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According to the monist conception regarding the private law, the current Civil Code (Law no. 287/2009) inserted in the scope of its regulation the trade, including bank agreements – the current bank account, the bank deposit, the credit facility, the rental of safety deposit box for valuables. The specificity of the scope, mainly, „the publicity” and the reiterative nature of banking operations, left the essential, not only the technical aspects, within the scope of special regulations – prevalent, numerous and difficult to be codified. This study reveals the items set up by the current Civil Code regarding the typically bank agreements, the more so as no substantial right of them has existed until the adoption of this legislative instrument. -
The value competence in the criminal matter represents a form of material competence, whose non-observance is sanctioned by absolute nullity. In this article the author describes theoretical and practical aspects of competence depending on the value criterion and carries out a comparative examination between the current and the future criminal and criminal proceedings regulation of the phrase of „very serious consequences”. Likewise, the author identifies possible solutions to unify the judicial practice, considering that the requirement of the predictable nature of law and the principle of judicial equal treatment require the establishment of the competence depending on its value by reference to the time of occurrence of the material damage due to offence and to its real value.
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The minor traffic offence is one of the most serious offences, being included in the field of judicial cooperation in all European legislative instruments. The study describes a general and critical examination of the legal provisions into force which, according to the author, do not guarantee an adequate judicial protection to minor persons being the victims of the offence. By publishing it, the research of this very important field and at the same time in the pipeline at the level of the member states of the European Union, is continued. The research may be useful both to practitioners, and to ideologists in the field of criminal and criminal proceedings law. The essential contribution of the study is limited to the critical remarks exposed and to the concrete proposals on amending and supplementing the special law, especially from the point of view of the indictment of other offences or of establishing the obligation to provide defense to the minor person who is victim, under the sanction of absolute nullity.
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The judicial individualization of the sentence shall be carried out by a complex operation using all those individualization criteria set forth by law (general and special criteria); the need for taking into consideration all the grounds for sentence modification is included within these criteria, as well. Drawn by this need, the Romanian Criminal Code into force (since 1968) contains regulations regarding the manner in which the various grounds for sentence modification must be enforced, when they concur, regulations contained in the provisions of art. 80. Likewise, the new Romanian Criminal Code contains such regulations in art. 79. In this study, the authors have emphasized several systems of sentence determination in case of the concurrence between the grounds for sentence modification. Both the Criminal Code into force and the new Criminal Code adopted an objective criterion concerning the manner in which the various grounds for sentence modification must be enforced, being sensitive to multiple interpretations and contradictory solutions. The Romanian Criminal Code of 2004 – abrogated, before becoming effective, through the new Criminal Code – which forwarded a system based upon a subjective criterion, by granting the judge the freedom to assess the predominance (prevalence) of the grounds for sentence modification and to give them the due legal effect. From the point of view of the authors of the study, this system seems to be more adequate to settle the problems raised by the concurrence between the grounds for sentence modification.
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Law no. 287/2009 regarding the Civil Code introduces in the matter of successoral option many new items here and there, reconfiguring it. In this study, we propose to examine the general aspects that the successoral option involves in the light of the provisions of the new Civil Code, to highlight the new items brought by this legislative instrument in the matter subject to the examination et to assess their progressive nature.
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LEGEA NR. 10/2001. ACŢIUNE AVÂND CA OBIECT RESTITUIREA PREÞULUI IMOBILULUI PLÃTIT DE CHIRIAŞII ALE CÃROR CONTRACTE DE VÂNZARE-CUMPÃRARE, ÎNCHEIATE POTRIVIT PREVEDERILOR LEGII NR. 112/1995, AU FOST LIPSITE DE EFECTE JURIDICE Dispoziţiile art. 501 din Legea nr. 10/2001 modificatã prin Legea nr. 1/2009 nu fac decât sã aplice instituţia rãspunderii pentru evicţiune într-un domeniu particular, cel al imobilelor preluate abuziv de stat în perioada 6 martie 1945 – 22 decembrie 1989 şi înstrãinate de stat unor chiriaşi de bunã credinţã în baza Legii nr. 112/1995.
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Law no. 202/2010 on certain measures to accelerate lawsuits’ settlement introduces into the Criminal Code, by art. 741 of the Criminal Code, a series of provisions in favor of the charged person or of the defendant who has committed certain economic offences and covered the damage in full, until the settlement of the cause of action in the court of the first instance. The author considers that these provisions could be construed as certain legal and real attenuating circumstances, however having a special regime, which often generates difficulties related to the interpretation and enforcement in the courts’ practice. However deemed as unconstitutional in May 2011, the provisions of the above-mentioned article are being enforced regarding the offences committed until its expiry date, pursuant to mitior lex principle.
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At the crossroads of general regulations concerning both public and private property in the newly enacted Civil code, of specific rules concerning the concession of public assets or the exercise by the local public authorities of their powers relating to the administration of public and private domain of the administrative-territorial units as well as of even more specific provisions in the public-private partnership law, the legal regime of assets involved in public-private partnership projects requires detailed attention. Designing and understanding such legal structure combining old and new regulation may contribute to the sucessful application of regulations concerning public-private partnerships.
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In this study the author debates – in the light of the current Code of Civil Procedure and of the new Code of Civil Procedure, published in 2010, but not yet enacted, if in the actions regulated by Law no. 18/1991 (as republished) there must be or not be introduced, even ex officio, all the persons entitled to lodge the applications for the re-enactment of the ownership right over a certain given land fund.
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In this study, the author analyzes the essential changes that the year 2011 has brought with respect to the dismissal of the trade union leader under Law no. 40/2011 (amending and supplementing the Labour Code), and also under Law no. 62/2011 regarding social dialogue. At the end of the analysis, the author concludes that these changes are both in accordance with the Romanian Constitution, as well as with the applicable European regulations.
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As a result of the substance amendments brought to the Labor Code (Law no. 53/2003) according to Law no. 40/2011, followed in a short period of time, by the enactment of Law no. 62/2011 of social dialogue, certain contradictions were generated between the Labor Code (as republished on 18 May 2011) and Law no. 62/2011, generating a series of controversies in the Romanian judicial doctrine. Some of these controversies are reexamined by the author of this study who, after debating them, reaches certain interesting conclusions. -
The author considers that article 288 paragraph (1) of the National Education Law no. 1/2011 (text according to which the didactic activities exceeding a didactic workload are remunerated for each hour worked, and for the tenured didactic staff – in the higher education system – the maximum number of paid hours in the regime of payment per hour, no matter the educational establishment where the respective hours are worked, cannot exceed the minimum didactic workload) breaches the provisions of the Constitution of Romania, even though the Constitutional Court adjudicated otherwise under the decision no. 1090/2011. The basic argument forwarded by the author is that, in case of certain similar regulations contained in the contents of certain previous similar legislative instruments (Law no. 88/1993 and Law no. 128/1997), the same Constitutional Court, according to two decisions (no. 114/1994 and no. 30/1998) ruled otherwise than it had ruled in 2011 (that is, it stated that those decisions were unconstitutional).
