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The various methods and means used by the offenders committing murder for the purpose of getting away of the victim’s body subsequent to its commitment, provide the authors the occasion to issue certain comments related to the constituent content of the grave violation offence set forth in art 319 of the Criminal Code, in the manner of a body profanation, based upon a non-unitary judicial practice despite the advance of a solution within a recourse in the interest of the law. -
The crime committed with two forms of guilt, as a form of the legal unit of the crime, has given rise over the time to different controversial debates due to its mixed structure. A special place is held by the possibility of the secondary party’s existence, this possibility being accepted by most of the authors, as well as unanimously in the judicial practice. The authors of this paper developed for the first time three conditions of the secondary party’s existence to the crimes committed with two forms of guilt for retaining this form of participation easily in the future judicial practice. The non-fulfillment of any of the described conditions produces different legal consequences for the participants; however, the detention of the secondary party to the crime committed with two forms of guilt shall be excluded.
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Audit services is based on two premises: (i) companies must be able to choose their auditors according to their needs and at a reasonable cost and (ii) investors must be able to rely on an independent audit opinion based on an audit of high quality before investing in a company. It is in the public interest to ensure a sustainable audit function and, consequently, a competitive market for audit firms. Usually, a person invests in a company only once, in advance, has analyzed an audit report relating to the financial condition of that company. If, then, there is a failure of the enterprise (such as eg bankruptcy) that has earlier cases and unidentified audited by the auditor in place its civil liability issue. The question is to set a limit on the civil liability of auditors so that, on the one hand, to ensure fair compensation to those injured (investors), and on the other hand, auditors to take such risks reasonably.
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In this paper, the author reaches the conclusion according to which in the Romanian law, in principle, the parties’ inequality, in the mater of the transaction agreement, shall not be sanctioned, just as the cancellation of such injury agreement is not admissible. Despite all these, a transaction agreement concluded as a result of an economic constraint may be cancelled if the existing necessity conditions are met, and the disproportion affecting the contractual performances is unjust, illegal; according to this last aspect, the extent to which one of the parties misuses the economic dependency of the other party for the purpose of getting an undue benefit, shall be relevant.
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The provisions of art.1538 para. (1) of the new Civil Code define the criminal clause as being that according to which the parties set forth that the debtor undertakes to pay a certain allowance in case of the non-performance of the main obligation, and para. (4) of the same article sets forth: “the creditor may request the performance of the criminal clause without the obligation to prove any prejudice.” In order to grant the criminal clause, it is necessary to meet the following conditions: the existence of a criminal clause validly established, the non-performance, the inadequate performance or the delay performance of the contractual obligation, the debtor’s fault and his putting in default or being in default de jure. At the same time, the penalty cannot be requested if the performance of the obligation has become impossible for grounds which are not imputable to the debtor, such as the force majeure, the act of God, the deed of the victim or of a third party.
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In the regulations of the new Criminal Code, the legislator has not opted for a limited criminal liability of the legal entity, but for a general liability which may result because of the commitment of any criminal offence. Except the state, the public authorities and the public institutions which carry on any activities not representing the subject matter of the private field, the other legal entities may hold the capacity of active subject, no matter the nature and the seriousness of the committed criminal offence. The criminal liability shall be laid upon the legal entity only when the respective entity having a position of management, provision, decision etc. commits the deed set forth by the criminal law in carrying out the business line or in the interest or on behalf of the legal entity. In case of committing a deed set forth by the criminal law, both the criminal liability of the legal entity and of the natural person who contributed to its commitment or only of one of these two categories of persons.
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The paper examines the trust, a newly regulated institution in the content of the Romanian Civil Code (Law no. 287/2009) into force from 10 October 2011. The author formulates any critical remarks about the way in which the legislator defined the trust agreement, makes a comparison between the trust and the other similar legal institutions and highlights the specific elements of the parties and the content of the trust agreement. A special place shall be granted to the analysis of the fiduciary capacity, of the liability, of its obligations and relationships with the other persons, as well as to the analysis of the ways in which the trust agreement shall be terminated. The author formulates numerous de lege ferenda proposals as well, intended to align the legal rules in the matter with the objective legal reality.
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Following the effective date of the Civil Code (Law no. 287/2009, as republished) as at the 1st of October 2011, which repealed the Family Code, and the adequate amendment and of the Law no. 119/1996 regarding the civil status acts, as republished, in this paper the author examines the legal provisions regarding the effects of the dissolution of marriage by divorce, making certain references to the late relevant case law of the courts of law. This paper examines mainly, the legal provisions regulated by articles 382-404 of the Civil Code.
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This paper makes a detailed examination of certain essential provisions in relation to the preparation of the contract. The examination is focused especially on the novelty issues entered by the Law no. 287 of 17 July 2009 on the Civil Code which repealed the Civil Code of 1864 into force until 30 September 2011. The author proposed an examination based upon rigor and objectivity in his attempt to understand the true meaning of the provisions of the new regulations. To this end, the doctrine and the case law in the matter are taken into consideration, and especially the solutions for each issue under discussion are filtered by the domestic and external case law. Likewise, references are made to the legislations of other states, which represent sources of inspiration for the editors of the new Civil Code, for the purpose of understanding accurately the provisions related to the conclusion of the contract. At the same time, certain debates of the doctrine and case law are briefly examined as regards the interpretation given to certain provisions introduced in the new Civil Code and, as the case may be, a critical analysis is carried out as well, in relation to these issues.
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The article aims to review a recent and very controversial decision of the Appellate Division within the International Criminal Tribunal for the former Yugoslavia, dated November 16th, 2012, under which were acquitted two Croatian generals, notorious figures of the civil war in the former Yugoslavia, for several war crimes and crimes against humanity, in a surprising manner since it abolished entirely the decision passed by the Court of First Instance, that had indicted these defendants, and gave special interpretations to a number of institutions of law, in respect of which was already crystalized a constant judicial practice of this Court. -
In a period of significant turmoil in the judicial system, both at the institutional and at the conceptual level, marked by severe controversy rather than by the unity of opinion, re-discussing the constitutional positioning of the Prosecutor has become a common theme. Hierarchy is interpreted as a by-product of the political influence, and independence as a form of undermining the unity of action. The study seeks to demonstrate that the principles of subordination and independence are consistent with the organisation and functioning of the Public Ministry system and that these are not antithetical, but antinomical principles. Their concurrent operation is a dominant trait in other judicial systems in European countries.
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The study hereunder provides a succinct summary of the case law of the European Court of Human Rights in the field of the right to marriage, or more specifically in the field of restrictions on the right to marriage. In this respect there are examined: the right to marriage of convicts; marriage of transsexual persons; same-sex marriage. Finally, in light of the case-law of the ECHR, the author concludes that are consistent with this case-law the provisions of the new Romanian Civil Code, which entered into force on October 1st, 2011, under which marriage may be contracted only between a man and a woman, marriage between same-sex persons being prohibited, while marriages between same-sex persons, contracted abroad, by Romanian citizens or foreigners are not recognized in Romania.
