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The interpretative solution provided by the High Court of Cassation and Justice – Panel for the settlement of some matters of criminal law by the operative part of the Decision No 15/2018, according to which „after the transfer of the person convicted by the foreign judicial authorities, in order to continue the execution of the punishment in Romania, the length of the punishment considered by the state of conviction as executed on the basis of the performed work and of good conduct, granted as benefit in favour of the convicted person, by the foreign judicial authority, must not be deducted from the punishment which is executed in Romania”, has lost its validity and binding effect both as a result of delivery of the judgment of the Court of Justice of the European Union – Grand Chamber of 8 November 2016 in the Case C-554/14 and as a result of the entry into force of the amendments brought to the provisions of Article 144 (1) of the Law No 302/2004 by the Law No 236/2017. -
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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For the appeal, which generates, in principle, a new judgment on the merits, given also the finality of exercising the appeal – the nullity of the judgment challenged – it is required another approach to the cases of nullity different than the traditional one in the matter of procedural acts. For the situation of referral of the case for retrial, it is required to argue that it is necessary to specify, in the judgment of referral, where appropriate, the part which is cancelled from the procedure followed by the court of first instance, respectively of the procedural act from which the retrial begins.
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The study aims to present a case solved by German courts. It was raised the issue of the legal qualification of the winning under a beer cap, on terms of several people having put together the money for purchasing two boxes of beer and having bought them for that amount, including the bottle with the cap which contained the prize. In the case briefly presented it was necessary to determine whether the winning belongs only to the person who discovered the prize under the cap or to all the persons who have contributed with money to purchase the bottle containing the winning cap.
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The retransmission of the right to successoral option raises some difficulties of theoretical understanding and practical application, at least for the following reasons: the Civil Code, now in force, substantially changes the logic of the previous regulation of this legal institution; in practice, there are being debated, with a significant frequency, inheritances opened before 1 October 2011 (the moment when the current Civil Code entered into force) and which consequently fall under the incidence of the provisions of the former Civil Code (which ultractivates); there are encountered, in practice more frequently, several inheritances in respect of which the right to successoral option has been successively retransmitted; the institution about whose issues we are concerned herein, in particular, have some resemblances to the successoral representation and to the retransmission of the inheritance. For all these reasons, and we believe that there are not few, nor the only ones, we will discuss further the retransmission of the right to successoral option, starting from the theoretical aspects, which are indispensable for its just understanding and for its proper application in practice. In this context, we will give concrete examples, with the hope that they will be of use to theoreticians and, in particular, to practitioners in the field of successions.
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This article presents the procedural features of the principle non reformatio in pejus in civil procedural area. It aims to concentrate the main theoretical and practical concepts exposed during the time, relating to the limits of this principle. Finally, the study is dedicated to analyze the real interference between different peremptory rules, which govern the appeal, and the principle analyzed.
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Through this study we have made a thorough analysis of the conditions of admissibility of the special cancellation (revocation) action regulated by the provisions of Article 117 of the Law No 85/2014 on the procedures for preventing insolvency and of insolvency, as well as an analysis of the possibility of cancelling (revoking) any fraudulent act concluded by the debtor in the 2 years prior to the opening of the insolvency procedure. Likewise, we have analyzed what operations concluded, in the two years prior to the opening of the procedure, with the persons who have legal relationships with the debtor may be cancelled and the benefits recovered, if they are to the detriment of the creditors, except for the acts concluded in good faith in the execution of an agreement with the creditors, concluded as a result of extrajudicial negotiations for restructuring the debtor’s debts
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Through this study we have made a thorough analysis of the conditions of admissibility of the special cancellation (revocation) action regulated by the provisions of Article 117 of the Law No 85/2014 on the procedures for preventing insolvency and of insolvency, as well as an analysis of the possibility of cancelling (revoking) any fraudulent act concluded by the debtor in the 2 years prior to the opening of the insolvency procedure. Likewise, we have analyzed what operations concluded, in the two years prior to the opening of the procedure, with the persons who have legal relationships with the debtor may be cancelled and the benefits recovered, if they are to the detriment of the creditors, except for the acts concluded in good faith in the execution of an agreement with the creditors, concluded as a result of extrajudicial negotiations for restructuring the debtor’s debts.
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This study is an analysis of how the direct judicial control is exercised over the problems arisen in the execution of the custodial sentences, through a new institution, the one of the judge of supervision of deprivation of liberty, as well as an analysis of the limits of his competences. Likewise, the study also analyzes the juridical dimension of the administrativejurisdictional complaints filed by the persons deprived of liberty in order to defend their rights and interests. The study is based on the conclusions drawn from the activity of the author, as registrar, at the office of the judge of supervision of deprivation of liberty.
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Accepting co-authorship in the commission of acts with basic intent has represented, sine die, a permanent struggle for scholars since the adoption of the 1968 Criminal Code. Both the literature and the judiciary have had divergent positions. In the present paper, the purpose is to assess all factors that can lead to a positive or negative answer to the question: Is co-authorship compatible with basic-intent? The analysis will be divided: the national status-quo versus the alternative solution, respectively the German one. In the national arena, the existing arguments and the foundations for the possible envisioned outcomes will be discussed. Within the German framework, the institution of Nebentäterschaft will be assessed in a comparative approach, underlying similarities and differences when compared to the Romanian framework. Finally, a personal note will be added to the mix.
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The study analyses the right of the accused to participate in the judgement of the case, the notification thereof and the finding of an obvious avoidance that allows for a decision to be taken in absence. In addition, there are analysed practical cases about the judgment of the case in the absence of the defendant for the reason of deliberate avoidance, as well as for reasons imputable to the authorities when the defendant has not been properly summoned.
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A decision pronounced for the settlement of an appeal in the interest of the law by the High Court of Cassation and Justice (No 25 of 6 November 2017) brings to attention the inadequate perception by the Romanian jurisdictions of the particularities of these administrative acts of urbanism and, consequently, the recourse to procedural artifices inappropriate for solving some problems arisen in practice. In this case, for the separate exercise of the control on the legality of the urbanism certificate „by which the prohibition to build has been ordered or which includes other limitations”, the right of access to justice has been invoked [Article 6 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms], ignoring the legal nature of this act as individual urbanism administrative act that would, under certain conditions, have led to the same solution, but on another legal basis. In addition, it would be avoided the misconception that the certificate would order or that it would contain per se prohibitions/limitations of the right to build, this doing nothing else but take over, express and inform about the urban planning requirements included in the urbanism documentations.
