The exercise of a right or the carying out of an obligation - Justified causes reintroduced into the New Romanian Criminal Code

• Author: Liviu-Alexandru Lascu
• Position: Law and Economics Faculty, Social Sciences Department, Agora University of Oradea, Oradea, Romania
• Pages: 98-102

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

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

No. 4 (2014), pp. 98-102

98

THE EXERCISE OF A RIGHT OR THE CARYING OUT OF AN OBLIGATION –

JUSTIFIED CAUSES REINTRODUCED INTO

THE NEW ROMANIAN CRIMINAL CODE

L. A. Lascu

Liviu-Alexandru Lascu

Law and Economics Faculty, Social Sciences Department

Agora University of Oradea, Oradea, Romania

*Correspondence: Liviu Alexandru Lascu, Agora University of Oradea,

8 Piaa Tineretului str., Oradea, Romania

E-mail: liviulascu@yahoo.com

Abstract

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 c auses 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 defe nse 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.

Introduction

1. The new Romanian Criminal Code, came into force since February 1, 2014 contains

within the chapter dedicated to the justified causes, in addition to the self-defense and the state

of emergency (which had been included also within the content of the previews Romanian

Criminal Code, adopted in 1968, and which was in force until the above-mentioned date),

there are two new categories of justified causes, the exercise of a right or the performance of

an obligation and also, the consent of the victim. Throughout this article, we decided to do a

short analysis of the concept of exercise of a right or the performance of an obligation

because it has an interesting history, being included among the justified causes of some

previous Romanian criminal codes before the comm unist era, hence the interest of the

legislator to reintroduce it within the criminal provisions after more than half a century.

For a specific fact to be deemed as crime, it is necessary to meet a ll the l egal criteria

previewed by t he criminal law with respect to this crime. So being, when investigating a

crime, firstly must be found the elements of the crime, like actus reus and mens rea, then to

analyze the possibility of existing one or more justified causes, like the order of law and of

legitimate authority which can exclude the criminal liability

1

.

1

L. R. Popoviciu, Criminal Law. General part (Drept penal. Partea general), Bucharest, Pro Universitaria

Publishing House, 2011, page 248.