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Accepting co-authorship in the commission of acts with basic intent has represented, sine die, a permanent struggle for scholars since the adoption of the 1968 Criminal Code. Both the literature and the judiciary have had divergent positions. In the present paper, the purpose is to assess all factors that can lead to a positive or negative answer to the question: Is co-authorship compatible with basic-intent? The analysis will be divided: the national status-quo versus the alternative solution, respectively the German one. In the national arena, the existing arguments and the foundations for the possible envisioned outcomes will be discussed. Within the German framework, the institution of Nebentäterschaft will be assessed in a comparative approach, underlying similarities and differences when compared to the Romanian framework. Finally, a personal note will be added to the mix. -
The modality of enforcement through garnishment involves the existence of a legal relationship, in which the pursued debtor has the quality of creditor, and the garnishee has the quality of debtor, a legal relationship used by the pursuing creditor in order to realize the claim from the writ of execution. The garnishment knows two phases, the one of establishment and the one of validation, the second one intervening only if the garnishee fails to fulfil its obligations as a result of communicating the address for establishment of garnishment. The application for validation of the garnishment is a veritable application for summons, its finality being to obtain a writ of execution by the executing creditor against the garnishee. The study examines the defences which the garnishee can invoke in the court of validation, having regard to the legislative solution provided by the current Civil Procedure Code, according to which a garnishee is forbidden to file a contestation to the enforcement against the acts establishing the garnishment, the latter being able to use his defences only before the court of validation [Article 787 (5) of the Civil Procedure Code]. Therefore, the processual means of invoking the defences before the court of validation are analyzed, being questioned the admissibility of the garnishee’s filing of a counter claim aiming at the cancellation of the juridical act from which the relationship between him and the debtor arose. The defences of the garnishee are analyzed starting with the distinction between defences on the merits and the processual and procedural ones, in relation to the possibility conferred to the third party to invoke against the creditor all the pleas and defences that he may oppose to the debtor, to the extent that they are prior to the establishment of garnishment [Article 790 (3) of the Civil Procedure Code].
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The institution of the penal clause, regulated in Articles 1538–1543 of the new Civil Code, still encounters different interpretations, even contradictory sometimes, in the judicial practice and in the solutions of the courts. In particular, the interest of the practitioners and of the specialized doctrine is based on the possibility conferred to the court of law to reduce the penal clause in the two cases provided by the legislator, namely when the main obligation has been executed by the debtor to the benefit of the creditor and when the penalty is clearly excessive in relation to the prejudice which might have been foreseen by the parties on the conclusion of the contract. This study aims to analyse thoroughly the two hypostases in which the judge is allowed to defeat the principle of binding force of the contract and to intervene in the decrease of the quantum of penalties, an analysis materialized both from a theoretical point of view and especially from a practical point of view, offering relevant solutions from the recent judicial practice.
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Presumptions have been playing an important role in the civil trial, their necessity and utility being recognized both in the doctrine and in the judicial practice. Recently, in order to remove any doubt about the quality of means of evidence of the presumptions, the legislator of the Civil Procedure Code enumerates them among the means of evidence and, at the same time, establishes their legal regime, and the legislator of the Civil Code has extended the scope of the legal presumptions. The reason behind these regulations is based precisely on the necessity to find out the truth also in the cases in which the judge does not have available direct evidence. Certainly, as we have stated on another occasion, the presumptions are indirect means of evidence, as the conclusions drawn imply eo ipso the prior proof of a fact that is neighbouring and related to the unknown fact. As we shall further show, the Romanian legislator has understood to classify the presumptions into legal (established by law) and judicial or simple (left to the enlightments and wisdom of the judge), with the mention that, in this study, we shall refer in particular to the legal presumptions.
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In practical situations with medical implications, the nature of the expertise must be established as a matter of priority. This matter involves a series of discussions on the differences between forensic expertise and specialized medical expertise. Nowadays, forensic expertise continues to be approached from an obsolete perspective, without detecting its limits in medical or legal matters. Highlighting the differences between the two categories of expertise and the shortcomings of the relevant legislation has major practical consequences. The utility of this study lies in terms of analyzing the legal significance of respecting the medical specialty and the object of the medical expertise – a new category of expertise, which seems to be of no practical use, despite its great importance. This respects the principle of medical specialty and takes into account also the level of development of medical science in the field of expertise. Adherence to incidental medical guidelines or protocols can be verified only by a specialized medical expertise, the only one able to analyze the compliance of the medical conduct. Instead, the limits of forensic expertise are revealed by its object, which is just another expertise in medical law, without encompassing the entire medical or legal matter, in a single specialty. The two types of work must be clearly delimited in judicial practice, for the full clarification of legal situations with medical implications, regardless of their nature. -
In this study, the author aims to highlight a number of manifestations of the principle of availability in civil proceedings that have been sanctioned for the abuse of procedural law. From the analysis of the judicial practice, we identify a multitude of situations in which the person’s right to file a lawsuit is exercised for purposes other than the one for which he was recognized by law, which was sanctioned by the application of a judicial fine. The right to sue and the right to appeal must be exercised in good faith, in accordance with the purpose enacted by the legal provisions, and not to pursue the production of a detrimental result to the adverse party. -
Proportionality of the enforcement measures constitutes, in essence, a fundamental principle of the civil enforcement procedure, which, although it does not have a regulation in terminis recognized in the Civil Procedure Code, already knows, at regulatory level, the valences of a principle, following only to be assimilated by the doctrine, by the practice and, consequently, by the legislator. Although it could be argued that proportionality is subsumed to the general principle of the right to a fair trial, we consider that it claims its own individuality at the level of the fundamental thesis leading the enforcement process, as compared to the specificity of the measures involved, the fairness of the procedure following to be appreciated by reference to the level at which all the other principles are observed, being a corollary thereof. The procedural guarantees which they enjoy, the remedies and the legally recognized consequences are elements that turn, therefore, the proportionality of the enforcement measures into a basic principle of the enforcement, on which a fair procedure is built, thus giving full expression to the valorisation of the rights and fundamental freedoms of the individual. -
The article addresses the newly introduced legal institution of verification of the legality and lawfulness of protective measures during the criminal trial, which institutes the obligation of the criminal judicial body to periodically analyze whether the legal and factual grounds on which it was previously taken or maintained continue to exist, following to be ordered its maintenance, cancellation, extension or limitation. Through the novelty of the subject under analysis, the study will contribute to the outlining of the guidelines of judicial practice in this unique legal matter. -
Termination of a contract certainly raises a multitude of questions for the party wishing to invoke the resolution or termination of the contract. This study intends to present the main out-of-court alternatives available to the parties to a convention, namely the unilateral declaration of resolution and the Commission Pact, highlighting the advantages and disadvantages of each institution under review, as well as the guidelines of the main legal systems and opinions expressed in the practice that appeared with the entry into force of the new Civil Code. By analyzing all the aspects mentioned above, we tried to facilitate the choice of the party that wants to terminate a contract. We also presented some proposals that could improve the usefulness of these institutions, especially the unilateral declaration of resolution, proposals aimed at the correlation between this declaration and the land book, as well as the various cases that may arise in notarial practice.
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Adopted in the 1922–1926 legislature, the Constitution of 1923 was indispensable for the project of legislative unification of Romania. Its norms impose unique fundamental principles and rules for the entire national legal system: the principle of national sovereignty; the principle of legality and supremacy of the Constitution; the interests of the social community may take precedence over individual interests in the matter of property right. The regulation of some unique institutions for the entire Romanian State ensures the unitary exercise of constitutional competences, and the regulated rights for all Romanians ensure a unique foundation of freedom and equality. Other provisions have a strong unifying role and each provide a point of constitutional support for future legislation. The supremacy of the constitutional norms in the system of legal norms, supported by the case law of the unique supreme court, but also the beneficial psychological effect determined by the constitutional unification complete the picture of the impact of the constitutional norms from 1923. -
The study analyzes the provisions of the Law No 114/2021 on some measures in the field of justice in the context of the COVID-19 pandemic in civil cases. The mentioned normative act provides the conditions for conducting the court hearings in the civil trial by videoconference. The conditions are the following: to be decreed the state of alert instituted in order to prevent and combat the effects of the COVID-19 pandemic also for a period of 30 days from its cessation; to be about a civil case; to have the agreement of the parties in this respect; to have the possibility; the approval of the court of law. The Constitutional Court, by the Decisions No 157/2020 and No 457/2020, has established that the justice cannot stand still, not even during the COVID-19 pandemic, under this requirement the legislator regulating by the Law No 114/2021 the manner of conducting judicial proceedings during this period. However, the legislator did not rise up to the standards imposed by the Constitutional Court of Romania, in the sense that it did not regulate an effective way of access to justice, in the situation where the objective pandemic conditions restrict this possibility. Although we appreciate positively the provisions of the Law No 114/2021 referring to the development of the civil process by electronic means, we consider that the measures ordered should be generalized and not applied, as provided by Article 1 (2), only for reasons generated by the COVID-19 pandemic.
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In any democratic state the activity carried out by the body of magistrates must be limited exclusively to the law and in compliance with the Constitution, because, otherwise, those judgments pronounced by ignoring these requirements, the fundamental rights and freedoms of the citizens, may lead to the commission of some judicial errors, through which the litigants suffer both from damage of material, but especially moral nature.
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Article 78 of the Civil Procedure Code, paradoxically, evokes through its title an apparent exception to the principle of availability, however, through its content, it constitutes a confirmation of this principle. Given this apparent contradiction, it must be clarified whether, in the case provided in Article 78 (2) of the Civil Procedure Code, the party requesting the introduction of the third party in the trial after the judge has questioned the necessity of its introduction may formulate any new heads of claim involved in the enlargement, in this way, of the procedural framework. Also due to the phrase „ex officio” attached to this introduction, it must be concluded whether, for these possible new heads of claim, related to the introductory request, the requesting party must pay judicial stamp duty or, due to this reference to officiality, the party is exempted from such obligation. It must also be established whether to these new heads of claim it can be opposed the exception implied by the sanction of loss, referred to in Article 204 of the Civil Procedure Code, in the conditions in which they would be related to the introductory request.
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We have taken into account that there have been several discussions with regard to medical legal liability, related to such a domain of maximum sensitivity, which is why the regulation of this form of liability is fully justified. Thus, medicine, being a social activity, cannot be deprived of a legal regulation that would protect the interests and rights of both the medical staff and, especially, of the patients. The liability based on the medical error cannot be one of an objective type, because, in principle, the doctor’s obligation is one of diligence and in rare cases it is one of result; depending on this aspect, at the time when the doctor guarantees a certain result, expressly expressed by him, his mistake will have an objective foundation. There have been doctrinal controversies in order to correctly qualify the type of liability that can be engaged depending on several factors, liability that may be civil tort, contractual, civil special or professional one, as appropriate. We have considered necessary to emphasize that the foundation of liability is represented by the relations established between the patient and the doctor, between the patient and the units providing medical services, units that can be in the public medical service or circumscribed to some private forms of practising medicine.
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The present study begins with the analysis of the texts of Article 630 of the Civil Code, where there can be found the legal relevant provisions, followed by some considerations regarding the origin of the civil liability for the abnormal neighbourhood inconveniences under the influence of the old Civil Code. Furthermore, the author appreciates that, at present, from the economy of the texts of Article 630 of the Civil Code, it results that the civil liability in question is of two types: reparative and preventive. Further on the scope of this liability is circumscribed. For this purpose, on the one hand, it is established the sphere of the persons between whom it can be engaged, and, on the other hand, there are determined and qualified the neighbourhood inconveniences that can generate it. An important and ample space is conferred to the analysis of the conditions that must be met for the existence of this liability, as well as to the detection of its theoretical foundation. Thus, in the reparative variant, the existence and the engagement of civil liability requires to cumulatively meet three conditions; two of them are the general conditions of any reparative civil liability – damage and relation of causality – and a special or particular one, which is the abnormal neighbourhood inconvenience caused to the victim, directly or indirectly, personally or by another, by the owner or owners of one of the neighbouring buildings. Therefore, it can be easily established that the fault or guilt, proven or presumed, of the neighbouring owner or of other persons, who exercise the attributes of the property right, over or beyond its normal limits, is not a necessary condition of engaging this reparative civil liability. Consequently, the problem of the theoretical foundation of liability is also solved legislatively, in the sense that we are in the presence of an objective civil liability, without the guilt of the liable person or of other persons, according to Article 630 (1) of the Civil Code.
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În conformitate cu prevederile art. 4 alin. (6) din Legea nr. 193/20001 și cele ale art. 4 alin. (2) din Directiva 93/13/CEE, aprecierea caracterului abuziv al unei clauze nu privește definirea obiectului contractului în măsura în care respectivele clauze sunt exprimate în mod clar și inteligibil. În acord cu principiul interpretării conforme statuat la nivelul dreptului european, prevederile actului normativ național prin care sunt transpuse în dreptul intern dispozițiile dintr-o directivă trebuie interpretate, inclusiv în litigiile care opun doi particulari, potrivit prevederilor directivei transpuse, iar nu în sens contrar
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The objectives of this study are to detect the situations that require the temporary exercise of the duties of the mayor by other persons and to examine the specific legal forms to be adopted in such situations. Specifically, these legal forms consist in the legal replacement of the mayor by the deputy mayor and the delegation of his attributions to one of the local councillors appointed by the local council. In the research undertaken, the particularities of the two legal forms of temporary exercise of the attributions of the mayor were emphasized, some procedural aspects regarding their adoption, as well as their consequences in terms of legal liability.
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This study aimed to develop a theoretical analysis configured in the matrix of a critical examination on the rulings of the Constitutional Court of Romania contained in the Decision No 702/2019. To this end, there were examined the conclusions promoted by the constitutional contentious court, which applied, in support of its point of view, the principle of equal treatment, constitutional rule, as well as of proportionality, praetorian construction, promoted by the case law, from which it resulted that, from a legal perspective, the disabled pensioners who acquired this legal condition based on the Law No 19/2000 will benefit from the application of the correction index regulated by the Law No 263/2010, if at the time of the ex officio transformation of the invalidity pension into an old-age pension the latter law was in force.
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In the context of the express consecration of the protection of non-patrimonial rights also for the legal persons, according to Article 257 of the Civil Code, it becomes useful to analyze the evolution of the practice in the matter of repairing the non-patrimonial damage caused to the legal persons. Also, the historical perspective of the notion of moral damages, the procedural means and the relevant jurisprudence of the ECHR allow us to place this issue today, concluding that the principles of the tort civil liability apply to each case, depending on the proven factual evidence, but also on the diversity of the legal persons, on the variety of their objectives.
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7 years after the entry into force of the new Civil Procedure Code, without claiming to make an exhaustive inventory of what could partially be called a failure of regulation and/or of application, the legal institutions and the judicial procedure with a new face, perhaps even revolutionary, or those only reformed and/or refurbished regulated by the new Civil Procedure Code have demonstrated successively or simultaneously their insufficiency or inefficiency, some being dysfunctional due to their own internal causes, others due to external causes referring, as a rule, to the absence of the adequate human, material and financial resources or simply as a result of the deformation by acclimatization by the courts, parties and participants in the civil trial, the examples being numerous. Under these circumstances, the necessity to regulate within the new Civil Procedure Code of a simplified court procedure results from the very materiality of the facts. The specificity of this simplified court procedure would be that it would imply to exclusively go through the written stage of the civil trial, possibly of a written stage more extensive than the current one regulated by Article 201 of the Civil Procedure Code, at the end of which the date of pronouncing the judgment will be established by administrative resolution. In this way, the duration for solving some cases with a medium or low complexity would be significantly shortened, by eliminating the time period between the date of completion of the written stage and the first trial term
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Completul pentru dezlegarea unor chestiuni de drept în materie civilă al Înaltei Curți de Casație și Justiție s-a pronunțat pe 17 februarie 2020 cu privire la reținerea contribuției de asigurări sociale de sănătate asupra indemnizațiilor plătite în baza Legii nr. 341/2004
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The study aims to analyze good and bad faith, which are in a relationship of complementarity, but each with its own individuality, in the phases of negotiation, conclusion and performance of the contract. In the analysis of the forms of manifestation of bad faith in the pre-contractual stage made in the light of the regulation of the Civil Code, there is a tendency to mark the delimitation between contractual freedom, the right to interrupt negotiations, in case of their failure, and bad faith in interrupting negotiations. The study also addresses the complex issues related to the obligation of the parties to information, self-information, dolus through reluctance, to violence, arising from the economic inequality of the parties and harmful conduct and the repercussions, in terms of free and conscious consent, with the corresponding legal sanctions. The problem of repairing the damage caused by the interruption in bad faith or without justification of the negotiations is analyzed in its material and moral dimension, but also in terms of the damage caused by the loss of a chance.
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The topic covered in this study is related to one of the few polemics that took place in the pages of the Romanian Law Magazine in the ’80s. In Issue 1/1987 of the magazine, Octavian Cojocaru criticized in the study „Judicial rehabilitation. Application made by the spouse or close relatives, after the death of the convicted person, before the execution of the sentence” a correct sentence of the Suceava County Tribunal, pronounced in 1985, in disagreement with the provisions of the Criminal Code in force at that time and against a decision of the Supreme Tribunal, according to which the convicted person who had died before the execution of the sentence could no longer be rehabilitated. Later, in 1988, Valeriu Ciucă, a judge at the same Suceava County Tribunal, published in the same magazine a critical article related to the case law note signed by Octavian Cojocaru, which shows, with solid arguments, that the decision pronounced by Suceava County Tribunal was correct from a juridical point of view.
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In this article, we analyze the stages of adoption and repeal of the Law No 169/2017, in relation to the dynamics of the level of employment of the penitentiaries and the ECHR jurisprudence. We identify the main undesirable effects of the application of the compensatory appeal, determined by the abrupt redefinition of the paradigm for the execution of the sentence of deprivation of liberty, with implications including on the (re)integration of the post-detention.
