-
The Romanian Civil Code of 2009 has taken over derogatory rules with regard to the nullity of company from the matter of companies with legal personality regulated by the Law No 31/1990, as well as from the European regulations in the field. In this way, the principle of safeguarding the company has acquired a general application in the matter of all companies, regardless of their type. The exceptional rules, which were initially applied only to the companies regulated by the Law No 31/1990, outlining the idea of an atypical nullity, have been thus transferred to the Civil Code, becoming general rules applicable to all private law companies. -
This article presents one of the substantial conditions required by law for the valid conclusion of marriage, that is the consent. After a brief introductory part, the conditions of consent to marriage are analyzed: the condition of existence of the consent, the condition of free expression of the consent, the condition of fully-expressed consent, the condition of public expression of the consent and the condition of direct establishment of the consent by the civil status officer. The final part is devoted to the conclusions drawn from this study.
-
The new Civil Procedure Code brings some elements of novelty with regard to producing the proof by expertise, also maintaining many of the solutions of the former legislation. This study presents the most important aspects with regard to producing the proof by expertise, using the doctrine and the practice from the period of application of the Civil Procedure Code of 1865 and attempting to interpret the elements of novelty brought by the current procedural legislation.
-
Throughout this study the author intends to emphasize some innovative aspects introduced by the new Criminal Procedure Code concerning the criminal prosecution stage, and also some legal provisions insufficiently conceptualized and corroborated with the regulation in its entirety. Aspects related to the referral and the jurisdiction of criminal prosecution bodies are analysed, as well as those pertaining to the beginning and progress of the criminal prosecution, and to the decision not to indict. The author also makes some proposals de lege ferenda meant, in his opinion, to remove or clarify those legal provisions which he appreciates as being contradictory.
-
The Romanian legislator has introduced an innovation in criminal proceedings matters: the institution of the suspect, which is questionable from several points of view. According to the provisions of the new Romanian Criminal Procedure Code, the suspect is the person about whom, from the existing data and evidence in the case, a reasonable suspicion arises that he has committed an offence provided by the criminal law; the quality of suspect is acquired only when the prosecutor orders that the criminal prosecution – which had previously started only with regard to the deed (in rem) – be further conducted against that person. The suspect is not a party in the criminal proceedings, but a main subject to proceedings. In this study, the authors analyze the institution of the suspect, by presenting some critical aspects and by proposing the reconsideration of its regulation.
-
This article makes a brief presentation of the new basic principles of Romanian criminal proceedings, which represent general rules contained in the legislation of the Member States of the European Union, considered to be the basis of modern criminal proceedings. The validity and efficiency of these rules have been tested by the judicial practice in France, Italy, Belgium and others and by the case-law of the European Court of Human Rights.
-
In this study, the author examines the incidence of the provisions of Article 1221 et seq. of the new Civil Code (concerning the lesion) in the field of „business law”. In this respect, after a series of general considerations on the lesion in the context of the new Civil Code, as well as in the context of clarification of the concept of „legal relationships arising in the business environment”, the author examines, in detail, the problems of contracts in the business environment, by emphasizing, within the latter, their division into balanced contracts and imbalanced contracts. Such being the case, the author concludes that, in principle, the lesion is inapplicable in case of balanced contracts, but is incidental, as a rule, in case of imbalanced contracts.
-
This study, while indicating the absence of systematic doctrinal concern in relation to the meaning of the term „child” used in the Constitution, in the Civil Code and in several other internal or international normative acts, suggests to approach this term, lato sensu, as relative of first degree in the direct line of descent and, stricto sensu, as minor person without full capacity of exercise. Likewise, the author analyzes the definition given to this term in Article 1 of UNO Convention on the Rights of the Child and he presents some of its consequences on the internal regulations in the field.
-
While examining the effects of the information procedure on the advantages of mediation in relation to the running of the prescription or limitation periods and corroborating the provisions of Law No 192/2006 referring to mediation with the provisions of the Romanian Civil Code in matters of prescription or limitation periods, this study reaches the conclusion that the procedure on the advantages of mediation prevents the running of the substantial prescription period and limitation period established by the legal provisions (which protect a private right) or by the convention of the parties when these have not began to run, and, respectively, it suspends the course of the prescription/limitation when these have began to run, for a period of 15 calendar days from the date when the prescription/limitation began.
-
The author deals with the jurisdiction for carrying out forced pursuit acts from the perspective of the provisions of Article 651 (2) and of Article 818 (1) of the new Civil Procedure Code and analyzes the problems of selling a building in an auction „at the highest offered price”. The analysis is carried out in the light of the condition of price seriousness required in matters of sale, where the serious price is the one which constitutes a sufficient cause of the obligation undertaken by the seller to transmit the property right on the asset that is the object of sale and it is transposed into the existence of a ratio between the quantum of the price established by the parties and the real value of the sold asset, without however claiming an equivalence between the price and the value of the asset.
-
This study is meant to clarify the content and the meaning of legal norms devoted to the protection of databases. The author presents and subjects to analysis the points of view of prestigious authors and his own relative to the legal nature of the rights arising from the creation of databases. This paper examines the elements of the legal relationship arising from the database creation: the subjects, the object and the content of the relationship, emphasizing the particularities and the specificity that shape its identity. However, the topic discussed is connected to the European case-law in the matter, precisely to highlight the manner in which it is raised the question of the relationship between the protection of databases in the area of copyright and through the sui-generis right of the creators of these intellectual creations. The author analyses databases in order to underline the fact that they are man-made creations, with an important role in the economic and social life and are more and more frequently exposed to unfair competition. Moreover, the article also offers starting points for specialists called to study thoroughly less known aspects of the legal protection of databases.
-
In negotiated contracts where parties have established clauses by mutual agreement so-called „abusive clauses” may exist. The abusive character of such clauses may be invoked in negotiated contracts on the ground that one party is always stronger than the other. The penal clause in negotiated contracts may be considered abusive if penalties are excessively high in relation to the extent of the damage or with regard to the value of the delivery. This study examines abusive clauses and abusive penal clauses in exclusive distribution contracts, in leasing contracts and in administrative contracts.
-
While authorities with jurisdiction in the management of European funds exercise control and investigative activities they issue documents which, although they enjoy the presumption of legality like any administrative act, may give rise to litigations. Based on the special normative acts relevant for the management of European funds and on Fiscal Procedure Code, this paper analyses documents issued by such authorities, their legal nature, as well as the procedure for contesting such documents, as a guarantee of the principle of free access to justice.
-
Although the science and the practice of law have always enjoyed the consideration and the appreciation of society, their academic recognition remained, mostly, a desideratum. As a complex phenomenon: art, technics and science at the same time, the law represents complexity and difficulty in perceiving and affirming its status of scientific and cultural science. That is why, although the faculties of law were among the founding faculties of universities, the lawyers and their discipline came relatively late in the dome of academies. In Romania, the Romanian Academy, created in 1866, was initially concerned with the study of the national language and history, hardly opening its doors for sciences, in general, and social sciences, in particular. Facing this „conservatorism” the representatives of different sciences have opted to create some specialized academies, such as the Academy of Sciences (1936) or the Academy (Institute) of Moral and Political Sciences (1938). It was only in 1948, by creating the Division of legal and economic sciences, when the law received express recognition among the concerns of the high academic forum, but the lawyers are still under-represented within it. The increasing role of law in post-modern society and asserting its status as social complex science impose the revaluation of its academic status as well.
-
This paper deals with contesting protective measures taken during criminal proceedings at the request of the civil party. Authors consider that it is the right of the civil party to request for such measures to be taken with regard to the assets of the defendant and to those belonging to the party liable under the civil law. Moreover, the civil party can contest the manner in which the court applies this request.
-
The author draws attention on the phenomenon of „money laundering” in the context of the necessity to combat cross-border organized crime and crime in general, in the context of the newest international instrument in the matter, the Convention of the Council of Europe on Laundering, Search, Seizure and Confiscation of Proceeds from Crime and Financing of Terrorism, adopted in Warsaw on 16 May 2005 and ratified by Romania through Law No 420/2006. This is a timely contribution that also presents the recent case-law of the High Court of Cassation and Justice in the field.
-
Examinând conținutul unei hotărâri pronunțate în cadrul regulatorului de competență în cazul unui conflict negativ de competență, se constată că aceasta nu soluționează fondul unei cauze, ci doar un incident procesual în care stabilește care din cele două instanțe va trebui să judece, potrivit dispozițiilor legale. Cum, în cazul analizat, titularul sesizării solicită interpretarea unor dispoziții procedurale în scopul determinării instanței competente teritorial să judece o cerere de încuviințare a executării silite imobiliare, se constată că stabilirea competenței nu reprezintă o chestiune de care să depindă soluționarea pe fond a cauzei. În consecință, se constată că mecanismul de unificare a practicii judiciare reglementat de dispozițiile art. 519 și următoarele din Codul de procedură civilă nu poate fi uzitat atât timp cât legiuitorul a limitat, prin condiția restrictivă de admisibilitate analizată, rolul unificator al instituției juridice a hotărârii prealabile numai chestiunilor de drept care conduc la dezlegarea în fond a cauzei sub aspectul statuării în privința raportului juridic dedus judecății. (cu notă critică)
-
Raportul de evaluare întocmit de inspectorul de integritate în temeiul dispozițiilor art. 17 din Legea nr. 176/2010 privind integritatea în exercitarea funcțiilor și demnităților publice, ca parte a procedurii privind activitatea de evaluare a averii, nu se poate contesta direct la instanța de contencios administrativ, el neavând trăsăturile unui act administrativ, întrucât nu produce efecte juridice prin el însuși. Acest raport constituie un simplu act de sesizare al Comisiei de cercetare a averilor prevăzute în Legea nr. 115/1996, ce poate fi contestat în fața instanței de contencios administrativ doar odată cu actul de finalizare a procedurii desfășurate de această comisie.
-
Prior to the referral to the court by filing an application for summons, in cases where the law expressly provides it, the applicant must go through a preliminary procedure, which has the meaning of an attempt of extrajudicial resolution of the legal disagreement. The current regulation in this matter (Article 193 of the Civil Procedure Code) is significantly superior to the previous one. The interpretation and the application of these provisions require some specifications or nuances, which are subject to this study. -
The article analyzes the qualification of the appeal on law in civil disputes where the judicial remedy of appeal ex novo is not opened, such as the waiver of judgment and the waiver of the claimed right, where the judgment is only subject to the appeal on law. The appeal on law promoted in administrative disputes is also analyzed. The author comes to the conclusion that, even when the judicial remedy of appeal ex novo is suppressed, the appeal on law preserves its nature of extraordinary remedy.
-
This article analyzes amendments brought to the institution of authority of res judicata by the new Civil Procedure Code, in relation to the manner in which the doctrine and the case-law have determined the development of this institution.
-
This study is mainly devoted to the analysis of provisions of the current Romanian Civil Code (Articles 441–447) referring to „medically-assisted human reproduction with third donor” and to some „doctrinal reactions” in relation to the new regulation. Likewise, where deemed appropriate, some opinions have been substantiated and various de lege ferenda proposals have been made.
-
This study analyzes the regulations pertaining to causes of revocation of donations, regulations which entered into force at the same time with the implementation of Law No 287/2009 on the new Civil Code. The starting point of this paper is the fact that donations and liberalities have been under the influence of special legal regimes, different from those of onerous legal documents. Even though donations are, in principle, irrevocable legal acts, the legislator has instituted special cases of revocation thereof, in order to avoid or limit prodigality acts and undesired effects on the interests of the donor or of the persons close to this donor. It was particularly on these causes of revocation of donations that the author focused his scientific endeavour, by analyzing doctrine and case-law and by formulating his own opinions and de lege ferenda proposals, so that legal rules in the examined area be harmonized with the public order interests. The study also relates to the new criminal regulations (the new Criminal Code) as regards the criminal acts of revocation of donations for ingratitude.
-
The article analyzes one of the circumstances which prevents the conclusion of marriage, i.e. kinship. Following a brief introduction, the author focuses on impediments to marriage resulting from natural kinship, kinship resulted from adoption and kinship in case of medically-assisted human reproduction with a third donor. The final part is devoted to the conclusions which can be drawn from this study.
-
This paper summarises particularly complex issues raised by the offence of concealment. It begins with an analysis of the rational value of amendments brought to the offence of concealment (Article 270 of the new Criminal Code) and continues with the analysis of other problems raised by this offence, which either have not yet found a satisfactory solution or have solutions, but they are not known, understood and unanimously adopted in the criminal law practice.
-
If in ancient times it was often confounded with legal science and constituted a genuine source of law, gradually, case-law transformed into a form of explanation, addition, and elimination of obscurity of the legal text, by the judge, in the process of interpreting and enforcing the law. At the same time, its relations to the doctrine have also evolved, the latter being called upon today to decode case-law rules, assuring their clarity and complete expression of their meanings, from the „inside” of the process of creating law. Case-law phenomenon is an object of analysis for the legal science, in terms of external factors that configure and influence it. The case-law revival noticed partially and specifically after 1989 also in Romania, given the transition, is expected to fully manifest itself in the following period, just after the end of the legislative reform, realized by the adoption and entering into force of the new codes.
-
Like other modern enactments, the current Romanian Civil Code provides for a series of „rights of the personality”, which include, inter alia, the right to honour. The authors of this paper make a series of considerations in relation to this right „to honour”, in relation to both the Romanian legislation and legislations in Western Europe, taking into account that, in the Romanian legal doctrine, the right in question has been less studied prior to the entry into force of the current Civil Code (1 October 2011).
-
The author criticizes a decision of the Bucharest Court of Appeal which, having to settle a case concerning dismissal determined by the dissolution of the workplace of an employee for reasons not related to him/her, stated that the dismissal is lawful even if it was not the position of the dismissed employee that was dissolved but another position of the same kind, but, on the other hand, it has decided that the measure in question is unlawful on grounds of not being „serious” since the employer (a ministry) has not proven the objective criteria that should support the seriousness of the applicant’s removal from the position held (the reason why the employee was not good enough or sufficiently trained in the profession in order to be maintained in activity or why the other employees maintained in activity were better suited, professionally or otherwise, as compared to the ones selected for dismissal).
-
Starting from diametrically opposed solutions given by courts, the author analyzes the right to additional payment for risk provided by the Sylvic Code, based on provisions of Article 127 (5) and considering the lack of any methodology to provide categories of beneficiaries and specific conditions for granting such additional payment and assesses the impact of the lack of such a methodology upon the right provided by the law. The conclusions of the author are that, even though the mentioned methodology is lacking, those concerned have the right to receive the additional payment in question.
-
The new regulatory framework, established in the matter of accelerating the process of restitution of real estate properties and of the compensatory measures by the Law No 165/2013 on measures for the finalisation of the process of restitution, in kind or by equivalent, of the buildings abusively taken over during the communist regime in Romania, also includes some regulations concerning the cases and the modalities of cancellation of the titles of property issued by the county commissions of land resources. In the ambience of the new regulatory framework, this study analyzes the regulations established by the Law No 165/2013 in the matter of cancellation or change of titles of property issued by the county commissions of land resources, as well as in the matter of cancellation or of changing the decisions issued by these commissions, which stood as basis for the issuance of the title of property. The analysis of these issues has been made by reference of the provisions of the Law No 165/2013 to other provisions established by the Law No 18/1991, the Regulation for application of this law, as well as by reference to the special normative acts of reparatory nature.
-
Given the absence of solutions expressly provided by law, national criminal courts now apply, with more courage and in the interest of justice, fundamental principles of criminal process as laid down by the Constitution, the Criminal Procedure Code and the practice of the European Court of Human Rights, which provides free access to justice, including judicial control on the acts of the prosecutor. In this context, the old adage „Justice is blind” may be replaced with a new concept, better suited to new national, European and international economic and social relations – „Justice is not always blind”.
-
The Treaty on European Union includes not only the core of the Community rules, but also references to the necessity to bring some amendments to the national legislation of Member States in accordance with these rules. Complying with this requirement, the Romanian legislator constantly brings amendments which, in criminal matters, involve an interdisciplinary approach, imposing compliance with general principles of law and with principles specific for the protection of human rights and for European Union law.
-
After a general presentation of the institution of house arrest, the author analyzes a specific aspect referring to this new preventive measure provided in the new Criminal Procedure Code, namely the maximum duration of house arrest pending judgment at first instance.
-
-
Brokerul de asigurare, care are și calitatea de mandatar al unei întreprinderi de asigurare străine, fiind împuternicit de aceasta să soluționeze cererile de despăgubiri în eventualitatea accidentelor de circulație produse de autovehicule asigurate în străinătate, nu este parte la raportul juridic obligațional născut prin producerea faptului delictual. Astfel, întrucât brokerul de asigurare este terț față de contractul de asigurare în temeiul căruia au fost solicitate despăgubirile, acesta nu poate fi obligat în nume propriu la plata despăgubirilor. (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 2156 din 30 mai 2013)
-
This study sets some reference points for a new institution regulated by the Criminal Procedure Code – the judge of rights and freedoms – from a perspective which stresses its role in protecting the rights and fundamental freedoms, as they are established by the Constitution and by the international treaties on human rights to which Romania is a party.
