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In this article, the author critically examines matters of criminal procedural guarantees for the injured person, the injured party or civil party, stressing their importance in the administration of criminal justice. In this context, topics on the rights of victims are depicted inspired from the principle of equality of arms, inferred from the (European) Convention on Human Rights and Fundamental Freedoms, the author making some suggestions on repairing the damage caused as a result of the offense. -
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The accession of Romania to the European Union on January 1st, 2007 also involved the need for harmonization of national legislation with the European one, which, inter alia, led to the elaboration of a new Criminal Code. This regulation covers some new elements, including the crime of harm to the unborn child, as provided for in Article 202 under the new Criminal Code, as an integral part of Title I of the Special Part dedicated to crime against the person. As stated in the Explanatory Memorandum to the new Criminal Code, by criminalizing such acts it was intended to cover a legal vacuum, i.e. to protect the fetus from the moment of the commencement of the delivery process until completion thereof. In the study hereby, the author examines from the criminal doctrine perspective, but also in terms of medical science, the meaning of the term fetus and the phrases “during childbirth” and “during pregnancy”, advancing some de lege ferenda proposals. -
This article presents the new criminal provisions relating to the cancellation and revocation in the cases of waiver of application of punishment, postponement of application of punishment and the suspension of the execution of the punishment under supervision. The author also proposes a new mechanism for the application of punishment if there is a concurrence between a cause of cancellation and one of revocation of the postponement of the application of punishment or of the suspension of execution of punishment under supervision. -
This study proposes a comparative analysis of the main economic and financial offences from their regulatory perspective, given the significant amendments of the Romanian criminal legislation occurred starting with 1 February 2014. The author makes a presentation of how the incrimination of these criminal acts has been amended, regardless of the relevant provisions, the Criminal Code or the special laws. He insists on the situations where amendments of substance occurred and it is analyzed their opportunity, as well as the effects reflected by the judicial practice. Similarly, critical notes are exposed, with the necessary arguments on some of these legislative amendments. -
The study deals with the analysis of innovative legal solutions related to the divorce proceedings covered by Law No. 134/2010 on the Code of Civil Procedure. Thus, it was envisaged the establishment of territorial jurisdiction of the Court in relation to the residence of the spouses or of one of them, filing of the action for divorce by the husband who, legally incapacitated, has discernment and the prosecution of the action for divorce by the plaintiff husband’s heirs deceased during the trial. -
In this analysis, the author carries out a study of the continued offence regulated by the Criminal Code of Romania, covering both theoretical and practical aspects, proposing different solutions in the determination of legal classifications according to the concrete circumstances of the cases. The analysis proceeds from the regulatory framework of the continued offence, continues with doctrinal references and argues or counter-argues with its own arguments, expressing the author’s own opinion. Particularly, when the conditions of the continued offence are analyzed, the one that regards the factual homogeneity of the material acts that form the legal unity of the offence is emphasized. -
One of the forms under which it is presented the right of joint ownership on forced quota-shares is represented, in the conception of the legislator that has created the current Civil Code, also by the periodic ownership. Placing this form of joint ownership within the joint ownership on forced quota-shares is the creation of the legislator, but it is not sheltered from criticism. Among the issues raised by the regulation of the periodic ownership in Articles 687–691 of the Civil Code is also the obligation of compensation and the exclusion, legal provisions upon which the authors of this study have insisted. The provisions of Article 691 of the Civil Code are criticizable both in the way they are formulated and in respect of the effects that the legislator has pursued. -
The authors review in this study the legal regime of receivables’ discounting, both in the Civil Code (of 1865, still in force), and in other special laws, as well as in the Romanian new Civil Code (Law no. 287/2009) or in the Romanian new Civil Procedure Code (Law no. 134/2010, neither law has entered into force yet), also considering the opinions expressed in the doctrine and in the relevant decisions of the case law. In this context, the authors reach the conclusion that indexation is compulsory, as it is in line both with the provisions of the Constitution of Romania and with the (European) Convention of Human Rights and Fundamental Freedoms. -
Law no. 272/2004 regulated – in the aggregate – the legal regime of protection and promotion of the rights of children in Romania. In the research hereby, the author conveys some viewpoints on the rules of law mentioned in relation to the exercise of parental rights and responsibilities when determining the special protection measure of placement by the child protection committee, committee settled by the same law. -
The autonomous collaterals are regulated, for the first time, by the new Civil Code, within the personal collateral, together with the parent guaranty. The law allots them a small portion, equally essential and simple, so that they may have substance and legal identity. But their legal regime can be essentially revealed through the extension of the analysis to the regulations in the field. The uniform rules for demand guarantees constituted by the International Chamber of Commerce from Paris and the Convention of the United Nations Commission on International Trade Law with respect to the independent guarantee and the stand-by letter of credit. The present paper analyses the legal regulation, the concept and the legal category of the autonomous collateral. The author’s objective is that of revealing its complexity as a legal fundamental instrument in the field of internal and international business. -
The author notices that the new definition of the material element of the objective side of the crime is clearer than the current wording. Unlike the current regulation regarding the sexual intercourse, of any type, in the new wording of the incriminatory rule, the lawmaker refers distinctively to the sexual intercourse, the oral or anal sex, in case of the form of crime, and distinctively to any other acts of vaginal or anal penetration, in case of the assimilated form of crime. The passive subject of the crime may be, in the new wording of the incriminatory rule as well, any person irrespective of gender, age, civil status, including the perpetrator’s wife. The aggravation of the crime is triggered by six aggravation causes, unlike the four in the current Criminal Code, following the provision of new forms of aggravation or the redefinition of aggravation causes in the case of rape against a relative in direct line or against a brother or sister; rape against a minor under 16 years of age; rape committed for producing pornographic materials; rape resulting in the injury of the victim. The incrimination of attempted rape proves the inconsistency of the lawmaker. The system of penalties provided by the new Criminal Code raises the question of enforcing the more favorable criminal law.
