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Legal issues of the contribution of spouses’ joint property to company’s establishment, the legal regime of shares acquired as consideration for this contribution, as well as the impact of the (Romanian) Family Code (effective during the period February 1st, 1954 - September 30th, 2011) and the Companies’ Law No. 31/1990 generated lots of controversy in the Romanian doctrine and jurisprudence between 1990 and 2011. With the enactment of the new Civil Code (Law No. 133/2009, republished, effective since October 1st, 2011) some of these controversies have been fully clarified. However, a good portion of them still exist today, generating further such debates and controversies. Such being the case, through this extensive study, the author examines, globally, the current legal regime of spouses’ joint property upon its impact with the Law No. 31/1990, examining, therefore, a series of questionable and controversial issues arising from the interference of legal regulations on the spouses’ joint property in light of the Romanian new Civil Code with the provisions of the Companies’ Law No. 31/1990, ultimately advancing several de lege ferenda proposals, for the settlement of all controversies arising from the impact of the two laws in question (the new Civil Code and Law No. 31/1990). -
In international relations the old rule of law acta probant sese ipsa has not the same value as inside of a state because it is considered that an authority of a State who receive a document from another State should be put in an extremely difficult situation in terms of imposing the task of assessing the authenticity of a foreign document to the first sight. So, the use abroad of official documents from a State authorities require the completion of special formalities in order to ensure the originality, the authenticity of signatures/seal and legality of a specific document preparation. If by 1961, the year of concluded of the Hague Convention on Abolishing the Requirement of Legalization for Foreign Public Documents (to which Romania joined by the Government Ordinance no. 66/1999, approved by Law no. 52/2000), there was only legalization procedure, since that date appears apostille procedure (only for the states signatory to the Convention) determined by reason of simplifying the requirements necessary to be fulfilled for the validity of official documents abroad. The aim of the present study is to present the apostille procedure in the light of the provisions of the Hague Convention on Abolishing the Requirement of Legalization for Foreign Public Documents and of the Romanian provisions regarding this issue. -
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This study emphasizes that, from a substantial point of view, the criteria required to be fulfilled for cataloguing a deed as pertaining to the criminal domain are: the qualification of the deed in the domestic law, the nature of the deed and the purpose and the severity of the sanction. Formally, an official report of finding and sanctioning the contravention which represents at the same time also a criminal charge in the conventional sense must cumulatively include the description of the deed and the presentation of the legal classification. The effect of classifying the report of finding and sanctioning the contravention in the category of the criminal charge in a conventional sense is given by the fact that to the procedure for finding and sanctioning the contravention there are attached its own guarantees of a fair trial. The presumption of lawfulness of the report is compatible with the presumption of innocence only if it respects certain limits, taking into account the gravity of the stake and protecting the rights of the defence. The limits of the presumption of lawfulness of the official report, in the context of protecting the rights of the defence, are: the imperative that the deed be perceived directly, through its own senses, by the fact-finding agent and the exigence not to impose on the person concerned an impossible task, as regards the administration of the proof to the contrary. -
Pre-trial detention was defined as the most intrusive custodial preventive measure in the exercise of the person’s right to freedom, by which the judge or the court orders the detention of the defendant for the duration and under the specific conditions provided by law, in places specially intended for this purpose, in the interest of the criminal prosecution, the preliminary chamber procedure or the trial. In order to take pre-trial detention, it is necessary to meet all the general conditions provided by law for taking preventive measures, as well as the existence of at least one of the prev. of Article 223 of the Civil Procedure Code. In practice, in almost all cases, preventive arrest is based on the provisions of Article 223 (2) of the Civil Procedure Code. Under these conditions, we tried to create both a general presentation of these grounds and a theoretical analysis of the main issues that can generate confusion and problems in the application of the cases provided for by Article 223 (1) of the Civil Procedure Code. All this theoretical analysis has, as far as possible, been examined in conjunction with solutions from judicial practice, where appropriate. -
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The article presents the results of a research conducted in six European countries mainly on the analysis of the exceptional nature of preventive arrest within these jurisdictions. In this article there are presented the main results of the research conducted in Romania, research that was based on a series of interviews with judges, prosecutors and lawyers. The main areas investigated have concerned aspects such as the analysis of the decision-making process, the situation of the foreign citizens subject to preventive measures, the manner of application of alternative measures to preventive arrest, the analysis of the current criminal processual normative framework, as well as of the impact in the current practice of the European regulations, etc. The conclusions of the study are in the sense that in Romania there have been registered also some aspects representing progress in the sense of protection of the fundamental human rights in the cases where it is raised the question of taking some preventive measures in the criminal cases – such as the fact that the tendency, at least in terms of using the preventive arrest, is a decreasing one. However, major deficiencies have also been found, related to the organization of the initial and continuing training for magistrates, in the sense that they have been found to be unaware of judicial instruments important for their activity. It is precisely about instruments that are capable of improving the situation of foreign persons in relation to the state where it is raised the judicial matter – respectively the European Surveillance Order.
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The article hereby reviews the arguments on the need for detention of the presumption of innocence in contravention and, therefore, the proper application of the provisions of art. 6 of the (European) Convention on Human Rights and Fundamental Freedoms. Arguments are the result of uniform and consistent theories and practices of the European Court of Human Rights and the provisions of the Constitution of Romania, republished. Given these arguments, the author considers that the presumption of innocence in contravention is mandatory for the Romanian courts when a complaint of contravention is submitted for trial against a sanctioning act. In conclusion, it urges that the High Court of Cassation and Justice order by an appeal, in the interest of the law, guidance for uniform practice in contravention and / or the legislator to amend laws on this issue, to that effect. -
As a systematic mean of exposing knowledge, in a specific and accessible form, the encyclopedia played an important scientific and cultural part, much amplified given the conditions of the age of internet. The encyclopedia of law offers important particularities, linked to its own tradition, the importance of the knowledge it offers and the extraordinary dynamics of the field. The project initiative of a Romanian Encyclopedia of Law answers a historical need, as a work of accomplishment and affirmation of the Romanian culture, in the context of the European and global cultural diversity. Moreover, it stands as an endeavour imposed by the new stage of development in Romanian law. After the finalization of the great legislative reform post-1989, by the adoption and entry into force of the major codes: civil and civil procedure, criminal and criminal procedure, legal doctrine needs a synthesis and conceptual abstraction specific to an encyclopedia.
