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The author analyses some specific features of the claim for compensation brought by private persons injured by unlawful administrative acts of authority or by public authorities’ refusal to solve claims concerning rights and legitimate interests of citizens. The claim for compensation has an accessory and subsidiary character in relation to the main claim for the annulment of the administrative act of authority, the repair of the damage being conditioned by the annulment of the act or by the obligation of the public authority to solve the claim of the private person. The study points out that the accessoriality relationship between the claim for compensation and the main claim bears consequences with regard to the jurisdiction of administrative courts. -
This paper enumerates and analyses the main sources of the Romanian fiscal law.
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A systematic analysis of relevant provisions of Law No 554/2004 on administrative disputes, Civil Procedure Code and Law No 192/2006 on mediation and organisation of the profession of mediator takes the author of this paper to the firm conclusion that in administrative disputes regulated by Law No 554/2004 mediation shall not be applied, but only the prior procedure provided by Article 7 of the Law No 554/2004.
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Granting the potential contribution period for establishing the invalidity pension of persons classified within the 1st or 2nd invalidity degree who have lost their capacity to work due to common illnesses or accidents, not related to work, is currently conditioned by the obligation to complete a contribution period „in relation to age, provided in Table No 3” of the Law No 263/2010. The author considers that this provision, laid down in Article 76 (1) of the Law No 263/2010 on the unitary system of public pensions (as revised through Law No 37/2013), is unconstitutional as it is contrary to considerations made by the Constitutional Court in its Decision No 680/2012.
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The article presents the characteristics of the civil action in criminal proceedings, points out the active and passive subjects of the legal action, and concludes that the civil liability insurer may not be obliged, in criminal proceedings, either jointly with the defendant or directly, to pay civil compensations to victims of road traffic accidents.
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Based on historical considerations this paper analyses the need for a codification in the area of contraventions and argues in its favour. Taking stock of current issues revealed by relevant legislation and case-law, concrete suggestions are made with regard to the structure and provisions of such a statutory instrument. The author appreciates that a vigorous doctrinal debate would be needed in order to identify the best legal options.
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Given the fact that „the annual EU budget incurs losses over 500 million euros due to fraud”1 establishing a European Public Prosecutor’s Office in order to combat offences that affect the financial interests of the European Union is deemed as a necessity. The difficulty of conducting cross-border investigations by national judicial bodies and the deficiencies of the international judicial cooperation in criminal matters require the creation of such an authority with exclusive jurisdiction in conducting acts of criminal investigation, prosecution and bringing to justice of those who are guilty of committing specific offences that affect the financial interests of the European Union.
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Prin Sentința penală nr. 2751/20121 a Judecătoriei Timișoara, Secția penală, definitivă prin Decizia penală nr. 233/R/20132 a Curții de Apel Timișoara, Secția penală, inculpatul M.N. a fost condamnat pentru săvârșirea infracțiunilor de nerespectare a regimului armelor și munițiilor prevăzută în art. 279 alin. 31 C.pen. și ultraj contra bunelor moravuri și tulburarea ordinii și liniștii publice prevăzută în art. 321 alin. 1 și alin. 2 C.pen., infracțiuni săvârșite în concurs ideal. (Curtea de Apel Timișoara, Secția penală, Decizia penală nr. 233/R din 19 februarie 2013)
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Știința juridică românească din ultimii 60 de ani este marcată major de activitatea desfășurată de Institutul de Cercetări Juridice al Academiei Române (în continuare denumit ICJ sau Institutul). Într-adevăr, creat într-o anumită conjunctură istorică, acesta a reprezentat prima „instituționalizare” a acțiunii de cercetare științifică a dreptului în țara noastră, și-a cucerit rolul de „centru” național de desfășurare și coordonare în domeniu, iar prin performanțele și rezultatele obținute s-a manifestat ca lider absolut în materie, beneficiind de contribuția fondatoare a unor personalități remarcabile ale științei dreptului românesc, precum Traian Ionașcu, Vintilă Dongoroz, Mihail Eliescu, Salvador Brădeanu, Eugen A. Barasch, Petre Anca, Yolanda Eminescu ș.a.
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Verificarea respectării normelor de competență se realizează atât de instanța învestită cu judecarea litigiului, la cererea părților sau din oficiu, cât și pe calea controlului judiciar, de către instanțele superioare învestite cu judecarea căilor de atac. În acest din urmă caz, hotărârea instanței de control judiciar prin care se statuează cu privire la competența unei instanțe de a soluționa litigiul este obligatorie, atât timp cât aceasta este irevocabilă.
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This paper provides a legal analysis of rules in the new (Romanian) Civil Procedure Code on ensuring a unitary judicial practice, i.e. the appeal in the interest of law and, respectively, the referral to the High Court of Cassation and Justice for a preliminary ruling on the settlement of matters of law. While the appeal in the interest of law existed also in the previous Civil Procedure Code, the referral to the High Court of Cassation and Justice is a new procedure, not regulated by the previous Civil Procedure Code. -
This article analyses the categories of incompatibilities of judges regulated by the Civil Procedure Code, since its initial publication in 2010 to the amendments brought by Law No 76/2012 implementing Law No 134/2010 on the Civil Procedure Code and to the version that resulted after the republication in August 2012. In the original version of the Civil Procedure Code distinction was not made between cases of incompatibility, but the effects thereof resulted in the existence of two categories: absolute and relative incompatibilities. Following amendments brought by Law implementing the Civil Procedure Code, this distinction seemed to be established in the legislation. Nevertheless, after the republication of the Civil Procedure Code, marginal titles suggest the existence of some cases of absolute incompatibility and other cases of absolute incompatibility, which does not correspond to the content of the respective texts since only cases referred to in Article 41 of the Civil Procedure Code are absolute, while those referred to in Article 42 of the Civil Procedure Code are relative.
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Among the means of protection of a creditor’s rights, the present Civil Code regulates the (Paulian) revocatory action within Articles 1562–1565. This civil action has been regulated also in the previous Romanian Civil Code. However, in this study the author examines exhaustively the admissibility conditions of the revocatory action in the light of the present Romanian Civil Code, which entered into force on 1 October 2011.
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This article intends to provide an analysis of one of the cases of absolute nullity of marriage, expressly regulated by the Civil Code, i.e. bigamy. After a brief introduction follows the discussion of the sanction of a marriage concluded by an already married person whereby relevant provisions, conditions to be fulfilled for establishing the absolute nullity of marriage in case of bigamy, as well as some aspects pertaining to invoking good faith at the time of concluding the new marriage are taken into account.
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Economic offence can be defined as a deed that affects the legal regime established for carrying out economic activities. Unlike the Criminal Code of 1968, which dedicated the Title VIII of its special part to economic offences, the new Criminal Code contains only some economic offences, scattered among various titles and chapters.
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In this study the authors criticize an isolated opinion (the vice of consent of lesion is inapplicable to the individual labour contract) expressed more or less recently in the Romanian legal literature. The provisions of Article 1221 and (limitatively and partially) Article 1222 of the Civil Code supplement the provisions of the Labour Code. On the other hand, Articles 1223–1224 of the Civil Code are completely inapplicable in case of individual labour contract.
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The author analyses (partly critically) provisions of Article 16, Article 17 and Article 19 of the Romanian Labour Code concerning the written form of the individual labour contract, the obligation to inform the employee on the essential clauses of the contract and the sanction for the failure to fulfil the information obligation with a view to better correlate them with Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship and with the case-law of the Court of Justice of the European Union on this matter.
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Mediation is governed by Law No 192/2006. In criminal matters, mediation is a restorative practice designed to solve the conflict between the parties involved. For a limited number of offences a criminal mediation agreement has the effect of preventing the initiation of criminal prosecution or ending criminal proceedings. This does not mean that parties may come to an agreement on the criminal aspects of the criminal proceedings as the legislator may seem to let us to believe. The only aspect on which an agreement may be reached concerns withdrawal of a prior complaint or reconciliation of parties in case of certain offences; these are impediments distinctively regulated in the mediation agreement. As a matter of fact, the consensus between parties in criminal proceedings, contained in the mediation agreement, exceeds the limits imposed by what is usually considered as the criminal aspect and the civil aspect of those proceedings. Through their will, parties may limit themselves to an agreement only on civil claims within criminal proceedings.
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Abuz în serviciu contra intereselor persoanelor. Complicitate la furt calificat. Concurs ideal. Fapta inculpatului care, aflându-se în exercițiul atribuțiilor de serviciu, cu știință, nu a îndeplinit acte pe care trebuia să le efectueze în temeiul îndatoririlor sale de serviciu, constând în aceea că nu a întocmit procesul-verbal de constatare a infracțiunii de furt calificat, nu a reținut autorul faptei și nu a sesizat organele de poliție, întrunește elementele constitutive ale infracțiunii de „abuz în serviciu contra intereselor persoanelor”, prevăzută în art. 246 C.pen. cu referire la art. 258 C.pen.
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Actul emis de Oficiul Român pentru Drepturile de Autor (ORDA) în vederea convocării părților în procedura arbitrală potrivit art. 1312 alin. (4) din Legea nr. 8/1996 nu are caracterul juridic al unui act administrativ în sensul art. 2 alin. (1) lit. c) din Legea nr. 554/2004. În succesiunea operațiunilor prin care se realizează negocierea metodologiilor la care se referă art. 130, 131, 1311 și 1312 din Legea nr. 8/1996, actul care produce efecte juridice îl reprezintă metodologiile negociate, iar activitățile anterioare, premergătoare, au valoarea juridică a unor operațiuni administrative sau simple operațiuni materiale care pregătesc, însoțesc adoptarea actului producător de efecte juridice. (Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal, Decizia nr. 59 din 10 ianuarie 2013)
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This paper approaches the theme of disuse as a modality of lapse of the subdivisions of the property right. If the property right, given its perpetuity, does not lapse by disuse, its subdivisions, which are mostly temporary, shall lapse by the failure to exercise the right. The sanction is expressly regulated by the present Civil Code in matters of usufruct and servitude and it is applicable, for identity of reason, to use and habitation. The study also examines the extent of interference of the disuse with the acquiring of the subdivided right by usucaption, as well as the consequences that it might have the legal nature of the limitation period acknowledged to the disuse period. -
This study has as object the logical and legal analysis of the conditions in which, according to Article 341 of the Civil Code, the incomes from work, the sums of money payable as pension within the social insurance system and others similar, as well as the incomes payable under an intellectual property right are considered common assets jointly owned by spouses. The study also includes analyses relating to the categories of incomes and sums that, under Article 341 of the Civil Code, are considered common assets jointly owned by spouses.
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Damages can be assessed by the court, by law or by the willful agreement of parties. This study analyzes the notion of damages, the conditions for awarding damages, as well as their assessment by the court and their legal assessment. The purpose of assessment of damages incurred by the creditor is that of reinstating the creditor to the situation in which it would have been found, if the debtor had voluntarily performed the obligations assumed by concluding the contract. Judicial assessment of damages is made by judgment and involves the judge’s examination of all the conditions for undertaking contractual liability, particularly with regard to the prejudice caused to the creditor by the debtor’s non-performance of obligations. Legal assessment of damages occurs in the cases regulated by Articles 1535 and 1536 of the new Civil Code and falls within the scope of obligations that have as object the service of granting a sum of money, to which the legislator also adds the case of obligations to do, which can be assessed in money.
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The higher interest of the child is the only finality of the actions of parents and the only criterion that justifies the intervention of the State in the relations between parents and children. In the new Civil Code the main concern of the Romanian legislator is to detension the relationships between spouses and their minor children, recognizing that the higher interest of the children is, first of all, that of being affected to the smallest extent by the effects of the parents’ divorce, thus allowing both divorced spouses to exercise their parental authority. By reference to the previous regulation – the Family Code, it is a radically different vision, „a true revolution in the field”, „a modern solution” according to which, after the divorce, the parental authority is not split up between the parents, but they exercise it together, as recommended by Article 18 paragraph 1 of the Convention on the Rights of the Child. The new Civil Code has established the principle of shared parental authority in order to allow the parents to continue to be, despite their separation, partners in a proactive and effective manner in all important decisions relative to the health, education, training and recreation of their common children, a principle that becomes thus an ideal to be achieved. This study analyzes these aspects.
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This article intends to analyze the provisions of the Civil Code regulating the legal status of nullities of marriage. After a brief introduction, in which general aspects of nullities of marriage are presented, follows a discussion on the legal regime of absolute nullity of marriage and the legal status of relative nullity of marriage from the point of view of those persons who can invoke the absolute or relative nullity, of the imprescriptibility of the right of action for establishing the absolute nullity of marriage and of the prescriptibility of the right of action for annulment of marriage, as well as from the point of view of the possibility to cover the absolute or relative nullity.
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The new Criminal Code of Romania brings numerous novelties within the scope of incrimination in the Romanian criminal law and, as compared to the previous regulation, it provides, in the text of Article 276, the sanctioning of the deed of a person who, during ongoing judicial proceedings, makes false public statements concerning the commission, by the judge or by the criminal prosecution authorities, of an offence or a serious disciplinary misconduct related to the processing of that case, in order to influence or intimidate such authorities.
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The preliminary chamber is a new, partly innovative institution for the national criminal proceedings. In fact, this is a qualitative transformation of the provisions of Article 300 of the Criminal Procedure Code of 1968. The preliminary chamber judge is vested with a control form with a specific object and the finality of this control consists in ordering the file for the trial stage on the merits. The jurisdictional control of the preliminary chamber falls within the scope of the entire criminal proceedings as a distinct stage, with its own individualized object.
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The social reality governed by the labour law has known a series of mutations, caused by economic and circumstantial factors, which may have an impact on the object itself of this branch of law. This paper aims to present these amendments, as well as some theories formulated in the Romanian and foreign legal literature on the future of the labour law and of its object. It is pointed out the danger of dissolution of the labour law, following to be later configured a series of options concerning the extent of protection offered by the labour law and its relation to other branches of law.
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This study examines a series of controversies concerning the operation of the penal clause in certain special situations such as: admissibility of penalties running after the cancellation/resolution of contract if, by assumption, the debt had not been yet fully or partly liquidated by the debtor; the issue of the possibility of reducing the amount of „clearly excessive” penalties by the court, if these penalties are „clearly excessive” [Article 1541 (1) b) of the new Civil Code]; the admissibility of the plurality of various clauses that provide penalties and others.
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The interdiction of the pignorative contract is a traditional solution for the Romanian law and corresponds to a real need to protect the debtor. However, this study attempts to prove that the solution is presently in disagreement with the legislative policy established by the new private normative order that encourages the diversification of the guarantee mechanisms. Presently, the function of this prohibition would rather be a theoretical one, not to affect the classical physiognomy of mortgage in the continental law system; but, in a legislative system which expressly establishes legal figures such as the sale with repurchase option or the sale with reservation of title and which seems to allow lawful transfers as a security measure, the interdiction becomes formal and it excessively complicates the situation of the participants in the legal circuit.
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The author intends to make a synthesis of the main amendments brought by the legislator to the civil liability institution, by adopting the present Civil Code, also analyzing the main sources of inspiration underlying the new regulation. The chosen approach is a comparative one, the civil liability institution being analyzed both from the perspective of the Civil Code of 2009 and of the Civil Code of 1864. The study aims to emphasize that the new regulation is a codification of the doctrine and of the case-law, in a necessary attempt to adapt the Romanian legislation to the soft-law standards of the European Union in this matter, as well as to the other international regulations.
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The institution of appeal in the interest of law has the role of unitarily ensuring the interpretation and implementation of law by courts of law. The legal nature of this procedure is not determined only by the criminal and civil normative provisions governing it. This study argues that this institution is constitutional in nature because, under the Constitution, the High Court of Cassation and Justice has the power to ensure the unitary interpretation of law by the courts of law. There are analyzed the consequences of the constitutional nature of this institution, the limits of obligativity of the settlements of matters of law given by the High Court of Cassation and Justice by means of the decisions ruled in these proceedings, as well as the ratio between the decisions of the Constitutional Court and the decisions of the High Court of Cassation and Justice respectively, ruled for a solution on the appeals in the interest of law. Recent case-law of the Constitutional Court reveals new aspects regarding the possibility of verifying the constitutionality of decisions ruled on this matter.
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In the practice of the courts in our country the punishment imposed for the offence of unintentional killing is, in most cases, imprisonment with suspended execution, even in the situations where the guilt rests solely on the offender or when there are several victims, a fact which can call into question the manner in which the principles governing the individualization of punishments are implemented, whereas, by imposing excessively lenient punishments, in relation to the seriousness of the facts, the desideratum concerning the educational and preventive role thereof is not achieved.
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The study has mainly in view the involuntary hospitalization of a person with mental disorders as a civil protection measure, as regulated by the Law on mental health and protection of persons with mental disorders No 487/2002, republished. In order to complete the characterization of this measure, the paper has also approached the aspects concerning the protection of the person suffering from mental disorders and that are governed by the Civil Code, but also by the new Criminal Code and the new Criminal Procedure Code.
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În funcție de întinderea efectelor juridice pe care le produc, actele administrative se clasifică în acte normative și acte individuale. Încadrarea unui act infralegislativ într-una dintre cele două categorii mai sus arătate nu se realizează prin „decuparea” unor dispoziții din acel act, afectând în acest mod caracterul unitar al acestuia, ci prin examinarea integrală a conținutului său, prin prisma trăsăturilor fiecăreia dintre categoriile în discuție (acte normative și acte individuale). Cu alte cuvinte, un act administrativ este fie normativ, fie individual, în funcție de întinderea efectelor juridice pe care le produce ca întreg, indiferent de conținutul concret al unei părți (de exemplu al unei anexe) a acestuia. (Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal, Decizia nr. 1718 din 26 februarie 2013)
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The Labour Code (Law No 53/2003) was radically amended by the Law No 40/2011. One of the amendments and supplements brought to the Code was the rephrasing of Article 31, respectively, in addition to the trial period, it was regulated, only for the graduates of higher education institutions, a probation period (of 6 months) at the beginning of activity in their profession, with an additional specification that the modality of performing the probation period would be established by a special law. In this respect Law No 335/2013 on performing the probation period for higher education graduates has been recently adopted in order to regulate the probation contract. In this study the author makes an analysis – partly critical – of this last-mentioned law.
