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În primul meu articol, publicat în Dreptul dela 8 Decembrie 1913, arătam că unul dintre cele mai mici și mai sărăcăcioase bugete, în care spiritul de exagerată economie, de adevărată sgârcenie, se arată la fiecare pas, este acel al Justiției. Nu știu cum s’a făcut, că aproape toți miniștrii de justiție, deși avocați prin meseria lor obișnuită, deci cunoscând în deaproape pe magistrați și situațiunea lor materială mai mult decât precară, nu au intervenit până acum de a schimba normele și alcătuirea acestui buget sărăcăcios și nedrept. În adevăr, acest buget, care până mai eri era de 10 milioane, azi, după atâtea secțiuni noui de Curți și tribunale înființate, abia se ridică la 11 milioane și jumătate. Iar salariile magistraților și ale celorlalți funcționari judecătorești, de acum 24 ani, dela legea organizărei judecătorești din 1890, a d-lui Teodor Rosetti, au rămas aceleași! Și cât de mult s’a schimbat în 24 ani situațiunea economică a țărei! Banul s’a eftenit, iar prețul obiectelor de prima necesitate s’a întreit și împătrit chiar. -
The study addresses good faith as a uniform, but flexible, multi-faceted concept within contractual relationships. After analyzing the ambivalent character of the concept of good faith, in antithesis to the abuse of law in the form of bad faith and contractual wrongdoing, the study leans on the functions of good faith, which materialize the principle at its institutional and formal dimensions, namely the interpretative function of contracts, the completive, moderating or limitative, and adaptive function. In approaching the contractual illicit and the bad faith, as a basis of contractual liability, the study shows that good faith is a standard in quantifying them, and the legal language of good faith is a supreme norm of the contractual law, in a means of contractual jurisdiction, meant to limit the principle of contractual freedom. -
The study aims to analyze good and bad faith, which are in a relationship of complementarity, but each with its own individuality, in the phases of negotiation, conclusion and performance of the contract. In the analysis of the forms of manifestation of bad faith in the pre-contractual stage made in the light of the regulation of the Civil Code, there is a tendency to mark the delimitation between contractual freedom, the right to interrupt negotiations, in case of their failure, and bad faith in interrupting negotiations. The study also addresses the complex issues related to the obligation of the parties to information, self-information, dolus through reluctance, to violence, arising from the economic inequality of the parties and harmful conduct and the repercussions, in terms of free and conscious consent, with the corresponding legal sanctions. The problem of repairing the damage caused by the interruption in bad faith or without justification of the negotiations is analyzed in its material and moral dimension, but also in terms of the damage caused by the loss of a chance.
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The field of contractual freedom has raised a permanent interest and continues to cause numerous discussions in the doctrine, and the practice of the courts emphasizes the importance of applying this principle to the specific civil legal relations. The undeniable importance of the contract as source of law involves inclusively the investigation of the manner in which the good faith and the abuse of right influence not only the formation, but also the performance or cessation of the contractual legal relations. -
The Competition Law no. 21/1996 and the secondary regulations issued for its enforcement advise the parties involved in a merger, assessed as having serious doubts with a normal competitive environment, to propose to the Competition Council a number of commitments aimed at removing these doubts and ultimately lead to achieving a decision authorizing the notified transaction. The purpose of this article is to analyze, on the one hand, the current legal framework of the commitments which may be undertaken by the parties in the context of certain mergers, the procedure for the proposal, the undertake and the approval of the commitments and, on the other hand, the practice of the Competition Council on this topic. -
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In the present study we will try to find the answer to the question: „What can a natural person do when his/her right to the protection of personal data has been violated?”. The natural person having his/her habitual residence in Romania, who suffered damages in a cross-border context, will be taken as a reference system, in an attempt of „guiding” him/her to the competent authority for dealing with the judicial issues that have arisen. The legal basis for answering the question will be the Regulation (EU) No 679/2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. In the first part of the study the terms used to explain the right to the protection of personal data and its violation will be clarified, and in the second part the administrative and/or judicial ways that the natural person can follow in order to restore the violated right will be discussed.
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Referitor la perioada de timp în care inculpatul poate fi tras la răspundere penală, potrivit art. 154 teza finală C.pen. anterior [art. 186 alin. (1) teza finală C.pen. actual], luna și anul se socotesc împlinite cu o zi înainte de ziua corespunzătoare datei de la care au început să curgă. Altfel spus, ceea ce se calculează potrivit art. 122 rap. la art. 154 C.pen. anterior este perioada de timp în care inculpatul poate fi tras la răspundere penală, ceea ce se situează ulterior acestei perioade urmând a intra pe domeniul prescripției speciale a răspunderii penale.
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The emergence of the Law No 76/2012 for the implementation of the Law No 134/2010 on the Code of Civil Procedure had great influence on the Government Emergency Ordinance No 34/2006 on the award of public procurement contracts. The latter stated that, in the matter of claims for compensation for damage caused during the public procurement procedure, the way of attack is an appeal on law submitted within 5 days of the communication. Difficulties with the publication and entry into force of the Law No 76/2012 were felt because it provided that the appeal would be the remedy in the matter, but before it came into force, the Government Emergency Ordinance No 34/2006 was amended by the Government Emergency Ordinance No 77/2012 which was approved by the Law 193/2013 and which left unchanged the way of attack. To solve the problems related to the succession in time of the laws, the High Court of Cassation and Justice by the Decision No 20/2015 of 5 October 2015 on the examination of the appeal in the interest of the law formulated by the Board of the Suceava Court of Appeal determined that the appeal on law is the only way of attack in the matter. Problems of interpretation have not stopped here because, while the High Court has made compulsory the way of attack, it did not make any mention of the term of exercise. Thus, a non-unitary practice has emerged because some courts have considered that the term of exercise is that of appeal, i.e. 5 days, while others have applied the general term. In our view, the time limit for exercising the appeal on law cannot be considered to be 5 days, because in this situation it would only mean that there was a replacement of the term „appeal” with „appeal on law”, but the general term provided by the Code of Civil Procedure shall apply.
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The study aims to present a case solved by German courts. It was raised the issue of the legal qualification of the winning under a beer cap, on terms of several people having put together the money for purchasing two boxes of beer and having bought them for that amount, including the bottle with the cap which contained the prize. In the case briefly presented it was necessary to determine whether the winning belongs only to the person who discovered the prize under the cap or to all the persons who have contributed with money to purchase the bottle containing the winning cap.
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Over time, the claim for awarding legal costs in the civil trial has not been paid due attention. Starting with 1959, following a decision of the Plenum of the Supreme Tribunal, in the practice of the courts, as well as in the specialized works has been taken over automatically, until it has been imprinted in the collective mind, the idea that the court costs can be claimed at any time until the debates are closed on the merits, and the court may even draw attention to this issue, or they may be claimed separately, even if they were initially requested within the dispute. The present study aims to analyze the legal status of awarding the claim for costs, while giving at the same time the correct legal classification of this claim by reference to the texts of the Civil Procedure Code. Thus, we will show that this claim brought to the justice can not be subject to the discretionary will of the parties, but must be circumscribed by the procedural rigors with regard to filing a claim before the court. In the first instance, the party must accordingly request court costs, respectively by way of introductory application, an objection, an intervention, etc. If it did not do it, as a rule, it will not be able to claim them within that litigation. If it did it, but then waives their request in the initial litigation, wishing to claim them separately, it will be subject to the consent of the opponent. In the redress or withdrawal means of appeal, claiming the court costs is conditionned twice, both in the compliance claim before the court of first instance and in the compliance claim before each court that has examined the case (by way of appeal, objection, etc.). The practical implications of the study are some of the most spectacular, since the party that does not comply with the procedural rigors of the claim for court costs will either be in a position to promote separate action for their recovery or in the event of a final impossibility to recover, in whole or in part, the advanced court costs. -
The article analyzes the qualification of the appeal on law in civil disputes where the judicial remedy of appeal ex novo is not opened, such as the waiver of judgment and the waiver of the claimed right, where the judgment is only subject to the appeal on law. The appeal on law promoted in administrative disputes is also analyzed. The author comes to the conclusion that, even when the judicial remedy of appeal ex novo is suppressed, the appeal on law preserves its nature of extraordinary remedy. -
In this article the author analyses who can have active and passive quality in administrative contentious disputes according to the provisions of Law No 554/2004 of administrative contentious, as amended by Law No 212/2018 for amending and completing the Law on administrative contentious No 554/2004 and other normative acts. The article highlights the correlations existing between the Law of administrative contentious, the Civil Code and the Civil Procedure Code in the subject matter. The article provides solutions to many practical problems.
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The active procedural quality in the direct guarantee action is one of the basic elements of the legal mechanism, regardless of whether we are talking about the active or the passive one. At first glance, we would say that the mechanism of direct action in general should not create too much discussion about its protagonists. However, in legal practice there has been a confusion about the subjects of the direct action, which has led to the questioning of the creditor’s active procedural capacity within the legal mechanism. Through this study, we are trying to shed some light on the practical application of direct collateral action, but also on the interest and procedural quality of the creditor and the debtor within the legal mechanism. Also, since the direct action in classic guarantee does not have a legal basis, unlike the direct action in payment, being derived from the notion of group of contracts, we will show why, in order to avoid contesting the procedural quality of the creditor within the legal mechanism of the direct action under warranty, the contracting parties must expressly insert a clause in the contract giving their consent to the transfer of the right of action to the sub-acquirer, in order to strengthen the transfer of the right of action under the guarantee for hidden defects. At the same time, as the direct action is an exception to the principle of relativity of the effects of the contract, the legislator is obliged to intervene, by introducing expressly some texts in the Civil Code, both in terms of the guarantee for eviction and in terms of the guarantee for hidden defects, so that the direct action in the guarantee finds its practical application. Only in this way will creditors be able to be protected from the effects of the exception of the lack of active procedural capacity, in terms of both guarantees provided by law (hidden defects and eviction). -
The Decision No 641/2014 of the Constitutional Court has radically changed the preliminary chamber procedure, transforming it into a procedure much closer to which it must be, in the opinion of the European Court of Human Rights, a criminal procedure conducted before a judge, even if it does not end in the ruling on the merits of the criminal charge, but it solves aspects of a particular importance on the merits concerned. The change has consisted in the overturning of the characters initially imagined by the legislator, overturning that has transformed the preliminary chamber procedure from a procedure conducted without the participation of the prosecutor, of the parties and of the injured party, with a limited contradictoriality between the prosecutor and the defendant and predominantly written, into a procedure involving the participation of the processual actors, completely contradictory and oral, in which it becomes possible to provide evidence on the main object of this processual phase (the legality of the evidence provided in the criminal prosecution phase and the legality of carrying out the acts by the criminal prosecution bodies). Unfortunately, the latest changes brought to the preliminary chamber by the adoption of the Law No 75/2016, although they represent a step forward in the attempt to make this criminal processual phase to comply with the elements of a fair procedure, do not follow precisely the spirit of the decision of unconstitutionality, as the legislator has still left question marks about the fairness of the procedure as regards the hypothesis that there have not been filed applications and/or pleas and as regards the limitation of the means of evidence. -
The radical reformation of the criminal proceedings meant also the establishment of new legal institutions. One of them is the preliminary chamber, inspired by the Anglo-Saxon law systems, and by the continental law system. Conceived as a distinct phase of criminal proceedings, the preliminary verification raises real problems of constitutionality, being unable to fit into the mechanism of the judicial bodies stated in the Fundamental Law. In so far as it takes over functions of the judges and it excludes from debates the main subjects of criminal proceedings, it is also contrary to the requirements of the ECHR on the principles of equality of arms and equity. -
The idea of a neutral power from those derived from the separation of powers was preceded in the modern epoch by the placing of one of the Chambers of the Parliament in the role of balancing and preserving power. This second Chamber had to be different from the first one, in order for it to be superior. The manner of conceiving this superiority and the balancing and conservative role of this Chamber have been different from one epoch to another and from one system to another. In the following article, subsequent to a brief analysis of the concepts of neutral power and balancing power, I shall investigate the role played by the superior Chamber of Parliament in the constitutional history of Romania.
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The consent of the patient is a legal consent and therefore it has to comply with all the validity conditions thereof. Among these, the condition of the capacity of exercise of the minor patient benefits from a special regulation by Article 661, the 2nd sentence of the Law No 95/2006. The present study intends to analyze these special provisions, by corroborating them with the regulations applicable to the legal representatives of the minor and by reference to the common law in the matter of capacity of exercise, for the purpose of accomplishing the finality of the legal provisions (protected access to the medical service) and of avoiding some blockage situations, generated by a bureaucratic interpretation. -
The problem of the capacity of exercise of the minor patient, deprived of liberty, has relevance for all types of penitentiary police units, which can keep minors in their custody, but also for the public health network, because all these institutions can face the problem of obtaining the consent for the execution of a medical intervention on the minor deprived of liberty. The minor patient in the custody of the penitentiary police enjoys the same autonomy, in relation to the expression of informed consent, as the free minor patient, according to the principle of equivalence, his right to health care being guaranteed, without any discrimination in relation to his legal situation. In reference to the problems regarding the capacity of exercise of the minor deprived of liberty, required for the consent to the medical act, there are applicable both legal norms of civil law, as well as norms of medical law and criminal executional law.
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The anticipated legal capacity of the minor represents, together with the situation of the married minor, one of the exceptions of acquiring full legal capacity at the age of 18, expressly provided in Article 40 of the new Civil Code. Thus, for acquiring the „emancipation”, the minor can address the law court himself, by way of the non-contentious procedure, and with regard to the „reasonable grounds”, the legislator has not made an enumeration or an exemplification thereof, these remaining at the discretion of the guardianship courts. Given the implications which the measure of emancipation of the minor could have on himself and on others, this must be seen as an exceptional one, and although there is still no case law on the application of Article 40 of the Civil Code, de lege ferenda, the possibility to revert to the recognition of the anticipated legal capacity by the guardianship court would be, to the same extent, an appropriate measure of the higher interest of the minor. -
In the system of the Civil Code of 1864, the emancipated minor acquired a limited capacity, and emancipation was a period of transition between the complete incapacity and the full freedom. The system of 1954 maintains „tacit emancipation”, but removes the term that reminded of the past, and gives only to the woman the possibility to marry before the age of 18. In addition, through „restricted” exercise capacity, the minors aged 14–18, regardless of gender, acquire an „intermediate” capacity. In search of a balance between tradition and modernity, the current system maintains „tacit emancipation”, preserves the „antechamber” of full capacity and restores „express emancipation”. There are regulated two hypotheses in which a natural person can acquire full capacity of exercise before reaching the age of 18: the conclusion of a valid marriage and the judicial recognition. In both cases, the minimum age required is 16 years and specific „justified reasons” must be proved. -
Fără îndoială, după 2007, anul aderării României la Uniunea Europeană, unul din avantajele preluării în sistemul juridic național a unui set de reguli care funcționa de mai bine de 30 de ani la nivelul statelor membre ale Uniunii ar fi putut fi evitarea erorilor și disfuncționalităților care au marcat evoluția acestor reguli. Era de așteptat ca în materia achizițiilor publice erorile de aplicare a reglementărilor, care au fost corectate pe parcurs de Curtea de Justiție a Uniunii Europene, să nu mai fie reluate în aplicarea acestor reglementări în sistemul național. Cu toate acestea, de o manieră relativ nespectaculoasă, practica în materia achizițiilor publice reia o serie de erori legate de calificarea contractelor supuse directivelor în materie, deși acestea au fost clarificate de jurisprudența Curții de Justiție a Uniunii Europene.
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The article presents the continued offence from the perspective of the Decision No 368/2017 of C.C.R., presenting the history of the concept of continued offence and the elements characterizing this concept from the perspective of E.C.H.R. After an analysis of the opinions expressed, referring to the change in the legal classification of the continued offence, it is concluded that the change of the legal classification is required when one or more material acts were wrongfully included in the legal unit, although these constitute distinct offences, which are in concurrence, in intermediate plurality or in a state of recidivism with material acts that constitute continued offence. In case that, for one or more material acts, there is a case that prevents the exercise of criminal action, we consider that it is not necessary to change the legal classification, being sufficient that, by a minute, to order the acquittal or the termination of the criminal trial, and for the other material acts that continue to be a continued offence to have a solution of conviction, the postponement of application of punishment or renunciation to apply the punishment.
