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The author draws attention on the phenomenon of „money laundering” in the context of the necessity to combat cross-border organized crime and crime in general, in the context of the newest international instrument in the matter, the Convention of the Council of Europe on Laundering, Search, Seizure and Confiscation of Proceeds from Crime and Financing of Terrorism, adopted in Warsaw on 16 May 2005 and ratified by Romania through Law No 420/2006. This is a timely contribution that also presents the recent case-law of the High Court of Cassation and Justice in the field. -
This paper deals with contesting protective measures taken during criminal proceedings at the request of the civil party. Authors consider that it is the right of the civil party to request for such measures to be taken with regard to the assets of the defendant and to those belonging to the party liable under the civil law. Moreover, the civil party can contest the manner in which the court applies this request.
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Although the science and the practice of law have always enjoyed the consideration and the appreciation of society, their academic recognition remained, mostly, a desideratum. As a complex phenomenon: art, technics and science at the same time, the law represents complexity and difficulty in perceiving and affirming its status of scientific and cultural science. That is why, although the faculties of law were among the founding faculties of universities, the lawyers and their discipline came relatively late in the dome of academies. In Romania, the Romanian Academy, created in 1866, was initially concerned with the study of the national language and history, hardly opening its doors for sciences, in general, and social sciences, in particular. Facing this „conservatorism” the representatives of different sciences have opted to create some specialized academies, such as the Academy of Sciences (1936) or the Academy (Institute) of Moral and Political Sciences (1938). It was only in 1948, by creating the Division of legal and economic sciences, when the law received express recognition among the concerns of the high academic forum, but the lawyers are still under-represented within it. The increasing role of law in post-modern society and asserting its status as social complex science impose the revaluation of its academic status as well.
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While authorities with jurisdiction in the management of European funds exercise control and investigative activities they issue documents which, although they enjoy the presumption of legality like any administrative act, may give rise to litigations. Based on the special normative acts relevant for the management of European funds and on Fiscal Procedure Code, this paper analyses documents issued by such authorities, their legal nature, as well as the procedure for contesting such documents, as a guarantee of the principle of free access to justice.
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In negotiated contracts where parties have established clauses by mutual agreement so-called „abusive clauses” may exist. The abusive character of such clauses may be invoked in negotiated contracts on the ground that one party is always stronger than the other. The penal clause in negotiated contracts may be considered abusive if penalties are excessively high in relation to the extent of the damage or with regard to the value of the delivery. This study examines abusive clauses and abusive penal clauses in exclusive distribution contracts, in leasing contracts and in administrative contracts.
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The author deals with the jurisdiction for carrying out forced pursuit acts from the perspective of the provisions of Article 651 (2) and of Article 818 (1) of the new Civil Procedure Code and analyzes the problems of selling a building in an auction „at the highest offered price”. The analysis is carried out in the light of the condition of price seriousness required in matters of sale, where the serious price is the one which constitutes a sufficient cause of the obligation undertaken by the seller to transmit the property right on the asset that is the object of sale and it is transposed into the existence of a ratio between the quantum of the price established by the parties and the real value of the sold asset, without however claiming an equivalence between the price and the value of the asset.
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While examining the effects of the information procedure on the advantages of mediation in relation to the running of the prescription or limitation periods and corroborating the provisions of Law No 192/2006 referring to mediation with the provisions of the Romanian Civil Code in matters of prescription or limitation periods, this study reaches the conclusion that the procedure on the advantages of mediation prevents the running of the substantial prescription period and limitation period established by the legal provisions (which protect a private right) or by the convention of the parties when these have not began to run, and, respectively, it suspends the course of the prescription/limitation when these have began to run, for a period of 15 calendar days from the date when the prescription/limitation began.
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This study, while indicating the absence of systematic doctrinal concern in relation to the meaning of the term „child” used in the Constitution, in the Civil Code and in several other internal or international normative acts, suggests to approach this term, lato sensu, as relative of first degree in the direct line of descent and, stricto sensu, as minor person without full capacity of exercise. Likewise, the author analyzes the definition given to this term in Article 1 of UNO Convention on the Rights of the Child and he presents some of its consequences on the internal regulations in the field.
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In this study, the author examines the incidence of the provisions of Article 1221 et seq. of the new Civil Code (concerning the lesion) in the field of „business law”. In this respect, after a series of general considerations on the lesion in the context of the new Civil Code, as well as in the context of clarification of the concept of „legal relationships arising in the business environment”, the author examines, in detail, the problems of contracts in the business environment, by emphasizing, within the latter, their division into balanced contracts and imbalanced contracts. Such being the case, the author concludes that, in principle, the lesion is inapplicable in case of balanced contracts, but is incidental, as a rule, in case of imbalanced contracts.
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This article makes a brief presentation of the new basic principles of Romanian criminal proceedings, which represent general rules contained in the legislation of the Member States of the European Union, considered to be the basis of modern criminal proceedings. The validity and efficiency of these rules have been tested by the judicial practice in France, Italy, Belgium and others and by the case-law of the European Court of Human Rights.
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The Romanian legislator has introduced an innovation in criminal proceedings matters: the institution of the suspect, which is questionable from several points of view. According to the provisions of the new Romanian Criminal Procedure Code, the suspect is the person about whom, from the existing data and evidence in the case, a reasonable suspicion arises that he has committed an offence provided by the criminal law; the quality of suspect is acquired only when the prosecutor orders that the criminal prosecution – which had previously started only with regard to the deed (in rem) – be further conducted against that person. The suspect is not a party in the criminal proceedings, but a main subject to proceedings. In this study, the authors analyze the institution of the suspect, by presenting some critical aspects and by proposing the reconsideration of its regulation.
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The new Civil Procedure Code brings some elements of novelty with regard to producing the proof by expertise, also maintaining many of the solutions of the former legislation. This study presents the most important aspects with regard to producing the proof by expertise, using the doctrine and the practice from the period of application of the Civil Procedure Code of 1865 and attempting to interpret the elements of novelty brought by the current procedural legislation.
