4. Unele probleme ivite în practica judiciară privind luarea măsurilor asigurătorii în faza de judecată a procesului penal
4. Certain problems arising from judicial practice in relation to precautionary measures in the criminal trial proceedings

Summary/Abstract: From the lawmaker’s perspective, reflected in the provisions of art. 112 of the Criminal Code, the forfeiture of the assets acquired as a result of having committed the offence provided in the criminal law is mandatory if the respective assets are not given back to the injured party and insofar as they do not serve as a compensation, of the assets and money obtained from the operation of the assets subject to forfeiture, as well as of the assets produced by them. Or, the judge called to give a verdict in a criminal case shall ensure its effectiveness as well, since the exercise of the judicial function implies the cumulative fulfilment of the iurisdictio and imperium conditions: or, it is only the permanent dialectic game between science and will, between power and constraint, briefly between iurisdictio et imperium, based upon which the procedural law may provide the victory of the substantive law rules. In order to achieve this purpose, it is required the remark that the examination, in the course of the proceedings, (a phase which also includes the stage of the appeal, according to the architectonics of the Romanian Code of criminal procedure) of the need for taking the measure of distraint upon property for the purposes of special confiscation is demonstrated against the provisions of art. 249 of the Code of criminal procedure in relation to art. 107 para. (3) of the Criminal Code and art. 112 para. (1) letter e) of the Criminal Code whenever the criminal prosecution body does not order such measures in the stage of the criminal prosecution.

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