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The study deals with the analysis of innovative legal solutions related to the divorce proceedings covered by Law No. 134/2010 on the Code of Civil Procedure. Thus, it was envisaged the establishment of territorial jurisdiction of the Court in relation to the residence of the spouses or of one of them, filing of the action for divorce by the husband who, legally incapacitated, has discernment and the prosecution of the action for divorce by the plaintiff husband’s heirs deceased during the trial. -
In this analysis, the author carries out a study of the continued offence regulated by the Criminal Code of Romania, covering both theoretical and practical aspects, proposing different solutions in the determination of legal classifications according to the concrete circumstances of the cases. The analysis proceeds from the regulatory framework of the continued offence, continues with doctrinal references and argues or counter-argues with its own arguments, expressing the author’s own opinion. Particularly, when the conditions of the continued offence are analyzed, the one that regards the factual homogeneity of the material acts that form the legal unity of the offence is emphasized. -
One of the forms under which it is presented the right of joint ownership on forced quota-shares is represented, in the conception of the legislator that has created the current Civil Code, also by the periodic ownership. Placing this form of joint ownership within the joint ownership on forced quota-shares is the creation of the legislator, but it is not sheltered from criticism. Among the issues raised by the regulation of the periodic ownership in Articles 687–691 of the Civil Code is also the obligation of compensation and the exclusion, legal provisions upon which the authors of this study have insisted. The provisions of Article 691 of the Civil Code are criticizable both in the way they are formulated and in respect of the effects that the legislator has pursued. -
The authors review in this study the legal regime of receivables’ discounting, both in the Civil Code (of 1865, still in force), and in other special laws, as well as in the Romanian new Civil Code (Law no. 287/2009) or in the Romanian new Civil Procedure Code (Law no. 134/2010, neither law has entered into force yet), also considering the opinions expressed in the doctrine and in the relevant decisions of the case law. In this context, the authors reach the conclusion that indexation is compulsory, as it is in line both with the provisions of the Constitution of Romania and with the (European) Convention of Human Rights and Fundamental Freedoms. -
Law no. 272/2004 regulated – in the aggregate – the legal regime of protection and promotion of the rights of children in Romania. In the research hereby, the author conveys some viewpoints on the rules of law mentioned in relation to the exercise of parental rights and responsibilities when determining the special protection measure of placement by the child protection committee, committee settled by the same law. -
The autonomous collaterals are regulated, for the first time, by the new Civil Code, within the personal collateral, together with the parent guaranty. The law allots them a small portion, equally essential and simple, so that they may have substance and legal identity. But their legal regime can be essentially revealed through the extension of the analysis to the regulations in the field. The uniform rules for demand guarantees constituted by the International Chamber of Commerce from Paris and the Convention of the United Nations Commission on International Trade Law with respect to the independent guarantee and the stand-by letter of credit. The present paper analyses the legal regulation, the concept and the legal category of the autonomous collateral. The author’s objective is that of revealing its complexity as a legal fundamental instrument in the field of internal and international business. -
The author notices that the new definition of the material element of the objective side of the crime is clearer than the current wording. Unlike the current regulation regarding the sexual intercourse, of any type, in the new wording of the incriminatory rule, the lawmaker refers distinctively to the sexual intercourse, the oral or anal sex, in case of the form of crime, and distinctively to any other acts of vaginal or anal penetration, in case of the assimilated form of crime. The passive subject of the crime may be, in the new wording of the incriminatory rule as well, any person irrespective of gender, age, civil status, including the perpetrator’s wife. The aggravation of the crime is triggered by six aggravation causes, unlike the four in the current Criminal Code, following the provision of new forms of aggravation or the redefinition of aggravation causes in the case of rape against a relative in direct line or against a brother or sister; rape against a minor under 16 years of age; rape committed for producing pornographic materials; rape resulting in the injury of the victim. The incrimination of attempted rape proves the inconsistency of the lawmaker. The system of penalties provided by the new Criminal Code raises the question of enforcing the more favorable criminal law. -
The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with Art 325 of the Treaty on the Functioning of the European Union, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union’s institutions, bodies, offices and agencies. For this purpose, Member States shall coordinate their actions and shall organize, together with the Commission, a tight and constant cooperation between competent authorities and shall take measures to counter fraud affecting their own financial interests. Romania, by adopting Law No 78/2000 on preventing, discovering and sanctioning corruption acts, the Law No 161/2003 on regarding certain measures for ensuring transparent exercise of public dignities, positions and business transparency, by prevention and sanctioning corruption, the Law No 61/2011 on the fight against fraud department, Government Decision No 215/2012 on the National Strategy for 2012-2015 and other normative acts, has created the legal framework necessary for the protection of the European Union’s financial interests. -
This study is meant to clarify the content and the meaning of legal norms devoted to the protection of databases. The author presents and subjects to analysis the points of view of prestigious authors and his own relative to the legal nature of the rights arising from the creation of databases. This paper examines the elements of the legal relationship arising from the database creation: the subjects, the object and the content of the relationship, emphasizing the particularities and the specificity that shape its identity. However, the topic discussed is connected to the European case-law in the matter, precisely to highlight the manner in which it is raised the question of the relationship between the protection of databases in the area of copyright and through the sui-generis right of the creators of these intellectual creations. The author analyses databases in order to underline the fact that they are man-made creations, with an important role in the economic and social life and are more and more frequently exposed to unfair competition. Moreover, the article also offers starting points for specialists called to study thoroughly less known aspects of the legal protection of databases. -
In the study hereunder, the author makes some considerations regarding the patrimonial liability of public law legal entities for their offence of issuing injurious administrative instruments. In this regard, it is concluded that the identification of public law legal entities is essential, since only these may be liable against the prejudiced creditor, the public authorities issuing the injurious administrative instrument lacking legal personality cannot being patrimonialy held liable against the prejudiced person. As for the legal nature of liability, this is a special subjective liability (if the administrative instrument is illegal) and, respectively, unbiased liability, if the instrument causing prejudices was issued through an illegal administrative instrument. -
In this study the author makes an analysis of the institution of waiver of criminal prosecution, including from the perspective of other systems of law, of the conditions provided by law for ordering the waiver of criminal prosecution, as well as of other optional criteria of opportunity, which must be considered when ordering this solution provided by law. Likewise, he formulates some critical remarks referring to the practice of some units of the prosecutor’s office, the author also making some de lege ferenda proposals on some problematic issues. -
The author highlights the manner in which the observance of fundamental rights enshrined and guaranteed under the Charter of Fundamental Rights of the European Union is ensured by the national constitutional rules and the main provisions of the Civil Code, the Code of Civil Procedure, the Criminal Code and the Code of Criminal Procedure, as well as by domestic judicial courts that interpret and apply the domestic or European law, on a case-by-case basis. At the same time, the study also presents the case-law of the Court of Justice of the European Union relevant in the matter of ensuring access to justice, the right to a fair trial, as well as the relationship between EU law and the national law relating to judicial organization. In this regulatory and jurisprudential framework, the author considers that compliance with the Charter of Fundamental Rights of the European Union moves toward being enforced by national courts, along with the (European) Convention for the Protection of Human Rights and Fundamental Freedoms.
