УТВРЂИВАЊЕ АФЕКАТА У КРИВИЧНОМ ПОСТУПКУ
ESTABLISHING THE ELEMENTS OF CRIME COMMITTED IN THE HEAT OF PASSION IN CRIMINAL PROCEDURE

Summary/Abstract: A survey of various concepts of affects in contemporary psychiatric science, which are incorporated in the postulates of criminal-law theory and practice, are given in the first part of the article. Their penal-law and criminal-adjective significance have been subsequently discussed in details.The second part contains an interpretation of the criminal-law regulations and the impact of affects on the criminal liability, penalization and qualification of particular privileged criminal offences in which the affect appears as an element of the corpus delicti. On the grounds of a critical analysis of criminal-law legislation on criminal liability and legal practice, the author draws the conclusion that it is necessary to determine previously whether the offender was brought into the state of affect either by consuming alcoholic drinks or under the influence of narcotics, being that the affect must not be effectuated. It is also needed to formerly find out whether the offender is mentally sane or insane. Discussing the affect as an element of a privileged corpus delicti in the cases of murder or aggravated assault and battery committed in a fit of passion, the author offers certain recommendations concerning the affect establishment, which may be of use to the judge in separating the criminal-law regulations that could get into mutual collision.The criminal-adjective aspect of the affect establishment in the criminal procedure represents the contents of the final part of this article. Theoretical standpoints, difficulties and imperfections of legal practice are particularly interpreted in this section. Legal and theoretical requirements are discussed, the fulfillment of which is indispensable for the adequate distinction of duties between a judge and a court expert-psychiatrist. Also, the theoretical criteria are presented for differentiating factual from legal questions, over which theoreticians are disputing and the legal practice is stumbling as well. The author finally gives the interpretation of criminal-law repercussions for determined physiological affects that exert a substantial influence upon the capability of reasoning and decision making.

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