JUSTIFICATION, IMPUTATION AND PUNISHMENT (original) (raw)
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Agora International Journal of Juridical Sciences, 2014
This study aims to analyze an old concept, namely, the exercise of a right or the performance of an obligation as one of the justified causes, reintroduced into the new Romanian Criminal Code after more than 40 years. Even having a long history of existence within the Romanian criminal codes adopted in 1864 and 1936, during the communist era, once adopted the Romanian Criminal Code in 1968, in force until 1-st of February, 2014, this justified cause had been removed. At the time, the communist legislator considered as being useless to mention it among the other causes which can remove the criminal liability. The doctrine of the time argued that a criminal fact committed when carrying out an order given by the law or the competent authority didn't meet the criteria of being a crime, because it lacks the mental element, mens rea. The practice of nowadays demonstrated, the question under discussion is not so easy, the lack of mens rea cannot be always raised as a defense and therefore, the legislator realized the necessity of reintroducing the exercise of a right or the performance of an obligation as one of the justified causes. Keywords: justified causes, the exercise of a right or the performance of an obligation, the order of the law, legitimate authority, the fact imposed by the law.
Lex et Scientia Journal, 2011
The issue of imputation in penal law generated, through out the history, many controversies. The principal aim of this study is to clarify this concept, both in relation with the Romanian and foreign doctrine, and with the new provisions of the new Penal code, enforced by the Law nr. 286/2009. The new Penal code introduces, a new definition of the offence, containing the concept of "imputability". Our study is based both on the opinions of some foreign authors regarding the concept of imputability, imputation and Romanian authors.According to the Initiator (Ministry of Justice) the main justification for introducing this concept into the offence definition was that "a deed, in order to bring upon criminal responsibility, must not only to correspond with the legal description, to be unjustified, but also, the deed, must be able to be imputable to the offender; that means, the deed could be reproached to the offender. In order to discuss this concept of imputation, there are necessary some premises: the offender must have had the representation of his/her actions or inactions and the lack of any duress (the offender should not have been irresponsible, intoxicated or an under aged). In addition, the offender must have known the illicit character of the deed when committing the offence (the lack of error). Also, the study is structured in tree parts, fist beginning with the need for a definition of the offence, second part refers to the concept of offence in Romanian law; third part (the extended one) is dedicated to the essential features of the offence, with a special view on imputation/imputability.
The Admission of Guilt and its Consequences in the Romanian Legislation
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The admission of guilt has always had an attenuation effect on the punishment, meant to encourage the persons which have committed a crime to admit their deeds and to cooperate with the authorities in order to find out the truth of the case. In the last years, the legislator has used the admission of guilt to obtain a diminution of the duration of the trials and a relief of the courts of law. The Law no 202/2010 known as Small Reform Law has brought a simplified procedure for judgment the cases regarding the defendants which admit their deeds. The new settlement was a success, the procedure being used quite often. The new Criminal Procedure Code comes with a new regulation also known in other legislations as Plea bargaining. The simplified procedure for judgment is also stipulated. That is why we have to ask if admission guilt agreement has a change to succeed in our legislation and to be used in the legal practice or is meant to fall into disuse ab initio. The main aim of this paper is to examine how the conception of the legislator has evolved over the time and which legal stipulations are the most suitable for our legislation.
Agora International Journal of Juridical Sciences
The article aims to analyze the changes introduced by the new Criminal Code inrelation to the criminal law enforcement in time, mainly in order to harmonize the criminalprovisions with some constitutional principles and also, for the reason of their easilyapplication in practice.From this perspective we can observe that the new Criminal Code has taken over thegreatest part of the provisions nowadays into force and also, has eliminated those provisionsin contradiction with the constitutional principles. Among the latter we can mention thoseprovisions which provide the retroactivity of the additional punishment, education and safetymeasures for reasons of public interest or the provisions relating to the optional applicationof the most favorable criminal law in the closed cases. We may see, also, the introduction ofthe laws declared unconstitutional and the Ordinances of the Government among the lawswhich are subjects for the application of the principle of the most favorable criminal...
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The new Criminal Code of Romania regulates in Title XI of its Special Part the crimes against the combat capability of the military forces. Under this title, Chapter I is dedicated to the crimes committed by the military and defines the crime of unjustified absence. In this study, the author analysed the specific elements of this crime, including: the specific legal object - military discipline, the field of the active subject and the essential requirements imposed by its objective side.
Agora International Journal of Juridical Sciences
Among the other important changes the new Romanian Code of Criminal Procedurehave introduced in the criminal proceedings, those concerning the activity of investigatingand prosecuting entail some clarifications of the attributions, a renaming of certaindocuments and acts issued by the Prosecutor, as well as expand the possibility for theinvestigators or the Prosecutor for gathering any kind of evidence during the investigationphases. In the same time, the legislator created guaranties of respecting the legal rights andfreedoms for the suspected person in as manner as for the prosecuted person.
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