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ACȚIUNE CIVILÃ. ASIGURÃTOR DE RÃSPUNDERE CIVILÃ În conformitate cu dispozițiile Legii nr. 136/1995, instanța dispune obligarea asigurãtorului de rãspundere civilã, în mod direct, în limita obligației sale contractuale, la plata despãgubirilor cãtre partea civilã (Înalta Curte de Casație și Justiție, Secția penalã, decizia nr. 3405 din 23 octombrie 2012). -
Potrivit art. 2781 alin. (8) lit. c) C.pr.pen., judecãtorul pronunțã soluția: „admite plângerea, prin încheiere, desființeazã rezoluția sau ordonanța atacatã și, când probele existente la dosar sunt suficiente, reține cauza spre judecare, în complet legal constituit, dispozițiile privind judecata în primã instanțã și cãile de atac aplicându-se în mod corespunzãtor”(cu notã criticã).
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The article analyzes the specific references that an offence notice has to contain compulsorily, stating an offence of the regime of driving on public roads. Although the elements of the road traffic report shall be determined by the framework law in the contravention matter, respectively the Government Ordinance no. 2/2001, the specificity of the road traffic offenses require certain specific features of these notices, especially about the description way of the act recorded as an offence, about the legal classification of the offense and the application of additional sanctions.
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This study aims to develop concepts already outlined in the doctrine, but in the light of the modern law on self-defence and exceeding its limits, containing transitional issues in relation to the new Criminal Code, accompanied by the case law up to date and reasonable own notes, while emphasizing the theoretical and practical controversies encountered. The article is prepared in an analytical style, the author reveals the key aspects regarding certain particularities and difficulties arising from the combination of the letter of the law with its enforcement. In addition to the aforementioned aspects, certain elements related to the comparative law are present, and the provisions of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms concerning self-defence, as well as de lege ferenda proposals.
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The article is based on a constant case law of the Constitutional Court of Romania where the expression of “interstitial rule” appears as a leitmotif. Under this rule, any rule of law of the European Union whose content is sufficiently clear, precise and unambiguous, and at the same time proves a certain level of constitutional relevance, will be applied within a compliance control operated by the constitutional court. Therefore, these conditions are examined in detail and also some legal proposition is designed to facilitate the situation of the direct “beneficiary” of such an enforcement – the European litigant.
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The sanction for the non-observance of the right of access to justice in the case of Iosif v. Romania, obliged the Romanian State to take the necessary measures to prevent similar breaches in the future. Undoubtedly, however, a non-unitary case law exists further in the matter of granting the public legal aid in relation to the bail. To allow the inadmissibility of the exemption or decrease of the bail amount – majority in practice – involves, in the author’s opinion, to accept the imposition of a real “obstacle” to the free access to justice. Therefore, the granting of the public legal aid regarding the stamp duty is futile as long as the possibility of granting the public legal aid in relation to the bail payment, is not recognized.
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The Competition Law no. 21/1996 and the secondary regulations issued for its enforcement advise the parties involved in a merger, assessed as having serious doubts with a normal competitive environment, to propose to the Competition Council a number of commitments aimed at removing these doubts and ultimately lead to achieving a decision authorizing the notified transaction. The purpose of this article is to analyze, on the one hand, the current legal framework of the commitments which may be undertaken by the parties in the context of certain mergers, the procedure for the proposal, the undertake and the approval of the commitments and, on the other hand, the practice of the Competition Council on this topic.
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The public order provisions supplement the law of parties. Their relevance is optional and subject to the compliance of the behaviour of the party at fault. In case of non-compliance, specific responsibility for European funds for the public procurement contracts financed from these funds is the legal means that will restore the contractual order. This specific responsibility represents a legal “lever” which allows to the state bodies to intervene in any situation and whenever it finds irregularities in the management of the European funds. The way of creating the legal liability relationship raised more controversy, whose substance will be displayed below. -
In this article, the author makes some observations about the documents necessary to carry out the real estate publicity formalities as a result of the division of a company. The non-unitary practice of courts and offices of cadastre and land registration in respect of the documents which require to be authenticated for validity and tabulation purposes lead to a non-unitary notarial practice, as well. Dissenting opinions appearing on the transfer of ownership basis and on the time of this transfer, lead to different views on the legal nature of notarial documents processed, which is reflected finally in the taxation field. This study supports the contractual nature of a division, and the manifestations of the final will are expressed, in principle, by the decisions of the general meetings of the companies involved in the division, by which they approve the terms of the transaction. That is, in the author’s opinion, in case of the transfer of real property right, these decisions require to be authenticated.
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In this study, the author examines whether after 1 October 2011 (when the new Romanian Civil Code entered into force), to what extent the creditor may enforce the shares (portions of the share capital of the limited – liability – company) belonging to its debtor, corroborating art. 66 of the Law no. 31/1990 on companies by Art. 1887 of the new Civil Code. One reaches the conclusion that the enforcement of the creditor on the shares in question is more illusory than real. That is, a number of de lege ferenda proposals are made, meaning that the right of enforcement on the debtor’s shares should change from a utopia into a reality.
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This study presents the specific elements of the security obligation, having as benchmarks the scope, the legal nature and the fundamentals of the civil repair liability and preventive, anticipatory liability based on the precautionary principle. The stated conclusions try to define this obligation, thus providing a useful approach to the legal action of the creditor regarding the debtor’s liability for infringement of that obligation.
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This paper presents propter rem obligations in terms of their distinctive characteristics that prevent their inclusion in the classical categories of property rights and obligations. The incidental nature of these obligations is emphasized in relation to the real right on which the prevalence if the intuitu rei nature is grafted in relation to that of intuitu personae and, as a consequence of these, the propter rem obligation perpetuity. The purpose of the propter rem obligation, is to facilitate the operation of real estate that is subject to real right on which is grafted, helps us decipher the accesoriality relation concerning the real right, the transmission mechanism of these obligations, and the abandon as a sanction occurring in case of failure to comply with these obligations. Recourse to abandon is not only the sanction for the non-performance of these obligations, but also the individual having the propter rem obligation, who releases himself from the performance of the obligation in this way. The last part of the paper helps to explain how certain propter rem obligations set forth in the Civil Code or in certain special laws are created and transmitted, which raises questions on the propter rem nature of some of these.
