LEGĂTURA CAUZALĂ DINTRE FAPTĂ ȘI URMAREA PREJUDICIABILĂ ÎN CONTEXTUL INFRACȚIUNILOR PREVĂZUTE LA ART. 238 CP RM

Abstract

One of the basic constitutive elements of a criminal offense is the objective side, which encompasses all the conditions required by the incriminating norm. In particular, the structure of the objective side presents constructive differences depending on the type of offense (material or formal). Referring to the offense provided for in Article 238 of the Criminal Code of the Republic of Moldova, its objective side has the following structure: the harmful act; the harmful consequence; the causal connection between the act and the harmful consequence; the means of committing the offense. This structure is due to the transition from the type of formal offense to the material one, carried out by Law No. 277/2008 of the Republic of Moldova. Implicitly, we deduce that the amount of the harmful consequence of the offense provided for in paragraph (1) of Article 238 of the Criminal Code of the Republic of Moldova is between the following limits: at least 25,000 lei (the minimum limit) and at most 40 average monthly salaries in the economy forecast, established by government decision in force at the time of the offense (the maximum limit), while in paragraph (2) the amount of the harmful consequence exceeds the maximum limit provided for in paragraph (1) (40 average monthly salaries). In most cases, falsification of information is detected when the credit applicant fails to repay the credit installments on time. However, this fact does not imply that Article 238 of the Criminal Code of the Republic of Moldova should not be applied from the moment the credit or loan amount is actually obtained. We are of the opinion that the harmful consequence should be considered to be caused at the time of granting the credit or loan, not at the time of partial or non-repayment of the credit/loan amount granted.