-
Dreptul larg de apreciere al autoritãţii administrative asupra punerii în executare a unor dispoziţii legale face ca neemiterea de cãtre respectiva autoritate a actului administrativ de punere în executare a dispoziţiilor de lege în cauzã sã nu constituie refuz nejustificat, în sensul art. 2 alin. (1) lit. i) din Legea nr. 554/2004. Este nelegalã, astfel, obligarea Guvernului României la emiterea unei hotãrâri prin care salariaţilor Societãţii Naţionale a Petrolului „Petrom” S.A. Bucureşti sã le fie vândute direct acţiuni ale acestei societãţi în limita a 8% din capitalul social în condiţiile art. 9 alin. (2) din anexa la O.U.G. nr. 49/1997 astfel cum a fost modificat prin art. V pct. 2 din O G. nr. 55/2003, având în vedere faptul cã prin acelaşi text legal legiuitorul a înţeles sã confere Guvernului un drept cu limite foarte largi de apreciere în ceea ce priveşte cota procentualã ce urmeazã a fi achiziţionatã de salariaţi şi momentele la care se va realiza achiziţionarea acţiunilor de cãtre aceştia. -
Cerinţa interesului de a fi actual trebuie îndeplinitã pe tot parcursul procesului, iar nu numai la momentul introducerii acþiunii. Astfel, în cazul în care pe parcursul procesului acþiunea promovatã de reclamant rãmâne fãrã interes, demersul procesual, iniþial justificat, rãmâne fãrã o finalitate practicã din punct de vedere juridic, soluţia consacratã jurisprudenţial în atare situaţii fiind aceea a respingerii acţiunii ca rãmasã fãrã interes (Înalta Curte de Casaţie şi Justiţie, Secţia comercialã, decizia nr. 2623 din 13 septembrie 2011). -
Cererea formulatã de debitorul cedat privind restituirea unei sume de bani achitatã A.V.A.S. în baza unui contract de cesiune de creanţã, prin care Ministerul Finanţelor Publice a cesionat A.V.A.S. creanţa pe care o avea faţã de societatea debitoare, sumã de bani nedatoratã, se încadreazã în dispoziţiile art. 45 din O.U.G. nr. 51/1998 care se referã la „cereri de orice naturã” privind drepturi şi obligaţii în legãturã cu activele preluate de A.V.A.S., cereri supuse unui termen special de prescripţie reglementat de art. 49 alin. (1) de 6 luni de la data la care s-a cunoscut, sau trebuia sã se cunoascã faptul sau actul pe care se întemeiazã (Înalta Curte de Casaţie şi Justiţie, Secţia a II-a civilã, decizia nr. 2928 din 4 octombrie 2011). -
In the above study the author reviews the terms of contentious appeal – according to various assumptions regulated by Law no. 554/2004 against the urban planning certificate, appraisals or agreements served for the issue of the building permit by relevant authorities in the field of environment protection and water management. Key words: urban planning certificate; appraisals/agreements for the issue of the building permit by relevant authorities in the field of environment protection and water management; legal requirements; applicable laws. -
Law no. 272/2004 regulated – in the aggregate – the legal regime of protection and promotion of the rights of children in Romania. In the research hereby, the author conveys some viewpoints on the rules of law mentioned in relation to the exercise of parental rights and responsibilities when determining the special protection measure of placement by the child protection committee, committee settled by the same law. -
Potrivit art. 145 alin. 12 lit. f C.pr.pen., organul judiciar care a dispus mãsura preventivã a obligãrii de a nu pãrãsi localitatea poate impune învinuitului sau inculpatului ca pe durata mãsurii „sã nu exercite profesia, meseria sau sã nu desfãşoare activitatea în exercitarea cãreia a sãvârşit fapta”, şi anume sã nu-şi exercite atribuţiile de primar (cu notã criticã). -
Government Emergency Ordinance No. 71/2009, serially amended and supplemented by Government Emergency Ordinances Nos. 18/2010 and 45/2010 established that Court decisions that became enforceable until December 31, 2009 and that concern salary rights to the benefit of the personnel from the budgetary sector shall be paid by budgetary authorities and institutions as follows: 34% in 2012; 33% in 2013; 33% in 2014, of the value of the enforceable title. The author considers that Government Emergency Ordinance No. 71/2009 (as amended and supplemented) does not infringe Protocol No. 1 to the European Convention on Human Rights and Fundamental Freedoms, as well as the applicable jurisprudence of the European Court of Human Rights. -
This study is dedicated to the Special Part of the Criminal Procedure Code, in terms of the amendments brought by Law No. 202/2010, with reference to criminal prosecution, judgment on the merits, ordinary and extraordinary means of challenge, enforcement decisions or special judgment procedures. The study contains equally an analysis of the new regulations introduced in the field of recourse in the interest of the law. The text comments concerning the referral of the case to another Prosecutor’ Office, the information of the next hearing date, the judgment in case of admittance of guilt, the limits of the recourse judgment, the procedure in case of review can be indicated as examples. For an easier understanding of the study, the sequence of the analyzed legal regulations complies with both the structure of the Criminal Procedure Code, and with the chronology of the texts of the amending laws. Otherwise, given the fact that the work is especially addressing practitioners in criminal law and in criminal procedural law and given the fact that, for reasons of economy of the publishing space, the amended or amending texts were only rarely and partially reproduced, authors believe that the latter should be concomitantly available for a complete understanding of the study. With special reference to the contents of the second part of the study, emphasis needs to be placed on the fact that the work tried to highlight both the progressive and positively innovating provisions in the criminal procedure, and certain errors, non-compliances or legislative omissions or potential lack of correlation with the constitutional provisions. CUMPĂRĂ ACUM
-
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. -
Arbitration is an alternative private jurisdiction to the State jurisdiction, in order to settle civil litigations. The private character of this jurisdiction is marked by the decisive role of the autonomy of will of the parties in the organization and conduct of arbitration, in the establishment of the arbitral tribunal, in which the arbitrators nominated by the parties are not designated by a public authority or by a public institution. The arbitrary source of the arbitration merges with the judicial nature conferred by the judgment pronounced, which enjoys the authority of res judicata and is executed in exactly the same way as any judgment pronounced by a state court. As a result, arbitration has a dual, contractual nature, through its source, and jurisdictional, through the judgment pronounced. In the present study several objectives have been pursued on the subject discussed, namely establishing the legal nature of the arbitral jurisdiction, the types of arbitration convention and its role, the elements of convergence between the arbitration clause and compromise, the formal requirements of the arbitration convention, its limits and the consequences and the exceptions from these limits in terms of trial, the conditions of validity of the arbitration convention, its effects and its effectiveness, the causes of cessation of the arbitration convention. -
The study aims to analyze the particularities of the cases of resolution of the maintenance contract, a contract that has its own, express regulation in the new Civil Code, as novelty. Some of these cases of resolution are expressly indicated in Article 2263 of the new Civil Code, and for other cases reference is made to the application of express provisions specific to the life annuity contract. As novelty, the new Civil Code (Article 2255) provides for the conclusion of the maintenance contract in authentic form, under the sanction of absolute nullity, a modification with implications on the resolution of the contracts because the conditions of execution will be clearer. The study analyzes the cases of resolution, which are the specific aspects and effects of the resolution of the maintenance contract. The analysis of the cases of resolution of the maintenance contract is made by identifying some relations and delimitations against the life annuity contract. The article examines whether the resolution is a cause of cessation of the contract or a sanction for the non-performance of the contract without justification, the last solution being the suitable one.
-
The study is devoted to the institution of civil tort liability, namely the matter of reparable prejudices, with a special look at the special assumption of liability consisting in the damage to the right to one’s own image, as a right of the human personality. The analysis has as its starting point the presentation of a case-law solution, whereby the court has awarded civil damages for non-property prejudices caused by committing an illegal act, consisting in the launching, without the consent of the complainant, on a social networking site of wide circulation – Facebook, of a blog for public debates about his professional work, in which he has used his image, without obtaining prior consent. As objectives of our research, we have established the conditions for the reparable prejudices under the tort liability, followed by an analysis of the special liability assumption by bringing prejudice to the right to one’s own image, as right of personality. In the realization of the study, through the results obtained, we have found that this way of approaching the topic by presenting a case study followed by a doctrinal analysis can be a useful tool for theoreticians, but also for the practitioners of law, in achieving the topicality and complexity of the problems, from the perspective of the legal discourse of the controversial issues, as well as of the didactic one.
