Supreme Court Judgment Research Articles

Death and denial of care in Indian prisons.

Custodial death is generally linked in the public mind with police brutality and torture, not with indirect brutality through negligence and callous treatment in jail custody. Yet it is not known how many of the thousands of prisoners who die in our jails every year die due to neglect by the jail authorities. The official Prison Statistics India (PSI) in its most recent report states that 1,879 men and women died due to "natural causes" in prisons across India in 2021. Natural causes are defined in the report as "illness" and "ageing". According to the report, 185 more prisoners died of "unnatural" causes, and 52 of "causes not yet known". [1: p 179]. "Unnatural deaths" include "deaths due to negligence or excesses by jail personnel"a. The vagueness of this classification in the PSI data had been noted by Justice Lokur in a landmark Supreme Court judgment, in 2013, when he said: "The distinction made by the NCRB [National Crime Records Bureau] between natural and unnatural deaths is unclear. For example, if a prisoner dies due to a lack of proper medical attention or timely medical attention, would that be classified as a natural death or an unnatural death?" [2].

The return obligor having no right to occupy others’ land - Comments on the Supreme Court Judgment of 2021 Tai-Shan No. 610

<p>我國民法將土地及房屋異其所有，故於土地與房屋非屬同一人所有時，房屋存續於土地之權限，乃成為民法重要之課題。當土地遭他人無權占有興建房屋時，土地所有人除得對於房屋所有人主張所有物返還請求權及不當得利返還請求權外，若房屋所有人再將房屋出租或交由占有人有權占有時，土地所有人是否尚得對房屋占有人請求不當得利，成為近年來司法實務常見困擾之問題。最高法院近年來透過數則判決，認為土地所有人僅得向房屋所有人請求不當得利，不得向房屋占有人主張，係採「直接排除競合」型，但實務上事實審法院亦多有採取「共同債務」型或「不真正連帶債務」型，其見解是否一致，內容是否妥適，值得探討。本文認為就不當得利之構成要件來說，不論是房屋所有人或占有人，對於土地所有人而言，均構成權益歸屬之不當得利，最高法院採取「直接排除競合」型，逕以排除土地所有人對房屋占有人之不當得利請求權，對土地所有權人之保護不足，似有未洽，應視個案情形，採「共同債務」型或「不真正連帶債務」型，並依占有之利益與狀態，分別判令返還占有本身與占有利益。此外，就「不真正連帶債務」型之適用，為了避免不真正連帶債務人間「先賠償先吃虧」之不公平，在內部關係上宜類推適用民法第280、281條規定，依人數平均分擔，並於清償後肯認得行使內部求償權。</p> <p> </p>

재판소원의 금지와 원처분주의

If the Supreme Court applied the legal provisions declared unconstitutional by the Constitutional Court, as a Constitutional Court in order to quickly and efficiently relieve the fundamental rights of the people and at the same time secure the effectiveness of the unconstitutional decision, It would be necessary to cancel not only the Supreme Court's judgment but also the original administrative disposition at the same time. In order to file a constitutional complaint against not only administrative disposition but also court trials, in accordance with the principle of supplementation, the final judgment of the final trial is subject to judgment in principle. However, the res judicata of the court does not reach a direct constitutional issue, that is, a judgment on whether fundamental rights are violated in principle. The principle of supplementation only requests administrative disposition to preferentially receive relief from rights through court trials. And it cannot be immediately concluded that even a constitutional complaint against the original administrative disposition itself that caused the trial was excluded from the legal text “excluding judgment of the courts.” There is no reason to deny the constitutional complaint against the original administrative disposition if the court has caused the irrevocable result of the judgment that used the original administrative disposition as the subject of judgment. The judgment of dismissal of the retrial is because the only procedure in which the judgment subject to retrial can be canceled was blocked by denying the binding force of the limited unconstitutional decision. The attitude of the current Constitutional Court Act on constitutional complaints does not deny the constitutional complaint against the original administrative disposition in accordance with principle of the original disposition of the revocation suit. It would be reasonable to regard the exclusion of trials from the subject of constitutional complaints in principle as prohibiting only constitutional complaints against the trial itself. Constitutional complaint against the ruling on the administrative appeal is illegal unless the ground is that the ruling itself has a unique reason for unconstitutionality. However, if a constitutional complaint is filed against the ruling itself due to its own reasons for unconstitutionality and illegality, it can be argued by filing a revocation suit, making it illegal against the principle of supplementation.

소송무능력자에 대한 송달의 효력과 구제방법

Although Article 179 of the Civil Procedure Act stipulates that service on a person incapable of litigation must be made to it’s legal representative and Article 55 of the same Act stipulates that only a legal representative can act for a person incapable of litigation, if a court served a judgment on a person incapable of litigation without knowing that it was incapable of litigation, there is a question of whether the appeal period proceeds and the judgment becomes final despite the invalid service. The Supreme Court believes that the appeal period does not proceed because the service of a judgment on a person incapable of litigation is ineffective. Regarding this, the German Federal Supreme Court, in view of the provisions of the retrial action and the request for legal stability, considers that the appeal period proceeds if the court does not know from the written judgment that the person is incapable of litigation despite invalid service on the person incapable of litigation. The German Civil Procedure Act, unlike Korean Civil Procedure Act, excludes the supplementary nature of retrial in relation to the appeal. Therefore, under the German Civil Procedure Act, a person incapable of litigation who has been served with a judgment can fight the judgment by appeal, or can contest the judgment by retrial after confirming the judgment as it is. The German Federal Supreme Court, citing these legal provisions, recognizes the validity of the service of judgment on a person incapable of litigation and hold the position that the retrial proceedings does not hinder the guarantee of the person's right to request a legal hearing. But the Korean Civil Procedure Act does not have a provision recognizing the independence of the retrial proceedings. Because the service on the person incapable of litigation is invalid in accordance with Articles 179 and 55 of the Civil Procedure Act, the appeal period does not proceed. Even if an appeal is filed and then withdrawn, the judgment is not finalized and another appeal may be filed again. If a judgment ignoring the flaws in litigation capacity is finalized as a supreme court judgment, it can be contested by a retrial (§ 451 I ③ Civil Procedure Act). If the court clearly recognizes a party’s litigation capacity and the service of the judgement is made on that party, the appeal period proceeds and an appeal or a retrial can be contested (§ 394 I ④, § 451 I ③ Civil Procedure Act). In this case, the supplementary nature of a retrial action(§ 451 I proviso Civil Procedure Act) does not apply to guarantee the procedural right of the person incapable of litigation.

Pelibatan Komisi Pemberantasan Korupsi dalam Pengawasan Hakim Mahkamah Agung dalam Lingkungan Peradilan Perspektif Fath Dhari’ah

The question is still often asked whether the Corruption Eradication Commission (KPK), in carrying out its function as the vanguard of corruption eradication (TIPIKOR), also supervises judges within the Supreme Court (MA) judiciary. Even though from a juridical perspective, the KPK's authority is not included in the supervision of individual Supreme Court judges who have become the authority of the Judicial Commission (KY), the KPK continues to supervise issues of corruption, gratuities, buying and selling of cases and other forms of TIPIKOR within the Supreme Court justice environment, and not judges as the object. This research envisages what if the KPK is involved in supervising Supreme Court judges by using the thinking method of Fath Dhari'ah, which considers the good and bad consequences of establishing law. This study uses a normative method with descriptive analysis techniques. The result of this study is that the involvement of the KPK in supervising Supreme Court judges in the Supreme Court justice environment contains more mafsada than the desired maslahah.

주거침입죄에서 기망에 의한 출입승낙과 사실상 평온의 침해여부

The Supreme Court has emphasized the intention of the resident in determining a crime of intrusion upon habitation. However, in the Supreme Court's 2021. 9. 9. 2020Do12630 judgement, Supreme court ruled that it should be based on the objective and outwardly revealed behavior at the time of entry rather than the intent of resident. Since then, several judgements have been sentenced to different types of housing, including prisons, shared apartment units, private apartment units, retail stores, and restaurants. In particular, when an outsider with a criminal or illegal purpose receives permission to enter a housing or building using deceptive means, the Supreme Court previously recognized the establishment of a crime of intrusion upon habitation on the grounds of contrary to the will of residents and managers. But, the Supreme Court's 2018Do15213 judgement did not recognize the establishment of a crime of intrusion upon habitation in the case of entering a detention center by making the camera in the shape of a business card wallet to hide the existence of the camera. In addition, the Supreme Court's 2022Do1717 judgement did not admit the establishment of a crime of intrusion upon habitation in the case of entering a girlfriend’s house by attatching a camera to a TV with the purpose of filming her body. In both cases the supreme court denied the establishment of a crime of intrusion upon habitation, noting that there was the consent of each manager and resident. However, if there is an active deception, such as disguising it as an everyday object to hide the existence of criminal tools or disguising visitor’s identity, and if it is made as a means of obtaining permission to enter a housing or building, it is reasonable to evaluate it as an act that violates the actual tranquility of the house even though it does not reach the level of denying the effectiveness of the entry approval.

COVID-19 Vaccination and the Role of Informed Consent: England as a Case Study.

Informed consent (IC), following the Supreme Court judgment in Montgomery v Lanarkshire Health Board, [2015] UKSC 11, constitutes a key patients' right. There is a vast literature exploring the significance of this right, while an analysis of the role that this has played in England during the COVID-19 vaccine distribution has been under-explored. Using England as a case study, this paper argues that IC has received limited protection in the COVID-19 vaccination context of the adult population, upholding at its best only a minimalistic approach where mere 'consent' has been safeguarded. It suggests that new approaches should be brainstormed so as to more properly safeguard IC in a Montgomery-compliant-approach, namely in a way that enhances patients' autonomy and medical partnership, and also to better prepare and respond to future pandemics.

The vaccine mandates judgment: Some reflections.

This paper scrutinises the Supreme Court Judgment of May 2, 2022, in a vaccine mandate-related petition. The Hon'ble Court's Order reasserts the primacy of right to privacy and Articles 14 and 21 of the Constitution of India. However, in the interest of protection of communitarian health, the Court felt that the Government is entitled to regulate issues of public health concern by imposing certain limitations on individual rights, which are open to scrutiny by constitutional Courts. However, such mandatory vaccination directives with preconditions cannot invade an individual's right to personal autonomy and right to access means of livelihood, and must meet the threefold criteria laid down in K.S.Puttaswamy, a landmark judgment of 2017. This paper examines the validity of the arguments adopted in the Order and suggests certain infirmities therein. Nevertheless, the Order is a balancing act, and worth celebrating. The paper concludes, as a cup that is "a quarter full", as a victory for human rights and as a safeguard against unreasonableness and arbitrariness in medico-scientific decision-making that takes the citizen's compliance and consent for granted. If the State runs amok by way of mandatory health directives, this Order may come to the rescue of the hapless citizen.

Simplified Legal Procedure for End-of-life Decisions in India: A New Dawn in the Care of the Dying?

Mani RK, Simha S, Gursahani R. Simplified Legal Procedure for End-of-life Decisions in India: A New Dawn in the Care of the Dying? Indian J Crit Care Med 2023;27(5):374-376.

GLOSA KRYTYCZNA DO WYROKU SĄDU NAJWYŻSZEGO Z DNIA 24 MAJA 2019 R., I CSK 218/18

The Supreme Court in its judgment of 24 May 2019, I CSK 218/18, ruled that the purpose of increase in a lump sum remuneration under Article 632 § 2 of the Polish Civil Code is only to reduce the loss. The purpose of increasing the lump sum remuneration is not to compensate for the entire imminent loss. Such increase should cover that part of the loss which exceeds the normal contractual risk. The aim of this paper is to comment on the above judgment of the Supreme Court. The author compares the Supreme Court judgment with the views of legal scholars and commentators on the Polish judicial law, and with the previous case law.

A two-staged NLP-based framework for assessing the sentiments on Indian supreme court judgments.

Topic modeling is a powerful technique for uncovering hidden patterns in large documents. It can identify themes that are highly connected and lead to a certain region while accounting for temporal and spatial complexity. In addition, sentiment analysis can determine the sentiments of media articles on various issues. This study proposes a two-stage natural language processing-based model that utilizes Latent Dirichlet Allocation to identify critical topics related to each type of legal case or judgment and the Valence Aware Dictionary Sentiment Reasoner algorithm to assess people's sentiments on those topics. By applying these strategies, this research aims to influence public perception of controversial legal issues. This study is the first of its kind to use topic modeling and sentiment analysis on Indian legal documents and paves the way for a better understanding of legal documents.

징계대상자의 방어권 보장에 대한 소고

There was a conflict between the judgment of the lower court and the Supreme Court regarding the adequacy of the right of defense granted to public officials in disciplinary proceedings. In other words, the Supreme Court made a judgment 2022du33323 on July 14, 2022, which is against the original trial in the lower court (2020nu52759, sentenced by Seoul High Court, on January 13). the Supreme Court judged that there is a reason not to disclose the victim's personal information and that The disciplinary agency fully guaranteed the right to defend. Also, the Supreme Court judged that the plaintiff knew who the anonymous victims were and there was no problem with the plaintiff's exercise of defense rights. However, the Supreme Court’s judgement, 2022du33323 has the following problems. First of all, it was used as a basis for judging that there was no problem in guaranteeing the plaintiff's right to defense during the disciplinary process due to the fact that there was no objection that the victim was not specified during the disciplinary process. Secondly, It was wrong to dismiss the plaintiff’s claim, citing the situation in which the plaintiff was already aware of the victim while allowing the anonymous treatment of the witness due to the victim's secondary damage. Lastly, It is unfair to cause the plaintiff to fundamentally lose the opportunity to deny his or her disciplinary charges. For this reason, it is thought that a disciplinary agency, the defendant violated the plaintiff's right to defend, and that the Supreme Court's judgment ignored the principle of due process in this case. Paradoxically, 2022du33323 demonstrated the need for institutional supplementation in the following areas of the disciplinary process. Among them, this paper presents three supplementary points. ① First of all, the administrative agency sufficiently informs the person of the right to participate in an attorney until the time of disciplinary action, so that the person subject to disciplinary action is given an opportunity to utilize it. ② Next, The Appeal Review Committee shall facilitate the submission of data by both parties apart from keeping the victim confidential. ③ Lastly, in disciplinary action, the victim's personal information, reasons for disciplinary action, and the contents of disciplinary action must be disclosed to the parties, and the Defendant Administrative Agency must faithfully prove the contents of the disciplinary action. In the end, such institutional improvements are necessary to ensure the principle of due process. by improvements, it is expected that the person subject to disciplinary action will exercise the right to defend more effectively in the disciplinary process and that an appropriate level of relief will be achieved.

JURIDICAL ANALYSIS OF DEBT COLLECTIONS TOWARDS DEFAULT DEBTOR WHICH DEBT HAS MATURED AS THE TIME WHEN THE DEBT ACKNOWLEDGMENT LETTER HAS NOT ENDED

One of the forms of trust between one individual with the others is by making a mutual agreement that is outlined in a written agreement. In the process of it, there are certain conditions that might result in the termination of the agreement as there is default in the written agreement. One of the forms of written agreement that has been stated is debenture note. As if the case of Supreme Court Decision No. 3051/K/Pdt./2017 pertaining to creditor collect debt towards debtor in which the debtor has been negligent and not able to settle the debt throughout 3 (three) months successively as the debt acknowledgment letter has not ended with the result that creditor accuse the debtor to be seized its collateral. Research Methodology that is being used is, juridical normative law research methodology. Inasmuch as juridical normative law research methodology therefore sources and types of data focused on secondary data. Through this research it can be concluded that, debt acknowledgement letter that is made under consideration of Supreme Court Judge is not based on when is the end of the acknowledgement letter, but it is more to the substance of the contents of the debt acknowledgement letter which is the primary essence of the birth of its debt recognition, where both sides agreed the debt shall be collected immediately for 3 (three) months successively.

Community Radio in India: A Model of Participatory Communication inIndia

Community Radio in India: A Model of Participatory Communication inIndia

Use of Multifunctional Vehicles. Gloss to the Resolution of Seven Supreme Court Judges of 14 January 2022, III CZP 7/22

In its resolution the Supreme Court stated that the liability of the insurance company under compulsory civil liability insurance contract concluded by owners of motor vehicles should cover damage resulting from the operation of a device installed in the vehicle also where at the time of the accident, the vehicle is not used as a means of transport. The need for such resolution arouse from discrepancies in jurisprudence after the publication of the judgment of the Court of Justice of the European Union in the Rodrigues de Andrade case. The Supreme Court opted for a broader approach to the use of vehicles, which, in the light of the resolution in question, should not be contingent on the function of the vehicle at the time of the accident. In the author’s opinion, such a standpoint is accurate and should resolve the dispute over the concept of the use of vehicles, which has flared up in the literature and jurisprudence in recent years.

Problematika Pengangkatan dan Perberhentian Hakim Mahkamah Agung Terhadap Independensi Kekuasaan Kehakiman Mahkamah Agung Dalam Sistem Ketatanegaraan Di Indonesia

Article 24A paragraph 3 provides a provision that candidates for Supreme Court justices are proposed by the Judicial Commission to the House of Representatives for approval and to subsequently be appointed as chief justices by the president and the Supreme Court Law states that the appointment of Supreme Court Judges is carried out by the President on the proposal of the House of Representatives or the dismissal of the Chairman, Vice Chairman, Junior Chairman, and Member Judges of the Supreme Court is dismissed by the President on the proposal of the Supreme Court, so that the President, the House of Representatives (DPR, and the Judicial Commission (KY) have loopholes that can later influence the psychic judges in making decisions if the case is related to the 3 (three) institutions. This study aims to determine the Independence of Judicial Power in Indonesia. This research includes library research, research whose data sources are obtained through good literature sources and laws and regulations and using normative and juridical approaches, the Compiler concludes that the proposal for the appointment and dismissal of Supreme Court judges by the Judicial Commission, the House of Representatives and the President may affect the psychic of a judge in making a decision so that this can eliminate the meaning of Article 24 paragraph 1 of the 1945 Constitution which shows less independence of judicial power in upholding justice in accordance with the ideals of the 1945 Constitution.

PENERAPAN PASAL 51 AYAT (1) KUHP DALAM MENENTUKAN KESALAHAN DAN PERTANGGUNGJAWABAN TINDAK PIDANA KORUPSI DI BIROKRASI

This research is motivated by the fact that in recent years, many defendants from Corruption Crime cases have used Article 51 paragraph (1) of the Criminal Code, as evidenced by many Judges in the District Court (first instance) who granted the request, but many were also Supreme Court Judges who annulled it. The problems in this study include (i) What are the provisions of the position order contained in Article 51 paragraph (1) of the Criminal Code that can eliminate errors and accountability for corruption in the bureaucracy? (ii) How is the legal application of the office order in Article 51 paragraph (1) of the Criminal Code in determining the guilt and responsibility of corruption crimes in the Supreme Court Decision No. 685 K/PID/2005 and No. 1393 K/Pid.Sus/2014. This research is a normative research with juridical approach methods and analytical descriptive. The data was come from secondary data, primary legal materials, secondary legal materials, and tertiary with literature data collection. The method of analysis used is a qualitative analysis. The results of the study First, there are (2) two conditions that must be met in order for an executor of an order to escape the noose, namely subjective conditions and objective conditions. Secondly, in Supreme Court Decision No. 685 K/PID/2005, judges apply the law normatively without judging more deeply and fundamentally, as in Supreme Court Decision No. 1393 K/Pid.Sus/2014, judges are more deeply assessed regarding the condition that a person can be given Article 51 paragraph (1) of the Criminal Code.

PERBANDINGAN PANDANGAN HUKUM PENGADILAN TINGGI SAMARINDA DAN MAHKAMAH AGUNG DALAM PERKARA CITIZEN LAWSUIT

This article aims to determine the legal view of the Judge of the Samarinda High Court in upholding the decision of the Samarinda District Court Judge in the Citizen Lawsuit case. In addition, to find out the legal views of the Supreme Court Judges in canceling the decision of the Samarinda High Court Judge on the Citizen Lawsuit case. This research article is a normative legal research with a case approach. This legal research is descriptive. The types of legal materials used are primary legal materials and secondary legal materials. The technique of collecting legal materials in this research article is literature study and analyzed using the syllogism method which uses deductive thinking patterns. Based on this research article, it is found that there are 2 differences in the perspectives of the Samarinda High Court Judges and the Supreme Court Judges. The Samarinda High Court Judge in his perspective stated that the lawsuit filed was a Citizen Lawsuit because it had been recognized in Indonesian judicial practice. The notification or subpoena submitted is in accordance with the provisions of the Decree of the Chief Justice of the Republic of Indonesia Number: 36/KMA/SK/II/2013. Meanwhile, the Supreme Court Judge in his perspective stated that the lawsuit could not be accepted or Niet Ontvankelijke Verklaard (NO) and the notification or summons did not meet the requirements because there were parties in the case who were withdrawn as Defendants without being notified.

KAJIAN UPAYA HUKUM KASASI TERHADAP PUTUSAN LEPAS TINDAK PIDANA PENGANIAYAAN (STUDI PUTUSAN NO. 810/K/PID/2014)

This research aims to find out the suitability of the Supreme Court’s consideration in granting the Cassation request by the Public Prosecutor with Article 256 of Criminal Procedure Code. This type of research is normative legal research that is prescriptive and applied to case studies. The technique of collecting primary and secondary legal materials used for this study is documental study and literature materials. Based on the result and discussion define the Supreme Court Judge’s consideration in examining and adjudicate the Public Prosecutor’s Cassation request stating that granting the Public Prosecutor’s Cassation request, cancelling the Sleman District Court Decision Number 25/Pid.B/2014/PN.SLMN and adjudicate itself stated that the defendant Elly Ratna Pritawaty had been legally and convincingly proven guilty of committing the crime of prosecution and sentenced her to imprisonment for 4 (four) months in accordance with the provisions contained in Article 256 of the Criminal Procedure Code. The judge’s consideration in accepting or granting the cassation request in this persecution case has fulfilled the provision in Article 351 of the Criminal Code. The judge has described the facts found at trial which can strengthen the judge's argument. The judge was of the opinion that the Panel of Judges of the Sleman District Court had made a mistake in applying the legal regulations as they should. Whereas the Panel of Judges at the Sleman District Court stated that the defendant had been proven guilty of committing the crime of persecution. However, the act was carried out in self-defence because the victim immediately attacked the victim and swung his shoe at the defendant's face. Keywords: Legal Effort, Cassation, Persecution, Acquittal

Analisis Hukum Pidana dalam Penanganan Tindak Pidana Malapraktik Kedokteran (Studi Kasus Putusan Mahkamah Agung Nomor: 871 K/Pid/2018)

Data from the Indonesian Medical Discipline Honorary Council (MKDKI) shows that cases of malpractice by obstetricians are quite high. For example, a malpractice case that reached the Supreme Court was a team of doctors consisting of dr. Come on, Dr. Hendi Siagian, and dr. Henry Simanjuntak at Dr.Kandau Manado Hospital against the victim, Julia Fransiska Makatey. Another case, malpractice by dr.Heryani Parewasi, Sp.OG. at Anutapura Hospital in Palu against the victim, Nur Indah Restuwati. The two cases of malpractice resulted in a decision by the Supreme Court Judge No. 871K/Pid/2018. The research method in writing this thesis uses normative legal research supported by empirical legal research. Normative legal research is library research to collect data from reference reading materials and laws and regulations, while empirical research is field research, namely the Supreme Court decision No. 871K/Pid/2018. Field research is needed to collect data directly on the objects and subjects referred to in this research. Forms of criminal acts committed by doctors in carrying out their profession are divided into three categories, namely (1) deliberate criminal malpractice; (2) Criminal malpractice that is reckless; and Criminal Malpractice that is negligent. The basis for consideration of the Supreme Court Judges in deciding case No. 871K/Pid/2018, the basic consideration is that the Defendant did not convey to the victim's family about the possibilities that could happen to the victim and sentenced him to 10 months in prison. Mechanism for resolving medical malpractice cases A civil or criminal lawsuit, in this case a dispute between doctors and hospitals dealing with patients and their families or their proxies, can be resolved in two ways, namely litigation (through the judicial process) and non-litigation (outside the judicial process). Justice). It is better if Law Number 29 of 2004 concerning Medical Practice is formulated regarding medical malpractice along with explanations so that the general public, doctors and the world of health can understand and know the criteria for criminal acts of medical malpractice.