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European Journal of Law Reform


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Issue 4, 2015 Expand all abstracts
Article

Corruption and Controls

Keywords corruption, controls, inspections, administration, regulation
Authors Maria De Benedetto
AbstractAuthor's information

    Anti-corruption is a relatively recent policy which calls for controls. They represent the most effective means in rebalancing institutions which are not fully informed: ‘secrecy’, in fact, characterizes infringements and corrupt behaviour.
    Alongside criminal investigation, administrative controls and administrative investigation should be considered crucial because they intervene at early stages, when corruption has been developing, allowing real prevention.
    This article analyses some points that we should remember in order to connect controls and corruption correctly: first of all, controls have a hybrid nature: not only are they a way to combat or prevent corruption but also they are real occasions for corrupt transactions; furthermore, controls are a cost and administrative capacity of control is limited; moreover, planning controls is not a simple task; and finally, sanctions following controls must be effective in order to deter.
    The article also analyzes what is needed in matters of corruption controls, with special reference to good rules (aiming at a legal system with fewer but better rules, rules which work as incentives, rules capable of designing good institutions). There is also a need for good practices (in order to improve the understanding of corruption processes, to reduce controls, to cooperate in investigating cases of corruption).
    Finally, the article warns about the fact that corruption controls produce more bureaucracy and that early detection of corruption would mean, in this perspective, to make a diagnosis of ‘corruptibility’ starting from rules.


Maria De Benedetto
Full Professor, Roma Tre University.
Article

Can Imprisonment Be Cheaper? The Case for Private Prisons

Keywords costs, criminal law, law and economics, private prisons, privatization
Authors Elena Kantorowicz-Reznichenko
AbstractAuthor's information

    Custody is the most expensive method of punishment in the Western world, as compared to other alternatives. Although expensive, prison is an indispensible instrument to deal with judgement proof or dangerous offenders. Hence, by using the law and economics approach, this article explores prison privatization as an instrument for less expensive incarceration. This method has the potential to reduce the prison costs without hampering its quality. However, a restructuring of the current contracts is needed to achieve this purpose. The attention given to the topic of private prisons by the law and economics scholars, especially in the European context, is limited, and this article attempts to fill this gap. The present article applies arguments from the bureaucracy and political science literature to explain the inefficiencies of public prisons. Subsequently, the potential problems of private prisons are presented through the principle-agent model and solutions are offered.


Elena Kantorowicz-Reznichenko
Rotterdam Institute of Law & Economics (RILE), Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
Article

Financial Crime Prevention and Control

The Reforms of a ‘Unique’ Jurisdiction under EU Law and International Standards

Keywords Vatican financial system, money laundering, terrorist financing, 3rd AMLD, FATF Recommendations
Authors Francesco De Pascalis
AbstractAuthor's information

    Between 2011 and 2014, the Vatican City State (VCS) experienced a reform process which dramatically changed its financial system. The process is still ongoing, and its goal is to establish an anti-money laundering and counter-terrorism financing (AML/CTF) system. Importantly, this system will be based on the AML/CTF EU legislation and international standards. These facts are noteworthy. First, the reforms cast light on the main Vatican financial institutions against the background of the secrecy that has always characterized their functioning and business operations. Accordingly, there is now more transparency and information about the Vatican financial system. Second, the relevant EU law and international standards are tools through which the VCS can, for the first time, join an international network of countries, sharing and applying the same rules against money laundering (ML) and terrorist financing (TF). This is of extraordinary importance for a jurisdiction like the VCS, which has never referred to European or international principles in its rule-making. In particular, the openness to EU law and international standards stimulates investigating the reasons behind these changes and the impact that these sources of law are having on a jurisdiction regarded as ‘unique’ in the world.


Francesco De Pascalis
PhD in Law, Institute of Advanced Legal Studies University of London; Research Fellow, University of Zurich, Law Faculty. All errors and omissions remain the author’s.
Article

Commonalities in the English Tort and French Criminal Wrong of Defamation

Keywords defamation, tort, crime, comparative, path dependence
Authors Mathilde Groppo
AbstractAuthor's information

    This article considers the extent to which the nature of the regulation – tortious or criminal – influences the substantive content of the rules in England and France. It argues that the English and French regulatory features are the result of path dependence. Consequently, while they have led to substantive differences, they do not prevent the emergence of a shared approach to the wrong.


Mathilde Groppo
PhD Candidate, King’s College London.
Article

‘Living in Sin’: A Reform Proposal for Financial Relief Following Cohabitation Breakdown

Keywords cohabitation, financial relief, family trusts, common law marriage
Authors Luke Tattersall
AbstractAuthor's information

    The number of adults choosing to cohabit has increased by over 67% since 1991. Despite such a dramatic shift in social norms, the law governing financial relief upon relationship breakdown remains inept to handle the significant increase in cohabitants. This article examines how the current system of family trusts constitutes an archaic and inadequate means of dividing cohabitants’ assets. The law of trusts fails to reflect the subtleties of personal relationships, often resulting in financial injustice. The author goes on to consider the notion of common law marriage, highlighting how despite attempts by both the government and policy makers to dispel the concept it nevertheless remains prevalent throughout the United Kingdom. The core counterargument to extending financial relief is that it would undermine the institution of marriage and obscure the boundaries between cohabitant and spouse. This article critically examines this claim, adopting cross-jurisdictional analysis by considering the experiences of Scotland, Ireland and Australia where cohabitants have greater financial rights before concluding that the argument fails to stand up to scrutiny. The author ends by advancing a series of reforms designed to vindicate cohabitants, resulting in a fairer distribution of assets and bringing legal recognition to the United Kingdom’s largest growing family unit.


Luke Tattersall
Luke Tattersall is a trainee-barrister and Research Assistant in Law at Durham University. All opinions, errors and omissions are solely those of the author.