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Theoretical Underpinnings of the Doctrine of Transferred Malice

100%
Sitnik P.
Studia Iuridica
|
2016
|
vol. 67
115-129
EN
Mistaken identity and bad aim have been traditionally accepted as the two textbook situations where the doctrine of transferred malice has found application. By reference to a cross-section of academic sources as well as case law from a number of common law jurisdictions, three core elements of transferred malice are identified: the intent of the defendant, the consequence that befalls the unintended victim, and public intuitions with regard to resulting harm. The overarching conclusion of the considerations consists in reaffirming the role of factual contingencies in deciding cases as well as the existence of a significant policy element which has caused, the paper submits, judges to subsume under the umbrella term of transferred malice cases which could satisfactorily be explained by means of other legal concepts, most notably remoteness, foreseeability or negligence.
2

Theoretical Underpinnings of the Doctrine of Transferred Malice

100%
Sitnik P.
Studia Iuridica
|
2016
|
vol. 67
115-129
EN
Mistaken identity and bad aim have been traditionally accepted as the two textbook situations where the doctrine of transferred malice has found application. By reference to a cross-section of academic sources as well as case law from a number of common law jurisdictions, three core elements of transferred malice are identified: the intent of the defendant, the consequence that befalls the unintended victim, and public intuitions with regard to resulting harm. The overarching conclusion of the considerations consists in reaffirming the role of factual contingencies in deciding cases as well as the existence of a significant policy element which has caused, the paper submits, judges to subsume under the umbrella term of transferred malice cases which could satisfactorily be explained by means of other legal concepts, most notably remoteness, foreseeability or negligence.
3
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The Impact of Intercultural Legal Discourse upon Anglo-American versus Navajo Criminal Legal Theory

86%
Brewer J.
Language, Discourse & Society
|
2022
|
vol. 10
|
issue 2
11-22
EN
Despite the desire for clarity, legal discourse is often unclear, leading to controversial interpretation. Moreover, the cultural dimension of legal discourse is rarely addressed, despite its importance in the interpretation of laws. This study examines the impact of legal culture on how legal principles are perceived and executed. Disparities emerge from long-standing cultural norms that influence the meaning of fundamental legal terminology. These legal phrases and concepts defy straightforward English understanding. Examples include the Latin word mens rea, which underpins both criminal and penal theory in Anglo-American law. Another example is the Navajo term hózhó from which all conceptualizations of social order emanate. Through an examination of conflict of laws as to U.S. federal courts and tribal law, this study aims to highlight the impact that legal culture has on the way legal concepts are understood and implemented. This case reveals an overlooked intimate relationship between law and culture.
4
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Artykuł 28 § 1 k.k. po nowelizacji z dnia 20 lutego 2015 r. Uwagi na temat konieczności oddzielania strony podmiotowej czynu zabronionego od winy

86%
Jędrzejewski Z.
Studia Iuridica
|
2016
|
vol. 65
25-40
PL
The object of analysis is the amended art. 28 § 1 of the Penal Code, which stipulates that „whoever commits an act while being in justifiable error as to a circumstance constituting a feature of an prohibited act, shall not commit a crime”. The new regulation of 28 § 1 of the Penal Code is the next attempt to statutorily define the concept of an offence based on the methodology of a strict separation of the object of evaluation from the evaluation itself, that is, primarily a radical separation of mens rea of a prohibited act from guilt. Therefore, the authors of the change have consistently attempted to eliminate all normative attributes from the scope of „recklessness” and „negligence”. This is a result of the view that assumes a pure descriptive character of the set of criminal offence features (Ger. „Tatbestand”) including subjective features (offences of intentional and unintentional character). In this context, acts committed while being in justifiable error as to a circumstance constituting a feature of a prohibited act exclude guilt, however the fulfilment of the features of criminal acts of unintentional character is limited to the fulfilment of objective features (a consequence of the concept of the unintentional character of an offence as a plain negation of intent). The negative wording of art. 1 § 3 of the Penal Code, the objective and general interpretation of the term found in art. 9 § 2 „could have foreseen” (a transfer of the so-called objective foreseeability to the category of objective attribution) and the concept of committing an act while being in justifiable error as to a circumstance constituting a feature of a prohibited act excluding guilt lead, in the area of unintentional character of an offence, to the presumption of guilt on the basis of the fulfilling only the objective features of a criminal act. The author of the article demonstrates the inaccuracy of this argument for a strictly descriptive character of the features of a prohibited act, and in particular the features of intent (intentional character of an offence). The object of intent (a feature of a criminal offence) has a evaluative character (evaluation), therefore determining intent can generally constitute a premise for accepting guilt (intended), unless the circumstance of excluding guilt exceptionally occurs. In the case of an unintentional character of an act, such a relation does not occur, and the guarantee functions (the rule of positive establishment of the perpetrator’s guilt) thus require subjective (specific and individual evaluation) interpretation of the premise „could have foreseen” found in art. 9 § 2 of the Penal Code.
5
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Odpowiedzialność karna za przestępne współdziałanie w prawie angielskim po wyroku R v. Jogee; Ruddock v. The Queen

72%
Brzostek P.
Studia Iuridica
|
2018
|
vol. 76
98-121
PL
The combined decisions of the UK Supreme Court and Judicial Committee of the Privy Council in R v. Jogee; Ruddock v. The Queen caused upheaval in the English law on criminal complicity. The Supreme Court/Privy Council decided that the law on criminal complicity „took a wrong turn” 33 years ago in the Privy Council ruling in Chan Wing-Siu which concerned a controversial doctrine of parasitic joint enterprise liability. According to the said doctrine, if A and B set out to commit a crime X (e.g. robbery) and B foresees that A might commit crime Y (e.g. murder) in the course of committing crime X, B will be liable for crime Y, even if he does not intend that crime Y be committed. The mere fact of foresight on B’s part is enough for him to be criminally liable. Decision in Jogee; Ruddock is of seminal importance as it overturned the doctrine of parasitic joint enterprise liability. It is doubtful, however, to what extent the Supreme Court has resolved the problems that have bedeviled this area of law. This article presents in outline the English law on criminal complicity and attempts to assess the changes that were introduced in Jogee; Ruddock. A number of issues still call for further refinement and resolution. It appears, however, that the emphasis the Supreme Court put on intention as a required standard of fault, draws, at least superficially, the continental (Polish and German) and English criminal law closer together in terms of mens rea requirements for secondary liability.
6
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WYSTĘPEK FINANSOWANIA TERRORYZMU (ART. 165A K.K.) W KONTEKŚCIE PROBLEMÓW ZWIĄZANYCH ZE STRONĄ PODMIOTOWĄ TEGO PRZESTĘPSTWA

58%
Golonka A.
Zeszyty Prawnicze
|
2019
|
vol. 19
|
issue 3
91-114
EN
The subject of this study are issues related to the crime of financing of terrorism specified in Article 165a of the Polish Criminal Code. This provision has been amended twice in the last two years. Te second amendment, under the Act of 23 March 2017, provided for a far-reaching modification of the types of prohibited acts regulated in Article 165a of the Polish Criminal Code, including the penalisation of unintentional financing of terrorism. The new wording adopted by this provision was dictated by changes in European Union regulations, as well as in the Recommendations of the Moneyval Committee underlying the justification for an otherwise not very well-grounded amendment. Moreover, this amendment has introduced several changes that raise serious reservations, especially from the perspective of ratio legis, as well as compliance with the principle of specificity. The defective form of this provision also raises doubts regarding the possibility of its practical application and consequently the effectiveness of combating terrorist financing. This applies above all to the aspects related to the subjective side of the types of prohibited acts described in Article 165a of the Polish Criminal Code. This issue is discussed at length in the present article.
PL
Przedmiotem opracowania są zagadnienia związane z przestępstwem finansowania terroryzmu określonym w art. 165a k.k. Przepis ten w ciągu ostatnich dwóch lat był już dwukrotnie nowelizowany. Druga z nich, przeprowadzona ustawą z dnia 23marca 2017 r., przewidziała daleko idącą modyfikację typów czynów zabronionych uregulowanych w art. 165a k.k., w tym ustanawiając karalność nieumyślnego finansowania terroryzmu. Nowe brzmienie, jakie przybrał ten przepis zostało podyktowane zmianami w regulacjach wspólnotowych, a także wskazaniami Komitetu Moneyval, które legły u podstaw uzasadnienia niekoniecznie zasadnej nowelizacji. Co więcej, za jej sprawą w przepisie tym znalazł się niejeden zapis, który budzi poważne zastrzeżenia, zwłaszcza z perspektywy ratio legis zmian, tudzież zgodności z zasada określoności. Niedoskonały kształt tego przepisu budzi jednocześnie wątpliwości związane z możliwością jego praktycznego stosowania, a w konsekwencji również samą efektywnością zwalczania finansowania terroryzmu. Odnosi się to przede wszystkim do aspektów dotyczących strony podmiotowej typów czynów zabronionych opisanych w art. 165a k.k. Problematyka ta znajduje rozwinięcie w przedmiotowym artykule naukowym.
7

Artykuł 28 § 1 k.k. po nowelizacji z dnia 20 lutego 2015 r. Uwagi na temat konieczności oddzielania strony podmiotowej czynu zabronionego od winy

58%
Jędrzejewski Z.
Studia Iuridica
|
2016
|
vol. 65
25-40
EN
The object of analysis is the amended art. 28 § 1 of the Penal Code, which stipulates that „whoever commits an act while being in justifiable error as to a circumstance constituting a feature of an prohibited act, shall not commit a crime”. The new regulation of 28 § 1 of the Penal Code is the next attempt to statutorily define the concept of an offence based on the methodology of a strict separation of the object of evaluation from the evaluation itself, that is, primarily a radical separation of mens rea of a prohibited act from guilt. Therefore, the authors of the change have consistently attempted to eliminate all normative attributes from the scope of „recklessness” and „negligence”. This is a result of the view that assumes a pure descriptive character of the set of criminal offence features (Ger. „Tatbestand”) including subjective features (offences of intentional and unintentional character). In this context, acts committed while being in justifiable error as to a circumstance constituting a feature of a prohibited act exclude guilt, however the fulfilment of the features of criminal acts of unintentional character is limited to the fulfilment of objective features (a consequence of the concept of the unintentional character of an offence as a plain negation of intent). The negative wording of art. 1 § 3 of the Penal Code, the objective and general interpretation of the term found in art. 9 § 2 „could have foreseen” (a transfer of the so-called objective foreseeability to the category of objective attribution) and the concept of committing an act while being in justifiable error as to a circumstance constituting a feature of a prohibited act excluding guilt lead, in the area of unintentional character of an offence, to the presumption of guilt on the basis of the fulfilling only the objective features of a criminal act. The author of the article demonstrates the inaccuracy of this argument for a strictly descriptive character of the features of a prohibited act, and in particular the features of intent (intentional character of an offence). The object of intent (a feature of a criminal offence) has a evaluative character (evaluation), therefore determining intent can generally constitute a premise for accepting guilt (intended), unless the circumstance of excluding guilt exceptionally occurs. In the case of an unintentional character of an act, such a relation does not occur, and the guarantee functions (the rule of positive establishment of the perpetrator’s guilt) thus require subjective (specific and individual evaluation) interpretation of the premise „could have foreseen” found in art. 9 § 2 of the Penal Code.
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