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Reținerea unei împrejurări ca circumstanță atenuantă judiciară: a) este posibilă doar dacă ea reduce într-o asemenea măsură gravitatea infracțiunii sau descrie atât de favorabil persoana infractorului, încât numai o diminuare a limitelor speciale este aptă să creeze un echilibru între rolurile aflictiv și educativ atașate pedepsei și să realizeze prevenția specială inerentă acesteia; b) atrage îndeplinirea de către instanță a obligațiilor de a indica împrejurarea care constituie circumstanță atenuantă, de a face referire la mijloacele de probă din care ea rezultă și de a o încadra în ipotezele prevăzute de lege. -
In this study, the author starts by finding that there is a divergent case law regarding the admission of the application for declaration of enforceability filed by the court executor under Article 666 of the Civil Procedure Code in the event that the enforcement title is represented by a final judgment whereby the debtor is obliged to pay a sum of money to the creditor and the proof thereof is made by a registry certificate (ad similis, an authenticated copy of the minutes drawn up and signed by the members of the court panel). The author finds that the limited doctrine that analyzed the casuistry described above reaches also diametrically opposite conclusions. In this context, making his own analysis, the author comes to the conclusion that in the above-mentioned hypothesis it is correct the solution of the courts which have admitted the applications for declaration of enforcement, based mainly on arguments related to the probative force of the registry certificate, the existence of the court judgment from the date of its pronouncement in the public hearing as the last stage of the trial (i.e., the first phase of the civil trial), since it has full legal effects, as well as on the desideratum of celerity, which governs the second stage of the civil trial, recte the enforcement. Noting that the existence of a divergent case law by which identical juridical situations are solved is likely to lead to the weakening of trust in the act of justice, the author urges for the most urgent use by the actors entitled ope legis of the means for ensuring a unitary judicial practice stated by the provisions of the Civil Procedure Code and of the Internal Rules of the courts of 2015.
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At the same time with the change of the jurisdiction of the courts vested with the solving of the applications for relocation in the new Civil Procedure Code1, the incidence of a particular situation was ignored: the subsistence of the reasons for relocation also at level of the courts of appeal competent to solve the relocation applications, when the relocation is requested from a court of first instance or a tribunal located in the same locality as the court of appeal, and the legitimate suspicion has sources well-anchored at local level. The High Court of Cassation and Justice was not late in „completing” this omission, by admitting an application for relocation of a relocation process, from the court of appeal in the locality where there were suspicions of lack of impartiality to another court of appeal, contributing, a fortiori, indirectly to the relocation of the substantive litigation to another court, away from the local sphere which did not provide sufficient guarantees of independence of justice.
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If any person can admire his own image without any restriction, then anyone is free to fix his/her image by reproduction in different forms (self-portrait, autosculpture, etc.) and finally the image can be exploited by reproduction (here by the question of whom belongs the product of the image, how it can be exploited, who owns the good in the image, how to exploit its image). The central point of the work is the exploitation of the image of persons and goods. We will try to find out what is the legal basis of image protection depending on its subject. In this way, a leap forward will be made in the legal regulation of the right to image followed by a doctrinal and jurisprudential approach to the law that is invoked to protect the image of the goods. We will also try to capture the need for a distinct right to protect the image of goods by correlating it with the mechanism of regulating the right to image of the individual.
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Perioada dintre rămânerea definitivă a hotărârii de condamnare și reluarea procesului penal, ca urmare a admiterii redeschiderii procesului penal în cazul judecării în lipsă a persoanei condamnate, este luată în considerare pentru stabilirea împlinirii termenului de prescripției. (Judecătoria Târgu Jiu, Sentința penală nr. 2141/2017, definitivă prin neapelare – nepublicată – cu notă critică)
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Soluția legislativă cuprinsă în art. 345 alin. (1) din Codul de procedură penală, care nu permite judecătorului de cameră preliminară, în soluționarea cererilor și excepțiilor formulate ori excepțiilor ridicate din oficiu, să administreze alte mijloace de probă în afara „oricăror înscrisuri noi prezentate”, este neconstituțională. (Curtea Constituțională a României, Decizia nr. 802/2017 – cu notă aprobativă)
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This study emphasizes that, from a substantial point of view, the criteria required to be fulfilled for cataloguing a deed as pertaining to the criminal domain are: the qualification of the deed in the domestic law, the nature of the deed and the purpose and the severity of the sanction. Formally, an official report of finding and sanctioning the contravention which represents at the same time also a criminal charge in the conventional sense must cumulatively include the description of the deed and the presentation of the legal classification. The effect of classifying the report of finding and sanctioning the contravention in the category of the criminal charge in a conventional sense is given by the fact that to the procedure for finding and sanctioning the contravention there are attached its own guarantees of a fair trial. The presumption of lawfulness of the report is compatible with the presumption of innocence only if it respects certain limits, taking into account the gravity of the stake and protecting the rights of the defence. The limits of the presumption of lawfulness of the official report, in the context of protecting the rights of the defence, are: the imperative that the deed be perceived directly, through its own senses, by the fact-finding agent and the exigence not to impose on the person concerned an impossible task, as regards the administration of the proof to the contrary.
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In this study, the author brings back to memory a doctrinal discussion, inspired by the decision of a tribunal (seized as a court of judicial control), published by the „Romanian Journal of Law”, in two issues, in the period between 1983 and 1984, a discussion in which its protagonists, accepting the idea of an extensive interpretation of the provisions of the old Civil Procedure Code regarding the procedure of verification of scripts, concluded that this procedure may also cover the application for summons, in case that one of the applicants claims that he did not initiate the trial, the signature on the application is not his, nor did he mandate his brother (the co-applicant) to initiate the trial in his name. The doctrinaires have reached, in illo tempore, to the conclusion that the denial of the signature on the application for summons by the person to whom the document is attributed, in fact challenging of the quality of party to the trial, as an applicant, may be invoked, for the first time, also in the means of appeal, the court of judicial control following to submit the application for the procedure of verification of scripts. The tribunal has appreciated that the verification of the signature on the application for summons could only be made by its indictment as false and sending the case to the prosecutor. This point of view was not accepted by the person filing the recourse who considered that the proof of his statements could also be made through a procedure of verification of scripts of the document, before the civil court (which could order, if necessary, a graphological expertise to be made), not wanting to expose his brother, or himself, to criminal investigations. The fact that the second author involved in the discussion claimed the lack of consistency of the claim that the person filing the recourse has not acquired the quality of party (namely of appellant), since he could only exercise the recourse as a party (and not as a third party), has offered the occasion to the last two authors participating in the doctrinal discussion to make the distinction between the quality of party to the trial and the processual quality.
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The legislative unification was the main national project of the Unified Romania. The necessity of achieving this project was emphasized starting right with the days immediately following the declarations of unification of the representatives of the three historical provinces (Basarabia, Bucovina and Transylvania) with the Old Kingdom, and the effort for its achievement continued, in a sinuous dynamics, until after the fatidic year 1940. With very few exceptions, the jurists across the country have declared to be in favour of the legislative unification, regardless of the fact that their opinion has been expressed from the chair, in university studies and classes, in the activity of the unification commissions or of the Legislative Council or in the pretorium of justice.
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This study proposes an analysis of the regulation of the institution of return by right of ownership of land located in the built-up area, with particular reference to the interpretation of the provisions of Article 25 (1) of the Law No 18/1991, amended, supplemented and republished. In the thematic approach, there are presented a series of reasons meant to clarify the legal content of the terminology of the text, emphasizing the jurisprudential meaning of the syntagms used by the legislator. Thus, the notions of reconstitution, constitution and return by right of ownership are analyzed distinctly, showing that the text of law in question is incidental both in the assumption that the agricultural cooperative of production has attributed lots for use in the gardens located in the built-up area of the former owners to third parties, cooperative members who were not the owners of that land, and in the assumption that such lots were attributed to the former owners themselves, who became members of C.A.P., either on the same site, in continuation of the 250 square meters of personal property, according to the regulations of that time (the dwelling house and household dependencies, the land on which they were located and the yard), or on another site in the built-up area. Some critical remarks are made on some approaches coming from a land fund county commission, but also from the court, which, in our opinion, did not take into account the conceptual efforts of the doctrine and the judicial practice in the matter. We are convinced that reading this study will effectively contribute to the reduction to evanescence of the risk of bringing prejudice to the real protection guaranteed by the legal order in the field of establishment, defence and exercise of the legitimate rights and interests of the persons covered by this text of law.
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Neutral power can manifest itself in modern liberal democracies also in the form of autonomous authorities. Their neutrality is based on two kinds of reasons. The first category involves the positioning of the neutral authorities outside the separation of powers in the state, their reactive (not active) political character and their role of balancing the separate powers of the state or of balancing the relations between the state and civil society. They are in the Romanian law authorities with constitutional status. The second category of authorities that call/consider themselves neutral founds its position on the neutrality of the experts in their structure. They have in the Romanian Constitution the status of some atypical, autonomous administrative authorities. Modern states are based on political freedom, i.e. on the liberation of man from objective laws. The expression of this freedom substantiates all the institutional mechanisms of modern constitutionalism. In exchange, the autonomous administrative authorities are set up to release the regulation of certain social mechanisms of political influence. They are not based on modern political freedom. Formed of experts who know the „objective” laws of social development and apply them „scientifically”, these authorities are „objective”. It is thus created a dichotomy: the people or the expert? The increasingly dense contemporary option for the expert can lead to significant risks for the human rights and for the democratic system.
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There are many questions concerning the context in which we witness the entry into force (on 25th May 2016) of the General Data Protection Regulation (GDPR) and its application (starting 25th May 2018). The answers can be numerous: political, sociological, journalistic, etc. However, we choose to analyse from the legal point of view. The GDPR was adopted taking into account the weaknesses that the Directive 95/46/EC has shown, specific weaknesses, in fact, of a EU legal act of this type, compared to the type of regulation. The Directive in question has failed to prevent the fragmentation of the way data protection has been ensured in all EU Member States. Legal uncertainty or public perceptions according to which there are significant risks to the protection of individuals, especially online, have been widespread. It is further added that the differences in the levels of protection existing in the 28 EU Member States, differences due to the transposition and application of the Directive, have sometimes led to a slowdown in the application of the principle of the freedom of movement of personal data within the EU, which may constitute real obstacles to economic activity at this level, distorting competition and preventing authorities from fulfilling their responsibilities under EU law.
