Purpose Doctrine Research Articles

BASIC POLICY AND IMPLEMENTING POLICY OF THE CAPITAL INVESTMENT LAW

This article is written to provide a solution regarding the sovereignty-international obligations dilemma known as the regulatory chill caused by the promulgation of the Capital Investment Law. In achieving this purpose, this article implements the normative research method by quoting the basic policy and implementing policy doctrines as the main basis. This article is also supported by the prevailing Indonesian investment regulations, multilateral treaties concerning trade and environment, and public law doctrines. This article consists of two discussions. The first discussion counters the government of Indonesia's dilemma due to the promulgation of the Capital Investment Law by implementing the basic policy doctrine. Meanwhile, the second discussion answers the same issue based on the implementing policy doctrine. From the first discussion, it can be understood that such regulatory chill is caused by the two main purposes of the Capital Investment Law which are economic development and liberalization. Although the basic policy doctrine can find the root cause of such a dilemma, it cannot be applied as the prescription of the regulatory chill phenomenon. Meanwhile, from the second discussion, this article recommends Indonesia revise the prevailing rules concerning expropriation in the Capital Investment Law. By mixing the police power doctrine and the sole purpose doctrine, this article believes that Indonesia may have a balanced investment measure.

Charities and politics: where did we go wrong?

AbstractThis paper examines a long-standing doctrine in charities law – that if an organisation's main purpose is political then it cannot be charitable. This doctrine is not without controversy because it has the potential to exclude many worthwhile organisations from charitable status, and fetter worthwhile advocacy by those that do have status. While no jurisdiction remains unwaveringly committed to the orthodox political purpose doctrine, we argue that none so far have confronted the public benefit – and detriment – of political advocacy adequately. This paper proposes a way of assessing the public benefit of political advocacy in liberal democratic societies. It argues that political advocacy can give rise to clear public benefit: this is an indirect or process benefit associated with advocacy itself regardless of the end advocated for. However, recognising political advocacy purposes as charitable should still be subject to two constraints: the altruism requirement (reflected in the ‘public’ aspect of public benefit); and consistency with liberal democratic values (as part of the ‘benefit’ aspect). These constraints are needed because, while political advocacy can generate benefit, detriments may also be associated with political advocacy.

DISTINGUISHING THE FORMS OF COMMON PURPOSE LIABILITY S v Govender 2023 (2) SACR 137 (SCA)

In the case of S v Govender (2023 (2) SACR 137 (SCA)), the Supreme Court of Appeal (SCA) was required once again to examine the common purpose doctrine, which although it has been in use in South African law for the past century, has in recent years seen significant development, in its expansion from being applied solely to a prior agreement, to also being applied in the case of an active association between two or more persons. The importance of distinguishing between these different forms of the common purpose doctrine has concomitantly also become increasingly important.As the court points out in S v Mzwempi (2011 (2) SACR 237 (ECM) par 56), prior-agreement common purpose encompasses “any conduct which falls within the wide and general common design”, whereas active-association common purpose is “restricted to particular conduct”. Thus, in active-association common purpose, the association is with a “specific act” by which the crime was committed by another participant in the common purpose. It follows that, given the “marked differences” between the two forms of common purpose:“in a case where the state seeks to place reliance on the doctrine of common purpose, the trier of fact will be required to determine the nature of the common purpose relied upon, what the scope of that common purpose happened to be, and whether the accused was a participant, and remained a participant, in the common purpose.”The discussion examines the significance of the distinction between the different forms of common purpose doctrine, in light of the SCA judgment in the case of Govender.

The dignity and justice of common purpose in criminal law

Although the doctrine of common purpose is accepted and repeatedly applied by South African courts, it has acquired a certain infamy in South Africa’s academy. Some of that infamy is due to the doctrine being abused in the apartheid era. Most of the controversy, however, is because the Constitutional Court has defended the doctrine on consequentialist grounds of crime control. This has led some scholars to assume erroneously that there cannot be a non-consequentialist normative justification for the common purpose doctrine. This article aims to correct what has become an uncritical academic orthodoxy and to provide a non-consequentialist justification for the doctrine. We argue that common purpose is a necessary doctrine if the criminal law is to take the individual agency and dignity of an offender seriously. Much of the criticism of common purpose is anchored in a thin conception of collective agency, which fails to appreciate what the criminal theorist John Gardner terms an agent’s individual teamwork reason. This means that all sorts of ill-conceived objections are thrown at common purpose. Our Constitution rightly vindicates the dignity and justice of common purpose in criminal law.

The Genesis of the Common Purpose Doctrine in South Africa

The Genesis of the Common Purpose Doctrine in South Africa

Notes: The Krugersdorp gang rapes — Another Tshabalala v S; Ntuli v S?

This note assesses the application of the common purpose doctrine to the crime of gang rape. The recent gang rape of eight women in West Village, Krugersdorp on 28 July 2022 received wide media coverage. If and when there is a prosecution, the courts will have to adjudicate on the application of the common purpose doctrine to the newly defined statutory crime of rape. The Criminal Law (Sexual Offences and Related Matters Amendment) Act 32 of 2007 (‘SORMA’) came into effect on 16 December 2007. The Constitutional Court, in Tshabalala v S; Ntuli v S 2020 (2) SACR 38 (CC), held that the common purpose doctrine was applicable to the autographic crime of common-law rape. Since the alleged crimes had occurred in 1998, SORMA was not applicable in this case. If the Krugersdorp gang rape incident reaches the Constitutional Court the case may provide the court with the opportunity to elucidate on the practical impact of its decision in Tshabalala v S; Ntuli v S.

Greenpeace, Political Purposes – “There and back Again”; Reflections on New Zealand Charity Law

Abstract The political purpose doctrine, a key part of the charity law landscape for many common law jurisdictions, has been subject to much judicial and academic criticism over the years. Its continued influence on the charity sector in relation to whether or not charities can operate effectively, or indeed, whether they may lose their registered status, gives rise still to such criticisms. It is against this backdrop that this article critically assesses the doctrine in light of newly-emerging decisions from the New Zealand courts that have fundamentally changed the charity law landscape from a national perspective, and considers some of the issues associated with this newly-evolved doctrine. Thus, what can be said is that New Zealand charity law jurisprudence is evolving and this article provides some useful insights in to contemporary charity law issues predominantly through the New Zealand lens as but one legal approach, and also compares some of these issues against two international perspectives.

AN ANALYSIS OF THE COMMON PURPOSE DOCTRINE AND RAPE IN SOUTH AFRICA WITH SPECIAL FOCUS ON TSHABALALA v THE STATE (2019) ZACC 48

Violence against women, in particular, the crime of rape has reached epidemic status in South Africa. Rape constitutes a gross violation of the victim’s dignity, privacy, and person. It also intrudes upon the commitment between another man and the woman who is the victim to keep the intimacies of their bodily affections exclusively for one another. Rape is not only an act of contempt for the woman who is its victim but is also an act of contempt for the man or woman that she will choose or has chosen to commit herself. Rape is an act of violence, not only upon the woman who is its immediate victim, but towards the concept of family. The family is the granite cornerstone of society. Rape, by its definition, is the intentional, unlawful act of sexual penetration with a victim without their consent. The conundrum arises where a victim is confronted by a group of perpetrators but is only raped by one of them. Can the crime of rape be imputed to the other perpetrators who only watched and did not participate? The common purpose doctrine, a form of liability under South African common law, has been one of the few available measures which effectively addresses joint criminal ventures carried out by gangs. However, whether a conviction on a charge of rape on the doctrine of common purpose is legally competent has been the centre of legal debate. The main argument levelled against the imposition of liability for rape based on common purpose is that rape can only be committed through the instrumentality of an accused’s own body or part thereof, and not through the instrumentality of another. This paper seeks to discuss the effect of including the crime of rape in the doctrine of common purpose. The authors firstly discuss the doctrine of common purpose and rape. Thereafter, a discussion of the current legislative framework in South Africa follows as well as an analysis of the German criminal legal system. Finally, this paper seeks to advance and endorse the judgment handed down by the Constitutional Court in the case of Tshabalala v The State.

OF HOUSEBREAKING AND COMMON PURPOSE: S v Leshilo 2017 JDR 1788 (GP)

Some aspects of substantive criminal law generate more controversy than others. One of the features of the common-law crime of “housebreaking with the intent to commit a crime” is the possible difficulty of proving what “further intent” the accused harboured upon breaking into premises: what crime did the accused intend to commit within? To assist the prosecutor in this regard, the legislature intervened by extending the ambit of the common-law crime to include not just housebreaking where the “further intent” of the accused could be properly identified, but also housebreaking where the “further intent” of the accused could not be identified. Thus, in terms of the Criminal Procedure Act (51 of 1977), a charge of housebreaking with intent to commit a crime “to the prosecutor unknown” (s 95(12)), and a conviction in these terms (s 262) was established. These provisions have proved very controversial, with De Wet commenting that in providing this statutory extension to the common-law crime, the legislature miraculously created a representation of something that is conceptually impossible.The common purpose doctrine also provides invaluable assistance to the State in situations where more than one actor has been involved in the commission of a crime, and where it is extremely difficult to ascertain which actor was responsible for which act. Typically, such crimes arise out of mob violence. A strict application of the rules of causation in such circumstances often makes proof of individual perpetrator liability extremely hard to establish. The consequence of the difficulty in establishing a causal link between the actor’s conduct and the harmful result may be lesser liability or even no liability for the harm. The common purpose doctrine (defined below) however provides that where the actors share a common purpose to commit a crime, and act to that end, the conduct of each actor is imputed to each of the other actors. Thus the difficulty with proof of causation is entirely circumvented.
 But at what cost? Despite a Constitutional Court judgment to the contrary, Burchell has consistently argued that the common purpose doctrine “is a contradiction of the fundamental rule that the prosecution must prove the elements of liability beyond reasonable doubt and, therefore, an infringement of the presumption of innocence”.In the case of S v Leshilo (2017 JDR 1788 (GP)), both these controversial aspects – the statutory extension to the housebreaking crime, and the common purpose doctrine – are drawn together, making a consideration of the judgment in this case both instructive and worthy of closer analysis.

Looking at the charitable purposes/activities distinction through a political advocacy lens: a trans-Tasman perspective

ABSTRACTIn addition to their service delivery role, charities enable a range of process benefits, such as acting as sites of collective and political action. Indeed, political activities frequently arise from and are informed by service delivery. Developments around the world suggest some reticence about charities engaging in political advocacy, yet Australia and New Zealand no longer have a political purpose doctrine in their charity laws. This paper focuses on two contentious forms of political advocacy—election campaigning and illegal protest activities—and argues that in only some circumstances do those activities affect an entity’s charitable purpose or charitable status in Australia and New Zealand.

BUSINESS PURPOSE AS A TAX AVOIDANCE CONDITION IN CORPORATE REORGANIZATIONS

With the approval of the general norm of tax avoidance in the national tax laws, there are several judgments of the Administrative Council of Tax Appeals – Conselho Administrativo de Recursos Fiscais (CARF), which have used a tax avoidance institute of comparative law to consider specific practices resulting from companies’ mergers, splits or amalgamation as abusive tax planning. It is known as the “business purpose doctrine”, which has been running the Counselours of the CARF to establish limits on the exercise of business activity, but still little discussed by the Brazilian doctrine. In summary, this new approach seeks to prevent that corporate transactions of this kind are carried out with the purpose of building a diverse legal reality of the factual, under the cover of legal formalism. The legality in corporate reorganizations focusing on the business purpose theory has been subject of compliance with three basic requirements: the temporality of business, the interdependence of the parties and the normality of the operation. In spite of the controversies regarding the legitimacy of the institute, it is noted that adopting a business purpose test seems plausible, once the institute is identified with the cause of the legal business.

BUSINESS PURPOSE AS A TAX AVOIDANCE CONDITION IN CORPORATE REORGANIZATIONS

With the approval of the general norm of tax avoidance in the national tax laws, there are several judgments of the Administrative Council of Tax Appeals – Conselho Administrativo de Recursos Fiscais (CARF), which have used a tax avoidance institute of comparative law to consider specific practices resulting from companies’ mergers, splits or amalgamation as abusive tax planning. It is known as the “business purpose doctrine”, which has been running the Counselours of the CARF to establish limits on the exercise of business activity, but still little discussed by the Brazilian doctrine. In summary, this new approach seeks to prevent that corporate transactions of this kind are carried out with the purpose of building a diverse legal reality of the factual, under the cover of legal formalism. The legality in corporate reorganizations focusing on the business purpose theory has been subject of compliance with three basic requirements: the temporality of business, the interdependence of the parties and the normality of the operation. In spite of the controversies regarding the legitimacy of the institute, it is noted that adopting a business purpose test seems plausible, once the institute is identified with the cause of the legal business.

BUSINESS PURPOSE AS A TAX AVOIDANCE CONDITION IN CORPORATE REORGANIZATIONS

With the approval of the general norm of tax avoidance in the national tax laws, there are several judgments of the Administrative Council of Tax Appeals – Conselho Administrativo de Recursos Fiscais (CARF), which have used a tax avoidance institute of comparative law to consider specific practices resulting from companies’ mergers, splits or amalgamation as abusive tax planning. It is known as the “business purpose doctrine”, which has been running the Counselours of the CARF to establish limits on the exercise of business activity, but still little discussed by the Brazilian doctrine. In summary, this new approach seeks to prevent that corporate transactions of this kind are carried out with the purpose of building a diverse legal reality of the factual, under the cover of legal formalism. The legality in corporate reorganizations focusing on the business purpose theory has been subject of compliance with three basic requirements: the temporality of business, the interdependence of the parties and the normality of the operation. In spite of the controversies regarding the legitimacy of the institute, it is noted that adopting a business purpose test seems plausible, once the institute is identified with the cause of the legal business.

Rozwój koncepcji treści ekonomicznej (substance) w Stanach Zjednoczonych

Do istotnych wyzwań współczesnego prawa podatkowego należy skuteczne przeciwdziałanie unikaniu opodatkowania. Jednym ze sposobów walki z tym negatywnym zjawiskiem jest poszukiwanie i badanie w działaniach podatników elementu treści ekonomicznej (ang. substance). Na szczególną uwagę zasługują tu zwłaszcza amerykańskie doktryny orzecznicze, a mianowicie doktryna economic substance oraz doktryna business purpose. Analiza tych doktryn wskazuje, że pojęcie treści ekonomicznej (substance) powinno być rozumiane w kontekście zmiany (poprawy) sytuacji ekonomicznej, finansowej, gospodarczej podatnika, wynikającej z czegoś więcej niż tylko z uzyskanej korzyści podatkowej. Owa zmiana (poprawa) może być przy tym analizowana z dwóch perspektyw – obiektywnej lub subiektywnej. Z perspektywy obiektywnej chodzi o rzeczywistą zmianę (poprawę), mającą odzwierciedlenie w zyskach generowanych przez podatnika. Natomiast z perspektywy subiektywnej chodzi o przekonanie podatnika, że podejmowane działania były nakierowane na realizację konkretnego zamierzenia gospodarczego (osiągnięcie zysku). Kryterium obiektywne, jako niewymagające dokonywania ocen motywów działania podatnika, wydaje się przy tym bardziej mierzalne, a tym samym łatwiejsze do zastosowania w praktyce.

A NEW CATEGORY OF COMMON PURPOSE LIABILITY?

Common purpose liability remains a controversial aspect of the principles of criminal liability in South African law, despite the doctrine passing constitutional muster in S v Thebus (2003 (2) SACR 319 (CC)). This definition was most recently set out in the latest edition of Burchell’s Principles of Criminal Law (5ed (2016) 477). It is clear from the definition that the common purpose doctrine can apply in two scenarios: first, where there is a prior agreement between persons to commit a crime, and secondly, where there is an intentional active association with the commission of the crime. Where either of these situations can be established on the facts of the case, it is not necessary for the State to prove a causal contribution on the part of all of those involved in the criminal conduct, since the conduct of the individual who caused the consequence is imputed to all the others who are involved. 
 It has been suggested that these requirements apply equally to all cases that involve common purpose, but that they are “more or less self-evident in cases where there is a prior conspiracy”. However, as Snyman points out, there are important distinctions between the two forms of common purpose liability. Thus where reliance is placed on a prior agreement or conspiracy, as opposed to active association, proof of agreement with a general common design (rather than association with a specific act) will suffice for liability. Moreover, with regard to the prior agreement form, presence at the scene of the crime is not required, and it is further not required that the accused actively associated himself with the actual commission of the crime at the time of its commission. In the fourth edition of Burchell, the author introduces an entirely new understanding of the operation of the common purpose doctrine, in explaining the judgment in the case of Mzwempi. Burchell’s discussion is worthy of consideration. My interest is not merely personal ‒ Burchell disagrees with my own interpretation of the judgments in Nzo and Mzwempi – but because adopting this understanding would change the way we view the common purpose doctrine.

A Comparative Study of Concept and Bases of Frustration of Purpose Doctrine in Iranian and English Law

<p class="a"><span lang="EN-US">After the conclusion of contract its parties are obliged to perform their contract. If one of the contract parties does not enforce it by some reasons, the other party has the right to bind him to perform the contract. In some cases the non-performance of obligation is not based to the denial of obligator. In English Law, an idea under the title of discharge by frustration has been devoted to this issue and other reasons have been enumerated for it. In this between, Sometimes without the performance of contract is unenforceable, the conditions come into existence which the parties purpose of conclusion of contract are affected and the performance of contract for one or two parties become useless. In this case, the performance of contract is not encountered physically and legally with problem, but the parties intention of conclusion of contract is not within reach anymore. This issue has been set forth for discussion under the title of frustration of purpose and it is a part of the theory of discharge by frustration. In Iranian law, such a theory has not been recognized, but considering some articles of the Civil Code including articles 480,527,551 which seem the bases of this theory are rooted in them, one could believe in this theory in Iranian Law. In this article we intended with the use of reliable sources to have a deliberation in the concept and bases of frustration of purpose doctrine in Iranian and English law.</span></p>

Post Re Greenpeace Supreme Court Reflections: Charity Law in the 21st Century in Aotearoa (New Zealand)

The focus of this article is on the political purpose doctrine and public benefit within New Zealand charity law, in the light of the much awaited New Zealand Supreme Court decision in Re Greenpeace. This article asserts that the majority decision in Re Greenpeace was merely a reflection of the court’s ability to recognise the applicability of charity law in contemporary circumstances, in a way that responds to societal needs. The article considers the notion of public benefit as it relates to charity law, both prior to, and after Re Greenpeace, and contends that courts may find the public benefit where it is appropriate to do so, and in circumstances where the social framework favours that way of thinking.

A livre Iniciativa e a Autonomia Privada no Direito Tributário: Elisão e Evasão Fiscais e Planejamento Tributário Versus Art. 116, Parágrafo Único, do CTN

Os princípios da livre iniciativa e da autonomia privada são basilares da República Federativa do Brasil. Por meio da autonomia privada, o Estado concede ao ser humano em sociedade, o poder de agir conforme sua vontade, desde que de acordo com os preceitos da lei. Ele pode contratar, enfim, realizar todos os atos e negócios jurídicos permitidos em lei. O contribuinte tem o direito de buscar formas menos onerosas para efetuar suas atividades econômicas, como a adoção do recurso denominado planejamento tributário para alcançar o lucro e reduzir a carga tributária. Este trabalho tem como objetivo estudar a elisão e a evasão fiscais, a simulação, a dissimulação, a fraude à lei, o abuso de direito e de forma, para poder interpretar se dado planejamento tributário no caso concreto, é lícito ou não, compreender as doutrinas business purpose doctrine, substance over form doctrine e step transaction doctrine e verificar qual posição foi adotada pelo ordenamento jurídico brasileiro, sobre a classificação do planejamento tributário em lícito ou ilícito e expõe as opiniões de diversos autores sobre qual delas deva ser aplicada para o entendimento do disposto no parágrafo único do art. 116, do CTN. Como métodos adotados para a confecção deste trabalho, foram empregados o dedutivo, o sistêmico e o axiológico, com uso de pesquisa bibliográfica, constando a doutrina jurídica, artigos científicos, jurisprudência e o ordenamento jurídico brasileiro, como a Constituição Federal de 1988, o Código Tributário Nacional. A problemática e a justificativa deste artigo científico refere-se às divergências quanto a interpretação do parágrafo único do art. 116, do CTN, em relação às figuras jurídicas adotadas no planejamento tributário pelas empresas, em nome dos princípios da livre iniciativa e da autonomia privada, se tal norma é considerada antielisiva ou antievasiva. Busca entender as figuras da elisão e evasão fiscais, a simulação e dissimulação, o abuso de forma e de direito. Portanto, esses serão os assuntos abordados no presente trabalho, de forma a contextualizá-los no direito tributário e entender a polêmica do planejamento tributário.

BUSINESS PURPOSE AS A TAX AVOIDANCE CONDITION IN CORPORATE REORGANIZATIONS

With the approval of the general norm of tax avoidance in the national tax laws, there are several judgments of the Administrative Council of Tax Appeals – Conselho Administrativo de Recursos Fiscais (CARF), which have used a tax avoidance institute of comparative law to consider specific practices resulting from companies’ mergers, splits or amalgamation as abusive tax planning. It is known as the “business purpose doctrine”, which has been running the Counselours of the CARF to establish limits on the exercise of business activity, but still little discussed by the Brazilian doctrine. In summary, this new approach seeks to prevent that corporate transactions of this kind are carried out with the purpose of building a diverse legal reality of the factual, under the cover of legal formalism. The legality in corporate reorganizations focusing on the business purpose theory has been subject of compliance with three basic requirements: the temporality of business, the interdependence of the parties and the normality of the operation. In spite of the controversies regarding the legitimacy of the institute, it is noted that adopting a business purpose test seems plausible, once the institute is identified with the cause of the legal business.

해외긴급의료지원서비스사업의 무허가보험사업성 : 대법원 2014.5.29. 선고 2013도10457 판결

This paper aims at commenting Korean Supreme Court Decision 2013do10457 Decided on May 29, 2014.BR Korean Supreme Court and scholars have generally considered the definition of insurance business that it consists of (1) the transference of the risk, (2) the pooling of the risk, (3) the distribution of the risk.BR The Korean Supreme Court decided that when the corporation has given the transportation and sending back home service to the abroad dispatched employee at the cost of admission fee, it has not conducted insurance business. The Court applies the principal purpose doctrine which has been formed at American jurisprudence. The writer thinks that this decision elaborates the definition of insurance business in deciding that the elements of the insurance should be corporate’s principal purpose.BR Additionally Korean Supreme Court ruled that the meaning of ‘other pay’ at Korean Insurance Business Act Art. 2 (1) is applied when the service has been given in substitute of the money for the insurer or customer’s convenience. The researcher hopes that this decision should stir insurer’s innovation by developing new insurance products relating to other pay.