Sanctions: Civil vs Criminal - Essay Example

Sanctions: Civil vs. Criminal Introduction: Regardless of its form and ideology, every government around the world enforce the laws and maintain order through the judiciary. Whether a country has a democratic or authoritarian regime, a monarchy, dictatorship, presidential or parliamentary form of government, they all have their respective versions of the judiciary. The judiciary, whether represented by a jury panel, a single judge or a council of justices, hear and decide cases brought by the members of the population. The judiciary settles disputes and maintain order among the members of society. The judiciary hears and decides two main types of cases; these are the criminal cases for violations of the duly instituted penal laws of the land and the civil cases for the settlement of various disputes between and among the members of the population. There is little room for interpretation insofar as the criminal cases are concerned because it is based on concrete penal laws etched in stone. On the other hand, civil cases are a wide open battle field where people fight over disputes involving contracts, torts, and human or property relations among others. Both civil and criminal cases end with a judgment promulgated by the judicial authority hearing the case. On the one hand, criminal cases are decided with the declaration that the accused is either guilty or not guilty of the offence as charged. If the accused is guilty, he is sentenced to community service, imprisonment of even death penalty. The victim is then vindicated. On the other hand, civil cases are decided with the declaration that the claimant is either entitled or not to the damages prayed for. If the claim is granted, the defendant is ordered to compensate the claimant for the loss that he has suffered. The aggrieved party is then compensated. In essence, although they are of different nature and gravity, both civil and criminal cases carry sanctions imposed upon the wrongdoer and compensation unto the party that has suffered losses. This is the basis for the famous statement which says, “the difference between civil and criminal sanctions is that the former are designed to compensate and the latter are designed to punish’. In this view, this paper shall look into the nature and defining features of both civil and criminal sanctions and then examine their similarities and differences. Civil Sanctions Sanctions in civil law are penalties imposed by courts or other quasi-judicial bodies which are designed as a deterrence for violations of non-penal laws as well as to provide incentives for obedience with the law, and other rules and regulations. Civil sanctions are used to provide compensation in torts for personal injuries and damages as well as in the matter of the child protection system. These civil sanctions pursuant to the child protection system include care orders, non-molestation orders, injunction orders and the recent addition in this area, the anti-social behaviour order. Admittedly, the concept of civil sanction is complex and requires a delicate balancing act between and among conflicting claims, rights and interests. These sanctions are imposed in cases involving disputes in tort, contracts, family law, property law, employment law and public law. All these areas involve civil remedies which are very diverse. Many of the remedies can only be granted by specific courts therefore it is essential that any civil claims are brought using the correct procedure in the appropriate court otherwise, the complaint will just be dismissed due to improper venue or jurisdiction. Civil remedies are orders issued by the court to satisfy the demands of claimants who have successfully proved their cases. Interestingly, in actual practice, it is significant for a party to foresee the possible remedies available to them so that they could properly decide what legal proceedings to pursue and whether or not to just settle the case amicably out of court. In other words, when a party can foresee the possible outcome of the case, they are in a better position to decide whether it is more cost-effective to just settle the case and end all agony or to proceed with the full ramifications of a civil suit. This is true for both the claimant and defendant in a civil case. Needless to state, the damages awarded in civil cases are determined based on its equivalent amount in money. However, such an award cannot truly compensate for all the losses a claimant have had and might suffer. A lost limb or body part may be replaced by prosthetics bought by the award in damages but the injured person is not fully returned to his original state before the loss of such body parts. The courts merely estimate the magnitude of the loss incurred in terms of money and then award them to the injured party in the hope that such an award may assuage the suffering that he has and is experiencing as a result of that loss. The majority of claimants who start an action in contract or tort are seeking financial compensation by way of damages for the wrong they have suffered. The aim of damages for breach of contract and tort is to put the claimant as nearly as possible into the position he/she would have been had the contract not been breached or if no tort had been committed. This simply means that compensation is the main function of an award of damages in the civil law. In calculating award the court seeks to fully compensate the claimant for their losses. When a party makes a claim in personal injury action the compensatory damages are divided into special damages and general damages. Special damages are awarded for losses which the claimant can quantify and which have already been incurred at the date of trial. General damages are awarded for losses which cannot be precisely calculated such as loss of future earnings and compensation for pain and suffering. However, compensation is not always possible or appropriate. For instance, a person enters into a contract with an artist for the latter to sell a unique painting to the client. When the contract is breached, no amount of money, in the form of damages, will put right what has gone wrong, because only the painter himself can produce the contracted painting. Under these circumstances the very nature of the legal remedy of damages makes it totally inadequate. Therefore equity steps in and orders the painter to perform his end of the contract, that is, to sell the unique painting. This equitable remedy is known as specific performance. Another significant application of the concept of civil sanction is the use of this remedy in the child protection system. Civil sanctions are used to justify state intervention in the family unit where the state removes the endangered child from the family and places him in the care of the state. There are many civil remedies that protect children from abuse and neglect. An example is the Non-molestation order under the Family Law Act 1996. It is commonly used in cases of domestic violence. Its purpose is to protect people who experience domestic violence, threat, intimidation and harassment. Civil sanctions are also used to control anti-social behavior (ASBO) as provided under Section 1 of the Crime and Disorder Act of 1998. The order can be used with anyone who is 10 years of age or over and is behaving in a manner that causes distress or harassment. An ASBO stops the person from going to particular places or doing particular things. Criminal Sanctions A person found guilty of a crime will be subjected to criminal sanction. There is a wide range of possible sentences that could be imposed with different purposes. The three sanctions that epitomise the main areas of criminal sanctions are monetary punishment, community-based penalties, and restriction of the person’s liberties. There are various principles that justify particular punishments being pronounced. The five main penal theories are retribution, reparation, deterrence, rehabilitation and incapacitation. There are almost as many different forms of punishment as there are number of offences and the myriad of criminal sanctions continues to expand. This is because over time academics and politicians have sought to tackle the problem of crime. The solutions usually revolve around the punishment that is meted out to the convicted individual. Retribution is the practice of "getting even" with a wrongdoer where the suffering of the wrongdoer is seen as good in itself, even if it has no other benefits. It seeks to ensure that the offender receives the same level of harm as inflicted upon the victim. It also seeks to ensure that the punishment fits the crime. This is the basis for the harsh punishments imposed in some jurisdictions where theft is punished with the cutting of the hand. Reparation is used mainly for minor offences where punishment may take the form of the offender "righting the wrong". An example is the order to restore a damaged property to its original state. Deterrence is a measure of prevention to those who are contemplating criminal activity. This deterrence is also intended to prevent a re-offence by the offender by imposing a punishment that he/she wouldnt want to experience again. If this is the chief reason for punishment, the sentence may appear over-harsh when assessed against some of the other reasons. Rehabilitation is designed to reform and rehabilitate the wrongdoer so that they will not commit the offense again. This is distinguished from deterrence, in that the goal here is to change the offenders attitude to what they have done, and make them come to see that their behavior was wrong. Rehabilitation is most appropriate where an offender has an identifiable problem that leads him/her to commit crimes. Incapacitation is a justification of punishment that refers to when the offender’s ability to commit further offenses is removed. This is a forward-looking justification of punishment that views the future reductions in re-offending as sufficient justification for the punishment. This can occur in one of two ways; the offender’s ability to commit crime can be physically removed, or the offender can be geographically removed. Nowadays, the sentencing of the convicted person depends partly on a combination of factors including the nature of the crime for which they have been convicted, the offender, the offender’s response to any previous sentence and sentencing guidelines. Civil Sanctions vis-à-vis Criminal Sanctions Both the civil and criminal laws consist of sets of rules, which create rights and obligations, powers and duties. However, the essential difference is that in civil law the main focus is in putting right those things which have gone wrong while in criminal law the main focus is on what should be done with the wrongdoer. Stated otherwise, civil law is concerned with rectifying the wrong while criminal law is concerned with reforming or disciplining the wrongdoer. Civil sanctions are issued with the welfare of the claimant in mind while the criminal sanctions are issued after considering the gravity of the offence and the safety of the general public. Civil sanctions are issued in connection with civil cases while criminal sanctions are meted out in a criminal prosecution. Civil sanctions are designed to return the claimant to his original state before the wrong while criminal sanctions aims to keep peace and order in society by punishing offenders of the law. Finally, civil sanctions are issued to compensate for the loss of a particular individual while criminal sanctions are imposed to ensure the peace and safety of the society as a whole. In the former, the defendant violates the rights of the claimant while in the latter the offender violates the laws of the land and the rights of the entire society. This is the reason why criminal cases are brought in the name of the people. Conclusion In conclusion, civil and criminal sanctions may be different in terms of their basis for implementation as well as for their designed purposes. However, both systems serve only one greater purpose that is to maintain the peace and order in any society. References: Wilkins, G., Hayward, P. and Johnson, K. (2000) Monitoring Offences: England and Wales 1989 to 1999, The Home Office. Read More