페이지 이미지
PDF
ePub

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
General Part

Chapter One. Purpose and Score of Application of the Criminal Code.
Subchapter One. Purpose of the Criminal Code. * * *
Subchapter T'uo. Scope of Application of the Criminal Code.

Sec. 8. (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 affect 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:

dId., 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].

(+) A participant in (such] an organization or group who voluntarily surrenders 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." 2

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 I. “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 whaterer 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 (Sec. 327) in Chapter Ten. "Crimes against the Order and Public Peace :" drugs, poisons, 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 Dedsion No. 288 of April 30, 1969, 1. crim. div., súdebna 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 neces. sary 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 squad" 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

cases :

(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", 312 (2) "C", 349 (2);

(d) Chapter Thirteen. "Military Crimes :" Sections 372, par. I and par. III, 376, 377, par. II, 382, 383, par. III, 356, 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 onehalf maximum; but the established penalty should not exceed the term of the individual penalties, nor the maximum term provided for the respective type of penalty (Sec. 24).

PEOPLE'S REPUBLIC OF CHINA Although it follows the civil law system, which is characterized by codified law, the People's Republic of China to date has not promulgated substantive or procedural codes to supplant those of the Nationalist Chinese Government which the Communist Chinese abrogated upon assumption of effective control of the Chinese mainland in 1949. Nor have the Communist Chinese enacted a great number of individual 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 they would fall under the Regulations of the People's Republic of China Governing the Punishment of Counterrevolutionaries either expressly or by analogy to a specified crime. In many instances, the existing criminal laws of the People's Republic of China (PRC) are loosely constructed and vaguely worded. A formula which one encounters frequently in these criminal laws is "p hment 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 freely concede at the outset that adapting these features to the American scene would present formidable difficulties. We here will consider two notable features: the educative 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 between 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 basic economic changes, to transform the individual into a being approaching the ideal “Maoist man," that is, an individual who spontaneously, consistently, and without internal conflict places the interests of the socialist collective above his own selfish interests. One perhaps might say more precisely that the "Maoist man" is one who sincerely is convinced that, in the long run, the interests of the collective and the interests of the individual are so inextricably bound together as to be indistinguishable. 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 universal knowledge and acceptance of the official ideology. They have 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 philosophy 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 by its predominant mode of production. In the United States, for example, the canitalist mode of production is said to prevail, while in the People's Republic of China the mode of production 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 by 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 society, 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, by whether one is an exploiter or one of the exploited. One's world view further is derived from one's class membership. As one of the exploiters, the capitalist cannot help but have the various attitudes belonging to the capitalist class as a social

• entity. The Marxist position is in effect that the individual is the product of his environment, environment being understood in terms of class membership.

According to classical Marxist analysis, changes in the superstructure are the product of changes in the economic base. The Communist Chinese have accepted this classical Marxist position, but have placed great emphasis upon there being a time lag between changes in the economic base and changes in the superstructure as the superstructure is reflected in the thinking of the various individuals comprising the society in question. The socialist mode of production now prevails in the PRC. The prevalence of the socialist mode of production there, however, does not insure that every individual in Communist Chinese society will have absorbed the world view proper to a socialist economic base. There inevitably will be residues of the world view belonging to the previous economic base. Residues of feudal and bourgeois thinking remain in the PRC. The Communist Chinese attempt to eradicate these residues by systematically inculcating socialist ideology. Their extreme emphasis upon the efficacy of ideological education in effecting the individual's transition to the world view proper to the socialist mode of production and upon the impact of this transition upon production has laid them open to the charge from some quarters of harboring the heretical view that ideological influences prevail over economic factors. To some, the Communist Chinese appear to be attempting to influence the economic base through the superstructure rather than letting the economic base determine the superstructure. We need not here decide upon the putative apostasy of the Communist Chinese, but only to emphasize their pronounced reliance upon ideological education in advancing socialism.

The Communist Chinese approach both law and crime in terms of the Marxist framework sketched above. Not only in the capitalist state, but equally in the socialist state, law, as a component of the superstructure, is an instrument which the ruling class uses in maintaining and enhancing its power. As such, law is far from being a supra-class phenomenon impartially formulated to attain or approach the abstract standard of "justice.” All law is the law of a particular social class. It is difficult to distinguish between law and policy, both of which are formulated by the ruling class to serve its own ends. The Communist Chinese themselves speak of policy as being the "soul" of law. Knowledge of the law of the PRC thus becomes as much a part of the ideological education of the Communist Chinese citizen as knowledge of the regime's concrete policies and its abstract Marxist theory. Study of state law plays its part in the growth in the individual of the proper world view. More specifically, study of the criminal law of the PRC provides the citizen with an understanding of the types og behavior characteristic of the socialist man and the types of behavior found in the man whose thinking is still contaminated to varying degrees with residnes bourgeois or feudal ideology or with residues of the thinking appropriate to him when he was one of the exploited. The criminal is, indeed, a person whose thinking for various reasons is so contaminated with such residnes as to pre vent his realizing the identity of his interests with the interests of the socialist collective; not seeing this identity, he places himself at odds with the state and the Communist Party, both of which are seen as carrying out the will of the people in a socialist state. By the time that communism is realized in the PRC there will be no crime and no backward thinking. Until that time, the regime 16 obligated to punish, and often punish severely, actions which are contrary to the interests of the regime, that is, contrary to the interests of the people. In addtion to punitive functions, the Chinese Commumists have taken upon themselves the tasks of eradicating the backward thoughts which lie behind criminal be havior. In their view, they are eradicating the backward thinking which lende to crime primarily by eliminating its environmental sources through the creatien of socialism in the PRC. As an auxiliary measure, however, they concentmte intense efforts upon rehabilitating non-productive elements and reforming crimnals by a program which combines labor with intensive ideological education.

THE EDUCATIVE ROLE OF THE CRIMINAL LAW An important treatise on the criminal law of the People's Republic of China authored by a group of Communist Chinese professors of law stresses that ca of the main tasks of the criminal law of their country is "to educate the eltisaks to observe law self-consciously."! By “self-consciously" in this formulation

1 Lectures on the General Principles of Criminal Lnxo in the People's Reputu China, Joint Publications Research Service Translation No. 13831, CSO: 2050-S, p. 18

« 이전계속 »