Principle Of Culpability Research Articles

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.

Schuld ohne Vergeltung

Based on Claus Roxin’s reflections on the concept of culpability in Criminal Law and its dissociation from the theory of retribution, this study aims to outline considerations for the discussion on the recognition of culpability without punishment. After showing how retributivists and social defence theorists arrive at a dilemma regarding the need to impose deserved punishment, the solution developed by Roxin, which allows for the refusal of punishment even when culpability is established, is presented: the state action of imposing punishment must be justified, on the one hand, not in a retributive way, but by preventive purposes, and, on the other hand, limited – and not grounded – by the principle of culpability (which does not have a retributive character; hence the unilateral view of the principle of culpability). Finally, the political-criminal and dogmatic consequences of Roxin’s position are examined, and the reception of the thesis as well as the criticism addressed against it are analysed

New court, same division: The Bemba case as an illustration of the continued confusion regarding the command responsibility doctrine

AbstractProsecutor v. Jean-Pierre Bemba Gombo was the International Criminal Court’s first case directly addressing the command responsibility doctrine. As the first permanent international criminal court who can exercise jurisdiction over a majority of the world’s nation states, its interpretation of the doctrine was potentially an important development in international criminal law and an opportunity to affirm the legal responsibility of commanders for their subordinates’ crimes. However, rather than providing a clear articulation of the doctrine and its scope, the Appeals Chamber was split. By a 3–2 majority, it reversed the Trial Chamber’s decision and the Appeals Chamber’s judges were sufficiently divided in their reasoning that they felt compelled to deliver separate opinions.A key disagreement within the doctrine is whether command responsibility is a mode of liability or a separate offence of dereliction of duty. This disagreement feeds into further contestation about the doctrine’s core elements, including the standard of fault necessary under its actus reus or mens rea elements. This article examines the judges’ reasoning in Bemba to illustrate that, despite decades of jurisprudence and academic debate, there is still confusion on these foundational elements. Instead of being ‘settled law’, the debate on command responsibility is still live. The article maintains that the current law supports a mode of liability interpretation but proposes that reclassifying the doctrine as a separate offence could resolve many of its tensions while observing the culpability principle, satisfying its justifications, and facilitating an adequately wide scope of accountability.

International Criminal Liability for Spreading Disinformation in the Context of Mass Atrocity

Abstract In the context of international crimes, falsehoods — ranging from selective reporting of facts, deliberate mischaracterization of events and adversaries, or even plain fabrication and lies — constitute a breeding ground in which incitement to commit violence can thrive. While disseminating such falsehoods does not constitute a direct call to commit physical violence, it nevertheless sows the seeds for mass atrocities. This article considers the outer limits of International Criminal Law (ICL) — defined by the principle of culpability — by enquiring whether campaigns of disinformation in the context of mass atrocities could ever give rise to individual responsibility. On the basis of the Fritzsche, Gvero and Mbarushimana cases, liability for disseminating disinformation might in principle be engaged before, during and even after the commission of such crimes. Recent concerns about the role of Facebook in Myanmar also pose the question whether social media companies or their personnel may be liable for amplifying disinformation campaigns. Yet, overall, these cases show the unease of ICL in criminalizing disinformation contributing to atrocity crimes.

The Juridical Criminal Construction of Corruption Extortion in Taxation Sector Related to State Financial Losses

The purpose of this article is to analyze the juridical construction of the criminal act of extortion corruption in the taxation sector. The method used is normative juridical, both in the narrow sense and in the broad sense. While the analysis orientation is in the form of a conceptual approach (Concept Approach) and a statutory approach (Statue Approach). The results of the research obtained are the primary indictment model, Article 12 letter e of the Anti-Corruption Law in conjunction with Article 55 paragraph (1) of the 1st Criminal Code. Subsidiary, Article 23 of the Anti-Corruption Law in conjunction with Article 421 in conjunction with Article 55 paragraph (1) of the 1st Criminal Code as a fulfillment of its legality principle. Meanwhile, the principle of culpability is in the form of the defendant's intentional coercion of the taxpayer through his role as a person to participate in committing a crime (medepleger).

Strict Liability and the Purpose of Punishment

The main argument of this article is that only a clear conception of the purpose of punishment can orient the debate about the positioning of the fault requirement and strict liability doctrine in criminal law. A categorization of the varieties of strict liability offenses, as well as an adequate model for normatively appraising the legitimacy of these deviations from the principle of culpability, should be based on a systematic analysis of criminal law’s role and function in society. As is argued, the original purpose of criminal law consists in the stabilization of norms by means of punishment. Taking up that finding, this work provides a detailed view of the distinct mechanism of placing blame, allowing for the presentation of a clear scheme for categorizing and appraising the variety of strict liability offenses. It is stated that offenses substantively deviating from the standard mechanism of placing blame can potentially result in over-punishment, which is dysfunctional and not justifiable. Properly placing blame is essential for the appropriate fulfillment of criminal law’s purpose in society. Therefore, the claim of the principle of culpability and critiques of strict liability doctrine find their basis not only in considerations of fairness, but also social necessity. By presenting a systematic categorization of strict liability offenses, this research offers a clear approach to a frequently discussed doctrine and establishes new arguments against its legitimacy.

(In)Compatible Visions of Justice? Personal Culpability and Gender Justice at the ICC

AbstractAlthough the International Criminal Court (ICC) has been heralded as a success story for gender justice, in practice prosecutions of sexual and gender-based crimes (SGBC) have often ended with acquittal at the court. Gender studies in international relations explain the lack of successful SGBC prosecutions by looking to the influence of older gender biases in international law, which preclude the successful implementation of the novel Rome Statute provisions criminalizing SGBC. This article suggests that “forgetting” the gender justice norm insufficiently explains the outcome of the ICC's SGBC prosecutions. The article argues that ICC judges “remembered” another norm of criminal justice, long forgotten in international trials – strict compliance with the personal culpability principle – which has resulted in tension between different visions of justice in the court's practice: delivering substantive justice for SGBC victims v. safeguarding the defendant's rights by upholding criminal law principles.

The Importance of Placing Blame: Criminal Law and the Stabilization of Norms

This article argues that the function of criminal law and of punishment consists in stabilizing norms by ascribing culpability. A theoretical and sociological examination of the mechanism of placing blame reveals that it consists of three elements. Blame is placed only if a capable addressee of norms is present (personhood), if this person was in the time of offending competent enough to question a norm (competence), and if this person actually communicated a negation of this norm (message). If these requirements are met, an act destabilizes the norm effectively, and punishment becomes necessary. The fault requirement therefore is crucial for fulfilling criminal law’s function, i.e. the stabilization of norms within society by means of punishment. In outlining the social importance of placing blame, this article establishes a basis for both a sociological approach to and a normative discussion regarding theories of punishment and of responsibility, and discloses that respecting the principle of culpability is not only an expression of justice but also one of social necessity.

Relative strict llability for the purpose of the constitutional administrative reform

In this article, the author performs an analysis of the constitutionality of the relative strict liability in the sanctioning administrative law, because although at the legal level the LPAG has enshrined the exceptionality of strict liability, however our Constitutional Court has always enshrined the prohibition of strict liability for being incompatible with the principle of culpability. In that sense, various points such as the Philosophy of Law, General Theory of Law, Range of Guilt Principle, Comparative Law, among other aspects, will be analyzed in order to be able to propose a constitutional reform in order to specify the sanctioning authority of the Administration Public and constitutionalize the exceptionality of the relative strict responsibility with its respective law of constitutional development.

Editorial do dossiê “Trânsito em julgado penal, princípio de legalidade, princípio de culpabilidade”

Que significado tem a expressão “mesmo fato” contida no art. 649 do código italiano de processo penal, que regulamenta o principio do ne bis in idem (proibição de segundo julgamento)? O fato objeto do segundo procedimento deve ser considerado em sua dimensão exclusivamente naturalística, independentemente de sua qualificação penal? Em que medida opera a proibição de segundo julgamento quando a lei tolera a duplicação do tratamento sancionatório, ou quando o ordenamento prevê para o mesmo fato, além de sanções penais, sanções civis ou administrativas de relevante gravidade? Em que medida se pode atribuir força executiva às sentenças irrevogáveis que tenham condenado o imputado por um fato não previsto pela lei como crime, ou que tenham infligido uma pena ilegal? Neste editorial, reflete-se sobre estas e similares temáticas – amplamente discutidas no ordenamento processual penal italiano –, com a intenção de estimular o debate sobre o tema da res iudicata, seja em uma perspectiva de caráter geral, seja, mais especificamente, em suas relações com os princípios de culpabilidade e legalidade penal.

RECONSTRUCTION OF THE LEGALITY PRINCIPLE IN PENAL LAW ENFORCEMENT FOR THE REALIZATION OF JUSTICE

<span>The legality principle is an important principle in the enforcement of penal law </span><span lang="IN">in addition to</span><span> the culpability principle. These two principles are a requirement that must be fulfilled by the person to be penalized. However, law enforcement officers in the Criminal Justice System often only pay attention to the formulation of the legality principle in Article 1 (1) of the Criminal Code (KUHP)</span><span lang="IN"> than the other principle that is culpability principle. </span><span>So that court decisions often do not reflect a sense of justice. This is due to the interpretation of the legality principle contained in Article 1 paragraph (1) of the Criminal Code (KUHP) as </span><span lang="IN">“</span><span>lex scripta</span><span lang="IN">”</span><span>, </span><span lang="IN">“</span><span>lex stricta</span><span lang="IN">”</span><span> and </span><span lang="IN">“</span><span>lex certa</span><span lang="IN">”</span><span> and </span><span lang="IN">also the unformulated </span><span>culpability principle in the Criminal Code (KUHP). Therefore, it is necessary to reconstruct the meaning of the legality principle so that it is not only understood formally, but </span><span lang="IN">materially by regarding </span><span>the living la</span><span lang="IN">w</span><span> referred to Pancasila as </span><span lang="IN">a </span><span>ground</span><span>norm and constitution of the UUD 1945, the legality principle is not interpreted </span><span lang="IN">as a</span><span> certainty of law </span><span lang="IN">but </span><span>interpreted as the principle of legal certainty. The law is not</span><span lang="IN"> only</span><span> interpreted </span><span lang="IN">as</span><span> a written law, but also an unwritten law, so it is expected to bring about a court decision in accordance with the sense of justice</span><span lang="IN">.</span><span>In law enforcement </span><span lang="IN">“</span><span>in abstracto</span><span lang="IN">”</span><span> implemented through formulation policy by penal reform in the formulation of a New Criminal Code (New KUHP), the principle of legality has been interpreted in material term that states that the source of law used by the Criminal Code is written law (Article 1) and unwritten law/ the living law (Article 2), also the culpability principle has been formulated explicitly (Article 38</span><span lang="IN">)</span><span>. Based </span><span lang="IN">“</span><span>in abstracto</span><span lang="IN">”</span><span> law enforcement is expected to be implemented </span><span lang="IN">“</span><span>in inconcreto</span><span lang="IN">” </span><span>law enforcement so as to realize court decision in accordance with the sense of community justice.</span>

Responsabilidad penal internacional: los nuevos escenarios dogmáticos

El objetivo de este estudio es establecer los alcances y límites de la responsabilidad penal internacional. Este concepto es la piedra angular del derecho penal internacional, del cual se desprenden otros principios generales y las normas del sistema del Estatuto de la Corte Penal Internacional. Se trata de un principio que surgió históricamente en la Carta y la sentencia de Núremberg. Asimismo, sus características lo distinguen de la responsabilidad estatal y de la responsabilidad penal nacional. En particular, es importante mencionar el carácter grupal de esta responsabilidad, así como el reconocimiento de individualidad de las personas que cometen crímenes internacionales, a través del principio de culpabilidad.

A Justification of Command Responsibility

In this article, I advance a culpability-based justification for command responsibility. Command responsibility has attracted powerful, principled criticisms, particularly that its controversial “should have known” fault standard may breach the culpability principle. Scholars are right to raise such questions, as a negligence-based mode of accessory liability seems to chafe against our analytical constructs. However, I argue, in three steps, that the intuition of justice underlying the doctrine is sound. An upshot of this analysis is that the “should have known” standard in the ICC Statute, rather than being shunned, should be embraced. While Tribunal jurisprudence shied away from criminal negligence due to culpability concerns, I argue that the “should have known” standard actually maps better onto personal culpability than the rival formulations developed by the Tribunals.

Situaciones actuales en la frontera del principio de culpabilidad

This paper analyzes the current situations which are located in the boundary of the culpability principle in the context of the limitative principles of the ius puniendi (as recognized in the continental legal tradition). For this purpose, we analyze this principle considering the actus reus and the mens rea requirements, so that it is possible to introduce (in these categories) most of the consequences that are attributed to that principle. Based on this, we analyze this principle in limit situations such as the corporate criminal responsibility, the responsibility due to the position (mainly by omission) in the international criminal law and the criminal law of corporations and other organizations; the complementary-to-punishment safety measures; and in the Youth Criminal Responsibility Act.

A (In)Adequação das Denúncias Genéricas na Tutela Penal do Meio Ambiente – Divergências à Luz do Garantismo Integral

Agressões cada vez mais constantes, justificadas, sobretudo, pelo liberalismo econômico, têm levado os ordenamentos jurídicos mais modernos a protegerem o meio ambiente, reconhecendo-o como verdadeiro direito fundamental de terceira geração. O direito penal do Estado Democrático de Direito, restrito à segurança dos bens jurídicos mais valiosos da sociedade, é, então, instado a tutelar o equilíbrio ecológico.

A Comparative Study of the Principles Governing Criminal Responsibility in the Major Legal Systems of the World (England, United States, Germany, France, Denmark, Russia, China, and Islamic legal tradition)

The purpose of this survey is to examine the underlying principles of criminal responsibility in selected common law and continental law jurisdictions as well as in the Islamic legal tradition through the lens of comparative law (legal jurisdictions of England, Canada, United States, Germany, France, Denmark, Russia and China are subject to the legal analysis). By conducting a comprehensive legal analysis of the concept of crime in selected legal jurisdictions, this study reveals the common legal features pertinent to the concept of crime that are shared by the major legal systems of the world. Particular attention has been given to the thorny and much debated area of the subjective element of a crime and the standards employed to demarcate between intentional and negligent conduct. Turning to comparative law as an invaluable tool of legal analysis, the study demonstrates that there are more common characteristics than originally anticipated regarding the concept of crime, as well as the basis of the principle of culpability in such major legal systems.

Is Strict Criminal Liability in the Grading of Offences Consistent with Retributive Desert?

Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate for such an actor? Should he be punished as harshly as an intentional or knowing killer? This paper offers a framework for analyzing these difficult questions. After rejecting a broad forfeiture justification for strict liability in grading, it articulates a more promising set of arguments, premised on the actor’s “change of normative position” by choosing to commit a crime. Three principles of culpability sometimes justify strict liability in grading: holistic culpability, attention to the degree of unjustifiability of the risk, and rough comparability in culpability. Strict liability in grading can be appropriate when the risk of committing the more serious crime (a) is a risk intrinsic to the less serious crime or (b) is minimally foreseeable. The article also addresses the relevance of moral luck, i.e. the principle that the fortuitous occurrence of a result or circumstance increases the actor’s just deserts. Even if moral luck is recognized, it cannot fully justify strict liability in grading.

Human Dignity of “Offenders”: A Limitation on Substantive Criminal Law

The paper argues for attaching a significant role to the dignity of offenders as a limitation on the scope of substantive criminal law. Three different aspects of human dignity are discussed. Human dignity is closely connected with the principle of culpability. Respecting the dignity of offenders requires that we assign criminal liability according to the actual attitudes of the offenders towards the interests protected by the offence. The doctrine of natural and probable consequence of complicity, which allows us to assign liability for mens rea offenses to a negligent offender, violates the dignity of the offender; it treats the incautious offender as if she had willfully expressed disrespect towards the protected interest. The human dignity core of privacy is invaded by criminalizing the private possession of child pornography. By extending the prohibition of the creation, sale and distribution of child pornography to the private possession of pornography, the State attempts to control the way the individual expresses an essential part of the self—his sexual fantasies—within himself. Dignity demands that our actions convey an attitude of respect towards human beings. The expressive meaning of disrespect is culture-dependent. The historical association with totalitarian regimes explains our reluctance to impose a legal duty to report past crime: the individual who is legally required to turn a suspect into the police is viewed as an “informant.”

How Command Responsibility Got So Complicated: A Culpability Contradiction, Its Obfuscation, and an Elegant Solution

The literature on command responsibility is extensive and is rapidly growing more complex. In this article, I argue that command responsibility can be much simpler than it seems.I focus on a single puzzle, a puzzle hidden in plain sight. The puzzle is that the Tribunal jurisprudence uses command responsibility to convict persons without causal contribution to the crime, while also recognizing a culpability principle that requires causal contribution. This stark contradiction has been obscured by many arguments in the jurisprudence and discourse. Indeed, many readers will raise a host of arguments to deny the contradiction I just described. I will dissect the major arguments to demonstrate that the contradiction does indeed exist. I argue that Tribunal jurisprudence took an early wrong turn in concluding that the “failure to punish” branch of command responsibility is irreconcilable with a contribution requirement. This led to a rejection of causal contribution. Subsequent efforts to deny, avoid or resolve the resulting contradiction with the culpability principle have spawned many inconsistent, complex and convoluted claims about command responsibility. These include the descriptions of command responsibility as ‘sui generis’, as hybrid, as variegated, as responsibility for-the-acts-but-not-for-the-acts, as neither-mode-nor-offence or as sometimes-mode-sometimes-offence. However, if we revisit the first misstep, a simple and elegant solution is available. Command responsibility is a mode of accessory liability and requires causal contribution. I draw on scholarship from criminal law theory to explore the parameters of the contribution requirement.

The Criminal Justice System's Disparate Treatment of Individuals with Fetal Alcohol Spectrum Disorders in Cases Involving Sexual Activity

Individuals with Fetal Alcohol Spectrum Disorders (FASD) are treated differently by the criminal justice system in sex offense prosecutions, depending upon whether they are categorized as victims or perpetrators. The primary and secondary disabilities associated with prenatal alcohol exposure are often taken into consideration when assessing the capacity of a victim to consent to sexual activity, but generally not considered in determining whether a defendant had the mens rea to engage in criminal sexual conduct. This article traces the historical underpinnings of the mens rea requirement in criminal law and discusses its elimination in most prosecutions for statutory rape. The article recommends that additional research be conducted to determine the impact of prenatal alcohol exposure on an individual's capacity to consent to sexual activity. It suggests that fundamental principles of culpability require an examination of how FASD impacts an individual's capacity to engage in meaningful, responsible, decision making about sexual activity before criminal sanctions are imposed.