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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. -
Obligaþia celui care a edificat o construcþie pe terenul altuia de a o ridica la solicitarea proprietarului terenului are caracter civil, în condiþiile în care pãrþile nu au dovedit cã respectiva obligaþie ar avea în vedere un fapt obiectiv de comerþ cuprins în obiectul de activitate al vreuneia dintre ele pentru a fi incidente dispoziþiile art. 3 sau cele ale art. 56 C.com. ºi nici cã prin voinþa lor obligaþia de a face în discuþie ar fi dobândit o naturã comercialã, aºa cum prevede art. 4 C.com. (Înalta Curte de Casaþie ºi Justiþie, Secþia comercialã, decizia nr. 1448 din 14 mai 2009).
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The European arrest warrant is an extremely relevant subject these days, being one of the concerns of the European lawmaker, the EU Member States and the national authorities (Ministry of Justice, courts of law, prosecutor’s offices, police structures) involved in this field. In this article, the author presents the main particularities of the European arrest warrant enforcement in the EU Member States, emphasizing both its positive aspects and the difficulties met by the Member States in transposing the provisions of the Framework Decision no.2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.
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The Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law, whose transposition into the domestic law must be carried out by 26 December 2010, obliges the EU Member States to provide in their national legislation for effective, proportional and dissuasive criminal penalties in respect of serious infringement of provisions of Community law on the protection of the environment. For the Romanian law, its application involves a substantial reform of the notion and regulations regarding offences related to the protection of the environment, for the purpose of properly incriminating the series of actions seriously affecting the environment, in a coherent vision, which would reflect the particularities of the field and, in particular, would ensure effective and discouraging penalties, able to contribute to achieving the objective set.
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By comparison, the author examines the role of national parliaments in the treaties establishing the European Communities, the European Union (subsequent to the Treaty of Amsterdam), and then, much more in detail, the role of national parliaments in the Treaty of Lisbon (effective since 1 December 2009). At the end, the author examines the (indirect) influence of the Treaty of Lisbon on the legislative deliberative process in the Parliament of Romania.
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The article presents some considerations on the special procedural provisions regarding computer search set forth by Law no. 161/2003 on ensuring transparency in carrying out public dignities, public functions and in the business environment, the prevention and sanctioning of corruption. The author examines the nature of the legal institution of computer search and expresses his opinion regarding the need for a distinct regulation of computer search, in relation to the provisions of the Code of Criminal Procedure in the matter of checking and seizing objects and documents, search and technical-scientific finding.
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The article intends to assess the quite difficult but, especially, dramatic issue of the criminal liability of minors and of preventing and fighting juvenile delinquency, starting from the incontestable reality of the phenomenon of offences among young people. It examines the conditions for the criminal liability of minors by means of a comparative analysis of the current regulation and the regulation proposed by the new Criminal Code, emphasizing the evolution recorded in their punishment, from the perspective of the entirely special situation of minors, caused by their psycho-physical characteristics. In this study, a special emphasis is laid on the consequences of the lawmaker’s eliminating the enforcement of penalties to minors on their real reeducation and social reinsertion.
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This study examines – critically – the Romanian legal regulations regarding the termination of the term of office for a “local elected official”, which refers to: local advisors, county advisors, presidents and vice-presidents of county councils, the general mayor of the city of Bucharest, deputy mayors and the village delegate, who is also assimilated to local elected officials. Difficulties arise from the fact that the termination – upon expiry or prior to expiry – of the term of office for “local elected officials” in Romania is regulated, at present, directly or indirectly, by four laws, namely: Law no. 393/2004 on the status of local elected officials; Law no. 215/2001 (republished on 20 February 2007) on the local public administration; Law no. 161/2003 on ensuring transparency in carrying out public dignities, public functions and in the business environment, the prevention and sanctioning of corruption and in Law no. 144/ 2007 on the setting up, organizing and functioning of the National Integrity Agency. In order to avoid any difficulties generated by such a legislative system, the unification of regulations in this field is proposed (as well as some amendments to the laws) exclusively in the content of Law no. 393/2009 on the status of local elected officials.
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Examining the issue of the parents’ right to agree to their child’s journey in the country (in Romania) or abroad, after reviewing the legal regulations in this matter, the author reaches the conclusion that art. 18, paragraph 2 of Law no. 272/2004 (“Any journey made by children in the country and abroad shall be made subject to notification and consent of both parents; any disagreements between the parents in relation to expressing such consent shall be solved by the court of law”) provides for situations in which the parents exercise their parental rights together, while art. 30, paragraph 1, letter c of Law no. 248/2005 refers to the situation in which parental protection is divided pursuant to a court order (following divorce etc.). At the end, the author proves that the provisions of the new Romanian Civil Code (adopted y the Parliament and published in the Official Journal of Romania, but not yet effective) do not influence the above-mentioned legal regulations.
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In the above study, the author makes an analysis of the majority shareholder’s right to exclude the other shareholders from the companies traded on a regulated capital market (a right that is generally known under the English name squeeze aut) both in the light of the European Union Directive 2009/25/EC of 21 April 2009, and according to the (Romanian) law no. 297/2009 on the capital market, reaching the conclusion that the exercise of this right serves the interests of minority shareholders as well. -
In the above study, the author often criticizes the constant case law of the Constitutional Court of Romania, namely the fact that, on the one hand, the resolution by this Court of an exception of non-constitutionality a posteriori (therefore, after the law or the Government ordinance was adopted and published) is no longer legally possible if, as at the date of the Constitutional Court decision, the law/Government ordinance is no longer in force, being expressly abrogated. Moreover, the Constitutional Court also stated that, in the given situation, the examination of the non-constitutionality of the law shall be made by the courts, no matter their type (therefore, not by the Constitutional Court as well). Proving with arguments that the solution passed by the Constitutional Court is legally wrong, the author also emphasizes the serious consequences of the Constitutional law case law (the perpetuation ad infinitum in the future of the effects of a law, Government ordinance, hypothetically unconstitutional).
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In the above study, the author criticizes severely a judgment of the Romanian High Court of Cassation and Justice (the Administrative and Tax Litigations Section), passed on 26 October 2009, explicitly and unequivocally stating that the mentioned court was entitled not to enforce a provision contained in a law in force (namely, art. III of Law no. 262/2009), explaining that the given provision was unconstitutional since it “infringes the right to a fair trial”, although the Constitutional Court of Romania, quite the opposite, had stated the contrary, finding the constitutionality of that legal provision. The author’s criticism focuses on the idea that, according to the Constitution of Romania, only the Constitutional Court is legally competent to give a ruling on the constitutionality/non-constitutionality of a law or a Government ordinance in force (or of any provision included therein), and that the courts (including the High Court of Cassation and Justice) have no such legal jurisdiction in the matter.
