Autor: Mioara-Ketty GUIU
Publicat în:
Revista Dreptul nr. 9/2019
Revistă disponibilă online:
The relation of the general part to the special part of criminal law
The object of the general part of criminal law and its relation to the special part are still uncertain, and this is because the criminal doctrine has always neglected the general criminal norms, by focusing its attention on the norms of incrimination, which are specific to the special part. In relation to these matters, the doctrine often makes contradictory statements and, as a result, some authors have deducted that the connection between the general part and the special part of criminal law is that of a general law (common law) and a special law (exceptional law), so that a possible conflict between a general criminal norm and a special criminal norm is solved according to the rule specialia generalibus derogant. And, unfortunately, such an opinion tends to become dominant, as evidenced by the fact that the criminal legislator disregards more and more frequently the norms with value of principles of branch, which are included in the general part of the Criminal Code. Therefore, in order to combat this completely unacceptable legislative practice, the author of this paper has intended to point out that the general part is a framework-law, with a higher legal value, while the special part is a (derived) subordinate law, which can only specify (clarify) the norms of the general part, but can never derogate from them. However, starting from this premise, the author has noticed that the persisting doubt about the relation between the two parties also has a deeper cause, which resides in the fact that no modern legislator has been preoccupied with determining and explicitly providing the general conditions and rules of punishment. Although the criminal doctrine has, for a long time, noticed that the norms of incrimination lay down special rules of punishment, the scope of which is limited to a specific, well-determined offence, however, in the absence of general rules of punishment, it has concluded wrongly, that the incrimination norms are autonomous independent norms, while general criminal norms are derived (secondary) norms. Consequently, the author has attempted to determine, by herself, the general conditions and rules of punishment, and thus she has attributed a completely different meaning to the so-called „causes of non-culpability” („of irresponsibility” or „of non-imputability”). In her opinion, the norms which enshrine these causes are not at least secondary (derived) norms, which supplement the norm of incrimination, as the dominant doctrine requires, but are autonomous norms, which, in fact, set the general conditions of punishment, as well as the common rule in the matter, according to which „in principle, the offender is punished by the law for the committed offence”. And, going further, the author has come also to other conclusions, such as: the fact that the only essential condition of application of punishment is the offender; the fact that we need to distinguish between a perpetrator(the author of a crime) and an offender(the author who can be punished, for committing a crime); the fact that, in any „criminal law”, the fundamental notion is that of punishment, and by no means that of offence, etc.
framework-law; subordinate law; offence; offender; punishment;