From ancient times, during the Roman Empire, any person who was subjected to any physical

attack, and later became a victim, had the right to make his own justice, that is, by resorting to
private revenge, and the damage caused to the perpetrator must be equal to the damage caused by
the perpetrator to the victim. This right was based on the law of XII Tables1 and provides several
principles in which any person who become a victim could appeal to them, the principles of
membrum ruptum2, os factum3 and injuria4. So, in other words, the law gave the right to make an
own justice without the fear of being punished and, in this case, the victim clearly provides her
intention to commit an act of revenge. Later, by some reforms, this rule disappeared and instead of
this were applied the fines, which were established by the judges.
In our days, every person has a lot of rights and obligations given by the Constitution5 and
other international treaties and conventions such as European Convention Of Human Rights and
Fundamental Freedoms6. The right of property, the right of private life, the right of inviolability, the
right of defense and many other rights written in the Constitution give the full possibility to any
person to enjoy and to use them. But, besides rights, the constitution imposes individuals on certain
obligations. As an example in this way will be the obligation to respect the law and the principles
provided by it. And in this context, I would like to say, that in a many cases persons forget about
their obligations, invoking, in case of necessity, only the rights that they have without taking in
consideration the damages that could be caused by them. Summarizing all of these, the first
argument which proves the intention of the act of exerting of a legal right is based on the main
purpose and a big desire of any person, in case when his right was infringed, is to defend her right,
to prove that she is right in comparison with the person with which she has a conflict using different
methods such as, for example, appealing to the justice or defending it by her own justice.
As I said, there are cases when the defending of a legal right or a presumed right could cause
some damages by violation of public order to natural or legal persons. So, this act is comprised in
the Criminal Code of RM7 and namely in the article 352 named Arbitrariness. The idea which
comprises this article is that the person defends his legal right or a presumed right in an arbitral way,
causing damages to the public community or to the privates. The expression “in an arbitral way”
means that fact that this act of defending is committed by the person’ own initiative, substituting the
work that should be exerted by competent bodies and persons. The presence of such signs suggests
the idea that the crime of arbitrariness can only be committed intentionally. Based on the doctor’s
thesis of Sergiu Cernomoreţ, he affirms the fact that the “the person who commits the offense of
arbitrariness realizes that exercises a legal right or assumed, arbitrarily and in violation of the
established order ,…, provides that after such acts will occur track as large damages to the interests
public or the rights and interests protected by law of natural / legal persons and wishes or
consciously acknowledges their occurrence”8. So, the second argument in the favor of the

1
The Law of XII Tables – written in 451 before our eras, provides the rules for an agrarian community; established the
equality of peoples and patricians before the laws and was to be appreciated by the Romans, being the source of
public and private law.
2
Membrum ruptum- the victim could cause the same wound to the author
3
Os factum meant a fractured bone and was punished with a fine of 300 asse, if the victim was a Roman and 150 asse,
if he was a slave.
4
Injury or mild violence was punished with a poena of 25 asse.
5
Constitution of RM from 29.07.1994, in force from 27.08.1994
6
European Convention Of Human Rights and Fundamental Freedoms – signed in Rome 4 november 1950
7
Criminal Code of RM Nr.985 from 18.04.2002
8
Sergiu Cernomoreţ, doctor’s thesis “Criminal liability for arbitrariness” pag.79
1
committing of the arbitrariness with intention is that the person knows that he is committing an
illegal act, wants it and, also, wants the results to occur.