CONCURSUL ÎNTRE CAUZELE MODIFICATOARE DE PEDEAPSÃ ÎN CONCEPȚIA NOULUI COD PENAL

The judicial individualization of the sentence shall be carried out by a complex operation using all those individualization criteria set forth by law (general and special criteria); the need for taking into consideration all the grounds for sentence modification is included within these criteria, as well. Drawn by this need, the Romanian Criminal Code into force (since 1968) contains regulations regarding the manner in which the various grounds for sentence modification must be enforced, when they concur, regulations contained in the provisions of art. 80. Likewise, the new Romanian Criminal Code contains such regulations in art. 79. In this study, the authors have emphasized several systems of sentence determination in case of the concurrence between the grounds for sentence modification. Both the Criminal Code into force and the new Criminal Code adopted an objective criterion concerning the manner in which the various grounds for sentence modification must be enforced, being sensitive to multiple interpretations and contradictory solutions. The Romanian Criminal Code of 2004 – abrogated, before becoming effective, through the new Criminal Code – which forwarded a system based upon a subjective criterion, by granting the judge the freedom to assess the predominance (prevalence) of the grounds for sentence modification and to give them the due legal effect. From the point of view of the authors of the study, this system seems to be more adequate to settle the problems raised by the concurrence between the grounds for sentence modification.