Appeal Decision Research Articles

‘Not A Sufficient Reason’: LGBTQ asylum seekers in the Russian asylum system

This article provides an analysis of the Russian asylum system with a specific focus on its treatment of LGBTQ asylum seekers. I analysed existing literature on the Russian asylum system and examined asylum decisions from first-instance and second-instance immigration authorities and appeal decisions issued by the Basmanny district court of Moscow and the Moscow city court. While there seems to be no unified approach as to whether LGBTQ asylum seekers constitute a particular social group in the sense of the UN Refugee Convention, there is a consistent trend of refusing international protection to LGBTQ asylum seekers at all levels. The relevant bodies either ignore the systematic persecution LGBTQ persons face in the countries of origin or simply dismiss the arguments put forward by the applicants and conclude that there is no proof of the existence of personal risks in case of return. Such an approach further pushes the applicants into a semi-underground existence.

Examining the Factors That Affect the Loss of Tax Disputes in the Tax Court

Objective - The high tax administration loss rate sparked various speculations in Society. This study aims to determine the factors that led to the defeat of the tax administration in the Indonesian Tax Court. Methodology/Technique – Simple random sampling is used to obtain 1,000 samples of decisions on appeal disputes which is three times the minimum sample size. The logit model is used to find out whether the independent variable affects the dependent variable. The linear probability model is also used to test whether the Logit Model is robust. Findings - The estimation of results shows that the interaction between the tax dispute resolution period and the type of tax, as well as the number of representatives of the tax authorities, had a positive and significant impact on the loss of the tax administration in the prosecution. Novelty - No economic study has comprehensively analyzed the determinants of administrative defeat in the Indonesian Tax Court. This study uses data that have not been used in previous studies. The information includes evidence at audits/objections and appeals, types of taxes, tax dispute resolution periods, interactions between dispute resolution periods and evidence at audits/objections and requests, interactions between dispute resolution periods and types of taxes, interactions between periods dispute resolution, types of taxes and evidence at examination/objection and appeal, initial value, gender of judges, representatives of taxpayers and representatives of tax authorities in court. Type of Paper: Empirical JEL Classification: G18, K41 Keywords: Tax dispute; appeal decision; influencing factors; Tax Authorities defeat; Tax Court Reference to this paper should be referred to as follows: Sari, M.N; Qibthiyyah, R.M. (2022). Examining the Factors That Affect the Loss of Tax Disputes in the Tax Court, Acc. Fin. Review, 7(2), 97 – 112. https://doi.org/10.35609/afr.2022.7.2(3)

An Update on Foreign Trusts under French Tax Law

In this article, the authors explain how trusts are treated under French law by both legislation and the French courts. In particular, the authors focus on the Court of Appeal decision in Clive-Worms (Case No. 19PA00458).

No Free Launch: At-Risk Entry by Generic Drug Firms

After receiving FDA approval, a generic drug manufacturer can launch ‘at risk’ before any patent infringement litigation concludes, but it risks paying damages if it ultimately loses the litigation. A generic can eliminate the risk by waiting to launch until after the appeals process is complete but waiting has downsides too. We examine FDA approvals of generic drug applications with ‘first-filer’ status (which precludes other generics from entering beforehand) to examine empirical patterns of at-risk entry. In our data, litigants usually settled prior to a legal decision. For the remainder, drugs that received FDA approval prior to a favorable district court decision were always launched at risk. Generics without FDA approval before a favorable district court decision launched upon approval unless the approval was close in time to the appeal decision, or it had forfeited the first-filer exclusivity (indicating a low cost of waiting).

Workers before the Court: Conflicts and Labor Justice in the Context of the 1964 Coup d'Etat in Brazil

Workers before the Court: Conflicts and Labor Justice in the Context of the 1964 Coup d'Etat in Brazil

사립학교 교원의 권리구제 효율화 방안

Education is the key responsibility to carry out the state because the achievement of education is the most important factor in determining the future of the country. Therefore, the status of teachers in charge of education should be guaranteed, and the educational activities of teachers should be protected and respected. And if the status and authority of the teacher are violated illegally, the authority must be protected and respected promptly and accurately. Under the current law, if a request for a petition is filed by the Teachers' Appeals Review Committee or if it is dissatisfied with the decision of the petition, the administrative litigation may be filed and remedied by the defendant, and the legal relationship of the private school teachers may be remedied through civil litigation. However, there are cases where the right to dispose of is not able to promptly and accurately remedy the right by neglecting the decision of appeal or filing an administrative lawsuit against the decision. Therefore, in order to secure the effectiveness of the decision of the appeal examination and to expand the right remedy, the objectivity of the appeal examination request should be expanded, the legitimacy of the disposition should be secured, the right of disposition should be prevented from abusing or being neglected, the implementation of the appeal examination decision should be enforced, and further punishment should be applied effectively. In addition, if the compensation through civil litigation becomes an issue, it will be possible to introduce a mediation system to promote rapid and economic rights relief. These teachers' rights relief is not only effective because the law and system are revised and newly introduced. Based on the importance of education, the right to dispose of the disposition should secure procedural and content legality, and in the teacher appeal examination system or litigation, it is necessary to strictly examine the disciplinary disposition or unfavorable disposition to improve the effect of legislation and system.

Novel climate tort? The New Zealand Court of Appeal decision in Smith v Fonterra Co-operative Group Limited and others

In Smith v Fonterra the New Zealand High Court and Court of Appeal struck out all causes of action in proceedings seeking orders that seven New Zealand companies cease direct and indirect greenhouse gas emissions by 2030 grounded in the three distinct claims of negligence, public nuisance and a proposed novel tort referred to as “breach of duty”. The Court of Appeal's judgment is under appeal before the New Zealand Supreme Court. This commentary seeks to open up discussion around the reasons given for the various aspects of the judgment. In particular the commentary puts the view that there is scope for the creation of a novel common law climate tort. This tort must be forward-looking and preventive in orientation and may differ fundamentally from existing torts.

Petitions for review of the European Patent Office (EPO) appeal board decisions by the EPO Enlarged Board of Appeal. Part V: ‘Confidence’ in the European Patent Office (EPO) Petition for Review procedure under Article 112a of the European Patent Convention (EPC)

A patent is a short-term monopoly granted in relation to an invention by (or for) a country to a patentee who may then ask the national courts of the country to order others to stop using the invention.1 They are applied for and, if accepted, are granted, whereafter, in certain jurisdictions, others may oppose their grant. If such an opposition is successful, the patent is revoked. In Europe, since the late 1970s, the dominant patent law has been the European Patent Convention (EPC), a treaty that is administered by an international organization, the European Patent Office (EPO), headquartered in Munich, Germany.2 Belgium, like most European countries, is party to the EPC. It should be noted that the EPC system is not a European Union system. When a European patent application is filed, it is first checked for formalities and, if it passes this test, it is subjected to...

Probability and the Factors That Affect the Loss of Tax Disputes in the Indonesian Tax Court

Tax disputes are disputes that arise due to differences in understanding of the rights and obligations in implementing tax laws and regulations between Taxpayers and Tax administration (DGT) which can be resolved in the appeal process at the Tax Court. According to Aritonang (2020), the legal remedy for filing an appeal against a tax dispute is a further substantive examination of the Tax Assessment Letter issued during the tax audit, and the Objection Decision Letter which is determined in the objection process at the DGT. The practice of tax disputes must be able to describe how the government, in carrying out its duties, upholds the principle of justice to create tax trust in the wider community.Nevertheless, in reality, there are not a few objection decisions that cannot be defended in the Tax Court which results in the defeat of the DGT or the victory for the Taxpayers. From 2011-to 2018, almost every year the percentage of DGT losing is higher than the DGT winning percentage. The highest percentage of DGT's wins occurred in 2017 which was 40 percent, while 2018 was the year where DGT's wins reached the lowest point of 28 percent. The average decision of the Tax Court appeals that won the DGT from 2011-to 2018 was 34 percent. When compared to other countries, the DGT's winning rate over tax disputes is indeed quite low. Indonesia occupies the 32nd position or the 4th lowest position compared to other countries. Both the logit model and the linear probability model (LPM) are used to estimate the data in this study where the dependent variable is a binary variable consisting of 0 and 1 (0 if the decision does not win DGT and 1 if the decision wins DGT). Keywords: Appeal Decision, Influencing Factors, Tax Administration loss

PERAN HAKIM DALAM PENEGAKAN HUKUM LINGKUNGAN HIDUP

As one of the institutions of state power, the court institution has a juridical duty in carrying out the duties of the state, so that the pillars of the state become upright and serve to protect all citizens. One of the pillars of the state is the establishment of justice as a form of sovereignty and authority of the state in the eyes of the international community and for the People of Indonesia as stakeholders or stakeholders in the establishment of Indonesian state law. The juridical task of the court that must be carried out in the holding of the power of the state in the judicial field is to uphold justice on the basis of legal truth. The practice of applying the law by the court must be accountable to the community, so that the court's decision is required to be in accordance with common sense. Institutionally, the decision of the first level court must be able to be accounted for if one of the parties makes a legal effort to the appeals court. Similarly, the appeal rate decision must be accounted for if one of the parties makes a cassation effort to the Supreme Court. The formulation of the issue raised is how the role of judges in environmental law enforcement. Research uses normative juridical juridical. The result found is that judges have a role in the enforcement of environmental law that realizes its protective function for environmental protection and the human right to obtain and use the surrounding natural environment. And the enforcement of sanctions for violators of environmental law must be able to have a special prevensi effect and general prevensi.
 Keywords: Judge, law enforcement, environment

The duty to provide after-care under section 117 of the Mental Health Act 1983 again.

In December 2021 the Court of Appeal (Civil Division) published its ruling in Worcestershire County Council, R (On the Application Of) v Secretary of State for Health and Social Care [2021] EWCA Civ 1957, a case about a dispute between two local authorities regarding which of them should bear the duty to provide after-care for a patient (service user) following her discharge from her second detention under section 3 of the Mental Health Act 1983. The primary issue in the case was where she was ordinarily resident at the time of her second detention under s 3 of the Mental Health Act 1983. This paper reviews the case, surveys the evolution of the duty to provide after-care and comments on specific aspects of the Court of Appeal's decision.

War of the wardrobes: General Court finds registered design lacking individual character on the basis of a disclosed earlier design

Abstract The General Court (‘GC’) has upheld a European Union IP Office (EUIPO) Board of Appeal decision that had found a design for a wardrobe lacking individual character, thus declaring the design invalid under Article 6(1)(b) of the Community Design Regulation 6/2002/EC (‘CDR’).

Closing the Floodgates on Privacy Class Actions: Lloyd v Google LLC

In Lloyd v Google LLC [2021] UKSC 50, the Supreme Court overturned the Court of Appeal's decision, which had allowed a claim under the Data Protection Act 1998 to proceed as a representative action under CPR 19.6. This is significant because the Court of Appeal's decision arguably paved the way for further data protection/privacy claims to be brought as opt‐out ‘class actions’ using this procedure. This case note summarises the Supreme Court decision and assesses its implications for both the procedural law of collective redress and the substantive law of privacy in England. It argues that the Supreme Court's reasoning in relation to both of these areas is sound as a matter of precedent and statutory construction. As a matter of public policy, the decision is likely to re‐enliven debate about the availability of collective redress in English law and whether the existing collective proceedings regime should be broadened.

What happened in there? Confessions, credibility and automatic exclusion: the case of Artt and confession admissibility

Confessions ought to be excluded if it is shown that credibility of the police’s version of events at interview is disputed, and it is found procedural requirements relating to recording of interviews under Police and Criminal Evidence Act 1984 Codes were not observed. This article posits that, where the assessment of what occurred in an interview room depends on the trial judge’s assessment of the accused’s credibility versus the police’s credibility, a breach of the relevant Codes should mean a trial judge should doubt the police’s version of events and prefer the accused’s version of events. This leads to the exclusion of the confession.While giving particular attention to the recent Northern Ireland Court of Appeal decision of R v Kevin Artt, this article suggests a policy that can apply to jurisdictions beyond the Northern Irish jurisdiction, especially where recording of interviews is not routine. Analogies will be made with similar provisions in the United States where appropriate.

Good Citizens with the Wrong Arguments: A critical comment on Sullivan's Social Diversion

Abstract
 In the wake of the Ontario Court of Appeal's decision in R v Sullivan, striking down legislative limits on the extreme intoxication defence in Canada, significant public debate arose about how the intoxication defence applies to sexual assault. Currently, the social debate has focused on implications for individual criminals and victims. This paper will argue the terms of the debate have dodged the larger social issues at the intersection of mental health, addiction, gender, and racial inequity, and poverty. These issues have been sidelined in the social discourse due to the efforts of institutions to divert away from the role they play in the underpinnings of crime and victimization. To affect social diversion, institutions notably leverage harm decisionism rhetoric to uphold existing responsibilization paradigms. Thus, to meaningfully affect social change, the call to action is rather than arguing amongst themselves within the current ideologically driven parameters, activists should deconstruct the discourse to hold institutions accountable for the inequitable social structures they uphold. Analysis of the Sullivan case grounded in social statistics and penal philosophy demonstrates how institutions can covertly pit activists against one another and uphold a socially misinformed status quo. Rather than attack criminals or victims affected by their social circumstance, activists should expose this process of how crime occurs and persists to victimize: institutionally supported responsibilization of disadvantaged groups due to an unwillingness to allocate appropriate resources to address their needs.

Pertimbangan Hakim dalam Penjatuhan Uqubat Jarimah Pelecehan Seksual terhadap Anak di Aceh (Analisis Putusan No 8/Jn/2020/MS.Ttn)

Aceh is one of the provinces that has a high number of cases of sexual violence against women and children. The Syar'iyah Court is a court within the Religious Courts which hears cases related to sexual crimes including sexual harassment, adultery, and rape as regulated in Qanun number 6 of 2014 concerning Jinayat Law. Ideally, the punishment or 'uqubat for child sexual abuse in the jinayat law is at least the same as the child protection law or heavier with the increasing number of cases of sexual abuse of both women and children. This paper was written to find out what things are considered by the Panel of Judges of the Syar'iyah Court on cases of sexual violence against children in Aceh by analyzing decision number 8/JN/2020/MS.Ttn so that it can provide an ideal picture. Jinayat law enforcement image. especially in cases of child sexual abuse. This research is a type of normative research using a case approach, carried out using case studies related to the issues at hand which have become court decisions with permanent legal force, related to the themes discussed which were obtained from primary materials in the form of decisions at the level of The first was tried by the Panel of Judges of the Tapaktuan Syar'iyah Court number 8/JN/2020/MS.Ttn, then the appeal decision of the Aceh Syar'iyah Court Judges number 17/JN/2020/MS.Aceh and the last was the Supreme Court's cassation decision number 11 K/AG/JN/2020. The results of this study need a minimum penalty for sexual abuse against children due to its special handling and has become a serious problem in Indonesia, so that there is no uqubat disparity imposed between the Syar'iyah Courts in Aceh.

The Heathrow Case in the Supreme Court: Climate Change Legislation and Administrative Adjudication

In R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd the UK Supreme Court allowed an appeal against the Court of Appeal's decision that there had been a series of legal errors in the designation of the Airport National Policy Statement. This case note analyses the case from an ‘internal’ doctrinal perspective and argues that the Supreme Court could have engaged more explicitly with the legal issues that arise from climate change legislation for administrative law adjudication. For courts to adjudicate well in such circumstances they need to be prepared to develop administrative law doctrine, particularly in light of the issues of integrating climate change into public decision‐making and of scientific/policy uncertainty which lie in the background of climate change legislation.

Consent to Treatment for Transgender Youth: The Next Chapter – Bell & Anor v The Tavistock and Portman NHS Foundation Trust & Ors

In September 2021, the Court of Appeal reversed the controversial decision of Quincy Bell v Tavistock and Portman NHS Trust in a victory for transgender rights. At first instance, the Divisional Court had set a high legal threshold for transgender children to attain Gillick competence to consent to treatment with puberty blockers – effectively restricting access to treatment for many. On appeal, the Court of Appeal held that children are capable in law of giving valid consent to treatment for gender dysphoria, and court authorisation would not be routinely required before children could access such treatment. This note considers the implications of the Court of Appeal decision for the law on minors and consent to medical treatment in the transgender health context.

The Lost Precedents of Arbitration

Concerns have been expressed that commercial common law is not developing as it should due to disputes being resolved by confidential international commercial arbitration where the majority of awards are not published, and the resultant lack of precedents. This has contributed to questions of the legitimacy of international commercial arbitration and whether the rule of law is being undermined by the non-publication of awards or by the diversion of disputes to arbitration rather than litigation. This article examines the meaning of precedents in this context and the approximate number being ‘lost’ to international commercial arbitration compared to those made in authoritative common law superior courts of record. It suggests that the number of awards of precedential value (APV) is small compared to the volume of commercial judgments of those courts, and that the perceived loss of precedents does not support either publication of awards nor determination of disputes by courts rather than by tribunals. Precedent might instead be enhanced by a wider right of appeal from awards and by publication of the appeal decisions. precedent, precedential value, award publication, arbitration appeals, law development, settlement pressures, litigation vs arbitration, court reporting, Lindley principles, rule of law

Asylum, Borders, and the Politics of Violence: From Suspicion to Cruelty

AbstractCritical scholarship in international relations, border, and migration studies has analyzed the cultures of suspicion that underpin border practices and have increasingly reshaped the politics of asylum globally. They have highlighted either the generalization of suspicion through the securitization of asylum or racialized and gendered continuities of colonial violence. We propose to understand the entanglements of continuity and discontinuity in the politics of asylum through “technologies of cruelty.” To conceptualize technologies of cruelty, we draw on Etienne Balibar's “topographies of cruelty” and Rita Laura Segato's “pedagogies of cruelty.” Empirically, the article argues that technologies of cruelty minimize, erase, undo, splinter, and devalue asylum seekers’ claims for protection in ways that objectify and dehumanize them. Methodologically, the argument is developed through an analysis of a corpus of asylum appeal decisions in the United Kingdom. Asylum appeals are a particularly important archive for the diagnosis of cruelty internationally, as they are both inscriptions of dominant knowledge and contestations over knowledge and claims to protection. They also allow us to trace how the politics of asylum is situated within global topographies of cruelty, shaped by technologies of cruelty and the deactivation of empathy.