Samenvatting van de voorgeschreven literatuur voor het vak Privaatrecht in perspectief: Strafrecht en privaatrecht, week 1
Bevat een samenvatting van de 4 voorgeschreven artikelen
Samenvatting Week 1
Giesen, Kristen & Kool – The Dutch crush on
compensating crime victims
3 key components in the relation between crime and tort
3 major components in the interacton between criminal and tort law in the Netherlands:
1. Crimes are torts and torts may be crimes
2. Criminal court is an equivalent to a civil court when dealing with a tort claim
3. Criminal convicton is strong evidence for a related tort claim fled in a civil court afer
the criminal case is decided by the criminal court (161 Rv)
Art. 6:162 BW: unlawful act is an act or omission in violaton of a duty imposed by writen
law -> all criminal acts are violatons of writen law, so it includes criminal acts -> tort can be
criminal acts if the unlawful behaviour meets the requirement of unlawfulness and other
requirements of a criminal ofence. Vordering benadeelde partj (art. 51f jo. 6:162 BW):
criminal court can decide the civil case in the same case as the criminal one as if it were a
civil court, if it does not cause a disproportonate burden and hinder the criminal trial.
Crime = tort and tort crime
Both criminal law and tort law aim at controlling society by ofering some form of redress to
victms of behaviour that consttutes a crime/ttort and/tor redress to society at large. Both
can hold someone liable for a certain act. However, this liability difers. or tort it is the
obligaton of the torteasor to pay compensaton to the victm. Criminal courts can sentence
the wrongdoer to pay compensaton to the state for the beneft of the victm of the crime;
the state collects the compensaton and passes it on to the victm, but there are also other
means. Another diference lies in the fexibility of the system. In criminal law, the principle of
legality contains a lex certa component, which asks that a criminal ofence is sufciently
precise and clear, therefore ofences can be found in acts, while tort law is more fexible.
6:162(2) provides for 3 categories:
1. Breach of a legal right
2. Acts or omissions that violate a statutory duty
3. Acts or omissions that violate a rule or norm of unwriten law pertaining to proper
social conduct -> shows the open character of tort law
Crimes and torts are related on a substantve level. There are three levels. On the frst level,
the functon of criminal law and tort law is to deal with reprehensible behaviour. They ofer
to control the society by ofering some form of redress. There is a diferent focus of redress,
claimant v. society. Secondly, they are related on the level of basic concepts and
requirements. The third level is how the elements which make up the ofences and torts are
interpreted. The relaton between tort and crime is not dealt with in terms of equality or
hierarchy. They are two distnct areas of law that intertwine at some points, which follows
from the principle of autonomy. In Roman and Medieval law there was no distncton
between tort and criminal law. With the rench dominaton over the Netherlands and the
introducton of the Napoleonic Codes, the distncton between tort and crime arose.
According to the principle of autonomy law has its own functons and purposes from which it
follows that criminal courts can and must decide on crimes themselves and this demands an
autonomous interpretaton of the elements of ofences. This principle stems from the
, development of tort law and criminal law as separate areas of law. The existng connectons
between tort and crime have been triggered by reason of pragmatsm and/tor coherence.
Criminal court civil court
The victm had traditonally been barred from having a distnctve place at the criminal trial.
However, compassion had driven the Dutch to allow victms to bring small claims through
the adhesion procedure. In the 1990s a shif became manifest. Victms are stll not granted a
procedural positon on equal footng with the defendant or prosecuton, he is acknowledged
as a partcipant, but not as a party. The criminal court can ignore a relevant ruling of a civil
court and vice versa and it can postpone a decision to await a decision of a civil court on a
mater which is important for its case, to prevent diferent interpretatons of law. rrocedural
regimes for compensaton can overlap. A criminal ruling provides compelling evidence in civil
cases. It is the legislature who decided whether a partcular rule in an act or statute will
belong to the civil or criminal law. Art. 51f Sv allows a victm of a crime who sufered damage
directly from the crime to bring a claim for that damage before a District Court. The victm is
joining the criminal proceeding as the injured party. A remedy a criminal court can impose
once there is liability to pay damages to the victm of the crime according to the rules of tort
law is the compensaton order, the order to pay compensaton to the state for the beneft of
the victm of the crime. A second remedy is that the criminal court can instruct the return of
stolen property. Why are tort and crime procedurally connected in Dutch legislatonn irst,
the Dutch legislaton has been receptve to the victmms wish for compensaton. Second, the
plan to introduce a new behavioural order can be mentoned.
Criminal conviction = civil evidence
A criminal convicton is strong evidence in a civil proceeding. However, it is not conclusive,
because it is always allowed to bring counterevidence. A criminal act is also considered to be
a tort, so the civil judge will basically answer the same questons as the criminal judge. The
concept of causaton shows common ground, but a key diference is that stricter standards
of proof are applied in criminal cases. The reason for this is that criminal law works as a tool
of last resort. The Criminal Code provides for general provisions that apply to all ofences,
and these defences are also recognized in tort law. The standard of proof is lower in criminal
cases. The standard of proof in civil cases refers to the extent or degree of certainty or
probability that the evidence delivered by the litgants must generate in the mind of the
judge when deciding an issue of fact. If the required degree is reached, the court can say it is
convinced of the truth of a certain factual propositon and decide the case accordingly.
Conclusion
When it comes to the relatonship between tort and crime, the Dutch legal system seems to
be in search of a rather efcient way of handling the overlap between tort and crime. This
manner of operaton is consistent with legal standards and values like unity of the legal
system and coherence.
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