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The third part contains decrees issued by the executive power and consists of only 15 articles preceded by the letter D.
According to P. Bouzat and J. Pinatel, the basic features of the French Penal Code are as follows: 1
The Penal Code is a code that is:
(A) Severe. The compilers of the Code, in fact, learned from experience and were influenced by the Napoleonic tendency toward harshness (see infra No. 94), endeavored to strengthen the repression which the constitutent assemblies, nourished by philosophical illusions, had weakened by imprudence. Thus, the Code reestablished certain penalties abolished in 1791 (general confiscation, branding iron, mutilation of the hand before execution for parricide), perpetual penalties, and increased cases of the application of capital punishment. However, as a concomitant to the reestablishment of perpetual penalties, it reassured the right to clemency.
(B) Penetrated by the utilitarian spirit. The compilers of the Penal Code. inspired by the ideas of Beccaria (which they misinterpreted), made social utility the dominating idea, voluntarily relegating the idea of justice to second place. Ths point of view also contributed to the harshness of the penalties prescribed by the Code. It also explains the slight immorality of certain skillfull measures of criminal policy such as the absolving excuse given to those who, having participated in an attempt against State security or the counterfeiting of money, denounced their accomplices (Art. 105 ff., Art. 138).
(C) Having a transitional character concerning the determination of the power of judges. The compilers of the Code adopted a solution midway between the arbitrariness of the old regime and the system of fixed penalties. Refusing to give entire freedom to judges to establish the amount of the penalty, they aholished fixed penalties, leaving the judges a certain power of discretion between minimum and maximum; they increased this power in correctional matters, introducing mitigating circumstances when the prejudice did not exceed 25 Fr. (Art. 363).
(D) Based on abstractions. The Criminal Code, and this is without doubt the most serious objection which can be made, is a purely legal construction dominated by abstract rules and fictions. It considers the criminal an abstract being conceived by reason, but not a real being subject to variable motivations. It considers an offense, not an act of a delinquent manifesting his criminal temperament, but a pure legal abstraction having a proper and unchangeable nature. Consequently, penal responsibility is purely objective, calculated according to the nature of the offense and not to the personality of the delinquent. The Criminal Code considers all delinquents identical and in the face of the same offense punishable by the same penalty.
From the point of view of legislative technique, the Code suffers from the many shortcomings observed by R. Merle and A. Vitu : 2
The Criminal Code, on the other hand. is an imperfect work. Technically it is inferior to the Civil Code, its senior by 6 years. Its technique is mediocre. because certain provisions of renal law, properly so-called, were unskillfully inserted in the Code of Criminal Investigation (for instance. rules on the application of penal law in space, or the principle of nonaccumulation of penalties, or rules on the period of limitations of penalties). It is divided into four Books according to an illogical plan. ..
General theories are absent from the Code, such as fault or state of necessity. or barely formulated. Others were written concerning only major or minor crimes and the courts extended them to contraventions (such as concepts of insanity, absolute necessity, Art. 64).
Others are hidden in the special part of the Code, concerning certain groups of contraventions, while they should be included in the general part ; for instance, justifying facts (Arts. 327 to 329) and excusable provocation (Arts. 321 to 326) appears only on homicides, assault and battery, while their importance is much greater.
Under the influence of dominant ideas in the 19th century, the Criminal Code underwent several profound reforms. Among these should be mentioned the great Law of April 28. 1832. which modified 162 articles of the Code generally directing the moderation of penalties. The said Law abolished certain
1 P. Bouzat, and J. Pinatel, Traité de droit pénal et de criminologie. v. 1. Paris, Dalloz, 1970 97
2 R. Merle and A. Vitu. Traité de droit criminel, Paris, Editions Cujas, 1967. p. 149,
penalties, confiscation of property, branding iron, iron collar, the mutilation of hands, and restricted the application of capital punishment, and defined attempt more precisely. The Law of May 31, 1854, abolished civil death and a great number of violations considered minor crimes were qualified as contraventions (the so-called correctionalization) by the Law of May 13, 1863.
The other measures taken from 1875 to 1914 were directed toward the individualization of penalties for the different categories of delinquents, such as the Law of May 27, 1885, which instituted exile (religation) for professional and habitual delinquents, the Law of March 26, 1891, called the Law of Berenger, which permitted the application of suspended sentences for first offenders, and more severe penalties for recidivists, and the Law of July 22, 1912, which instituted probation for juvenile delinquents.
The third period is characterized by a return to harsh penalties for offenses against: a) economic interests (more energetic repression of commercial and fiscal fraud), b) family and social interests (abandonment of the family, Law of February 7, 1924; abortion, Law of March 27, 1923; bigamy, Law of February 17, 1933; infanticide, Law of September 2, 1941), c) State security (Decree-Law of July 29, 1939).
Despite the humanitarian tendencies to soften the penalties which dominated the French government after the liberation, in the opinion of Bouzat and Pinatel, the following factor contributed to the return to severe punishment : :
Unfortunately, the long persistence of the black market, a general increase in delinquency, and especially armed aggression, contributed, on the contrary, to severity. (a) It is characteristic that the regime of economic violations instituted by the ordinances of June 30, 1945, enacted during the period of the black market, took a definitive place in our penal law. (b) It is characteristic, while one part of public opinion asked for the abolition of capital punishment, legislation, under pressure from the other side of public opinion, established new cases for the application of capital punishment. For instance, the Law of November 23, 1950, punished armed robbery with capital punishment; the Law of April 13, 1945, prescribed capital punishment for habitual mistreatment of a child, even without the intention to kill. (c) The anxiety for national defense and the defense of the regime entailed the rigorous repression of offenses against State security. (d) The development of a greater sense of solidarity led the legislator to make the omission to give assistance a crime.
QUESTION 2 The articles of the Criminal Code are numbered in sequence. The original numbering remains unchanged although some articles have been abolished.
Marc Ancel in his introduction to the translation of the French Penal Code observed that the Penal Code :
is based exactly upon the essential premises of classical law. legality, mens rea and retributive punishment. . . . It states abstract rules defining crimes objectively viewed, but is only concerned with crime as defined by penal law; the criminal as viewed by both the Napoleonic and the revolutionary legislator, is an abstract being, always equal to himself and identical in every criminal event. The idea of individualization is profoundly alien to the Penal Code as presented in its text of 1810. This idea was introduced into French penal law only through an erolution precipitated by the revision of 1832, and followed by enactment of several special
laws which were not incorporated in the Penal Code. The classical doctrine ignored criminal intent, attaching basic importance to violations and their external elements. Exegetic methods of interpretation were also unfavorable to the theory of intent.”
That attitude changed when the legislator, under the influence of the new approach to the delinquent, leaned more and more toward the individualization of penalties. Thus, the elements of criminal intent and motivation, in French theory and practice, acquired greater importance.'
3 Bouzat, op. cit., v. 1, p. 121-122.
1 G. 0. W. Mueller, editor. The French Penal Onde. South Hackensack, N.J., Fred B. Rothman & Co.. 1960. p. 8.
2 J. Lehret. "Essai sur la notion de l'intention criminelle." Revue de science criminelle et de droit pénal comparé 1938. p. 44 ff.
The honorary first President of the Court of Appeals of Angers, Pierre Mimin, observed the following:
French law does not furnish any general idea of intention. It is the same, more or less, for all the concepts reported in this study. There are no texts providing information on motivation in criminal law, error of law, error of fact, or on the relationship between result and qualification. The
necessity for a separate will from intent does not appear. He concluded that efforts to provide an adequate definition of criminal intent had been unsuccessful.
According to P. Bouzat the best definition of criminal intent was provided by Garçon : 5 “Criminal intent, i.e., the knowledge of the delinquent that he has performed an illegal act.”
It is generally admitted that there are intentional and unintentional offenses. Almost all major crimes are intentional offenses. Article 75 of the Penal Code is an exception.
Minor correctional crimes consist in part of intentional offenses (mainly those established in the Penal Code) and of unintentional offenses, mainly established by special laws. Before the reform of 1958, almost all police contraventions were unintentional offenses. However, by the Decree of December 23, 1958, the fifth class of contraventions which before had been considered minor crimes was established.
In French practice a distinction is made between criminal intent and fault. According to G. Stevani and G. Levasseur: 6
When the perpetrator wanted the act and its consequences and performed an act to produce them, it is said that he had criminal intent or penal dolus (murder, assassination, robbery). When the perpetrator wanted an act but not its consequences, which he should have foreseen or could have avoided, then it was a criminal fault (homicide by injury, imprudence, or contravention).
The terms “intention" or dolus and "fault” are seldom used in the Penal Code or in later legislation. For the designation of criminal intent the terms: deliberately, fraudulently, knowingly, with purpose, or even willfully are used. And, for the description of a criminal fault, several expressions are used : lack of skill, imprudence, inattention, negligence or nonobservance of the rules (concerning homicide and involuntary injuries, Art. 319, 320, R.40-4, Penal Code), lack of precaution, or lack of repair or maintenance (Art. R.34-3, 4, Penal Code).
Criminal intent is not always of the same degree. Classical penal law makes a distinction between general and special, simple and aggravated, determined and undetermined, direct and indirect. General intent consists in the will to accomplish an act prohibited by law. Sometimes the law subordinates the offense to a specific will (Art. 379, "whoever fraudulently takes away" or Art. 417, “whoever prejudices French industry"), when it is special intent. Simple as opposed to aggravated intent is connected with premeditation. According to Article 297: "Premeditation consists of a decision arrived at beforehand to make a homicidal attack on a certain person or anyone encountered, regardless of any of the circumstances or conditions on which the act may depend."
In spite of the different terminology used to designate fault, according to A. Vitu and R. Merle:?
Penal fault consists either in not foreseeing the injurious consequences of the accomplished act, or in not believing that they will occur, or in not taking the necessary measures to prevent them. The result is not imputable to the will of the perpetrator, but rather to the fault of the intelligence or inertia of the will.
32. Dalloz. Répertoiré de droit pénal et de procédure pénal. Paris, Jurisprudence Générale Dalloz, 1968.
*P. Mimin. “L'intention et le mohil" in La Chambre Criminelle et en jurisprudence. Recueil d'études en hommage à la mémoire de Maurice Patin. Paris, Editions Cujas, 1965.
6 G. Stefani and G. Levasseur. Droit pénal général et procédure pénale, Paris, Dalloz, 1971. p. 156.
7 R. Merle and A. Vitu. Traité de droit criminel. Paris Editions Cujas, 1967, p. 450.
Criminal fault is different from contrarentional fault which is not a result of imprudence or negligence, but simply consists of the violation of regulations. Therefore, a very important difference follows from the point of view of evidence. Criminal fault must be proven by the prosecution, whereas no such evidence is necessary on the part of the prosecution in contraventional fault. It is also of great importance for the reparation of damage.
As pointed out by G. Stefani and G. Levasseur, "The French Penal Code is loyal to the classical concept, considering only intent, and not taking motivation into account at all.” $
If motivation has no effect on the punishment in theory, in practice it is different. In order to avoid the harshness of the law, the courts take mitigating circumstances into account (Art. 463, Penal Code).
QUESTION 4 In cases of intentional offenses, the penalty is not subject to the results of the offense. In certain cases, even the attempt is punishable. The situation is quite different in unintentional offenses. Even the most serious fault is not sufficient to entail a sanction; it is necessary that causation exists between the fault and the results. As an illustration, the provisions of Article 309 of the Penal Code could be mentioned.
For a long time the courts considered that the causality had to be direct and immediate; actually such a correlation is no longer required.'
According to R. Merle and A. Vitu? actually the ritual formula in all decisions is as follows:
. . considering that the provisions of Articles 319 and 320 punish any person who involuntarily was the cause of a homicide or wounds, it is
not required that this cause be direct and immediate. The authors concluded that it is possible to connect most of the decisions either to the theory of adequate causality, or to the approximative equivalence of the conditions and that the Supreme Court is leaning more toward the thesis of the equivalence of conditions."
Article 64 of the Penal Code reads as follows “If the person charged with the commission of a major crime was insane at the time of commission or acted out of absolute necessity, there shall be no major or minor crime."
According to Stafani and G. Levasseur: *
In penal law the term démence (insanity) designates all forms of mental alienation. It applies to congenital (cretin, idiot, imbecile) afflictions of the intelligence as well as those acquired as a result of illness (general paralysis, early insanity).
The determination of insanity is a question of fact. When there is any doubt about mental capacity, a medical examination by psychiatrists may be requested by the prosecution or by the parties concerned. The experts are chosen from a national list established by the office of the Court of Cassation or from a list prepared by the courts of appeal after consultation with the General Procurator (Art. 157 of the Code of Criminal Procedure).
In order to apply the clause of insanity, it must be established that the condition existed at the time of the commission of the offense and that it was total. If insanity is established during the preliminary investigation, the investigating judge must issue an ordinance that there is no ground for prosecution. In the court of assizes, the question of insanity is included in the general questionnaire of guilt. If the defendent is acquitted, the court must release him. Only the prefect or members of the family may ask to have the person concerned put in a mental inst on.
Insanity is the subjective cause of nonresponsibility which affects only the insane person, but not others who collaborated in the commission of the offense, i.e., joint perpetrators, accomplices. If the accused is acquitted by
& Stefani, supra note 6 at p. 189.
+ G. Stefani, op. cit., p. 263. For different forms of mental alienation see P. Bouzat, op. cit., v. 1, p. 325 ff.
reason of insanity, the court may charge all or part of the costs to him (Art. 474 C.C.P.).
QUESTION 6 Intoxication may result from the drinking of alcoholic beverages or from the use of narcotics (morphine, cocaine, etc.).
In case of alcoholic intoxication, several situations may occur. If the intoxicated person is in a state of delirium tremens then there is veritable insanity in the meaning of Article 64 of the Penal Code. Except for this extreme case, this type of intoxication does not constitute a cause of irresponsibility. On the contrary, according to the provisions of Article L.1 of the Traffic Code (Code de la route), the fact of intoxication constitutes an aggravating circumstance in a case of homicide or involuntary injury and the penalties are doubled.'
Also, according to the provisions of Article 65 of the Beverage Code (Code des mesures concernant les débits des boissons et la lutte contre alcoholisme. Journal official, Febr. 10, 1955. p. 1575) anyone who is found in the streets, roads. plazas, cafés, cabarets, or other public places in an evident state of intoxication shall be punished with a fine of from 200 Fr. to 1200 Fr. In case of relapse, the penalty may be doubled and connected with the deprivation of certain rights: the right to vote, to be elected, to be appointed to public duties, to carry arms (Art. 66).
Dangerous alcoholics may be placed under the surveillance of a public health authority (Art. L.335-1) under the conditions established in Article L.35-2 of the Code of Public Health.”
Similar problems arise concerning drug addicts. Addicts accused of any of the minor crimes specified in Articles L.627 and L.628 of the Code of Public Health may be compelled by an order of the examining magistrate, upon the advice of a special commission, to undergo treatment to correct the addiction. Failure to comply with this order may be punished by imprisonment for from 6 days to 2 months and a fine of from 360 Fr. to 10.000 Fr.
Decisions taken for the cure of addicts are not entered in the judicial register. »
QUESTION 7 The French Penal Code considers self-defense a right and therefore the use of force is justified. The pertinent articles read as follows:
Art. 328.- When homicide, wounding, or striking was compelled by the immediate and actual necessity to defend oneself or another no major or minor crime has been committed.
Art. 329.-Circumstances of immediate and actual necessity include the following:
1. Homicide. Founding or striking, committed at night, in reselling a person who is sealing or breaking down fences, walls or entrances of inhabited dwelling houses or apartments, or of their enclosed yards.
2. Acts committed in defending oneself or another against violent burglars or pilla gers.
The Penal Code did not establish the conditions for their application. The opinions of authors vary on the subject.
Articles 329 and 329 of the Penal Code make a distinction between so-called self-defense. properly speaking, and "privileged" cases, when the ordinary conditions for their application are not required.
The Code put self-defense and the defense of others on the same level.
If Article 32S is interpreted literally, self-defense is justified only in cases of homicide. mrounding or striking. Howerer, it is generally admitted that it is also justified in less serious cases.
Self-defense may be used only under certain conditions. At first an actual attack and the immediate necessity to defend oneself was necessary. The attack could be directed against personal integrity or, under certain conditions. also against property. The attack had to be unjust. On the other hand, the defense must be proportional to the attack.
Icono de la route. Paris, Journal officiel, 1967. p. 1. irode Panol Paris Dalloz. 1971-72. p. 295
3G. Stefani and G. Levasseur. Droit pénal général et criminologie. Paris, Dalloz, 1957. p. 533. See English translation in attached Appendix.