-
Publicăm mai jos hotărârea Tribunalului Ilfov, dată în procesul dintre Societatea tramvaiurilor și Ministerul de interne, cu prilejul aplicărei legei din 18 Decembrie 1911, și anume părerea motivată a majorităței (d-nii N. Algiu, președinte, și C. Bossie, judecător) și aceea a d-lui judecător I. G. Manu. -
Cititorii Dreptului au luat cunoștință de proiectul de lege relativ la noua modificare a legii Curții de Casație, în scopul reînființării recursului direct în materie de contencios administrativ, în expunerea de motive a d-lui M. Cantacuzino, ministrul justiției, ce am distribuit în supliment. Publicăm aici și raportul d-lui Petre Missir, care este un document luminos asupra legii propuse, aflată în discuția Senatului.
-
Recognition of the adherence of leniency to the legal phenomenon or its inclusion in the extrajuridical field is determined by the nature of philosophicalmaterialist or idealist conceptions. Amnesty and pardon are based on the socio-political grounds and have as foundation the feelings of gentleness, magnanimity, compassion. Justice is the ideal state of society, achievable by ensuring, for each separately and for everyone together, the enjoyment of legitimate rights and interests. The fundamental components or values of the notion of justice are: righteousness, social utility, legal certainty. The concept of leniency is related to all the three elements. By its very name, its functions and its purpose, the law must be based on the idea of righteousness. The essence of the idea of righteousness is to treat similar cases equally and different cases in distinct ways. The exercise of leniency is closely related to the principle of justice. Social utility means to organize a community to ensure the good of everyone and of each separately. The same social utility claiming punishment sometimes justifies the abandonment of punishment or forgiveness thereof. Legal security designates that state of safety of individuals and of society as conferred by the legal normativity by complying with its prescriptions. Although it is sometimes considered that leniency means bankruptcy in criminal justice, the legal certainty will never be affected if leniency acts are consistent with a rational legal conscience and does not harm the rights of the injured parties by committing the offence. Amnesty and pardon are not directed against legal certainty, but, on the contrary, they are put to the service of the common good, which is a proof of trust and a means of protecting the citizens. The three components of the idea of justice – righteousness, social utility and legal certainty – are in a tensed state. Amnesty and pardon are called to detension and harmonize these relations. Leniency is not in antithesis with the law, but it is inevitable for its completion.
-
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 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.
-
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.
-
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.
-
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.
-
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.
-
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.
-
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.
