LEGAL REGULATION OF FINES: SPECIFICITY OF THE TERM SEMANTICS
Published: Collected research articles, Bulletin of Russian Communication Association "THEORY OF COMMUNICATION AND APPLIED COMMUNICATION", Issue 1 / Edited by I.N. Rozina, Rostov-on-Don: Institute of Management, Business and Law Publishing, 2002. - 168 p. P. 149-152
The notion "fine" is considered from an intercultural angle. Its specificity in criminal law of Great Britain, France, and Germany is discussed. Two opposite trends in the semantics and pragmatics of the term are singled out.
The problem of meaning and adequate interpretation of terms must be considered in relation to the intercultural characteristics of term systems. Leaving this (obvious for communication scholars) aspect aside results in communication breakdowns, in misunderstanding or in incorrect treatment of terms or - even worse - in unintentionally ambiguous use of one and the same term. As a result, there appears a fallacy of amphiboly (cf.: Eemeren, Grootendorst, Henkemans, 1996: Ch.3) in the dialogue. This specificity, quite obvious for a number of disciplines like ethnolinguistics, is often out of scope in other fields like jurisprudence. In the latter, the meaning of terms is inalienably linked with culturally specific features of the term systems. This factor can be decisive in research done by graduate and post-graduate law students. That is why the information given in this article can be important. The subject of the article - the notion of fine, its meaning and the specificity of its use in European criminal law - has been unsufficiently studied in Russian legal science so far. This appears to make the article still more useful for specialists in law.
The legal system of any country reflects its legal, economic and socio-political traditions. That makes the law of any country unique. Still, the legal systems of European countries have common features (institutions, norms, notions) which is conditioned both by the continental (or, Anglo-Saxon) legal system, and by the integration processes which have begun in Europe since the second half of the XX century.
Among the unifying factors in material and procedural European law one can mention the development of communication systems, tourism, trade, and various forms of international cooperation. Knowledge of the contemporary state of the criminal law of leading European countries is vital for lawyers, especially, for law students, because it will help understand the specificity of Russian criminal law.
Nowadays, European states tend to base their criminal law on the principles of humanism and the priority of international law. The criminal law of western European countries uses various forms of non-imprisonment penalties. Imprisonment is regarded as non-humane and ineffective for the protection of people from criminals. In most developed European countries, the most popular criminal penalty is fine. Many lawyers think that the use of fine is good for the country because:
unlike imprisonment, this penalty does not make additional negative influence on a criminal;
- fine is a source of additional money for the state;
- the use of this kind of penalty does not take much money off the state budget.
These factors lead to wide use of fines in Western Europe. Fine legal regulation in these countries has a number of common features, which will be considered in what follows.
In English criminal law, fine is used both as a principal and as an additional penalty for a wide range of crimes. Minimal and maximal levels of fine sanctions are not written in law, and judges are free in their application. According to Article 31(1) of the Code of Criminal Courts (1973), a court can issue an order to postpone the date of fine payment or even to pay it in parts, if the convict so requests. In those cases, the order contains the dates of payment.
According to the law, if the convict does not observe the terms of the order, the courts must immediately establish the length of a substitute imprisonment penalty. Its total length must not exceed twelve months (Golovanova 2001:39). More than 1,5 million fines are used by English courts yearly for various crimes. Every third crime is punished by a fine; not only petty crimes, but also felony (which could lead to capital punishment until the 1800s) are punished by fines (Krylova, Serebrennikova 1998:167-168).
The Criminal Code of France (Articles 131-133) treats the fine as a principal correction penalty applied not only to individuals, but also to juridical persons. It can be used as an additional penalty together with imprisonment. There are two kinds of fine: daily fines and monetary fines.
Daily fines are imposed on individuals; the latter must pay the sum, the total amount of, which is based on convict's daily wage rate multiplied by a certain number of days. The daily wage rate is defined by court basing on how much the convict earns and spends a day. In any case, the amount of daily wage rate cannot exceed 2,000 francs. The number of daily fines is defined by a judge depending on the severity of the crime and its concrete features; the maximal length of the fine is 360 days.
The monetary fine is imposed on individuals and juridical persons as a principal penalty for a crime. Its amount depends on the severity of the crime. There is no minimal amount of the fine, and the judge can impose it differently basing on the circumstances of a crime and on the income status of a convict. The maximal amount of the fine for individuals must not exceed 10,000 francs. For a juridical person the maximal amount of the fine is 50,00 francs. According to Article 132-20 of the Criminal Code of France, the court can sentence a convict to a monetary fine or a daily fine paid in parts for a term that must not exceed three years. That kind of sentence can be imposed in case of serious medical, family or professional circumstances that make immediate payment impossible.
In sentencing to a fine the court must define the term of imprisonment for a convict if the sentence is not observed strictly by the convict. The terms of a substitute penalty depend on the amount of the fine and can vary from two days to two years (Articles 749-750 of the Criminal Procedural Code of France). The Code rules out such substitution for individuals who were younger than 18 at the moment of committing a crime and for those who are older than 70 at the moment of conviction.
In Germany, fine has become very widely used since the 1970s. According to M. Norval and M. Tonry, the period 1970 - 1980 witnessed considerable increase of fine sentences at the expense of imprisonment sentences. Three thirds of crimes against property and two thirds of crimes against person were punished by fines (Norval, Tonry 1990:143-144).
As a principal penalty, fine is imposed in Germany for misdemeanor (paragraph 2.12 of the Criminal Code of Germany). Misdemeanor is an unlawful action punished by imprisonment of one year or less or by fine. The fine is measured in daily wage rates and varies from 5 to 360 daily wage rates. According to the Criminal Code of Germany, the minimal amount of the rate is 2 German marks (about О1), and the maximal one is 10,000 German marks (aboutО5,000). The daily wage rate is determined by a judge with respect to the circumstances of a crime, the character of the accused, his/her income and sources of revenue, property status, presence of dependents, etc. In theory, the daily wage rate is daily income except means of subsistence of the convict and his/her family. The rate is calculated on an average net income basis, which the accused has or could have a day. This method of calculation makes the fine equally repressive for convicts with various financial statuses.
The criminal law of Germany allows adjournment and installment of fine payment if the convict cannot pay immediately due to his/her personal circumstances or financial position. In case of evasion of the execution of court order the fine is substituted by imprisonment with one daily wage rate corresponding to one day of imprisonment. In other words, in criminal law, daily fine costs daily freedom.
As has been mentioned above, the monetary fine is a principal penalty; still, Criminal Code of Germany tolerates use of fine together with imprisonment in exceptional cases "if a person became or tried to become rich through the crime" (§41 of the Criminal Code of Germany). Fine as supplementary punishment to imprisonment is rather an exception and is used very seldom (Koehler 1991).
German criminal law stipulates the use of property fine as a punitive measure, which cannot be found in Great Britain and France. It is a new kind of penalty introduced by the Law against illegal drug trade and other forms of manifestation of organized crime (July 15, 1992). The property fine serves only as supplementary punishment with the purpose to deprive the criminal of the profit resulting from the illegal activities of organized groups (Serebrennikova 1996:61). Unlike the monetary fine, the property fine is not calculated by a system of daily wage rates, but is payment equal to the cost of the criminal's property. The law stipulates that the property fine could be substituted by up to one-month imprisonment if the convict does not pay.
Our analysis of present-day criminal legislation of three post-industrial Western European countries leads to the conclusion that alongside with differences, there is much in common in legal regulation of fine in Great Britain, France, and Germany. Thus, fine is imposed for a wide range of actions, and its application does not necessarily depend on the severity of a committed crime. Fine is used both as principal and as supplementary punishment. Methods of calculation of fine differ from country to country, but criminal law in the countries considered stipulates that the amount of fine depend on consideration of various factors such as the proportionality of punishment to the severity of the crime committed, the financial status of the accused, and presence of criminal's dependants. In Great Britain, France and Germany, the law stipulates substitution of a fine penalty to imprisonment in case of the convict's evasion to pay.
As has been demonstrated, taking into consideration cultural factors in treating and using the notion of fine enables us to reveal the specificity of the term semantics in the environment of the legislation of Great Britain, France and Germany. On the other hand, we can conclude that in spite of the national peculiarities , criminal laws of these leading countries of Western Europe have much in common in the legal regulation of fine, which testifies to the trend to unification of criminal law.
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- Krylova, N.Y., Serebrennikova, A.V. Ugolovnoye pravo zarubezhnykh stran (Anglii, Ameriki, Frantsii, Germanii) ("Criminal Law of Foreign Countries ((England, USA, France, Germany)"). Moscow, 1998. 208 p.
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- Eemeren, F.H., Grootendorst, R., Henkemans, F. Fundamentals of Argumentation Theory: A Handbook of Historical Backgrounds and Contemporary Developments. Mahwah, N.J.: Erlbaum, 1996. 424 p.
- Koehler, B. Gerechte Geldstrafe statt Konfiskatorischer Vermoegenssanktion // Juristenzeitung, 1991. N. 797.
- Morris, N., Tonry, M. Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System. New York: Oxford University Press. 1990. 387 p.
Text in Word
VASSILIEVA Tatyana V.
Instructor, Department of Criminal Law Studies,
Moscow Institute of Economics and Humanities,
Kaluga Branch, Kaluga, Russia,
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