scholarly journals MEASURES OF CRIMINAL JUSTICE RESPONSE TO PROHIBITIONS IN THE FIELD OF TRAFFIC SAFETY AND VEHICLE OPERATION: SOME ASPECTS OF REGULATORY CERTAINTY AND PRACTICE OF USE

2020 ◽  
Vol 2 ◽  
pp. 59-68
Author(s):  
A. Iashchenko
Keyword(s):  
Criminal Justice ◽  
Traffic Safety ◽  
Criminal Responsibility ◽  
Criminal Code ◽  
Primary Role ◽  
Criminal Proceedings ◽  
Vehicle Operation ◽  
Special Part ◽  
General Part ◽  
Criminal Justice Response

The article is devoted to the research of measures of criminal justice response to prohibitions in the field of traffic safety and vehicle operation. It is noted that the primary role in state response to violation of criminal justice prohibitions in the field of traffic safety and vehicle operation is given to punishment, but no less important role is paid to other alternative to prohibition measures of criminal justice nature based on the concussion (special confiscation) or the encouragement (exemption from criminal responsibility or serving a sentence). It is concluded that the normative regulations of threats of application of certain punitive measures of criminal justice nature in sanctions of the articles of this section of the Special part in which the legislator defines the threat of application of various types of punishment for committing the crimes stipulated in crimes’ dispositions, needs specification from the point of view of the system interconnection, along with the provisions of the General Part of the Criminal Code of Ukraine, whereas the practice of application of special confiscation its further distribution and development, considering the proposed recommendations of its delimitation with the so called criminal procedural confiscation as means of criminal procedural concussion. In particular, it is noted that such clarification may be implemented either by enforcing additional penalties specified in the sanctions of Part 1, 2, 3 of Article 286, part 1 of Article 287 of the Criminal Code of Ukraine, to the common list of types of punishments, with their separate meaningful definition in the corresponding articles of the section X of the General part of the Criminal Code of Ukraine, or by covering normative definition in sanctions of the specified articles of section XI of the Special part of threats of application of such additional types of punishments according to the existing parts of the Criminal Code of Ukraine. In this regard the sanctions of Article 286 and 287 of the Criminal Code of Ukraine propose to make appropriate changes. As for the practice of applying special confiscation for committing crimes in the field of traffic safety and vehicle operation, it is recommended that the question of its implementation should be based on the fact that the subject of special confiscation may be defined in paragraph 1 of Part 1 of Art. 96-2 of the Criminal Code - items 6, 6-1 part 9 of Art. 100 of the Criminal Procedure Code, paragraph 2, part 1 of Art. 96-2 of the Criminal Code - item 2 part 9 of Art. 100 of the CPC, paragraph 3, part 1 of Art. 96-2 of the Criminal Code - item 5 part 9 of Art. 100 of the CPC, paragraph 4, part 1 of Art. 96-2 of the Criminal Code - item 1 part 9 of Art. 100 of the CPC items of the material world that possess a certain property value, and are usually considered as physical evidence in criminal proceedings initiated on the fact of committing certain crimes in the field of traffic safety and vehicle operation.

scholarly journals Guilt in compositions of crimes against bases of national safety of Ukraine: problem questions of theory and fixing in a law on criminal responsibility

2019 ◽  
pp. 136-150
Author(s):  
R. Chorniy
Keyword(s):  
National Security ◽  
Criminal Behavior ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Special Part ◽  
Direct Indication ◽  
General Part ◽  
The Law ◽  
Transfer Of Information

The article is devoted to the investigation of forms and types of guilt in the composition of crimes against the basics of national security of Ukraine. The presence of a number of unresolved issues at the theoretical and legal level on this issue actualizes the need for its scientific elaboration and formulation of proposals to improve the provisions of the law on criminal liability. The purpose of the article is to investigate the problematic issues of forms and types of guilt in crimes against the bases of national security of Ukraine, ways of fixing them in the articles of Section I of the Special part of the Criminal Code of Ukraine and to develop sound proposals for their solution based on the provisions of the doctrine of criminal law. The article presents the existing approaches of doctrinal interpretation by scientists of the provisions on wine, its forms and types, through which the research of this feature in the crimes under Art. Art. 109 - 114-1 of the Criminal Code of Ukraine. It is proved that the most reasonable is the psychological concept of guilt, which promotes the insertion of forms and types of guilt in crimes against the basics of national security with a formal composition, the elucidation of forms of guilt in the warehouses of crimes provided by articles of section I of the Special part of the Criminal Code of Ukraine, in which the legislator directly does not say that it is one of the preconditions for the proper qualification of the act committed by the person. It is proved that the basis for the conclusion about the intentional form of guilt is based on: 1) a direct indication of it in the norm of the law (Part 1 of Article 110 and Part 1 of Article 111 of the Criminal Code of Ukraine); 2) indication of the specific purpose or motives of the criminal behavior (Part 1 of Article 109, Note 1, Part 1 and Part 2 of Article 110-2, Article 113, Part 1 of Article 114 and Article 112 of the Criminal Code of Ukraine) ; 3) combination of the above mentioned features in one norm (Part 1 of Article 110 of the Criminal Code of Ukraine); 4) interpretation of terms used in the dispositions of certain articles and / or through the description in the law of the features of the crime (Part 1 of Article 110, Part 2 of Article 109, Part 1 of Article 110, Part 1 of Article 111, Article 112, Article 113, Part 1 of Article 114 and Part 1 of Article 114-1 of the Criminal Code of Ukraine); 5) interpretation of terms used in other articles of the Special (espionage as a part of state treason) or articles of the General part of the Criminal Code of Ukraine (conspiracy to commit the actions provided for in part 1 of Article 109 of the Criminal Code of Ukraine (Article 26 of the Criminal Code of Ukraine), attempted murder state or public figure (Article 112 of the Criminal Code of Ukraine) (part 1 of Article 15 of the Criminal Code of Ukraine); 6) the orientation of socially dangerous acts. The specifics of constructing all these norms testify to the direct intent of the person who committed the respective crime. On this basis it is substantiated that the lack of specification of intent in part 1 of Art. 111 and Part 1 of Art. 110 of the Criminal Code of Ukraine does not contribute to the clarity of the provisions of the Criminal Code in the specified part, and the direct intent in the composition of these crimes is evidenced by: 1) special purpose (Part 1 of Article 110 of the Criminal Code); 2) the terms used in the dispositions of the said articles (“violation of the order… established by the Constitution of Ukraine” (part 1 of Article 110), “transfer of information…, transition to the enemy's side, rendering… assistance in carrying out subversive activities against Ukraine”) ( Part 1 of Article 111); 3) the focus of socially dangerous action. In order to eliminate the ambiguous interpretation of the provisions of Part 1 of Art. 110 and Part 1 of Art. 111 of the Criminal Code it is proposed to amend them accordingly. The forms and type of guilt in the warehouses of crimes with material composition (Part 3 of Article 110, Part 3 and 4 of Article 110-2, Part 2 of Article 114-1 of the Criminal Code of Ukraine) were not clearly reflected in the relevant rules of the law. It is substantiated that the subject's attitude to socially dangerous consequences (deaths of people (h. 3 Art. 110, h. 2 Art. 114-1), other grave consequences (h. 3 Art. 110, h. 4 Art. 110- 2, Part 2 of Article 114-1) Causing considerable property damage (Part 3 of Article 110-2) can be intentional or negligent.

scholarly journals Role of the footnotes to articles of the Criminal Code of Ukraine regarding differentiation of criminal responsibility

2020 ◽  
pp. 63-73
Author(s):  
Natalia Antoniuk
Keyword(s):  
Criminal Responsibility ◽  
Criminal Code ◽  
The Body ◽  
Paradoxical Situation ◽  
Special Part ◽  
General Part ◽  
Key Terms

Footnotes to articles of the Criminal Code of Ukraine have a function of making understanding the essence of the features of the body of crime easier. These features are clarified or detailed in the footnotes. Nevertheless, sometimes the legislator awards the footnote with functions it does not comply with. Such an approach of the legislator led to the discussion if the footnote can prescribe the features of the body of crime as the disposition of the norm does. However, the analysis of the footnotes to articles of the Criminal Code allows us to make the conclusion that the mentioned above approach is not executed in full scope by the legislator while constructing the text of the footnote. In some footnotes the legislator clarifies such an important feature of crime as volume of damages, in the others – defines feature of repeated crime. Moreover, sometimes the footnote substitutes the disposition of the article and leads to differentiation of criminal responsibility. This is a rather paradoxical situation when criminality of the action is not directly prescribed in the disposition but takes ground from the supplemental element of the article. We can illustrate the above said using the example of the footnotes to articles 149 and 303 of the Criminal Code in the part of actions encroaching minor victims or victims under the age of 18 years old. For instance, in certain footnotes to these articles the legislator has prescribed that methods of committing these crimes don’t matter. So, methods as the essential features of bodies of mentioned crimes lose their obligatory role, if crimes are committed versus minors or persons under age. We suggest that the differentiation of criminal responsibility must not be done using footnotes. It is necessary to mention an important differentiating role of the footnote to article 45 of the Criminal Code, which envisages list of corruption offences. We suppose that such a key definitions shall be interpreted in certain articles of the Code but not in the footnotes. Optimally – terminological chapter is to be implemented into the Criminal Code. The footnote to the article of the Special Part of the Criminal Code must only detail or clarify the essence of the features of crime, but cannot broaden their essence or volume. The footnote shall not obtain normative character in the meaning of establishing criminality of the action. If the necessity to define some unified notions in the Criminal Code occurs, then it should be defined within the borders of the terminological chapter of the code. Features of the body of crime must be directly prescribed in the disposition of the Special Part of the Criminal Code. It is necessary to remove footnotes-definitions and footnotes-lists to the terminological chapter. At the same time, it is important to remember that the terminological chapter in the General Part of the Code is cross-cutting. So, if the necessity to clarify or to detail something concerning the body of specific crime occurs, the legislator can easily do this with the use of the footnote. Key terms: footnote, differentiation of criminal responsibility, disposition of the article.

ON THE FORMAL ASPECT OF REGULATION OF THE CRIMINAL LEGAL IMPACT IN RESPECT OF MILITARY PERSONNEL IN THE RF CRIMINAL CODE

2021 ◽  
pp. 5-11
Author(s):  
R. V. Zakomoldin ◽  
Keyword(s):  
Criminal Law ◽  
Military Personnel ◽  
Military Service ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Punishment ◽  
Special Part ◽  
General Part ◽  
Criminal Legislation

The paper analyzes special norms and provisions of the RF Criminal Code reflecting the specifics of criminal law impact towards such a particular subject as military personnel. The author studies the nature, meaning, and varieties of special criminal law norms. The paper highlights the diversity of such norms and their presence in General and Special parts of the criminal law. In this respect, the author explains that these norms have a dual purpose: they are applied both instead of general norms and along with them, supplementing and specifying them. The author emphasizes the certainty, necessity, and reasonability of special norms and provisions in criminal law. The study pays special attention to military criminal legislation as a special criminal legal institution and a set of special rules and provisions that allows differentiating and individualizing criminal responsibility and criminal punishment of servicemen, taking into account the specifics of their legal status and the tasks they perform in the conditions of military service. The author considers special norms and provisions of the General Part of the RF Criminal Code regulating particular military types of criminal punishment and the procedure for their imposition (Articles 44, 48, 51, 54, 55), as well as the norms and provisions of the Special Part of the RF Criminal Code on crimes against military service (Articles 331–352). Besides, the study identifies close interrelation and interdependence of special norms and provisions of the criminal law with the criminal procedure and criminal executive legislation because they are the elements of a single mechanism of criminal law impact on military personnel, and only their combination ensures the effectiveness of such impact. Based on the analysis, the author formulates the conclusions and proposals to introduce amendments and additions to the RF Criminal Code concerning military criminal legislation. First of all, the author proposes highlighting the section “Criminal liability of military personnel” and the chapter “Features of criminal liability and punishment of military personnel” in the General part of the RF Criminal Code and abandoning the provision of part 3 of Art. 331 in the Special part.

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.

scholarly journals Legal composition of the court in the first instance in the criminal proceedings of Ukraine

2020 ◽  
pp. 133-146
Author(s):  
Lyudmila Gurtieva ◽  
Tatiana Lukashkina
Keyword(s):  
Key Words ◽  
Criminal Responsibility ◽  
Criminal Code ◽  
Jury Trial ◽  
Criminal Proceedings ◽  
Coercive Measures ◽  
Special Part ◽  
State Secret ◽  
Criminal Procedure Law ◽  
Court Of First Instance

The legal composition of the court is part of the concept of «right to a fair trial». Requirements for the legal composition of the court relate to the number of judges, and in some cases also compliance with additional (special) requirements for judges (proceedings against minors; proceedings containing information constituting a state secret; proceedings in the High Anti-Corruption Court). Violation of the requirements of the criminal procedure law regarding the consideration of criminal proceedings in the court of first instance by the legal composition of the court entails the revocation of the court decision. This study pays attention to the presence of some gaps and inconsistencies in the regulation of certain issues related to determining the composition of the court in the court of first instance, and suggests ways to overcome the identified shortcomings of the law. So, according to Article 512 of the CPC of Ukraine consideration of the application of coercive measures of a medical nature is carried out by a judge alone. But there are certain cases when such proceedings are carried out by a collegial court, including a jury trial. Therefore, it is proposed to amend Article 500 of the CPC of Ukraine, noting that the proceedings on the application of coercive measures of a medical nature are carried out by a court composed of a judge alone, except cases provided by the CPC of Ukraine. The CPC of Ukraine does not specify the composition of the court in considering a request for the application of coercive measures of an educational nature (for persons who committed a socially dangerous act that falls under the signs of an act under the Special Part of the Criminal Code before reaching the age of criminal responsibility). In our view, the CPC should clearly define the composition of the court in this case. Key words: court of the first instance, composition of the court, improvement of criminal procedural legislation.

scholarly journals INTERACTION OF INVESTIGATOR WITH EXPERT SUBDIVISIONS DURING THE INVESTIGATIVE EXPERIMENT IN THE INVESTIGATION OF VIOLATIONS OF TRAFFIC SAFTY RULES OR TRANSPORT OPERATION

2020 ◽  
pp. 424-433
Author(s):  
А. О. Чичиркін
Keyword(s):  
Traffic Safety ◽  
Criminal Code ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Organizational Skills ◽  
Criminal Offenses ◽  
Vehicle Operation ◽  
Procedural Time ◽  
Safety Rules

During the investigation of criminal offenses related to violation of traffic safety rules and operation of vehicles, conducting an investigative experiment is one of the mandatory investigative (search) actions, which requires the investigator to concentrate mental and organizational skills and a significant amount of procedural time within the pre-trial investigation, which can be properly ensured through interaction with expert units. In this category of criminal proceedings, the investigative experiment is a source of information on the parameters and characteristics of the accident, which can not be obtained in other ways, and without which many important expert tasks can not be solved during forensic examinations. The purpose of the article is to study the peculiarities of the investigator's interaction with expert units during the investigative experiment in investigating violations of traffic safety rules or vehicle operation, by establishing areas of interaction between the investigator and experts during the investigative experiment in this category of cases; disclosure of types of investigative experiment and typical situations of interaction of the investigator with experts during its carrying out during investigation of the criminal offense provided by Art. 286 of the Criminal Code of Ukraine; determining the role of the expert as a specialist involved in the investigative experiment in the investigation of violations of traffic safety rules or transport operation; identification of shortcomings that arise from improperly organized interaction of the investigator with the expert during the investigative experiment, a proposal for measures to prevent them. The article highlights and reveals the content of the peculiarities of the investigator's interaction with expert units during the investigative experiment in the investigation of violations of traffic safety rules or vehicle operation. It was found that one of the main shortcomings in the design of the protocol is that the investigator during the investigative experiment constantly evaluates the conditions, progress and results of experiments. When drawing up the report, keep in mind that the evaluation of the results by the investigator and other participants in the investigative experiment is beyond the scope of the protocol. As a rule, the evaluation of the results is stated at the end of the protocol.

COMPETITION OF CRIMINAL LAW PROVISIONS, WHICH FORESEE CERTAIN TYPES OF EXEMPTION FROM CRIMINAL RESPONSBILITY

2020 ◽  
Vol 10 (4) ◽  
pp. 73-79
Author(s):  
Vira Navrotska ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Legal Norms ◽  
The Public ◽  
Legal Literature ◽  
Special Part

Proper delineation of different types of exemption from criminal liability, the solution of competition between the legal norms foreseen such exemption are important in practice. However, law enforcers, within closing criminal proceedings (termination of criminal prosecution) and releasing from criminal liability, do not even think about the existence of such competition and about the need to choose a legal norm that is more advantageous for the accused. Sometimes the competition of criminal law norms in legal literature is reduced only to the competition of these rules within the qualification of an act prohibited by the Criminal Code of Ukraine. This article is devoted to the analysis of credibility of this statement, possibility of competition within the procedure of releasing from criminal liability, as well as to the mode of action under such competition. The impossibility of competition between certain types of exemption from criminal responsibility has been criticized. It is noted that it�s impossible to give universal recommendations for determining the most �profitable� norm on the basis of which the exemption from criminal responsibility is permissible. However, the following conditions have to be taken into consideration: 1) whether the possibility of bringing a person to criminal responsibility in the future will remain; 2) whether it is obligatory for the court to make a decision on exemption from criminal responsibility; 3) which offences and persons who committed them the norm is settled for; 4) what (more or less strict) conditions for exemption from criminal responsibility are settled, when other conditions are equal. It is proved that the differentiation mechanism of types of exemption from criminal responsibility after effective repentance and after reconciliation with the victim should be as follows: if there is a victim (in the procedural sense) the proceedings should not be closed under Art. 45 of the Criminal Code of Ukraine. There is a special institution - the closure of criminal proceedings after reconciliation of the perpetrator with the victim (Article 46 of the Criminal Code of Ukraine) for exemption from criminal responsibility in such cases. The exemption from criminal responsibility after effective repentance is expedient to apply if the encroachment harms the public interest. It is substantiated that a special rule, regarding one fixed in Article 45 of the Criminal Code of Ukraine, is foreseen by Part 4 of Article 311 of this Code - because it foresees the conditions of exemption from criminal responsibility of a person who has committed a specific criminal offense. The unambiguity and categoricalness of the statement, under which in Article 45 of the Criminal Code of Ukraine is not foreseen a general type of exemption from criminal responsibility regarding the special ones foreseen by the Special Part, is criticized; it is proved that at least one such exception exists;

scholarly journals Mistake of fact and endangering actions as circumstances which can affect differentiation of criminal responsibility for unfinished crime

2020 ◽  
pp. 286-290
Author(s):  
Natalia Antoniuk
Keyword(s):  
Social Relations ◽  
Criminal Responsibility ◽  
Human Life ◽  
Subjective Evaluation ◽  
Criminal Code ◽  
Special Part ◽  
The Subject ◽  
Severe Punishment ◽  
A Minor ◽  
Legal Consequences

 Most of the aspects of differentiation of criminal responsibility for unfinished crime though being discussional, are duly researched in the criminal scientific studies. However, the sphere of unresearched institutes exists enabling us to speak about its influence on differentiation of criminal responsibility. This institutes are the mistake of fact and so called “delicts of endangering” The purpose of this research is to analyze the differentiated influence on criminal responsibility of crimes committed with the feature of mistake of fact and of delicts of endangering. It is planned to illustrate, basing on certain examples, the importance of these institutes for differentiation of criminal responsibility. By the way, the task of this article is to reveal the shortcomings of criminal law in force and to make propositions on their removing. Up to date, taking into consideration the provisions of part 3, 4 of Article 68 of the Criminal Code of Ukraine, the court can`t impose punishment on person, guilty of committing a crime under effect of mistake of fact, qualified as attempt, higher than 2/3 of the maximal severe punishment (envisaged in article of special part of the Criminal Code). The court, as well, can`t (in most cases) impose life imprisonment even when the damage totally equals the damage caused by finished crime. For instance, planning to kill with mercenary motives a minor, the guilty person kills an adult. This action can’t be qualified as finished crime, as the mistake of victim occurs. Nevertheless, object of human life is objectively damaged. So, the crucial necessity to make equal between each other finished crime and crime, committed under influence of mistake of fact, is evident. Differentiating criminal responsibility in situations when damage is desired by the guilty person, the legislator in fact hasn’t bothered to duly differentiate criminal-legal consequences in case of endangering without the desire of such damage. That`s why it is of great importance to regulate by norms criminal actions which are endangering social relations with social dangerous damages, but don’t have the features of criminal aim, motive and desire of guilty person. This step can provide differentiated approach towards socially dangerous behavior, delimiting the estimation of act and consequence. It can concentrate the attention on subjective evaluation of potential consequences by guilty person, notwithstanding the factors, which often exist besides mental estimation of the subject.

scholarly journals CORPORATE CRIMINAL LIABILITY IN INDONESIA ON THE PERSPECTIVE OF COMPARISON

2017 ◽  
Vol 2 (2) ◽  
pp. 144-154
Author(s):  
Muchammad Chasani
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Justice System ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Offense ◽  
Criminal Legislation ◽  
Corporate Criminal Liability ◽  
Responsibility System

The regulation of corporate criminal liability in Indonesia's criminal justice system is basically a new and still debatable issue. It is said that because in the Criminal Code is not recognized and regulated explicitly about the corporation as a subject of criminal law. This is a natural thing since the WvS Criminal Code still adheres to the principle of "societas delinquere non potest" or "non-potest university delinquere", that is, a legal entity can not commit a crime. Thus, if in a society there is a criminal offense, then the criminal act is deemed to be done by the board of the corporation concerned. Regarding the corporate criminal responsibility system in Indonesia, in the corruption law Article 20 paragraph (1), if the corporation committed a criminal act of corruption, then those responsible for the criminal act shall be the corporation only, the management only, or the corporation and its management. Thus, it can be said that the regulation of corporate criminal liability in the legal system in Indonesia is expressly only regulated in special criminal legislation, because the Criminal Code of WvS still adheres to the principle of "societas delinquere nonpotest" so it is not possible to enforce corporate criminal liability in it.

scholarly journals ‘The Very Foundations of Any System of Criminal Justice’: Criminal Responsibility in the Australian Model Criminal Code

2017 ◽  
Vol 6 (3) ◽  
pp. 8-24 ◽  
Author(s):  
Arlie Loughnan
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Code ◽  
Law Reform ◽  
Reform Process ◽  
Conceptual Level ◽  
Top Down ◽  
The Core ◽  
Reform Project

The Model Criminal Code (MCC) was intended to be a Code for all Australian jurisdictions. It represents a high point of faith in the value and possibility of systematising, rationalising and modernising criminal law. The core of the MCC is Chapter 2, the ‘general principles of criminal responsibility’, which outlines the ‘physical’ and ‘fault’ elements of criminal offences, and defines concepts such as recklessness. This paper assesses the MCC as a criminal law reform project and explores questions of how the MCC came into being, and why it took shape in certain ways at a particular point in time. The paper tackles these questions from two different perspectives—‘external’ and ‘internal’ (looking at the MCC from the ‘outside’ and the ‘inside’). I make two main arguments. First, I argue that, driven by a ‘top down’ law reform process, the MCC came into being at a time when changes in crime and criminal justice were occurring, and that it may be understood as an attempt to achieve stability in a time of change. Second, I argue that the significance of the principles of criminal responsibility, which formed the central pivot of the MCC, lies on the conceptual level—in relation to the language through which the criminal law is thought about, organised and reformed.

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