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Antragsdelikt

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Category of offense which cannot be prosecuted without a complaint by the victim

In the criminal law of some countries with a civil law system, an Antragsdelikt (plural Antragsdelikte), "no trial without a complaint", is a category of offense which cannot be prosecuted without a complaint by the victim. The same concept has been adopted in Japanese law under the name shinkokuzai (Japanese: 親告罪), in South Korean law under the name chingojoe (Korean: 친고죄), in the law of Taiwan (both during the early Republic period and post-1949 Taiwan) using various terms, in Dutch law under the name klachtdelict, in Belgian law under the name klachtmisdrijf/crime de plainte, in Finnish law under the name asianomistajarikos and in Indonesian law under the name delik aduan.

Basic definition

The term comes from the German language words Antrag (petition) and Delikt (offense, from Latin "dēlictum"). Antragsdelikte are similar to (but not identical) in definition to Ermächtigungsdelikte. For example, in Austria the latter category includes such offenses as trespassing 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 offense will only proceed with the consent of the victim. Another term is Privatklagedelikte.

See also: Private prosecution

Antragsdelikt is somewhat analogous to the concept of a compoundable offense in Thai law, though different from that synonymous term in Malaysian law or Singaporean law.

Germany

In contrast to Offizialdelikte, major crimes which the prosecutors will investigate and bring charges with or without a victim's complaint; Antragsdelikte are minor criminal offences that will only be prosecuted under German law if the victim files a "Strafantrag" ("application" or "criminal complaint" or "request to prosecute") within a certain deadline.

The German Criminal Code (Strafgesetzbuch) lists the following as offenses 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":

German law also has a converse category of crimes which require prosecution in any case, no matter if there is a complainant or not. These offenses, or "ex officio crimes", are called "Offizialdelikte" in German (Delikte is the plural).

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 offenses 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. The draft criminal code of November 1877 used the term shinkokuzai directly in the definitions of various offenses. Under modern Japanese law, before July 13, 2017, sexual offenses such as rape or indecent assault were categorized as shinkokuzai, lest a prosecution against the victim's will result in secondary victimization or infringement of privacy.

South Korea

In South Korea, the following offenses are categorized as chingojoe:

Republic of China

Before 1949

See also: Legal history of China

The term qīngàozuì (Chinese: 親告罪) 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. 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 (Chinese: 告訴乃論之罪).

Taiwan

The Criminal Code of Taiwan, inherited from the Republic of China, uses the term Chinese: 告訴乃論; pinyin: gàosù nǎi lùn (lit. "action only if complained"). There are currently five offenses in this category, all of which are 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.

A 1999 amendment to Taiwan's Criminal Code removed indecent assault and rape (Article 239; with the exception of spousal rape) from this category, In 2003, another amendment removed cybercrime from this category and penalties were increased, likely as a response to the CIH computer virus incident where prosecutors were unable to charge the perpetrators involved because no victims came forward with a lawsuit.

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. ^ Ota 2007, p. 131
  2. Huang 2000, p. 305
  3. Hausmaninger 1998, p. 172
  4. Wanger, Markus (July 3, 2010). "Liechtensteinisches Markenschutzgesetz". Pro Business – via Google Books.
  5. Kurosawa 2006, pp. 408–410: 「親ラ告ルヲ待テ。乃坐ス。」
  6. Kurosawa 2006, pp. 420–421
  7. "改正刑法施行は7月13日 性犯罪を厳罰化" [Amended Penal Code to be enforced on July 13, penalties tightened for sex crimes]. The Nikkei (in Japanese). 2017-06-23. Retrieved 2020-07-31.
  8. Doosan Encyclopedia 2009
  9. Huang 2000, p. 313
  10. Ota 2007, p. 132
  11. "從駭電腦到愛旅行─昔日網路小子陳盈豪 - 親子天下雜誌8期 - 陳盈豪,網路世界,宅男,網路沉迷". parenting.com.tw (in Chinese). 2013-06-07. Archived from the original on 2013-06-07.
  12. "打擊駭客，不再無法可施 - 安全常識 - 法務部行政執行署嘉義分署" (in Chinese). 行政執行署嘉義行政執行處. 2005-12-10. Archived from the original on 2013-10-29.{{cite web}}: CS1 maint: unfit URL (link)

References

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