Criminal Negligence Research Articles

Juridical Review of Restorative Justice in The Case of Criminal Negligence Causing Death in The Gianyar Resort Police

In Article 5 and Article 6 of the Regulation of the Chief of Police of the Republic of Indonesia Number 8 of 2021 concerning Handling Crimes Based on Restorative Justice, some conditions must be met for a case to be resolved through restorative justice. This regulation emphasizes that not all criminal acts can be resolved through restorative justice. Settlement through restorative justice is not necessarily able to eliminate or stop an investigation and/or investigation in the Police, especially against article 359 of the Criminal Code because legal norms are blurring. for example, in the case of the Ayuterra Resort Owner and the Contractor, can be interpreted as who is most responsible for the breaking of the elevator / Inclinator rope which caused the death of 5 (five) employees because in one criminal event, it is not possible that both can be used as Criminal Offenders. Obstacles in the application of restorative justice experienced by the investigators of the Gianyar Resort Police on the crime of negligence that caused death, among others: There is no common perception of the application of articles 359 on negligence causing death among law enforcement officials regarding the handling of restorative justice for the best interests of the perpetrators of criminal acts of negligence causing death

Doctors in conflict with the criminal law: A records review of gross medical negligence cases under the Indian penal code

Medical negligence is a critical issue in the healthcare system, often resulting in harm to patients and legal disputes. Objectives: The article focuses on cases of criminal medical negligence in India, including notable cases such as Jacob Mathew, Syad Akbar, and PB Desai. The study aims to analyze the judgments given by courts against medical professionals charged under the Sec. 304A of the Indian Penal Code (IPC). This specific study was undertaken as there was a dearth of research around criminal negligence; however, ample data were available for civil breach of duty by doctors. Material and Methods: This is a records review type of research. The research methodology involved conducting an extensive search for relevant judgments on indiakanoon.com using keywords such as “medical negligence,” “due care,” “Bolam test,” and “Supreme Court (SC) judgments.” The study specifically focused on judgments that pertained to criminal cases under Section 304 IPC (Death due to rash or negligent action) while excluding civil cases, consumer court cases, and disciplinary actions of state medical councils. Results: After conducting a judgment search, 90 cases met the inclusion criteria. The legal principles pertaining to negligence as established in the Jacob Mathew case, such as the definition of negligence amounting to a criminal nature and the criteria for determining a breach of duty, were reproduced. In the Syad Akbar case, SC laid down the difference in evidence required to prove medical negligence amounting to a crime. In the PB Desai case, the court clarified that mere differences in opinion between 2 doctors do not amount to negligence if due care was taken and the treatment was in line with the standard of care applicable at that time. Conclusion: The results of the study provide valuable insights into the judicial approach to criminal medical negligence cases in India. By examining a range of judgments from different jurisdictions, the study identifies common themes, emerging trends, and significant precedents that shape the legal landscape surrounding medical negligence. It underscores the need for robust standards of due care and emphasizes the role of the judiciary in promoting patient safety, accountability, and fair compensation in cases of medical negligence. This article contributes to the existing body of knowledge on medical negligence in India, serving as a valuable resource for legal professionals, healthcare practitioners, policymakers, and researchers interested in understanding and addressing the complexities of this important issue.

CORPORATE CRIMINAL LIABILITY FOR CRIMINAL NEGLIGENCE OF FOREST AND LAND FIRE CAUSES

During the globalization era, forest exploitation has become more frequent, one of them is burning land as a cause of rapid reduction in forest area. Forest and land fires caused by human activities can be categorized as legal acts, i.e. those occurrences or events that can trigger legal consequences. Therefore, forest and land burning is not included in ordinary criminal offenses. This research aims to analyze the arrangements for criminal liability for criminal negligence that causes forest and land fires (Ius Constitutum) and to analyze the considerations of the judges for negligence for causing forest and land fires in Decision Number 71/Pid B/LH/2021/PN Snt. The method used is a normative method with a statutory approach, legal concepts and theories. The result of this research is that criminal liability for the causes of forest and land fires can be identified from several legislations that have been established and are applicable at this time, both those committed intentionally and due to negligence, and both those committed by individuals and those committed by corporations. The Judges’ consideration in Decision Number: 71/Pid B/LH/2021/PN Snt, imposed a fine and additional punishment on the defendant that is PT Mega Anugrah Sawit. The judge only recognized the defendant’s guilt due to negligence, while from the facts of the trial there was an element of intent.

Interpretation of the signs of improper performance of professional duties by a medical or pharmaceutical worker based on the analysis of legal positions of the Supreme Court

The article is devoted to the analysis of the judicial practice of the Supreme Court regarding criminal liability for non-performance or improper performance of official duties by a doctor, clarification of the main reasons that contribute to the commission of this crime and ways to prevent them, determination in which categories of medical professions this offense is most often committed, monitoring legislative framework regulating the activities of medical workers. Within the framework of this article, the decisions of the Criminal Court of Cassation as part of the Supreme Court (CCC) was studied, which set out the legal positions of the court of cassation regarding prosecution for the improper performance of professional duties of doctors. The question of the responsibility of doctors for the improper performance of professional duties is very complex, since the activity of providing medical services quite often carries the risk of adverse treatment results for the patient, in the form of unavoidable consequences. In many cases, a doctor who respectfully fulfills his professional duties makes everything possible, but for reasons beyond his control, he is unable to prevent harm to the patient's health. In such a case, the medical worker is not held liable, even in the event of the patient's death. However, in some cases, studies that are difficult for the patient's health or his death cannot be avoided, and their occurrence is connected with the doctor's non-fulfillment or improper fulfillment of his professional duties. Non-fulfilment of professional duties means that a medical or pharmaceutical worker does not perform those actions that he is obliged to perform by virtue of the work performed. Non-fulfilment or improper fulfillment of professional duties by the relevant entity can be both one-time and systematic. Since the disposition of article 140 of the Criminal Code of Ukraine has a blanket character, in each specific case it must be established which professional duties were entrusted to the guilty person and which of these duties were not performed at all or performed improperly, as well as the requirements of which specific regulatory acts (instructions, rules, instructions etc.) violated by the offender. In each specific case, in order to prove the guilt of a medical or pharmaceutical worker, it must be established which professional duties were entrusted to the guilty person and were not performed at all, which is the absolute inaction of a medical worker under a real opportunity to act, and which of such duties are improper performed, i.e. medical workers perform their professional duties, but with significant violations of direct duties, which are regulated by job instructions, qualification requirements and treatment protocols with a clear algorithm of actions, orders and instructions of the Ministry of Health and SES of Ukraine, WHO recommendations. Key words: improper performance of professional duties by a doctor, medical assistance, medical documentation, professional activity, childbirth, criminal negligence, death, grave consequences, criminal liability.

On the distinction between criminal negligence and innocent harm in the conditions of dangerous industrial activity

The article discusses the controversial aspects of the qualification of careless acts, the problems of distinguishing criminal negligence and innocent harm. The authors analyze the doctrinal and practical issues of assessing the actions (inaction) of subjects who carry out hazardous production activities, are equally responsible for compliance with safety regulations and are required to clearly perform their functions in the division of labor. At the same time, as a result of such joint actions, the death of one of the participants in the process occurs. In this case, is the consequence of death causally related to the behavior of the survivor, to what extent should he be responsible for the actions (inaction) of the deceased. The paper indicates that with a detailed analysis of the situation, it is possible to talk about the absence of criminal negligence and the presence of innocent harm. The possibility of foreseeing adverse consequences in this case is always mediated by the behavior of another person (persons) who jointly carry out a dangerous type of activity, unforeseen circumstances related to the actions of other responsible participants in the development of the situation may interfere in the chain of development of the causal relationship.

Důsledky trestního řízení pro postavení zaměstnanců veřejné správy

Laws regulating the legal status of individuals who professionally perform tasks of public administration (such as civil servants, police officials, appointed or elected representatives of administrative authorities, etc.) impose certain requirements on these individuals. One of these requirements is criminal integrity, which means that these individuals should not have a criminal conviction. The laws regulating the legal status of various categories of public employees differ in terms of whether they prohibit individuals convicted of intentional crimes from performing public tasks, or if they also include individuals convicted of criminal negligence. Furthermore, different laws handle the consequences of initiating criminal proceedings differently. This paper examines the laws that regulate the legal status of different categories of public employees and highlights the common elements and differences among these laws. The analysis concludes by outlining general rules that should be applied to all public employees.

Implementation of Restorative Justice Policy against Perpetrators of Criminal Negligence that Causes Death

Requests for termination of prosecution against perpetrators of criminal negligence causing death can be rejected or granted even though they use the same technical guidelines, namely Circular Letter of the Deputy Attorney General for General Crimes Number 01/E/EJP/02/2022. The research focuses on understanding the policy parameters of restorative justice for perpetrators of criminal negligence causing death and the ideal implementation of restorative justice for perpetrators of criminal negligence. This research is a normative juridical research with statutory approach, case approach, and conceptual approach. Restorative Justice Application is granted because the parameters of negligent acts are not purely in the perpetrator but also carried out by the victim himself, while the application is rejected because culpa only comes from the actions of the perpetrator. The ideal implementation of restorative justice policy must lead to efforts to restore the original state, no negative stigma from the community, and oriented to technical efficiency and legal certainty for the parties. Suggestions from the research results are that case termination based on restorative justice requires certainty in technical regulations, for example through the Attorney General's Regulation. The ideal implementation of restorative justice policy must pay attention to: a unified written policy / lex scripta that can be accessed by the public, can be tested, integrative between judicial mechanisms and pay attention to functional differentiation of criminal justice, as well as harmonization of subjects and objects in prosecution.

Medical Negligence orMalpractice: Critical Review of Relevant Laws in Pakistan

Introduction The terms 'medical negligence or medical malpractice' are often used synonymously, however, in stricto senso 'medical negligence' include “criminal negligence” while 'medical malpractice' encompasses civil negligence including two other types, i.e., contributory and third party negligence. The word negligence is a noun meaning “not to give proper care or carelessness”. Therefore, the medical negligence means medical treatment without proper care or is an act or omission by a medical practitioner therein he has deviated from accepted standards of practice in the medical fraternity and caused damage/injury or death to the patient. In case of damage/injury, it falls within the ambit of civil negligence and in case of death of patient; it falls within the purview of criminal negligence. Medical Negligence comes under the category of tort law. The scope of medical negligence is not limited to conduct of the medical practitioner alone. It extends to his staff working under his supervision (3rd party negligence) and in a hospital setting to the whole unit (captain of ship theory/master is responsible /vicarious liability) and in some cases role of patient also contribute in it (contributory negligence).

중대재해처벌법위반죄의 구성요건체계에 관한 고찰

Severe Accident Punishment Act(SAPA), which was enacted after much controversy, has been in effect for a year, but there are still questions about its systematic consistency and effectiveness. SAPA was not sufficiently researched and reviewed during the legislative process. Therefore, it is inevitable that it will continue to be a problem in the future. Theories of criminal law such as responsibility principle, systematic status, and balance of crime and punishment have not been sufficiently reviewed. Its place was replaced by the force of punishment and harsh punishment. In legislative process, only one purpose was fulfilled faithfully. It means that the subject of criminal responsibility is extended to responsible managing officer, and the punishment is high. And as a result, despite the fact that serious industrial accident involuntary manslaughter have the nature of criminal negligence, the sentencing structure of consequentially aggravated crime was adopted. The ultimate purpose of punishment for those involved in safety accidents should be to promote the safety of people's lives and bodies through accident prevention. However, it seems skeptical whether SAPA meets this goal. In conclusion, this act requires comprehensive revision that considers the systematic consistency of punishment and its relationship with the Occupational Safety and Health Act in a balanced manner. In addition, there is a need to acknowledge the legislative failure before more cases of application are accumulated and to consider reform it from the beginning after abolishing it.

Another Tragedy in Outdoor Education

The legalities around incidents in outdoor education (OE) are undeniable, and ignorance is not a defence. Using case study analysis specific to legal literacy, we extend this analysis to include the “7 Rights” framework and add two additional rights for consideration, referred to as the 9 Rights. This discussion organizes what is publicly available on the Toronto District School Board (TDSB) outing, and death of Jeremiah Perry, and draw insights from the decision of the Ontario Superior Court of Justice in the subsequent criminal negligence trial. We present our analysis and recommendations, based on the 9 Rights. By exploring pertinent legal terminology, relevant to this case, the 9 Rights guides risk analysis for trip planning, in-field risk assessment, and risk management. The unfortunate crux of this discussion, and many OE incidents in Canada, is that the law enters the learning equation only after something goes wrong.

Ossolineum as a common historical heritage of Ukrainians and Poles

Historically, it happened that Ukrainians and Poles, during long historical periods, lived within the same states, such as theAustro-Hungarian or Russian empires, the First and Second Years of Partition, and therefore, in fact, both peoples are involved in the formation of cultural heritage such as, for example, the Osolinski library. Being a gift to the city of Lviv at the beginning of the 19th century, the library grew over the following years, and by the beginning of the 20th century it became one of the richest in Central Europe. Due to the change of borders and the state affiliation of Lviv, as a result of two world wars and the criminal negligence of the Soviet authorities regarding the Ukrainian cultural heritage, a significant part of the Ossolineum's funds ended up on the territory of the Republic of Poland. The transfer of Ossolineum funds by the Soviet side of Poland was carried out in several stages between 1945 and 1987. At the beginning of the 90s of the 20th century, the negotiation process began between Ukraine and the Republic of Poland on the return of Ossolineum to its country of origin. In fact, throughout the 1990s and two decades of the 21st century, discussions between Ukraine and Poland about the ownership of Ossolineum and its restitution to Ukraine continued. Unfortunately, all these negotiations, as of today, have not yielded any results.

Corteva sentenced for criminal negligence after incident

A Corteva Agriscience subsidiary has pleaded guilty to criminal negligence, 8 years after an accidental chemical release killed four employees and injured several others at a now-defunct insecticide plant in La Porte, Texas. On April 24, a US district judge ordered the subsidiary, EIDP Inc., formerly E. I. du Pont de Nemours and Company Inc., to pay a $12 million penalty and make a $4 million community service payment to the National Fish and Wildlife Foundation. EIDP must also serve 2 years of probation, during which time the company must provide the US Probation Office full access to all its operating locations. The accident, which occurred on Nov. 15, 2014, at what was then a DuPont facility, released nearly 11 metric tons of highly toxic methyl mercaptan after plant workers tried to clear a section of blocked piping. A US Chemical Safety and Hazard Investigation Board probe after the incident

Corteva sentenced for criminal negligence 8 years after a methyl mercaptan leak killed 4 employees

Corteva sentenced for criminal negligence 8 years after a methyl mercaptan leak killed 4 employees

DIE BEDEUTUNG VON „KÖNNEN“ BEI FAHRLÄSSIGKEIT UND SCHULD

In connection with criminal negligence, the focus is regularly on whether the perpetrator “could have” recognized and avoided the situation he brought about, whether (s)he “could have” acted more carefully or complied with the requirements of due diligence. When examining guilt, it is also important (in the case of intentional as well as negligent offenses) whether the perpetrator “could have” recognized the wrongfulness of his/her act and “could have” acted according to this insight. If the “(s)he could have” perspective is rejected, the offender remains unpunished. On the other hand, there is a controversy regarding the extent humans can freely choose their perceptions and behaviour at all or whether these are ultimately determined by external and internal circumstances. The article explores the question of how a “(s)he could have” requirement can be conceived in law and especially in criminal law in a way that remains unaffected by the unsolved debate between “free will” and “determinism”. The author proposes that in the phrase “(s)he could have” the word “can” should not be understood in the (indeterministic) sense of alternative perceptions or behaviour, but simply as the existence of specific psycho-physical properties which, according to empirical knowledge, are necessary for compliance with a norm, just as it can be said, for example, that someone “can” speak French or that he “can” play the piano. It is also compatible with the function of “punishment” in modern (secular) criminal law to understand the “(s)he could have” requirement of punishability as a mere statement about existing, empirically ascertainable psychophysical properties of a person (and in this way to decouple it from the problem of determinism).

Negligence Failures and Negligence Fixes. A Comparative Analysis of Criminal Regulation of AI and Autonomous Vehicles

Automated vehicles (“AV”) can greatly improve road safety and societal welfare, but legal systems have struggled with the prospect of whom to hold criminally liable for resulting harm, and how. This difficulty is derived from the characteristics of modern artificial intelligence (“AI”) used in AV technology. Singapore, France and the UK have pioneered legal models tailored to address criminal liability for AI misbehaviour. In this article, we analyse the three models comparatively both to determine their individual merits and to draw lessons from to inform future legislative efforts. We first examine the roots of the problem by analysing the characteristics of modern AI vis-à-vis basic legal foundations underlying criminal liability. We identify several problems, such as the epistemic problem, a lack of control, the issue of generic risk, and the problem of many hands, which discommode the building blocks of criminal negligence such as awareness, foreseeability and risk taking – a condition we refer to as negligence failures. Subsequently, we analyse the three models on their ability to address these issues. We find diverging philosophies as to where to place the central weight of criminal liability, but nevertheless identify common themes such as drawing bright-lines between liability and immunity, and the introduction of novel vocabulary necessary to navigate the new legal landscape sculpted by AI. We end with specific recommendations for future legislation, such as the importance of implementing an AI training and licensing regime for users, and that transition demands must be empirically tested to allow de facto control.

THE CONTENT OF OBJECTIVE AND SUBJECTIVE SIGNS OF A CRIMINAL OFFENSE PROVIDED FOR IN ART. 119 OF THE CRIMINAL CODE OF UKRAINE

The article analyzes the theoretical and practical aspects of the application of Article 119 of the Criminal Code (CC) of Ukraine. The objective and subjective features of the criminal offense "Murder due to carelessness" have been identified and analyzed in detail. In particular, the features of the objective side of Article 119 of the Criminal Code of Ukraine were studied: actions, consequences, cause-and-effect relationship. The signs of the subjective side expressed in the form of guilt, which in turn is expressed in the form of criminal unlawful self-confidence or criminal unlawful negligence, motive or purpose, were studied. The moment of the end of the socially dangerous act provided for by Article 119 of the Criminal Code of Ukraine has been determined. Keywords: murder, manslaughter due to negligence, negligence, criminal wrongful confidence, criminal wrongful negligence.

Criminal negligence of a public health doctor conducting care work

The article discusses the criminal negligence of a public health doctor when performing care work. It is based on a Bachelor’s thesis on the subject, which examines how the criminal negligence of a public health doctor is assessed. The research method used is legal dogmatics, which is used to interpret and systemize criminal law provisions. In addition, the method seeks to reformulate legal problems, to show new types of systemic connections and to structure aspects relevant to the solutions of the problem. After the introduction, the article looks at negligence in care work generally. It includes criminal negligence in general, the concept of unactual negligence (neglect of rescue) in brief, as well as the concepts of objective and subjective negligence. It then examines the criminal offences applicable to care work, such as negligent violation of official duty and the provisions relating to criminal offences against life and health, as well as negligence in the application of those criminal offences. The last chapter contains conclusions and a summary. It is worth noting that the criminal liability of a public health doctor in care work is much wider than that of a private doctor. This is because, when the public health doctor acts negligently, they are also in breach of their official duties. Violations of official duty do not require personal injury, unlike negligent offences against life and health. However, there is little exercise of public authority in care work, so the stricter responsibility of a public health doctor is poorly justified by the legislator.

Review: The Restless Dead: Necrowriting & Disappropriation, by Cristina Rivera Garza

Review: <i>The Restless Dead: Necrowriting &amp; Disappropriation</i>, by Cristina Rivera Garza

Vonnisbespreking: Die strafregtelike vervolging, skuldigbevinding en kwytskelding van ’n verloskundige en ginekoloog Van der Walt v S [2020] ZACC 19

To date, few South African doctors have been found guilty of medical negligence in a criminal court (see e.g. R v Van Schoor 1948 4 SA 349; S v Mkwetshana 1965 2 SA 493 (N)). In the field of gynaecology and obstetrics, the unreported case of S v Nell 1987 TPD (see Strauss 1991:280–1) is relevant. In this case, a general practitioner was found guilty of culpable homicide on the ground of negligence during a birth process for attempting to remove the patient’s placenta without the assistance of an obstetrician. The court a quo’s sentence of five years imprisonment, of which three years were conditionally suspended, was changed by the full bench of the Transvaal Provincial Division (TPD; to which the accused appealed) to a fine of R5 000 or to two years’ imprisonment. In Van der Walt v S 2019-4-11, case no. A13/2018, the High Court dismissed an appeal against the merits and the sentence of the Regional Court and sentenced the gynaecologist-obstetrician to five years imprisonment after he was found guilty of culpable homicide. An appeal to the Supreme Court of Appeal was dismissed, but the Constitutional Court in Van der Walt v S [2020] ZACC 19 allowed the doctor’s appeal against the judgment on the ground of alleged irregularities in the handling of the case in the court a quo. His contention was that his right to a fair trial, as protected in section 35(3)(i) of the Constitution, was violated in that the magistrate pronounced on the admissibility of only certain exhibits during her judgment. She had also relied on medical textbooks in her judgment that were not disclosed during the trial. His appeal against his sentence was moreover based on the fact that it violated section 12(1)(a) of the Constitution. The Constitutional Court subsequently allowed the appeal against the fairness of the trial but dismissed the appeal against the sentence. In order to better contextualise the judgment of the Constitutional Court, the judgment of the High Court requires closer inspection. The High Court judgment detailed the specialist’s negligence towards one of his patients, whose death after giving birth was found to have been caused by severe blood loss not being attended to by the specialist. Both the Regional Court and the High Court (sitting as a court of appeal) found him guilty on a charge of criminal negligence. Regrettably, the Constitutional Court’s focus was limited to the alleged irregularities by the court a quo and not the context in which said irregularities occurred. The Constitutional Court therefore upheld the appeal and directed that the case be referred back to the Director of Public Prosecutions for a decision on whether or not to reinstitute action in a Regional Court in front of another magistrate. As a consequence, the specialist’s sentence fell away following the Constitutional Court’s declaration that the trial in the Regional Court was unfair.

Ethics and Law.

Ethics and Law.