Judicial Agencies Research Articles

The Law or the Career? Autocratic Judiciaries, Strategic Sentencing, and Political Repression

Why do judges sometimes act against autocrats’ will, even without judicial independence and tenure security? Contrary to the theory of strategic defection under weak governments, we argue that this behavior can also emerge under strong governments with lax monitoring. When autocrats primarily monitor severe political cases, judges can strategically downplay case severity to avoid oversight, thereby increasing judicial autonomy and the rule of law. Yet, these adjustments will be carefully calibrated–sufficient to evade scrutiny but not too drastic to trigger autocrats’ suspicions and incur sanctions against judges. We test this expectation with new data on Taiwan’s military trials during authoritarian rule, finding that judges tend not to issue sentences above a review threshold after its introduction. Sentence reductions are mostly moderate, affecting cases where sentences can fall slightly above or below the threshold under judges’ discretion. These findings have implications for understanding state repression and judicial agency in nondemocracies.

Legal Conditions for the Implementation of the "Silencing Weapons by 2020" Program of the African Union Agenda for the Period Up to 2063

Silencing weapons by 2020 is an ambitious project of the African Union contained in the ‘Agenda 2063 the Africa we want’. According to aspiration 4 (32) of that Agenda, the achievement of that project requires that mechanisms for peaceful prevention and resolution of conflicts should be functional at all levels. Therefore, that article doesn’t name those mechanisms. In the first aspect of his reflection, the author analyzes those mechanisms as being the peace and security architecture, which is the main mechanism designed to prevent and manage conflicts in Africa, as well as to strengthen peace and to which the African Union (AU) adhered, Regional Economic Communities (RECs) as well as Regional mechanisms (RM); and the African Union Court of Justice and Human Rights, which is a merger of the African Court on Human and Peoples' Rights (ACHPR) and the Court of Justice of the African Union(CJAU) and is the primary judicial agency of the African Union and the first regional court with international criminal jurisdiction. Further in his analysis, the author explains that the failure to meet the silence the guns by 2020 program and the postponement until 2030 has been a consequence of the non-achievement of the mechanisms mentioned in aspiration 4(32). The author ends up his analysis on the conclusion according to which if those mechanisms are not put in place there is a high risk that the second deadline scheduled for 2030, will also not be met. He therefore calls for the complete implementation of the ASP and for the ratification of the CJDHUA Treaty. If this is not possible, to demonstrate realism by setting the deadline for silence the guns in a period after the implementation of the mechanisms provided for in aspiration 4 of Agenda 2063.

UPDATING AND HARMONIZING LEGISLATION: A PROACTIVE STEP IN COMBATING TRANSNATIONAL ORGANIZED CRIME

Organized crime has emerged as one of the most formidable challenges globally, existing as an unavoidable reality with such severe implications that the international community is compelled to unite efforts to counteract it. Its intricate criminal structures and the multiplicity of its criminal activities characterise it. Owing to its pervasive influence across various crucial sectors, notably the economic, security, and social realms, many nations have been overwhelmed by their inability to tackle it independently, thus underscoring the urgent need for innovative mechanisms to mitigate its adverse impacts and ramifications. Therefore, updating and approximating legislation is an essential proactive step to combat organized crime by providing modern legal tools that allow the security and judicial agencies to keep pace with the evolving methods of this crime, starting with formulating a comprehensive definition of organized crime that includes all its components and characteristics, and enacting laws that criminalize all organized criminal activities, such as Drug trafficking, money laundering, and human trafficking, enacting other laws that allow the confiscation of profits from organized crime and their reuse in anti-crime programs, and establishing mechanisms to enhance cooperation between security and judicial agencies and other government bodies.

The System of The Trial Agencies that Resolve Civil Cases in Vietnam Currently

Purpose: the aim of this study was to the system of the trial agencies that resolve civil cases in Vietnam currently. Theoretical framework: Currently, the number of civil cases tried every year in Vietnam is increasing rapidly. According to statistics from the Supreme People's Court, on resolving civil, marriage and family, business, trade and labor cases, in 2021, the Court handled 411,299 cases, with 324,813 resolved and adjudicated, reaching a rate of 79%. In 2022, the Court handled 444,402 cases, with 386,944 cases resolved and adjudicated, reaching a rate of 87.07% (Supreme People's Court, 2021). Design/methodology/approach: To meet the needs and demands of judicial work, the People's Court system is increasingly being organized scientifically and strictly. Especially since the establishment of the 2014 Law on Court Organization, the People's Court system in Vietnam has changed greatly compared to the time before this particularly important law took effect. Findings: However, with the impact and influence of international integration and economic and social development, the adjudication of civil cases in Vietnam always poses demands on the People's Court system. Discussion: Therefore, currently, research on the structure of the judicial agencies that resolve civil cases has become especially important and necessary in Vietnam, to promptly find solutions to improve their operational efficiency and perfect the law.

Law’s Logistical Media: The Installation of the File System in the Postwar Japanese Prosecutor’s Office

AbstractThis article traces the fraught history of the file system’s adoption by the Japanese Public Prosecutor’s Office (PPO) from the late 1940s to the early 1950s, when the U.S. General Headquarters (GHQ), the Supreme Commander for the Allied Powers, decentralized the PPO’s power and transformed it into a “democratic” judicial agency. This is also a postwar history of the introduction of Taylorism-derived scientific management to white collar office work and Weberian visions of bureaucratic rationality into government offices, as part of the democratization of public administration steered by various sections within GHQ. Among the key changes was a guarantee of the right to receive a “speedy trial.” The essay argues that, while that guarantee was meant to secure human-rights protections for the accused, the file system introduced to the PPO translated the constitutional imperative of the rights of the accused into the pursuit of efficient scientific management, in which democracy was an operationalized socio-technical achievement. This logistical channel led to the co-emergence of democracy and modern rational bureaucracy, with each evincing mutual cause and effect. American reforms invested technicality with the promise of “democracy,” but as this essay shows, senior Japanese officials envisioned it as a means to rebuild a centralized information network.

좋은 입법을 위한 행정법학적 과제

It is no exaggeration to say that modern democracies refer to rule of law. Above all, legislation is the cornerstone of the rule of law. The reason is that the law in a democratic country is the will of the entire people according to the principle of representation, and the democratic basic order is the rule by the people. This is because the main ordinance of what administrative agencies do is strict enforcement of the law, and the job of judicial agencies is a trial based on the law.
 Therefore, the starting point of democratic state theory is how people can have good laws. In this article, we tried to discuss the elements of good legislation, the current status of legislation in Korea, and the legislative cases that are problematic.
 The element of good legislation refers to a law that 1. complies with legislative procedures 2. has content justification. In addition, factors such as 1) constitutionality, 2) systematicity of the law, 3) content consistency, 4) compliance with the limits of delegated legislation, 5) legalization of administrative rules, and 6) the scope and limitations of ordinance legislation must be examined.
 However, through legislative cases that do not have these elements of good legislation, I tried to think about good legislation in detail. The first is an example of the obscenity of the agenda effect regulation. The second is the issue of deregulation legislation that changed the permit system to a reporting system, that is, ‘reporting that requires repair,’ the third is the issue of legislation on police organization and police action, and the fourth is the issue of excessive decentralization.

Judicial Agency and the Adjudication of Social Rights

This article explores the impact of judicial interpretation on legal system change. An analysis of constitutional rights cases and 178 semi-structured interviews with judges, lawyers, and activists shows that judges created opportunities for mobilization for social rights by changing understandings about and uses of pre-existing institutional arrangements, through the contingent exercise of judicial agency. While Colombian judges pointed to interconnectedness of rights, South African judges focused on human dignity. These choices spurred the massive, yet unforeseen, expansion of the tutela procedure in Colombia and precipitated policy-oriented judicial decision-making and “meaningful engagement” in South African constitutional rights litigation.

The continuation of criminalization by other means: the role of judicial agency in the Italian policing of humanitarian assistance at sea

ABSTRACT Over the last few years, many of the civil society organizations engaged in search and rescue activities in the Central Mediterranean have been targeted in different ways by public authorities. This phenomenon, widely described in terms of ‘policing’, has been central in the EU’s and member states’ migration governance. Scholars have increasingly considered various aspects of that, mostly focusing on legislation, practices and consequences of policing. This article contributes to the existing scholarship by shifting attention to the policy dimension and specifically considering the policy-making process. I focus on the Italian case, in the context of the broader EU policing dynamics, adopting an actor-centred institutionalist perspective, with a view to explaining how and why such policies emerged and evolved over time. To do so, I focus on the policy influence of the judiciary, as enabler of both expansive and repressive dynamics, in the broader context of European and national migration policy-making dynamics. Based on extensive research encompassing different governance layers, the case at hand offers interesting empirical and analytical reflections related to the policing of humanitarian assistance and on the role of the judiciary as a complex and ambivalent driver of the policy process.

Study of informal reasoning in judicial agents in sexual aggression cases.

Background/ObjectiveJudicial decisions must rest on formal reasoning. Nevertheless, informal reasoning sources (cognitive and motivational biases) were observed in judicial judgment making. Literature has identified sexual aggression cases as the most favorable for informal reasoning. Thus, a field study was designed with the aim of assessing the incidence and effects of cognitive and motivational biases in judicial agents in a case to rape to a woman.MethodsAs for this, Chilean judicial agents (N = 217) assessed an allegation (weak evidence) of sexual assault in a case where the perpetrator was known or unknown to the victim. The judicial agents answered to a measure of the myths about sexual aggression, the attribution of responsibility to complainant, the attribution of responsibility to accused, the attribution of credibility to the complainant testimony, the attribution of a nature of a rape to the alleged facts and an estimation of the probability of false/unfounded accusations.ResultsThe results revealed an estimation of false/unfounded accusations of sexual aggression significantly higher than the mean of the best estimates, but into the upper limit of the best estimates; that the studied population did not share, in general, the myths about sexual aggression; and that the sources of attributional biases were driven in favor and against the complainant. Nevertheless, the case study showed that a large number of judicial agents participated of an overestimation of the probabilities of false or unfounded allegations, and of the myths about sexual aggressions and of attributional biases against the complainant.ConclusionIn conclusion, informal reasoning sources were observed in judicial agents when only formal reasoning should prevail. Thus, judicial agents should be trained to control these sources of bias substituting them by formal reasoning (evidence).

Los expedientes del Tribunal de Menores como fuentes para el estudio histórico de las cotidianeidades infantiles y juveniles (La Plata, 1938-1942)

This article proposes to reflect on the difficulties involved in the historical analysis of the judicial records of the first Juvenile Court that functioned in Argentina, as well as to highlight its potential for understanding everyday life in past scenarios. To do so, it focuses on the judicial processes faced by boys accused of committing crimes in the city of La Plata between 1938 and 1942. From these purposes, it warns that these documents illuminate the way in which the judicial agents evaluated the behaviors and moralities of boys, girls, young people and their families, as well as the tactics of those who were configured as denouncers and denounced. In the same way, it assures that a reading against the grain of the files offers clues to analyze the construction of young people from popular sectors as a social problem through the prism of their daily practices, their identities and their conflictive coexistence in neighborhood spaces.

EUROPOL’S NEW MANDATE: BETWEEN SECURITY AND CIVIL FREEDOMS

The article presents the EU Commission’s legislative initiative to amend the current Regulation of 2016, which defines powers and functions of the EU Agency for Law Enforcement Cooperation (Europol). The author cites the arguments used by the EU Commission in its decision to expand the functions and powers of the agency: the successful acquisition of new technologies by criminal gangs, the challenges of digital threats for law enforcement and judicial agencies of Member States, which find it difficult at the national level to properly process big data for the investigation of cross-border crimes. The article analyses the main thematic blocks of the new Regulation: enabling Europol to cooperate in the fight against criminal offenses with private parties; empowering the agency to carry out preliminary processing of big and complex databases; strengthening the role of Europol in the field of research and innovation; enabling Europol to enter alerts into the Schengen Information System, etc. The author believes that the expansion of Europol's operational powers brings it one step closer to the «European FB», i.e., an organization of a supranational nature. At the same time, the author cites the arguments of the reform’s opponents, including the political groups of the European Parliament and human rights organisations, which can be divided into two groups: a) under the pretext of ensuring security, the Commission legalises the current practice of Europol, which has gone beyond its current mandate, b) the new functions of the agency for processing a big data pose a threat to the citizens’ rights.

A New Book About Judicial and Law Enforcement Agencies

A New Book About Judicial and Law Enforcement Agencies

Two Birds, One Policy: The Establishment of the National Supervisory Commission as a Factional and Centralizing Tool

Xi Jinping has made “anti-corruption” campaigns a hallmark of his leadership. The campaigns promise to target both “tigers” - senior party, government, and military leaders - and “flies” - local party and government officials. This practice has included a drastic restructuring of China’s anti-corruption and judicial agencies, culminating in their centralization under the National Supervisory Commission (NSC) in 2018. Many scholars have debated whether Xi’s campaigns and the NSC are genuinely intended to combat corruption or are instead a tool to eliminate political opponents and consolidate power. The NSC’s establishment is considered in relation to the two predominant models of anti-corruption drives conducted in China, the “Chongqing” model, and the “Guangzhou” model. By deliberately reproducing the Chongqing model’s accountability defects, eliminating political opponents appears to be a core objective of the NSC’s establishment. However, owing to its centralized nature, the NSC also strengthens the central party’s power over local authorities. Local party branches are far less trusted by the population than their national counterparts. Thus, strengthening the party’s credibility - including a genuine attempt to decrease corruption - and strengthening local government oversight appears to be another objective of the NSC’s establishment.

Forensic Characteristics of Intentional Destruction or Damage of Property Belonging to a Law Enforcement Officer: Essence and Content

The subject matter of the study is the forensic characteristics of intentional destruction or damage of property belonging to law enforcement officers. The purpose of the article was to define the concept and components of the forensic characteristics of the studied crime.
 The author has used special research methods, namely: the method of system analysis, comparative and legal, system and structural methods.
 According to the results of the conducted study, the author has established that the circumstances to be clarified during the investigation, as well as the identification of a person who committed the crime, to some extent depend on the investigator’s knowledge of forensic characteristics of the crime he is investigating. The study of forensic characteristics for scientific purposes is the key to a thorough research and construction of other elements of the structure of forensic methodology.
 It has been determined that the term of “forensic characteristics of intentional destruction or damage of property belonging to a law enforcement officer” should be understood as a generalized system of information, based on the analysis of materials of investigative, judicial and expert practice, about typical and interrelated characteristics that can be used as indicative information while investigating this category of crimes.
 It has been established that the elements of the forensic characteristics of the studied crime include: the circumstances of the crime (time and place), modus operandi, tools and traces of its commission, the object of destruction or damage, the personality of the offender and the victim. According to the results of generalization of the practice of investigative and judicial agencies, each of the mentioned elements has been characterized.
 It has been proved that all the above elements of the forensic characteristics of intentional destruction or damage of property belonging to a law enforcement officer, are in some way interrelated, but each of them has a different level of dependence.

Peculiarities of Forming the Methodology for Investigating Criminal Offenses against the Authority of State Agencies in the Law Enforcement Sphere

The peculiarities for the formation of the methodology of investigating criminal offenses against the authority of state agencies in the field of law enforcement activity have been highlighted. It has been established that the specified group of criminal offenses includes: 1) interference in the activities of a law enforcement officer; 2) the threat of murder, bodily injury or destruction or damage to property in a generally dangerous manner in respect to an official or his relatives or in respect to a citizen performing public duties, used to terminate the activities of a citizen performing public duties or to change its nature in the interests of the person who makes threats; 3) unauthorized appropriation of powers combined with the commission of any socially dangerous actions.
 The general concept for the formation of forensic methods of investigating criminal offenses of this type has been defined. That concept consists in observing procedural requirements for carrying out inquiry, taking into account the needs of law enforcement agencies, using the experience of scholars on this issue and experience of investigative and judicial agencies in investigating minor crimes and criminal offenses.
 It has been clarified that during the formation of forensic methods of investigating criminal offenses, there were some controversial issues. They include: issues on the need to include matters about the separation of stages of investigation, forensic prevention, etc. into the structure of tactics of conducting covert (investigative) search actions.
 It has been established that the structure of methods of investigating criminal offenses against the authority of state agencies in the field of law enforcement activity should consist of the following elements: 1) forensic characteristics of criminal offenses against the authority of state agencies in the field of law enforcement activity; 2) circumstances to be established; 3) features of the beginning of criminal proceedings, typical investigative situations, algorithms of investigative (search) and procedural actions at the initial and subsequent stages of investigation; 4) specific features of tactics of conducting certain investigative (search), covert investigative (search) and procedural actions; 5) general features of using special knowledge; 6) specific features of forensic prevention of criminal offenses against the authority of state agencies in the field of law enforcement activity.

Judicial Agency and Legal Means in Judicialization of Politics

Law’s autonomy from politics has been in decline. Theories have been formulated to provide explanations for the development. However, these debates have overlooked the role of judicial agency in the construction of the Court’s own fate. Judicial agency has a lot to determine when courts embark on their mission of embracing political circumstances surrounding them. The present paper argues that insistence on neutral principles by Legal Process School can be guiding for courts to devise judicial techniques that enable warranted appearance of neutrality. Two cases decided by the Israeli Supreme Court will be discussed to elaborate on the argument defended in the paper. In these cases, the Israeli Supreme Court constructs its institutional security by engaging in a principled line of reasoning across its evolving jurisprudence on the same political issue, namely by first exhausting more solid legal arguments and imposing conclusive constitutional resolutions once these less controversial decisions are implemented.

An Analysis on the Control of Administrative Discretion

Administrative discretion means that administrative agencies can exercise their rights based on their own judgment and actual conditions when dealing with matters that are not authorized by the law or have not made detailed provisions.The existence of administrative discretion is not only the result of the expansion of administrative power,but also to adapt to administrative differences in different regions and departments,and to maintain social fairness and justice.However,the existence of rights leads to abuse and corruption,which requires the legislature to control the problem of excessive discretionary power from the source. The administrative law enforcement agency further improves the administrative reconsideration,strengthens the selection and supervision of the staff of the administrative agency,and the judicial agency improves the judicial review.

Protection of the Rights and Legitimate Interests of Entrepreneurs in Cases of Crimes in the Sphere of Economic Activity

The article examines the problematic issues of applying measures to protect the rights and legitimate interests of entrepreneurs in cases of crimes in the field of economic activity. The material-legal and criminal-procedural mechanisms used in the course of proceedings in this category of cases are examined. Special attention is paid to the analysis of the legal positions of the Supreme Court of the Russian Federation, reflected in the decisions of the Plenum of November 15, 2016 № 48 and October 3, 2017 № 33. The purpose of this study is to identify the most acceptable areas of activity of judicial and law enforcement agencies to protect the rights and legitimate interests of entrepreneurs involved in criminal proceedings. The objectives of the study are: a) to determine the specifics of criminal and criminal procedure legislation containing humane mechanisms for the category of cases under consideration; b) to highlight the positions of scientists who conduct research in this field of activity; с) substantiation of recommendations for the further development of criminal policy in the direction of liberalizing the current structure of crimes in conjunction with the improvement of criminal procedural forms of criminal proceedings. The methodological basis of the research was the dialectical method of cognition, General scientific methods of abstraction, analysis and synthesis, as well as special legal methods. Promising ways of development of criminal policy in the field of formation of legislation that allows the most effective protection of the rights and legitimate interests of entrepreneurs are proposed. The conclusion is made about the need for further scientific study of the system of material-legal and criminal-procedural mechanisms used in the proceedings on crimes committed in the sphere of business and other economic activities.

Criminal Law Protection of Human Life and Prevention of Murder in Uzbekistan (On the Example of Women)

In the world, protection of the rights and interests of the individual is one of the priority areas for improving legislation. In this process, a special role is played by criminal legislation, which is designed to ensure the protection of human life as the most valuable object of criminal law protection. The fight against crimes against life, in particular murder, is the highest priority for judicial and law enforcement agencies. In this regard, the adoption of effective measures to counter deliberate killings, the study of the causes and conditions that contribute to their Commission, as well as the identity of the killer are of great scientific and practical importance. According to statistics provided in the UN Global Study on Homicide report for 2019, the number of murders per 100,000 people in El Salvador is 61.8, in Brazil-30.5, in Russia-10.82, in Switzerland-5.35, in Uzbekistan-3, Finland-1.42, in the UK-1.2[1]. All this indicates the need to pay special attention to effective criminal law protection of human life.

Judicial Agency in the Grand Duchy of Lithuania in the 16th Century

This article describes the development of judicial representation in the Grand Duchy of Lithuania in the 16th century. For the first time, the organizational design and legislative consolidation of judicial representation took place in cities with Magdeburg law. The emergence of professional judicial representatives was associated, first of all, with the adoption of the Statute of 1529, which contains legal norms that allow substituting parties in court. The status of professional representatives – lawyers who were called procurators – was consolidated. The statute of 1566, which actually summarized the 30-year practice of law, quite clearly regulated the conduct of the case in court, both personally and through a procurator. The grounds were established when a lawyer was provided free of charge by appointment of a court. The 1588 Statute regulated in detail the procedure for empowering a judicial representative. The author concludes that the institution of representation is firmly rooted in the judicial process, received its written confirmation in the Statutes and, as a result, led to the formation of the institution of the Advocacy.