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Formalism in Roman law prevails in all its branches, starting with the court procedure and ending in the interpersonal relations. Its role was to ensure the validity of consent and the procurement of evidence. The legal act in the Roman law was practically non-existent. The Roman legal documents received the proper form after the practice, according to the existing customs. It was the custom that dictated the form which any instrument meant to produce concrete legal effects, but also future legal effects, had to have. The legal report was formed through gestures and religious formalities, which gave rise to principles that ensured the optimal functioning of the legal system related to the context of that age. The updating of the formalism was required when there was an obstacle in achieving the goals of public and private order. The need to change the private law emphasized by the subjects of a legal relation and imposed by the economic evolution of trade has transformed a formalism that had its origin in religion, into a formalism dictated by current practices. In the current law, the civil legal act is born by the express manifestation of the will of the subjects of law, a will that must take a certain form. The observance of the form is ensured by the procedural formalism imposed by the legal norms in force. The present study analyzes the formalism of the Roman law and its imprint in the formation of the legal act from the positive law -
The study addresses good faith as a uniform, but flexible, multi-faceted concept within contractual relationships. After analyzing the ambivalent character of the concept of good faith, in antithesis to the abuse of law in the form of bad faith and contractual wrongdoing, the study leans on the functions of good faith, which materialize the principle at its institutional and formal dimensions, namely the interpretative function of contracts, the completive, moderating or limitative, and adaptive function. In approaching the contractual illicit and the bad faith, as a basis of contractual liability, the study shows that good faith is a standard in quantifying them, and the legal language of good faith is a supreme norm of the contractual law, in a means of contractual jurisdiction, meant to limit the principle of contractual freedom.
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In this study, the author analyzes the possibility of granting the public judicial aid, according to the national legislation and the case law of the European Court of Human Rights, regarding the bail necessary to be paid in the cases regarding the provisional suspension of enforcement, according to Article 719 (7) of the Civil Procedure Code. Regarding the situation prior to pronouncing the decision in the Case S.C. ECO INVEST S.R.L. and Ilie Bolmadar versus Romania, special attention is paid to the way of transposing the Directive of the Council of the European Union 2003/8/EC to improve the access to justice in cross-border disputes by establishing some minimum common rules relating to the legal aid for such disputes, as well as the jurisprudential reversal of the Case Micallef versus Malta. At the same time, there are emphasized the relevant provisions of the Government Emergency Ordinance No 51/2008 on judicial public aid in civil matters.
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The purpose of this study is to present the Case Loomis v. State of Michigan, settled by the Supreme Court of the State of Wisconsin in the United States of America, on how the right to a fair trial may be affected assuming that the solution is pronounced by the judge, having at his disposal, among the usual elements of fact and of law in a classic trial also a report provided by an artificial intelligence system. The study contextualizes the time and the place in which the case appeared, realizing in its beginning a brief parallel between the characteristics of the American justice system and the European one in the field of fundamental rights, with a marginal incursion in the scope of the principle of proportionality. In this framework, the respective case is presented with emphasis on the arguments used by the judges of the Court, in order to reach the conclusion that the right to a fair trial is not violated insofar as the conclusions produced by the algorithm are used by observing some guiding principles, drawn on this occasion. The conclusion of the study shows that the arguments presented in the North American system can remain valid and can be transposed into the European system, when it will face such a problem. Finally, the final part is intended to be a plea for awareness of the immediate reality of artificial intelligence, which will penetrate more and more in the legal field, including in the judge’s office, as well as for a mental openness towards these new concepts.
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The manner of regulating the contestation of the claim in the payment order procedure, generates a few controversies, indicated by the doctrine related to this procedure. Thus, the first of these concerns the contestation of the claim after the deadline for the submission of the claim is exhausted, in case the debtor does not meet or does not respect the related time limit, namely the admissibility in principle of such a contestation. The answer is affirmative, but with nuances; the claim can also be contested in such a situation, but only by way of pleas of public order, of the plea of inadmissibility due to the necessity to administer some evidence incompatible with the payment order procedure or through defences on the merits, which will be justified only by the evidence administered until the moment when the claim is contested. Operating an analogy of study with the contestation to enforcement, considered as a contestation to title, it is necessary to specify whether the legislator’s generic references to the contestation of the claim concerns the situation of a contestation to the title related to the claim inclusively. The conclusion is that the legislator has used the term „contestation” in its meaning lato sensu, consequently the answer is affirmative. Another controversy concerns the situations when the debtor does not specify his procedural position throughout the procedure, that is, if the judge of the case is authorized to question ex officio the possible reasons that would constitute such contestation to the claim. The conclusion of the study, derived also from the European legislation and judicial practice, is that the answer is still affirmative, but only provided that there is an express regulation imposing such an obligation for the judge of the case, such as in the situation of abusive contractual clauses. In the absence of any reference of the legislator within the regulation of the payment order procedure to the counterclaim, it is necessary to answer whether the institution of the counterclaim, regulated under the common law procedure, is compatible with this special procedure.
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The study raises the issue of the legal relations between the notary public and the client. A contract of provision of services is concluded between the notary and the client, specifying that the services of the notary public are provided by the law and regulated by imperative rules. By the provisions of the Law No 36/1995, Article 28 paragraph 2 c) and by the Norm approved by the Order of the Minister of Justice No 943/C/2005 the legislator established only the lower limit of the notarial fee, the actual level of the fee being determined by negotiation between the notary and the client. The provisions of Article 32 of the Law No 36/1995 have established only the generic right of the notary to charge the fee, its quantum for each notarial service being established under the terms of the contractual relation between the notary and his client.
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Potrivit art. 349 alin. (2) C.pr.pen., instanța poate soluționa cauza numai pe baza probelor administrate în faza urmăririi penale, dacă inculpatul solicită aceasta și recunoaște în totalitate faptele reținute în sarcina sa și dacă instanța apreciază că probele sunt suficiente pentru aflarea adevărului și justa soluționare a cauzei, cu excepția cazului în care acțiunea penală vizează o infracțiune care se pedepsește cu detențiune pe viață. Totodată, conform art. 374 alin. (4) C.pr.pen., în cazurile în care acțiunea penală nu vizează o infracțiune care se pedepsește cu detențiune pe viață, președintele pune în vedere inculpatului că poate solicita ca judecata să aibă loc numai pe baza probelor administrate în cursul urmăririi penale și a înscrisurilor prezentate de părți, dacă recunoaște în totalitate faptele reținute în sarcina sa, aducându-i la cunoștință dispozițiile art. 396 alin. (10).
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Artificial intelligence can be classified into analytical artificial intelligence, human-inspired intelligence and humanized intelligence, and in reference thereto it should be noted that, although computer systems reproduce human emotions and expressions, it is difficult for them to comprise a sufficiently large database so as to be able to express the human feelings of a person at the time of making a decision. Although the predictability of a judicial decision by artificial intelligence may take the form of legal certainty, in criminal matters, however, the data used may not reflect the complete reasoning of the judge, which is composed of a multitude of decision-making factors. Therefore, the authors consider that in criminal matters the decision-making must belong to the human judge, the judge being the one who will decide on the basis of the evidence administered not only with regard to satisfying the objective side of the offence, but especially with regard to its subjective side. -
The amendments and additions to Article 56 of the Labour Code have eliminated the discrimination on grounds of sex established by the Constitutional Court in the Decision No 387 of 5 June 2018 and they reflect the European and national policy of maintaining in service the employees who meet the retirement conditions for old age, but the new provisions of Article 56 of the Labour Code require a relatively complex interpretation, which raises problems in terms of their clarity and predictability and makes their understanding by the subjects to whom they are addressed difficult.
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The article reviews the main features of digitization and its implications in the economic and social field. The technological perturbations on the economy, people’s conduct, medicine, law, psychology and education are significant. The author proposes the establishment of a National technical-legal laboratory, besides a faculty of law, and of a scientific event, entitled „Law and Digitization – Improving Legal Services”, to help improve access to justice in a digitized world.
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In this study the authors intended to investigate the procedural rules specific to the judicial control of the acts issued by the public authorities in the matter of restitution of properties taken over by the State during the communist regime, as well as the processual guarantees enjoyed by the persons concerned for the effective exercise of the right to a fair trial and the right to respect the goods regulated by Article 6 paragraph 1 of the European Convention on Human Rights and, respectively, Article 1 of Protocol No 1 to the Convention. During this scientific process, the authors have identified the shortcomings of the legislation in the matter and have formulated de lege ferenda proposals for complying with the Pilot-Judgment of the European Court of Human Rights in the Case Maria Atanasiu and others against Romania, whereby it has been decided that the Romanian State takes measures to guarantee the effective protection of these rights. The proposed legislative amendments have as purpose to re-open access to justice for the eligible persons, in compliance with the requirements of ECHR law, in the cases where public authorities refuse to resolve their requests for restitution of buildings abusively taken over by the State.
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Over time, the claim for awarding legal costs in the civil trial has not been paid due attention. Starting with 1959, following a decision of the Plenum of the Supreme Tribunal, in the practice of the courts, as well as in the specialized works has been taken over automatically, until it has been imprinted in the collective mind, the idea that the court costs can be claimed at any time until the debates are closed on the merits, and the court may even draw attention to this issue, or they may be claimed separately, even if they were initially requested within the dispute. The present study aims to analyze the legal status of awarding the claim for costs, while giving at the same time the correct legal classification of this claim by reference to the texts of the Civil Procedure Code. Thus, we will show that this claim brought to the justice can not be subject to the discretionary will of the parties, but must be circumscribed by the procedural rigors with regard to filing a claim before the court. In the first instance, the party must accordingly request court costs, respectively by way of introductory application, an objection, an intervention, etc. If it did not do it, as a rule, it will not be able to claim them within that litigation. If it did it, but then waives their request in the initial litigation, wishing to claim them separately, it will be subject to the consent of the opponent. In the redress or withdrawal means of appeal, claiming the court costs is conditionned twice, both in the compliance claim before the court of first instance and in the compliance claim before each court that has examined the case (by way of appeal, objection, etc.). The practical implications of the study are some of the most spectacular, since the party that does not comply with the procedural rigors of the claim for court costs will either be in a position to promote separate action for their recovery or in the event of a final impossibility to recover, in whole or in part, the advanced court costs. -
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. -
The author carries out a thorough analysis of all the regulations under art. 1381-1395 of the new Civil Code regarding the recovery of damages caused by extra-contractual causes. Thus, in the first part of the study, the author approaches joint liability, in case two or more persons are liable for one and the same damage. Also, a large part of the work deals with the principles governing the right and correlative obligation to recover the damages: the principle of full recovery and the principle of recovery in kind of the damages; both principles are explicitly provided in the texts of art. 1385 and 1386 of the new Civil Code. The central part of the work deals with a review of the recovery of damages by means of a money equivalent, referring in particular to the establishment of compensation for the full repair of personal injuries, both in their material and in their moral form; in the same context, large discussions are presented in relation to the pecuniary recovery of indirect damages. Another special place in the work is held by the presentation of the regulation regarding the correlation between the social security rights of the immediate or the indirect victim and the compensation that may be granted to such victim for recovery of the damages caused. The study ends with a review of the extinctive prescription of the right to claim and obtain in court the recovery of damages under tort liability. -
The legal regime of the penalty clause is established under the purports of Articles 1538-1543 of the new Romanian Civil Code (yet unenforced). Analysis of these regulations is undertaken in the study hereby by putting forward three issues considered defining: the legal nature of the penalty clause, its incidental character and mutability. Taking as reference point the definition of penalty clause set forth in Article 1358 par. (1), it is argued that the Romanian legislature has endorsed dualistic theory, according to which the penalty clause is a civil reparation remedy or a sanctioning repair, for the case of unlawful non-performance of the main contract by the debtor. The incidental character of the penalty clause is explained on account of the dependency relationship that exists between it and the obligation arising out of the main contract. Consequently, in principle, the penalty clause follows the legal destiny of the main obligation, according to the principle accesorium sequitur. To this rule there is but one exception: resolution of the main contract does not affect the existence and enforcement of the penalty clause. In terms of mutability of the penalty clause, it is found that its judicial review is permissible only by way of reductibility, where it is manifestly excessive as compared to the foreseeable damage caused to the creditor through unlawful non-performance of the obligation arising from the main contract. -
The liberty of the person is one of the most important social values, its importance requiring its protection by criminal law rules, in all the states with acknowledged democratic systems. Taking into consideration the content of the offense of deprivation of liberty in the new Criminal Code, the authors made a brief examination of these provisions and carried out a comparative analysis with the current provisions. The comparative analysis refers to the differences existing between the two accusations, differences noted in particular as regards the accusation of aggravated forms of this offense. The authors also carried out a comparative law examination proving that the illegal deprivation of liberty is an action regarded as an offense by all the countries, and that there are many elements of similarity, as well as certain insignificant differences between its content in various legislations. In the conclusions they formulated, the authors proposed the addition of other aggravated forms to the provisions of the new Criminal Code, forms that are in fact provided both in the current Criminal Code and in the legislations of other European Union countries. -
This study analyzes the new regulations of the Romanian Civil Code (Law no. 287/2009, republished on October 1, 2011) regarding compensation for harm caused to the human body. In this sense, the special rules regarding compensation for personal injury in the said Civil Code are discussed, then a definition of such injuries is proposed, the natures of the injuries in question are emphasized, and, finally, the special uses of the full compensation injury principle in the area of personal injuries are pointed out. -
The author conducts a thorough analysis of the legal content regarding the crime of misappropriation of public tenders provided by art. 246 of the new Criminal Code, incrimination ex novo. With reference to the structure of this infringement, the object of criminal protection, the subjects, the objective and subjective aspect, the forms, modalities and sanctions provided by the law are examined in detail. Within the complementary explanations, the connections of the misappropriation of public tenders with other crimes and some procedural aspects are tackled with. Further, the legislative antecedents of this incrimination regulation, the solutions to be followed in case of occurrence of temporary situations and some elements of comparative law are presented. The author does not hesitate to express his opinion as regards the constitutional content of this criminal deed, its systematization and nature and to advance some of his own solutions and ideas related to this aspect. Towards the ending of this analysis several conclusions and proposals de lege ferenda are presented in order to determine an appropriate protection of the values and social relations concerned by this incrimination, an unitary enforcement of the text and implicitly a better performance of the criminal justice within Romania.
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The above study examines specific issues arising from the inheritance regime where the assets of the deceased’s estate include shares, following the death of a limited liability company associate. -
In this study the author makes a comprehensive analysis of cyber crime and how to fight, prevent and investigate this. The analytical approach is based on the definition of cyber crime, of its characteristics, and finally on the identification of the specific means of evidence that are used in the criminal investigations -
This paper presents propter rem obligations in terms of their distinctive characteristics that prevent their inclusion in the classical categories of property rights and obligations. The incidental nature of these obligations is emphasized in relation to the real right on which the prevalence if the intuitu rei nature is grafted in relation to that of intuitu personae and, as a consequence of these, the propter rem obligation perpetuity. The purpose of the propter rem obligation, is to facilitate the operation of real estate that is subject to real right on which is grafted, helps us decipher the accesoriality relation concerning the real right, the transmission mechanism of these obligations, and the abandon as a sanction occurring in case of failure to comply with these obligations. Recourse to abandon is not only the sanction for the non-performance of these obligations, but also the individual having the propter rem obligation, who releases himself from the performance of the obligation in this way. The last part of the paper helps to explain how certain propter rem obligations set forth in the Civil Code or in certain special laws are created and transmitted, which raises questions on the propter rem nature of some of these. -
In terms of the decision not to initiate criminal proceedings, ordered by the Prosecutor during the stage of preliminary documents, it is mandatory to communicate the decision to the prejudiced person, indicter and perpetrator, if known, and the deadline of 20 days for filing the complaint with the Prosecutor’s Office runs from the date of serving the decision. For the people who consider themselves injured as to their legitimate interests by the adoption of the decision not to initiate court proceedings, there is neither the obligation, nor the opportunity for the communication thereof and, in this case, the 20-day deadline for filing the complaint against the decision runs from the date on which the person entitled was informed, in any way, about the adoption of the decision in question. -
This study sets some reference points for a new institution regulated by the Criminal Procedure Code – the judge of rights and freedoms – from a perspective which stresses its role in protecting the rights and fundamental freedoms, as they are established by the Constitution and by the international treaties on human rights to which Romania is a party. -
In the current architecture of the Criminal Procedure Code, the regulation of the special methods of surveillance or investigation is based, from the perspective of the legislative technique, on a unified, foreseeable and predictable approach, eliminating the arbitrary. The special methods of surveillance or investigation are meant to contribute, by their results materialized in proofs, to proving in a direct manner the offences committed by the suspects or/and the defendants. The specificity and concrete particularities of the circumstances of some of the corruption offences, the offences assimilated to the corruption offences, as well as those of drug trafficking, trafficking in weapons, human trafficking, acts of terrorism, cybercrime, expressly enumerated within Article 139 (2) of the Criminal Procedure Code suppose that the probative includes, in a significant proportion, proofs obtained by way of special methods of surveillance or investigation. -
In this article, the authors examine the modality of conducting the procedure of replacement of the measure of preventive detention with the preventive measure of judicial control on bail, respectively if, according to the regulations of the Criminal Procedure Code, at the same time with the admission in principle the judge examines inclusively the grounds of such application or, on the contrary, it requires an initial examination strictly in terms of fulfilment of the formal conditions, finalised with the admission in principle and with fixing the quantum of the bail, and only in the second stage the examination of the application on its merits in terms of its rightfulness. Likewise, there are analyzed the legal remedies against the interlocutory judgment of admission in principle, respectively of the interlocutory judgment whereby the judge rules on the merits of the case. Finally, the authors present the contradictory solutions at the level of different courts of appeal and of the High Court of Cassation and Justice, analyzing inclusively the report drawn up by the supreme court, the Panel for the settlement of some points of law in criminal matters. Likewise, they formulate a series of de lege ferenda proposals, which aim to eliminate the contradictions between the different articles of the Criminal Procedure Code in this matter.
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Within every form of legal liability, the act inconsistent with the legal rules for which liability is engaged is qualified expressly by law. This study aims to analyze comparatively the offence and the contravention, regarded in the light of recent legislative influences, appeared in the field of criminal law. In order to achieve this intended objective, the structure of the material elaborated by the author envisages the following sequence: the historical evolution of the offence and of the contravention; the definition of the offence and of the contravention; the system of punishments and the sanctioning regime; other aspects of the legal regime of the offence and of the contravention. The analysis covers the following: the stage of legislation, the point of view of the doctrine, as well as the case-law. Finally, there are presented the conclusions reached as a result of this approach and there are formulated de lege ferenda proposals.
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In this article the author raises for discussion some theoretical and practical issues referring to the judicial control and to the judicial control on bail, preventive measures which have been regulated in this form in the new Criminal Procedure Code, focusing on how they are implemented, in order to avoid some errors or confusions related to their interpretation and application. -
Contractul de asistență juridică învestit cu formulă executorie, în condițiile legii, constituie titlu executoriu cu privire la restanțele din onorariu și alte cheltuieli efectuate de avocat în interesul clientului. Este nelegală executarea silită pornită pentru o sumă pe care creditoarea o apreciază ca fiind datorată cu titlu de prejudiciu pentru încălcarea obligațiilor contractuale. Creanța nu reprezintă o plată pentru o activitate profesională desfășurată de societatea de avocatură, ci o despăgubire pentru încălcarea clauzelor contractuale de către contestator, având astfel caracterul unei clauze penale. Din această perspectivă nu prezintă relevanță în ce măsură creditoarea putea desfășura activități de intermediere sportivă ori dacă putea pretinde debitorului executarea obligației garantate potrivit contractului de ipotecă mobiliară pentru o nerespectare a obligațiilor asumate în cazul unui transfer. Nu este permis ca prin convenția lor părțile să poată ca, sub denumirea de „onorariu”, să-și creeze un titlu executoriu pentru o creanță care în realitate este o despăgubire.
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The article presents the results of a research conducted in six European countries mainly on the analysis of the exceptional nature of preventive arrest within these jurisdictions. In this article there are presented the main results of the research conducted in Romania, research that was based on a series of interviews with judges, prosecutors and lawyers. The main areas investigated have concerned aspects such as the analysis of the decision-making process, the situation of the foreign citizens subject to preventive measures, the manner of application of alternative measures to preventive arrest, the analysis of the current criminal processual normative framework, as well as of the impact in the current practice of the European regulations, etc. The conclusions of the study are in the sense that in Romania there have been registered also some aspects representing progress in the sense of protection of the fundamental human rights in the cases where it is raised the question of taking some preventive measures in the criminal cases – such as the fact that the tendency, at least in terms of using the preventive arrest, is a decreasing one. However, major deficiencies have also been found, related to the organization of the initial and continuing training for magistrates, in the sense that they have been found to be unaware of judicial instruments important for their activity. It is precisely about instruments that are capable of improving the situation of foreign persons in relation to the state where it is raised the judicial matter – respectively the European Surveillance Order.
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Within this study, the authors intend to analyse the enforcement of judgments pronounced by the administrative disputes courts, in the light of the general provisions of the Civil Procedure Code and of the special provisions of the Law on administrative disputes No 554/2004, as well as of the case law in this matter. -
This study includes an analysis of the provisions of the new Criminal Procedure Code referring to the warrant for technical supervision when it concerns the financial transactions of a person in relation to the provisions of Article 153 on obtaining data concerning the financial situation, the utility and appropriateness of using the two institutions, as well as the comparative analysis in relation to the old regulations. The author also presents critical aspects with regard to these institutions, having in view the different interpretations given in the judicial practice, as well as de lege ferenda proposals. The study refers only to the data concerning the financial transactions of a natural or legal person related to a bank account and the subsequent operations. -
This study aims to identify the arguments for which, in the current legislative context, it is not admissible to order the sending of the case for retrial by the judgment pronounced on the application for annulment. The application for annulment, as a legal remedy, is regulated within the procedure of payment order. -
In this paper the author makes an analysis of the provisions relating to „Aggravated theft” (Article 229 of the Criminal Code), from the perspective of the comparative law and of the requirements of the principle of legality. There are emphasized a series of errors produced during the drafting of the text (setting an excessively large number of circumstantial elements, their arbitrary grouping, etc.) and, at the same time, there are presented some solutions to overcome the deficiencies. -
According to Article 172 (12) of the Criminal Procedure Code „After the finalisation of the fact-finding report, whenever the judicial body considers necessary the opinion of an expert or whenever the conclusions of the fact-finding report are contested, an expertise shall be ordered to be made.” This legal text is not correlated with the rest of the provisions of the Criminal Procedure Code in force, nor with the other provisions of the previous codes, therefore, in the author’s opinion, this fact is likely to give rise to controversies. In a different line of ideas, the author argues that the legislator imposes as processual remedy that upon the finalization of the fact-finding report, in case its conclusions are only contested, to order an expertise to be conducted. This hypothesis is even more questionable as there is the possibility that the judicial body appreciates that the opinion of such an expert is not necessary. Thus, the legislator acts instead of the place of the judicial body in deciding on the admissibility of such means of evidence. Starting from such an inadvertence, in a given case, although the judicial body has concluded on the lack of utility and conclusiveness of an expertise, taking into account that one of the subjects to the trial, a defendant in this case, has contested the conclusions of some previous technical-scientific reports and even of an initial expertise report, both the prosecutor, during the phase of criminal prosecution, and the judge, during the phase of trial, had to admit, according to the text of the law, the contestation or the application of that subject to the trial respectively and thus to order an expertise to be conducted. The author believes that the mentioned text provision is also contrary to the contents of several normative acts that provide the independence of the judge and of the prosecutor in the activity of criminal investigation and in the phase of trial, as well as their exclusive competence to decide on the processual acts and measures, as the case is undergoing the phase of criminal prosecution, of preliminary chamber or of trial. Moreover, in support of the opinions which the author has expressed in this article, he also brings arguments of comparative law, showing that the analysis made has not identified legislations or points of view from other countries, convergent with the text of Article 172 (12) of the Criminal Procedure Code. In conclusion, for the reasons shown within this article, the author appreciates that it is required a reconsideration and reformulation of the text of Article 172 (12) of the Criminal Procedure Code from the legislator. -
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). -
In this study, by analyzing the legal issues of the respect due to persons also after their death, the author, after proceeding to a comparative law examination in the matter, further makes a study of the Romanian legislation in the field under debate (mainly, Articles 78–81 of the new Romanian Civil Code, as well as other legal provisions written down in special laws, such as: the Law No 95/2006 on the reform in the field of healthcare, the Law No 104/2003 on handling of human dead bodies and removal of organs and tissues from the dead bodies in view of transplant and others).
