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This article examines the fiduciary property through a historical and comparative analysis of the legislation and doctrine of Québec, France and Romania. The contemporary fiducia ought not to be confused for the Roman fiducia, whose name it borrowed. As a result of the reception of the Anglo-American trust in the mixed legal system of the Canadian province of Québec, the fiducia has been the subject of subsequent legal transplants into the continental tradition. The Romanian legislator, inspired by its French counterpart, took over the restrictions brought to the fiducia in said legal system. In the matter of real rights, this legislative option also meant the rejection of the doctrine of an ownerless patrimony, an innovation of the legal system of Québec, in search of a continental instrument to replace the division of title between the legal holder (trustee) and the equitable one (beneficiary), as enshrined in the Common Law tradition. Commenting on the solutions proposed within French legal literature (including the classification as a method of ownership or even as a result of dismemberment), the author argues that only a combination of them may fully explain the mechanism of the fiduciary ownership. In essence, the fiduciary owner acts like a true owner, but by virtue of a title held under a resolutive condition, while the beneficiary enjoys a virtuality of law in his capacity as an owner under a suspensive condition. However, the constraints to which the right of ownership transferred to the trustee is subject, in terms of its exclusivity and perpetuity, may be explained by the fiducia contract itself, the effects of which are assimilated to the conventional limitation operated, for example, through an inalienability clause. In other words, the fiduciary owner may be considered an owner under a resolutive condition, yet he remains subject to the conventional limitations brought upon by the very nature of the fiduciary operation. -
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The regulation of the Civil Code on periodic ownership was preceded by the Law No 282/2002 and by the Government Emergency Ordinance No 14/2011, which have transposed the European Directives concerning consumer protection with regard to the utilisation or time-limited use of movable and immovable assets. As a legal modality of the ownership right, the characters of the periodic ownership, although qualified by Article 646 (1) of the Civil Code, which refers to Article 687 of the Civil Code, as a form of forced co-ownership, is delimited by it. The present study outlines these elements of difference, the specificity of periodic ownership as real right, the rights and obligations of the co-owners in the exercise of the prerogatives arising from this quality. Periodic ownership is a particular case of forced co-ownership, of a temporary nature, because several people successively and repetitively exercise the attribute of use, specific to the ownership right, over a movable or immovable asset, at fixed intervals of equal or unequal duration. This form of ownership implies an overlapping of the real right of each co-owner over the entire asset, but whose use is limited during one year to the duration indicated in the ownership title. The critical aspects concerning the relations between the co-owners are cantoned to the provisions of Article 691 (2) of the Civil Code on the sanction of excluding the co-owner who, through his conduct, causes to another co-owner a serious disturbance in the exercise of the prerogatives of the periodic ownership right. -
Unlike the previous Criminal Procedure Code (1968), which briefly provided that the prosecutor must prepare a reasoned proposal of taking the measure of preventive detention of the defendant, the new Criminal Procedure Code regulates in a more detailed manner the proposal for preventive detention of the defendant in the course of criminal prosecution, by introducing the obligation of the prosecutor to indicate the legal grounds. In exchange, the new criminal processual law does no longer provide the prosecutor’s obligation to hear the defendant in the presence of the lawyer of his choice or appointed ex officio, before drawing up the proposal for preventive detention, as provided in the previous Criminal Procedure Code. Under such circumstances, the authors analyze the institution of proposal of preventive detention, by presenting some critical aspects and by proposing some improvements to the new regulation. Key -
În legislaþia românã, oportunitatea manifestãrii procurorului în procedura insolvenþei aparþine în exclusivitate acestuia ºi se înscrie în liniile directoare oferite de art. 45 alin. (3) C.pr.civ. Legea nr. 85/2006 nu prevede obligativitatea comunicãrii Ministerului Public a hotãrârii de deschidere a procedurii, iar procurorul nu este titular al acþiunii în acoperirea pasivului. Autorul considerã cã instituirea obligaþiei procurorului de a participa ºi pune concluzii în procedurã ar asigura o apãrare eficientã a ordinii publice, oferind premisele înfãptuirii unei justiþii plenare, în care atât interesele de ordin privat, cât ºi cele generale ar fi ocrotite. „De lege ferenda”, se propune participarea obligatorie a procurorului la acþiunea în acoperirea pasivului. -
ANDREESCU, MARIUS - Principiul proporționalitãții, criteriu de admisibilitate a cererilor de înlocuire a mãsurii arestãrii preventive. În: Dreptul, nr. 4/2010, p. 169-174. „De lege ferenda”, autorul propune ca în noul Cod penal, la capitolul care reglementeazã individualizarea judiciarã a pedepsei, sã se prevadã în mod expres cã sancțiunea penalã trebuie sã fie proporționalã cu situația de fapt, gradul de pericol social al faptei și scopul legii penale. În acest fel, s-ar garanta nu numai legalitatea sancțiunilor penale aplicate, dar și legitimitatea, justețea acestora în raport cu criteriile prevãzute de lege. Subiect: arestare preventivã; principiul proporționalitãții; noul Cod penal. -
1. ANDREESCU, MARIUS – Constituționalitatea recursului în interesul legii și a deciziilor pronunțate. În: „Curierul judiciar” – nr. 1/2011, p. 35-38. Autorul susține propunerea de lege ferenda ca, în perspectiva unei revizuiri a Constituției, sã se prevadã competența Curții Constituționale de a exercita control de constituționalitate asupra deciziilor pronunțate de Înalta Curte de Casație și Justiție în procedura recursului în interesul legii și asupra actelor juridice exceptate de la controlul judecãtoresc. -
1. ALEXE, IRINA – Aspecte privind mobilitatea înalților funcționari publici reflectate de jurisprudenþa instanțelor din România, în „Revista de drept public” nr. 1-2/2012, p. 90-102. Autoarea, în urma analizei reglementãrilor în vigoare și a jurisprudenței în domeniu, face urmãtoarea propunere de lege ferenda: se apreciazã ca fiind judicioasã introducerea formulãrii “principiul mobilitãții”, cu consecințele de rigoare, în primul rând aceea de a stabili un cadru programat întemeiat pe criterii clare și coerente în aplicarea principiului mobilitãții. -
Currently, under the increasingly intense and diverse interactions between countries, due to the unprecedented mobility of individuals, in space, or to the dynamics of public international law, as such, (for example, in international human rights or international criminal law) the theoretical model that governs the relationship between international law and domestic law has become a topical one. In addition, the existence of several supra-state forms of cooperation, such as the European Union, bring into question the relationship that is being established, on the one hand, between the law of those forms of cooperation and the Member States' national law and, on the other hand, between the former and general international law. In this paper I will discuss the relationship between international law and Romanian domestic law, as regulated by Romania’s organic and constitutional provisions and taking due account of Romania’s EU membership. The paper is structured in three sections corresponding to the general theoretical approaches to the matter (Section II), the legal, institutional and scholars’ approaches (Section III) and conclusions and de lege ferenda proposals; the latter will address both the content of the regulations, as well as some aspects of legislative technique (Section IV). -
The Collective labour contract unique at national level for 2007–2010 was undoubtedly a point of reference in the matter of collective negotiation from Romania, because its contractual clauses established the qualitative accumulations gathered during the conclusion of the collective labour contracts unique at national level, starting with the first contracts concluded after the entry into force of Law No 13/1991 in 1991. Having in view that, under the influence of the Law No 62/2011 (of the social dialogue), the conclusion of the Collective labour contract unique at national level is not permitted, the useful clauses of the mentioned collective labour contract can no longer be applied. In this study it is proposed the emphasis of the essential clauses of the Collective labour contract unique at national level for 2007–2010 and the formulation of a de lege ferenda proposal for their inclusion in the labour legislation. -
In the new Civil Procedure Code, a great number of court decisions remain final in the appeal in tribunals or courts of appeal, and there is no procedural way to fight against illegal or unfounded decisions. Given the judicial realities of our country, it is speculative to believe that the enforcement of the NCPC will automatically stop tribunals and courts of appeal from pronouncing illegal or unfounded decisions. Therefore, it is only natural that an adequate regulation is adopted, by the reintroduction of the action for cancellation as a last remedy for the correction of illegal or unfounded decisions. Although the action for cancellation proved its utility, it was eliminated from the Civil Procedure Code, by the Government Emergency Ordinance no. 58/2003, amending and supplementing the Civil Procedure Code. The parties in the trials for which the decisions remain final in the appeals filed with various tribunals and courts of appeal do not have access to the High Court of Cassation and Justice, and in these circumstances illegal or unfounded decisions are not submitted to the judicial control of the latter. The requirement to correct illegal or unfounded judgements passed by the courts of law is provided by art. 6 § 1 in the European Convention of Human Rights, art. 1 par. 3 and art. 124 in the Constitution, moral rules and the precepts of the Holy Bible, the sacred book of Christianity, according to which all deeds and actions of people must be based on truth and justice. -
The study analyzes several proposals to ensure the settlement with celerity of the civil trial. The authors consider that these are the following: providing the necessary staff; generalization of the process of digitalization of justice and the transition to the „online civil trial”; transferring the competence to settle non-contentious application for certain areas to other authorities; extension of the special simplified proceedings carried on exclusively in writing or even without summoning the parties; pronouncing the judgments in civil matters only after they are motivated; abandoning the verification of the material competence in the stage of regularization; proposal to repeal the procedure for regularization of the application for summons. A very important proposal is the one that suggests that the pronouncing of judgments in civil matters should be made only after they are motivated. The authors consider that it is necessary for the drawing up to be made prior to the pronouncement of the judgment, because the considerations must be identified and formulated before the pronouncement, because they must necessarily be the basis for transposing the law by the act of justice. Another important aspect proposed by the authors is the complete repeal of the regularization procedure in its current form and the establishment of the first trial term in the urgent cases after a period of two weeks from the registration of the application and 30 days later in the case of the other applications, following that the possible measures of regularization be ordered by the judge at the first trial term with the summoning procedure being legally fulfilled, following that, practically, in a period of maximum two months, it will be possible to proceed to the investigation of the trial.
