Mitigating Circumstances in the Current and the New Criminal Code. Comparative Examination

• Author: Ion Rusu
• Position: Senior Lecturer, PhD, Danubius University of Galati, Faculty of Law, Romania
• Pages: 96-108

JURIDICA

96

Mitigating Circumstances in the Current

and the New Criminal Code.

Comparative Examination

Ion RUSU

1

Abstract: In this paper we conducted a general review of the provisions relating to mitigating

circumstances and their effects on the current conditions. It was also undertaken a comparative

examination of the mitigating circumstances of the provisions of the current Criminal Code compared

with those of the New Criminal Code. The research is focused on examining the provisions of the

New Criminal Code and on formula ting critical opinions. The paper can be useful to theorists and

practitioners in this field in terms of entering into force of the New Criminal Code. The essential

contribution of the work, its originality lies within the general exa mination of the rules governing the

legal a nd judicial mitigating circumstanc es, their effects under the New Criminal Code, the

comparative examination of current provisions, and the expressed critical views.

Keywords: offense; the New Criminal Code; perpetrator; individualization; minors

1. Introduction

Individualization of criminal sanctions is a complex operation performed in three

distinct phases, by the legislator, the courts and other institutions that ensure their

effective implementation. In the interwar period, some authors identified the

concept of individualization with that of adaptation, the latter being defined as an

“operation of choice and proportioning the means of repression and prevention, in

order to operate in a fair and useful way.” (Dongoroz, 1939 p. 669)

In the work of individualization of sentences, mitigating circumstances have been

provided, although not specifically defined in the text law, in the Criminal Code of

1864, in article 60 there were mentioned effects within the judicial

individualization of sentences.

With direct reference to the mitigating circumstances, in the doctrine of that

historical period it was said that “(...) the mitigating circumstances present no legal

significance, only in terms of punishment, as they are set by the law. As for listing

1

Senior Lec turer, PhD, Danubius University of Galati, Faculty of Law, Romania, Address: 3 Galati

Blvd, Galati, Romania, Tel.: +40372361102, Fax: +40372 361 290, Corresponding author:

ionrusu@univ-danubius.ro. AUDJ, vol. 9, no. 2/2013, pp. 96-108