THE EXERCISE OF A RIGHT OR THE CARYING OUT OF AN OBLIGATION — JUSTIFIED CAUSES REINTRODUCED INTO THE NEW ROMANIAN CRIMINAL CODE

Abstract

This study aims to analyze an old concept, namely, the exercise of a right or the performance of an obligation as one of the justified causes, reintroduced into the new Romanian Criminal Code after more than 40 years. Even having a long history of existence within the Romanian criminal codes adopted in 1864 and 1936, during the communist era, once adopted the Romanian Criminal Code in 1968, in force until 1-st of February, 2014, this justified cause had been removed. At the time, the communist legislator considered as being useless to mention it among the other causes which can remove the criminal liability. The doctrine of the time argued that a criminal fact committed when carrying out an order given by the law or the competent authority didn’t meet the criteria of being a crime, because it lacks the mental element, mens rea.

The practice of nowadays demonstrated, the question under discussion is not so easy, the lack of mens rea cannot be always raised as a defense and therefore, the legislator realized the necessity of reintroducing the exercise of a right or the performance of an obligation as one of the justified causes.