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An attack on a moral right must attain a certain level of seriousness in order to attract the application of a sanction. When the exercise of a moral right, freedom of expression especially, interfere with the exercise of some other moral rights, in order to determine if the right was exercised with intention to harm or excessive and unreasonable, a fair balance exercise between two values which may come into conflict must be carried out under the proportionality test: if there is a public or private interest to justify the attain to the moral right of another person. In these cases, harmful events can occur even without author guilt. The application of national provisions which protects specific moral rights should not be used solely to determine whether or not there is a violation of the rights of personality, to determine whether or not the conditions of general tort law are fulfilled. The new national provisions can be useful to determine the proportionality of the sanction, and even for establishing non-material remedies when the specific conditions of general tort law are not fulfilled. There is a relationship of complementarity, maybe even subsidiarity between general tort law and the specific remedies of civil moral rights stipulated in the Civil Code. Conceptualizing moral rights regime by enactment of statutory moral rights as „civil subjective rights” with specific remedies aims to achieve a better moral rights protection. Essentially general tort law does not deny specific protection concided by personality moral rights. -
The article addresses the issue related to the manner to reach an effective cooperation between two judicial institutions which play a very important role in the context of ensuring respect for the rights and freedoms of the citizen, respectively between the European Court of Human Rights and the Court of Justice of the European Union. The study starts from the premise according to which the creation of the Single European Area of Freedom, Security and Justice, through the conclusion of international treaties, and subsequently the accession thereto by the states on the European continent and the third countries was not only of a nature to bring benefits to the citizens, by exercising the right to free movement and its derivatives at socio-economic level, but also to generate shortcomings, determined by the cross-border nature of the criminality, acquired in the light of free movement precisely. The relationship between the two jurisdictional institutions is viewed in the context of international cooperation in criminal matters, with broad references to the principles enshrined in the European Union law and which have the role of simplifying and intensifying this cooperation. Among the principles analyzed we indicate: the Principle of pre-eminence of international treaties and conventions over the national law, the Principle of mutual recognition of criminal judicial decisions and of mutual trust between states, the Principle ne bis in idem. The article also contains references to another important aspect resulting from the realities of international judicial cooperation in criminal matters, namely to the fact that, although each Member State of the European Union is a party to the European Convention, the Union, as an international organization, is not a party to the Convention, which means that European citizens cannot file a complaint to the European Court of Human Rights against an institution of the Union, when they consider that any of their rights enshrined in the Convention has been violated.
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We are witnessing tremendous progress in the fields of biology and medicine, which consist the possibility to take human cells, tissues and organs for the purpose of their transplantation into another subject’s body, genetic engineering operations, medically assisted human procreation and many other such revolutionary techniques. All of these have proven to be two-edged weapons: on the one hand, they can be used to save lives or to help some couples who, under normal conditions, cannot procreate to give birth to the much-desired children and, on the other hand, they can turn into threats to the human genome or to the social cohesion. It has become necessary for man himself to be the object of legal protection, and, at the same time, a new category of things has emerged, namely the biological products of the human body and the elements detached therefrom, which are intended to be used for therapeutic or research purposes. Thus arose the problem of the legal qualification of these things, which also raised the issue of the existence of a relationship between the subject of law and his body. The doctrinaires are divided into two camps: one that considers that between the subject of law and his body, qualified as a thing, there is a legal relationship of property and another that claims that the human body is the person himself. The qualification of the human body as a thing, the transformation into things of some of its products and of some elements detached therefrom, as well as the possibility of capitalizing on some personality rights, such as the right to voice and the right to image, are part of a process which was called the reification of the person. It is a constantly evolving process which has already included the controversial gestation for another as well. The present study is devoted to the identification of the dangers generated by the qualification of the human body as a thing, with special regard to the gestation for another. -
The elaboration of the notarial acts takes place in compliance with some requirements strictly provided in the normative acts. These requirements for the preparation of notarial acts are called rules for drawing up and affect to all notarial acts and actions. The topic covered in this paper is of interest to theorists and law practitioners from the Republic of Moldova and from Romania. In the Republic of Moldova there is a long process of formation and consolidation of notarial legislation. In the absence of a well-elaborated normative framework, the notaries public from the Republic of Moldova apply, here and there, the rules for drawing up the notarial acts inherited ever since the period of the Soviet Union. Another situation exists in Romania, whereas the legislator, by the Law No 36/1995, has established a stable normative framework for regulating notarial law relations. The main objective pursued by the author in the elaboration of the paper consists in the comparative analysis of the common rules for the drawing up the notarial acts through the Romanian and Moldavian legislation. The results of the research are manifested by formulating some conclusions and recommendations for amending the legislation. The theoretical implications of the study are relevant due to the diversity of the doctrinal sources used by the author. An increased attention was paid to Moldavian and Romanian researchers. In addition, the doctrine of the notarial law in the Russian Federation has been considered, which, over many decades, has become traditional in the Republic of Moldova.
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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.
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The new Romanian Civil Procedure Code has the indisputable merit of rebalancing the relationship between parties and courts, as well as dynamising the settlement of civil disputes. From both these perspectives, provisions of Article 200 of the Civil Procedure Code, pertaining to the check and regularisation of application for summons, mark a specific stage of solving some of the „prior” issues. Some of these not only notable but even surprising provisions will be further discussed. -
Starting with 25.05.2018 the Regulation (EU) No 679/2016, also referred to as Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data has entered into force. This regulation, although replacing the previous applicable directive in the matter, respectively Directive 95/46/EC, taking over from its functioning principles, brings significant novelties from the point of view of the general framework in the matter of protection of personal data, circumstantiating and detailing many of the mandatory rules in the matter. By proposing to create a common framework at unional level, the Regulation No 679/2016 provides the necessary clarifications on the background of the galloping technological evolution and the accelerated growth of cross-border personal data flows. To that end, the aim pursued by the mentioned Regulation is to create a coherent and sound framework in the matter of data protection in the Union, in the context of a climate of confidence which will allow digital economy to expand on the internal market. It is, thus, intended to ensure that individuals benefit by a greater control over personal data, as well as to consolidate legal and practical security for the natural persons, the economic operators and the public authorities. Likewise, the Regulation strictly stipulates the premises in which any processing of personal data may be considered as being lawful and, thus, allowed, at the same time with the circumstantiation of the conditions in which the person concerned may be considered to have given his consent to the forecast processing. Also, a central element of the new European legislative initiative is to provide the necessary measures to ensure the transparency of the processing of personal data. In this respect, there are configured the obligations devolving on the operators of such data to inform the persons whose data are processed, as well as the cases and conditions in which the natural persons are entitled to rectify, erase or restrict the use of data concerning them. -
From the Decision No 42/2008 of the High Court of Cassation and Justice, United Sections, it emerges the rule cancellation excludes revocation in respect of which, given the finality of decisions in the interest of law to ensure a unitary practice, it must be admitted that the applicability is wider than the hypothesis that has generated it. -
The author carries out a thorough analysis of all the regulations under art. 1381-1395 of the new Civil Code regarding the recovery of damages caused by extra-contractual causes. Thus, in the first part of the study, the author approaches joint liability, in case two or more persons are liable for one and the same damage. Also, a large part of the work deals with the principles governing the right and correlative obligation to recover the damages: the principle of full recovery and the principle of recovery in kind of the damages; both principles are explicitly provided in the texts of art. 1385 and 1386 of the new Civil Code. The central part of the work deals with a review of the recovery of damages by means of a money equivalent, referring in particular to the establishment of compensation for the full repair of personal injuries, both in their material and in their moral form; in the same context, large discussions are presented in relation to the pecuniary recovery of indirect damages. Another special place in the work is held by the presentation of the regulation regarding the correlation between the social security rights of the immediate or the indirect victim and the compensation that may be granted to such victim for recovery of the damages caused. The study ends with a review of the extinctive prescription of the right to claim and obtain in court the recovery of damages under tort liability. -
The author carries out a thorough analysis of all the regulations under art. 1381-1395 of the new Civil Code regarding the recovery of damages caused by extra-contractual causes. Thus, in the first part of the study, the author approaches joint liability, in case two or more persons are liable for one and the same damage. Also, a large part of the work deals with the principles governing the right and correlative obligation to recover the damages: the principle of full recovery and the principle of recovery in kind of the damages; both principles are explicitly provided in the texts of art. 1385 and 1386 of the new Civil Code. The central part of the work deals with a review of the recovery of damages by means of a money equivalent, referring in particular to the establishment of compensation for the full repair of personal injuries, both in their material and in their moral form; in the same context, large discussions are presented in relation to the pecuniary recovery of indirect damages. Another special place in the work is held by the presentation of the regulation regarding the correlation between the social security rights of the immediate or the indirect victim and the compensation that may be granted to such victim for recovery of the damages caused. The study ends with a review of the extinctive prescription of the right to claim and obtain in court the recovery of damages under tort liability. -
The current Civil Procedure Code clarifies some doctrinal controversies and controversies of the arbitral case law and transposes on legislative level some solutions of the arbitral practice, meant to make the arbitral jurisdiction more efficient. Among these aspects of making it more efficient, the study mentions those related to the extension of the competence of arbitration and the autonomy of will of the parties in organizing and conducting the arbitral procedure, likely to increase the access to this private jurisdiction, as an alternative to the state jurisdiction. Another dimension of the current regulation is related to the ways of materializing the arbitral convention and of the presumption of arbitrariness of the disputes regarding all misunderstandings arising from the contract or from the legal relations to which the agreement refers. The current regulation is concerned with the quality of the jurisdictional act which it connects to the qualification of the members of the arbitration tribunal, to their impartiality, by extending the causes of incompatibility as compared to those of judges and by guaranteeing the right to defence, by representing or assisting the parties by a lawyer. The autonomy of will, which impregnates the arbitral procedure, is associated with the principles of the civil trial, extended by the current regulation to the arbitral procedure, in order to increase the procedural guarantees offered by this private jurisdiction. An innovative solution is related to the participation of third parties in the arbitral procedure, under the terms of maintaining the composition of the arbitral tribunal, in order to ensure the complete and global settlement of the dispute. Another novelty of the current regulation is related to the material competence of the courts of appeal in resolving the action for annulment and the solutions that can be pronounced in case of admitting the action for annulment. Last but not least, the regulation makes the distinction between the procedure of the institutionalized and ad-hoc arbitration, in the context of the autonomy of will of the parties.
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The normative act which regulates the Romanian citizenship is the Law No 21/1991, republished on 13 August 2010. Recently (on 15 September 2015), the Law on the Romanian citizenship No 21/1991, republished, has undergone important amendments and supplements brought by the Government Emergency Ordinance No 37/2015, an ordinance whose content is the subject of this study. -
The authors of the new Criminal Code intended to redesign the punitive model of relapse, but the solutions proposed reveal the inconsistencies of the model. The new Criminal Code no longer defines the post-condemnation relapse distinctly from the post-execution relapse, and the small relapse no longer exists in the new regulation, the lawmaker preferring a general definition of relapse. Although the intention of the code’s authors, transmitted to the lawmaker, was to aggravate the punishment regimen of relapse, by increasing the duration of imprisonment, which may represent a first term for relapse in one year, in practice a more favorable regimen is created for those who have been punished to imprisonment for less than one year, a thing, however, not justified given the statistic evolution of the number of persons with a judicial record who reiterate their criminal behavior. The idea of the project’s authors was to simplify the regimen of punishment of relapses, based on an arithmetic sum in the case of post-condemnation relapse, and on the legal increase of special punishment limits by half in the case of post-execution relapse, but the proposed model of punishments leads to a more severe punishment regiment for post-condemnation relapse than for the post-execution relapse, although the latter is believed to represent the worse modality of relapse, as the social danger of the relapsing criminal appears, in this case, to be more precisely shaped, by proving the inefficiency of the punishment the criminal has executed.
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The engagement – although traditionally used in social life k did not have any legal regulation in the modern Romanian legislation, prior to the enforcement of the new Civil Code (October 1st 2011), namely: the Civil Code of 1864 and next, the Family Code. Instead, the new Civil Code (Law no. 287/2009, republished on July 15th 2011) regulates engagement in art. 266-270. The authors of this study analyze the aforementioned enactment of engagement, concluding that the express regulation of this private law institution in the new Civil Code is beneficial. -
The institution of suspension of the individual labour contract is regulated by Articles 49–54 of the Labour Code (Law No 53/2003, republished on 18 May 2011). More or less recently, the Law No 255/2013 for the implementation of Law No 135/2010 on the Criminal Procedure Code (entered into force on 1 February 2014) and for amending and supplementing some normative acts which include criminal procedural provisions, supplemented the Labour Code (republished) by adding Article 52 (1) c1), pursuant to which the suspension of the individual labour contract occurs (on the employer’s initiative) also „in case the measure of judicial control or of judicial control on bail has been taken against the employee, under the terms of the Criminal Procedure Code, if there have been established, as his duty, obligations which prevent the performance of the labour contract, as well as in case the employee is under house arrest, and the content of the measure prevents the performance of the labour contract”. In this study, the author analyses this new and recently regulated case of suspension of the individual labour contract on the employer’s initiative. -
The entry into force of the Civil Code leads to significant changes in the existence and manifestation of the right of first refusal, by explicitly enshrining the right of legal first refusal, and the right of conventional first refusal, on one hand and secondly by extending the scope. The emergence of new regulations requires consultation of French regulations, doctrine and practice in these matters so as to achieve an overall understanding of the concept, its functionality and role, and also an analysis of the effects of these provisions on the doctrine and domestic practice. -
Law no. 202/2010 regarding some measures aiming at the celerity of cases’ settlement establishes, inter alia, a number of important (fundamental) amendments and completions to the Family Code and the Code of Civil Procedure in force in relation to dissolution of marriage through divorce under parties’ agreement. The study hereby reviews – comprehensively – amendments and completions in question, highlighting in relevant cases some critical approaches on the new regulations. -
The paper proposes to examine, based upon a comparison, the system of the appeal for annulment and of the motion for revision, according to the new Code of Civil Procedure and to the prior regulation, in the light of the principle of the right to a fair trial in due and foreseeable time. Considering the nature of the appeal for annulment and the motion for revision of the extraordinary remedies, also the principle of the legal relationships security is emphasized, which requires that the final and irrevocable court orders could not be put up for discussion, except in the presence of certain “fundamental flaws”, set forth by law expressly and in a restrictive manner. The paper describes the amendments and the supplements brought by the new Code of Civil Procedure and in so far as they meet the needs of the issues which received several interpretations in the practice under the regulation of the Code of Civil Procedure of the year 1865, such as the period for the exercise of the appeal for annulment or, on the contrary, they may generate a non-unitary practice, such as the obligation to assist/represent by a lawyer in the matter of the means of appeal related to the withdrawal. -
The appeal for annulment –Articles 503-508 of the new Romanian Code of Civil Procedure (Law no. 134/2010 republished on August 3, 2012 and which will enter into force on February 1, 2013) is one of three extraordinary remedies at law (appeal, appeal for annulment and motion for revision). Appeal for annulment was also regulated by the previous Code of Civil Procedure (of 1865, republished in 1948, countless times subsequently amended and supplemented). This study is a comparative analysis of the regulation on the appeal for annulment in the previous of Civil Procedure Code and the new Code of Civil Procedure, compassing both similarities and differences between the two regulations.
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The legal regime of the penalty clause is established under the purports of Articles 1538-1543 of the new Romanian Civil Code (yet unenforced). Analysis of these regulations is undertaken in the study hereby by putting forward three issues considered defining: the legal nature of the penalty clause, its incidental character and mutability. Taking as reference point the definition of penalty clause set forth in Article 1358 par. (1), it is argued that the Romanian legislature has endorsed dualistic theory, according to which the penalty clause is a civil reparation remedy or a sanctioning repair, for the case of unlawful non-performance of the main contract by the debtor. The incidental character of the penalty clause is explained on account of the dependency relationship that exists between it and the obligation arising out of the main contract. Consequently, in principle, the penalty clause follows the legal destiny of the main obligation, according to the principle accesorium sequitur. To this rule there is but one exception: resolution of the main contract does not affect the existence and enforcement of the penalty clause. In terms of mutability of the penalty clause, it is found that its judicial review is permissible only by way of reductibility, where it is manifestly excessive as compared to the foreseeable damage caused to the creditor through unlawful non-performance of the obligation arising from the main contract. -
In this study, the author examines the two special banking procedures (the special supervision and the special administration), which can be ordered by the National Bank of Romania with respect to the Romanian credit institutions, based on the Romanian legislation in the field (Art. 237 – Art. 24022 of the Government Emergency Ordinance no. 99/2006 on the credit institutions and the capital adequacy, successively modified and amended through four laws and three emergency ordinances between 2007–2011). -
The author, comparatively examining the provisions set forth under Articles 1402-1404 of the former Civil Code (1864), Article 45 of the former Commercial Code (from 1887), both currently repealed, with those set forth under Article 124 of Law No. 71/2011 relating to the implementation of the new Civil Code, concludes that, despite an explicit intervention, under the rule of the new Civil Code (Law No. 287/2009) disputed revocation is forbidden at present for all contentious rights, irrespective of their nature. Currently, disputed revocation is allowed only for assignment of rights concluded prior to October 1st, 2011 (when the new Civil Code was enacted) -
The national system of public administration is subject to the impact of the medical-sanitary crisis in various forms, on all levels of organization, being additionally responsible and obliged to identify solutions of a normative and administrative nature. One of the important negative effects generated by the current medical-sanitary crisis is the impossibility of the administration to ensure the continuity of activities whose realization is conditioned by administrative authorization, by extension/renewal of authorizations, approvals, agreements, etc., making use of some acts during the validity period, in the sense of giving them the effects provided by law, or the exercise of some personal rights, on the basis of some documents (such as identity documents) when they are in the period of validity. The lack of an infralegal normative framework, of secondary regulation, establishing the scope of the documents the validity of which is extended during and beyond the cessation of special states of emergency and of alert and the conditions in which the prorogation of validity operates, leads to a non-unitary application of the normative act of primary regulation, which includes a general formulation, and inevitably at an additional pressure on the specialized administrative contentious courts, which will be notified either by their holders/beneficiaries, or by third parties whose rights and legitimate interests are harmed.
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The new Romanian Civil Code (Law no. 287/2009), voted by the Parliament, promulgated, and published (on 24 July 2009), but not yet in force, regulates the following matrimonial regimes: the regime of legal community; the regime of conventional community; the regime of separation of property. In this study, the regime of separation of property is examined, in the light of art. 360–365 and art. 370–372 of the new Civil Code. In this regard, the author examines the categories of property under the regime of separation of property; the personal property of the spouses, the common property per shares of the spouses; the use of one spouse’s property by the other spouse; the liability of spouses for the personal obligations. -
Taking into consideration the subtle and random criteria as an incidence in the delimitation of influence peddling from the fraud offences, it is likely that in very similar cases of misleading, the criminal will be lucky due to the occurrence of the influence peddling or it is likely that should not have been lucky when he committed materialized deeds supplementing the constitutive content of the fraud offence in relation to similar material damages. It is likely to cause material damages also in the matter of the formal criminal deeds and in the process of the legal and judicial individualization of the punishment, also the amount of the material damages produced as a result of the concrete endangerment offence should be taken into account. -
The article aims to analyze the regime of regulation and of application of punishments ordered by the judgments of the international criminal courts, at a moment when the two ad-hoc tribunals, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, are in a period close to the end of their mandate, and the International Criminal Court is undergoing crystallization of a practice, after the first final judgments of its activity were delivered. There are reviewed, on the one hand, the regulations within the statutes of these courts on punishments, their doctrinal foundations, as well as controversial aspects or aspects which give rise to comments in their judicial practice. There are also mentioned some aspects concerning the enforcement of punishments, taking into account the special circumstances in which these courts carry on their activity. -
Cross-border private life is under the rule of legislative changes occurred in the European law and in the national private international law. The property regimes of the international couples benefit from parallel regulations – the Regulation „matrimonial regimes” and the Regulation „registered partnerships”, for the states participating in enhanced judicial cooperation, the national law respectively, for the other Member States. Although they have different sources (the marriage, the registered partnership), the matrimonial regime and the partnership regime have multiple areas of convergence (the role of the will of the parties in determining the law of the patrimonial regime and in designating the competent court of law, the objective location of regimes, the most connecting factors). At the same time, the elements that differentiate the property regime of the spouses and of the partners configurate the specifics of the couples’ unions and the instruments of achieving the predictability and security of the civil circuit with an element of extraneity.
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The apparition of the first Administrative Code of Romania – an essential legislative document for the activity of the public administration, for the life of the Romanian State, as a whole – brings, among other things, a significant novelty: the regulation of the legal regime applicable to contractual staff. Such a regime is a justified option of the legislator, taking into account the particularities of this category of personnel – an integral part of those who perform the work as employees. The study carefully analyzes the specific legal norms that apply to the contractual staff and solutions are offered for their practical application. It is concluded that two categories of legal norms produce their effects: the first is constituted by the norms specific to the contractual staff, and the second is formed of the norms that apply also to public servants. Although both categories of norms are part of the Administrative Code, they – respectively those that apply to the contractual staff – are also integrated as part of the labour law, being at the confluence of labour law with administrative law. The common law for the regulations regarding the contractual staff can be found in the norms of the Labour Code.
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In this paper we intend to determine if the legal regime applicable to the superficies consisting in the right to build on the land of another is different from that prescribed for the superficies established on an existing building. Although it defines it in Article 693 (1), as a form of the right of superficies, the Civil Code does not contain provisions with special reference to the exercise of the superficies consisting in the right to build. Only in the event of ending of this special superficies due to the expiry of its duration, Article 699 (1) and (2) of the Civil Code provides for a regime derogating from the general rules of artificial real estate accession. In these circumstances, the powers of the superficiary who acquired the right to build on the land of another were indirectly inferred from the restrictive provisions contained in Article 695 (2) of the Civil Code, applicable to the superficies established on an existing building. The conclusion we reached is that, when superficies takes the form of the right to build, the superficiary enjoys a preferential treatment compared to that applied to the one who has acquired a superficies on existing buildings. This regime remains favorable in case of ending of the right of superficies due to the expiry of its duration, based on the special rules derogating from the general ones regulating artificial real estate accession established as a result of the ending of the superficies. The common rules applicable to both forms of the right of superficies were not tackled in this paper. -
Within the study hereunder, the legal regime of joint ownership, in both its forms (common and temporary, respectively forced and perpetual) is analyzed, from a critical point of view, with special regard on the second type. The author analyzes the differences between the legal regime of these types of ownership established under the Civil Code (Law no. 287/2009, as republished) by comparison with the regulation of the Civil Code of 1864. The inconsistencies instituted under the new regulation, the illegitimate and unconstitutional nature of some of them, as well as the recent legislative amendments intervening in this respect are analyzed, all these being accompanied by examples extracted from the Romanian and foreign jurisprudence. -
The evolution of technology has facilitated the development of the so-called collaborative economy. Through collaborative online platforms, which „remove” the borders between states, various services such as short-term housing rental (Airbnb type), urban transport (Uber type), pet-sitting (PetBacker type), and others are provided. In Romania, the activities specific to the collaborative economy are in full development, in the context of the absence of some regulations specific in the matter. The purpose of the paper is to determine the role of the service provider in electronic contracts concluded through collaborative platforms and to which rules they must be subjected, taking as reference system the service provider with the habitual residence in Romania. It is analysed only the situation of service providers – natural persons, which can be grouped into two categories: a category of persons providing various services on an occasional basis, in leisure time, in order to obtain additional incomes (the so-called prosumers), category which is the basis of the collaborative economy, and the second category, which includes the persons who provide services on a regular basis, on a continuous basis, on their own and aiming at obtaining profit. The distinction between non-professional and professional service providers is difficult to achieve; there are no criteria in the legislation in the field of services for this purpose. The quality of professional or non-professional must therefore be analysed on a case-by-case basis, using the rules of the common law. The legal regime depends on the classification of the service provider into one category or another. The contracts in the collaborative economy are concluded by means of online collaborative platforms. Those operating in Romania mostly have their headquarters abroad, which awards international character to the contracts concluded. Using the regulations in force, there are analyzed the modalities to determine the law applicable to contracts and the authority competent to solve the disputes, which may arise between the service provider and the platform or between the service provider and their user. The study captures only a small part of the collaborative economy phenomenon and seeks to clarify some day-to-day situations, which can give rise to some complex legal problems.
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In the present study, the authors analyze extensively the situations of non-unitary practice that appeared both at the level of the Bureau of the judge of surveillance of deprivation of liberty and at the level of the courts, due to the different ways in which the magistrates understood to deal with the problem of the transfers of the persons deprived of liberty and the legal nature of the transfer decisions issued by the National Administration of Penitentiaries. The purpose of the present analysis is to clarify the regime applicable to requests made by the persons deprived of liberty to cancel the transfer decisions, because the lack of regulation in the Law No 254/2013 regarding the possibility of appeal, as well as of the competent court to resolve the appeals, led to the outline of divergent currents of opinion reflected in the non-unitary solutions given in complaints or appeals.
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In the study with the above title, the author makes a comparison between the regime of pleadings’ invalidity settled under the (Romanian) Code of Civil Procedure in force (since 1865), yet successively amended and supplemented by a series of laws (including Law no. 202/2010 regarding some measures to accelerate the settlement process) and the new Romanian Code of Civil Procedure (Law no. 134/2010, published on July 15th, 2010, but still unenforced), underlining – in a positive manner – modern and flexible legislation, superior to the latter, pointing out, though – critically – the sketchiness and occasional ambiguity of the new Code.
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In case of the minors aged between 14 and 18 years old, who are liable from the criminal point of view, the presumption according to which their judgment has not reached its maturation, but is in full process of development and stabilization is instituted. In view of these circumstances, minors under this category of age do not have the psycho-physical ability to fully become aware of the gravity of the perpetrated crimes and, especially, their injurious consequences on the social values protected by means of criminal regulations. Given this context, the author claims that the new Criminal Code excludes the possibility of enforcing punishments in case of under aged criminals and establishes a specific system of criminal penalties, entitled educational measures, classified into two categories: educational measures without deprivation of liberty and educational measures with deprivation of liberty.
