VARIABILE JURIDICE ÎN SFERA PENALĂ CONTEMPORANĂ: CAZUL CONSTRÂNGERII PSIHICE

Abstract

Mental coercion is one of the circumstances that eliminate the criminal nature of an act that is insufficiently regulated by the Criminal Code of the Republic of Moldova. The legislator establishes its general marks in art. 39 of the Criminal Code, without making a clear distinction between the effects of the application of physical and mental coercion. More than that, paragraph 2 of art. 39 of the Criminal Code of the Republic of Moldova provides that criminal liability is governed by the conditions established in art. 38 of the Criminal Code of the Republic of Moldova, which means the conditions of the state of extreme necessity. Mental coercion (also called “moral coercion” in other legislations) is considered to be an “old” institution of criminal law, although, for the Republic of Moldova, it is a relatively new circumstance that eliminates the criminal nature of an act. The motivation for the appearance of this circumstance that eliminates the criminal nature of an act, the limits of its application, the effects of finding its existence, the “criminal-moral” relationship in establishing the deed committed in the conditions of mental coercion are just some of the aspects related to this circumstance. In this article, our approach is based on the absent or contradictory conclusions of the doctrine, but also the practically non-existent jurisprudence referred to the mental coercion as one of the circumstances that eliminate the criminal nature of an act. But before elucidating the questions that are raised, we propose some short incursions in the historical evolution of this circumstance that eliminates the criminal nature of an act and also the evocation of some aspects of the comparative criminal law. For the examination of mental coercion, we propose a complex approach, not only from the perspective of criminal law, but also through the prism of moral norms.