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JUS - 2014 - 3

digital JUS - 2014 - 3
Fascicolo digitale
rivista JUS
fascicolo 3 - 2014
titolo JUS - 2014 - 3
editore Vita e Pensiero
formato Fascicolo digitale | Pdf

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Fascicolo terzo del 2014

SOMMARIO

Oltre il personalismo: Simone Weil e la critica alla nozione di diritto
di Filippo Pizzolato pagine: 16 € 6,00
Abstract
The essay concerns a philosophical controversy between Simone Weil and the personalism of Jacques Maritain and Emmanuel Mounier. This controversy calls into question also the constitutionalism, in so far it regards the mutual relations between human rights and duties. Simone Weil criticizes personalism because it failed to break the connection with the concept of force, which is still implicit in the idea of rights. She aims to give prominence and priority to the idea of duty. Only the duty is, according to her, related to the concept of Justice.
La partecipazione di Giuseppe Dossetti ai lavori dell’Assemblea costituente e la formazione graduale delle sue convinzioni in tema di Costituzione
di Silvia Illari pagine: 35 € 6,00
Abstract
This paper aims to celebrate the important role of professor Giuseppe Dossetti as an active member of the Constituent Assembly, and his passionate political and legal commitment on the occasion of the centenary of his birth. It first tries to highlight some correlations between the legal thought expressed by Dossetti during his lifetime with the constitutional scholarship, and then focuses upon Dossetti’s attitudes and convictions concerning the Italian republican Constitution that entered into force on 1st January 1948. He, in fact, had been a member of the Constituent Assembly with a lead role in the First Sub Commission in charge of drafting the section «the rights and duties of citizens» (1946-1947). During his parliamentary experience (1948-1952) he was actively involved in the political fight for the enforcement of the Constitutional text and worked to implement many reforms such as «La Cassa del Mezzogiorno». In the last years of his life (1994-1996), the old Founding Father was against the attempts of the Italian Government to modify the republican Constitution and promoted the creation of committees for the defence of the same Constitution throughout Italy.
Status di filiazione, nuovo concetto di parentela ed effetti successori: gli strumenti di protezione
di Giovanni Schiavone pagine: 44 € 6,00
Abstract
The newly enacted regulation concerning the status of children and the kinship concept has largely impacted the law of successions. This paper will, firstly, analyse the changes brought by the recent regulation to the system of legal successions and of representations. It will then look at the succession status (and its content) attributed to natural children who are not recognized, pointing out the related requirements and the extent of such cases. Finally, it will clarify the substantial profile of the succession rights of “children” and will examine the large number of protections given to them and, in particular, the action to claim the rights of an heir; all this also in light of the trend of the courts’ decisions (recently upheld) concerning the acquisition of the title to the estate by usucapion and on the basis of the transitory legal provisions set forth by the newly enacted regulation.
La dismissione delle Chiese. Problematiche aperte e prospettive tra diritto civile e canonico
di Isabella Bolgiani pagine: 28 € 6,00
Abstract
The possible new purposes of redundant places of worship are a real topical matter, both under a civil and canon law profile. The subject is very important because it is bound to the use of these buildings for cultural aims, but how redundant churches have to be appropriated for secular scopes is quite problematic. Besides cultural aims, “different” ways of use could be available and they deserve to be not neglected. Indeed, every possible use of redundant places for social activities and for general prosperity looks a good answer, as long as it respects the buildings previous holy nature.
Errore diagnostico e “wrongful ” birth: nuovi principi per la responsabilità medica?
di Francesco Zecchin pagine: 37 € 6,00
Abstract
When the doctor recognizes a deformities of the foetus just near the birth, the mother can claim damages for violation of the right to abortion provided that there has been causation between the breach of contract and the wrongful birth. The Italian Corte di Cassazione turns one’s attention to how the judge can check that if the mother had been informed, the law condition for the abortion would have been completed and she would have chosen interrupting the pregnancy. The A. discusses the various possibility in the light of breach of contract rules into the different steps of the relationship between the doctor and the mother.
Diritto e politica della concorrenza: a proposito di un libro recente in tema di fissazione orizzontale dei prezzi
di Marco Bellia pagine: 18 € 6,00
Abstract
In some recent works, Louis Kaplow deals with a recurring antitrust question: what rules and remedies are necessary to prevent supracompetitive prices in oligopolies, that are markets with a few sellers? Under an economic and non-formalistic approach, Kaplow examines whether the term «agreement» is susceptible of an interpretation sufficiently broad to include situations of tacit parallelism (or pure interdependence) in absence of explicit agreements or concerted actions among the parties. His conclusion is very skeptical concerning current application of antitrust rules against anticompetitive agreements, and calls for a different competition policy towards price fixing. This article gives an overview of Kaplow’s scholarship and discusses its potential reception and application in the European and Italian legal systems. It is argued that two main problems affect Kaplow’s interesting model. First, reliance on economic theory can be even more problematic than requiring evidence of an agreement in order for illicit collusion to be proved. Second, the economic approach leads to a sort of strict liability for undertakings in oligopolistic markets, and that would be hardly acceptable without a proper amendment of current competition law. Moreover, were such a paradigm shift possible in Europe, it should consistently involve the application of art. 102 TFEU, which prohibits the abuse of an individual or collective dominant position. As a final point, a more practical problem is outlined. Since Kaplow’s thesis concerns the link between market structure and antitrust liability, it sheds light on the issue of optimal application of merger control as well: in accordance with such an economic approach, a potential problem affecting current Italian merger control system is highlighted in the last section of this paper.

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