Title Holder Research Articles

ТЕМПОРАЛЬНІ ХАРАКТЕРИСТИКИ ВОЛОДІННЯ ЧУЖИМ МАЙНОМ

Ця наукова праця присвячена дослідженню актуального питання стосовно правових підстав та результативності нетитульного володіння як належного юридичного явища та оформлення суспільно очікуваного результату – пожвавлення матеріального обороту як елементу побудови ринкового суспільства. Проаналізовано різні аспекти сутності повноважень незаконного фактичного володільця. Визначено правове становище володільця, коли передача майна передбачена договором, але такого виконання не відбувається, з’ясовано можливість застосування до подібних випадків правового режиму утримання чужої речі. Запропоновані істотні зміни до чинного українського законодавства, які виключають змішування речових та зобов’язальних механізмів регулювання відносин щодо нетитульного утримання чужого майна. В роботі зроблено висновок про наявність у сучасному українському цивільному законодавстві правової підстави для нетитульного володіння чужою річчю, яке потребує подальшого унормування.

The Possibility of The Punishment to The Action That The Account Title Holder Who Was Involved in The Voice Phishing Withdrew The Victim’s Money in The Account

대상판결의 다수의견은 보이스피싱에서의 계좌명의인이 그 계좌의 돈을 인출한 행위를 사기피해자에 대한 횡령행위로 판단하고 있다. 그러나 횡령죄는 소유권 침해범죄라는 점을 고려할 때, 이미 보이스피싱에 의해 그 소유권이 상실된 돈을 계좌명의인이 인출하는 행위는 사기피해자에 대한 횡령죄로 평가될 수는 없다. 그럼에도 불구하고 다수의견의 관점이 유지되기 위해서는 돈에 대한 소유권을 이미 상실한 사기피해자에게 또 다른 새로운 피해가 인정될 수 있어야 한다. 그러나 다수의견은 이에 관하여 밝히고 있지 않다. 다만 다수의견은 계좌명의인의 사후적 인출행위를 착오송금 판례에서의 인출행위와 동일시하고 있다. 이를 통하여 다수의견은 착오송금에서도 부당하게 인정되고 있는 특별한 의무를 대상사안의 계좌명의인에게도 동일하게 부과하고 있다. 그러나 대상사안의 경우에서는 계좌명의인이 처음부터 사기행위에 가담하고 있으므로 이것은 원인된 관계가 없는 경우라기보다는 오히려 어떤 원인된 관계가 존재하는 경우로 이해될 수 있는 여지가 다분하다. 따라서 대상사안의 행위자인 계좌명의인에게 돈의 보관에 대한 보증인 의무와 같은 특별한 의무가 부과될 가능성이 부정될 수는 없다. 그러나 결론적으로 이러한 가능성에도 불구하고 사기피해자에 대한 횡령죄가 성립될 여지는 없다고 해야 한다. 왜냐하면 기망에 의한 처분행위로 인하여 이미 소유권이 상실된 돈에 대한 사기피해자의 소유권이 인정될 수는 없기 때문이다.The majority opinion of the decision is that the bank name in voice phishing withdraws money from the account as an act of embezzlement against the fraudulent victim. But considering that embezzlement is an infringement of ownership crime, the act of withdrawing the money already lost by voice phishing cannot be judged as embezzlement against fraudulent victims. Nevertheless, for the majority opinion to be maintained, another new damage must be acknowledged to fraudulent victims who have already lost ownership of the money. However, many opinions are not in this regard. However, the major opinions equate post-deposit withdrawals of account names with withdrawals in error transfer cases. In doing so, the major opinions impose the same special obligation on the person in the account name of the subject matter, which is also unfairly recognized in the error transfer cases. However, in the case of a subject matter, the person in the account name has been involved in the fraud from the beginning, so there is much room to be understood as the case in which a causal relationship exists rather than the case in which there is no causal relationship. Therefore, there is no denying the possibility that account names, the actors in the subject matter, will be subject to special obligations, such as obligations as guarantors for the storage of money. In conclusion, however, it should be said that despite this possibility, there is no room for embezzlement charges against fraudulent victims. This is because the fraudulent victim s ownership of money that has already been forfeited by the act of disposal by the expectation cannot be recognized.

Analysis of Recent Supreme Court Decisions on Article 45-2 Inheritance Tax and Gift Tax Act

국가의 재원조달을 그 핵심기능으로 하는 조세를 공평하게 부과할 수 있기 위해서는 모든 납세자들이 각자의 경제적 거래행위를 각자의 명의로 거래를 하고 그래서 그러한 내용이 거래증빙에 남겨져 있어야 한다는 것이다. 그렇지 않고 예건대, 갑이 을과 거래행위를 하면서 자신이 아니라 병의 명의로 거래를 하게 되면 모든 거래증빙은 병이 거래주체인 것처럼 기록을 하게 되고 그러한 증빙을 확보한 과세당국에서는 해당 거래로 인한 납세의무를 모두 병에게 부과할 가능성이 크다. 이렇게 되면 실제로 갑의 세금이어야 하는 것이 병의 세금으로 부과되어질 수 있어서 갑과 병은 실제로 자신의 담세력과 다른 세금부과를 받게 될 것이다. 사정이 이러함에도 우리나라의 경우에는 과거 타인의 명의로 거래를 하는 것이 매우 빈번하여 과세당국이 조세행정을 함에 있어서 불필요한 부분에 많은 인력과 예산을 투입해야 하는 것이 현실이었다. 이로 인한 어려움을 해소하기 위하여 우리 법제는 자산거래를 실제 소유자 명의로 하지 않는 경우에 여러 가지 제재조치를 입법해두고 있다. 이 글은 그 중 「상속세 및 증여세법」(이하 ‘상증세법’이라 함) 제45조의2에 따른 명의신탁재산의 증여의제 과세 제도를 그 대상으로 한다. 상증세법상 명의신탁재산의 증여의제 과세제도 자체에 대해서는 이미 많은 선행연구들이 축적되어 있는 상황이다. 이 글은 이 제도와 관련 최근 대법원이 2017년부터 주목할 만한 판결들을 연속해서 내놓고 있는 점을 주목하고, 2017년 1월부터 2019년 7월까지 대법원의 관련 주요판례들을 종합적으로 소개하고 그 판결들에 대한 나름의 평가를 통해 향후 이 제도가 어떻게 운영되어야 할 것인지에 대해 나름의 의견을 제시해 보는 것을 이 글의 목표로 하고 있다. 이 논문은 예건대, 명의신탁에 대한 증여세과세를 과징금제도로 변경하자는 주장처럼, 이 제도의 근본적 개편방안에 대해서는 다루지 않기로 하고, 이 제도가 현재처럼 존재하는 것을 전제로 다양한 개선안을 제시하는 것을 목표로 하고 있다.Article 45-2 of Inheritance Tax and Gift Tax Act provides a very special taxation system. This Article deems the Property registered in name of another person to have been donated. This rule applies to special types of property, which requires official registration to transfer or exercise a right, excluding land and buildings. If the actual owner and the title holder of this type of property different persons, the title holder shall be deemed to have been donated an amount equivalent to the value of such property. For example, if A buys a stock and adds it to the shareholders list in B s name, the tax law imposes a gift tax on B, which A considers to have contri- buted the stock to B. According to Korean Inheritance Tax and Gift Tax Act, the gift tax is paid in principal by the donee, not by donor. Until the law was amended in 2018, the taxpayer according to Article 45-2 of Inheritance Tax and Gift Tax Act was the title holder. The title holder actually did not receive any benefits from title holding, but he has the obligation to pay Gift Tax. Since 2019 the actual owner is required to pay the Gift Tax. Due to amendment in 2018, taxpayers have changed but the remaining tax requirements remain the same. Recently, the Korean Supreme Court has made a number of interesting decisions concerning this strange taxation system. In this paper, the Supreme Court s decision from January 2017 to July 2019 was introduced and analyzed. Of course, these are the cases that apply to the law before it was revised in 2018. In this article, we tried to suggest directions for the improvement of the existing taxation system regarding to Article 45-2 of Inheritance Tax and Gift Tax Act.

Priznanje prava svojine na objektima rehabilitacionih centara u banjama i klimatskim mestima Srbije sudskim putem

The paper analyzes the problem of determining the title holder of property rights over specialized hospitals and rehabilitation centers in the spa and climatic sites of Serbia. These healthcare institutions were built mostly in the 1970s and 1980s, by means of contributions for compulsory pension and disability insurance. They were socially owned until 1996, when they were renamed state property. In accordance with the 2001 Law on Privatization, twelve of them were declared 'privatization entities' in 2008. However, the process of their privatization is still in the phase of analysis and preparation because the Pension and Disability Insurance Fund of the Republic of Serbia (PIO Fund) has initiated litigation to prove that the State is not their owner and therefore cannot privatize them. The paper starts from the hypothesis that different views about the title holder of the property rights over the spa rehabilitation centers are due to the specificity of the social-property powers that existed at the time of the construction of these centers, as well as due to the ambiguities of relevant economic-system regulations concerning the transformation of the social property, and then the state property into private property during the decades of economic transition. The aim of the paper is to highlight the significance of the source of investment financing as a criterion based on which the right of ownership of the PIO Fund over the facilities of spa rehabilitation centers is being established by the court today.

The effects of legislation on corporate social responsibility in the minerals and mines sector of Nigeria

This paper examines the effect of legislation on the corporate social responsibility in the minerals and mines sector of the Nigerian economy. Observing that the extractive industry sector in the country is populated by enclave industries that give little priority to CSR, the paper analyses the Nigerian Minerals and Mines Act, 2007. The Act obligates contracting a Community Development Agreement (CDA) between the mineral title holder and the community where the mining company is to operate. Linking CSR and the CDA through the stakeholder theory, the paper observes that corporate actors in the solid minerals sector of the country can no longer deprioritise CSR in their corporate planning as hitherto. It concludes that the effect of this law is to empower the community as an important stakeholder thereby validating the stakeholder thesis herein espoused.Keywords: Corporate social responsibility (CSR), minerals, mines, agreement, human rights

Obsolescence of fees of collective society

The subject of analysis in this paper is the issue of obsolescence of fees of organizations for collective management of copyright and related rights. Namely, in the system of copyright and related rights, the possibility of collective management is one aspect of the exercise of rights. This collectivity stems from the fact that the exploitation of the subject of protection of copyright and related rights in modern society has reached level that exceed the capabilities of the author, or title holder of related rights as individuals to exercise their rights independently. Therefore, authorized organization for collective management, has a role to collect fees. Since it is an obligation between the user and the organization, the question that arose in practice, and we believe that has not received a satisfactory answer, is the question of obsolescence of claims within these entities. In the absence of express statutory regulations, the answer must be sought in analog application of the corresponding provisions of the Law on Obligations, which this paper is devoted special attention.

Knowing Receipt Reasoning Imposed for a Torrens Title Regime: The Troubling Case of Arthur v A-G of the Turks and Caicos Islands

In interpreting the Turks and Caicos Torrens regime, the Privy Council in Arthur v AG of the Turks and Caicos Islands [2012] UKPC 30 held that Torrens regime was subject to constructive trust liability being fixed on the title holder under knowing receipt reasoning and, as a result of this finding, reversed the burden of proof for liability to be fixed. This is argued to be at odds with the fundamental precept of any Torrens regime that the registered title is protected except in the case of actual fraud.

Trends in compulsory licensing of pharmaceuticals since the Doha Declaration: a database analysis.

It is now a decade since the World Trade Organization (WTO) adopted the "Declaration on the TRIPS Agreement and Public Health" at its 4th Ministerial Conference in Doha. Many anticipated that these actions would lead nations to claim compulsory licenses (CLs) for pharmaceutical products with greater regularity. A CL is the use of a patented innovation that has been licensed by a state without the permission of the patent title holder. Skeptics doubted that many CLs would occur, given political pressure against CL activity and continued health system weakness in poor countries. The subsequent decade has seen little systematic assessment of the Doha Declaration's impact. We assembled a database of all episodes in which a CL was publically entertained or announced by a WTO member state since 1995. Broad searches of CL activity were conducted using media, academic, and legal databases, yielding 34 potential CL episodes in 26 countries. Country- and product-specific searches were used to verify government participation, resulting in a final database of 24 verified CLs in 17 nations. We coded CL episodes in terms of outcome, national income, and disease group over three distinct periods of CL activity. Most CL episodes occurred between 2003 and 2005, involved drugs for HIV/AIDS, and occurred in upper-middle-income countries (UMICs). Aside from HIV/AIDS, few CL episodes involved communicable disease, and none occurred in least-developed or low-income countries. Given skepticism about the Doha Declaration's likely impact, we note the relatively high occurrence of CLs, yet CL activity has diminished markedly since 2006. While UMICs have high CL activity and strong incentives to use CLs compared to other countries, we note considerable countervailing pressures against CL use even in UMICs. We conclude that there is a low probability of continued CL activity. We highlight the need for further systematic evaluation of global health governance actions. Please see later in the article for the Editors' Summary.

Estimating the premium for titled agricultural land in Uganda

This study investigates the value for titled agricultural land in Uganda using data on 9,185 parcels of land from the 2005/2006 Uganda National Household Survey. Data were analysed using regression techniques. The results showed that land titles had a positive influence on agricultural land prices although the premium was significant for leasehold title as opposed to other forms of title; that except for current agricultural use, traditional determinants of land value such as soil quality, presence of perennials and proximity to the homestead are not significant for agricultural land in Uganda; and that per acre price of agricultural land in peri-urban locations was significantly higher than in rural areas by about 87%. The overlap in land ownership rights for mailo land where two people have claims to the same piece of land, the mailo title holder and the kibanja tenant, placing constraints on its transfer was not reflected in its perceived market price. It was concluded that the current land policy should promote the leasehold system in upcoming cities and peri-urban areas, since this type of tenure opens land to a wide range of users and use-options. The land policy also needs to address the double ownership structure under the mailo tenure which constrains its transferability to make the positive effects of having such titles more significant in the land market. Keywords: Land tenure, premium, Uganda, regression analysis, mailo land

Review and update of the supplemental bonding formula in the outer continental shelf Gulf of Mexico

To ensure that the government is adequately protected from incurring costs associated with offshore lease abandonment, the Minerals Management Service requires operators to post a supplemental bond if at least one record title owner or holder on the lease does not satisfy a financial strength and reliability threshold. In this paper, we review the objectives of the supplemental bond program and provide a historical perspective of its development. The objectives of a formula-based mechanism are described along with trade-offs that occur in development. Factors that impact US Government decommissioning exposure are highlighted and we present a risk-adjusted bonding mechanism across the three main stages of decommissioning that updates a 20 year old legacy formula. We propose the selection of bonding levels that balance the need of the government to minimise its decommissioning exposure at an acceptable level of risk without incurring an excessive financial burden on owners. [Received: January 6, 2010; Accepted May 26, 2010]

Race Formations (Evolutionary Hegemony) and the `Aping' of the Australian Indigenous Athlete

In the article `The Fire Within', Anthony Mundine, the Australian indigenous boxer and world bantam weight title holder, is the subject of discussion around his inability to be his own man. Martin Flanagan (2006: 6) writes that `Mundine is commonly accused of aping Muhammad Ali'. Flanagan, regarded as sensitive to indigenous issues, does not use quotation marks in recognition of the underlying politics of race invoked. An extraordinary oversight, this suggests that the status of elite athlete does little to deter derogatory inferences to the humanity of the racial `other'.1 Critical race theorists, Omi and Winant (2002), claim that race is central to society not an irregularity within it. I draw on the critical race construct of race formations (evolutionary hegemony) to chart the changing significance of race mediated through reference to the indigenous racial `other' as `ape-like' in the Australian sports media. To set the theoretical boundaries, I develop an etymology of `aping' drawing on Bindman's (2002) construct of aesthetics (beauty), Darwinian evolutionary theory (Watson, 2005) and colonial mimicry (Bhabha, 1994). I argue that narratives depicting the `ape-like' constitute mimicry that relies on ambiguity to invoke the subordinate status of the `other'. To that end, I employ content analysis of media texts to bring to light the racial project demarcating the ape.

Information Cannot be Owned: There is More of a Difference than Many Think

Apart from technology, the information age has up to now badly served its idol. It has failed sufficiently to recognize specific features of information. This is shown with respect to the question whether legal rights on information can take the form of ownership. The answer is negative considering that communication by its very nature is free and constitutes a basic value, and furthermore that law is itself information and cannot systematically dispose of information flows. Analyzing the phenomenon of information, the differences of its properties as compared with those of a physical object are illustrated and assessed as fundamental; ownership would therefore be for information a Procrustean bed leading to mere arbitrariness. Intellectual property, although granting exclusive rights concerning information is not by itself opposed to these findings. But the conflict arises, if its purpose of shaping competitive advantages is spoiled to the detriment of information flows by lack of neutrality in two senses: the lack of balance between the title holder's value generation and the reward, and of neutrality towards the various kinds of communicative relationships.

Equitable Self-Ownership for Animals

This Article proposes a new use of existing property law concepts to change the juristic personhood status of animals. Presently, animals are classified as personal property, which gives them no status or standing in the legal system for the protection or promotion of their interests. Professor Favre suggest that it is possible and appropriate to divide living property into its legal and equitable components, and then to transfer the equitable title of an animal from the legal title holder to the animal herself. This would create a new, limited form of self-ownership in an animal, an equitably self-owned animal. Such a new status would have two primary impacts. First, the animal would have access to the legal system, at least in what has historically been the realm of equity, for the protection and assertion of his or her interests. Secondly, the human holder of legal title will, like a traditional trustee, have obligations to the equitable owner of the animal, that is the animal himself. As the subject matter of this trust-like relationship would be a living being, not money or wealth, the legal owner would best be characterized as a guardian, rather than by the traditional category of trustee. The Article concludes with a short discussion of the use of anti-cruelty law and human guardianship concepts as providing a context for the further development of this new concept of equitable self-ownership. Copyright © 2000 by David Favre. † Professor of Law, Michigan State University-Detroit College of Law. Professor Favre has been involved with legal animal issues for over 20 years as a board member of the Animal Legal Defense Fund. The author wishes to thank a number of people who helped with researching and editing the material contained in this Article, including Joyce Tischler, Steve Ann Chambers, Barbara Newell, David Wolfson, Henry Cohen, and Michael Kelly. FAVRE 11/20/00 6:24 PM 474 DUKE LAW JOURNAL [Vol. 50:473

Quantifying Interests Under Resulting Trusts

Only on divorce or legal separation is a court empowered to redistribute the assets of a married couple.' Similar powers are not available upon the break-up of relationships of cohabitees. Even in the case of married couples, the redistributive powers do not apply when a claim is made by a third party creditor against the legal title holder. It has been clear since the decision of the House of Lords in Pettitt v Pettitt,2 over a quarter of a century ago, that in such cases a dissatisfied non-legal title holder, whether a spouse or cohabitee, must have recourse to ordinary property principles. The doctrine of family assets flourished for a period in the 1950s and 1960s, allowing a beneficial share to a non-legal title-holding spouse who had made a substantial contribution, directly or indirectly, to the purchase of property. Thus, in Fribance v Fribance,4 Denning LJ was able to state that 'the whole of the [spouses'] resources were expended for their joint benefit either in food and clothes and living expenses for which there was nothing to see or in the house and furniture which are family assets and the product should belong to them jointly. It belongs to them in equal shares.' Couples in sexual relationships rarely give thought to proprietary rights before they separate and the doctrine of family assets was premised on an imputation of what they would have agreed had they considered the matter. Community of ownership based on this fictitious intent was rejected by the House of Lords in Pettitt v Pettitt,5 and again in Gissing v Gissing.6 The leading modem case is the 1990 decision of the House of Lords in Lloyds Bank v Rosset, which follows the trend favouring orthodoxy. As fictitious intention is unacceptable,8 ordinary property principles require the non-legal title holder to prove the existence of a real agreement or 'common intention' as to the extent, if any, of his beneficial ownership. Common intention may be manifested by oral representations of the legal title holder.9 In the absence

Use of Computers in Educational Research

SINCE Martin and Hall wrote their chapter concerning data processing for the December 1960 REVIEW, the computer field has been kaleidoscopic, with new developments appearing and older trends growing to new levels. Perhaps the most marked change has been in the equipment field. In the previous REVIEW period, the basic computer was the IBM 650, although a few major universities either had built their own large-scale computers or had acquired a large-scale machine returned to the manufacturer by the aerospace industry. A significant change in this pattern has arisen, primarily as a result of the convergence of four factors: (a) availability of the transistorized computer, (b) change in the fiscal point of view within university administrations, (c) substantial educational discounts (up to 60 percent) from the manufacturers, and (d) significant financial support from the National Science Foundation. Because of these four factors, most major universities have installed the newest and most powerful computers available, with Control Data Corporation 1604's and IBM 7090's dominating the large machine field. The holder of the unofficial title of the most powerful computer on a college campus has changed many times during the period under review. The current title holder is the Control Data 3600 at Michigan State University. As of the most recent survey, there were 299 computers either installed or on order for colleges and universities (Datamation, 1962). Unfortunately, many of the professional journals have not reflected this change in equipment and have continued to publish far too many programs for IBM 650's and similar obsolete machines. Accompanying the trend to the large-scale second generation computers has been a parallel trend to such small, less expensive computers as the IBM 1620 and the Control Data Corporation 160-A. The wide distribution and relatively low operating costs of these small computers have enabled large numbers of persons to obtain firsthand experience in the use of computers. As a result, a market now exists for textbooks written around the design, operation, and programming of a particular computer. The text by Leeson and Dimitry (1962) for the IBM 1620 is an excellent example of this type of book, and similar efforts based upon the popular large-scale computers are certainly in order. A few years ago, a computer specialist speaking at an educational conference devoted the major portion of his presentation to explaining the characteristics of computers and a minor portion to discussing the relevant

Joint Tenancy, Taxwise and Otherwise

JOINT TENANCY, a method of holding title to property once very much in vogue among the feudal barons,' is enjoying even greater popularity today among all classes.2 In ancient times its great advantage was that it evaded the barons' creditors and held together vast estates. Today its appeal lies in the avoidance of the probate court with its attendant expense. Hundreds of surviving joint tenants have so informed the writer in his capacity as attorney for the State Inheritance Tax Department. In addition, the lay public labors under the delusion that joint tenancy, of which it has been apprised by the neighborhood notary or escrow clerk, can save taxes. Finally, many laymen believe that joint tenancy is the answer to all testamentary problems. All too many are later sadly disabused of such ideas. At the outset let us recognize that joint tenancy is a convenient and inexpensive method of property disposition. It does offer procedural simplicity and does avoid some expense in many cases. It does get the title passed just as effectively as does a decree of distribution issued by a probate court. In fact the title has been transferred long before the death of one of the joint tenants, having passed when the joint tenancy was created.3 Such title is subject only to a cloud or encumbrance created by the existence of the other co-tenant, and upon his death, the survivor emerges as sole title holder. Only the death need be established, no more. More technically, it is sometimes said that each tenant acquired a specialized form of a life estate with what amounts to a remainder in the fee, contingent on survival.5 The high public opinion of this means of conveyance was amply demonstrated by the uproar over the attempt by the California Legislature in 1951 to make mandatory a court proceeding to terminate a joint tenancy. A form of conveyance standing in such high regard should be carefully analyzed before being condemned.7 Let us. consider what is transferred before examining the consequences