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CONTENTS

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Hearing dates:

Page

February 10, 1971, part I.

1-517

May 24, 1971, part II.

519-586

May 25, 1971, part II.-

587-682

September 24, 1971, part II.

683-922

February 15, 16, 17, 1972, part III, subpart A.

923–1391

March 21, 22, 23, 1972, part III, subpart B.-

1393-1834

March 21, 1972, part III, subpart C (comparative law).

1837-2741

Statement of:

Mueller, Prof. Gerhard O. W., director, Institute of Criminal Law,

New York University-

1908

Nanda, Prof. Ved P., director of the international legal studies pro-

gram, University of Denver College of Law.--

1913

Exhibits:

Andenaes, Prof. Johannes, comment by, “Comparing Study Draft of

Proposed New Federal Criminal Code to European Penal Codes,"

excerpt from Working Papers of the National Commission on

Reform of Federal Criminal Laws.-

2949

Capital punishment, "The System of Capital Punishment and Public

Opinion," by Kõichi Kikuta, Hõritsu jiho, vol. 42, No. 5, May
1970..

2128
“Causing Criminal Harm,” Gerhard O. W. Mueller, from Essays in
Criminal Science.

1860
**Ethiopian Penal Code, On Interpreting the," excerpts from, Peter L.
Strauss..

1925
"Etudes et Varietés” (section of the Review), “Draft of a Federal

Criminal Code of the United States," Genevieve Sutton, judge,

Tribunal de grande instance, Paris.-

2091

"Extraterritorial Applicability of the Criminal Codes in Various

European Countries,” and “Foreign Criminal Laws Compared

with the Proposed Federal Criminal Code,” prepared by the staff

of the Law Library, Library of Congress-

2173, 2221

Albania..

2173

Argentina

2226

Austria.

2173

Belgium

2175, 2229

Bulgaria --

2175, 2229

China, People's Republic of -

2239

Cuba,

2248

Czechoslovakia

2252

Denmark,

2195, 2201, 2654, 2729

Egypt

2259

Ethiopia

2279

France.

2127, 2301

Germany

2180, 2338

Greece

2184, 2365

Hungary

2188

India

2375

Italy.

2188

Japan.

2506

Korea.

2514

Netherlands

2190

Norway

2202, 2204, 2560, 2641, 2657

Pakistan

2521

Philippines

2545

Poland.

2192

Page Romania.

2194 Scandinavian countries, general

2195, 2549, 2668 Singapore

2880 Somalia.

2888 South Vietnam.

2944 Soviet Union..

2218 Switzerland.

2217, 2923 Sweden..

2203, 2661 Thailand.

2904 Turkey --

2910 Yugoslavia

2220 French Criminal Procedure, “The Accused: A Comparative Study,' R. Vouin..

2313 Insanity defense, “A Comparative Study of Criminal Insanity: A Plea

for the Abolition of the Insanity Defense,” Paul Koota, Brooklyn Law School (1971) -

2154 Katz, Prof. Milton, director, International Legal Studies, Harvard University, letter of May 15, 1972.-

2086 Kim, Prof. Čhin, College of Law, University of Illinois, "International

Comparative Criminal Law-Comparison of Asian Criminal Law with Proposed Federal Criminal Code”.

2051 “Law and Lawnesses,” chapter from "Psychoanalytic Jurisprudence,' Albert A. Ehrenzweig

1978 Letter-Questionnaire, February 3, 1972, from Chairman McClellan to professors of comparative law with selected responses thereto. 1920 Bassiouni, Prof. M.C., DePaul University

2013 Berman, Prof. Harold' J., Harvard Law School.

2067 Ehrenzweig, Prof. Albert A., School of Law, University of California, Berkeley

1977 Glos, Prof. George E., St. Mary's University of San Antonio. 2015 Grzydowski, Prof. Kazimierz, Duke University

2064 Kos-Rabcewicz-Zubkowski, Dr. L., University of Ottawa.

2077 Mueller, Gerhard 0. W., director, Criminal Law Education and Research Center, New York University,

1837 Silving, Prof. Helen, University of Puerto Rico

1970 Strauss, Prof. Peter L., School of Law, Columbia University

1924 Sutton, Mrs. Geneviève, judge, Tribunal de grand instance de Paris.

2087 Wagner, Prof. W.J., School of Law, University of Detroit-

2080 (The) Max-Planck Institute for Foreign and International Criminal

Law, Robert A. Riegert, the American Journal of Comparative
Law, vol. 16, Nos. 1 and 2 (1968) --

2143 Memorandum concerning the criminal code of the Russian Soviet

Federated Socialist Republic (RSFSR) and its relation to the proposed Federal criminal code now under consideration in the U.S.

Senate, Harold J. Berman, professor of law, Harvard Law School.. 2068 “(A) Study in the Treatment of Crime and' Law Enforcement in the United States as Compared to the European Countries,” George E. Glos, St. Mary's Law Journal, vol. 3, No. 2, Winter 1971--

2022 Swigert, Stephen B., "Extraterritorial Jurisdiction-Criminal Law,'

Notes/1972, Harvard International Law Journal, vol. 13 (1972). 2969 REFORM OF THE FEDERAL CRIMINAL LAWS

PART III

SUBPART C (COMPARATIVE LAWS)

TUESDAY, MARCH 21, 1972

'

U.S. SENATE,
SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant, to notice, at 10 a.m. in room 2228, New Senate Office Building, Senator Roman Hruska (acting chairman) presiding.

Present: Senator Hruska. Also present: G. Robert Blakey, chief counsel; Malcclm D. Hawk, minority counsel; Kenneth A. Lazarus, Robert H. Joost, and Elizabeth Bates, assistant counsels; and Mrs. Mable A. Downey, clerk.

Senator HRUSKA. This morning the subcommittee will focus its attention on the relation between the proposed code and foreign law. We are fortunate in having two distinguished scholars. In addition, we have a number of letters and several studies from the Library of Congress which will be inserted into todays record. Our first witness is Prof. Gerhard Mueller of New York University.

You have submitted some material to the committee, Professor. It is quite extended and will be included in the record, because it will lend itself much more as a matter of reference and study than it will for current comment. (The material follows:) MEMORANDUM : SUBCOMMITTEE ON CRIMINAL LAWS AND Procedures,

U.S. SENATE, COMMITTEE ON THE JUDICIARY Re: Response to questionnaire memorandum containing twenty questions for a Comparative Law evaluation of the proposed final draft of a new Federal criminal code, Title 18, United States Code.

Submitted by : Prof. G. O. W. Mueller, Director, Criminal Law Education and Research Center, NYU.

INTRODUCTION

The Criminal Law Education Research Center of New York University obtained a detailed questionnaire, composed of approximately 50 questions, pertaining to provisions of the Draft of the Federal Criminal Code. In the extremely limited time available, the Criminal Law Education Research Center has done its best to provide some answers to the very difficult questions posed. The CLEAR Center has been in consultation with the National Commission on Reform of Federal Criminal Law at an earlier stage and at that time advised the Commissioners on a range of subjects, including mistake, regulatory, of, fenses, assault, crimes, consent, duress, necessity, immaturity, jurisdiction and some other provisions. At that time we tried to urge upon the Commission the need to make a major commitment toward the assembly of comparative law data and on the experience of other nations, so as to get the best possible input for the American Federal Code. In this respect we did not succeed, since contact with the Comparative Criminal Law Project of the Criminal Law Education and Research Center of New York University remained minimal and no further specific requests for comparative evaluations were received.

In this connection we would like to point out that all of the major continental penal codifications recently produced have operated with the comparative method. Particularly the codifiers of Japan, Germany and Sweden have undertaken considerable comparative research on solutions adopted by foreign legal systems.

There are special departments in several Ministries of Justice, concerned with matters of comparative criminal law. As for Germany, considerable federal funds are made available to maintain the Institute of Foreign and International Criminal Law at the University of Freiburg, Germany, as an adjunct of the government's reform effort, in criminal justice.

It would not be amiss to point out to the National Commission, that while we have done our best to provide it with some comparative data, the Commission ideally is entitled to more and better data. Consequently, we propose that the National Institute of Law Enforcement and Criminal Justice be urged or instructed to create a research branch competent in the area of comparative criminal law and criminology or, in the alternative, to sub-contract for such services with an Institute like the Comparative Criminal Law Project of the Criminal Law Education and Research Center. A funded and well staffed agency, which is constantly at the disposition of federal government agencies, is needed, so as to aid legislative reform efforts by means of reliable experience data from other countries.

Q.1. The National Commission, following the lead of the American Law Institute in its Model Penal Code (1962), has proposed what is primarily a code of substantive criminal law. The proposed Code is divided into the Part A, General Provisions; Part B, Specific Offenses; Part C, Sentencing. Is such a tripartite division followed in the foreign codes? How are foreign codes structured ?

A. It is almost universal practice for nations of the civil law system to divide their penal codes into two parts: (1) the General Part, (2) the Special Part. The General Part deals with those provisions that have general applicability regardless of the nature of the crime; for example the temporal and territorial applicability, attempts and accessoryship, justifications and excuses, etc. In England in 1953, with the publication of Glanville William's work “Criminal Law: The General Part," the thinking now likewise goes in terms of dividing problems of substantive Criminal Law into a General Part and a Special Part. Note that all procedure are being dealt with in separate Codes of Criminal Procedure.

Only one Code of Europe has a tripartition in terms of General Part, Special Part and provision on sentencing and corrections. This is Europe's most recent penal code, the Royal Swedish Code of 1965. Consequently, the scheme of the Federal Draft Penal Code, envisaging a tripartition into General Provisions, Specific Offenses and Sentencing, is paralleled by Europe's most modern penal code. We are entirely in aggreement with the draft code's tri-partition.

Parenthetically, it is to be noted that some codes of Europe purport to have a partition into three or four parts. This, however, is purely the result of dividing the Special Part into several sub-parts. For example, the French Penal Code divides the Special Part into separate parts for felonies and misdemean

ors.

Q.2. The proposed code contains 350 sections (Part A: 73; Part B: 238; Part C: 39), but the numbering system runs from Section 101 to Section 3601. Is it customary in foreign codes to leave so many blank numbers for future statures? What is the usual numbering system?

A. The Code's proposed 350 sections appear to be at a par with the standard number of provisions in foreign penal codes. For example, the French Penal Code has 477 sections. The Norwegian Penal Code has 436 sections. The German Penal Code has 370 sections. The relationships between General Part and Special Part, likewise, are quite comparable. In the proposed Code there are 73 sections in the General Part and 39 sections in the Corrections Part or a total of 112 sections, comparing with the General Part of the French Penal Code of 74 sections, the Norwegian Code of 82 sections and the German Penal Code of 87 sections. Of course, the number of sections alone does not give us a proper basis of comparison, since sections may be wordy or terse, may have sub-divisions or mone, may cover little or may cover a lot. Prima facie, however, we have comparability.

In foreign penal codes, it is not customary to have blank numbers between sections. The majority of foreign jurists consider the penal code to have an almost immutable permanence. The very idea of “adding" anything to it once it is promulgated is quite antithetical. This is not to say that the whole corpus juris stands still, but rather that either new laws are added by means of subsections or sections marked "a" "b" "c", etc., or "bis", or that they are placed in special legislation outside the penal code. The question of immutability of the code, however, does not strike us as an overpowering factor. The fact is that penal codes are not immutable, that they all have a limited life expectancy, which in the modern and age probably is no more than half a century, and that during the first years after promulgation any penal code will have to undergo a considerable amount of interpretation. Most of that interpretation will be by adjudication, some of it may have to be by legislation. It is to be expected and cannot be avoided. Consequently, provisions may have to be made for a proper way of inserting amendments into the code. The code itself and its amendments are meant to serve a very modern society, which in the immediate, foreseeable future will be governed largely by computer programing. Consequently, a system for the numbering of penal code provisions ought to be adopted which is capable of the most rational system of computerization. Neither the European nor the American modes seem to be particularly suitable for that purpose. It would seem to appear that a modified version of the decimal system should be used, according to which each major chapter has a decimal number, the section thereunder has a sub-decimal number, and each particular provision under which has a sub-sub-decimal number, for the best possible coniputerization.

Of course, the number of sections in itself is not indicative of the actual coverage of a penal code. Conceptually, a code of less than one hundred sections (like the Swedish Code) can cover as much as a code of over four bundred sections like the German Penal Code. What counts is whether a code does, indeed, cover substantially all of the criminal law material of a given country. What counts also is in how many words the penal code is capable of expressing these conceptions. That last point I have explained in another connection, (infra).

0.3. Combined with Q10 The proposed Code defines the various intent" requirements or the mental elements necessary for criminal conduct in $302(1). The Code would establish four different kinds of culpability: intentionally, knowingly, recklessly and negligently. How do the foreign criminal codes regard and use the element of the defendant's state of mind? Is it used to determine guilt or innocence? Degree of guilt? Sentence? How do the kinds of culpability proposed in the draft code compare with foreign provisions.

A. In our view, this is the most crucial question of the entire penal code. We at once recognize the progressive approach of the Draft Penal Code, but also notice a fundamental inconsistency within the code itself, to be noted (infra).

1. The forms of culpability: The forms of "culpability” proposed by the penal code are not totally different from European forms of culpability. Of course, most European penal codes speak of only two “forms" of culpability : (1) intent (dolus), and (2) negligence (culpa). In European and other civil law countries, it is left to the judiciary to define the exact meaning of these terms, and particularly to find a place for what in American Law we call "recklessness." Thousands of dissertations have been written in all civil law countries about the forms of culpability and, in particular, about the placing of recklessness either within the form of intent or the form of negligence. No useful purpose would be served in even attempting to summarize them here. In passing, it might merely be noted that the commission of a crime “knowingly"

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