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Appraising Strict Liability$
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Andrew Simester

Print publication date: 2005

Print ISBN-13: 9780199278510

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199278510.001.0001

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Approaches to Strict and Constructive Liability in Continental Criminal Law

Approaches to Strict and Constructive Liability in Continental Criminal Law

(p.237) 10 Approaches to Strict and Constructive Liability in Continental Criminal Law
Appraising Strict Liability

John R. Spencer

Antje Pedain

Oxford University Press

This chapter explores the Continental position with a view to explaining the differences and similarities identified. Focusing on the French and German systems, the first part describes the doctrinal positions in each of these jurisdictions and illustrates their practical operation in reaction to situations in which strict or constructive liability arises under English criminal law. The second part comments on the findings: to what extent are the Continental approaches really different? What has historically driven these systems to move away from strict and constructive liability? Can its remnants be reconciled with the rationales offered for avoiding it? And to the extent that Continental criminal law does without crimes of strict or constructive liability, how does this affect the law's capacity to meet its preventative and desert-oriented objectives? The chapter concludes with some observations on the merits and limitations of the Continental approach.

Keywords:   Continental law, criminal liability, strict liability, French law, German law

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