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Taking into consideration the provisions of art. 1385, paragraph 4 of the new Romanian Civil Code (adopted and published in 2009, but not yet effective), according to which “if the illicit action caused the loss of the opportunity to gain an advantage, the remedy shall be proportional to the probability of gaining such advantage, by also taking into consideration the circumstances and the actual situation of the victim, and by considering the rich French case law in the field (in the matter of medical liability) the author believes that, in Romania, tort liability could exist even at present (in particular in case of malpractice, as regards medical liability) following the damage caused by losing the opportunity to gain an advantage. For this reason, the author presents in detail the compensation conditions for such damage. -
Law no. 230/2007 on the establishment, organization and functioning of the owners’ associations, stipulates in art. 15: “Subject to a 5-day notice, the owner is obliged to accept the access to its apartment or to its space of a representative of the association, when it is necessary to inspect, repair or replace elements in joint ownership, which can be accessed only from the given apartment or space. Emergency situations, when access is possible without notice, shall be exempted”. In the above study, the author initially examines this text in relation to art. 27 of the Constitution of Romania regarding the inviolability of the home. Further on, he examines the requirements imposed by the same text for its legal enforcement; the situations in which the owner’s refusal to allow access – although the legal requirements are met – is an abuse of right and, in the end, other legal possibilities for the association dealing with the owner’s unjustified refusal to allow access.
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Dealing with the issue of the Romanian judge, as a guarantor of the public international law enforcement, the author discusses: the issue of the Romanian judge’s power to interpret the conventional international law; issues regarding difficulties in the enforcement of the public international law by the Romanian courts due to the absence of similar internal rules; decisions of the international courts of justice and their effects on the internal legal proceedings (Romanian).
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The author examines the deviated offence in the broader framework of the real and not apparent plurality of offences. The author considers, contrary to the opinion expressed by the other Romanian authors, that for both its main forms – error in personam and aberratio ictus – the correct solution should be that of the concurrence of offences (an attempted offence in the representation of the perpetrator and an offence committed by fault) if in relation to the circumstances of the case, the defendant could and should have foreseen the actual result.
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In this article, the author asserts with scientific and text arguments that, anytime art. 911 of the Criminal Procedure Code is interpreted as allowing the wire tapping or recording of calls or communications outside the criminal trial (namely without even starting in rem the criminal prosecution in rem), namely in the stage of preliminary acts, this is unconstitutional.
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In case the criminal prosecution is carried out by the hierarchically higher prosecutor’s office in the matter in which the preventive detention action is requested, according to art. 45, paragraph 1 with reference to art. 33-36 of the Criminal Procedure Code, when deciding the material jurisdiction for solving such a proposal, according to art. 1491 paragraph 2 of the Criminal Procedure Code, the judge takes into consideration the whole criminal matter, namely all the facts and persons investigated in the criminal case in which the prosecutor makes such a proposal and the legal qualification of all these facts established by the prosecutor and valid as at the date of notifying the judge, and not by taking into consideration only the action (and the legal qualification established for such action) or the person in relation to which the proposal for taking such action was submitted.
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The evolution of the Romanian society in the direction of consolidating the rule of law is accompanied, in some cases, by the amplification of negative phenomena, materialized in the increase in the number of persons committing antisocial actions and evading criminal liability, which requires the taking of actions directly aimed at these categories of persons who can continue to commit crimes, some of them of extreme violence. At present, together with the adoption of the Government Emergency Ordinance no.60/2006 for amending and supplementing the Criminal Procedure Code, the national legislative framework regulating the procedure of starting criminal prosecution is in compliance with the European legal norms and meets the standards imposed by the European Union. The powers provided by the legislation are able to meet the requirements in this field and, at the same time, to support the efforts made by the judiciary police bodies specialized in the activity of investigating and tracking down persons evading the enforcement of judgments, whose ultimate purpose is the achievement of justice.
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Recently, the National Council for Solving Complaints has dealt with numerous complaints against the acts adopted by various companies, which do not have the capacity of contracting authorities, but are beneficiaries of public funds for carrying out certain projects of public interest, companies that, under the financing contracts concluded with the financing bodies, are required to perform the purchases necessary for carrying out the projects according to the Government Emergency Ordinance no. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services concession contracts. This article presents, in a comparative manner, the solutions provided for various complaints and the arguments they are based on, from the recent practice of the Council and the control courts, some of the given solutions and arguments exceeding the limit established by legal norms, in the opinion of the author commenting on them.
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Taking into consideration the fact that the coverage of the World Trade Organization has been expanded to the field of services as well, in this study, the author examines litigations in the matter of services, which can be resolved by the mentioned Organization, with the observation that only countries or, as the case may be, the European Union, can be “parties” in such litigations. The implementation of the General Agreement on Trade in Services (GATS) between the countries is conditioned by the “influence” on the international trade in services by various actions taken by the Member States; in this respect, in the practice of GATS implementation, the notion of “influence” is understood extensively.
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Special procedures are rules derogatory from the common rules governing the criminal trial. They are also of a supplemental type and strict enforcement when a certain procedural aspect is regulated differently than the common rules. However, their purpose is the same, namely the resolution of the criminal and civil action, when required. Among these procedures, the agreement for acknowledgement of guilt is a transaction concluded between the prosecutor, as a representative of the state, and the defendant. The agreement for acknowledgement of guilt must meet certain requirements of substance and form. The court solutions in case of examining the agreement for acknowledgement of guilt can be of accepting the agreement for acknowledgement of guilt and admitting the factual basis of the offence for which the defendant acknowledges his/her guilt and of not accepting the agreement for acknowledgement of guilt. In the first situation, the judgment can be appealed only for procedural errors and the amount of punishment and, in the second situation, the prosecutor may file and appeal within 24 hours or, if not, the court orders the judgment of the case according to the usual procedure.
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The offence of abuse of social goods is one of the most frequent offences regarding companies. The incrimination of this action has the purpose of protecting the company against their managers’ temptation to consider it their own property and/or abuse of its goods or credit against the company’s interest. The offence that the authors examine can have as material object the goods, the credit and the authority. The offence may also refer to the company’s credibility, namely “the company’s commercial reputation, born out of the good operation of the company, its capital, its volume and the nature of its business”. Using the credit in a negative interest means exposing the company to a risk it should not be exposed to, even if the risk is not achieved.
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In this study, the authors intend to examine the institution of international liability, dealing with the issue of the constitutive elements of international liability. In the general international law, liability is a relationship created exclusively between two or several international law subjects. The international liability of a state can only be raised by another international law subject whose international right was infringed. If a state suffers a direct damage (immediate), it can approach the liable state directly in order to obtain the repair. On the contrary, the damage suffered by an individual following the infringement of the international right shall not provide the victim with the right to obtain recovery of damages before the international courts. A state shall only be liable internationally if it is the author of an international tort. There is a tort of the state when: a) a behavior consisting of an action or omission can be assigned (attributed), in compliance with the international law, to the state; b) this behavior represents an infringement of an international obligation of the state. The international doctrine generally acknowledges that the occurrence of these two elements generates the international liability of the state.
