Principles Of Criminal Law Research Articles

Development of the Principle of Legality in Indonesian Criminal Law

Legality is the oldest principle of criminal law and is found in almost all national criminal laws worldwide. The existence of this principle is to protect citizens from the arbitrariness of the authorities. The principle of legality in criminal law has a central role in ensuring legal certainty for society because this principle requires the existence of written regulations regarding a criminal act to carry out a punishment. The aim is to understand the principles of legality according to criminal law in Indonesia. The research used normative juridical methods with data collection methods through a literature study. The principle of legality in Indonesian criminal law is a fundamental principle. The principle of legality in criminal law is essential to determine whether or not a criminal law regulation can treat a criminal act that has occurred. Applying the principle of good legality in national criminal law is not rigid, mainly to tackle crimes against human rights.

Prohibition of corporal punishment and alternative justifications for the lawful use of force against children in Australia

AbstractThe prohibition of corporal punishment in Australia will require reform of the criminal law of assault to abolish defences in each Australian state and territory that permit the use of force on children for the purpose of punishment. This paper highlights the anomaly of those defences by undertaking a comparative doctrinal analysis with other Australian criminal law principles that excuse the use of force by parents and caregivers, including force for the purpose of management and control, and physical contact that is accepted by the community as part of everyday life. This comparison highlights the persistence in the corporal punishment defences of outdated notions of parental rights and authority over children, in contrast to broader trends in the law toward recognising that parents exercise responsibilities in the best interests of their children. In addition, this analysis confirms that abolition of Australian defences for corporal punishment will not criminalise parents and caregivers using force for purposes other than punishment.

Indonesian Criminal Code, Living Law and Control in Law Enforcement in Indonesia

Introduction: The inclusion of the Living Law concept in the latest Criminal Code as a law that lives in society.Purposes of the Research: This paper analyzes the dialectic of legal certainty according to the principle of legality with living law as the principle of substantive justice in criminal law reform, from the perspective of law as a mechanism of social control and its influence on the dynamics of criminal law enforcement in Indonesia.Methods of the Research: This research uses a normative legal research model. Data collection is done through secondary data searches in the form of primary legal materials and secondary legal materials that are relevant to the object of the problem being studied. The approach used in the analysis is juridical-normative and then elaborated with a sociological approach through social science theories.Results of the Research: The results of the research on the accommodation of living law as a basic principle of criminal law have led to a dialectic between the principle of legal certainty and the principle of substantive justice. Living law is a form of law that is not codified like state law, but rather leads to awareness and cooperation among individuals in a community, so that the function applied is to control over community behavior, so that law enforcement mechanisms run naturally in order to maintain order and public morality.

THE NATURE AND AMBIT OF THE INTIMIDATION OFFENCE S v White 2022 (2) SACR 511 (FB)

The offence of intimidation has been associated with controversy, particularly because of the historical link between the Intimidation Act (72 of 1982) and the legislative machinations of the apartheid regime. In the words of Gamble J, the Act may be regarded as “a piece of apartheid order legislation introduced at a time of increasingly repressive internal security legislation designed to criminalise conduct, largely in the field of resistance politics” (Sandlana v Minister of Police 2023 (2) SACR 84 (WCC) par 34). The nature and ambit of the intimidation offence has once again come under scrutiny in the recent case of S v White (2022 (2) SACR 511 (FB)). The decision in this case is examined here in the context of a general assessment of the offence. The offence can now only be committed by contravening section 1(1)(a) of the Act, as the Constitutional Court has struck down the section 1(1)(b) provision (as well as section 1(2)) as unconstitutional in Moyo v Minister of Police (2020 (1) SACR 373 (CC)), a development confirmed by the amendment of the Act by the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Act (23 of 2022). (Some are of the view that the Constitutional Court could have gone further (Burchell Principles of Criminal Law 5ed (2016) 593–594).) However, for the purposes of the discussion that follows, it is useful to cite the full section 1(1) provision prior to amendment.

AXIOLOGICAL SIGNIFICANCE OF THE PRINCIPLE OF HUMANISM IN CRIMINAL LAW

Criminal law principles are the conceptual basis for the formation of an effective criminal law. In thecurrent Russian legislation, the principles have received normative consolidation, which is positive, theprinciples themselves in this regard should be the basis for the formation of criminal law norms. The authorof the work, using the integration method, studies the principle of humanism, both in general scientificand in a narrowly sectoral meaning, explores the axiological meaning of the principle of humanism. Theintegrative method in scientific research allows us to consider legal phenomena, processes, objects of legalregulation on the basis of methodological approaches of other sciences, not only the humanities, but alsousing mathematical methods, techniques of cybernetics. The article analyzes the criminal-legal significance of the principle of humanism from the perspective of the ratio of punishment and correction, as well as thepriorities of the implementation of the principle under consideration. The author identifies independentelements by means of which the axiological meaning of the principle of humanism is realized in modernRussian criminal law. Such elements include — content, structural, model.

Advantages and disadvantages of long-term penalties – considerations in connection with the removal of the penalty of 25 years of imprisonment from the Penal Code

In 2022, another attempt at a comprehensive amendment of the Penal Code was submitted to the Sejm. One of the proposed changes is the elimination of the penalty of 25 years imprisonment and its replacement with a term imprisonment with an extended upper limit from 15 to 30 years. This project is an opportunity to conduct an in-depth analysis of the sentence of 25 years imprisonment, paying particular attention to its advantages and disadvantages. It is also a chance for a comprehensive assessment of long-term imprisonment from the perspective of the function of criminal punishment and the principle of proportionality, which is a new element in Polish literature in this field. The author hypothesizes that neither leaving the penalty of 25 years imprisonment nor extending the term of imprisonment to 30 years is a correct solution from the point of view of the functions and principles of criminal law. Then he tries to prove its validity, using research methods adopted in jurisprudence: formal and dogmatic analysis of legal provisions, as well as a critical review of literature and judgements.The conducted research confirmed the hypothesis. In the author's opinion, long-term imprisonment may be negatively assessed from the perspective of the constitutional principle of proportionality. Instead of announcing postulates that provide for an increase in punitive criminal law by introducing more repressive penalties, it is worth considering taking the opposite actions, aimed at easing penal repression and focusing on effective resocialization. According to the author, the article may be a contribution to a discussion on changes in criminal policy, thus contributing to the development of criminal law and executive criminal law.

The Meaning of the Principle of Material Legality in the Reform of Indonesian Criminal Law

The principle of legality is a very important principle in criminal law. The principle of legality plays an important role in the enactment of material criminal law rules and is the basis for the validity of acts categorized as criminal acts. The purpose of this study is to determine the meaning of the principle of material legality in the reform of Indonesian criminal law. This article was prepared using the normative legal research method. The results showed that the reform of criminal law with the enactment of Law Number 1 Year 2023 on the Criminal Code did not only change the formulation of the principle of legality substantially, but changed the formal principle of legality which was originally far from the sense of public justice, expanded into a material principle of legality that better guarantees the sense of public justice. This article will discuss the material legality principle as a renewal of the formal legality principle, which aims to expand the reach of the legality principle in providing protection to the community from the negative consequences of criminal acts.

무죄추정원칙에 비추어 본 현행 구속자석방제도의 문제점 및 개선방안

Our Constitution stipulates the principles of due process (Article 12 (1)) and the presumption of innocence (Article 27 (4)) as in order to maximize the freedom of the person, which is a prerequisite for guaranteeing all basic rights. In particular, the principle of presumption of innocence is the principle that in a criminal trial, a suspect or defendant should be treated as innocent until a guilty verdict is finalized, and the disadvantages should be limited to the minimum necessary. Therefore, since the principle of presumption of innocence is a principle that limits the restraint of the person itself, investigation and trial in criminal procedures are, in principle, required to be conducted in a state of detention. Accordingly, personal restraint in criminal procedures should be exceptionally used only in cases where it is deemed impossible to achieve the purpose of criminal proceedings because it is impossible to effectively respond to crimes by means other than restraint. If alternative means other than restraint are possible, a system should be prepared to select alternative means according to the principle of proportionality.
 Based on these constitutional values, our Criminal Procedure Law has established the principle of investigation without detention (Article 198 of the Criminal Procedure Act) and trial without detention in the operation of the person restraint system. Regulations on the system of personal detention and release of persons under arrest have been revised. However, looking at the reality of the operation of the arrest and release system, it is questionable whether these institutional devices are properly contributing to the realization of constitutional values and principles of criminal procedure law. For example, there is not much difference in the rate of release by adjudication against detention compared to before the introduction of the arrest warrant review system, and the operation of the bail system has also increased the possibility of realizing the principle of trial without detention by introducing various conditions for bail after the 2007 revision of the Criminal Procedure Act. Despite this, the court arrest rate has increased, and the rate of permission for bail has decreased rather than before the introduction of various bail conditions. This trend in statistics leads us to infer that the detention review and bail system, contrary to the purpose of the revision efforts to lower the arrest rate, do not function as practical control means to curb unnecessary detention and prevent the prolongation of detention. Therefore, it is necessary to find a plan that can actually work as an ex post means to realize the constitutional value of the current detainee release system.

СТАН РОЗРОБКИ КРИМІНАЛЬНО-ВИКОНАВЧИХ ЗАСАД МЕДИКО-САНІТАРНОГО ЗАБЕЗПЕЧЕННЯ ЗАСУДЖЕНИХ ДО ПОЗБАВЛЕННЯ ВОЛІ В УКРАЇНІ

The article defines the state of the criminal and executive principles development of medical and sanitary support of prisoners sentenced to imprisonment in Ukraine. It was found that national penitentiary scientists did not pay enough attention to this issue, since the study of the medical and sanitary support of convicts in places of imprisonment was not conducted. Therefore, during the research, it is necessary to eliminate this problem, since the medical and sanitary support of prisoners sentenced to imprisonment in Ukraine is: first, a component of serving a criminal sentence; secondly, it is their health, which is important after the convicts have served their sentence for the committed crime, in order to ensure effective social adaptation; thirdly, it is a certain part of the reform of the penitentiary system of Ukraine and its transformation into a penitentiary system of a new European model. A number of previously unexplored directions that require in-depth scientific research within the scope of the research subject have been identified, which, in particular, are: – formulation of a methodological toolkit for the study of criminal and executive principles of medical and sanitary support of prisoners sentenced to imprisonment in Ukraine; – research on the origins of the formation and development of the regulatory and legal regulation of medical and sanitary support of prisoners sentenced to deprivation of liberty in Ukraine; – analysis of international legal regulation and foreign experience of medical and sanitary support of prisoners sentenced to imprisonment; – definition of the concept and content of medical and sanitary support for prisoners sentenced to imprisonment; – determination of the place of medical and sanitary support of prisoners sentenced to imprisonment in the mechanism of implementation of the right to health care; – establishing a correlation and clarifying the extent of the influence of the state of health of those sentenced to imprisonment on the change in their legal status; – providing a description of the organizational principles and interaction of authorized subjects regarding the medical and sanitary support of prisoners sentenced to imprisonment in Ukraine; – formulation of proposals for improving the criminal law enforcement of Ukraine and law enforcement practice in the field of medical and sanitary support for those sentenced to imprisonment; – development of the Concept of Reform (Development) of Penitentiary medicine in Ukraine. Key words: state of development, subject of research, science of criminal and executive law, criminal and executive principles, medical and sanitary support of those sentenced to imprisonment.

Pertanggungjawaban Pelaku Tindak Pidana Penggelapan Uang Angsuran Leasing (Studi Putusan Nomor 67/Pid.B/2021/Pn.Met)

The crime of embezzlement, which is regulated in Article 372 of the Criminal Code, is a criminal offense that spans various sectors and is committed by various groups of society. Both low and high levels of society have the potential to commit this crime. One of the important issues is how to deal with the responsibility of the perpetrators of embezzlement of leasing installments. This research using the normative legal research method analyzes Decision Number 67/Pid.B/2021/PN.Met and explored the basis for the judge's consideration in reaching a verdict in the case of embezzlement of leasing installment money. The results showed that in Decision Number 67/Pid.B/2021/PN.Met, the perpetrator of the crime of embezzlement of leasing installment money was proven guilty and violated Article 372 of the Criminal Code. As a result, the perpetrator was sentenced to imprisonment for 1 year and 7 months. The judge's reasoning in this decision involved several factors, including the evidence presented, witness testimony, the testimony of the defendant, the indictment and charges of the public prosecutor, as well as the elements contained in the prosecutor's charges. In addition, the judge's consideration also included aggravating and mitigating aspects of the defendant's actions. The decision provides guidance on how the various elements of evidence and testimony can form the basis of the judge's reasoning in deciding this type of case. In addition, this research underscores the importance of a comprehensive understanding of criminal law and applicable legal principles to ensure fairness in handling similar cases in the future.

Penundukan Diri Non-Muslim dalam Qanun Jinayat Aceh: Penyimpangan atau Pengembangan Asas Hukum Pidana?

This article aims to provide legal logic for the permissibility of choosing criminal law for non-Muslims who commit criminal acts regulated in the Aceh Qanun Jinayat based on one of the legal principles raised (endorsement) as the basis for establishing norms in the qanun in question, namely the principle of submission which is actually not recognized in criminal law. The research data are several decisions of the Syar’iyah Court in Aceh against violations of the Qanun Jinayat committed by non-Muslims. It is assumed that the decisionis a shift in the principles of criminal law. This problem will be analyzed by observing the basic principles of criminal law, including the principles of the application of criminal law and the politics of criminal law. The results of the study showed that from the point of view of the principles of criminal law which is a compelling law, this submission is a deviation, but from a legal-political perspective, because the birth of permissible provisions in qanuns is a political process, where the demand to apply Islamic Sharia which basically only applies to Muslims, then as a softening of the territorial principle non-Muslims are allowed to vote.

Adopsi Nilai dan Prinsip Hukum Pidana Islam tentang Delik Kesusilaan Zina dalam Kitab Undang-undang Hukum Pidana Nasional

This research focuses on the fundamental justification for the policy of inserting Islamic criminal law values into the National Criminal Code, especially regarding the policy of criminalizing the moral offense of adultery and the form of adoption of the said values and principles of Islamic criminal law in the National Criminal Code, particularly on the policy of criminalizing the moral offense of adultery. This is a normative legal research with statutory, philosophical and policy approaches. This research concludes that theoretically (socio-historically based) and juridically (based on the values of the Pancasila philosophy, mainly the first principle and the 1945 Constitution, specifically article 29), the absorption of Islamic criminal law values in the preparation of the Criminal Code is a historical and constitutional right. Values and the principles of Islamic criminal law regarding the moral offense of adultery have not been fully absorbed in the National Criminal Code. Some forms of adoption that have reflected the values and principles of Islamic criminal law are the expansion of the scope of acts criminalized as adultery, the philosophy of prohibiting adultery and the threat of criminal sanctions against adultery. Some Acts that are essentially moral offenses of adultery but are not criminalized as moral offenses of adultery, i.e. rape, prostitution and enjoying pornographic content for oneself.

Peculiarities of the principles of criminal and administrative law during the provision of the right to education in the conditions of the introduction of martial law: legal regulation and international standards

The purpose of the research is to consider the essence of principles of criminal law and the particularities of their implementation under conditions of war. It has been substantiated that the main idea of criminal law principles consists of their systematic, balanced, comprehensive performance in relation to subjects of criminal legal concerns. The mentioned principles apply to law-making and law enforcement, both in peacetime and wartime. The methodological basis of the research is presented as comparative-legal and systematic analysis, formal-legal method, interpretation method, hermeneutic method, and methods of analysis and synthesis. A conclusion has been made about the necessity to observe human rights standards in prosecuting persons who have committed crimes against humanity and have been involved in such crimes. The civilized world must meet civilized standards and ensure security through civilized means.

The Lenient Sentencing of Corruptors from the Perspective of the Judicial Power

The conditional sentences for corruptors are considered too lenient and not in line with the law. However, judges have the freedom to choose the type of punishment and sentencing that suits their discretion because, in the positive criminal law principles in Indonesia, there is the use of alternative criminal sanctions alongside the adoption of a minimum, maximum general, and maximum specific criminal system within each criminal offense. This study is dissected using juridical-normative analysis based on the law. Its aim is to provide criticism of the rationale in deciding a case, thereby ensuring a sense of justice is fulfilled.

Correlation of the principles of criminal law in the conditions of the introduction of martial law

The purpose of the research was to consider the essence of the principles of criminal, administrative law and the peculiarities of their application in conditions of war, considering the case of Ukraine invaded by the Russian Federation. It has been substantiated that the main idea of the existence of the principles of administrative criminal law consists in their systematic, balanced and comprehensive implementation in relation to the subjects of criminal and administrative legal relations. The mentioned principles are used as a support for the elaboration and application of the law, both in peacetime and in wartime. The methodological basis of the research was presented as comparative-legal and systematic analysis, formal-legal method, method of interpretation, hermeneutic method, as well as methods of analysis and synthesis. A conclusion has been reached on the necessity of observing human rights norms in the criminal prosecution of persons who have committed crimes against humanity and have been involved in such crimes. Consequently, the civilized world must comply with international standards and ensure security through legal and legitimate means.

Study on the Application of the Trial in Absentia System for Corruption Offences

Combating corruption crimes is a systematic effort to build China's system for punishing and preventing corruption. In order to respond positively to the call for anti-corruption, the criminal law academia has also launched discussions and debates on the issue of corruption crimes, especially in the context of economic globalization, the means of corruption is more secretive, the amount of corruption is more huge, and the impact on the interests of the country and the people is more far-reaching, more and more corruption offenders begin to take advantage of the loopholes that have been formed temporarily in the international arena to evade the penalties of the Chinese law, in order to better implement the basic principle of self-responsible criminal law. In order to better implement the basic principle of criminal law, how to better pursue the criminal responsibility of fugitive corruption offenders has become the focus of research by many experts and scholars in recent years.

OʻZBEKISTON RESPUBLIKASINING JINOYAT-PROTSESSUAL QONUNCHILIGI TARIXI

This article will consider the history of domestic and foreign Criminal procedural legislation and the peculiarities of conducting criminal cases in a simplified manner. Strategic steps are being taken in the new Uzbekistan to ensure the rule of law, reform the judicial and legal systems, and protect the rights and interests of citizens, who are an actual link to reforms. This provision is also enshrined in the Constitution of the Republic of Uzbekistan, which entered into force on May 1 of this year. As the President of the Republic of Uzbekistan, Sh.M.Mirziyoyev stressed, the updated Constitution should create a solid legal basis and a reliable guarantee of the long-term development strategies of the country and the future well-being of the country and the people as a whole. This article also examines the views and opinions of some legal scholars on the principle of challenge, one of the basic principles of Criminal procedure law, a new institution that is being used with great success today, some aspects of the application of the institute of admission of guilt to the national criminal process, which is a vivid example of simplified criminal proceedings, office work in the first instance, appeals and cassation, record-keeping in repeated cassation, etc., and simplification of criminal proceedings.

Konstrukcja odpowiedzialności zobiektywizowanej (strict liability) w prawie karnym Anglii i Walii na tle polskich uregulowań elementu podmiotowego w strukturze czynu zabronionego

The construction of strict liability has been for years one of the most controversial concepts in the field of substantive criminal law in common law countries. While the very idea of basing the liability of an individual of a repressive nature on a regime based on strictly objective assessments seems to stand in opposition to the principles of criminal law that are fundamental to Western systems, such as the individualization of liability and the principle of guilt, at the same time, the use of the construct discussed may bring about considerable instrumental benefits, especially with regard to the protective function of criminal law. The article discusses the concept of strict criminal liability as developed in the system of England and Wales and presents the position that this concept occupies in relation to the classic for Anglo-Saxon countries, a two-element approach to the structure of a prohibited act, based on the correspondence of both objective and subjective components, and then transfers the considered problems onto the Polish criminal law plane in order to analyse the possibility of adapting an analogous construct in the statutory regulation of the subjective side of a prohibited act. In addition, the article presents the thesis that the advantages of strict liability may support the modification of the national approach towards a partial resignation from the requirements of the presence of a specific subjective element in the psyche of the perpetrator of a prohibited act in relation to all its objective features.

From Crime Scene to Courtroom: Understanding the Processes and Principles of Criminal Law

From Crime Scene to Courtroom: Understanding the Processes and Principles of Criminal Law

A Study on the English Translation of the Penal Code Section of Ta Tsing Leu Lee from the Perspective of Eco-Translatology: A Case Study of the English Translation by Sir George Thomas Staunton

Ta Tsing Leu Lee is an important milestone in China’s legal history. The well-established law code has rich content, including provisions on the basic principles of criminal law, the identification and punishment of various crimes, and judicial procedures. The promulgation and implementation of Ta Tsing Leu Lee promoted the transformation of China’s traditional legal system to a modern one and had a profound impact on later research on criminal law in China. The English version of this legal book translated by Sir George Thomas Staunton was the first attempt by Europeans to translate a whole Chinese legal book, which is of great significance for enriching the research on English translation of criminal law works. In this paper, an in-depth analysis of excerpts from the English translation of the penal code section of the book was conducted using the “three-dimensional transformation” theory of eco-translatology, including the linguistic, cultural adaptation, and communicative dimensions, in order to provide some insights for the English translation of contemporary legal books and their overseas spread.