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The engagement – although traditionally used in social life k did not have any legal regulation in the modern Romanian legislation, prior to the enforcement of the new Civil Code (October 1st 2011), namely: the Civil Code of 1864 and next, the Family Code. Instead, the new Civil Code (Law no. 287/2009, republished on July 15th 2011) regulates engagement in art. 266-270. The authors of this study analyze the aforementioned enactment of engagement, concluding that the express regulation of this private law institution in the new Civil Code is beneficial. -
In this study, the author analyzes the protection measure by means of adjudication of incapacity of certain natural persons, mentally ill, by drawing a comparison between, on the one hand, the dispositions of the New Civil Code and the New Code of Civil Procedure, and, on the other hand, the old regulation contained in the Family Code of 1953 and the Ordinance no. 32/1954 regarding enactment of the Family Code and the Ordinance regarding natural persons and legal entities. In its essence, the New Civil Code preserves almost entirely the provisions of the previous regulation on this protection measure, bringing just a few elements of novelty, such as the possibility of appointing the custodian by a competent person, in case of future adjudication of incapacity or acknowledgement by law of the validity of donations made by the custodian, without being exempted of report, to the descendants of the one adjudicated of incapacity. The same thing can be observed in case of procedural dispositions, the most significant amendment brought by the New Code of Civil Procedure to the procedure of adjudication of incapacity being the modernization of the advertising system with the purpose of permitting the measure ks opposability towards third parties, thus arising two new forms of publicity, namely land registration and trade register publicity.
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Despite of the settling for several years in the Romanian legislation of the regulation giving the creditor the opportunity to regulate the enforcement of the debtor’s obligation, the holder of a trademark, in the manner of the legal seizure of the trademark directly from the estate of the latter – the provisions of art. 40 para. (2) of the Law no. 84/1998 on trademarks and geographical indications, the creditors completely ignore this option as they are not able to anticipate its multiple advantages. The legal seizure of a strong trademark known among consumers – the recipients of the goods or services which the trademark is associated to, confers the creditor seeking enforcement a true mean of enforcing the debtor in the voluntary and immediate execution of its duty. The latter is threatened with the loss of the right to use the trademark in its trade activity, a trademark that it had made famous in time with significant costs and making continuous effort. The manner in which the legislator intended to outline the text of art. 40 para. (2) of the Law no. 84/1998 suggests indirectly that the trademark rights can be enforced ut singuli, distinctly from the goodwill in which they are included, and the legal nature of the concept of trademark determine the means of enforcement whose procedures have to be followed in order to achieve the ultimate goal – recovery of the claim: the indirect. movable enforcement, by sale at auction of the trademark rights, after its evaluation by a judicial technical expert in the matter of the industrial property rights. -
The author analyzes the legal status of undue payment, regarded as a source of civil obligations, such as they results in the texts of the new Civil Code. It has been specified since the beginning of the study that in general no essential amendments were reported in relation to the definition and existence conditions of this legal deed. However, it is noted as a novelty that the rules of undue payment in the new legislative environment apply also when the payment consists of the provision of services or execution of works. Likewise, the new Civil Code, unlike the old regulation, does not set forth anymore expressly the condition that the payment be made in error by solvents; however, the author argues, with convincing arguments, that the error of solvens is usually an actually relative prerequisite of the undue payment. A large space is given to the obligation to reimburse the undue payment and the rules applicable to it regarding the existence, the limits and its manner of execution. Most of these rules are located in a separate title of the Civil Code (Art. 1635 to 1649) and apply, with some exceptions, to all reimbursement obligations, regardless of their source. The author notes that, in their content, these rules contain many new elements compared to the old Civil Code, which tries and manages to examine carefully, formulating relevant solutions and answers.
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In a study published in the “Dreptul” Magazine no. 3/2013, p. 108-115, an author criticized the regulation stated in Art. 519-521 of the new Code of Civil Procedure (entered into force on 15 February 2013) regarding the seizing of the High Court of Cassation and Justice for passing a preliminary ruling for clarifying certain law-related issues, which is why he proposed the repeal of these texts. In response, in this study, the author considers that the regulation in question is useful and therefore should not be repealed. -
The article intends to give an analysis of the constituent elements of the crime of violation of private life, taking into consideration that this incrimination is new for the penal legislation in our country. The emphasis lies especially on the issues regarding the components of the external and mental elements of this crime, together with the presentation – when the author found it necessary – of certain sugesstions for the improvement of the incriminating rule. The actual analysis of the crime comes with certain generic considerations on private life as a social value, reffering to those aspects emerging from the juridsprudence of the European Court of Human Rights. -
Guaranteeing the right to defence is a fundamental principle under the Romanian criminal procedure law. Although it has strong constitutional and criminal procedure guarantees, however, its practical implementation is in some cases misinterpreted and, on the other hand, the prosecution bodies violate it sometimes, the consequence being the discrediting of the judicial process. The present article refers to jurisprudence in two cases where the defender’s right to question the opposing party and to inspect the prosecution file is restricted without legal basis. -
Considering the importance that information technology has acquired in recent years and how it has come to influence the criminal policy at the international level, the author of this study founds it necessary to analyse the subject matter of the offence taking into account this new technological context. Thus, it has been attempted to highlight the need for a reconceptualization of the offence’s subject matter, emphasizing the idea according to which intangible elements may be part of its structure. In support of this thesis, there was reviewed the problem of theft of virtual goods and of certain cybercrimes that reveal the existence of an intangible subject matter which is likely to be interposed between the agent’s behaviour and the social value protected by the rule of incrimination. Last but not least, the author has pointed out a possible consequence of the reconceptualization of the subject matter of the offence, referring thus to the applicability of the supporting cause of self-defence.
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The author, comparatively examining the provisions set forth under Articles 1402-1404 of the former Civil Code (1864), Article 45 of the former Commercial Code (from 1887), both currently repealed, with those set forth under Article 124 of Law No. 71/2011 relating to the implementation of the new Civil Code, concludes that, despite an explicit intervention, under the rule of the new Civil Code (Law No. 287/2009) disputed revocation is forbidden at present for all contentious rights, irrespective of their nature. Currently, disputed revocation is allowed only for assignment of rights concluded prior to October 1st, 2011 (when the new Civil Code was enacted) -
The choice made by the Romanian pouvoir constituant in 1991 in favour of the European model of constitutional review does not seem to have been followed by legal terminology. Most probably in order not to break with a tradition that still enjoys good reputation among legal scholars and practitioners, the label of „exception of unconstitutionality” has been preferred to the one of „preliminary reference”. This apparently minor semantic detail managed to have a lasting impact on the admissibility of this procedure to the point where the very legal institution has been completely transfigured: from a preliminary question it has become a defensive procedural tool. -
The purpose of this article is to assess the crime of violation of the secret of correspondence from the perspective of the New Penal Code of Romania. While taking into consideration the guidelines emerging from the jurisprudence of the European Court of Human Rights, the author separately analyses the constituent elements of this crime, emphasizing on certain issues generated by the case records of the Romanian courts of law. De lege ferenda proposals are also advanced for the purpose of emendating the system of penal protection of a person’s right to freedom of communication. -
In this study, the author presents first the main reasons that led to the development of the 2009 Criminal Code and the objectives pursued by its wording. Subsequently, the author presents the main novelties brought by the regulations contained in the General Part and the Special Part of the new Criminal Code. Presentation of the characteristic features and innovations introduced by the 2009 Criminal Code compared to the Criminal Code of 1969 is achieved whilst revealing both the merits and some shortcomings of the new criminal law. These explanations are accompanied by numerous examples, own ideas and suggestions to improve the texts analyzed. In a final section, the author presents, in a reasoned manner, his own conclusions drawn in relation to the study of the new Criminal Code.
