scholarly journals THE EXERCISE OF A RIGHT OR THE CARYING OUT OF AN OBLIGATION – JUSTIFIED CAUSES REINTRODUCED INTO THE NEW ROMANIAN CRIMINAL CODE

2014 ◽  
Vol 8 (4) ◽  
pp. 98-102
Author(s):  
Liviu-Alexandru Lascu
Keyword(s):  
Criminal Liability ◽  
Competent Authority ◽  
Criminal Code ◽  
The Other ◽  
Mens Rea ◽  
History Of ◽  
Question Under Discussion ◽  
Mental Element ◽  
The Law

This study aims to analyze an old concept, namely, the exercise of a right or the performance of an obligation as one of the justified causes, reintroduced into the new Romanian Criminal Code after more than 40 years. Even having a long history of existence within the Romanian criminal codes adopted in 1864 and 1936, during the communist era, once adopted the Romanian Criminal Code in 1968, in force until 1-st of February, 2014, this justified cause had been removed. At the time, the communist legislator considered as being useless to mention it among the other causes which can remove the criminal liability. The doctrine of the time argued that a criminal fact committed when carrying out an order given by the law or the competent authority didn’t meet the criteria of being a crime, because it lacks the mental element, mens rea. The practice of nowadays demonstrated, the question under discussion is not so easy, the lack of mens rea cannot be always raised as a defense and therefore, the legislator realized the necessity of reintroducing the exercise of a right or the performance of an obligation as one of the justified causes.    

scholarly journals The Rule against Multiple Fictions

1969 ◽  
pp. 160
Author(s):  
Bruce Ziff
Keyword(s):  
Criminal Liability ◽  
Criminal Code ◽  
Mens Rea ◽  
Basic Principles ◽  
The Law

The author explores aspects of the constructive mens rea found in the Criminal Code, primarily as these relate to accomplices to murder. By examining both basic principles of criminal liability in Canada and the rationale of constructive mens rea, the author seeks to expose the harshness of the current rules, which, when applied to accomplices, tend to compound constructive mens rea provisions. In result, the author proposes that the law adopt a 'rule against multiple fictions', designed to preclude that compounding.

Dukungan Legislatif Dalam RUU KUHP Untuk Pemberantasan Korupsi: Pro dan Kontra Tindak Pidana Korupsi dalam RUU KUHPDukungan Legislatif Dalam RUU KUHP Untuk Pemberantasan Korupsi: Pro dan Kontra Tindak Pidana Korupsi dalam RUU KUHP

Jurnal Hukum ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 1721
Author(s):  
Muhammad Aziz Syamsuddin
Keyword(s):  
United Nations ◽  
Criminal Code ◽  
The Other ◽  
Deterrent Effect ◽  
United Nations Convention ◽  
Legislative Support ◽  
The Law ◽  
Shared Commitment ◽  
Crime Of Corruption

AbstractThe spirit of the eradication of corruption is running continually. Various efforts or strategies were arranged to sharpen the power of corruptions’ eradication. One of the strategies is legislation support or comprehend and effective legislation. It was proved by the enactment of Law No. 28 of 1999 on State Implementation of Clean and Free from Corruption, Collusion and Nepotism and also Law No. 31 of 1999 as amended by Law No. 20 of 2001 on Corruption Eradication. The other related legislation such as Law No. 30 of 2002 on Corruption Eradication Commission and the Law 8 of 2010 on the Prevention and Eradication of Money Laundering.  Those Supporting legislations show that there is a shared commitment to eradicate corruption. Indonesia has also ratified the UNCAC (United Nations Convention against Corruption) by Law No. 7 of 2006 on the UN Convention (United Nations) Anti-Corruption. Support legislation is expected to provide a deterrent effect for offenders and protecting the rights of citizens has a whole. Keywords: Legislative Support, Criminal Code Draft, Eradication, Crime of Corruption, Pros and Cons    AbstrakSemangat pemberantasan tindak pidana korupsi terus bergulir. Berbagai upaya atau strategi dibangun untuk mempertajam kekuatan pemberantasan korupsi. Salah satunya adalah dengan dukungan legislasi atau peraturan perundang-undangan yang komprehensif dan efektif. Dibuktikan dengan lahirnya Undang-Undang No. 28 Tahun 1999 tentang Penyelenggaraan Negara yang Bersih dan Bebas dari Korupsi, Kolusi, dan Nepotisme dan Undang-Undang No. 31 Tahun 1999 sebagaimana diubah dengan Undang-Undang No. 20 Tahun 2001 tentang Pemberantasan Tindak Pidana Korupsi. Adapun undang-undang terkait lainnya seperti UU No. 30 Tahun 2002 tentang Komisi Pemberantasan Tindak Pidana Korupsi dan UU No. 8 Tahun 2010 tentang Pencegahan dan Pemberantasan Tindak Pidana Pencucian Uang. Dukungan legislasi tersebut menunjukkan adanya komitmen bersama untuk memberantas tindak pidana korupsi. Indonesia juga  telah meratifikasi UNCAC (United Nations Convention Against Corruption) dengan UU No. 7 Tahun 2006 tentang Konvensi PBB (Perserikatan Bangsa-Bangsa) Anti Korupsi. Dukungan legislasi ini diharapkan memberikan efek jera bagi pelaku sekaligus melindungi hak-hak warga negara secara keseluruhan. Kata Kunci: Dukungan Legislatif, RUU KUHP, Pemberantasan, Tindak Pidana Korupsi, Pro dan Kontra

MAIN SPECIFICATIONS OF ASSESSING ACTIVITIES OF MINOR IMPORTANCE OF IN MODERN CRIMINAL LAW

Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 83-95
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Case Law ◽  
Criminal Code ◽  
The Other ◽  
European Countries ◽  
Minor Importance ◽  
Detailed Review

The research includes the full and the detailed overview of assessing activities of minor importance in Georgian Criminal Law. The Article 7 of the Criminal Code of Georgia states the following: a crime shall not be an action that, although formally containing the signs of a crime, has not produced, for minor importance, the prejudice that would require criminal liability of its perpetrator, or has not created the risk of such harm. The research includes the main criteria of defining activities as activities of minor importance. The detailed review of Georgian case law is also introduced, as well as, legislation, judicial literature and experience of the other European countries.

scholarly journals Can experiments on animals constitute a criminal offence of cruelty to animals?

2014 ◽  
Vol 66 (4) ◽  
pp. 1339-1344
Author(s):  
Branislav Ristivojevic ◽  
Tatjana Bugarski
Keyword(s):  
Animal Welfare ◽  
Criminal Code ◽  
Legal Rule ◽  
The Other ◽  
European Convention ◽  
Criminal Prosecution ◽  
Criminal Offence ◽  
Experimental Animals ◽  
The Law ◽  
Cruelty To Animals

The criminal offence ?killing and torturing animals? under Article 269 of the Criminal Code says that it can be committed only ?contrary to regulations?. The regulations governing the treatment of experimental animals are the Animal Welfare Law from 2009 and the Law on the Ratification of the European Convention for the Protection of Vertebrate Animals used for experimental and other scientific purposes amended by the Protocol of amendment to the European Convention for the Protection of Vertebrate Animals used for experimental and other scientific purposes from 2010. The first one imposes numerous obligations and introduces numerous prohibitions in the treatment of experimental animals, which at first sight make the possibilities of committing this criminal offence greater. The other law does not contain most of the prohibitions and restrictions that are included in the Animal Welfare Law. Thanks to a legal rule which says that a later law regulating the same subject replaces the former one (lex posterior derogate legi priori) and the aforementioned unconstitutionality of many provisions of the Animal Welfare Law, researchers and teachers in Serbia are not in particular danger of criminal prosecution.

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 The History of the Development of the French Laws on Criminal Liability of Legal Entities

2018 ◽  
Vol 1 ◽  
pp. 46-56
Author(s):  
Aleksandr V. Fedorov ◽  
◽  
Mikhail V. Krichevtsev ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Legal Regulation ◽  
Economic Crime ◽  
Penal Code ◽  
Criminal Prosecution ◽  
History Of ◽  
The Law ◽  
Legal Entities

The article reviews the history of development of French laws on criminal liability of legal entities. The authors note that the institution of criminal liability of legal entities (collective criminal liability) dates back to the ancient times and has been forming in the French territory for a long time. Initially, it was established in the acts on collective liability residents of certain territories, in particular, in the laws of the Salian Franks. This institution was inherited from the Franks by the law of the medieval France, and got transferred from the medieval period to the French criminal law of the modern period. The article reviews the laws of King Louis XIV as an example of establishment of collective criminal liability: the Criminal Ordinance of 1670 and the Ordinances on Combating Vagrancy and Goods Smuggling of 1706 and 1711. For the first time ever, one can study the Russian translation of the collective criminal liability provisions of the said laws. The authors state that although the legal traditions of collective liability establishment were interrupted by the transformations caused by the French Revolution of 1789 to 1794, criminal liability of legal entities remained in Article 428 of the French Penal Code of 1810 as a remnant of the past and was abolished only as late as in 1957. The publication draws attention to the fact that the criminal law codification process was not finished in France, and some laws stipulating criminal liability of legal entities were in effect in addition to the French Penal Code of 1810: the Law on the Separation of Church and State of December 9, 1905; the Law of January 14, 1933; the Law on Maritime Trade of July 19, 1934; the Ordinance on Criminal Prosecution of the Press Institutions Cooperating with Enemies during World War II of May 5, 1945. The authors describe the role of the Nuremberg Trials and the documents of the Council of Europe in the establishment of the French laws on criminal liability of legal entities, in particular, Resolution (77) 28 On the Contribution of Criminal Law to the Protection of the Environment, Recommendation No. R (81) 12 On Economic Crime, the Recommendation No. R (82) 15 On the Role of Criminal Law in Consumer Protection and Recommendation No. (88) 18 of the Committee of Ministers to Member States Concerning Liability of Enterprises Having Legal Personality for Offences Committed in the Exercise of Their Activities. The authors conclude that the introduction of the institution of criminal liability of legal entities is based on objective conditions and that research of the history of establishment of the laws on collective liability is of great importance for understanding of the modern legal regulation of the issues of criminal liability of legal entities.

Cyber crime, computer crime or cyber offense? The analysis of the features of a terminology application

2021 ◽  
pp. 85-90
Author(s):  
R. Baranenko
Keyword(s):  
Computer Networks ◽  
Cyber Security ◽  
Criminal Liability ◽  
Computer Systems ◽  
Criminal Code ◽  
Computer Crime ◽  
International Treaties ◽  
Computer Data ◽  
Criminal Offenses ◽  
The Law

Today cybercrime and computer terrorism are identified as one of the threats to Ukraine’s national security in the information sphere. Cybersecurity measures include achieving and maintaining security features in the resources of an institution or users, aimed at preventing relevant cyber threats. Cybercrime is a set of criminal offenses committed in cyberspace by computer systems or by using computer networks and other means of access to cyberspace, within computer systems or networks, as well as against computer systems, computer networks and computer data, has been widely developed. The paper considers such terms as «computer crime», «information crime», «crime in the field of computer information», «crimes in the field of information technology». Scientific works of domestic and foreign researchers on the issues of countering cybercrime are analyzed. The connection of the concept of «cybersecurity» with the terms «cybercrime», «computer crime» and «cybercrime» the concepts of «cybercrime» was given. The difference in the interpretation of the concepts «cybersecurity» and «information security» was considered. The definitions of «cybercrime», «computer crime» and «cyber offense» were given for comparison. Their main features were considered. The concept of «computer victimhood» and its components were considered. With the introduction of the institute of criminal offenses in the national criminal law, the terms «cybercrime» and «computer crime» should lose their relevance, as evidenced by the change of title of Chapter XVI of the Criminal Code of Ukraine to «Criminal offenses in the use of electronic computing machines (computers), systems and computer networks and telecommunications networks». Therefore, instead, we can recommend the use of the term «cyber offense», which we propose to understand as «socially dangerous criminal act in cyberspace and/or using it, liability for which is provided by the law of Ukraine on criminal liability and/or which is recognized as a criminal offense by international treaties of Ukraine, and cybercrime is a set of cyber offences». It is clear that this will require the introduction of appropriate terminological changes in the Law of Ukraine «On the Basic Principles of Cyber Security of Ukraine» and other regulations.

4. Negligence and strict liability

2021 ◽  
pp. 126-150
Author(s):  
Michael J. Allen ◽  
Ian Edwards
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Liability ◽  
Strict Liability ◽  
European Convention ◽  
Mens Rea ◽  
The Law ◽  
Sexual Services

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.

4. Interaction of actus reus and mens rea

2019 ◽  
pp. 127-145
Author(s):  
John Child ◽  
David Ormerod
Keyword(s):  
Correspondence Principle ◽  
Criminal Liability ◽  
Legal Reform ◽  
Mens Rea ◽  
Problem Type ◽  
Actus Reus ◽  
The Law

This chapter focuses on the interaction between actus reus and mens rea in proving criminal liability. It first considers how actus reus and mens rea relate to one another within the structure of an offence before discussing the issues that also emerge when applying offence requirements to a set of facts. As an example, it explains how every element (conduct, circumstance, and result) of an offence includes an actus reus requirement and a corresponding mens rea requirement. It also examines the correspondence principle and the doctrine of transferred malice, along with the coincidence principle. Finally, it outlines potential options for legal reform and a structure for analysing the actus reus and mens rea of an offence when applying the law in problem-type questions. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.

25. Intoxication

2017 ◽  
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Mens Rea ◽  
State Of Mind ◽  
Mental Element ◽  
The Law ◽  
Definition Of

This chapter discusses the law on offences involving intoxication. It distinguishes between voluntary and involuntary intoxication, and between ‘specific’ and ‘basic’ intent. Cases are presented to show that state of mind is both a necessary element in the definition of an offence as well as in some defences. Just as intoxication may cause a person to lack the mens rea of an offence so it may cause him to have the necessary mental element of a defence.

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