인허가 의제규정의 효력 범위와 지방세법상 분리과세대상 규정의 관계

There are five major Supreme Court precedents related to inheritance and gift taxes for 2022. In this article, the above five precedents were divided into facts, issues, the position of the Supreme Court, and the significance and evaluation of the judgment in chronological order.
 First of all, the Supreme Court's ruling on March 11, 2022, on whether to invalidate the enforcement ordinance related to Article 41 (1) of the former Inheritance Tax and Gift Tax Act, reaffirmed the position of the Supreme Court's ruling of 2015Du45700 on April 20, 2017 and the Supreme Court's decision of 2019Du35695 on September 9, 2021. The above judgment is valid in that the scope of gifts through corporations is limited through interpretation. However, it is necessary to review whether it is right to follow the materiality and clarity test of the illegality of administrative disposition.
 Second, the Supreme Court's ruling on the taxation and additional tax on the deeming property registered in name of another person to have been donated related to the acquisition of new stocks on September 15, 2022 is about the legal interpretation of the old tax and gift tax law in which the gift tax payer was in principle a trustee at the time of title trust. The target judgment judged that the case in which the title truster acquired new shares as collateral and transferred them under the same person's name, but before the transfer was made, the case in which the loan was repaid with the sale price of the existing title trust shares was not different. From the perspective of sanctions on the total amount of property that is difficult to grasp by title trust, it must be judged as the subject judgment. In addition, it was confirmed for the first time that the subject judgment should be based on the name trustee to determine whether the additional tax is imposed based on the taxpayer. If the above logic is applied to the current tax increase law, it should be judged based on the title truster who is liable for tax payment.
 Third, the Supreme Court's 2022Du33712 ruling on the scope of cancellation of disposition on May 26, 2022 reaffirms the previous precedent (Supreme Court March 28, 1997) that only the portion exceeding the legitimate tax amount should be canceled if the lawsuit for cancellation of the tax disposition exists. It is reasonable in that there is no need to appeal again for parts that exceed the legitimate tax amount.
 Fourth, the Supreme Court's ruling on November 10, 2022, 2020Du52214 is a precedent on whether to recognize self-gifts related to Article 45-3 of the former Inheritance Tax and Gift Tax Act (before amended by Act No. 13557 on December 15, 2015). The above ruling is the first case in which the donor and the recipient cannot be said to be the same, even though the controlling shareholders of the beneficiary corporation are shareholders of a related corporation at the same time. Given that agenda regulations that are disadvantageous to taxpayers need to be interpreted in a limited way, it is necessary to review whether the above judgment is correct.
 Finally, the Supreme Court's decision on December 29, 2022 on the method of calculating gift profits according to the comprehensive exchange of stocks followed the previous precedent (the Supreme Court's decision on March 29, 2018) that gift taxes should be levied by applying Article 42 (1) 3 of the former Inheritance Tax Act. In addition, the target judgment clarified the application of Article 31-9(2)5(b) of the Enforcement Decree of the former Inheritance Tax Act (before amended by Presidential Decree No. 20621 on February 22, 2008), which is the basis for calculating the gift property value of a company that becomes a full subsidiary due to stock exchange.

Lessons for the Future of Affirmative Action from the Past of the Religion Clauses?

This article examines the validity of the Korean Supreme Court's February 23, 2023 decision (2022da287383) regarding anti-social order acts under Article 103 of the Civil Code caused by abuse of economic status. It reviews the Supreme Court's decisions on contract freedom and self-determination, the issue of disparities in economic power between parties, and the trend of Supreme Court decisions on the abuse of economic status. Additionally, the relationship between the abuse of transactional status under the Fair Trade Act and Article 103 of the Civil Code is examined. The anti-social nature of the abuse of economic status is based on the fact that it restricts an individual's freedom of economic activity by imposing excessive counterperformance and violates the fair market transaction order. Contracts concluded under circumstances where the parties' self-determination is not guaranteed due to differences in economic power fail to meet the prerequisites of contractual freedom and thus require regulation. However, the criteria for such regulation are ambiguous, and there is a risk that it could be easily applied in any case, potentially constituting a significant infringement on contractual freedom, which must be guarded against. In the subject judgment, two companies with significant differences in capital and duration entered into the contract in question, stipulating that the plaintiff would be liable for damages caused by intentional or negligent acts during the brokerage and agency services. However, the case involved a separate agreement imposing joint guarantee obligations and subrogation obligations on the plaintiff for the default of the loan agreement user. The subject judgment determined that even though the parties had already established procedures for contractual liability through the contract to ensure objectivity and fairness, imposing additional liability through a separate agreement beyond such procedures could be deemed unfair and violate Article 103 of the Civil Code. It thus introduced a new specific type of case where abuse of economic status constitutes an act contrary to public order. Whether there was an abuse of economic position ultimately depends on whether the primary cause leading the party to engage in the legal act was the economic disparity between the parties, from the perspective of whether the party's decision-making was restricted. The unfairness that serves as the basis for anti-social conduct should be determined by assessing whether the content of the legal act violates public economic order, taking into account the motives and purposes of the legal act, the extent of the economic disparity between the parties, the benefits obtained by one party and the nature and extent of the consideration borne by the other party, and the practices of similar transactions. The Supreme Court has adopted a cautious approach in recognizing violations of Article 103 of the Civil Code due to the abuse of economic status, while seeking to establish specific types of cases where antisocial conduct is recognized, as in the subject judgment. This approach appears to reflect an effort to prevent the arbitrary abuse of Article 103 of the Civil Code in legal transactions between parties with economic disparities, while ensuring predictability regarding abstract standards.

Statutory Exceptions at British Law: Implications for the Appellate Jurisdiction of the United States Supreme Court

This article considers the law of confessions in England and the United States of America Supreme Court's Fourteenth amendment cases, with a focus on suspects who are vulnerable. The question that is asked in the piece of work is whether the English statutory provisions and the decisions of the US Supreme Court provide sufficient protection to vulnerable suspects who falsely confess to crimes. A novel approach is adopted with this comparative analysis as it extends the knowledge base by examining vulnerability and the law of confessions within two jurisdictional parameters. A further contribution to knowledge can be seen as the paper provides a bespoke piece of legislation that affords protection to such individuals, and thereby adds to the current debate on vulnerability in the criminal justice system. Firstly, the work critically examine why vulnerable suspects will falsely confess to criminal acts. It will be established that vulnerable suspects may confess even if they have not been coerced, and this will be the foundational basis for the suggested reform: a vulnerable suspects confession should be excluded as a result of their characteristics or that such individuals should be provided with mandatory legal advice. The focus will then turn to the extant position in England, where it will be revealed that confessions will be excluded if they have been obtained by unfair practices or through inhumane or degrading treatment. It will also be recognised that the English jurisdiction affords limited protection to vulnerable suspects even though they are entitled to legal advice and an appropriate adult being present. The US Supreme Court's position will then be evaluated by chronologically critiquing the use of the due process clause in cases of confessions. It will be identified that the vulnerability of the individual can be considered in determining whether a confession should be excluded but cannot be utilised in isolation of other factors. The two jurisdictions will then be critically compared and the positive and negative aspects of the law in the jurisdictions will be evaluated. It will be established that neither England nor the US Supreme provides sufficient protection to vulnerable suspects and the law requires further refinement, by placing priority on mandatory legal advice and/or an opportunity to exclude the confession. A de novo remedial statutory provision for England is provided as an effective solution to the issue of vulnerability and false confessions.

The article provides comprehensive overview of the diverse landscape of supreme courts across Europe, offering insights into varying structures and functions they embody across different countries. It analyses supreme courts as the only supreme judicial institution or as a part of a broader supreme court system alongside supreme administrative court and/or constitutional courts. The article highlights the diversity in organization of supreme justice and offers a glimpse into a larger project on comparative supreme justice, indicating in-depth analysis of various factors such as the position of supreme courts in different states, recruitment process and the courts’ competencies on the European scale. The article provides valuable insights into the complex and multifaceted nature of supreme courts in Europe. Its approach to presenting specific examples enables a deeper understanding of the topic, making it a useful resource for readers interested in comparative legal systems and judicial structures in different countries. The paper identifies impact of filter model on a Supreme Court’s workload and efficiency of the Court, as well as on the structure. Furthermore, it refers to possible shortcomings of filter model and the jurisprudence of the European Court of Human Rights in that regard.

Recent work in forest tax theory has stimulated renewed discussion of local government taxes on forests. Several authors, for differing reasons, have found fault with the traditional Fairchild (1935) conclusion that the annual property tax on full market value is always biased against deferred yield forestry (Trestrail 1969, Klemperer 1974, Pasour and Holley 1976). Yet the conclusion among many researchers remains that such a tax is likely to be biased against certain types of forest land use (Bentick 1979, 1980; Klemperer 1978). The proper forest property tax modification, however, is still a topic of much debate. Some suggest that property taxes be levied only on forest land, while exempting timber (Zivnuska 1969, Cartwright and Dowdle 1979) as done in several states, including Tennessee, North Carolina, Iowa, and Alabama (Carlan 1978). Other approaches give partial timber exemptions or replace property taxes with a yield tax at harvest date. This article aims to describe the nature and magnitude of property tax biases against certain land uses. Assuming that tax policy should seek to avoid gross nonneutralities, which could distort market allocation of resources, this study evaluates potential adjustments in forest property taxes that would achieve greater neutrality. The approach will be to review theoretical land use impacts of a property tax on full value of (1) land and improvements for forest and nonforest uses, (2) forest land only, while taxing land and improvements for other uses, and (3) the value of forest land plus forest establishment costs.1 It is found that case (1) would be biased against land uses with long payoff periods or high ratios of improvements to land value, and case (2)

The principles of corporate attribution have always been a complex area of law, rife with uncertainty and controversy. The recent Supreme Court's decision in Crown Prosecution Service v Aquila Advisory Ltd is notable for clarifying the scope of the principle as articulated in its previous decision of Bilta (UK) Ltd v Nazir. This time, however, the Supreme Court was confronted with an issue that was hitherto unaddressed by previous courts: whether proprietary rights to which a principal would otherwise be entitled against his fiduciary could be asserted in the face of confiscation orders obtained by the Crown Prosecution Service against the fiduciary under the Proceeds of Crime Act 2002. This article argues that the reasoning and outcome in this significant decision are unsatisfactory.

Children as Witness: A Symposium on Child Competence and the Accused’s Right to Confront Child Witnesses

We lack an entirely convincing account of the scope of Congress's power under the Constitution to create Article I and invest them with authority to adjudicate disputes that seemingly come within the scope of Article III. The literal terms of Article III have seemed to many to rule out reliance upon Article I altogether; the provision vests the judicial power of the United States in federal whose judges enjoy salary and tenure protections that were designed to ensure judicial independence in a scheme of separated powers. Judges of Article I - including territorial courts, courts-martial, and administrative agencies - often serve without such protections, and the transfer of work to them seems to threaten judicial independence. Yet the literal account does not well explain the proliferation of Article I tribunals, which have grown up and flourished throughout the nation's history. This institutional history of Article I adjudication explains the need for alternative accounts, but none of the competitors resolves the problem. The balancing test, which the Supreme Court now appears to prefer, acknowledges some role for Article I tribunals, but fails to provide clear guidelines as to when Congress may sidestep Article III. A more promising academic theory - the appellate review account - emphasizes the need for appellate review in constitutional as the key to Article I adjudication. While it offers greater coherence, it does not fit especially well with our institutional history, and it would seemingly authorize some arrangements that depart dramatically from current law. This Article develops a new tribunals account of the interplay between Article I and Article III. Building on the constitutional distinction between tribunals (in Article I) and courts (in Article III), the Article suggests a new textual foundation for Article I tribunals. In particular, the Article contends that Congress may constitute inferior to hear matters that it has structured to fall outside the judicial power of the United States under Article III. Such non-Article III matters have traditionally included a range of familiar proceedings: public-rights claims (where the lack of finality precluded judicial involvement); courts-martial proceedings (which were assigned to the military for handling outside Article III); and local matters before territorial (which were understood to differ importantly from the nationally uniform rules of law that Article III were expected to enforce). The Article further suggests that the constitutionality of Article I requires that the remain inferior to the judicial department of the United States. Based upon the text of Article I, the inferiority requirement draws its strength from an institutional history that features widespread judicial oversight of Article I adjudication. The judicial department has preserved the inferiority of Article I with a variety of tools - including habeas corpus, mandamus, and officer suit litigation. While the inferior account does not demand appellate review in every case, it does secure the Court's role as the final expositor of federal law.

Protection of historic properties is a public task which in Poland is performed by state bodies and local authorities. It consists in, inter alia, provision of legal, organisational and financial conditions which allow for long-term protection, restoration, utilisation and maintenance of heritage buildings. Provision of tax preferences towards historic properties is an important financial incentive for entities engaged in historic preservation and operating outside the public finance sector (in particular non-governmental organisations and natural persons). To determine the nature and scope of the tax preference, a systemic analysis of the Act on protection and maintenance of historical monuments and the Act on taxes and local fees is required. To ascertain the fundamentals and the scope of the regulatory law regarding heritage property tax exemption, as well as the way in which the legal regulations have developed, the tax legislation and judicial practice were analysed and the reference literature was reviewed with the application of the dogmatic-legal and empirical methods. The hypothesis on the conditional nature of the tax exemption was proven to be correct. Concurrently, it was shown that the fulfilment of statutory tax exemption conditions makes the taxpayer eligible for the tax incentive regardless of his/her legal status and involvement in other activities.

Never has what goes on behind the red velour curtain--the give-and-take between the Supreme Court Justices in an important case--been described in such detail. Swann v. Charlotte-Mecklenburg Board of Education was the first case to decree extensive busing as part of a school desegregation plan; it established the framework for all future busing decisions. This behind-the-scenes account traces the Swann case from its origins in Charlotte, North Carolina, to the decision announced by Chief Justice Warren Burger in a packed Supreme Court Chamber. Bernard Schwartz, a leading legal scholar, draws on confidential papers and extensive interviews with justices, law clerks and others involved in the case to provide the first detailed presentation of the decision process in the Court. When Chief Justice Burger undertook to write the Swann opinion himself, Schawrtz notes, he departed from more than a century of Court tradition, for he held the minority view, leaning toward overturning the district court's pro-busing position. The book reconstructs the secret conferences and discussions in which the majority of the Justices ultimately induced the Chief Justice to give way. Schwartz traces the revisions in the opinion through six drafts and redrafts and shows how even at the last minute a strong dissent from Justice Black almost frustrated the effort. A fascinating work of microhistory, the book will be of compelling interest not only to Court-watchers but also to anyone interested in the history of civil rights.

Pharmaceutical Patent AnalystVol. 5, No. 2 CommentaryPatenting drug delivery technology: tips for formulating practical and effective patent portfolioTakeshi S KomataniTakeshi S Komatani*Author for correspondence: E-mail Address: tskomatani@shupat.gr.jp SHUSAKU·YAMAMOTO, Osaka, JapanSearch for more papers by this authorPublished Online:18 Feb 2016https://doi.org/10.4155/ppa.15.42AboutSectionsView ArticleView Full TextPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack CitationsPermissionsReprints ShareShare onFacebookTwitterLinkedInRedditEmail View articleKeywords: active pharmaceutical ingredientdrug delivery systemintellectual propertypatentpatent term extensionportfoliosupplementary protection certificatePapers of special note have been highlighted as: •• of considerable interestReferences1 Coelho JF, Ferreira PC, Alves P et al. Drug delivery systems: advanced technologies potentially applicable in personalized treatments. EPMA J. 1(1), 164–209 (2010).Crossref, Medline, Google Scholar2 Mastrobattista E, Hennink WE, Schiffelers RM. Delivery of nucleic acids. Pharm. Res. 24(8), 1561–1563 (2007).Crossref, Medline, CAS, Google Scholar3 Xu L, Anchordoquy T. Drug delivery trends in clinical trials and translational medicine: challenges and opportunities in the delivery of nucleic acid-based therapeutics. J. Pharm. Sci. 100(1), 38–52 (2011).Crossref, Medline, CAS, Google Scholar4 US Code: Title 35 (35 USC) Sec. 101.Google Scholar5 Japanese Patent Act. Article 29(1), main paragraph.Google Scholar6 European Patent Convention Article 53(c).Google Scholar7 European Paten Office. www.epo.org/law-practice/case-law-appeals/recent/t080234eu1.html.Google Scholar8 The Commissioner of Japan Patent Office v. Takeda Pharmaceutical Inc. The Supreme Court of Japan, Heisei 21 (Gyo-Hi) no.324–326, 28 April 2012 (2012). ••These decisions, directed to the patent term extension based on a drug delivery system patent, set out the Japanese Supreme Court's position on what is necessary for obtaining patent term extensions, based on the premise that the drug delivery system patent is ‘valid’.Google Scholar9 Komatani TS. Patent term extension in Japan: challenges still lay ahead even after the 2011 revision. Pharma. Pat. Anal. 2(1), 63–76 (2012).Link, Google Scholar10 Japan Patent Attorneys Association. www.jpaa.or.jp/english/court_decisions/6-PacifCapsuleCase.pdf.Google Scholar11 Regulation (EC) no. 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products.Google Scholar12 Massachusetts Institute of Technology. Case C-431/04 (2006). http://curia.europa.eu/juris/showPdf.jsf?text=&docid=56613&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=642888.Google Scholar13 Neurim Pharmaceuticals Ltd. v. The Comptroller General of Patents. Court of Justice of the European Union, C-130/11; 19 July 2012 (2012).Google Scholar14 D'Oca G, Sklan A, Komatani TS. Cases update. Pharm. Pat. Anal. 1(4), 372–374 (2012).Google Scholar15 MPEP section 2750. www.uspto.gov/web/offices/pac/mpep/s2750.html.Google Scholar16 JRC Science & Policy Report, Farid, Reasonable & Non-Discriminatory (FRAND) Licensing Terms (2015). http://is.jrc.ec.europa.eu/pages/ISG/EURIPIDIS/documents/05.FRANDreport.pdf.Google Scholar17 The White House. www.whitehouse.gov/the-press-office/2015/01/20/remarks-president-barack-obama-prepared-delivery-state-union-address.Google ScholarFiguresReferencesRelatedDetails Vol. 5, No. 2 Follow us on social media for the latest updates Metrics Downloaded 64 times History Published online 18 February 2016 Published in print March 2016 Information© Future Science LtdKeywordsactive pharmaceutical ingredientdrug delivery systemintellectual propertypatentpatent term extensionportfoliosupplementary protection certificateDisclaimerThis commentary describes the opinions and observations of the author as a Japanese patent attorney and does not necessarily represent the viewpoints of the author's employers or author's firm. By its nature, the subject article provides the author's general opinion, and necessarily limited discussion of various topics; it does not purport to give specific legal advice or a substitute for legal counsel. As legal advice must be tailored to the specific circumstances of each case, nothing provided herein should be used as a substitute for advice of competent counsel. The author and the author's firm assume no liability for the use or interpretation of information contained herein. The author and the author's firm expressly disclaim all liability in respect of anything done or omitted to be done wholly or partly in reliance of this material.Financial & competing interests disclosureThe author has no relevant affiliations or financial involvement with any organization or entity with a financial interest in or financial conflict with the subject matter or materials discussed in the manuscript. This includes employment, consultancies, honoraria, stock ownership or options, expert testimony, grants or patents received or pending, or royalties.No writing assistance was utilized in the production of this manuscript.PDF download

Predatory Price Cutting and Standard Oil: A Re-examination of the Trial Record

Due to the tax exemption policy in China, the holding cost of real estate is low, which leads to the imbalance between housing supply and demand. Therefore the old tax system does not adapt to real estate development anymore. Combined with the soaring housing price, the tight local budget, and the large income gap in China, the reform pilots of property tax in Shanghai, Chongqing came into being in this situation. With summarizing the current research status of the domestic and foreign property tax, this paper does contrastive analysis on the effect of property tax implemented in Shanghai, Chongqing based on the basic theory of property tax, evaluates the obstacles to reform property tax system in China. Therefore when implementing property tax reform, we should balance the relationships of the related stockholders in real estate market well, establish a unified tax system, make appropriate and favorable policy and popularize the advantages of property tax. These tips proposed in the paper will also contribute to implementing property tax in other cities of China.