scholarly journals Sistema Acusatório Princípio Processual Penal Implícito na Constituição

2020 ◽  
Vol 21 (1) ◽  
pp. 31-37
Author(s):  
Paulo Sergio Garcia
Keyword(s):  
Legal System ◽  
Criminal Procedure ◽  
Mixed System ◽  
Adversarial System ◽  
Procedural Law ◽  
Federal Constitution ◽  
Single Person ◽  
Mixed Traits ◽  
Single Organ ◽  
The Way

ResumoO artigo em questão propôs abordar sobre o sistema acusatório princípio processual penal implícito na Constituição Federal e a forma de ser interpretado na Constituição Federal de 1988 pelos doutrinadores. O sistema processual brasileiro apresenta como características seus traços inquisitórios, acusatórios e o misto. O inquisitivo é um sistema pelo qual as duas funções de acusação e julgamento se apresentam unidas em um único órgão ou em uma única pessoa, e o sistema acusatório, os papéis são reservados para pessoas ou órgãos distintos. No entanto, como observado na literatura, são apresentados conflitos na forma de interpretação dos sistemas. Muitos autores expressam suas posições, uns sustentam que o sistema adotado no Brasil é o inquisitório, outros apontam ser um sistema misto, mas outros afirmam ser o sistema acusatório. Infelizmente, o que se observa através das várias interpretações apresentadas sobre o sistema acusatório, é que este continua preso às amarras do inquisitorialismo. Nestes últimos anos, verifica-se que vêm sendo travadas lutas doutrinárias incessantes, pois se percebe a grande necessidade de transformações, que se tornam urgentes. Estas lutas têm propósitos importantes, objetivam a busca da afirmação de um direito processual penal que seja pautado pela conformidade constitucional. Palavras-chave: Constituição. Princípio Processual. Sistema Acusatório. AbstractThe article in question proposed to address the implicit principle in the Constitution adversarial system of criminal procedure and the way it is interpreted in the Federal Constitution of 1988 by the jurists. The Brazilian legal system has as its characteristics inquisitorial, accusatory and mixed traits. The questioning is a system by which the two functions of prosecution and trial are presented together in a single organ or a single person, and the adversarial system, the roles are reserved by different persons or bodies. But as noted in the literature, conflicts are presented in the form of interpretation systems. Many authors express their positions, some argue that the system adopted in Brazil is the inquisitorial one, others point to be a mixed system, but others claim to be the adversarial system. Unfortunately, what is observed through the various interpretations presented about the adversarial system, this is still tied to the shackles of inquisitorialism . In recent years, it seems that incessant doctrinal struggles have been waged, as it is possible to the great need of transformations that become urgent. These struggles have important purposes, aimed to search the assertion of criminal procedural law that is guided by constitutional compliance. Keywords: Constitution. Principle Procedure. Adversarial System.

Consensual Elements in German Criminal Procedural Law

2014 ◽  
Vol 15 (1) ◽  
pp. 15-42
Author(s):  
Folker Bittmann
Keyword(s):  
Legal System ◽  
Criminal Procedure ◽  
The Other ◽  
The Past ◽  
Procedural Law ◽  
Other Hand ◽  
The Law ◽  
The One

The aim of German criminal procedural law is not to convict the accused at any cost. Even a guilty party can only be convicted if the criminal procedure is held in accordance with the law. If this is not possible, the German legal system accepts the risk of possibly acquitting a guilty party; it finds this more tolerable than the irregular conviction of the culprit. A criminal procedure seeks the truth. Only on the basis of a judicial conviction of the crime and its culprit may a sentence be imposed. This, though, can only be based on the so-calledprocedural truth.On the one hand, the past can never be reconstructed precisely; on the other hand, clarification can only be found through legal means and by following designated paths allowed by procedural law. Therefore, further investigation must cease if it is only possible to proceed by violating procedural law.

scholarly journals The Concept of Plea Bargain in an Ethical Society

2020 ◽  
Vol 4 (1) ◽  
pp. 21-30
Author(s):  
Denisa Barbu ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Procedure ◽  
Mixed System ◽  
The Political ◽  
Legal Problem ◽  
Plea Bargain ◽  
Objective Truth ◽  
Procedural Law ◽  
Procedure Code ◽  
Inquisitorial System

The current Criminal Procedure Code has introduced several elements specific to adversarial law. Among these specific elements, I consider that a special impact on those interested in or targeted by the dispositions of criminal law is "negotiated justice". Traditionally, in the field of ​​criminal procedural law, several institutions specific to the continental system have been adopted in our country, that impose for the diagnosis of the legal problem, so that in criminal procedural law the objective truth must be identical to the judicial truth, hence the fact that judges can't base their rulings on anything else than actual facts. During the evolution of civilization, three criminal procedural systems have appeared progressively, in a chronological (historical) order in full accordance with the political and social tendency of the states at a certain moment, namely the inquisitorial system, the accusatory system, respectively the mixed system, named the continental system. We will resort in the following article to a brief presentation of these criminal procedural systems, while making a brief analysis of each of them.

SEARCH FOR AND SEIZURE OF EVIDENCE IN CYBER ENVIRONMENTS: A LAW-ENFORCEMENT DILEMMA IN SOUTH AFRICAN CRIMINAL PROCEDURE

2014 ◽  
Vol 1 (1) ◽  
pp. 48-67
Author(s):  
Vinesh M Basdeo ◽  
Moses Montesh ◽  
Bernard Khotso Lekubu
Keyword(s):  
Law Enforcement ◽  
South African ◽  
Legal System ◽  
Criminal Procedure ◽  
Integrated Approach ◽  
Physical World ◽  
Legal Framework ◽  
Time Zone ◽  
Legal Sanctions ◽  
Domestic Affairs

Investigating, deterring and imposing legal sanctions on cyber-criminals warrants an international legal framework for the investigation and prosecution of cybercrime. The real-world limits of local, state and national sovereignty and jurisdiction cannot be ignored by law-enforcement officials. It can be a strenuous task to obtain information from foreign countries, especially on an expedited basis – more specifically when the other country is in a different time zone, has a different legal system, does not have trained experts and uses different languages. In South Africa existing laws appear to be inadequate for policing the cyber realm. The effects and impact of information technology on the legal system have not yet received the attention they warrant. The challenges presented by the electronic realm cannot be solved merely by imposing existing criminal and criminal procedural laws which govern the physical world on cyberspace. The electronic realm does not necessarily demand new laws, but it does require that criminal actions be conceptualised differently and not from a purely traditional perspective. Sovereignty and the principle of non-interference in the domestic affairs of another state are fundamental principles grounding the relations between states; they constitute an important mechanism in the armoury of criminals. The harmonisation and enactment of adequate and appropriate transborder coercive procedural measures consequently play a pivotal role in facilitating effective international cooperation. This article examines the efficacy of South African laws in dealing with the challenges presented by police powers to search for and seize evidence in cyber environments. It analyses the rudimentary powers that exist in South African criminal procedure regarding the search for and seizure of evidence in cyber environments, and compares them against the backdrop of the more systemic and integrated approach proposed by the Cybercrime Convention.

CONCEPT AND CONTENT OF A RECONCILIATION AGREEMENT IN THE CRIMINAL PROCEEDINGS OF UKRAINE

2017 ◽  
Author(s):  
Mariia Sirotkina ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Main Attention ◽  
Criminal Offense ◽  
Procedural Law ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Definition Of

The article is turned out to a scientific search for the concept of "a reconciliation agreement between the victim and the suspect or accused" through the study of the essence of reconciliation and role in criminal proceedings thereof. The author notes that criminal procedural law (until 2012) had been proclaimed another approach to reconciliation between victim and suspect, not involved a dispute procedure as a conflict, the result of which can be reached by compromise and understanding through reconciliation. It is stated that one of the ways to resolve the legal conflict in committing a criminal offense was the opportunity to reach a compromise between the victim and the suspect (the accused) by concluding a reconciliation agreement between them, provided by the Code of Сriminal Procedure of Ukraine (2012). The main attention is placed on the shortcoming of the domestic criminal procedure law which is the lack of the concept of "a reconciliation agreement between the victim and the suspect or the accused", which can be eliminated only through examining the essence or legal nature of reconciliation in criminal proceedings. Taking into consideration the current legislation and modern views on the institution of reconciliation in criminal proceedings, the author's definition of the concept of "a reconciliation agreement" is proposed. Thus, “The conciliation agreement is an agreement in criminal proceedings concluded between the victim and the suspect or the accused person on their own initiative in relation to crimes of minor or medium gravity and in criminal proceedings in the form of private prosecution, the subject of which is the compensation of harm caused by wrongdoing or committing other actions not related to compensation for the damage that the suspect or the accused is obliged to commit in favor of the victim, in exchange for an agreed punishment and sentencing thereof or sentencing thereof and relief from serving a sentence with probation, as well as the statutory consequences of conclusion and approval of the agreement".

scholarly journals Current Practices and Improvement of Saudi Corporate Governance Framework

2017 ◽  
Vol 10 (4) ◽  
pp. 81
Author(s):  
Khalid Saad Al-habshan
Keyword(s):  
Corporate Governance ◽  
Legal System ◽  
Annual Reports ◽  
Legal Basis ◽  
Governance Framework ◽  
Preceding Article ◽  
Financial Scandals ◽  
The Way ◽  
Current Practices

The preceding article described the notions of disclosure and transparency and their purpose and importance in practice. An understanding of the requirements and elements of the practice of disclosure leads to a discussion of its benefits and advantages, as well as the consequences of a lack of transparency during financial scandals. The Saudi approach to disclosure and transparency is also examined based on the evidence given in board annual reports. This paper highlights the way the Saudi legal system evaluates corporate governance and its legal basis.

scholarly journals USE OF SPECIAL KNOWLEDGE DURING THE EXAMINATION OF THE SCENE OF A CRIME IN THE ORDER OF PART 3 ART. 214 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE

2021 ◽  
Vol 74 (1) ◽  
pp. 153-160
Author(s):  
Andrіy Shulha ◽  
◽  
Tetyana Khailova ◽  
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Knowledge And Skills ◽  
Procedural Law ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
The Law

The article deals with the problem of specialist’s participation in the scene examination, which is carried out before entering information into the Unified Register of the pre-trial investigations. The essence of the problem is that the current criminal procedural law of Ukraine recognizes the specialist’s participation only in the pre-trial investigation, the litigation and the proceedings in the case of the commission of an unlawful act under the law of Ukraine on criminal liability. Part 1 of Article 71 of the Criminal Procedure Code of Ukraine states that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and conclusions during the pre-trial investigation and trial on issues that require appropriate special knowledge and skills. In other cases, the specialist has no procedural status. In addition, Part 1 of Article 237 of the CPC of Ukraine «Examination» states that the examination is conducted to identify and record information on the circumstances of the offense commitment. It is an act provided by the law of Ukraine on criminal liability. However, there are the cases in the investigation, when a report is received, for example, about a person's death, other events with formal signs of the offense, which must first be checked for signs of a crime, and only then the act can be considered as offense. In this case, a specialist takes part in the scene examination. However, the current criminal procedure law in accordance with Part 1, Article 71 of the Criminal Procedure Code of Ukraine determines the legal status of a specialist only as the participant in criminal proceedings. The paragraph 10, part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines the criminal proceedings as pre-trial investigation and court proceedings or procedural actions in the case of the commission of an unlawful act. Therefore, when the inspection of the scene is based on the uncertain status of the event (there is no clear information that the event contains signs of an offense), the specialist’s participation is not regulated by law. The authors propose to consider the specialists as «experienced persons» in cases mentioned above and to include their advices to the protocol of the scene examination, as the advices of other scene examination participants.

scholarly journals A Tutela do Animal Doméstico no Âmbito das Constituições Federais Brasileiras de 1824 a 1988

2020 ◽  
Vol 20 (1) ◽  
pp. 2-11
Author(s):  
Nilsen Aparecida Vieira Marcondes
Keyword(s):  
Human Life ◽  
Domestic Animals ◽  
Domestic Animal ◽  
Point Of View ◽  
Continuous Development ◽  
Exotic Animals ◽  
Socially Constructed ◽  
Federal Constitution ◽  
The Subject ◽  
The Way

Objetiva-se discutir neste breve intróito retrospectivo de revisão de normatizações constitucionais pátrias a tutela do animal doméstico. Esta síntese reflexiva sobre a tutela do animal doméstico brasileiro no âmbito constitucional se apresenta quanto à forma de abordagem do assunto, como qualitativo, no que tange a modalidade investigativa como básico, do ponto de vista de seus objetivos, como descritivo, com relação aos procedimentos técnicos, qualifica-se como documental e bibliográfico. Conclui-se que os delineamentos, os limites, bem como os avanços na conquista da tutela animal e consequentemente do animal doméstico demonstram o quanto o reconhecimento de tal questão é socialmente construído. Além disso, a expansão, a solidificação e o desenvolvimento contínuo também da vida humana e da sociedade implicam necessariamente na preservação e na ampliação de acesso um direito fundamental nominalmente reconhecido pela Constituição Federal de 1988 como direito ao ambiente ecologicamente equilibrado no qual se insere evidentemente a fauna, ou seja, os animais domésticos, domesticados, silvestres e exóticos. Palavras-chave: Animal Doméstico. Tutela. Constituições Federais. Brasil.  AbstractThe objective of this brief retrospective introjective review of constitutional norms is to discuss the protection of domestic animals. This reflexive synthesis about the protection of the Brazilian domestic animal in the constitutional scope presents itself as to the way of approaching the subject, as qualitative, in what refers to the research modality as basic, from the point of view of its objectives, as descriptive, with respect to the procedures technicians, qualifies as documentary and bibliographical. It is concluded that the delineations, the limits, as well as the advances in the conquest of the animal guardianship and consequently of the domestic animal demonstrate how much the recognition of such question is socially constructed. In addition, the expansion, solidification and continuous development of human life and society necessarily imply the preservation and expansion of access to a fundamental right nominally recognized by the Federal Constitution of 1988 as a right to an environmentally balanced environment in which the animal, domesticated, wild and exotic animals. Keywords: Domestic Animals. Guardianship. Federal Constitutions. Brasil.

scholarly journals СТАНОВЛЕННЯ ПАРАДИГМИ МІЖНАРОДНОГО ПРОЦЕСУАЛЬНОГО ПРАВА У ПОСТРАДЯНСЬКІЙ ПРАВОВІЙ НАУЦІ

2019 ◽  
Vol 13 ◽  
pp. 159-165
Author(s):  
Т. О. Анцупова
Keyword(s):  
Legal System ◽  
Procedural Law ◽  
Legal Science ◽  
International Legal System ◽  
Philosophical Understanding

Домінуючою в сучасній науці міжнародного права пострадянського простору є нау­кова позиція, відповідно до якої ототожнюються «міжнародний судовий (юрисдикційний) процес» і «міжнародне процесуальне право». Автор статті зазначає безперспективність такої позиції для розвитку міжнародної правової системи, схиляючись до загальнофіло-софського уявлення про процес як про комплекс послідовних дій або послідовних, змінюючих один одного, органічно взаємопов'язаних явищ.   The scientific position, according to which «International Legal (Jurisdictional) Process» and «International Procedural Law» are identified is dominated in the modern international legal science on post-Soviet area. The author points out the futility of such a position for the development of the International Legal System, tending to the philosophical understanding of the process as complex sequential, successive, organically interrelated phenomena.

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