Criminal Wrongdoing Research Articles

Comparative Analysis of Bribery as, Criminal Wrongdoing

There is a consensus that bribery, which is explicitly outlawed in the Magna Carta, should be considered a criminal act. Elucidate the criminalisation of bribery may be unexpectedly for those who see harmful actions as the primary criterion for determining what should be made a criminal offence. The predicament faced by these intellectuals is as follows. Bribing sometimes encompasses innocuous misconduct, but the rationale for criminalising it does not stem from any undue damage inherent in bribing itself. The rationale is on the potential damage that may occur if bribery is not penalised, considering the limited efficiency of civil law in reducing its prevalence. According to some theorists, the basis for criminalising activity based on the concept of "remote harm" is considered a secondary and possibly problematic kind of criminalisation. This paper presents a challenge for these theories in elucidating not only the reasons behind bribery but also the reasons behind other significant offences, such as rape, which are often seen as fundamental instances of criminal misconduct. Indeed, criminal law has the lawful authority to include a broad array of harm-related justifications for including action within its boundaries and central principles. One cause for the activity involving inflicting unnecessary injury is the reality itself.

Характеристика способів розкрадань чужого майна з використанням інформаційних технологій

The article is devoted to the study of the mechanism of embezzlement of someone else's property, which is carried out using information technologies in the context of current legislation. The methodological basis was a systematic approach to the study of the mechanism of criminal offenses related to the theft of other people's property and the influence of information technologies. The main role was played by general scientific methods, historical, logical, comparative, generalization and classification, analysis and synthesis, deduction and induction. The following private research methods were used: comparative legal, formal legal, legal modeling. The object of the article is the relations arising in connection with theft in the field of information technologies as one of the most popular types of cybercrime. It is noted that criminal wrongdoing in cyberspace is a very specific category that is constantly evolving along with technological progress. Criminal offenses related to embezzlement of someone else's property using information and communication technologies - fraud, theft, embezzlement and embezzlement - were analyzed. It is noted that the mechanism of the crime as a whole system of circumstances, processes, factors that cause the emergence of carriers of information about the event of a criminal offense, its participants, provides the possibility of planning an investigation, searching for consequences, contributes to the criminal-legal qualification of the offender, acts as an object of forensic knowledge. It is emphasized that the scattering mechanism with the use of information technologies determines the appearance of traces. The mechanism of the criminal offense indicates the nature, essence and content of the functional side of the criminal activity, the regularities of the processes of interaction of the participants of the criminal event with each other and with the surrounding material environment, the regularities that cause the emergence of sources of forensically significant information about the crime and its participants. Further research should be directed to the study of the influence of certain information technologies on the theft of other people's property.

The Missing Alternative Objection to Criminal Law Abolitionism

Criminal law abolitionists claim that legal punishment cannot be morally justified and that we should therefore abolish criminal law. While this is still a minority position in the current debate, the number of proponents has been increasing, and even opponents have developed a certain degree of sympathy for such claims in recent years. Yet one of the reasons many remain hesitant regarding the abolition of criminal law appears to be the lack of a thought-through alternative, in addition to abolitionists disagreeing considerably amongst themselves on what an alternative should look like. I will call this the missing alternative objection. To address this central concern, I will argue in this paper that the most prominent versions of abolitionism actually converge on the same alternative core to criminal law — even though they are driven by vastly different motivations. This core that current abolitionist theories converge on is two-fold: first, the claim that the state should compel offenders to provide restitution for the victim; second, the claim that restorative processes should be used wherever possible when addressing criminal wrongdoing. This common core is enough to reject the missing alternative objection.

STUDI PUTUSAN NOMOR 121 K/Pid.Sus/2020 TERHADAP TANGGUNG JAWAB DIREKSI MENGENAI PRINSIP GOOD CORPORATE GOVERNANCE DALAM PENGELOLAAN PERSEROAN TERBATAS

A major responsibility of the Board of Directors is to manage the Company in good faith and responsibly, in line with the goals of the Company itself. The Board of Directors may be exonerated from this duty in the event that an error is made and the Board of Directors is promptly held accountable for it if they can show that the error was not their fault. The Regulation of the Minister of BUMN Number Per-01 / MBU / 2011 regulates excellent corporate governance, which the Board of Directors must follow when performing its tasks. The goal of this study is to determine the board of directors' obligations with reference to sound corporate governance based on the application of the board of directors' duties with regard to the principles of sound corporate governance in the management of a limited liability company and Supreme Court Decision Number 121 K/Pid.Sus/2020. This statutory approach method is employed in the normative juridical research, which focuses on examining how rules or norms are applied in positive law. The findings demonstrated that every requirement of Article 97, paragraph 5, of the Company Law had been met by Karen Agustiawan's conduct. Directors of SOEs who have managed the company utilizing Good Corporate Governance can only be classified as a business risk and not as engaging in criminal wrongdoing.

Beltran-Serrano v. City of Tacoma

Abstract In Tacoma, Washington, on a late June afternoon in 2013, a police officer brutally shot an unarmed, mentally-ill, middle-aged homeless man four times in the back with a Glock 45. He was not a suspect in any criminal wrongdoing, and horrified eyewitnesses confirmed that he was not posing a threat to anyone, including the officer, at the time of the shooting. The victim, Cesar Beltran-Serrano, survived, and subsequently sued the city for his injuries. The case eventually landed at the Washington Supreme Court, where the court was asked to resolve two separate legal issues: does the public duty doctrine immunize localities from liability when an officer has affirmatively acted (rather than just failed to act), and can a police officer who intentionally shoots a person be liable in both negligence and intentional tort. The court found in favor of the plaintiff on both issues. In so doing, the court created a viable and accessible path towards greater police accountability. On this basis alone, the decision deserves a spot in this symposium issue on the Great Tort Cases of the 21st Century. Yet the case does still more: its holdings are important not just for plaintiffs bringing claims against police, but for parties in cases far beyond the police/city context. Most notably, the issue of whether negligence can co-exist with intentional assault and battery claims is of particular importance to sexual assault tort litigation and potentially opens pathways for other contexts as well. The dual holdings in Beltran-Serrano thus hold much promise for those seeking social justice through tort law.

Children — Victims of Cannibalism (based on the materials of the Chelyabinsk governorate of the early 20s of the XX century)

Under the extreme conditions of famine in the early 20s of the twentieth century, there appeared a new criminal wrongdoing, which had never existed in the Urals before — not just murder, but depriving somebody of life in order to eat the body of the murdered, including children . In the Verkhneuralsky County, cannibalism had become almost a commonplace, there were 13 such facts registered in the Chernigov Cossack village, 11 such facts registered in Velikopetrovskaya, 5 in Magnitnaya, 5 in the Polotsk village, and “mass corpse-eating”was registered in Kizelskaya . Cannibalism also spread to other parts of the governorate . One of the egregious facts of child cannibalism was recorded in the Nasledninskaya Cossack village of the Troitsky County . In the province, there was the following number of cases of cannibalism registered in the three most hunger-bitten counties: Verkhneuralsky — 84, Troitsk — 5, Miass — 7 . There are 98 facts in total in the governorate . The scope of cannibalism frightened and forced the executive committee on March 7, 1922 to consider the issue “On the fight in the Chelyabgubernia against cases of cannibalism, corpse-eating, selling the flesh of human beings and selling products from it in the form of pies, etc . on the market” Speaking about the role of the court in suppressing this wrongdoing, we note that the competence of the special session included the issue of considering cannibalism cases . Hunger, and as a result cannibalism, spread throughout the country, and caused a certain brutality of the population . The recurrence of cannibalism in the Chelyabinsk region arose during the hunger-bitten war years, for the first time such facts were recorded in 1943

The Waiting Game: Who Benefits from Recovered Assets Associated with Venezuelan State Corruption? Remission as a Solution

The Bolivarian Republic of Venezuela (“Venezuela”) has, and continues to undergo, significant political and economic challenges stemming from government corruption. In response, the United States government has seized assets of current or former Venezuelan state officials associated with criminal wrongdoing, imposed sanctions on Nicolas Maduro’s government, and proposed legislation to combat corruption. The Department of Justice (“DOJ”) has led dozens of prosecutions against those responsible for these crimes through its use of asset forfeiture, a critical tool in the recovery of illicit proceeds. An estimated $300 billion of these assets are held in South Florida alone, with $1.5 billion identified in U.S. court filings. The U.S. government has freed up assets on a very limited basis for emergency use by the U.S.-recognized opposition government. This begs a few questions: will these assets be returned to victims of corruption, and, if so, when, to whom, and how? To remedy this dilemma, the U.S. government should open the door to reviewing petitions for remission: a DOJ-led mechanism used to compensate victims that experienced a pecuniary loss as a result of a crime underlying forfeiture. This process, which is authorized under the forfeiture statutes and other regulations, has proven to be successful when compensating victims in large, multi-victim, white-collar crime cases. However, the review and approval of remission applications lies solely in the hands of the DOJ, with no possibility for judicial review. Still, victims that can meet the intricate requirements of remission have a chance at compensation for their financial losses. Through this process, the DOJ’s Asset Forfeiture Program can accomplish one of its primary goals in support of those affected by Venezuelan-state corruption: recover and return forfeited assets to victims.

Legal Obligation, Criminal Wrongdoing, and Necessity

AbstractIndividuals sometimes do things that they know will violate the terms of a statute. Most scholars deny that such actions are always morally wrong, but a coherent theoretical account of the relationships between 1) moral obligation, 2) legal obligation, and 3) criminal wrongdoing that can robustly classify hard cases has been elusive. This article starts with a Kantian account of the relationship between law and morality, and it proposes two closely related standards: one for legal obligation, and another for criminal wrongdoing. It then tests the plausibility and resilience of these standards by using them to generate illuminating new analyses of classic hypothetical cases involving alleged crimes committed under circumstances of necessity. These analyses offer reason to believe that the standards proposed in this article can anchor a Kantian theory of criminal responsibility that is simultaneously rigorous and humane.

Directions for the implementation of foreign experience in operative and investigative counteraction to intentional murders by criminal police units (on the example of Canada and the USA)

Recently, scientific interest in the study of foreign experience in combating criminal illegality among domestic scientists is constantly growing, which indicates an effort to investigate the best preventive practices of separate countries and the search for ways of their implementation in Ukraine. However, with regard to the direct study of the foreign experience of operative and investigative countermeasures against intentional murders by police units of various foreign countries, there is a lack of such studies today, which increases the relevance of the chosen direction and gives prospects for determining effective practices using a targeted approach to combating deliberate murders and defining such a model of operative and investigative activity. The choice of an appropriate strategy by a particular state and the formation of an appropriate preventive program or a program to combat criminal wrongdoing is determined not only by the current criminogenic situation in this country and in the world in general, but also by the relevant historical, cultural and religious traditions. When considering the specifics of combating criminal wrongdoing in a particular country, it is necessary to take into account the country's membership of the corresponding criminological system. Modern criminology distinguishes Anglo-American, Western European, East Asian, socialist, Muslim and mixed criminological systems.
 The reforms that have been taking place in Ukraine recently require restructuring and a significant increase in the level of efficiency and quality of law enforcement agencies. First of all, these requirements apply to operational units, patrol police and community police officers. Successful implementation of the tasks assigned to these divisions is impossible without taking into account the best examples of the experience of countries such as Canada and the USA. The purpose of the article is to analyze the international experience of operational and investigative prevention of intentional homicides by criminal police units, as well as legislation that provides for the development of an effective system of prevention of intentional homicides in Ukraine. The task of the research is the analysis of various programs to combat intentional homicides that operate in different countries of the world, as well as the international experience of operative and investigative prevention of intentional homicides, which can become the basis for the development of appropriate Ukrainian legislation in this area. The positive international experience of operative and investigative prevention of intentional murders is analyzed. The experience of the USA in combating criminal wrongdoing, in particular intentional murders, is considered, and three models of preventive activity are distinguished and analyzed: the model of social institutions, the model of individual safety, and the model of influence through the environment. It was concluded that conducting a comparative analysis of the prevention of intentional homicides in different countries is the basis for the development of the most promising directions for improving domestic legislation in this area.

Reform of Anglo-American Complicity Law: Conduct, Connectivity and Comparative Solutions

The challenge presented by extant Anglo-American complicity law is that it intractably homogenises different participatory modalities across a broad landscape of culpability, and ultimately the controller/instigatory actor may be treated alike with the ethereal shadow marionette. It is essential to effect change, not only as a concern of appropriate legal substantive reformulation, but also to avoid capricious practical unfairness. It should not be reforms predicated on the illusory distillation of causality requirements, between assistance and encouragement provided by the accessory and direct commission of harm(s), but rather on an imputed-normative-proportionality standardisation, reviewable via evidentiary perspectives in terms of actual intercessory conduct. A critique of alternative legal system approaches to complicitous behaviour, notably the Germanic Criminal Code, provides further significant insights towards the adaptation of a new accessorial liability framework. This broadened template promulgates a synchronous and complementary original review of withdrawal precepts. A redemptive change of heart aligned with appropriate reductive criminal depredation may exculpate via reverse conduct prophylaxis. Only an individual actor who has manifestly interceded in criminal harm(s), adjudged by the jurors as moral arbiters within prescribed gradations of culpability, as addressed herein, should rank imputably in equiparated blameworthiness with the principal offender. If this equiparation is lacking, or if the criminal wrongdoing is characterised as a wholly independent action by another party, then alternative forms of potential secondary party liability must be sought – a de novo facilitation offence as propounded subsequently, and consideration of reverse burden of proof.

Criminal law policy in wartime: the legislative aspect

The article is devoted to the analysis of the current state of the legislative aspect of criminal law policy in martial law.
 The situation of partial legal uncertainty caused by the aggression of the Russian Federation requires changes to the current criminal law, which would provide for responsibility for cooperation with the occupier, as well as the responsibility of those who commit actions aimed at their own enrichment in martial law, as well as actions aimed at weakening the state at the same time.
 Certainly certain norms have been present in the Criminal Code of Ukraine since its adoption, but have received a new revised application. Some of these necessary changes were made to the Criminal Code of Ukraine in March this year. However, the difficult times in which Ukraine and the Verkhovna Rada, as the legislature, find themselves, have led to some difficulties, mostly of a technical nature, which complicate the application of such norms.
 Applying the changes should take into account the time of entry into force of such changes, as well as the fact that certain acts committed under martial law, outwardly similar to criminal offenses, may in fact be circumstances that exclude criminal wrongdoing (eg, extreme necessity). Certain rules will be subject to adjustment under more favorable circumstances.
 It is proposed to use, except in special cases, the general term - the aggressor state.
 It is clear that the amendments to the Criminal Code of Ukraine will not be limited to the norms of March this year. Some of them are already being worked out in committees. We are talking about the necessary changes in international criminal and humanitarian law, which will make it possible to bring to justice the participants in the aggression against Ukraine.

Testing the Intuitive Retributivism Dual Process Model

Abstract. Research on the motives individuals have to punish criminal offenders suggests that punitive reactions are primarily driven by retributive, not utilitarian, motives. To explain this, several authors have suggested a dual process model (DPM) of punitive reactions. According to this model, punitive reactions are the product of two distinct types of processing (type I and type II), which differentially support retributive vs. utilitarian punishment motives. In response to cases of criminal wrongdoing, type I swiftly outputs a retributive reaction. In contrast, for utilitarian motives to play a role, this reaction has to be overridden by type II processing, which only happens rarely. In this article, we argue that despite its popularity, there is little concrete evidence for the DPM. We then report the results of a preregistered study investigating the effect of increased processing effort on retributive vs. utilitarian punitive reactions. We argue that the results fail to support the DPM.

Удосконалення кримінального законодавства України в умовах російсько-української війни 2022 року

The article is devoted to the review of the amendments to the Criminal Code of Ukraine adopted by the Verkhovna Rada of Ukraine during the first month since the beginning of the next act of armed aggression of the Russian Federation against Ukraine. The analyzed period is limited to the timeframe from February 24 to March 25, 2022. During this period, the Ukrainian parliament adopted 10 pieces of legislation related to amendments to the Criminal Code of Ukraine. It is noted that the relevant amendments to the legislation were made throughout Ukraine during the period of martial law. The main purpose of the adopted changes was to strengthen criminal liability for crimes committed during martial law and criminalize certain acts that have not yet provided for the occurrence of criminal liability. The first law to supplement the criminal legislation of Ukraine during martial law was the law on collaboration. Collaborative activities are now understood as a fairly wide range of criminal acts: public denial of armed aggression against Ukraine; public appeals to support the decisions and/or actions of the aggressor state; propaganda in educational institutions, voluntary employment in illegal authorities, etc. Also, the Criminal Code of Ukraine is supplemented with articles criminalizing the threat of murder of a serviceman (including production/distribution of materials containing such a threat) and justification, recognition of legitimate, denial of armed aggression of the Russian Federation against Ukraine (including production/distribution of relevant materials). In terms of liability for treason and sabotage, the legislator strengthened the liability of perpetrators to life imprisonment with confiscation of property (if the relevant crimes were committed under martial law). A separate law stipulates that civilians are not criminally liable for the use of firearms against persons who carry out armed aggression against Ukraine if such weapons are used in accordance with the requirements of a special law. Criminal liability for theft, robbery, banditry, and extortion has been strengthened. Responsibility for looting has also been strengthened. The Verkhovna Rada of Ukraine also passed a law recognizing the fulfillment of the duty to protect the Fatherland, independence, and territorial integrity of Ukraine as a circumstance that excludes criminal wrongdoing. Laws were also passed to increase criminal liability for cybercrime, establish liability for the illegal use of humanitarian aid, and disseminate information on the relocation, movement, or position of the Armed Forces of Ukraine).

The state of scientific development of the problem of operational and investigative counteraction by criminal police units to the promotion of criminally illegal activities of an organized group or criminal organization

The article examines the state of scientific development of assistance to criminally illegal activities of an organized group or criminal organization in the context of consideration of various aspects of operational and investigative counteraction to criminal wrongdoing by criminal police units.
 The relevance of the topic is proved, the priority directions that will contribute to the solution of the scientific problem are determined. It is proved that this scientific problem is insufficiently paid attention to in the works of domestic specialists in the field of operative-investigative activity, as well as at the level of dissertation and monographic research, the problem of operational and investigative counteraction by criminal police units is insufficiently studied in the field of operational and investigative activities. It is noted that solving the problems of counteracting the state of illegal activities of organized groups or criminal organizations requires a comprehensive approach and implementation of appropriate measures by the government and society to promote processes to prevent illegal activities, neutralize existing groups and organizations, overcome the consequences of participants these communities.
 It is emphasized that the priority is scientific problems related to the provision of freelancers of operational development of persons who contribute to the illegal activities of organized groups or criminal organizations; using criminal analytics to identify individuals who contribute to the illegal activities of organized groups or criminal organizations; separation of the category of persons who contribute to the illegal activities of organized groups or criminal organizations in the operational records of the National Police of Ukraine; the use of covert investigative (search) actions against persons who contribute to the illegal activities of organized groups or criminal organizations; conducting operational and investigative measures in order to identify primary operational and investigative information regarding persons who contribute to the illegal activities of organized groups or criminal organizations.

Criminal Wrongdoing, Restorative Justice, and the Moral Standing of Unjust States*

Criminal Wrongdoing, Restorative Justice, and the Moral Standing of Unjust States*

Treaty-Based Regulation and Evidence-Extradition Agreements as Critical Tools in the Fight against International Criminal Wrongdoing

Abstract Draft Article 7 of the UN Draft Convention regarding Crimes Against Humanity provides the terra firma for States to establish and exercise a range of jurisdictional bases, including universal jurisdiction, to be reinforced by State-to-State agreements regarding evidence-extradition for the benefit of downstream truth and justice seeking projects. Legal analysis demonstrates there persists an insistence on treaty regulation and clearly particularised laws at local and international levels to successfully pursue international criminal accountability. Draft Article 7 will give credence to universal jurisdiction, complement the International Criminal Court’s workings and counter its temporal limitations, and negate politically-motivated invocation of the doctrine. A case study involving Australian extradition proceedings highlights how evidence can be obtained efficiently on the basis of a pre-existing bilateral agreement between culturally distinct States. Formal arrangements regarding evidence-exchange will espouse a greater willingness by States to cooperate across borders and will strengthen universality by taking some of the guess-work out of its exercise.

Lex Specialis for Space Crimes

ABSTRACT Anne McClain, an accomplished American astronaut, was sent to the ISS for six months. While stationed there, she accessed the bank account of her estranged spouse making use of the official and privileged computer network of the ISS and NASA. The spouse has alleged unauthorised access to personal financial data as an act of personal impropriety and invasion of privacy. The matter was reported to the authorities for investigation. Media has splashed this as first case of alleged criminal wrongdoing committed in and from outer space. This particular case seems rather simple because complainant and respondent, both are US citizens as also the act has been committed in the US quarters of ISS which is the notional territory of the US. So, there is no conflict of law or jurisdiction. However, it flags many legal issues relating to crimes in outer space that may require discussion and settlement. In the future, with the advent of space tourism, commercial exploitation of celestial resources, planetary settlements, etc., far more serious and complicated crimes may be committed. And multi-nationality scenario with involvement of more than one state, private corporations and individuals may pose a lot of imponderables and uncertainties under existing space law, international law as also germane national laws. Major problems would relate to jurisdictional issues, extradition conflicts, procedural hassles or uncertainty in applicable legal code. Hence, there is need to negotiate a specialis treaty that may facilitate handling of legal and juridical specificities of crimes in space and also establish an International Court of Space Crimes for dispensing justice in disputed or delayed matters.

Behind the SNC-Lavalin Scandal: The Transnational Diffusion of Corporate Diversion

AbstractAt issue in the SNC-Lavalin scandal was a new tool of corporate criminal law: remediation agreements. Introduced in 2018, remediation agreements allow corporate diversion and create an alternative to the prosecution of corporations suspected of criminal wrongdoing. This article examines why the federal government adopted and chose this particular new tool. Drawing on a wide-ranging documentary record, I argue that this reform was the product of transnational lawmaking and the ongoing influence of Canada's international commitments to prohibit and punish foreign bribery. The article shows how international criticism of Canada's lacklustre anti–foreign bribery enforcement record catalyzed cross-national policy diffusion and learning from other states. This led Canada to adopt corporate diversion, which promised greater enforcement, and also led Canada to adopt a form of the practice with legislative and judicial limits that narrowed the chances of any company—including SNC-Lavalin—of obtaining a remediation agreement.

Perampasan Aset Korupsi Tanpa Pemidanaan Dalam Perspektif Hak Asasi Manusia

Confiscation of assets without conviction or NCB using the principle of presumption of guilt is an effective alternative in returning criminal assets, but faces challenges on the basis of human rights violations. This normative research discusses the problem of NCB's conflict with human rights violations. It was concluded that, the existing regulations have not regulated NCB but are in accordance with the constitution (Article 28H paragraph 4 and Article 28G paragraph 1 of the 1945 Indonesian Constitution), Article 29 paragraph (2) DUHAM / UDHR, Article 70 and Article 29 paragraph (1) UUHAM , European Human Rights Commission Decree 1986, and ICJ Decree 1959, where the state has the authority to control illegal assets or tainted with corruption. The UUPTPK still adheres to criminal forfeiture, depending on criminal wrongdoing, only applies if the perpetrator dies, does not apply if the criminal error is not proven, cannot seize the assets of no-owner and third party assets Its application is not against human rights if during the NCB process the third party is still given the opportunity to argue and is not done arbitrarily. The principle of presumption of guilt is aimed at assets, while the principle of presumption of innocence is directed at the perpetrator. Nor does it contradict the principle of ne bis in idem because civil suit and criminal prosecution are two different things. It is hoped that the Asset Confiscation Bill is corrected and promulgated, then regulates the NCB in the UUPTPK, improves MLA regulations for civil matters. The application must be carried out with extreme caution because it is vulnerable to human rights violations

Surveillance and the State: Body-Worn Cameras, Privacy and Democratic Policing

Body-worn cameras are increasingly being used by police forces and other government agencies across Australia to record interactions with suspects, witnesses and other members of the public. The cameras are thought to be capable of deterring officer misconduct, improving civilian behavior and capturing valuable evidence of criminal wrongdoing. Unfortunately, in Australia, little public or academic attention has been directed to the privacy implications of these devices. This is in contrast to the United States, where there is vigorous debate about the potential for body-worn cameras to intrude upon the privacy of vulnerable individuals and to contribute to the over-surveillance of minority communities. One promising response to privacy concerns in the United States has been to democratize the rules around body-worn cameras by involving the public in the formulation of police guidelines. This Comment suggests that Australia should similarly involve the public in body-worn camera policy formulation.