Observations on the Prior Complaint's Limitation Period of the Injured Party

AuthorLecturer Angelica Chirila, PhD - Lecturer Dragu Cretu, PhD
Position"Danubius" University of Galati

In order for a prior complaint to be effectual and to produce specific judicial effects, this has to be lodged by respecting a certain due date. In modern legislations, the lodging of a prior complaint is generally provided within a relatively short unanswerable date (much shorter than the prescription term of the penal action), (Volonciu, 1996) which disregard leads to the laps of plea. The reason of this limitation period is represented by, on one hand, the social and particular interest of not letting the victim, through her will to keep her supposed or real transgressor longer under the menace of a prior complaint, which could lead to blackmail or other forms of psychic constraint (Pop, 1948) and, on the other hand, the presumption that after a pretty long term for decision and action, she will no longer want or has a serious reason in order to make the plea.

The prior complaint appears like a suspensive condition of the penal judicial report's efficiency; it is natural for the suspensive effect of this condition to be tight to a certain due time, it's overhaul making the penal law no longer be incident. It is not possible for the victim to have the freedom of making a prior complaint for the duration, the social juridical interest being the triggering of the judicial activity in a certain time interval. If the victim did not make the prior plea respecting the term provided by the law, it is presupposed that she gave up the right by law to fulfil the condition on which depends the yield of the state right to call to account the law breaker.

The time limitation of the victim's right to make a prior complaint answers also the common aims of procedure data of assuring the dispatch in the trial and solving of causes (Mrejeru & Mrejeru, 2008).

The legislator from 1968 provided a general term during which the victim could address with her prior complaint to the penal control unit and a second term, shorter, during which the victim addressed to the trial commission1 in order to unfold the reconcilement procedures for the statutory infractions, could make a prior complaint to the law court.

The Law no. 104/1992 abated entirely the Law no. 59/1968, dissolving the trial commissions and eliminated the par. 3-5 of the art. 284 C.C.P. with respect to the date within which one can lodge the complaint to the law court, after the effectuation of the procedure by the trial court, condition which intervened in the reconcilement of the parts.

Nowadays, there is a unique term of two months for the lodging of the prior complaint for all types of infractions provided by the art. 279 C.C.P. According to the art. 284. C.C.P., in the case of infractions for which the law states that there is a necessary prior complaint, this must be lodged within 2 months from the day the victim knew who transgressor was (lined.1), and according to the second lined of the same article, in the case the victim is under-age or incapable, the 2 months interval starts from the day the person entitled to press charges knew who was the transgressor.

Unlike the current regulation, the previous one had its basis in the Penal Code, and the time for lodging a prior complaint was of 3 months (Theodoru, 2008) and it started since the day the victim or the Public Ministry got acquainted to the infraction and knew who was the tortuous (cumulative conditions, and not alternative) (Pop, 1948).

In the literature of specialty (Titian, 2002), the solution of the court was criticized, which without a verification if at the time of the lodging of the victim's prior complaint, there was a contract which entitled her lawyer to lodge the prior complaint in her name and for her, illicitly it was discovered the lateness of the prior complaint, without being elucidated carefully the relevant circumstances for both parts, meaning if whether the prior complaint was or not lodged during the legal time interval by the victim through special warrant.

In comparison to the previous regulation, the literature of specialty (G.Antoniu, V.Papadopol,

M.Popovici, & B.Stefănescu, 197, and the judicial practice2 considered in majority3 (N.Buzea, 1944) that the 3 months interval as a substantial term of prescription and statutory in the Penal Code, it was calculated according to the dispositions of this code; as a substantial term it was subjected to caveat and adjournment as any term of prescription.

Differences of opinions existed also in the actual regulation, within which the legal basis of the 2 months term is represented by the Code of Penal Procedure.Therefore, it was stated that the term for lodging the prius complaint was a substantial term, which can be suspended and adjourned like any prescription of penal responsability, being calculated...

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