Unele consideratii teoretice si practice asupra teoriei autorului mediat
Theoretical and practical considerations on the mediated author theory

Summary/Abstract: According to art. 31 para. 1 of the Penal Code, “intentionally determining, facilitating or helping in any way the perpetration of an incriminated act, committed by another person with negligence or imprudence, is punished with the penalty given by the law to the act when committed with intention”. According to para. 2 of the same article, “intentionally determining, facilitating or helping in any way the perpetration of an incriminated act, committed by another person without guilt, is punished with the penalty given by the law to the respective offence”. These two situations are expressly regulated under the nomination of improper participation. The solution adopted by the Romanian legislator is different from the ones proposed by systems of reference in penal law, such as the German one- the mediated author theory, or the Italian one - no distinction between the participants to an offence, all of them being authors. The author shows that, in the Romanian criminal doctrine, the mediated author theory has been vigorously criticized. However, on a thorough scrutiny of the arguments against this theory, many of the critiques seem to be unfounded, as the mediated author theory auto-limits its sphere of applicability. With the help of numerous examples, the study suggests the incidence of this theory to many qualified-subject crimes, contrary to some assertions in the Romanian penal literature (e.g. the theory applies when a office worker that has keeper or administrator status instigates an irresponsible person, who does not hold such a status, to commit acts of embezzlement. In this case, the instigating office worker will be the mediated author). Furthermore, the study considers that, provided that the person who carries out the material element of an offence becomes the author of this respective offence, it is possible to regard as author also the person who has fulfilled in its entirety the subjective element of the crime. However, the paper shows that there are some cases in which the mediated author theory cannot operate - for example, the case of a person who instigates an irresponsible to perform sexual acts with his sister; in this case, the instigator will only be held as a participant to the crime, through instigation. The analysis then focuses on the applicability of the mediated author institution in the cases where other controversial penal institutions apply: self-defense, factual error and moral or physical constraint.

• Details
• Contents