JUDE Jean-Michel (dir.), Economica 2011, coll. Etudes juridiques, vol. 38, 180 p.

La clémence et le droit

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Originally, clemency is a manifestation of the goodness, mercy and greatness of soul of the sovereign. In a discretionary manner, the sovereign exercises his right of grace on his subjects. The Constitution provides for this prerogative of the President of the Republic (art. 17). The legislature, through amnesty laws (art. L 133-9 of the Criminal Code), may also exonerate the guilty parties or expressly empower the judge to show clemency in certain circumstances (art. 1244-1 of the Civil Code). The spirit of leniency also prompts the judge to impose a lesser sentence than that incurred by the guilty party or even to exonerate him or her from any penalty. In recent years, other expressions of inclination to pardon wrongdoing and to soften penalties have tended to develop, since clemency becomes over time an instrument of the law, a kind of bargaining chip for winning in a conflict of interests. There are many examples, such as appearances on prior conviction in criminal law, leniency proceedings in competition law, which encourage the denunciation of illegal agreements, or even in tax law, the possibility offered to citizens who hold undeclared assets abroad to regularize their situation and thus avoid certain proceedings... Leniency is then no longer free of charge, it becomes strategic and political. The term leniency is then more akin to haggling with the risks of abuses inherent in this type of process. Can we still talk about leniency? Isn’t the word used as a subterfuge to conceal transaction processes, which are certainly effective and inexpensive, but which some consider amoral or even immoral? This subject, curiously little addressed by legal doctrine - unlike the literary world, which has long been studying it through works such as Cinna or the Clemency of Augustus by P Cornelius or The Merchant of Venice by W Shakespeare - will interest academics as well as many privatist and publicist practitioners.

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Author

  • University of Paris I Panthéon-Sorbonne

Quotation

Stéphane Rodrigues, La clémence et le droit, September 2011, Concurrences N° 3-2011, Art. N° 38243, p. 239

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