Problematic issues of qualifying criminal omissions

Law and World ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 84-96
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Common Law ◽  
Criminal Activity ◽  
Criminal Code ◽  
Theoretical Research ◽  
Main Element ◽  
Detailed Review ◽  
Law System ◽  
Common Law System

Criminal code of Georgia (7th article) defines crime. According to this article main element of a crime is an action. Action is also the first and the most important element of actus reus in Georgian criminal law. In this case, action includes not only criminal activity, but also criminal inaction. According to Georgian criminal law, there are two forms of inaction: typical inaction and mixed inaction. Mixed inaction is much more serious crime than typical inaction. While qualifying inaction the most important issue is the obligation on action, whether it was because of profession, previous action or special relations with the victim. The research includes detailed review of Georgian criminal law in the field of qualification of criminal inaction. Georgia belongs to continental law system. There is big difference in this field between continental law system and common law system. In continental criminal law system, every type of inaction is a crime, while in common law system, typical inactions, like leaving person without help in danger, is not a crime. Main aim of criminal law is to avoid harm of such values like life, freedom etc. That’s why it is important to prevent such harms. The research includes analyzing of this differences. The most important issue while qualifi cation of inaction is practice of Georgian Supreme Court. So, the re- search includes detailed review of Georgian Supreme Court decisions in this fi eld. To sum up, the research includes following issues: Theoretical research on qualifi cation of inaction, practical recommendations, review of Georgian Supreme Court practice, specifi cs of common law countries.

British Virgin Islands

2020 ◽  
Author(s):  
Arabella di Iorio
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Common Law ◽  
Virgin Islands ◽  
British Virgin Islands ◽  
Law System ◽  
The Common ◽  
Eastern Caribbean ◽  
Common Law System ◽  
Trust Law

The legal system of the British Virgin Islands is a common law system based on the English model, comprising statute law and binding case precedents. The principles of English common law and equity apply in the BVI (subject to modification by BVI statutes) pursuant to the Common Law (Declaration of Application) Act (Cap 13) and the Eastern Caribbean Supreme Court (Virgin Islands) Act (Cap 80) respectively. The general principles of trust law are based on English law.

scholarly journals Complicity in the common law system: General characteristics

2021 ◽  
Vol 63 (2) ◽  
pp. 171-192
Author(s):  
Dragan Paunović
Keyword(s):  
Great Britain ◽  
Criminal Law ◽  
Common Law ◽  
Model Penal Code ◽  
Common Denominator ◽  
Criminal Enterprise ◽  
Law System ◽  
Joint Criminal Enterprise ◽  
The Common ◽  
Common Law System

Complicity in the common law system has been subject of different practices in different countries for many years. It is unlike the practice in the majority of continental criminal justice systems. However, the court practice and principles established over time in certain countries have had greater effects than in some other countries using the same system. English common law practice is an example. It is the common law system with the strongest influence. Its practice regarding complicity was established a long time ago in 1861 Accessories and Abbettors Act that was the main law regulating this issue for over a hundred years. Besides very well-established actus rea elements, the main mens rea condition for complicity was a perpetrator's purpose or knowledge of the main criminal act. During 1985, the complicity concept was changed with the final judgment in the case "R v Jogee (Appellant) and Ruddock (Appellant) v The Queen (Respondent) (Jamaica)." The point of this reform was the "joint criminal enterprise" concept that was based on the "foreseeability standard" that made an accomplice responsible even for crime acts that were outside the "common plan or the purpose". After 30 years of implementation, the case of Privy Council Chang Wing-Siu v The Queen reset the complicity doctrine again and got it back to its traditional principles claiming "foreseeability standard" unconstitutional. Due to the importance of the common law system in Great Britain for other countries applying the same system, some of them, including Australia and Jordan, accepted the same complicity principles as Great Britain. Both of the mentioned systems adopted the "joint criminal enterprise" concept, but they developed it within their national criminal laws demanding extra responsibility claims for the accomplice. Unlike them, the US common law is characterized by other elements. Among them, the main ones are its inconsistency in terms of different practices at the state and at the federal level, as well as the lack of codification relating to many criminal law principles, including the complicity doctrine itself. These issues and problems have been a subject of interest of many scholars and practitioners in the common law system. The common denominator of their remarks regarding the problem is the need for a comprehensive reform of the current criminal law regulations and practices. Model Penal Code was a partially successful attempt of such needs but with limited effects. Taking in consideration all problems that exist regarding the complicity doctrine in the common law system, it seems further reforms and codifications of the complicity doctrine are the best way out of the current confusion where this doctrine seems to be stuck.

scholarly journals A Common Law Perspective on the Supreme Court and its Functions

2019 ◽  
Vol 81 ◽  
pp. 15-43
Author(s):  
Richard Marcus
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Civil Law ◽  
Specific System ◽  
Law System ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
Common Law System ◽  
And Function

The text presents different attributes of the Supreme Court in common law and civil law systems. The author claims that the question of design and function of a supreme court, while important, is no more significant than the issue of its institutional status and evolution, i.e. something one could refer to as “legal culture”. Neither the “common law camp”, nor the “civil law camp” turns out to be monolithic in this regard. The distinctive history of the US Supreme Court is presented through the perspective of its statutory and procedural supremacy, as well as its power of constitutional adjudication. The author indicates that the supremacy of the US Supreme Court depends on many factors. Arguably, the most important attribute of the US Supreme Court’s supremacy is linked with the latitude offered to judges in common law system to “make law”, which stands in contrast to a limited judicial function in many civil law countries. The author argues that being a court in a common law system carries with it much broader authority. A supreme court in such a system is, as a result, much more supreme. The author concludes his comparative remarks by saying that it is not possible to proclaim the superiority of one specific system because there are too many variables that come into play with regard to respective nations.

Historical Experience of Criminalization: to the Centenary of the Guiding Principles on Criminal Law of the RSFSR

2019 ◽  
pp. 31-35
Author(s):  
Ivan Kozachenko
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Historical Experience ◽  
Law System ◽  
Political Situation ◽  
Historical Method ◽  
Advantages And Disadvantages ◽  
Concept Planning ◽  
Guiding Principles ◽  
Definition Of

The creation of the Guiding Principles on the Criminal Law of the RSFSR of 1919 is studied taking into account extremely complicated internal and external political situation in the country at the beginning of the twentieth century. Using the methods of analysis, synthesis, as well as comparative and historical method, the author determines the significance of the Guiding Principles in the law system of the young Soviet state. Some key norms of the document are examined. In particular, the definition of criminal law is analyzed and its advantages and disadvantages are identified. It is noted that the definition of a crime was formulated too broadly, and more significant steps in criminalization of different acts were made with the adoption of the RSFSR Criminal Code of 1922. It is indicated which persons were not punished according to the Guidelines. Attention is drawn to the way in which such a method of protection as necessary defense was set forth in this act. The Guiding Principles are not without certain disadvantages: for example, the institution of complicity is not sufficiently disclosed, there is lexical redundancy in the definition of the concept «planning the offence». However, the discrepancies between the main provisions covered in the Guidelines are explainable and excusable, taking into account the historical situation at the time of their adoption. The analyzed document became the basis for Russian criminal law, and some of its provisions are still relevant.

MAIN SPECIFICATIONS OF ASSESSING ACTIVITIES OF MINOR IMPORTANCE OF IN MODERN CRIMINAL LAW

Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 83-95
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Case Law ◽  
Criminal Code ◽  
The Other ◽  
European Countries ◽  
Minor Importance ◽  
Detailed Review

The research includes the full and the detailed overview of assessing activities of minor importance in Georgian Criminal Law. The Article 7 of the Criminal Code of Georgia states the following: a crime shall not be an action that, although formally containing the signs of a crime, has not produced, for minor importance, the prejudice that would require criminal liability of its perpetrator, or has not created the risk of such harm. The research includes the main criteria of defining activities as activities of minor importance. The detailed review of Georgian case law is also introduced, as well as, legislation, judicial literature and experience of the other European countries.

Common Law Constitutionalism

2018 ◽  
Author(s):  
William E. Nelson
Keyword(s):  
Eighteenth Century ◽  
Seventeenth Century ◽  
Common Law ◽  
Legal Profession ◽  
Legal Institutions ◽  
Law System ◽  
The Common ◽  
Common Law System

This chapter shows how common law pleading, the use of common law vocabulary, and substantive common law rules lay at the foundation of every colony’s law by the middle of the eighteenth century. There is some explanation of how this common law system functioned in practice. The chapter then discusses why colonials looked upon the common law as a repository of liberty. It also discusses in detail the development of the legal profession individually in each of the thirteen colonies. Finally, the chapter ends with a discussion of the role of legislation. It shows that, although legislation had played an important role in the development of law and legal institutions in the seventeenth century, eighteenth-century Americans were suspicious of legislation, with the result that the output of pre-Revolutionary legislatures was minimal.

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