2024
Lavinia-Valeria LEFTERACHE, Professor, Faculty of Law, University of Bucharest, Aggravating factors and aggravating circumstances Effects of on penalty limits. Correlating the general part of the criminal code with special rules
DOI: https://www.doi.org/10.31178/AUBD/2024.02
Abstract: The absence of explicit mention of the
legal nature of the aggravation of the penalty in the case of committing a
crime that seeks a patrimonial benefit also stems from the different influence
they have on the main penalty, such as a fine or imprisonment. The consequences
seem to correspond to a dual nature (one similar to the optional aggravation of
the special limits of days-fine, and the other to the addition of the penalty
of the fine to the prison sentence) sui generis (of a special sanction and
alternative to the prison or the fine, by its optional character, in the case
of certain categories of crimes).
Regardless of the legal nature of the institution, special and alternative
sanction in the case of certain categories of crimes or cause of special
aggravation, its consequences are clear in the sense of the aggravation of the
sanction, and the way of applying the text of the law in art. 61 Penal Code.
and art.62 Penal Code, clarify its aggravating character and the mechanism of
individualization.
Against the explicit possibility of derogating from the provisions of the
general part of the criminal code, the question arises related to the limits of
these derogations: it could also be derogated with regard to the general
maximum of the punishment, as regulated in the general part of the criminal
code, or only with regard to the content of the sanctions or also with regard
to the sanctioning regime applicable to certain categories of recipients of the
criminal law, or only in matters that do not influence the legality of
criminalization and punishment within the limits established by the general
part of the criminal code.
In the case of the provision of special aggravating circumstances in the law, in the absence of a special rule, the effect of increasing the penalty can only be that of the general rule.
Key words: punishment, alternative special sanction, crimes aimed at patrimonial gain, aggravating circumstance
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