Court Judges Research Articles

Future of Uniform Civil Code in India: Strategies for Effective Implementation and Social Acceptance

The Uniform Civil Code (UCC) remains a contentious and pivotal issue in India's legal and social discourse, aiming to unify personal laws across religious communities under a common civil code. This paper explores strategies for effectively implementing UCC while addressing challenges related to social acceptance in the diverse socio-cultural fabric of India. The introduction provides a comprehensive overview of the historical context and constitutional mandate of UCC under Article 44, highlighting its significance for promoting legal uniformity, gender equality, and social justice. The literature review synthesizes existing scholarship on UCC in India, examining legal precedents, policy debates, and public opinion. It identifies key challenges hindering UCC implementation, including constitutional complexities, religious diversity, federalism, and concerns about minority rights and cultural practices. Building on this foundation, the methodology outlines a qualitative approach incorporating analysis of legal documents, policy documents, court judgments, and insights from stakeholders and experts. It discusses the rationale for selected methodologies to address research questions effectively. Strategies for overcoming implementation challenges are proposed, encompassing legal reforms, public awareness campaigns, community consultations, engagement with religious leaders, and capacity-building for judiciary and legal professionals. These strategies aim to foster dialogue, understanding, and consensus among diverse communities. The paper also examines the role of education, media, civil society, and advocacy groups in promoting social acceptance of UCC. Case studies from other countries provide comparative insights into successful approaches to managing similar legal reforms.

Judgment of the Voivodeship Administrative Court in Szczecin of 12 October 2022 (I SA/Sz 416/22)

Judgment of the Voivodeship Administrative Court in Szczecin of 12 October 2022 (I SA/Sz 416/22)

Judgement of the Voivodship Administrative Court in Szczecin of 14 June 2023 (I SA/Sz 134/23)

Judgement of the Voivodship Administrative Court in Szczecin of 14 June 2023 (I SA/Sz 134/23)

The shareholder’s appraisal remedy under the Companies Act: How should the courts gauge ‘fair value’?

The appraisal remedy is the right of minority shareholders to demand that the company buy out their shares in cash, at a price reflecting their ‘fair value’, when they are aggrieved by certain triggering transactions that the majority shareholders have approved. The appraisal right is an American concept that was introduced into South African law when the Companies Act 71 of 2008 came into force. The most formidable challenge concerning the appraisal right is the meaning and interpretation of the key phrase ‘fair value’ and, coupled with this, the appropriate valuation methodology that the court ought to adopt when valuing the shares of dissenting minority shareholders. Two recent judgments of the High Court have considered these thorny issues for the first time. This article critically analyses the findings of the High Court in BNS Nominees (RF) (Pty) Ltd v Zeder Investments Ltd and BNS Nominees (RF) (Pty) Ltd v Arrowhead Properties Ltd, with a particular focus on the divergent approaches that the two cases adopt in gauging the ‘fair value’ of the dissenters’ shares and the judicial discretion to appoint an appraiser to value the shares. This is followed by a detailed discussion of the proper interpretation of the pivotal phrase ‘fair value’ in appraisal proceedings and of appraisal valuation methodology. This is done with reference to the legal position in comparable foreign jurisdictions such as the United States of America and Canada. Guidelines are also suggested for the South African courts to follow when gauging the ‘fair value’ of shares in appraisal cases.

The place of judgments of the European Court of Human Rights in the system of human rights protection

The place of judgments of the European Court of Human Rights in the system of human rights protection

Research on Income Taxation of Default Interest: Comment on the Supreme Administrative Court Judgment No. 112 in 2021

Research on Income Taxation of Default Interest: Comment on the Supreme Administrative Court Judgment No. 112 in 2021

Research and Reflection on the Thinking of Court Judgment in Shareholder Identity Negative Confirmation Litigation —From the Perspective of Bankruptcy Derivative Litigation

Research and Reflection on the Thinking of Court Judgment in Shareholder Identity Negative Confirmation Litigation —From the Perspective of Bankruptcy Derivative Litigation

Summary EU Court Judgments

Summary EU Court Judgments

Aantekeninge: Overview of constitutional court judgments on the bill of rights – 2023

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The Right of a Shareholder’s Spouse to Acquire Shareholder Status and the Role of a Court Judgment

The Right of a Shareholder’s Spouse to Acquire Shareholder Status and the Role of a Court Judgment

Enhancing the criminal justice response to human trafficking in South Africa: Legislation and case law in the spotlight

Human traffickers continually develop new tactics to trick and trap their victims, making human trafficking a complex and evolving crime that demands a robust criminal justice response. This response must be consistently refined to combat this pervasive crime effectively. In South Africa, the Prevention and Combating of Trafficking in Persons Act 7 of 2013 (Trafficking Act) came into force in 2015 to address the multifaceted crime. Now, after eight years, this article delves into the status of the counter-trafficking response, focusing on the efficacy of the anti-trafficking legislation and its implementation by the courts. It was found that, first, the Trafficking Act, as previously confirmed, complies with international minimum standards, and encompasses all forms of trafficking. Secondly, through the implementation and interpretation of this legislation, the courts have established jurisprudence on human trafficking, making a significant contribution to the criminal justice response. By reviewing case law spanning the period 2009 to 2023, this article aims to contribute novel insights to the existing body of knowledge, based on evidence tested in courts. Examining emerging case law, the article sheds light on various features of human trafficking within the criminal justice arena. It focuses specifically on the gravity and nature of human trafficking, penalties imposed by the courts, both domestic and cross-border trafficking, and new insights into various types of trafficking perpetrated within South Africa. Notably, court judgments increasingly offer binding and clarifying decisions. Case law has endorsed the only legally binding definition of human trafficking and provided interpretations of concepts in trafficking legislation. However, alongside the positive contributions of case law, the article also identifies legislative challenges. Consequently, recommendations are presented to enhance and fortify the criminal justice response to human trafficking in South Africa.

Fog to pyre: The impact of Supreme Court judgment complexity on dowry deaths

Fog to pyre: The impact of Supreme Court judgment complexity on dowry deaths

The (in)applicability of the law on commitments and delayed payments to municipalized services of a commercial nature (commentary on the Constitutional Court judgment no. 109/2015)

No início da segunda década deste século, a sustentabilidade do sistema financeiro público nacional e a assunção de novos compromissos internacionais por parte do Estado, no âmbito da vigência do Programa de Assistência Económica e Financeira celebrado com a União Europeia, o Fundo Monetário Internacional e o Banco Central Europeu, impuseram a criação de mecanismos de controlo da execução orçamental e da despesa pública aptos a assegurar o cumprimento das obrigações internacionais a que o país se tinha vinculado. Nesse sentido, foi aprovada a Lei n.o 8/2012, de 17 de março, designada por Lei dos Compromissos e dos Pagamentos em Atraso (LCPA), que “estabelece as regras aplicáveis à assunção de compromissos e aos pagamentos em atraso das entidades públicas”, e consequentemente é aprovado também o diploma que desenvolve as bases gerais e princípios da LPCA – o Decreto-Lei n.o 127/2012, de 21 de Junho. A LCPA vem restringir consideravelmente a capacidade de decisão financeira pública, e, no que concerne aos municípios, a respetiva autonomia financeira – consagrada nos artigos 6.o, n.o 1 e 235.o e seguintes da Constituição. E é neste contexto que se desenvolve o nosso trabalho, no qual se analisa o Acórdão do Tribunal Constitucional n.o 109/2015, bem como o Acórdão recorrido do Tribunal de Contas - n.o 2/2013, 1.a S/SS. A questão fundamental passa por saber se os serviços municipalizados com natureza mercantil estão ou não abrangidos pelo âmbito subjetivo de aplicação da LCPA e pelo diploma que a regulamenta. Como segunda questão surge também a necessidade de se aferir da inconstitucionalidade ou não dos normativos dos artigos 2.o da LPCA e do Decreto-Lei 127/2012, quando interpretados no sentido de se incluírem no respetivo âmbito de aplicação os serviços municipalizados com natureza mercantil. Os Acórdãos referidos do Tribunal de Contas e do Tribunal Constitucional (sob anotação) sustentam que a LCA e o diploma que a regulamenta abrangem os serviços municipalizados com natureza mercantil. A nossa posição é contrária a este entendimento, pois entendemos que não ser este constitucionalmente admissível, como procuramos fundamentar de seguida.

헌법상 가족 개념의 변화와 동성혼에 관한 논의

When societal conflicts rage over an important issue, such as those surrounding same-sex marriage, it is not easy to find a way to resolve them. In terms of democratic legitimacy, it is preferable for parliament to resolve the issue, but if that process does not work and human rights violations continue, the judicial process could resolve complex political issues rather than leaving them unresolved. Court judgments have emerged as a form of civil discourse linking judicial activism, social movements, and human rights movements. Additionally, civil discourse on law, rights, and justice is no longer the exclusive domain of experts because judicial decisions have become a catalyst of democratic communication between people and the state. Moreover, judicial dialogues play a positive role in overcoming the limitations of democratic institutions. For this reason, the active role of the courts is not incompatible with democratic principles but also enforces the active obligation of the state to address issues such as grave human rights violations caused by delayed political decision-making. The Same-Sex Marriage Act was passed by the German Federal Council (Bundesrat) on July 7, 2017, and was passed by both houses of parliament without constitutional amendments. This would not have been possible without the role of the Federal Constitutional Court of Germany. It has made a significant contribution by ensuring that the constitutional concept of family is interpreted more dynamically to reflect changing realities and by removing a number of discrimination surrounding marriage. A complete ban on same-sex marriage is hardly a necessary restriction. It is also contrary to the Law of Balancing as it is difficult for a state restricting individual freedoms and rights to justify the serious harm that same-sex couples would suffer as a result of a complete ban.

미성년 자녀의 불법행위에 대한 비양육친의 감독의무

When one of the parents is designated as the person with parental authority and caregiver, it is a question of whether the parent who does not have the duty to supervise the minor children can be recognized as a supervisor for torts of the minor children. Recently, the Supreme Court determined that non-custodial parents are not obligated to supervise torts of minor children unless there are special circumstances. The ruling set the first precedent on the issue of non-custodial parental supervision of minor children. However, the judgment of the lower court ruled that non-custodial parents are obligated to supervise minor children in principle, suggesting the opposite conclusion of the target judgment. There may be sufficient reasons for the differences in opinions between the first and second judgments and the Supreme Court judgments on the same facts. Even with the same facts, the interpretation may vary depending on how to interpret and link the legal principles of responsibility for supervisors under the tort law and the legal principles related to rights and obligations between parents and children under the kinship law. In this paper, we reviewed whether non-custodial parents can also recognize the supervisory duty in relation to the responsibility of supervisors for torts committed by minor children based on the tort law and the kinship law. And based on this review, we considered what interpretation theory would be a harmonious and more reasonable interpretation under civil law to present issues such as the subject judgment. The authors' views in this study are as follows - ① Non-custodial parents are also responsible for torts of the minor children, as non-custodial parents are also responsible for supervisory duties on minor children. ② However, if special circumstances are recognized, such as when a father or mother abandons a child who is an infant or loses contact after adopting him or her at home and abroad, or when decades have passed without interview negotiations or child support payments, non-custodial parents can be exempted from supervisory responsibility if they prove these special circumstances. This interpretation can be expected to increase the protection of victims due to torts and to remind underage children of their responsibilities and obligations as parents of normal growth and character formation. It is frequently reported in the media that civil and criminal problems related to minor children are occurring. Few would deny that there are inherent rights and obligations between parents and children. Based on these rights and obligations, it is believed that parents should bear some kind of infinite responsibility for their underage children to help them grow properly. Therefore, it is thought that this aspect will be fully considered in the interpretation of the law will be effective in preventing and solving social problems and reducing social costs.

Enforcement of judgments of the European Court of Human Rights under martial law

Enforcement of judgments of the European Court of Human Rights under martial law

Idea obywatelskiego nieposłuszeństwa. Kilka słów po wyroku Wojewódzkiego Sądu Administracyjnego w Opolu (II SA/Op 219/20) oraz wyroku Naczelnego Sądu Administracyjnego (II GSK 292/21)

The global SARS-CoV-2 coronavirus pandemic carried a number of restrictions and prohibitions, the manifestation of which in Poland was, i.a., cyclical closing and opening of selected branches of the economy, which for the vast majority of entrepreneurs meant – at best – an uncertain future. The lack of clear and consistent actions when introducing restrictions and bans by the Polish Council of Ministers, as well as the failure to provide real financial aid, resulted in the growing opposition of many entrepreneurs, which in turn translated into breaking or circumventing the applicable regulations regarding restrictions and prohibitions in the field of economic freedom. Can such an action be considered a manifestation of civil disobedience? The author’s attempt to obtain an answer to this question is the result of the judgment of the Voivodeship Administrative Court in Opole of 27 October 2020 (II SA/Op 219/20), which for many Polish entrepreneurs was an excuse to express their civic objection and open a business against applicable restrictions and limitations, as well as the judgment of the Supreme Administrative Court of 28 August 2022 (II GSK 292/21).

Znaczenie wyroku Naczelnego Sądu Administracyjnego z dnia 4 listopada 2021 r. w sprawie o sygn. III FSK 3626/21 jako orzeczenia krajowego sądu, sędziów europejskich dla statusu asesorów i sędziów sądów pierwszej instancji oraz dla tzw. mechanizmu warunkowości

The commentary essentially endorses the considerations of the Polish Supreme Administrative Court judgment of 4 November 2021 in case no. III FSK 3626/21. The author indicated a possible way of resolving the dispute over the National Council of the Judiciary (NCJ) and the composition of the Supreme Court without destructive, automatic undermining of the status of judges selected in the procedure with the newly appointed NCJ. The standard defined by the Supreme Administrative Court applies to all assessors and all judges of first instance. Ignoring by the European Court of Human Rights in the case of Advance Pharma Sp. z o.o. v. Poland, the judgment of the Supreme Administrative Court of 4 November 2021 does not alter the rules of the test from the case of Guðmundur Andri Ástráðsson v. Iceland. The Supreme Administrative Court’s ruling binds both the European tribunals and is necessary for the correct determination of the status of both first-instance judges and assessors. Moreover, in relation to the judgment of the Court of Justice of the European Union of 16 February 2022 in case C-157/21 Poland should be paid funds from the National Reconstruction Program, because the dispute over the rule of law concerns courts other than administrative, and in relation to these courts the issue of the rule of law is resolved by the judgment of the Supreme Administrative Court of 4 November 2021.

임차인의 갱신요구 후 임차주택을 양수한 자가 자신의 실거주를 이유로 갱신을 거절할 수 있는지 여부

The subject judgment is a matter of justifiable reasons for the landlord to refuse to renew the contract, and the plaintiff who exercised the right to refuse to renew the contract is not a party to the lease contract, but the “buyer of the lease house.” In other words, the issue of this issue is which of the lessors who have signed a lease contract with the buyer of the rental house can exercise the right to refuse contract renewal based on justifiable reasons.
 The judgment on the subject of the study ruled that even if the tenant requested a contract renewal, the landlord could reject the tenant's request for contract renewal for the reason of actual residence pursuant to Article 6-3 (1) 8 of the Housing Lease Act, and if the transferee of the rental housing who succeeded the landlord's status pursuant to Article 3 (4) of the same Act intends to actually reside in the house, he could claim the reason for refusal of renewal under subparagraph 8 above within the period of refusal of renewal above.
 The study target judgment is the first unification of lower court judgments divided into conflicting views by the Supreme Court, and is a very valid judgment when the contents, system, and legislative purposes of related regulations such as Articles 6 and 6-3 of the Housing Lease Act are combined.

A CRITICAL ASSESSMENT OF THE SUBCONSCIOUS COPYING DOCTRINE

The copyright law's notion of subconscious copying has generated a great deal of discussion and controversy. The concept of subconscious copying is evaluated critically in this article, which also explores the key arguments for and against it. The philosophy is essentially based on the notion that people may unintentionally produce works that are strikingly similar to works that already exist due to subconscious influences. Inconsistencies in court rulings result from variations in the doctrine's application and interpretation across various legal systems. 
 The article highlights the standards that courts apply to assess whether subconscious copying has taken place and explores significant court judgments that have developed the notion of subconscious copying. While some courts place a strong emphasis on the availability of the original work and the degree of likeness, other courts value time distance as a crucial consideration. The article also contrasts the techniques taken by various legal systems, including the strict liability system in the US and the necessity of a causal connection in the UK and Canada.
 In conclusion, the notion of subconscious copying is still a complicated and divisive topic in copyright law. Although it makes an effort to overcome the difficulties caused by unintentional impacts on creativity, its application and justification face considerable difficulties. The article advocates for a fair strategy that takes into account the needs of both the public and intellectual property rights' integrity.