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Instanþa de apel a fost învestitã cu o cerere în pretenþii ºi în constatare generatã de executarea contractului de vânzare-cumpãrare acþiuni pe care pãrþile l-au încheiat la 26 septembrie 2003 prin care se solicitã în concret: 1) obligarea la penalitãþi calculate conform art. 12.10 ºi datorate ca urmare a neîndeplinirii prevederilor clauzei nr. 12.3 din contract; 2) penalitãþi calculate conform clauzei 12.8 ºi datorate ca urmare a îndeplinirii cu întârziere a prevederilor art. 12.7 din contract pentru primii trei ani investiþionali; -
Au fost analizate mai multe situaþii în care pedepsele aplicate inculpaþilor trebuiau sã fie descontopite în individualitatea lor pentru fapte concurente ºi apoi aplicarea procedeului judiciar de contopire din nou a acestora cu pedeapsa ce se aplicã în cauza dedusã judecãþii, potrivit dispoziþiilor art. 36 alin. (1) C.pen. Contopirea din nou a pedepselor se referã atât la pedepse integrale aplicate, cât ºi la fracþiunile acestora rãmase neexecutate, ceea ce poate conduce la revocarea ºi contopirea unor resturi de pedeapsã care au mai fost revocate ºi contopite în noua pedeapsã (cu notã criticã).
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The principle of equality of arms is a jurisprudential principle of the European Court of Human Rights and is an integral part of the right to a fair trial enshrined in the (European) Convention for the Protection of Human Rights and Fundamental Freedoms. Within this article, the author set herself to undertake an analysis of the evolution of this principle, both in terms of jurisprudence and legal point of view.
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In this study, the author comments on a Resolution passed in 2010 by the High Court of Cassation and Justice (Joint Sections), issued following an appeal promoted in the interest of the law and argues that, in contravention law, the principle of nulla poena sine lege is fully justified, both in general, and when the alternative sentencing for the main penalty of fine is performing community service.
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The mitigation case provided by Article 3201 Code of Criminal Procedure may coexist with the mitigating circumstance under Article 74 par. (1) point c) Criminal Code, whereas the two mitigating circumstances are different in content (especially in terms of intensity of the readiness of the defendant to cooperate with legal authorities) and different functions (under Article 3201 Code of Criminal Procedure it is rewarded the defendant’s readiness to accept a short and summary procedure resulting in reducing the trial’s duration, whereas under Article 74 par. (1) point c) Criminal Code honesty is rewarded). Therefore, there can not be the case of taking advantage twice of the same mitigating circumstance. If there should be agreed upon the idea that the retention of Article 3201 Code of Criminal Procedure prevents retention of Article 74 par. (1) point c) Criminal Code, then the defendant may prefer not to invoke Article 3201 Code of Criminal Procedure in order to capitalize on the more generous mitigating effects of Article 74 par. (1) point c) Criminal Code.
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The article analyzes the regulation of trial when admitting guilt and the practical consequences resulting from this procedure. Admission of guilt can be made either by statement of the defendant in court, or under writ, in which case the proceedings may take place without the presence of the defendant. In terms of object of admission, out of the marginal terms of wording under Article 3201 Code of Criminal Procedure Code, it appears that it refers to “guilt”, but from the reading of paragraph (1) of the said wording it appears that admission refers to “committing acts written down in the document instituting the proceedings”. Should we relate this regulatory text to the provisions of Article 263 par. (1) Code of Criminal Procedure, regulating the indictment contents, it is clear that admission is limited to committing the crime exclusively, failing to refer to the legal classification granted under the document instituting the proceedings or any other person to which it relates. Article 3201 in the Code of Criminal Procedure is, as evidenced by the mere reading of its wording, of its marginal name and the topography of the Code of Criminal Procedure, undeniably, a procedural rule designed to accelerate the settlement process and not a rule of substantive criminal law. Bearing this legal nature, the authors argue that Article 3201 Code of Criminal Procedure can not be considered a more favourable criminal law (mitior lex), its provisions falling outside Articles 13-15 Criminal Code.
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Article hereby deals with the legal effects of Decision No. 573/2011 of the Constitutional Court on the plea of unconstitutionality of the provisions of Article 74¹ of the Criminal Code, focusing on its consequences in terms of reinforcing provisions of Article 10 of Law No. 241/2005 on preventing and combating tax evasion, as subsequently amended and supplemented.
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In this study the author develops and substantiates the thesis according to which under reign of King Carol I (1866-1914), despite the clear purports of the Romanian Constitution of 1866 (inspired by the Belgian Constitution of 1831), in reality, illa tempore, there was no real democracy in Romania, a real representative government, but political and constitutional life was dominated, de facto, by moderate monarchical authoritarianism of King Carol I, King who was concerned to impose a personal direction in domestic and foreign policy of the country, with the view to render functional mechanisms of the young Romanian state, and that even at the expense of sacrificing real democracy and the parliamentary regime, proclaimed by the Romanian Constitution of 1866.
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In the study with the above title, the author reviews a recent amendment (under Law no. 202/2010) to Article 153 par. (1) of the current (Romanian) Code of Civil Procedure, which by its wording gives rise among practitioners to a controversy, namely: whether or not the legal entity is presumed to have been or not notified on the term (with the consequence of failure of its summoning on subsequent terms) where the summons was not personally received by the summoned person or a representative (legal or conventional) thereof, but by an employee thereof failing to act in the capacity as its representative. The author judges that non-receipt of summons personally by the summoned person or by his representative, but by another employee of the legal entity shall not denote to have been notified for all subsequent terms.
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The author, undertaking an analysis of legal EU regulations in relation to occupational pensions, concludes that the statements under Ruling no. 873/2010 of the Constitutional Court of Romania (only in terms of constitutionality of Law no. 119/2010 with reference to the conversion of public military pensions in “common law” pensions, within the meaning of Law no. 19/2000) are erroneous; consequently, the aforementioned conversion itself, set forth under Law no. 119/ 2010, is unconstitutional, in breaching relevant European law.
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In the study hereby the author approaches a controversial topic among experts, namely whether granting loans / lending between companies (other than credit institutions – banks, etc.) is legally permissible or not. Analyzing both affirmative and negative statements, the author finally argues that the granting of loans / credits between companies (other than credit institutions) is legally possible, provided such activity occurs transiently.
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Availability and predictability of law – essential attributes of quality thereof – are and will certainly be some of the most common grounds for the conventional and constitutional control, not only because these legal requirements stand for fundamental premises of regulating and self-regulating social behaviour in a democratic society, but also because, inevitably, legal regulation always maintains a paradox, apparently insoluble: “the generality of the law” and its “accuracy”. Case law of the European court and the Romanian constitutional litigation court on the availability and predictability of the law is already sufficiently relevant to justify at least a synthetic outline in this area. This is what we attempt to do hereinafter.
