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Selected Bibliography on
De Minimis Non Curat Lex in Criminal Law
Bibliographie choisie sur la règle
De Minimis Non Curat Lex en droit pénal
See also / Voir aussi: Canadian Law / Droit canadien
II- Comparative Law / Droit comparé
THE AMERICAN LAW INSTITUTE, Model Penal Code and Commentaries
Draft and Revised Comments), Part I - General Provisions
to 2.13, Philadelphia: The American Law Institute, 1985, liii, 420
p., see "Section 2.12. De Minimis Infractions" at pp. 399-404;
___________Model Penal Code: Proposed Official Draft, Philadelphia: The American Law Institute, 1962, xxii, 346 p., see section 2.12, "De Minimis Infractions" at pp. 42-43 :
"Section 2.12 De Minimis Infractions.
"The Court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant's conduct:
(1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense; or
(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the legislature in forbidding the offense.
The Court shall not dismiss a prosecution under the Subsection (3) of this Section without filling a written statement of its reasons."
___________39th Annual Meeting Proceedings, American Law Institute, Philadelphia: American Law Institute, 1963, 630 p., see the discussion and approval of section 2.12 at pp. 105-108; copy on microfiche at the library of the Supreme Court of Canada, Ottawa;
"[Professor Wechsler] Now, I will say a word of general justification for this. Nothing is more common in criminal law enforcement, of course, than the exercise on the part of the prosecuting attorney, to some extent -- grand juries where there are grand juries -- of a kind of unarticulated authority to mitigate the general provisions of the criminal law to prevent absurd applications, and this is an in camera operation. It doesn't come to court.
It has been a general purpose of the Code to try to lay a foundation for bringing this general practice in criminal law administration, which we agree is necessary, somewhat further out into the open, and the only way to do that seemed to be to vest in the court a kind of power analagous to the general dispensing power which is now exercised in practice by the organs of administration.
To that end this section was drafted. It gives the court an authority to dismiss upon the finding that the defendant's conduct, first, was within a customary license or tolerance not expressly negatived by the victim or inconsistent with the law -- trespassing, for example, is an area where trespassing has been traditionally permitted by the owners; picking up newspapers from the stand when you haven't got five cents to pay for them, but paying the next day when you get your paper.
This is the first clause, and I don't think anybody could be bothered by that.
The second is the case where the conduct does come within the section as literally drafted, but only to too trivial an extent to warrant the condemnation of conviction. Some statutory rape cases might come under this, I suppose, in almost any metropolitan area. That's perhaps the area in which prosecuting attorneys are called upon most frequently to exercise a discretion not to prosecute.
Well, why don't they, if these are technically crimes? Because they attribute to the legislature ordinary common sense in its formulation of the prohibition. It has been made a very rigid prohibition to prevent evasion, but still that doesn't necessarily mean that the legislature meant that every single instance would be prosecuted.
This is an illustration of the second.
Then, thirdly, you get the same problem where there are extraordinary and unanticipated mitigations for a particular mode of conduct. The third is the most difficult, and there as a safeguard we have put in that the court can only dismiss upon a filing of a written statement of reasons. Our hope is that a provision of this sort would tend not only to regularize what actually takes place in the realities of criminal law administration -- what ought to take place and will continue to take place but also give the district attorney a chance to avoid what are really now evasive ways of doing this. A sensible district attorney will say only that he was satisfied that the evidence wasn't sufficient to get a conviction before a jury, whereas what he means is that he was satisfied that no jury ought to convict in the circumstances, and there is a good deal of discomfiture in the lack of candor that must attach to this phase of criminal law administration.
This is the substance of it. Our hope is that this would bring it out further into the open and before the court, or, in cases that are non prossed, that this legal justification would be adduced in substitution for the routine statement that the evidence was insufficient." (pp. 105-106)
ATCHUTHEN PILLAI, P.S., Criminal law, 6th ed., Bombay: N.M. Tripathi, 1983, xxxii, 892 p., on "de minimis non curat lex", at section 95 of the Indian Penal Code, see pp. 142-144;
"No reasonable man complains of mere trifles -- de minimis non curat lex. Law would not take action on small and trifling matters. There may be eccentric men who may go before Courts of law complaining of triffling matters such as being hustled in a crowded place, etc. It is to guard against such complaints that Sec. 95 is enacted in the Indian Penal Code." (p. 142)
BARLOW, N.L.A., "Possession of Minute Quantities of a Drug",  The Criminal Law Review 26-39; Contents: "(a) The literal approach...27; (b) The past possession approach...29; (c) The relevance of minute quantities to the issues of knowledge...31; (d) The social policy approach...33; Conclusions...37";
BROOM, Herbert, 1815-1882, A selection of legal maxims, 10th
ed. by R.H. Kersley, . London : Sweet & Maxwell, 1939, lxxxvii, 706
p., copy at Ottawa University, FTX Reference, KD 315 .B78 1939;
"de minimis non curat Lex" at pp. 88-90; see his 4th edition,
1854, at pp. 124- 126, available at http://books.google.com/books?id=Ww0yAAAAIAAJ&pg=PA282&dq=manslaughter+intent&as_brr=1#PPA127,M1
(accessed on 17 November 2007);
BOSNIA and HERZEGOVINA, Criminal Code of the Federation of Bosnia and Herzegovina
BUCHWALTER, James L., "Dismissal of State Criminal Charge in
of, or in Interest of, Justice", (1999) 71 ALR5th 1-97, see "De minimis
harm" at pp. 50-54; ALR = American Law Reports; copy at the
of the Supreme Court of Canada;
BURCHELL, Jonathan and John Milton, Principles of Criminal Law, Cape Town: Juta, 1991, xlvii, 669 p., see Chapter 20, "De Minimis Non Curat Lex", at p. 193, ISBN: 07212639X; research note: there is now a 2nd ed, Kenwyn: Juta, 1997, li, 734 p., ISBN: 0702138541 which I have not consulted yet;
"Strictly speaking, de minimis is not a defence which excludes the unlawfulness of the accused's conduct, but rather a decision of a court to allow unlawful conduct to go unpunished on account of its trivality.7 Whatevere the correct approach to a de minimis may be, the practical result of successfully invoking the de minimis principle is that the accused is acquitted. ...
7 See S A Strauss (1970) 87 SALJ 483. Burchell & Hunt 381-3. Perhaps such a situation could be seen as an excuse (in the sense in which the word is used in the German jurisprudence, see above, 146-8) rather than a ground of justification." (p. 193)
CARBONNIER, Jean, "De minimis non curat praetor" dans Roger Nerson et al., Mélanges dédiés à Jean Vincent, Paris: Dalloz, 1981, xvi, 458 p., à la p. 29, ISBN: 2247002218; copie à l'Université de Montréal, AZZD/M5165; copie à l'Université McGill, Nahum Gelber Law Library, KJV;237;V561981 law; titre noté dans ma recherche mais article pas encore consulté; livre non disponible dans les bibliothèques de la région d'Ottawa;
CROATIA, Criminal Code in English, available at http://www.vsrh.hr/CustomPages/Static/HRV/Files/Legislation__Criminal-Code.doc, (accessed on 26 September 2007);
DAVIDSON, Seth, Notes, "Criminal Liability for Possession of Nonusable Amounts of Controlled Substances", (1977) 77 Columbia Law Journal 596-624; may be useful for researchers;
DOUCET, Jean-Paul, "ADAGES CLASSIQUES -- Formules en latin", site web disponible à http://ledroitcriminel.free.fr/adages_classiques/formules_en_latin.htm (visionné le 31 janvier 2004);
"De minimis non curat praetor. Les magistrats ne doivent pas s’attacher à des vétilles."
DUBBER, Markus Dirk, "Recht and Rechtsgut: The Objective of German Criminal Law", draft, working Paper, 23 September 2002, available in word format at the author's web site, http://wings.buffalo.edu/law/bclc/web/publications.htm (accessed on 17 November 2002), 10 p; note de recherche: article sur la notion de bien juridique;
"Certain de minimis conduct that fits the definition of an offense is nonetheless declared noncriminal (or not 'subsumed' under the offense definition) because it does not 'really' violate the legal good protected by the statute in question. So tipping the mailman is not bribery, playing penny poker not gambling, and calling your brother a bad name not a criminal insult.58 The Model Penal Code likewise provides for judicial dismissal of a prosecution for prima facie criminal conduct that 'did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the consdemnation of conviction.'59
58 Claus Roxin, Strafrecht: Allgemeiner Teil I, at 243 (3rd ed. 1997)
59 § 2.12; Markus D. Dubber, Model Penal Code 180-82 (2002)" (p. 9)
___________"Theories of Crime and Punishment in German Criminal Law", 24 p., University at Buffalo Law School, Buffalo Legal Studies Research Paper Series, Paper number 2005-02; available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=829226 (accessed on 13 November 2005);
DUHAIME'S LAW DICTIONARY
available at http://www.duhaime.org/dict-d.htm,
(accessed on 2 March 2002);
ELSWICK, Samuel D. and Richard A. Bales, "No
No Foul: The OSHRC's Authority to Label an OSH Act Violation de minimis
and to Require No Abatement", (2001-2002) 22 Northern Illinois
Law Review 383-417;
FILBERT, Brent G., "Defense of Inconsequential Violation in Criminal Prosecution", (1999) 68 ALR 5th 299-341; ALR = American Law Reports; copy at the library of the Supreme Court of Canada; important contribution;
"Not surprisingly, the defense has been more fully explored by courts in jurisdictions with a statute authorizing the dismissal of charges based on de minimis grounds. In determining whether to apply the defense, the courts have looked to the background, experience, and character of the defendant, the circumstances surrounding the offense, the actual harm caused by the infraction, and whether the legislature envisionned the defendant's conduct when it enacted the violated statute." (pp. 309-310).
GREAT BRITAIN, "An Act to consolidate and amend the Statute Law of England and Ireland relating to Offences against the Person", 1861, 24 & 25 Victoriae, chapter 100, sections 44 and 45; research note: s. 44 is "framed on the 9 Geo. 4, c. 31, s. 27 and the Irish Act, 14 & 15 Vict. c. 93, s. 21" (DAVIS, James Edward, The Criminal Consolidation Statutes of 24 & 25 Victoria..., 1861, p. 269);
"44. [If the Magistrates dismiss the Complaint, they shall make out a Certificate to that Effect.] If the Justices, upon the Hearing of any such Case of Assault or Battery upon the Merits, where the Complaint was preferred by or on the Behalf of the Party aggrieved, under either of the last Two preceding Sections, shall deem the Offence not to be proved, or shall find the Assault or Battery to have been justified, or so trifling as not to merit any Punishment, and shall accordingly dismiss the Complaint, they shall forthwith make out a Certificate under their Hands stating the Fact of such Dismissal, and shall deliver such Certificate to the Party against whom the Complaint was preferred."
"45. [Certificate or Conviction shall be a Bar to any other Proceedings.] If any Person, against whom any such Complaint as in either of the last Three preceding Sections mentioned shall have been preferred by or on the Behalf of the Party aggrieved, shall have obtained such Certificate, or, having been convicted, shall have paid the whole Amount adjudged to be paid, or shall have suffered the Imprisonment or Imprisonment with Hard Labour awarded, in every such Case he shall be released from all further or other Proceedings, Civil or Criminal, for the same Cause."
__________ An Act for diminishing Expense and Delay in the Administration of Criminal Justice in certain Cases, 1855, 18 & 19 Victoriae, chapter 126, section1;
"[Power to Justices at Petty Sessions to punish Persons charged with Larceny, & c. summarily] [If Parties accused do not consent, Justices to deal with Cases as if this Act had not passed]
I. Where any Person is charged before any Justices of the Peace assembled at such Petty Sessions as herein-after provided with having committed Simple Larceny, and the Value of the whole of the Property alleged to have been stolen does not, in the Judgment of such Justices, exceed Five Shillings, or with having attempted to commit Larceny from the Person, or Simple Larceny, it shall be lawful for such Justices to hear and determine the Charge in a summary Way, and if the Person charged shall confess the same, or if such Justices, after hearing the whole Case for the Prosecution and for the Defence, shall find the Charge to be proved, then it shall be lawful for such Justices to convict the Person charged, and commit him to the Common Goal or House of Correction, there to be imprisoned, with or without Hard Labour, for any period not exceeding Three Calendar Months, and if they find the Offence not proved they shall dismiss the Charge, and make out and deliver to the Person charged a Certificate under their Hands, stating the Fact of such Dismissal; and every such Conviction and Certificate respectively may be in the Forms (A.) and (B.) in the Schedule to this Act, or to the like Effect: Provided always, that if the Person charged do not consent to have the Case heard and determined by such Justices, or if it appear to such Justices that the Offence is one which, owing to a previous Conviction of the Person charged, is punishable by Law with Transportation or Penal Servitude, or if such Justices be of opinion that the Charge is, from any other Circumstances, fit to be made the Subject of Prosecution by Indictment, rather than to be disposed summarily, such Justices shall, instead of summarily adjudicating thereon, deal with the Case in all respects as if this Act had not been passed: Provided also, that if upon the Hearing of the Charge, such Justices shall be of opinion that there are Circumstances in the Case which render it inexpedient to inflict any Punishment, they shall have power to dismiss the Person charged, without proceeding to a Convention." (emphasis in bold added)
GREAT BRITAIN, House of Commons, Bill 178, Criminal Code (Indictable Offences) Bill, 1878 in Sessional Papers [British Parliamentary Papers] (1878), vol. 2, pp. 5-249 at p. 41, section 26 "Trifling Offencesy"; research notes: Bill 178 was drafted by Sir James Fitzjames Stephen; for comments by Stephen on that Bill, see GREAT BRITAIN, House of Commons, "Memorandum [by Sir James Stephen] 'Showing the ALTERATIONS proposed to be made in the existing Law by the CRIMINAL CODE (INDICTABLE OFFENCES) Bill [Bill 178], if Amended, as proposed by the Attorney General'", infra;
"Section 26. Trifling Offences
Nothing shall be deemed to be an offence which appears to the court having cognizance of the matter to be of too little importance to be treated as such, or if the justice before whom the case is brought for inquiry is of opinion that there are circumstances in the case which render it inexpedient to inflict any punishment."
___________House of Commons, "Memorandum [by Sir James Fitzjames Stephen] 'Showing the ALTERATIONS proposed to be made in the existing Law by the CRIMINAL CODE (INDICTABLE OFFENCES) Bill [Bill 178], if Amended, as proposed by the Attorney General'", command number 276 in Sessional Papers [British Parliamentary Papers] (1878), vol. 63, pp. 159-175, see p. 161 for Stephen's comments on his "Clause 26 Trifling Offences"; research note # 1: for Parliamentary command Paper number 276, the page number is p. 3; research note # 2: for Bill 178 and Section 26, see GREAT BRITAIN, House of Commons, Bill 178, Criminal Code (Indictable Offences) Bill, 1878, supra;
"CLAUSE 26. Trifling Offences.
By 24 & 25 Vict. c. 100, ss. 44 and 45, magistrates are authorised to dismiss charges of assault if they think them too trifling to be punished; and by 18 & 19 Vict. c. 126, s. 1, they may take the same course in cases of theft. By the Indian Penal Code, s. 95, a somewhat similar general provision is made. Clause 26 of the Bill is adapted from these enactments, and generalises the language of 18 & 19 Vict. c. 126, s.1."
___________House of Commons, Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences: With an Appendix Containing a Draft Code Embodying the Suggestions of the Commissioners, Command number 2345 in Sessional Papers [British Parliamentary Papers] (1878-79), vol. 20, pp. 169-378, see section 13 of the Draft Code at p.340 with the comments on the provision at p. 292 (Chairperson: C.B. Blackburn); also published in Irish University Press Series of British Parliamentary Papers: Royal Commission Select Committee and Other Reports on the Criminal Law with Proceedings Minutes of Evidence Appendix and Index 1847-79, vol. 6, Legal Administration Criminal Law, Dublin: Shannon University Press, 1971, pp. 369-579, ISBN: 0716511428; research note: for Command Paper number 2345, the pages are pp.13, 65-66;
"Section 13. Discharge without Verdict.
In any case where the Court considers that the offence deserves no more than a nominal punishment, the Court may in its discretion direct the discharge of the accused person without taking any verdict, and such discharge shall have all the effects of an acquittal." ( p. 340)"
"Section 13 gives the court power to discharge without conviction, persons who have committed acts which, though amounting in law to crimes, do not under the circumstances involve any moral turpitude. This provision was suggested partly by section 95 of the Indian Penal Code, which excepts from the class of offences acts causing harm 'so slight that no person of ordinary sense and temper would complain of such harm' and partly by 18 & 19 Vict. c. 126 s. 1 (the Criminal Justice Act, 1855), which enables justices to dismiss charges of larceny if they are of opinion 'that there are circumstances in the case which render it inexpedient to inflict any punishment.' The same principle is recognised as to assaults 'so trifling as not to merit any punishment' by 24 & 25 Vict. c. 100, ss. 44, 45. There seems no reason why the principle should not extend to a trial for an indictable offence. The conferring of such power on the judge but little enlarges the authority at present vested in him. He may now, on a conviction, award a punishment merely nominal, or discharge the person convicted on his own recognizance. This course, while exempting the person from punishment under a sentence, may still leave him subject to the most serious consequences; for example, upon a conviction for manslaughter committed under circumstances showing the person convicted, though technically guilty, to be entirely free from all moral blame, he would forfeit a pension or be disqualified from holding a beer or spirit license. A conviction for bigamy under certain circumstances might furnish another illustration." (p. 292)
HUDA, Syed Shamsul, The principles of the law of crimes in British India, Calcutta ; Winnipeg : Butterworth, 1919, xv, 455 p., see "Acts Causing Slight Harm" at pp. 346-347 (series; Tagore Law Lectures - 1902); copy at the library of the Supreme Court of Canada, Ottawa, KF9220 ZM2 H82 1902;
"ACTS CAUSING SLIGHT HARM.
Section 95, I.P.C. Trifles.
No reasonable man complains of mere trifles. No man can pass through a crowded thoroughfare without treading on somebody's toes or without clashing against some body and no reasonable man would complain of such annoyances. "De minimis non curat lex" is an old doctrine of Roman law. The provision is unnecessary for ordinary men, but there are eccentric people all over the world, and it is to guard against eccentricities that a formal provison of law of this kind is needed." (pp. 346-347)
"95. ACT CAUSING SLIGHT HARM. Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm."
INDIA, Indian Law Commissioners, A Penal Code prepared by the Indian Law Commissioners, and published by Command of the Governor General of India in Council -- Reprinted from the Calcutta Edition, London: Pelham Richardson, 1838, viii, 138 p., reprint in Birmingham (Ala.): Legal Classics Library, c1987; and in Union (New Jersey): The Lawbook Exchange Ltd., 2002, ISBN: 158477018X; the Indian Law Commissioners were: Lord Thomas Babington Macaulay, 1800-1859, J.M. MacLeod, G.W. Anderson and F. Millett;
ISRAEL, Penal Law of Israel (626/1996) -Unofficial English Translation--"Penal Law--Draft Proposal and New Code," 30 Israel Law Review 5-27 (1996)"73. Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.
(a) A gets into a public carriage in which Z is sitting, and in seating himself slightly hurts Z by pressing him against the side of the carriage. Here, though A's act falls within the definition in Clause 316 ['voluntarily to cause hurt'], yet if the whole harm caused was so slight that no man of ordinary sense and temper would complain of such harm, A has committed no offence.
(b) A, a servant in Z's house, having occasion to write a letter, dips a pen in ink, the property of Z. Here, though the act of A may fall under the definition of theft, A has committed no offence." (p. 9)
[NOTE B. ON THE CHAPTER OF GENERAL EXCEPTIONS.]
Clause 73 is intended to provide for those cases which, though, from the imperfections of language, they fall within the letter of the penal law, are yet not within its spirit, and are all over the world considered by the public, and for the most part dealt with by the tribunals, as innocent. As our definitions are framed, it is theft to dip a pen in another man's ink, mischief to crumble one of his wafers, an assault to cover him with a cloud of dust by riding past him, hurt to incommode him by pressing against him in getting into a carriage. There are innumerable acts without performing which men cannot live together in society, acts which all men constantly do and suffer in turn, and which it is desirable that they should do and suffer in turn, yet which differ only in degree from crimes. That these acts ought not to be treated as crimes is evident, and we think it far better expressly to except them from the penal clauses of the Code than to leave it to the Judges to except them in practice. For if the Code is silent on the subject, the Judges can except these cases only by resorting to one of two practices which we consider as most pernicious, by making law, or by wresting the language of the law from its plain meaning." (p. 81)
MACEDONIA, Criminal Code,
available at http://www.legislationline.org/legislation.php?tid=1&lid=6272
(accessed on 24 September 2007);
An act of minor significance
(1) An act is not a crime even though it contains characteristics of a crime, when it is an act of minor significance, because of the lack or insignificance of the damaging consequences and the low level of criminal responsibility of the offender.
(2) The provision from paragraph 1 may be applied to a crime for which the law prescribes a fine or an imprisonment sentence of up to three years."
MAGEN, E., "De Minimis as a meaningful concept", (1996) 43 Hapraklit 38-56; this article in the Israeli legal periodical Hapraklit was noted in my research but not consulted yet; not available in the Ottawa area libraries; may be in hebrew;
NEMEROFSKI, Jeff, "What is a "Trifle" Anyway?", (2001-2002) 37 (2) Gonzaga Law Review 315-341; copy at Ottawa University, FTX Periodicals, KFW 69 .G65
Nemerofsky's article examines how the de minimis doctrine has been applied in a variety of cases including contract, tort, and civil as well as criminal matters. Although it is difficult to identify or categorize the specific facts or circumstances upon which the de minimis doctrine has been applied, Nemerofsky suggests that the policy reasons behind a court's invocation of the doctrine remains the same--to save on judicial resources and prevent the system from getting bogged down with trifling or inconsequential matters. He begins his article by examining the legal meaning of the word "de minimis" by tracing its roots from the time of medieval England and days of Kings and Chancellors. He describes the development of England's Chancery Court from its early beginnings as an administrative court to a court of equity. The article also discusses the development of American courts of equity as a result of the equity power of the English Chancery Court system. Following this brief historical background, Nemerofsky discusses the importance of legal maxims and examines what is perhaps the best-known maxim of equity--the de minimis doctrine. Finally, Nemerofsky uses a variety of cases to illustrate the wide acceptance of the de minimis maxim in some of the more whimsical and entertaining fact patterns. (This abstract available at http://www.law.gonzaga.edu/review/future.htm)
PETERSEN, Martin, "What is a de Minimis Risk?", (2002) 4(2) Risk Management: An International Journal 47 - 55; available at http://www.atypon-link.com/PERP/doi/pdf/10.5555/rima.2002.4.2.47 (accessed on 12 July 2006); useful for researchers;
PEYRAT, Didier et Julien Damon, "Les incivilités en
(novembre 2002) Recherche droit et justice, lettre
14 aux pp.15-18; pas directement sur de minimis mais sur les
nouvelle avenue de recherche possible; ISSN: 1280-1496; disponible
(visionné le 19 novembre 2002);
POLAND, Penal Code; available at http://www.era.int/domains/corpus-juris/public_pdf/polish_penal_code1.pdf (accessed on 24 September 2007);
POMORSKI, Stanislaw, "On Multiculturalism, Concepts of Crime, and
'De Minimis' Defense",  Brigham Young University Law Review
PUERTO RICO, The Penal Code of the Commonwealth of Puerto Rico of 2004, available at http://www.oslpr.org/english/PDF/penal%20code.pdf (accessed on 16 June 2006) / in Spanish/en espagnol: Codigo Penal del Estado Libre Asociado de Puerto Rico -- Ley Num. 149 de 18 de Junio de 2004, available at http://www.unifr.ch/derechopenal/legislacion/pr/CP_puertorico04.pdf (accessed on 16 June 2006);
ROBINSON, Paul H., 1948-, Criminal Law Defences, 2 volumes,
Paul (Minnesota): West Publishing, 1984, xli, 585 p. (for vol. 1)
and xxvii, 783 p. (for vol. 2), see vol. 1, "§ 67. Customary
License, De minimis Infraction, and Conduct Not Envisaged as Prohibited
by the Offense" at pp. 320-327 (Series; Criminal Practice
ISBN: 0314815139 (for the 2 volumes);
___________"Rules of Conduct and Principles of Adjudication", (1990) 57 University of Chicago Law Review 729-771, see "De minimis violations" at pp. 754-755;
"But while de minimis infractions may violate the rules of conduct, they do not give rise to sufficient blameworthiness under the adjudicatory principles of blame to merit conviction." (p. 755)
___________Structure and Function in Criminal Law, Oxford: Oxford University Press, 1997, xxxc, 251 p., (series; Oxford monographs on criminal law and criminal justice), ISBN: 0198258860;
ROBINSON, Paul H., 1948-, and the University of Pennsylvania Law School, Criminal Law Research Group, Commissioned by the Office of the Attorney General of the Maldives and the United Nations Development Programme, Final Report of the Maldivian Penal Law & Sentencing Codification Project, Volume 1 Text of Draft Code (including Sentencing Guidelines), January 2006, 196 p.; available at http://www.law.upenn.edu/fac/phrobins/draftislamicpenalcode/Fina%20ReportMPLSCPvol1.pdf (accessed on 18 January 2006); and Final Report of the Maldivian Penal Law & Sentencing Codification Project, Volume 2 Official Commentary, January 2006, 235 p.; available at http://www.law.upenn.edu/fac/phrobins/draftislamicpenalcode/FinalReportMPLSCPvol2.pdf (accessed on 18 January 2006);"Appendix A: A DRAFT CODE of CONDUCT
Section 201. De Minimis Violation
An actor's violation of the Code of Conduct is not criminal if theactor's conduct is too trivial to warrant the condemnation of a criminal conviction." (pp. 211 and 225)
SAMUELS, Alec, " 'De minimis non curat lex'", (1985) Statute Law Review 167-169;"Article 14. Concept of Crime
1. A socially dangerous act committed guiltily which is prohibited by the present Code under threat of punishment shall be deemed to be a crime.
2. An action (or failure to act), although formally also containing the indicia of any act provided for by the present Code but by virtue of insignificance does not represent a social danger, shall not be a crime [as amended 25 June 1998]." (p. 6)
"ARTICLE IX: INSIGNIFICANT HARM
SECTION 152: SINGLE SECTION
Conduct which produces no significant harm or danger is not criminal.
Philosophy of the Exemption
The exemption ground based on 'insignificance of the harm' caused by a criminal conduct is the product of positivist criminological ideology. The positivist school of criminal law assumes state intervention not to be warranted except for the prevention of social harm or danger. According to this school, the 'illegality' of conduct lies in the social harm it produces or the danger of future harm it evinces. In the absence of either, sanctions are unjustified. This doctrine of social harm has been adopted in several legal systems, and particularly in the communist positivistically inspired legislations. Accordingly, the latter normally also concede an exemption where the social harm or danger is minor.
Significance of Consequences
However, even outside of the area of positivist criminal law doctrine there is a sound basis for introduction of a limitative, negative provision, exempting from responsibility where the social harm produced by the act is minor. In all criminal law, despite attempts to construct true 'law of guilt,' consequences of conduct determine or aggravate responsibility. This is justified by the fact that consequences reflect unconscious attitudes of the actor toward the conduct in issue. Absence of harmful consequences despite intent to produce them indicates strong inhibitions which ought to be taken into consideration, negatively, that is, to warrant immunity. This should be extended to situations where the consequences are minor, for the insignificance of consequences may be presumed to express the defendant's unconscious, partial but extensive, withdrawal from the conduct." (pp. 416-417)
SLOVENIA, Republic of, Penal Code, available at http://www.oecd.org/dataoecd/50/18/34287694.pdf (accessed on 14 April 2006); as of 28 September 2004, Unofficial translation, Source: the Commission for the Prevention of Corruption (OECD);
SNYMAN, C.R., A Draft Criminal Code for South Africa with a Commentary, Cape Town: Juta, 1995, xl, 133 p., see "Triviality of transgression" at p. 5 with comments at p. 56, ISBN: 0702133345;
"Triviality of transgression
2.9 Conduct is not unlawful if the nature or attendant circumstances of the conduct are such that the conduct neither causes nor threatens the harm or evil sought to be prevented by the law which defines the offence allegedly committed through the conduct, or if the conduct does so only to an extent too trivial to warrant the condemnation of a conviction." (p. 5)
STRAUSS, S.A., "Book Reviews - South African Criminal Law and Procedure...Vol. I: General Principles of Criminal Law. By E.M. Burchell and P.M.A. Hunt...Juta & Co., Ltd. 1970...", (1970) 87 South African Law Journal 471-484:
"Is it correct to consider de minimis non curat lex as a defence excluding unlawfulness (see p. 320 [of Burchell and Hunt's book being reviewed])? It is respectfully submitted that de minimis does not mean that the act is justified; it remains unlawful, but on account of its triviality it goes unpunished. De minimis might more properly be described as a defence excluding punishment." ( p. 483)
SUGMAN, Katja G., Matjaz Jager, Nina Persak and Katja Filipcic, Criminal Justice Systems in Europe and North America: Slovenia, Helsinki (Finland): HEUNI, 2004, 82 p., ISBN 9525333213; available at http://www.heuni.fi/uploads/fnxdt.pdf (accessed on 30 August 2004);
"Under Slovenian criminal law an act that would normally constitute an offence is not an offence if it is legally justified. The general grounds for justification (izkljucitev protipravnosti) under Slovenian criminal law are: ...
d) De minimis offence: an act that contains all the elements of the criminal offence but is of low significance. An act or conduct is deemed to be of low significance when the danger thereby involved is insignificant, owing to the nature or gravity of the conduct; the fact that the harmful consequences are insignificant or do not exist; the circumstances in which the conduct was performed; the low degree of the criminal liability of the perpetrator; or the personal circumstances of the perpetrator (article 14 of the Criminal Code)." (p. 19)
VAN DAALEN, Otto, "The subtle relation between de minimis and freedom of speech in the digital age", 7 December 2002, available at http://www.columbia.edu/~ov2005/deminimis2.pdf (accessed on 18 June 2003);
VEECH, Max L. and Charles R. Moon, "De Minimis Non Curat Lex",
45 Michigan Law Review 537-570; excellent
VEILLEUX, Danny R., "Minimum Quantity of Drug Required to Support
that Defendant is Guilty of Criminal 'Possession' of Drug under State
(1992) 4 ALR5th 1-116; ALR = American Law Reports; copy at the
of the Supreme Court of Canada, Ottawa;
WEIGEND, Thomas, "Allemagne/Germany", (2003) 74(1-2) International Review of Penal Law 71-92; notes: article in English; national report; XVIIth International Congress of Penal Law, Preparatory Colloquium, Section II, Corruption and Related Offences in International Economic Acrtivities, November 11-12, 2002, Tokyo (Japan);
"The de minimis issue, i.e. the exception of very minor, socially customary advantages from the ambit of criminal corruption law, should not be regulated by legislation. Since the acceptability of such practices does not so much depend on the monetary value of the advantage given to the public official but on the situational context, a legal provision could do no more than state a general principle which is already being applied, more or less consistently, by the courts and prosecutorial agencies." (pp. 86-87)
WILLIAMS, Glanville, Textbook of Criminal Law, 2nd ed., London: Stevens, xlvii, 1007 p., ISBN: 0420468501, 042046860 (pbk.), see "Minimal Violations" at pp. 619-622;
English law is popularly supposed not to concern itself with trifles. But those who have this belief are likely to be disabused of it if they come to court." (p. 619)
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