Noul cod penal. Cauzele justificative
The new criminal law. Justificatory causes

Summary/Abstract: Although the criminal doctrine has suggested to eliminate the definition of the concept of crime and to entrust the doctrine with finding the best definitions, the New Criminal Code defines the crime in art.15 as being “the act stipulated by the penal law, illegitimate and imputable to the person that has committed it”. We can see that the essential characteristics of the crime are reformulated; only a single one from the present regulation was kept, namely the one according to which the crime is an act stipulated by the penal law, the other two being replaced with the requirements that the fact should be illegitimate and imputable to the person that committed it. The institution of the justificatory causes had been reintroduced in the New penal code, thus coming back to the solutions stipulated by the penal legislation from 1937 which differentiated between justificatory causes and the causes which eliminate the guilt. The New Penal Code refers to these causes in relation to non-imputable ones in a different way, by emphasizing the objective character of the former and the subjective, personal character of the latter. The justificatory cause does not eliminate the concordance of the fact with the criminal model, but instead it removes ab initio the possibility of the typical act of turning into a crime. It expresses the objective position of the act in relation to the overall juridical order, while the guilt expresses the necessity of a determined psychic process that lies at the basis of committing an act stipulated by the penal law, which presents a social danger. The guilt is analyzed in relation to a fact which previously had the objective essential characteristics of the crime; it is an aspect subsequently analyzed. The consequences of the existence of a justificatory cause are also very important. First of all, they operate in rem, extending over the participants, and secondly they remove the possibility of applying either a penal sanction or any other penal law sanction or civil sanction. The justificatory causes stipulated-settled by the New Penal Code are: the self-defense, necessity state, law and legitimate authority order and the consent of the victim; the present article analyzes more thoroughly the last two causes which are not brought under regulation by the present Criminal code.

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