Form Of Criminal Liability Research Articles

Смягчающие ответственность обстоятельства в уголовном праве: некоторые проблемные вопросы

In the doctrine of criminal law, there has not been an equable understanding of circumstances mitigating punishment, their legal nature, and functional purpose. The author believes that the current name of a mitigating situation in the Criminal Code of the Russian Federation as a situation mitigating only punishment does not reflect its purpose, since these situations are taken into account by the court when choosing other forms of criminal liability. The conclusion about the need to designate these circumstances as circumstances mitigating criminal liability is substantiated. The following definitions are proposed: "Circumstances that reduce criminal liability are factors that reduce the degree of public danger of a crime and (or) the identity of the perpetrator and, thus, affect the mitigation of responsibility by differentiating or individualizing it, or the impact on criminal liability is due to humanistic considerations". The author believes that circumstances mitigating punishment are provided both as elements of a crime and as circumstances outside the scope of the crime provided for in the list of mitigating circumstances (Article 61 of the Criminal Code of the Russian Federation). What both of these groups of mitigating circumstances have in common is that they influence liability in the direction of mitigating it. However, the functional significance of the circumstances provided for in specific crimes and those outside the crimes is different. Mitigation of the situation, which is provided as a sign of a crime, is a means of delineating criminal liability, and the most common form of its implementation is criminal punishment. The functional purpose of mitigating the consequences of situations that go beyond the derivatives of the element of crime is to facilitate the individualization of punishment for the person who committed the crime. The theory of criminal law vaguely evaluates the rules of sentencing, which are included in article 62 of the Criminal Code of the Russian Federation, in the presence of certain mitigating circumstances. The article criticizes the position of researchers who believe that the mitigation of punishment provided for in Article 62 of the Criminal Code of the Russian Federation has not been carried out sufficiently. The author considers inappropriate to extend the norm of part 1 of Article 62 of the Criminal Code of the Russian Federation to all circumstances of mitigating and exclude an indication of the absence of aggravating circumstances. The author believes that the prescription of part 4 of Article 62 of the Criminal Code of the Russian Federation, regulating the imposition of punishment in the presence of pre-trial cooperation agreements, does not correspond to the nature and degree of public danger of the crime, in which the punishment in the form of death penalty and life imprisonment are unjustifiably lenient. In the author's opinion, it would be sufficient to prohibit the use of the death penalty and life imprisonment in the presence of pre-trial cooperation agreements. Excessive liberalization of special rules aimed at mitigating punishment contradicts the principle of sentencing and the goals facing criminal punishment.

Pertanggungjawaban Pidana Terhadap Pelaku Pengguntingan Bendera Negara Republik Indonesia

Introduction: The crime of insulting the Red and White flag in Karawang, West Java and Malasya, the flag with a hammer picture at Hassanudin University and the flag brushed with a Water Closet (WC) brush violates the provisions of Article 66 of the Law of the Republic of Indonesia Number 24 of 2009 in conjunction with Article 24 Letter a Law Number 24 Year 2009Purposes of the Research: Analyzing and explaining whether the perpetrators of insulting the flag can be held criminally responsible and forms of criminal responsibility for the act of insulting the red and white flag.Methods of the Research: It is normative juridical, using a legal, conceptual and case approach with primary and secondary legal materials and will be analyzed qualitatively.Results of the Research: Criminal liability from the first to the third case fulfills the five elements of responsibility, namely, there are perpetrators of criminal acts; there is an action; There is a mistake; capable of being responsible and against the law. Furthermore, the fourth case cannot be held accountable because the subject who committed the crime has a mental disorder that is not in accordance with the elements of criminal responsibility in Article 44 of the Criminal Code. The form of criminal liability in the first to third cases is individual, meaning that individual criminal responsibility is the form embedded in the case.

Sport management in the context of criminal liability for corruption

The problem of corruption in the management of sports organizations has long since ceased to have an exclusively national character, becoming a global problem, particularly at the level of federal and international sports organizations. It is possible to state a specific limitation in studying problematic issues of criminal responsibility for corruption crimes in sports and the insufficiency of the development of certain aspects of establishing accountability for the specified offenses.This study aimed to identify the effectiveness of criminal legal measures in the form of criminal liability in the fight against corruption crimes in the management of sports organizations. The following methods were used in this study: information-analytical method; system approach method; method of comparison and comparison; method of descriptive analysis; method of pragmatic approach; forecasting method. According to the research results, the author's concept of corruption in the management of sports organizations was proposed. It has been established that criminal liability for corruption crimes in the field of management of sports organizations is an effective but insufficient measure to combat this phenomenon. This is evidenced by scientific studies of the last 5 years regarding the fight against match-fixing in certain types of sports in certain countries, which indicates the insufficient effectiveness of establishing criminal liability for corruption crimes in the management of sports organizations. There was a need to develop new, more effective measures to prevent and combat corruption crimes in the field of sports management. At the international level, it is necessary to create the Instruction on tackling corruption in the management of sports organizations, which will include measures and directions for combating and preventing corruption in sports, including improving criminal liability for these crimes. This study opens up the prospects for further research in the fight against corruption in the field of sports, in particular, ensuring control over the activities of national and international sports organizations by improving both the legislative framework and the practical implementation of its provisions in the field of regulation and management in the sports field. Keywords: Corruption crimes, bribery, criminal legislation, sport management, match-fixing, doping, tricks.

PROTECTION OF SOCIAL VALUES AND RELATIONS PROTECTED BY CRIMINAL LAW

This article deals with the particular aspects regarding the protection that criminal law norms grant to social values and relations, which is precisely the object of criminal law. As the main instrument of the criminal policy, the criminal law aims to defend the state and all the people who are at a given moment in the national territory, against the criminal phenomenon.A condition of the existence of human society was and is the need to defend social values through a system of relationships formed between members of society in such a way as to succeed in their achievement and normal evolution. The system for the defense of social values has a binding force against people who carry out dangerous actions for society and defines the crime, the forms of criminal liability and the sanctions that are applied when crimes are committed by violating the criminal rules.How is the protection provided by the criminal law with regard to social values achieved?By means of the two essential requirements that the criminal rules claim: firstly, the requirement required of all persons who are at a given time in the territory to which the law has its applicability and who are its recipients. All of them are obliged to conform their conduct to the requirements that the criminal law provides. And last but not least, the state bodies that must ensure criminal liability when the criminal law has been violated and crimes have been committed. Through the rules of the criminal law, the values and social relations that are formed around these values are promoted and protected. In this way, the protection of society in general is achieved. Criminal law criminalizes crimes, which are the most serious social acts because they affect the most important social values.

Pertanggungjawaban Pidana bagi Anak Pengendara Mobil yang Menyebabkan Kematian Pengguna Jalan (Studi Putusan No. 26/PID.Sus-Anak/2019/PN.Jayapura)

Legal responsibility between adults and children is certainly different. Children violate legal provisions, they must still be held legally responsible by taking into account the best interests of the child. Diversion is the right treatment to be applied to children as a crime in accordance. In the case in Decision No. 26/PID.Sus-Anak/2019/PN.Jayapura there was a child as the perpetrator of a traffic accident, resulting in the victim's death. The judge instead imposed a sentence of 1 year against the perpetrator. Based on this, of course it becomes a legal problem and should be explored regarding the judge's consideration in the decision. The appropriate form of criminal liability should also be explored. This type of research is normative juridical, with a statutory, conceptual, and regulatory approach, and uses the literature study method. The results showed that the judge handed down the decision based on the consideration that the perpetrator's actions complied with Article 310 Paragraph (4) UU LLAJ. The form of criminal responsibility for children as perpetrators is to pay attention to the UU SPPA, which is in the form of diversion in accordance with the UUPA. Restorative values are put forward in handling the case, for the sake of the child's psyche and survival, losses that can still be handled properly, and also minimize the emergence of community or other criminal acts committed by children as perpetrators which is certainly disturbing. Parents have an important role in this.

Зміст і форми кримінальної відповідальності

The article argues the content of criminal liability is formed by its mandatory and optional features. The obligatory features are: a) conviction of the subject of the criminal offense; b) a criminal record for such a conviction; c) restriction or deprivation of the rights and freedoms of the convict due to his criminal record. The optional features are: a) punishment or its alternatives; b) additional restrictions on the status of the convict due to punishment or its alternatives. The content of criminal liability determined its forms. The article distinguishes two of the forms: 1) conviction without sentencing; 2) conviction with sentencing. Each of them is divided into a number of species and varieties. In contrast to the traditional approach, in theory and practice, priority is given to less severe forms of criminal liability (convictions without sentencing). This will testify to the implementation of the humanism principle of criminal liability not only literally but also in deeds. There is no reason to recognize the so-called release from it as a form of criminal liability. On its application, the court waives its right to convict a person, and so without conviction criminal liability is impossible. Thus, exemption from criminal liability is a form of other means of criminal legal regulation, and not a manifestation of liability. The definition of the content and forms of criminal liability should be based on its official understanding, reflected in the decision of the Constitutional Court of Ukraine on parliamentary immunity. In this case, a criminal record should be recognized as a mandatory feature of the content of criminal liability, and not a legal consequence of the latter. Key words: criminal liability, content of criminal liability, mandatory features, optional features, forms of criminal liability.

Criminal Liability For Dissociative Identity Disorder That Doing Crime Of Murder

In this thesis aims to determine the criminal liability against sufferers of dissociative idenity disorder who commit the crime of murder. This study uses normative juridical methods, namely research conducted by examining library materials or secondary data consisting of primary legal materials, secondary legal materials, and tertiary legal materials. Sources of data obtained from literature books, existing research and applicable legislation. The results of the study concluded that a person with dissociative identity disorder could be a convicted of a criminal act of murder committed because he had fulfilled the element of criminal liability. The form of criminal liability is to apply the concept of accountability in strict liability so that the perpetrators can be sentenced to imprisonment in accordance with threat in artitcle 338 of the Criminal Code governing murder.
 Keywords: Criminal Liability, Dissociative Identity Disorder, Murder

PERTANGGUNGJAWABAN PIDANA DIREKTUR PERSEROAN TERBATAS DALAM TINDAK PIDANA KORUPSI PROYEK TERBATAS PEMBANGUNAN RUMAH SAKIT (STUDI PUTUSAN NO.15 /PID.SUS-TPK/2018/PN.MDN)

The existence of corporations in the Criminal Code provisions that currently apply has not clearly stipulated corporations as perpetrators of crime because only Article 59 of the Criminal Code still regulates corporate provisions. However, the provisions of regulations outside the Criminal Code have clearly regulated the existence of corporations as legal subjects such as Law Number 40 of 2007 concerning Limited Liability Companies. Corporate criminal crime in its development has been widespread in people's lives, this can be done by the management of the corporation itself. The form of corporation in its development is in the form of legal entity and non-legal entity, one of which is a legal entity is a Limited Liability Company, in Article 82 of the Company Law Director is the management of the company, the Director represents the Limited Liability Company in and out of Article 82 of the Company Law. As for the problem in this research is how the criminal responsibility of the Director of a Limited Company in a criminal act of corruption in a hospital development project (study of decision number 15 / Pid.Sus-TPK / 2018 / PN.Mdn)The legal research method used in this study is a type of normative legal research that is research used by searching or analyzing and analyzing library materials, one of which is Decision No. 15 / Pid.Sus-TPK / 2018 / PN.Mdn. Then based on the results of research on Decision No. 15 / Pid.Sus-TPK / 2018 / PN.Mdn it can be concluded that based on the deeds and errors of the Director of PT. Care Indonusa has fulfilled the element of error, criminal liability requirements and found no excuses for excuses or justifications, so that criminal liability can be requested from the Director of a Limited Liability Company. Based on the above, the judge sentenced him to 5 (five) years in prison as a form of criminal liability to the Director of PT. Care Indonusa.

УСЛОВНОЕ ОСУЖДЕНИЕ И ПОМЕЩЕНИЕ В СПЕЦИАЛЬНОЕ УЧЕБНО-ВОСПИТАТЕЛЬНОЕ УЧРЕЖДЕНИЕ: ОСОБЕННОСТИ ПРИМЕНЕНИЯ И СООТНОШЕНИЯ В КОНТЕКСТЕ СИСТЕМНОСТИ УГОЛОВНОГО ПРАВА

The systematic nature of criminal law forms the main features of the industry, namely: normativity, universalism, that is, the absence of casuistry and obligation. The strict consistency of both the entire industry and its individual institutions allows avoiding the redundancy of criminal law regulation, clearly determining the legal status of a person in conflict with the law. However, the norms of the Criminal Code of the Russian Federation do not always meet these requirements due to defects in legal technology, and, sometimes, gaps in regulation. In practice, the courts, in an effort to minimize the above defects, sometimes resort to excessive criminal law regulation; as an example, the article gives the ratio of the application of suspended sentence and placement in a special educational institution of a closed type. The article analyzes sentences to minors in which Art. 73 and Part 2 of Art. 92 of the Criminal Code of the Russian Federation were simultaneously applied in one sentence for the same act. For a comprehensive study, the article analyzed sentences to minors held in special educational institutions of a closed type for the period from 2014 to 2020, criminal statistics posted on the website of the Judicial Department of the Supreme Court of the Russian Federation, as well as various points of view of leading legal scholars. The research methods of static observation, analysis and synthesis, the system-structural method, as well as a number of factographic methods, were used. The study develops from the general to the specific, i.e., first, systematicity is analyzed as a property of the branch of criminal law and then as a property of a legal institution, namely, the release of minors from criminal liability. Consistency as a property of the institution of exemption from criminal punishment presupposes the impossibility of intersecting elements within one institution. Special attention is paid to the legal nature of suspended sentence as the most common punishment measure for minors, and its effectiveness. Then the cases of the simultaneous application of Art. 73 and Part 2 of Art. 92 of the Criminal Code of the Russian Federation are analyzed. In the course of the study, the author examines the features of suspended sentence and placement in a special educational and educational institution of a closed type, compares these two forms of criminal liability, and highlights the differences. The conclusion is that the simultaneous placement in a special educational institution of a closed type and suspended sentence are a redundancy of criminal law regulation. The article raises the question of the need to improve the Criminal Code in terms of the development of placement in a special educational and educational institution of a closed type as a type of exemption from criminal punishment: the court is to be provided with the opportunity to control the juvenile offender’s correctional process.

Special Confiscation as a Measure of Criminal Law under Ukrainian Legislation

The article is devoted to the study of special confiscation as a measure of criminal law, other than punishment, which was introduced into the legislation of Ukraine on the way of transformation and reformation of the institution of confiscation of property. The study found that the emergence of special confiscation was dictated primarily by Ukraine's choice of European integration and the need to fulfil its obligations to bring domestic criminal law in line with European standards and international legal practice in combating crime. 
 
 The article notes that today the confiscation of property remains one of the most controversial measures of criminal law in both domestic and foreign law. Traditionally, in the criminal law of Ukraine, this measure played the role of one of the types of punishment. However, at the present stage of development of criminal law, the legal regulation of forced confiscation of property has undergone significant changes. Currently, this is not only a form of criminal liability, but also different from the latter, another measure of criminal law, which manifests itself in three forms, namely as: 1) special confiscation of property of an individual; 2) confiscation of property of a legal entity; 3) special confiscation of property in respect of a legal entity.
 
 The article analyzes the provisions of the current criminal legislation of Ukraine on the regulation of special confiscation as another measure of criminal law and considers the main problematic aspects of this institution in the doctrine of criminal law of Ukraine. 
 
 The correlation between general confiscation and special confiscation was revealed in the article. The conclusion was drawn that these two types of confiscations are different in legal nature. Confiscation of property is a type of additional punishment, and special confiscation of property is an independent type of other measures of a criminal law nature. The main difference between the investigated institutions is that their application seizes property of different nature, namely: the subject of confiscation of property is property that belongs to the convict on the right of ownership, and in the case of special confiscation, property related to the commission of a crime is subject to confiscation.

Pertanggungjawaban Pidana Terhadap Prajurit Tni Yang Menunggu Putusan Berkekuatan Hukum Tetap

Abstract— The purpose of this study is to examine the form of criminal liability for members of the TNI who carry out Military Criminal Acts and find out about the process of resolving military criminal cases against the TNI who are waiting for a court decision with permanent legal force. The research method used is a type of normative research with a conceptual approach, legislation, comparative and case approaches. Based on research results show that the form of criminal liability for TNI soldiers who commit crimes, namely: (a) The crime of desertion, can be sentenced to death if carried out by soldiers who crossed to the enemy during the war, and imprisonment if carried out in peace; (b) The crime of insubordination, can be sentenced to prison for more than 1 (one) year; (c) A criminal offense is absent, can be sentenced to imprisonment for more than 1 (one) year, but if the absent is not more than 3 (three) days can be disciplined. While the settlement starts from the investigation, examination until the decision based on the applicable regulations. Keywords—: Responsibility; TNI Soldiers; Military Criminal Society.

Problematic issues of Criminal and Criminal Procedural Legislation in Applying Coercive Medical Measures

The author of the article proves that the possibility for a court to apply coercive medical measures to an insane person who has committed a socially dangerous act is regulated by the norms of the law on criminal liability and the provisions of the criminal procedural legislation of Ukraine. Their implementation is carried out in the interaction of substantive and procedural law, in particular in certain forms of criminal liability and in measures that are not covered by criminal liability, but are called criminal coercion, and is resolved through individual procedural institutions. The scientific positions of certain scholars and representatives of scientific schools on these issues were studied. On their basis the author expressed a number of own conclusions on problematic and debatable areas and issues raised in the article. Based on the results, the author of the article made some conclusions about the application of coercive medical measures: establishing the fact of committing a criminal offense by a specific person; after a forensic psychiatric examination to determine that such a person is mentally ill and according to its results cannot be sane; such a person is socially dangerous to society and must be isolated for the period of involuntary treatment. In the absence of at least one of the elements of the specified structure, coercive medical measures cannot be applied. The author made generalization, based on the initial provision that the main component of criminal liability is the conviction of a person, the adoption of a court conviction, which provides a legal assessment of the act and the specific person who committed it. Comparison of the current criminal and criminal procedural legislation provides an opportunity to assess coercive medical measures by coercive measures of a criminal law nature, as those used in criminal law relations against persons who committed a socially dangerous act, are ill with certain types of mental illness at the moment of the commission of a crime. The tendency of modern development of the direction in criminal law about delimitation of concepts and essence of "release of the person from criminal liability" and "punishment" from "exclusion of such responsibility" and existence and allocation at the same time of other direction - "criminal coercion" is distinguished. At the same time, the conclusions concerning persons who fell ill with a mental illness after the commission of a crime or while serving a sentence in places of imprisonment that relate to the procedural mechanism of temporary suspension of the imposed criminal punishment, were singled out. The results of the study of criminal and criminal procedural legislation on the application of coercive medical measures confirm and present the mechanism of interaction and implementation of substantive and procedural legislation to ensure the objectives of criminal proceedings under the Art. 1 of the Criminal Code and the Art. 2 of the Criminal Procedural Code of Ukraine.

Criminal Accountability for Corruption Actors in the Form of Concursus Realist

The purpose of this study is to describe and analyze the criminal liability arrangements for the perpetrators of corruption in the form of concurrent acts, finding juridical reasons to the extent to which corruption in the form of concurrent acts can be justified. This research method uses a qualitative approach with normative juridical law design. Data collection techniques using library research Subjects library research law faculty of Semarang State University. Data analysis techniques: (1) presentation, (2) data reduction, and (3) collection and verification. The results of the study: (1) the form of criminal liability from the perpetrators of corruption in the form of a joint act is to follow the criminal procedure in the Criminal Code by dropping the absorption system which is made worse by the regulation contained in the Constitutional Court's decision in the results of the criminal chamber meeting of the Supreme Court of the Republic of Indonesia Tangerang No 10 concerning the application of concursus teachings precisely in the parallel act of corruption. Conclusions of the study that the doctrine of concursus results of the criminal chamber meeting of the Supreme Court of the Republic of Indonesia Tangerang has a legal basis that serves as a guideline or legal basis so that the action does not go outside the lines of statutory provisions in the implementation of decision making in imposing penalties for the perpetrators of acts corruption in the form of a parallel act.

ЗАРУБІЖНИЙ ДОСВІД ЗАСТОСУВАННЯ СУДОВОГО ШТРАФУ ЯК ІНШОГО ЗАХОДУ КРИМІНАЛЬНО-ПРАВОВОГО ХАРАКТЕРУ

The article analyzes the provisions of the current Criminal Codes of the countries of the Romano-Germanic legal family on the conditions and procedure for applying a court fine as another measure of a criminal-legal nature. The article considers the normative possibility of exemption from criminal liability due to certain procedural circumstances. It is concluded that within the framework of modern criminal law of a small number of individual states, there are two main types of exemption of a person from criminal liability by paying him a judicial or a similar fine. It is concluded that the integral norms of modern foreign criminal law governing the application of a court fine provide for the possibility of practical implementation of: a) the principle of the minimum application of a particular criminal punishment; b) the principle of maximum possible assistance for an alternative, “non-criminal” outcome of the criminal proceedings. The main purpose and result of the application of a court fine is to release one or another offender from criminal liability in general and release him from one or another type of criminal punishment. The procedural part of the application of a court fine is the decriminalization of one or another act of the offender, which is carried out on the basis of the court taking into account the severity of the offense committed, the degree of preliminary law-abidingness of the offender, as well as the previous social, moral, material and other actions of the offender aimed at compensating his guilt before the victim and compensation by the offender for the harm caused by the crime. Within the framework of modern criminal law of a small number of individual states, there are two main substantive types of normative release of the offender from criminal liability by paying him a court or a similar fine: a) the application by the court of the court fine itself; and b) the application by the court of a fine associated with a change in the form of criminal liability.

Proses Penyidikan Dalam Penyelesaian Tindak Pidana Kekerasan Dalam Rumah Tangga Yang Dilakukan Oleh TNI-AD (Studi Di Pengadilan Militer I-02 Medan)

Domestic violence perpetrated by individual soldiers not only harmed their families but also caused losses to the soldiers themselves both morally and materially. Proving a criminal offense, the process of investigation, prosecution, and examination in a court of law in a case of a crime of domestic violence is carried out according to the provisions of the applicable criminal procedure law. This type of research is normative law that is analyzing a decision made by combining primary data legal materials with secondary data obtained in the field with interviews. The investigation process in which the Military Police conduct an investigation of suspects with military status and refers to Law Number 31 of 1997 concerning the Military Criminal Code where eventually the case files will be submitted to military prosecutors for trial in military court. There are 4 stages in the process of resolving cases in the military court in the investigation stage, the prosecution stage, the hearing stage in the trial, the decision implementation stage. The form of criminal liability for military members who commist crimes is regulated in Article 6 of the Military Criminal Code.

UK airport operators’ liability for corporate manslaughter as a result of terrorism: Will security management systems provide protection for the sector?

Corporate governance broadly refers to the mechanisms, relations and processes by which a corporation is controlled and directed; it involves balancing the many interests of a corporation’s stakeholders.1 Since the financial crisis of 2008, much of the literature dealing with corporate governance has focused on the financial welfare of its stakeholders. Following 9/11, however, civil aviation corporations have also had to take account of the physical welfare of their stakeholders when assessing the risks of terrorist attacks. After the recent attacks at Brussels and Istanbul airports, there is little evidence that significant changes have occurred to secure safety in the public areas of airports in the UK, known as ‘landside’,2 leading to the check-in gates. This raises the question of whether, should the risk of terrorist attacks materialise and lead to the death of victims, there can be criminal liability on the part of airport operators. This paper will consider the possibility of one form of criminal liability, corporate manslaughter, for airport operators who operate under a risk assessment model known as security management systems (SeMS). In this paper, the following example will be used to highlight that potential possibility. An airport in the UK has adopted SeMS but the individual senior manager responsible devolves the responsibility of implementation to a junior manager who fails to take additional precautions despite recent intelligence reports that suggest the likely imminence of a Brussels Airport–style attack in the UK. The attack is carried out by an airport employee, who had not been properly vetted due to staff shortages. In the attack 7 members of the public are killed and 50 are injured. The police and owners of the airport assumed all employees had been security vetted. The Crown Prosecution Service (CPS) considers the liability of the airport operator when it becomes clear the attack could have been prevented.

Criminal sanctions for legal enties: An instrument of crime control

Although contemporary criminal law accepts the system of subjective criminal liability for a committed crime, numerous European legal documents as well as criminal laws, especially those that have been adopted lately, envisage exceptions from this system. Thus, a new form of criminal liability is being introduced: objective liability based on the causation. One of the forms of objective liability is the criminal liability of legal entities, which has been considered disputable for a long time. Obviously, legal entities cannot be held accountable for all types of criminal offences. They cannot be held liable on the grounds of legal provisions regarding mental competence and culpability (as the elements of subjective criminal liability), nor can they be imposed all types of criminal sanctions recognized in criminal legislation in general. In their new or revised criminal legislation, many countries have recognized and inagurated the objective criminal liability of legal persons for committed criminal offences alongside with the predominant system of subjective liability (based on the perpetrator's mental competence and culpability). It is indisputable that some legal entities (such as state authorities) cannot be prosecuted and held liable in criminal proceedings; consequently, there are some exemptions from criminal liability (particularly when it comes to the state and state bodies), but it does not exclude criminal liability of responsible officials (natural persons) for causing the consequences of a criminal offence. Due to the specific character of legal and contractual capacity of legal entities, law in general and criminal legislations in particular prescribe special legal grounds for establishing criminal liability of legal entities, which differ from the subjective liability of a natural person (perceived as a conscious and reasonable human being acting on his/her own free will) where the consequence of a criminal offence is a result of one's own conduct embodied either in the commission of a criminal offence or in the omission to act. Therefore, contemporary criminal laws have determined special types of criminal sanctions, such as: punishment, security measures, conditional (suspended) sentence and confiscation of material gain obtained by comitting the criminal offence, as well as the instruments, proceedings and conditions under which they may be imposed. Within the framework of the forthcoming reform of the entire penal legislation in the Republic of Serbia, the Serbian legislator may use the legal solutions envisaged in the analyzed documents and criminal legislations as a solid model for implementing the international standards in the field of criminal liability of legal entities. Hence, this paper discusses the particularities governing the application of criminal sanctions for legal entities in the Republic of Serbia, particularly as an instrument of crime control.

Charles Lindbergh, Caryl Chessman, and the Exception Proving the (Potentially Waning) Rule of Broad Prosecutorial Discretion

Broad prosecutorial discretion is generally accepted by courts and legislatures and is widely blamed by academics for the explosion in the American prison population. Statutory revisions and judicial interpretations of kidnapping law, however, provide an exception to the deference generally given to prosecutors. The very high-profile execution of Caryl Chessman quite publicly raised the question of whether kidnapping, then a capital crime in California, was defined so broadly as to permit a prosecutor to obtain the death penalty for a number of non-capital crimes, such as robbery and rape. Chessman’s case raised widespread concern about the unchecked power of prosecutors and prompted reform of the specific law that led to his execution – kidnapping. For roughly the past two decades, academics have renewed concerns about unlimited prosecutorial discretion, but no single case has drawn attention to the cause. The more generalized problem in our prison system, however, has not escaped the public’s notice. This country’s epidemic of incarceration has raised considerable alarm, something academics attribute to the broad scope of criminal laws empowering prosecutors to seek prison sentences of ever-increasing lengths. This last term, in two virtually unnoticed cases, the Supreme Court appeared to take up the invitation of the academy to rein in the power of prosecutors by limiting the scope of traditional forms of criminal liability. Whether the Supreme Court’s recent incursion into traditionally state doctrines of criminal liability is a bell weather event or not remains to be seen, but the Court has traditionally avoided considering long-existing doctrines of criminal law and the academic criticism of criminal law’s broad scope extends far beyond the aspects of complicity and felony murder the Court considered last term.

Are Migratory Birds Extending Environmental Criminal Liability

Environmental statutes frequently include criminal provisions as a means of enforcing their regulations. However, these provisions often include little if no mens rea requirement. As with any form of criminal liability that approaches strict liability, courts must therefore somehow insure that convictions satisfy constitutional due process concerns. During the last century, and accompanying the rise of regulatory statutes, the court developed the public welfare doctrine as a method of justifying the lack of a mens rea requirement for certain types of crimes. These crimes, known as public welfare offenses, involve regulations so potentially dangerous to public health and safety that the court was willing to presume that the allegedly criminal actor had knowledge of his wrong doing, thus satisfying due process. United States v. Apollo Energies, Inc.’s, interpretation of the Migratory Bird Treaty Act, demonstrates another justification for a lack of a mens rea requirement. However, for a criminal offense that did not fall under the coverage of the public welfare doctrine: an offense that does not affect the public health, and which features a causation element. To satisfy due process, the Tenth Circuit borrows several elements embedded in the public welfare doctrine: foreseeability of regulation and foreseeability of harm. The use of these elements, and the Tenth Circuit’s willingness to apply them outside of the public welfare setting, illuminates when courts might find liability for future environmental regulatory crimes.

Problematyka charakteru prawnego odpowiedzialności podmiotów zbiorowych za czyny zabronione pod groźbą kary w prawie polskim

Corporate liability for off ences was introduced to the Polish law by the Convention on the Protection of the European Communities ´ Financial Interests of the 26 July 1995 and also by the First and the Second Protocol to the Convention. The Convention imposed on the Member States the obligation to apply certain measures to establish criminal liability of a person having a leading position in the legal person for the frauds against the European Communities financial interests. In the second protocol, however, there is a requirement to introduce corporate liability for such off ences committed in the corporate interest by the person who has a power of representation of the legal person, an authority to take decisions on behalf of the legal person or an authority to exercise control within the legal person. None of the mentioned acts, however, involves the provision indicating the form of corporate liability. In the Polish law there was adopted the Act of the 28 October 2002 called “ The Liability of Collective Entities for Off ences ” . The form of the liability established in this statute was controversial from the early beginning. There are certain points which allows to accept the idea of criminal liability of collective entities. On the other hand, there are also reasons for which it is possible to claim that corporate liability established in the Polish law is a new form of liability, only similar to criminal liability. Criminal liability of legal persons is very well known in criminal law area. Historically, the fi rst introduced model of corporate liability was so called “ vicarious liability ” . In the consequence, the legal person was sanctioned because a person with whom it had a bond, committed an off ence. The other form of criminal liability was “ direct liability ” also called “ the theory of controlling off icer ” . The point of the mentioned theory was to accept the acts of a person who was in the structure of corporation as the acts of the corporation itself. The third conception was the aggregation doctrine, also known as “ collective knowledge ” or “ aggregation knowledge ” . The meaning of that doctrine was an assumption that the actions taken by people who were the members of corporation , might be combined in one act of the corporation. Criminal liability of legal persons was introduced also in the Polish law by the Act of Cartel Agreements of the 13 July 1939. It is beyond a discussion that the Act of the 28 October 2002 is a piece of repressive legislation. It is strongly emphasised that criminal nature of the mentioned statue results from the Constitution. Constitutional meaning of criminal liability, however, is not the same as in Criminal Code. The another point might be the jurisprudence of the European Court of Human Rights, which accepts a wider meaning of criminal case. On the other hand, in the view of the mentioned statue, the corporation does not commit itself an act which is forbidden as an off ence but the responsibility of the corporation is a result of the act committed by its member. Thus, it is secondary liability. It is also claimed that “ mens rea ” and “ actus reus ” known in criminal law can not be attributed to corporate liability. Therefore it is justifi ed to say that there has been created a new form of liability. The similar approach seems to present the Constitutional Tribunal in the verdict of 3 November 2004, Case K 18/03. Nevertheless, some authors claim that the discussed statute has a criminal nature and it could be assessed as a pieces of Criminal Law sensu largo . Others point out that such institutions used in the statue as culpa in eliegndo or culpa in custodiendo contradict its criminal nature. It is beyond a discussion that the statute doses not refer to Criminal Code at all. Considering all above, the more convincing is the idea of “ quasi-criminal liability of corporations ” . That form of liability is a piece of repressive legislation. It is very similar to criminal law, but can not be counted to that branch of law. Normal 0 21 false false false PL X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:Standardowy; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin:0cm; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:Times New Roman,serif;}