Case Judgments Research Articles

Compensatory justice and accountability for First Nations peoples: the Timber Creek case

PurposeThis paper examines the state’s accountability to its citizens, in particular the First Peoples of settler colonial nations such as Australia, and how these responsibilities may be enacted via a process of compensatory justice in Native Title claims. We focus on the landmark Timber Creek ruling and the impacts of racialized preconceptions on the accountability outcomes of the case.Design/methodology/approachThis study draws on critical race theory to reveal embedded racialised perspectives that perpetuate exclusion and discriminatory outcomes. Court documents including hearing transcripts, case judgements, witness statements, appellant and respondent submissions, expert reports and responses from First Nations leaders, form the basis of our analysis.FindingsThe case highlights how the compensation awarded to Native Title holders was based on racialised assumptions that prioritised neoliberal values, commercial activities and reaching a “socially acceptable” judgement over valuing Aboriginal uses of land. A critical analysis of court documents reveals the pervasiveness of presumed “objectivity” in the use of accounting tools to calculate economic value and the accountability implications of a process based on litigation, not negotiation. These findings reveal the hiding places offered by calculative practices that equate neoliberal priorities with accountability and reaffirm the importance of alternative accountings to resist inequitable distributive outcomes.Originality/valueNovel insights, drawing on First Nations peoples’ connections to land and their perspectives on accountability and justice, are offered in this study. Our analysis of Native Title holders’ submissions to the courts alongside historical and anthropological sources leads to the conclusion that compensation decisions regarding Native Title land must be approached from the perspective of Aboriginal landowners if accountable outcomes are to be achieved.

채권자취소권 행사에 따른 원물반환 불능시 구제수단 - 대상판결: 대법원 2024. 2. 15. 선고 2019다238640 판결

This article is about the legal theory that a creditor can receive relief when a beneficiary fails to fulfill the obligation to purchase stocks after a judgment of restitution of the original property that orders the beneficiary to repurchase and return the stocks due to the cancellation of a fraudulent transfer. The court has limitedly recognized compensation for delay in performance (Article 395) and has recognized the claim for substitue in other cases. However, the author reviewed the temporal scope of the res judicata and maintain that the legal theory that recognizes the money judgment (in fraudulent transfer cases) is appropriate when there is a cause that occurred after the prior judgment for the restitution of the original asset. Furthermore, the result of the subject case is derived from the method of restitution of the original property in which the name of the property is directly returned to the debtor. In the method of restitution of the original property, such as in the United States and Germany, where the property in the name of the beneficiary is left as is and executed, the counterparties of compensation in value and execution(returning assets) do not change. I hope that alternatives that can minimize the occurrence of separate impossible circumstances will be discussed in the future legislative process of restoring creditors' cancellation rights.

A Turning Point in the Understanding of the Legal Consequences of the Conclusion of a Preliminary Contract in Latvian Case Law

On 5 July 2023, the Supreme Court (Senate) delivered its judgement in case No. SKC-19/2023, departing from the current case law regarding the legal understanding and legal consequences of a preliminary contract, regulated in Section 1541 of the Civil Law, recognising that both the right to claim conclusion of the main contract and the right to claim compensation for losses could arise from the preliminary contract, as well as providing other important findings, inter alia, regarding the possibility for the claimant to join the claim for conclusion of the main contract in one with the claim for performance of the main contract. This article provides detailed insight into this judgement by the Senate, at the same time referring to the findings made in the current case law and legal literature, as well as pointing to possible future challenges.

No evidence that reversibility affects causal judgments in late-preemption cases

ABSTRACT Recently, Ross and Woodward (2022) argued that the reversibility of an outcome – that is, whether the outcome can be undone – affects causal judgments. One prediction of their account is that reversibility affects causal judgments in late-preemption scenarios, where people typically judge that events that produce the outcome earlier are more causal than preempted alternative events that would have otherwise produced the outcome. Ross and Woodward’s account predicts that when the outcome is reversible, people would judge these events similarly – as in standard overdetermination cases. In three experiments, we found no evidence that reversibility affects causal judgments in late-preemption cases. We discuss how these results affect the experimental philosophy and cognitive science of causation, causal modeling, and experimental jurisprudence.

Will the new definition of a building structure as a subjectof real estate tax put an end to interpretation disputes?

Cascading terminological connections with the provisions of construction law have led to a pathological mechanismof amending the real estate tax without changing the tax act, but through changes to a large group of normativeacts that, prima facie, have nothing to do with taxes. As a result of the Constitutional Tribunal’s judgmentin case SK 14/21, the Ministry of Finance prepared an amendment to the Act on local taxes and fees, which is intendedto cut off connections with the provisions of construction law.

The Final Loss Saga under the EEA Agreement – Comments on the EFTA Court’s Judgment in E-7/23 ExxonMobil Holding Norway

The article discusses the recent European Free Trade Association (EFTA) Court’s judgment in case E-7/23 ExxonMobil Holding Norway AS which is yet another element in the final loss saga initially developed by the Court of Justice of the European Union (ECJ) in the Marks & Spencer case.

Navigating Reversed Valuation Dilemmas: SME Enterprises Nationalized in 1950s Poland - A Case Study

The publication describes a problem that often arises in court cases regarding the valuation of SME forcibly nationalized in the 1950s. Valuation of compensation to previous SME owners is an ongoing court debate in Poland. The authors proposed an approach that took into account the economic conditions at that time and complied with the principle of paying compensation for the actual losses incurred, and not for the potential losses that could be incurred as a result. At the same time, the publication analysed other similar judgments in cases regarding compensation for nationalized enterprises. The practical and scientific value of the publication lies in the fact that it addresses an existing practical problem and its solution. Research Design & Methods: the paper presents a conceptual proposal of the SME valuation method in unique circumstances, complemented by a detailed case study illustrating the application of this valuation approach. Findings: When calculating the compensation for nationalization or other forms of expropriation courts use various methods of valuing net assets (fair market value, book value, recreation value) plus separately determine the value of intangibles, such as licenses, based on the discounted average profits from such assets for a reasonable period of time. If indexation was employed (for historical cost valuation), it used either average interest rates in the economy, the cost of capital of a company, or the cost of lost opportunities for a particular company. Using discounted cash flow valuation for the entire business was uncommon and even if it was included in the bilateral investment treaties (which were meant to protect investors from expropriation) it was considered by the tribunals as speculative and unreliable. Our approach proposes net asset value approach with the use of inflation or average salaries for indexation (to calculate current values of assets) and a combined approach of historical values if they were known at the moment of nationalization and modern estimates of values of remaining assets (that belonged to the company but their value was not provided in the original documentation). Implications & Recommendations: The analysis of historical compensation decisions and bilateral investment treaties suggests that the most popular approach to valuing a loss from expropriation is the fair market value approach and net assets approach with a separate valuation of significant intangible assets provided that they gave certainty of profits for the investor. Contribution & Value Added: The practical and scientific value of the publication lies in the fact that it presents an existing practical problem of court calculation of compensations to owners of forcibly nationalized SMEs in Poland and its solution together with methodological framework that can be used in the future

Definition of Genocide: A Critical Analysis of the Judgment of Extraordinary Chambers in the Courts of Cambodia (Case 002/2)

The Khmer Rouge under the leadership of Pol Pot carried terrifying crimes in Cambodia between 1975 - 1979 against ethnic groups. Official documents of that regime showed the systematic mistreatment and denied of the rights of these peoples as well as their sole existence; these documents later helped the international community to proof committing one of the most outrageous crimes: genocide. In 2018, the Extraordinary Chambers in the Courts of Cambodia (ECCC) issued a historical judgment in Case 002/2 convicting two Khmer Rouge leads for the crime of genocide. The judgment acknowledged two minority groups as the victims of genocide, namely the Vietnamese and the Cham. This paper analysis the judgment of Case 002/2 and the court's understanding of the elements of genocide and the protected groups. On one hand, this judicial ruling is important in recognizing the rights of the victims, and on the other, it represents a judicial precedent in the Far East where the repercussions of the genocide against the Muslim Rohingya minority still exist. With the development of the international case law with regard to genocide, and the experience of previous courts, particularly the ad hoc International Criminal Tribunal for Rwanda and the International Criminal Tribunal for former Yugoslavia, this paper examines the ECCC's contribution to international criminal law and transitional justice. Keywords: elements of the definition of genocide, Khmer Rouge, judge Ottara, separate opinion.

“They will know and fear the law” – Emperor Yongzheng’s Preface in the Great Qing Code of 1740

Abstract The biography of the Yongzheng Emperor by Pei Huang (1974) bears the title “Autocracy at Work” and Mote (2010: 887) calls this Qing dynasty emperor a “secretive, awesome autocrat”. The translation and analysis of the Manchu text of Yongzheng’s sioi/preface to the Great Qing Code reveals the correctness of these statements about this emperor’s type of government. Embedded in statements of truthfulness to the original Chinese legal ideas and an extensive quote ascribed to the Zhou Li, dedications of benevolence of the emperors in their rulings and judgments of cases, filial piety towards the emperors before him and especially his father, Emperor Kangxi, lie obvious and also between the lines statements that the emperor had the last say in every matter of state. He was dedicated to the ruling of the empire, which made him initiate reform and revision of the imperial administration, obviously also including the legal system. This attitude led Yongzheng to prioritize the formal revision of the structure of the Qing legal system and the publication that would later be known as the Daiqing guruni fafuni bithe kooli, the 大清律例 (Da Qing Lüli) – the Great Qing Code (GQC), a continuation of Kangxi’s effort in this regard and completed under Qianlong in 1740. He mentions twice the expectation, that with an effective and just judiciary, and the people being educated in what the laws and regulations are, a betterment of social stability would ensue. In terms of autocracy, the emperor is here the entity which ultimately rules alone, but also bears the responsibility to maintain stability within society by judging, assessing, revising and promulgating what is legal. The upkeep of the cosmic order and hence the dynasty depended on it.

ANÁLISE DA CONDENAÇÃO EXTRA VEL ULTRA PETITUM E SUA APLICABILIDADE NO BRASIL E EM PORTUGAL

The present work deals with the analytical study of the extraneous ultra petitum conviction and its applicability in Brazil and Portugal. This analysis demonstrates great relevance for the academic environment, providing a better understanding of its application in the national territory and on Portuguese soil. His analysis exposes the dynamicity of the application of the theme in the legal order. In this way, it is verified the occasions in which there are the incidence of norms that make possible the application of the extraneous ultra petitum judgment in the concrete case. Thus, under a legalistic aspect will be shown the legal grounds that justify its application in the resolution of a lide in the concrete case. Therefore, it will be aimed to reveal the motivation for the creation or maintenance of norms that protect its application. Finally, we intend to analyze the theme on the historical, legal and social aspect, commenting on its materialization in society and the barriers imposed by several factors that affect all those that litigate in the justice to the labor relation.

Applicability of large language models and generative models for legal case judgement summarization

Applicability of large language models and generative models for legal case judgement summarization

IEM explained

ABSTRACT In this paper I compare my account of IEM to another one, the Simple View, according to which a judgment is IEM just in case its grounds do not include an identity. The Simple View does not say why no identity assumption is needed to ground the singular judgment in the IEM cases; my account is meant to complement it by providing an answer to that question. According to my account, the judgments that are IEM are based on a certain experience, and what they are about is pre-determined by the mode of that experience, by the type of experience it is, in a way that leaves no room for an alternative.

Briefly Noted

On December 19, 2023, the Svea Court of Appeal in Sweden issued its judgment in the above case affirming the conviction and sentencing of Hossein Seyed Ahmadi, an Iranian citizen, for grave breaches of international humanitarian law and murder that took place in Iran in 1988. Specifically, he was charged with having executed prisoners associated with the People's Mojahedin Organization of Iran in the Gohardasht prison. Though the Court of Appeal dismissed the conviction of grave breaches of IHL with regard to some of the prisoners at issue, it found overall that the district court was correct in holding that the prosecutor substantiated the charges levied against Ahmadi. With regard to the murder charge, the Court of Appeal affirmed and noted that it should actually have been considered several acts of murder instead of just one single act. One judge dissented and argued that the defendant should have been found guilty of aiding and abetting murder rather than murder itself. The Court of Appeal also agreed with the district court's assessment that the acts took place in relation to the conflict between Iran and Iraq, thus triggering the application of IHL. Ahmadi's sentence to life in prison stands, and damages have been awarded to surviving plaintiffs and relatives of the deceased prisoners.

Kiedy cnota staje się maską tyranii, czyli jeszcze kilka uwag o rozstrzygnięciu Trybunału Konstytucyjnego w sprawie K 1/20

In its judgment of 22.10.2020 (K 1/20), the Constitutional Court ruled out the possibility of aborting a pregnancy due to the occurrence of a so-called embryopathological premise. It deprived women of the possibility to make an autonomous decision in the case of severe and irreversible disability or incurable disease of the fetus. The paper analyses the Court’s errors in, inter alia, establishing the constitutional status of the nasciturus, conducting the dignity argument or the proportionality test. The authoress shows that the judgment is political and ideological in nature and that the Court refers to the judgment in Case K 26/96 in a selective and manipulative manner. The text to some extent polemics with the theses of P. Łącki and B. Wróblewski presented in the paper on Niekonstytucyjność tzw. aborcji eugenicznej (embriopatologicznej). Schemat argumentacji Trybunału Konstytucyjnego w sprawie K 1/20 (Unconstitutionality of the so-called eugenic (embryopathological) abortion. The pattern of argumentation of the Constitutional Tribunal in Case K 1/20), which came out in the previous issue of the “Przegląd Konstytucyjny” quarterly.

خصوصية القضاء المستعجل

The research focuses on the privacy of summary proceeding, where the research is divided into three sections. The first section discusses the deadlines for summary proceeding, highlighting the dates for considering summary petition claims and its termination dates for issuing judgments in summary cases, also revealing objection deadlines by relying on both civil procedure and commercial courts of law in summary petition. Moreover, the research has examined cases of lapse of summary judgments, mentioning the reasons for the invalidation of the summary request, such as delay in submitting the original request, abandonment of the claim, and considering the judgment as if it did not exist. The researchers also discuss the reasons that entitle the interested party to request the cancellation of the summary judgment, which are determined through various cases, including the dismissal of the claim, the cessation of the urgent situation, and the suspension of the case’s proceedings. Ultimately, the research highlights a judicial ruling stating that if the plaintiff is absent from the court session, the fate of the judgment issued by the judge is the rejection of the claim. Therefore, the plaintiff must attend the trial sessions in order to obtain a judgment that protects their rights expeditiously until the matter is considered by the regular judiciary.

Postoperative Airway Management after Anterior Cervical Spine Surgery: Retrospective Neurosurgical Multicenter Study.

Airway complications that occur after anterior cervical spine surgery pose a life-threatening risk, which encompasses complications including prolonged intubation, unplanned reintubation, and/or necessity of tracheostomy. The present study aimed to identify the surgical risks associated with postoperative airway complications in neurosurgical training institutes. A retrospective, multicenter, observational review of data from 365 patients, who underwent anterior cervical spine surgery between 2018 and 2022, at three such institutes was carried out. Postoperative airway complication was defined as either the need for prolonged intubation on the day of surgery or the need for unplanned reintubation. The perioperative medical information was obtained from their medical records. The average age of the cohort was over 60 years, with males comprising approximately 70%. Almost all surgeries predominantly involved anterior cervical discectomy and fusion or anterior cervical corpectomy and fusion, with most surgeries occurring at the level of C5/6. In total, 363 of 365 patients (99.5%) were extubated immediately after surgery, and the remaining two patients were kept under intubation because of the risk of airway complications. Of the 363 patients who underwent extubation immediately after surgery, two (0.55%) required reintubation because of postoperative airway complications. Patients who experienced airway complications were notably older and exhibited a significantly lower body mass index. The results of this study suggested that older and frailer individuals are at an elevated risk for postoperative airway complications, with immediate postoperative extubation generally being safe but requiring careful judgment in specific cases.

Data-Driven Strategies for Complex System Forecasts: The Role of Textual Big Data and State-Space Transformers in Decision Support

In this research, an innovative state space-based Transformer model is proposed to address the challenges of complex system prediction tasks. By integrating state space theory, the model aims to enhance the capability to capture dynamic changes in complex data, thereby improving the accuracy and robustness of prediction tasks. Extensive experimental validations were conducted on three representative tasks, including legal case judgment, legal case translation, and financial data analysis to assess the performance and application potential of the model. The experimental results demonstrate significant performance improvements of the proposed model over traditional Transformer models and other advanced variants such as Bidirectional Encoder Representation from Transformers (BERT) and Finsformer across all evaluated tasks. Specifically, in the task of legal case judgment, the proposed model exhibited a precision of 0.93, a recall of 0.90, and an accuracy of 0.91, significantly surpassing the traditional Transformer model (with precision of 0.78, recall of 0.73, accuracy of 0.76) and performances of other comparative models. In the task of legal case translation, the precision of the proposed model reached 0.95, with a recall of 0.91 and an accuracy of 0.93, also outperforming other models. Likewise, in the task of financial data analysis, the proposed model also demonstrated excellent performance, with a precision of 0.94, recall of 0.90, and accuracy of 0.92. The state space-based Transformer model proposed not only theoretically expands the research boundaries of deep learning models in complex system prediction but also validates its efficiency and broad application prospects through experiments. These achievements provide new insights and directions for future research and development of deep learning models, especially in tasks requiring the understanding and prediction of complex system dynamics.

Analyzing Appraisal Resources in the Judgment Discourse of Ulysses Copyright Infringement Case

In this economic society, intellectual property protection play an important role in maintaining the national economic order and promoting social development. The infringement of intellectual property will bring great harm to the public and national interests. This study aims to analyze the appraisal resources in the court judgment of Ulysses copyright infringement case, especially from the perspective of attitude and engagement system. By adopting a descriptive and exploratory approach, the study investigates how attitude and engagement resources serve the declaratory and justificatory functions of court judgments. It is found that appreciation and judgement in attitude system are widely used in this court judgment, while affect is seldom applied for it deals with people’s personal feelings. For engagement, disclaim and entertain resources are applied from time to time in processing the judge’s objective fact analysis. It also shows that the court can effectively arrive at judgments with justice when the court professionals have better knowledge and make proper use of the appraisal resources. It is hoped that this study can arouse the awareness of legal professionals to maintain their law-based role of justice in copyright cases by the proper application of appraisal resources in their distinctive language.

Analysis of Paths to Effectively Safeguarding Property Owners Rights in Property Service Disputes from a Defensive Perspective

This paper begins by analyzing the current status of property service disputes, examining the complex legal relationships, widespread and voluminous disputes, and intense group struggles, revealing the true state of property service disputes. The article then focuses on introducing the main types of damage to property owners rights in property service disputes to demonstrate the necessity of safeguarding property owners rights from a defensive perspective. Simultaneously, it presents the concept, types, qualifications for exercising the right of defense, and the statute of limitations, comprehensively analyzing the real challenges faced by property owners in property service disputes, including issues such as the lack of legal provisions, the absence of clear standards for defining property service quality, obstacles to property owners exercising the right of defense due to internal and external factors, and jurisdictional attributes causing inconsistent judgments in similar cases. Finally, the paper proposes measures to improve the system for property owners right of defense and the protection of legitimate rights and interests in property service disputes, including the rational allocation of burden of proof, enhancing legal provisions for standardized discretion, refining the evaluation mechanism for the property service industry, and leveraging the primary role of the property owners committee and the supervisory role of property owners.

Legal Decision-Making in an Adult Rape Case Involving DNA Evidence.

This study investigated how jurors use deoxyribonucleic acid (DNA) evidence in an adult rape trial with a female victim and a male stranger defendant. Community members read a trial summary and then made case judgments (e.g., verdict). Results showed: (a) DNA evidence led to more pro-victim judgments (e.g., more guilty verdicts) than those who did not receive DNA evidence; (b) women were more pro-victim than men; (c) pro-victim judgments indirectly affected the presence of DNA evidence and verdict; and (d) the reason for a guilty verdict when DNA evidence was present typically noted a focus on the victim and DNA evidence.