Themiclesian penal law
The Themiclesian penal law (律, rjut) is a criminal law that stipulates definitions and punishments for crimes against the public peace in Themiclesia. Themiclesia adheres to the principle of nulla poena sine lege in criminal law, though precedents are still used to determine the scope of each offence and as guides on sentencing, and requires proof of guilt beyond a reasonable doubt before conviction. The defendant in the criminal process is presumed innocent before final conviction and possesses a range of rights and defences against liability. Themiclesia, having abolished capital punishment, imposes imprisonment and fines as its primary types punishments; the law further provides confiscation, detention, and issuance of public apologies as processes wrongfully acquired property or minor offences. The judicial process requires the unanimous assent of a jury of the defendant's peers for conviction, a measure introduced in 1861.
History
The Themiclesian penal code originated at the latest during the 3rd century, when the unified Tsjins Dynasty promulgated the T'aih-srje Penal Code in 268; successive dynasties generally inherited this code, though extensive modifications have been made through the ages. The code was re-issued several times and given new names, though its main content has remained unchanged. Several provisions of the original code remain in effect.
Organization
The Penal Code is organized into 20 volumes, and each volume is organized into articles that deal with a single topic. There is no particular order in which the articles are arranged, though they are numbered for ease of reference.
| Shinasthana | Literal meaning | Contents | |
|---|---|---|---|
| 具 | gjo' | form | Definitions and criminal process |
| 盜 | dawh | larceny | Non-violent personal crimes |
| 賊 | dzek | vagabond | Violent personal crimes, crimes against the government |
| 囚 | lju | prisoner | Treatment of prisoners |
| 捕 | bas | arrest | Conduct of arrests and searches |
| 雜 | dzep | assorted | Miscellaneous |
| 戶 | ga | household | Household records and census |
| 興 | hjeng | rise | Military crimes |
| 詐偽 | tsras-gwrjars | deceive | Various financial crimes |
| 毀 | hwrjer | destroy | Crimes against public and private property |
| 亡 | mjang | abscond | Abscondment and concealment |
| 告劾 | kus-gre | allegations | Investigation of allegations |
| 繫訊 | kis-sjins | interrogate | Interrogation of prisoners |
| 斷獄 | tuans-ngjok | adjudicate | Errors in adjudication |
| 請賕 | tsjing'-gju | bribery | Official bribery |
| 法例 | pjap-rjais | precedent | Employment of precedent in criminal law |
| 衛官 | gwrjaih-kwan | palace defence | Defence of the palaces |
| 水火 | sljui-hwer | water, fire | Natural disasters |
| 關市 | kwran-dji | passes, markets | Markets, roads, and ports |
| 違制 | gwrjei-tsjais | disobedience | Certain cases of disobedience against valid instructions |
| 諸侯 | tja-go | nobles | Conduct and special obligations of hereditary nobility |
Definitions
Time, place, and person applicable
The Volume of Forms (具律, gjo'-rjut) contains general stipulations as to the applicability of the Penal Code as to the time, place, and person implicated (§1, §3~5). As given, the Penal Code is applicable across all of Themiclesia, extraterritorialities granted to Themiclesia, and Themiclesian nationals abroad. While not explicitly mentioned, other legislation provides that extraterritorialities granted by Themiclesia to foreign states are excluded from the operation of the Penal Code.
In theory, it is also applicable to foreigners in Themiclesia, but later provisions largely exclude this. Foreigners, whether accredited or not, possess the right to appeal to their home governments for extradition and, failing that, to face the less severe of the laws between their home state and Themiclesia. For example, if a crime has a maximal sentence of three years in prison in Themiclesia but only two in the offender's home state, Themiclesian courts are bound by the Penal Code to observe the maximum stipulated in the foreigner's home state. If the law in the offender's home state provides more severe penalties or those not practiced in Themiclesia, the offender is entitled to be sentenced under domestic laws.
Forms prohibits the retroactive application of laws (§62). Provided by the same article, previous convictions may also be overturned if the law under which they were made is no longer in force; this is, however, not an automatic process and is only considered upon request. The opposite process is not possible, as laws are either in force or completely non-existent, there not being anything such as a dormant law that retains its identity while not in operation.
Components of crimes
The volume contains definitions for various states of mind during the commission of a crime. All crimes enumerated are to be interpreted as exclusively intentional (§51), unless stated otherwise. Omission (失) and unintentional (誤) are each given their definitions in the same volume. An omission is considered a crime where the perpetrator has knowledge of the act, but not of the legal consequence. For example, if a civilian is dressed in an enemy state's military uniform in active combat, and a Themiclesian soldier proceeds to shoot said civilian, the soldier would have committed murder by omission, since he has intentionally shot the civilian. Conversely, an unintentional crime is committed when the perpetrator is not aware of his act but ought to be. For example, if a road builder leaves an incomplete bridge open to traffic, and subsequently someone passes over it and falls to his death, then the builder would be guilty of an unintentional crime.
Defences to liability
Minority and senility
Under Themiclesian penal law, children under the age of seven and the elderly over the age of 90 are exempt from all criminal liability. Minors aged between 8 and 20 and the elderly between the age of 70 and 89 are subject to limited criminal liability. The Penal Code states the purpose of which is to show lenience to the feeble. Further, in the same spirit of §62, the defence of minority, complete or partial, is applicable even after the age of partial liability or majority has been reached; the defence of senility does, however, apply retroactively to crimes committed while not yet senile.
Insanity
The defence of insanity (§23) is an absolute defence against liability, though, once pled, the court may order the defendant to be committed to an asylum until it is satisfied the patient has regained sanity. While the defence of insanity is only valid if the defendant was insane at the point of committing the crime, other provisions (§28, §30) prohibit, amongst others classes of persons, the legally insane from answering at trial and therefore being convicted. In order to establish the defence of insanity, it is generally agreed the defendant must have lost consciousness of the significance of his actions. As a lesser version of the insanity defence, psychological impairment is also valid, though depending on the severity of the impediment, the court may choose to waive part or all of criminal liability. The defence of psychological impairment can be established on such factors as narcotics, drunknenness, and mental health issues.
Duress
The defence of duress is recognized if a crime was committed when the perpetrator is under an equal or greater threat to his person. In order of gravity, the duress on the perpetrator's life is sufficient to defend against the liability of those of others and of the physical completeness, liberty, and property of others. Notably, the defence of duress is acceptable even if the number of lives lost is greater than those under duress, as this is legally conceived as a sequence of crimes committed under duress. In order to establish this defence, the threat must be reasonable and imminent, in addition to being greater or equal to the legal interests infringed. A reasonable one is one that the average man, under the same circumstances, would believe as actual; an imminent threat is one that is immediate and cannot be averted by any available means that causes any lesser damage to the interests of others.
Official action
The defence of official action is available to any act done under the law that would otherwise constitute a liable act under the penal law. For example, the legal defence of a gaoler confining a convicted prisoner in his cell is that of official action, as otherwise it would constitute a breach of the prisoner's liberty. This defence is specific to an officer legally permitted to carry out official actions: if a passer-by confine a prisoner into his cell, the passer-by cannot maintain the defence of official action. The defence of official action is also conditional upon a correct interpretation of the law that authorizes the official act. For example, if a gaoler mistakes a prisoner that is not under his charge and confines him, the gaoler still cannot maintain this defence.
Instruction
The applicability of this defence to actions taken under the instructions of a hierarchical superior is limited. Historically, officers before the court (朝廷命官, hnrjaw-ding-mrjang-kwan), that is holding the Ninth Rank or above, cannot claim the defence of instruction if the substance of it is illegal. Between 1813 and 1938, military officers above the rank of Colonel in the Army (or Commodore in the Navy and Air Force) are precluded from this defence, it being argued their high standing to imply a natural obligation to have an adequate understanding of the law, thus to exclude them from the defence of instruction, should the act and any of its foreseeable results prove illegal. In the following year, this rule was replaced by a less absolute assignment of responsibility that is now found in the penal codes of the defence forces.
Autrefois convict, acquit, and pardon
Under §31, a crime can be tried and punished only once. A previous acquittal or conviction is sufficient defence to liability. A previous pardon is of the same effect.
Relations
As Themiclesian law recognizes family relations as a factor in determining the criminality of certain acts and appropriate procedures for their prosecution and punishment, the Penal Code provides the definitions for family relationship. Family relationships encompass three separate principle, common descent, marriage, and progeny. Under the principle of common descent, all individuals descended from any of the person's ancestors within four generations, i.e. descended from one's great-great-grandparents, are legally related to oneself. The law does not distinguish between the maternal or paternal lines. Under the principle of marriage, anyone related by common descent to one's spouse is also related to onself. Under the principle of progeny, any offspring by one's body or by adoption, within seven generations, is likewise related to oneself.