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The author analyzes the procedure to be followed on the hypothesis that the applicant proves that it is impossible for him to trace the domicile of the defendant. The principle of settlement of the trial within due and foreseeable time, the necessity of going through the procedure preliminary to the first hearing term instituted by law, the safeguarding of the right to defense of the respondent are taken into consideration. There are also examined the modality and the time when the law court designates the special guardian to represent the interests of the respondent, starting from the regulations of the Civil Procedure Code in this matter. -
In this study, the author expresses a series of personal considerations on the civil liability of the transport operator (the carrier) in the regulation of the new Romanian Civil Code, specifying that, against the recipient, dispatcher and passenger, the mentioned liability is contractual liability, while against third parties it is tort liability.
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This article emphasizes the specific elements of the repurchase agreement as regulated in the new Civil Code. In order to achieve this goal, the author first engages in a general characterization of the type of contract under examination, in the light of specific elements concerning the contracting parties, the object of contract and the time of fulfilment of some obligations undertaken by the parties. The study further defines the concepts „repurchase” and „reverse repurchase” and delimits the repurchase agreement from other types of similar contracts, thus configuring more clearly the analyzed convention. Another specific element of the contract under scrutinity is its sui-generis legal nature, which the author explains since there isn’t an unanimous opinion on this issue in the doctrine. At the same time, the specificity of the repurchase agreement is emphasized by dealing with its main effects: the double transfer of property, the transfer of ancillary rights, the obligation of the buyer to exercise the option, as well as the obligations of the seller to make available to the buyer the funds necessary for exercising the right of option and for making the payments. Last but not least, the specificity of this type of contract is also revealed by reflecting the differences among the liquidation, the prorogation and the renewal of the convention under debate. The study presents the points of view expressed in the specialised literature on the studied matter, as well as the author’s opinions on the controversial legal issues in the reference space.
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The study presents the new provisions of the Civil Code on tort liability for the act of the animal and the act of the thing by establishing the scopes of these liability hypotheses. Along with the traditional rules established in the former Civil Code, as innovative elements, the legal guard was defined, in Article 1377, and provisions concerning the liability in case of collision between motor vehicles and the liability for things that fall down or are thrown out of a dwelling place owned with any title were introduced.
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Pursuant to Article 1541 (1) b) of the new Romanian Civil Code, which entered into force on 1 October 2011, the court may reduce the amount of the penal clause if „the penalty is clearly excessive as compared to the prejudice which could have been provided by the parties upon the conclusion of the contract”. The author considers that the text is incomplete, in the sense that it does not specify whether the reduction of the penalties may be ordered by the court only on the debtor’s request (the system referred to in BGB – the German Civil Code) or also ex officio (a system presently regulated by the French Civil Code). The author believes that the reduction of the amount of penalties in question can not occur ex officio because fundamental principles of civil proceedings (especially the principle of availability) are violated. Finally, the author proposes an amendment of Article 1541 (1) b) of the Civil Code in order to be expressly stated whether the reduction of penalties occurs only on request or also ex officio.
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The proposed study is a systematic and systemic analysis of the rules of the Civil Code established for the „possession of status”. While reviving and modernizing the archaic regulations of the Romanian Civil Code of 1864, the present Civil Code establishes the meaning and the content of possession of status, as well as its effects where it is consistent with the data written down in the birth certificate concerning the filiation of the child to the mother. In this context, it is also pointed out the existence of some issues which require normative correlations (even among some paragraphs or sentences within the same article), legal and logical improvements and compatibility adjustments with the general principles of law.
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This study sets some reference points for a new institution regulated by the Criminal Procedure Code – the judge of rights and freedoms – from a perspective which stresses its role in protecting the rights and fundamental freedoms, as they are established by the Constitution and by the international treaties on human rights to which Romania is a party.
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Brokerul de asigurare, care are și calitatea de mandatar al unei întreprinderi de asigurare străine, fiind împuternicit de aceasta să soluționeze cererile de despăgubiri în eventualitatea accidentelor de circulație produse de autovehicule asigurate în străinătate, nu este parte la raportul juridic obligațional născut prin producerea faptului delictual. Astfel, întrucât brokerul de asigurare este terț față de contractul de asigurare în temeiul căruia au fost solicitate despăgubirile, acesta nu poate fi obligat în nume propriu la plata despăgubirilor. (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 2156 din 30 mai 2013) -
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After a general presentation of the institution of house arrest, the author analyzes a specific aspect referring to this new preventive measure provided in the new Criminal Procedure Code, namely the maximum duration of house arrest pending judgment at first instance.
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The Treaty on European Union includes not only the core of the Community rules, but also references to the necessity to bring some amendments to the national legislation of Member States in accordance with these rules. Complying with this requirement, the Romanian legislator constantly brings amendments which, in criminal matters, involve an interdisciplinary approach, imposing compliance with general principles of law and with principles specific for the protection of human rights and for European Union law.
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Given the absence of solutions expressly provided by law, national criminal courts now apply, with more courage and in the interest of justice, fundamental principles of criminal process as laid down by the Constitution, the Criminal Procedure Code and the practice of the European Court of Human Rights, which provides free access to justice, including judicial control on the acts of the prosecutor. In this context, the old adage „Justice is blind” may be replaced with a new concept, better suited to new national, European and international economic and social relations – „Justice is not always blind”.
