6. Criminal capacity, mens rea, and fault

Author(s):  
Jeremy Horder

This chapter deals first with another fundamental requirement of a crime: criminal capacity. It is a precondition of criminal liability that the defendant is a person with sufficient capacity to be held responsible. This leads to an examination of infancy and insanity as barriers to criminal responsibility, and then to a consideration of special factors affecting corporate criminal liability. Secondly, this chapter considers fault requirements as an element of criminal offences. It explores some of the reasons for and against the criminal law requiring proof of fault in any form. It also considers principal varieties of fault requirement in the criminal law, such as intention and recklessness.

2017 ◽  
Vol 2 (2) ◽  
pp. 144-154
Author(s):  
Muchammad Chasani

The regulation of corporate criminal liability in Indonesia's criminal justice system is basically a new and still debatable issue. It is said that because in the Criminal Code is not recognized and regulated explicitly about the corporation as a subject of criminal law. This is a natural thing since the WvS Criminal Code still adheres to the principle of "societas delinquere non potest" or "non-potest university delinquere", that is, a legal entity can not commit a crime. Thus, if in a society there is a criminal offense, then the criminal act is deemed to be done by the board of the corporation concerned. Regarding the corporate criminal responsibility system in Indonesia, in the corruption law Article 20 paragraph (1), if the corporation committed a criminal act of corruption, then those responsible for the criminal act shall be the corporation only, the management only, or the corporation and its management. Thus, it can be said that the regulation of corporate criminal liability in the legal system in Indonesia is expressly only regulated in special criminal legislation, because the Criminal Code of WvS still adheres to the principle of "societas delinquere nonpotest" so it is not possible to enforce corporate criminal liability in it.


Rechtsidee ◽  
2021 ◽  
Vol 7 ◽  
Author(s):  
Sanggup Leonard Agustian ◽  
Fajar Sugianto ◽  
Tomy Michael

The research objective is to find out how criminal law against the environment accommodates criminal acts committed by corporations and to find out the practice of settlement through criminal law instruments in terms of corporate criminal liability in the environmental sector. The research method used is a normative juridical research method. There is the existence of criminal law as a part of 3 law enforcement regimes (state administrative law and civil law). then the involvement of criminal law in the settlement in the environmental sector regulates the existence of corporate criminal liability (business entity) as a subject of criminal law. The corporate criminal responsibility used by the UUPPLH is strict liability according to the law.


Lentera Hukum ◽  
2020 ◽  
Vol 7 (1) ◽  
pp. 37
Author(s):  
Ayu Izza Elvany

This paper analyzes how formulation policy of lobster seeds smuggling regulated in Indonesian law to optimize the effectiveness of illegal fishing enforcement, considering penal policy is the basis of criminal law operationalization. This research uses both statute approach and conceptual approach as legal research methods to analyze the issued legal problem. Fishery law in Indonesia regulated in Law No. 45 of 2009 amending Law No. 31 of 2004 concerning Fishery, especially Articles 88 and 16 paragraph (1) which cover the formulation policy of lobster seeds smuggling enforcement. This study will be analyzed into three aspects which are the conduct (the criminal offense), criminal liability, and sentencing system. The result shows that law enforcement regarding the smuggling of lobster seeds in Indonesia is ineffective due to the nonexistence of corporate criminal liability in the fishery law and its sentencing system is lack of both the specific minimum penalty regulation and the penal measures as criminal punishment. However, the draft of the fishery law has already set corporate criminal liability; hence it also regulates the penal measures, in the form of secondary sanctions. Nevertheless, instead of enacting the specific minimum penalty, the draft only determined the maximum penalty as well. Keywords: Formulation Policy, Fishery Law, Lobster Seeds Smuggling.


2016 ◽  
Vol 1 (1) ◽  
pp. 17
Author(s):  
Nurul Sasmita

The aims of this thesis is (1) to investigate andexplain the positions of corporations in conducting banking criminalacts, and (2) also to identify and explain the criminal responsibility ofbank as the perpetrator in banking criminal acts. This research isnormative, conceptual approach and the approach of legislationregarding responsibility principles of the corporation for banking criminalacts.Corporations have chances in committing a crime, especially bankingcriminal acts just by making a corporation recognized as a subject ofexistence apart from human beings, so that in practice there is a criminal offense committed by the corporation. The corporation takespart in the occurrence of a crime. In practice, the determination of acriminal offenseconducted by the corporation is known through two things: first, the works of the committee: they should be constructed as theyuse the principles of the liability of corporation’s criminal actions. Principally, stakeholders and officials or employees of a corporationhave the responsibility for its owncorporate actions; second, errors in the corporation,as long as it is in the science of criminal law, the overview of criminals is still oftenassociated with physical actions performed by the manufacturers(fysieke dader) but this can be overcome by the study of  "functionalactors" (functioneledader). We can prove that the action of committeeor employees of the corporation in the society act traffic concerned,the acts of the corporationerrors in the forms (dolus or culpa) must be regarded ascorporate faults.Towards the corporations that make banking criminal acts we canhave their responsibility with the principles of strict liability. Onthe principle of strict liability, it is known that the responsibility ison them even if they do not have the required mens rea. The substanceof this principle is that the perpetrator has been punished if theperpetrator may have provable conduct prohibited by the criminalprovision (actus reus) withoutsee the inner attitude. In this conception, the corporation is consideredhaving responsibility forphysical acts performed by management. A corporation convicted in principles isintended to develop a sense of justice in the corporation who commitsbanking criminal acts as stated in Article 46 paragraph (2), sothat if a corporation committed criminal acts, we can also have theresponsibility of the corporation. Keywords:Banking Criminal Acts, Corporation, ResponsibilityMenurut peraturan perundang-udangan, korporasi sebagai subyek hukum dapat dikenakan pidana sebagaimana manusia melakuka tindak pidana. Pada praktiknya, penentuan tindak pidana yang dilakukan oleh korporasi diketahui melalui dua hal, yaitu pertama tentang perbuatan pengurus yang harus dikonstruksikan sebagai perbuatan korporasimaka digunakanlah asas pertanggungjawaban pidana. Pada asas tersebut stakeholder maupun pengurus atau pegawai suatu korporasi, bertanggungjawab terhadap perbuatan korporasi itu sendiri. dan kedua tentang kesalahan pada korporasi, memang selama ini dalam ilmu hukum pidana gambaran tentang pelaku tindak pidana masih sering dikaitkan dengan perbuatan yang secara fisik dilakukan oleh pembuat (fysieke dader) namun hal ini dapat diatasi dengan ajaran “pelaku fungsional” (functionele dader). Kita dapat membuktikan bahwa perbuatan pengurus atau pegawai korporasi itu dalam lalu lintas bermasyarakat berlaku sebagai perbuatan korporasi yang bersangkutan maka kesalahan dalam bentuk (dolus atau culpa) mereka harus dianggap sebagai kesalahan korporasi. Terhadap korporasi yang melakukan tindak pidana perbankan dapat dimintai pertanggungjawaban pidana dengan menggunakan asas strict liability.Pada asas strict liability diketahui bahwa pembebanan tanggung jawab pidana kepada pelakunya sekalipun pelakunya tidak memiliki mens rea yang dipersyaratkan. Adapun substansi dari asas ini adalah pelaku sudah dapat dijatuhi pidana apabila pelaku telah dapat dibuktikan melakukan perbuatan yang dilarang oleh ketentuan pidana (actus reus) tanpa melihat sikap batinnya. Dalam konsepsi ini, korporasi dianggap bertanggung jawab atas perbuatan yang secara fisik dilakukan oleh pengurus (direksi dan komisaris). Dipidananya korporasi pada asas ini dimaksudkan dapat menimbulkan rasa keadilan pada korporasi yang melakukan tindak pidana perbankan, sehingga apabila korporasi melakukan tindak pidana maka korporasi juga dapat dimintai pertanggungjawaban.Kata kunci: Korporasi, Pertanggungjawaban, Tindak Pidana Perbankan


Actus Reus is known as the external element of the objective component of Criminal Law. Mens Rea, the guilty intention, determines the criminal responsibility. Mens Rea and Actus Reus both are the components of a criminal activity that determines the liability of the accused person. An action carried out in furtherance of criminal activity doesn’t become an attempted crime unless it is confirmed by the illegality for which it was conducted. An attempted crime is an action that reveals the illegal intention on its face. The aspects of a crime such as the Mens Rea, Actus Reus, intentional crime, unintentional act caused as a result of carelessness, motivates to indulge in violating the provisions of law. The four theories of law such as the rule of proximity, the test of unequivocally, the indispensable element approach and the test of social danger are the elements of a crime.


2021 ◽  
pp. 127
Author(s):  
Viktor N. Borkov

The article examines the criminal-legal aspects of the actual problem of protecting the inviolability of the individual from the unacceptable activity of state representatives in the exercise of law enforcement functions. Topical issues for theory and practice of the legal nature of the provocation of crime and the falsification of criminals remain debatable. There are no unified approaches to the qualification of provocative and inflammatory actions and cases of "throwing" objects to citizens, for the turnover of which criminal responsibility arises, there is no theoretical justification for the criminal legal status of persons provoked to commit a crime. The article shows that the qualification of common cases of provocation of crimes and falsification of criminals according to the norms providing for liability for abuse of official authority, falsification of evidence or the results of operational investigative activities should be recognized as not accurate. At the same time, responsibility for these actions committed by subjects who are not officials, and without the participation of the latter, has not been established at all. The author proposes a draft criminal law provision providing for liability for inducing to commit a crime or its staging in order to illegally create grounds for criminal prosecution. The paper questions the approach according to which a person provoked by law enforcement officers to commit a crime is not subject to criminal liability regardless of the specifics of the encroachment.


Postgenocide ◽  
2021 ◽  
pp. 33-62
Author(s):  
Kevin Aquilina

This chapter shows that although often states are parties in a genocide enterprise, the centrality—and responsibility—of states for genocide does not receive attention commensurate with the severity of the problem. Indeed, genocidal states are not held criminally responsibility for genocide. Underscoring difficulties at proving state criminal responsibility for genocide, the analysis compares and contrasts individual criminal responsibility and state criminal responsible for genocide. Whereas in the former case the matter has been dealt with by domestic and international criminal courts and tribunals, in the latter case there is no international judicial authority which can try states for criminal responsibility. However, non-state corporate criminal liability, and evolution of this institute in international law, may provide some transferable lessons for state responsibility for genocide. The chapter highlights the nexus between individual responsibility and state responsibility, and the failures of international genocide law in establishing state responsibility for genocide.


2021 ◽  
pp. 126-150
Author(s):  
Michael J. Allen ◽  
Ian Edwards

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. This chapter discusses the meaning of negligence, arguments for and against negligence as a basis for criminal liability, the meaning of strict liability, the origins of and justifications for strict liability, the presumption of mens rea in offences of strict liability, defences to strict liability, and strict liability and the European Convention on Human Rights. The feaeture ‘The law in context’ examines critically the use of strict liability as the basis for liability in the offence of paying for the sexual services of a person who has been subject to exploitation.


2020 ◽  
Author(s):  
Tomas Girdenis ◽  
Marius Laurinaitis ◽  
Irmantas Rotomskis ◽  
Raimundas Jurka

Abstract Cases, where operations of legal entities entail unfair income through the malpractice of improving financial reports, are quite frequent. Such behaviour is unacceptable and deserves a stern response from the state, not only against persons involved in illegal activities but also against particular legal entities resorting to such behaviour. The purpose of this article is to analyse the elements of corporate criminal liability in the legislation of Lithuania. The article investigates the fundamentals of corporate criminal liability with the major focus on the problems of distinction and applicability of relevant elements of the latter. The analysis emphasizes the assurance of the inevitability of corporate criminal liability. The article also discusses the method of criminalizing the liability of legal entities, chosen by the Lithuanian legislator, according to which criminal liability can arise only for a limited scope of criminal offences. Presumably, the current legal regulation enables an unreasonable avoidance of criminal liability in cases where the criminal offence falls outside the aforementioned limited scope, even though it was committed to gain a material advantage over the affected party. The article also addresses the guilt of legal entities. In this regard, the article criticizes the approach of the Supreme Court of Lithuania for its evident limitation of corporate criminal liability, especially in the context of large corporations owned by many shareholders. As a possible solution, it was proposed to lay criminal responsibility on corporate governance bodies instead of the shareholders.


Author(s):  
Jonathan Herring

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Criminal Law Concentrate covers fundamental principles of this area of law and helps the reader to succeed in exams. Topics covered include the basis of criminal liability, actus reus, mens rea, and strict liability. The chapters also examine offences such as non-fatal offences, sexual offences, homicide, inchoate offences, theft, and fraud. Defences are also examined in the final two chapters. This edition has been updated to include: recent developments in the law and new cases such as Jogee, Conroy, Golds, Ivey, and Joyce; more detail on sexual offences; more revision tips and tables to improve learning; and an ‘Exam essentials’ feature.


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