-
Unpaid community work has received multiple valences in the Romanian criminal law system, representing either an obligation in the content of the probation measures or a way of executing the penalty of the fine or an obligation that accompanies the abandonment of the criminal prosecution. The complexity of the institution, together with its novelty, has generated a series of difficulties including in respect of the performance of the unpaid community work, this article emphasizing some of these difficulties and proposing solutions for their removal. -
The relation between the civil servant and the public authority or institution in which he occupies the public office arises and is exercised on the basis of the unilateral administrative act of appointment, issued according to the legal provisions, and not by a contractual act. That is why the public function and the status of the civil servant have been regulated in the public law, separately from the labour relations specific to the private law, at the same time also determining the establishment of a specific sanctioning system, which takes into account the distinctive features of the way in which the public office is exercised. In this study there are analysed, from a dual perspective, theoretical and practical, the conditions of each form of the legal liability governed by the administrative law. At the same time, we also consider the cumulation of the disciplinary liability with other forms of legal liability of the civil servant for the damaging consequences of his deeds. A few aspects of novelty brought by the codification of the legislation on the liability of the civil servants in the Draft Administrative Code complete our research.
-
The content of the medical legal relation includes all rights and obligations of the provider and of the beneficiary of the medical service. Among these, only the rights of the patient benefit by an explicit and ample special regulation and by a growing doctrinal interest. However, this does not mean the lack of specific rights in favour of the doctor, but only the necessity to identify the existence and the determination of their content by analyzing the nature and/or the implicit effects of the legal provisions and of the jurisprudential solutions. Thus, the patient’s acceptance by the doctor, based on Article 663 (1) of the Law No 95/2006, is the equivalent of the informed consent of the patient, expressed pursuant to Articles 660–662 of the Law No 95/2006 and Articles 13–20 of the Law No 46/2003; the interruption of the relation between the doctor and the patient, pursuant to Article 664 (1) c) (ii) of the Law No 95/2006, as a result of a hostile and/or irreverent attitude towards the doctor, would be impossible in the absence of an obligation of gratitude of the patient, correlative to a right to gratitude of the doctor; and the jurisprudential consecration of the liability of the sanitary unit for the damage suffered by the doctor due to a nosocomial infection is due precisely to the existence of a right to security of the doctor.
-
Reținerea unei împrejurări ca circumstanță atenuantă judiciară: a) este posibilă doar dacă ea reduce într-o asemenea măsură gravitatea infracțiunii sau descrie atât de favorabil persoana infractorului, încât numai o diminuare a limitelor speciale este aptă să creeze un echilibru între rolurile aflictiv și educativ atașate pedepsei și să realizeze prevenția specială inerentă acesteia; b) atrage îndeplinirea de către instanță a obligațiilor de a indica împrejurarea care constituie circumstanță atenuantă, de a face referire la mijloacele de probă din care ea rezultă și de a o încadra în ipotezele prevăzute de lege.
-
In this study, the author starts by finding that there is a divergent case law regarding the admission of the application for declaration of enforceability filed by the court executor under Article 666 of the Civil Procedure Code in the event that the enforcement title is represented by a final judgment whereby the debtor is obliged to pay a sum of money to the creditor and the proof thereof is made by a registry certificate (ad similis, an authenticated copy of the minutes drawn up and signed by the members of the court panel). The author finds that the limited doctrine that analyzed the casuistry described above reaches also diametrically opposite conclusions. In this context, making his own analysis, the author comes to the conclusion that in the above-mentioned hypothesis it is correct the solution of the courts which have admitted the applications for declaration of enforcement, based mainly on arguments related to the probative force of the registry certificate, the existence of the court judgment from the date of its pronouncement in the public hearing as the last stage of the trial (i.e., the first phase of the civil trial), since it has full legal effects, as well as on the desideratum of celerity, which governs the second stage of the civil trial, recte the enforcement. Noting that the existence of a divergent case law by which identical juridical situations are solved is likely to lead to the weakening of trust in the act of justice, the author urges for the most urgent use by the actors entitled ope legis of the means for ensuring a unitary judicial practice stated by the provisions of the Civil Procedure Code and of the Internal Rules of the courts of 2015.
-
At the same time with the change of the jurisdiction of the courts vested with the solving of the applications for relocation in the new Civil Procedure Code1, the incidence of a particular situation was ignored: the subsistence of the reasons for relocation also at level of the courts of appeal competent to solve the relocation applications, when the relocation is requested from a court of first instance or a tribunal located in the same locality as the court of appeal, and the legitimate suspicion has sources well-anchored at local level. The High Court of Cassation and Justice was not late in „completing” this omission, by admitting an application for relocation of a relocation process, from the court of appeal in the locality where there were suspicions of lack of impartiality to another court of appeal, contributing, a fortiori, indirectly to the relocation of the substantive litigation to another court, away from the local sphere which did not provide sufficient guarantees of independence of justice.
-
If any person can admire his own image without any restriction, then anyone is free to fix his/her image by reproduction in different forms (self-portrait, autosculpture, etc.) and finally the image can be exploited by reproduction (here by the question of whom belongs the product of the image, how it can be exploited, who owns the good in the image, how to exploit its image). The central point of the work is the exploitation of the image of persons and goods. We will try to find out what is the legal basis of image protection depending on its subject. In this way, a leap forward will be made in the legal regulation of the right to image followed by a doctrinal and jurisprudential approach to the law that is invoked to protect the image of the goods. We will also try to capture the need for a distinct right to protect the image of goods by correlating it with the mechanism of regulating the right to image of the individual.
-
Perioada dintre rămânerea definitivă a hotărârii de condamnare și reluarea procesului penal, ca urmare a admiterii redeschiderii procesului penal în cazul judecării în lipsă a persoanei condamnate, este luată în considerare pentru stabilirea împlinirii termenului de prescripției. (Judecătoria Târgu Jiu, Sentința penală nr. 2141/2017, definitivă prin neapelare – nepublicată – cu notă critică)
-
Soluția legislativă cuprinsă în art. 345 alin. (1) din Codul de procedură penală, care nu permite judecătorului de cameră preliminară, în soluționarea cererilor și excepțiilor formulate ori excepțiilor ridicate din oficiu, să administreze alte mijloace de probă în afara „oricăror înscrisuri noi prezentate”, este neconstituțională. (Curtea Constituțională a României, Decizia nr. 802/2017 – cu notă aprobativă)
-
This study emphasizes that, from a substantial point of view, the criteria required to be fulfilled for cataloguing a deed as pertaining to the criminal domain are: the qualification of the deed in the domestic law, the nature of the deed and the purpose and the severity of the sanction. Formally, an official report of finding and sanctioning the contravention which represents at the same time also a criminal charge in the conventional sense must cumulatively include the description of the deed and the presentation of the legal classification. The effect of classifying the report of finding and sanctioning the contravention in the category of the criminal charge in a conventional sense is given by the fact that to the procedure for finding and sanctioning the contravention there are attached its own guarantees of a fair trial. The presumption of lawfulness of the report is compatible with the presumption of innocence only if it respects certain limits, taking into account the gravity of the stake and protecting the rights of the defence. The limits of the presumption of lawfulness of the official report, in the context of protecting the rights of the defence, are: the imperative that the deed be perceived directly, through its own senses, by the fact-finding agent and the exigence not to impose on the person concerned an impossible task, as regards the administration of the proof to the contrary.
-
The legislative unification was the main national project of the Unified Romania. The necessity of achieving this project was emphasized starting right with the days immediately following the declarations of unification of the representatives of the three historical provinces (Basarabia, Bucovina and Transylvania) with the Old Kingdom, and the effort for its achievement continued, in a sinuous dynamics, until after the fatidic year 1940. With very few exceptions, the jurists across the country have declared to be in favour of the legislative unification, regardless of the fact that their opinion has been expressed from the chair, in university studies and classes, in the activity of the unification commissions or of the Legislative Council or in the pretorium of justice.
-
Neutral power can manifest itself in modern liberal democracies also in the form of autonomous authorities. Their neutrality is based on two kinds of reasons. The first category involves the positioning of the neutral authorities outside the separation of powers in the state, their reactive (not active) political character and their role of balancing the separate powers of the state or of balancing the relations between the state and civil society. They are in the Romanian law authorities with constitutional status. The second category of authorities that call/consider themselves neutral founds its position on the neutrality of the experts in their structure. They have in the Romanian Constitution the status of some atypical, autonomous administrative authorities. Modern states are based on political freedom, i.e. on the liberation of man from objective laws. The expression of this freedom substantiates all the institutional mechanisms of modern constitutionalism. In exchange, the autonomous administrative authorities are set up to release the regulation of certain social mechanisms of political influence. They are not based on modern political freedom. Formed of experts who know the „objective” laws of social development and apply them „scientifically”, these authorities are „objective”. It is thus created a dichotomy: the people or the expert? The increasingly dense contemporary option for the expert can lead to significant risks for the human rights and for the democratic system.
-
There are many questions concerning the context in which we witness the entry into force (on 25th May 2016) of the General Data Protection Regulation (GDPR) and its application (starting 25th May 2018). The answers can be numerous: political, sociological, journalistic, etc. However, we choose to analyse from the legal point of view. The GDPR was adopted taking into account the weaknesses that the Directive 95/46/EC has shown, specific weaknesses, in fact, of a EU legal act of this type, compared to the type of regulation. The Directive in question has failed to prevent the fragmentation of the way data protection has been ensured in all EU Member States. Legal uncertainty or public perceptions according to which there are significant risks to the protection of individuals, especially online, have been widespread. It is further added that the differences in the levels of protection existing in the 28 EU Member States, differences due to the transposition and application of the Directive, have sometimes led to a slowdown in the application of the principle of the freedom of movement of personal data within the EU, which may constitute real obstacles to economic activity at this level, distorting competition and preventing authorities from fulfilling their responsibilities under EU law.
-
The study analyzes Article 961 of the current Civil Code on the removal of the effects of unworthiness, introduced as a novelty, to the previous regulation. There are analyzed the conditions in which it may be operated a removal of the effects of successoral unworthiness by the express forgiveness. Then, it is analyzed whether or not it may operate the removal of the effects of successoral unworthiness by the tacit forgiveness of the unworthy, with arguments in a negative sense. Within the study it is examined the future of the legacy left by the testator by a testament drawn up after the act of successoral unworthiness has ben committed, whether it has the meaning of forgiveness of the unworthy and of removal of the effects of unworthiness or whether, without having these meanings, it is actually recognized the right of the legatee to collect the legacy left by the testator by a testament drawn up after the act of successoral unworthiness has ben committed.
-
Following a critical study of the provisions of the Government Ordinance No 121/1998 on the material liability of the military, the author points out that this normative act is contrary to Article 73 (3) j), Article 118 (2), (3) of the Constitution. The juridical reasoning is based on the standard imposed by the case law of the Constitutional Court in respect of the status of the public officers and of the military staff, the author emphasising the necessity to adopt an organic law/several organic laws to regulate the material liability of the military staff and of the public officers within the Ministry of National Defence, Ministry of Internal Affairs, the Romanian Intelligence Service, the Protection and Guard Service, the Foreign Intelligence Service, the Special Telecommunications Service and the Ministry of Justice.
-
For the appeal, which generates, in principle, a new judgment on the merits, given also the finality of exercising the appeal – the nullity of the judgment challenged – it is required another approach to the cases of nullity different than the traditional one in the matter of procedural acts. For the situation of referral of the case for retrial, it is required to argue that it is necessary to specify, in the judgment of referral, where appropriate, the part which is cancelled from the procedure followed by the court of first instance, respectively of the procedural act from which the retrial begins.
-
This paper appears as a response to the debate created by the new proposals to amend the criminal codes. I believe that a legal debate should start from the fundamental principles of law and be conducted academically, presenting legal arguments and also knowing the comparative law issues related to the topic debated. This is why this paper offers a historical, current and comparative perspective in terms of recognizing the right to silence to the person being heard as a witness in the criminal trial.
-
The extension of the preventive arrest is one of the instruments available to the judicial bodies in order to remove some threats to public order, undermining at the same time a fundamental right of the defendant, the right to freedom. The procedure of extension of the preventive arrest must respect the right to a fair trial, as regulated in the international conventions and the internal provisions. This article analyzes the possibility of breaching the principles of equality of arms and of equality of treatment in the procedure of judging the contestation against the decision to extend the preventive arrest measure.
-
Under the old civil law, the registration of a property right in a land registry was a follow-up phase to the fulfilment of the obligation to give, that is, to transfer the property. In that sense, the registration thus carried out was only intended to ensure to third parties the publicity of the legal transaction transferring the right of property, making the new owner known, similarly to other law systems in Europe. Currently, under the Civil Code in force, things have remained relatively under the same conditions. The Civil Code regulated the constitutive system of registration rights in the land registry, but the implementing law postponed those provisions until the completion of the cadastral measurements. However, we consider an apriorical analysis of the constitutive system of rights to be helpful in anticipating and clarifying the legal issues that may arise in the future, but also in determining the legal nature of the interim period between the conclusion of the contract and the time of registration in the land registry, that is to say, until the time of complete fulfilment of the obligation to give. Last but not least, we will analyze aspects of the eventual liability that could be committed because of the faulty fulfilment of the obligation to apply for registration in the land registry, therewith identifying the persons who can apply for the registration and the persons who have to apply for it.
-
Acțiunea tatălui de a-l extrage pe fiul său minor dintr-un mediu impropriu dezvoltării armonioase fizice și psihice de la domiciliul stabilit provizoriu de instanța de judecată la mamă nu constituie infracțiunea de lipsire de libertate în mod ilegal, prevăzută de art. 205 alin. (1), (2) și (3) lit. b) C.pen., și nici infracțiunea de nerespectare a măsurilor privind încredințarea minorului, prevăzută de art. 379 C.pen. (cu notă aprobativă).
-
This study discusses a novel issue in the field of theory and case law of the criminal law. It deals with the necessity to apply the complementary punishment of prohibiting the exercise of the right to pursue the activity of babysitter in the case of the persons who, acting in this capacity, have committed the offence of theft of goods located in the building in which they had access. The author claims that such necessity exists because, in this way, those persons will no longer be able to commit offences acting in the capacity they had throughout the incidence thereof.
-
The attenuating circumstance of the challenge is provided by the Criminal Code in force in Article 75 (1) a). By the challenging act of illegitimate nature it is affected the physical integrity or dignity of the person, so that, although punished by the criminal law, the offender’s deed is merely a reaction, a disproportionate response to an illegitimate action or inaction. The challenge can only be retained if the conditions relating to the offence committed under the auspices of a powerful disorder or emotion, respectively the conditions relating to the challenging act are cumulatively met. Without claiming to exhaust the subject, the paper aims to emphasize also some controversies regarding: the proportionality and the time interval between the challenging act and the offence; the distinction between the challenge and some justificative causes or causes of non-imputability; the possibility of retaining the challenge concurrently with the premeditation.
-
What we intended on this occasion is to discuss the rules that are used to determine in the concrete situations, related to the case, the legal inheritors of de cuius and the meanings of these rules. The topic seems interesting to us, because on the way in which it is dealt with, on the answers given to some questions, which are raised or can be raised in this regard, depend the adequate theoretical perspective and the rigor of determining of the inheritors in a given case, not only of the lawful ones, but also of the testamentary successors, each category of heirs being able, either alone or with the other, to access the inheritance.
-
This paper starts from the finding that there is currently no clear criterion for distinguishing between the offences against bodily integrity or health and attempted murder and, as a result, the practice in this matter is contradictory. As a solution, it proposes to adopt the criterion of causal aptitude of the action, while emphasizing, at the same time, that the adoption of this criterion requires that the psychological theory of guilt be abandoned.
