Benthamite Reflections on Codification of the General Principles of Criminal Liability: Towards the Panopticon

2006 ◽  
Vol 9 (2) ◽  
pp. 391-452 ◽  
Author(s):  
Ian Leader-Elliott
Keyword(s):  
Criminal Responsibility ◽  
Criminal Liability ◽  
Common Law ◽  
Criminal Code ◽  
Model Penal Code ◽  
Judicial Discretion ◽  
Criminal Offenses ◽  
Ignorance Of Law ◽  
American Model ◽  
The Uk

Chapter 2 of the Australian Commonwealth Criminal Code codifies the general principles of criminal liability. All federal criminal offenses, whether or not they appear in the substantive chapters of the Code, are subject to its provisions. Chapter 2 is based on article 2 of the American Model Penal Code and the equivalent general part of the UK Draft Criminal Code. It is, however, a more completely articulated statement of the elements of liability than either of its predecessors. This paper examines the relationship between physical and fault elements in chapter 2. It takes a Benthamite view of its provisions. Though chapter 2 was conceived as a legislative restatement of common law principles of criminal justice it can be expected to play a more significant role as a manual of instructions for the expression of legislative intentions. Chapter 2 enables the legislature to reclaim from courts the authority to define the grounds of criminal liability. There remain, however, areas of uncertainty resulting from the mismatch between the articulate clarity of most chapter 2 provisions and others that envisage the exercise of unstructured judicial discretion. Two issues in particular are discussed: liability for ulterior intentions and the effect of error or ignorance of law on criminal responsibility. The paper proposes enactment of a defense of reasonable mistake of law as a supplement to chapter 2. It concludes with an expression of hope that Australian criminal law theory might be based on a more unified consideration of legisprudence and common law.

scholarly journals Peculiarities of qualification of criminal offenses against movement safety and transport operation: a review of judicial practice.

2021 ◽  
Vol 3 (3) ◽  
pp. 227-234
Author(s):  
Vasyl Berezniak
Keyword(s):  
Traffic Safety ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Judicial Practice ◽  
Criminal Offenses ◽  
Decisive Evidence ◽  
Act Assessment

The article reviews some court decisions, which highlight the key features of the assessment of criminal offenses against traffic safety and transport operation. Typical situations of committing criminal offenses of this type with the analysis of difficulties of qualification and further bringing a person to criminal responsibility are studied. In addition, attention is paid to the differentiation of legal liability, where the means of committing an offense or the subject is a vehicle, as well as highlighted key aspects related to the definition, type and nature of the act. Assessment of criminal offenses against traffic safety and transport operation under art. 286 of the Criminal Code of Ukraine should be based not only on the rules of substantive law, ie the law of Ukraine on criminal liability. Within the framework of criminal proceedings, the employee-practitioner is guided by the rules of the Criminal Procedure Code of Ukraine, which provides for the possibility of changing the assessment of a criminal offense, taking into account the available facts and circumstances. Regarding the existence of certain regulations governing the specifics of assessment and further pre-trial investigation into the commission of a criminal offense against traffic safety and transport operation, today the national justice system has formed judicial practice on this issue. However, it requires some generalization and identification of key points in the qualification of the investigated criminal offenses or further criminal proceedings. The decisive evidence in criminal proceedings concerning criminal offenses against traffic safety and transport operation is the experts’ conclusions from various types of examinations, which are appointed in these proceedings. In particular, auto-technical, auto-commodity, transport-trasological expert studies, which establish important circumstances for establishing the suspect’se guilt or innocence.

scholarly journals Serious Consequences Caused by the Crime as an Aggravating Circumstance

2020 ◽  
pp. 305-312
Author(s):  
Viktor ZAKHARCHUK
Keyword(s):  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Final Decision ◽  
Criminal Offense ◽  
Judicial Practice ◽  
Criminal Offenses ◽  
Significant Strength ◽  
Additional Qualification ◽  
Objective Side

The judicial practice of sentencing is analyzed in the case when a criminal offense has serious consequences that are outside the objective side of a certain socially dangerous act. Given the evaluative nature of this circumstance and the lack of legislative explanation of its content, there are typical mistakes that courts make in classifying the serious consequences of the crime as an aggravating circumstance. The order of sentencing in the case when the death of the victim was caused by a criminal offense, property damage in large or especially large amounts, etc. was investigated. The procedure for distinguishing serious consequences as an aggravating circumstance and as a mandatory feature of the objective side of the relevant criminal offense is analyzed. It is established that in some cases the task of a serious criminal offense requires additional qualification under other articles of the Criminal Code of Ukraine. The article proposes the criteria with serious consequences of the crime should be considered as an aggravating circumstance. It is established that the grave consequences caused by the crime as an aggravating circumstance do not form a new basis for criminal liability, as the court imposes punishment within the sanction of the article. Also, when the court decides the issue of criminal responsibility of the perpetrator, the signs of the composition of the criminal offense will be crucial, and not the presence of aggravating circumstances. After all, the court must impose a penalty within the limits provided by the sanction of the article containing the elements of a particular offense. It is argued that the main feature that distinguishes serious consequences from other criminal offenses and from other aggravating circumstances is the significance of these circumstances, i.e. the significant strength of influence compared to other circumstances that characterize the severity of the crime and the perpetrator. Recognition of certain consequences as grave and classifying them as aggravating circumstances belongs to the court, which must thoroughly examine the evidence of the occurrence of such consequences and make a final decision.

Killing through negligence and its distinction with other kinds of murder

2021 ◽  
Author(s):  
Vladimir Myslivyy ◽  
Angelina Mykyta
Keyword(s):  
Criminal Law ◽  
Human Life ◽  
Criminal Liability ◽  
Criminal Code ◽  
The State ◽  
Sufficient Information ◽  
Main Body ◽  
Common Features ◽  
Criminal Offenses ◽  
The Common

Problem setting. According to Art. 27 of the Constitution of Ukraine, everyone has an inalienable right to life, no one can be arbitrarily deprived of life, and the state, in turn, is obliged to protect human life. Protection of a person’s life, as a duty of the state, is manifested in the establishment of criminal liability, enshrined in Section II “Criminal offenses against life and health of a person” of the Criminal Code of Ukraine, who commit socially dangerous acts. whether there are criminal offenses and what punishments they should be committed. The distinction between crimes such as premeditated murder and negligent deprivation of another’s life is important, as criminal law theory still does not have sufficient information on this issue and does not have a complete list of features of the above crimes, but we tried to identify them in our article. Target of research. Deepening their knowledge on the caution of a person’s life due to inconsistency and drawing the line between possible offenses and conditional authority, clarifying the special characteristics of the perpetrator and the victim, outlining the essential features of the perpetrator and the victim, and researching the regulation of negligent proposal of a new version of the Criminal Code of Ukraine. Analysis of resent researches and publications. The theoretical basis for the study of the problem of murder through negligence are the works of legal scholars, in particular, M. Bazhanov, V. Borisov, S. Borodin, V. Glushkov, O. Gorokhovskaya, I. Zinchenko , V. Tyutyugin, O. Us, E. Kisilyuk, V. Kuts, M. Yefimov, S. Likhova, V. Stashis, V. Shablisty and others. Article’s main body. According to Art. 3 of the Constitution of Ukraine, man, his life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value. Given this constitutional provision, the legislator should pay special attention to the criminal law protection of human life and health as the most important public relations. So it is no coincidence that considering such encroachments as one of the most dangerous in the criminal law dimension, the legislator established criminal liability for their commission in Section II “Criminal offenses against life and health” of the Special Part of the Criminal Code of Ukraine. Due to the high public danger and the high prevalence of criminal offenses against human life and health, criminal law theory and law enforcement practice are under increasing scrutiny. Thus, the analysis of judicial practice in recent years shows that, for example, among all murders (Articles 117-119 of the Criminal Code of Ukraine) the number of persons convicted of deprivation of life due to negligence is about 15 percent annually. In our opinion, it is also advisable to analyze the concept of “murder” by comparing the common and distinctive features of the offenses referred to in Art. Art. 115 and 119 of the Criminal Code of Ukraine. According to scientific results, we can conclude that these offenses have many common features. It is possible to understand the common features and preconditions for the spread of these types of offenses. Conclusions and prospects for the development. A study of issues related to the criminal law analysis of murder through negligence and its difference from other types of murder, shows that these acts encroach on the identical object, which is “human life as a set of social relations.” Unfortunately, nowadays the dynamics of offenses committed in Art. Art. 115 and 119 is intensifying, so consideration of their delimitation and characterization of their features is very important. The study examines the main features of these types of crimes, as well as analyzes some provisions of national law and proposes some adjustments to them.

PROBLEM ASPECTS OF CRIMINAL RESPONSIBILITY FOR RAPE IN THE CONTEXT OF CHANGES TO ART. 152 OF THE CRIMINAL CODE OF UKRAINE

2017 ◽  
Author(s):  
Stepan Burda ◽  
Keyword(s):  
Human Rights ◽  
National Security ◽  
Mental State ◽  
Criminal Liability ◽  
Criminal Code ◽  
Direct Impact ◽  
Sexual Freedom ◽  
Normal Life ◽  
Basic Law ◽  
Criminal Offenses

The article describes the criminal liability for rape in the context of amendments to Art. 152 of the Criminal code of Ukraine. It is noted that sexual freedom and sexual integrity are among the most important personal human rights. It is regulated by the Basic Law of our state and no wonder the legislator placed this object of encroachment in the first sections of the Criminal Code of Ukraine after such as the basics of national security, life and health, will, honor and dignity of the person. Violation of these rights is reflected in the mental state of the victim, has a direct impact on the health, normal life of the person. It is established that the separation of Section IV "Criminal offenses against sexual freedom and sexual integrity of a person" in the Special Part of the Criminal Code of Ukraine means increasing the state's attention to the state of sexual relations in Ukraine. Sexual freedom and inviolability are among the most important personal human rights. It is regulated by the Basic Law of our state and not without reason the legislator placed this object of encroachment in the first sections of the Criminal Code of Ukraine after such as the basics of national security, life and health, will, honor and dignity of the person. Violation of these rights is reflected in the mental state of the victim, has a direct impact on the health, normal life of the person. It should be noted that criminal offenses against the life and health of a person, criminal offenses against the honor of freedom and dignity of a person, criminal offenses against sexual freedom and sexual integrity of a person are the most serious and terrible of all existing in the modern Criminal Code of Ukraine. these crimes, in addition to severe physical trauma, leave in the minds of the victim, his relatives and friends great and horrible memories that last a lifetime, traumatize the psyche and often lead to suicide of victims who can not be rehabilitated. The opinion is expressed that in the disposition of Article 152 of the Criminal Code of Ukraine there is a certain uncertainty in the question of which

ANALISIS YURIDIS TINDAK PIDANA PENGGELAPAN YANG TIMBUL DARI HUBUNGAN SEWA MENYEWA MOBIL DIKAITKAN DENGAN PASAL 372 KUHP

2016 ◽  
Vol 2 (2) ◽  
pp. 201-216
Author(s):  
Hurip Agustina ◽  
Dadang Suprijatna ◽  
Aal Lukmanul Hakim
Keyword(s):  
Rule Of Law ◽  
Criminal Responsibility ◽  
Bottom Layer ◽  
Criminal Code ◽  
Public Prosecutor ◽  
Criminal Offense ◽  
The Rule Of Law ◽  
The Public ◽  
Criminal Offenses ◽  
Car Rental

Crime embezzlement car rentals are lately often devastating car rental owner. This is an issue where the meaning of a rule of law if the crime committed community can not be followed by the rule of law, such as crimes by way of evasion is one of the types of crimes against human wealth which is stated in Article 372 of the Criminal Code, which is a crime that does not exist inexhaustible, both from the bottom layer to the top layer of society can also be committing a criminal act embezzlement is a crime that originated from the existence of a trust in others, and that trust is lost because of the lack of an honesty. It is stated that the crime of embezzlement have a problem that is closely linked to attitudes, moral, mental, honesty and trust humans as individuals. The purpose of this study are as follows: 1) To determine and analyze the occurrence of the crime of embezzlement car rental. 2) To know and analyze the application of Article 372 of the Criminal Code the crime of embezzlement in the rental car. 3) To know and analyze the efforts of the police in preventing crime of embezzlement car lease. This study uses normative juridical approach that is used to make the description clear, systematic, transparent and precise about the facts / specific nature of the area and population which is then analyzed to obtain the desired facts. Criminal offense embezzlement rental car can be imprisoned if they meet the overall elements of the offenses charged by the public prosecutor and the offender accountable for his actions. If the offender does not meet one of the elements of which the accused, then it can not be convicted. The elements of criminal responsibility are: 1) committing illegal or criminal acts; 2) for the criminal should be able to be responsible; 3) to have a fault; 4) absence of an excuse. The conclusion from this study is the adoption of Article 372 of the Criminal Code in criminal offenses of embezzlement car rental where the incidence of criminal acts committed tenants for the rented goods belonging to the owner of the rental rights because of misuse or abuse of trust in which the crime of embezzlement are set in the provisions of Article 372 of the Criminal Code.

scholarly journals MEDICAL WORKERS' LIABILITY FOR CRIMES IN THE FIELD OF TRAFFICKING OF NARCOTIC PRODUCTS UNDER ARTICLE 320 OF THE CRIMINAL CODE OF UKRAINE

2021 ◽  
pp. 19-23
Author(s):  
R. Grinyuk ◽  
B. Kindyuk
Keyword(s):  
Health Care ◽  
Criminal Liability ◽  
Criminal Activity ◽  
Criminal Code ◽  
Psychotropic Substances ◽  
Health Care Institutions ◽  
Criminal Offenses ◽  
Medical Institutions ◽  
Wide Range ◽  
Narcotic Drugs

The article considers the peculiarities of criminal liability of employees of health care institutions for violation of the provisions of Art. 320 of the Criminal Code of Ukraine, which consists of two parts, which differ in the ways (forms) of committing criminal offenses and limits of liability. The methodological basis of the study includes logical-semantic method, by which the types of methods (forms) of committing criminal offenses under Art. 320 of the Criminal Code of Ukraine are studied; a systematic approach, on the basis of which the author analyses the sequence of actions of employees of investigative bodies in the investigation of crimes on the grounds of criminal activity provided for in the provisions of this article. It is established that Art. 320 of the Criminal Code of Ukraine consists of two parts and provides for a wide range of criminal offenses, in particular the cultivation of sleeping poppy or hemp; violation of the rules of production, manufacture, storage, accounting, release, distribution, trade, transportation, shipment or use of narcotic drugs, psychotropic substances, their analogues or precursors intended for the production or manufacture of these drugs or substances; theft, misappropriation, extortion of narcotic drugs, psychotropic substances, their analogues or precursors, or their acquisition by fraud or abuse of office by an official, etc. It is shown that the disposition of Art. 320 of the Criminal Code of Ukraine has a blanket nature, which requires specification of its provisions in other regulations, including orders, instructions, rules. It is emphasized that employees of medical institutions and health care institutions must clearly know the content of the resolution of the Cabinet of Ministers № 770 "On approval of the list of narcotic drugs, psychotropic substances and precursors" from 06.06.2000, the order of the Ministry of Health № 188 "On approval of tables of small, large and especially large amounts of narcotic drugs, psychotropic substances and precursors that are in illicit traffic" from 01.08.2000, which will significantly help them to avoid offenses related to drug trafficking. Special attention should by paid to compliance with the rules of storage, transfer, accounting, release, distribution, trade, transportation, as well as the introduction of drug logs. The article also shows the sequence of actions of employees of investigative bodies during crime investigation on grounds of the criminal activity provided by Art. 320 of the Criminal Code of Ukraine.

scholarly journals Concept Of Criminal Liability Of Notary Law In Deed Making Based On Perjury

Jurnal Akta ◽  
2020 ◽  
Vol 6 (4) ◽  
pp. 675
Author(s):  
Ailina Rahmanita Fauzi ◽  
Sri Endah Wahyuningsih
Keyword(s):  
Criminal Responsibility ◽  
Criminal Liability ◽  
Descriptive Analysis ◽  
Secondary Data ◽  
Field Studies ◽  
Criminal Code ◽  
Primary Data ◽  
Element Formulation ◽  
False Information ◽  
Civil Suit

Purpose research These are 1) To analyze the concept of criminal responsibility notary law in the deed that is based on false information. 2) To analyze the legal consequences of the deed notary Based on False Information.The method used by researchers is Empirical Juridical (socio legal research)and specification in this study were included descriptive analysis. Even the sources and types of data in this study are primary data obtained from field studies with an interview with a notary in Grobogan. And secondary data obtained from the study of literature. This study uses qualitative data analysis Based on the results of research that 1) Notaries can not be held criminal liability associated with the manufacture of the deed (partijnakten) based on false information, and can not meet the crime of counterfeiting element formulation in Article 266 paragraph (1) in conjunction with Article 55 paragraph (1) of the Criminal Code. 2) However, the notary can be held criminal liability against relaas deed or deed of officials (ambtelijke akten) if deliberate or careless notary make a fake deed to the detriment others. That made base on notary deed against false information does not in itself result in the deed null and void. The aggrieved party to the existence of the deed as it should file a civil suit to the court to cancel the deed.Keywords : Concept of Law; Criminal Responsibility; Notary; Deed; Specification False

scholarly journals Guilt in compositions of crimes against bases of national safety of Ukraine: problem questions of theory and fixing in a law on criminal responsibility

2019 ◽  
pp. 136-150
Author(s):  
R. Chorniy
Keyword(s):  
National Security ◽  
Criminal Behavior ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Special Part ◽  
Direct Indication ◽  
General Part ◽  
The Law ◽  
Transfer Of Information

The article is devoted to the investigation of forms and types of guilt in the composition of crimes against the basics of national security of Ukraine. The presence of a number of unresolved issues at the theoretical and legal level on this issue actualizes the need for its scientific elaboration and formulation of proposals to improve the provisions of the law on criminal liability. The purpose of the article is to investigate the problematic issues of forms and types of guilt in crimes against the bases of national security of Ukraine, ways of fixing them in the articles of Section I of the Special part of the Criminal Code of Ukraine and to develop sound proposals for their solution based on the provisions of the doctrine of criminal law. The article presents the existing approaches of doctrinal interpretation by scientists of the provisions on wine, its forms and types, through which the research of this feature in the crimes under Art. Art. 109 - 114-1 of the Criminal Code of Ukraine. It is proved that the most reasonable is the psychological concept of guilt, which promotes the insertion of forms and types of guilt in crimes against the basics of national security with a formal composition, the elucidation of forms of guilt in the warehouses of crimes provided by articles of section I of the Special part of the Criminal Code of Ukraine, in which the legislator directly does not say that it is one of the preconditions for the proper qualification of the act committed by the person. It is proved that the basis for the conclusion about the intentional form of guilt is based on: 1) a direct indication of it in the norm of the law (Part 1 of Article 110 and Part 1 of Article 111 of the Criminal Code of Ukraine); 2) indication of the specific purpose or motives of the criminal behavior (Part 1 of Article 109, Note 1, Part 1 and Part 2 of Article 110-2, Article 113, Part 1 of Article 114 and Article 112 of the Criminal Code of Ukraine) ; 3) combination of the above mentioned features in one norm (Part 1 of Article 110 of the Criminal Code of Ukraine); 4) interpretation of terms used in the dispositions of certain articles and / or through the description in the law of the features of the crime (Part 1 of Article 110, Part 2 of Article 109, Part 1 of Article 110, Part 1 of Article 111, Article 112, Article 113, Part 1 of Article 114 and Part 1 of Article 114-1 of the Criminal Code of Ukraine); 5) interpretation of terms used in other articles of the Special (espionage as a part of state treason) or articles of the General part of the Criminal Code of Ukraine (conspiracy to commit the actions provided for in part 1 of Article 109 of the Criminal Code of Ukraine (Article 26 of the Criminal Code of Ukraine), attempted murder state or public figure (Article 112 of the Criminal Code of Ukraine) (part 1 of Article 15 of the Criminal Code of Ukraine); 6) the orientation of socially dangerous acts. The specifics of constructing all these norms testify to the direct intent of the person who committed the respective crime. On this basis it is substantiated that the lack of specification of intent in part 1 of Art. 111 and Part 1 of Art. 110 of the Criminal Code of Ukraine does not contribute to the clarity of the provisions of the Criminal Code in the specified part, and the direct intent in the composition of these crimes is evidenced by: 1) special purpose (Part 1 of Article 110 of the Criminal Code); 2) the terms used in the dispositions of the said articles (“violation of the order… established by the Constitution of Ukraine” (part 1 of Article 110), “transfer of information…, transition to the enemy's side, rendering… assistance in carrying out subversive activities against Ukraine”) ( Part 1 of Article 111); 3) the focus of socially dangerous action. In order to eliminate the ambiguous interpretation of the provisions of Part 1 of Art. 110 and Part 1 of Art. 111 of the Criminal Code it is proposed to amend them accordingly. The forms and type of guilt in the warehouses of crimes with material composition (Part 3 of Article 110, Part 3 and 4 of Article 110-2, Part 2 of Article 114-1 of the Criminal Code of Ukraine) were not clearly reflected in the relevant rules of the law. It is substantiated that the subject's attitude to socially dangerous consequences (deaths of people (h. 3 Art. 110, h. 2 Art. 114-1), other grave consequences (h. 3 Art. 110, h. 4 Art. 110- 2, Part 2 of Article 114-1) Causing considerable property damage (Part 3 of Article 110-2) can be intentional or negligent.

scholarly journals Criminal Liability of Legal Entities under the Laws of the Republic of Slovenia

2018 ◽  
Vol 5 ◽  
pp. 75-80
Author(s):  
Aleksandr V. Fedorov ◽  
Keyword(s):  
Criminal Liability ◽  
Criminal Code ◽  
Security Measures ◽  
Legal Entity ◽  
Criminal Sanctions ◽  
Commercial Activities ◽  
Criminal Offenses ◽  
Conditional Sentence ◽  
The Republic ◽  
Legal Entities

The article is dedicated to review of the laws of the Republic of Slovenia on the criminal liability of legal entities; the main acts are the Special Law on the Liability of Legal Entities for Criminal Offenses of 1999 and the Criminal Code of the Republic of Slovenia. The article reviews statutory resolutions making it possible to review a legal entity as a criminal liability subject; gives a number of persons, which can be brought to criminal liability; focuses on the fact that legal entities can be brought to criminal liability in the Republic of Slovenia for a limited number of acts (crimes) defined by the law; considers criminal sanctions applicable to legal entities: fi ne, forfeiture of property, legal entity liquidation, prohibition to place securities held by a legal entity; reviews the possibility of imposition of a conditional sentence on a legal entity and the security measures applicable to legal entities, including: sentence publication and prohibition to engage in specific commercial activities.

scholarly journals CORPORATE CRIMINAL LIABILITY IN INDONESIA ON THE PERSPECTIVE OF COMPARISON

2017 ◽  
Vol 2 (2) ◽  
pp. 144-154
Author(s):  
Muchammad Chasani
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Justice System ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Offense ◽  
Criminal Legislation ◽  
Corporate Criminal Liability ◽  
Responsibility System

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.

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