2022년 주요 상속세 및 증여세 판례회고

Roe v Wade, Dobbs, and the Future of Graduate Medical Education.

The Korean civil law contains a contradiction that it approves the liquidation of property formed during marriage as shared property while a separate property system is the legal property system. Additionally, the strict gift tax assessment on inter－spousal property transactions conflicts with the tax exemption for property division during divorce. According to current laws and precedents, a tax benefit for property division during marriage is granted only if the couple chooses the community property system. However, due to the incomplete legislation on community property, it is practically not being activated. Applying rigorous gift tax on financial transactions between spouses in a situation that the separate property system is inconsistent with the reality of marital property relations is not in line with the principles of substantive taxation. This study aims to point out the issues in the gift tax for financial transactions between spouses based on the judgment of the Korean Supreme Court(September 10, 2015, 2015Du41937) and propose improvements. Specifically, this study discusses the conflicts and inconsistencies between laws regulating financial transactions between spouses in connection with the separate property system, real －name financial transaction system, and property division claim system, and then proposes legislative improvements on the provisions regarding the gift estimation for borrowed－name deposits in the gift tax. Furthermore, this study proposes the fundamental improvements on the problems in the inheritance and gift tax system related to the free transfer of property between spouses from the perspective of setting the income tax assessment unit and the legitimacy of inheritance tax. For cash transactions between spouses, it is reasonable not to apply the legal principles of the gift estimation but to handle them according to the general burden of proof principle. In other words, the tax authority must prove the fact of tax requisition because the principle of experience that financial transactions between spouses can be considered as a gift is not recognized. The judgment of the Korean Supreme Court is significant in pointing out the gap between law and reality when applying the separate property system and gift estimation provisions strictly. Respecting the intention of the precedents, this study suggests excluding gift estimation for financial transactions between spouses through legislation. In the short term, there is a need to legislate amendments excluding gift estimation on borrowed－name deposits for financial transactions between spouses that do not aim to evade tax, compulsory execution and legal restriction. For this purpose, it is necessary to restrict the strict application of the separate property system to gift estimation taxation for financial transactions between spouses where there is a significant inconsistency with reality. In the long term, a revision of the income aggregation taxation and the overhaul of the inheritance and gift tax system between spouses are required to align with the reality of marital relations and achieve fair taxation.

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.

Clinical Practice Guidelines and Recommendations: Room for Dissent?

This study aims to propose comprehensive improvements to tax policy in response to the significant social changes brought on by serious demographic shifts resulting from low birth rates and an aging population. Population structure changes can trigger economic downturns, erode national competitiveness, and even pose existential risks to the nation, making it imperative for the government to implement proactive strategies. A key tool in these national response measures is tax policy. Specifically, this study seeks to offer integrated solutions for six major tax categories－corporate tax, income tax, value－added tax (VAT), property tax, local taxes, inheritance tax, and gift tax－to address demographic changes effectively. To date, South Korea has employed various piecemeal tax measures to counter low birth rates and aging trends, but the effectiveness of these approaches has been limited. This research underscores the insufficiency of minor tax credits and emphasizes the necessity of a long－term, comprehensive tax strategy to effectively address demographic transitions. The findings of this study are as follows. First, corporate tax should be restructured to enhance competitiveness, with a focus on simplifying tax brackets and tax bases, implementing a reasonable tax rate, and aligning tax structures with new industrial transformations. Second, income tax reforms should include adjustments to tax systems and bases, a shift to a household－based tax unit, and the introduction of inflation－indexed tax schemes. Third, VAT reform requires a tax rate increase, improvements in exemption rules, and revisions to the simplified tax scheme. Fourth, property tax should be adjusted by switching to a household－based tax unit and introducing measures to reduce the tax burden on elderly taxpayers. Fifth, local tax policy should be refined to promote competitiveness through the integration of local governments into larger administrative units. Sixth, inheritance and gift taxes should be restructured to promote economic circulation, with a focus on abolishing taxes on spousal inheritance and gifts and indexing deductions to inflation. Lastly, to avoid distortions in elderly taxpayers’ economic and fiscal decision－making, tax policies must be carefully adjusted. This study recommends establishing a “Committee on Population Structural Change”, involving tax experts to devise and coordinate tax policies that directly support 1) economic growth and positive economic cycles, 2) policies to support higher birth rates, 3) support measures for the elderly, and 4) policies that encourage broader workforce participation, including that of women and foreign workers.

Issuance of a State Administrative Decree by the Regional Secretariat of Central Java Province to people with disabilities on behalf of M. Baihaqi who was considered discriminatory during the 2019 Central Java National Civil Service Candidate selection who was declared not to have passed due to the requirements for the type of disability and educational qualifications being inappropriate. Administrative efforts have been taken to regain his rights but have been unsuccessful. Until finally resorting to litigation by filing a lawsuit with PTUN Semarang and an appeal to PT TUN Surabaya but it was declared not accepted. Then in the cassation the Supreme Court granted all the claims and asked the defendant to revoke the issued State Administrative Decree and process M. Baihaqi's in the Central Java National Civil Service Candidate selection 2019. The research method used is normative juridical with statutory, conceptual and case approaches. The research results show that the fulfillment of the constitutional rights of persons with disabilities in the 2019 Central Java Civil Servant Candidate Selection is considered not optimal because the solution provided by the defendant as an implementation of the Supreme Court's decision is not in accordance with the Supreme Court's decision.

This paper was originally delivered in July of 1975, within a few weeks of the Supreme Court's decision in the case of Albemarle Paper Company v. Moody. The law, of course, does not stand still. Less than a year after the Albemarle decision, the Supreme Court's decision in Washington v. Davis appeared to turn sharply away from the proposition that the EEOC guidelines are to be applied mechanically as the only legal touchstone of the job relatedness of a test. The Washington decision contains many obscurities and ambiguities, and at the time of writing (October 1976) it appears that at least one more Supreme Court case will be necessary in order to clarify this question. Though the present paper is outdated in some respects because of the Washington decision, it is hoped that it will continue to be of interest for the light it may shed on the interrelationship between the practice of industrial psychology and the judicial process in operation.

The California Recall Punch Card Litigation: Why Bush v. Gore Does Not Suck

Do Supreme Court decisions matter? In 1896 the United States Supreme Court ruled in Plessy v. Ferguson that railroad segregation laws were permissible under the Fourteenth Amendment. In 1954 the Court's decision in Brown v. the Board of Education held that the same constitutional provision invalidated statutes segregating public schools How great an impact did judicial rulings such as Plessy and Brown have? How much did such Court decisions influence the larger world of race relations? In From Jim Crow to Civil Rights, Michael J. Klarman examines the social and political impact of the Supreme Court's decisions involving race relations from Plessy, the Progressive Era, and the Interwar Period to World Wars I and II, Brown and the Civil Rights Movement. He explores the wide variety of consequences that Brown may have had--raising the salience of race issues, educating opinion, mobilizing supporters, energizing opponents of racial change. He concludes that Brown was ultimately more important for mobilizing southern white opposition to racial change than for encouraging direct-action protest. The decision created concrete occasions for violent confrontation--court ordered school desegregation and radicalized southern politics, leading to the election of politicians who calculated that violent suppression of civil rights demonstrations would win votes. It was such violence--vividly captured on television--that ultimately transformed northern opinion on race, leading to the enactment of landmark civil rights legislation in the mid 1960s. A fascinating investigation of the Supreme Court's rulings on race, From Jim Crow to Civil Rights, spells out in exhaustive detail the political and social context against which the Supreme Court Justices operate and the consequences of those decisions on the civil rights movement and beyond.

For the first time, in two recent decisions, the Italian Supreme Court has provided its view on the inheritance and gift tax regime applicable to trusts. The interpretation provided is in line with the previous guidance released by the Italian tax authorities as from 2007, but conflicts with previous lower court case law: according to the Supreme Court, any deeds through which assets are contributed to a trust are subject to gift tax upon such transfer rather than at a later stage, when the trust assets are distributed to the beneficiaries of the trust.

Background. In accordance with the norms of national legislation, the conclusions of the Supreme Court regarding the application of certain norms of law must be taken into account by courts of general jurisdiction when applying such norms of law. Thus, the article addresses the theoretical and legal analysis of the institution of legal opinion of the Supreme Court as a unique act of law enforcement in the national judicial system. Methods. The empirical scientific method (observation) was used in the part of the study of the practice of taking into account conclusions from the Supreme Court decisions by the courts; theoretical and scientific methods (proposing hypotheses and theories, analysis, synthesis, abstraction) in the part of identifying categories of improper (defective) consideration of conclusions from the Supreme Court decisions. The method of scientific modeling is used in the part of determining ways to solve the problematic issues raised in the article. Results. Emphasis is placed on the problem of the insufficiency of the definitions in relation to legal regulation of the legal opinion of the Supreme Court. The article highlights problematic issues related to taking into account the conclusions from the decisions of the Supreme Court: 1) the problem of dividing such conclusions into those that directly affect the outcome of the proceedings, and those that do not have such an impact on the outcome; 2) the problem of taking into account the conclusions expressed without due consideration of the actual circumstances and/or legislation; 3) the problem of the defectiveness of conclusions relating to legal prescriptions that have lost their validity or have been changed, and conclusions from which the Supreme Court deviated; 4) the problem of taking into account conclusions from Supreme Court decisions retrospectively (backward in time). The analysis of the indicated problems was carried out on the basis of theoretical provisions, court practice and partially foreign experience of law enforcement. Conclusions. Based on the practice of courts of general jurisdiction, the practice of the Supreme Court on the above-mentioned problems, attention is focused on cases of formal consideration of conclusions from Supreme Court decisions, own conclusions are put forward and models for solving problematic issues are proposed.

The Indonesian Supreme Court rejected the cassation and imposed a fine of IDR 199 billion on PT. Rambang Agro Jaya (RAJ), a subsidiary of Malaysia’s Kulim Berhad, for a 500-hectare forest and land fire case in Ogan Komering Ilir Regency, South Sumatra. This study aims to conduct a normative juridical analysis of the courts’ decision, holding PT. Rambang Agro Jaya was strictly liable for the environmental damage caused by the fire. The research reveals: (1) Central Jakarta District Court Decision No. 445/Pdt.G/2019/PN Jkt.Pst establishes strict liability and orders the Defendant to pay material losses totaling IDR 137.57 billion. (2) Jakarta High Court Decision No. 398/PDT/2021/PT DKI upholds the Central Jakarta District Court’s decision, reinforcing strict liability and increasing the total compensation to IDR 199.57 billion. (3) Supreme Court Decision No. 2196 K/PDT/2022 rejects PT. Rambang Agro Jaya’s cassation confirmed the Defendant’s unlawful actions and strict liability and imposed a material loss compensation of IDR 199.57 billion. The rulings signify a progressive step in enforcing environmental responsibility, with the substantial fine signaling a strict stance against ecological violations. The Supreme Court’s consistent rejection of cassation strengthens legal certainty and establishes a robust legal precedent for similar future cases, and underscores the significance of corporate accountability in promoting environmental sustainability.

Long-Term Care Reforms Live On With Court Ruling

INTRODUCTION In November 2015, the Supreme Court granted certiorari to Whole Woman 's Health v. Cole (1) the first reproductive rights case to reach the court since Gonzales v. Carhart (2) eight years before. In the intervening time, states have passed an astonishing number of laws and regulations that encroach on women's access to abortion. Many such laws ostensibly aim to protect the woman and her fetus. Yet these same laws do so by imposing medically unnecessary and onerous procedural requirements on women, (3) which can erect massive barriers to abortion access for individuals. Other state laws aim to regulate not the activities of women, but those of abortion providers, who are not a protected class. The reproductive rights movement terms these laws Targeted Regulations of Abortion Providers, or TRAP laws. (4) State legislatures' passage of TRAP laws accelerated after the Supreme Court's decision in Carhart, which was taken to signal judicial willingness to uphold state laws that aim to protect an unborn fetus at the expense of reducing a woman's ability to choose. (5) This Note focuses on admitting-privileges laws, a type of TRAP law that requires physicians who provide abortions to obtain staff privileges at a hospital within a certain distance from their clinics. Without these required privileges, physicians performing abortions risk civil and criminal penalties. These laws are especially concerning because they give area hospitals an effective veto over a clinic's operations, effectively outsourcing the power to deny licenses to private entities. Admitting-privileges decisions are often discretionary for hospital administrators; a hospital's denial of admitting privileges also lacks state oversight or external appeals. Admitting-privileges laws are being ratified throughout many states, but have proven resistant to traditional substantive due process challenges. In addition to traditional undue burden analysis, a multipronged approach to reproductive rights litigation and advocacy is necessary. Part I of this Note sets forth a brief history of the right to choose an abortion and the current federal legal framework. Then, it details recent state legislative and ballot initiatives aimed at regulating abortion providers. Part II explains the complications of using the undue burden doctrine in constitutional challenges to state action, as illuminated by recent cases litigating admitting-privileges laws. It further introduces private-delegation challenges as an alternative method to examine the constitutionality of these laws. Part III looks at the history of private-delegation challenges with respect to admitting- privileges laws and touches on other possible avenues to challenge admitting-privileges regulations. I. Abortion in the Post-Roe Era In 1973, the Supreme Court decided Roe v. Wade, which recognized that the Due Process Clause of the Fourteenth Amendment protects a right to privacy that extends to a woman's decision to have an abortion. (6) Roe's effect was remarkable. Before Roe, each individual state regulated abortions and the accessibility thereof with their traditional police powers. At the time of the decision, four states had repealed anti-abortion laws, while thirteen had begun reforms of their abortion laws. (7) Almost all the rest banned abortion in most cases. (8) After the Supreme Court identified a right to choose an abortion grounded in the federal Constitution, the annual number of legal abortions rose through the 1970s, leveling off in the 1980s. (9) After Roe, the Supreme Court also decided Doe v. Bolton, (10) which assessed the elaborate procedural barriers to abortion erected by the state of Georgia and invalidated some of them for being not reasonably related to the state interest (11) or redundant. (12) Doe has been interpreted to signal that just as states may not prevent abortion by making the performance a crime, states may not make abortions unreasonably difficult to obtain by prescribing elaborate procedural barriers. …

There are over 570 federally-recognized Tribal Nations in the United States and more than 330 tribal courts serving as the judicial branch of those nations. Yet, there is little mention of the existence of tribal courts in most mainstream civil procedure courses taught in the over 200 law schools in the United States. To gain any knowledge as to the existence of these courts, law students must take a course on federal Indian law, which is not available in the majority of law schools. In fact, less than twenty law schools offer a series of courses forming an Indian law program. Thus, the invisibility of tribal courts is perpetuated through curriculum omission in mainstream civil procedure courses and rarely remedied through offering a stand-alone course on federal Indian law. Tribal Nations have existed from time immemorial with their own laws, dispute resolution systems, and governing structures. This lack of attention and suppression of information serves only to reinforce colonizing ideas of subsuming tribal governance into the forums set up by the United States. This article will discuss the history of formal tribal courts as first established to control American Indian populations in the late 1800s. As tools of oppression, the first judicial forums established on American Indian reservations were the Code of Indian Offenses Courts, also known as the C.F.R. Courts (Code of Federal Regulations Courts). The Indian Reorganization Act of 1934 signaled a shift in policy which provided for the adoption of tribal constitutions. Under the Department of Interior, the Bureau of Indian Affairs personnel developed boilerplate constitutions for adoption by Tribal Nations. These constitutions often included provisions for the establishment of tribal courts. Through U.S. Supreme Court decisions and federal laws, the criminal and civil jurisdiction of tribal courts has been limited. The U.S. Supreme Court has also opined that the U.S. Congress holds plenary authority over American Indian Tribes. Utilizing this authority, the U.S. Congress has legislated federal criminal jurisdiction as concurrent on all tribal lands with tribal court jurisdiction and has provided a mechanism to delegate federal criminal jurisdiction to state legal systems. In the civil jurisdiction sphere, the U.S. Supreme Court has established processes for federal courts to review tribal civil jurisdiction determinations and for the refiling of cases from tribal courts to federal courts based on the status of civil defendants as non-Indians or non-members. Following a discussion on the history and function of tribal courts, this article will examine the limitations on tribal court civil jurisdiction set forth in U.S. Supreme Court decisions. Through a critical examination of the U.S. authority and legal basis for review of tribal court determinations or decisions, this article will provide commentary on the ungrounded nature of the assertion of U.S. federal court review over tribal court decision-making. Finally, the article will recommend a government-to-government treaty agreement to set the framework for civil jurisdictional issues arising between Tribal Nations and the United States.