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This study proposes a thorough and precise examination of the provisions of the present Civil Code regarding the institution of the contract, especially, its drafting mechanism. The objective of our research concerns the reference made to the innovative items, but also a critical view regarding the possible discrepancies existing between the legal text and the judicial practice, respectively the concepts developed by the specialty literature under the pressure of the Civil Code of the year 1864. The approach is based upon a permanent tendency to refer to the comparative law, especially the European law and the great projects of unifying the regulation of the international commercial contracts, UNIDROIT Principles and the Principles of European Contract Law. We notice that one of the basic ideas taken into account by the editors of the Civil Code is that of „unifying” the civil law and the commercial law, by adopting the solutions proposed by other Codes, such as the Swiss or the Italian code. The assembly of the regulations applicable to the mechanism of the contract drafting has to be construed from this perspective. The usefulness is undisputable considering that the distinction cannot be justified at this level in a modern society. Likewise, it is required to specify that in the matter of drafting the contract, the good faith principle was raised to the rank of an „axiological summum”, being present both in the negotiations-related regulations and in the rigorous and detailed provisions of the offer and of its acceptance. -
The author examines the provisions of articles 1013–1024 of the new Romanian Code of civil procedure (Law no. 134/2010, as republished on the 3rd of August 2012 and entered into force on the 1st of February 2012) in the matter of the order for payment comparing them to the previous provisions (abrogated at present) of the Government Ordinance no. 5/2001 on the payment summons and of the Government Emergency Ordinance no. 119/2007 regarding the order for payment. Finally, she appreciates in a positive manner the new regulation in the matter and recorded in the new Romanian Code of civil procedure.
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From the point of view of the legal content, the execution of the prison sentence under supervision represents the penultimate way as regards the difficulty of the execution regime, being more facile than the regime involving deprivation of liberty. This execution method disposed by the trial court produces immediate effects, so that the sentence imposed is not actually executed, however, during the supervision period, the person convicted must observe the supervision measures set forth by law, the obligations imposed by the court and to fully perform the civil obligations set forth in the judgment of conviction. If the person convicted does not commit any new offence and he/she complies the supervision measures and with the abovementioned obligations during the supervision period, this execution method produces final effects as the sentence imposed is deemed to be executed by operation of law. In exchange, in case the person convicted does not comply with the supervision measures set forth by law, with the obligations imposed by the court or with the civil obligations set forth in the judgment of conviction during the supervision period, the court is obliged to revoke the advantage of suspending the sentence execution under supervision and to dispose its execution by deprivation of liberty. If the person convicted commits a new offence during the supervision period, the trial court is obliged to establish the sentence for the respective offence, to revoke the suspension of the execution of the sentence under supervision and to apply the sentence according to the second offence rules or to the rules of the intermediary plurality.
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The study approaches the issue of the recrimination of the offence of usury according to the new Romanian Criminal Code. The author examines the criminal, contravention and civil involvements of lending money on interest and emphasizes the part that the National Bank of Romania has for authorizing the persons entitled to lend money on interest.
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The codification is not only the expression of the political will of the legislator, but mainly a complex judicial technique of selecting and adjusting the normative content needed and adequate for a certain social, political, economic or institutional reality. As the constitution is a law, but it is rather differentiated from a law, the question to be raised shall consist in deciding what kind of legal rules it comprises. The settlement of this problem has to take into consideration the specificity of the fundamental law, but also the requirements of the codification theory. The establishment of the normative content of the constitution with all scientific rigor shall be indispensable, both for the removal of the inaccuracy as regards the determination of the differences from the law, for the stability and predictability of the basic law and last but not least for the reality and effectiveness of its supremacy. This study carries out an analysis of the techniques and requirements of selecting and adjusting the constitutional rules depending on the comparative criteria, referring to their specificity, to the practice of other states and within the historical background.
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In this study has been underlined the most important trends and options regarding the role of state sovereignty in the contemporary world. Has been analyzed the place of the sovereignty in the process of integration and globalization. The conclusion is that even in this process, sovereignty of state continues to be an important component in the relations of states, based on cooperation and non-subordination.
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This study describes a series of aspects regarding: the form of the state, the structure of the state and the governing form, insisting upon their features and divisions, at the same time pointing out the classifications of the structures of the state (the unitary state, the composite state); respectively, the monarchy (absolute and constitutional) and the republic (presidential, semi-presidential or parliamentary).
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The trust that the patient grants to the medicine professionals for applying the prevention or treatment methods corresponding to his health condition, under the lowest risks, depends on correct and complete information regarding his prevention, diagnostic and treatment activities. Actually, the breach of this deontological duty represents an act of betrayal of his trust, as he could not choose the best solution corresponding to his own interests, in the circumstances in which the patient is free to decide about his own fate. From the legal point of view, this breach of duty results in the civil liability incurred for the prejudices caused to the patient. Considered from the perspective of the biomedical ethics, the physician’s duty to inform the patient brings into focus an interesting subject of research: the manner in which the observance of the patient’s autonomy affects the mechanism of adopting the medical decision related to the diagnostic, the care, the treatment or determining him to undergo certain scientific experiments. From this perspective, the study tries to provide a new approach of the duty of information, but this time from the ethical point of view related to the consideration due to the dignity of the patient human being who is so vulnerable and suffering. The selection of the case law solutions rendered completes the exposure of the legal consequences regarding the breach of this duty.
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In this study the author performs a general exposure of the concept of periodic penalty payments firstly (concept, terminology, origin and evolution; legal nature; goal, legal basis; structure), and then examines the legal regime of the periodic penalty payments in the administrative matter (the grant conditions; the forms of the periodic penalty payments and the liquidation of the periodic penalty payments in the matter, and finally he discusses about the issue of the periodic penalty payments in the administrative matter in the light of the European Convention for the Protection of Human Rights and of Fundamental Freedoms (including in terms of the practice of the European Court of Human Rights from Strasbourg).
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According to the previous Romanian Civil Code (1864), and to the present Civil Code, as well (Law no. 287/2009, as republished), regarding the way they are drafted, the contracts may be consensual or real, as appropriate (the contract is drafted just upon the handover of the good; only a promise of agreement is valid until that time). The author, according to a certain part of the Romanian legal doctrine, considers that from the legal point of view, the contract for the transportation of persons has a consensual nature (is concluded by the simple agreement of the parties), however the contract for the transportation of goods has a real nature (being concluded just upon the handover of the good to be transported).
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According to the Romanian laws in the matter, the President of Romania, the senators, the deputies, the presidents of the county councils, the mayors, the county counselors and the local counselors are elected by the people by direct vote. Instead, the vice-presidents of the county councils and the deputy mayors of the local councils shall be elected by the indirect vote of the representatives elected in the county councils and respectively, in the local councils. Examining this issue regulated in several laws successively amended and supplemented, which results in a series of confusions regarding the enforcement, the author concludes that it would be reasonable and advisable for the vice-presidents of the county councils and for the deputy mayors of the local councils to be elected by a direct vote.
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The article contains an analysis of litigation on reducing military service pensions recalculated/revised by Law no. 119/2010 and by Government Emergency Ordinance no. 1/2011, in relation to those retained by the High Court of Cassation and Justice in Decision no. 29/2011, given in solving interesting appeal in law, on the application of the provisions of Law no. 29/2011. From the perspectives of the Decision no. 29/2011 the High Court of Cassation and Justice, the analysis is presented on two levels. First, targeting issues of constitutionality of the Law. 119/2010 and, second, conventional control of the law courts, in assessing the application effects in concreto of national standards, by reference to the European Convention on Human Rights.
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Taking into consideration the subtle and random criteria as an incidence in the delimitation of influence peddling from the fraud offences, it is likely that in very similar cases of misleading, the criminal will be lucky due to the occurrence of the influence peddling or it is likely that should not have been lucky when he committed materialized deeds supplementing the constitutive content of the fraud offence in relation to similar material damages. It is likely to cause material damages also in the matter of the formal criminal deeds and in the process of the legal and judicial individualization of the punishment, also the amount of the material damages produced as a result of the concrete endangerment offence should be taken into account.
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In this study the author examines the treason offence both from the perspective of the applicable Criminal Code and of the new Criminal Code, pointing out the main similarities and differences between the two regulations. Likewise, the high treason is referred to, representing a legislative novelty introduced for ensuring the legality principle related to the provisions of the Constitution of Romania, as republished.
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In this study the author carries out a summary of the anti-competitive practices, of the applicable laws at the national and European level, of the investigation and control procedures. Thus, the anti-competitive practices, the different views of the American law system and the European law system are examined regarding these practices and their impact on the national and world economy, the actions taken by the supervision and control authorities for their incrimination, the applicable sanctions.
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Presenting the specific fundamental rights granted to the European citizens, of the new rights guaranteed in compliance with the progress and development of the society and taking into consideration the case law of the European Court of Human Rights and of the Court of Justice of the European Union, the author emphasizes the autonomous nature of the Charter of fundamental rights of the European Union. The fact that the Charter of fundamental rights of the European Union is granted a binding legal value after the Treaty of Lisbon enters into force, shall have an important part for the accession of the European Union to the (European) Convention for the protection of human rights and of fundamental freedoms. The Charter of fundamental rights of the European Union shall contribute to the acquirement of the important part that the European Union will play on the international stage, in the field of the human rights protection.
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Potrivit dispozițiilor art. 21 alin. (1) din O.G. nr. 25/2002 privind unele mãsuri pentru monitorizarea postprivatizare a contractelor de vânzare-cumpãrare de acțiuni deținute de stat la societãțile comerciale, în cazul desființãrii contractului pe cale convenționalã sau judiciarã, Autoritatea va reține de la cumpãrãtor toate sumele achitate de acesta în contul contractului, reprezentând, dupã caz, avans, rate, dobânzi, penalitãți achitate cu orice titlu pânã la desființarea acestuia.
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1. ANDREESCU, MARIUS – Constituționalitatea recursului în interesul legii și a deciziilor pronunțate. În: „Curierul judiciar” – nr. 1/2011, p. 35-38. Autorul susține propunerea de lege ferenda ca, în perspectiva unei revizuiri a Constituției, sã se prevadã competența Curții Constituționale de a exercita control de constituționalitate asupra deciziilor pronunțate de Înalta Curte de Casație și Justiție în procedura recursului în interesul legii și asupra actelor juridice exceptate de la controlul judecãtoresc.
