scholarly journals MISTAKEN IDENTITY OF THE VICTIM IN CRIMINAL LAW

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Shannon Hoctor
Keyword(s):  
Criminal Law ◽  
Case Law ◽  
Legal Rules ◽  
South Africans ◽  
Mistaken Identity ◽  
Legal Perspective ◽  
Legal Position ◽  
The Subject ◽  
Point Of Departure ◽  
Dolus Eventualis

Along with the drama and pathos that the trial of Oscar Pistorius brought to a multitude of South Africans, who devotedly followed the events (and dissections of events) with great dedication a few years ago, the case also highlighted and publicized a number of legal rules and doctrines. Who would have thought, for example, that the term of art dolus eventualis would emerge as the subject of such quizzical interest for so many?Other issues which emerged are no less interesting from a legal perspective, but are admittedly of much more narrow and parochial interest, being limited to those who are required to apply substantive criminal law, whether in the courts or in the classroom. One of these is the error in obiecto notion (the spelling “obiecto”, rather than “objecto” which more typically appears in the textbooks and the case law, is more correct, although, both spelling forms will be used below, as needs be). The word “notion” is carefully selected, since describing error in obiecto as a rule, has been firmly and correctly dismissed as incorrect by Snyman (Hoctor Snyman’s Criminal Law 7ed (2020) 171): “[It] is not the description of a legal rule; it merely describes a certain type of factual situation.” Burchell’s point of departure is even more stark: “[T]he so-called error in objecto rule has uncertain, dubious origins and reference to it, even as a description of a factual predicament, should be excluded from the lawyers’ lexicon”. Phelps uses the phrase “little-known principle” to describe this “factual predicament”. The author in Kemp, Walker, Palmer, Baqwa, Gevers, Leslie and Steynberg Criminal Law in South Africa 3ed (2018) 263 does not use any nomenclature when discussing the legal position arising out of this factual situation.

scholarly journals Cyber Attacks, Information Attacks, and Postmodern Warfare

2017 ◽  
Vol 10 (1) ◽  
pp. 63-89 ◽  
Author(s):  
Jozef Valuch ◽  
Tomáš Gábriš ◽  
Ondrej Hamuľák
Keyword(s):  
International Law ◽  
Subject Matter ◽  
Case Law ◽  
Cyber Attacks ◽  
Armed Conflicts ◽  
Information Warfare ◽  
Law Of War ◽  
Legal Rules ◽  
The Subject ◽  
The Relationship

Abstract The aim of this paper is to evaluate and differentiate between the phenomena of cyberwarfare and information warfare, as manifestations of what we perceive as postmodern warfare. We describe and analyse the current examples of the use the postmodern warfare and the reactions of states and international bodies to these phenomena. The subject matter of this paper is the relationship between new types of postmodern conflicts and the law of armed conflicts (law of war). Based on ICJ case law, it is clear that under current legal rules of international law of war, cyber attacks as well as information attacks (often performed in the cyberspace as well) can only be perceived as “war” if executed in addition to classical kinetic warfare, which is often not the case. In most cases perceived “only” as a non-linear warfare (postmodern conflict), this practice nevertheless must be condemned as conduct contrary to the principles of international law and (possibly) a crime under national laws, unless this type of conduct will be recognized by the international community as a “war” proper, in its new, postmodern sense.

The issues of counteracting with resurgence of crimes: past and present trends

2019 ◽  
pp. 49-60
Author(s):  
Николай Алексеевич Коломытцев
Keyword(s):  
Case Law ◽  
Recidivism Rates ◽  
Legal Rules ◽  
Law Enforcement Officials ◽  
Crime Detection ◽  
The Subject ◽  
Judicial Errors ◽  
High Level ◽  
Detention Facilities

Наличие значительного уровня рецидива в стране напрямую связано с весьма низкой (до 47 %) раскрываемостью преступлений. Кроме того, высокий уровень рецидива преступлений свидетельствует о том, что применяемое к осужденным уголовное наказание в виде лишения свободы не всегда оказывает на них должное воспитательное и принудительное воздействие. Эта ситуация обусловлена недостатками деятельности администрации учреждений уголовно-исполнительной системы. Пробелы в законодательстве, ошибки в избрании судом вида и срока наказания сказываются на его эффективности. Рост рецидива преступлений связан и с неблагополучной жизненной ситуацией, в которой часто оказываются освобожденные от отбывания наказания. Все сказанное убедительно подтверждает актуальность и научную новизну данной работы. Целью написания данной статьи является попытка определения комплексной реализации борьбы с рецидивом преступлений. Предмет изучения рецидива преступлений определяется важностью существующих ценностей, причиняемым им ущербом и общественным резонансом в отношении этого явления. Методологическую основу работу составил метод познания, общенаучные и частнонаучные методы изучения. При этом использовались труды отечественных и зарубежных правоведов. В статье автор рассматривает историко-правовой, криминологический, уголовно-правовой и уголовно-исполнительный аспекты рецидива преступлений, анализирует законодательство и судебную практику за длительное время. Приводится понятие указанного социально-правового явления, предлагаются определенные направления его предупреждения. Статья представляет интерес для курсантов, слушателей, студентов юридических вузов, преподавателей и сотрудников правоохранительных органов. The high level of relapse in our country depends on the low crime detection rate (less than 47 %). In this context, ineffective penalization measures for offenders in prison can have an impact on recidivism rates. This fact revealed serious deficiencies in the administration of detention facilities. Gaps in legislation, judicial errors in the sentencing proceeds, incorrect type of punishment and penalty negatively affect the itseffectiveness. Difficult circumstances for discharged prisoners might cause the growth of resurgence. Thus, this article devoted to the topical and innovative issue. The aim of this article is to combat and prevent criminal activities in the area of resurgence. The subject matter of recidivism is determinated by the importance of social values, the harm inflicted, and public outcry provoked with this phenomenon. A methodological framework for this research includes the cognition method, common and private methods. The author used native and foreign scholarly writings. The author researches a historical and legal, criminological, criminal and penal reviews of relapse. He analysis legal rules and case law over a long term. “Resurgence of crimes” is defined. Some means of relapse prevention are supposed. The article might be meaningful for the students and tutors of law faculties, and also for the law enforcement officials.

scholarly journals Powództwo przeciw dyskryminacji w Ustawie z dnia 3 grudnia 2010 r. o wdrożeniu niektórych przepisów Unii Europejskiej w zakresie równego traktowania

2019 ◽  
Author(s):  
Paweł Śmiałek
Keyword(s):  
European Union ◽  
Case Law ◽  
Equal Treatment ◽  
The European Union ◽  
Provision Of Services ◽  
Legal Position ◽  
The Subject ◽  
Legislative Activity ◽  
The Right ◽  
Legal Grounds

Discrimination is a phenomenon that has been existing in our society for many years. The main cause of increased legislative activity in European countries is the action of the European Union, which has issued a number of directives dealing with the problem of discrimination. Poland, as a member of the European Union, was obliged to implement anti-discrimination directives. The legislator did this by enacting the Act of 3 December 2010 on the implementation of certain European Union regulations on equal treatment (hereafter: the equality statute). The equality statue was a good step towards combating discrimination in areas such as the provision of services or capital fl ow. The legislator has also pointed to discriminatory features, including race, age, disability, sex, or sexual orientation. These features cannot serve as a basis for diff erentiating the legal position of legal entities. In carrying out a comprehensive analysis of the subject matter, the study presented in this article covered: the normative grounds of an anti-discrimination lawsuit, the right to compensation, which deviates signifi cantly from the defi nition set out in Article 361 of the Civ il Code, the substantive and legal grounds for action, the principles and the procedure for claiming compensation. The article also deals with the eff ectiveness of the application of the measure in the jurisprudence. To that end, the study examined the case law of common courts dealing with the facts related to the equality law. The Ombudsman and other anti-discrimination aut horities have also been contacted for information on the use of this measure. The paper identifi es as well, the potential solutions aimed at increasing the eff ectiveness and frequency of the use of anti-discrimination lawsuits before Polish common courts.

Criminal Law

2019 ◽  
Author(s):  
Michael Allen ◽  
Ian Edwards
Keyword(s):  
Criminal Law ◽  
Strict Liability ◽  
Case Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
The Past ◽  
Actus Reus ◽  
The Subject ◽  
The Law

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. Textbook on Criminal Law has been providing students of criminal law with a readable and reliable introduction to the subject for the past 28 years. This is the fifteenth edition, which has been updated to include all of the latest case law and statutory changes. Topics covered include actus reus, mens rea, negligence and strict liability, and capacity and incapacitating conditions. It also examines general defences, parties to crime, inchoate offences, and homicide. Towards the end of the book chapters consider non-fatal offences, sexual offences, offences under the Theft Acts 1968 and 1978, fraud, and criminal damage.

Claiming Maintenance from Children: The Malaysian Legal Perspective

2014 ◽  
Vol 2 (1) ◽  
pp. 11-17
Author(s):  
Syuhaeda Aeni Mat Ali ◽  
Azhani Arshad
Keyword(s):  
Financial Support ◽  
Case Law ◽  
Legal Analysis ◽  
Elderly Parents ◽  
Legislative Reform ◽  
Legal Perspective ◽  
Legal Position ◽  
Paper Review ◽  
Substantive Law ◽  
Secondary Materials

Objective - This paper aims to examine the rights and legal position on maintenance of parents in Malaysia, and further to determine whether there is a need to enact laws to enforce children to care and provide maintenance for their aging and/ or disabled parents. Methodology/Technique - Research methodologies applied are a legal analysis of the primary and secondary materials and comparative study. Analysis of the data will be done via examining the existing materials including statutory provisions, case law and other legal and non-legal literatures relating to the law of maintenance. In discussing on the need to legislate such law, this study will look at Singapore and India which have enacted legislation governing maintenance of parents. Findings - The analysis reveals thatthere is no substantive law in Malaysia which imposes upon the children the responsibility to maintain the aged and incapacitated parents. Therefore, serious consideration should be given to obligate the children to maintain and provide financial support to their aged and elderly parents. Novelty - This paper highlights the need for legislative reform in enforcing children to care and provide maintenance for their aged and/or disabled parents; whilst prior studies mainly emphasis the matter from social perspective. Type of Paper: Review Keywords : Maintenance of parents; financial support; children; civil and Shariah law

scholarly journals THE PRECAUTIONARY PRINCIPLE IN THE BRAZILIAN ENVIRONMENTAL LAW

2016 ◽  
Vol 13 (27) ◽  
pp. 63-88
Author(s):  
Paulo de Bessa Antunes
Keyword(s):  
Precautionary Principle ◽  
Environmental Law ◽  
Case Law ◽  
Operational Definition ◽  
Legal Rules ◽  
The Precautionary Principle ◽  
Legal Principle ◽  
The Subject ◽  
Definition Of ◽  
Scholarly Production

The problem to be addressed in this article is related to the precautionary principle and its incorporation into the Brazilian law. As it is beknown, this principle has been widely cited by Brazilian case law and it is an important part of the legal and environmental scholarly production. However, it follows that its application has been made fairly randomly, and even so there is no clear and operational definition of its content. The hypothesis being examined is that since the Rio Declaration’s - in its translation into Portuguese - environmental legislation has termed as legal principle, which internationally is an approach, a precautionary measure, as can be seen in both the texts in English and French of the Rio Declaration and other relevant legal instruments. The methodology to be used is the research of the case law and relevant legal rules, as well as the examination of the scholarly production on the subject. As a result, the conclusion is that there is an overuse of the precautionary principle by the Brazilian courts, especially by the Superior Court of Justice and that, in this case, the Federal Supreme Court has played a moderating role in relation to the application of the precautionary principle.

scholarly journals DISCUSSION ON CHARACTERISATION IN SOUTH AFRICAN PRIVATE INTERNATIONAL LAW

2011 ◽  
Author(s):  
Justin Leach
Keyword(s):  
International Law ◽  
South African ◽  
Case Law ◽  
Private International Law ◽  
Current Case ◽  
Choice Of Law ◽  
Legal Rules ◽  
The Subject ◽  
The Relationship ◽  
Domestic Law

To inform those unfamiliar to the subject, private international law is simply that branch of a country’s domestic law, which regulates the relationship between private individuals when foreign legal rules are in some way concerned. This branch generally has three subbranches: Jurisdiction (choice of court), choice of law and recognition of foreign judgments. The discipline of characterisation forms part of the choice of law sub-branch and is explained further below. This article discusses the problem of a ‘gap’ arising from the phenomenon of characterisation in South African private international law, by considering the current case law authorities on the matter as well as the criticisms (and suggested solutions) of legal academics. A general discussion of characterisation, with some alternative suggestions for dealing with the problem, is also mooted for consideration in a bid to air ideas. No short work could do justice to the problem visited here. This work seeks to show that the obsession with characterisation in the choice of law arena is perhaps ill founded and should perhaps be simplified in favour of a ‘most natural results’ approach.

scholarly journals Criminal law protection of certain principles of the budgetary system of the Russian Federation

2021 ◽  
pp. 60-69
Author(s):  
Artem Aleksandrovich Pastushenko ◽  
Elena Yuryevna Antonova
Keyword(s):  
National Security ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Case Law ◽  
Criminal Code ◽  
Inappropriate Use ◽  
The Subject ◽  
The Russian Federation ◽  
Criminal Legislation

The subject of this research is the criminal law guarantees for the implementation of the principles of appropriate and targeted spending of budgetary resources as an element of ensuring national security of the Russian Federation. The author conducts the assessment of normative and law-enforcement material that determines the legal essence of the indicated principles of budgetary system of the Russian Federation. The article explores case law of implementation of certain norms of criminal legislation of the Russian Federation associated with contravention of the principle of appropriate use of budgetary allocations. This article is first to juxtapose the measures of criminal law protection of the principles of appropriate and targeted spending of budgetary resources. Based on the acquired results, the current position on the absence of penalties for the inappropriate use of budgetary allocations is being disputed. The conducted comparative analysis of the measures of criminal responsibility reveals large disparity with regards to protection of the two key principles of budgetary system of the Russian Federation. The author also established the presence of criminal elements that carry out preclusive function, which narrows down the capabilities of criminal law of the Russian Federation. The article offers an optimal and effective method for eliminating this problem and improving protective capabilities of the Criminal Code of the Russian Federation, including the tasks of ensuring national security.

Criminal Law

2021 ◽  
Author(s):  
Michael Allen ◽  
Ian Edwards
Keyword(s):  
Criminal Law ◽  
Strict Liability ◽  
Case Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
The Past ◽  
Actus Reus ◽  
The Subject ◽  
The Law

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. Textbook on Criminal Law has been providing students of criminal law with a readable and reliable introduction to the subject for the past 30 years. This is the sixteenth edition, which has been updated to include all of the latest case law and statutory changes. Topics covered include actus reus, mens rea, negligence and strict liability, and capacity and incapacitating conditions. It also examines general defences, parties to crime, inchoate offences, and homicide. Towards the end of the book chapters consider non-fatal offences, sexual offences, offences under the Theft Acts 1968 and 1978, fraud, and criminal damage.

Anti-Discrimination Rules and Religious Minorities in the Workplace

2020 ◽  
Author(s):  
Katayoun Alidadi
Keyword(s):  
Social Life ◽  
Social Inequalities ◽  
Case Law ◽  
Shop Floor ◽  
Religious Minorities ◽  
Legal Norms ◽  
Legal Rules ◽  
Judicial Decisions ◽  
Indirect Discrimination ◽  
The Subject

Human rights and anti-discrimination law address social inequalities faced by religious minorities in today’s societies, including their discrimination in the workplace. Legal rules are necessarily abstract, separated from current realities of vulnerable minorities. Abstract rules do not speak for themselves (what does the prohibition of ‘indirect discrimination’ really mean?), but require interpretation, and since much is at stake they become the subject of continuous contestations over meanings. Judicial decisions mediate between the abstract and the concrete, and create ‘semi-abstract’ norms; decisions interpret and apply the abstract norms in the law on the books, but are in turn themselves the subject of (re)interpretation in the legal, social, and political realm. Thus, the specific and serendipitous facts and circumstances of particular workplace disputes provide the material for constructing meaningful understandings of legal norms. These interpretations are not neutral, but are, rather, products of judicial policy.To illustrate the importance of taking stock of judicial decisions and their role in moving abstract legal norms towards the ‘shop floor of social life’, this chapter uses as case studies two European anti-discrimination cases – Achbita and Bougnaoui (2017) – involving female Muslim employees seeking to wear a headscarf in the workplace. A holistic law and society viewpoint should engage deeply with judicial decisions that interpret and apply abstract anti-discrimination norms. Developments in case law thus merit not only the close attention of legal scholars but of legal anthropologists as well, as the latter are interested in the percolation of enacted norms on the ground.

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