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This article has as object of study the issue of the marriages of convenience concluded for the sole purpose of ensuring the right of entry and of stay of a foreign citizen on the territory of Romania. In elaborating the study plan we have considered: a first introductory part which presents the normative basis relative to the legal regime of the foreigners; a section devoted to some decisions of the Romanian Constitutional Court which has been entrusted over time with analysing the concordance of the provisions regarding the legal regime of foreigners with our Fundamental Law; a point devoted to the European legislation relevant for the issue under our examination and a practical part which reveals how Romanian courts have settled cases concerning the assessment of the marriages of convenience. -
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. -
In the Romanian civil law and civil processual law there are several particular situations that raise problems in terms of application in time of the civil law and of the civil processual law, especially in case of prescriptions, both to the extinctive prescription and to the acquisitive prescription. It is noted the fact that, in case of prescription of execution, the provisions of processual law are supplemented with the provisions of substantive law, therefore the conflict of laws in time arises not only between the civil procedure rules, but at the same time between the rules of civil material law as well. As regards the acquisitive prescription, the conflict of laws arises, in particular, between the provisions of the Decree-Law No 115/1938 and those of the Civil Code of 1864, and the situation is complicated by the fact that the moment when the prescription period starts to run is different in the two normative acts. The solution proposed by the doctrine to resolve the conflict of laws between the former Civil Code and the current Civil Code can be useful also in case of conflict in time between normative acts, in this case with regard to usucaption, in order to avoid that the applicable law be different from the law that has determined the applicable law. -
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. -
The institution of preventive arrest is regulated by the new Criminal Procedure Code in Article 223 and the following, representing the hardest preventive measure that can be taken against the defendant in the criminal prosecution phase, in the preliminary chamber phase or in the trial phase. As it is normal, the institutions referred to in the Criminal Procedure Code appear to be very strictly and concisely regulated, but even so, there may be problems in the practice of the courts and of the public prosecutor’s offices that function next to them, with regard to the interpretation of the rules. The measure of preventive arrest is the harshest of the preventive measures, because it completely deprives of liberty the defendant accused of committing an offence. In relation to the cases in which the measure of preventive arrest may be ordered and the conditions to be satisfied for taking this measure, the practice is not always unitary. If most of the cases expressly provided in the Criminal Procedure Code in which this measure may be ordered do not pose problems of interpretation, their applicability being strict and commonly understood by practitioners, some cases, also expressly provided, bring to light a series of profound legislative matters that will have to be solved, in the future, by means of the legislator’s action of amendment and supplementation of the provisions in the matter or by means of interpretation of these provisions by the High Court of Cassation and Justice in order to unify the judicial practice. -
The study is devoted to the analysis of the legal provisions on the civil liability for disregarding the copyrights, the rights related to copyrights and the sui-generis rights of the creators of databases. Specifically, there are discussed aspects such as: the basis of the matter, the nature of the infringed rights, the engagement of the civil liability (the nature of the legal actions regulated by Article 139 of the Law No 8/1996, the promotion of these actions, the jurisdiction to settle the litigations, setting of the damages, the provision of information and the provisional measures). The idea of the study starts, especially, from the little consideration given to the subject in the Romanian doctrine in the field of legal protection of the intellectual creation and in the numerous existing normative problems in the matter. -
Infracțiunea prevăzută de art. 337 C.pen. are ca situație premisă solicitarea expresă din partea organelor de poliție rutieră adresată conducătorului auto de a se supune prelevării de mostre biologice, în ambele modalități normative, atât în cazul refuzului, cât și în cazul sustragerii conducătorului unui vehicul de a se supune prelevării de mostre biologice necesare în vederea stabilirii alcoolemiei. -
In this study, the author has chosen to present and to analyze the offence of abandonment of family, provided in Article 378 (1) c) of the Criminal Code, because, with the stabilization of the judicial practice after the entry into force of the Criminal Code, it has been established a new outlook in respect of the approach of the constitutive elements of the offence and a clarification of the controversial aspects with regard to establishing the ill-intention of the offender. -
This article emphasises the special situations of some employees of the public hospitals, of the forensic medicine institutes and of the employees of some quarry mining exploitations, who have reported prejudices to their right to health and safety at work by the conduct of the employers, of the trade unions and even of the public institutions with powers of control and of ensuring the respect for these rights. -
In this article, the authors examine the modality of conducting the procedure of replacement of the measure of preventive detention with the preventive measure of judicial control on bail, respectively if, according to the regulations of the Criminal Procedure Code, at the same time with the admission in principle the judge examines inclusively the grounds of such application or, on the contrary, it requires an initial examination strictly in terms of fulfilment of the formal conditions, finalised with the admission in principle and with fixing the quantum of the bail, and only in the second stage the examination of the application on its merits in terms of its rightfulness. Likewise, there are analyzed the legal remedies against the interlocutory judgment of admission in principle, respectively of the interlocutory judgment whereby the judge rules on the merits of the case. Finally, the authors present the contradictory solutions at the level of different courts of appeal and of the High Court of Cassation and Justice, analyzing inclusively the report drawn up by the supreme court, the Panel for the settlement of some points of law in criminal matters. Likewise, they formulate a series of de lege ferenda proposals, which aim to eliminate the contradictions between the different articles of the Criminal Procedure Code in this matter. -
The authors of this study bring into question issues arising from the adoption of the new codes, the Civil Code and that of Civil Procedure, and analyze practical aspects relating to the laws implementing the two new codes impact on the related acts thereof. Adopting the new codes, in addition to establishing provisions to meet current requirements, has also generated numerous legislative interventions on the related legal acts. To facilitate tracking legal information, republication of these related acts was provided for, operation which, most often created many problems regarding proper preparation of the re-publishable forms of the concerned acts. Furthermore, the authors also present statistics about the number of normative acts needed to be republished under the new codes and the concrete way to fulfill this task, specifying both the acts in respect of which the re-publishable forms have been formally drawn, and those in respect of which this obligation has been fulfilled by republishing thereof in the Official Gazette.
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This study starts from a case settled in the preliminary chamber by a court that has proceeded to the exclusion from the probative material of some illegally obtained evidence, but also of those derived therefrom. In the analyzed situation in the context of the preliminary chamber it was found that there had been a confusion which led to obtaining data on a person’s financial transactions in an unlawful manner, namely by an ordinance that had not been validated by a judge of rights and freedoms, as the provisions of Article 138 (9) of the Criminal Procedure Code would have required.
