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This paper provides a legal analysis of rules in the new (Romanian) Civil Procedure Code on ensuring a unitary judicial practice, i.e. the appeal in the interest of law and, respectively, the referral to the High Court of Cassation and Justice for a preliminary ruling on the settlement of matters of law. While the appeal in the interest of law existed also in the previous Civil Procedure Code, the referral to the High Court of Cassation and Justice is a new procedure, not regulated by the previous Civil Procedure Code. -
This article analyses the categories of incompatibilities of judges regulated by the Civil Procedure Code, since its initial publication in 2010 to the amendments brought by Law No 76/2012 implementing Law No 134/2010 on the Civil Procedure Code and to the version that resulted after the republication in August 2012. In the original version of the Civil Procedure Code distinction was not made between cases of incompatibility, but the effects thereof resulted in the existence of two categories: absolute and relative incompatibilities. Following amendments brought by Law implementing the Civil Procedure Code, this distinction seemed to be established in the legislation. Nevertheless, after the republication of the Civil Procedure Code, marginal titles suggest the existence of some cases of absolute incompatibility and other cases of absolute incompatibility, which does not correspond to the content of the respective texts since only cases referred to in Article 41 of the Civil Procedure Code are absolute, while those referred to in Article 42 of the Civil Procedure Code are relative.
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Among the means of protection of a creditor’s rights, the present Civil Code regulates the (Paulian) revocatory action within Articles 1562–1565. This civil action has been regulated also in the previous Romanian Civil Code. However, in this study the author examines exhaustively the admissibility conditions of the revocatory action in the light of the present Romanian Civil Code, which entered into force on 1 October 2011.
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This article intends to provide an analysis of one of the cases of absolute nullity of marriage, expressly regulated by the Civil Code, i.e. bigamy. After a brief introduction follows the discussion of the sanction of a marriage concluded by an already married person whereby relevant provisions, conditions to be fulfilled for establishing the absolute nullity of marriage in case of bigamy, as well as some aspects pertaining to invoking good faith at the time of concluding the new marriage are taken into account.
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Economic offence can be defined as a deed that affects the legal regime established for carrying out economic activities. Unlike the Criminal Code of 1968, which dedicated the Title VIII of its special part to economic offences, the new Criminal Code contains only some economic offences, scattered among various titles and chapters.
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In this study the authors criticize an isolated opinion (the vice of consent of lesion is inapplicable to the individual labour contract) expressed more or less recently in the Romanian legal literature. The provisions of Article 1221 and (limitatively and partially) Article 1222 of the Civil Code supplement the provisions of the Labour Code. On the other hand, Articles 1223–1224 of the Civil Code are completely inapplicable in case of individual labour contract.
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The author analyses (partly critically) provisions of Article 16, Article 17 and Article 19 of the Romanian Labour Code concerning the written form of the individual labour contract, the obligation to inform the employee on the essential clauses of the contract and the sanction for the failure to fulfil the information obligation with a view to better correlate them with Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship and with the case-law of the Court of Justice of the European Union on this matter.
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Mediation is governed by Law No 192/2006. In criminal matters, mediation is a restorative practice designed to solve the conflict between the parties involved. For a limited number of offences a criminal mediation agreement has the effect of preventing the initiation of criminal prosecution or ending criminal proceedings. This does not mean that parties may come to an agreement on the criminal aspects of the criminal proceedings as the legislator may seem to let us to believe. The only aspect on which an agreement may be reached concerns withdrawal of a prior complaint or reconciliation of parties in case of certain offences; these are impediments distinctively regulated in the mediation agreement. As a matter of fact, the consensus between parties in criminal proceedings, contained in the mediation agreement, exceeds the limits imposed by what is usually considered as the criminal aspect and the civil aspect of those proceedings. Through their will, parties may limit themselves to an agreement only on civil claims within criminal proceedings.
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Abuz în serviciu contra intereselor persoanelor. Complicitate la furt calificat. Concurs ideal. Fapta inculpatului care, aflându-se în exercițiul atribuțiilor de serviciu, cu știință, nu a îndeplinit acte pe care trebuia să le efectueze în temeiul îndatoririlor sale de serviciu, constând în aceea că nu a întocmit procesul-verbal de constatare a infracțiunii de furt calificat, nu a reținut autorul faptei și nu a sesizat organele de poliție, întrunește elementele constitutive ale infracțiunii de „abuz în serviciu contra intereselor persoanelor”, prevăzută în art. 246 C.pen. cu referire la art. 258 C.pen.
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Actul emis de Oficiul Român pentru Drepturile de Autor (ORDA) în vederea convocării părților în procedura arbitrală potrivit art. 1312 alin. (4) din Legea nr. 8/1996 nu are caracterul juridic al unui act administrativ în sensul art. 2 alin. (1) lit. c) din Legea nr. 554/2004. În succesiunea operațiunilor prin care se realizează negocierea metodologiilor la care se referă art. 130, 131, 1311 și 1312 din Legea nr. 8/1996, actul care produce efecte juridice îl reprezintă metodologiile negociate, iar activitățile anterioare, premergătoare, au valoarea juridică a unor operațiuni administrative sau simple operațiuni materiale care pregătesc, însoțesc adoptarea actului producător de efecte juridice. (Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal, Decizia nr. 59 din 10 ianuarie 2013)
