scholarly journals Grounds and Conditions for the Application of Restrictive Measures Applied to Persons who have Committed Domestic Violence

2021 ◽  
pp. 100-110
Author(s):  
Tetiana NIKIFOROVA
Keyword(s):  
Domestic Violence ◽  
Criminal Law ◽  
Local Governments ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Offense ◽  
Restrictive Measure ◽  
The Law ◽  
Restrictive Measures ◽  
National Police

The grounds and conditions for the application of restrictive measures applied to persons, who have committed domestic violence, are provided in Art. 911 of the Criminal Code of Ukraine. It is established that in the science of criminal law there is a unanimous position that the basis for the application of restrictive measures under Art. 911 of the Criminal Code is the commission by a person of a crime related to domestic violence, and the conditions are: 1) sentencing a person not related to imprisonment; 2) release of a person from criminal liability on the grounds provided by the Criminal Code; 3) release of a person from punishment on the grounds provided by the Criminal Code. These conditions are alternative. The content of the concept of «crime related to domestic violence» is analyzed and it is established that it should be understood more broadly than the act provided for in Art. 1261 of the Criminal Code «Domestic Violence». It is proposed to add to Art. 911 of the Criminal Code a note explaining the meaning of the term «criminal offense related to domestic violence», where it is necessary to note that this concept is broader than the crime under Art. 1261 of the Criminal Code. The content of each of the conditions of application of restrictive measures is analyzed. It has been established that in the application of restrictive measures during the imposition of non-custodial sentences in practice there are problems with the interpretation of the relevant concept. It is proposed to clarify the meaning of the concept of «punishment not related to imprisonment» in Art. 911 of the Criminal Code. It is also established that the application of restrictive measures in releasing a person from criminal liability is a declarative norm and is subject to exclusion from the conditions of application of restrictive measures due to the incompatibility of the latter with the nature of exemption from criminal liability. The legislation clearly regulates the procedure for applying restrictive measures to persons released from serving a probation sentence. A number of problems that arise during the control over the behaviour of persons to whom restrictive measures have been applied by the probation authorities have also been identified. The solution to these problems is possible by harmonizing the provisions of the Criminal Code and the Law of Ukraine «On Probation», as well as other regulations governing the activities of probation bodies. It is proposed to refer the application of restrictive measures to supervisory probation, which will lead to a number of changes to the articles of the Law of Ukraine «On Probation» in terms of regulation of supervisory probation, to refer to probation subjects persons subject to restrictive measures, and to exclude the fact that it is assigned to a person released from serving a probation sentence, and in the regulations governing the development and implementation of probation programs to provide for their application to persons to whom restrictive measures have been applied. It is concluded that the probation body should be endowed with a coordinating function to implement all restrictive measures and it is necessary at the level of bylaws to establish a clear procedure for interaction of the probation body with the National Police, local state administrations and local governments to control the behaviour of individuals, which the appropriate restrictive measure is applied.

scholarly journals On determining the circle of domestic violence victims.

2021 ◽  
Vol 3 (3) ◽  
pp. 234-238
Author(s):  
Olha Bespal
Keyword(s):  
Domestic Violence ◽  
Criminal Law ◽  
Family Relations ◽  
Practical Importance ◽  
Criminal Code ◽  
Criminal Offense ◽  
Seeking Help ◽  
The Law ◽  
Restrictive Measures ◽  
Positive Step

It was stated that the problem of domestic violence for Ukraine remains relevant. This is evidenced not only by official statistics, but also by the number of people seeking help. A positive step in combating domestic violence is to complement the Criminal Code of Ukraine Art. 126-1. However, the disposition of this article contains some inaccuracies, among them the need to clarify which persons fall under the protection of this article. There is a similar problem in the draft Criminal Code of Ukraine, which the working group is currently working on. The article notes that an understanding of who may be victims of domestic violence as a criminal offense has a great scientific and practical importance. Because it will affect not only the correct criminal law qualification and the imposition of a fair and sufficient punishment, but also the application (or non-application) of restrictive measures against the offender, depending on how the person's actions will be qualified. The author analyzed the concepts of «close relations», «family relations», «close persons». As a result, it was concluded that these categories do not cover all persons protected by the Law of Ukraine «On Prevention and Counteraction to Domestic Violence». Therefore, to eliminate the inconsistency of criminal law with this Law, it is proposed in the disposition of Art. 126-1 «Domestic violence» of the Criminal Сode of Ukraine the phrase «concerning the spouse or the former spouse or other person with whom the guilty is (was) in family or close relations» and also in Art. 4.7.3. «Domestic violence» of the draft Criminal Code of Ukraine shall replace the phrase «concerning a spouse or other close person, including a former one» replaced by «concerning a person covered by the Law of Ukraine «On Prevention and Counteraction to Domestic Violence».

scholarly journals Restrictive measures of a criminal law nature in the system of legal regulation of prevention and to combat domestic violence

2021 ◽  
Author(s):  
А. Ye. Oliinychenko
Keyword(s):  
Domestic Violence ◽  
Criminal Law ◽  
Legal Regulation ◽  
Criminal Code ◽  
Security Measures ◽  
Criminal Offense ◽  
Preventive Work ◽  
Restrictive Measure ◽  
Restrictive Measures ◽  
Temporary Injunction

The article is devoted to the study of the system of state measures applied to persons, who are suspected, accused of committing or having committed domestic violence, as well as determining the place of restrictive measures of a criminal law nature in the proposed system. For this purpose, it is necessary to conduct an analysis of the legislative regulation of state measures applicable to persons suspected of committing or having committed domestic violence at all levels of №rmative legal regulation; to delimitate the terms “restrictive measure”, “precautionary measure”, “restrictive prescription” and “temporary prohibition injunction” and to analyse the expediency of the new term “security measures” proposed by the draft of the new Criminal Code of Ukraine. The result of the conducted study is an analysis of the existing state measures to combat domestic violence in order to form a system of special measures to combat domestic violence, as well as examination of the issue concerning the place of restrictive measures of a criminal law nature  applicable to persons having committed domestic violence. So, today, the system of special measures to combat domestic violence consists of types of measures to temporarily restrict the rights and obligations of the perpetrator who committed domestic violence, as well as to a person suspected, accused or committed a criminal offense related to domestic violence. The types of such measures are taking the offender into preventive registration and carrying out preventive work with him; referral of the offender to the offender program; a temporary injunction; a restrictive prescription of a civil nature a restrictive measure of a criminal procedure nature applicable to persons suspected or accused of committing domestic violence; and  a restrictive measure of a criminal nature nature applicable to persons who have committed domestic violence having different preconditions, grounds , subjects and the term of appointment, but have the sole intention of protecting persons suffering from domestic violence.

scholarly journals Direction for the program for abusers or probation program: a practical aspect

2021 ◽  
pp. 24-28
Author(s):  
Tetiana NIKIFOROVA
Keyword(s):  
Domestic Violence ◽  
Criminal Law ◽  
Criminal Code ◽  
Practical Aspect ◽  
Local State ◽  
Practical Application ◽  
Restrictive Measure ◽  
New Type ◽  
And Performance ◽  
Restrictive Measures

Introduction. Restrictive measures applied to perpetrators of domestic violence are a relatively new type of criminal law measure provided for in current criminal law. The legislative and scientific novelty of these measures, the inconsistency norms of legislative acts, which regulate the procedure for their appointment and implementation, cause problems and difficulties in their practical application. Purpose. Analysis of the practice of restrictive measures provided for in paragraph 5 of Part 1 of Art. 91-1 of the Criminal code of Ukraine, revealing of problems and difficulties of their appointment and performance and statement of offers concerning possible overcoming of these problems, by elimination of legislative gaps and contradictions. Results. The article analyzes the practice of prescribing and implementing such restrictive measures applicable to perpetrators of domestic violence as "direction for program for abusers" and "direction for probation program". Problems and difficulties that arise due to the ambiguity of the wording of criminal law, the inconsistency of regulations governing the appointment and implementation of relevant measures, as well as the lack of professionalism of the judges. In particular, it was established that the judges did not specify which restrictive measure provided for in paragraph 5 of Part 1 of Article 91-1 of the Criminal Code of Ukraine should be applied to the convict, because it contains two different in content and procedure. This makes it impossible to enforce the sentence. Also, the lack of a mechanism for interaction of probation authorities with local state administrations and local self-government authorities makes it impossible for probation authorities to exercise control over convicts who are sent to undergo a program for abusers. Conclusion. It is proposed to amend Art. 91-1 of the Criminal code of Ukraine, the Law of Ukraine "About probation" and other regulatory legal acts, for the purpose of elimination of the analyzed problems of application of restrictive measures.

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 PERLINDUNGAN HUKUM TERHADAP NOTARIS PENGGANTI YANG AKTANYA BERMASALAH DITINJAU DARI UNDANG-UNDANG NOMOR 30 TAHUN 2004 JUNCTO UNDANG-UNDANG NOMOR 2 TAHUN 2014 TENTANG JABATAN NOTARIS

Jurnal MINUTA ◽  
2019 ◽  
Vol 1 (1) ◽  
pp. 20-27
Author(s):  
Arif Hidayat
Keyword(s):  
Criminal Law ◽  
Tax Evasion ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Civil Law ◽  
Criminal Offense ◽  
Actual Reality ◽  
State Administration ◽  
The Law ◽  
The Right

Notary in making an authentic deed must be able to account for the deed if it turns out that in the future problems arise from the authentic deed both in terms of criminal law, civil law or State administration. The problems arising from the deed made by the Notary need to be questioned whether it is the result of an error from the Notary or the error of the viewer who does not provide information in accordance with the actual reality to the Notary. Such negligence or error can occur because the Notary in question is lacking or does not understand the construction or legal actions desired by the viewer so that the deed made is contrary to the provisions of the law. Such negligence or error can also be deliberately carried out by the concerned Notary. This study focuses on Law Number 30 Year 2004 as amended by Law Number 2 of 2014 concerning Notary Position wherein this study discusses the Notary who is unable to carry out his position so he has the right to submit written leave request and at the same time accompanied by the appointment of a substitute notary. After a while, a lawsuit from a party that feels aggrieved results from the deed made by Si X as a Substitute Notary. The results of this study concluded that a notary who leaves as a substituted notary has responsibility for the deed made by his successor notary even though he is on leave from his position where the responsibility is in the form of civil liability, if the substitute notary commits an error within the scope of authority given by a notary to a substitute notary. So in that case the notary is also liable for losses suffered by the parties due to the deed made by the substitute notary. Because the notary who is replaced is the owner of the office, if the notary of origin will file leave then he will appoint an employee from his own office as a substitute notary. Criminal responsibility, in the case of a criminal offense, a notary who is replaced is not responsible, for example in the case of tax evasion. Criminal liability can only be imposed on a substitute notary if he makes a mistake outside his authority as a substitute notary. Then the notary whose leave cannot be held accountable. The substitute notary is also entitled to get the same protection and legal guarantees because every citizen has the same rights before the law.

scholarly journals Problems of criminal liability for illegal amber mining in Ukraine

2021 ◽  
pp. 113-117
Author(s):  
R.O Movchan ◽  
A.A Vozniuk ◽  
D.V Kamensky ◽  
O.O Dudorov ◽  
A.V Andrushko
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Main Type ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Offense ◽  
Scientific Methods ◽  
Illegal Mining ◽  
General Scientific ◽  
The Subject

Purpose. Critical analysis of the criminal law provision on illegal mining of amber, identification of its shortcomings, development of proposals for their elimination. Methodology. The system of philosophical, general scientific and specific scientific methods and approaches, which have provided objective analysis of the subject under consideration, in particular, the method of systemic and structural analysis, specific sociological, statistical, comparative, formal-logical methods. Findings. Shortcomings of the criminal law provision on illegal mining, sale, acquisition, storage, transfer, shipment, transportation and processing of amber, in particular, unjustified expansion of the criminal law prohibition under consideration, unsuccessful design of the main and qualified components of the criminal offense under review, as well as unjustified sanctions. Originality. The authors have been among the first researchers in the domestic criminal law doctrine to provide a comprehensive critical understanding of the provision dedicated to the regulation of criminal liability for illegal amber mining, which has made it possible to develop scientifically based recommendations for improving domestic criminal law. Practical value. Based on the research results, specific proposals addressed to domestic parliamentarians have been developed, which can be taken into account in the process of further lawmaking in terms of updating relevant provisions of the Criminal Code of Ukraine. It is argued that the improved Art. 240-1 should only cover illegal mining of amber. The main structure of the researched criminal offense is proposed to be designed as material. It has been proven, including through references to specific law enforcement materials, that sanctions of Part1 of Art. 240-1 of the Criminal Code of Ukraine should provide for a fine as the only non-alternative main type of punishment, while referenced to alternative punishments in the form of a fine and imprisonment should be included in Parts 2 and 3.

The Structure of Criminal Liability: Complicity

1996 ◽  
Vol 30 (1-2) ◽  
pp. 146-153
Author(s):  
Miriam Gur-Arye
Keyword(s):  
Criminal Law ◽  
Mental State ◽  
Criminal Liability ◽  
Criminal Code ◽  
Draft Code ◽  
Actus Reus ◽  
The Law ◽  
Definition Of

The notion of “wrongdoing” is not recognized by the Draft Code. Nor does it classify the criminal law defences as either justification or excuse. Rather, the Draft Code distinguishes between “an offence” and “an act”. The term “offence” is used to cover cases where theactus reusis committed with the mental state required by the definition of the offence, by an offender who is criminally liable. An offender who has a defence, even a personal one, such as insanity, mistake, or duress, commits “an act”. The term “act” is used to indicate that defences negate the criminal nature of the act.I have elsewhere elaborated on the question whether or not a criminal code which aims to reform the criminal law should distinguish between justification and excuse. There I have both discussed and evaluated,inter alia, the proposals of the Draft Code in this context. Therefore, I shall not elaborate on this subject any further. I shall rather focus on the law of complicity and shall discuss three main issues.

scholarly journals THE HUNGARIAN LAWS ON BRINGING LEGAL ENTITIES TO CRIMINAL LIABILITY

2019 ◽  
Vol 8 ◽  
pp. 73-80
Author(s):  
Aleksandr V. Fedorov ◽  
◽  
Keyword(s):  
European Union ◽  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Code ◽  
The European Union ◽  
Legal Entity ◽  
Criminal Procedure Law ◽  
The Law ◽  
Legal Entities

The article is dedicated to the issues of introduction of criminal liability of legal entities in Hungary. Attention is paid to the fact that the establishment of criminal liability of legal entities in this country has been largely caused by the need for bringing its national laws in compliance with the provisions of a number of acts of the European Union (EU) and its membership in the Organization for Economic Cooperation and Development (OECD). The Hungarian legal acts on criminal liability of legal entities are reviewed; the main of them are the special omnibus law On Measures Applicable to Legal Entities within the Framework of Criminal Law 2001 which came into effect on May 1, 2004, and contains provisions of criminal and criminal procedure law as well as the Hungarian Criminal Code 2012 which came into effect on July 1, 2013. It is indicated that under the Hungarian laws, a legal entity is a criminal liability subject criminal law measures are applicable to. At the same time, it is highlighted that not all legal entities can be held criminally liable. It is noted that criminal liability of legal entities is possible in case of any willful violation of the Hungarian Criminal Code by an individual acting in the interests of a legal entity in case of the presence of conditions stipulated by the law. Criminal law measures applicable to legal entities are named: liquidation, fine, restriction of activity. A conclusion is made that in Hungary, criminal liability of a legal entity is understood as application of criminal law measures to a legal entity by court in the course of a criminal procedure in the event of a willful crime (criminally punishable act) committed by an individual acting in the interests of the corresponding legal entity upon the presence of conditions stipulated by the law On Measures Applicable to Legal Entities within the Framework of Criminal Law 2001.

scholarly journals OFFENSE - THE ONLY GROUND FOR CRIMINAL LIABILITY

2014 ◽  
Vol 8 (4) ◽  
pp. 149-156
Author(s):  
Laura-Roxana Popoviciu
Keyword(s):  
Rule Of Law ◽  
Social Relations ◽  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
The Rule Of Law ◽  
The Social ◽  
The Law

This study aims to examine the offence as the only ground for criminal liability. Article 15, paragraph 2 of the Criminal code provides that: “offences are the only grounds for criminal liability”, which implies the existence of an act, which is detected by the bodies empowered under the law in the form required by law, and also this principle comes as a guarantee of the person’s freedom because, without committing an act provided for by the law as an offense, the criminal liability cannot exist.The criminal liability is one of the fundamental institutions of the criminal law, together with the institution of the offence and of the sanction, set in the various provisions of the Criminal code.As shown in the Criminal code, in Title II regarding the offence, there is a close interdependence among the three fundamental institutions. The offence, as a dangerous act prohibited by the criminal rule, attracts, by committing it, the criminal liability, and the criminal liability without a sanction would lack the object. It obliges the person who committed an offence to be held accountable for it in front of the judicial bodies, to bide the sanctions provided for by the law, and to execute the sanction that was applied.The correlation is also vice-versa, meaning that the sanction, its implementation, cannot be justified only by the existence of the perpetrator’s criminal liability, and the criminal liability may not be based only on committing an offence.The criminal liability is a form of the judicial liability and it represents the consequence of non-complying with the provision of the criminal rule. Indeed, the achievement of the rule of law, in general, and also the rule of the criminal law implies, from all the law’s recipients, a conduct according to the provisions of the law, for the normal evolution of the social relations.

scholarly journals Providing police with an urgent restraining order as a special measure to combat domestic violence in administrative offenses

2020 ◽  
pp. 291-294
Author(s):  
Кaterina Guseva ◽  
Ivanna Gorbach-Kudrya
Keyword(s):  
Domestic Violence ◽  
General Mechanism ◽  
Criminal Offense ◽  
Restraining Order ◽  
Special Measure ◽  
Preventive Activity ◽  
Internal Affairs ◽  
Restrictive Measures ◽  
National Police ◽  
Protection Of Life

The article presents a model of complementation of functions of authorized units of the National Police and distinguishes their actions in the general mechanism of preventive activity in preventing and combating domestic violence. Urgent injunction against the abuser is a special measure to counter domestic violence, used by authorized units of the National Police of Ukraine as a response to the fact of domestic violence and aimed at the immediate cessation of domestic violence, eliminating the danger to life and health of victims and preventing injuries and preventing injuries. committing such violence. The conditions for its removal are the existence of a direct threat to the life or health of the victim. The current procedure for issuing an urgent restraining order by police involves the use of a special measure to counter domestic violence against the offender in the situation of committing physical domestic violence as a criminal offense, not an administrative offense. The Code of Administrative Offenses does not provide for measures to ensure administrative offenses against offenders in order to end domestic violence. At the same time, the Code of Criminal Procedure contains a provision allowing restrictive measures to be applied to a person suspected of committing domestic violence as a criminal offense. The lack of adequate regulatory support in the Code of Administrative Offenses concerning the issuance of an urgent restraining order as a special measure limits the preventive activity of units of the National Police of Ukraine in countering domestic violence as an administrative offense. The authors of the article propose to supplement Chapter 20 of the Code of Administrative Offenses, as well as to streamline the order of the Ministry of Internal Affairs of 01.08.2018 №654 and the interagency order of the Ministry of Social Policy of Ukraine and the Ministry of Internal Affairs of 13.03.2019 № 369/180. The proposed changes do not contravene the Law of Ukraine "On the National Police", which allows a police officer to require a person (persons) to leave a certain place for a certain period or to prohibit or restrict persons from access to a designated territory or objects, if necessary for the protection of life and health. people.

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