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Faptul că în cuprinsul art. 6 și art. 7 din Legea nr. 193/2000 1 legiuitorul a reglementat efectele constatării caracterului abuziv al clauzelor contractuale, fie în sensul derulării în continuare a contractelor după anularea parțială a acestora, fie în sensul rezilierii, cu posibilitatea stabilirii răspunderii în forma daunelor-interese, nu poate fi considerat a semnifica inaplicabilitatea dispozițiilor Legii nr. 193/2000 contractelor ce nu se mai află în executare, urmare a rambursării anticipate. Nu este relevantă, sub aspectul aplicării Legii nr. 193/2000, împrejurarea că la data formulării acțiunii în constatarea nulității absolute a unor clauze contractuale contractele încheiate cu banca încetaseră, ca urmare a rambursării anticipate a creditelor, deoarece, în raport cu efectele sancțiunii nulității absolute, caracterul abuziv al unor clauze poate fi invocat oricând, iar nu doar în privința unui contract în derulare (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 1987/2020, în „Buletinul jurisprudenței 2020”, p. 355 și urm.) -
Trafficking in human beings is an offence against human dignity and fundamental freedoms and, therefore, a serious violation of human rights. The Group of Experts on Action against Trafficking in Human Beings (GRETA) emphasizes the state’s obligations to respect, fulfil and protect human rights. Such protection includes measures for the proper identification of all victims of trafficking in human beings. It also involves measures to strengthen the rights of trafficked persons, strengthen through appropriate protection, assistance and remedies, including recovery and rehabilitation, which are non-discriminatory regardless of their residence status. By virtue of this fact, in this article we pursue the following objectives: identification of the mechanism for protecting the victims of trafficking in human beings in terms of national and international regulations; knowledge of national and international legal provisions in the field of criminalization of trafficking in human beings; continuous adaptation of investigators to new challenges related to preventing and combating trafficking in human beings; exposing the general and special conditions of hearing the victims of the offences of trafficking in human beings. All these are able to improve the efficiency of the activity of hearing the victims of the offences of trafficking in human beings.
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The authors discuss a guideline given to the prosecutor’s offices through a Minutes of non-unitary practice concluded on 30.07.2020. The guideline refers to the way in which the legal classification must be made, in case of committing the deeds provided by Articles 2 and 3 of the Law No 143/2000 on preventing and combating illicit drug trafficking and consumption, in reference to the Decision No 3/2017 of the High Court of Cassation and Justice, in the case of international drug trafficking, when the act of bringing into or taking out from the country without right is committed in different circumstances of place and time. The authors, analyzing the given guideline, conclude that it is unrealistic.
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The principle of the fairness of the administration of evidence represents the rule that prohibits the use of any strategy or maneuver which has as its object the administration of a piece of evidence in bad faith or which has the effect of provoking an offence to obtain a piece of evidence, if by these means the dignity of the person, his or her rights to a fair trial or privacy or professional secrecy are infringed. The object of the present study is only the examination of the last of the aspects of the principle of loyalty, as it is regulated by the Criminal Procedure Code, respectively „the entrapment to commit a crime”. We do not intend to make a detailed presentation of the jurisprudence of the European Court in this matter, but only to point out the general principles that should underlie the analysis to be carried out by the judiciary and to exemplify some solutions in judicial practice. Finally, we will try to draw attention to the delimitation between „entrapment to commit a crime” and „entrapment to evidence” and to establish exactly what is the procedural framework in which these aspects can be invoked.
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The violation of the rules of criminal law by a natural or legal person produces numerous consequences, both on the environment in which the offender lives and on his personality. Thus, criminal sanctions are applied to him with the purpose of preventing the commission of other deeds prohibited by the criminal law, but also of his re-education. However, the legislator, for reasons of criminal policy, has decided to regulate some situations that lead to saving the offender from the punishment provided by law. Among these situations are also the causes of impunity. The article aims to analyze the terminology used by the legislator in drafting cases of impunity and the repercussions that a misunderstanding thereof can have on the addressee of the criminal norm. For the elaboration of this article, doctrinal sources were used in which there have been defined causes of impunity and the moment in which they intervene, but also solutions found in the mandatory case law.
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The increase of the volume of regulations influences the activity of the companies and of the administrators, implying the risk of the latter being liable to the company for legally non-compliant business decisions. Part I of the study examines the legal regime of the obligation of the administrators to comply with the law and the implications of intentionally making business decisions contrary to the law. The conclusion is that the obligation to comply with the law can be seen as an independent obligation or explained through the doctrine ultra vires, but it can also be associated to the obligations of loyalty, good faith and diligence. Part II of the study analyzes whether there are potential exceptions that may justify the making of some legally non-compliant decisions and whether the liability of the administrators could be excluded or limited in certain situations. In principle, the making of profit, the attainment of other interests for the company or the ratification of the decision by the shareholders are not able to justify and exclude the liability of the administrators for making decisions contrary to the law. These decisions also exclude the application of some guarantees against liability, such as business judgment rule, the liability clauses and liability insurance. However, the social, economic and technological transformations accompanied by the inefficient legislation and by the phenomenon of regulatory entrepreneurship can provide sufficiently convincing arguments to change the paradigm in respect of the obligation of compliance. Although the proposed problems and solutions seem obvious, the study raises for discussion some aspects not addressed in the local doctrine, but which do not lack theoretical and practical importance.
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By this study we aimed to proceed to a configuration of the notion of „criminal case”, used by the legislator in Article 29 (1) i) of the Government Emergency Ordinance No 80/2013 on the judicial stamp duties, taking into account in our approach in a correlated way, on the one hand, the case law of the Constitutional Court, of the High Court of Cassation and Justice and of the other courts of law, on the other hand, the doctrinal considerations on the mentioned article, and of the institutions with which the notion necessarily interacts. The approached topic has an inter-institutional nature, because it is necessary, for its correct approach, to resort to legal institutions dealt with by the criminal procedural law (the criminal action, the solutions pronounced in a criminal file, the subjects of the criminal proceedings, etc.), but, of course, the civil procedural law (the civil action, the establishment of judicial stamp duties, the cause of the application for summons, etc.). We consider that the present article presents first of all a practical interest, because, in the activity of the courts of law, the interpretation of Article 29 (1) i) of the Government Emergency Ordinance No 80/2013 is divergent and non-unitary, due to an acute lack of terminological unity, and this deficiency can be reflected in an impairment of the quality of the act of justice and, further, in a decrease of the citizen’s trust in justice. The article is structured in two essential parts, the first with a general character that includes the sections „Introductory Considerations”, „Arising the questioning” and „Interpretation Tools”, and the second with a special, applied character, that includes the sections „The situation in which the civil action is exercised separately before the civil court after the criminal file has been solved in the criminal investigation phase by a solution of dismissal or abandonment of the criminal prosecution”, „The situation in which the civil action is exercised separately before the civil court without having ordered a solution within the criminal file” and Conclusions”. It should be emphasized that, in order to formulate the answer to the approached subject, our thought was oriented, first of all, to those for whom the act of justice is done – the citizens –, proposing solutions that in our vision correspond to some requirements of fairness and equality before the law. Likewise the topic subject to discussion was not approached in an exhaustive way, being only the starting point in the debates on this topic that are taking place and, of course, that will further take place. We have tried to prove that there is a „criminal case”, within the meaning of the mentioned text, only when the basis of legal actions, be they civil or criminal, is a deed provided by the criminal law (essence condition) for which the initiation of the criminal action was ordered (condition of nature). Finally, we consider that the variant of the proposed interpretation will also have the effect of discouraging processual or abusive conduct, reflected in the purely formal notification of the criminal prosecution bodies only in order to benefit from an exemption from the payment of the judicial stamp duties before civil courts, which thus diverts the analyzed legal provision from the purpose considered by the legislator at the time of its enactment.
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The action regulated by Article 1064 of the Civil Procedure Code has a special regime, derogating from the classic situation of tortious civil liability, regulated by Article 1357 of the Civil Code. The practical situation of this action is somewhat uncertain, as there is no unitary judicial practice that decides the legal nature of the action for damages provided by Article 1064 of the Civil Procedure Code. In these conditions, we considered it opportune to analyze the legal nature of the action for damages regulated by Article 1064 of the Civil Procedure Code, in a parallel vision with the provisions of Article 1357 of Civil Code, which regulates tortious civil liability. All this, by reference to those established by a recent court decision resolving such an action for damages. In the present study we tried to offer a perspective and a practical analysis on several situations generated by the application of Article 1064 of Civil Procedure Code.
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The study tends to discern the essential characters and the legal regime of the administration of the assets of another, which represent a novelty in the landscape of our legal system. After examining the general regulatory framework of this institution and the special one in the matter of guardianship of the minor and of the ad-hoc guardianship, we argued that the obligations of the management bodies of the legal person or of the trading companies should not be reduced to mandate relations concerning legal relations with third parties, because the entire regulation regarding the attributions of these bodies in relation to the patrimony of the legal person or of the company is impregnated by the spirit of the institution of the administration of the assets of another. In approaching the institution, we have analyzed the manner of adoption of the decision-making acts compared to the adoption of the decisions in matters of co-ownership and the measures that the court of law can take in case of the decision-making blockage. With regard to the plurality of administrators, there have been brought to attention the issue of their liability, the exceptions to the solidarity rule, including the liability in case of delegation of attributions. Depending on the powers granted to the administrator by the act of appointment, it has been marked the delimitation between the simple administration and the full administration, with the legal regime related to each form of administration. In another section, there have been examined the common rules of the two forms of administration regarding the separation of patrimonies, the guarantees, the administrator’s liability in the relations with third parties and the beneficiary, in case he acted in his own name or in excess of the proxy, the procedure of exercising the control of the beneficiary on the manner of administration and its efficiency, the ways of cessation of administration and its effects with special outlook on the handover of the administered assets, the expenses deducte d from the administered patrimony, as well as the expenses incumbent on the administrator under the contract of administration.
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After a summary examination of the mechanisms that develop the unilateral and conventional resolution, the author finds that the specific formalism established by the Civil Code for achieving the objectives of the pacts agreed by the parties is – in some situations – difficult to fulfil, in the context in which the partners do not know or cannot rigorously follow the steps required by the delay procedure. The uncertainties that the mechanism can produce in special conditions are observed and, then, practical solutions are suggested, starting from the premise – generally accepted – that the commission pact is itself a subsequent and accessory convention to the fundamental contract.
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Potrivit art. 335 alin. (1) C.pr.pen., dacă procurorul ierarhic superior celui care a dispus soluția constată, ulterior, că nu a existat împrejurarea pe care se întemeia clasarea, infirmă ordonanța și dispune redeschiderea urmăririi penale. Dispozițiile art. 317 se aplică în mod corespunzător. Conform art. 280 alin. (2) C.pr.pen., actele îndeplinite ulterior actului care a fost declarat nul sunt la rândul lor lovite de nulitate, atunci când există o legătură directă între acestea și actul declarat nul. Articolul 346 alin. (3) lit. a) C.pr.pen. prevede că judecătorul de cameră preliminară restituie cauza la parchet dacă rechizitoriul este neregulamentar întocmit, iar neregularitatea nu a fost remediată de procuror în termenul prevăzut la art. 345 alin. (3), dacă neregularitatea atrage imposibilitatea stabilirii obiectului sau limitelor judecății (cu notă aprobativă).
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Dreptul de trecere, reglementat de art. 616–619 din vechiul C.civ., trebuie înțeles sub trei ipostaze: aceea a dreptului de a cere recunoașterea servituții de trecere, ipostaza exercitării servituții legale de trecere și ipostaza dreptului de a cere modificarea servituții legale de trecere. Legat de dreptul de a cere recunoașterea servituții de trecere, acesta este considerat ca având un caracter potestativ, constituind o simplă facultate pentru proprietarul locului înfundat. Prin urmare, atunci când un imobil devine loc înfundat, proprietarul său poate reclama, prin manifestarea sa unilaterală de voință, să îi fie stabilită o servitute legală de trecere. Caracterul potestativ al dreptului rezultă cu claritate din formularea „poate reclama” din art. 616 din vechiul C.civ. (Curtea de Apel Craiova, Secția civilă, Decizia nr. 739 din 9 iulie 2019, www.rolii.ro)
