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This article examines the fiduciary property through a historical and comparative analysis of the legislation and doctrine of Québec, France and Romania. The contemporary fiducia ought not to be confused for the Roman fiducia, whose name it borrowed. As a result of the reception of the Anglo-American trust in the mixed legal system of the Canadian province of Québec, the fiducia has been the subject of subsequent legal transplants into the continental tradition. The Romanian legislator, inspired by its French counterpart, took over the restrictions brought to the fiducia in said legal system. In the matter of real rights, this legislative option also meant the rejection of the doctrine of an ownerless patrimony, an innovation of the legal system of Québec, in search of a continental instrument to replace the division of title between the legal holder (trustee) and the equitable one (beneficiary), as enshrined in the Common Law tradition. Commenting on the solutions proposed within French legal literature (including the classification as a method of ownership or even as a result of dismemberment), the author argues that only a combination of them may fully explain the mechanism of the fiduciary ownership. In essence, the fiduciary owner acts like a true owner, but by virtue of a title held under a resolutive condition, while the beneficiary enjoys a virtuality of law in his capacity as an owner under a suspensive condition. However, the constraints to which the right of ownership transferred to the trustee is subject, in terms of its exclusivity and perpetuity, may be explained by the fiducia contract itself, the effects of which are assimilated to the conventional limitation operated, for example, through an inalienability clause. In other words, the fiduciary owner may be considered an owner under a resolutive condition, yet he remains subject to the conventional limitations brought upon by the very nature of the fiduciary operation. -
The loss of the chance to obtain an advantage or to avoid a damage represents a new form of reparation of prejudice regulated by the Civil Code, enshrined by the provisions of Article 1385 (4) of the Civil Code, and represents a distinct category of prejudice reparable by engaging in tort civil liability, which concerns those negative consequences directly caused by the commission of an illegal act that consist in missing the real and serious possibility of the occurrence of a favourable event for the victim’s life, which could have brought him fulfilment in his personal or economic life by the carrying out of some projects. Therefore, the loss of a chance means the loss by a person of the possibility to achieve a gain or, as the case may be, to avoid a damage, which may result in causing a prejudice to that person. De lege lata, we mention that the prejudice caused by the „loss of the chance to obtain an advantage” can be invoked within the framework of tort (extra-contractual) civil liability, but also in the field of contractual civil liability whenever by the non-fulfilment of the legal or contractual obligations such consequences have occurred. This prejudice could be claimed both by the direct victim of an illegal act and by those close to them if they prove that they suffered, through ricochet, such a prejudice. In order to have a reparable prejudice, the chance of occurrence of the favourable event for the victim must be as real as it is serious, which is assessed differently, whether or not the victim was in the process of taking the chance at the time when the event that compromised the possibility to achieve it occurred, and this prejudice must be in a direct causal link with the illegal act committed by the responsible person. The assessment of the chance shall be carried out in relation with two criteria, namely the examination of the circumstances in which the illegal act was committed, on the one hand, and the special situation in which the victim was at that time, on the other hand. With regard to the features of the prejudice, we specify that it must be certain (certain, unquestionable) and real (undeniable, effective, indisputable), and not an eventual one (possible, probable), the loss, therefore, must be actual.
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Located within Chapter VI of the Criminal Code that criminalizes criminal offences against the person’s freedom, the criminal offence of threat provided by Article 206 appears on the background of the protection of the mental freedom of persons. The thorough analysis of the crime will reveal some aspects regarding different theories of interpretation of the law that can be objectified also in practical situations. Also, the interpretation of the criminal offence highlights certain aspects regarding the fear of the person, the manner of committing the crime, the threat of a harmful act, the correlation with the crime of outrage and judicial outrage, as well as some differences from the crime of blackmail. Therefore, in the framework of highlighting some opinions or observations on them, it can be delimited the offence of threat much easier compared to other offences, but it can also constitute a useful legal instrument during the stages of criminal liability of the offender, as well as for the improvement of the text of law by the legislator.
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The continuation of the criminal trial is a form of exercising the right of defence through which, in the cases expressly and limitingly provided by law, the suspect or defendant causes an increase in procedural activity after extinguishing the criminal action in order to unequivocally establish his innocence. This procedure, which is the subject of this study, was established to guarantee the presumption of innocence of the suspect or defendant in the event that the criminal action is extinguished as a result of certain impediments provided by Article 16 of the Criminal Procedure Code. These impediments are: the existence of a cause of imputability, the intervention of the pre-conviction amnesty, the intervention of the prescription of criminal liability, the withdrawal of the preliminary complaint and the existence of a cause of impunity. These situations are limited.
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The insurance market in Romania is an extremely complex field of legal regulation, which involves not only the observance of the principle of fair competition between the professional competitors, rivals on the market, but mostly the observance of some high standards of consumers’ protection, which are in a net inferiority ratio from a financial, informational and organizational point of view, in comparison with the policy issuers covering the compulsory civil insurance. From this perspective, the withdrawal of the operating authorization and the initiation of the bankruptcy procedure against the Insurance-Reinsurance Company City Insurance – S.A. raises a series of big problems for the clients of this insurer, not only from the point of view of the contractual relations established by the insurance contract, but especially through the procedural mode of action on the part of these consumers, so that the protection of their rights be full, as well as that the effects of the opening of bankruptcy procedure against City Insurance be mitigated, as much as possible, in relation to the already precarious situation of these clients. We intend, through this study, to highlight a series of pressing legal issues and to propose a series of solutions to the legal, substantive or procedural issues that arise from the withdrawal of the authorization of this important player on the insurance market from Romania. Thus, those entitled to recover the expenses occasioned by the repair of the cars involved in road accidents caused by the clients of City Insurance – S.A. have the way opened for a special and accelerated procedure for the recovery of these damages, without waiting for the opening of the bankruptcy procedure against this insurer and the registration in the amount of claims, extremely laborious and time-consuming legal procedures, which raise problems for the consumers who are victims of traffic accidents, and also for the clients of the insurance company who could see themselves engaged in legal actions intended to lead to the compensation of those injured in road accidents and that would endanger their personal patrimony, although they appear as contracting parties and beneficiaries of some perfectly valid RCA policies on the date when the damage was caused.
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This study aims to analyse the meaning of the term „reasonable grounds” enshrined in paragraph (2) of Article 11 of Law No 554/2004 on Administrative Proceedings. Neither the relevant framework law, nor any other regulation defines this concept, which creates problems in practice. The tendency in case law is to consider that „reasonable grounds” must be understood as a situation beyond the person’s control, insurmountable, in case of force majeure or fortuitous event. The present study seeks to correct this view and to promote the interpretation that the notion can be understood both in the sense mentioned above and in one where the parties use administrative methods to prevent a dispute from arising.
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Europe’s vision for 2030 relies on the impact of European and international actors’ policies on European local and regional governments while strengthening their local autonomy with a view to make it evolve their role and, why not, saving the European project. Local governments are the most able to exercise much more powers over their territories and to take responsibility for their execution; as for the Nation-State, it must be more focused on its roles as controller and evaluator of the local public action. In addition, local and regional governments can provide the necessary solutions that Nation-States cannot solve alone; to save money those international institutions impose. In order to solve the challenges of our time, a special attention is paid to state reform, the status of local public officials (dealing with issues related to basic public services) and the evaluation of the local public action by fighting against the formulas of the privatization of public action, while promoting, but framing them, the public-private partnerships.
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In practical situations with medical implications, the nature of the expertise must be established as a matter of priority. This matter involves a series of discussions on the differences between forensic expertise and specialized medical expertise. Nowadays, forensic expertise continues to be approached from an obsolete perspective, without detecting its limits in medical or legal matters. Highlighting the differences between the two categories of expertise and the shortcomings of the relevant legislation has major practical consequences. The utility of this study lies in terms of analyzing the legal significance of respecting the medical specialty and the object of the medical expertise – a new category of expertise, which seems to be of no practical use, despite its great importance. This respects the principle of medical specialty and takes into account also the level of development of medical science in the field of expertise. Adherence to incidental medical guidelines or protocols can be verified only by a specialized medical expertise, the only one able to analyze the compliance of the medical conduct. Instead, the limits of forensic expertise are revealed by its object, which is just another expertise in medical law, without encompassing the entire medical or legal matter, in a single specialty. The two types of work must be clearly delimited in judicial practice, for the full clarification of legal situations with medical implications, regardless of their nature.
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In this study, the author aims to highlight a number of limitations of the principle of availability in the second phase of the civil process, such as, for example, the need to approve enforcement by the court, the impossibility of representation of the legal person by another legal person, execution by persons or entities other than the creditor, as well as the imperceptible nature of certain goods. At the same time, this procedure cannot be initiated against those who enjoy immunity from enforcement, and the failure to register documents under private signature in the National Register of Real Estate Advertising was an impediment to enforcement until declaring the legal provisions of this obligation as unconstitutional. This presents the difficulties encountered by the holder of the writ of execution in his attempt to enforce it, as well as doctrinal and jurisprudential controversies, which led to the conclusion of the need to repeal the institution of approval of enforcement.
