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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.  


Author(s):  
Inna Kovalenko

The article is sanctified to the questions of civil liability on the legislation of Ukraine. Taking these theoretical positions for basis, it is possible to assert that the normative founding of legal responsibility envisages the presence of legal norms, that determine possible and necessary behavior of the subject of legal relationships, embargo on certain behavior, and system of approvals and legal binding overs that determine the process of realization of responsibility. It is marked that traditionally a range of problems of responsibility was of interest such fields of law, as civil, administrative, ecological, domestic. Summarizing the above-mentioned in the article, it is possible to establish, that legal responsibility, including civil legal in whatever form she came forward always is direct influence on an offender. The substantial line of responsibility - it so to say perceptible bears by the face of negative consequences of offence in form privations of the personal, organizational or property order, regardless of what her measures will be realized: imprisonment, compensation of harm or something other. It stipulates the orientation of responsibility actually on the face of offender, stipulates penalty, punitive character of legal responsibility keywords: legal responsibility, offence, guilt, founding, inflicted harm, socially dangerous behavior. Thus, it costs to consider the composition of civil offence, that includes for itself the presence of the inflicted harm, unlegality of behavior of malefactor, causal connection between behavior of person and harmful result, guilt of malefactor the condition of civil responsibility. Thus, it costs consider that illegal there can be actions that violate the norms of legislation and equitable rights of citizens, and illegal - only those actions that violate the norm of law. Keywords: legal responsibility, offence, guilt, founding, inflicted harm, socially dangerous behavior.


2020 ◽  
Vol 7 (2) ◽  
pp. 183-213
Author(s):  
Kamal Muhammad Abubakir ◽  
Karim Taha Tahir ◽  
Shakhawan Khidr Rasool

crime usually happens in a negative way, that is to prevent an act that is bidding legally, punishable by his/her legacy, or legally binding on it, another one doing positively is the crime takes place in a positive way, that is, by committing an act prohibited by the law and criminalized by the law, especially if it results in an act or omission as a harmful result, and whether the harmful result financial or misconduct was a pure legal violation. The crime of refraining may be preceded by positive behaviors which time its completeness and magnitudes are confirmed.The elements that make the crime are available in the crime of abstinence, like other crimes. The material element is indicated from the proposition that each crime has a result and the causal relationship between the result and the conduct. Or through the law’s consideration of that behavior alone without taking care at the result, depending on the legal concept of the result, through which the result is aggression against an interest saved by the law.The moral element of the abstaining crime is got when there is a condition of discrimination and freedom of choice for the wrongdoer, so the criminal act is issued by someone with a criminal ability.The element of compulsion in the crime is achieved by abstaining when there is a legal obligation on the individual’s responsibility. His\her failure to implement what he\she orders leads to the arrangement of responsibility over the wrongdoer, on the basis of one or more of the base of compulsion, starting with the Penal Code and then the laws that supplement it and after that contract and the conduct of the perpetrator and other laws and rules Public and custom, responsibility and the idea of the advocator, and the exclusive responsibility to protect interests.In Islamic statue include more ways to rule on the crime of abstaining, by considering the abstainer as a cause of the crime, or as a participant therein, or as being incompetent to do what he must himself\herself or assign to him\her from the accomplishment appoint on him\her, and the abstainer can also be judged based on the evidence from the texts of the BOOK and The SUNNAH is straightforward, and the decision of the wrongdoer can be withdraw by measuring it with similar origins and patterns.The criminal victuals have expanded in Islamic jurisprudence and the penal code for the crime of continence, and have determined the appropriate penalties for it according to the resulting damages and aggressions affecting the individual and society.


2020 ◽  
Vol 5 (3) ◽  
Author(s):  
Morné Malan

It is commonly accepted that God is loving, honest, and would not purposefully deceive us to secure a harmful result or any result for that matter. 1 Kings 22:20, 22 and Jeremiah 20:7, 10 seem to represent texts that would suggest otherwise. The first is a text wherein a prophet (Michaiah ben Imlah) states to his king that God has facilitated the deception of four hundred of his other prophets, so that he (the king) may be enticed (or deceived) into his death. The second presents us with a text in which a prophet (Jeremiah) accuses God of enticing (or deceiving) him into the vocation of prophet. Finally, another text which seems to be related to these two is Judges 16:5, whilst this text would appear to have little to do with the others at first glance, after discussing the various connections between all three, a relationship between them will become more plausible. In this paper a literary (and descriptive) rather than a theological (normative) approach to the texts is proposed. It will address such matters as the juxtaposition of the words יכל and פתה as well as similarities in content both narratologically and formally. In doing so, it is theorized that a greater understanding of the specific terminology will be gained. Having discerned the meaning of the terms used, it is hoped that it will provide us more insights into what is happening, and the implications thereof within each text as a literary unit within a greater whole will be gained.


2019 ◽  
Vol 14 (3) ◽  
pp. 120-126
Author(s):  
D. V. Sedov ◽  
A. I. Sirokhin

The study of the features of compensation for harm caused by a high-risk object is important both from theoretical and practical points of view. The article attempts to justify the possibility for a court to use expert techniques in determining the proportions of compensation for property damage caused by a traffic accident resulting from inadequacy of road conditions to safety requirements. The subjective basis for imposing liability on a driver for the damage caused by the accident is the high-risk object owner’s conscious choice to carry out activities entailing an accidental harmful result. When considering the cases of this category, the court may face the problem of determining the proportions of compensation for the damage that has arisen from the inadequacy of the driving to the requirements of traffic regulations and from negligence in the performance of duties by the road services. In this case, it is proposed to determine the proportions of damages from the standpoint of rationale for the extent of the driver’s technical ability to prevent the accident.


2012 ◽  
Vol 178-181 ◽  
pp. 969-972
Author(s):  
Huai Feng Tong ◽  
Hong Fang Li

The environmental effects of the excavation works, which including retaining structures, pile construction, reducing the groundwater level, excavations on the surrounding environment, and performance in many ways. Reducing the underground water level can cause harmful result: the foundation settlement surrounding buildings and nearby underground pipelines. In addition, a large number of extracted groundwater is often discharged directly to the Sewage pipe network is a huge waste of water resources in cities. In this paper, the countermeasures are discussed based on the analysis of the problem.


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