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The new Civil Code achieves in art. 1730-1740 a general-rule regulation of both legal and conventional preemption right, regulation applicable wherever the law or the contract do not stipulate otherwise. The conventional preemption right is recognized and regulated under the name of preemption right established by contract; it is nothing but a preference pact in the matter of the sales Contract. Considering that, regardless of the legal or conventional nature of the preemption right, is not normal to have two different systems that penalize violations in the beneficiary’s purchasing priority, the mechanism operating in case of preemption was governed unitary, the freedom of contract left to preemption’s promisor and this freedom overcome consequences being outlined. Whilst trying to settle the doctrinal controversy on the legal characteristics of the right of preemption, the new Civil Code provided for in Art. 1731 that the sale of the property on which there is a legal or conventional preemption right can be concluded with a third party only provided that there is a condition precedent of the preemptor non-exercising the right of preemption, but without specifying explicitly whether such a condition should be considered implicit where it has not been stipulated in the sales contract with the third party. Removing the jurisprudential shortcomings of the substitution mechanism related to the beneficiary instead of the third party purchaser, who is incompatible with the dissolution contract signed between the latter and the promisor, Art. 1732 and 1723 of the new Civil Code, without expressly referring to the sale under condition precedent, stipulate that, through the exercise of preemption, the sales contract is deemed concluded between the preemptor and the seller in the conditions contained in the contract with the third party, and this latter contracts shall be canceled retroactively. In terms of obligations, the creditor is entitled to proper execution and should the creditor have such right, he/she should be granted the opportunity to find effective means to protect it. Reading of Art. 1731 of the new Civil Code, in the sense of making the condition precedent of the preemptor’s non-exercise of the right of preemption in the any sale between the promisor and the third party to be implied, corresponds to the doctrine and jurisprudence attempts to find appropriate means to ensure the observance of the preemptor’s ignored rights, while considering the above principle. -
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The rule included in art. 41 paragraph 3 of the Criminal Code adopted in 1968 defines the concept of complex offence in a way which does not exclude any critique. Among the numerous critiques submitted for this definition, the legislator of the new Criminal Code adopted by Law no. 286/2009 assumed a single critique regarding the inaccuracy of using the phrase „aggravating circumstance” that it replaced by the phrase „aggravating incidental element”. However, in the author’s opinion, the most important critique of the definition consists in the fact that concepts such as “action or inaction” are used in order to describe the absorbed offence, referring only to the objective side. -
The value competence in the criminal matter represents a form of material competence, whose non-observance is sanctioned by absolute nullity. In this article the author describes theoretical and practical aspects of competence depending on the value criterion and carries out a comparative examination between the current and the future criminal and criminal proceedings regulation of the phrase of „very serious consequences”. Likewise, the author identifies possible solutions to unify the judicial practice, considering that the requirement of the predictable nature of law and the principle of judicial equal treatment require the establishment of the competence depending on its value by reference to the time of occurrence of the material damage due to offence and to its real value. -
This paper starts from the finding that there is currently no clear criterion for distinguishing between the offences against bodily integrity or health and attempted murder and, as a result, the practice in this matter is contradictory. As a solution, it proposes to adopt the criterion of causal aptitude of the action, while emphasizing, at the same time, that the adoption of this criterion requires that the psychological theory of guilt be abandoned. -
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The author of this study proposes a theme as original as it is actual: the environmental criminology. This subject – as the author points out – is still at the stage of structuring the object and searching its own path of asserting. Included in the specialization trend at the criminology scientific-academic, strategic and intervention level, it is considered a “special criminology” alongside with the social, demographic, cross-cultural criminology, and other types of criminology whose object of study and research are the relationships between the environmental conditions and antisocial behavior in general, and the criminal offense in particular. Both the approach of schools (e.g., the Chicago School) and currents underpinning the creation of environmental criminology from a diachronic perspective of the subject, and the approach of the differences between the concept of environmental criminology and other related concepts raise reader’s interest. -
The article reviews the organized crime phenomenon, as cross-border and multinational crime. The first section substantiates the concepts, both from a doctrine-related and a legislative perspective. An important part in terms of content and scope is dedicated to the analysis of European policies and strategies, emphasizing the security strategy of the European Union. The last part presents certain solutions for fighting against the cross-border crime phenomenon. -
This study aims to analyze the characters of the claim of a creditor entitled to request the opening of the insolvency procedure, namely the certain, liquid and exigibile character, as well as the conditions for admitting the application for claim in the insolvency procedure. The creditor’s right to request the opening of the insolvency procedure is one of the modalities which the legislator has made available to him in order to materialize his claim right against his debtor. The opening of the insolvency procedure does not have the characteristic of an actual enforcement, because insolvency does not provide the guarantee of the effective satisfaction of the claim right against the debtor. The creditor entitled to request the opening of the insolvency procedure must have against his debtor a clear, liquid and exigible claim for more than 60 days, in a minimum quantum established by the law.
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In terms of Romanian Tax legislation, extinctive prescription rules are contained in both the Code of Fiscal Procedure (Government Ordinance no. 92/ 2003, republished on July 31, 2007) and in the new Civil Code (Law no. 287/ 2009, republished on July 15, 2011) as well as in the new Code of Civil Procedure (Law no. 134/2010, republished on August 3, 2012 and which shall enter into force on February 1, 2013). In relation to this, the author specifically examines how these rules – in fiscal matters - should be correlated and interpreted whilst being distributed in three acts (different codes). -
Collective redundancy is regulated at Community level by Directive 98/59/EC, giving rise to a vast case-law, this study focusing, in this context, on a particular aspect of determining the conditions for the existence of this type of redundancy: the notion of „establishment”. The interest of such an approach is justified in the light of the recent case-law of the Court of Justice of the European Union, which raises the question of the compatibility of the national law with Directive 98/59/EC just as regards the mentioned notion. At the same time, as regards the relation of the national law with the Community law, it appears necessary to determine the notion of employer established by the Romanian law and to correlate it with the notion of establishment, regulated by the European Directive.
