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Although the Paulian action is a legal mechanism, in principle very well known, when it comes to its practical application, in order to effectively promote such action, it is very important to have a thorough knowledge of the conditions that must be met for such action both to be promoted and to be allowed. This study is divided into two parts, in which first the general conditions and then the special conditions for the promotion of the Paulian action are presented. Also, in view of the legislative changes brought about by the entry into force of the new Romanian Civil Code, but also by amending the French Civil Code of 2016, we considered opportune a comparative presentation of the novelties brought by the two legal systems. -
The provisions of Article 169 of the Law No 85/2014 on the procedures for preventing insolvency and for insolvency regulate the responsibility aimed at covering the debtor’s liabilities in case its assets do not satisfy all the claims of its debtors. The mentioned legal provisions regulate expressly determined cases in which either the members of the supervisory bodies, or the members of the management bodies of the legal person which is in a state of insolvency or any other person that has caused the state of insolvency may be obliged to cover a part of the liabilities of the insolvent debtor, provided that the activity they carried out has led to the insufficiency of the available cash funds from the patrimony of the debtor legal person. In relation to the provisions of Article 171 of the mentioned normative act, the responsibility of the specified persons may be engaged in any form of the procedure, either in judicial reorganization, or in bankruptcy. In case of judicial reorganization, the amounts of money obtained as a result of the responsibility of the mentioned persons are intended to supplement the funds necessary for the continuation of the debtor’s activity, and, in case of bankruptcy, those amounts must ensure that the debtor’s liabilities are covered. The regulation of the responsibility of the members of the supervisory/management bodies or of any other person that has caused the state of insolvency of the debtor legal person is an integral part of the procedure provided by the law on insolvency.
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The stages of the civil trial are: (i) the stage of referral to the court of law (written or initiating the civil trial), (ii) the stage of inquiry of the trial, (iii) the stage of debate on the merits of the trial, (iv) the stage of deliberation and (v) the stage of delivery. The accomplishment of the act of justice in civil matters is materialized through court sittings (which may be public, or in which only the parties participate, or not public, in the cases provided by law) and internal administrative stages carried out by the panel of judges (such as the checking and regularisation of the application). Publicity is a fundamental principle of the civil trial stated by the provisions of Article 17 of the Civil Procedure Code and by Article 12 of the Law No 304/2004, republished. The failure to ensure the publicity of the court sitting brings about the sanction of absolute nullity not conditioned by the existence of an injury under Article 174 (2) by reference to Article 176 point 5 of the Civil Procedure Code. The delivery of the judgment shall usually take place in public sitting, according to Article 402 of the Civil Procedure Code, or, as an exception, by making the solution available to the parties through the mediation of the registry office, pursuant to Article 396 (2) of the same Code, in the assumption that the delivery was postponed (premise condition) for justified reasons and the chairman of the panel has indicated expressis verbis this modality of putting the solution at the disposal of the parties. The delivery of the judgment, as the last processual stage, according to the Civil Procedure Code, can not take place otherwise than by means of a public court sitting, according to the principle of publicity, to which the chairman or a member of the panel of judges read the minutes, also indicating the means of appeal which can be exercised. The fact that the parties understand or not to make use of their right to appear in court (as in the case of other processual stages) does not in any way affect the obligation of the panel of judges to comply with the express provisions of the law in respect of the processual stage of delivery, since there is no such distinction in the law, and ubi lex non distinguit nec non distinguere debemus. In addition, the completion of this final stage of the civil trial is necessary for the parties to make use of their right to formulate orally the means of appeal provided by law, according to Article 126 of the Internal rules of the courts of law of 2015, concluding in this respect a minutes signed by the president of the panel and by the registrar of the sitting.
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The application of ancillary intervention submitted in favour of the authority that has issued the individual administrative act is admissible in the actions in administrative disputes having as object the suspension of this type of acts, to the extent to which the third party intervening in a trial between the original parties is able to prove the practical benefit which he obtains as a consequence of pronouncing a solution favourable to the party in whose favour it intervenes. The necessity to prove that the condition of imminent damage is fulfilled by the applicant who considers himself injured, by the individual administrative act whose suspension is requested, does not confer this action a personal nature, in such a way as to be incompatible with the institution of ancillary intervention.
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Although at first sight the procedure of cancellation of documents, regulated by Article 5491 of the Criminal Procedure Code, seems to be an institution that should not create essential problems, we can see at a closer analysis that certain provisions of the criminal processual rule are at least questionable. Moreover, the aspects related to the unconstitutionality of the provisions regarding the active legal capacity of referral to the judge in this respect have been subject to the analysis of the Constitutional Court of Romania. The problems of interpretation may also persist on the object, on the procedure itself, on the competence to settle the referral or on the limits of investiture of the preliminary chamber judge. Under these circumstances, in this paper we intend to express a point of view in relation to these aspects. With regard to the object of the referral and the limits of investiture of the preliminary chamber judge, we will analyse whether the cancellation of documents, in this procedure, concerns only the main documents or the subsequent documents as well, and whether the act sought to be cancelled is regarded in the sense of instrumentum or negotiumiuris. Another problem that may arise within the settlement of the referral with regard to the cancellation of documents is represented by the settlement competence. In theory, this will pertain to the preliminary chamber judge of the court which would have the competence to examine the case on the merits, certainly, according to the pre-established criteria of the criminal processual rules. Under these circumstances, if there aren’t any discussions in relation to material competence, this being given by the juridical classification of the deed for which the dismissal of action, respectively by the abandonment of the criminal prosecution, has been ordered, with regard to personal competence, we will clarify some aspects. At the same time we will try to answer an apparently simple question, namely: is it legally possible to administer evidence during the settlement of such a referral?
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This paper appears as a response to the debate created by the new proposals to amend the criminal codes. I believe that a legal debate should start from the fundamental principles of law and be conducted academically, presenting legal arguments and also knowing the comparative law issues related to the topic debated. This is why this paper offers a historical, current and comparative perspective in terms of recognizing the right to silence to the person being heard as a witness in the criminal trial.
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The most controversial aspect in the criminal judicial practice, in the situation of invoking the plea of relative nullity of a criminal processual act, is to prove the existence of a processual injury and, related thereto, to prove the sufficient seriousness of the injury caused to the party or to the main processual subject which justifies the cancellation of the act. Most of the times, the party or the subject that invokes the nullity is put in the extremely difficult position to persuade the judicial body that processual injury is sufficiently serious to justify the drastic sanction of nullity. That is why we have considered that it is required a thorough assessment with regard to the standard of probation of injury, of proving the sufficient seriousness of the injury suffered in order to bring about the sanction of nullity. The conclusion we have reached is that the processual injury suffered is sufficient to bring about the sanction of nullity when the violation of the processual rights or guarantees of the parties or of the subjects puts them in the position to no longer be able to defend themselves with the same chance they would have defended themselves if their processual rights had not been infringed.
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Înscrierile în cartea funciară nu au caracter constitutiv/translativ, ci numai efecte de opozabilitate față de terți (art. 25 din Legea nr. 7/1996 arată că „înscrierile în cartea funciară își vor produce efecte de opozabilitate față de terți...”). Astfel, această lege asigură publicitatea imobilului și nu are efecte constitutive/translative ale dreptului de proprietate. (...)
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In this article the author analyzes the procedure of individual complaint of the citizens before the Federal Constitutional Court of Germany as it is regulated in the Federal Constitution and in the special law on the constitutional control court. The constitutional text provides that the procedure in question is a legal means of appeal with the purpose of defending human rights and fundamental freedoms. Specifically, any person who claims that one of his rights or one of his freedoms enshrined in the Basic Law has been violated by an authority exercising public power may address the federal constitutional court. The author analyzes the procedure of individual complaint and separates it from other constitutional procedures.
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In this article, the author presents the procedure of individual complaint of the persons before the Constitutional Court of the Republic of Turkey. According to the Turkish Constitution and to the Law No 6216/2011 on establishing the procedures before the Constitutional Court, this procedure is an exceptional means of appeal which can be used after all the other legal means of appeal have been exhausted. The individual complaint before the Constitutional Court fulfils two basic functions: the protection of the fundamental rights and freedoms of the persons and the protection of the national legal order.
