The real social threat and the causes for reducing the punishment, according to the changes brought by the law no. 202/2010, Small reform in justice

• Author: Andrei Zarafiu
• Position: Assistant, Ph.D., Faculty of Law, University of Bucharest
• Pages: 98-106

98 Lex ET Scientia. Juridical Series

LESIJ NR. XVIII, VOL. 2/2011

THE REAL SOCIAL THREAT AND THE CAUSES FOR REDUCING

THE PUNISHMENT, ACCORDING TO THE CHANGES BROUGHT BY

THE LAW NO. 202/2010, SMALL REFORM IN JUSTICE

Andrei ZARAFIU∗

Abstract

The new substantial changes, though minor as concerns the content, if we relate to the

intervention caused by the same legislative act in the procedure field, have generated serious

difficulties in the interpretation and application in the legal criminal activity. This article aims at

analysing and identifying the legal consequences caused at the level of the substantial norm for

applying the mentioned legislative act. At the same time, the article offers efficient legal remedies

for overcoming the procedure impediments generated by adopting the Law of Small Reform in

Justice. The article has three parts, analysing the changes brought by the Criminal Law by the

Law No. 202/2010 in different fields: art. 181 – the deed that is not a real social threat of a crime,

art. 741 and art. 184 – accidental wounding.

Keywords: criminal law, real social threat, parties’ reconciliation, grounds for reducing the

punishment.

Introduction

As the Law No. 202/2010 itself, the article has a plural-disciplinary form, discussing aspects

connected to adopting the Law of Small Reform in Justice, in the substantial, as well as in the

procedure field.

Beyond the critical analysis, the article proposes efficient legal remedies, under the form of

concrete, punctual and fundamental solutions, for the negative procedure consequences caused by

applying this legislative act.

The work analyses, first of all, the way in which the legislator sets a legal preference for the

material or legal criteria that have to be taken into account for determining concretely th e degree

of social threat of a crime, in the detriment of the personal criteria.

Secondly, one has to take into account the institution stipulated by art. 741, that can be

characterised with difficulty, as it contains elements that belong to the content of different legal

categories, as a form for individualising the punishment with sui generis or hybrid character, made

up of three distinct causes.

At the same time, there are analysed the changes brought to the way in which the criminal

action can be ceased for all forms of the crimes of accidental wounding.

By offering proper procedure remedies, the work has the value of a guide destined first of all

to the practitioners, but it can also be a source of inspiration for the legislator, as well, in case of

future changes.

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∗ Assistant, Ph.D., Faculty of Law, University of Bucharest (e-amil: andrei.zarafiu@drept.unibuc.ro).