-
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. -
The modality of enforcement through garnishment involves the existence of a legal relationship, in which the pursued debtor has the quality of creditor, and the garnishee has the quality of debtor, a legal relationship used by the pursuing creditor in order to realize the claim from the writ of execution. The garnishment knows two phases, the one of establishment and the one of validation, the second one intervening only if the garnishee fails to fulfil its obligations as a result of communicating the address for establishment of garnishment. The application for validation of the garnishment is a veritable application for summons, its finality being to obtain a writ of execution by the executing creditor against the garnishee. The study examines the defences which the garnishee can invoke in the court of validation, having regard to the legislative solution provided by the current Civil Procedure Code, according to which a garnishee is forbidden to file a contestation to the enforcement against the acts establishing the garnishment, the latter being able to use his defences only before the court of validation [Article 787 (5) of the Civil Procedure Code]. Therefore, the processual means of invoking the defences before the court of validation are analyzed, being questioned the admissibility of the garnishee’s filing of a counter claim aiming at the cancellation of the juridical act from which the relationship between him and the debtor arose. The defences of the garnishee are analyzed starting with the distinction between defences on the merits and the processual and procedural ones, in relation to the possibility conferred to the third party to invoke against the creditor all the pleas and defences that he may oppose to the debtor, to the extent that they are prior to the establishment of garnishment [Article 790 (3) of the Civil Procedure Code].
-
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.
-
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.
-
Under the old civil law, the registration of a property right in a land registry was a follow-up phase to the fulfilment of the obligation to give, that is, to transfer the property. In that sense, the registration thus carried out was only intended to ensure to third parties the publicity of the legal transaction transferring the right of property, making the new owner known, similarly to other law systems in Europe. Currently, under the Civil Code in force, things have remained relatively under the same conditions. The Civil Code regulated the constitutive system of registration rights in the land registry, but the implementing law postponed those provisions until the completion of the cadastral measurements. However, we consider an apriorical analysis of the constitutive system of rights to be helpful in anticipating and clarifying the legal issues that may arise in the future, but also in determining the legal nature of the interim period between the conclusion of the contract and the time of registration in the land registry, that is to say, until the time of complete fulfilment of the obligation to give. Last but not least, we will analyze aspects of the eventual liability that could be committed because of the faulty fulfilment of the obligation to apply for registration in the land registry, therewith identifying the persons who can apply for the registration and the persons who have to apply for it.
-
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.
-
Concluded on 12 December 2015, and entering into force on 4 November 2016, the Paris Agreement on Climate Change establishes the new international legal regime of the global response to threat of climate change. Contributing to the application of the Framework Convention of 1992, the Agreement adds the objective of adaptation and breaks the tradition of the Kyoto Protocol (1997), by imposing a new approach in this field, having in its center the limitation to 2°C and, whenever possible, 1,5°C of the growth of global average temperature, in relation to preindustrial levels, determined national contributions, and a transparency mechanism in ensuring the compliance of the self-assumed commitments. Accepting climate change as a „common concern of mankind” with scientific legitimacy of the conventional process and a specific legal value, being neither a „convention” nor a „protocol”, the Agreement has a universal nature, and it completes and transforms the international legal regime of the global climate action. Innovating principles are consecrated: intergenerational equity, climate justice or progression principle, new market mechanisms, with limited action, the facilitating mechanism, periodical evaluation, et al. An important role in imposing the new strategy and the new mechanism of action in climatic matters is held by the negotiations related to the post-2015 Conferences of Parties, designed to establish the „roadmap” and the proceedings for the preparation and enforcement, after 2020, of the Paris Agreement. Part of the new international conventional context regarding the new global challenges, the Agreement completes and updates the climate regime, as part of the international environmental law, bearing important specificities.
-
Acțiunea tatălui de a-l extrage pe fiul său minor dintr-un mediu impropriu dezvoltării armonioase fizice și psihice de la domiciliul stabilit provizoriu de instanța de judecată la mamă nu constituie infracțiunea de lipsire de libertate în mod ilegal, prevăzută de art. 205 alin. (1), (2) și (3) lit. b) C.pen., și nici infracțiunea de nerespectare a măsurilor privind încredințarea minorului, prevăzută de art. 379 C.pen. (cu notă aprobativă).
-
This study discusses a novel issue in the field of theory and case law of the criminal law. It deals with the necessity to apply the complementary punishment of prohibiting the exercise of the right to pursue the activity of babysitter in the case of the persons who, acting in this capacity, have committed the offence of theft of goods located in the building in which they had access. The author claims that such necessity exists because, in this way, those persons will no longer be able to commit offences acting in the capacity they had throughout the incidence thereof.
-
The attenuating circumstance of the challenge is provided by the Criminal Code in force in Article 75 (1) a). By the challenging act of illegitimate nature it is affected the physical integrity or dignity of the person, so that, although punished by the criminal law, the offender’s deed is merely a reaction, a disproportionate response to an illegitimate action or inaction. The challenge can only be retained if the conditions relating to the offence committed under the auspices of a powerful disorder or emotion, respectively the conditions relating to the challenging act are cumulatively met. Without claiming to exhaust the subject, the paper aims to emphasize also some controversies regarding: the proportionality and the time interval between the challenging act and the offence; the distinction between the challenge and some justificative causes or causes of non-imputability; the possibility of retaining the challenge concurrently with the premeditation.
-
Unpaid community work has received multiple valences in the Romanian criminal law system, representing either an obligation in the content of the probation measures or a way of executing the penalty of the fine or an obligation that accompanies the abandonment of the criminal prosecution. The complexity of the institution, together with its novelty, has generated a series of difficulties including in respect of the performance of the unpaid community work, this article emphasizing some of these difficulties and proposing solutions for their removal.
-
The Civil Procedure Code entered into force on 15 February 2013, when neither the fax nor the e-mail were unknown anymore in the field of communication. However, the procedural provisions have proven to be tributary to some classical origins, even obsolete in some cases. The interventions of the High Court of Cassation and Justice, of the Constitutional Court, in the matter of law analyzed by the authors in this article, did not have the role of modernizing nor of improving the efficiency of the act of justice. The given interpretations have taken into account the letter of the law and not its spirit, probably starting from the strict application of the procedural provisions. Without disregarding these principles, the authors criticize in an argumented manner the solution pronounced by the Decision No 34/2017 of the High Court of Cassation and Justice, the Panel for the settlement of some legal issues, ruling in the sense of qualifying the procedural act sent by e-mail or fax, after the court’s work schedule, but until 24.00 of the last day of the procedural term, as being done in due time.
