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Author(s):  
A. Haddadi ◽  
F. Ravaz

Under criminal law, euthanasia can have two distinct qualifications: that of homicide in the event that the act of directly killing another person is characterized, or that of assisting a third party in the suicide. These two qualifications are applicable on the condition that the agent — the author of the act of causing death — is not the one who went through it. In fact, selfeuthanasia is nothing more than suicide.In addition to euthanasia imposed to a third party (such as in the case of Malevre, nurse from Mantes-la-Jolie, tried in 2003), the euthanasia requested and subscribed constitutes a complex legal question. Answering this question first involves specifying the position of contemporary criminal law in the face of suicide.In the event that suicide is only decriminalized, in fact, the author of the act — regardless of the outcome of his actions, who is himself the victim, cannot be prosecuted. Nor ultimately receive any condemnation.However, this lack of prosecution and conviction is by no means an endorsement of the act — suicide — by the law.Moreover, in the event that suicide is a right, it would then be necessary to agree that any candidate for this act can request assistance in the accomplishment of his death. Given these two opposing approaches, imposed on us the question of whether there is a right to die.Although the euthanasia imposed is unequivocally under ordinary criminal law, the euthanasia requested and granted is not based on any rights. To date, there is no right to approve a death request, but on the other hand, it does allow it to be respected and to some extent promotes its approach with dignity. This work will focus on two central points which are the possibility that euthanasia is a homicide under common law (I) and the attitude of French law concerning the right to death (II).


2021 ◽  
pp. 1-3
Author(s):  
Azirah Hashim

2021 ◽  
Vol 23 (130) ◽  
pp. 367-390
Author(s):  
Emetério Silva de Oliveira Neto
Keyword(s):  

O presente estudo tem por escopo analisar a adoção da sistemática do distinguishing nas decisões judiciais-penais, tendo por base a noção de precedente judicial e as implicações da influência do modelo de Common Law nas estruturas dogmáticas do direito processual brasileiro. Parte-se da premissa de que a fundamentação da decisão judicial constitui garantia do cidadão delineada na Constituição federal de 1988, melhor explicitada na ordem infraconstitucional pelo Código de Processo Civil de 2015 e pela Lei nº 13.964/2019, que modificou o Código de Processo Penal, trazendo os elementos que tornam a motivação adequada. O texto demonstra que um desses elementos é a técnica do distinguishing, de capital importância nos julgamentos criminais, ressaltando, por fim, que a necessidade de celeridade nos julgamentos dos processos judiciais não permite o uso indiscriminado da Inteligência Artificial, mormente quando em questão a liberdade ambulatória do cidadão, a ser definida com base na técnica do distinguishing. 


Obiter ◽  
2021 ◽  
Vol 30 (2) ◽  
Author(s):  
Marita Carnelley ◽  
Juanita Easthorpe

There are various models for determining and allocating child support obligations post-divorce and many different principles upon which such a policy can be based. In most legal systems the parents retain the duty to support their needy children after divorce as it is primarily their obligation to ensure the adequate financial welfare of their children. This principle is applicable in both the South African and Canadian legal systems. In South Africa, in terms of both the common law and legislation, both parents must maintain their children “according to their respective means”. The awarding of a specific amount of maintenance is, however, a complex process calculated by the courts on a case-by-case basis mainly by considering two issues: the needs of the children and the parents’ ability to maintain their children within the circumstances and means of each of the parents. Although both aspects are important in a maintenance enquiry, the focus of this note is on the interpretation of the calculation of the contribution of each of the parents, especially the non-custodial parent. The interpretation of the concept “means” obviously has important consequences for the parties: the broader the interpretation of the “means” of a parent, the higher the proportion of the contribution of that parent would be towards the support of the children. This is especially important in South Africa where a substantial proportion of those who are obligated to pay maintenance is impecunious. The Canadian law rested on similar principles until 1997 when the federal government promulgated the Federal Child Support Guidelines as an amendment to the Divorce Act. The impact of these Guidelines on the calculation of the parental share of post-divorce child support has been far-reaching. The aim of this note is firstly to examine the meaning of the term “means” within the South African legal system as set out in the common law, the various statutes and as these have been interpreted by the majority of courts over the past century. The second aim is to give a brief overview of the Canadian Guidelines and to compare their current system with the South African scenario. The rationale for choosing this jurisdiction is (i) the fact that in both jurisdictions the courts have the ultimate say over the amount of support paid; and (ii) as the Canadian position before their 1997 amendments was similar to the current South Africa system, it was envisaged that by exploring their reasons for change and evaluating their current system, some useful insights might be gained in solving some problems experienced in the South African maintenance system. The note will conclude with some suggestions for reform in South Africa in light of the Canadian experience. 


2021 ◽  
pp. 0067205X2110398
Author(s):  
Joshua Sheppard

The High Court has often said that the common law must conform to the Constitution. The High Court has not completely explained why this is so. This requirement is not explicitly mentioned anywhere in the Constitution itself. A number of scholars have suggested possible answers. One is that the Constitution is the supreme law and binding on everyone. Another suggestion has been that the common law must conform because the Constitution constrains 'state action': something more than just an exercise of constitutionally conferred power. This latter explanation appears to deviate from the High Court's exposition of the common law's relationship with the Constitution in Lange v Australian Broadcasting Commission. This article suggests that the Constitution has a broader application to the common law, in that it constrains all uses of judicial power, not just those that are considered to be ‘state action’. It contends that it is implicit in s 71 of the Constitution that the power to develop the common law yields to constitutional imperatives. This theory is more descriptively consistent with the High Court's practice and observations about the relationship between the common law and the Constitution.


Obiter ◽  
2021 ◽  
Vol 30 (3) ◽  
Author(s):  
David McQuoid-Mason

The practice of “ukuthwalwa” has been described as a “mock abduction” or an “irregular proposal” aimed at achieving a customary law marriage. It has been said that ukuthwalwa may be used for a number of purposes, such as: (a) to force the father to give his consent; (b) to avoid the expense of a wedding; (c) to hasten matters if the woman is pregnant; (d) to persuade the woman of the seriousness of the suitor’s intent; and (e) to avoid payment of lobolo. At common law the courts have stated that ukuthwalwa should not be used “as a cloak for forcing unwelcome attentions on a patently unwilling girl”, and have held that abduction by way of  ukuthwalwa is unlawful. However, it has been suggested that if there is a belief by the abductor that the custom of ukuthwalwa was lawful the abduction would lack fault, and that if the parents or guardians consented to the taking it would not be abduction, because abduction is a crime against parental authority. Where the parents or guardians consent to the abduction the crime may amount to assault or rape. Some of these potential lacunae in the law seem to have been addressed by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. There has recently been public outrage about the practice of ukuthwalwa in the Eastern Cape in which girls between the ages of 12 and 15 years of age were being abducted and forced into marriages against their consent. This aspect of ukuthwalwa is a breach of the common law and the repealed section of the Sexual Offences Act (s 9 of the SexualOffences Act 23 of 1957. It is also completely contrary to the Bill of Rights (Chapter 2 of the Constitution of the Republic of South Africa Act, 1996) and the Sexual Offences Amendment Act (Chapters 2 and 3 of the Sexual Offences Amendment Act). Part of the problem may be that some rural communities think that cultural practices trump constitutional rights, whereas according to the law the reverse applies.


Obiter ◽  
2021 ◽  
Vol 30 (3) ◽  
Author(s):  
Magda Slabbert

If I am not a slave, nobody else owns me and I therefore must own myself. This is but philosophical speculation and not the law. According to the legal view, not only does no one own me or my body parts, but neither do I. Legal conceptions of “property” donot extend to self-ownership. A vacuum in law concerning the ownership of body parts exists and the only responses to questions concerning this type of ownership remain philosophical and obiter dicta in reported cases. This article explores property rights in human bodies and body parts in order to establish the position in law of excised human organs removed for the use in transplantation. It is necessary to highlight the historical progression in determining property rights in human body parts, but it should be borne in mind that the majority of laws and court decisions took place in an era when organ transplants were still in an experimental phase. For the sake of brevity foreign legislation and court judgments in only two common law countries will be scrutinised and compared to the current position in South Africa. The reasons why ownership in human organs are important will also be indicated. 


Obiter ◽  
2021 ◽  
Vol 39 (3) ◽  
Author(s):  
Shannon Hoctor

Some aspects of substantive criminal law generate more controversy than others. One of the features of the common-law crime of “housebreaking with the intent to commit a crime” is the possible difficulty of proving what “further intent” the accused harboured upon breaking into premises: what crime did the accused intend to commit within? To assist the prosecutor in this regard, the legislature intervened by extending the ambit of the common-law crime to include not just housebreaking where the “further intent” of the accused could be properly identified, but also housebreaking where the “further intent” of the accused could not be identified. Thus, in terms of the Criminal Procedure Act (51 of 1977), a charge of housebreaking with intent to commit a crime “to the prosecutor unknown” (s 95(12)), and a conviction in these terms (s 262) was established. These provisions have proved very controversial, with De Wet commenting that in providing this statutory extension to the common-law crime, the legislature miraculously created a representation of something that is conceptually impossible.The common purpose doctrine also provides invaluable assistance to the State in situations where more than one actor has been involved in the commission of a crime, and where it is extremely difficult to ascertain which actor was responsible for which act. Typically, such crimes arise out of mob violence. A strict application of the rules of causation in such circumstances often makes proof of individual perpetrator liability extremely hard to establish. The consequence of the difficulty in establishing a causal link between the actor’s conduct and the harmful result may be lesser liability or even no liability for the harm. The common purpose doctrine (defined below) however provides that where the actors share a common purpose to commit a crime, and act to that end, the conduct of each actor is imputed to each of the other actors. Thus the difficulty with proof of causation is entirely circumvented. But at what cost? Despite a Constitutional Court judgment to the contrary, Burchell has consistently argued that the common purpose doctrine “is a contradiction of the fundamental rule that the prosecution must prove the elements of liability beyond reasonable doubt and, therefore, an infringement of the presumption of innocence”.In the case of S v Leshilo (2017 JDR 1788 (GP)), both these controversial aspects – the statutory extension to the housebreaking crime, and the common purpose doctrine – are drawn together, making a consideration of the judgment in this case both instructive and worthy of closer analysis.  


2021 ◽  
Author(s):  
Jie Huang

The Australian common law does not require reciprocity for recognizing and enforcing foreign judgments. Therefore, although Chinese courts have never recognized and enforced an Australian monetary judgment, Australian courts have recognized and enforced Chinese judgments. Thus far, there have been two Chinese judgments recognized and enforced in Australia (both in the State of Victoria). In both cases, the Australian judges considered whether the Chinese courts had international jurisdiction based on the defendants’ citizenship/nationality. This article seeks to discuss the two cases.


Author(s):  
Oleksandr Yu. Amelin ◽  
Tamara M. Kyrychenko ◽  
Borys D. Leonov ◽  
Volodymyr V. Shablystyi ◽  
Nataliia V. Chenshova

The fundamental basis of legal systems based on common law is that people have free will and are accountable for their actions. Particularly difficult and controversial issues of criminal liability arise when one person instigates another to commit suicide, and, accordingly, issues of free will, causality, and responsibility become increasingly important. The reasons for committing suicide are primarily socio-economic in nature. A certain proportion of suicides are those that occur due to the negative impact of third parties on the victims. In this case, the investigative action must establish that the perpetrator displayed intent in his or her actions in such a way as to expose the victim to a high risk of serious psychological harm. In the era of digital transformation, special attention must be paid to the relationship of the criminal with the victim, carefully studying the social networks of both, taking into account the fact that a typical participant in Internet communication leading to suicide is emotionally unstable, subordinate, insecure, secretive, unassertive teenager, and this category is represented to a greater extent by a female audience. The scalability of digital interventions allows to penetrate populations beyond the reach of conventional mental health care. Thus, there is a need for the use of digital Internet interventions, including to assist in the work of law enforcement agencies in the detection of Internet communities that instigate and incline people to commit suicide. It is concluded that the era of digital transformations is constantly evolving, social networks are becoming more accessible for both criminals and their victims, as a result of which the corresponding requirements for the investigation and subsequent prosecution for incitement to suicide become more complicated. The scientific proposals of legal scholars presented in the study are aimed at solving the corresponding problems


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