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Departing from the constitutional basis underlying the relations between the Constitutional Court of Romania and the European Court of Human Rights, this study examines the judicial dialogue between the two courts and the effects thereof. The conclusion of this study, based on numerous examples from case-law, is that the dialogue between the constitutional judge and the European Judge serves to develop common standards for the protection of fundamental rights, as well as to enriching those existing at national level, with effects in terms of law-making and law-enforcement. -
In the study hereunder, the author undertakes an analysis of Article 16 para. (1) of Law No. 554/2004 on administrative litigation (text entitled “Introducing the civil servant in the case”), statutory provision that reads as follows: “The legal demands under this law may be filed also personally against the person who assisted in the development, issuance or execution of the document or, where appropriate, who is held liable for failure to settle the demand relating to a subjective right or a legitimate interest, should there be claimed payment of compensation for damages or delay. Should the action be granted, the person concerned may be ordered to pay damages, jointly with the defendant public authority”.
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The above entitled study concerns the analysis of the Romanian Civil Code current provisions relating to the “Preciput Clause”; the said provisions are inspired mainly from the corresponding regulations of the 1804 French Civil Code. Specifically, it examined the Preciput Clause in terms of its legal nature, beneficiaries, objectives and execution hereof. Also, existence of improvable aspects in regulating this Romanian legal system unique legal institution has been reported and, consequently, certain de lege ferenda proposals were grounded. -
Extensive confiscation safety measure has a narrow enforcement scope, as it can be ordered only for the crimes expressly provided by law. On the other hand, extended confiscation can cover only property or the equivalent thereof, obtained by the convicted person whilst committing, in a specified time period, other crimes for which the law provides for such safety measures. Prerequisite to be met for the enforcement of extended confiscation is the existence of an obvious disproportion between income earned lawfully by the person convicted and the value of goods obtained through criminal activity for which the law provides for this safety measure.
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The role of the notary public is very important in today’s society. Notary services must be performed in good faith, conscientiously and in compliance with all incidental legal norms. Moreover, the assessment made by the Constitutional Court that notaries public are public officials imposes a more rigorous selection on objective criteria, after some tests that may be organized at national level, also given the invalidation cases of locally organized competitions1. However, the notary public profession requires careful attention on behalf of the national guardianship authority in overseeing their careers, so that sanctions are to be imposed to those less prepared, or having reputation problems or incursions into committing criminal acts, and thus the Romanian notary system to be more reliable and increase its quality.
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The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with Art 325 of the Treaty on the Functioning of the European Union, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union’s institutions, bodies, offices and agencies. For this purpose, Member States shall coordinate their actions and shall organize, together with the Commission, a tight and constant cooperation between competent authorities and shall take measures to counter fraud affecting their own financial interests. Romania, by adopting Law No 78/2000 on preventing, discovering and sanctioning corruption acts, the Law No 161/2003 on regarding certain measures for ensuring transparent exercise of public dignities, positions and business transparency, by prevention and sanctioning corruption, the Law No 61/2011 on the fight against fraud department, Government Decision No 215/2012 on the National Strategy for 2012-2015 and other normative acts, has created the legal framework necessary for the protection of the European Union’s financial interests.
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The author aims to discern the will of the legislator, expressed in the text of the art. 1856 of the new Civil Code, titled marginally “workers’ direct action”. This approach has led to some recent doctrinal views by which the direct action is recognized to subcontractors as well, including those who have the status of legal entity. The author argues that the mentioned legal text has to be interpreted as meaning to the recognition of the direct action only to certain individuals, i.e. to workers and subcontractors-individuals (the latter under certain conditions: working alone or employing workers, working with them to achieve the work / to render the services). In the study, certain practical situations are brought to light, in which the question of determining the holders of direct action is raised, in case of the subcontractor agreements. The author considers as possible, “de lege ferenda”, regulating a direct action both in favour of the subcontractors-individuals using workers and in favour of the subcontractors-legal entities, but only for the price of work/rendering of services which excludes the price of the workers’ activity. -
This study presents the specific elements of the security obligation, having as benchmarks the scope, the legal nature and the fundamentals of the civil repair liability and preventive, anticipatory liability based on the precautionary principle. The stated conclusions try to define this obligation, thus providing a useful approach to the legal action of the creditor regarding the debtor’s liability for infringement of that obligation.
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In this article, the author makes some observations about the documents necessary to carry out the real estate publicity formalities as a result of the division of a company. The non-unitary practice of courts and offices of cadastre and land registration in respect of the documents which require to be authenticated for validity and tabulation purposes lead to a non-unitary notarial practice, as well. Dissenting opinions appearing on the transfer of ownership basis and on the time of this transfer, lead to different views on the legal nature of notarial documents processed, which is reflected finally in the taxation field. This study supports the contractual nature of a division, and the manifestations of the final will are expressed, in principle, by the decisions of the general meetings of the companies involved in the division, by which they approve the terms of the transaction. That is, in the author’s opinion, in case of the transfer of real property right, these decisions require to be authenticated.
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This study aims to develop concepts already outlined in the doctrine, but in the light of the modern law on self-defence and exceeding its limits, containing transitional issues in relation to the new Criminal Code, accompanied by the case law up to date and reasonable own notes, while emphasizing the theoretical and practical controversies encountered. The article is prepared in an analytical style, the author reveals the key aspects regarding certain particularities and difficulties arising from the combination of the letter of the law with its enforcement. In addition to the aforementioned aspects, certain elements related to the comparative law are present, and the provisions of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms concerning self-defence, as well as de lege ferenda proposals.
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This article discusses the material and territorial jurisdiction for the settlement in the matter of land fund disputes. The material jurisdiction is examined in terms of art. 94 item 1. letter j), art. 94 items 3 and 4, Art. 95 item 1 of the Code of Civil Procedure and the special regulations contained in Law no. 18/1991, as republished, and the territorial jurisdiction of the perspective of art. 107 para. (1), art. 117 of the Code of Civil Procedure and the special law. The jurisdiction issue concerns the various actions on the land fund, arising from the enforcement of the Law no. 18/1991, as republished. The regulation of the jurisdiction of the actions settlement in the matter of the land fund, in favor of the same court, is proposed de lege ferenda. -
On the occasion of the modification of the claims regarding the establishment of a seizure, the judge of the cause of action should examine to what extent, from the psychological and legal point of view, the active involvement of the creditor – most often the single litigant who knows the existence of the file – prejudices certain fundamental principles of the civil trial such as the principle of the equality of arms or the principle of contradictoriality. The simple record of the presence of the party, in the absence of the other party, is sufficient to affect, by itself, these cardinal ordinances of the civil trial. The principle of availability cannot justify a proportional reduction in the amount of the bail in relation to the reduction of the sum to the amount to which the establishment of the seizure is required; otherwise, it would create an insurmountable “obstacle” in the path of the debtor which, “exposing” the abusive approach of the creditor subsequently, would be obliged to have its fill of an inappropriate bail of the suffered prejudice.
