Overcoming of Corruptogenic Factors of Criminal Legislation: Concept and Main Methods

10.12737/5503 ◽  
2014 ◽  
Vol 2 (9) ◽  
pp. 68-75
Author(s):  
Сергей Иванов ◽  
Sergey Ivanov
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Law Enforcement ◽  
Criminal Law ◽  
Positive Role ◽  
Legal Nature ◽  
Rational Explanation ◽  
Definition Of ◽  
Criminal Matters ◽  
Criminal Legislation

This article deals with the definition of overcoming the corruptogenic factors of the criminal law; notes its positive role in combating corruption in the criminal justice and highlights the main features: universality, casuistry, functional character, law-enforcement level of the implementation. This article discusses some of the most important ways of overcoming the corruptogenic factors of the criminal law: the uniformity of practical activity (the same understanding and application of the criminal law to all situations with a similar set of actual data and identical criminal-legal nature); motivation (rational explanation subject to enforcement activities of the reasons and circumstances underlying the decision on this or other legal and penal question) and formalization of the decision-making (development and implementation of the criminal law or court practice on certain criteria that must underlie the adoption of any authority of any decisions in criminal matters and to narrow the scope of his discretion); raising the level of legal awareness of subjects of criminal-law relationships.

The Limitations of the Harmonisation of Criminal Law in the European Union Protected by Articles 82(3) and 83(3) tfeu

2018 ◽  
Vol 26 (4) ◽  
pp. 315-334
Author(s):  
Kaie Rosin ◽  
Markus Kärner
Keyword(s):  
European Union ◽  
Criminal Justice ◽  
Criminal Law ◽  
Justice System ◽  
The European Union ◽  
Judicial Cooperation ◽  
Minimum Standards ◽  
Legislative Procedure ◽  
Definition Of ◽  
Criminal Matters

Articles 82(3) and 83(3) tfeu give Member States the possibility to suspend the legislative procedure of eu criminal law. Article 82(3) allows that kind of emergency brake mechanism for the process of adopting minimum standards for harmonising rules of criminal procedure enhancing judicial cooperation in criminal matters and Article 83(3) for establishing minimum rules concerning the definition of criminal offences and sanctions. A Member State can only use the emergency brake clause when the proposal for the directive would affect the fundamental aspects of its criminal justice system. This prerequisite deserves a closer analysis, therefore the aim of this article is to interpret the meaning of tfeu articles 82(3) and 83(3) to better understand the limitations of the harmonisation of criminal law in the European Union.

Criminal Justice beyond National Sovereignty. An Alternative Perspective on the Europeanisation of Criminal Law

2015 ◽  
Vol 23 (1) ◽  
pp. 11-31 ◽  
Author(s):  
Jannemieke Ouwerkerk
Keyword(s):  
Criminal Justice ◽  
Law Enforcement ◽  
Criminal Law ◽  
Primary Concern ◽  
National Sovereignty ◽  
The Past ◽  
Alternative Perspective ◽  
Recent Developments ◽  
Criminal Matters ◽  
Judicial Protection

Over the past few decades the competences of the eu to enact legislation in criminal matters have significantly increased. Member States and criminal law experts have raised concerns: to what extent can national sovereignty and domestic interests regarding criminal justice be preserved? This paper argues that the perspective of national sovereignty should not be the primary concern in criminal justice affairs in the eu. It is proposed that eu legal measures in this area are primarily judged on whether they in their entirety contribute to a reasonable balance between effective law enforcement and adequate judicial protection of individuals. From this perspective, recent developments potentially contribute to redressing the balance in eu criminal law.

scholarly journals Research of Criminal Punishment in Russian Dissertation Theses: Key Trends in 2010-2019

2019 ◽  
Vol 13 (5) ◽  
pp. 825-836
Author(s):  
Alexei Kibalnik ◽  
Pavel Volosyuk ◽  
Rustam Abdulgaziev
Keyword(s):  
Criminal Law ◽  
Capital Punishment ◽  
Criminal Punishment ◽  
Functional Theory ◽  
The Past ◽  
Legal Nature ◽  
New Ideas ◽  
Positive Feature ◽  
Definition Of ◽  
Criminal Legislation

The article aims to reveal key trends in the studies of the problems of criminal punishment based on the analysis of Russian dissertation theses in the past decade (2010–2019). The authors stress that the problems of punishment are «eternal» for Russian and Western doctrines of criminal law, although there is some difference in their research trends. The authors conclude that Russian doctrine preserves continuity in its definition of punishment as a major category of criminal law, as well as of its attributes and goals. In 1990–2000s there were some attempts to renounce the penal nature of punishment. In the past decades this «bias» has been overcome and practically all authors recognize the priority of the penal character (content) of criminal punishment. At the same time, the doctrine incorporated new ideas regarding the understanding of the goals of punishment, their hierarchy and the actual possibilities of achieving them. The authors note that the positive feature of the Russian doctrine is the substantiation of the «functional» theory of building a system of punishments in criminal legislation. On the other hand, researchers have come to a disappointing conclusion regarding the breach in the orderly structure of the system of punishments. The analysis of Russian dissertation theses has shown that in 2010–2019 most attention was focused on «final» punishments (capital punishment and life imprisonment), imprisonment for a certain period of time, some punishments not connected with the deprivation of liberty (limitation of liberty, obligatory work). The authors point out that there remains a discrepancy in the understanding of the legal nature, purpose and effectiveness of these types of punishment (primarily, capital punishment, which is preserved in criminal legislation).

scholarly journals KEBIJAKAN HUKUM PIDANA PENYELESAIAN PERKARA TINDAK PIDANA MELALUI UPAYA DIVERSI BAGI PELAKU DEWASA DALAM MEWUJUDKAN KEADILAN RESTORATIF

2020 ◽  
Vol 3 (2) ◽  
Author(s):  
Bendry Almy
Keyword(s):  
Criminal Justice ◽  
Law Enforcement ◽  
Criminal Justice System ◽  
Restorative Justice ◽  
Criminal Law ◽  
Justice System ◽  
Library Research ◽  
Research Goal ◽  
The Law ◽  
Criminal Legislation

ABSTRAKPrinsip keadilan restoratif dalam peraturan perundang-undangan hukum pidana yang berlaku di Indonesia hanya diatur dalam Undang-Undang Sistem Peradilan Pidana Anak (SPPA) yang diaplikasikan dalam bentuk diversi, namun diversi tersebut hanya ditujukan bagi pelaku tindak pidana anak bukan untuk pelaku dewasa, peraturan perundang-perundangan pidana Indonesia belum mengatur prinsip keadilan restoratif bagi pelaku dewasa. Dalam praktik penegakan hukum, penerapan prinsip keadilan restoratif bagi pelaku dewasa sebagian telah dilaksanakan melalui diskresi, namun secara teoritis dan pratik pelaksanaan diskresi masih bermasalah karena belum memenuhi tiga nilai dasar hukum yaitu keadilan, kepastian dan kemanfaatan, dan diskresi juga bisa menimbulkan permasalahan ketidakadilan, karena adanya perbedaan perlakuan dalam proses penegakan hukum, sehingga asas “equality before the law” tidak dilaksanakan. Tujuan penelitian adalah untuk mengetahui bagaimana pelaksanaan prinsip keadilan restoratif dalam peraturan perundang-undangan pidana yang berlaku di Indonesia dan bagaimana penerapan diversi bagi pelaku dewasa dalam rangka mewujudkan keadilan restoratif. Jenis penelitian yaitu penelitian hukum normatif atau penelitian hukum kepustakaan, untuk mencari dan menemukan data yang dibutuhkan untuk menjawab permasalahan. Hasil penelitian diketahui bahwa peraturan perundang-undangan hukum pidana Indonesia belum mengatur tentang prinsip keadilan restoratif bagi pelaku dewasa, prinsip keadilan restoratif diterapkan baru sebatas untuk pelaku anak yang diaplikasikan dalam bentuk diversi. Secara teoritis, historis, normatif dan praktik prosedural, diversi juga dapat diterapkan untuk menyelesaikan perkara tindak pidana yang dilakukan oleh orang dewasa, namun perlu adanya perubahan dan penyesuaian terutama dalam hal tujuan pelaksanaan, kwalifikasi jenis tindak pidana dan mekanisme atau prosedur pelaksanaannya.Kata kunci: kebijakan hukum pidana; anak; dewasa; diversi; keadilan restoratif.AbstractThe principle of restorative justice in criminal law regulations in force in Indonesia is only regulated in the Law on the Criminal Justice System for Children (SPPA) which is applied in the form of diversion, however the diversion is only intended for child offenders not for adult offenders, Indonesian criminal laws and regulations do not regulate the principle of restorative justice for adult offenders. In law enforcement practices, the application of the principle of restorative justice for adult offenders has been partially implemented through discretion, but theoretically and practically the implementation of discretion is still problematic because it does not meet the three basic legal values, namely justice, certainty and benefit, and discretion can also cause problems of injustice, due to differences in treatment in the law enforcement process, so the principle of "equality before the law" is not implemented. The research goal is to find out how the implementation of the principles of restorative justice in criminal legislation in Indonesia, and how the application of diversion for adult offenders in order to realize restorative justice. This type of research is normative research or library research, to search and find the data needed to answer the problem. The results of the study note that Indonesian criminal law regulations do not regulate the principles of restorative justice for adult offenders, the principle of restorative justice is applied only to the child offenders which is applied in the form of diversion. Theoretically, historically, normatively and procedural practice, diversion can also be applied to resolve cases by adult offenders, but there needs to be changes and adjustments especially in terms of implementation objectives, qualification of the type of crime and the mechanism or procedure for its implementation.Keywords: criminal law policy; children; adults; diversion; restorative justice.

Guilty Minds

2017 ◽  
Author(s):  
Anne C. Dailey
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Rational Decision ◽  
Police Interrogation ◽  
Rational Person ◽  
Unfair Advantage ◽  
Rational Decision Making ◽  
Unconscious Guilt

This chapter examines the puzzling question of why an otherwise rational person would voluntarily confess to a crime, knowing full well that the state will punish in return. Even more puzzling is the phenomenon of false confessions, where an individual inexplicably confesses to a crime she did not commit, in some cases believing in her own guilt. Psychoanalysis gives us important insights into these irrational phenomena. The focus in this chapter is on the ways in which certain deceptive and degrading police interrogation tactics may override a suspect’s conscious rational decision-making powers by enlisting unconscious needs, aggressions, and guilt. Three interrogation tactics are of greatest concern: false sympathy, degradation, and trickery. As this chapter shows, false sympathy and degradation exploit deep-seated, unconscious desires for absolution and punishment that undermine the voluntariness of a suspect’s self-incriminating statements. Similarly, police trickery can take unfair advantage of a suspect’s need to rationalize unconscious guilt for a crime he did not commit. By drawing attention to the risks associated with these methods, psychoanalysis ensures that the most egregious practices can be eliminated from our criminal justice system. Psychoanalytic insights into unconscious processes advances the law’s own best ideals of fundamental fairness in the criminal law.

scholarly journals Confiscation of property as a criminal punishment

2021 ◽  
pp. 64-82
Author(s):  
М.Ф. Гареев
Keyword(s):  
National Security ◽  
Russian Federation ◽  
Criminal Law ◽  
The State ◽  
Criminal Punishment ◽  
Legal Nature ◽  
Legislative Regulation ◽  
The Russian Federation ◽  
Criminal Legislation

В статье рассматривается и обосновывается необходимость возобновления в уголовном праве института конфискации имущества в качестве уголовного наказания. Необходимость его возобновления обусловлена наличием ряда преступных деяний, представляющих угрозу обществу, государству, национальной безопасности Российской Федерации. В настоящее время законодательная регламентация конфискации имущества в качестве иной меры уголовноправового характера, вызванная неопределенностью его сущности, целевых установок и механизма назначения, не выполняет предупредительную задачу, установленную уголовным законодательством. The article discusses and substantiates the need to renew the institution of confiscation of property in criminal law as a criminal punishment. The need to resume it is due to the presence of a number of criminal acts that pose a threat to society, the state, and the national security of the Russian Federation. Currently, the legislative regulation of the confiscation of property as another measure of a criminal-legal nature, caused by the uncertainty of its essence, targets and the mechanism of appointment, does not fulfill the preventive task established by the criminal legislation.

scholarly journals The Potential of Criminal Law in Protecting Labor Rights of Citizens (Using the Example of Article 136 of the Criminal Code of the Russian Federation)

2018 ◽  
Vol 12 (6) ◽  
pp. 836-844
Author(s):  
Michail Sagandykov ◽  
Galia Shafikova
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Theoretical Research ◽  
Labor Rights ◽  
Labor Legislation ◽  
The Russian Federation ◽  
The One ◽  
Criminal Legislation

The relevance of the study is based, on the one hand, on high public danger of crimes in the sphere of labor relations and, on the other hand, on a very low interest of law enforcement, control and supervision bodies in these crimes. The authors show that modern criminal legislation in the sphere of protecting labor rights has a high potential in comparison with both Soviet and foreign criminal law norms. At the same time, this potential, primarily expressed in Chapter 19 of the Criminal Code of the Russian Federation, remains untapped. Many norms, including Art. 136 of the Criminal Code of the Russian Federation «Violating the Equality of Rights and Freedoms of Man and Citizen», are virtually never used against discrimination in the labor sphere, although such discrimination is quite common. No such cases have been found in court statistical data, thus it is impossible to provide a comprehensive criminological description of these crimes. The norm of Art. 136 of the Criminal Code of the Russian Federation is seldom used by law enforcers because it is legally ambiguous. In this connection the authors suggest complementing the disposition of Art. 136 of the Criminal Code of the Russian Federation with such factors of discrimination as «age» and «marital status». The latter factor will make it possible to provide extra protection to pregnant women and women with children under three years old against unmotivated refusal of employment and firing. The authors argue that such actions of the employer should constitute an aggregate of crimes and should be punished simultaneously under Art. 136 and 145 of the Criminal Code of the Russian Federation. At the same time, the authors think that it is not appropriate to make the disposition of Art. 136 a blanket one due to vague grounds for discrimination in special legislation, including labor legislation. The obtained results could be used for the improvement of Russian legislation based on theoretical research and the practice of law enforcement.

scholarly journals Individualization of punishment in accordance with criminal legislation of Spain: concept, rules of formalization (calculation), and doctrinal substantiation (comparative legal research)

2020 ◽  
pp. 46-61
Author(s):  
Elena Yurishina
Keyword(s):  
Criminal Law ◽  
Judicial Discretion ◽  
Legal Research ◽  
Russian Science ◽  
Original Definition ◽  
The Subject ◽  
Similarities And Differences ◽  
Definition Of ◽  
Criminal Legislation ◽  
Spanish Legislation

  This article examines the question of imposition of punishment (pena) and its individualization (individualización) in Spain from the perspective of criminal law theory. The subject of this research is a set of legislative norms, doctrinal interpretations and explanations, contained in interpretational acts of Spain dedicated to the assemblage of mathematical rules of calculation of the term of punishment by combination of certain characteristics of the case (formalization rules in the Russian analogue) and circumstances reluctant to quantitative evaluation (oriented towards the criteria of judicial discretion). The article also presents some theoretical insights into the question of making decision on the punishment and competition between formalization and judicial discretion. Research methodology is based on the formal-legal and comparative methods, which allowed the author to examine Spanish legislation and determined certain analogies with the Russian. The scientific novelty consists in the detailed and systematized description of the rules of formalization of punishment in Spanish legislation, enlarge the capabilities of Russian science with regards to analysis of similarities and differences in legislations of various countries. The author offers the original definition of the institution of assignment of punishment that includes criminal-procedural vector, as well as substantiates an opinion why stringent formalization does not always meet the demands of justice.  

scholarly journals Legality Letter of Statement of Khilaf in Indonesia Criminal Justice System

FIAT JUSTISIA ◽  
2018 ◽  
Vol 12 (2) ◽  
pp. 128
Author(s):  
Rugun Romaida Hutabarat
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Primary Source ◽  
Secondary Data ◽  
Criminal Offense ◽  
Criminal Procedure Law ◽  
The Law ◽  
Criminal Matters

In criminal law, a person charged with a criminal offense may be punished if it meets two matters, namely his act is unlawful, and the perpetrator of a crime may be liable for the indicated action (the offender's error) or the act may be dismissed to the perpetrator, and there is no excuse. The reasons may result in the death or the removal of the implied penalty. But it becomes a matter of how if the Letter of Statement Khilaf is the answer to solve the legal problems. The person who refuses or does not do what has been stated in the letters is often called "wanprestasi" because the statement is categorized as an agreement. The statement includes an agreement which is the domain of civil law or criminal law, so its application in the judicial system can be determined. This should be reviewed in the application of the law, are there any rules governing wrong statements in the criminal justice system. By using a declaration of khilaf as a way out of criminal matters, then the statement should be known in juridical rules. This study uses normative juridical methods, by conceptualizing the law as a norm rule which is a benchmark of human behavior, with emphasis on secondary data sources collected from the primary source of the legislation. The result of this research is that the statement of khilaf has legality, it is based on Jurisprudence No. 3901 K / Pdt / 1985 jo Article 189 Paragraph (1) of Indonesian criminal procedure law. However, this oversight letter needs to be verified in front of the court to be valid evidence, but this letter of error is not a deletion of a criminal offense, because the culpability of the defendant has justified the crime he committed. Such recognition, cannot make it free from the crime that has been committed.Keywords: Legality, Letter of Statement, Criminal Justice System

scholarly journals CORPORATE CRIMINAL LIABILITY IN INDONESIA ON THE PERSPECTIVE OF COMPARISON

2017 ◽  
Vol 2 (2) ◽  
pp. 144-154
Author(s):  
Muchammad Chasani
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Justice System ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Offense ◽  
Criminal Legislation ◽  
Corporate Criminal Liability ◽  
Responsibility System

The regulation of corporate criminal liability in Indonesia's criminal justice system is basically a new and still debatable issue. It is said that because in the Criminal Code is not recognized and regulated explicitly about the corporation as a subject of criminal law. This is a natural thing since the WvS Criminal Code still adheres to the principle of "societas delinquere non potest" or "non-potest university delinquere", that is, a legal entity can not commit a crime. Thus, if in a society there is a criminal offense, then the criminal act is deemed to be done by the board of the corporation concerned. Regarding the corporate criminal responsibility system in Indonesia, in the corruption law Article 20 paragraph (1), if the corporation committed a criminal act of corruption, then those responsible for the criminal act shall be the corporation only, the management only, or the corporation and its management. Thus, it can be said that the regulation of corporate criminal liability in the legal system in Indonesia is expressly only regulated in special criminal legislation, because the Criminal Code of WvS still adheres to the principle of "societas delinquere nonpotest" so it is not possible to enforce corporate criminal liability in it.

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