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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. -
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.
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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.
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In this study, by analyzing the legislation in force concerning the remuneration of the budgetary staff paid from public funds, including the special legislation referring to the remuneration of the staff from public education, the author reaches the conclusion that, until the adoption of some new legal provisions (regulations) on this matter, the auxiliary teaching staff from (university and pre-university) public education, which, until 31 December 2009, legally benefited by a wage additional payment for dangerous or harmful conditions, is entitled to continue to receive this additional payment, if the activity is further carried on under the same conditions (dangerous/harmful).
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Pursuant to Article 65 (1) of the (Romanian) Labour Code, the dismissal may occur for reasons not related to the employee in case the workplace held by the employee has been dissolved, for one or more reasons not related to the employee, and paragraph (2) of the text stipulates that the dissolution of the workplace must be effective and must have a real and serious cause. In this study, the author exhaustively examines the diverging opinions (solutions) in the doctrine and the case-law from Romania concerning the meaning and the scope of Article 65 (2) of the Labour Code and, then, firmly considers that, in the event of litigations, the law courts are obliged to examine not only the formallegal aspects of the measure of dismissal in the given situation, but also the opportunity of such measure, therefore, in other terms, the reality and the seriousness of dismissal (by the employer) for the reason of dissolution of the workplace held by the employee. -
Questioned by an alleged absence of their own method and investigation field, legal science and research are fully legitimised in reality. Legal doctrine research deals with formal sources of law, and results in deduction and explanation of legal rules. Legal scientific research deals with legal rules in force from a formal point of view and refers to the legitimation (delegitimation) of legal rules of substantial law; its method is the deduction of general principles of law as a specific normative subsystem within the social system and the relation of the legal rules to these principles.
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This study analyzes the new structure of the judgment based on the guilty plea, describes the conditions of application of this simplified procedure in comparison with the previous regulation, the rules of conduct of the special judicial investigation, the solutions which can be issued by courts in order to solve the criminal action, all these by emphasizing the advantages or shortcomings of the new institution.
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The radical reformation of the criminal proceedings meant also the establishment of new legal institutions. One of them is the preliminary chamber, inspired by the Anglo-Saxon law systems, and by the continental law system. Conceived as a distinct phase of criminal proceedings, the preliminary verification raises real problems of constitutionality, being unable to fit into the mechanism of the judicial bodies stated in the Fundamental Law. In so far as it takes over functions of the judges and it excludes from debates the main subjects of criminal proceedings, it is also contrary to the requirements of the ECHR on the principles of equality of arms and equity.
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According to Article 247 of the Law No 187/2012 for the implementation of the Law No 286/2009, the Criminal Code entered into force on 1 February 2014. The new Criminal Code provides four articles for the regulation of the application of the criminal law in time: Article 3 refers to the principle of the activity of the criminal law, Article 4 regulates the retroactivity of the criminal law of decriminalization, Article 5 is devoted to the application of the most favourable criminal law before the final judgment of the case, Article 6 concerns the application of the most favourable criminal law after the final judgment of the case, and Article 7 is reserved to the application in time of the temporary criminal law. Throughout this study the author presents and explains the new criminal rules regulating the application in time of criminal law.
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This article makes an analysis of the institution of putative marriage regulated by the provisions of Article 304 of the Civil Code which establishes an important derogation from the principle quod nullum est, nullum producit effectum. Therefore, there are raised for discussion the conditions of existence of the putative marriage and there are presented the effects of its nullity in the relationships between the former spouses, making distinction between the situation where both spouses acted in good faith upon the conclusion of the marriage and the situation in which only one of them acted in good faith, as well as in the relationships between parents and their children. The final part is devoted to the conclusions drawn from this study.
