The Legal System and the Rule of Law

2020 ◽  
pp. 223-255
Author(s):  
Xiaoqun Xu
Keyword(s):  
Criminal Justice ◽  
Procedural Justice ◽  
Human Trafficking ◽  
Legal System ◽  
Criminal Code ◽  
Court System ◽  
The Rule Of Law ◽  
Procedural Law ◽  
Legal Responses ◽  
Narcotics Trafficking

Chapter 9 covers criminal justice in the first two decades after Mao’s death (1977–1996), when Deng Xiaoping was the top leader. With a brief summary of political developments, it outlines the post-Mao legal-judicial reforms as part of the reform and opening policies launched by Deng, including the enactment of the first Criminal Code and the Criminal Procedural Law of the PRC. While the Criminal Code retained Maoist language and influence, such as placing certain offenses in a category of “counterrevolutionary crimes,” the Criminal Procedural Law offered the beginning steps leading to procedural justice. The reforms included construction of a court system, professionalization of judges, and restoration of the legal profession. The chapter also looks at legal responses to reemerging crimes such as prostitution, human trafficking, narcotics trafficking, and pornography.

“Naked Officials” and “Heavenly Net”

2020 ◽  
pp. 256-284
Author(s):  
Xiaoqun Xu
Keyword(s):  
Criminal Justice ◽  
National Security ◽  
Class Struggle ◽  
White Collar ◽  
Criminal Code ◽  
Procedural Law ◽  
Legal Responses ◽  
Societal Changes ◽  
Corrupt Party ◽  
Party State

Chapter 10 continues the survey of criminal justice in 1997–2018. It notes important changes in the Criminal Code and the Criminal Procedural Law, including the abolition of class struggle as the guide to criminal justice and “counterrevolutionary” as a criminal category, and the introduction of “harming national security” as a criminal category in the 1997 Criminal Code. Other changes include a series of amendments in recent years to the 1997 Criminal Code and the 1996 Criminal Procedural Law, providing more safeguards of the rights of the accused and reducing the number of capital offenses, and the abolition of the “reeducation through labor” (laojiao) system in 2013. Another area of legal responses to societal changes in the period is prosecution of corrupt party-state officials at high levels. A law-enforcement program called Heavenly Net was launched in early 2015 to capture corrupt officials and white-collar criminals who fled to other countries.

scholarly journals Perspektif Gender dalam Putusan Pengadilan Pada Kasus Pelecehan Seksual

2020 ◽  
Vol 22 (2) ◽  
pp. 345-362
Author(s):  
Elisabeth Yulia Rana Sinta Dewi ◽  
Melina Gabrila Winata ◽  
Ella Yolanda Sakerebau
Keyword(s):  
Sexual Harassment ◽  
Rule Of Law ◽  
Random Sampling ◽  
Justice System ◽  
Sampling Method ◽  
Criminal Code ◽  
National Commission ◽  
Court System ◽  
The Rule Of Law ◽  
The Right

Penelitian ini bertujuan untuk menghapuskan pandangan diskriminatif akibat dipengaruhi oleh budaya patriarki yang menyebabkan terabaikannya nilai-nilai keadilan moral, sehingga diperlukan kesadaran akan kesetaraan gender dalam kepastian hukum dan dalam sistem peradilan. Metode dalam penelitian ini menggunakan metode yuridis empiris dengan bahan primer berupa wawancara dan putusan pengadilan yang diambil secara random sampling, serta bahan hukum sekunder berupa buku, literatur, jurnal serta peraturan perundang-undangan. Substansi Kitab Undang-Undang Hukum Pidana dalam penanganan kasus pelecehan seksual saat ini tidak lagi memadai, karena per-kembangan jenis macam pelecehan seksual menurut Komnas Perempuan. Penelitian ini menyimpulkan bahwa pertimbangan hukum yang dilakukan oleh hakim lebih memper-timbangkan faktor perbuatan daripada faktor korban. Dalam tiga kasus yang penulis teliti penjatuhan pidana jauh di bawah hukuman maksimal akibat penafsiran KUHP yang dilakukan hakim secara gramatikal yang terkurung oleh positivisme. Padahal penemuan hukum oleh hakim akan membentuk yurisprudensi dapat digunakan pada masa mendatang dengan lebih memperhatikan keadilan dan hak pemulihan bagi korban. Gender Perspective in the Court System on Sexual Harassion Cases This study aims to eradicate discriminatory views influenced by patriarchal culture which results in the neglect of moral values, so that awareness of gender equality is needed in the rule of law and in the justice system. This study uses empirical juridical methods. Primary legal materials was collected by conducting interviews and analyzing court decisions taken by random sampling method, as well as secondary legal materials was collected from books, literature, journals and statutory regulations. The substance of the Criminal Code in handling sexual harassment cases is currently no longer adequ-ate, due to the development of types of sexual harassment according to the National Commission on Women. This research concludes that the judge considers the act factor rather than the victim factor. In the three cases the author examined, criminal conviction was far below the maximum sentence due to grammatically interpretation of the Criminal Code by judges confined by positivism perspective. Though the legal finding (rechtvinding) by the judge will form jurisprudence, which can be used in the future by focusing more to justice and the right of recovery for victims.

scholarly journals Historical Aspect and Prerequisites for Amending the Constitution of the RF

2017 ◽  
Vol 4 (3) ◽  
pp. 202-207
Author(s):  
V A Jilkin
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Russian Federation ◽  
Legal System ◽  
The United States ◽  
Criminal Code ◽  
Russian Society ◽  
Historical Aspect ◽  
The Rule Of Law ◽  
The Russian Federation

The following article examines aspects of the United States Agency for International Collaboration (USAID) programs influence in the rule of law field, started in the USSR during the early 90s. USAID-funded Rule of Law implementers helped draft the Russian Constitution, Part I of the Russian Civil Code, and the Russian Tax Code. The American Bar Association of the USA took an active part in changing Russian legislation since 1992, which was also funded by the USAID. The Constitution of 1993 included a provision on the priority of international law over national legislation. This provision was also included in Article 1 of the Criminal Code and in Article 1 of the Russian Code of Criminal Procedure. The article also deals with an enshrined supremacy of the Constitution found in the US Constitution and that of the European countries. For example, if there is a conflict between constitutional provisions and an international treaty, priority is given to the Constitution. Not all states recognize certain norms and implement them, just as legal practice is not always identical. Attempts to introduce alien values, ideologies, cultures and traditions, all the more with the help of international law, pose a threat to the democratic foundations of the Constitution as a legal act that has the highest legal force in the legal system of the state. The author suggests that the text of the Constitution of the Russian Federation would see the provision removed, according to which international law forms an integral part of the legal system of the Russian Federation. Amendments to the Constitution of the Russian Federation will strengthen Russia’s independence in the sphere of law, bringing back the best traditions of the functioning state authorities and judicial bodies, which should correspond to the current development of Russian society. Keywords: international law, constitutional law, the rule of law, double standards, human rights.

The Path to the Rule of Law—An Overall Review of Legal Reform, Crime and the Judicial System During the Transition Era in China

2019 ◽  
Vol 7 (1) ◽  
pp. 46-56
Author(s):  
Ziwei Qi
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Reform ◽  
Criminal Code ◽  
Judicial System ◽  
Social Forces ◽  
The Rule Of Law ◽  
Republic Of China ◽  
The Social ◽  
Political Forces

In order to understand crime and the legal system in the People’s Republic of China (P.R.C.), it is necessary to understand the components of a crime and the structure of the judicial system in the P.R.C. By examining the elements of crime from the written criminal code and by analysing the structure of the judicial system, we will find some procedural and substantive challenges to appeal, which might contradict the philosophy of unbiased judicial principles. The article also explores possible social and political forces that might affect the direction of legal reform in China. The author aims to provide the readers with a basic overview of the judicial system in China and the social forces behind the current legal reform towards the rule of law.

Justice Defiled

2021 ◽  
pp. 217-239
Author(s):  
Debasish Roy Chowdhury ◽  
John Keane
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Legal System ◽  
Police Force ◽  
Court System ◽  
Social Foundations ◽  
Power And Control ◽  
The Social ◽  
Practical Effect ◽  
And Control

India’s criminal justice system is seen to be so broken that even the dysfunctional and corrupt police force is reckoned to have a better shot at ensuring justice than the courts. Given the speed at which rape cases—or all cases, for that matter—crawl through a clogged and corrupted legal system, the chances of swift justice are non-existent. The decaying and sluggish court system ensures that India has one of the world’s highest rates of ‘undertrials’, or people awaiting trial and sentencing in prison. A clogged and corrupted court system hastens the breakdown of the social foundations of Indian democracy. Ultimately, the infirmities of the Indian judiciary violate the spirit and substance of the rule of law, the principle that legal institutions and written laws should have the practical effect of curbing and balancing the ambitions of the powerful, and those seeking power over others. According to that principle, rule of law is the cure for despotism. What India now has, however, is ‘rule through law’, a system in which law is weaponized as an instrument of power and control by elected despots, thanks to a slow and servile judiciary

scholarly journals The Canadian Criminal Code Offence of Trafficking in Persons: Challenges from the Field and within the Law

2015 ◽  
Vol 3 (1) ◽  
pp. 88-102 ◽  
Author(s):  
Julie Kaye ◽  
Bethany Hastie
Keyword(s):  
Criminal Justice ◽  
United Nations ◽  
Human Trafficking ◽  
Criminal Law ◽  
Criminal Code ◽  
Trafficking In Persons ◽  
Canadian Criminal Code ◽  
The United Nations ◽  
The Law

Despite early ratification of the United Nations Trafficking in Persons Protocol, the <em>Criminal Code</em> offence of trafficking in persons in Canada has received little analytical or interpretive attention to date. Adopted in 2005, this offence has resulted in successful convictions in a limited number of cases and criminal justice authorities have continued to rely on alternate or complementary charges in cases of human trafficking. In particular, prosecutions for cases involving non-sexual labour trafficking remain extremely low. This article provides a socio-legal examination of why the offence of trafficking in persons in Canada is under-utilized in labour trafficking cases. Based on an analysis of data generated from 56 one-on-one interviews gathered from a variety of actors involved in counter trafficking response mechanisms and a legal examination of the key components of the offence, we argue that definitional challenges have resulted in narrow understandings and problematic interpretations of the Criminal Code offence. Such narrow interpretations have resulted in restricted applicability, particularly in cases of labour trafficking. More broadly, the article points to the need to address the limitations of the <em>Criminal Code</em> while formulating responses to trafficking that are not dependent on criminal law.

PROBLEM ASPECTS OF CONSTITUTIONALITY AND APPLICATION OF ART. 375 OF THE CRIMINAL CODE OF UKRAINE

2018 ◽  
Author(s):  
Hryhoriy Krainyk ◽  
◽  
Vitaliy Perzhul ◽  
Oleksandr Hailiunas ◽  
◽  
...  
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Legal System ◽  
Criminal Code ◽  
The Body ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
European Court ◽  
Special Part ◽  
Principles And Standards

This article is devoted to the analysis of positions of the article 375 of Criminal Code of Ukraine, which recently kept the action, while Constitutional Court of Ukraine did not make decision about it’s unconstitutionality. In work we analyzed the Constitutional Court’s decisions and practice, analyzed possible options for criminalization and decriminalization in Ukrainian criminal law. The practice of legal application about article 375 of the Criminal Code of Ukraine, exactly, the rendering by a judge of a knowingly unjust decision. The focus is on the fact that the courts are deciding these cases, in some aspects, they understand the scope of the named norm of criminal law differently, which leads to different enforcement. In this regard, we investigated diametrically opposed positions of reputable scientists regarding this norm and possible options of its new edition. Authorities also disagree with the separate opinion of the judges of the Constitutional Court of Ukraine, in regard to contradictions of the constitutional norms, which regulate the process of adopting laws to declare them unconstitutional, and the legal force of such decisions. The practice of the European Court of Human Rights is also an important part of the work, which has repeatedly noted a similar problem in the legal system of Ukraine. Therefore, apart from the constitutionality of the norm of rendering a court decision in an inappropriate manner, the work of the authors includes an important discussion of the systemic gap that exists in the context of the process of adoption and/or rejection of the law. It should also be noted that the court practice regarding article 375 of the Criminal Code of Ukraine is quite varied, which today does not make it possible to form some unified and uncontroversial approaches asto whatrole the existence of the Criminal Code's article on a judge's rendering of an unjust decision in the relevant version has had for some time. Summarizing the main points, we believe that the legislator should avoid ambiguous and controversial formulations in the disposition of the articles of the Special Part of the Criminal Code of Ukraine in future. For an effective solution of this problem there is a project, which is currently being worked on and which is called to impose liability for rendering an invalid verdict, but to do it in those kind of form, so that the body of constitutional jurisdiction would not have any claims against it in the context of unconstitutionality. Exactly this legal balance will allow us to speak about the closeness to the sphere of criminal law to the principles and standards of the rule of law, that are inherent in most states with a developed legal system.

scholarly journals Dekonstruksi Ideologi Pancasila sebagai Bentuk Sistem Hukum di Indonesia

2019 ◽  
Vol 3 (1) ◽  
pp. 1
Author(s):  
Achmad Hariri
Keyword(s):  
Social Justice ◽  
Procedural Justice ◽  
Rule Of Law ◽  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Legal Systems ◽  
The Rule Of Law ◽  
Substantive Justice

Pancasila legal system in Indonesia does not seem to have found a final formulation, it is still abstracted from the dominant legal system, namely civil law / rechstaat. In the 1945 Constitution it is clear that Indonesia promulgates as a legal state, although there is no implicit explanation of the legal system which is adopted (rechstaat, the rule of law or the Pancasila legal system), on the other hand Pancasila becomes the ideology and basis of the state, therefore there needs to be a formulation of the Indonesian legal system by deconstructing (reading; dismantling) the Pancasila ideology, so that the Pancasila is not only an ideology, but also as a legal system adopted in Indonesia. Pancasila can be placed in a prismatic postulate, where Pancasila is placed as a counterweight between existing legal systems, the Pancasila legal system can be used as an alternative legal system originating from noble values, legal systems relevant to plural societies are legal pluralism, namely common law configurations who uphold substantive justice, civil law that knows procedural justice, and the Pancasila legal system that upholds social justice. so that the substance of prismatic Pancasila law can be realized, namely justice as its purpose.

Reaktualisasi Proses Penyidikan oleh Kepolisian Berbasis Nilai-Nilai Pancasila dan Optimalisasi Pemanfaatan Teknologi

Jurnal Hukum ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 1737
Author(s):  
Ira Alia Maerani
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Justice System ◽  
Public Prosecutor ◽  
Public Confidence ◽  
The Rule Of Law ◽  
Positive Law ◽  
Use Of Technology ◽  
The Times

Abstract                Indonesian Criminal Justice System consists of the police, public prosecutor and the courts. The role of the police investigators is certainly vital as the frontline in building public confidence in the rule of law in Indonesia. The role of the investigator is quite important in realizing society’s  justice. The era of globalization requires a pattern fast-paced, instant, measurable, and transparent of life and it requires investigators to follow the times by optimizing the use of technology. The aim of this study is to give effect to the rule of law in Indonesia that provides fairness, expediency and certainty. However, it considers to have priority of Pancasila values in the process of inquiry and investigation. The values of supreme divinity, God (religious), humanity, unity, democracy and justice are values that establish a balance (harmony) in enforcing the law. Law and its implementation can create product which meets the demands for social justice. This paper will examine the role of the investigator according to positive law currently in force as well as the role of investigator in implementing the values of Pancasila, accompanied by optimizing the use of technology. Keywords: Re-actualizing, Investigation, Police, values of Pancasila, Technology   AbstrakSistem Peradilan Pidana Indonesia meliputi institusi kepolisian, kejaksaan, dan pengadilan. Peran penyidik dalam institusi kepolisian tentunya amat vital sebagai garda terdepan dalam membangun kepercayaan masyarakat terhadap penegakan hukum di Indonesia. Peran penyidik amat besar dalam terwujudnya keadilan di masyarakat. Era globalisasi yang menuntut pola kehidupan yang serba cepat, instan, terukur, dan transparan menuntut penyidik untuk mengikuti perkembangan zaman dengan mengoptimalkan pemanfaatan teknologi. Tujuannya adalah untuk memberikan arti bagi penegakan hukum di Indonesia yakni memberikan keadilan, kemanfaatan, dan kepastian. Namun yang harus diperhatikan adalah mengutamakan nilai-nilai Pancasila dalam melakukan proses penyelidikan dan penyidikan. Nilai-nilai ketuhanan yang maha esa (religius), kemanusiaan, persatuan, kerakyatan dan keadilan merupakan nilai-nilai yang membangun keseimbangan (harmoni) dalam menegakkan hukum. Sehingga produk hukum dan pelaksanaannya memenuhi rasa keadilan masyarakat. Tulisan ini akan mengkaji tentang peran penyidik menurut hukum positif yang saat ini berlaku serta peran penyidik dalam mengimplementasikan  nilai-nilai Pancasila dengan diiringi optimalisasi pemanfaatan teknologi.Kata Kunci: Reaktualisasi,Penyidikan,Kepolisian,Nilai-nilai Pancasila,Teknologi

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