scholarly journals The Problem of Over-Inclusive Offenses: A Closer Look at Duff on Legal Moralism and Mala Prohibita

2020 ◽  
Vol 14 (3) ◽  
pp. 395-416
Author(s):  
Stephen Bero ◽  
Alex Sarch
Keyword(s):  
Criminal Law ◽  
Legal Moralism ◽  
Criminal Offense ◽  
The Law ◽  
Antony Duff

Abstract There are sometimes good reasons to define a criminal offense in a way that is over-inclusive, in the sense that the definition will encompass conduct that is not otherwise wrongful. But are these reasons ever sufficient? When, if ever, can such laws justifiably be made and enforced? When, if ever, can they permissibly be violated? In The Realm of Criminal Law, Antony Duff tackles this challenge head on. We find Duff’s strategy promising in many ways as an effort to reconcile over-inclusive offenses with the wrongness constraint on criminalization. Nonetheless, we aim to move the discussion forward by raising questions about Duff’s solution and highlighting some limitations and costs. We begin in Part 2 by sketching the contours of Duff’s position; then in Part 3 we propose one refinement and offer two practical observations; and finally, in Part 4 we raise broader concerns. In particular, we question whether the problem of over-inclusive offenses is one that can or ought to be solved, or whether it is better conceived as a difficulty to be managed and mitigated. Of course, we should avoid undue harshness in the law where we can, and Duff’s approach is guided by this worthy ambition. But there may also be a limit to this. To the extent that the harshness cannot be avoided, perhaps this should be acknowledged and faced up to, rather than obscured or finessed.

scholarly journals Legality Letter of Statement of Khilaf in Indonesia Criminal Justice System

FIAT JUSTISIA ◽  
2018 ◽  
Vol 12 (2) ◽  
pp. 128
Author(s):  
Rugun Romaida Hutabarat
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Primary Source ◽  
Secondary Data ◽  
Criminal Offense ◽  
Criminal Procedure Law ◽  
The Law ◽  
Criminal Matters

In criminal law, a person charged with a criminal offense may be punished if it meets two matters, namely his act is unlawful, and the perpetrator of a crime may be liable for the indicated action (the offender's error) or the act may be dismissed to the perpetrator, and there is no excuse. The reasons may result in the death or the removal of the implied penalty. But it becomes a matter of how if the Letter of Statement Khilaf is the answer to solve the legal problems. The person who refuses or does not do what has been stated in the letters is often called "wanprestasi" because the statement is categorized as an agreement. The statement includes an agreement which is the domain of civil law or criminal law, so its application in the judicial system can be determined. This should be reviewed in the application of the law, are there any rules governing wrong statements in the criminal justice system. By using a declaration of khilaf as a way out of criminal matters, then the statement should be known in juridical rules. This study uses normative juridical methods, by conceptualizing the law as a norm rule which is a benchmark of human behavior, with emphasis on secondary data sources collected from the primary source of the legislation. The result of this research is that the statement of khilaf has legality, it is based on Jurisprudence No. 3901 K / Pdt / 1985 jo Article 189 Paragraph (1) of Indonesian criminal procedure law. However, this oversight letter needs to be verified in front of the court to be valid evidence, but this letter of error is not a deletion of a criminal offense, because the culpability of the defendant has justified the crime he committed. Such recognition, cannot make it free from the crime that has been committed.Keywords: Legality, Letter of Statement, Criminal Justice System

OFFENSES AGAINST THE ENVIRONMENT, ESSENTIAL DAMAGE ASSESSMENT IN THEORY AND PRACTICE

2017 ◽  
Vol 1 (78) ◽  
pp. 30
Author(s):  
Silvija Kotāne
Keyword(s):  
Criminal Law ◽  
Significant Risk ◽  
Legal Protection ◽  
Theory And Practice ◽  
Forest Environment ◽  
Criminal Offense ◽  
Significant Damage ◽  
The Law ◽  
The Republic

This paper shall review of the development of environmental criminal – legal protection in the Republic of Latvia. One of the most complicated valuation terms in Criminal law is essential harm. The adverse effects of marking, used assessment concept – "essential harm" to the Criminal Law Section 11, provisions are included as a criminal offense frame sign. Valuation concept „essential harm” or “significant damage” is widely used. Material injury is one of the mandatory features of the objective of acriminal offence defining the legal classification of the offence and, inany particular case, to assess the nature and consequences of thedamage in relation to the interests laid down by the law. In all cases, regulation is not specified. Significant damage and other interests protected by law in nature and severity to determine the natural environment, human health can be an expert evaluation. In deciding the question of material injury, which is especially qualifying characteristic of the Criminal Law Article 109, followed to the Special Law Annex 1 "Criteria for the detectable threat or significant risk to the law protected the interests of the forest environment conservation." With regard to essential harm the forest environment, evaluation is embedded in the law and are applied in practice.

What Mistake Of Law Just Might Be

2015 ◽  
Vol 18 (3) ◽  
pp. 369-417
Author(s):  
Ahson T. Azmat
Keyword(s):  
Criminal Law ◽  
Strict Liability ◽  
Safe Harbor ◽  
Legal Knowledge ◽  
Legal Moralism ◽  
Moral Content ◽  
Traditional Account ◽  
Insurance Effect ◽  
The Law ◽  
Negligence Rule

This Article examines and evaluates a distinctive, increasingly popular account of the Mistake of Law doctrine. The doctrine, deeply ingrained in American criminal law, is at the same time notoriously unclear in its scope, content, and application. A growing number of legal theorists have criticized the traditional interpretation of the doctrine; legal moralists in particular have argued that this account is conceptually confused. Because the doctrine’s use of a strict liability punishment regime does not incentivize individuals to learn the law as well as a negligence regime might, legal moralists argue that the doctrine cannot be explained by a desire to incentivize legal knowledge. In evaluating this argument, the Article defends the traditional account, often identified with the liberal positivism of Justice Holmes. The Article advances three main arguments. First, legal moralism’s claim that a negligence standard is more effective than a strict liability standard in incentivizing individuals to learn the law is false: the safe harbor provision of a negligence rule acts as an insurance effect, disincentivizing individuals to learn the law. Second, legal moralism assumes that the moral content of the criminal law is determinate, and that agents have perfectly rational, objective motivational sets. These are illicit assumptions that result in a flawed argument. Finally, the Article contends that legal moralism misinterprets the structural core of the traditional account: properly understood, the Mistake of Law doctrine employs a negligence–strict liability hybrid, and is thus more sophisticated than legal moralists realize. The Article concludes that, contrary to what a surprising number of criminal law theorists have come to accept, legal moralism fails to make a plausible case against the traditional account of the Mistake of Law doctrine.

scholarly journals Grounds and Conditions for the Application of Restrictive Measures Applied to Persons who have Committed Domestic Violence

2021 ◽  
pp. 100-110
Author(s):  
Tetiana NIKIFOROVA
Keyword(s):  
Domestic Violence ◽  
Criminal Law ◽  
Local Governments ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Offense ◽  
Restrictive Measure ◽  
The Law ◽  
Restrictive Measures ◽  
National Police

The grounds and conditions for the application of restrictive measures applied to persons, who have committed domestic violence, are provided in Art. 911 of the Criminal Code of Ukraine. It is established that in the science of criminal law there is a unanimous position that the basis for the application of restrictive measures under Art. 911 of the Criminal Code is the commission by a person of a crime related to domestic violence, and the conditions are: 1) sentencing a person not related to imprisonment; 2) release of a person from criminal liability on the grounds provided by the Criminal Code; 3) release of a person from punishment on the grounds provided by the Criminal Code. These conditions are alternative. The content of the concept of «crime related to domestic violence» is analyzed and it is established that it should be understood more broadly than the act provided for in Art. 1261 of the Criminal Code «Domestic Violence». It is proposed to add to Art. 911 of the Criminal Code a note explaining the meaning of the term «criminal offense related to domestic violence», where it is necessary to note that this concept is broader than the crime under Art. 1261 of the Criminal Code. The content of each of the conditions of application of restrictive measures is analyzed. It has been established that in the application of restrictive measures during the imposition of non-custodial sentences in practice there are problems with the interpretation of the relevant concept. It is proposed to clarify the meaning of the concept of «punishment not related to imprisonment» in Art. 911 of the Criminal Code. It is also established that the application of restrictive measures in releasing a person from criminal liability is a declarative norm and is subject to exclusion from the conditions of application of restrictive measures due to the incompatibility of the latter with the nature of exemption from criminal liability. The legislation clearly regulates the procedure for applying restrictive measures to persons released from serving a probation sentence. A number of problems that arise during the control over the behaviour of persons to whom restrictive measures have been applied by the probation authorities have also been identified. The solution to these problems is possible by harmonizing the provisions of the Criminal Code and the Law of Ukraine «On Probation», as well as other regulations governing the activities of probation bodies. It is proposed to refer the application of restrictive measures to supervisory probation, which will lead to a number of changes to the articles of the Law of Ukraine «On Probation» in terms of regulation of supervisory probation, to refer to probation subjects persons subject to restrictive measures, and to exclude the fact that it is assigned to a person released from serving a probation sentence, and in the regulations governing the development and implementation of probation programs to provide for their application to persons to whom restrictive measures have been applied. It is concluded that the probation body should be endowed with a coordinating function to implement all restrictive measures and it is necessary at the level of bylaws to establish a clear procedure for interaction of the probation body with the National Police, local state administrations and local governments to control the behaviour of individuals, which the appropriate restrictive measure is applied.

scholarly journals Vai Krimināllikuma norādes par noziedzīgo nodarījumu vainas formām ir pietiekoši skaidras?

2021 ◽  
pp. 501-509
Author(s):  
Māris Leja ◽  
Keyword(s):  
Criminal Law ◽  
Legal Theory ◽  
Mens Rea ◽  
Legal Certainty ◽  
Criminal Offense ◽  
Legal Provisions ◽  
Mental Element ◽  
The Law

The article deals with the flaws of the Criminal Law in determination of the particular form of mental element (mens rea) which is required for the specific criminal offense. Taking into account that the majority of legal provisions does not contain such indications, one of the elements of criminal offense is not described by the law. Such legislator`s approach raises doubts about the compliance of the Criminal Law with the principle of legal certainty. The article also criticizes opinions expressed in legal theory that attempt to fill the gaps allowed by the legislator, as well as offers amendments to the Criminal Law aiming to improve its coherence.

scholarly journals PERLINDUNGAN HUKUM TERHADAP NOTARIS PENGGANTI YANG AKTANYA BERMASALAH DITINJAU DARI UNDANG-UNDANG NOMOR 30 TAHUN 2004 JUNCTO UNDANG-UNDANG NOMOR 2 TAHUN 2014 TENTANG JABATAN NOTARIS

Jurnal MINUTA ◽  
2019 ◽  
Vol 1 (1) ◽  
pp. 20-27
Author(s):  
Arif Hidayat
Keyword(s):  
Criminal Law ◽  
Tax Evasion ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Civil Law ◽  
Criminal Offense ◽  
Actual Reality ◽  
State Administration ◽  
The Law ◽  
The Right

Notary in making an authentic deed must be able to account for the deed if it turns out that in the future problems arise from the authentic deed both in terms of criminal law, civil law or State administration. The problems arising from the deed made by the Notary need to be questioned whether it is the result of an error from the Notary or the error of the viewer who does not provide information in accordance with the actual reality to the Notary. Such negligence or error can occur because the Notary in question is lacking or does not understand the construction or legal actions desired by the viewer so that the deed made is contrary to the provisions of the law. Such negligence or error can also be deliberately carried out by the concerned Notary. This study focuses on Law Number 30 Year 2004 as amended by Law Number 2 of 2014 concerning Notary Position wherein this study discusses the Notary who is unable to carry out his position so he has the right to submit written leave request and at the same time accompanied by the appointment of a substitute notary. After a while, a lawsuit from a party that feels aggrieved results from the deed made by Si X as a Substitute Notary. The results of this study concluded that a notary who leaves as a substituted notary has responsibility for the deed made by his successor notary even though he is on leave from his position where the responsibility is in the form of civil liability, if the substitute notary commits an error within the scope of authority given by a notary to a substitute notary. So in that case the notary is also liable for losses suffered by the parties due to the deed made by the substitute notary. Because the notary who is replaced is the owner of the office, if the notary of origin will file leave then he will appoint an employee from his own office as a substitute notary. Criminal responsibility, in the case of a criminal offense, a notary who is replaced is not responsible, for example in the case of tax evasion. Criminal liability can only be imposed on a substitute notary if he makes a mistake outside his authority as a substitute notary. Then the notary whose leave cannot be held accountable. The substitute notary is also entitled to get the same protection and legal guarantees because every citizen has the same rights before the law.

scholarly journals Relevansi Hukum Pidana Adat Dalam Pembaharuan Hukum Pidana di Indonesia

2015 ◽  
Vol 10 (2) ◽  
pp. 195
Author(s):  
Galuh Faradhilah Yuni Astuti
Keyword(s):  
Indigenous Peoples ◽  
Criminal Law ◽  
The State ◽  
Customary Law ◽  
Law Reform ◽  
Criminal Offense ◽  
Community Or ◽  
Key Issues ◽  
The Law ◽  
Principle Of Legality

Penelitian ini mengkaji dua persoalan pokok. Pertama, relevansi Hukum Pidana Adat sebagai kontribusi dalam pembaharuan Hukum Pidana di Indoneisa. Kedua, penerapan hukum dalam penyelesaian tindak pidana berdasarkan Hukum Pidana Adat di Suku Tengger. Hasil penelitian ini menunjukkan bahwa kontribusi Hukum Pidana Adat, berupa penyelesaian perkara di luar pengadilan atau mediasi penal yang dilakukan masyarakat atau masyarakat adat secara turun temurun, sudah relevan dengan pembaharuan Hukum Pidana di Indonesia. Praktik semacam ini selaras dengan nilai dan cita-cita Bangsa Indonesia, sesuai dengan sila keempat Pancasila sebagai dasar negara. Selain itu selaras dengan ide keseimbangan Hukum Pidana, teori sifat melawan hukum, pemenuhan kewajiban adat serta perluasan asas legalitas. Masyarakat Adat Suku Tengger menggunakan mediasi penal sebagai alternatif pertama dalam menyelesaikan perselisihan atau tindak  pidana yang terjadi pada daerah mereka, kemudian menyerahkan kepada pihak yang berwajib ketika mediasi penal tidak mencapai kesepakatan yang adil. <br /><br /><br /><em>This study examines two key issues. First, the relevance of Criminal Customary Law as a contribution to the renewal of Criminal Law at Indoneisa. Second, application of the law in the resolution of a criminal offense under the Criminal Customary Law in Tengger tribe. These results indicate that the contribution of Criminal Customary Law, in the form of settling disputes out of court or penal mediation conducted community or indigenous peoples from generation to generation, it is relevant to the Criminal Law reform in Indonesia. Such practices are aligned with the values and ideals of the Indonesian nation, according to the fourth principle of Pancasila as the state. Moreover tune with the idea of the balance of the Criminal Law, the theory of nature against the law, customary obligations fulfillment and expansion of the principle of legality. Indigenous Peoples Tengger tribe using penal mediation as the first alternative in resolving disputes or criminal acts that occur in their area, and then handed over to the authorities when the penal mediation does not reach a fair deal.</em>

scholarly journals On determining the circle of domestic violence victims.

2021 ◽  
Vol 3 (3) ◽  
pp. 234-238
Author(s):  
Olha Bespal
Keyword(s):  
Domestic Violence ◽  
Criminal Law ◽  
Family Relations ◽  
Practical Importance ◽  
Criminal Code ◽  
Criminal Offense ◽  
Seeking Help ◽  
The Law ◽  
Restrictive Measures ◽  
Positive Step

It was stated that the problem of domestic violence for Ukraine remains relevant. This is evidenced not only by official statistics, but also by the number of people seeking help. A positive step in combating domestic violence is to complement the Criminal Code of Ukraine Art. 126-1. However, the disposition of this article contains some inaccuracies, among them the need to clarify which persons fall under the protection of this article. There is a similar problem in the draft Criminal Code of Ukraine, which the working group is currently working on. The article notes that an understanding of who may be victims of domestic violence as a criminal offense has a great scientific and practical importance. Because it will affect not only the correct criminal law qualification and the imposition of a fair and sufficient punishment, but also the application (or non-application) of restrictive measures against the offender, depending on how the person's actions will be qualified. The author analyzed the concepts of «close relations», «family relations», «close persons». As a result, it was concluded that these categories do not cover all persons protected by the Law of Ukraine «On Prevention and Counteraction to Domestic Violence». Therefore, to eliminate the inconsistency of criminal law with this Law, it is proposed in the disposition of Art. 126-1 «Domestic violence» of the Criminal Сode of Ukraine the phrase «concerning the spouse or the former spouse or other person with whom the guilty is (was) in family or close relations» and also in Art. 4.7.3. «Domestic violence» of the draft Criminal Code of Ukraine shall replace the phrase «concerning a spouse or other close person, including a former one» replaced by «concerning a person covered by the Law of Ukraine «On Prevention and Counteraction to Domestic Violence».

scholarly journals THE OBJECTIVE SIDE OF MISUSE OF BUDGET FUNDS, IMPLEMENTATION OF BUDGET EXPENDITURES OR PROVIDING CREDITS FROM THE BUDGET WITHOUT OR EXCEEDED BUDGET PURPOSES

2021 ◽  
pp. 492-509
Author(s):  
D. Shyian ◽  
O. Shyian
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Criminal Code ◽  
Criminal Offense ◽  
Active Behavior ◽  
The Subject ◽  
The Law ◽  
Local Budget ◽  
Objective Side

The article deals with the analysis of scientific views, theoretical provisions and legislation, examines the objective side of the misuse of budget funds, for budget expenditures or provision of credits from the budget without determined budget purposes or with its excess. It is proposed to leave part 1 of Art. 210 of the Criminal Code of Ukraine, a socially dangerous act in the form of misuse of the relevant funds as the most common in law enforcement, as well as expanding other forms, replacing them with a socially dangerous action in the form of another expenditures of the relevant budgets or funds. Since inter-budgetary transfers are de jure not included in budget expenditures, it is proposed to add to the name and disposition of Part 1 of Art. 210 of the Criminal Code of Ukraine, an indication of a socially dangerous act in the form of their implementation. As a result of the study, the authors come to the conclusion about the further actualization of the problematic of the objective side of the criminal offense provided for in Art. 210 of the Criminal Code of Ukraine. It is supported the proposal to cover the analyzed criminal law prohibition and other budget violations close in public danger to those directly named in Art. 210 of the Criminal Code of Ukraine to budget violations. It is proposed to determine the objective side of Part 1 of Art. 210 of the Criminal Code of Ukraine in the form of a socially dangerous act in the form of an action: misuse of funds, other expenditures of state or local budgets, or state or local extra-budgetary funds, or the implementation of an inter-budgetary transfer committed contrary to the law or a decision on the local budget. Considering that the analysis of the forms of committing a criminal offense under Art. 210 of the Criminal Code of Ukraine, testifies that it can be committed only in the form of active behavior of the subject of a criminal offense, it is proposed in Part 2 of Art. 210 of the Criminal Code of Ukraine to replace the instruction from an act with an action.

scholarly journals PENERAPAN TEORI PENAFSIRAN HUKUM OLEH HAKIM SEBAGAI UPAYA PERLINDUNGAN HUKUM TERHADAP NOTARIS (Studi Atas Putusan Hakim Terhadap Tindak Pidana Pemalsuan Akta Otentik)

2017 ◽  
Vol 5 (2) ◽  
Author(s):  
Agus Priono ◽  
Widodo T. Novianto ◽  
I Gusti Ayu Ketut Rachmi Handayani
Keyword(s):  
Criminal Law ◽  
Legal Protection ◽  
Legal Interpretation ◽  
Legal Basis ◽  
Criminal Offense ◽  
Actual Knowledge ◽  
Criminal Sanctions ◽  
The Law ◽  
Sense Of Justice

<p>Abstract<br />This articles aimed at to analyze the application of the Theory of Legal Interpretation by judges as an attempt of legal protection against the notary, are study of the judge’s Verdict against the crime of falsification of the authentic deed. The kind of research in this article is doctrinal, while seen from its shape including research evaluative sense and perspective. The analysis used logic deduction. Legal basis in the provision of criminal sanctions against notary can be taken but in addition to must meet formulation offense which is in law office notary and the book the act of criminal law. Judge in applying criminal sanctions against of criminal falsification an authentic deed rules must payment the following : (1) the what may be punishable and meet elements formulated in an act; (2) work of violates the laws or against the law; (3) a mistake, in the form of both were (dolus) and neglect (culpa). Recommendations are : 1) examination the allegation act punishable in forgery an authentic deed by a judge to do a holistic integral by look aspect outwardly, formal, material notarial deed associated with a task, authority the notary. 2) need to be made criteria and guidelines can be used the juridical for judges referred to forgery certificate in duty and position of a notary. 3) although there are freedom the judge in run/carry out of his rulings so the judges are not have to legalistik but prosecute at law in the country broadly including actual knowledge already established so that his ruling to reflect a sense of justice in society.</p><p>Keywords: The Application of; Interpreting; a Criminal Offense; an Authentic Deed.</p><p>Abstrak<br />Artikel ini bertujuan untuk menganalisis penerapan Teori Penafsiran Hukum oleh hakim sebagai upaya perlindungan hukum terhadap Notaris, yaitu studi atas Putusan Hakim terhadap tindak pidana pemalsuan akta otentik. Jenis penelitian dalam artikel ini adalah doktrinal, sedangkan dilihat dari bentuknya termasuk penelitian evaluatif dan perspektif. Analisis yang digunakan logikadeduksi.Dasar hukum dalam penjatuhan sanksi pidana terhadap Notaris dapat saja dilakukan namun di samping harus memenuhi rumusan pelanggaran yang tersebut dalam UUJN dan KUHP. Hakim dalam menerapkan sanksi pidana terhadap tindak pidana pemalsuan akta otentik harus dipenuhinya syarat-syarat antara lain sebagai berikut : (1) adanya perbuatan yang dapat dihukum dan memenuhi unsur-unsur yang dirumuskan dalam undang-undang; (2) perbuatan tersebut bertentangan dengan hukum/melawan hukum; (3) adanya kesalahan, baik berupa kesengajaan (dolus) dan kelalaian (culpa). Rekomendasinya adalah : 1) Pemeriksaan adanya dugaan perbuatan pidana dalam pemalsuan akta otentik oleh Hakim  harus dilakukan pemeriksaan yang holistik integral dengan melihat aspek lahiriah, formal, material Akta Notaris dikaitkan dengan tugas, wewenang, jabatan Notaris. 2) Perlu dibuat kriteria dan pedoman yang dapat dipakai landasan yuridis bagi hakim yang dimaksud pemalsuan akta dalam tugas dan jabatan notaris. 3) Meskipun ada kebebasan hakim dalam menjalankan/melaksanakan putusannya maka hakim tidak harus legalistik tetapi mengadili menurut hukum dalam arti yang luas termasuk aktualisasi pengertian-pengertian yang sudah mapan, sehingga putusannya dapat mencerminkan rasa keadilan (dalam) masyarakat.</p><p>Kata Kunci: Penerapan; Penafsiran; Tindak Pidana; Akta Otentik.</p>

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