Self defense in the new regulation. Elements of compared criminal law

• Author: Magdalena Maria Barsan
• Position: Faculty of Law, 'Transilvania' University, Brasov, Romania
• Pages: 13-18

AGORA International Journal of Juridical Sciences, www. juridicaljournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 4 (2014), pp. 13-18

13

SELF DEFENSE IN THE NEW REGULATION.

ELEMENTS OF COMPARED CRIMINAL LAW

M. M. Barsan

Magdalena Maria Barsan

Faculty of Law, “Transilvania” University, Brasov, Romania

*Correspondence: Magdalena Maria Barsan, Transilvania University, Faculty of Law,

Brasov, Eroilor St., No. 25, Brasov, Romania

E-mail: magdalena_maria_neagu@yahoo.com

Abstract: Article aims to bring in the most important aspects of self-defense. The

paper refers to issues of comparative criminal law regarding self-defense. The second chapte r

of the new Romanian Criminal Code describes those justifiable causes, certain circumstances

which eliminate the second essential trait of crime - the unjustified character. The New

Criminal Code chose to divide the causes which eliminate criminal liability in justifiable

causes, those causes which make a deed lose its illegal character and non punitive causes,

which remove the third essential trait of crime – accountability.

Key words: Romanian Criminal Code, self defence, justifiable causes, illegal.

Introduction

The second chapter of the new Romanian Criminal Code de scribes those justifiable

causes, certain circumstances which eliminate the second essential trait of crime - the

unjustified character. This regards in rem circumstances, a s their effects extend to the

participants as well. The New Criminal Code chose to divide the causes which el iminate

criminal liability in justifiable causes, those causes which make a deed lose its illegal

character a nd non punitive causes, which remove the third esse ntial trait of crime –

accountability. The difference between these two criteria is obvious. First of all, unjustified

causes do not question whether the crime was committed by the person who benefits from the

justifiable cause. It comes from the will of the person who commits the deed fully aware and

responsible for his actions. Still, although the fact exists, it is committed in certain

circumstances which make room for the presumption that the person who committed it must

have had a serious legal reason, as stated by law. Thus, the deed appears as “justified” and the

incompatibility between the deed and the regulation cre ated by the lawmaker no longer exists.

Second of all, the non punitive clauses question the freedom of the person to act (as is the

case of physical or moral constraint), the judgment (minority and irresponsibility) or the

contribution of other factors which have either affected the perpetrator’s ability to act and

think (intoxication) or have hid the existence of a state, situation, circumstance (error). In

regard to accidental circumstances, it goes without saying that the person couldn’t have

foreseen that he will commit such a deed for reasons outside of his will.

In regard to self defense, several opinions were considered, opinions expressed by

doctrine and the experience of other laws (article 15 of the Swiss Criminal Code, art icle 20 of

the Spanish Criminal Code, article 122-5 of the French Criminal C ode); in the light of all

these regulations, the condition of grave da nger generated by the attack was elimi nated, as the

gravity of the danger and the actions for its removal being appreciated from a proportionality

point of view. Also, we will notice that the title used by the Romanian la wmaker, namely

“justifiable causes” is not one seen in other European states’ law, which preferred to regulate

these causes without distinctive names, as they are found in the section which regulates that

certain crime. Furthermore, we will notice that not all justifiable causes stated by the

Romanian law are found in other European states’ law and those who are found, comprise

different regulations, either more strict or more permissive in regard to what the lawmaker

wished to achieve at the time of the regulation.