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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. -
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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On 10 December 2009, the Parliament of Romania passed the Law no. 381/ 2009 regarding the introduction of the preventive concordat and the ad-hoc mandate. This paper examines the main features of these preventive instruments, designed to be used by the debtor in order to avoid the opening of the insolvency procedure, while restructuring its undertaking and its debts, as to provide satisfaction to the creditors. The author analyzes the categories of debtors that are eligible for such procedures, the role played by the judicial bodies, the proxy and the conciliator and the mechanism of implementation and the effects of the preventive concordat and the ad-hoc mandate. The final part is critically addressing the chances of these preventive instruments to satisfy the interests of both the debtor and the creditors.
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In this study, the authors examine 12 texts in which the new Romanian Civil Code (published on 24 July 2009, but not yet effective) explicitly provides for using the procedure of presidential ordinance in 12 clearly stated situations
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Criminal law, as a set of mandatory rules of conduct, compliance with which is imposed by the coercive power of the state, applies to all the people on the territory of a given country and for a certain limited period of time. Therefore, the putting into effect of criminal law means the fulfillment or non-fulfillment of the duties it provides for, in relation to two essential elements: “territory” and “time”. The application of criminal law on the territory means the actual fulfillment of instructions carrying sanctions in relation to the territory in which a crime was committed, in the country or abroad. The Romanian criminal law is aimed at and applies to the people in the territory of Romania and who must comply with its provisions. The new criminal code has brought numerous and substantial changes to the principles behind the application of the Romanian criminal law in the territory and which we will examine hereinafter.
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In this study, the author examines the possibility of including in Romania, in the private law contracts (civil or commercial), some hardship clauses, (the hard ship clause in the Anglo-Saxon law and in the foreign trade law), even if there is no explicit regulation in this respect in current Romanian positive law (there is an explicit regulation only in the new Romanian civil code – art. 1271 – , but this Code has not become effective yet and, at present, nobody knows when it will become effective). Further on, after defining the notion of “hardship clause”, the author, also taking into consideration the Romanian legal doctrine in the matter, examines the field of application, as well as the conditions of the hardship clause. Key words: Hardship clause in private law contracts; field of application and conditions in the current Romanian law.
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In this study, the author, opposing the opinions expressed in a recently published study, reaches the conclusion that, after the Police Officer Status enters into force (Law no. 360/2002), the recovery of expenses from police officers (trained by the Police Academy) failing to comply, for reasons imputable to them, with the obligations included in the commitments undertaken according to art. 9 of the Government Decision no. 137/1991 or art. 17 of the Government Decision no. 294/2007, shall be made according to art. 84–85 of the Civil Servants Status (Law no. 188/1999, as republished) and never according to common law (the civil code/law), by way of an action filed to the common law court.
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In the judicial practice, there are divergent opinions regarding the settlement of cases in which the reports drawn up by the Labor Inspection are contested, invoking the inexistence of work accidents. Some courts have considered that the litigation should be tried by the administrative sections in the courts of law, others have decided that trial courts have the competence required to solve the case in the first instance and a third opinion is that of dealing with the case separately and of solving the aspects regarding the administrative sanctions and, respectively, the nature of the accident by different courts. The author considers that the complaints against this type of reports fall under the jurisdiction of trial courts and not under the jurisdiction of administrative courts. -
The group of economic interest is created as a partnership between two or more physical or juridical persons and its aim is to facilitate or to develop the economic activity of its members or to improve the results of their activity, on a determinated period. The group of economic interest was first created in French Law and it was created as an intermediar structure between a trading company and an association. The organisation and the function of a group of economic interest is increased on his members’ will. The idea of creating a group of economic interest was determined/born out of the necessity to provide a judicial instrument what attenuates the formalism of a trading company, but also removes the disadvantages of an associatioan regarded to the lock of juridical personality. The trading companies implied in such a group maintain their administrative and functional authonomy and their own identity as a juridical person. The European Group of Economic Interest is a legal person which aims, exclusively, the cross-border economic cooperation between European Union member states. The European Group of Economic Interest is, generally, a legal person (except for some member states like Italy, Austria or Germany). The acknowledgement of this statute helps realizing the group’objectives (the development of the member’s activities). In all states, a group has the capacity, in his own name, to have the any kind of rights and obligations. A group can conclude a contract or any other legal act, can take part in lawsuite, accordingly to European Law. The areas that are not mentioned by the stipulations of the european Council’s Regulation are regulated by the competition and intellectual property national law. The European Group of Economic Interest, at least theoretically, proves to be a flexible legal instrument, first of all, because it adapts to the different needs of its members. First of all a European Group of Economic Interest offers for its members the possibility to unite their forces and resources in order to obtain better economic results together. Its advantage stands in the flexibile organisation and function and in the fact that it does not necessary require a registered capital.
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Potrivit art. 1491 C.pr.pen., procurorul, când considerã cã arestarea inculpatului este în interesul urmãririi penale, întocmeşte propunerea motivatã de luare a mãsurii arestãrii preventive a acestuia numai dupã ascultarea inculpatului în prezenţa apãrãtorului. În plus, conform art. 150 alin. 1 C.pr.pen., mãsura arestãrii inculpatului poate fi luatã numai dupã ascultarea acestuia de cãtre procuror şi de cãtre judecãtor, afarã de cazul când inculpatul se aflã în strãinãtate ori se sustrage de la urmãrire sau de la judecatã ori se aflã în una dintre situaţiile prevãzute în art. 1491 alin. 6 C.pr.pen. (cu notã criticã). -
In the article, the author claims that the settlement of the proposal for remand in custody in open session, although the law provides for the settlement in closed session, as well as a decision, even if it was made by the Registrar, in violation of the law, and did not cause essential harm, such as to justify annulment of the act, while the delivery order was made, that public notice of the solution given by the judge, are subject to relative nullity. Also, it was assessed that, during the settlement proposal for remand in custody is not necessary for the court to rule on the defense request to undertake, before the defendant, the obligation not to leave the city or country, the obligation of examining taking less intrusive preventive measures, being included in the analysis of the necessity of the remand in custody.
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For the correct qualification of an act of a servant who, in the exercise of his office duties, knowingly does not act or fails to act correctly, by misleading a person, presenting as true a false or misleading act or as false a true act, it is necessary to draw the line between fraud offence, involving a misleading activity, and the offense of abuse of office against private interests as malfeasance while in office, regarding which the question is whether it can be committed through acts of deceit and in case this possibility exists, if it will be considered abuse of office against private interests, or there are cases, although this special quality exists, it will be considered fraud offence.
