22 August 2012

NOTICE: Comparative Law on SSRN (by way of the Irish Society of Comparative Law)

Additional articles from SSRN have been noted by our friend in the Irish Society of Comparative Law:

Koessler, James, Is There Room for the Trust in a Civil Law System? The French and Italian Perspectives (March 1, 2012)

It is argued, through the examination of two civil law jurisdictions – France and Italy, that there is room for the trust to be translated – not transplanted – into existing civil law institutions and practice. The extent to which this is the case and the most appropriate model for this introduction will be dependent on the cultural, historical and political background of each such jurisdiction.
Whilst Italy lacks a domestic trust law, it has taken advantage of the Hague Convention to develop a thriving local practice of using foreign law for Italian trusts. This effort, spearheaded by both doctrinal and jurisprudential support, has allowed the development of a consistent framework and the surmounting of the obstacles inherent in the civil law tradition. As a result of this process initiated nearly twenty years ago, these trusts can no longer be said to be ‘foreign.' A more accurate term would be ‘domesticated’ due to the distinctive features they have developed.

Whereas France has its fiducie, a sui generis institution introduced in 2007, which is structurally a trust in comparative law terms, it is, nonetheless, functionally neutered. Trusts can be based on civil institutions, as the examples of Panama and Quebec show, and it is to be hoped that the French fiducie represents such a first step and will, one day, play a similar role. In any case, recent reforms which have increased its flexibility both structurally and functionally are to be welcomed. In particular the decision, albeit unsuccessful, of the French legislature to introduce a concept of ‘economic ownership’ goes to show just how much the lines are blurring between civilian and common law traditions.

Roy Partain. "Comparative Family Law, Korean Family Law, and the Missing Definitions of Family" (HongIk University Journal of Law). June 2012. Vol. 13. No. 2.

This article uses comparative law to analyze the concept of ‘family’. In particular, the research focuses on how family is defined when a family group assembles outside of a nuclear marital family. The article discovers that ‘family’ is rarely defined outside of the concept of marriage in modern legal codes. However, eight characteristics and identifying behaviors of families can be found in the analysis of family law. These eight concepts are used to rebuild a potential definition of family that does not require the act of marriage.

This article proposes that family law should include a parallel definition for families that do not meet current marital definitions of family. This article does not advocate changing current marriage codes; it merely suggests adding room for non-nuclear families in family law. These other, non-nuclear families deserve legal support and recognition. It is time for family law to recognize that all families need legal protection and legal affirmation as families.

The reason to focus on family outside of the concept of marriage is that many family-type groups today fulfill the role of family life without legal recognition. These families serve broader societal goals of raising children, of providing for the elderly, and of sharing the burdens and responsibilities of life in a small group setting. Family law should extend the legal notion of family to include a wider array of options for non-nuclear families. These types of families are all ‘normal’ families in some sense of the idea of family, but they may simply lack two central ingredients: marriage and a nuclear spousal pair.

These types of families should have as much legal right to formally exist as families based in nuclear marriage and sexually-based procreation. Specifically, there should be a legal entity called a “family” that serves a small group of individuals living in some form of interdependency under a common roof. The basic argument is to provide a parallel option for these types of alternative families alongside the traditional marriage-based family option.

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