О СУБЈЕКТИВНИМ ОБЕЛЕЖЈИМА ПРОТИВПРАВНОСТИ У КРИВИЧНОМ ПРАВУ
ON SUBJECTIVE ELEMENTS OF UNLAWFULLNESS IN CRIMINAL LAW

Summary/Abstract: The article deals with the problem of so-called unknowing justification and the question whether an actor must have knowledge of the presence of justificatory circumstances, so his crime could be justified. Suppose that A shoots at B with intent to murder him, and turns out later that, unknown to A, B was about to shoot him dead. Although A killed a man, he unknowingly repelled an attack on his life. According to objective theory, lawful acts should be encouraged and justified regardless of the actor’s mental state. On the other hand, subjectivists suggest two possible answers. The weaker version of subjective theory requires merely the awareness of justificatory position, while the stronger variant denies justification if the actor wasn’t motivated by justifying circumstances. The author gives arguments on these viewpoints, supporting the idea that justification requires only knowledge of the justificatory circumstances. The consequence is that the unknowing actor isn’t liable for the completed offense, but may be liable for impossible attempt.

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