Noua viziune normativă asupra erorii în dreptul penal
A new normative perspective over error in Criminal Law

Summary/Abstract: On 1st February 2014 a new criminal regulation came into effect, which brought important amendments, both in general and special section of the Code. The error is one of the institutions affected by these important changes, a cause which excludes the culpability, provided by Article 30 of the new criminal Code. This topic will be in detail analyzed in this study, focusing on new aspects, as well as on aspects which already generate different views in doctrine. Also, we will take some hypothesis of conflict with others causes which exclude the culpability into account. In the writings relative to new criminal Code, a two-folded approach regarding the way to analyze the error can be observed. A first approach, that can be called the conservative or traditional one, analyzes the error in the same manner as under the ancient criminal Code, making distinction between mistake of fact [paragraphes (1) – (3)], mistake of noncriminal law [paragraphe (4)] and mistake of criminal law [paragraph (5)]. The other approach takes account of the lawgiver’s will exposed into the explanatory memorandum, distinguishing mainly between error on the elements of the offence [paragraphes (1) – (4)] and error as to the prohibition [paragraphe (5)]. It does not ean that, in this approach, the first classification became unimportant, but only that is in the background. If the error concerning the elements of the offence raises no specially issues, we cannot say the same thing about the second kind of error. The different interprations are also caused by the silence of the lawgiver, who gave not examples in the explanatory memorandum, so we can realize how much we can extend the scope of Article 30 paragraphe 5. From this point of view the doctrine is divided, some authors only including the mistake of criminal law here, while others consider the error as to the prohibition involving a mistake of fact, of noncriminal or criminal law, as the case may be. Another aspect regarding the error as to the prohibition and which could generate many controversies is the fact to know if the direct error as to the prohibition can or cannot be subsumed under this kind of error. We refer to the mistake of criminal law regarding the existence of the criminal law provision, relative to the scope of it, or concerning a component of the offence seen by legal view (if is or isn’t provided by law that the fact can be qualified as offence). From this point of view, we argued that this kind of error should be taking into account in the light of Article 30 paragraphe 5. It remains to be seen the jurisprudential interpretation of the mentioned legal provision, in case of invoking such kind of error into the court. And even if the error was avoidable, would be the premise to retain a judicial mitigating circumstance in accordance with the Article 75 paragraphe 2 point b) at least.

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