@quercetumToday 10:42 pm JST
Executing a judicial order and carrying it out does not mean the decision can be moderated or amended. If the executive branch did that it would be acting on behalf of the judicial branch.
If you say the executive can "moderate" or "amend" a judicial decision, in principle the moderation can be 100% (null). Perhaps a different tactic would work better.
@SJToday 07:27 pm JST
Given that you don't really understand law (I remember you claiming you don't, so you don't want to discuss your articles on the merits), you don't have much clue as to whether the sources you are using really back you up, right? Perhaps we can help...
Since I did SKR previously, I'll do Nippon.com by Kokubun Noriko.
I will point out that unlike SKR, who are clearly "pushing" the South Korean judgment (at about the competence I would expect from a housewife), Kokubun is more descriptive - she is describing the South Korean play without making too much of a positive or negative appraisal. In fact, if you read b/w the lines, you might even infer she's saying the judgment is flawed, such as:
*Under Article 217 of South Korea’s Civil Procedure Act, the final rulings of other countries’ courts are considered valid subject to certain conditions.*
In other words, while there are escape routes, in principle South Korea is supposed to accept the final rulings by its own law. This was not done.
*But the Supreme Court, *declaring
"Declaring" does not sound good. A good court judgment is reasoned, so it should have been "The Supreme Court, reasoning...". Declare implies the court made an arbitrary ruling without completing the legal reasoning processes to narrow the discretion they have as much as possible to a singularity.
This impliance seems consistent with the displayed facts, since the Japanese court's rationale does not even really depend on the legality of the 1965 Treaty (based on Statute of Limitations), yet the Korean Supreme Court just declared it has to do with it. It is not clear how a ruling dependent on the statute of limitations can be so clearly against the constitution it qualifies for those exceptions.
*The court also declared that the state cannot liquidate an individual’s claim rights without the individual’s consent; it can only abandon diplomatic protection rights.*
Again with that "declare". Kokubun states facts when she says this formulation is similar to what the Supreme Court of Japan went for. However, it doesn't really cover the small problem of how to square it with the clear meaning of the text.
The Supreme Court also noted these four points: (1) The view that the rights of individuals to make claims had been settled by the 1965 claims agreement had been prevalent within South Korea.
In other words, it admits it is going against its own system's traditionally held theories. Encouraging.
*in its view** that the defendant’s allegation that the statute of limitations had expired was contradictory to the principle of good faith and an abuse of rights.*
In other words, it used discretion again - rather than reasoning it out properly. Sure, sometimes you need to use discretion to fill gaps where there is no case law / jurisprudence so you can't bring things down to a dot, but it is a weak basis to make karate kicks into internationally agreed text.
*The Supreme Court took a lenient view of the causes for delay in application of the statute of limitations and made bold use of the legal principles of violation of good faith and abuse of rights*
In other words, the Supreme Court deliberately expanded the targeting circles of these to put MHI into its crosshairs where a less biased view might well have put them outside it. "Bold" means "Forced", OK?
2 ( +3 / -1 )
OK, SJ, I see I will be typing for a long time today:
@SJ Today 08:02 pm JST
The scanned document was translated in 1965 by Library of Congress of the U.S., and published in January 1966, predating by 1 year the UN document registered by Japan.
According to your statement, it was translated by a third-party to the negotiations? That may be good for fairness, but not necessarily so good for detailed understanding.
The second problem is the credibility of where you sourced your quotation. Cambridge is good, but on treaty texts it can't beat something filed with the UN on authenticity. And if Cambridge isn't good enough, why do you think Wikisource, which I can edit by clicking on it, will be (not saying you can't use it to start, but if someone pulls something from the UN, you lose).
But never mind, I can work with your Wikisource Japanese sample. The main difference I can see between the two English versions is that the Wikisource/Cambridge version uses "free of charge" and places it ahead of the amounts. The UN version uses "grants" and places it after the amount.
The Japanese version has the key word after the amount. Further, on the merits free of charge is just "無償" - three glyphs are not represented. If you want a word covering all 5 glyphs, "grant" is correct. Maybe the final decision for the "Library of Congress" version is made with a nod to the Korean version (which I can't read), but as far as matching up to the Japanese is concerned the UN version seems better on this point, both in completeness (translating 5 glyphs 2 glyphs) and positioning (if possible, try to array the concepts in the same order as the original).
And you have completely missed the most important part of the argument, which is that the nitpick between "free of charge" and "grant" isn't even the main point. The main point is Article II(1), where they agreed everything is settled. It could all be nothing but loans, which would be even further from compensation, and the point still stands as long as the Koreans are willing to sign up for Article II(1).
@SJ Today 10:29 pm JST
There is no contradiction. You just lack legal knowledge to understand what was being said.
First, the Press Statement reasserts a basic point, which I doubt even you would challenge. There is a discrepancy between what Korea is doing and the demands of the text. When interpreting law, you don't start with legal theory. You start by reading the legal instrument.
Second, the individual right to claim is not extinguished. He can actually say that without saying anybody can actually claim it. It is entirely possible for someone to have the right to claim and to be legally unable to claim it to exist at the same time. A simple example might be I owe you money. You certainly have a right to claim there. However, suppose the only way to get that money is to kill me. Then you can't legally get your money back even counting only substantive law, because the value of Life is greater than Property. Maybe one day, my life won't depend on that money, so your right to claim isn't extinguished - but you can't get that money until the blockage disappears (if it disappears).
There are a number of other reasons, but the point is that such a state is possible.
Third, regardless of the validity in domestic law, international law does not care. It cares as to whether your final action, as a State, fulfills the textual requirements of the legal instrument. So you can use any reasoning you want, or even just deliberate non-execution of a domestically-valid court judgment, internally. Just do what the treaty text says.
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@SJ Today 05:12 pm JST
That is a scanned copy of something for a journal article printed by Cambridge University Press. I don't know why that formulation is so common but prima facie it cannot beat the credibility of a version stored at the UN, complete with both Japanese and Korean texts.
Having said that, I don't think "free of charge" is that substantively different from "grant" since you can play the same crappy little games. The main thing is that the South Koreans accepted this formulation and agreed that everything was settled. Article II(1) has pretty similar versions everywhere I know. The Supreme Court of South Korea, or any body in South Korea, does not have unilateral authority to reverse or minimize this determination.
If this is a civil law case, this is in essence what happened. South Korea and Japan are legal entities. They entered into a kind of no-fault settlement where money was handed over. Then Korea unilaterally grabbed more money coercively based on its own determination of the case. Most people will understand what happened as Robbery.
2 ( +4 / -2 )
Tokyo lodged a protest against Seoul, saying it had broken an agreement on what the two sides would disclose from the Friday discussions on Japan's curbs of exports to Korea of some materials used to make high-tech equipment, said Japanese trade ministry official Jun Iwamatsu.
I'll buy this as a Probable, given Seoul's reputation for agreements. Further, leaking information for advantage is not only a common ploy, but has been done by Korea's brothers, the Chinese, since the "Twenty-One Demands".
Japan's Ministry of Economy, Trade and Industry (METI) also disputed a Korean official's statement that Seoul had asked Japan on Friday to withdraw the restrictions.
But I don't see much value in disputing this. It is well known this is what they want. It is possible, of course, this is just a matter of fact though.
@HiroToday 07:21 am JST
I agree with your comments.
5 ( +8 / -3 )
HeckleberryToday 06:52 pm JST
For the 3rd and final time, let me explain to you that in SK the court's decision is independent of the government.
Well, then the government can just not execute the Court's order. Ultimately, if the Executive doesn't play ball, the Judiciary is powerless. For a purely domestic matter I likely won't recommend this, but it is justifiable when international agreements are involved.
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The world lets them. Knowing what the world will let you get away with and what arguments (even unfairly) get an undue amount of weigh is sadly the mark of a grown-up. In this, South Korea is more mature than Japan, who often misreads or refuses to read the winds of the world.
(That's not to say Japan is wrong, more a criticism of the world and its unobjectivity).
-13 ( +5 / -18 )
The Nationalists weren't exactly all that democratic either, but I agree with the basic idea that Western indulgence has much to blame for China. They should have kept up a strict regime of limited sovereignty and insist on complete and unconditional compliance with signed treaties, but instead they induged China, until we have today.
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@IloveCoffeeJuly 9 07:36 pm JST
What exactly do they want the Korean government to do?
This question presupposes that the decision is bad from an international law perspective, otherwise we should be discussing something else. In this case, the Executive can't tell the Judiciary to reverse - that's true even in Japan; there may or may not be behind the scenes stuff but once the ruling is on paper, it is done. However, it can openly refuse to execute the judgment. The court can slap on verdicts of illegality, but ultimately the Executive holds the personnel and equipment and if it doesn't bulge, the Judiciary is powerless.
Next they can use every political card in their hand to insert new legislation. That "resets" the legal deck and justifies a new decision.
0 ( +0 / -0 )
Oh, I meant this link:
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@SJ Today 05:54 pm JST
Here's the difference. The worst the Japanese do is dispute the facts. The law stays within common sense.
An example of a fact dispute is "Nanking didn't happen." You may not like it, but the law isn't being challenged here. In fact, some argue the Japanese "lie" (the idea they might sincerely believe this is beyond many Westerners, to say nothing of Chinese and Koreans) because they are ashamed. If that is true, that's actually still kind of good, because that means they agree on the law.
An example of a law dispute is "I don't have to respect this treaty, which a bunch of my ministers signed just because it lacks the king's signature." That's dangerous because it breaks the value of signed commitments. Commitments are worth nothing if you can revoke them as soon as things turn bad - we wouldn't need commitments in such a case. But why care about consistency?
You might recognize two Sinocentric countries as the prime executors of the latter.
I might also note that this:
actually shows a large pluralism of takes. Some schools don't teach it much. Some teach American leaning stories. Others are less leaning. This is actually not bad from a human education perspective. It means as a society, no position is likely to generate a lot of hate (OK, there are exceptions, but generally) because people are aware that all positions have a following.
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@girl_in_tokyoToday 06:34 pm JST
What you wrote was proof that rape is damaging, not necessarily that it was violent. Further, your formulation makes consent part of the criteria for violence, when most would probably weigh things like the degree and speed of the applied forces to be more critical criteria.
This is guy states that he can’t tell the difference between a woman screaming for pleasure and screaming because she’s being raped.
I think what is really needed here is a bit more assumption of good faith. Can you write your reply assuming this is an honest, good-faith view? I mean, it is not very glorious to admit one's lack of discriminative ability.
A criminal law legislator must, despite his personal experiences (if any), give at least as great weight on testimonies like Norman's as testimonies that claim discrimination is possible. If anything, he must give greater testimony, because he must side on avoiding false positives leading to false convictions.
-7 ( +1 / -8 )
"Japan is making a 100 percent legal argument but they didn't show any sincerity over the past 708 months," said one person familiar with the government's thinking, referring to the years of disagreement over the dispute.
Maybe half the point to solving this dispute is ramming the front part of this down the South Korean's throats. A realization that legally they are on weak ground might be just the thing to get a bit of progress on this.
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@MariaToday 02:52 pm JST
You support the PM using his vast influence to interfere with legal proceedings because the man accused is his buddy? Yeah, that sounds legal.
In reality, people rarely exert themselves unless they at least know the guy. So the fact he knew the guy cannot, by itself, neutralize the possibility the move is meritorious.
If it is a weak case or a strong case is not for him to decide. The way you have described it above is despicable, and if that is how justice is served in Japan, then Japan is clearly a deeply corrupt society.
All right then. Suppose you are in a position of power. You know someone who is being prosecuted. Maybe he is your friend or maybe he isn't, but he caught your eye. You quietly enquire as to the specifics of the case. You sincerely believe even taken as per the casefile it is bullcrap and the only reason it hasn't been terminated already is due to politics. You also know that if you don't terminate it, regardless of the outcome of the case the defendant would never recover.
Please justify your decision to "let justice run its course" despite serious consequences regardless of his actual guilt.
-10 ( +0 / -10 )
Oh yeah, you are answering me, OK.
I'll criticize the WHO's definition with two examples that occur during "normal" sex:
1) Consensual Sex of the Virgin: Physical Force (yes), intentional (yes), Actual (yes), results in injury (yes, the hymen's penetrated).
2) Consensual Sex of the Non-virgin, which nevertheless caused "psychological harm". In other words, whether you committed violence has nothing to do with your actions, but solely on the consequences on your partner. This is objective imputation and should be avoided.
We need to rethink this one, methinks.
MariaToday 01:14 pm JST
He has the prime minister preventing progress of the case, denying Ms Ito her rights to a fair investigation.
In all fairness, this is alleged and not proven. And even if it was, whether it is the wrong call to make will depend on the facts of the case, and the facts already in the case file.
The pressure is on to prosecute allegations of rape, whether the facts or law really support the case. It could be that all the PM said was "Look, you know this is a weak case that won't get a conviction in court anyway. All you are doing is harassing my buddy to please the feminist media and killing him societally before the case is settled. Maybe this time we can not do that."
-12 ( +0 / -12 )
@girl_in_tokyo Today 08:38 am JST
Rape is always violent.
For that to happen, you will have to expand the definition of violent beyond its usual meaning. This is not only a cheap tactic to "borrow" the power of a more damning word, it actually weakens that word by diluting its meaning.
Can you even imagine waking up and finding a man on top of you, holding you down so that you cannot move, raping you? I don't guess you can, if you can describe this as not being violent.
I say it is consensual. Prove it isn't, with objective evidence, even though there is not a single injury on you, no detectable drugs in your body ... etc.
I'm terrified that there men out there in this world who say things like, "consent is difficult to ascertain moment to moment even between the people having sex".
He didn't say (yet) that Consent is difficult to ascertain between the people having sex. He said it is difficult for third parties, like courts to determine with any objectivity. I will defer to others on comment as to how hard it is for the players actually involved to ascertain consent, since I have exactly zero real sex experience.
@girl_in_tokyo Today 10:27 am JST
Think about it for just one second - when Ms. Ito came forward, what happened?
Well, sure, but you have to consider. Rape is one of the most defamatory accusations you can make against another person. To someone of Yamaguchi's stature, it can be career ending with associated economic effect. In effect, before we are even sure Yamaguchi deserves any damage, he is already tangibly damaged.
Further, she is invoking the power of the State to imprison him for a number of years. When you are demanding this much, you better be ready to back it up and take some flak.
-10 ( +0 / -10 )
@Osaka_DougToday 08:18 pm JST
Call me a traditionalist, Osaka, but I like definitions that actually involve violence, coercion, or exploiting a provable helpless state (such as being drugged).
I know women claim they can be raped without violence, coercion or provable helpless states; but for criminal law to work in a respectable fashion, it needs to work with offences whose elements can be objectively proven.
Further, even from a theoretical, idealist perspective, pushing the requirements so low means you are not so much criminalizing rape (even in the ever loosening definitions that seem all the rage today), but de facto criminalizing sex. Consent structurally becomes a justification (as in justifiable homicide). So we have to think, whether we want to criminalize sex.
Finally, what seems to be controversial here is not the definition of rape. The police and prosecutors were willing to go after the guy right up until what looks suspiciously like top level intervention happened, but no one could prove (or disprove) foul play because of the complete prosecutorial discretion given to the Japanese procuracy. Maybe what is needed are not changes to the Criminal Law, but the Criminal Procedure Law, to rigidly limit the discretion to not prosecute. If they must at least process the investigation and trial to the last, at least it may make the victims a bit more content.
-6 ( +2 / -8 )
@Osaka_DougToday 06:05 pm JST
I suppose such ideas were put in at the behest of feminists and victim rights groups. Consider how hard it'll be to really objectively prove such factors. You will be left with He-said, She-said. So either you do Benefit of the Doubt like you are supposed to and we are back where we started, or we de facto give a heavy presumption towards just taking the victim's testimony at face value, thus violating equality of arms.
I think I value our protections more than this.
-8 ( +4 / -12 )
The difference is that Americans tend to fudge the law (atom bombs are good) rather than dispute the facts. The Chinese and Koreans play a similar game. History has spoken that the former is more dangerous.
-3 ( +3 / -6 )
OssanAmericaJuly 7 08:00 am JST
One can only say that the proposed interpretation fails in its incompatibility with the literal and structural interpretation of the text proper.
It doesn't take a genius to see that "Kuril Islands" is without any qualifiers. Further, it is placed in a separate paragraph from "The former rights of Russia violated by the treacherous attack of Japan in 1904 shall be restored, viz..." Thus, Stalin's interpretation is clearly closer to the text as finally written. Trying to reverse by claiming possible thoughts is despicable and cannot be accepted on the merits.
Cairo is a Declaration, not a legally binding treaty or agreement, especially since as you say 2 years have passed, which leaves a lot of room for "things to happen in between".
Further, the greed smokeshield aside (what territorial expansion can be completely free of greed), in substance territorial changes are sought for and effected, correct? Including territorial changes on territories whose prior move were approved by these same nations (US and UK).
0 ( +0 / -0 )
Definitely. Once the act meets the criteria of any article within the Criminal Law, they should not treat it as a school internal affair under "Partial Society Theory" but make him criminally liable.
BTW, for such cases, criminal liability should be considered at Primary One, not 14, let alone 20.
3 ( +3 / -0 )
LudditeToday 10:51 am JST
Abslutely disgusting. No sexual offence should be given a suspended sentence.
Question. Why put Sexual Offences on a pedestal?
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Before anything, I really like how the body says "blister" and "sternulatory" agents, and yet the battalion is described as a "nerve gas" battalion and the agents are equated to "nerve agents" (which provokes images of VX) in the title.
Besides, given the reputation of some left-wing Japanese historians, I'll wait to see the actual pages and counteranalysis before writing out a decision.
-7 ( +2 / -9 )
Criminal liability for this one, please.
-5 ( +1 / -6 )
Police said they have learned that the three juveniles became enraged after the man wrote some negative comments about their friend online. They followed him to the karaoke parlor where they carried out the assault.
Hmm, injury with hooliganistic motivations. No suspended sentences, please.
-1 ( +1 / -2 )
arrestpaulToday 11:21 am JST
1) The court does not have to be right on the merits.
2) Unless you seriously think such a question will not place a burden on certain demographics, purposively putting in such a question will degrade the accuracy of a survey meant to count "all the people".
3) The court did not even really say such a rationale exists. All it did was refrain from saying that no rationale will possibly be accepted. It may turn out that Trump (or anyone) will never be able to come up with a satisfying rationale. This is consistent with the principle of ruling as little as possible.
1 ( +2 / -1 )
OssanAmericaToday 02:29 am JST
Wrong, The United States. United Kingdom and European Parliamemt consider these 4 islands of the "Southern Kuriles" to be Japanese territory under Russian administration (occupation).
While that is true, have you ever heard of any real reasoning to support that position? I hadn't. It is a pure populist position, without legal standing.
The Americans and the British, in particular, as signatories of the Yalta Agreement are in a particularly poor position to object, having received the benefits of their offer regardless of its legality.
0 ( +1 / -1 )
Besides a loss of pride, what is the worst that can happen if Japan apologizes (again)? I never seem to read a news story which covers this topic.
In the real world, apologies = liability. Apologies that are not very carefully planned and coordinated (quietly, of course) are outright dangerous to countries, and a national leader who makes one without the most careful consideration of national interests (such as from the "goodness" of his heart) is little more than a traitor.
1 ( +5 / -4 )
Both sides are doing what has to be done considering their respective positions.
For what its worth, my position on this issue is unchanged. Japan gave up those islands in 1952, so whoever's they were, they aren't Japanese. And no the dodge of saying 南千島 is not part of 千島 does not impress me. Only a terminal case of Russophobia in many nations have allowed this claim to be sustained by so many Western countries (it is one of those times that reminds me of the limitations of the West when it comes to Rule of Law).
But I've said this before too, also. Not very newsworthy, this one.
-2 ( +1 / -3 )
In other words, no one was actually harmed.
This is one of those cases where I'll come down on shielding minors from criminal liability. They do have increased vulnerability to strong passions and liking to push the limits is not necessarily a bad trait. Further, long term consequences tend to fade in the youngster's mind.
This is mere administrative-criminal liability for something that ended without actual consequences. Minors should not be subject to such things.
0 ( +2 / -2 )
Norman got way too many downvotes. He made a good point. Kissing is not necessarily sexual. Neither is hugging. Nor is pushing people to the floor or straddling them. I don't think many would contend this point. So why is it that when they are done in a sequence, it automatically becomes sexual?
No one is saying it can't be sexual, just that it should be decided on further facts that are not apparent in the article, not an automatic presumption based on the few available points.
If we want to say it is an aggravated offense to for an adult to assault or confine a minor, so be it. No need to always bring the sex into it.
-1 ( +1 / -2 )
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