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The present study analyzes a series of civil procedure aspects – both in the light of the current Code of Civil Procedure, still in force, and in the light of the new Code of Civil Procedure (Law no. 134/2010, but still unenforced) – that are debatable, concluding that, for instance: z Sending a cause for retrial can only take place within the limited situations set forth in the Code of Civil Procedure (when the merits has not been investigated or trial has been made in the absence of the party illegally summoned). z Absence of the notice of adjournment of the pronouncement or not signing it can not be assimilated to non-investigation of the merits; z Absence or not signing the minutes represents a non-investigation of the merits; z Suspension of the court order execution, appealed by means of extraordinary appeal procedures shall be judged in the same composition by which the appeal is settled; z In order to establish the exercise of parental authority it is compulsory to enclose the social investigation report to the court case. -
The present article focuses on the legal liability, having as main character the company administrator and presenting an overview of the the sanction specific to the administrator non-patrimonial liability:the administrator revoking. Concomitantly, the problems occurring in the legal practice are also taken into consideration: decision-making competence and the juridical control of the revoking decision. Due to the intuitu personae character of the mandate, the revoking of the company administrator, even when abusive, is final. So, in practice it was stated that the mandate, even arbitrary withdraw, can not be held in justice against the principle‘s will, the only right the proxy has is the claim damages, but not reintegration, as the trust representing the graunds for the mandate can not be imposed. Also, an administrator can not reguest reintegration but, if abuses were committed, by withdrawing the mandate, the administrator has damage claim. In the situation in which the administrators have been appointed by the article of incorporation, their dismissal presupposes its amendament. That is why, the court can not order the administrator‘revoking, as it would mean the modification of the articles of incorporation. In the condition in which the administrator acquired this quality by the company‘s articles of incorporation, his dismissal does not only have the character of an revokingl but it also represents an amendament of the articles of incorporation. The article also includes a detailed analysis of the opinions expressed in the speciality literature and the solutions in the legal practice for the administrator revoking problem.
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The social reaction against low severity felonies ask for finding solutions alternative to criminal penalties. The legislator of the new Criminal Code, waiving the institution of absence of the felony’s social danger and replacement of criminal liability, has adopted, for the argument of criminal prosecution, on grounds of the principle of opportunity of exercising criminal action, the institution of waiver of criminal prosecution, and, in terms of substantive criminal law, waiver by the court law of the penalty enforcement. Both institutions, new as concepts in the Romanian criminal legislation, are practically instruments of non-penalization of the actual felony and replacement of criminal liability with an administrative liability, by enforcing administrative sanctions as alternatives for criminal penalties. The regulation of these new institutions, according to the author’s opinion, can however be criticized both in terms of preserving the rights of the injured persons and by the fact that the prosecutor’s assessment powers are far more extended than those of the court of law.
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The termination of synallagmatic contracts with execution uno ictu represents a common cause in the judicial practice for the annulment of agreements which generates reinstatement of the parties in the former condition, by mutual restitution of the considerations executed by each of them. When the agreement is transferable of property, as consequence of the reinstatement of the parties in the former condition, the asset returns from the acquirer’s to the allienator’s patrimony, the latter having the obligation to return the delivered performance. In case a precautionary measure is established over the acquirer’s patrimony, such as distraint, the asset is frozen, thus being questioned if it can be discharged from the acquirer’s patrimony as consequence of termination. The author estimates that such thing is possible, because such discharge is not voluntary, but forced, as the pros and cons are detailed in the content of this article. Moreover, there is a series of procedural aspects that must be taken into account by the court of law invested with the settlement of such termination request.
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With rare exceptions, self-explanatory, the legal adages have proven out to be law constants, that are so enfranchised and widely accepted that, often, they have been converted from ,,rules” to ,,arguments”. Jurisprudence has capitalized them and is still capitalizing them either in the consideration of ,,their inherent binding legal force”, since, in their essence, they are objectified through legal rules, hence borrowing their value, either in the consideration of ,,their normative force” k within the newer meaning assigned to this concept k as ,,reference”, as ,,guidance”, as ,,standard” of interpretation and enforcement of the provisions of positive law. Two of these adages present a paradoxical and arguable legal circumstance: specialia generalibus derogant (special departs from general); nemo censetur ignorare legem (ignorance of the law excuses no one). They are not established in terminis (in terms) and sufficiently defined by legal dispositions. And, still, they have a binding legal force. These are, in essence, the subject matters proposed to be discussed in the study below.
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The author performs a thorough analysis of the legal content regarding the crime of fraud, provided at art. 244 of the new Criminal Code, with frequent references to the domestic judicial practice and compared with the new criminal dispositions. With respect to the normative proceedings set forth at par. 3, 4 and 5 of art. 215 of the Criminal Code adopted on 1968, abolished by the new regulation, the author believes they have not been abrogated and they shall be found as factual methods in the legal content of the crime of fraud, provided at art. 244 of the new Criminal Code, as long as the other incrimination requirements therein indicated will be accomplished. However, the author expresses some reserves regarding removal of the circumstance from the fraud ks aggravated content, when it generates highly serious consequences, as well as regarding the oversized reduction of the special limits for the penalty provided for this serious crime. Furthermore, the object of criminal protection, the crime ks subjects, the objective and subjective aspect, the forms, methods, sanctions and some procedural aspects regarding the felony set forth at art. 244 of the new Criminal Code are examined. Moreover, the author does not hesitate to express his point of view regarding the constitutional content of this criminal felony and to suggest some solutions and own opinions.
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The new Civil Code has regulated, for the first time in our legislation, the periodic property. This new legal form of the right of property has been established as a forced joint ownership, although its owners do not exercise the prerogatives of the property right concurrently and together, but successively and repetitively. This study criticizes some provisions which govern the periodic property and sets out the arguments supporting the idea that this forced property cannot be considered joint ownership of property, as the Civil Code names it.
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In this study, the author analyzes the protection measure by means of adjudication of incapacity of certain natural persons, mentally ill, by drawing a comparison between, on the one hand, the dispositions of the New Civil Code and the New Code of Civil Procedure, and, on the other hand, the old regulation contained in the Family Code of 1953 and the Ordinance no. 32/1954 regarding enactment of the Family Code and the Ordinance regarding natural persons and legal entities. In its essence, the New Civil Code preserves almost entirely the provisions of the previous regulation on this protection measure, bringing just a few elements of novelty, such as the possibility of appointing the custodian by a competent person, in case of future adjudication of incapacity or acknowledgement by law of the validity of donations made by the custodian, without being exempted of report, to the descendants of the one adjudicated of incapacity. The same thing can be observed in case of procedural dispositions, the most significant amendment brought by the New Code of Civil Procedure to the procedure of adjudication of incapacity being the modernization of the advertising system with the purpose of permitting the measure ks opposability towards third parties, thus arising two new forms of publicity, namely land registration and trade register publicity.
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In this study the authors focus on the necessity of considering the criminal ks degree of social danger in the individualization of penalty, given that the same penalty, identical as type and amount, does not generate the same effects for all criminals on whom it is applied. Concurrently, the authors highlight and conduct an ample research of the elements de facto that are used for the assessment of a criminal ks degree of social danger. Therefore, in order to comprehend the criminal ks degree of social danger, the following should be assessed: health condition (predominantly the psycho-physical condition), the criminal ks biological structure and mental characteristics, the entire social environment, the criminal ks behavior before perpetration of the crime, the criminal and legal circumstances of the criminal (convict, recidivist, prosecuted for other felonies, rehabilitated, amnestied, pardoned etc.), behavior after perpetration of the crime and during the criminal lawsuit, the level of education, as well as age. The following personal circumstances of individualization should also be included: the criminal ks capacity (officer, army enlisted, magistrate, mother etc.), civil status (married, single, widowed etc.), the relationship with the victim (close relative, relative, cohabitant, spouse, friend, enemy etc.) and any other information that might contribute to the individualization of the criminal ks individuality (for instance, lifestyle, reputation, social merits etc.).
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Cererea în despãgubire din valoarea cauțiunii este o cerere contencioasã, care presupune examinarea elementelor rãspunderii civile delictuale sub aspectul exercițiului abuziv al acțiunii, al prejudiciului produs și al legãturii de cauzalitate dintre paguba pricinuitã și conduita procesualã a pãrþii, competența de soluționare a unei astfel de acțiuni patrimoniale fiind reglementatã de dispozițiile generale cuprinse în cartea I din Codul de procedurã civilã (Înalta Curte de Casaþie și Justiție, Secția comercialã, decizia nr. 4170 din 30 noiembrie 2010).
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In the new Civil Procedure Code, a great number of court decisions remain final in the appeal in tribunals or courts of appeal, and there is no procedural way to fight against illegal or unfounded decisions. Given the judicial realities of our country, it is speculative to believe that the enforcement of the NCPC will automatically stop tribunals and courts of appeal from pronouncing illegal or unfounded decisions. Therefore, it is only natural that an adequate regulation is adopted, by the reintroduction of the action for cancellation as a last remedy for the correction of illegal or unfounded decisions. Although the action for cancellation proved its utility, it was eliminated from the Civil Procedure Code, by the Government Emergency Ordinance no. 58/2003, amending and supplementing the Civil Procedure Code. The parties in the trials for which the decisions remain final in the appeals filed with various tribunals and courts of appeal do not have access to the High Court of Cassation and Justice, and in these circumstances illegal or unfounded decisions are not submitted to the judicial control of the latter. The requirement to correct illegal or unfounded judgements passed by the courts of law is provided by art. 6 § 1 in the European Convention of Human Rights, art. 1 par. 3 and art. 124 in the Constitution, moral rules and the precepts of the Holy Bible, the sacred book of Christianity, according to which all deeds and actions of people must be based on truth and justice.
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Ending a controversy that lasted for two decades (1991-2011), Law no. 62/ 2011 on social dialogue settled, unequivocally, that in case of triggered and / or continued illegal strikes, the parties responsible are the organizers of the strike and all employees participating in such strikes, be they employees or civil servants. Further, the study proceeds to a thorough analysis regarding the legal nature of restoring liability (civil-tort or civil-contractual) of the organizers of such strikes, as well as of the „employees” (employees or civil servants) participating in such strikes, concluding that the first bear civil-tort liability, and the participating employees bear civil-contractual liability.
