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Declanșarea și judecarea unui proces atrag per se o serie de cheltuieli bănești care se materializează în taxele judiciare, onorariile avocaților, experților și ale altor specialiști, ori în sume de bani cuvenite martorilor chemați să răspundă în fața judecătorului, pe lângă multe alte inconveniente. Dacă sarcina înfăptuirii justiției aparține statului, principiu recunoscut în majoritatea sistemelor democratice, se pune problema sarcinii suportării cheltuielilor pe care le presupune judecarea unui litigiu. S-a ajuns astfel la „compromisul” prin care cheltuielile de judecată să fie împărțite, aproximativ proporțional, între stat și părțile litigante. Culpa procesuală este izvorul cheltuielilor de judecată, partea îndreptățită la acordarea acestora este partea litigantă, potrivnică celei care cade în pretenții și, pe cale de consecință, cea care a fost în culpă procesuală, prima fiind „victima” celei de-a doua. Ab initio trebuie precizat că stabilirea cheltuielilor de judecată va fi făcută de instanță numai în măsura în care acestea au fost solicitate în cursul procesului pendinte, faptul că instanța nu le-a acordat reprezentând o omisiune a acesteia, care poate fi îndreptată pe calea unei cereri de completare a hotărârii, dacă partea are deschisă această procedură. Probleme s-au ivit în legătură cu actualizarea cheltuielilor de judecată în faza de executare silită, când executorul judecătoresc proceda la punerea în executare a hotărârii judecătorești. Astfel, s-a născut întrebarea „Poate executorul judecătoresc să actualizeze sumele cuvenite creditorului cu titlu de cheltuieli judecătorești?” Înalta Curte de Casație și Justiție a limpezit problema de drept ridicată și a statuat că sumele acordate printr-o hotărâre judecătorească pot fi actualizate în funcție de rata inflației, de executorul judecătoresc în etapa executării silite (cu notă aprobativă). -
Calea de atac a contestației poate fi exercitată, în condițiile art. 347 C.pr.pen., inclusiv atunci când niciun participant la procesul penal nu a formulat cereri sau ridicat excepții în procedura camerei preliminare. În acest scop, încheierea prin care judecătorul finalizează procedura de cameră preliminară trebuie comunicată participanților, eventuala omisiune putând fi revelată inclusiv în calea de atac a apelului, cu consecința regresării procedurii din faza judecății în faza camerei preliminare (cu notă aprobativă).
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The new Romanian Civil Code contains references to the goodwill, but it does not regulate the legal regime of the goodwill. In the absence of a legal regulation of the goodwill, the legal nature of the goodwill is analysed on the basis of the new conception of the Civil Code concerning the patrimony of the natural person and of the legal person. According to the Civil Code (Article 31), the unique patrimony of the natural or legal person may be subject to a division in the cases and under the conditions provided by law. Allocation patrimonies are the fiduciary patrimonies and those allocated to practicing an authorized profession. In the light of this conception, the goodwill represents an allocation patrimony, namely a distinct fraction of the patrimony of the natural or legal person, intended for conducting the trading activity. Under the terms of the new Civil Code, which admits that the patrimony of a natural or legal person may be subject to a division or an allocation, it is fully justified to qualify the goodwill as „trading patrimony”, a name repudiated in the past. -
The new Fiscal Code and the new Fiscal Procedure Code harmonized with the European Union legislation have brought significant mutations in the development of the relations of fiscal law and of fiscal processual law between the public tax authorities and the taxpayers/payers. These relations of fiscal law and of processual fiscal law have as their primary foundation the fiscal administrative act, which underlies the entire edifice of the fiscal matter. Starting from these desiderata, this study aims at analyzing several aspects regarding the implications which the new regulatory framework in fiscal matters has brought in the field of adoption of some fiscal administrative acts, emphasizing, at the same time, the distinction which must be made between the fiscal administrative acts and the administrative acts whereby budgetary claims are individualized.
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Important matters of law generate the verification of the legality of the acts of the legal persons of private law specified in the title. Such verification, as revealed by the judicial practice in this matter, involves the relation of the theory concerning the legal acts within the scope of public law to the corresponding theory within the private law. This interdisciplinary approach is necessary in order to correctly identify the conditions of validity related to the legal acts qualified as being acts of authority, given their nature, purpose and addressees.
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This study proposes a comparative analysis of the main economic and financial offences from their regulatory perspective, given the significant amendments of the Romanian criminal legislation occurred starting with 1 February 2014. The author makes a presentation of how the incrimination of these criminal acts has been amended, regardless of the relevant provisions, the Criminal Code or the special laws. He insists on the situations where amendments of substance occurred and it is analyzed their opportunity, as well as the effects reflected by the judicial practice. Similarly, critical notes are exposed, with the necessary arguments on some of these legislative amendments.
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In this article, the author analyzes the parliamentary procedure for the review of laws, pursuant to the request of the President of Romania, in the light of the case law of the Constitutional Court. In its judicial practice, the court of constitutional administrative disputes found that the provisions included in the parliamentary regulations of both legislative Chambers, which regulated the procedure of review of the laws on the initiative of the President of Romania, do not comply with the constitutional provisions. The author analyzes in detail the objections of unconstitutionality of the Constitutional Court and shows, in the end, that the elaboration of a clear, unambiguous parliamentary procedure is necessary in order to review the laws following the request addressed by the President of Romania, which reflects the letter and the spirit of the constitutional provisions.
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The disciplinary misconduct related to the „non-compliance with the duty to abstain when the judge or the public prosecutor knows of the existence of one of the causes provided by law for his abstention, as well as the filing of repeated and unjustified applications of abstention in the same case, which has the effect of delaying the judgment”, regulated by Article 99 i) of the Law No 303/2004 on the by-law of judges and public prosecutors, was introduced by the Law No 24/2012 amending and supplementing the Law No 303/2004 on the by-law of judges and public prosecutors and the Law No 317/2004 on the Superior Council of Magistrature; it could not be found in the original version of the Law No 303/2004, nor in the Law No 92/1992 on judicial organization. The material element of the objective side of the disciplinary misconduct regulated by Article 99 i) of the Law No 303/2004 includes two distinct hypotheses: the first hypothesis has as object the non-compliance with the duty to abstain when the judge or the public prosecutor knows of the existence of one of the causes provided by law for his abstention, and the second relates to the filing of repeated and unjustified applications of abstention in the same case, which has the effect of delaying the judgment.
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In this article, the author discusses the issue of limitation of the exercise of certain rights and freedoms, as debated and regulated by the Constituent Assembly in 1991. There are analyzed in detail the theses for the draft Constitution that set out the constitutional conditions for which compliance is imperative, so that the Romanian State and the Romanian Parliament be able to make the decision of limiting some rights or freedoms of the citizens. The author gives a significant consideration to presenting the philosophy of the constitutional norm that recognizes the State’s right to limit under certain circumstances the exercise of some fundamental rights and freedoms of the Romanian citizens. It is noted that constitutional limitation of the some rights or freedoms of the citizens fully complies with the European doctrine of constitutional law and of the judicial practice of ECHR. The author analyzes in detail every case which may determine the Parliament to limit the exercise of some rights and freedoms, as well as the conditions for imposing the limitation.
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The study intends to provide an overview of a recently established public institution, namely the National Agency for the Administration of Seized Assets. Its establishment was an objective included in the National Anti-corruption Strategy for 2012–2015, approved by the Government Decision No 215/2012. The analysis will focus on aspects concerning its general status, structure, personnel and it will be made from a critical perspective on some legal provisions inclusively. In this way, we will try to draw attention to some deficiencies of the regulation, by proposing solutions which hopefully will be considered in the future.
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Within this article the author presents the main opinions which were expressed in the literature of speciality on the matter of deviated offence. This reveals that there is no unitary point of view referring to this institution, three opinions being expressed in the matter. According to a first opinion it is deemed that the deviated offence concerns an apparent plurality of offences (natural unity), whether we refer to error in personam/error in objecto or to aberratio ictus. According to a second opinion, in case of deviated offence, regardless of the form it takes, there is a real plurality of offences, in the form of concurrence of offences. There is also a third opinion that, in the case of error in personam/error in objecto, it should be noted the existence of a single offence, while in case of aberratio ictus it should be noted the concurrence of offences. The judicial practice in Romania, in order to avoid any problems that might occur, has opted to note the perpetration of a single offence, both in case of error in personam and in case of aberratio ictus.
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The article presents the evidentiary standards in case of the extended confiscation, claiming the necessity to establish the difference between the legal income and the value of assets acquired, also taking into account the expenses made by the accused and their family members, mentioning the assets or sums of money subject to extended confiscation, based on an evaluation report drawn up by an expert, by the indictment.
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In this paper the author makes an analysis of the provisions relating to „Aggravated theft” (Article 229 of the Criminal Code), from the perspective of the comparative law and of the requirements of the principle of legality. There are emphasized a series of errors produced during the drafting of the text (setting an excessively large number of circumstantial elements, their arbitrary grouping, etc.) and, at the same time, there are presented some solutions to overcome the deficiencies.
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This scientific approach debates and proposes solutions for a problem of judicial practice also reflected in the doctrine of speciality, namely whether it subsists the offence of tax evasion provided in Article 9 (1) b) or c) of the Law No 241/2005, whose active subject is a legal person, in case of absence of the accounting records of the taxpayer. The author’s certain conclusion is based on arguments related to the legal text and which the practice has embraced as a corollary, and he proposes a solution in the sense that the judicial bodies may analyse that all the constituent elements of the reference offence are present even in the absence of the documents of accounting records. Likewise, the article also deals tangentially with a possible problem related to the constitutionality of a legal phrase that is part of the constituent elements of the offence of tax evasion and criticizes the redundant and incoherent phrasing of the legislator.
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The paper aims to emphasize the consequences of the Judgment Costanzo pronounced by the Court of Justice in 1989 on the competences and powers of the public administration authorities, when these authorities are acting within the scope of application of the European Union law. From the perspective of the persons of private law directly concerned, the paper makes available to them the manner in which they can invoke the Union law – as a right opposable against the national administrative authorities – without requiring the intervention of the courts to obtain the removal from the application of the measures of national law contrary thereto.
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Within this study the author presents us some essential points of reference regarding the present situation of the legal education and its prospects for recovery. The author’s approach starts from the finding that education at all levels is in a period of crisis, despite the legal framework developed over the last years and materialized, mainly, in a new national education law. The explanations of the crisis in our legal education are multiple, the author making special reference to the unjustified proliferation of the private legal education and to the existence of a disproportionate relation between the public and private faculties of law. A particular importance is also given within this study to the teaching staff of the university education. The author pleads, in essence, for the financing of the education institutions in relation to the performances achieved, for setting some high standards of promotion of the teaching staff within the legal education and for a more exigent regulation of the incompatibilities and of the conflicts of interest. -
In this article, the author analyzes extensively the regulations contained in the new Civil Code and in the special legislation referring to the means of identification of the natural person. The author’s points of view rely on a rich speciality literature and on an extended judicial practice relevant for the identification of a person by civil means. Each attribute of identification of the person is discussed and presented in detail, so that the reader may obtain a complete information on the subjectmatters dealt with. When discussing the problems of identification of the natural person, the author also resorts to the conception of European law in the matter, reflected at the level of the Convention for the Protection of Human Rights and Fundamental Freedoms, also ratified by Romania, as well as of the ECHR case law on various aspects that are related to the private life of the persons and are relevant as attributes of their identification. Within the study, there are presented extensively the name and the domicile of the person established in the civil legislation as attributes of identification of the person.
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This article explores the concept of usucapion as envisioned by the new Civil Code of Romania. In the current regulation, the usucapion retains its status as both an originary mode of acquiring property and other real rights and a particularly important effect of possession. Unlike the former regulation, usucapion is now applicable not only in real estate matters, but also to moveable goods. With this new regulation, the lawmaker also had in mind the land registry system, as established by Law No 7/1996. In this regard, the provisions applicable to Transylvania, Banat and Bucovina in respect to the distinction between the two forms of real estate usucapion, namely tabular and extra-tabular, are extended for the entire country, with some changes. Therefore, our study sets forth a novel perspective on this subject and at the same time aims to present its findings in a concise, albeit exhaustive manner.
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This paper is mainly a semantic analysis of the definition of the offence of child pornography, included in Article 374 of the Criminal Code. It emphasizes the merits and the shortcomings of the current definition, as well as some solutions intended to remedy this definition.
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The anticipated legal capacity of the minor represents, together with the situation of the married minor, one of the exceptions of acquiring full legal capacity at the age of 18, expressly provided in Article 40 of the new Civil Code. Thus, for acquiring the „emancipation”, the minor can address the law court himself, by way of the non-contentious procedure, and with regard to the „reasonable grounds”, the legislator has not made an enumeration or an exemplification thereof, these remaining at the discretion of the guardianship courts. Given the implications which the measure of emancipation of the minor could have on himself and on others, this must be seen as an exceptional one, and although there is still no case law on the application of Article 40 of the Civil Code, de lege ferenda, the possibility to revert to the recognition of the anticipated legal capacity by the guardianship court would be, to the same extent, an appropriate measure of the higher interest of the minor.
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This study aims to identify the arguments for which, in the current legislative context, it is not admissible to order the sending of the case for retrial by the judgment pronounced on the application for annulment. The application for annulment, as a legal remedy, is regulated within the procedure of payment order.
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The article analyzes the material jurisdiction to settle the action for liability of the mayor for the prejudice caused to the state budget in the exercise of his mandate by the deficient fulfilment of the duties devolving on him, a prejudice established by the Court of Auditors by its act of control. In the absence of a derogatory regulation concerning jurisdiction, such an action, being governed by the rules and principles of the tort civil liability regulated by Article 1349 of the Civil Code, falls under the material jurisdiction of the court or of the tribunal, depending on the value of the object of the dispute (of the quantum of the damage requested to be repaired), according to Article 95 point 1 in relation to Article 94 point 1 k) of the Civil Procedure Code.
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Constitutional case law has got an important influence over the normative regulations and the legal system in general, due to the multitude of ways in which the Constitutional Court can intervene in order to modulate and harmonize legal provisions and the authorities’ actions with the rules and principles enshrined in the Basic Law. The risk of sanctioning the disregarding the constitutional exigencies, either in terms of formal conditions or in what concerns the fund rules, is a factor of accountability of the legislature. Therefore, the role the constitutional review plays in increasing the quality of laws and its positive effects on the lawmaking process should reinforce the importance of the Constitutional Court in the institutional state’s architecture.
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In the practice it was questioned the possibility of the public prosecutor from a public prosecutor’s office higher in hierarchy to take over cases from a public prosecutor’s office lower in hierarchy where the criminal prosecution has ended, following that the public prosecutor from the public prosecutor’s office higher in hierarchy settles the case by indictment. In an opinion this procedure has been appreciated as being fair, in another opinion it has been appreciated that there have been violated the rights of the defendant to a fair trial.
