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The present study aims to examine the law principles issue based on principles of doctrinal realities under which there are principles of law, general principles of law and specific principles of various branches of law. The 1st Article of The New Civil Code is a challenge for us because this text introduces customary legal and legal doctrine among the classic sources of law. The legal doctrine is recognized by the Civil Code as a work of philosophical synthesis which it can be valued only by the jurisprudence. All in all the general principles of law- the rule of law, equity and justice, legitimacy and legal regulations- are applicable to all branches of law. -
The author briefly examines the issue of securities in the Romanian private law and she further presents the regulation of their administration according to the current Romanian Civil Code (Law no. 287/2009, republished on July 15th 2011), entered into force as at October 1st 2011.
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The interest loan is a form of the consumption loan, having as legal grounds, mainly, the provisions of the new Civil Code, art. 2167-2170. This agreement is presumed onerous, the borrower having the obligation to pay, in due time, an amount of money or other type of goods, as interest, representing the equivalent amount of using the borrowed capital. The legal regime of the agreement, including of the generating interest, in its diversity of types, forms the object of the analysis of this study, conducted both according to the common and special provisions of the new Civil Code and in the light of the special legislation, the Government Ordinance no. 13/2011.
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Within the study hereunder, the legal regime of joint ownership, in both its forms (common and temporary, respectively forced and perpetual) is analyzed, from a critical point of view, with special regard on the second type. The author analyzes the differences between the legal regime of these types of ownership established under the Civil Code (Law no. 287/2009, as republished) by comparison with the regulation of the Civil Code of 1864. The inconsistencies instituted under the new regulation, the illegitimate and unconstitutional nature of some of them, as well as the recent legislative amendments intervening in this respect are analyzed, all these being accompanied by examples extracted from the Romanian and foreign jurisprudence.
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New regulatory agency contract and the new regulatory liability, both contained in the new Civil Code, has some innovative features, such as to update the rules of private according to the needs of contemporary society. Legal provisions are yet perfectly, returning doctrine designed to further research in this area. Quality and consistency can be confirmed by jurisprudence equitable solution, thoroughly motivated, able to offer real victims a chance to repair the damage by restoring the previous situation.
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The author conducts a thorough analysis of the legal content regarding the crime of misappropriation of public tenders provided by art. 246 of the new Criminal Code, incrimination ex novo. With reference to the structure of this infringement, the object of criminal protection, the subjects, the objective and subjective aspect, the forms, modalities and sanctions provided by the law are examined in detail. Within the complementary explanations, the connections of the misappropriation of public tenders with other crimes and some procedural aspects are tackled with. Further, the legislative antecedents of this incrimination regulation, the solutions to be followed in case of occurrence of temporary situations and some elements of comparative law are presented. The author does not hesitate to express his opinion as regards the constitutional content of this criminal deed, its systematization and nature and to advance some of his own solutions and ideas related to this aspect. Towards the ending of this analysis several conclusions and proposals de lege ferenda are presented in order to determine an appropriate protection of the values and social relations concerned by this incrimination, an unitary enforcement of the text and implicitly a better performance of the criminal justice within Romania. -
In case of the minors aged between 14 and 18 years old, who are liable from the criminal point of view, the presumption according to which their judgment has not reached its maturation, but is in full process of development and stabilization is instituted. In view of these circumstances, minors under this category of age do not have the psycho-physical ability to fully become aware of the gravity of the perpetrated crimes and, especially, their injurious consequences on the social values protected by means of criminal regulations. Given this context, the author claims that the new Criminal Code excludes the possibility of enforcing punishments in case of under aged criminals and establishes a specific system of criminal penalties, entitled educational measures, classified into two categories: educational measures without deprivation of liberty and educational measures with deprivation of liberty.
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This study accurately describes some of the controversial aspects within the labour legislation: applicability, in terms of probation, of the regulations regarding the period of probation, concluding that art. 31 par. (3) of the Labour Code (termination of the employment agreement without notice and justification) is also effective in this case; decrease of working time from 5 business days to 4 business days per week in case of temporary reduction of activity, with the specification that the alteration of this program can only be operated if a minimum 30 business days reduction of activity has already occurred; the deadline by which the employer must enforce disciplinary sanctions, pointing out that the deadline of 30 days is computed as of the date the employer receives the disciplinary investigation report which qualifies the deed of the employee as disciplinary offence, while de deadline of 6 months is computed as of its time of perpetration; the parties to the collective negotiation at the unit level and the parties to the collective employment conflict at the same level, stating that, in case of such conflict, only the representative union or the employees’ representatives, as the case may be, can act as party on behalf of the employees and not the representative union federation which, under certain conditions, can participate in the collective negotiation; cumulative number of employment agreements with different employers, specifying that, basically, no definite and generally valid answer can be given, as the position of each employer within such agreements is fundamental (if accumulation is accepted and to what extent). In conclusion, the settlement by law of these controversial aspects is suggested.
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Since the new Romanian Civil Code entered into force (Law no. 287/2009, republished on July 15th 2011) on October 1st 2011, the author examines in which circumstances the new legislation regarding the divorce cases on the docket (in first instance or appeal) might or not apply as at the date of entry into force of the new law (October 1st 2011). The author concludes that in the field of family right, due to the absence of expressly contrary provisions within the Law no. 71/2011 concerning enactment of the new Civil Code, the processes and requests on the docket are governed only by the law in force at the date the action (summons) was advanced. Therefore, the new law cannot be enforced (in absence of an expressly contrary provision) for a case already on remedy (appeal, second appeal).
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In this study the author resumes an older discussion within the Romanian doctrine of civil law, insofar if and in the light of art. 885 of the current Civil Code (Law no. 287/2009, republished on July 15th 2011 and entered into force as at October 1st 2011), the registration in the land book has or has not constitutive or translative effect of rights, in case of real rights in immovables.
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This study examines the issue of the joint security of creditors over the debtor’s patrimony in the light of art. 2324 of the current Romanian Civil Code (Law no. 287/2009, republished on July 15th 2011 and entered into force as at October 1st 2011), with a special regard concerning the mentioned issue in case of establishment of patrimonies of affectation over the joint security of creditors.
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The study thus entitled draws the conclusion that the fiscal inspection report, as a deed preceding the issuance of the notice of assessment, cannot form the object of an action in the fiscal and administrative contentious neither severally nor jointly with the fiscal and administrative document, as erroneously resolved, in some occasions, by the Section of Administrative and Fiscal Contentious of the High Court of Cassation and Justice.
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While the judicial authorities have rigorous procedure codes, and the legislative authority has regulations for the development and adoption of laws, the public administration authorities in general and local government in particular „are still suffering in this respect”. To fill the „gap” that exists in some /partial sides of the administrative procedure, since the Administrative Procedure Code has not been yet adopted, in this study the authors intended (invoking the tangent jurisprudence) to contribute to the elucidation of the two cases (of many) in a segment in which positive law is quite vague, thus allowing an inconsistent practice, sometimes even arbitrary.
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The study aims to analyze, as indicated by the title itself, the controversies generated by the implementation of the institution known in practice as „simplified trial procedure in case of acknowledgement of guilt”. The analysis is structured in two sections. The first section analyzes the controversies, already debated by the Constitutional Court, regarding the possibility of enforcing the provisions of art. 3201 of the Code of criminal procedure in case of temporary situations (namely the defendants brought to trial under the ancient laws, but who have surpassed the procedural moment of commencement of forensic investigation) and the requirements necessary for the dismissal of the enforcement request of simplified procedure. The second section describes the controversies to be debated, relative to the possibility of pronouncement of an acquittal order or suspension of the criminal trial in case of simplified procedure, as well as the possibility of removing these provisions in the means of appeal. The study pleads for a legislative intervention which should amend the current editorial content of art. 3201 by such manner so that the judge is no longer limited textually only at the pronouncement of the conviction order. Otherwise, the trial in case of acknowledgement of guilt could easily concede its position to conviction in case of acknowledgement of guilt.
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Starting from the real premise of the existence of certain controversies regarding the prosecutor’s seat, role, functions and competencies in the internal legal system, the author brings to debate the special situation of the prosecutor, protected, under exceptional provisions, by the constraints of the hierarchical subordination specific to the organization of the Public Ministry. During the performance of his procedural functions, regulated under art. 316 of the Code of criminal procedure, the prosecutor can claim a status similar to the judge’s. The rules acknowledging his freedom of action and procedural expression concurrently exonerates him from any form of liability that might be engaged as effect of the procedural practice totally independent in relation to the hierarchical management or agents of other powers.
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The crime of family abandonment is a continuing offense. The courts have strictly enforced the decision no. 10/2008 issued by the High Court of Cassation and Justice, joint Sections, which sets forth that in the case of continuing and continued offenses, the prior complaint shall be admitted within two months from the date the injured party or the party entitled to file the prior complaint has knowledge of the identity of the offender. The decision issued in second appeal in the interest of law shall be binding and might lead to the suspension of the criminal trial in all cases concerning abandonment of family. Thoroughly analyzing the doctrine and jurisprudence, the author identifies a solution for solving this dilemma.
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On the basis of the organization and operation of the union institutions there are the principle of autonomy of their organizing, the principle of conferral of competencies and the principle of the institutional balance. MEPs represent the people (in the system previous to the Treaty of Lisbon) and the EU citizens (under the current regime), they can not receive instructions, orders from governments of the Member States, not being appointed by them. The States are associated in the Union itself, which reveals a community of interests and aspirations, embodied in the objectives and decisions set.
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The international treaties on human rights are the fundamental conventional sources de jure applicable in this area and at the level of the European Union. The evolution of their content relevant to the fundamental rights is spectacular, starting from the lack of interest in terms of regulations expressed in the Treaty of Rome signed in 1957, to the rules of reference to the (European) Convention for the protection of human rights and fundamental freedoms contained in the Single European Act or the Treaty of Maastricht and up to the establishment of the European Union’s own protection mechanism under the Treaty of Lisbon and the Charter of fundamental rights.
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Prin excepție de la regula instituitã prin dispozițiile alin. (1) al art. 86 C.pr.civ., potrivit cãreia comunicarea actelor de procedurã se face prin agent procedural, dispozițiile alin. (3) al aceluiași articol stabilesc cã aceastã comunicare se face prin poștã, cu scrisoare recomandatã cu dovadã de primire sau prin alte mijloace ce asigurã transmiterea textului actului și confirmarea primirii acestuia.
