Nulla Poena Sine Lege Research Articles

Nulla Poena Sine Lege in Continental Criminal Law: Historical and Theoretical Analysis

Multiple viewpoints have been expressed regarding the principle nulla poena sine lege (there exists no punishment without a pre-existing penal law). Some scholars advocate the inviolability of this maxim because it safeguards personal freedom—an opportunity to do everything not prohibited by law. However, its critics assert that rigid adherence to the principle nulla poena sine lege may do more harm than good. They argue that the maxim, while prohibiting judges from punishing non-criminal acts, makes it impossible for courts to deter them in a timely manner, which, in certain cases, may have a detrimental effect on society. To determine the correct approach to nulla poena sine lege, the paper considers its history in continental criminal law and then analyses the principle theoretically. The examination reveals that two contradictory interests—the need to safeguard personal freedom and the need to combat lawful, yet socially harmful, acts through judicial punishment—cannot be completely ignored in practice. Therefore, the findings suggest a balancing between these interests and propose a way to achieve this compromise.

A study on the relation between violation of disclosure duty and fraud

A study on the relation between violation of disclosure duty and fraud

A Study on the Normative development direction of Drunk driving control processing

본 연구는 ‘알콜성 구강청결제 사용 운전자(구강청결제 운전자)’와 관련하여 구강청결제의 관리체계, 음주운전단속의 근거와 벌칙, 처리절차를 규범적으로 고찰하고, 구강청결제 운전자의 음주운전금지의무위반 여부, 음주측정요구절차의 규범적 논의, 음주측정불응죄 적용의 문제, 단속처리과정의 한계, 손해전보의 입증 곤란에 대한 제도적 검토를 통해, 구강청결제 운전자에 대한 단속처리 개선방안을 제시하고자 하였다. 구강청결제는 의약외품으로 분류되어 판매에 제한이 없고, 일반 주류 수준의 알콜이 포함된 제품이 유통되고 있다. 경찰은「도로교통법」을 근거로 술에 취하였다고 인정되는 사람을 단속하고, 내부지침인「교통단속처리지침」에 의하여 구체적인 단속절차를 규정하고 있다. 음주운전금지의무를 위반한 운전자는 경찰 단속의 결과에 따라 형사처벌과 행정처분을 받게 된다. 구강청결제 운전자의 단속처리제도를 검토한 바에 의하면, 구강청결제 운전자의 음주운전금지의무위반은 채혈감정 결과를 조건으로 판단된다. 또한 음주측정 요구절차를 명시한「교통단속처리지침」은 적정하게 관리되지 않고 있으며, 위임입법을 통해 법률적 근거 없이 해석되어 죄형법정주의에 위반될 수 있다. 그리고 구강청결제 운전자가 실질적으로 술에 취하지 않았음에도 불구하고 입건하여 경찰 수사 인지권의 남용이 우려되고, 단속과정에서 발생하는 손해를 입증하기 곤란하다. 따라서 구강청결제 운전자 단속처리를 위한 대책으로 위임입법을 통해 법규적단속 근거의 필요성, 구강청결제 운전자에 대한 단속절차의 개선, 내사에 의한 구강청결제 운전자 처리, 구강청결제 운전자 단속에 대한 ‘보상제도’의 도입을 개선방안으로 제시하였다.In this study, Regarding the driver of alcoholic mouthwash(Oral cleansers) review Management system of oral cleanser, Law and penalties for drunk driving, Processing procedure. And after examining Oral cleanser driver’s Whether alcohol drinking is prohibited or not, Normative Problems of the Procedure for Demanding Drinking, Problems of non-compliance with drinking measurement, Limitations of drinking measurement Process, Difficulty in proving damage. Presented for drinking measurement process of Oral cleanser driver. Oral cleansers are classified as quasi-drugs and there is no restriction on sales, Products containing alcohol at regular alcohol levels are circulation. Police have measured on drunken people based on the Road and Traffic Act, The traffic enforcement process guidelines as an internal guide provide for enforcement procedures. Those who drink and drive are subject to criminal punishment and administrative disposition based on the results of police drinking measurement. According to the review of the control system of oral cleaner drivers, The oral cleaner driver s violation of the prohibition against drunk driving is determined by the blood sampling. Also the traffic enforcement process guidelines, which specify the drinking water measurement request procedures, are not properly managed and It can be interpreted without legal basis and violate ‘Nulla poena sine lege’. and it is difficult to prove the damage that occurs during the interception process. Therefore, Necessity of basis for Control through Delegation Legislation, Improvement of enforcement procedures for oral cleaners, Treatment of or al cleansing driver by Internal Investigation, Introduction of Actual Cost Co mpensation System were suggested as a countermeasure for Oral cleanser driver’s drunk driving measurement process.

Étude franco-canadienne du principe légaliste : le processus qualitatif et interprétatif du texte pénal

A true pillar in the field of criminal law, the Rule of Law principle a. k. a nullum crimen nulla poena sine lege implies that a person is not to be criminally sentenced pursuant to a specific text within the Law. Does such principle apply in Canada as it does in France ? Does it rise from the same foundations and does it carry the same weight ? Such are the questions the author tries to address in the current study. To that effect, main convergences and divergences in both Canadian and French Criminal Law are bought forward to further oppose two common occurrences of these identities so one will reflect, in a comparative and critical manner, upon them in terms of their significance -both theoretical and pragmatic. Moreover, the first part of this study focusses on the Rule of Law principle as it overtakes the legislator, i. e. in the manner with which the Law demands quality while, in the second part, the emphasis lies on how the judge applies the principle in the context of the interpretation of the repressive text.

The Role of the Rome Statute in the Criminalization of Apartheid

The article challenges the assertion that the apartheid system in South Africa was a crime against humanity under customary international law giving rise to individual responsibility prior to the drafting of the 1998 Rome Statute of the International Criminal Court. The article also examines the role of the Rome Statute in the criminalization of apartheid and assesses the current status of the crime of apartheid in customary international law with particular reference to the principle of legality (nullum crimen, nulla poena sine lege). Nothing in the article should be read as condoning the gross violations of human rights that resulted from the policies of apartheid in South Africa in any way.

Informal Application of Criminal Law: Demand, Limits, Doctrines

This article examines the issues of the need and opportunities for informal (thoughtful, reasonable, creative) application of the criminal law. The problem is closely related to the legal discussion on the limits of discretion of the judge in the interpretation and application of laws. The author expresses the opinion that despite the fact that the influence of legal positivism on criminal justice is stronger than on civil one, but even in a criminal case the judge does not have to be completely restrained by the letter of law. The paper justifies the need for an informal application of the criminal law, discusses the legal doctrines that allow it to do so.Beyond doubt, the compliance with the letter of law is a desirable standard in criminal justice. Nullum crimen nulla poena sine lege (no crime and punishment without law) principle is a fundamental basis of criminal law, which protects citizens from arbitrary prosecution and brings clarity to what is a crime in society and what legal consequences are foreseen to the offender. However, the need for informal application of the criminal law actually exists. The main objective reason for informal justice is eternal incompleteness of law, limited opportunities of written rules, diversity of life, which never fits into dry definitions. Even the criminal law always risks falling behind changing realities, not to respond in time to changes, misunderstand them, create uncertainty and conflicts of values.The subjective reason for informal application of criminal law is surplus, clarity and consistency strapped legislation, which often produces irrational, abstract and limitless definitions of particular crimes. These definitions later become the means to formulate excess criminal charges for minor infringements and artificially criminalize relations regulated by other branches of law (tax, administrative, civil, etc.). So, the need of informal application of the criminal law is primarily related with the need to avoid artificial criminalization and absurd criminal convictions.The author distinguishes the following working legal instruments allowing informally apply the criminal law: 1) expansive and narrowing interpretation of criminal law; 2) the concept of dangerousness of criminal act; 3) the general legal principle of proportionality and the principle of criminal law as a last resort (lat. ultima ratio); 4) the maxim of human rights protection. The paper illustrates the effectiveness of these concepts with concrete examples of court practice.

Jurisdiction of International Criminal Court

The essay begins with the evolution of the concept of international criminal court. The concept had its birth in the trial of Hagenbach and then the essay proceeds on to discuss the International Criminal Tribunal for Rwanda and Yugoslavia. Then, the emergence of the ICC with the Geneva Convention and the Nuremberg Convention are also emphasized. The essay also deals with the provisions of Article 12 and Article 13 which deals with the jurisdiction of the International Criminal Court and the issues of commitment of crimes overboard. The essay also deals with the concept of rationae personae and the issue of nullen crimen sine lege and the concept of nulla poena sine lege in the criminal jurisdiction of the ICC. The court also deals with the issues of defining genocide, and the thin line where the jurisdiction of an individual country ends and that of the ICC commences. The influence of the Security Council and the ‘big five’ and the issues of sovereignty are also dealt by the ICC. The ICC and the opposition of the United States of America meted out to the organization only for the sake of hegemony over the other countries. The signing of the Statute and then the revoking the sign by the Bush Administration will try to unearth the latent weakness in the entire system. Finally, the suggestions are given to implement the schemes properly and to properly implement the issues of ‘complementarity rule’.

The Restrictions of Retroactive Legislation: Conception and Legal Challenges

The article analyses understanding of establishing restrictions on legislators’ discretion to pass retroactive legal norms, thereby protecting subjects of the legal norms from too intense impact in the past dimension. Evaluation of retroactivity as a restriction on legislators’ actions is related to the fact that nowadays increasingly often there are appearing cases, when legislator implements amendments, impacting events that have been commenced in the past or that are fully completed. At the same time, neither legislator oneself, nor subjects of legal norms are aware of the cases, when legislator might have been exceeded legislator’s rights to interfere with the past dimension. Therefore, to comprehend restrictions established on passing retroactive legal norms, the article views historical development, as well as actual understanding of conception of retroactive effect. The article looks at several complex aspects, which until nowadays have been unclearly and superficially researched and, therefore, have influenced understanding of retroactivity. For example, the article justifies why a legislator, outside the penal law, does not have to comply with the absolute prohibition of retroactivity that exists mainly in the criminal law, on prohibition to punish without a law “nulla poena sine lege”. Namely, although the principle stipulates an absolute prohibition to pass retroactive legal norms and is considered an independent general principle of law, the principle applies only to amendments implemented in the penal law. In addition, the article reveals methodological problems related to both recognition of retroactivity and identification of its legitimacy. As regards the abovementioned, the article concludes that existence of retroactivity shall be mainly identified in cases, when a legislator has not included it in the content of a legal norm, and, therefore, for purposes of identifying retroactivity, comparatively complex legal methods have to be applied. However, methods implemented in the legal doctrine are discrepant and often cannot ensure a precise opinion on existence of the retroactivity. Even if retroactivity is identified correctly, there is no consistent understanding of cases, when retroactivity could be considered legitimate. Namely, exceptions to prohibition of retroactivity implemented in various legal systems are so wide and comprehensive that only a close supervision of the aims, of which the regulation was passed with a retroactive effect, it is possible to avoid groundless using of public interest to justify retroactivity.

인터넷불법게시물을 방임하는 인터넷서비스제공자의 형사책임

인터넷은 오늘날 3천 7백여명이 이용할 정도로 가장 거대하고 참여적인 표현촉진의 매체로 이용되고 있다. 인터넷은 사회구성원간의 집단적 의사소통을 가능하게 하여 건전한 여론형성과 민주주의 발전에 공헌을 하기도 하지만, 형법이 금지하고 있는 불법게시물에 의한 범죄행위를 대량으로 확산시키는 부정적인 모습도 가지고 있다. 인터넷상의 정보유포에 관여하는 행위자는 정보제공자, 이용자, 인터넷서비스제공자 등 3부류로 유형화 된다. 인터넷상에서 발생하는 불법게시물은 IP에 의하여 비롯되는데도 IP에 대한 형법적 규제는 무력하며 무의미하다. 수를 헤아리기 어려운 이용자와 표현의 자유와의 경계가 분명하지 않기 때문이다. 따라서 인터넷상의 불법게시물로 인한 위험방지를 위한 형사정책적 수단은 불법게시물을 저장하거나 접속을 매개해주는 ISP에 대한 규제가 효과적인 방법이다. 그럼에도 불구하고 ISP규제에 관한 법률은 미비한 실정이다. 신중한 입법론적 검토가 이루어져야 한다. 그 검토는 죄형법정주의의 적정성의 원칙과 명확성의 원칙에 충실하여야 한다. Nowadays Internet is the greatest and most participating media of prompting expression with 37 million users in Korea. Internet enables collective communications between social members and contributes to form sound public opinions and to develop democracy while it has negative aspect to distribute massively crime by illegal posting which is forbidden by the Criminal Act. Criminal actors who involve to diffuse information on Internet consist of three categories of information provider, user and internet service provider. Illegal posting generated on Internet is originated from IP and the criminal regulation on it is useless and meaningless because of its countless of users and ambiguous boundary with liberty for expression. Accordingly, the only criminal policy means to prevent danger by illegal posting on Internet is to regulate ISP which saves illegal posting and mediates contacts among users. In spite of it, legislation to regulate ISP is unprepared. The prudent legislative review should be done. And it should be accordance with the doctrines of propriety and vagueness of the principle of "nulla poena sine lege".

The Legality Principle in Sentencing at the ECCC: Making Up Law as It Goes Along?

Sui generis hybrid international criminal tribunals must conduct business without institutional memory and are only as effective or fair as their constitutive documents allow. The sparse guidance provided for the international crimes court in Cambodia creates uncertainty and arguably ambiguous standards that infringe upon the legality principle and undermine efforts for nulla poena sine lege.

Rationality and Irrationality of the New Economy of Inequality

Based on the concept promoted by Paul Krugman – “new economy of inequality” – inequality is a process that should and can be viewed from an interdisciplinary perspective. Political life, how to regulate tax matter, the way the economy is thought offers different views on inequality. The emergence of Christian version of the Bible is also important. Moreover, the more taxes are older, much easier to accept individuals, part of them to normality. Located between two opposite-tax principles of equity and that of the non-discrimination, social tax and value the idea of citizenship is possible providence-state. While the principle of neutrality and that of non-discrimination seem to be characteristic more to a liberal state, the other principle we have mentioned - of equity, seems to correspond to a social state. If progressive taxation is rational or not, the reason are more political application, to win voters, and is considered the ultimate form of redistribution. Anyway, we accept the discrimination of a minority (from the point of view of the revenues) in order to keep the majority happy! The tax in general, but a fortiori the progressive tax, is seen as a sanction, as a sentence. Thus, the comparison between “nulla poena sine lege” corresponds to “nullum impositum sine lege”. Explained as a sign of solidarity, progressive tax bides a week economy, being borne, ultimately, for most individuals, the ancestral middle class. Today, inequality is fueled by the corruption of the political system, the provisions of tax regulation, that exemption or reduction of taxes, stand on the basis of increased inflation.

Commonwealth v. Keller: The Irrelevance of the Legality Principle in American Criminal Law

Commonwealth v. Keller, 35 Pa. D. & C.2d 615 (1964), is not a leading case in American criminal law, but it should be. Ostensibly about the common law misdemeanor of indecent disposition of a dead body, this trial court opinion in fact raises important questions about the foundation of the state’s power to punish through criminal law, questions that have not received sufficient attention in American legal and political discourse in general, and in American criminal law teaching in particular. In fact, Keller’s irrelevance itself is symptomatic of the irrelevance of the principle of legality in American criminal law. Rather than being regarded, and employed, as a fundamental principle of legitimacy of state penal power, the principle of legality is poorly understood as a disconnected aggregate of maxims, rules, and guidelines – preferably cited in lawyers’ Latin phrases of uncertain formulation and meaning (“nullum crimen sine lege” and “nullum crimen, nulla poena sine lege” being two popular variations) that join other groundless, anachronistic, and ill-examined bedrocks of American criminal law, most notably actus reus and mens rea, or their combination as “actus non facit reum nisi mens sit rea.”

The Rationale for the Nullum Crimen Principle

[…] I have always wondered why friends and foes of the ‘new course’ did not immediately tell each other the only possible answer [to the question why not act pre-emptively, as happens with lunatics etc., before the crime has actually been committed]: criminal law (and here I may perhaps be allowed to recall my old formulation) is the legally limited punitive power of the State. It is legally limited in preconditions and content; legally limited in the interest of individual freedom. Nullum crimen sine lege, nulla poena sine lege. These two maxims are the citizen's bulwark against the State's omnipotence; they protect the individual against the ruthless power of the majority, against Leviathan. However paradoxical it may sound, the Criminal Code is the criminal's Magna Charta. It certifies his right to be punished only in accordance with the statutory requirements and only within the statutory limits. And...

The Aggravating Circumstance of Recidivism and the Principle of Legality in the EC Fining Policy: Nulla Poena Sine Lege?

The European Commission takes into account several factors when it imposes fines for the violation of Competition Law. Amongst them, the aggravating circumstance of recidivism is usually considered. However, no explicit legal provision for recidivism can be found in the primary or secondary legislation of the European Union. This situation could infringe the fundamental right and principle of Community Law that states that criminal law must be legally foreseen: the so-called principle of nulla poena sine lege. It seems worth analysing to what extent that principle is fulfilled by the European Commission and the European Courts. As a result of this research, it can be concluded that the EC enforcement of Antitrust Law poses serious doubts in relation to the principle of legality. Certainly, the Commission enjoys a broad discretion in its justification of competition fines and this has even been extended by judicial review. Such a state of affairs may be justified politically, but it is not legally acceptable. The principles of legality and legal certainty require a more transparent system. The influence of the ECHR and of the new bias towards criminalisation may improve this situation. This article has been shortlisted for the 1st World Competition Young Writers Award

Legality Principle of Crimes and Punishments in Iranian Legal System

The Principle of legality of crimes and punishments (nullum crimen, nulla poena sine lege) refers to the fact that an act is not considered a crime and deserves no punishment, unless the Legislator determines and announces the criminal title and its penalty before. The legality principle protects individual security by ensuring basic individual liberties against the arbitrary and unwarranted intrusion of the state. Thus, the criminal judge cannot call the individuals’ acts crime and assign punishments for them or exert punishments that are not prescribed by the Legislator without any letter of law. If an act is morally rebutted or is socially against the public order, it is not regarded as crime and the Legislator is the only authority who can recognize some acts as crime and punish the actor. In Iranian legal system, before the Islamic Revolution and also after it, the Constitution and ordinary laws have explicitly emphasized the observance of the mentioned principle. When there is no text or in the case of the silence or lack of law, the criminal judge is bound to issue the verdict of innocence. In recent years, as a result of the great misunderstanding of the Art.167 of the Constitution, ordinary rules including s. 214 of the Criminal Procedure of Public and Revolutionary Courts Act 1999, and s. 8 of the Revolutionary and Public Courts Act 1994, allowed the criminal judge to refer to the Jurisprudence and religious decrees in order to assign the criminal titles and the related punishments, when there is no text or in the case of the silence or lack of law. This paper attempts to verify this legal base. It refers to the history of the discussion and the articles of the Constitution and the jural sources to indicate that it’s necessary to pay more attention to the aforementioned law and the legality principle, which in turn makes it possible to abolish or amend the contradictory laws. Keywords: The legality principle, The Constitution, Individual liberties

Rethinking Retrospective Criminality in the Context of War Crimes Trials

This article focuses upon the deficits inherent within the hitherto undifferentiated concept of ‘retrospectivity’ and the formulation of an appropriate typography of the retrospective strands within it, against the backcloth of the Trial of the Major War Criminals, 1945–1946, conducted at Nuremberg in the immediate aftermath of World War II. Following a brief description of the historical provenance and significance of the doctrine, nullum crimen sine lege praevia; nulla poena sine lege praevia; no crime and no punishment without previously established law, it seeks to explore and evaluate the salient provisions of the Nuremberg Charter, unilaterally enacted by the Allies on 8th August, 1945, under which the entire trial proceedings were subsequently governed. The segments of the Charter, ostensibly reliant upon the deployment of ex post facto criminal law are extrapolated, analysed and linked to the relevant strands of retrospectivity, identified within the postulated typography. This elucidation of the notion of ‘retrospectivity’ may not only provide keener insight into the historical utilisation of ex post facto law but also intensify awareness of any prospective violation of the nulla poena doctrine.

Création et compétences du Tribunal pénal international pour l'ex-Yougoslavie

The Security Council adopted Resolution 808 on February 22, 1993. This resolution created an international tribunal to judge people presumed responsible for grave breaches of humanitarian law committed on the territory of the former Yugoslavia since 1991. The tribunal's status is defined by Resolution 827, whereby its jurisdiction covers all serious violations committed by individuals in the former Yugoslavia. The principle nullum crimen, nulla poena sine lege is fully respected. The tribunal's effectiveness, however, depends on the rulings the judges will hand down and on support from all states. Creating the ICT has been deemed a very important step. By judging criminals, the tribunal not only hopes to introduce the idea of justice into a sphere of international life dominated by power relationships, but also wishes especially to dampen the victors' feeling of impunity. AU of this requires one thing : the goodwill of the states so that this tribunal may carry out its task.

The Legality Principle of Crimes and Punishments in the Iranian Legal System

The legality principle of crimes and punishments is derived from the Latin phrase "nullum crimen, nulla poena sine lege". Thus, no act whether immoral or against public interest or public order is considered a crime, if it is not specified by law before. As a result, the criminal judge cannot construe the individual's acts as crimes and assign punishment, even if he proves that it is worthy and useful in respect of the social interests. The second outcome is the necessity of the restrictive interpretation of the Criminal Law on the basis that the criminal judge should refer to the content of legal texts to assign the punishments and to identify the accusative titles, without resorting to analogy or adverse notion. The mentioned statements are coherent and connected phenomena in the Logic of Law. Therefore, the legality principle and its consequences are inseparable. One cannot accept a part of it and reject the rest. Even the Legislator, who provides the Criminal Law cannot deviate from this principle and its consequences, unless in exceptional cases. This is confirmed in the Islamic law, and is based on the individual's innate rights; in addition, the articles of the Constitution also approve it and make the ordinary Legislator and the Judges observe it.

NULLUM CRIMEN NULLA POENA SINE LEGE PRINCIPLE AND THE ICTY AND ICTR

Not many scholarly writings deal with sentencing practices of the ICTY and the ICTR. When compared to frequently discussed topics within the subject matter jurisdiction of the ad hoc Tribunals, they are relatively scarce. Both of these Tribunals’ Statutes provide a sentencing regime encompassing, inter alia, a reference to national sentencing practice. It is the author’s view that the provisions of the statutes and rules of procedure and evidence may violate the nullum crimen nulla poena sine lege principle in certain respects. Without a doubt, the rationale underlying the Second World War precedents with respect to sentencing does not accurately reflect the status of international law norms today. As such, the evolvement of human rights law must be reflected in the current sentencing practice of the ad hoc Tribunals. Moreover, the ICTY and ICTR interpretation of the international sentencing mechanism provides inconsistent justice, which in turn harms the legacy of these ad hoc Tribunals. In fact, an accused could successfully argue that life imprisonment as provided by rules 101 of the Rules of Procedure and Evidence of both ICTY and ICTR are not prescribed by law. Accordingly, the ICTY and ICTR provisions regarding sentencing should be amended.

Garanties Constitutionnelles Relatives a L'individu Face à la Justice dans les États D'afrique Francophone

SUMMARYFrancophone African constitutions generally make provision for fundamental rights. In criminal proceedings, the principle nulla poena sine lege is expressly incorporated in some, but not all, the constitutions. All the constitutions legislate against arbitrary arrest and detention; some legislate against brutality and torture. But these rights are subject to numerous exceptions and limitations.African countries generally distinguish between constitutional provisions and ordinary laws; the former are supreme, and may only be amended by special procedures. Constitutionality of legislation is generally judged in the francophone states by the Supreme Court or a special tribunal (this procedure differs from that in the parent French and Belgian constitutions). Within each Supreme Court there are normally several chambers or divisions: judicial review of the constitutionality of legislation is generally the business of a constitutional chamber of the Supreme Court. There is often a political element in the nomination of the persons to serve on such a special constitutional court.