CÂTEVA ASPECTE PRIVIND NOȚIUNEA DE ÎNCADRARE JURIDICĂ ȘI NECESITATEA APLICĂRII SAU NU A ACESTEI INSTITUȚII ATUNCI CÂND SE ANALIZEAZĂ LEGEA PENALĂ MAI FAVORABILĂ ÎN CONFORMITATE CU ARTICOLUL 5 DIN CODUL PENAL

The present study aims to analyze a problem that recently appeared in the criminal procedural practice considering the Decision No 250/2019 of the Constitutional Court by which the provisions of the first sentence of Article 377 (4) and Article 386 (1) of the Criminal Procedure Code were assessed as constitutional only insofar as the court of law rules on the change of the legal classification given to the deed by the act of notification by a judgment that does not settle the merits of the case.
By presenting a concrete case study, the opinions expressed in the doctrine and by practitioners, as well as the analysis of the grounds of the decision we will conclude on the applicability of the aforementioned decision at the time of analyzing the more favourable criminal law, whether the procedural institution of changing of the legal classification or that of the legal qualification is incidental, and whether it is necessary to rule on the more favourable criminal law by a separate conclusion.