-
After a summary examination of the regulations and of the doctrine regarding the institution of civil nullities, the author illustrates the uncertainties produced by some special norms that establish absolute nullities for the violation of some imperative norms of protection for some categories delimited by subjects; it is concluded – starting from the principles – and with exemplification of jurisprudence – that such express nullities produce only some effects of absolute nullity and that the legal regime of absolute nullities does not always apply, in its entirety, as a whole. The presented legal construction offers the opportunity to observe the acute need for prejudicial procedures at the disposal of those who have to make decisions for the application of rules that produce legal uncertainty. -
The study examines the possibility of bringing into a limited liability company as a social contribution a good subject to a conventional right of pre-emption. The right of pre-emption is linked – by its nature, as well as by the regulation of the Civil Code – to the contract of sale and gives a preference – at an equal price – to a certain buyer, designated by law or by contract. Failure to comply with the pre-emption cancels the contract made with the third party and the pre-emptor becomes the acquirer if he makes the price available to the seller. The bona fide third party is guaranteed for eviction by the seller. The contribution in a limited liability company does not make a sale although it produces a transfer of ownership from the contributing partner to the company, because the partner does not receive a price but a participation in the company where the contribution is made. Therefore, the contribution of a good affected by a right of pre-emption cannot be refused to the receiving company by the Trade Register Office, on the ground that against it (the company) – acquiring third party – a preference for acquisition can be invoked by the conventional pre-emptor; this, even when the right of pre-emption is accepted against an offer of alienation. -
In the new context of legislation, the procedure of administrating evidence by lawyers or by legal advisers may represent an alternative to the classical method of administration by the court of evidence, increasing the chances of solving the dispute amicably. The procedure of administrating the evidence by lawyers or by legal advisers will be held according to a program approved by the court, in which the deadlines are set for administrating the evidence, taking into account the volume and complexity of them. -
-
The study analyzes the two procedural moments of judging the requests for revision, traditional in our law – the admissibility in principle and the retrial –, by referring, mainly, to the new amendments to the Criminal Procedure Code and to the jurisprudential solutions. There are taken into account the measures that can be taken at the same time with or after the admission in principle and the solutions that will be given in the retrial of the case. Whereas a substantial change in the matter of revision, following the entry into force of the new Criminal Procedure Code, concerns the exclusive revision of the civil side of the criminal trial, respectively the division of the material competence between the criminal court and the civil court, a section is devoted to this issue. Whereas the new provisions are quite elliptical in this matter, the paper tries to identify aspects that may raise problems of application and to suggest solutions.
-
The administrative-jurisdictional procedure established by the Law No 159/2016 and detailed by the Decision No 1171/2016 has utility in a specific area, that of electronic communications. By regulating the procedure for settlement of disputes between the suppliers of public networks of electronic communications and the network operators, on the one hand, and, respectively, of the disputes between the suppliers of public networks of electronic communications and the persons holding by whatever title a physical infrastructure installed inside a building, on the other hand, the Decision No 1171/2016 stands out by provisions of novelty, such as ensuring the contradictoriality and orality of the procedure by distance communication means or by ensuring the public consultation of the preliminary solution given by the Commission within the procedure of settlement of dispute. Similarly, there can also be found procedures regulated in the common law as well, but also derogations in matters of material and territorial jurisdiction of the competent court to censor the legality of the administrative-jurisdictional act issued to settle the case. -
Analizând cererea de recurs, instanța reține următoarele: În fapt, motivul de recurs invocat de recurenta-reclamantă Banca T. privește posibilitatea antrenării răspunderii civile delictuale a lichidatorului, în temeiul art. 22 alin. (4) coroborat cu art. 24 alin. (1) din Legea nr. 85/2006, pentru săvârșirea unui act prevăzut de această lege în competența sa. Ambele părți – atât recurenta-reclamantă, cât și intimata-pârâtă S. – S.P.R.L. – sunt de acord asupra următoarelor elemente de fapt: – la data de 24 martie 2011 a fost vândut la licitație un bun imobil (apartament) al debitoarei M. – S.R.L., al cărei lichidator este intimata-pârâtă S. – S.P.R.L. (Proces-verbal de licitație nr. 30 din 24 martie 2011); – în vederea participării la licitație, recurenta-reclamantă a făcut o ofertă de adjudecare a imobilului, în contul creanței pe care o are împotriva debitoarei M. – S.R.L., la prețul de 18.750 euro – echivalentul a 75% din valoarea de evaluare a imobilului (Adresa nr. 9552 din 24 martie 2011); -
The author examines the – complex – issue of the procedure – in Romania – in case of exequatur and the recognition of foreign judgments given in the Member States of the European Union, taking into consideration that in our country, at present, the common law in the matter is represented by Law no. 105/ 1992 regarding the regulation of the private international law relationships, while in case of judgments given in the other Member States of the European Union, a special law in the matter is considered, namely: the Council Regulation (E.C.) no. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, respectively the Council Regulation (E.C.) no. 44/2001 of 22 December 2000 concerning jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. -
The authors comment on the provisions of art. 1013 to 1024 of the new Romanian Code of Civil Procedure (Law no. 134/2010 of the Code of Civil Procedure, republished in the “Official Gazette of Romania”, Part I, no. 545 of 3 August 2012 and entered into force on 15 February 2013) on the instruction payment special procedure, whereby the legislator establishes uniform rules for combating the late payment of certain amounts of money, bringing together the provisions previously established by the two laws, currently repealed (Government Ordinance no. 5/2001 and Government Emergency Ordinance no. 119/2007). When stating the conclusions of the study, the authors welcome the legislative solution and point out that the payment instruction procedure can be used concurrently with the small claims procedure (art. 1025 to 1032 Civil Procedure Code), as these two special procedures do not exclude each other. -
In this article the author analyzes the procedure of individual complaint of the citizens before the Federal Constitutional Court of Germany as it is regulated in the Federal Constitution and in the special law on the constitutional control court. The constitutional text provides that the procedure in question is a legal means of appeal with the purpose of defending human rights and fundamental freedoms. Specifically, any person who claims that one of his rights or one of his freedoms enshrined in the Basic Law has been violated by an authority exercising public power may address the federal constitutional court. The author analyzes the procedure of individual complaint and separates it from other constitutional procedures.
-
Declaration of the unconstitutionality of the Article 164 (1) Civil Code provisions has determined the adoption, with an unjustified delay, of the Law No 140/2022 on some protection measures for people with intellectual and psychosocial disabilities and the modification and completion of some normative acts, which establish assistance for the conclusion of legal acts, judicial counseling and special guardianship, as well as a clear and flexible procedure for the establishment of these protection measures. Every person must be free to act in order to develop his/her personality, the state, by virtue of its social character, having the obligation to regulate a normative framework to ensure respect for the individual, the full expression of the personality of citizens, of their rights and freedoms, of the equal opportunities, resulting in respect for human dignity.
-
The article analyzes the regulation of trial when admitting guilt and the practical consequences resulting from this procedure. Admission of guilt can be made either by statement of the defendant in court, or under writ, in which case the proceedings may take place without the presence of the defendant. In terms of object of admission, out of the marginal terms of wording under Article 3201 Code of Criminal Procedure Code, it appears that it refers to “guilt”, but from the reading of paragraph (1) of the said wording it appears that admission refers to “committing acts written down in the document instituting the proceedings”. Should we relate this regulatory text to the provisions of Article 263 par. (1) Code of Criminal Procedure, regulating the indictment contents, it is clear that admission is limited to committing the crime exclusively, failing to refer to the legal classification granted under the document instituting the proceedings or any other person to which it relates. Article 3201 in the Code of Criminal Procedure is, as evidenced by the mere reading of its wording, of its marginal name and the topography of the Code of Criminal Procedure, undeniably, a procedural rule designed to accelerate the settlement process and not a rule of substantive criminal law. Bearing this legal nature, the authors argue that Article 3201 Code of Criminal Procedure can not be considered a more favourable criminal law (mitior lex), its provisions falling outside Articles 13-15 Criminal Code.
