Penal Provision Research Articles

중대재해처벌 등에 관한 법률 시행에 따른 사회복지조직의 대응방안

The Serious Accidents Punishment Act was expanded to apply to all workplaces with five or more employees on January 27, 2024. This paper examines the major legal issues surrounding senior employment support agencies, especially senior clubs, which are social welfare facilities particularly vulnerable to major accidents, and proposes organizational countermeasures for preventing major accidents. To this end, this paper analyses the main contents of the Serious Accidents Punishment Act through academic literatures, and reviews various legal principles and key issues related to the implementation of the Act on senior clubs through the case laws. This paper aims to seek effective preventive measures and responses to the accidents that occur in senior clubs. The research revealed that the characteristics of senior clubs include continuous increasing trend in the number of elderly participants in senior job programs, full-time employments more than three hundred employees, various types of business operations such as public service, social service, and private business, and continuous occurrence of dangerous accidents. The key issues of the Serious Accidents Punishment Act relevant to the senior clubs are identifying an employee with legal responsibility, types of business subject to the Act, establishment of a dedicated occupational health and safety board appropriate to the type of business, a joint penal provision, and punitive damages. This paper proposes the following responsive measures for senior clubs in response to the implementation of the Act; changing employees’ perspective towards the Serious Accidents Punishment Act, building a health and safety management system reflecting characteristics of senior clubs, utilizing scientific risk management techniques in establishing a health and safety management system and support and management from the Ministry of Health and Welfare as well as local governments.

사회복무요원과 정치적 표현의 자유에 대한 연구

Through the 2019 Heonma 534 Decision in the Constitutional Court’s Sentence on Nov. 25, 2021, it made the unconstitutional decision as saying of violating the freedom of political expression and the freedom of association in the claimant, a public service worker, because of being contrary to the principle of clarity, etc. regarding the section about 'act with political purpose such as joining other political organizations out of Article 33, Paragraph 2, Text No. 2 in the Military Service Act (amended by Act No. 11849 on June 4, 2013). Here, the aim was to consider concerning the judicial decision made by the Constitutional Court in relation to this case focusing on the guarantee of the freedom of political expression in social service personnel performing mandatory military service and on its limitations in reference to this case. First of all, through the 2016 Heonma 252 decision in the sentence on Oct. 27, 2016, the Constitutional Court has already made the decision of constitutionality as for ‘whether or not the freedom of the election campaign’ in a public service worker in the same article with object to adjudication. Based on this decision, it clearly identified that a public service worker has the public status equivalent to that of a public official as a person of performing public duty and has the political neutrality in light of its position and duty, along with the meaning of a public service worker. In sequence, through 2016 Heonma 252 that is the decision of this case, it examined with regard to restricting ‘political party’ affiliation out of Article 33, Paragraph 2, Text No. 2 in the Military Service Act as the article with object to adjudication. There was also an objection that the complete ban on the political party membership goes against the principle of excess prohibition in consideration of what the claimant in this case is a social service worker and of the characteristics of the duties in public service workers. However, taking into account the characteristics of the status in social service personnel fulfilling their military service obligation and the relationship with other military service performers, it agrees to what the Constitutional Court's decision as saying of not infringing on the freedom of political expression and the freedom of association is reasonable even if applying the principle of excess prohibition, which is the standard for examination. And then, it observed carefully concerning ‘Act with political purpose such as joining other political organizations, etc.’ out of Article 33, Paragraph 2, Text No. 2 in the Military Service Act as the article with object to adjudication in 2019 Heonma 534 that is the decision of this case. Like modern society, guaranteeing the freedom of political expression, which is the basis of democracy, is an important right that must be assured preferentially in the relationship with other fundamental rights, should be deliberate when trying to limit these rights, and needs to be clearer in the case of penal provision. In this sense, ‘other political organizations’ and ‘act with political purpose’ violate the principle of clarity and may not be definite even by the supplementary interpretation of the law enforcer. Thus, the Constitutional Court's decision on unconstitutionality was confirmed to be a desirable direction even for laying down a more accurate regulation.

The right to collective action in Belgium

The right to collective action in Belgium1 Jan Buelens (bio) Although the right to freedom of assembly and association has historically been labelled as rather inviolable in Belgium, the coming into office of a right-wing government in 2014 heralded a shift to the detriment of this right. Since then, restrictions on collective action have been piling up, by law and by case-law of the courts. At this moment, a ban on demonstrations is also being debated. Many social and democratic achievements of the labour movement are under increasing pressure. This contribution seeks to provide a brief overview of the contemporary attacks on the right to collective action in Belgium, after discussing how this right has emerged and evolved in Belgium. Historical context To understand the legal framework of the right to collective action in Belgium, we need to start with the Belgian revolution of 1830 and the Constitution of 1831. As a result of uprisings, in which the working class played an important but neglected role, the bourgeoisie took control of power and broke with the "Ancien Régime". Civil and political rights were enshrined in the Constitution, among which the freedom of association. However, the bourgeoisie never wanted to provide for the working class, but solely for themselves,. The promised freedom was thus in fact for the factory owners. In order to consolidate its own power, the bourgeoisie made use of the most powerful legal instrument at his disposal – the penal code. In flagrant contradiction with the Constitution, this Napoleonic Code provided for a prohibition of association, particularly in case of demanding higher wages. It was punishable as well to call for lower wages, but the bourgeoisie had three ways to ensure that factory owners were never sanctioned: the provision had a slightly different wording, the judiciary was at their side, and, of course, employers would collude more covertly than the working class. The latter would be heavily sanctioned for taking the streets, with sentences ranging from a fine to imprisonment. Bullet shots were used to curb demonstrations. The nascent labour movement understood that it had to work for the abolition of this penal provision, as it touched its very existence. Hence, from the beginning, its action was an amalgamation of social and democratic demands: the 8-hour working day, universal suffrage, and the abolition of the ban on association. In 1867, the ban was abolished, but another penal provision saw the light of day. The infamous Article 310 prohibited all assembly near factories, thus making strikes in any form impossible. It was not until 90 years after the creation of Belgium, in 1921, that this article was abolished. The 1921 tipping point came amidst a lot of pressure. The general strikes in the years before the war had left their marks in the collective memory. After the First World War, Europe experienced revolutionary uprisings. In light thereof, universal (male) suffrage and the 8-hour working day were introduced. Another law of the same day recognised the freedom of association and trade union freedom. From then on, striking was no longer a criminal offense. But even though 24 May 1921 was a milestone, strikers remained at risk of seeing their employment contract being terminated and hence being fired. Moreover, the police would not shy away from using heavy-handed methods to crack down on pickets, even after the trade union freedom was enshrined as a fundamental right in international treaties after World War II. This would not change until 1981. After the dismissal of a union official in an Antwerp petroleum company, a weeks-long solidarity strike broke out in the entire sector. The Court of Cassation subsequently ruled: dismissal for strike reasons is not allowed. It was the last great achievement of the labour movement with respect to collective action. Contemporary attacks on the right to collective action After World War II, the workers' movement was quite strong and managed to achieve great social progress. This is when individual and collective labour law were conceived. However, the balance of power shifted toward capital after the economic crisis in the 1970s and with the rise of neoliberalism. The consequences of this shift did not occur right...

Police Revealed a Case of Necrophilia in Dhaka, Bangladesh – Legal and Psychiatric Issues

In November 2020, the Criminal Investigation Department of Bangladesh Police revealed in front of the media that a 20-year old young male allegedly had intercourse with female cadavers under postmortem examination inside the mortuary while working as an assistant to the official mortuary attendant in a medical college in Dhaka, Bangladesh. The subject of sex is still a taboo in the country, and an offence as bizarre as necrophilia is even beyond the imaginative capacity of majority of the population. However, this case of necrophilia has stirred the sentiment of the people and at the same time thrown challenges to the legislation and forensic psychiatry service of the country that we would like to focus on. There exists no penal provision in the country which criminalizes such “particular act of necrophilia”. However, we are interested to observe the consequences. Besides, no information was made available on psychiatric evaluation of the offender while arresting and sending him to the jail. We recommend strengthening of forensic psychiatry as a discipline to operate psychiatric evaluation in such cases which is crucial for legal proceedings. Moreover, making amendments to the existing laws should be considered to encompass this type of offence.
 CBMJ 2021 January: vol. 10 no. 02 P: 111-114

Odpowiedzialność karna autorów fake newsów wzbudzających w opinii publicznej poczucie zagrożenia w świetle art. 224A Kodeksu Karnego

The SARS-CoV-2 virus epidemic in 2020 was accompanied by the spreading of false and misleading information, the so-called fake news, on a growing scale. This was done primarily through the Internet with the use of social media, instant messaging, but also websites, including those imitating Internet portals widely recognized as reliable. The disinformation carried out in the manner described above, combined with the growing number of people infected with the SARS-CoV-2 virus and deceased as a result of it, constituted no less than the virus itself a threat to society, arousing its anxiety and sometimes even panic. In response to this new threat, the authorities of individual countries have made efforts to counter it with the use of existing and new criminal laws. In the case of Poland, representatives of some public institutions informed about the possibility of holding the authors of fake news criminally liable under art. 224a of the Criminal Code. The author of the article attempts to answer the question whether the indicated penal provision can in fact be used to counteract the more and more frequent dissemination of misleading information. For the above purpose, he analyzes selected cases of fake news in terms of the possibility of their authors fulfilling the criteria of a prohibited act under Art. 224a of the Criminal Code.

Enforcement Orders Under the Prevention of Women from Domestic Violence Act, 2005 - An Overview of the Conflicting Decisions of High Courts

The attempt in present paper is to take note of the conflicting judgments of different High Courts on the question of maintainability of the Complaint under Section 31 (penal provision) of the Prevention of Women from Domestic Violence Act, 2005 for violation of orders passed under such Act. The conclusion refers to the 136th Law Commission Report dealing with the conflict of High Court Decisions on the identical provision of identical central law and opine that had the recommendation been acted upon, the conflicting decisions of different High Courts on the question of maintainability of the complaint under Section 31 of DV Act, could not have arise and in case such conflict was noted, the matter could have been resolved by the Supreme Court on order of reference by the High Court without waiting for a party to carry the matter in appeal to the Supreme Court. And the citizens would have been protected from deprival of equality of treatment under the very same law.

A Research on the Inclusion of a Penal Provision on Criminal Negligence in the Act on Fire Prevention and Installation, Maintenance, and Safety Control of Firefighting Systems

A Research on the Inclusion of a Penal Provision on Criminal Negligence in the Act on Fire Prevention and Installation, Maintenance, and Safety Control of Firefighting Systems

Evolution and Current Status of Corporate Social Responsibility Regulation in India

The involvement of business firms in the growth and developmental activities in order to internalise the society's resource loss is termed as Corporate Social Responsibility (CSR). The present study examines the evolution of CSR regulations and its present status in India. India is the first country to mandate CSR spending by the corporate firms with the help of legislation, section 135 of Companies Act, 2013. Even though the act got stronger by the introduction of more strict regulations during the amendment in 2019, it lacks specific penal provision for non-compliance. Currently, the CSR compliance is 40 per cent. The aggregate CSR amount of ₹ 711.9 billion were spent in 14 different development sectors over a period of five years. The education sector received highest aggregate amount and accounted for 38 per cent of aggregate spending under CSR activities. On an average, over the last five years, number of CSR non-compliant companies has increased at the rate of 6.72 per cent and the data clearly points out the requirement of strict penalty for CSR non-compliance. The transparency in CSR disclosure and proper evaluation of CSR activity outcome is vital to understand the drawbacks which would help in refining existing regulations and developing a better enforcement strategy to obtain desired outcomes.

УГОЛОВНО-ПРАВОВОЕ ИЗУЧЕНИЕ ПОПУСТИТЕЛЬСТВА В ПРЕСТУПЛЕНИИ, КАК ПРИЗНАКА, ХАРАКТЕРИЗУЮЩЕГО СТЕЧЕНИЕ НЕСКОЛЬКИХ ЛИЦ В ОДНОМ ПРЕСТУПЛЕНИИ

A criminal and legal analysis of the objective and subjective signs, characterizing the connivance to the crime is made in the publication. The study found that connivance in a crime may be characteristic of various criminal law institutions, such as implication in a crime and complicity in a crime. In addition, the presented arguments show that connivance as a criminally punishable act may be associated with non-interference with unlawful activities that do not constitute a crime. The analysis shows that connivance in a crime can have a selfish purpose. It is noted that connivance in a crime is significantly different from other forms of implication in a crime, namely concealment of a crime and failure to report a crime. The subject of connivance in a crime is a person endowed with special powers to prevent, document and register crimes or offences. The article discloses that there is no special penal provision in the current Act of Criminal Responsibility of the Russian Federation that criminalizes it. The exception is the disposition of Art. 290 of the Criminal Code of RF, which contains an indication of connivance as a sign characterizing the objective side of receiving a bribe.

PENAFSIRAN HAKIM TERHADAP KETENTUAN PIDANA MINIMUM KHUSUS DALAM UNDANG-UNDANG TINDAK PIDANA KORUPSI

The spirit of the rule of law against corruption which is considered as an extraordinary crime that resulted in the occurrence of social inequality , the economy , the loss of faith in government and a variety of other problems that led to the birth of Law No. 31 of 1999 in conjunction with the Law No. 20 Year 2001 About Follow Corruption. The interesting thing about the formation of the Anti- Corruption Act is a criminal provision in the formulation of minimum deliknya against perpetrators of corruption . It is certainly different from the general criminal provisions in the draft Criminal Law (Penal Code) which is more familiar maximum penal provision . The results showed that the minimum pinadana special provisions in the law of corruption can be breached so long as the judge has the legal resening or residenti proper ratio to a corruption case by looking at the size scale of the corruption case with consideration and interpretation of the patterns perspective, social - justice, moral justice and community justice decision was taken to drop the minimum punishment. Criminal punishment under the criminal provisions of the special minimum in some court decisions can be made by several criteria into consideration the provisions of the criminal judges deviate minimum, the criteria of the element of state assets or state economy as a result of the acts of corruption tiundak and criteria of the role and position of the defendant in acts of corruption. Keywords: Interpretation of judges , a special minimum criminal , corruption

Application of Joint Penal Provision of Precedents Related to Child Abuse Cases in Child Care Centers and Its Implications

Application of Joint Penal Provision of Precedents Related to Child Abuse Cases in Child Care Centers and Its Implications

A Study on Joint Penal Provision of Japan in view of Comparative Jurisprudence

A Study on Joint Penal Provision of Japan in view of Comparative Jurisprudence

아시아의 경관계획제도 비교 및 경관교육 추진

This study is to compare and analyze the current status of landscape planning system in Korea and Japan by establishing the landscape database utilizing geographic information system(GIS). Specifically, landscape laws and their ordinances enacted in Korea and Japan and their implementation cases were compared to identify the characteristics. As of December 1, 2010, landscape administrative bodies are composed of 472 local governments in Japan while as of March 1, 2010, they are 83 local governments in Korea. The landscape laws in Korea and Japan have a similar structure overall. However, there are no supplementary provision and penal provision in the Korean landscape law whereas there is landscape district provision in the Japanese landscape law. The results of this study would be used as a base for building up the landscape planning and policy in the East Asian region.

Optimal Warning Strategies: Punishment Ought Not to Be Inflicted Where the Penal Provision Is Not Properly Conveyed

Law enforcers frequently issue warnings, as opposed to sanctions, when they detect first-time offenders. However, virtually all of the law and economics literature dealing with optimal penalty schemes for repeat offenders suggest that issuing warnings is a sub-optimal practice. Another observed phenomenon is the joint use of warnings and sanctions in law enforcement: person A may receive a sanction, whereas person B is only warned for committing the same offense. This situation can be explained through the use of hybrid warning strategies, a concept not yet formalized in the law enforcement literature, where law enforcers issue warnings to and sanctions to of first-time offenders. This article uses a two-period optimal deterrence model to provide a rationale as to why it may be optimal to issue warnings. When uninformed individuals are present and their punishment is assumed to be costly, there is a trade-off between such costs and reduced levels of deterrence. Depending on the cost structure associated with the punishment of uninformed individuals, warning strategies, including hybrid ones, may be optimal. A secondary contribution of this article is to point out that lack of information concerning laws may lead to optimal escalating punishments for repeat offenders.

Analysis on the Amendment of Joint Penal Provision and the Application of Clause 2, Article 1 of Criminal Law

Analysis on the Amendment of Joint Penal Provision and the Application of Clause 2, Article 1 of Criminal Law

Analysis on the Joint Penal Provision and the Level of Punishment Imposed upon the Offender - Focused on Joint Penal Provision in the Health and Safety at Work Act -

Analysis on the Joint Penal Provision and the Level of Punishment Imposed upon the Offender - Focused on Joint Penal Provision in the Health and Safety at Work Act -

Seperation of statutary punishment of an Individual and an Organization in the Joint Penal Provision

Seperation of statutary punishment of an Individual and an Organization in the Joint Penal Provision

Optimal Warning Strategies: Punishment Ought not to be Inflicted where the Penal Provision is not Properly Conveyed

Law enforcers frequently issue warnings, as opposed to sanctions, when they detect first time offenders. However, virtually all of the law and economics literature dealing with optimal penalty schemes for repeat offenders suggests that issuing warnings is a sub-optimal practice. Another observed phenomenon is the joint use of warnings and sanctions in law enforcement: person A may receive a sanction, whereas person B is only warned for committing the same offense. This situation can be explained through the use of hybrid warning strategies, a concept not yet formalized in the law enforcement literature, where law enforcers issue warnings to x% and sanctions to (100-x)% of first time offenders. This paper uses a two-period optimal deterrence model to provide a rationale as to why it may be optimal to issue warnings. When uninformed individuals are present and their punishment is assumed to be costly, there is a trade-off between such costs and reduced levels of deterrence. Depending on the cost structure associated with the punishment of uninformed individuals; hybrid, pure or no-warning strategies may be optimal. A secondary contribution of this paper is to point out that lack of information concerning laws may lead to optimal escalating punishments for repeat offenders.

The Attrition of Capital Punishment Worldwide as the American Law Institute Withdraws its Model Penal Code Provision Recommending how to do it

The Attrition of Capital Punishment Worldwide as the American Law Institute Withdraws its Model Penal Code Provision Recommending how to do it

A Study on Joint Penal Provision of Construction Criminal Law

A Study on Joint Penal Provision of Construction Criminal Law