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Through this study, the author starts from the monistic regulation of the current Civil Code, raising for discussion the possibility of adopting a new Commercial Code, which should include all the essential regulations of the special laws in force, with regard to the legal relations in which those who pursue professional activities participate, regulations on the special status of the participants in the legal relations intended for professional activities, the trading companies and the trading professionals who are natural persons, regulations on the contracts and guarantees specific to professional activities (leasing contract, franchise contract, banking contracts and guarantees), regulations on credit titles, the regulation of the insolvency procedure, updated for all areas of professional activity.
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By the provisions of Article 657 (2) of the Civil Code it is regulated the situation in which the destruction of a smaller part of a building takes place, destruction that does not affect the building as a whole nor in a proportion of no more than half of its value, in which situation the co-owners are bound to contribute to the restoration of the common parts proportionally to the quota-share of each of them. The law establishes the obligativity of those co-owners who either do not want or can not participate in the restoration, to assign the quota-shares of the right of forced joint ownership to the other co-owners, meaning that it establishes a modality of extinguishing the right of private property, which, in our opinion, is likely to give rise to some situations that are hard to accept.
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Having regard to the number of judgments delivered in the field of property and of expropriation against Romania by the European Court of Human Rights, it is necessary to present the relevant principles which this court has set out, principles which the national judge is bound to observe and to apply to concrete cases, in accordance with the provisions of Article 20 of the Constitution. The principles not correlated with actual examples would be devoid of content, therefore the presentation of the most important examples on the basis of the state of fact emphasizes the correct reasoning of the Court, the more so as it has a limited competence to verify the compliance with the domestic law1, attribution which is the responsibility of the national judge.
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Commercial competition is „a social patrimonial or non-patrimonial relationship, arising between natural or legal persons engaged in economic activities, based on the property right, equal opportunity for competitors, the freedom of action for enterprises, the freedom of choice for consumers and the obligation of the participants in these relationships to enable the exercise of the mentioned rights, in order to ensure a degree of rivalry between competitors which would bring benefits to the consumers, in terms of price, quality of the marketed goods and services”. Competition can be manifested in various forms, namely: perfect competition, also called pure; real perfect competition; imperfect competition; monopolistic competition. From a different perspective, namely that of the respect for fair customs and of the general principle of good faith, the law distinguishes between fair competition and unfair competition. Fair competition is „the situation of rivalry on the market, in which each enterprise tries to simultaneously obtain sales, profit and/or market share, offering the best practical combination of prices, quality and related services, by respecting the fair customs and the general principle of good faith” [Article 11 a) of the Law No 11/1991 on combating unfair competition]. „Unfair competition is... the commercial practices of the enterprises that contravene to the fair customs and to the general principle of good faith and which cause or may cause damages to any market participants” [Article 2 (1) of the Law No 11/1991]. Price is an essential indicator of the social reality and also a market instrument. In the doctrine the market price is defined as „a quantity of money that the buyer is willing to offer and can offer to the producer in return for the good he can offer”. It may have anti-competitive nature when it is derisory or contrary to fair customs.
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This study presents a possible legislative incoherence, generated by the current form of Article 130 (3) of the Civil Procedure Code, concerning the invocation of the lack of competence of private order of the courts, which may lead to the situation of an incompetent court hearing a request, an abnormal situation in the conduct of a civil legal procedure.
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The author’s approach is intended for a partially critical analysis of the Decision of the Constitutional Court No 225 of 4 April 20172, by which the phrase „likely to prejudice the prestige of the profession” within Article 14 a) of the Law No 51/1995 was declared unconstitutional. The Constitutional Court has held that the criticized text is devoid of precision, clarity and predictability, as it does not circumstantiate the scope of the offences likely to cause the unworthiness in the profession of lawyer. The author considers that this solution of unconstitutionality makes an exaggerated interpretation of the incidental legal provisions, unduly restricting the right of appreciation of the competent structures of the professional organization of lawyers and of the judge called to settle any possible disputes. Within this study it is noted that there are various other situations in which the right of appreciation of the judge can not be challenged in our legal system. The approach included in this study also insists on the consequences which can be determined by the analysed solution of unconstitutionality, due to the existence of some identical or very similar provisions in respect of other liberal legal professions as well. A cavalcade of pleas of unconstitutionality, based on similar considerations, could raise for discussion other important institutions of law as well, such as those concerning the disciplinary, contraventional, civil or even criminal liability.
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Article 42 (3) of the Annex to the Order of the Minister of National Defence No M.110/2009 is a true legal innovation because it extends the scope of the liability for medical malpractice to hotel obligations (specific to the tenancy contract) within the content of the medical contract, but, at the same time, reduces the sphere of liable persons down to the military physician (treating physician and section chief), by exceeding the express legal limits of the liability of the physician and actually taking over not only the entire medical liability of the military hospital, but also of the medical equipment producers and of the suppliers of utilities of the military hospital.
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This study aims at advancing solutions in view of correctly construing and interpreting certain provisions regulated under Law No 303/2004 on the status of judges and public prosecutors, in view of determining whether ex-judges and public prosecutors are entitled to benefit from the recalculation of their service pensions as a result of reaping the length of service obtained from practicing as lawyers, after retirement.
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The Decision of the Constitutional Court of Romania No 405/2016, referring to the plea of unconstitutionality of the provisions of Article 246 of the Criminal Code of 1969, of Article 297 (1) of the Criminal Code and of Article 132 of the Law No 78/2000 on preventing, discovering and sanctioning of corruption acts (hereinafter referred to as „Decision No 405”)1, is not a mere interpretative decision2 whereby, following the admission of a plea of unconstitutionality, it is established that a text of law is constitutional only provided that a certain wording has a certain meaning3. The recitals of the Decision No 405, to which there have been added, shortly after, those included in the Decision No 392/2017, referring to the plea of unconstitutionality of the provisions of Article 248 of the Criminal Code of 1969, of Article 297 (1) of the Criminal Code and of Article 132 of the Law No 78/2000 on preventing, discovering and sanctioning of corruption acts4 (hereinafter referred to as „Decision No 392”), have emphasized the fact that the current rules of incrimination of the deeds of abuse of office, once clarified the meaning of the phrase „defectively fulfils”, still establish a criminal liability that rather acts with priority, and not according to ultima ratio principle, and the constitutive elements of the offence do not meet the standards of drafting of such legal norms identified in the case law of the European Court of Human Rights (hereinafter referred to as „ECHR”), the United Nations Convention against Corruption5, as well as in various reports and positions assumed by the European Union bodies on this subject. For the assumption that these observations of the Constitutional Court would determine the legislator to reflect on the necessity to reconfigure the legal provisions in question, the Court has indicated certain points of reference that should be considered in order to ensure a regulation compatible with the international and European standards mentioned.
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The study discusses a very delicate matter, marked by many controversies and tensions – namely the matter of ensuring the right to consult the file in the criminal prosecution phase. Within this study it is recognized the importance of exercising this right, as a component of the right to defence and as a guarantee of the right to a fair trial, but there are also provided relevant arguments as to how the access of the defence to the file can disrupt the proper conduct of the judicial activity. There are also analysed possible deeds with criminal significance if certain aspects revealed within this procedure are brought to the knowledge of the persons who do not have this right.
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This study starts from a case settled in the preliminary chamber by a court that has proceeded to the exclusion from the probative material of some illegally obtained evidence, but also of those derived therefrom. In the analyzed situation in the context of the preliminary chamber it was found that there had been a confusion which led to obtaining data on a person’s financial transactions in an unlawful manner, namely by an ordinance that had not been validated by a judge of rights and freedoms, as the provisions of Article 138 (9) of the Criminal Procedure Code would have required.
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The study discusses in a precise manner and with a careful observation of the perception of the judicial practice on this issue how it is possible or how one should proceed to the verification of the legality of the probative procedures in the preliminary chamber phase. At the same time, with pertinent doctrinal arguments, the author of the study proposes an extension of the limits of verification of the legality of the probative procedures and with regard to the validity of the authorization issued by a judge of rights and liberties during the criminal investigation phase.
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The postponing of the application of punishment is an institution recently introduced in the Criminal Code, creating problems of interpretation both in the doctrine and in the judicial practice, especially on two levels: the terminology used and the systematization of the substantive and procedural provisions in the legislation. These issues affect the institutions of the revocation and annulment of postponing the application of punishment.
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This paper starts from the finding that there is currently no clear criterion for distinguishing between the offences against bodily integrity or health and attempted murder and, as a result, the practice in this matter is contradictory. As a solution, it proposes to adopt the criterion of causal aptitude of the action, while emphasizing, at the same time, that the adoption of this criterion requires that the psychological theory of guilt be abandoned.
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Although the European Union’s activities hardly integrate into the civilist logic of the „illicit legal act”, its non-contractual liability is triggered in particular for what the doctrine generically calls „behaviours” considered to be illegal. Even under this generous hypothesis, the Union liability can only be engaged under very strict conditions, less established by the Treaties and, rather, by the judge in Luxembourg, on the basis of some rules that discourage the litigants, limiting the possibility, in procedural and material terms, to bring such actions. The jurisdiction to settle the disputes concerning non-contractual liability of EU exclusively pertains to the European Unional jurisdictions, by applying Article 268 TFEU, which necessarily implies that the non-contractual liability of the Union must be engaged solely on the basis and under the conditions of EU law. Such an argument is fundamentally justified by the fact that engaging this liability very often implies that the scope of application is an appreciation of the Union’s policy, which is why the exclusion of the competence of any national jurisdiction appears to be natural.
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The study is devoted to the legislative convergences and divergences existing at the level of the European countries regarding the functioning of small and mediumsized companies. The first part of this approach emphasizes the important role of small and medium-sized companies within the national economies, including their contribution to the formation of the gross domestic product. In the author’s opinion, the support granted by the political and legislative powers, including by the doctrine, is not in accordance with the contribution brought by the small and medium-sized companies to the development of the national economies. Starting from the finding that the typical legal form of functioning of the small and medium-sized companies is represented by the limited liability companies, the author presents the most relevant aspects regarding their establishment, organization and functioning. A particular analysis is also carried out in relation to Directive 2017/828/EC, a European document that is likely to significantly promote appropriate normative convergences. The author also emphasizes some positive trends manifested at the level of the European Union, such as those represented by the elimination of the fixed minimum share capital or by the reduction thereof. Among the legislative divergences, the author analyzes those determined by the conflicts of interests between the members of the limited liability company. In particular, the author takes into account the divergences concerning the right of the minority members, whose interests are threatened by the actions of the majority members, to freely exit that company.
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Presumptions have been playing an important role in the civil trial, their necessity and utility being recognized both in the doctrine and in the judicial practice. Recently, in order to remove any doubt about the quality of means of evidence of the presumptions, the legislator of the Civil Procedure Code enumerates them among the means of evidence and, at the same time, establishes their legal regime, and the legislator of the Civil Code has extended the scope of the legal presumptions. The reason behind these regulations is based precisely on the necessity to find out the truth also in the cases in which the judge does not have available direct evidence. Certainly, as we have stated on another occasion, the presumptions are indirect means of evidence, as the conclusions drawn imply eo ipso the prior proof of a fact that is neighbouring and related to the unknown fact. As we shall further show, the Romanian legislator has understood to classify the presumptions into legal (established by law) and judicial or simple (left to the enlightments and wisdom of the judge), with the mention that, in this study, we shall refer in particular to the legal presumptions.
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The institution of the penal clause, regulated in Articles 1538–1543 of the new Civil Code, still encounters different interpretations, even contradictory sometimes, in the judicial practice and in the solutions of the courts. In particular, the interest of the practitioners and of the specialized doctrine is based on the possibility conferred to the court of law to reduce the penal clause in the two cases provided by the legislator, namely when the main obligation has been executed by the debtor to the benefit of the creditor and when the penalty is clearly excessive in relation to the prejudice which might have been foreseen by the parties on the conclusion of the contract. This study aims to analyse thoroughly the two hypostases in which the judge is allowed to defeat the principle of binding force of the contract and to intervene in the decrease of the quantum of penalties, an analysis materialized both from a theoretical point of view and especially from a practical point of view, offering relevant solutions from the recent judicial practice.
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What we intended on this occasion is to discuss the rules that are used to determine in the concrete situations, related to the case, the legal inheritors of de cuius and the meanings of these rules. The topic seems interesting to us, because on the way in which it is dealt with, on the answers given to some questions, which are raised or can be raised in this regard, depend the adequate theoretical perspective and the rigor of determining of the inheritors in a given case, not only of the lawful ones, but also of the testamentary successors, each category of heirs being able, either alone or with the other, to access the inheritance.
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The content of the medical legal relation includes all rights and obligations of the provider and of the beneficiary of the medical service. Among these, only the rights of the patient benefit by an explicit and ample special regulation and by a growing doctrinal interest. However, this does not mean the lack of specific rights in favour of the doctor, but only the necessity to identify the existence and the determination of their content by analyzing the nature and/or the implicit effects of the legal provisions and of the jurisprudential solutions. Thus, the patient’s acceptance by the doctor, based on Article 663 (1) of the Law No 95/2006, is the equivalent of the informed consent of the patient, expressed pursuant to Articles 660–662 of the Law No 95/2006 and Articles 13–20 of the Law No 46/2003; the interruption of the relation between the doctor and the patient, pursuant to Article 664 (1) c) (ii) of the Law No 95/2006, as a result of a hostile and/or irreverent attitude towards the doctor, would be impossible in the absence of an obligation of gratitude of the patient, correlative to a right to gratitude of the doctor; and the jurisprudential consecration of the liability of the sanitary unit for the damage suffered by the doctor due to a nosocomial infection is due precisely to the existence of a right to security of the doctor.
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The relation between the civil servant and the public authority or institution in which he occupies the public office arises and is exercised on the basis of the unilateral administrative act of appointment, issued according to the legal provisions, and not by a contractual act. That is why the public function and the status of the civil servant have been regulated in the public law, separately from the labour relations specific to the private law, at the same time also determining the establishment of a specific sanctioning system, which takes into account the distinctive features of the way in which the public office is exercised. In this study there are analysed, from a dual perspective, theoretical and practical, the conditions of each form of the legal liability governed by the administrative law. At the same time, we also consider the cumulation of the disciplinary liability with other forms of legal liability of the civil servant for the damaging consequences of his deeds. A few aspects of novelty brought by the codification of the legislation on the liability of the civil servants in the Draft Administrative Code complete our research.
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The Civil Procedure Code entered into force on 15 February 2013, when neither the fax nor the e-mail were unknown anymore in the field of communication. However, the procedural provisions have proven to be tributary to some classical origins, even obsolete in some cases. The interventions of the High Court of Cassation and Justice, of the Constitutional Court, in the matter of law analyzed by the authors in this article, did not have the role of modernizing nor of improving the efficiency of the act of justice. The given interpretations have taken into account the letter of the law and not its spirit, probably starting from the strict application of the procedural provisions. Without disregarding these principles, the authors criticize in an argumented manner the solution pronounced by the Decision No 34/2017 of the High Court of Cassation and Justice, the Panel for the settlement of some legal issues, ruling in the sense of qualifying the procedural act sent by e-mail or fax, after the court’s work schedule, but until 24.00 of the last day of the procedural term, as being done in due time.
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Unpaid community work has received multiple valences in the Romanian criminal law system, representing either an obligation in the content of the probation measures or a way of executing the penalty of the fine or an obligation that accompanies the abandonment of the criminal prosecution. The complexity of the institution, together with its novelty, has generated a series of difficulties including in respect of the performance of the unpaid community work, this article emphasizing some of these difficulties and proposing solutions for their removal.
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The attenuating circumstance of the challenge is provided by the Criminal Code in force in Article 75 (1) a). By the challenging act of illegitimate nature it is affected the physical integrity or dignity of the person, so that, although punished by the criminal law, the offender’s deed is merely a reaction, a disproportionate response to an illegitimate action or inaction. The challenge can only be retained if the conditions relating to the offence committed under the auspices of a powerful disorder or emotion, respectively the conditions relating to the challenging act are cumulatively met. Without claiming to exhaust the subject, the paper aims to emphasize also some controversies regarding: the proportionality and the time interval between the challenging act and the offence; the distinction between the challenge and some justificative causes or causes of non-imputability; the possibility of retaining the challenge concurrently with the premeditation.
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This study discusses a novel issue in the field of theory and case law of the criminal law. It deals with the necessity to apply the complementary punishment of prohibiting the exercise of the right to pursue the activity of babysitter in the case of the persons who, acting in this capacity, have committed the offence of theft of goods located in the building in which they had access. The author claims that such necessity exists because, in this way, those persons will no longer be able to commit offences acting in the capacity they had throughout the incidence thereof.
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Acțiunea tatălui de a-l extrage pe fiul său minor dintr-un mediu impropriu dezvoltării armonioase fizice și psihice de la domiciliul stabilit provizoriu de instanța de judecată la mamă nu constituie infracțiunea de lipsire de libertate în mod ilegal, prevăzută de art. 205 alin. (1), (2) și (3) lit. b) C.pen., și nici infracțiunea de nerespectare a măsurilor privind încredințarea minorului, prevăzută de art. 379 C.pen. (cu notă aprobativă).
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Concluded on 12 December 2015, and entering into force on 4 November 2016, the Paris Agreement on Climate Change establishes the new international legal regime of the global response to threat of climate change. Contributing to the application of the Framework Convention of 1992, the Agreement adds the objective of adaptation and breaks the tradition of the Kyoto Protocol (1997), by imposing a new approach in this field, having in its center the limitation to 2°C and, whenever possible, 1,5°C of the growth of global average temperature, in relation to preindustrial levels, determined national contributions, and a transparency mechanism in ensuring the compliance of the self-assumed commitments. Accepting climate change as a „common concern of mankind” with scientific legitimacy of the conventional process and a specific legal value, being neither a „convention” nor a „protocol”, the Agreement has a universal nature, and it completes and transforms the international legal regime of the global climate action. Innovating principles are consecrated: intergenerational equity, climate justice or progression principle, new market mechanisms, with limited action, the facilitating mechanism, periodical evaluation, et al. An important role in imposing the new strategy and the new mechanism of action in climatic matters is held by the negotiations related to the post-2015 Conferences of Parties, designed to establish the „roadmap” and the proceedings for the preparation and enforcement, after 2020, of the Paris Agreement. Part of the new international conventional context regarding the new global challenges, the Agreement completes and updates the climate regime, as part of the international environmental law, bearing important specificities.
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Paulian action represents, alongside oblique action and direct action, one of the most important means of protecting creditors in general. However, unlike direct actions, this legal mechanism provides general protection to all creditors, not just a few that are mentioned by the law. Against this backdrop, in the light of economic development and the many contracts concluded lately, especially in recent years, the knowledge of rights and the means of creditor protection should be of interest to all creditors. Unfortunately, although the paulian action is expressly provided for by law, creditors rarely resort to this legal mechanism to ensure the protection of their own claims. This reluctance is likely to arise from the fear of a long and cumbersome move to promote a litigation in the form of a paulian action. From this point of view, we hope that the present study will provide practitioners, theorists, and creditors with detailed information about this legal mechanism, to encourage the promotion of a paulian action whenever borrowers act against patrimony in order to avoid enforcement.
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Under the old civil law, the registration of a property right in a land registry was a follow-up phase to the fulfilment of the obligation to give, that is, to transfer the property. In that sense, the registration thus carried out was only intended to ensure to third parties the publicity of the legal transaction transferring the right of property, making the new owner known, similarly to other law systems in Europe. Currently, under the Civil Code in force, things have remained relatively under the same conditions. The Civil Code regulated the constitutive system of registration rights in the land registry, but the implementing law postponed those provisions until the completion of the cadastral measurements. However, we consider an apriorical analysis of the constitutive system of rights to be helpful in anticipating and clarifying the legal issues that may arise in the future, but also in determining the legal nature of the interim period between the conclusion of the contract and the time of registration in the land registry, that is to say, until the time of complete fulfilment of the obligation to give. Last but not least, we will analyze aspects of the eventual liability that could be committed because of the faulty fulfilment of the obligation to apply for registration in the land registry, therewith identifying the persons who can apply for the registration and the persons who have to apply for it.
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The purpose of the author’s approach is to determine the real meaning of the contestation for annulment in relation to the other means of appeal regulated in the new Civil Procedure Code. In this respect, the author considers, in full agreement with the current case law and doctrine, that in the processual system in force the contestation for annulment has as a fundamental objective the correction of some procedural mistakes, and not of some substantive errors. In this study additional arguments are presented in favour of the thesis according to which the contestation for annulment regulated by Article 503 (2) point 2 of the new Civil Procedure Code can not have the meaning of envisaging the substantive mistakes, whereas such an approach does not have any support in the provisions of the legislation in force. The author expresses reservations also with regard to the establishment of an extraordinary means of appeal, of the sort of the former extraordinary recourse, which would make possible to remedy some substantive mistakes. In this respect, the author has noted that the trend of modern times is not one that would lead to the multiplication of the means of appeal, as it happened in our country in the last three decades, but to their rationalization and achievement of efficiency. However, an establishment of a new means of appeal could only be discussed in the context of a substantial reform of our judicial system.
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The Law No 95/2006 on the health reform stipulates, in Article 653 (2), that: „ the medical staff shall be liable under the civil law for the prejudices caused by error, which also include negligence, recklessness or insufficient medical knowledge in the exercise of the profession, by individual acts within the prevention, diagnosis or treatment procedures”. The text of law finds its applicability in the cases that raise for discussion whether the doctor’s diagnosis was a correct one and the chosen therapeutic conduct was necessary to restore the patient’s health condition. However, even under the terms of subsistence of the situation of error of diagnosis, this does not unconditionally engage the legal liability, an approach that makes necessary a distinction between the guilty diagnosis error and the excusable diagnosis error. In this study the authors intend to identify and analyze the hypotheses in which the doctor’s legal liability can operate/intervene in case of an error of diagnosis.
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The modality of enforcement through garnishment involves the existence of a legal relationship, in which the pursued debtor has the quality of creditor, and the garnishee has the quality of debtor, a legal relationship used by the pursuing creditor in order to realize the claim from the writ of execution. The garnishment knows two phases, the one of establishment and the one of validation, the second one intervening only if the garnishee fails to fulfil its obligations as a result of communicating the address for establishment of garnishment. The application for validation of the garnishment is a veritable application for summons, its finality being to obtain a writ of execution by the executing creditor against the garnishee. The study examines the defences which the garnishee can invoke in the court of validation, having regard to the legislative solution provided by the current Civil Procedure Code, according to which a garnishee is forbidden to file a contestation to the enforcement against the acts establishing the garnishment, the latter being able to use his defences only before the court of validation [Article 787 (5) of the Civil Procedure Code]. Therefore, the processual means of invoking the defences before the court of validation are analyzed, being questioned the admissibility of the garnishee’s filing of a counter claim aiming at the cancellation of the juridical act from which the relationship between him and the debtor arose. The defences of the garnishee are analyzed starting with the distinction between defences on the merits and the processual and procedural ones, in relation to the possibility conferred to the third party to invoke against the creditor all the pleas and defences that he may oppose to the debtor, to the extent that they are prior to the establishment of garnishment [Article 790 (3) of the Civil Procedure Code].
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The study proposes the analysis of a jurisprudential solution from the perspective of the regulations on the tort civil liability for the prejudices caused by things in order to signal the recognition of the reparable nature of some new categories of prejudices. The arguments exposed are substantiated on the regulation of the Civil Code, but also on the opinions expressed in the classical and contemporary doctrine, supporting the need to ensure the full reparation of all prejudices caused to the victim.
