-
This paper provides a legal analysis of rules in the new (Romanian) Civil Procedure Code on ensuring a unitary judicial practice, i.e. the appeal in the interest of law and, respectively, the referral to the High Court of Cassation and Justice for a preliminary ruling on the settlement of matters of law. While the appeal in the interest of law existed also in the previous Civil Procedure Code, the referral to the High Court of Cassation and Justice is a new procedure, not regulated by the previous Civil Procedure Code. -
The normative act which regulates the Romanian citizenship is the Law No 21/1991, republished on 13 August 2010. Recently (on 15 September 2015), the Law on the Romanian citizenship No 21/1991, republished, has undergone important amendments and supplements brought by the Government Emergency Ordinance No 37/2015, an ordinance whose content is the subject of this study. -
In this study the authors criticize the case law of some courts by which it is ordered „the restoration of the previous situation”, in case a person acquires an asset (by committing an offence) and subsequently alienates it to a third party in good faith. The situation presented is justified, according to the authors, by the idea that, if the solution suggested is not accepted, an uncertainty and an instability will be created in the civil circuit, which are likely to lead to the infringement of the property right or of the mortgage right. Moreover, in the matter of real rights on buildings, uncertainty would be reached even in respect of the buildings recorded in the land book, thus infringing the provisions of Article 900 (1) of the new Civil Code, a text that establishes that „if a real right has been recorded in the land book for the benefit of a person, it will be presumed that the right exists for the benefit of such person”. -
In this study it is examined how the patrimonial allocation estates are formed and their legal status only for those persons practicing authorised liberal professions individually, that is only for a certain category of professionals. The author has analyzed the consequences which the inclusion of a joint asset of the spouses, subject to the matrimonial regime of the legal community, into the patrimonial estate of professional allocation of one of these may have. Such a change of destination of the joint asset, even temporary, requires the consent of both spouses, and, in case of buildings, the declaration of patrimonial allocation must comply with the authentic form and must be registered in the land register in order to be opposed to the personal or professional creditors of the spouses. The specialized and exclusive guarantee of the professional creditors on the patrimonial estate of professional allocation can make possible the pursuit by these of the joint asset, so that the consent of one of the spouses to the inclusion of the joint asset in the professional allocation estate of the other spouse may be interpreted as an implicit guarantee of the performance of the professional obligations by the professional spouse who practices an authorized liberal profession. -
The institution of administrative disputes in the matter of the ordinances or of the provisions of ordinances established as unconstitutional, as well as of the constitutional and legal regime thereof is less analyzed in the specialized literature and debated in the judicial practice from Romania. In this context, this study intends to make an analysis of the most controversial aspects related to the applicability of the institution of administrative disputes in this matter, as well as of some aspects referring to the particularities of exercising the action for administrative disputes against the ordinances or against the provisions of ordinances established as unconstitutional by the Ombudsman. -
The former regulation – the Law No 85/2006 – did not define the principles underlying the application of the insolvency procedures, these being identified, explained and developed by the legal doctrine. The 13 principles provided by the Law No 85/2014 are applicable both to the procedures for preventing insolvency and to the insolvency procedures. The principles are applied by the bodies involved in the procedure, in the absence of some express provisions, which regulate some specific situation, or are used for the interpretation of an unclear text. Defining the principles is extremely important, the practice following to prove their usefulness, where the regulation is lacking or is unclear. This study aims to analyze comparatively the principles stated by the legal doctrine in the ambiance of the provisions of the Law No 85/2006, as well as the principles provided by Article 4 of Law No 85/2014, with special regard to the principle of maximizing the degree of realisation of assets and of recovery of claims. -
The author, by accurately examining Book IV of the new Romanian Civil Code (regarding the inheritance and the liberalities), entered into force on 1 October 2011, notes that, as a rule, like in the previous Civil Code of 1864, there are some more important institutions of successoral law which, in his opinion, may be considered controversial (questionable), inopportune or unclear such as, for example: – the notions of „heir”; „successor”; „inheritor”; – whether the status of heir is affected or not by disinheritance or by the waiver of inheritance; – whether the contractual appointment and the preciput clause are two separate legal institutions or not; – whether the successoral reserve has an individual or collective nature; – whether the prohibition of the (mutual) consummated will is opportune or not; – whether the successoral option is always a disposition act or not; – the inopportunity of the multiple vocation to inheritance; – the questionable nature of the utility of the „seizin”.
-
In this study the authors examine, rather exhaustively, the problems of regulating the submission of the written notes by the parties, namely: both the „common law” in the matter [Article 244 (2) and Article 394 (2) of the new (Romanian) Civil Procedure Code] and a series of special provisions in the field, included in the same Code [Article 244 (3); Article 244 (4); Article 222 (2); Article 383], and finally, after examining the legal consequences of the non-compliance with the mentioned rules, they formulate a series of interesting conclusions with respect to the topic discussed.
-
The Ombudsman is a fundamental institution of the state of law, meant to ensure the protection of natural or legal persons against the abusive manifestations of the public authorities. In this context, this study aims to analyze the main problems arisen in the practice of exercising the powers of this autonomous administrative authority, envisaging, in particular: the scope of public authorities and of the administrative acts falling within the scope of activity of this authority; the procedure for exercising the action for administrative disputes by the Ombudsman. Likewise, following the analysis of these aspects, there are formulated de lege ferenda proposals. -
Given the importance that cybercrime is acquiring, the author has appreciated as being necessary to make an analysis on the applicability of self-defence and state of necessity in the context of cybercrime. Having as premise the necessity of justifying the retaliation in the virtual environment, the author has attempted to identify arguments in order to support the thesis according to which the self-defence and the state of necessity may find their applicability including in this area. Beyond analyzing the problematic issues related to this topic, we have tried, therefore, to emphasize the hypothetical situations in which a cyber (digital) attack is likely to give an outline to the state of self-defence or to the state of necessity. -
The problematical issues concerning the documents issued by the President of Romania in exercising his constitutional and legal powers and the settlement of disputes derived from these documents have been less discussed in the literature of speciality. Starting from this reality, this study intends to analyze these issues, by comparing the provisions of the Law on the administrative disputes No 554/2004 to the provisions of the revised Constitution and to other special normative acts in the matter. In this context, the study analyzes in detail the documents issued by the President of Romania in exercising his constitutional and legal powers, the documents issued by the President of Romania which may be subject to an action for administrative disputes, as well as the documents which are excepted from the control of the court of administrative disputes. -
The author makes a comprehensive and dense analysis of the exception of non-performance which, in his opinion, falls within the system of remedies for non-performance of contracts. At the beginning of his scientific speech, he has proceeded to a broad presentation of the notion, origin and foundations which justify the existence and the application of this important legal means, which is available to any party of a contractual relation, the content of which is formed of reciprocal and interdependent obligations. Likewise, he points out that, unlike the legislative state existing under the influence of the old Civil Code, currently, the exception of non-performance is expressly regulated, by general provisions, in Article 1556 of the new Civil Code, taken over in their essence from the German Civil Code, which entered into force on 1 January 1900. Having the provisions of the new Civil Code in this matter as legislative reference points, this study presents a vast debate on the scope of application, on the conditions of existence, on its own and specific mechanism of operation, as well as on the effects which this important remedy for non-performance of contracts produces between the contracting parties and to the third parties. The findings and the conclusions of the analysis have allowed the author to retain and to express the elements and the own features of the legal regime and of the functions specific to the exception of non-performance, based on which, ultimately, he proceeds to its delimitation from other related legal mechanisms, such as the legal compensation and the right of retention.
