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The article analyzes the waiver of penalty as a new institution in criminal matters, the utility, the legal enforcement mechanisms, and its legal effects in the field of criminal repression. -
The author, by accurately examining Book IV of the new Romanian Civil Code (regarding the inheritance and the liberalities), entered into force on 1 October 2011, notes that, as a rule, like in the previous Civil Code of 1864, there are some more important institutions of successoral law which, in his opinion, may be considered controversial (questionable), inopportune or unclear such as, for example: – the notions of „heir”; „successor”; „inheritor”; – whether the status of heir is affected or not by disinheritance or by the waiver of inheritance; – whether the contractual appointment and the preciput clause are two separate legal institutions or not; – whether the successoral reserve has an individual or collective nature; – whether the prohibition of the (mutual) consummated will is opportune or not; – whether the successoral option is always a disposition act or not; – the inopportunity of the multiple vocation to inheritance; – the questionable nature of the utility of the „seizin”. -
Știința juridică românească din ultimii 60 de ani este marcată major de activitatea desfășurată de Institutul de Cercetări Juridice al Academiei Române (în continuare denumit ICJ sau Institutul). Într-adevăr, creat într-o anumită conjunctură istorică, acesta a reprezentat prima „instituționalizare” a acțiunii de cercetare științifică a dreptului în țara noastră, și-a cucerit rolul de „centru” național de desfășurare și coordonare în domeniu, iar prin performanțele și rezultatele obținute s-a manifestat ca lider absolut în materie, beneficiind de contribuția fondatoare a unor personalități remarcabile ale științei dreptului românesc, precum Traian Ionașcu, Vintilă Dongoroz, Mihail Eliescu, Salvador Brădeanu, Eugen A. Barasch, Petre Anca, Yolanda Eminescu ș.a. -
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This study raises for discussion the current meaning of the term „commercial arbitration” within the text of Article 146 d) of the Constitution since, presently, under Article 3 of the current Romanian Civil Code, corroborated with Article 8 of the Law No 71/2011, and of other normative acts issued for the application and the development of the provisions of the Civil Code, the latter is „monistic”, in the sense that the new civil legislation has abandoned the traditional division into civil legal relations and commercial legal relations, a duality that existed in the legislation of private law in Romania until 1 October 2011. -
In this study the author examines mainly the problems of the meaning, scope of application and effects of the provisions of Article 123 of the new Law (No 85/2014) on the procedures for preventing insolvency and of insolvency referring, on the one hand, to the possibility of „denunciation” of the individual labour contracts of the debtor’s employees (undergoing insolvency) by the judicial administrator/judicial liquidator and, on the other hand, to the „dissolution” of the labour contracts of those in question, pointing out that we are in the presence of two distinct grounds for cessation of the labour contract of the employed personnel of the debtor. -
This paper aims to analyse the interconnectivity between the will of the donor and the general validity requirements for donations in the Romanian civil law. As part of the continental tradition of civil law, the 2009 Civil Code of Romania maintains the will theory at the forefront of its contract law. Within this framework, the legal concept of will encompasses the mental process of volition, during which the individual reflects and arrives at a decision, and the utterance of said decision. As a result, the notion of free will forms the foundation of contractual freedom. Through its gratuitous nature, a donation is both a contract and an act of liberality. As such, the legislator’s reluctance in the field of liberalities has influenced how the general requirements of validity were ultimately shaped. Liberalities are demarcated, from the volitional point of view, by the liberal intent of the donor, and from the economic standpoint, by the reduction of the donor’s patrimony. This impoverishment of the donor is the source of the legislator’s reluctance. Thus, our effort sets out to trace the influence of the liberal intent upon the general validity requirements of a donation contract. For this purpose, the present paper is divided into four main sections, corresponding to said requirements: cause, consent, capacity and object. While cause and consent derive naturally from the will theory, capacity and object were also subordinated to the liberal intent of the donor. As such, the common incapacity was entwined with a special variant which absolutely presumes the suggestion or captation of the donor’s mind. In regard to the object, the donor cannot dispose of the good belonging to another, unlike in the case of a sale contract. -
In this article, the author asserts with scientific and text arguments that, anytime art. 911 of the Criminal Procedure Code is interpreted as allowing the wire tapping or recording of calls or communications outside the criminal trial (namely without even starting in rem the criminal prosecution in rem), namely in the stage of preliminary acts, this is unconstitutional. -
Equality of citizens before the law and before the public authorities is a fundamental category of the theory on social democracy, but also a condition of the state of law, failing which constitutional democracy can not be conceived. The Romanian Constitution expressly enshrines this principle. However, there are also particular aspects of this principle enshrined in the Basic Law. Equality before the law and before the public authorities can not involve the idea of standardization, of uniformity of all citizens under the sign of the same legal regime, regardless of their socio-professional situation. The constitutional principle of equality implies that equal legal treatment should be applied to equal situations. This social and legal requirement implies numerous interferences between the principle of equality and other constitutional principles: the principle of identity and of diversity, the principle of pluralism, the principle of unity and, in particular, the principle of proportionality. In this study, using theoretical and jurisprudential arguments, we intend to demonstrate that in relation to contemporary social reality equality, as a constitutional principle, is a particular aspect of the principle of proportionality. The latter expresses in essence the ideas of: fairness, justice, reasonableness and fair adequacy of the decisions of the State to the factual situation and the legitimate aims proposed.
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According to Article 172 (12) of the Criminal Procedure Code „After the finalisation of the fact-finding report, whenever the judicial body considers necessary the opinion of an expert or whenever the conclusions of the fact-finding report are contested, an expertise shall be ordered to be made.” This legal text is not correlated with the rest of the provisions of the Criminal Procedure Code in force, nor with the other provisions of the previous codes, therefore, in the author’s opinion, this fact is likely to give rise to controversies. In a different line of ideas, the author argues that the legislator imposes as processual remedy that upon the finalization of the fact-finding report, in case its conclusions are only contested, to order an expertise to be conducted. This hypothesis is even more questionable as there is the possibility that the judicial body appreciates that the opinion of such an expert is not necessary. Thus, the legislator acts instead of the place of the judicial body in deciding on the admissibility of such means of evidence. Starting from such an inadvertence, in a given case, although the judicial body has concluded on the lack of utility and conclusiveness of an expertise, taking into account that one of the subjects to the trial, a defendant in this case, has contested the conclusions of some previous technical-scientific reports and even of an initial expertise report, both the prosecutor, during the phase of criminal prosecution, and the judge, during the phase of trial, had to admit, according to the text of the law, the contestation or the application of that subject to the trial respectively and thus to order an expertise to be conducted. The author believes that the mentioned text provision is also contrary to the contents of several normative acts that provide the independence of the judge and of the prosecutor in the activity of criminal investigation and in the phase of trial, as well as their exclusive competence to decide on the processual acts and measures, as the case is undergoing the phase of criminal prosecution, of preliminary chamber or of trial. Moreover, in support of the opinions which the author has expressed in this article, he also brings arguments of comparative law, showing that the analysis made has not identified legislations or points of view from other countries, convergent with the text of Article 172 (12) of the Criminal Procedure Code. In conclusion, for the reasons shown within this article, the author appreciates that it is required a reconsideration and reformulation of the text of Article 172 (12) of the Criminal Procedure Code from the legislator. -
The study has mainly in view the involuntary hospitalization of a person with mental disorders as a civil protection measure, as regulated by the Law on mental health and protection of persons with mental disorders No 487/2002, republished. In order to complete the characterization of this measure, the paper has also approached the aspects concerning the protection of the person suffering from mental disorders and that are governed by the Civil Code, but also by the new Criminal Code and the new Criminal Procedure Code. -
The current Civil Procedure Code has brought some changes in respect of the evidence with the interrogatory, changes which are discussed in this study. Thus, for example, the court has the possibility to proceed to the confrontation of the parties and, in case of the interrogatory of the persons who are abroad, according to the new regulation, the condition of domicile situated abroad is no longer necessary, being sufficient for the party to be abroad for a longer period of time. I have discussed punctually the administration of the evidence with the interrogatory in the case of the natural person, in the case of the legal person, in the situation of the persons who are abroad, as well as the effects of the absence from the interrogatory or of the refusal to answer to it. Since the confession is currently regulated by the Civil Procedure Code, unlike the former regulation, when it could be found in the Civil Code of 1864, I have presented the most important aspects concerning the judicial confession.
