scholarly journals Los criterios jurisprudenciales para exigir responsabilidad penal a las personas jurídicas en el delito corporativo

2019 ◽  
pp. 327
Author(s):  
Miguel Ángel Morales Hernández
Keyword(s):  
Supreme Court ◽  
Corporate Crime ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Legal Entity ◽  
The Supreme Court ◽  
The Subject ◽  
Points Of View ◽  
Object Of Study ◽  
Derecho Penal

Las recientes reformas del Código Penal Español han supuesto una verdadera revolución en el ámbito de la responsabilidad penal de las personas jurídicas. A raíz de las mismas, el Tribunal Supremo ha dictado una serie de sentencias que han arrojado bastante luz acerca de cuáles han de ser los elementos o requisitos que configuran la base para la atribución de la responsabilidad penal a la persona jurídica. Analizando dichas sentencias, puede observarse el reconocimiento del delito corporativo, caracterizado por contar con sus propios elementos, distintos a los exigibles a las personas físicas. Pues bien: este trabajo tiene como principal objeto de estudio la doctrina del Tribunal Supremo sobre esta materia con la finalidad de inferir cuál es la posible configuración del delito corporativo en atención a estos pronunciamientos jurisprudenciales, a los principios del derecho penal, así como al propio tenor literal de la ley. Ante esta situación, diferentes autores se han ido posicionando acerca de la fundamentación de la responsabilidad penal de las personas jurídicas; así como de la concreta estructura del delito corporativo. Se analizan también sus diferentes puntos de vista señalando que sus visiones del tema son muy dispares.Recent reforms of the Spanish Penal Code have supposed a real revolution in the area of criminal liability of legal entity. As a result of that, the Supreme Court has issued a series of judgments that shed light on which should be the elements or requirements that form the basis for the attribution of criminal responsibility to the legal entity. Analyzing these jurisprudential pronouncements, we can observe the recognition of corporate crime, characterized by having its own elements, different from those required of natural persons. Well, this work has as its main object of study the doctrine of the Supreme Court on this matter with the purpose of inferring what is the possible configuration of the corporate crime in attention to these jurisprudential pronouncements, to the principles of criminal law, as well as to the own literal tenor of the law. Faced with this situation, different authors have been positioning themselves on the basis of the criminal liability of legal entity; as well as the concrete structure of corporate crime. Their different points of view are also analyzed, pointing out that their views on the subject are very different.

scholarly journals Pozaustawowy kontratyp działania w ramach uprawnień wynikających z prawa do obrony w kontekście nowelizacji art. 233 §1 Kodeksu karnego

2021 ◽  
Vol 28 (2) ◽  
pp. 91-123
Author(s):  
Dominika Lapawa
Keyword(s):  
Criminal Responsibility ◽  
Criminal Liability ◽  
Legal Basis ◽  
Constitutional Principle ◽  
Division Of Powers ◽  
The Supreme Court ◽  
The Subject ◽  
The Right ◽  
Constituent Elements ◽  
Domestic Law

The work is devoted to the non-statutory justification of action in the scope of the right to defence, whose purpose was the exclusion of criminal responsibility for giving false testimony by a witness – the actual perpetrator – in his or her case. It was emphasised that the defence which heretofore resulted from Art. 182 and 183 kk was insufficient for the witness. One discussed inter alia the legal basis of the justification, its constituent elements, one indicated the  controversies which were caused by the concept of justification, and which to a great extent were associated with the violation, by the Supreme Court, of the constitutional principle of the tripartite division of powers and with the substantive and temporal limits of the right to defence which result both from the norms of international and domestic law. One indicated the position of the representatives of the doctrine as to the concept of justification. Scholarship on the subject, even though it did not take a uniform stand in reference to the problem in question, basically discerned the necessity of the improvement of the situation of the witness – the actual perpetrator, who, testifying in his or her own case, would run the risk of self-incrimination. The considerations of the doctrine resulted in numerous alternative propositions de lege ferenda. In the work, one suggests to seek such a solution in the substantive approach to the nemo se ipsum accusare tenetur rule. Then it was emphasised that the problem of justification once again became the subject of discussion owing to the amendment issued on 11 March 2016 about the modification of the act of law – The Code of Criminal Procedure and certain other acts of law Art. 233 §1a kk. At that time one penalised the behaviour of a witness, who in fear of criminal liability to be faced by the witness or his relatives gives false testimony or conceals the truth. For the sake of recapitulation, one indicated that the amendment which was described above rendered the justification in question invalid, and the perpetrator who is heard in a court of law as a witness continues de lege lata to be entitled to use the right to refuse to answer the question from Art. 183 §1 kpk. One emphasised that the doctrine recurrently discerned the shortcomings of defence which result from Art. 183 §1 kpk. Above all the institution from Art. 183 §1 kpk was not intended for a witness – the actual perpetrator. Therefore, in the article, in order to realise the warranty nature of the entitlement in question one suggests that this admonishment should be rendered obligatory, so that every witness would be aware that the right exists and that he or she may exercise it.

scholarly journals Criminal Liability in Environmental Crimes Committed by Corporations after the Supreme Court Regulation Number 13 of 2016 at Indonesia

2020 ◽  
Vol 4 (1) ◽  
Author(s):  
Fitriani Rahmadia ◽  
Hari Sutra Disemadi ◽  
Nyoman Serikat Putra Jaya
Keyword(s):  
Supreme Court ◽  
Corporate Crime ◽  
Criminal Liability ◽  
Legal Research ◽  
Criminal Sanctions ◽  
The Supreme Court ◽  
The Law ◽  
Legal Consequences ◽  
Environmental Crimes ◽  
Legal Entities

Corporations are organized groups of people and / or properties, both in the form of legal entities or non-legal entities. In relation to the corporation as a legal subject in environmental crime, it is formulated in Article 1 number 32 of the Law Number 31 Year 2009 about Environmental Protection and Management, each person is an individual or business entity, both legal entities and non-legal entities. The context of corporate crime in the environment is still not solid enough to ensure corporations in criminal sanctions because there is no legal basis regarding the procedures for handling environmental crimes committed by corporations. The Supreme Court Regulation Number 13 of 2016 concerning Procedures for Handling Corporate Crime provides a basis for enforcement of criminal law, then the purpose of writing this article is to find out the form of criminal liability for corporations for environmental crimes and legal consequences after the Supreme Court Regulation Number 13 of 2013.The type of research used is legal research which is included in the normative legal research typology where this study focuses on positive legal norms in the form of legislation. The theory used by the author in analyzing is using the theory of criminal liability which is based on the principle of legality. The conclusions include: criminal sanctions that can be applied to corporations based on Article 4 of Supreme Court Regulation Number 13 of 2016 are in the form of criminal fines, additional crimes, and disciplinary actions except prisons and confinement. Last, the legal consequences of the application Article 25 Supreme Court Regulation Number 13 of 2016 with the principal criminal is a criminal fine and then the criminal added according to the law governing environmental criminal acts is the Law Number 32 Year 2009 concerning Environmental Protection and Management.

scholarly journals Consequences of failure to pay a court fine

2020 ◽  
Vol 11 (3) ◽  
pp. 639-650
Author(s):  
Nina Yu. Skripchenko ◽  
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Prosecution ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Legislative Regulation

The article discusses issues that arose during enforcement of the new grounds for exemption from criminal responsibility, enshrined in 2016, in connection with a court fine (Article 76.2 of the Criminal Code). Despite the criticism of its legislative regulation, demand for a new way of ceasing criminal prosecution began to appear in connection with the non-payment of a fine. Having determined the voluntary execution of a court fine, the legislator did not settle the issue of the further execution of the fine in cases where there are valid reasons for non-payment. After analyzing the existing proposals to solve this problem, the author confirms that the elimination of the gap would be facilitated by the legislative obligation of the bailiff to establish the circumstances by which the judicial penalty is not paid, as well as the addition of the list of decisions made by the bailiff to suspend enforcement proceeding. Analysis of judicial practice showed that Art. 76.2 of the Criminal Code began to be applied in cases where the court has justification for implementing less onerous grounds for the defendant to be exempt from criminal liability. Legislative duplication of the conditions under which criminal prosecution can be terminated for various reasons calls into question the wide alternative of the latter, as well as the embodiment of the idea of humanizing criminal law, which is the basis for securing a new ground for exemption from criminal liability. The article substantiates the proposal to supplement the Resolution of the Plenum of the Supreme Court dated June 27, 2013 with a provision allowing the release of a person from criminal responsibility with a judicial fine in cases where the court has no basis for suspending criminal prosecution for unconditional types of exemption from criminal liability. The author draws attention to the gap in the legislation, part 3 of Article 78 of the Criminal Code, which is related to the renewal of the statute of limitations for criminal liability when an individual avoids paying a court fine.

scholarly journals Kedudukan Peraturan Mahkamah Agung Nomor 13 Tahun 2016 Dalam Mengatasi Kendala Penanggulangan Tindak Pidana Korporasi (The Role Of Regulation Of The Supreme Court Number 13 Year 2016 In Overcoming Obstacles Of Corporate Criminal Infringement)

2018 ◽  
Vol 9 (1) ◽  
Author(s):  
Budi Suhariyanto
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Corporate Crime ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Corruption Case ◽  
The Supreme Court ◽  
Criminal Procedure Law ◽  
The Subject

The prevention of corporate crime in Indonesia is constrained due to unclear management of corporate crime. In order to overcome the imperfection of such arrangements, the Supreme Court issued Supreme Court Regulation No.13 of 2016 on the Procedures for Corruption Case Handling by Corporations. There are questions that arise, what are the obstacles faced by Law Enforcement in an effort to overcome corporate crime and how the role of Perma No. 13 of 2016 in overcoming the obstacles to overcome the criminal act of the corporation? Normative legal research method is used to answer the problem. Normatively, from various laws governing the corruption of the subject of crime, there is no detailed formulation of corporate handling procedures so that law enforcers experience difficulties in conducting the criminal proceedings against the corporation. Article 79 of the Law on the Supreme Court provides the legal basis that if there is a legal deficiency in the course of the judiciary in any case, the Supreme Court has the authority to enact legislation to fill such shortcomings or vacancies. Perma No.13 of 2016 can be used as a guide for Law Enforcement to overcome technical obstacles of corporation criminal procedure law. Nevertheless, Perma has limitation so that required update of corporation criminal procedure in RKUHAP. AbstrakPenanggulangan tindak pidana korporasi di Indonesia mengalami kendala akibat tidak jelasnya pengaturan penanganan tindak pidana korporasi. Dalam rangka mengatasi ketidaksempurnaan pengaturan tersebut, Mahkamah Agung menerbitkan Peraturan Mahkamah Agung No.13 Tahun 2016 tentang Tata Cara Penanganan Perkara Tindak Pidana Oleh Korporasi. Ada pertanyaan yang mengemuka yaitu apa saja kendala yang dihadapi Penegak Hukum dalam upaya menanggulangi tindak pidana korporasi dan bagaimana peran Perma Nomor 13 Tahun 2016 dalam mengatasi kendala penanggulangan tindak pidana korporasi tersebut? Metode penelitian hukum normatif digunakan untuk menjawab permasalahan tersebut. Secara normatif, dari berbagai peraturan perundang-undangan yang mengatur korporasi subjek tindak pidana, tidak dirumuskan detail tata cara penanganan korporasi sehingga penegak hukum mengalami kendala dalam melakukan proses pemidanaan terhadap korporasi. Pasal 79 Undang-Undang tentang Mahkamah Agung memberikan dasar hukum bahwa apabila dalam jalannya peradilan terdapat kekurangan atau kekosongan hukum dalam suatu hal, Mahkamah Agung memiliki wewenang membuat peraturan untuk mengisi kekurangan atau kekosongan tersebut. Perma No. 13 Tahun 2016 dapat dijadikan pedoman bagi Penegak Hukum untuk mengatasi kendala teknis hukum acara pidana korporasi. Namun, Perma tersebut memiliki keterbatasan sehingga diperlukan pembaruan hukum acara pidana korporasi dalam RKUHAP.

scholarly journals Formulasi Pertanggungjawaban Pidana Korporasi Dengan Adanya Peraturan Mahkamah Agung No. 13 Tahun 2016

2018 ◽  
Vol 21 (02) ◽  
pp. 1-11
Author(s):  
Michelle Kristina
Keyword(s):  
Supreme Court ◽  
Corporate Crime ◽  
Criminal Responsibility ◽  
Positive Impact ◽  
Criminal Cases ◽  
Procedural Law ◽  
Criminal Offenses ◽  
The Supreme Court ◽  
Law Enforcement Officials ◽  
Legal Subjects

The development of the concept of corporation not only had a positive impact but also followed by the development of crimes that could be done using corporations or also called corporate crime. Many laws and regulations that have accommodated corporation as legal subjects that can be asked for corporate criminal responsibility have not been followed by regulations governing procedures or procedures for examining corporations as perpetrators of criminal acts. This is very necessary because of the differences in characteristics between corporate crime and other conventional crimes. Responding to legal requirements that have been very urgent and there are distinct challenges for law enforcers because of the different treatment, then the Supreme Court issues Supreme Court Rules No. 13 of 2016. The problem regarding the procedure for corporate sentencing involved in criminal offenses is not only talking about material law but also about formal law or its procedural law. One of the aims and objectives of its formation is to fill the vacuum of criminal procedural law which until now has not regulated the procedures for handling corporations that carry out criminal cases. Supreme Court Rules No. 13 of 2016 is a legal rule aimed at assisting law enforcement officials in handling criminal cases with corporate actors and/or their administrators. This then became one form of thinking that could be the basis for assisting in the formation of criminal procedural laws governing corporations.

scholarly journals Conclusions of the Supreme Court on the subject of trading in influence (Part 2 of Article 369-2 of the Criminal Code of Ukraine): a critical theoretical analysis

2021 ◽  
Vol 1 (15) ◽  
pp. 162-190
Author(s):  
Vasyl Mykolaiovych Kyrychko
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Public Services ◽  
Criminal Responsibility ◽  
Criminal Code ◽  
Criminal Court ◽  
Correct Definition ◽  
The Supreme Court ◽  
The Subject ◽  
New Interpretation

The article analyzes the conclusion of the Joint Chamber of the Criminal Court of Cassation of the Supreme Court (cited in the decision of March 29, 2021) on the recognition of the subject of trading in influence (Part 2 of Article 369-2 of the Criminal Code of Ukraine) of any natural person who has reached the age of criminal responsibility. It has been established that such an interpretation of the characteristics of the subject of this crime may cause negative legal consequences of a systemic nature. In particular, such an interpretation may lead to a violation of the system of criminal law on corruption bribery, which is already provided for in the Criminal Code of Ukraine, and according to which the trading in influence by officials or persons providing public services qualifies under Article 369-2. As a result of the new interpretation of the signs of the subject of trading in influence, certain types of such a crime will be qualified under Article 368 of the Criminal code of Ukraine, and Article 369-2 will cease to be such that in all cases has signs of corruption. Such a decision does not comply with the provisions of the UN Convention against Corruption, in which the trading in influence under Article 18 of the Convention is recognized as an independent type of corruption crimes. Expanding the range of subjects of crime under Part 2 of Article 369-2 of the Criminal code of Ukraine will also lead to competition of this article with other articles of this Code about non-corruption crimes. Article 369-2 will have an advantage in application and provide for stricter liability, but there is no legal basis for such an increase in liability. Similarly, Article 369-2 may unreasonably apply to actions that are not socially dangerous. It is substantiated that the provisions of Part 3 of the note to Article 354 of the Criminal code of Ukraine have direct value for correct definition of the subject of trading in influence (Part 2 of Article 369-2 of the Criminal Code). According to them, as well as taking into account the systemic links of this criminal law, the subjects of this crime should be recognized as an official or a person who provides public services. This article of the Code should be criminally liable for bribery to trading in influence (opportunities) associated with the official (in a broad sense) powers of such persons.

scholarly journals CRIMINAL LIABILITY OF LEGAL ENTITIES IN THE SOCIALIST REPUBLIC OF VIETNAM

2020 ◽  
Vol 10 ◽  
pp. 73-80
Author(s):  
Aleksandr V. Fedorov ◽  
Keyword(s):  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
The Body ◽  
Socialist Republic ◽  
Legal Entity ◽  
Special Part ◽  
The Subject ◽  
Legal Entities

The article is devoted to the issues of criminal liability of legal entities in the Socialist Republic of Vietnam (SRV), established by the Criminal Code of SRV 2015, which entered into force on January 1, 2018.It is noted that not any legal entities can be prosecuted in Vietnam, but only those of them, which are recognized as commercial (corporate) legal entities. The Criminal Code of Vietnam defines a crime of a commercial legal entity as an act dangerous to society and provided for by the criminal code, committed intentionally or unintentionally by a commercial legal entity, infringing on relations protected by the criminal code. Thus, a commercial legal entity is recognized as the subject of a crime. It is pointed out that in Vietnam there is a so-called “secondary” or “selective” criminalization, when acts recognized as crimes are determined in the national law, and then from the existing list of crimes those for which legal entities may be criminalized are determined. In total, at present, such responsibility is provided for crimes provided for by 33 articles of the Special Part of the Criminal Code of Vietnam. A commercial legal entity bears criminal responsibility in cases when: the crime is committed on behalf of a commercial legal entity; the crime was committed in the interests of a commercial legal entity; the crime was committed at the direction of the body (administration) of a commercial legal entity or in accordance with its decision. Penalties applied to commercial legal entities are given, and a brief description of some of them is given.

scholarly journals Features of the Criminal Liability for Crimes in the Sphere of Entrepreneurial and Other Economic Activities

2016 ◽  
Vol 3 (4) ◽  
pp. 118-121
Author(s):  
S I Merkushina
Keyword(s):  
Supreme Court ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Economic Activities ◽  
The Supreme Court

The article analyzes the explanations contained in the resolution of the Plenum of the Supreme Court on 15/11/2016 № 48«On the practice of courts of legislation regulating particular criminal responsibility for crimes in the sphere of entrepreneurial and othereconomic activities».

The tenure of English judges

1913 ◽  
Vol 7 (2) ◽  
pp. 217-229 ◽  
Author(s):  
C. H. McIlwain
Keyword(s):  
Supreme Court ◽  
Political Science ◽  
Theory And Practice ◽  
The Political ◽  
The Supreme Court ◽  
History Of ◽  
The Subject ◽  
General Object ◽  
William Iii ◽  
Science Association

At the meeting of the Political Science Association last year, in the general discussion, on the subject of the recall, I was surprised and I must admit, a little shocked to hear our recall of judges compared to the English removal of judges on address of the houses of parliament.If we must compare unlike things, rather than place the recall beside the theory or the practice of the joint address, I should even prefer to compare it to a bill of attainder.In history, theory and practice the recall as we have it and the English removal by joint address have hardly anything in common, save the same general object.Though I may not (as I do not) believe in the recall of judges, this paper concerns itself not at all with that opinion, but only with the history and nature of the tenure of English judges, particularly as affected by the possibility of removal on address. I believe a study of that history will show that any attempt to force the address into a close resemblance to the recall, whether for the purpose of furthering or of discrediting the latter, is utterly misleading.In the history of the tenure of English judges the act of 12 and 13 William III, subsequently known as the Act of Settlement, is the greatest landmark. The history of the tenure naturally divides into two parts at the year 1711. In dealing with both parts, for the sake of brevity, I shall confine myself strictly to the judges who compose what since 1873 has been known as the supreme court of judicature.

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