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The absolutisation of the effects of the case law of the Court of Justice of the European Union or of the provisions of the Charter of Fundamental Rights of the European Union in areas not falling within the exclusive jurisdiction of the European Union (EU or the Union) or in areas of shared jurisdiction where EU no longer wishes to legislate on the basis of the principles of subsidiarity or proportionality can lead to mistakes in the application of the national law by the law courts of the Member States of EU. In this article the author identifies such a case in the field of access to the data stored by the suppliers of public electronic communications networks and by the suppliers of publicly available electronic communication services and brings arguments to remedy this situation. -
Calea de atac a contestației poate fi exercitată, în condițiile art. 347 C.pr.pen., inclusiv atunci când niciun participant la procesul penal nu a formulat cereri sau ridicat excepții în procedura camerei preliminare. În acest scop, încheierea prin care judecătorul finalizează procedura de cameră preliminară trebuie comunicată participanților, eventuala omisiune putând fi revelată inclusiv în calea de atac a apelului, cu consecința regresării procedurii din faza judecății în faza camerei preliminare (cu notă aprobativă).
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In this study, the author has chosen to present and to analyze the offence of abandonment of family, provided in Article 378 (1) c) of the Criminal Code, because, with the stabilization of the judicial practice after the entry into force of the Criminal Code, it has been established a new outlook in respect of the approach of the constitutive elements of the offence and a clarification of the controversial aspects with regard to establishing the ill-intention of the offender.
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In this study, the author presents some aspects of the problems of proving with witnesses of the own assets, in the relations between spouses, over three periods of the legislative evolution in Romania: the period from 1 February 1954, when the Family Code entered into force, to 1 October 2011, when the new Civil Code entered into force; the period from the entry into force of the new Civil Code and 15 February 2013 (the date when the new Civil Procedure Code entered into force); the period that began on 15 February 2013, when the new Civil Procedure Code entered into force, a date since when the matter of proving the own assets in the relations between spouses is governed by the new Civil Code and by the new Civil Procedure Code. In this part of the study the author notes that Article 316 of the new Civil Procedure Code contains a wording likely to generate divergent case law concerning the proof with witnesses of the own assets in the relations between spouses. The author argues the opinion that, from 15 February 2013 as well, the proof of the own assets in the relations between spouses can be given by any means of evidence, including the proof with witnesses, which, however, in case of the opposition from one of the spouses, can not be relatives and in-laws in rank prohibited by law. In this context, the author makes a de lege ferenda proposal for the amendment of the content of Article 316 of the new Civil Procedure Code, in order to prevent the emergence of a non-unitary case law. The proposal is to replace the phrase and other family relations with the phrase and other similar family relations.
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The direct action is a means to settle debts, created in order to protect privileged creditors. Thus, such action must be expressly provided by law. With regard to the lease contracts, the new Civil Code brings a new element, regulating the right of the lessor to hold the sub-lessee liable for the payment of the rent or for the failure to enforce the contract. As the right conferred to the lessor represents a new element within the Romanian doctrine, there is a necessity to perform an extended study of the direct action derived of the lease contract. This study tackles a general analysis of the direct action of the lessor against the sub-lessee from the perspective of the new Civil Code. Furthermore, there are references within the text regarding the old stipulation in relation to the new one. Last but not least, there will be constant references to the French doctrine as well as to the de lege ferenda propositions for the amendment of the texts within the new Civil Code.
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By a thorough critical study of the provisions of the Law No 8/1996 on copyright and neighbouring rights, the author notes that this Law does not provide an explicit definition of the notion of „work” (of intellectual creation). That being so, in this study, after a legal and linguistic analysis, the author gives in advance his own and complete definition of the notion of „work” (of intellectual creation). The following are further examined: the categories of intellectual creations which do not constitute, however, „works” within the meaning of the Law No 8/1996 and, finally, the substantive conditions for the legal protection of „work” (of intellectual creation), concluding that, under the mentioned aspects, it is required the improvement of some wordings and regulations included in the mentioned law. Key words: work (of intellectual creation); legal regulation; definition of the notion; intellectual creations which do not constitute „works” within the meaning of the Romanian legislation; substantive conditions for the legal protection of the „work”.
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In this study the author gives an overview of the facts of unlawful fell down and theft of trees, of their incrimination as offences or contraventions, analyzing afterwards the incidence of the case law of the European Court of Human Rights in this matter, the study ending in some de lege ferenda proposals and best-practice proposals on problematic aspects in this matter.
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The offences provided 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 the two offences grouped within Article 2721. These offences have a few specific elements. First, the active subject in the legal rule hypothesis is qualified, namely a person that holds a certain quality of company member. Secondly, for two of the offences, the hypothesis of criminal rule must be supplemented by the rules of company law regulating the issue of company securities. By the fact that the hypotheses of the other offences regulated in Article 2721 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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In this case study, the authors analyze a less common situation in the judicial practice, namely the one of the confirmation of the judicial administrator, in so far as the judicial control court admits the appeal of the creditor that had requested by means of an application for summons the appointment of another insolvency practitioner. The institution of judicial control finds its legal basis in Article 129 of the Basic Law, according to which against the judgments, the parties concerned and the Public Ministry may exercise the legal remedies, under the terms of the law. The provisions of Article 501 of the new Civil Procedure Code give efficiency to the above-indicated constitutional text, given that, without the binding nature of the judgments pronounced by the judicial control court, the purpose of control and, finally, the well-grounded and legal settlement of the cases would not be achieved.
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The article analyzes the changes brought in the matter of approval of the application for enforcement. In the Civil Procedure Code of 1865, the enforcement court had jurisdiction over the approval of the application for enforcement. By the Law No 459/2006, this jurisdiction has been changed and the power to approve the application for enforcement has been recognized to the court executor. By the Decision of the Constitutional Court No 458/2009, this change was declared unconstitutional and it was restored the approval of the application for enforcement by the enforcement court. By the Law No 134/2010, that is the new Civil Procedure Code, it has been preserved the approval of the enforcement by the enforcement court, however, by the Law No 138/2014, it was restored the form declared unconstitutional. Therefore, we have considered as being predictable the admission of the plea of unconstitutionality of the provisions of Article 666 of the Civil Procedure Code, by the Decision of the Constitutional Court No 895/2015. Following the Decision of the Constitutional Court No 895/2015, it has been adopted the Government Emergency Ordinance No 1/2016, which reinstated to the jurisdiction of the enforcement court the approval of the enforcement applications. In our opinion, the legal and correct solution is the approval of the enforcement by the enforcement court.
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Declanșarea și judecarea unui proces atrag per se o serie de cheltuieli bănești care se materializează în taxele judiciare, onorariile avocaților, experților și ale altor specialiști, ori în sume de bani cuvenite martorilor chemați să răspundă în fața judecătorului, pe lângă multe alte inconveniente. Dacă sarcina înfăptuirii justiției aparține statului, principiu recunoscut în majoritatea sistemelor democratice, se pune problema sarcinii suportării cheltuielilor pe care le presupune judecarea unui litigiu. S-a ajuns astfel la „compromisul” prin care cheltuielile de judecată să fie împărțite, aproximativ proporțional, între stat și părțile litigante. Culpa procesuală este izvorul cheltuielilor de judecată, partea îndreptățită la acordarea acestora este partea litigantă, potrivnică celei care cade în pretenții și, pe cale de consecință, cea care a fost în culpă procesuală, prima fiind „victima” celei de-a doua. Ab initio trebuie precizat că stabilirea cheltuielilor de judecată va fi făcută de instanță numai în măsura în care acestea au fost solicitate în cursul procesului pendinte, faptul că instanța nu le-a acordat reprezentând o omisiune a acesteia, care poate fi îndreptată pe calea unei cereri de completare a hotărârii, dacă partea are deschisă această procedură. Probleme s-au ivit în legătură cu actualizarea cheltuielilor de judecată în faza de executare silită, când executorul judecătoresc proceda la punerea în executare a hotărârii judecătorești. Astfel, s-a născut întrebarea „Poate executorul judecătoresc să actualizeze sumele cuvenite creditorului cu titlu de cheltuieli judecătorești?” Înalta Curte de Casație și Justiție a limpezit problema de drept ridicată și a statuat că sumele acordate printr-o hotărâre judecătorească pot fi actualizate în funcție de rata inflației, de executorul judecătoresc în etapa executării silite (cu notă aprobativă).
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The problems of compulsory licences in the matter of patents has received a unitary regulation with the signing of the Agreement on Trade-Related Aspects of Intellectual Property Rights – TRIPS Agreement. Likewise, the Doha Declaration (Doha Declaration on the TRIPS Agreement and Public Health) is an important legal reference point because it clarifies a number of practical aspects relating to the compulsory licences in the matter of new medicines both in terms of the production for the domestic market and the import of such products. In the context of the sharp rise in the prices of new medicines, as well as of the constant pressure on the public health insurance budgets, the mechanism of compulsory licences may represent for the patients a new way of access to the new innovative medical therapies. This article discusses the international and European legal framework, with a special focus on the legal regime of compulsory licences in Romania. There are also examined the experiences of other countries in this field, the way of determining the remuneration due to the patent owner, as well as the usefulness of these practices for Romania.
