Critica teoriei actelor indispensabile în materia participației penale

Rezumat

By means of this current study, the author wishes to bring to the attention of all readers some critical aspects regarding the criteria used for the purpose of delimitation between co-authorship and material complicity in the Romanian criminal law literature and judicial practice, which can also be known as the indispensable acts theory.

It is well known that over the years the judicial practice had some uninspired moments regarding the qualification of accomplices as co-author, when there was no legal basis. To point out the differentiated characteristics of each of the forms of criminal participation mentioned above and leave no room for confusion, two theories regarding the execution acts of co-authors are considered to be the starting point. In what follows, the author presents a combination of the two theories, embraced by the Romanian judicial practice and most of the criminal law authors.

After explaining the three theories, the author makes some critics about them, especially with reference to the third theory that is used in our criminal law practice.

In terms of criminal treatment for aiding, abetting or otherwise assisting to a criminal offence, under the current legislation, such accomplices will be subject to the same penalty provided by the law for the perpetrator of the offence in case of conviction. Because of this, there is no reason for concern if the person who immobilizes the victim is held liable as an accomplice to the offence of murder, rather than an author. The court still possesses the faculty to apply the same penalty to both.

In the last section of this article, the author points out the best theory to serve the purpose of a fair trial, which was developed by the foreign criminal law literature.