Principles Of Criminal Liability Research Articles

Zakładowe źródła prawa pracy a legalność sporu zbiorowego

The article argues that where the subject matter of a collective dispute only partially falls within the limits of a legitimate collective dispute, the employer does not have an obligation to enter into negotiations. Taking a different position, that the employer is obliged to negotiate with respect to the elements of the claims that do constitute legitimate subject matter of a collective dispute, as the Supreme Court found in its judgment of 16/03/2022 (II PSKP 47/21), is contrary to the Act on the Resolution of Collective Disputes ,the principles of criminal liability, and the principle of voluntary bargaining recognized in international law. It also carries the risk for the employer that it will not be possible to hold trade union activists acting during such a collective dispute accountable in the future. In addition, the article discusses the possibility for the employer to submit a protective letter to the minister competent for labor matters in order to prevent the appointment of a mediator as a means of legal protection against the continuation of a collective dispute that goes beyond the legitimate subject area of the dispute.

Wpływ błędu organizacyjnegona odpowiedzialność karną lekarza

The article is devoted to the issue of organizational error and it’s impact on the criminal liability of the physician. Basic concepts, such as medical malpractice, due diligence, undesirable medical event are analyzed, and then the issues of the basis and types of physician's criminal liability and the phenomena of organizational errors are discussed. In practice, issues of shortcomings in the organization of work are rarely considered in criminal cases in order to minimize or exclude the physician's fault. Physicians always provides services in specific circumstances and often, even despite acting in accordance with the standard of current medical knowledge and with due diligence, he may not be able to meet the expectations of proper and effective treatment due to organizational reasons beyond his control. Proper collection and assessment of evidence, such as internal regulations of the organization of facilities, regulations, interviews with employees, allow us to reconstruct the reality in which the services were provided and which may affect the criminal liability of the doctor. For errors of an organizational nature, due to the specificity of civil liability, the construction of organizational fault and the principles of criminal liability, the entity is liable under civil law. In order to determine the criminal liability of the doctor in the proceedings, it should be stated that the doctor fulfilled all the characteristics by his behavior, committed a medical error for which he can be blamed.

The Black Flame (part two): Snyman’s Criminal Law

This is the second of a trilogy of papers (entitled after WEB du Bois’s trilogy of novels titled The Black Flame) reviewing Snyman’s Criminal Law. The decision to commence working on the review was made after encountering the unprecedented section on African customary law in the latest edition of the book. This is a major achievement for this work that promises an exciting change of direction. This paper focuses on four areas in which the book can proceed further into this new direction. These include: (i) a comprehensive clarification of the underlying jurisdictional complexity within which South African criminal law (as inheritor of Roman-Dutch and English law) currently finds itself; (ii) the comparative nature and source of Snyman’s preferred arrangement of his general principles of criminal liability; (iii) the brief account of legal history in the introductory section; and (iv) the section on African customary criminal law. The overall argument made is that a northbound-gazing criminal law scholarship makes comparative criminal law between South Africa and European jurisdictions virtually impossible. The next edition of Snyman’s Criminal Law will be served better by a comparative focus on African jurisdictions and less on Europe.

Principles of Criminal Liability from the Semiotic Point of View

Certainly principles of criminal liability may be understood as rules or norms outlining orders or prohibitions and standing out among other norms with their weight, for legal culture, legal doctrine, etc. In such a classic approach they are norms defining basic rights and obligations in the applicable criminal law (legalata level). However, is it the only possible and cognitively interesting meaning of the word “principle” in jurisprudence? From the semiotic point of view, they can occur in three forms: special-kind norms, teleological directives, rules which constitute valid performance of conventional activities (making criminal law). In an extra-directival sense these principles may be understood as models-descriptions of shaping the system of criminal law (or criminal liability as the core of criminal law). From a theoretical and practical point of view principles addressed to the legislator are extremely weighty—they can be called rules constructing the system of criminal liability. These all problems are discussed in the article.

A Study on Principle of Criminal Liability in the Decisions of the Korean Constitutional Court

A Study on Principle of Criminal Liability in the Decisions of the Korean Constitutional Court

A NEW CATEGORY OF COMMON PURPOSE LIABILITY?

Common purpose liability remains a controversial aspect of the principles of criminal liability in South African law, despite the doctrine passing constitutional muster in S v Thebus (2003 (2) SACR 319 (CC)). This definition was most recently set out in the latest edition of Burchell’s Principles of Criminal Law (5ed (2016) 477). It is clear from the definition that the common purpose doctrine can apply in two scenarios: first, where there is a prior agreement between persons to commit a crime, and secondly, where there is an intentional active association with the commission of the crime. Where either of these situations can be established on the facts of the case, it is not necessary for the State to prove a causal contribution on the part of all of those involved in the criminal conduct, since the conduct of the individual who caused the consequence is imputed to all the others who are involved. 
 It has been suggested that these requirements apply equally to all cases that involve common purpose, but that they are “more or less self-evident in cases where there is a prior conspiracy”. However, as Snyman points out, there are important distinctions between the two forms of common purpose liability. Thus where reliance is placed on a prior agreement or conspiracy, as opposed to active association, proof of agreement with a general common design (rather than association with a specific act) will suffice for liability. Moreover, with regard to the prior agreement form, presence at the scene of the crime is not required, and it is further not required that the accused actively associated himself with the actual commission of the crime at the time of its commission. In the fourth edition of Burchell, the author introduces an entirely new understanding of the operation of the common purpose doctrine, in explaining the judgment in the case of Mzwempi. Burchell’s discussion is worthy of consideration. My interest is not merely personal ‒ Burchell disagrees with my own interpretation of the judgments in Nzo and Mzwempi – but because adopting this understanding would change the way we view the common purpose doctrine.

Instigation in the Law of State Responsibility

It is orthodox doctrine that international law includes no general prohibition on instigation in the law of state responsibility – the rule in Article 16 ARSIWA is taken only to capture material assistance (or facilitation) as opposed to the ways that a state might induce or incite or instigate another state to commit a wrongful act. This orthodox conclusion is based on three claims – two conceptual and one founded on the absence of state practice. I argue that the two conceptual claims are flawed. In contrast, it is probably correct that there is insufficient state practice to ground a prohibition on instigation. However, in this article I argue that such a prohibition may instead be grounded on a general principle of law as envisaged in Article 38(1)(c) of the Statute of the ICJ. That general principle may be formulated in the following way: it is wrong to instigate another to do what you cannot do yourself. To this end, the inquiry seeks to show that, as the ICTY put it in Tadic, ‘the major legal systems of the world take the same approach to this notion.’ Crucially, its comparative analysis is not based on criminal law, even though instigation is widely accepted there – the jump from a general principle of criminal liability to a rule of state responsibility might be thought too wide. Instead, I seek to show is that this general principle is instantiated in civil law in the major legal systems of the world.Of course, it is not enough to show that a general principle exists in those major legal systems – the consequent question is whether it is appropriate for the international legal system and its community of sovereign states. I argue that it is, and simultaneously address the proposed content of that principle when instantiated in international law. Indeed, it will be argued that now that international law has taken the radical leap represented by the rule in Article 16 ARSIWA, it makes no sense to exclude instigation from the ambit of the rule. In addition to its grounding in positive law through Article 38(1)(c), a prohibition on instigation is compelled by the essential logic of Article 16 ARSIWA and the moral claim of complicity: you cannot do by another what you cannot do yourself.

ŠMEIŽIMO KRIMINALIZACIJOS PAGRĮSTUMAS IR TIKSLINGUMAS: KAI KURIŲ OBJEKTYVIŲJŲ NUSIKALSTAMOS VEIKOS SUDĖTIES POŽYMIŲ ANALIZĖ

While the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Constitution of the Republic of Lithuania guarantee the right to the defence of personal honour and dignity, it does not specify in which ways and means this right can be exercised. Therefore, the states themselves can choose appropriate remedies in the light of the moral rules established in the society on this matter, the defence priorities, economic conditions, the position of the legislature, and other factors. The choice of the Lithuanian state to defend a person’s honour and dignity in both civil and administrative and criminal legal remedies raises doubts as to its compatibility with the nature and purpose of the criminal law, as well as the principle of criminal liability, as the last resort (ultima ratio), and international commitments. The above doubts are primarily reflected by the absence of the unified conception of the offense of defamation, i.e. the abstract nature, relativity and subjectivity of personal legal goods such as honour and dignity, as well as mismatch between the objective features of the corpus delicti of defamation to the requirements of legal technique, i.e. their evaluative nature. The relation between the personal honour and dignity and freedom of expression too. This complicates the application of criminal liability (criminal law) and poses a threat of unjust prosecution and punishment. Therefore, the criminal law being the strongest remedy of the state, the defence of a person’s honour and dignity in criminal legal means becomes questionable and dangerous both for the individual to whom this remedy is applied, and the general public.

The heritage of the Nuremberg tribunal

As a system of legal rules contained in the documents of the international community and in the national (internal) criminal legislation, the International Criminal Law envisages the criminal liability and punishment for a vast number of international crimes. These criminal acts imply a violation of laws of war and customs of warfare (the International Humanitarian Law) as well as the acts of disturbing or endangering peace among nations and the security of mankind. The contemporary International Criminal Law envisages the most severe forms of punishment and penal measures for these criminal offences. The perpetrators of these crimes are, in certain cases, subject to the primary jurisdiction of one of international criminal court (supranational) authorities, such as the International Military Tribunal at Nuremberg. In this paper, the author analyzes the importance of the Nuremberg court for the development of international criminal law, including the notion and characteristics of international crimes and the principles of criminal liability.

The legal principles of criminal liability for a title trustee who acts on disposal of real estate in Supreme Court shown case

The legal principles of criminal liability for a title trustee who acts on disposal of real estate in Supreme Court shown case

Liability of members of the medical profession for failure to render assistance to road accident victims in polish criminal law

Abstract Introduction In Poland the most common causes of death from several years include cardiovascular diseases, cancers and injuries, among which the most numerous are road traffic injuries. It becomes essential to have the knowledge on how to behave in case of a traffic collision. On the other hand, criminal law needs to ensure protection of human life and health from the omission of effective assistance by bystanders. A common duty to rescue and immediately notify emergency response centers is in accordance with the Act of 8 September 2006 on the State Emergency Medical Services. Aim The aim of this work was to present principles of criminal liability of members of the medical profession for failure to render assistance to road accident victims. Material and methods Legal-dogmatic interpretation of the law in force in Poland was provided through the prism of Supreme Court rulings and literature. Discussion In Polish criminal law there is no provision that would directly apply to criminal liability of perpetrator for omission to render emergency first aid. Any criminal liability of a person not rendering first aid is based on general principles. It may be based on two provisions of Art. 162 of the Criminal Code and Art. 93 of the Petty Offence Code. Conclusions Every citizen, in accordance with current law, has an obligation to assist first aid to a person in a state of imminent danger threatening the loss of life or serious bodily injury. The possibilities of derogation from the obligation to render assistance to a road accident victim are few, they comprise a closed list. Members of the medical profession (i.e. physician, nurse or paramedic) cannot refuse help to a person in a state of extreme urgency and threatening an immediate danger of loss of life and serious injury, unless rendering assistance poses a risk to health or life of their own.

Withdrawal and Criminal Liability under the Criminal Laws of Jordan and Australia: A Comparative Study

This article is a comparative study of withdrawal as a defence to the criminal liability of an offender in Jordan (a civil law jurisdiction) and Australia (a common law jurisdiction). The analysis in this paper reveals that, in both jurisdictions, criminal laws have long accepted withdrawal as a conduit through which the offender’s liability can be modified or completely quashed. However, there has been no serious attempt, at least in Jordan, to provide anything approaching a complete explanation of the conditions under which the defence may be available and to explore its limits and boundaries. Neither has any serious effort been made to offer an account of the defence’s conceptual nature and governing rationale. The present paper seeks to identify and explore the defence’s conceptual basis and rationale, its current state of law and the appropriate direction in which the defence might be developed. To achieve this purpose, the paper is divided into three sections. In Section 1, it explores the conceptual nature of withdrawal. Section 2 addresses the rationale of the defence in light of the underlying principles of criminal liability in both jurisdictions. In Section 3 a comparative analysis of the defence’s qualifying requirements is undertaken in relation to both primary and accessorial criminal liability. Comparative analysis shows that withdrawal can be used as a defence to all forms of criminal complicity with differing degrees of variations in relation to both its qualifying requirements and the extent to which it may affect the liability of an offender. In cases involving incitement, however, the inciter cannot rely on the defence to avoid criminal liability although his or her punishment can be reduced pursuant to his or her voluntary withdrawal under the JPC.

Benthamite Reflections on Codification of the General Principles of Criminal Liability: Towards the Panopticon

Chapter 2 of the Australian Commonwealth Criminal Code codifies the general principles of criminal liability. All federal criminal offenses, whether or not they appear in the substantive chapters of the Code, are subject to its provisions. Chapter 2 is based on article 2 of the American Model Penal Code and the equivalent general part of the UK Draft Criminal Code. It is, however, a more completely articulated statement of the elements of liability than either of its predecessors. This paper examines the relationship between physical and fault elements in chapter 2. It takes a Benthamite view of its provisions. Though chapter 2 was conceived as a legislative restatement of common law principles of criminal justice it can be expected to play a more significant role as a manual of instructions for the expression of legislative intentions. Chapter 2 enables the legislature to reclaim from courts the authority to define the grounds of criminal liability. There remain, however, areas of uncertainty resulting from the mismatch between the articulate clarity of most chapter 2 provisions and others that envisage the exercise of unstructured judicial discretion. Two issues in particular are discussed: liability for ulterior intentions and the effect of error or ignorance of law on criminal responsibility. The paper proposes enactment of a defense of reasonable mistake of law as a supplement to chapter 2. It concludes with an expression of hope that Australian criminal law theory might be based on a more unified consideration of legisprudence and common law.

'An Extraordinarily Beautiful Document': Jefferson's Bill for Proportioning Crimes and Punishments and the Challenge of Republican Punishment

By any measure, a dramatic punishment gap today separates United States from other Western countries. In this paper, I argue that extreme punitiveness of American criminal law is at least partly attributable to fact that in United States basic challenge of legitimating state's punishment of its own citizens has not been addressed. The first and only attempt to derive a system of criminal law from basic principle of political legitimacy driving foundation of American Republic, self-government or autonomy, was Thomas Jefferson's remarkable Virginia for Proportioning Crimes and Punishments of 1779. Jefferson's bill was not only limited in scope (dealing with punishments, not with crimes or principles of criminal liability, and only with punishments for a very few offenses at that), but also fell considerably short of its ambition to deduc[e] from purposes of society a principle of proportionate punishment. Rather than setting out a republican approach to criminal law consistent with principle of autonomy, Jefferson drew on Anglo-Saxon dooms to retain such penalties as ducking and whipping, while making general reference to need to deter potential offenders through long-continued spectacles of penal servitude, to reform offenders committing an inferior injury, and to exterminate anyone whose existence is become inconsistent with safety of their fellow citizens, albeit only as the last melancholy resource. Jefferson, I argue in this paper, conceptualized punishment as a question of police, rather than of law. At time, police and law represented two distinct modes of governance. Police was thought of as householder's authority over members of his household transferred onto political sovereign. Law, by contrast, was thought to consist of those abstract rules that govern relationship among equal persons, or citizens. From perspective of police, punishment is a problem of household discipline, employed by superior sovereign against his inferior disobedient subject. As such, it is subject to limitations of prudence and expedience, but not of justice. Jefferson's Bill thus provides a sketch of punishment as a matter of good governance, rather than as a matter of right. It did not lay foundation for continuing process of critique in light of principles of justice without which republican punishment cannot be legitimated.

Philosophy of Criminal Law.

This study offers both a penetrating examination and assessment of the theory and principles that underlie contemporary Anglo-American substantive criminal law, and a critique of what the author perceives as basic inadequacies in the accepted orthodox theory of criminal law. Noted legal theorist Douglas N. Husak analyzes the reasoning behind the general principles of modern criminal law theory and demonstrates the relationship between criminal law theory and its contemporary practice. Husak's central argument is that the interpretation and application of the general principles of criminal liability presuppose a moral and political philosophy. He contends that most of the major criminal theorists in Anglo-American legal history (Austin, Holmes, Stephen, Hall, Williams, and others) have supposed that criminal theory can be empirical, scientific, and objective and have emphasized such concepts as action, harm, and causation, which seem amenable to empirical analyses, at the expense of moral and political philosophy. The author argues that revising criminal theory to include moral and political philosophy will make a greater contribution to justice in the principles and practice of criminal law.

Penal Regressions

Baron Raffaele Garofalo's memorable treatise Criminology ends (almost as an afterthought) with an Appendix entitled “Outline of Principles Suggested as a Basis for an International Penal Code”. In barely twelve pages he formulates: principles of criminal liability; an enumeration of categories of offenders; a system of penalties to be adopted to combat crime; and some basic rules of procedure for bringing offenders to justice. Garofalo was not a cranky, lofty or flamboyant idealist. Together with Cesare Lombroso and Enrico Ferri he was the founder of the famous Positivist School of Criminology launched in Italy towards the end of the nineteenth century. He was a High Court Judge, a tough realist with a sharp and incisive mind. Staunch traditional conservative that he was, he might instead have been expected to advocate that each nation should be free to express its unique individuality through its own distinctive legal and penal edifice.

VANUATU PENAL CODE

Like many other Penal Codes in the Commonwealth, the Penal Code of Vanuatu is divided into two Parts, Part I, which deals with general principles of criminal liability, and Part 2, which sets out the definition of the individual offences. The presentation has the advantage of orthodoxy and conformity, but whether it is the most helpful method of presentation is another question of course. The form of presentation requires that the persons charged with applying the Code, either as magistrates or as police, and the persons wishing to ascertain the extent of their liability as citizens, must read the contents of the first Part, and carry them in their mind, and apply them where appropriate into the definitions of individual offences in the second Part. This is not an easy feat when the contents of the first Part are few in number, and when the readers are very familiar with the English language and with the art of implication. Neither of these circumstances is present with regard to the Penal Code of Vanuatu, which cannot help but render it difficult to understand and to apply in this country.

THE TERRITORY OF THE CRIMINAL LAW

During the past eighteen months, those of us involved in teaching and research in criminal law have been treated to new editions of a number of established texts.' It is often said to be one of the advantages of working in the subject that one is spoilt for choice amongst so many excellent books. However, it is refreshing to see a newcomer in the field, in the form of Chris Clarkson and Heather Keating's Text and Materials, which takes a very different approach to that of the established texts both in the view taken of the proper scope of criminal law study (through the integration of questions traditionally divided between fields of 'criminal law' and 'criminal justice') and in the style of presentation (through a mixture of commentary and substantial excerpts from cases, books and articles). In this review, I shall consider two issues relating to these major differences, concentrating on the treatment in each book under review of the general principles of criminal liability. First, as my title suggests, I shall consider the relative merits of the wider and narrower views of the territory of the criminal law presented in the two books. Secondly, I shall raise some questions about the function of textbooks in legal education in general and criminal law teaching in particular. What are the characteristics of a good textbook; why do we use them, and are we justified in doing so?