Unele consideratii asupra fundamentelor pozitiei de garant
Considerations on the foundations of the guarantor position in criminal law.

Summary/Abstract: Crimes committed through omission are crimes that, albeit resting on an incrimination that requests action, can also be perpetrated through inaction. In the field of criminal law, this cathegory of crimes are described by the fact that their author can only be a determined person, identified in the doctrine as a guarantor. The guarantor is a person with a special relationship to a certain social value- this relationship is defined by the inability of the social value owner to protect it unaided. In harmony with modern doctrine, the guarantor will exist whenever a subject of law exerts either protection of a social value, or control over a source of danger. The former situation presumes that the guarantor is held to avoid the threats to the social value under protection; the latter, that the guarantor must exert a constant control over a social value or a source of danger, so as to avoid jeopardizing third persons. The bipartite- functional theory must be reconciled with the exigencies of the formal theory, which deals with the judicial nature of the obligation to take actions of danger avoidance. The result of this conciliation is a joint approach on the position of guarantor. The function of protection refers to conserving the integrity of the social value in front of any sources of danger. The conservation is meant to be upheld through mandatory active conduct, able to thwart the result referred to in the incrimination norm, on the basis of the guarantor’s obligation of care, aid or support in relation to the holder of the protected social value. The sources of such an obligation are the law, the contract, the previous dangerous action, as well as other sources- customary law, voluntary or common assumation of danger. The function of control is typified by the fact that the integrity of a social value depends, concretely and personally, on the exerting of control over a determined source of danger. This control can be exerted either by the individual who created the danger, or by the one who is obliged to supervise the source of danger. In addition to the ones previously examined, this form of guarantee holds specific hypotheses: the responsibility of the guarantor for the act of a third person, the control exerted in the guarantor’s own supervising area. A central position in this analysis is held by the premise of preceding dangerous action on the part of the guarantor. Lastly, in awareness of the problems this institution can raise in the jurisprudence, the author pleads for legal recognition of the position of guarantor in Romanian criminal law. The model adopted to date by the Romanian legislation- denying the concept of crimes committed through omission triggers numerous problems concerning conformity to the principle of legality of incrimination.

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