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Conform art. 4251 alin. (1) C.pr.pen., calea de atac a contestației se poate exercita numai atunci când legea o prevede expres. Cu toate că dispozițiile art. 278 C.pr.pen. care constituie sediul materiei îndreptării erorilor materiale nu prevăd posibilitatea atacării încheierii cu cale de atac separată, sunt incidente dispozițiile art. 442 și 446 C.pr.civ. prin mijlocirea art. 2 alin. (2) din același act normativ, Codul de procedură civilă, prin generala sa aplicabilitate, reprezentând dreptul comun și în materie procesual penală. Drept urmare, atâta vreme cât legea procesual penală nu interzice expres posibilitatea atacării încheierilor de îndreptare a erorilor materiale pe cale separată, se poate apela la dispozițiile legii procesual civile care reglementează această posibilitate (cu notă critică). -
Today the philosophy of law can not be conceived outside the genesis, evolutions, paradigmatic hypostases, connections with the science, the knowledge and the world, of the fundamental conceptual couple philosophy – right. In the contemporary world we are witnessing spectacular changes of paradigm, of models, from the mechanical understanding of the legal order – specific to the modern period – to law as a complexity of high organization, open to others, to totality and to meaning. This means, among other things, the inherence of the philosophical dimension of the law. Therefore, the philosophy of law shall be established as a polycentric, integrative concept connecting together the durable classic axle, namely philosophy (expressed through excellence by its exemplary paradigms) – law (also expressed by its representative paradigms), to the contemporary network of knowledge, to the global society and to the contemporary man, in a specific, critical, open manner, always evolving.
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The paper aims to achieve a general view on the contemporary legal systems. In this respect, it is analyzed the Romano-Germanic legal system, the Anglo-Saxon legal system, as well as other traditional legal systems, such as Islamic legal system or Indian legal system. In addition to the theoretical approach, elements specific to the judicial system are covered.
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In this article there are examined comparatively the time limit and the grounds for appeal provided in the current legislation and the previous legislation, as well as the regulation in force. Likewise, within this paper there have been formulated a series of critical remarks, as well as de lege ferenda proposals, which have in view the amendment of the provisions of Article 410 (1) of the Criminal Procedure Code. The paper can be useful for the academic environment, for the practitioners, as well as for the legislator.
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By the Law No 187/2012 for the implementation of the Law No 286/2009 on the Criminal Code there have been amended and supplemented some normative acts that include criminal provisions. In this context, this study examines the amendments brought by the mentioned law on the offence of unauthorized reproduction of software on computer systems, regulated by Article 1399 of the Law No 8/1996 on copyright and neighbouring rights. The author presents his personal and doctrinal points of view on the characterization of the constitutive content of the analyzed offence, as well as on the interpretation and on the application of the amending legal rules.
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In this paper the author examines the legal regime of the plea of illegality regulated by Article 4 of the Law on administrative disputes No 554/2004, as this text has been rather recently amended by Law No 76/2012 for the implementation of Law No 134/2010 on the [new] Civil Procedure Code. In this regard there are examined: the definition and the legal nature of the plea of illegality, its features, as well as the conditions of admissibility of the plea of illegality.
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Currently, under the increasingly intense and diverse interactions between countries, due to the unprecedented mobility of individuals, in space, or to the dynamics of public international law, as such, (for example, in international human rights or international criminal law) the theoretical model that governs the relationship between international law and domestic law has become a topical one. In addition, the existence of several supra-state forms of cooperation, such as the European Union, bring into question the relationship that is being established, on the one hand, between the law of those forms of cooperation and the Member States' national law and, on the other hand, between the former and general international law. In this paper I will discuss the relationship between international law and Romanian domestic law, as regulated by Romania’s organic and constitutional provisions and taking due account of Romania’s EU membership. The paper is structured in three sections corresponding to the general theoretical approaches to the matter (Section II), the legal, institutional and scholars’ approaches (Section III) and conclusions and de lege ferenda proposals; the latter will address both the content of the regulations, as well as some aspects of legislative technique (Section IV).
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In the study with the above title, the author examines specifically the problems of the current regulation of the protection of competition on the internal market of the European Union, through the control of concentrations of undertakings, in the light of the provisions included in the Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of the concentrations between undertakings.
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The pre-contractual obligation to inform is one of the ethical instruments meant to ensure the durable and effective maintenance of the contract (contractual durability principle), a requirement which has acquired a considerable development owing to its functions: preventing a possible failure as concerns the maintaining of the durability and the effectiveness of the contract and building a contractual relation based on the active presence of the contracting parties. The provision of sufficiently accurate information will lead to making a decision to conclude or not the contract in full awareness of the facts. It is designed to extend also to the phase of contract performance, allowing the parties to think more deeply about the commitments they will make. But, in the pre-contractual phase, of negotiations, the future contracting parties only begin building a durable trust, which is achieved through dialogue and collaboration and which has normally extended also to the phase of performance of the contract. The pre-contractual obligation to inform tends to engage other legal means as well in order to come to decision-making in full awareness of the facts and in order to build, at the same time, a „bond of trust” intended to extend in time. Therefore, it is obvious the need to generalize this obligation, thus strengthening the coherence of rules (principle of coherence), this being achieved both by way of extending the application of the requirement of „good faith” and by special express rules specific to each category of contracts.
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Pursuant to Article 127 (1) of the new (Romanian) Civil Procedure Code, „If a judge has the status of plaintiff in an application for which the court where he pursues his activity has jurisdiction, he shall refer the matter to one of the courts of the same level located within the district of any of the courts of appeal neighbouring the court of appeal in whose district the court where he pursues his activity has jurisdiction.” After making a general analysis of the text, the author, contrary to some opinions expressed in the doctrine, considers that, for identity of reason, the text applies accordingly, and not only if the indicated situation exists in first instance, but also if that situation exists in appeal or in recourse, and this is for: identity of reason.
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Modalitatea de dobândire a dreptului de proprietate asupra rețelei de distribuție a energiei electrice, prin edificare sau construire, pe un teren despre care reclamantul nu susține și nu dovedește că ar fi proprietatea sa, pentru a se putea prevala de accesiune și de prevederile art. 492 C.civ., nu se înscrie printre cele prevăzute de dispozițiile art. 644–649 C.civ. și nici de alte reglementări legale specifice domeniului de referință, pentru a dovedi calitatea de proprietar asupra respectivei rețele a unei persoane fizice care nu deține nici licență și nici capacitate energetică. În acest caz, pentru a putea reclama prerogativa de a-și exprima acordul la racordarea terților la rețeaua electrică, reclamantul trebuia, în lipsa oricărui titlu, să învestească instanța cu o acțiune în constatarea calității sale de proprietar asupra rețelei electrice, cu atât mai mult cu cât această calitate îi este contestată de partea adversă. (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 2476 din 27 iunie 2014) -
Prezentul comentariu este generat de o notă critică la Decizia nr. 3915/2013 a Înaltei Curți de Casație și Justiție, Secția a II-a civilă, pronunțată în Dosarul nr. 2342/111/20071, notă critică publicată pe site-ul Juridice.ro, în „Revista de note și studii juridice”, la data de 15 august 20142.
