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One of the major problems with direct implications in the effective implementation of judicial cooperation in criminal matters within the European Union is related to the need for coherent legal norms regarding the establishment of the territorial jurisdiction in the event of positive or negative conflicts of jurisdiction between the competent legal bodies of two or more Member States. In the study, the author examined the provisions of the European regulatory document framework which set out a series of legal norms on preventing and settling conflicts of jurisdiction between the Member States, making some critical remarks designed to help the improvement of the legal system. This paper is aimed at all those interested in this field and can be useful to academics and to practitioners as well. The innovations consist of the general examination of the European regulatory document provisions, of the Romanian special law, with some critical comments, and of proposals for rewording legal rules, aiming at improving the complex system of judicial cooperation in criminal matters between the Member States. -
This article seeks to clarify whether the scope of the revision cases also includes the one based on a case dismissal solution given by the prosecutor and that was deemed by a part of the legal practice as documentary evidence for the purposes of Section 5 of the Art. 322 of the Code of Civil Procedure. The author shows that the analysis of the meaning of “documentary evidence” has determined that the prosecutor’s acts lack this character, as the case dismissal solution is not decisive for the fate of the trial and has no probative value in itself. Examination of these admissibility aspects, and exclusion of the prosecutor’s case dismissal resolution / ordinance from the documentary evidence category are reasons for supporting the conclusion that this solution adopted by the prosecutor shall not be imposed upon the civil court and can not substantiate a revision which is based on the provisions of Section 5 of the Article 322 of the Code of Civil Procedure.
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Presumption of innocence is one of the basic rules of criminal proceedings being expressly regulated in art. 52 of the Code of Criminal Procedure. First recognized as a fundamental human right [the Universal Declaration of Human Rights and the (European) Convention for the Protection of Human Rights and Fundamental Freedoms], the presumption of innocence is enshrined in the national legislation, first in the republished Romanian Constitution, having specific influence on the development of the entire Romanian criminal proceedings since 2003. In this study, the author sought to identify some of the situations that affect this fundamental principle of criminal proceedings, its analysis covering several procedural institutions. Equally, he outlined several proposals to ensure the compliance with the presumption of innocence both during the trial and in the stages prior to the prosecution, referring both to the current criminal procedural rules and to those provided for in the new Code of Criminal Procedure (Law No. 135/2010).
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Appeal for annulment – extraordinary remedy at law under the current Criminal Procedure Code and the new Code of Criminal Procedure – may be exercised against final judgments pronounced by the last instance of judicial control provided there are certain cases expressly mentioned and that it is filed in a given period. Final judgments may also concern other aspects adjacent to criminal proceedings, for example, taking, retention or reversal of preventive measures or enforcement of a European arrest warrant. In such cases, taking into account that the law of criminal procedure does not provide other terms of admissibility, under the dictum “Ubi lex non distinguit, nec nos distinguere debemus”, the author considers that the appeal for annulment extraordinary remedy at law may be exercised in such cases as well; the case law solution stating that the appeal for annulment is admissible only against final judgments resolving the case merits is therefore illegal.
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The author argues that, for repeated offense and continued criminal offense, the time of the offense, which determines reversal of the conditional suspension of execution of sentence is the first time the constituent elements of the offense were met and not when the offense was completely consummated. If the first time when the elements of the offense that enter the natural or legal unity of the repeated or continued criminal offense were met was discovered after the expiry of the trial period, the court shall not rule the reversal of the conditional suspension of execution of sentence.
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The authors examine the issue of the former immovable properties, exclusively “state-owned” (during 1948-1991), which later, after 1991, became, as appropriate, public or private property, either of the State or of the administrative-territorial units. Whereas the status of such property is not always expressly clarified by legal rules (in the sense that after 1991 they became public or private property either of the state or of the territorial administrative units), in end of the study the authors embrace certain legal criteria for performing the said placement, thus trying to find a solution to the problem which is the subject of this study.
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Analyzing the draft of the Romanian law regarding the protection of national minorities in Romania (to be adopted pursuant to the Framework Convention for National Minorities adopted in 1995 by the Council of Europe), the author believes that inserting the definition of the “national minority” term into law is inappropriate; the mere listing of some objective criteria, useful for identification, is sufficient and useful.
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The relatively recently legal notion of imprevision brought under Romanian regulation by the new Civil code that came into force October 1st, 2011, is expected to be subject of numerous specialized analyses in order to clarify the various aspects that make up its identity, characteristics and effectiveness. Following the purpose described here-above, this study aims especially at conjugating the theory of imprevision with the copyright transfer agreement. The article hereafter contains standpoints and de lege ferenda suggestions in relation to the party entitled to institute the legal proceeding relative based upon the imprevision theory, the criteria to be observed in order to adopt a solid legal settlement in this respect, the contracting parties and the court’s role in interpreting and applying the imprevision theory.
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Case law has outlined a solutions divergence on whether prisoners of war and / or persons who have been deported on ethnic grounds in the 5th decade of the last century may or may not benefit from compensations governed by previous regulations regarding these two categories of persons. Author’s well-founded view is oriented towards a negative direction.
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Examining art. 201 of Law No. 71/2011 for the implementation of the new Civil Code (Law No. 287/2009, republished on July 15, 2011) in conjunction with art. 6 paragraph (4) of the said Code, the author concludes that judicial bodies (judiciary authorities and arbitration courts) can, ex officio and at any stage of the trail, claim the limitation periods that have begun under the former regulation (Article 18 of Decree No. 167/1958) as well, regardless of whether such limitation periods have been met or not until the entry into force of the new Civil Code; subsequently, only the limitation periods which have begun after October 1st, 2011 (the date of entry into force of the new Civil Code) shall be able to be claimed exclusively by the interested party and only until the first term the parties were duly summoned at (this according to art. 2513 of the new Civil Code).
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The new Romanian Criminal Code’s lawmaker took most of the regulations from the Criminal Code in force, the so-called constants of criminal law, but also introduced new ones, unknown to our law, some of which being required by the current socio-economic conditions and others being introduced out of the lawmaker’s desire to bring something new to the criminal law in force or simply to take them from other foreign laws, although criminal law science did not call for this. In this study, the authors make an inventory of these innovations, while attempting to analyze thereof and show the unfittingness of their introduction or acquisition from other foreign laws.
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In Romania, the former Code of Civil Procedure (of 1865, republished in 1948 and amended and supplemented many times since then) with effect from February 1st, 2013 will be repealed and replaced by the current Code of Civil Procedure (Law No. 134/2010, republished on August 3rd, 2012). The topic of producing evidence in the new Code of Civil Procedure is being approached in this study; its authors believe that the new Code has not made essential amendments to the provisions relating to producing evidence, but only a number of additions in some areas such as: trial investigation; selection of the producing evidence procedure; the place of the trial investigation (in closed session and not in open court); producing evidence etc.
