Autor: Mihai DUNEA
Publicat în: Revista de Științe Juridice Supliment 2015
Disponibil online: aici.
About clarity and obscurity in expressing the constitutive content of incriminating norms, when regulating mitigating or aggravating legislative trends in the field of criminal policy. Reflections on the determination of a specific legal nature for the provisions of art. 308 of the Criminal Code as
established by the mandatory jurisprudence of Romania’s Supreme Court
Abstract: The present article continues the post-doctoral research preoccupations of the author, being part of a research project upon the topic: “Modernization of the criminal law and the normative model: between expectation (desideratum) and reality in expressing the criminal policy of mitigating or aggravating invoice”. The object of the study is the observation and analysis of legislative reality, respectively of the reasonable scientific aspirations in what should represent the appropriate ways in which the legislature may express ( especially thru rules of incrimination), its mitigating or aggravating tendencies (in relation to certain standards of reference, represented by particular offences). This analysis is confined to the presentation and critical commentary of a binding decision (for the legal practice in Romania), issued by the Supreme Court, relating to the legal nature of a provision of the current Romanian Criminal Code (art. 308), which established that the provision in question is an attenuated form of a / of several offence(s) regarding corruption and/or work-related misconduct, rather than a self regulated (autonomous) offence, or a particular (special) cause of reduction of punishment.
Keywords: art. 308 of the Romanian Criminal Code; some corruption and / or work-related misconduct offences committed by ordinary clerks (“private servants”, not public officials / functionaries); attenuated form of an offence; special cause of mitigation of punishment; self regulated (autonomous) offense; Decision no. 1/2015 of the panel of judges from the Romanian High Court of Cassation and Justice, with authority to pronounce prior rulings for the mandatory unraveling of some controversial issues of law.