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Reopening the criminal trial in case of the judgment in the absence of the convicted person – an extraordinary means of appeal whose admissibility is subsumed to a set of conditions and requirements the fulfilment of which is meant to offer to the defendant the guarantee of a fair trial. -
The purpose of imposing the criminal processual sanctions is to respect the principle of legality that governs the criminal trial. The principle of legality, established in Article 2 of the Criminal Procedure Code, is the fundamental principle of the criminal trial according to which the conduct of the entire criminal trial, namely in all its phases (criminal prosecution, preliminary chamber, judgment, enforcement phase), takes place strictly according to the provisions stipulated by the law. The effects of this principle are materialized in a series of processual guarantees, one of the most powerful guarantees of the fulfilment of the processual and procedural acts according to the legal rules being precisely the processual sanctions. The problems which arise in the practice in connection with the application and interpretation of the regulations incidental in the matter of criminal processual sanctions have led us to proceed to the elaboration of this study.
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This article proposes a solution to identify the initial moment of the period of prescription of the criminal liability in case of the offence of deception, in the particular situation where the material element is separated in time from the immediate follow-up. In order to resolve this matter of law it is necessary to establish the legal nature of the offence of deception, from the point of view of the offence unity. If a progressive offence is in question, the form of legal unity being part of the category of offences with duration of consummation in time, the period of prescription of the criminal liability begins to run from the date of committing the action or inaction.
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Following the Decisions of the Constitutional Court No 405/2016 and No 392/2017 there are numerous discussions regarding the regulation of the offence of abuse of office, provided by Article 297 (1) of the Criminal Code. The Ministry of Justice has proposed the amendment of Article 297 (1) of the Criminal Code without establishing a value threshold and without the circumstantiation of the injury caused by committing the facts, elements depending on which it can be assessed the incidence or lack of incidence of the criminal law, by ignoring the above-mentioned decisions of the Court. In the public debates organized by the Ministry of Justice different opinions have been expressed in the sense of establishing a derisory threshold of ROL 1 000, in another opinion a threshold of ROL 2 000 000, and in another opinion in the absence of any threshold, without any circumscribing of the offence of abuse of office. In the context of these discussions, we propose the adoption of the regulation of the French Criminal Code in which facts are clearly, precisely and predictably circumscribed.
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The foundations of European Union law lie in the reasons that European decision-makers have identified, after the two World Wars, firstly, for the establishment of the European Coal and Steel Community and then of the European Economic Community and the European Atomic Energy Community. These reasons, however, find their origins in the events that essentially marked the first half of the 20th century, identifying themselves, among other things, through the developments recorded by the international society, namely the international law, in general, evolutions which the European society, and, implicitly, the European Union law, would not have been possible to avoid.
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The present study aims to analyze the autonomy of will regarding the civil legal act, by reference to the limitations that the legal norms, public order or good morals set both in terms of substance and formally. The legal will, a complex psychological phenomenon which is the basis of the conclusion of any legal act, is governed by two basic principles, namely the principle of real will and the principle of freedom or autonomy of will. The principle of real will, enshrined in Romanian law, gives valency to the internal/psychological element to which the party is animated at the conclusion of the civil legal act. As for the principle of autonomy of will, it finds its legal consecration in Article 1169 of the Civil Code, establishing the parties’ freedom to conclude any contracts and to establish their content. However, this freedom must not be viewed in absolute terms, knowing a series of limitations of substance and form, which we have pointed out in this article. -
The oblique action is a means of preserving the claim that has been regulated both in the sense of the new Civil Code and in the sense of the old Civil Code. The new regulation, however, brings some improvements to clarify the conditions and effects of the oblique action. At the same time, the notion of general pledge of creditors is replaced by the notion of joint guarantee. As such, a study on the effects and conditions of the oblique action is extremely useful, especially as it is compared with the provisions of the new French Civil Code. Through this paper we have understood to deal with a very important and up-to-date subject as it is a means of protecting the claims at the disposal of any creditor. At the same time, the parallel with the direct actions comes to clarify the confusion that has been created many times in both doctrine and judicial practice between the two legal mechanisms.
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The article analyzes the Decision of the Constitutional Court No 369/2017, by which the phrase „as well as in other requests assessable in cash worth up to ROL 1 000 000 inclusive” was declared unconstitutional. In the Civil Procedure Code, in Article 483 (2), there are listed the judgments that can not be challenged with recourse, among which there are the requests assessable in cash worth up to ROL 500 000. By Article XVIII of the Law No 2/2013, this threshold was increased to the amount of ROL 1 000 000 inclusive. We consider criticizable the establishing of the categories of court judgments that have eluded the recourse taking into account the value criterion and we propose to eliminate this criterion. In our opinion, we agree with the admission of the plea of unconstitutionality, which has eliminated the value threshold for the promotion of judgments that can be challenged with recourse. Likewise, we consider criticizable also the delimitation of the material competence between judges and tribunals, being based on the value criterion. In our opinion, the delimitation of the material competence must be made depending on the nature of the litigation brought to justice, not on the value criterion of the request for summons.
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Leave of absence is a motivated missing (absence) from the workplace, being a period when the employee does not work. As the leave of absence from the workplace is not legally regulated by the normative acts in force, in practice, when the employee requests leave of absence in order to solve some personal matters, discussions arise as to whether or not he receives salary during the leave of absence. This study raises for discussion some considerations and proposals referring to the legal status of the leave of absence from the workplace, both for the employees from the budgetary sector and for the employees from the private sector.
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The faulty interpretations of the normative system as a hierarchical system are due to analysing the matters of validity and of withdrawal of legality on the basis of the same methods of interpretation as when the matter of conformity is examined. If we clearly operate this distinction, using the pre-war case law, then the ordinary courts have competences in the matter of contentious of validity of rules and even some competences in the matter of contentious of conformity, despite the Constitutional Court’s claim to monopolize the constitutional contentious of rules. Likewise, they have competences in the matter of contentious of conformity of the infraconstitutional rules with the Constitution, which is questioned only due to the understanding of the normative hierarchy according to the French model, which is not applicable pursuant to the Constitution of Romania. Finally, I will prove that the ordinary courts have the competence to verify the agreement of the rules declared unconstitutional with the C.C.R decision.
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The most important normative act, which regulates the matter of establishing, organizing and dissolving societies, is Law No 31/1990. According to Article 1 (1) of the Law No 31/1990, for the purpose of carrying out activities for profit, natural persons and legal persons may associate and form companies with legal personality, in compliance with the provisions of this law. Article 1 (2) of the same law provides that the companies referred to in paragraph (1) based in Romania are Romanian legal entities. Violations of legal norms regulating the establishment, organization, modification and cessation of the activities of societies can be manifested in various forms and may, as the case may be, imply criminal, civil, disciplinary, tax liability etc. Taking into account the fact that the companies have a special importance in the field of business, the Romanian legislature criminalizes certain facts of violation of the norms provided by the Law No 31/1990.
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This study is a thorough analysis of the procedure of judgment in the absence of the defendant. In particular, there are assessed the remedies that the Romanian regulation provides to the one who has been the subject to a procedure of judgment in contumacy. The author brings arguments of comparative law and of systemic interpretation of the internal legal rules, his conclusion being that there are many aspects in which the internal regulation is deficient.
