scholarly journals Who benefits from corruption in courts

2020 ◽  
pp. 440-446
Author(s):  
Vasyl Sirenko
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Effective Means ◽  
The State ◽  
Law And Order ◽  
Social Nature ◽  
State And Society ◽  
The Supreme Court ◽  
Integral Element ◽  
Democratic Rule

The article covers the issues of preventing and combating corruption in the judiciary. It is noted that corruption in the judiciaryharms the state the most, because law and order in the state and society depend on the proper functioning in this area. The existence ofa democratic, rule-of-law and social state is impossible without a fair and objective court. Bribery should be considered the essentialbasis of corruption. By its social nature, corruption is a biological and social phenomenon.The author’s vision of combating corruption in courts is based on the theory of interest, as corruption in its formation and realizationuses the same mechanism as interest. Questioning who benefits from corruption in courts, the author believes that it is supportedby those who seek to satisfy their needs and interests through the acts of corruption of judges.The most effective means of combating corruption in courts should be the detection of a corruption judgement through the systemof control and the inevitability of punishment for acts of corruption.It is argued that eradicating corruption in courts will contribute to the introduction of precedent character of the Supreme Courtdecisions and the introduction of a revision form of appeal against judgements. Guided by a precedent decision, a judge will not be ableto legitimize arbitrariness. It is proposed to create special structures endowed with the rights of the Plenum of the Supreme Court todevelop precedent decisions on certain categories of cases in various branches of law.Emphasis is placed on the weak development in effective legislation of Ukraine of the mechanism of legal liability of judges, theimperfection of the means of detecting illegal judgements made by specific judges; the lack of tools for prompt response to judges’offenses.It is noted that the institution of judicial unlimited term of office has largely contributed to the formation of corruption in courts.Only a system of justice making a judge dependent on mandatory requirements for a particular offense can help eradicate corruption incourts. The precedent character of decisions of the Supreme Court must be an integral element of such a system. Such a system hasbeen tested for decades in other countries. It can become an effective anti-corruption program for combating corruption in Ukrainianjudiciary.

scholarly journals SIGILOS BANCÁRIO E FISCAL NO BRASIL: FUNDAMENTO CONSTITUCIONAL, HISTÓRICO LEGISLATIVO E PRECEDENTES JUDICIAIS / Bank secrecy and tax confidentiality in Brazil: constitutional basis, legislative history and judicial precedents.

2017 ◽  
Vol 15 (2) ◽  
pp. 75-109
Author(s):  
Gisela Carvalho Freitas e Meneses ◽  
Celso De Barros Correia Neto
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Data Transfer ◽  
Historical Evolution ◽  
Legislative History ◽  
Bank Secrecy ◽  
The Supreme Court ◽  
Democratic Rule

RESUMO: Este trabalho discute a possibilidade de transferência de dados bancários do contribuinte ao fisco, a partir do estudo sobre a constitucionalidade da Lei Complementar n. 105/2001, que disciplina o acesso do fisco às informações bancárias dos contribuintes, analisando a doutrina, a legislação e a jurisprudência brasileiras à luz do dever fundamental de pagar tributos. Discorre sobre os conceitos de sigilo bancário e fiscal e a evolução histórica do sigilo fiscal no Brasil e analisa o caráter instrumental dos tributos no Estado Democrático de Direito, especialmente pela análise dos julgados do Supremo Tribunal Federal a respeito do tema.ABSTRACT:This paper presents the discussion about the possibility of bank data transfer from the taxpayer to tax authorities through the study on the constitutionality of Supplementary Law No. 105/2001, which regulates the tax authorities’ access to bank information of taxpayers, analyzing the doctrine, legislation and the Brazilian jurisprudence out of the fundamental duty to paying taxes. First, it discusses the concept of banking and tax secrecy and the historical evolution of tax secrecy in Brazil. Then, it analyzes the fundamental duty to paying taxes, emphasizing the instrumental nature of the taxes in the democratic rule of law, since it must perform the materialization of equality through the identification of the paying tax ability of every citizen. Finally, it was conducted a study of existing discussions of the Supreme Court on the matter.

scholarly journals KEWENANGAN MAHKAMAH AGUNG REPUBLIK INDONESIA DALAM PEMBUATAN PERATURAN TENTANG PERMOHONAN PERNYATAAN PAILIT MELALUI SURAT EDARAN (BELEIDSREGELS) DITINJAU DARI SUDUT ILMU PERUNDANG-UNDANGAN

2019 ◽  
Vol 2 (2) ◽  
pp. 646
Author(s):  
Samuel Tirta Handoyo ◽  
Cut Memi
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Descriptive Analysis ◽  
The State ◽  
Legal Research ◽  
Government Action ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Circular Letter ◽  
The Status

One important element of the rule of law is that any government action must be based on law. The consequence is that laws must be made, implemented and enforced. Therefore, the state has the power to make laws to regulate all its activities. The Supreme Court as one of the highest judicial institutions in Indonesia has the status of all the courts and as the highest court for the four judicial institutions. The regulating and oversight functions are part of the functions of the Supreme Court, where the Supreme Court is authorized to issue further regulations in the form of Supreme Court Regulations and Supreme Court Circular Letters, where Supreme Court Regulations are regulating, whereas Supreme Court Circular Letters are as policy regulations. However, in practice the substance of the Supreme Court Circular is often not in accordance with its requirements, namely as a policy regulation. One of them is the Supreme Court Circular Letter Number 2 Year 2016 concerning Increasing Efficiency and Transparency in Handling Bankruptcy Cases and Delaying Obligations of Debt Payment in Courts. The writing of this thesis will discuss the authority of the Supreme Court in determining the substance of the Supreme Court Circular Number 2 of 2016 in terms of statutory knowledge. Judging from its nature, the research used is descriptive analysis using normative legal research.

scholarly journals Laicidade, gênero e suas implicações no Estado Democrático de Direito: A necessidade de uma ecologia integral | Laicity, gender and their implications for the Democratic Rule of Law: The need for an integral ecology

2021 ◽  
Vol 6 (1) ◽  
pp. 55-65
Author(s):  
Daiana Allessi Nicoletti Alves ◽  
Wanessa Assunção Ramos
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Female Gender ◽  
Document Analysis ◽  
The State ◽  
Inductive Method ◽  
The Political ◽  
Democratic Rule ◽  
Federal Supreme ◽  
Secular State

Em 10 de julho de 2019, Jair Messias Bolsonaro disse: “Muitos tentam nos deixar de lado dizendo que o estado é laico. O estado é laico, mas nós somos cristãos. (...) Por isso, o meu compromisso: poderei indicar dois ministros para o Supremo Tribunal Federal. Um deles será terrivelmente evangélico”. O tema do presente artigo, portanto, é o estado laico na República Federativa do Brasil diante do incitamento político de algumas religiões em detrimento de outras e a notória influência histórica que algumas crenças apresentam com relação ao aspecto do gênero. O objetivo geral é analisar como a violação ao estado laico influencia nas questões do gênero feminino e, consequentemente, viola o Estado Democrático de Direito. Para tanto, os objetivos específicos são: a) analisar o Estado Democrático de Direito e o princípio do estado laico; b) analisar os requisitos para compor o Supremo Tribunal Federal; e c) analisar a influência de crenças religiosas com relação ao gênero feminino. A metodologia a ser utilizada é de pesquisa qualitativa, por intermédio de um método indutivo com análise documental. A presente pesquisa apresentou como resultado a violação ao Estado Democrático de Direito, em 2019, acerca da laicidade do estado, que feriu diferentes princípios constitucionais. On July 10, 2019 Jair Messias Bolsonaro said: “Many try to leave us aside saying that the state is secular. The state is secular, but we are Christians. (...) Therefore, my commitment: I will be able to appoint two ministers to the Federal Supreme Court. One of them will be terribly evangelical.” The theme of this article, therefore, is the secular state in the Federative Republic of Brazil, in view of the political incitement of some religions to the detriment of others, and the notorious historical influence that some beliefs have in relation to the aspect of gender. The general objective is to analyze how the violation of the secular state influences women's issues and, consequently, violates the Democratic Rule of Law. Therefore, the specific objectives are: a) to analyze the Democratic Rule of Law and the principle of the secular state; b) analyze the requirements to compose the Federal Supreme Court; and c) analyze the influence of religious beliefs regarding the female gender. The methodology to be used is qualitative research, through an inductive method with document analysis. The present research presented as a result the violation of the Democratic Rule of Law, in 2019, concerning the secularity of the state, that hurt different constitutional principles.

scholarly journals Transgender Community in Pakistan: From Marginalized “aliens/others” to Empowered “Citizens”?

2020 ◽  
Vol 2 (2) ◽  
pp. 28-42
Author(s):  
Saad Ali Khan
Keyword(s):  
Supreme Court ◽  
The State ◽  
Fundamental Rights ◽  
The Past ◽  
State And Society ◽  
The Supreme Court ◽  
The Status

Almost a decade ago in 2009, a landmark decision of the Supreme Court of Pakistan set the trajectory for transgender community’s future. This was considered as the first step that ignited a new spirit among the transgender community in Pakistan; and they started actively pursuing the struggle for their fundamental rights. Transgender community in Pakistan has been marginalized since the inception of Pakistan. In Pakistan, transgender individuals have been pushed to the margins/peripheries of the society facing extreme levels of discrimination, rejection, stigmatization, violence and “otherness”. For years, both state and society have considered these individuals and their communities as “others”, “abnormal” or “threat to the structure of the society”. Faced with these conditions, the transgender community also passively withdrew from the mainstream and accepted this as their fate. This article is aimed to explore and analyze the transition in the status and condition of transgender community in the last decade (2009-2019). It is also aimed to highlight the role of transgender community and other actors in bringing about the change in their status. Reviewing the last decade of activism led by the transgender community and other actors; it is demonstrated in this article that the transgender community has gained momentous/historic achievements (especially legal) since then. From extreme marginalization and stigmatization: they have started to earn respected status in the society. While in the past they were considered as “outcastes” and “others” by the society and state alike, now, they are mostly considered as an integral part of the society especially by the state.

scholarly journals On the legal feignfullness in the sanitary and epidemiological sphere against the background of the COVID-19 pandemic

2021 ◽  
Vol 27 (3) ◽  
pp. 228-234
Author(s):  
Irina P. Bakulina ◽  
Dmitry A. Kirillov
Keyword(s):  
The State ◽  
Negative Consequences ◽  
Social Tension ◽  
Social Nature ◽  
Legal Nature ◽  
State And Society ◽  
The Supreme Court ◽  
Long Time ◽  
The Russian Federation ◽  
Legal Restrictions

Sanitary and epidemiological processes against the background of the COVID-19 pandemic have confirmed the prevalence of legal feignfullness in Russia. For a long time, legal feignfullness has been officially mentioned only in the Civil Code of the Russian Federation and has been assessed by the state and society quite neutrally. The assessment has not changed much even with the recent introduction of administrative responsibility for feigned accounting, although the nominally in this branch of law assessment of legal feignfullness has become negative. Against the background of anti-COVID sanitary and epidemiological measures, the neutral attitude of society to legal feignfullness changed to a negative one and coincided with administrative and legal negative assessment of legal feignfullness. This makes it topical to eliminate the negative consequences of legal feignfullness in the sanitary and epidemiological sphere; to determine the legal means of blocking conflict-causing factors; to prevent new manifestations of legal feignfullness. It is revealed that the high alert mode is largely feigned, covers up a “hybridˮ regime of a dubious legal nature with an unreasonable amount of legal restrictions and insufficient state guarantees. The interpretation of the Presidium of the Supreme Court worsens, in comparison with the law, the legal fate of persons brought to justice for violating the “anti-COVIDˮ rules. All this generates social tension and distrust of the anti-pandemic measures of the state as feigned ones. The article contains recommendations for neutralising the consequences of legal feignfullness. In addition, the increase in social tension against the background of the COVID-19 pandemic further demonstrated the existence of feigned legal phenomena of a general social nature, in particular, in the areas of federalism, legality, as well as solidarity of the state and society.

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
House Of Representatives ◽  
Good Governance ◽  
Constitutional Court ◽  
Due Diligence ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Institutional Status ◽  
The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Administrative Law ◽  
The State ◽  
Government Officials ◽  
Criminal Process ◽  
The Supreme Court ◽  
State Finance ◽  
The Law ◽  
To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

James Kraig Kahler v. State of Kansas: On Writ of Certiorari to the Supreme Court of the State of Kansas

2019 ◽  
Author(s):  
Steven J. Twist ◽  
Paul G. Cassell ◽  
Allyson N. Ho ◽  
Bradley Hubbard ◽  
John Ehrett
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Supreme Court
Sign in / Sign up

Export Citation Format

Share Document