Particularităti ale legitimei apărări în cazul infractiunilor contra patrimoniului
Particularities of self defense in the case of offences against patrimony

Summary/Abstract: According to art. 44 para. 2 of the Romanian Penal Code, „an individual is in self- defense if he performs the act in order to remove a material, direct, immediate and unjust attack, directed against his self, another person or a community interest, if the attack poses a grave danger to the person or the rights of the one who is attacked, or to the community interest”. Starting from this legal text, the present study investigates the incidence of this justifying cause in case of the attack consisting of an offence against patrimony. It analyses the conditions of the attack and of the defense, the sphere of applicability for putative self defense (when the author erroneously believes that he is acting in self defense), and, finally, the recently introduced institution of presumed self defense. Systematically researching the requirements of attack and defense, the author especially insists on the difficulties appearing in practice in what concerns the prerequisite that the attack should pose a grave danger to the values stipulated in art. 44 para. 2 Penal Code. In offering a solution to the issue, she presents numerous cases from the jurisprudence (theft in an isolated place by a stranger who could easily disappear without a trace, the act of a guard who, catching the victim while stealing cherries, applied several fists to her, causing her to fall and suffer a knock on the head, dying as a result, etc.). The author also presents the doctrinaire proposals of abandoning this requirement and solving the problem on the field of proportionality between attack and defense. She maintains that is the most viable solution; in addition, it would seem strange to punish an act because it presents social danger (one of the requirements of the offence, art. 17 Penal Code), but the same act, when constituting an attack, would not permit the legal application of self defense. The study then analyzes another requirement of this institution, namely the necessity of defense, imposing that the defense cannot be oriented against the goods of the aggressor, with the exception of the ones used in the attack. Also, investigating another requirement- the proportionality between attack and defense- the author sustains that this implies the interdiction of killing the person who attacks a patrimony, while permitting his grave injury, as long as the good has a significant value, and the prejudice is irreparable. In this context, a special attention is given to automated systems of defense of goods, which are principially accepted by the doctrine and jurisprudence, if they were not installed with the purpose of killing potential attackers. The last section is dedicated to presumed self defense, recently introduced in the Romanian legislation, and modified through Law no. 247/2005. Conforming to art. 44 para. 21 Penal Code, “the person who commits the act to reject the unlawful invasion of a person, made through violence, slyness, efraction or any ot

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