Court Judges Research Articles

Taxation on Charitable Trust: Comment on Supreme Administrative Court Judgment No. 227 in 2023

Taxation on Charitable Trust: Comment on Supreme Administrative Court Judgment No. 227 in 2023

Glosa krytyczna do wyroku Wojewódzkiego Sądu Administracyjnego w Warszawie z dnia 11 kwietnia 2023 r. (VII SA/Wa 2467/22)

The commentary concerns the judgment of the Voivodeship Administrative Court in Warsaw of 11 April 2023, in which the Court referred to the interpretation of the concept of a railway area. The Court’s position deviates from the standards of linguistic interpretation and the accepted practice of administrative authorities. Due to its significant relevance to the process of agreements made by the President of the Office of Rail Transport, the discussed judgment is important for the practice of administrative bodies involved in spatial planning and development. The commentary is critical in nature and considers that the Court, by applying inappropriate interpretive tools, deviated from a linguistic interpretation that was unjustified in the context of the previous case law and doctrinal views.

Life experience of tax authorities, i.e. hammer againsttaxpayers or praise of folly

This article is aimed at the critical analysis of the tax authorities’ practise of referring to the life experience whileevaluating evidence. The material for the analysis consists of a few examples of court judgments showing howtax authorities refer to the “life experience”. The analysis shows that such a reasoning can provide for a hammeragainst taxpayers, since many times there is no possibility to enter a reasonable discussion with such a reasoning,hence, any attempt of taxpayer to defend themselves can end in a probatio diabolica. The analysed way ofreasoning can also constitute “praise of folly” since it can lead to adverse consequences for the taxpayers, whopresent exceptional qualities while conducting their affairs.

The EU Divorce Jurisdiction of Brussels IIB Regulation and Its Implementation in Austria

To accommodate the needs of its citizens in building relationships across borders, the EU has provided several regulations. Since its first establishment in 2000, the EU regulations on divorce and legal separation jurisdiction have been amended twice. There are some significant changes in this jurisdiction, from its original regulation in 2000 to its amendment version in 2003 up to the current version that was established in 2019. This paper tries to investigate the implementation of the current ruling EU instrument in Austria through three approaches by evaluating: 1) the infringement cases, 2) preliminary ruling proceedings, and 3) further official actions conducted by Austria. It can be concluded that Austria has never been accused of any infringements of the three regulations. The court judgments of the two proceedings of preliminary ruling submitted by Austrian courts concerning Brussels IIA Regulation are also in accordance with the regulated law of EC No 2201/2003. The establishment of an introductory decree on the summary and legal explanations of the Council Regulation EU No 1111/2019 by Austria is a very good practice that can be adopted by other EU member states. Therefore, this paper suggests that Austria has effectively implemented the 2019 EU instrument.

From Suffering to Sovereignty: The Dimensions of Euthanasia and Right to Die with Dignity

Provided the complex socio-legal fabric of India, the discourse on Euthanasia and the Right to die with dignity provokes profound ethical, legal, and societal questions. Therefore, a need to meticulously examine the varied dimensions of Euthanasia arises. Beginning with the basic understanding of the concept, a comprehensive analysis shall be made in regard to various philosophies associated of renowned political thinkers and philosophers. Additionally, comparative insights from foreign legal frameworks shall be drawn. The research includes judgments passed by the Indian judiciary regarding the legalization of Euthanasia with a clear debate in its context. The High Court Judgement of Gian Kaur v. The State of Punjab (1996) and Supreme Court judgments of Aruna Shanbaug v. Union of India (2011) and Common Cause v. Union of India (2018) proved to be the turning points in Indian legal history and shaped the stance of Indian judiciary on the legislation of Euthanasia. The breakdown of Law Commission reports (2006 & 2008) also finds their mention. Can the freedom to choose a dignified death—the ultimate act of human autonomy—be recognized by the law in a culture that is highly pro-life? If so, there’s a need to structure and strengthen regulations to adopt this choice.

Urban Farming, Planning and Environmental Jurisprudence in Delhi

This article analyses the manner in which bourgeois environmentalism and aspirational urban planning have brought about a recalibration of justice for agrarian communities along the Yamuna in Delhi. Bela Estate, the research site, is one such agrarian community in the urban segment of the Yamuna. Following a ban on the farming of edible crops in this region, pronounced by India’s apex environmental court in 2015, the Delhi Development Authority has conducted multiple demolition drives for nearly a decade now to evict farmers and clear their land for redevelopment. Utilising archival sources and based on a close reading of planning documents and court judgements, this article contributes to discourses of public interest in the wider context of development and law. More specifically, it decodes the ongoing contentions involving farmers, planning agencies and the judiciary in this region as symptomatic of the larger erosion of social justice in an urbanising, aspirational India that undervalues the role of nature-based livelihoods in Indian cities.

Study Against Corruption Punishment of the Village Owned Enterprise Agency (BUMDes) of Berjo Village in Karanganyar District

By closing the case of the village chief who is involved in the corruption of village funds and the allocation of villages funds who have already been accused are subject to the threat of punishment in accordance with Articles 2 and 3 of the Act No. 31 of 1999 as amended by the Law No. 20 of 2001 on the Suppression of Criminal Prosecution of Corruption. How to Juridic Analysis of High Court Judges' Judgment Semarang No. 13/PID.SUS-TPK/2023/PT Smg against the Elements of Justice and Legal Certainty for Corruption Criminal Offenders BUMDes Berjo. The type of research used by the author is normative jurisprudence or library law research or doctrinal law research that can be interpreted as legal research by studying library and secondary materials. The method of approach used in this normative jurisprudence research is the Case Approach to Legislation. The data source used is Decision No. 13/PID.SUS-TPK/2023/PT Smg, No. 31 of 1999 on Combating Corruption Punishment, as amended and supplemented by the Law of the Republic of Indonesia No. 20 of 2001 on Amendments to the Law No. 31, 1999 of the Republik of Indonesia on Combatting Corruptions Punishments. Data Collection Techniques using Libraries and Documents Studies. Data Analysis Techniques with Qualitative Analysis.SUS-TPK/2023/PT SMG violates Article 2 paragraph (1) jo. Article 18 of the Law of the Republic of Indonesia No. 31 of 1999 on the Elimination of Crimes of Corruption, as amended and supplemented by the Law No. 20 of 2001 on the Amendment to the Law on the Supreme Implementation of the Constitution of the Republik of Indonesia Number 31 of 1999, on the Reduction of Criminal Implications of Coruption. Article 55 (1) paragraph 1 of the Code, with the elements of the following article: "Everyone". The element "Fighting the Law". The item "Committing an act of enriching himself or another person or a corporation". Item "Can harm the finances of the state or the economy of the State". The unit "Who commits, who commits and who accompanies the act". (1) That the judge of the High Court of Semarang ruled the corruption criminal case conducted by the village chief Berjo Suyatno bin Kartorejo was in accordance with the norms in force but in the view of the author still leaves a striking disparity dropped to the accused in corruption cases committed by officials or someone who has power. The prosecution against the accused is too light and has not satisfied the sense of justice in the community in particular for the people of the village Berjo Prefecture of Ngargoyoso district of Karanganyar and does not cause the effect of seizure for the defendants who have used the people's money (the community of the Village Berjo prefecture NgarGoyoso District of Karaganyar) for the personal interests of the Accused.(2) That the amount of the replacement money, although in the appellate judgment of the High Court of Semarang is greater than the judgement of the State Court, the penalty of imprisonment against the defendant as a substitute for the unpaid substitute money, is still too light and tends to be preferred to refrain from paying or refusing to refund the size of the compensation money to be paid by the accused and carrying out the criminal sentence in prison in exchange for the unepaid replacement payment money. Thus, it has been backward with the Government Program in an effort to maximize the reimbursement of the State/Region losses as a result of the corruption crime that has occurred.

Supervising Veterinarians as Boundary-Spanning Agents

Boundary-spanning agency is important for weaving together different ways of doing and knowing. This article examines boundary-spanning agency in the context of courtroom contestation of veterinary expertise. Analysing Finnish supreme administrative court judgments, we highlight how knowledge claims about animal welfare and about the process of supervisory inspections are deployed and contested by both veterinarians and animal owners in a bid to set down an authoritative interpretation about empirical actuality at the inspected sites. A central finding is that veterinarians, contrary to the implications of earlier studies, are in a potent position in their supervising role. Given the lack of intermediary soft law mechanisms such as inspection guidelines, the interpretative space left between animal protection law and veterinarians’ inferences about the conditions at the inspected site leaves veterinarians with a wide mandate to make decisions about ending livelihoods and euthanising the inspected animals.

Judicialization of Global Climate Governance: In Defence of the Paris Agreement

Abstract This article questions the effect that the delegation of global climate governance to the international judiciary may have on climate action. It argues that the underlying premise of the judicialization movement—namely, the existence of a broad international consensus as to the objectives of global climate change risk management—is contradicted by evidence, such as political declarations by governments, countries’ nationally determined contributions, and domestic court judgments. Governments brought to court resist propositions that domestic or international legal norms subject them to quantitative emission reduction obligations that can be “objectively” determined on the basis of best available science, and national judiciaries make conflicting findings on the implications of science for climate policy. In this context, renouncement of the “bottom-up” Paris model which was designed specifically to address the complex landscape of diverse interests and risk perceptions across world regions and societies may have a chilling, rather than galvanizing, effect on climate action.

Studying Religion Critically in Universities and Schools

In this article, Wanda Alberts tries to identify the place of the critical Study of Religion in universities and schools, comparing examples for different recent developments in Germany and Britain. One decisive issue in this respect is the question if the critical Study of Religion as a discipline or as (critical) education about Religion is visible at all and if the differences to other, often much better known (often religious) approaches are acknowledged or played down. The discussed examples (a judgement of the German Federal Constitutional Court on the religious limitation of the academic freedom of professors of theology, the BA report on Theology and Religious Studies Provision in UK Higher Education and the report of the Commission on Religious Education) high light some subtleties of a complex field where important facts and distinctions remain concealed to non-specialists. With respect to RE, the article argues that these dynamics fit the concept of “smalli-indoctrination”. Referring to Katharina Frank’s empirical research on the communication of knowledge about religion (Religionskunde) it spells out the important distinctions that need to be made explicit in order to make the characteristics of a critical (secular) approach better known. “If you don’t know the difference between theology and religious studies, then you are a theologian.” (Brian Bocking)

‘A home to dream love into’ – An autoethnographic analysis of mothering with mental illness

This paper examines the links between mothers, mental illness, estrangement from children, and systemic power and control, through a critically creative autoethnographic methodology. A historical and contemporary discursive analysis of two kinds of documentation is made. Firstly, my great-grandmother’s psychiatric hospital records from almost one hundred years ago are analysed, incorporating parts of my own story, as well as the personal account of a family member. These are then contrasted against four Family Court Judgement, where mothers have been found to be incapable of caring for their children. ‘Found poetry’ is then created from the documents presented, to elucidate the argument that a century since my great-grandmother’s forced separation from her children, women with mental illness still face stigma, marginalisation, and hopelessness in the face of outdated, narrow constructions of mothering. Implications for those who work in forensic social work fields are noted in terms of addressing systemic abuses of power against mothers.

MEDIASI YUDISIAL KE DALAM SISTEM PERADILAN PERDATA DI INDONESIA

Judicial mediation is an alternative method of dispute resolution that has been growing rapidly lately. Judicial mediation assigning judges as mediators has many advantages. The success of this mediation is expected to ease the task of the judge because with this mediation it means that the parties to the dispute have contributed to the implementation of the principle of fast, simple and low-cost justice. As for the background of the problem, how effective is the judicial mediation itself in the civil justice system and what are the obstacles during judicial mediation in civil courts. The purpose of writing this thesis is to find out the effectiveness of Judicial Mediation and the obstacles that occur in Civil Courts. 1 of 2002 concerning the Empowerment of Courts of First Instance to Implement Peaceful Institutions. Supreme Court Regulation (PERMA) Number 2 of 2003 concerning Mediation Procedures in Courts. PERMA Number 1 of 2008 concerning Mediation Procedures in Courts. PERMA Number 1 of 2016 concerning mediation procedures in court. The results of the study concluded that the effectiveness of the implementation of Judicial Mediation in Civil Courts is ineffective because of the small peace agreement in the implementation of mediation. This can be seen from the obstacles in reaching a peace agreement in the Judicial Mediation process in Civil Courts which are still low due to the fact that first the parties do not have good faith in mediation, the two mediator judges in court are still few, third the number of impartial advocates or lawyers to reconcile .

Excessive Putative Self-Defense—Comments on No.821 Criminal Judgement (2021) of Tainan Branch of Taiwan High Court and No.91 Criminal Judgement (2002) of Taiwan High Court

Excessive Putative Self-Defense—Comments on No.821 Criminal Judgement (2021) of Tainan Branch of Taiwan High Court and No.91 Criminal Judgement (2002) of Taiwan High Court

Breaking Judgment in European Court of Human Rights on Climate Litigation－A Brief Comment on the Case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland of April 9, 2024

Breaking Judgment in European Court of Human Rights on Climate Litigation－A Brief Comment on the Case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland of April 9, 2024

Вопросы применения медианного значения рыночного интервала в регулировании трансфертных цен

Material changes in the tax regulation of transfer pricing have occurred in the early 2024, such changes include the introduction of the median value of the market price interval (financial parameters). This is a new instrument in the regulation of transfer pricing, its introduction was not justified in the bill discussion period, but its effect is significant for tax obligations of Russian companies. The new instrument in the transfer pricing system creates additional risks for taxpayers, as well as for the state in terms of economic relations with regard to timely and full calculation and payment of taxes, as well as for parties to international economic activities and internal relations. This predetermines the research subject: the conditions of and procedure for applying the median value for the purposes of tax control of intracompany transaction prices. The research methodology is based on an analysis of transfer pricing recommendations of the ОECD in АННОТАЦИИ Налоги № 2-2024 47 АННОТАЦИИ terms of applying statistical tools to determine the price of the transaction under analysis, provisions of foreign regulations that determine the pricing procedure in transactions between related entities. Special attention is paid to an analysis of foreign court judgments on determination of the market price of intracompany transactions. An analysis of the ОECD recommendations has given an opportunity to single out obligatory conditions for the application of the median value. The author has identified a tendency towards harmonization of approaches to using the median value in foreign countries and the general trend to clarifying regulations in 2022-2024. The judicial practice shows that irrespective of the activity type or type of transactions performed by group subdivisions, courts award uniform judgments in terms of applying the median value and take into account the ОECD recommendations when passing a judgment. The paper concludes that Russian taxpayers face an additional tax risk rooted in the differences in the approach towards the application of the median value in the Tax Code of the Russian Federation and the OECD Transfer Pricing Guidelines for transnational corporations and tax administrations used to regulate taxation of transactions between related entities in explanations of tax authorities and the judicial practice. The scientific novelty of the study lies in the determination of tendencies towards applying the median value for transfer pricing purposes, evaluation of tax consequences of the novelty for Russian taxpayers.

Extinction of the Cause for Reduction and Exemption of Land Value Tax and Its Attribution of Responsibilities: An Analysis of High Administrative Litigation Division of Taipei High Administrative Court Judgment (112) Su Tze No. 14

Extinction of the Cause for Reduction and Exemption of Land Value Tax and Its Attribution of Responsibilities: An Analysis of High Administrative Litigation Division of Taipei High Administrative Court Judgment (112) Su Tze No. 14

The Timing for Valuation of Donated Exchange: Listed and OTC-Listed Shares- Comment for Supreme Administrative Court Judgment Shang No.740 (2021)

The Timing for Valuation of Donated Exchange: Listed and OTC-Listed Shares- Comment for Supreme Administrative Court Judgment Shang No.740 (2021)

PRACTICES OF GOOD GOVERNANCE IN NEPAL

This article has mirrored the positive and negative aspects of good governance in Nepal. It has explored both weaknesses and strengths of good governance implications in the system of operation of various organs of the government of Nepal under the new constitution 2015 as envisioned by the legislatures via the Constitution Assembly. Despite the fact that democracy is the precondition of good governance, Nepal, being a democratic nation, lacks a proper functioning form of good governance. Several rules and strategies for good governance are included in Nepal's constitution and other laws. They are, nevertheless, constrained by the black letters of legislation and court judgments. Even Nepal's Supreme Court has issued multiple verdicts on the question of good governance. The division into central, federal, and local governance only can't fulfill Nepal’s good governance needs. But, to manage difficulties within and between municipal, provincial, and federal governments; development projects and governance plans necessitate a sustainable problem-solving mechanism. One cannot deny that Nepal's governance system is still in its early stages of improvisation. However, in the coming days, vital actions will be more important than the provisions guaranteed by the Constitution but never implemented practically.

Translated Memorandum: Expert Witness Statement on the Law of Defamation Against the Monarchy in Foreign Countries

The expert witness statement was requested by the Constitutional Court in the proceedings between Mr. Teerayut Suwankesorn (Petitioner) and Mr. Pita Limjaroenrat, leader of the Move Forward Party (First Respondent) and the Move Forward Party (Second Respondent). The proceedings concluded with Constitutional Court Judgment No. 3/2567. The statement is dated 8 December 2022. Translation by Ronnakorn Bunmee.

LCD International Cartel and Damage Compensation -based on Seoul Central District Court Judgment 2014gahap504385-

LCD International Cartel and Damage Compensation -based on Seoul Central District Court Judgment 2014gahap504385-