High Court Decision Research Articles

LEGAL LIABILITY FOR UNAUTHORIZED MINING CRIMES (CASE STUDY OF BANDUNG HIGH COURT DECISION NUMBER 91/PID.SUS/2023/PT BDG)

This research aims to examine how regulations concerning Mining Permits for People (Izin Pertambangan Rakyat/IPR) are viewed from a legislative perspective and to analyze the legal considerations of judges when imposing criminal sentences on perpetrators of illegal mining based on Bandung High Court Decision Number 91/Pid.Sus/2023/PT BDG. The research methodology used is normative juridical research, which involves the analysis of secondary data or literature. The findings of this research are as follows: First, permits for mining activities in People’s Mining Areas (Wilayah Pertambangan Rakyat/WPR) with limited area and investment are known as People’s Mining Permits (IPR). Law No. 03 of 2020, which amends Law No. 04 of 2009 on Mineral and Coal Mining, and Government Regulation No. 25 of 2024, which amends Government Regulation No. 96 of 2021 on the Implementation of Mineral and Coal Mining Business Activities, include provisions on People’s Mining, as well as procedures and requirements for obtaining a People’s Mining Permit. Criminal sanctions and further penalties apply to those engaging in mining activities without authorization. Article 158 and Article 164 of Law No. 03 of 2020 concerning the Amendment to Law No. 04 of 2009 on Mineral and Coal Mining contain these provisions. Second, the appeal was based on the fact that the panel of judges at the first level failed to carefully analyze the objections and misinterpreted the indictment articles based on the defense notes and evidence presented by the defendants. Article 158 of Law No. 03 of 2020, in conjunction with Article 55 Paragraph (1) of the Indonesian Penal Code, was a significant consideration for the judges in evaluating the first alternative indictment. According to the judges, this indictment was appropriate and accurate. Concerning the second indictment, Article 107(a) of Law No. 39 of 2014 on Plantations, in conjunction with Article 55 Paragraph (1) of the Penal Code, the High Court Judge stated that the Cibadak District Court Decision Number 365/Pid.Sus/2022/PN Cbd was not entirely accurate. The author argues that in interpreting and establishing Article 158 of Law No. 3 of 2020, which amends Law No. 4 of 2009 on Mineral and Coal Mining, the Public Prosecutor’s demands and the content of the indictment were incorrect.

Public (In)Tolerance of Government Non‐Compliance with High Court Decisions

Governments‐ compliance with high court decisions is a critical factor affecting judicial independence, power, and legitimacy. Under what conditions do citizens tolerate incumbent non‐compliance with apex court decisions? Some theories yield predictions that government supporters will be more tolerant towards non‐compliance, while others assert that citizens may value judicial review irrespective of their political preferences. Although the underlying logic of both arguments is plausible, the contexts that shape citizens‐ non‐compliance preferences are not well identified. Focusing on the moderating effect of elite behavior and contextual factors, we demonstrate that supporters of incumbent governments are more tolerant of government non‐compliance in the years following high-profile shows of interbranch attacks or government disregard of high court decisions, and in environments where the media is lacking independence.

NZYQ and constitutional culture

The political and social reaction to the High Court's decision in NZYQ is evidence of a deficit of constitutional culture in Australia: there has been a race to the bottom in public debate. This is against the background of the failed Voice referendum. Possible ways forward are discussed, and France is mentioned as counterpoint on the issue of constitutional culture.

Grand Sulthan As The Basis For The Transfer Of Land Rights In Tebing Tinggi City

The transfer of land rights is a legal event/action that results in the transfer of rights from one legal subject to another legal subject, thereby causing the loss of authority over the land. Land transfer refers to the process or action that changes land ownership from one party to another. This can occur through a variety of means, including sale, inheritance, gift, or voluntary or forced surrender. For example, if someone sells a house to someone else, that is a transfer of land. This research includes normative legal research, so the legal materials used are primary, secondary and tertiary legal materials. The technique for collecting legal materials that will be used as a source in this research is library research, namely collecting legal materials by reading statutory regulations, official documents, journals, articles from the internet, and other literature that is closely related to The issues discussed are based on secondary legal materials. Transfer of land rights is a right to transfer land rights from an individual to a legal entity. Legal transitions usually occur due to legal acts and legal events. The implementation of the transfer of land rights can occur due to transfer or transfer. Switching, for example due to inheritance of Decision Number. 13/Pdt.G/2020/Pn Tbt The Panel of Judges rejected the Defendants' exception in its entirety in the main case, rejecting the plaintiff's claim in its entirety. Decision Number 422/Pdt/2020/PT Mdn that accepts the bandi application from the Comparator's Attorney for the original Plaintiff based on the Decision of the Tebing Tinggi District Court Number 13/Pdt.G/2020/Pn Tbt, dated 20 July 2020 which is appealed in the exception and rejects the exception Appellee 1 and Appellee II, in the main case, canceled the decision of the Tebing Tinggi District Court which was appealed. At the cassation level, Decision Number 1928 K/Pdt/2021, namely granting the cassation petition from the cassation applicants consisting of the Chair of the Community Empowerment Institution, formerly the Community Social Institution, represented by Iskandar and Lalang Village, Rambutan District, Tebing Tinggi City, represented by Lura Adi Supeno, thereby canceling the Medan High Court Decision Number 422/PDT/2020/PT Medan and dated 21 October 2020 which annulled the Decision of the Tebing Tinggi District Court Number 13/Pdt.G/2020/PN TBT dated 20 July 2020.

Compensation for cultural loss in Indigenous Australia

The issue of compensation for harm to Indigenous culture is increasingly prominent in Australian society, given the High Court's landmark decision in Northern Territory v Griffiths (2019). The High Court sought to assess the meaning of cultural loss from Indigenous testimony and ‘translate the spiritual hurt from the compensable acts into compensation’. The destruction of Juukan Gorge in Western Australia's Pilbara region in 2020 also prompted efforts to assess, evaluate and remedy the harm Puutu Kunti Kurrama and Pinikura peoples suffered. Parallel debates about treaties have also raised the possibility of reparations for colonization. This article considers the challenges these legal and political developments pose for anthropology in Australia, where scholars have avoided discussing the concept of cultural loss for a generation.

국가배상청구소송에서 “객관적 정당성” 존부 판단의 최근 동향과 전망

The Supreme Court Decision 2018Da212610, August 30, 2022(“The Decision”) has garnered attention not only for its conclusion but also for its specific contents and methodology regarding the judgment of “objective justification criteria.” This article sheds light on the possibility of developments in “Objective Justification Criteria” in State Compensation Lawsuits, centering on the analysis of precedents before and after “The Decision”. This article divides Supreme Court’s state compensation cases before and after “The Decision” into those that scrutinize the judgment of “objective justification” and those that do not and confirms whether there have been substantive changes of legal doctrine in judging state compensation liability. Additionally, This article examines Seoul High Court Decision 2016Na2086563, February 6, 2024 which is a landmark judgment in “Humidifier Disinfectant” cases, centering on the similarity as “The Decision” and the possibility of development of legal doctrine in state compensation lawsuits. In conclusion, this article emphasizes the need of examination whether the speciality of legal doctrine and methodology of “The Decision” could be extended in cases such as “safety management obligations of state” cases, like “Humidifier Disinfectant” case and “Itaewon” case.

ANALISA YURIDIS TERHADAP PENERBITAN FAKTUR FIKTIF

The embodiment of the Indonesian State in providing prosperity to its nation as mandated in the 1945 Constitution of the Republic of Indonesia is by collecting taxes which are used to provide support for national development. However, along the way, collecting taxes from taxpayers is not easy because the existing tax compliance is still low. So that fraudulent acts emerge which lead to criminal acts, one of which is the issuance and/or use of tax invoices that are not in accordance with ongoing transactions. Therefore, this research will examine the criminal liability of corporations as users of fictitious tax invoices in tax crimes and how judges consider fictitious invoices in cases in the Semarang High Court Decision Number 258/PID/2021/PT.SMR. Because this research is legal research, the approach used is a conceptual approach which is based on the concept of tax development and tax crime supported by a statutory approach such as being based on the Director General of Taxes' regulations and general tax provisions.

Significant UK Environmental Law Cases 2023–24

Abstract This case law overview comments on significant UK environmental law cases for the period 1 April 2023–31 March 2024 (with one exception where a High Court decision within that period was overturned on appeal just after it). It begins with an overarching introduction, which draws some general themes from our selection of cases, focussing on the breadth of environmental law and issues of public concern in public and private law disputes. It then addresses 12 significant cases concerning the accrual of causes of action in private nuisance, whether there is power to vary abatement notices in respect of statutory nuisances, climate change, habitats, flooding, cumulative environmental impact assessment, river basin management plans, storm overflow discharge reduction plans, Regulators’ Codes, and public rights on Dartmoor Commons. It ends with some final thoughts on this year’s cases and the year ahead.

Vicarious trauma among legal practitioners and judicial officers

The term ‘vicarious trauma’ refers to a range of cumulative and harmful effects from exposure to the trauma of others and is now recognised as a category of causation in the diagnostic criteria of post-traumatic stress disorder. Legal practitioners may be exposed to the risk of harm from vicarious trauma in a number of occupational contexts. This article reviews recent case authority, including a 2023 prosecution of Court Services Victoria for failing to provide a safe workplace in the Coroners Court of Victoria and the High Court decision in Kozarov v Victoria (2022) and the Victoria Court of Appeal decision in Bersee v Victoria (2022). It considers measures that should be taken to provide a workplace for both legal practitioners and judicial officers that is as safe and without risks to health as is reasonably practicable.

The Role of High Religious Courts in The Bengkulu Area in Safeguarding Children's Interests Regarding Post-Divorce Living Expenses and Civil Rights

This research aims to examine the legal process carried out by the Bengkulu Religious High Court in ensuring the living expenses of children after their parents' divorce. This study is qualitative research with a normative legal approach. Primary data comes from laws, court decisions related to children's rights post-divorce, and children's civil rights, while secondary data is obtained from books, online media, and journals with the same relevance. In exercising its authority, the Bengkulu Religious High Court prioritizes the principle of justice by maintaining the interests of the child, as well as the principles of balance and proportionality. However, there are several challenges such as the lack of public understanding of children's rights and obstacles in the implementation of Religious High Court decisions regarding the enforcement of children's civil rights. More intensive efforts are needed to provide the public with an understanding of children's rights and to improve the quality of enforcement of Religious High Court decisions to ensure optimal protection of the child's interests following their parents' divorce.

Examining BA v The King: Can a ‘home’ provide security from domestic violence?

This article examines the High Court decision in BA v The King, which involved the relationship between tenancy law and the criminal offence of burglary. It argues that the Court should have given greater weight to the safety of victims of domestic violence, rather than privileging the rights of the accused under tenancy law.

How Does the High Court Interpret the Constitution? A Qualitative Analysis between 2019–21

Theorists of legal interpretation often argue that their theory describes or fits well with legal practice without using empirical evidence to support such claims. In this article, we provide a proof of concept for how such claims can be established using Critical Discourse Analysis – a qualitative method of coding texts – as applied to High Court decisions. Particularly, we assess whether a slightly modified version of Philip Bobbitt’s theory of constitutional modalities can be used to describe Australian constitutional interpretation working backwards from the start date of the project in August 2021. We find that Bobbitt’s modalities were used by High Court judges in the period studied. Predominantly, the High Court used the doctrinal modality supplemented strongly by textual and structural modalities. The ubiquitous use of doctrine to interpret the Australian Constitution in the period studied suggests a need for a greater understanding of doctrine as an interpretive modality.

EVALUATING THE ADMINISTRATION OF JUSTICE AND ABUSE OF PROCESS: A CRITICAL ANALYSIS OF THE MARIANA JURISDICTION CHALLENGE [2022] AND THE EUROPEAN SYSTEM OF LAW FOR CIVIL AND COMMERCIAL MATTERS FOR A THIRD STATE

Background: This research critically analyses the jurisdictional challenges and their implications for the proper administration of justice in the case of Mariana vs. BHP Group [2022] EWCA Civ 951. The legal route taken by the High Court of Appeal is examined, considering both the proceedings in the UK (pre-Brexit) and a third state (Brazil). This text examines the impact of the European legal framework on EU member states and evaluates the approach of UK towards Article 34 of the Brussels Regulation. The analysis examines whether pursuing damages based in civil or commercial liability suffered by victims domiciled in a Third State through European jurisdiction is appropriate. Methods: The study employs a case law analysis, supported by doctrinal legal research methodology, to systematically examine the balance of the principle of forum non conveniens and the consistent application of the Brussels Regulation in the Mariana Case. This is a critical review of the UK High Court's decision to overturn Judge Turner's ruling. The review emphasizes the adherence to historical national precedents, European Union Law, and the European Court of Justice's previous rulings against the United Kingdom's strike-out legal technique. The article explores the complexities of administering justice, focusing on the interplay between case management discretion, the principle of proportionality, and the court's responsibility to ensure a fair trial. It analyses the impact of factors such as the court's structure, case complexity, and the time required for resolution within this framework, while also considering the court's duty to administer justice effectively. . Results and Conclusions: The study's findings enhance comprehension of jurisdiction challenges in transnational litigations within the European Legal System and their implications for the proper administration of justice. The article recommends a balanced approach that upholds the substantial rights of claimants while aligning national practices with EU civil liability standards, promoting judicial harmony in transnational civil and commercial liability cases in the European Union.

United Kingdom Patent Decisions 2023

This report highlights a selection of the most important UK patent decisions from 2023, including: one Supreme Court judgment dealing with artificial intelligence; five Court of Appeal judgments (one relating to confidential information, one dealing with plausibility, two dealing with patent revocations and one addressing unjustified threats); seven Patents Court judgments (two undertaking a FRAND determination, one dealing with FRAND generally, three patent revocations and one dealing with experts’ duties); and one High Court decision from the Chancery Division regarding artificial intelligence.

Normative juridical analysis of strict liability in environmental cases

The Indonesian Supreme Court rejected the cassation and imposed a fine of IDR 199 billion on PT. Rambang Agro Jaya (RAJ), a subsidiary of Malaysia’s Kulim Berhad, for a 500-hectare forest and land fire case in Ogan Komering Ilir Regency, South Sumatra. This study aims to conduct a normative juridical analysis of the courts’ decision, holding PT. Rambang Agro Jaya was strictly liable for the environmental damage caused by the fire. The research reveals: (1) Central Jakarta District Court Decision No. 445/Pdt.G/2019/PN Jkt.Pst establishes strict liability and orders the Defendant to pay material losses totaling IDR 137.57 billion. (2) Jakarta High Court Decision No. 398/PDT/2021/PT DKI upholds the Central Jakarta District Court’s decision, reinforcing strict liability and increasing the total compensation to IDR 199.57 billion. (3) Supreme Court Decision No. 2196 K/PDT/2022 rejects PT. Rambang Agro Jaya’s cassation confirmed the Defendant’s unlawful actions and strict liability and imposed a material loss compensation of IDR 199.57 billion. The rulings signify a progressive step in enforcing environmental responsibility, with the substantial fine signaling a strict stance against ecological violations. The Supreme Court’s consistent rejection of cassation strengthens legal certainty and establishes a robust legal precedent for similar future cases, and underscores the significance of corporate accountability in promoting environmental sustainability.

Recognising form through function in the context of integrating the bride requirement in customary marriages in South Africa

In previous scholarship we argued how the state and courts have tended to favour a formal or definitional approach to customary marriages in South Africa, leaving vulnerable parties, particularly women, not adequately protected. In this article we focus on a new approach emerging from the courts, particularly relating to the integration of the bride as a requirement for the validity of a customary marriage. While we affirm the courts' emerging approach regarding integration, we take issue with the language used by the courts, particularly that relating to the word 'waiver'. In considering the recent South African Supreme Court of Appeal decisions on integration, and the High Court decisions that have followed, we believe the courts are in fact not waiving the requirement, but recognising that the requirement of integration may be met in another way. In considering these cases, although the court does not explicitly rely on Ramose's 'social acceptance' thesis as to the validity of law, we believe that adopting this approach will do much to assuage concerns about courts ignoring custom. More importantly, Ramose's 'social acceptance' theory gives credit to living customary law as a legal system which, as widely observed, promotes the very values on which the Constitution is founded. We also believe that Ramose's approach is a much more balanced approach in this context than a typically Western approach that promotes certainty over the protection of vulnerable parties, and represents the very evolving nature of living customary marriage laws and practices.

TINJAUAN HUKUM PEMBUKTIAN TERHADAP PENYELESAIAN SENGKETA PERALIHAN STATUS HARTA PUSAKO RENDAH MENJADI HARTA PUSAKO TINGGI DI PENGADILAN

The aim of this research is to test whether the considerations of judges who decide on customary land disputes in Minangkabau are perfect enough in assessing whether a land object is an implant asset, namely a low pusako which is inserted into a high pusako. This research is a case study with a review of the Law of Evidence of the Padang High Court Decision No.121/PDT/2023/PT.PDG in resolving the dispute over the transfer of the status of Pusako Tinggi assets to Pusako Tinggi assets. This research is research using a normative juridical approach, namely legal research that uses secondary data sources obtained from library materials. The research results show that the conditions that must be met so that the status of low pusako assets can be changed to high pusako are 1. There has been inheritance or maintenance from generation to generation for 3 (three) to 4 (four) generations; 2. The origin of ownership of the property is no longer in question or in other words there is no dispute regarding who has the right to the property. Regarding the legal review of evidence regarding the judge's considerations in the Padang High Court Decision No. 121/PDT//2023/PT.PDG is the possibility of negligence or error by the judge in applying imperfect evidence law.

Enforcement of Fisheries Criminal Laws in the Field of Fish Catching and Processing Based on Law Number 45 of 2009 Concerning Fisheries (Case Study of Medan High Court Decision Number: 754/PID.SUS/2015/PT-MDN)

The independent and sovereign state of Indonesia has sovereignty and jurisdiction over Indonesian territorial waters as well as the authority to determine provisions regarding the utilization of fish resources, both for fishing and fish cultivation activities while increasing prosperity and justice for maximum utilization in the interests of the nation and state while maintaining pay attention to the principles of preserving fish resources and the environment as well as the sustainability of national fisheries development. Fisheries have an important and strategic role in national economic development, especially in increasing the expansion of employment opportunities, equal distribution of income, and improving the standard of living of the nation in general, small fishermen, small fish farmers, and business actors in the fisheries sector while maintaining the environment, sustainability, and availability of fish resources. In Indonesia, according to Republic of Indonesia Law Number 9 of 1985 and Republic of Indonesia Law Number 31 of 2004, activities included in fisheries start from pre-production, production, processing to marketing which are carried out in a fisheries business system. In the fishing business, fisheries crimes often occur, so it is necessary to enforce the law on fisheries crimes based on Law Number 31 of 2004 and Law Number 45 of 2009

Director's Accountability for the Company's Sales Results and Commissioner's Actions in Asset Recovery

This study examines directors’ accountability for company sales results and commissioners’ actions in asset recovery regarding an embezzlement case involving Conti Chandra, a Director at PT. Bangun Mega Semesta (BMS) in Hotel Batam City Condotel (BCC). Relevant court decisions include Supreme Court Decision No. 567K/PID/2016, Pekanbaru High Court Decision No. 212/Pid.B/2015, and Batam District Court Decision No. 321/Pid.B/2015. It focuses on two main issues: corporate managers’ accountability based on Law No. 40 of 2007 on limited liability companies and criminal liability for “embezzlement crime in position” within a limited liability company. The study uses a normative legal research method with a descriptive approach, relying on secondary data and qualitative analysis. Findings indicate corporate managers’ accountability during general meetings of shareholders. Criminal liability for embezzlement relates to directors’ fiduciary duty to shareholders, requiring prudence, responsibility, and good faith. Two recommendations are proposed: First, The Indonesian government should revise the limited liability company law on holding directors and commissioners accountable for neglecting management and supervision duties and emphasizing fiduciary duty. Second, the Directors of Batam City Condotel should adhere to fiduciary duty principles under the board of commissioners’ supervision.
 Keywords: commissioners actions, directors, embezzlement

Правовые проблемы возобновления производства по уголовному делу ввиду новых или вновь открывшихся обстоятельств

The relevance of the research topic is due to the existence of problems in the institution of reopening criminal proceedings due to new or newly discovered circumstances and the need to reform this area of legal relations. The goal is determined by the updating of unresolved issues of the institution of reopening criminal proceedings due to new or newly discovered circumstances. The objectives of the study are to determine the development trends of the institution under study, identify the legal contradictions that exist in it and develop proposals and recommendations for their elimination. The work used classical methods of legal research: analysis, synthesis, study of judicial practice, formal logic. Based on an analysis of the norms of criminal procedure law, decisions of higher courts and law enforcement practice, a conclusion was made about the need to reform the institution of reopening criminal proceedings in view of new or newly discovered circumstances. The conclusion is substantiated about the need to legislatively establish the terms for the prosecutor to conduct an inspection, the results of which serve to make a decision on the resumption of the relevant proceedings or on the refusal to do so. The need to reform the institution of resuming criminal proceedings and bringing the norms of the Code of Criminal Procedure of the Russian Federation in line with their constitutional meaning has been proven by eliminating existing legal gaps through amending Chapter 49 of the Code of Criminal Procedure of the Russian Federation.