Some Considerations on Deceit Offense in the Romanian Criminal Law. Implications in Business Law

• Author: Ion Rusu
• Profession: University of Galati, lawyer, Vrancea Bar, Romania
• Pages: 133-155

Some Considerations on Deceit Offense in the Romanian Criminal

Law. Implications in Business Law

Professor Ion RUSU

1

Abstract

In the present study we have examined th e constitutive content of the fraud of-

fense in the light of the provisions of the new law. Against the backdrop of controversy in

doctrine and judicial practice, we have insisted upon mentioning and summarizing the

incriminations which in their essence constitute special forms of the crime of deception,

such as: insurance fraud, misappropriation of public auctions, illeg ally obtaining funds

and offense stipulated in art.181 of the Law no. 78/2000. Last but not least, we have pre-

sented some opinions expressed in the recent doctrine, as well as Deci sion no. 4/2016 of

the CCCJ, the competent body to hear the appeal in the interest of the law. The novelty

of the study relates to the examination of th e constitutive content of the offense of deceit,

with direct reference to doctrine and judicial practice in the matter, references to the

offenses that constitute the special forms of this crime, the decision of the Supreme Court,

and the implication s of this crime in the environment business. The work may be useful

for students of law faculties as well as for theoreticians and practitioners of criminal law.

This research continues the research in this field, which will be materialized by the pub-

lication of a criminal law course, the special part.

Keywords: constitutive content; special forms of the crime of deception; judicial

practice

JEL Classification: K14

1. Introduction

The deceit is the deed of a natural or legal person who, in order to obtain

an unfair material advantage for himself or another person, misleads another nat-

ural or legal person by presenting as true a false or untrue act of a true deed.

In addition to the type of normative way, the offense that we submit to

the examination also presents an aggravated way that will be taken into account

when the act is committed by the use of names or lying qualities or other fraudu-

lent means.

The doctrine of the second half of the last century considered that “Deceit

is part of the patrimonial crimes (against the beast) in terms of group classifica-

tion and, in the context of its specificity, in the subgroup of patrimonial offenses

committed through an act of deception, that is, an act of misleading by forgery of

1

Ion Rusu - “Danubius” University of Galaţi, lawyer - Vrancea Bar, Romania,

av.ionrusu@yahoo.com.

Diversity and Interdisciplinarity in Business Law 134

truth, on the occasion of the formation, modification or termination of a patrimo-

nial legal relationship.

Deceiving personal or private property is a deed that presents a degree of

social danger against which a criminal sanction is necessary, because by doing

so, the minimum of good faith and trust that is necessary for normal training,

development of the patrimonial social relations based on good faith on one side

and trust on the other.”

2

Considering the subject of the study, we will examine the constitutive

content of the offense of deceit, continuing with the general examination of the

crimes that were considered in the doctrine as special forms of the crime of de-

ception, formulating opinions on the effects of these types of crimes in economic

activity in Romania.

2. The Criminal Code in force in relation to the provisions of the 1969

Criminal Code

The offense of deceit was also provided in the Criminal Code of 1969 in

art. 215, in a different way from the original version adopted with the entry into

force of the 1969 Criminal Code.

Besides some elements of similarity, there are many elements of differ-

entiation between the two regulations, all of which are to be examined below.

Thus, as similar elements, we mention the marginal name as well as the

inclusion of the offense in the group of crimes against patrimony.

Also, the legal content of the offense in the simple normative (type) way

of paragraph (1) and in the aggravated mode provided for in par. (2) Criminal

Code, is identical to that mentioned in art. 215, par. (1) and par. (2) of the Crim-

inal Code of 1969, with the exception of penalty limits.

In both regulations, the aggravated normative way was maintained,

which was retained in case of particularly serious consequences.

As elements of differentiation we note the renunciation of the current

legislator to the incrimination of the two aggravated normative modalities stipu-

lated in art. 215, par. (3) and (4).

Significant differences also arise with regard to the sanctioning regime,

the penalties provided for in the new law being much lower, respectively: impris-

onment from 6 months to 3 years compared to the 6 months to 12 years impris-

onment in the old law, for the offense provided in paragraph (1) of art. 244 Crim-

inal Code and art 215 of the Criminal Code from 1969; the imprisonment from

one to five years in the new law, compared to the imprisonment from 3 to 15

2

Vintilă Dongoroz in Vintilă Dongoroz (scientific consultant & coord.), Siegfried Kahane, Ion

Oancea, Iosif Fodor, Nicoleta Iliescu, Constantin Bulai, Rodica Stănoiu, Victor Roşca, Explicații

Teoretice ale Codului Penal Român, vol. III, Partea specială/Theoretical Explanations of the

Romanian Criminal Code, Special Part, Ed. Academiei Republicii Socialiste România, Bucharest,

1971, pp. 525-526.