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The foundations of European Union law lie in the reasons that European decision-makers have identified, after the two World Wars, firstly, for the establishment of the European Coal and Steel Community and then of the European Economic Community and the European Atomic Energy Community. These reasons, however, find their origins in the events that essentially marked the first half of the 20th century, identifying themselves, among other things, through the developments recorded by the international society, namely the international law, in general, evolutions which the European society, and, implicitly, the European Union law, would not have been possible to avoid. -
The present study aims to analyze the autonomy of will regarding the civil legal act, by reference to the limitations that the legal norms, public order or good morals set both in terms of substance and formally. The legal will, a complex psychological phenomenon which is the basis of the conclusion of any legal act, is governed by two basic principles, namely the principle of real will and the principle of freedom or autonomy of will. The principle of real will, enshrined in Romanian law, gives valency to the internal/psychological element to which the party is animated at the conclusion of the civil legal act. As for the principle of autonomy of will, it finds its legal consecration in Article 1169 of the Civil Code, establishing the parties’ freedom to conclude any contracts and to establish their content. However, this freedom must not be viewed in absolute terms, knowing a series of limitations of substance and form, which we have pointed out in this article. -
The debate over the future of the juveniles’ court and the juvenile justice system has been between proponents of a retributive philosophy and advocates of the traditional individual treatment mission. Both punitive approaches and those focused solely on treatment have failed to satisfy basic needs of crime victims, the community and offenders themselves. Neither offers hope for preserving a separate justice system for juveniles. This document outlines an alternative philosophy, restorative justice, and a new mission, the balanced approach, which require that juvenile justice system devotes attention to making amends to victim and the community, increasing offender competencies, and protecting the public, through process in which offenders, victims and the communities are all active participants.
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The procedure of payment order has been regulated as a synthesis, but also as a reformation of the two previous procedures materialized in the Government Ordinance No 5/2001 on the procedure of the payment summons and the Government Emergency Ordinance No 119/2007 on the measures for combating the delay of the performance of the payment obligations resulting from the contracts between professionals. In its legislative work, by the new Civil Procedure Code, the legislator has not only achieved a fusion between the two normative acts, but it has also inserted novelty legislative solutions, bringing numerous amendments to the procedure and following its adjustment to the current legal, social and economic realities, in the attempt to harmonize the Romanian legislation with the European one. This study makes a detailed analysis of the nature of the procedure of payment order, of the characters and of the way it was conducted within the current normative framework, as well as of the vast judicial practice, by identifying the novelty elements of the procedure regulated by the new Civil Procedure Code, which – beyond the guaranteed additional accessibility and efficiency – require clarifications and specifications. -
Further to the steps taken by the author in order to contribute to the study of the regulations in the field of legal protection of the „intellectual creation”, this study is devoted to the analysis of the definition, the substantive conditions and the reasons for refusal or for cancellation of the registration of the trade mark, especially in relation to the provisions of the Law No 84/1998 on trademarks and geographical indications and of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks. Where it has been necessary, de lege ferenda proposals have been grounded in order to improve the regulations devoted to the discussed aspects.
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The confession or the recognition has a mixed legal nature; it is primarily a means of evidence, but it also represents an act of disposition of the party that gives the confession. The legislator of the new Civil Procedure Code distinguishes between the probative force of the legal confession and the probative force of the extrajudicial confession, so that, in relation to the provisions of Article 349 (1) and of Article 350 (1) of the mentioned normative act, the two types of confession are no longer on the same level. The extrajudicial confession is left at the discretion of the judge and it may be challenged by the contrary evidence. Instead, the judicial confession is full proof against the person who gave the confession. -
The study tries to outline the concept of misuse of law as it is regulated in the new Romanian Civil Procedure Code, starting from the regulations of novelty introduced by the new Civil Code. Recognized in the case-law and in the doctrine as a phenomenon inherent to the exercise of the subjective rights, the misuse of law appears better outlined on procedural level, unlike the substantive law, both with regard to its constitutive elements and the conditions in which it can be found and in respect of the sanctions that may appear. Even if the regulation of the new Civil Procedure Code is wider, a series of discussions raise, further on, the issue of misuse of law in the matter of the right of action under the terms of express sanctioning for bringing, in bad faith, an application for summons or for exercising an obviously unfounded judicial remedy.
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The article presents the special cases where the defendant benefits from the mitigating effects of the abbreviated procedure, appreciating that they must also be extended in case the application for judgment has been rejected according to the abbreviated procedure, because the defendant did not recognize all the material acts in the indictment or all the deeds described therein, but after performing the judicial investigation the court retains the factual situation recognized by the defendant.
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This paper aims to analyze the difficulties which the Romanian judge faces, in the attempt to ensure the exigencies imposed by Article 6 of the European Convention on Human Rights in matters of reasonable time. In this regard, the paper is structured in three parts: the first part briefly presents the Court’s standard as regards the reasonable time; the second part analyzes the compatibility of an institution recently introduced in the Civil Procedure Code – the contestation concerning the delay of the trial (Articles 522–526 of the Civil Procedure Code) – to the notion of effective remedy, within the meaning of Article 6 and Article 13 of the Convention; the last part emphasizes, based on some jurisprudential examples, the risks which the national judge must manage very carefully when he tries to ensure the reasonable time: the risk of acting ultra vires and the risk of creating a non-unitary case-law, thus generating the premises of some new violations of Article 6 of the Convention. -
This study is meant to analyse the provisions of Article 333 of the Civil Code regarding the preciput clause. Specifically, there are discussed issues such as: the relevant provisions; the definition of the analyzed institution; the subjects, the object and the legal nature of the preciput clause; the legal characters of the preciput; the effects of the preciput clause; inefficiency and enforcement of the preciput.
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This study deals with the issues related to the regulation included in Article 262 of the new Criminal Code of Romania. The author notes that, as compared to the regulation prior to the entry into force of the new Criminal Code, the taking over in this Code of the norm of incrimination previously included in Article 70 of the Government Emergency Ordinance No 105/2001 on the state border of Romania has been preferred as a reflection of the importance given to the social value of the regime of the state border. At the same time, it is pointed out that the norm in the Code in force is subject to completion by provisions included in other normative acts, inferior to the law, as in the Government Emergency Ordinance No 194/2002 on the regime of foreigners in Romania.
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In this study the author makes an analysis of the institution of waiver of criminal prosecution, including from the perspective of other systems of law, of the conditions provided by law for ordering the waiver of criminal prosecution, as well as of other optional criteria of opportunity, which must be considered when ordering this solution provided by law. Likewise, he formulates some critical remarks referring to the practice of some units of the prosecutor’s office, the author also making some de lege ferenda proposals on some problematic issues.
