-
The present study proposes to analyze the issue of civil guilt, in both of its forms (tort and contractual), judging that the selection of the Civil Code s applicable guidelines (the new Civil Code, in force as of October 1st 2011, as well as the previous Civil Code) from the amalgam of jurisprudential solutions and doctrinaire directions is highly important. The exploration of the Civil Code ks texts brings in discussion a current topic much debated by the contemporary doctrine: disappearance of the unity and harmony of civil liability, which is traditionally founded on guilt. The coexistence of the hypotheses of subjective civil liability with those based on the idea of risk, warranty or equity, within the context of modern society, evidences the increase of the remedial role of civil liability, to the detriment of the sanctionable role. The attention focuses on the victim ks position, to be indemnified, being less important, within the area of civil liability, the sanction applicable to the offender. In the last part of the study, the author expresses her belief that, despite inherent difficulties, undoubtedly, at this moment, the guilt still remains „the eternal lady of tort liability”. -
With rare exceptions, self-explanatory, the legal adages have proven out to be law constants, that are so enfranchised and widely accepted that, often, they have been converted from ,,rules” to ,,arguments”. Jurisprudence has capitalized them and is still capitalizing them either in the consideration of ,,their inherent binding legal force”, since, in their essence, they are objectified through legal rules, hence borrowing their value, either in the consideration of ,,their normative force” k within the newer meaning assigned to this concept k as ,,reference”, as ,,guidance”, as ,,standard” of interpretation and enforcement of the provisions of positive law. Two of these adages present a paradoxical and arguable legal circumstance: specialia generalibus derogant (special departs from general); nemo censetur ignorare legem (ignorance of the law excuses no one). They are not established in terminis (in terms) and sufficiently defined by legal dispositions. And, still, they have a binding legal force. These are, in essence, the subject matters proposed to be discussed in the study below.
-
The author performs a thorough analysis of the legal content regarding the crime of fraud, provided at art. 244 of the new Criminal Code, with frequent references to the domestic judicial practice and compared with the new criminal dispositions. With respect to the normative proceedings set forth at par. 3, 4 and 5 of art. 215 of the Criminal Code adopted on 1968, abolished by the new regulation, the author believes they have not been abrogated and they shall be found as factual methods in the legal content of the crime of fraud, provided at art. 244 of the new Criminal Code, as long as the other incrimination requirements therein indicated will be accomplished. However, the author expresses some reserves regarding removal of the circumstance from the fraud ks aggravated content, when it generates highly serious consequences, as well as regarding the oversized reduction of the special limits for the penalty provided for this serious crime. Furthermore, the object of criminal protection, the crime ks subjects, the objective and subjective aspect, the forms, methods, sanctions and some procedural aspects regarding the felony set forth at art. 244 of the new Criminal Code are examined. Moreover, the author does not hesitate to express his point of view regarding the constitutional content of this criminal felony and to suggest some solutions and own opinions.
-
In this study the authors focus on the necessity of considering the criminal ks degree of social danger in the individualization of penalty, given that the same penalty, identical as type and amount, does not generate the same effects for all criminals on whom it is applied. Concurrently, the authors highlight and conduct an ample research of the elements de facto that are used for the assessment of a criminal ks degree of social danger. Therefore, in order to comprehend the criminal ks degree of social danger, the following should be assessed: health condition (predominantly the psycho-physical condition), the criminal ks biological structure and mental characteristics, the entire social environment, the criminal ks behavior before perpetration of the crime, the criminal and legal circumstances of the criminal (convict, recidivist, prosecuted for other felonies, rehabilitated, amnestied, pardoned etc.), behavior after perpetration of the crime and during the criminal lawsuit, the level of education, as well as age. The following personal circumstances of individualization should also be included: the criminal ks capacity (officer, army enlisted, magistrate, mother etc.), civil status (married, single, widowed etc.), the relationship with the victim (close relative, relative, cohabitant, spouse, friend, enemy etc.) and any other information that might contribute to the individualization of the criminal ks individuality (for instance, lifestyle, reputation, social merits etc.).
-
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 new Civil Code has regulated, for the first time in our legislation, the periodic property. This new legal form of the right of property has been established as a forced joint ownership, although its owners do not exercise the prerogatives of the property right concurrently and together, but successively and repetitively. This study criticizes some provisions which govern the periodic property and sets out the arguments supporting the idea that this forced property cannot be considered joint ownership of property, as the Civil Code names it.
-
In this study, the author analyzes the protection measure by means of adjudication of incapacity of certain natural persons, mentally ill, by drawing a comparison between, on the one hand, the dispositions of the New Civil Code and the New Code of Civil Procedure, and, on the other hand, the old regulation contained in the Family Code of 1953 and the Ordinance no. 32/1954 regarding enactment of the Family Code and the Ordinance regarding natural persons and legal entities. In its essence, the New Civil Code preserves almost entirely the provisions of the previous regulation on this protection measure, bringing just a few elements of novelty, such as the possibility of appointing the custodian by a competent person, in case of future adjudication of incapacity or acknowledgement by law of the validity of donations made by the custodian, without being exempted of report, to the descendants of the one adjudicated of incapacity. The same thing can be observed in case of procedural dispositions, the most significant amendment brought by the New Code of Civil Procedure to the procedure of adjudication of incapacity being the modernization of the advertising system with the purpose of permitting the measure ks opposability towards third parties, thus arising two new forms of publicity, namely land registration and trade register publicity.
-
Ending a controversy that lasted for two decades (1991-2011), Law no. 62/ 2011 on social dialogue settled, unequivocally, that in case of triggered and / or continued illegal strikes, the parties responsible are the organizers of the strike and all employees participating in such strikes, be they employees or civil servants. Further, the study proceeds to a thorough analysis regarding the legal nature of restoring liability (civil-tort or civil-contractual) of the organizers of such strikes, as well as of the „employees” (employees or civil servants) participating in such strikes, concluding that the first bear civil-tort liability, and the participating employees bear civil-contractual liability.
-
Compensation for damage related to the environment (environmental damage, lato sensu) – harm to the (ecologically “pure”) environment and damage to persons or property caused by pollutants, harmful actions and disasters - is achieved in Romanian law through several legal regimes: tort liability, under the Civil Code (liability for the deeds of its own, deeds based on guilt, fault liability, the deed of things, liability for abnormal neighborhood disturbances), environmental responsibility (covered by Directive no. 2004/35 / EC, transposed into the national law by the Government Emergency Ordinance no. 68/2007), the objective liability of legal origin and liability for damage caused by defective products. The main criterion is in this regard the term “environmental harm” and the concept of environmental damage (lato sensu). The construction of the liability and compensation for damage related to the environment (environmental damage) system involves delimiting the action field of each type of “liability”, “repair”, establishing the specific rules applicable and capturing the relevant structural interdependencies. -
The above study examines specific issues arising from the inheritance regime where the assets of the deceased’s estate include shares, following the death of a limited liability company associate.
-
This paper analyzes the legal status of the Romanian judgments in terms of the European Enforcement Order, in light of the provisions included in Regulation (EC) no. 805/2004 creating a European Enforcement Order for uncontested claims; Regulation (EC) no. 1896/2006 creating a European order for payment procedure; and Regulation (EC) no. 861/2007 establishing a European Small Claims Procedure, all this, in conjunction with the rules of the new (Romanian) Code of Civil Procedure (Law no. 134/2010, republished on 3 august 2012 and entered into force on February 15, 2013).
-
The author analyzes the rules of Directive 2001/23/EC of March 12, 2001 on the appropriation of the European Union Member States’ laws relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or establishments, by reference to the rules of the Labor Code (republished) and the provisions of Law no. 64/2006 on the protection of employees’ rights for transfers of undertakings, business or parts thereof; this comparative analysis reached some interesting conclusions useful both for theorists, and practitioners.
