LESIJ NO. XX, VOL. 1/2013
THE RELATION BETWEEN THE CRIMINAL ACTION AND THE
Bogdan Florin MICU
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
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
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:
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 exeucuiunei 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