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As a novelty, the legislator provides, in the current Civil Procedure Code, that the evidence of an act or of a legal fact can be made, among others, by using the material means of evidence (Article 250), to which it dedicates the provisions of Articles 341–344, provisions which constitute the common law in the matter. Things which, by their attributes, by their appearance or by the signs or traces they preserve, serve to establish a fact that can lead to the settlement of the trial are material means of evidence. Likewise, in the legislator’s conception, the registrations of the state or location of objects or certain factual situations, regardless of the way of registration, are also material means of evidence. In this hypothesis, the material evidence (the content of the registration) is submitted to the court through the technical support used for registration. The solution of the legislator to acknowledge, in the Civil Procedure Code, provisions relative to the material means of evidence is natural, since, in accordance with the criteria used in the doctrine, material evidence is direct, primary, or immediate evidence, personally perceived by the judge of the case. Perhaps that one of the sources of inspiration for the Romanian legislator was the Civil Code of Québec. Although the French civil legislation does not contain express provisions on the material evidence, the French doctrine and the case law of the French Court of Cassation in the matter have also represented a reference for the Romanian legislator. -
Termination of payments or insolvency is the patrimonial state of an entrepreneur that is outlined by the impossibility of creditors to pay. In this case, a collective procedure is in place to cover the insolvency debtor’s liability, a procedure governed by the provisions of Law No 85/2014 on insolvency and insolvency prevention procedures. This procedure, although it is a collective one, retains its contradictory character, litigious issues being usually settled with parties summoning. The fundamental principles of the civil process governed by the Civil Procedure Code also apply to insolvency. The Civil Procedure Code is the common law of insolvency where the Insolvency Law does not contain special rules. The way in which the participants in the procedure are summoned or notified, as well as the manner in which the communications of procedural documents and information in the insolvency proceedings are made, are simplified and dematerialized. Notifications and communications are made through the Insolvency Procedures Bulletin (BPI), an electronic publication managed by the Trade Registry. Anyone can get information on a business partner’s insolvency procedure through a simple search in this database.
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This article analyzes the particularities of the suspension by judgment of the enforcement of administrative acts. The legal institution of suspension of the enforcement of administrative acts is a legal instrument made available to the persons claiming to be injured and constitutes a guarantee against the producing of some irreparable damage. The author investigates the conditions and legal effects of the suspension of the enforcement of the administrative act after formulating the prior complaint and the suspension requested in the main proceedings, including also some proposals de lege ferenda. The research is carried out taking into account the latest amendments to the Law on administrative disputes No 554/2004 by the Law No 212/2018 amending and supplementing the Law on administrative disputes No 554/2004 and other normative acts. Also, within this research, the author refers to the decisions of the Constitutional Court on the pleas of unconstitutionality raised in this matter.
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The article sets out two components of the case of cassation on the application of the punishment within other limits than those provided by law: the scope of incidence the case of cassation in question and the solutions that may be given subsequent to the admissibility of the means of the appeal in cassation and the cassation of the challenged judgment, in this case. In the scope of incidence of the case of cassation on the application of punishments within other limits than those provided by the law several assumptions of violation of the principle of legality of the criminal law sanctions are included. First, the appeal in cassation is suitable to remedy illegalities which relate to the very nature of the sanction applied: punishment or educational measure. Secondly, an appeal in cassation may be filed to remedy illegalities related to punishments, regardless of their nature: main, complementary or accessory. Thirdly, within the category of main punishments, by way of appeal in cassation illegalities concerning the placement of punishment outside the special limits can be remedied, in the absence of a individualization cause. Under a first aspect, there may be invoked illegalities concerning the placement of punishment below the special minimum limit, in the absence of a mitigating cause. Under a second aspect, there may be invoked illegalities concerning the placement of the punishment over the special maximum limit, in the absence of an aggravation cause. Also within the category of the main punishments, by way of appeal in cassation there may be remedied illegalities resulting from the misapplication of the criminal treatment of the various causes of individualization.
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The legality of judgments adopted by courts, the effectiveness of law enforcement functions and the enforcement of criminal repression in respect of offenders are the priority issues that justice reform in the Republic of Moldova must address. The existence of an independent and impartial judiciary is an inherent attribution of a state without which a democratic society can not be built. And, the protection of legality in the field of justice is indispensably conditioned by ensuring the achievement of the purposes of the judicial process.
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Competența materială de a judeca propunerea de arestare preventivă a inculpatului față de care s-a pus în mișcare acțiunea penală pentru infracțiunea de nerespectare a regimului armelor și munițiilor, prevăzută de art. 342 C.pen., aparține judecătorului de drepturi și libertăți din cadrul judecătoriei, chiar dacă în cauză s-a început urmărirea penală in rem pentru infracțiunea de constituirea unui grup infracțional organizat, prevăzută de art. 367 C.pen.
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Ideea de reparație este, cum scria un autor, „una din cele mai vechi idei morale ale omenirei” (G. Ripert, La règle morale dans les oblig. civiles nr. 121, p. 223). În decursul timpurilor ea a suferit o serie de transformări, a parcurs mai multe etape, rezumate în cele 4 subtitluri ale studiului de față, care urmărește numai să schițeze în linii mari sensul acestei atât de interesante evoluții, care are semnificația drumului penibil al însăși ideei de Dreptate. Noțiunea de răspundere, în adevăr, se situiază în centrul tuturor instituțiunilor juridice care au de obiect reglementarea raporturilor între indivizi în societate, având un rol regulator și sancționator, întru cât tinde la păstrarea echilibrului rupt prin actele ilicite, fie că sunt violări de obligațiuni contractuale, fie că au caracterul și mai grav al călcării unor norme de conduită, pe pare societatea însăși le impune și îndeosebi acea normă negativă universală de neminem laedere, care constitue în esență principiul din care decurge însăși ideea de răspundere.
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Este foarte dificilă cercetarea noțiunei de ordine publică și determinarea conținutului acestei noțiuni este cu totul anevoioasă. Nu există, poate, în drept și în sociologie, o mai confuză noțiune, dar care să-și găsească mai variate câmpuri de aplicație și de care să se facă uz mai des, mai ales în ultimele timpuri, atât în relațiile particulare dintre indivizi, cât și în legăturile și raporturile dintre Stat și individ de o parte sau dintre State, de altă parte. Stabilirea conținutului exact al ordinei publice și analizarea tuturor efectelor sale depășesc cu mult cadrul normal al unui articol, chiar mai lung, dintr’o revistă juridică. Vom căuta totuși, în cele ce urmează, a schița rapid datele problemei, fără a pretinde că, în acest fel, am epuizat subiectul; de altminteri, intenția noastră nu este decât de a face o sumară introducere în examinarea acestui subiect a cărui analiză poate face obiectul unui întreg tratat.
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Marcarea Centenarului Marii Uniri (1918–2018) a ridicat fundamentala problemă a abordării unitare, din perspectiva succesiunii în timp a reglementărilor, impactului lor social și evoluției ideilor, a dezvoltării juridice a României la scara ultimului secol, relevându-se, totodată, și pe această bază, mizele prezentului și provocările viitorului pe termen mediu și lung. Acest eveniment a oferit ocazia unei analize complete și în spiritul adevărului istoric a fenomenului complex și major al unificării juridice interbelice – legislativă, judiciară și doctrinară – ca parte inseparabilă a procesului de desăvârșire a unității naționale și fundament organic al științei dreptului și culturii juridice românești. -
The courts can not censure the decisions of the Constitutional Court in terms of the statements which they contain with regard to the unconstitutionality of a legal norm and the impact they have on the way of settling the ongoing disputes, respectively not finalized through the pronunciation of some irrevocable judgments, following the cessation of the application of that norm by declaring it unconstitutional. They have the obligation to apply the decisions of the Constitutional Court to their letter and spirit and they can not add by way of interpretation elements that are capable of restricting them or, respectively, to extend their scope. By the Decision of the Constitutional Court No 369/2017 it has been stated that all the judgments pronounced after the publication of the decision in the Official Gazette of Romania are subject to appeal, in the cash assessable applications, except for those exempted according to the criterion of matter, expressly provided in the theses covered by Article XVIII (2) of the Law No 2/2013. In the application of this decision, the High Court of Cassation and Justice – the Panel for the settlement of some matters of law, by the Decision No 52/2018 has stated that the effects of the decision of unconstitutionality will concern all judgments pronounced after the date of its publication, but in trials commenced after 20 July 2017. By this statement, the decision of the Constitutional Court No 369/2017 has been amended without justification under the pretext of the settlement of the matter of law concerning the application of that decision over time. By the Decision of the Constitutional Court No 454/2018 it was established that the High Court of Cassation and Justice does not have the power to rule on the effects of the decision of the Constitutional Court or to give binding rulings which are contrary to the decisions of the Constitutional Court, but has the obligation to apply that decision in such a way suitable to its considerations to the case subjected to judgment. The Decision No 454/2018 has an interpretative character and therefore, by way of derogation from the principle according to which the decisions of the Constitutional Court apply only for the future, it has a retroactive effect, in the sense that it is put into application from the date when the Decision of Constitutional Court No 369/2017 began to take effect.
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Within the international trade relations, risks may currently arise from certain facts or events that result in conflict situations between the parties involved in commercial operations, having as consequence the appearance of the litigation. In this context, a special place is occupied by maritime litigation, a complex, plurivalent dispute, combining elements emerging from international trade law, transport law and maritime law. The present study aims to identify and analyze the main issues that give the maritime litigation a particular nature, conferring it, legally, a specific character compared to other international trade disputes. The objectives of the research are circumscribed to the analysis of the characteristics of the maritime litigation, of the causes of its occurrence and of its conditions of manifestation. Within the paper, special attention was devoted to studying how to instrument the maritime litigations, with the methods of the maritime technique and the legal and economic solutions used in this matter. With regard to the procedures of settlement of maritime litigations, the study focuses on highlighting the operational phases, the analysis of evidence and of other issues that configure the applicable procedural framework in case the parties involved have expressed the option to settle the dispute for the contentious procedure. Examining the specific features of this original type of disagreement has highlighted a pronounced pragmatic character over the theoretical argumentation taking into account the force of maritime or harbour regulations or usages in this field. The notion of maritime litigation and its regulation became outstanding at a stage preceding the emergence of maritime law. Over time, seafarer’s practices have created usages and traditions specific to trade in goods carried by sea, which have led to the unification and even codification thereof in the context of classical maritime law. The scope of the notion of maritime litigation is much wider than that of the maritime trial and has an earlier application over time, whereas only a part of the maritime litigations lead to a proper judicial trial or to a maritime arbitration. Maritime litigations can be defined as disputes between two or more parties involved in the maritime expedition or between the signatory parties to specific contracts used in all activities related to maritime trade. In this regard, disputes of a maritime nature may arise as a consequence of the non-performance or malfunction of maritime transport contracts, so that it is indicated to mention in these contracts some specific clauses, stating the modality and rules for solving such conflict situations, including the jurisdiction clause, since the non-inclusion of this clause raises disputes over the jurisdiction of the courts of such litigious cases. Maritime litigations are dealt with by the specialists in the field both in the ante-judicial and judicial stage, through the correct coordination of the parties involved and the professional settlement of all the litigious aspects. The specialist in maritime litigations should be a person with cumulative competencies in the technical, economic and legal field, maritime navigation and port exploitation. Solving major maritime disputes is a complex and laborious process, which requires pragmatism, accuracy, increased attention, quick decision and efficiency. The general procedure for dealing with this disagreement is carried out on the basis of a strictly technical, specialized methodology and requires going through several phases such as the finding the occurrence of the event or conflict-generating act, the notification of the parties involved, the collection and preservation of the evidence for defence or for the drawing up of the complaint, quantifying and filing the complaint, taking a decision on the modality of approach, the negotiation and pronunciation of the solution to finalize the case. The resolution of maritime litigations is based on the case law in the field, strongly influenced by international maritime conventions and on the relations created between the rules from various law systems, applicable in the field, in the context of assimilation and implementation of the international trade usages.
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The study analyzes the opinion on the repeal of the filter procedure when the review in the civil trial is within the competence of the High Court of Cassation and Justice. The author presents the analysis of the manner the filter procedure was regulated by the Law No 134/2010, the Civil Procedure Code and the arguments for which it considers that the repeal of this procedure is not justified. The result of the study is reflected in the opinion according to which the filtering procedure had to be maintained, for the settlement of the reviews in the civil trial, by the supreme court. The filter procedure was first introduced in the civil processual legislation by the Government Emergency Ordinance No 58/2003. Those provisions introduced a new procedure of settlement of the review, irrespective of the court which settled the review, that of the admissibility in principle of the review, prior to the actual settlement of the application for review, which carried out the preliminary examination of the application for review. By the Law No 134/2010 the filter procedure has been regulated only in case the review was settled by the High Court of Cassation and Justice. By the Law No 310/2018, amending and supplementing the Civil Procedure Code, the filtering procedure has been repealed although, in the initial form, it was proposed to put the text of Article 493 of the Civil Procedure Code in agreement with the provisions of the Decision of the Constitutional Court No 839/2015, which has declared unconstitutional the phrase „or that the review is manifestly unfounded”. In this respect, the text of Article 493 (5) of the Civil Procedure Code should have been as follows: „In case the panel unanimously agrees that the review does not meet the formal requirements, that the grounds invoked and their development do not fall within those provided by Article 488, it shall cancel the review by a reasoned decision, pronounced without the summoning of the parties, which is not subject to any means of appeal. The decision shall be communicated to the parties”. Maintaining the filter procedure, in our opinion, contributes to decongesting of the supreme court to settle the reviews that do not meet the conditions for exercising this extraordinary means of appeal.
