Penalties For Offences Research Articles

О введении в России института уголовной ответственности юридических лиц

The number of European countries which have included into their national legislation the provision on criminal liability for legal persons (corporations) has been continuously growing. The following countries remain essential supporters of preserving criminal liability for individual guilt: Germany, Russia, Italy, and, may be, Poland, where after the adoption of the Law on Liability of Collective Entities for punishable offences, the Constitutional Tribunal in 1994 adopted the decision to consider this liability to be not criminal, but sui generis. Some Russian legal theorists were quick to support the tendency to recognize the practicability of introducing criminal liability for legal persons in spite of centuries-old traditions of liability for a personal guilt that is characteristic of the criminal law of the European continental countries. This can be explained by an excessive influence of the Anglo-Saxon common law countries, whose representatives went all out during the preparation of many international conventions to include into them the provisions that require establishing criminal liability for legal persons in national legislations of the European countries. But none of such conventions mentions the basis for criminal liability of legal persons. They fail to mention this fact, otherwise they would have to state that such liability suggests only strict liability. The author of the article tries to prove the irrelevancy of the above-mentioned type of liability in Russia with its rather effective administrative law and fairly solid provisions of the civil legislation which help to efficiently fight the damage incurred by legal persons (corporations) to different entities protected by the law. Introduction of the provisions on criminal liability for legal persons into the Russian criminal legislation touches upon the foundation on which all types of legal liability in this country are based on, as well as domestic centuries-old traditions, for it is not possible, without changing anything in the principal structure of the criminal responsibility, to simply include, without solid justification of the adopted changes, a new provision into the Criminal Code of the Russian Federation, in which only a range of criminal acts for which legal persons may be liable would be outlined, without indicating grounds for their criminal liability, in contrast with the grounds for the liability of physical persons.

Knowledge, perception and attitude of Nigerian students to plagiarism

This study investigated the knowledge, perception and attitude of Nigerian students to plagiarism. The instrument for data collection was a structured questionnaire which was self administered by the researchers to the respondents. The respondents were 282 first year students in the Faculty of Business Administration, University of Nigeria, Enugu Campus. The collected data was analyzed with frequency counts and percentage. The major findings show that the knowledge of plagiarism among the students prior to their being taught the subject was very low. However, after being exposed to the subject through teaching, their knowledge increased significantly. The respondents perceived some reasons as significant to the incidence of plagiarism among students. These included: fear of being scored poorly, awareness that other students were doing it, the opportunities for copying offered by the Internet, and the absence of punishment for plagiarism-related offences. The attitude of respondents to strategies for curbing plagiarism showed that respondents favoured corrective measures over punitive measures. The study concluded that university administrations should pay close attention to this problem by developing strategies that can help resolve it.

JEWISH LAW AND MEDIEVAL LOGIC: WHY EATING HORSE MEAT IS A PUNISHABLE OFFENSE

AbstractThis article presents a case study of the influence of Muslim and Christian logicians on medieval Jewish law. The case in question is why it is a punishable offense for Jews to eat mammals that do not have either sign of purity—that is, neither have split hooves nor chew their cud—and the article examines the answers given by three medieval Jewish sages: Rashi, Maimonides, and Naḥmanides. The Written Law of the Torah explicitly allows the consumption of mammals, such as cattle, with both signs of purity. It also explicitly prohibits the eating of mammals, such as camels or pigs, with one sign but not the other. It does not, however, appear to explicitly prohibit the consumption of mammals, such as horses, with neither sign. Using a fortiori logic, Rashi derives a punishable prohibition against eating horses from the prohibition against eating camels and pigs. Maimonides ascribes this prohibition to the Oral Law of the Talmud. Naḥmanides, by contrast, attributes it directly to the Written Law without relying on either a fortiori logic or the Oral Law. This article argues that this solution was available to Naḥmanides because he adopted inclusive disjunction from Christian logicians, but it was not available to Maimonides because he adopted exclusive disjunction from Muslim logicians. The choice between inclusive and exclusive disjunction is shown to continue to be of importance in modern American law.

What Obeah Does Do:

Abstract Obeah, which colonial ordinances defined capaciously as “any assumption of supernatural power,” was a crime in Trinidad until 2000, and the law continues to make Obeah a punishable offense in most of the anglophone Caribbean. Scholars have noted that contemporary attitudes toward Obeah—a hard-to-define term—are largely negative, implying spiritual harm. My fieldwork in a region of Trinidad regarded as the island's capital of Obeah, however, revealed polyvalent, context-contingent attitudes toward the term. Using ethnographic examples, I offer alternatives to scholarly approaches that have explained away Obeah's harm as evidence of colonial false consciousness. My interlocutors took shifting, even contradictory stances toward Obeah that depended on tactical contexts of power. By examining attempts to intervene in the justice system through spiritual force, I argue that Obeah is a justice-making technology and that, like all systems of law, the potential for harm is part of its power. In the final part of the paper, I argue that rather than conforming to a definition of religions as mutually exclusive confessional communities rooted in collective avowals of belief, Obeah models a counterdiscourse on social relations that I call “altered solidarities,” challenging regnant conceptions of religion as the basis for legal recognition in modern states.

Does Temperature Affect Homicide Rate?

Crime is an act against law and thus is a punishable offence. Crime varies over space and time. Among all crime types, murder is the most cruel and inhumane which do an irreparable damage to the society. Present study attempts to analyse the trend and pattern of homicide and its various determinants. Social heterogeneity and weather- more specifically temperature, are considered to be most influencing in catalysing aggression and murder. The study tries to evaluate the linkages between these factors by examining the correlation between homicide and income and poverty level, level of urbanisation, and temperature in India over a 13-year span of time. Results show that while poverty, urbanisation and income level do not affect the homicide significantly in unidirectional manner, temperature does affects the pattern of murder incidences. Interestingly the regions which have witnessed warming trend during the past decade, are also the areas of high and increasing homicide rates.

A in(efetividade) do Direito Penal na legislação ambiental no Estado da Paraíba

A Constituição Federativa do Brasil de 1988 estabeleceu que o meio ambiente é um bem de uso comum do povo, assegurando a todos o direito de tê-lo equilibrado, impondo ao Poder Público e à coletividade o dever de defendê-lo e preservá-lo à presente e às futuras gerações e ampliou as ações judiciais na tutela ambiental. Partindo desse preceito constitucional, a legislação ambiental brasileira tornou-se uma das mais completas e vastas do mundo, sendo composta por numerosas leis, das quais a Lei no. 9.605/1998 (Lei dos Crimes Ambientais), que representa um marco importante no Direito Penal brasileiro, garantindo à sociedade, aos órgãos ambientais e ao Ministério Público a agilidade e a eficácia para punir as pessoas físicas ou jurídicas que cometerem qualquer infração contra o meio ambiente. Com o objetivo de verificar a efetividade da aplicação desta Lei, analisou-se a quantidade de auto de infração lavrados pelo Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis (IBAMA) e pela Superintendência de Administração do Meio Ambiente (SUDEMA), no período de 2007 a 2011. Neste período, foram aplicados por estes órgãos um total de 4.957 autos de infração por desrespeito às normas ambientais. Podemos concluir que, apesar da Lei dos Crimes Ambientais (Lei no 9.605/1998) ter punições severas para as infrações cometidas contra o meio ambiente, o número de autos de infração, lavrados na SUDEMA e no IBAMA foram numerosos, devido à falsa impressão de impunidade, provocada pela ineficiência do Estado em cobrar as multas aplicadas e do judiciário considerar estas infrações penais como de menor potencial ofensivo.

Transparency, trust and security: An evaluation of the insurer's precontractual duties

Transparency in insurance law attaches to the rights and duties of the parties, the relationships between insurers, insurance intermediaries such as agents and brokers, insurance supervisory law and insurance dispute resolution procedures. Regarding the rights and duties of the insurer and the prospective policyholder, it requires insurers to disclose precontractual information in a timely manner that is clear, understandable, legible and unambiguous. Transparency as a value is incredibly important in insurance contracts. This contribution focuses exclusively on the insurer's duty of disclosure during precontractual negotiations. Although the insured's duty of disclosure has enjoyed more attention in the past, the duty clearly applies to the insurance proposer as well as the insurer. The purpose of this contribution is to evaluate the nature and extent of the insurer's transparency duties as informed by both common and statutory laws.The insurer's duty is derived primarily from the statutory rights of access to information in accordance with the provisions of the Constitution of the Republic of South Africa and the Promotion of Access to Information Act. It is furthermore supported by specific insurance consumer protection law found in the detailed provisions on mandatory disclosures in the Financial Advisory and Intermediary Services Act, the Long-term Insurance Act, the Short-term Insurance Act and, finally, the Policyholder Protection Rules issued in accordance with these acts. Strict rules on advertising can be found in the General Code of Conduct issued under the FAIS Act.The Act furthermore specifically targets the activities of insurance intermediaries in precontractual disclosures. The fact that insurance products and services have been exempted from the scope of the Consumer Protection Act from 28 February 2014 should not diminish the insured's right to rely on universal consumer protection principles as envisaged by South African insurance legislation. The insurer's duty to disclose is in the last instance also derived from the common law duty not to make misrepresentations by commission or omission. When negotiating an insurance contract, the insurer's duty to speak is not based on a general requirement of bona fides, but is recognised as an ex lege duty due to the involuntary reliance of the prospective insured on information supplied by insurers in the market. A lack of transparency should lead to the insurer's accountability. A failure to disclose material information or a disclosure of false information that goes to the root of the matter and that induces the prospective policyholder to buy the insurance product is recognised as an actionable misrepresentation. Statutory provisions do not diminish the common-law duty not to make misrepresentations, but provide details of the nature and extent of the information duty to provide clarity and legal certainty in the determination of the standards of transparency required in law. In addition, statutes provide for enforcement actions by regulators, orders that could affect the licence of the insurer and provide for punishable offences and penalties. In terms of common law, a misrepresentation by omission or commission renders the insurance contract wholly or in part voidable. The policyholder may decide to rescind the contract and claim restitution. He may also, in conjunction with rescission, or as an alternative when deciding to maintain the contract, claim delictual damages or even constitutional damages when judged by a court of law as appropriate relief. Statutory remedies include a monetary award by the Insurance Ombud. Even though such an award is capped at R800 000, it is submitted that it is preferred to a civil law damages claim.

Laws on Sexual Crimes Against Women: Overhauling Effort of the Criminal Law (Amnd.) Act, 2013

The Criminal law (amendment) Act 2013 was an effort to castigate increasing offences of sexual nature against women in the country, especially considering the horrific rape and murder of ‘nirbahaya’ in Nation Capital Region. The incumbent government in the centre in its effort to pacify the wrath of its citizens brought relevant amendments in criminal law based on finding of the judicial commission, headed by eminent jurist Justice J. S. Verma and National Commission on Women. The Penal code was resultantly ameliorated to provide strict penal action and introduced stringent punishment for offences such as acid attack, sexual harassment, voyeurism, stalking and trafficking. The amendment brought substitution of the term ‘rape’ with ‘sexual assault’ under section 375 which broaden the ambit by including variety of non-consentual sexual conduct, ranging from touching to penetration of the private organs of the women but was criticized on the aspect that no distinction had been made in punishment on considerations of severity/gravity of crime committed. The paper is going to explicate in detail the benefits of the amendment in penal law and anomalies which still exist in the law in aspect like overlapping of punishment for offences like voyeurism in the ordinance with other special laws and non recognition of offence like marital rape.

Awareness and Attitudes Regarding Prenatal Sex Determination, Pre-Conception and Pre-Natal Diagnostic Techniques Act (PCPNDTA) among Pregnant Women in Southern India.

The present study was conducted to assess the awareness and attitude regarding prenatal sex determination and Pre-conception and Pre-natal Diagnostic techniques Act among pregnant women. A cross sectional study was carried at tertiary care teaching hospitals of Kasturba Medical College in Mangalore, India among 132 pregnant women. Data was collected using a pre-tested semi-structured questionnaire and was analysed using Statistical Package for Social Sciences(SPSS) version 11.5 and results were expressed in percentages. The study included 132 participants and the mean age of study subjects was around 27 y. Majority of the study subjects (91.7%) knew that prenatal sex determination was possible. Three fourth (74.4%) of the participants prenatal sex determination was a punishable offence. One of the participants was ready to terminate pregnancy if sex of the fetus was revealed to be female before second trimester. Majority of participants (67.4%) were willing to educate people about PCPNDT act and motivate them against sex determination and sex selective abortions. Our study showed that higher proportion of participants knew about the prenatal sex determination and it was a punishable offence, still majority of them preferred to know the sex of unborn child which shows the need to implement the act effectively.

Le pseudo-Xénophon et les délits entraînant l’atimie dans l’Athènes de son temps : pour un retour au texte des manuscrits (Constitution des Athéniens III, 13)

In its last paragraph (3.13), Pseudo-Xenophon’s Constitution of the Athenians specifies the sorts of offences which lead to disfranchisement (atimia) in Athens. Since the Renaissance, scholars have always corrected the passage, convinced that originally the verbs “ to say” (λέγειν) and “ to do” (πράττειν) were coordinated, as they often were in Ancient Greek. Corrected in this way, the text indicates three offences which can lead to atimia : failing to hold office justly, failing to say what is just, failing to do what is just. However, the two last offences seem rather vague when compared to the first one, making the correction unsatisfactory. Moreover, such a correction is unnecessary, since the uncorrected text has a perfectly consistent meaning : πράττειν is subordinated to λέγειν, and the author only mentions two types of offences, (1) failing to hold office (ἄρχειν) justly, and (2) failing to advise doing what is just when speaking in the ecclesia (μηδὲ λέγειν τὰ δίκαια πράττειν “ not telling to do what is just”). Such a dual sphere of political action is attested elsewhere in the opuscule, and Attic inscriptions of the fifth century BC confirm that magistrates and orators who were judged guilty risked atimia. It would then have been a favoured punishment for offences committed in the exercise of such functions. We may speculate that atimia assumed that role before being partly replaced by other procedures such as eisangelia and graphè paranomôn, but the inconclusive state of extant evidence compels us to leave the question open.

Retributivist Arguments against Presuming Innocence

Factors justifying not presuming innocence are generally incorporated into the Presumption of Innocence (PoI). A confusing discourse has resulted: numerous guilt-presuming acts are deemed consistent with the PoI. I argue for an unusually broad PoI: any act that might convey to a reasonable actor that he is not presumed innocent of a punishable offence constitutes a PoI interference. Thus, academic debate need only be about the question what PoI interferences are justifiable or unjustifiable. This question must be answered using pro- and anti-PoI values. I analyse three PoI interferences in relation to Duff’s retributivist punishment theory: presumptions of guilt, vicarious liability of car owners and coercing non-suspects into proving their sobriety. Retributivists tend to castigate such procedures based on their (supposed) consequentialist rationale. I argue, however, that they might also be justified on retributivist grounds. The retributivist anti-PoI duty to punish the guilty may be the worst enemy of innocents.

Not Registered

The article caused irritation. From the first line, or even in the title, the term “Mitgabe”—i.e. issuing, or dispensing—is used. This implies a hospital or surgery's dispensing a substitute drug to be taken by the patient under his/her own responsibility. This is not provided for within the Narcotic Drugs Prescription Ordinance (Betaubungsmittel-Verschreibungsverordnung, BtMVV) (§ 5) and therefore not permitted within the framework of the German law governing the prescription of medicines. The guideline of the German Medical Association dated 19 February 2010, No 9, 3rd sentence, is (suggest, for clarity's sake: “also”) unequivocal: “Eine Mitgabe von Substitutionsmitteln aus dem Praxisbestand ist hingegen strafbar [providing substitution medication from the practice's own dispensary is a punishable offense].” Furthermore the authors report that patients from 20 psychiatric hospitals participated in their study. Providing take home medication from the hospital's dispensary is legally not permitted, and professional and ethical regulatory guidelines naturally also apply to the inpatient setting. Regarding the methods, the authors wrote: “5032 patients were registered at the Berlin Medical Association as being on maintenance treatment.” According to § 5a section 2 of the German Narcotics Law, any doctor prescribing substitution medication is under obligation to report immediately the start and end date of every case of substitution treatment in coded form to the substitution registry held at the Federal Institute for Drugs and Medical Devices (Bundesinstitut fur Arzneimittel und Medizinprodukte, BfArM) in Bonn. Ignoring this rule is a regulatory offense under §17 of the narcotics law. On the basis of this obligation, the BfArM is able to determine the number of registered cases of substitution treatment at federal and state levels. Hence none of the 5032 described patients are registered with a medical association. The deficiencies described unfortunately limit the value of the overall conclusion. Further remarks are unfortunately not possible in view of the space restrictions imposed by Deutsches Arzteblatt’s instructions for authors.

The adequacy of China's responses to wrongful convictions

This paper examines a series of reforms that followed the discovery of high-profile wrongful convictions in China since 2005. There have been two waves of criminal justice reforms to prevent future wrongful convictions and to improve China's criminal justice system more generally. But it will be suggested in this paper that China's responses are inadequate because they allow traditional police and judicial practices that will lead to future wrongful convictions to continue. Further reforms will be suggested. First, police interrogations should be fully recorded, and the entire recording should be played back at trial. Second, the role of the defense counsel should be expanded. The use of state secrets as evidence against the accused should be curtailed. The close cooperation between the police, procuratorates and judiciary in the criminal justice should be counteracted by the creation of an independent body to review all serious convictions. Finally, the Chinese criminal justice has proven itself not safe enough to allow the broad use of capital punishment as a punishment for non-violent offences and at the very least, the immediate execution of prisoners who lose their final appeal must be abolished.

Capital punishment in China: A populist instrument of social governance

Contrary to the assumption that authoritarian authorities are insensitive to popular demands for justice, the Chinese penal regime has been highly attentive and responsive to public sentiments since its early days. As an instrument for the authorities to govern the country in the name of the people, capital punishment functioned as a tool for political struggles in Maoist China and later served as a tool to fight crimes in Deng’s reform era. Nowadays, the demands of the masses for revenge, justice and equality have been translated into a fervent passion for capital punishment for certain offences and offenders. By reaching out to satisfy these public demands and sentiments, the party-state hopes to enhance its political legitimacy. In this sense, the death penalty serves as a populist mechanism to strengthen the resilience of the authoritarian party-state by venting public anxiety and resentment towards social problems created in the processes of China’s rapid modernization and social fragmentation.

“Condoms make you lose both the child and pleasure”: perceptions on family planning and contraceptives in Malawi

A qualitative study comprising 91 focus group discussions (FGDs) of adult married men and women and 21 key informant interviews (KIIs) was conducted in Malawi in 2008. The purpose of the study was to explore the knowledge, perceptions and practices towards contraceptives and family planning. Data were analyzed using content analysis. The perceived effectiveness, physical health gains and socio-economic benefits of contraceptives and/or family planning were well recognized by the study participants. Covert use of contraceptives by women was despised by both men and women and considered a punishable offence. Women reported men as less likely to provide support for contraceptive use. A woman’s own relatives were reported to be more likely to support contraceptive use, while her in-laws and friends identified as not as supportive. Concerns regarding adverse health effects of hormonal contraceptive use included vaginal bleeding and delayed return to fertility. Unwanted social or personal consequences were that vaginal bleeding or spotting as a consequence of hormonal contraceptive use limited women’s availability to their male partners for sex, that a woman who was using contraceptives was not fulfilling her childbearing responsibilities and that contraceptive use promoted extramarital sex as there was no more fear of pregnancy. Having a wide range of contraceptives in health facilities or community sources, a supportive healthcare and supportive social network could improve contraceptive uptake.

Community Reparations to Transform Community Desolation

Community Reparations to Transform Community Desolation

‘Bending Closer to the Ground’: Girmit as Minor History

This essay begins with a set of questions. What happens to indenture history when those subject to its logic describe it from their own perspective by coining a new term? What are we to make of an insane Indian woman whom history notices, and admits into the archive, only because she breaches the mental and spatial regulations of those responsible for making history? Is it possible to grapple with a history where the breaking of wind by a prisoner at 8pm constitutes a punishable offence and is duly recorded? 18The ordinary apparatus of historiography 19, writes Ranajit Guha, 18is most at ease when made to operate on those larger phenomena which visibly stick out of the debris of the past 19 and 18tends to ignore the small drama and fine detail of social existence, especially at its lower depths 19 (138). My questions do not relate to the ordinary apparatus of historiography. They concern those phenomena that lie half-forgotten in the lower depths and are deemed to be minor because they have failed the test of significance inside the major event. To answer them we have to descend into the lower depths of indenture history.

Medical Marijuana Lawyers: Crusaders or Outcasts?

While marijuana remains a prohibited substance under federal law – one whose manufacture, possession, or distribution is a serious felony – 17 states plus the District of Columbia have legalized the drug for certain medical uses. This tension between state and federal law creates confusion for all of those who work in the emerging medical marijuana (“MMJ”) industry. As marijuana moves from the shadows to the storefronts, it becomes a business. Businesses have employees, shareholders and leases; they must comply with state and local zoning ordinances and pay their taxes. In most businesses, proprietors turn to lawyers for help with these and other legal issues. Lawyers incorporate businesses, they write leases and employment agreements, they help navigate the labyrinth of regulatory compliance and ensure that taxes are being paid promptly and accurately.This usual relationship is obviously and necessarily complicated by the fact that the manufacture and sale of marijuana remains a federal offense punishable by up to twenty-five years in prison. While a state may choose to de-criminalize, medicalize, or even legalize marijuana, it does not have the power to undo the federal prohibition of the drug. Thus, an attorney engaged by a marijuana practitioner to do the work that lawyers traditionally do for businesses necessarily puts herself at risk. Because all lawyers have an obligation not to knowingly assist criminal conduct – and because their clients’ conduct is by definition criminal – attorneys who do any legal work for MMJ clients face the possibility of both significant ethical and criminal consequences for their actions. In this essay, we discuss the ethical and criminal provisions that impact a lawyer’s representation of those working in the MMJ industry. We show that under traditional readings of both criminal law and the Model Rules of Professional Responsibility, an attorney is prohibited from providing most kinds of legal assistance to a medical marijuana client. We argue, however that a literal reading of the rules would have serious negative repercussions in those states that have enacted MMJ regulations. Without the participation of attorneys, important state policies regarding access to medicine and the allocation of criminal justice resources will be frustrated; where a state has chosen to regulate marijuana as medicine, lawyers are a necessary part of the implementation of that policy decision. There are important limits to this representation, however. Some of these limits are easy to define, while others are far more amorphous. We borrow from the law of accomplice and co-conspirator liability to give shape to the line between permitted and forbidden legal help. We argue that so long as lawyers merely provide the same services on the same terms to their MMJ clients that they do to their other clients, they violate neither their ethical obligations nor the prohibitions of the criminal law. Using specific examples, we give much-needed guidance to attorneys engaged in this emerging and fraught area of practice. Our proposed reading of Rule 1.2(d) establishes that lawyers may generally help MMJ clients address the majority of their legal needs; attorneys may defend MMJ clients charged with violations of the Controlled Substances Act, may serve as lobbyists in challenging federal law and can advise clients about the state of the law. Lawyers may also generally help these clients with compliance work – such as filing for a license to own and operate a medical marijuana dispensary – and may negotiate leases, draft contracts, and advise clients about employment matters. In most instances, we argue, such conduct will not violate Rule 1.2(d) at all because lawyers lack the intent necessary for assistance of criminal activity. In those situations where lawyers’ conduct does violate Rule 1.2(d), we argue, there may nonetheless be arguments for providing legal services to MMJ practitioners, though lawyers proceed here at their peril.

Holocaust Denial: Anti-Semitism as a Refusal to Accept Reality

no abstract

Machiavellian Democracy in the Good Society

Machiavellian Democracy in the Good Society