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In this paper we intend to determine if the legal regime applicable to the superficies consisting in the right to build on the land of another is different from that prescribed for the superficies established on an existing building. Although it defines it in Article 693 (1), as a form of the right of superficies, the Civil Code does not contain provisions with special reference to the exercise of the superficies consisting in the right to build. Only in the event of ending of this special superficies due to the expiry of its duration, Article 699 (1) and (2) of the Civil Code provides for a regime derogating from the general rules of artificial real estate accession. In these circumstances, the powers of the superficiary who acquired the right to build on the land of another were indirectly inferred from the restrictive provisions contained in Article 695 (2) of the Civil Code, applicable to the superficies established on an existing building. The conclusion we reached is that, when superficies takes the form of the right to build, the superficiary enjoys a preferential treatment compared to that applied to the one who has acquired a superficies on existing buildings. This regime remains favorable in case of ending of the right of superficies due to the expiry of its duration, based on the special rules derogating from the general ones regulating artificial real estate accession established as a result of the ending of the superficies. The common rules applicable to both forms of the right of superficies were not tackled in this paper. -
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The apparition of the first Administrative Code of Romania – an essential legislative document for the activity of the public administration, for the life of the Romanian State, as a whole – brings, among other things, a significant novelty: the regulation of the legal regime applicable to contractual staff. Such a regime is a justified option of the legislator, taking into account the particularities of this category of personnel – an integral part of those who perform the work as employees. The study carefully analyzes the specific legal norms that apply to the contractual staff and solutions are offered for their practical application. It is concluded that two categories of legal norms produce their effects: the first is constituted by the norms specific to the contractual staff, and the second is formed of the norms that apply also to public servants. Although both categories of norms are part of the Administrative Code, they – respectively those that apply to the contractual staff – are also integrated as part of the labour law, being at the confluence of labour law with administrative law. The common law for the regulations regarding the contractual staff can be found in the norms of the Labour Code. -
Cross-border private life is under the rule of legislative changes occurred in the European law and in the national private international law. The property regimes of the international couples benefit from parallel regulations – the Regulation „matrimonial regimes” and the Regulation „registered partnerships”, for the states participating in enhanced judicial cooperation, the national law respectively, for the other Member States. Although they have different sources (the marriage, the registered partnership), the matrimonial regime and the partnership regime have multiple areas of convergence (the role of the will of the parties in determining the law of the patrimonial regime and in designating the competent court of law, the objective location of regimes, the most connecting factors). At the same time, the elements that differentiate the property regime of the spouses and of the partners configurate the specifics of the couples’ unions and the instruments of achieving the predictability and security of the civil circuit with an element of extraneity. -
The article aims to analyze the regime of regulation and of application of punishments ordered by the judgments of the international criminal courts, at a moment when the two ad-hoc tribunals, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, are in a period close to the end of their mandate, and the International Criminal Court is undergoing crystallization of a practice, after the first final judgments of its activity were delivered. There are reviewed, on the one hand, the regulations within the statutes of these courts on punishments, their doctrinal foundations, as well as controversial aspects or aspects which give rise to comments in their judicial practice. There are also mentioned some aspects concerning the enforcement of punishments, taking into account the special circumstances in which these courts carry on their activity. -
Taking into consideration the subtle and random criteria as an incidence in the delimitation of influence peddling from the fraud offences, it is likely that in very similar cases of misleading, the criminal will be lucky due to the occurrence of the influence peddling or it is likely that should not have been lucky when he committed materialized deeds supplementing the constitutive content of the fraud offence in relation to similar material damages. It is likely to cause material damages also in the matter of the formal criminal deeds and in the process of the legal and judicial individualization of the punishment, also the amount of the material damages produced as a result of the concrete endangerment offence should be taken into account. -
The new Romanian Civil Code (Law no. 287/2009), voted by the Parliament, promulgated, and published (on 24 July 2009), but not yet in force, regulates the following matrimonial regimes: the regime of legal community; the regime of conventional community; the regime of separation of property. In this study, the regime of separation of property is examined, in the light of art. 360–365 and art. 370–372 of the new Civil Code. In this regard, the author examines the categories of property under the regime of separation of property; the personal property of the spouses, the common property per shares of the spouses; the use of one spouse’s property by the other spouse; the liability of spouses for the personal obligations. -
The national system of public administration is subject to the impact of the medical-sanitary crisis in various forms, on all levels of organization, being additionally responsible and obliged to identify solutions of a normative and administrative nature. One of the important negative effects generated by the current medical-sanitary crisis is the impossibility of the administration to ensure the continuity of activities whose realization is conditioned by administrative authorization, by extension/renewal of authorizations, approvals, agreements, etc., making use of some acts during the validity period, in the sense of giving them the effects provided by law, or the exercise of some personal rights, on the basis of some documents (such as identity documents) when they are in the period of validity. The lack of an infralegal normative framework, of secondary regulation, establishing the scope of the documents the validity of which is extended during and beyond the cessation of special states of emergency and of alert and the conditions in which the prorogation of validity operates, leads to a non-unitary application of the normative act of primary regulation, which includes a general formulation, and inevitably at an additional pressure on the specialized administrative contentious courts, which will be notified either by their holders/beneficiaries, or by third parties whose rights and legitimate interests are harmed.
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The author, comparatively examining the provisions set forth under Articles 1402-1404 of the former Civil Code (1864), Article 45 of the former Commercial Code (from 1887), both currently repealed, with those set forth under Article 124 of Law No. 71/2011 relating to the implementation of the new Civil Code, concludes that, despite an explicit intervention, under the rule of the new Civil Code (Law No. 287/2009) disputed revocation is forbidden at present for all contentious rights, irrespective of their nature. Currently, disputed revocation is allowed only for assignment of rights concluded prior to October 1st, 2011 (when the new Civil Code was enacted) -
In this study, the author examines the two special banking procedures (the special supervision and the special administration), which can be ordered by the National Bank of Romania with respect to the Romanian credit institutions, based on the Romanian legislation in the field (Art. 237 – Art. 24022 of the Government Emergency Ordinance no. 99/2006 on the credit institutions and the capital adequacy, successively modified and amended through four laws and three emergency ordinances between 2007–2011). -
The legal regime of the penalty clause is established under the purports of Articles 1538-1543 of the new Romanian Civil Code (yet unenforced). Analysis of these regulations is undertaken in the study hereby by putting forward three issues considered defining: the legal nature of the penalty clause, its incidental character and mutability. Taking as reference point the definition of penalty clause set forth in Article 1358 par. (1), it is argued that the Romanian legislature has endorsed dualistic theory, according to which the penalty clause is a civil reparation remedy or a sanctioning repair, for the case of unlawful non-performance of the main contract by the debtor. The incidental character of the penalty clause is explained on account of the dependency relationship that exists between it and the obligation arising out of the main contract. Consequently, in principle, the penalty clause follows the legal destiny of the main obligation, according to the principle accesorium sequitur. To this rule there is but one exception: resolution of the main contract does not affect the existence and enforcement of the penalty clause. In terms of mutability of the penalty clause, it is found that its judicial review is permissible only by way of reductibility, where it is manifestly excessive as compared to the foreseeable damage caused to the creditor through unlawful non-performance of the obligation arising from the main contract.
