Burden Of Proof Research Articles

Patient experiences and perspectives of health service access for carpal tunnel syndrome in Aotearoa New Zealand: a normalisation process theory-informed qualitative study

BackgroundEarly access to care for carpal tunnel syndrome (CTS) can avoid higher rates of surgery and permanent harm yet is often delayed, particularly for populations more likely to underutilise care.ObjectiveWe sought to explore patient experiences and perspectives of health service access for CTS to inform an equity-focussed co-design of a health service for improving early care access.MethodsIn this Normalisation Process Theory (NPT)-informed qualitative study we conducted semistructured in-depth interviews with 19 adults with experience of CTS. Recruitment prioritised New Zealand Māori, Pasifika, low-income, and rural populations. Data were analysed using deductive then inductive thematic analysis.ResultsWe identified five major themes: (1) the ‘Significant Impact of CTS’ of the sense-making and relational work to understand the condition, deciding when to get care, compelling clinicians to provide care, and garnering help from others; (2) ‘Waiting and Paying for Care’– the enacting, relational, and appraising work to avoid long wait times unless paying privately, particularly where quality of care was low, employment relations poor, or injury compensation processes faltered; (3) circumstances of ‘Occupation and CTS Onset’ whereby the burden of proof to relate onset of CT symptoms to occupation created excessive relational and enacting work; (4) the ‘Information Scarcity’ of good information about CTS and the high relational and appraising work associated with using online resources; (5) ‘Negotiating Telehealth Perspectives’ where telehealth was valued if it meant earlier access for all despite the challenges it held for many.ConclusionQuality, culturally and linguistically responsive information and communication from clinicians and health services will improve equitable early access to CTS care including realising the potential of telehealth modes of care. Policy changes that reduce individual burden of proof in injury compensation claims processes, enable time off work to attend health appointments, and increase public funding for surgical resources would improve early access to CTS care particularly for Māori and Pacific populations and those in small and rural workplaces. NPT is valuable for understanding where opportunities lie to reduce inequitable delays to accessing care including the impact of racism, particularly for populations more likely to underutilise care.

Doktrin Res Ipsa Loquitur Pada Perlindungan Konsumen

Economic growth in Indonesia can be encouraged by increasing consumer confidence. In the event of a violation of consumer rights, consumers have the right to claim compensation from business actors, but in fact, consumers and business actors have an unequal position. Consumers have difficulties in terms of civil evidence. An imbalance in the distribution of the burden of proof is an injustice for the disputing parties. The research was conducted using normative juridical research methods and comparative research methods, namely research methods carried out by studying secondary data and library materials and approaches to comparing the laws of one country with the laws of other countries. This research was conducted through library research and field research to enrich the sources. The results of further research are described in descriptive writing that relates the problem to legal theory in evaluating the practices carried out by research objects. There are 2 conclusions from the research results. First, that the position of the re ipsa loquitur doctrine in the principle of proof in consumer protection cases is closely related to the evidence imposed by judges on business actors as parties who have responsibility for the products consumed by consumers as well as those who suffer less losses to provide more justice for consumers. and in line with the principle of proof contained in UUPK and the second conclusion is that the res ipsa loquitur doctrine can be applied in cases of consumer protection if it fulfills the elements that are the requirements of the application of the re ipsa loquitur doctrine.

Employer as an AI System Operator and Tortious Liability for Damage Caused by AI Systems: European and US Perspectives

Abstract The article examines if the standard of protecting parties injured by artificial intelligence (AI) systems used by professional operators is high in the European Union (EU) as compared to the USA—that is, whether the liability model of an operator, as applicable in the EU, ensures that injured parties have effective protection. For the purposes of this article, the term ‘effective protection’ should be understood as referring to a liability model guaranteeing to injured parties a real possibility of obtaining due compensation without the burden of proof that a claimant cannot fulfil. The EU legislature has proposed amendments in the area of non-contractual civil liability of AI system users, which also includes professional operators of such systems. An employer using an AI system for professional or commercial purposes and deriving profits from such use qualifies, in a legal sense, as a professional operator of such a system. Therefore, it is worth considering the question whether the EU, compared to the USA, is really in the vanguard when it comes to drafting legislation tailored to the challenges of AI technology and if the currently proposed legislative amendments ensure effective legal protection to persons injured by AI systems used by a professional operator.

2023년 민사소송법 중요 판례 평석

This paper examines key civil procedure and execution law rulings issued by the Supreme Court in 2023. We analyze seven significant civil procedure precedents, focusing on: 1. Exclusive international jurisdiction agreements, 2. Ratification of objections and compulsory mediation, 3. Lease contract requirements and enforcement, 4. Protection by provisional seizure: Non-existence and cessation of prescription, 5. Causal relationship and burden of proof in medical malpractice, 6. Reconciliation replacement and res judicata in claim objection lawsuits, 7. Preservation of public property and cancellation registration lawsuits. Each precedent is categorized, summarized by facts, rulings of lower courts and the Supreme Court, with analysis of relevant law and the author's perspective. While some rulings involve international private law, civil law, or commercial law aspects, these are addressed only if relevant to civil procedure. The paper also briefly reviews four major rulings on civil execution law: 1. Indirect coercion, incidental obligations, and claim objection, 2. Execution claim seizure after full order service and its effect, 3. Public notice procedure violation and auction effect, 4. Distribution objection and lawsuit succession. Additionally, a section on “Other Civil Procedure Act Precedents” highlights notable rulings due to space constraints. While not exhaustive, this analysis aims to be a valuable resource for future civil procedure research.

보상제도의 선호도 분석을 통한 현행 보험제도의 한계점과 개선방안

This study aims to investigate the relationship and preference regarding satisfaction with the compensation process under the current liability insurance system among 500 car drivers who have experienced automobile accidents in the last five years. It also seeks to identify the limitations of South Korea's current insurance system based on a survey of perceptions towards the system and to propose improvements. Firstly, the attribute of safe driving had a significant negative (-) impact on cost satisfaction within insurance processing satisfaction. Insurance attributes had a significant positive (+) impact on satisfaction with adjudication fairness, cost satisfaction, and procedural satisfaction. However, accident attributes had no significant impact on satisfaction with adjudication fairness, cost satisfaction, or procedural satisfaction. Secondly, the biggest complaint in determining compensation was 'fault determination' (36%), with 'filing complaints against insurance companies' (15.8%) being the most cited method for handling dissatisfaction with traffic accidents, and 'mutual fault processing' (37%) as the main issue with fault determination. Among respondents, 13.6% had experience with litigation due to traffic accidents, 70.8% pointed out equity issues between offenders and victims in handling traffic accidents, and 78.8% indicated problems with fault determination. Therefore, it is expected that the implementation of a no-fault insurance system, which would alleviate the burden of proof of fault from all citizens and allow for rapid compensation without the need for litigation, would increase compensation satisfaction among insurance consumers in the event of traffic accidents. This would also reduce disputes between victims and offenders, thereby enhancing the stability of the insurance system through swift compensation. Additionally, it is anticipated that unnecessary complaints due to fault disputes and the unnecessary costs incurred by victims in hiring loss adjusters or lawyers would decrease.

Peculiarities of compensation for damage caused by the death of a minor

This article is emphasised of compensating for damages resulting from the death of a minor. The loss of a minor is an emotionally devastating event for any family, compounded by the complex legal considerations surrounding compensation for the damages incurred. This abstract delves into the peculiarities of compensation for damages arising from the death of a minor, examining the multifaceted dimensions that legal systems must navigate.
 The author explores the peculiarities surrounding compensation in such cases, shedding light on the legal frameworks, precedents, and challenges that shape the compensation process. In many jurisdictions, the calculation of compensation for the death of a minor involves intricate assessments of both tangible and intangible losses. While quantifiable expenses such as medical bills and funeral costs are relatively straightforward, the valuation of non-economic damages, such as loss of companionship, guidance, and future earnings potential, poses significant challenges. The inherent difficulty in assigning monetary value to these intangible losses underscores the need for nuanced legal frameworks sensitive to the unique circumstances of each case.
 The analysis of scientific literature is covered various aspects, including legal responsibilities, the determination of damages, and the establishment of liability. The determination of liability in cases involving the death of a minor often raises complex questions of causation and responsibility. Legal systems must carefully consider factors such as negligence, wrongful acts, and contributory negligence, weighing the actions of all parties involved to ascertain accountability. In cases where the death results from medical malpractice or accidents, the burden of proof may be particularly onerous, requiring thorough investigation and expert testimony.
 The article is examined potential reforms and policy considerations that may enhance the adequacy and fairness of compensation for the death of a minor. It navigates through the complexities of assigning a monetary value to intangible losses, such as the emotional and psychological suffering endured by the bereaved family. In conclusion, the compensation for damages caused by the death of a minor is a multifaceted issue that demands careful consideration of legal, ethical, and societal factors.

Опыт Германии и Италии введения уголовной ответственности за допинг в спорте

The article analyzes the legislative and law enforcement practice of countries such as Germany and Italy in terms of criminalizing the facts of doping in sports. The aim of the authors is to study the national German and Italian experience as representatives of the Romano-German legal family in terms of improving the mechanisms for combating the use of prohibited means and methods, determining intent and bringing to justice. According to the results of the study, the authors concluded that criminal liability mainly occurs for intentional violation of anti-doping rules, while the burden of proof lies on law enforcement agencies experiencing great difficulties in proving intent, including due to limited knowledge in the field of sports law and training /competition processes.

Insanity Defence Under the Indian Criminal justice System

The "Insanity Defence" within the framework of the Indian Legal System serves as a protective measure for individuals accused of criminal offenses, especially when they lack the mental capacity to understand the nature of their actions or differentiate between right and wrong. This defence aligns with the legal principle “Actus non facit reum nisi mens sit rea,” which emphasizes that for an action to be deemed unlawful, it must be accompanied by a guilty mind. Consequently, punishing individuals who are not accountable for their actions would contravene fundamental human rights enshrined in the Constitution of India. To delve deeper into the concept of the insanity defence, it's essential to trace its origins and development within English law and its subsequent impact on Indian legal statutes. It's crucial to understand that insanity defence isn't merely a matter of suffering from a mental illness; rather, it requires a demonstration that the accused lacked the mental capacity to comprehend the consequences of their actions. Thus, the burden of proof lies with the accused, who must provide compelling evidence to establish their state of insanity, akin to the standard of “preponderance of the evidence” often seen in civil cases. This paper seeks to analyze the intricacies of insanity within the legal framework and how it has evolved into a potential loophole within the current judicial system.

Reverse Evidence System in TPPU and Corruption Criminal Verdict Cases

<p>In the context of criminal law, the burden of proof generally lies with the prosecution. However, in cases of Money Laundering (TPPU) and Corruption, there is a unique phenomenon in the form of a 'reverse evidence system'. This system allows the burden of proof to be shifted to the defendant to prove that the assets or property he owns come from a legitimate source. This phenomenon emerged in response to the difficulty of uncovering the extensive networks and complex methods used by TPPU and corruption perpetrators. Through a literature study, this research explores the origins, legal basis, and implications of applying the reverse evidence system in these cases. The research results show that although this system has advantages in increasing the effectiveness of prosecutions, it also raises controversies related to human rights principles and principles of justice. It is important for legal practitioners to understand the balance between efforts to eradicate crime and protect individual human rights.</p><p>Keywords: Burden of Proof; Corruption; Human Rights; Money Laundering Crime (TPPU); Reverse Evidence System.</p>

Are the Lawyer, the Prosecutor and the Court Subjects of Evidence or Participants in Evidence in Criminal Proceedings?

Relevance. The article examines the issues of participation of a lawyer, prosecutor and court in proving in modern conditions of adversarial proceedings, within the framework of ongoing legal reform. The author comes to the conclusion that the subjects of proof in modern Russian criminal proceedings are only the investigator and the investigator, since they bear the burden of proof. At the same time, the lawyer, the prosecutor and the court are participants in the evidence, whose main task is to examine the evidence collected by the parties. At the same time, the court, being an impartial participant in criminal proceedings, should not take the initiative in collecting evidence and substantiating the accusatory thesis put forward and formulated by the prosecution at the pre-trial stage.Objectives: to continue the consideration of issues arising at the present stage in the theory of evidence in criminal proceedings, and to propose a new gradation of subjects of evidence and participants in evidence, in continuation of the ongoing scientific discussion on the modern development of the theory of evidence in criminal proceedings.The purpose of the study is to identify and discuss problematic issues of the implementation of the mechanism of criminal evidence and propose a new list of subjects of evidence and participants in evidence in criminal proceedings.Methodology. The methodological basis of the research was the universal dialectical method of cognition of socio-legal phenomena, general scientific research methods (analysis and synthesis, deduction and induction, system-structural and others). In addition, private scientific methods of cognition were used - logical–formal and system analysis.The results of the study are distinguished by both theoretical and applied nature with elements of scientific novelty. The author considers the emerging difficulties associated with the practical implementation of the provisions of the issues of evidence in criminal proceedings, proposes a new list of subjects of evidence and participants in evidence, as well as a possible change in the established traditional scientific theory of evidence.Conclusions. The discussion of the identified problems will allow drawing the attention of the scientific community and the legislator to the development of solutions to eliminate the identified gaps in criminal procedural evidence, a more detailed definition of the role of the court, prosecutor and lawyer in criminal proceedings. At the same time, it is suggested that the use of the approach proposed by the author, including the introduction of relevant provisions in criminal procedure legislation, will correct the imbalance in the theory of evidence that exists at the present stage.

Afinal, o que é um argumento?

Este artigo busca discutir o conceito de argumento, alvo de considerável controvérsia no âmbito dos estudos da argumentação. Nosso objetivo central é apresentar uma contribuição a esse debate a partir de uma proposta unificadora e integradora orientada pela seguinte definição: o argumento é uma unidade de fundamentação de uma resposta a uma questão argumentativa. Com base nessa definição, procuramos, então, discorrer sobre as propriedades do fundamentar, propondo que tal processo possa ser delineado a partir de três operações: a operação lógico-inferencial de atribuição de plausibilidade à tese, que articula a noção de argumento à noção de esquema argumentativo em termos de uma relação tipo-instância; a operação retórica de geração de influência, que incorpora a discussão em torno de comprometimentos e acordos ao modo de funcionamento do argumento; e a operação dialética de deslocamento do ônus da prova para o outro, que conecta a realidade racional à interacional e intertextual. Cada uma dessas operações é discutida do ponto de vista teórico e operacional, destacando categorias relevantes de análise para dar conta desse conjunto. A fim de mostrar a produtividade da proposta, agregamos a tal debate a análise ilustrativa de um diálogo concreto entre uma menina de quatro anos e seu responsável, publicado no perfil Fatos de Crianças do então Twitter (hoje, X).

Rethinking compensation in light of the development of AI

ABSTRACT The opacity, autonomy and complexity of AI systems can stand in the way of a fair and efficient allocation of risk and loss. The European Commission (EC) has recognized this and has addressed these matters in two proposals for two directives: the AI Liability Directive and a new Product Liability Directive. Both Directives address information asymmetries between parties in a liability claim by providing new rules on the burden of proof. In addition, the proposed Product Liability Directive has been brought ‘up-to-date’ by explicitly incorporating new technical developments and by ending the debate on software as a product. Nevertheless, the injured party might still not receive compensation for the damage caused by a defective AI-system. This gives rise to the question of whether the legal framework for compensation should be revised more boldly to ensure compensation for the damage suffered by the injured party. This contribution will explore such a bold approach by delving into compensation funds. More specifically, this contribution will examine how a compensation fund for damage caused by AI-systems can be designed as well as what its boundaries could or should be and what its benefits could be.

Burden of Proof or the Principle of Cooperation in Granting Tax Relief? Commentary on the Judgment of the Supreme Administrative Court of the Republic of Poland of 14 September 2022, III FSK 538/22

Abstract The purpose of this commentary on the judgment of the Supreme Administrative Court (SAC) mentioned in the title is to present the relationship between the tax authority and the taxpayer seeking relief from a tax liability. The literature and court rulings, the most recent example of which is the SAC ruling under review, indicate that it is the taxpayer who bears the burden of proving that the prerequisites for granting tax relief are present, namely an important interest of the taxpayer or the public interest. The institution of the burden of proof, characteristic of civil proceedings, should not be transferred to tax proceedings, where it is the statutory duty of the tax authority to clarify all the circumstances of the case. This does not mean that the taxpayer should not point out to the tax authority all the circumstances supporting the granting of relief. However, this does not follow from the fact that the taxpayer, as the applicant, bears the burden (obligation) of proving the existence of the prerequisites. There are and should be no provisions in the Tax Code imposing such an obligation. The taxpayer should submit any evidence justifying the relief in compliance with the principle of cooperation between the taxpayer and the tax authority. This is one of the general principles of tax law found in the literature and court decisions and boils down to the fact that the taxpayer is obliged to cooperate with the authority in charge of the procedure for granting the tax relief requested by the taxpayer. This principle, like many other general principles of tax law, should be inscribed in the current Tax Code, as has long been advocated in the literature.

4A_486/2022, Arrêt du 26 avril 2023 [Double jeopardy and res judicata – Misstated party position in award was not relevant to the outcome – Wrong decision on burden and standard of proof no ground for annulment]

4A_486/2022, Arrêt du 26 avril 2023 [Double jeopardy and res judicata – Misstated party position in award was not relevant to the outcome – Wrong decision on burden and standard of proof no ground for annulment]

Davinci the Dualist: The Mind-Body Divide in Large Language Models and in Human Learners.

A large literature suggests that people are intuitive Dualists-they consider the mind ethereal, distinct from the body. Furthermore, Dualism emerges, in part, via learning (e.g., Barlev & Shtulman, 2021). Human learners, however, are also endowed with innate systems of core knowledge, and recent results suggest that core knowledge begets Dualism (Berent, 2023a; Berent et al., 2022). The resulting question, then, is whether the acquisition of Dualism requires core knowledge, or whether Dualism is learnable from experience alone, via domain-general mechanism. Since human learners are equipped with both systems, the evidence from humans cannot decide this question. Accordingly, here, we probe for a mind-body divide in Davinci-a large language model (LLM) that is devoid of core knowledge. We show that Davinci still leans towards Dualism, and that this bias increases systematically with the learner's inductive potential. Thus, davinci (which forms part of the GPT-3 suite) exhibits mild Dualist tendencies, whereas its descendent, text-davinci-003 (a GPT-3.5 model), shows a stronger bias. It selectively considers thoughts (epistemic states) as disembodied-as unlikely to show up in the body (in the brain). Unlike humans, GPT 3.5 categorically rejected the persistence of the psyche after death. Still, when probed about life, GPT 3.5 showed robust Dualist tendencies. These results demonstrate that the mind-body divide is partly learnable from experience. While results from LLMs cannot fully determine how humans acquire Dualism, they do place a higher burden of proof on nativist theories that trace Dualism to innate core cognition (Berent, 2023a; Berent et al., 2022).

B to C 전자상거래에서 CISG의 2조 적용가능성에 관한 연구

Purpose – As it transforms into a consumer-led e-commerce market, we present the legal applicability of the CISG to disputes arising from international e-commerce. Design/Methodology/Approach – Disputes arising from international e-commerce are mostly about contracts, and considering the principle of internationality of a CISG sales contract and the scope of human application, it can be seen that disputes arising from consumer-led e-commerce can be subject to CISG. Findings – Through case law analysis, a new perspective on the deficiencies of the agreement that occurred in consumer-led international e-commerce was presented, along with the burden of proof, thereby increasing the applicability of CISG in B2C transactions and protecting buyers. Research Implications – Disputes arising from international e-commerce mostly concern contracts. Since e-commerce is related to the form of the contract and includes transactions concluded electronically, CISG is applied in disputes related to the contract of sale by electronic means. Among the provisions of the Convention, the scope of purchase intention should be revised to be applied more broadly by pointing out that the buyer's intention is not limited to one, and the scope of the consumer's purchase intention is narrow through the case law of Article 2a, which causes many disputes in consumer-oriented e-commerce. In addition, if a seller proves that he did not know the buyer's purchase intention, the applicability of the clause may increase, so detailed provisions on the burden of proof of purchase intention should be added.

Burden of Proof: Lessons Learned for Regulators from the Oversight Board’s Implementation Work

Burden of Proof: Lessons Learned for Regulators from the Oversight Board’s Implementation Work

인공지능 활용에 따른 차별에 대한 법적 고찰

As AI has a significant impact on daily life, the economy, and industry, various problems are raised. Among them, special attention should be paid to the problem of unreasonable discrimination. If big data continues to expand and AI technology develops further in the future, and AI is used in all areas of life, the problem of discrimination will become a very serious social problem. As there is a high possibility that the problem of unreasonable discrimination due to the use of AI will surface, legal countermeasures must be carefully considered. So this paper examines legal measures to prevent and respond to the problem of unfair discrimination caused by the use of AI. We briefly summarize the meaning and types of discrimination, examine the causes of discrimination due to the use of AI, the risks of such discrimination, and the necessity and difficulty of legal regulation regarding this, and then based on this discussion, present legal measures to prevent and regulate discrimination.
 There is a high risk that AI will not only reflect the biases inherent in our society, but also strengthen and perpetuate them. On the other hand, due to the opacity and complexity unique to AI, it is difficult to recognize and correct discrimination and resolve disputes. Accordingly, we must recognize the seriousness of the risk that AI will further solidify prejudice and discrimination in our society, and prepare normative response measures that meet the characteristics of such risk.
 First of all, standards for equality and fairness that should be reflected in legal regulations must be established. Reasonable conclusions must be made about the meaning and content of discrimination, the values of non-discrimination and fairness that must be observed, standards for evaluating the legitimacy of discriminatory treatment, and proper indicators. Next, it is important to conduct impact assessment and inspect the risks of AI systems in advance and ensure transparency to prevent unreasonable discrimination. In addition, the entity responsible for unreasonable discrimination that occurs in various contexts must be clearly identified, and procedural rules regarding dispute resolution must be clarified. Basically, it is necessary to hold the user who adopts the AI system accountable and appoint a person responsible for preventing bias. Above this, the fact that AI is being used must be notified to the person being evaluated, and the input and output data of the algorithm must be disclosed afterwards. Also, expansion of public data disclosure and relaxation and transition of the burden of proof for unreasonable discrimination should also be considered.

Activation of the Victim’s Role in Pre-trial Proceedings: Remote Forms of Participation

The article discusses the issues of activating the role of the victim in pre-trial proceedings as part of the implementation of the “minimum standard rules for the treatment of victims of crimes and abuse of power”. Since active participation in the investigation of a criminal case increases the level of satisfaction of the victim with the justice system, it is proposed to expand the relevant procedural possibilities, while not shifting the burden of proof to him. The beginning of the victim’s interaction with law enforcement agencies should be his participation in the inspection of the scene of the incident. The author proposes to provide the victim with the opportunity to participate in this investigative action remotely, using video conferencing. This will not only increase the level of confidence of the victim in law enforcement agencies, but also provide instant feedback between the investigative task force and the victim of the crime, allowing to correctly determine the direction of the ongoing investigation. The article notes that the victim acquires the full range of procedural rights from the moment the relevant decision is made. The author believes that the victim should be able to immediately familiarize himself with this document, as well as receive other information on the criminal case both personally and remotely, using information and communication technologies. It is noted that it is necessary to organize pre-trial proceedings in accordance with the needs of the victim, giving him the opportunity to choose the form of participation (in person or remotely), as well as the use of a personal digital device to participate in investigative actions through video conferencing. It is proposed to amend the legislation allowing the use of household messengers in the production of remote investigative actions, or the creation of an electronic service on the mobile platform of public services for video conferencing with government agencies.

Terminating an Employment Contract at the Employer’s Will: Does Expensive and Simple Mean Safe? Lithuanian Model

Abstract This paper aims to reveal the nature, specifics and limits of application of one of the legal grounds for termination of employment relationships established in the labour law of the Republic of Lithu ania – termination of the employment contract at the employer’s will. The analysis tests the hypothesis that the goal of increasing flexibility by simplifying the termination of employment relations, which was set at the initiation of the reform of the legal regulation, was not achieved. The presumption is put forward that this ground for terminating the employment contract is neither new nor safely applicable, and the benefits of relatively simplified procedural requirements do not outweigh increased financial burden. To reveal the impact of statutory amendments in question on the regulation of termination of employment relations in Lithuania, the historical background and the impact of obligations established in international documents on it are assessed, key indicators (such as legal grounds, procedural requirements, burden of proof and order of its distribution, etc.) are identified, and the relevant case law is examined.