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In the regulations of the new Criminal Code, the legislator has not opted for a limited criminal liability of the legal entity, but for a general liability which may result because of the commitment of any criminal offence. Except the state, the public authorities and the public institutions which carry on any activities not representing the subject matter of the private field, the other legal entities may hold the capacity of active subject, no matter the nature and the seriousness of the committed criminal offence. The criminal liability shall be laid upon the legal entity only when the respective entity having a position of management, provision, decision etc. commits the deed set forth by the criminal law in carrying out the business line or in the interest or on behalf of the legal entity. In case of committing a deed set forth by the criminal law, both the criminal liability of the legal entity and of the natural person who contributed to its commitment or only of one of these two categories of persons. -
The provisions of art.1538 para. (1) of the new Civil Code define the criminal clause as being that according to which the parties set forth that the debtor undertakes to pay a certain allowance in case of the non-performance of the main obligation, and para. (4) of the same article sets forth: “the creditor may request the performance of the criminal clause without the obligation to prove any prejudice.” In order to grant the criminal clause, it is necessary to meet the following conditions: the existence of a criminal clause validly established, the non-performance, the inadequate performance or the delay performance of the contractual obligation, the debtor’s fault and his putting in default or being in default de jure. At the same time, the penalty cannot be requested if the performance of the obligation has become impossible for grounds which are not imputable to the debtor, such as the force majeure, the act of God, the deed of the victim or of a third party.
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In this paper, the author reaches the conclusion according to which in the Romanian law, in principle, the parties’ inequality, in the mater of the transaction agreement, shall not be sanctioned, just as the cancellation of such injury agreement is not admissible. Despite all these, a transaction agreement concluded as a result of an economic constraint may be cancelled if the existing necessity conditions are met, and the disproportion affecting the contractual performances is unjust, illegal; according to this last aspect, the extent to which one of the parties misuses the economic dependency of the other party for the purpose of getting an undue benefit, shall be relevant.
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Audit services is based on two premises: (i) companies must be able to choose their auditors according to their needs and at a reasonable cost and (ii) investors must be able to rely on an independent audit opinion based on an audit of high quality before investing in a company. It is in the public interest to ensure a sustainable audit function and, consequently, a competitive market for audit firms. Usually, a person invests in a company only once, in advance, has analyzed an audit report relating to the financial condition of that company. If, then, there is a failure of the enterprise (such as eg bankruptcy) that has earlier cases and unidentified audited by the auditor in place its civil liability issue. The question is to set a limit on the civil liability of auditors so that, on the one hand, to ensure fair compensation to those injured (investors), and on the other hand, auditors to take such risks reasonably.
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The crime committed with two forms of guilt, as a form of the legal unit of the crime, has given rise over the time to different controversial debates due to its mixed structure. A special place is held by the possibility of the secondary party’s existence, this possibility being accepted by most of the authors, as well as unanimously in the judicial practice. The authors of this paper developed for the first time three conditions of the secondary party’s existence to the crimes committed with two forms of guilt for retaining this form of participation easily in the future judicial practice. The non-fulfillment of any of the described conditions produces different legal consequences for the participants; however, the detention of the secondary party to the crime committed with two forms of guilt shall be excluded.
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The various methods and means used by the offenders committing murder for the purpose of getting away of the victim’s body subsequent to its commitment, provide the authors the occasion to issue certain comments related to the constituent content of the grave violation offence set forth in art 319 of the Criminal Code, in the manner of a body profanation, based upon a non-unitary judicial practice despite the advance of a solution within a recourse in the interest of the law.
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The objectives of the research contained in the article consist in the examination of the immunity and of the criminal liability of the Romanian parliamentarians over the time according to the rules of the Romanian law, with a focus on the present provisions. The results of the research shall be summarized to the need for keeping the parliamentarians’ immunity also in the future provisions of the constitutional and criminal law, especially on the absolute immunity regarding the opinions and the votes expressed in exercising the mandate granted by the poll. Likewise, the author considers that a certain partial immunity has to be kept as well, as regards other actions of the criminal procedural law, such as: the inquisition, the detention, the attachment and the arraignment. The paper may be useful to the theoreticians, practitioners, as well as to the constituent legislator, considering the need for the amendment and supplement of the present fundamental law. The value of the article consists in the examination of the constitutional and criminal provisions regarding the criminal liability of the Romanian parliamentarians, as well as in the critical opinions and the filed de lege ferenda proposals.
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In the interpretation and unitary application of the provisions of art.251 of the Law no. 32/2000 regarding the insurance activity and insurance supervision, as subsequently amended and supplemented, corroborated with those of art.24 of the Code of criminal procedure, the High Court of Cassation and Justice, in the judgment in the interest of the Law no. 3/2010, decided that “in the criminal trial, The street victims’ protection fund has the capacity of a liable party from the civil point of view and may be obliged solely, but not collectively with the defendant, to pay the civil indemnifications to the persons injured in non-insured car accidents”. In the attempt to answer the question whether, in a criminal trial, the defendant could be obliged to pay the civil indemnifications or whether the amounts paid as such shall be determined in the exclusive charge of The street victims’ protection fund, the author of the article promotes the idea according to which the main obligation to repair the damages shall belong, further, to the defendant, in his capacity as the offender of the illegal deed generating prejudices, and the existence of a special regulation set up for the purpose of protecting the victims of the car accidents, could not operate as a reason for holding harmless from the civil point of view. Considering that in the light of the present Civil Code the obligations of the defendant and of the above-mentioned fund keep their nature of in solidum obligations, the author considers that from the operative part and the considerations of the judgment in the interest of the Law no. 3/2010 of the High Court of Cassation and Justice, it does not result that The street victims’ protection fund shall be exclusively obliged to pay indemnifications in the criminal trial, as the law-related questions which have generated a non-unitary practice pertain only to the capacity of a party in a lawsuit of this fund and to the possibility to oblige him, collectively with the defendant, to pay indemnifications.
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When the court of judicial review is vested with the settlement of the recourse against the court order under which the legal and the solid nature of the preventive arrest has been reviewed ex officio according to the procedure set forth by art.3001 of the Code of Criminal Procedure, the recourse should be settled before the expiry of the preventive arrest period, taken or extended by the judge subsequently. This review deadline is a bar period, not a recommendation one. In practice, it is found that the court decides in relation to the review of the legal and the solid nature of the preventive arrest upon the receipt of the file, many times on the last or penultimate day of the 30-day deadline of the preventive arrest. This situation occurs either due to the non-observance of the 5-day deadline by the prosecutor, or by the court itself, and consequently the court of appeal decides within a period of a few days following the expiry of the 30-day period.
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The aim of this paper is to identify how and if cultural diversity, as a fundamental and moral value of the EU, is effectively protected by EU law. I will start from the EU competences on cultural matters and try to find out if, while dealing with cultural issues, the EU is actually protecting its “unity without uniformity” and its “diversity without fragmentation”. The recent and stronger intervention of the EU in cultural matters, after Lisbon, raises questions as to its real aims, be it the building of a stronger and stronger “small common denominator” in cultural issues as well, by means of uniformity or the real protection of cultural diversity of its Member States.
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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 study deals with the analysis of innovative legal solutions related to the divorce proceedings covered by Law No. 134/2010 on the Code of Civil Procedure. Thus, it was envisaged the establishment of territorial jurisdiction of the Court in relation to the residence of the spouses or of one of them, filing of the action for divorce by the husband who, legally incapacitated, has discernment and the prosecution of the action for divorce by the plaintiff husband’s heirs deceased during the trial. -
In the study hereunder, the authors analyse the wording of Article 209 para. (2) of the new Code of Civil Procedure (Law No. 134/2010, republished, enacted on February 15th, 2013), text according to which “if the claims put forth under the counterclaim also relate to persons other than the plaintiff, these will be summoned to Court as defendants”. The authors highlight that this text had no counterpart in the former Code of Civil Procedure (1865, reprinted in 1948) and emphasize positively the new regulation which extends thus the procedural framework.
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“Vague” legal concepts are inevitable, these proving their usefulness not only for covering some varied and virtually unlimited legal situations, impossible to imagine by the legislator, but also for ensuring the transition from the “the written law” to the experienced law” – given the evolution of the regulatory legal system background, while stimulating the updating of the written one. Conventional rules, primary and secondary, excel through the use of such concepts, called “autonomous”, but these are not foreign to any constitutional standards either, although one could say that, by definition, these must single out by the rigor and perfect predictability. Therefore, recognizing their indispensability and usefulness, we shall bring into focus some of the peculiarities of the review in terms of the way of interpretation and implementation of such concepts.
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Departing from the constitutional basis underlying the relations between the Constitutional Court of Romania and the European Court of Human Rights, this study examines the judicial dialogue between the two courts and the effects thereof. The conclusion of this study, based on numerous examples from case-law, is that the dialogue between the constitutional judge and the European Judge serves to develop common standards for the protection of fundamental rights, as well as to enriching those existing at national level, with effects in terms of law-making and law-enforcement.
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The study reveals, in its introductory part, some shortcomings of Law No. 8/1996 on copyright and rights related to copyright, in the field of audio-visual works, such as the contested definition thereof or the absence of definition of the audio-visual production contract definition, and puts forth its own points of view, likely to lead to the settlement of such cases. On the merits, the work depicts the characteristic features of the audio-visual production contract, its delimitation as to other types of contracts, analyses the Contracting Parties as well as the purpose and wording thereof, in terms of legal regulations and doctrinal interpretations.
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In the study hereunder, the author undertakes an analysis of Article 16 para. (1) of Law No. 554/2004 on administrative litigation (text entitled “Introducing the civil servant in the case”), statutory provision that reads as follows: “The legal demands under this law may be filed also personally against the person who assisted in the development, issuance or execution of the document or, where appropriate, who is held liable for failure to settle the demand relating to a subjective right or a legitimate interest, should there be claimed payment of compensation for damages or delay. Should the action be granted, the person concerned may be ordered to pay damages, jointly with the defendant public authority”.
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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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This study addresses, from the comparative perspective, the regulation set forth under Article 386 in the new Criminal Code. Its introductory part includes an overall assessment of the new regulations on electoral offences in the new Criminal Code which systematize rules corresponding to those which are currently included in the special legislation, namely in five regulations. The comparison of the incrimination text covered by Article 386 in the new Criminal Code aimed at checking correspondence with all the other 4 rules of incrimination of the same title currently active.
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By the judgement passed in the criminal case no. 754/2012, the High Court of Cassation and Justice held that, where the provisions of Article 3201 Code of Criminal Procedure are applicable, honest behaviour during the trial, consisting in the admission of having committed the acts retained in the document instituting the proceedings, cannot be considered a legal mitigating circumstance, referred to in Article 74 para. (1) (c) thesis II of the Criminal Code. This interpretation is questionable, because there is a legal difference between the two institutions, which doed not preclude their concomitant application.
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The court having territorial jurisdiction to trial the parole requests, the requests for the amendment of sentencing enforced by final judgments, the requests for interruption of the execution of prison sentence, the appeals to the execution filed by convicts in detention, as well as appeals lodged by prisoners against the hearing reports of the appointed judge for the execution of sentences, is set under the provisions of Article 449 para. (2), 450 para. (1), 456, 460 para. (1) and (6), 461 para. (2) of the Code of Criminal Procedure and Article 25 para. (6), 74 para. (5) and 77 para. (3) of Law No. 275/2006 on the execution of punishments and measures ordered by the judiciary in criminal proceedings. Sector 4 Bucharest Court, judging claims like the ones mentioned above, lodged by prisoners in the penitentiaries Bucureºti Jilava and Spital Jilava - prisons that are not located within its jurisdiction - pursuant to the Order of the Minister of Justice No. 1279/C/2000, administrative regulation not published in the “Official Gazette of Romania” and issued pursuant to a statutory provision, currently expressly repealed, breached the laws of jurisdiction, assuming a jurisdiction that, legally, falls upon other court. Also, on account of the Bucharest Court judging, in the first instance, as Court of execution, requests made by prisoners in the same prisons, after November 1st, 2011, date on which Ilfov Tribunal started to operate, had violated the legal rules governing its territorial jurisdiction.
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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.
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The author highlights the manner in which the observance of fundamental rights enshrined and guaranteed under the Charter of Fundamental Rights of the European Union is ensured by the national constitutional rules and the main provisions of the Civil Code, the Code of Civil Procedure, the Criminal Code and the Code of Criminal Procedure, as well as by domestic judicial courts that interpret and apply the domestic or European law, on a case-by-case basis. At the same time, the study also presents the case-law of the Court of Justice of the European Union relevant in the matter of ensuring access to justice, the right to a fair trial, as well as the relationship between EU law and the national law relating to judicial organization. In this regulatory and jurisprudential framework, the author considers that compliance with the Charter of Fundamental Rights of the European Union moves toward being enforced by national courts, along with the (European) Convention for the Protection of Human Rights and Fundamental Freedoms.
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Dispozițiile art. 9 lit. b) din Regulamentul CE nr. 44/2001 aratã cã un asigurator care are domiciliul pe teritoriul unui stat membru poate fi acționat în justiție în alt stat membru, în cazul acțiunilor intentate de cãtre deținãtorul poliței de asigurare, asigurat sau un beneficiar, în fața instanțelor de la locul unde este domiciliat reclamantul.
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The study hereunder examines the ways of exercising the autonomy of will and the reflection of the principle of freedom of contract in civil procedural law. As freedom of contract, like any other freedom in fact, is not absolute or unlimited, the author quests the ways in which, within the framework of civil procedural law institutions, there are covered and operate certain assumptions which may constitute limits to the freedom of contract. In this perspective, we shall have in view institutions such as legal contracts, mediation or arbitration.
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A “natural right” being most profoundly democratic not only retained, despite the historical vicissitudes, its intrinsic moral values, but due to the constant and firm “juridicization”, in another historical ambience, has increased these values and the implications of their valorization, while granting plenary sense to the contemporary “rule of law”, ensuring above all - according to the beautiful and meaningful saying of a historical figure - the protection of the “powerless people in front of power”: the right to request the assistance of a judge or the right of access to a judge. Article 5 of the Code of Civil Procedure recalls us that right, but unfortunately, as it does, requires again to make any effort for the consistent and undoubtedly useful understanding from the social point of view of its purposes. -
The above entitled study concerns the analysis of the Romanian Civil Code current provisions relating to the “Preciput Clause”; the said provisions are inspired mainly from the corresponding regulations of the 1804 French Civil Code. Specifically, it examined the Preciput Clause in terms of its legal nature, beneficiaries, objectives and execution hereof. Also, existence of improvable aspects in regulating this Romanian legal system unique legal institution has been reported and, consequently, certain de lege ferenda proposals were grounded.
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The new Romanian Civil Code (Law no. 287/2009, republished) contains a new concept, namely the sanction of clauses deemed unwritten, which are incident to all areas covered by the Civil Code. In this study, the author makes a comprehensive analysis of this new concept, concluding that we are faced with an autonomous sanction. Although it has an autonomous nature, with regard to its legal system, the author believes that this autonomous sanction is, by analogy, subject to the rules for invalidity.
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This study aims to identify ways to reflect in the special law (Law no. 72/ 2013) some genuine civil law guiding ideas, lato sensu, and some principles applicable to the relationships between professionals, but also the extent to which the application of these principles to the cases envisaged by the legislator in the special regulation referred contributes to the purpose of the law concerned. -
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.
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Extensive confiscation safety measure has a narrow enforcement scope, as it can be ordered only for the crimes expressly provided by law. On the other hand, extended confiscation can cover only property or the equivalent thereof, obtained by the convicted person whilst committing, in a specified time period, other crimes for which the law provides for such safety measures. Prerequisite to be met for the enforcement of extended confiscation is the existence of an obvious disproportion between income earned lawfully by the person convicted and the value of goods obtained through criminal activity for which the law provides for this safety measure.
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Art. 1 of the Romanian Labor Code states that its provisions shall apply to employment relationships, and the legal literature established that the employment relationship arises mainly from the employment contract between the employees and their employers. Law no. 52/2001, which regulates the casual work performed by the day laborer, by way of derogation from the provisions the Labor Code, provides that an employment relationship is established between the labor beneficiary and the day laborer, but an employment contract (which, according to Article 16 of the Labor Code requires written form) is not concluded. As the Court of Justice of the European Union decided in the Land Tirol Case that workers performing occasionally work, even for a single day, fall within the scope of the Framework Agreement on temporary work, and the Albron Catering BV decision stated that between the “employment contract” and “employment relationship” terms there is a relation of subsidiarity, the employment relationship of workers who provide occasional work must produce the same effects, in terms of the concerned person’s rights, with those of an individual employment contract Is concluded that Community legislation conferring rights to workers who have a employment contract or an employment relationship under the national law in force must be construed and enforced in accordance with the jurisprudence of the Court of Justice of the European Union, with regard to the relationship between the employment contract and the employment relationship.
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In this study, the author carried out an analysis of the provisions of Article 200 of the new (Romanian) Code of Civil Procedure, which thoroughly regulates the checking of the application for summons subsequent to the registration and adjustment thereof (should it not include all the necessary data).
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According to the Romanian legislation in the field, which existed prior to the entry into force of the new (Romanian) Code of Civil Procedure (15 February 2013) and labor addressing conflicts (disputes), the tribunal was usually the first instance court having jurisdiction to hear and the court of appeal had jurisdiction only on a single remedy at law (the appeal). After the entry into force of the new Code of Civil Procedure (Law no. 134/ 2010, republished on 3 August 2012), the situation has changed in that against the sentence of the first instance court (the tribunal) there is (except for the revision) a single remedy at law i.e. the appeal (within the Court of Appeal jurisdiction), appeal which is an ordinary, devolutive remedy at law. In this study, the authors analyze this situation stressing that, in principle, is the better for the parties to have nothing but the appeal (besides the revision) as remedy at law, instead of solely the recourse.
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Article 7 paragraph 1 of the Law no. 554/2004 regarding Administrative Litigation regulates the “preliminary procedure”; therefore, the establishment that, before addressing the administrative courts, the prejudiced person in his/ her own right or interest (usually by an individual administrative action) shall require the issuing authority (or the superior authority, if any) the (in whole or in part) rescission of the action, within 30 days from the notification date of the action concerned. As the “preliminary procedure” issue presents some peculiarities in the matter of the construction permit [covered by Law no. 50/1991 on the authorization of construction works (republished on 13 October 2004)], the study’s author, examines on the one hand, in detail, the issue of the “preliminary procedure”, and on the other hand, presents the peculiarities mentioned above.
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This study proposes a broader specialists’ examination of the scientific work represented by the computer program, and particularly of its usage agreement. Law no. 8/1996 regulations on copyright and related rights concerning the computer program usage agreement were investigated in relation to the rules provided for in same law and established for the patrimonial copyrights capitalization agreements and to the provisions of the Civil Code (Law no. 287/ 2009) and of the new the Civil Procedure Code (Law no. 134/2010). The paper contains the legal literature prevalent views on the computer programs usage agreement and the author’s views about some aspects of the analyzed agreement, leaving open path for research, from various perspectives, of particularly complex and evolving legal issues in the matter.
