-
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. -
Celebrating the Day of Justice is a good opportunity for the theoreticians and the practitioners of law to subject to reflection topics of a particular interest, legislative and jurisprudential solutions, or de lege ferenda aspects. Such an event also enables the evaluation of the institutional relations between the authorities that have a well-defined constitutional role in exercising the judicial authority, as well as of the contribution of the different legal professions to the general and complex law enforcement process. From this perspective, the author emphasizes not only the importance of the celebration reunion of the representatives of the main institutions and professional organizations of jurists, but also the requirement for such an event to be marked by scientific manifestations, in which the participants to make known their own researches in the field, to debate in a spirit of fellowship and solidarity issues facing justice as a public service, the statute of magistrates, as well as of the other legal professions. In a way, every man of law is responsible for the triumph of the idea of justice in his profession.
-
Foarte mulți autori moderni întrebuințează în lucrările lor expresia jus ad rem pentru a desemna dreptul de creanță, opunându-l astfel dreptului real jus in re. Această expresie a avut o influență considerabilă în evoluarea instituțiilor juridice. Scopul nostru este de a examina aici cum au fost aduși autorii să numească dreptul de creanță jus ad rem, precum și cele două mai importante consecințe ale acestui fel de a concepe natura dreptului de creanță: dispariția obligației chirographare și transformarea efectelor vânzărei. -
Se știe că, în materie represivă, prescripția produce un îndoit efect, acel de a stinge acțiunea publică și cea civilă, care izvorăște dintr’o crimă, delict sau contravenție polițienească (art. 593–595 C.pr.pen.), și acel de a stinge pedeapsa pronunțată de tribunalele represive art. (596–598 C.pr.pen.). Pentru a se justifica aceste dispoziții s’au dat mai multe motive, asupra căror vom reveni mai târziu tot în coloanele acestui ziar, când vom expune considerațiile generale asupra prescripției penale. Destul este să spunem deocamdată că motivul cel mai puternic și poate singurul motiv ce se poate invoca în specie este că societatea nu are nici un interes a pedepsi o infracțiune a cărei amintire este ștearsă. Legea penală nu vorbește de suspendarea prescripției, ci numai de întreruperea ei. Actele întreruptive consistă, când este vorba de prescrierea acțiunei publice, în acte de instrucțiune și de urmărire (art. 593 C.pr.pen.). Vom vederea îndată care sunt actele întreruptive de prescripție când este vorba de prescrierea executărei pedepselor.
-
This paper presents a point of view regarding the correlated interpretation of both articles 53 from the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter, ECHR) and the Charter of Fundamental Rights of the European Union (hereinafter, the Charter) in the context of EU accession to ECHR. Opinion 2/13 of the EU Court of Justice from 18 December 2014 establishes that there is no provision in the Commission’s project agreement for EU accession to ECHR that envisages to ensure a coordination between both articles 53, allowing Member States to provide for higher standards on human rights protection than ECHR or the Charter, which could entail the undermining of the primacy, unity and effectiveness of EU law.
-
The attributions that confer substance to the activity of the prosecutor before the jurisdictional body are the participation in the trial of the criminal and civil cases, the exercise of the means of appeal against the judgments, the examination of the cases of non-uniform application of the law and the analysis of the cases in which the courts have delivered final judgments of acquittal, return or referral to the prosecutor. In criminal matters, the prosecutor mandatorily participates in the trial, under the sanction of absolute nullity, in the cases where the law expressly provides for his participation, and optionally, in cases other than those in which the law establishes the obligativity of participation. In civil matters, the rule is that the prosecutor takes part in the trial optionally, when he considers it necessary to defend the rule of law, the rights and interests of citizens. By way of exception, the prosecutor mandatorily participates in the trial of the civil cases when the obligativity is expressly provided. In criminal matters, the law opens for the prosecutor the path to exercise all means of appeal, ordinary (appeal, contestation) or extraordinary (recourse in cassation, contestation for annulment, revision), against various judgments. In civil matters, the prosecutor may exercise the means of appeal when he deems it is necessary to protect the rights and legitimate interests of minors, of the persons placed under interdiction and of the missing persons, or when he has participated in the trial of the case.
-
The offence of favouring of the perpetrator has evolved along the successive regulations in terms of area of incrimination, both with reference to the criminal activities incriminated, but also with reference to the favoured persons. According to the new provisions of criminal law, it is incriminated under this name the favouring of any person who has committed a deed provided by the criminal law, which does not necessarily have to meet the requirements in order to be considered an offence, and it is also incriminated only personal favouring, not the real one, consisting of the aid given in order to ensure the product of the offence for the perpetrator. The offence of favouring the perpetrator has an autonomous nature in relation to the offence committed by the favoured person and has a subsidiary nature in relation to other offences, the aid given to a perpetrator receiving the qualification of favouring only when other legal provisions do not incriminate special assumptions of favouring.
-
In the Draft law drawn up by the Ministry of Justice, the offence of abuse of office provided by Article 297 (1) of the Criminal Code is defined simplistically and formally, without clarity, precision and predictability. According to the Draft law, any act of breach of the law, of a Government Ordinance or of a Government Emergency Ordinance by a civil servant is considered to be an offence of abuse of office, regardless of its gravity and of its consequences, because its legal content is not circumscribed. In order for the offence of abuse of office not to be confused with the other forms of civil, disciplinary, administrative, fiscal, material or contraventional legal liability, we have introduced in its definition the condition that the deed must be committed for material interests, and the damage must cause particular serious consequences. In this way, the abuses in the interpretation and application of Article 297 (1) of the Criminal Code will be completely removed.
-
On number of occasions, the Constitutional Court is in the position to determine whether a norm is constitutional or not, referring to the provisions of Article 1 (5) of the Constitution, republished version. In order to comply with the provisions of this article, it is necessary for the law, the obedience of which is required by the very first article of the Basic Law, to be clear, precise and predictable. There are numerous decisions of the Constitutional Court which state that the law is devoid of „quality”, i.e. the law is not clear, precise and predictable. The non-compliance of these requirements results in a violation of the provisions of Article 6 (1) of the Law No 24/2000 on normative technical norms for the drafting of normative acts, republished, subsequently amended and supplemented, according to which the draft of the normative act must establish necessary, sufficient and possible rules leading to the greatest legal stability and efficiency. Thus, whenever the legislator uses notions whose legal nature is uncertain or do not integrate from the conceptual point of view into the normative system, or when the legislator resorts to the use of innovative concepts in the normative acts and does not define them in their very content, the Constitutional Court will have all the reasons to establish that the provisions of Article 1 (5) of the Constitution are violated, the text being inadequately drafted.
-
The legal epistemology justifies the interest of this study for the relations which are established between the notions of branch of law, of sub-branch of law, of legal institution, as well as their relations with the forms of legal liability which they regulate. In the problems of the dynamics of the relations between the branches of law and the forms of legal liability the rule is that every branch of the law knows or generates at least one form of legal liability. Starting with the theoretical challenge launched by Professor Antonie Iorgovan, regarding the elements that announce the appearance of a new form of legal liability within or outside a branch of law, the novelty proposed by this study consists in the approach of the inverse relation, precisely of the capacity of a new form of legal liability to generate a new branch of law, as well as its reception by a legal science of branch. The verification of the validity of the capacity of mutual cogeneration between the forms of legal liability and the branches of law will be achieved by means of the examples of the relations established between the ecological liability and the environmental law, the objective liability and the insurance law, the managerial liability and a possible managerial law on the ground of legal methodology.
-
The current Civil Procedure Code has brought some changes in respect of the evidence with the interrogatory, changes which are discussed in this study. Thus, for example, the court has the possibility to proceed to the confrontation of the parties and, in case of the interrogatory of the persons who are abroad, according to the new regulation, the condition of domicile situated abroad is no longer necessary, being sufficient for the party to be abroad for a longer period of time. I have discussed punctually the administration of the evidence with the interrogatory in the case of the natural person, in the case of the legal person, in the situation of the persons who are abroad, as well as the effects of the absence from the interrogatory or of the refusal to answer to it. Since the confession is currently regulated by the Civil Procedure Code, unlike the former regulation, when it could be found in the Civil Code of 1864, I have presented the most important aspects concerning the judicial confession.
-
This article has as object of study the issue of the marriages of convenience concluded for the sole purpose of ensuring the right of entry and of stay of a foreign citizen on the territory of Romania. In elaborating the study plan we have considered: a first introductory part which presents the normative basis relative to the legal regime of the foreigners; a section devoted to some decisions of the Romanian Constitutional Court which has been entrusted over time with analysing the concordance of the provisions regarding the legal regime of foreigners with our Fundamental Law; a point devoted to the European legislation relevant for the issue under our examination and a practical part which reveals how Romanian courts have settled cases concerning the assessment of the marriages of convenience.
