Participation In Litigation Research Articles

프랑스·독일·일본에서의 범죄피해자의 형사절차 참가제도와 우리나라에 대한 시사점

France and Germany, that have adopted private prosecution or recognize private participation in litigation, guarantee crime victims the right to participate in criminal proceedings, allowing them to seek redress and protect their rights. However Japan and Korea, which operate criminal procedures based on the principle of state prosecution, perceive the state criminal procedures as an adversarial relationship between the criminal justice agencies and the criminals, and views crime victims as mere objects of protection and support or as targets of preferential measures. Recently, Japan has introduced a system that guarantees crime victims the right to participate in criminal proceedings to a limited extent. Korea attempted to revise the law to introduce a victim participation system that was much weaker than that of France or Germany, and even Japan, but it was ultimately frustrated. Whenever the neglect of the protection of the human rights of crime victims becomes a social issue, the Korean government has established and implemented measures to strengthen the rights of victims. However, except for victims of crimes that attract social attention, such as sexual assault or stalking, the poor status of victims of crimes such as murder, assault, and fraud has not improved much. With only these intermittent and sporadic measures, it is difficult to properly fulfill the state's duty to protect crime victims. In order to improve the poor status of victims, it is necessary to create a principle provision on the protection of suspects' rights and participation in criminal procedures in the Constitution, and declare at the beginning of the Criminal Procedure Act that the rights of crime victims should be protected. And then a device must be established to protect crime victims in a series of criminal procedures such as investigation, prosecution, trial, and execution of sentence. In particular, it is necessary to build a system that stipulates the right of crime victims to express their opinions at each important stage of the criminal procedure, such as the conclusion of the investigation, decision not to prosecute, decision on detention, pronouncement of judgment, and suspension of execution of sentence, and to notify the progress of the criminal procedure.

제소에 동조하지 않는 고유필수적 공동소송인이 있는 경우의 소제기방안

This paper seek for a plan to file a lawsuit in case of be a co-worker of the complaint expenses in an inherently essential joint litigation. An inherently essential joint litigation requires unification confirmed and litigation joint. If it is a co-worker of the complaint expenses, anyone of filing of a suit shall be denied the right of access to the court. And in civil procedure is a maxim that person of active exercising their legitimate rights rules the suit in question.
 Opinions are presented with solution in recognition range of common view & judicial precedent about the inherently essential joint litigation. On the other hand, opinions propose with solution in fluidification of joint action. The one belongs to a plan of a court order of participation in litigation, a plan that a co-worker of the complaint expenses is a defendant and a plan of a court order of delegation of legal power to anyone of filing of a suit, the other is affiliated to a plan of recognizing fluid boundary between an inherently essential joint litigation, a similar essential joint litigation and a ordinary joint litigation.
 This paper supports the system of a court order of delegation of legal power to anyone of filing of a suit. But this plan is not subject to the current law. Consequently it passes this plan in next amendment to civil procedure.

Conflict Resolution Strategies in Public Procurement: The Role of Informal Relations and Trust in Courts

ABSTRACT This paper analyzes conflict resolution strategies in public procurement in two transition economies, Russia and Kazakhstan, based on a supplier survey. The results show that 25% of suppliers in Kazakhstan and 32% of suppliers in Russia said preferred to resolve all public procurement conflicts through negotiations with the procurer without involving a third party represented by the regulator and/or the judicial system. The findings also revealed that Russian suppliers, potentially affiliated with procurers, are less likely to encounter conflict situations. The attitude to the practice of “predetermined choice,” when the procurer selects a supplier before the formal procurement procedure, was used as an indirect indicator of such affiliation. In addition, the empirical analysis shows that, in both countries, suppliers who are not inclined to trust the court and indicate high costs of participation in litigation are more likely to use the strategy of direct negotiations to resolve procurement conflicts.

채권자대위소송에 있어서 채무자의 소송참가

Subrogation litigation by creditor is a litigation by a creditor to a third debtor in order to preserve his or her bond. Therefore, the issue in subrogation litigation by creditor should first look at what legal basis the creditor exercises the debtor's rights on. And if the creditor has the right to perform a lawsuit, the subject of attribution, the debtor, will lose the right to perform a lawsuit. Whether it will be or not is the question. If the debtor's right to perform a lawsuit is lost due to the subrogation litigation of the creditor, the discussion surrounding the subrogation litigation by creditor can be discussed very simply. However, there is no opinion that the debtor's right to perform a lawsuit is lost, however, there is an opinion of a minority that it will be lost after notice of the fact of the subrogation. As such, whether the debtor's right to perform a lawsuit is a premise for the most basic discussion in a subrogation litigation by creditor. It seems that the discussion on the substantive law is insufficient. Since the issue of legal standing of a debtor under the litigation law is a form of expression of the right of management and disposition under the substantive law, a discussion on the substantive law should be a prerequisite. Therefore, in this article, we have discussed whether or not the debtor's right of management and disposition is lost due to notification of subrogation, etc. That is, the right of management and disposition of a subrogation bond of the debtor is not lost by notification of the fact of subrogation, etc., remain legal standing parties. As such, it is logical to think that if the debtor remains as legal standing parties during the continuation of the subrogation action, it can exercise all of its rights as a party. However, the majority theory and precedent are interpreted as being inevitably limited by the prohibition of duplicative litigation and the effect of excluding further litigation under the Litigation Act, and such majority theory and precedent do not appear to be unreasonable. Then, it should be discussed how to provide the debtor with the status as the parties to a suit the opportunity to participate in the subrogation action through other means. In this paper, the alternatives are to allow joint participation in litigation and Independent Party Intervention. Also, if it is difficult for the debtor to participate as a party due to litigation costs, etc., joint litigation supplementary participation equivalent to the status of the parties to a suit is possible. Therefore, the view of the majority theory that joint litigation supplementary participation can participate in cases where a third party subject to the effect of a judgment does not have legal standing should be revised.

Conflict resolution in public procurement: The cases of Russia and Kazakhstan

This paper analyzes conflict resolution strategies in public procurement in Russia and Kazakhstan based on the suppliers survey. The results have shown that suppliers in Kazakhstan are generally less likely to report a conflict with procurers, both before and after the conclusion of a contract. In turn, the econometric analysis has confirmed the hypothesis that Russian suppliers potentially affiliated with procurers are less likely to encounter conflict situations in public procurement. As an indirect indicator of the affiliation of suppliers with procurers, the question of the attitude of suppliers to the practice of deliberate choice, when the procurer uses the procurement procedure to award a contract to a pre-selected supplier, was used. In addition, the empirical analysis has shown that in both countries, suppliers who were not inclined to trust the court and noted high costs of participation in litigation were more likely to use the strategy of direct negotiations with the procurer to resolve conflicts in public procurement.

Legal Actions Against Mountain Valley Pipeline Underscore Grassroots Activism’s Importance

The Mountain Valley Pipeline (MVP) is a 303-mile U.S. interstate project currently under construction that would transport fracked natural gas from northern West Virginia through southwest Virginia. The MVP is highly controversial due to its immediate Appalachian environmental and human community impacts, in addition to its exacerbation of climate change. Numerous legal actions have therefore been initiated to halt the MVP including, most notably, federal litigation efforts. Appalachian activists occupy a central role in such legal actions, as illustrated by joint grassroots organization participation in litigation. What is more, other Appalachian citizens have engaged in broader resistance actions (e.g., tree sit-type direct actions) that have substantially raised public awareness on MVP issues.

Better Late than Never: Lessons from S v Jordan in Strengthening Women's Participation in Litigation

In 2002 the South African Constitutional Court rejected the decriminalisation of sex work and for many years the judgment has constricted further debate on the topic. In 2013 organisations such as the Commission for Gender Equality have again publicly committed themselves toward lobbying for the decriminalisation of sex work. The renewed debate has necessitated a reconsideration of the Court's decision in S v Jordan and this article focuses on the organisations that participated as amicus curiae in the matter. The discussion highlights the importance of organisational participation in litigation and how this participation could provide the context in which to consider future debates on the topic.
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Friends and Interveners

AbstractInterest groups attempt to shape the content of law and policy in a variety of venues, including the legal system. Though the bulk of research dedicated to understanding interest group participation in litigation occurs in the context of the United States, there have been growing efforts to explore this important topic from a cross-national perspective. We contribute to this literature by investigating interest group amicus curiae and intervener activity across 11 English-speaking high courts during the 1969–2002 era. Our results support our theoretical argument that institutional features of courts and nations heavily shape levels of organizational litigation, including the power of judicial review, the rules governing third-party participation, and the presence of a bill of rights. This research informs our understanding of institutional design, social movement litigation, and the democratic nature of courts.

The Participation of the Amicus Curiae Institution in Human Rights Litigation in Botswana and South Africa: A Tale of Two Jurisdictions

AbstractIt has become a standard feature of litigation for amici to appear before courts, acting as the vindicator of rights for the politically powerless and marginalized. Their appearance has thus contributed to the promotion and protection of human rights before municipal courts and international tribunals. They have done this through the submission of briefs that seek to broaden perspectives of cases and by advancing innovative legal and factual viewpoints, thus assisting the courts in reaching appropriate conclusions. In Botswana, amicus curiae participation is still at a nascent stage. This is largely due to inflexible rules of standing and the general lack of knowledge of the potential usefulness of the institution by the judiciary. This article argues that, to enhance amicus participation in litigation, thereby enhancing the epistemological quality of its public law jurisprudence, Botswana must pay close attention to the practices and experiences of South Africa where amicus participation has resulted in the phenomenal growth of constitutional jurisprudence.

An Assessment of the “Eggshell Psyche” in Simulated Civil Litigation

The eggshell plaintiff rule dictates that in the event that a defendant causes some amount of damage, he or she also becomes liable for all of the plaintiff’s injuries, including any unforeseeable harm. The present study investigated whether adults who may have an “eggshell psyche” due to childhood abuse endorse more symptoms of trauma after a simulated motor vehicle accident than individuals without a history of abuse. Participation in litigation was also examined as a potential stressor over and above the experience of a traumatic event. The results confirm that an individual’s abuse history was related to elevated symptom reports. However, the type of abuse and the litigation context did not incrementally contributed to symptom reports. Results have implications for attorneys, psychological expert witnesses, and plaintiffs who have a history of trauma.

Is Culture Destiny? — An Empirical Analysis of Foreigners’ Litigation Performance Before the International Trade Commission

This study is the first to explore how culture influences a party’s choices and performance in international litigation. It analyzes three aspects of culture in international litigation: cultural barriers to the participation in litigation, cultural risk preferences, and the unique influences that major cultural zones have upon litigation. This study also expands upon the Priest-Klein model of case selection to facilitate analysis. This study uses logistic regression to analyze Section 337 investigations in the U.S. International Trade Commission (“ITC”). Cultural difference, measured by both social values and linguistics, is found to significantly impair every aspect of a foreign party’s performance. Respondents from the Confucian cultural zone are found to be much more likely to settle litigation. This study also finds an unexpected interplay between uncertainty avoidance and cultural heritage: uncertainty avoidance enhances litigation performance only for respondents from the Confucian cultural zone. Other variables such as the economic development level of the home society of a respondent, the time of the investigation, the number of home societies of respondents, and whether the respondent is foreign also lead to statistically significant conclusions. Variables that are not found to have meaningful influences are also presented. The finding of a cultural barrier to a certain extent exonerates U.S. adjudicators whom some prior studies have blamed for xenophobia bias. This article also reviews previous claims of bias on the part of the ITC and finds them unpersuasive. Foreign respondents actually outperform domestic respondents after cultural and other factors are considered. Statistical analysis suggests that the superior outcomes of foreign respondents can be explained by their attraction to weak cases.

Assessment of Litigation Context, Suggestion, and Malingering Measures among Simulated Personal Injury Litigants

The present simulation study examined the extent to which participation in litigation and the suggestion to malinger leads individuals to exaggerate the nature and severity of reported symptoms. The degree to which two commonly used forensic assessment instruments, the M-FAST and the Atypical Responding (ATR) validity scale from the TSI, were able to differentiate fake or exaggerated symptoms from genuine symptoms was also examined. Results indicated that individuals in an active litigation context exhibited more extreme patterns of responding than individuals who were not in litigation. Receiver operating characteristics (ROC) analyses supported that both the M-FAST and the TSI-ATR may be useful in discriminating between malingering and honest responders.

National Human Rights Institutions and the Courts in the Asia-Pacific Region

In many countries across the Asia-Pacific region, national human rights institutions (NHRIs) have in recent years joined the courts as principal institutional loci for the implementation of international human rights norms at the domestic level. This article investigates how the two institutions interact in the Asia-Pacific, and concludes that NHRIs exhibit several distinct types of interactions with the courts, namely collaboration; judicial training; participation in litigation; NHRJ advocacy of better human rights practices and rulings by the courts; NHRI defence of judicial independence; and interactions related to NHRI adjudication of human rights petitions. This article argues that given the wide range of different interactions displayed, relatively simplistic characterisations of the optimal relationship between NHRs and the courts as ‘cooperative’ or ‘supportive’ are misguided, and that different types of interactions would benefit from different types of institutional relationships.

*Poster 12: Psychosocial and Emotional Experience Among Traumatic Brain Injury Litigants

Objective: To explore the relationship between participation in litigation and the following variables: depression; behavioral, cognitive and physical symptoms; level of unmet needs with relationships with family, significant others, and friends; and level of unmet needs in social and recreational activities. Design: Observational. Setting: Urban research center. Participants: 476 individuals with traumatic brain injury: 287 nonlitigants (never in litigation), 121 pending litigants, and 68 past litigants. Intervention: None. Main Outcome Measures: Living Life after Traumatic Brain Injury, Brain Injury Screening Questionnaire, Beck Depression Inventory, Flanagan Scale of Needs. Results: Multiple regression analyses with significance levels adjusted for False Discovery Rate (.039) were conducted on each outcome variable. Variables controlled for included time since injury and pain level. Pending and past litigants reported significantly more cognitive difficulties than nonlitigants (P=.018 and P=.024, respectively). Pending litigants endorsed significantly more behavioral symptoms than past litigants (P=.021) and nonlitigants (P=.008). Nonlitigants endorsed significantly more behavioral symptoms than past litigants (P=.004). Pending and past litigants reported more unmet needs in relation to participation in active recreation than nonlitigants (P=.008 and P=.035, respectively). No significant associations were found between participation in litigation and number of unmet needs in the realms of socialization or relationships. No significant relationship was found between length of time in litigation or time since litigation ended and perceived psychosocial or emotional symptoms. Conclusions: Participation in litigation is significantly associated with greater levels of unmet needs in participation in active recreation and with more cognitive and behavioral symptoms. These experiences are not significantly related to length of time in litigation or time since litigation ended.

Poster 31: Symptoms and Experiences of Persons With Mild Traumatic Brain Injury and Participation in Litigation

Poster 31: Symptoms and Experiences of Persons With Mild Traumatic Brain Injury and Participation in Litigation

Sex, Laws, and Cyberspace: Organized Interest Litigation Before the U.S. Supreme Court

The hypothesis that a technological development such as the Internet will create legal uncertainty and prompt organized interests both to increase litigation and to alter their legal arguments to advance their interests before the U.S. Supreme Court is tested through examination of organized-interest participation in litigation in sexually explicit speech cases in pre-Internet (1986–93) and Internet (1994–2005) eras of the Rehnquist Court (1986–2005). How content on the Internet changed the substance of organized interests' legal arguments is also examined. Both organized interests that oppose (libertarian groups) and support (proscriptive groups) proscription of sexually explicit speech increased their rates of Supreme Court litigation in the Internet era, and libertarian organized interests took the lead in sponsoring litigation in this area. The Internet also promoted the creation of numerous new libertarian organizations with Internet-specific agendas, which entered into sexually explicit speech litigation. Organized interests identify the Internet as a unique communicative development and make arguments fitting their concerns to that medium.

When Businesses Sue Each Other: An Empirical Study of State Court Litigation

Using a mixture of court docket data and case files, we construct a data set of business litigation in Rhode Island Superior Court during 1987 and 1988. Business litigation is defined as a suit involving an economic firm as both a plaintiff and a defendant. The empirical analysis complements recent scholarship providing answers to descriptive questions about the frequency, nature of, parties to, and intensity of the business litigation docket. Using Standard Industrial Classification (SIC) codes, indicators of industry participation in litigation are developed, and positive analysis undertaken to explain variation across industries. Several hypothesis are developed and tested using quantitative analysis. We conclude that contextual economic conditions favoring the creation of long-term business relationships help prevent litigation between firms.

The dilemmas of legal mobilization: ideologies and strategies of mental patient liberation groups.

The decision to participate in the legal process depends in part upon the ideologies of the potential participants. The ideology that has dominated the rights movement during the past two decades is what Stuart Scheingold describes as the myth of rights. But participation in litigation, including rights evolution litigation, has also been colored by other and sometimes conflicting ideologies. Thus the mobilization of legal resources can be seen as the ways participants in litigation cope with multiple ideologies.This paper looks at the mental patient liberation movement in this way. That movement has been very much affected by a myth of rights ideology, as well as by a liberation ideology that is quite contradictory to the tenets of the myth of rights. The paper documents these ideologies, looks at the way the movement has tried to reconcile them, and shows how this problematic reconciliation affects the nature of mental health rights litigation.

Differential aggressiveness and litigiousness: Social support and social status hypotheses

The Qolla Indians have high rates of involvement in agonistic forms of interaction. In previous reports the author suggested that ecological and physiological factors are causally associated with intracommunity differential participation in aggressive behavior. The present article described tests of hypotheses using other variables to explain this behavioral differentiation. The hypothesis that aggressiveness and participation in litigation are a function of the amount of social support the individual can potentially mobilize is tested. The relationships between indicators of social status (wealth, education, age, political activities, and ritual participation), on the one hand, and aggressiveness and litigiousness, on the other, also are examined.