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The proposed study is a systematic and systemic analysis of the rules of the Civil Code established for the „possession of status”. While reviving and modernizing the archaic regulations of the Romanian Civil Code of 1864, the present Civil Code establishes the meaning and the content of possession of status, as well as its effects where it is consistent with the data written down in the birth certificate concerning the filiation of the child to the mother. In this context, it is also pointed out the existence of some issues which require normative correlations (even among some paragraphs or sentences within the same article), legal and logical improvements and compatibility adjustments with the general principles of law. -
Pursuant to Article 1541 (1) b) of the new Romanian Civil Code, which entered into force on 1 October 2011, the court may reduce the amount of the penal clause if „the penalty is clearly excessive as compared to the prejudice which could have been provided by the parties upon the conclusion of the contract”. The author considers that the text is incomplete, in the sense that it does not specify whether the reduction of the penalties may be ordered by the court only on the debtor’s request (the system referred to in BGB – the German Civil Code) or also ex officio (a system presently regulated by the French Civil Code). The author believes that the reduction of the amount of penalties in question can not occur ex officio because fundamental principles of civil proceedings (especially the principle of availability) are violated. Finally, the author proposes an amendment of Article 1541 (1) b) of the Civil Code in order to be expressly stated whether the reduction of penalties occurs only on request or also ex officio.
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The study presents the new provisions of the Civil Code on tort liability for the act of the animal and the act of the thing by establishing the scopes of these liability hypotheses. Along with the traditional rules established in the former Civil Code, as innovative elements, the legal guard was defined, in Article 1377, and provisions concerning the liability in case of collision between motor vehicles and the liability for things that fall down or are thrown out of a dwelling place owned with any title were introduced.
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This article emphasizes the specific elements of the repurchase agreement as regulated in the new Civil Code. In order to achieve this goal, the author first engages in a general characterization of the type of contract under examination, in the light of specific elements concerning the contracting parties, the object of contract and the time of fulfilment of some obligations undertaken by the parties. The study further defines the concepts „repurchase” and „reverse repurchase” and delimits the repurchase agreement from other types of similar contracts, thus configuring more clearly the analyzed convention. Another specific element of the contract under scrutinity is its sui-generis legal nature, which the author explains since there isn’t an unanimous opinion on this issue in the doctrine. At the same time, the specificity of the repurchase agreement is emphasized by dealing with its main effects: the double transfer of property, the transfer of ancillary rights, the obligation of the buyer to exercise the option, as well as the obligations of the seller to make available to the buyer the funds necessary for exercising the right of option and for making the payments. Last but not least, the specificity of this type of contract is also revealed by reflecting the differences among the liquidation, the prorogation and the renewal of the convention under debate. The study presents the points of view expressed in the specialised literature on the studied matter, as well as the author’s opinions on the controversial legal issues in the reference space.
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In this study, the author expresses a series of personal considerations on the civil liability of the transport operator (the carrier) in the regulation of the new Romanian Civil Code, specifying that, against the recipient, dispatcher and passenger, the mentioned liability is contractual liability, while against third parties it is tort liability.
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The author analyzes the procedure to be followed on the hypothesis that the applicant proves that it is impossible for him to trace the domicile of the defendant. The principle of settlement of the trial within due and foreseeable time, the necessity of going through the procedure preliminary to the first hearing term instituted by law, the safeguarding of the right to defense of the respondent are taken into consideration. There are also examined the modality and the time when the law court designates the special guardian to represent the interests of the respondent, starting from the regulations of the Civil Procedure Code in this matter.
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In this study the author examines the provisions of the new (Romanian) Civil Procedure Code referring to the verification of the application for summons and its regularisation by the law court, in the light of the procedures of the same code which regulate the nullity of procedural acts.
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Law No 165/2013 on the 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 institutes a new regulatory framework in the matter of acceleration of the process of restitution of real estate property, in agreement with the principles stated by the (European) Convention for the Protection of Human Rights and Fundamental Freedoms and by the case-law of the European Court on Human Rights. In the ambience of the new regulatory framework instituted by the Law No 165/2013, this study analyzes several issues regulated by the new regulatory framework by referring to special normative acts which came into force before Law No 165/2013. Thus, some aspects referring to the powers of the entities vested with powers for the application of the reparatory laws in the matter of buildings (land and constructions) are analyzed, in the context of the new legal framework instituted by Law No 165/2013, as well as the powers of new entities vested with powers for the application of the reparatory laws. There are also examined some aspects concerning the infringement of the legislative technical rules on the adoption of Law No 165/2013, which can give rise to difficulties in the process of acceleration of restitution of real estate property or, where appropriate, in the process of granting compensatory measures.
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After the entry into force of the Civil Procedure Code and of the Civil Code which introduced new institutions in the matter of family relationships, the Government Emergency Ordinance No 80/2013 on judicial stamp duties was adopted in order to reflect the new structure and dynamics of civil proceedings, new procedural safeguards afforded to parties in order to ensure a fair trial, as well as to cover additional costs for the development of infrastructure and to ensure the necessary logistics for the implementation of the new legal provisions. This study analyses the application of the provisions of Article 15 of the Government Emergency Ordinance No 80/2013 on the judicial stamp duties.
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The entry into force of the four Codes – Civil, Civil Procedure, Criminal and Criminal Procedure – has put an end to the legislative reform of the last 24 years in Romania and now begins the stage of their implementation. This will involve, besides noting the first case-law reactions, the initiation of a process of developing a new Romanian legal doctrine of criminal law and of private law, respectively. From this perspective, the period of exegetical approach, which is in full progress and which has manifested in the form of annotations, comments and theoretical explanations of the Codes, must be followed, as soon as possible, by theoretical analyses meant to deduct the new principles and to contribute to syntheses and systematic exposures of private law and of criminal law, respectively. In this regard, a priority role pertains to the scientific research in the field of law.
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The article analyses the main changes brought to the Constitution by the bill currently under parliamentary debate. The conclusion is that the bill represents a failure from many perspectives: transparency and public debate that must accompany such an important project; dialogue between the power and the opposition in the Parliament; ignorance for the result of a national referendum and, last but not least, the faulty wording of the text. Normally, if a Constitution revision is desired, the parliamentary majority should start negotiations with other parliamentary parties with the purpose of forming a Constitutional Convention which is to draft a new bill. If the parliamentary debate continues on the current bill declared, almost entirely, by the Constitutional Court as not respecting the revision limits and a new referendum will be organized for the approval of the bill, this bill has all chances to fail. A new revision bill should be drafted after a long political debate in which citizens must understand the necessity of the revision. Also, a new bill should consider the interests of the citizens and not interests of those in power.
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This study raises for discussion the current meaning of the term „commercial arbitration” within the text of Article 146 d) of the Constitution since, presently, under Article 3 of the current Romanian Civil Code, corroborated with Article 8 of the Law No 71/2011, and of other normative acts issued for the application and the development of the provisions of the Civil Code, the latter is „monistic”, in the sense that the new civil legislation has abandoned the traditional division into civil legal relations and commercial legal relations, a duality that existed in the legislation of private law in Romania until 1 October 2011.
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Preserving its nature as a modality of extinguishing a legal obligation, a fiscal obligation herein, the provisions of the Fiscal Procedure Code customize the datio in solutum in relation to the common law, under the following aspects: premises for operation thereof; procedure for realisation thereof – a special and excessively rigorous one; legal effects, all these in compliance with the specificity of the fiscal field. These aspects are the object of analysis of this study, making their radiography, in the light of the connected legal provisions inclusively, so that, ultimately, be able to reach a conclusion on the legal regime of fiscal datio in solutum.
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There are different solutions concerning the legality of inclusion in the annual paid leave allowance of the 4 additional sucessive classes of remuneration by which the basic salary is increased, as additional payment for exercising the activity of preventive financial control, according to Article 20 (4) of the Framework Law No 284/2010 on the unitary remuneration of the staff paid from public funds. According to some opinions, it is permitted to include in the annual leave allowance the 4 additional sucessive classes of remuneration, while, according to other opinions, this possibility is not admitted. This study presents the conditions in which, in the opinion of the author, the 4 additional sucessive classes of remuneration can be included in the annual paid leave allowance.
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In this study the author has analyzed corruption from the perspective of its legal implications on the business environment. A notion which appeared at the same time with the economic changes became in time a truly global scourge which has systemically affected the economic exchanges, the financial flows, the market economy. It symbolizes, after all, the poor functioning of the state which makes considerable efforts to control the economic and financial crime. In this context, the author has identified corruption acts and measures to combat them, also emphasizing the constant efforts at both state and international level, in order to combat this criminal phenomenon.
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Prevederile imperative ale art. 73 alin. (2) din Legea nr. 85/2006, care instituie un termen de 5 zile în care să se formuleze contestația la tabelul preliminar de creanțe, nu intră în contradicție cu termenele recomandate de către judecătorul sindic în încheierea de deschidere a procedurii insolvenței. Prin urmare, nu sunt îndeplinite condițiile prevăzute de art. 322 pct. 7 C.pr.civ. în cazul în care se invocă contrarietatea dintre încheierea de deschidere a procedurii insolvenței și decizia prin care a fost respinsă ca tardivă contestația la tabelul preliminar, întrucât nu se poate confunda termenul prevăzut de art. 73 alin. (2) din Legea nr. 85/2006 cu termenele prevăzute de art. 62 din aceeași lege. (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 4020 din 19 noiembrie 2013)
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Dignity of human being is one of the most obvious and complex notions which lawyers had to study thoroughly in the last years. The complexity of dignity arises from its almost non-legal nature: dignity is a fundamental attribute of the human being or a postulate of civilization of which law should take note. It can not be conceived that dignity can be denied or that legal order ignore it. As an expression of human value, dignity tends to be confused with the notion of humanity. The presence of a principle of dignity in our legal order is undeniable; but respect for a person’s dignity can also reveal itself as a subjective right, as shown in Article 72 (1) of the Civil Code. Having in view the uncertainties arisen in the debates around dignity, the authors’ approach is an attempt to reflect, on the one hand, on the conceptual notion of dignity by the analysis of the object and of the legal nature of dignity and, on the other hand, on the functional point of view which allows to determine what dignity serves for; in other words, the functions of dignity and its practical applications. The regulation of the right to dignity in the Civil Code should be regarded as a timely novelty. -
Starting from the semantics of the term „parental authority” and from its normative background, this study raises for discussion the issue of the intention of the authors of the current Romanian Civil Code to reaffirm the „parental power”, as a legal solution for „calming down” the trend of „early emancipation” of the child. The viability of this terminological option is analyzed both in relation to the provisions of some international and internal normative acts in the field of protection of the child’s rights and in light of the Civil Code rules regulating various aspects of authority (power) within the relationships between parents and child.
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The definition of the legal guard of things and animals within Article 1377 of the Civil Code is one of the elements of novelty in our civil legislation, summarizing the most important features outlined over time in the doctrine and in the case-law. The study intends, starting from this definition, to present a selection of solutions and comments concerning the conditions of engaging the tort civil liability of the guardian, the transmission and the splitting up of the legal guard, as well as the causes which exonerate the guardian from its liability.
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At the same time with the entry into force of the Law No 286/2009 on the Criminal Code, the regime of judicial individualization of criminal sanctions has undergone significant changes both by introducing some new institutions, such as postponement of application of punishment, and by a different regulation of some old institutions, such as the suspension under supervision of execution of punishment. The author analyzes comparatively the two above-mentioned institutions of law, as well as by correlation with other provisions of the criminal law, in order to highlight their defining particularities, required to be known for a better judicial individualization of punishment.
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The practice of the constitutional jurisdiction court points out that the exercise of the constitutionality control does not lead only to the ruling of some simple solutions, by which the criticized text or texts of the law are found to be or not in compliance with the rules of the Fundamental Law. The complexity of this control, in close connection with the growing complexity of the regulations, but also with the desideratum of legal security, which must be equally considered in exercising the constitutionality control, makes that the solutions of the Constitutional Court be also expressed in different forms. This study makes an analysis of the decisions of the Constitutional Court pertaining to the category circumstantiated by the term „interpretative decisions”, in order to emphasize their importance and their role in the process of constitutionalization of law. Certainly, the achievement of constitutionality control involves, in itself, a process of interpretation and comparison of the constitutional rules and, respectively, of the infraconstitutional ones. Within the interpretative decisions, however, this comparative examination has a greater complexity, constituting an emphasis of more possible interpretations and the identification of the one which complies with the provisions of the Constitution. Such an analysis also raises for discussion the role of the Constitutional Court in the process of interpretation of the legal infraconstitutional rules, an interpretation facilitated by the provisions of the Fundamental Law, its basis and the limits of the jurisdiction of the Court.
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In the absence of some systematic concerns with significant results, the concept of legal culture still remains at the stage of exploration of its meanings. Starting with its increasing role in the configuration of the law, this study deals with defining the concept, placing it in the context of culture in general and emphasizing the constitutive elements and the main contributions: the history of law, the legal language, the dialogue by means of comparative law, the practice of justice and others. The professional legal cultures and their role occupy an important place in the spiritual concert of society. It is analyzed the legal perception of the concept of culture, the role of scientific research in the matter and the implications of globalization. An outline of the Romanian legal culture in the historical dynamics completes the author’s approach.
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In this study, the author, starting from the provision written down in Article 60 (1) c) of the Labour Code, according to which the dismissal of the pregnant employee is forbidden, as far as the employer was notified of this fact prior to the issuing of the dismissal decision, considers that the interpretation of this legal text should be performed extensively, in correlation with the provisions of Directive 92/85/EEC and, as such, the interdiction in question is also incidental, for example, in cases of dismissal of the employee in the trial period, of hiring the employee under a fixed-term contract or even if she did not notify the employer about her pregnancy condition prior to dismissal, if the failure to notify is not the consequence of bad faith of the person concerned and others.
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The institution of suspension of the individual labour contract is regulated by Articles 49–54 of the Labour Code (Law No 53/2003, republished on 18 May 2011). More or less recently, the Law No 255/2013 for the implementation of Law No 135/2010 on the Criminal Procedure Code (entered into force on 1 February 2014) and for amending and supplementing some normative acts which include criminal procedural provisions, supplemented the Labour Code (republished) by adding Article 52 (1) c1), pursuant to which the suspension of the individual labour contract occurs (on the employer’s initiative) also „in case the measure of judicial control or of judicial control on bail has been taken against the employee, under the terms of the Criminal Procedure Code, if there have been established, as his duty, obligations which prevent the performance of the labour contract, as well as in case the employee is under house arrest, and the content of the measure prevents the performance of the labour contract”. In this study, the author analyses this new and recently regulated case of suspension of the individual labour contract on the employer’s initiative.
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The author analyzes the condition of existence of common property for granting legal personality to an owners’ association in the light of the provisions included in the Law No 230/2007, starting from a solution of the judicial practice, reaching to the conclusion that the establishment of an association can not take place unless there is a common property of all members of the association.
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This study examines the regulation of the Civil Code, entered into force on 1 October 2011, in respect of non-essential clauses, standard clauses, external clauses or extrinsic and unusual clauses, in the process of conclusion of contracts. Despite the intention of simplification which the Civil Code had in view, the risks and the issues generated by these legal instruments can be imagined, even in this early stage of its application. Within this analysis, there are also reported some problems, as well as some possible solutions in this respects.
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Unlike the previous legislation, which did not contain any reference to the progressive offence, the new Criminal Code indicates the time from which the prescription period starts to run for this type of offence, without regulating, however, other aspects referring to the criminal treatment applicable to the acts falling within the legal category in question. This task lays further on case-law and doctrine, but, having regard to the numerous contradictory solutions and controversies noted, some regulations to ensure a uniform settlement of the noticed aspects shall be required, de lege ferenda.
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The study contains an analysis of the theoretical and practical aspects concerning the extraordinary judicial remedy of reopening criminal proceedings in case of trial in absence of the convicted person in the light of the new Criminal Procedure Code. First, the author presents the reasons for imposing the establishing of an effective remedy in the positive law through which the person on trial in absentia can obtain a retrial in his presence. Further on, after a review of the evolution of national legislation in the field of safeguards for retrial of the person on trial in contumacy, the author of the study emphasizes the meaning conferred by the Romanian legislator to the notion of „trial in absence”. Similarly, there are treated the conditions and the procedure of reopening the criminal proceedings, the particularities of retrial and, finally, the concurrence between the procedural mechanism of reopening criminal proceedings and other judicial remedies – the appeal and the contestation for annulment. Likewise, the author also makes some proposals de lege ferenda for the purpose of improving the regulation of the analyzed institution and of avoiding the appearance of some non-unitary practices during its application.
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This study deals with a new institution in the Romanian criminal legislation, namely the plea agreement, which is a deal of the prosecutor with the major defendant concerning the offence, the evidence, the form of guilt and the punishment imposed, all taking the form of a simplified procedure. By combining the theoretical and the practical aspects, the article is of great interest to those who apply the criminal law. Being written in a way which transcends the already known generalities regulated in the Criminal Procedure Code, the study specifically concerns the particularities and the difficulties which accompany the application of this new legal mechanism.
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In this study, the author examines exhaustively the problems of the preliminary proceedings before the Court of Justice of the European Union [Article 19 (3) (b) of the Treaty on European Union; Article 267 of the Treaty on the Functioning of the European Union]. To this end there are examined: the referral, the preliminary, the preliminary procedure of common law and the special prejudicial procedures.
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Aspecte introductive. Motivarea unei hotărâri judecătorești este procesul cognitiv prin care judecătorul, în raport de petitul acțiunii, argumentele părților, probatoriul administrat și dispozițiile legale, elaborează soluția. Motivarea trebuie să înglobeze toate rațiunile ce au dus la edictarea soluției1, expresie a judecății efective a cauzei. Este deci esențial ca soluția pronunțată să aibă la bază o motivare completă, denumită în doctrină ca suficientă (deci nu se urmărește o motivare totală care să răspundă fiecărei susțineri a părților, dar nu se poate accepta o motivare parțială), care să se raporteze cel puțin la fiecare categorie de argumente invocate de părți, prin arătarea rațiunii pentru care a fost reținută respectiva categorie de argumente ori înlăturată.
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În cazul în care societatea a hotărât, prin hotărâre AGA, demararea acțiunii în răspundere împotriva membrilor organelor sale de conducere, fără a desemna un mandatar special împuternicit cu efectuarea demersului judiciar pentru punerea în aplicare a acestei hotărâri, nu se poate considera că mandatul general de administrator cuprinde, implicit, acest mandat. Prin urmare, acțiunea în justiție promovată de administrator în numele societății, fiind formulată de o persoană care nu prezintă mandatul special cerut de lege, nu respectă cerințele impuse prin art. 155 din Legea nr. 31/1990 cu privire la condițiile speciale ale reprezentării, devenind, astfel, deplin incidente dispozițiile de drept procesual civil referitoare la lipsa dovezii calității de reprezentant, reglementate prin art. 161 C.pr.civ., care impun, în condițiile respectării regimului procesual al excepției, anularea cererii de chemare în judecată. (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 3726 din 5 noiembrie 2013)
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Law No 85/2006 on the procedure of insolvency was initially repealed and replaced by the Government Emergency Ordinance No 91/2013 on the procedures for preventing insolvency and of insolvency, which was in force only a few days, being declared unconstitutional, in its entirety, by the Constitutional Court of Romania. For this reason, it was necessary to adopt a new law on this matter (No 85/2014) which entered into force at the end of June 2014. In this study, the authors examine more extensively the principles of the procedure of insolvency, as well as the rights and the obligations of the participants, as currently regulated by Law No 85/2014, in comparison, when appropriate, with the previous law (Law No 85/2006). -
This study is dedicated to the analysis of the rules of the Civil Code established for „the presumption of the legal time of conception” and to „the presumption of paternity”, insisting mostly on the novelties brought by the current regulations and by the reactions of the specialized literature in this regard. Where appropriate, de lege ferenda proposals have been grounded in order to eliminate the reported legislative inconsistencies. Also, personal points of view have been expressed on various controversial aspects of the doctrine in relation to the interpretation of the legal rules established for these two important legal institutions.
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In the ambience of the legislative framework instituted by the new Civil Procedure Code, this study intends to make an analysis of several aspects referring to the determination of the jurisdiction of law courts which settle disputes in matters of administrative disputes, regulated by the Law on administrative disputes No 554/2004, in comparison with the procedural provisions instituted by the new Civil Procedure Code. In order to achieve the proposed approach, the study analyses the compatibility of the procedural rules of common law included in the new Civil Procedure Code referring to the determination of the jurisdiction of the law courts in relation to the provisions of the Law No 554/2004 regulating the jurisdiction of the law courts in matters of administrative disputes.
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As it can be inferred from the title, in this study the author intends to make an analysis of the institution of „exclusion of evidence”, which exists in the Romanian Criminal Procedure Code of 1968, which is maintained and further detailed in the new Criminal Procedure Code, differently interpreted in the doctrine and less present in the case-law from Romania. The study begins with a general and comparative presentation of the „sanction” in question in the former and in the present regulation, also being analysed the modification brought by the Law implementing the new Criminal Procedure Code. Within this study there are presented and analyzed the conditions in which the sanction of exclusion of evidence operates, as regulated by the present Criminal Procedure Code. However, the analysis focuses on the doctrinal interpretation of these conditions, by emphasizing the existence of a trend to relate the sanction of exclusion of evidence to the conditions of the sanction of nullity. As far as the author is concerned, she pleads for the interpretation and practical application of the sanction of exclusion of evidence separately from the conditions of nullity, subject only to the breach of the principle of legality and loyalty in providing evidence. For this purpose, the author also makes some interesting de lege ferenda proposals.
