Autor: Alin-Sorin NICOLESCU
Publicat în: Challenges of the Knowledge Society, 2015
Disponibil online: aici.
Abstract: In criminal law previous complaint has a double legal valence, material and procedural in nature, constituting a condition for criminal liability, but also a functional condition in cases expressly and limitatively provided by law, a consequence of criminal sanction condition. For certain offenses criminal law determines the initiation of the criminal complaint by the introduction of previous complaint by the injured party, without its absence being a question of removing criminal liability. From the perspective of criminal material law conditioning of the existence of previous complaint ,its lack and withdrawal, are regulated by art. 157 and 158 of the New Penal Code, with significant changes in relation to the old regulation of the institution . In terms of procedural aspect , previous complaint is regulated in art. 295-298 of the New Code of Criminal Procedure. Regarding the withdrawal of the previuos complaint, in the case of offenses for which the initiation of criminal proceedings is subject to the existence of such a complaint, we note that in the current Criminal Code this legal institution is regulated separately, representing both a cause for removal of criminal liability and a cause that preclude criminal action. This unilateral act of the will of the injured party – the withdrawal of the previous complaint, may be exercised only under certain conditions, namely: it can only be promoted in the case of the offenses for which the initiation of criminal proceedings is subject to the introduction of a previous complaint; it is made exclusively by the rightholder, by legal representatives or with the consent of the persons required by law for persons lacking legal capacity or having limited legal capacity;it must intervene until giving final judgment and it must represent an express and explicit manifestation. A novelty isrepresented by the possibility of withdrawing previous complaint if the prosecution was driven ex officio, although for that offense the law requires a previous complaint in the sense that the withdrawal takes effect only if it is appropriated by the prosecutor.
Keywords: crime, previous complaint, criminal action, withdrawal of previous complaint.