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In this study there are analyzed, in particular: – The influence of the European Court of Human Rights on the international movement of foreign judgments; – The enforcement of foreign judgments according to the new Romanian Civil Procedure Code; – The enforcement of judgments pronounced in a Member State of the European Union. -
In the current architecture of the Criminal Procedure Code, the regulation of the special methods of surveillance or investigation is based, from the perspective of the legislative technique, on a unified, foreseeable and predictable approach, eliminating the arbitrary. The special methods of surveillance or investigation are meant to contribute, by their results materialized in proofs, to proving in a direct manner the offences committed by the suspects or/and the defendants. The specificity and concrete particularities of the circumstances of some of the corruption offences, the offences assimilated to the corruption offences, as well as those of drug trafficking, trafficking in weapons, human trafficking, acts of terrorism, cybercrime, expressly enumerated within Article 139 (2) of the Criminal Procedure Code suppose that the probative includes, in a significant proportion, proofs obtained by way of special methods of surveillance or investigation.
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In this article, the authors examine the modality of conducting the procedure of replacement of the measure of preventive detention with the preventive measure of judicial control on bail, respectively if, according to the regulations of the Criminal Procedure Code, at the same time with the admission in principle the judge examines inclusively the grounds of such application or, on the contrary, it requires an initial examination strictly in terms of fulfilment of the formal conditions, finalised with the admission in principle and with fixing the quantum of the bail, and only in the second stage the examination of the application on its merits in terms of its rightfulness. Likewise, there are analyzed the legal remedies against the interlocutory judgment of admission in principle, respectively of the interlocutory judgment whereby the judge rules on the merits of the case. Finally, the authors present the contradictory solutions at the level of different courts of appeal and of the High Court of Cassation and Justice, analyzing inclusively the report drawn up by the supreme court, the Panel for the settlement of some points of law in criminal matters. Likewise, they formulate a series of de lege ferenda proposals, which aim to eliminate the contradictions between the different articles of the Criminal Procedure Code in this matter.
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The process of fighting against tax evasion has been and continues to be of particular importance for the Romanian legislator, due to the negative effects which this widespread phenomenon generates on the economic and social life, affecting the long-term development of a country faced with a fragile economy, still in transition. Despite the legislative developments of the last years, the normative framework in force continues to generate certain controversies, due to the different application and interpretation of the law, one of them being the modality to settle the civil action in the criminal trial, in case of tax evasion offences. Starting from the mentioned premise situation, the author of this study tries to provide an answer to one of the problems noticed in the process of interpretation and application of the law, related to the possibility of granting ancillary tax claims in the criminal trial. In this context, having regard to the legal framework in force, the author expresses his opinion on the impossibility to provide this kind of claims in the criminal trial, however expressing the opinion that the contrary solution, beneficial for the purpose pursued by the legislator, could form the object of legislative intervention, thereby providing a solid foundation for the solutions binding the author of the offence to pay the ancillary tax claims, even in a modality atypical to the tort civil liability, which serves as a model in the criminal trial.
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The offence committed during the fulfilment of the obligation loses its prohibitive character and thus re-enters the scope of licitness, becoming again compatible with the rule of law. This study examines thoroughly this notion not detailed in the new Criminal Code and intends to trace the outer limits to which this justificative cause is applicable, especially with reference to the categories exposed to such occupational hazards, such as the military, the police officers, the physicians and others.
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Within every form of legal liability, the act inconsistent with the legal rules for which liability is engaged is qualified expressly by law. This study aims to analyze comparatively the offence and the contravention, regarded in the light of recent legislative influences, appeared in the field of criminal law. In order to achieve this intended objective, the structure of the material elaborated by the author envisages the following sequence: the historical evolution of the offence and of the contravention; the definition of the offence and of the contravention; the system of punishments and the sanctioning regime; other aspects of the legal regime of the offence and of the contravention. The analysis covers the following: the stage of legislation, the point of view of the doctrine, as well as the case-law. Finally, there are presented the conclusions reached as a result of this approach and there are formulated de lege ferenda proposals.
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The article deals with the right of the pre-university teaching staff to the reimbursement of the equivalent value of the transportation from the domicile to the education unit, by private car, as well as with the possibility to grant in favour of the heirs, in the current regulation, the death aid due to them as a result of the death of the pre-university or university teaching staff.
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One of the situations in which the employer has the initiative to suspend the individual labour contract of the employee is the one regulated by Article 52 (1) a) of the Labour Code, i.e. during the preliminary disciplinary investigation. The employer may not exercise the right abusively conferred by the law, a fact which has been accepted both in doctrine and in case-law. In the absence of some clarifications within the content of the mentioned legal provision, some issues are raised in relation to the existence of a maximum duration of the disciplinary investigation and to the relevance in this regard of the period during which the decision to apply a disciplinary sanction may be issued, as well as in relation to the reasons likely to justify the decision to suspend the individual labour contract.
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This study analyzes a correlation between the Fiscal Procedure Code (the suspension of the extinctive prescriptions in tax matters) and a provision of the Civil Code (suspension of the extinctive prescription as long as the debtor deliberately conceals from the creditor the existence or the exigibility of the debt). The corroboration of these texts, implicitly imposed by the Criminal Procedure Code, raises a series of legal issues, which the author analyzes and, in her opinion, settles them as well.
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As the phrase „contractual balance” is too vague, for the purpose of clarifying its content, it has been used the notion of proportionality which is translated by a ratio between finality (purpose) and the means for achieving it. The proportionality, in its turn, does not consist in a mathematical relation, for this would mean ignoring the essence of the contract, namely the will of the contracting parties. So further specifications have been necessary in the sense that the proportionality is, at the same time, a measurement instrument and a sanction, namely a principle of fair-measure that puts into practice a finalised proportionality which relates to the legitimate objectives pursued or that should be pursued, which requires sometimes a strict proportionality, other times a relative proportionality, consisting in sanctioning only the obvious abuses. The proportionality contributes to the implementation of the principle of maintaining the durability and the efficiency of the contract, which favours the maintaining of the quality of the contract content, both at the time of its formation and for the duration of its performance, the sanction falling within the institution of lesion and, respectively, of unpredictability.
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In the absence of a meaning established by the legislator and in the presence of some modest doctrinary concerns, this study tends to be a contribution to the definition of „invention”, in general, and of „patentable invention”, in particular. Likewise, there are analyzed the „substantive conditions” for the patentability of the invention, the „elements” and the „scientific creations” which are not regarded as inventions, as well as the „unpatentable inventions”. In this context, there are also presented some situations where the provisions of the Regulation implementing the Law No 64/1991 on invention patents exceed the provisions of this Law and the legislative technique rules for elaborating the normative acts.
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In this article the author shows that justice is one of the pillars of the state of law, which ensures the implementation of the principle of the rule of law, the foundation on which this type of state is built and developed. Likewise, the author makes brief considerations on the notion of justice, as well as on its administration, especially on the independence of judges and on the impartiality of justice. The analysis takes into account both the European standard and the Romanian law in the matter.
