Aspecte referitoare la eroarea de fapt asupra elementelor constitutive ale infracţiunii (II)
Aspects relating to the error of fact regarding the constitutive elements of the offence (II)

Summary/Abstract: As extensively discussed in the first part of this study, art. 30 of the Criminal Code, placed within Chapter III of Title II, alongside other concepts bearing the name “causes of non imputability”, distinguishes between error regarding the constitutive elements of the offence and error regarding the illicit nature of the deed. However, the error presents an element of specificity, as only the error regarding the illicit nature of the deed represents a veritable non imputability cause. Given this context, the second part of the study analyses the effects that the error regarding typicity produces in relation to the general characteristics of the offence. From the corroboration of paragraphs (1) and (2) of art. 30 of the Criminal Code, the invincible error will result in the removal of guilt as a characteristic of the offense, both in the form of intent and negligence, while the vincible error will exclude only intent, leaving open the possibility of incurring criminal liability for an offence committed by negligence, if it is also incriminated in such a manner. Thus, the error regarding typicity produces effects on the second characteristic of the offence – culpability. In the context of analysing the effects, we have focused particularly on foreign specialized literature, as well as on the decisions of the courts, revealing how they relate to the criteria for distinguishing between invincible and vincible error. At the same time, we aimed to conduct a comparative approach to the legal status of error, as regulated by the Romanian Criminal Code, with other criminal systems, providing examples of decisions from courts of law belonging to these systems. Another substantial part of the study centres around the relationship between the error of fact regarding typicity and other criminal law institutions – legal circumstances, criminal participation, justification causes, causes of non imputability – as well as the manner in which these interconnect. At the end of the article, we analysed various particular hypotheses of error of fact regarding typicity: error in personam, error in objecto, aberration causae, aberratio ictus, aberratio delicti, error regarding the means used to commit the deed. By referring to each particular situation, the article extensively presents the divergent positions existing in the specialized literature regarding the legal treatment that should be offered to each hypothesis, identifies the arguments of the proponents of each opinion, and finally highlights the position that judicial practice adopts considering the specialized literature discussions. The analysis of the error of fact regarding the constitutive elements of the offence, understood as a distortion of the psychic process, has focused on the dimension of the agent’s subjective conception at the moment of committing the deed. The study of this criminal law institution has attempted to find an answer to the question: is it sufficient for the agent to have erroneously represented reality and not understood the result of their action, in order to remove criminal liability? The answer to this question could not be provided except after a complex evaluation of all the circumstances of the case, taking into account the factors that generated the error, the type of deed committed, the element to which the error pertains, the possibility of avoidance etc. To support the provision of an adequate answer, the legislator, the specialized literature, as well as the courts have developed the conditions under which the error can operate, the elements that can constitute the object of the error, the classifications that influence the legal status of the error’s effects, the way in which the effects influence the characteristics of the offence, as well as the methods of solving particular hypotheses.

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