Шифрованите понятия в Наказателния кодекс

Резюме:

Traditionally, ever since the first Criminal Act (1896) until present day, some elements of the legal notions – “sanity” and “insanity”, “negligence”, “accidental act”, “eventual intent”, “voluntary refusal” – have been “encrypted” by the legislator. The legal notions’ content is “encrypted” in two ways. It is either unnecessarily “packaged” in the respective notion or phrase (“inherence” and “significance”, “under own incitement”), or “coded” through the polysemy of the word used for its denotation, which causes uncertainty as regards the concrete meaning with which it has been used (“could”/“could not”), or which creates conditions for the confusion of the meaning that the legislator had had in mind with another meaning of the word (“assumed”). In the article is proposed the replacement of the phrases “could understand the inherence and significance” (Art. 31(2) CC) and “could not understand the inherence and significance” (Art. 33(1) CC) with, respectively, “had the mental abilities to foresee the factual consequences of the act and their socially dangerous nature” and “did not have the mental abilities to foresee the factual consequences of the act or their socially dangerous nature”; also – “could foresee” (Art. 11(3) CC) with “had the possibility to foresee”, and, in Art. 15 CC (“Accidental Act”), “could not foresee” with “did not have the possibility to foresee”. The volitional element of the eventual intent in Art. 11(2) CC ought to be correctly redefined as consent with the occurrence of the socially dangerous consequence and the own incitement of the voluntary renunciation – as realization of the possibility (for committing or finishing the crime).

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