Statutory Interpretation Research Articles

How Have the Courts Decided What De Minimis is in Tax Law?

This article analyses how South African courts have decided the applicability of the de minimis non curat lex maxim and, more broadly, considered the de minimis concept in tax law. A doctrinal research methodology is employed with the focus on an analysis of predominantly reported judicial decisions. The applicability of the maxim is found to be decisive in only one tax case: the Diageo SA (Pty) Ltd v Commissioner for the South African Revenue Service case of 5 July 2023. Consequently, this study thus also reviews judicial precedent in respect of the applicability of the maxim in other areas of the law with consideration of the relevance to tax law. Further, several tax cases that refer to the broader de minimis concept or to trivial or trifling matters are examined. As there is no one definitive test to determine the applicability of the maxim, the courts have used several factors to guide their determination. Through inductive reasoning, the following conclusions are drawn. (i) In respect of statutory interpretation: First, the primary factor in the determination of the applicability of the maxim is the purpose of the provision. This is aptly demonstrated in the Diageo judgment. Secondly, where the statute sets a clear, objectively verifiable limit or amount, there is essentially no room for the application of the maxim in interpreting the statute. Where, however, no such verifiable basis is provided, a purposive interpretation is paramount – which may in fact require the application of the maxim. (ii) The use of the de minimis concept in tax law appears to depend on whether the matter is one of principle (substance) or practicality (administrability). In the former case, the amount (the factor of extent or value) is irrelevant whereas in the latter, the de minimis concept has been applied.

The Analysis of World Trade Organization Panel Decision of Indonesia Measures Relating to Raw Materials

European Union has requested a panel regarding Indonesia's restriction of exports and downstreaming of raw materials. According to the European Union, Indonesia's export and downstream policies violate World Trade Organization (WTO) provisions, namely Article XI:1 of the General Agreement on Tariffs and Trade (GATT) 1994. In the panel report, the World Trade Organization Dispute Settlement Body (WTO DSB) decided that Indonesia had been proven to have violated these WTO provisions. This thesis examines whether the WTO's ruling on Indonesia's restrictions on raw materials is justified and explores Indonesia's arguments in Appellate Body with the European Union regarding restrictions on nickel ore exports and downstreaming. The research methodology involves normative legal research, analyzing primary legal sources like legislation and secondary sources such as textbooks and case studies. The study delves into Indonesia's challenges in defending its policies at the WTO's Appellate Body. The primary research object is Indonesia's Measures relating to Raw Materials, particularly nickel ore, and relevant agreements like GATT 1994. Legal materials include Indonesian regulations on exports and GATT 1994, while secondary sources encompass statutory regulations, scientific journals, and related literature. The data collection method relies on library research. Using a qualitative approach, the thesis seeks a deep understanding of the core issues. Analytical methods include statutory interpretation, case studies, and grounded theory. The research finds Indonesia's measures non-compliant with GATT 1994 but suggests leveraging Article XXI, the Security Exception, as a strategic defense in the Appellate Body.

Modern Statutory Interpretation: framework, principles and practice

Modern Statutory Interpretation: framework, principles and practice

입법과 사법의 경계: 법률해석의 한계

What is the relationship between legislation and adjudication? Traditionally, it is believed that judges should simply apply the law to specific facts and render judgments accordingly. Montesquieu encapsulated this view by describing judges as "the mouthpieces of the law." In contrast, the Free Law Movement posits that judges are not strictly bound by the text of the law and have the freedom to discover or even create law as needed. Between these two extremes, there exists a range of perspectives on the relationship between legislative and judicial powers. This relationship is crucial because it defines the limits of legal interpretation, making it a central issue in judicial decision-making. This paper begins by exploring the objectives and methods of legal interpretation. It then examines how the Supreme Court of Korea, particularly through its en banc decisions, navigates the relationship between legislation and judicial precedent, or between legislative theory and interpretive theory. The Supreme Court cases discussed in this paper — covering topics such as the gender correction for transgender individuals, parental status of children born through artificial insemination, nominee trusts and unconscionable legal transactions, special limited approval for minor heirs, and judicial reduction of penalty clauses — all address challenging issues that sit at the intersection of legislation and adjudication. The judiciary is vested with the authority to interpret the law, determine its meaning, define its scope, and apply it to specific cases. However, this authority is not without limits. Judges must interpret laws in a manner that respects the legislative power to create laws and must avoid distorting, altering, or replacing the legislator' s decision that can be ascertained from relevant statutory text. This approach is consistent with the constitutional principles of separation of powers and the rule of law, which delineate the distinct roles of the legislative and judicial branches. A legislator's legislative decision cannot be overturned by a judge's judicial decision. Judges must also fulfill their constitutional duty to adjudicate independently according to their conscience (Article 103 of the Constitution of Republic of Korea). It is the judge's role to ascertain the just meaning of the law, grounded in the Constitution and statutes, and to apply it to individual cases. When interpreting and applying laws, judges must confront the critical question of whether to prioritize the intent of the legislature, adhere strictly to the text of the law, or pursue the broader objectives of the law. This question forms both the starting and ending points of legal interpretation and influences views on the boundary between legislative and judicial functions. Whether there has been a legislative decision is a question of the boundaries of statutory interpretation. Legislative solutions, within the constitutional framework, offer the advantage of providing comprehensive resolutions and selecting the best option among various alternatives. However, it is not always possible or appropriate to defer to legislative solutions. The judiciary must, therefore, seek the optimal resolution within the boundaries established by the Constitution and statutes, guided by judicial conscience.

Implementation of Policies in Career Development of PNS in West Sumbawa District, West Nusa Tenggara Province Based on Law Number 5 of 2014

This research aims to analyze policy implementation in career development for civil servants in West Sumbawa Regency, West Nusa Tenggara Province. Based on Law Number 5 of 2014, the research method used is an empirical research method with a statutory study approach and a conceptual and sociological approach. The data analysis used is the method of statutory interpretation and authentic interpretation, as well as field data. The results of this research are expected. The specific target to be achieved is the protection of the rights of civil servants in career development so that they become independent and professional civil servants and free from the influence of political interests. As mandated in Law Number 5 of 2014, civil servants must be neutral. Supervision carried out by the State Civil Apparatus Commission (KASN) is carried out continuously in stages. Therefore, KASN must be present in every provincial capital to reduce injustice towards ASN in districts/cities.

Responsible Government as an Underenforced Norm of the Australian Constitution: Some Interpretive Consequences

In this article we argue that responsible government is an underenforced constitutional norm and that it has the potential to play an important role in vindicating constitutional values, but through a principle of statutory interpretation — the principle of legality — rather than constitutional review. Constitutionalising responsible government would raise counter-majoritarian concerns and likely introduce rigidity where flexibility is required. We argue that where Parliament cannot or will not discharge its constitutional responsibilities with respect to executive-empowering legislation, the courts ought to apply the principle of legality to restrict the scope of the relevant powers conferred. Of especial concern in this regard are statutes which confer broadly framed powers and discretions on the executive arm of government including the power to make secondary legislation. We explain how the capacity for self-government is diminished in these legislative contexts and why the courts are justified in applying legality to vindicate the constitutional norm of responsible government to the extent interpretively possible.

Implementation of Policies in Career Development of PNS in West Sumbawa District, West Nusa Tenggara Province Based on Law Number 5 of 2014

This research aims to analyze policy implementation in career development for civil servants in West Sumbawa Regency, West Nusa Tenggara Province. Based on Law Number 5 of 2014, the research method used is an empirical research method with a statutory study approach and a conceptual and sociological approach. Data analysis using. The data analysis used is the method of statutory interpretation and authentic interpretation as well as field data. The results of this research are expected. The specific target to be achieved is the protection of the rights of civil servants in career development so that they become independent and professional civil servants and free from the influence of political interests. As mandated in Law Number 5 of 2014, civil servants must be neutral. Supervision carried out by the State Civil Apparatus Commission (KASN) is carried out continuously in stages, therefore KASN must be present in every provincial capital to reduce injustice towards ASN in districts/cities.

Presidential agendas in statutory interpretation: A case study of the Ministry of Government Legislation of Korea (MGLK)

Presidential agendas in statutory interpretation: A case study of the Ministry of Government Legislation of Korea (MGLK)

DOES PARLIAMENTARY INTERVENTION MODEL OF JUDGES’ REMOVAL AFFECT THE INDEPENDENCE OF THE JUDICIARY? – A REVISIT TO THE 16TH AMENDMENT CASE

The Constitution Sixteenth Amendment revived the original provision in vesting the power of removal of Judges of the Supreme Court upon Parliament. The Appellate Division, however, declared the Amendment ultra vires in the Constitution 16th Amendment Case. The Government submitted, inter alia, that the Amendment ensured accountability of the Judges to the people. This article argues that the parliamentary removal mechanism of Judges furthers the system of ‘checks and balances’ and not the accountability of the Judges. The article thus holds that due to the faulty argument of the Government, the whole attention of the Court was misdirected towards ensuring accountability of the Judges instead of maintaining the balance of power between Parliament and Judiciary. The article, therefore, suggests an alternative interpretation of the Constitution Sixteenth Amendment revolving mainly around the idea of ‘checks and balances’. The alternative interpretation if properly presented by the Government, perhaps the Court would have put under more compulsion to save the Amendment following this principle of statutory interpretation: Between two interpretations, save the Act. The article has in view two main objectives: first, it would bring it to the attention of both the Bar and the Bench that they should take adequate care of venturing all the possible alternative interpretations of a constitutional provision especially when they are deciding the validity of a constitutional amendment; second, the knowledge it develops might prove beneficial in any future litigation of the Bangladesh constitutional law on issues concerning ‘separation of powers’ and ‘checks and balances’.

Working Time Remedies Beyond Brexit: Chief Constable of the Police Service of Northern Ireland and Another v Agnew and Others

Abstract On 4 October 2023, the ‘long-anticipated’ judgment in PCC v Agnew was handed down by the Supreme Court. This case concerned claims for holiday pay made by police officers and other civilian staff employed by the Police Service of Northern Ireland (PSNI). The Supreme Court had to decide two main issues. The first was whether police officers could take advantage of the more generous remedy provisions in respect of holiday pay claims in the Employment Rights Order 1996 (ERO) (which largely corresponds to the UK Employment Rights Act 1996) as opposed to the Working Time Regulations. The second issue was the correct interpretation of the ERO provisions. As well as the important practical implications of the case, there are also interesting jurisprudential issues that arise. The case deals with the interpretation of European Union (EU) derived rights in the labour context. This is a sensitive area, given that access to EU interpretive mechanisms usually equates to a more progressive reading of rights, and this fans the flame of UK government scepticism to both the EU and working time rights. This article discusses the particular approach to statutory interpretation taken by the Supreme Court and the implications of this approach for the progressive interpretation of EU-derived employment rights going forward.

Statutory Interpretation and Levels of Conceptual Categorisation: The Presumption of Legal Language Explained in Terms of Cognitive Linguistics

AbstractThis article probes the usefulness of selected theories from Cognitive Linguistics in the context of statutory interpretation. The presumption of legal language is a well-established rule of statutory construction in Polish legal practice that comes from the internationally recognised theory by Jerzy Wróblewski. It rests on a controversial assumption that there are different levels of generality in legal language (i.e. the language of statutes) and a single term may be given different meanings depending on the level of generality that is referred to. The authors use the notion of basic level categorisation from the cognitive theory of prototypes to explain this mechanism. Legal concepts, not unlike ordinary concepts, form hierarchical taxonomies. A single term may denote concepts that are situated at different levels in different conceptual taxonomies. In the absence of special circumstances, a legal term should be given the meaning that resides at a higher level of categorisation in the respective legal taxonomy. This way, the presumption of legal language is found to be justified on both linguistic and psychological grounds.

Interpreting Statutes in a Manner Consistent with Seychelles’ International Obligations: Analysing the Court of Appeal’s Decision in The Anti-Corruption Commission of Seychelles v Laura Valabhji (2023)

Abstract The Constitution of Seychelles requires courts, when interpreting the Charter of Human Rights, to take judicial notice of human rights treaties. However, a similar obligation is not imposed on courts when interpreting legislation. Before the case of The Anti-Corruption Commission of Seychelles v Laura Valabhji (18 December 2023), the Court of Appeal had never held that courts are obliged to interpret statutes to conform to Seychelles’ international obligations. The Court rejected a literal approach to statutory interpretation and favoured a purposive approach to justify its reliance on an international treaty when interpreting the Anti-Corruption Act. In this article, the author argues that the Court’s decision in Anti-Corruption Commission of Seychelles v Laura Valabhji has three challenges: it did not explain the meaning of international obligations; its reliance on Indian and Sri-Lankan cases as a source of common law for Seychelles ignores, not only the Interpretation and General Provisions Act, but also the distinction between foreign cases as a source of common law and foreign cases from common law countries as persuasive authorities; and finally, its failure to define ‘control’ has the effect of expanding the powers of the Anti-Corruption Commission beyond what was envisaged by the legislature.

도시 및 주거환경정비법상 조합원 지위 및 분양받을 지위

The law responsible for the biggest axis of new housing supply is the ACT ON THE IMPROVEMENT OF URBAN AREAS AND RESIDENTIAL ENVIRONMENTS (hereinafter referred to as the “Urban Improvement Act”). The Redevelopment Project and the Reconstruction Project are very close to people's lives among the Improvement Projects stipulated in the Urban Improvement Act. In these cases, the fundamental issue is whether the status of the Association Member and the Status to Purchase a Unit of Structure are recognized since the Improvement Projects are implemented by supplying new housing to those who participated as an Association Member.
 The Urban Improvement Act also has provisions concerning the Status of Association Member and limits the Right to Purchase a Unit of Structure. This is to restrain the inflow of speculators and protect the property rights of existing association members by limiting changes in the number of members and splitting shares. However, there are still various cases in the Improvement Projects. And the court's ruling on individual cases appeared to be an inconsistent result. The working community on the Improvement Projects has been quite embarrassed by that.
 It is difficult to find academic research on it, even though the legal situation regarding the recognition of the Status of Association Member and the Status to Purchase a Unit of Structure is not stable. Therefore, this paper examines the validity of the cases—the Supreme Court Decision 2023. 6. 29, 2022Du56586, etc.—that are representative cases concerning the Status of Association Member and the Status to Purchase a Unit of Structure. In particular, the Supreme Court Decision 2023. 6. 29, 2022Du56586 dealt with not only the case where one person owns a number of housings but also the situation where one household owns a number of housings as the major issues. This paper analyzes the main arguments in the precedents above. For example: (1) determination of the Status of Association Member and the Status to Purchase a Unit of Structure; (2) overlapping application of the household standard regulation and individual standard regulation; and (3) statutory interpretation.

Subjective or Objective Legislative Intention: An Australian/German Perspective

Abstract ‘Legislative intention’ as the aim of statutory interpretation has attracted increased attention in the Australian High Court, reinvigorating scholarly attention on the elusive concept. A subjective approach regards it as having an empirical reality. The competing objective view denies any conceptual connection to empirical circumstances and demotes it to a metaphor for the proper application of rules of statutory interpretation. This antagonism prevails in civil law jurisdictions as well. In Germany specifically, it goes back to the 1830s. The article juxtaposes the two local debates so as to mutually provide an additional perspective on the subject matter that can inspire future cross-system discourse. It highlights how similar arguments from both theoretical camps have formed in the two countries over time. And it not only documents striking similarities in how Australia’s and Germany’s highest courts declared commitment to an objective approach but it also reveals contrary curial trends that have most recently emerged.

UNPACKING PACCAR: STATUTORY INTERPRETATION AND LITIGATION FUNDING

AbstractIn the most important funding decision in 20 years, the UK Supreme Court has declared in R. (PACCAR Inc. and others) v Competition Appeal Tribunal and others [2023] UKSC 28, [2023] 1 W.L.R. 2594 that, as a matter of statutory interpretation, a third-party funder’s litigation funding agreement (LFA) is a damages-based agreement (DBA) because third-party funders are offering “claims management services”. This decision, which overturned both the earlier Divisional Court and the Competition Appeal Tribunal decisions, and long-held industry and judicial understanding, has had an immediate impact upon UK litigation. Many LFAs will require immediate re-negotiation, given their non-compliance with the DBA legislation; but for some, the ramifications are much more serious. This article traces the legislation, soft law and law reform activity which preceded this momentous event; it suggests that a key principle of statutory interpretation which governed the outcome might arguably be re-evaluated in future case law; it discusses the possibility of legislative reversal; and it predicts the ramifications of the PACCAR decision upon (especially consumer) litigation unless reversed.

The Statutory Interpretation of Renewable Energy Based on Syllogism of British Government Constitutional Forms towards Sustainable Development Goals

The current production for energy consumption generates harmful impacts of carbon dioxide to the environment causing instability to sustainable development goals. The constitutional reforms of British Government serve to be an important means of resolving any encountered incompatibilities to political environment. This study aims to evaluate green economy using developed equation for renewable energy towards political polarization of corporate governance. The Kano Model Framework is used to measure the equivalency of 1970 Patents Act to UK Intellectual Property tabulating the criteria for the fulfillment of sustainable development goals in respect to the environment, Artificial Intelligence, and dynamic dichotomy of administrative agencies and presidential restriction, as statutory interpretation development to renewable energy. The constitutional forms of British Government satisfy the sustainable development goals needed to fight climate change, advocate healthy ecosystem, promote leadership of magnates, and delegate responsibilities towards green economy. The presidential partisanship must be observed to delineate parties of concerns and execute the government prescriptions in equivalence to the dichotomous relationship of technology and the environment in fulfilling the rights and privileges of all citizens. Hence, the Political Elites can execute corporate governance towards sustainable development of renewable energy promoting environmental parks and zero emission target of carbon dioxide discharges. The economic theory developed in statutory interpretation for renewable energy serves as a tool to reduce detrimental impacts of carbon dioxide to the environment, mitigate climate change, and produce artefacts of bioenergy and Artificial Intelligence promoting sustainable development. It is suggested to explore other vulnerabilities of Artificial Intelligence to prosper economic success.

Bilingual Statutory Interpretation and the United Kingdom: Domestic Law and International Experiences

Abstract This article explores the emerging need for bilingual statutory interpretation within the United Kingdom and explains the significance of the High Court and Court of Appeal judgments in R (on behalf of Driver) v Rhondda Cynon Tâf County Borough Council both in terms of the process of statutory interpretation and with regard to its potential impact on the future of England and Wales as a unified jurisdiction. It draws upon the UK’s approaches to multilingual obligations under international law, and on comparative experiences of multilingualism within a domestic legal system.

Statutory interpretation and the administrative state: refocusing the purposivist/intentionalist debate

Abstract Questions of statutory interpretation form a significant portion of administrative law cases. Accordingly, judicial methodology in this area requires careful consideration by public law commentators. The core aim of this paper is to question the general orthodoxy that statutory interpretation is invariably a question for judges. In recent times, one prominent argument has been that between jurists arguing that interpretation should be the realisation of Parliament's intention (‘intentionalist’), and those who prefer the closely related but subtly distinct focus on its objective purpose (‘purposivist’). I contend that this argument, framed as a question over the inter-institutional relationship between Parliament and the courts, focuses on how interpretation is carried out without considering who is best placed to do the interpreting. Given, as I demonstrate with a series of case studies, that in hard cases the distinction between interpretation and discretion/policymaking can become obscure to the point of nullity, the debate fails to consider institutional arguments for judicial deference on questions of law. Moreover, and counterintuitively, the arguments of the intentionalists/purposivists can be used to bolster an argument for deference. My conclusion adopts a wider lens, setting out a broader constitutional argument for, and addressing objections against, cautious and context-sensitive deference.

The Statutory Interpretation of Renewable Energy Based on British Government Constitutional Forms towards New Public Management of Sustainable Development for Corporate Governance Using Artificial Intelligence

Purpose: The current production for energy consumption generates harmful impacts of carbon dioxide (CO2) to the environment causing instability to sustainable development goals. The constitutional reforms of British government serve to be an important means of resolving any encountered incompatibilities to political environment. This study aims to evaluate green economy using developed equation for renewable energy towards political polarization of corporate governance.
 Methodology: The Kano Model Assessment is used to measure the equivalency of 1970 Patents Act to UK Intellectual Property tabulating the criteria for the fulfillment of sustainable development goals in respect to the environment, artificial intelligence, and dynamic dichotomy of administrative agencies and presidential restriction, as statutory interpretation development to renewable energy. 
 Findings: The constitutional forms of British government satisfy the sustainable development goals needed to fight climate change, advocate healthy ecosystem, promote leadership of magnates, and delegate responsibilities towards green economy. The presidential partisanship must be observed to delineate parties of concerns and execute the government prescriptions in equivalence to the dichotomous relationship of technology and the environment in fulfilling the rights and privileges of all citizens. Hence, the political elites can execute corporate governance towards sustainable development of renewable energy promoting environmental parks and zero emission target of carbon dioxide (CO2) discharges.
 Implications to Theory, Practice and Policy: The economic theory developed in statutory interpretation for renewable energy serves as a tool to reduce detrimental impacts of carbon dioxide (CO2) to the environment, mitigate climate change, and produce artefacts of bioenergy and artificial intelligence promoting sustainable development. It is suggested to explore other vulnerabilities of artificial intelligence to prosper economic success.

The Statutory Interpretation of Renewable Energy Based on British Government Constitutional Forms towards New Public Management of Sustainable Development for Corporate Governance Using Artificial Intelligence

Purpose: The current production for energy consumption generates harmful impacts of carbon dioxide (CO2) to the environment causing instability to sustainable development goals. The constitutional reforms of British government serve to be an important means of resolving any encountered incompatibilities to political environment. This study aims to evaluate green economy using developed equation for renewable energy towards political polarization of corporate governance.
 Materials and Methods: The Kano Model Assessment is used to measure the equivalency of 1970 Patents Act to UK Intellectual Property tabulating the criteria for the fulfillment of sustainable development goals in respect to the environment, artificial intelligence, and dynamic dichotomy of administrative agencies and presidential restriction, as statutory interpretation development to renewable energy. 
 Findings: The constitutional forms of British government satisfy the sustainable development goals needed to fight climate change, advocate healthy ecosystem, promote leadership of magnates, and delegate responsibilities towards green economy. The presidential partisanship must be observed to delineate parties of concerns and execute the government prescriptions in equivalence to the dichotomous relationship of technology and the environment in fulfilling the rights and privileges of all citizens. Hence, the political elites can execute corporate governance towards sustainable development of renewable energy promoting environmental parks and zero emission target of carbon dioxide (CO2) discharges.
 Implications to Theory, Practice and Policy: The economic theory developed in statutory interpretation for renewable energy serves as a tool to reduce detrimental impacts of carbon dioxide (CO2) to the environment, mitigate climate change, and produce artefacts of bioenergy and artificial intelligence promoting sustainable development. It is suggested to explore other vulnerabilities of artificial intelligence to prosper economic success.