scholarly journals OFFENSE - THE ONLY GROUND FOR CRIMINAL LIABILITY

2014 ◽  
Vol 8 (4) ◽  
pp. 149-156
Author(s):  
Laura-Roxana Popoviciu
Keyword(s):  
Rule Of Law ◽  
Social Relations ◽  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
The Rule Of Law ◽  
The Social ◽  
The Law

This study aims to examine the offence as the only ground for criminal liability. Article 15, paragraph 2 of the Criminal code provides that: “offences are the only grounds for criminal liability”, which implies the existence of an act, which is detected by the bodies empowered under the law in the form required by law, and also this principle comes as a guarantee of the person’s freedom because, without committing an act provided for by the law as an offense, the criminal liability cannot exist.The criminal liability is one of the fundamental institutions of the criminal law, together with the institution of the offence and of the sanction, set in the various provisions of the Criminal code.As shown in the Criminal code, in Title II regarding the offence, there is a close interdependence among the three fundamental institutions. The offence, as a dangerous act prohibited by the criminal rule, attracts, by committing it, the criminal liability, and the criminal liability without a sanction would lack the object. It obliges the person who committed an offence to be held accountable for it in front of the judicial bodies, to bide the sanctions provided for by the law, and to execute the sanction that was applied.The correlation is also vice-versa, meaning that the sanction, its implementation, cannot be justified only by the existence of the perpetrator’s criminal liability, and the criminal liability may not be based only on committing an offence.The criminal liability is a form of the judicial liability and it represents the consequence of non-complying with the provision of the criminal rule. Indeed, the achievement of the rule of law, in general, and also the rule of the criminal law implies, from all the law’s recipients, a conduct according to the provisions of the law, for the normal evolution of the social relations.

scholarly journals IMPLIKASI PERUMUSAN DELIK KORUPSI DI DALAM KEBIJAKAN PEMBAHARUAN KITAB UNDANG-UNDANG HUKUM PIDANA

FIAT JUSTISIA ◽  
2016 ◽  
Vol 9 (3) ◽  
Author(s):  
Syaputra Syaputra
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Criminal Code ◽  
Community Life ◽  
Reform Effort ◽  
The Rule Of Law ◽  
Draft Code ◽  
The Law ◽  
Pass Through ◽  
Sense Of Justice

The Criminal Code as a legacy of Dutch colonialism could no longer follow the dynamism of community life. It is too rigid has obliterated the sense of justice which is the goal of the creation of the law itself. This is because the articles of the Criminal Code deemed unsuitable to the development of crime and offenses increasingly complex. In the draft Code of Criminal Law, as one of the reform effort is the formulation of offenses of corruption set out in Chapter XXXII starting from Article 688 to Article 702. With the formulation of the offense of corruption and offenses positions formulated in the draft Criminal Code will disregard the Law Combating Corruption although this law of particular importance because of the substance of the articles draft Criminal Code wants to make corruption has become common crimes and do not pass through handling extraordinary. Law on Corruption Eradication cannot apply even if there is the principle of lex specialis derogat lex generalis, because of the retroactive principle that applies in the draft Criminal Code so that the decision to force the law can still be applied retroactively when the rule of law that new does not regulate the offense of criminal, so punishment can be eliminated.Keywords: Offense Corruption , Corruption , Reform of draft Criminal Code

scholarly journals Criminal Influence and Feasibility of its Preservation in New Criminal Code of Ukraine

2021 ◽  
Vol 7 ◽  
pp. 44-51
Author(s):  
Artem Nikitin
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Working Group ◽  
Scientific Community ◽  
Criminal Liability ◽  
Criminal Code ◽  
Original Form ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Definition Of

The concept of criminal influence, which was introduced into the Criminal Code of Ukraine in June 2020, has been highly criticized by the scientific community and practitioners, among other things, for violation of the principle of legal certainty and the rule of law. This article defines the main disadvantages of the provisions that establish criminal liability for acts related to criminal influence and analyzes the feasibility of preservation of these provisions in their original form in the Criminal Code of Ukraine and the possibility of their transfer to the draft of the new Criminal Code of Ukraine. It is concluded that the mentioned norms should be at least substantially revised, with taking into account comments of the Ukrainian scientists, and cannot be transferred into the new criminal law as they are currently defined. Moreover, introduction of specific amendments to other laws is also required in this regard.The Working Group on the development of criminal law, as the author of the draft of the new Criminal Code, reasonably refused from the existing concept of the criminal influence. At the same time, they defined criminally punishable acts, which can be considered as a certain equivalent of the criminal influence (socalled “criminal leadership”). Provisions developed by the Working Group differ from the current by the more precise definition of specific actions, which constitute corpus delicti of criminal leadership, avoidance of jargon formulations, decrease of the terms of imprisonment for committing the relevant crimes, and diversification of criminal legal measures that can be applied to offender besides the punishment. In general, it appears that the Working Group avoided the main mistakes which are present in the current legislation. However, it is too early to draw conclusions regarding the acceptability of the proposed article of the new criminal law. Only after the draft of the new Criminal Code of Ukraine has been finished and its provisions can be analyzed altogether, final conclusions regarding the mentioned norms can be drawn.

LEGAL ESSENCE OF ANCIENT PROVERBS AND SAYS AND THEIR SOCIAL SIGNIFICANCE

2020 ◽  
Author(s):  
Angela Dranishnikova ◽  
Ivan Semenov
Keyword(s):  
Public Sphere ◽  
Rule Of Law ◽  
Social Significance ◽  
The Rule Of Law ◽  
The Public ◽  
Moral Standards ◽  
The Social ◽  
The Law ◽  
The Public Sphere ◽  
Status Position

The national legal system is determined by traditional elements characterizing the culture and customs that exist in the social environment in the form of moral standards and the law. However, the attitude of the population to the letter of the law, as a rule, initially contains negative properties in order to preserve personal freedom, status, position. Therefore, to solve pressing problems of rooting in the minds of society of the elementary foundations of the initial order, and then the rule of law in the public sphere, proverbs and sayings were developed that in essence contained legal educational criteria.

Die Entwicklung des Strafrechts der Ukraine

2020 ◽  
Vol 66 (3) ◽  
pp. 380-396
Author(s):  
Rainer Birke
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Law ◽  
Penal Code ◽  
Science And Society ◽  
The Rule Of Law ◽  
Law System ◽  
The Law ◽  
Simplified Procedure ◽  
Procedural Rights

In 2001, a new penal code was adopted in Ukraine after a comprehensive discussion in politics, legal science and society, replacing a codification of the Soviet era dating back to 1960, obviously unsuitable for the new realities. The new penal code of 2001 has been changed many times since then. This also applies to the criminal law provisions against corruption, evaluated and commended by GRECO. However, there is criticism of the criminal law system in Ukraine. A large number of the issues have little or nothing to do with the text of the penal code itself, but with deficits in the application of the law and the resulting loss of confidence in the activities of the law enforcement authorities. The judiciary is said to have a significant corruption problem and is significantly overloaded. The latter is to be counteracted by the introduction of the class of misdemeanor (“kryminalnyj prostupok”) in 2019 that can be investigated in a simplified procedure, which has been criticized, inter alia, because it bears the risk of the loss of quality and possibly infringes procedural rights. Also in 2019, the work on a once again completely new codification of the penal code was commenced, which is not entirely surprising in view to the existing criticism of manual errors or inadequacies of the recent code. It is to be hoped that Ukraine, with the existing will and the necessary strength, will succeed in the creation of a criminal law system that is fully in compliance with the rule of law and that a penal code will be drafted that finally finds full recognition in the society.

The Rule of Law

2018 ◽  
Author(s):  
N. W. Barber
Keyword(s):  
Social Context ◽  
Rule Of Law ◽  
The State ◽  
Successful Operation ◽  
The Rule Of Law ◽  
The Social ◽  
The Law

The rule of law requires that law make the differences it purports to make; linking the formal demands of law and the reality of the rules that structure power within a community. The chapter begins by outlining the rule of law. There are two aspects to the principle: first, the rule of law requires that laws be expressed in a way that enable people to obey the law; secondly, the rule of law requires that the social context is such that people are led to obey these rules. The second part of the chapter examines the connection between the rule of law and the state. First, it will be contended that states need to comply—to a degree—with the rule of law in order to exist. Secondly, in societies such as ours, non-state legal orders require the existence of the state, and state legal orders, for their successful operation.

scholarly journals Exixtence of Indonesian Advocate Profession

2018 ◽  
Vol 7 (3.21) ◽  
pp. 317
Author(s):  
M Zamroni ◽  
. .
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Code ◽  
Pecking Order ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Before And After ◽  
Law Enforcement Officials ◽  
The Law ◽  
The Republic

Hope to have legislation that specifically set while an umbrella in running materialize advocate profession, lawyers are more confident in addition to other law enforcement officials, such as judges, prosecutors and police, as well as respected as an equal partner in the law enforcement process. But the big question is how the existence of the profession of advocate Indonesia before and after the enlawment of Act Number 18 of 2003 concerning the Advocate, as well as any constraints that occur in their implementation. The rule of law relating to the profession of advocate before the enLawment of Act Number 18 of 2003 concerning The Advocate, scattered in various laws, such as Act Number 1 of 1946 on the Law of Criminal Code, Act Number 1 of 1950 on the Supreme Court, Emergency Act Number 1 of 1951 governing temporary measures to organize the unity of the pecking order and civil court events, and Herziene Indlandsch Regalement (HIR). Before the release of Act Number 18 of 2003 concerning Advocates, advocate the use of the term in prLawice there has been no standard for the profession. In various provisions of the legislation of any inconsistency pr. For example Act Number 14 of 1970, as has been replaced by Act Number 35 of 1999, and was replaced again by Act Number 4 of 2004 as well as the latter is replaced by Act Number 48 of 2009, regarding the power of Justice, to use the term legal aid and lawyers. Birth of the Act of the Republic of Indonesia Number 18 of 2003 concerning The Advocate is the expectation of a long delayed during the 58 years since the independence of the Republic of Indonesia, the laws governing the profession of advocate a free, independent and responsible for the implementation of a judicial honest, fair, and legal certainty for all seekers of justice in upholding the law, truth, justice, and human rights.  

scholarly journals PEMBENTUKAN HUKUM DALAM PERSPEKTIF PEMBARUAN HUKUM

2012 ◽  
Vol 1 (3) ◽  
pp. 307
Author(s):  
Zainal Arifin Hoesein
Keyword(s):  
Rule Of Law ◽  
Social Economic ◽  
Methodological Approach ◽  
Legal Reform ◽  
The Rule Of Law ◽  
The Public ◽  
The People ◽  
The Social ◽  
The Law ◽  
Methodological Aspects

<p>Materi muatan hukum selayaknya mampu menangkap aspirasi masyarakat yang tumbuh dan berkembang bukan hanya yang bersifat kekinian, melainkan sebagai acuan dalam mengan Ɵ sipasi perkembangan sosial, ekonomi, budaya dan poli Ɵ k di masa depan. Norma hukum pada dasarnya inheren dengan nilai-nilai yang diyakini oleh masyarakat, tetapi daya kekuatan keberlakuan hukum, Ɵ dak dapat melepaskan diri dari kelembagaan kekuasaan, sehingga hukum, masyarakat dan kekuasaan merupakan unsur dari suatu tatanan masyarakat. Oleh karena itu, Hukum Ɵ dak sekedar dipahami sebagai norma yang menjamin kepasa Ɵ an dan keadilan tetapi juga harus dilihat dari perspek Ɵ f kemanfaatan. Oleh karena itu, maka pembentukan hukum dalam perspek Ɵ f pembaruan hukum harus difokuskan pada dua hal yaitu, sistem hukum dan budaya hukum. Tulisan ini akan membahas bagaimana idealisasi peraturan perundang-undangan; bagaimana fungsi peraturan perundang-undangan dalam pembangunan hukum; dan bagaimana pendekatan metodologis terhadap pembentukan hukum. Dari berbagai pembahasan tersebut disimpulkan bahwa pembentukan hukum dalam perspek Ɵ f pembaharuan hukum, di samping harus memperha Ɵ kan aspek metodologis, juga harus merujuk dan meletakkan norma hukum dalam kesatuan harmoni ver Ɵ kal dengan aspek teologis, ontologis, posi Ɵ vis Ɵ k dan aspek fungsional dari suatu norma hukum.</p><p>The substance of the law should be able to capture the aspira Ɵ ons of the people who grow and develop not only be present, but as a reference in an Ɵ cipa Ɵ on of the social, economic, cultural and poli Ɵ cal future. The rule of law is essen Ɵ ally inherent to the values that are believed by the public, but the validity of the power of the law, not to break away from the ins Ɵ tu Ɵ onal power, so the law, society and power is an element of a society. Therefore, the law does not merely understood as a norm that ensures certainty and jus Ɵ ce but also to be seen from the perspec Ɵ ve of expediency. Therefore, the legal establishment in the perspec Ɵ ve of legal reform should be focused on two things, namely, the legal system and legal culture. This paper will discuss how the idealiza Ɵ on of laws, how the laws func Ɵ on in the development of the law, and how the methodological approach to the legal establishment. It was concluded that the forma Ɵ on of the law in the perspec Ɵ ve of legal reform, in addi Ɵ on must pay a Ʃ en Ɵ on to methodological aspects, should also refer to and put the rule of law in the unity of ver Ɵ cal harmony with aspects of the theological, ontological, posi Ɵ vist and func Ɵ onal aspects of the rule of law.</p>

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 The goals of criminal punishment as a reflection of modern criminal policy

2020 ◽  
Vol 14 (3) ◽  
pp. 324-330
Author(s):  
V.V. Popov ◽  
◽  
S.M. Smolev ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Policy ◽  
Criminal Code ◽  
Practical Implementation ◽  
Criminal Punishment ◽  
The Social ◽  
The Russian Federation ◽  
Criminal Legislation

The presented study is devoted to the issues of disclosing the content of the goals of criminal punishment, analyzing the possibilities of their actual achievement in the practical implementation of criminal punishment, determining the political and legal significance of the goals of criminal punishment indicated in the criminal legislation. The purpose of punishment as a definition of criminal legislation was formed relatively recently, despite the fact that theories of criminal punishment and the purposes of its application began to form long before our era. These doctrinal teachings, in essence, boil down to defining two diametrically opposed goals of criminal punishment: retribution and prevention. The state, on the other hand, determines the priority of one or another goal of the punishment assigned for the commission of a crime. The criminal policy of Russia as a whole is focused on mitigating the criminal law impact on the offender. One of the manifestations of this direction is the officially declared humanization of the current criminal legislation of the Russian Federation. However, over the course of several years, the announced “humanization of criminal legislation” has followed the path of amending and supplementing the Criminal Code of the Russian Federation: introducing additional opportunities for exemption from criminal liability and punishment, reducing the limits of punishments specified in the sanctions of articles of the Special Part of the Criminal Code of the Russian Federation, and including in the system of criminal punishments of types of measures that do not imply isolation from society. At the same time the goals of criminal punishment are not legally revised, although the need for such a decision has already matured. Based on consideration of the opinions expressed in the scientific literature regarding the essence of those listed in Part 2 of Art. 43 of the Criminal Code of the Russian Federation, the goals of punishment are determined that each of them is subject to reasonable criticism in view of the abstract description or the impossibility of achieving in the process of law enforcement (criminal and penal) activities. This circumstance gives rise to the need to revise the content of the goals of criminal punishment and to determine one priority goal that meets the needs of modern Russian criminal policy. According to the results of the study the conclusion is substantiated that the only purpose of criminal punishment can be considered to ensure proportionality between the severity of the punishment imposed and the social danger (harmfulness) of the crime committed. This approach to determining the purpose of criminal punishment is fully consistent with the trends of modern criminal policy in Russia, since it does not allow the use of measures, the severity of which, in terms of the amount of deprivation and legal restrictions, clearly exceeds the social danger of the committed act. In addition, it is proportionality, not prevention, that underlies justice – one of the fundamental principles of criminal law.

The Irrelevance of Motive and the Rule of Law

2017 ◽  
Vol 20 (3) ◽  
pp. 433-464 ◽  
Author(s):  
Shachar Eldar ◽  
Elkana Laist
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Criminal Liability ◽  
The Rule Of Law ◽  
Legal Thinking ◽  
The Common

One of the maxims of criminal law orthodoxy states that a defendant’s motive for offending, be it good or bad, should have no weight in assessing his or her criminal liability—although it may rightfully bear on the punishment imposed. Known as the “irrelevance of motive principle,” this idea owes much of its popular stature in legal thinking to arguments that draw on the notion of the rule of law. It is said that allowing defendants’ motives to generate or negate their criminal liability would undermine the state’s authority in defining the contours of crime. The article identifies and critically examines three streams of such arguments, and these in turn lead to three findings. First, each manifestation of the rule of law argument defends a somewhat different conception of the irrelevance principle; this means that despite the common allusion to the irrelevance principle, there is no singular principle, but instead several variants of the norm are at play. Secondly, rule of law arguments fail to sustain any meaningful notion of the irrelevance principle. Finally, there exists a sphere of instances where the careful application of motives to criminal directives may advance the rule of law by infusing legislation with added clarity and richness.

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