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The study is devoted to the legislative convergences and divergences existing at the level of the European countries regarding the functioning of small and mediumsized companies. The first part of this approach emphasizes the important role of small and medium-sized companies within the national economies, including their contribution to the formation of the gross domestic product. In the author’s opinion, the support granted by the political and legislative powers, including by the doctrine, is not in accordance with the contribution brought by the small and medium-sized companies to the development of the national economies. Starting from the finding that the typical legal form of functioning of the small and medium-sized companies is represented by the limited liability companies, the author presents the most relevant aspects regarding their establishment, organization and functioning. A particular analysis is also carried out in relation to Directive 2017/828/EC, a European document that is likely to significantly promote appropriate normative convergences. The author also emphasizes some positive trends manifested at the level of the European Union, such as those represented by the elimination of the fixed minimum share capital or by the reduction thereof. Among the legislative divergences, the author analyzes those determined by the conflicts of interests between the members of the limited liability company. In particular, the author takes into account the divergences concerning the right of the minority members, whose interests are threatened by the actions of the majority members, to freely exit that company. -
Although the European Union’s activities hardly integrate into the civilist logic of the „illicit legal act”, its non-contractual liability is triggered in particular for what the doctrine generically calls „behaviours” considered to be illegal. Even under this generous hypothesis, the Union liability can only be engaged under very strict conditions, less established by the Treaties and, rather, by the judge in Luxembourg, on the basis of some rules that discourage the litigants, limiting the possibility, in procedural and material terms, to bring such actions. The jurisdiction to settle the disputes concerning non-contractual liability of EU exclusively pertains to the European Unional jurisdictions, by applying Article 268 TFEU, which necessarily implies that the non-contractual liability of the Union must be engaged solely on the basis and under the conditions of EU law. Such an argument is fundamentally justified by the fact that engaging this liability very often implies that the scope of application is an appreciation of the Union’s policy, which is why the exclusion of the competence of any national jurisdiction appears to be natural.
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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.
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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.
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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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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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Article 42 (3) of the Annex to the Order of the Minister of National Defence No M.110/2009 is a true legal innovation because it extends the scope of the liability for medical malpractice to hotel obligations (specific to the tenancy contract) within the content of the medical contract, but, at the same time, reduces the sphere of liable persons down to the military physician (treating physician and section chief), by exceeding the express legal limits of the liability of the physician and actually taking over not only the entire medical liability of the military hospital, but also of the medical equipment producers and of the suppliers of utilities of the military hospital.
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The author’s approach is intended for a partially critical analysis of the Decision of the Constitutional Court No 225 of 4 April 20172, by which the phrase „likely to prejudice the prestige of the profession” within Article 14 a) of the Law No 51/1995 was declared unconstitutional. The Constitutional Court has held that the criticized text is devoid of precision, clarity and predictability, as it does not circumstantiate the scope of the offences likely to cause the unworthiness in the profession of lawyer. The author considers that this solution of unconstitutionality makes an exaggerated interpretation of the incidental legal provisions, unduly restricting the right of appreciation of the competent structures of the professional organization of lawyers and of the judge called to settle any possible disputes. Within this study it is noted that there are various other situations in which the right of appreciation of the judge can not be challenged in our legal system. The approach included in this study also insists on the consequences which can be determined by the analysed solution of unconstitutionality, due to the existence of some identical or very similar provisions in respect of other liberal legal professions as well. A cavalcade of pleas of unconstitutionality, based on similar considerations, could raise for discussion other important institutions of law as well, such as those concerning the disciplinary, contraventional, civil or even criminal liability.
