Trial Court Research Articles

Towards Abolition of the Doctrine of De novo Trials in Nigerian Courts

Whenever the problem of delay in the administration of justice is discussed the doctrine of de novo trial comes into focus with the various perspectives that the phenomenon presents. The Nigerian situation is as simple as stating that while the society is growing and moving forward, the Nigerian law (one of which is de novo trial) is dragging it backwards. The end result is that it is not only expensive and breeds delay and denial of justice, the system and those running it do not seem to bother and those affected do not also seem to have the will to make a fuss and perturbation. Yet, around the world, the evidence that the doctrine has been abandoned because it is ‘bizarre’ is so glaring that why it is still being maintained, entrenched and eulogized in Nigeria drives this study which adopts the doctrinal method. The study finds that de novo is a procedural bench problem and seeks to highlight that there are no dangers inherent in abolishing the procedure in the trial process where a Judge is elevated, dies, resigns, retires or is transferred so that his successor can continue from where he stopped and so that de novo can only be resorted to in the appellate realm where the need arises.

The Mifepristone Litigation: Untangling the Implications of the Fifth Circuit's Decision for Abortion Access and the U.S. Food and Drug Administration.

In August 2023, a federal appeals court issued an opinion in Alliance for Hippocratic Medicine v FDA, a case wherein a group of antiabortion medical organizations and physicians have challenged U.S. Food and Drug Administration (FDA) approval and regulation of mifepristone. This opinion contained some good news for the FDA, drug makers, and patients: the appeals court declined to halt the marketing of mifepristone altogether (as the trial court judge would have). But the court also decided that the FDA's 2016 and 2021 actions expanding the indication for mifepristone, lowering the drug's dose, and loosening restrictions on its distribution and use were likely unlawful, and it thus affirmed the trial court's order staying these actions. In this article, we explain key aspects of the opinion to health care professionals and consider the ways in which the appeals court's reasoning and conclusions, if followed by the Supreme Court, could undermine abortion access and public health going forward.

항고의 제기에 따른 경정결정에 대한 불복방법

It is a natural rule of law also in Korean Civil Procedure that a party who has been judged unfavorably in the trial process should have an opportunity to appeal. However, an appeal was filed against the judgment of the first trial court, and when the presiding judge of the first trial court who received the appeal rejected the appeal because the requirements of the letter of appeal were defective, the appellant filed an immediate appeal, claiming that the defect was supplemented. Also, if the court of the first instance reviewed the immediate appeal and decided to correct the order to dismiss the appeal in recognition of it, there is a question of whether the other party disadvantaged by this can object to this correction decision.
 There is little discussion about this problem in academic field, but the recent precedent from the Supreme Court of Korea ruled that if the objection is not allowed at this time, unfairness will occur between the two parties, and that only a special appeal will be allowed at this time, violating the constitutional right to request a trial, so an immediate appeal can be filed by applying mutatis mutandis to the provisions on the correction of the judgment of the Act of Civil Procedure of Korea.
 However, the explanation of the precedent is not correct. First, the appellant's immediate appeal is against the order to dismiss the letter of appeal, but the method of objection that must be recognized by the other party relates to the correction decision, and the level is different. Second, it is not uncommon for both parties to be able to object only unilaterally, without necessarily acknowledging objections to both parties if necessary in civil proceedings. Third, even if an objection to a correction decision is not admitted, there is usually an opportunity to claim it later. Fourth, it is not correct to admit the correction because the correction procedure of the judgment applied mutatis mutandis by the court and the correction decision in the appeal procedure are quite different. Fifth, acknowledging a special appeal does not violate the parties' constitutional right to request a trial.
 Based on these points, it was concluded that the method of objection to the correction decision does not necessarily have to be recognized, and that the method of objection does not have to be an immediate appeal.

Do United States Tax Court judge attributes influence the resolution of corporate tax disputes?

Corporate taxpayers can have economically meaningful disputes with the United States Internal Revenue Service (IRS) that ultimately involve the federal judiciary. In an attempt to reduce the number of corporate tax disputes going to trial and reduce the amount of time between when corporate taxpayers file a petition with the United States Tax Court (USTC) and resolution of the case, politicians and judges have placed greater emphasis on negotiated settlements as opposed to Tax Court trials. In this paper, we investigate whether the personal attributes of the Tax Court judge assigned to the case (political ideology, tenure on the bench and professional experience) influence corporate taxpayers and the IRS to reach a negotiated settlement or proceed to trial. Overall, our results show that Tax Court judges who are conservative, have private practice experience, have governmental legislative experience, and have longer tenure on the Tax Court bench are more likely to preside over disputes resolved through a negotiated settlement as opposed to going to a trial.

The Court of Cassation’s Oversight of The Wrongful Adaptation of The Criminal Incident

The Court of Cassation is the supreme judicial commission that examines the decisions issued by the civil courts , personal status courts (family courts) and criminal courts regarding the crimes with sentence of more than (5) years. In criminal courts decisions, the Court of Cassation apply two kinds of functions, the mandatory cassation and discriminatory interference. After Appealing to cassation court this court has its right to observe the integrity of the application of the rule of law on the judgments in judicial cases that are subject to appeal. These cases can be related to substantive or formal rules, in order to ensure the validity of the law’s actions on the incident presented to the trial court. This court is viewing the verdict the estimating the penalty verdict which adapting the trial court. As well as the criminal incident before the court, as it is one of the legal issues related to the validity of applying the law

Gender and child custody outcomes across 16 years of judicial decisions regarding abuse and parental alienation

There have been legislative efforts to control how child custody decisions are handled in family courts where allegations of abuse and of parental alienation (PA) are levied. The “findings” reported to support such legislation have been based on one unreviewed study with identified methodological issues (Harman & Lorandos, 2021). We tested six pre-registered hypotheses to determine whether there is empirical support for the “research findings” used to support these laws. Five-hundred PA cases were sequentially selected from 4,889 Canadian trial court decisions. Independent coders who were blind to the hypotheses coded all cases for details about custody and allegations of abuse. We failed to find support for the “findings” that have been used to support legislative changes. For example, this study focused only upon cases where PA was determined to actually have occurred in at least one of the children in the family. It differs from Harman & Lorandos (2021) in that this study found that alienating mothers’ claims of abuse against known “abusive” alienated fathers were not being discredited more often than they were for alienating fathers. The negative impact of failing to base legislation on a comprehensive consideration of the full scope of scientific evidence available (e.g., Kayden’s Law in the reauthorized Violence Against Women’s Act, 2022) is discussed.

Appellate review of foreign law

Canadian courts treat foreign law as fact. When foreign law governs a dispute as a result of choice-of-law rules, the parties must plead and prove its contents, typically through expert testimony. The trial court assesses the evidence and applies the law, as it was proven, to the case at hand. But what happens when a litigant disagrees with the trial court’s view of foreign law and appeals its decision? Appellate courts do not interfere with findings of fact unless the trial judge made a palpable and overriding error. Conversely, appellate courts are free to impose their views on questions of law. Should appellate courts defer to the trial judge or get the final word on issues of foreign law? This article addresses the disagreement between appellate courts over this issue, which the Supreme Court of Canada dodged in a recent case. It delves into the complex features of foreign law, insisting on the distinction between its evidentiary treatment (as fact) and its nature and function in litigation (as law). It makes the case for a nuanced approach to the standard of review which accounts for the many ways in which problems of foreign law present themselves to the courts. As a result, appellate courts should characterize specific questions of foreign law as questions of fact or questions of law rather than attempting to pigeon-hole foreign law itself, an abstraction capable of being both. Ultimately, correctness and deference should coexist in the appellate review of foreign law findings.

Tárgyalási alapjogok és tárgyalási etika a büntetőeljárásban

The number of criminal court trials is constantly decreasing, as the domestic legislature has introduced a number of legal institutions aimed at diverting criminal cases from the court system, or avoiding charging. Nevertheless, there will always be crimes, the adjudication of which cannot dispense with impeachment based on direct judicial investigation. The trial is undoubtedly the "highlight" of the criminal proceedings, since it is here that the adversarial process takes place in its entirety, and here the defense counsel and the prosecutor have the opportunity to form opinions on factual and legal issues in each other's personal presence. The amendment of the Criminal Procedure Act naturally raised many questions, such as who in the near future will actually control the evidence taken in court proceedings, and what basic procedural rights should be provided to the participants of the proceedings. In this study, I would like to reflect primarily on these questions, based on some ECtHR decisions.

Taking One for the Team? Some Reflections on the Trial of Malawi's Hyena-man

AbstractFollowing a public outcry about Eric Aniva being hired to have sex with children, he was arrested, tried and convicted of attempting to engage in a harmful practice and also of engaging in a harmful practice, contrary to Malawi's Gender Equality Act. Aniva's trial attracted significant public attention and highlighted kulowa kufa, the cultural practice at the centre of his trial. This article revisits Aniva's trial. By focusing on the operation of the law in judicial processes as well as the dynamics of judicial decision-making, it demonstrates and concludes that Aniva's trial may have been compromised. Specifically, the article analyses the state's failure to identify and parade material witnesses notwithstanding the alleged multiplicity of Aniva's victims, the role of the media in the trial as well as the probable effects of the trial court's selective recourse to international human rights standards.

SOLDIERS’ CONSTITUTIONAL RIGHTS AND MILITARY JUSTICE: COMPARISON BETWEEN THE REPUBLIC OF MALDIVES, MALAYSIA AND OTHER JURISDICTIONS

In 2008, Maldivians promulgated a revised Constitution. The updated Constitution introduced several democratic reforms, such as the establishment of independent institutions, the protection of human rights, the introduction of a multi-party system, and the strengthening of the rule of law. Mainly fair and transparent hearings and fair administrative action. These reforms have allowed the Maldives to achieve a more open and transparent government. Nevertheless, since 2008 many cases ruled by Maldivian military judicators have been acquitted by the Maldivian civil justice system, which includes trial courts, the high court, and the supreme court. The civil justice system has determined that the military judicators have not followed due process, and thus the cases have been overturned. Additionally, the civil justice system has implemented several reforms and safeguards to ensure all citizens have access to a fair trial. This resulted in prejudice against military justice in the army. The primary goal of the military judicator is to maintain good order and discipline in the army, as discipline is the sole of every army. Therefore, this article thoroughly analyzes the unconstitutional limitations on constitutional rights by the Maldivian military judiciaries and the legal implications that follow. It emphasizes the crucial significance of maintaining the rule of law, promoting good governance, ensuring military justice, and preserving national stability. Furthermore, it draws insightful comparisons between Malaysia and other relevant jurisdictions.

독일의 형사 공판 기록의 디지털화 추진의 의미와 시사

Germany is implementing a plan to digitally video or audio record what happens in the trial court of criminal proceedings. Many German judges also have animosity or concerns about video recording of trial proceedings. However, a bill aimed mandatory recording and discretionary video recording was submitted with the goal of mandating digital video recording or recording and automatic creation of transcript records in all courts by 2030. Even in Germany, various arguments for and against this bill were presented. As Mosbacher, a judge in the criminal division of the German Federal Supreme Court, said, it is no longer a matter of wether but how, and the details have become subject to compromise.
 In this article, we looked at the contents of the related German bill, the pros and cons, especially the judges' positions and counterarguments of scholars and criminal lawyers, and looked for the implications this can have on our situation.
 Ignoring the basis of the legitimacy of the existence of criminal trials and advancing modern technology may ultimately lead to the collapse of criminal justice per se.
 The way to become a court trusted by the public, to be evaluated as a criminal judgment acceptable to the parties, and to drastically reduce the overflow of appeal cases depends, above all, on how faithfully and transparently the first trial procedures and rulings that deal with the facts are made.
 Rather than clinging to the old-fashioned slogan that video trials cannot be permitted, it is important to know where, what, and how to change in our criminal trial in order to become a functioning criminal justice system that can meet the unique challenges of criminal trials as much as possible while efficiently using the limited national budget. We have to think about it.

Les conséquences du rôle de juré d’assises sur la santé mentale : état des lieux et préconisations

Jury duty, as exceptional as it is, is not without consequences for mental health. Indeed, during this assignment, randomly selected citizens are called on to judge people accused of criminal acts, to decide on their guilt and, if necessary, on their sentence. Thus, in court trials, the juror's voice will count just as that of the professional judges who sit with them. However, this enormous responsibility and the imperative aspect of jury duty can cause significant stress, especially when we consider that very often, jurors only have a limited knowledge of the judicial system. Also, being exposed to various types of evidence and to serious facts can be trying. Finally, the various obligations jurors have to meet can accentuate the difficulty of this duty, for example, the fact that, because the procedure is subject to sanctions, the jurors cannot discuss the case with others and must respect the secrecy of deliberations, even after the judgment has been rendered. For all these reasons, and also sometimes because of pre-existing individual vulnerabilities, the jury duty experience can lead to a variety of psychological difficulties, difficulties that are still not sufficiently taken into account. Although several forms of care are emerging today, such treatments remain varied and unequally available throughout the country. This article has multiple purposes. First, it aims to enumerate the possible consequences of jury duty on mental health, then, to present an inventory of what is actually available in terms of care in France. Finally, this inventory leads us to the possible intervention in several stages which could be made available to jurors, thereby offering a comprehensive and generalized support. A review of French and international literature was carried out, highlighting the main consequences of jury duty on mental health and the emergence of care systems, particularly in North America and France. Several studies stress the impact of jury duty on mental health, particularly in terms of stress, anxiety disorder and/or post-traumatic symptomatology. While support systems have emerged particularly in Canada, some have also gradually begun to be put in place in France, but they differ from one area to another, and they are not systematically made available. Some of them focus exclusively on post-trial support, while others also offer an upstream prevention phase. Finally, in terms of evaluation, the effectiveness of those interventions is estimated only by the participant's satisfaction, without any systematization or assurance of the real effectiveness of these interventions. Considering the available data in the literature and the various existing support systems, a proposal for a system of generalized support to jurors has been put forth in order to argue in favor of the adoption of this type of care. Indeed, in addition to a post-trial intervention, it seems important to plan for a phase of pre-trial prevention and the presentation of a treatment protocol, before the actual trial begins. Particularly, this should encourage jurors to more willingly take part in the post-trial intervention should signs of stress and anxiety emerge. Finally, it appears necessary to systematize the evaluation of the effectiveness of those support systems other than simply in terms of the satisfaction of the participants.

Impact on child justice in a world of digital courts: Perspectives from the bench

The Covid-19 pandemic brought so much tragedy across the world, but as with so much necessity also became the mother of invention. The notion of a virtual trial or other court proceedings came to life during the pandemic to help courts continue to function. In this context, virtual court proceedings and trials became the norm. And, as the world grapples with emerging from this health crisis different courts are taking different paths. In order to guarantee the child’s right to justice during the pandemic and as it waned, some jurisdictions have opted to continue holding hearings in-person, while maintaining physical protection from viruses; others have decided to digitise court proceedings using technological tools. To explore this development, volunteer attorneys from Baker McKenzie and the legal department of Google came together to assist the Global Initiative on Justice With Children, by interviewing judiciary professionals around the world. Using a single questioning tool, volunteers conducted interviews with individual judges to understand their perspectives on the use of digital hearings and the effect of their use on justice for children. We opted for the term ‘digital justice’ to describe this use of virtual technology to conduct hearings and trials in youth justice proceedings rather than conducting them in-person. This paper aims to highlight how digital justice had a significant impact on justice systems for children and youth during the pandemic, determine whether digital justice could or should become a new normal in children’s justice systems, and identify what should be the protective measures for children in a modified justice system. This paper analyses the advantages and disadvantages of virtual hearings and the impact of them on children’s ability to effectively participate in and adequately understand the judicial processes and the seriousness of the justice outcomes. It also discusses the different jurisdictions’ approaches to requiring the presence of the child’s lawyer during the proceedings and the obstacles to children’s access to legal aid in a digital context. The interviews conducted by volunteers highlighted difficulties in ensuring a safe space for children and young people’s data and privacy, difficulties in communicating with counsel and receiving useful advice from lawyers and other participants in the proceedings, and difficulties for children to feel that they can speak up in their own proceedings.

A Game of Telephone: The Evolution of Conspicuous


 
 
 
 This article discusses the evolution of how conspicuous service is regarded by trial courts in New York state. Conspicuous service or “nail and mail service” is the process of nailing notice of an upcoming court hearing to a visible place on the property of a defendant. This article examines the legitimacy of this method of service as it pertains to money judgments in summary proceeding cases.
 
 
 

Exploring how absence of judicial freedom undermines press freedom in Ethiopia

This qualitative phenomenological study explores how private press journalists perceive, narrate and interpret their personal challenges and hardships they faced with the judicial system of Ethiopia. In addition, this study explored lived experiences of the journalists and their effort to fight to get a proper court trial in the country. To explore those challenges, and hardships the study considered a time framework embedded the late Prime Minister of Ethiopia Meles Zenawi's tenure. The study used a theory of Alfred Schutz's “Life World” as a lens to provide a “pure” description of the participants' lived experiences. The theory entails a thorough assessment of the participants' encounters and a focus on their lived experiences concerning lack of freedom of judicial system. The data was obtained through a semi-structured interview, which is widely regarded as the most effective method for gathering information for an Interpretative Phenomenological Analysis study. Interviews with the journalists were conducted and transcribed with the goal of allowing participants to tell their own stories. The interview transcripts were studied one by one, and each transcript was read and reread to uncover themes that were then organized and further investigated. This study discovered that private press journalists undergo a variety of problems, hardships, and sufferings as a result of lack of free judicial system in Ethiopia during Meles Zenawi's nearly quarter-century rule. Thus, we propose that if we want to see true freedom in every dimension, including press freedom, the legal system must be totally free from the grip of political power and cease functioning like a puppet and doing what it is instructed.

Hurdles in Joinder: Case of Professor Enu, C.I.I. and Ndokwa West L.G.C., Delta State Nigeria

Joinder of parties in litigation is one recurrent decimal in the administration of civil justice in Nigeria. It is because of its complexity that the theory of representative action developed so that parties who have similar interests in a subject matter in litigation can allow one of their own to institute an action in their behalf usually called class action. Representative actions are popular in family, associational and organizational settings. This study is a critical conversation around the circumstances that gave rise to a joinder application in NWACC/37/2019 Chief Mrs. Rita Enu v. Melody Ogwezzy and Community Integrity Initiative where the defendants in the suit tried to join Professor Emmanuel Ifeanyichukwu Enu, the spouse of the plaintiff and Ndokwa West Local Government Council in an action concerning the naming and allocation of Street numbers in Bishop Titus Enu Close, Kwale Delta State. The study which adopts doctrinal method surveyed the claims and counter-claims in the suit and the evidence in the case and interrogated the judicial authorities in the area of joinder of parties in civil litigation. It critically raises the primary facts which the plaintiff relied upon in suing the defendants and presented the evidence elicited from cross examination of the plaintiff that yielded the factual circumstances that the defendants capitalized upon to raise a Motion on Notice for joinder. Although the joinder was swiftly dismissed by the trial court, an appeal to the High Court of Justice, Kwale was subsequently transferred to the Delta State Customary Court of Appeal, Cabal Point, Asaba where the appeal succeeded in parts: while the Local Government Council was ordered to be joined, the joinder of Professor Enu was refused. The study finds that there are clearly laid down guiding principles that a court follows in the determination of every application touching on joinder the Locus classicus of which is laid down in Green v. Green. It was further found that although the grant or refusal of an application for joinder is an exercise within the discretion of the court, which ought to be exercised judicially and judiciously and the appellate courts do not form the habit of interfering often with the exercise of a lower court’s discretion, in this case under review, the court of appeal intervened essentially because the issue of fair hearing was invoked as the Delta State Customary Court of Appeal, Asaba determined that the defendants had sufficiently demonstrated an indictment of the Local Government Council in the performance of its constitutional responsibility and thus ordered that it should be joined to be confronted with the case and complaints of the defendants.

Studies in Litigation Against the Church in Nigeria: The Case of Basilica of Grace, Abbi

This study captures in vivid perspectives, the legal battles that the Church has come to face in recent times in Nigeria over land. For this case-study that is focused on the Basilica of Grace, Abbi in Ndokwa West Local Government Area of Delta State Nigeria, attempt shall be made to concentrate on the legal struggles the Church began to face in recent times arising from land hunger and the emergence of the commercializing influence of capitalism on the Church in Nigeria. The Church in Nigeria has become hugely wealthy that attack on it has become quite fashionable with the hope and aim that in the calculated process of litigating with the Church over land, the Church may cave into settlement with the disputants and in the process, the disputants may ‘hack into the finances of the Church’ and ‘chop out a large chunk-of-cash from the tilt of the Church’ in order for the Church to have peace. This study which adopts the doctrinal method interrogates the circumstances that led the Basilica of Grace, Abbi (under the Registered Trustees of Diocese of Ndokwa Church of Nigeria Anglican Communion) into a pernicious legal battle with Femi Ojuyenum and six others representing Ogwezzi-Amacha family of Umu-Onyugba Street of Abbi. The study traces the origin of the grant of the land to the Church, the ceding of a part to the State for School as a Missionary Society and the pseudo reversionary claim of the Ogwezzi-Amacha family and the conveyance of same to unscrupulous ‘money bags’ in Abbi community who have taken turns to transfer the land in millions from one ‘Barron’ to another to the discomfiture of the Church at Abbi. It further interrogates the legal processes and pleadings of the parties through the trial court to the various appellate courts in details and captures the socio-legal influences driving the litigation. The study finds that those who dabbled into the litigation with the Basilica of Grace did so for selfish interest and in a calculated desire to upturn the grant made by the early fathers of Abbi community to the Christian Missionary Society on the spurious claims that those forefathers who made the grant in relative antiquity were merely overwhelmed by European civilizing influence and uninformed of the ancient and current value of land. The study found further that the litigation was being fought in the face of a customary arbitration against the antagonists of the Church. The study therefore suggests and recommends that the claims and attacks against the grant and the Church should be repudiated and dropped by the defendants to ‘allow sleeping dog lie’.

Lost in Translation: Navigating Linguistic Challenges in Lesotho High Court Trials

Court interpreting services are an essential component of the Lesotho’s legal system to ensure that everyone has access to justice and can present their cases in the language of their choice, more especially at the Lesotho High Court where English is the language of the court. Effective court interpreting requires interpreters with, among other things, high level of linguistic and cultural proficiency in their working languages, strategic competence, and a set of specific skills. However, the lack of formal professional training for court interpreters can have serious consequences on both the communication and the decisions of the court. Following the methodological principles of a qualitative case study explored strategies employed by the Lesotho High Court interpreters in their attempt to address linguistic challenges that they often encounter during their facilitation of communication between judges, lawyers and plaintiff/defendant/witnesses. The study further examined how such strategies may affect communication of the intended message in the interpreter’s renditions. Employing a pragmatic approach guided by Gricean maxims, this paper discussed a purposive sample of 19 excerpts extracted from the transcripts made from ten audio recordings of criminal cases from the Lesotho High Court. The study discovered that such strategies were employing to address linguistic challenges such as terminological challenges, long sentences and incomplete or too brief source language utterances. The study further established that the use of the identified strategies may distort the original speaker’s intended message and hence misinform the witnesses and/or target recipients, which in turn could result in an unfair trial. To enhance the court interpreting process to uphold fairness and clarity in legal proceedings, this paper therefore recommends that the Lesotho High Court should provide formal training to its interpreters to raise their awareness of the strengths and weaknesses of the strategies they use.

Reflecting on the corporate opportunity rule in company law through a jurisprudential review of Modise v Tladi Holdings (Pty) Ltd 2020 4 All SA 670 (SCA)

Directors' fiduciary duties form part of foundational principles in corporate law. This concept has its foundations in the law of agency. Prior to the Companies Act 71 of 2008 (the Companies Act), fiduciary duties were governed under common law, however, the advent of the Companies Act resulted in the partial codification of fiduciary duties. One of the central fiduciary duties is the duty of directors to avoid conflict of interest. This duty restricts the directors of a company from having their personal interests impede those of the company. There are separate rules that flow from the directors' duty to avoid conflict of interests, including the corporate opportunity rule. The corporate opportunity rule dictates that directors must not use their position to unfairly benefit from the contracts and/or information that rightfully belongs to the company they are managing. The objectives of the corporate opportunity rule were clarified in Modise v Tladi Holdings (Pty) Ltd (the Modise case). In partially confirming the judgment of the court a quo the Supreme Court of Appeal held that the ambit of breaching the corporate opportunity rule includes the illegal use of the property and confidential information of the company by a director for personal gain. This article agrees with the reasoning of both the High Court (court a quo or trial court) and the Supreme Court of Appeal in the Modise case on the issue of prescription although the article raises concerns about the decision of the Supreme Court of Appeal on a similar issue. Further, the article concurs with the reasoning of both the court a quo and the Supreme Court of Appeal in concluding that the applicants breached their fiduciary duty when they appropriated a corporate opportunity that belonged to the company. One of the major lessons that could be learnt from the Modise case is that directors, especially those who serve on multiple boards, should exercise extreme caution with potential conflicts of interest.

제3자에 대한 이혼위자료청구권과 소멸시효

Recently, a 2nd trial court found that the right to claim for damages resulting from an adultery to the person engaged in a sexual relation with a married person shall lapse by prescription if not exercised within three years commencing from the date on which the injured party becomes aware of such adultery and of the identity of the person who caused it. Furthermore, the court dismissed the claim of the plaintiff on the ground that the claim of the plaintiff had expired due to the extinctive prescription. The Supreme Court rendered a judgment dismissing the appeal to the effect of accepting the trial court without any separate legal explanation. The main purpose of this article is to point out the problem of the judgment of the above court regarding the starting point of the extinctive prescription of the right to claim alimony for divorce against a third party. Liability for damage due to infidelity itself is different from the liability for alimony in cases where the breakup of the marriage relationship or divorce occurs due to the infidelity, in view of the contents of the provisions of the Civil Act and the Family Litigation Act, and the difference of the causes and damages of each liability. The starting point of the extinctive prescription of the right to claim for alimony for divorce should be regarded as the time of dissolution of the marriage (or when the divorce is established). The 2nd trial court's argument that the extinctive prescription of the right to claim for alimony for divorce has been completed is not an argument for the extinctive prescription itself, but an argument for whether it is appropriate to acknowledge the liability for alimony for divorce to a third party. On the other hand, whether or not the right to claim alimony for divorce against a third person is acknowledged requires a separate review. It is difficult to generally recognize the right to claim alimony for divorce against a third party. The reason is as follows. First of all, the liability for compensation for alimony due to extreme mental anguish suffered by a victim spouse due to the involvement of a third party in cheating can be acknowledged through the exercise of the right to claim for cheating itself in a civil court not a family court. Secondly, it is difficult to uniformly admit a causal relationship between temporary or short-term cheating and divorce. The establishment of divorce is the result of a decision based on the free will of the couple concerned. A third party who participates in cheating violates the contractual relationship between the victim and the offending spouse. Nevertheless, if a third party urges the victim spouse to divorce by threats or coercion, or if the third party maintains a de facto marital relationship with the spouse at fault until the judicial divorce is established(if there are special circumstances where it can be seen that the third pary has an intention to break up the marriage relationship of the other person), the third party's liability for alimony for divorce must be acknowledged.