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Payment of a Fine by a Person Other than the Defendant—Law and Policy
Published online by Cambridge University Press: 12 February 2016
Extract
The main modes of punishment in our penal system are imprisonment, suspended imprisonment and fines, the last being the most frequently used. Fines as a mode of punishment becomes more and more popular the more it is realized that a short sentence of imprisonment often serves no useful purpose and is sometimes even harmful. Furthermore, as criminal law expands into new areas, as a means for the enforcement of administrative regulations, on public health, road traffic, national economy, etc., fines are used more since in many of these cases imprisonment is not regarded as a suitable sanction.
Every one of the known aims of the penal sanction (retribution, deterrence, resocialization in their various aspects or, possibly a mere warning can be best achieved when the sentence is inflicted upon the defendant personally. There is no point, for instance, in imprisoning another person in place of the defendant or placing another on probation. In the same way fines too should be paid by the offender and not by anyone else.
In practice, the problem of another person taking upon himself the defendant's penalty arises mainly in respect to fines, because it is not likely that one person would be willing to suffer imprisonment on behalf of another and furthermore, the means of identification used by the prison authorities makes this extremely difficult.
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References
1 Probation is not considered a punishment but a mode of treatment (see A.G. v. Weigel (1963) 17 P.D. 712; A.G. v. Weigel (F.H.) (1963) 17 P.D. 2358).
2 Middendorf, , The Effectiveness of Punishment (New York, 1968) 102.Google Scholar
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6 On the other hand the discussion in this paper applies also to an obligation to refrain from committing an offence according to sec. 35 of the Penal Law (Modes of Punishment) (Consolidated Version) 1970 (24 L.S.I. 112) which is in fact a suspended fine. The liability of the guarantors under this section is additional to the defendant's liability and does not relieve the defendant from his own obligation to pay.
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10 An interesting example is that of Askey v. Golden Wine Co. Ltd., supra n. 4.
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12 As amended by the Criminal Code (Amendment no. 35) Law 1973.
13 (1952) 6 P.D. 854.
14 Ibid., at p. 857.
15 Ibid., at pp. 858–9.
16 (1954) 8 P.D. 785.
17 We deal here only with Goitein J.'s opinion, because according to Cheshin J. it is impossible to set down any fixed rules by way of a definition (ibid., at pp. 801 and 803).
18 Goiten J. mentioned further limits but these do not concern us here.
19 Ibid., at p. 817 between letters B and C.
20 Ibid., at p. 801.
21 In his minority opinion, Silberg J. relies on the Levy Bornstein case. In his opinion the offence is committed when “as a consequence of the defendant's behaviour a public authority does or is liable to do acts which cause mischief to the public”. This definition is broad enough to apply to the situation here considered.
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24 Sec. 257 of the Criminal Code 1879 which reads as follows:
“Wer nach Begehung eines Verbrechens oder Vergehens dem Täter oder Teilnehmer wissentlich Beistand leistet um denselben der Bestrafung zu entziehen”.
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30 Interpretation Ordinance [New Version] sec. 3 (1 L.S.I. (N.V.) 5).Google Scholar
31 It may perhaps be of interest to note that no parallel offence exists either in England or former British territories in Africa, India, Canada or New Zealand.
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33 (1953) 7 P.D. 790, 797.
34 (1965) (IV) 19 P.D. 274.
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40 Cf. text supra p. 331.
41 RGSt 65, 308, 310.
42 Bay OB LG 2 St 693/63 (The judgment is discussed in 1964 N.J.W. 2120.
43 The court based its decision on former decisions of the Federal Supreme Court of the Reich and of the Supreme Courts of Bavaria and Hamburg (RGSt 59, 51–2; Bay OB LGSt 51, 549 OLG Hamburg H.E. St 2 348, 349).
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46 Chitty, , Contracts (London, 23rd ed., 1968)Google Scholar sec. 937; Osman v. Rally Moss Ltd. (1970) 1 Lloyd Rep. 313, 316, 318, 319–320.
47 See supra n. 46. The same approach putting the stress on the question of fault in the concrete case can be found in Lord Denning's dictum in Askey v. Golden Wine Co. Ltd. et al. [1948] 2 All. E.R. 35, 38.
48 It must be noted that the Osman decision deals with two causes of action, namely contracts and torts; but the court does not distinguish between the two in respect to the problem under discussion.
49 (1965) (I) 19 P.D. 419. This case was decided before the Contracts (General Part) Law was enacted.
50 Strong v. Dawtry [1961] 1 W.L.R. 841.
51 A similar approach which does not distinguish between ordinary and strict liability offences can be found in Note on “Liability Insurance for Corporate Executives” (1967) 80 Harv.L.R. 648, 662.
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60 Note on the “Deductibility of Illegal Expenses under sec. 162 of the Internal Revenue Code, A Justification for Vagueness” (1956–7) 66 Yale L.R. 602, 606, 610.
61 Ozar Le'ashrai, see supra n. 59 at p. 2220.
62 Even assuming that a fine is an “obligation” to which the Contracts (General Part) Law, 1973 applies (see sec. 61 (b)), it may not be fulfilled by a stranger since according to the nature of the obligation… the debtor must fulfil it personally” (sec. 40).
63 (1959) 14 P.D. 1882; 3 S.J. 266. This case was amply discussed by S. Ginossar (cf. supra n. 3). As already mentioned even in strict liability offences a person may act with a mental element in particular case (see also, Bein, , “Sentencing Problems in Strict Liability Offences” (1972) 7 Is.L.R. 149, 152).Google Scholar
64 Sec. 26 of the C.C.O.
65 Penal Law Revision (State Security) Law, 1957, sec. 5(c) (11 L.S.I. 187).
66 We shall not discuss what relatives should be included in the exemption.
67 As to cases where the relationship between family members is such that the defendant is indifferent to “pain” caused to his relatives paying the fine, see text infra p. 344.
68 See supra n. 33 and text thereto.
69 Sec. 106 of the Companies Ordinance and r. 2 of the Cooperative Societies Regulations (Balances, Books etc.) 1951.
70 A similar method is used in the Election (Modes of Propaganda) Law, 1959, sec. 17 (13 L.S.I. 148).
71 Save perhaps in income tax law, for even the payment of a fine levied on the assessee personally is not deductible from income as expenses. See supra end of n. 59.
72 This system exists in Sweden, Finland, Switzerland and Cuba (see Westen, “Fines Imprisonment and the Poor: Thirty Dollars or Thirty Days” (1969) 57 Calif. L.R. 778, 813).CrossRefGoogle Scholar Germany has adopted this policy in the Penal Reform Law which will come into force next year (see Metzger-Blei, , Strafrecht I, Allgemeiner Teil (14 Auf., München, 1970) 339.Google Scholar For further discussion of the new German Penal Code see Ryu and Silving, “Misleading Issues in Criminal Law Codification” supra p. 311.
73 It is possible that such a mode of punishment already exists in relation to juvenile delinquents: see the general powers given to the courts under Youth (Trial, Punishment and Modes of Treatment) Law, 1971, sec. 26(6) (25 L.S.I. 133).Google Scholar