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Over time, the abuse of right has been interpreted in various ways: while the advocates of absolute rights have interpreted it literally, namely as the almightiness of individual rights, the advocates of relative rights claim that the rights of one person end where the rights of another person start, so that the person excessively using its own right commits an abuse of right. As regards the explanation of its punishment, the classical theory assimilates it to tort liability, based on the moral censorship of conduct. Meanwhile, more and more of its hypotheses have become detached from fault. The new Romanian Civil Code accepts these trends partially, still remaining the prisoner of fault, as a basis for civil liability. The above-mentioned study intends to examine in a critical manner the legal solutions provided by the new regulation, trying to explain the punishment of the abuse of right on other ideas than the requirement to punish the guilty conduct of the holder. -
The analysis of the offenses against safety on public roads refers hereinafter to four other offenses (leaving the scene of an accident or changing or erasing evidence of the accident; preventing or hindering traffic on public roads; failure to comply with the tasks regarding the technical inspection or the performance of repairs and the performance of unauthorized works in the public road area), continuing our approach to present to the reader our personal option regarding this set of offenses, presently provided for in an emergency ordinance. Key words: vehicle, car, leaving the scene of an accident, changing the scene of an accident, erasing evidence of the accident, carrying out unauthorized works on the public road, preventing traffic, hindering traffic, poor performance of the technical inspection for vehicles and cars.
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The brief presentation of the appearance and evolution of the case of annulment provided under point 171 of art. 3859 parag. 1 of the Criminal Procedure Code in force, which mentions that the judgments under appeal are subject to annulment, “when the judgment is contrary to the law or when an erroneous application of the law was made by the judgment”, of the issues of unconstitutionality, of the provisions of art. 13 of the Convention for the protection of human rights and fundamental freedoms, of the practice of the European Court of Human Rights represent the arguments of the article for the need and justification of introducing the case of annulment provided under art. 3859 parag. 1 point 172 of the Criminal Procedure Code by the Law on certain measures to accelerate the settlement of trials, which guarantees that jurisdictions can effectively control the legality of the judgment, both in relation to the substantive rules and to the procedure rules, being vested with the prerogative of the possibility to annul the judgment subject to appeal.
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Starting from the legal rule of the non-retroactivity of law (initially included only in art. 1 of the Romanian Civil Code of 1864, still in force, and, afterwards, in art. 15, parag. 2 of the current Constitution of Romania – of 1991), the author makes an analysis of the theory of the non-retroactivity of law (according to the Romanian judicial doctrine), and then he examines the rules of the new Romanian Civil Code (published in 2009, but not yet in force), as well as the Draft Law for implementing the new Romanian Civil Code) which, by regulating various legal situations representing a conflict of laws in time, applies the principle of non-retroactivity of the civil law.
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Although the administrator of the association of owners or tenants can also commit the offense of embezzlement by the acquisition of surpluses created in his/her management by fraudulent means, he/she can be sued only for embezzlement and not for having committed the offense of creating surpluses in management as well. This study analyses whether the administrator has the capacity of manager according to the provisions of art. 1, parag. (1) of Law no. 22/1969 and presents the reasons why the administrator cannot be an active subject of the offense of creating surpluses in management by fraudulent means, although he/she is an employee, due to the fact that he/she is employed with an individual employment contract and has as main work tasks the management of the property and values of the association of owners or tenants.
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While the matter of the restoration of real estate abusively seized by the communist state has raised a special interest, both from individuals and from authorities, the subject of the restoration of movable cultural property remained relatively marginalized until the coming into force of Law no. 182/2000, which provides the persons entitled with the possibility of an action for special recovery of movable property, for the purpose of recovering ownership over the movable cultural property illegally seized by the State. This study intends to examine this matter, focusing on the essential aspects of the action for special recovery of movable property put into operation by the lawmaker.
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1. Principiul nullum crimen, nulla poena sine lege. Reguli generale. Drepturile fundamentale fac parte integrantã din principiile generale de drept a cãror respectare este asiguratã de cãtre instanțele europene în cauzele de concurențã, ținând cont în special de Convenția (europeanã) pentru apãrarea drepturilor omului și a libertãților fundamentale (în continuare denumitã Convenția) ca sursã de inspirație.
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In this study, the author proves that the owners’ association does not have the legal capacity to acquire land intended to be used by the association members as parking lots or for ensuring access to the building where the individual dwellings of the members are situated. In this respect, it is claimed that the legal documents for the acquisition of such land by the association are subject to absolute nullity, since they infringe the principle of specialty of the legal entity’s usage capacity, established by art. 34, parag. 1 of Decree no. 31/1954 regarding individuals and legal entities. Consequently, it is concluded that the use of land having the above-mentioned destinations may be acquired by the owners in a condominium only by legal documents concluded in their own names.
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Starting from the Decision no. 1.105/2010 on the exception of unconstitutionality of the provisions of the Government Emergency Ordinance no. 63/2010 for the amendment and supplementing of Law no. 373/2006 regarding the local public finances, as well as for establishing some financial measures, by which the Constitutional Court ruled that the subsequent effective dates of certain provisions of the emergency ordinance do not invalidate the urgent and extraordinary nature of the situation being regulated, the study examines the matter of the coming into force of emergency ordinances, in the light of the constitutional provisions and the provisions of Law no. 24/2000 regarding the norms of legislative technique for drafting regulations (republished). The study also presents a situation regarding the effective date of the Government Emergency Ordinances, starting with the year 2004 (subsequent to the revision of the Constitution).
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SECȚIILE UNITE, deliberând asupra recursului în interesul legii, constatã urmãtoarele: În practica instanțelor judecãtorești s-a constatat cã nu existã un punct de vedere unitar în aplicarea dispozițiilor art. 105, cu referire la art. 10 din Legea nr. 46/2008 privind fondul forestier proprietate privatã a persoanelor fizice sau juridice.
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The institution of conditional release under judicial control regulated in Title IV, Chapter I, Section V of the Criminal Procedure Code, has been analyzed succinctly in the Romanian specialized legal literature. The problems arising in the context of erroneous interpretations given in practice to the legal texts regulating this institution by the courts of law derive, according to the author’s opinion, from the insufficient approach at doctrinal level of the way in which the conditions under which this measure can be ordered should be interpreted. Of course, the situation should also be analyzed in the light of the particular situation of each case. Thus, the article written by the author intends to analyze the conditions under which conditional release can be ordered after addressing an actual situation submitted to judgment by the courts.
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In the following study, the author criticizes the legal regulations in Romania (mainly the Civil Procedure Code and the Criminal Procedure Code) strictly limiting the cases of abstention and recusal of judges, proposing in the end that, in addition to these, it should be generically provided that the abstention and recusal shall also act in any other situations in which the objectivity and impartiality of the judge may be questioned.
