The Distinction between the Generic Content and the Specific Content of the Incrimination

• Author: Mioara-Ketty Guiu, PhD - Ion Flamânzeanu, PhD
• Pages: 15-22

Page 15

Associate Professor Mioara-Ketty GUIU, PhD Police Academy ,,Alexandru Ioan Cuza", Bucharest icj_juridic@yahoo.com

Senior Lecturer Ion Flamânzeanu, PhD Legal Research Institute „Acad. Andrei Rădulescu" of The Romanian Academy icj_juridic@yahoo.com

---

In addressing the issue of the elements of the offence, most Romanian specialists in criminal law emphasize that the concepts of offense and the elements of the offence are not identical (Bulai, 1997, p. 167)^.

In this respect, it is shown (Bulai, 1997, p. 167) (Mitrache, 1995, p. 80) (Giurgiu, 2000, p. 127) (Boroi, 2006, p. 101) that the concept of offense sets the "essential" features of any offense, while the elements of the offense establish the "specific" features of a crime. Where is inferred that the distinction referred has as criterion the extent of the essential features: the concept of offense sets the key features common to all crimes, while the elements of the offence set the specific issues contained by a certain offence. Moreover, confirmation of this conclusion is provided by professor

V. Dongoroz, who makes a very similar distinction in his book published in 1939 (Dongoroz, 1939, p. 215), namely between the "generic content" and the "specificPage 16content" of the offense, stating that the first ("generic content") should include the common "generic" conditions (Dongoroz, 1939, p. 215), which appear as elements of the offence for all offences, while the second ("specific content") should include the "specific" conditions of certain offenses, reduced in number.

However, on a closer analysis, it appears that the many uncertainties govern this distinction.

Thus, we see, first, that this distinction is addressed in the context of incrimination issues (specific), which rises from the start, a big question. Since we start from the premise that the definitions or the elements of various offenses (the concept of species) is subject to the general definition of the offense (the concept of gender), it means that this distinction belongs to the paradigm of the offence - because, logically, the definition of the generic notion of offence should be preceded by the indication of interest (necessity) to have such a concept and, more specifically, by showing that while the specific definitions (or "elements") include only "specific" requirements, which separate an offence from the other, the general notion of crime includes "generic" requirements, which link together specific elements, bringing the great variety of crimes to a common denominator.

Then, we note that the language in use is debatable. On the one hand, one speaks of the "elements of the offence" (formula inspired by the name of Article 17 of the Romanian Penal Code), and not about the "legal requirements related to the existence of the crime" - according to the requirements of the legal science, and, on the other hand, the so-called "essential features" (that belong to the generic notion of crime) are opposed to "specific features" (specific to the elements of incrimination) - which brings about the idea that the elements of the offence would include circumstantial, accidental or non-essential, that might be missing and their absence would not lead to the lack of offense. However, such an idea is a serious mistake, because it contradicts the very principle of legality, which claims to be considered a criminal offense, only those facts that correspond fully, to a certain content of indictment, meeting all the requirements.

But in order to understand how such an idea has been reached, we must return to the distinction made by Professor V. Dongoroz, between the generic content and specific content of the crime, emphasizing the fact that he claimed that unlike the general conditions, which would appear in any indictment, the specific conditions would appear only in the content of certain crimes. Since, as the professor has shown, all conditions, both "generic", and "specific" are also "essential" conditionsPage 17(Dongoroz, 1939, p. 215), it means that the specific conditions should also be included in the content of any offence - because, in the absence an essential condition, whatever it may be, the offense would fall down. Moreover, we should note, that contrary to what the professor said, within the content of a particular crime can appear only those essential conditions that are also "specific", meaning that such an offense has its own particular configuration. In fact, any content of indictment only contains specific conditions and not generic terms.

Another fact that must be...