Court Judges Research Articles

Az 1983. évi Codex Iuris Canonici házasságok érvénytelenségét kinyilvánító peres eljárásainak gyakori jogcímei a kortárs bírósági gyakorlat fényében

This study reports on the matrimonial litigation proceedings of contemporary cases. Standing based on the method of legal comparison, it is possible to investigate the substantive matrimonial law of a sovereign legal system, primarily from the aspect of practice. The author primarily wishes to share his own practical experiences with the professional reader. The reform of the Codex Iuris Canonici is based on the theological reform of the Second Vatican Council, which placed pastoral aspects before jurisprudential aspects, thus the resulting Code (1983) also looks at the institution of marriage through the lens of a love relationship, not denying the contractual nature, but not emphasizing it either. Nowadays, most court proceedings are typically run on three legal grounds, so the study is limited to describing them. The presentation relies on three sources: the judgments of a local ecclesiastical court, canonical publications, and the opinions of the Rota Romana.

Embassy of Foreign Country as Employer Subject to Severance Payment Obligations

This research examines the employment agreements between foreign state representatives and local workers that are not related to diplomatic functions and therefore do not enjoy diplomatic immunity. While industrial relations disputes typically arise between workers and company management, there have been instances of labor disputes between workers and foreign state representatives. This creates a connection between Indonesia's legal system and the principle of diplomatic immunity in international law. Despite Indonesia's ratification of the Vienna Conventions of 1961 and 1963 through Law No. 1 of 1982, there is currently no specific national legislation governing privileges and immunities. As a result, labor disputes involving diplomatic immunity are dependent on court judgments. The focus of this research is on the severance payment obligations stipulated in labor laws and the responsibility of foreign embassies as employers in Indonesia to make severance payments. The research methodology employed is normative research with a legislative approach. Through qualitative data analysis, the following conclusions were drawn: First, the existence of pension programs does not automatically negate the right to severance pay that workers should receive upon reaching retirement age. Second, the Employment Law is inconsistent in regulating severance payments and pension guarantees as they were initially regulated separately.

Access to healthcare for people living with HIV: an analysis of judgments of the European Court of Human Rights from an ethical perspective.

Although HIV has been part of our reality for over 30 years, people living with HIV (PLHIV) still experience restrictions regarding their access to healthcare. This poses a significant ethical problem, especially as it endangers achieving the goal of ending the HIV epidemic worldwide. The aim of this paper is to analyze the rulings of the European Court of Human Rights (ECtHR) regarding cases where PLHIV experienced restrictions on their access to healthcare. We conducted an analysis of the ECtHR database and were able to identify N = 28 cases dealing with restricted access to healthcare for PLHIV. A descriptive and thematic analysis was conducted to identify ways in which access to healthcare for PLHIV was restricted. We were able to identify a total of four main categories, with denial of adequate therapeutic support as the main category with N = 22 cases (78.57%). Most of the judgments examined were filed against Russia (N = 12, 42.86%) and Ukraine (N = 9, 32.14%). A large proportion of PLHIV in the cases studied (N = 57, 85.07%) were detainees. The analysis shows a clear condemnation of limited access to healthcare for PLHIV by the ECtHR. Ethical implications of the analyzed cases are discussed in detail.

Google Android: Behavioural Theories of Harm in the Light of New Judgments and Regulatory Tools

This contribution takes a look at the recent Google Android judgement of the General Court as a case study of antitrust informed by behavioural economics – the study of not fully rational economic agents. It contrasts the General Court’s pragmatic approach to economic evidence to the U.S. Supreme Court’s willingness to delve into economic theory, where the latter can prove more of an obstacle to the development of behavioural antitrust. It further concedes that cases relying on behavioural theories of harm can prove to be less predictable from a legal standpoint. This, nevertheless, does not obviate older legal tests, which might just need to be reformulated as requiring an analysis of effects, in line with the General Court’s rhetoric on the necessity to avoid false convictions in such cases. Lastly, the contribution argues that the relevance of behavioural antitrust will not fade in its entirety with new regulatory tools addressing similar issues.

These are not the Decisions you are Looking For—The Courts’ Duty to Follow Binding Precedent

The doctrine of judicial precedent directs courts to use past hierarchically binding decisions as settled points for determining current disputes. The inherent nature and application of the doctrine, as an intrinsic part of the common law, continued after the advent of the Constitution of the Republic of South Africa in 1996. The Constitutional Court and the Supreme Court of Appeal acknowledged the value of the doctrine in the South African constitutional democracy. At the same time, numerous other scholars commented on the doctrine’s merits, benefits, and failures. The endorsement of the doctrine as an established fundamental source of law should imply that its application is understood and generally accepted in practice. However, the virtues of the doctrine are not always self-evident to a judicial officer constrained by a precedent perceived as incorrect or inappropriate. This article deals with the apparent failure of the High Court in specific judgments to follow binding precedent. The article accordingly evaluates three recent judgments of the Constitutional Court wherein that court expressed its concern with the lower courts’ perceived failure to follow precedents or explain why they are distinguishable. The article also comments on the doctrine’s historical application and current justifications.

Rape-By-Deception in China: A Messy But Pragmatically Desirable Criminal Law

China’s Criminal Law defines rape to include circumstances where a perpetrator “by violence, coercion, or any other means rapes a woman.” We critically investigate whether and how this provision is applicable to the use of deception to obtain sexual intercourse, and make three contributions. First, through a quantitative and qualitative analysis of contemporaneous scholarly commentary and a systematic survey of court judgments from 2015 to 2020, we demonstrate that religious fraudulent sex, medical fraudulent sex, and impersonation of intimate partners are punished as rape in China. Second, we argue that the current Chinese law is normatively desirable vis-à-vis the general consensus among scholarly commentary and legal practices elsewhere. Third, we highlight the unique starting point of Chinese sexual offenses provisions as compared to both common law and civil law jurisdictions, and explain how this “blank slate” contributed to a legal evolution process that prioritizes attaining desired legal outcomes at the expense of neat, coherent principles. More broadly, our case study of China challenges the prevailing assumption in English-language literature that civil law jurisdictions are less receptive towards fraudulent sex criminalization. It also cautions against the practice of reviewing statutory provisions in isolation when determining the substantive law of civil law jurisdictions.

CRIMINAL GROUPS – CRIMINOLOGY AND SECURITY PERSPECTIVES (CASE STUDY: BOSNIA AND HERZEGOVINA)

This paper analyses court cases which qualified as organised crime in Bosnia and Herzegovina (B&H). The final judgments were analysed according to the following criteria: the number of defendants; the continuity of membership within the crime organisation; the existence of criminal structure; the existence of a developed plan of activities; the type and number of the offences committed; influence on public authorities, the judiciary, and citizens; and sentences imposed on the defendants. This paper seeks to identify the extent to which court judgments are based on these criteria. A secondary analysis of the data related to the organised crime cases heard in the Court of Bosnia and Herzegovina in the period between 2015 and 2018 was conducted. This analysis encompassed 21 organised crime cases in which 27 judgments were pronounced. In the observed period (2015-2018), we identified two organised criminal groups that meet the criteria analysed. The identified number of organised criminal groups is minimal in relation to the total number of organised crime cases processed. Our findings contradict the prevailing view in public discourse that organised crime is a widespread security threat in BiH. The findings of our research demonstrated the existence of legal gaps, reflected in the lack of clear criteria on the basis of which OCGs can be distinguish from other forms of criminal activity. Legal and institutional weaknesses create opportunities for OCGs to operate and create a sense of insecurity among citizens in the already complex security environment in B&H.

Constitutional Design and the Seeds of Degradation in Divided Societies: The Case of Bosnia-Herzegovina

Constitutional design – Constitutional degradation – Power sharing – The rule of law – Constitutionalism – Constitution making – Constitutional transition – Divided societies – Role of internal diversity – Bosnia-Herzegovina – Inherent degradation – Dynamic degradation – European Court of Human Rights – Sejdić and Finci – Constitutional Court of Bosnia-Herzegovina – Compliance issues with court judgments – Repression of the public sphere – Electoral discrimination of national minorities – High Representative – Lack of local ownership

A Study on the Inheritance and Equality of Succession Right of the Ancestor Worship Guild─Commentary on No.1 Judgment of the Constitution Court in 2023

A Study on the Inheritance and Equality of Succession Right of the Ancestor Worship Guild─Commentary on No.1 Judgment of the Constitution Court in 2023

The Application of Tax Refund Articles in Land Tax Act for Land Reacquisition within Two Years: A Case Study of the Supreme Administrative Court Judgement in 110, Case No. Shang 85

The Application of Tax Refund Articles in Land Tax Act for Land Reacquisition within Two Years: A Case Study of the Supreme Administrative Court Judgement in 110, Case No. Shang 85

A Study on the Estate tax Taxable Period for Real Estate Registered in Borrowed Names: Comment on the Supreme Administrative Court Judgment No. 553 in 2020

A Study on the Estate tax Taxable Period for Real Estate Registered in Borrowed Names: Comment on the Supreme Administrative Court Judgment No. 553 in 2020

Characteristics of Collusive Practices in Bidding: Mixed Methods Study in China

Over the past decade, collusive bidding has become more complicated with the development of economies and computer technologies. Understanding the emerging characteristics of collusive bidding helps antitrust authorities advance countermeasures to mitigate such illegal business competition. This study extracted data from 2,007 court judgment documents in China through text mining techniques. Using two-dimensional factors (i.e., project- and colluder-related factors), we performed an effect size-based significance test to demonstrate the new features of collusive practices. The study found that the larger the project size, the more complex the collusive bidding process. In addition, frequent communication between those collusive bidders stemming from adjacent provinces boosts the similarity of collusive biddings between regions. Furthermore, the study disclosed that senior colluders are more intended for those challenging collusive practices. The findings shed some light on feature determination when developing intelligent collusion detectors and offer implications for preventing collusive bidding.

A Study of the Legal Effects of Gender Equality Restoration under Rights of Successors in the Ancestor Worship Guild－Centered on Constitutional Court Judgment No. 1 of 112

A Study of the Legal Effects of Gender Equality Restoration under Rights of Successors in the Ancestor Worship Guild－Centered on Constitutional Court Judgment No. 1 of 112

Discussion over Transfer With or Without Compensation of Land Value Increment Tax: Analysis of Supreme Administrative Court Judgement (109) Shangzi No.704

Discussion over Transfer With or Without Compensation of Land Value Increment Tax: Analysis of Supreme Administrative Court Judgement (109) Shangzi No.704

What is Sexual about Sexual Violence?

Abstract Responding to the wider concern with how to understand the connections between sex and violence in the context of conflict-related sexual violence, this article examines how international criminal law constructs what is sexual about sexual violence. The article adopts a narrative expressivist approach to the knowledge generating effects of international criminal proceedings, using a discourse analysis of judgments and trial transcripts to demonstrate how ‘the sexual’ in sexual violence emerges in the judgments of international criminal courts primarily as a social question, in how sexual violence injures the conjugal order of the community to which victims belong. Drawing on the concept of sexual subjectivity, the article nevertheless reveals how some testimonies during the proceedings of international criminal trials go beyond this dominant narrative, offering instead a perspective that captures the specifically sexualized harm inflicted on individuals by sexual violation. The article ultimately exposes how the dominant narrative of sexual violence that emerges through the judgments of international criminal courts tends to overlook the injury to individual sexual subjectivity inflicted by sexual violence and, in doing so, functions to discount victims’ full subjectivity, including in their sexual lives.

주거침입죄에서 기망에 의한 출입승낙과 사실상 평온의 침해여부

The Supreme Court has emphasized the intention of the resident in determining a crime of intrusion upon habitation. However, in the Supreme Court's 2021. 9. 9. 2020Do12630 judgement, Supreme court ruled that it should be based on the objective and outwardly revealed behavior at the time of entry rather than the intent of resident. Since then, several judgements have been sentenced to different types of housing, including prisons, shared apartment units, private apartment units, retail stores, and restaurants. In particular, when an outsider with a criminal or illegal purpose receives permission to enter a housing or building using deceptive means, the Supreme Court previously recognized the establishment of a crime of intrusion upon habitation on the grounds of contrary to the will of residents and managers. But, the Supreme Court's 2018Do15213 judgement did not recognize the establishment of a crime of intrusion upon habitation in the case of entering a detention center by making the camera in the shape of a business card wallet to hide the existence of the camera. In addition, the Supreme Court's 2022Do1717 judgement did not admit the establishment of a crime of intrusion upon habitation in the case of entering a girlfriend’s house by attatching a camera to a TV with the purpose of filming her body. In both cases the supreme court denied the establishment of a crime of intrusion upon habitation, noting that there was the consent of each manager and resident. However, if there is an active deception, such as disguising it as an everyday object to hide the existence of criminal tools or disguising visitor’s identity, and if it is made as a means of obtaining permission to enter a housing or building, it is reasonable to evaluate it as an act that violates the actual tranquility of the house even though it does not reach the level of denying the effectiveness of the entry approval.

Automated system of court enforcement proceedings as element of information provision for compulsory enforcement of decisions

The aim of the article was to suggest ways to improve the legislation regulating the scope of operation of the automated system of judicial enforcement proceedings, in order to increase the effectiveness of enforced execution of decisions while respecting human rights. The methodology of the article was based on the application of the following methods of scientific cognition: analytical, deductive, hermeneutic, comparative and synthesis. In addition, the authors analyze the legal regulation of the operation of the automated system of execution of court judgments, as an element of information provision for the forced execution of resolutions and, at the same time, have revealed the gaps in its legal regulation and, consequently, have suggested the ways to eliminate them. It was definitely established that there was no need to amend the legislation concerning the distribution of enforcement documents among private enforcement officers within their districts of jurisdiction. In the conclusions it was offered to improve certain provisions of the Ukrainian legislation regulating the provision of information on compulsory enforcement of decisions, in particular, to give the prosecutor access to information on judicial enforcement proceedings on an equal footing with the parties.

A STUDY ON THE PENDENCY OF CASES IN INDIAN COURTS vis-à-vis HUMAN RIGHTS

In a progressive and developing society, one of the sound principle of the criminal justice system is that “Justice delayed is justice denied’. The delay in dispensation of justice adversely affects the two important fundamental rights which are, right to access justice and the rule of Law. Both are the part of the Indian Constitution. In various decisions, the Indian Supreme Court has under scored the importance of expeditious trial. Right to speedy trial is one of the facets of the Right to life and personal liberty under Article 212 of the constitution of India. According to the Ministry of law, there are nearly five crore cases are pending as of now in courts3. India is on the top in pending of cases across the globe. In spite of the establishment of the tribunals, the situation of pendency is becoming worse. There are various reasons which can be attributed to the situation of pendency of cases. Among them some are; awareness of the legal rights by the people, emergence of new ways of access to justice such as RTI and PIL, inadequate number of judges in courts. Government needs to take initiative in controlling the backlog of cases so that time justice could be imparted to all segments of the society. In present time, the pendency of cases is directly connected to the issue of human rights. Pendency of a case in the court of law endangers numerous human rights. This research paper attempts to examine the various loopholes which leads to the pendency of cases in Indian courts and violates the human rights

Examining the Investigative Capacity of the Ombudsman in Addressing Administrative Justice in Kenya

This study was conducted to assess the investigative capacity of the Commission on Administrative Justice (CAJ) also known as Office of the Ombudsman, Kenya, in ensuring administrative justice. The study appreciated that the core mandate of CAJ is to ensure administrative justice in the Kenyan public sector through investigating cases of maladministration. The study aimed to fill a gap where previous studies undertaken have focused on the general mandate of the institution whereas this study focused on its investigative mandate. The study adopts that a major determinant of the investigative capacity is the legal framework underpinning the Ombudsman. As such, the objective of the study was to examine how the legal framework underpinning the ombudsman investigative function affects its capacity to ensure administrative justice. The study was guided by the agency and accountability theories. The research was conducted at the Commission’s headquarters in Nairobi, Kenya and employed a descriptive study design. Data was collected through questionnaires to the respondents and an analysis of investigation records was also conducted. Census survey and purposive sampling were employed in selecting the respondents while probability sampling was employed in the selection of investigation records for analysis. Secondary data in form of reports, legal instruments, and court judgments were also reviewed and analysed. Statistical packages for social sciences as well as advanced excel were used to analyse quantitative data while qualitative data was analysed and arranged according to thematic areas. A spearman correlation test was undertaken and results indicated a positive relationship between investigative capacity of the Ombudsman and its achievement of administrative justice. The study found that the legal framework underpinning the ombudsman investigations is insufficient and in that regard it was recommended that the CAJ Act, 2011 be amended to empower the Ombudsman to enforce recommendations arising from its investigations. Keywords: Ombudsman, legal framework, administrative justice, investigative capacity

COVID-19 Vaccination and the Role of Informed Consent: England as a Case Study.

Informed consent (IC), following the Supreme Court judgment in Montgomery v Lanarkshire Health Board, [2015] UKSC 11, constitutes a key patients' right. There is a vast literature exploring the significance of this right, while an analysis of the role that this has played in England during the COVID-19 vaccine distribution has been under-explored. Using England as a case study, this paper argues that IC has received limited protection in the COVID-19 vaccination context of the adult population, upholding at its best only a minimalistic approach where mere 'consent' has been safeguarded. It suggests that new approaches should be brainstormed so as to more properly safeguard IC in a Montgomery-compliant-approach, namely in a way that enhances patients' autonomy and medical partnership, and also to better prepare and respond to future pandemics.