New Arguments Related to Including the Crime of Violation of Domicile among Theft and Mugging

Author:Sorin Caluta
Position:Baroul Constanta
Pages:329-331
SUMMARY

The doctrine has different points of view when it comes to discussing about violation of domicile as a form of grand theft committed by efraction or by using a genuine or a false key without consent or if we talk about more than one crime. The natural complexity of the grand theft comes when the crime has been committed in a house, and for this it is compulsory to enter the house to commit the... (see full summary)

 
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New Arguments Related to Including the
Crime of Violation of Domicile among Theft and Mugging
Sorin Caluta
Baroul Constanţa
Abstract: The doctrine has different points of view when it comes to discussing abou t violation
of domicile as a form of grand theft committed by efraction or by using a genuine or a false key
without consent or if we talk about more than one crime. The natural complexity of the grand theft
comes when the crime has been committed in a house, and for this it is compulsory to enter the
house to commit the crime. In this situation, the breaking in represents the material element of the
theft, illicit or not. As a consequence, if t he breaking in was illicit, the constitutive elements of the
crime o f violation of domicile have been met, and it will naturally be absorbed by the crime of
theft.
Thus, it is considered1 that in this situation we talk about several crimes because the crime of
violation of domicile is a way through which the offender meets its target, that is,
misappropriation of goods. Article 33, letter a), Criminal Code, stipulates clearly that “there is
more than one crime even if one of the crimes was committed to help committing or hiding other
crime”. It is also argued that the causality link between violation of domicile and theft is not
necessary but circumstantial because efraction or using a key may be done to unlock a wardrobe,
a safety box or a car, which is not a crime. To include violation of domicile in the crime of grand
theft, this link has to be necessary and repeated in all the cases that come under incrimination.
Another opinion2 which dominates the judicial practice and the criminal doctrine states that the
crime of violation of domicile includes the crime of grand theft stipulated in article 209, par. 1,
letter i), Criminal Code. They say it is about a natural absorption because the constitutive
elements of the violation of domicile are implicitly included in the crime of grand theft
committed by efraction, escalading or by using a genuine or a false key without consent.
The crime of grand theft may exist without the constitutive elements of violation of domicile, but
this does not exclude the complex and natural character of the crime of grand theft (homicide,
another complex crime may exist through the constitutive elements of battery, grievous bodily
harm, which are absorbed when the final result has been reached, the death of the victim, or, the
homicide may be committed directly, having all the characteristics of a simple crime).
In conclusion, the natural complexity of the grand theft comes when the crime has been
committed in a house, and for this it is compulsory to enter the house to commit the crime. In this
situation, the breaking in represents the material element of the theft, illicit or not. As a
1
A. Boroi, Criminal Law. Specific Aspects, CH Beck P.H., 2008, p. 227; C. Mitrache, Theft and Violation of Domicile,
in RDP no. 1/1995, p. 124; C. Butiuc, Theft by efraction. Violation of Domicile, RDP no. 1/1997, p. 46; Simona
Cristea, Theft by efraction and violation of domicile in RD/1997, no. 4, p. 92; C. Duvac, Vio lation of domicile and theft,
RDP no. 4/1998, p. 85.
2
V. Papadopol, Legal practice in criminal related matters at the Bucharest Appelate Court, 1998, All Beck P.H.,
Bucharest, 1999, p. 140; Cristina Vladescu, Theft and violation of domicile, in RDP no. 4/1997, p. 88; C. Turianu, Fr.
Garbaci, Theft and violation of domicile, Law no. 1 /1997, p. 96; Simona Cristea, Theft and violation of domicile, RDP
no. 2/1998; Constanta Appelate Court, dec. Pen. No. 136/1994 in RDP no. 1/1995, p. 133.
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