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Through this study, the author starts from the monistic regulation of the current Civil Code, raising for discussion the possibility of adopting a new Commercial Code, which should include all the essential regulations of the special laws in force, with regard to the legal relations in which those who pursue professional activities participate, regulations on the special status of the participants in the legal relations intended for professional activities, the trading companies and the trading professionals who are natural persons, regulations on the contracts and guarantees specific to professional activities (leasing contract, franchise contract, banking contracts and guarantees), regulations on credit titles, the regulation of the insolvency procedure, updated for all areas of professional activity.
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The study discusses in a precise manner and with a careful observation of the perception of the judicial practice on this issue how it is possible or how one should proceed to the verification of the legality of the probative procedures in the preliminary chamber phase. At the same time, with pertinent doctrinal arguments, the author of the study proposes an extension of the limits of verification of the legality of the probative procedures and with regard to the validity of the authorization issued by a judge of rights and liberties during the criminal investigation phase.
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Having regard to the number of judgments delivered in the field of property and of expropriation against Romania by the European Court of Human Rights, it is necessary to present the relevant principles which this court has set out, principles which the national judge is bound to observe and to apply to concrete cases, in accordance with the provisions of Article 20 of the Constitution. The principles not correlated with actual examples would be devoid of content, therefore the presentation of the most important examples on the basis of the state of fact emphasizes the correct reasoning of the Court, the more so as it has a limited competence to verify the compliance with the domestic law1, attribution which is the responsibility of the national judge.
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The article proposes solutions in the case of concurrence between the reopening of the criminal trial in case of judgment in the absence of convicted person and the resumption of the time limit for appeal, and after an analysis of the two procedures and a comparative analysis of the ordinary and extraordinary means of appeal, it concludes that the reopening of the criminal trial is an extraordinary means of appeal.
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An employment contract is decisively characterized by the relationship of subordination between the parties, which distinguishes it from a civil contract. The reclassification of a civil contract as having the legal nature of an employment contract can be done by the labour law court, by the fiscal control body and, more recently, even by the labour inspector. The paper analyzes the criteria under which such reclassification can intervene, what are its traps and its effects. It is finalized with a series of proposals aimed at simplifying the reclassification operation, as well as providing legal certainty.
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The most controversial aspect in the criminal judicial practice, in the situation of invoking the plea of relative nullity of a criminal processual act, is to prove the existence of a processual injury and, related thereto, to prove the sufficient seriousness of the injury caused to the party or to the main processual subject which justifies the cancellation of the act. Most of the times, the party or the subject that invokes the nullity is put in the extremely difficult position to persuade the judicial body that processual injury is sufficiently serious to justify the drastic sanction of nullity. That is why we have considered that it is required a thorough assessment with regard to the standard of probation of injury, of proving the sufficient seriousness of the injury suffered in order to bring about the sanction of nullity. The conclusion we have reached is that the processual injury suffered is sufficient to bring about the sanction of nullity when the violation of the processual rights or guarantees of the parties or of the subjects puts them in the position to no longer be able to defend themselves with the same chance they would have defended themselves if their processual rights had not been infringed.
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Although at first sight the procedure of cancellation of documents, regulated by Article 5491 of the Criminal Procedure Code, seems to be an institution that should not create essential problems, we can see at a closer analysis that certain provisions of the criminal processual rule are at least questionable. Moreover, the aspects related to the unconstitutionality of the provisions regarding the active legal capacity of referral to the judge in this respect have been subject to the analysis of the Constitutional Court of Romania. The problems of interpretation may also persist on the object, on the procedure itself, on the competence to settle the referral or on the limits of investiture of the preliminary chamber judge. Under these circumstances, in this paper we intend to express a point of view in relation to these aspects. With regard to the object of the referral and the limits of investiture of the preliminary chamber judge, we will analyse whether the cancellation of documents, in this procedure, concerns only the main documents or the subsequent documents as well, and whether the act sought to be cancelled is regarded in the sense of instrumentum or negotiumiuris. Another problem that may arise within the settlement of the referral with regard to the cancellation of documents is represented by the settlement competence. In theory, this will pertain to the preliminary chamber judge of the court which would have the competence to examine the case on the merits, certainly, according to the pre-established criteria of the criminal processual rules. Under these circumstances, if there aren’t any discussions in relation to material competence, this being given by the juridical classification of the deed for which the dismissal of action, respectively by the abandonment of the criminal prosecution, has been ordered, with regard to personal competence, we will clarify some aspects. At the same time we will try to answer an apparently simple question, namely: is it legally possible to administer evidence during the settlement of such a referral?
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This study presents a possible legislative incoherence, generated by the current form of Article 130 (3) of the Civil Procedure Code, concerning the invocation of the lack of competence of private order of the courts, which may lead to the situation of an incompetent court hearing a request, an abnormal situation in the conduct of a civil legal procedure.
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Throughout more than 150 years of constitutional history in Romania, the Romanian constitutions have provided the modality of engaging the liability of the ministers for their activity. This article aims to make a brief analysis of how it was regulated the liability of ministers in the various constitutions which Romania has adopted over time and of the relation between the political and legal liability of ministers in the Romanian law, starting from the practical realities of recent years. Although, traditionally, in the constitutional law it is made a clear distinction between the political and legal liability, in practice, the boundary between the two types of liability is questionable, especially from the perspective of the legal classification of these types of liability. If the political liability is considered to be that liability of ministers before the Parliament for their political activity which may result in the loss of confidence and the removal from the office of minister, the legal liability has in view how a minister should bear the consequences of the law, by his prosecution and indictment.
