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În cazul în care asigurătorul nu-și îndeplinește obligația de a preciza motivele refuzului de despăgubire, atunci datorează penalități de întârziere de la data expirării termenului de 30 de zile, care începe să curgă de la data solicitării de acordare a despăgubirilor formulate de persoana prejudiciată. (Curtea de Apel Pitești, Secția a II-a civ., Decizia nr. 498 din 17 mai 2021) -
The study examines the possibility of bringing into a limited liability company as a social contribution a good subject to a conventional right of pre-emption. The right of pre-emption is linked – by its nature, as well as by the regulation of the Civil Code – to the contract of sale and gives a preference – at an equal price – to a certain buyer, designated by law or by contract. Failure to comply with the pre-emption cancels the contract made with the third party and the pre-emptor becomes the acquirer if he makes the price available to the seller. The bona fide third party is guaranteed for eviction by the seller. The contribution in a limited liability company does not make a sale although it produces a transfer of ownership from the contributing partner to the company, because the partner does not receive a price but a participation in the company where the contribution is made. Therefore, the contribution of a good affected by a right of pre-emption cannot be refused to the receiving company by the Trade Register Office, on the ground that against it (the company) – acquiring third party – a preference for acquisition can be invoked by the conventional pre-emptor; this, even when the right of pre-emption is accepted against an offer of alienation.
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After a summary examination of the mechanisms that develop the unilateral and conventional resolution, the author finds that the specific formalism established by the Civil Code for achieving the objectives of the pacts agreed by the parties is – in some situations – difficult to fulfil, in the context in which the partners do not know or cannot rigorously follow the steps required by the delay procedure. The uncertainties that the mechanism can produce in special conditions are observed and, then, practical solutions are suggested, starting from the premise – generally accepted – that the commission pact is itself a subsequent and accessory convention to the fundamental contract.
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The study begins with defining the pre-contractual period and with revealing its importance in the process of forming the contracts by free negotiations or, as the case may be, by conventionally organized negotiations. The deontology of negotiations for the formation of contracts is also defined. It follows from this definition that, mainly, the content of the deontology of free pre-contractual negotiations is made up of the obligations with value of limits of the freedom to negotiate. These obligations or limits are of two types: some of them are legal, being expressly provided by law, by imperative norms or, as the case may be, by dispositive norms, and others implicit. At the core of these obligations is the mandatory legal obligation of the negotiating partners to comply with the exigencies of good faith. Good faith is a proteiform concept or notion, a standard with the value of a general principle, flexible and open, which makes it possible to adapt it to the concrete circumstances and conditions of the formation and execution of each contract. Thus, in the matter of concluding contracts, good faith governs any pre-contractual negotiations, whether they are free or are conventionally organized. Moreover, this obligation is expressly, clearly and imperatively established in the texts of Article 1183 of the Civil Code, being an application of the general principle of good faith in contractual matters, established with special force in Article 1170 of the Civil Code, corroborated with Article 14 of the Civil Code, which concerns the exercise of any right and the execution of any obligation. Being a complex notion, a concept with a proteiform structure and flexible in its content, good faith is the source of the origin and of the existence of the other rules and obligations that make up the content of the deontology of free negotiations for the progressive formation of contracts. From among these obligations there are analyzed the following: the obligation of pre-contractual information, the obligation of confidentiality, the obligation of counselling, the obligation of prudence or abnegation, the obligation of exclusivity, the obligation of coherence and the obligation of cooperation. The author tries to argue that some of these obligations, especially the implicit ones, have as a foundation and source, in addition to the general obligation of good faith, also the principle of contractual solidarism.
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This research, analyzing in detail the decisive historical moments for the institution of the notary public, emphasizes the importance of preventing the legal disputes. The authors assume the preference for avoiding a legal dispute as compared to its settlement, keeping and declaring publicly the admiration for the professionals who assist or represent the litigant on the daring and difficult road to „justice”. Briefly passing the medieval period of the presence of the notary public in Transylvania, emphasizing the importance of the papal notary or of the prince’s chancelleries, insisting on the period of formation of Greater Romania and then of the legislative reform imposed after the Great Union, the article identifies the acts and draft normative acts in this matter, which emphasize the usefulness of the profession, the superior professional training of the notary public and the trust that the citizen or the state, regardless of the arrangement, had and still has in the professional notary. The entire research emphasizes new documents, draft normative acts unknown to the general public and it finally defines conclusions, which demonstrate both the permanence of the profession, the role of justice of the peace of the notary public, and his consistent contribution to achieving the „preventive justice”.
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Cross-border private life is under the rule of legislative changes occurred in the European law and in the national private international law. The property regimes of the international couples benefit from parallel regulations – the Regulation „matrimonial regimes” and the Regulation „registered partnerships”, for the states participating in enhanced judicial cooperation, the national law respectively, for the other Member States. Although they have different sources (the marriage, the registered partnership), the matrimonial regime and the partnership regime have multiple areas of convergence (the role of the will of the parties in determining the law of the patrimonial regime and in designating the competent court of law, the objective location of regimes, the most connecting factors). At the same time, the elements that differentiate the property regime of the spouses and of the partners configurate the specifics of the couples’ unions and the instruments of achieving the predictability and security of the civil circuit with an element of extraneity.
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Enforcement in kind of the obligation to do resulting from a synallagmatic promise to contract cannot be enforced in kind, a situation which determined the legislator to identify a substitute means to replace the actual enforcement and to produce the desired effects in the patrimony of the contracting parties. The present study aims to analyze the substitute remedy of the judgment replacing the contract from the perspective of the local judge, who is facing in the process of solving such requests with a series of specific procedural and substantial impediments. Aspects such as the legal nature of the obligation to enforce, the prescription of the substantive right to action, the referral to the arbitral tribunal, the legal nature of the action filed, the modality of designing the operative part of the judgment and others similar are key points of the study, and their analysis tries to determine such an understanding from the courts of law of this specific and special mechanism among the contractual remedies. -
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Potrivit art. 52 alin. (1) C.pr.pen., instanța penală este competentă să judece orice chestiune prealabilă soluționării cauzei, chiar dacă prin natura ei acea chestiune este de competența altei instanțe, cu excepția situațiilor în care competența de soluționare nu aparține organelor judiciare, iar conform alin. (2) al aceluiași articol, chestiunea prealabilă se judecă de către instanța penală, potrivit regulilor și mijloacelor de probă privitoare la materia căreia îi aparține acea chestiune. Conform alineatului (3) al art. 52 C.pr.pen., hotărârile definitive ale altor instanțe decât cele penale asupra unei chestiuni prealabile în procesul penal au autoritate de lucru judecat în fața instanței penale (cu notă aprobativă).
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The aim of this study is to point out the way in which transnational spaces exert their influences on the international legal order and the national legal ones. Theorizing transnational law opens the way of such demarche. Therefore, the overview of some schools of transnational law offers the opportunity for understanding the link between transnational spaces, transnational legal orders and transnational law. The transnational spaces "Mitsubishi" and "FIFA" evolve in transnational legal orders; the latter legal orders inspire the scholars to theorize actively the transnational law itself. Such theorizing may help us to be conceptually equipped in front of future transnational spaces. -
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In this study the author analyzes, from a double theoretical perspective – legal and politological –, the option of the constituent legislators from 1990–1991 for the semi-presidential republic, as a form of separation and balancing of the three powers in the state. Based on a relevant bibliography and on the parliamentary debates within the Constitutional Commission for the drafting of the Constitution and of the Constituent Assembly, the author submits to scientific reflection not only the points of view and arguments raised for discussion in the Constituent Assembly, but also the spirit of the constituent legislator referring to the type of political regime to be enshrined and defended by constitutional norm. There are presented, from the perspective of the constituent legislators, the positive and negative valences of the semi-presidential political regime. After many debates, the Constituent Assembly opted for the semi-presidential republic as a form of government after the overthrow of the old regime in December 1989. The author states that the legislators opted for a semi-presidential model of functioning and balancing powers which should preserve the role and the equal weight of the governing public authorities and which was, in its distinctive features, „very close to the classical parliamentary regime”. What the fathers of the 1991 Constitution wished to avoid – and this is clear from the parliamentary debates in the Constituent Assembly – was the institutionalization of some mechanisms and tools for exercising and balancing powers, which would allow in the future the President of the Republic to prevail in the actual political game, by subjecting the other public authorities. Therefore, the Constituent Assembly of 1990–1991 enshrined the institution of the President of Romania as a mediating factor in the governing mechanism, as well as in the conflicts existing in society, and not as a decision-making authority for governing the country. The author points out that, in the three decades of semi-presidentialism, the powers assumed in the governing process by the President of the Republic have exceeded sometimes the constitutional framework prescribed by the Basic Law, which has fuelled and is still fuelling various proposals to correct the current constitutional framework.
