REAUA-CREDINŢĂ, O FORMĂ SPECIALĂ A VINOVĂŢIEI PENALE
BAD FAITH, A SPECIAL FORM OF CRIMINAL GUILT

Summary/Abstract: Guilt was defined in the criminal doctrine as „the mental attitude of the person who having committed, with unconstrained will, an act that presents a social danger, had, in the time of execution, the representation of the act and of its socially dangerous consequences, or, although he did not have the representation of the deed and of the consequences, had the real, subjective possibility of this representation. In art. 16 of the Penal Code in force, the forms and modalities of guilt are defined: direct and indirect intention, guilt with and without prevision and praeter intention (intention exceeded). The difference between indirect intention and conscious guilt results from the fact that, in the first case, the perpetrator, even if he does not want the result, accepts the risk of its occurrence, while in the case of premeditated guilt he does not accept it and he considers without grounds that it will not occur. Fault with foresight or ease. It consists in the provision by the perpetrator of the dangerous consequences of his action or inaction, which he does not accept them, considering without grounds, that they will not occur. As such, in the case of premeditated fault the lack of will to produce the result is doubled by the effective, real confidence of the perpetrator in his forces to avoid the dangerous, damaging result and to prevent its occurrence. Simple fault or negligence, consists in the mental position of the person who did not foresee the dangerous consequences of his act, although from all the circumstances of the case and based on his capacity he should and could have foreseen them. Other ways of fault. In the specialized literature and in the judicial practice, they are known and other ways of fault. Thus, culpa in agendo is distinguished, when carelessness or negligence it refers to facts consisting of an action, and culpa in omitendo, when it refers to culpable facts consisting of an inaction. Competition of guilts. In many situations, at generating of the dangerous result the activity of several people contributes to the dangerous result, in these cases all those who caused the dangerous result will be criminally liable. In the Romanian legal literature it has been shown that bad faith implies guilt in the form of intention and this is not compatible with the two modes of guilt. The present study aims, as far as possible, to clarify the divergences that have arisen among theorists, also referring to judicial practice, with its role as judicial precedent. It can be concluded that the ill-meaning constitutes a form of guilt, a qualified intention.

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