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The author starts in this study from the premise that a law may not be retroactive, after presenting the regulation on retroactivity in the previous Civil Code (of 1865), and makes an actually exhaustive analysis of the matters related to the implementation of civil law in time, as related to the continuity of the Romanian new Civil Code (applicable as of 1 October 2011). Finally, the author reaches the conclusion that the provisions of the Romanian new Civil Code as regards the set of civil laws in time are much more complex, and therefore superior, in relation to the regulations concerning the old Civil Code. -
The correlation between parliament and democracy is a classical one. It has been proven not only by the beginnings of parliamentarism, related to limitation of the omnipotence of the monarch, but also by subsequent developments, especially in the generalization of universal suffrage, but also by the historical experience of the previous century, when the collapse of totalitarian or authoritarian regimes has always been followed by the return to parliamentarism or to a political system in which Parliament’s role is essential. After joining the European Union, its role was enhanced by its involvement in the European decision-making process.
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The amendment of the fundamental law of a State is an extremely complex political and legal act with major meanings and implications in the political and State social system, but also for each individual. This is the reason why such a process should be well justified, respond to well-traced political and legal social needs and particularly meet the principles and rules specific to a democratic constitutional and State system, by ensuring the stability and functionality that this system needs. This study reviews the need for such a constitutional reform in Romania, as well as certain provisions of the Presidential Commission’s Report analyzing the political and constitutional regime in our country. The study also words opinions about the justification of certain new constitutional regulations. Against this background, it is believed that there are arguments in favor of maintaining the bicameral parliamentary system, and a potential revision of the Fundamental Law should take into consideration the measures necessary to guarantee the political and constitutional institutions specific to the rule of law and to avoid the ultra vires exercise of the State authorities’ duties. According to the author of the study, the scope of the Constitutional Court’s duties should be extended.
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Further to the analysis of article 289 (3) of National Education Law no. 1/ 2001, the author reaches the conclusion that this piece of legislation (according to which the teaching or research staff of higher education institutions may carry on their activity after retirement provided that individual employment agreements are concluded for a limited – annual – period) breaches the European rule in the field (Council Directive 1999/70/EC of 28 June 1999). Therefore, if a fourth agreement is successive, this time, such ope legis becomes concluded for a unlimited period.
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The study presented hereafter stands for a supplementation to the doctrine’s existing analysis in relation to the legal provisions regarding the publishing agreement comprised in the Law no. 8/1996 on intellectual property and its correlative rights. Summarizing the article’s content, the author has performed a thorough analysis of the Romanian, and European case law with a special interest for the French jurisprudence. As a starting point for the study, the author considered the high frequency use of the publishing agreement aimed at capitalizing the patrimonial rights related to intellectual property. The author has identified, and examined several relevant aspects related to the publishing agreement’s field of application, marking the limits in relation to other civil agreements, substantiating comprehensively the legal characteristics of this type of agreement by analyzing its scope, its content, its effects, its means of cessation from the point of view of the new civil code (Law no. 287/2009).
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The author considers, in this study, that, in case of medical malpraxis in the public health system, it is the Romanian state which has patrimonial liability to the victim patient (through the medical service provider – public institution), according to the Administrative Dispute Law no. 554/2004, and the doctor in default (employee of the medical service provider) shall have a patrimonial liability to such provider (his/her employee), as set forth by article 270 et seq. of the Labor Code.
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The authors review in this study the legal regime of receivables’ discounting, both in the Civil Code (of 1865, still in force), and in other special laws, as well as in the Romanian new Civil Code (Law no. 287/2009) or in the Romanian new Civil Procedure Code (Law no. 134/2010, neither law has entered into force yet), also considering the opinions expressed in the doctrine and in the relevant decisions of the case law. In this context, the authors reach the conclusion that indexation is compulsory, as it is in line both with the provisions of the Constitution of Romania and with the (European) Convention of Human Rights and Fundamental Freedoms.
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This study starts by a comparative analysis of the institution of the summons to pay (regulated by Government Ordinance no. 5/2001) and the procedure of the payment injunction (regulated by Government Emergency Ordinance no. 119/2007), and in the end proposes the unification of both pieces of legislation into a single one, equally applicable to civil and commercial obligations.
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In this study, the authors emphasize some aspects of administrative practice on marriage before attaining the legal minimum marriage age provided by law. These comments relate in particular: lack of consistency in preparing related applications relating to request age waiver; superficiality shown on preparing, presentation, or acceptance of reasons for the foundation of this marriage; the proceeding and the method when this marriage is accepted by the parents, tutor or other person or authority/ institution empowered to exercise parental rights. These critical remarks are correlated and reasoned with the legal provisions, offering their views on the administrative practice.
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The more favorable criminal law principle was not implemented in a unitary manner in time. Doctrine-related conceptions were different, substantiating either the idea that only a law as a whole may be favorable, or the idea that favorable provisions of distinct laws may apply to a concrete case. The author defends the supremacy of more favorable criminal law over all the criminal law principles and believes that a more favorable rule may be corroborated with another rule regarding the content of the crime, without generating the lex tertia. The author also states that the more favorable criminal law principle should govern all the sequences of the criminal lawsuit, initiated upon the perpetration of a crime and extinguished by the perpetrator’s total rehabilitation.
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The failure to fulfill the periodical financial or fiscal obligation consisting in source withdrawal taxes or contributions was qualified in time by certain authors, as a continued crime, and by others, as a successive continuous crime. Choosing the last version, the author of this study identified several criteria for making a distinction between the two forms of crime.
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One condition of the status of repetition of an offence is the existence of the prior final order for conviction to imprisonment for more than 6 months, issued in the case of perpetration of an intentional crime. As regards the calculation of the time when the conviction order becomes final, the substantial criminal law rules shall apply. According to such rules, time shall not be calculated in hours, but only in days, weeks, months and years. Since a day expires at 1200 a.m., the perpetration of a new crime on the date when the previous decision becomes final does not entail the status of repetition of offence for the defendant, but the applicability of the institution of felonies in concert.
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The establishment of the European arrest warrant at the European Union level, which actually replaced extradition, is, without any doubt, an important success of the Member States in the fight against cross-border crime. The execution of a European arrest warrant by the relevant Romanian judicial authorities, in the case of cross-border crimes, involves several specificities of this type of crimes, with direct implications over the entire European judicial system. The specificities identified by the authors in the paper include the execution of the mandate, even when the double crime condition is not fulfilled, the possibility of the Romanian competent courts to order the execution of a European arrest warrant, even when the crime for which the execution is demanded does not have the same name as in Romanian, the possibility of the relevant Romanian court to order the execution of the European arrest warrant, even if the crime for which such execution is requested is not provided by the Romanian law, but the content of the crime provided by the Member State law has similarities with a crime provided by our legislation etc. The analysis also revealed certain aspects related to the need to amend and supplement the special law (and the European piece of legislation) that should in line with the European legislation in the field.
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The authors look at the equipollence principle – related to the moment when the period for the enforcement of a mechanism of redress starts to run – mostly in terms of the case law. Starting from the publication, a short time ago, of the decision issued in a case by the Criminal Section of the High Court of Cassation and Justice, note is taken of the fact that the case law of the supreme judicial authority in criminal matters has varied in this respect in time, starting by the acceptance and enforcement of this principle, followed by the denial of its applicability, and then by its re-enforcement. As regards the same principle, the judicial practice of the High Court of Cassation and Justice in the civil trial-related matter is unitary and constant, meaning that the equipollence theory strictly applies to the cases expressly regulated by law, and no cases when equipollence is also applied for other assumptions as well are identified. The conclusion is that the inconsistencies between the criminal and civil trial-related matters in terms of legislative, doctrine-related and case law approach of this principle, underlined throughout the analysis, should be eliminated both by legislative amendments and by judicial practice unification mechanisms.
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Law no. 202/2010 on certain measures regarding the acceleration of the settlement of lawsuits, the so-called “small reform”, was adopted in order to accelerate the settlement of lawsuits, by ensuring the swiftness of procedures, both in criminal matters and in civil matters, even before the expected entry into force of the new codes (the Criminal Code, the Criminal Procedure Code, the Civil Code, the Civil Procedure Code). In the field of criminal prosecution, certain provisions of the current Criminal Procedure Code were amended, with a view to ensuring swiftness by eliminating the provisions that required the court intervention for the revocation or termination of certain preventive measures if the prosecutor issues a decision for the non-initiation of court proceedings; however, no amendments were correlatively made to other provisions of the code in relation thereto. Therefore, certain disputes might arise in connection with the implementation of such texts of law.
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The excessive activity of the criminal trial-related law in the case of transient situations can ensure the predictable nature of law and the elimination of the cases when the parties are harmed by the limitation of the mechanisms of redress. The reporting of the implementation of the criminal trial-related law regarding hearings and mechanisms of redress upon the court’s notification provides to the parties sufficient prediction as regards the knowledge of such hearings and mechanisms of redress since the initial moment of the judgment phase. The author appreciates that such an approach in the law implementing the new Criminal Procedure Code would ensure an efficient transition from the old criminal trial-related law to the new criminal trial-related law.
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The article reviews the organized crime phenomenon, as cross-border and multinational crime. The first section substantiates the concepts, both from a doctrine-related and a legislative perspective. An important part in terms of content and scope is dedicated to the analysis of European policies and strategies, emphasizing the security strategy of the European Union. The last part presents certain solutions for fighting against the cross-border crime phenomenon.
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Constrângerea moralã, cauzã care înlãturã caracterul penal al faptei prevãzute în art. 46 alin. 2 C.pen., presupune îndeplinirea urmãtoarelor condiþii: sã existe o acþiune de constrângere exercitatã de o persoanã asupra psihicului unei alte persoane, prin ameninþare; ameninþarea sã creeze un pericol grav pentru fãptuitor sau pentru o altã persoanã, în cazul în care nu ar sãvârºi fapta prevãzutã de legea penalã; pericolul cu care se ameninþã sã nu poatã fi înlãturat decât prin sãvârºirea faptei prevãzute de legea penalã.
