-
The presentation of the new civil law regulations in our country provides us with the opportunity for introspection in the legislations, case law and doctrine of other countries from which our lawmaker inspired. An example in this respect is the « administration of the property of others » which is an institution taken over from the Civil Code of the Quebec Province, Canada. From this perspective, the authors considered necessary and useful to make a presentation of the evolution and content of the institution in the « Québécois » Civil Code, in the current stage of reform in our country. They mention the civillaw nature of the legal system in this Canadian province and the work of its civil code re-codification, which was completed in 1994. The central subject of the article is the administration of the property of others, with the presentation of the administrator, the beneficiary, the forms of administration, as well as its termination. The authors briefly mention legislative provisions in this field in other countries as well. Moreover, under the analysis regarding the general nature of the regulation regarding the administration of the property of others, the authors also emphasized other provisions of the new Civil Code referring to this institution, such as the investments considered safe, the trust, the guardianship of a minor child, the taking-over of mortgaged property. The authors emphasize the importance of relating to the doctrine and case law belonging to the legislative system from which the new regulations in our Civil Code come and their adjustment to the social-legal life in Romania, taking into consideration its particularities. -
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) -
The new Civil Procedure Code brings some amendments in the procedure of administration of evidence by lawyers, introduced in the Civil Procedure Code of 1865 by the Government Emergency Ordinance No 138/2000. This study details this procedure trying to anticipate a few of the problems that may arise in the judicial practice at the time of using this modality of administration of evidence in the civil lawsuit. -
In Romania, the former Code of Civil Procedure (of 1865, republished in 1948 and amended and supplemented many times since then) with effect from February 1st, 2013 will be repealed and replaced by the current Code of Civil Procedure (Law No. 134/2010, republished on August 3rd, 2012). The topic of producing evidence in the new Code of Civil Procedure is being approached in this study; its authors believe that the new Code has not made essential amendments to the provisions relating to producing evidence, but only a number of additions in some areas such as: trial investigation; selection of the producing evidence procedure; the place of the trial investigation (in closed session and not in open court); producing evidence etc. -
Faptul că procurorul nu și-a manifestat opțiunea de a menține dispoziția de trimitere în judecată sau de a solicita restituirea cauzei într-un termen de 5 zile, în condițiile art. 345 alin. (3) C.pr.pen., nu îl decade din dreptul de a formula contestație în condițiile art. 347 alin. (1) C.pr.pen., în lipsa unor dispoziții legale exprese, și solicita începerea judecății în contextul constatării legalității sesizării instanței, a administrării probelor și a efectuării actelor de urmărire penală (cu notă aprobativă).
-
Calea de atac a contestației poate fi exercitată, în condițiile art. 347 C.pr.pen., inclusiv atunci când niciun participant la procesul penal nu a formulat cereri sau ridicat excepții în procedura camerei preliminare. În acest scop, încheierea prin care judecătorul finalizează procedura de cameră preliminară trebuie comunicată participanților, eventuala omisiune putând fi revelată inclusiv în calea de atac a apelului, cu consecința regresării procedurii din faza judecății în faza camerei preliminare (cu notă aprobativă). -
Appeal for annulment – extraordinary remedy at law under the current Criminal Procedure Code and the new Code of Criminal Procedure – may be exercised against final judgments pronounced by the last instance of judicial control provided there are certain cases expressly mentioned and that it is filed in a given period. Final judgments may also concern other aspects adjacent to criminal proceedings, for example, taking, retention or reversal of preventive measures or enforcement of a European arrest warrant. In such cases, taking into account that the law of criminal procedure does not provide other terms of admissibility, under the dictum “Ubi lex non distinguit, nec nos distinguere debemus”, the author considers that the appeal for annulment extraordinary remedy at law may be exercised in such cases as well; the case law solution stating that the appeal for annulment is admissible only against final judgments resolving the case merits is therefore illegal.
-
The application of ancillary intervention submitted in favour of the authority that has issued the individual administrative act is admissible in the actions in administrative disputes having as object the suspension of this type of acts, to the extent to which the third party intervening in a trial between the original parties is able to prove the practical benefit which he obtains as a consequence of pronouncing a solution favourable to the party in whose favour it intervenes. The necessity to prove that the condition of imminent damage is fulfilled by the applicant who considers himself injured, by the individual administrative act whose suspension is requested, does not confer this action a personal nature, in such a way as to be incompatible with the institution of ancillary intervention.
-
Instanța de control judiciar a decis că sesizarea formulată de judecătorul delegat cu executarea, întemeiată pe dispozițiile art. 583–585 C.pr.pen., este admisibilă și, în consecință, se va proceda mai întâi la anularea suspendării sub supraveghere a executării pedepselor aplicate pentru fapte aflate în concurs și, în continuare, în mod logico-juridic, se va proceda la contopirea acestor pedepse (cu notă aprobativă). -
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 -
The regulation (Article 226) of the new Criminal Procedure Code has a corresponding regulation in the provisions of Article 1371 paragraph 1 and Article 1491 paragraphs 9–11 of the previous Criminal Procedure Code (1968), with an exception: the duration of the remand on custody will no longer be deducted from the duration of the preventive detention. The authors analyze the institution of admission of the proposal of preventive detention of the defendant during the criminal prosecution, by presenting some critical aspects and by proposing some improvements to the new regulation. -
Article 42 (3) of the Annex to the Order of the Minister of National Defence No M.110/2009 is a true legal innovation because it extends the scope of the liability for medical malpractice to hotel obligations (specific to the tenancy contract) within the content of the medical contract, but, at the same time, reduces the sphere of liable persons down to the military physician (treating physician and section chief), by exceeding the express legal limits of the liability of the physician and actually taking over not only the entire medical liability of the military hospital, but also of the medical equipment producers and of the suppliers of utilities of the military hospital.
-
Marea Adunare Națională dela Alba-Iulia, din 18 Noembrie/1 Decembrie 1918, a îmbrăcat, mai presus de orice îndoială, caracterul de adunare constituantă. Alcătuită din reprezentanți ai Românilor din teritoriile aflate sub imperiul Marelui Sfat Național Român1 – representanți pe categorii profesionale și sociale pe de-o parte, pe circumscripțiuni electorale pe de alta2 ea a fost, în mod cert, icoana juridică a vrerei întregii suflări românești din Transilvania3. Grandioasele proporțiuni ale acestei adunări se reliefează ca un eveniment fără precedent în istoria noastră națională, ca un eveniment cu puțini corespondenți în cea universală. Voința națională și-a găsit o expresiune unică prin vigoarea cu care s’a manifestat – cu prilejul acestei zile memorabile.
-
-
At the same time with the entry into force of the Law No 286/2009 on the Criminal Code, the regime of judicial individualization of criminal sanctions has undergone significant changes both by introducing some new institutions, such as postponement of application of punishment, and by a different regulation of some old institutions, such as the suspension under supervision of execution of punishment. The author analyzes comparatively the two above-mentioned institutions of law, as well as by correlation with other provisions of the criminal law, in order to highlight their defining particularities, required to be known for a better judicial individualization of punishment. -
The completion of the criminal justice activity requires the immediate execution of the final criminal decisions and continuity in the enforcement activity. However, there are also exceptional situations in which the report on criminal enforcement law is suspended as a result of impediments to the execution of the punishment. Such a situation is also the postponement of the execution of the prison sentence or life imprisonment. Postponing the execution of the punishment is not a removal of the punishment imposed on the convict, but only the delay from which it is to begin, being an exception to the rule of immediate enforcement of the criminal judgment. In order to avoid situations of unjustified delay in the execution of the punishment, or even to the abolition of punishment, the legislator provided expressly and limitatively the cases and conditions in which the sentenced person may obtain the postponement of the execution of the punishment. Far from being exhaustive, the present study can represent a supporting element for certain legal or practical clarifications related to the institution of postponing the execution of imprisonment or life imprisonment. -
The author is dealing with the issues related to the postponement and interruption of the execution of penalty by imprisonment and by life detention according to the new Criminal Procedure Code. The study contains a comparative analysis of the new provisions and of the provisions in force both from the point of view of the doctrine, and of the jurisprudence in the field. -
Over time, the abuse of right has been interpreted in various ways: while the advocates of absolute rights have interpreted it literally, namely as the almightiness of individual rights, the advocates of relative rights claim that the rights of one person end where the rights of another person start, so that the person excessively using its own right commits an abuse of right. As regards the explanation of its punishment, the classical theory assimilates it to tort liability, based on the moral censorship of conduct. Meanwhile, more and more of its hypotheses have become detached from fault. The new Romanian Civil Code accepts these trends partially, still remaining the prisoner of fault, as a basis for civil liability. The above-mentioned study intends to examine in a critical manner the legal solutions provided by the new regulation, trying to explain the punishment of the abuse of right on other ideas than the requirement to punish the guilty conduct of the holder. -
The author points out that article 77 of the new Criminal Code reassessed the circumstances having the ability to emphasize a high degree of social danger of the committed offence and of the offender. Thus, the scope of the circumstance relates to the perpetration of the offence by a person being in a preordinate intoxicated condition which may be generated besides the alcohol, by other psychoactive substances, whose consumption represents a breach of a legal or medical interdiction. The aggravation of the criminal liability has been waived in case the offence is committed for infamous reasons, as the content of this circumstance has never been precisely determined by the doctrine and jurisprudence. A new aggravating circumstance has been introduced consisting in the perpetration of the offence by taking advantage of the obvious vulnerable condition of the injured person due to his/her age, health condition, disability of due to some other grounds, as such a circumstance emphasizes a high level of gravity of the offence, but also a degree of increased injuriousness of the offender. Another novelty item is represented by the waiver to the category of judicial aggravating circumstances, because the imprecise manner in which they are regulated would be situated at the edge limit of the principle of the predictable nature of law. -
Finding the truth in the criminal trial sometimes requires the hearing as witnesses of some persons who know of factual elements referring to the object of the case. In order that the statements given by these persons should not be influenced by factors of pressure exercised on them, the criminal processual legislation has also instituted some special measures to protect the persons that are going to be heard in this capacity in the criminal trial, being also created special categories, such as the category of threatened witness, of vulnerable witness and of witness included in the witness protection program. This study deals with the transitory situation arisen after the entry into force of the new Criminal Procedure Code where the witness, to whom the status of witnesses with protected identity in the criminal prosecution phase has been granted in accordance with the provisions of the previous Criminal Procedure Code, is heard in the trial phase after the entry into force of the new Code. -
This paper analyzes the principle of mutual recognition as a method of legal integration specific to EU law but also, in the form of Full Faith and Credit and Extradition Clauses, in the U.S. Constitution and law. The article presents a brief historical perspective on this principle, of its roots in Anglo-Saxon law and its direct continuity in U.S. law, but also of taking over, through legal hybridization, in combination with the harmonization method, in EU law. The work analyses: the function of legal integration of the principle, as an essential component of both American federalism and the EU legal order, its fundamental characteristics and its conditions of application and the topic of Interstate Extradition Clause versus European Arrest Warrant. The Articles of Confederation, the U.S. Constitution, federal laws, uniform laws, the case-law of the U.S. Supreme Court and other U.S. courts, altogether with the EU fundamental treaties, the legal acts of the European Union and the jurisprudence of the Court of Justice of European Union were considered. Numerous similarities have emerged from the comparative analysis, but also some differences, coming from the different paradigms of American federalism and, respectively, of the EU legal order.
-
After the adoption and the entry into force of the Law on the administrative disputes No 554/2004, subsequently to the constitutional revision of 2003, the problems of the special administrative jurisdictions are of particular interest, being one of the institutions of the public law meant to ensure the celerity of the settlement of disputes, doubled by the guarantee offered to the litigants, concerning the compliance with the constitutional principle of free access to justice, the right to a fair trial and to the settlement of cases within a reasonable time. In this context, the study intends to make an analysis of the constitutionality of the special administrative jurisdictions regulated by the Law No 554/2004 and in some special normative acts, adopted after the constitutional revision from 2003, in relation to the provisions of Article 21 (4) of the Romanian Constitution revised and republished. -
The author’s approach to bring forward offenses against public safety on the roads in terms of the new regulation of the Criminal Code enacted by Law no. 286/2009 stands not only for a scientific approach, but also for a matter of letting those concerned in on the regulation and criminal approach of offenses in this area, against provisions of Government Emergency Ordinance no. 195/2002 on road traffic, regulations characterized by profound differences. These are some, though not all which justify, but renders our approach imperative, which, as one may note, shall prove useful in both teaching and practical terms, if it were to consider, on the one hand, the different legal matter of the two regulations, and, on the other hand, some new normative ways of achieving these facts. For the reader to better and easier understand the criminal indictments’ issue, we set ourselves to consider below separately, in two parts, offenses against public safety on the roads. -
The analysis of the offenses against safety on public roads refers hereinafter to four other offenses (leaving the scene of an accident or changing or erasing evidence of the accident; preventing or hindering traffic on public roads; failure to comply with the tasks regarding the technical inspection or the performance of repairs and the performance of unauthorized works in the public road area), continuing our approach to present to the reader our personal option regarding this set of offenses, presently provided for in an emergency ordinance. Key words: vehicle, car, leaving the scene of an accident, changing the scene of an accident, erasing evidence of the accident, carrying out unauthorized works on the public road, preventing traffic, hindering traffic, poor performance of the technical inspection for vehicles and cars.
