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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

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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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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1974

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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

3 This was recently suggested by Ginossar, S., “Autonomy of Corrective Law” (1974) 9 Is.L.R. 56–7, 60.Google Scholar

4 See Lord Denning's dictum in Askey v. Golden Wine Co. Ltd. et al. [1948] 2 All E.R. 35, 38.

5 Cf. Schönke-Schröder, , Strafgesetzbuch Kommentar (15 Aufl., München, 1970) 1286Google Scholar and the decision of the German Federal Court, BGHZ 23, 224.

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.

7 Weisman, J., “The Kibbutz: Israel's Collective Settlement” (1966) 1 Is.L.R. 99 at 100, 108.Google Scholar

8 Weisman, ibid. at p. 112.

9 See e.g., the Commodities and Services (Control) Law, 1957, sec. 39 (c) (12 L.S.I. 38), and the Planning and Building Law, 1965, sec. 253 (2) (19 L.S.I. 330).

10 An interesting example is that of Askey v. Golden Wine Co. Ltd., supra n. 4.

11 For a negative reply, see Grünhut, , Penal Reform (Oxford, 1948) 6Google Scholar; but it is doubtful whether the author's research was meant to be exhaustive in relation to the question under discussion.

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.

22 Williams, G., Criminal Law, The General Part (London, 2nd ed., 1961) 409, sec 138.Google Scholar

23 Thus attempted manslaughter under sec. 222(a) of the C.C.O. and attempted manslaughter under secs. 212 and 29(b) of the C.C.O. (and see Der'i (1960) 14 P.D. 233, 241,; or larceny by intimidation under 263 (2) (a) (II) of the C.C.O. and robbery when it takes the form of intimidation (see definition of robbery in sec. 287 of the C.C.O.) or procuring another to commit perjury under sec. 117 (1) and 23(d) of the C.C.O. and subornation of witnesses under sec. 117 (2) (before its revocation by Criminal Code (Amendment no. 35) Law 1973).

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”.

25 See Maurach, , Strafrecht, Besonderer Teil (Karlsruhe, 1964) 684.Google Scholar

26 See RGSt 20, 232.

27 The offence of Begünstigung is defined in sec. 305 of the Swiss Code and see Schwander, , Schweizerische Strafgesetzebuch (Zurich, 1952) 153Google Scholar. Thorman und Von Overbeck, T., Das Schweizerische Strafgesetzbuch (Zurich, 1940) vol. II, p. 433.Google Scholar

28 See infra text at p. 341.

29 The offence as redrafted by the Israeli legislator is broader than the former offence as defined by the Mandatory legislation which was called “conspiring to defeat justice and interference with witnesses” (the present offence has nothing to do with conspiracy).

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.

32 As to the practical difficulties involved, see Samuels, A., “The Fine—The Principles” [1970] Crim. L. R. 201, 209Google Scholar; Thomas, , Principles of Sentencing (London, 1970) 220Google Scholar; Hehtig, Von, Die Strafe (Berlin, 1954–5) vol. II, p. 406Google Scholar says that American courts even stopped sentencing prostitutes to fines because they felt unable to avoid the payment thereof by the syndicates of crime. See also Note on “Fine and Fining—an Evaluation” (1952–3) 101 U. of Penn. L.R. 1013, 1019.

33 (1953) 7 P.D. 790, 797.

34 (1965) (IV) 19 P.D. 274.

35 (1953) 7 P.D. 472, 473.

36 Unreported, cited by Kidron, , The Law of Road Transport (Tel-Aviv, 1960, in Hebrew) sec. 90 p. 159.Google Scholar

37 [1965] Crim. L.R. 121.

38 [1965] Crim. L.R. 252.

39 (Unreported) cited in Thomas, Principles of Sentencing, op. cit. supra n. 32 at p. 222.

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).

44 Cf. Packer, , The Limits of the Criminal Sanction (Stanford, 1968) 40.Google Scholar

45 Sec. 30 of the Contracts (General Part) Law, 1973. (For English translation of the Law, see (1974) 9 Is.L.R. 282). As there are no decided cases on the interpretation of this section, we assume the position remains the same as in the English and Israel cases referred to hereinafter.

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.

52 See supra n. 4.

53 Sec. 113(1) of the Food and Drugs Act, 1955 and Smith, and Hogan, , Criminal Law (London, 2nd ed., 1969) 70.Google Scholar

54 Tedeschi, et al. , The Law of Torts (Jerusalem, 1970, in Hebrew) per Barak §196, pp. 341–2.Google Scholar

55 Cf. Samuels, A., “The Fine—The Principles” [1970] Crim.L.R. 201, 209.Google Scholar

56 As to the fiduciary duties of directors, see Felman, , Israel Compay Law—Theory and Practice (Tel-Aviv, 1960, in Hebrew) 335.Google Scholar

57 Sec. 77 of the Companies Ordinance (and see Felman, , Israel Company Law-Theory and Practice (Tel-Aviv, 1960, in Hebrew) 332.Google Scholar The corresponding English provision is sec. 205 of the Companies Act, 1948 (formerly sec. 152 of the Companies Act, 1921). As to the situation in the U.S. see Note on “Indemnification of Directors—The Problem Posed by Federal Securities and Antitrust Legislation” (1962–3) 76 Harv. L.R. 1403.

58 Cf. “Liability Insurance for Corporate Executives” (1967) 80 Harv.L.R. 648.

58a Felrnan, , Law of Cooperative Societies (Tel-Aviv, 1951, in Hebrew) 77 and 158.Google Scholar

59 Witkon, and Ne'eman, , Tax Law (4th ed., 1969, in Hebrew) 1567Google Scholar; Ozar Le'ashrai Shel Hapoel Hamizrachi v. Assessing Officer (1961) 15 P.D. 2213; Kupat Milveh “Haole” v. Assessing Officer for Large Enterprises, Tel-Aviv (1963) 17 P.D. 533. It should be noted that an opposite decision would at least partly shift the burden of paying the fine from the defendant to the State.

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