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This study, having as theme general and special observations regarding the new Romanian Civil Procedure Code (Law no. 134/2010), after some brief preliminary observations, proceeds to a more thorough analysis of the fundamental themes of this Code, namely: the accentuation of procedural liberalism; the quality of the civil procedure law; the right of access to justice; the uniform interpretation and application of the law by the courts; celerity in the civil trial; accentuation of the effectiveness of remedies at law; higher-quality valorization of enforcement orders. -
The author shows that, in the new regulation, the essential characteristic regarding the social danger entailed by the criminal action committed was removed from the definition of the crime. Instead, two new essential characteristics were introduced, namely: the action committed, which is provided by the criminal law, is unjustified and not imputable to the person having committed it. Also, reference is made to the correlation between the institution of the action provided by criminal law and the institution of the crime and the essential characteristics of the crime are examined. -
This study represents, in its essence, a micro-monograph regarding the right to image, a component of personality rights. In this respect, following a presentation regarding the “personality rights, in general”, the authors examine in detail the issue of the right to image (notion, basis, autonomy of the right to image, consent to the reproduction of one’s image, limits of the right to image, image contract, extinguishment of the right over image).
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In this study, the author examines the constitutional and legal statute of the Romanian Court of Accounts, according to art. 140 of the Constitution of Romania (revised and republished on 31 October 2003), corroborated with a series of provisions contained in Law no. 94/1992 for the organization and operation of the Court of Accounts, as republished, for the second time, on 29 April 2009. To this effect, the authors examine the constitutional and legal statute of: the counselors of accounts; the personnel making up the executive management of the Court of Accounts and the Audit Authority, as well as the specialized personnel of the Court of Accounts (external public auditors). -
The continuous evolution of the social-economic life and the diversification of the forms of action of criminal groups have required, both as regards criminal offences and domestically, the regulation of the criminal liability of the legal entity. Since crime, in general and economic-financial crime, in particular, is continuously growing, the indictment of the legal entity as active subject of the criminal offence was considered useful. The Romanian lawmaker also did this, first, by amending the Criminal Code in operation by means of Law no. 278/ 2006 and then by drafting a new Criminal Code, according to the European democratic legislation. Given the importance of this institution for the Romanian criminal legislation, we considered useful to make a demanding radiography of this issue.
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In this study, after a brief introduction on parental rights and obligations, the author examines, in the light of the legislation currently in force (Family Code – amended by Law no. 288/2007, and Laws no. 272/2004 and no. 273/ 2004), and in the light of the future Romanian Civil Code (published on July 24, 2009 but not yet into force), the status of parental rights and obligations, provided that the child has been legally entrusted to other persons, discussing, in this manner, with priority, the extent to which the parents are entitled to provide their consent to the marriage of their child (if the child is a minor) or to his/her adoption.
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Taking into consideration the provisions of art. 1385, paragraph 4 of the new Romanian Civil Code (adopted and published in 2009, but not yet effective), according to which “if the illicit action caused the loss of the opportunity to gain an advantage, the remedy shall be proportional to the probability of gaining such advantage, by also taking into consideration the circumstances and the actual situation of the victim, and by considering the rich French case law in the field (in the matter of medical liability) the author believes that, in Romania, tort liability could exist even at present (in particular in case of malpractice, as regards medical liability) following the damage caused by losing the opportunity to gain an advantage. For this reason, the author presents in detail the compensation conditions for such damage. -
The above study examines the issue of the articles of association and the nullity of the legal entity in the new Romanian Civil Code (adopted by the Parliament, published in the “Official Journal of Romania”, but not yet effective). In dealing with the above-mentioned issue, the author examines the nullity of a company’s articles of association (in Law no. 31/1990 on companies and in the new Civil Code), the effects of a company’s nullity, the legal entity’s nullity – in the current law and in the new Civil Code –, the effects of the legal entity’s nullity, as well as the European source of the legal entity regulation in the new Civil Code (Directive 2009/101/EC, a directive abrogating and replacing the Directive 68/151/EEC). -
Promoting the conception according to which material evidence should be exclusively reserved for civil procedure as evidence is fulfilling its main role in trial, the author stresses that the new Civil Code achieves the unification of evidence regulation in civil matters, by including this regulation in art. 243-382 of the new Civil Code, a salutary solution, in accordance with the majority opinion of the doctrine. The Legislator, based on the new Civil Code, preserves part of the evidence regulations of the previous Code, but also embracing solutions adopted in the Civil codes of other states, such as, for example, the French, the Canadian province of Quebec or the Swiss Civil Code. Of course, the new Civil Code includes innovative solutions that the author deems useful and necessary, such as those relating to admitting as evidence documents stored on computer media or those regarding material means of evidence. -
The article approaches the offence of “patrimonial exploitation of a vulnerable individual” under the provisions of Article 247 of the new Criminal Code. On these lines, the author conducted a thorough review of its legal content and highlighted issues of procedural nature. Likewise, there are also expressed critical opinions on how the legislature sought to regulate the offence’s conditions of existence, likely to severely limit its factual scope thereof. -
The author considers, in this study, that, in case of medical malpraxis in the public health system, it is the Romanian state which has patrimonial liability to the victim patient (through the medical service provider – public institution), according to the Administrative Dispute Law no. 554/2004, and the doctor in default (employee of the medical service provider) shall have a patrimonial liability to such provider (his/her employee), as set forth by article 270 et seq. of the Labor Code. -
With the view to overcome the lack of celerity in the conduct of criminal trials, the initiators of the new Code of Criminal Procedure explicitly intended to depart from the extraordinary remedy of appeal for annulment. However, although the code was adopted under the Government’s liability, the legislature has maintained this opportunity to repair final criminal judgments affected by errors. Code’s editors have thought abandon of the litigious remedy, transferring its role and cases of its raising to other extraordinary remedies. But the author points out that the experiment has not been designed fully rigorously, so that a number of hypothetical situations, consistent enough, remained outside the cases provided by law for the performance of extraordinary review procedures. Under the new code system, the appeal for annulment was integrated in a chapter distinct from the review procedures chapter, i.e. after the appeal, as an emphasis on the concept of being within reach of the parties to pursue against final judgments passed in the court of this relevant resort.
