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According to art. 32 of the Land Property Law no. 18/1991 (republished on January 5, 1998) in the case of „establishing” the right of ownership as provided in this law, the land thus attributed to individuals „shall not be alienated by documents between the living for 10 years, starting from the beginning of the year following the one during which the property was registered, under the penalty of absolute nullity of the alienation document”, the city hall, the prefect’s office, the prosecutor’s office or any other interested person being entitled to file a claim for the ascertainment of nullity. The author discusses the general cases resulting from this text of law, and in principal whether the 10-years term lapses (is counted) from the „registration” of the property in agricultural registries or from its „transcription”, or „registration” of an alienated property in transcription registries, namely its „registration” in the Land Book. -
In this study, after a brief introduction on parental rights and obligations, the author examines, in the light of the legislation currently in force (Family Code – amended by Law no. 288/2007, and Laws no. 272/2004 and no. 273/ 2004), and in the light of the future Romanian Civil Code (published on July 24, 2009 but not yet into force), the status of parental rights and obligations, provided that the child has been legally entrusted to other persons, discussing, in this manner, with priority, the extent to which the parents are entitled to provide their consent to the marriage of their child (if the child is a minor) or to his/her adoption.
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Starting from the hypothesis of art. 1073 of the Civil Code („the creditor is entitled to obtain the exact fulfillment of the obligation”, otherwise being „entitled to remedies, the latter being called “damages” in the Romanian legal language), the author makes, in this study, a review of the issue of evaluating default damages in the case of money obligations, namely of the (default) interest, then detailing, in the third part, the legal regimen of legal interests in commercial matters.
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In considering the very succinct legal regulations (art. 191–203) regarding limited liability companies in Law no. 31/1990 – the Companies Law (republished in 2004, as subsequently amended and completed), the author only examines issues related to such commercial companies, namely: the revocation of their directors, on the one side, and the transfer of shares in limited liability companies, on the other side.
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In the study above, the author examines the issue of redemption of own shares by a company admitted for trading on a regulated market, under the conditions of art. 1031 of Law no. 31/1990 regarding trading companies (republished on November 17, 2004), of EC Regulation 2273/2003 and of Directive 71/91/EEC. For this purpose, the author reviews: how the redemption of own shares is performed in practice, the juridical effects of such redemption, the funds employed to make the redemption; various specific cases in the matter.
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The author, after explaining the „valorism” and „value debt” concepts, enters into details on the issue of aggregation of default interests (art. 1088 of the Romanian Civil Code – 1865 –, still into force), reaching a conclusion, which agrees to a minority juridical doctrine, that the interest may be aggregated to a value debt.
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Starting from two recent decisions of the Constitutional Court of Romania, according to which the constitutional contentious court ruled that both the grounds and the purview of its decisions are generally mandatory, the authors of the study perform an examination of the case law of this Court, meant to support the stated rule. Based on numerous examples from the Constitutional Court case law, the importance of the grounds of decisions made by the court is emphasized, in particular when in such grounds the Court mentions the consequences of ascertaining the non-constitutionality of the texts under review. The conclusion of the study is that, in essence, the observance of the general mandatory character of the decisions of the Constitutional Court is not only a way to make its purview more efficient, but also to make the grounds more efficient, or the Court’s interpretation of the fundamental law. At the same time, an opinion is expressed that, in order to guarantee the Constitution, the intervention of the Constitutional Court is not only legitimate, but also necessary, in what regards the provision, in the contents of the grounds of decisions, considering the specific effect of constitutional law attached to any of the decisions of the Constitutional Court, of what the effects are of finding the texts under review constitutional or even non-constitutional.
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According to art. 1088, paragraph 1 of the Romanian Civil Code (in force, “For obligations having as object any amount, damages for performance shall comprise only the legal interest, except for the special rules regarding trade, guarantees and companies”. The author criticizes this regulation that actually leads, in numerous situations, to damaging the creditor, if the maximum interest limit is lower than the amount of the damage caused by failure to perform or late performance of the obligation to pay an amount, showing that the above-mentioned legal solution, taken from the French Civil Code, is not presently provided in the Italian, German, Swiss and English systems. Moreover, the new Romanian Civil Code, published in July 2009, but not yet effective, stipulates (in art. 1535, paragraph 3) that, if the interest due (for failure to perform the pecuniary obligation in due time) does not cover the entire damage incurred, the creditor shall be entitled, in addition, to damages for any additional damage incurred due to debtor’s failure to perform the obligation. In the end, the author considers that the regulation of the possibility for reduction of damages by the court would not be opportune – at present – in Romania. -
This study represents, in its essence, a micro-monograph regarding the right to image, a component of personality rights. In this respect, following a presentation regarding the “personality rights, in general”, the authors examine in detail the issue of the right to image (notion, basis, autonomy of the right to image, consent to the reproduction of one’s image, limits of the right to image, image contract, extinguishment of the right over image).
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Human personality represents the synthetic expression of biological, psychological and social features, a result of the interaction of fundamental factors: heredity, environment and education. People cannot exist like isolated, single individuals, but only as individuals who are in a permanent cooperation with each other for the purpose of transforming the social environment. For this reason, the human being, as personality, reflects an entire ensemble of psychophysiological, moral and esthetic features and capacities, abilities etc. These factors of the human personality (genetic and acquired) mandatorily create the elements of human dignity: honor, which is an inborn attribute and reputation, which is an acquired attribute. For this reason, the protection of the dignity of the person has represented a subject of legal protection since the earliest times for all legislations, and only the content of incrimination or the penalty prescribed by the incriminatory rule has varied. At present, as well, human dignity represents a fundamental social value that needs to be protected since the normal development of social life is not possible without protecting this value. The European countries with modern legislation have regulated the incrimination of crimes against dignity. In the spirit of our tradition and of adapting the Romanian legislation to the European legislation, Romania is required to do the same thing. The grounds presented in this article represent arguments in this respect.
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The author shows that, in the new regulation, the essential characteristic regarding the social danger entailed by the criminal action committed was removed from the definition of the crime. Instead, two new essential characteristics were introduced, namely: the action committed, which is provided by the criminal law, is unjustified and not imputable to the person having committed it. Also, reference is made to the correlation between the institution of the action provided by criminal law and the institution of the crime and the essential characteristics of the crime are examined.
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The author notices that the new definition of the material element of the objective side of the crime is clearer than the current wording. Unlike the current regulation regarding the sexual intercourse, of any type, in the new wording of the incriminatory rule, the lawmaker refers distinctively to the sexual intercourse, the oral or anal sex, in case of the form of crime, and distinctively to any other acts of vaginal or anal penetration, in case of the assimilated form of crime. The passive subject of the crime may be, in the new wording of the incriminatory rule as well, any person irrespective of gender, age, civil status, including the perpetrator’s wife. The aggravation of the crime is triggered by six aggravation causes, unlike the four in the current Criminal Code, following the provision of new forms of aggravation or the redefinition of aggravation causes in the case of rape against a relative in direct line or against a brother or sister; rape against a minor under 16 years of age; rape committed for producing pornographic materials; rape resulting in the injury of the victim. The incrimination of attempted rape proves the inconsistency of the lawmaker. The system of penalties provided by the new Criminal Code raises the question of enforcing the more favorable criminal law.
