Trial Court Research Articles

Research on the Modernization of China's Court trial System

Abstract: To realize the modernization of trial work, the trial system is the foundation. Raise the flag and go steady and far. Since the modernization process, significant progress has been made in the reform and optimization of the functional system of the people's court, laying a solid foundation for the modernization of the trial system. The key to promoting the modernization of the trial system is to optimize the functional system of the court institutions, focusing on solving problems such as standardized institutional setup, coordination of functional exercise, and efficient system operation. In the reform of the functional system of the court institution, it is necessary to make overall plans to improve the system and mechanism, take good care of the coordination of the upper and lower left and right, and promote the real "chemical reaction" of the reform.

Virtual Court Communication Implementation: Studies on the Implementation of Online Criminal Trials in Courts

Virtual Court Communication Implementation: Studies on the Implementation of Online Criminal Trials in Courts

Where the Gavel Wields: The Jurisdictional Conundrum of Sedition in Hong Kong

Abstract The offence of sedition in Hong Kong, a colonial relic that has languished in a state of dormancy since the 1960s, has made an abrupt return to the city’s legal landscape following the enactment of the Hong Kong National Security Law. The confluence of these two regimes has engendered myriad nuanced legal intricacies that belie straightforward resolution, one of which occupies the focal point of this article: whether or not the District Court, an intermediate trial court with limited criminal jurisdiction, can hear sedition cases. This article engages this issue and contends that a coherent reading of the now multitude of legislative instruments constituting Hong Kong’s national security and criminal procedural regime yields a negative answer. Only the Court of First Instance, a superior court of record with unlimited criminal jurisdiction, is competent to hear sedition cases. In reaching this conclusion, this article engages with and diagnoses the errors in the diverse strands of reasoning put forward in the cases of HKSAR v Tam Tak Chi and HKSAR v Chan Tai Sum in defence of the District Court’s jurisdiction.

전자소송의 일반화와 증거법의 미래

The introduction of a new system through the enactment of a special law is very likely to cause conflict with the existing civil procedure law order. It is questionable whether phrases such as reading, listening, and viewing stipulated in the Korean Code of the Use Of Electronic Documents In Civil Litigations(hereafter KCUED) are still only adding to confusion. Moreover, the hierarchy between law and rules is broken down, so a reversal phenomenon in which rules determine the content of law is not uncommon. I think it is necessary to converge the KCUED to the KCCP. Furthermore, it will be necessary to take this opportunity to extract from each rule the content that should be stipulated in the KCCP. Meanwhile, efforts since 2015 to improve factual review are also considered to be an extremely necessary discussion. To this end, discussion on introducing the U.S. discovery procedure is also considered timely. However, it is a well-known fact from experience that better procedural norms require higher costs and more manpower. Ultimately, additional reinforcement and efforts of judges are required, but our reality is suffering from a shortage of judges. If so, I think it is necessary to take this opportunity to introduce diversity in the judicial system and make full use of trial researchers, who can be somewhat easily expanded, to alleviate the shortage of manpower in the courts. I hope that we will make efforts to co-exist, both for the law school and for the courts to gain strength. Lastly, while generalizing the electronic litigation platform and further promoting the next generation of electronic litigation with AI, we cannot create a civil court stained with dirty hands. Therefore, even in civil trial procedures, there must be a certain level of convergence while accompanying the criminal procedure law, which has a history of limiting the admissibility of evidence methods. It is not possible to create a civil trial court with clean hands overnight, but if we do not start now, we will have no choice but to throw dice on whose words we should believe amidst a flood of corrupted and distorted evidence methods.

상해보험에서 인과관계와 증명책임

The ruling deals with a case in which a dead person is diagnosed with spinal disorders and dementia at a hospital after a fall, and the airway is blocked during a meal. He usually suffered from myocardial infarction. In this case, it became an issue that the evaluation of impairment of various hospitals conducted to judge the causal relation between the accident and the result of the disability and death of the insured in the casualty insurance contract joined by the plaintiff. In order to judge the disability caused by the disaster, the court of first instance designated one hospital and applied for a fact inquiry. The causal relation between the fall accident and the disability of the deceased was denied because of the result of the fact inquiry of the hospital and the dead person’s previous symptoms. The Court of Appeals and the Supreme Court accepted the judgment of the Court of First Instance. However, it is difficult to understand the judgment of the court that there is no causal relation between the fall accident and the disability without various evidence collection procedures. On the other hand, the first court and the appellate court ruled that there is a direct connection between the suffocation and death of the dead man, while the Supreme Court denied it and ordered the reversal. The opinions of the hospital and the National Forensic Service, which judged the cause of death of the deceased, were contradictory. In addition, the results of the fact-finding of two hospitals conducted during the proceedings were also contradictory. Nevertheless, the decision to conclude that the cause of death was suffocation in the lower court trial is not convincing. In this way, despite the fact that the results of fact-finding of various hospitals in relation to the disability and death of the deceased are incompatible with each other, it is beyond the limit of free evaluation of evidence that the court ruled without observing the empirical or logical laws and ignoring the evidence trial. Therefore, I am in favor of the Supreme Court's order of reversal on the death caused by the disaster of the lower court, but I am opposed to the acceptation of the lower court's decision on the claim for disability.

Other-Repetition to Convey and Conceal the Stance of Institutional Participants in Chinese Criminal Trials

Based on the examination of 49 Chinese criminal trials transcribed from the audio-visual recordings on the ‘China Court Trial Online’ website (https://tingshen.court.gov.cn/), the institutional participants–prosecutors, defence lawyers, and judges–are found to frequently repeat defendants’ responses (‘other-repetition’), after a question–answer adjacency pair. Other-repetition has been described as a resource for showing participation and familiarity (Tannen 2007), initiating repair and registering receipt (Schegloff 1997), and displaying understanding and emotional stance (Svennevig 2004). However, other-repetition in trial discourse has not been thoroughly researched. Therefore, this article aims to further examine this salient institutional linguistic feature in order to explore stance construction as a third turn. It is common to associate certain prosodic features of a repetition with the stance of the speaker. However, prosody may not be a reliable cue for stance interpretation in Chinese courtrooms, as institutional participants might conceal their stance during a repetition. Though they are more explicit in displaying their stance with turn-initial repeats, the distinction between the prosody of repeats for different functions is not categorical. It is found that defendants are sensitive to the lexicogrammar and multimodal cues for stance interpretation.

COMPETÊNCIAS GERENCIAIS DO JUIZ: UM ESTUDO DE CASO EM UMA VARA DE ALTA PERFORMANCE

Abstract This article investigates the managerial competences that are most important for state trial court judges in the performance of their managerial tasks, and the relationship between these competences and management practice. This topic has not been fully explored in the scientific literature and the present study employed a qualitative approach supported by interviews, and document analysis. The research is a case study of the trial court of Espinosa City, of the Minas Gerais State Court, Brazil. The performance of this court is outstanding when compared with other similar trial courts. We interviewed 13 key actors in that judicial unit, including four judges, the court secretariat manager, five officials, a social worker, a prosecutor, and a lawyer. Each interview was conducted using a semi-structured interview schedule. The data was assessed using content analysis, with the support of ATLAS.ti and Iramuteq software. The results evidence eight judges’ managerial competencies and one resource (support team expansion). The competences are the following: People Management and Team Leadership, Judicial Proceedings Management, Communication, Systemic Vision, Innovative Action, Information Management, Technical Managerial Competence, and Outcomes-Oriented Management. These results and their relationship with court performance are herein discussed. A research agenda, managerial implications and improvements in the Judiciary’s management policies are also set out.

Students for Fair Admissions v. Universities for Division, Exclusion, and Inequity: The Petitions, the Arguments, and the Decision

Students for Fair Admissions v. Harvard (SFFA) will be studied by law students for generations, in much the same way that Bakke and Grutter were studied before. But there is much more to SFFA than the final decisions about Harvard University and the University of North Carolina will reveal. This Article, published for a symposium by the SMU Law Review, focuses on three stages of the litigation: the petitions, the oral arguments, and the decision. Part I recounts the complex procedural history, which began in federal courts in Massachusetts and North Carolina. The Harvard case reached the Supreme Court first, while the UNC case lingered in district court. The Supreme Court called for the views of the Solicitor General. By doing so, the Court could punt the case to the following term, which allowed the UNC case to catch up, and Justice Breyer’s replacement to be confirmed. Both cases would be argued on October 31, 2022. Part II parses the questions asked by all nine Justices during oral argument. Chief Justice Roberts signaled up front that he would rule against the universities. Justice Thomas repeated his charge that arguments in favor of racial preferences mirror the arguments made by segregationists. Justice Alito worried about discrimination against Asian-American applicants. Justice Sotomayor focused on the detailed findings of the trial courts. Justice Kagan questioned whether SFFA would favor universities with few or no racial minorities on campus. Justice Gorsuch looked to Title VI of the Civil Rights Act of 1964. Justice Kavanaugh suggested preferences could be reserved for the descendants of slaves. Justice Barrett inquired about the expiration date of Grutter. And Justice Jackson recounted how the Reconstruction Congress used racial preferences for the freedmen. Finally, Part III breaks down four aspects of the Court’s decision. SFFA eliminated the “educational benefits” rationale for affirmative action. Chief Justice Roberts continues to take inconsistent positions in similar cases during the same term. Justice Kavanaugh continues to follow the lead of Chief Justice Roberts in leading cases, including SFFA. And I defend Justice Jackson’s likely involvement in the Harvard case, notwithstanding her recusal.

Trying Perpetrators: Denazification Trials and Support for Democracy in West Germany

We study the effects of transitional justice (TJ) programs that punish large numbers of human rights violators through the lenses of social psychology theories on how individuals respond to punishment in allocative situations, including how defendants in court trials evaluate their verdicts. We analyze subnational variation in procedures and outcomes of denazification trials in West Germany during 1946-1947. Consistently with established findings in social psychology, we find that procedural justice and the distributive fairness of outcomes can compensate for the anti-democratic attitudinal effects of being a defendant in a TJ trial. We also find evidence that procedural justice influences the democratic attitudes of family members of TJ defendants. The study has implications for contemporary cases of TJ programs that affect large numbers of perpetrators.

Legal Policy on the Use of Heir Certificates (SKAW) for Registration of Land Rights Transfers in Indonesia

One of the requirements for the process of changing names in the transfer of land rights due to inheritance is to be proven by a Certificate of Heirship (SKAW). As a result of the pluralism of the civil law system in Indonesia, land policy in processing land registration due to inheritance requires the SKAW to be made by three institutions; the SKAW made by the Village Head/ Lurah and Authentic Deed by Notary, and the SKAW from the Inheritance Property Center for each population group is different. The enactment of the Population Law has eliminated racial discrimination in population classifications, leaving only Indonesian citizens and foreigners. This article aims to understand land law policies related to the making of SKAW after the Population Law and its legal force. The approach used to analyze the problem was a doctrinal approach using secondary data through legal materials. The results of the analysis show that the Indonesia's land law policy in implementing land registration due to inheritance after the Population Law no longer requires the creation of the SKAW according to population classification. It has an impact on the legal force of each SKAW legal product made by three officials, which is a binding legal product as a condition for registering land rights due to inheritance and can be used as evidence in court trials.

Участие в судебном заседании путем использования системы веб-конференции: за и против

The article examines the legal status of web-conferencing in the courtroom. Trial court litigation no longer requires physical presence in the courtroom because web-conferencing has become an integral part of the judicial system, thus facilitating people’s access to justice. However, many organizational issues remain unregulated, e.g., application timing, identification procedure, evidence examination and presentation, protocol procedures, etc. The legal regulation of the connection process and the consequences of non-compliance also remain a special issue. These organizational matters impact the ability of remote participants to defend their interests in court and obtain access to justice equal to those provided to in-person attendees. The author proposes various ways to enhance the norms of using web-conferencing systems in court, e.g., how to examine digital evidence in a web-conference format, how to provide web-conferencing facilities for every court session, etc. Web-conferencing at court needs stricter legislation, uniform legal standards, and clear procedures. The article offers an analysis of the existing information services, their technical capabilities, and alternative technological solutions for online participation in courts of arbitration and general jurisdiction.

Legitimately Incongruous: Exploring Artistic and Legal Interplays in A Game of War (2021)

This essay examines the filmed mock trial A Game of War (2021) by TWIIID, a Flemish legal soundboard for the arts, and its contribution to the discourse on appropriation art and the parody exception in copyright law. By focusing on the case of the (mock) trial between Samson Kambalu and Gianfranco Sanguinetti, the article delves into the intricate legal and artistic aspects within this specific context. While not comprehensive of the entire contemporary discourse on copyright and appropriation art, this case serves as a microcosm for examining and understanding major themes and issues. The essay argues that A Game of War functions as both a re-enactment and pre-enactment, acknowledging the limitations of conventional jurisdiction while closely adhering to established legal precedents. In doing so, the film highlights the temporal fluidity of p(re)enactments and the dynamic nature of temporality in law and performance. The explicit intertwining of past, present, and future emerges as a shared characteristic of both (p)re-enactments like A Game of War and court trials, wherein the past is reconstructed and potential futures are envisioned within the ‘now’ of the trial. Furthermore, by employing artistic methodologies such as p(re)enactments to enrich the imaginative capacities of the legal realm in the context of appropriation art and copyright issues, A Game of War compellingly expresses the potential for art and law to mutually inform and enhance one another. Consequently, the film opens new avenues for dialogue and fosters a deeper understanding of the intricate interplay between artistic expression and the complex web of legal frameworks.

Judicial proceedings within a reasonable time: European experience and Ukrainian realities

The study addresses the increasing number of appeals against Ukraine to the European Court of Human Rights, most of which highlight violations of the right to a fair trial within a reasonable time. The purpose of the study is to clarify the content of procedural time limits for criminal proceedings and conduct a comparative analysis of legislative approaches in European countries to regulate the mentioned issues. The methodological basis of the study is the principle of consistency, within which the methods of comparative and system-structural analysis, synthesis, logical-legal, statistical and heuristic methods were used. The study explores the existing legislative shortcomings related to ensuring reasonable time frames for criminal justice and investigates problematic issues for its improvement. It is noted that the previous criminal procedural legislation did not declare the principle of reasonable time for criminal proceedings and lacked means for its enforcement. The necessity of ensuring judicial proceedings within a reasonable time is declared in Articles 21, 28, and 318 of the Criminal Procedure Code of Ukraine. Emphasis is placed on the interconnection between reasonable time and the continuous nature of judicial proceedings, considering the proceedings as a whole to ensure their prompt conclusion. The absence of procedural safeguards in Ukrainian legislation against unjustified delays in the trial of criminal proceedings in the first-instance court is highlighted. The study analyses the legal provisions of national criminal procedural legislation and the regulatory framework of European countries (Bulgaria, Estonia, Italy, Croatia). The necessity of strengthening guarantees for timely justice is substantiated. A set of measures to ensure the time parameters of the trial in the first-instance court is proposed, encompassing both organisational and procedural guarantees. The need for establishing a justified legislative procedure for expediting judicial proceedings in case of violations of the accusedʼs and the victimʼs right to a reasonable time for conducting criminal proceedings is justified. The practical value of the study lies in the fact that its results and recommendations can be utilised for the reform of the judicial system

PENEGAKAN HUKUM TINDAK PIDANA PEMILU PADA PEMILIHAN KEPALA DAERAH DI KABUPATEN LOMBOK UTARA TAHUN 2020

Pilkada is the implementation of people's sovereignty to elect regional leaders directly and democratically. It is known that the number of Election Crimes in North Lombok Regency is eight cases where only one case reached trial and was convicted. The purpose of this research is to find out the law enforcement efforts of Election Crimes in the 2020 regional head elections in North Lombok Regency. The benefits of this research are expected to contribute as a reference for election law enforcers to maintain and uphold elections in accordance with electoral principles. This type of research is empirical legal research using a case approach, conceptual approach, and statutory approach. This research then results in that election crimes are resolved by the North Lombok Regency Gakkumdu Center consisting of elements of the North Lombok Resort Police, the Mataram District Attorney's Office and the North Lombok Regency Bawaslu, which in its implementation, the understanding and focus of knowledge regarding elections and law enforcement of criminal acts are different, resulting in many events registered as alleged violations of election crimes at the North Lombok Regency Bawaslu that cannot be handled until the trial in court, due to factors of fulfillment of the elements of the article, evidence and interpretation of the article among the North Lombok Regency Gakkumdu Center personnel who mostly do not find conclusions that are in agreement with each other.

A Study on Resolving Disputes in Trial Courts through Online Dispute Resolution in India

A Study on Resolving Disputes in Trial Courts through Online Dispute Resolution in India

Cultural expertise in mafia trials in Italian law courts

Cultural expertise in mafia trials in Italian law courts

상속권 상실 선고에 관한 법무부 민법 개정안

Is it fair for parents who did not raise their children to inherit property after their children’s death? In response to this question, the Ministry of Justice of Korea submitted a civil law amendment bill to the National Assembly that introduces a system of disinheritance. This article introduces and reviews such civil law amendments. The main conclusions are as follows: First, in terms of legal stability, it is not appropriate to include violation of duty to support as a reason for disqualification from inheritance. It is also not appropriate for inheritance disqualification to be treated as a preliminary issue in civil litigation. However, termination of parental rights can be recognized as a reason for disqualification from inheritance.
 Second, when depriving an heir of his inheritance rights, it is desirable to have it go through a court trial. If it is allowed to unilaterally deprive the heir of the inheritance right by the will of the heir, there is a risk that the decedent will arbitrarily deprive the heir of the inheritance right.
 Third, If the deceased did not express his/her intention to deprive the heir of his/her inheritance rights during his/her lifetime, such heir should not be deprived of the right to inheritance even if the reasons for loss of the right to inheritance are met. If the level of disqualification from inheritance has not been reached, the will of the deceased is necessary to justify the result of Disinheritance.

July 14th 2016 Nice Terrorist Attack Court Trial: A Protocol on Sleep Quality and Somatic Symptoms as Markers of Risk for Traumatic Reactivation in Adolescents Exposed to This Attack.

The court trial of the 14th of July 2016 terrorist attack in Nice (France) opened in September 2022 and ended in December 2022. Engaging in court proceedings, whether as a victim or a witness, can lead to a significant risk of traumatic reactivation (i.e., the re-emergence of post-traumatic stress symptoms). The present protocol aimed to improve knowledge of the pathophysiology of traumatic reactivation due to the media coverage of the trial by assessing sleep disturbances and somatic symptoms that could reappear if there is a traumatic reactivation. Method and Analysis: This is a monocentric longitudinal study, with recruitment solely planned at the Nice Pediatric Psychotrauma Center (NPPC). We intended to include 100 adolescents aged 12 to 17 years who were directly or indirectly exposed to the attack and included in the "14-7" program). Assessments began one month before the trial, in August 2022, and were scheduled once a month until the end of the trial. A smartwatch recorded sleep activity. Somatic and PTSD symptoms and sleep were assessed through validated questionnaires. The main analyses comprised the variance and regression analyses of predictors of clinical evolution over time. Ethics and Dissemination: The National Ethics Committee "NORD OUEST III" approved the "14-7" program protocol (number 2017-A02212-51). The specific amendment for this research was approved in April 2022 by the same national ethical committee. Inclusions started in August 2022.

Towards Abolition of the Doctrine of De novo Trials in Nigerian Courts

Whenever the problem of delay in the administration of justice is discussed the doctrine of de novo trial comes into focus with the various perspectives that the phenomenon presents. The Nigerian situation is as simple as stating that while the society is growing and moving forward, the Nigerian law (one of which is de novo trial) is dragging it backwards. The end result is that it is not only expensive and breeds delay and denial of justice, the system and those running it do not seem to bother and those affected do not also seem to have the will to make a fuss and perturbation. Yet, around the world, the evidence that the doctrine has been abandoned because it is ‘bizarre’ is so glaring that why it is still being maintained, entrenched and eulogized in Nigeria drives this study which adopts the doctrinal method. The study finds that de novo is a procedural bench problem and seeks to highlight that there are no dangers inherent in abolishing the procedure in the trial process where a Judge is elevated, dies, resigns, retires or is transferred so that his successor can continue from where he stopped and so that de novo can only be resorted to in the appellate realm where the need arises.

The Mifepristone Litigation: Untangling the Implications of the Fifth Circuit's Decision for Abortion Access and the U.S. Food and Drug Administration.

In August 2023, a federal appeals court issued an opinion in Alliance for Hippocratic Medicine v FDA, a case wherein a group of antiabortion medical organizations and physicians have challenged U.S. Food and Drug Administration (FDA) approval and regulation of mifepristone. This opinion contained some good news for the FDA, drug makers, and patients: the appeals court declined to halt the marketing of mifepristone altogether (as the trial court judge would have). But the court also decided that the FDA's 2016 and 2021 actions expanding the indication for mifepristone, lowering the drug's dose, and loosening restrictions on its distribution and use were likely unlawful, and it thus affirmed the trial court's order staying these actions. In this article, we explain key aspects of the opinion to health care professionals and consider the ways in which the appeals court's reasoning and conclusions, if followed by the Supreme Court, could undermine abortion access and public health going forward.