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Following the systematic examination of some normative acts in the field of administrative law, the National Integrity Agency has expressed its opinion in the sense that the exercise of the position of secretary of the administrative-territorial units (Bucharest Municipality, county and local councils), simultaneously with the position of chairman or deputy at the electoral bureau of the polling station generates a situation of incompatibility with the provisions of the Law No 161/2003 and Law No 35/2008. The author of this study combats this opinion of the National Integrity Agency (submitted for compliance to the county and local councils by administrative means), reaching a symmetrically opposite conclusion (there is no incompatibility in the given situation). -
Although in our daily activity we work mainly in the Romanian law (or, at most, the European law), we are firm supporters of the need to broaden our horizons and to understand the foreign legal systems in order to enrich our knowledge, but also to grow as professionals of law; in particular, when we refer to countries such as the United States, an important economic power, with a solid system of law, from which we can draw the inspiration ourselves. This type of „legal inspiration” helps us a lot to understand other systems of law and to collaborate in cases such as the enforcement of foreign legal decisions, the application of foreign law in local files, helping companies to develop their businesses also in other parts than the country of origin – including Romania. In addition, the Romanian law has been substantially improved over time, having as source of inspiration the legal provisions from other countries. The trademark law – the need to explore and compare the systems of Romanian and American law – resulted, first of all, from the practical need, but also from the desire for knowledge. Although at first glance it looks very different, the U.S. trademark system is very similar to the Romanian one. There are the aspects that could be improved if we found a way to include them in our own legal system. There are some similarities, but also differences, between the regulation of trademarks in the Romanian and American legal systems, and we have tried to highlight some of them. Primo Angeli, an expert in brands, mentioned: „A great trademark is appropriate, dynamic, distinctive, memorable and unique.” Thus, whether we call it brand or trademark, we are not as different as we might think. -
The state of emergency is one of the two exceptional measures regulated by the Romanian Constitution and by the Government Emergency Ordinance No 1/1999. It is a set of exceptional measures of a political, economic nature and of the nature of public order instituted when there is a serious danger for the national security and the functioning of constitutional democracy. Another legal reason to declare a state of emergency is to avoid a calamity or to exhaust the effects of a disaster. Inevitably, the measures adopted during the state of emergency lead to the restriction of the exercise of certain rights and freedoms, which is why constitutional and legal guarantees must be ensured in order for this restriction not to be abusive. The state of emergency is established for a period of maximum 30 days by decree of the President of Romania. The measures ordered by decree must be approved by the Parliament within a period of maximum 5 days. Contradictory opinions have been expressed in the doctrine regarding the legal nature of the decree of the President of Romania and of the acts issued pursuant to this decree (military ordinances and orders). Recently, the constitutional contentious court and the administrative contentious courts have ruled on the legal nature of administrative acts issued under the state of emergency. The next step in the evolution of this problem should be the reform of the normative framework regarding the exceptional states in accordance with the current provisions of the Basic Law, with the constant case law of the constitutional contentious court and, last but not least, with the approaches of some similar European regulations.
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Preliminarii. Termenul de securitate are o adresabilitate variată și complexă, putând influența și afecta atât individul, cât și orice nivel de organizare socială, colectivitate, stat sau organizație internațională. În mod sintetic, noțiunea de securitate1 implică lipsa oricăror amenințări, dar și posibilitatea prezervării unui nucleu de valori și a bunăstării2. Pentru orice individ și pentru o comunitate în ansamblul său sentimentul de securitate este acut și se construiește pe trei coordonate esențiale: liniștea, ocrotirea și absența fricii. Aceste trei coordonate definesc sensul primar al noțiunii de securitate a cărei etimologie provine din latinescul securus, desemnând pe cel care nu se teme (sine cura)3. -
In this study, the authors bring forward the main features of electronic monitoring programs and services for defendants and convicts, pointing out, concurrently, both their strengths and their weaknesses found in the implementation process. The authors also argue for a serious debate on national level, held on the imperativeness and opportunity to implement these services and programs in Romania, in the context of current penal reform. -
The present study aims to give an answer to the legal framework regarding the possible staff reduction followed by dismissal, measures that would have as sole purpose to increase the profit of the employer. Against the background of the ambiguity of Article 65 of the Labour Code, it is considered that such a measure is rationally possible only if the employer has a profit that is below the level of the average profit existing in the sector/field of activity (a situation that can be evaluated in relation to the financial data from the Trade Register Office and with the data that is published periodically by the Ministry of Public Finance). Only in such a case the condition of the real and serious cause is met.
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Este incontestabil că intrarea în vigoare a noului Cod penal a ridicat unele probleme în mod deosebit în practica aplicării legii penale mai favorabile, probleme ce au primit soluții diferite, evident în continuare controversate. În acest fel, odată cu intrarea în vigoare a noului Cod penal, la 1 februarie 2014, în practica aplicării legii penale apar situații diferite cu consecințe și reglementări deosebite în care se pot găsi persoanele care au săvârșit infracțiuni, astfel: -
In this study, the author makes an analysis – partly critical – of the provisions of Article 2358 (1) and (2) of the new Romanian Civil Code referring to the assignment of the mortgage and of Article 2427 of the same Code regarding the change in rank of the mortgage. Although the author appreciates, in general, as positive the regulations of the new Romanian Civil Code related to the assignment of mortgage and to the change in its rank, separately from the claim which it guarantees, nevertheless, in the conclusion there are retained a number of shortcomings in the drafting of the mentioned texts, for which reason several de lege ferenda proposals are made. -
The herein study strives to concentrate the main theses developed by the Court of Justice of the European Union regarding the right to paid annual leave. Starting from these premises, it aims to detect the interferences and the effects of European jurisprudence on Romanian national law, with a special view on the practical protection of the right to paid annual leave, in both of its components, the entitlement to annual leave and to a payment on that account. The underlying of the carry-over period’s function represents the basis of the conclusions regarding the necessity for a rigorous distinction between the causes of non-exercise of the right to annual leave by the employee, consequently, reflecting in the different judicial solutions. From the point of view of the Romanian procedural law, the study underlines the need to amend the law regarding the limitation period of the right to action in court for the protection of the non-material component of the right analysed, in order to meet the imperative of full harmonization with the European law.
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In this study the authors present a series of considerations on the decisions of the Constitutional Court and their effects, in the light of the provisions of Article 147 of the Romanian Constitution of 1991 (revised in 2003 and then republished on 31 October 2003), of the provisions of the Law No 47/1992 on the organization and functioning of the Constitutional Court (republished on 3 December 2010), as well as of the relevant case-law of the Constitutional Court in the matter. In this regard, the authors examine, sometimes in a critical manner, the following problems: the acts by which the Constitutional Court exercises its powers; why the decisions of the Constitutional Court have a general binding nature; whether there is a typology of the decisions of the Constitutional Court or not; the interpretative decisions of the Constitutional Court; the relations of the Constitutional Court with other public authorities arising as a result of the decisions of the Constitutional Court; the effects of the decisions of the Constitutional Court establishing the unconstitutionality of some legal provisions of parliamentary laws, ordinances, regulations and resolutions; the effects of the decisions of the Constitutional Court establishing the unconstitutionality of some provisions included in laws, before their promulgation; the effects of the decisions of the Constitutional Court on the constitutionality/unconstitutionality of the treaties or of the international agreements; the decisions of the Constitutional Court are generally binding and are effective only for the future.
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Compensation for damage related to the environment (environmental damage, lato sensu) – harm to the (ecologically “pure”) environment and damage to persons or property caused by pollutants, harmful actions and disasters - is achieved in Romanian law through several legal regimes: tort liability, under the Civil Code (liability for the deeds of its own, deeds based on guilt, fault liability, the deed of things, liability for abnormal neighborhood disturbances), environmental responsibility (covered by Directive no. 2004/35 / EC, transposed into the national law by the Government Emergency Ordinance no. 68/2007), the objective liability of legal origin and liability for damage caused by defective products. The main criterion is in this regard the term “environmental harm” and the concept of environmental damage (lato sensu). The construction of the liability and compensation for damage related to the environment (environmental damage) system involves delimiting the action field of each type of “liability”, “repair”, establishing the specific rules applicable and capturing the relevant structural interdependencies. -
In this study, the author makes an analysis on art. 45 to 46 of the Romanian Labor Code (Law no. 53/2003, republished on 18 May 2011) on the legal institution of posting. In this respect, the paper examines a number of controversies of the legal literature in this matter, after which the author, motivated, exposes his own opinion. -
Law no. 287/2009 regarding the Civil Code introduces in the matter of successoral option many new items here and there, reconfiguring it. In this study, we propose to examine the general aspects that the successoral option involves in the light of the provisions of the new Civil Code, to highlight the new items brought by this legislative instrument in the matter subject to the examination et to assess their progressive nature. -
Like other modern enactments, the current Romanian Civil Code provides for a series of „rights of the personality”, which include, inter alia, the right to honour. The authors of this paper make a series of considerations in relation to this right „to honour”, in relation to both the Romanian legislation and legislations in Western Europe, taking into account that, in the Romanian legal doctrine, the right in question has been less studied prior to the entry into force of the current Civil Code (1 October 2011). -
The patrimonial civil rights the content of which has a pecuniary value include the real rights and the claim rights. The claim rights must be regarded directly as a relationship between persons, and, only indirectly, as a relationship between persons and things. The present study aims to analyze in detail the definition of the claim rights, of their legal characters, of the sources and the history of these rights. At the same time, this study proposes a comparative analysis between the claim rights and the real rights.
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The Treaty of 9 December 1919 concerning minority protection was eventually signed by Romania only after fierce opposition grounded on the argument that the Treaty provisions contravene the principle of equal state sovereignty. The present paper is focused on examining the circumstances of the drafting of the 1919 Minority Treaty, on expounding its normative content and on depicting the situation of national minorities in interwar Romania. Finally, a general assessment of interwar Romania’s attitude towards minorities is undertaken.
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Based on the “monistic” nature of the current Romanian Civil Code (Law no. 287/2009, republished, entered into force on October 1, 2011) this study concludes that currently one can further discuss the existence of a “commercial law” in Romania, but only if it is no longer designed as an autonomous branch of the private law (in relation to civil law), but only as a component of the professionals’ law which, in turn, is a division (an integral part) of the Romanian civil law. -
The article examines certain problems that have occurred in practice in relation to the institution of retrial in case of extradition for persons convicted by default, namely the possibility to order, after the admission in principle, the entire or partial suspension of the decision whose retrial is requested, the moment as of which the pronouncement of a decision regarding the admission of such retrial produces legal effects, both as regards the annulment of the former conviction decision, and regarding the annulment of the punishment execution warrant, with direct implications on the release of the person in question, as well as the impact of the legal provisions regarding the intervention of the special prescription of criminal liability, upon the retrial of such a case. -
Where other civil parties call for broadening the effect of declared appeal on the criminal side of the case and on other civil parties, and as far as conditions applying the extensive effect of the appeal are fulfilled, the judicial review court is bound to give effect to the provisions of Art. 373 in the C. Cr. Pr., obviously complying with the principle of non reformatio in pejus. The author argues that a contrary approach would be vulnerable and devoid of legal grounds, intended to set off the extensive effect of appeal from its purposes, which basically leads to the functional requirement of a court of appeal, consisting in examination of the case by extension, to be circumscribed to appeal statements. Thus, argues the author, it would add unacceptably to the law by way of interpretation, contrary to the principle of ubi lex non distinguit nec nos distinguere debemus. -
Formal validity of an arbitration agreement is closely linked to the consent of the parties to arbitration. The requirement of arbitration agreement in written form is intended to ensure that the parties actually agreed on resolving the dispute through arbitration. Therefore, matters related to the performance of formal requirements of arbitration agreement and the necessary approval for arbitration, expressed under the arbitration agreement, are often interrelated and jointly approached. In accordance with the Convention of New-York (1958), the arbitration agreement enforcement, and of any other decision, requires an arbitration agreement concluded in writing. The formal requirements do not necessarily promote legal certainty, frequently being sources of circumstantial disputes. For these reasons, the requirement of arbitration agreement in written form, in most national laws and under the Convention in New York, was more liberally construed. In any case, the requirements of the arbitration agreement to be concluded in written form should be construed more dynamically, in the light of modern means of communication.
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Formalism is often a topic of discussion approached by reference to the form of the juridical act, more precisely to the consent externalized and recorded in a solemn act. This act is frequently outlined in the form of a notarial act, composed of two parts: the externalization of the manifestation of will of the parties and the findings of the notary public (recorded in the conclusion of authentication). The formalities presuppose any legal procedure which gives rise to a certain form and that adds safety, effectiveness and opposability to the manifestation of will. The notarial succession procedure is characterized by three procedural stages and ends with a conclusion of the notary public: the first part of this decision records the persons participating in the succession debate and the statements of those present, and the second part contains the findings of the notary public with regard to the statements of heirs in the first part of the conclusion. This conclusion issued within the succession procedure has the probative force of an authentic document, on the basis of which the certificate of heir is issued. In this study we intend to make a brief presentation of the procedural formalism, of the formalities prior to and subsequent to the conclusion of the civil juridical act. The notarial deed is the result of a concurrence between the manifestation of will of the party (or parties) and the obligations of the notary public which have a single result: the elaboration of a juridical act in accordance with the legal norms and good morals. The analysis is relevant to allow a comparative look between the formalities necessary for the elaboration of a notarial act and the formalities of the notarial succession procedure, which is completed by the certificate of heir, an act of a special legal nature.
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The penal clause gives the advantage of leaving to the parties, and not to the law court, to fix the amount representing compensation for the damage incurred, this way the parties being informed, from the time of conclusion of contract, on what and how much the costs would be if they fail to fulfil the obligations assumed, being, from this point of view, a mechanism not only of defense against the consequences of a damaging non-performance, but also of constraint, both legal and moral, not allowing the parties to hope that, maybe, they will not pay or will pay much less for „breaking” the contract. This study examines the functions of the penal clause, namely the function of guarantee of performance of obligations, the function of mobilization of the debtor to perform its obligations, the sanctioning function and the compensatory function. At the same time, the study analyzes the consensual, incidental, sanctioning and reparative nature of the penal clause, as well as the legal nature of this type of clause. -
According to art. 32 of the Land Property Law no. 18/1991 (republished on January 5, 1998) in the case of „establishing” the right of ownership as provided in this law, the land thus attributed to individuals „shall not be alienated by documents between the living for 10 years, starting from the beginning of the year following the one during which the property was registered, under the penalty of absolute nullity of the alienation document”, the city hall, the prefect’s office, the prosecutor’s office or any other interested person being entitled to file a claim for the ascertainment of nullity. The author discusses the general cases resulting from this text of law, and in principal whether the 10-years term lapses (is counted) from the „registration” of the property in agricultural registries or from its „transcription”, or „registration” of an alienated property in transcription registries, namely its „registration” in the Land Book. -
Offences against police officers or gendarmes (in Romanian, ultraj) are regulated under Article 257 (4) of the Criminal Code, which provides that such offences shall be harsher punished, by increasing the special limits of the penalty by half. In order to apply the above-mentioned dispositions in a fair manner, the Panel for Clarification of Criminal Legal Aspects of the High Court of Cassation and Justice was requested to render a preliminary judgment by which to clarify if „the concept of police officer provided by Article 257 (4) of the Criminal Code shall be construed restrictively as referring only to police officers whose activity and status are regulated under Law No 218/2002 regarding the organisation and functioning of Romanian Police and under Law No 360/2002 regarding the Police Officer Status or more widely, as also including local police officers whose activity and status are regulated under Law No 155/2010 on Local Police and Law No 188/1999 on the Status of Civil Servants”. This article proposes an analysis of the relevant jurisprudence and provides arguments to support that the aggravated version of the crime regulated under Article 257 (4) of the Criminal Code shall be applied when the offence is committed against a local police officer.
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In this paper the author discusses whether a declaration of enforceability of the mortgage agreement is made by the court by way of absolving procedure (non-contentious) or, alternatively, via litigation. Based on fully reasoned arguments, it is concluded that, in this case, we face a contentious proceeding and not an absolving (non-contentious) one.
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In this study, the author, starting from the provision written down in Article 60 (1) c) of the Labour Code, according to which the dismissal of the pregnant employee is forbidden, as far as the employer was notified of this fact prior to the issuing of the dismissal decision, considers that the interpretation of this legal text should be performed extensively, in correlation with the provisions of Directive 92/85/EEC and, as such, the interdiction in question is also incidental, for example, in cases of dismissal of the employee in the trial period, of hiring the employee under a fixed-term contract or even if she did not notify the employer about her pregnancy condition prior to dismissal, if the failure to notify is not the consequence of bad faith of the person concerned and others. -
The modality of enforcement through garnishment involves the existence of a legal relationship, in which the pursued debtor has the quality of creditor, and the garnishee has the quality of debtor, a legal relationship used by the pursuing creditor in order to realize the claim from the writ of execution. The garnishment knows two phases, the one of establishment and the one of validation, the second one intervening only if the garnishee fails to fulfil its obligations as a result of communicating the address for establishment of garnishment. The application for validation of the garnishment is a veritable application for summons, its finality being to obtain a writ of execution by the executing creditor against the garnishee. The study examines the defences which the garnishee can invoke in the court of validation, having regard to the legislative solution provided by the current Civil Procedure Code, according to which a garnishee is forbidden to file a contestation to the enforcement against the acts establishing the garnishment, the latter being able to use his defences only before the court of validation [Article 787 (5) of the Civil Procedure Code]. Therefore, the processual means of invoking the defences before the court of validation are analyzed, being questioned the admissibility of the garnishee’s filing of a counter claim aiming at the cancellation of the juridical act from which the relationship between him and the debtor arose. The defences of the garnishee are analyzed starting with the distinction between defences on the merits and the processual and procedural ones, in relation to the possibility conferred to the third party to invoke against the creditor all the pleas and defences that he may oppose to the debtor, to the extent that they are prior to the establishment of garnishment [Article 790 (3) of the Civil Procedure Code].
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In the absence of technical basis, the two criticized normative acts, through the refusal of the legislature to consider the reactions of all actors involved and relevant institutions, the legislature has transformed the principles of law and rules of law into abstract and worthless rules that can be violated at any time. The intervention of the Constitutional Court through its two decisions (Decision No 623/2016 and Decision No 62/2017) restored legal order, which was seriously violated by these acts. -
Mediation is governed by Law No 192/2006. In criminal matters, mediation is a restorative practice designed to solve the conflict between the parties involved. For a limited number of offences a criminal mediation agreement has the effect of preventing the initiation of criminal prosecution or ending criminal proceedings. This does not mean that parties may come to an agreement on the criminal aspects of the criminal proceedings as the legislator may seem to let us to believe. The only aspect on which an agreement may be reached concerns withdrawal of a prior complaint or reconciliation of parties in case of certain offences; these are impediments distinctively regulated in the mediation agreement. As a matter of fact, the consensus between parties in criminal proceedings, contained in the mediation agreement, exceeds the limits imposed by what is usually considered as the criminal aspect and the civil aspect of those proceedings. Through their will, parties may limit themselves to an agreement only on civil claims within criminal proceedings. -
The study deals with the directions of the very probable, and at the same time, the possible review of the Constitutional Court. The starting point in this analysis is to identify the Romanian specific in the control of constitutionality of the period before and after the Revolution of December 1989, compared to models offered by other member countries of the European Union. The review of criticisms that have been made ”to the Constitutional Court and the solution chosen by the Constituent Assembly of 1991 will lead in the final part of the study to the drafting of the possible solutions to be considered by the future constitutional review to make the constitutional justice in Romania more legitimate and more effective. -
This paper approaches the theme of disuse as a modality of lapse of the subdivisions of the property right. If the property right, given its perpetuity, does not lapse by disuse, its subdivisions, which are mostly temporary, shall lapse by the failure to exercise the right. The sanction is expressly regulated by the present Civil Code in matters of usufruct and servitude and it is applicable, for identity of reason, to use and habitation. The study also examines the extent of interference of the disuse with the acquiring of the subdivided right by usucaption, as well as the consequences that it might have the legal nature of the limitation period acknowledged to the disuse period. -
The institution of course of justice interruption was first introduced in the criminal procedure of Romania in the Charles II Code of Criminal Procedure (1936), being kept in the current Code of Criminal Procedure [Art. 29 point 5 item b)] and also in the new Code of Criminal Procedure adopted by Law No. 135/2010 [Art. 40 paragraph (4)]. The author shows that the Romanian legislator failed to clarify this phrase, leaving the identification of the cases of interrupting the course of justice to the legal literature, but especially to the case law. The case law of the High Court of Cassation and Justice may conclude that the “interrupting the course of justice” phrase requires the occurrence of a criminal case pending before a court of law which has no possibility of achieving the ultimate goal of the trial due to inapplicability of any of the procedural provisions relating to jurisdiction, so that the competent court to order a legal solution cannot be determined.
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The cases that justify a home search are still the subject of important controversies both in doctrine and especially in practice. Also, the delimitation between the situation in which the criminal investigation agents enter a person’s home in order to carry out a home search and the situations in which the police agents are obliged to enter a home to fulfil their duties is of ten extremely sensitive. It is precisely these controversies that often lead state agents to be reluctant to enter a private space in order to avoid being accused of committing a crime. We hope that this study will prove to be a useful tool in identifying those hypotheses in which it is really necessary to resort to a home search as well as the criteria for delimiting the search and other institutions of criminal procedural law.
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In this study the author carries out a summary of the anti-competitive practices, of the applicable laws at the national and European level, of the investigation and control procedures. Thus, the anti-competitive practices, the different views of the American law system and the European law system are examined regarding these practices and their impact on the national and world economy, the actions taken by the supervision and control authorities for their incrimination, the applicable sanctions. -
Within this study, the author has analyzed, in the light of the new Fiscal Procedure Code and also of the current one, the forms of the sanction of the fiscal obligation and the mechanism of their operation depending on the category of creditors that may be, on the one hand, the fiscal bodies, and, on the other hand, the taxpayers that are entitled to the refund or the reimbursement of some amounts from the public budget. Similarly, the author has made the necessary distinctions between the types of sanctions depending on whether the fiscal claims pertain to the central budget or to the local budget. Finally, the author has analyzed the modalities of granting the delay interests for the failure to refund the amounts from the budget due to the taxpayers depending on the cause which has generated these fiscal claims, respectively the fault of the fiscal bodies or of the taxpayers themselves.
