Comparative method in criminal law as a tool of legal research and education

Comparative criminal law is the activity of comparing legal systems with each other, both between nations, states, and even religions, to find and signal differences and similarities with the members of the explanation and researching how the law functions and how its juridical solution is in practice and any non-legal factors that affect it. So a scientific comparison of law requires a comparison of legal history. The benefits of Comparative Law are: Useful for national, regional, and international unification and codification. For legal harmonization, between international conventions and national regulations. Legal reform, can deepen knowledge of national law and be able to objectively see the advantages and disadvantages of national law. To determine the general principles of law (especially for judges of international courts). It is important to determine the general principles of law which are an important source of the international public. The object of legal comparison is the legal system (system or field) in a country that has more than one legal system (e.g. civil law can be compared with written civil law) or the fields of law in a country that has one legal system (e.g. causality requirements in criminal and civil law, representative construction in civil and criminal law or foreign legal systems (fields) compared with joint legal systems (fields) (e.g. law of contract compared to the law of the agreement)

Croatia is relatively small country with population of approx. 4 million inhabitants. It is a European country, and is part of the Central and Eastern Europe. The area of the state is 56, 594 km2 by land, and 31,479 km2 by sea (interior waters and territorial sea), in total 88,073 km2 which makes Croatia one of the medium-sized European countries. It was a part of Yugoslavia till 1991. After its inde- pendence, Croatia shifted from socialist regime to democracy, and the law reform followed. Croatia has enacted new Constitution in compliance with all international standards, abolishing the death penalty. In the beginning of its independence, it has taken existing legislature of Yugoslavia, but later it has been working on its own legislature and reform of the judiciary and (criminal) law system. So, in past few decades it has gone through a significant law reform, among other law areas criminal law was also significantly affected and influenced by the state law reform. Many new laws were enacted regulating area of criminal law, as well as the laws regulating some issues relevant for criminal law (both substantive or procedural, and penitentiary as well). The main laws in field of criminal law (in broader sense) are Penal code (subsequently: PC) for Substantive criminal law, Criminal Procedure Act (subsequently: CPA) for Criminal procedural law and Penitentiary Act (subsequently: PA) for Penitentiary law. In this paper (report) will be presented some key information about Croatia, Croatia’s judiciary system and criminal law system and reform.

The adat criminal law is considered one of the sources of law in the Indonesian criminal law system. Its applicability is based on the provisions of Energy Law No. 1 of 1951, Article 5 paragraph (3) sub b. Such provision determines the applicability criteria of the adat criminal law, which has a limited nature, by observing the description of criminal acts in the Criminal Code. One of the adat people who still implement the adat criminal law is the one who resides in North Lombok; they use awig-awig as the primary institution to manage the relationship in society, the relationship between humans and the universe and the relationship between human and their creator. This study uses normative legal research with normative and sociological juridical approaches. The normative legal research used is abstract legal research, legal principles research, concrete legal research, and systematic legal research. Sociological juridical research is conducted towards the permitted values and principles and the applicability of the criminal adat law among the adat people in North Lombok. In conclusion, this study shows that the revitalization of awig-awig among the adat people in North Lombok is conducted because its implementation is seen and felt as more fulfilling for the adat people to achieve the sense of justice and legal certainty in reaction to the occurring people’s development, on that sense, the people’s development may effectively apply the awig-awig. The implementation of adat sanctions is deemed and perceived to restore cosmic balance, remove dirty deeds or clean up the disturbance to the environment of adat peoples due to the adat violation. Meanwhile, other types of criminal sanctions are considered to have no magical religious value.

This book fills a major gap in the scholarly literature concerning international criminal law, comparative criminal law, and human rights law. The principle of legality (non-retroactivity of crimes and punishments and related doctrines) is fundamental to criminal law and human rights law. Yet this was the first book-length study of the status of legality in international law - in international criminal law, international human rights law, and international humanitarian law. This was also the first book to survey legality/non-retroactivity in all national constitutions, developing the patterns of implementation of legality in the various legal systems such as Common Law, Civil Law, Islamic Law, and Asian Law around the world. This is a necessary book for any scholar, practitioner, and library in the area of international, criminal, comparative, human rights, or international humanitarian law.

The first section of this article describes criminal law's parochialism. The second section discusses the histories and functions of comparative criminal law. The third section discusses selected topics in comparative law, such as punishment theory, victims, jurisdiction, the principle of legality, an analysis of criminal liability, and general principles of criminal liability. The last section discusses comparative criminal law in context. The discussion notes that comparative criminal law is best seen as one way to gain critical distance from a given system of criminal law by placing it within a larger context.

Legal development is a necessity for the Indonesian people. Having its product law becomes the identity of a free nation. The original Indonesian law will later become a national law that is free from colonial legal products. This study aims to describe the terminology of legal development and reform and the urgency of developing a national criminal law in Indonesia. The results of this study indicate that legal development is synonymous with legal reform. Legal development is an inseparable part of national development. Integrating and synergizing with other fields such as politics, economy, society, environment, and security in legal development is necessary. Legal development must be sustainable and well planned. Legal development can also mean legal reform which includes updating existing or outdated legal provisions and creating new laws needed to meet the demands of developments that occur in society. The implementation of legal development is not only limited to statutory regulations but also leads to a legal system such as the development of legal materials, institutional development and law enforcement, development of legal services, and development of public legal awareness. These elements influence each other, and the law must be built simultaneously, synchronously, and integrated. The development of criminal law for the Indonesian nation is very urgent because as an independent nation it does not yet have its criminal law system. The current criminal law system is the Dutch colonial legacy legal system

The ideas presented here are based on the way in which scientific research in the field of law (criminal law in particular) evolves. The anticipation of natural questions is followed by recommendations that are not intended to be decisive in the choice of topic and the orientation of the research, but rather to support the integrity and coherence of the approach. Even if the subject is oriented towards clarifying the structure of a doctoral thesis, the recommendations are applicable to any type of research in the field of legal sciences, an article or a study. The doctoral thesis must bring an element of novelty to the research of the field studied, to clarify an ambiguity that may arise from the interpretation of the law, from the application of the law, from the evaluation of the efficiency or constitutionality of an existing regulation or from the evaluation of the need for a new regulation. The originality of a thesis must concern both its basic idea (what the paper seeks to demonstrate) and the content (what are the conclusions reached regarding the purpose pursued within the analysis of the institution/notion of criminal law studied). The purpose of the paper, the research objective will be correlated with the questions that the thesis seeks to answer and the hypotheses that are to be verified. Each part of the thesis will aim to analyze, from the perspective of criminal law, criminal procedural law and, subsidiary, criminology, the regulation of the most important components of the institution/notion of criminal law studied and their effects on social relations: for example, to examine the relationship between certain legal relations of criminal law, to evaluate the effectiveness of an institution/norm in relation to the purpose pursued by the legislator, to investigate the elements of conventionality or constitutionality of a norm, to analyze the changes in the conditions of existence of an institution/norm studied etc. Neither the validity of choosing the hypothesis verified by the work nor the scientific character of the work depend on the positive or negative conclusion reached as a result of the study. However, the paper should not stop at solutions that could not be anticipated as being applicable in national law, either for reasons related to the incompatibility with the criminal system as a whole, or because they would impose logistical and personnel costs that are not compatible with what we imagine could be invested in justice/the criminal law system.

The judicial power in criminal law enforcement within the Criminal Justice System, including the execution of criminal sanctions sub-system, should be independent and self-supporting. In Indonesia, the execution of criminal sanctions sub-system is currently under the executive power that enables the practice of execution of sanctions being obstructed by many factors. In relation to that, this study explains the urgency of revision for legal structure of criminal sanctions execution and legal structure reformation for criminal enforcement in Indonesia. It employs a qualitative approach using the doctrinal research within the post-positivism paradigm. This study found that it is considered urgent or essential to reform the criminal legal structure of the national law based on philosophical, sociological, and juridical aspects abiding to Pancasila. The criminal law system covers the criminal law enforcement system which includes material criminal law sub-system, formal criminal law sub-system, and execution of criminal sanctions sub-system. Essentially, the execution of criminal sanctions sub-system acts as a sub-system of punishment. The structural reform of the systemic law in execution of criminal sanctions sub-system should be under the auspices of judicial authority, which is the Supreme Court. Therefore, this study concludes that the system should become linear, independent, synergized, and integrated with the investigative agents, prosecutors, and courts in a single criminal law system. In this way, there will be supervision and coordination in the context of the integrality of punishment, which falls under one protection of an integrated criminal law enforcement system.

This research discusses the comparison of the criminal law system and the characteristics of the legal family in Indonesia after the enactment of the new kuhp. This research uses a normative juridical approach method, namely by examining / analyzing secondary data in the form of legal materials, especially primary legal materials and secondary legal materials. The specification in this research is analytical descriptive research. In studying comparative law there are two benefits, namely Theoretical Benefits Can support the development of legal science in general and criminal law in particular, covering two things, namely, closely related to research in the field of legal philosophy and legal history; closely related to the understanding and development of national law. And Practical benefits Provide positive input for the development and formation of law in general and criminal law in particular. The results of the research show that the criminal law system in Indonesia until now (before the enactment of the New Criminal Code) belongs to the Romano-Germanic Family of law. This can be seen from the identical characteristics between the characteristics possessed by the criminal law system in Indonesia and the characteristics of the Romano-Germanic Legal Family. After the enactment of the New Criminal Code, there is a shift in the legal family, which was originally the Romano-Germanic legal family or civil law has shifted/changed to a mixed legal family or legal mix system or civil law and religious law.

The solution of fundamental problems of criminal-law regulation should be carried out taking into account doctrinal scientific developments and the latest achievements of scientific and technological progress. In this sense, using of a system approach is expanded, which has now received significant instrumental support in the format of information technology and software. A system approach is a methodological direction of scientific knowledge of system objects by means of system engineering, which is implemented in two main areas – in the field of methodology and theory, and in the field of specific applications. The aim of the paper is a comprehensive description of using of system approach in domestic criminal law. The task is to outline the prospects of applying a system approach in domestic criminal law, taking into account the latest technologies of systems engineering. Criminal law in its essence can be understood as a system of information (knowledge) that outlines the criminal offenses’ types and criminal law measures of state reaction to them. As a systemic object, this phenomenon is characterized by several circumstances. System components of criminal law. First of all, the authors are talking about the systemic nature of a crime, according to which the system of criminal law regulation is oriented. The systems are also criminal law provisions. Their structural elements-subsystems are hypothesis, disposition and sanction The system of criminal law has its own structure. The initial elements of its structure are criminal law. This also includes atypical regulations: criminal law constructions, legal presumptions and fictions. According to the degree of generalization, legal norms and atypical normative prescriptions are united into legal institutions. The systemic structure of the studied system object is manifested in the multiplicity of relations between them. System connections of criminal law. In the system of criminal law, informational connections are realized. Functioning of criminal law system in the system environment. Through the mechanisms of rule-making, information from protected social relations is introduced into it from the outside, and through the mechanisms of law enforcement, it affects its environment. According to the system approach, a model of the crime system and the system of the Criminal Code of Ukraine is proposed, developed on the basis of IDEF0 notation

Martha Nussbaum’s Anger and Forgiveness – On retribution and forgiveness and on anger and love In this article the author discusses the book Anger and Forgiveness written by the well-known and influential American philosopher Martha Nussbaum. In the opinion of the author Anger and Forgiveness is a provocative and challenging book. In the book, Nussbaum makes a distinction between conditional and unconditional forgiveness, she relates conditional forgiveness to the logic of retribution and she disapproves retribution and, by extension, conditional forgiveness on moral grounds. Her disapproval of retribution and conditional forgiveness is related to her disapproval of (vindictive) anger, which in her opinion is intrinsic part of retribution and conditional forgiveness. According to Nussbaum, anger – transitional anger excluded – has to be replaced by unconditional love; only conduct that stems from unconditional love can be qualified as moral. Sometimes unconditional forgiveness can be seen as a form of unconditional love. Subsequently, Nussbaum applies her ideas on anger, retribution, forgiveness and love to the political domain, to which also criminal law belongs. Nussbaum pleads for a criminal law system empty of anger and retribution; in Nussbaum’s criminal law system there is only room for prevention, grace and human welfare – all stemming of unconditional love. Nussbaum’s Anger and Forgiveness offers an alternative view on concepts such as anger, retribution, forgiveness and love, concepts which are important within the context of criminal law and restorative justice. The author argues that, although the reader can certainly learn from Nussbaum’s ideas as explained in Anger and Forgiveness, the radicality of her ideas inevitably causes criticism; Nussbaum holds a very idealistic perspective that neglects the human condition. Instead of ruling out anger and retribution, the author advocates a criminal law system that is capable of canalizing anger and transforming vindictive anger into transitional anger. Furthermore, he pleads for a criminal law system that makes forgiveness possible without forcing victims to forgive. For that reason restorative justice practices need to be incorporated into the criminal law system. In sum, to a certain extent Nussbaum and Claessen share the same moral ideals, but they disagree on the path leading tot those ideals. Where Nussbaum opts for a top-down approach, Claessen opts for a bottom-up approach which respects the human condition.

Criminal law and Enlightenment. On the character of a truly enlightened criminal law system This article examines the influence of the Enlightenment on the development of our criminal law system, using a legal theory perspective. On the basis of the dialectical character of this movement and the enlightened view on mankind, it is postulated that a true enlightened criminal law system is one in which there is both room for retribution, free will and responsibility as well as for prevention, causal determinism and risk. Furthermore, it is put forth that the daily practice of the criminal law has by now moved too far into the direction of prevention, causal determinism and risk, due to the ‘scientification’ and the simultaneous demoralisation of criminal law. As a result of these developments, it is out of the question to talk of a balanced and, consequently, of a truly enlightened criminal law system. Within the framework of the ‘scientification’ of the criminal law system, additional attention is devoted to the recent topic of neuroscience.

Introduction: in modern social and legal realities, the question of the need for a systematic understanding of law in general, and criminal law in particular, is acute. The judicial practice shows that law enforcement officers often have difficulties in interpreting and implementing legal norms. In this connection, the author of the paper sets the purpose of the study: to consider criminal law as a system-based construct. Methods: the methodological framework for the research is a set of methods of scientific cognition, among which the main ones are the systematic approach, the method of deduction, induction, abstraction, analysis and comparative law. Results: the author’s position justified in the work is based on the legislation and the opinions of the competent scientific community on the question of whether the totality of sources of criminal law has a sign of consistency. Using the legal analysis of the provisions of the theory of law, the question is raised about the possibility of including in the criminal legal system such elements as the legislation on issues related to criminal law, doctrinal opinions of scientists, rules for the qualification of crimes, criminal law principles, judicial practice and others. A semantic distinction is made between the concepts of the criminal legal system and the system of criminal law. The author’s definition of the category of a system-forming feature of criminal law, as well as the concept of a criminal legal system, is given. The conclusion about the non-identity of these concepts is substantiated. Conclusions: as a result of the study, it is established that criminal law has signs of consistency. Criminal law as a branch of law contains various elements, including those related to unwritten law. Among them, it is possible to distinguish socio-philosophical categories, such as religious norms, norms of morality and decency, as well as the rules formulated in the criminal-legal sphere by theoretical scientists and law enforcement officers. In particular, they include the rules for the qualification of crimes, the general principles of criminal law, the doctrine of the composition of the crime and others.

Medical negligence is one of the most complex issues in Indonesia's criminal law system and healthcare services. This problem arises when medical actions do not meet professional standards, resulting in harm, serious injury, or patient death. This research aims to analyze criminal law regulations regarding doctors' liability in cases of medical negligence, identify juridical and normative constraints in proving it, and offer directions for legal reform to achieve a balance between legal protection for patients and legal certainty for medical personnel. This research uses a normative juridical method with statutory, conceptual, and case approaches. The research results show that the criminal liability of doctors has been regulated in the old Criminal Code (Articles 359 and 360), the new Criminal Code (Article 474 of Law Number 1 of 2023), and Law Number 17 of 2023 on Health. However, there is no lex specialis that clearly distinguishes between professional negligence and medical malpractice, resulting in overlaps between ethical, disciplinary, and criminal violations. The main obstacles in proving the element of fault (culpa) lie in the difficulty of determining the causal relationship between medical actions and their consequences, weak medical record documentation, and lack of synchronization between professional ethical mechanisms and criminal law processes. Therefore, legal reform is needed to clarify the boundaries of criminal liability for medical personnel through the implementation of alternative dispute resolution (ADR), restorative justice, and professional liability insurance systems. Comprehensive legal reform is expected to create a fair, balanced health law system that provides legal certainty for all parties.

In these thirty years, China's criminal law system has experienced groundbreaking change and made constant progress toward realizing criminal justice. Modern criminal law systems include substantive criminal law, criminal procedure law, and other relevant elements of the legal system. Substantive criminal law contains regulations on the definition of crime, criminal liability, and criminal sanctions; it plays an essential role in the legal system. When compared to other areas of law, substantive criminal law has two distinctive characteristics. First, the spectrum of the social relationships regulated by substantive criminal law is the most extensive of any category of law. Second, the force of substantive criminal law is the most powerful of any legal category; substantive criminal law ensures the effective implementation of every other law and is the tool of last resort for protecting the government and the people from illegal activities. Keywords: China; criminal justice; criminal law; criminal liability; legal system; regulations; sanctions