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In the presence of an arbitration agreement, the parties remove the general competence of the common law court for any possible disputes that may arise between them. In this article, the author starts from a case settled in the judicial practice. In the present case, although the arbitration agreement was inserted in the contract of the parties, the applicant nevertheless referred the matter to the court of law. In this situation, before the Cluj-Napoca Court of first instance, the defendant wrongly invoked the plea of territorial lack of competence. The court referred with the matter perpetuated the error and admitted the plea, although it should have qualified it as being the plea of general lack of competence of the court of law. The Cluj-Napoca Court of first instance declined the settlement of the case to Oradea Court of first instance, which took the correct measure and declined the settlement of the case to the Arbitration Court attached to the Timiș Chamber of Commerce, Industry and Agriculture. In our opinion, since the parties have established by their will the competence of the arbitral court for any possible disputes between them, they should respect this aspect and should not refer the matter to the courts of law. -
The aim of this study is to point out the way in which transnational spaces exert their influences on the international legal order and the national legal ones. Theorizing transnational law opens the way of such demarche. Therefore, the overview of some schools of transnational law offers the opportunity for understanding the link between transnational spaces, transnational legal orders and transnational law. The transnational spaces "Mitsubishi" and "FIFA" evolve in transnational legal orders; the latter legal orders inspire the scholars to theorize actively the transnational law itself. Such theorizing may help us to be conceptually equipped in front of future transnational spaces.
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The study examines the factoring contract as an easy and quick method of financing of the adherent by way of turning to account of the unmatured claims. The factoring, regulated internationally, has been recognized and defined in the Romanian legislation, but without any regulation of its legal system. After the analysis of the framework contract and of the actual factoring contract, the study examines and explains the forms of the factoring contract and their finality, as well as the constitutive elements of the contract, with reference to the specific of the contracting parties and of the participants, as well as to the derived object, concerning certain, liquid, assignable, but not exigible claims. In the approach of the effects of the contract there have been analyzed the rights and obligations of the contracting parties and the relations generated by the contract. In respect of the obligations of the adherent, attention was paid to the transmission of the right over the claims by means of sale and to the achievement of the conventional subrogation and the moment of transmission of the right over claims, depending on the distinction between old line factoring and the maturity factoring. Likewise, it has been analyzed the legal and conventional obligation of warranty of the adherent in correlation to the risks assumed by the factor, related to payment default of the claims and the insolvency of the assigned debtor. In the same context, it has been also treated the problem of notification of the debtor concerning the assignment of claims, highlighting the consequences of the notification with regard to the enforcement of claims, as well as the aspects of opposability of the assignment to the debtors and to third parties, with reference to recording of the transmission of the universality of claims in the Electronic Archive of Security Interests on Movable Property. The rights and obligations of the factor have been examined from its perspective of owner of the invoices accepted for payment and of the takeover by the latter of the task of collection of claims from the clients of the adherent, in close correlation with the factor’s function of financier of the adherent, by the payment of the claims assigned before maturity. The patrimonial factor-adherent relations have been integrated into the role of the current account opened by the factor for the payment of claims assigned and of the discount covered by the adherent, resulted from the difference between the nominal and conventional value of the claims assigned. By the correlated mechanism of crediting-debiting, the current account also fulfils its accounting function of crediting the adherent with the amounts that the factor collects as mandatary with regard to the invoices not accepted for payment and the function of debiting with the amounts owed by the debtor, following the regression for the claims for which the adherent has conventionally assumed the risk of payment default or of insolvency of the debtor. The effects of factoring contract are analyzed also in terms of its impact in case of insolvency of the adherent, including of the consequences related in this case to the turning to account of the claims assigned with regard to the assigned debtor. It was treated also the reverse-factoring mechanism, as well as the relations between the adherent, the factor and the assigned debtor, in relation to the effects of the notification in terms of the turning to account the claim right of the adherent, of the factor and of the payment obligation of the assigned debtor. In the final part of the study, there have been outlined the legal features of the factoring contract, with special outlook on the character intuitu personae of the contract, on the character of adherence contract and of random contract, in the hypothesis that the factor assumes the risk of payment default or of insolvency of the assigned debtor. The scientific approach led to the classification of the legal nature of the factoring contract as a complex of contracts and legal figures different, but convergent, with its own physiognomy and autonomy, which differentiates the factoring contract from its components. The particular configuration of the factoring contract, which defines it as a whole with its own legal system, has brought to attention the need for demarcation of the contract from its components.
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Potrivit art. 52 alin. (1) C.pr.pen., instanța penală este competentă să judece orice chestiune prealabilă soluționării cauzei, chiar dacă prin natura ei acea chestiune este de competența altei instanțe, cu excepția situațiilor în care competența de soluționare nu aparține organelor judiciare, iar conform alin. (2) al aceluiași articol, chestiunea prealabilă se judecă de către instanța penală, potrivit regulilor și mijloacelor de probă privitoare la materia căreia îi aparține acea chestiune. Conform alineatului (3) al art. 52 C.pr.pen., hotărârile definitive ale altor instanțe decât cele penale asupra unei chestiuni prealabile în procesul penal au autoritate de lucru judecat în fața instanței penale (cu notă aprobativă). -
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În ipoteza în care nu se face dovada că notificarea de reziliere a fost comunicată în condițiile prevăzute în contract nu se poate considera că a intervenit rezilierea și prin urmare operatorul de telefonie nu este îndreptățit la plata despăgubirii aferente rezilierii contractului. Este posibilă constatarea caracterului abuziv al clauzelor contractuale privind plata penalităților de întârziere și/sau a despăgubirilor datorate în caz de reziliere a contractului, însă instanța de judecată trebuie să pună în discuția contradictorie a părților respectivul aspect.
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Domestic violence is a social problem of contemporary communities, including the Republic of Moldova, because it has not yet found effective preventive solutions and there is no consensus on the coherent definition of domestic violence, especially when it comes to the criminological side of this phenomenon. Therefore, following the research of the specialized literature and various normative acts, we can define the crime of domestic violence as a negative social-legal phenomenon, with mass character, variable from a historical point of view, which consists of all illegal acts (crimes and misdemeanors) committed intentionally against family members, as a rule, for the purpose of controlling and dominating them, which causes physical, psychological or material damage, committed in a certain territory, in a certain period of time characterized by quantitative indices (level and dynamics) and qualitative (structure and character).
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At international level growing concerns appeared about the involvement of offenders in transactions with cryptoassets, the market being an unregulated one and providing a dose of anonymity to transactions. In this context, the specialised bodies have initiated a series of recommendations to help the states, but also cryptoasset service providers, to adopt the necessary measures in order to prevent and combat money laundering and terrorist financing. The cryptoasset market is less known to the general public, but for the persons involved in illegal activities, concerned with concealing the source of incomes, it is an opportunity to benefit by those profits, without revealing their source. The cryptoasset market involves rapid changes, new typologies and, implicitly, new risks, being necessary that all these processes be dealt with both by the government bodies and by the service providers. The international approach to cryptoassets differs, as there are states that have forbidden transactions with such assets, states that have adopted regulations, in compliance with the recommendations of international bodies, and also states that have not adopted measures in this field. The study intends to analyze how these recommendations have been taken over and implemented at national level and what are the challenges which the government bodies and the players in the cryptoasset market must face.
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The present scientific approach, springing from the practical, concrete needs, appeared in the space of manifestation of the role of one of the fundamental institutions of the Romanian state, is based on the wider and more complex reality of Romania’s international commitments, particularly the issue to fulfil the obligations arising from its status as a full member of the European Union, in terms of the application of European law, in respect of its fundamental values in relation to the national legal order, especially the priority over the rules of national law. At a conceptual, theoretical level, given these decisive influences of European law on the process of creating Romanian law, in the effective crystallization of the sources of positive law, by virtue of Romania’s accession to the EU treaties, the article intends to assess some possible coordinates of the process of reform of the Legislative Council, under the aspect of its obligations on the line of legislative harmonization, in application of the provisions of Article 79 of the Constitution, regarding the essential role of this institution in terms of systematization, unification and coordination of all national legislation. From such a perspective, it is confined to the research of the correlation between the needs of the state, in this case the obligations imposed constitutionally on all public authorities, according to Article 148 of the fundamental act and the concrete realities of the phenomenon, in the projection of the organization and functioning of the Legislative Council, the author advances concrete solutions meant to ensure its institutional adequacy to the weight and dynamics of the European legislation, in a continuous change, in the context of increased institutional efficiency.
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The present study intends to reveal the complexity of the serious humanitarian problems generated by the migration of the population in today’s world, emphasizing the causes, the effects, but especially the democratic mechanisms to address this matter. We intend to reveal a series of legal mechanisms, made available to the national executive authorities in order to combat this phenomenon, but also the legal instruments and the procedural ways of solving the applications for asylum, formulated by the persons who are in a situation of separation from their countries of origin, often against their will. At the heart of this legal system for solving migration, with continental valences, there are the courts of law, which have the tutelary role in solving the legal matters related to these problems. We will present in this study a series of solutions of the judicial practice, having as finality the exemplification of the way of correlation of the legal institutions created by the national legislator and by the European Union in order to solve the aspects related to the phenomenon of migration. In this way we intend to offer both to those who are beginning the initiation into the mysteries of law and theorists and to those involved in the activity of judicial practice of solving the applications for summons, a useful and easy, also well-documented and exemplified, tool of information regarding the way of solving the contestations against the decisions of the administrative institution legally competent to solve the applications for granting the refugee status. We will reveal both the national practice and the one in the field of the Court of Justice of the European Union, these examples of judicial solutions being meant to give us a balance in approaching the legal problems of migration.
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Enforcement in kind of the obligation to do resulting from a synallagmatic promise to contract cannot be enforced in kind, a situation which determined the legislator to identify a substitute means to replace the actual enforcement and to produce the desired effects in the patrimony of the contracting parties. The present study aims to analyze the substitute remedy of the judgment replacing the contract from the perspective of the local judge, who is facing in the process of solving such requests with a series of specific procedural and substantial impediments. Aspects such as the legal nature of the obligation to enforce, the prescription of the substantive right to action, the referral to the arbitral tribunal, the legal nature of the action filed, the modality of designing the operative part of the judgment and others similar are key points of the study, and their analysis tries to determine such an understanding from the courts of law of this specific and special mechanism among the contractual remedies.
