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In this study the author examines the legal institution of the politics-related conviction from various points of view: legal nature, regulatory manner, effects, similarities and differences to the causes removing criminal liability or consequences of conviction. -
The need to analyze the condition of guilt in engaging the legal liability of the physician does not result only from the ECHR Judgment in Ioniță Case, which ruled that the physician’s liability itself is based on the notion of medical negligence, but especially because of its specific aspects. According to recent practice, the intensity of medical guilt in the degree of culpa levissima is able to lead to de facto exoneration from criminal liability (through a symbolic sanction) in order to focus on repairing the victim’s prejudice. The consequence of changing the vision on the medical legal liability from a punitive-criminal liability of the physician to a reparative liability facilitates the perception of the French conception of the contractual liability of the health unit. This does not remove the personal liability of the employed physician, but limits it to a psychic attitude of elusion of the system of cooperation and control of the health unit, which brings it closer to the indirect intention. Hence the need to distinguish between indirect intention and guilt with forethought (recklessness), which in its turn is different from guilt without forethought (negligence). -
The paper analyzes the conditions for exercising the revision in the criminal trial, respectively the judgments subject to revision, the category of persons who can exercise it, the time limits of declaration, the form in which the application and its content must be made. The study relates to the case law of the national courts before and after the entry into force of the new Criminal Procedure Code, as well as to the relevant provisions of other European legislations. At the same time, there are considered the provisions of the Draft Law for amending and completing the Criminal Procedure Code adopted in the summer of 2018, respectively PL-x No 373/2018.
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The provisions of art.1538 para. (1) of the new Civil Code define the criminal clause as being that according to which the parties set forth that the debtor undertakes to pay a certain allowance in case of the non-performance of the main obligation, and para. (4) of the same article sets forth: “the creditor may request the performance of the criminal clause without the obligation to prove any prejudice.” In order to grant the criminal clause, it is necessary to meet the following conditions: the existence of a criminal clause validly established, the non-performance, the inadequate performance or the delay performance of the contractual obligation, the debtor’s fault and his putting in default or being in default de jure. At the same time, the penalty cannot be requested if the performance of the obligation has become impossible for grounds which are not imputable to the debtor, such as the force majeure, the act of God, the deed of the victim or of a third party. -
In this study, the author examines the problems of granting in Romania the subsidiary protection for the asylum seekers in case of generalized violence in situations of armed conflict, stating that, according to the internal and international legal terminology, the subsidiary protection is a form of international protection from which the asylum seekers can benefit. In this respect there are presented: the legal framework – international, European and internal – in the matter, as well as the conditions of granting the protection in question for the asylum seekers in case of generalized violence in situations of armed conflict. -
Among the means of protection of a creditor’s rights, the present Civil Code regulates the (Paulian) revocatory action within Articles 1562–1565. This civil action has been regulated also in the previous Romanian Civil Code. However, in this study the author examines exhaustively the admissibility conditions of the revocatory action in the light of the present Romanian Civil Code, which entered into force on 1 October 2011. -
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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The recordings made by technical means have not constituted, at least in civil matters, ever since the appearance of the devices that made them possible, an admissible evidence, not being regulated as such by the legislator in the past. In the new regulations, starting with the Law No 217/2003, including in the new Civil Procedure Code, in the conditions of the extended use of electronic means, both in the institutional framework and in the private life, the daily realities have imposed the use of the recordings with technical means as evidence. However, by operating a generalization, the possibility that the data of any kind to be fixed on a computer-based media has led to the penetration of this kind of probation both in the evidence with written documents, in the form of computer-based written documents, and in that of material means of evidence. The inclusion of the recordings, generically speaking, also in the category of material means of evidence generates problems both in terms of identifying their legal nature, with implications on their administration and storage regime, and in terms of establishing their admissibility conditions. The latter also raise the question of establishing the extent of the probationary area related thereto, respectively whether it should be restricted only to proving those legal relations which the facts of legal relevance involve, as well as which categories among these fall within the scope of circumstances likely to be proved in this way.
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Following the entry in force of the Civil Code (Law No.287/2009, republished) on the 1st of October 2011, which repealed the Family Code, and the accordingly amendment of the republished Law No. 119/1996 regarding the civil status acts, the author conducts an extensive analysis of the legal provisions related to the conditions of form which must be complied with for celebrating a valid marriage. This study examines the formalities provided by articles 278-292 of the Civil Code. -
The documents under private signature are an important category of preconstituted documents, characterized by the lack of formalism and the freedom of the parties to elaborate them. The form of the document under private signature is sometimes imposed by the law for the validity of the legal operation, and sometimes it is established ad probationem. In the cases where the written form is imposed ad validitatem, the legal document will not produce its effects envisaged by the parties upon its conclusion, unless it has been ascertained in writing. On the other hand, the non-compliance with the form of ad probationem generally brings about the impossibility of proving the legal act with another means of evidence. The written form may be an authentic document or a document under private signature. Also, the electronic document fulfils the condition of form ad validitatem or, as the case may be, ad probationem, if it was generated according to the provisions of the Law No 455/2001 on electronic signature. In principle, the only requirement for the validity of a document under private signature is the signature of the parties or, in some cases, only the signature of one of them. The signature expresses the will of the parties or, as the case may be, of the party to assume the contents of the document they have signed/he has signed. In the cases expressly provided, the legislator also imposes the fulfilment of some special conditions for the validity of the document under private signature. Thus, in the case of documents under private signature which establish the existence of sinalagmatic conventions, „plurality of copies” is required, and in the case of documents under private signature which establisg unilateral obligations (which have as object the payment of a sum of money or a quantity of fungible goods) it is required the formality or mention „good and approved for...”. The content of the document under private signature can be reproduced on any material support (paper, cloth, wood, metal, glass, CD, stick, etc.), in any form (handwritten, typed, printed, lithographed, electronic), in Romanian or in any other language or in a conventional language of the parties. Instead, the signature must be written by hand by the party or parties, not being allowed the typing, lithography or printing, or the replacement by a seal or by fingerprint. By way of exception to this rule, the legislator recognizes the validity of the electronic signature reproduced under the terms of the Law No 455/2001.
