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In this study the authors make an approach that highlights the lack of harmonization between organic laws and the post-December period constitutional laws, in relation to regulating the free use right with referring to the public property, primarily, and the private property of the state/territorial-administrative units, in subsidiary; then the legislating of the new Civil Code which fully ceases the unconstitutionality status; and finally several aspects of specific administrative technique are being addressed.
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In this study, the author analyzes the scope of Regulation (EC) no. 593/ 2008 of the European Parliament and of the Council on the law applicable to contractual obligations (also called “Rome I”) in individual contracts of employment having an extraneity element, taking into account that the provisions of this regulation are mandatory applicable in Romania, with a view to Art. 148 paragraph 2 of the Constitution and Art. 2640 of the Romanian Civil Code (Law no. 287/2009 republished).
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According to the monist conception regarding the private law, the current Civil Code (Law no. 287/2009) inserted in the scope of its regulation the trade, including bank agreements – the current bank account, the bank deposit, the credit facility, the rental of safety deposit box for valuables. The specificity of the scope, mainly, „the publicity” and the reiterative nature of banking operations, left the essential, not only the technical aspects, within the scope of special regulations – prevalent, numerous and difficult to be codified. This study reveals the items set up by the current Civil Code regarding the typically bank agreements, the more so as no substantial right of them has existed until the adoption of this legislative instrument.
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The rule included in art. 41 paragraph 3 of the Criminal Code adopted in 1968 defines the concept of complex offence in a way which does not exclude any critique. Among the numerous critiques submitted for this definition, the legislator of the new Criminal Code adopted by Law no. 286/2009 assumed a single critique regarding the inaccuracy of using the phrase „aggravating circumstance” that it replaced by the phrase „aggravating incidental element”. However, in the author’s opinion, the most important critique of the definition consists in the fact that concepts such as “action or inaction” are used in order to describe the absorbed offence, referring only to the objective side.
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The author performs a detailed analysis of the characteristic traits of indictments under the new Criminal Code which are correlated with, related to or in interdependence relationship, as appropriate, with fraud, in view of similarities and disparities thereof, with frequent references to valid national legal practice and in relation to the new Criminal provisions. To that effect, there are dealt with, in particular in the light of their disparities, offences such as: fraud in the insurance field, encouragement of the perpetrator, concealment, omission of the referral, misleading the legal authorities, blackmail, theft, breach of trust, breach of trust by defrauding the creditors, unfair assistance and representation, influence peddling, issuance of counterfeit securities, forgery of foreign securities, counterfeiting of a technical record, perjury, false identity, but also the ones laid down in Article 84 of Law no. 59/1934 on cheques and in Article 271 points 1 and 2 of the Company’s Law no. 31/1990. Thereafter, in the case of the offences mentioned above, there are considered differentially, as appropriate, the subject of criminal care, the offence, the objective and the subjective side, forms, procedures and penalties provided for under the law. Also, the author does not hesitate to put forward his opinion on deciphering the legal wording of the offences under review or the sphere, in practical situations, of one or the other of the aforementioned rules of incrimination and to advance some of its own solutions and ideas.
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The concept of complex offence is not defined by law, excepting a few European legal systems, such as, for instance, the Romanian and Italian legislation. In the majority of legislations, the term complex offence is approached only by the specialty literature, like the cases of German, Spanish or French law. Non-regulation of the institution of complex offence through a legal provision has however resulted in an uncertainty with respect to its content, as the authors have different opinions regarding this matter.
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The present article focuses on the legal liability, having as main character the company administrator and presenting an overview of the the sanction specific to the administrator non-patrimonial liability:the administrator revoking. Concomitantly, the problems occurring in the legal practice are also taken into consideration: decision-making competence and the juridical control of the revoking decision. Due to the intuitu personae character of the mandate, the revoking of the company administrator, even when abusive, is final. So, in practice it was stated that the mandate, even arbitrary withdraw, can not be held in justice against the principle‘s will, the only right the proxy has is the claim damages, but not reintegration, as the trust representing the graunds for the mandate can not be imposed. Also, an administrator can not reguest reintegration but, if abuses were committed, by withdrawing the mandate, the administrator has damage claim. In the situation in which the administrators have been appointed by the article of incorporation, their dismissal presupposes its amendament. That is why, the court can not order the administrator‘revoking, as it would mean the modification of the articles of incorporation. In the condition in which the administrator acquired this quality by the company‘s articles of incorporation, his dismissal does not only have the character of an revokingl but it also represents an amendament of the articles of incorporation. The article also includes a detailed analysis of the opinions expressed in the speciality literature and the solutions in the legal practice for the administrator revoking problem.
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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.
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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.
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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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This paper aims to address some issues encountered in the control/audit activity that the Romanian Court of Accounts performs on public authorities and institutions, which aims the disputes arising from breaching by them of the provisions of Law no. 544/2001 on free access to public information. The law provides, in art. 22, that the person who considers himself injured in his rights may appeal to the legal administrative department in whose territorial jurisdiction is residing or the authority or public institution is situated, and the court may require the defendant authority to provide the requested information and pay moral and/or property damages. The defendant in this litigation is the territorial administrative unit (village, town, city, county), and the obligation to pay any compensation falls to it.