Discuții referitoare la un subiect tabu: răspunderea penală obiectivă
Discussion on a taboo topic: objective criminal liability
Subject(s): Law, Constitution, Jurisprudence
Published by: Uniunea Juriștilor din România
Keywords: criminal liability; objective criminal liability; guilt; actus reus; mens rea; the principle of correspondence.
Summary/Abstract: In this study, the author shows that, if a person violates the precept of criminal legal norms, he or she will be liable to prosecution for embracement of that behavior. Criminal responsibility includes offender’s obligation to abide and to serve his or her sentence, and also the State’s correlative right to impose such a sanction as a result of an offense and to impose upon the offender the execution of that sanction. In modern criminal law, criminal liability can be incurred only as a result of an offense and only if the offender has the ability to be held criminally responsible. Classical school of criminal law has converted the subjective criminal liability based on guilt into a principle: without guilt there is no crime, and without crime there is no criminal liability. Such being, the author raises the following question: how might we reconcile these assertions with the objective criminal liability issue which incurs only based on the causality relation between the offense and the result, irrespective of the mental position of the perpetrator? This study represents a journey onto a “hag” of the criminal law in which the foundation of objective criminal liability is addressed through the common-law doctrine, also assessing the pros and cons of maintaining such an institution in some Continental Law systems that accept it. Furthermore, the author has tried sketching a picture of the institution of objective criminal liability in terms of comparative law (English and Italian criminal law), indicating the objective criminal responsibility forms as they were identified by different common-law authors. Last but not least, she aimed to identify the residual forms of the objective criminal liability under the Romanian criminal law, and the prospect of maintaining this form of criminal liability in the Continental Criminal Law.
- Issue Year: 2013
- Issue No: 01
- Page Range: 152-178
- Page Count: 27
- Language: Romanian