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In this study we intend to discuss and to find a solution for the multiple aspects specific to the removal of application of the foreign law in the national law, but also to trace the influences of the European law on the domestic law. We will analyze in detail the independence of application of the foreign law from the condition of reciprocity, invoking the foreign law before the authorities of the forum, but also aspects concerning the contractual incorporation of the foreign law. We will define the notion of application of the foreign law and, likewise, we will subject to investigation the modalities in which this application occurs. In order to elaborate this study we will consider the relevant domestic law, the provisions of the international conventions concerning the application of the foreign law, the provisions in the matter of the European law, the legislation and the case law from different States, and we will raise for discussion the decision of the Constitutional Court of Romania No 294/2016 relating to the rejection of the plea of unconstitutionality of the provisions of Article 1.096 (1) c) of the Civil Procedure Code, which gives us a practical view on the subject-matter discussed. -
This study raises the question of registration in the land register of some rights which originate in the fact of artificial real estate accession. We were interested to note the extent to which the parties might, by their agreement, temporarily register a property right of the author of the construction over this construction until the land owner invokes the accession in its favour. It is raised the question of the interest of such registration, which can only be temporary, because the doctrine has considered it to be affected by an atypical resolutory condition, of legal origin, as well as of the effect produced by this registration. On the other hand, in the situations where we admit the acquiring of the property right by artificial real estate accession by judicial means, it is required the analysis of the possibility of the court to recognize a property right over a construction built without a construction authorisation. -
Potrivit art. 244 C.pen., inducerea în eroare a unei persoane prin prezentarea ca adevărată a unei fapte mincinoase sau ca mincinoasă a unei fapte adevărate, în scopul de a obține pentru sine sau pentru altul un folos patrimonial injust și dacă s-a pricinuit o pagubă, se pedepsește cu închisoarea de la 6 luni la 3 ani, iar înșelăciunea săvârșită prin folosirea de nume sau calități mincinoase ori de alte mijloace frauduloase se pedepsește cu închisoarea de la unu la 5 ani. Dacă mijlocul fraudulos constituie prin el însuși o infracțiune, se aplică regulile privind concursul de infracțiuni (cu notă aprobativă). -
The author performs a thorough analysis of the legal content regarding the crime of fraud, provided at art. 244 of the new Criminal Code, with frequent references to the domestic judicial practice and compared with the new criminal dispositions. With respect to the normative proceedings set forth at par. 3, 4 and 5 of art. 215 of the Criminal Code adopted on 1968, abolished by the new regulation, the author believes they have not been abrogated and they shall be found as factual methods in the legal content of the crime of fraud, provided at art. 244 of the new Criminal Code, as long as the other incrimination requirements therein indicated will be accomplished. However, the author expresses some reserves regarding removal of the circumstance from the fraud ks aggravated content, when it generates highly serious consequences, as well as regarding the oversized reduction of the special limits for the penalty provided for this serious crime. Furthermore, the object of criminal protection, the crime ks subjects, the objective and subjective aspect, the forms, methods, sanctions and some procedural aspects regarding the felony set forth at art. 244 of the new Criminal Code are examined. Moreover, the author does not hesitate to express his point of view regarding the constitutional content of this criminal felony and to suggest some solutions and own opinions. -
The author carries out a detailed analysis of the legal content of the insurance fraud offense, as provided for in Art.245 of the new Criminal Code as an assimilated and aggravated version of the deception offense. Regarding the structure of this offense, the criminal protection object, the subjects, the objective and subjective side, the forms, procedures and sanctions provided by law are reviewed in detail. The explanations discuss the insurance deception links to other offences relating to insurance and certain procedural aspects. The preceding legislation of this indictment rule, the solutions to be followed in case of transitional situations and some elements of comparative law are subsequently presented. Also, the author does not hesitate to state his point of view with regard to the constituent content of this criminal act, its systematization, its character and to frame in this regard certain solutions and certain ideas of his own. In the end, this analysis gives several conclusions and proposals of future law to determine an appropriate protection of the values „and social relationships covered by this indictment, a uniform implementation of the text and thus a better criminal justice administration in Romania. -
Starting on October 1, 2011, the new Romanian Civil Code (Law no. 287/ 2009, republished on July 15, 2011) entered into force and, as of February 1, 2013 the new Romanian Code of Civil Procedure (Law no. 134/2010, republished on 3 August 2012) shall come into force. Both the above mentioned codes are being developed by Law no. 71/2011 for the implementation of the new Civil Code, and respectively by Law.76/2012 for the implementation of the new Code of Civil Procedure. The new regulations introduced in the Romanian legislation the concept of guardianship court but until the entry into force of such court its powers which are set out in the new Civil Code shall be exerted by the courts, sections or, where appropriate, the existing specialized juvenile and family panels. Unfortunately, during 2011-2012, the regulations in the new Civil Code, the new Code of Civil Procedure and the two laws for application thereof, as being amended and supplemented several times, the guardianship court relevant legislation is confusing at the present time, thus its transposition in practice is difficult. That being the case, the author attempts in this study to solve a number of problems arising from the situation described and to make some proposals with a view to the future law. -
The study analyzes how it evolved the competence of the court of law to solve the review in the civil trial from the initial version of the Law No 134/2010 on the Civil Procedure Code to the amendment brought by the Law No 310/2018 for amending and supplementing the Law No 134/2010 on the Civil Procedure Code, as well as for the amendment and supplementation of other normative acts. The result of the study is reflected in the opinion according to which the court of law competent to solve the review in the civil trial had to remain, as a rule, the High Court of Cassation and Justice. Thus it would have been made a unitary interpretation and the contradictory solutions would have been avoided. Although in the versions of the Law No 134/2010 and until the adoption of the Law No 310/2018 the purpose of the review was to subject to the High Court of Cassation and Justice the examination, under the terms of the law, of the conformity of the contested judgment with the applicable rules of law, the supreme court has diverted this purpose, by admitting the exception of its material incompetence and declining to solve the reviews.
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The courts can not censure the decisions of the Constitutional Court in terms of the statements which they contain with regard to the unconstitutionality of a legal norm and the impact they have on the way of settling the ongoing disputes, respectively not finalized through the pronunciation of some irrevocable judgments, following the cessation of the application of that norm by declaring it unconstitutional. They have the obligation to apply the decisions of the Constitutional Court to their letter and spirit and they can not add by way of interpretation elements that are capable of restricting them or, respectively, to extend their scope. By the Decision of the Constitutional Court No 369/2017 it has been stated that all the judgments pronounced after the publication of the decision in the Official Gazette of Romania are subject to appeal, in the cash assessable applications, except for those exempted according to the criterion of matter, expressly provided in the theses covered by Article XVIII (2) of the Law No 2/2013. In the application of this decision, the High Court of Cassation and Justice – the Panel for the settlement of some matters of law, by the Decision No 52/2018 has stated that the effects of the decision of unconstitutionality will concern all judgments pronounced after the date of its publication, but in trials commenced after 20 July 2017. By this statement, the decision of the Constitutional Court No 369/2017 has been amended without justification under the pretext of the settlement of the matter of law concerning the application of that decision over time. By the Decision of the Constitutional Court No 454/2018 it was established that the High Court of Cassation and Justice does not have the power to rule on the effects of the decision of the Constitutional Court or to give binding rulings which are contrary to the decisions of the Constitutional Court, but has the obligation to apply that decision in such a way suitable to its considerations to the case subjected to judgment. The Decision No 454/2018 has an interpretative character and therefore, by way of derogation from the principle according to which the decisions of the Constitutional Court apply only for the future, it has a retroactive effect, in the sense that it is put into application from the date when the Decision of Constitutional Court No 369/2017 began to take effect. -
The Ombudsman is a fundamental institution of the state of law, meant to ensure the protection of natural or legal persons against the abusive manifestations of the public authorities. In this context, this study aims to analyze the main problems arisen in the practice of exercising the powers of this autonomous administrative authority, envisaging, in particular: the scope of public authorities and of the administrative acts falling within the scope of activity of this authority; the procedure for exercising the action for administrative disputes by the Ombudsman. Likewise, following the analysis of these aspects, there are formulated de lege ferenda proposals. -
The article presents the extended confiscation from the perspective of the Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Properties, supporting the opportunity of its transposition into the domestic law, considering justified the fact that the perpetrator of a crime is required to prove the illicit origin of products presumed to be connected with a crime of a certain seriousness, by reducing or reversing the burden of proof as regards the source of the properties held by a person convicted for an offense related to organized crime, under a special procedure established by law. -
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This study is an analysis of how the direct judicial control is exercised over the problems arisen in the execution of the custodial sentences, through a new institution, the one of the judge of supervision of deprivation of liberty, as well as an analysis of the limits of his competences. Likewise, the study also analyzes the juridical dimension of the administrativejurisdictional complaints filed by the persons deprived of liberty in order to defend their rights and interests. The study is based on the conclusions drawn from the activity of the author, as registrar, at the office of the judge of supervision of deprivation of liberty.
