scholarly journals Pozaustawowy kontratyp działania w ramach uprawnień wynikających z prawa do obrony w kontekście nowelizacji art. 233 §1 Kodeksu karnego

2021 ◽  
Vol 28 (2) ◽  
pp. 91-123
Author(s):  
Dominika Lapawa
Keyword(s):  
Criminal Responsibility ◽  
Criminal Liability ◽  
Legal Basis ◽  
Constitutional Principle ◽  
Division Of Powers ◽  
The Supreme Court ◽  
The Subject ◽  
The Right ◽  
Constituent Elements ◽  
Domestic Law

The work is devoted to the non-statutory justification of action in the scope of the right to defence, whose purpose was the exclusion of criminal responsibility for giving false testimony by a witness – the actual perpetrator – in his or her case. It was emphasised that the defence which heretofore resulted from Art. 182 and 183 kk was insufficient for the witness. One discussed inter alia the legal basis of the justification, its constituent elements, one indicated the  controversies which were caused by the concept of justification, and which to a great extent were associated with the violation, by the Supreme Court, of the constitutional principle of the tripartite division of powers and with the substantive and temporal limits of the right to defence which result both from the norms of international and domestic law. One indicated the position of the representatives of the doctrine as to the concept of justification. Scholarship on the subject, even though it did not take a uniform stand in reference to the problem in question, basically discerned the necessity of the improvement of the situation of the witness – the actual perpetrator, who, testifying in his or her own case, would run the risk of self-incrimination. The considerations of the doctrine resulted in numerous alternative propositions de lege ferenda. In the work, one suggests to seek such a solution in the substantive approach to the nemo se ipsum accusare tenetur rule. Then it was emphasised that the problem of justification once again became the subject of discussion owing to the amendment issued on 11 March 2016 about the modification of the act of law – The Code of Criminal Procedure and certain other acts of law Art. 233 §1a kk. At that time one penalised the behaviour of a witness, who in fear of criminal liability to be faced by the witness or his relatives gives false testimony or conceals the truth. For the sake of recapitulation, one indicated that the amendment which was described above rendered the justification in question invalid, and the perpetrator who is heard in a court of law as a witness continues de lege lata to be entitled to use the right to refuse to answer the question from Art. 183 §1 kpk. One emphasised that the doctrine recurrently discerned the shortcomings of defence which result from Art. 183 §1 kpk. Above all the institution from Art. 183 §1 kpk was not intended for a witness – the actual perpetrator. Therefore, in the article, in order to realise the warranty nature of the entitlement in question one suggests that this admonishment should be rendered obligatory, so that every witness would be aware that the right exists and that he or she may exercise it.

scholarly journals VIOLENCE AS A GENERAL CATEGORY OF PART OF TEACHING ABOUT CIRCUMSTANCES EXCLUDING THE CRIME ACTS

2019 ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Historical Analysis ◽  
General Category ◽  
Legal Basis ◽  
Criminal Violence ◽  
The Subject ◽  
General Part ◽  
The Right

The article gives the author’s definition of the concept of criminal violence and analyses its main types: physical and mental. The problems of the criminal law assessment of violence are considered as a sign of certain circumstances precluding the criminality of the act. The attention is focused on the fact that violence is an important category of teaching about the circumstances precluding the criminality of an act. It emphasizes that: violence acts as a legal basis for the existence of such circumstances; its existence gives the right to "unlimited" defence; it serves as the basis for bringing to criminal responsibility persons who have exceeded the limits of causing necessary and sufficient harm. The author draws attention to the importance of the criminal law assessment of subjective signs of violence. It is indicated that they are: the intent, purpose and motivation (motives) of committing actions. The sole purpose of such actions should be the goal of stopping unlawful acts and eliminating the danger. In the article, motivation is considered as a set of motives of actions similar in nature and content. It can be hostile, instrumental, negativistic and mixed. Establishing the type of motivation significantly affects the qualification of actions and the responsibility of the perpetrators. It is pointed out that crimes that are committed when the limits are exceeded, which are determined by the rules on circumstances precluding criminality, are related to the so-called “impulsive” crimes that are often committed in a state of emotional agitation (affect). This significantly affects the qualification of actions of the perpetrators, and in some cases leads to the release of the latter from criminal responsibility. Methods. When writing the article, the dialectical method, the methods of logical and historical analysis were used. They allowed analysing the existing criminal legislation and its historical development in the relevant field. Such a sociological method, such as the study of documents, makes it possible to back up the findings with the results of a study of judicial practice materials on the subject matter under investigation. Results and conclusions. Criminal violence in the General part of the doctrine of circumstances precluding the criminality of an act has the following meaning: it is an important category not only of the Special, but also of the General part of the legislation on criminal liability; is a category of teaching circumstances that exclude the criminality of the act; significantly affects the qualification of actions of the perpetrators in cases that are determined by the rules on the circumstances precluding the criminality of the act; in analysing the types of violence, both objective and subjective signs are important; together with the wilfulness of violent actions, the purpose and motivation (motives) of such actions matter; motivation of violent actions can be hostile, instrumental, negativistic and mixed; it characterizes the legal basis of certain circumstances precluding the criminality of the act; its use is the basis for the subject to "unlimitedly" use force for protection; it serves as the basis for bringing to criminal responsibility in case of exceeding the limits in certain circumstances, precluding the criminality of the act.

scholarly journals Los criterios jurisprudenciales para exigir responsabilidad penal a las personas jurídicas en el delito corporativo

2019 ◽  
pp. 327
Author(s):  
Miguel Ángel Morales Hernández
Keyword(s):  
Supreme Court ◽  
Corporate Crime ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Legal Entity ◽  
The Supreme Court ◽  
The Subject ◽  
Points Of View ◽  
Object Of Study ◽  
Derecho Penal

Las recientes reformas del Código Penal Español han supuesto una verdadera revolución en el ámbito de la responsabilidad penal de las personas jurídicas. A raíz de las mismas, el Tribunal Supremo ha dictado una serie de sentencias que han arrojado bastante luz acerca de cuáles han de ser los elementos o requisitos que configuran la base para la atribución de la responsabilidad penal a la persona jurídica. Analizando dichas sentencias, puede observarse el reconocimiento del delito corporativo, caracterizado por contar con sus propios elementos, distintos a los exigibles a las personas físicas. Pues bien: este trabajo tiene como principal objeto de estudio la doctrina del Tribunal Supremo sobre esta materia con la finalidad de inferir cuál es la posible configuración del delito corporativo en atención a estos pronunciamientos jurisprudenciales, a los principios del derecho penal, así como al propio tenor literal de la ley. Ante esta situación, diferentes autores se han ido posicionando acerca de la fundamentación de la responsabilidad penal de las personas jurídicas; así como de la concreta estructura del delito corporativo. Se analizan también sus diferentes puntos de vista señalando que sus visiones del tema son muy dispares.Recent reforms of the Spanish Penal Code have supposed a real revolution in the area of criminal liability of legal entity. As a result of that, the Supreme Court has issued a series of judgments that shed light on which should be the elements or requirements that form the basis for the attribution of criminal responsibility to the legal entity. Analyzing these jurisprudential pronouncements, we can observe the recognition of corporate crime, characterized by having its own elements, different from those required of natural persons. Well, this work has as its main object of study the doctrine of the Supreme Court on this matter with the purpose of inferring what is the possible configuration of the corporate crime in attention to these jurisprudential pronouncements, to the principles of criminal law, as well as to the own literal tenor of the law. Faced with this situation, different authors have been positioning themselves on the basis of the criminal liability of legal entity; as well as the concrete structure of corporate crime. Their different points of view are also analyzed, pointing out that their views on the subject are very different.

scholarly journals Fakty oraz ich ocena jako przedmiot materialnoprawnych domniemań w procesie karnym

2018 ◽  
Vol 114 ◽  
pp. 77-94
Author(s):  
Jacek Giezek
Keyword(s):  
Criminal Responsibility ◽  
Fundamental Problem ◽  
Presumption Of Innocence ◽  
Legal Basis ◽  
Constitutional Principle ◽  
Diffi Cult ◽  
The Subject ◽  
Normative Criteria

FACTS AND THEIR ASSESSMENT AS THE SUBJECT OF THE SUBSTANTIVE PRESUMPTION IN THE CRIMINAL TRIALThe fundamental problem of the article can be expressed in two sequentially asked questions, namely — firstly — whether the subject of substantive presumption may be not only facts, but also assessments formulated on their basis, and — secondly — whether in the case of limiting the essence of presumptions exclusively to facts, it would be possible to include into the presumptions these elements of the dogmatic structure of crime, the occurrence of which requires, first and foremost, a series of normative assessments based on normative criteria. It is diffi cult to imagine a situation in which a subject reconstructing reality would make the subject of presumption, and therefore only “guess” that he values its elements. It would have to mean that the court must use a presumption to assess whether the realization of the signs of a prohibited act was socially harmful, unlawful and culpable. A constitutional principle of the presumption of innocence, according to which the accused should be regarded as innocent until his guilt is proved and confi rmed by a valid sentence, does not authorize to conclude that the evidence emerging from successively collected evidence indicates innocence, but it only means that before the fi nal termination of the proceedings, there is no factual and legal basis for verifying the fault and bringing to criminal responsibility.

scholarly journals SCIENTIFIC EXPERIMENTS ON ANIMALS AND CONSTITUTIONAL PRINCIPLE

2011 ◽  
Vol 12 (1, 2 & 3) ◽  
pp. 2002 ◽  
Author(s):  
Elaine L. Hughes
Keyword(s):  
Ethical Implications ◽  
Constitutional Principle ◽  
Division Of Powers ◽  
Scientific Experiments ◽  
The Subject ◽  
Exhaustive List

It is a well-established principle that the division of powers in the Constitution Act, 18671 sets out an exhaustive list of legislative subjects.2 Thus, all “new” subjects of potential regulation in Canada, such as biotechnology, must fit within the established categories of authority. This article explores some of the ethical implications of this constitutional framework and approach when the subject under consideration is the welfare of animals used in research.

scholarly journals RESPONSABILIDADE EM FACE DE PIQUETE NA JURISPRUDÊNCIA NORTE-AMERICANA

2019 ◽  
Vol 1 (54) ◽  
pp. 499
Author(s):  
Edilton MEIRELES
Keyword(s):  
United States ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
United States Supreme Court ◽  
The United States ◽  
The Supreme Court ◽  
Deductive Method ◽  
The Face ◽  
The Subject ◽  
The Right

RESUMONeste trabalho tratamos do direito de manifestação em piquetes e da responsabilidade que possa advir desses atos em face da jurisprudência da Suprema Corte dos Estados Unidos da América. A partir da análise das principais decisões da Suprema Corte se pode concluir que, de modo geral, os participantes do piquete não respondem quando agem de forma não ilegal. Está sedimentado, no entanto, o entendimento de que o organizador do piquete responde pelos atos dos participantes. A pesquisa desenvolvida se justifica enquanto estudo comparativo e diante do pouco debate existente no Brasil a respeito do tema. Na pesquisa foi utilizado o método dedutivo, limitada à ciência dogmática do direito, com estudo de casos apreciados pelo judiciário. PALAVRAS-CHAVES: Responsabilidade; Piquete; Estados Unidos; Suprema Corte; Liberdade De Expressão. ABSTRACTIn this work we deal with the right of demonstration in pickets and the responsibility that may arise from these acts in the face of the jurisprudence of the Supreme Court of the United States of America. From the analysis of the Supreme Court's main decisions it can be concluded that, in general, the picket participants do not respond when they act in a non-illegal way. It is settled, however, the understanding that the picket organizer responds by the acts of the participants. The research developed is justified as a comparative study and in view of the little debate that exists in Brazil regarding the subject. In the research was used the deductive method, limited to the dogmatic science of law, with study of cases appreciated by the judiciary.KEYWORDS: Responsibility; Picket; United States; Supreme Court; Freedom Of Expression.

„PACIJENTOVO PISMO“ KAO PRAVNI OSNOV ZA PRIMENU PASIVNE EUTANAZIJE

2021 ◽  
pp. 211-229
Author(s):  
Aleksandra Pavićević ◽  
Keyword(s):  
Living Will ◽  
Self Determination ◽  
Foreign Countries ◽  
Prolongation Of Life ◽  
The Subject ◽  
Constitutional Right ◽  
The Right ◽  
The Relationship ◽  
Domestic Law ◽  
Dying Patient

The subject of the paper is the relationship between the duties of physicians and other medical professionals towards the dying patient (as a provider of medical services) and the patient's right to personal choice and preservation of his own right to self-determination in relation to body and life, which is a special subjective civil right. The author discusses the legal-medical (but also ethical) issue of the patient's ability to freely decide not to agree to a medical measure of artificial prolongation of life or suspension of already started measures. The issue is examining the limits of the so-called permissibility of “passive euthanasia”, which is indirectly recognized in domestic law by the Law on Patients' Rights and the legal basis for its application in one particular modality, the so-called "Patient letter" (living will) which is an established legal instrument in some foreign legislation and practice. Analyzing the experience of some foreign countries, the author supports the introduction of such an institute - as a kind of anticipated directives in domestic law, referring to the patient's constitutional right to self-determination, which embodies the supreme good, even more valuable than (unwanted) life. Such a solution is in line with the principle of human will autonomy, freedom to dispose of life as a personal good, and potentially a reflection of the so-called "the right to die", which is the reverse of the right to life

Corporate Criminal Liability for the Criminal Offences in Lithuania

2020 ◽  
Author(s):  
Tomas Girdenis ◽  
Marius Laurinaitis ◽  
Irmantas Rotomskis ◽  
Raimundas Jurka
Keyword(s):  
Criminal Responsibility ◽  
Criminal Liability ◽  
Legal Regulation ◽  
Financial Reports ◽  
The Supreme Court ◽  
Illegal Activities ◽  
Material Advantage ◽  
Corporate Criminal Liability ◽  
Limited Scope ◽  
Legal Entities

Abstract Cases, where operations of legal entities entail unfair income through the malpractice of improving financial reports, are quite frequent. Such behaviour is unacceptable and deserves a stern response from the state, not only against persons involved in illegal activities but also against particular legal entities resorting to such behaviour. The purpose of this article is to analyse the elements of corporate criminal liability in the legislation of Lithuania. The article investigates the fundamentals of corporate criminal liability with the major focus on the problems of distinction and applicability of relevant elements of the latter. The analysis emphasizes the assurance of the inevitability of corporate criminal liability. The article also discusses the method of criminalizing the liability of legal entities, chosen by the Lithuanian legislator, according to which criminal liability can arise only for a limited scope of criminal offences. Presumably, the current legal regulation enables an unreasonable avoidance of criminal liability in cases where the criminal offence falls outside the aforementioned limited scope, even though it was committed to gain a material advantage over the affected party. The article also addresses the guilt of legal entities. In this regard, the article criticizes the approach of the Supreme Court of Lithuania for its evident limitation of corporate criminal liability, especially in the context of large corporations owned by many shareholders. As a possible solution, it was proposed to lay criminal responsibility on corporate governance bodies instead of the shareholders.

scholarly journals Feu la D.C.D. L'arrêt Miller et la peine de mort

2005 ◽  
Vol 18 (2-3) ◽  
pp. 567-576
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Right To Life ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The Right ◽  
First Time

The Miller case, decided by the Supreme Court of Canada on October 5, 1976, puts the death penalty under the light of the Canadian Bill of Rights which formulates the right to life and the right to protection against cruel and unusual treatment or punishment. The following comment on the case relates to the interpretation given specific clauses of the Bill of Rights by the Court on that occasion. But it stresses especially the law that flows from the case about the compelling weight of the Bill of Rights over acts of Parliament enacted after the Bill came into force. In Miller, the Supreme Court expressed itself on the subject for the first time.

Trusts & Equity

2018 ◽  
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Conceptual Analysis ◽  
Third Parties ◽  
Teaching Writing ◽  
The Supreme Court ◽  
The Subject ◽  
The Right ◽  
Literature And Film

This book provides a detailed and conceptual analysis of trusts and equity; concentrating on those areas of the subject that are most relevant in the contemporary arena, such as the commercial context. It utilizes expertise in teaching, writing, and researching to enliven the text with helpful analogies and memorable references to extra-legal sources such as history, literature, and film. In this way, the book also stimulates students to engage critically with concepts. This new edition includes coverage of significant recent cases, including decisions of the Supreme Court on the nature of a trust in relation to third parties (Akers v. Samba Financial Group [2017]), the right to recover wealth transferred between parties to an illegal scheme (Patel v. Mirza [2016]) and on the distinction between contractual debt and constructive trust (Bailey v. Angove’s PTY Ltd [2016]). Further reading and discussion of anticipated reforms has been updated throughout in light of the latest legal developments.

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