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Scurte observații de ordin istoric. 1. Sahara Occidentală. Teritoriul Saharei Occidentale, aflat în nord-vestul Africii și situat între Maroc, Algeria, Mauritania și Oceanul Atlantic, este disputat cu statut incert în dreptul internațional. O parte însemnată din acest teritoriu este controlată de Maroc, fără ca Marocul să exercite toate atributele suveranității sale asupra acestui teritoriu, în timp ce o parte mai mică se află sub controlul Frontului Polisario (sprijinit de Algeria), mișcare de eliberare a Saharei Occidentale a cărei legitimitate a fost recunoscută de ONU. Acest teritoriu este de mulți ani în atenția ONU care a propus organizarea unui referendum în vederea autodeterminării sale sub controlul Națiunilor Unite. Referendumul nu a mai avut loc1 -
In the matter of cases of application of the measure of preventive arrest, as in the case of other institutions, the new Romanian Criminal Procedure Code contains new regulations and takes over, in a limited extent, some provisions of the previous Criminal Procedure Code (of 1968). In this study, the authors analyzes the institution of preventive detention, with special reference to the cases of application of this measure, by presenting some critical issues and by proposing some improvements to the new regulation. -
In the matter of conditions of application of the preventive arrest measure, as in the case of other institutions, the new Criminal Procedure Code contains new regulations and takes over, to a small extent, some provisions of the previous Criminal Procedure Code (of 1968). The new Criminal Procedure Code has regulated the preventive detention in a single modality: the detention of the defendant, namely of the person against whom the criminal action has been set in motion. In this study, the authors analyze the institution of preventive detention, with special reference to the conditions of application of this measure, by presenting some critical aspects and by proposing some improvements of the new regulation. Key -
In this article, we analyze the stages of adoption and repeal of the Law No 169/2017, in relation to the dynamics of the level of employment of the penitentiaries and the ECHR jurisprudence. We identify the main undesirable effects of the application of the compensatory appeal, determined by the abrupt redefinition of the paradigm for the execution of the sentence of deprivation of liberty, with implications including on the (re)integration of the post-detention. -
Recently, Brașov Court of Appeal ruled that that the legislator listed in Article 5 (3) of the Law No 55/2020 the measures to reduce the impact of the type of risk and that the Government decisions issued in execution of the law impose certain limitations on the activit y of economic operators, the observance of which requires the presentation by individuals of a certificate proving vaccination, infection with the SARS-CoV-2 virus or a negative test. Also, the Court considered that the provisions contained in the Government decisions do not add additional conditions and do not contain additional restrictions or limitations of fundamental rights, these restrictions being regulated in the Law No 55/2020 as a formal act of the Parliament. However, as we will show in our analysis, the provisions of the Law on some measures to prevent and combat the effects of the COVID-19 pandemic are unconstitutional insofar as they are interpreted as allowing the restriction of the right to privacy by the processing of personal health data by economic operators, data contained in the EU Digital COVID Certificate. The unconstitutionality of the law derives from the violation of the provisions of Article 1 (5) of the Romanian Constitution in its aspect regarding the quality of the law, from the violation of the provisions of Article 53 (1) in its aspect regarding the restriction only by law of the exercise of some fundamental rights and freedoms and from the violation of the provisions of Article 26 on its side regarding the guarantees associated with the right to intimate, family and private life. The domestic use of the EU Digital COVID Certificate is also unconstitutional in relation to the provisions of Article 115 (6) of the Romanian Constitution on its side regarding the field of regulation of emergency ordinances. Thus, the main conclusion is that the judgment of Brașov Court of Appeal was given with the incorrect application of the rules of substantive law, so that a constitutional control is required in order to ensure for the recipients of the Law No 55/2020 the reasonable possibility to be able to predict the scope and effects of this normative act. -
Following the entry into force of the new Romanian Civil Code (on October 1, 2011) and the new Romanian Code of Civil Procedure (which will take place on February 1, 2013), in the Romanian civil law doctrine a controversy arose in the sense that divorce exclusive fault of the defendant State (that if the respondent spouse doesn’t file a counterclaim) is admissible only by way of exception, where the reason for divorce consists of a minimum 2-year de facto separation of spouses or, on the contrary in other situations as well. After a thorough analysis, the author opts for restrictive solution, i.e. divorce for applicant spouse’s exclusive fault (if the respondent spouse doesn’t file a counterclaim) is admissible only by way of exception, where the reason for divorce consists of a minimum 2-year de facto separation of spouses. -
In this study the authors make an approach that highlights the lack of harmonization between organic laws and the post-December period constitutional laws, in relation to regulating the free use right with referring to the public property, primarily, and the private property of the state/territorial-administrative units, in subsidiary; then the legislating of the new Civil Code which fully ceases the unconstitutionality status; and finally several aspects of specific administrative technique are being addressed. -
Although the administrator of the association of owners or tenants can also commit the offense of embezzlement by the acquisition of surpluses created in his/her management by fraudulent means, he/she can be sued only for embezzlement and not for having committed the offense of creating surpluses in management as well. This study analyses whether the administrator has the capacity of manager according to the provisions of art. 1, parag. (1) of Law no. 22/1969 and presents the reasons why the administrator cannot be an active subject of the offense of creating surpluses in management by fraudulent means, although he/she is an employee, due to the fact that he/she is employed with an individual employment contract and has as main work tasks the management of the property and values of the association of owners or tenants. -
Introducere.1 Una dintre principalele probleme existente în practica judiciară, după intrarea în vigoare a noului Cod penal, a fost legată de modalitatea de aplicare a legii penale mai favorabile. Aceasta a generat practica neunitară a instanțelor de judecată și a determinat pronunțarea de soluții de către Înalta Curte de Casație și Justiție și de către Curtea Constituțională. Realizarea unei diagnoze a celor 6 luni de aplicare a noului Cod penal reflectă modalitatea oscilantă în care au fost aplicate principiile care stabilesc determinarea legii mai favorabile, cu evidente consecințe asupra stabilirii pedepselor în cauzele aflate în curs de soluționare. -
As it is well known, the insolvency procedure involves the collaboration of the insolvent company, of the syndic judge, of the creditors and, of course, of the judicial administrator. Once the state of insolvency is established by the court, one of the first steps is to assess the debts of the insolvent company, and this action can be done only by communicating the state of insolvency to the creditors, in order to allow them to record their claims to the company. At this stage, an important role is that of the judicial administrator, who must work with all those involved in the procedure in order to determine the amounts owed to the creditors. The judicial administrator is not limited to receiving the creditors’ requests. He must analyze each claim, must establish the amount claimed and ascertain whether that claim is based on a valid title
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This study includes an analysis of the provisions of the new Criminal Procedure Code referring to the warrant for technical supervision when it concerns the financial transactions of a person in relation to the provisions of Article 153 on obtaining data concerning the financial situation, the utility and appropriateness of using the two institutions, as well as the comparative analysis in relation to the old regulations. The author also presents critical aspects with regard to these institutions, having in view the different interpretations given in the judicial practice, as well as de lege ferenda proposals. The study refers only to the data concerning the financial transactions of a natural or legal person related to a bank account and the subsequent operations. -
The regulation of the dismissal of employees in the national legislations is carried out, as a rule, either in casuistic system, or conditioned by the existence of a justified reason, or without imposing the requirement of no reason. In Romania, the regulation of the dismissal has in view the cases strictly provided by the Labour Code and any other special laws. However, there are some states of the European Union, as well as on the North American, South American, African continent or on the Australian continent, where the possibility of dismissal without cause of employees is admitted. In the spirit of flexibilization of the labour relations, in this study it is deemed useful that the dismissal without cause of employees be regulated in Romania as well, as an exception from the casuistic dismissal, and only with application limited to certain categories of employees (those pursuing an intellectual activity and, particularly, those who hold management positions). In order to ensure adequate protection of employees, the dismissal without cause should be conditioned by the grant of longer periods of notice, that are superior to those in the common law, determined according to seniority of employees at that employer, and to the payment of some monetary compensation, also established depending on the seniority at that employer, following that these measures be strengthened by the sanction of nullity applied to the dismissal that does not comply with these conditions. -
This paper intends to contribute to the reform of the Romanian legislation for preventing and combating terrorism. For this purpose, the author examines briefly three aspects. First, it refers to the meaning of the term „terrorism”. Secondly, it analyzes the reason that has imposed the use of the term of terrorism in international documents and, in particular, which is the purpose of the international conventions in this matter. Thirdly, there are investigated the main provisions of the Romanian legislation (Law No 535/2004 on preventing and combating terrorism), emphasizing some of its shortcomings. Finally, the paper includes some conclusions on the compliance or, where appropriate, the inconsistency between provisions stipulated in international documents and internal provisions. -
Although at first sight the procedure of cancellation of documents, regulated by Article 5491 of the Criminal Procedure Code, seems to be an institution that should not create essential problems, we can see at a closer analysis that certain provisions of the criminal processual rule are at least questionable. Moreover, the aspects related to the unconstitutionality of the provisions regarding the active legal capacity of referral to the judge in this respect have been subject to the analysis of the Constitutional Court of Romania. The problems of interpretation may also persist on the object, on the procedure itself, on the competence to settle the referral or on the limits of investiture of the preliminary chamber judge. Under these circumstances, in this paper we intend to express a point of view in relation to these aspects. With regard to the object of the referral and the limits of investiture of the preliminary chamber judge, we will analyse whether the cancellation of documents, in this procedure, concerns only the main documents or the subsequent documents as well, and whether the act sought to be cancelled is regarded in the sense of instrumentum or negotiumiuris. Another problem that may arise within the settlement of the referral with regard to the cancellation of documents is represented by the settlement competence. In theory, this will pertain to the preliminary chamber judge of the court which would have the competence to examine the case on the merits, certainly, according to the pre-established criteria of the criminal processual rules. Under these circumstances, if there aren’t any discussions in relation to material competence, this being given by the juridical classification of the deed for which the dismissal of action, respectively by the abandonment of the criminal prosecution, has been ordered, with regard to personal competence, we will clarify some aspects. At the same time we will try to answer an apparently simple question, namely: is it legally possible to administer evidence during the settlement of such a referral?
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The author, starting from a personal opinion, expressed in a previous study (published in the year 2000), namely that the employment relationship of the public servant represents a typical form of a legal employment relationship, a relationship that, although different from the individual employment contract (the archetype of the legal employment relationship), is not yet essentially different from the latter and, consequently, from a logical and legal point of view, the employment relationship of the public servant is a basic component of the labor law (legislation), emphasizes afterwards that, in recent years, one can note, from the legal point of view, a continuous reduction of differences between the legal employment relationship of employees and that of public servants. Further on, the author presents the typology of the current legal employment relationships, namely: the legal relationship of employees (generated by the conclusion of the individual employment contract, regulated by the Labor Code); the legal employment relationship of public servants (generated by Law no. 188/ 1999 on the Statute of Public Servants or by some statutes regarding special categories of public servants such as, for instance, police officers, diplomats and consuls, customs personnel etc.); the legal employment relationship of career military personnel (non-commissioned officers and officers – Law no. 80/1995); the legal relationship of persons holding a public office position; the legal employment relationship of magistrates (whose statute is subject to Law no. 303/ 2004); the legal employment relationship between the cooperative company and the cooperative members (Law no. 1/2005). As regards this typology of legal employment relationships, the author believes it is fundamentally erroneous to limit the object of labor law exclusively to the legal employment relationship of employees (regulated by the Labor Code), and firmly believes that all the above-mentioned legal employment relationships are, in his monist vision of the labor law, components of the Romanian labor law, whose summa divisio is made of the common labor law (regarding the legal employment relationship of employees, based upon the individual employment contract that is regulated mainly by the Labor Code provisions) and, on the other hand, of the special labor law (comprising the legal employment relationships of civil and military servants, persons holding public office positions, magistrates and cooperative members), a special labor law focused on regulations other than the Labor Code, but for which the Labor Code still represents common law. -
In this study, the author, starting with a specific case, refers to the patrimonial liability of the employees grounded on Article 253 (3) of the Labour Code. The text takes over from the common law the so-called action for regress of the principal for the act of the agent, provided by Article 1384 of the Civil Code. However, this action is possible only if the agent (the summoned employee) is liable for the prejudice, and not in the assumption that other persons or the principal himself (the employer) is guilty for causing the prejudice. At the same time, the elements of the contractual civil liability of the employees, consisting in the illicit act, causing damage to the employer’s patrimony, the causal link between the illicit act and the prejudice, as well as their guilt, are cumulative; the lack of one of them removes the mentioned liability.
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In the following study, the author makes a relatively exhaustive analysis of the provisions of book IV in the new Romanian Civil Procedure Code (Law no. 134/2010, a Code already published (on 15 July 2010) in the Official Journal of Romania, but not yet in force. In this context, the author examines the provisions of “About arbitration” (art. 533-612) in the new Romanian Civil Procedure Code, (with a special focus on the institutionalized commercial arbitration) in relation both to the corresponding provisions in the current Romanian Civil Procedure Code, and to the provisions contained in the Rules of Arbitration of the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania. -
Promoting the conception according to which material evidence should be exclusively reserved for civil procedure as evidence is fulfilling its main role in trial, the author stresses that the new Civil Code achieves the unification of evidence regulation in civil matters, by including this regulation in art. 243-382 of the new Civil Code, a salutary solution, in accordance with the majority opinion of the doctrine. The Legislator, based on the new Civil Code, preserves part of the evidence regulations of the previous Code, but also embracing solutions adopted in the Civil codes of other states, such as, for example, the French, the Canadian province of Quebec or the Swiss Civil Code. Of course, the new Civil Code includes innovative solutions that the author deems useful and necessary, such as those relating to admitting as evidence documents stored on computer media or those regarding material means of evidence. -
Today the philosophy of law can not be conceived outside the genesis, evolutions, paradigmatic hypostases, connections with the science, the knowledge and the world, of the fundamental conceptual couple philosophy – right. In the contemporary world we are witnessing spectacular changes of paradigm, of models, from the mechanical understanding of the legal order – specific to the modern period – to law as a complexity of high organization, open to others, to totality and to meaning. This means, among other things, the inherence of the philosophical dimension of the law. Therefore, the philosophy of law shall be established as a polycentric, integrative concept connecting together the durable classic axle, namely philosophy (expressed through excellence by its exemplary paradigms) – law (also expressed by its representative paradigms), to the contemporary network of knowledge, to the global society and to the contemporary man, in a specific, critical, open manner, always evolving. -
The study focuses on the analysis of the norms that regulate the subjects and the object of the protection of the topographies of the semiconductor products from the perspective of the Law no. 16/1995 with the further modifications and of the respective regulations from the Civil Code (Law no. 287/2009). The author reveals some aspects that were incoherently or ambiguously regulated as regards the approached topic and highlights the absence from the content of the special law (Law no. 16/1995) of some provisions misplaced in the Norms of application of this law. At the same time, in order to avoid the confusions in the analyzed case, the author formulates de lege ferenda proposals, in the view of eliminating the identified legislative imperfections. -
This article presents one of the issues of administrative law, namely its codification, by using the comparative study and the diagnosis analysis. Based on the inventory of the essential elements of the preliminary theses the conditions of the subsequent evolution of the Administrative Code in Romania are identified. The study emphasises the necessity to correct the existing normative framework and the thorough analysis of the social necessities. At the same time, the article draws attention to the necessity to adopt the Administrative Procedure Code with major role in the simplification and stability of the legal relations of the public administration with the other social protagonists. The diversity of meanings on the administrative codification from other states reflects the place and role of the Administrative Code in the Legislative Repertoire, but also its corroboration with the sectoral codes. The article points out, by recommendations, the normative requirements regarding the proper functioning of the public administration and draws attention to some measures that can be implemented within the limits of the current legal framework. -
The new Criminal Code, adopted by Law no. 286/2009, sanctions the fact of the clerk who claims or gets sexual favors, in order to accomplish an action in compliance with his job duties, or opposed to them, or standing on or taking advantage of his authority or superiority over the victim, arising from the title he holds. -
This study presents a possible legislative incoherence, generated by the current form of Article 130 (3) of the Civil Procedure Code, concerning the invocation of the lack of competence of private order of the courts, which may lead to the situation of an incompetent court hearing a request, an abnormal situation in the conduct of a civil legal procedure.
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The safety measure of extended confiscation was introduced by the Law No 63/2012 and is a transposition into the national legislation of the provisions of Article 3 of the Framework Decision 2005/212/JHA on Confiscation of Crime-Related Proceeds, Instrumentalities and Property. The study below has as purpose to analyse the provisions of this measure, provided in Article 1121 within the general part of the Criminal Code. -
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This article presents the provisions of the new Civil Procedure Code whose entry into force has been postponed again, by a recent normative act. These provisions refer to: the investigation of the trial, the preliminary procedure before the appeal and recourse court, the judgments which can not be challenged by recourse and the composition of the panel of judges for pronouncing a preliminary judgment by the Supreme Court. In a criticizable manner, in the author’s opinion, the legislator has prorogued the entry into force of these provisions, initially for 1 January 2016, and then for 1 January 2017. The conclusion of the study is that the legislator should have allocated material and human resources necessary in order to create all the conditions for a full entry into force of the new Civil Procedure Code from the beginning (15 February 2013), not a partial one, being required successively (for the texts not entered into force ab initio) two postponements (1 January 2016 and then 1 January 2017). -
By critically analyzing the foundation of the civil contract, in light of the provisions of the current Romanian Civil Code, in relation to the modern Western European legal doctrine, and by insisting on some obsolete and/or contradictory legal regulations of the new Romanian Civil Code, the author of this study, on the one hand, considers that the principle pacta sunt servanda has presently become a myth, that we are witnessing the constant decline of the autonomy of will in matters of civil contracts and, at the same time, a series of new developments as regards the limits of the contractual freedom, the legal regulation of unpredictability in the new Romanian Civil Code (Article 1271) being relevant in this respect. Finally, the author believes that the current Romanian Civil Code (of 2009) contains a number of inconsistencies and contradictory regulations under the mentioned aspects, for which reason he proposes, in conclusion, the recast of the Code as soon as possible, taking into account the numerous failures thereof. -
This paper presents the meaning of the term „assets” in Article 535 of the Civil Code and, at the same time, highlights its incorrect use in some of the other texts of the Civil Code and other statutory instruments, in disagreement with the new terminological option. Likewise, it raises a discussion on the lack, within the Civil Code, of a minimum of general rules dedicated to „common assets”, irrespective of their nature, quality of holders and source of community. Finally, following the presentation of negative consequences of the reported shortcomings, some legal remedies are proposed. -
The Civil Procedure Code entered into force on 15 February 2013, when neither the fax nor the e-mail were unknown anymore in the field of communication. However, the procedural provisions have proven to be tributary to some classical origins, even obsolete in some cases. The interventions of the High Court of Cassation and Justice, of the Constitutional Court, in the matter of law analyzed by the authors in this article, did not have the role of modernizing nor of improving the efficiency of the act of justice. The given interpretations have taken into account the letter of the law and not its spirit, probably starting from the strict application of the procedural provisions. Without disregarding these principles, the authors criticize in an argumented manner the solution pronounced by the Decision No 34/2017 of the High Court of Cassation and Justice, the Panel for the settlement of some legal issues, ruling in the sense of qualifying the procedural act sent by e-mail or fax, after the court’s work schedule, but until 24.00 of the last day of the procedural term, as being done in due time.
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The present paper makes a critical analysis of the legal norms regarding the validity of the mandates of the local elected counselors’, putting into evidence the way in which a procedure, that must be by excellence a juridical one, was changed into an instrument for the achievement of the political interests of some election competitors. The study demonstrates that the self – assessment procedure of the departmental counselors’ mandates and of the local ones, introduced by modifying the law of the local public administration authorities’ election, within several days before the general election in June 2008, is contrary to the constitutional principles and of the rules that must govern a state of law. The author does not make only simple critical remarks, but he also presents solutions for entering into legality, by settling validation competences of t6he departmental and local counselors, by the courts, according to the procedure applied to the other local elected persons.
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Taking our stand upon the differing regulations under Article 283 and Article 315 of Law No. 1/2011 on National Education (texts according to which, as far as the pre-university teaching staff is concerned, recovery of damages to the employing unit in consequence of patrimonial liability takes place based on a charging decision, while, as far as the higher education teaching staff is concerned, the recovery in question takes place according to the labour law, so, as a rule, by way of the employer’s proceedings before the Labour Court of jurisdiction), the author makes a series of critical approaches (pointing out that this distinction in the procedure is not justified) and, concurrently, puts forward de lege ferenda proposals.
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The article deals with the issue of inappropriate conditions of detention in the Romanian penitentiary system and the available internal means of appeal. The objectives of the article consist in determining the content of the notion of conditions of detention, the deficiencies of which led to the violation of Article 3 of the ECHR/Convention, the analysis of the applicable internal remedies and of the relation between these from the perspective of obtaining monetary compensation for inappropriate conditions of detention, and the establishing of the effects of the state of necessity on the State’s obligation to ensure appropriate conditions of detention
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The new Criminal Code has substantially modified the modalities of judicial individualization of punishments applied to defendants, also bringing novelty elements regarding the calculation of the fine, the possibility of its cumulative application with the sentence of imprisonment, when the offence committed was intended to obtain a patrimonial benefit, or the possibility of replacing it with community service work. By this study, I intend, through a careful analysis of both the case law of the European Court of Human Rights and the doctrine, regarding Article 7 of the Convention, as well as of the principle of legality in general, to argue the impossibility of the judge to order the revocation of the suspension under supervision of the sentence in case that a penalty with the fine, applied to the same person, was replaced by the sentence of imprisonment.
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In this study the author examines the recent changes to the legal status of free movement on the Romanian territory of the citizens of European Union Member States, European Economic Area and of the Swiss Confederation citizens through Law no. 80/2011, checking also their compatibility with the provisions of the Directive no. 2004/38/CE on free movement and residence of the EU citizens and of the family members on the territory of the member states and, when it is required, the way of reporting them to the legal status of the foreigners in Romania. -
The study examines the issue of autonomy of labor law in relation to civil law while considering the recent assertions in legal literature. Taking into account the classical criteria for delimiting the legal branches within the law – the subject, the specific principles and regulatory method - it is concluded that labor law is a mixed law branch which belongs mainly to private law, applies by way of common law to all labor legal relationships unfounded on individual employment agreement, is self-contained and it capitalizes, where appropriate and possible, the rules of civil law as common law rules. Labor law is not a branch (part) of civil law, but independent component of private law along with common law (civil law).
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This study describes a series of aspects regarding: the form of the state, the structure of the state and the governing form, insisting upon their features and divisions, at the same time pointing out the classifications of the structures of the state (the unitary state, the composite state); respectively, the monarchy (absolute and constitutional) and the republic (presidential, semi-presidential or parliamentary).
