Function Of Criminal Law Research Articles

Penal Mediation in Settlement of Copyright Crimes in Indonesia

This study aims to obtain an overview of Penal Mediation in the Settlement of Copyright Crimes in Indonesia. The research method uses a normative juridical approach, type of data uses qualitative data and data sources in the form of secondary data, data collection methods using literature study methods, and documentation. Furthermore, the data will be analyzed qualitatively and then conclusions will be conclused with deductive approach. In the provisions of Article 95 of Law Number 28 of 2014 concerning Copyright henceforward referred to as the Copyright Law, the government has given options to the parties in resolving disputes, namely by Alternative Dispute Resolution, Arbitration, and Court Institutions. The implementation of this mediation is known as penal mediation. Penal mediation pursued in the event of misdemeanor offenses and cases of a delict nature. The imposition of criminal law related to copyright infringement that requires mediation in advance in addition to piracy follows the function of criminal law as an ultimum remedium which is the last resort if other laws cannot provide a solution, however, for criminal acts of piracy, mediation is not carried out (penal mediation) but directly by using the litigation mechanism in this case the district court.

The Aims and Functions of Criminal Law

What are the aims and functions of criminal law? This question has recently been much debated. Unfortunately, however, the debate is difficult to assess, as what it means to call something an aim or function of criminal law remains unclear. This article therefore does two things. First, it examines what these competing claims about criminal law's aims and functions might mean. Most plausibly, it is argued, they refer to one of three sets of things that criminal law does: those that justify its retention or use, that it is aimed at doing, or that explain its existence or persistence. Second, the article examines how convincing these claims are when thus understood. It argues that, in each of the senses identified, criminal law has numerous aims and functions – more than all sides in the debate allow.

PROTECTION OF VALUES OR MANAGEMENT BY REPRESSION. ON THE FUNCTIONS OF CONTEMPORARY CRIMINAL LAW

The study is devoted to an attempt to determine whether the analyses carried out at the level of the philosophy, theory and analysis and synthesis of criminal law, as well as the approaches presented in various criminological theories can be used in debates about the goals and functions of modern criminal law. The analyses carried out are based on the reconstruction of the current state of criminal law, dominated in many countries by penal populism. The coincidence of the repressiveness characteristic of the populist approach subordinated to the implementation of the concept of extreme deterrence, with the position of the legal elite as to the goals and functions of criminal law, illustrates the state of tensions and crises in which contemporary repressive law has found itself. The image of the public debate, characterized by the unambiguity of positions combined with the lack of perceptual openness to the views presented by the proponents of opposing approaches, provides a premise for the search for rational and verifiable arguments in disputes over the shape of criminal law. Given the limitations of the analysis and synthesis of criminal law in the sphere of disputes about values, an anthropological vision and a model of social structure make it reasonable to search for premises that order the debate about criminal law on other levels. In this regard, the study presents systemic approaches presented in the philosophy of criminal law combined with an attempt to justify that, in fact, complementary elements can be seen in them. Complementing the philosophical perspective is the plane of criminal law theory, on which one can also find elements that are part of the universal approach to repressive law. Adding to this picture of modern criminological theories, the study presents the thesis that modern criminal law serves multiple, sometimes opposing functions justified by reference to other assumptions and models of social structure. The multiple functions of modern criminal law make it unreasonable to refer to the dichotomy capturing alternatively the functions and goals of criminal law either as an instrument for protection of socially valuable values or as a tool of management by repression. The text seeks to justify the position that modern criminal law performs, in part, both functions indicated above. At the same time, there are opportunities to rationally limit the use of criminal law instrumentally as a tool of management by repression in the interest of power and certain social groups. The science of criminal law, encompassing the following planes: theoretical and philosophical, can be a plane that provides premises and arguments to help resolve contemporary dilemmas. In particular, it seems that the approaches presented in the science of criminal law and criminology are not so much of an opposing and radically competitive nature, but are in fact harmonizing, containing a number of complementary elements in a complex set of assumptions and claims that make up a holistic approach to the criminal law system.

Pozaustawowe kontratypy - zarys problematyki

This article is devoted to analyse outside statutory of factors excluding criminal responsibility conception. Nowadays Polish jurisprudence quite widely accepts this one, not based on act conception. Only a few notice the shortcomings of outside of statutory factors excluding criminal responsibility. Nevertheless, not many make this topic on a deeper reflection. The article attempts to collect the views on this subject in existing polish jurisprudence. It should be noted, that this views are fragmented in numerous articles, books and commentaries. Therefore, an assessment of the concept of outside statutory of factors excluding criminal responsibility which releate to: the function of criminal law, nullum crimen sine lege rule, the separation of powers rule, protection the victim rights and the contents of art. 17 k.p.k. Furthermore, the problem of definiteness constituent elements of outside statutory of the factors excluding criminal responsibility was outlined. It was also presented what behaviors qualify as outside statutory of the factors excluding criminal responsibility by individual representatives of jurisprudence. As a result, the validity of conception of outside statutory of the factors excluding criminal responsibility seems to be fairly questionable.

ODMERAVANJE KAZNE ZA KRIVIČNA DELA U STICAJU

The process of sentencing means individualization and customization types and extent of sentencing the crime and its perpetrator. In that way, the purpose of criminal law, which consists in the last defense of the society from crime, is best realized. The whole process of keeping the pre-trial and criminal proceedings has the ultimate goal of sentencing the defendant. Furthermore, the procedure of execution of the sentence is based on its previous measurement and adjustment of the personality of the convicted person. Hence, the case law abounds with examples in which an inadequately measured sentence has called into question the criminal procedure itself and the defensive function of criminal law in the society. The issue of sentencing in modern criminal law has been resolved in accordance with modern trends in the field of punishing perpetrators of criminal offenses. Therefore, we can distinguish between regular sentencing, which means that the perpetrator goes to court for one criminal offense. However, in court practice, it is not uncommon for the perpetrator to go to court due to multiple predicate offenses made in ideal or real time. In this case, special sentencing rules apply, which take into account the fact that several criminal offenses are tried at the same time. In criminal doctrine, there are several modalities of sentencing for predicate offenses. Their number varied in different time intervals. Our legislator has incorporated into its norms three ways of sentencing for predicate offenses. These are the systems: absorptions, asperations, and cumulations. In this paper, we will point out the advantages, disadvantages and applicability of each of these systems that sentencing predicate offenses.

Miejsce popełnienia przestępstwa abstrakcyjnego zagrożenia a terytorialny zasięg polskiego prawa karnego

The paper discusses the possibility of prosecuting an offence committed abroad pursuant to the Polish law based on the territoriality principle, if it is an abstract endangerment offence. According to commonly shared understanding of Article 6(2) pcc, such offences, unlike offences of specific endangerment or violations, can be considered as committed only in the location where the offender performed his act, regardless of where the results of their act occurred. Such an interpretation restricts the application of the territoriality principle in the cases in which the offender acts abroad but the legal good is endangered or even violated on Polish grounds and the legislator decided to protect this good even from abstract dangers. Such restriction does not seem to be justified having in regard the main functions of criminal law, such as protection and compensation. Thus the expression “the result constituting a feature of a prohibited act” used in Article 6(2) pcc, requires rethinking. It should be read from a new perspective, not the perspective of unlawfulness, but considering the role the “place of committing an offence” plays in determining Polish jurisdiction and application of the Polish law.

Klauzula dobrego samarytanina, czyli nowy kontratyp w związku z przeciwdziałaniem COVID-19

‘The Good Samaritan Clause’ is a new justification, which exclude criminal liability for non-blatant and unintentional medical error. The solution adopted is, on the one hand, an important precedent in the approach to the issue of medical errors and represents turn towards the ‘no fault’ system. On the other hand, it may adversely affect the implementation of certain functions of criminal law. The aim of the article is a comprehensive analysis of the justification introduced, an attempt to assess its legitimacy and impact on the health care system and the fundamental assumptions of the state's criminal policy in the context of criminal law functions.

Digitalization of gender-based violence

The author's article pays attention to the problem of stalking in modern society, the concept and features of this phenomenon. In accordance with the analysis of current legislation, the question of criminalizing stalking is raised. The main directions of an integrated approach to stalking prevention as one of the types of gender-based violence are identified.An important objective towards the formation of a society that is devoid of gender stereotypes is the development and improvement of laws regarding gender component. An extremely necessary issue is the prevention of gender-based violence, which has recently become developed in a new field and needs both the international community and the leadership of individual countries. First of all, the prevention of violence is an activity aimed of protecting and preserving life, ensuring respect for each other, equal communication and respect for the other person's difference, respect for the choice of another person.The issue of responsibility for stalking, including the use of electronic means of communication, is extremely used today. The state of development of electronic communications is relevant so they are used not only for good but also for illegal purposes. In this regard, the legislator needs the attention of the criminalization of stalking. Criminalization of prosecution will provide a comprehensive impact on the phenomenon under study, as well as implement not only punitive but also the preventive function of criminal law. In this aspect, the issue of educational psychological study with people is relevant, because it is based on real or imagined interpersonal conflict, which generates the behavior of persecution, harassment, intimidation and more. Only integrating the capabilities of different institutions, both punitive and educational, by using the capabilities of media companies, NGOs, hotlines for counselling and emergency care, the establishment of criminal liability can be an effective tool to prevent stalking.

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.

Пределы вмешательства уголовного права в сферу исследования генома человека

Introduction: the unprecedented successes of genetics have created a clear need to specify the limits of intervention of criminal law in relations associated with research into the human genome. When addressing this issue, it is essential to take into account not only the advantages that genetic engineering offers to mankind but also the threats posed by the technologies in question. Purpose: to determine the potential limits of criminal law interference in relations associated with the study of the genome. Objectives: to classify the limits of criminal law intervention, to identify the forms of socially dangerous behavior to be criminalized; to differentiate between the protective functions of criminal and administrative legislation in relation to the category of offenses under consideration; to designate areas that are off-limits to criminal law interference. Methods: both general and specific scientific methods were used, including dialectic, deduction and induction, content analysis, comparative legal method, statistical method, questioning, interviewing. Results: the limits of intervention within the protective function of criminal law have been analyzed based on five grounds, and none of the listed limits has been found to be properly defined for the field of genetic research. Based on five aspects of the manifestation of the genome in legal relations, the paper outlines the possibilities for improving the Russian criminal law taking into account the protection of each of the aspects. The accent on criminal law in the corresponding area of legal policy appears to be unacceptable. However, it is important to designate several socially dangerous acts affecting relations in the field of genetics as those that should be criminalized. On the other hand, in the interest of progress in genetic research, there is a need to actively develop the institute of circumstances excluding criminality of an act. Conclusions: the formation of temporal, spatial, subjective, substantive and interbranch limits of criminal law intervention in the human DNA research will allow geneticists to more accurately determine the reference points of scientific research, to channel their efforts exclusively into creative and constructive work, and will make it possible for all the interested parties to be more active in providing organizational, financial and scientific assistance for such researchers.

Svrha krivičnih sankcija u pravu Republike Srbije

The subject of the paper is the general and specific purpose of criminal sanctions in the law of the Republic of Serbia, with a brief overview of certain characteristics of criminal sanctions, and in order to better understanding them. Achieving the purpose of prescribing and imposing criminal sanctions contributes to the realization of the basic function of criminal law, which is aimed at combating crime. Reducing crime is necessary, but as it is a complex phenomenon, achieving this goal is not easy, and understanding the purpose of criminal sanctions can contribute to a more successful application of criminal law and, to that end, to more successfully counteract of this negative phenomenon.

A Função da “Personalidade do Estado” na Elaboração Penal do Fascismo Italiano: laesae maiestas e tecnicismo-jurídico no Código Rocco (1930)

O presente artigo discute a função da personalidade jurídica atribuída ao Estado no Código Penal Italiano de 1930 para a instituição de categorias autoritárias e totalizantes. Para isso, buscou-se inicialmente localizar a importância do Código no itinerário fascista de imposição de poder. Foram analisadas quais funções do direito penal foram flexibilizadas, ignoradas ou atribuídas. Por meio da ressignificação da expressão laesa maiestas, focou-se na relação entre a nova figura do Estado no contexto do Código Penal e o deslocamento de tutela de reconhecimento de bens jurídicos posterior, em especial no que se refere à virada punitivista, que coloca o indivíduo como alvo e como possível ameaça e não mais como sujeito da tutela jurídica. Por fim, foram analisados os institutos maculados de forma mais visível por essa característica e sua reminiscência na atual legislação penal italiana.

Guilty Robots? – Rethinking the Nature of Culpability and Legal Personhood in an Age of Artificial Intelligence

Robots and Artificial Intelligence are conquering our world. Just as any progress, this development is expected to have a relevant impact on law in general as well as on criminal law in particular. It involves the potential of transforming our conception of criminal responsibility, as notions of personhood, capacity and culpability will not stay unaffected. This article aims at giving an overview of the potential conversion criminal law is facing due to the increased importance of robotics and of artificial intelligence in our everyday lives. The discussion starts with an overview of different scenarios of criminal liability in the context of robotics. While some of them can be faced with existing doctrines, others demand a more far reaching assessment of the question if robots could ever gain legal personhood and therefore be originally called to account. While the picture of robots as liable perpetrators seems implausible at first sight, the present analysis reveals that blameworthiness is inherently socially constructed. However, it is not randomly constituted and follows social interaction and social meaning in fulfilling a certain function. Enabling the possibility of robots’ criminal liability therefore would require that robots are regarded as a suitable agent of responsibility. The article lights up the conditions for such social and legal change in rethinking the very nature of culpability having the overall function of criminal law in mind. It can be concluded that the on-going technological progress definitely has the potential of testing the theory of criminal responsibility while more clearly unveiling its foundations and its sociological implications. A guilty robot, however, as fictional as that appears today, may be nothing unrealistic nor unlikely in the future.

THE MISGUIDED CONCEPT OF PARTIAL JUSTIFICATION

Despite the fundamentally binary character of justification (an act is either right or not, permissible or impermissible), an upsurge in recent Anglo-American scholarship offers some highly sophisticated and widely diverging conceptions of “partial justification” in criminal law. In the present article we identify eight distinct conceptions of partial justification. We find, however, that each of them is predicated on a different conceptual fallacy. Any sound concept of partial justification in criminal law ought to meet the dual challenge of utility and consistency: it should usefully convey a message that advances the conduct-guiding function of criminal law and retain some consistency with the key attributes of complete justification, particularly its allowing function and the implications of its typically universal nature. We maintain that none of the conceptions offered to date meets this challenge. The different meanings attached to partial justification do not further the guiding function of criminal law beyond what is achieved by the scalar concept of wrongfulness; indeed, they undermine the guiding utility of criminal law by obscuring the distinction between the permissible and the impermissible, thereby also diminishing the expressivity of the criminal conviction. Furthermore, extending partial universality to the proposed notions of partial justification implausibly marks retaliating victims and intervening third parties, who react to allegedly partially justified conduct, as partly blameworthy, whereas present legal doctrine rightly affords them a full defense.

A Study on the Relation between the Diversification of Criminal Sanctions and the Function of Criminal Law

A Study on the Relation between the Diversification of Criminal Sanctions and the Function of Criminal Law

Criteria for determining illegality and the theory of anti‐value acts (Handlungsunwert): with a discussion of the standpoint of contemporary Chinese criminal jurisprudence

违法性论是刑法理论的试金石，研究违法性判断的基准问题，对于形成学派论 争，全面推进中国刑法学的发展有重大意义。结果无价值论和行为无价值论思考违法 性问题的路径不同，由此导致犯罪成立范围、认定犯罪过程、犯罪和刑罚的关系、刑 法和社会的关联性都不相同。（二元的）行为无价值论充分考虑特定时期的社会现 实、规范期待，注重刑法的行为引导功能，是合理的理论。根据这种违法性论，违法 性判断的核心是行为，法益侵害只是决定“行为性质”的要素；刑法不是单纯为了弥 补损害，而要着眼于让国民养成规范意识，防止损害再次发生。当代中国刑法学应当 以（二元的）行为无价值论为基点来建构，以回应社会需要，促进公众的规范认同。 关键词: 违法论 评价基准 法益侵害 规范违反 刑法立场 The doctrine of illegality serves as a touchstone of criminal law theory, and research into the criteria for determining illegality is of great significance for promoting debate between different schools of thought and for the overall development of Chinese criminal jurisprudence. The theories of anti‐value consequences (Erfolgsunwert) and anti‐value acts (Handlungsunwert) take different approaches to thinking about the issue of illegality, leading to differences in the scope of establishing what constitutes a crime, the process of determining whether a crime has been committed, the relationship between crime and punishment and the correlation between criminal law and society. The (dualistic) theory of anti‐value acts takes into full consideration the social reality and normative anticipations of a given period and gives due weight to the function of criminal law in guiding behavior; it is therefore a rational theory. According to this view of illegality, the act is the core issue determining illegality; infringement of legal interests is simply an element determining the “nature of the act.” Criminal law does not exist only to provide restitution for injury, but also aims to cultivate citizens' consciousness of norms to prevent possible future injury. Contemporary criminal jurisprudence in China should be constructed on the basis of the (dualistic) theory of anti‐value acts with a view to responding to the needs of society and promoting normative identification on the part of the general public.

The function of criminal law of the liability principle on the object of punishment

The function of criminal law of the liability principle on the object of punishment

A Permanent State of Emergency

The function of criminal law has been altered within the context of the anti-terrorist struggle. Normally, criminal law treats prosecuted persons as individuals. The criminalization of terrorist organizations and the criminalization of participation in or support for such organizations create offenses of collective responsibility. The object is to attack actual or potential organizations. It is no longer just the act of committing a crime or even the intention of doing so that is prosecuted. Merely belonging to a group that is considered terrorist by the government is sufficient for punishmentThis article can also be found at the Monthly Review website, where most recent articles are published in full.Click here to purchase a PDF version of this article at the Monthly Review website.

Creating a Drug Czar: A Study of Political Rationality and Symbolic Politics

Many prominent criminal justice experts have characterized as irrational the federal anti-crime/anti-drug legislation enacted during the last two decades. Among the drug provisions repeatedly considered and sometimes enacted by Congress were proposals to establish a drug czar. To gain insight into the political rationality underlying Congress's persistent efforts to establish a drug czar, this article examines these attempts in the context of symbolic politics — what political acts mean to the public — and political institutions. Specifically, it explores how Congressional efforts to enact a drug czar reflect Congress' need to reassure the public and how a political structure can serve a symbolic threat/reassurance function of criminal law.

The Functions of Criminal Law in Riot Control

The Functions of Criminal Law in Riot Control