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Potrivit art. 1491 C.pr.pen., procurorul, când considerã cã arestarea inculpatului este în interesul urmãririi penale, întocmeşte propunerea motivatã de luare a mãsurii arestãrii preventive a acestuia numai dupã ascultarea inculpatului în prezenţa apãrãtorului. În plus, conform art. 150 alin. 1 C.pr.pen., mãsura arestãrii inculpatului poate fi luatã numai dupã ascultarea acestuia de cãtre procuror şi de cãtre judecãtor, afarã de cazul când inculpatul se aflã în strãinãtate ori se sustrage de la urmãrire sau de la judecatã ori se aflã în una dintre situaţiile prevãzute în art. 1491 alin. 6 C.pr.pen. (cu notã criticã). -
In the article, the author claims that the settlement of the proposal for remand in custody in open session, although the law provides for the settlement in closed session, as well as a decision, even if it was made by the Registrar, in violation of the law, and did not cause essential harm, such as to justify annulment of the act, while the delivery order was made, that public notice of the solution given by the judge, are subject to relative nullity. Also, it was assessed that, during the settlement proposal for remand in custody is not necessary for the court to rule on the defense request to undertake, before the defendant, the obligation not to leave the city or country, the obligation of examining taking less intrusive preventive measures, being included in the analysis of the necessity of the remand in custody.
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For the correct qualification of an act of a servant who, in the exercise of his office duties, knowingly does not act or fails to act correctly, by misleading a person, presenting as true a false or misleading act or as false a true act, it is necessary to draw the line between fraud offence, involving a misleading activity, and the offense of abuse of office against private interests as malfeasance while in office, regarding which the question is whether it can be committed through acts of deceit and in case this possibility exists, if it will be considered abuse of office against private interests, or there are cases, although this special quality exists, it will be considered fraud offence.
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The issue of fighting corruption has been and still is a constant concern of the Romanian and foreign legal doctrine, as „corruption” takes various forms of manifestation punishable by criminal law as separate crimes. From this perspective, the author considers it useful to see the evolution of criminal law on fighting corruption in our country, by comparing the crime of corruption in the current criminal law with those regulated in the new Criminal Code. The article also emphasizes on the crime of buying influence, as a specific means of corruption crimes.
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The issue of territorial planning and urbanism became especially important after the entry of Romanian in the European Union, due to the complexity and multitude of problems imposed by the dynamics and evolution of society. The ambience of constitutional provisions, conventional and community rules, the issue of the administrative court institution regarding urbanism and territorial planning and, notably regarding cancellation of building permits, acquires great importance and is intended to guarantee the fundamental rights and freedom of citizens in this complex field, less explored in literature. Based on these challenges, this study analyzes several issues that rise interest in attacking building permits in administrative court.
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Law no. 119/2010 settled that all service pensions (except those of magistrates and judges of the Constitutional Court) become common pensions (therefore established under the common law of pensions, i.e. Law no. 19/2000). In order to enforce Law no. 119/2010, Government Decision no. 735/2010 was issued. Among service pensions (now common pensions) are also the pensions awarded to retired persons coming from the system of defense, public order and national security. From July 2010 to January 2011, these service pensions were recalculated as common pensions under Law no. 119/2010 and Government Decision no. 735/ 2010. Subsequently, under Government Emergency Ordinance no. 1 / 2011, from February to December 2011, based on other criteria, said pensions were recalculated again (under Government Emergency Ordinance no. 1 / 2011). Being that, by law, each of these recalculations can be challenged in court, the author of this study examines the jurisdiction to settle the appeal of the decisions to recalculate the pensions in question, both those set initially according to Law no. 119/2010 and Government Decision no. 735/2010, and those recalculated again subsequently according to Government Emergency Ordinance no. 1 / 2011.
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This study is designed to examine, in the detail, the issue of the administrator liability for the fraud committed against the company. The author have been trying to propose solutions for a series of problems regarding the definition of the expression „fraud against the company”; the discrimination between the fraud and the power abuse, as well as the relation between the sanctions for the exclusion and revoking of the associate administrator, namely when his exclusion applies and when his revoking applies.
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In this study, the author stresses the need to take into account the gravity of the crime committed for punishment individualization, as the gravity of the crime and the punishment are connected by an inseparable nexum, both in the abstract formulation of criminal norm – not being able to imagine the description of a deed in a norm without punishment or vice versa – and in social consciousness, always linking the punishment to the gravity to the crime, in a relationship of cause and effect. However, the author reveals and performs an extensive research of the elements actually serving in the assessment of the gravity of the crime. Thus, in order to know the gravity of the crime committed, one must assess the specific nature and particularities of the specific legal object, the character and importance of the physical or intangible object injured or endangered by committing the crime, the way the action or inaction which constitutes the material element of the offense was performed, the nature and gravity of its consequences, the way the causality report was described, the shape and degree of culpability, the motive and purpose and the circumstances of the crime.
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The article analyzes the waiver of penalty as a new institution in criminal matters, the utility, the legal enforcement mechanisms, and its legal effects in the field of criminal repression.
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In this study, the author makes an analysis – partly critical – of the provisions of Law no. 50/2011 on the performance of certain seasonal activities by day-workers, focusing on the correlation of this law with the European regulation in the field (Directive 1999/70/EC), noting that a series of provisions of Law no. 52/2011 should not be interpreted literally, but according to a „consistent interpretation” in order to avoid a series of contradictions and inconsistencies between the said directive and Law. 52/2011.
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As of November 1999 to May 2011 the issue of strike was legally regulated by Law no. 168/1999 on the settlement of labor disputes, and in May 2011 by Law no. 62/2011 on social dialogue (which expressly abolished the provisions of the Law no. 168/1999 on strike). In this study, the author examines the new regulation on strike, highlighting both the provisions preserved from the previous law (no. 168/1999) and the new elements brought by Law no. 62/2011, highlighting, as the case may be, the positive or the negative aspects of Law. 62/2011.
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Promoting the conception according to which material evidence should be exclusively reserved for civil procedure as evidence is fulfilling its main role in trial, the author stresses that the new Civil Code achieves the unification of evidence regulation in civil matters, by including this regulation in art. 243-382 of the new Civil Code, a salutary solution, in accordance with the majority opinion of the doctrine. The Legislator, based on the new Civil Code, preserves part of the evidence regulations of the previous Code, but also embracing solutions adopted in the Civil codes of other states, such as, for example, the French, the Canadian province of Quebec or the Swiss Civil Code. Of course, the new Civil Code includes innovative solutions that the author deems useful and necessary, such as those relating to admitting as evidence documents stored on computer media or those regarding material means of evidence.
