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This article presents the provisions of the new Civil Procedure Code whose entry into force has been postponed again, by a recent normative act. These provisions refer to: the investigation of the trial, the preliminary procedure before the appeal and recourse court, the judgments which can not be challenged by recourse and the composition of the panel of judges for pronouncing a preliminary judgment by the Supreme Court. In a criticizable manner, in the author’s opinion, the legislator has prorogued the entry into force of these provisions, initially for 1 January 2016, and then for 1 January 2017. The conclusion of the study is that the legislator should have allocated material and human resources necessary in order to create all the conditions for a full entry into force of the new Civil Procedure Code from the beginning (15 February 2013), not a partial one, being required successively (for the texts not entered into force ab initio) two postponements (1 January 2016 and then 1 January 2017). -
This study is devoted to some critical appreciations in connection with the use, in a relatively recent specialty paper, of some „practicist expressions” in order to designate the territorial jurisdiction of the court of first instance to settle the divorce applications („court of first instance having jurisdiction over the place of residence of the defendant”, „court of first instance having jurisdiction over the place of residence of the applicant” etc.). Likewise, our analysis also concerns the conclusions drawn within the same paper in connection with the concurrence between the territorial jurisdiction theses regulated by Article 3 (1) a) and those provided by letter b) of the Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
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The new Fiscal Procedure Code, approved by the Law No 207/2015, in force starting from 1 January 2016, through the transposition of some European acts into our domestic law, has brought significant mutations in matters of administrative and fiscal disputes as well. In the ambience of the new normative framework regulated by the Law No 207/2015 on the Fiscal Procedure Code, this study aims at analyzing a few aspects less regulated by the new normative framework and which could create controversies both in the application of the new normative framework by the public tax authorities and by the administrative disputes courts entrusted with the settlement of some litigations in matters of administrative and fiscal disputes. Starting from this desideratum, the study analyzes the categories of judgments pronounced by the administrative courts in matters of fiscal and administrative disputes, as well as the procedure for their enforcement, in relation to each category of judgments pronounced in this matter. There are also analyzed within this study the problems of suspension of the enforcement and of the contestation against enforcement in matters of administrative and fiscal disputes.
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In the new Criminal Procedure Code, the function for verification the sending to trial legality is conducted by a judicial body independent of the Court, the judge for preliminary chamber. In the preliminary chamber procedure, the judge checks the regularity of the referral, the legality of the administration of evidence and of prosecution acts, as well as the jurisdiction of the Court. The Criminal Procedure Code does not provide expressly the type of the act by which the Prosecutor can remedy the deficiencies of the referral. The jurisprudence is not unitary, sometimes recognizing, sometimes penalizing the remedy of the deficiencies of the indictment through different types of procedural acts. The article achieves analysis of doctrine with regard to this issue. The authors motivate the solution that preserves the unity of the sending to Court act, respectively the remake of the indictment. Consequences of the types of solutions adopted in practice are explored from the perspective of the right to defence of the accused person.
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This study is devoted to a very present topic, namely that of the liability of the State and of the magistrates for the judicial errors produced in the criminal cases or other type of cases. After a brief introduction to the subject, the author makes an analysis of comparative law in the matter subject to examination, pointing out that, in most European countries, the dominant system is that of establishing the liability of the State and of the magistrates for the judicial errors. The author also presents us some of the solutions of the common law system, where the principle is that of impunity of the magistrates for the judicial errors. The author emphasizes that, in our law, the liability of the State is the dominant one and it has the character of an objective liability, founded on the provisions of Article 52 (3) of the Romanian Constitution. There are also analyzed in this article the procedural conditions of the liability of the State for the judicial errors. A special place in this study is devoted to the liability of the magistrates, particularly of the judges, for the judicial errors. It is emphasized, in particular, the subsidiary nature of the liability of the magistrates, as well as the fact that their liability may be engaged only under the subjective conditions specifically determined by the law, respectively in the situations where they have acted in their judicial function in „bad faith” or with „obvious negligence”. The author pleads for maintaining this solution in the future as well, the only one that, in his opinion, is meant to achieve the necessary balance between the independence of the judge and the necessary social and legal responsibility. At the end of the study there are also formulated some legislative proposals, such as those relating to setting some common time limits in civil and criminal matters, to establishing the obligation of the State to exercise the action for regress, to the professional liability insurance of magistrates etc.
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In this article the author aims to analyze, from a constitutional point of view, the content of Article 21 of the Basic Law. The constitutionalization of free access to justice and the provisions of Article 21 located in the First Chapter of the Second Title of the Basic Law, along with other rules and principles that protect the man-citizen as the primer pin of the governance system and the holder of sovereign political power, as well as exclusive beneficiary, proves thereof the concern of the Constituent Assembly of 1991 in creating the necessary guarantees in regard with the defence of the human rights and liberties in accordance with the general principles of the constitutional democracy and the rule of law as established in the documents of universal human rights, ratified by Romania.
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Insolvency is a contemporary reality which has spread its branches in more and more areas of the law, but also of the society. With reference to the moment of onset of the economic crisis, in 2008, it can be noticed, from a statistical viewpoint, an increase of the number of companies against which the insolvency procedure has been opened, which are undergoing this procedure with its various stages, a fact which can change our outlook on the effective modalities by which they can continue to participate in the civil relations. In relation to these novelty elements, in this study it is discussed whether companies can continue to participate in commercial life, who will run the business, how will the commercial relations materialize into the sensitive matter of public procurement.
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The field „Public Health”, regulated by Article 168 of the Treaty on the Functioning of the European Union, is part of the category of fields of competence shared between the Member States and the Union. The decision to subsidize the price of medicines is the result of several factors: technical, financial and political. For this reason, the Union leaves the decision in this field to the discretion of the Member States but, pursuant to the principle of subsidiarity and proportionality, it tries to standardize certain procedural aspects, meant to ensure the free movement of goods and services. In this respect, it has been adopted Directive 89/105/EEC of the Council of 21 December 1988. In order to ensure a better transposition of this directive, in 2014, Romania has fundamentally changed the normative framework regulating the criteria and the procedures by which new medicines are assessed in order to be introduced on the List including the international common names for medicines for insured persons, with or without personal contribution, based on medical prescription, within the health social insurance system (list of subsidized medicines). For the first time it has been introduced the system of inclusion in the list of subsidized medicines conditioned by the conclusion of cost-volume/cost-volume-outcome type contracts. However, as we will further show, the current Romanian legislation in the field of subsidized medicines does not ensure an effective and integral transposition of the European directive, particularly with regard to the compliance with the imperative time limit for adopting the inclusion/non-inclusion decisions provided in Article 6 (1) of the Directive 89/105/EEC of the Council of 21 December 1988. This study deals with the limits of the current normative framework from a theoretical perspective confirmed by the relevant majority case law in the field.
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The offences regulated by the Law No 31/1990 on companies form a domain relatively little explored by the criminal law specialists and quasi-unexplored by the civil law specialists. This study deals with those offences grouped within Article 273. These offences have a few specific elements. First, the active subject of the legal rule hypothesis is qualified, namely a person that holds a certain quality of company member. Secondly, the hypothesis of criminal rule contains elements of company law, which can be found in other articles of the Law No 31/1990. By the fact that the hypotheses of the offences provided in Article 273 are part of the company law, first it is the duty of the civil law specialist to decode the meaning of the material rule, because a rigid application of the purely criminal vision in a field of the private law can lead to wrong conclusions, with serious consequences on the subjects of the offences. But, in order to cover the entire interpretative area, the same consideration must be given to the criminal aspects as well, where the role of the criminal law specialist steps in, so that the reader – either a civil law specialist or a criminal law specialist – forms a proper idea about a far too little investigated field.
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The regulation (Article 226) of the new Criminal Procedure Code has a corresponding regulation in the provisions of Article 1371 paragraph 1 and Article 1491 paragraphs 9–11 of the previous Criminal Procedure Code (1968), with an exception: the duration of the remand on custody will no longer be deducted from the duration of the preventive detention. The authors analyze the institution of admission of the proposal of preventive detention of the defendant during the criminal prosecution, by presenting some critical aspects and by proposing some improvements to the new regulation.
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The rule of exclusion remains one of the most controversial issues in the American constitutional doctrine in the field of criminal procedure. The American jurists constantly point out that the rule of exclusion is unique in the field of law, being specific to the American law. However, an increasing number of countries adopt in their legislative system provisions to exclude illegally obtained evidence. This study outlines a few remarks around Article 102 of the Criminal Procedure Code newly introduced in our legislation, trying to bring more clarity on the origin, purpose and ways to invoke the established principle.
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The conditions of appointment of the General Prosecutor and of his deputies have been one of the most disputed topics in the matter of regulation of the status of the Public Ministry. Wishing to give the parties concerned the opportunity to clarify the problem the authors have elaborated a summarizing study on the regulation of this matter in the Member States of the European Union.
