Aspects relating to the factual error regarding the constitutive elements of the offense (I)
Abstract
With the entry into force of the New Criminal Code on February 1, 2014, the legislator established a new definition of the criminal offense, embracing the normative theory of guilt. According to this theory, a clear distinction must be made between the subjective elements of the offense (intent, negligence, praeter-intention) and the reproach that can be brought to the agent for committing the deed, which represents a standalone feature – imputability. This vision of the offense has led to a new architecture of the error.
Abandoning the old classification of error, which was enshrined in the old Romanian criminal codes, into factual error and legal error, the current Criminal Code has promoted a modern conception of error, distinguishing between error regarding the constitutive elements of the criminal offense and error regarding the illicit nature of the deed, drawing inspiration from European legislations. This classification focuses on the effects that the error produces in relation to the general characteristics of the offense, rather than its object.
The present study centres on the factual error regarding the constitutive elements of the offense, a concept that will be analysed in two parts. Throughout this work, the theoretical perspective will be supported by numerous examples of judicial practice, both old and current, highlighting its evolution over time. Additionally, the article offers a comparative presentation between the way Romanian legislation regulates the error and the manner in which other legal systems, such as the German, Spanish, Italian, and French, approach this concept.
The first part of this study aims to address the factual error regarding the constitutive elements of the offense not only in a theoretical manner, with the associated definitions and conceptual delimitations, but also from a historical perspective, as the evolution of the error as a criminal law concept represents a long process on the part of specialized literature and case law.
The domain of the factual error regarding typicity is extremely complex, the analysis involving not only the concurrence of criminal law concepts but also certain concepts and mechanisms from the field of psychology. Thus, we have also tried to approach the error from a psychological perspective, as the mechanisms that occur at the level of the agent’s psyche influence the way in which he perceives and responds to the world around him.
Furthermore, the article analyses the object of factual error regarding typicity, an object that may be circumscribed to any objective element within the content of the deed: object, subject, action/inaction, consequence/result, causal link, including elements regarding the place, time, manner, or means of committing the deed, as long as these represent constitutive elements of the offense.
Moreover, before analysing the effects of the error, its relationship with other criminal law concepts, as well as particular hypotheses, which will be the subject of the second part of the article, we considered it necessary to review the different classifications of the error, also presenting the practical relevance of each and how they influence the legal regime of the error.
At the end of the first part, we focused on the conditions that the error regarding the constitutive elements of the offense must meet in order for it to produce its legal effects: the deed of the author must be provided by criminal law; the agent must not have known or must have known incorrectly, at the time of committing the deed, certain states, situations, or circumstances; these descriptive or normative circumstances must represent constitutive elements of the offense; the error must be, in principle, invincible.
