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In this article, the author presents the procedure of individual complaint of the persons before the Constitutional Court of the Republic of Turkey. According to the Turkish Constitution and to the Law No 6216/2011 on establishing the procedures before the Constitutional Court, this procedure is an exceptional means of appeal which can be used after all the other legal means of appeal have been exhausted. The individual complaint before the Constitutional Court fulfils two basic functions: the protection of the fundamental rights and freedoms of the persons and the protection of the national legal order. -
The Civil Code expressly introduces the porte-fort convention or the promise of another’s deed in Article 1283, regulation which takes over the institution which was created in the doctrine of the Civil Code of 1865. The current codification places the institution in the section regarding the effects of the contract, but in a subsection distinct from the one devoted to the consecration of the principle of relativity of the effects of the contract. Although the systematic treatment of the principle inevitably implies the exploration of the controversies on the real or apparent exceptions, the incorporation of the analysis of the porte-fort convention in this framework has made the novelty of this legal figure somehow obscured. This article intends to make a critical analysis of the porte-fort convention in the regulation of Article 1283 of the Civil Code also from the perspective of the comparative law, by pursuing in detail the legal regime in terms of notion, forms, nature, legal characters, conditions of validity and effects, as well as the applications of this institution.
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Fraud is perhaps the cornerstone of the Paulian action. In this sense, there is no right to action without there being a fraud in the interests of one or some of the creditors. Therefore, it is very important to know the elements that characterize the Paulian fraud. This is because the damage caused to the creditor is a consequence of the fraudulent attitude of the debtor who concludes an act with a third person with the sole purpose of hiding from the pursuit of certain goods. So, the first element to be determined in order to formulate a Paulian action is the existence of fraud that has caused the creditor’s prejudice. Through this study, we have tried to highlight some of the most important judgments in the French judicial practice that have created principles for the application of the Paulian action. Although many of them have been pronounced many decades ago, their effects are still occurring at present, and the courts which have pronounced them have shown wisdom and clarity in setting out principles that ultimately shaped a unitary judicial practice in French law. Finally, the study also presents the regulation of the Paulian fraud in the sense of the new Romanian Civil Code, with references to the new French Civil Code.
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This study presents the divergent case law generated by the current insufficient regulation of the legal regime of burial plots and funeral constructions, such as burial vaults and crypts. While some courts admit the assignment of the tomb to one heir, others consider that the concession right over the burial plot and the funeral constructions bears upon a forced and perpetual indivisibility which excludes the division. As a solution, it proposes a clarification of the legal regime applicable to funeral concessions and the explicit regulation of the use of underground burial vaults, especially from the perspective of the exclusive right to be buried in a particular crypt.
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Equality of citizens before the law and before the public authorities is a fundamental category of the theory on social democracy, but also a condition of the state of law, failing which constitutional democracy can not be conceived. The Romanian Constitution expressly enshrines this principle. However, there are also particular aspects of this principle enshrined in the Basic Law. Equality before the law and before the public authorities can not involve the idea of standardization, of uniformity of all citizens under the sign of the same legal regime, regardless of their socio-professional situation. The constitutional principle of equality implies that equal legal treatment should be applied to equal situations. This social and legal requirement implies numerous interferences between the principle of equality and other constitutional principles: the principle of identity and of diversity, the principle of pluralism, the principle of unity and, in particular, the principle of proportionality. In this study, using theoretical and jurisprudential arguments, we intend to demonstrate that in relation to contemporary social reality equality, as a constitutional principle, is a particular aspect of the principle of proportionality. The latter expresses in essence the ideas of: fairness, justice, reasonableness and fair adequacy of the decisions of the State to the factual situation and the legitimate aims proposed.
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The idea of a neutral power from those derived from the separation of powers was preceded in the modern epoch by the placing of one of the Chambers of the Parliament in the role of balancing and preserving power. This second Chamber had to be different from the first one, in order for it to be superior. The manner of conceiving this superiority and the balancing and conservative role of this Chamber have been different from one epoch to another and from one system to another. In the following article, subsequent to a brief analysis of the concepts of neutral power and balancing power, I shall investigate the role played by the superior Chamber of Parliament in the constitutional history of Romania.
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A decision pronounced for the settlement of an appeal in the interest of the law by the High Court of Cassation and Justice (No 25 of 6 November 2017) brings to attention the inadequate perception by the Romanian jurisdictions of the particularities of these administrative acts of urbanism and, consequently, the recourse to procedural artifices inappropriate for solving some problems arisen in practice. In this case, for the separate exercise of the control on the legality of the urbanism certificate „by which the prohibition to build has been ordered or which includes other limitations”, the right of access to justice has been invoked [Article 6 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms], ignoring the legal nature of this act as individual urbanism administrative act that would, under certain conditions, have led to the same solution, but on another legal basis. In addition, it would be avoided the misconception that the certificate would order or that it would contain per se prohibitions/limitations of the right to build, this doing nothing else but take over, express and inform about the urban planning requirements included in the urbanism documentations.
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The study analyses the right of the accused to participate in the judgement of the case, the notification thereof and the finding of an obvious avoidance that allows for a decision to be taken in absence. In addition, there are analysed practical cases about the judgment of the case in the absence of the defendant for the reason of deliberate avoidance, as well as for reasons imputable to the authorities when the defendant has not been properly summoned.
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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.
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This study is an analysis of how the direct judicial control is exercised over the problems arisen in the execution of the custodial sentences, through a new institution, the one of the judge of supervision of deprivation of liberty, as well as an analysis of the limits of his competences. Likewise, the study also analyzes the juridical dimension of the administrativejurisdictional complaints filed by the persons deprived of liberty in order to defend their rights and interests. The study is based on the conclusions drawn from the activity of the author, as registrar, at the office of the judge of supervision of deprivation of liberty.
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Through this study we have made a thorough analysis of the conditions of admissibility of the special cancellation (revocation) action regulated by the provisions of Article 117 of the Law No 85/2014 on the procedures for preventing insolvency and of insolvency, as well as an analysis of the possibility of cancelling (revoking) any fraudulent act concluded by the debtor in the 2 years prior to the opening of the insolvency procedure. Likewise, we have analyzed what operations concluded, in the two years prior to the opening of the procedure, with the persons who have legal relationships with the debtor may be cancelled and the benefits recovered, if they are to the detriment of the creditors, except for the acts concluded in good faith in the execution of an agreement with the creditors, concluded as a result of extrajudicial negotiations for restructuring the debtor’s debts.
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Through this study we have made a thorough analysis of the conditions of admissibility of the special cancellation (revocation) action regulated by the provisions of Article 117 of the Law No 85/2014 on the procedures for preventing insolvency and of insolvency, as well as an analysis of the possibility of cancelling (revoking) any fraudulent act concluded by the debtor in the 2 years prior to the opening of the insolvency procedure. Likewise, we have analyzed what operations concluded, in the two years prior to the opening of the procedure, with the persons who have legal relationships with the debtor may be cancelled and the benefits recovered, if they are to the detriment of the creditors, except for the acts concluded in good faith in the execution of an agreement with the creditors, concluded as a result of extrajudicial negotiations for restructuring the debtor’s debts
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This article presents the procedural features of the principle non reformatio in pejus in civil procedural area. It aims to concentrate the main theoretical and practical concepts exposed during the time, relating to the limits of this principle. Finally, the study is dedicated to analyze the real interference between different peremptory rules, which govern the appeal, and the principle analyzed.
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The retransmission of the right to successoral option raises some difficulties of theoretical understanding and practical application, at least for the following reasons: the Civil Code, now in force, substantially changes the logic of the previous regulation of this legal institution; in practice, there are being debated, with a significant frequency, inheritances opened before 1 October 2011 (the moment when the current Civil Code entered into force) and which consequently fall under the incidence of the provisions of the former Civil Code (which ultractivates); there are encountered, in practice more frequently, several inheritances in respect of which the right to successoral option has been successively retransmitted; the institution about whose issues we are concerned herein, in particular, have some resemblances to the successoral representation and to the retransmission of the inheritance. For all these reasons, and we believe that there are not few, nor the only ones, we will discuss further the retransmission of the right to successoral option, starting from the theoretical aspects, which are indispensable for its just understanding and for its proper application in practice. In this context, we will give concrete examples, with the hope that they will be of use to theoreticians and, in particular, to practitioners in the field of successions.
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The study aims to present a case solved by German courts. It was raised the issue of the legal qualification of the winning under a beer cap, on terms of several people having put together the money for purchasing two boxes of beer and having bought them for that amount, including the bottle with the cap which contained the prize. In the case briefly presented it was necessary to determine whether the winning belongs only to the person who discovered the prize under the cap or to all the persons who have contributed with money to purchase the bottle containing the winning cap.
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For the appeal, which generates, in principle, a new judgment on the merits, given also the finality of exercising the appeal – the nullity of the judgment challenged – it is required another approach to the cases of nullity different than the traditional one in the matter of procedural acts. For the situation of referral of the case for retrial, it is required to argue that it is necessary to specify, in the judgment of referral, where appropriate, the part which is cancelled from the procedure followed by the court of first instance, respectively of the procedural act from which the retrial begins.
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The neutral power, i.e. a power that is situated outside the three powers derived from the organisation of the state on the basis of the principle of separation of powers, was conceived and institutionalised in various ways. One of them transforms the Head of State into a power that distances itself from political games and the separation of powers. The Head of State plays the role of balancing power and that of mediator between legislative, executive and jurisdictional powers and between state and society. The following article examines the role of the Head of State as neutral power in the constitutional history of Romania and in the 1991 Constitution.
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The interpretative solution provided by the High Court of Cassation and Justice – Panel for the settlement of some matters of criminal law by the operative part of the Decision No 15/2018, according to which „after the transfer of the person convicted by the foreign judicial authorities, in order to continue the execution of the punishment in Romania, the length of the punishment considered by the state of conviction as executed on the basis of the performed work and of good conduct, granted as benefit in favour of the convicted person, by the foreign judicial authority, must not be deducted from the punishment which is executed in Romania”, has lost its validity and binding effect both as a result of delivery of the judgment of the Court of Justice of the European Union – Grand Chamber of 8 November 2016 in the Case C-554/14 and as a result of the entry into force of the amendments brought to the provisions of Article 144 (1) of the Law No 302/2004 by the Law No 236/2017.
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Recognition of the adherence of leniency to the legal phenomenon or its inclusion in the extrajuridical field is determined by the nature of philosophicalmaterialist or idealist conceptions. Amnesty and pardon are based on the socio-political grounds and have as foundation the feelings of gentleness, magnanimity, compassion. Justice is the ideal state of society, achievable by ensuring, for each separately and for everyone together, the enjoyment of legitimate rights and interests. The fundamental components or values of the notion of justice are: righteousness, social utility, legal certainty. The concept of leniency is related to all the three elements. By its very name, its functions and its purpose, the law must be based on the idea of righteousness. The essence of the idea of righteousness is to treat similar cases equally and different cases in distinct ways. The exercise of leniency is closely related to the principle of justice. Social utility means to organize a community to ensure the good of everyone and of each separately. The same social utility claiming punishment sometimes justifies the abandonment of punishment or forgiveness thereof. Legal security designates that state of safety of individuals and of society as conferred by the legal normativity by complying with its prescriptions. Although it is sometimes considered that leniency means bankruptcy in criminal justice, the legal certainty will never be affected if leniency acts are consistent with a rational legal conscience and does not harm the rights of the injured parties by committing the offence. Amnesty and pardon are not directed against legal certainty, but, on the contrary, they are put to the service of the common good, which is a proof of trust and a means of protecting the citizens. The three components of the idea of justice – righteousness, social utility and legal certainty – are in a tensed state. Amnesty and pardon are called to detension and harmonize these relations. Leniency is not in antithesis with the law, but it is inevitable for its completion.
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In our previous study we have analyzed cybercrime in the Cloud Computing environment. Our research led us to the conclusion that, with the rise of Cloud Computing services, cybercriminals benefit of new and improved ways of conducting their illicit activity, thus using the Cloud environment as an instrument or as a specific target. Furthermore, we have discovered that cybercrime is constantly changing. Emerging technology trends like Big Data, Social Networks, the Internet of Things and Cloud Computing services change the way that cybercriminals act today. As more and more relevant data is located in the Cloud, the cybercrime threat also increases. Cloud Computing also offers immense computing power at the disposal of nearly anyone, criminals included. This leads to the migration phenomenon of cybercrime. Traditional forms of cybercrime are gradually replaced by new and more complex ones, like those that occur in Cloud Computing and in other information technology environments. Our study shows that there are a series of factors that are held responsible for the cybercrime migration phenomenon. These factors include: powerful processing power, huge volumes of valuable data, extended service availability, risk of mass attacks, vanishing fingerprints, adaptable crime tools and others. Only by examining the way that cybercrime evolves we will be able to reduce its harmful effects.
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Cititorii Dreptului au luat cunoștință de proiectul de lege relativ la noua modificare a legii Curții de Casație, în scopul reînființării recursului direct în materie de contencios administrativ, în expunerea de motive a d-lui M. Cantacuzino, ministrul justiției, ce am distribuit în supliment. Publicăm aici și raportul d-lui Petre Missir, care este un document luminos asupra legii propuse, aflată în discuția Senatului.
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Publicăm mai jos hotărârea Tribunalului Ilfov, dată în procesul dintre Societatea tramvaiurilor și Ministerul de interne, cu prilejul aplicărei legei din 18 Decembrie 1911, și anume părerea motivată a majorităței (d-nii N. Algiu, președinte, și C. Bossie, judecător) și aceea a d-lui judecător I. G. Manu.
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This study aims to analyze the characters of the claim of a creditor entitled to request the opening of the insolvency procedure, namely the certain, liquid and exigibile character, as well as the conditions for admitting the application for claim in the insolvency procedure. The creditor’s right to request the opening of the insolvency procedure is one of the modalities which the legislator has made available to him in order to materialize his claim right against his debtor. The opening of the insolvency procedure does not have the characteristic of an actual enforcement, because insolvency does not provide the guarantee of the effective satisfaction of the claim right against the debtor. The creditor entitled to request the opening of the insolvency procedure must have against his debtor a clear, liquid and exigible claim for more than 60 days, in a minimum quantum established by the law.
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In this study we are making reference to the acceptance of the bill of exchange in the Republic of Moldova and in Romania. The bill of exchange includes the drawer’s order addressed to the drawee to pay to the holder of the bill of exchange (payee) the amount of money mentioned in the title. This order itself includes only an obligation of the drawer to determine the payment of the amount of money to be made to the beneficiary, as well as a designation of the person (the drawee) which is going to make the payment at maturity. But the obligation to pay the amount of money does not arise from the order given by the drawer, but from the expression of the will of the drawee itself. So only by accepting the order the drawee becomes acceptor, that is debtor of bill of exchange, and will be obliged to pay at maturity the amount of money provided by the bill of exchange. By accepting the bill of exchange, the drawee becomes the principal debtor and, as a consequence, he must be presented with the bill of exchange.
