-
The purpose of the present analysis is to determine the applicable legal regime to certain procedural acts made in bad faith in relation to the abuse of rights theory, and the lis pendens (same trial pending in the same time before two or more panel of judges) and joined cases institutions. The analysis started from a particular case in which a claimant filed two statements of claim having the same object in two considerably distant moments (7 years between them) against the same defendant. The only aspects which the claimant drafted differently in the second case file, in order to eliminate risk of identity, were the claims’ phrasing and some additional arguments in his favour which were not inserted in a proper form in the first case file. Nevertheless, through the second statement of claim, the claimant himself raised the lis pendens exception, in order to send the second case file in front of the initial judge and thus to overcome his incapacity to invoke additional arguments in the first case file. The court vested with the judgment of the lis pendens exception stated that the exception is applicable and in the case at hand. Thus, it has sent the second file to be analyzed together with the initial statement of claim. In addition to this, the court fined the claimant for misconduct represented by filing intentionally the two statement of claims having the same object. In consequence, in the present article we have analyzed the conditions to be met in order to state the presence of an abuse of rights in the light of the lis pendens and joined cases institutions. We have identified the purpose for the regulation of these legal institutions and the similarities and differences between them. In addition to this, we addressed the conduct which the court should have in order to correctly analyze the two statements of claim which are object of the lis pendens exception. Finally, our theoretical conclusions related to the three institutions were applied to our particular case, in order to prove the presence of an abuse of right. -
The features that give a distinct note to European Union law, and even its specificity, in relation to national or international legal orders, whether universal or regional, par excellence lie in the immediate, direct and priority applicability of the rules that make it up. The concept of „priority” EU law in relation to the national law of the Member States is likely to complete the understanding of its specificity in relation to the situation which we encounter with reference to international law. The development and adoption of primary or secondary norms of European Union law represent true, intrinsic consequences of developments or, respectively, expectations recorded at EU level, either qualitatively or quantitatively. From such a perspective the steps we are witnessing, including those of legislative nature, must be known, understood, and accepted. Our approach considers the fundamental legal basis offered by the Romanian Constitution, republished version, but also relevant aspects found in the Civil Code, the Civil Procedure Code, Penal Code, and Criminal Procedure Code, to which we add the Insolvency Law.
-
Prin Sentința penală nr. 1 din 11 ianuarie 2016 a Judecătoriei Motru s-a hotărât, printre altele, schimbarea încadrării juridice a faptei pentru care inculpatul M.S. a fost trimis în judecată din fapta prevăzută de art. 42 alin. (1) lit. c) din Legea nr. 407/2006 în fapta prevăzută de art. 42 alin. (2) lit. c) din Legea nr. 407/2006 și fapta prevăzută de art. 342 alin. (1) C.pen., totul cu aplicarea art. 38 alin. (1) C.pen., în fapta prevăzută de art. 42 alin. (1) lit. c) – art. 42 alin. (2) lit. c) din Legea nr. 407/2006 și fapta prevăzută de art. 342 alin. (1) C.pen., cu aplicarea art. 38 alin. (1) C.pen., texte de lege în baza cărora inculpatul a fost condamnat. Ca stare de fapt s-a reținut că inculpatul, în noaptea zilei de 4/5 aprilie 2015, a efectuat acte de braconaj cinegetic pe raza fondului de vânătoare cu nr. 27 M, punctul „M.”, aparținând AVPS E, ce a avut ca finalitate uciderea prin împușcare a doi căpriori, cauzând un prejudiciu în valoare de 10.000 euro, fără a fi înscris în autorizația de vânătoare individuală sau colectivă eliberată în condițiile legii de gestionar, pentru fondul cinegetic respectiv. Dincolo de motivarea sibilinică a instanței în ceea ce privește schimbarea încadrării juridice a faptelor, sentința penală citată aduce în discuție aspecte ce țin de aplicarea cadrului legal în materie, dată fiind claritatea precară a actului normativ care reglementează infracțiunea de braconaj.
-
The probative force of the document under private signature derives from the signature of the party or, as the case may be, of the parties. The signature of a document guarantees in full faith, until proved otherwise, the existence of the consent of the party that has signed it with regard to its content. In case of the document under private signature the presumption of authenticity will no longer operate. The person to whom it is opposed a document under private signature is obliged either to acknowledge, or to contest the writing or the signature, because, until it is voluntarily acknowledged or verified in court, one can not know whether the signature belongs or not to the person who appears in the document as signatory and whether or not he has knowledge of the content of the document. The document under private signature, acknowledged by the opposing party or considered by the law as acknowledged, makes proof between the parties until proved otherwise, including with regard to the mentions in the document which are directly related to the legal relation between the parties. On the other hand, the mentions in the document not related to the content of the legal relation between the parties can serve only as prima facie written evidence. The attitude of the party, to whom it is opposed a document under private signature, not to protest against the use of that document or not to give an opinion in one sense or the other, is presumed to be a tacit acknowledgment. In case the writing or the signature has been contested by the party or declared unknown by its heirs or successors in rights, the court will proceed to the verification of the document according to the provisions of Articles 301–303 of the Civil Procedure Code. However, if the party claims that the document has been forged after signing, by erasures, additions or corrections in its content, or that the document contains an intellectual forgery, the party in question will be able to denounce the document as false, by means of the procedure regulated by Articles 304–308 of the Civil Procedure Code. The document not signed by the parties or by one of the parties is not valid as instrumentum probationis, but the legal operation (negotium iuris) remains valid and can be proved by other means of evidence, if the written form is not required by law ad validitatem. Even the document not valid as document under private signature is worth as prima facie written evidence, if it is opposed to the party who wrote it. The documents under private signature (signed) for which the formality „plurality of copies” or, where appropriate, the formality „good and approved” has not been accomplished is always worth as prima facie written evidence. In the relations between professionals it is recognized the probative force of a document not signed, but commonly used in the exercise of the activity of an enterprise in order to establish a legal act, unless the law imposes the written form in order to prove the legal act itself. The date indicated in the document under private signature has the same probative value, in the relations between the parties, with the other mentions in the document. Against third parties, the date of the document under private signature, by itself, is not evidence. Only the certain date is opposable to third parties, a date obtained by one of the methods established in Article 278 of the Civil Procedure Code or by other means provided by law.
-
Legal liability is a relation established by law, by legal rule, between the author of the infringement of legal rule and the state, represented by the officials of the authority, which may be the courts, public servants or other officials of the public power. The contents of this relation is complex, being composed essentially of the right of the state, as a representative of society, to apply the sanctions provided by the legal rules to the persons which are in breach of the legal provisions and the obligation of those persons to be subject to legal penalties, in order to restore the legal order.
-
In this study, the author analyzes the change occurred with regard to the response to the statement of defence, by point 27 of the Law No 310/2018 amending and supplementing the Law No 134/2010 on the Civil Procedure Code, as well as for amending and supplementing other normative acts. In the old Civil Procedure Code this act of procedure was not regulated, but it was customary to submit a response to the statement of defence. The author presents how the act of procedure called the „response to the statement of defence” has been regulated, being introduced by the Law No 134/2010 on the Civil Procedure Code. Initially, in Article 201 (2) of the Civil Procedure Code, it was provided the obligativity of the applicant to submit the response to the statement of defence, after having communicated it. This obligation postponed the setting of the first trial term. The obligation to formulate a response to the statement of defence was also provided in Article 471 (6) of the Civil Procedure Code, for the settlement of the means of appeal, as well as in Article 490 (2) of the Civil Procedure Code, for the settlement of the extraordinary remedy of the review. As regards the appeal and the review, the provisions of the Civil Procedure Code have not entered into force, but it has been applied the intermediary regime regulated by Article XV (4), for the appeal, and Article XVII (3), for the review, of the Law No 2/2013 on some measures to relieve the courts, as well as to prepare for the implementation of the Law No 134/2010. By point 27 of the Law No 310/2018 the facultative character of the response to the statement of defence was enshrined. This amendment has also been extended to the case of settlement of the appeal and of the review. The author presents the arguments for which she considers that the legislator should have abandoned this procedural act, being sufficient to express the position of the applicant by way of the request for summons and of the defendant by way of statement of defence. The conclusions of the study are reflected in the opinion that the response to the statement of defence is not justified in the civil trial, creating an imbalance between the parties, the applicant being able to justify his claims both by the request for summons and by the response to the statement of defence, while the defendant has available only the statement of defence. Even if by abandoning the binding character of the response to the statement of defence, the fixing of the first term, respectively that for appeal and for review, takes place more quickly, the author proposes to fully abandon this act of procedure and considers that the legislator should have repealed the response to the statement of defence.
-
In the present study, the author gives us a general examination concerning the right to a fair trial and of the settlement of the case within an optimal and predictable time limit. The approach is carried out in accordance with the international and internal regulations, but also in consideration of the latest doctrinal and jurisprudential evolutions in the matter. The first part of the study is devoted to the fair trial, and the main ideas promoted in the context are related to the complex character of the subjective right proclaimed by Article 6 (1) of the European Convention on Human Rights. In the second part of the present approach there are presented the procedural meanings of the right to the settlement of the case in an optimal and predictable time limit. Likewise, some considerations have also been formulated on the legal contest concerning the delaying of the trial, a remedy deemed useful by the author, although the results involved by this institution can not be regarded as spectacular. The author also evokes the recent amendments to the new Civil Procedure Code, such as those concerning the suppression of the review filtering procedure and the possibility of extending the term for the motivation of the judgment no more than twice.
-
Continuous development of types of non-custodial sanctions as ways of combating crime, reducing the damage caused by it, avoiding the negative effects of deprivation of liberty, increasing the possibilities of executing these alternatives to the imprisonment and, last but not least, by reducing of detention costs have guided European Union Member States to create and introduce the most appropriate Community sanctions and measures to respond to these desires. The successful introduction of alternatives requires credibility, support of the public who must abandon the prejudice that a more relaxed criminal policy with less severe punishments encourages criminality, or that public humiliation or intrusive tracking of the persons undergoing penalties is permissible, and even necessary, to highlight the status by the offender. Equally, the successful introduction of alternatives1 depends on the judiciary that can not hesitate to make them available on a large scale whether is possible, but also on the involvement of many agencies (probation service, the bodies of the Ministry of the Interior, local authorities, etc.) to implement non-custodial sanctions.
-
În acest număr al revistei publicăm două interesante studii semnate de eruditul dascăl de drept civil Dimitrie Alexandresco în publicația „Curierul judiciar” din 28 mai 1900 și, respectiv, de profesorul Vintilă Dongoroz, în aceeași revistă, nr. 11/1942. În primul articol, profesorul Dimitrie Alexandresco abordează o temă de drept internațional privat, și anume efectele gestiunii de afaceri în situația în care aceasta este încheiată pentru a-și produce efectele într-o altă țară decât cea de care aparțin părțile. Profesorul Alexandresco răspunde la întrebarea: „Care este legea după care se vor aprecia condițiile intrinseci de validitate și efectele acestui cvasi-contract?”. În al doilea articol, profesorul Vintilă Dongoroz prezintă o problemă de drept procesual penal referitoare la cererea de strămutare pentru legitimă suspiciune a unei cauze penale aflate în faza de cercetare la judecătorul de instrucție.
-
În acest număr al revistei publicăm două interesante studii semnate de eruditul dascăl de drept civil Dimitrie Alexandresco în publicația „Curierul judiciar” din 28 mai 1900 și, respectiv, de profesorul Vintilă Dongoroz, în aceeași revistă, nr. 11/1942. În primul articol, profesorul Dimitrie Alexandresco abordează o temă de drept internațional privat, și anume efectele gestiunii de afaceri în situația în care aceasta este încheiată pentru a-și produce efectele într-o altă țară decât cea de care aparțin părțile. Profesorul Alexandresco răspunde la întrebarea: „Care este legea după care se vor aprecia condițiile intrinseci de validitate și efectele acestui cvasi-contract?”. În al doilea articol, profesorul Vintilă Dongoroz prezintă o problemă de drept procesual penal referitoare la cererea de strămutare pentru legitimă suspiciune a unei cauze penale aflate în faza de cercetare la judecătorul de instrucție.
-
The doctrine of the state of law springs from the German theory and case law, but at present it is also a requirement and a reality of the constitutional democracy in the contemporary society. At present, the state of law is no longer merely a doctrine, but a fundamental principle of democracy enshrined in the Constitution and in international political and legal documents. In essence, the concept of the state of law is based on the supremacy of law in general and of the Constitution in particular. Essential to the contemporary realities of the state of law are the following fundamental elements: the moderation of the exercise of state power in relation to the law, the consecration, guarantee and respect for the constitutional human rights especially by the state power, and last but not least, the independence and impartiality of justice. In this study we are analyzing the most important elements and features of the state of law with reference to the contemporary realities in Romania. An important aspect of the analysis relates to the separation, balance and collaboration of the state powers, in relation to constitutional provisions. The most significant aspects of the case law of the Constitutional Court regarding the state of law are analyzed.
-
The authors appreciate that the Constitutional Court Decision No 874/2018 is welcomed in the Romanian legal landscape. To the same measure, the authors reiterate criticism to the decision of the High Court of Cassation and Justice No 52/2018 for a prior ruling on the interpretation and application Article 27 of the Civil Procedure Code, by reference to Article 147 (4) of the Constitution of Romania and Article 31 (1) and (3) of the Law No 47/1992 on the organization and functioning of the Constitutional Court, republished, texts which establish the effects of a decision of the Constitutional Court.
