THE PROBLEM OF DELEGATING AUTHORITY TO THE EXECUTIVES TO DEFINE CRIMINAL OFFENSE OR CRIMINAL PENALTY

Abstract

This article aims to study the issues raised from the delegation of authority from the legislative branch to the executive branch allowing them to define criminal offense or criminal penalty. In practice, the legislative branch may not be able to enact the laws covering every area, but simply providing the general principles. As for the details of each regulation, it is more appropriate to allow the executive branch as actual operators of their organisations to further formulate the rules in line with their changing contexts and technical expertise. However, granting the authority for the executive branch to define the criminal offense or criminal penalty could also be considered as the violation of the freedom of people. This has raised concern over the appropriateness of such delegation of authority. In this regard, this study employed relevant concepts and theories to analyze the issue of delegating the authority to the executive branch to define criminal offense or criminal penalty. The author also conducted a comparative study of such case in France and Germany and proposed both conceptual and practical solutions to the circumstance.