Le droit fiscal international contemporain vit une époque de bouleversement profond dont les développements relatifs à l’utilisation des conventions fiscales portent l’empreinte. La recherche conduira à s’intéresser à différents agissements qui se trouvent, grâce aux travaux consacrés au BEPS, sous le feu des projecteurs. Un éclairage nouveau s’avérait nécessaire, il a permis d’apporter un peu plus de lumière sur la notion d’abus de convention fiscale internationale trop longtemps restée dans l’ombre. Face à l’absence de définition unanimement consacrée, certains traits caractéristiques seront mis en évidence en insistant sur la dimension fonctionnelle de la notion qui épouse la forme d’un standard. Dans le cadre d’une analyse comparée menée à l’aune des droits français et américain, l’étude a pour objet de l’appréhender sous un regard nouveau en délimitant précisément les modalités de contrôle des opérations abusives. Les techniques de répression des abus mises en œuvre par les juges seront analysées. Les différents dispositifs internes et conventionnels anti-abus seront discutés en insistant sur les points de divergence et de convergence des politiques fiscales conventionnelles américaine et française. Une attention particulière sera portée aux conflits de norme inhérents à la juxtaposition de différents ordres fiscaux. L’idée selon laquelle, sous l’effet de l’instrument multilatéral notamment, la notion d’abus de convention fiscale internationale a acquis une individualité propre sera défendue. Il importera d’en préciser les conséquences au regard de la répression des abus par le juge français / Contemporary international fiscal law is undergoing a period of upheavals regarding the use of tax treaties. The research will lead to an interest in the different type of abuse that, thanks to the work devoted by the BEPS, are under the spotlight. It was necessary to shed some new light on the notion of tax treaty abuse that had long remained in the background. Faced with the absence of an unanimously adopted approach, many characteristics will be highlighted by insisting on the functional dimension of the notion which follows the form of a standard. In the context of a comparative analysis conducted in the light of French and American law, the object of the research is to analyse its several aspects from a new perspective by defining precisely the modalities of controlling abusive schemes. How judges deal with tax treaty avoidance strategies will be analysed. The various internal and international anti-abuses mechanisms will be discussed, highlighting the points of divergence and convergence of U.S. and French tax treaty policies. Attention will be paid to the conflicts of law regarding the juxtaposition of different tax order. The idea that under the effect of the multilateral instrument the notion of tax treaty abuse has acquired a distinct individuality will be defended. It will be important to specify what are the consequences for the application of the notion by the French judge

Submitted by Marcia Bacha (marcia.bacha@fgv.br) on 2014-07-29T18:49:09Z No. of bitstreams: 1 1441612.pdf: 7296177 bytes, checksum: 7e700ddc28ec670630100fd42e9aef61 (MD5) / Approved for entry into archive by Marcia Bacha (marcia.bacha@fgv.br) on 2014-07-29T18:49:26Z (GMT) No. of bitstreams: 1 1441612.pdf: 7296177 bytes, checksum: 7e700ddc28ec670630100fd42e9aef61 (MD5) / Approved for entry into archive by Marcia Bacha (marcia.bacha@fgv.br) on 2014-07-29T18:49:38Z (GMT) No. of bitstreams: 1 1441612.pdf: 7296177 bytes, checksum: 7e700ddc28ec670630100fd42e9aef61 (MD5) / Made available in DSpace on 2014-07-29T18:49:47Z (GMT). No. of bitstreams: 1 1441612.pdf: 7296177 bytes, checksum: 7e700ddc28ec670630100fd42e9aef61 (MD5) / This dissertation intends to show that the State Civil Small Claims Courts, regulated by the Law 9.099/95, guided by the principIes of orality, simplicity, infonnality, procedural economy and celerity, which were created because of the need to make a greatest access to justice viable, mainly among the poorest, with the reduction of costs and simplification of procedures that could make the judgements within a reasonable period possible, in the forensic custom rcality, are being misconstrued from their purposes. In this sense, the study shows numbers that confinn that the Small Claims Courts accomplished their aim to provide the access to the judiciary, but started to sufTer from the same problem of ordinary justice: slowness in the delay of jurisdictional execution. Besides the structure incompatibility with the CUlTent demand that will obviously cause slowness in the Small Claims Courts, the study shows the reason for this way of acting of the judges, responsible for the administration of the process, that reproduce in the Small Claims Courts the fonnality and the inherent bureaucracy of regular Civil law, when it establishes, in evident lack of measure with the law in its principies, a procedure with two fonnal audiences, one for conciliation, another when an agreement is 110t reached, for instruction and judgement, in separated days, increasing the time of process duration. The study concludes that the use of a single fonnal audience, besides being a legal detennination, is also in syntony with its principIes, and provides celerity in the judgements, reducing the cost and the waiting time of the litigants, obstacles to the access to justice which the law 9.099/95 tried to remove. / Esta dissertação pretende demonstrar que os Juizados Especiais Cíveis Estaduais, regulados pela Lei n° 9.099/95, orientados pelos princípios da oralidade, simplicidade, informalidade, economia processual e celeridade, que foram criados em decorrência da necessidade de viabilizar um maior acesso à justiça, principalmente da população mais carente, com redução de custos e simplificação de procedimentos que possibilitassem os julgamentos dentro de um prazo razoável, na realidade da práxis forense, estão sendo desvirtuado dos seus objetivos. Neste sentido, o estudo apresenta números comprovando que os Juizados Especiais cumpriram seu desiderato de proporcionar o acesso ao judiciário, mas que passaram a padecer do mesmo problema da justiça comum: a morosidade na entrega da prestação jurisdicional. Além da incompatibilidade de estrutura com a atual demanda que obviamente vai ensejar lentidão nos Juizados, o estudo apresenta como motivo para esse quadro a conduta dos juizes, responsáveis pela administração do processo, que reproduzem nos Juizados o fomlalismo e a burocracia inerente ao processo civil comum, ao instituir, em evidente descompasso com a lei e seus princípios, um procedimento com duas audiências, sendo uma para conciliação e outra, nos casos em que não é obtido acordo, para instrução e julgamento, em dias distintos, aumentando o tempo de duração dos processos. O estudo conclui que a utilização de audiência única, além de ser uma detenninação legal e estar em sintonia com seus princípios, proporciona celeridade nos julgamentos. diminuindo o custo e o tempo de espera dos litigantes, obstáculos do acesso à justiça que a Lei n° 9.099/95 procurou remover.

Submitted by Pedro Mizukami (pedro.mizukami@fgv.br) on 2011-08-17T20:57:51Z No. of bitstreams: 1 DMPPJ - AGOSTINHO TEIXEIRA DE ALMEIDA FILHO.pdf: 589195 bytes, checksum: 1790025fb2fdaf4044dbb92314c6c229 (MD5) / Approved for entry into archive by Pedro Mizukami (pedro.mizukami@fgv.br) on 2011-08-19T17:44:43Z (GMT) No. of bitstreams: 1 DMPPJ - AGOSTINHO TEIXEIRA DE ALMEIDA FILHO.pdf: 589195 bytes, checksum: 1790025fb2fdaf4044dbb92314c6c229 (MD5) / Made available in DSpace on 2011-09-02T18:44:10Z (GMT). No. of bitstreams: 1 DMPPJ - AGOSTINHO TEIXEIRA DE ALMEIDA FILHO.pdf: 589195 bytes, checksum: 1790025fb2fdaf4044dbb92314c6c229 (MD5) Previous issue date: 2010 / Esta dissertação tem por objetivo analisar os institutos da decisão monocrática e do agravo interno, sob o prisma de metodologia empírica que busca priorizar a realidade pragmática da aplicação do artigo 557 do Código de Processo Civil. Enfocou-se o instituto da decisão monocrática no contexto das minirreformas processuais brasileiras, que tiveram como alicerce o princípio da efetividade processual. Esse princípio pressupõe a duração razoável do processo, garantida na Constituição Federal Brasileira. A partir da constitucionalidade desse princípio, defendeu-se a constitucionalidade do artigo 557 do Código de Processo Civil, que não pode ser considerado abstratamente inconstitucional. Demonstrou-se que a aplicabilidade do artigo 557 pode ser inconstitucional se não atender à técnica da ponderação de valores, que garante a interpretação conforme a Constituição. Analisou-se o agravo interno, sob a premissa do valor da celeridade em cotejo com o devido processo legal, que permeou a subsequente análise do procedimento desta espécie de agravo. Após uma reflexão sobre os institutos da decisão monocrática e do agravo interno, aliada ao exame dos princípios do devido processo legal, ampla defesa, contraditório e motivação das decisões judiciais, passou-se ao exame empírico desses institutos jurídicos. Nessa análise, foram coletados e examinados dados estatísticos, que confirmaram – e, assim, possibilitaram a conclusão da dissertação – a constitucionalidade do artigo 557 e a importância de sua interpretação conforme os referidos princípios constitucionais. / This dissertation has the purpose to analise the institutes of the single verdict and the internal appeal, according to empirical methodology that focus the pragmatic reality of the 557 th. dispositive of Code of Civil Procedure`s enforcement. This dissertation focused the institute of the single verdict in the context of the reformation of the Brazilian Code of Civil Procedure, which had as foundation the principle of procedure efectiveness. This principle presupposes a reasonable duration of the suit, secured by the Brazilian Federal Constitution. From the constitutionality of this principal, this dissertation defended the constitutionality of the 557 th. dispositive of Code of Civil Procedure, which can`t be considered abstractedly unconstitutional. This dissertation proved that the enforcement of the 557 th. dispositive could be unconstitutional if doesn`t suit the technique of the weighing of values, which secures the interpretation according to the Brazilian Federal Constitution. This dissertation analised the internal appeal, under the presupposition of the value of the reasonable duration of the suit in comparison with the due process of law, which motivate the following analysis of the internal appeal proceeding. After a reflection of single verdict and the internal appeal institutes, also with the analysis of due process of law, legal defense, adversary system and the motivation of the judgement, this dissertation analised the empirical enforcement of these institutes. In this analysis, estatistic data have been collected, which corroborate – and, therefore, enabled the conclusion of the dissertation – the constitutionality of the 557 th. dispositive of Code of Civil Procedure and the consideration of its interpretation according to the mentioned constitucional principles.

This thesis examines the viability of the concept of political liberalism. Since its emergence, the idea of a purely political liberalism has been the subject of a voluminous amount of discourse and debate. The concept of political liberalism has been presented as both a solution to the problems of justice and political stability troubling liberal democracies and an exemplar of all that is wrong with contemporary political philosophy; it has, quite literally, altered the landscape and the vernacular of contemporary political theory. Herein it is argued that, despite the significant amount of literature that has been devoted to the analysis of the idea of a purely political liberalism, the idea itself has yet to be subjected to the type of critique that is required if one is to assess its viability effectively. Though there have been a number of contemporary political theorists who have developed conceptions of political liberalism which they believe differ in important ways from those of their doctrinal colleagues, detailed analyses of the concept of political liberalism have and remain focussed almost exclusively on a single formulation: namely, Rawlsian political liberalism. This singular focus has precluded the completion of a comprehensive assessment of the viability of the concept (as opposed to a single conception) of political liberalism as represented both by Rawlsian and non-Rawlsian models. This thesis confronts this problem by expanding the scope of investigation to include a fulsome examination of other prominent paradigmatic conceptions of political liberalism namely, those developed by Charles Larmore and Judith Shklar and in so doing provides a more inclusive and, subsequently, thorough critique than has previously been offered. Adopting such an approach reveals that, despite protestations to the contrary, the prominent paradigmatic conceptions of political liberalism are sufficiently similar in all important respects to enable their conflation for the purpose of analysis; and when subjected to a thorough analysis, the idea of a purely political liberalism proves itself to be untenable. / Political Science / D. Litt. et Phil. (Politics)

My research concluded by the dissertation thesis focused on transfer pricing in financial management. The aim of this paper was to analyze the use of contracts for cost-sharing, contracts for contributing to the cost and service level agreements in a group of related persons of multinational companies. The work is divided into three logical parts. The first part of my dissertation analyzed the available scientific work and literature. A number of publications deals with the issue but only marginally. I thus drew upon mainly legal texts. I assumed the potential for practical use based on my finding that about 72 % of companies doing business in research and development operate in clusters of related persons. The second part of the paper deals with contracts for cost-sharing and cost contribution agreements. The basic problem of both agreements is reasonable estimation of the expected benefits. I suggested a procedure for estimation of benefit sharing among participants and also what indicators to use for measuring. Then I defined the share of costs. I suggested a definition of K.O. criteria for other than the U.S. legislation for incorrectly estimated shares. In this theoretical treatise on the weighted cost of capital I have found that companies that are not part of a group of related persons have a lower WACC. I pointed to the significant impact of agreements on avoidance of double taxation. As an alternative to the above contracts in the Czech Republic I presented a contract of association under the Civil Code. The third part of this work is dedicated to the Service Level Agreement. I conclude that it is necessary in certain ways to measure benefits, as it is a very important factor for the recipient of services. The benefits, however, cannot be measured directly, but through auxiliary variables, when the determining will always be influenced by the applied accounting standards. The second examined aspect was the allocation of costs to the service provider. Here, I conclude that there is no universally correct way. However, essential for these costs are only the actual relevant costs incurred in connection with the provision of intangible assets. Lastly, I focused on the usual profit margin surcharge over the cost provider of intangible assets. I conclude that when setting profit margins in accordance with the arm's length principle one should build on the level of normal returns on the invested assets of the provider.

The Maintenance of Surviving Spouses Act 27 of 1990 came into operation thirty years ago and has remained relatively unchanged since its promulgation. The stated objective of the Act is to provide the surviving spouse with a claim for maintenance against the estate of the deceased spouse in certain circumstances. This objective is sound, as it is evident from an analysis of the history of our law that legislation was needed to address the financial position of a survivor following the death of his or her spouse. The practical application of the Act is, however, not as robust as it does not always achieve the stated objective and often leads to unintended consequences. This research has a dual objective. The first aim is to analyse the practical considerations when an executor applies the Act and to consider the challenges the executor must deal with when considering a maintenance claim under the Act. The second aim is to investigate possible solutions to these challenges and to consider whether there are viable alternative arrangements for the way in which a maintenance claim under the Act is handled. The purpose of the study is to formulate a comprehensive recommendation for legislative reform of the Act so that the practical application of the Act achieves a result that reflects the objective of the Act. / Private Law / LL.D.

The current South African legislative framework does not properly address the unequal bargaining position between employers and fixed term employees. Ineffective regulation of fixed term employment in South Africa has had the effect of excluding certain groups of fixed term employees from claiming the remedies provided in terms of the Labour Relations Act and other labour legislation. Furthermore, where remedies are applicable to them they are often ineffectual. Interpretational variation evident from case law pertaining to the enforcement of the rights of fixed term employees, indicate clear lacunae in the unfair dismissal protection afforded to these vulnerable employees. This is mainly a consequence of uncertainties related to the interpretation of the legislative provisions. The infusion of the values entrenched in the Constitution of the Republic of South Africa and the development of the common law to reflect these values might augment the scope and availability of rights enjoyed by fixed term employees. But, changing socio-economic and political circumstances necessitates review and amendment of the legislation applicable to fixed term employees to meet the country’s constitutional and international obligations. Proposed amendments to the Labour Relations Act have been tabled. These amendments may be capable of addressing some of the current problems. However, they may also lead to other undesirable consequences. An investigation into problems related to the application of similar provisions as those proposed by the Labour Relations Amendment Bill in other jurisdictions crystallises some possible causes for concern. Some of the proposed changes could create new vulnerabilities, or renew old ones. / Private Law / LL. D.

This study investigated the education, training, and developmental support offered to employees with disabilities, the contribution thereof to their wellness, and the support needed to further improve their wellness. The Bio-psycho-social Model of Disability and the Six-dimensional Model of Wellness were used as the theoretical lenses to better understand disability and wellness. The aim was to answer the research question, “What kind of education, training, and developmental support is offered to employees with disabilities in organisations?” Within the interpretivist paradigm, the researcher used qualitative research to better understand the wellness experiences and developmental needs of employees with disabilities. Twelve participants were identified with the assistance of organisational representatives as part of snowball sampling, before the researcher conducted semistructured interviews with each. The researcher and an independent co-coder then analysed the data, using content analysis. The study revealed that participants described mostly positive experiences on all six wellness dimensions, but they considered the education, training, and developmental support provided insufficient on most of the dimensions. They indicated that, to improve their wellness, their employers need to offer disability-specific education, training, and developmental support to all stakeholders including colleagues, managers and community members. This stressed the need for a wellness framework that includes the education, training, and developmental needs unique to disability. The Wellness Framework for Employees with Disabilities proposed as a result of this study indicates the participants’ personal and work-related developmental needs, as well as the organisational and community development they feel will contribute to their wellness. This support should also empower employees with disabilities to become change champions for disability, to drive disability awareness, and, with organisational support, change and ensure the implementation of relevant public policies. The study was limited by the availability of research on disability, and further research to evaluate the effectiveness of the proposed wellness framework and the disability-related public policy developed since 2014 is suggested. Future studies could also investigate other wellness variables, to holistically understand the wellness of persons, specifically those with disabilities. / Inclusive Education / D. Ed. (Inclusive education)

2012年在金融風暴與連動債事件之影響下，我國設立金融消費者保護專法引入金融消費評議制度，並成立財團法人金融消費評議中心，為我國金融消費保護開啟濃墨重彩的全新篇章。在我國眾多現存的替代紛爭解決機制中，金融消費評議機制可謂是別具特色，特殊的組織、新穎的程序進行方式，有別於法院，亦有別於其他ADR組織。金融消費評議程序大致上仿自英國金融公評人制度，混合部分我國相關法令規則設計而成，而在這五年的運行當中，評議程序是否發生問題、是否完全合於我國法制、國情？此即本文所欲研究之方向。 對於現行評議制度之檢討，本文以評議實務上之重要問題出發，提出四大問題方向，分別是以評議「前端程序、受理程序、調查程序、糾紛解決效力」為核心。本文並以我國法釋義、立法歷程研究、案例研究、學者論述研究、比較法例研究，包括英國、新加坡、澳洲等國金融ADR制度為主要研究方法，對以上議題分析並提出個人的觀察與淺見。 研究結論上，本文得出幾點具體建議與觀察成果:1、應立法授權主管機關建立金融服務業標準化之內部申訴制度，以強化申訴制度之效率與明確性；2、對於小額評議案件改採強制調處制度，以加強前端程序糾紛解決能量；3、評議制度應明文採取強制管轄模式，揚棄現行曖昧不明之立法模式；4、修整現行評議案件不受理條文，刪除當事人不適格情形，將同時將並行評議與訴訟或其他ADR程序納入不受理事由，並新增彈性不受理條款供金評中心裁量運用；5、強化金評中心事證調查權限，將調查範圍擴大至申請人造，並使違反法律效果明確化；6、解釋上，成立後核定前評議決定應具有和解契約效力。此外，於申請人縮減請求額度成立評議決定情形，應允許其對於縮減後真實損害餘額繼續訴訟救濟。

我國為配合加入WTO，紓緩日後大量農產品開放進口，對本土農地利用管理與農業生產所帶來的衝擊，政府乃大幅度修正農業發展條例（以下簡稱農發條例），以為因應。該條例及配套法案業於民國八十九年一月四日、六日及十三日經立法院三讀通過，並由總統於同年一月二十六日公布施行。本次農發條例之修正要點，在農地政策方面，主要側重於農地合理的利用、有效地管理與適當的釋出，其中最大的轉變在於調整為「放寬農地農有，落實農地農用」原則，不再限制農地移轉承受人之身份與資格，並有條件地許可農企業法人承受農地。這樣的變革，旨在建立更為開放競爭的耕地買賣市場，增進耕地的流動性，以利農業經營者取得耕地，調整農業經營結構，應值贊同。然而，條文內容有無疏漏不妥？仍有待深入檢討；條文原則性的規定能否落實？尚待相關法令的配合修訂，方能儘速建立合理農地利用、管理與釋出機制，以確保我國的農業發展。 　　緣此，本研究乃就農發條例之研修條文內容，深入探析農地政策與移轉規定之轉變，同時藉由實地調查（問卷調查與深度訪談）及拜訪農政等單位，以瞭解移轉制度變遷之實施現況及其對農業經營之影響程度，並訪察農業經營者之意向及博採各方之想法，據以確實地檢視現行農地移轉制度有關之爭議與問題，再提出研修現行條文、修訂行政命令及研議配合措施等改進意見，冀能有助於促進農地合理利用，並供後續法律修正、執行之參考。最後，再綜合本研究之成果，推衍以下結論： 　　一、調整農地農有制度係時勢潮流，農地農用管理機制應詳加落實。 　　二、實證調查發現，受訪者大抵認同目前農地移轉制度之變革規定，惟對促進農地流動及帶動農業升級助益不大。 　　三、引進農企業法人承受耕地之成效不彰，且牽涉法令繁多，亟待整合修訂。 　　四、制度規則未能公平提供誘因，且未能有效減低執行面之不確定性，應儘速檢討改進並確實執行之。 　　五、農民與農企業法人普遍欠缺對相關法令資訊的瞭解，應加強相關人員之專業訓練與宣傳輔導。 　　此外，在研究過程中，發現仍有相關課題有待未來後續研究，以促使農地更有效利用管理，並能確保農業永續發展，建議如下： 　　一、健全農企業法人承受耕地之管理制度。 　　二、建構重要農業區之區分與保護機制。 　　三、進一步研究農業產銷班與農地利用之關聯性。 / For joining WTO and moderating the impact of the import of agricultural products on agricultural lands use and, management and production, our government reacted by revising the Agricultural Development Act (ADA). The ADA has been revised by the Legislative Yuan on January 4 and promulgated by the Presidential Decree on January 26, 2000. The main point of the revision is to emphasis on reasonable farmland uses, effective management and adequate release of the land regulations in the agricultural policy. The main change is to adjust ADA’s principle from “the right to own and use farmland to be limited to the farmer” to “the release of the restriction on farmland transferee and realization of the substantial farmland uses.” The revision does no longer set a limit to the status and qualification of transferees and permits the transferable rights of agribusiness on some certain conditions. It is approved that the revision is to establish a more open and competitive arable land market, to improve the liquidity of arable lands, to facilitate the acquirement of arable lands for agribusiness, and to adjust the agricultural production structure. However, we should review the completeness and realization of the revised ADA after the promulgation in order to assure the agricultural development. 　　Therefore, the main purpose of this thesis is to probe into the change of the agricultural land policy and transfer regulation from the provisions of the revised ADA, examine the exercising of transfer system change and its influence on agricultural operation, investigate the intention of agricultural managers for reviewing the relative debates and issues, and then offer some advice as references of revision in the future. The conclusion is described as follows: 　　1.It is a trend of the times to adjust the transfer system that the right to own and use farmland is limited to the farmer, and the mechanism of assuring the substantial farmland uses should be realized. 　　2.From empirical research, the interviewees almost agree to the new agricultural land transfer system, but think that it is not useful for accelerating the liquidity and promoting the level of agricultural industry. 　　3.It is not significant on introducing agribusiness to be the transferee of arable lands, and it is necessary for our government to integrate too many relative and complicated laws. 　　4.We should review and implement the revised ADA because the rules themselves cannot provide fair incentives and effectively reduce the uncertainty from exercising it. 　　5.Farmers and agribusinesses lack the knowledge of relative laws, so the government should enhance them the professional training and give them consultant service. 　　In addition, from this research, we also found that some issues need to be studied for effective management of agricultural lands and sustainable development of agricultural industry in the future. 　　1.How to sound the management institution when agribusinesses want to be the transferee of arable lands. 　　2.How to designate important agricultural zones and establish protection mechanism. 　　3.Study the correlation between the agricultural product marketing class and agricultural land uses.