Regulating negligence in German and in Spanish criminal law

• Author: Cristinel Ghigheci
• Position: Transilvania University of Bra?ov, Judge of the Brasov Court of Appeal, Romania, cristinelghigheci@yahoo.com.
• Pages: 39-47

Regulating negligence in German and in Spanish criminal law

Lecturer Cristinel GHIGHECI1

Abstract

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

system.

JEL Classification: K14

1. Introduction

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 Braov, Judge of the Brasov Court of Appeal,

Romania, cristinelghigheci@yahoo.com.

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.