ASPECTS ON LEGITIMATE DEFENCE IN THE CURRENT CRIMINAL CODE AND IN COMPARATIVE LAW
Autor (i): Lixandru Raluca-Viorica
JEL: K 14
Cuvinte cheie: legitimate defence, criminal nature of the deed, justifying causes or causes
Abstract:
The current Criminal Code places special emphasis on the justifying cases. The justifying causes remove the illicit character of the act provided by the criminal law, and not the guilt represented by the imputability of the act. The legitimate defence removes the criminal character of the act. It is very important that its conditions are met: there must be a direct, immediate and unjust material attack, as well as a defence directly proportional to the severity of the attack. The effects of justifying causes occur in rem, consequently extending on all the participants. If a justifiable cause is retained, punishments, educational measures or safety measures may be applied. The civil liability of the perpetrator is removed. Upon developing the current codes, concerning the legitimate defence, the opinions expressed in the literature have been taken into account, as well as the laws of other states. As a rule, in the European legislation, there is no division in justifiable cases (which also includes the legitimate defence) and causes of non-immutability (e.g. the French, Spanish and German Penal Codes), with the exception of the Belgian criminal code, where there is the same classification as in the Romanian Criminal Code.
The current Criminal Code places special emphasis on the justifying cases. The justifying causes remove the illicit character of the act provided by the criminal law, and not the guilt represented by the imputability of the act. The legitimate defence removes the criminal character of the act. It is very important that its conditions are met: there must be a direct, immediate and unjust material attack, as well as a defence directly proportional to the severity of the attack. The effects of justifying causes occur in rem, consequently extending on all the participants. If a justifiable cause is retained, punishments, educational measures or safety measures may be applied. The civil liability of the perpetrator is removed. Upon developing the current codes, concerning the legitimate defence, the opinions expressed in the literature have been taken into account, as well as the laws of other states. As a rule, in the European legislation, there is no division in justifiable cases (which also includes the legitimate defence) and causes of non-immutability (e.g. the French, Spanish and German Penal Codes), with the exception of the Belgian criminal code, where there is the same classification as in the Romanian Criminal Code.
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