« 이전계속 »
territorial jurisdiction of the domestic law of Bulgaria against whom, in case of a sentence in absentia, the execution of the penalty could be directed."
"d However, in the cases specified in Sections 4 and 5 the preliminary detention and the penalty served abroad are to be deducted from the Bulgarian one. If the penalties in both countries are of a different nature, the penalty served abroad is to be taken into consideration by the Bulgarian court when determining its penalty (Sec. 7).
Based on the universality principle, the Bulgarian Criminal Code is also applicable extraterritorially to foreign nationals for their crimes committed abroad if these acts are directed against the peace and mankind and affect the interests of another state or foreign nationals (Sec. 6 (1)).
Finally, Section 6 (2) of the Code contains a provision which opens the possibility for an application of the Bulgarian Criminal Code to foreign nationals committing other crimes abroad, namely, if such jurisdiction is provided by an international treaty to which Bulgaria is a party.
The problems of the territorial and extraterritorial application of the Bulgarian Criminal Code may be summed up as follows:
(1) This Code is applicable to Bulgarian citizens for their crimes regardless of the place of commission, e.g., in the country or abroad.
(2) It is applicable to foreign citizens (a) for their crimes committed in Bulgaria ; (b) for all crimes committed abroad if interests of the Bulgarian state or Bulgarian citizens are affected; (c) for crimes committed abroad if these acts are directed against the peace and mankind; and (d) for other crimes committed abroad if an international treaty, to which Bulgaria is a party, so prescribes.
APPENDIX: TRANSLATION FROM BULGARIAN
Criminal Code of the People's Republic of Bulgaria, Durzhaven Vestnik No. 26,
April 2, 1968
Chapter One. Purpose and Score of Application of the Criminal Code.
Sec. 3. (1) The Criminal Code shall apply with respect to all crimes committed within the territory of the People's Republic of Bulgaria.
(2) The question of responsibility of foreigners who enjoy immunity in regard to the criminal jurisdiction of the People's Republic of Bulgaria, shall be decided in accordance with the rules of the international law accepted by it (Bulgaria).
Sec. 4. (1) The Criminal Code shall apply to Bulgarian citizens also for their crimes committed abroad.
(2) A Bulgarian citizen shall not be extradited to a foreign state for adjudication or serving the penalty.
Sec. 5. The Criminal Code shall apply also to foreigners who committed crimes of general character abroad which affect the interests of the People's Republic of Bulgaria or of a Bulgarian citizen.
Sec. 6. (1) The Criminal Code shall apply also with regard to foreigners for committing abroad a crime against the peace and mankind, which affeet the interests of another state or a foreign citizen.
(2) The Criminal Code shall apply also to other crimes committed by foreigners abroad when this is provided by an international treaty, to which the People's Republic of Bulgaria is a party.
Sec. 7. In the cases of Sections 4 and 5 the preliminary detention and the penalty served abroad shall be reduced (prispadat). When both penalties are of different kind, the penalty served abroad shall be taken into consideration for the determination of the penalty by the (Bulgarian] court.
Sec. 8. The sentence of a foreign court for a crime, to which the Bulgarian Criminal Code applies, shall be taken into consideration in the cases established by an international treaty, to which the People's Republic of Bulgaria is a party.
Question 13. Conspiracy as an individual crime is treated in Section 109, Chapter One of the Special Part of the Criminal Code which deals with the most serious crimes against the People's Republic of Bulgaria (treason, high treason, etc.). It reads as follows:
a Id., p. 128.
Section 109 (1) Whoever organizes or leads an organization or group whose objective is to commit crimes against the People's Republic [is punished by between 3 and 12 years of imprisonment].
(2) Whoever is a member of such an organization or group [is punished by up to 10 years of imprisonment].
(3) If the organization or group is established by the instructions or assistance of a foreign state (is punished by between 10 and 15 years of imprisonment).
(4) A participant in (such) an organization or group who voluntarily sur. renders to the authorities before the commission of another crime by this (organization or group) or himself, shall not be punished.
In a decision of 1969, the Supreme Court analyzed the crime described in Section 109, par. 3, by stating that “there are two hypotheses in the elements of this crime; the first exists when the organization or group is established upon the instructions of a foreign state or foreign organization; the second, when the organization or group is created with the assistance of the foreign state or foreign organization. In the first the idea and initiative for the creation derives from the foreign state while in the second case the idea and initiative are given by the individual persons acting within the territory of the People's Republic of Bulgaria." 4
Question 14. The problem of "felony-murder" rule does not exist in Bulgarian criminal legislation.
Question 15. The Bulgarian Government represents a sovereign nation composed of a single political unit, and has exclusive jurisdiction over riots, mass demonstrations and similar offenses without jurisdictional limitation in any form. In other words, there is only one criminal jurisdiction over the entire territory for all crimes committed there by any person, regardless of nationality.
Provisions dealing with the problems of riots, inciting to riots, arming rioters, engaging in a riot, disobedience of public safety orders, etc., are contained in two chapters of the Special Part of the Criminal Code, Chapter One. "Crimes against the People's Republic;" and Chapter Ten. "Crimes against the Order and Public Peace."
Question 16. The Bulgarian Criminal Code does not include any provision designed to outlaw private armies ; however, there are a number of provisions which prosecute paramilitary activities. Thus, in the first place, since the possession and use of firearms and explosives, on the basis of special legislation, are exclusively a licensed matter, the special Subchapter 1. “Crimes Committed in a Generally Dangerous Manner or with Generally Dangerous Weapons" (Secs. 337-339) in Chapter Eleven. “Generally Dangerous Crimes,” makes it a crime and punishes every manufacture, repair, sale, transport, export and import of firearms, explosives and ammunition "without having the right to do that by law or license issued by the proper agency of the Government” or not "within the authorization given by the license.” Also, whoever comes into possession "in whatever manner” of such firearms, etc., or transfers them to another, "without having a license to do so," is subject to severe penalties.
Secondly, every conspiracy to use weapons for political purposes falls under the provisions of Chapter One, "Crimes against the People's Republic."
Question 17. With reference to "crimes without victims,” e.g., crimes in which the victim either consents or is a willing customer of the defendant, the Bulgarian Criminal Code contains provisions dealing with prostitution (Sec. 155), homosexual activity (Sec. 157), and obscenity (Sec. 159) in Subchapter VII. "Lewdness.” of Chapter Two. "Crimes against the Person;" gambling (Ser. 327) in Chapter Ten. "Crimes against the Order and Public Peace :" drugs, roisons, etc. (Sec. 354) in Subchapter III. "Crimes against the Public Health" of Chapter Eleven. "Generally Dangerous Crimes."
Prostitution. While there is no specific provision concerning engaging in prostitution, the Code punishes any person who induces a female person to prostitution or to lewd acts or to sexual relations, as well as whoever systematically provides dwellings to various persons for sexual relations or lewd acts. by imprisonment of up to 5 years; also the condemned person may be forced to resettle in another place.
Homoserual Activity. The Code punishes homosexual activity only when there is use of force, threat or influence based on a position of dependence or supervision: when an adult commits such activity with a minor or infant; or with
21 Decision No. 288 of April 30, 1969, I. crim. dir., Sådehna Praktika, op. cit., p. 43-44. the purpose of material advantages or induces other people because of such advantages, or promises them. Thus, the Code seems to exclude from punishment homosexual relations between consenting adults.
Obscenity. Whoever produces, disseminates, displays, projects or sells works, printed matter, pictures, films, or other objects of a pornographic nature is punished by a fine of 500 leva and the objects in question are subject to confiscation,
Gambling. Whoever engages in gambling or participates in such a game is punishable by correctional labor or a fine of up to 1,000 leva; the money and other objects connected with gambling are confiscated.
Drugs. Whoever, without a license, acquires, possesses, sells, or delivers poison or drugs placed under the licensing regime, is punished by imprisonment of up to 2 years or a fine of up to 300 leva.
Question 18. Three provisions (Secs. 337–339) in Chapter Eleven, “Generally Dangerous Crimes,” Subchapter I. “Crimes Committed in a Generally Dangerous Manner or with Generally Dangerous Weapons" deal exclusively with the offenses connected with firearms and explosives. It must be emphasized [as also mentioned elsewhere in this report, answer to question number 16] that firearms and explosives are subject to a very strict regime provided by special legislation.
Section 337 punishes every person who manufactures, processes, repairs, trades, transports, imports or exports explosives, firearms or ammunition, without having the right to do that by law or license issued by the proper agency of the administration, or does so not in accordance with the authorization issued to him.
Section 338 makes it a crime and punishes those who do not take the necessary measures for protection, especially those prescribed by regulations, ordinances or instructions when keeping, carrying, transporting, or repairing explosives, firearms and ammunition. If damage, injuries, or death occur on account of this negligence, the penalty is severer.
Finally, Section 339 punishes every person who obtains possession of firearms or explosives or delivers them to another without the proper license.
Question 19. The Bulgarian Criminal Code lists 11 different kinds of penalties (Sec. 37 (1); however, Section 37 (2) also provides for the “death penalty executed by a firing squid" as a "temporary and exceptional measure" for “the most serious crimes which jeopardize the foundations of the People's Republic, as well as for other especially dangerous intentional crimes.”
A survey of the crimes for which a death penalty is prescribed reveals 27
(a) Chapter One. "Crimes against the People's Republic:" Sections 96, 97, 99, 100, 102 (2), 104, 106 ;
(b) Chapter Two. "Crimes against the Person :" Section 116 ;
(c) Chapter Eleven. “Generally Dangerous Crimes :" Sections 340 (2) "b", 342 (2) "c", 349 (2);
(d) Chapter Thirteen. “Military Crimes:" Sections 372, par. I and par, III, 376, 377, par. II, 382, 383, par. III, 386, par. I, 397, 399, 400 ;
(e) Chapter Fourteen. "Crimes against Peace and Mankind :" Sections 409, 410, 411, 412, 415, 416.
The death penalty is imposed by the same court before which the trial was conducted; no separate proceedings to determine the sentence in a capital or any other case is possible under the present Bulgarian Criminal Procedure Code.
Question 20. The Bulgarian Code of Criminal Procedure solves the problems of multiple proceedings and trials in the following manner. According to Section 145, as early as in the preliminary investigation, the proceedings involving several connected crimes may be conducted in a joint investigation. The examining magistrate may, however, with the permission of the public prosecutor, divide the investigation when there is reason to assume that it will be conducted more expediently in this way. When a person is accused of committing several crimes, the trial court adjudicates each one separately (Sec. 211).
The Criminal Code further provides that if a person committed several crimes by one act or if he committed several separate crimes, before a sentence has entered into force for any one of them, the court, after determining a penalty for each crime, shall impose the severest penalty among them. The penalties for compulsory resettlement, public reprimand. and deprivation of rights are always added to the fixed severest penalty (Sec. 23). When the penalties imposed are of one and the same kind, the court may increase the severest penalty by one
balf marimum; but the established penalty should not exceed the term of the individual [enalties, nor the maximum term prorided for the respectire type of penalty (See. 21).
PEOPLE'S REPUBLIC OF CHINA Although it follows the civil law sșstem, which is characterized by codified law, the People's Republic of China to date has not promulgatel substantire or procedurai endes to supplant those of the Nationalist Chinese Gorernment which the Communist Chinese abrogated upon assumption of effectire control of the Chinese main and in 1949. For bare the Communist Chinese enacted a great number of indiridual criminal statutes. There are for example, no statutes governing such common crimes as murder, rape, or arson, unless it can be demonstrated or construed that these crimes were committed for counterrevolutionary purposes, in which case thes would fall under the Regulations of the People's Republic of China Gorerning the Punishment of Counterrerolution. aries either espressis or his analogy to a specified crime. In many instances, the existing criminal laws of the People's Republic of China (PRC) are looseis constructed and ragueis worded. A formula which one encounters frequently in these criminal laws is punishment according to the degree of guilt."
Despite the dearth of enacted criminal law and the sketchiness of that which does exist, certain features of the Communist Chinese criminal law and legal system merit examination, although we freels concede at the outset that adanting these features to the American scene would present formidable difficulties We here will consider two notable features: the educatire role of the criminal law and the rehabilitation and reform of nonproductive elements and criminals. Before considering each of these features separately, it is helpful to touch upon the link betteen them. This link is what in Communist China amounts to a profound faith in the capacity of the official ideology, when properly expounded and received and appropriately combined with basie economic changes to transform the individual into a being approaching the ideal (Maoist man." that is, an individual who spontaneous!r. consistently, and without internal conflict places the interests of the socialist collective abore his own selfish interests. One perhaps might say more precisely that the “Maoist man" is one who sincerels is convinced that in the long run, the interests of the collective and the interests of the individual are so inextricabls bound together as to be indis. tinguishable. To the end of bringing every Communist Chinese citizen as close to the ideal "Maoist man" as possible. the Communist Chinese have placed relentless stress upon unirersal knowledge and acceptance of the official ideology. Ther hare expected not only outward conformity to their policies, but also genuine, internal acceptance: the Communist Chinese citizen typically has been denied the “right of silence."
To understand fully how the vision of the Maoist man links the educative role of the criminal law and the rehabilitation and reform of nonproductive elements and criminals, one must know something of the fundamental principles of the Marxist philosophs espoused by the Communist Chinese and the manner in which they relate these fundamental principles to law and crime.
In the Marxist view, any given society can be divided into an economic base and a superstructure erected upon that economic base. The nature of the economic base is determined hr its predominant mode of production. In the United States, for example, the capitalist mode of production is said to prerail, while in the People's Republic of China the mode of produetion is socialist. Included in the superstructure erected upon the economic base are such phenomena as religion. philosophy, politics, ideology, and law. The content of the various components of the superstructure is a reflection of and is determined hr the economic base. In a society where the capitalist mode of production obtains, the religion, philosophy, etc. will necessarily also be capitalist. The content of these various components of the superstructure is in effect decreed by the class of society which economically is in the dominant position in that societr, and the content is calculated to maintain and strengthen the power of the dominant class. One's class membership is determined by one's relation to the mode of production, that is. in general terms, in all pre-socialist societies, br whether one is an exploiter or one of the exploited. One's world riew further is derived from one's class membership. As one of the exploiters, the capitalist cannot heln but have the various attitudes belonging to the capitalist class as a social Sofia Law School, while Professor Stefan Pavlov has a similar position and reputation in the field of criminal procedure law.
There is no commentary on the new 1968 Criminal Code; the two major codes of 1951 and 1952 have been extensively analyzed and interpreted by the above-mentioned legal scholars, as follows: Ivan Neov. Nakazatelno pravo na Narodna Republika Búlgariia. Obshta
Chast (Criminal Law of the People's Republic of Bulgaria. General Part).
Sofia. 1963.525 p. Ivan Nenov. Nakazatelno pravo na Narodna Republika Búlgariia. Obsobena
Chast (Criminal Law of the People's Republic of Bulgaria. Special Part).
Sofia, 1956-59. 2 v. Stefan Pavlov. Nakazatelen protses na Narodna Republika Búlgariia (Criminal
Procedure of the People's Republic of Bulgaria). Sofia, 1971. 819 p.
Very few books dealing with specific topics of problems of criminal law have been written. The following are worth mention: P. Boiadzhiev. Opredeliane na nakazanieto pri súvokupnost ot prestŭpleniia
(Determination of the Penalty in Cases of Cumulation of Crimes). In Vüprosi na nakazatelnoto pravo (Problems of Criminal Law.) Sofia, 1962:
61-106. Venetsi Buzov, Prochinnata vrůzka v sotsialisticheskoto proro (The Casual Con
nection in the Socialist Criminal), Sofia, 1964. Venetsi Buzov. Vmeniaemost i nevmeniaemost spored sotsialisticheskoto naka
zatelno pravo (Responsibility and Non-responsibility According to the Social
ist Criminal Law). Sofia, 1965. P. Gindev. Prichinnata vrůzka i vinata v nakazatelnoto pravo v svetlinata na
dialekticheskija materialism (Casual Connection and Guilt in the Criminal
Law in the Light of Dialectical Materialism). Sofia. 1961. Nikola Manchev. Prestúpleniiata protiv Narodnata Republika (Crimes against
the People's Republic). Sofia, 1959. II. Answers to the Questionaire
Question 1. The Criminal Code of the People's Republic of Bulgaria of April 2, 1968, is divided into two major parts: Gencral Part, consisting of 11 Chapters: 1. Scope and Limits of Application of the Criminal Code 2. Crime [Definition] 3. Criminally Responsible Persons 4. Penalty 5. Determination of the Penalty 6. Special Rules Regarding Juveniles 7. Release from Serving an Imposed Sentence 8. Release from Criminal Responsibility 9. Extinction of Criminal Prosecution and Criminal Penalty 10. Rehabilitation of Criminal Prosecution and Criminal Penalty 11. Compulsory Medical Measures Special Part, comprising 14 Chapters : 1. Crimes against the People's Republic 2. Crimes against the Person 3. Crimes against Citizens' Rights 4. Crimes against Marriage, Family and Youth 5. Crimes against Socialist Property 6. Crimes against the Socialist Economy 7. Crimes against Personal Property 8. Crimes against the Activity of State Organs and Public Organizations 9. Crimes Involving Documents 10. Crimes against Order and Public Peace 11. Generally Dangerous Crimes 12. Crimes against the Defense of the People's Republic 13. Military Crimes 14. Crimes against Peace and Mankind
Question 2. The Code contains 424 Sections running from Section 1 through Section 424. The custom of leaving blank numbers in statutes is not known in Bulgarian legislative techniques and practice. In case a new section must be added to the statutes by an amendment the number of the preceding section