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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. -
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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Fraud is perhaps the cornerstone of the Paulian action. In this sense, there is no right to action without there being a fraud in the interests of one or some of the creditors. Therefore, it is very important to know the elements that characterize the Paulian fraud. This is because the damage caused to the creditor is a consequence of the fraudulent attitude of the debtor who concludes an act with a third person with the sole purpose of hiding from the pursuit of certain goods. So, the first element to be determined in order to formulate a Paulian action is the existence of fraud that has caused the creditor’s prejudice. Through this study, we have tried to highlight some of the most important judgments in the French judicial practice that have created principles for the application of the Paulian action. Although many of them have been pronounced many decades ago, their effects are still occurring at present, and the courts which have pronounced them have shown wisdom and clarity in setting out principles that ultimately shaped a unitary judicial practice in French law. Finally, the study also presents the regulation of the Paulian fraud in the sense of the new Romanian Civil Code, with references to the new French Civil Code.
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The Civil Code expressly introduces the porte-fort convention or the promise of another’s deed in Article 1283, regulation which takes over the institution which was created in the doctrine of the Civil Code of 1865. The current codification places the institution in the section regarding the effects of the contract, but in a subsection distinct from the one devoted to the consecration of the principle of relativity of the effects of the contract. Although the systematic treatment of the principle inevitably implies the exploration of the controversies on the real or apparent exceptions, the incorporation of the analysis of the porte-fort convention in this framework has made the novelty of this legal figure somehow obscured. This article intends to make a critical analysis of the porte-fort convention in the regulation of Article 1283 of the Civil Code also from the perspective of the comparative law, by pursuing in detail the legal regime in terms of notion, forms, nature, legal characters, conditions of validity and effects, as well as the applications of this institution.
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In this article, the author presents the procedure of individual complaint of the persons before the Constitutional Court of the Republic of Turkey. According to the Turkish Constitution and to the Law No 6216/2011 on establishing the procedures before the Constitutional Court, this procedure is an exceptional means of appeal which can be used after all the other legal means of appeal have been exhausted. The individual complaint before the Constitutional Court fulfils two basic functions: the protection of the fundamental rights and freedoms of the persons and the protection of the national legal order.
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Although the Paulian action is a legal mechanism, in principle very well known, when it comes to its practical application, in order to effectively promote such action, it is very important to have a thorough knowledge of the conditions that must be met for such action both to be promoted and to be allowed. This study is divided into two parts, in which first the general conditions and then the special conditions for the promotion of the Paulian action are presented. Also, in view of the legislative changes brought about by the entry into force of the new Romanian Civil Code, but also by amending the French Civil Code of 2016, we considered opportune a comparative presentation of the novelties brought by the two legal systems.
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Principiul Separațiunii Puterilor Statului, care a avut o influență considerabilă în viața și organizarea constituțională a tuturor Statelor moderne, și-a avut și el – ca și oricare alt așezământ omenesc – viața și destinul lui.
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The study proposes the analysis of a jurisprudential solution from the perspective of the regulations on the tort civil liability for the prejudices caused by things in order to signal the recognition of the reparable nature of some new categories of prejudices. The arguments exposed are substantiated on the regulation of the Civil Code, but also on the opinions expressed in the classical and contemporary doctrine, supporting the need to ensure the full reparation of all prejudices caused to the victim.
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The Law No 95/2006 on the health reform stipulates, in Article 653 (2), that: „ the medical staff shall be liable under the civil law for the prejudices caused by error, which also include negligence, recklessness or insufficient medical knowledge in the exercise of the profession, by individual acts within the prevention, diagnosis or treatment procedures”. The text of law finds its applicability in the cases that raise for discussion whether the doctor’s diagnosis was a correct one and the chosen therapeutic conduct was necessary to restore the patient’s health condition. However, even under the terms of subsistence of the situation of error of diagnosis, this does not unconditionally engage the legal liability, an approach that makes necessary a distinction between the guilty diagnosis error and the excusable diagnosis error. In this study the authors intend to identify and analyze the hypotheses in which the doctor’s legal liability can operate/intervene in case of an error of diagnosis.
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The purpose of the author’s approach is to determine the real meaning of the contestation for annulment in relation to the other means of appeal regulated in the new Civil Procedure Code. In this respect, the author considers, in full agreement with the current case law and doctrine, that in the processual system in force the contestation for annulment has as a fundamental objective the correction of some procedural mistakes, and not of some substantive errors. In this study additional arguments are presented in favour of the thesis according to which the contestation for annulment regulated by Article 503 (2) point 2 of the new Civil Procedure Code can not have the meaning of envisaging the substantive mistakes, whereas such an approach does not have any support in the provisions of the legislation in force. The author expresses reservations also with regard to the establishment of an extraordinary means of appeal, of the sort of the former extraordinary recourse, which would make possible to remedy some substantive mistakes. In this respect, the author has noted that the trend of modern times is not one that would lead to the multiplication of the means of appeal, as it happened in our country in the last three decades, but to their rationalization and achievement of efficiency. However, an establishment of a new means of appeal could only be discussed in the context of a substantial reform of our judicial system.
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Paulian action represents, alongside oblique action and direct action, one of the most important means of protecting creditors in general. However, unlike direct actions, this legal mechanism provides general protection to all creditors, not just a few that are mentioned by the law. Against this backdrop, in the light of economic development and the many contracts concluded lately, especially in recent years, the knowledge of rights and the means of creditor protection should be of interest to all creditors. Unfortunately, although the paulian action is expressly provided for by law, creditors rarely resort to this legal mechanism to ensure the protection of their own claims. This reluctance is likely to arise from the fear of a long and cumbersome move to promote a litigation in the form of a paulian action. From this point of view, we hope that the present study will provide practitioners, theorists, and creditors with detailed information about this legal mechanism, to encourage the promotion of a paulian action whenever borrowers act against patrimony in order to avoid enforcement.
