THE FORTUITOUS EVENT AND THE STATE OF EXTREME NECESSITY WITH REGARD TO THE OFFENCES SET OUT IN art.264 OF THE PENAL CODE

Nicolae POSTOVANU Universitatea de Stat din Moldova

Аннотация

The application of the penal liability for an act committed without guilt would produce the effect of objective incrimi-nation, action that would contravene the principle of personal side of the penal liability, established by art.6 PC RM. With regard to the offences with formal composition, the two criteria of the obligatory awareness considering the prejudicial nature of own action or inaction (the objective criterion of negligence) and the possible awareness considering the prejudicial nature of own action or inaction (the subjective criterion of negligence) are the elements that make the differentiation between the act of negligence and the act committed without guilt. With regard to the offences with material composition, the two criteria of the obligatory capacity to foresee the prejudicial consequences (the objective criterion of negligence) and the possible capacity to foresee the prejudicial consequences (the subjective criterion of the negligence) are the elements that make the differentiation between the act of negligence and the act committed without guilt. With regard to the act of negligence, both these criteria are present. What concerns the act committed without guilt, either one or both of these criteria are missing. With regard to the act committed in a state of extreme necessity, there cannot be considered the possible absence of guilt. Art. 20 PC RM does not constitute a general norm for art. 38 PC RM. The guilt considering the act committed in a state of extreme necessity can be expressed either through the intention or by the recklessness that degenerates into exaggerated confidence.
Keywords: guilt, fortuitous event, negligence, the technical possibility of avoiding or preventing the road accident, reaction time, driving dexterity, extreme necessity, imminent danger.