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.

scholarly journals Criminal Influence and Problems of its Definition in the Criminal Code of Ukraine

2021 ◽  
Vol 6 ◽  
pp. 46-56
Author(s):  
Artem Nikitin
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
High Probability ◽  
Criminal Liability ◽  
Criminal Code ◽  
Point Of View ◽  
Legal Certainty ◽  
Abstract Concepts ◽  
Definition Of ◽  
Criminal Legislation

The article researches the term “criminal influence” which was introduced to the Criminal Code of Ukraine (hereinafter – the CC of Ukraine) by the Law of Ukraine “On amendments to the Criminal Code of Ukraine regarding liability for crimes committed by criminal community”, and its correlation with the institute of complicity in a crime, in particular with objective elements of accomplices in a crime, as well as with illegal influence. The author concludes that there may be one narrow and two broad types of understanding of this term. Moreover, criminal influence may be considered not only from the criminal legal but also from the criminological point of view. Criminal influence is a part of the broader term of illegal influence. However, in contrast to other types of illegal influence, criminal influence, due to its social danger, is limited by the state specifically by the means of criminal law.The term of criminal influence introduced to the Ukrainian criminal legislation has serious gaps, so that it is extremely poor and practically inapplicable. Moreover, not only this term defined in the note to Art. 255 of the CC of Ukraine, but also corpus delicti provided for in Art. 255-1 of the CC of Ukraine (intentional establishment or dissemination of the criminal influence in society) should be substantially revised. The usage of general formulations and abstract concepts in the disposition of Art. 255-1 of the CC of Ukraine, as well as non-exhaustive lists of objective and subjective elements in the definition of the term of criminal influence violates the principle of legal certainty as a part of a broader rule of law principle. Bringing individuals to the criminal liability for committing crimes related to the criminal influence (intentional establishment or dissemination of the criminal influence in society and request for its application) or conviction of individuals for these crimes with a high probability will cause substantial violations of fundamental principles of criminal law and human rights.

scholarly journals JUDICIAL REVIEW PASAL-PASAL MAKAR KUHP: PERSPEKTIF PENAFSIRAN HUKUM DAN HAM (JUDICIAL REVIEW ON TREACHERY ARTICLES OF THE CRIMINAL CODE: THE PERSPECTIVE OF LAW INTERPRETATION AND HUMAN RIGHTS)

2017 ◽  
Vol 8 (2) ◽  
pp. 235-253
Author(s):  
Prianter Jaya Hairi
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Judicial Review ◽  
Freedom Of Expression ◽  
Criminal Code ◽  
Constitutional Court ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Legal Sanctions ◽  
Definition Of

In 2017, Constitutional Court has received three calls for judicial reviews regarding treachery (makar) article in the Criminal Code. These articles deemed to be contradicting with the principle of legal certainty and freedom of expression. This study analyzes the important issue that is being debate in those judicial reviews. One of those is about the argument which says that the absence of the definition of treachery in the Criminal Code has caused a violation of legal certainty. Besides, the rule of treachery in the Criminal Code has also considered to have caused a violation of freedom of expression which has been guaranteed by Constitution. Analysis shows that the absence of treachery definition in the Criminal Code is not something that instantly becomes a problem in its application that causing the loss of legal certainty. Law enforcer, especially judge, in enforcing the rule of law must always use the method of law interpretation which appropriate with legal norm. With systematic interpretation, treachery can be interpreted according to the sentence of the rule as a unity of the legal system. In this case, the term treachery as regulated in Article 87 of the Criminal Code can be systematically interpreted as the basis for Article 104-Article 108 of the Criminal Code, Article 130 of the Criminal Code, and Article 140 of the Criminal Code which regulates various types of treason and their respective legal sanctions for the perpetrators. Further, on the argument that the articles of treachery in the Criminal Code also can not necessarily be said to limit the freedom of expression, because every citizen’s freedom has limitation, including the limitation of law and human rights. AbstrakPada tahun 2017, Mahkamah Konstitusi telah menerima tiga kali judicial reviewterhadap pasalpasal tindak pidana makar dalam Kitab Undang-Undang Hukum Pidana (KUHP). Pasal-pasal ini dipandang bertentangan dengan prinsip kepastian hukum dan kebebasan berekspresi. Tulisan ini menganalisis substansi yang menjadi perdebatan dalam perkara judicial review tersebut. Di antaranya perdebatan mengenai tidak adanya definisi istilah makar dalam KUHP yang menyebabkan persoalan kepastian hukum. Selain itu, pengaturan tindak pidana makar dalam KUHP juga dinilai melanggar kebebasan berekspresi yang telah dijamin oleh konstitusi. Analisis terhadap persoalanpersoalan tersebut menunjukkan bahwa ketiadaan definisi kata “makar” dalam KUHP bukanlah merupakan sesuatu yang serta merta langsung menjadi persoalan dalam penerapannya sehingga menyebabkan hilangnya kepastian hukum. Penegak hukum, terutama hakim, dalam menegakkan peraturan hukum selalu menggunakan metode penafsiran hukum yang sesuai dengan kaidah ilmu hukum. Dengan penafsiran sistematis, makar dapat dimaknai sesuai kalimat dari peraturan sebagai suatu kesatuan sistem hukum. Dalam hal ini, istilah makar yang diatur dalam Pasal 87 KUHP, secara sistematis dapat ditafsirkan sebagai dasar bagi Pasal 104-Pasal 108 KUHP, Pasal 130 KUHP, dan Pasal 140 KUHP yang mengatur tentang jenis makar beserta sanksi hukumnya masing-masing bagi para pelakunya. Selain itu, mengenai argumen bahwa pasal-pasal makar dalam KUHP berpotensi melanggar HAM dan dipandang bertentangan dengan konstitusi dapat dikatakan tidak beralasan. Sebab kebebasan HAM setiap orang tidak tanpa batas, di antaranya dibatasi nilai-nilai agama, keamanan, dan ketertiban umum.

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 Intelligibility of a criminal law: Theoretical and practical aspects

2021 ◽  
Vol 10 (44) ◽  
pp. 92-102
Author(s):  
Olha Musychenko ◽  
Yevgen Streltsov ◽  
Oleksandr Kozachenko ◽  
Olesya Vasyliaka ◽  
Larysa Chornozub
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Qualitative Property ◽  
Main Task ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
European Court ◽  
Legal Nature ◽  
The Law ◽  
Definition Of

The main task of the article is to study a separate qualitative property criminal law its intelligibility. When solving the problem the definition of intelligibility of the criminal law taking into account genesis is formulated this concept and different approaches to its content, which have developed in modern law doctrine. In order to substantiate the author's approach to the definition of intelligibility of the criminal law the monitoring of normative-legal acts, decisions of national and international judicial authorities is carried out. It is shown that the term ‘intelligibility of law’ and related terms ‘clear’, ‘precise’, ‘simple’ law are actively used both in regulations and in decisions of national and international judicial authorities. However, the terminology is diverse, thereby it has been suggested in the decisions of the European Court of Human Rights to use the term ‘intelligibility’of the law, which is the most accurate and adequately reflects the assessment of the legal certainty of national laws. The general conclusion is substantiated that in modern doctrine there are three approaches to determining the legal nature of the intelligibility of the law: as a component of the rule of law, as a requirement for the language of law, as a qualitative property of law. The absence of antagonistic features in each of the approaches allowed to use the positive gains of different perceptions of the intelligibility of the criminal law and to define it.

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 TINJAUAN YURIDIS TENTANG GABUNGAN TINDAK PIDANA SEBAGAI HAL YANG MEMBERATKAN PIDANA Studi Kasus: Putusan Perkara Nomor:141/Pid.B/2018/PN Mrj (Pencurian)

2021 ◽  
Vol 3 (2) ◽  
pp. 212-226
Author(s):  
Failin Failin
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Deterrent Effect ◽  
District Court ◽  
Prison Sentence ◽  
Legal Certainty ◽  
The Family ◽  
Sense Of Justice

In criminal law there is no penalty if there is no wrongdoing, this basis is about the accountability of a person for the actions he has done. Therefore, in criminal law there are exceptions to such criminal liability, for example contained in Articles 48, 49, 50 and so forth. In addition, there are burdensome things that will be imposed on the accused for crimes committed, such as samenloop, recidive and so on. In the Muaro Sijunjung District Court there is one case concerning a combination of criminal acts, namely theft crimes accompanied by violence and moreover this theft is carried out among families (theft in the family). In this case the judge has decided the prison sentence for 6 (six) Years. But according to the analysis of the author there is no sense of justice for the victim because this perpetrator is the husband of the victim's child so that there is no deterrent effect for the perpetrator, the reason that there is no more theft in this family because no matter how small the crime committed by a person must be taken action in order to obtain justice and legal certainty. In principle, judges have the freedom to determine the measure of punishment to be imposed on the perpetrators of crimes, as long as it does not exceed the maximum provisions specified in the Criminal Code. Therefore, the sentencing of the accused for a combination of crimes committed by means of pure absorption Stelsel that is If a person commits several acts that are several delik each threatened with a different kind of criminal

scholarly journals REGARDING TO THE ANALYSIS OF THE CONCEPT OF LAND-RELATED CORRUPTION

2020 ◽  
pp. 110-113
Author(s):  
A. V. Sira
Keyword(s):  
Civil Society ◽  
Rule Of Law ◽  
Land Reform ◽  
Working Group ◽  
Land Market ◽  
The Rule Of Law ◽  
Land Relations ◽  
Definition Of ◽  
Established Order ◽  
The Eu

The article analyzes the definition and formation of the essence of the category of “offenses related to corruption in the field of land relations” both from the standpoint of different scientific views and the definition presented in the regulatory plane. It is said that Ukraine is currently facing a number of serious problems, including the fact that corruption-related offenses are pervasive. The presence of corruption is a significant threat to the rule of law, the development of democracy, and the formation of civil society. Against this backdrop, legal relations that are engulfed in corruption stand out as land relations, as they are of strategic importance to the state. This problem is being updated in connection with the implementation of land reform and the further implementation of the free land market. The importance of solving this problem for Ukraine is also underlined by the recommendations, which are the first priority measures in combating corruption in the land sphere, provided by the working group “Perspectives of cooperation between Ukraine and the EU in the field of justice, freedom and security” on combating corruption in the field of land relations, in the composition of land relations, which included 97 scientists, scientists and statesmen. It is advisable to consider the concept of “administrative offenses related to corruption in the field of land relations” in a stable, inseparable way with the definition of the term “corruption offenses”, which will allow us to get as close as possible to its essence. Namely, “administrative offense related to corruption in the land sphere” is, respectively, understood as the guilty, unlawful behavior of a subject that encroaches on the established order of management in the field related to land relations and for which administrative legislation provides for liability

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.

PENALIZATION OF ILLEGAL INTERFERENCE IN THE OPERATION OF THE AUTOMATED COURT DOCUMENT SYSTEM IN UKRAINE

2021 ◽  
Vol 2 (2) ◽  
pp. 150-160
Author(s):  
Yehor Nazymko ◽  
◽  
Artem Shcherbina ◽  
Keyword(s):  
Criminal Law ◽  
Management System ◽  
Criminal Liability ◽  
Criminal Code ◽  
Mirror Image ◽  
Document Management ◽  
Document Management System ◽  
Criminal Offender ◽  
Unlawful Interference ◽  
Definition Of

In the article the authors consider the institute of penalization in general and penalization of illegal interference in the work of the automated document management system of the court in Ukraine in particular. It is indicated that the study of sanctions of criminal law, and in particular Art. 376-1 of the Criminal Code of Ukraine, which provides for criminal liability for unlawful interference in the automated document management system of the court, allows us to conclude that the legislator does not always correctly correlate the public danger of an illegal act, its consequences for the state and society. According to the author, the concept of penalization is somewhat narrower than penalization. This can be explained by the fact that criminal law, despite all its humanity, is an instrument, first of all, punitive, and only then educational influence. In most cases, correction is achieved through punishment in its purest form. That is why the measures and means of alternative work with a criminal offender, which consists in release from punishment are very limited. Therefore, depenalization is a mirror image of penalization, in its narrower sense. The author's definition of penalization is offered, which should be understood as a component of criminal law policy, which is a set of mutually agreed principles, laid down in the content of punishment and implemented in the form of sanctions of the Special Part of criminal law. It is concluded that currently the types of penalties provided for illegal interference in the work of the automated document management system of the court are not fully effective and do not correspond to the level of public danger of the act. An important way of development for the legislator is to change the approach to the subjects of such an offense and to establish the features of its commission, all the necessary components of the subjective side of the criminal offense. Currently, one of the effective ways to solve this situation is to differentiate criminal liability depending on the type of subject (general or special).

scholarly journals From Magna Carta To The Contemporary System Of Financial Penalties In The Criminal Law

SEEU Review ◽  
2015 ◽  
Vol 11 (1) ◽  
pp. 40-47
Author(s):  
Aleksandra Deanoska – Trendafilova
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Criminal Code ◽  
Historical Document ◽  
Criminal Offence ◽  
Constitutional History ◽  
Basic Principles ◽  
The Rule Of Law ◽  
Magna Carta ◽  
Solid Foundation

Abstract Magna Carta Libertatum or the Great Charter of the Liberties is a historical document of great significance for the constitutional history and human rights and liberties development. Although at its initial version it addressed a limited number of liberties and principles, it represented a solid foundation for the evolution of the principles of the rule of law, right to justice, right to a fair trial, just and reasonable sentencing, limitation of powers, etc. Namely, article 20 of the Charter states: A freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense, yet saving always his “contenement”; and a merchant in the same way, saving his “merchandise”; and a villein shall be amerced in the same way, saving his “wainage” if they have fallen into our mercy: and none of the aforesaid amercements shall be imposed except by the oath of honest men of the neighborhood. An analysis of this article undoubtedly leads us to the basic principles of the contemporary systems of fine, namely the daily-fine system introduced in the Macedonian Criminal Code in 2004 according to which the fine will be calculated and pronounced according to the gravity of the offence and the financial state and condition of the perpetrator. As one can notice, the gravity of the offence and the saving of the perpetrators “contenement” from the abovementioned article of the Great Charter refer to the aforesaid principles. In this article, a comparison will be made on the meaning of the term “amercement” and its similarities and differences with the modern financial penalties and measures in the criminal law from comparative perspective, to find which one corresponds to the latter: fine, assets forfeiture or compensation of damages made with the criminal offence.

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