Withdrawal of previous complaint. A comparison of the old and the new criminal code. problems of comparative law

Author:Alin Sorin Nicolescu
Position:Judge, Chairman of the Criminal Section of Gorj Court; PhD Candidate, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (e-mail: alin.nicolescu@just.ro).
Pages:165-185
SUMMARY

In criminal law previous complaint has a double legal valence, material and procedural in nature, constituting a condition for criminal liability, but also a functional condition in cases expressly and limitatively provided by law, a consequence of criminal sanction condition. For certain offenses criminal law determines the initiation of the criminal complaint by the introduction of previous complaint by the injured... (see full summary)

 
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LESIJ NO. XXII, VOL. 2/2015
WITHDRAWAL OF PREVIOUS COMPLAINT.
A COMPARISON OF THE OLD
AND THE NEW CRIMINAL CODE.
PROBLEMS OF COMPARATIVE LAW
Alin Sorin NICOLESCU*
Abstract:
In criminal law previous complaint has a double legal valence, material and procedural in
nature, constituting a condition for criminal liability, but also a functional condition in cases expressly
and limitatively provided by law, a consequence of criminal sanction condition. For certain offenses
criminal law determines the initiation of the criminal complaint by the in troduction o f previous
complaint by the injured party, without its absence being a question of removing criminal liability.
From the perspective of criminal material law conditioning of the existence of previous complaint,its
lack a nd withdrawal, are regulated by art. 157 and 158 of the New Penal Code, with significant
changes in relation to the old regulation of the institution . In terms of procedural aspect, previous
complaint is regulated in art. 295-298 of the New Code of Criminal Procedure. Regarding the
withdrawal of the previuos complaint, in the case of offenses for which the initiation of criminal
proceedings is subject to the existence of such a complaint, we note that in the current Criminal Code
this legal institution is regulated separately, representing both a cause for removal of criminal liability
and a cause that preclude criminal action. This unilateral act of the will of the injured party - the
withdrawal of the previous complaint, may be exercised only under certain conditions, namely: it can
only be promoted in the case of the offenses for which the initiation of criminal proceedings is subject
to the introduction of a previous complaint; it is made exclusively by the rightholder, by legal
representatives or with the consent of the persons required by law for persons lacking legal capacity
or having limited legal capacity;it must intervene until giving final judgment and it must represent
an express and explicit manifestation. A novelty isrepresented by the possibility of withdrawing
previous complaint if the prosecution was driven ex officio, although for that offense the law requires
a previous complaint in the sense that the withdrawal ta kes effect only if it is appropriated by the
prosecutor.
Keywords: crime, previous complaint, criminal action, withdrawal of previous complaint.
1. Introduction. Previous
complaint. General considerations.*
Legal order and civic discipline in a
state of law are established and maintained
by means of rules of law. These rules
prescribe rules of co nduct, which must be
* Judge, Chairman of the Criminal Section of Gorj Court; PhD Candidate, Faculty of Law, “Nicolae Titulescu”
University of Bucharest (e-mail: alin.nicolescu@just.ro).
1
I. Gorgăneanu - Criminal proceedings, Scientific and Encyclopedic Publishing House Bucharest, 1977, p. 13.
obeyed by the community members as well
as sanctions to be applied in case of their
violation.
The rules of conduct most of them -
are expressed in a particular form: the law
1
in a wider sense (including any normative
act).
166 Lex ET Scientia International Journal
The great philosopher, lawyer and
orator Cicero (106 BC-43 BC) said more
than two millennia before that we are
slaves to law in order to be free.
The establishment by law of the facts
constituting crime, as well as of the
criminal sanctions framework, has a dual
role: first to show the members of society
which are the deeds prohibited by crimin al
law and also to warn them about the
consequences of committing suc h deeds,
thus fulfilling the function of general
prevention and secondly to ensure the
correct framing of the facts that infringed
the penal law, and a fair sanction for those
who committed such acts, with a special
preventive function.
In Article 1 of the Criminal Cod e, the
law provides the acts constituting o ffense,
the penalties that are applied to offenders
and the measures that can be taken when
committing such acts.
Commiting an offense, even when it is
discovered and proved by the
administration of evidence, adduced against
infringers, do es not require the automatic
application of punishment. In order to reach
punishing the offender criminal justice is
required, meaning his conviction by the
competent court on a trial.
The necessity of restoring the rule of
law infringed by committing crimes led to
the establishment of the rule that initiation
and development of criminal proceedings
are made ex officio (principle of
officialdom of criminal trial). In the case of
minor offenses or those involving
relationships between people or their
personal life, the Criminal Code and o ther
laws with criminal pro visions stipulate that
criminal action can be initiated or exercised
only if the injured per son expressed his/her
will of prosecuting the perpetrator by
2
Milea T. Pop ovici, Pr ior compla int in regulating the pre sent Code of Cri minal Proc edure, RR D No.9 /
1969, p.23.
3
C.Bulai, Criminal Law, General Part, University of Bucharest, 1987, p.469.
introducing a previous complaint to the
courts.
Previous complaint is a criminal
institution, its absence representi ng a cause
of removing criminal liability (art. 157 New
Criminal Code).
The institution has a procedural aspect
which has a direct impact on the possibility
of exercising criminal action a nd implicitly
on criminal responsibility.
From the point of vie w of criminal
law, previous co mplaint is a condition of
punishability and in ter ms of procedural
criminal law a condition of
procedurability
2
.
As outlined, in the case of the offenses
for which the law provides the necessity of
previous complaint of the injured person,
criminal action can not be exercised in the
absence of such complaints, art. 295 Code
of Criminal Procedure.
Criminal law determines the cases
when for the exercise of cr iminal action,
previous complaint is r equired, starting
from the circumstance that these o ffenses
are among those which by their nature
concern social relations limited especially
to the personal interests of the parties.
In such cases, it is considered that the
injured are able to determine whether to
start a criminal trial, criminal action being
conditioned by the manifestation of a n
exclusive right of the injured person
3
.
Against the will of the injured criminal trial
it can not take place.
Justification of t he exception
consisted either in a lower degree of abstract
social danger of these facts or in the
circumstance that their bringing to court,
with the advertising involved by the trial,
could be a source of discomfort or distress
to the injured person or would give rise to
various conflicts between people belonging

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