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The article deals with the issue of joinder of executional files, making reference to the meaning of the syntagm „expenses incurred by the time of joinder”, to the possibility of reducing the court executor’s fee within this procedure, to the manner and to the time limit for contesting the interlocutory judgment of the court executor. -
The direct action in the guarantee for hidden vices is still a new subject in the legal doctrine and especially in the Romanian judicial practice. At present, judicial practice has not committed such an action, although the issue has been debated, both in the doctrine of the old Civil Code, and especially in the doctrine of the new Civil Code. What is even more surprising is that the legislator understood to directly regulate such direct action in the case of the guarantee for eviction, without regulating it in the case of the cover for hidden vices. If technical and legal issues seem relatively simple in the case of direct action for hidden vices against a previous vendor or first seller, things get complicated when it comes to direct action in hidden vices against the contractor. The present study aims to identify the legal nature and the basis of the direct action in the guarantee for hidden vices against the contractor, thus establishing its admissibility criteria. By the arguments that we will render, we hope to contribute to the shaping of some defining elements of direct action that will facilitate its practical application. -
The author considers that article 288 paragraph (1) of the National Education Law no. 1/2011 (text according to which the didactic activities exceeding a didactic workload are remunerated for each hour worked, and for the tenured didactic staff – in the higher education system – the maximum number of paid hours in the regime of payment per hour, no matter the educational establishment where the respective hours are worked, cannot exceed the minimum didactic workload) breaches the provisions of the Constitution of Romania, even though the Constitutional Court adjudicated otherwise under the decision no. 1090/2011. The basic argument forwarded by the author is that, in case of certain similar regulations contained in the contents of certain previous similar legislative instruments (Law no. 88/1993 and Law no. 128/1997), the same Constitutional Court, according to two decisions (no. 114/1994 and no. 30/1998) ruled otherwise than it had ruled in 2011 (that is, it stated that those decisions were unconstitutional). -
This paper deals with the problems of establishing the garnishment when the debtor is the Romanian State itself. The analysis is carried out in the light of the provisions of Article 5 (1) of the Government Emergency Ordinance No 146/2002, republished. At the same time, it is also analyzed the lack of incidence of the provisions of the Government Ordinance No 22/2002 in case of this debtor. -
In this article the author defines the judicial security and analyzes its role within the national security system, but also the relations between the judiciary system and the national security system. -
The study provided by the author is devoted to some general approaches on the judicial and procedural systems in some countries in Latin America and in the Caribbean Sea area. The first part of this approach is dedicated to an introduction of the general reforms in the geographical area of reference and to the concerns of the governments in the area regarding the implementation of some reforms intended to make justice more efficient and more accessible to the litigants. The author notes that also in Latin America and in the countries of the Caribbean area the real problems of justice are not essentially different from those on other continents, including from the European area: the postponement of trials, the overcrowding of the courts of law and a modest funding of the judicial system. The political influences on justice in some countries in Latin America and the Caribbean area have led, in this geographical area as well, to a significant decrease of the citizens’ trust in the judicial system. The organization of the judicial systems from the countries of reference offers us a complex legal geography, in relation to the way of organization from the European countries, since in many states in the area the Roman-German law system coexists with that of common law, the latter’s greatest influence being found in the field of public law. The last part of the study presents us some of the most significant approaches at the level of the strictly procedural institutions. And the reforms undertaken in the last three decades in procedural matters cannot ignore the role and influence exerted by the Preliminary Draft Civil Procedure Code for Latin America. That is why the author presented, in a synthetic manner, the principles that were the basis of this important Latin American project and which had a positive impact on some of the regulations contained in the new Civil Procedure Codes adopted in recent years in the specified geographical area. The author’s investigation is not only of doctrinal interest, viewed from the point of view of a comparative research, but also a practical one in an era in which the effervescence of globalization forces us to new reflections on the organization of an efficient, fast justice that leads to prompt enforcement of the judicial decisions. Some of the procedural reforms in Latin America and in the Caribbean area can also be benchmarks for the reforms of justice in other countries, including in the European Union area. And, from among these, the most significant concern undoubtedly the acceleration of trials, the rationalization of the means of appeal, especially the appeal in cassation, the reduction of special procedures and the settlement of some cases, especially of low value, in a single hearing. -
The stages of the civil trial are: (i) the stage of referral to the court of law (written or initiating the civil trial), (ii) the stage of inquiry of the trial, (iii) the stage of debate on the merits of the trial, (iv) the stage of deliberation and (v) the stage of delivery. The accomplishment of the act of justice in civil matters is materialized through court sittings (which may be public, or in which only the parties participate, or not public, in the cases provided by law) and internal administrative stages carried out by the panel of judges (such as the checking and regularisation of the application). Publicity is a fundamental principle of the civil trial stated by the provisions of Article 17 of the Civil Procedure Code and by Article 12 of the Law No 304/2004, republished. The failure to ensure the publicity of the court sitting brings about the sanction of absolute nullity not conditioned by the existence of an injury under Article 174 (2) by reference to Article 176 point 5 of the Civil Procedure Code. The delivery of the judgment shall usually take place in public sitting, according to Article 402 of the Civil Procedure Code, or, as an exception, by making the solution available to the parties through the mediation of the registry office, pursuant to Article 396 (2) of the same Code, in the assumption that the delivery was postponed (premise condition) for justified reasons and the chairman of the panel has indicated expressis verbis this modality of putting the solution at the disposal of the parties. The delivery of the judgment, as the last processual stage, according to the Civil Procedure Code, can not take place otherwise than by means of a public court sitting, according to the principle of publicity, to which the chairman or a member of the panel of judges read the minutes, also indicating the means of appeal which can be exercised. The fact that the parties understand or not to make use of their right to appear in court (as in the case of other processual stages) does not in any way affect the obligation of the panel of judges to comply with the express provisions of the law in respect of the processual stage of delivery, since there is no such distinction in the law, and ubi lex non distinguit nec non distinguere debemus. In addition, the completion of this final stage of the civil trial is necessary for the parties to make use of their right to formulate orally the means of appeal provided by law, according to Article 126 of the Internal rules of the courts of law of 2015, concluding in this respect a minutes signed by the president of the panel and by the registrar of the sitting.
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The neutral power, i.e. a power that is situated outside the three powers derived from the organisation of the state on the basis of the principle of separation of powers, was conceived and institutionalised in various ways. One of them transforms the Head of State into a power that distances itself from political games and the separation of powers. The Head of State plays the role of balancing power and that of mediator between legislative, executive and jurisdictional powers and between state and society. The following article examines the role of the Head of State as neutral power in the constitutional history of Romania and in the 1991 Constitution.
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The concept of material error is evoked in two texts of the Civil Procedure Code, respectively in Article 442 and in Article 503 (2) point 2. For the purposes of Article 442 of the Civil Procedure Code, according to the opinion unanimously accepted by the doctrine and by the case law, material error is the mistake slipped in the contents of the judgment, at the time of drafting, which does not affect the foundation or the legality of the solution pronounced by the court. The correction of such material errors is made according to a special procedure regulated by law, which has as its finality the correction of such errors slipped, at the time of drafting, within the minutes, the preambles, the recitals, or even within the operative part of a judgment, which may be a sentence, a decision or a minutes of the session. This category of material errors includes those related to: the name, quality and oral submissions of the parties, those of calculation, etc. The legal meaning of the concept of material error, within the meaning of Article 503 (2) point 2 of the Civil Procedure Code, is sensitively different from that attributed to this concept by Article 442 of the Civil Procedure Code. From this perspective, the material error is any essential and involuntary omission in relation to the situation existing in the file at the time when the court of recourse delivers the judgment. In other terms, the obvious material error concerns formal aspects of the recourse which had as consequence the wrongful settlement of this legal remedy. It is about that mistake made by the court by confusing some important elements or some material data and which determines the solution delivered. The doctrine defines the judicial error as the error of judgment committed by judges or by prosecutors in the course of conducting a judicial procedure. This error may be of law or of fact and in any system of law such an error stands as basis for exercising of the ordinary or extraordinary legal remedies. -
One of the extraordinary legal remedies regulated by the Civil Procedure Code is the contestation for annulment. According to Article 503 (2) point 2 and (3) of the Civil Procedure Code, the judgments of the courts of recourse, as well as those of the courts of appeal, may be challenged with a contestation for annulment where the settlement given to that legal remedy is the result of a material error. Besides the phrase „material error”, used in other texts as well, the phrase „material mistake” or the phrase „material mistakes” can also be found in the Code. Thus we appreciate that the legislator was not consistent with the terminology mentioned. It uses the very same phrase, in different contexts and with different meanings, which creates confusions in the interpretation and application of the legal texts. For the lexical and semantic consideration of the phrase „material error”, included in Article 503 (2) point 2 of the Civil Procedure Code, and of the methods of interpretation of the legal rules, it can be concluded that this phrase can not be reduced only to certain procedural errors, but it could also enable the correction of the errors of judgment.
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This study aims to analyse the meaning of the term „reasonable grounds” enshrined in paragraph (2) of Article 11 of Law No 554/2004 on Administrative Proceedings. Neither the relevant framework law, nor any other regulation defines this concept, which creates problems in practice. The tendency in case law is to consider that „reasonable grounds” must be understood as a situation beyond the person’s control, insurmountable, in case of force majeure or fortuitous event. The present study seeks to correct this view and to promote the interpretation that the notion can be understood both in the sense mentioned above and in one where the parties use administrative methods to prevent a dispute from arising.
