Self-defence in special situations

Author:Lamya-Diana H?r?t?u
Position:PhD Candidate, Teaching Assistant, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (e-mail: av.ldk.ro@gmail.com).
Pages:192-198
SUMMARY

In the reality of practical cases and in certain special situations, self-defence may present some complex forms consisting either in accidental amplification of the issue in fact when self-defence is claimed, or in the correlation in fact of self-defence to other cases which remove the criminal nature of act1. For these reasons, we decided to analyse few of such special situations.

 
FREE EXCERPT
LESIJ NO. XXII, VOL. 1/2015
SELF-DEFENCE IN SPECIAL SITUATIONS
Lamya-Diana HĂRĂTĂU*
Abstract
In the reality of practical cases and in certain special situations, self-defence may present some
complex forms consisting either in accidental amplification of the issue in fact when self-defence is
claimed, or in the correlation in fact of self-defence to other cases which remove the criminal nature
of act1. For these reasons, we decided to analyse few of such special situations.
Keywords: self-defense, criminal nature, state authority, acts committed on fault, deviated
counter.
1. Issue of existence or inexistence of
self-defence if the attack co mes from the
representative of a state authority.
1
In time
2
, other specialised works
approached the issue of existence or
inexistence of self-defence if the attack
comes as well from the representative of a
state authority.
Although this issue no longer
represents a problem currently, we have
considered presenting few theories lying on
the base of its settlement.
Abolition theory.
According to this theory, the citizen
had the obligation to submit unconditionally
to the orders and acts of the representative of
authority, enjoying the absolute presumption
of legality.
Liberal theory.
PhD Candidate, Teaching Assistant, Faculty of Law, “Nicolae Titulescu” University of Bucharest ( e-mail:
av.ldk.ro@gmail.com).
1
V. Dongoroz, S. Kahane, I. Oancea, I. Fodor, N. Iliescu, C. Bulai, R. Stănoiu, Theoretical explanations of
Criminal Code, vol. I, Bucharest, ed. Academiei RSR, 1969, p.358.
2
PhD Thesis of D. Clocotici, entitled ”Self-defence excuse of challenge”, under the coordination of prof. Gr.
Rîpeanu, 1971.
3
French journalist, historian and essayist.
4
Declaration of human and citizen rights, 1789; The main scope of this declaration was to provide to every
individual the use and ma intenance of its rights.
According to this theory, it is deemed
that the citizen was entitled to reject the
illegal act of authority. As stated in t he
doctrine, this theory was sustained in France
by Ar mand Carr el
3
in the magazine
”National” dated 24 January 1832, as well as
in front of the jury of Sena on 13 March 1832
by the lawyer Odillon Barrat. Their
assertions relied on the disposals of art. 11 of
the Declaration of human and citizen rights
4
stating that any act exercised by a
representative of the state and without the
acts claimed by law, is arbitrary and
tyrannical.
Intermediary theory.
This theory divided however the right
to turn to defence depending on the
aggressors, more exactly depending on the
authority of aggressing agents. Thus,
submission is deemed obligatory according
to this theory only towards the age nts

To continue reading

REQUEST YOUR TRIAL