Imputability as a special feature of the offence, according with the new penal code (law no. 286/2009). Concept. Controversies

Author:Versavia Brutaru
Position:Scientific researcher (III), Juridical Research Institute 'Acad. Andrei Radulescu', Romanian Academy
Pages:72-84
72 Lex ET Scientia. Juridical Series
LESIJ NR. XVIII, VOL. 2/2011
IMPUTABILITY AS A SPECIAL FEATURE OF THE OFFENCE,
ACCORDING WITH THE NEW PENAL CODE (LAW NO. 286/2009).
CONCEPT. CONTROVERSIES
Versavia BRUTARU
Abstract
The issue of imputation in penal law generated, through out the history, many controversies.
The principal aim of this study is to clarify this concept, both in relation with the Romanian and
foreign doctrine, and with the new provisions of the new Penal code, enforced by the Law nr.
286/2009. The new Penal code introduces, a new definition of the offence, containing the concept
of “imputability”. Our study is based both on the opinions of some foreign authors regarding the
concept of imputability, imputation and Romanian authors.According to the Initiator (Ministry of
Justice) the main justification for introducing this concept into the offence definition was that “a
deed, in order to bring upon criminal responsibility, must not only to correspond with the legal
description, to be unjustified, but also, the deed, must be able to be imputable to the offender; that
means, the deed could be reproached to the offender. In order to discuss this concept of
imputation, there are necessary some premises: the offender must have had the representation of
his/her actions or inactions and the lack of any duress (the offender should not have been
irresponsible, intoxicated or an under aged). In addition, the offender must have known the illicit
character of the deed when committing the offence (the lack of error). Also, the study is structured
in tree parts, fist beginning with the need for a definition of the offence, second part refers to the
concept of offence in Romanian law; third part (the extended one) is dedicated to the essential
features of the offence, with a special view on imputation/imputability.
Keywords: imputability, imputation, incrimination norm, action/inaction, result, illicit
character of the deed
Introduction
The important innovation of this project is renouncing to the material concept of the offence
and orientation toward the formal one. It did not renounce only to the social danger element, but
also to the definition of the purpose of penal law.
Conceiving, in this way, the essential features of the offence represent a novelty also in
relation with the new Penal code adopted in 2004, a Penal code that defined the offence, as “a deed
provided by the penal law, that presents a social danger and it is committed with guilt”. This new
Penal code, although regulated the matter of justified causes (Chapter II, articles 21-25) didn’t
considered necessary to mention that the lack of these justified causes could represent an essential
feature of the offence; error corrected by the second new Penal code, which not only renounces to
the social danger as an essential feature of the offence, but introduces, amongst the essential
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Scientific researcher (III), Juridical Research Institute “Acad. Andrei Radulescu”, Romanian Academy;
(email: bversavia@gmail.com)

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