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This paper approaches the theme of disuse as a modality of lapse of the subdivisions of the property right. If the property right, given its perpetuity, does not lapse by disuse, its subdivisions, which are mostly temporary, shall lapse by the failure to exercise the right. The sanction is expressly regulated by the present Civil Code in matters of usufruct and servitude and it is applicable, for identity of reason, to use and habitation. The study also examines the extent of interference of the disuse with the acquiring of the subdivided right by usucaption, as well as the consequences that it might have the legal nature of the limitation period acknowledged to the disuse period. -
This study has as object the logical and legal analysis of the conditions in which, according to Article 341 of the Civil Code, the incomes from work, the sums of money payable as pension within the social insurance system and others similar, as well as the incomes payable under an intellectual property right are considered common assets jointly owned by spouses. The study also includes analyses relating to the categories of incomes and sums that, under Article 341 of the Civil Code, are considered common assets jointly owned by spouses.
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Damages can be assessed by the court, by law or by the willful agreement of parties. This study analyzes the notion of damages, the conditions for awarding damages, as well as their assessment by the court and their legal assessment. The purpose of assessment of damages incurred by the creditor is that of reinstating the creditor to the situation in which it would have been found, if the debtor had voluntarily performed the obligations assumed by concluding the contract. Judicial assessment of damages is made by judgment and involves the judge’s examination of all the conditions for undertaking contractual liability, particularly with regard to the prejudice caused to the creditor by the debtor’s non-performance of obligations. Legal assessment of damages occurs in the cases regulated by Articles 1535 and 1536 of the new Civil Code and falls within the scope of obligations that have as object the service of granting a sum of money, to which the legislator also adds the case of obligations to do, which can be assessed in money.
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The higher interest of the child is the only finality of the actions of parents and the only criterion that justifies the intervention of the State in the relations between parents and children. In the new Civil Code the main concern of the Romanian legislator is to detension the relationships between spouses and their minor children, recognizing that the higher interest of the children is, first of all, that of being affected to the smallest extent by the effects of the parents’ divorce, thus allowing both divorced spouses to exercise their parental authority. By reference to the previous regulation – the Family Code, it is a radically different vision, „a true revolution in the field”, „a modern solution” according to which, after the divorce, the parental authority is not split up between the parents, but they exercise it together, as recommended by Article 18 paragraph 1 of the Convention on the Rights of the Child. The new Civil Code has established the principle of shared parental authority in order to allow the parents to continue to be, despite their separation, partners in a proactive and effective manner in all important decisions relative to the health, education, training and recreation of their common children, a principle that becomes thus an ideal to be achieved. This study analyzes these aspects.
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This article intends to analyze the provisions of the Civil Code regulating the legal status of nullities of marriage. After a brief introduction, in which general aspects of nullities of marriage are presented, follows a discussion on the legal regime of absolute nullity of marriage and the legal status of relative nullity of marriage from the point of view of those persons who can invoke the absolute or relative nullity, of the imprescriptibility of the right of action for establishing the absolute nullity of marriage and of the prescriptibility of the right of action for annulment of marriage, as well as from the point of view of the possibility to cover the absolute or relative nullity.
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The new Criminal Code of Romania brings numerous novelties within the scope of incrimination in the Romanian criminal law and, as compared to the previous regulation, it provides, in the text of Article 276, the sanctioning of the deed of a person who, during ongoing judicial proceedings, makes false public statements concerning the commission, by the judge or by the criminal prosecution authorities, of an offence or a serious disciplinary misconduct related to the processing of that case, in order to influence or intimidate such authorities.
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The preliminary chamber is a new, partly innovative institution for the national criminal proceedings. In fact, this is a qualitative transformation of the provisions of Article 300 of the Criminal Procedure Code of 1968. The preliminary chamber judge is vested with a control form with a specific object and the finality of this control consists in ordering the file for the trial stage on the merits. The jurisdictional control of the preliminary chamber falls within the scope of the entire criminal proceedings as a distinct stage, with its own individualized object.
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The social reality governed by the labour law has known a series of mutations, caused by economic and circumstantial factors, which may have an impact on the object itself of this branch of law. This paper aims to present these amendments, as well as some theories formulated in the Romanian and foreign legal literature on the future of the labour law and of its object. It is pointed out the danger of dissolution of the labour law, following to be later configured a series of options concerning the extent of protection offered by the labour law and its relation to other branches of law.
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This study examines a series of controversies concerning the operation of the penal clause in certain special situations such as: admissibility of penalties running after the cancellation/resolution of contract if, by assumption, the debt had not been yet fully or partly liquidated by the debtor; the issue of the possibility of reducing the amount of „clearly excessive” penalties by the court, if these penalties are „clearly excessive” [Article 1541 (1) b) of the new Civil Code]; the admissibility of the plurality of various clauses that provide penalties and others.
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The interdiction of the pignorative contract is a traditional solution for the Romanian law and corresponds to a real need to protect the debtor. However, this study attempts to prove that the solution is presently in disagreement with the legislative policy established by the new private normative order that encourages the diversification of the guarantee mechanisms. Presently, the function of this prohibition would rather be a theoretical one, not to affect the classical physiognomy of mortgage in the continental law system; but, in a legislative system which expressly establishes legal figures such as the sale with repurchase option or the sale with reservation of title and which seems to allow lawful transfers as a security measure, the interdiction becomes formal and it excessively complicates the situation of the participants in the legal circuit.
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The author intends to make a synthesis of the main amendments brought by the legislator to the civil liability institution, by adopting the present Civil Code, also analyzing the main sources of inspiration underlying the new regulation. The chosen approach is a comparative one, the civil liability institution being analyzed both from the perspective of the Civil Code of 2009 and of the Civil Code of 1864. The study aims to emphasize that the new regulation is a codification of the doctrine and of the case-law, in a necessary attempt to adapt the Romanian legislation to the soft-law standards of the European Union in this matter, as well as to the other international regulations.
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The institution of appeal in the interest of law has the role of unitarily ensuring the interpretation and implementation of law by courts of law. The legal nature of this procedure is not determined only by the criminal and civil normative provisions governing it. This study argues that this institution is constitutional in nature because, under the Constitution, the High Court of Cassation and Justice has the power to ensure the unitary interpretation of law by the courts of law. There are analyzed the consequences of the constitutional nature of this institution, the limits of obligativity of the settlements of matters of law given by the High Court of Cassation and Justice by means of the decisions ruled in these proceedings, as well as the ratio between the decisions of the Constitutional Court and the decisions of the High Court of Cassation and Justice respectively, ruled for a solution on the appeals in the interest of law. Recent case-law of the Constitutional Court reveals new aspects regarding the possibility of verifying the constitutionality of decisions ruled on this matter.
