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Contract Law > Criminal Law > Flashcards

Criminal Law Flashcards

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1
Q

What is the main function of criminal law?

A

To prohibit and punish certain behaviours that harm or threaten public safety and welfare

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2
Q

Ultima ratio

A

The principle that punishment should be the last resort, since it limits individuals’ freedom

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3
Q

SWORD AND SHIELD function

A

Criminal law limits and controls governmental power but also human’s freedom

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4
Q

Principle of Individual Autonomy

A

Holds that citizens should be free from undue State powers
–> Making their own decisions and control their own fate

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5
Q

Principle of Welfare

A

Gives weight to certain collective goals and interests that warrant protection by CL

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6
Q

The Harm Principle

A

The idea that limiting citizen’s freedom through governmental power should only be justified when the consequences of not doing so would mean harm to others

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7
Q

Legal moralism -> Counter part to harm principle

A

What do we consider harmful?
Reliance on morality is subjective

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8
Q

Utilitarian theory on legal punishment. Main thesis

A

Punishment can only be justified if the harm that it prevents outweighs the harm it creates through the offender

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9
Q

Major rationales (3)

A
  1. Individual Deterrence: Avoid repetitiveness of crimes
  2. General Deterrence: Avoid general population committing crimes
  3. Rehabilitation: Necessary treatment to turn them into active members of society
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10
Q

Retributive Theories. Main thesis

A

Punishment is justifiable just on the basis of the punishment being called for. Offenders deserve punishment.

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11
Q

The Actus Reus - Mens rea Dichotomy

A

The idea that all crimes can be split into these two concepts. The objective and the subjective element of a crime

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12
Q

Bipartitite Structure of a crime. Definition and complications

A

Assessing liability only needs mens rea and actus reus. Fails to account for justifications and excuses.

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13
Q

Tripartitite structure of a crime. Stages and complications

A

Assessing liability in 3 stages:
1. Mens rea and actus reus
2. Wrongdoing
3. Blameworthiness

–> IN ORDER

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14
Q

ACTUS REUS. What two types of actus reus can be mentioned?

A
  1. Offense by commission
  2. Offense by omission
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15
Q

Offense by commission. How is action analyzed/ seen? Does it have complications

A

Action as superficial toward manifestation = movement of the limbs

Fails to account for offenses not committed by humans (orgs., corporations…)

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16
Q

Offense by ommission. The Absence of action. What entales?

A

Violation of a DUTY OF CARE

17
Q

MENS REA. What 3 aspects can we distinct in the analysis?

A
  1. Intention
  2. Negligence
  3. Recklesness (english law)
18
Q

INTENTION. What are the 2 elements?

A

Cognitive part: What is thought
Volitive part: What is wanted

19
Q

Into what 3 types of intention can be adhere to each element?

A
  1. Direct intent (volitive)
  2. Indirect intent (cognitive)
  3. Conditional intent
20
Q

Direct intent. How big is the degree of volition? Definition.

A

Strong level of volition, where the CONSEQUENCE of an intention is acually desired

21
Q

Indirect intent. How big is the degree of cognition? Definition

A

Strong level of cognition. The perpetrator knows his conduct will ALMOST CERTAINLY bring about the result, which he does not actually desire or AIM at.

22
Q

Conditional intent. Defintion and levels of volition and cognition

A

An actor does not want to kill a person but merely injure them
–> CONSCIOUS ACCEPTANCE OF A RISK
- Cognition: Is aware of risk
- Volition: Accepting possibility that risk will materialize

23
Q

NEGLIGENCE. Definiton

A

Based on the violation of a duty of care.

24
Q

Two types of negligence

A
  1. Conscious negligence
  2. Unconcious negligence
25
Q

Conscious negligence

A

Agent is conscious of a risk, but assumes IT WILL NOT OCCUR

26
Q

Unconscious negligence

A

Agent is not conscious of the risk, he wrongfully does not consider the risks of his actions or the absence of his actions

27
Q

What two aspects can possibily take away the criminal liability of a person?

A

Justifications and excuses

28
Q

Give an example for each.

A

Justification -> Self-defense
Excuse -> Insanity

29
Q

Justification: Self-defense. What are the requirements to claim that (3)?

A
  1. Imminence: Can’t wait until the authorities come
  2. Proportionality: Self-defense must be in proportion to danger that might be suffered
  3. Capable and sufficient defense: Must be enough to repel the attack

–> IF HELP IS AN OPTION ONE SHOULD USE IT

30
Q

Excuse: Insanity. What are the requirements?

A

Guarantees that those who are not responsible for actions are not punishable.

  1. Offense attributed to mental disorder: Impaired the defendant’s capacities to be held responsible
  2. Mentally disordered at the time of the act

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