Publication details
Případ, trestný čin, společenská škodlivost a vina v trestním právu (o zásadě subsidiarity trestní represe trochu jinak)
| Title in English | Case, Crime, Social Harmfulness and Guilt in Criminal Law (About the Subsidiarity Principle of Criminal Repression a Little Differently) |
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| Authors | |
| Year of publication | 2015 |
| Type | Article in Periodical |
| Magazine / Source | Právník: teoretický časopis pro otázky státu a práva |
| MU Faculty or unit | |
| Citation | |
| web | Repozitář MU |
| Field | Law sciences |
| Keywords | socially harmful „case“; formal-material concept and conception of criminal act; criminal law as ultima ratio; subsidiarity of criminal repression |
| Attached files | |
| Description | To date and present formal-material concept and conception of the criminal act, from the guilt point of view, is not a distinctive change determining the character of the new codification of the criminal law. Particularly the formal-material conception was possible to apply according to the criminal code 1961 and also according to the criminal code 2009. The so called "socially harmful case" cannot be the only basis of criminal responsibility but the case of the „criminal act“ so much socially harmful, when the application of another type of the legal responsibility is not sufficient. Social harmfulness of the act, as the material side of the criminal act, must be judged, in concreto, from the guilt point of view, strictly only within the limits of the applied actus reus (body of the crime). The character and the seriousness of the act, as the material side of the criminal act, must be judged, in concreto, by the penalty not only within the limits of the applied actus reus (body of the crime), according to the intensity of the features, but also with regard to all other circumstances of the particular case. The content of the legal clause number II. in the statement of the Supreme Court Tpjn 301/2012 (R 26/2013) must be interpretated and applied in the context of the legal clause number I. This is a condition of the way of interpretation and practical use of this statement, which consistently differentiates between the functions of the crime and its material side from the guilt and penalty point of view. This way of interpretation and application of the statement is conformable to the Constitution, no other interpretation is possible. The Judicature of the Supereme Court is not unified when applying this statement from the given points of view. |