scholarly journals PRAWNOKARNA ODPOWIEDZIALNOŚĆ SĘDZIEGO ŹLE WYPEŁNIAJĄCEGO SWOJE OFFICIUM

2017 ◽  
Vol 4 (1) ◽  
pp. 27
Author(s):  
Tomasz Palmirski
Keyword(s):  
Criminal Liability ◽  
Death Sentence ◽  
Innocent Person ◽  
Criminal Cases ◽  
Aulus Gellius ◽  
The Law ◽  
The One ◽  
Made In

The Criminal Liability of a Judge Wrongly Fulfilling His officiumSummaryBribing judges was an indispensable element of the lawsuits, especially criminal, which is reflected both in the acts issued to prevent bribery and the literature.The oldest regulations concerning this issue are included in the Law of the XII Tables, which were handed down by Aulus Gellius. It is evident from this Law that index or arbiter who adjudged in favour of the person from whom he received money, was sentenced to death. The issue of corruption appears also in the sources of the late republic. It is evident that the attempts to fight against the judges’ corruption were made in a series of acts, among others, in lex Sempronia ne quis iudicio circumveniretur. This act concerned only those who had the senatorial status and who sentenced the accused not because he was guilty but because they were bribed. In the period of the early principate and probably until the end of the classical law era, the liability of the judge was regulated above all by two acts: lex Cornelia de sicariis and lex Iulia de repetundis. However, on the basis of the passages referring to the scope of applying lex Cornelia in the principate period it appears that it is impossible to point the particular stages of the development of a corruptible judge’s liability. It can be only supposed that the original scope of the act’s applicability to the cases threatened with a death sentence in which the acquittal of the accused was adjudged, was later broadened to other crimes. Whereas, on the basis of legis Iuliae the one who, after taking a bribe, sentenced, acquitted or gave yet another verdict in compliance with the briber’s wish, was liable to a penalty. It should be stressed that this law referred not only to judges in criminal cases but also in civil ones (iudexzs well as arbiter). According to Paulus who comments on the act, lex Cornelia de sicariis provided deportation to an isle and confiscation of the property, whereas the penalty provided for in lex Iulia de pecuniis repetundis, as reported by Macer, was an exile. In case of more serious crimes such as accepting property benefit and passing a death sentence to an innocent person, the penalty was death or deportation to an isle. Iudices pedanei provided for dismissal from the curia to which the judge belonged to or an exile. In the period of principate lex Cornelia testamentaria nummaria (de falsis) dated 81 BC, issued by Sulla, was applied to the liability of a judge. This act originally referred to cases of forging wills and coins and later also to cases of giving and receiving property benefits to present false evidence and bribe a judge. Lex Cornelia testamentaria provided for a death sentence in case of sentencing humiliores. Honestiores were treated in a more mild way since they were sentenced to the confiscation of property and exile with deprivation of citizenship. 

scholarly journals Penegakan Hukum Pidana Terhadap Anak Yang Terjerat Perkara Pidana Melalui Diversi (Studi Di Polrestabes Medan)

2020 ◽  
Vol 3 (1) ◽  
pp. 78-84
Author(s):  
Akalafikta Jaya ◽  
Triono Eddy ◽  
Alpi Sahari
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Juvenile Justice System ◽  
Criminal Liability ◽  
Criminal Case ◽  
Criminal Cases ◽  
Criminal Convictions ◽  
Criminal Offenses ◽  
The Law

In the past, the punishment of children was the same as the punishment of adults. This causes the psychological condition of children ranging from investigation, investigation and trial to be disturbed because it is often intimidated by law enforcement agencies. Under these conditions, Law No. 11 of 2012 concerning the Juvenile Justice System was born. One of the reforms in the Child Criminal Justice System Law requires the settlement of a child criminal case by diversion. Based on the results of research that the conception of criminal offenses against children in conflict with the law in Indonesia is different from criminal convictions to adults. Children are given the lightest possible punishment and half of the criminal convictions of adult criminal offenses. That criminal liability for children who are ensnared in a criminal case according to the Law on the Criminal Justice System for Children is still carried out but with different legal sanctions from adults. Criminal imprisonment against children is an ultimumremedium effort, meaning that criminal imprisonment against children is the last legal remedy after there are no other legal remedies that benefit the child. That the concept of enforcement of criminal law against children caught in criminal cases through diversion is in fact not all have applied it. Some criminal cases involving children as the culprit, in court proceedings there are still judges who impose prison sentences on children who are dealing with the law.

scholarly journals Analisis Pertanggungjawaban Tenaga Medis yang melakukan Tindak Pidana Malpraktek menurut UU Nomor 36 Tahun 2009 Tentang Kesehatan

2015 ◽  
Vol 1 (1) ◽  
Author(s):  
Suwari Akhmaddhian
Keyword(s):  
Health Worker ◽  
Criminal Law ◽  
Defense Response ◽  
Health Personnel ◽  
Criminal Liability ◽  
Positive Law ◽  
The Law ◽  
Omission Errors ◽  
Made In

A defense against criminal liability of a health worker who commit criminal acts of malpractice can be argued that the criminal liability lies in the form of omission errors or omissions when power kesehatantersebut their profession . As a result of mistakes resulting in death or injury , an element of health personnel mistakes made in this case is the gross negligence or culpa lata which will be requested a defense response of the consequences of his actions . In the application of the criminal law against the perpetrators of malpractice , the application of positive law for perpetrators of malpractice contained in Article 361 and Article 359 of the Code of Criminal Law and Law no . 36 of 2009 on Health . But in the application of these articles dilemma arises in understanding the elements of negligence which measures whether the health worker negligence or not in terms of their profession , to the order of the Book  of the  Law is  being revised  Criminal Law should  regulate the issue of negligence is regulated in detail and.clear.Keywords : Health , Criminal , Malpractice.

scholarly journals Czy idea tak zwanej wtórnej legalności się broni?

2017 ◽  
Vol 43 ◽  
pp. 401-420
Author(s):  
Jarosław Majewski
Keyword(s):  
Legal Culture ◽  
Social Benefits ◽  
Final Conclusion ◽  
Systematic Analysis ◽  
Legal Norms ◽  
Basic Assumptions ◽  
The Social ◽  
The Law ◽  
The One ◽  
Made In

Is the idea of so-called “secondary legality” defensible?The aim of the study is critical analysis of the idea of so-called “secondary legality” of an act used by some jurists to explain types of behaviour falling into the category of circumstances excluding lawlessness of an act justification, namely to define the relation between such types of behaviour and the legal system as a whole, and the various sanctioned norms that are part of the system. First, the author examines the relation between the assumption that a type of behaviour which falls within the category of circumstances excluding lawlessness of an act constitutes a legal transgression of the sanctioned norm, and the basic assumptions made in the Polish legal culture concerning the process of creation and application of the law as well as its systematic analysis. He demonstrates that consistent use of the secondary legality category would require a considerable remodelling of these assumptions, above all, rejection of the assumption that legal norms are introduced to be met as well as all consequences stemming from this assumption as well as abandonment of the approach to the law as a set of legal norms that is internally cohesive. Next, the author analyses the internal aspects of the idea of secondary legality of an act. He demonstrates that it encompasses contradictory statements: on the one hand that justifi able behaviour constitutes socially harmful, negative and thus a typical attack on legal interest, and on the other hand that the social benefits ultimately outweigh losses in the case of justifiable behaviour. All the above justifies the author’s final conclusion that the category of secondary legality of an act is not useful.

Compulsory Educational Measures

2021 ◽  
pp. 71-85
Author(s):  
Pudovochkin Yu. E. ◽  
Keyword(s):  
Juvenile Offenders ◽  
Juvenile Justice ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Punishment ◽  
Criminal Cases ◽  
Documentary Analysis ◽  
Application Procedure ◽  
The Law ◽  
Definition Of

Problem Statement. Improvement of juvenile justice presupposes active and priority application of alternative measures to criminal punishment. Such, according to the Criminal Code of Russia, are compulsory educational measures, which are imposed in the order of exemption from criminal liability or from criminal punishment. Their proper application implies a clear definition of the content of educational measures, clarification of the order of their appointment and execution. Nevertheless, these matters are not fully regulated in the law, which poses a inconsistent practice of their application and ultimately reduces the effectiveness of juvenile justice. In this regard, the task of concretizing the content of compulsory educational measures is seen as urgent. Goals and Objectives of the Study. Specification of the normative prescriptions that define the content of compulsory educational measures and the determination on this basis of the main directions for improving the application practice of the provisions of Art. 90 and Art. 92 of the Criminal Code of the Russian Federation. Methods. Formal-logical analysis of the legal acts that determine the content, application procedure and execution of educational measures; study and critical assessment of literature on the research topic; statistical analysis of judicial practice; documentary analysis of court files in criminal cases. Results, Summary Conclusions. The list of compulsory educational measures established by the law is adequate to the tasks of correcting juvenile offenders and preventing crimes on their part. However, improving the quality of justice in criminal cases involves: disclosure of the content of such a measure of influence as a warning in the text of a judicial act; unification of ideas about the state body, under the supervision of which minors can be transferred and the recognition as such of the territorial commission on minors; the definition of such a measure as the imposition of the obligation to make amends for the harm caused analogously to other situations of exemption from liability and the use of this measure as a backup; normative establishment of the terms for the application of such measures of influence as warning and imposition of the obligation to make amends for the harm caused; further study of regional differences in the enforcement of compulsory educational measures.

Training Children for Armed Conflict – Where Does the Law Stand?

2014 ◽  
Vol 14 (3) ◽  
pp. 588-618 ◽  
Author(s):  
Elijah Oluwatoyin Okebukola
Keyword(s):  
Armed Conflict ◽  
Criminal Liability ◽  
Child Soldiers ◽  
The Other ◽  
Other Hand ◽  
Legal Regimes ◽  
The Law ◽  
Training Child ◽  
The One

This article considers the question of criminal liability for training child soldiers. None of the legal instruments prohibiting recruitment and use of child soldiers expressly relates to training child soldiers. This raises the question, on the one hand, whether a trainer can be held liable for training as a distinct offence from recruiting or using child soldiers. On the other hand, it raises the question whether a trainer is necessarily liable for recruitment or use of child soldiers. In an attempt to answer these questions, this article highlights the distinct factual and legal differences between recruitment, training and use of child soldiers. This exercise demonstrates that the law is not clear on the criminal liability of a trainer especially if the trainer is not factually involved in recruitment or use of child soldiers. The article concludes that the express clarification of the nature and extent of criminal liability for training child soldiers will improve the legal regimes for the protection of children in armed conflict.

scholarly journals Genesis of regulation of special forfeiture in Ukraine

2021 ◽  
pp. 18-23
Author(s):  
Vadym SAMOILOV
Keyword(s):  
Law Enforcement ◽  
Criminal Liability ◽  
Legal Regulation ◽  
Criminal Code ◽  
Special Part ◽  
General Part ◽  
The Law ◽  
Second Period ◽  
Current Stage ◽  
Made In

Introduction. This paper analyzes the development of norms on the implementation of special forfeiture in Ukraine since its independence. The purpose of the paper is determining the main periods of development of legal regulation of special forfeiture in Ukraine and highlighting the main features of each period. Results. According to the criterion of development of features of structural placement of norms on special forfeiture in the Criminal Code of Ukraine, three main periods of regulation of the specified measure of criminal character are allocated. The main features of the first period of regulation of special forfeiture, which is the regulation of the implementation of the specified measure of criminal nature at the level of norms of the Special Parts of the Criminal Codes of Ukraine of 1960 and 2001, are characterized. The main problems concerning the law enforcement of the rules on special forfeiture, which arose in connection with the legislative approach to special forfeiture at this stage, are described. The peculiarities of the second period of development of regulation of special forfeiture are described, during which the latter was carried out at the level of both the General Part of the Criminal Code and its Special Part. The conflicts between the provisions of the General and Special Parts of the Criminal Code regarding special forfeiture that arose at this stage are described, as well as some inconsistent legislative steps to amend the provisions of the law on criminal liability relating to special forfeiture. The main features of the current stage of legal regulation of special forfeiture are described. The problems of making changes to the legislation related to the adoption of laws that do not take into account the peculiarities of the development of legal regulation of special forfeiture are described. Conclusion. Relevant conclusions have been made, in particular, that special forfeiture, contrary to stereotypical views, is not a fundamentally new (implemented over the last decade) measure of a criminal nature in the criminal law of Ukraine. The stages of development of norms on special forfeiture are singled out. The chronological boundaries of each of the stages are set.

Eichmann’s Mistake: The Problem of Thoughtlessness in International Criminal Law

2020 ◽  
Vol 33 (1) ◽  
pp. 145-181
Author(s):  
Itamar Mann
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Activity ◽  
International Criminal Law ◽  
Criminal Cases ◽  
Legal Rules ◽  
Normal Character ◽  
Mass Atrocity ◽  
The Law ◽  
The One

Atrocities are often unprecedented and identifying them therefore may require moral and political judgement, not only the application of legal rules. Consequently, potential defendants charged for perpetrating them may be genuinely unable to recognize the law that prohibits their criminal activity. Starting from its classical treatment in Hannah Arendt’s Eichmann in Jerusalem, this problem has perplexed scholars who have noted the seemingly normal character of defendants in mass atrocity cases. In disagreement with other scholars in the area, I argue for a recognition of a “mistake of law”? defense in international criminal law. The Article demonstrates the stakes of the claim through three hypothetical international criminal cases with different political underpinnings, all pertaining to burning contemporary concerns: cases against individuals responsible for the enormous risks of climate change; against abusers of migrants in the context of border enforcement; and against individuals responsible for the termination of pregnancies in abortion clinics. I argue for a dual approach: on the one hand, prosecutors and judges must constantly leave open the possibility of a radical departure from extant doctrine and precedent in charging individuals. On the other, they must recognize that defendants may reasonably not be able to recognize the law qua law, especially when such departures occur. The internal tension between these two imperatives sheds light on the predicament of international criminal adjudication. A recognition of the proposed mistake of law defense is but a modest doctrinal solution for a much more fundamental perplexity of the discipline. Yet it is especially crucial today, with an ever-clearer normative divergence among actors in the “international community.”?

scholarly journals Judicial fine: problems of substantive basis and law enforcement practice

2018 ◽  
Vol 2 (1) ◽  
pp. 154-163
Author(s):  
Alexandra V. Boyarskaya
Keyword(s):  
Russian Federation ◽  
Complex Analysis ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Cases ◽  
Scope Of Application ◽  
The Subject ◽  
The Russian Federation ◽  
Compensation For Damage ◽  
The One

The subject of the article is the grounds for exemption from criminal liability with the appointment of a judicial fine are being considered.The purpose of the article is to reveal the systemic links between Art. 76.2 and 75-76 of the Criminal Code of the Russian Federation as well as prospects of judicial fine in criminal law.The methodology of research includes methods of complex analysis, synthesis, as well as formal-logical, comparative legal and formal-legal methods.Results, scope of application. The author analyzes the practice of applying Art. 76.2 of the Criminal Code of the Russian Federation on criminal cases concerning crimes with a formal composition, when the defendants did not make any compensation for damage or other reparation for damage caused by the criminal act.The author notes that the institution of release from criminal liability with the appointment of a judicial fine is controversial. On the one hand, it has positive aspects, as it directly and unambiguously aims at compensation for damage or other smoothing of the harm caused by the crime. Сriminal legislation of the Russian Federation should more actively provide for the interests of the victim.However, fine also has a number of shortcomings related to the contradictory nature of his normative definition. The institution in question does not have its own substantive legal basis, it is applied to the same range of cases as the grounds for exemption from criminal liability provided for in Art. 75, 76 and partially Art. 76.1 of the Criminal Code. Consequently, its appearance can make a system of measures that stimulate positive postcriminal behavior only more contradictory.The introduction of this institution can contribute to an increase in manifestations of corruption. Judicial fine is appointed only by the court, but the court to exercise its functions in this case does not have the ability to verify the truthfulness of the information on the participation of the accused in the committed crime. So, there is a risk of applying this institution to persons who should be brought to criminal responsibility.This institution is available primarily for wealthy suspects (accused persons) who are capable to reimburse the damage caused by crime immediately and, in addition, within the time limits established by the court to pay a judicial fine.Conclusions. The author comes to the conclusion that the exemption from criminal liability with the appointment of a judicial fine is a truncated form of active repentance.

scholarly journals The limits of free evaluation of evidence in criminal cases

2016 ◽  
Vol 3 (3) ◽  
pp. 205-211
Author(s):  
A A Tymoshenko
Keyword(s):  
Criminal Cases ◽  
Wide Margin ◽  
Historical Continuity ◽  
Individual Personality ◽  
Ambiguous Situation ◽  
Principle Of Justice ◽  
The Law ◽  
The One ◽  
Evaluation Of Evidence ◽  
Principle Of Legality

The article deals with the evaluation of evidence procedure in the modern Russian criminal trial in a somewhat unusual context. On the one hand, marking the historical continuity of the law, the author draws attention to the rather wide margin of evalu- ation of evidence, he speaks of the «limitless» possibilities of law enforcer in this matter: he can apply diskrtsiyu in volume, which is necessary in a particular case. On the other hand, the analysis of certain provisions of the Code, and above all his art. 75, testifies to the existence of such restrictions. Among these include: the need to respect the principle of legality, establishing the objective truth of the case, ensuring the rights and freedoms of man and citizen, and, finally, the psychological and subjective factors that make official a slave of your emotions, expressions of individual personality traits. The author of care from the dangers caused by this ambiguous situation, it is proposed to formulate the law of criminal procedure the principle of justice with emphasis on human rights function a judge, prosecutor, investigator and the investigator.

scholarly journals Forging Alberta's Constitutional Framework, Richard Connors and John M. Law, eds., and The Alberta Supreme Court at 100: History and Authority, Jonathan Swainger, Ed.

2008 ◽  
Author(s):  
James W. Muir
Keyword(s):  
Twentieth Century ◽  
Supreme Court ◽  
The Other ◽  
Weight Of Evidence ◽  
Recent Issue ◽  
Other Hand ◽  
New Directions ◽  
The Law ◽  
The One ◽  
Made In

In a recent issue I raised the question of whether Canada has developed a distinctive law of its own. With two recent publications it is possible to focus that question more narrowly and ask if there is such a thing as a distinctive Albertan law that has developed over the twentieth century. In the introduction to their book Forging Alberta's Constitutional Framework (Forging), Richard Connors and John Law declare that "Alberta has, in part, forged its own Constitution and its place within Canada's Constitution." This statement perfectly balances the issue: on the one hand, Alberta has its own Constitution that it has made itself; on the other hand, it exists as an entity within the wider Canadian constitutional framework. In his introduction to The Alberta Supreme Court at 100: History and Authority, Jonathan Swainger strikes a similar balance: "In those areas where the Court did act, the weight of evidence suggests that while some aspects of Alberta's jurisprudential path have been creative and forward looking, in others they were less inclined to strike out in new directions.... And if the Court's jurisprudence in a given area might appear tentative or tightly prescribed, in others we find indications of a distinctive "made in Alberta" flavour that did not necessarily tread expected paths."Reading these books introduces us to many interesting parts of Alberta's legal past, but in the end these sometimes unique events do not lead us to conclude that there is much distinct about the law in Alberta, whether in its constitutional framework or in its courts.

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