Court Sentences Research Articles

A Study on the Admissibility of the Acquisitive Prescription of Real Property by the Beneficiary in a Lawsuit for Revocation of Fraudulent Act

대상판결의 사안은 사해행위취소소송에서 수익자인 원고 ( 甲 )가 이 사건 부동산에 대하여 매매를 원인으로 하여 소유권이전등기를 마치고 점유를 개시한 이상 그 이후 사해행위취소소 송에서 패소하여 그 판결이 확정되었다고 하더라도 점유개시시부터 10 년이 경과한 시점에 이 사건 부동산에 관한 원고 ( 甲 ) 의 등기부취득시효가 완성될 수 있는지 여부에 관한 것이다 . 사 해행위취소의 효과에 관하여 대상판결 이전의 통설과 판례는 상대적 무효설의 입장을 취하고 있었다. 채권자와 수익자 또는 전득자 사이에 대한 관계에서만 효력이 발생할 뿐이고 , 채무자 가 직접 권리를 취득하는 것은 아니라는 것이다 . 이러한 상대적 무효설에 관하여 이론적 난점이 제기되었고 , 여러 대안적 학설들이 제시되었다 . 그러나 대상판결은 기존의 상대적 무효설을 확인하여 판시하였다 . 이에 따라 사해행위취소소송의 수익자가 목적 부동산을 여전히 소유하고 있다는 논리가 도출되고 , 다른 한편으로는 수익자인 원고 ( 甲 ) 에게 목적 부동산의 소유가 인정된다면 , 자기 소유 부동산의 취득시효가 인정될 수 있는지 여부가 다시 문제된다고 할 수 있다. 자기 소유 부동산에 대한 취득시효 인정 여부에 관하여 대상판결 이전에는 긍정설과 부정설로 대립되었으며 , 판례의 경우에도 긍정하는 예와 부정하는 예가 공존하고 있었다. 이에 대 한 인정 여부는 시효취득 제도의 존재목적과 구체적 사안에 따라 점유자의 권리보호측면 등을 고려하여 판단해야 한다. 판례의 태도를 자세히 분석하면 구체적 유형에 따라 자기 소유 부동산에 대한 시효취득 인정 여부를 고민하고 있다는 점을 알 수 있다. 대상판결은 부동산에 관하여 적법 유효한 등기를 하여 그 소유권을 취득한 사람이 당해 부동산을 점유하는 경우에는 취득시효의 기초가 되는 점유라고 할 수 없다고 판시하여 등기부취득시효를 부정하였다 . 대상 판결은 이미 학설과 판례에서 확고한 법리라고 할 수 있는 “ 이미 적법 유효한 등기를 마치 고 그 소유권을 취득한 사람이 자기 소유의 부동산을 점유하는 경우 ” 특별한 사정이 없는 한 시효취득을 위한 점유로 인정받을 수 없다는 점을 명확히 하고 있다 .This study analyzed Supreme Court Sentence 2013-da-206313 on the 25th of November 2016, which determined whether to recognize obligee s right of revocation of fraudulent and acquisitive prescription of personal real estate ownership. In the case of the aforementioned sentence, the beneficiary(plaintiff) has finished registration of ownership transfer caused by real estate sale and occupied said real estate, before he lost a lawsuit for revocation filed by the defendant(creditor). And the case related to whether to respect the long-term occupation and registration of the real estate in question by the plaintiff and, thereby, recognize the acquisition of ownership by the plaintiff based on register acquisitive prescription of personal real estate ownership. The Supreme Court gave the following verdict on the aforementioned case: Validity of the effect of the revoking of a fraudulent act relies on relative invalid theory that exists only between the creditor(defendant) and beneficiary(plaintiff). Therefore, even if a fraudulent act is revoked, the real estate in question still belongs to the beneficiary(plaintiff). And, to recognize register acquisitive prescription of the beneficiary(plaintiff), it is necessary to recognize acquisitive prescription of the personal real estate ownership. However, register acquisitive prescription cannot be recognized for someone who has obtained legal and valid registration of said real estate. This study reviewed and analyzed a precedent relating to ownership of real estate subjected to a lawsuit for revocation and the admissibility of acquisitive prescription for real estate ownership. The aforementioned sentence was highly reasonable in that it not only based its verdict on relative invalid theory, which is consistent with the intent of the revoking of a fraudulent act, but it also determined recognition of acquisitive prescription of personal real estate ownership based on specific validity.

Nonphysical Violence in Criminal Law: Definition and Signs

The article is devoted to researchof criminal law and other branches of law problems related toregulation of certain types of violence. Current definition «mental violence», «psychological violence»and others do not have a single content and are not explained in the current legislation. The urgencyof the issue is also due to the fact that according to statistics the share of violent crimes is traditionallyhigh, even considering their latency.The authors determined the aim of the study as development ofdefinition of certain types of violence oriented on further implementation into the criminal legislation.During the research the dialectical method of cognition was as methodological basis. Were usedsuch methods as comparative legal method, formal legal method, and method of content analysis,which contributed to the realization of scientific interest. The article presents a study of foreignexperience of regulation of this institution in such countries as Great Britain, Canada, Israel andothers. The positions of authoritative figures of science are analyzed, and that allowed to reflect theiradvantages, shortcomings and an absence of any general approach to determining the content ofthe phenomenon under exploration. Two main scholars positions have been singled out, accordingto which the definition “psychic violence” is revealed depending on the object of encroachmentor on the method of encroachment. The study of judicial and investigative practice also revealedproblems of application of norms, related to certain types of violence. In the sentences of courts,the term “mental violence” is used, but in a different semantic meaning. On the basis of analysis theauthors concluded that current definitions do not correspond to the nature and essence of certaintypes of violence. Thereby the authors offer a completely new definition - «Nonphysical violence».The advantage of the definition is that it meets the requirements of legal technique as well as thecoverage of all criminal law values of this type. Besides, conclusions of the article include the contentof signs of nonphysical violence (object of infringement, ways of infringement, violent character,intent character and wrongfulness), and formulation of recommendations for the further use of thedefinition

Court Sentences

Court Sentences

Parenting Styles, Prosocial, and Aggressive Behavior: The Role of Emotions in Offender and Non-offender Adolescents.

The aim is to analyse the parenting styles effects (acceptance, negative control and negligence) on prosociality and aggressive behavior in adolescents through the mediator variables empathy and emotional instability, and also, if this model fits to the same extent when we study adolescents institutionalized due to problems with the law and adolescents from the general population, and at the same time, if the values of the different analyzed variables are similar in both groups of adolescents. We carried out a cross-sectional study. 220 participants from schools in the metropolitan area of Valencia took part in the study. Also, 220 young offenders took part recruited from four Youth Detention Centres of Valencia, in which they were carrying out court sentences. The age of the subjects range from 15-18 years. The results indicate that the emotional variables act as mediators in general, in the non-offender adolescents, but it has been observed, in the offender adolescents, a direct effect of support on aggressive behavior in a negative way and on prosociality in a positive way; and of negligence on aggressive behavior and of permissiveness on prosociality in a negative way.

Suma pieniężna jako środek dyscyplinujący w postępowaniu sądowo-administracyjnym

Kontrola jest niezbędnym elementem każdego procesu administrowania. Sądowa kontrola administracji jest w obowiązującym systemie prawa podstawowym instrumentem zagwa­rantowania legalności działania organów administracji. Dlatego też kluczową rolę należy przypisać wykonalności orzeczeń sądów administracyjnych. Z tego też powodu sądy te zostały wyposażone w możliwość stosowania środków dyscyplinującego oddziaływania. Współcześnie obok typowych środków o charakterze represyjnym ustawodawca wprowadza instrumenty o charakterze prewencyjnym. Katalog środków dyscyplinujących ulega ciągłemu rozszerzeniu. Nowym rozwiązaniem prawnym jest ustanowiony w 2015 r. dodatkowy środek o charakterze dyscyplinująco-represyjnym, polegający na przyznaniu sumy pieniężnej od organu na rzecz skarżącego.

Physiognomy: Personality traits prediction by learning

Evaluating individuals’ personality traits and intelligence from their faces plays a crucial role in interpersonal relationship and important social events such as elections and court sentences. To assess the possible correlations between personality traits (also measured intelligence) and face images, we first construct a dataset consisting of face photographs, personality measurements, and intelligence measurements. Then, we build an end-to-end convolutional neural network for prediction of personality traits and intelligence to investigate whether self-reported personality traits and intelligence can be predicted reliably from a face image. To our knowledge, it is the first work where deep learning is applied to this problem. Experimental results show the following three points: 1) “Rule-consciousness” and “Tension” can be reliably predicted from face images. 2) It is difficult, if not impossible, to predict intelligence from face images, a finding in accord with previous studies. 3) Convolutional neural network (CNN) features outperform traditional handcrafted features in predicting traits.

Juveniles on Trial: Mode of Conviction and the Adult Court Sentencing of Transferred Juveniles

Several studies have compared the criminal court sentences given to transferred juveniles with those given to adults, but this research has reported inconsistent findings. In addition, some research has found that mode of conviction can interact with offenders’ characteristics, resulting in stronger or weaker effects of these factors among defendants convicted at trials. The current study explores the direct effects of juvenile status on sentence severity and whether these effects are conditioned by mode of conviction. Examination of data from Florida circuit courts ( N = 1,107,233) shows that transferred juveniles are less likely to be incarcerated than adults but are given longer incarceration sentences. Interaction analyses reveal that these disparities are weaker among trial cases than among plea cases.

Location and Sentencing: To What Extent Do Contextual Factors Explain Between Court Disparities?

This article investigates the presence of unwarranted between court disparities in England and Wales, examining whether they can be explained by non-legal contextual factors such as the organisation of the court and socio-economic composition of the area. In contrast with previous literature, we emphasise the importance of controlling for a wide range of legally relevant case characteristics. The findings reveal that some preliminary startling trends, such as more severe sentencing in courts located in neighbourhoods with high proportions of Muslim residents, are in fact accounted for by differences in the cases reviewed across courts. These findings call into question the validity of previous studies exploring the influence of the context on sentencing that did not adequately control for legal factors.

The Judicial Approaches of States’ Executive Immunity and Some Examples of Its

Executive immunity means that the criminal court sentence (decision) against a natural person as representative of foreign government resident, is no longer applicable in the another country. This type of immunity other than that in terms of government power in run is faced with different approaches is accepted by public and philosophy of its existence is good performance of diplomatic missions and compliance with the general principle of the sovereignty of states, based on which no government should be tried by another state or another state’s laws applied to him. The most important judicial approaches include the approach based on pure state immunity and its property, the approach based on accepting limit of executive immunity of foreign government, assimilation -based approach of competency and execution stages. By examining judgmental procedure of juridical courts of countries such as Turkey, Italy, Switzerland, Belgium and Iran, we conclude that most of the juridical immunity of states has been respected and immunity isn’t limited to acts of state and does not include the tenure acts and immunity is not related to business operations. In some cases, a double dealing with the issue of immunity from government and independent international organizations is seen.

Jail Calls: What Do Kids Have to Do with It?

For many domestic violence victims, witness tampering continues throughout an abuser’s detention while awaiting court appearance and sentencing, often via phone calls made from jail. A common question we are asked when leading an investigation and providing expert testimony is how abusers involve their children (directly or indirectly) during jail calls. In this commentary, we use three case examples to illustrate how abusers involve their children (directly or indirectly) to further manipulate and tamper with their victim. As the three case examples illustrate, domestic abusers tend to use similar strategies with children during the jail calls as they do with their primary victim (e.g., minimizing the abuse, calling up images of a broken family due to impending charges and sentencing), and tend to triangulate their children against the victim.

Study of financial compensation in rulings against obstetricians and gynaecologists in Spain (1987–2013)

IntroductionMalpractice payouts occupy an important place in Obstetrics and Gynaecology. We analysed a long period (1987–2013) of court sentences focusing on compensation amount and the way compensation has changed. In Spain there are not many economic analyses on Obstetrics and Gynaecology, specifically on the main adverse events that lead to catastrophic payouts. Material and methodsA retrospective analysis of a legal database on court sentences in civil and administrative litigation against obstetricians and gynaecologists during the study period was performed. The adverse event under examination, the year of the ruling, and the payouts for malpractice were the variables analysed. Statistical analysis was performed using SPSS Statistics 19.0, F-distribution and normal distribution tables as well as the Student's t-test to compare differences between groups. ResultsWe recovered 431 cases, 244 of which resulted in a conviction (56.6%). Obstetrics involved the highest payouts (p=0.01) and a 57.5% chance of being convicted. The accusations with the highest payouts involved foetal death or foetal injury, which were the most common cause of payouts exceeding €300,000. Overall, 78.7% (193) of convictions involved a payout below €300,000 and the mean, median and maximum payouts increased steadily during the study period. ConclusionsObstetric claims and foetal-related injury involve the highest payouts, with an increasing trend. Catastrophic payouts are common.

Prosocial reasoning and emotions in young offenders and non-offenders

The aim of this study was to analyse the cognitive processes (prosocial moral reasoning, perspective taking) and emotional processes (empathic concern, emotional instability, state-trait anger) which interact in predicting aggressive behaviour and prosocial behaviour of adolescents who have committed a crime and those who have not, for the purpose of establishing the predictor variables in both groups. Participants were 440 adolescents, 220 of them young offenders residing in four youth detention centres in Valencia, in which they were serving court sentences (67.3% men and 32.7% women). The other 220 were enrolled in public and private schools within the metropolitan area of Valencia (65.9% men and 34.1% women). The two subsamples were equated in age (15-18 years) and sex, controlling the representation of social classes. Prosocial moral reasoning, empathy, emotional instability, state-trait anger, prosocial behaviour, and physical and verbal aggression were assessed. Hierarchical regression analyses show the differential weight of positive emotions (empathic concern) and negative emotions (emotional instability and anger) in relation to prosocial moral reasoning in predicting aggressive behaviour in adolescents, especially offenders. The results are discussed in terms of their implications for prevention and re-education oriented to social reinsertion of young offenders.

Intoxication and Assault: An Analysis of Crown Court Sentencing Practices in England and Wales

Little is known about how the Sentencing Council’s guidance to treat intoxication as aggravation is applied in practice. With reference to assault offences, this study examines: whether intoxication has an aggravating effect; whether this is moderated through other characteristics of the case; and whether any effect is consistent across Crown Court locations. The probability of custody and sentence severity are modelled using (ordered) logit multilevel models and data from the Crown Court Sentencing Survey. The probability of receiving a custodial or severe sentence when intoxication features is increased, however, is moderated if the offence is deemed an isolated incident. Effects are relatively consistent across Crown Court locations, however ongoing monitoring of how intoxication shapes sentencing practice it is encouraged.

Estimating the Value of Absolute Power: Evidence from Judiciary Decision Events on Controlling Shareholders in Large Business Groups

This paper estimates the impact of judicial decisions, mainly the prosecution and court sentencing of controlling shareholders’ corporate crime, embezzlement, and breach of fiduciary duty, on the market value of a firm. The indictment or imprisonment of controlling shareholders in Korean large business groups, chaebols, provides an experimental setting for analyzing the absence of the real boss. Our main findings are as follows. First, judicial decisions relating to controlling shareholders generally do not have a significant group-wide effect on the value of a firm. Second, the portion of firms that receive a positive impact and a negative impact from having a controlling shareholder held in custody is almost equivalent (46% versus 54%, respectively). In situations where there is a court appeal, the portion of firms that receive a positive impact decreases to 38%, while the portion of firms that receive a negative impact increases to 62%. Third, the effect of court decisions on affiliated firms within the same business group is asymmetric. For instance, such decisions have a positive effect on affiliates where a controlling shareholder holds a large proportion of the shares; however, they have a negative impact on affiliates thought to be more likely to grow at faster rates in the future. For this reason, sentencing of the controlling shareholder itself induces value transference between the different affiliated firms in a given company group.

Possibility of a Non-State Actor to Establish Courts, Issue Sentence and Avoid Criminal Responsibility for Acts that Otherwise Would Constitute War Crimes

This paper is drafted pursuant to the following overarching question: what are the legal conditions for a non-state actor to establish courts in territories not fully controlled by a state during a non-international armed conflict? Have such courts existed and been recognized in earlier conflicts and how? The starting point is that non-state actors cannot set up courts and carry out sentences of such courts with the effect that they can avoid criminal responsibility for acts that otherwise would amount to war crimes. However, there may be circumstances where courts on rebel controlled territories appear necessary and in certain situations argue against that a certain act is a war crime. One may conceive two such situations. First, in situations where judges and state officials appointed before the outbreak of the armed conflict continues or resumes their duties to uphold pre-existing law on territory controlled by a non-state actor; second, when a non-state actor upholds discipline among its own armed forces. There is a need to distinguish these two situations from cases where a non-state actor introduces or amends laws which significantly deviates in a more severe direction compared to the laws existing before the outbreak of the armed conflict. Thus, in the latter cases a non-state actor and individuals associated with such an actor may not use a conviction by a court as a ground for excluding criminal responsibility.

Estudio de las compensaciones económicas sobre sentencias contra obstetras y ginecólogos en España (1987-2013)

IntroductionMalpractice payouts occupy an important place in Obstetrics and Gynaecology. We analysed a long period (1987–2013) of court sentences focusing on compensation amount and the way compensation has changed. In Spain there are not many economic analyses on Obstetrics and Gynaecology, specifically on the main adverse events that lead to catastrophic payouts. Material and methodsA retrospective analysis of a legal database on court sentences in civil and administrative litigation against obstetricians and gynaecologists during the study period was performed. The adverse event under examination, the year of the ruling, and the payouts for malpractice were the variables analysed. Statistical analysis was performed using SPSS Statistics 19.0, F-distribution and normal distribution tables as well as the Student's t-test to compare differences between groups. ResultsWe recovered 431 cases, 244 of which resulted in a conviction (56.6%). Obstetrics involved the highest payouts (p=0.01) and a 57.5% chance of being convicted. The accusations with the highest payouts involved fetal death or fetal injury, which were the most common cause of payouts exceeding €300,000. Overall, 78.7% (193) of convictions involved a payout below €300,000 and the mean, median and maximum payouts increased steadily during the study period. ConclusionsObstetric claims and fetal-related injury involve the highest payouts, with an increasing trend. Catastrophic payouts are common.

Wrongful Convictions: A Comparative Perspective

Wrongful conviction becomes a social problem when innocence consciousness arises, meaning that a significant number of people view miscarriages of justice as caused by correctible systemic factors, and not as inevitable failures of courts. The term “wrongful conviction” encompasses procedurally flawed court convictions and the convictions of factually innocent defendants (i.e., false convictions). There is no definitive way to measure the incidence of false convictions, but American experts estimate plausible rates of from 1 to 3 percent, which translates to tens of thousands falsely convicted each year. Three case studies — the United States, England, and China — demonstrate that innocence consciousness occurred at different times, subject to different social stimuli, leading to different citizen and governmental responses in each country. Wrongful convictions are now viewed as a social problem globally. Wrongful conviction research, conducted mostly by psychologists and lawyers, would benefit from studies by social scientists.

An Exploration of the Variables Predicting the Outcome of Murder and Rape Appeals Against Conviction in the England and Wales Court of Appeal (Criminal Division).

An Exploration of the Variables Predicting the Outcome of Murder and Rape Appeals Against Conviction in the England and Wales Court of Appeal (Criminal Division).

Special Camp Courts in the Soviet Union (the Second Half of the 1940s.)

He article describes the formation and activities of the ad hoc judicial bodies - the special camp courts in the Soviet Union during the second half of the 1940s. The author comes to the following conclusions: special courts were set up in camps hastily; deliberately there was no clearly defined jurisdiction of the camp courts; in the judicial personnel there was staff turmoil and behind-the-scene struggle. In addition, the activities of the bodies were affected by the confusion and "liquidation" sentiment that existed in the management of the camp courts. The thing was that the People's Commissar of Justice N. Rychkov had a very negative attitude towards the camp courts and, whenever convenient, indicated that the Interior Ministry only needed them as their "pocket" courts, turning to the debate on the question of inexpediency of the existence of the camp that "disorganized their work." It should be noted that the steering control apparatus saw staff turmoil. The formation of special camp courts took a fairly long period of time and did not quite corresponded with the plans of the government. The maintenance of the activities of the camp courts and the life of the court staff depended entirely on the heads of the places of detention which violated the constitutional principle of the independence of the judiciary and did not contribute to the effective work of these special courts. In addition, the special camp courts were clearly adversely affected by the excessive disclosure of their activities. The ratio of appealed convictions and sentences of the camp courts was high enough which explicitly talks about low qualifications of judges of special courts in the camp. Thus, in1947 the judicial panel on camp courts' activities of the Supreme Court of the USSR abolished 18% of sentences in cases decided under the procedure of Cassation. According to the official data of the Supreme Court of the USSR among appealed and protested sentences rendered by the courts, it upheld 69,9% in 1948; in 1949 - 68.1%; in the first half of 1950 - 66.5%.

Features of the Criminal Procedural Activities of the Court in the Resolution of Issues Related to the Execution of the Verdict of a Foreign State Court

The article examines the specifics of judicial activity, its nature and subject matter, the specificity of the evidence in cases on the resolution of issues related to the execution of the sentence of a foreign state court, concludes with the peculiarities of the corrective activity of the court in the enforcement of the sentence of a foreign state.