Victim-perpetrator reconciliation in the criminal law of continental law system

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A central issue of article is to conduct the comprehensive and theoretic research on the legal regulation of victim-perpetrator reconciliation in different countries. It is crucially important due to its practical value for not only legislative activity, but also for law application.

The major task of the article is to characterize the institute of the reconciliation between the perpetrator and the victim in criminal legislation of continental law system, and to define its role in the process of the legal regulation. For the basis of research we used the current law of criminal procedure, constitutional, criminal and substantive laws along with the civil legislation of France, Germany, Poland and Russia.

Key words: victim, perpetrator, reconciliation, petty crime, harm, mediator, liability, sanity.

The victim-perpetrator reconciliation is an agreement between the person, who has committed a crime and the injured person who has reconciled to his/her offender. This document also states that the victim is contented with the implemented measures to make amends and to eliminate the caused harms, and does not object to discharge the accused from criminal liability.

According to the Criminal Code of Ukraine there are 3 items of subject composition:

1) the perpetrator (physical person, has the sanity and has reached an age of criminal liability);

2) the private victim and

3) the state that is the court of competent jurisdiction.

However, besides these three elements of subject composition, criminal legislation of some other states provide another participant – mediator (the person, who helps the parties reach an agreement).

Some peculiarities:

There is no criterion of sanity in German Criminal Code;

According to the Criminal Code of France the legal person may be perpetrator, 2(two) terms of these:

–         crime is committed for the benefit of entity;

–         crime is committed y the owner of this legal person.

In the article 46 of the Criminal Code of Ukraine there are stated the terms of criminal liability exemption from some crimes due to the reconciliation between the perpetrator and the victim. In accordance with the current law these terms are:

–         petty crime;

–         perpetration of crime for the first time;

–         reconciliation with the victim;

–         making amends and/or eliminating the caused harms as a result of injurious to society acting(Article 77 of the Criminal Code of Russia provides the same)

Pursuant to the Criminal Code of Poland there are such terms of reconciliation:

–         reconciliation with the victim;

–         making amends and/or eliminating the caused harms as a result of injurious to society acting;

–         if the punishment for the offense does not exceed 5 years in prison.

Article 41 Criminal Code of France:

–         reconciliation with the victim;

–         making amends and/or eliminating the caused harms as a result of injurious to society acting.

Pursuant to the germen legislation there are such terms of mediation:

–         compensation;

–         other actions in favor of the victim.

Reconciliation (or mediation according to the legislation of continental law system countries) involves four basic steps:

–         information exchange between the prosecutor and association, analysis of conflict and previous work with the parties;

–         directly reconciliation;

–         closing the case and it’s evaluation;

–         official report of the reconciliation procedure and it’s result.

Fact of reconciliation between the parties can act as:

–         circumstances are taken into account in sentence;

–         ground for exemption from criminal liability or punishment;

–         special ground for exemption from criminal liability or punishment, which is envisaged by article of the Criminal Code.

So, the victim-perpetrator reconciliation is one of the alternative way to solve the criminal cases in Ukraine and all over the world, without punishment.

 

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