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Within this article, the author makes an analysis of the main provisions of the Hague Convention of 1985 on the law applicable to trusts and on their recognition. In the context of introducing in the Romanian civil law the legal operation of fiducia, achieved by the provisions of Articles 773–791 of the Civil Code of 2009, Romania’s accession to the Hague Convention would be a natural step that the Romanian legislator should take in the near future. Although some of the provisions of the Hague Convention have been taken, tale quale, within the provisions of private international law relating to the fiducia, the accession to the Hague Convention and its introduction into the Romanian internal law, would lead to expanding the scope of practical application of the legal instrument of the fiducia itself. -
In this study, the authors have chosen to present and to analyze the criminal law institution of the conditional release because, as practitioners, more than once, they came to discover a different application thereof, a different approach of the criteria laid down by this institution and even a difference of opinions within the assessment of the opportuneness of ordering this measure by the judges of the same court, this generating an uneven practice with regard to the application of the same rule of criminal law.
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The offences regulated by the Law No 31/1990 on companies form a domain relatively less explored by the criminal law specialists and quasi-unexplored by the civil law specialists. In this study, the authors deal with those offences grouped within Article 272 of the above-mentioned law. These offences have a few specific elements. First, assuming there is a legal rule, the active subject is qualified, that is a person holding a certain quality of company member. Secondly, for two of the offences, the assumption of criminal rule is another rule, of the company law, to which the criminal law rule refers. By the fact that there is a situation such as the latter, but also because the assumptions of the other offences provided in Article 272 are part of the company law, first it is the duty of the civil law specialist to decode the meaning of the material rule, because a rigid application of the purely criminal vision in a field of the private law can lead to wrong conclusions, with serious consequences on the subjects of the offences. But, in order to cover the entire interpretative area, the same consideration must be given, according to the authors, to the criminal matters as well, where the role of the criminal law specialist steps in, so that the reader – either a civil law specialist or a criminal law specialist – forms a proper idea about a far too little investigated field.
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The article presents the special cases where the defendant benefits from the mitigating effects of the abbreviated procedure, appreciating that they must also be extended in case the application for judgment has been rejected according to the abbreviated procedure, because the defendant did not recognize all the material acts in the indictment or all the deeds described therein, but after performing the judicial investigation the court retains the factual situation recognized by the defendant.
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Dispozițiile art. 44 alin. (3) C.pr.pen. reglementează un caz de prorogare legală a competenței, în sensul că infracțiunea de favorizare a făptuitorului este de competența instanței care judecă infracțiunea la care aceasta se referă, competența materială a infracțiunii corelative fiind câștigată mai înainte și independent de reunirea cauzelor. În acest context, dacă judecătorul de cameră preliminară care funcționează la judecătorie, fiind sesizat prin rechizitoriu cu judecarea unei infracțiuni de favorizare a făptuitorului – făptuitorul favorizat fiind judecat de către tribunal – verifică și menține măsura preventivă luată în faza urmăririi penale, violează dispozițiile relative la competența materială a instanțelor de judecată prevăzute sub sancțiunea nulității absolute, potrivit art. 281 alin. (1) lit. b) C.pr.pen. (cu notă critică).
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În cazul în care prin acțiunea introductivă promitentul-cumpărător a solicitat numai restituirea avansului achitat în temeiul antecontractului de vânzare-cumpărare și dobânda legală aferentă, nesolicitând și constatarea intervenirii pactului comisoriu expres stipulat de părțile contractante cu consecința repunerii părților în situația anterioară sau rezoluțiunea judiciară a convenției, în temeiul art. 1020–1021 C.civ., este lipsit de fundament juridic demersul său, astfel cum a fost formulat, deoarece numai în caz de desființare a convenției se poate dispune obligarea părții în privința căreia angajamentul nu s-a executat la daune-interese. (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 3261 din 24 octombrie 2014)
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This approach is meant to carry out a brief examination of the control which the judge is required to perform on the acts of disposition of the parties in the civil trial. It refers to the main sides of availability and, especially, to the presentness and imperativeness of such a control. In this context, the author notes that the new Civil Procedure Code has not abdicated from the active role of the judge, this being far from the peak of its „glory”. Likewise, the author analyzes the procedural ways of invalidation of the acts of disposition, first noting the incidental legislative regulation both with regard to the transaction and to the judgment that confirms the agreement of the party. It is noted that, from a normative point of view, the party does not have an option right between the exercise of the action for annulment and the means of recourse against the judicial transaction. At the end of the study, the author analyzes some aspects of the recourse which can be exercised against the acts of divestment and acquiescence to the claims of the applicant. -
In principle, the confession is admissible as means of evidence in all the matters for which the civil processual law represents the common law of the procedure and for which there is no separate procedure. Exceptionally, the confession is not admissible: when it is expressly prohibited by law; whether, by admitting it, the imperative provisions of the law would be eluded; if the law requires that certain facts be proved only by certain means of evidence; if, by admitting it, one could reach to total or partial loss of a right which may not be waived or may not be subject to a transaction. The judicial confession shall be given by means of cross-examination, as reflected by Articles 351–358 of the Civil Procedure Code. Obviously, it is a question of provoked judicial confession, whereas the spontaneous judicial confession does not require any prior preparation and, as such, it does not require an express regulation. Instead, the written extrajudicial confession is subject to the regime of proof of evidence through written documents, and the extrajudicial verbal confession may be attested by witnesses, if the law allows the testimonial evidence. The legislator of the new Civil Procedure Code expressly establishes the principle of indivisibility of the judicial confession and, at the same time, he provides an exception from this principle, namely the situation in which the judicial confession contains separate facts not connected between them. In this study there are elaborated the ideas presented above
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This paper aims to analyze the difficulties which the Romanian judge faces, in the attempt to ensure the exigencies imposed by Article 6 of the European Convention on Human Rights in matters of reasonable time. In this regard, the paper is structured in three parts: the first part briefly presents the Court’s standard as regards the reasonable time; the second part analyzes the compatibility of an institution recently introduced in the Civil Procedure Code – the contestation concerning the delay of the trial (Articles 522–526 of the Civil Procedure Code) – to the notion of effective remedy, within the meaning of Article 6 and Article 13 of the Convention; the last part emphasizes, based on some jurisprudential examples, the risks which the national judge must manage very carefully when he tries to ensure the reasonable time: the risk of acting ultra vires and the risk of creating a non-unitary case-law, thus generating the premises of some new violations of Article 6 of the Convention.
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The study is devoted to the analysis of the provisions of Article 304 of the Civil Code referring to the „putative marriage”, a legal institution meant to protect the good faith upon the conclusion of the null or annulled marriage. Unlike other authors, but in agreement with the provisions of Article 304 (1) of the Civil Code, we have also analyzed, together with the condition that at least one of the future spouses act in good faith, the requirement of existence, on the date of conclusion of marriage, of a factual situation which causes the nullity or the annulment thereof. Similarly, because the analysis of the effects of the putative marriage does not present difficulties of interpretation in case both future spouses have acted in good faith upon the conclusion of the marriage, we have focused on the situation in which, on the contrary, one of them acted in good faith and the other acted in bad faith. Finally, we have tried to elucidate the reason which determined the legislator to subject the patrimonial relations between former spouses, including in case that only one of them acted in good faith, to the provisions concerning the divorce and we have grounded a proposal de lege ferenda likely to eliminate the „legal compromise” generated by the current normative solution.
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This study is meant to analyse the provisions of Article 333 of the Civil Code regarding the preciput clause. Specifically, there are discussed issues such as: the relevant provisions; the definition of the analyzed institution; the subjects, the object and the legal nature of the preciput clause; the legal characters of the preciput; the effects of the preciput clause; inefficiency and enforcement of the preciput.
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This study deals with the issues related to the regulation included in Article 262 of the new Criminal Code of Romania. The author notes that, as compared to the regulation prior to the entry into force of the new Criminal Code, the taking over in this Code of the norm of incrimination previously included in Article 70 of the Government Emergency Ordinance No 105/2001 on the state border of Romania has been preferred as a reflection of the importance given to the social value of the regime of the state border. At the same time, it is pointed out that the norm in the Code in force is subject to completion by provisions included in other normative acts, inferior to the law, as in the Government Emergency Ordinance No 194/2002 on the regime of foreigners in Romania.
