scholarly journals When is a Code a Code?

2010 ◽  
Vol 15 (1) ◽  
pp. 65 ◽  
Author(s):  
Andrew Hemming
Keyword(s):  
Western Australia ◽  
Criminal Law ◽  
Common Law ◽  
Criminal Code ◽  
Northern Territory ◽  
Level Of Detail ◽  
Secondary Material ◽  
Four Corners ◽  
The Common ◽  
Definition Of

<p>This paper will develop the proposition that criminal codes in Australia are misnamed because they fail the fundamental test for a code of comprehensively stating the criminal law in one statute. This contention applies to all codes from the Griffith Codes of Queensland, Western Australia, Tasmania and the Northern Territory to the more recently minted Criminal Code 1995 (Cth). The reason for such failure is that all the codes are too sparsely written, and, due to inadequate definitional detail or statement of the appropriate tests to be applied, judges are required to have recourse to the common law to ‘fill in the blanks’ left by the code. It is here argued that a code needs to be structured with the objective of keeping statutory interpretation within the four corners of the code. Bland injunctions that recourse to the common law is permissible only when the meaning is uncertain or where a prior technical meaning existed are wholly inadequate.<br />The paper sets out a series of examples which cover both offences and defences (such as causation and provocation) and which are intended to demonstrate the appropriate level of detail required to meet the conventional definition of a true code without sacrificing clarity. These examples should be viewed as templates for use in a variety of contexts, supporting the proposition that clarity, not confusion, can result from more detailed drafting. Drafting of this kind, which is directed at incorporating the relevant tests that the legislature accepts as appropriate, reduces reliance on secondary material such as second reading speeches. Secondly, it firmly tilts the legislature-judiciary ‘partnership’ in favour of the legislature (as a true code should) leaving the judiciary to explain the tests to the jury rather than to select which tests are appropriate. In this way at least consistency within a code, rather than uniformity across codes, can be promoted.</p>

scholarly journals Organized Crime under Anglo-Saxon Criminal Law: Features of Legislative Regulation

2020 ◽  
Vol 15 (1) ◽  
pp. 151-160
Author(s):  
S. S. Zhukova
Keyword(s):  
Criminal Law ◽  
Organized Crime ◽  
Common Law ◽  
Criminal Group ◽  
Criminal Code ◽  
Legal Analysis ◽  
Anglo Saxon ◽  
Significant Difference ◽  
Legislative Regulation ◽  
Definition Of

The paper is devoted to the comparative legal analysis of the group commission of a crime under Anglo-Saxon criminal law. The commission of a crime in conspiracy has an increased public danger and poses a serious threat to each state and society as a whole. Foreign lawmakers take different approaches to the definition of organized crime, taking into account its heterogeneous nature. The author studies the specificity of the legislative regulation of variations in criminal groupings in common law countries. A comparative analysis of the legislative regulation of organized crime allows us to note the positive experience that can be used to improve domestic criminal law governing forms of conspiracy and law enforcement.The study notes that the criminal law of the Anglo-Saxon legal family is characterized by a low level of systematization of legislation and increased attention to the norms (decisions) expressed in the judicial precedent. At the same time, the existing criminal law standards governing the institution of conspiracy comply with international law. Some common law countries recognize a conspiracy between two or more persons for committing a crime as an organized crime group. It is important to note that this feature is also a characteristic of domestic criminal law. In accordance with Art. 32 of the Criminal Code of the Russian Federation, a conspiracy is the intentional joint participation of two or more persons in the commission of an intentional crime. At the same time, a significant difference between the criminal law of the Anglo-Saxon legal family is the legislative consolidation of the qualitative and quantitative criteria of group formations (criminal association, organized criminal group, gang) depending on the degree of public danger of their crimes.

scholarly journals The Civil and Criminal Applications of the Identification Doctrine: Arguments for Harmonization

2015 ◽  
Author(s):  
Darcy L MacPherson
Keyword(s):  
Criminal Law ◽  
Mental State ◽  
Common Law ◽  
Mental States ◽  
Criminal Code ◽  
The Common

The identification doctrine refers to the attribution of mental states to a corporation. This article analyzes the two types of situations in which this doctrine is used. Tlte first is where the Crown wishes to hold a corporation liable for crimes requiring proof of mental fault. Canadian Dredge & Dock Co. Ltd. v. R. serves as the cornerstone case in which the doctrine is firmly established as a "sword" against corporations in the criminal law. The second situation in which the doctrine has been used is where the corporation sues in tort, and the defendant wishes to say that the mental state of the plaintiff corporation disentitles recovery. In other words, the doctrine can be used as a "shield" for individuals against claims in tort by corporations.Legislative amendments to the Criminal Code have altered criteria for the doctrine in the criminal law. These changes do not affect the "shield" use of the doctrine, which is still governed by the common law.The author argues for the harmonization of the common law doctrine with its criminal legislative counterpart.

scholarly journals MARITAL RAPE: A TALE OF TWO LEGAL SYSTEMS

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
Oyebanke Yebisi ◽  
Victoria Balogun
Keyword(s):  
South Africa ◽  
South African ◽  
Criminal Law ◽  
Common Law ◽  
Case Law ◽  
Criminal Code ◽  
Marital Rape ◽  
The South ◽  
Sexual Offences ◽  
The Common

Marital rape is a form of sexual violence, which is often downplayed due to the common law position that a man cannot rape his wife. While certain jurisdictions have enacted laws criminalising it, other jurisdictions have yet to criminalise it. This paper focuses on the criminal aspects of marital rape and examines the laws regarding marital rape in South Africa and the general rape provisions in Nigeria. While marital rape is punishable under South African criminal law, it is not in Nigeria. In this paper, the provisions of the South African Criminal Law (Sexual Offences and Other Related Matters) Act of 2007, the Criminal Code Act, and the Penal Code Act – Nigeria in relation to rape and marital rape – are analysed. This paper also discusses the South African Sexual Offences Court, sentencing for rape in the selected countries, and relevant case law. It concludes that South Africa (SA) has a generally good framework with respect to rape and marital rape, but the country should work more on the strict application of the laws in place. It also suggests that Nigeria should establish a sexual offences court using the South African model and should amend the Criminal Law to expressly criminalise marital rape.

A Philosophical Analysis To Uncover The Meaning And Terminology Of Person In Indonesian Criminal Law Context

2017 ◽  
Vol 1 (1) ◽  
pp. 56
Author(s):  
Nani Mulyati ◽  
Topo Santoso ◽  
Elwi Danil
Keyword(s):  
Criminal Law ◽  
Sufficient Conditions ◽  
Criminal Code ◽  
Legal Person ◽  
Philosophical Approach ◽  
Legal Personality ◽  
Legal Subject ◽  
Long Time ◽  
Definition Of ◽  
Broad Meaning

The definition of person and non-person always change through legal history. Long time ago, law did not recognize the personality of slaves. Recently, it accepted non-human legal subject as legitimate person before the law. This article examines sufficient conditions for being person in the eye of law according to its particular purposes, and then, analyses the meaning of legal person in criminal law. In order to do that, scientific methodology that is adopted in this research is doctrinal legal research combined with philosophical approach. Some theories regarding person and legal person were analysed, and then the concept of person was associated with the accepted definition of legal person that is adopted in the latest Indonesian drafted criminal code. From the study that has been done, can be construed that person in criminal law concerned with norm adressat of the rule, as the author of the acts or omissions, and not merely the holder of rights. It has to be someone or something with the ability to think rationally and the ability to be responsible for the choices he/she made. Drafted penal code embraces human and corporation as its norm adressat. Corporation defined with broad meaning of collectives. Consequently, it will include not only entities with legal personality, but also associations without legal personality. Furthermore, it may also hold all kind of collective namely states, states bodies, political parties, state’s corporation, be criminally liable.

Historical Experience of Criminalization: to the Centenary of the Guiding Principles on Criminal Law of the RSFSR

2019 ◽  
pp. 31-35
Author(s):  
Ivan Kozachenko
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Historical Experience ◽  
Law System ◽  
Political Situation ◽  
Historical Method ◽  
Advantages And Disadvantages ◽  
Concept Planning ◽  
Guiding Principles ◽  
Definition Of

The creation of the Guiding Principles on the Criminal Law of the RSFSR of 1919 is studied taking into account extremely complicated internal and external political situation in the country at the beginning of the twentieth century. Using the methods of analysis, synthesis, as well as comparative and historical method, the author determines the significance of the Guiding Principles in the law system of the young Soviet state. Some key norms of the document are examined. In particular, the definition of criminal law is analyzed and its advantages and disadvantages are identified. It is noted that the definition of a crime was formulated too broadly, and more significant steps in criminalization of different acts were made with the adoption of the RSFSR Criminal Code of 1922. It is indicated which persons were not punished according to the Guidelines. Attention is drawn to the way in which such a method of protection as necessary defense was set forth in this act. The Guiding Principles are not without certain disadvantages: for example, the institution of complicity is not sufficiently disclosed, there is lexical redundancy in the definition of the concept «planning the offence». However, the discrepancies between the main provisions covered in the Guidelines are explainable and excusable, taking into account the historical situation at the time of their adoption. The analyzed document became the basis for Russian criminal law, and some of its provisions are still relevant.

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

2021 ◽  
pp. 136571272110022
Author(s):  
Jennifer Porter
Keyword(s):  
Western Australia ◽  
Common Law ◽  
South Australia ◽  
Judicial Discretion ◽  
Trial Judge ◽  
Important Policy ◽  
Oral Testimony ◽  
The Common ◽  
The Law ◽  
Confession Evidence

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

Killing through negligence and its distinction with other kinds of murder

2021 ◽  
Author(s):  
Vladimir Myslivyy ◽  
Angelina Mykyta
Keyword(s):  
Criminal Law ◽  
Human Life ◽  
Criminal Liability ◽  
Criminal Code ◽  
The State ◽  
Sufficient Information ◽  
Main Body ◽  
Common Features ◽  
Criminal Offenses ◽  
The Common

Problem setting. According to Art. 27 of the Constitution of Ukraine, everyone has an inalienable right to life, no one can be arbitrarily deprived of life, and the state, in turn, is obliged to protect human life. Protection of a person’s life, as a duty of the state, is manifested in the establishment of criminal liability, enshrined in Section II “Criminal offenses against life and health of a person” of the Criminal Code of Ukraine, who commit socially dangerous acts. whether there are criminal offenses and what punishments they should be committed. The distinction between crimes such as premeditated murder and negligent deprivation of another’s life is important, as criminal law theory still does not have sufficient information on this issue and does not have a complete list of features of the above crimes, but we tried to identify them in our article. Target of research. Deepening their knowledge on the caution of a person’s life due to inconsistency and drawing the line between possible offenses and conditional authority, clarifying the special characteristics of the perpetrator and the victim, outlining the essential features of the perpetrator and the victim, and researching the regulation of negligent proposal of a new version of the Criminal Code of Ukraine. Analysis of resent researches and publications. The theoretical basis for the study of the problem of murder through negligence are the works of legal scholars, in particular, M. Bazhanov, V. Borisov, S. Borodin, V. Glushkov, O. Gorokhovskaya, I. Zinchenko , V. Tyutyugin, O. Us, E. Kisilyuk, V. Kuts, M. Yefimov, S. Likhova, V. Stashis, V. Shablisty and others. Article’s main body. According to Art. 3 of the Constitution of Ukraine, man, his life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value. Given this constitutional provision, the legislator should pay special attention to the criminal law protection of human life and health as the most important public relations. So it is no coincidence that considering such encroachments as one of the most dangerous in the criminal law dimension, the legislator established criminal liability for their commission in Section II “Criminal offenses against life and health” of the Special Part of the Criminal Code of Ukraine. Due to the high public danger and the high prevalence of criminal offenses against human life and health, criminal law theory and law enforcement practice are under increasing scrutiny. Thus, the analysis of judicial practice in recent years shows that, for example, among all murders (Articles 117-119 of the Criminal Code of Ukraine) the number of persons convicted of deprivation of life due to negligence is about 15 percent annually. In our opinion, it is also advisable to analyze the concept of “murder” by comparing the common and distinctive features of the offenses referred to in Art. Art. 115 and 119 of the Criminal Code of Ukraine. According to scientific results, we can conclude that these offenses have many common features. It is possible to understand the common features and preconditions for the spread of these types of offenses. Conclusions and prospects for the development. A study of issues related to the criminal law analysis of murder through negligence and its difference from other types of murder, shows that these acts encroach on the identical object, which is “human life as a set of social relations.” Unfortunately, nowadays the dynamics of offenses committed in Art. Art. 115 and 119 is intensifying, so consideration of their delimitation and characterization of their features is very important. The study examines the main features of these types of crimes, as well as analyzes some provisions of national law and proposes some adjustments to them.

scholarly journals The Prejudicial Effects of "Reasonable Steps" in Analysis of Mens Rea and Sexual Consent: Two Solutions

2018 ◽  
pp. 933
Author(s):  
Lucinda Vandervort
Keyword(s):  
Sexual Assault ◽  
Personal Experience ◽  
Common Law ◽  
Criminal Code ◽  
Decision Makers ◽  
Sexual Consent ◽  
Mens Rea ◽  
State Of Mind ◽  
Definition Of ◽  
Is Failure

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about whether a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by section 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded in their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable,” given what the accused knew, the legal definition of consent in section 273.1 is easily overlooked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. The result is failure to enforce the law. The author proposes: (1) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and (2) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent.

scholarly journals GOOD FAITH IN FRANCHISE CONTRACT

2020 ◽  
Vol 5 (19) ◽  
pp. 118-127
Author(s):  
Nurli Yaacob ◽  
Nasri Naiimi
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Relational Contracts ◽  
Law System ◽  
Freedom Of Contract ◽  
Term Contract ◽  
The Common ◽  
Definition Of ◽  
The Right

Good faith has been defined as justice, fairness, reasonableness, decency, taking no chances, and so on. The concept of good faith has long been rooted in contract law under the jurisdiction of Civil law, although the definition of it is still debated until today. However, the view of the Common Law tradition does not recognize the concept of good faith as long as the contract is entered into with the freedom of contract and both parties abide by the terms of the contract. Given that a franchise contract involves a long-term contract and always been developed, it is impossible to define both rights and responsibilities base on express terms only. As such, the franchise contract gives the franchisor the right to exercise its discretion in executing the contract. It is in this context that the element of good faith is very important to ensure that the franchisor does not take advantage of the franchisee and that the business continues to prosper. Therefore, the objective of this article is to discuss the concept of good faith in a franchise contract. The findings show that the common law system that initially rejected the application of the concept of good faith also changed its approach and began to recognize the concept of good faith as it is very important for relational contracts such as franchise contracts.

scholarly journals RESPONSIBILITY FOR TRAFFICKING IN PERSONS UNDER RUSSIAN CRIMINAL LAW: ISSUES OF LEGISLATIVE TECHNOLOGY AND LAW

2020 ◽  
Vol 24 (4) ◽  
pp. 1078-1099
Author(s):  
Nina Yu. Skripchenko
Keyword(s):  
Human Trafficking ◽  
Criminal Law ◽  
Criminal Code ◽  
Social Consequences ◽  
Trafficking In Persons ◽  
Illegal Migration ◽  
Scientific Analysis ◽  
Analysis And Synthesis ◽  
General Scientific ◽  
Definition Of

Today, no state in the world can say with confidence that it does not face the problem of human trafficking as it does not depend on the geopolitical position of the country, nor on the socio-economic situation. The negative social consequences of the transformations in Russia at the end of the last century determined not only its transit destination during the illegal migration of labor, but also the role of the sender and recipient of human commodity (mainly women and children) intended for exploitation (i.e. including sexual), surrogacy, removal of organs and tissues. Trying to adhere to the international definition of human trafficking as much as possible and drawing on the existing experience of regulation, the Russian legislator enshrined the norm in the Criminal Code (Article 1271) containing editorial flaws that impeded its implementation. The purpose of the study is to formulate proposals to address the deficiencies identified during the study of the legislative definition of trafficking in persons, which cause difficulties in enforcement. The methodological basis is constituted by general scientific (analysis and synthesis, dialectics) and private scientific research methods (system-structural, formal-legal, logical, linguistic). The paper notes the terminological difficulties associated with the inclusion of Convention norms in the system of Russian law. Noting the need to establish enhanced guarantees of child safety, the author does not see the need for independent criminalization of trafficking in minors. By identifying technical and legal shortcomings in the definition of human trafficking and human exploitation, the author suggests ways to solve them by reforming the criminal law and judicial interpretation at the level of the Plenary Session of the Supreme Court of the Russian Federation.

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