• Criminal responsibility in French law

    Criminal responsibility in French law

    • Criminal responsibility is the obligation in French law to answer for infractions committed and to suffer the punishment provided by the legislation that governs the infraction in question.

      In a democracy citizens have rights but also duties: with freedom comes responsibility.

      Unlike civil liability, the obligation to answer for damage one has caused, either by repairing it or paying damages and interest for it, criminal responsibility implies legal recourse for the state against a disturbance of the peace. This includes three major factors:

      The penal code declares that the authorship of a crime includes not just the person who commits the incriminating act, but also he who in the cases provided by the law, only attempts to commit it.

      An attempt is constituted when a beginning of execution has manifested and only was suspended or failed to have an effect because of circumstances independent of the author's will (Article 121-5)

      A person is an accomplice who knowingly offers aid or assistance to the preparation or commission of an infraction. A person is equally an accomplice a person who by gift, promise, threat order abuse of authority or of power provokes into an infraction or who gives instructions for committing it (Article 121-7)

      Article 121-4 of the penal code says that trying to commit a crime is punishable, but attempting to commit a misdemeanor is not, unless a law specifically so provides. Attempting to commit an infraction is never an offense. The author of an attempt is considered an author of the actual infraction of the penal code, and incurs the same penalties as if his attempt had succeeded.

      An attempt must manifest through the beginning of the commission of the infraction. The actor is no longer at the stage of preparatory actions, yet has not yet entirely found himself involved in the principal infraction. Jurisprudence defines the beginning of execution as the act or acts that "directly tend to the consommation of the infraction" (tendant directement à la consommation de l’infraction).

      Example: arrêt Lacour, crim. 25 October 1962: Mr Lacour paid an individual to murder the adopted son of his mistress. The hired killer pretended to kidnap the adopted son, then collected his payment before reporting Lacour to the police. Lacour was prosecuted, notably, for attempted murder.

      • participation in a criminal offense
      • forms of criminal responsibility
      • exceptions to criminal responsibility.
      • The material author of the infraction is the person who physically performs the actions necessary to make up the criminal action. In the case of a murder this would be the person who struck the fatal blow. For crimes of omission the material author would be the person who didn't move when he had the possibility to rescue someone. Under the Ancien Régime a collective responsibility was often envisaged. This concept disappeared in the codes, although jurisprudence sometimes makes use of a concept of collective guilt, but this is most apparent in conspiracy cases. (Article 450-1) Indeed, in a conspiracy each participant in the group is considered the principal author of the infraction.
      • The co-author materially participates in events at the side of the principal author, and incurs the same prescribed penalties, even if the principal author is in the end finally declared non-responsible, as in a case of dementia for example. The co-author may have extenuating circumstances such as youth. Aggravating circumstances are also possible, such as recidivism. Not to be confused with the accomplice, who would for example be the person who furnished the killer with a weapon.
      • The moral author acts in the wings to have the crime committed, for example someone who pays to have a person killed or to have an object stolen, and is sometimes also called the intellectual author. French law doesn't really have this concept and such actions are addressed as conspiracies and sometimes described as complicity by provocation or by instruction.
      • In the transition from the Napoleonic penal code of 1810 to the newer reformed criminal code, the reform commission considered including an autonomous criminal responsibility for intellectual authors but quickly abandoned the idea in the face of the difficulty of implementing such a modification of the criminal code while at the same time still preserving freedoms. However, in certain cases the moral authors may be prosecuted for the offense themselves, for instance for provocation to suicide or untruths. The untruths themselves are not criminal offences, nor is suicide. The "Perben 2" law of 2004 also created a specific infraction of instigating a crime, and sanctions the moral author of certain crimes, even when the instigation was not successful and the crime was not committed.
      • is statutory rape carried out against an adult an attempted statutory rape?
      • Planning an assassination that uses sorcery and spells, would that be attempted murder?
      • Is theft of an object that one actually owns attempted thef
      • Help or assistance: Help with the preparation or commission of the offense. This can range from standing lookout to furnishing stamps for false documents to loaning a vehicle.
      • Provocation or instigation: This behavior pushes the author of the offense to commit it, using a means foreseen by the legislation. Thus not all forms of provocation are punishable, only those carried out by:
        • gift
        • threat
        • promise
        • order
        • abuse of authority or power.
          • Also, whatever method is used must be sufficiently suggestive, individual or direct. Simple advice or suggestion cannot be penalized. And the incitement must be followed by an effect; a murder committed two years later for completely different reasons cannot be criminalized.
      • Instructions are information given to facilitate or allow commission of the offense, such as providing the floor plan of a bank building to a robber. For complicity to exist causality must be established.
      • gift
      • threat
      • promise
      • order
      • abuse of authority or power.
        • Also, whatever method is used must be sufficiently suggestive, individual or direct. Simple advice or suggestion cannot be penalized. And the incitement must be followed by an effect; a murder committed two years later for completely different reasons cannot be criminalized.
      • Also, whatever method is used must be sufficiently suggestive, individual or direct. Simple advice or suggestion cannot be penalized. And the incitement must be followed by an effect; a murder committed two years later for completely different reasons cannot be criminalized.
      • passive assent
      • complicity after the fact
      • The primary action must be a criminal offense: thus one cannot be prosecuted for having helped in the commission of an act which is not an infraction. The case of provocation to suicide mentioned above is an infraction in itself, although suicide itself is not.
      • In the old penal code the infraction must have had a certain severity (at least have been a misdemeanor) but under the new code it is possible to be an accomplice to a merely citable offense.
      • The principal act must have been committed: an accomplice who organizes everything but whose principal author does not begin execution cannot be prosecuted. The infracrtion must at least have been attempted. If a fact may justify the infraction—legitimate defense for example—the infraction is erased and that of the accomplice as well. In cases of immunity, or theft between spouses, the accomplice cannot be prosecuted, unless the judge determines that the person presented as an accomplice is in fact a co-author, in which case he is still within reach of prosecution.
      • According to article 121-1 of the new penal code, "none are penally responsible for any but their own actions." (Nul n'est responsable pénalement que de son propre fait.) In the old code this rule existed only in case law. One exception exists, the actions committed by a person under the authority of another. In this precise case, the person with authority can be found guilty of the actions committed by the person under his authority. Such would be the head of a company when an employee causes an accident while making a delivery for the enterprise. He can escape this responsibility by proving a prior delegation of authority, in which case the holder of the authority will be responsible.
      • Minor of 10 without discernment: absolute penal non-responsibility
      • Minor of 13 with discernment (sole discretion of the judge, 8 years on average): incurs "infliction of educational measures". A distinction must be made between children younger than 10 and those aged 10–13 subject to educational sanctions, controversial measures since they sit at the border between penalty and education.
      • Minor aged 13 to 16: Beyond educational measures the legal system tends to consider their responsibility attenuated and they incur only half of the common-law penalty, which cannot exceed 20 years of incarceration. and 7,500 in fines.
      • Minor aged 16 to 18: also has the benefit of the excuse of minority, but it can in principle be withdrawn in cases of a second repeat offense of specific offenses, or when "the circumstances of the case and the personality of the minor warrant this" ("lorsque les circonstances de l'espèce et la personnalité du mineur le justifient").
      • authorisation of the law, or order from a legitimate authority (article 122-4
      • legitimate defense (articles 122-5 et 122-6 )
      • state of necessity (article 122-7).
      • an unjust attack against oneself, others, or an asset. The unjust nature of the attack notably excludes legitimate violence like a policeman trying to protect the public order, or licit behaviours like confisating GMO corn.
      • A concurrent attack, in other words, fighting back at the time of the attack. It is impossible to avail oneself of a legitimate defense argument for an act of vengeance, for example where a victim fires at an aggressor who is already running away. On the other hand, a defense prepared in advance (setting traps, electric fences) is valid as long as the defensive measures do not execute until there is an actual attack.
      • necessary retaliation: in other words, to counter the attack, commission of an illicit act is necessary; there is no legal alternative to the retaliation.
      • a response proportionate to the attack: the value sacrificed must be less than the value protected; the reply must engender a lower social cost than if the attack had been carried out.
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    • Criminal responsibility in French law