However, if Anna alleges that she did not intend to take the book, this is an argument stating that there was no intention to permanently deprive the mens rea remains unproved and theft cannot be proved. These issues can be more easily seen in Figure 7.11. Figure: 7.11: the actus reus (act) and mens rea (mental intent) of theft 7.9 MAKING IT ‘REAL’—R v ANNA This chapter has given a brief explanation and has demonstrated the forms of, and the relationship between deductive and inductive reasoning. At the same time it has also introduced the two-part nature of most legal rules relating to criminal offences, the physical act (actus reus) and the mental act (mens rea). To make these distinctions come to life the rest of this section will deal with a fictitious criminal case of R v Anna. Anna has been accused of stealing a book from a shop. The first relationship that R v Anna will be used to show is that between deductive and inductive reasoning. The two approaches to reasoning are set out in Figure 7.12. Both the inductive and the deductive forms are for the prosecution. Can you rephrase them to provide inductive and deductive forms in favour of the defence?

2012 ◽  
pp. 233-233

through the premises. The conclusion is logically compelled and cannot be attacked. The major premise, however, may be targeted for argument. The major premise of the deductive syllogism that has been considered in this chapter (see Figure 7.12, above) was expressed as: • To steal is to act contrary to the Theft Act. This can be expressed in a more specific manner and still remain general: • It is contrary to s1(1) of the Theft Act to dishonestly appropriate property belonging to another with the intention of permanently depriving that other. The entire de ductive argument can then be set out as shown in Figure 7.14, below. Figure 7.14: a deductive argument Major premise (general) • It is contrary to s1(1) of the Theft Act to dishonestly appropriate property belonging to another with the intention of permanently depriving that other. Minor premise (particular) • Anna dishonestly appropriated a book the property of X store with the intention of permanently depriving the store of it. Conclusion (compelled) • Anna has acted contrary to s1(1) of the Theft Act. We could still attack the minor premise by using it as the thesis of inductive reasoning. However, this time we want to attack the major premise. One way of doing this is to check the interpretation of the words and phrases in the major premise in so far as they replicate s1(1) of the Theft Act. What do you consider to be the meaning of the phrases: • intention to permanently deprive (mens rea); • dishonestly (actus reus); • property (actus reus). These are important words and phrases that may well become the focus of legal argument in the court. We will note later in this chapter how these words and phrases are of major importance in a theft case. In order to explore their meaning, it is necessary to consult other cases where these words and phrases in the Theft Act 1968 have been discussed. Figure 7.15, below, sets out two opposing deductive arguments: one affirming the central deductive argument and one setting out to deny it. This type of structure is the skeleton of the majority of arguments revolving around the use of facts and legal authority to resolve legal dispute in a trial scenario.

2012 ◽  
pp. 236-236

Wajah Hukum ◽  
2020 ◽  
Vol 4 (1) ◽  
pp. 67
Author(s):  
Maryati Maryati ◽  
Usman Usman

The neglect of the household in its realm belongs to the realm of civil liability, but can have implications for criminal liability. This article aims to explain the relationship between civil and criminal liability for the neglect of the household. Civil liability of perpetrators of household neglect is based on losses due to neglect of the household, so the perpetrators are required to compensate. Peberian compensation based on the principle of law that the obligations of the husband in accordance with their abilities. Criminal liability is based on the fulfillment of the actus reus element in Article 9 of the Domestic Violence Act, and the mens rea element is intentional or negligent of the perpetrator. Fulfillment of civil liability perpetrators of neglect of the house in khakhatnya eliminate the offensive nature of the perpetrator, so that it should be the basis for stopping the criminal justice process, but there is no legal mechanism that regulates. That is possible through probationary criminal institutions (Article 14a KUHP). For this reason, it is necessary to have rules related to restorative justice and the application of the principle of ultimum remedium in the rules on domestic protection that prioritize civil accountability. 


Author(s):  
Richard Holton

This paper develops an account of core criminal terms like ‘murder’ that parallels Williamson’s account of knowledge. It is argued that while murder requires that the murderer killed, and that they did so with a certain state of mind, murder cannot be regarded as the conjunction of these two elements (the action, the actus reus, and the associated mental element, the mens rea). Rather, murder should be seen as a primitive notion, which entails each of them. This explains some of the problems around criminal attempt. Attempted murder cannot be seen simply as involving the state of mind of murder minus success; rather, it has to be seen as a self-standing offence, that of attempting to commit the murder.


2019 ◽  
Vol 83 (6) ◽  
pp. 450-472
Author(s):  
Susan SM Edwards

Anger, its part in human conduct and in crime commission has been much discussed and accorded a privileged status within the law, while the role of fear has been less considered. Notwithstanding, fear and related emotional states have received some recognition as intrinsic elements of the perpetrator’s object integral to the actus reus of certain offences and relevant to the defendant’s mens rea of some defences. The harm caused by deliberately or negligently instilling fear in another is inconsistently considered in law as is its impact on criminal responsibility and mens rea. Fear has been recently acknowledged as a permissible cause of loss of self-control in a partial defence to murder (Coroners and Justice Act 2009 s 55(3)). It remains a contested emotion and as with anger the male experience of what circumstances trigger fear predominates.


2017 ◽  
Vol 10 (1) ◽  
pp. 63-89 ◽  
Author(s):  
Jozef Valuch ◽  
Tomáš Gábriš ◽  
Ondrej Hamuľák

Abstract The aim of this paper is to evaluate and differentiate between the phenomena of cyberwarfare and information warfare, as manifestations of what we perceive as postmodern warfare. We describe and analyse the current examples of the use the postmodern warfare and the reactions of states and international bodies to these phenomena. The subject matter of this paper is the relationship between new types of postmodern conflicts and the law of armed conflicts (law of war). Based on ICJ case law, it is clear that under current legal rules of international law of war, cyber attacks as well as information attacks (often performed in the cyberspace as well) can only be perceived as “war” if executed in addition to classical kinetic warfare, which is often not the case. In most cases perceived “only” as a non-linear warfare (postmodern conflict), this practice nevertheless must be condemned as conduct contrary to the principles of international law and (possibly) a crime under national laws, unless this type of conduct will be recognized by the international community as a “war” proper, in its new, postmodern sense.


Global Jurist ◽  
2018 ◽  
Vol 19 (1) ◽  
Author(s):  
Rossella Esther Cerchia

Abstract It is assumed that comparative legal studies, through its deep and historical analysis of law and its dissociation in legal formants, have contributed to understanding the importance of the different factors that shape legal rules. In this article, emphasis is given to a factor that is sometimes neglected in legal narrations: legal mentality or, more simply, the inherent logical way of thinking and its influence in shaping legal rules. The area of investigation is the legal relationship between principal and agent. It is a narration that selects a specific “fil rouge” to link different “pieces” throughout European history to compose a mosaic of different factors that may have contributed to developing a certain legal mentality in this area of law. The legal mentality is nothing more than the product of the extra-legal contexts in which principal and agent operate. In reference to the extra-legal context, it means the importance, above all, of the situations of proximity between the two parties: proximity that could be “spacial” (i.e., they are part of the same small community), or “relational” governed by extra-legal forms of belonging to the same group, for instance families (broader or narrower ones) or clans. This narration starts with a glance at the ancient agreement of mandatum and its roots in the Roman idea of “friendship” and personal bond. Then it continues by touching on a source of the medieval companies: the family bond, one of the stronger and more trustworthy relationships at the time. It will be shown that some aspects of that relationship are not dissimilar from the ones later formed by the case law of the English Chancery Court in the field of the law of agency. This could be seen as a result of the legacy of the stratification of a certain legal mentality shaped by a context that was created by extralegal relationships. Nowadays the modern fading of the personal bond between principal and agent has highlighted an important evolution: there was proximity then depersonalization: this is reflected in the evolution of legal rules, for instance, in French, Italian and English national law. Finally, the case of the “real” or “absolute” irrevocability of the authority shows that the agency relationship, constructed in a breeding ground characterized by trust and utilized to protect the principal's interest (or even the principal's interest), could become - through related or linked contracts - an instrument of more complex agreements. In these cases, the interest of the agent or third parties (such as creditors, contractual counterparts or “beneficiaries” in the broad sense) could lead those transactions far from the original idea of mandat or mandato or agency. In those situations, the “causa” of the agency  (to use a concept dear to civil law tradition) changes and its roots in personal bond and the principal's interest loses its strength as it is mirrored, once again, in the legal rules.


2016 ◽  
Vol 1 (1) ◽  
pp. 17
Author(s):  
Nurul Sasmita

The aims of this thesis is (1) to investigate andexplain the positions of corporations in conducting banking criminalacts, and (2) also to identify and explain the criminal responsibility ofbank as the perpetrator in banking criminal acts. This research isnormative, conceptual approach and the approach of legislationregarding responsibility principles of the corporation for banking criminalacts.Corporations have chances in committing a crime, especially bankingcriminal acts just by making a corporation recognized as a subject ofexistence apart from human beings, so that in practice there is a criminal offense committed by the corporation. The corporation takespart in the occurrence of a crime. In practice, the determination of acriminal offenseconducted by the corporation is known through two things: first, the works of the committee: they should be constructed as theyuse the principles of the liability of corporation’s criminal actions. Principally, stakeholders and officials or employees of a corporationhave the responsibility for its owncorporate actions; second, errors in the corporation,as long as it is in the science of criminal law, the overview of criminals is still oftenassociated with physical actions performed by the manufacturers(fysieke dader) but this can be overcome by the study of  "functionalactors" (functioneledader). We can prove that the action of committeeor employees of the corporation in the society act traffic concerned,the acts of the corporationerrors in the forms (dolus or culpa) must be regarded ascorporate faults.Towards the corporations that make banking criminal acts we canhave their responsibility with the principles of strict liability. Onthe principle of strict liability, it is known that the responsibility ison them even if they do not have the required mens rea. The substanceof this principle is that the perpetrator has been punished if theperpetrator may have provable conduct prohibited by the criminalprovision (actus reus) withoutsee the inner attitude. In this conception, the corporation is consideredhaving responsibility forphysical acts performed by management. A corporation convicted in principles isintended to develop a sense of justice in the corporation who commitsbanking criminal acts as stated in Article 46 paragraph (2), sothat if a corporation committed criminal acts, we can also have theresponsibility of the corporation. Keywords:Banking Criminal Acts, Corporation, ResponsibilityMenurut peraturan perundang-udangan, korporasi sebagai subyek hukum dapat dikenakan pidana sebagaimana manusia melakuka tindak pidana. Pada praktiknya, penentuan tindak pidana yang dilakukan oleh korporasi diketahui melalui dua hal, yaitu pertama tentang perbuatan pengurus yang harus dikonstruksikan sebagai perbuatan korporasimaka digunakanlah asas pertanggungjawaban pidana. Pada asas tersebut stakeholder maupun pengurus atau pegawai suatu korporasi, bertanggungjawab terhadap perbuatan korporasi itu sendiri. dan kedua tentang kesalahan pada korporasi, memang selama ini dalam ilmu hukum pidana gambaran tentang pelaku tindak pidana masih sering dikaitkan dengan perbuatan yang secara fisik dilakukan oleh pembuat (fysieke dader) namun hal ini dapat diatasi dengan ajaran “pelaku fungsional” (functionele dader). Kita dapat membuktikan bahwa perbuatan pengurus atau pegawai korporasi itu dalam lalu lintas bermasyarakat berlaku sebagai perbuatan korporasi yang bersangkutan maka kesalahan dalam bentuk (dolus atau culpa) mereka harus dianggap sebagai kesalahan korporasi. Terhadap korporasi yang melakukan tindak pidana perbankan dapat dimintai pertanggungjawaban pidana dengan menggunakan asas strict liability.Pada asas strict liability diketahui bahwa pembebanan tanggung jawab pidana kepada pelakunya sekalipun pelakunya tidak memiliki mens rea yang dipersyaratkan. Adapun substansi dari asas ini adalah pelaku sudah dapat dijatuhi pidana apabila pelaku telah dapat dibuktikan melakukan perbuatan yang dilarang oleh ketentuan pidana (actus reus) tanpa melihat sikap batinnya. Dalam konsepsi ini, korporasi dianggap bertanggung jawab atas perbuatan yang secara fisik dilakukan oleh pengurus (direksi dan komisaris). Dipidananya korporasi pada asas ini dimaksudkan dapat menimbulkan rasa keadilan pada korporasi yang melakukan tindak pidana perbankan, sehingga apabila korporasi melakukan tindak pidana maka korporasi juga dapat dimintai pertanggungjawaban.Kata kunci: Korporasi, Pertanggungjawaban, Tindak Pidana Perbankan


Actus Reus is known as the external element of the objective component of Criminal Law. Mens Rea, the guilty intention, determines the criminal responsibility. Mens Rea and Actus Reus both are the components of a criminal activity that determines the liability of the accused person. An action carried out in furtherance of criminal activity doesn’t become an attempted crime unless it is confirmed by the illegality for which it was conducted. An attempted crime is an action that reveals the illegal intention on its face. The aspects of a crime such as the Mens Rea, Actus Reus, intentional crime, unintentional act caused as a result of carelessness, motivates to indulge in violating the provisions of law. The four theories of law such as the rule of proximity, the test of unequivocally, the indispensable element approach and the test of social danger are the elements of a crime.


The basic issue surrounds whether the law has been broken. We have been told Mary has been charged with theft under s 1 of the Theft Act. We are to assume that the three statements provided containing all of the information in this scenario have been produced just for us to read and work on. For the purposes of this exercise we will assume that these statements were produced in ways not calling into doubt their admissibility or credibility. This means therefore that we only have to concentrate on their probative value. (What do they prove?) The seven point approach of Twining and Miers will be used. 1 Standpoint: the standpoint of the Chart is that of the author of this book demonstrating the Wigmore Chart Method for the purposes of demonstrating the method and argument construction. 2 Stages 2, 3 and 4: relate to setting up the propositions and then key listing and charting. The impossibility of approaching each task in an isolated way is immediately perceived as we are going to work from statements. We have to find out the facts before we can draft the UP, PP, and interim probanda. Task: so that you can appreciate the levels of analysis go back to the statements and highlight the key words and phrases that begin to allow you to break into them and locate the story, and the law. Then try to give answers to the following questions: (1) What are the relevant facts? (2) What key phrases in the statements give you clues as to the application of the law? (3) Can you construct the deductive argument for the prosecution? (4) Can you construct the inductive argument for the prosecution? (5) Can you construct the opposing inductive argument for the defence? (6) Are there any conditions of doubt in your mind surrounding the wording of s1(1) of the Theft Act which may apply? (For example questions surrounding the presence of both mens rea and actus reus.) DO NOT PROCEED UNTIL YOU HAVE ANSWERED QUESTIONS (1)–(6).

2012 ◽  
pp. 253-254

Sign in / Sign up

Export Citation Format

Share Document