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By critically analyzing the foundation of the civil contract, in light of the provisions of the current Romanian Civil Code, in relation to the modern Western European legal doctrine, and by insisting on some obsolete and/or contradictory legal regulations of the new Romanian Civil Code, the author of this study, on the one hand, considers that the principle pacta sunt servanda has presently become a myth, that we are witnessing the constant decline of the autonomy of will in matters of civil contracts and, at the same time, a series of new developments as regards the limits of the contractual freedom, the legal regulation of unpredictability in the new Romanian Civil Code (Article 1271) being relevant in this respect. Finally, the author believes that the current Romanian Civil Code (of 2009) contains a number of inconsistencies and contradictory regulations under the mentioned aspects, for which reason he proposes, in conclusion, the recast of the Code as soon as possible, taking into account the numerous failures thereof. -
In this study, the author examines the problems of granting in Romania the subsidiary protection for the asylum seekers in case of generalized violence in situations of armed conflict, stating that, according to the internal and international legal terminology, the subsidiary protection is a form of international protection from which the asylum seekers can benefit. In this respect there are presented: the legal framework – international, European and internal – in the matter, as well as the conditions of granting the protection in question for the asylum seekers in case of generalized violence in situations of armed conflict.
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The normative act which regulates the Romanian citizenship is the Law No 21/1991, republished on 13 August 2010. Recently (on 15 September 2015), the Law on the Romanian citizenship No 21/1991, republished, has undergone important amendments and supplements brought by the Government Emergency Ordinance No 37/2015, an ordinance whose content is the subject of this study.
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Contestația în anulare împotriva deciziilor rămase definitive în recurs, prin care a fost invocată încălcarea principiului non bis in idem, se judecă în conformitate cu dispozițiile noului Cod de procedură penală în materia contestației în anulare. Cazul de contestație în anulare, prevăzut în art. 426 lit. i) din noul Cod de procedură penală, referitor la ipoteza în care „împotriva unei persoane s-au pronunțat două hotărâri definitive pentru aceeași faptă”, nu este incident, dacă faptele cu privire la care s-au pronunțat două hotărâri definitive de condamnare sunt diferite, neexistând identitate de faptă, indiferent dacă încadrarea juridică a faptelor este aceeași. (Înalta Curte de Casație și Justiție, Secția penală, Decizia nr. 1479 din 29 aprilie 2014) -
The entry into force of the EU Regulation No 1215/2012 brings an important element within the process of evolution designed to ensure the free movement of judgments on the territory of the European Union: suppression of the exequatur. Given that, under the influence of the Regulation No 44/2001, the first judgment delivered in the Member State of enforcement was precisely the declaration of enforceability (or the exequatur), changing the enforcement procedure within the Regulation No 1215/2012 has also brought, necessarily, a reform of the system of legal remedies. Without studying thoroughly the fundamental conditions which can lead to the refusal of enforcement, this paper aims at analyzing the main amendments which the new regulation brings in the matter of legal remedies which are available to the debtor in the Member State of enforcement, trying to make an adjustment of the case law of the European Court of Justice in the matter, to the new wording within the Regulation No 1215/2012, as well as an analysis of the compatibility of the measures adopted by Romania in view of applying the Regulation No 44/2001 on the declaration of enforceability in relation to the new system proposed by the European legislation now in force.
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The article aims to analyze the regime of regulation and of application of punishments ordered by the judgments of the international criminal courts, at a moment when the two ad-hoc tribunals, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, are in a period close to the end of their mandate, and the International Criminal Court is undergoing crystallization of a practice, after the first final judgments of its activity were delivered. There are reviewed, on the one hand, the regulations within the statutes of these courts on punishments, their doctrinal foundations, as well as controversial aspects or aspects which give rise to comments in their judicial practice. There are also mentioned some aspects concerning the enforcement of punishments, taking into account the special circumstances in which these courts carry on their activity.
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In this paper there are presented a number of aspects on a subject of great present interest: tax fraud. The theoretical approach of this contemporary scourge has been carried out starting from the identification of the factors which favour it and of the forms of operation, ending in the review of the measures for combating it and of the types of applicable sanctions.
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This study focuses on the difficulties identified in the practice of the law courts which establishes the processual remedy made available by the criminal processual law assuming that two or more criminal judgments, on the same subject, were pronounced at different times. Thus, the judicial practice has outlined different visions in the qualification of the legal remedy given the proximity that may be encountered between the case of review on the irreconcilability of the judgments and the case of appeal for annulment on the infringement of the authority of res iudicata.
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The non-unitary practice of some courts and public prosecutor’s offices in the district of the Court of Appeal of Oradea, generated by the different interpretation of some legal provisions in the criminal and criminal processual matters, gives the author the opportunity for some comments and de lege ferenda proposals. This study deals with the controversial aspects referring to the following institutions of criminal law and of criminal processual law: the jurisdiction of the judge of rights and freedoms in the matter of preventive measures in case of joining some cases; the complex offence or the formal concurrence of offences in case of committing some acts of outrage or judiciary outrage; the solutions of the preliminary chamber; the territorial jurisdiction of the criminal prosecution bodies under the terms of unique referrals; the concurrence of qualifications (of texts, of rules) or ideal concurrence of offences; the legal nature of the institutions of waiver of application of the punishment and the postponement of the application of punishment.
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In this study there are analyzed the categories of administrative acts on which there were controversies about the exercise of judicial control of these acts by means of a plea of illegality regulated by Article 4 of the Law on administrative disputed claims No 554/2004, especially prior to the amendment and supplementation of this legal text by the Law No 76/2012 for the implementation of the new Civil Procedure Code. Likewise, it is emphasized the concern of the legislator to settle the doctrinal and jurisprudential controversies concerning the scope of the object covered by this plea, by the amendments and supplements brought by this latter normative act, but, nevertheless, it is not out of the question that some of these controversies will also continue in the new legislative context, until a stable case law in the matter is formed.
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The study is devoted to the systematic analysis of the provisions of the Law No 8/1996 on copyright and neighbouring rights devoted to the legal status of the computer programs. The analysis is also carried out by considering the internal regulations in relation to those of the Directive of the Council of the European Communities No 91/250/EEC on the legal protection of the computer programs. Specifically, the object of the analysis covers aspects such as: the definition of the computer programs; their legal nature; the elements of the computer programs subject to legal protection and those that elude this protection; the copyright holders in case of computer programs; the rights resulting from the creation of the computer programs; the capitalization of patrimonial rights in the case of computer programs.
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The study reiterates, in other aspects, the previously conducted analysis of the autonomy of the labour law, having in view the preamble of a civil decision of the 7th Division for cases concerning labour and social insurance disputes, within the Court of Appeal of Bucharest. This preamble also states: „The provisions of the Civil Code have nature of general law, representing the common law in the matter of civil legal relations in a broader sense, a matter where the labour relations are also included.” This study shows that, if such a statement would be retained, this would mean to accept implicitly the inexistence of autonomy of the labour law. As a result, it briefly analyzes the main specific features of the labour relations compared to the civil ones, reiterating that the labour law is a mixed branch of law, autonomous, but not independent from the civil law, a component of the private law. The rules of the civil law apply, as rules of common law, only subsidiarily, in the absence of some specific regulations of labour law and unless this is contrary to the particularities of the legal labour relations.
