Court Judges Research Articles

Divergent interpretations of child abuse in legal judgments: perspectives from clinicians and forensic experts

BackgroundChild abuse in Taiwan is a major societal concern that severely affects the well-being of children. Despite the complexity in detecting abuse, reports of child abuse are increasing, evidenced by a rise in cases and heightened awareness. This study utilizes judicial judgments as a lens to understand the varied interpretations of child abuse by clinical and forensic experts and explores the broader epidemiological trends of such abuse within the declining youth population of Taiwan.MethodsWe conducted a retrospective study by analyzing official court judgments on child abuse allegations judged from 2008 to 2022 from the online database of Judicial Yuan. Furthermore, the study analyzed demographic factors, injury patterns, and opinions from various experts.ResultsThe results reveal that severe criminal cases of child abuse predominantly involve biological fathers as the primary offenders and physical abuse as the most common form of maltreatment. Victims are typically aged less than 5 years, which frequently leads to an unfavorable prognosis. Analysis also highlights the TEN-4-FACESp acronym as a highly predictive indicator of child abuse and underscores the prevalence of abusive head trauma (AHT). Moreover, the findings emphasize ongoing disparities in opinions between forensic medical examiners and clinical physicians, especially in AHT cases, which potentially influences judicial decisions.ConclusionsIn summary, the study reveals ongoing disagreements between forensic medical examiners and clinical physicians, especially in cases of AHT, which may impact judicial decisions. Promoting consensus through interdisciplinary collaboration and improved communication can aid in revealing the truth in child abuse cases.

When is ‘the end of the road’ reached? Observing the presumption of parental involvement through systems theory

ABSTRACT In 2014 the Children Act 1989 was amended to include a presuption that involvement of a parent in a child’s life will further the child’s welfare unless there is evidence of the risk of harm. Kaganas published two seminal articles which concluded that the government’s ideological rationale for introducting the presumption of parental involvement not only failed to materialise but had some unintended, possibly detrimental, consequences for mothers. This article examines the operation and effects of the presumption of parental involvement in recent years based on an analysis of private law family court judgments between July 2020 and December 2023. Drawing on Luhmann’s theory of autopoietic social systems, it examines the possibilities for and limitations on using law to drive social change beyond the operations of the legal system itself. It concludes that the statutory presumption has failed to serve its stated purpose and has even had the unintended consequence of generating legal communications about the risks of parental involvement. From a feminist perspective, it concludes that positive changes observed in the family court response to domestic and child abuse are an achievement, in light of the limits on steering society, at least until something changes in the unknowable future.

De-formalization and electronicization of civil proceedings and procedural guarantees of its subjects

Modern civil procedure should, as an example, fully ensure the right to a court for its participants and, at the same time, guarantee obtaining a just and lawful judgment within reasonable time in public proceedings before an impartial and independent court in an effective manner. Not in every case is the overriding goal of obtaining legal protection in the form of a just and lawful judgment easy to achieve. Often, obtaining delayed protection destroys its effectiveness. An unenforceable court judgment becomes merely a "paper" one. A natural obstacle in civil proceedings, which often prevents immediate provision of legal protection to entities seeking it, is the applicable principle of formalism, expressed as a rule in the obligation to comply with the requirements regarding the form, place and time when undertaking activities, failure to comply with which may result in procedural sanctions in a given civil proceeding. The regulations introducing the principle in question are absolute in nature, they are not subject to waiver or modification. The remedy for the stiffening of civil proceedings with the "straitjacket of formalism" is its simplification (de-formalization), either by introducing new types of proceedings, shaped by special regulations differently from the regulations defining the general model of proceedings, or by introducing individual procedural institutions, the use of which in the proceedings will allow for a simpler and at the same time faster search for protection of subjective rights.

The Separation of Powers and Judicial Independence in South Africa: A Theoretical Critique

Section 165(2) of the South African Constitution of 1996 proclaims the independence of the courts. This principle is predicated on the philosophical notion of separation of powers prominently adopted in democratic countries like South Africa (SA). Separation of powers and the behavioural demands on judgeship have produced a general conception that the judiciary is independent; even of politics. This is not the case, politics and judiciary are inseparable since they both seek to achieve the same political objectives. This article adopts Critical Legal Theory (CLT) with historical and philosophical analysis to theoretically repudiate the generalisation. This is a qualitative study and has identified a gap in SA constitutional scholarship regarding interrogating the concept of judicial independence. Resolving this issue the article contends that politics are innate to the judiciary. This reasoning stems from the interrogation of the classical development of the “separation of powers”, and the principle of judicial independence. As a complex phenomenon, judicial independence here is not being explored institutionally and administratively. Rather, it is probed from its conceptual premises. Through court judgments, court activism, and South Africa’s history of constitutional development, the article determines that the judiciary and the law in SA are innate in politics. The intent is to disabuse scholarship from accepting the generalisation of the principle of judicial independence. This is not an anti-constitution critique, but a belief/notion that if adjudicators are not strangled with “judicial independence” general narrative, the courts will expedite the constitutions’ transformative objectives.

Lessons for expert psychiatric witnesses from recent judgments and updated procedural rules

SUMMARY The past 5 years have seen numerous court judgments and changes to rules and procedures that relate to the work of expert psychiatric witnesses in the British Isles. This article outlines these changes, pointing out their implications for the expert witness, and highlights pertinent judgments in over 100 court and tribunal cases.

Problems of enforcement of court decisions on recovery of spousal maintenance abroad: legal and practical obstacles

The article deals with the problems of recognition and enforcement of Ukrainian court decisions on recovery of spousal maintenance in foreign countries. The author emphasises that the current conditions associated with the introduction of martial law in Ukraine have brought new challenges to family legal relations which require further research in order to provide proposals for their solution. The author substantiates that the stay of the payer of spousal maintenance abroad makes the issue of proper fulfilment of his/her obligation particularly relevant in modern conditions. The author examines international conventions relating to the enforcement of the obligation to pay alimony in foreign countries. It is established that despite the existence of the conventions studied, there are difficulties in the enforcement of court decisions. The author examines the peculiarities of recognition and enforcement of a court decision on the recovery of alimony in a foreign country and the problems that may arise for plaintiffs. The author establishes that despite the legal force of a court judgment in Ukraine, it cannot be automatically enforced in a foreign country without prior recognition. Attention is paid to the problem of impossibility of recognition for enforcement of a Ukrainian court judgment in a foreign country in case of improper notification of the defendant of the court proceedings. The author highlights the problem of proper service and notification of the defendant located abroad of the proceedings and the grounds for the claim, which significantly affects the consideration of the case within a reasonable time and further enforcement of the court decision. The author establishes that notification of the defendant of the commencement of litigation in Ukraine depends on cooperation between Ukrainian and foreign authorised bodies, which affects the efficiency of the enforcement of a court decision. The author focuses on the problem of searching for a defendant in a foreign country and the possibility of enforcement of a court decision on recovery of spousal maintenance. Attention is drawn to the problem of enforcement of a court decision on the recovery of spousal maintenance from persons who have been granted refugee status or from persons in need of temporary protection in foreign countries. The author argues that further research should be aimed at finding and solving problems related to the enforcement of national court decisions in foreign countries.

Implications of Islamic Mahr (dower) and African Lobolo (bride-price) on Religious and Customary Marriages and the Rights of Muslim Women to Inherit in South Africa

Abstract The monogamous and polygynous customary marriages of indigenous Black Africans have been fully legally recognised in South Africa since 1998. The outcome of a June 2022 apex Constitutional Court judgment will finally result in monogamous and polygynous Muslim marriages (nikāḥ) being fully legally recognized and regulated by the State by 2024. Since this recognition does not include the Islamic law of succession (which will not pass constitutional muster because of half-share to women), when Muslims die intestate, the secular law is expected to apply. The payment of mahr (dower) by the groom to the bride (an important ingredient of a nikāḥ contract) is therefore an important alternative tool for augmenting the inheritance of Muslim women during their lifetime. A novel fatwā issued by local Black African ulama in August 2022 brought to light several challenges faced by African Muslims regarding the relation of nikāḥ marriages to distinctive African traditional marriage practices like the lobolo (“bride price”) paid by the groom to the bride’s father. This paper examines the implications of mahr and lobolo on religious and customary marriages and the rights of local Black African Muslim women to inherit in terms of religion and custom.

Personal Information of Medical Learners in Canada: A Review of Policies and Expectations

ABSTRACTThis paper explores whether the Canadian medical universities' policies on personal information to protect and provide access meet the expectations of their learners. An overview of the current legislation is presented in the order of federal, provincial/territorial, and university level. This is followed by a process of reviewing a paper published by the Canadian Federation of Medical Students and conducting thematic analysis on pertinent court judgements to understand Canadian medical learners' expectations of personal information handling practices. Through this process, we develop a list of nominal variables that represents learner expectations. For analysis, we conduct descriptive research to review medical universities' policies and utilize a matrix to cross‐check the policies against the list of variables. The resulting matrix presents a visualization that highlights areas where the policies and medical learners' expectations converge and diverge. Our findings indicate that most universities acknowledge the importance of responsibly handling personal information but did not touch on certain variables, such as oversight of third‐party data stewards and information transfer processes within the medical education community. Insights from our findings may contribute to the development of policies and participation from professional regulatory authorities.

과거 양육비청구권의 소멸시효 - 대법원 2024. 7. 18. 자 2018스724 전원합의체 결정 -

Supreme Court Decision 2008su67 on July 29, 2011 held that that a past child support claim was not a property right for the caregiver to exercise that right until it was established as a concrete claim for payment by the agreement of the parties or by a judgment of the Family Court, and therefore there is no scope for the extinctive prescription to run in this regard. However, there were criticism against this precedent. However, the Supreme Court en banc decision 2018su724 on July 18, 2024 overruled the precedent and held that the right to seek payment of past child support for a child between a divorced couple while the child is still a minor does not run due to the nature of the right unless the scope and content of the specific claim are determined by the agreement of the parties or by a judgment of the Family Court, but when the child reaches the age of majority and the parenting obligation ends, the extinctive prescription of the right to seek payment of past child support for the child should be deemed to run from the time the child reaches the age of majority. A concurring opinion of this decision argued that the right of a caregiver to support a minor child alone and then seek reimbursement of the expenses from the other party constitutes a right that is subject to the extinctive prescription even before the agreement or judgment. The dissenting opinion of the five justices argued that the precedent that the statute of limitations had no place to run on past child support claims was valid and should be upheld, and that they could not agree with the view that the statute of limitations runs from the time the child reaches the age of majority. In my opinion, the claim of the past child support should be considered to be subject to the extinctive prescription even before the agreement or judgment. The contrary view asserts that it is an abstract legal status and not a property right, so it is not subject to the extinctive prescription. However, it cannot be said that a right is not subject to the extinctive prescription just because it is abstract. Nor it cannot be said that the family law right be subject to the the extinctive prescription. The most important reason of the majority opinion is that that it would not be in the child's best interest to assume that the the extinctive prescription had run. However, once the law provides for the the extinctive prescription for rights, the application of the the extinctive prescription of such rights should not be denied without special grounds. On the other hand, there is also the problem of logical consistency in the majority opinion. The majority opinion argues that the statute of limitations does not run on past claims for child support against a minor child because they are abstract and indeterminate, but the mere fact that the minor child has reached the age of majority does not make it determinate.

Məhkəmənin hökm və ya qərarlarına yeni açılmış hallar üzrə baxılması üçün əsaslar

This research article conducted the grounds of proceedings on newly found circumstances, which are a type of particular proceedings in the criminal process of the Republic of Azerbaijan. According to newly found circumstances, the review of judgments and decisions of the court, which led to the issuance of a legally binding judgment or decision, and which were present during the investigation and trial of the case, but happens due to discovery of new unknown cases by the person who conducted the investigation or the court on the merits of the case. Chapter 54 of the Criminal Procedure Code of the Republic of Azerbaijan is devoted to the proceedings of newly opened cases. The first article - 461 of that chapter is dedicated to the grounds for considering court judgments or decisions in newly found circumstances. However, the specified article did not establish a legal understanding of the newly found circumstances. In this regard, we would suggest that Article 461 of the Criminal Procedural Code of the Republic of Azerbaijan to be amended regarding proceedings on newly opened cases and that institution to be given the following legal meaning: "Proceedings on newly found circumstances, the legally binding judgment of the court or other cases that make it possible to change any final decision are those cases that were not determined before - neither during the preliminary investigation nor at other stages of the criminal proceedings". Keywords: newly newly found circumstances, judgement, Supreme Court, the right to appeal, new verdicts, cassation instance.

Prawo pacjenta do informacji o stanie zdrowia. Glosa do wyroku Sądu Najwyższego z dnia 24 września 2020 r. IV CSK 49/19

The patient’s right to health information is one of the basic rights of the patient and at the same time is part of the catalog of fundamental civil rights and freedoms. It is a prerequisite for protecting the autonomy of the patient as an individual. At the same time, the right to information is an essential element of the relationship between a medical professional and a patient. The Supreme Court judgment of September 24, 2020, which is the subject of this gloss, concerns a factual situation in which there was a culpable violation of the patient’s right to information. Howe-ver, the violation of the right to information about the patient’s medical condition was an insufficient premise for attributing liability to the defendant hospital for the patient’s death, due to the lack of an adequate causal link between the violation of the patient’s right and the patient’s death, resulting from the development of cancer

Court judgments as law enforcement acts

Court judgments as law enforcement acts

The Influence of “Body Language” on the Assessment of Witness Credibility in Australian Written Court Judgments

ABSTRACT This article examines how “body language” has been used in Australian court judgments when assessing witness credibility, and how it can influence legal proceedings. We first address the use (and misuse) of nonverbal communication. Then, we address the guidelines of the High Court of Australia regarding nonverbal behavior, also known as demeanor within the legal community. The methodology of the doctrinal analysis we conducted and the results are presented. Their implications considering research on nonverbal communication are discussed, and we conclude with a call for legal scholars and practitioners to further address the influence of “body language” in legal proceedings.

Two Supreme Court Judgments on the Fairness of Elections in India

The commentary looks at the two landmark judgements delivered by the Supreme Court in recent months on the electoral process in India which is the lifelines of liberal democracy. The judgements deal with the appointment of CEC and other election commissioners along with the funding of elections. In the Anoop Baranwal case, The Supreme Court has tried to insulate the election commission from control of the government of the day in order to make it a neutral institution. In the Electoral Bond case, the court has tried to create a level playing field among political contestants during the election. But the judgements have not been able to plug all holes in the electoral process as many lacunae remains. The judgements of the Supreme Court will go a long way in ensuring free and fair election in India.

REVIEW OF ASPECTS OF THE TRANSFER PRICING METHOD AT THE COCA-COLA COMPANY RELATED TO THE EMBEDDED ROYALTY ON THE SALE OF CONCENTRATES (CASE STUDY ON UNITED STATES COURT JUDGMENT)

The Australian Tax Office (ATO) imposed withholding tax on what is considered an Embedded Royalty implied in the purchase transaction of Pepsi Australia's concentrate to Pepsi Singapore based on the United States Tax Court Judgment Number 31183-15 where the Internal Revenue Service (IRS), the Tax Authority in America, won the case against The Coca Cola Company by correcting the subsidiary's profit level using a fair price level approach to the profits of other independent bottling companies. The purpose of this study is to examine the court's Judgment can have direct implications for companies that produce Coca-Cola drinks in Indonesia. the research method used is qualitative with a literature study, namely by analyzing books, documents, news articles, national and international journals, and laws that are directly related to the research theme. This research concludes that the purchase of concentrate contains Embedded Royalty which can be subject to Income Tax Article 26 of the Income Tax

ADVOCATES EXEMPTION FROM LIABILITY UNDER CONSUMER PROTECTION ACT: OPENING OF A PANDORA BOX OF EXEMPTIONS?

A two-Judge Bench of Honourable Supreme Court (SC) of India in Bar of Indian Lawyers Through its President Jasbir Singh Malik v. D. K. Gandhi PS National Institute of Communicable Diseases and Anr (2024).[1] held that professional services rendered by advocates fall under “contract of personal service” as opposed to a “contract for service” and accordingly, advocates are exempt from liability for deficiency in services under the Consumer Protection Act (CPA), 2019. The judgement brings the contentious issue of advocate’s liability as ‘service providers’ under the Act back to focus. The case arose out of challenge to a ruling by National Consumer Disputes Redressal Commission (NCDRC) in D.K. Gandhi PS v. M. Mathias (2007) [2]. The NCDRC made advocates liable as service providers under CPA. The apex court, in fact, also went on to opine that the landmark SC ruling by three-judge bench in Indian Medical Association v. V P Shantha (1995)[3] delivered almost 3 decades ago needs reconsideration and referred it to the Chief Justice for determination by a larger bench. This article seeks to uncover the liability of advocates as service providers in light of landmark supreme court judgements and the implications of recent judgement on other professions.

Reconsidering the costs of commitment: Learning and state acceptance of the UN human rights treaties’ individual complaint procedures

AbstractHow do states react to adverse decisions resulting from human rights treaties’ individual complaint procedures? While recent scholarship has shown particular interest in states’ reactions to international court judgments, research on state behavior vis-à-vis an increasing treaty body output remains scarce. I argue that states generally want to avoid the costs implied by adverse decisions, or ‘views’. Rising numbers of rebukes lead them to update their beliefs about the costliness of complaint procedure acceptance in a Bayesian manner. As a result, states become less inclined to accept further petition mechanisms under different human rights treaties. I test these assumptions on an original dataset containing information on individual complaint procedure acceptance and the distribution of 1320 views for a total number of 169 countries ranging from the year 1965 to 2018. Results from Cox proportional hazards regressions suggest that both the number of views against neighboring states and against the examined state itself decrease the likelihood of acceptance of most of the six individual complaint procedures under observation. I also find evidence that this effect is exacerbated if states are more likely to actually bear the costs of implementation. Findings indicate that the omission of further commitment can be a negative spillover of the treaty bodies’ quasi-judicial output.

Judicial control over the observance of human rights and freedoms during the consideration of the prosecution’s motions for permission to conduct covert investigative (search) actions in terms of observance of the principles of the right to a fair trial

The article is devoted to the problematic issues of regulation of judicial control during consideration of applications for permission to conduct covert investigative (detective) actions and use their results for other purposes, in terms of ensuring the right to a fair trial guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The principle of fairness of a trial is interpreted in certain judgments of the European Court of Human Rights as the proper administration of justice, the right of access to justice, equality of parties, adversarial nature of the trial, reasonableness of the trial, etc. The construction of Article 6 of the Convention indicates the existence of the following key elements of the right to judicial protection: 1) the right to a hearing; 2) fairness of the hearing; 3) publicity; 4) reasonable time; 5) hearing by a court established by law; 6) independence and impartiality of the court. The author examines the key issues affecting the objectivity of court decisions in this area, imperfections of the procedures provided for in the criminal procedure legislation in terms of ensuring the fairness of the trial, reasonableness and motivation of the court decision. Special attention is paid to the problems of ensuring the independence and impartiality of the court as a factor that significantly affects the legality of such decisions, and the author suggests ways to improve the effectiveness of judicial control in this area. According to the author the legal regulation provided for by criminal procedure legislation in the area of judicial control over covert investigative (detective) actions, both in terms of consideration of applications for permission to conduct activities related to interference with private life and the use of the information obtained in another criminal proceeding or for another purpose, does not ensure compliance with the guarantees of the right to a fair trial provided for in Article 6 of the European Convention. Along with the need to take effective measures aimed at ensuring the independence of the judiciary and the impartiality of judges, criminal procedure legislation also needs to be improved. In particular, the article suggests that reforms should be aimed at overcoming “formalism” in the course of consideration of applications for permission to conduct covert investigative (detective) actions.

Reconciliation between the Formality of the Will and the True Intention of the Testator: Commentary on the Taiwan High Court's 106th Annual Civil Judgment No. 234

Reconciliation between the Formality of the Will and the True Intention of the Testator: Commentary on the Taiwan High Court's 106th Annual Civil Judgment No. 234

The Burden of Enforcing ECOWAS Court Judgement in Member States: Lessons from The European Court of Justice

The Burden of Enforcing ECOWAS Court Judgement in Member States: Lessons from The European Court of Justice