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The cessation of the natural person’s existence shall result in a series of consequences, such as the succession law, the personality rights, and the natural person’s respect and subsequent to his/her death and so on. This study examines the cessation of the natural person’s existence and its consequences, in the light of the provisions of the applicable Romanian Civil Code (Law no. 287/2009, as republished on 15 July 2011 and come into force on the 1st October 2011), pointing out the new regulations in the matter, as compared to the previous laws (into force until the 1st October 2011). -
This study analyzes a series of correlations between the current Civil Code (entered into force on October 1, 2011) and the legislation relating to intellectual creation (works, related creations thereof, databases, inventions, industrial drawings or models, trademarks and geographical indications). In this respect, following a series of considerations concerning the legal terminology in this field, the paper discusses the patrimonial intellectual property rights on the works and trademarks that each of the spouses registered, as well as on scientific or literary manuscripts, drawings, art and invention projects and other similar property, as well as on the revenues due under an intellectual property right. Finally, it draws some considerations related to private international law matters on the legal protection of intellectual creation.
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Brokerage is an activity which plays an important role in the economy and is exercised in various areas thereof, such as trade, insurance, transport, etc. Despite the importance of this activity and the large number of brokered legal relationships, the first brokerage contract regulation is found in the Civil Code (Law no. 287/2009) which entered into force on October 1, 2011. The brokers are professionals and their goal is to bring together other natural or legal persons to conclude certain contracts specific to the economic sector they operate in. Brokers are third parties to the agreement between the two parties brought into relationship and have only the right to receive the established remuneration as far as the brokered agreement is concluded. In terms of the right to remuneration, the fulfillment of the obligations undertaken by the parties in the brokered contract is irrelevant.
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The entry into force of the Civil Code leads to significant changes in the existence and manifestation of the right of first refusal, by explicitly enshrining the right of legal first refusal, and the right of conventional first refusal, on one hand and secondly by extending the scope. The emergence of new regulations requires consultation of French regulations, doctrine and practice in these matters so as to achieve an overall understanding of the concept, its functionality and role, and also an analysis of the effects of these provisions on the doctrine and domestic practice.
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This paper aims to examine the issue of renunciation of inheritance, valence of the right of succession option in every aspect that it involves, to reveal the novelties brought by Law.287/2009 on this matter, and to assess on the usefulness and timeliness thereof.
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The author carries out a detailed analysis of the legal content of the insurance fraud offense, as provided for in Art.245 of the new Criminal Code as an assimilated and aggravated version of the deception offense. Regarding the structure of this offense, the criminal protection object, the subjects, the objective and subjective side, the forms, procedures and sanctions provided by law are reviewed in detail. The explanations discuss the insurance deception links to other offences relating to insurance and certain procedural aspects. The preceding legislation of this indictment rule, the solutions to be followed in case of transitional situations and some elements of comparative law are subsequently presented. Also, the author does not hesitate to state his point of view with regard to the constituent content of this criminal act, its systematization, its character and to frame in this regard certain solutions and certain ideas of his own. In the end, this analysis gives several conclusions and proposals of future law to determine an appropriate protection of the values „and social relationships covered by this indictment, a uniform implementation of the text and thus a better criminal justice administration in Romania.
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The author examines the concept of „seniority in magistracy according to the applicable laws (Law no.303/2004 regarding the statute of judges and prosecutors) by referring to the broader concepts of seniority at work, respectively, seniority in a specialty.
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In Romania, Article 5 paragraph 1 of Government Decision no. 250/1992 (which usually applies only to the personnel budget units) provides that employees who missed work because they were on sick leave throughout the calendar year are not entitled to the holiday leave corresponding to that year. We emphasize that this (exceptional) provision is not found in the (Romanian) Labour Code (Law no. 53/2003, republished on May 18, 2011). On the other hand, Article 7 paragraph 1 of the Directive 2003/88/EC of the European Parliament and of the Council provides for the right to annual leave of any employee, without exception, as the case law of the European Court of Justice states that this is a principle of European social law. So being, the author concludes that Art. 5 paragraph 1 of Government Decision no. 250/1992 can no longer be applied (to the budgetary personnel); however, through an interpretation consistent with the Directive, the employees who are not part of the budgetary personnel due to the direct effect of the European norm (Directive 2003/88/EC) benefit from the provisions thereof, even if the directive has not yet been transposed into Romanian legislation, especially as, in terms of this discussion, is not contrary to the Romanian Labour Code.
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In this study, the author analyzes the scope of Regulation (EC) no. 593/ 2008 of the European Parliament and of the Council on the law applicable to contractual obligations (also called “Rome I”) in individual contracts of employment having an extraneity element, taking into account that the provisions of this regulation are mandatory applicable in Romania, with a view to Art. 148 paragraph 2 of the Constitution and Art. 2640 of the Romanian Civil Code (Law no. 287/2009 republished).
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Analyzing the jurisprudence of the past three decades whereas tort law is concerned, one can easily find some gray areas, where the doctrinal principles developed so far seem to have fallen behind the realities of our modern society. Such a gray area is being analyzed by the author of this study, and it is attributed by modern doctrine to the jurisprudence applying the precautionary principle. Developed in the area of international public law, adapted to private law, and embraced by modern doctrine, the precautionary principle is a prominent figure in European legislation, as well as in our national laws, and lately also in court decisions.
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Administrative jurisdiction on public procurement is carried out by the National Council for Solving Complaints and finalized with the pronouncement of certain administrative and judicial acts, called decisions. These can be attacked by complaint to the courts of appeal, whose decisions are final. The 2010 amendment to the Government Emergency Ordinance no. 34/2006 on awarding public procurement contracts, public works and services concession contracts introduced the obligation of those who make complaints to pay legal fee in an amount which even now raises some questions. Alpha The practice of all courts of appeal in the country is to accept to charge the complaints with either 4 lei or 2 lei. Constanþa Court of Appeal chose to break away from this unwavering practice of the courts of appeal which it itself promoted until recently and to require claimants to pay a value charge according to the amounts provided for in Art. 28717 paragraph 1 of the Ordinance, namely between 0,01 lei and 1,100 lei, and not fixed amounts of 4 and 2 lei. This study enounces the two different solutions found in courts of appeal case law and the arguments that they are based on, whilst the author tries to generate thoughts on the issue of charging the complaints not only to those involved in the judicial process of settlement of the latter and the litigants, but also to the legislative body, with an eye to prompt and definitive clarification thereof.
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The tax return is generally regulated in the Fiscal Procedure Code, being the fundamental part for establishing tax liability. Both procedural matters and the capacity as a taxation decision assimilated act or a taxation base related act, as appropriate, gives it a distinct legal status, pointed out in this paper.
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Rapid expansion and diversification of international relations boost the improvement of public international law, by adopting new rules or by adapting the existing ones to the new relationships between states and other international entities, in order to protect the global legal order by preventing the acts of aggression or other events that may affect the safety of states, human rights, environment or other universally recognized values.
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In this study the author analyzes the requirements for the admissibility of provisional release under judicial control and provisional release on bail from the point of view of the Code of Criminal Procedure in force and the new Code of Criminal Procedure, the internal doctrine and the (European) Convention for the Protection of Human Rights and Fundamental Freedoms and the Supreme Court’s case law and practice of the European Court of Human Rights. The general conditions for ordering judicial control and judicial control on bail are also presented - preventive measures stipulated in the new Code of Criminal Procedure, which no longer provides for the institution of provisional release.
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In this study, the author examines the possibility of enforcing precautionary measures on the assets of third parties for the offense of money laundering; the analysis is carried out from the point of view of the doctrine, comparative law and the case law of the courts and the European Court of Human Rights. Alpha Having regard to the specificity of this offense and the special provisions in the field, the author considers that the goods of third parties, persons not subject to criminal prosecution or trial, must be frozen for special forfeiture.
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The success of the states global fight against illicit drug trafficking requires effective international cooperation in the judicial sphere. Controlled drug delivery method involves cooperation of several countries to identify, to land and hold liable in criminal terms the drug traffickers who carry out criminal activity or part of this activity in several states. Throughout the article, the author makes a critical examination of national legislation and judicial practice in the field of controlled drug delivery institution.
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The courts can contribute, within their competencies, to ensure supremacy of the Constitution; this also involves the ability to directly implement some of the constitutional regulations. In the context of the complex process of human rights internationalization, certain analysis and solutions concerning the relationship between the international and domestic human rights regulations and hence interpretations of the provisions covered by the Constitution on this issue appear more frequently within the case law. In this study the author analyzes the role of national judges in applying the (European) Convention for the Protection of Human Rights and Fundamental Freedoms under the legitimacy which is conferred upon them by the provisions of Art. 20 of the Constitution, republished; this analysis is based on case law matters on criminal appeal, governed by Art. 141 paragraph 1 of the Code of Criminal Procedure.
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The paper analyzes the European legislative act establishing the conditions of compensation to victims of violent crimes committed in another Member State than that of the victims residence. The research has led to the identification of some provisions which will cause some difficulties both in practice and in enunciation of scientifically critical observations. The study is useful for theorists and practitioners and also for the European legislator. The scientific contribution of this research is given by the critical remarks and future law proposals made in order to improve the complex activity to compensate the victims of all kinds of crimes, not just of violent crimes, as required by the legislative act in question.
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Dreptul larg de apreciere al autoritãţii administrative asupra punerii în executare a unor dispoziţii legale face ca neemiterea de cãtre respectiva autoritate a actului administrativ de punere în executare a dispoziţiilor de lege în cauzã sã nu constituie refuz nejustificat, în sensul art. 2 alin. (1) lit. i) din Legea nr. 554/2004. Este nelegalã, astfel, obligarea Guvernului României la emiterea unei hotãrâri prin care salariaţilor Societãţii Naţionale a Petrolului „Petrom” S.A. Bucureşti sã le fie vândute direct acţiuni ale acestei societãţi în limita a 8% din capitalul social în condiţiile art. 9 alin. (2) din anexa la O.U.G. nr. 49/1997 astfel cum a fost modificat prin art. V pct. 2 din O G. nr. 55/2003, având în vedere faptul cã prin acelaşi text legal legiuitorul a înţeles sã confere Guvernului un drept cu limite foarte largi de apreciere în ceea ce priveşte cota procentualã ce urmeazã a fi achiziţionatã de salariaţi şi momentele la care se va realiza achiziţionarea acţiunilor de cãtre aceştia.
