Problems in the Legal Practice Regarding the Misfeasance in Public Office
Problems in the Legal Practice Regarding the Misfeasance in Public Office

Summary/Abstract: In criminal matters, the principle of legality of incrimination “nullum crimen sine lege, nulla poena sine lege”, requires that only the Parliament can determine the conduct the primary recipient of the law has the obligation to observe and under no circumstances other authorities in the adoption of secondary regulatory acts.In connection with the offense of malfeasance in office, the Constitutional Court of Romania has decided by Decision No. 405/2016 that the provisions of Art. 246 of the 1969 Criminal Code and Art. 297 of the current Criminal Code violate the provisions of Art. 1 par. (4) and (5) of the Constitution by allowing the configuration of material component of the objective side of the offense of offense of malfeasance by the activity of other authorities, other than the parliament or the government by adopting ordinances and emergency ordinances.Therefore, it was ascertained that it occurred a change of the elements of the offense of malfeasance in office in terms of the objective side, the applicability of this crime being limited by excluding all the cases where the alleged regulation broken by an active participant to the offense, is not a law, an order or an emergency ordinance.As the recent practice of the courts of law showed different interpretations regarding the existence of the constituent elements of the offense malfeasance in office, this article will analyse the legal issues involved and practical solutions in the light of the above-mentioned decision.

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