Relevant Precedents Research Articles

Caso Moradores de La Oroya contra o Peru: Corte Interamericana de Direitos Humanos atenta ao meio ambiente

Aspects of the decision of the Inter-American Court of Human Rights are discussed, in the case of Residents of La Oroya against Peru, affirming the justiciability of the right to the environment as a diffuse right and recognizing the international responsibility of Peru (State party) for omission in relation to prevention measures and the provision of information to the exposed population. This is a highly relevant precedent for the defense of the environment and human rights, opening up promising possibilities for a new and effective space for the affirmation of principles dear to Health Law and the preservation of life. Submission: 05/09/24| Review: 05/10/24| Approval: 05/10/24

영유아 장애아동을 대상으로 한 보육교사 행위의 신체적 학대 성립 여부에 관한 판례연구

The purpose of this study was to examine the judgment criteria used in the legal system for physical abuse by childcare teachers for infants and toddlers with disabilities by analyzing the relevant precedents; this is also expected to contribute to the ongoing discussions regarding this topic. The research method analyzes the judgment criteria using a qualitative research method, ➀ the important legal applications of the judgment, and it also ➁ selects two cases in which the behavior of childcare teachers around infants and toddlers with disabilities was established as physical abuse and finally examines the effect of the presence of direct tangible force on the court judgment of physical abuse. As a result, it was confirmed that criteria that are at the discretion of the judge are applied to the judgment of innocence even if there is a direct exercise of tangible power. It was also confirmed that the discretion of the judge plays an important role in determining the final inclusion of judgment criteria that take into account various situations that can be considered as physical abuse harming the health and development of the body, even without a direct exercise of tangible power. On the other hand, the judge's discretionary judgment showed that the characteristics of the disability were applied as a major factor. The results of this research present implications that can contribute to ongoing discussions about the judicial, legislative, and administrative aspects of this type of physical abuse.

The Impact of the Minsk Agreements on Ukrainian Sovereignty

ABSTRACT The war in Ukraine constitutes one of the most significant conflicts in recent decades. Given its prolonged duration, it is reshaping international relations on a global scale and has resulted in immense suffering and loss of life. Furthermore, it has brought forth a number of crucial issues for consideration. One such issue pertains to the nature and impact of the Minsk agreements, particularly in light of the claims of remedial secession, which the Russian side has invoked as justification for initiating the so-called ‘Special Military Operation’. In this context, this article takes into account relevant precedents, including the one in Kosovo. Within this framework, special attention is dedicated to analysing the role of the two Minsk agreements and their impact on Ukrainian sovereignty.

Маркеры поликодовой объективации прецедентных феноменов в семиотически осложненном тексте

Introduction. The article studies the markers of polycode objectification of precedent phenomena in semiotically complicated texts. The purpose of the study is to characterize polyprecedence in polycode texts and identify markers of precedent phenomena. A set of research tasks are solved to achieve the goal: 1) analysis of precedence and polyprecedence categories; 2) description of semiotic forms of encoding precedent phenomena in polycode texts; 3) identification of combinations of interaction between markers of precedent phenomena within the text; 4) compilation of a nomenclature of thematic groups of relevant precedent phenomena of the Soviet era based on identified markers of polycode objectification. Materials and Methods. Two hundred modern polycode texts in the “Soviet pin-up” style served the research material. They were selected from the Russian-language segment of the Internet. Each text includes a verbal and / or non-verbal marker of a precedent phenomenon related to the Soviet era or the USSR. The research methodology was based on the provisions of the theory of precedent and multimodal analysis of semiotically complicated texts, individual procedures of semiotic, discursive and structuralsemantic methods of analysis. Analysis. The lingvosemiotic approach to the study of precedent markers is integrative, since it allows one to interpret not only verbalized precedents, but also the phenomena encoded by other semiotic systems (visual, auditory and other perceptual modes). Polyprecedence is not only a correlation with different source areas, but also multiple encoding by different semiotic codes of culturally specific connotations and references to precedent phenomena related to different thematic groups and modes of perception in one text. Markers of precedent phenomena can be represented by verbal or visual codes. By providing an allusive reference to a precedent phenomenon of any type, the verbal code is universal. The degree of manifestation of the marker varies from maximum – quotation, to allusion – an obvious hint, and then to reminiscence – an implicit reference to a precedent phenomenon. The visual code conveys images and elements, among which the representatives of precedence are directly images (graphic images, photographs, images of stereotypical situations preserved in collective consciousness) and their individual elements (composition, form, color scheme, etc.), graphic means, font etc. By analogy with verbal markers, visual ones also have different degrees of manifestation: the use of a prototype image without modifications, an allusion to the image (modified image) and reminiscence. Verbal and visual markers encode variable modes of perception. Perceptual modes are mediated by verbal and visual codes, as they are objectified with the help of verbal or visual markers. Based on the identified markers of polycode objectification, fifteen thematic groups of precedent phenomena of the Soviet era were compiled. Results. The analysis carried out allows us to draw a conclusion about the polycode variability of markers of precedent phenomena and the varying degrees of their manifestation in the text.

공매도 및 주식대차거래와 관련한 소득 과세

[Purpose]In this study, we examined the issues surrounding income taxation in relation to short selling and the stock lending transactions associated with it. Additionally, we proposed essential supplementary institutional measures. [Methodology]To achieve this, we scrutinized relevant precedents and interpretations in Korea, and consulted discussions and legislation in the United States and Japan. [Findings]The topics addressed in this study, along with the proposed measures for income taxation purposes, can be summarized in the following two points. [Implications]Firstly, during stock lending transactions, a formal transfer of ownership occurs. A question arises as to whether capital gains should be taxed following such a formal transfer of ownership. While administrative interpretation asserts no taxation, judicial precedent stipulates that transfer tax is imposed upon the transfer of legal ownership. In cases of qualified loan transactions where economic risks and rewards are not transferred, it is economically prudent not to tax capital gains, even if formal ownership is transferred. A similar issue existed in the United States and was resolved through legislation. Secondly, there is the matter of taxing investors on gains and losses from short selling. Under Korea’s income tax law, which adopts an enumerative method, gains and losses from short selling are not subject to taxation. Moreover, it is not included in the financial investment income tax, scheduled for implementation from 2025 following a postponement. Legislative supplementation is necessary, and given that short selling differs from spot investment in stocks and shares similar characteristics with stock derivatives, it seems fitting to categorize it under the basic deduction group of 2.5 million won. In short selling, when borrowed stocks are returned and the short selling is concluded according to the open transaction doctrine, gains and losses are confirmed, and the time for taxation arrives.

Westmoreland v Canada

This case- note focuses on the award issued in Westmoreland Mining Holding LLC V Government of Canada on 31 January 2022. The decision sets a relevant precedent against the transferability of treaty claims. The tribunal held that it lacked jurisdiction ratione temporis to decide a claim brought by the assignee of a treaty claim, considering that the claimant was not the investor that owned or controlled the investment at the time of the alleged breach. This case-note summarises the award and offers an analysis on the transferability of treaty claims, proposing that the ratione temporis requirement should not defeat the jurisdiction of tribunals facing claims brought by assignees.

Westmoreland V Canada: A Precedent against the Transferability of Treaty Claims

This case- note focuses on the award issued in Westmoreland Mining Holding llc v Government of Canada on 31 January 2022. The decision sets a relevant precedent against the transferability of treaty claims. The tribunal held that it lacked jurisdiction ratione temporis to decide a claim brought by the assignee of a treaty claim, considering that the claimant was not the investor that owned or controlled the investment at the time of the alleged breach. This case- note summarises the award and offers an analysis on the transferability of treaty claims, proposing that the ratione temporis requirement should not defeat the jurisdiction of tribunals facing claims brought by assignees.

기속재량 개념의 법리와 그 문제점

Control over the acts of discretion is one of the long-standing challenges faced by the administrative law community. Control over the acts of discretion begins with the distinction between binding acts and acts of discretion. However, the relevant precedents are aggravating the difficulty of control over the acts of discretion by recognizing the concept of restricted discretion as a third area that is neither binding acts nor acts of discretion. According to the theory of precedents, acts of restricted discretion are binding acts in principle, but in exceptional cases, they refer to acts that can refuse approval or acceptance of reports when there is a need for important public interests.
 However, the ‘need for important public interests’ referred to in restricted discretion corresponds to a representative amorphous concept. However, precedents understand the interpretation and application of amorphous concepts as a matter of discretion. Then, it is logical to understand restricted discretion as acts of discretion in principle. Nevertheless, the precedents commit a contradiction in viewing restricted discretion as binding acts. In addition, the concept of restricted discretion causes numerous contradictions and incongruities with existing administrative law theories, such as violation of the principle of statutory reservation, avoidance of the obligation to set disposition standards under the Administrative Procedure Act, deformation of the judgment under circumstances, and contradictions with the withdrawal system and reporting system.
 In light of the above, the concept of restricted discretion should be abolished in accordance with principle of the rule of law. Restricted discretion should be considered to be established only when individual laws expressly stipulate that refusal disposition can be made due to the need for important public interests. In addition, it is reasonable to say that at the moment such a regulation is made in an individual law, the relevant acts already fall under acts of discretion in terms of the intent and purpose of the regulation.

Snake Oil or Super Drug: How Have Regulators and Payers Perceived New Medicines that Target Asymptomatic Conditions?

Context: Assess how relevant precedent within the European Medicines Agency (EMA) (a key regulator) and the National Institute for Health and Care Excellence (NICE) (a key health technology assessment (HTA) body) can provide insights into how such novel medicines targeting asymptomatic conditions can be brought to market from both a regulatory and payer perspective.
 Methods: All phase 2 or phase 3 clinical trials with keywords such as asymptomatic, pre-symptomatic, subclinical, premanifest, or preclinical keywords were downloaded from clinicaltrials.gov. Trials were cleaned to identify those for novel medicines with a primary focus on treating asymptomatic conditions. The EMA and NICE report for such drugs were downloaded online in December 2021 and analyzed to understand how they assessed the evidence.
 Results: Two hundred seventy-eight clinical trials were identified. Of those, only 8 had relevant matching reports from the EMA or NICE, 7 received a positive review from the EMA, and 4 received a positive recommendation from the NICE. Those who received positive recommendations showed or were assumed to show statistically significant survival benefits given the short life expectancy of untreated patients.
 Conclusions: There is no precedent within the EMA or NICE for approving or funding new medicines for asymptomatic patients where survival benefits cannot be established. Additional research is warranted to understand how regulatory and payer agencies can prepare for future generations of innovative medicines.

TENDENCIAS Y DESAFIOS DEL TRABAJO DESDE CASA EN EL SECTOR AGROPECUARIO POST-COVID-19: UN ENFOQUE EN EL PERSONAL ADMINISTRATIVO

With the purpose of establishing a relevant precedent for future situations that require the adoption of remote work, this study focuses on the implementation of tools, guidelines and strategic practices during the COVID-19 pandemic in a company in the agricultural sector. The experience of the administrative staff of the company in the Mexican Southeast in relation to the home office is examined. The main objective of this research is to propose improvements in the guidelines and practices of remote work applied in the administration of the company during the various stages of the contingency. The aim is to optimize the management of work from home and develop effective strategies to face future adversities related to the health and integrity of employees. This study is based on applied research with an exploratory and quantitative approach. A non-experimental and longitudinal design is used to examine the restrictions that the staff faced in terms of infrastructure, equipment and logistics to carry out their functions during the home office. The results present a management and continuous improvement proposal based on the experience acquired during the social isolation caused by the COVID-19 pandemic. This proposal aims to strengthen the control of adversities that may arise in situations of risk to the health and integrity of collaborators. The vision obtained from the employment situation confirms the importance of planning and administrative and economic forecasting in organizations. These processes increase the probability of efficiently and effectively addressing any event that requires modifying or adapting normality, as has been the case with remote work during the COVID-19 pandemic in companies in the agricultural sector.

How to deal with virtual property crime: Judicial dilemma and a theoretical solution from China

In recent years, China has evidenced a large number of criminal precedents on virtual property crime, but how to deal with it remains controversial, both theoretically and practically. Thus, systematic studies based on relevant precedents and doctrines are urgently needed from three perspectives: the conceptual boundary of virtual property, the judicial application of virtual property crime and the determination of the quantitative element of virtual property crime. Accordingly, the current research also seeks to shed light on other countries facing the same issues. In the context of criminal law, virtual property should be screened by three substantive criteria: digitization, value and scarcity. Whether virtual property is identified as a property right or a contractual claim in the field of civil law will not substantially affect the determination of criminal responsibility. Virtual property has both property and data features, and the different legal interests carried by both should be protected by criminal law. For the judicial application of virtual property crime, there are three approaches: property crime, data crime and computer crime. The three do not have a ranking or mutually exclusive relationship, and the principle of ideal concurrence (Idealkonkurrenz) should be applied. When determining the quantitative element of property crime, two different types of users and game operators should be distinguished, and the actual property damage standard should be favoured. When considering data and computer crime to determine the quantitative element, we should not rely excessively on the criteria of illegal income and economic loss, but should make a comprehensive Judgment around the degree of legal interest infringement.

우리 저작권법상 공정이용의 운영 현황과 과제

In 2011, the fair use provision was introduced in Korean copyright law. While it has been reformed once to make it more effective, and efforts have been made to establish so-called fair use guidelines to increse its predictability, doubts are raised as to whether fair use functions as a practical standard in actual copyright cases. It is time to point out its status quo and to observe how fair use has been operated by the Korean judiciary; this new legal instrument is intended to actively pursue a balance between the interests of creators and users/the public. Moreover, fair use may be understood as the legislator's delegation to the judiciary for exercising the quasi-legislative authority to create new and necessary copyright limitations/exceptions on a case-by-case basis. For an overview, it is indispensable to analyze the relevant precedents produced by various courts in Korea in the past 11 years. Unfortunately, there have been no cases in which the Supreme Court of Korea actively reviewed fair use. Nevertheless, district and high courts produced several decisions and judgments dealing with fair use (some of them gave considerable detail to insightful investigations in fair use). By finding commonalities and trends in these limited precedents and examining their problems, it is possible to determine and suggest what improvements fair use needs and how this relatively new and unfamiliar provision can be developed in the context of Korean copyright law. With this goal in mind, this paper analyzes the fair use-related precedents over the past 11 years in which fair use is reviewed or -at least- mentioned (see the collected cases in Appendix). Above all, it closely examines the attitude (modes of interpretation/ application) taken by the Korean courts on fair use and evaluates whether and to what extent fair use has been actively applied by the courts. Based on this analysis and evaluation, the problems of the current Korean fair use face are pointed out from various aspects. Finally, this paper proposes some ways for a sustainable fair use in our copyright environment, and suggests cooperation and respect between the judiciary and academia.

How to avoid nuclear war with China

ABSTRACT The United States is in a developing military confrontation with China over Taiwan. China has built long-distance precision strike missiles to prevent US Navy task forces from participating effectively. The early Cold War confrontation between the Soviet Union and United States over West Berlin provides a relevant precedent. There is a significant probability a war between China and the United States could escalate to nuclear threats or even use. Recently, China has launched a major buildup of its nuclear forces. It is urgent that the two countries launch talks on nuclear arms control, both to prevent a nuclear arms race and to reassure each other that both want to avoid a nuclear conflict. Citizens should reengage with their governments to urge alternatives to a new nuclear arms race, and US scientists should brainstorm with their Chinese counterparts about nuclear risks and risk reduction.

Selecting and ranking leading cases in Brazilian Supreme Court decisions

Abstract This work studies quantitative measures for ranking judicial decisions by the Brazilian Supreme Court [Supremo Tribunal Federal (STF)] and selecting leading cases, which are understood as those with broadness of influence on different legal fields. The measures are based on a network built over decisions whose cases were finalized in the Brazilian Supreme Court between 01/2001 and 12/2019, which were obtained by crawling publicly available STF records. Three ranking measures are proposed; two are adaptations of the PageRank algorithm, and one adapts Kleinberg’s algorithm. Such measures are compared with respect to agreement on top 100 rankings; we also analyze each robustness measure based on self-agreement under perturbation. We examine whether the resulting quantitative ranking is congenial to a qualitative intuition of what the legal community usually considers as relevant precedents. We also discuss some possible criteria of relevance in the seek for patterns that suggest how quantitative and qualitative measures would better align. The ranking of leading cases and relevant decisions improved after building decision networks without irrelevant appeals and decisions that overflow the court offers a starting point to discuss the role of STF in the Brazilian judicial system. In our last work, both versions of PageRank and Kleinberg algorithms produced different rankings and all of them were robust with respect to 10% and 20%-perturbation levels, but none of them retrieved leading cases at the top of these rankings. Then, we took a further step in the studies of the STF decision network and we introduced better filtering of network nodes guided by legal expertise on the works of the Supreme Court. We also introduced more fine-grained perturbance levels to understand the impact of such filters in the STF decision network. We concluded that after filtering low-relevance decision types, the STF decision network is still robust under 10%-perturbation, but it presents higher degradation by increasing perturbation levels. The two versions of PageRank still produce different rankings. Kleinberg’s algorithm provides a different ranking, with many relevant criminal cases. Although we improved algorithms rankings filtering decisions from the network, which represents an important methodological step, there is still room for improvement. Given that relevant decisions are well ranked after filtering out a large amount of irrelevant decisions, the results set a starting point to discuss the role of STF in the Brazilian judicial system.

Towards a general practice of precedent

ABSTRACT A general practice of precedent is one that can plausibly apply to any well-functioning legal system. This practice, which can be grounded in the Rule of Law, needs to make it the case that courts always have a legal reason for following relevant precedent – even if the precedent is morally suboptimal, so long as it is not evil. Without this reason, a precedent may be treated as having no legal influence for the later court (‘the Null Model’), and this runs counter to the Rule of Law. On top of this reason, courts may have a general legal obligation to follow precedent – stare decisis – but this risks entrenching morally bad decisions in the law. We need, therefore, a type of reason that lies in between the Null Model and stare decisis as a necessary step for any future justification of stare decisis. But how can courts have a legal reason for following morally suboptimal precedent? They can have that reason, I argue, in virtue of a specific judicial duty, positively laid down in a legal source, which aims to advance the Rule of Law in an institutionalised way. In this article, I aim to explain and justify that judicial duty.

유류분 제도와 가족의 연대

The forced heirship system has been implemented since 1979 in Korean Civil Act, but its functions are open to doubt nowadays due to the change of social and economic structure. Nevertheless, the forced heirship system should not be abolished. It is a part of the institutional guarantee according to the Article 36 ① of Constitution, because it prevents the dissolution of family solidarity by protecting the legal heirs from the decedent’s unrestricted disposition of property. However, the current forced heirship system and its relevant precedents falls short of the constitutional standard in that it does not provide the minimum protection for family system. First, the legal status of the co-heir who received devises and bequests changes to a third person according to the article 1114 of Korean Civil Act as soon as he renounces inheritance. It means the other co-heirs claim the return of the legal reserve against him in effect, so it would incapacitate the forced heirship system. Second, the precedents cut the forced heirship system from the contributory portion of the legal heir, so the heirs who received some devises and bequests in return for their special contribution to the decedents should rather recover the shortage of the legal reserve of co-heirs who has no contribution in the case which the decedent leaves no property. The contributory heirs can receive compensation neither in the process of inheritance division or from the lawsuit for the recovery of legal reserve of inheritance, which is against equity between family members and undermine the family solidarity.

False Positive Identification of Pesticides in Food Using the European Standard Method and LC-MS/MS Determination: Examples and Solutions from Routine Applications

The latest standard method for pesticides in food and feed (EN 15662:2018) is now generally used in control laboratories. However, routine analyses of the combination of hundreds of compounds and food matrices highlighted that false positive identification of pesticides in particular food matrices does occur. The aim of the study was to show relevant precedents when thorough investigation was necessary to make a decision on possibly compliant/non-compliant samples. Examples include the pesticide/commodity combination of atrazine-desethyl in date seed coffee, mepanipyrim in parsley root, myclobutanil in white peppercorn, primisulfuron-methyl in herb extract, propham in elderberry, quinoclamine in fennel and tebufenpyrad in dried ginger. These examples, which were presented for the first time, indicated that the identification criteria for some pesticides in certain food matrices, according to the SANTE/11312/2021 guideline, might fail: the general criteria as stable retention time and ion ratio could lead to an incorrect qualification of pesticides. Standard addition was useful not only in compensating for the background during mass spectrometric detection under the confirmatory analysis, but also in the identification process when negligible retention time difference was observed between the analytes and the interfering matrix compounds.

Building a fossil fuel non-proliferation treaty: Key elements

Amid growing recognition of the need for supply-side policies which set limits on the further expansion of fossil fuel extraction and use, in this article we consider possible elements of a Fossil Fuel Non-Proliferation Treaty (FF NPT), behind which there is growing momentum. We elaborate on the possible institutional mechanisms, principles, procedures, and other elements of an FF NPT, by drawing on relevant precedents and parallels with other treaties and bodies of international law on the environment and other policy arenas, and proposals circulating in academic and grey literatures. We address in turn: the scope, objectives, and principles of an FF NPT; the three pillars of commitments under the treaty of (i) ending expansion, (ii) phasing out fossil fuels, and (iii) a global just transition; and options for implementation, including the review of implementation, compliance and effectiveness, a financial mechanism, institutional arrangements, and the role of non-state actors.

PERFECTION CLAUSES, SUMMARY EXECUTION (PARATE EXECUTIE) CLAUSES, FORFEITURE CLAUSES (PACTA COMMISSORIA) AND CONDITIONAL SALES IN PLEDGE AGREEMENTS AND NOTARIAL BONDS  THE POSITION CLARIFIED

A number of recent cases in various divisions of the High Court and in the Supreme Court of Appeal have concerned clauses, in notarial bonds and in agreements for cession of rights in securitatem debiti, which permit the creditor, upon default of the debtor, without recourse to a court, either to take possession of, to retain, to acquire or to sell the property provided as security for the performance of the debt. The decisions reflect a measure of controversy surrounding the validity of such clauses in light of the rule against self-help and section 34 of the Constitution (Act 108 of 1996) which provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court. Other considerations which have been taken into account have been freedom of contract, the principle of pacta sunt servanda and whether such terms are contra bonos mores. The validity of such clauses has significance, particularly, for grantors of credit, who frequently rely upon them to provide security for their debtors‟ obligations, and, consequently, for commerce generally.In the most recent case, Bock v Dubororo Investments (Pty) Ltd (2004 2 SA 242 (SCA)), notably, the Supreme Court of Appeal overruled the decision in Findevco (Pty) Ltd v Faceformat SA (Pty) Ltd (2001 1 SA 251 (E)), in which it was held that summary execution was unconstitutional, and, consequently, we have greater clarity in relation to this issue. It is useful, I submit, to analyse the decision in Bock v Dubororo Investments (Pty) Ltd (supra) in the context of the applicable general legal principles and relevant precedent, to gain perspective on the current legal position.

Funding dam safety regulation: an international comparative analysis and example application in Australia

ABSTRACT Dam failures that cause significant adverse downstream impacts continue to occur globally. Hence, effective, adequately resourced dam safety regulation is critical for the safety of dams and downstream communities. This paper explores options for regulatory funding and resourcing according to a selected set of relevant key factors along a continuum of dam safety assurance. An international comparative analysis of 15 jurisdictional case studies against the key factors identifies trends representing indicative precedents. A procedure is developed to help identify increasingly relevant precedents for guiding target jurisdictions on potentially suitable options. Illustrative application to a real case in Australia is provided.