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The new Civil Procedure Code, under the impulse of the case law of the European Court of Human Rights, has established for the first time, in the Romanian law, a procedural means intended to be an effective remedy for unjustified tendencies to delay trials: the contestation regarding the delay of the trial. The present approach was occasioned by a recent decision of unconstitutionality regarding the application of the provisions of Article 524 (3) of the Civil Procedure Code. In the introduction of this study, the author makes a general delimitation of the contestation by other procedural means, stating that it can be qualified neither as means of appeal, nor as a civil action or as a special procedure. The author emphasizes the contestation’s nature of procedural incident and of means to remove any obstruction in the settlement of civil cases in an optimal and predictable time limit. The control of constitutionality carried out by the Court concerns a very concrete aspect of the competence to settle the contestation. Through the analyzed decision, the court of constitutional control has appreciated that the settlement of the contestation by the panel notified with the settlement of the main action is likely to affect the objective impartiality of the court. In the present approach, the author considers such an action of the court of constitutional control as being judicious, but expresses reservations regarding the solution of attributing the competence to settle the contestation to the higher court. In justifying this point of view, the author notes also the existence of other similar procedural means the settlement of which is given, however, in the competence of a panel of the court empowered to judge the main action as well. On the other hand, the settlement of the contestation by the superior court is not likely to provide celerity in its settlement. -
An attack on a moral right must attain a certain level of seriousness in order to attract the application of a sanction. When the exercise of a moral right, freedom of expression especially, interfere with the exercise of some other moral rights, in order to determine if the right was exercised with intention to harm or excessive and unreasonable, a fair balance exercise between two values which may come into conflict must be carried out under the proportionality test: if there is a public or private interest to justify the attain to the moral right of another person. In these cases, harmful events can occur even without author guilt. The application of national provisions which protects specific moral rights should not be used solely to determine whether or not there is a violation of the rights of personality, to determine whether or not the conditions of general tort law are fulfilled. The new national provisions can be useful to determine the proportionality of the sanction, and even for establishing non-material remedies when the specific conditions of general tort law are not fulfilled. There is a relationship of complementarity, maybe even subsidiarity between general tort law and the specific remedies of civil moral rights stipulated in the Civil Code. Conceptualizing moral rights regime by enactment of statutory moral rights as „civil subjective rights” with specific remedies aims to achieve a better moral rights protection. Essentially general tort law does not deny specific protection concided by personality moral rights.
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The present study starts from the question whether a reform of the judicial system is necessary in Romania, considering also the fact that the current regulation was adopted in 2004, a part of it having its source in the Law No 92/1992 for the judicial organization. The author considers that the change of the new procedural legislation has led to some normative inconsistencies and to an overcrowding of the courts, especially of the supreme court. The situation became critical and the supreme court was forced to promote an interpretation likely to abandon the original conception of the new Code, namely that according to which it is a common law court in matters of review. The Law No 310/2018 amending the Law No 134/2010 on the Civil Procedure Code, as well as for the amendment of other normative acts has enshrined this new approach of the supreme court, which provoked vehement criticism from some authors.
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In the present article, the author analyzes twenty-four judgments of the European Court of Human Rights pronounced in the cases regarding the Revolution of 1989, by which it was established that Romania violated, mainly, the procedural side of Article 2 (right to life) of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms. The author also identifies the advantages and disadvantages of the procedure by which the Committee of Ministers of the Council of Europe supervises the enforcement by Romania of those judgments. Finally, the article aims to assess the impact that the judgements of the European Court of Human Rights have had in recent years on the conduct of internal investigations, i.e. the so-called „File of the Revolution”.
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The study addresses issues specific to the object of probation in appeal and emphasizes that, naturally, the object of the probation in appeal specializes as a result of the concrete manner in which there will operate the devolution determined by the holder of the legal remedy and the reasons on which it is based. At the same time, it is shown that formulating an request for evidence with a clear and concrete indication of the evidentiary thesis covered by each requested evidence is very important because only in this way it can be really made an assessment on the usefulness and on the relevance of that evidence. The author also emphasizes another reason why the indication of the evidentiary thesis is important, meaning that in its absence or in the case of indicating some generic theses the assessment on the legality of the evidence can be impeded and it is analyzed the situation of being requested to be heard as witnesses persons that are under the incidence of some legal norms that require them to maintain professional secrecy, such as magistrates or lawyers. All these arguments lead to the conclusion that a request for evidence made in appeal that hasn’t got concrete evidentiary theses indicated regarding each piece of evidence requested does not allow the assessment on the usefulness of the evidence by reference to the specialization of the object of probation at this phase of the criminal trial and, consequently, it should be dismissed by the court invested with the examination of the case.
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An in-depth analysis of the mechanisms by which the recipients of the legal norm end up evading the payment of the tax obligations and, subsequently, giving an appearance of legality to the illegally obtained amounts, can only be beneficial for an overall understanding of the typical elements of those two offences (tax evasion and money laundering). Without a tradition in our criminal law, incriminated for only two decades, the offence of money laundering has surprisingly gathered around it a rich case law, which is the subject of numerous criminal cases. At the same time, the analysis of the outlined case law has revealed different approaches and solutions from the courts on some important aspects of the offence of money laundering and their clarification is all the more necessary as we are talking precisely about its typicality elements. Whereas the offence of money laundering is often concurrent with the offence of tax evasion, it is necessary to analyze their points of interference, both at the level of their objective side and from the perspective of reparation of the damage.
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After a summary examination of the regulations and of the doctrine regarding the institution of civil nullities, the author illustrates the uncertainties produced by some special norms that establish absolute nullities for the violation of some imperative norms of protection for some categories delimited by subjects; it is concluded – starting from the principles – and with exemplification of jurisprudence – that such express nullities produce only some effects of absolute nullity and that the legal regime of absolute nullities does not always apply, in its entirety, as a whole. The presented legal construction offers the opportunity to observe the acute need for prejudicial procedures at the disposal of those who have to make decisions for the application of rules that produce legal uncertainty.
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În cele ce urmează, vom comenta două hotărâri ale Curții de Justiție a Uniunii Europene, ambele pronunțate în materia dreptului la liberă circulație și, respectiv, a securității sociale, în cadrul procedurii chestiunii preliminare.
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During the state of emergency both some press articles and the official communiques of the prosecutor’s offices mentioned the criminal investigation in the case of persons who, being confirmed as infected with SARS-CoV-2, refused to be hospitalized. The present study does not aim to provide a classic analysis of the crime of thwarting disease control, but is limited to trying to find an answer to the question of whether it is possible to retain this criminal offence in the case of infected persons who refuse hospitalization. As such, this paper discusses the current Romanian legislation and concludes that, having regard to both the provisions of the Protocol for the treatment of SARS-CoV-2 virus infection and the systematic interpretation of the legal framework, since the Minister of Health enacted only measures to prevent and manage the emergency generated by the pandemic, as well as the obligation to diagnose the symptomatic persons, the measure of hospitalization cannot result exclusively from the unilateral will of the doctor, in reality the will of the latter playing no role, but must derive from the law in order to impose itself on both the patient and the doctor. Therefore it cannot be retained the crime of thwarting disease control in the case of infected persons who refused to be hospitalized.
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This study examines the following issues: the legal nature of the survivor’s pension, the possibility of obtaining the survivor’s pension by a person, if his legal provider was also the holder of a survivor’s pension, how to calculate the survivor’s pension in case it is established, having as legal reference another survivor’s pension, the possibility of applying the correction index when establishing the amount of the survivor’s pension. The beginning of a relatively detailed legal analysis, in connection with these aspects presents a relevant degree of novelty for the Romanian legal literature, as neither the doctrine, nor the case law paid due attention to these problems, of indisputable theoretical interest and real practical utility.
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Potrivit prevederilor art. 60 alin. (1) lit. c) din Codul muncii și art. 21 alin. (1) lit. a) din Ordonanța de urgență a Guvernului nr. 96/2003, interdicția temporară de concediere a salariatei gravide se aplică numai în situația în care angajatorul avea cunoștință la data emiterii deciziei de concediere despre starea de graviditate a salariatei concediate. Deși art. 272 din Codul muncii prevede că sarcina probei în litigiile de muncă revine angajatorului, dovada faptului pozitiv al informării prealabile cade în sarcina salariatei gravide care contestă faptul negativ invocat de angajator că nu a luat cunoștință de starea de graviditate anterior concedierii.
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The following study has as research and reflection theme the influence of force majeure on labour relations, determined, in particular, by the legal norms specially adopted in the context of the existence of the pandemic caused by the spread of the SARS-COV-2 coronavirus. There are defined the force majeure, and its specificity is presented, taking into account the regulation of the Civil Code [Article 1351 (2)], as well as relevant doctrinal theories. Next, what is the essence of this stage, there are presented and analyzed the consequences of force majeure, especially consisting of the afore-mentioned pandemic, namely with regard to: forced labour, employment in public institutions and authorities, duration of labour relation, individualized work schedules and overtime work, change of place and type of work, suspension of labour relations, notice periods, patrimonial liability, collective labour agreements and labour disputes. The study ends with the conclusions on the analyzed problems.
