Efectele adopției asupra posibilității reținerii infracțiunii de incest în sarcina rudelor biologice. Opinie privind problema de drept ce a condus la pronunțarea Deciziei HP nr. 52/2021 în materie penală
The effects of adoption on the criminal liability of a biological relative for the crime of incest. Opinion on the legal issue which led to the Decision no. 52/2021 (preliminary ruling on a legal issue in criminal matters)

Summary/Abstract: The drafting of the present article started from a legal issue encountered by the national courts. The questions addressed to the High Court of Cassation and Justice for the preliminary ruling raise specific difficulties, such as the corroboration of different legal statutes: the Criminal Code and the Civil Code. The first issue we tackled in this study is the interpretation of the notion „relatives in a direct line, brother or sister” found in art. 377 of the Criminal Code. The interpretation of this text must consider art. 405-407 of the Civil Code, as well as art. 177 of the Criminal Code, which contains a different definition for a similar notion. Thereafter we approached the issue of establishing if the authors of the crime of incest are relatives when this legal status has not been already established in civil status documents. Also, we addressed the possibility for the criminal court to establish if the authors are relatives using art. 52 of the Criminal Procedure Code and the exceptional hypothesis when this falls under the exclusive jurisdiction of the civil courts. Lastly, we analysed the effects produced by the judgment establishing the legal status of relatives for the authors of the crime of incest. The present study also tackles issues such as the legal object of the crime of incest and the evolution of the legal statues incriminating this act, the methods to prove the legal status of relatives and the difficulties that can be encountered by the criminal courts and the difference between the legal notions of filiation versus relatives.

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