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This study intends to make a critical analysis of the solution enacted by Article 52 (2) of the Labour Code under three aspects: the holder of the obligation to pay damages, the content, their extent and the period for which they are owed. The solution prescribed by Article 52 (2) of the Labour Code is in conflict with other regulations of the same Code. In relation to the second sentence of Article 52 (1) b) of the Labour Code, the author considers that the holder of the payment obligation must be the Romanian State, for the reasons for which it is also liable in the situations regulated by Article 50 (1) g), Article 52 c1) and Article 61 b) of the Labour Code. The author’s opinion is that the damages are unreasonably limited. Provided that, de lege ferenda, reference would be made to the provisions of Article 540 of the Criminal Procedure Code, one can notice that this text does not cover the same limits and it would allow the compensation of the employee in relation to the real damages produced, both material and moral. As a protective measure, for the duration of the suspension motivated by the indictment for acts incompatible with the position held, the employee should have, ope legis, the quality of insured within the health social insurance system. The author also believes that it should be expressly regulated a period in which the employee must notify the employer both on the cause which can determine the suspension and the reason which requires its cessation. -
This study includes a critical analysis of the provisions of the new Criminal Procedure Code which provide the producing of proof by expertise in case the technical-scientific fact-finding report is contested. The author has in view the wording of the legal text, which he considers as defective, thus allowing different interpretations. The essence of the discussion is related to the mandatory nature or, on the contrary, to the optional nature of producing the proof of expertise in the mentioned hypothesis. -
The new Civil Procedure Code establishes the penalties for each day of delay as indirect means of coercion meant to ensure the performance in kind of the obligations to do or not to do which can not be carried out by someone else other than the debtor. The application of these penalties is mainly carried out at the level of the executional procedural law, being conditioned by the initiation of the enforcement and by the existence of a writ of execution, however the legislator, by the law implementing the new Code, tends to generalize the system of penalties to the detriment of the other legal means with similar function. In this context and under the terms of removal of the comminatory damages and of the civil fines for each day of delay, regulated by the provisions of substantive law contained in special laws, it is raised the question of admissibility of the general use of penalties regulated by the Civil Procedure Code at the level of substantive law, before obtaining a writ of execution.
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In consequence of Romania’s accession to the European Union, in recent years there have been adopted a series of laws (the Law No 315/2005 and the Law No 17/2014 and others) which establish a series of new legal provisions with reference to the acquisition, in Romania, of the right to private property and its subdivisions over land by the foreign citizens and by the stateless persons. In this study, the author makes an interesting analysis of these new Romanian legal establishments, to which it is also added the Regulation (EU) No 650/2012 of the European Parliament and of the Council (entered into force on 17 August 2015) on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of successions and on the creation of a European Certificate of Succession.
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The institution of preventive arrest is regulated by the new Criminal Procedure Code in Article 223 and the following, representing the hardest preventive measure that can be taken against the defendant in the criminal prosecution phase, in the preliminary chamber phase or in the trial phase. As it is normal, the institutions referred to in the Criminal Procedure Code appear to be very strictly and concisely regulated, but even so, there may be problems in the practice of the courts and of the public prosecutor’s offices that function next to them, with regard to the interpretation of the rules. The measure of preventive arrest is the harshest of the preventive measures, because it completely deprives of liberty the defendant accused of committing an offence. In relation to the cases in which the measure of preventive arrest may be ordered and the conditions to be satisfied for taking this measure, the practice is not always unitary. If most of the cases expressly provided in the Criminal Procedure Code in which this measure may be ordered do not pose problems of interpretation, their applicability being strict and commonly understood by practitioners, some cases, also expressly provided, bring to light a series of profound legislative matters that will have to be solved, in the future, by means of the legislator’s action of amendment and supplementation of the provisions in the matter or by means of interpretation of these provisions by the High Court of Cassation and Justice in order to unify the judicial practice. -
This paper is a plea for adopting the legal conception on the notion of result of the offence. It points out both the shortcomings of the formal conception, which dominates the current theory on the result of the offence, as well as the shortcomings of the old naturalistic conception, which is still preserved today, being supported by the highly questionable theory of the civil tort liability.
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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. -
The legal report between the commercial company and the administrator is a report of mandate. The administrator mandate can be with representation or without representation and has contractual content and also legal one. The powers of the administrator of the company include two elements: the power to fulfil management abilities; the power to represent if it was expressly granted. The power to represent is distinct from the power of administration and exists only if it has been conferred. The representation of the company by the administrator is exercised differently depending on the type of company. For concluding the dispositions, the company’s administrator does not need a special power of attorney in the authentic form for this purpose. When the acts concluded by the representatives of the company are done with the overcoming of its object, they are the duty of the company except in the cases when the third parties knew or should have known the overcoming of the object or when the acts of the same are concluded by exceeding the limits of the powers of the respective bodies. -
The offence of favouring of the perpetrator has evolved along the successive regulations in terms of area of incrimination, both with reference to the criminal activities incriminated, but also with reference to the favoured persons. According to the new provisions of criminal law, it is incriminated under this name the favouring of any person who has committed a deed provided by the criminal law, which does not necessarily have to meet the requirements in order to be considered an offence, and it is also incriminated only personal favouring, not the real one, consisting of the aid given in order to ensure the product of the offence for the perpetrator. The offence of favouring the perpetrator has an autonomous nature in relation to the offence committed by the favoured person and has a subsidiary nature in relation to other offences, the aid given to a perpetrator receiving the qualification of favouring only when other legal provisions do not incriminate special assumptions of favouring. -
On number of occasions, the Constitutional Court is in the position to determine whether a norm is constitutional or not, referring to the provisions of Article 1 (5) of the Constitution, republished version. In order to comply with the provisions of this article, it is necessary for the law, the obedience of which is required by the very first article of the Basic Law, to be clear, precise and predictable. There are numerous decisions of the Constitutional Court which state that the law is devoid of „quality”, i.e. the law is not clear, precise and predictable. The non-compliance of these requirements results in a violation of the provisions of Article 6 (1) of the Law No 24/2000 on normative technical norms for the drafting of normative acts, republished, subsequently amended and supplemented, according to which the draft of the normative act must establish necessary, sufficient and possible rules leading to the greatest legal stability and efficiency. Thus, whenever the legislator uses notions whose legal nature is uncertain or do not integrate from the conceptual point of view into the normative system, or when the legislator resorts to the use of innovative concepts in the normative acts and does not define them in their very content, the Constitutional Court will have all the reasons to establish that the provisions of Article 1 (5) of the Constitution are violated, the text being inadequately drafted.
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The jurists naturally privilege the continuity, stability, coherence. If the political tends to periodically break the coherence of the social structures, the jurists conceive themselves as „doctors” thereof, and „their technique is precisely the extirpation of the void, the anticipation of the crises, the assurance of the continuity, or even the mending, after the stroke, of the ruptures of the institutional weave”1. The legal privileging of the continuity of the social evolution is translated by the structuring of the system on the basis of some principles aimed at attenuating the tendencies of radicalization of the social claims in the name of the prevalence of a certain conception about the good society over its alternatives. It is fundamental for the jurists that the law ensures the priority of the protection of freedom through the mechanisms of the rule of law over the general interest resulted from the democratic exercise of power. The law based on this vision can not be the result of a general transcendent interest over the interests of the members of the society, but must be the result of the accessibility and availability thereof.
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The relationship between the constitutional norms and the European Union law is interpreted differently, as there are several doctrinal conceptions and different case law solutions. A trend of thought affirms the supremacy of the Constitution, including over the European Union law, even though it accepts the priority of application of the latter, in its binding rules, over all the other rules of domestic law, and other trend affirms the priority of the unconditional application of all the provisions of the European Union law over all the norms of the domestic law, including over the constitutional norms. There are European constitutional jurisdictions which have established that they have the competence to conduct the control over the constitutionality of the European Union law, integrated into the domestic legal order, by virtue of the principle of supremacy of the Basic Law. In this study we analyze the interferences between the principle of priority of the European Union law and the principle of supremacy of the Constitution with reference to the doctrine and the relevant case law in the matter. Key words: principle of priority of the European Union law; principle of supremacy of the Constitution; obligativity of the legal norms of the European Union; control of the constitutionality of the legal acts of the European Union integrated into the domestic law; compliance of the domestic law with the European Union law.
