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Antragsdelikt

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In the criminal law of some countries, an Antragsdelikt (plural Antragsdelikte) is a category of offence which cannot be prosecuted without a complaint by the victim. The same concept has been adopted in Japanese law under the name shinkokuzai, in South Korean law under the name chingojoe, and in the law of the Republic of China (both during the early Republic period and on Taiwan) using various terms.[1][2]

Basic definition

The term comes from the German language words Antrag (petition) and Delikt (offence). Antragsdelikte are similar to, but not identical to Ermächtigungsdelikte. For example, in Austria the latter category includes such offences as trespass or fraud committed in an emergency situation. The victim's consent is required for investigation of an Antragsdelikt to begin; no such consent is required in the case of an Ermächtigunsdelikt, though the prosecutor will inform the victim. In both cases, actual prosecution of the offence will only proceed with the consent of the victim.[3] Another term is Privatanklagedelikte.[1]

Antragsdelikt is somewhat analogous to the concept of a compoundable offence in Thai law, though different from that same term in Malaysian law or Singaporean law.[1]

Germany

The German Criminal Code (Strafgesetzbuch) lists the following as offences which will only be prosecuted on request:

In addition, the German Criminal Code states that the following offences will be prosecuted on the request of the victim or in the case of "special public interest":

Japan

The concept of shinkokuzai first entered into Japanese law in the early Meiji period. The 1870 criminal code Shinritsu Kōryō (新律綱領), though it did not use the term directly, stated that the prosecution of a number of violent offences between husband and wife depended on a complaint by the person in question. The phrase used to express this condition, mizukara tsugeru wo mate, is probably the origin of the modern term shinkokuzai; mizukara tsugeru (to inform personally) contains two of the same kanji used to write shinkokuzai.[4] The draft criminal code of November 1877 used the term shinkokuzai directly in the definitions of various offences.[5] Under modern Japanese law, sexual offences such as simple rape or indecent assault are categorised as shinkokuzai, lest a prosecution against the victim's will result in secondary victimisation or infringement of privacy.[1]

South Korea

In South Korea, the following offences are categorised as chingojoe:[6]

Republic of China

See also: Legal history of China

The term qīn'gàozuì was used in laws in China's early Republic era (1912–1928), for example in the 1921 Criminal Procedure Ordinance or the 1928 Criminal Procedure Law.[7] However, in modern terminology, the concept of a crime for which there will be no trial without complaint is usually expressed as gàosunǎilùn zhī zuì (告訴乃論之罪). A 1999 amendment to Taiwan's Criminal Code removed indecent assault and rape (with the exception of spousal rape) from this category.[8]

People's Republic of China

The Criminal Code of the People's Republic of China[9] uses the term gàosù cái chǔlǐ (告诉才处理, lit. "action only if complained"). There are currently five offenses in this category, all minor offenses against individuals: insult, defamation, infringement of freedom of marriage (usually by parents), maltreat (of family members) and ordinary embezzlement. However, the Criminal Code does state that any such offense resulting in serious consequences (e.g. serious injury or death) is prosecutable without complaint.

Egypt

While no formal class of law equivalent to the Antragsdelikt exists in the law of Egypt, several religious crimes, including apostasy, cannot be prosecuted on the initiative of the public prosecutor; the case must instead be raised by another citizen.

Notes

  1. ^ a b c Ota 2007, p. 131
  2. ^ Huang 2000, p. 305
  3. ^ Hausmaninger 1998, p. 172
  4. ^ Kurosawa 2006, pp. 408–410: 「親ラ告ルヲ待テ。乃坐ス。」
  5. ^ Kurosawa 2006, pp. 420–421
  6. ^ Doosan Encyclopedia 2009
  7. ^ Huang 2000, p. 313
  8. ^ Ota 2007, p. 132
  9. ^ 中华人民共和国刑法

References

  • Hausmaninger, Herbert (1998), The Austrian Legal System, Kluwer Law International, ISBN 978-90-411-1014-5
  • Huang, Yuan-sheng (2000), 民初法律變遷與裁判 : 1912-1928, Taipei: National Chengchi University, ISBN 978-88-8050-902-8, OCLC 48141957
  • Kurosawa, Mutsumi (November 2006), "明治初期の告訴権・親告罪 : 刑事実体法における関連諸規定の概観", Toyama University Journal of Economic Studies, 52 (2): 403–430
  • Ota, Tatsuya (2007), "The development of victim support and victim rights", in Chan, Wing-Cheong (ed.), Support for Victims of Crime in Asia, Taylor and Francis, pp. 113–148, ISBN 978-0-415-43585-7
  • "친고죄 [親告罪, Antragsdelikt]", Doosan Encyclopedia, 2009, retrieved 2011-02-10
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