Ochrona czci człowieka a satyra i karykatura jako element wolności sztuki – rozważania na gruncie polskiego i niemieckiego prawa karnego

Cześć człowieka jako dobro szczególnie często naruszane bez wątpienia zasługuje na ochronę w świetle prawa karnego. Z drugiej strony, każdemu człowiekowi przysługuje wolność swobody wypowiedzi, w tym artystycznej, która może się przejawić w formie satyry i karykatury. Rodzi się zatem pytanie, gdzie należałoby postawić granicę, ażeby wolność ta mogła być realizowana bez uszczerbku dla czci człowieka. W niemieckim kodeksie karnym tę kwestię reguluje § 193 StGB, który stanowi o ,,zachowaniu uprawnionych interesów”. Przepis ten jest swoistym rodzajem kontratypu, który pozwala przy spełnieniu szeregu warunków, na nieponiesienie odpowiedzialności karnej przez osobę która wygłasza wypowiedzi, mogące naruszyć cześć człowieka. Do warunków tych doktryna niemiecka zalicza także działanie w ramach wolności artystycznej.

Formy konsensualizmu procesowego w świetle ostatnich nowelizacji Kodeksu postępowania karnego

W artykule przedstawiono istniejące w polskiej procedurze karnej formy konsensualizmu procesowego. Opisane zostały przesłanki wystąpienia z wnioskami o skazanie bez rozprawy (art. 335 § 1 i 2 Kodeksu postępowania karnego), warunki dobrowolnego poddania się odpowiedzialności karnej oraz instytucji przewidzianej w art. 338a Kodeksu postępowania karnego. Przedstawiona została również ewolucja uprawnień osoby pokrzywdzonej przestępstwem w kontekście rozwiązań konsensualnych oraz realizacja celów postępowania karnego w odniesieniu do wspomnianych trybów. Uwzględniając zmiany wprowadzone przez ostatnie nowelizacje podkreślono rolę porozumień, wskazując ich liczne zalety, zastosowanie w praktyce oraz konsekwencje, jakie wywołują w kolejnych etapach procesu. Zwrócono także uwagę na postępowanie mediacyjne, jak również na przejawy porozumień procesowych w innych aktach prawnych, do których należy zaliczyć między innymi umorzenie restytucyjne.

Hospital liability for sexual assault of a patient

Hospital liability for alleged sexual assault upon a medicated patient by an orderly - non-delegable duty owed by a hospital to its patients - vicarious liability - liability for criminal conduct by employer - recruitment processes - assessment of damages.

Intention and Causation in Medical Non-Killing: The impact of criminal law concepts on euthanasia and assisted suicide

null RAE2008

Personal Injury Liability in Sport: Emerging Trends

Violent play during the course of a game or sport is not a new phenomenon; accompanying legal proceedings are. This article considers personal injury liability for injuries inflicted by a participant upon an opponent during a sporting pursuit. The jurisdictional focus is on England and Wales. The sporting emphasis of the article is on competitive, body contact games. The legal emphasis is on the tort of negligence. Analogous to the law of criminal assault, breach of "implied sporting consent" or the volenti of the claimant will be seen as central in application, as assessed through a number of objective criteria, including the skill level of the injuring party and whether that defendant was acting in "reckless disregard" of the claimant's safety. These criteria or evidential guidelines, which emerge from a careful doctrinal analysis of the relevant case law, are seen as crucial to the examination of the appropriate degree of care in negligence within the prevailing circumstances of sport. The article also searches for some theoretical coherency within the case law, premising it on Fletcher's idea of reciprocal risk-taking. In addition, the underlying policy-related issue of sport's social utility is discussed, as are practical matters relating to vicarious liability, insurance and the measure of damages for "lost sporting opportunity". Moreover, it will be shown that personal injury claims relating to sports participant liability now extend to a consideration of the duties of coaches, referees, sports governing bodies and schools. Finally, this article is set against the backdrop of an apparently spiralling "compensation culture" and the concomitant threat that that "blame culture" poses for the future promotion, operation and administration of sport.

Joint criminal enterprise

The doctrine of joint criminal enterprise is in disarray. Despite repeated judicial scrutiny at the highest level, the doctrine's scope, proper doctrinal basis and function in relation to other modes of complicity remain uncertain. This article examines the doctrine's elements and underlying principles. It argues that while joint criminal enterprise is largely used to make individuals liable for offences committed by their associates in excess of the common criminal purpose, its proper function is to police the limits of associate liability and thus to exculpate rather than inculpate. The doctrine governs not only instances of accessorial liability; it also applies where the parties involved are joint principal offenders. As this puts into question the prevalent view that joint criminal enterprise is a form of secondary participation that results in accessorial liability, the article concludes that it is best seen as a doctrine sui generis.

Political culture and corporate homicide liability in the UK and Europe

This chapter outlines recent developments in the emergence within Europe of systems of criminal law designed to hold corporate bodies liable where they cause the deaths of workers or members of the public. These changes point to the emergence of a new, more punitive, legal culture in relation to corporate crime. At the same time, however, there is evidence to suggest that this punitive culture is not uniform; different national jurisdictions reflect it to differing degrees. The chapter explores the degree to which the UK’s willingness to criminalise work-related deaths is mirrored elsewhere in Europe, and identifies some factors that might account for variations in this regard. In particular, attention is paid to the influence that social and political culture have on practices in this area. It is written as part of a research handbook on corporate crime in Europe, so has an eye on a more generalist audience in some regards.

Professional Liability of the Construction Professional as an Expert Witness in the Spanish Legal Framework

Inside COBRA 2011 RICS International Research Conference, the present paper is linked to analyze the liability of the construction professional in his practice as a expert witness in the Spanish legal framework. In a large number of legal procedures related to the building it is necessary the intervention of the expert witness to report on the subject of litigation, and to give an opinion about possible causes and solutions. This field is increasingly importantly for the practice of construction professional that requires an important specialization. The expert provides his knowledge to the judge in the matter he is dealing with (construction, planning, assessment, legal, ...), providing arguments or reasons as the base for his case and acting as part of the evidence. Although the importance of expert intervention in the judicial process, the responsibilities arising from their activity is a slightly studied field. Therefore, the study has as purpose to think about the regulation of professional activities raising different aims. The first is to define the action of the construction professional-expert witness and the need for expert evidence, establishing the legal implications of this professional activity. The different types of responsibilities (the civil, criminal and administrative) have been established as well as the economic, penal or disciplinary damages that can be derived from the expert report

Testing limited environmental liability against human rights requirements. IES WORKING PAPER 3/2009

Questions regarding oil spills remain high on the political agenda. Legal scholars, legislators as well as the international, European and national Courts struggle to determine key issues, such as who is to be held liable for oil spills, under which conditions and for which damage. The international regime on oil spills was meant to establish an “equilibrium” between the needs of the victims (being compensated for their harm) and the needs of the economic actors (being able to continue their activities). There is, however, a constantly increasing array of legal scholars’ work that criticizes the regime. Indeed, the victims of a recent oil spill, the Erika, have tried to escape the international regime on oil spills and to rely instead on the provisions of national criminal law or EC waste legislation. In parallel, the EC legislator has questioned the sufficiency of the international regime, as it has started preparing legislative acts of its own. One can in fact wonder whether challenging the international liability regime with the European Convention on Human Rights could prove to be a way forward, both for the EC regulators as well as the victims of oil spills. This paper claims that the right to property, as enshrined in Article P1-1 of the Human Rights Convention, could be used to challenge the limited environmental liability provisions of the international frameworks.

Criminal responsibility and social constraint.

Mode of access: Internet.

Copyright law as a matter of (inter)national security? – The attempt to securitise commercial infringement and its spill-over onto individual liability

This article evaluates the way in which copyright infringement has been gradually shifting from an area of civil liability to one of criminal penalty. Traditionally, consideration of copyright issues has been undertaken from a predominantly legal and/or economic perspectives. Whereas traditional legal analysis can explain what legal changes are occurring, and what impact these changes may have, they may not effectively explain ‘how’ these changes have come to occur. The authors propose an alternative inter-disciplinary approach, combining legal analysis with critical security studies, which may help to explain in greater detail how policies in this field have developed. In particular, through applied securitisation theory, this article intends to demonstrate the appropriation of this field by a security discourse, and its consequences for societal and legal developments. In order to explore how the securitisation framework may be a valid approach to a subject such as copyright law and to determine the extent to which copyright law may be said to have been securitised, this article will begin by explaining the origins and main features of securitisation theory, and its applicability to legal study. The authors will then attempt to apply this framework to the development of a criminal law approach to copyright infringement, by focusing on the security escalation it has undergone, developing from an economic issue into one of international security. The analysis of this evolution will be mainly characterised by the securitisation moves taking place at national, European and international levels. Finally, a general reflection will be carried out on whether the securitisation of copyright has indeed been successful and on what the consequences of such a success could be.

Beyond Bryan: Builders' liability and pure economic loss

In Bryan v Maloney, the High Court extended a builder’s duty of care to encompass a liability in negligence for the pure economic loss sustained by a subsequent purchaser of a residential dwelling as a result of latent defects in the building’s construction. Recently, in Woolcock Street Investments Pty Ltd v CDG Pty Ltd, the Court refused to extend this liability to defects in commercial premises. The decision therefore provides an opportunity to re-examine the rationale and policy behind current jurisprudence governing builders’ liability for pure economic loss. In doing so, this article considers the principles relevant to the determination of a duty of care generally and whether the differences between purchasers of residential and commercial properties are as great as the case law suggests

Sexuality in a criminal justice curriculum : a study of student conceptualisations of gay identity

Heteronormative discourses provide the most common lens through which sexuality is understood within university curricula. This means that sexuality is discussed in terms of categories of identity, with heterosexuality accorded primacy while all 'others' are indeed 'othered'. This article draws on research carried out by the authors in a core first year university ethics class, in which a fictional text was introduced with the intention of unpacking these discourses. An ethnographic study was undertaken where both students and teachers engaged in discussions over, and personal written reflections on, the textual content. In reporting the results of that study this article uses a post-structural framework to identify how classroom and textual discourses might be used to break down socially constructed categories of sexuality and students' conceptualisations of non-heterosexual behaviour. It was found that engaging in discussion in the context of the fictional text allowed some students to begin to recognise their own heteronormative views and engage in an informed critique of them.