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Causes leading to change of punishment are such conditions, circumstances or contexts which are exterior to the contents of the crime and which outline a higher or lower level of social danger of the deed or of dangerous behavior of the criminal, thus determining a change of punishment, either in terms of quantity (in the form of duration or amount), or in terms of quality (change of one main punishment by another). In these causes, a distinction is made between attenuating and aggravating causes. The attenuating causes category includes attenuating conditions and attenuating circumstances, while the aggravating causes category includes aggravating conditions and aggravating circumstances. -
The authors of the new Criminal Code intended to redesign the punitive model of relapse, but the solutions proposed reveal the inconsistencies of the model. The new Criminal Code no longer defines the post-condemnation relapse distinctly from the post-execution relapse, and the small relapse no longer exists in the new regulation, the lawmaker preferring a general definition of relapse. Although the intention of the code’s authors, transmitted to the lawmaker, was to aggravate the punishment regimen of relapse, by increasing the duration of imprisonment, which may represent a first term for relapse in one year, in practice a more favorable regimen is created for those who have been punished to imprisonment for less than one year, a thing, however, not justified given the statistic evolution of the number of persons with a judicial record who reiterate their criminal behavior. The idea of the project’s authors was to simplify the regimen of punishment of relapses, based on an arithmetic sum in the case of post-condemnation relapse, and on the legal increase of special punishment limits by half in the case of post-execution relapse, but the proposed model of punishments leads to a more severe punishment regiment for post-condemnation relapse than for the post-execution relapse, although the latter is believed to represent the worse modality of relapse, as the social danger of the relapsing criminal appears, in this case, to be more precisely shaped, by proving the inefficiency of the punishment the criminal has executed.
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Raportul de expertizã întocmit într-o cauzã penalã ce viza sãvârșirea unor infracțiuni de cãtre reprezentanții unei societãți comerciale constituie, în litigiul având ca obiect contestarea de cãtre respectiva societate a legalitãții unor acte administrativ-fiscale, un mijloc de probã extrajudiciar, care prin excepție de la principiul nemijlocirii probelor, poate fi folosit numai în cazul în care nu pot fi administrate probe judiciare în cauza respectivã (Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal, decizia 5115 din 13 noiembrie 2009).
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According to the latest’s international studies about economics in Latin America, a natural problem that have emerged it is the lack of finance oriented in two fronts: in first place, to the small and medium corporations, and in second place, to promote businesses devoted to the technological innovation. In that lines of ideas, for the last years have being accepted in the Chilean Congress several changes in the commercial law, destined to provide an adequate juridical structure to provide entrepreneurs to generate the evolution our markets require to enter a natural standard of growth, two politics in this direction were the creation of corporations of multiple guaranty, and stock divided corporations with limited responsibility, who are called as a concrete solution to this problems.
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In this article, the author attempts to draw the attention of law practitioners in Romania on the importance of the “money laundering” phenomenon, in the context of the need to fight against organized crime and crime in general, followed, in most cases, by the attempt to “legalize” the income obtained from criminal activities. We believe that the action is welcome, being aimed at a better specialization of Romanian practitioners, also in the context of the relative “novelty” of this criminal pattern at both national and international level, in the field of prevention and fighting against money laundering.
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The authors intend, in the first part of the article, to clarify, based on decisions made by the European Court of Human Rights, the meaning of “criminal charge” in relation to the provisions of art. 6 of the (European) Convention for the protection of human rights and fundamental freedoms, while in the second part of the article, they review the effects of the decision made in the case Anghel vs. Romania on the national legal framework and on case law.
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The article reviews the effects of suspending the judgment of the case during the settlement of the non-constitutionality exception, by reference to art. 6 of the Convention for the defense of human rights and fundamental freedoms, in particular in what regards the requirement of a reasonable hearing term and of celerity of the criminal trial. In addition, the consequences of resolution no. 3/ 2010 of the Constitutional Court on pending criminal procedures on the dockets of the courts of law are discussed.
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According to the decision of the supreme court, further to the judge admitting the complaint against the resolution not to initiate criminal investigations and sending the case to the prosecutor, the latter cannot be obliged to initiate the criminal investigation; in his turn, the judge cannot hold the case for settlement, the consequences being very serious in what regards free access to justice.
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According to the provisions of art. 270 para. 2 of the Romanian Customs Code, as amended by Law no. 291/2009, for the offence of smuggling to exist, it is necessary that the customs value of the goods or merchandise concealed from customs control exceed RON 20,000 in the case of products subject to excise tax and RON 40,000 for other goods and merchandise. This study is aimed at the identification of the procedures for establishing the customs value of the merchandise, according to the provisions of the Customs Code, of the Regulation for its application and of the Norms applicable to travelers and other individuals, as well as the limitations regarding the ordering of an expert report in the case, by way of ordinance issued by the prosecutor performing the criminal investigation.
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In this study, after briefly describing the concept of sovereignty, the author successively examines the sovereignty of member states in their relation with the European Union, express restrictions of sovereignty (changes which occurred in the constitutions of member states); certain issues regarding the permanent integration of member states.
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Lately, the National Council for the Settlement of Challenges faced numerous challenges against acts of various commercial companies, without having the capacity of contracting authorities, but who benefit from public funds for the performance of certain public interest projects, companies which, according to the financing agreements concluded with the financing bodies, should have made any acquisitions necessary for the performance of the projects based on the Government’s Emergency Ordinance no. 34/2006 on the award of public procurement contracts, of contracts for the concession of public works and of contracts for the concession of services. The study represents the second part of an article with the same title, published in issue no. 7/2010 of this magazine and is intended to present a comparison of diverging solutions to such challenges and the grounds they are based on, as encountered in the recent practice of the Council and of control bodies.
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According to art. 32 of the Land Property Law no. 18/1991 (republished on January 5, 1998) in the case of „establishing” the right of ownership as provided in this law, the land thus attributed to individuals „shall not be alienated by documents between the living for 10 years, starting from the beginning of the year following the one during which the property was registered, under the penalty of absolute nullity of the alienation document”, the city hall, the prefect’s office, the prosecutor’s office or any other interested person being entitled to file a claim for the ascertainment of nullity. The author discusses the general cases resulting from this text of law, and in principal whether the 10-years term lapses (is counted) from the „registration” of the property in agricultural registries or from its „transcription”, or „registration” of an alienated property in transcription registries, namely its „registration” in the Land Book.
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In this study, after a brief introduction on parental rights and obligations, the author examines, in the light of the legislation currently in force (Family Code – amended by Law no. 288/2007, and Laws no. 272/2004 and no. 273/ 2004), and in the light of the future Romanian Civil Code (published on July 24, 2009 but not yet into force), the status of parental rights and obligations, provided that the child has been legally entrusted to other persons, discussing, in this manner, with priority, the extent to which the parents are entitled to provide their consent to the marriage of their child (if the child is a minor) or to his/her adoption.
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Starting from the hypothesis of art. 1073 of the Civil Code („the creditor is entitled to obtain the exact fulfillment of the obligation”, otherwise being „entitled to remedies, the latter being called “damages” in the Romanian legal language), the author makes, in this study, a review of the issue of evaluating default damages in the case of money obligations, namely of the (default) interest, then detailing, in the third part, the legal regimen of legal interests in commercial matters.
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In considering the very succinct legal regulations (art. 191–203) regarding limited liability companies in Law no. 31/1990 – the Companies Law (republished in 2004, as subsequently amended and completed), the author only examines issues related to such commercial companies, namely: the revocation of their directors, on the one side, and the transfer of shares in limited liability companies, on the other side.
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In the study above, the author examines the issue of redemption of own shares by a company admitted for trading on a regulated market, under the conditions of art. 1031 of Law no. 31/1990 regarding trading companies (republished on November 17, 2004), of EC Regulation 2273/2003 and of Directive 71/91/EEC. For this purpose, the author reviews: how the redemption of own shares is performed in practice, the juridical effects of such redemption, the funds employed to make the redemption; various specific cases in the matter.
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The author, after explaining the „valorism” and „value debt” concepts, enters into details on the issue of aggregation of default interests (art. 1088 of the Romanian Civil Code – 1865 –, still into force), reaching a conclusion, which agrees to a minority juridical doctrine, that the interest may be aggregated to a value debt.
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Starting from two recent decisions of the Constitutional Court of Romania, according to which the constitutional contentious court ruled that both the grounds and the purview of its decisions are generally mandatory, the authors of the study perform an examination of the case law of this Court, meant to support the stated rule. Based on numerous examples from the Constitutional Court case law, the importance of the grounds of decisions made by the court is emphasized, in particular when in such grounds the Court mentions the consequences of ascertaining the non-constitutionality of the texts under review. The conclusion of the study is that, in essence, the observance of the general mandatory character of the decisions of the Constitutional Court is not only a way to make its purview more efficient, but also to make the grounds more efficient, or the Court’s interpretation of the fundamental law. At the same time, an opinion is expressed that, in order to guarantee the Constitution, the intervention of the Constitutional Court is not only legitimate, but also necessary, in what regards the provision, in the contents of the grounds of decisions, considering the specific effect of constitutional law attached to any of the decisions of the Constitutional Court, of what the effects are of finding the texts under review constitutional or even non-constitutional.
