Reflecþii asupra corelaþiei pericol social - rãspundere penalã în cadrul teoriei infracþiunii
The Social Danger - Criminal Liability Relation within a Theory of the Offence

Summary/Abstract: The situation in which the actual social danger of a certain offence collides with the general social danger of such act – a requirement by which an unlawful act shall be provided by the criminal law – has given rise to many controversies in the Romanian penal doctrine and has brought about legal consequences, both in the realm of substantial penal law, (the conditions to qualify an illegal act as an offence, an act provided by criminal law or by administrative/civil/disciplinary law, the determination of its seriousness, its nature and the sanctions it may entail), as well as in that of procedural law, leading to the replacement of traditional criminal liability with a type of criminal liability of administrative character. In the first Penal Code from 1864 and in the second one, from 1936, the degree of social danger of an offence was the basis on which such acts were classified into felonies, misdemeanours and infractions (petty offences), according to the French model of the time, which also dictated how to apply correlative sanctions. Starting the half of the XXth century, under the influence of Soviet penal legislation, which had a materialistic approach to the offence, Romanian legislation introduced a new standard, i.e. the lack of social danger of an unlawful act, which also led to the replacement of criminal liability in case of such acts. Such a standard is still in force at present and has generated numerous controversies along the years. Whereas such standards survived in the first new Penal Code, adopted as Act no. 301/2004, in the new Penal Code to come, they were repealed. However, in the new Code of Criminal Procedure, adopted as Act no. 135/2010, such standards have somehow survived alongside with the settlement of the principle of opportunity of prosecution. Said principle implies that prosecution shall not be pursued in certain conditions, in case of offences which are sanctioned by a maximum penalty of 5 years of imprisonment or by a fine. The last part of the study is based on a comparison with the legal frameworks of other countries which have provided for such standards, the author thus pointing out the specific features of each system.

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