Fast Action Can Erase Unlawful Conduct

2020 ◽  
Vol 43 (6) ◽  
pp. 1-2
Keyword(s):  
Unlawful Conduct

scholarly journals Thoughts on the principle of ne bis in idem in the light of administrative and criminal sanctions for the legal protection of animals

2021 ◽  
Vol 16 (31) ◽  
pp. 7-22
Author(s):  
Krisztina Bányai
Keyword(s):  
Animal Welfare ◽  
Legal Protection ◽  
Constitutional Court ◽  
The European Union ◽  
Criminal Sanctions ◽  
European Court ◽  
Ne Bis In Idem ◽  
Unlawful Conduct ◽  
Administrative Sanctions ◽  
Cruelty To Animals

According to the well-developed interpretation of the principle of the ne bis in idem in the case law of the Court of Justice of the European Union and the European Court of Human Rights, the same conduct cannot be the subject of two proceedings or santions with similar functions and purposes. In Hungary the Constitutional Court has interpreted the rules of the ne bis in idem in administrative and criminal procedure for animal welfare fine and sanctions for cruelty to animals in Decision 8/2017. (IV.18) AB and the legislator settled its rules in Act on administrative sanctions which came into effect from the 1st of January, 2021. The recent study through practical issues approaches how principle prevails, its problems and possible solutions in the field of unlawful conduct in animal welfare, in particular regarding the role of the prosecutor.

6. Manslaughter

2019 ◽  
pp. 163-217
Author(s):  
John Child ◽  
David Ormerod
Keyword(s):  
Common Law ◽  
Legal Reform ◽  
Self Control ◽  
Loss Of Self ◽  
Actus Reus ◽  
Corporate Manslaughter ◽  
Unlawful Conduct ◽  
Partial Defences ◽  
Diminished Responsibility

This chapter focuses on manslaughter, a common law homicide offence with an actus reus of unlawful conduct causing death. The chapter considers two categories of manslaughter: voluntary manslaughter and involuntary manslaughter. Voluntary manslaughter arises where D commits murder, but meets the criteria for one of the partial defences: loss of self-control, diminished responsibility, or suicide pact. Involuntary manslaughter arises where D does not commit murder, but commits a relevant manslaughter offence: unlawful act manslaughter, gross negligence manslaughter, or reckless manslaughter. The chapter explains statutory offences of unlawful killing (corporate manslaughter, driving causing death, infanticide, killing of a foetus) and concludes by outlining options for legal reform concerning voluntary manslaughter, involuntary manslaughter, and the structure of manslaughter offences. Relevant cases are highlighted with a summary of the main facts and judgment.

The In Pari Delicto Defense for Auditors in Professional Negligence Cases: Imputation of Managers’ Unlawful Acts to the Client Firm

2015 ◽  
Vol 5 (2) ◽  
pp. 193-226
Author(s):  
Stephen E. Blythe
Keyword(s):  
New York ◽  
Balance Sheet ◽  
Financial Accounting ◽  
Financial Accounting Standards Board ◽  
Auditor Liability ◽  
Sarbanes Oxley ◽  
Client Firm ◽  
The 2008 Financial Crisis ◽  
Unlawful Conduct ◽  
Term Benefit

AbstractThe Enron scandal, the Sarbanes-Oxley Act and the 2008 financial crisis have resulted in new laws and regulations regarding auditor liability and an evolution of some of the old ones. One of the older laws is the in pari delicto defense: in a lawsuit brought by a corporation alleging that its auditor was negligent in failing to detect a manager’s fraud, the auditor may be able to use that defense if the manager’s fraud is imputable to the company. Since a bankruptcy trustee or a receiver steps into the shoes of the bankrupt company it represents, a similar defense (the Wagoner Rule) may also be applicable if a trustee or a receiver files a negligence lawsuit against the company’s auditor. However, in pari delicto is inapplicable when: (1) the wrongful acts of the manager are so adverse to the corporate client that the manager is deemed to have totally abandoned the corporation for its, or a third party’s, sole benefit (unless the manager is also the sole shareholder, or the company has incurred a short-term benefit because of the fraud); (2) the corporate client had at least one innocent manager or shareholder who could have prevented or stopped the fraud if he had known about it; (3) the auditor does not deal with the corporate client in good faith and engages in unlawful conduct; or (4) the plaintiffs are totally innocent shareholders (but in this case, the in pari delicto defense is still applicable with respect to culpable shareholders). The State of New York has been on the cutting edge in the evolution of the in pari delicto defense, and this defense is strongest there. Other states recognizing the defense include New Jersey, Pennsylvania, and (in dicta) Delaware (only if the company has engaged in actual wrongdoing). Finally, these are examples of recent evolution of in pari delicto: (a) the Sarbanes-Oxley Act’s prohibition of management from interfering with or deceiving the auditor; such statutory violations of management could be used by the auditor at trial in proving the applicability of the in pari delicto defense and (b) the new constraints on off-balance sheet leases, expected to be released shortly by the Financial Accounting Standards Board, may decrease management’s ability to deceive the auditor in the first place.

‘Pretaliatory’ Enforcement Action for Chilling Whistleblowing through Corporate Agreements: Lessons from North America

2018 ◽  
Vol 46 (3) ◽  
pp. 427-453 ◽  
Author(s):  
Olivia Dixon
Keyword(s):  
Cultural Change ◽  
Codes Of Conduct ◽  
The United States ◽  
Regulatory Function ◽  
Speaking Up ◽  
Enforcement Action ◽  
Legitimate Interests ◽  
The Government ◽  
Right To Communicate ◽  
Unlawful Conduct

Studies have shown that potential whistleblowers are reluctant to report misconduct because they fear retaliation. In Australia, fear of retaliation is exacerbated for private-sector employees where the lack of prescriptive legislation aggravates vulnerability in all but exceptional circumstances. Through examining the codes of conduct of Australia's 100 largest listed companies (‘Codes’) this article argues that while Codes have the potential to provide an important regulatory function through facilitating whistleblowing, the breadth of confidentiality undertakings contained therein may instead be chilling potential whistleblowers from speaking up. While companies have legitimate interests in protecting confidential information, it is well-established that employees may disclose their employer's unlawful conduct to the government, even if such disclosure is in violation of the company's confidentiality policy. To affirm this right, in the United States (US), federal regulators have recently taken ‘pretaliatory’ enforcement action against companies for requiring employees to execute confidentiality agreements that stifle the reporting of possible violations of federal laws. Such regulation by enforcement has successfully effected cultural change through facilitating widespread amendments to US corporate confidentiality agreements. Accordingly, this article argues that any future Australian legislation should include an ‘anti-confidentiality provision’ similar to the US and Canadian frameworks to affirm an employee's right to communicate with a regulator directly, despite any purported agreement or corporate policy to the contrary.

UN peacekeeping operations: when can unlawful acts committed by peacekeeping forces be attributed to the UN?

Legal Studies ◽  
2012 ◽  
Vol 32 (2) ◽  
pp. 282-301 ◽  
Author(s):  
Russell Buchan
Keyword(s):  
Legal Framework ◽  
Effective Control ◽  
Un Peacekeeping ◽  
The Icj ◽  
Peacekeeping Forces ◽  
Peacekeeping Missions ◽  
Unlawful Conduct ◽  
International Law Commission ◽  
And Control ◽  
The Military

UN peacekeeping missions operate under the authority of the UN. However, the military personnel that constitute a UN peacekeeping mission remain organs of the states from which they are contributed. Thus, whether unlawful acts committed by peacekeepers can be attributed to the UN is dependent upon whether the peacekeeping force can be regarded as being under the direction and control of the UN. This is a question of fact. According to the ICJ and the International Law Commission, unlawful acts committed by peacekeeping forces will be attributed to the UN only where the UN exercised ‘effective control’ over the commission of the unlawful act. In contrast, the ECtHR has consistently propounded a very different test, asserting that unlawful acts will be attributed to the UN only where the UN retained ‘ultimate authority and control’ over the peacekeeping mission. I argue, however, that neither of these tests provides a suitable legal framework for determining attribution of unlawful conduct in the context of UN peacekeeping missions. After outlining the deficiencies of these tests, I submit that a more suitable approach to determining attribution would be based upon the overall control test as outlined by the ICTY in Tadić.

scholarly journals The evil and crime: moral and legal dimension

2015 ◽  
Vol 2 (2) ◽  
pp. 234-241
Author(s):  
A D Kerimov ◽  
E V Halipova
Keyword(s):  
Moral Responsibility ◽  
Intrinsic Value ◽  
Criminal Policy ◽  
Criminal Procedure ◽  
The State ◽  
Philosophy Of Law ◽  
The Government ◽  
State Of Affairs ◽  
Unlawful Conduct ◽  
Good And Evil

The article, in fact, a response to the ideas contained in the monograph A.I.Aleksandrova "evil philosophy and the philosophy of Crime (questions of philosophy of law, criminal policy and criminal procedure)." Readers are invited to meditation, inspired by philosophical and legal views A.I.Aleksandrova on such fundamental issues as the understanding and the ratio of good and evil crimes and atrocities, socially approved, lawful and unlawful conduct, political and moral responsibility of the government of the state of affairs in the field of the fight against crime, the intrinsic value of education, education and education not only youth, but also all citizens of the state of organized society, and others.

scholarly journals Terms of Origin of Liabilities on Compensation for Moral Damage

2019 ◽  
pp. 70-80
Author(s):  
Oleksandr BUKHANEVYCH
Keyword(s):  
Initial Conditions ◽  
Causal Relation ◽  
Damage Effect ◽  
Property Damage ◽  
Emotional Suffering ◽  
Personal Rights ◽  
Moral Damage ◽  
Property Losses ◽  
The Individual ◽  
Unlawful Conduct

The article investigates the terms of origin of liabilities on compensation for moral damage and development of proposals and recommendations on this issue. It is indicated that the basis of compensation for moral damage is the general tort envisaged in Art. 1167 of the Civil Code of Ukraine “Bases of responsibility for the incurred moral damage”; the initial conditions are availability of moral damage, unlawful conduct of the person who has inflicted the damage, the availability of relations between cause and effect, guilt. The signs of moral damages include the following: self-harm which can be inflicted either with or without property damage; non-property damage, as non-property sphere of physical person suffers i.e. mental health; the damage which may occur due to violation of property or non-property personal rights; the damage which is a derivative of property damage and is initial in case of humiliation of honour, dignity and business reputation; the damage which is manifested through the emotional suffering of an individual; the moral damage generated only due to significant emotional suffering of the individual but not due to any excitement or a common nuisance and it cannot cause a significant impact on the life, activity and human conduct; a property nature of compensation for moral damage. The availability of moral damage is a compulsory condition of liabilities on compensation of moral damage. Thus, it is necessary to apply the presumption of moral damage in case of violation of all personal non-property rights and the benefits of an individual. It is reasonable that compensation of moral damages should always have a property character, because it is an independent event of civil liability, which should spawn an occurrence for offender of additional property losses. It is noted that the task of any moral damage can be unlawful in case either the norm of civil law or the personal non-property right of an individual is violated and if the person who has inflicted the damage, was not authorized to do it. The unlawful nature and the forms of unlawful conduct of the person who has inflicted the moral damage (action, inaction, decisions) depend on the types of violations. It is pointed out that establishment of causal relation as unlawful violation of the civil right of a person (cause) and the onset of moral damage (effect) allows clarifying: 1) the availability of a civil offence; 2) the subject of liability; 3) the amount of compensation for moral damages. The initial principle of compensation for moral damage is the guilt of the person who has inflicted the moral damage, which means subjective expression of the person's attitude to his unlawful acts and their consequences. In some cases it is necessary to find out the form of guilt of the person who has inflicted the moral damage in order to make him liable for such damages.

scholarly journals Waiver of the Right (Loss of the Right) to a Confrontation by Committing an Unlawful Act (Forfeiture by Wrongdoing)

2019 ◽  
Vol 13 (2) ◽  
pp. 322-331
Author(s):  
Artur Ghambaryan
Keyword(s):  
The Right ◽  
Unlawful Conduct ◽  
Theoretical Issues ◽  
Trial Participants ◽  
Court Hearing

The article deals with a number of theoretical issues of the waiver, in particular, the concept and types of waiver of the right to a confrontation. The author shows the correlation between the concepts «waiver of the right» and «loss of the right» and points out that when a person commits an unlawful act, he waives the right to a confrontation and hinders the normal course of court hearings through the unlawful influence on trial participants, evasion from proceedings or unauthorized leaving of a courtroom. If the defendant impedes the natural progress of court hearings, he is warned about the possibility of being removed from the courtroom if the unlawful conduct does not stop. If he continues to commit unlawful acts during the court session, then he in fact waives his right to participate in the court hearing and the right to a confrontation (loses these rights). The author points out that in practice there are cases when the accused person evades the investigation and stays on the wanted list for years or when a person leaves for another country to evade the investigation and, as a result, is deprived of an opportunity to interrogate the witnesses who testified against him because these witnesses are no longer available, for example, they have died, or are in the country where the crime was committed. The author also considers the situations when the accused leaves the court hearing without authorization as a waiver of the right to confrontation. In this case the accused does not insist on his right and waives these constitutional privileges because he was given a right to confrontation but chose not to use it and not to meet the witnesses who have testified against him.

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