The Civil Law Institutes as Part of Criminal Law
| Author | Jaan Sootak |
| Pages | 178-183 |
Jaan Sootak
The Civil Law Institutes as Part of Criminal Law
The statement presented in the heading seems, prima facie, rather provocative as criminal and civil law, accompanied by public law, comprise three large components of legal order. Legal order, as it is well known, is an integrated whole. A.-T. Kliimann, Professor of Administrative Law at the University of Tartu defines legal order as a body of applicable law organising the life of a particular nation while the nature of legal order constitutes the uniformity and integrity of this body1. Two types of institutes may be identified in legal order: firstly, the institutes solely characteristic of this particular branch of law and thus constituting the main part thereof (e.g. contract in civil law, punishment in criminal law); secondly, similar or coinciding institutes (e.g. guilt). A large area where many civil and criminal law institutes coincide or are similar is the law of delict in civil law. As a result of the uniformity of legal order, an act having the necessary elements of a criminal offence may appear to be legitimate from the perspective of some civil law institute ? for example, the owner's right to acquire a thing belonging to him or her but in arbitrary illegal possession (section 41 of the Law of Property Act).
Such examples may be presented in multitude. It is naturally impossible to provide an exhaustive analysis of all related and coinciding civil and criminal law institutes in one article. Nevertheless, it is clear that legal reform inevitably entails certain shifts and reorganisation also in this field. I will discuss the issue below from the aspect of the criminal law reform in Estonia, taking as the point of departure the problems related to criminal law and its reform and examining the existence of civil law institutes in criminal law, first and foremost, in the positions that have emerged sharply in the course of the reform. Hence, the question is not simply about a comparative analysis of criminal and civil law institutes but, above all, the problems and changes related to the reform, which, in turn, reflect the views of the authors of the drafts, their opponents and the legislator, their legal consciousness2. First I will examine the civil law institutes in the foundations of criminal law, then in the general part of criminal law and finally in relation with the elements of the special part.
One of the most central issues of the foundations of criminal law is crime theory, particularly the material definition of crime. The material definition of crime means the concept of a crime adopted in a particular society and legal order. The materially defined notion of crime has also been referred to as the consciousness of positive law3.
Upon the material definition of crime through its dangerousness to society, F. Liszt plays an important role: according to him, a crime may be materially explained by two features. Firstly, only such an act is punishable pursuant to criminal procedure in the case of which the state considers the restoring function of private law (compulsory discharge of obligations and compensation for damage) insufficient to remedy injustice. Secondly, criminal law interferes when condemnation is aimed not only at the act but also at the offender involved in the act and dangerous to society. According to Liszt, the content of the unlawfulness of an act does not depend on any judgement but exists metalegally and objectively: the legal provision does not create this but finds it already there. Yet he emphasises that if formal and material unlawfulness fail to coincide, the formal aspect must be taken as a point of departure ? the judge is bound by law and the adjustment of the applicable law does not fall within his or her competence4. In such treatment, the principles of nullum crimen nulla poena sine lege and nullum crimen sine periculo sociali are not in conflict as they belong to different levels of the notion of crime and their areas of application need not overlap.
From the point of view of the criminal law reform in Estonia as well as in other Eastern European countries, the solution to the issue of petty offences is important here. In most cases, people are ready to abandon the concept of danger to society as "a relict of Stalinist criminal law" and treat the notion of crime materially and formally, bearing in mind material unlawfulness in the former and the need to maintain the principle of nullum crimen sine lege in the latter case5.
At the same time, the new 1997 Criminal Code of Poland has abandoned the former concept of danger to society; nevertheless, the crime has been materially defined by means of the concept of damage posed to society6. Namely, section 1 (2) of the Code provides that an act is not a crime if the damage that it poses to society is minor (spoleczna szkodliwosc jest znikoma)7. According to subsection 115 (2) of the Code, the court must, upon assessing the degree of the danger that the act poses to society, take into account the type and nature of the damaged benefit, the amount of the damage incurred or threatening, the manner and circumstances of committing the act, the weight and significance of the obligation violated as well as the form of intent, the motives of the actor, the type of the duty of care and the extent to which it was violated. The court takes account of the minor damage posed to society by the act upon conditional suspension of the proceeding (section 66 (1)) as well as upon imposition of punishment (section 53 (1))8.
The criminal law reform of Estonia conducted in 1992 abandoned the concept of danger to society and largely the material definition of crime per se in criminal law. Such solution has been also preserved in the draft Penal Code. The issue of petty offences will be resolved by the procedural principle of opportuneness.
From the aspect of private law, this means that for material criminal law there is no such dilemma as the restoring function of private law ? punishable injustice. At least in the case of the so-called inauthentic petty offences, material criminal law considers it necessary to define an act as punishable injustice and leaves no place for the remedial function of private law. It is true that this function actually emerges as a procedural opportunity and particularly as the function of remedy. It is also so in section 153a of the German StPO where the monetary payments of the offender are of such nature. The new draft Penal Code of Estonia also lacks an analogue to section 46a of StGB (reduction in punishment or exemption from punishment in the case of remedy)9. In the case of conditional imprisonment section 56b II of StGB provides for several monetary remedial duties (community service, monetary payment to state, the State Treasury or to the account of a community association, etc.), which are neither included in sections 47-471 of the Criminal Code applicable in Estonia nor in sections 77-79 of the draft Penal Code (they only contain an obligation to compensate for the damage incurred by crime). Thus, we may state that the criminal law reform in Estonia distances itself through its material crime theory from the remedial function of criminal law that falls entirely within the scope of private law.
The notion of criminal liability was one of the most central institutes of Soviet criminal law. It proceeded from a discussion that had commenced as early as in...
To continue reading
Request your trial