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In negotiated contracts where parties have established clauses by mutual agreement so-called „abusive clauses” may exist. The abusive character of such clauses may be invoked in negotiated contracts on the ground that one party is always stronger than the other. The penal clause in negotiated contracts may be considered abusive if penalties are excessively high in relation to the extent of the damage or with regard to the value of the delivery. This study examines abusive clauses and abusive penal clauses in exclusive distribution contracts, in leasing contracts and in administrative contracts. -
This study is meant to clarify the content and the meaning of legal norms devoted to the protection of databases. The author presents and subjects to analysis the points of view of prestigious authors and his own relative to the legal nature of the rights arising from the creation of databases. This paper examines the elements of the legal relationship arising from the database creation: the subjects, the object and the content of the relationship, emphasizing the particularities and the specificity that shape its identity. However, the topic discussed is connected to the European case-law in the matter, precisely to highlight the manner in which it is raised the question of the relationship between the protection of databases in the area of copyright and through the sui-generis right of the creators of these intellectual creations. The author analyses databases in order to underline the fact that they are man-made creations, with an important role in the economic and social life and are more and more frequently exposed to unfair competition. Moreover, the article also offers starting points for specialists called to study thoroughly less known aspects of the legal protection of databases.
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The author deals with the jurisdiction for carrying out forced pursuit acts from the perspective of the provisions of Article 651 (2) and of Article 818 (1) of the new Civil Procedure Code and analyzes the problems of selling a building in an auction „at the highest offered price”. The analysis is carried out in the light of the condition of price seriousness required in matters of sale, where the serious price is the one which constitutes a sufficient cause of the obligation undertaken by the seller to transmit the property right on the asset that is the object of sale and it is transposed into the existence of a ratio between the quantum of the price established by the parties and the real value of the sold asset, without however claiming an equivalence between the price and the value of the asset.
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While examining the effects of the information procedure on the advantages of mediation in relation to the running of the prescription or limitation periods and corroborating the provisions of Law No 192/2006 referring to mediation with the provisions of the Romanian Civil Code in matters of prescription or limitation periods, this study reaches the conclusion that the procedure on the advantages of mediation prevents the running of the substantial prescription period and limitation period established by the legal provisions (which protect a private right) or by the convention of the parties when these have not began to run, and, respectively, it suspends the course of the prescription/limitation when these have began to run, for a period of 15 calendar days from the date when the prescription/limitation began.
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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.
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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.
