Administration Of Criminal Law Research Articles

범행현장에서의 특별사법경찰관의 절차상 의무와 영상촬영의 적법성에 대한 검토

Unlike ordinary judicial police officers, special judicial police officers have the dual status of being enforcement officers for administrative criminal law violations and special judicial police officers for criminal proceedings, and it is a peculiarity that whether an investigation falls under administrative or criminal proceedings depends on the specific case at the time of initiation of the investigation, and the applicable law at each stage. Therefore, the applicable law and procedural obligations may vary depending on the nature of each specific act, and the special investigative police officer should fully consider this when making a judgment on the admissibility of evidence collected by the special investigative police officer. In addition, our precedents have recognized the legality of video recording by investigative agencies as a method of evidence collection at the scene of a crime, emphasizing that it is a substantial method of recording in a public place, and [the subject judgment] ruled to the same effect. In the reality that there is a growing need to regulate the verification behavior of investigative agencies according to the new compromise theory beyond the conflict between arbitrary and compulsory investigation theories, the point of precedent is extremely appropriate.

영국 형법의 성문화가 이루어지지 않은 이유에 대한 고찰

Britain was the first country in the world to develop the rule of law, starting with the Magna Carta, and it has long used its maritime power to influence many countries around the world, and countries that were colonised by Britain, such as India and Australia, still retain the culture, institutions, etc. of the colonial era. This influence is not limited to culture and institutions, but is even more pronounced in the realm of law. The British did not simply use the ideology of the rule of law in their mainland politics and institutions, but also used it as a tool for governance in their colonies, either in the name of promoting modernisation in the colonies, or in the direction of the colonies themselves using the rule of law to develop. In the case of India and Australia, two of Britain's major colonies, they went beyond the British common law system to enact modern laws through the process of codification, which is considered a symbol of modernisation. In the case of India, the British saw it as a bridgehead to Asia and, given its importance, actively used the rule of law as a tool to govern India, while in Australia, the rule of law was further developed. Civil law was perceived to be the domain of each country, so there was little need for codification, but criminal law was used as an efficient means of imperial power, so codification proceeded more quickly than civil law. In contrast to this trend in the colonies, however, the common law system in England has remained essentially uncodified to the present day. This behaviour seems quite unusual for a country that was one of the first to develop the rule of law. There were many people in England, such as Jeremy Bentham, who believed that codification was necessary for the development and efficient administration of criminal law. However, due to the fact that the common law system was already deeply entrenched in England and the lawyers did not want to change it, the political situation at the time when the opinions of the lawyers could not be ignored due to the majority of lawyers in Parliament, and the sense of superiority that England could not have the same form of law as the colonies as a country ruling over the colonies, codification in the essential sense did not proceed. The criminal law, which was perceived as a universal law at the time, is now in a situation where crimes have diversified due to advances in technology and require active responses based on in-depth discussions, so it seems best to actively promote codification even now to proactively respond to the diversification of crimes.

행정형법의 실체법적 문제점에 관한 소고

The overuse and abuse of criminal law in what is called the Risk Society is an unfortunate trend. Over the past 40 years, administrative criminal law has expanded significantly in size and scope, encompassing the prosecution and judgment of violations of administrative law such as financial market law, tax law, building law, fair trade law, and environmental law. It is estimated that nearly 1,000 statutes contain criminal penalties, with approximately 12,500 criminal code provisions in those statutes. A more significant problem is that many of these regulations, motivated by the aim of controlling risk rather than enhancing social justice, are often too vague or obscure. This makes it challenging to punish individuals who violate criminal offences without criminal intent or even knowledge that these offenses exist.
 The Serious Accidents Punishment Act is a typical example of administrative criminal law containing numerous ambiguities, likely leading to considerable confusion during enforcement. This confusion results in many gray areas, sparking widespread debate throughout the business community. The new law, implemented on January 27, 2022, aims to penalize the owners and management of companies with 50 or more workers for failing to fulfill their duties to prevent serious accidents.
 This article examines the characteristics of administrative criminal laws and analyzes the problems associated with them, such as challenging the principle of clarity and the culpability principle required under the penal code. Moreover, it suggests that Congress should amend or repeal redundant or superfluous administrative criminal laws to avoid overcriminalization and excessive punishment. This would eliminate vague, overly broad criminal offenses, preventing arbitrary application of criminal statutes. Regarding the Serious Accidents Punishment Act, urgent action is needed to abolish or at least amend the law to clarify the obligations and offences for preventing practical serious accidents.

Correlation of the principles of criminal law in the conditions of the introduction of martial law

The purpose of the research was to consider the essence of the principles of criminal, administrative law and the peculiarities of their application in conditions of war, considering the case of Ukraine invaded by the Russian Federation. It has been substantiated that the main idea of the existence of the principles of administrative criminal law consists in their systematic, balanced and comprehensive implementation in relation to the subjects of criminal and administrative legal relations. The mentioned principles are used as a support for the elaboration and application of the law, both in peacetime and in wartime. The methodological basis of the research was presented as comparative-legal and systematic analysis, formal-legal method, method of interpretation, hermeneutic method, as well as methods of analysis and synthesis. A conclusion has been reached on the necessity of observing human rights norms in the criminal prosecution of persons who have committed crimes against humanity and have been involved in such crimes. Consequently, the civilized world must comply with international standards and ensure security through legal and legitimate means.

FACTOR ANALYSIS ENFORCEMENT LAW AGAINST CRIMINAL ACTS OF ABUSE PERFORMED BY STUDENTS

The purpose of this study is to investigate the application of criminal law in response to acts of mistreatment done by students in Parepare City, as well as the factors that influence the application of criminal law in response to criminal acts of mistreatment committed by students in Parepare City. This study was carried out with the help of empirical research methodologies, including primary and secondary data, as well as data collection methods including interviews, observations, and analyses of published literature. After all of the preliminary and secondary data have been collected, they are then subjected to a qualitative analysis, after which they are characterized descriptively and organized systematically. According to the findings of the research, (1) the enforcement of criminal law in Parepare City against criminal actions of persecution conducted by students is not operating at an optimal level. Because of this, the administration of criminal law is conducted using a restorative justice approach at all stages of the process, including investigation, prosecution, and examination in court; (2) The legal and statutory considerations, law enforcement apparatus factors, and community factors are the three categories of elements that have an impact on how the criminal law is enforced in Parepare City in relation to the crime of persecution committed by students.

Relevansi Sanksi Pidana dalam Penegakan Hukum Protokol Kesehatan pada Masa Pandemi Covid-19

There is a void in norms related to regulations governing violations of the COVID-19 health protocol as a crime, so it is appropriate to use criminal sanctions because this is an issue that must be clarified. The purposes of this study are to analyze legal arrangements for law enforcement of health protocols during the Covid-19 pandemic and regarding criminal sanctions in law enforcement of health protocols during the Covid-19 pandemic. This study uses normative legal research, using a statutory approach, a historical approach, and a conceptual approach. The sources of legal materials used by the author are primary and secondary legal materials using library techniques. The analysis technique was carried out qualitatively and presented in descriptive form. The findings reveal that the regulation of violations of the COVId-19 health protocol can be classified as an administrative crime based on administrative criminal law terminology, but in principle the legality of violating the COVID-19 health protocol does not have a clear legal basis because its enforcement is still using Article 212, 216, and 218 of the Criminal Code, Article 93 of the UU Law and Article 14 of the Infectious Disease Outbreak Law. In addition to this, the criminal sanctions contained in the legal rules which are considered to cover law enforcement for violations of the COVID-19 health protocol do not fully meet the elements of the ideal sentencing goal.

Study on the legislative Mode of Environmental Criminal Law

At present, environmental crimes are becoming more and more serious in various countries. How to effectively combat environmental crimes has become a difficult problem facing all countries. Germany legislates through the criminal code model, Britain and the United States legislates through the administrative criminal law model, and Japan adopts the comprehensive legislation model to regulate environmental crimes. Each country is based on its own national conditions and laws and regulations to establish a suitable mode of environmental criminal law legislation. However, in the present severe state of environmental crimes, it is suitable to adopt the model of unified criminal code to make special legislation and centralized legislation on environmental crimes. Establishing this kind of legislation pattern is the basic requirement to promote the status of environmental crime in the criminal law, which is beneficial to combating environmental crime and conforms to the environmental protection policy idea of our country.

Limitation of Indonesian Administrative Criminal Law For Pandemic Treatment Against Health Protocols Violation

Criminal Law to deal with Corona Virus Disease 2019 (Covid-19) is under the spotlight during the handling of the pandemic. Criminal Law is intended to be used when the patient's moral responsibility to declare that he has been abroad having not been fulfilled, and the government's health protocols are ignored. Meanwhile, various laws for Covid-19 pandemic treatment does not provide strict norms; on the contrary, it is sometimes using blanket offence formulation. This study explores the limits of Administrative Criminal Law in the health sector and pandemic management to impose penalties for health protocols violation. Using the normative systematic interpretation method, the study results show no difference formulation of criminal law norms in special laws, which are administrative with criminal law norms in special laws. However, the difference exists within the theoretical realm. Administrative criminal law is not aimed at free individuals and is not socially and psychologically illegal. Still, it is aimed at humans as players of particular roles required to conform with other forms of action according to their role. Unfortunately, administrative criminal law exists outside the Criminal Code, primarily aimed at freeing individuals and socially and psychologically illegal. Law enforcement practices cannot provide a gradation for these two groups of laws—conditions where the fundamental rights of citizens are threatened by the power to impose penalties. This study proposes broadening justification and excuse in the Indonesian Criminal Code, which is appropriate for the character of administrative criminal law.Keywords: Blanket Offence Formulation; Excuse; Justification AbstrakHukum Pidana untuk Penanganan Corona Virus Disease 2019 (Covid-19) menjadi sorotan selama penanganan pandemi. Hukum Pidana dimaksudkan untuk digunakan ketika tanggung jawab moral pasien untuk menyatakan bahwa ia telah di luar negeri belum terpenuhi, dan protokol kesehatan pemerintah diabaikan. Sementara itu, berbagai undang-undang penanganan pandemi Covid-19 tidak memberikan norma yang tegas; sebaliknya, kadang-kadang menggunakan rumusan blanket offence. Kajian ini menelusuri batasan Hukum Pidana Administrasi di bidang kesehatan dan manajemen pandemi untuk menjatuhkan sanksi bagi pelanggaran protokol kesehatan. Dengan menggunakan metode interpretasi sistematis normatif, hasil penelitian menunjukkan tidak ada perbedaan rumusan norma hukum pidana dalam undang-undang khusus yang bersifat administratif dengan norma hukum pidana dalam undang-undang khusus. Namun, perbedaannya ada dalam ranah teoretis. Hukum pidana administrasi tidak ditujukan untuk individu yang bebas dan tidak ilegal secara sosial dan psikologis. Namun, itu ditujukan pada manusia sebagai pemain peran tertentu yang diperlukan untuk menyesuaikan diri dengan bentuk tindakan lain sesuai dengan perannya. Sayangnya, hukum pidana administrasi ada di luar KUHP, terutama ditujukan untuk membebaskan individu dan ilegal secara sosial dan psikologis. Praktik penegakan hukum tidak dapat memberikan gradasi bagi kedua kelompok hukum ini—kondisi di mana hak-hak dasar warga negara terancam oleh kekuasaan untuk menjatuhkan hukuman. Penelitian ini mengusulkan perluasan justifikasi dan dalih dalam KUHP Indonesia, yang sesuai dengan karakter hukum pidana administrasi.Kata Kunci: Formulasi Blanket Offense; Mengizinkan; Pembenaran

Verwaltungsstrafbarkeit von Banken

According to traditional Austrian administrative criminal law, certain responsible natural persons are to be punished if legal persons violate regulations. Under the influence of Union law, however, there are provisions in Austrian administrative law that provide for the punishment of legal persons themselves. An important example of this is § 99d of the Banking Act which provides for the possibility of punishing banks. In this article, this provision is analysed in more detail, taking into account the constitutional requirements for the punishment of legal persons. In the course of this, special attention is also given to the relation between § 99d of the Banking Act and Univ.-Prof. DDr. Michael Potacs ist Professor für Öffentliches Recht unter besonderer Berücksichtigung des Wirtschaftsverwaltungsrechts am Institut für Staats- und Verwaltungsrecht der Universität Wien; e-mail: michael.potacs.@univie.ac.at Photo: Stefan Huger the administrative criminal liability of responsible natural persons which continues to exist in parallel.

Abuse of Authority: A Meaning Deconstruction

Introduction to The Problem: As part of the organization of the government duties and community services, the authority to make a decision is attributed to the government officials (inherent aan het bestuur), which has led many to become a suspect and a convict. On the other hand, it is believed that the government's policies are not subject to the law. Purpose/Objective Study: This study aims to determine to analyze abuse of authority according to a meaning deconstruction Design/Methodology/Approach: The research applied normative juridical approach as the logical consequence of sui generis of law. Findings: Each network of a structure of meaning is always presented in the form of binary opposition. One of the elements is marginalized and abandoned. Similarly, in the field of law, the term "abuse of authority," which is often connected to the damage that occurs to the state's financial condition, is seen as an absolute part of the Criminal Law. Arbitrarily, it replaces the function of the State Administrative Law. The "financial loss," which is then known as corruption, is the result of 'abuse of authority,' originated from the State Administrative Law. Through Jacques Derrida's perspective, a marginalized binary opposition is made into being. It is not to dominate others, but to share the views. The disjuncture between the state administrative law and criminal law has caused an unresolved issue of corruption. Through Paul Scholten's perspective, in essence, the criminal law has abandoned the social fact that there is a strong correlation between the deeds in the state administrative law and those in the criminal law, which is in the theoretical domain of administrative criminal law. The abandonment is against the hulprecht principle related to the implementation of the law mentioned above. The research employed a normative juridical method based on secondary data using philosophical, conceptual, and legal approaches. Originality: This article discusses specifically abuse of authority, a meaning deconstruction in terms of criminal law and state administrative law Paper Type: General Review

CRIMINAL LAW ENFORCEMENT POLICY ON MINERAL AND COAL MINING BUSINESSES

<p class="BodyAbstract">The implementation of the criminal law enforcement policy on mineral and coal mining businesses (minerba) still occurs several violations of Article 158 of the Law of the Republic of Indonesia No 4 of 2009 (minerba Law). This journal aims to find out and analyze: 1) criminal law policy in law enforcement on illegal mining businesses according to the Minerba Law, and 2) current law enforcement constraints and future improvements. The normative juridical research approach places secondary data, in the form of primary legal material (Minerba Law) as the main material. Meanwhile, primary data acts as supporting analysis, which is obtained using interview techniques. Secondary data was obtained through the study of legal literature, especially Case No. 237 / Pid. Sus / 2018 / PN Jpa. The entire dawas ta was analyzed using descriptive qualitative methods. Results: (1) Minerba Act, qualified as administrative criminal law. The criminal provisions are regulated in 8 articles with the threat of imprisonment, confinement and fines. (2) Law enforcement constraints from the Legal Substance dimension is the equalization of all mining activity permits in the form of Mining Business Permits. The legal structure perspective, demands large funding requirements. Internal Legal Culture experiences obstacles in coordination between Police investigators and PPNS. Externally, it explains that people prioritize economic value. In the future, a Rock Mining Permit is required, consistency in the application of article 158 and solid coordination between police and ESDM investigators, as well as education on environmental values.</p>

The anthropological dimension of international crimes and international criminal justice

As the chapter goes on to demonstrate, our understanding of a particular culture prior to the outbreak of hostilities or mass human rights violations serves numerous purposes which for the most part have been outside the radar of contemporary international criminal tribunals and their respective mandates. At a functional level, anthropology may tell us what the affected societies aspire to and what they think about international criminal justice, which in turn should shape – not necessarily dictate – the international community’s relevant transitional justice policies. This aside, culture paints a fairly accurate picture as regards hierarchies, membership and affiliation in clans and kinship mechanisms, which in turn helps determine complex liabilities, such as command responsibility and joint criminal enterprise JCE), among others. Moreover, anthropological observation helps us decipher the contextual meaning of concepts that verge between the social and the natural sciences, such as race, ethnicity and gender, by means of their social construction. This chapter paves the way for the realisation of the crucial function of anthropology in the investigation of mass crimes and the need for specialist research alongside legal developments.

Reimagining a Prosecutor’s Role in Sentencing

Research Article| May 11 2020 Reimagining a Prosecutor’s Role in Sentencing Lauren-Brooke Eisen, Lauren-Brooke Eisen Director, Justice Program at the Brennan Center for Justice, NYU School of Law Search for other works by this author on: This Site PubMed Google Scholar Courtney M. Oliva Courtney M. Oliva Executive Director, Center on the Administration of Criminal Law, NYU School of Law Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2020) 32 (4): 195–201. https://doi.org/10.1525/fsr.2020.32.4.195 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Twitter LinkedIn Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation Lauren-Brooke Eisen, Courtney M. Oliva; Reimagining a Prosecutor’s Role in Sentencing. Federal Sentencing Reporter 11 May 2020; 32 (4): 195–201. doi: https://doi.org/10.1525/fsr.2020.32.4.195 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentFederal Sentencing Reporter Search This content is only available via PDF. © 2020 Vera Institute of Justice. All rights reserved.2020 Article PDF first page preview Close Modal You do not currently have access to this content.

The Indian Panchayat, Access to Knowledge and Criminal Prosecutions in Colonial Bombay, 1827–61

Throughout the mofussil of the Bombay Presidency British judges and magistrates called upon panchayats, that is, caste or village councils, to help them administer justice. By the mid-nineteenth century, panchayats were being deployed by British justices not only to offer their advice to judges attempting to decide a case, but much more frequently to investigate crimes, including murder, assault, robbery, arson, forgery, rape, and property disputes. Moreover, the active participation of the panchayat in the administration of criminal law varied as much in form as in function. In different scenarios, the panchayat functioned as a coroner's court, a criminal investigation team, and a general witnessing agent for the courts. With very few exceptions, they almost always appear in a supporting role on the prosecution side of any case offering their opinions on the crime in question in written form. Judges, for their part, appear to have relied quite heavily upon these recommendations and there are very few instances in which the panchayat's opinions were either ignored or rejected. There thus developed a hybrid system of justice whereby judges and magistrates adapted, transformed, and incorporated the expertise and knowledge of the ‘customary’ panchayat to suit the needs of British governance and legal administration.

행정형법에 대한 두 가지 재해석

행정범은 행정법규를 위반하였기 때문에 성립하는 범죄를 의미한다. 이는 윤리적•도덕적 규범 위반을 전제로 하는 자연범과 구별된다. 행정범에 대해서도 원칙적으로 형사처벌이 과해진다는 점에는 별다른 의문이 없다. 다만 행정범이 지닌 특수성으로 인해 일반적인 형법이 아니라 특수한 형태의 형법, 이른바 행정형법이 적용될 여지가 있는 것은 아닌지 논의가 시작된다. 요컨대 행정형법 이론은 행정법규 위반 행위에 대하여 통상의 형법과 다른 규율을 하려는 시도라 하겠다.BR 물론 행정형법 이론을 인정하는 입장에서도 모든 행정범에 대하여 기존 형법의 적용이 전적으로 배제된다고 보지는 않는다. 다만 행정목적 달성을 위해 필요한 경우, 명문의 규정이 없어도 해석을 통해 형벌의 성립범위를 확대할 수 있는지가 주로 논의되고 있다. 대표적인 것이 법률 규정이 없어도 해석을 통해 과실범의 성립을 인정할 수 있느냐의 문제이다. 판례는 일부 이를 인정하고 있지만, 죄형법정주의의 기본 원칙에 비추어 볼 때 이러한 입장은 문제가 있다고 할 수밖에 없다. 현실적인 어려움을 간과할 수는 없겠으나 행정법규 영역에서 형법 규정의 적용을 일부라도 배제하려면 법률의 형태를 갖추어야 할 것이다.BR 오히려 행정형법 이론은 사인인 피고인의 책임을 경감시키는 이론으로 재해석될 수 있다. 예를 들어 형법 제16조 규정인 법률의 착오 규정을 해석함에 있어 행정형법 이론을 끌어올 수 있다. 현존하는 다수의 행정법규는 일반인이 이해하기 어려운 전문적이고 불명확한 내용들로 구성되어 있다. 따라서 적어도 행정형법이 적용될 수 있는 영역에서는 형법 제16조의 성립범위를 기존 판례의 해석론보다 확장시키는 것이 바람직하다고 볼 수 있을 것이다.

행정형법의 장소적 적용범위 : 대법원 2018. 2. 8. 선고 2014도10051 판결

지구촌의 글로벌화로 인하여 대한민국 국민의 해외에서의 행위가 우리나라 법률의 적용대상인지 문제되는 사례가 늘어나고 있다. 대상판례는 대한민국 국민이 해외에서 우리나라 행정형법을 위반한 경우 그 처벌여부에 대한 판결이다.BR 행정형법은 행정법으로서의 특징도 갖지만 형벌을 규정하고 있다는 점에서 형법규범에 속한다. 그런데 행정법은 국가의 통치권이 미치는 영역 내에서의 적용을 전제로 하기 때문에 대부분 국내에서만 적용되지만, 행정형법은 형법규범이므로 원칙적으로 형법총칙의 적용을 받게 되고, 형법 제3조에서 절대적 적극적 속인주의를 규정하고 있어 행정법의 경우와는 다르게 장소적 적용범위가 판단되어야 한다. 대상판결은 ‘절대적 적극적 속인주의’를 규정한 제3조의 해석에만 집착하여 국외에서의 행정형법 위반도 항상 처벌하여야 한다고 하지 않았다는 점에서 의미가 있다. 그러나 대상판례는 형법에 있어 ‘속인주의의 적용범위’에 대한 문제로 해결할 것을 단순히 ‘당해 구성요건 해석’의 문제로만 해결하였다는 점에서 한계가 있다.BR 형법 제8조 단서에 따르면 해당 법령에 ‘특별한 규정’이 있는 경우 제3조가 적용되지 않을 수 있다. 그리고 제8조 단서의 적용 결과가 처벌범위의 축소로 작용하는 경우이므로 이러한 ‘특별한 규정’에는 묵시적인 규정도 포함된다고 해석하여도 죄형법정주의 위반은 아니다. 이러한 묵시적인 규정의 유무에 대한 해석에 있어서는 해당 법률의 입법목적, 제반 관계규정의 취지 등을 고려해야 한다. 따라서 행정형법 중 일부는 국내에서만 적용된다는 점을 절대적 적극적 속인주의를 규정한 현재의 형법규범 하에서도 논리적으로 설명할 수 있다. 다만 이러한 해석에 의하여 모든 행정형법의 적용범위가 국내에 한정되는 것은 아니며 개별 행정형법에 따라 살펴보아야 할 것이다.BR 대상판례에서 문제된 무자격자에 의한 안마시술행위는 해당 행정형법을 규정하는 의료법의 규정취지가 ‘국민의료에 필요한 사항을 규정함으로써 국민의 건강을 보호하고 증진함’에 있음을 고려할 때, 제8조 단서의 특별한 규정이 있는 때에 해당하여 제3조의 적용이 배제되고 국내에만 적용된다고 할 수 있다.

PENGATURAN HUKUM PIDANA DI BIDANG PERPAJAKAN DAN HUBUNGANNYA DENGAN HUKUM PIDANA UMUM DAN KHUSUS CRIMINAL JUSTICE REGULATION IN THE TAXATION FIELD CRIMINAL AND ITS RELATION TO GENERAL AND SPECIAL CRIMINAL LAW

Income funds contribution that coming from taxpayers is a significant input of opinion and have a broad significance for the development of the Unitary Republic of Indonesia. One must be concern is the effort to increase awareness of taxpayers to pay taxes and also as the essence of the regulation and the imposition of criminal sanctions in the field of taxation. The criminal action in the field of taxation is included criminal law in the field of administration (administrative criminal law or crimes dependent) known simple and flexible in enforcing of the law, as long as the objective of law is reached, the taxpayer would pay tax in accordance with its obligations. The use of criminal common law or penal code/law dealing specifically with criminal acts in the field of taxation is inappropriate and can caused problems in law and justice. Therefore, public crime or specific crime related to the occurrence of a tax crime is a stand-alone with all the consequences of enforcement. Related to the implementation of corruption in the criminal acts in the field of taxation, could be run by two models, which each stand alone and not related to each other, as stipulated in Article 43 A paragraph (3) or tax laws contain provisions referred to in Article 14 Act Number 31 Year 1999 as amended by Act Number 20 Year 2001 on Eradication of Corruption.

International Prosecution and National Bureaucracy: The Contest to Define International Practices Within the Danish Prosecution Service

This article explores how international ideals and practices of law enforcement come into conflict with national bureaucracies. Drawing on original interviews, the investigation demonstrates how the competition to define the role of international prosecution impacted career strategies as well as the actual administration of criminal law within the Danish Prosecution Service (DPS). The analysis shows that this competition is embodied in two competing groups of prosecutors situated in a wider national bureaucracy—itself subject to transformations that affect the very stakes of the contest to define the international. While the institutionalists build careers closely attuned to the systemic and increasingly lean-management-inspired requirements of the DPS, the dissident and consequently unsettled position of the activists leads them to craft alternative career strategies closely related to the emergence of new international fields of criminal law.

The Provincial Power to (Not) Prosecute Criminal Code Offences

Could the Province of Ontario have refused to prosecute the new “commodification of sexual activity” criminal offence, as passed by the Federal Government in response to Bedford? That question is the subject of this paper. While there are clear precedents for provincial non-enforcement, those instances of provincial non-enforcement had seemingly been tolerated by a Federal Government ambivalent about its own laws. My position is that the provinces have at least a concurrent constitutional power over the prosecution of criminal law offences and a concomitant power to choose not to prosecute a validly enacted federal law. This position reflects an understanding of the original bargain struck in 1867 that sees the criminal justice powers separated functionally and which provides the opportunity for effective “checks and balances” in the moderation of criminal law. After discussing the delicate balance established by the British North America Act, 1867, the judicial unsettling of this scheme in the early 1980s will be briefly examined and questioned. I argue that the judiciary, for reasons unrelated to the administration of criminal justice, skewed the underlying constitutional design to accommodate other (non-criminal) federal objectives. While this “unbalancing” of the criminal justice powers has likely inhibited provincial exercises of their prosecutorial authority—or at least contributed to the confusion about their operation—a provincial power of non-enforcement remains viable even under Laskin’s “delegated” approach. Several objections to non-enforcement are considered and found unwarranted in light of the overall discretionary nature of criminal prosecution. Properly understood and properly exercised, however, provincial non-enforcement is best understood as harmonious with the constitutional balance struck in 1867 and could continue to offer salutary effects for the administration of criminal law in Canada.

The Use of Analogy in the Administrative Law

Analogy means that one or more statutory provisions are stripped of their non-essential parts, and in this purified form are applied to cases which are different, but not essentially different from the cases regulated in the statute. This is an important legal method. In Anglo-American law it is relevant for the analysis of case law applicability. In Civilian legal tradition it is the predominant form of gap-filling. This method is of highest importance in the civil law and significantly curtailed in the criminal and administrative criminal law. The open question is the application of various forms of analogy in administrative law. Authors analyze the legal framework for application of analogy in administrative law and the methods of its application. Special problem of analogy in administrative law are the limits of application.