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Calea de atac a contestației poate fi exercitată, în condițiile art. 347 C.pr.pen., inclusiv atunci când niciun participant la procesul penal nu a formulat cereri sau ridicat excepții în procedura camerei preliminare. În acest scop, încheierea prin care judecătorul finalizează procedura de cameră preliminară trebuie comunicată participanților, eventuala omisiune putând fi revelată inclusiv în calea de atac a apelului, cu consecința regresării procedurii din faza judecății în faza camerei preliminare (cu notă aprobativă). -
Faptul că procurorul nu și-a manifestat opțiunea de a menține dispoziția de trimitere în judecată sau de a solicita restituirea cauzei într-un termen de 5 zile, în condițiile art. 345 alin. (3) C.pr.pen., nu îl decade din dreptul de a formula contestație în condițiile art. 347 alin. (1) C.pr.pen., în lipsa unor dispoziții legale exprese, și solicita începerea judecății în contextul constatării legalității sesizării instanței, a administrării probelor și a efectuării actelor de urmărire penală (cu notă aprobativă). -
In Romania, the former Code of Civil Procedure (of 1865, republished in 1948 and amended and supplemented many times since then) with effect from February 1st, 2013 will be repealed and replaced by the current Code of Civil Procedure (Law No. 134/2010, republished on August 3rd, 2012). The topic of producing evidence in the new Code of Civil Procedure is being approached in this study; its authors believe that the new Code has not made essential amendments to the provisions relating to producing evidence, but only a number of additions in some areas such as: trial investigation; selection of the producing evidence procedure; the place of the trial investigation (in closed session and not in open court); producing evidence etc. -
The new Civil Procedure Code brings some amendments in the procedure of administration of evidence by lawyers, introduced in the Civil Procedure Code of 1865 by the Government Emergency Ordinance No 138/2000. This study details this procedure trying to anticipate a few of the problems that may arise in the judicial practice at the time of using this modality of administration of evidence in the civil lawsuit. -
Soluția legislativă cuprinsă în art. 345 alin. (1) din Codul de procedură penală, care nu permite judecătorului de cameră preliminară, în soluționarea cererilor și excepțiilor formulate ori excepțiilor ridicate din oficiu, să administreze alte mijloace de probă în afara „oricăror înscrisuri noi prezentate”, este neconstituțională. (Curtea Constituțională a României, Decizia nr. 802/2017 – cu notă aprobativă)
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The presentation of the new civil law regulations in our country provides us with the opportunity for introspection in the legislations, case law and doctrine of other countries from which our lawmaker inspired. An example in this respect is the « administration of the property of others » which is an institution taken over from the Civil Code of the Quebec Province, Canada. From this perspective, the authors considered necessary and useful to make a presentation of the evolution and content of the institution in the « Québécois » Civil Code, in the current stage of reform in our country. They mention the civillaw nature of the legal system in this Canadian province and the work of its civil code re-codification, which was completed in 1994. The central subject of the article is the administration of the property of others, with the presentation of the administrator, the beneficiary, the forms of administration, as well as its termination. The authors briefly mention legislative provisions in this field in other countries as well. Moreover, under the analysis regarding the general nature of the regulation regarding the administration of the property of others, the authors also emphasized other provisions of the new Civil Code referring to this institution, such as the investments considered safe, the trust, the guardianship of a minor child, the taking-over of mortgaged property. The authors emphasize the importance of relating to the doctrine and case law belonging to the legislative system from which the new regulations in our Civil Code come and their adjustment to the social-legal life in Romania, taking into consideration its particularities. -
The study tends to discern the essential characters and the legal regime of the administration of the assets of another, which represent a novelty in the landscape of our legal system. After examining the general regulatory framework of this institution and the special one in the matter of guardianship of the minor and of the ad-hoc guardianship, we argued that the obligations of the management bodies of the legal person or of the trading companies should not be reduced to mandate relations concerning legal relations with third parties, because the entire regulation regarding the attributions of these bodies in relation to the patrimony of the legal person or of the company is impregnated by the spirit of the institution of the administration of the assets of another. In approaching the institution, we have analyzed the manner of adoption of the decision-making acts compared to the adoption of the decisions in matters of co-ownership and the measures that the court of law can take in case of the decision-making blockage. With regard to the plurality of administrators, there have been brought to attention the issue of their liability, the exceptions to the solidarity rule, including the liability in case of delegation of attributions. Depending on the powers granted to the administrator by the act of appointment, it has been marked the delimitation between the simple administration and the full administration, with the legal regime related to each form of administration. In another section, there have been examined the common rules of the two forms of administration regarding the separation of patrimonies, the guarantees, the administrator’s liability in the relations with third parties and the beneficiary, in case he acted in his own name or in excess of the proxy, the procedure of exercising the control of the beneficiary on the manner of administration and its efficiency, the ways of cessation of administration and its effects with special outlook on the handover of the administered assets, the expenses deducte d from the administered patrimony, as well as the expenses incumbent on the administrator under the contract of administration. -
The object of the paper are the standards which, according to the European Court of Human Rights, must be met by the procedure of hearing witnesses so that the defendant be given an adequate and proper opportunity to question them and the requirements of the fair trial be satisfied. Those standards include a relative right of the accused to confront the prosecution witnesses, the right to legal assistance and the principle of immediacy of witness examination. The latter principle has certain implications regarding the requirement that witnesses should give evidence at trial and that the hearing of witnesses should be repeated in the appeal proceedings and in other situations in which new judges are appointed during trial. It is applicable, pace the Constitutional Court, in the procedure concerning the confirmation of the prosecutor’s decision to discontinue the proceedings. All along the study we follow the way in which the European Court of Human Rights uses the method of combination of criteria to evaluate the interferences with the rights of the accused.
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In the new Criminal Procedure Code, the function for verification the sending to trial legality is conducted by a judicial body independent of the Court, the judge for preliminary chamber. In the preliminary chamber procedure, the judge checks the regularity of the referral, the legality of the administration of evidence and of prosecution acts, as well as the jurisdiction of the Court. The Criminal Procedure Code does not provide expressly the type of the act by which the Prosecutor can remedy the deficiencies of the referral. The jurisprudence is not unitary, sometimes recognizing, sometimes penalizing the remedy of the deficiencies of the indictment through different types of procedural acts. The article achieves analysis of doctrine with regard to this issue. The authors motivate the solution that preserves the unity of the sending to Court act, respectively the remake of the indictment. Consequences of the types of solutions adopted in practice are explored from the perspective of the right to defence of the accused person. -
The legal regime of the notarial act in the legislation of the Republic of Moldova and in that of Romania is a relatively new topic, particularly up-to-date, complex and extremely tempting through the problems that need to be solved. This subject is distinguished by the controversies it generates, but also by the diversity of the practical solutions that can be identified. The development of the commercial activities and the extension of the access to the markets for sales of goods requires an in-depth research on the legal nature of the civil act in general and of the notarial act in particular, by forwarding some proposals for improving the normative basis, in the interest of strengthening the constitutional regime and the civil circuit. In the Republic of Moldova there is a long process of formation and consolidation of the notarial legislation. In the absence of a well-developed normative framework, the notaries public in the Republic of Moldova apply, sometimes, the rules for carrying out notarial acts inherited ever since the period of the Soviet Union. Another situation exists in Romania, whereas the legislator, by the Law No 36/1995, has established a stable normative framework for regulating the notarial law relations.
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The author of this study proposes an analysis of the will of the legislator manifested by the introduction of the institution of preliminary chamber judge. Within this study it is made a brief comparison of this institution with some national legislative precedents, but also in relation to the regulations of other states. -
The study analyzes the land registry actions covered by the Decree-Law No 115/1938, by the Law No 7/1996 and by the new Civil Code, the conditions of admissibility of these actions, their features and their effects, the differences of legal regimes being also presented. Thus, the advertising system based on land registries has in its content, in addition to its specificity, which gives it superiority in relation to the former system of advertising through registers of transcriptions-inscriptions and civil actions regulated in order to satisfy this superiority and which are intended to facilitate the civil legal circuit within that system. Likewise, the study also analyzes the correlation of these actions with the civil action in performing a sale and purchase preliminary contract, identifying the specificity of the correlation in different historical periods. The specificity of the land registry actions is presented also from the perspective of the application of the civil law over time, evoking the incidence of a temporary law in this field.
