Theoretical aspects regarding the new offense covered by art. 246 of the criminal code missappropriation of public auctions and offences covered by art. 65 of law no. 21/1996 republished. Competition law

• Author: Rodica Aida Popa
• Position: Lecturer PhD, Judge at the High Court of Cassation and Justice, Offences Department (e-mail :aidap@scj.ro).
• Pages: 166-173

LESIJ NO. XXIII, VOL. 1/2016

THEORETICAL ASPECTS REGARDING THE NEW OFFENSE

COVERED BY ART. 246 OF THE CRIMINAL CODE

MISSAPPROPRIATION OF PUBLIC AUCTIONS AND OFFENCES

COVERED BY ART. 65 OF LAW NO. 21/1996 REPUBLISHED.

COMPETITION LAW

Rodica Aida POPA

Abstract

The present study aims to bring to the attention of the legal law specialists the theoretical aspects

related to a new incrimination as the one covered by ar t. 246 of the Penal Code, the misappropr iation

of public auctions, as well as aspects of yet another incrimination, tha t is the one covered by art. 65 of

Law no. 21/1996 republished-competition la w, trying thus to prevent certa in different interpr etations

about the typicality of the two incr iminations and encourage the p ossibility of highlighting other

arguments that will lead to a n application as accur ate as possible of the two incriminations.

Presently ther e is no case la w for the two incriminations ther efore the theor etical analysis ha s

to pr esent interpreta tion arguments which will help the judicial bodies to ea sily cla ssify the factua l

basis of the content of the two constitutive laws offering the possibility of a more detailed and contextual

interpreta tion in relation to the reality.

The way the public auctions take place is a constant pr eoccupation not only for the par ticipants

who are involved in the procedure and directly interested in a biding the under law and ensuring a fair

competitive climate but also for the public opinion which is as equally interested in ensuring fair social-

economical relationships ba sed on the market principles.

Simultaneously, the way the legal conditions of the second incriminations-that is th e one from

art.65 Law no.21/1996 republished - are interpreted in relation with the competition practices will lead

to the clarification of the norm and its cor rect enforcement.

Keywords: misappropria tion of public auctions, anti-competitional pr actices, constitutive

contents of the two incriminations, fair competitive climate.

1. Introduction

The study of the two incriminations,

that is the one referring to the

misappropriation of public auctions covered

by ar t. 246 of the Penal Code and the one

covered by art.65 of Law no.21/1996

republished-the competition law, presents an

interest from a broad perspective for the

business environment since it deals with

aspects regarding the compliance of some

 Lecturer PhD, Judge at the High Court of Cassation and Justice, Offences Department (e-mail :aidap@scj.ro).

special conditions regarding organizing

auctions as well as ensuring the context of

preventing illegal, anticompetitive practices.

Presently, in Romania the

consolidation and diversification of the

business environment is an important part

not only of the economy but also of the rule

of law; the relationships between partners of

the private environment but a lso the public

sector that can interfere under certain

circumstances, being based of special laws