Consideratii în legătură cu schimbarea încadrării juridice a faptei dintr-o infracłiune care se urmăreste din oficiu, într-o infracłiune pentru care e
Reflections on the modification of juridical nomination of a criminal act - from an offence prosecuted ex oficio to one requesting preliminary complai

Summary/Abstract: “Modification of the juridical nomination” represents the operation through which the criminal judicial organ, seeing that there is another text of law that describes and punishes the act performed by the perpetrator, establishes a different legal ground for penalizing this act. The doctrine and jurisprudence have not held a unified viewpoint on the incidence of this procedure. The study is restricted to investigating the penal effects brought on by an act that, after initially receiving a juridical nomination that corresponds to an offence legally pursued ex oficio, is given a new juridical nomination, corresponding to an offence for which the preliminary complaint is necessary. According to art. 279 of the Criminal Procedural Code, the preliminary penal complaint can be addressed either to the prosecuting bodies, or to the court of law. In a first section, the study analyzes the situation in which the act is to receive a juridical nomination that requests preliminary complaint. In this case, the body in charge of the criminal research asks the injured party if it intends to file such a complaint; if given a positive answer, it either continues the investigation, or sends the dossier to the competent court. In given a negative answer, it will send the file to the prosecutor, in view of terminating criminal pursuit. Starting from the legal text, the author shows that, contrary to some doctrinarian and jurisprudential opinions, it is not necessary for criminal pursuit to have begun, due to the active role of judicial bodies. An exception is described by the situation in which the judicial body finds that, due to the new juridical nomination, another body is competent to deal with the issue. In this case, the dossier will directly be sent to the supervising prosecutor, in order for the notification of the competent body, who in turn will ask the injured party if it intends to file a preliminary complaint, and then act in consequence. In what regards the situation in which a direct preliminary complaint is needed, the author presents the two solutions identified in the jurisprudence: either the prosecutorial body will decide not to begin criminal pursuit, will convey this resolution to the injured party and will inform her of the right to file a preliminary complaint, or after deciding not to begin criminal pursuit for the offence, will consider the initial complaint as a preliminary complaint, erroneously remitted, and will send it to the criminal court. The author considers that summoning the injured party is both of the competence of the prosecutor and of the body of criminal investigation, arguing that- in most cases of direct preliminary complaint typified by art. 279 letter c - the competence of exerting criminal pursuit belongs to the prosecutor, and, thus, he must be the addressee of the preliminary complaint. In the same context, the author shows that the body of criminal investigation is always compelled to acce

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