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Potrivit art. 226 alin. (5) C.pen., plasarea, fără drept, de mijloace tehnice de înregistrare audio sau video, în scopul săvârșirii faptelor prevăzute în alin. (1) și alin. (2), se pedepsește cu închisoarea de la unu la 5 ani. Conform art. 207 alin. (1) C.pen., constrângerea unei persoane să dea, să facă, să nu facă sau să sufere ceva, în scopul de a dobândi în mod injust un folos nepatrimonial, pentru sine ori pentru altul, se pedepsește cu închisoarea de la unu la 5 ani. Potrivit art. 291 alin. (1) C.pen., pretinderea, primirea ori acceptarea promisiunii de bani sau alte foloase, direct sau indirect, pentru sine sau pentru altul, săvârșită de către o persoană care are influență sau lasă să se creadă că are influență asupra unui funcționar public și care promite că îl va determina pe acesta să îndeplinească, să nu îndeplinească, să urgenteze ori să întârzie îndeplinirea unui act ce intră în îndatoririle sale de serviciu sau să îndeplinească un act contrar acestor îndatoriri, se pedepsește cu închisoarea de la 2 la 7 ani (cu notă parțial aprobativă). -
The promotion and protection of the rights of the child has always been one of the main objectives of the European Union, but it is also a result of international commitments. All Member States of the European Union have ratified the UN Convention on the Rights of the Child, and the rules and principles of this Convention guide the policies and the actions of the Union that impact on the rights of the child. The Lisbon Treaty has conferred greater importance to the objectives of the European Union, and by Article 3 (3) of the UN Convention on the Rights of the Child it was explicitly established the imperative obligation to promote the protection of the rights of the child. In addition, the rights of the children are enshrined in the Charter of Fundamental Rights of the European Union, which by Article 24 recognizes children as independent and autonomous holders of rights, also considering the best interest of the child as paramount in relations with the public authorities and the private institutions. The transposition of the European and international objectives, as well as of the fundamental principles referring to the protection of the rights of the child took place naturally through the adoption of new national regulations reflecting the acquiescence of Romania to the European objectives and its constant concern for the protection of the rights of the child. However, in many cases there are encountered in practice situations where, although there are both the legal basis and the mechanisms necessary for its implementation, the rights of the children are not respected and/or are not given due importance. This paper aims to draw attention once again to the essential rights of children and to emphasize the fundamental principles referring to the promotion and protection of rights of the children, with particular regard to the principle of the best interest of the child, as regulated at European level.
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The article presents theoretical and practical aspects regarding the exclusion of evidence in the preliminary chamber, taking into account the Decision of the Constitutional Court No 22 of 18 January 2018 regarding the plea of unconstitutionality of the provisions of Article 102 (3), Article 345 (3) and Article 346 (4) of the Criminal Procedure Code, by which the plea of unconstitutionality of the provisions of Article 102 (3) of the Criminal Procedure Code was admitted and it was found that they are constitutional insofar as the phrase „exclusion of evidence”, therein, means also the elimination of the means of evidence from the case file.
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The Civil Procedure Code reserves only five articles to the court costs and this study will emphasize the fact that this area exceeds the regulatory scope of the Civil Procedure Code, having connections also with other normative acts, as well as the circumstance that the assessment of the quantum of court costs is an aspect left to the enlightenment and wisdom of the judge, the legislator offering few criteria for evaluating their extent. The purpose of the present study is to provide an overview of the judicial costs, as well as to delimit the scope of the costs that can be recovered as a result of winning the trial from the costs that the courts did not approve. We will submit to the analysis the notion of costs, their legal nature, but also the legal basis underlying their award. Likewise, we will stop on the modality in which the court costs can be reduced or even rejected by the court. A separate part of the present paper will be devoted to the analysis of the lawyer’s fee, as part of the court costs. In this section, we will make a presentation of the different ways of establishing the lawyer’s fee, stopping, in particular, at the success fee, which we will define and delimit from the pact of de quota litis. At the end of the paper, we will offer some proposals de lege ferenda regarding the evaluation of the court costs, the necessity of legal regulation of the success fee and of the costs requested separately.
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The motivated findings and conclusions of the expert or of the laboratory or specialized institute from which the expertise has been requested will be recorded in a written report. Exceptionally, when the expertise is carried out in front of the body that disposed/ordered its execution, the expertise report may be oral. The form of the expertise report also depends on the nature, as well as the specificity of the problem that generated the expertise. In all cases where the expertise requires time, documentations, travels, researches, analyses, laboratory tests, etc., the expertise report will take the written form. In case the expert can immediately express his opinion on the factual circumstance whose clarification requires specialized knowledge, he will be heard during the meeting, and his opinion will be recorded in a minutes, according to the provisions relative to the recording of the witness statement, which apply accordingly. As such, the expertise report is the document by which the expert informs the court of all the legally collected information which clarify (bring light on) the issues to be examined, being, therefore, the means by which the evidence is presented to the judge. The expert must limit himself to reporting what he has perceived, without expressing his opinion on the consequences of fact and of law that might result. The text of the report will include clear, short and dense phrases and sentences, using accessible vocabulary, without ambiguous formulations or terms and without references to proceedings outside the file. The technical terms, which are difficult to access, will be explained at the bottom of the page or in brackets, in order to facilitate the understanding of the conclusions.
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The purpose of this study is to analyze the legal regime of the right of national minorities to use their mother tongue in the public administration, as it is regulated in the Administrative Code, recently adopted by the Government by the Emergency Ordinance No 57/2019. It was established in the Romanian legislation immediately after 1989, through the first Law of the local public administration No 69/1991, taken over and developed by the Law No 215/2001, and through the Administrative Code, it finds its place, mainly, in the 3rd part thereof, dedicated to local public administration. In the Constitution it was established in 2003, by completing the former Article 119, which became Article 120, with a new paragraph, which expressly regulates it.
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At the conclusion of the individual labour contract it can be established, as provided in Article 31 of the Labour Code, a probation period. The legislator has established only the maximum duration of the probation period; specifically, the duration of the probation period is agreed upon in the individual labour contract, when negotiating the clauses. The probation period cannot be modified, being established upon the conclusion of the individual labour contract, but it can be suspended. In the case of the probation period, the dismissal procedure is limited only to the written notification, which must not be motivated, without other obligations for the employer, not even granting a notice period, nor carrying out the procedure of evaluation of the employee.
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Expertise is the activity of research of certain facts or circumstances of the case, which requires specialized knowledge, activity carried out by an expert or, in the cases provided by law, by a specialist in a specific field, designated by the court at the request of the parties or ex officio, and whose findings and/or conclusions are reported in a written document, called an expertise report. As such, the expertise and the expertise report are two interdependent operations, since the expertise report is the follow-up of the expertise, its final act, and the expertise is the research activity on which the expertise report is based. Although the legislator establishes that the evidence can be provided, among others, by means of the „expertise” (Article 250, Articles 330–340 of the Civil Procedure Code), which constitutes the means of proof, from a legal point of view, is the expertise report, and not the expertise itself. The expertise can only concern factual circumstances on which the expert is asked to give clarifications or to ascertain them, circumstances which require specialized knowledge and which help to solve the case. The legal norms cannot form the object of the expertise, because the judges must know the law in force in Romania. However, the content of the foreign law is established by the court of law through „attestations obtained from the state bodies that have enacted it”, by „expertise opinion” or by another appropriate way [Article 2562 (1) of the Civil Code].
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Within this study the author makes a brief examination of the main amendments and supplements of the new Civil Procedure Code, operated during the period passed from its adoption up to the present. Some of the most significant normative amendments and supplements have been operated by the Law No 310/2018 and concern the matter of material competence of judges. The author considers that by these legislative interventions the legislator’s vision about the competence of the courts of first instance has been significantly amended, this being enlarged with cases of special importance, such as those in matters of inheritance and usucapion. In this way, the courts of first instance tend to become, to a certain extent, common law courts, and not courts for the small claims. A change of substance which has been emphasized in a special way is also the one that offers another perspective on the competence of the supreme court in the matter of review. Important evolutions have also been brought in the matter of incompatibility, of the regularisation procedure and in the field of enforcement. With regard to these institutions the author has formulated also some criticism about their content, but also in relation to some unconstitutionality decisions, among which some are considered questionable.
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The article proposes a sensitive topic in the Romanian criminal procedure, namely to determine the extent to which the cases of absolute nullity are limitatively provided by the Criminal Procedure Code (Article 281 of the Criminal Procedure Code) or whether there are cases of nullity of the processual or procedural documents which, although not included in the enumeration of Article 281 of the Criminal Procedure Code, are, however, veritable cases of absolute nullity. The problem is all the more delicate since the national doctrine is situated, up to this moment, in the comfort zone in which the cases of absolute nullity are equated to those of express nullity and those of relative nullity to those of virtual nullity. I have shown, with examples from the practice, but also from the doctrine (too timid so far), that there are situations of virtual absolute nullity of the criminal processual acts not even listed in the content of Article 281 of the Criminal Procedure Code, as well as the situations in which they may become incidental.
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The direct action in the guarantee for hidden vices is still a new subject in the legal doctrine and especially in the Romanian judicial practice. At present, judicial practice has not committed such an action, although the issue has been debated, both in the doctrine of the old Civil Code, and especially in the doctrine of the new Civil Code. What is even more surprising is that the legislator understood to directly regulate such direct action in the case of the guarantee for eviction, without regulating it in the case of the cover for hidden vices. If technical and legal issues seem relatively simple in the case of direct action for hidden vices against a previous vendor or first seller, things get complicated when it comes to direct action in hidden vices against the contractor. The present study aims to identify the legal nature and the basis of the direct action in the guarantee for hidden vices against the contractor, thus establishing its admissibility criteria. By the arguments that we will render, we hope to contribute to the shaping of some defining elements of direct action that will facilitate its practical application.
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The recent Administrative Code (approved by the Government Emergency Ordinance No 57/2019) has taken over from the old regulation (the Law on local public administration No 215/2001), with some amendments, the rules regarding the function of public administrator at the level of communes, cities, municipalities, counties and associations of inter-community development. In this article, the author mainly considers the appointment of the public administrator by the mayor, the delegation of his attributions, including that of the main loan officer. Special attention is paid to the management contract (its object, the rights and obligations of the contracting parties, its duration and its cessation). Regarding the legal nature of the respective contract, the author’s opinion is that this is an administrative contract, of public law. Among the arguments considered the following are included: it is regulated by the Administrative Code; one of the parties is a public authority; its object consists in „coordinating some compartments of the specialized apparatus or of the public services”; it can be terminated (unilaterally) by the public authority. The end of the article is devoted to the triptych at the level of communes, cities and municipality, triptych consisting of the mayor, the deputy mayor and the public administrator. The idea is that the delegation of some of the attributions to the public administrator does not remove the competence of the mayor to exercise any attributions given by law in his competence.
