Constiinta ilicitului si efectele ei în materia erorii de drept penal
Awareness of the illicit nature of an act. Effects on the error of criminal law

Summary/Abstract: Awareness of the illicit nature of an act indicates that, aside from the objective facet of his act, the perpetrator also acknowledges a supplementary aspect: that his act is against the order of law and that it is illicit. Only in the presence of this supplementary element, is the act reproachable to the agent. Awareness of the illicit is an ancillary element, different from the psychological processes specific to the subjective side of the offence. Its existence justifies the distinction between guilt as an element of the subjective side and guilt as a constituent of the offence. The study presents the principal features of the awareness of the illicit. It argues that “material” awareness of the illicit is sufficient, not requiring a rigorous formal acknowledgment of the incrimination text. The material awareness of the illicit means the agent knows he is breaking a criminal, civil or public ruling. In consequence, there are very few concrete situations in which a person can successfully contend to be in the presence of an error of criminal law. Behaviors that are immoral, damage- producing, or that attract disciplinary accountability, are indications of the illicit. Another trait of the awareness of the illicit is that it has to be present. The present nature of the illicit awareness can operate on an individual level, even in a latent manner, as an acceptance of illicit pre-behavior, without a rigorous update. This psychological phenomenon makes the perpetrator accountable even when the illicit nature of his conduct is not acknowledged expressly. As to the reasoning behind the error of criminal law, the author presents the factual approaches through which the avoidable character of the error can be evaluated. The agent has to reflect on the possible illicit nature of his act. Afterwards, in the case of existing indications of the illicit, the author has the obligation to inform himself. These two factors are the practical means through which the agent must perform a correct evaluation of the illicit. If the agent, although reflecting and informing himself on the possible incrimination of his act, has not managed to surpass the error of criminal law he is in, the error was unavoidable and the author has committed the act without guilt, due to the absence of illicit awareness. In some circumstances, the avoidable error of criminal law could be analyzed as a mitigating circumstance, if the agent has not obviously and severely violated his obligation of information. The author’s conclusion is that accepting the exonerating effects of the error of criminal law can be justified in the Romanian jurisprudence, even in the absence of an express regulation, if art. 51 final para. of the Criminal Code is repealed. The admission of the effects of the error of criminal law, related to the notions of illicit awareness and avoidability, will not lead to an inflation of acquittals in the Romanian jurisprudence, as it has not happe

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