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The article intends to give an analysis of the constituent elements of the crime of violation of private life, taking into consideration that this incrimination is new for the penal legislation in our country. The emphasis lies especially on the issues regarding the components of the external and mental elements of this crime, together with the presentation – when the author found it necessary – of certain sugesstions for the improvement of the incriminating rule. The actual analysis of the crime comes with certain generic considerations on private life as a social value, reffering to those aspects emerging from the juridsprudence of the European Court of Human Rights. -
This study aims to identify ways to reflect in the special law (Law no. 72/ 2013) some genuine civil law guiding ideas, lato sensu, and some principles applicable to the relationships between professionals, but also the extent to which the application of these principles to the cases envisaged by the legislator in the special regulation referred contributes to the purpose of the law concerned. -
The new Romanian Civil Code (Law no. 287/2009, republished) contains a new concept, namely the sanction of clauses deemed unwritten, which are incident to all areas covered by the Civil Code. In this study, the author makes a comprehensive analysis of this new concept, concluding that we are faced with an autonomous sanction. Although it has an autonomous nature, with regard to its legal system, the author believes that this autonomous sanction is, by analogy, subject to the rules for invalidity.
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The above entitled study concerns the analysis of the Romanian Civil Code current provisions relating to the “Preciput Clause”; the said provisions are inspired mainly from the corresponding regulations of the 1804 French Civil Code. Specifically, it examined the Preciput Clause in terms of its legal nature, beneficiaries, objectives and execution hereof. Also, existence of improvable aspects in regulating this Romanian legal system unique legal institution has been reported and, consequently, certain de lege ferenda proposals were grounded.
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A “natural right” being most profoundly democratic not only retained, despite the historical vicissitudes, its intrinsic moral values, but due to the constant and firm “juridicization”, in another historical ambience, has increased these values and the implications of their valorization, while granting plenary sense to the contemporary “rule of law”, ensuring above all - according to the beautiful and meaningful saying of a historical figure - the protection of the “powerless people in front of power”: the right to request the assistance of a judge or the right of access to a judge. Article 5 of the Code of Civil Procedure recalls us that right, but unfortunately, as it does, requires again to make any effort for the consistent and undoubtedly useful understanding from the social point of view of its purposes.
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The study hereunder examines the ways of exercising the autonomy of will and the reflection of the principle of freedom of contract in civil procedural law. As freedom of contract, like any other freedom in fact, is not absolute or unlimited, the author quests the ways in which, within the framework of civil procedural law institutions, there are covered and operate certain assumptions which may constitute limits to the freedom of contract. In this perspective, we shall have in view institutions such as legal contracts, mediation or arbitration. -
Dispozițiile art. 9 lit. b) din Regulamentul CE nr. 44/2001 aratã cã un asigurator care are domiciliul pe teritoriul unui stat membru poate fi acționat în justiție în alt stat membru, în cazul acțiunilor intentate de cãtre deținãtorul poliței de asigurare, asigurat sau un beneficiar, în fața instanțelor de la locul unde este domiciliat reclamantul.
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The author highlights the manner in which the observance of fundamental rights enshrined and guaranteed under the Charter of Fundamental Rights of the European Union is ensured by the national constitutional rules and the main provisions of the Civil Code, the Code of Civil Procedure, the Criminal Code and the Code of Criminal Procedure, as well as by domestic judicial courts that interpret and apply the domestic or European law, on a case-by-case basis. At the same time, the study also presents the case-law of the Court of Justice of the European Union relevant in the matter of ensuring access to justice, the right to a fair trial, as well as the relationship between EU law and the national law relating to judicial organization. In this regulatory and jurisprudential framework, the author considers that compliance with the Charter of Fundamental Rights of the European Union moves toward being enforced by national courts, along with the (European) Convention for the Protection of Human Rights and Fundamental Freedoms.
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Guaranteeing the right to defence is a fundamental principle under the Romanian criminal procedure law. Although it has strong constitutional and criminal procedure guarantees, however, its practical implementation is in some cases misinterpreted and, on the other hand, the prosecution bodies violate it sometimes, the consequence being the discrediting of the judicial process. The present article refers to jurisprudence in two cases where the defender’s right to question the opposing party and to inspect the prosecution file is restricted without legal basis.
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The court having territorial jurisdiction to trial the parole requests, the requests for the amendment of sentencing enforced by final judgments, the requests for interruption of the execution of prison sentence, the appeals to the execution filed by convicts in detention, as well as appeals lodged by prisoners against the hearing reports of the appointed judge for the execution of sentences, is set under the provisions of Article 449 para. (2), 450 para. (1), 456, 460 para. (1) and (6), 461 para. (2) of the Code of Criminal Procedure and Article 25 para. (6), 74 para. (5) and 77 para. (3) of Law No. 275/2006 on the execution of punishments and measures ordered by the judiciary in criminal proceedings. Sector 4 Bucharest Court, judging claims like the ones mentioned above, lodged by prisoners in the penitentiaries Bucureºti Jilava and Spital Jilava - prisons that are not located within its jurisdiction - pursuant to the Order of the Minister of Justice No. 1279/C/2000, administrative regulation not published in the “Official Gazette of Romania” and issued pursuant to a statutory provision, currently expressly repealed, breached the laws of jurisdiction, assuming a jurisdiction that, legally, falls upon other court. Also, on account of the Bucharest Court judging, in the first instance, as Court of execution, requests made by prisoners in the same prisons, after November 1st, 2011, date on which Ilfov Tribunal started to operate, had violated the legal rules governing its territorial jurisdiction.
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By the judgement passed in the criminal case no. 754/2012, the High Court of Cassation and Justice held that, where the provisions of Article 3201 Code of Criminal Procedure are applicable, honest behaviour during the trial, consisting in the admission of having committed the acts retained in the document instituting the proceedings, cannot be considered a legal mitigating circumstance, referred to in Article 74 para. (1) (c) thesis II of the Criminal Code. This interpretation is questionable, because there is a legal difference between the two institutions, which doed not preclude their concomitant application.
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This study addresses, from the comparative perspective, the regulation set forth under Article 386 in the new Criminal Code. Its introductory part includes an overall assessment of the new regulations on electoral offences in the new Criminal Code which systematize rules corresponding to those which are currently included in the special legislation, namely in five regulations. The comparison of the incrimination text covered by Article 386 in the new Criminal Code aimed at checking correspondence with all the other 4 rules of incrimination of the same title currently active.
