George-Alexandru LAZĂR, Putative offence. Case study upon the consequences of the subject’s error in corruption crimes

Abstract: The present approach seeks to analyse, in a comparative manner, the two prominent schools of thought regarding the putative offence, considering the possibility of conviction for attempt or giving credit to the thesis of impunity. In order to properly qualify the different perspectives reflected in the available case law and scholarly studies a point of departure should be the different forms of error which justify the application of putative offences judicial treatment: the reverse error of fact and the reverse error of law. 

Beyond native scholarly studies, the present paper deals with elements of comparative law, as well as the reasons for which French‑inspired systems of law have known jurisprudential revivals in this domain. Last but not least, we have proposed an analysis of the available case law, which underlines the different approaches in the application of putative offences. This lack of jurisprudential cohesion claims a clear regulation of the institution and the creation of a legal framework in accordance with the principle of foreseeability.

The article also presents the differences in the application of the 2014 Criminal Code in comparison with the previous legislation, and the importance of the idoneous character of the criminal act in the current legislation. Although this represents a point of departure in solving the issues inherent to the institution of putative offences, the State must clearly define its criminal policy in this domain, since technical and legislative arguments plead for criminal liability, while historical and teleological arguments justify impunity in the application of the putative offence.

 Keywords: putative offences, attempt, idoneous, error, reverse error of fact, reverse error of law, outcome offences, offences of danger, material object, legal object, the result of the offence, corruption crimes, bribery, public agent error regarding his obligations, undercover agent, integrity tests for the personnel of the Ministry of Interior

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