Autor: Darian RAKITOVAN

Publicat în: Journal Of Eastern European Criminal Law no. 2/2016

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Abstract: Even though it is a theoretical question, determining the juridical nature of a juridical institute is in many situations of practical importance. Even so, when this question is being asked regarding the extended confiscation measure – the answer is not easy to be given. More, it seems that all the problems concerning the juridical regulation of this measure start with the above-mentioned determination of its nature. The answer to the question why the juridical nature of this institute is so controversial hides within the numerous specific points that characterize this measure, for how debatable this measure is can be best observed when a comparative analysis of national legislations is being made and by observing the different places this institution occupies within their legal systems. In some jurisdictions, like in the case of Romania and Germany, the seizure of propriety measure has the character of a security measure, in others, like Republic of Serbia and Switzerland it is a sui generis measure, in Denmark is regarded as a specific legal consequence of the crime, while the Austrian Criminal Code includes it under supplementary sentences. The present paper shall make a short analysis of the way “extended confiscation” is being regulated by the Romanian and Serbian legislation. Being guided by the idea of improving the current legislation, the theory is the one that should exercise a positive influence over the legislator, and while wishing in this way to “encourage” the Rumanian legislator to follow the Serbian one on this matter, the accent shall be put on the juridical nature of this judicial instrument, by trying in this way to justify that such a measure must, within the criminal law, be a sui generis one, for which special norms will be applicable, permitting in this sense and assuring a more severe applicability in a more “painful” mode.

Keywords: extended confiscation; seizing of goods coming from criminal acts; juridical nature; Republic of Serbia’s law concerning seizure of goods coming from criminal acts.