Regulating negligence in German and in Spanish criminal law
Lecturer Cristinel GHIGHECI1
Although in German a nd in Spanish legal systems there a re no express pr ovisions
with regar d to the criminal negligence (culpa ), this has not hinder ed the legal doctr ine and
jurispruden ce to thorou ghly a nalyse this form of guilt. This made it possible to qualify a s
intentional offences some deeds which in our legal system a re considered to be committed
with conscious neg ligence (involving foresight). The difficulty to distinguish between
indirect intention (dolus eventualis) and conscious negligence (luxuria ) ha s nonetheless
determined Spanish cou rts to ask the legisla tor to pro vide a clear definition of indirect
intention, which could be a n additional argument with r espect to the weaknesses enta iled
by such a legal a pproach.
Keywords: criminal negligence, indirect intention, Ger man legal system, Spanish legal
JEL Classification: K14
In various criminal legal systems, there is no legal definition of negligence
(culpa), as opposed to Romanian criminal law, which provides such a definition2.
At most, such legal systems include mere enumerations of forms of guilt (mens
rea) that a wrongdoer might have when committing an offence without including a
legal definition of such forms of guilt.
As there are opinions in the Romanian doctrine referring to the uselessness
of a legal norm containing a legal definition of negligence in criminal law,
according to which it is considered that this issue should be the exclusive concern
of the theorists of criminal law, it is necessary to analyse the solutions embraced by
other legal systems with respect to this issue.
Among the legal systems that have not expressly provided a legal
definition of criminal negligence, the most noteworthy are the German legal
system, on the one hand, and the Spanish legal system, on the other hand.
1 Cristinel Ghigheci - Transilvania University of Braov, Judge of the Brasov Court of Appeal,
2 Article 16 (4) of the Criminal Code in Romania shows that the offense is committed by negligence,
when the perpetrator: a) provides for the result o f his deed, but does not accept it, without
justification that it will not occur; b) does not foresee the outcome of his deed, though he should
have been able to foresee it. In accordance with paragraph (6) of Article 16 of the Ro manian
Criminal Code, the offense committed by negligence constitutes an offense only when the law
expressly provides for it – for details see Aurel Pasat, Customs offenses according to the legislation
of the Republic of Moldova and Romania, Adjuris Publishing House, Bucharest, 2018, p.166.