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THEORETICAL AND PRACTICAL QUEST= IONS OF THE STUDY OF CRIMINAL ACTORSHIP AND COMPLICITY
– SUMMARY = OF RESEARCH TASK –
Monographic surv= eys of questions related to delinquents of crimes were provided in the end of the nineteenth century by Gyula Wlassics [Wlassich (1885) and (1893)] and in the middle of the twentieth by István Losonczy [Losonczy (1961) and (196= 6)]. In the recent past, several essays and studies dealt with delinquents (as w= ith other questions of criminal law). These mostly concerned the problematics of indirect involvement in crimes, the possibility of its legal sanctioning, a= nd the particulars of such sanctioning [Lőrinczy (1981), Sántha (2000), Szomora (2002)]. Not since 1966, however, has a full-scale summary = work on delinquency and complicity been published.
Students of crim= inal law were keenly interested in questions of crime delinquents in nearly all historical periods. As long as the crime is committed by the activity of one person, no special problems appear; but as soon as more persons are involve= d in the commitment of a crime, se= veral dilemmas present themselves. Such a dilemma is the determining of the relat= ive weight of the roles of each person in the commitment of the crime; that is, which of them can be taken as the principal, and which of them as the accessory. For centuries, this considerably important field of criminal law= was shaped by a number of theoretical debates and arguments; it is, however, st= ill doubtless that the theories concerning delinquents are one of the most thor= ny fields of criminal law [Chauveau – Hélie (1887)].= span>
Both abroad and =
The study, after= an overview of the basic principles of legal theory and crime studies which se= rve as a theoretical framework (Part I), we will survey the roles, effectual de lege lata, of the delinquency formations recognized and regulated by law (P= art II). This (general) part intends to offer solutions to numerous practical problems, in addition to being a theoretically systematized framework. The emphasis will be on the characteristics of complicity and its problems, sin= ce much more problems arise concerning this sphere of delinquency. The special= ized part (Part III) of the study aims at uncovering the problematic areas of bo= th the theory of criminal law (academic considerations) and legal practice, an= d at finding theoretically based guiding directions for further work on delinque= nts. One part of the highlighted problems is mostly theoretical, but can easily = have practical relevance in some circumstances. Such are, for example, the problematics of the incidentality of complicity (and connected to this, of indirect complicity), the evaluation of actio libera in causa or the action= s of a so-called agent provocateur, or the consideration of personal circumstanc= es. Another part of the questions examined here was pointed out by practical difficulties: such are the possibility of complicity in crimes strictly of mixed culpability, or the practical issues connected to indirect involvemen= t. The results of the specialized part, therefore, might prove useful also in legal practice.
After the theore= tical framework, the survey of regulations in effect, and the outlining of problematic areas, the study closes with the description of a conception for regulation (Part IV), which could be used to some profit even in the presen= tly ongoing codification process of the Criminal Code.
1. THE METHODS APPLIED
The study attemp= ts to make use of a type of system theory, claiming that the validity of any assertion can only be unambiguously predicated within a given system. The questioning of any such assertions, therefore, will involve the laying bare= of possible contradictions in the system grounding it. The framework of this s= tudy is determined by a system of legal theory (from the philosophy of law) on t= he one hand, and a system of criminal studies (the concept of the crime) on the other.
The primary natu= re of the sources used needs to be emphasized; relatively few cases made the reco= urse to secondary interpretation necessary. It is important to underline this, because due to the fact that the last 40 years saw no full-scale monographic work on the subject, the sources of the study are mostly textbooks and stud= ies on criminal law from the end of the nineteenth century or the beginning of = the twentieth century. The most significant works of nineteenth-century French [Chauveau Adolphe – Faustin Hélie: Théorie du Code pénal (1887)] and Italian [Francesco Carrara: The Programme of Crimi= nal Law (1878)] scholars have also been taken into account. The consideration of such older sources does not, however, affect the study’s own point of view: there are numerous overlaps between criminal codes of the nineteenth = and twenty-first centuries in respect of the roles legal study and practice attributes to delinquents. Instigation, for example, has always been define= d as making another person commit a crime, and the definition of instigation has also been practically the same. The concept of indirect actorship was as familiar in the last century as it is today. This, naturally, does not mean that the processes of legal politics or the social changes of the recent decades are ignored.
After this short description of the methodology employed in this study, it is necessary to mention briefly two applied methods. The results of the study have emerged, first, by the application of the method of concept analysis, and sec= ond, by deduction from contrasting opposing views.
2. THE RESULTS OF THE RESEARCH AND THEIR POSSIBLE USES= p>
2.1. THE FRAMEWORK OF LEGAL = THEORY
A certain mediat= ing attitude determines the basis of this study concerning the framework of leg= al theory, connected to the definition of the origins and validity of (crimina= l) law and following the survey of systems of natural and positive law. Conson= ant with the concept of the rule of law, the existence of a system of laws, cle= ar, available to everyone, and codified by the state, can be made a requirement (cf. the principles of legal security and nullum crimen sine lege scripta).= One cannot, at the same time, ignore the material implications of the rule of l= aw: therefore, certain values which, if not individually, at least taken together, can influence the validity of the law, must be operational= in the concept of criminal law. Such values are freedom (freedom of will and action), morality and justice. These categories may sometimes (to the advan= tage of the delinquent) supersede formal legal regulations: a case in point is t= he causes excluding illegality and guiltiness over the law (see e.g. the contradiction of obligations excluding illegality, or the lack of expectati= ons excluding guiltiness). Among the values connected to the validity of law and which are to the disadvantage of delinquents, objective injustice has to be stressed; this, in this exceptional and narrow case, might be used to quest= ion the validity of positive law (cf. G. Radbruch’s formula, 1946). This study will maintain the stance that in cases when the principle of justice would require the handling of an action in the context of criminal law, but formal legal regulations are unavailable, it is not a valid practice to ‘create’ judicial or custom law to the disadvantage of the delinquent. Consequently, the practical application of the construction of indirect actorship can be a constitutionally questionable practice.
2.2. FRAMEWORKS OF CRIME STU= DIES
The basis of the= system theory referred to above is in this study provided by the definition of the= concept of crime. The concept of crime used here emerged after the survey of the conceptual models in the two opposing continental legal systems. In this definition, its universality was one of the points which were aimed at: I intended to form a definition which is not opposed to the de lege lata legal concept of crime, but contains the most important conceptual elements even = in the case of the formalization of the legal concept. I paid particular atten= tion to the clear separation of objective and subjective elements in the concept, and to include all necessary elements. However, each element appears only o= nce in the definition.
In the study, I consequently differentiate between the concepts of crime and indictable offence. A crime, in the context in this study, is an indictable off= ence whose delinquent is guilty; a crime therefore includes an indictable offenc= e, but is more than that. The elements of indictable offence are the objective (reduced) elements (disposition) and its going against (criminal) law. The notions of intention and negligence are accordingly referred to the sphere of the question of the delinquent’s guilt. The guiltiness of the delinquents is a complex concept in the system, and contains the subjective requirements for material legal responsibility necessitated by t= he indictable offence committed by the delinquent.
2.3. THE DEFINTION OF THE CO= NCEPT OF DELINQUENT
The study treats the definition of the concept of delinquents in a separate par= t. In the course of this, the basic question is the outlining of the general concepts of principal and accomplice: for the following discussion, we need such general definitions of the concepts of principal and accomplice that c= an be used in the current Hungarian practice of criminal law. The criteria to = be kept in mind are to include in these concepts the common characteristics of= all species of the given delinquency formation, and to take care that all eleme= nts of the concept should be fully valid for all legally recognized formations.= All this considered, according to the general concept of criminal actorship = principals are persons whose actions fulfill the conceptual criteria of a crime (these actions realize objective elements the legal regulations classify as elemen= ts of criminal actions), and in their person show the objective qualifications= for being committers. In the sense of the general concept of complicity,= an accomplice is a person taking part intentionally and indirectly in an intentionally committed criminal action in such a way that their actual act= ion does not realize the objective elements of a crime. In other words, complic= ity is the contribution of a person in an intentionally committed crime, which contribution is indirect, intentional, and is outside the legally defined objective elements of the crime.
These definitions highlight that in Hungarian criminal law there is a class of delinquents which does not in fact come under either the concept of actorsh= ip or that of complicity. Such persons are the performers of preparations to a crime, who can neither be considered a committer (contributes outside the legally defined objective elements) nor an accomplice (due to the lack of t= he elements of complicity). The general concepts of actorship and complicity a= lso do not include persons who, although their actions fulfill criteria of objective or indirect elements, do not actually satisfy the conceptual requirements of the crime (underage or insane mental state), or the so-call= ed agent provocateur, who, due to certain dogmatical problems, can also not be considered as either a perpetrator or an accomplice. These persons can be t= aken as delinquents, but cannot come under the concepts of either actorship or complicity: that is to say, the term ‘delinquency’ refers to a wider category, and also includes the persons realizing indictable offences= .
2.4. THE PRINCIPLE OF IN DUB= IO MITIUS
fields in criminal law still await solutions not supplied by the directions
offered in positively codified legal regulations. Legal practitioners, howe=
have to find ways to deal with and evaluate relations not fully clarified, =
in special cases have to decide between legal assertions apparently
contradicting each other. The principle of in dubio mitius works to resolve
such situations. This principle is connected to the category of justice.
Connected to the association of justice and legal security, we earlier stat=
that the so-called causes excluding responsibility over the law can be appe=
to for the advantage of delinquents. But the responsibility of delinquents
cannot be grounded by the necessity required by justice, if exact legal
regulations do not apply. Justice can enter the considerations if a given
action comes under the scope of a positively codified legal regulation, but
this regulation is ambiguous, or if the evaluation of an action can come un=
more than one regulations the application of which yields different results.
The principle of in dubio mitius works in these cases to ensure, on the bas=
of justice, the interpretation or decision which serves the advantage of the
delinquent. The principle thus functions when the principle of nullum crimen
sine lege certa is violated, and essentially codifies the requirement of the
more advantageous interpretation or the prohibition of the less advantageous
interpretation for the delinquent in the case of legal uncertainties. <=
2.5. THE QUESTION OF PERSONAL CIRCUMSTANCES
The problematics of personal circumstances is one of the most wexed in criminal law. In this field, we inquire whether and to what extent a characteristic = or circumstance belonging to one of the persons (victim, principal, or accompl= ice) involved in a crime influences the criminal responsibility of extraneous delinquents. A personal circumstance is a characteristic feature inherent in and inseparable from the person, or the relationships the person holds towa= rds other persons or object.
Before Act IV of= 1978 On the Criminal Code, all criminal acts contained provisions for the issues connected with the responsibility for personal circumstances. Despite this,= no real consensus has been created about the effects of such circumstances, signaled by the fact that Pál Angyal, perhaps the best-known scholar of criminal law at the beginning of the twentieth century, specially devoted a discussion to the divisibility of individual personal circumstanc= es [Angyal (1902)]. The currently effective Criminal Code did not adapt the regulation on the responsibility for personal circumstances, and among curr= ent scholars in criminal law, only József Földvári remarks that all aggravating or mitigating circumstances evaluated by law c= an only qualify the actions of those delinquents to whom the circumstances actually belong [Földvári (2002)]. For all these reasons, a more in-depth study of personal circumstances is necessary, in which certain bas= ic principles of criminal law can be appealed to (such as the principle of responsibility founded on individual guilt, the principle of individual responsibility for actions, and the principle of in dubio mitius, referred = to above); but a valid examination has to take into account which of the perso= ns involved in the crime (victim, principal, or accomplice) the circumstance belongs to; what is the level of objectivity on which the circumstance is (= an element of the basic case, or an aggravating/mitigating circumstance); and = what is the legal nature of the circumstance (a reason for excluding illegality = or guilt, or secondary indictment obstacle).
Concerning perso= nal circumstances connected to victims, we can say that if such a circumstance is part of the basic objective elements of the crime (as in se= ction I, paragraph 201 § (1) of defloration), the crime is not realized in t= he absence of the circumstance: the personal circumstance of the victim influe= nces the responsibility of both the principal and the accomplice. If the victim’s personal circumstance forms a qualifying circumstance, the intention of the delinquents of the crime needs to include the awareness of this aggravating circumstance, in order to become responsible.= span>
Concerning perso= nal circumstances connected to delinquents, what we have to set down is = that these affect the legal responsibility of persons to whom they belong. The o= nly exceptions are special cases of the so-called delictum proprium, whe= re the criminal action itself is not realized without the personal circumstanc= e. In these cases, the very existence of the personal circumstances of the delinquent grounds the responsibility of the accomplice (e.g. in the case of incest).
in delictum proprium, based on the fact that this delinquency formation
also falls under the scope of the general concept of actorship, I have
concluded that the accomplice in a delictum proprium can only be a person w=
has the personal qualifications to be a committer. Consequently, a personal
circumstance of one delinquent does not ground the responsibility of anothe=
a delictum proprium. One remaining problem is the case of a delinquent who
performs the action of the delictum proprium, together with an accomplice w=
has the necessary personal qualifications, but himself does not show the
necessary features of actorship. Whether such a person is the accomplice of=
delictum proprium, or the individual committer of the corresponding crime, =
highly problematic point; based on the concept of assistance, the survey of
legal objectives, and the principle of in dubio mitius, referred to above, I
would argue for the latter. Consequently, an accomplice who contributes to =
delictum proprium only outside of its objective elements can, in my
interpretation (based on the examination of legal objectives, the indirectn=
of complicity, the requirement of justice, and a certain logical necessity),
only be legally responsible for the ordinary crime (delictum commune). =
In treating the influence of the personal circumstances relating to the accomplice, = my basic starting point was the rule of the incidentality of complicity. The responsibility of the accomplice presupposes the action of the committer to have taken place, an action that at the same time constitutes an intentional crime. The responsibility of the accomplice, therefore, is connected to the= principal’s action, and not the principal’s person. Consequently, the personal circumstances related to the committer do not influence the accomplice̵= 7;s responsibility (except in cases when these circumstances define the committer’s action as indictable, that is, in the special cases of the delictum proprium). My final conclusion in the matter is that the personal circumstances of the accomplice do not influence the responsibility of the = principal, but they can modify the responsibility of the accomplice.=
The summary conc= lusion of this part of the study is that personal circumstances belonging to one of the delinquents, determining how the given action is qualified in the categories of criminal law or the culpability of the delinquent, can be tak= en into account only in the case of the person to whom it belongs. The excepti= ons are another special class of delictum proprium, where accomplices are responsible for the committers’ actions even in the lack of personal circumstances.
2.6. THE INCIDENTALITY OF CO= MPLICITY
In current Hungarian criminal law, it is a generally accepted thesis that complicity is an incidental form of responsibility. By ‘incidentality’ we mean that these delinquency formations (where the delinquent is not alone; here the person who carries out preparations to the crime is not considered) do not produce independent criminal responsibility, but require a criminal action to do so. In this sense, incidental delinquency formations are instigation, assistance, and co-actor= ship. The difference between the incidentality of complicity and co-actorship lie= s in the detail that while the complicity responsibility of the instigato= r or the accessory depends on the committer’s action, the principal responsibility of a co-principal (being basically a principal) is independe= nt of the action of the other principal(s)—in this case, the co-principa= l is judged as a(n independent) committer even in the lack of criminal action on= the other person’s part (if the other committer is underage or in an insa= ne mental state). Thus, while co-principals are punishable independently of ea= ch other, accomplices receive the culpability of their actions from the evalua= tion of the committer’s action.
In the Hungarian (and German) legal system, it is customary to use the system worked out by Max Ernst Mayer to typify the incidentality of complic= ity. In this system, the incidentality of complicity can fall into four categori= es. The principle of the so-called minimal incindentality only requires = that the committer’s action be a legal fact of a crime; limited inc= identality adds that the action should be illegal, while for full incidentality, the person’s guiltiness is also required. According to the principle = of hyper-incidentality, the accomplice is also affected by the evaluation of the committer’s action. This certainly seems to be a simple typology. But taking into accou= nt that (1) legal facts and guiltiness are concepts which can have different meanings in different systems, that (2) not even one school of criminal law= can be said to be relying on only one rule of incidentality, and finally that (= 3) there are systems of incidentality which cannot be integrated with Meyer’s categories, I do not consider this model of typology; instead= , I think it is more important to define the upper and lower limits of the inci= dentality of complicity.
The lower limit of the incidentality of complicity means those features which indubitably have to be realized for complicity to happen. The first of these is the definition of the applicable (criminal) action. In connection with this, the important point is that delinquency formations ca= n directly belong to a committer’s action; in certain cases, also to an accomplice’s action, but in these cases they have to be indirectly= connected to the principal’s action. In the case of indirect complici= ty, it is the committer’s action which makes the chain of indirect accomplices punishable. This is related to the supposition, mentioned above, that complicity is connected to an applicable (criminal) action, and= not a person. Related to the action, two further requirements can be examined: the action has to be an intentional crime, and the committ= er has to take this action at least to the attempted stage. No delinque= ncy formation can be connected to preparatory actions; such actions have to be = judged as preparations. Consequently, the responsibility of complicity is an in= cidental form of responsibility concerning its punishability.
The higher limit of incidentality refers to the demarcation lines above which requirements of consequences fall outside the sphere of the accomplice’s responsibility. Related to this, it has to be said that = the responsibility of the accomplice is not influenced by the committer’s= modification (when the committer commits the action not in the way intended by the accom= plice—in the final analysis, a different crime is committed, but one that is not more serious than the one intended by the accomplice) or the committer’s <= i>excess action (excessus or excessus mandati). In the course of the examination= of personal circumstances, we have concluded that the accomplice is not responsible for the personal circumstances of the committer, except for some special cases of delictum proprium (where a criminal action is realized wit= hout the personal circumstances). Above and over this, the actual punishabili= ty of the committer is not a prerequisite of the realization of complicity. Consequently, the fact that the punishability of the accomplice’s act= ion is derived from the principal’s action does not mean that the evaluat= ion of the accomplice’s action is necessarily determined by the principal= ’s action. The responsibility of= the accomplice can freely be influenced, independently of the committer’s= , by the scope of intentions, or the personal circumstances belonging to the accomplice. While complicity is objectively (that is, concerning its punishability) incidental, it is an independent form of responsibility <= /i>if considered subjectively, concerning the extent and level of responsibility. But the subjective features mentioned above remain outside = the rules or pre-requirements of incidentality.
2.7. DELINQUENCY FORMATIONS = AND CRIMES OF NEGLIGENCE
instigation, and assistance are basically doubly intentional delinquency
formations. Despite this, their relation to crimes of negligence can profit=
be examined. Both practical and theoretical cases requiring clarification c=
our attention to this. From among the three spheres of cases that become
relevant here (crimes of mixed culpability, cases of the so-called action l=
in causa, and the criminal responsibility of the so-called agent provocateu=
I will briefly discuss here the case of crimes of mixed culpability. =
A crime is of mixed culpability if some objective elements of the crim= inal action come under the intention of the committer, while some others under t= he scope of negligence. In this group, there are crimes which can potential= ly be committed with mixed culpability, and others which, according to definition= s of crime studies, can only be committed thus (crimes of strictly mix= ed culpability).
It can be taken = as a general axiom that if mixed culpability arises concerning the basic bear= ings of the case, the crime is to be considered a crime of negligence. In th= ese cases, co-actorship and complicity are excluded. In cases when mixed culpability is realized in the basic case, that is, if the action of the delinquent is determined by intention while the result by negligence, the contribution of another person is ontologically conceivable. Legally, howev= er, a person who participates in the intentional part of such a crime of mixed culpability, and whose negligence can even be established in the result, de lege lata cannot be made responsible. If a passenger of a car makes the dri= ver disregard the (red) traffic light and drive through a junction, thereby cau= sing an accident, it would seem justified (based on the general causal relations= hips of contributions to crimes, and the intentional instigation to criminal act= ion) to hold responsible the person (the passenger) who had an essential part in= the causing of the result.
If mixed culpabi= lity arises concerning the aggravating circumstances (if the bearings of = the case come under the delinquent’s intention, while the qualifying resu= lt under negligence), I (contrary to the general practice of the Supreme Court= ) do not think that either co-actorship or complicity can be established. The responsibility of these delinquents cannot be grounded by the facts that bo= th committers and accomplices are likewise delinquents, and that §= 15 of the Criminal Code makes the more serious legal consequence for the de= linquent dependent on negligence. Both delinquency formations referred to can only be realized de lege lata intentionally, and in an intentional crime. Crimes of mixed culpability including qualifying results cannot by definition be take= n as intentional crimes. The appropriateness of the requirement that persons contributing to more serious results, in some cases the ‘startersR= 17; of crimes, consciously able to comprehend the possibility that such more serious results can happen, should be included in the responsibility of such actions, is unquestioned, and a sense of justice is certainly also attached; but the grounding legal codification cannot be substituted for by the justi= fied nature of the requirement. What this means is that de lege ferenda legal regulations should ensure the possibility to hold such co-principals and accomplices legally responsible.
2.8. INDIRECT ACTORSHIP AND = ITS QUESTIONS
As in other legal systems, indirect actorship is a known and applied delinquen= cy category of Hungarian criminal law. This delinquency formation is, however,= not unproblematic concerning its concept, characteristics, and legal foundation= . It legal foundation is questionable, because the definition of actorshi= p in the Criminal Code actually does not apply for the indirect committer: actor= ship is based on the realization of the objective elements of the crime as set d= own in the law, while the indirect committer basically contributes to the indictable offence (in exceptional cases, criminal action) of the other per= son by behavior falling outside the scope of these objective elements. Theor= etically, such delinquents are also hard to see as principals, since indirect committ= ers are not necessarily required to have the personal qualifications which defi= ne actorship. Consequently, indirect committers cannot in fact be considered a= s principals; it might be more appropriate to see them as indirect delinquents (th= is does not apply to cases of instigation and in the group of direct accessori= es, since these are named categories). But the definition of the concept of the indirect delinquent (indirect committer) is not without its difficulties either: generally, we understand by this term the person who uses other person(s) as instruments for the commitment of a crime. Some sources take a= s an element of the definition that the person used cannot (or at least in relat= ion to the given crime) be held legally responsible. But to concede this would result in a legal loophole, e.g. if the mistake of the person used derives = from negligence, since actions of negligence are punishable by law. In this stud= y, I have defined the requirements and characteristics for indirect committers a= nd persons used.
Such objective requirements and characteristics for indirect committers a= re that their actions cannot be objectively qualifiable (do not belong to the bearings of the case), and that even though their basic action is to make others do indictable offences, their accessory-like behavior cannot be excluded. Indirect actorship with omission cannot be excluded either; this special delinquency formation is, however, realized only when the delinquent (who is under special legal obligation to prevent the given result or actio= n) has personal interest in the committing of the indictable offence (this res= ults from the requirement of use of others as instruments). As a subjective requirement we can mention that the committing of the indictable offenc= e of the person(s) used should be governed and defined by the intentions of the ‘indirect committer’. Finally, we should stress that since indi= rect delinquents cannot be considered as committers, it cannot be required that = they have the personal qualifications included in the concept of actorship. What= is required, on the other hand, is that either him/her, or the person(s) used should fulfill these requirements.
A basic objective require= ment for persons used is that they should realize actions which fulfill t= he legally defined criteria for an indictable offence, or perform objective elements of actions belonging to the sphere of preparation. The characteris= tic feature of this delinquency formation is that the evaluation (by the study = of the stages of criminal actions) of the action conforms to the evaluation of= the actions of the person(s) used. It is a minimal subjective requirement that the person(s) used have their volitional abilities; that is, that there should be a certain minimal subjectively grounded connection between the pe= rson and the behavior or action. Finally, if the person(s) used realize crimes of negligence, there should be an intentional part of this action (crimes of m= ixed culpability), since in crimes of negligence in the strict sense it is ontol= ogically impossible that there be contributing persons.
2.9. THE POSSIBLE APPLICATIO= NS OF THE RESULTS OF THE STUDY
There are three intended purposes of this study; if these are achieved, the possi= ble profitable application of the result can also be threefold.
As I remarked in the summary of the research task, it is now half a century si= nce a full monographic work was published on the questions of actorship and complicity. Both legal and social changes have taken place since then, and a few current questions have also been raised. In this study, I was therefore aiming at a systematic theoretical treatment of the problematics connected = to delinquents. As a result, the study can have its uses in legal education= .
Several questions touched on in this study were raised by practical problems. In th= ese problematic fields, I attempted to give theoretically founded guidelines, w= hich can be used in legal practice. Accordingly, the study has it profits in = practical legal work.
The study closes with the sketching up of a de lege ferenda suggestion about the regulations concerning delinquents, based on the theoretical frameworks described and the survey of the problematic fields. In the course of the codification work on the Criminal Code (in progress since the spring of 200= 1), it has become apparent that the legal regulations on delinquents need modifications. The only wide-scope suggestion of modifications concerning delinquents to date was written by Imre A. Wiener, but the closing part of = this study, which contains a suggestion in many elements similar but in others different from this, could easily be used in the course of legal codification work.