University of Macau / Faculty of Law

在現今與時俱進的社會中，為了達成多樣化的行政目的，會選擇以其他新型態的組織體代替傳統之行政組織來進行行政任務。在現行之組織體中，可供選擇的組織態樣包括行政機關、行政法人、國營事業以至於民營企業。至於該選擇哪一種組織型態以符合其行政目的，沒有一定的標準，法律亦無明文規定，原則上政府有選擇何種型態為最佳的權利。 在桃園航空站改制成國營公司之後，從原本得行使公權力之行政機關，變成無公權力可行使之機構。在其改制之後，對公司內部人員之法律關係，以及對外部組織之合作關係，是否發生變化？又這些變化是否會影響其相關業務之執行？又國營事業仍屬政府掌控及監督之組織，如有侵害人民相關權利及利益，是否有國家賠償法之適用？是否可以尋求行政爭訟以資救濟？這些問題都是本文欲探討之處。 桃園國際機場的改制，只是政府將交通建設進行企業化管理的第一步。台灣尚有十六個機場，如欲進行改制，在法制面上應注意哪些事項，而桃園國際機場是否應進一步走向民營化，也將作為本文之結論。 / In order to achieve diversified administrative purposes, the government will choose the other new types of organizations for administrative tasks to replace the traditional administrative organizations with this time. Among the different type of organizations currently in operation, alternative organizational forms include administrative organs, independent administrative institution, state-owned enterprises and private-owned enterprises. There is no certain standard regarding to which type of organization to choose for the administrative purposes, and there is no express statutory provision in the law. In principle, the government has the right to choose which one is the best choice. After Taoyuan Airport was transformed into a state-owned company, the change is from the executive organ that originally had to exercise public power turned into an organization that could exercise no public authority. After its restructuring, is there any change of the legal relationship of the company's internal staff, as well as the cooperation with external organizations? Will these changes affect the implementation of its related business? Owing to the state-owned enterprise still an organization which controlled and supervised by the government, is there any application of the State Compensation Law if it infringes on people's rights and interests? Otherwise, can we seek administrative litigation in order to provide relief? These questions will be explored in the text. The reform of Taoyuan International Airport is only the first step toward the government-led management of transport construction. There are still 16 airports in Taiwan. To reform the system, what matters should be noted on the legal system and whether the airport should be further privatized, these 2 issues will be the conclusion of this article.

This thesis deals with the conceptualization of access to land by the dispossessed as a human right and commences with an account of the struggle for land between the peoples of African and European extractions in South Africa. It is observed that the latter assumed sovereignty over the ancestral lands of the former. The thesis discusses the theoretical foundation of the study and situates the topic within its conceptual parameters. The writer examines the notions of justice and equity in the context of the post apartheid constitutional mandate to redress the skewed policy of the past. It is argued that the dispossession of Africans from lands that they had possessed for thousands of years on the assumption that the land was terra nullius was profoundly iniquitous and unjust. Although the study is technically limited to dispossessions occurring on or after the 13th June 1913, it covers a fairly extensive account of dispossession predating this date. This historical analysis is imperative for two reasons. Besides supporting the writer’s contention that the limitation of restitution to land dispossessed on or after 1913 was arbitrary, it also highlights both the material and non-material cost of the devastating wars of dispossessions. The candidate comments extensively on the post apartheid constitutional property structure which was conceived as a redress to the imbalance created by dispossession. This underlying objective explains why the state’s present land policy is geared towards facilitating access to land for the landless. The thesis investigates the extent to which the present property structure which defines access to land as a human right has succeeded in achieving the stated objective. It reviews the strengths and weaknesses of the land restitution process as well as the question of the payment of just and equitable compensation for land expropriated for restitution. The latter was carefully examined because it plays a crucial role in the success or otherwise of the restitution scheme. The writer argues that the courts have, on occasions, construed just and equitable compensation generously. This approach has failed to reflect the moral component inherent in the Aristotelian corrective justice. This, in the context of South Africa, requires compensation to reflect the fact that what is being paid for is land dispossessed from the forebears of indigenous inhabitants. It seems obvious that the scales of justice are tilted heavily in favour of the propertied class whose ancestors were responsible for this dispossession. This has a ripple effect on the pace of the restitution process. It also seems to have the effect of favouring the property class at the expense of the entire restitution process. The candidate also comments on the court’s differing approaches to the interpretation of the constitutional property clause. The candidate contends that the construction of the property clause and related pieces of legislation in a manner that stresses the maintenance of a balance between private property interest and land reform is flawed. This contention is supported by the fact that these values do not have proportional worth in the present property context of South Africa. The narrow definition of “past racially discriminatory law and practices” and labour tenant as used in the relevant post apartheid land reform laws is criticized for the same reason of its uncontextual approach. A comparative appraisal of similar developments relating to property law in other societies like India and Zimbabwe has been done. The writer has treated the post reform land evictions as a form of dispossession. The candidate notes that the country should guard against allowing the disastrous developments in Zimbabwe to influence events in the country and calls for an amendment of the property clause of the constitution in response to the practical difficulties which a decade of the operation of the current constitution has revealed.

This study critically analyzed land redistribution and economic empowerment of farm workers in the Stellenbosch agricultural area. Past socio-economic and political policies have resulted in a racially skewed and inequitable distribution of land as well as overcrowding, overstocking and poverty in the countryside. It has become imperative that fundamental change is brought about in order to improve economical opportunities of all South Africans to access land for beneficial and productive use. Land reform, as the central thrust of land policy, is not only part of the effort towards the creation of equitable land distribution, but also of national reconciliation and stability. This study analyzed the notion of economic empowerment of farm workers. It looked at historical overview of the evolution of politics in South Africa and contemporary legislative framework pertaining to land redistribution and farm workers in the Western Cape. A case study of Bouwland farm in the Stellenbosch agricultural area was used as an example of how land redistribution can contribute to economically empower farm workers.

This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores. / National Research Foundation

MSCAEC / Department of Agricultural Economics and Agribusiness

Text in Afrikaans, abstract in Afrikaans and English / Different methods of calculation of the loss of support of minor children, are investigated. According to one method (A), one first has to establish that the deceased's income was not all absorbed for his/her own maintenance. Only if there is surplus income available, it can be inferred that the deceased contributed towards the maintenance of the minor children and that the children have suffered a loss. According to another method (B) both parents' income are added and then divided between the family members. The minor child's loss of support is an amount which represent his/her share in the deceased's own income - a child automatically suffers a loss according to this method, in the event of death of a parent. Method B ought to be applied, because it is consistent with the reciprocal duty of support between spouses and the duty of spouses to maintain children. / Verskillende metodes om die verlies aan onderhoud van afhanklike kinders te bereken word ondersoek. Volgens een benadering (A) moet eers vasgestel word of die oorledene se inkomste nie alles geabsorbeer is vir sy /haar eie onderhoud nie. Slegs indien daar surplusinkomste was, kan aanvaar word dat die oorledene bygedra het tot die onderhoud van die minderjarige kinders en dat die kinders 'n verlies ly. Volgens die ander benadering (B) word beide ouers se inkomste bymekaar getel en dan tussen die gesinslede verdeel. Elke minderjarige kind se verlies aan onderhoud is 'n bedrag wat sy/haar aandeel in die oorlede ouer se afsonderlike inkomste verteenwoordig - 'n kind ly outomaties volgens hierdie metode 'n verlies. Metode B behoort meestal aanwending te vind, aangesien dit in ooreenstemming is met die wederkerige onderhoudsplig tussen gades en die plig van ouers om hul kinders te onderhou. / Private Law / LL. M. (Law)

University of Macau / Faculty of Law

L’importance croissante des fonds d’indemnisation, en droit français et dans les droits étrangers, invite à une étude approfondie de ces instruments alternatifs de compensation de dommages. Une analyse de leur champ d’application et de leur fonctionnement ainsi qu’une identification des objectifs de politique juridique font apparaître deux catégories de dispositifs : d’un côté, les fonds rétrospectifs chargés de gérer les conséquences d’un fait dommageable de grande ampleur survenu dans le passé et ayant fait l’objet d’une médiatisation importante ; de l’autre, les fonds prospectifs destinés à faciliter l’indemnisation de dommages isolés et à pallier des lacunes de la responsabilité civile ou administrative. Malgré des points de convergence, les fonds d’indemnisation se démarquent d’autres techniques d’indemnisation, telles que la Sécurité sociale et les assurances privées. Pour comprendre les raisons qui amènent le législateur à réserver un tel traitement particulier à certaines catégories de dommages, la notion d’indemnisation sociale, développée par la doctrine allemande, servira de point de départ pour construire un modèle explicatif qui appréhende notamment la diversité des régimes relevant d’un fonds d’indemnisation. Une comparaison de la procédure d’indemnisation devant un fonds et d’une action en responsabilité révèle un besoin d’ajustement de la réglementation des fonds pour exploiter au mieux les potentialités de ces instruments, aussi bien sur le terrain de la compensation que sur celui de la prévention des dommages. Une simplification des rapports entre les nombreux fonds et une meilleure articulation avec la responsabilité civile s’imposent pour assurer une intégration cohérente de ces régimes spéciaux dans le droit existant. / The increasing importance of compensation funds in French law and in other legal systems calls for a research study on this topic. The analysis of the scope and legal technique as well as the identification of the political aims behind those alternative compensation schemes reveals two categories: on the one hand, retrospective compensation schemes are introduced to manage the consequences of mass damages; on the other hand, the establishment of prospective funds remedies the gaps in tort law to facilitate the compensation of certain types of individual damages. In spite of similarities with Social security and private insurance, compensation funds form a unique compensation technique and can be held as the key element of social compensation, a concept which has been developed by German scholars and can explain the shifts between private and public compensation schemes as well as the diversity of fund regulations. However, a comparative approach of compensation under a fund regulation and a tort law action before the courts reveals a need for legislative adjustments in order to develop the full potential of alternative compensation schemes. A simplification of conflicts between different compensation funds and a better coordination with tort law actions have to be achieved to insure a coherent integration into the existing legal system.

Medical negligence is a growing concern within South Africa.1 The medical environment has great potential for conflict, because even the best trained physicians can commit errors that result in medical disabilities and sometimes in death.2 The conflicts that follow from these errors are mostly fuelled by emotions and they can become very expensive and time-consuming to settle using the litigation process.3 There is a growing recognition that alternative dispute resolution (ADR) systems in healthcare may alleviate some of the financial and psychological burdens on doctors and patients involved in medical negligence disputes. Mediation is a method of ADR that is flexible and it permits the parties to the dispute to have control over the resolution. A typical medical negligence dispute is driven by intensely emotional factors on the part of injured patients. Victims are not merely seeking financial compensation but they are also looking to understand the circumstances that brought on the event at hand. They want closure. A huge issue with regard to medical negligence litigation is the manner in which the claims are resolved. Litigation provides injured patients and caregivers with a traditional platform for addressing medical negligence claims. However, due to many reasons, this system seems not to be adequate for dealing with disputes arising from alleged medical negligence. Mediation offers a promising solution to the problems surrounding redress of medical negligence disputes. / Jurisprudence / LL. M.