Internal Jurisdiction Research Articles

The Role of the Public Prosecution in Achieving Criminal Justice Within the International and Internal Jurisdiction

It is recognized that the function of the public prosecution is a function related to society, as whoever undertakes it works in the name of the community and aims for its interest represented in achieving social justice. After its issuance, and since the goal of achieving criminal justice is characterized by transcendence and comprehensiveness, which makes it not confined to a country or group of countries, but rather a goal that is universal, this leads to the fact that the international criminal justice,which operates under international law, seeks to reach it as well, which leads to the Public Prosecution at the level of The international criminal judiciary has a role to play on the path to achieving that goal, just as the public prosecutor in the internal judiciary of countries has an important role to play in the same context

Where do data sovereignty security risks come from?-Production perspective based on social reproduction

As a new factor of production, data has been rapidly integrated into all aspects of production, distribution, circulation, consumption and social service management, and has had a profound impact on production methods, lifestyles and social governance methods. In essence, data, as a new factor of production, is the result of the contradictory movement of productivity and production relations in the process of economic development in the digital economy era. It is also the reconstruction of productivity and production relations in the digital era. While the digital industry and digital economy have become an important engine leading global economic growth and bringing huge dividends, data as a production factor is also accompanied by rising sovereign security risks. Taking the production of data elements in social reproduction as an entry point, we clarify the possible security risks of data as a new production factor in the production process, analyze the data sovereignty security risks derived from the security risks, and find that data sovereignty security risks breed when data elements participate in social reproduction. In the production process, there are challenges and threats to data sovereignty security such as internal jurisdiction and control rights owned by sovereign countries, as well as external rights to equality and independence. Therefore, it is necessary to accurately grasp the data sovereignty security risks that exist in the production process of social reproduction of data elements, and build new data production relationships to match the development characteristics of new productive forces, so as to prevent and resolve non-traditional security risks caused by sovereignty security.

The legitimacy of the Security Council in the humanitarian step in Syria

The international humanitarian intervention in Syria portrays the protection of civilians in armed conflicts and the overall international humanitarian law, especially the concerns of the security council which aims to reduce human rights violations suffered by the Syrian people. The difference between the definitions is that there are multiple reasons for maintaining international peace and security or humanitarian reasons that is, excessive violence against civilians and subsequent arbitrary arrests mass killings and displacement. Supporters and opponents have different views on international humanitarian intervention. As for the increase of the suffering of the Syrian people the security council is left with the problematic presence of coercion that limits the international humanitarian intervention, especially the sovereignty of the state and under the internal jurisdiction of the hand, and justifies the exclusion contained in the text of article 2/7 of the UN charter, which authorized intervention under chapter VII of the order to alleviate the suffering of the Syrian people as aresult of human rights violations.

CONSIDERATION UPON THE PROTECTION OF THE HUMAN RIGHTS

The purpose of the present article is to bring general information connected to the human rights. We all know the fact that in the traditional international law, the protection of the human rights through international actions was not to be found. The concept of the international law of the human rights appears only in the second half of the 20th century, and thus matters connected to acknowledging and respecting them become problems of international interest and they do not depend exclusively only on the internal jurisdiction of the states.Romania admitted, appreciated and regulated the citizen’s rights as well as the theories that argumented their existence and also it has ratified the majority of the universal and European treaties concerning the human rights.

재산관계에 관한 국제재판관할법의 2022년 개정

In creating the new rules on international jurisdiction created in 2022, the drafters put an emphasis and focus on patrimonial matters. This led to an effort to provide for detailed and sophisticated rules as far as practicable. The legislative model was found in the 1999 Hague Preliminary Draft and the 2005 Hague Choice of Court Convention. So the new rules follow the continental European style of legislation. Concise provisions without detailed clarification were preferred.
 Naturally, the drafters sought to strictly limit each basis of jurisdiction, so as to stay away from exorbitant jurisdiction. Particularly notable is the broad limitation imposed on the place-of-performance jurisdiction for contract cases (Art. 41). A strict limitation was also introduced on the jurisdiction over related claims when they are filed against different defendants (Art. 6(2)).
 However, legislative clarification was not made throughout the amendment. In some places, the drafters minimized the breadth of legislative resolution and chose to defer difficult issues to interpretation. The prime example would be the criteria for establishing a habitual residence. Further limitation to tort jurisdiction at the place of harm, other than the condition of predictability, is also left to the academia and the courts. Establishing the rules of jurisdiction for internal matters of a trust was wholly left as a future task. Notwithstanding this legislative vacuum, the settlor should be allowed make a unilateral choice of forum, although this will be a point of debate.
 In some heads of jurisdiction, the drafters chose to expand the available grounds of jurisdiction, rather than trying to limit them. Justification was found in the realistic considerations and being an autonomous legislation. In this connection, particular attention was paid to the rules of internal jurisdiction provided in the Civil Procedure Act and the rules of international jurisdiction provided in the Japanese Civil Procedure Act as amended in 2011. Special jurisdiction at the place of “continuous and systematic activity” was newly introduced (Art. 4, para. 2); jurisdiction over related claims between the same parties was also preserved (Art. 6, para. 1); the bases of jurisdiction over counterclaims were even expanded, so that a connection with the defense will generally suffice (Art. 7); forum patrimonii as restricted by the “substantial connection” test was also preserved, taking into account the convenience of enforcement (Art. 5 ii); the place-of-performance jurisdiction was broadly preserved in the case characteristic performance is clearly defined (Art. 41, para. 1); contract jurisdiction is to be upheld without limitation at the place of performance (Art. 41, para. 2); no particular limitation is imposed on the contractual agreement over the place of delivery (Art. 41, para. 2), leaving open the possibility of allowing a fictitious agreement to some degree. The new law also sought to provide for sufficiently wide-ranging set of jurisdictional bases for special jurisdiction for contracts in intellectual property (Art. 38) and that for infringement of intellectual property (Art. 39).
 Forum patrimonii as limited by the substantial connect test (Art. 5 ii) and the forum non conveniens provision (Art. 12) deserve special attention, in that they leave a large room of discretion to judges. The two provisions has a potential to function positively by introducing flexibility. Meanwhile, they may end up hindering the interpretive development of sophisticated standards and greater uncertainty.
 Forum patrimonii, even functioning under the constraint of the “substantial connection” test, should only remain a final resort and play its proper function. An excessive use of this basis will cause stagnation of the further development of the Korean law of international jurisdiction, and will practically cause difficulty in having Korean judgments recognized and enforced abroad

International Jurisdiction in Maintenance -A Legislative Proposal-

Korean law lacks in a statutory provision on special jurisdiction over a maintenance obligation arising from family relationship. The question of international maintenance jurisdiction is left to interpretation under the general guidance clause of Article 2 of the Korean Private International Law. There is no dispute in acknowledging jurisdiction at the defendant s habitual residence (or domicile). In addition, jurisdiction might also be upheld at the place of performance and the place of defendant s property, as long as support cases could be characterized as proprietary cases in a broader sense. The current state of law falls short of being a desirable one, because the two following essential points need to be upheld but are not yet supported by clear authority. Firstly, a maintenance creditor, who will typically be a claimant, cannot sue in his or her own court. The place-of-performance jurisdiction should be limited to contract cases and comparable “civil and commercial” cases such as unjust enrichment. The obligation to provide monetary support arising from family relationship should be treated differently from a contractual or other proprietary obligation. Secondly, the location of property should be the last resort and its applicability should be appropriately limited. Place of property should not be allowed to serve as a basis of maintenance jurisdiction at all. Indeed, this controversial head of jurisdiction has no proper function to serve in the area of maintenance, because a maintenance creditor should be allowed to sue in his or her own court any way. Moreover, a maintenance creditor should also be protected from being sued in a mere place of property by a maintenance debtor. While it is theoretically possible to argue for the above set of rules under the current Article 2 of the Korean Private International Law, which looks to internal jurisdiction rules for guidance in a possibly selective way, it is not realistic to expect Korean case law to develop this way, considering their deep attachment to the room of manoever under Article 2 and their persistent efforts to broaden judicial discretion in this regard. This strange impasse between the legislative guidance and the judicial pursuit of institutional self-interest inevitably will lead anybody interested in this area to demand a legislative reform. There are a series of concrete issues for the Korean legislator to consider. Regarding the necessity of having a maintenance creditor s jurisdiction, no objection has yet been raised in past discussions in Korea. An issue of minor but delicate importance is which personal connecting factor to adopt in the statutory provision. The majority of legislations abroad indicate a depart from domicile and a converging trend toward habitual residence. The idea is that maintenance creditor should be allowed to sue at his or her habitual residence, without having to establish his domicile there. However, there may be practical value in upholding jurisdiction at the creditor s “domicile” as well as his or her habitual residence, because it may be easier for the creditor to prove his “domicile”. But one should also note that this residual role of “domicile”-based jurisdiction will only play a minor role. Therefore, the national legislator may perhaps be satisfied with defining maintenance creditor s jurisdiction in the state of his habitual residence. In addition to the maintenance creditor s habitual residence, it would be proper to admit a few other bases of jurisdiction. Here consideration should be given to the nature of maintenance claim. It is a claim that arises out of a family relationship, but once it is created, it takes the form of a monetary claim. On the one hand, maintenance claim is closely related to the family relationship from which maintenance obligation arises.

PRESENCE AS A BASIS FOR THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT SOUNDING IN MONEY: THE “REAL AND SUBSTANTIAL CONNECTION” TEST CONSIDERED

A somewhat contested basis of international competence in the recognition and enforcement of foreign judgments in South Africa is mere presence. Over the years, an academic debate has raged in South Africa over mere presence as a basis of jurisdiction for the enforcement of foreign judgments sounding in money. A recent decision by the Constitutional Court makes the topic worth revisiting.Practical circumstances, social and political considerations as well as natural justice inevitably call for the recognition and enforcement of foreign judgments. As Forsyth aptly puts it “[a] plaintiff may sue in one country and hear with pleasure judgment given in his favour, then discover, to his dismay, that the defendant, with his assets, has absconded to another country”. In such a situation, the judgment has become brutum fulmen in the court which pronounced it and the plaintiff is placed in a grossly prejudicial position. However, because of widely accepted values and principles, legal systems of the world recognize and appreciate that a judgment rendered by the courts of one country may be enforced elsewhere, provided certain conditions are satisfied.Under South African common law one of the conditions for the enforcement of foreign judgments is that the court which pronounced the judgment must have had jurisdiction to entertain the case according to the principles of our law with reference to the jurisdiction of foreign courts. (In Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W) 1037B the court stated that the mere fact that the foreign court may have had jurisdiction under its own laws, is not conclusive. Instead, the question of jurisdiction has to be determined in the light of the principles of our law on the jurisdiction of foreign courts. Other requirements for recognition and enforcement are that (i) the foreign judgment must be final and conclusive in its effect and not have become superannuated; (ii) the recognition and enforcement of the judgment by South African courts should not be contrary to public policy; (iii) the foreign judgment should not have been obtained by fraudulent means; (iv) the judgment must not involve the enforcement of a penal or revenue law of the foreign state; and (v) the enforcement of the foreign judgment must not be precluded by the provisions of the Protection of Business Act 99 of 1978, as amended. See Jones v Krok 1995 (1) SA 667 (AD) 685B−D.) This note is concerned only with the requirement that the foreign court that pronounced the judgment must have had jurisdiction to entertain the case according to the principles of our law with reference to the jurisdiction of foreign courts. The other four requirements are outside the scope of this paper and will not be discussed. It appears that the requirement that the foreign court must have had jurisdiction is a tenet central to the common law world. This requirement is a concept sui generis which is not affected by the internal jurisdiction rules of the foreign court, nor by the internal jurisdiction rules of the South African courts. Under South African common law there are, at least, two grounds which have been established with absolute clarity, that clothe a foreign court with international competence.

The Jurisdictional Competence for the Recognition of the Foreign Judgements Compliant to Regulation (EU) No. 1215/2012

A thorny problem of the Regulation (EU) no. 1215/2012 concerns the determination of the international and territorial jurisdiction in matters related to the recognition as the main issue of a foreign judicial decision issued by a member state of the European Union. Considering the procedure identity existing between solving the recognition requests of the foreign judicial decisions and the one of the applications for refusal of enforcement of the same decisions, to which we also add the provisions of art. 24 paragraph 5 of the regulation, we deduce that for the recognition of foreign judicial decisions, the exclusive international jurisdictional competence belongs to the state on whose territory that recognition is sought. The competent court to decide, as a main issue, on the recognition of a decision given by a Member State of the European Union shall be determined based on the internal jurisdiction provisions of specific to each member state (for Romania by an extensive interpretation of article 1099 Code of Civil Procedure). A possible remedy of this gap in the regulation may be to introduce a new paragraph within art. 36 of the regulation which may give exclusive jurisdiction on the recognition of a foreign judicial decision, claimed as the main issue, to the court of the member state which receives the application, a court from the category notified to the Commission by the Member State addressed enforcing art. 75 letter (a) of the regulation.

Principle of the State’s Sovereignty and the Phenomenon of Humanitarian Intervention Under Current International Law

The development of the principles of International Law, since the formulation of United Nations Charter in 1945, has taken direction towards intervening in many areas which were considered under the exclusive jurisdiction of the individual States, where many areas of the State’s internal jurisdiction became included the matters permitting International Bodies to intervene in the State’s internal affairs. Individual states become subject to the application of the principles of International Law. The ratification of many International treaties and the emergence of many International Principles dictated by the interaction and development of International Relations led to creation of new concepts and expressions to keep up with the changes witnessed by Modern International organizations. This was clearly reflected in the principle of equality of sovereignty and the phenomenon of humanitarian Intervention. The Charter, in accordance with this international trend of thought, imposed new conditions allowing for surpassing the principle of supremacy. It is sufficient, in connection to this matter, to make reference to Chapter seven of the Charter, or to the Declarations of Human Rights, which entitles the International Community to intervene in the affairs of any State which violates the stipulations of these conventions in light of commitments made by States to this Charter. This, in turn, affected the principles of current International Law and the internal jurisdiction of the State in content and practice. The right to humanitarian intervention became very evident in recent years following the Cold War. It is established that the United Nations Organization reflects a temporary universal opinion and the first job of which is represented in maintaining international Security and peace, as stipulated in Article One of its Charter, that the respect of human rights and basic liberties and the adherence to the principles of International Law is a basic condition to maintain International Security and peace, with respect to the strong relationship between them. In order to realize the objectives of the United Nations, it was inevitable for the States to work on organizing cases of international security and peace through surrounding their activities with a group of conditions and provisions, like abiding by principles of International Law and the commitment to international standards concerning human rights and one’s humanity. States which show no adherence to international legal standards, make surpassing the principle of sovereignty legally and morally justified in order to emphasize International Legitimacy, especially if that implies grave violations of Human Rights and International Commitments. For that, this study researches the concept of National Sovereignty included in Article VII paragraph II of the United Nations Charter and to what extent is it in harmony with principles of current international Law. Key words: National sovereignty; Humanitarian intervention; International jurisdiction

Las garantías judiciales. Análisis a partir de los estándares de la jurisprudencia de la corte interamericana de derechos humanos

<p>Se analizanlas garantías convencionales previstas en los artículos 8 y 25 de la Convención Americana sobre Derechos Humanos a la luz de la jurisprudencia de la Corte Interamericana.</p><p>El derecho a ser oído, a la presunción de inocencia, al juzgamiento en plazo razonable, a la acusación clara y determinada, al juez natural, constituyen connotaciones de las garantías convencionales previstas, especialmente, en la Convención que, además, se proyectan en un sinnúmero de aplicaciones concretas que la Corte ha señalado a través de los distintos casos juzgadospor ella y que le aportan un sentido específico. Se concluye que la Corte Interamericana de Derechos Humanos ha desarrollado un proceso de estandarización referente al plazo razonable de los procesos seguidos dentro de la jurisdicción interna de los países miembros, evitando la incertidumbre e inseguridad jurídica para las partes, así como se procurala uniformidad en el manejo de los tiempos procesales dentro de los ordenamientos jurídicos internos.</p>

On Jurisdiction Agreements from the Perspective of Pan-European Unification of International Procedural Law

In several European countries there is a system of rules governing the question of the international jurisdiction of the courts in civil law matters. Such rules are laid down either as a part of the law of civil procedure (such as in the Polish Law of Civil Procedure of 1964) or are prescribed within the framework of laws on private international law; examples of the latter system are the Czechoslovak Act on Private International Law and International Procedural Law of 1965, the Hungarian Act on Private International Law of 1979, the Yugoslav Act on Private International Law of 1982 and the Swiss Act on Private International Law of 1987. In other countries, e.g. in Germany, The Netherlands, Austria and France in regard to competence ordinaire , the rules on internal jurisdiction are applied, mutatis mutandis , to establish international jurisdiction. However, conventional law on international jurisdiction takes precedence over conflicting provisions of national law.

The urgent necessity for an all-encompassing ideal of re­form for South Africa 1

In view of the ironies of the realisation of the democratic ideal, which often do not answer to the exaggerated expectations of the participants, the idea of the regstaat is investigated as an overriding purpose or transcending value for reform in South Africa . Important facets emerge with regard to the concept of the regstaat in the legal and political development of the Greeks and Romans w ith the institutionalization of the idea th a t the state is a res publica, and especially the influence of the Roman ius gentium is visible in the legal and political development in Western Europe via the reception of Roman law in the development of the modern differentiated civil law which is based on the fundamental human rights of civil freedom and equality (independent of nationality, public legal status, race, religion etc.) of all people and all societal forms within the territory of the state. A study of the development of the regstaat in England indicates that the institutionalization of the concept of rule of law developed during the Glorious Revolution prior to the actual development of the individual political right of the English citizen. Through this it becomes clear that the institutionalization of the regstaat is not necessarily dependent on democracy. While the idea of democracy stresses political freedom and participation, the concept of rule of law goes much further and encompasses not only the sphere of public law (within which political rights constitute apart) but also the sphere of civil law and the curtailment of the power of government with respect to the sphere of internal jurisdiction of the non-state societal forms. Be­ cause of the problems which reform in South Africa faces, the emphasis on political participation for the immediate future can be counter-productive for the institutionalization of the regstaat. The concept of the regstaat which has to be incorporated in a declaration of intent will link reform in South Africa to crite ria of freedom which should be acceptable to all groups and individuals. With the concept of the regstaat as an ideal of reform which should also guide the immediate reforms of the present government, negotiations can be conducted in a more relaxed and less polarized situation - honestly and openly, not only with regard to its institutionalization but also with regard to an eventual time schedule.