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The Legal Profession

Hiroshi Oda

in Japanese Law

This chapter focuses on the legal profession in Japan. Judges, public prosecutors, and attorneys form a distinct group of professions called the hōsō. All members of the hōsō are required to pass the ... More

This chapter focuses on the legal profession in Japan. Judges, public prosecutors, and attorneys form a distinct group of professions called the hōsō. All members of the hōsō are required to pass the same uniform State examination and are trained in the Legal Research and Training Institute for one year. Judges, public prosecutors, attorneys, para-legals, foreign attorneys, and the uniform state examination and legal training are discussed.Less

Eurojust and the European Public Prosecutor in the Corpus Juris Model: Water and Fire?

Christine Van den Wyngaert

in Europe's Area of Freedom, Security, and Justice

Because crime in today's society may extend its operations internationally, domestic law and various institutions that aim to enforce such law are not enough in protecting citizens against crimes of ... More

Because crime in today's society may extend its operations internationally, domestic law and various institutions that aim to enforce such law are not enough in protecting citizens against crimes of this sort. Since internal borders between Member States have already been lifted, such problems have become more evident within the European Union, thus the need for improved co-operation between the said states arises. The ‘European Convention’, a joint effort of the European Communities and the European Union, has been able to draft a new constitution in which the legislative instruments and law-making institutions of both parties are combined into a new structure referred to as the ‘United States of Europe’. As criminal matters are increasingly gaining much attention, and in line with the joint European efforts, this chapter provides a discussion about Eurojust, comparing it with the notion of introducing a European Public Prosecutor.Less

Criminal Prosecution: Cash for Convictions

Nicholas R. Parrillo

in Against the Profit Motive: The Salary Revolution in American Government, 1780-1940

This chapter looks at criminal justice, which was another realm in which lawmakers experimented intensely with bounties as instruments of state-building before ultimately rejecting them. The focus is ... More

This chapter looks at criminal justice, which was another realm in which lawmakers experimented intensely with bounties as instruments of state-building before ultimately rejecting them. The focus is on the public prosecutor. Once the position of public prosecutor was created, it became the single most powerful actor in the American criminal justice system. This chapter contributes to debate around the nature and timing of the process by which the officer acquired such power.Less

The Role of the Public Prosecutor in Applying and Developing the Substantive Criminal Law

Jonathan Rogers

in The Constitution of the Criminal Law

This chapter focuses on the effects of criminalization decisions on the decision-making process in the public prosecutor's office. It argues that the public prosecutor should have a role in ... More

This chapter focuses on the effects of criminalization decisions on the decision-making process in the public prosecutor's office. It argues that the public prosecutor should have a role in identifying the reasons why an alleged activity seems to have been criminalized and considering whether these reasons are comprehensible to the rest of the community. If he cannot both identify and explain any possible reason for condemning a person for what he is alleged to have done, then discontinuance for the alleged offence is justified and even required. Otherwise he would not be applying the law as recognized by the community, and so the trial will have no communicative value (nor indeed could the prosecutor effectively communicate to the defendant his decision to prosecute him, if called upon to do so). But where he is unsure whether the alleged conduct is intended by the lawmaker to be criminal and has too little relevant legal material to make an informed opinion, then he may only prosecute in order to develop the law. The chapter distinguishes between applying the law and developing the law, and suggests that the standard tests in prosecutorial decision-making (the evidential test, the public interest test, and the fairness test) should apply differently depending on whether the prosecutor is trying to apply the existing the law, or to develop the law.Less

Making Agencies Accountable

in Making Law Matter: Environmental Protection and Legal Institutions in Brazil

This chapter shows how prosecutorial enforcement makes environmental law matter by making environmental agencies accountable. The first section discusses the various instruments that prosecutors may ... More

This chapter shows how prosecutorial enforcement makes environmental law matter by making environmental agencies accountable. The first section discusses the various instruments that prosecutors may use to oversee environmental agencies in Brazil. The second and third sections describe how prosecutorial oversight functions in the states of São Paulo and Pará, respectively. The final section discusses the various consequences of prosecutorial oversight, highlighting its legalistic tendencies as well as its accountability effects.Less

Effective Enforcement: Brazil and Beyond

in Making Law Matter: Environmental Protection and Legal Institutions in Brazil

The success of prosecutorial enforcement in Brazil has depended on having prosecutors with a relatively high level of political independence from the executive branch. In São Paulo, where state ... More

The success of prosecutorial enforcement in Brazil has depended on having prosecutors with a relatively high level of political independence from the executive branch. In São Paulo, where state prosecutors are highly independent, environmental enforcement has become a significant area of prosecutorial work. In Pará, where the independence of state prosecutors is not well established, environmental enforcement activities remained low. Yet this same independence leads to two important challenges for the Brazilian prosecutorial enforcement model. First, the Ministério Público's work is weakened by the lack of institutionalized forms of cooperation and coordination with other enforcement actors, particularly environmental agencies. Second, the Ministério Público lacks mechanisms of accountability. Prosecutors are not adequately “answerable” and “sanctionable” for unlawful actions or omissions. This chapter discusses the effectiveness of prosecutorial enforcement, the issues of prosecutorial independence, coordination challenges, and prosecutorial accountability. It concludes by examining whether the Brazilian model can be “diffused” or “transplanted” to other developing countries.Less

Can Animals Sue?

Cass R. Sunstein

in Animal Rights: Current Debates and New Directions

This chapter addresses the question of whether animals should be allowed to sue. It argues that, at a minimum, lawsuits should be permitted, on animals' behalf, to ensure compliance with existing ... More

This chapter addresses the question of whether animals should be allowed to sue. It argues that, at a minimum, lawsuits should be permitted, on animals' behalf, to ensure compliance with existing law. The chapter recommends that laws designed to protect animals against cruelty, and that abuse should be amended or interpreted to give a private cause of action against those who violate those laws, so as to allow private people to supplement the efforts of public prosecutors.Less

Environmental Protection and the Rule of Law

in Making Law Matter: Environmental Protection and Legal Institutions in Brazil

This chapter begins with a discussion of environmental regulation in developing countries. Environmental regulation refers to the set of rules developed by regulatory agencies to implement ... More

This chapter begins with a discussion of environmental regulation in developing countries. Environmental regulation refers to the set of rules developed by regulatory agencies to implement environmental laws. The common wisdom is that environmental regulation in developing countries often does not work, mainly because of the mismatch in political strength between interests that oppose environmental regulation and interests that favor it. The chapter then turns to prosecutorial enforcement in Brazil, describing how public prosecutors became significant actors in the enforcement of environmental laws and regulations. An overview of the subsequent chapters is also presented.Less

A Mixed Economy of Prosecutions: The 1880s

James Taylor

in Boardroom Scandal: The Criminalization of Company Fraud in Nineteenth-Century Britain

The establishment of the Director of Public Prosecutions (DPP) in 1880 raised hopes that the state would take a more active role in prosecuting company frauds. And indeed the first holder of the new ... More

The establishment of the Director of Public Prosecutions (DPP) in 1880 raised hopes that the state would take a more active role in prosecuting company frauds. And indeed the first holder of the new office initiated a series of prosecutions in the early 1880s, detailed in this chapter. But his approach was based on the assumption, shared by politicians, that his role was to supplement, not supplant, private actions; a mixed economy of prosecutions. This was not enough for his growing army of critics, who engineered a scandal which saw the DPP replaced and his office reorganized. Learning from his predecessor's failures, the new DPP built an impressive conviction rate on a larger volume of prosecutions, indicating that the courts were becoming less narrow in their application of criminal responsibility. But he still avoided taking on the bigger City scandals, to the consternation of his opponents.Less

Offences Against the State: The 1870s

James Taylor

in Boardroom Scandal: The Criminalization of Company Fraud in Nineteenth-Century Britain

This chapter shows that the higher frequency of company fraud prosecutions witnessed in the late 1860s was maintained in the new decade. Like the earlier trials, most revolved around that most ... More

This chapter shows that the higher frequency of company fraud prosecutions witnessed in the late 1860s was maintained in the new decade. Like the earlier trials, most revolved around that most contested of documents, the prospectus. But whereas the issue in 1869 had been disclosure, the question was now somewhat more fundamental: could directors be held responsible for a prospectus which lured people to invest in a bubble? Whilst the trials met with mixed results, the successes indicated a growing acceptance of private criminal prosecutions as a valid element in the regulatory mix. But this was not all. Sparked by the publicity given to some particularly bad cases in the middle of the decade, concerns about commercial morality strengthened arguments for the establishment of a public prosecutor. Such proposals were to receive a cautious but receptive response from paternalists in Disraeli's Conservative government.Less

The Legal Profession

Hiroshi Oda

in Japanese Law

Judges, public prosecutors, and attorneys form a distinct group of professions which is called the hōsō. Japan has a uniform bar examination for judges, public prosecutors, and attorneys. Successful ... More

Judges, public prosecutors, and attorneys form a distinct group of professions which is called the hōsō. Japan has a uniform bar examination for judges, public prosecutors, and attorneys. Successful candidates go through a one-year training run by the Supreme Court. There are other professions such as tax attorneys and patent attorneys which perform the role covered by attorneys in other jurisdictions. Corporate legal counsels also play a significant role.Less

Regulating the City: The 1890s

James Taylor

in Boardroom Scandal: The Criminalization of Company Fraud in Nineteenth-Century Britain

The Winding-up Act of 1890 had implications for the punishment of fraud. Whereas the burden of deciding whether to prosecute had previously fallen on the DPP alone, now the decision was shared, ... More

The Winding-up Act of 1890 had implications for the punishment of fraud. Whereas the burden of deciding whether to prosecute had previously fallen on the DPP alone, now the decision was shared, effective machinery existing by which cases of possible fraud were sifted, examined, and presented to the DPP. The number of prosecutions increased, and the new system weathered attacks on it from lawyers, accountants, and the Treasury. It survived because the criminalization of fraud was seen as essential, not only in the name of commercial morality, but of economic stability. The chapter concludes that criminal prosecutions established a new norm which came to be accepted by government, business, the courts, and the general public alike. There was to be no stepping back from two key principles: certain transgressions by company directors, managers, and promoters were criminal; and the state had a responsibility to prosecute at least some of them.Less

Epilogue: Following the Victorian Path

James Taylor

in Boardroom Scandal: The Criminalization of Company Fraud in Nineteenth-Century Britain

As well as drawing general conclusions, this chapter extends coverage of the subject into the twentieth century. It uses the trial of Whitaker Wright in 1904 to highlight how far the law had changed ... More

As well as drawing general conclusions, this chapter extends coverage of the subject into the twentieth century. It uses the trial of Whitaker Wright in 1904 to highlight how far the law had changed in the final third of the century. It then shows how approaches to the problem of fraud in the twentieth century owed much to strategies first developed in the later Victorian era. Lawyers and legislators went further down the Victorian path, rather than changing course. There was much continuity, both in sentencing and in the key legal concepts underpinning legislation. The chapter concludes by examining responses to the recent global economic crisis, identifying a turn away from criminal punishments, and suggests that this decriminalization of fraud might be untenable in the longer term.Less

Article 86 TFEU

Wolfgang Bogensberger

in The EU Treaties and the Charter of Fundamental Rights: A Commentary

In the absence of unanimity in the Council, a group of at least nine Member States may request that the draft regulation be referred to the European Council. In that case, the procedure in the ... More

In the absence of unanimity in the Council, a group of at least nine Member States may request that the draft regulation be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption. Less

The Frequency of Criminal Prosecutions

Wolfgang P. Müller

in The Criminalization of Abortion in the West: Its Origins in Medieval Law

This chapter pursues quantitative issues along three different trajectories. First, it questions the validity of statistical analyses that measure the recurrence of crime (as opposed to crime ... More

This chapter pursues quantitative issues along three different trajectories. First, it questions the validity of statistical analyses that measure the recurrence of crime (as opposed to crime allegations) with greater confidence than the procedural scope of late medieval court records would warrant. In the absence of any fuller documentation on punishable wrongdoing, the chapter also investigates particular patterns of recording and discuss frequency in terms of, first, geographical distribution; and second, the triple format of prenatal manslaughter charges successively in evidence in most of the judicial sources. The prosecution of fetal homicidium, while omnipresent in church jurisdictions from the 1200s onward, spread in the lay sphere in close connection with the teachings of the Ius commune and, at least until 1348, the English common law. Simultaneously, there was the progression in criminal caseloads from (private) accusations of miscarriage by assault to those on account of fetal death through poisoning and, still later in time, abortion in modern parlance, undertaken by or with the consent of the child-bearing mother. What marked this prototypical shift was the slow but inexorable growth of the coercive strength of public prosecutors.Less

Exclusion from the proceedings

Winfried Tilmann

in Unified Patent Protection in Europe: A Commentary

This Rule is self-explanatory. Exclusion from the proceedings is taken by the Court as a means of final recourse after one or more formal warnings have been issued. Exclusion should not be issued ... More

This Rule is self-explanatory. Exclusion from the proceedings is taken by the Court as a means of final recourse after one or more formal warnings have been issued. Exclusion should not be issued by one judge alone (judge rapporteur, single judge, standing judge), but by the panel before which the proceedings are pending. In addition, the competent public prosecutor’s office may be informed in the case of criminal acts. Less

Article 2 Material scope

Herke Kranenborg

in The EU General Data Protection Regulation (GDPR): A Commentary

The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data. This Regulation ... More

The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data. This Regulation does not cover the processing of personal data which concerns legal persons and in particular undertakings established as legal persons, including the name and the form of the legal person and the contact details of the legal person. Less

The Netherlands: National Correspondents: Prof Reinout Vriesendorp and Rick van Dommelen

in Rescue of Business in Europe: A European Law Institute Instrument

There is no established practise for facilitating out-of-court workouts in Dutch bankruptcy law. However, Dutch private law does allow for an out-of-court composition (buitengerechtelijk akkoord or ... More

There is no established practise for facilitating out-of-court workouts in Dutch bankruptcy law. However, Dutch private law does allow for an out-of-court composition (buitengerechtelijk akkoord or onderhands akkoord), in which the creditors agree to be paid partially or to be satisfied differently. This solution can be considered practically ineffective, since it requires the consent of all creditors for its realisation. Creditors who refuse to agree with the terms of the composition are still to be paid in full. Less