Court Judges Research Articles

Срок на апелляцию: от идеологии к идеологии. Статья № 2. Идеология «советская»: полный отказ от института апелляции (1917–2001 гг.); идеология «постсоветская»: неспешное поэтапное восстановление апелляции (2001–2019 гг.) — обусловили образование массивного пробела в практике выявления процессуальных ошибок, исправлять которые суды вынуждены в наши дни

In this publication, the author continues to review some results of studies on the Appeal Window subject, the basic aspects of which are the following statements: the court judgment appeal window is, firstly, a procedural institution, secondly, a physical value, and thirdly, a psychological, social and philosophical category. The author mentions that the duration of an appeal window depends on a number of objective and subjective factors. This term directly depends on obvious and discreet goals of criminal proceedings, the level of our general and legal culture. Since all present matters are rooted in the past, in the second publication, the author firstly covers the period of our history (1917 to 2001) when the analyzed institution was buried in oblivion. Secondly, the author expresses surprise that the step-by-step recovery (revival) of the appeal has in fact spread over 18 long years (2001 to 2019). Thirdly, it is stated that the mistakes of the past have to be corrected today.

Legal mechanisms and procedures in alleged medical negligence: A review of Indian laws and judgments.

Medical malpractice suits are quite common in developed countries leading to an increase in malpractice insurance. Recent trends indicate that India is at the cusp of a medical malpractice crisis. There has been a rise in medical negligence cases filed against doctors, though often the allegations are frivolous. In such cases, doctors can be considered as the second victim of medical negligence. Members of the medical fraternity do not learn much about law during their training and are often naïve regarding various options available to counter such cases as well as relevant legal doctrines. Doctors thus not only need to remain updated on medical knowledge and skills but also obtain knowledge of legal paradigms. We aim to raise awareness among doctors about handling negligence cases in various forums and share insights through relevant literature, court judgments and government orders. We also map the process of handling complaints, procedures followed in various courts and the different levels of remedies available for doctors.

Article: EU Merger Control After The Grand Chamber’s Judgment In Commission V. CK Telecoms Investments

The Grand Chamber set aside the judgment of the General Court in CK Telecoms having found eight errors in law. This paper dissects the judgment of the Grand Chamber to illustrate and explain the differences between the two judgments as well as the significance of these differences. The Grand Chamber clarifies the standard of proof and confirms that the analysis of unilateral effects in oligopoly markets requires a holistic analysis of a number of factors none of which is decisive. While it ratifies the analytical stance of the Commission this does not necessarily indicate that the Commission will prevail as the appeal is heard again at the General Court. Furthermore, the judgment as well as the new techniques used by the Commission suggest that a review of the Horizontal Merger Guidelines is much needed More generally, the clash between the two courts reveals a fundamental difference between judges in the two courts about the role of EU competition law. EU Merger Regulation, Horizontal Merger Guidelines, unilateral effects, oligopoly, judicial review, telecommunications market, significant impediment of effective competition, standard of proof, competitive constraint, closeness of competition

Taxation of Income from Contract of Borrowing Other's Name: A Brief Analysis of Taipei High Administrative Litigation Division of High Administrative Court Judgment (112) Su Tze No.653

Taxation of Income from Contract of Borrowing Other's Name: A Brief Analysis of Taipei High Administrative Litigation Division of High Administrative Court Judgment (112) Su Tze No.653

Voting Agreements: Analysis of Supreme Court Judgment No. 2482 Tai Shang (2020)

Voting Agreements: Analysis of Supreme Court Judgment No. 2482 Tai Shang (2020)

The Character of Peace in Judges’ Customary Criminal Receptions as Restorative Justice

The idea that restorative justice primarily derives from indigenous communities' beliefs, which have existed for a very long time and have evolved into customary law from generation to generation, gave rise to the term restorative justice in Indonesia. According to Article 5 paragraph (1) of the Judicial Power Law, it is the duty of the judge to investigate, adhere to, and comprehend the legal values and sense of justice that exist in society. The author of this study will examine how judges in courts use restorative justice in the process of interpreting local customary law to avoid conflicts with it. And discover what challenges judges in court face in accepting this customary law. The author's research strategy is normative juridical and is based on primary, secondary, and tertiary legal resources. According to research, district court judges can significantly contribute to the realization of restorative justice in the context of customary criminal law by having a thorough understanding of customary law, employing a mediation approach, enforcing restorative sanctions, offering education and counseling; and placing a high priority on reconciliation. The current national criminal justice system can be viewed as failing to represent the interests of victims. The social background of the judge's origin, the judge's educational background, the judge's ethnicity, and the environment at the time of the hearing are all barriers to judges accepting customary law in their decisions.

변호사법 제31조 제1항 제1호 위반 소송행위의 효력 및 배제방법

When a perseon become a legal counsel in violation of Article 31, Paragraph 1, first Subparagraph of the Attorney-at-Law Act, which stipulates the duty of a lawyer to avoid conflicts of interest, most theories and precedents agrees that if the opponent objects on the vitolation of regulation, litigation actions by the legal counsel should be nulified. The author agree on this view. However, in addition to excluding the effect of such litigation after the actions, there are several procedural issues surrounding litigation in violation of the above provisions of the Attorney-at-Law Act, but there has been no active discussion or precedents presenting legal principles regarding these issues. This was the case in Japan, which has similar Attorney-at-Law Act and Civil procedure Act systems.
 Japan's Supreme Court, through its decision in 2017, for the first time clarified legal principles regarding exclusion methods on litigation that violate the above Attorney-at-Law Act and several procedural issues on the appeal procedures. The other party's objection is not simply a request for the court to exercise its authority, but is a right of application that imposes a duty of response to the court. In case of dissent from the court's judgment, an immediate appeal must be made by analogically applying the provisions regarding judge recusal, and the person who can object is only the party and the counsel cannot be the person with the right to immediate appeal. Although not explicitly stated, it can be seen as an acknowledgment that the court's decision to exclude litigation is based on the method of decision. The discussions in Japan appears to be generally positive on the Supreme Court's rulling.
 The purpose of the above provisions of the Attorney-at-Law Act is to protect the parties, and the issue of whether the lawyer can participate in the lawsuit raised during the pending lawsuit needs to be quickly decided, and considering the fact that both the opponent and the party that trusted and appointed the lawyer need to avoid unforeseen damage, the above judgment of the Supreme Court can be agreed.
 Considering the fact that discussions in Korea and Japan regarding the effectiveness of litigation in violation of the Attorney-at-Law Act were similary developed until the above Supreme Court decision, Japan's precedents and discussions can be used as a sufficient reference in Korea. Not only in Korea but also in Japan, the legal principles regarding issues surrounding litigation violations of the above provisions of the Attorney-at-Law Act are still being formed. We hope that more in-depth discussions will develop by accumulating more precedents on this issue and by actively referring to discussions in Japan and other countries.

TR SANDAH: WITHERING JUDICIAL ACTIVISM

This study discusses the Federal Court judgment in the case of Director of Forest, Sarawak & Anor v. TR Sandah Tabau & Ors and other appeals [2017] 3 CLJ 1. The Federal Court’s decision was said to deviate from an earlier established principle of the common law recognition of existing indigenous peoples’ land rights, the content and extent of which are determined by community customary laws. The common law acknowledgement or recognition of indigenous peoples’ pre-existing rights to their traditional and customary lands held by the Federal Court in Adong bin Kuwau v Kerajaan Negeri Johor [1997] 1 MLJ 418 and Madeli Salleh v. Superintendent of Lands & Surveys & Anor [2005] 3 CLJ 697 complimented the existing safeguards given under the Federal Constitution and statutory laws relevant to Orang Asli in Peninsular Malaysia and the natives of Sabah and Sarawak. Therefore, this study aims to examine whether the Federal Court’s decision in TR Sandah FC reflects judicial conservatism by giving preference to statutory laws passed by the elected officials that resulted in the regression of the recognition of the indigenous peoples’ customary land rights. The method adopted in this study is a qualitative approach via doctrinal legal research. This is a text-based examination of legal texts and other scholarly materials. This shows judges in Malaysia are said to play a more conservative role in the interpretation of legislation. It would be fundamental to highlight the development of the judicial treatment of the indigenous peoples’ land rights in Malaysia and its implications.

Using Bidirectional Encoder Representations from Transformers (BERT) to predict criminal charges and sentences from Taiwanese court judgments.

People unfamiliar with the law may not know what kind of behavior is considered criminal behavior or the lengths of sentences tied to those behaviors. This study used criminal judgments from the district court in Taiwan to predict the type of crime and sentence length that would be determined. This study pioneers using Taiwanese criminal judgments as a dataset and proposes improvements based on Bidirectional Encoder Representations from Transformers (BERT). This study is divided into two parts: criminal charges prediction and sentence prediction. Injury and public endangerment judgments were used as training data to predict sentences. This study also proposes an effective solution to BERT's 512-token limit. The results show that using the BERT model to train Taiwanese criminal judgments is feasible. Accuracy reached 98.95% in predicting criminal charges and 72.37% in predicting the sentence in injury trials, and 80.93% in predicting the sentence in public endangerment trials.

Punishing environmental offenders: court decisions in environmental litigation in Taiwan

ABSTRACT This study investigates court rulings in public environmental pollution litigation, analyzing the factors influencing those decisions. We test an environmental judicial outcome model that considers the offense’s seriousness and the defendants’ resources/capabilities. Using environmental case data from six major cities in Taiwan between 2000 and 2018, we find that 78.2% of defendants were found guilty, 52.9% received probation, 19.0% were fined, and 28.1% faced imprisonment. This pattern differs from Western countries where fines are more prevalent and incarcerations rare. Statistical analyses reveal that the number of environmental offenses the defendant commits influences the court verdict and sentencing decision, defendants from private firms have lower odds of being found guilty but a higher probability of being fined, and the type of legal representation plays a mixed role in court judgments. Over time, there has been an increase in guilty verdicts and stricter punishments for environmental offenders in Taiwan.

Postępowania karne przed wyższymi sądami krajowymi (Oberlandesgericht) w III Rzeszy

This article presents the issue of criminal proceedings before the Highers Regionals Courts of the Third Reich. The institution had its own tradition, as it had already existed prior to Hitler’s rise to power. By virtue of its powers and its territorial scope — the territory of the federal state, during the war the occupied district (Reichsgau) or the province (Provinz) — it was within the range of influence of National Socialist ideology and the totalitarian state. In the initial years of the Third Reich, and especially during the Second World War, the legal system was in constant flux. The author begins with an analysis of case law in which Poles were charged and convicted by the Higher National Court in the given district or province under occupation. Judgments against representatives of other nationalities were also analyzed on a comparative basis. The accusations, trial and sentences submitted by the prosecutor’s office are an obvious example of the lawlessness in the legal system of the Third Reich.
 The timespan of the article is 1933–1945, with special emphasis on the period of the Second World War. In the years leading to the war and during its course, the activities and functioning of the prosecutor’s office and the courts were carried out in accordance with the interests of the Third Reich. The rule of law was effectively abolished at that time. The article is based primarily on materials found in Polish and German archives. Case law of the People’s Tribunal was also put under scrutiny. The surviving file material on the activities of the higher national courts is not complete. The establishment of the People’s Tribunal was an illegal act, carried out in violation of the provisions of the Basic Law, the Constitution then in force. Similarly, the Third Reich subordinated to itself the judiciary, the highest national courts, whose decisions concerning crimes against the state system and its security are proof of an intent to violate the law. Trial proceedings, judgments of the higher national courts against Poles or people of other nationalities accused of crimes that endangered the security of the state, such as high treason or treason against their country, were unlawful. The lack of available trial files on the activities of the higher national courts makes it impossible to make a quantitative assessment or approximate the phenomenon of politically motivated trials. Alongside the institutional reconstruction of the judiciary in the Third Reich, changes were made to the Criminal Code and the Code of Criminal Procedure. Under the guise of protecting the state, the national community, the law became repressive and finally sanctioned lawlessness.

Striking a balance: the interplay of CJEU rulings and international human rights obligation with national constitutional identities

The article examines approaches to the interaction of decisions of the Court of the European Union (CJEU) and international obligations in the field of human rights with the constitutional identity of states. Attention is focused on the concepts of “national identity” and “constitutional identity”, their relationship, and the introduction of the concept of “national identity” into the European legal order after the signing of the Maastricht Treaty (1993). Attention is drawn to the fact that the primary law of the EU does not contain the concept of “constitutional identity”, but this term is widely used in the decisions of the constitutional courts of several EU member states. In these decisions, the constitutional courts raised the issue of the protection of the constitution and constitutionality in the EU member state given the harmonization of legislation and/ or ultra vires decisions.
 The article notes that the concept of constitutional identity is broad, it covers the historical, political, cultural, and legal identity of the state, as well as the connection of national law with the international and autonomous legal order of the EU. The idea of constitutional identity is dynamic and constantly evolving due to the continuous development of the states themselves.
 The analysis of various approaches to this interaction based on the German Federal Constitutional Court, Hungarian Constitutional Court, and Italian Constitutional Court was carried out. It is noted that the interaction of CJEU rulings with constitutional identities is based on the principle of primacy of the EU law, and international human rights obligations are based on the conventional feature of the “obligation of uniform interpretation” and universal standards while ignoring the constitutional tradition of the states. It means that CJEU judgments have a higher legal force than national court judgments, while international human rights obligations should become precedents for subsequent national court judgments, not lowering the national standards of human rights protection.

Czy rozstrzygnięcie Ministra Sprawiedliwości w zakresie zniesienia klauzuli tajności przewidującej objęcie informacji zawartych w oświadczeniu majątkowym sędziego jest decyzją administracyjną?

The article is an analysis of the judgments of administrative courts, which indicate that the power of the Minister of Justice to abolish the secrecy clause providing for information contained in a judge’s asset declaration constitutes an administrative decision. The abolition of the “restricted” secrecy clause in relation to the declaration of assets submitted by a judge cannot be treated as being carried out as part of the administrative supervision of the Minister of Justice over the courts. This is not typical professional pragmatics and the disputed act of the Minister does not concern a matter relating to the judge’s service relationship. The judge’s obligation to submit a declaration of assets is of a public law nature. The Minister’s competence is not a form of exercising by the Minister rights towards a judge resulting from the relationship between a superior and a subordinate, i.e. from the judge’s subordination to the Minister of Justice. Therefore, such a decision may be subject to judicial review due to the constitutionally protected values covered by the Minister’s act.

Canadian Codes of Medical Ethics as a Source of Law

The article discusses the codes of medical ethics which are adopted in Canada. These acts are not ‘classical’ normative-legal acts, since they are adopted not by legislative bodies, but rather by medical associations, and are aimed at providing rules on the professional conduct of physicians and auxiliary medical personnel; occasionally, they also feature the rules concerning the rights and duties of patients. The article’s sources include the codes of medical ethics adopted in Canada, Canadian court judgments, and academic literature.

Interaction Between Gender of Judges and Judicial Decisions: Take the US Supreme Court as an Example

With the rise of feminist movements and calls for equal rights around the globe, people have become concerned about the gender ratio in various fields, including distribution of male and female judges in courts, and has thus led to the question of whether the judges gender influences their judgements. To further explore the question, this essay takes the US Supreme Court as the research object. The paper studies the basic professionalism of judges, judges decisions in famous jurisprudence on womens rights in the history of the U.S. Supreme Court (which often lead into the discussion of whether female judges are influenced by their own gender when making judgemental decisions), as well as relevant statistical data like the ratio of judges that incline to different partisanship at the Supreme Court. By studying the above, the paper has come to the conclusion that gender of the judges do not necessarily influence their judgements.

When migration meets private international law: issues of private international law in divorce actions of Syrian migrants under temporary protection before the Turkish courts

The extended stay of Syrian nationals under temporary protection in Türkiye for more than a decade has caused an increase in their involvement in private law actions before the Turkish courts. Even though their substantive rights have mostly been regulated following their arrival, the private international law legislation has not yet been reviewed. This research, focusing on the most recent judgments of Turkish courts in divorce actions of Syrian migrants identifies important issues of private international law. These include questions on determination of international jurisdiction of Turkish courts, their access to legal aid and the obligation to provide security, questions of applicable law concerning marriage (including the recognition of the marriages validly celebrated in Syria), determination of the law applicable to divorce and the content of Syrian law. The study demonstrates that some of these questions arise because of the ongoing unfamiliarity of Turkish courts with “temporary protection status” as a relatively new concept in Turkish law, whereas others are related to application of general provisions to temporary protection beneficiaries and highlights the urgent need to review the Turkish private international law legislation considering the status of these persons to provide uniformity in court decisions and to ensure predictability.

Prawnokarne ujęcie eutanazji w Austrii – uwagi do orzeczenia austriackiego Trybunału Konstytucyjnego z 11.12.2020 r., G 139/2019

International organisations consistently refuse to take a stand on worldview issues, leaving relevant rulemaking to domestic legislatures. Therefore, it is the state’s privilege and responsibility at the same time to develop legal regulations in this field. Progress in medicine and steadily growing life expectancy have caused the issues of in vitro fertilisation, abortion and euthanasia to be of more import. On 11 December 2020, the Austrian Constitutional Court issued a judgment (in G 139/2019) which may be deemed groundbreaking for the admissibility of euthanasia in Austria. This ruling may also be significant for legal systems in other count ries. Therefore, this paper takes as its subject-matter the aforementioned judgment of the Austrian Constitutional Court. The objective was to analyse it and its legal effects. The research question was formulated as follows: what changes will the judgment of the Austrian Constitutional Court of 11 December 2020 in G 139/2019 bring in Austria’s criminal legal reaction to euthanasia? The article describes the provisions applicable in Austria which penalise crimes against life, presents the historical background of assisted suicide in Austrian law, analyses the ruling of the Austrian Constitutional Court, and draws final conclusions. The most important conclusions arising from the research are that one must continuously review whether the provisions of criminal law concerning crimes against life are adequate to the current reality and that the potential admissibility of euthanasia inextricably involves further changes to the law – the lawmakers would have to specify its legal conditions and regulate the procedure itself.

Visual Judgment: Physiognomy, Law, Medicine, and Art in Sixteenth-Century Venice

Sixteenth-century Venice was a creative lab in which physiognomy was undergoing major transformation. The development of art theory, especially the theory of proportions, as well as a new attention to direct observation, parallel to developments in anatomy, decisively enriched physiognomic knowledge and practice, thus defining more refined criteria for reading the external, bodily “signs of nature in man”—as reads the title of Antonio Pellegrini's 1545 physiognomic dialogue. In this framework, the particularities of criminal physiognomies entered into physiognomists’ scope of interest, and the direct observation, description, and explanation of bodily signs that could reveal an inclination to crime naturally took on a decided importance in physiognomic treatises. This interest in criminals went hand in hand with the special attention that jurists and judges gave to physiognomy. As an aspect of judicial procedure, physiognomy supplied a critical tool that allowed jurists and judges in court to ground their judgment of a defendant's body when assessing the likelihood of whether the accused committed a crime.

The right to know from the opt-out effectiveness system perspective in organ transplantation cases.

Aim: This article examines the legal challenges associated with opt-out and opt-in systems in transplantation cases. It focuses on the low public knowledge and awareness of the national transplantation system, assessing its compliance with international prerequisites for an opt-out system. The analysis centres on the "right to know" perspective and the effectiveness of opt-out in organ transplantation. . Materials and Methods: The research methodology includes scientific principles, public surveys, relevant regulations from the Republic of Latvia and EU, and grey literature on the health system and organ donation in the EU. Scientific articles from databases such as Scopus and WOS were selected based on criteria such as language (English and Latvian) and focus on living wills and comparisons of organ donation systems. Previous EU and national studies, reports, and court judgments were used to analyse data on opt-in and opt-out transplantation systems and policy efficiency in organ transplantation. Conclusions: Individuals' right to autonomy over their bodies extends even after death, encompassing the right to integrity. Organ donation, being a deeply personal choice reflecting one's values and beliefs, plays a crucial role in saving lives through transplantation. To enhance cooperation and donation rates, international regulations stress the significance of public awareness regarding organ and tissue transplantation. Unfortunately, inadequate compliance by authorities and low awareness pose ethical and legal dilemmas, potentially violating constitutional rights. Reports highlight limited public understanding of transplantation systems, raising concerns, particularly in opt-out systems. National governments bear the responsibility of safeguarding these rights and addressing challenges beyond legal means, thus establishing a more ethical organ donation system that upholds voluntariness, generosity, and individual autonomy.

我国公开裁判文书个人信息再处理的裁判困境及建议

我国公开裁判文书个人信息再处理的裁判困境及建议