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The postponing of the application of punishment is an institution recently introduced in the Criminal Code, creating problems of interpretation both in the doctrine and in the judicial practice, especially on two levels: the terminology used and the systematization of the substantive and procedural provisions in the legislation. These issues affect the institutions of the revocation and annulment of postponing the application of punishment. -
This study starts from a case settled in the preliminary chamber by a court that has proceeded to the exclusion from the probative material of some illegally obtained evidence, but also of those derived therefrom. In the analyzed situation in the context of the preliminary chamber it was found that there had been a confusion which led to obtaining data on a person’s financial transactions in an unlawful manner, namely by an ordinance that had not been validated by a judge of rights and freedoms, as the provisions of Article 138 (9) of the Criminal Procedure Code would have required.
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The study discusses a very delicate matter, marked by many controversies and tensions – namely the matter of ensuring the right to consult the file in the criminal prosecution phase. Within this study it is recognized the importance of exercising this right, as a component of the right to defence and as a guarantee of the right to a fair trial, but there are also provided relevant arguments as to how the access of the defence to the file can disrupt the proper conduct of the judicial activity. There are also analysed possible deeds with criminal significance if certain aspects revealed within this procedure are brought to the knowledge of the persons who do not have this right.
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The Decision of the Constitutional Court of Romania No 405/2016, referring to the plea of unconstitutionality of the provisions of Article 246 of the Criminal Code of 1969, of Article 297 (1) of the Criminal Code and of Article 132 of the Law No 78/2000 on preventing, discovering and sanctioning of corruption acts (hereinafter referred to as „Decision No 405”)1, is not a mere interpretative decision2 whereby, following the admission of a plea of unconstitutionality, it is established that a text of law is constitutional only provided that a certain wording has a certain meaning3. The recitals of the Decision No 405, to which there have been added, shortly after, those included in the Decision No 392/2017, referring to the plea of unconstitutionality of the provisions of Article 248 of the Criminal Code of 1969, of Article 297 (1) of the Criminal Code and of Article 132 of the Law No 78/2000 on preventing, discovering and sanctioning of corruption acts4 (hereinafter referred to as „Decision No 392”), have emphasized the fact that the current rules of incrimination of the deeds of abuse of office, once clarified the meaning of the phrase „defectively fulfils”, still establish a criminal liability that rather acts with priority, and not according to ultima ratio principle, and the constitutive elements of the offence do not meet the standards of drafting of such legal norms identified in the case law of the European Court of Human Rights (hereinafter referred to as „ECHR”), the United Nations Convention against Corruption5, as well as in various reports and positions assumed by the European Union bodies on this subject. For the assumption that these observations of the Constitutional Court would determine the legislator to reflect on the necessity to reconfigure the legal provisions in question, the Court has indicated certain points of reference that should be considered in order to ensure a regulation compatible with the international and European standards mentioned.
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This study aims at advancing solutions in view of correctly construing and interpreting certain provisions regulated under Law No 303/2004 on the status of judges and public prosecutors, in view of determining whether ex-judges and public prosecutors are entitled to benefit from the recalculation of their service pensions as a result of reaping the length of service obtained from practicing as lawyers, after retirement.
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Commercial competition is „a social patrimonial or non-patrimonial relationship, arising between natural or legal persons engaged in economic activities, based on the property right, equal opportunity for competitors, the freedom of action for enterprises, the freedom of choice for consumers and the obligation of the participants in these relationships to enable the exercise of the mentioned rights, in order to ensure a degree of rivalry between competitors which would bring benefits to the consumers, in terms of price, quality of the marketed goods and services”. Competition can be manifested in various forms, namely: perfect competition, also called pure; real perfect competition; imperfect competition; monopolistic competition. From a different perspective, namely that of the respect for fair customs and of the general principle of good faith, the law distinguishes between fair competition and unfair competition. Fair competition is „the situation of rivalry on the market, in which each enterprise tries to simultaneously obtain sales, profit and/or market share, offering the best practical combination of prices, quality and related services, by respecting the fair customs and the general principle of good faith” [Article 11 a) of the Law No 11/1991 on combating unfair competition]. „Unfair competition is... the commercial practices of the enterprises that contravene to the fair customs and to the general principle of good faith and which cause or may cause damages to any market participants” [Article 2 (1) of the Law No 11/1991]. Price is an essential indicator of the social reality and also a market instrument. In the doctrine the market price is defined as „a quantity of money that the buyer is willing to offer and can offer to the producer in return for the good he can offer”. It may have anti-competitive nature when it is derisory or contrary to fair customs.
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Starting from a decision made in the interest of the law by the High Court of Cassation and Justice, which stated that the terms regulated in art. 278 para. 3 and in art. 2781 para. 2 of the Criminal Procedure Code, for exercising the remedy of complaint against resolutions or ordinances of the prosecutor for not sending a case to justice, can only represent peremptory procedural terms, the article analyses the consequences on the fairness of the procedure of non-settlement by the hierarchically superior prosecutor, within the deadline provided by law, of the complaint against the solution of not sending a case to justice, reaching the conclusion that the legal text under review should be reconfigured, either by way of clarifying the nature of the term provided in art. 277 of the Criminal Procedure Code as a lapse term, or by way of linking the term referred to in art. 2781 of the Criminal Procedure Code to the time of communication of the solution of the hierarchically superior prosecutor, to avoid “deviations” from the fairness principle. -
In this study the author analyzes the provisions of the new normative act on regulating the activity of teleworking, namely of that form of organization of work „by which the employee, on a regular and voluntary basis, fulfils the specific attributions of his/her position, occupation or trade, elsewhere than the workplace organized by the employer, at least one day per month, using the information and communications technology”. Due attention is paid to the individual labour contract, having such an object, to its specific content, to the rights and obligations of the parties, to the contraventional liability in case of non-compliance with the legal norms. The study emphasizes the advantages and benefits of teleworking both for employers and for employees.
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The importance of distributing of the amounts in the insolvency procedure is unquestionable. Practically, only at this point in time, the purpose of the insolvency procedure from the point of view of creditors can be palpable and achievable by covering their claims. The legislator’s imperativeness in relation to the order of payment of the claims, respectively of the distribution of the amounts obtained from liquidation, found in the legal regulations, is based mainly on the economic, social, humanitarian and juridical aspects of each type of claim and on the impact that the insolvency procedure, respectively the recovery or non-recovery of claims, may have on each category of creditors. In the context of the entry into force of the Law No 85/2014 on the procedures for preventing insolvency and for insolvency, we propose to analyze the procedure for the distribution of amounts and the order of payment of claims, in a comparative overview as to the old regulation, by emphasizing the notable differences in this field. At the same time, we will perceive this study by structuring it depending on the order of distribution of the amounts within the two fundamental categories of claims, namely the guaranteed claims and secured claims
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This study addresses, from a practical perspective, the freezing order referred to in the Law No 302/2004 on international judicial cooperation in criminal matters and presents some of the steps to be taken by the criminal investigation bodies from tracing an asset for which there is an associated alert, in accordance with the Decision 2007/533/JHA of the Council of Europe of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II), and by the recognition and enforcement of the freezing order.
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According to our traditional legal model, the French one, the author tries to outline the theoretical bases and the legal elements defining a Romanian littoral law. Starting from the problems of the development and protection of the Black Sea Romanian littoral, the existing national legislation, the requirements of its harmonization with the EU law and the international regulations in the field, fully expanding, the analysis addresses and formulates adequate answers related to the (legal) notion of littoral, the delimitations of the neighbouring and connected rights, the springs (internal, European Union and international), with particular attention in this respect to the Convention on the Protection of the Black Sea against Pollution, the general and specific principles related to the field, the specific concepts and terms, its character of protective law, of interference and with an integrated approach. Particular attention is paid to identifying the necessary connections, interdependencies and delimitations between the littoral law, the maritime law and the law of the sea. In the author’s view, the littoral law is a new field of reflection and a specific regulatory matter under development, with a normative proteiform tissue, but with two clear and precise objectives: rendering the economic and social development compatible with the increased exigences of protection and preservation, under the sign of sustainable development.
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In this article the author’s opinion is in favour of the existence of the principle of the legality of misconducts, in the sense that in order for a certain illegal act to constitute such a misconduct it must be qualified as such by law, as the case may be, by statutory, contractual dispositions or unequivocally resulting from the legal orders of the hierarchical leaders. It can not be arbitrarily or subjectively determined by the employer, according to his discretionary will. From this point of view there is a complete resemblance to the criminal law which enshrines the principle of legality of incrimination, that is of the establishment and enumeration of the offences – the sole basis of the criminal liability.
