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În cazul în care prin acțiunea introductivă promitentul-cumpărător a solicitat numai restituirea avansului achitat în temeiul antecontractului de vânzare-cumpărare și dobânda legală aferentă, nesolicitând și constatarea intervenirii pactului comisoriu expres stipulat de părțile contractante cu consecința repunerii părților în situația anterioară sau rezoluțiunea judiciară a convenției, în temeiul art. 1020–1021 C.civ., este lipsit de fundament juridic demersul său, astfel cum a fost formulat, deoarece numai în caz de desființare a convenției se poate dispune obligarea părții în privința căreia angajamentul nu s-a executat la daune-interese. (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 3261 din 24 octombrie 2014) -
The offences regulated by the Law No 31/1990 on companies form a domain relatively less explored by the criminal law specialists and quasi-unexplored by the civil law specialists. In this study, the authors deal with those offences grouped within Article 272 of the above-mentioned law. These offences have a few specific elements. First, assuming there is a legal rule, the active subject is qualified, that is a person holding a certain quality of company member. Secondly, for two of the offences, the assumption of criminal rule is another rule, of the company law, to which the criminal law rule refers. By the fact that there is a situation such as the latter, but also because the assumptions of the other offences provided in Article 272 are part of the company law, first it is the duty of the civil law specialist to decode the meaning of the material rule, because a rigid application of the purely criminal vision in a field of the private law can lead to wrong conclusions, with serious consequences on the subjects of the offences. But, in order to cover the entire interpretative area, the same consideration must be given, according to the authors, to the criminal matters as well, where the role of the criminal law specialist steps in, so that the reader – either a civil law specialist or a criminal law specialist – forms a proper idea about a far too little investigated field.
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In this study, the authors have chosen to present and to analyze the criminal law institution of the conditional release because, as practitioners, more than once, they came to discover a different application thereof, a different approach of the criteria laid down by this institution and even a difference of opinions within the assessment of the opportuneness of ordering this measure by the judges of the same court, this generating an uneven practice with regard to the application of the same rule of criminal law.
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Within this article, the author makes an analysis of the main provisions of the Hague Convention of 1985 on the law applicable to trusts and on their recognition. In the context of introducing in the Romanian civil law the legal operation of fiducia, achieved by the provisions of Articles 773–791 of the Civil Code of 2009, Romania’s accession to the Hague Convention would be a natural step that the Romanian legislator should take in the near future. Although some of the provisions of the Hague Convention have been taken, tale quale, within the provisions of private international law relating to the fiducia, the accession to the Hague Convention and its introduction into the Romanian internal law, would lead to expanding the scope of practical application of the legal instrument of the fiducia itself.
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In this study, the author makes a presentation of the Romanian legislation and case-law, of the European case-law (the European Court of Human Rights), of some regulations of the European legislation, as well as of some provisions of the Constitution of France and of Belgium, all concerning the protection of human dignity and reputation of the individual.
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The author of this study, starting from the premise that both the employees of public authorities/institutions (who carry on their activity based on an individual labour contract), as well as the civil servants of these budgetary structures (who carry on their activity based on a job relation) have a legal labour relation each, comes to the conclusion that the present jurisdictional system regarding the labour conflicts (the disputes) of the two categories of personnel mentioned (the labour conflicts of the employees of the public authorities/institutions are settled by the labour jurisdiction courts, while the same type of cases, in case of civil servants, fall within the jurisdiction of administrative disputes courts) is obviously unnatural and discriminatory. This being the case, it is proposed the unification of the jurisdiction in this respect, in the sense that both for the employees of the public authorities/institutions and for the civil servants in their service, the competence to settle the labour conflicts is going to pertain to the labour jurisdiction courts.
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The Romanian Labour Code (the Law No 53/2003, republished on 18 May 2011) provides, in Article 38, that „Employees may not waive the rights recognized to them by law. Any transaction which aims at waiving the rights recognised by law for the employees or at limiting such rights shall be null.” The author starts from the premise that this legal text, which could also be found in the previous Labour Code (Law No 10/1972), should be reconsidered, however, in the light of the social order of today, of the principles and of the requirements of the market economy and of the dynamics of the labour relations and of the labour market. Considering the above, the author formulates, in accordance with the Romanian labour law doctrine as well, a flexible interpretation of Article 38 of the Labour Code, also taking into account a series of texts of the new Romanian Civil Code, which entered into force on 1 October 2011, by rallying, at the same time, to a number of de lege ferenda proposals elaborated in the labour law doctrine over the last years.
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In this study, the author analyzes the provisions of the Romanian Civil Code (the Law No 287/2009) referring to the matrimonial convention (Articles 329–338 and Articles 366–369). Therefore, there are examined the provisions on: the notion; the principles of the matrimonial convention; the legal characters; the conclusion of the convention – the conditions on the substance and the form of the convention; the date of conclusion and the date from which it produces effects; the caducity, the simulation and the nullity of the matrimonial convention; the object of the convention; the publicity of the convention and its amendment.
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As subject of public international law, the European Union is committed not only to observe, but also to develop the public international law and, within this framework, it is established the principle of equality between the Member States, within the limits of the treaties of the Union. The institutional structure of this intergovernmental international organization and the procedure of adoption of the legal acts reflect a nuanced equality between the Member States, which however emphasizes the specificity of the Union. „United in diversity”, a motto to which, according to the Declaration No 52 to the Treaty of Lisbon, not all Member States have subscribed, the European Union promotes an enhanced integration and a political cooperation in which the States act in accordance with the Treaties and, in certain cases, for the purpose of supporting the national interest. The transfer of competences from the States to the Union was achieved gradually, with the economic and political evolution at national and international level, pursuant to the state sovereignty. Equality between states within the European Union is a principle whose application in the current European and international context might reflect a new approach of the European integration and positioning of the Member States within the Union. -
In a more and more obvious „global legal space”, the legal culture – understood as a set of knowledge, creations and forms of expression of law – undergoes fundamental changes and major developments. By rejecting hegemony in favour of hybridization, the realistic perspective involves a „cross-over” of the legal systems, concepts and cultures and calls for important mutations on several levels. Starting from such appreciations, the author analyzes the trends and the prospects, in this context, of the education and of the research of law, doctrine, legal science and deontology of the legal professions in Romania.
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Finding the truth in the criminal trial sometimes requires the hearing as witnesses of some persons who know of factual elements referring to the object of the case. In order that the statements given by these persons should not be influenced by factors of pressure exercised on them, the criminal processual legislation has also instituted some special measures to protect the persons that are going to be heard in this capacity in the criminal trial, being also created special categories, such as the category of threatened witness, of vulnerable witness and of witness included in the witness protection program. This study deals with the transitory situation arisen after the entry into force of the new Criminal Procedure Code where the witness, to whom the status of witnesses with protected identity in the criminal prosecution phase has been granted in accordance with the provisions of the previous Criminal Procedure Code, is heard in the trial phase after the entry into force of the new Code.
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Within this paper, the author makes a brief review of the background, respectively of the grounds of the Decision No 363/2015 of the Constitutional Court, and afterwards he stops to analyze the effects of this decision on the criminal trials ongoing at the date when the mentioned decision is pronounced. In relation to the exigences imposed by the principle of legality of incrimination and to the fact that the text declared unconstitutional has incriminated for the first time a certain conduct as an offence, the failure to reconcile, within the legal time limit, the incrimination text with the provisions of the Constitution of Romania, republished, has the value of a decriminalization.
