scholarly journals Prohibition to approach a certain distance and / or to certain persons, to be in a certain place as a measure of a criminal nature (on the example of the Penal Code of the Republic of Poland)

2021 ◽  
Vol 2 (16) ◽  
pp. 54-67
Author(s):  
Olesia Mykhailivna Cheban
Keyword(s):  
Domestic Violence ◽  
Supreme Court ◽  
Criminal Code ◽  
Penal Code ◽  
Place Of Residence ◽  
Criminal Proceedings ◽  
Legal Nature ◽  
The Supreme Court ◽  
Specific Position ◽  
The Republic

The article analyzes the provisions of the Polish Penal Code in terms of establishing a ban on being in certain environments or places, contact with certain people, approaching certain persons or leaving a special place of residence without the consent of the court, as a kind of criminal measure. Sais about  prohibitions to hold a specific position, engage in a certain profession or carry out certain types of economic activity. In the Polish Penal Code, the analyzed prohibitions apply to the perpetrator in the case of an intentional crime combined with violence, and are binding from the entry into force of the court decision in the criminal case. It is known that in Ukraine there are special measures to combat domestic violence in the form of an urgent injunction against the offender and a restrictive injunction against the offender. In its legal positions, the Supreme Court revealed the essence (legal nature) of the restrictive order as a temporary measure of restraint, which is not a measure of punishment for a person. The Supreme Court also justified the legitimacy of the restraining order in the form of a temporary prohibition on the offender to stay and approach real estate, even if he is its co-owner, because he committed domestic violence against relatives. Measures in the restrictive order in relation to the offender are taken to decide on the qualification of his actions and the decision on him in criminal proceedings. However, the danger of continuing or re-committing domestic violence, the occurrence of serious consequences for the victim remains after the case in court. Therefore, prohibitions to approach the victim at a certain distance, to be in a place of residence should not lose their force and relevance, and in turn, begin to play a preventive role as a measure of criminal law. The author proved the importance of expanding the list of «other measures of a criminal nature» by including a ban on approaching a certain distance and / or to certain persons, a ban on being in a certain place in Section XIV of the General Part of the Criminal Code of Ukraine.

scholarly journals Problem of criminal legal qualification of domestic violence in law enforcement practice

2021 ◽  
Vol 2 (16) ◽  
pp. 139-161
Author(s):  
Anhelina Yevhenivna Oliinychenko
Keyword(s):  
Domestic Violence ◽  
Supreme Court ◽  
Criminal Code ◽  
Appropriate Behavior ◽  
Legal Response ◽  
Criminal Offenses ◽  
Legal Nature ◽  
The Supreme Court ◽  
Criminal Procedure Law ◽  
Restrictive Measures

Domestic violence is a phenomenon that can take the form of a socially dangerous act and be qualified as a crime under Art. 126-1 of the Criminal Code of Ukraine and other articles of the Criminal Code of Ukraine. It is the correctness of the criminal legal qualification of domestic violence that became the subject of our study.              The lack of systematic interpretation of Art. 126-1 of the Criminal Code of Ukraine leads in practice to the fact that the courts decide completely differently on the qualification of actions of a person. After all, domestic violence can be a manifestation of both an administrative offense and a criminally punishable act. That makes it impossible to further apply the restrictive measures of a criminal legal nature, enshrined in Art. 91-1 of the Criminal Code of Ukraine. Such situation has already become the basis for resolution in the order of review by higher courts and formation of a position on the most problematic aspects by the Supreme Court of Ukraine. In particular, in order to avoid the prohibited double conviction or punishment, the proceedings must be combined on a comprehensive basis and form a single whole. This means not only that the goal and the means used to achieve it must complement each other in nature and be linked in time, but also that the possible consequences of such legal response to appropriate behavior must be proportionate and predictable. for the persons to whom they relate.             Thus, the purpose of our study is to form a list of issues for the correct criminal legal qualification of actions under Art. 126-1 of the Criminal Code of Ukraine, for the correct separation from the administrative offense under Art. 173-2 of the Code of Administrative Offenses, as well as from other criminal offenses related to domestic violence. The task is to study the conclusions of the Supreme Court of Ukraine, to analyse the case law, to analyse the research conducted by non-governmental international organizations, as well as to analyse the positions of the doctrine of criminal and criminal procedure law on this issue.  

The Nature of the Institution of Confiscation of Property and its Application

2021 ◽  
pp. 93-104
Author(s):  
Vladimir K. Andrianov ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Liability ◽  
Research Process ◽  
Criminal Code ◽  
Difficult Problem ◽  
Criminal Proceedings ◽  
Legal Nature ◽  
The Supreme Court ◽  
The Russian Federation

Legislative reform in respect of forfeiture, having returned it in 2006 in the Criminal Code of the Russian Federation, but in an altered status – other measures of a criminal-legal nature – after its exclusion in 2003 as a form of punishment, made a confiscation as one of the most difficult problem and controversial in the doctrine of criminal law. This is due not only to the attribution of confiscation of property to the category of other measures of a criminal-legal nature as in itself still insufficiently defined and highly controversial, but also by the inter-sectoral nature of the problem of confiscation, regulated not only by the norms of criminal, but also by criminal procedural legislation, as well as interconnected with measures of civil law – the return of property to the rightful owner, and compensation for any damage. Understanding the complexity of the legal nature of the confiscation of property lead to quite frequent changes in the Chapter 151 of the Criminal Code of the Russian Federation (19 of federal laws on amendments), as well as cause a lot of questions of their use in practical lawyers. This is evidenced by the resolution adopted by the Plenum of the Supreme Court of the Russian Federation of June 14, 2018 No. 17 «On some issues related to the use of confiscation of property in criminal proceedings». The target of this article is to study the confiscation of property as another measure of a criminal-legal nature by resolving theoretical and applied issues of the application of Chapter 151 of the Criminal Code of the Russian Federation. An important role in the research process was played by work on the problems of other measures of a criminal-legal nature, confiscation of property, as well as published court practice. The methodological basis of the study were the principles of the dialectical method of cognition, as well as general scientific and private scientific methods (sociological, system-structural and formal-logical) methods. In the proposed publication, based on the analysis of special scientific literature and legal positions of the Supreme Court of the Russian Federation, such complex issues as the legal nature of confiscation in terms of its generic and specific characteristics, correlation with criminal punishment and criminal liability are considered, and specific recommendations are given on topical issues of application of the Chapter 151 of the Criminal Code of the Russian Federation.

scholarly journals Disparitas Penuntutan Pada Perkara Tindak Pidana Penganiayaan dalam Sistem Pemidanaan di Indonesia

2019 ◽  
Vol 1 (1) ◽  
pp. 66-78
Author(s):  
Benny Leonard Saragih ◽  
Ediwarman Ediwarman ◽  
Muaz Zul
Keyword(s):  
Supreme Court ◽  
Criminal Code ◽  
Public Prosecutor ◽  
Internal Factors ◽  
Legal Norms ◽  
The Public ◽  
Criminal Offenses ◽  
The Supreme Court ◽  
The Republic ◽  
Substantive Law

Difference in punishment or sentencing disparity is basically a natural thing because it can be said almost no case that is really the same. Disparity becomes a problem when the range of the sentence imposed differences between similar cases so large, giving rise to injustice and can give rise to suspicions in the community. Disparities in the Criminal (disparity of sentencing) is not the same as the application of criminal offenses against the same (same offense) or the criminal acts that are dangerous to be compared (offenses of comparable seriousness) without clear justification. Based on Law No. 16 of 2004 which replaced Law No. 5 of 1991 About the Prosecutor of the Republic of Indonesia is an institution in the field of prosecution of the main authority of the public prosecutor act prosecution about what is meant by the prosecution as well as the reference to the provisions of Article 1 point 7 and Article 137 Law No. 8 of 1981 on the Law of Criminal Procedure Code (Criminal Code). Research Methods in writing this thesis carried out by the method of normative law, namely analyzing and searching for answers to the problems raised by the substantive law / legal norms contained in the rules of law, the Supreme Court Regulation (PERMA), the Supreme Court Circular, and etc. Factors that cause the disparity criminal offense namely Legislation Provisions factors, internal factors and external factors.

scholarly journals Problems of proving guilt in criminal cases in connection with tax evasion

2019 ◽  
pp. 170-176
Author(s):  
V. V. Dubrovin
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Tax Evasion ◽  
Criminal Code ◽  
Control Measures ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
The Supreme Court ◽  
The Russian Federation

The establishment of an intentional form of guilt and its specific type is mandatory for the implementation of the provisions of Art. 8 of the Criminal Code. In criminal proceedings in connection with tax evasion, a direct intent should be established in the act of the accused, otherwise the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 No. 64 “On the practice of criminal law on liability for tax offenses”. One of the proofs of direct intent in the act of the accused may be the decision of the tax authority to prosecute for the tax offense, made according to the results of tax control measures (in-house or on-site tax audits). In the event that it establishes an imprudent form of the taxpayer’s guilt in committing a tax offense, in proving the guilt of the accused in the course of criminal proceedings there may be an intractable contradiction.

scholarly journals Criminal Accountability for Corruption Actors in the Form of Concursus Realist

2020 ◽  
Vol 1 (2) ◽  
pp. 325-332
Author(s):  
Redentor G A Obe ◽  
Indah Sri Utari
Keyword(s):  
Supreme Court ◽  
Criminal Liability ◽  
Criminal Code ◽  
State University ◽  
Legal Basis ◽  
Research Subjects ◽  
Design Data ◽  
Library Research ◽  
The Supreme Court ◽  
The Republic

The purpose of this study is to describe and analyze the criminal liability arrangements for the perpetrators of corruption in the form of concurrent acts, finding juridical reasons to the extent to which corruption in the form of concurrent acts can be justified. This research method uses a qualitative approach with normative juridical law design. Data collection techniques using library research Subjects library research law faculty of Semarang State University. Data analysis techniques: (1) presentation, (2) data reduction, and (3) collection and verification. The results of the study: (1) the form of criminal liability from the perpetrators of corruption in the form of a joint act is to follow the criminal procedure in the Criminal Code by dropping the absorption system which is made worse by the regulation contained in the Constitutional Court's decision in the results of the criminal chamber meeting of the Supreme Court of the Republic of Indonesia Tangerang No 10 concerning the application of concursus teachings precisely in the parallel act of corruption. Conclusions of the study that the doctrine of concursus results of the criminal chamber meeting of the Supreme Court of the Republic of Indonesia Tangerang has a legal basis that serves as a guideline or legal basis so that the action does not go outside the lines of statutory provisions in the implementation of decision making in imposing penalties for the perpetrators of acts corruption in the form of a parallel act.

scholarly journals Ajaran Turut Serta Tindak Pidana Korupsi

2019 ◽  
Vol 3 (1) ◽  
pp. 35-52
Author(s):  
Harry Arfhan ◽  
Mohd. Din ◽  
Sulaiman Sulaiman
Keyword(s):  
Supreme Court ◽  
Legal Regulation ◽  
Criminal Code ◽  
Public Prosecutor ◽  
Criminal Offense ◽  
The Public ◽  
The Supreme Court ◽  
The Law ◽  
The Republic ◽  
Banda Aceh

Penyertaan pada dasarnya diatur dalam pasal 55 dan 56 KUHP yang berarti bahwa ada dua orang atau lebih yang melakukan suatu tindak pidana atau dengan perkataan ada dua orangatau lebih mengambil bahagian untuk mewujudkan suatu tindak pidana. Penyertaan di dalam Undang-Undang Pemberantasan Tindak Pidana Korupsi yaitu Undang-Undang Nomor 31 Tahun 1999 jo Undang-Undang Nomor 20 tahun 2001 disebut sebagai pembantuan.Dalam putusan Kasasi Mahkamah Agung Nomor : 1769 K/PID.SUS/2015 menyatakan bahwa Terdakwa I Indra Gunawan Bin Alm. Saleh tersebut tidak terbukti secara sah dan menyakinkan bersalah melakukan perbuatan sebagaimana yang didakwakan dalam semua dakwaan Penuntut Umum dan Menyatakan Terdakwa II Irfan Bin Husen telah terbukti secara sah dan meyakinkan bersalah melakukan tindak pidana “Turut Serta Melakukan Korupsi”. Majelis Hakim Judex Factie Pengadilan Tinggi/Tipikor Banda Aceh dalam memeriksa dan mengadili perkara Aquo telah salah dalam menerapkan hukum atau suatu peraturan hukum tidak diterapkan atau diterapkan tidak sebagaimana mestinya, yaitu mengenai penerapan hukum pembuktian sehingga harus dibatalkan oleh Mahkamah Agung Republik Indonesia.The participation is basically regulated in articles 55 and 56 of the Criminal Code, which means that there are two or more people who commit a crime or say that there are two or more people taking part to realize a crime. The participation in the Law on the Eradication of Corruption Crime namely Law Number 31 of 1999 in conjunction with Law Number 20 of 2001 is referred to as assistance. In the decision of the Supreme Court Cassation Number: 1769 K / PID.SUS / 2015 stated that Defendant I Indra Gunawan Bin Alm. Saleh is not proven legally and convincingly guilty of committing an act as charged in all charges of the Public Prosecutor and Stating Defendant II Irfan Bin Husen has been proven legally and convincingly guilty of committing a criminal offense "Also Participating in Corruption". Judex Factie Judge of the High Court / Corruption Court in Banda Aceh in examining and adjudicating the case of Aquo has been wrong in applying the law or a legal regulation was not applied or applied improperly, namely regarding the application of verification law so that it must be canceled by the Supreme Court of the Republic of Indonesia.

scholarly journals THE NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN “ON THE PRACTICE OF THE COURTS APPLYING THE CRIMINAL LAW IN CASES OF CRIMES RELATED TO VIOLATION OF THE RULES OF THE ROAD AND THE OPERATION OF VEHICLES” DATED JUNE 29, 2011, AND THE CRIMINAL LAW

2020 ◽  
pp. 69-75
Author(s):  
K.A. Bakishev
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Criminal Law ◽  
Criminal Code ◽  
Criminal Offence ◽  
The Road ◽  
Regulatory Decision ◽  
The Supreme Court ◽  
Sufficient Degree ◽  
The Republic

The Concept of the legal policy of the Republic of Kazakhstan for the period from 2010 to 2020emphasizes that the criminal law must meet the requirements of legal accuracy and predictability ofconsequences, that is, its norms must be formulated with a sufficient degree of clarity and based on clearcriteria that exclude the possibility of arbitrary interpretation provisions of the law. Meanwhile, an analysisof the Criminal Code of the Republic of Kazakhstan shows that some articles on liability for road transportoffences are designed poorly. For example, Art. 346 of the Criminal Code of the Republic of Kazakhstan ischaracterized by a combination of formal and qualified corpus delicti, as well as two forms of guilt — intentand negligence; in Art. 351 of the Criminal Code of the Republic of Kazakhstan, the circle of subjects of thecriminal offence was significantly reduced due to the unjustified exclusion of drivers of non-mechanicalvehicles. As a result, the Supreme Court of the Republic of Kazakhstan in the regulatory decree «On thepractice of the courts applying the criminal law in cases of crimes related to violation of the rules of theroad and the operation of vehicles’ of June 29, 2011 made a number of errors and contradictions that led todifficulties in qualifying the criminal offence and the appointment criminal punishment. Taking into accountthe law-enforcement and legislative experience of Kazakhstan and other countries in the field of ensuringtraffic safety, the author proposes amendments and additions to the named regulatory decision of theSupreme Court of the Republic of Kazakhstan to improve its quality and improve law enforcement practice.

scholarly journals The Theory of Criminal Law Should Not Be Reduced to the Analysis and Criticism of Criminal Legislation

2019 ◽  
Vol 14 (1) ◽  
pp. 121-140
Author(s):  
Anatoly Naumov
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Constitutional Court ◽  
Legal Nature ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Criminal Legislation ◽  
Principle Of Legality

In both normative and sociological senses criminal law includes three components — criminal legislation, judicial practice, and criminal law doctrine, and the development of this branch of law is possible only in their unity. The criminal law doctrine is to a certain extent superior to the other components of the "triad" and involves the development of the branch’s principles, goals and objectives. At the same time, the improvement of criminal law is not the only goal of the theory of criminal law. It should not be limited only to criticism of the current legislation and proposals for its improvement. However, the vast majority of modern domestic criminal law publications, such as monographs, articles in legal periodicals, dissertations, are devoted to criticism of the current Criminal Code of the Russian Federation. Indeed, the current criminal law is not perfect, but the "imbalance" of research into the "law-making" side significantly reduces the scope of criminal law doctrine. And there will always be demand for theoretical studies on the analysis of the subject and method, system and objectives of criminal law, its sources.Debatable, for example, still is the issue of the legal nature of the decisions of the Plenum of the Supreme Court of the Russian Federation and, in particular, the judgments of the Constitutional Court of the Russian Federation. The explanations of the Plenum of the Supreme Court are a special kind of judicial interpretation and a fairly reliable tool for the courts to understand "the letter of the criminal law" and it’s applicability to the particular case. As for the assessment of the legal nature of the judgments of the Constitutional Court of the Russian Federation, the criminal law doctrine often fails to notice that they touch upon the methodological problems of the theory of criminal law. In relation to a number of criminal law prohibitions, judgments of the Constitutional Court of the Russian Federation are a source of criminal law, along with the Criminal Code. The Constitutional Court of the Russian Federation specified the most important principle of criminal law — the principle of legality and clarified the characteristics of criminality of socially dangerous acts prohibited by criminal law, which is directly related to the issue of criminal liability. In this sense, the Constitutional Court formulated a new and important addition to the content of the principle of legality — the certainty of criminal law rules, and, first of all, the criminal law prohibitions. Thus, the judicial authority overtook the criminal law doctrine in solving one of the most important issues for criminal proceedings.

Rozważania o społecznej szkodliwości czynu na podstawie art. 497a Kodeksu wyborczego. Teoria i praktyka

2021 ◽  
Vol 1(162) ◽  
pp. 147-159
Author(s):  
Radosław Zych
Keyword(s):  
Supreme Court ◽  
European Parliament ◽  
Penal Code ◽  
Social Harm ◽  
The Supreme Court ◽  
The Republic ◽  
Specific Part

The purpose of this article is to answer the question whether the assessment of the degree of social harm of offences against elections can be determined by their hierarchy established on the basis of the systematics of the specific part of the Penal Code. The aim of the study is to show the phenomenon of carrying away ballot papers and to assess the degree of social harm of the act. The reports of the National Electoral Commission on the 2019 elections to the European Parliament and on the 2019 elections to the Sejm and Senate of the Republic of Poland were examined with regard to improper handling of the ballot papers. In addition, the decision of the Supreme Court of 2019 resolving the electoral protest based on the allegation of violation of Article 497a of the Electoral Code was analysed.

scholarly journals KAJIAN HUKUM KEWENANGAN PENYELIDIKAN ANTARA KEPOLISIAN, KPK DALAM PEMBERANTASAN PIDANA KORUPSI DARI KELEMBAGAAN NEGARA

2020 ◽  
Vol 17 (1) ◽  
Author(s):  
Sumiaty Adelina Hutabarat
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Criminal Code ◽  
Law Enforcement Agencies ◽  
The Supreme Court ◽  
The Law ◽  
The Republic ◽  
The Right ◽  
National Police ◽  
The Relationship

<p>There are two law enforcement agencies combating corruption, namely the Corruption Eradication Commission (KPK) and the Police, having the same authority, but in implementing authority there are differences, for example in the application of laws that govern the two institutions.The problem that becomes the study of this research is how the problem of the existence of the KPK as an institution to eradicate corruption has the authority regulated in RI Law No. 30 of 2002 concerning the Corruption Eradication Commission, whose authority lies with the Police regulated in RI Law No. 2 of 2002 concerning the National Police of the Republic of Indonesia which refers to the Criminal Code The results of the study showed that the resolution of the dispute between the Police and the Corruption Eradication Commission in the investigation of corruption was carried out by coordinating the Corruption Eradication Commission and the Police in Corruption Criminal Investigations. Law number 30 of 2002 concerning the Corruption Eradication Commission regulates the relationship between the performance of the KPK and the Police regarding investigations, investigations and prosecutions.Settlement of authority disputes between the Police and the KPK should be the authority of the Supreme Court, due to judicial review under the Supreme Court Law. The right to test the law is the application of a balanced and balanced government. The Corruption Eradication Commission was formed by the Law 30/2002 whereas the Indonesian Police was formed by the 1945 Constitution, article 30 paragraph 4.</p><p><strong>Keywords : <em>Authority, investigation, KPK</em></strong></p><p><strong> </strong></p>

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