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The authors make an analysis of the Romanian legislation in the matter of forensic reports – and, particularly, in the field of medical malpractice – and they establish that, in these areas, there is a plurality of normative acts of different levels (laws, Government ordinances, Government decisions, orders of ministers), regulations which, quite often, are confused, contradict each other, are incomplete, sometimes they are not correlated with the rules of principle in the matter of evidence included in the current Civil Procedure Code, respectively the Criminal Procedure Code etc. At the end of the analysis, the authors propose the repeal of this entire scattered legislation and the elaboration of a single normative act on the matter (at level of law or of Government ordinance) that, having regard to the current legislative experience, would completely and unitarily bring a modern, unique and unitary regulation with regard to the forensic reports (including those concerning the medical malpractice). -
As it can be inferred from the title, in this study the author intends to make an analysis of the institution of „exclusion of evidence”, which exists in the Romanian Criminal Procedure Code of 1968, which is maintained and further detailed in the new Criminal Procedure Code, differently interpreted in the doctrine and less present in the case-law from Romania. The study begins with a general and comparative presentation of the „sanction” in question in the former and in the present regulation, also being analysed the modification brought by the Law implementing the new Criminal Procedure Code. Within this study there are presented and analyzed the conditions in which the sanction of exclusion of evidence operates, as regulated by the present Criminal Procedure Code. However, the analysis focuses on the doctrinal interpretation of these conditions, by emphasizing the existence of a trend to relate the sanction of exclusion of evidence to the conditions of the sanction of nullity. As far as the author is concerned, she pleads for the interpretation and practical application of the sanction of exclusion of evidence separately from the conditions of nullity, subject only to the breach of the principle of legality and loyalty in providing evidence. For this purpose, the author also makes some interesting de lege ferenda proposals.
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In the ambience of the legislative framework instituted by the new Civil Procedure Code, this study intends to make an analysis of several aspects referring to the determination of the jurisdiction of law courts which settle disputes in matters of administrative disputes, regulated by the Law on administrative disputes No 554/2004, in comparison with the procedural provisions instituted by the new Civil Procedure Code. In order to achieve the proposed approach, the study analyses the compatibility of the procedural rules of common law included in the new Civil Procedure Code referring to the determination of the jurisdiction of the law courts in relation to the provisions of the Law No 554/2004 regulating the jurisdiction of the law courts in matters of administrative disputes.
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This study is dedicated to the analysis of the rules of the Civil Code established for „the presumption of the legal time of conception” and to „the presumption of paternity”, insisting mostly on the novelties brought by the current regulations and by the reactions of the specialized literature in this regard. Where appropriate, de lege ferenda proposals have been grounded in order to eliminate the reported legislative inconsistencies. Also, personal points of view have been expressed on various controversial aspects of the doctrine in relation to the interpretation of the legal rules established for these two important legal institutions.
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Law No 85/2006 on the procedure of insolvency was initially repealed and replaced by the Government Emergency Ordinance No 91/2013 on the procedures for preventing insolvency and of insolvency, which was in force only a few days, being declared unconstitutional, in its entirety, by the Constitutional Court of Romania. For this reason, it was necessary to adopt a new law on this matter (No 85/2014) which entered into force at the end of June 2014. In this study, the authors examine more extensively the principles of the procedure of insolvency, as well as the rights and the obligations of the participants, as currently regulated by Law No 85/2014, in comparison, when appropriate, with the previous law (Law No 85/2006).
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În cazul în care societatea a hotărât, prin hotărâre AGA, demararea acțiunii în răspundere împotriva membrilor organelor sale de conducere, fără a desemna un mandatar special împuternicit cu efectuarea demersului judiciar pentru punerea în aplicare a acestei hotărâri, nu se poate considera că mandatul general de administrator cuprinde, implicit, acest mandat. Prin urmare, acțiunea în justiție promovată de administrator în numele societății, fiind formulată de o persoană care nu prezintă mandatul special cerut de lege, nu respectă cerințele impuse prin art. 155 din Legea nr. 31/1990 cu privire la condițiile speciale ale reprezentării, devenind, astfel, deplin incidente dispozițiile de drept procesual civil referitoare la lipsa dovezii calității de reprezentant, reglementate prin art. 161 C.pr.civ., care impun, în condițiile respectării regimului procesual al excepției, anularea cererii de chemare în judecată. (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 3726 din 5 noiembrie 2013) -
Aspecte introductive. Motivarea unei hotărâri judecătorești este procesul cognitiv prin care judecătorul, în raport de petitul acțiunii, argumentele părților, probatoriul administrat și dispozițiile legale, elaborează soluția. Motivarea trebuie să înglobeze toate rațiunile ce au dus la edictarea soluției1, expresie a judecății efective a cauzei. Este deci esențial ca soluția pronunțată să aibă la bază o motivare completă, denumită în doctrină ca suficientă (deci nu se urmărește o motivare totală care să răspundă fiecărei susțineri a părților, dar nu se poate accepta o motivare parțială), care să se raporteze cel puțin la fiecare categorie de argumente invocate de părți, prin arătarea rațiunii pentru care a fost reținută respectiva categorie de argumente ori înlăturată.
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This study deals with a new institution in the Romanian criminal legislation, namely the plea agreement, which is a deal of the prosecutor with the major defendant concerning the offence, the evidence, the form of guilt and the punishment imposed, all taking the form of a simplified procedure. By combining the theoretical and the practical aspects, the article is of great interest to those who apply the criminal law. Being written in a way which transcends the already known generalities regulated in the Criminal Procedure Code, the study specifically concerns the particularities and the difficulties which accompany the application of this new legal mechanism.
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The study contains an analysis of the theoretical and practical aspects concerning the extraordinary judicial remedy of reopening criminal proceedings in case of trial in absence of the convicted person in the light of the new Criminal Procedure Code. First, the author presents the reasons for imposing the establishing of an effective remedy in the positive law through which the person on trial in absentia can obtain a retrial in his presence. Further on, after a review of the evolution of national legislation in the field of safeguards for retrial of the person on trial in contumacy, the author of the study emphasizes the meaning conferred by the Romanian legislator to the notion of „trial in absence”. Similarly, there are treated the conditions and the procedure of reopening the criminal proceedings, the particularities of retrial and, finally, the concurrence between the procedural mechanism of reopening criminal proceedings and other judicial remedies – the appeal and the contestation for annulment. Likewise, the author also makes some proposals de lege ferenda for the purpose of improving the regulation of the analyzed institution and of avoiding the appearance of some non-unitary practices during its application.
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The institution of suspension of the individual labour contract is regulated by Articles 49–54 of the Labour Code (Law No 53/2003, republished on 18 May 2011). More or less recently, the Law No 255/2013 for the implementation of Law No 135/2010 on the Criminal Procedure Code (entered into force on 1 February 2014) and for amending and supplementing some normative acts which include criminal procedural provisions, supplemented the Labour Code (republished) by adding Article 52 (1) c1), pursuant to which the suspension of the individual labour contract occurs (on the employer’s initiative) also „in case the measure of judicial control or of judicial control on bail has been taken against the employee, under the terms of the Criminal Procedure Code, if there have been established, as his duty, obligations which prevent the performance of the labour contract, as well as in case the employee is under house arrest, and the content of the measure prevents the performance of the labour contract”. In this study, the author analyses this new and recently regulated case of suspension of the individual labour contract on the employer’s initiative.
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In the absence of some systematic concerns with significant results, the concept of legal culture still remains at the stage of exploration of its meanings. Starting with its increasing role in the configuration of the law, this study deals with defining the concept, placing it in the context of culture in general and emphasizing the constitutive elements and the main contributions: the history of law, the legal language, the dialogue by means of comparative law, the practice of justice and others. The professional legal cultures and their role occupy an important place in the spiritual concert of society. It is analyzed the legal perception of the concept of culture, the role of scientific research in the matter and the implications of globalization. An outline of the Romanian legal culture in the historical dynamics completes the author’s approach.
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The definition of the legal guard of things and animals within Article 1377 of the Civil Code is one of the elements of novelty in our civil legislation, summarizing the most important features outlined over time in the doctrine and in the case-law. The study intends, starting from this definition, to present a selection of solutions and comments concerning the conditions of engaging the tort civil liability of the guardian, the transmission and the splitting up of the legal guard, as well as the causes which exonerate the guardian from its liability.
