Concept of Dolus Alternativus (Indeterminatus) and its Significance in Criminal Law
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Abstract
This article discusses the concept of dolus alternativus (indeterminatus) in criminal law. The Latin notion dolus alternativus does not have a direct translation in English. Dolus includes not only what common law would call intention and knowledge, but also some cases of recklessness (so called dolus eventualis). Notion of dolus altenativus (indeterminatus) is widely used in Lithuanian judicial practice but also it is a subject for heated discussion among scholars of criminal law. Firstly, scholars debate whether notions dolus alternativus and dolus indeterminatus have the same meaning. This article contends that dolus can not be undetermined. It is determined by the elements of one or several crimes, so it only may be specific or alternative but not undetermined. The second issue in the debate is whether dolus alternativus may include dolus eventualis or whether it should be limited only to cases of alternative specific intent. Examples from judicial practice show that it is possible for a perpetrator to act having several forms of mens rea regarding different consequences of an act. On the other hand there are no logical or systemic reasons to limit the notion of dolus alternativus to the cases of alternative of specific intents. Therefore the article contends that dolus alternativus may include dolus eventualis.
The third issue discussed in the article is validity of the rule that in the case of dolus alternativus a perpetrator is liable only for those consequences of his act which in fact occur. The article contends that this rule ignores the real danger of intentional crimes where decisive criteria are intentions leading to an act but not the factual consequences of the act. On the other hand, this rule also violates the principles of conflict of rules as liability for (and intention to commit) a more serious crime may not be substituted by liability for a less serious crime. Fallowing the rule mentioned above liability for mild factual consequences (i. e. bodily injury) would replace liability for an attempt to commit a more serious crime (i. e. an attempt to murder) and it would be unjustifiable.
Finally, the article concludes that classification of dolus into determined and alternative does not have any added value in criminal law. As specific rules of qualification of crimes in case of dolus alternativus are not valid, classification of dolus into dolus directus and dolus eventualis is sufficient for the needs of the criminal law.
The third issue discussed in the article is validity of the rule that in the case of dolus alternativus a perpetrator is liable only for those consequences of his act which in fact occur. The article contends that this rule ignores the real danger of intentional crimes where decisive criteria are intentions leading to an act but not the factual consequences of the act. On the other hand, this rule also violates the principles of conflict of rules as liability for (and intention to commit) a more serious crime may not be substituted by liability for a less serious crime. Fallowing the rule mentioned above liability for mild factual consequences (i. e. bodily injury) would replace liability for an attempt to commit a more serious crime (i. e. an attempt to murder) and it would be unjustifiable.
Finally, the article concludes that classification of dolus into determined and alternative does not have any added value in criminal law. As specific rules of qualification of crimes in case of dolus alternativus are not valid, classification of dolus into dolus directus and dolus eventualis is sufficient for the needs of the criminal law.
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