Observaţii critice asupra încadrării acţiunilor executorului judecătoresc conform art.328 CP al RM (excesul de putere sau depăşirea atribuţiilor de serviciu)

Abstract

The study aims to identify the deficiencies of qualification of the actions of the bailiff according to article 328 PC RM (excess of power or excess of official authority). In this respect, there are analyzed a number of court decisions issued on criminal cases filed against bailiffs under art. 328 PC RM. It is noted that in most cases, on such criminal files the courts issue acquittal decisions. It is concluded that in the most frequent cases criminal cases are unfounded filed in court regarding the bailiffs according to art. 328 PC RM. It is shown that art. 328 PC RM is inapplicable if the authorized person with qualification of offences does not indicate in the issued procedural act the norm of the normative act setting the rights and/or attributions of the bailiff whose limits have been exceeded. It shows that it is wrong the qualification according to art. 328 PC RM if the harmful consequence is established in an abstract manner, i.e. generic, but not in concrete. Also, it has been pointed that criminal liability under art. 328 PC RM cannot be started if the actions of the bailiff and his acts are not contested (when the party has the possibility to contest them) or are maintained (if they are challenged by the parties of the enforcement procedure)

Keywords

• executor judecătoresc
• răspundere penală