Legal classification and judicial syllogism

Author:Mioara-Ketty Guiu
Position:Associate scientific researcher of the 'Acad. Andrei Radulescu' Legal Research Institute of the Romanian Academy, mioarakettyguiu@yahoo.com.
Pages:139-147
SUMMARY

Particularly in criminal matters, the judicial errors register an alarming increase, so much so that it not only affects the destiny of the wrongfully sentenced or the groups that they belong to, but also the destiny of the entire society. A cause of this situation resides, from what it seems, in the lack of thorough legal studies with regards to the logical operations which should stand at the... (see full summary)

 
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Legal classification and judicial syllogism
Associate scientific researcher Mioara-Ketty GUIU1
Abstract
Particularly in criminal matters, the judicial errors register an alarming increase,
so much so that it not on ly affects the destiny of the wrongfully sentenced or the groups that
they belong to, but also the destiny of the entire society. A cause of this situation resides, from
what it seems, in the lack of thorough legal studies with regards to the logical operations
which should stand at the base of the dec ision that an actual act does constitute a certain
offence, with a well specified “cla ssificationor “qualification”. The present paper tries to
actuate debates o n the matter, which has been wrongfully neglected. With this purpose, the
author begins from a rather old idea, but insufficiently known, and that is that any court
sentence is the result of two types of judicial syllogisms: qualificative and decisional.
Elaborating this idea, the author observes a series of other aspects, such as: the fact that, in
criminal matters, the qualificative syllogisms serve to establish the legal classification, while
the decisiona l syllogisms serve to establish the senten ce; the fact that, in criminal
qualificative syllogisms, the subject is always the actual act, and the predicate is a criminal
concept (the notion of an offence); the fact that the legal classification is not an “operation”,
as is claimed by many authors, but a conclusion, specifically to a qualificative syllogism etc.
Keywords: actual act, act-species, concept, syllogism, judicial error.
JEL Classification: K10, K14
1. Preliminary explanations
The expression “legal classification is a common in the Romanian
jurisprudence and it appears in several criminal procedure texts in force (art. 386 of
the Criminal Procedure Code in Romania, art. 403 of the Criminal Procedure Code
in Romania etc.)
However, the law does not define this expression, and the doctrine has rarely
and hurriedly approached it, and as such its meaning and importance have remained
somewhat uncertain.
According to the legal dictionary 2 , this expression designates the
identification operation within an actual committed act, of the elements pre-
established by a legal provision in force as setting forth the character of offence for
one person’s behavior from which we can conclude, in a quite difficult manner,
that “legal classificationis the operation of identifying the acts which constitute
offences.
1 Mioara-Ketty Guiu - associate scientific researcher of the “Acad. Andrei RadulescuLegal Research
Institute of the Romanian Academy, mioarakettyguiu@yahoo.com.
2 Legal classification (legal dictionary) – document accessible on-line at https://legeaz.net/dictionar-
juridic/incadrare-juridica (accessed on 20.01.2018).

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