Noţiunea de „operaţiune fictivă” din perspectiva art. 9 alin. (1) lit. c) din Legea nr. 241/2005. Scurt examen jurisprudenţial şi un nou criteriu de delimitare a faptelor cu relevanţă penală
The notion of fictitious operation from the perspective of Article 9 paragraph (1) letter c) of Law no. 241/2005. Brief case-law examination and a new criterion in the delimitation of criminal-related facts

Summary/Abstract: Tax evasion is a complex area not only in terms of concrete ways of committing the actus reus, but also from the perspective of interpreting and applying the law. A brief case-law examination proves that the interpretation given to the notion of fictitious operation is not unitary among national courts and neither among law theorists, which is why this material represents an attempt to identify some useful criteria in “selecting” those situations in which the intervention of criminal law is justified. If, in foreign doctrine, a distinction was made between material and legal fictiveness, in our opinion a more useful distinction would be between the fictitiousness of the economic component of the operation and the fictitious character of adjacent elements, when compared to the operation. Accordingly, the present material is an attempt to bring this distinction into question and to demonstrate its usefulness in the interpretation andapplication of Article 9 paragraph (1) letter c) of Law no. 241/2005.

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