Some approaches on the offense of murder or injury of the newborn committed by the mother, provided in article 200 of the new criminal code

Author:Mihaela Rotaru
Position:Assistant Lecturer, PhD Candidate, Faculty of Law, 'Alexandru Ioan Cuza' Police Academy, Bucharest
Pages:148-155
SUMMARY

In addition to the innovations included in the new Criminal Code, the legislator of this legal act makes a number of amendments to the existing institutions and offenses in the criminal law. Such a situation is encountered for the offense of murder or injury of the newborn committed by the mother provided in Art. 200 N.C.C., offense that partly corresponds to the offense of infanticide described... (see full summary)

 
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LESIJ NO. XX, VOL. 2/2013
SOME APPROACHES ON THE OFFENSE OF MURDER OR
INJURY OF THE NEWBORN COMMITTED BY THE MOTHER,
PROVIDED IN ARTICLE 200 OF THE NEW CRIMINAL CODE
Mihaela ROTARU
Abstract
In addition to the innovations included in the new Criminal Code, the legislator of this legal act makes
a number of amendments to the existing institutions and offenses in the criminal law. Such a situa tion is
encountered for the offense of murder or injury of the newborn committed by the mother provided in Art. 200
N.C.C., offense that pa rtly corresponds to the offense of infanticide described in Art. 177 of the Criminal
Code in force. The legislator considered it necessar y to also criminalize in the new Criminal Code the act of
injury of the newborn committed by the mother, along with the action of killing, a situation that rightly caused
the change of the marginal na me of the offense. Moreover, another interesting aspect that also c onstitutes
the focus of our appr oach is represented by the two phr ases which are different from those in the lega l text
in force, i.e. immediately after birth but not later than 24 hours and state of mental disorder, which are
designed to equalize the views expressed in the cr iminal literature regarding the ana lyzed crime a nd the
practice in the field.
Keywords: killing, injury, newborn, mother, disorder.
Introduction
The objective of this study is to analyze two very i mportant, even essential issues in order
to characterize the offense of murder or injury of the newborn committed by the mother, referred
to in Art. 200 of the new Criminal Code
1. The first aspect is related to the choice of the legislator
to limit the situation of being newborn for the passive s ubject of the crime to the first 24 hours
after his birth. The second aspect relevant in supporting our approach is related to the active
subject this time, represented by the mother of the new born child, which should be in “state of
mental disorder in order to apply to her an attenuated punitive treatment, according to the legal
provisions of the Art. 200 N.C.C., if she kills or hurts her newborn child.
The starting point in this study is represented by the provisions of the new Criminal Code
and the issues raised in the Explanatory Memorand um2 to the new Criminal Code which
determined the form in which the text of the offense was written in the new Criminal Code, on the
one hand, and the provisions of the Criminal Code in force and the jurisprudence and doctrine, on
the other hand.
Assistant Lecturer, PhD Candidate, Faculty of Law, “Alexandru Ioan űuza” Police Academy, Űucharest
(e-mail: mihaela.rotaru@academiadepolitie.ro).
1 Represented by Law no. 286/2009, published in The Official Gazette of Romania" no. 510 of July 24,
2009 and most recently amended by Law no. 187/2012, published in The Official Gazette of Romania" no.
757 of November 12, 2012. Further N.C.C.
2 Explanatory Memorandum to the new űriminal űode”, accessed: August 4, 2009, http://www.
cdep.ro/proiecte/2009/300/00/4/em304.pdf.

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