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O cerere în constatare vizând obținerea unei hotãrâri judecãtorești care sã fie opusã organelor fiscale și în temeiul cãreia sã se beneficieze de scutiri la plata impozitelor pe terenuri și clãdiri nu poate fi primitã întrucât art. 111 C.pr.civ. condiționeazã formularea acțiunii în constatare de inexistenþa unei acțiuni în realizare (Înalta Curte de Casație și Justiție, Secția comercialã, decizia nr. 952 din 9 martie 2010). -
Potrivit art. 145 alin. 12 lit. f C.pr.pen., organul judiciar care a dispus mãsura preventivã a obligãrii de a nu pãrãsi localitatea poate impune învinuitului sau inculpatului ca pe durata mãsurii „sã nu exercite profesia, meseria sau sã nu desfãșoare activitatea în exercitarea cãreia a sãvârșit fapta”, și anume sã nu-și exercite atribuțiile de primar (cu notã criticã).
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Law does obviously not benefit from the privilege of having its own exhaustive language. We might say that most concepts used in law are borrowed from other branches of knowledge. The quite rare concepts that are its own often do not receive a definition that can be classified, according to the methodology of the act of definition itself, as “legal”. The amalgamation of legal terminology with the economic, political, sociological or philosophical terminology, without revising the concepts and without their clear understanding in the areas of knowledge from where they come makes the doctrine and the case law too often flat and stereotyped, if not even chaotic from the conceptual point of view. Lawyers are no longer seen as persons of learning, who try to explain the nature of things through justice, but as simple technicians, who apply concepts taken from other social-human sciences. Under these conditions, one of the fundamental problems for lawyers is to explain a fact that seems to be overlooked by our current culture: what is meant by a legal concept? Afterward, it becomes equally important to understand the way in which the non-legal concepts used in law should be revised, namely what the standards of the legal definition of concepts are. The above-mentioned article attempts to answer to these challenges.
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In the above-mentioned study, the author, bringing to discussion a number of provisions included in the recently adopted Law no. 202/2010 on certain measures to accelerate the settlement of trials (usually called, the Law of the “small reform” of civil procedure) detects a number of inconsistencies between some provisions of this law and the future new Civil Procedure Code (Law no. 134/2010), adopted by the Parliament, published in the “Official Journal of Romania” on 15 July 2010, but, unfortunately, not yet in force), inconsistencies that, inexorably, will generate difficulties and complications upon the entry into force of the new Civil Procedure Code.
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By the Government Emergency Ordinance no. 51/2008 regarding the legal public aid in civil matters, the Romanian lawmaker transposed the European Union Council Directive no. 2003/8/EC of 27 January 2003 in this matter. In the above-mentioned study, the author discusses – also in relation to the cases appearing before the courts – the following matters: – The elements taken into consideration when applying the applicant’s material situation; – The jurisdiction to solve the application for legal public aid in the form of exemption from, reduction etc. of the judicial stamp duty established in the appeal as the debts for the merits of the case; – The actual procedure of providing the legal aid in the form of legal assistance through a lawyer.
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The author examines the – complex – issue of the procedure – in Romania – in case of exequatur and the recognition of foreign judgments given in the Member States of the European Union, taking into consideration that in our country, at present, the common law in the matter is represented by Law no. 105/ 1992 regarding the regulation of the private international law relationships, while in case of judgments given in the other Member States of the European Union, a special law in the matter is considered, namely: the Council Regulation (E.C.) no. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, respectively the Council Regulation (E.C.) no. 44/2001 of 22 December 2000 concerning jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
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The cases examined in this study were generated by a recent decision of the Bucharest Court of Appeal. In essence, the author considers legally admissible the conclusion of agreements between the employer and the trade union, outside the formal framework established by Law no. 130/1996 regarding the collective labor agreement, but only subject to complying with certain limits, which he presents.
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Analyzing the jurisprudence of the European Court of Human Rights on freedom of expression (Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms), the author reveals the close connection between the concept of States’ margin of appreciation (paragraph 2 of Art. 10 of the Convention) and the quality of the Convention as “a living instrument”. Therefore, the purpose of the study is precisely the dialecticism of the relationship between the “freedom of expression” (proclaimed by the Convention) and the exercise of that freedom “that carries with it duties and responsibilities” and which, under national law, may be subject to “such formalities, conditions, restrictions or penalties” (granted under Art. 10 of the Convention, as well). In light of this line of thinking, the author carries forth an extensive case law of the European Court of Human Rights, expression of a broad relevant casuistry. -
In this study, the authors bring forward the main features of electronic monitoring programs and services for defendants and convicts, pointing out, concurrently, both their strengths and their weaknesses found in the implementation process. The authors also argue for a serious debate on national level, held on the imperativeness and opportunity to implement these services and programs in Romania, in the context of current penal reform.
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In 2010, considering the deadline for the entry into force of new procedure codes, there arose the need to establish procedural rules with immediate effect, under way for the implementation of codes and consistent with legislative solutions established thereupon, so as to smooth efficient enforcement of court proceedings and expedient settlement of cases. The Law regarding some measures aiming at the celerity of cases’ settlement no. 202/2010 frames a series of specific legislative measures, mainly pointing to simplify and increase the celerity of cases’ settlement, with direct impact on the execution of judgments, as well. In the study hereby, the authors analyze, from an applied perspective mainly, amendments and completions to the Code of Criminal Procedure under Law no. 202/2010 on the celerity of cases’ settlement. As regards the general part domain of the Criminal Procedure Code, there have been highlighted a series of situations, resulting from the introduction of the mediation agreement as basis for settling the criminal or the civil case, from the rethinking of the material competence of courts or from express regulation of specific cases on conflict of jurisdiction arisen during the criminal prosecution. Other comments concern completions brought in the field of evidence management, application of the institution of preventive measures’ cessation by right, or relating to enforcement of peremptory writ of mandate, payment of court fees and court fines. As a general observation, since legal provisions under review are at the beginning of their application, and the subject covered is very wide ranging, the work developed by the two authors could not set its purpose neither on their exhaustive analysis, nor on the issue, in all cases, of conclusions claimed as legal certainty, but rather attempted to bring to the attention of practitioners working hypotheses, problems that may arise and their possible solutions.
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Fundamentally, all intentional crimes may be under continuous form, the forest offence being one of them. In practice, we come across various ways of committing forest offences, through a single action or multiple actions, which may meet, separately or conjunctively, elements of the crime of illegal cutting or theft of trees, but usually, when the criminal offence is committed in a longer period of time, twice or several times, without considering whether each single action meets the constitutive elements of the crime for which the defendant is prosecuted, Art. 41 para. 2 of the Criminal Code shall apply automatically. Authors’ analysis refers to the offence’s content unit, namely that the execution deeds of the same kind must submit each the content of the same offence. In legal practice it was decided that there is no requirement that the execution deeds should be identical, but each to cover the contents of the same offense, even if some of them correspond to the variant type and the other to the qualified one and, therefore, in the test case reviewed by the authors it was enough to evidence the existence of two or more trees cutting and stealing acts carried out at different intervals, each causing a damage which exceeds the threshold value for which the act stands for a crime and it was not required that for each of them, the damage caused and the value of timber, respectively, exceed at least 50 times the average price of a cubic meter of standing timber, on the offence’s finding date. Therefore, in order to determine the continuous nature of the act, it is required to administer evidence that should establish the volume of timber (for the offense of theft), and the amount of damage (for the cutting offence), for each action – execution deed, respectively its petty offence or criminal nature.
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The existence of a state, situation or particular circumstance in which the offence is committed may ingrain it a character of legitimacy and in such circumstances it is lacking one of the essential features of the crime, the unjustified nature of the act committed. In the category of supporting causes which result in the removal of the essential trait of crime consisting in the anti-juridical character is also included the consent of the aggrieved party in respect with the commission of the crime set forth in the criminal law. In order to be ascertained as supporting cause, the aggrieved party’s consent must belong to the holder of the protected social value or to his legal or conventional representative, to be freely expressed, to be abreast with the time and to target a specific social value or values endangered by committing deliberate crimes. Consent of the aggrieved party does not preclude the unjustified character of the offence in case of criminal offenses against a person’s life, in the event of offenses whose justified effect is excluded by law, as well as in the event of criminal offences whose main passive entity is the state, and the aggrieved party acts as a secondary passive entity.
