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In this study, the author makes a presentation of the Romanian legislation and case-law, of the European case-law (the European Court of Human Rights), of some regulations of the European legislation, as well as of some provisions of the Constitution of France and of Belgium, all concerning the protection of human dignity and reputation of the individual. -
Within this article, the author makes an analysis of the main provisions of the Hague Convention of 1985 on the law applicable to trusts and on their recognition. In the context of introducing in the Romanian civil law the legal operation of fiducia, achieved by the provisions of Articles 773–791 of the Civil Code of 2009, Romania’s accession to the Hague Convention would be a natural step that the Romanian legislator should take in the near future. Although some of the provisions of the Hague Convention have been taken, tale quale, within the provisions of private international law relating to the fiducia, the accession to the Hague Convention and its introduction into the Romanian internal law, would lead to expanding the scope of practical application of the legal instrument of the fiducia itself.
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In this study, the authors have chosen to present and to analyze the criminal law institution of the conditional release because, as practitioners, more than once, they came to discover a different application thereof, a different approach of the criteria laid down by this institution and even a difference of opinions within the assessment of the opportuneness of ordering this measure by the judges of the same court, this generating an uneven practice with regard to the application of the same rule of criminal law.
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The offences regulated by the Law No 31/1990 on companies form a domain relatively less explored by the criminal law specialists and quasi-unexplored by the civil law specialists. In this study, the authors deal with those offences grouped within Article 272 of the above-mentioned law. These offences have a few specific elements. First, assuming there is a legal rule, the active subject is qualified, that is a person holding a certain quality of company member. Secondly, for two of the offences, the assumption of criminal rule is another rule, of the company law, to which the criminal law rule refers. By the fact that there is a situation such as the latter, but also because the assumptions of the other offences provided in Article 272 are part of the company law, first it is the duty of the civil law specialist to decode the meaning of the material rule, because a rigid application of the purely criminal vision in a field of the private law can lead to wrong conclusions, with serious consequences on the subjects of the offences. But, in order to cover the entire interpretative area, the same consideration must be given, according to the authors, to the criminal matters as well, where the role of the criminal law specialist steps in, so that the reader – either a civil law specialist or a criminal law specialist – forms a proper idea about a far too little investigated field.
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The article presents the special cases where the defendant benefits from the mitigating effects of the abbreviated procedure, appreciating that they must also be extended in case the application for judgment has been rejected according to the abbreviated procedure, because the defendant did not recognize all the material acts in the indictment or all the deeds described therein, but after performing the judicial investigation the court retains the factual situation recognized by the defendant.
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Dispozițiile art. 44 alin. (3) C.pr.pen. reglementează un caz de prorogare legală a competenței, în sensul că infracțiunea de favorizare a făptuitorului este de competența instanței care judecă infracțiunea la care aceasta se referă, competența materială a infracțiunii corelative fiind câștigată mai înainte și independent de reunirea cauzelor. În acest context, dacă judecătorul de cameră preliminară care funcționează la judecătorie, fiind sesizat prin rechizitoriu cu judecarea unei infracțiuni de favorizare a făptuitorului – făptuitorul favorizat fiind judecat de către tribunal – verifică și menține măsura preventivă luată în faza urmăririi penale, violează dispozițiile relative la competența materială a instanțelor de judecată prevăzute sub sancțiunea nulității absolute, potrivit art. 281 alin. (1) lit. b) C.pr.pen. (cu notă critică).
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În cazul în care prin acțiunea introductivă promitentul-cumpărător a solicitat numai restituirea avansului achitat în temeiul antecontractului de vânzare-cumpărare și dobânda legală aferentă, nesolicitând și constatarea intervenirii pactului comisoriu expres stipulat de părțile contractante cu consecința repunerii părților în situația anterioară sau rezoluțiunea judiciară a convenției, în temeiul art. 1020–1021 C.civ., este lipsit de fundament juridic demersul său, astfel cum a fost formulat, deoarece numai în caz de desființare a convenției se poate dispune obligarea părții în privința căreia angajamentul nu s-a executat la daune-interese. (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 3261 din 24 octombrie 2014)
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This approach is meant to carry out a brief examination of the control which the judge is required to perform on the acts of disposition of the parties in the civil trial. It refers to the main sides of availability and, especially, to the presentness and imperativeness of such a control. In this context, the author notes that the new Civil Procedure Code has not abdicated from the active role of the judge, this being far from the peak of its „glory”. Likewise, the author analyzes the procedural ways of invalidation of the acts of disposition, first noting the incidental legislative regulation both with regard to the transaction and to the judgment that confirms the agreement of the party. It is noted that, from a normative point of view, the party does not have an option right between the exercise of the action for annulment and the means of recourse against the judicial transaction. At the end of the study, the author analyzes some aspects of the recourse which can be exercised against the acts of divestment and acquiescence to the claims of the applicant. -
In principle, the confession is admissible as means of evidence in all the matters for which the civil processual law represents the common law of the procedure and for which there is no separate procedure. Exceptionally, the confession is not admissible: when it is expressly prohibited by law; whether, by admitting it, the imperative provisions of the law would be eluded; if the law requires that certain facts be proved only by certain means of evidence; if, by admitting it, one could reach to total or partial loss of a right which may not be waived or may not be subject to a transaction. The judicial confession shall be given by means of cross-examination, as reflected by Articles 351–358 of the Civil Procedure Code. Obviously, it is a question of provoked judicial confession, whereas the spontaneous judicial confession does not require any prior preparation and, as such, it does not require an express regulation. Instead, the written extrajudicial confession is subject to the regime of proof of evidence through written documents, and the extrajudicial verbal confession may be attested by witnesses, if the law allows the testimonial evidence. The legislator of the new Civil Procedure Code expressly establishes the principle of indivisibility of the judicial confession and, at the same time, he provides an exception from this principle, namely the situation in which the judicial confession contains separate facts not connected between them. In this study there are elaborated the ideas presented above
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This paper aims to analyze the difficulties which the Romanian judge faces, in the attempt to ensure the exigencies imposed by Article 6 of the European Convention on Human Rights in matters of reasonable time. In this regard, the paper is structured in three parts: the first part briefly presents the Court’s standard as regards the reasonable time; the second part analyzes the compatibility of an institution recently introduced in the Civil Procedure Code – the contestation concerning the delay of the trial (Articles 522–526 of the Civil Procedure Code) – to the notion of effective remedy, within the meaning of Article 6 and Article 13 of the Convention; the last part emphasizes, based on some jurisprudential examples, the risks which the national judge must manage very carefully when he tries to ensure the reasonable time: the risk of acting ultra vires and the risk of creating a non-unitary case-law, thus generating the premises of some new violations of Article 6 of the Convention.
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The study is devoted to the analysis of the provisions of Article 304 of the Civil Code referring to the „putative marriage”, a legal institution meant to protect the good faith upon the conclusion of the null or annulled marriage. Unlike other authors, but in agreement with the provisions of Article 304 (1) of the Civil Code, we have also analyzed, together with the condition that at least one of the future spouses act in good faith, the requirement of existence, on the date of conclusion of marriage, of a factual situation which causes the nullity or the annulment thereof. Similarly, because the analysis of the effects of the putative marriage does not present difficulties of interpretation in case both future spouses have acted in good faith upon the conclusion of the marriage, we have focused on the situation in which, on the contrary, one of them acted in good faith and the other acted in bad faith. Finally, we have tried to elucidate the reason which determined the legislator to subject the patrimonial relations between former spouses, including in case that only one of them acted in good faith, to the provisions concerning the divorce and we have grounded a proposal de lege ferenda likely to eliminate the „legal compromise” generated by the current normative solution.
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This study is meant to analyse the provisions of Article 333 of the Civil Code regarding the preciput clause. Specifically, there are discussed issues such as: the relevant provisions; the definition of the analyzed institution; the subjects, the object and the legal nature of the preciput clause; the legal characters of the preciput; the effects of the preciput clause; inefficiency and enforcement of the preciput.
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This study deals with the issues related to the regulation included in Article 262 of the new Criminal Code of Romania. The author notes that, as compared to the regulation prior to the entry into force of the new Criminal Code, the taking over in this Code of the norm of incrimination previously included in Article 70 of the Government Emergency Ordinance No 105/2001 on the state border of Romania has been preferred as a reflection of the importance given to the social value of the regime of the state border. At the same time, it is pointed out that the norm in the Code in force is subject to completion by provisions included in other normative acts, inferior to the law, as in the Government Emergency Ordinance No 194/2002 on the regime of foreigners in Romania.
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This study intends to make a critical analysis of the solution enacted by Article 52 (2) of the Labour Code under three aspects: the holder of the obligation to pay damages, the content, their extent and the period for which they are owed. The solution prescribed by Article 52 (2) of the Labour Code is in conflict with other regulations of the same Code. In relation to the second sentence of Article 52 (1) b) of the Labour Code, the author considers that the holder of the payment obligation must be the Romanian State, for the reasons for which it is also liable in the situations regulated by Article 50 (1) g), Article 52 c1) and Article 61 b) of the Labour Code. The author’s opinion is that the damages are unreasonably limited. Provided that, de lege ferenda, reference would be made to the provisions of Article 540 of the Criminal Procedure Code, one can notice that this text does not cover the same limits and it would allow the compensation of the employee in relation to the real damages produced, both material and moral. As a protective measure, for the duration of the suspension motivated by the indictment for acts incompatible with the position held, the employee should have, ope legis, the quality of insured within the health social insurance system. The author also believes that it should be expressly regulated a period in which the employee must notify the employer both on the cause which can determine the suspension and the reason which requires its cessation.
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The Government Emergency Ordinance No 111/2010 has established in Romania the grant of the leave for raising children (also called parental leave), with the payment of the related allowance. This normative act represents the transposition, in the Romanian legislation, of Directive 2010/18/EU of the Council of 8 March 2010, without, however, also properly supplementing the (Romanian) Labour Code (the Law No 53/2003). Given this situation and also taking into account the relevant creative case-law of the Court of Justice of the European Union, the author makes an analysis of the regulations and of the practice in the field and, retaining some discrepancies, it comes to the conclusion that the provisions of the Emergency Government Ordinance No 111/2010 and of the Labour Code must be interpreted and applied in the light and in accordance with EU legislation and of the case-law of the Court in Luxembourg, the supplementation of the Labour Code being also required, so that the right of the employee to fully benefit by the rest leave, after taking the leave for raising children, be expressly provided in the Romanian legislation, a series of discussions and controversies being thus avoided.
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A special normative act [the Government Emergency Ordinance No 109/2011 on the corporate governance of public undertakings (the autonomous regies established by the State or by an administrative-territorial unit, the national firms and companies, the companies in which the State or an administrative-territorial unit is a sole or majority shareholder etc.)] shall also regulate, as an exception, the situation where such a public undertaking is organized as a joint-stock companies with a sole shareholder. Whereas the legal regulation on such companies is incomplete, the author examines, in this study, a series of legal problems generated by the existence and functioning of such companies.
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In this study the author makes an analysis of the institution of waiver of criminal prosecution, including from the perspective of other systems of law, of the conditions provided by law for ordering the waiver of criminal prosecution, as well as of other optional criteria of opportunity, which must be considered when ordering this solution provided by law. Likewise, he formulates some critical remarks referring to the practice of some units of the prosecutor’s office, the author also making some de lege ferenda proposals on some problematic issues.
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The regulation (Article 225) of the new Criminal Procedure Code is not too different from the one (Article 1491 paragraphs 3–8 and Article 150) of the previous Criminal Procedure Code (1968). Instead, the new criminal processual law does no longer provide for the possibility to settle the proposal of preventive detention, in the absence of the defendant, when the defendant is abroad, as it was stipulated in the previous Criminal Procedure Code. The authors analyze the institution of settlement of the proposal of preventive detention, by presenting some critical issues and by proposing some improvements to the new regulation.
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According to Article 172 (12) of the Criminal Procedure Code „After the finalisation of the fact-finding report, whenever the judicial body considers necessary the opinion of an expert or whenever the conclusions of the fact-finding report are contested, an expertise shall be ordered to be made.” This legal text is not correlated with the rest of the provisions of the Criminal Procedure Code in force, nor with the other provisions of the previous codes, therefore, in the author’s opinion, this fact is likely to give rise to controversies. In a different line of ideas, the author argues that the legislator imposes as processual remedy that upon the finalization of the fact-finding report, in case its conclusions are only contested, to order an expertise to be conducted. This hypothesis is even more questionable as there is the possibility that the judicial body appreciates that the opinion of such an expert is not necessary. Thus, the legislator acts instead of the place of the judicial body in deciding on the admissibility of such means of evidence. Starting from such an inadvertence, in a given case, although the judicial body has concluded on the lack of utility and conclusiveness of an expertise, taking into account that one of the subjects to the trial, a defendant in this case, has contested the conclusions of some previous technical-scientific reports and even of an initial expertise report, both the prosecutor, during the phase of criminal prosecution, and the judge, during the phase of trial, had to admit, according to the text of the law, the contestation or the application of that subject to the trial respectively and thus to order an expertise to be conducted. The author believes that the mentioned text provision is also contrary to the contents of several normative acts that provide the independence of the judge and of the prosecutor in the activity of criminal investigation and in the phase of trial, as well as their exclusive competence to decide on the processual acts and measures, as the case is undergoing the phase of criminal prosecution, of preliminary chamber or of trial. Moreover, in support of the opinions which the author has expressed in this article, he also brings arguments of comparative law, showing that the analysis made has not identified legislations or points of view from other countries, convergent with the text of Article 172 (12) of the Criminal Procedure Code. In conclusion, for the reasons shown within this article, the author appreciates that it is required a reconsideration and reformulation of the text of Article 172 (12) of the Criminal Procedure Code from the legislator.
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In this study, the author presents a constitutional reform on the Hungarian Constitutional Court, in the sense of extending its substantive jurisdiction, which entered into force at the beginning of the year 2012. Indeed, the mentioned reform preserves the classic system of the constitutional courts, but it receives an additional jurisdiction, i.e.: after a judgment has become final, either party may address to the Constitutional Court if the decision made is contrary to a fundamental right established by the Constitution. This way, concludes the author, the Constitutional Court is elevated at the level of a centre of the state power, an independent branch thereof which, in a certain sense, conducts a control on all branches of the state power.
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Clauza de dezicere inserată într-un antecontract de vânzare-cumpărare, prin care s-a prevăzut posibilitatea de răzgândire a promitentei-vânzătoare din motive subiective, rămâne fără efecte în situația decesului acesteia, neputând fi invocată de moștenitori. Și aceasta întrucât dreptul astfel prevăzut în favoarea promitenteivânzătoare are un caracter strict personal, iar datorită acestei caracteristici acest drept este incesibil, adică netransmisibil moștenitorilor, putând fi exercitat numai de către titular.
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This article presents the provisions of the new Civil Procedure Code whose entry into force has been postponed again, by a recent normative act. These provisions refer to: the investigation of the trial, the preliminary procedure before the appeal and recourse court, the judgments which can not be challenged by recourse and the composition of the panel of judges for pronouncing a preliminary judgment by the Supreme Court. In a criticizable manner, in the author’s opinion, the legislator has prorogued the entry into force of these provisions, initially for 1 January 2016, and then for 1 January 2017. The conclusion of the study is that the legislator should have allocated material and human resources necessary in order to create all the conditions for a full entry into force of the new Civil Procedure Code from the beginning (15 February 2013), not a partial one, being required successively (for the texts not entered into force ab initio) two postponements (1 January 2016 and then 1 January 2017). -
This study is devoted to some critical appreciations in connection with the use, in a relatively recent specialty paper, of some „practicist expressions” in order to designate the territorial jurisdiction of the court of first instance to settle the divorce applications („court of first instance having jurisdiction over the place of residence of the defendant”, „court of first instance having jurisdiction over the place of residence of the applicant” etc.). Likewise, our analysis also concerns the conclusions drawn within the same paper in connection with the concurrence between the territorial jurisdiction theses regulated by Article 3 (1) a) and those provided by letter b) of the Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
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The new Fiscal Procedure Code, approved by the Law No 207/2015, in force starting from 1 January 2016, through the transposition of some European acts into our domestic law, has brought significant mutations in matters of administrative and fiscal disputes as well. In the ambience of the new normative framework regulated by the Law No 207/2015 on the Fiscal Procedure Code, this study aims at analyzing a few aspects less regulated by the new normative framework and which could create controversies both in the application of the new normative framework by the public tax authorities and by the administrative disputes courts entrusted with the settlement of some litigations in matters of administrative and fiscal disputes. Starting from this desideratum, the study analyzes the categories of judgments pronounced by the administrative courts in matters of fiscal and administrative disputes, as well as the procedure for their enforcement, in relation to each category of judgments pronounced in this matter. There are also analyzed within this study the problems of suspension of the enforcement and of the contestation against enforcement in matters of administrative and fiscal disputes.
