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Offences against police officers or gendarmes (in Romanian, ultraj) are regulated under Article 257 (4) of the Criminal Code, which provides that such offences shall be harsher punished, by increasing the special limits of the penalty by half. In order to apply the above-mentioned dispositions in a fair manner, the Panel for Clarification of Criminal Legal Aspects of the High Court of Cassation and Justice was requested to render a preliminary judgment by which to clarify if „the concept of police officer provided by Article 257 (4) of the Criminal Code shall be construed restrictively as referring only to police officers whose activity and status are regulated under Law No 218/2002 regarding the organisation and functioning of Romanian Police and under Law No 360/2002 regarding the Police Officer Status or more widely, as also including local police officers whose activity and status are regulated under Law No 155/2010 on Local Police and Law No 188/1999 on the Status of Civil Servants”. This article proposes an analysis of the relevant jurisprudence and provides arguments to support that the aggravated version of the crime regulated under Article 257 (4) of the Criminal Code shall be applied when the offence is committed against a local police officer. -
The author aims to present a historical perspective by connecting to the current juridical perspective, addressing and making an exegesis of one of the institutions which are convergent to the two essential procedural codifications, namely the Civil Procedure Code and the Criminal Procedure Code, but rather incompletely regulated by the legislator, namely the offence of hearing. Emphasizing the fact that in neither of the two Procedure Codes the notion of the offence of hearing is not expressely and categorically defined, the legislator has conceptualized the procedure which is going to be followed by the judge insofar as he directly finds, through his own senses, such an offence/deed provided by the criminal law, the two procedures presenting similarities, but also differences, some of them being non-resilient to scientific criticism, as we will try to demonstrate this conclusion in the content of the material, in which there have been inserted de lege ferenda proposals as well.
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Since the beginning of the 19th century, the phenomenon of immigration has increased in Argentine. In the 20th century, the majority of immigrants came from the European continent. Despite some tempering measures, the immigration to Argentina continues to manifest itself, producing legal consequences. The family relations of foreigners are ruled, like other types of social relations with a foreign element, by private international law. This paper aims to analyse the current state of marriage regulations in Argentine private international law (with brief historical forays to understand the evolution). The scientific impact of this paper is increased by the novelty of the studied legislation and by the low interest that the Romanian doctrine has shown for the legal realities in Latin America. Its conclusions are relevant both to researchers and legal practitioners and to the general public, interested in resolving the many legal issues involved in a marriage with an Argentine citizen or immigration to Argentina.
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By reference to the real guarantees, which, theoretically, ensure a greater security of the execution, the fidejussion prevails by a lower degree of formalism and by a much higher degree of flexibility. Through the fidejussion mechanism, the creditor will have as common guarantee at least two patrimonies: first of all, of course, the patrimony of the main debtor, but in addition to this patrimony it can also be satisfied from the patrimony of the fidejussor or fidejussors. No one can become a fidejussor-guarantor against his will. Regardless of its nature, the fidejussion has a contractual nature, being able to arise only through the agreement between the creditor and the fidejussor. The law or the judgment only requires to bring a personal guarantee. When a person is obliged, by law or by convention, to provide bail, and he does not voluntarily fulfil his obligation, the judgment of conviction does not convert the bail into a judicial one, it still remains legal or conventional, as the case may be. The judge only orders the execution of the legal provision or of the convention. Exceptionally, in certain situations, the law absolutely presumes the quality of a certain person as fidejussor. For example, there is a fidejussion, called an assimilated fidejussion, also in case a party undertakes to another party to grant a loan to a third party, in which case the creditor (the person to whom the commitment has been made) is guarantor (fidejussor) of the obligation to repay the loan received by the third party.
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Durata de suspendare a exercitării dreptului de a conduce autovehicule în situația nepredării permisului de conducere începe să curgă de la expirarea perioadei de 15/30 zile și nu de la data rămânerii definitive a hotărârii civile sau de la data înștiințării efectuate de organele de poliție către inculpat în legătură cu această perioadă.
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În practica judiciară nonpenală din România, cel mai invocat drept prevăzut de Convenția (europeană) pentru apărarea drepturilor omului și a libertăților fundamentale a fost, este și, cel mai probabil, va rămâne dreptul la un proces echitabil, prevăzut de art. 6. Acest lucru se datorează faptului că instanțele judecătorești trebuie să soluționeze un număr impresionant de litigii (în condițiile unor scheme de personal subdimensionate), mult peste media sistemelor judiciare din vestul Europei.
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The article presents some reflections on the positive procedural obligation of criminal prosecution bodies to identify the successors of the victim of the offence or the injured persons who have suffered damage by ricochet (indirect victims), in order for them to exercise civil action, in the light of the new Criminal Procedure Code.
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The new Criminal Code has substantially modified the modalities of judicial individualization of punishments applied to defendants, also bringing novelty elements regarding the calculation of the fine, the possibility of its cumulative application with the sentence of imprisonment, when the offence committed was intended to obtain a patrimonial benefit, or the possibility of replacing it with community service work. By this study, I intend, through a careful analysis of both the case law of the European Court of Human Rights and the doctrine, regarding Article 7 of the Convention, as well as of the principle of legality in general, to argue the impossibility of the judge to order the revocation of the suspension under supervision of the sentence in case that a penalty with the fine, applied to the same person, was replaced by the sentence of imprisonment.
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The article addresses the issue of cancellation of documents resulting from the commission of a crime, mainly concerning the special procedure regulated in Article 5491 of the Criminal Procedure Code. The legal nature of the institution of cancellation of documents resulting from the commission of an offence is the same, regardless of whether it is ordered by the court of law, pursuant to Article 25 paragraph 3 of the Criminal Procedure Code, or by the judge of the preliminary chamber, pursuant to Article 5491 of the Criminal Procedure Code. In the majority specialized literature it was embraced the opinion according to which within the procedure of abolition of documents regulated in Article 5491 of the Criminal Procedure Code only the document regarded as instrumentum probationis may be revoked, and not the legal operation attested by the respective document as negotium juris. Also, the majority doctrine considers that the procedure for the cancellation of documents can be applied only in case of committing forgery offences, not also in case the documents would come from committing other offences. This article seeks to question the correctness of these doctrinal opinions, bringing some arguments in the sense that the cancellation also refers to the legal operation (negotium) and may also concern documents resulting from the commission of offences other than those of forgery.
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For the Romanian legal system, the case law does not have the quality of a formal source of law. However, the legal reality, viewed also from a historical perspective, has demonstrated the essential role of judicial practice in the interpretation and application of the law, in building argumentative practices, in clarifying the will of the legislator and discovering the less obvious meanings of legal norms and, last but not least, in the unification of legal thinking and practice. That is why case law, along with doctrine, is an important component of the Romanian legal system. Starting from these considerations, in this study we aim to emphasize some aspects of the role of the constitutional case law in shaping and even in the development of some principle s of law. We emphasize in particular its contribution to the emergence and development of the constitutional review of laws, as well as to the edification of principles of law. We mainly analyze the role of judicial practice in the construction of the principle of proportionality in constitutional law, of the principle of equality and the interference between the principle of proportionality and the principle of equality. In this sense, we support the role of the case law not only in the correct interpretation and application of constitutional norms, but also in their construction, in discovering the existing normative meanings most often only implicitly in the formal expression of the legal norm of the above-mentioned constitutional principles. Thus, the case law in constitutional matters is not limited to the interpretation by classical methods of the norms of the Fundamental Law, but has an important contribution to the clarification and construction of some principles of law, to the constitutionalization of the entire legislative system and of judicial practice of all courts of law
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The sale-purchase contract is undoubtedly, in the 21st century and in the landscape of the Romanian law, the most frequent contract used in practice, having an essential and decisive role in the organization and development of social and economic life. The complexity, variations and particularities of this contract, starting from its conclusion and until the exhaustion of all its effects, contribute to shaping the overwhelming importance of the sale, of the „standard contract” which is the most used legal instrument for transferring goods. In this context, the effectiveness, usefulness and practical applicability of a sale-purchase contract depend essentially on its structural, „anatomical” elements, namely the essential, intrinsic and extrinsic conditions of validity which directly determine the effects of the sale. Depending on these structural elements there are researched and assessed the validity of any contract, in whose absence its legal effects cannot operate, and, if they operate, they will be abolished with all the consequences which they entail. Thus, the valid formation of the sale contract implies more than a simple analysis of the mechanism of realization of the will agreement; it necessarily involves a detailed examination of the structural elements of the contract which are referred in the law as being „the essential conditions for the validity of the contract”. Any dispute which may arise, having as object a sale-purchase contract, will be based primarily on the analysis of the legal fulfilment of the very conditions of validity of this contract, which will unequivocally determine the subsistence of the contract, as well as the extent and applicability of its effects
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Conflictul negativ de competență este reglementat de art. 133 pct. 2 din Codul de procedură civilă, ce stabilește că există conflict de competență când două sau mai multe instanțe și-au declinat reciproc competența de a judeca același proces sau, în cazul declinărilor succesive, dacă ultima instanță învestită își declină la rândul său competența în favoarea uneia dintre instanțele care anterior s-au declarat necompetente.
