promote a change
• to fill in a gap
• to discard an unsatisfactory solution
39Thursday, 24 June 2010
the three phases
•discovering: what is found
•understanding: what is to be used
•applying: how far
40Thursday, 24 June 2010
certain practical considerations
• language skills
• national insularity or pride: rule of proof; common law as a whole
• pressures: time & volume of work
• budget
41Thursday, 24 June 2010
“[A]ll judges cannot be expected to be
comparatists, but it is their duty to consult those who are in a
position to supply the information needed ...”
42Thursday, 24 June 2010
“[It] cannot be right to attempt to construe
‘acquiesced’ by reference only to its possible meaning at
common law or equity.”
43Thursday, 24 June 2010
comparative law & legislator
44Thursday, 24 June 2010
•a tool of interpretation
•a tool of law reform
45Thursday, 24 June 2010
justification of comparativism &
the verdict
46Thursday, 24 June 2010
the authority of case law in non-common law
jurisdictions
47Thursday, 24 June 2010
interpreters v
law makers
48Thursday, 24 June 2010
lower courtsv
superior courts
49Thursday, 24 June 2010
styles of judicial decision
50Thursday, 24 June 2010
•English
•French
•German
•Swedish
•American
51Thursday, 24 June 2010
the relevance of overriding general
principles
52Thursday, 24 June 2010
• aequitas
• bona fides/good faith
• good morals and public order
• custom
53Thursday, 24 June 2010
คําถาม?
54Thursday, 24 June 2010
ข้อควรพิจารณาเกี่ยวกับกฎหมายปกครอง
55Thursday, 24 June 2010
Administrative law?
The subjects?
Power allocation?
The procedure?
The instutions?
The judicial control?
Liability?
56Thursday, 24 June 2010
What is administrative law?
57Thursday, 24 June 2010
What are the subjects of administrative law?
58Thursday, 24 June 2010
the allocation of powers
59Thursday, 24 June 2010
administrative procedure
60Thursday, 24 June 2010
institutions providing legal redress
61Thursday, 24 June 2010
the judicial control of power
62Thursday, 24 June 2010
liability of the administration
63Thursday, 24 June 2010
conclusion
64Thursday, 24 June 2010
คําถาม?
65Thursday, 24 June 2010