Login or register free and only takes a few minutes to participate in this question. You will also have access to many other tools and opportunities designed for those who have language-related jobs or are passionate about them. Participation is free and the site has a strict confidentiality policy. The KudoZ network provides a framework for translators and others to assist each other with translations or explanations of terms and short phrases.
|Published (Last):||8 September 2005|
|PDF File Size:||4.47 Mb|
|ePub File Size:||12.38 Mb|
|Price:||Free* [*Free Regsitration Required]|
The Execution of Criminal Fine Penalty. Abstract: This paper aims at dissecting the criminal provisions on criminal enforcement of fines in current Romanian criminal law with the goal of highlighting the new penal policy stated in the larger field of criminal penalties. In the new Criminal Code the fine penalty experience a new regulation, but also a wider scope compared to the Criminal Code from , with an exponential growth of the number of offenses or variations of them, for which a fine may be imposed as a unique punishment, but, especially, as an alternative punishment to imprisonment.
Consequently, to ensure the efficiency of this punishment, the effective enforcement manner of the fine takes a new dimension. The study aims both students and academics or practitioners in the making. Furthermore, throughout the approach of this scientific research, new matters that new criminal legislation brings, are emphasized regarding this institution, both in a positive, and especially under a critical manner. Keywords: offence; punishment; efficiency; social obligation. As an effective mean of legal constraint, the fine can be criminal, civil, administrative, disciplinary, tax or procedural sanction.
In criminal law, the fine is part of the main penalties and represents the sum of money that the convict is obliged to pay the state. In terms of its substance, its content and object, the criminal fine is a pecuniary penalty. Its repressive character, as a mean of coercion, results from the forced reduction of the condemned patrimony; this forced reduction consists in paying an amount of money, fixed by the state criminal court. The criminal fine, in relation to the repression function performed, can be used either as a principal penalty, in which case it operates as an independent sanction, or as a secondary punishment accompanying another penalty, that complement its function Dongoroz, Historical References.
In the ancient statutes, pecuniary penalties have had a large application. In time, as society had evolved from its rudimentary forms, people have passed from revenge vendetta , as a form of compensation to the inflicted harm 2 , to a form of a monetary arrangement between the victim and defendant. When repression was nationalized, the State understood to claim for its intervention a sum of money, bringing in this way into existence, the fine penalty.
Severe repression provided by the ancient statutes for all those who committed offenses against the community, has also led therefore, to another type of pecuniary penalties, confiscations Dongoroz, Turning back to the contemporary period, the fine is provided by all modern legislations, following an upward trend of resorting to it, both as main punishment and, especially, as an alternative punishment.
In the latest Penal Code system, entered into force on February 1 st , , the fine will operate both as main punishment but also as an additional penalty to imprisonment [ for legal support, see Article 62 1 ]. On the contrary, if we look at the provisions of the Penal Code of , we find that the penalty fine worked only as a main punishment and, in the special part of the code it was always provided as an alternative sentence.
Criminal fine, as any punishment, has all the characteristics of criminal sanctions. Criminal fine has also some specific qualities whose knowledge serves to proper use of this sanction. On the one hand , the fine, by its nature, is versatile, offering ample opportunities scaling and individualizing the punishment in relation to the form of guilt and current possibilities of the offender.
The fine fully realizes both repressive function, consisting in restrictions arising from the deprivation of the amount of money paid as fine, and preventive function, through its intimidating action. On the other hand , in addition to the characteristics shown above, the fine has also some negative features. Thus, its purpose is to exert a constraint only on the individual offender, it hits sometimes indirectly the family of the condemned.
That is because not only he, but also the members feel the consequences caused by the payment of the fine. These flaws are inherent to all sentences.
In one way or another, no punishment can satisfy entirely the social groups, if not well proportioned with guilt. In fact, not the monetary penalties themselves bother, but their wrong application to serious offences V. Dongoroz, In the new Criminal Code, the fine penalty experience a new regulation, but also a wider scope compared to the Criminal Code from , with an exponential growth of the number of offenses or variations of them for which a fine may be imposed as a unique punishment, but, especially, as alternative punishment to imprisonment about 60 in the penal legislation, more than in the new Criminal Code.
Firstly, the judge will not qualify the amount of the fine between minimum and maximum predetermined parameters, according to art. According to art. By making some simple math, we will find that the smallest fine can be equal to lei and the biggest one cannot exceed The same day-fine system is also used for sanctioning the legal persons.
This is multiplied by the number of days-fine, which is between 15 days and days. Thus, the minimum fine that may be imposed to legal persons shall not be less than 1. Secondly , the provisions of the new Criminal Code allow, in art. Thirdly , it is introduced as a novelty, the possibility of replacing the obligation to pay the unexecuted fine with the obligation to perform unpaid community service work, if the fine cannot be executed in whole or in part for reasons not imputable to the person convicted [art.
Finally , the provisions of Article 64 of the new Criminal Code has eliminated the problem that consisted in the impossibility of replacing the criminal fine in case of failing to pay, especially with guilt , with imprisonment for certain situations where it was not provided as an alternative to the fine punishment.
Enforcement of Fines in the Old Criminal Codifications. Paragraph 1 of art. The law did not expressly state if the payment should be voluntary and fully paid, but the submission of payment receipt implied that the payment was paid full and voluntary, and from this moment only the penalty was considered enforced. The competent tax authorities were indebted to receive the payment.
If the convicted person did not have the financial means to pay the fine, the law allowed, according to par. Basically, the convict would have submitted an application to the enforcement court, application whose object was the rescheduling of payment. Depending on the evidences presented by the convict on his bad financial situation, the court admitted or rejected the application as filed. The request could be submitted to the court both before and after the expiry of three months term set by art.
Paragraph 3 regulated the situation of non-payment. Thus, in case of non-payment of the fine fully within the 3 months term or in case of non-payment of an rate, the execution court would submit to competent authorities a copy of that excerpt regarding the fine enforcement to the competent financial body in order to execute the fine according to the law on enforcement of tax claims and with the procedure of those provisions.
The legal provisions related to the criminal fine enforcement for legal persons, were concentrated in the art. Their contents are identical to the provisions of art. Consequently, the explanations given above are applicable to legal persons. Criminal Procedure Code contained provisions aimed at the enforcement of the criminal fine. Thus, in paragraph 1 of art. Also, in the art. In the new Criminal Procedure Code, the legal provisions on the enforcement of fines for individuals can be found in art.
The provisions contain only 2 paragraphs and they are identical to the first two of art. Therefore, the first procedural novelty concerning the enforcement of the criminal fine is that forced pursuit of debts are no longer stated in case of non-payment of the fine within the legal term of 3 months or non-payment of one monthly rate.
Although, to a first sight we will have the impression that the prosecution remains discovered in this area, without any the possibility of recovering the tax debts, this is not the case due to new regulations regarding replacement of the fine with imprisonment, respectively, with the obligation to unpaid community service work.
The enforcement of penalty fines is fulfilled in accordance to the good faith of the convicted by three separate hypothesis. The first , which is the easiest of all to understand, that is simple, fast and efficient that is, in fact, preferable , the convict accepts the judgment of the court and pays the fine for which misdemeanor he was convicted. In the second hypothesis , the convict, even in good faith, cannot pay its fine due to circumstances beyond his control.
In this case the provisions of art. In this situation we can to deal with two solutions according to malleability of the defendant. The first solution implies the replacement of the payment obligation with the obligation to provide unpaid community service work [under art.
The second solution, when the convict does not agree with the replacement, claims the court to replace the payment obligation with imprisonment [under par. For the rigor and for giving meaning to provisions of the art. But, once we arrived to this point, what would happen if our convicted becomes suddenly dishonest? The answer to this question is found in art.
Thus, if the convicted does not perform his required community service under the conditions established, the court will proceed to replacement of the obligation to perform unpaid community service work with imprisonment [under par. On the other hand, if the convicted climbs a higher step on the crime ladder and commits a new crime discovered before the full execution of unpaid community service work, the court shall revoke the community work and replace it with imprisonment [under par.
Finally , in the third case , the malevolent convict, fails to perform the payment obligation of the fine. Based on art. In the next step, the court will proceed to analyze the convict Case, stating the bad faith. In this situation, the payment obligation of the unexecuted fine will be replaced by imprisonment under par. The rules governing the enforcement of fines for legal persons under the influence of the new Code of Criminal Procedure, are located in the article.
Their content is identical to the old law. Critics and De Lege Ferenda Proposals. The first institution which we will discuss is the replacement of fine with imprisonment in the special situation when the convict fails, beyond his powers, to execute his fine penalty but he does not consent to provide unpaid community service work.
However, the convict lack of agreement to perform community service, it is not in all cases evidence of bad faith nor any flagrant opposition to serve their sentence. In order to demonstrate this, we will make a short exercise of imagination. Let us imagine that a director of a large company working in software design for securing the telephone conversations is found guilty, according to art.
But, because the divorce was finalized by the obligation to pay of a substantial amount of money his former wife, he is unable to pay the fine although he has no intention to evade his punishment. But the convicted person director does not consent to this and rejects the possibility of community service work on the grounds that, although the company's products have nothing to do with his crime and their quality and their functions have not been tainted by this, the company image will suffer because of competing companies that will use this situation in order to denigrate his products.
As a result, revenues will decrease and the company's capital will decrease by the sudden drop of shares listed on the stock exchange. Obviously, the final result is predictable: reducing the number of employees and, why not, a significant decrease in fees to be paid to the state. The question is, how do we apply the law in this case?
Obviously, the court will give effect to legal provisions, and the lack of consent the sentenced person shall be assimilated to bad faith, and therefore it will replace the fine with imprisonment.
But, is this solution fair? Personally, I think that we might insert into art. In addition, for the same reason, the text could be attacked with exception of unconstitutionality because it would create some legal rights in a preferential way, that will work only in favor of certain people and situations.
Conversely, if we return to the legal provisions of the new Criminal Code, the situation would be entirely different if the replacement of the obligation to pay the fine with the obligation to perform community service work, will be mandatory for the execution court.
Thus, the lack of consent could be seen as an evasion from execution of the sentence, that would attract the fine replacement with imprisonment Antoniu, Another legislative downside, in my personal vision, is the absence of any provisions that rewards the good faith of convicted persons to a criminal fine in paying their obligations. Such rewards could consist in pecuniary percentage reductions, proportional with time passage, if the convicted pays in a relatively short period after the sentence remains final.
Firstly, the presence of such facilities would be an impulse for convicts to extinguish their fines in a legally way and they would not search for ways to avoid the payment obligation by defeating the law.
Secondly, it can be a relief measure to criminal courts for some convicted persons to use these facilities rather than appealing without success the decisions of the court.
Executional Penal - Manea - 5 Teme
Drept Executional Penal
Referat-drept-executional-penal Nou +andrei