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The author intends to make a synthesis of the main amendments brought by the legislator to the civil liability institution, by adopting the present Civil Code, also analyzing the main sources of inspiration underlying the new regulation. The chosen approach is a comparative one, the civil liability institution being analyzed both from the perspective of the Civil Code of 2009 and of the Civil Code of 1864. The study aims to emphasize that the new regulation is a codification of the doctrine and of the case-law, in a necessary attempt to adapt the Romanian legislation to the soft-law standards of the European Union in this matter, as well as to the other international regulations. -
The interdiction of the pignorative contract is a traditional solution for the Romanian law and corresponds to a real need to protect the debtor. However, this study attempts to prove that the solution is presently in disagreement with the legislative policy established by the new private normative order that encourages the diversification of the guarantee mechanisms. Presently, the function of this prohibition would rather be a theoretical one, not to affect the classical physiognomy of mortgage in the continental law system; but, in a legislative system which expressly establishes legal figures such as the sale with repurchase option or the sale with reservation of title and which seems to allow lawful transfers as a security measure, the interdiction becomes formal and it excessively complicates the situation of the participants in the legal circuit.
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The social reality governed by the labour law has known a series of mutations, caused by economic and circumstantial factors, which may have an impact on the object itself of this branch of law. This paper aims to present these amendments, as well as some theories formulated in the Romanian and foreign legal literature on the future of the labour law and of its object. It is pointed out the danger of dissolution of the labour law, following to be later configured a series of options concerning the extent of protection offered by the labour law and its relation to other branches of law.
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The new Criminal Code of Romania brings numerous novelties within the scope of incrimination in the Romanian criminal law and, as compared to the previous regulation, it provides, in the text of Article 276, the sanctioning of the deed of a person who, during ongoing judicial proceedings, makes false public statements concerning the commission, by the judge or by the criminal prosecution authorities, of an offence or a serious disciplinary misconduct related to the processing of that case, in order to influence or intimidate such authorities.
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Damages can be assessed by the court, by law or by the willful agreement of parties. This study analyzes the notion of damages, the conditions for awarding damages, as well as their assessment by the court and their legal assessment. The purpose of assessment of damages incurred by the creditor is that of reinstating the creditor to the situation in which it would have been found, if the debtor had voluntarily performed the obligations assumed by concluding the contract. Judicial assessment of damages is made by judgment and involves the judge’s examination of all the conditions for undertaking contractual liability, particularly with regard to the prejudice caused to the creditor by the debtor’s non-performance of obligations. Legal assessment of damages occurs in the cases regulated by Articles 1535 and 1536 of the new Civil Code and falls within the scope of obligations that have as object the service of granting a sum of money, to which the legislator also adds the case of obligations to do, which can be assessed in money.
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This paper approaches the theme of disuse as a modality of lapse of the subdivisions of the property right. If the property right, given its perpetuity, does not lapse by disuse, its subdivisions, which are mostly temporary, shall lapse by the failure to exercise the right. The sanction is expressly regulated by the present Civil Code in matters of usufruct and servitude and it is applicable, for identity of reason, to use and habitation. The study also examines the extent of interference of the disuse with the acquiring of the subdivided right by usucaption, as well as the consequences that it might have the legal nature of the limitation period acknowledged to the disuse period.
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Abuz în serviciu contra intereselor persoanelor. Complicitate la furt calificat. Concurs ideal. Fapta inculpatului care, aflându-se în exercițiul atribuțiilor de serviciu, cu știință, nu a îndeplinit acte pe care trebuia să le efectueze în temeiul îndatoririlor sale de serviciu, constând în aceea că nu a întocmit procesul-verbal de constatare a infracțiunii de furt calificat, nu a reținut autorul faptei și nu a sesizat organele de poliție, întrunește elementele constitutive ale infracțiunii de „abuz în serviciu contra intereselor persoanelor”, prevăzută în art. 246 C.pen. cu referire la art. 258 C.pen. -
Mediation is governed by Law No 192/2006. In criminal matters, mediation is a restorative practice designed to solve the conflict between the parties involved. For a limited number of offences a criminal mediation agreement has the effect of preventing the initiation of criminal prosecution or ending criminal proceedings. This does not mean that parties may come to an agreement on the criminal aspects of the criminal proceedings as the legislator may seem to let us to believe. The only aspect on which an agreement may be reached concerns withdrawal of a prior complaint or reconciliation of parties in case of certain offences; these are impediments distinctively regulated in the mediation agreement. As a matter of fact, the consensus between parties in criminal proceedings, contained in the mediation agreement, exceeds the limits imposed by what is usually considered as the criminal aspect and the civil aspect of those proceedings. Through their will, parties may limit themselves to an agreement only on civil claims within criminal proceedings.
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The author analyses (partly critically) provisions of Article 16, Article 17 and Article 19 of the Romanian Labour Code concerning the written form of the individual labour contract, the obligation to inform the employee on the essential clauses of the contract and the sanction for the failure to fulfil the information obligation with a view to better correlate them with Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship and with the case-law of the Court of Justice of the European Union on this matter.
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Economic offence can be defined as a deed that affects the legal regime established for carrying out economic activities. Unlike the Criminal Code of 1968, which dedicated the Title VIII of its special part to economic offences, the new Criminal Code contains only some economic offences, scattered among various titles and chapters.
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Among the means of protection of a creditor’s rights, the present Civil Code regulates the (Paulian) revocatory action within Articles 1562–1565. This civil action has been regulated also in the previous Romanian Civil Code. However, in this study the author examines exhaustively the admissibility conditions of the revocatory action in the light of the present Romanian Civil Code, which entered into force on 1 October 2011.
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Verificarea respectării normelor de competență se realizează atât de instanța învestită cu judecarea litigiului, la cererea părților sau din oficiu, cât și pe calea controlului judiciar, de către instanțele superioare învestite cu judecarea căilor de atac. În acest din urmă caz, hotărârea instanței de control judiciar prin care se statuează cu privire la competența unei instanțe de a soluționa litigiul este obligatorie, atât timp cât aceasta este irevocabilă.
