Criminal Law Provisions Research Articles

Significancy of Immediate Enactment of the Draft of Indonesian Criminal Code (RKUHP) to Ensure Judge’s Full Compliance with Article 5 (1) of Law No. 48 of 2009 on Judicial Authority

The Criminal Code that is currently applied in Indonesia is a product of colonialism law which originates from the Dutch Wetboek van Strafrecht voor Nederlands Indie and has been adopted since 1918. In its article 1 paragraph (1) stipulates legality principle; that no action can be punished unless with a pre-existing criminal law provision. However, the Article 5 paragraph (1) of the Law No. 48 of 2009 stipulates that a judge must delve, follow, and understand the living legal norms and values that are felt by the society. These living norms and values are not written and most certainly not enacted unlike the written law. However, they are crucial in upholding community’s sense of justice, and the Law on Judicial Authority has obliged judge to pay great attention to those values. In the Draft, the living laws are accommodated in its article 2 and article 12(2). This study examines the importance to immediately enact the Draft to help realizing judge’s ideal as stipulated in Article 5. The researcher employed a normative juridical method through a statutory approach to study the ratio legis of the laws. Furthermore, the researcher applied qualitative analysis. The result of this study finds out that the Draft accommodates the living law of society better, and therefore the Government shall enact it immediately, with all things considered.

Tort liability for a failure to render assistance in a comparative perspective

The article looks at the problem of tort liability for a failure to render assistance and compares the legal approaches to this issue. There are no European legal systems that regulate such a duty to render assistance directly in the provisions of private law. This is generally because most of them (with the exception of common law countries) have criminal law provisions that penalize a failure to rescue another person in need of assistance. This raises the question of the impact of criminal law on liability in private law. The paper discusses this issue in detail, accepting the opinion that, in those legal systems where a failure to render assistance is punishable as a criminal offence, the provisions of criminal law should determine the conditions and prerequisites for rendering assistance in private law and establish the boundaries of liability in tort law. In addition, the article aims to present universal guidelines that might be useful for courts in order to establish tort liability in other cases of a failure to render assistance.

What place has ‘capacity’ in the criminal law relating to sex post JB?

The term ‘capacity’ has come to assume a variety of meanings in the law of England and Wales, and the failure of statutes and judges to specify its meaning and application across the civil and criminal law leads to problems. Nowhere is this perhaps clearer than in the law relating to sexual capacity. This paper begins with an overview of two streams of law on sexual capacity in the civil and criminal law. The first stream traces through the criminal law provisions of the Sexual Offences Act 2003, the work by the Law Commission which led to its enactment, and the ways in which its provisions have been applied by the courts in practice; and the second examines the Mental Capacity Act 2005 ('MCA 2005') and its parallel application by the civil courts. We illustrate how the case of A Local Authority v JB [2021] UKSC 52 brought these problems to the fore, as the Supreme Court was at last confronted with the differences between the definition and use of the term ‘capacity’ by the civil and criminal law on sexual capacity. We suggest that the decision made by the Supreme Court in JB has left open terrain which ought to be used to reframe, or perhaps even replace, the concept of ‘capacity’ within the criminal law on sexual capacity.11Abbreviations: ‘SOA 2003’ (Sexual Offences Act, 2003), ‘MCA 2005’ (Mental Capacity Act, 2005), ‘JB’ (A Local Authority v JB [2021] UKSC 52)

Implementation of Criminal Law Provisions Against Serious Killers in Indonesia

Implementation of Criminal Law Provisions Against Serious Killers in Indonesia

Legal Progression in the Assessment of Harmful Elements of the State's Economy

The purpose of this study is to find out how the forms of legal breakthroughs are known in law enforcement practices in the application of elements detrimental to the state economy related to handling cases of criminal acts of corruption, is it possible?. This study uses a doctrinal juridical approach. The results of the study explain that in terms of both legal and formal in the form of the Republic of Indonesia Law Number 31 of 1999 Jo. Law of the Republic of Indonesia Number 21 of 2001 concerning Amendments to Law of the Republic of Indonesia Number 31 of 1999 concerning Eradication of Criminal Acts of Corruption, legal doctrines and the existence of a judicial review decision of the Constitutional Court of the Republic of Indonesia Number: 25/PUU-XIV/2016, Legal breakthroughs in the application of elements detrimental to the economy countries related to the handling of cases of criminal acts of corruption, can be held criminally accountable with criminal sanctions in accordance with the provisions of Article 2 paragraph (1) or Article 3 of the Republic of Indonesia Law Number 31 of 1999 Jo. Law of the Republic of Indonesia Number 21 of 2001 concerning Amendments to Law of the Republic of Indonesia Number 31 of 1999 concerning the Eradication of Criminal Acts of Corruption in an objective and casual manner. If there is an element of "harming the country's economy" in accordance with the provisions of criminal law, especially the eradication of corruption.

State economic security as criminal law protection object

The existence of any state is connected with socio-economic and political-legal processes in the world. During the period of global social transformations and major economic and political re-forms, Russia finds itself in a socio-political situation of necessity to protect its interests, includ-ing economic ones. Therefore, the legislator solves the most important task of legal provision of economic security by criminal legal means. This text aims to examine the theoretical foundations of economic security, analyze the current state of the Russian economy with its level of functional security and identify ways to improve security and criminal law provisions. The methodology of this research is a set of methods, techniques and tools of cognition used in research, both theoreti-cal, empirical and applied. The authors concluded that the main threat to the economic security of the country is economic crimes, the fight against which is impossible without criminal legislation. Therefore, the modernization of criminal policy should be carried out by improving legislation and introducing a well-thought-out system of law enforcement, which includes a similar valuation of all subjects of economic relations.

The European Court of Human Rights and the Principle of Foreseeability (Lex Certa and Stricta): How to Determine Whether an Offence Is Clearly Defined in Criminal Law

The European Court of Human Rights has applied the principle of foreseeability (lex certa and lex stricta) on many occasions to determine whether a person could have foreseen at the time of the act that the act matches the description of an offence in a criminal-law provision and is therefore punishable. This raises a question that has been decisive for the outcome of many cases: how can one ascertain whether the wording for an offence is sufficiently clear? The article examines the guidelines set forth by the European Court of Human Rights for the use of the principle of foreseeability and whether it is possible to speak of a standard on the basis of the case law for the wording for an offence and the associated interpretation, in aims of ensuring compliance with the principle. Also discussed are the problems that have arisen in connection with the issue and what questions have yet to be answered. Proceeding from the case law, the author offers conclusions as to what could form a basis for determining whether a person should have foreseen liability and punishment incurred via commission of the act in question.

Comparison of Several Criminal Law Provisions Between the Indonesian Criminal Code and the Criminal Code of Other Countries: A Brief Overview290Comparison of Several Criminal Law Provisions Between the Indonesian Criminal Code and the Criminal Code of Oth

The purpose of comparative law is to help trace the origins of the development of the same conception of law throughout the world. If examined further, the purpose of comparative law is not merely to find out the differences and similarities rather than the laws being compared, but what is important is to know the causes and background of these differences and similarities. With a comparative study of criminal law, Indonesia can take useful materials, especially in the formation of a quality national criminal law and of course in accordance with current conditions as well as Indonesian ideology and ideals. This is indicated by the material of the Indonesian Criminal Code which urgently needs improvement by incorporating various criminal law arrangements from various countries, of course adjusting to the conditions and ideology of Indonesia. This is reflected in various basic problems such as the principles and concepts of the criminal law. So it is necessary to progressively law enforcement officers in operationalizing the criminal law. In addition, a national legal development policy direction is needed that is oriented towards Indonesian ideology and ideals.

Criminal negligence of a public health doctor conducting care work

The article discusses the criminal negligence of a public health doctor when performing care work. It is based on a Bachelor’s thesis on the subject, which examines how the criminal negligence of a public health doctor is assessed. The research method used is legal dogmatics, which is used to interpret and systemize criminal law provisions. In addition, the method seeks to reformulate legal problems, to show new types of systemic connections and to structure aspects relevant to the solutions of the problem. After the introduction, the article looks at negligence in care work generally. It includes criminal negligence in general, the concept of unactual negligence (neglect of rescue) in brief, as well as the concepts of objective and subjective negligence. It then examines the criminal offences applicable to care work, such as negligent violation of official duty and the provisions relating to criminal offences against life and health, as well as negligence in the application of those criminal offences. The last chapter contains conclusions and a summary. It is worth noting that the criminal liability of a public health doctor in care work is much wider than that of a private doctor. This is because, when the public health doctor acts negligently, they are also in breach of their official duties. Violations of official duty do not require personal injury, unlike negligent offences against life and health. However, there is little exercise of public authority in care work, so the stricter responsibility of a public health doctor is poorly justified by the legislator.

LAW ENFORCEMENT OF CERTAIN PROVISIONS IN CASES OF RELEASE FROM CRIMINAL LIABILITY

The article is devoted to the study of the application of certain provisions in cases of exemption from criminal liability.
 It is stated that the issue of law enforcement of the investigated provisions in cases of exemption from criminal liability is relevant, not only from the standpoint of implementing the basic principles of criminal punishment, but also from a praxeological standpoint of application of relevant relevant provisions of criminal law. It is established that the provisions on the release of a person from criminal liability are determined by Articles 44 – 49 of Section IX of the Criminal Code of Ukraine.
 It is proved that exemption from criminal liability is a refusal of the state to apply to a person who has committed a crime, statutory restrictions on certain rights and freedoms by closing a criminal case carried out by a court in cases under the Criminal Code of Ukraine in accordance with the Criminal Procedure Code Of Ukraine (Resolution of the Plenum of the Supreme Court of Ukraine of December 23, 2005 № 1 "On the practice of application by the courts of Ukraine of the legislation on release of a person from criminal liability"). It is also established that a person who has committed a criminal offense is released from criminal liability: a) only in cases provided by the Criminal Code of Ukraine; b) such exemption from criminal liability occurs only in cases provided by this Code; c) such dismissal is carried out exclusively by a court (Article 44 of the Criminal Code of Ukraine).
 Exemption from criminal liability is characterized by the following features: a) it does not involve state conviction of the person who committed the crime (conviction is not passed); b) no punishment is applied to the perpetrator; c) due to the absence of a conviction, a person released from criminal liability is considered to have no criminal record.
 It is proved that the general part of the Criminal Code of Ukraine provides, in particular, for the following cases of release of a person from criminal liability: in connection with effective repentance (Article 45); in connection with the reconciliation of the perpetrator with the victim (Article 46); in connection with the transfer of a person on bail (Article 47); in connection with a change of circumstances (Article 48); in connection with the expiration of the statute of limitations (Article 49). At the same time, a detailed consideration of the above cases allowed us to explore important aspects and features of their implementation.

Pertimbangan Hakim Menggunakan Alat Bukti Dalam Memutus Perkara Pidana Pembunuhan

The trial of a criminal case is to find out whether a criminal offense has occurred in an event, therefore in the most important criminal proceedings the proceedings are proved. Evidence is a problem that plays a role in the examination process in court because with this proof is determined the fate of a defendant. The legal function in the State of Indonesia is to regulate the order of society in the life of the nation and the state, whereas the violation of the law itself is an event that must exist in every society and is impossible to be eliminated absolutely, because violation of law is an integral part of development More complex. One of the provisions governing how the law enforcement officers carry out the task in the field of repressive is the criminal procedure law which has the purpose of searching and approaching material truth, the complete truth of a criminal case by applying the provisions of criminal procedure law honestly darn precisely with The purpose of finding out who the perpetrator can be charged with is a violation of the law.

المسؤولية الجنائية الدولية والوطنية لموظفي الشركات العسكرية والأمنية الخاصة

The world is witnessing many armed conflicts, which played a prominent role in tearing the countries that were exposed to those conflicts, and therefore these conflicts prompted governments that are experiencing internal or external conflicts and turmoil to seek the assistance of private military and security companies in order to maintain their rule, and the services provided by these companies are Several, including training, providing advice and intelligence information, as well as securing convoys and transporting supplies, but their progress increased to the point of participating with the security forces in the fighting. This research is of great importance in the international and national criminal responsibility of employees of private military and security companies, to clarify individual criminal responsibility in the light of the provisions of international humanitarian law and international criminal law. Since private security companies are so far governed by clear and binding international rules, it is necessary to make possible efforts to prevent serious violations of the rules of international humanitarian law and human rights rules by employees of those companies at the internal and international levels.

Legal Protection for Women and Children as Victims of Human Trafficking in Indonesia

Introduction to The Problem : The background of this research is the existence of problems related to legal protection policies for women and children who are victims of human trafficking in Indonesia. Based on data from the Ministry of Foreign Affairs, it is known that there were 35 victims of human trafficking in 2010, while in 2011 and 2012, there were 33 people and 92 people, respectively. One of the policies made by the government regarding the above problems is Law Number 21 of 2007 concerning the Eradication of the Crime of Human Trafficking. However, it is found that this law has not been able to reduce human trafficking in Indonesia. In addition, this law is considered ineffective in fulfilling the rights of victims in which the criminal law's provision of protection to victims of human trafficking has not yet produced a clear pattern. Purpose/Objective Study : This study aims to analyze the legal protection for women and children as victims of human trafficking in Indonesia. Design/Methodology/Approach : This research is normative legal research (juridical normative) which uses a statute approach and a conceptual approach related to legal protection for women and children victims of human trafficking in Indonesia. Research results are further associated with the values contained in Human Rights. Findings : Based on the description above, the problems found are as follows: The number of cases of human trafficking in Indonesia continues to increase; Legal protection efforts for women and children victims of human trafficking viewed from a human rights perspective in Indonesia have not been effective; The form of protection for victims of human trafficking by criminal law has not yet shown a clear pattern. Paper Type : Research Article

LAW ENFORCEMENT OF CERTAIN PROVISIONS IN CASES OF RELEASE FROM CRIMINAL LIABILITY

The article is devoted to the study of the application of certain provisions in cases of exemption from criminal liability.
 It is stated that the issue of law enforcement of the investigated provisions in cases of exemption from criminal liability is relevant, not only from the standpoint of implementing the basic principles of criminal punishment, but also from a praxeological standpoint of application of relevant relevant provisions of criminal law. It is established that the provisions on the release of a person from criminal liability are determined by Articles 44 – 49 of Section IX of the Criminal Code of Ukraine.
 It is proved that exemption from criminal liability is a refusal of the state to apply to a person who has committed a crime, statutory restrictions on certain rights and freedoms by closing a criminal case carried out by a court in cases under the Criminal Code of Ukraine in accordance with the Criminal Procedure Code Of Ukraine (Resolution of the Plenum of the Supreme Court of Ukraine of December 23, 2005 № 1 "On the practice of application by the courts of Ukraine of the legislation on release of a person from criminal liability"). It is also established that a person who has committed a criminal offense is released from criminal liability: a) only in cases provided by the Criminal Code of Ukraine; b) such exemption from criminal liability occurs only in cases provided by this Code; c) such dismissal is carried out exclusively by a court (Article 44 of the Criminal Code of Ukraine).
 Exemption from criminal liability is characterized by the following features: a) it does not involve state conviction of the person who committed the crime (conviction is not passed); b) no punishment is applied to the perpetrator; c) due to the absence of a conviction, a person released from criminal liability is considered to have no criminal record.
 It is proved that the general part of the Criminal Code of Ukraine provides, in particular, for the following cases of release of a person from criminal liability: in connection with effective repentance (Article 45); in connection with the reconciliation of the perpetrator with the victim (Article 46); in connection with the transfer of a person on bail (Article 47); in connection with a change of circumstances (Article 48); in connection with the expiration of the statute of limitations (Article 49). At the same time, a detailed consideration of the above cases allowed us to explore important aspects and features of their implementation.

CRIMINAL LAW REFORMS IN INDIA: A STUDY ON PAST, PRESENT AND FUTURE

The Criminal Justice System represents the cutting edge of governance. Towering over society, it parades an array of institutions, processes, people, and penalties to reinforce its images. This array includes policemen in uniform, constables with batons or lathis, the police station, courts, jail, bail, sentence, prisons, imprisonment, death row, the gallows, hanging and death. Each of these institutions and processes is part of the Criminal Justice System and yet partly autonomous within it. But a matter of great concern is that there arise multiple questions about whether these institutions are working/functioning properly within their ambit or not. Is there lack of implementation of provisions of criminal law by the enforcing agencies? Whether the recommendations of law commissions are adequately implemented? Whether the Malimath Committee’s Report on Criminal Law Reforms are being adequately addressed and enforced. Is adversarial system of criminal justice in India suitable in the present-day context, or it is high time to accept few principles of inquisitorial system of justice as it is prevailing in common law countries. With these few questions, in the present paper, the researchers have made an attempt to introduce our criminal justice system. The researchers further focuses on reforms recommended by the Law Commission. Finally, the researchers have suggested some important changes/modifications required in the prevailing criminal justice system in India to make it more streamlined and strengthened. Key Words: Criminal Justice System, Adversarial, Inquisitorial, Malimath Committee, Law Commission, Human Rights, Courts, Police, Bail etc.

A Study on the Implications of China’s Personal Information Protection Act on Chinese and Korean Businesses

Purpose – This paper discusses the legislative process and necessity of China’s Personal Information Protection Law, examines the main contents of China’s Personal Information Protection Law, and studies its impact on Chinese and Korean enterprises. Thus, China’s future data protection legal system can be better understood.
 Design/Methodology/Approach – In October 2020, China convened the 13th National People’s Congress to deliberate and promulgate the draft Personal Information Protection Law of the People’s Republic of China 2020.
 The draft privacy law is China’s first specialized legislation on personal information protection, drawing global attention. Furthermore, president Xi Jinping made clear his commitment to protecting personal information by reiterating the need for “cyber security and personal information security for people” and “protecting their legitimate rights and interests in cyberspace” after the 2019 National Cyber Week. The Personal Information Protection Act of China was enacted on November 1, 2021, as personal information protection was also a real concern among the Chinese people in the highly information-oriented era.
 Findings – China already has an independent and unified Personal Information Protection Act, which officially promulgates and enforces the Personal Information Protection Act this year following cybersecurity, cybersecurity, and criminal law provisions. Furthermore, in October 2020, China began a full-fledged legislative process by releasing a draft Personal Information Protection Act and collecting opinions.
 Research Implications – China’s Personal Information Protection Act is expected to play an important role for Chinese companies and Korean companies with subsidiaries in China due to offshore applications. Therefore, it is necessary to continue to pay attention to the revision and enforcement rules of the Personal Information Protection Act so that Chinese and Korean companies can respond quickly after it is promulgated and enforced. Therefore, this paper summarizes the background of China’s Personal Information Protection Act and the main contents of the 2021 edition of the Personal Information Protection Act.

Digitalization of Crime and Criminal Law

Russia's entry into the era of the information society entailed a significant transformation of the economy, the ways people communicate, the nature of social ties, which could not but affect crime. Representatives of the criminal community adopted quickly new information and communication technologies and moved a significant part of their illegal activities to the online space, as a result of which crime acquired qualitatively new characteristics. Digitalization has changed not only the qualitative parameters, but also the scale of crime. Crimes in the field of computer information in their volumes are many times higher (by how many orders of magnitude) than all other types of crimes taken together. Digitalization processes have had a significant impact on traditional segments of crime, including mercenary crime. In most cases, the object of mercenary encroachments is no longer things (including cash), but non-cash funds. And with the development, complexity and diversification of digital financial and quasi-financial turnover, new types of "disembodied" assets are becoming increasingly the subject of theft - cryptocurrency, consumer loyalty bonuses, virtual objects used by players in multiplayer online games. In accordance with this, the methods of theft are transformed inevitably. Illegal access to legally-protected computer information, malicious computer programs, and social engineering methods are used to steal non-cash money and intangible financial assets. Thus, the digitalization of the global economy and Russian society has changed radically the criminal landscape, the scale, structure and qualitative characteristics of crime. In fact, the criminal law should respond promptly to the ongoing transformations, properly take into account the new criminal reality, adapt to it, create new and adapt existing tools to counter illegal activities. However, the current criminal legislation clearly lags behind modern crime trends, which reduces its preventive and protective potential. The author comes to the disappointing conclusion that the adaptation of criminal legislation and law enforcement practice to counteract digital crime is slow, inconclusive and contradictory, showing the relevant problems on exact examples. From the author's point of view, modern criminological reality requires a change in the vectors of criminal policy, transformation of basic criminal law provisions and institutions, clarification of existing criminal law prohibitions and criminalization of new socially dangerous acts, i.e. a full-scale reform of criminal law.

Reconstructing the Data Crime Governance Model from the Perspective of Criminal Compliance

With the advent of the risk society and the era of big data, criminal law must respond to data crime in a more proactive manner. The traditional way of conviction and sentencing adopted by the current criminal law for data crime can no longer meet the requirements of the times. Compliance should be introduced into criminal law to improve the governance system of data crime. There are three ways to incorporate compliance into criminal law: (1) as the exemption cause of enterprise crime; (2) as the general circumstances of sentencing in the General Provisions of Criminal Law of the People’s Republic of China; (3) as the special circumstances of sentencing in the Specific Provisions of Criminal Law of the People’s Republic of China. The latter two approaches are more suited to China’s national conditions.

Methodological Aspects of Linguistic Expert Analysis of Communications on Sexual Topics with Minors

The article is devoted to the linguistic aspect of examinations on crimes against sexual integrity and sexual freedom. Based on the consistent legal, expert and linguistic analysis, the author observes the formation of a new type of forensic linguistic and comprehensive psychological and linguistic examinations, the object of which is the communication on sexual topics with minors in social networks and messengers. He also analyzes criminal law provisions covering crimes against a person’s sexual inviolability and sexual freedom. Subsequently, the expert concepts of “sexual acts”, “motivation” and “threat”, which are advisable to establish during the examination, are developed and brought into correlation with the linguistic knowledge. Finally, the author proposes methodological approaches to solving expert linguistic tasks when examining messages to the minors on sexual topics.

Juridical Review of the Crime of Taking Women Run

This study aims to determine the application of material criminal law provisions for the crime of taking women away in the Unaaha District Court Decision Number 14/Pid.B/2011?PN.Unh and knowing the legal considerations in imposing criminal sanctions on the perpetrators of the crime of taking women away in the decision. Unaaha District Court Number 14/Pid.B/2011?PN.Unh, which was implementedat the Unaaha District Court. The data collection method used was the library method and the interview method, then the data obtained were analyzed qualitatively.