26 MIOARA-KETTY GUIU
delictum) is absorbed, in a natural way, by the serious offence (majus delictum),
while the offence of hitting or assault causing death is a progressive offence in
which the two offences (hitting and killing) keep their individuality.
But, apart from the fact that the above mentioned differentiating elements do
not justify this systematization (division) of the texts, if we go into details, we
shall see that the distinction itself between the two offences rises question marks,
both because it is not understood in what does the specificity of “exceeded
intention” (praeterintention) consists of, as distinctive subjective element,
inherent to the offence of hitting or assault causing death, as well as because it is
not understood in what the specificity of progressive offence consists of.
In art.16 (5), the new Penal Code tries to define praeterintention, showing
that “there is exceeded intention when the act which consists of a willful action
or inaction produces a more serious result, which is due to the guilt of the
defendant”. However, this text does nothing else but enhancing confusion, as it is
more than obvious that the definition of praeterintention coincide with the
definition of progressive offence. Therefore we are forced to conclude that
“praeterintentionate offences” identify with the “progressive offences” and it is
not only about a different subjective element; on the contrary, we talk about a
special type of offences, that have an individual structure and which differ
entirely from the other offences, including the objective aspect.
But, this is not the only problem. If we take into consideration the fact that
the definition given by art. 16 (5) from the new Penal Code is mistaken for the
definition of the progressive offence and, at the same time, the current Romanian
doctrine unanimously supports that the progressive offence is a distinctive form
of the legal unity of offence1, then we have to conclude that, far from being a
definition, the statement in art. 16 (5) of the Penal Code is a pure contradiction
between concepts (contradictio in adjecto). The unity of offence, be it legal,
presuposes that more offences forms, together, a single entity, with a complex
structure, methodically and systematically made. Or, the idea that, in the
progressive offence, the two offences (primum delictum and majus delictum) keep
their individuality, each having a distinctive result, clearly contradicts the idea of
a unity of offence. Since it is stated that each of the component offences have an
autonomous existence2, implicitly it is excluded the possibility that they form a
“unity”, one single offence.
1 See C. Duvac, Unitatea şi pluralitatea de infraciuni, in the collective work Explicaii preliminare
ale noului Cod penal, Vol. I, Universul Juridic Publishing House, Bucharest, 2010, p. 310; C. Bulai,
Manual de drept penal, All Publishing House, Bucharest, 1997, p. 468; M. Zolyneak, M.I. Michinici,
Drept penal, Partea general, Chemarea Publishing House, Iaşi, 1999, pp. 224-225; Gh. Bic
(coordinator), I. Griga, G. Paraschiv, Gh. Alecu, Drept penal, Partea general, Fundaia România de
Mâine Publishing House, Bucharest, 2008, pp. 129, 140-141 ş.a.
2 G. Antoniu, Infraciunea, in the collective work Explicaii preliminare ale noului Cod penal, Vol. I,
Universul Juridic Publishing House, Bucharest, 2010, p. 158.