Acta Universitatis Danubius. Juridica, Vol 4, No 1 (2008)

Abstract

Holding responsible a person for criminal liability is necessary if he commits an act that combines, both objective and subjective aspects, the required elements of a specific incrimination rule. The transformation of simple apparent crime takes place among others, also in the existence assumption of some facts which, although it accomplishes all the objective and subjective conditions imposed in the incrimination rule, in reality there are no illicit facts, but facts permitted by the law; in such cases it will not exist offense and by consequence it will be excluded both criminal liability and punishment (example gratia: justificative causes). This category of justificatory cases, fit to transform the apparent crime expressed in removing the criminal nature of the committed act, belongs to both legitimate defense and error of fact, which are stipulated in the Criminal Code, article 44 and article 51. In our approach, however, we do not intend to deal with those two institutions of criminal law - self-defense or error of fact - but we try to express a point of view on the existence and the effects that the legitimate putative defense produces – the state resulting from the contest of the two - the institution of criminal law, less dealt with in the doctrine for the judicial practice, although we believe that it is a reality that can not be challenged.