The relation between the criminal action and the civil action

• Author: Bogdan Florin Micu
• Position: Associate Professor, PhD, Dean of the Law Faculty, 'Nicolae Titulescu' University
• Pages: 118-128

LESIJ NO. XX, VOL. 1/2013

THE RELATION BETWEEN THE CRIMINAL ACTION AND THE

CIVIL ACTION

Bogdan Florin MICU

Abstract

In Romania, the free access to the law is considered a fundamental human right, enriched by the

Constitution itself. In practice, the committing of an illegal act may cause prejudice, being described as a

civil offense, but at the same t ime may create a r eport of criminal law, attracting the criminal liability, in

which case it is called offense. This is how we find in the jurisprudence, both civil action and cri minal

action, so that, in this study we try to present some singularities of these two types of actions, and of the

relation between them.

Keywords: free access to law, legal action, criminal action, civil action, the Criminal Procedure

Code.

1. The Legal Action

The Romanian Constitution, in art. 21 enshrines the right of every person to have free

access to law for protecting the rights, freedoms and legitimate interests of the persons, such

right being qualified b y the constitute legislator as a fundamental human right. Internally, the

free access to law is not provided only in the Constitution; we also find it in the Law no.

304/2004 on the judicial organization.

1 Law no. 304/2004 contains 4 articles in Chapter II

entitledă“the free access to law”,ăfromăwhichăcontentsăisărevealedătheălegală frameăofătheăexertionă

of this right, namely art. 6-9.ă Foră example,ă art.ă 6ă hasă theă followingă content:ă “any person can

address to the law for protecting his rights, freedoms and legitimate interests in exerting his

right to a fair trial”.ăAlsoăweă noteăthatătheăaccessătoălawăisăals o consecrated internationally, such

asătheăUniversalăDeclarationăofăHumanăRightsăart.ă10:ă“anyăpersonăisăentitled ăinăfullăequalityătoăaă

fair and public hearing b y an independent and impartial tribunal, which will decide on his rights

and obligations or on anyăcriminală chargeăagainstăhim”,ăEuropeanăConventionăonăHu manăRightsă

in art. 6, th e Charter of the Fundamental Rights in art. 47, paragraph (2). Thus, accordin g to the

European regulations, the free access to law requires the fulfillment of there conditio ns: the

validity of law, the independence of law and the impartiality of law.

The procedure whereby any person may defend his harmed rights and interests is the legal

action.ăFromă theăperspectiveă ofătheă civilălaw,ă theălegală actionăhasă beenăd efinedăas:ă “the way of

law, the ability, the faculty, the legal power, conceded to anyone, of obtaining with the forms

and in the conditions required by the law, the recognition and realization of a personal right,

thus, it represents his social protection in its most expressive and effective form2”.ăAccordingătoă

 Associate Professor, PhD, Dean of the Law Faculty, “Nicolaeă Titulescu”ă University (e-mail:

bogdan.micu@gmail.com).

1 Law no. 304/2004 on the judicial organization, published in the Gazette no. 576/ 2004, with the latest

amendment by th e Government Emergency Ordinance no. 23/2012 for the amendment and completion of

the Law no. 303/2004 on the status of the judges and t he prosecutors and on the extension period provided

in art. III from Title XVI of Law no. 274/2005 on the property and justice reform and several additional

measures, published in the Gazette no. 383/2012.

2 Herovanu,ă E.ă „Teoria exeucuiunei silite” (The Theory of Forced Executive), R. Cioflec Library

Publishing,ă Bucharest,ă 1942,ă p.ă 18.ă ă Ciobanuă V.ă M.,ă „Tratat teoretic şi p ractic de procedur civil”,ă