scholarly journals Medical Malpractice as a Separate Criminal Offense: a Higher Degree of Patient Protection or Merely a Sword Above the Doctors' Heads? The Example of the Croatian Legislative Model and the Experiences of its Implementation

2019 ◽  
Vol 12 (2) ◽  
pp. 39-60
Author(s):  
Igor Vuletić
Keyword(s):  
Medical Malpractice ◽  
Case Law ◽  
Legal Certainty ◽  
Criminal Offense ◽  
Degree Of Protection ◽  
Bodily Injury ◽  
Judicial Practice ◽  
Patient Protection ◽  
Criminal Offenses ◽  
Legislative Model

A comparative overview of the criminalisation of medical errors in Europe shows that this in principle is approached in two ways. Under the first approach, such errors are incriminated through the general regime for criminal offenses, such as bodily injury or causing death by negligence. The second approach, adopted in a smaller number of countries, prescribes it as a separate criminal offense (as medical malpractice). Croatian law is a typical example of the second model, which has given rise to discussions in Croatian scholarly circles about the abandonment of such a model. The author analyses the Croatian legislative solution and its realisation in judicial practice, and based on this analysis, through the presentation of noteworthy case law, provides conclusions on whether or not the Croatian legislative solution indeed provides a higher degree of protection of the health of patients and a higher level of legal certainty.

PENALTIES PROVIDED FOR SERIOUS CRIMES IN THE CRIMINAL CODE OF UKRAINE

2018 ◽  
Author(s):  
Oleksandra Skok ◽  
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Criminal Code ◽  
Legal Analysis ◽  
Judicial Practice ◽  
Criminal Offenses ◽  
The Supreme Court ◽  
Special Part ◽  
The Right ◽  
National Police

The statistics of the Prosecutor General's Office on registered criminal offenses in the form of serious crimes for 2020 and 2021 were reviewed. Based on this, the number of serious crimes registered by the National Police of Ukraine during the reporting periods was determined. The provisions of the current Criminal Code of Ukraine, the Criminal-Executive Code of Ukraine, the Resolution of the Plenum of the Supreme Court No 7 of October 24, 2003 are analyzed, as well as some scientific positions of domestic scientists Knyzhenko O. O are taken into account. and Berezhnyuk V. M In addition, a review of the case law of the Supreme Court of Cassation on sentencing was studied. A thorough criminal-legal analysis of the sanctions of the articles of the Special Part of the Criminal Code of Ukraine in the part of punishments established for the category of serious crimes was carried out. Based on the analysis, it was determined which main and additional punishments are regulated in the sanctions of the articles of the Special Part of the Criminal Code of Ukraine for the investigated category of crimes. The quantitative and qualitative indicator of sanctions for serious crimes has been determined, which include: imprisonment for a definite term; punishments alternative to imprisonment; additional penalties. Legislative and doctrinal provisions on punishments in the form of imprisonment for a definite term, restriction of liberty, fine, correctional labor, arrest are considered. The judicial practice of Ukraine in the part of certain issues related to the execution of a penalty in the form of a fine and the replacement of a penalty in the form of a fine with a penalty in the form of correctional labor is analyzed. It is established that the Criminal Code of Ukraine, in the sanctions of the articles, provides for the application to a person who has committed a serious crime, punishment in the form of imprisonment, restriction of liberty, fine, correctional labor, arrest - as the main punishment. The range of additional punishments is defined, which determine: confiscation of property, deprivation of the right to hold certain positions or engage in certain activities and a fine.

scholarly journals CRIMINAL LAW CONSIDERATIONS (Ratio Decidendi)

2020 ◽  
Vol 1 (2) ◽  
pp. 90
Author(s):  
Prayitno Iman Santosa
Keyword(s):  
Criminal Law ◽  
The Other ◽  
Objective Measures ◽  
Legal Certainty ◽  
Criminal Cases ◽  
Criminal Offense ◽  
Judicial Practice ◽  
Other Hand ◽  
Ratio Decidendi

Judicial practice in Indonesia, judging from the decisions of criminal cases, generally judges give legal considerations only to prove the elements of a criminal offense. In contrast, the determination of the crime is not objectively considered, and most are merely considerations of incriminating and mitigating matters. On the other hand, the judge has absolute authority in imposing a crime; the judge's freedom is guaranteed by law. The supreme power of judges who are used freely without objective measures has the potential to produce corrupt decisions and injustices. Criminal objectives must be aligned with legal goals, namely to realize penalties that guarantee legal certainty, justice, and expediency. Ideally, good sentences reflect the three purposes of the law.

scholarly journals Criminal-legal meaning of driving under the influence in the acts stipulated by Article 286 of the Criminal Code of Ukraine

2020 ◽  
pp. 66-72
Author(s):  
V. Myslyvyi
Keyword(s):  
Criminal Code ◽  
Driving Under The Influence ◽  
Criminal Offense ◽  
Judicial Practice ◽  
Operation Rules ◽  
Driving While Impaired ◽  
Criminal Offenses ◽  
Vehicle Operation ◽  
Objective Side ◽  
Determining Factor

The article deals with issues of combatting criminal offenses related to violations of road safety and vehicle operation rules stipulated by Article 286 of the Criminal Code of Ukraine. The focus is on acts committed by persons who were in a state of alcohol, drugs or other intoxication. Based on research and analysis of current national judicial practice the author has revealed the presence of contradictions in court judgments of different instances where provided opposite criminal legal assessment consisting of a criminal offense under Article 286 of the CC of Ukraine, the following factors as driving while impaired by alcohol, drugs and other intoxication. The essence of such an assessment, as shown by a certain part of the verdicts, is that some courts do not consider the state of intoxication of a person driving a vehicle as a sign of the objective side of this criminal offense, and therefore do not see it as one of the reasons acts as a determining factor of these criminal offenses. The research paper contains a critical analysis of this approach in judicial practice and provides arguments for its unreasonableness, as driving under the influence as a cause of accidents in transport is considered to be universally recognized. However to avoid contradictions in judicial practice and to reach efficiency impact of criminal legaltools in combating the above mentioned criminal offense the author has proposed that Article 286 of the CC of Ukraine should stipulate an aggravating circumstances such as the commitment of a criminal offense by a person being in a state of intoxication

scholarly journals Robberies and Some Features of the Methodology of Investigating Robberies

2018 ◽  
Vol 3 (4) ◽  
pp. 15
Author(s):  
Duraković Adnan
Keyword(s):  
Police Officers ◽  
Point Of View ◽  
Criminal Investigation ◽  
Criminal Offense ◽  
Bodily Injury ◽  
Criminal Offenses ◽  
Sense Of Security ◽  
Criminal Control ◽  
Technical Measures ◽  
Strategic Goal

Robberies are crimes that particularly negatively and significantly affect the subjective sense of security (but also objective) in society. Special significance of robberies is that they are often on the edge of murder or serious bodily injury. From the criminal law and criminal investigation point of view, robberies range from the so-called "simple" cases in terms of their discovery and clarification to the very serious armed raid on individuals, money transport, legal persons such as banks and other monetary institutions. The suppression of property crimes, especially the part which includes delicts that are carried out using coercion (force and / or threat) like robberies, can be successfully carried out by methods that could be called criminalistic methods. These methods represent a kind of criminalistic engineering - criminal investigation engineering. Criminalistic engineering is all about adjusting criminal investigation tactics, forensic and legal actions and measures to special features of criminal offenses. When carrying out criminal investigation, authorized police officers must constantly take care of the so-called operational criminalistic strategy that rises above the tactical processing of a particular criminal offense, and is aimed at the creation and implementation of a complex of operational-tactical and technical measures and actions with the strategic goal of combating criminality as a whole. This is reflected in the organizational structure of the police and also in the way of criminal control which implies permanent, continuous and systematic penetration and supervision of the so-called the "dark belt" of crime.

scholarly journals CONSTRUCTION CONTRACT OF HIRE PURCHASE AND CORRELATION WITH CRIMINAL OFFENSE

2019 ◽  
Vol 3 (1) ◽  
pp. 35
Author(s):  
Bambang Tri Bawono
Keyword(s):  
Consumer Protection ◽  
Court Decision ◽  
Legal Certainty ◽  
Criminal Offense ◽  
Consumer Protection Act ◽  
Criminal Offenses ◽  
Construction Law ◽  
The Right ◽  
Legal Consequences ◽  
Lease Agreement

Hire purchase agreements that have developed in the realm of society yet have clarity because there is no specific legislation governing the lease-sale agreement. The absence of specific legislation governing the lease resulted in the agreement to experience different views for legal experts both in terms of the definition and the legal consequences arising. This type of research used in this study is a research library with normative juridical approach. Normative research. The results of this study mention: first, the legal construction of a hire purchase agreement did not have legal certainty, because this agreement has legal consequences of changing from the payment of the debt to the payment of rent, when a tort committed by the purchaser. Other than that, construction law hire purchase agreement is null and void, because there are some clauses which are contrary to Article 1266 of the Civil Code and Article 18 of the Consumer Protection Act. Second, the criminal offenses arising from a lease agreement is a criminal offense of extortion, when the withdrawal unilaterally, although financing the vehicle has been registered in the Register of Fiduciary. This is because even though the fiduciary has the right of executor, but the execution must follow procedures for the implementation of a court decision, so businesses must apply in advance to the Chairman of the Court.

scholarly journals SANKSI HUKUM TERHADAP PELAKU KEJAHATAN DENGAN HYPNOSIS

2014 ◽  
Vol 7 (13) ◽  
Author(s):  
Bhakti Prasetyo
Keyword(s):  
Law Enforcement ◽  
Legal Issues ◽  
Legal Certainty ◽  
Law Enforcement Agencies ◽  
Criminal Offense ◽  
The Public ◽  
Criminal Offenses ◽  
Ancient Times ◽  
The Many ◽  
Principle Of Legality

Hypnosis crime is a conventional crime that has existed since ancient times until today, although it has been around since before this country turns to date we have not had a clause governing criminal offenses. In Empirical hypnosis crime has a lot going on in Indonesia and has many court decisions are fixed (Incracht) that hypnosis criminal act is a criminal offense. The principle of legality to say that "there is no act can be imprisoned except by the power of the criminal provisions of the existing law" means that the person can not be punished without any written rules that govern them.In fact a lot of events that happen in the middle of the community where the event has not been set in criminal law today. Hypnosis crime is one of the many legal issues that occur at this time where the crime is no crime that govern article.Judge looks hypnosis is used as a tool for easy mode or intentions that resulted in harm to another person called a crime and imprisonment sanction that be a lesson to the public or to the law enforcement agencies for to ensure legal certainty and sense of fairness in society.Key words :Penegakkan hukum (law enforcement), Keadilan (Justice),  Kepastian (assurance)Sanksi ( Sanction )

scholarly journals Peculiarities of qualification of criminal offenses against movement safety and transport operation: a review of judicial practice.

2021 ◽  
Vol 3 (3) ◽  
pp. 227-234
Author(s):  
Vasyl Berezniak
Keyword(s):  
Traffic Safety ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Judicial Practice ◽  
Criminal Offenses ◽  
Decisive Evidence ◽  
Act Assessment

The article reviews some court decisions, which highlight the key features of the assessment of criminal offenses against traffic safety and transport operation. Typical situations of committing criminal offenses of this type with the analysis of difficulties of qualification and further bringing a person to criminal responsibility are studied. In addition, attention is paid to the differentiation of legal liability, where the means of committing an offense or the subject is a vehicle, as well as highlighted key aspects related to the definition, type and nature of the act. Assessment of criminal offenses against traffic safety and transport operation under art. 286 of the Criminal Code of Ukraine should be based not only on the rules of substantive law, ie the law of Ukraine on criminal liability. Within the framework of criminal proceedings, the employee-practitioner is guided by the rules of the Criminal Procedure Code of Ukraine, which provides for the possibility of changing the assessment of a criminal offense, taking into account the available facts and circumstances. Regarding the existence of certain regulations governing the specifics of assessment and further pre-trial investigation into the commission of a criminal offense against traffic safety and transport operation, today the national justice system has formed judicial practice on this issue. However, it requires some generalization and identification of key points in the qualification of the investigated criminal offenses or further criminal proceedings. The decisive evidence in criminal proceedings concerning criminal offenses against traffic safety and transport operation is the experts’ conclusions from various types of examinations, which are appointed in these proceedings. In particular, auto-technical, auto-commodity, transport-trasological expert studies, which establish important circumstances for establishing the suspect’se guilt or innocence.

INVESTIGATION OF CRIMINAL CHARACTERISTICS OF ILLEGAL PUBLIC USE OF DRUGS

2020 ◽  
pp. 277-283
Author(s):  
С. Ф. Денисюк
Keyword(s):  
Illicit Drugs ◽  
Negative Impact ◽  
Scientific Article ◽  
Criminal Offense ◽  
Social Sphere ◽  
Drug Crime ◽  
Judicial Practice ◽  
Criminal Offenses ◽  
Starting Point ◽  
Forensic Scientists

The relevance of the article is that the spread of drug addiction and drug crime in Ukraine over the past ten years has become one of the most acute social problems, failure to solve which leads to harm to human health, negative impact on the social sphere, and is a threat to national security. Of particular concern in the light of socio-economic crises is the systematic use of illicit drugs and the increase in drug-related crimes. At the same time, the number of criminal offenses for illegal public use of drugs is increasing, which in turn requires the creation of the most advanced methods of detection and investigation of criminal offenses and the development of appropriate practical recommendations for the use of forensic techniques and tactics specific to a particular crime. The purpose of the article is to provide a forensic characterization of illegal public drug use. The scientific article analyzes the scientific positions of forensic scientists and proceduralists on the understanding of the conceptual category «forensic characteristics of a criminal offense» and further identification of the main elements of the forensic characteristics of criminal offenses. It is stated that forensic characteristics are a relevant scientific abstraction based on the analysis of investigative, expert, operational-search, judicial practice used by this practice through the methodology of investigation of criminal offenses of the relevant type, the starting point for which it is characteristic. Within the limits of the scientific article the following elements of the criminological characteristic of illegal public use of drugs are allocated and investigated: a) a way of commission of a criminal offense; b) a description of the identity of the offender; c) the subject of criminal encroachment; d) place of commission; e) typical traces of the crime.

CONSIDERING SENTENCE FOR PREDICATE OFFENSE

2021 ◽  
pp. 111-122
Author(s):  
PREDRAG VULEVIĆ
Keyword(s):  
Real Time ◽  
Criminal Law ◽  
Case Law ◽  
Previous Measurement ◽  
Criminal Proceedings ◽  
Time Intervals ◽  
Criminal Offense ◽  
Whole Process ◽  
Criminal Offenses ◽  
Made In

The process of sentencing means individualization and customization types and extent of sentencing the crime and its perpetrator. In that way, the purpose of criminal law, which consists in the last defense of the society from crime, is best realized. The whole process of keeping the pre-trial and criminal proceedings has the ultimate goal of sentencing the defendant. Furthermore, the procedure of execution of the sentence is based on its previous measurement and adjustment of the personality of the convicted person. Hence, the case law abounds with examples in which an inadequately measured sentence has called into question the criminal procedure itself and the defensive function of criminal law in the society. The issue of sentencing in modern criminal law has been resolved in accordance with modern trends in the field of punishing perpetrators of criminal offenses. Therefore, we can distinguish between regular sentencing, which means that the perpetrator goes to court for one criminal offense. However, in court practice, it is not uncommon for the perpetrator to go to court due to multiple predicate offenses made in ideal or real time. In this case, special sentencing rules apply, which take into account the fact that several criminal offenses are tried at the same time. In criminal doctrine, there are several modalities of sentencing for predicate offenses. Their number varied in different time intervals. Our legislator has incorporated into its norms three ways of sentencing for predicate offenses. These are the systems: absorptions, asperations, and cumulations. In this paper, we will point out the advantages, disadvantages and applicability of each of these systems that sentencing predicate offenses.

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