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The judicial individualization of the sentence shall be carried out by a complex operation using all those individualization criteria set forth by law (general and special criteria); the need for taking into consideration all the grounds for sentence modification is included within these criteria, as well. Drawn by this need, the Romanian Criminal Code into force (since 1968) contains regulations regarding the manner in which the various grounds for sentence modification must be enforced, when they concur, regulations contained in the provisions of art. 80. Likewise, the new Romanian Criminal Code contains such regulations in art. 79. In this study, the authors have emphasized several systems of sentence determination in case of the concurrence between the grounds for sentence modification. Both the Criminal Code into force and the new Criminal Code adopted an objective criterion concerning the manner in which the various grounds for sentence modification must be enforced, being sensitive to multiple interpretations and contradictory solutions. The Romanian Criminal Code of 2004 – abrogated, before becoming effective, through the new Criminal Code – which forwarded a system based upon a subjective criterion, by granting the judge the freedom to assess the predominance (prevalence) of the grounds for sentence modification and to give them the due legal effect. From the point of view of the authors of the study, this system seems to be more adequate to settle the problems raised by the concurrence between the grounds for sentence modification. -
In this study the author examines the legal institution of the politics-related conviction from various points of view: legal nature, regulatory manner, effects, similarities and differences to the causes removing criminal liability or consequences of conviction. -
The need to analyze the condition of guilt in engaging the legal liability of the physician does not result only from the ECHR Judgment in Ioniță Case, which ruled that the physician’s liability itself is based on the notion of medical negligence, but especially because of its specific aspects. According to recent practice, the intensity of medical guilt in the degree of culpa levissima is able to lead to de facto exoneration from criminal liability (through a symbolic sanction) in order to focus on repairing the victim’s prejudice. The consequence of changing the vision on the medical legal liability from a punitive-criminal liability of the physician to a reparative liability facilitates the perception of the French conception of the contractual liability of the health unit. This does not remove the personal liability of the employed physician, but limits it to a psychic attitude of elusion of the system of cooperation and control of the health unit, which brings it closer to the indirect intention. Hence the need to distinguish between indirect intention and guilt with forethought (recklessness), which in its turn is different from guilt without forethought (negligence). -
The paper analyzes the conditions for exercising the revision in the criminal trial, respectively the judgments subject to revision, the category of persons who can exercise it, the time limits of declaration, the form in which the application and its content must be made. The study relates to the case law of the national courts before and after the entry into force of the new Criminal Procedure Code, as well as to the relevant provisions of other European legislations. At the same time, there are considered the provisions of the Draft Law for amending and completing the Criminal Procedure Code adopted in the summer of 2018, respectively PL-x No 373/2018.
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The provisions of art.1538 para. (1) of the new Civil Code define the criminal clause as being that according to which the parties set forth that the debtor undertakes to pay a certain allowance in case of the non-performance of the main obligation, and para. (4) of the same article sets forth: “the creditor may request the performance of the criminal clause without the obligation to prove any prejudice.” In order to grant the criminal clause, it is necessary to meet the following conditions: the existence of a criminal clause validly established, the non-performance, the inadequate performance or the delay performance of the contractual obligation, the debtor’s fault and his putting in default or being in default de jure. At the same time, the penalty cannot be requested if the performance of the obligation has become impossible for grounds which are not imputable to the debtor, such as the force majeure, the act of God, the deed of the victim or of a third party. -
In this study, the author examines the problems of granting in Romania the subsidiary protection for the asylum seekers in case of generalized violence in situations of armed conflict, stating that, according to the internal and international legal terminology, the subsidiary protection is a form of international protection from which the asylum seekers can benefit. In this respect there are presented: the legal framework – international, European and internal – in the matter, as well as the conditions of granting the protection in question for the asylum seekers in case of generalized violence in situations of armed conflict. -
Among the means of protection of a creditor’s rights, the present Civil Code regulates the (Paulian) revocatory action within Articles 1562–1565. This civil action has been regulated also in the previous Romanian Civil Code. However, in this study the author examines exhaustively the admissibility conditions of the revocatory action in the light of the present Romanian Civil Code, which entered into force on 1 October 2011. -
Through this study we have made a thorough analysis of the conditions of admissibility of the special cancellation (revocation) action regulated by the provisions of Article 117 of the Law No 85/2014 on the procedures for preventing insolvency and of insolvency, as well as an analysis of the possibility of cancelling (revoking) any fraudulent act concluded by the debtor in the 2 years prior to the opening of the insolvency procedure. Likewise, we have analyzed what operations concluded, in the two years prior to the opening of the procedure, with the persons who have legal relationships with the debtor may be cancelled and the benefits recovered, if they are to the detriment of the creditors, except for the acts concluded in good faith in the execution of an agreement with the creditors, concluded as a result of extrajudicial negotiations for restructuring the debtor’s debts.
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Through this study we have made a thorough analysis of the conditions of admissibility of the special cancellation (revocation) action regulated by the provisions of Article 117 of the Law No 85/2014 on the procedures for preventing insolvency and of insolvency, as well as an analysis of the possibility of cancelling (revoking) any fraudulent act concluded by the debtor in the 2 years prior to the opening of the insolvency procedure. Likewise, we have analyzed what operations concluded, in the two years prior to the opening of the procedure, with the persons who have legal relationships with the debtor may be cancelled and the benefits recovered, if they are to the detriment of the creditors, except for the acts concluded in good faith in the execution of an agreement with the creditors, concluded as a result of extrajudicial negotiations for restructuring the debtor’s debts
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The recordings made by technical means have not constituted, at least in civil matters, ever since the appearance of the devices that made them possible, an admissible evidence, not being regulated as such by the legislator in the past. In the new regulations, starting with the Law No 217/2003, including in the new Civil Procedure Code, in the conditions of the extended use of electronic means, both in the institutional framework and in the private life, the daily realities have imposed the use of the recordings with technical means as evidence. However, by operating a generalization, the possibility that the data of any kind to be fixed on a computer-based media has led to the penetration of this kind of probation both in the evidence with written documents, in the form of computer-based written documents, and in that of material means of evidence. The inclusion of the recordings, generically speaking, also in the category of material means of evidence generates problems both in terms of identifying their legal nature, with implications on their administration and storage regime, and in terms of establishing their admissibility conditions. The latter also raise the question of establishing the extent of the probationary area related thereto, respectively whether it should be restricted only to proving those legal relations which the facts of legal relevance involve, as well as which categories among these fall within the scope of circumstances likely to be proved in this way.
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Following the entry in force of the Civil Code (Law No.287/2009, republished) on the 1st of October 2011, which repealed the Family Code, and the accordingly amendment of the republished Law No. 119/1996 regarding the civil status acts, the author conducts an extensive analysis of the legal provisions related to the conditions of form which must be complied with for celebrating a valid marriage. This study examines the formalities provided by articles 278-292 of the Civil Code. -
The documents under private signature are an important category of preconstituted documents, characterized by the lack of formalism and the freedom of the parties to elaborate them. The form of the document under private signature is sometimes imposed by the law for the validity of the legal operation, and sometimes it is established ad probationem. In the cases where the written form is imposed ad validitatem, the legal document will not produce its effects envisaged by the parties upon its conclusion, unless it has been ascertained in writing. On the other hand, the non-compliance with the form of ad probationem generally brings about the impossibility of proving the legal act with another means of evidence. The written form may be an authentic document or a document under private signature. Also, the electronic document fulfils the condition of form ad validitatem or, as the case may be, ad probationem, if it was generated according to the provisions of the Law No 455/2001 on electronic signature. In principle, the only requirement for the validity of a document under private signature is the signature of the parties or, in some cases, only the signature of one of them. The signature expresses the will of the parties or, as the case may be, of the party to assume the contents of the document they have signed/he has signed. In the cases expressly provided, the legislator also imposes the fulfilment of some special conditions for the validity of the document under private signature. Thus, in the case of documents under private signature which establish the existence of sinalagmatic conventions, „plurality of copies” is required, and in the case of documents under private signature which establisg unilateral obligations (which have as object the payment of a sum of money or a quantity of fungible goods) it is required the formality or mention „good and approved for...”. The content of the document under private signature can be reproduced on any material support (paper, cloth, wood, metal, glass, CD, stick, etc.), in any form (handwritten, typed, printed, lithographed, electronic), in Romanian or in any other language or in a conventional language of the parties. Instead, the signature must be written by hand by the party or parties, not being allowed the typing, lithography or printing, or the replacement by a seal or by fingerprint. By way of exception to this rule, the legislator recognizes the validity of the electronic signature reproduced under the terms of the Law No 455/2001. -
Important matters of law generate the verification of the legality of the acts of the legal persons of private law specified in the title. Such verification, as revealed by the judicial practice in this matter, involves the relation of the theory concerning the legal acts within the scope of public law to the corresponding theory within the private law. This interdisciplinary approach is necessary in order to correctly identify the conditions of validity related to the legal acts qualified as being acts of authority, given their nature, purpose and addressees. -
Although the Paulian action is a legal mechanism, in principle very well known, when it comes to its practical application, in order to effectively promote such action, it is very important to have a thorough knowledge of the conditions that must be met for such action both to be promoted and to be allowed. This study is divided into two parts, in which first the general conditions and then the special conditions for the promotion of the Paulian action are presented. Also, in view of the legislative changes brought about by the entry into force of the new Romanian Civil Code, but also by amending the French Civil Code of 2016, we considered opportune a comparative presentation of the novelties brought by the two legal systems.
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The article is based on a constant case law of the Constitutional Court of Romania where the expression of “interstitial rule” appears as a leitmotif. Under this rule, any rule of law of the European Union whose content is sufficiently clear, precise and unambiguous, and at the same time proves a certain level of constitutional relevance, will be applied within a compliance control operated by the constitutional court. Therefore, these conditions are examined in detail and also some legal proposition is designed to facilitate the situation of the direct “beneficiary” of such an enforcement – the European litigant. -
In this study the author analyzes the requirements for the admissibility of provisional release under judicial control and provisional release on bail from the point of view of the Code of Criminal Procedure in force and the new Code of Criminal Procedure, the internal doctrine and the (European) Convention for the Protection of Human Rights and Fundamental Freedoms and the Supreme Court’s case law and practice of the European Court of Human Rights. The general conditions for ordering judicial control and judicial control on bail are also presented - preventive measures stipulated in the new Code of Criminal Procedure, which no longer provides for the institution of provisional release. -
The remand on custody and the preventive detention are placed among the most important institutions of criminal processual law. The adoption of the new criminal processual legislation regarding the remand on custody and the preventive detention raises the question of analysing the elements of novelty contained by the new legal provisions, as well as the question of their compliance with the case-law of the European Court of Human Rights. -
Hardship (as grounds for contractual amendment or termination thereof, even in default of contractual provisions in this respect) had not been legally regulated under the former Romanian Civil Code (dated 1864), but only under some special laws. However, during the past two decades, there was shaped in legal doctrine and the Romanian reference jurisprudence a theory of hardship (as shown), which substituted, in part and controversially, the legal deficiency in the matter. This deficiency wore away by the entry into force of the new Civil Code (Law no. 287/2009, republished on July 15th, 2011 and enforced on October 10th, 2011), which, by a single fundamental wording (Article 1271, entitled „Hardship”) regulates the conditions under which the Court may rule, where appropriate, upon the adoption of a contract or even termination thereof „should the performance of the contract become excessively burdensome due to an exceptional change of circumstances that would make manifestly unjust the binding of the debtor to the execution of its duty”. In the study above, the authors make an analysis of the configuration of hardship in the light of Article 1271 under the new Civil Code. -
Potrivit art. 342 alin. (6) C.pen., constituie infracțiune și se pedepsește cu închisoare de la 6 luni la 3 ani nedepunerea armei și a muniției la un armurier autorizat în termen de 10 zile de la expirarea perioadei de valabilitate a permisului de armă. Totodată, conform art. 112 alin. (1) lit. f) C.pen., bunurile a căror deținere este interzisă de legea penală sunt supuse confiscării speciale (cu notă parțial aprobativă). În cazul faptei prevăzute în art. 342 alin. (6) C.pen., cu privire la care s-a dispus o soluție de clasare întemeiată pe dispozițiile art. 16 alin. (1) lit. b) teza a II-a C.pr.pen., arma și muniția intră sub incidența confiscării speciale, în temeiul art. 112 alin. (1) lit. f) C.pen., în procedura reglementată de art. 5491 C.pr.pen., în ipoteza în care făptuitorul nu a depus arma și muniția la un armurier autorizat în termen de 10 zile de la expirarea perioadei de valabilitate a permisului de armă. (Înalta Curte de Casație și Justiție, Completul competent să judece recursul în interesul legii, Decizia nr. 10/2019).
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Extensive confiscation safety measure has a narrow enforcement scope, as it can be ordered only for the crimes expressly provided by law. On the other hand, extended confiscation can cover only property or the equivalent thereof, obtained by the convicted person whilst committing, in a specified time period, other crimes for which the law provides for such safety measures. Prerequisite to be met for the enforcement of extended confiscation is the existence of an obvious disproportion between income earned lawfully by the person convicted and the value of goods obtained through criminal activity for which the law provides for this safety measure. -
The article presents the evidentiary standards in case of the extended confiscation, claiming the necessity to establish the difference between the legal income and the value of assets acquired, also taking into account the expenses made by the accused and their family members, mentioning the assets or sums of money subject to extended confiscation, based on an evaluation report drawn up by an expert, by the indictment.
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This paper analyses the offence of conflict of interests, as incriminated in the new Criminal Code, by comparison with the old regulation, as well as the similar incrimination in the French Criminal Code, the study being illustrated with Romanian and French case law. Likewise, the author formulates some de lege ferenda proposals in order to improve the legislation in the field. -
By carrying out a review of Articles 312 to 328 of the new Romanian Civil Code, the author concludes that this Code allows conflict of laws relating to primary matrimonial regime; enforcement of mentioned rules is not required, as they are components of Romanian private international law public order. -
The author starts in this study from the premise that a law may not be retroactive, after presenting the regulation on retroactivity in the previous Civil Code (of 1865), and makes an actually exhaustive analysis of the matters related to the implementation of civil law in time, as related to the continuity of the Romanian new Civil Code (applicable as of 1 October 2011). Finally, the author reaches the conclusion that the provisions of the Romanian new Civil Code as regards the set of civil laws in time are much more complex, and therefore superior, in relation to the regulations concerning the old Civil Code. -
Starting from the legal rule of the non-retroactivity of law (initially included only in art. 1 of the Romanian Civil Code of 1864, still in force, and, afterwards, in art. 15, parag. 2 of the current Constitution of Romania – of 1991), the author makes an analysis of the theory of the non-retroactivity of law (according to the Romanian judicial doctrine), and then he examines the rules of the new Romanian Civil Code (published in 2009, but not yet in force), as well as the Draft Law for implementing the new Romanian Civil Code) which, by regulating various legal situations representing a conflict of laws in time, applies the principle of non-retroactivity of the civil law. -
In the study hereby, the author makes a comparative analysis of the problematics of conflict between freedom of the press and reputation in the jurisprudence of the European Court of Human Rights and the United States Supreme Court, respectively, managing to capture a number of differences regarding the deviation of the litigious issue. -
This study deals from a theoretical point of view with the offence of conflict of interests in the light of its new regulation by the provisions of Article 301 of the Criminal Code. It also has in view some decisions of the Constitutional Court and of the High Court of Cassation and Justice which bring clarifications and simultaneously place on a constitutional path the legal text mentioned above. Within the paper it is also made a comparative analysis between the criminal incrimination of the conflict of interests and other provisions covering administrative aspects of this notion. -
The increase of the volume of regulations influences the activity of the companies and of the administrators, implying the risk of the latter being liable to the company for legally non-compliant business decisions. Part I of the study examines the legal regime of the obligation of the administrators to comply with the law and the implications of intentionally making business decisions contrary to the law. The conclusion is that the obligation to comply with the law can be seen as an independent obligation or explained through the doctrine ultra vires, but it can also be associated to the obligations of loyalty, good faith and diligence. Part II of the study analyzes whether there are potential exceptions that may justify the making of some legally non-compliant decisions and whether the liability of the administrators could be excluded or limited in certain situations. In principle, the making of profit, the attainment of other interests for the company or the ratification of the decision by the shareholders are not able to justify and exclude the liability of the administrators for making decisions contrary to the law. These decisions also exclude the application of some guarantees against liability, such as business judgment rule, the liability clauses and liability insurance. However, the social, economic and technological transformations accompanied by the inefficient legislation and by the phenomenon of regulatory entrepreneurship can provide sufficiently convincing arguments to change the paradigm in respect of the obligation of compliance. Although the proposed problems and solutions seem obvious, the study raises for discussion some aspects not addressed in the local doctrine, but which do not lack theoretical and practical importance. -
Increasing the volume of the regulations influences the activity of the companies and of the administrators, implying the risk of the liability of the latter to the company for business decisions non-compliant from a legal point of view. In Part I of the study it was analyzed the legal regime of the obligation of the administrators to comply with the law and the implications of intentionally making business decisions contrary to the law. The conclusion is that the obligation to comply with the law can be seen as an independent obligation or can be explained through the doctrine ultra vires, but it can also be associated with the obligations of loyalty and diligence. Part II of the study examines whether there are potential exceptions that may justify the making of some decisions non-compliant from a legal point of view and whether the liability of administrators could be excluded or limited in certain situations. In principle, the profit-making, the attainment of other interests for the company or the ratification of the decision by the shareholders is not able to justify and to exclude the liability of the administrators for making decisions contrary to the law. Likewise, these decisions exclude the application of some guarantees against liability such as the business judgment rule, the liability clauses and the liability insurance. However the social, economic and technological transformations accompanied by the inefficient legislation and the phenomenon of regulatory entrepreneurship can provide arguments sufficiently convincing so as to change the paradigm as concerns the obligation of compliance. Although the proposed problems and solutions seem to be obvious, the study discusses some aspects not addressed in the local doctrine, but which do not lack theoretical and practical importance. -
As a rule, in the countries of the European Union, for example in France, Italy, Spain, England, the cancellation of the dismissal does not lead to the reintegration of the employees at work. However, they are entitled to compensation, to damages, etc. established by the judge within the limits provided by law. In our country the situation is different. Regardless of the reason for the dismissal, whether it is related or not to the employee’s person, the court, at his request, shall order, in case of cancellation of the employer’s measure, the reintegration at work, regardless of the fact that position exists or not, the position being abolished, or if the employee has committed serious disciplinary misconducts: he has systematically violated the work obligations, had an unexcused leave of absence for a long period of time, has purloined goods from the patrimony of the employer or caused important damages thereto, etc. There are considerations for which it is required the amendment of Article 80 (2) of the Labour Code, rendering it more flexible, in the sense of taking into account the present realities, the needs of the practice and the real and justified interests of the employers.
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The following study has as research and reflection theme the influence of force majeure on labour relations, determined, in particular, by the legal norms specially adopted in the context of the existence of the pandemic caused by the spread of the SARS-COV-2 coronavirus. There are defined the force majeure, and its specificity is presented, taking into account the regulation of the Civil Code [Article 1351 (2)], as well as relevant doctrinal theories. Next, what is the essence of this stage, there are presented and analyzed the consequences of force majeure, especially consisting of the afore-mentioned pandemic, namely with regard to: forced labour, employment in public institutions and authorities, duration of labour relation, individualized work schedules and overtime work, change of place and type of work, suspension of labour relations, notice periods, patrimonial liability, collective labour agreements and labour disputes. The study ends with the conclusions on the analyzed problems.
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The question of the public legal aid in civil matters was settled by the Government of Romania by issuing the Government Emergency Ordinance no. 51/2008 on legal aid in civil matters. However, the regulation issued in relation to public legal aid in civil matters fails to cover all situations that may arise in legal practice, one of the unregulated issues referring to the applications made by several people together, in which case the court fees stamp are due jointly. -
Starting from a decision made in the interest of the law by the High Court of Cassation and Justice, which stated that the terms regulated in art. 278 para. 3 and in art. 2781 para. 2 of the Criminal Procedure Code, for exercising the remedy of complaint against resolutions or ordinances of the prosecutor for not sending a case to justice, can only represent peremptory procedural terms, the article analyses the consequences on the fairness of the procedure of non-settlement by the hierarchically superior prosecutor, within the deadline provided by law, of the complaint against the solution of not sending a case to justice, reaching the conclusion that the legal text under review should be reconfigured, either by way of clarifying the nature of the term provided in art. 277 of the Criminal Procedure Code as a lapse term, or by way of linking the term referred to in art. 2781 of the Criminal Procedure Code to the time of communication of the solution of the hierarchically superior prosecutor, to avoid “deviations” from the fairness principle.
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This study analyzes the situation – which is not expressly regulated by the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms – in which, after the claimant notified the European Court of Human Rights (and until 1998 the Commission within such Court), the respective claimant demises. The study takes into account a rich history of relevant cases, resulting from the case law of the Court/Commission. In the end, after examining the mentioned cases, a series of conclusions may be briefly deducted.
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Constitutional case law has got an important influence over the normative regulations and the legal system in general, due to the multitude of ways in which the Constitutional Court can intervene in order to modulate and harmonize legal provisions and the authorities’ actions with the rules and principles enshrined in the Basic Law. The risk of sanctioning the disregarding the constitutional exigencies, either in terms of formal conditions or in what concerns the fund rules, is a factor of accountability of the legislature. Therefore, the role the constitutional review plays in increasing the quality of laws and its positive effects on the lawmaking process should reinforce the importance of the Constitutional Court in the institutional state’s architecture.
