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The state of emergency is one of the two exceptional measures regulated by the Romanian Constitution and by the Government Emergency Ordinance No 1/1999. It is a set of exceptional measures of a political, economic nature and of the nature of public order instituted when there is a serious danger for the national security and the functioning of constitutional democracy. Another legal reason to declare a state of emergency is to avoid a calamity or to exhaust the effects of a disaster. Inevitably, the measures adopted during the state of emergency lead to the restriction of the exercise of certain rights and freedoms, which is why constitutional and legal guarantees must be ensured in order for this restriction not to be abusive. The state of emergency is established for a period of maximum 30 days by decree of the President of Romania. The measures ordered by decree must be approved by the Parliament within a period of maximum 5 days. Contradictory opinions have been expressed in the doctrine regarding the legal nature of the decree of the President of Romania and of the acts issued pursuant to this decree (military ordinances and orders). Recently, the constitutional contentious court and the administrative contentious courts have ruled on the legal nature of administrative acts issued under the state of emergency. The next step in the evolution of this problem should be the reform of the normative framework regarding the exceptional states in accordance with the current provisions of the Basic Law, with the constant case law of the constitutional contentious court and, last but not least, with the approaches of some similar European regulations. -
În România, dreptul de proprietate privată este unul esențial, fiind prevăzut în Constituție1 în cadrul capitolului II referitor la drepturile și libertățile fundamentale. Acest act normativ reglementează dreptul de proprietate privată în mod detaliat, în cele nouă alineate ale art. 44. Pentru a reglementa acest drept, legiuitorul constituant a avut la dispoziție un vast material documentar, format în primul rând din dispozițiile vechiului Cod civil referitoare la proprietate și la regimul ei juridic, bogata doctrină acumulată între timp, precum și practica judiciară a instanțelor, toate acestea fiind adaptate la dinamica continuă a vieții sociale și a circuitului civil din societatea românească, la care se adaugă dreptul comparat în materie
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Cloud Computing is considered one of the most significant advances in information technology. Specialists agree that in a matter of a few years, almost all data will be in the Cloud. The field of digital forensics has grown rapidly over the last decade due to the rise of the Internet associated crimes and different frauds. Cloud forensics is the process of identifying, preserving, analyzing and presenting digital evidence in a manner that is legally acceptable. Traditional computer forensics consists in collecting data where the system is located. Cloud forensics is difficult because there are challenges with data location, multi-tenant hosting, synchronization problems and techniques for data segregation. In this paper we focus on the different stages of a Cloud Computing forensic search. For each phase of the Cloud forensic process, we have included a list of challenges and analysis of their possible solutions. Our research indicates that some problems are technical and others are legal, however the biggest challenges are not technical but legal.
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The present study illustrates a sensitive issue of the disciplinary procedure concerning civil servants, insufficiently debated in the speciality literature, namely the possibility of the titular of the disciplinary complaint to resort to the courts in order to refute the report by which the disciplinary investigation is finalized with a proposal to classify the complaint. The research is structured starting from the solution given to this issue by the courts themselves, in the few decisions that deal with the subject, a solution which the author attempts to combat in the light of the current legislation in force, insufficient in its turn, corroborated with the relevant approaches taken from the decisions of the Constitutional Court. Apart from the elements of novelty and originality of the analysis, it is distinguished by its applied character, knowing the ideas conveyed by the author being necessary not only for the civil servants involved in disciplinary conflicts – as defending parties or as members of the disciplinary commissions –, but also for the judges called upon to decide on the legality and grounds of the solutions for dismissal of the disciplinary complaints. The thesis of inadmissibility of the actions seeking the annulment of the dismissal solutions should be reconsidered, the author’s opinion being that the commissions’ reports can be included among the administrative acts (by express or tacit validation by the leader to whom they are presented) or in the refusal to perform an administrative operation, as a challengeable act under Article 8 (1) of the Law on administrative disputes No 554/2004. It is certain that concealing reports from the commission against any form of control is not only harmful (at least at moral level) to the titular of the complaint, but also abnormal, unjust and unlawful. -
According to the title of this study, the author carries out a thorough analysis of the legal institution of acquisitive prescription in the new Romanian Civil Code (Law no. 287/2009), a Code adopted by the Parliament (but not yet in force) in relation to the same legal institution, as it is legally configured in the Civil Code still in force (since 1865). -
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. -
Assuming the many relationships between cybercrimes stipulated by Law no. 161/2003 and Law no. 365/2002, as well as between those and criminalization under the Criminal Code in force, the author seeks an analysis which could highlight the concerns that may arise in this context. Also, given the applicability title various criminal provisions acquire in a particular concurrence of skills, the author found it necessary to identify the specific indictment’s wording to be applied first, based on an analytical process. These findings were also analyzed with regard to the provisions of the new Criminal Code, verifying whether the new regulations preserve or not the concerns identified within current legislation. Last but not least, reasoning used in the literature in the matter was considered as well as the judicial practice solutions to see how they have resulted in the appropriate identification of the indictment’s wording applicable. -
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. -
The article proposes solutions in the case of concurrence between the reopening of the criminal trial in case of judgment in the absence of convicted person and the resumption of the time limit for appeal, and after an analysis of the two procedures and a comparative analysis of the ordinary and extraordinary means of appeal, it concludes that the reopening of the criminal trial is an extraordinary means of appeal.
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An employment contract is decisively characterized by the relationship of subordination between the parties, which distinguishes it from a civil contract. The reclassification of a civil contract as having the legal nature of an employment contract can be done by the labour law court, by the fiscal control body and, more recently, even by the labour inspector. The paper analyzes the criteria under which such reclassification can intervene, what are its traps and its effects. It is finalized with a series of proposals aimed at simplifying the reclassification operation, as well as providing legal certainty.
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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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The most controversial aspect in the criminal judicial practice, in the situation of invoking the plea of relative nullity of a criminal processual act, is to prove the existence of a processual injury and, related thereto, to prove the sufficient seriousness of the injury caused to the party or to the main processual subject which justifies the cancellation of the act. Most of the times, the party or the subject that invokes the nullity is put in the extremely difficult position to persuade the judicial body that processual injury is sufficiently serious to justify the drastic sanction of nullity. That is why we have considered that it is required a thorough assessment with regard to the standard of probation of injury, of proving the sufficient seriousness of the injury suffered in order to bring about the sanction of nullity. The conclusion we have reached is that the processual injury suffered is sufficient to bring about the sanction of nullity when the violation of the processual rights or guarantees of the parties or of the subjects puts them in the position to no longer be able to defend themselves with the same chance they would have defended themselves if their processual rights had not been infringed.
