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In this study the authors criticize the case law of some courts by which it is ordered „the restoration of the previous situation”, in case a person acquires an asset (by committing an offence) and subsequently alienates it to a third party in good faith. The situation presented is justified, according to the authors, by the idea that, if the solution suggested is not accepted, an uncertainty and an instability will be created in the civil circuit, which are likely to lead to the infringement of the property right or of the mortgage right. Moreover, in the matter of real rights on buildings, uncertainty would be reached even in respect of the buildings recorded in the land book, thus infringing the provisions of Article 900 (1) of the new Civil Code, a text that establishes that „if a real right has been recorded in the land book for the benefit of a person, it will be presumed that the right exists for the benefit of such person”. -
The theme of this study concerns the distinction between the source of fiscal obligations (chargeable event of the tax base), on the one hand, and the individualization of these obligations through various fiscal administrative acts, issued for the application of the legal rules of tax law, on the other hand. In this regard, the author considers both the current Fiscal Procedure Code (the Government Ordinance No 92/2003, in force until 31 December 2015) and the new Fiscal Procedure Code (the Law No 207/2015), which expressly repeals the current Fiscal Procedure Code and shall enter into force on 1 January 2016. The author’s conclusion is that the source of the fiscal obligations is not the law itself, but the legal act, licit or illicit, which gives rise to the fiscal obligatory relation under the terms provided by law and materialized in the individual acts of application of law.
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The article presents the itinerary covered since the entry into force of the new Civil Procedure Code (15 February 2013) by the manner in which it has been regulated the execution of the arbitral judgment. Initially, the arbitral judgment had to be invested with executory formula for the purpose of being enforced. By the Law No 76/2012 for the implementation of the new Civil Procedure Code it has been eliminated the formality of investing the arbitral judgment with executory formula, which corresponds to the imperative to accelerate the enforcement of such judgments. In our opinion, the Law No 138/2014 amending and supplementing the new Civil Procedure Code has reintroduced, however criticizably, the procedure of investment with executory formula of the arbitral judgment, in view of enforcement. The author’s conclusion is that the legislator should have kept the elimination of the procedure of investment with executory formula of the arbitral judgment, thereby contributing to the simplification and the encouragement to resort to the arbitration procedure.
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The study is devoted to the analysis of the legal provisions on the civil liability for disregarding the copyrights, the rights related to copyrights and the sui-generis rights of the creators of databases. Specifically, there are discussed aspects such as: the basis of the matter, the nature of the infringed rights, the engagement of the civil liability (the nature of the legal actions regulated by Article 139 of the Law No 8/1996, the promotion of these actions, the jurisdiction to settle the litigations, setting of the damages, the provision of information and the provisional measures). The idea of the study starts, especially, from the little consideration given to the subject in the Romanian doctrine in the field of legal protection of the intellectual creation and in the numerous existing normative problems in the matter.
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The article analyzes the jurisdiction of the Romanian court to settle the divorce application in case of spouses, Romanian citizens, who do no longer reside on the Romanian territory. The problems are analyzed in relation to the Community regulations directly applicable in the Member States of the European Union, as well as to the provisions of the Civil Procedure Code in this matter.
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Este acceptabilă din punctul de vedere al cerințelor impuse de dreptul la un proces echitabil motivarea hotărârii judecătorești realizată prin preluarea în considerente a unei părți din argumentele invocate, în cadrul dezbaterilor, de către una dintre părți. Câtă vreme această preluare nu s-a realizat automat, ci este rodul propriului demers al judecătorului de interpretare și aplicare a legii la situația de fapt prin prisma susținerilor părților, nu există suport pentru a se aprecia că argumentele celeilalte părți ar fi fost ignorate. (Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal, Decizia nr. 1312 din 13 martie 2014) -
Conform art. 207 alin. (1) C.pr.pen., atunci când procurorul dispune trimiterea în judecată a inculpatului față de care s-a luat o măsură preventivă, rechizitoriul, împreună cu dosarul cauzei, se înaintează judecătorului de cameră preliminară de la instanța competentă, cu cel puțin 5 zile înainte de expirarea duratei acestei măsuri. Apreciem că acest termen trebuie a fi considerat un termen de decădere, pentru a fi în concordanță cu prevederile Constituției României, republicată, iar nerespectarea lui atrage decăderea procurorului din dreptul de a solicita menținerea măsurii preventive (cu notă aprobativă).
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In order to achieve the objective of free circulation of civil and commercial judgments, as part of the process of judicial cooperation in civil matters, it was adopted the Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters which shall apply only to actions brought, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015. In spite of the fact that the Council Regulation (EC) No 44/2001 of 22 December 2000 which regulated the same matters, has significantly contributed to the development of an area of the free circulation of judgments, certain differences between national rules governing jurisdiction and recognition of judgments have been constantly hindering the effectiveness of the access to justice of the Union’s members. In regard to such difficulties, the Regulation (EC) No 44/2001 shall be superseded by Regulation (EU) No 1215/2012 whose provisions are aimed at unifying the rules of conflicts of jurisdiction in civil and commercial matters and at ensuring rapid and simple recognition and enforcement of judgments given in a Member State. For that purpose, the new Regulation (EU) No 1215/2012 has brought, in the matters of recognition and enforcement, not only necessary clarifications but also substantial changes, such as the exclusion of the requirement of a declaration of enforceability. Moreover, a short analysis of its provisions is required regarding several aspects, such as the refusal of recognition and enforcement, the applicable procedure, the transitional provisions and the circumstances in which Regulation (EC) No 44/2001 shall continue to apply even after 10 January 2015.
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The entry into force of the new Criminal Code has determined, as it was natural, new approaches to doctrine and jurisprudence, and one of the perspectives of analysis is the correlation with the constitutional provisions. This study aims to establish an examination of constitutionality, as regards the offence of deceit, from the practice of the Constitutional Court on the previous Criminal Code provisions, identifying situations where the new rules can generate discussions on the compatibility with the Constitution.
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At the same time with the entry into force of the new Civil Procedure Code, according to the authors, the appeal has also made its way into the field of administrative disputes, in addition to the recourse, which is the traditional legal remedy in this matter. This study identifies the problems raised by this new legislative conception, noting the current legislative inconsistencies that impedes the process of application of the objective law and, moreover, generates non-unitary judicial practice.
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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.
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The study examines, under multiple aspects, the relationship employer – employee in terms of protection of the personal data of the latter. There are identified, as being applicable, the legal rules contained in the Labour Code, in the Civil Code and in other normative acts, but also in the European and international regulations. It clarifies, in practical terms, the concrete modalities (internal regulation, individual labour contract, addendum) which may set the rules in this matter for each employer.
