Penal Law Research Articles

Законодательные гарантии защиты осужденных к лишению свободы от пыток, другого жестокого или унижающего достоинство обращения в постсоветских государствах

The article presents a comparative legal analysis of the penal laws of the post-Soviet states on legal guarantees for the protection of persons sentenced to imprisonment from torture and similar treatment. The basis of the study is the elements of the system of international legal guarantees: material, procedural, and institutional. The discrepancy between the wording of international standards and Russian regulatory legal acts regarding the prohibition of torture and similar treatment is evaluated. The study is carried out according to a number of criteria reflecting various aspects of these guarantees: terminology, localization of the guarantees in the structure of codes, determination of the place of these guarantees in the system of the rights of convicts, fixation of the national preventive mechanism in the law. The similarities and differences of the penal law of the post-Soviet states are revealed. Proposals are formulated to improve Russian laws.

Punishment as Medicine in the Thought of St. Thomas Aquinas

Punishment as Medicine in the Thought of St. Thomas Aquinas Sr. Elinor Gardner O.P. A man who is unjust, is thoroughly miserable,the more so if he doesn’t get his due punishmentfor the wrongdoing he commits. (Plato, Gorgias 472e) He wounds as he heals. (Job 5:18) IN 1953, POPE PIUS XII addressed a gathering of Italian jurists in Rome, observing that “most modern theories of penal law explain punishment and justify it in the last resort as a protective measure.”1 This deterrent function, along with attempts to reform, he said, fail adequately to explain punishment, the ultimate purpose of which “must be sought on a higher plane,” namely, the restoration of that order which has been upset in the commission of a crime. Only “this more profound understanding of punishment” can get us “to the heart of the matter,” to the sacredness of the law itself, “so that whoever breaks it is punishable and will be punished.”2 Pius XII was responding to a type of humanist thinking about punishment in vogue in the first half of the twentieth century.3 Philosopher Michael Davis notes that in the 1960s, [End Page 1] the kind of theories critiqued by Pope Pius, C. S. Lewis,4 and others suffered a “long and steep decline.”5 In the 1970s, “preventive theories of punishment” gave place to various forms of what came to be called “retributivism.”6 In the United States, this revival of interest in the retributive meaning of punishment was legal as well as philosophical, being reflected in debates following the 1972 and 1976 Supreme Court decisions on the punishment of death.7 Retributivists maintain that the defining feature of punishment is that it gives to wrongdoers something that they deserve because of a prior wrong.8 It is desert that justifies the infliction of harm on another person, which punishment necessarily involves. In response to retributivist arguments, others maintain that retribution does not define or justify punishment, and that harming another by punishing him can only be justified by looking to some good effect or effects to [End Page 2] be achieved through the punishment (the “nonretributivist” position). Although, as we will see, twentieth-century retributivism differs in important respects from classical accounts of punishment, its proponents often look to that tradition for support, and some of them find in Thomas Aquinas a compelling defense of just retribution. But is Thomas a retributivist? Although it would be a mistake to examine Thomas’s thought on punishment exclusively within the bounds of the contemporary categories (retributivist vs. nonretributivist), we begin there in order to highlight the present relevance of this study, and to see exactly where and why Thomas does not “fit in” to the contemporary dialogue, in order that we may better know the contours of his account and at the same time realize what contemporary explanations of punishment tend to omit. Ultimately we want to know what is the right way for a Christian to think about punishments: should we desire them as good, or should we look at them as necessary but unfortunate features of life, to be chosen only as far as is necessary to preserve the good order of society? In light of this general goal, this paper has three specific aims. It aims to show, first, that Thomas’s account of punishment is better described as “medicinal” than “retributivist,” and, second, that a correct understanding of the medicinal character of human punishments requires reference to the revealed truth of divine retribution. Finally, through these clarifications of the Thomistic account of punishment, the third aim of this paper is to highlight what is lacking in the contemporary debates, and thereby contribute to a more Christian view of the phenomenon of punishment. We will begin with an analysis of contemporary retributivism to pose the “retribution or medicine” question, after which we will turn to Thomas’s own account of punishment. After considering some difficulties with the use of “punishment” as a translation of poena, we will consider how Thomas defines this phenomenon, and the various ways in which it resembles medicine. This will bring us to the theological perspective, which I will...

Der zweifache Stellenwert des Rechtssubjekts in der Straftheorie P.J.A. Feuerbachs

Among legal scholars, P. J. A. Feuerbach is considered one of the most important German jurists of the 19th century: not only has he established Germany’s modern doctrine of penal law and the Bavarian penal code of 1813, but he is also the founder of the theory of psychological force, i.e. the idea of the threat of punishment (not punishment itself!) as deterrence. Whereas one cannot comprehend Feuerbach’s legal doctrines without their original philosophical justification, namely his concept of the legal subject as a citizen of two worlds, most contemporary interpreters ignore this aspect of Feuerbach’s theory of punishment. Against this reductionist interpretation of Feuerbach, by reconstructing his philosophy of punishment, this article exposes both the theoretical potential and shortcomings of Feuerbach’s main philosophical concepts.

Phenomenon of Administrative Prejudice in Russian Penal Law

Phenomenon of Administrative Prejudice in Russian Penal Law

조선총독부의 민족종교 탄압과 제주도 무극대도 사건

The Mugeuk Daedokyo Incident on Jeju Island was a significant incident that occurred on Jeju Island in 1937 when Japan was moving toward militarism. According to the verdict, 20 people were convicted in this case. The most common crimes they were charged with were “impiety to the Japanese Emperor” and “National security law.” ‘Impiety to the Japanese Emperor” consisted in the fact that they foresaw that the Japanese Emperor would soon be dethroned, and “National security law” was invoked as they said that Japan’s imperialism would soon collapse and Joseon would become independent. Additionally, Military penal law and Navy penal law were involved as Japan said that it would lose in the Sino-Japanese War. This incident was part of an independence movement that desired the defeat of Japan and Korea's independence. To block the support of the general public for the religious leader Kang Seung-tae, the Japanese government played on social issues such as “fraud,” “rape,” and “violation of doctors’ rules.” charged with immorality.
 The Imperial Japanese divided the religions of colonial Korea into two types. Japan’s state religions, “Shinto” and “Buddhism,” and “Christianity,” were classified as religions and administered by the Religious Division of the Academic Affairs Bureau of the Japanese Government-General of Korea. Ethnic religions that desired human liberation, national liberation, and national independence were classified as “similar religions,” and were controlled by the Government-General’s Police Bureau, which suppressed independence activists. Religions classified as pseudo-religions were all ethnic religions that dreamed of national liberation.
 Even after the liberation of Korea, this religious classification made by the Japanese was accepted as it was, and those involved in the Mugeukdaedo incident were excluded from the national conferment of a decoration. Kang Seung-tae, the leader of the Mugeuk Daedokyo, was treated as a person of interest to the point that even after serving his six-year sentence, the Japanese Empire would not release him, because the view of the Japanese Government- General, who treated him as a pseudo religious leader, was maintained even after liberation.
 Now is the time to frame the Mugeukdaedo incident on Jeju Island as one of the fiercest national liberation movements of the 1930s.

THE LEGAL CONCEPT OF ECONOMIC CRIME IN JORDANIAN AND COMPARATIVE LEGISLATION

This study aims to clarify that the term “economic crime” refers to a modern set of crimes, posing harm to the legal interest that the Penal Law has unsought to protect, whereas the term “Economic Penal Law” goes beyond the notion of modern crimes to the idea of establishing special legislation. The study came to a number of conclusions and recommendations, the most significant of which is the need to repeal Paragraph C of Article 3 of Economic Crimes Law No. 11 of 1993 and its amendments, which identified a set of crimes stipulated in the Penal Law and considered them economic if they meet the general conditions for economic crime outlined in Paragraph A of the same article, as this is considered a legislative error. Jurisprudence differs in the definition of economic crime, as some have adopted an expanded definition of economic crime to include every violation of the economy in general, while others have adopted a narrow concept of economic crime to include only acts that harm the national economy or the public confidence.

Markus Graulich, Heribert Hallermann, Das neue kirchliche Strafrecht. Einführung und Kommentar. Münster: Aschendorf Verlag, 2021, 278 pp.

The review presents a book by two experienced German authors, experts in the penal law of the Catholic Church, presenting in a concise and clear manner the new Book VI of the 1983 Code of Canon Law, promulgated in 2021 by Pope Francis' Apostolic Constitution Pascite gregem Dei, to users in the German-speaking area. The authors present the origins of the revised text, its main features, and provide commentary on each individual canon. They also present the original Latin texts and the German translation of both the Apostolic Constitution and the new Book VI of the Codex itself. Synopses of the original 1983 text and the revised 2021 text, in both Latin and German, also facilitate familiarity with the new legislation.

The nature Of the Crimes Committed by The Iraqi Army Against Individuals According to National and International Law on October 16, 2017

In order to clarify and determine the nature of the crimes committed by the Iraqi army against individuals as a problem and the importance of this study in accordance with national and international laws on October 16, 2017. We worked to identify the elements that determine that nature in terms of the presence of the criminalization text and the pillars of those crimes and who has the right to file a criminal complaint in them and then determine the applicable law and the competent judiciary. Between the Iraqi penal code and the international criminal justice. Through the study of Iraqi penal laws - Penal Code No. 111 of 1969, Military Penal Code No. 13 of 1940, the International Criminal Court system, the Geneva Conventions of 1949, and their protocols. In documenting those crimes and working to investigate them, whether by the Iraqi national judiciary or the international court at the International Criminal Court. Because the crimes committed cannot be tolerated or ignored, they must be internationalized if they are not addressed by Parliament and the Iraqi authorities to begin investigating and prosecuting the perpetrators, whoever they are, regardless of their characteristics or their positions in the state or the Iraqi army. We have concluded, according to the plan followed in the research, that the nature of these crimes is international because the Iraqi text has lost its criminalization and is within the jurisdiction of the International Criminal Court for 1998. It is covered by the Geneva Conventions of 1949. However, the perpetrators may be tried according to Iraqi laws under the principle of judicial complementarity between the national and criminal judiciary.

THE LEGAL CONTROLS FOR THE INDECENT ASSAULT OFFENSE USING ELECTRONIC MEANS BY JORDANIAN LEGISLATION

The significant progress in the field of information technology has reduced the distances between individuals and created a digital society that has effectively contributed to the development of societies and made the world more flexible and simple; however, the rapid growth of information technology has been met with negative attitudes by the misuse of this technology, including the infringement of the protection rights of individuals by committing various cyber offenses, including the offense of indecent assault using electronic means, accordingly, the Jordanian Penal Law will deal with this crime in consultation with the Jordanian Cybercrime Law. Therefore, the applied approach was followed in this study. As a result, it came out with several results and recommendations, the most important of which is the need for the Jordanian legislators to intervene with a legal text that defines acts and forms of conduct in the small offense of indecent assault and sets its punishment to prevent conflict and by the principle of "nullum crimen, nulla poena sine lege."

Prawnokarna ochrona drzew

Penal law protection of trees The article presents criminal law provisions that penalize the destruction or damage of trees. Only some of them protect trees as an essential element of nature. Other provisions primarily protect property, which includes trees as part of real estate. The analysis carried out in the study found that the legal protection of trees largely depends on the location where the tree grows. Some regulations apply to trees growing in forests, others to trees located in protected areas such as national parks, and others to trees located, for example, along the roadside. The study also presents the problem of the classification of a certain factual state and the conjunction of regulations. In many cases, the classification as a crime or a misdemeanor will be determined by whether a specific behavior resulted in substantial damage, which is an evaluative criterion. Also addressed is the problem of wobbler offenses, including the difficulty of determining the value of stolen timber or the amount of damage when a tree is destroyed or damaged.

International Criminal Law Perspectives on Artificial Intelligence in Ukraine: between the war and legal reformation

In late 2021 – early 2022 (before Russian war aggression against Ukraine), the oldest criminal law non-governmental organization International Association of Penal Law (AIDP-IAPL, Paris, France) asked the Ukrainian National Group to answer the most important questions about artificial intelligence in the context of International Criminal Law and International Humanitarian Law. In this regard, a subgroup was created and four scientists worked together in collecting material, searching for local legal acts that regulate this sphere in Ukraine, and searching for precedents for the use of artificial intelligence.
 The solution to the issue of criminal responsibility for the use of artificial intelligence in Ukraine in the context of the preparation of the new Criminal Code of Ukraine by the Law Reformation Commission of Ukraine under the President of Ukraine becomes important and promising. Such criminal-law approaches to solving this problem may be on the borders of criminal liability for individuals (operators), legal entities (plants and suppliers), as well as states that implement them in peacetime or wartime with a criminal (terrorist) purposes.

ОТ СПЕЦИАЛЬНОГО КУРСА ТЮРЬМОВЕДЕНИЯ К НАУКЕ УГОЛОВНО-ИСПОЛНИТЕЛЬНОГО ПРАВА: НАУЧНОЕ НАСЛЕДИЕ НИКОЛАЯ АЛЕКСЕЕВИЧА СТРУЧКОВА

The article briefly presents some biographical data of the outstanding legal scientist of Russia, Honored Scientist of the RSFSR, Honored Worker of the Ministry of Internal Affairs of the USSR, Major General of the Internal Service Struchkov Nikolai Alekseevich, Doctor of Law, Professor, organizer of departmental (Ministry of Internal Affairs of the USSR, Ministry of Internal Affairs of Russia) legal education. Some provisions of his works relating to criminal, correctional labor, and penal enforcement law are presented. His contribution to the development of the general theoretical foundations of the science of correctional labor law, which influenced the formation of methodological approaches to the formation of general and particular theories, the allocation of correctional labor law as an independent branch of the law of legal science, the expansion of the subject covering the legal regulation of the execution of all types of criminal penalties, the role of morality and morality in their implementation. His merits in the development of correctional labor (penal enforcement) legislation, the main directions of penal enforcement policy, its role in the fight against crime are presented.

Reform regulations and laws in the Ottoman Empire 1861-1839 AD

The Ottoman Empire witnessed a reform movement in which some of the sultans of the Ottoman Empire contributed, whether in moving the reform process or supporting the reformers who had the largest role in these reforms. The research reviewed the reformers in the state and opponents of reforms and the lines of Kul Khanna and Humayun and the factors driving their issuance and other reform laws and the new law of 1851 AD and the penal laws of the year 1858 and the Code of Judicial Procedure, then the judiciary and courts and then the new administration in the era of organizations.

Irish Literature in Transition, 1700-1780, ed. Moyra Haslett

<i>Irish Literature in Transition, 1700-1780</i>, ed. Moyra Haslett

The Implementation of Islamic Penal Law in Brunei Darussalam and International Society

This article discusses the application of the shari'a penal code in Brunei Darussalam, in the Brunei institutionalization called Perintah Kanun Jenayah Syariah. The research in this discussion using qualitative methods with descriptive analysis techniques. Brunei Darussalam inaugurated the punishment of the shari'a crime on May 1, 2014, and applied in 3 stages; the stages imposed the criminal penalty in the level of violations and sanctions from mild to severe. The reaction o fthe international community can not be avoided because the punishment concerns Human Rights, which became a hot issue after the cold war. The response of oral and written censure in electronic media and mass media has harmed the government and the image of the Brunei sultanate family. Brunei state has carried out various actions so that the condition will not cause any protracted defect and sharia law will be implemented.

耐字考

The etymological interpretation on the character Nae(耐) in the authoritative dictionary Xuewenjiezi(說文解字) is not clear and accurate because it is based contemporary concept of penal laws. Not only Xushen(許愼)’s interpretation in Xuewenjiezi but also others including Duanyucai(段玉裁)’s can be said almost anachronistic. The largest reason of this is that traditional commentaries did not know the existence of oracle bone and bronzeware scripts. This paper is to try an history-anthropological interpretation on the Character Nae(耐) by emulating the example as shown in the pioneering etymology dictionary by Shirakawa Shizuka(白川靜). The conclusion of this essay is that firstly Nae(耐) is an reflection of the ritual ceremony for rain by the magician who shaved his head and second the meaning of shaving his head is a kind of sympathetic magic praying for fertility which is commonly seen through the ancient agricultural world as proved by the classic of anthropology The Golden Bough.

UWAGI DO PROJEKTU NOWELIZACJI KODEKSU KARNEGO WYKONAWCZEGO Z 29 PAŹDZIERNIKA 2021 R.

The authors refer to several aspects of the most recent proposal to amend the Executive Penal Code, published by the Ministry of Justice in autumn 2021 and widely consulted as part of the legislative process. The draft is a voluminous document, 52 pages long, and covers a wide range of issues with varying degree of detail. The article is not intended to offer a comprehensive analysis of the whole project – we confine ourselves to a few threads that, in our opinion, are the most important, as well as require commentary due to their possible consequences for the system of penal executive law and the protection of the rights of persons deprived of their liberty. These are the issues related to the implementation of sentences in the electronic monitoring system, the problem of complaints and judicial control in enforcement proceedings, the institution of “preventive measures” in penitentiary institutions, principles of transferring offenders sentenced to life imprisonment to semi-open and open institutions, authorization of the Minister of Justice to issue a regulation on determining the surface area of living cells, modification of the content of Art. 117 of the Penal Code as a consequence of the decision of the Constitutional Tribunal concerning the treatment and rehabilitation of convicted addicts and the principles of functioning of psychiatric institutions with reinforced and maximum security.

Runse hongye: Hanshu wenben de xingcheng yu zaoqi chuanbo

Runse hongye: Hanshu wenben de xingcheng yu zaoqi chuanbo

THE CRIMINAL LIABILITY FOR VIOLENCE ACTS THAT OCCUR DURING SPORTS GAMES IN THE JORDANIAN LEGISLATION: THE CONSIDERATENESS OF THE SPORTS GAMES RULES

The research cured the issue of the criminal liability for acts of violence that occur during sports games in Jordanian legislation, where it highlighted the fact that, in the Jordanian Penal Law, the Jordanian legislator authorized cases of violence that occur during sports games if the rules of the sports game are observed, and this considerateness was treated as a reason for justification, whereas the research dilemma lies in the lack of legal provisions for the legal effect of misuse of sports games. The research concluded with many results and recommendations, the most important of which is the need to add new legal provisions to the Penal Law that include the legal impact of the misuse of sports games and demonstrate the cases of infringement of the norms and rules of sports and the extent of the criminal intent of some participants in the sports game, in addition to an indication of the penalty limit imposed on cases of infringement of the right established under the provisions of the law.

The effectiveness of the Brazilian prison system in fulfilling the social function of punishment according to the Brazilian penal law

This article criticizes the effectiveness of the Brazilian prison system in fulfilling its social function. In order to do so, it engages in a historical journey from the origin of penalties in the Ancient Age, Middle Ages, Modern Age until the present day, using as a guide the recognized works of Michel Foucault and other scholars who share the same Foucauldian principles. The relationship between prison and power that begins the text is mirrored throughout its content in order to solidify the understanding that the prison system reproduces, from one society to another, over time, the same model of repression. The contradictions between the country's legislation on the execution of the penalty and the system's compliance with it constitute the crux of the article, which postulates for a rich and unprejudiced debate with the objective of finding solutions to eliminate the deficits between theory and practice. At the end, the article presents three possible solutions to reduce prison overcrowding, which is considered one of the main problems that deepen the degrading condition of prisoners in terms of human dignity.