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In the current study, the author examines the novel provisions within the new Penal Code with respect to crimes against life. Thus, one has successively analyses the laws sanctioning: murder, first degree murder, murder upon request of the victim, determining or facilitating suicidal, third degree murder, the murder of the new born by the mother. The comments were exclusively concentrated on the differences between the current regulation of these crimes, and the new regulation to be instituted by the new Penal Code. A more detailed analysis was made by the author with respect to the “Murder upon request of the victim”, which is new in the penal Romanian legislation. -
Based on Art. 1361 of Law no. 31/1990 with respect to trade companies (republished), „the shareholders must exercise their rights in good faith, while observing the legitimate rights and interests of the company and of the other shareholders”. While considering this main norm, and by also taking into account the jurisprudence, as well as the doctrine from France and the United States of America, the author reaches the conclusion that, despite the incomplete nature of the law reproduced above, the Romanian law also legally allows, at the moment, the initiation of a (patrimony) liability, either by the legal representatives of the trade company, or by the minority shareholders (associates), or by the legal representatives of the trade company, or even by the minority shareholders (associates) (but in the benefit of the trade company),against the shareholders (associates) who, through their votes (in the general assembly of the shareholders/ associates), have affected the trade company, by not observing Art. 1361 of Law no. 31/1990.
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The new Romanian Civil Code (entered into force as of 1 October 2011, in Art. 1368 (1) provides that “the lack of judgement does not exempt the author of the prejudice from the payment of a compensation to the victim as many times as the person who, according to the law, was entitled to supervise them, cannot be made liable”. Against certain opinions expressed in the doctrine, the author believes that the foundation of such a liability is exclusively the equity, not a form of civil liability.
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The issue of the assigning of the public purchase contracts, of the public works or services assignment contracts is regulated, in Romania, by the Government Emergency Ordinance no. 34/2006, which has entered into effect in June 2006, and then it was successively amended and completed, through 14 Emergency Ordinances or Laws. In the current study, the authors analyse the recent amendments and completions of the Government Emergency Ordinance no. 34/2006 through the Government Emergency Ordinance no. 76/2010 (approved, with amendments, by Law no. 278/2010) with regard to jurisdiction (to the complaints solving procedure by the National Council for Solving Complaints in the field of the Government Emergency Ordinance no. 34/2006). For this purpose, the authors analyse the main amendments in the field, making, as the case may be, positive or negative appreciations.
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In this study, the author examines the two special banking procedures (the special supervision and the special administration), which can be ordered by the National Bank of Romania with respect to the Romanian credit institutions, based on the Romanian legislation in the field (Art. 237 – Art. 24022 of the Government Emergency Ordinance no. 99/2006 on the credit institutions and the capital adequacy, successively modified and amended through four laws and three emergency ordinances between 2007–2011).
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After the entry into force of Law no. 118/2010 (3 July 2010), one has wondered if the provisions of this Law, regarding the reduction – for the staff of the budget units – of the wages by 25% is applied also in the case of the teaching and auxiliary personnel within the budgeted education units, and with respect to pecuniary rights related to the leave of absence for July – August 2010. By evoking controversial solutions in terms of jurisprudence, the author, following an exhaustive analysis of the regulations in the field, reaches the positive conclusion (therefore the reduction of said rights by 25%).
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While discussing if the “Alexandru Ioan Cuza” Police Academy students (those enrolled in the undergraduate programme, day classes) may, during their university studies, conclude individual labour contracts with other employers, the author reaches the following differentiated conclusion, namely: The students of the Police Faculty of this Academy cannot hold any public or private position, except for the teaching positions within the teaching institutions, of the scientific research and literary-artistic activities, taking into account Art. 10 (4) and Art. 45 (i) of Law no. 360/2002 (The policemen’ statute). The students of the Firemen Faculty and those of the Archive Faculty can, during the studies, conclude individual labour contracts with any employer, on condition that this does not affect the honour or dignity or deontology of the stature of public clerk of military employee.
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The correlation between parliament and democracy is a classical one. It has been proven not only by the beginnings of parliamentarism, related to limitation of the omnipotence of the monarch, but also by subsequent developments, especially in the generalization of universal suffrage, but also by the historical experience of the previous century, when the collapse of totalitarian or authoritarian regimes has always been followed by the return to parliamentarism or to a political system in which Parliament’s role is essential. After joining the European Union, its role was enhanced by its involvement in the European decision-making process by means of monitoring the compliance with the principles of subsidiarity and proportionality of the proposed EU legislation or of the implementation of directives into national law.
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Maybe some of the most controversial crimes, the rape and the sexual deviations, gave birth to numerous debates in the specialty literature, as well as in the doctrine, but also different, sometimes contradictory solutions in the legal practice. The author shows that not even the High Court of Cassation and justice succeeded to convince or end these controversies, even though that, through decision no. III/2005, tried to clarify the meaning of the material element of the rape crime. The lawmaker, through the incrimination norm of the rape and sexual aggression crimes of the new Penal Code tries to clarify and avoid, for the future, such issues. The present study highlights these possible problems and solutions.
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The author analyses certain aspects related to prostitution, underlining the fact that, although the new Penal Code no longer incriminates this deed, it is still provided under Law no. 61/1991, representing a contravention punished through fine. In the author’s opinion, the lack of incrimination and the contravention application are not enough to eliminate all the negative consequences (sexually transmitted disease, abortion, human traffic with a view to compel them to supply sexual services, etc.) of the hidden exercising of this old profession. Therefore, in the author’s opinion, this activity should become lawful.
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In this article, the authors deal with the issue of the use of the tax stamps, revenue stamps or special regime standard forms. The authors describe the legal framework, the implications of the non-compliant use of the tax stamps, revenue stamps or special regime standard forms, and identify, at the same time, certain legislation inconsistencies and doubts, and also in some incrimination texts. At the end of the article, one identifies possible remedy solutions of the findings, by also making references to certain de lege ferenda proposals.
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The execution of the warrant represents an essential element in the activity of the police bodies, which must make all efforts so as to arrest the convict. Throughout the article, the author describes the main controversies in the legal practice in relation to this area of activity, also making a critical examination of the legal provisions included in the current Penal Procedure Code, as well as in the new Penal Procedure Code.
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Ce înseamnã pentru noi unificarea dreptului privat operatã de noul Cod civil? O simplã juxtapunere a normelor civile şi comerciale într-un singur instrument legislativ? O comasare mecanicã sub o etichetã unicã? Noi ne-am ferit sã procedãm astfel şi am încercat o fuziune a dreptului civil şi a celui comercial. În primul rând, am aşezat aceleaşi principii la baza tuturor materiilor. Libertatea de a dispune, buna-credinþã, sancţionarea abuzului de drept se regãsesc în materia familiei, bunurilor, obligaţiilor. Regulile generale de la obligaţii se dezvoltã şi la contractele speciale, ipoteci etc. -
The object of a contract enjoys a long tradition in civil law. However, a good part of the legal doctrine contests its identity, noting that, as regulated, it is mistaken for the object of the obligation. On the other hand, European contract law codification projects avoid nominating it, replacing it with the contract contents. The new Civil Code does not assume these normative orientations, assuming the regulation of the Civil Code in Québec. This study is designed to examine these orientations, to evaluate the solutions of the new Civil Code and to make proposals for the improvement of the new normative provisions.
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Relating to the provisions of the new Civil Code (Law no. 287/2009 republished in „The Official Gazette of Romania”, Part I, no. 505 of July 15, 2011, which was enforced on October 1st, 2011), the author examines in this paper the testament forms, in all respects on which they act. On this occasion, the author shows, on the one hand, that the regulation in question preserves many of the texts of the Civil Code of 1864, whose accuracy and actuality have been denied over time and, on the other hand, that it also establishes some new elements, required urgently by the new social realities. Doing so, Law no. 287/2009 becomes, regarding testament forms, a modern regulation, while the forms no longer used have been removed (such as mystic testament), and new short testament forms have been regulated, with a practical use that cannot be doubted (such as the testament made in case of epidemics, disasters, wars or other such exceptional circumstances, the testament made on board an aircraft, the testament made by the person admitted to a health institution) and expanding the scope of some forms (e.g. testament of amounts and values stored).
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Promoting the conception according to which material evidence should be exclusively reserved for civil procedure as evidence is fulfilling its main role in trial, the author stresses that the new Civil Code achieves the unification of evidence regulation in civil matters, by including this regulation in art. 243-382 of the new Civil Code, a salutary solution, in accordance with the majority opinion of the doctrine. The Legislator, based on the new Civil Code, preserves part of the evidence regulations of the previous Code, but also embracing solutions adopted in the Civil codes of other states, such as, for example, the French, the Canadian province of Quebec or the Swiss Civil Code. Of course, the new Civil Code includes innovative solutions that the author deems useful and necessary, such as those relating to admitting as evidence documents stored on computer media or those regarding material means of evidence.
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As of November 1999 to May 2011 the issue of strike was legally regulated by Law no. 168/1999 on the settlement of labor disputes, and in May 2011 by Law no. 62/2011 on social dialogue (which expressly abolished the provisions of the Law no. 168/1999 on strike). In this study, the author examines the new regulation on strike, highlighting both the provisions preserved from the previous law (no. 168/1999) and the new elements brought by Law no. 62/2011, highlighting, as the case may be, the positive or the negative aspects of Law. 62/2011.
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In this study, the author makes an analysis – partly critical – of the provisions of Law no. 50/2011 on the performance of certain seasonal activities by day-workers, focusing on the correlation of this law with the European regulation in the field (Directive 1999/70/EC), noting that a series of provisions of Law no. 52/2011 should not be interpreted literally, but according to a „consistent interpretation” in order to avoid a series of contradictions and inconsistencies between the said directive and Law. 52/2011.
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The article analyzes the waiver of penalty as a new institution in criminal matters, the utility, the legal enforcement mechanisms, and its legal effects in the field of criminal repression.
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In this study, the author stresses the need to take into account the gravity of the crime committed for punishment individualization, as the gravity of the crime and the punishment are connected by an inseparable nexum, both in the abstract formulation of criminal norm – not being able to imagine the description of a deed in a norm without punishment or vice versa – and in social consciousness, always linking the punishment to the gravity to the crime, in a relationship of cause and effect. However, the author reveals and performs an extensive research of the elements actually serving in the assessment of the gravity of the crime. Thus, in order to know the gravity of the crime committed, one must assess the specific nature and particularities of the specific legal object, the character and importance of the physical or intangible object injured or endangered by committing the crime, the way the action or inaction which constitutes the material element of the offense was performed, the nature and gravity of its consequences, the way the causality report was described, the shape and degree of culpability, the motive and purpose and the circumstances of the crime.
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This study is designed to examine, in the detail, the issue of the administrator liability for the fraud committed against the company. The author have been trying to propose solutions for a series of problems regarding the definition of the expression „fraud against the company”; the discrimination between the fraud and the power abuse, as well as the relation between the sanctions for the exclusion and revoking of the associate administrator, namely when his exclusion applies and when his revoking applies.
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Law no. 119/2010 settled that all service pensions (except those of magistrates and judges of the Constitutional Court) become common pensions (therefore established under the common law of pensions, i.e. Law no. 19/2000). In order to enforce Law no. 119/2010, Government Decision no. 735/2010 was issued. Among service pensions (now common pensions) are also the pensions awarded to retired persons coming from the system of defense, public order and national security. From July 2010 to January 2011, these service pensions were recalculated as common pensions under Law no. 119/2010 and Government Decision no. 735/ 2010. Subsequently, under Government Emergency Ordinance no. 1 / 2011, from February to December 2011, based on other criteria, said pensions were recalculated again (under Government Emergency Ordinance no. 1 / 2011). Being that, by law, each of these recalculations can be challenged in court, the author of this study examines the jurisdiction to settle the appeal of the decisions to recalculate the pensions in question, both those set initially according to Law no. 119/2010 and Government Decision no. 735/2010, and those recalculated again subsequently according to Government Emergency Ordinance no. 1 / 2011.
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The issue of territorial planning and urbanism became especially important after the entry of Romanian in the European Union, due to the complexity and multitude of problems imposed by the dynamics and evolution of society. The ambience of constitutional provisions, conventional and community rules, the issue of the administrative court institution regarding urbanism and territorial planning and, notably regarding cancellation of building permits, acquires great importance and is intended to guarantee the fundamental rights and freedom of citizens in this complex field, less explored in literature. Based on these challenges, this study analyzes several issues that rise interest in attacking building permits in administrative court.
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The issue of fighting corruption has been and still is a constant concern of the Romanian and foreign legal doctrine, as „corruption” takes various forms of manifestation punishable by criminal law as separate crimes. From this perspective, the author considers it useful to see the evolution of criminal law on fighting corruption in our country, by comparing the crime of corruption in the current criminal law with those regulated in the new Criminal Code. The article also emphasizes on the crime of buying influence, as a specific means of corruption crimes.
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For the correct qualification of an act of a servant who, in the exercise of his office duties, knowingly does not act or fails to act correctly, by misleading a person, presenting as true a false or misleading act or as false a true act, it is necessary to draw the line between fraud offence, involving a misleading activity, and the offense of abuse of office against private interests as malfeasance while in office, regarding which the question is whether it can be committed through acts of deceit and in case this possibility exists, if it will be considered abuse of office against private interests, or there are cases, although this special quality exists, it will be considered fraud offence.
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In the article, the author claims that the settlement of the proposal for remand in custody in open session, although the law provides for the settlement in closed session, as well as a decision, even if it was made by the Registrar, in violation of the law, and did not cause essential harm, such as to justify annulment of the act, while the delivery order was made, that public notice of the solution given by the judge, are subject to relative nullity. Also, it was assessed that, during the settlement proposal for remand in custody is not necessary for the court to rule on the defense request to undertake, before the defendant, the obligation not to leave the city or country, the obligation of examining taking less intrusive preventive measures, being included in the analysis of the necessity of the remand in custody.
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Potrivit art. 1491 C.pr.pen., procurorul, când considerã cã arestarea inculpatului este în interesul urmãririi penale, întocmeşte propunerea motivatã de luare a mãsurii arestãrii preventive a acestuia numai dupã ascultarea inculpatului în prezenţa apãrãtorului. În plus, conform art. 150 alin. 1 C.pr.pen., mãsura arestãrii inculpatului poate fi luatã numai dupã ascultarea acestuia de cãtre procuror şi de cãtre judecãtor, afarã de cazul când inculpatul se aflã în strãinãtate ori se sustrage de la urmãrire sau de la judecatã ori se aflã în una dintre situaţiile prevãzute în art. 1491 alin. 6 C.pr.pen. (cu notã criticã).
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The group of economic interest is created as a partnership between two or more physical or juridical persons and its aim is to facilitate or to develop the economic activity of its members or to improve the results of their activity, on a determinated period. The group of economic interest was first created in French Law and it was created as an intermediar structure between a trading company and an association. The organisation and the function of a group of economic interest is increased on his members’ will. The idea of creating a group of economic interest was determined/born out of the necessity to provide a judicial instrument what attenuates the formalism of a trading company, but also removes the disadvantages of an associatioan regarded to the lock of juridical personality. The trading companies implied in such a group maintain their administrative and functional authonomy and their own identity as a juridical person. The European Group of Economic Interest is a legal person which aims, exclusively, the cross-border economic cooperation between European Union member states. The European Group of Economic Interest is, generally, a legal person (except for some member states like Italy, Austria or Germany). The acknowledgement of this statute helps realizing the group’objectives (the development of the member’s activities). In all states, a group has the capacity, in his own name, to have the any kind of rights and obligations. A group can conclude a contract or any other legal act, can take part in lawsuite, accordingly to European Law. The areas that are not mentioned by the stipulations of the european Council’s Regulation are regulated by the competition and intellectual property national law. The European Group of Economic Interest, at least theoretically, proves to be a flexible legal instrument, first of all, because it adapts to the different needs of its members. First of all a European Group of Economic Interest offers for its members the possibility to unite their forces and resources in order to obtain better economic results together. Its advantage stands in the flexibile organisation and function and in the fact that it does not necessary require a registered capital. -
In the judicial practice, there are divergent opinions regarding the settlement of cases in which the reports drawn up by the Labor Inspection are contested, invoking the inexistence of work accidents. Some courts have considered that the litigation should be tried by the administrative sections in the courts of law, others have decided that trial courts have the competence required to solve the case in the first instance and a third opinion is that of dealing with the case separately and of solving the aspects regarding the administrative sanctions and, respectively, the nature of the accident by different courts. The author considers that the complaints against this type of reports fall under the jurisdiction of trial courts and not under the jurisdiction of administrative courts. -
In this study, the author, opposing the opinions expressed in a recently published study, reaches the conclusion that, after the Police Officer Status enters into force (Law no. 360/2002), the recovery of expenses from police officers (trained by the Police Academy) failing to comply, for reasons imputable to them, with the obligations included in the commitments undertaken according to art. 9 of the Government Decision no. 137/1991 or art. 17 of the Government Decision no. 294/2007, shall be made according to art. 84–85 of the Civil Servants Status (Law no. 188/1999, as republished) and never according to common law (the civil code/law), by way of an action filed to the common law court.
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In this study, the author examines the possibility of including in Romania, in the private law contracts (civil or commercial), some hardship clauses, (the hard ship clause in the Anglo-Saxon law and in the foreign trade law), even if there is no explicit regulation in this respect in current Romanian positive law (there is an explicit regulation only in the new Romanian civil code – art. 1271 – , but this Code has not become effective yet and, at present, nobody knows when it will become effective). Further on, after defining the notion of “hardship clause”, the author, also taking into consideration the Romanian legal doctrine in the matter, examines the field of application, as well as the conditions of the hardship clause. Key words: Hardship clause in private law contracts; field of application and conditions in the current Romanian law.
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Criminal law, as a set of mandatory rules of conduct, compliance with which is imposed by the coercive power of the state, applies to all the people on the territory of a given country and for a certain limited period of time. Therefore, the putting into effect of criminal law means the fulfillment or non-fulfillment of the duties it provides for, in relation to two essential elements: “territory” and “time”. The application of criminal law on the territory means the actual fulfillment of instructions carrying sanctions in relation to the territory in which a crime was committed, in the country or abroad. The Romanian criminal law is aimed at and applies to the people in the territory of Romania and who must comply with its provisions. The new criminal code has brought numerous and substantial changes to the principles behind the application of the Romanian criminal law in the territory and which we will examine hereinafter.
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The new Criminal Code, which brings numerous innovations to the scope of accusation under the Romanian criminal law, stipulates, in the text of art. 239, the sanctioning of a debtor’s action of alienating, hiding, deteriorating or destroying, in whole or in part, values or goods in its assets or of invoking false acts or debts for the purpose of defrauding creditors or the action of a person who, knowing that it will not be able to pay, purchases goods or services thus causing damage to the creditor.
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In this study, the authors examine 12 texts in which the new Romanian Civil Code (published on 24 July 2009, but not yet effective) explicitly provides for using the procedure of presidential ordinance in 12 clearly stated situations
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The above study examines the issue of the articles of association and the nullity of the legal entity in the new Romanian Civil Code (adopted by the Parliament, published in the “Official Journal of Romania”, but not yet effective). In dealing with the above-mentioned issue, the author examines the nullity of a company’s articles of association (in Law no. 31/1990 on companies and in the new Civil Code), the effects of a company’s nullity, the legal entity’s nullity – in the current law and in the new Civil Code –, the effects of the legal entity’s nullity, as well as the European source of the legal entity regulation in the new Civil Code (Directive 2009/101/EC, a directive abrogating and replacing the Directive 68/151/EEC).
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On 10 December 2009, the Parliament of Romania passed the Law no. 381/ 2009 regarding the introduction of the preventive concordat and the ad-hoc mandate. This paper examines the main features of these preventive instruments, designed to be used by the debtor in order to avoid the opening of the insolvency procedure, while restructuring its undertaking and its debts, as to provide satisfaction to the creditors. The author analyzes the categories of debtors that are eligible for such procedures, the role played by the judicial bodies, the proxy and the conciliator and the mechanism of implementation and the effects of the preventive concordat and the ad-hoc mandate. The final part is critically addressing the chances of these preventive instruments to satisfy the interests of both the debtor and the creditors.
