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In the study with the above title, the author reviews a recent amendment (under Law no. 202/2010) to Article 153 par. (1) of the current (Romanian) Code of Civil Procedure, which by its wording gives rise among practitioners to a controversy, namely: whether or not the legal entity is presumed to have been or not notified on the term (with the consequence of failure of its summoning on subsequent terms) where the summons was not personally received by the summoned person or a representative (legal or conventional) thereof, but by an employee thereof failing to act in the capacity as its representative. The author judges that non-receipt of summons personally by the summoned person or by his representative, but by another employee of the legal entity shall not denote to have been notified for all subsequent terms. -
The author, undertaking an analysis of legal EU regulations in relation to occupational pensions, concludes that the statements under Ruling no. 873/2010 of the Constitutional Court of Romania (only in terms of constitutionality of Law no. 119/2010 with reference to the conversion of public military pensions in “common law” pensions, within the meaning of Law no. 19/2000) are erroneous; consequently, the aforementioned conversion itself, set forth under Law no. 119/ 2010, is unconstitutional, in breaching relevant European law.
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Under Law no. 286/2009 on the Criminal Code there were established two new legal institutions in the Romanian criminal law: the waiver of penalty and penalty delayed. The author carefully examines the contents and terms of implementation of these criminal legal institutions, terms of cancellation and revocation thereof, with reference to comparative law and brief criminological approaches.
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In the study with the above title, the author makes a comparison between the regime of pleadings’ invalidity settled under the (Romanian) Code of Civil Procedure in force (since 1865), yet successively amended and supplemented by a series of laws (including Law no. 202/2010 regarding some measures to accelerate the settlement process) and the new Romanian Code of Civil Procedure (Law no. 134/2010, published on July 15th, 2010, but still unenforced), underlining – in a positive manner – modern and flexible legislation, superior to the latter, pointing out, though – critically – the sketchiness and occasional ambiguity of the new Code.
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În legislaþia românã, oportunitatea manifestãrii procurorului în procedura insolvenþei aparþine în exclusivitate acestuia ºi se înscrie în liniile directoare oferite de art. 45 alin. (3) C.pr.civ. Legea nr. 85/2006 nu prevede obligativitatea comunicãrii Ministerului Public a hotãrârii de deschidere a procedurii, iar procurorul nu este titular al acþiunii în acoperirea pasivului. Autorul considerã cã instituirea obligaþiei procurorului de a participa ºi pune concluzii în procedurã ar asigura o apãrare eficientã a ordinii publice, oferind premisele înfãptuirii unei justiþii plenare, în care atât interesele de ordin privat, cât ºi cele generale ar fi ocrotite. „De lege ferenda”, se propune participarea obligatorie a procurorului la acþiunea în acoperirea pasivului. -
Where other civil parties call for broadening the effect of declared appeal on the criminal side of the case and on other civil parties, and as far as conditions applying the extensive effect of the appeal are fulfilled, the judicial review court is bound to give effect to the provisions of Art. 373 in the C. Cr. Pr., obviously complying with the principle of non reformatio in pejus. The author argues that a contrary approach would be vulnerable and devoid of legal grounds, intended to set off the extensive effect of appeal from its purposes, which basically leads to the functional requirement of a court of appeal, consisting in examination of the case by extension, to be circumscribed to appeal statements. Thus, argues the author, it would add unacceptably to the law by way of interpretation, contrary to the principle of ubi lex non distinguit nec nos distinguere debemus.
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The paper deals with the correct interpretation of statutory provisions governing the written reproduction of audio or video conversations and communications intercepted and recorded, including those conducted in other language than Romanian. The author argues that it is imperative that legal practice accounts for matters dealt with in order to avoid abuses in this area, resulting in deprivation of effects of material drafted in breach of the law. There are also highlighted the main changes operated in this area by the new Code of Criminal Procedure.
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The criminal trial can be defined as the activity regulated by law, carried out by the criminal judicial bodies, so that persons having committed criminal offenses are brought to account for criminal liability and criminal penalties are imposed. Criminal trial aims to account for criminal liability persons who have committed criminal offences (i.e. achievement of the conflict criminal legal relationship), imposition of criminal penalties and their enforcement. The criminal trial phase is a division thereof, in which operate a particular category of judicial bodies in carrying out tasks that fall within their procedural position (to seek, to judge or to execute the decision), and following its exhaustion a particular solution on the criminal case may be rendered. The author reveals that, under the current Romanian legislation, the criminal trial covers three phases: prosecution, adjudication and enforcement of judgments (according to the Romanian doctrine, although the Code of Criminal Procedure in force entitles „Enforcement of Criminal Judgments” Title III of the Special Part). Under the new Code of criminal procedure rules, the criminal trial covers four phases: prosecution, the preliminary chamber, adjudication and enforcement of criminal judgments.
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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.
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The study under the heading above reviews the relationship between the European Parliament and national parliaments of the 27 EU Member States (including, where appropriate their regional parliaments) in the light of provisions brought under the Treaty of Lisbon (effective since December 1st, 2009).
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In Romania there is a special regulation (Government Ordinance no. 79/ 2003) on the control and recovery of Community funds and related co-financing funds misused. In the study hereby it is undertaken a presentation and an analysis on the penalty-related legal liability covered by this particular regulation.
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Article 322 section 5, second phrase of the (Romanian) Code of Civil Procedure provides that review of a final and binding decision in the Appellate Court or non-appealed and of a ruling passed by a court of last resort upon merits called forth may be requested „whether, following the rendering of the decision, a court order which grounded the decision under review claimed was abated or amended.” The author, in light of the practice of the European Court of Human Rights, considers that the purport should be interpreted narrowly. Accordingly, the scope of Article 322 section 5, second phrase of the (Romanian) Code of Civil Procedure may cover uncertified court orders exclusively (referred to as binding) because only these can be amended / abated under appeal or recourse, and not judgments passed within right of review procedures such as review or appeal for annulment, on account of complying with the principle of legal certainty.
