scholarly journals Constitutional Questions of the Situational Legitimate Defence

2019 ◽  
Vol 8 (1) ◽  
pp. 65-74
Author(s):  
Ádám Mészáros
Keyword(s):  
Criminal Law ◽  
Comparative Law ◽  
Criminal Code ◽  
Constitutional Court ◽  
Wide Scope ◽  
Current Regulation ◽  
Fundamental Law

This study examines the problems surrounding legitimate defence as an institution of criminal law, as it is regulated by the Hungarian legislator, in an international and comparative law perspective. It further examines the compatibility of the current regulation with the requirements of the Fundamental Law of Hungary as well as the practice of the Constitutional Court. The author concludes that the pertinent text of Section 22, para. (2) of the Hungarian Criminal Code seems to be unconstitutional, rendering the wide scope of legitimate defence in comparison to the requirements of proportionality as objectionable.

scholarly journals Criminal Law Protection of Personal Secrets in Hungary

2019 ◽  
Vol 8 (1) ◽  
pp. 23-42
Author(s):  
Viktor Bérces
Keyword(s):  
Criminal Law ◽  
Historical Development ◽  
Medical Profession ◽  
Comparative Law ◽  
Criminal Code ◽  
Privileged Information ◽  
Legal Norms ◽  
Procedural Law ◽  
Wide Perspective ◽  
Offending Behaviour

The study analyses in detail and from a wide perspective the criminal law regulation applicable to the protection of personal secrets in Hungarian law. The author presents the historical development and comparative law context of the criminal substantive legal norms which defend personal secrets, especially in view of persons whose occupations or professions require handling such privileged information. Several norms applicable to specific professions (the clergy, the medical profession, and attorneys at law) as well as their implications in the light of the provisions of criminal and civil procedural law are also explored. The author concludes that it would be advantageous to use the expression ‘occupation’ in a wider sense and that the Hungarian Criminal Code should exemplify the secrets which often occur in everyday life and the exposure of which fits into the offending behaviour. Also, criminal and civil procedure should use the same rules for the exemption of persons bound by secrecy from having to testify as witnesses.

The Subject of a Crime Under Part 1 of Art. 282 of the Criminal Code of the Russian Federation

2021 ◽  
Vol 7 ◽  
pp. 87-92
Author(s):  
E. G. Bykova ◽  
◽  
A. A. Kazakov
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Practical Significance ◽  
Constitutional Court ◽  
Scientific Publications ◽  
Legal Method ◽  
The Subject ◽  
The Russian Federation ◽  
Administrative Code

The change in the disposition of Part 1 of Art. 282 of the Criminal Code of the Russian Federation led to questions from law enforcement officers about from what moment a person is considered to be held administratively liable and what to mean by the commission of a similar act. The article carries out a systematic legal analysis of the provisions of the Criminal Code of the Russian Federation and the Administrative Code of the Russian Federation, as well as the position of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation in order to formulate proposals for solving the indicated problems. The fundamental method was dialectical. The formal legal method was used in the study of regulations governing certain aspects of the legal assessment of unlawful acts that take into account administrative precedence. Using a comparative legal method, a distinction was made between situations where a person was ordered to be held administratively liable and an administrative penalty was imposed. Scientific publications on the subject were analyzed. It was concluded that the current version of Part 1 of Art. 282 of the Criminal Code of the Russian Federation, containing a formally indefinite legal category, raises the problem of calculating the one-year period during which a person can be prosecuted under this norm if there is an administrative precedence. In addition, it is justified that a «similar act» should be understood only as an administrative offense, responsibility for which is provided for in Art. 20.3.1 Administrative Code of the Russian Federation. The use of criminal law by analogy is unacceptable, therefore, it is proposed to amend the disposition of Part 1 of Art. 282 of the Criminal Code to eliminate the identified gap. The problem identified could be the basis for further scientific research. The practical significance is due to the fact that the positions formulated by the authors can be taken into account in the process of improving criminal law, when amending the relevant explanations of the highest court in this category of cases in order to form a unified practice of applying criminal law.

Strafrechtliche Gleichstellungsklauseln für ausländische und Europäische Amtsträger

2021 ◽  
Author(s):  
Sarah Pohlmann
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Public Official ◽  
Public Officials ◽  
Current Regulation ◽  
System P ◽  
Scope Of Application

Equality clauses are special provisions for foreign public officials extending the scope of application of Section 11 (1) of the German Criminal Code. The intention of this study is to examine the existing equality clauses with regard to their purpose, scope, and reach in order to place them in the context of the protection of foreign legal interests in German criminal law and thus contribute to the development of a system. Finally, it is discussed whether the existing equality clauses contribute to a fraying of the national concept of public official and whether the current regulation of the German concept of public official in Sec. 11 (1) No. 2 StGB should be reconsidered.

Einziehung ohne Verurteilung?

2021 ◽  
Author(s):  
Bastian Heuer
Keyword(s):  
Criminal Law ◽  
Constitutional Law ◽  
German Law ◽  
Comparative Law ◽  
Legal Framework ◽  
Criminal Code ◽  
Legal Nature

As an interface between constitutional and criminal law, this work addresses the legal framework of non-conviction-based confiscation in German law. It focuses on the question of the constitutionality of independent confiscation under Sec. 76a (4) of the German Criminal Code. To give a profound answer on this question, its substantive and procedural characteristics, as well as a comparative law approach, are examined. Based on these results, the legal nature of the provision is determined. This is preceded by general considerations on the determination of the legal nature, taking into account constitutional principles. It is ultimately worked out that Sec. 76a (4) of the Criminal Code must be viewed critically from a constitutional law perspective.

scholarly journals Clarity and predictibility of special justification cause laid down in article 226 para 4 d of the criminal code

2019 ◽  
pp. 11-24
Author(s):  
MIHNEA-VALENTIN STOICESCU
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Private Life ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The Past ◽  
Adequate Level ◽  
The Press ◽  
The Right ◽  
First Time

The Romanian legislature has shown great concern in the past few years in offering an adequate level of protection to all fundamental rights accordingly with the ECHR’s ever evolving jurisprudence. As such, the crime of violation of private life (article 226 Criminal Code) has been introduced, for the first time, in the Romanian criminal law. In its attempt to preserve the right balance between the freedom of the press and the right to private life, the Parliament has introduced a special justification clause, according to article 226 para. (4) d) Criminal Code. This article aims to analyze to what extent this clause respects the principles set by the ECHR and the Romanian Constitutional Court regarding the predictability and the clarity of the criminal law provisions. The article will also try to emphasize some aspects which could be taken into consideration by the judicial authorities when analyzing the applicability of the justification clause at least until there will be an early jurisprudence.

scholarly journals The impact of administrative prejudice upon the content of penal prohibition

2021 ◽  
pp. 99-115
Author(s):  
Sergei Gennadevich Losev ◽  
Viktor Ivanovich Morozov
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Constitutional Court ◽  
Criminal Record ◽  
Special Part ◽  
The Subject ◽  
General Part ◽  
The Russian Federation ◽  
The Impact

The object of this research is the legal relations arising in the context of implementation of the norms of criminal law of the Russian Federation that establish liability for repeated administrative offenses. The subject of this research is the practice of application the criminal law norms of the Soviet and post-Soviet periods that regulate the institution of administrative prejudice, and acts of interpretation of the Russian Constitution, in which the Supreme Constitutional Court of the Russian Federation deals with the problems of the use of separate articles of the Criminal Code of the Russian Federation that contain the norms with administrative prejudice, and parts of interrelation between the institutions of administrative prejudice and recurrence of offenses. The subject of this research is also justification of existence the institution of administrative prejudice in the national criminal law, main flaws in interpretation of the articles that describe the norms of the institution of administrative prejudice in the text of the Criminal Code of the Russian Federation. Taking into consideration all shortcomings in interpretation of the articles of the Criminal Code of the Russian Federation, the author offers unified definition of the composition with administrative prejudice. It is suggested to reintroduce the concept of recurrent offense in the General Part of the Criminal Code of the Russian Federation, taking into account the fact of administrative liability, outstanding criminal record, or criminal record that has not been expunged. The case if the legislator deems it necessary to take into account not identical, but homogeneous recurrence should be stipulated in the note to the article of the Special Part. The author also offers to include the Article 16.1 into the General Part of the Criminal Code of the Russian Federation in the following wording: “The repeated offense is considered an act committed by a person who has previously been subjected to administrative penalty for similar type of offense, unless stipulated otherwise in the corresponding articles of the Special Part of the effective Code”.

scholarly journals An Analysis of the Death Penalty in Indonesia Criminal Law

2017 ◽  
Vol 1 (2) ◽  
pp. 191 ◽  
Author(s):  
Eddy Rifai
Keyword(s):  
Mental Illness ◽  
Death Penalty ◽  
Criminal Law ◽  
Judicial Review ◽  
Mentally Ill ◽  
Criminal Code ◽  
Constitutional Court ◽  
Legal Policy ◽  
The Public ◽  
Public Reaction

This research uses normative juridical approach to study on the analysis of the death penalty executions and the legal policy of death executions in Indonesia. There are delays on death executions for the convicted person since they entitled to using rights namely filing a judicial review (PK/Peninjauan Kembali). Furthermore, the legal loophole in the execution of the death penalty by the publication of the Constitutional Court Number 107 / PUU-XIII / 2015 which assert that the Attorney as the executor can ask the convicted person or his family whether to use their rights or not if the convict clearly does not want to use his rights, the executions will be carried out. Legal policy on threats and the implementation of the death penalty in the draft of criminal code was agreed by draftsman of the bill with the solutions. The draftsman of the bill agrees that the death penalty will be an alternative punishment sentenced as a last resort to protect the society. The bill also regulates that the execution among others include that the execution can be delayed by ten years probations. If the public reaction on the convict is not too large or convict has regret and could fix it or the role in the crime is not very important and there is a reason to reduce punishment, the death penalty may be changed. For pregnant women and the mentally ill convicts the execution can only be carried after the birth and the person has recovered from mental illness. The existence of this solutions is still kept putting the death penalty in criminal law, whereas the effectiveness of the death penalty is scientifically still in doubt to solve crimes and to prevent crimes by the death penalty punishment.

scholarly journals The Theory of Criminal Law Should Not Be Reduced to the Analysis and Criticism of Criminal Legislation

2019 ◽  
Vol 14 (1) ◽  
pp. 121-140
Author(s):  
Anatoly Naumov
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Constitutional Court ◽  
Legal Nature ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Criminal Legislation ◽  
Principle Of Legality

In both normative and sociological senses criminal law includes three components — criminal legislation, judicial practice, and criminal law doctrine, and the development of this branch of law is possible only in their unity. The criminal law doctrine is to a certain extent superior to the other components of the "triad" and involves the development of the branch’s principles, goals and objectives. At the same time, the improvement of criminal law is not the only goal of the theory of criminal law. It should not be limited only to criticism of the current legislation and proposals for its improvement. However, the vast majority of modern domestic criminal law publications, such as monographs, articles in legal periodicals, dissertations, are devoted to criticism of the current Criminal Code of the Russian Federation. Indeed, the current criminal law is not perfect, but the "imbalance" of research into the "law-making" side significantly reduces the scope of criminal law doctrine. And there will always be demand for theoretical studies on the analysis of the subject and method, system and objectives of criminal law, its sources.Debatable, for example, still is the issue of the legal nature of the decisions of the Plenum of the Supreme Court of the Russian Federation and, in particular, the judgments of the Constitutional Court of the Russian Federation. The explanations of the Plenum of the Supreme Court are a special kind of judicial interpretation and a fairly reliable tool for the courts to understand "the letter of the criminal law" and it’s applicability to the particular case. As for the assessment of the legal nature of the judgments of the Constitutional Court of the Russian Federation, the criminal law doctrine often fails to notice that they touch upon the methodological problems of the theory of criminal law. In relation to a number of criminal law prohibitions, judgments of the Constitutional Court of the Russian Federation are a source of criminal law, along with the Criminal Code. The Constitutional Court of the Russian Federation specified the most important principle of criminal law — the principle of legality and clarified the characteristics of criminality of socially dangerous acts prohibited by criminal law, which is directly related to the issue of criminal liability. In this sense, the Constitutional Court formulated a new and important addition to the content of the principle of legality — the certainty of criminal law rules, and, first of all, the criminal law prohibitions. Thus, the judicial authority overtook the criminal law doctrine in solving one of the most important issues for criminal proceedings.

scholarly journals Unconstitutionality of articles 366-1, 368-2 of the criminal code of Ukraine: irony of fate or defects of the legislative process

2021 ◽  
pp. 102-110
Author(s):  
A.S. Habuda
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Legislative Process ◽  
Constitutional Court ◽  
Inaccurate Information ◽  
Control Department

The fight against corruption in Ukraine is giving rise to new ways of combating this phenomenon, new anti-corruption legislation is often being adopted and improved. Thus, among other things, in 2011 the Ukrainian parliament introduced criminal liability for illegal enrichment, and in 2014 – for declaring questionable information, supplementing the Criminal Code in accordance with Art. 368-2 and Art.366-1. However, despite their long-term duration in the structure of the criminal law mechanism for combating corruption, they have not become effective tools of anti-corruption struggle. Problems of application of Articles 366-1, 368-2 have been admitted from the very moment of their introduction in action as some serious defects in the construction of these norms were placed in the course of legislative process. In the end, based on the decision of the Constitutional Court of Ukraine, these articles expired. Given that the purpose of the article is to investigate the process of legislation and to establish the reasons for the adoption of deliberately ineffective rules on the declaration of inaccurate information and illicit enrichment. The scientific novelty is that the study indicates the inability of the Verkhovna Rada of Ukraine, which includes the Institute of legislation, scientific and expert management, legal management, the department of relations with the judiciary, the control department and other units, to ensure quality at the appropriate level of results of legislative work. These "precautionary institutions" were unable to prevent the development, adoption of imperfect and knowingly unconstitutional laws, as evidenced by examples of the introduction of liability under Articles 366-1, 368-2 of the Criminal Code and the introduction of repeated manipulative changes, after the entry into force.

scholarly journals Assessment of the the constitutionality of problems in the property protection through the means of criminal legislation of Republic of Moldova

2019 ◽  
pp. 43-52
Author(s):  
CORINA STRATAN
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Property Right ◽  
Constitutional Court ◽  
Republic Of Moldova ◽  
Unique System ◽  
The Republic ◽  
Criminal Legislation ◽  
Higher Law ◽  
Made In

The property right is a fundamental right guaranteed both in Romania and in the Republic of Moldova by the higher law - the Constitution, that is why “No one may be expropriated except for reasons dictated by public necessity, as established by law and against just and appropriate compensation made in advance”. By virtue of this constitutional guarantee the Criminal Code the only criminal law in the Republic of Moldova ensure an adequate protection of the property, whether it is public or private, through a unique system of regulations and sanctions. This article refers to the control of the constitutionality of the incriminating norms of the crimes against the property by the legal acts of the Constitutional Court, which is the only authority of constitutional jurisdiction. When exercising this control, the Court rules only on the conformity of the provisions criticized with the norms of the Constitution, and the referrals regarding the exceptions of unconstitutionality which concern not a normative but an exclusive act, its interpretation or application will be rejected as inadmissible and, this role will be attributed to the courts. However, in order to verify whether the rules under scrutiny comply with the constitutional provisions, the Court examining the complaint first makes clear the content of the provision, which is the exact meaning and then determines whether or not it is constitutional.

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