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Sijaintitietojen käsittely työnjohdollisessa ja työsuojelullisessa tarkoituksessa
No full textProcessing of location data in employmentThe processing of location data in employment constitutes an interference with the fundamental rights and freedoms of the employee. Therefore it involves numerous requirements. The first of these is the requirement of necessity and lawfulness of data processing. The employer is only allowed to process location data if this is directly necessary in the employment relationship. The legal basis for the processing of location data is determined either in accordance with the Act on Electronic Communications Services (917/2014) or the EU General Data Protection Regulation (2016/679; GDPR). The author finds that the relationship between the Electronic Communications Services Act and GDPR is not unambiguous, which is also why a proposal for the revision of the legislation is pending. It is justified to explicitly regulate the processing of location data in employment. The employer must also comply with other requirements in the Act on the Protection of Privacy in Working Life (759/2004) and in GDPR. These include co-operation or consultation procedures, risk-based planning of data processing, technical and organizational measures, and data protection impact assessment
Rangaistuksen määrääminen ja ennakkopäätöksiä koskeva tulkintaoppi
No full textTarkoituksemme on tässä kirjoituksessa tarkastella korkeimman oikeuden ennakkopäätöksiä näkökulmasta, joka on jäänyt näkemyksemme mukaan oikeuskirjallisuudessa vähemmälle huomiolle. Pohdimme muutaman rangaistuksen määräämistä koskevan korkeimman oikeuden ratkaisun avulla sitä, miten rangaistuksen määräämistä koskevia ennakkopäätöksiä olisi perusteltua lähestyä rikoslainopillisessa tutkimuksessa ja millaiseen vuoropuheluun oikeustieteilijällä ja lainkäyttäjällä on mahdollisuudet tällä alueella. Tavoitteemme on vastata seuraaviin kysymyksiin: onko rangaistuksen määräämistä koskevista korkeimman oikeuden ennakkopäätöksistä hahmotettavissa yhtenäistä ennakkopäätösten tulkintaoppia? Mitä erityispiirteitä rangaistuksen määräämistä koskeviin ennakkopäätöksiin liittyy ja miten niiden tulkinta mahdollisesti eroaa muista ennakkopäätöksistä
Artikkelikokoelma perheoikeuden filosofisista perusteista: Philosophical Foundations of Children´s and Family Law Edited by Elisabeth Brake and Lucinda Ferguson. Oxford University Press 2018.
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Yrityskulttuuri ja yhtiön rikosoikeudellinen vastuu
No full textCorporate culture vis-à-vis corporate criminal liabilitySolid empirical evidence suggests that corporate culture has a significant role in explaining corporate crime and other organisational misconduct. The article analyses corporate culture in the context of the Finnish corporate criminal liability regime. This novel, doctrinally motivated approach to corporate culture shows which cultural factors are relevant in avoiding criminal liability in organisational settings. The analysis draws on empirical evidence on individual decision-making and considers how relevant social environments affect decision- making. As described in the article, human beings as social animals are significantly influenced by the ethical climate of a workplace when considering what type of behaviour is rational and appropriate. The author demonstrates that even though weak corporate culture does not, as such, lead to criminal liability, negligent corporate behaviour is often a result of cultural failures, while a functioning mechanism to remedy such holding a managerial position
Itsepesukriminalisoinnin suhde myötärangaistuja tekoja koskevaan oppiin
No full textCriminalisation of self-laundering in relation to the concurrence doctrineThis article addresses the criminalisation of self-laundering from the viewpoint of the concurrence doctrine. In Finland, self-laundering is considered primarily as a secondary offence that carries no punishment. However, it is possible to impose a separate penalty for self-laundering in particular cases referred to in the law. Even in these cases, liability for self-laundering is limited by the concurrence doctrine and the related interpretation criteria of the punishability of secondary offences.
The article shows that, in assessing the relation between self-laundering and the predicate offence, the relevant question is how the criterion concerning further damage is conceptualised in practice. In this context, the possible emergence of further damage can be considered to relate to several types of concealment or disguising arrangements, to the damage caused by a self-laundering act and deviating from the predicate offence and also to legal interests which are protected by the self-laundering provision, and which are different with respect to the predicate offence. In other words, the question is which interpretation criteria on the punishability of a secondary offence are given the greatest emphasis in the assessment of the concurrence of offences in a self-laundering context. The interpretation may either provide support for the concurrence of offences concerning self-laundering and the predicate offence, or not provide such support.
The way in which the interpretation criteria are weighed is of special interest in reference to the punishability of self- laundering on the basis of its consequences because this sphere of punishability has not been restricted by law, unlike that pertaining to intent-oriented self-laundering. It is not justifiable to impose a separate punishment for self-laundering especially in case of minor offences, although the established interpretation criteria of the punishability of a secondary offence, excluding the criterion of regular involvement, would in fact enable an interpretation that expands the punishability of self-laundering of this type. It would seem that the independent reprehensibility aspect of self-laundering is connected, above all, to the active money laundering operations of the self-launderer. In situations like this, it may be justified to draw the conclusion that self-laundering and the primary offence are not concurrent offences, whereby it is possible to impose a separate punishment for self-laundering.
Kansainvälinen vero-oikeus murroksessa: sääntelyalan modernisoitumisen askelmerkkejä
No full textInternational tax law at a crossroads: Pathways to modernisationAn OECD project on Base Erosion and Profit Shifting (BEPS) has brought significant changes to international tax law and to the international tax treaty system. Recent years have witnessed many changes to tax law rules in Finland and elsewhere, as required by the OECD recommendations, BEPS-related EU directives, and domestic policy considerations. The new regulatory measures have brought changes to countless technical details of tax legislation, but also to the underlying objectives and key operational principles of international tax law. The author discusses the broader normative and theoretical implications beneath the technical layer – how BEPS has changed and is about to change the nature of international tax law as a field of law. The ascent of multilateralism and changes in the sources of international tax law are highlighted in the analysis. The author concludes that recent developments have given rise to a need for the formation of new theory. In order to fully recognise and understand the normative impacts of recent changes in the field, practically-oriented legal analysis must be supplemented with conceptual and theoretical approaches
Rikossäännösten oikeushyväulottuvuus lainkonkurrenssiarvioinnissa korkeimman oikeuden ratkaisukäytännön valossa
No full textUrakkasopimussuhteiden ongelmakohdat ja funktionaalinen sopimusteoria niiden ymmärtämisessä
No full textProblems in contractual relationships in the construction sector and functional contract theoryThe article aims at recognising problems arising in contractual relationships between enterprises in the construction sector, by identifying the most common types of dispute between the parties and their underlying, recurring factors. Moreover, the article looks into whether these problems can be understood and prevented by the application of functional contract theory. The starting point is that a traditional contract model, stating the parties’ rights and obligations, is not necessarily the best conceivable way of forming a contractual relationship in the complex context of the construction sector.
The author looks at the problems appearing in the praxis of Finnish Courts of Appeal in 2014–2018. The construction sector seems to be affected by a contracting culture in which oral agreements and deviations from the agreed contract terms are relatively common. A contract is seen as an instrument that diverges from practice and has little weight in execution. This contracting culture has been an underlying factor in numerous conflicts.
The author finds that the construction sector needs contracting practices that advance the practical execution of a project. Functional contract theory, which looks at contracts as business management tools, seems to offer one basis for the development of construction contracts. Deliberate introduction of new functional elements to contracts and improvement of existing ones, as well as the development of contracts into management tools, could reduce the need to deviate from agreed terms and increase the weight of contracts throughout the construction project. When formulating contracts, it is essential to concentrate on drafting effective, project-specific terms. However, this increases the costs of construction projects. In addition, the prevailing construction contract model limits the wider use of functional contracting in Finland. On the other hand, better resourcing of the contract process and examination of contracts from the point of view of their distinct functions could improve the quality of contracts and thereby prevent conflicts between the parties
Itsestään ajavat autot ja rikosoikeudellinen vastuu
No full textSelf-driving cars and criminal liabilityA lot of time and resources have been invested in the development of self-driving cars over the past decade or so. Even though technological progress has not been as swift as had been anticipated, self-driving cars will be on the road sooner rather than later. Self-driving promises to revolutionise how people travel and commute, but from a legal point of view it also causes a myriad of issues yet to be solved. In the article, the author maps out some of the issues self-driving cars and the technology behind them raise in the field of criminal law. Special attention is paid to the concepts of intent and negligence as defined in the Finnish Criminal Code and to how they can be adapted to a future where cars no longer have human drivers. The author concludes that negligence is better suited for the task since it is theoretically more flexible than intent-based liability. The full scope of negligence liability will depend on future regulation of e.g. the manufacture and testing of self-driving cars. In other words, how we choose to regulate self-driving cars will affect what will constitute criminal negligence. As it is mainly large corporations that are in the business of developing self-driving cars, the focus is likely to be more on corporate criminal liability rather than individual criminal liability