Criminal liability
Punishing an offence: how it differs from civil liability, legality of offences and penalties, the three elements, classification into petty offence, misdemeanour and felony, attempt and legal persons.
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- 4 topics
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Criminal liability: what is it?
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The obligation to answer for an offence before a criminal court and to undergo the penalty the law provides.
It punishes on behalf of society: the prosecutor brings the case, the fine goes to the Treasury, and insurance does not cover the penalty. The victim may also seek compensation.
A prosecutor charges an internet user over behaviour seen as shocking, but which no text prohibits. What does the court decide?
- Acquittal: with no text providing for it, an act cannot be punished
- Conviction, because the behaviour is contrary to morality and social order
- Conviction, on the basis of case law
- Referral to the civil judge, the only one competent in such a case
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Acquittal: with no text providing for it, an act cannot be punished
No offence without a text: neither morality nor case law creates an offence. The criminal judge may only punish what statute defined before the facts.
An offence requires a … element (a text that criminalises it), a … element (an act) and a … element (intent or fault).
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An offence requires a legal element (a text that criminalises it), a material element (an act) and a mental element (intent or fault).
All three are needed: no text, no offence; no act, nothing to punish (for an attempt, a start of execution is enough); no intent or fault, no felony or misdemeanour.
Legality of offences and penalties: what is it?
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The principle that no one may be punished for an act, or by a penalty, that the law had not provided for before it was committed.
It protects against arbitrariness: only statute defines the serious offences and their penalties, and the criminal judge must read the text strictly.
A student opens an unprotected shared folder by mistake and closes it straight away. Is there an offence of fraudulent access?
- Yes: access took place, the material element is enough
- No: the mental element is missing, he did not act fraudulently
- Yes, but only as an attempt
- No: the law does not protect folders their owner has left without any protection
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No: the mental element is missing, he did not act fraudulently
Fraudulent access requires the will to enter a system without right. An opening by mistake, dropped at once, lacks that fraudulent character.