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This study, while indicating the absence of systematic doctrinal concern in relation to the meaning of the term „child” used in the Constitution, in the Civil Code and in several other internal or international normative acts, suggests to approach this term, lato sensu, as relative of first degree in the direct line of descent and, stricto sensu, as minor person without full capacity of exercise. Likewise, the author analyzes the definition given to this term in Article 1 of UNO Convention on the Rights of the Child and he presents some of its consequences on the internal regulations in the field. -
In this study, the author examines the incidence of the provisions of Article 1221 et seq. of the new Civil Code (concerning the lesion) in the field of „business law”. In this respect, after a series of general considerations on the lesion in the context of the new Civil Code, as well as in the context of clarification of the concept of „legal relationships arising in the business environment”, the author examines, in detail, the problems of contracts in the business environment, by emphasizing, within the latter, their division into balanced contracts and imbalanced contracts. Such being the case, the author concludes that, in principle, the lesion is inapplicable in case of balanced contracts, but is incidental, as a rule, in case of imbalanced contracts.
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This article makes a brief presentation of the new basic principles of Romanian criminal proceedings, which represent general rules contained in the legislation of the Member States of the European Union, considered to be the basis of modern criminal proceedings. The validity and efficiency of these rules have been tested by the judicial practice in France, Italy, Belgium and others and by the case-law of the European Court of Human Rights.
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The Romanian legislator has introduced an innovation in criminal proceedings matters: the institution of the suspect, which is questionable from several points of view. According to the provisions of the new Romanian Criminal Procedure Code, the suspect is the person about whom, from the existing data and evidence in the case, a reasonable suspicion arises that he has committed an offence provided by the criminal law; the quality of suspect is acquired only when the prosecutor orders that the criminal prosecution – which had previously started only with regard to the deed (in rem) – be further conducted against that person. The suspect is not a party in the criminal proceedings, but a main subject to proceedings. In this study, the authors analyze the institution of the suspect, by presenting some critical aspects and by proposing the reconsideration of its regulation.
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Throughout this study the author intends to emphasize some innovative aspects introduced by the new Criminal Procedure Code concerning the criminal prosecution stage, and also some legal provisions insufficiently conceptualized and corroborated with the regulation in its entirety. Aspects related to the referral and the jurisdiction of criminal prosecution bodies are analysed, as well as those pertaining to the beginning and progress of the criminal prosecution, and to the decision not to indict. The author also makes some proposals de lege ferenda meant, in his opinion, to remove or clarify those legal provisions which he appreciates as being contradictory.
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The new Civil Procedure Code brings some elements of novelty with regard to producing the proof by expertise, also maintaining many of the solutions of the former legislation. This study presents the most important aspects with regard to producing the proof by expertise, using the doctrine and the practice from the period of application of the Civil Procedure Code of 1865 and attempting to interpret the elements of novelty brought by the current procedural legislation.
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This article presents one of the substantial conditions required by law for the valid conclusion of marriage, that is the consent. After a brief introductory part, the conditions of consent to marriage are analyzed: the condition of existence of the consent, the condition of free expression of the consent, the condition of fully-expressed consent, the condition of public expression of the consent and the condition of direct establishment of the consent by the civil status officer. The final part is devoted to the conclusions drawn from this study.
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The Romanian Civil Code of 2009 has taken over derogatory rules with regard to the nullity of company from the matter of companies with legal personality regulated by the Law No 31/1990, as well as from the European regulations in the field. In this way, the principle of safeguarding the company has acquired a general application in the matter of all companies, regardless of their type. The exceptional rules, which were initially applied only to the companies regulated by the Law No 31/1990, outlining the idea of an atypical nullity, have been thus transferred to the Civil Code, becoming general rules applicable to all private law companies.
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The importance of the crediting relations in a market economy justifies the attempts of the legislator to periodically reform the legal regime of security interests necessary for the performance of obligations. The change in Romania began in 1999 by abolishing the interdiction on movable property mortgaging (and establishment of the so-called security interest in movable property) was continued by the new Civil Code, which has introduced new instruments of obligational law, as well as rules that allow an increased dynamics of the real mortgage right. This study deals with the autonomous assignment of the real estate mortgage right, as well as with the possibility of changing the mortgage rank in the same matter. Even if the practice has not known yet a serious application of these operations, the raised issues should be approached, both for theoretical clarification and in order to detect the intention of the Romanian legislator in respect of the extent of the ancillary nature of the mortgage against the secured claim.
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Potrivit prevederilor art. 6 alin. (4) C.civ., prescripțiile, decăderile și uzucapiunile începute și neîmplinite la data intrării în vigoare a legii noi sunt în întregime supuse dispozițiilor legale care le-au instituit, iar potrivit art. 204 din Legea nr. 71/2011 dispozițiile art. 2539 alin. (2) teza a II-a C.civ. se aplică și în cazul cererii de chemare în judecată sau de arbitrare introduse după intrarea în vigoare a Codului civil. Conform art. 2539 alin. (2) C.civ., prescripția nu este întreruptă dacă cel care a făcut cererea de chemare în judecată sau de arbitrare ori de intervenție în procedura insolvenței sau a urmăririi silite a renunțat la ea, nici dacă cererea a fost respinsă, anulată ori s-a perimat printr-o hotărâre rămasă definitivă. Cu toate acestea, dacă reclamantul, în termen de 6 luni de la data când hotărârea de respingere sau de anulare a rămas definitivă, introduce o nouă cerere, prescripția este considerată întreruptă prin cererea de chemare în judecată sau de arbitrare precedentă, cu condiția însă ca noua cerere să fie admisă. -
This article deals with the legal status of founders of a company regulated by Law No 31/1990 in the light of differences between the founders de facto and the founders de jure. The main idea of this article is that, while the law makes various references to persons that acquire rights or benefits as a result of establishing a company without signing the setting up document, this means that such persons acquire, at the same time with the rights, a series of obligations as well. It therefore starts from the interpretation of some legal terms in order to determine which are the conditions in which the persons concerned acquire obligations, including in the light of the (British) comparative law. In conclusion, if the definition of founders de jure is a problem outside any doctrinal debate, the definition of the founders de facto requires some clarifications.
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Acquiring of the status of full member in the European Union by Romania has also generated the allocation towards Romania of European funds through financing contracts for the purpose of achieving projects of national interest. Considering the ambience of the domestic regulatory framework harmonized with the EU legislation, this study provides an analysis of the legal nature of such financing contracts, as well as of the complex and controversial problems of liability of persons involved in the management of European funds.
