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În peisajul jurisprudențial conturat după intrarea în vigoare a actualului Cod civil1, ne reține atenția o hotărâre2 pronunțată relativ recent de Secția a II-a civilă a Înaltei Curți de Casație și de Justiție a României în materia răspunderii civile delictuale a comitentului pentru fapta prepusului său, în funcțiile încredințate, care prin argumentele prezentate oferă o nouă perspectivă privind problematica atât de controversată din ultimele decenii privind natura juridică și fundamentul acestei ipoteze de răspundere. Deși datele speței se referă la o faptă ilicită săvârșită în anul 2005, fiind în discuție modul de interpretare a dispozițiilor art. 1000 alin. 3 din Codul civil din 1864, prin hotărârea pronunțată, Înalta Curte de Casație și de Justiție își însușește noua orientare propusă în doctrina noastră privind necesitatea recunoașterii caracterului direct, autonom și independent al răspunderii comitentului, în raport cu răspunderea prepusului său, precum și fundamentarea obiectivă a acestei răspunderi pe ideea de garanție, ideea de risc și ideea de echitate. -
This study deals with the extremely complex problems of the legal relation of criminal enforcement law, often confused with the legal relation of substantive criminal law or even with the relation of criminal processual law. That is precisely why the author insists on the specific elements of the analyzed relation, thus creating clear delimitations between the three institutions that have separate existence, and also areas of very strong interference.
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Due to the prevailing technical nature and to the insufficient discussion on this subject in the doctrine and the specialised literature, the search of computers gives rise to controversies. The author presents, step by step, every phase of this probative procedure, emphasizing the criminal processual particularities in the light of the regulation in force (Article 168 of the new Criminal Procedure Code) and of the previous one [Article 56 (4) of the Law No 161/2003 corroborated with Article 100 and following of the Criminal Procedure Code of 1968], as well as the technical – computer particularities.
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The study deals with the problem of the legal nature of the concurrence established between the offence of assault or other violences and the offence of ill-treatment of minor. The identity in material element between the two offences may be complete, in which case they are in formal concurrence. There is a complete identity in material element when both offences involve a duration of consumption in time. The identity in material element can not be complete, in which case the two offences are found in real concurrence. There is an incomplete identity in material element when the offence of ill-treatment of minor involves a duration of consumption in time, while the offence of assault or other violences lacks this feature.
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The author of this study points out the urgent need of reformation of the legal higher education, in the context of economic globalisation and of the phenomenon of mondialisation of law. This involves, in the opinion of the author, its adjustment both to the new exigences of the professional market and to the internal changes of the system of legal science and theory, in the effort to acknowledge and express the evolution of a globalised world. Within this study there are analyzed, among others, the current trends of the legal higher education from the perspective of the common law model and of the continental legal model of Romano-Germanic origin. Likewise, there are presented the important models of training of jurists in the West, as well as the situation of the legal higher education in Romania.
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The new normative framework in the matter of insolvency regulated by the Law No 85/2014 on the procedures for preventing insolvency and for insolvency brings some significant mutations in this matter, regulating the mentioned legal institution, of a great importance to the economic environment, by more clear, concise and predictable rules. In the ambience of the new regulation in the matter of insolvency, as well as of some special regulations in this matter, this study intends to make an analysis of a few general aspects regulated by the new normative framework in the matter of insolvency and by the special regulations in the field, pointing out, through a comparative analysis to the provisions of the former law, the elements of novelty brought in the matter of insolvency.
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In this study the authors intend to point out the significant novelties brought in the matter by the Law No 85/2014 on the procedures for preventing insolvency and for insolvency, as compared to the previous regulation (the Law No 85/2006). This being the case, the authors examine the mentioned novelties: (I) as concerns the judgment within the insolvency procedure; (II) with reference to the effects of the insolvency procedure; (III) in the field of reorganization and bankruptcy. Finally, the authors come to the conclusion that the Law No 85/2014 succeeds to cover a series of legislative gaps, to settle some controversial issues in the legal practice and, finally, to provide some equitable solutions where the provisions of the old law (No 85/2006) were rightfully criticized.
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This study tends to be a partly critical analysis of the provisions of Article 117 of the Civil Procedure Code, and also an approach to bring to the attention of „doctrinarians”, „judges” and, especially, of the „legislator” the existence of a legislative gap in respect of the exclusive territorial jurisdiction of the courts in the situation that „disputes referring to real rights concern two or more estates located in the territorial districts of different courts”.
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As compared to the former civil enactment which established a special immovable property privilege of architects, entrepreneurs, stonemen and other workers employed to build, rebuild or repair edifices, canals or other works, the new Romanian Civil Code provides a legal real estate mortgage for architects and entrepreneurs who have agreed with the owner to build, rebuild or repair a building. Beyond a slight restriction of the scope of application, the Romanian legislator has opted for a simplification of the conditions of recognition of the legal guarantee, which is praiseworthy and useful for the practice. However, the lapidary drafting of the normative texts does not provide answers to all the questions that the practitioners may ask themselves. The author has attempted in this paper to provide an image as accurate as possible of these questions, with the mention that the most important is the need for a fast answer (from the legislator or from the doctrine) to the question whether this legal mortgage guarantees only the payment of some amounts of money or also of any other type of claim which could represent the price of works contract. The issue essentially and immediately affects the scope of application of the guarantee and, consequently, a solution is required in order to ensure the predictability necessary for the economic circuit.
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The regulation of the movable property mortgage in the new Romanian Civil Code (Articles 2387–2419) was a necessity and it represented an important element of reform in matters of guarantees. The importance of the movable property increases every day, so that the Romanian legislator had to adjust to the permanently changing economic and social requirements. In the opinion of the author and, partly, in disagreement with other authors, the movable property mortgage agreement has the legal nature of a constitutive, unilateral, free, solemn and public agreement, being ancillary to the claim which it guarantees. This paper examines the solemn character, the constitutive character and the free character of the movable property mortgage, because it is only about these characters that the author has some key observations.
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Unlike the old Civil Code, in the system of the new Civil Code (NCC) the assignment of claim enjoys a superior regulation, including as regards the problems of the publicity formalities stricto sensu. In this regard, the publicity formalities towards third parties, separate from those necessary for informing the assigned debtor, provide the possibility of taking knowledge about the assignment by any person concerned (successive assignees, mortgage creditors, pursuing creditors etc.). In principle, the assignment becomes opposable against third parties only from the moment of registration in the Electronic Archive for Security Interests in Movable Property [Article 1583 (2) of NCC]. This is the general rule of common law, from which the law also provides exceptions when considering the nature or the source of the assigned claim. The main exceptions refer to the assignments of real estate incomes and to the seizure of a real estate mortgage claim, which are noted in the land register [Article 902 (2) points 6 and 15 of NCC]. From the date of registration of the assignment in the public register, the assignee’s rights, that is the claim right and all its ancillary rights, including movable property and real estate mortgages, become opposable to third parties. The sanction of non-registration is the non-opposability of the assignment against the third parties concerned.
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Procedura succesorală, procedură prin care se transpun în practică dispozițiile normative ce vizează succesiunile și transmisiunea acestora, poate fi după natura sa o procedură litigioasă sau una nelitigioasă, aceasta ținând strict de competența acordată instanțelor de judecată sau notarului public.
