Scope Of Criminal Law Research Articles

형사절차에서 범죄피해자 지위의 재정립

This paper begins with the question of why the participation of crime victims is necessary in criminal proceedings. Is a procedure that excludes the victim fair? Does the criminal responsibility borne by the defendant realize justice? To answer these questions, a paradigm shift and a reinterpretation of the position of crime victims are needed. First, the paper addresses the fundamental question of why it is essential to find the position of crime victims in criminal proceedings. In the process of answering this question, the concept of restorative justice is introduced. Historically, the legitimacy of state punishment was established by excluding private vengeance. Therefore, a mechanism focused on resolving issues between the parties might be seen as a regression to the era of revenge, posing a potential threat to the carefully constructed criminal justice system. This perspective has led to distortions in the understanding of restorative justice. The paper seeks to correct these distortions by introducing the basic principles necessary for applying restorative justice within the judicial sphere. Finally, it returns to the initial question, finding an answer to why the participation of victims in criminal procedures is essential. It emphasizes the need to consider the various perspectives and positions of those affected by the crime, recognizing the impact on their lives. The paper suggests that we seek answers together regarding the scope of criminal law and the realization of justice.

Criminal law aspects of protecting the rights of minors from involvement in destructive groups and the influence of destructive content

Modern realities show that there is a need to establish responsibility for the involvement of underage children in the activities of destructive groups that do not have a terrorist or extremist orientation, but pose a real danger to the physical and mental health of underage children, their moral and spiritual development. At the same time, the question arises in the use of legislative structures in consolidating such responsibility. Namely, what the concept of involvement covers and whether it will be enough to prescribe responsibility for the fact of involvement in the law. In addition, the question of the concept and signs of a “destructive group” is debatable. The article concludes that the most dangerous are antisocial and antisocial groups, whose activities are aimed at the desocialization, development and consolidation of deviant behavior of children. Many of these destructive movements base their activities on the dissemination and promotion of destructive ideology, including by posting malicious information on the Internet. However, encroachment on the information security of children by producing destructive propaganda content does not always fall under the scope of criminal law, which indicates the need to amend the current legislation.

Criminal Law and Scope of Criminal Law

Criminal Law and Scope of Criminal Law

Forensic psychiatry evaluation of criminal law cases at a university hospital in Eastern Turkey

ABSTRACT This study aimed to determine the epidemiological distribution of the cases referred to the forensic psychiatric assessments according to the reasons for their referral. The medical files of 214 cases referred to the Forensic-Psychiatry Outpatient-Clinic and forensic reports within the scope of criminal law were reviewed retrospectively. 76% of cases were ‘suspected perpetrators’ who were sent for the purpose of determining criminal responsibility, 9.3% were ‘’mentally disordered victims’, 14% were sent to determine ‘victim developing a mental disorder(MD)’. In our study, it was determined that the majority of the suspected perpetrators were male and in the 20–39 age group. Marriage rates were high in both suspected perpetrator groups with(42.2%) or without(39.9%) of MD. The most common diagnosis of suspected perpetrators was schizophrenia/psychosis. Regarding the group sent as perpetrators, it was found that the rate of intellectual disability(ID) has a high rate of 20.2% among all cases, and the diagnoses of substance use disorder(SUD) and personality disorder(PD)were low. Full criminal responsibility was significantly correlated with age, PD, SUD, and pre-criminal substance use. Logistic regression analysis was determined gender and education can predict the perpetration or victimization of individuals with MD. Our findings show that protective-preventive practices specific to risk groups should be developed for the sociodemographic and clinical differences we detected in the Turkish forensic psychiatry sample. In the process of evaluating whether there is a medical problem in the marriage of patients with schizophrenia, possible harm to the spouse and children of the patient should be considered. We are of the opinion that all MD should be evaluated from the perspective of the implementation of preventive security measures, the focus of which is the state of dangerousness.

ILLEGAL ACCESS THROUGH "WIRELESS FIDELITY" IN CRIMINAL LAW

The internet is a sophisticated tool for exchanging information, various fields from law to medical sciences (medicine) have also used the internet on a large scale. The use of wireless fidelity is also quite attractive for those who need free internet access. But it is undeniable that in addition to some people hoping to use the free internet, it will also cause the desire of people who want to use it as a means of other crimes. The purpose of this study is to examine cases of internet data theft through wireless fidelity within the scope of criminal law. Our criminal law as the backbone, namely the Criminal Code, was used to study this problem (historical interpretation) and today there is a Telecommunications Law and an Electronic Information and Transaction Law. While using internet access without someone else's permission, is a violation of the law. Before entering into the study of how much loss quota (intangible objects) were stolen, the perpetrators had actually been able to be suspected by illegal access.

THE SECTORAL CONSTITUTIONAL PRINCIPLES AND CRIMINAL LAW

The work on screen discusses the constitutional principles, with regard specifically to sectoral constitutional principles, in view of the need to delimit the study. The aim was to achieve the application of constitutional principles in the scope of Criminal Law, analyzing some judgments in order to understand the jurisprudential position regarding them.

Aile İçi Cinsel İstismar Mağduru Çocukların Korunması ve Kişisel İlişki Kurma Hakkının Sınırlandırılması

This article reviews the protection of children who are victims of domestic abuse within the scope of criminal law and civil law. The historical development of the protection measures for child victims, who are considered vulnerable, is presented by comparing international law and the situation in Turkish law. The principles of the child’s right to be heard and the child’s best interest are discussed within the context of this article. After briefly mentioning the right of the child to maintain personal relations and direct contact with both parents, it is discussed that the limitation and removal of this right depending on the existence of the allegation of domestic sexual abuse considering the judicial decisions. Recommendations have been made to ensure that children are better safeguarded.

Countermeasures against Unintentional Infringement of Legal Interests by Artificial Intelligence

Purpose: In recent years, the keyword that penetrates our society is the 4th Industrial Revolution. The 4th In-dustrial Revolution can be expressed in many ways, but the most important keyword is “connection”, and the key phenomenon from the perspective of this connection is the development of AI. The 4th Industrial Revolution and the impact of artificial intelligence are more than we think, and each academic division in society is discussing how to respond to it, and criminal law is no exception. In particular, fierce debate continues as to whether the criminal law will recognize the criminal subjectivity of AI, and whether punishment for artificial intelligence will be possible. With the development of AI, infringement of legal interests, whether intentional or unintentional, can become a reality. When users and developers intention-ally use artificial intelligence for crimes, AI becomes a human tool. The question is how to deal criminally with cases where legal interests are violated by intellectual activities or source code errors of AI, although not intended by users or developers. However, the premise to think about this is that AI technology is not complete. In other words, in the event of unintentional infringement of legal interests by AI, punishing humans based on this can have a contraction effect on development, resulting in a regression of AI technology with clear social utility. Method: Therefore, this study examines how the criminal law should respond in the event of infringement of legal interests while human factors by AI is excluded. To this end, we first look at the current status of criminal law responding to AI. Here, we will first examine whether a specific operation of AI will be included in an act that is the scope of criminal law, and, if so, whether to recognize criminal identity to AI that caused such a specific operation. Results: Through this process, the specific operation of AI can be subject to criminal law, and furthermore, if there is an infringement of legal interests by AI, it is confirmed that there is room for a crime. However, it is as-sumed that the action of AI is only unintentional infringement in which human elements are excluded. AI infringes on legal interests by human factors because it has the same meaning as human tools. Conclusion: Since the ongoing development of AI technology can hinder the development of artificial intelligence technology with clear social effectiveness, it argued that the criminal law should be supplemented after administrative procedures.

ASPEK HUKUM TINDAK KEKERASAN TERHADAP PESERTA DIDIK OLEH PENDIDIK DALAM PERSPEKTIF HUKUM PIDANA DAN HUKUM PIDANA ISLAM

Structural violence is systemic and invisible violence, but destructively breeds extreme, widespread and long-term poverty, death and suffering for children. Structural violence, often referred to as system abuse, can be corrupt practices, collusion and nepotism (KKN), repressive control, monopolistic and exploitative economic practices that harm the state, and in turn create socioeconomic conditions that give birth to and nourish the roots of poverty and social violence against children. One of the portraits of structural violence is child and woman trafficking. They are generally traded for employment in illegal and dangerous places, such as in wild mining, nightlife and prostitution. The problem of the lack of efficiency of various laws (uu) and presidential decrees (Keppres) is as a guarantor of the implementation of child protection assigned in the regulation has no role, and only revolves around cases and penalties, so that interested parties do not receive their rights reasonably. If it already exists then the authorities provide protection against cases of receiving child abuse treatment is actually implemented, then there is no longer any reason for the authorities to protect the party not to carry out its human obligations. This research is done by building a theory that refers to the provisions of the laws and regulations, the opinions of legal experts written in books or scientific journals of legal science. In the research, it also takes the opinion of practitioners, both those who are state apparatus, law enforcement and legal practitioners who are known to be consistently within the scope of criminal law. The research specification is descriptive analytical because the study will reveal and analyze the legal symptoms that exist at this time. In this study described various problems and facts related to reform and criminal law policy.

Проблемы конструирования состава преступления, устанавливающего уголовную ответственность за нарушение правил дорожного движения лицом, подвергнутым административному наказанию и лишенным права управления транспортными средствами (статья 2642 Уголовного кодекса Российской Федерации)

Relevance. The need to comply with the legislative technique rules, in its broad sense, to comply with the social conditionality requirements, consistency and scientific validity when making changes to the Criminal Law and constructing the corpus delicti is recognized by scientists, practitioners and updated in connection with the introduction of Article 2642 of the Criminal Code of the Russian Federation. The purpose of the study is to identify problems related to the construction of the corpus delicti establishing criminal liability for violation of traffic rules by a person subjected to administrative punishment and deprived of the right to drive vehicles (article 2642 of the Criminal Code of the Russian Federation). The objectives of the study are to identify controversial aspects related to the legislative technique rules, the social conditionality requirements of the criminal law norm, as well as the need to comply with the requirements of consistency and scientific validity of the Criminal Law amendments. The research methodology is based on the use of general scientific methods such as analysis and synthesis, induction and deduction, formal logic and dialectical approach, comparative studies, as well as the method of a sys-tematic approach to achieve goals and objectives. Results. As a result of the conducted research, the problems associated with the construction of the corpus delicti provided for in Article 2642 of the Criminal Code of the Russian Federation and the legislative technique rules, as well as with the absence of socio-legal prerequisites (grounds and conditions) for criminalization as an independent corpus delicti, were identified. Conclusions. The using administrative prejudice for expand the scope of criminal law to relations that are not by their nature criminal law is unjustified. A large positive effect from the introduction of Article 2642 of the Criminal Code of the Russian Federation is unlikely, because the existing experience of such additions and changes in the Criminal Code of the Russian Federation does not allow us to hope for this. We believe that the legal and technical rules in the construction of criminal law prohibitions need a deep and thorough study.

Problems of Implementing the Criminal Procedure Policy in Crime Prevention

The authors use a communicative approach to the theory of law in their analysis of criminal procedure policy and its role in crime prevention. This approach allowed them to determine the content of criminal procedure work that lies outside the scope of criminal law. This content is its ability to regulate social conflicts of criminal law character. Within this framework, the criminal procedure is viewed as a platform for resolving social conflicts, the sides use it to resolve a conflict between them in socially acceptable ways in the process of communication. The involvement of the aggrieved party in the process of communication in connection with the crime intensifies the correctional impact of the criminal process and its significance for crime prevention. The authors suggest using simplified measures of criminal procedure law for reforming this process and basing it on the procedure of terminating a criminal case with the imposition of a court fine as a measure of criminal law influence. They suggest using the same approach when terminating a criminal case due to the reconciliation of the sides, with one exception: during the reconciliation of the sides, only grounds provided for in Art. 76 of the Criminal Code of the Russian Federation should be proven. If they are established, the investigator is obliged to petition to the court and the court, having established their validity, should decide to terminate the criminal case.

²�������� ��˲�� � ������� ������ί �������ί �����

The article considers the problem of general awareness of the legally significant properties of military offences (crimes, misdemeanours), their relationship with other types of offences, which is actually an urgent task, especially for the science of military law and the integration of legal science � general theory of law. Based on the analysis of terminological and conceptual aspects of military offences (crimes, misdemeanours), their own typology, legal features and features of the composition, the author of the article proposes their generalized definition as �military torts�. The study of the essence and content of military tort as a phenomenon of modern legal science, as well as ways to prevent, detect and stop it, is a special, special law enforcement tool within the leading institute of military law. Further study of the phenomenon of military tort provides an opportunity to form an independent complex scientific field - military tort. It is proved that the causes and conditions of offences in the Armed Forces of Ukraine involve a complex set of factors, processes and phenomena. At the same time, they are characterized by a number of features due to the specifics of military service and the activities of troops (forces). For example, the activities of personnel, internal order, military life and other military-public relations, which are regulated as much as possible by the rules of military statutes. In addition to military statutes, military-public relations are regulated by other rules of law, for example, the scope of criminal law is much broader � servicemen are responsible for committing both general crimes and military criminal offences. Considering the subject of research, which is a �military tor� as a phenomenon of modern legal science, it should be noted that in the theory of law and in the practice of personnel in the direction of legal support of military formation used phrases such as �military administrative offences�, �criminal offences�. Against the established order of military service (military criminal offences)�, �war crimes�, �military and disciplinary offences in the military sphere�, �criminal order or instruction �, etc. Therefore, there is a problem in determining the meaning of terms, and there are several reasons for this. The first, classic - the definition of the term allows you to outline the subject of research and discussion, the range of related problems. Another is the problem of the spread of offences in the military sphere, i.e. ensuring the national security and defense of Ukraine, due to its specificity is global (phenomenal) and therefore can be most effectively solved only if joint efforts are made at both international and national levels. Ensuring their effective interaction directly depends on a consistent understanding and interpretation of terminology in the direction of the study of lawful behaviour or the causes and conditions of deviant �tort� behaviour of service members. Thus, we see that the epistemological processes of formation of military torts as a phenomenon of scientific and legal category is characterized by a certain inconsistency, ambiguity and fragmentation, generated by situational aspects of necessity. However, we can determine that a military tort is a set of illegal (anti-social) acts (crimes or misdemeanours) provided by the current criminal legislation of capable subjects of military-public relations, encroaching on the foundations of national security, organization of the Armed Forces of Ukraine and public order. Understanding and understanding of the acquired knowledge should be the basis for improving the institution of legal responsibility of servicemen in the military sphere as a fundamental means of protection, mechanism, guarantor, designed to ensure regulatory, protective and protective function of military law, without which the existence and development of modern Ukrainian army is impossible.

THE JUDICIAL CONSTRUCTION RELATING TO THE TERRORISM CASES (REALITY AND PROSPECTS)

The current study aims to discuss and investigate one of the most prominent and important issues that has been in constant debate in all the previous researches and studies dine in the scope of criminal law ; especially those regarding the juridical construction relating to the terrorism cases. The main attempt of this research is to evaluate the criminal policy of the Libyan Legislation issuing law no.3 for the year 2014 concerning Terrorism combating. Disregarding the recent issuing of the law in subject, the above-mentioned law is of great importance due to its high concern of the juridical apparatus of combating terrorism. However, what makes a wonder herewith is the Libyan legislation has been taking a step backwards when the law (4) was issued in 2017 in regarding of the amendment of the provisions of both the Military Penal Code and the Code of Military Procedures which has already mandated the judiciary of offenders of terrorism according to the terms identified in Article 3. Herewith, the perception of the effectiveness and functionality of the above-mentioned law is not possible without paying the attention to reviewing the jurisdiction from one hand and the working conditions of the judges from the other hand. However, the good conduct of the judges’ work depends heavily on doing several improvements for these apparatus, in addition to promoting the juridical capabilities by supporting these apparatus with the modern facilities, utilizing the experience of the developed countries in this regard. Therefore, the prospects are addressed to developing the juridical construction properly according to the principles of the defense rights and the fair trial as these principles are the constitution fundamentals and the traits of the criminal-justice system.

Discriminalization: Reevaluating Sexuality, Punishment, and Human Rights

After decades of pressing for the decriminalization of same-sex conduct, advocates around the globe have increasingly urged states to use the power and authority of criminal law to address bias against lesbian, gay, bisexual, and transgender (LGBT) persons. In dozens of countries as diverse as Angola, Ecuador, Malta, Mongolia, and Taiwan, lawmakers have criminalized various forms of anti-LGBT conduct and proscribed them with lengthy periods of incarceration. This embrace of criminalization has often been articulated in the language of human rights, using that framework to expand rather than curb the scope of criminal law. In this Article, I look to debates over LGBT rights to analyze what I call discriminalization, or the adoption and application of carceral penalties for discriminatory conduct. I argue that the growing use of discriminalization raises difficult questions about anti-discrimination law and human rights, which necessitate an appreciation of the injuries inflicted by discrimination, the injuries inflicted by carceral punishment, and the complexities of a framework that meaningfully protects human rights when these harms are in tension. The Article explores these questions in three parts. Part I reviews critiques of criminalization, and particularly carceral punishment, as a response to offenses targeting marginalized groups. I draw in particular from racial justice literature and critiques of carceral feminism to map out some of the complexities of using criminal law to demonstrate that targeted violence is being taken seriously. Part II documents some of the ways that LGBT advocates have embraced discriminalization in recent years, focusing on three issues – discrimination in areas such as employment, housing, and the provision of goods and services; demeaning or degrading speech; and so-called “conversion therapy,” or efforts to change someone’s sexual orientation or gender identity. Using a data set of LGBT-inclusive anti-discrimination laws in these three areas, I chart how discriminalization has been enshrined in law and practice, and raises questions that extend beyond the LGBT context to anti-discrimination law more generally. Part III asks whether the human rights framework offers any useful tools for those who wish to take stigmatic harm seriously while keeping the creep of the carceral state at bay. I consider dignity-maximizing approaches, abolitionist frameworks, and proportionality as three avenues that human rights advocates might take to mediate this tension. By drawing a distinction between the doctrinal strictures of human rights law and the discretion that human rights advocates utilize in practice in deciding when and how to advance LGBT rights, I propose a modified proportionality approach for advocates that attends to both the specificities of anti-LGBT hostility and the conditions of criminalization in a given context. Such an approach is more flexible, pragmatic, and attuned to grounded notions of justice than the absolutist positions that have thus far guided discriminalization debates. I conclude by acknowledging the limits of such an approach, arguing for a principled retreat from discriminalization and a stronger emphasis on proactive measures to address stigma.

LGBT Rights and the Constitutional Court: Protecting Rights without Recognizing them?

This chapter explains how the Indonesian Constitutional Court (Mahkamah Konstitusi or MK) protects the rights of the LGBT through the decision number 46/PUU-XVI/2016 (hereinafter the LGBT case), that was decided at the end of 2017. In a 5-4 decision, the Constitutional Court rejected a petition by some conservative Muslim organizations under the banner of Love Family Alliance (Aliansi Cinta Keluarga or AILA), which asked the Constitutional Court to interpret several provisions of the Indonesian Criminal Code including the article 292 that punished adults who committed obscene acts against children, so the article can also criminalize adults that doing the same-sex activities. In this case the Constitutional Court did not make a bold interpretation that stated if the attempt to criminalize LGBT as unconstitutional, they only stating that the legislature rather than the Constitutional Court was the proper institution to expand the scope of criminal law, so the claimant aspiration should be channeled to the drafting process of the new criminal code which at that time is taken by the government and the legislature. However, the absence of such a bold interpretation did not make this decision fail to protect the rights of the LGBT, in fact, throughout a decision that can be categorized as a weak-form review, the Court successfully protect the rights of the LGBT. This happens because there is a recent development in the drafting process of the new criminal code, one of them is an agreement between the government and the legislature to not incorporate the provisions that criminalize LGBT. Since the political institutions in Indonesia do not have a traditions that respect the independence of the Court, combined with a condition when almost 90% of the people in Indonesia still seeing LGBT as a threat to their life, this decision was clearly successful, because, in addition to being able to protect the LGBT community, it also able to maintain the legitimacy of the Constitutional Court in the eyes of the Indonesian public.

Urgency of Legal Indigenous Communities' Position in Indonesian Constitutional System

Customary law community or Masyarakat Hukum Adat (MHA) in Indonesia has their own uniqueness and peculiarity in establishing relationships with the people and the surrounding environment. Along with the development of the era, the MHA experienced the complexity of the conflict of interest on the land tenure for business purposes or Hak Guna Usaha in the civil sphere, as well as conflicts within the scope of criminal law. The research analyzes legal indigenous communities’ position in the protection of normative law. The method used is normative or doctrinal law research that leans to a qualitative (non-numeric) based on secondary data which is analyzed qualitatively. Recognition and protection of the MHA in Indonesia is experiencing an uneasy phase. Since the independence of Indonesia the existence of MHA has only received adequate portions in the era of reformation with the Amendment of the Constitution 1945, enshrined in the Article 18b Paragraph 2 and Article 28i Paragraph 3, eight laws, and at least 22 (twenty two) regulations of the region either in the province, or regency/city, or decree of the local head of the area that recognizes the existence of the Communities. Nevertheless, the upper position of the MHA is felt not to provide maximum assurance and protection forthe Communities. The Indonesian House of Representatives (DPR) through the right of initiative encourages the draft law on MHA which currently becomes a national legislation program and become a priority in 2020 in providing recognition, protection, and empowerment of MHA. With the initiatives of the Bill, it is expected that the problems experienced by indigenous peoples are reduced drastically.

Expedited Pre-Trial Proceedings in Criminal Cases: Prospects of Development

The article discusses the issues concerned with the creation of a new model of summary proceedings that will not be unduly burdensome, will be consistent with the needs of law enforcement and allow to secure protection of the rights and lawful interests of persons involved in criminal proceedings to the full extent. The author analyzes the draft law that introduces the concept of a criminal wrong-doing. The article supports the idea that the prerogative to terminate criminal proceedings against a perpetrator who has committed a criminal wrong-doing belongs exclusively to the court. The court should resolve the matter during the court hearings with the participation of the suspect (accused), counsel for the defense, victim, his representative, prosecutor. Dealing with the file in a case with regard to the termination of criminal prosecution and application of measures of criminal character the court during the court hearings decides the issues of fact concerning the crime committed and only then it can resort to the measures having effect within the scope of criminal law. The author comes to the conclusion that the provisions of the draft law provide a significant reserve for optimization of pre-trial proceedings. The author analyses the recorded form of proceedings in criminal wrongdoing cases in the legislation of Kazakhstan, as well as the model of writ proceedings applied in criminal procedure of Kazakhstan. It is concluded that the imposition of a sentence without court hearing in the absence of the defendant and other participants of the trial does not meet the requirements of contemporary justice. The author comes to the conclusion that it is highly promising to establish a shortened period of pre-trial proceedings (10 days) for criminal cases against persons who have committed a criminal wrong-doing or any other crime of minor or medium gravity, a criminal prosecution for which can be dismissed with the application of measures of criminal nature. It is also possible, that requirements concerning providing evidence in a number of criminal cases will be reduced.

Lietuvos baudžiamosios teisės bendrosios dalies teisėkūros ir mokslo aktyvumo tendencijos

The Article is only a part of combined scientific research. The objective of this scientific research is to determine, whether the General Part of the Criminal Code of the Republic of Lithuania over twelve years of validity has retained its integrity and ability to ensure its key tasks. The Article analyses the amendments of the General Part of the Criminal Code and Lithuanian criminal law research output in the scope of criminal law’s general part. The research has revealed the main tendencies of legislative and scientific activity related to separate chapters of the General Part of the Criminal Code; it has also identified the causes (or preconditions) of these tendencies and projected their further development. 47.2 % of the Articles of the General Part have been corrected (20% less than the Articles of the Special part), after the reform of the Criminal Code (2000) had come into force. It is emphasized in the Article, that the main factor affecting the amendments of the General Part of the Criminal Code is the implementation of EU legislation. The major part of these amendments is related to penalties, penal sanctions and the imposition of them, whilst the chapters providing criminal act; stages and forms of it; circumstances eliminating criminal liability; and features of criminal liability of minors, have been corrected rarely. The science of Lithuanian criminal law is focused on more fundamental issues of general part. In the scope of criminal law’s general part, the half of the research output consists of the publications, whose research objective is the matters of the first three chapters of the Criminal Code (“General Provisions”; “Validity of a Criminal Law”; “Crime and Misdemeanour”). The research output of the general part of the criminal law is based on the works of the following Lithuanian scholars: A. Abramavicius, A. Baranskaitė, E. Bieliūnas, S. Bikelis, A. Cepas, R. Draksas, A. Draksienė, O. Fedosiuk, A. Gutauskas, A. Nevera, V. Piesliakas, J. Prapiestis, E. Riaubaitė, G. Sakalauskas, D. Soloveicikas, G. Svedas, etc. These three institutions have released the majority of all publications: Mykolas Romeris University; Law Faculty of Vilnius University; and Law Institute of Lithuania. The most productive year in the scope of the General Part of the Criminal Code is the year 2006.

Comparative Criminal Law: An Economic Perspective

Abstract This paper develops an economic model to explain how societies make decisions about criminal law based on efficiency. The scope of criminal law depends on activities considered harmless or harmful. Besides different scope of criminal law, different societies can also have different punishments for certain kinds of crimes. This divergence stems from the relative importance of factors that societies consider in optimizing social loss from criminal activities. These factors are: the harmfulness of the crime, retributive or regretful emotions towards offenders or what is called “humanity of punishment” and the deterrent effect of certain punishments. Different attitudes towards these aspects lead to differences in criminal law. Once sources of divergence have been identified, the key question is who decides the above features? The answer depends crucially on the political constitution of the society. In authoritarian systems, the central planner formulates the criminal law; in democratic systems “public opinion” can have different degrees of influence. The most common style in forming criminal justice policies in advanced democracies is “insulated delegation” or “professionalization of punishment,” in the hands of the academic elite.

Rethinking Strict Liability Felonies: The Need for a Constitutional Mens Rea Requirement in the 'Republic of Statutes'

In Morissette v. United States, the Supreme Court interpreted a federal statute that did not include any explicit mens rea element as requiring proof of criminal intent or blameworthiness for a conviction. The Court noted that the statute penalized theft, a malum in se (wrong in itself) crime that traditionally included a mens rea element. Because theft is a malum in se crime with deep roots in the common law, the Court held that the statute should be construed as including an implicit mens rea requirement. In its decision, the Court distinguished between malum in se offenses and “public welfare” (or malum prohibitum, wrong because prohibited) offenses, holding that the latter, but not the former, may omit mens rea requirements.In this Article, I argue that strict liability felonies should be uniformly unconstitutional. In the decades since Morissette, the proliferation of criminal statutes has changed the nature and scope of criminal law. Many strict liability criminal statutes lack a common law pedigree and cannot be characterized as malum in se crimes, but also carry severe penalties and are not “regulatory” in the sense envisioned by the Morissette court. These novel crimes raise a host of rule of law problems that could be mitigated by a constitutional mens rea requirement. In particular, statutes that impose no-fault criminality rely on the judgment and discretion of law enforcement officials and prosecutors to perform the traditional function of mens rea and target only those who act in a morally blameworthy manner. This subverts the rule of law and is constitutionally impermissible.