Criminal law

Question 1

criminal law

Answer 1

branch of public law.influences and regulates behavior in a way we see fit in our society. This is done by limiting and protecting freedoms at the same time

Question 2

crimes as public wrongs

Answer 2

crimes are socially proscribed wrongs that concern the community as a whole.

Question 3

which functions criminal law has in democratic society?

Answer 3

both a crime control function (sword) and a safeguard function (shield) in our democratic society

Question 4

differences with other branches of law

Answer 4

The most important difference with other branches of law is that criminal law individuals get severe punishment and fines more than in other branches of law

Question 5

criminal case

Answer 5

criminal case is between the state (0r whole community) and the defendant.

Question 6

the minimalist principle

Answer 6

criminal law should criminalize severe action because criminal law is the most powerful tool at government due to it they should use it as a last option

Question 7

the principle of individual autonomy

Answer 7

every human kind should think of outcomes of action and citizens should be free in making their own choices.Example, many drug offenses (including violations of alcohol and tobacco laws) are often based on paternalistic considerations.

Question 8

the principle of welfare

Answer 8

(wrongful act that is against of public order,environment and society accepts as a crime)Also collective goals and interests, such as environmental protection, economic and financial stability, and food and product safety, are also warrant protection under criminal law.

Question 9

the harm principle

Answer 9

A conduct that may be immoral (such as adultery) but that is not harmful to others should not be the concern of criminal law. But if we define harm as “harm to society”, almost any conduct could be fitted under this definition.

Question 10

legal moralism

Answer 10

Generally most immoral acts are accepted also as a crime 1) which morals are to guide the criminalization debate – liberal morals, communist morals, or the religious morals; 2) moral values are subject to constant changes and are therefore problematic to guide the legal debate. Example, abortion, prostitution, euthanasia.

Question 11

utilitarian theories

Answer 11

laws should be used to maximize the happiness of society. This means that punishment can only be justified if the harm that it prevents outweighs the harm it creates through punishing the offender

Question 12

retributive theories

Answer 12

offenders are punished for their crimes because they deserve punishment.( the main aim of punishment to get revenge from society )

Question 13

actus reus( objective elements of crime)

Answer 13

act requirement”. All penal systems generally agree that the imposition of criminal liability requires at the very least some form of conduct controlled by the perpetrator

Question 14

mens rea( subjective element of crime)

Answer 14

Intention (0r dolus): knowing and wanting

Negligence (culpa) conscious and unconscious

Question 15

intention

Answer 15

Direct intent (dolus directus ) – The consequence of an intention is actually desired.
Indirect intent (dolus indirectus) – the agent knows his conduct will almost certainly bring about the result, which he does not actually desire or primarily aim at.

Question 16

negligence

Answer 16

based on a violation of the required duty of care that causes a result prohibited by criminal law. Carelessness, lack of due care, lack of reasonable care expresses the term of negligence.

Question 17

conscious and unconscious negligence

Answer 17

Conscious negligence (the defendant is aware of a risk but assumes that the result will not occur) (in English law they call it recklessness or in some other countries conditional intent (dolus eventualis)) and unconscious negligence (the defendant is not conscious of a risk, but he should and could have been aware of it)

Question 18

justification and excuses

Answer 18

A justification negates the wrongfulness of the act (example, self-defense), whereas an excuse negates the blameworthiness of the agent (example, insanity)

Question 19

imminent and unlawful attack

Answer 19

defendant cannot wait any longer for the official authorities to protect his interest. So it means, self-defense may only be performed at its earliest when danger is already close. On the other hand, it may be performed only as long as the attack continues; otherwise, it would be retaliation.

Question 20

unlawful attack means

Answer 20

that self-defense is really a fight of right against wrong

Question 21

legal interest means

Answer 21

. Legal interests (a person’s life, body, and property)

Question 22

necessity

Answer 22

If there is a possibility to retreat (escape, run away) or to get help, one should use it.

Question 23

proportionality

Answer 23

The least intrusive means that are still effective should be chosen, taking into account all the circumstances.( if smb still phone it isn’t proportional to kill this person)

Question 24

insanity

Answer 24

the most popular exuce. Those who are not responsible for their actions are not punishable. In all legal systems, the insane defendant will therefore be compulsorily admitted to and/or treated in a mental hospital. As long as the danger remains and treatment is necessary, the defendant can be detained in a mental hospital

Question 25

requirements of insanity

Answer 25

1) It should be established that the defendant was suffering from a relevant mental disorder at the time when he committed the offense. 2) It is required that the mental disorder has substantially impaired the defendant’s capacities to be held responsible. 3) There should not be the issue like prior fault of getting in a situation where the defendant lost his mind (deliberately)

Question 26

why state is directly involved in the criminal process

Answer 26

a crime always offends and threatens the society as a whole, that’s why the security of society should not be left in the hands of single untrained individuals; modern criminal codes include crimes that offend the state at large and not just one of its individuals. This includes crimes against public order, crimes against the economy, and crimes against the environment. The last reason is that private victims often did not have the resources to take up the task of investigating and prosecuting their offenders.

Question 27

what kind of authorities are the state given in order to discover crimes?

Answer 27

,a significant amount of coercive and intrusive powers (like home searches, interceptions of communications, surveillance measures, arrests etc.).

Question 28

the general common skeleton of the criminal process

Answer 28

displays two main stages: the investigation (or pretrial) phase and the trial phase.

Question 29

investigation

Answer 29

aim at discovering crimes. Once the suspicion of a crime comes to the attention of the law enforcement authorities, they conduct investigations in order to find out if an offense has been committed and unveil all relevant circumstances (the author, the actus reus, the mens rea, mitigating and aggravating factors). The police has the primary role in the investigations, generally under the direction and supervision of the public prosecutor. If the state authorities deem the original suspicion to be unfounded, the case is dismissed. But if they come to the reasoned belief that a crime has been perpetrated, a formal allegation is drafted (indictment) and the case is taken to trial, where the allegation will be tested by judge(s).

Question 30

At trial, an impartial court (a single judge, a panel, or a jury)

Answer 30

decides whether the defendant is guilty of the alleged crime(s). If the charge described in the indictment is deemed to be true, the defendant is found guilty and is then sentenced; if it is found to be false, the defendant is acquitted.

Question 31

public trial

Answer 31

it is a form of social control on the criminal process,it lead self-restrained on the parties and judge and allows society to estimate correctness of the final decision

Question 32

Balance between parties.investigation and trial

Answer 32

if during the investigations the suspect has little or no opportunity to oppose the indictment ,at trial he/she has a possibility to reject the allegations by producing evidence and arguments in her favor.

Question 33

The presumption of innocence

Answer 33

is the cornerstone of the criminal process. An individual is considered innocent and must be treated as such until a decision of guilt is passed against him.tries to cure/remedy this imbalance between the parties in the early stage of the criminal process

Question 34

the principle of presumption of innocence

Answer 34

According to this principle; the defendant can be considered guilty only if his guilt has been proved beyond reasonable doubt/undoubtedly (in dubio pro reo). As a consequence, the prosecution bears the burden to prove all of the elements of the alleged offense. This is different from civil proceedings.

Question 35

Pretrial detention as an exception

Answer 35

The personal liberty of a suspect cannot be unduly restricted before a verdict of guilt is passed. Pretrial detention is possible in some circumstances. If the police catches someone red-handed, or if the police reasonably assumes that the suspect might flee/run away or commit dangerous acts they arrest him.

Question 36

Fair trial (or due process)

Answer 36

The common core of the principle includes the right of the accused to a public trial in front of an independent and impartial judge and the right to defense.

Question 37

What kind of opportunity should be given to the accused to properly oppose the allegations against him.

Answer 37

Lawyer’s assistance
Right to silence – the accused has a right to remain silent.
Cross-examination – the possibility to discredit the evidence offered by the prosecution.
Fair investigations – the rights to legal assistance and to remain silent apply not only to defendants at trial but also to suspects during the investigative phase

Question 38

Proportionality

Answer 38

The main principle concerning the investigation stage is the principle of “proportionality”, which entails that state authorities should not make arbitrary use of their coercive and intrusive powers. Investigative measures cannot be used lightly or for purposes other than unveiling the elements of a particular offense. Coercive or intrusive action should be allowed only when and insofar as it is strictly necessary to investigate a specific offense.