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The purpose of the present analysis is to determine the applicable legal regime to certain procedural acts made in bad faith in relation to the abuse of rights theory, and the lis pendens (same trial pending in the same time before two or more panel of judges) and joined cases institutions. The analysis started from a particular case in which a claimant filed two statements of claim having the same object in two considerably distant moments (7 years between them) against the same defendant. The only aspects which the claimant drafted differently in the second case file, in order to eliminate risk of identity, were the claims’ phrasing and some additional arguments in his favour which were not inserted in a proper form in the first case file. Nevertheless, through the second statement of claim, the claimant himself raised the lis pendens exception, in order to send the second case file in front of the initial judge and thus to overcome his incapacity to invoke additional arguments in the first case file. The court vested with the judgment of the lis pendens exception stated that the exception is applicable and in the case at hand. Thus, it has sent the second file to be analyzed together with the initial statement of claim. In addition to this, the court fined the claimant for misconduct represented by filing intentionally the two statement of claims having the same object. In consequence, in the present article we have analyzed the conditions to be met in order to state the presence of an abuse of rights in the light of the lis pendens and joined cases institutions. We have identified the purpose for the regulation of these legal institutions and the similarities and differences between them. In addition to this, we addressed the conduct which the court should have in order to correctly analyze the two statements of claim which are object of the lis pendens exception. Finally, our theoretical conclusions related to the three institutions were applied to our particular case, in order to prove the presence of an abuse of right. -
The present study is an analysis of the theoretical and recent judicial practice occasioned by the offences of trafficking in human beings and by proxenetism. His author has quoted relevant opinions from the specialized doctrine, succeeding in creating a complete picture of the two types of offences, and these elements were doubled by invoking some aspects of the judicial practice in the field. Some of the statements invoked in this study are criticized in an argumentative manner. The manner of conceiving the theme reveals its author’s intention to emphasize also those aspects that confer a comparison content of the offences trafficking in persons and trafficking in minors, on the one hand, and proxenetism respectively, on the other hand. In the course of the analysis, aspects related to other forms of exploitation of the person, as defined in the Criminal Code, were tangentially pointed out as well. At the same time, the article also contains some very pertinent de lege ferenda proposals, based on the good knowledge of the analyzed field. -
The regulation of the Civil Code on periodic ownership was preceded by the Law No 282/2002 and by the Government Emergency Ordinance No 14/2011, which have transposed the European Directives concerning consumer protection with regard to the utilisation or time-limited use of movable and immovable assets. As a legal modality of the ownership right, the characters of the periodic ownership, although qualified by Article 646 (1) of the Civil Code, which refers to Article 687 of the Civil Code, as a form of forced co-ownership, is delimited by it. The present study outlines these elements of difference, the specificity of periodic ownership as real right, the rights and obligations of the co-owners in the exercise of the prerogatives arising from this quality. Periodic ownership is a particular case of forced co-ownership, of a temporary nature, because several people successively and repetitively exercise the attribute of use, specific to the ownership right, over a movable or immovable asset, at fixed intervals of equal or unequal duration. This form of ownership implies an overlapping of the real right of each co-owner over the entire asset, but whose use is limited during one year to the duration indicated in the ownership title. The critical aspects concerning the relations between the co-owners are cantoned to the provisions of Article 691 (2) of the Civil Code on the sanction of excluding the co-owner who, through his conduct, causes to another co-owner a serious disturbance in the exercise of the prerogatives of the periodic ownership right. -
Ideea de reparație este, cum scria un autor, „una din cele mai vechi idei morale ale omenirei” (G. Ripert, La règle morale dans les oblig. civiles nr. 121, p. 223). În decursul timpurilor ea a suferit o serie de transformări, a parcurs mai multe etape, rezumate în cele 4 subtitluri ale studiului de față, care urmărește numai să schițeze în linii mari sensul acestei atât de interesante evoluții, care are semnificația drumului penibil al însăși ideei de Dreptate. Noțiunea de răspundere, în adevăr, se situiază în centrul tuturor instituțiunilor juridice care au de obiect reglementarea raporturilor între indivizi în societate, având un rol regulator și sancționator, întru cât tinde la păstrarea echilibrului rupt prin actele ilicite, fie că sunt violări de obligațiuni contractuale, fie că au caracterul și mai grav al călcării unor norme de conduită, pe pare societatea însăși le impune și îndeosebi acea normă negativă universală de neminem laedere, care constitue în esență principiul din care decurge însăși ideea de răspundere. -
The company’s entry into insolvency proceedings may be the result of an unfavourable economic situation or the abusive or negligent attitude of the governing bodies may contribute to this outcome. Sometimes people outside the company may have exercised a direct or indirect control of the company’s activities and be liable for insolvency. In these last hypotheses, the legislator chose to sanction insolvency peers who are held patrimonial alongside the insolvent society in order to satisfy creditors’ claims. As a rule, the former statutory administrator is the one who is called upon to respond to the mismanagement of the company’s business. Taking responsibility for this person implies the making of a claim for property liability which is the subject of a separate litigation in the company’s insolvency proceedings. This distinct dispute is settled in a contradictory procedure, with the administration of evidence in order to establish the meeting of the conditions of civil liability under Article 169 of the Law No 85/2014. When, prior to the opening of insolvency proceedings or during the course of the proceedings, whether or not an application for the liability of the statutory administrator was initiated, the question arises as to what happens when the death of the statutory administrator occurs. Such a request to obtain a patrimonial response in conflict with the heirs of the predecessor administrator may be made or continued or the liability is limited to the person of the deceased and a decision cannot be made to order the successors to answer for de cujus clerical errors. -
Arbitration is an alternative private jurisdiction to the State jurisdiction, in order to settle civil litigations. The private character of this jurisdiction is marked by the decisive role of the autonomy of will of the parties in the organization and conduct of arbitration, in the establishment of the arbitral tribunal, in which the arbitrators nominated by the parties are not designated by a public authority or by a public institution. The arbitrary source of the arbitration merges with the judicial nature conferred by the judgment pronounced, which enjoys the authority of res judicata and is executed in exactly the same way as any judgment pronounced by a state court. As a result, arbitration has a dual, contractual nature, through its source, and jurisdictional, through the judgment pronounced. In the present study several objectives have been pursued on the subject discussed, namely establishing the legal nature of the arbitral jurisdiction, the types of arbitration convention and its role, the elements of convergence between the arbitration clause and compromise, the formal requirements of the arbitration convention, its limits and the consequences and the exceptions from these limits in terms of trial, the conditions of validity of the arbitration convention, its effects and its effectiveness, the causes of cessation of the arbitration convention. -
The Romanian Civil Procedure Code currently in force regulates, among others, the cross-appeal and the caused appeal, but these remedies are not regulated in the hypothesis of the (extraordinary) second appeal. The new Romanian Civil Procedure Code (published on 15 June 2010, but not yet in force) enacts both the caused cross-appeal and the caused cross-second appeal. After presenting the new regulation, the authors consider that, while the cross-/caused appeal is justified (since the appeal is a devolutionary remedy), the cross-/caused second appeal is not justified, since it is not compatible with the specific nature of the extraordinary second appeal. -
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.
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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.
