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Examining the impact of the entry into force of the new Romanian Civil Code (Law no. 287/2009, republished, effective since October 1st 2011) the author concludes that, despite the “monistic” nature of the new Code, the commercial legal relationship still exists (but grounded on the concepts of business and professional). So being, says the author, commercial law remains timely even though its legal basis is within the new Civil Code. Therefore, to avoid misleading foreign investors, one suggests changing certain legal texts of legal acts implementing the new Civil Code, de lege ferenda, for the purpose of restoring the traditional concepts of “company”, “commercial agreements”, “legal relationships / commercial disputes”. -
In this study, the author makes a relatively exhaustive analysis of the provisions of Articles 1221 to 1224 of the new Romanian Civil Code (Law no. 287/2009, republished on July 15, 2011 and effective since October 1st 2011) stressing the differences - substantive - between regulations on damage (as vice of consent) in the present Civil Code and in the previous Civil Code (of 1864).
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By carrying out a review of Articles 312 to 328 of the new Romanian Civil Code, the author concludes that this Code allows conflict of laws relating to primary matrimonial regime; enforcement of mentioned rules is not required, as they are components of Romanian private international law public order.
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The study hereafter aims at developing the subject represented by the lease contract of an intellectual creation correlated with the new legal dispositions of the Civil code concerning the lease agreement. The analysis is inscribed in the author’s sphere of interest concerning the major copyrights turning into account agreements following an ample theoretical schedule, which is defined by the effort to compare the particular legal provisions on this type of agreements to the larger area of legal provisions comprised in the Civil code that came into force in October, 2011. The necessity of this study is derived from the circumstance that this type of agreement dealt with hereafter is brought under regulation by a single article encompassed in Law no. 8/1996, corroborated with the fact that the patrimonial author’s rights turning into account agreements are not referred to within the legal provisions of Law no. 287/2009. (The Civil Code)
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The author provides detailed analysis of the legal content of the offense of abuse of office as stipulated for in Art. 297 of the new Criminal Code. He examines the object of criminal protection, the subjects of offense, the objective and subjective sides, the forms, methods, sanctions and certain procedural aspects relating to the offense provided for in Art. 297 of the new Criminal Code. Also, the author does not hesitate to express his views regarding the constituent content of this criminal offense, its systematization, and its nature and to advance certain solutions and ideas of his own in this regard. Last but not least, certain personal views about the concept of subsidiarity, and the law applicable in the event of transitional situations are also promoted.
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Pursuant to Art. 147, paragraph (4) of the Romanian Constitution republished on October 31, 2003, “Rulings of the Constitutional Court shall be published in the Official Gazette of Romania. As from their publication, rulings shall be generally binding and effective only for the future”, and pursuant to Art. 147 paragraph (1) of the said Constitution, the provisions of the laws, ordinances and regulations in force found to be unconstitutional shall cease their legal effects within 45 days of the publication of the decision of the Constitutional Court if, in the meantime, the Parliament or the Government, as the case may be, cannot bring into line the unconstitutional provisions with the provisions of the Constitution.. Under these constitutional requirements, the study’s authors comprehensively examine the casuistry these rules have generated, the Constitutional Court jurisprudence in the matters and so on, and the delicate situation arisen because neither the Constitution nor any other law expressly regulates the state of laws or Government ordinances (no longer existing) declared unconstitutional.
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In this paper the author makes a comparative analysis of Art.72 (“notifying the enforcement of collective redundancy”) and Art. 74 (prohibition of new employment subsequent to collective redundancies, employees right to reemployment) of the Labor Code (Law no. 53/2003, republished on May 18, 2011), texts related to the Council Directive no. 98/59/EC of July 20, 1998. In this respect, the author concludes that although usually the said texts of the Labor Code are consistent with the aforementioned Directive, however, the amending / supplementing of the Labor Code is required to imperatively establish a mandatory form of employees representation outside the union organization, taking into account that the “employees representatives” institution (Articles 221 to 226 of the Labor Code) is currently optionally governed (and not mandatory), and only where the employer exceeding 20 employees had not constituted representative unions.
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The present study examines in detail the conditions for contracting authority’s cancellation of the award procedure for the public procurement contract, taking into account that the legislative act (Government Emergency Ordinance no. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services) underwent the last 2-3 years - in the terms considered - radical changes likely to run on the current legal regime.
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Public-private partnership in the Romanian law is one way of effective management of public or private property owned by the State or territorialadministrative units that meets a particular need of these entities; its object is the execution of works, supply of products or provision of services. In the current legislative context, the public-private institution finds a new legislative establishment through the Law no. 178/2010 concerning the Public-Private Partnership, as amended and supplemented. In the climate of the new regulations in this area, the present study proposes an analysis of private investors selection procedures, considering that the private investor selection is a crucial procedural step in awarding the public private partnership contract, as it concerns the transparency of public authorities in the execution of the contract and aims at ensuring the protection of free competition in awarding such contracts.
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In this article, whilst critically analyzing the relapse doctrine and jurisprudence, the authors argue that the provisions of Article 38 paragraph (2) of the Criminal Code – which stipulates for that convictions for which rehabilitation occurs or for which the rehabilitation period was completed do not entail the relapse status - do not imply that the relapse status is determined by court rehabilitation decision, but just by meeting the rehabilitation deadline, without inquiring whether the other judicial rehabilitation requirements are also fulfilled.
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The author examines the offense of child maltreatment in relation to the offense history and in terms of the new Criminal Code. Also, de lege ferenda, the author suggests that the offense analyzed should be provided for in the chapter on offenses against the family of the new Criminal Code; this solution was also adopted by the Criminal Code in force.
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Assuming the many relationships between cybercrimes stipulated by Law no. 161/2003 and Law no. 365/2002, as well as between those and criminalization under the Criminal Code in force, the author seeks an analysis which could highlight the concerns that may arise in this context. Also, given the applicability title various criminal provisions acquire in a particular concurrence of skills, the author found it necessary to identify the specific indictment’s wording to be applied first, based on an analytical process. These findings were also analyzed with regard to the provisions of the new Criminal Code, verifying whether the new regulations preserve or not the concerns identified within current legislation. Last but not least, reasoning used in the literature in the matter was considered as well as the judicial practice solutions to see how they have resulted in the appropriate identification of the indictment’s wording applicable.
