Comparative legal systems, Apuntes de Derecho Comparado

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Descargado en: patatabrava .com COMPARATIVE INTRODUCTION TO LEGAL SYSTEMS (UDL) COMMON LAW PROF. 12-

COMMON LAW SYSTEMS

Criminal law

Prof. Carolina Villacampa

Common law systems: introduction ! Common law/case law: law developed by judges though decisions of courts and similar tribunals. The body of precedent ! Statutory law: written or codified law, approved by parliament ! Common law system: legal system that gives precedential weight to common law ! Stare decisis principle: similar cases should be decided according to principled rules so that they will reach the similar results

Origin of common law ! 1154 Henry II institutionalized common law ! Creation of unified system of law common to the county: elevation of local custom to national, end of local control and peculiarities ! Kings judges ruled cases in counties, returned to London and recorded their decisions: creation of precedent (stare decisis) ! As colonies gained independence from Britain, most adopted British common law as the basis for their legal systems

Sources of Criminal Law

! Depending on the State

" Constitution " Statutory law " Common/case Law

! Example: USA today

" The U.S. Constitution " The declaration of independence " Statutes " Case law

Common Law crimes

! Strengths:

" Flexibility

! Weaknesses

" Difficulties to know the criminal conduct (if the precedential case is not clear) " Limits on governmental authority are not clear

Criminal Justice System in Common Law Countries

! Analysis: UK (England/Wales) and USA

! Differences

" USA: federal penal system " USA: Death penalty " USA: transition to civil law system

! Common elements

" Substantive criminal law " Procedural criminal law

Similarities

! General institutions of criminal law are

similar in both countries:

" General features of crime " principles of criminal responsibility " Types of defences

! The structure of criminal process is similar

" Adversarial vs. inquisitorial process

General features of crime

! Essence of concept of crime

! 3 elements:

" Actus reus: the criminal act " Mens rea: a culpable mental state " Concurrence of the two

! Actus reus:

" The external element " Event, behaviour, state or affairs

General features of crime III

! Parties to crime

" Principal offender ! Innocent agency: innocent one whose behaviour cause the actus reus ! Joint principal offenders: more than 1 principal offender " Secondary participation ! person who aids the principal offender ! Aiding: give help or assistance to ! Abetting: incite, instigate or encourage (at the time of the offence) ! Counseling: advise, solicit or encourage (at an earlier time)

General features of crime IV

! Inchoate offences:

" Just begun, incipient o in an initial or early stage offences " Attempt: who, with the intent to commit an offence (indictable), does an act which is more than merely preparatory " Conspiracy: agreement between two or more persons to commit a crime " Incitement (UK): common law misdemeanour to incite another to commit an offence in England and Wales. Abolished by the Serious Crime Act 2007 (creates 3 new offences)

Principles of criminal responsibility II ! Exceptions: " Corporate liability: criminal liability of organizations, predominantly of corporations. Ways to the prosecution: ! Personal liability of corporate directors ! Strict liability offences: committed by a corporation ! Statutory offences imposing duties on corporations ! Vicarious liability: acts of employees and agents " Vicarious liability: mechanism by which the law attributes blame for the acts of another. Two principles: ! Delegation principle: liability for acts done by another where the offender has delegated to that other the performance of certain duties cast on him ! The “attributed act” principle: Employer’s liability for acts done by his employee when they are, by law, employer’s acts.

Types of defences

! Defences (USA defenses): evidence and

arguments offered by a defendant to show

why that person should not be held liable

for criminal defenses

! Categories of defences:

" Alibi " Justifications (General defences in GB) " Excuses (mental condition defences in GB) " Procedural defenses (USA) " Innovative defenses (new excuses- USA)