-
The current Civil Procedure Code clarifies some doctrinal controversies and controversies of the arbitral case law and transposes on legislative level some solutions of the arbitral practice, meant to make the arbitral jurisdiction more efficient. Among these aspects of making it more efficient, the study mentions those related to the extension of the competence of arbitration and the autonomy of will of the parties in organizing and conducting the arbitral procedure, likely to increase the access to this private jurisdiction, as an alternative to the state jurisdiction. Another dimension of the current regulation is related to the ways of materializing the arbitral convention and of the presumption of arbitrariness of the disputes regarding all misunderstandings arising from the contract or from the legal relations to which the agreement refers. The current regulation is concerned with the quality of the jurisdictional act which it connects to the qualification of the members of the arbitration tribunal, to their impartiality, by extending the causes of incompatibility as compared to those of judges and by guaranteeing the right to defence, by representing or assisting the parties by a lawyer. The autonomy of will, which impregnates the arbitral procedure, is associated with the principles of the civil trial, extended by the current regulation to the arbitral procedure, in order to increase the procedural guarantees offered by this private jurisdiction. An innovative solution is related to the participation of third parties in the arbitral procedure, under the terms of maintaining the composition of the arbitral tribunal, in order to ensure the complete and global settlement of the dispute. Another novelty of the current regulation is related to the material competence of the courts of appeal in resolving the action for annulment and the solutions that can be pronounced in case of admitting the action for annulment. Last but not least, the regulation makes the distinction between the procedure of the institutionalized and ad-hoc arbitration, in the context of the autonomy of will of the parties. -
The study examines the possibility of bringing into a limited liability company as a social contribution a good subject to a conventional right of pre-emption. The right of pre-emption is linked – by its nature, as well as by the regulation of the Civil Code – to the contract of sale and gives a preference – at an equal price – to a certain buyer, designated by law or by contract. Failure to comply with the pre-emption cancels the contract made with the third party and the pre-emptor becomes the acquirer if he makes the price available to the seller. The bona fide third party is guaranteed for eviction by the seller. The contribution in a limited liability company does not make a sale although it produces a transfer of ownership from the contributing partner to the company, because the partner does not receive a price but a participation in the company where the contribution is made. Therefore, the contribution of a good affected by a right of pre-emption cannot be refused to the receiving company by the Trade Register Office, on the ground that against it (the company) – acquiring third party – a preference for acquisition can be invoked by the conventional pre-emptor; this, even when the right of pre-emption is accepted against an offer of alienation.
-
În cazul în care asigurătorul nu-și îndeplinește obligația de a preciza motivele refuzului de despăgubire, atunci datorează penalități de întârziere de la data expirării termenului de 30 de zile, care începe să curgă de la data solicitării de acordare a despăgubirilor formulate de persoana prejudiciată. (Curtea de Apel Pitești, Secția a II-a civ., Decizia nr. 498 din 17 mai 2021)
-
Din prevederile art. 34 alin. (1) din Legea nr. 165/2013, rezultă că în vederea soluționării dosarelor de despăgubire, legiuitorul a stabilit un termen de 60 de luni de la data intrării în vigoare a legii. Rezultă că formularea unei cereri înaintea expirării acestui termen este prematură. Această concluzie este întărită de dispozițiile art. 35 alin. (2), potrivit cărora în cazul în care entitatea învestită de lege nu soluționează decizia în termenele prevăzute la art. 33 și 34, persoana care se consideră îndreptățită se poate adresa instanței de judecată.” (Curtea de Apel Cluj, Secția I civilă, Decizia nr. 2776 din 10.12.2015)
-
The object of the paper are the standards which, according to the European Court of Human Rights, must be met by the procedure of hearing witnesses so that the defendant be given an adequate and proper opportunity to question them and the requirements of the fair trial be satisfied. Those standards include a relative right of the accused to confront the prosecution witnesses, the right to legal assistance and the principle of immediacy of witness examination. The latter principle has certain implications regarding the requirement that witnesses should give evidence at trial and that the hearing of witnesses should be repeated in the appeal proceedings and in other situations in which new judges are appointed during trial. It is applicable, pace the Constitutional Court, in the procedure concerning the confirmation of the prosecutor’s decision to discontinue the proceedings. All along the study we follow the way in which the European Court of Human Rights uses the method of combination of criteria to evaluate the interferences with the rights of the accused.
-
The article presents the considerations of the Decision No 250/2019 of the Constitutional Court of Romania and the practice of the European Court of Human Rights regarding the change of the legal framework during the trial, concluding that it is ordered by a conclusion prior to the settlement on the merits. Likewise, there are presented arguments that justify the mandatory preparation of the minute in case of change of legal framework, the motivation of the conclusion and its communication. There are examined, from the perspective of the change of the legal framework, the amendments and supplements to the Criminal Procedure Code ordered by the Law No 130/2021, which bring specifications in agreement to the case law of the Constitutional Court of Romania and of the European Court of Human Rights.
-
In this article we have looked into the content of the concept of case law of the European Court of Human Rights, determining in the national criminal process the legal nature and the presentation of the reasons for its application. We have also addressed the premises of using case law as a source of law within the criminal trial, highlighting the particularities and advantages of the applicability of the case law of the E.C.H.R. within criminal trial. Through the research carried out, it has been conducted a complex investigation of the theoretical-legislative aspects regarding the applicability of the case law of the E.C.H.R. within the criminal trial as a source of law. The paper formulates conclusions and recommendations that can represent a scientific basis for possible legislative amendments. In the present study, we reiterated the most current theoretical-applicative issues, as well as the methodological aspects regarding the applicability of the case law of the E.C.H.R. in the criminal trial, being revealed some concepts of major importance for the national doctrine and practice.
-
This article reviews the regulatory framework on investigations into marine navigation in Romania, indicating the timeline of the criminalization patterns followed by the presentation of the common aspects of the structure and constitutive content of the investigations by analyzing in three specific chapters provided in the normative basis of the Law No 191/2003 on the legal regime that applies to maritime transports and studies of the distinctive elements of each investigation, and finally by drawing critical conclusions and implications related to lex ferenda.
-
There are situations in which the judicial bodies need the opinion of an expert to ascertain, clarify or evaluate certain facts or circumstances that are important for finding out the truth. Forensic expertises have a special regime in relation to other types of expertises, which can be performed only in sanitary institutions of forensic medicine, subordinated to the Ministry of Health. The supreme scientific authority in the field of forensic medicine is the Superior Forensic Commission, which operates under the Institute of Forensic Medicine „Mina Minovici” Bucharest. This article aims to clarify the probative value, in a criminal trial, of the advisory opinions issued by this supreme authority, because there have been and are situations, in the judicial practice, in which there has been given superior probative value to this advisory opinion, as well as situations in which its conclusions were removed with reasons.
-
The problems of the land fund became of maximum importance after 1990. Romania, in relation to the new realities regarding the property, had to urgently adopt the Law No 18/1991. After more than 30 years of application, the Law on the land fund still gives rise to discussions on the topic of sharing the competence of the courts in matters of administrative acts issued in its application. The general framework in the matter of restitutions was completed by the appearance of the Law No 10/2001. Subsequently, the entry into force of the Law No 554/2004 has definitively established the legal regime of administrative acts in general. Therefore, we are at the confluence of several framework-laws in the field regarding the regime of administrative disputes, in general, and of the matter of the land fund, in particular. This study seeks to provide precisely an approach as analytical as possible of the manner the courts of law settle this issue.
-
Adopted in the 1922–1926 legislature, the Constitution of 1923 was indispensable for the project of legislative unification of Romania. Its norms impose unique fundamental principles and rules for the entire national legal system: the principle of national sovereignty; the principle of legality and supremacy of the Constitution; the interests of the social community may take precedence over individual interests in the matter of property right. The regulation of some unique institutions for the entire Romanian State ensures the unitary exercise of constitutional competences, and the regulated rights for all Romanians ensure a unique foundation of freedom and equality. Other provisions have a strong unifying role and each provide a point of constitutional support for future legislation. The supremacy of the constitutional norms in the system of legal norms, supported by the case law of the unique supreme court, but also the beneficial psychological effect determined by the constitutional unification complete the picture of the impact of the constitutional norms from 1923.
-
The study analyzes the provisions of the Law No 114/2021 on some measures in the field of justice in the context of the COVID-19 pandemic in civil cases. The mentioned normative act provides the conditions for conducting the court hearings in the civil trial by videoconference. The conditions are the following: to be decreed the state of alert instituted in order to prevent and combat the effects of the COVID-19 pandemic also for a period of 30 days from its cessation; to be about a civil case; to have the agreement of the parties in this respect; to have the possibility; the approval of the court of law. The Constitutional Court, by the Decisions No 157/2020 and No 457/2020, has established that the justice cannot stand still, not even during the COVID-19 pandemic, under this requirement the legislator regulating by the Law No 114/2021 the manner of conducting judicial proceedings during this period. However, the legislator did not rise up to the standards imposed by the Constitutional Court of Romania, in the sense that it did not regulate an effective way of access to justice, in the situation where the objective pandemic conditions restrict this possibility. Although we appreciate positively the provisions of the Law No 114/2021 referring to the development of the civil process by electronic means, we consider that the measures ordered should be generalized and not applied, as provided by Article 1 (2), only for reasons generated by the COVID-19 pandemic.
