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In this article, the author emphasizes the main amendments brought to the Romanian criminal and criminal procedure legislation by Law no. 202/2010 regarding certain measures to accelerate the resolution of trials. -
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This study is devoted to a particular analysis of the reason for contestation for annulment provided by Article 503 (2) point 2 of the Civil Procedure Code, text which allows the cancellation of a judgment when it is found that „the solution given to the recourse” is the result of a „material error”. The author argues that the mentioned text does not allow a broad interpretation, namely in the sense that the material errors could lead to the cancellation of a judgment for mistakes that concern the merits of the case. The current regulation does not provide sufficient arguments for a different approach than the one promoted under the influence of the previous Civil Procedure Code, and this despite the fact that Article 318 (1) of this Code was using the phrase „material mistake”, and not that of „material error”. In the author’s view the whole physiognomy of the contestation for annulment is materialised in the fact that this extraordinary legal remedy was made available to the parties only for the removal of some procedural errors, and not of those on the merits as well. In order to remedy some misjudgments it is open the means of appeal, and, in some cases, of the revision as well. However the contrary opinion has the merit to emphasize that there are practical situations in which the current procedural remedies could be considered as insufficient. Therefore, some future legislative approaches might also consider some reassessments concerning the regulation of the legal remedies. -
Recognizing the climate emergency, and officially assuming the objectives of limiting the temperature growth up to 2 ° C and carbon neutrality work as an impulse for the establishing the constitutional basis of an adequate juridical and political reaction and for the institutionalizing the State’s and public authorities’ obligation to act against climate change. The presen ce of express referrals to climate in 10 fundamental laws and the ongoing initiatives for their modification and update in the sense of „climatizing” the pertinent provisions, reflect a vigorous process of constitutionalizing of the eco-climatic issues. Until then, assimilating climate to the enveloping concept of environment allows the extensive interpretation of existing dispositions, but the consolidation of the trend and the expression of the demands of the environmental transition impose inserting express constitutional provisions, well-articulated to the juridical and constitutional system as a whole. In this context, a special part is to be played by case law that by creative interpretation of existing text, supplies the directly regulated means of expression and suggest its apparition and its meanings. Regarding the Constitution of Romania, by interpreting the existent provisions (Article 35 which recognizes the right to a healthy and ecologically balanced environment, Article 44 (7), and Article 135 (2) E and F), one can apprehend the general duty of any person, of the State, and of the public authorities, to protect and improve the environment, including climatically, the principle of non-regression and of constant progress in the field. The case law of the Constitutional Court of Romania, as well as the ECHR, is predisposed to „acclimatizing” developments, even if, for the time being, it has not had the chance to manifest itself notably in this direction. Under the impulse of international developments and of the strategic EU context (the Green Deal, the Climate Pact), more and more propositions come to life, in the sense of inscribing climate within the contents of the fundamental law. -
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. -
Celebrating the Day of Justice is a good opportunity for the theoreticians and the practitioners of law to subject to reflection topics of a particular interest, legislative and jurisprudential solutions, or de lege ferenda aspects. Such an event also enables the evaluation of the institutional relations between the authorities that have a well-defined constitutional role in exercising the judicial authority, as well as of the contribution of the different legal professions to the general and complex law enforcement process. From this perspective, the author emphasizes not only the importance of the celebration reunion of the representatives of the main institutions and professional organizations of jurists, but also the requirement for such an event to be marked by scientific manifestations, in which the participants to make known their own researches in the field, to debate in a spirit of fellowship and solidarity issues facing justice as a public service, the statute of magistrates, as well as of the other legal professions. In a way, every man of law is responsible for the triumph of the idea of justice in his profession. -
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The study is considered to be a valuable examination from a theoretical perspective of recent judicial practice, an examination which often shows argumented critical accents, all relating to the offence newly introduced in the Criminal Code in force since 1 February 2014, respectively the violation of the professional headquarters. One by one, illustrating concrete cases from the practice of the Romanian courts, there are identified difficulties arising from the interpretation and application of the norm of incrimination included in Article 225 of the Criminal Code. Such elements are the following: the notion of „headquarters”, the correct identification of the injured person or the adequate identification of the social value protected by the norm of incrimination. The study is valuable in that it argues the opinions expressed by consistently invoking some aspects included in the preambles of some decisions of the European Court of Human Rights. -
The present study proposes to analyze the issue of civil guilt, in both of its forms (tort and contractual), judging that the selection of the Civil Code s applicable guidelines (the new Civil Code, in force as of October 1st 2011, as well as the previous Civil Code) from the amalgam of jurisprudential solutions and doctrinaire directions is highly important. The exploration of the Civil Code ks texts brings in discussion a current topic much debated by the contemporary doctrine: disappearance of the unity and harmony of civil liability, which is traditionally founded on guilt. The coexistence of the hypotheses of subjective civil liability with those based on the idea of risk, warranty or equity, within the context of modern society, evidences the increase of the remedial role of civil liability, to the detriment of the sanctionable role. The attention focuses on the victim ks position, to be indemnified, being less important, within the area of civil liability, the sanction applicable to the offender. In the last part of the study, the author expresses her belief that, despite inherent difficulties, undoubtedly, at this moment, the guilt still remains „the eternal lady of tort liability”. -
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The article addresses the newly introduced legal institution of verification of the legality and lawfulness of protective measures during the criminal trial, which institutes the obligation of the criminal judicial body to periodically analyze whether the legal and factual grounds on which it was previously taken or maintained continue to exist, following to be ordered its maintenance, cancellation, extension or limitation. Through the novelty of the subject under analysis, the study will contribute to the outlining of the guidelines of judicial practice in this unique legal matter. -
The issue of the assigning of the public purchase contracts, of the public works or services assignment contracts is regulated, in Romania, by the Government Emergency Ordinance no. 34/2006, which has entered into effect in June 2006, and then it was successively amended and completed, through 14 Emergency Ordinances or Laws. In the current study, the authors analyse the recent amendments and completions of the Government Emergency Ordinance no. 34/2006 through the Government Emergency Ordinance no. 76/2010 (approved, with amendments, by Law no. 278/2010) with regard to jurisdiction (to the complaints solving procedure by the National Council for Solving Complaints in the field of the Government Emergency Ordinance no. 34/2006). For this purpose, the authors analyse the main amendments in the field, making, as the case may be, positive or negative appreciations. -
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. -
This study has as object the logical and legal analysis of the conditions in which, according to Article 341 of the Civil Code, the incomes from work, the sums of money payable as pension within the social insurance system and others similar, as well as the incomes payable under an intellectual property right are considered common assets jointly owned by spouses. The study also includes analyses relating to the categories of incomes and sums that, under Article 341 of the Civil Code, are considered common assets jointly owned by spouses. -
This article aims to present the main aspects of the legal marriage age, as governed by the new Romanian Civil Code. After a brief introductory part, the legal provisions regulating marriage at the age of majority are examined. Further, the provisions of the Civil Code regulating marriage before the age of majority are examined, and the conditions under which the minor may enter into marriage are debated: the child reaches the age of 16, there are good reasons, the existence of a medical certificate, the existence of consents required by law, respectively the parents’ consent or the consent of one of their parents or if appropriate, of the guardian and in their absence, of the person or authority which was entitled to exercise the parental rights and the guardianship court authorization. In the final part the conclusions drawn from this study are highlighted. -
With Marice Hauriou, in France, public law goes into the modern age. By his style, by the number and complexity of the themes he approached as well as by their exhaustiveness, this founding father of French administrative law – as we know it today – leaves behind a legal literature that, up to him, has only been able to provide sterile and purely descriptive commentaries of normative acts, modest works belonging to those that the modern history of public law labelled as of glossary or repertory writers. Hauriou is the one who, for the first time in the history of French administrative law, confers it the terminological and ideological substance for which it is highly appreciated by public law specialists today. Among the major themes that Professor Hauriou has approached in his work, the following are still outstanding, due to the accuracy and relevance of the analyses surrounding them, such as: – the administrative regime and the administrative function; – the institution and the institutional phenomenon; – the legal persons of public law, the public establishments and the establishments of public utility; – the public administration; – the public interest and the administrative management; – the public service; – the civil service and the civil servant; – the public property and the public domain; – the self-executing decisions or the unilateral administrative act; the administrative contract; – the administrative litigations; – the acts of government; – the discretionary power of the public administration; – the patrimonial liability for the public administration’s illicit acts; – the administrative police. Most of these themes have been systematically addressed by Hauriou, either by reference to the ideological foundation represented by the „public power”, or in relation to the notion of corporate institution, or in connection with the fact that administrative law groups rules with a derogatory nature from the rules of civil law, and legal persons under public law called upon to carry out the administrative function of the State are endowed with exorbitant prerogatives, the exercice of their duties being likely to result in a restriction of the freedom or the property of individuals. Surely, this risk – far from being totally eliminated – can be diminished, but only when individuals have effective tools to fight against abuses by executive authorities. According to Hauriou, an important place among these instruments is occupied by the so-called judicial review on abuse of power, a type of judicial action aiming at the annulment of unlawful administrative acts.
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Legal circulation of lands involved the need to adopt a law. Law No 17/2014 on the sale of agricultural lands from unincorporated areas is problematic, at least as it regards the conditions for acquiring lands and property rights in the way of establishing the pre-emption right. -
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This study deals with the sale with repurchase option, a variety of sale of a distinctive specific nature, which may be sometimes confused with other types of contracts, of different legal nature. The paper analyzes how it is regulated the sale with repurchase pact in the Civil Code of 1864, highlighting the circumstance according to which the previous civil regulation did not contain clear and imperative legal norms that could have been able to be protect the public order interests, for the purposes of granting real legal guarantees for their defence before the sale with repurchase pact. At the same time, the study also undertakes a careful examination of the regulations included in the current Civil Code relative to the sale with repurchase pact. There have been noticed interesting legal issues related to the terminology used by the legislator in the current regulation regarding the right of repurchase option, a right analysed in a comprehensive manner, in its stages of emergence, exercise, taking effects, transmission and extinction. -
The study presented by the author is a subject matter of acute timeliness, especially from the perspective of the fact that the immovable assets do not fall within the scope of some unique rules on their sale, since there are specific legal provisions in relation to different categories of immovable assets and the place where these are located. The paper analyzes the contract of sale of different categories of real estates, such as the lands, the buildings and related land, the lands located inside built-up area, the agricultural land located outside built-up area, as well as the forestry lands, emphasizing the particularities of each type of sale. A special place within the study is occupied by the examination of the legal rules applicable to the sale of the lands located outside built-up area, the conditions in which such real estates can be acquired through sale, the persons who may act as buyers, including the foreigners, the stateless persons and the legal persons of the nationality of other state than Romania. Likewise, there are emphasized the specific phases of exercising the pre-emption right of the co-owners, lessees, neighbouring owners and of the state in case of the sale of the types of real estates analyzed, as well as the sanctions applicable in case of the violation of the rules for the exercise of the pre-emption right in this matter. The study outlines the field of action of the future research, based on the legal doctrinal opinions expressed in the researched space and on the personal views of the author, wishing to form a bridgehead for further developments. -
The interpretative solution provided by the High Court of Cassation and Justice – Panel for the settlement of some matters of criminal law by the operative part of the Decision No 15/2018, according to which „after the transfer of the person convicted by the foreign judicial authorities, in order to continue the execution of the punishment in Romania, the length of the punishment considered by the state of conviction as executed on the basis of the performed work and of good conduct, granted as benefit in favour of the convicted person, by the foreign judicial authority, must not be deducted from the punishment which is executed in Romania”, has lost its validity and binding effect both as a result of delivery of the judgment of the Court of Justice of the European Union – Grand Chamber of 8 November 2016 in the Case C-554/14 and as a result of the entry into force of the amendments brought to the provisions of Article 144 (1) of the Law No 302/2004 by the Law No 236/2017.
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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). -
There are situations in which the judicial bodies need the opinion of an expert to ascertain, clarify or evaluate certain facts or circumstances that are important for finding out the truth. Forensic expertises have a special regime in relation to other types of expertises, which can be performed only in sanitary institutions of forensic medicine, subordinated to the Ministry of Health. The supreme scientific authority in the field of forensic medicine is the Superior Forensic Commission, which operates under the Institute of Forensic Medicine „Mina Minovici” Bucharest. This article aims to clarify the probative value, in a criminal trial, of the advisory opinions issued by this supreme authority, because there have been and are situations, in the judicial practice, in which there has been given superior probative value to this advisory opinion, as well as situations in which its conclusions were removed with reasons.
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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).
