scholarly journals Czy sąd powinien być wyrozumiały dla prawodawcy? O błędzie legislacyjnym z perspektywy teorii wykładni

2020 ◽  
pp. 99-110
Author(s):  
Marek Suska
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Prima Facie ◽  
Literal Meaning ◽  
Theory And Practice ◽  
Final Part ◽  
Legal Interpretation ◽  
Legal Provisions ◽  
Legislative Processes

In the actual legislative processes, errors are often made: the legislator’s intentions are not always properly expressed in the legal provisions or there is insufficient clarity. The discrepancy between what the legislator said and what they meant to say poses a serious challenge to the theory and practice of legal interpretation. In this paper, the author analyses two possible reactions to a legislative error: correcting it or applying the provision in its literal meaning. The considerations are based on two decisions of the Criminal Chamber of the Polish Supreme Court, because in criminal law the protection of the prima facie understanding of the text is a very important value. In the final part of the paper, the author indicates factors which can affect the court’s attitude towards a legislative error in a specific case.

scholarly journals CHARACTERISTICS OF THE CONSTITUENT ELEMENTS OF A CRIMINAL OFFENCE – PERSECUTION

2021 ◽  
Vol 1 (91) ◽  
pp. 5-15
Author(s):  
Aldona Kipāne
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Legal Framework ◽  
Theory And Practice ◽  
Legal Interpretation ◽  
Legal Literature ◽  
Wide Range ◽  
The Subject ◽  
Constituent Elements

From January 1, 2018, amendments to the Criminal Law, which provide criminal liability for the persecution of a person, came into force in Latvia. The constituent elements of persecution are defined as a specific form of violence.The aim of the paper is to describe the constituent elements of persecution based on the theory and practice of criminal law. During the study, the author provides a framework of the criminal law theory and outlines the elements of the persecution. The object of the study is the criminal relations, which arise from the persecution of another person. The subject of the study is the criminal legal framework to be followed for the determination of criminal liability. The following legal interpretation methods and approaches have been used in the study: grammatical, systematic, teleological, and historical, as well as analytical method for analysing doctrine and practice of criminal law. Doctrines of criminal law, national legislation, and the sources of legal literature relevant to the aim of the paper have been in the study, too.The analysis carried out leads to the conclusion that persecution covers a wide range of socio-psychological behaviour that manifests in the sacrifice’s victimization and specific harm caused to him/her. Persecution is an active illegal, threatening activity in the form of repeated or lasting tracking, surveillance of another person, expressing threats or unsolicited communication with such a person, if victim have had reasonable grounds to fear for their safety or the safety of their relatives

Theory and practice of criminal law combating corruption in the Republic of Kazakhstan

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Nursulu Zh. Siubayeva ◽  
Aigul M. Kalguzhinova ◽  
Darkhan O. Ozbekov ◽  
Saule S. Serikbayeva ◽  
Kamshat S. Amirbek
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
National Policy ◽  
Historical Analysis ◽  
Theory And Practice ◽  
Content Type ◽  
Legal Provisions ◽  
History Of ◽  
The Subject ◽  
The Republic

Purpose In accordance with the country’s programme documents, the fight against corruption, defined as the most important strategic priority of the national policy of the Republic of Kazakhstan, acquires consistent political and legal support. The purpose of this paper is to study the criminal law combating corruption in the Republic of Kazakhstan. Design/methodology/approach In this paper, the methods of historical analysis of the current legal provisions, analysis of the compositions of malfeasances and synthesis were used. Findings This study considered the main historical stages and aspects of the development of modern legislation of criminal liability for corruption offences. The authors of this study provided sound proposals for improving the current legislation of the Republic of Kazakhstan. Originality/value This paper argues the need to develop corruptology as an independent interdisciplinary scientific area, the subject of which would be corruption as a political, sociological, economic, legal and criminological phenomenon; features of corruption and combating it throughout the history of state–legal relations.

scholarly journals Topical Issues of Improving Criminal Law Measures Against Kidnapping, Illegal Imprisonment, Human Trafficking and the Use of Slave Labor

2020 ◽  
Vol 14 (3) ◽  
pp. 481-494
Author(s):  
Vladimir Taranenko ◽  
Stanislav Kharitonov ◽  
Maria Reshnyak ◽  
Sergey Borisov
Keyword(s):  
Supreme Court ◽  
Human Trafficking ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Liability ◽  
Theory And Practice ◽  
Slave Labor ◽  
Personal Freedom ◽  
The Supreme Court ◽  
The Russian Federation

This research is aimed at identifying the problems of the regulation and enforcement of current criminal law norms for counteracting such crimes against human freedom as kidnapping, illegal imprisonment, human trafficking and the use of slave labor, as well as at working out suggestions on solving these problems. The sphere of the research is public relations that emerge in connection with the development and enforcement of criminal law norms on liability for these infringements on personal freedom. The object of research is a number of problems in legislation, theory and practice whose analysis will make it possible to gain an integral and detailed understanding of historical and social prerequisites, trends and directions of the development of the institute of criminal liability for crimes against personal freedom. The authors analyze the clarifications of the plenum of the Supreme Court of the Russian Federation included in the decree «On Court Practice for Cases of Kidnapping, Illegal Imprisonment and Human Trafficking» of December 24, 2019 № 58, the published practice of the Supreme Court of the Russian Federation and the courts of the subjects of the Russian Federation on criminal cases of the above-mentioned crimes against personal freedom, as well as the official statistical information of the Court Department of the Supreme Court of the Russian Federation on convictions for such crimes. The methodological basis of this research comprises both general and special research methods, including the specific-sociological and comparative legal ones. The complex research of the problems of liability for crimes against personal freedom is used as a basis for formulating and validating specific suggestions on improving criminal law norms on liability for such infringements and the practice of their enforcement. Specifically, the article contains recommendations on determining the moment when crimes against freedom end, on their delineation, as well as on solving other complex problems of qualification for these crimes within the scope of one or several Articles of Chapter 17 of the Criminal Code of the Russian Federation.

scholarly journals Instytucja kary umownej w latach 1965–1989 — wybrane zagadnienia

2021 ◽  
Vol 43 (3) ◽  
pp. 37-45
Author(s):  
Agnieszka Guzewicz
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Case Law ◽  
Civil Code ◽  
Theory And Practice ◽  
Legal Provisions ◽  
Starting Point ◽  
The Supreme Court

The basis of this article is the analysis of the functioning of a contractual penalty in the years 1965–1989, i.e. from the time the Civil Code entered into force until the end of the Polish People’s Republic period. The research was carried out by means of analysing the legal provisions, the caselaw of the Supreme Court and the views of the doctrine. Its purpose is to reflect and draw conclusions on the functioning of the civil law institution — a contractual penalty — under authoritarian governments. The considerations were focused on selected problems, first of all concentrating on the Supreme Court’s case-law. Legal relations with the participation of socialized economy units become an important element of these considerations. The provisions of the Civil Code constitute the starting point, but they cannot be interpreted in isolation from the provisions of other normative acts that introduced special legal solutions in contracts with the participation of units of the socialized economy. The confrontation of theory and practice shows how the obligations imposed on entities of civil law are enforced. Against this background, issues of key importance for civil law emerge. They relate to the principles of concluding contracts, the performance of obligations, and the consequences of a failure to perform the contract.

scholarly journals Zasada nullum crimen sine lege jako źródło poszukiwania językowej granicy wykładni prawa karnego?

2020 ◽  
pp. 81-95
Author(s):  
Sławomir Tkacz
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Case Law ◽  
Criminal Case ◽  
Legal Interpretation ◽  
The Rule Of Law ◽  
Legal Provisions ◽  
Starting Point

The principle of nullum crimen sine lege is nowadays recognized as the standard of the rule of law. This doctrine prohibits the use of analogies and extensive interpretation of legal provisions to the disadvantage of the perpetrator. The starting point of these considerations is that texts of criminal provisions vary in nature. Therefore a question should be asked about the nature of these prohibitions in relation to various provisions. A separate problem is to distinguish inference by analogy from legal interpretation. The presented considerations are aimed at answering the question whether the nullum crimen sine lege principle allows determining the linguistic limits for the interpretation of criminal law. The analyses are illustrated by examples from the field of criminal case law. The article aims to provide reflection on the acceptable limits of interpretation of criminal law, if such limits can be defined. The considerations end with general conclusions.

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Administrative Law ◽  
The State ◽  
Government Officials ◽  
Criminal Process ◽  
The Supreme Court ◽  
State Finance ◽  
The Law ◽  
To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

Theft and Fraud Committed Using Electronic Payment Systems (Regional Judicial and Investigative Practice)

2020 ◽  
Vol 2 ◽  
pp. 66-79
Author(s):  
S. L. Morozov ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Legal Analysis ◽  
Payment Systems ◽  
Criminal Cases ◽  
Electronic Payments ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation

The advent of the electronic currency and the effecting of electronic payments has caused new forms of thefts and types of acquisitive crimes. The judicial investigative practice of criminal cases of embezzlement committed using bank cards and other types of electronic payments has encountered problems with the qualification of such acts. The author identifies the most common enforcement problemsand their causesby a retrospective study of judicial practice, the changing norms of the criminal law. At the same time, a ten-year period of work of the judicial investigating authorities was studied. On the basis of traditional general scientific methods of cognition, as a result of a system-legal analysis of the considered set of specific situations, the author gives an author's view of the complex of causes that cause a lack of uniformity in judicial investigative practice. Using the hermeneutic approach, the author paid special attention to the application by the courts of the interpretation of the criminal law by the Plenum of the Supreme Court of the Russian Federation in different years. In conclusion, ways of resolving contentious issues of qualification of thefts and fraud in the field of electronic means of payment are proposed. It has been ascertained that high-quality and uniform law enforcement can provide additional clarification on the delimitation of related and competing theft from the Plenum of the Supreme Court of the Russian Federation. It is concluded that in general, the current concept of the Plenum of the Supreme Court of the Russian Federation does not contain contradictions with the novels of the criminal law, but can be improved. The rationale and edition of possible additions to the relevant decision of the Plenum of the Supreme Court of the Russian Federation are given.

Definition

2017 ◽  
Author(s):  
Martin Camper
Keyword(s):  
Supreme Court ◽  
Court Case ◽  
Legal Interpretation ◽  
Single Term ◽  
Supreme Court Case

Chapter 3 explores the interpretive stasis of definition, where there is a question concerning the intended or appropriate scope of the basic sense of a term in a text. The chapter shows how rhetors, by persuasively articulating a definition and resorting to various lines of argument, can shift the meaning of passages and reframe controversies hinging on a text’s interpretation by adjusting the scope of a single term. But only linchpin terms (similar to Burke’s and Weaver’s ultimate terms) have this governing quality. The chapter’s central example consists of oral arguments from the 2010 Supreme Court case McDonald v. City of Chicago that ultimately determined US citizens have a fundamental right to bear arms. The case partly rested on whether the Fourteenth Amendment’s phrase privileges or immunities, generally protected from state infringement, includes this right within its scope. The centrality of definitional disputes to legal interpretation is also considered.

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