Repressive administrative law:assessing culpability in Dutch social security regulation

With the introduction of strict obligations and sanctions in social security, the traditional boundary between criminal law and administrative law seems to fade away. Administrative fines in particular facilitate strict, efficient and effective law enforcement. In spite of the fact that administrative fines are part of administrative law, criminal law safeguards are still applicable. This could cause problems, since administrative authorities and administrative judges are not necessarily familiar with these criminal law principles. This article addresses the question of how administrative authorities and administrative judges assess culpability when deciding on administrative fines in the Netherlands. The main finding is that administrative authorities, and especially municipalities, overestimate the degree of culpability. The case shows that, in the search for more repressive instruments, it is imperative to allow courts to keep an eye on the proportionality of the sanctions.With the introduction of strict obligations and sanctions in social security, the traditional boundary between criminal law and administrative law seems to fade away. Administrative fines in particular facilitate strict, efficient and effective law enforcement. In spite of the fact that administrative fines are part of administrative law, criminal law safeguards are still applicable. This could cause problems, since administrative authorities and administrative judges are not necessarily familiar with these criminal law principles. This article addresses the question of how administrative authorities and administrative judges assess culpability when deciding on administrative fines in the Netherlands. The main finding is that administrative authorities, and especially municipalities, overestimate the degree of culpability. The case shows that, in the search for more repressive instruments, it is imperative to allow courts to keep an eye on the proportionality of the sanctions

The Logic and Limits of Environmental Criminal Law in the Global Setting: Brazil and the United States--Comparisons, Contrasts, and Questions in Search of a Robust Theory

Strict but arguably unfair and counterproductive systems of criminal environmental law and enforcement exist in both the United States and Brazll in the twenty-first century. In order to create a sovereignty dividend encompassing the rule of law and evenhanded administrative control in the competitive global setting, both countries should rethink and reform their respective systems of environmental criminal law by seeking answers to several questions of legal philosophy in search of a robust theory

The Development and Evolution of the U.S. Law of Corporate Criminal Liability

In the United States, corporate criminal liability developed in response to the industrial revolution and the rise in the scope and importance of corporate activities. This article focuses principally on federal law, which bases corporate criminal liability on the respondeat superior doctrine developed in tort law. In the federal system, the formative period for the doctrine of corporate criminal liability was the early Twentieth Century, when Congress dramatically expanded the reach of federal law, responding to the unprecedented concentration of economic power in corporations and combinations of business concerns as well as new hazards to public health and safety. Both the initial development of the doctrine and the evolution in its use reflect a utilitarian and pragmatic view of criminal law. This article describes the evolution of the practice of corporate criminal liability and sentencing, arguing that administrative responses by the Department of Justice and the U.S. Sentencing Commission have responded to widespread criticism of the existence of corporate liability as well as the breadth of the respondeat superior standard of liability. As a result of this evolution in enforcement, only a very small number of corporations are convicted, and the penalties imposed on those that are convicted are adjusted to reflect corporate culpability. Nevertheless, the broad potential for criminal liability has significant consequences for a wide range of corporate behavior. Corporations have powerful incentives to perform internal investigations, cooperate with both regulators and prosecutors, and actively pursue settlement of claims of misconduct. To avoid criminal liability, corporations also enter into deferred prosecution agreements that often require changes in corporate business practices and governance as well as monitoring to ensure compliance. The purpose of these administrative responses attempt is to reduce or eliminate the negative effects of imposing criminal liability while exploiting the law’s power to deter criminal behavior, improve corporate citizenship, and bring about beneficial structural reforms. The persistence of the doctrine of respondeat-superior-based corporate criminal liability and its limitation in practice shed light on three key aspects federal criminal law. First, the Sentencing Guidelines have served as a more limited substitute for comprehensive criminal code reform. Second, the federal justice system lacks the resources to process the vast majority of cases falling under the criminal code, and prosecutorial discretion is relied upon to select a small fraction of cases for prosecution. Finally, like corporations, all defendants receive incentives for cooperation that may effectively compel them to plead guilty and/or assist in the investigation and prosecution of others

Capitalizing on Criminal Justice

The U.S. criminal justice system “piles on.” It punishes too many for too long. Much criminal law scholarship focuses on the problem of excessive punishment. Yet for the low-level offenses that dominate state court workloads, much of the harm caused by arrests and convictions arises outside the formal criminal sentence. It stems from spiraling hidden penalties and the impact of a criminal record. The key question is not just why the state over-punishes, but rather why so many different institutions—law enforcement institutions as well as civil regulatory agencies and private actors—find it valuable to do so. This Article argues that the reach of the criminal justice system is not just the product of overly punitive laws, but also the product of institutions capitalizing on criminal law decisions for their own ends. Criminal law is meant to serve a public purpose, but in practice, key institutions create, disseminate, and rely on low-level criminal records because they offer a source of revenue or provide a cost-effective way of achieving discrete administrative objectives. These incentives drive and expand the reach of the criminal justice system, even as they work in tension with the state’s sentencing goals. This dynamic creates obvious harm. But it also benefits key actors, such as municipalities, privatized probation companies, background check providers, employers, and others who have incentives to maintain the system as it is. This Article identifies how organizational incentives lead a host of institutions to capitalize on criminal law decisions, and it argues that reform efforts must, as a central goal, recognize and respond to these incentives

Abuse of Authority: A Meaning Deconstruction

Introduction to The Problem: As part of the organization of the government duties and community services, the authority to make a decision is attributed to the government officials (inherent aan het bestuur), which has led many to become a suspect and a convict. On the other hand, it is believed that the government's policies are not subject to the law.Purpose/Objective Study: This study aims to determine to analyze abuse of authority according to a meaning deconstructionDesign/Methodology/Approach: The research applied normative juridical approach as the logical consequence of sui generis of law.Findings: Each network of a structure of meaning is always presented in the form of binary opposition. One of the elements is marginalized and abandoned. Similarly, in the field of law, the term "abuse of authority," which is often connected to the damage that occurs to the state's financial condition, is seen as an absolute part of the Criminal Law. Arbitrarily, it replaces the function of the State Administrative Law. The "financial loss," which is then known as corruption, is the result of 'abuse of authority,' originated from the State Administrative Law. Through Jacques Derrida's perspective, a marginalized binary opposition is made into being. It is not to dominate others, but to share the views. The disjuncture between the state administrative law and criminal law has caused an unresolved issue of corruption. Through Paul Scholten's perspective, in essence, the criminal law has abandoned the social fact that there is a strong correlation between the deeds in the state administrative law and those in the criminal law, which is in the theoretical domain of administrative criminal law. The abandonment is against the hulprecht principle related to the implementation of the law mentioned above. The research employed a normative juridical method based on secondary data using philosophical, conceptual, and legal approaches.Originality: This article discusses specifically abuse of authority, a meaning deconstruction in terms of criminal law and state administrative lawPaper Type: General Revie

The scope of criminal law and criminal sanctions: An economic view and policy implications

This paper considers why some harm-generating activities are controlled by criminal law and criminal sanctions while others are subject to some other mechanism such as civil law, administrative law, regulation or the tax system. It looks at the question from the perspective of the law and economics approach. We seek to identify the comparative benefits of using the criminal law relative to other enforcement mechanisms and – more broadly – why certain specific behaviours are criminalized. The paper argues that an economic approach emphasizing the relative merits of alternative legal instruments for bringing about harm reduction can provide an explanation for a number of recent legal developments. It argues also that the willingness of legislators to combine the use of sanctions traditionally used in one area of the law with sanctions from other areas is more readily explicable in economic terms than in other terms.

Tanggung Jawab Pidana Notaris dalam Kedudukannya sebagai Pejabat Pembuat Akta

Notary is a profession which honors moral values so that every act violating the law conducted by the notaries in performing their duty must be legally liable. In serving their function, it is possible for them to make various kinds of mistake such as administrative error which results in administrative liability, civil fault which causes civil liability, and criminal defect which begets criminal liability. The criminal liability of the notary is based on the criminal law principle geen straf zonder schuld (there is no convict without any offense). If the notaries commit an act against the law and they are able to be responsible for it, either it is done intentionally or unintentionally, they have to receive the legal consequence without any mercy. Therefore, the parameters of the criminal liability are the act against the law and the offense. Those make it possible for the notaries to be condemned