Criminal Judgments Research Articles

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.

Law and Judicial Records in Israel: Invalid Management and Sharing of Public Knowledge

Valid management and sharing of public knowledge is a critical aspect for any competent legal system and for thesafeguard of human rights. The duty of government to make the law known is commonly accepted legal norm, relative tolaws that are enacted by the legislature. Yet, how are laws, which are embedded in cyber platforms by programmers, to bemanaged and shared? The problem was presented by L. Lessig as a legal theory - “Code is Law”. Lessig primarily addressedcommercial platforms that were used for sharing knowledge, claiming that such platforms effectively established newrules, which were not enacted through any democratic process, were not explicitly stated, and might threatenconstitutional principles. E-government systems are a critical subset of such cyber platforms. Instant case study presentsdata from a series of Israeli court cases, pertaining to rules that are embedded in e-government systems, which determinetax liability, using the Tax Authority system, and valid signing and entry of criminal judgments of the courts themselves,using Administration of Courts Net-HaMishpat system. In both cases, government agencies refused to provide anyinformation regarding such rules, pursuant to the Freedom of Information Act. Following lengthy court battles, such ruleshave not yet been provided. The Israeli Supreme Court has avoided ruling on the issue whether software or IT system codeconstitutes “information” pursuant to the Freedom of Information Act, deeming it ‘not ripe for review and decision’. Theobvious concern is that the rules, which are implemented in the respective e-government systems are out of compliancewith the publicly shared law and violate constitutional rights. In both cases, the issue is directly related to authenticationand validation of e-government systems and the knowledge they share. Such circumstances raise further concernsregarding knowledge management and sharing - lack of integrity and dissemination of invalid public knowledge bygovernments, undermining the public’s capacity to keep a watchful eye on the working of government agencies.Particularly regarding the courts, such circumstances can undermine the rule of law and human rights. IT experts shouldassume a more active role in human rights protection.

RETRACTED: Xu, X.; Yang, Y. Can Digital Financial Inclusion Help Reduce Urban Crime? Evidence from Chinese Criminal Judgment on Theft Cases. Systems 2023, 11, 203

The journal retracts the article entitled “Can Digital Financial Inclusion Help Reduce Urban Crime [...]

The Offence of Illegal Fund-Raising and Virtual Currency: A Review of Supreme Court Criminal Judgment Year 2023 Tai-Shang-Zi No. 317

The Offence of Illegal Fund-Raising and Virtual Currency: A Review of Supreme Court Criminal Judgment Year 2023 Tai-Shang-Zi No. 317

Analyses of Criminal Judgments about Domestic Child Abuse Cases in Taiwan.

Child abuse has negative impacts on the well-being of children and often leads to adverse consequences, such as suicide, alcohol addiction, depression, and substance abuse. To better understand domestic child abuse in Taiwan, this study analyzed 73 criminal judgments (open-access documents) in which the victims of domestic child abuse were children below the age of 12 from the "Judicial Yuan Law and Regulations Retrieving System" database. There were 73 victims and 91 perpetrators involved. The results indicated that younger children were more likely to be victims of physical abuse, and the majority of death cases were committed by biological parents and cohabiting partners. The perpetrators tended to be young males with lower education. Male cohabiting partners appeared to be a high-risk population for child abuse. Approximately 63% of perpetrators experienced poverty, and 24.7% suffered from marital discord. In the 73 cases, 61.6% of the victims died, 21.9% were mildly injured, and 16.5% were severely injured. The sentencing was related to the level of injury, with perpetrators of mild injury sentenced to less than one year while perpetrators with victim death were sentenced to a longer period of imprisonment. It is suggested that parents at higher risk require greater financial and social support and should be educated on appropriate disciplinary techniques.

Accuracy and fairness – Siamese twins?

The author agrees with Sarah Summers’ view that a criminal judgment in a system of fair justice should be substantively accurate and at the same time should be the result of a fair process. The author argues, however, for keeping these two requirements apart because they are linked to different goals and may in individual cases conflict with each other.

Analisis Putusan Perkara Anak Pelaku Tindak Pidana Eksploitasi Secara Ekonomi Dan Seksual Terhadap Anak Secara Online (Studi Putusan No.6/Pid.Sus-Anak/2020/Pn.Pdg)

This paper is a case study with case number 6/Pid.Sus-Anak/2020/Pn.Pdg which has permanent legal force. In this decision, the child is the perpetrator of the crime of economic and sexual exploitation of children. Juridically in Article 70 of the SPPA Law, the personal circumstances of the child, or the circumstances at the time of the act or what happened later can be used as a basis for the judge's consideration not to impose imprisonment. However, in this decision the judge imposed a prison sentence on the child. The problem formulations discussed in this paper are: 1. How is the judge's consideration in imposing a criminal judgment against the child who is the perpetrator of the criminal offense of Economic and Sexual Exploitation of Children (Decision Number 6/Pid.Sus-Anak/2020/Pn.Pdg)? 2. Is the Judge's Decision Number 6/Pid.Sus-Anak/2020/Pn.Pdg. in accordance with the Purpose of Punishment of Children? The legal research method used is normative juridical with a problem approach, namely, case, statutory and conceptual approaches. This research is descriptive analytical, data collection techniques with document studies or literature studies. In the legal analysis of case settlement, according to the author, the child should not have been sentenced to imprisonment because first, the child had not previously committed a criminal offense, second, the child was cooperative and polite during the trial and the consequences of the incident hindered the child's growth and development. Judge Decision Number 2/Pid.Sus-Anak/2019/Pn.Pdg is not in accordance with the objectives of punishment in general, which are more precisely regulated in the SPPA Law because it emphasizes restitution to the original state rather than retaliation, and the use of imprisonment or detention as a last resort or as an ultimum remedium.

The Reconstruction Logic and Institutional Realization of the Substantiation of Court Hearings in China's Commutation of Sentence and Parole Cases

The manuscript discusses the importance of sentence commutation and parole cases as an essential stage in the execution of criminal judgments, related to both judicial justice and trial authority. To clarify this issue, this article mainly adopts a literature research method to systematically review the research on China's establishment of parole and commutation since its inception, and uses case studies to provide examples to illustrate the existing situations.The author argues that substantive hearings for these cases can remove the issue of "paper-pushing" and strengthen procedural justice, transparency, and judicial justice. The manuscript suggests that the current "tripartite" linear model for parole hearings should be transitioned to a deliberative mode with statements from both prosecution and defense to achieve a substantive hearing. The author proposes that the "tripartite trial structure" reform should be the starting point for reconsidering the legal identity and rights of the participating subjects and their responsibilities.

RETRACTED: Can Digital Financial Inclusion Help Reduce Urban Crime? Evidence from Chinese Criminal Judgment on Theft Cases

The rapid development of digital finance has changed all aspects of human life and has also had a deep impact on the social governance system. This paper constructs an unbalanced panel of data of the theft crime rates for 289 cities in China during 2014–2019 based on the theft criminal judgments published on China’s Judicial Documents website and explores the impact of digital financial inclusion on urban theft crime. It shows that there is a significantly negative correlation between digital financial inclusion and the urban theft crime rate, indicating that the development of digital financial inclusion can effectively reduce urban theft crime, which is also confirmed by instrumental variable analysis based on the spherical distance between cities and Hangzhou, and that digital financial inclusion mainly reduces theft crime committed by more serious and highly educated individuals. In addition, mechanism analysis shows that digital financial inclusion can reduce the expected benefits of theft by enhancing payment convenience and raise the opportunity cost by promoting employment. Therefore, in the Internet era, it is essential for China to continuously improve social governance tools that adapt to the development of new technologies to achieve high-quality urban development.

HOMOSEXUAL RIGHTS AND SAME-SEX MARRIAGE IN VIETNAM

Homosexuals in Vietnam face many prejudices, stigmas, and discrimination from family, society, friends, and from people in the same community as in some other countries in the world. Assessed objectively and comprehensively, the issue of homosexual rights appeared quite late in the Vietnamese legal system (only the right to determine gender has been recognized since 2005). Over the past five years, the legal system has been amended and supplemented with a number of positive and developed provisions on the rights of these subjects (marriage and family, civil, criminal justice, etc.). However, in general, the Vietnamese legal system on this issue still has some gaps, not covering all homosexual and transgender subjects (same-sex cohabitation relationships, property relationships, child rights, criminal judgment execution, etc.). Basically, the Vietnamese law on this subject's rights still lacks a lot of regulations compared to the common standards of the world.

Principles of punishment without deprivation of liberty in the provisions of Vietnamese law

Vietnam has promulgated many legal documents as a basis for the organization and operation of criminal judgment enforcement. However, most of them focus mainly on the execution of prison and death penalty without really paying enough attention to the execution of punishments without deprivation of liberty. The system of legal documents on penalty enforcement without deprivation of liberty was issued at different times, so there are still many shortcomings, many contents have not been specified, leading to many difficulties and obstacles in law enforcement. Because it is an administrative-judicial activity, the execution of punishments does not deprive freedom of many subjects, and the order and procedures for judgment execution are relatively complicated, errors may occur, reducing the sense of justice. The meaning of punishment is not deprivation of liberty. Therefore, studying the principles of punishment without deprivation of liberty in the provisions of the law has scientific and practical significance.

Introduction, Summary, Questions for the Future

Introduction, Summary, Questions for the Future

Trademark Commercialization and Trademark Infringement—Criminal Judgment of Intellectual Property and Commercial Court 110 Xing Zhi Shang Yi Zi No. 55

Trademark Commercialization and Trademark Infringement—Criminal Judgment of Intellectual Property and Commercial Court 110 Xing Zhi Shang Yi Zi No. 55

On the Preliminary Effect of Criminal Judgment in Civil Procedure

On the Preliminary Effect of Criminal Judgment in Civil Procedure

후발적 경정청구사유에 관한 비판적 고찰

It is desirable from the point of view of justice to get back the tax that has been filed and paid incorrectly, whether it is tax return or assessment. However, if the tax system is designed in such a way that any tax wrongly
 paid can be refunded forever, regardless of the reason or any method, the tax legal relationship will be in an unstable state for a long time, undermining legal stability and putting an excessive burden on tax administration. Therefore, in order to receive various tax benefits under the tax law, not only the requirements set by the tax law must be met, but in many cases, procedural requirements such as reporting within a specified period are required. For the same purpose, an appeal period is set for contesting the validity of a tax disposition, and a period for exercising the right to claim for rectification is set. If so, it should be seen that the grounds for requesting a subsequent rectification can also be limited by law. 
 In light of the text and system of the law, the grounds for requesting subsequent rectification stipulated in Article 45-2 Paragraph 2 of the Framework Act on National Taxes and Article 25-2 of the Enforcement Decree of
 the Framework Act on National Taxes should be regarded as enumerated. 
 Article 45-2, Paragraph 2, Subparagraph 5 of the Framework Act on National Taxes and Article 25-2, Subparagraph 4 of the Enforcement Decree of the Framework Act on National Taxes contain the expression ‘similar grounds’, but the meaning is ‘similar grounds to those listed above’. It doesn’t mean ‘every reason other than those listed above’. Nevertheless, Supreme Court precedents sometimes broadly interpret the grounds stipulated in the statute as illustrative, and sometimes narrowly interpret them as if they were restrictive, in determining the grounds for a subsequent request for rectification. Regarding the argument, the Supreme Court lacks a consistent standard, such as overcoming the limitations of the principle of affirming rights and obligations when interpreting broadly, and raising differences between civil and criminal judgments when interpreting narrowly.
 In conclusion, although there is room for flexible interpretation of the current grounds for the request for rectification, it should be considered to be basically enumerative. Nevertheless, the attitude of forcibly fitting reasons that are not stipulated in the Framework Act on National Taxes to similar to those stipulated in the Act is judicial legislation close to law creation, not law interpretation. For example, it is the right direction to seek legislative improvement measures for issues that require taxpayer relief, such as the inability to collect debts due to the bankruptcy of debtors, changes in legal interpretation, and unconstitutional decisions.

The Discretionary Power of the Criminal Judge in Determining the Penalty- Historical Rooting

Crime lived sophisticated as society evolved. Consequently, sanctions have been imposed so that there is no danger to society and to ensure its security, stability, and protection. But different times and many experiences have been generated by Penal legislation, convinced of the need to empower the punitive exclusivity from extracting the factual determination of his punishment what is currently known as (The discretionary power) the judge's ability to choose the appropriation punishment of the offender so that the aim of the sentence is understood, and the circumstances and the perpetrator are informed. And think about their circumstances until the judgement is rendered in accordance with the Law appropriate to the events of the offence and its perpetrator in the interest sought by the legislator. Consequently, this research paper has reached conclusions and recommendations his representative stated that discretion had emerged as training over time given the difference and evolution of human societies as well as being recognized by legislation ensuring the application of the principle of justice through the singularization of punishment. However, the concept was not limited to assessing the appropriate punishment for the offender only. It goes beyond the judgement of innocence, the adaption of the crime and the weight of the evidence and other matters in which the legislature gave the judge the understanding and diligence in accordance with the Law. The paper recommends that Penal provisions be imposed as an extension of the supervision of higher courts, in addition to vaccinating Penal text with controls that will facilitate the judge's axes to appropriate punishment for the offender.

Of Onus

Onus is most important in the court. It gets its highest application in each and every step of law. Every word has to prove by the concerned party. In any civil matter paper speaks. Through papers all the claims have to prove without any ambiguity. Here arguments must be crystal clear supporting by sufficient documents. In the criminal judgement onus is more important and serious in nature since it involves life imprisonment or capital punishment. Here arguments have to establish through papers and evidence as well. Here lies the uniqueness of onus rather than unique onus.

KEPASTIAN HUKUM PUTUSAN PEMIDANAAN YANG TIDAK BERDASARKAN SURAT DAKWAAN JAKSA PENUNTUT UMUM

In criminal law enforcement, there is a problem with the judge made law which is unfair and irresponsible in deciding a case, thereby reducing public trust in the judiciary. Criminal judges in Indonesia make many legal breakthroughs in passing a criminal case decision that does not refer to the provisions of the legislation, in other words the judge carries out his own interpretation of a criminal act that is appropriate for the defendant based on the facts in the trial and sets his own article that fits with the facts of the trial that are seen, resulting in a decision that is not in accordance with the indictment of the public prosecutor. It can be seen that there has been a legal event where the judge has decided outside the prosecutor's indictment and this research needs to be followed up by linking the judge's decision that was handed down not based on the article indicted from the aspect of legal certainty. The type of research used in this research is doctrinal law research. The sentencing decision in a criminal case which is decided by a judge not based on the indictment of the Public Prosecutor can be considered invalid because it is contrary to the principles of criminal law. In the examination in court, the party who must prove the indictment to the defendant is the public prosecutor, not the judge.
 Keywords: Legal Certainty, Judge made law, Letter Demands, Public Prosecutor

Editorial – An overview on the “crisis” of testimonial evidence as a judicial decision making tool, between ECHR and Italian Criminal Proceeding:

We know that science is a precious ally for the judge in the search for truth. But we also know that every coin has its flipside. Science can in fact constitute a false ally for the judge, dangerously channeling the process towards judicial error. The matter is well known. Criminal justice now draws heavily on the results of science, but has to deal with its overt fallibility. Often the process becomes the place where experts and consultants reveal the gaps in those same disciplines that should instead correctly orientate the decisions of criminal judges. Therefore, the Criminal trial always needs witnesses. Especially witnesses against the accused, of course. However testimonial evidence as a fundamental judicial decision making tool is in crisis today. A crisis that has come about as a result of the downsizing of the right of the accused to effectively cross-examine the witnesses testifying against him (or her), thereby reducing the chances for the judge to perceive the witness's story in the best possible way. Hence the risk of significantly lowering the quality standard of criminal sentences. The crisis of testimony in the criminal trial can be attributed to two factors. The first reason. The multiplication of protected witnesses on the trial scene. Figures who, as a sort of counterpart for their contribution to the assessment, require high, constant and diversified levels of protection: "fragile" and vulnerable people, minors, the mentally ill, witnesses of justice, or "anonymous" witnesses" (undercover agents). As we can see, as a rule, we are dealing with persons who usually testify against the accused. At the level of European and Italian law and jurisprudence the trend is clear. The needs of protection for these categories of witnesses result in a reduction in the number of hearings, and therefore the opportunities for dialectical confrontation between the accused and the witness. The may also result in the push to "personalization" of the methods used for that confrontation, by adapting it to the protection needs to be met. In some cases those forms of protection could be used to get more genuine information from the witness, but we also cannot underestimate the opposite risk of obtaining qualitatively less reliable statements: because they might too conditioned by those protection needs, precluding the defender of the accused the possibility of deepening some controversial points. The second reason. At the national and European political level, the idea now prevails that the speed of Criminal justice is the primary instrument by which to calibrate the standard of reliability and solidity of an economically advanced State. This mainstream perspective is the fruit of an exasperated and erroneous conception of the principle of the reasonable duration of the trial (Art. 6 par. 1 ECHR and Art. 111 par. 2 Italian Constitution). The time factor is now an absolute, apical and absorbing value in the Criminal trial, which seems capable of negatively impacting the quality of the witness evidence as well: we refer, in particular, to the recent so-called Cartabia Reform of the Italian Code of Criminal Procedure, where a weakening of the fundamental principle of immediacy is clearly perceptible. That is, the judge attending the construction of the oral evidence and the judge who must adopt the judgment must be the same. When the trial judge changes, the idea is that immediacy can be easily replaced by technology (the audiovisual recording of the testimony before the first judge and subsequent viewing of the recording by the new judge).

Contamination of forensic DNA evidence in the light of Hungarian court decisions – A review of 25 years

The evaluation of forensic DNA expert opinions (in some countries expert witness testimonies) and the way it affects criminal judgement is of paramount importance. We have selected one of the largest challenges when it comes to the evaluation of forensic DNA evidence, contamination of DNA samples, and examined how it influences the decisions judges make about the credibility of DNA evidence in Hungary.