JOURNAL: Zeitschrift für Neuere Rechtsgeschichte XL (2018), heft 3/4

(image source: ZNR)

Articles

• DAVE DE RUYSSCHER, Tilburg, Brüssel – Cornelis M. IN´T VELD, Brüssel
  Der dogmatische Handelsbrauch in den Niederlanden und Belgien (19.–21. Jahrhundert), in: ZNR 40 (2018), S. 177–205

This contribution draws a distinction between three types of commercial practice. Usages-règle are customary practices in the sense that they constitute repeated conduct based on the belief that it is legally valid. Very often these practices have a limited scope and are regarded as supplementing the relevant legislation. Usages-présomption (or usages-conventionnels) are commercial practices which are intended to give concrete from to, and supplement, arrangements between contracting parties. Where commercial practices are treated as usage-principe, they are regarded as open rules which are capable of interpretation by the courts. Usages-règle were promoted by the Historical School in the early 19th century. Previously, commercial practices had frequently been treated as usage-principe, in that they were regarded as being narrowly linked to principles which were equated with “custom and practice” and could be derived and confirmed from various legal sources. From the end of the 19th century, commercial practices were predominantly regarded as usages-présomption in France and Belgium. In the Netherlands, on the other hand, their status as dogma became less significant, which was linked to the courts’ increased discretion in interpreting and supplementing contracts. Accordingly, Belgium needs a legally dogmatic approach towards commercial practices much more urgently than is the case in the Netherlands. However, the customary practices remain subject to the parties’ freedom to contract, and the qualification of such practices as rules has, in practice, not been completely achieved. In spite of the trend towards objectification when it comes to applying commercial practices, the traditions referred to above continue to prevail.

• EIJI TAKAHASHI, Osaka
  The History of Japanese External Corporate Governance and the Law in the 19th and 20thCentury, in: ZNR 40 (2018), S. 206–215

The capital market, internal corporate governance and the concept of the corporation are correlated in the modern legal history of Japan: Before the Second World War, the capital market was free from the network of mutual shareholdings. Hostile takeovers were frequent and management was strictly controlled by big shareholders. But after WWII, the network of reciprocal shareholdings emerged and there were de facto no more hostile takeovers in the actual sense. The power of employees grew to have a strong impact on the organizational structure of firms: Employees looked after their own interests without risk of replacement from outside stockholders. After the collapse of the bubble in 1990, the US concept of “shareholder value” was strongly emphasized in Japanese management and a new wave of hostile takeovers reached Japan. With that merger, control regimes and the conflicts between stakeholders had a deep impact on the dynamic change in corporate governance regimes. The German scholar Ernst Joachim Mestmäcker and his theory of antitrust and competition law played an important role in letting the attitude of the Japanese court’s position on hostile takeovers converge.

• GERHARD OBERKOFLER, Innsbruck
  Bruno Alexander Kafka. Ein jüdischer Repräsentant deutscher Rechtswissenschaft in Prag, in: ZNR 40 (2018), S. 216–237

In which ways have the German bourgeois jurists who have started their career in the Austrian Monarchy adapted to the living and working conditions in the Czech and Slovak Federal Republic? One successful example is the life and commitment of Bruno Alexander Kafka being a Jewish jurist in Prague.

• JAN SCHRÖDER, Tübingen
  Gerechtigkeit, Ideologie, positives Recht. Zur Bewältigung politischer Systemwechsel durch Rechtsprechung, in: ZNR 40 (2018), S. 238–257

The article deals with the transition from the Weimar Republic to National Socialism, from this to the Federal Republic of Germany and to the German Democratic Republic (GDR) and from the GDR to the Federal Republic of Germany. The question is how jurisdiction in the respective new political systems has eliminated unwanted old law that had not yet been abolished by specific statute law. A distinction must be made between retroactive elimination and abolition for the future. The retroactive elimination by positive law was impossible in Western Germany, according to Article 103 II Grundgesetz especially in criminal law. Therefore, the courts turned to supra-legal law and above all to the Radbruch formula of 1946, according to which intolerably unjust positive law is no law. However, there was increasing positivist resistance to this solution in the literature. National Socialism and the GDR did not need a Radbruch formula, because they allowed retroactive laws (the GDR, however, only until 1968 and only in certain cases). The abolition of old law for the future, on the other hand, is dealt with in all systems with the principle that politically outdated old law is automatically abolished with the change of system. This principle was first theoretically elaborated by Wilhelm Wengler in 1949. The present essay would like to emphasize his treatise, which is almost forgotten today.

Literaturbericht

• MARC VON KNORRING, Passau
  Kulturhistorische Innovation versus Jubiläumstristesse – und etwas mehr Licht auf die Nachkriegszeit. Neuerscheinungen zur Geschichte der europäischen Monarchien vom 19. Jahrhundert bis in die Gegenwart, in: ZNR 40 (2018), S 258–279

Länderbericht

• LUIGI LACCHÈ, Macerata
  Italian Legal History: a survey of recent trends and themes (2006–2017), in: ZNR 40 (2018), S 280–295 

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