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The author carries out a thorough analysis of all the regulations under art. 1381-1395 of the new Civil Code regarding the recovery of damages caused by extra-contractual causes. Thus, in the first part of the study, the author approaches joint liability, in case two or more persons are liable for one and the same damage. Also, a large part of the work deals with the principles governing the right and correlative obligation to recover the damages: the principle of full recovery and the principle of recovery in kind of the damages; both principles are explicitly provided in the texts of art. 1385 and 1386 of the new Civil Code. The central part of the work deals with a review of the recovery of damages by means of a money equivalent, referring in particular to the establishment of compensation for the full repair of personal injuries, both in their material and in their moral form; in the same context, large discussions are presented in relation to the pecuniary recovery of indirect damages. Another special place in the work is held by the presentation of the regulation regarding the correlation between the social security rights of the immediate or the indirect victim and the compensation that may be granted to such victim for recovery of the damages caused. The study ends with a review of the extinctive prescription of the right to claim and obtain in court the recovery of damages under tort liability. -
Obligaþia celui care a edificat o construcþie pe terenul altuia de a o ridica la solicitarea proprietarului terenului are caracter civil, în condiþiile în care pãrþile nu au dovedit cã respectiva obligaþie ar avea în vedere un fapt obiectiv de comerþ cuprins în obiectul de activitate al vreuneia dintre ele pentru a fi incidente dispoziþiile art. 3 sau cele ale art. 56 C.com. ºi nici cã prin voinþa lor obligaþia de a face în discuþie ar fi dobândit o naturã comercialã, aºa cum prevede art. 4 C.com. (Înalta Curte de Casaþie ºi Justiþie, Secþia comercialã, decizia nr. 1448 din 14 mai 2009).
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The European arrest warrant is an extremely relevant subject these days, being one of the concerns of the European lawmaker, the EU Member States and the national authorities (Ministry of Justice, courts of law, prosecutor’s offices, police structures) involved in this field. In this article, the author presents the main particularities of the European arrest warrant enforcement in the EU Member States, emphasizing both its positive aspects and the difficulties met by the Member States in transposing the provisions of the Framework Decision no.2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.
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The Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law, whose transposition into the domestic law must be carried out by 26 December 2010, obliges the EU Member States to provide in their national legislation for effective, proportional and dissuasive criminal penalties in respect of serious infringement of provisions of Community law on the protection of the environment. For the Romanian law, its application involves a substantial reform of the notion and regulations regarding offences related to the protection of the environment, for the purpose of properly incriminating the series of actions seriously affecting the environment, in a coherent vision, which would reflect the particularities of the field and, in particular, would ensure effective and discouraging penalties, able to contribute to achieving the objective set.
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By comparison, the author examines the role of national parliaments in the treaties establishing the European Communities, the European Union (subsequent to the Treaty of Amsterdam), and then, much more in detail, the role of national parliaments in the Treaty of Lisbon (effective since 1 December 2009). At the end, the author examines the (indirect) influence of the Treaty of Lisbon on the legislative deliberative process in the Parliament of Romania.
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The article presents some considerations on the special procedural provisions regarding computer search set forth by Law no. 161/2003 on ensuring transparency in carrying out public dignities, public functions and in the business environment, the prevention and sanctioning of corruption. The author examines the nature of the legal institution of computer search and expresses his opinion regarding the need for a distinct regulation of computer search, in relation to the provisions of the Code of Criminal Procedure in the matter of checking and seizing objects and documents, search and technical-scientific finding.
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The article intends to assess the quite difficult but, especially, dramatic issue of the criminal liability of minors and of preventing and fighting juvenile delinquency, starting from the incontestable reality of the phenomenon of offences among young people. It examines the conditions for the criminal liability of minors by means of a comparative analysis of the current regulation and the regulation proposed by the new Criminal Code, emphasizing the evolution recorded in their punishment, from the perspective of the entirely special situation of minors, caused by their psycho-physical characteristics. In this study, a special emphasis is laid on the consequences of the lawmaker’s eliminating the enforcement of penalties to minors on their real reeducation and social reinsertion.
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This study examines – critically – the Romanian legal regulations regarding the termination of the term of office for a “local elected official”, which refers to: local advisors, county advisors, presidents and vice-presidents of county councils, the general mayor of the city of Bucharest, deputy mayors and the village delegate, who is also assimilated to local elected officials. Difficulties arise from the fact that the termination – upon expiry or prior to expiry – of the term of office for “local elected officials” in Romania is regulated, at present, directly or indirectly, by four laws, namely: Law no. 393/2004 on the status of local elected officials; Law no. 215/2001 (republished on 20 February 2007) on the local public administration; Law no. 161/2003 on ensuring transparency in carrying out public dignities, public functions and in the business environment, the prevention and sanctioning of corruption and in Law no. 144/ 2007 on the setting up, organizing and functioning of the National Integrity Agency. In order to avoid any difficulties generated by such a legislative system, the unification of regulations in this field is proposed (as well as some amendments to the laws) exclusively in the content of Law no. 393/2009 on the status of local elected officials.
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Examining the issue of the parents’ right to agree to their child’s journey in the country (in Romania) or abroad, after reviewing the legal regulations in this matter, the author reaches the conclusion that art. 18, paragraph 2 of Law no. 272/2004 (“Any journey made by children in the country and abroad shall be made subject to notification and consent of both parents; any disagreements between the parents in relation to expressing such consent shall be solved by the court of law”) provides for situations in which the parents exercise their parental rights together, while art. 30, paragraph 1, letter c of Law no. 248/2005 refers to the situation in which parental protection is divided pursuant to a court order (following divorce etc.). At the end, the author proves that the provisions of the new Romanian Civil Code (adopted y the Parliament and published in the Official Journal of Romania, but not yet effective) do not influence the above-mentioned legal regulations.
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In the above study, the author makes an analysis of the majority shareholder’s right to exclude the other shareholders from the companies traded on a regulated capital market (a right that is generally known under the English name squeeze aut) both in the light of the European Union Directive 2009/25/EC of 21 April 2009, and according to the (Romanian) law no. 297/2009 on the capital market, reaching the conclusion that the exercise of this right serves the interests of minority shareholders as well. -
In the above study, the author often criticizes the constant case law of the Constitutional Court of Romania, namely the fact that, on the one hand, the resolution by this Court of an exception of non-constitutionality a posteriori (therefore, after the law or the Government ordinance was adopted and published) is no longer legally possible if, as at the date of the Constitutional Court decision, the law/Government ordinance is no longer in force, being expressly abrogated. Moreover, the Constitutional Court also stated that, in the given situation, the examination of the non-constitutionality of the law shall be made by the courts, no matter their type (therefore, not by the Constitutional Court as well). Proving with arguments that the solution passed by the Constitutional Court is legally wrong, the author also emphasizes the serious consequences of the Constitutional law case law (the perpetuation ad infinitum in the future of the effects of a law, Government ordinance, hypothetically unconstitutional).
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In the above study, the author criticizes severely a judgment of the Romanian High Court of Cassation and Justice (the Administrative and Tax Litigations Section), passed on 26 October 2009, explicitly and unequivocally stating that the mentioned court was entitled not to enforce a provision contained in a law in force (namely, art. III of Law no. 262/2009), explaining that the given provision was unconstitutional since it “infringes the right to a fair trial”, although the Constitutional Court of Romania, quite the opposite, had stated the contrary, finding the constitutionality of that legal provision. The author’s criticism focuses on the idea that, according to the Constitution of Romania, only the Constitutional Court is legally competent to give a ruling on the constitutionality/non-constitutionality of a law or a Government ordinance in force (or of any provision included therein), and that the courts (including the High Court of Cassation and Justice) have no such legal jurisdiction in the matter.
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According to the new criminal regulation, the offence of misleading the judicial bodies preserves some elements of the offence of false accusation, which is currently not provided anymore, but both the constitutive content and the sanctioning system show serious changes.
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The article intends to examine the changes that the new Criminal Code brings to the matter of the enforcement of criminal law over time, mainly for the purpose of harmonizing the given provisions with the constitutional principles, as well as for facilitating their implementation. From this perspective, one can notice that the new Criminal Code has largely taken over the provisions currently in force, but has eliminated those contrary to the constitutional principles, such as, for instance, the provisions stipulating that the complementary punishments, the educational measures and the safety measures in the new criminal law are always retroactive for public interest reasons or the provisions regarding the facultative enforcement of the most favorable criminal law in the irrevocably judged cases. We also find the introduction among the provisions subject to the principle of the most favorable criminal law of the legislative instruments declared unconstitutional, as well as of the emergency ordinances approved by the Parliament with amendments, supplements or rejected, provided that they were in force during the period stipulated by the law text.
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In the above study, the authors make a comparison between the provisions of the new Romanian Civil Code (published on 24 July 2009, but not yet in force) and the provisions of the current code (of 1865), regarding the rights of succession of the relatives of the deceased. After a thorough analysis, they reach the conclusion that the new Code provides a quasi-complete adequate regulation in this matter, taking over the judicious principles established by the current Civil Code, updating the specialized legal language, eliminating what is redundant, de lege lato, and bringing the necessary additions.
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Esenţa principiului error communis facit ius, invocat de subdobânditorul cu titlu oneros pentru a obţine pãstrarea valabilitãţii titlului sãu, constã în faptul cã terţul dobânditor este învestit cu un drept de proprietate pe care însã nu-l primeşte nici de la adevãratul proprietar – cu care nu a contractat, nici de la proprietarul aparent – cu care a contractat, dar care nu deţinea dreptul –, ci direct de la lege. Aşadar, este un mod originar de dobândire a proprietãţii, iar nu unul derivat. Pentru ca o aparenţã sã fie creatoare de drept, se cer a fi întrunite mai multe condiţii, cumulativ: sã existe o eroare comunã şi invincibilã; subdobânditorul sã fie de bunã-credinţã; actul încheiat între proprietarul aparent şi terţul subdobânditor sã fie cu titlu oneros.
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Art. 2 paragr. 1 din Convenþia (europeanã) pentru apãrarea drepturilor omului ºi a libertãþilor fundamentale (în continuare denumitã Convenþia) consacrã dreptul la viaþã al fiecãrei persoane ºi protecþia de care aceasta trebuie sã se bucure conform legii, în politica penalã a statelor membre ale Consiliului Europei. Aºadar, în privinþa dreptului la viaþã statul are nu numai o obligaþie substanþialã negativã, ci ºi o obligaþie substanþialã pozitivã; aºa cum rezultã din jurisprudenþa Curþii Europene a Drepturilor Omului (în continuare denumitã C.E.D.O.), statele nu trebuie doar sã se abþinã de a provoca moartea în mod ilegal ºi intenþionat, dar trebuie sã ia ºi mãsurile necesare pentru protecþia vieþii persoanelor aflate sub jurisdicþia lor1.
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In this study, the authors intend to examine the institution of international liability, dealing with the issue of the constitutive elements of international liability. In the general international law, liability is a relationship created exclusively between two or several international law subjects. The international liability of a state can only be raised by another international law subject whose international right was infringed. If a state suffers a direct damage (immediate), it can approach the liable state directly in order to obtain the repair. On the contrary, the damage suffered by an individual following the infringement of the international right shall not provide the victim with the right to obtain recovery of damages before the international courts. A state shall only be liable internationally if it is the author of an international tort. There is a tort of the state when: a) a behavior consisting of an action or omission can be assigned (attributed), in compliance with the international law, to the state; b) this behavior represents an infringement of an international obligation of the state. The international doctrine generally acknowledges that the occurrence of these two elements generates the international liability of the state.
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The offence of abuse of social goods is one of the most frequent offences regarding companies. The incrimination of this action has the purpose of protecting the company against their managers’ temptation to consider it their own property and/or abuse of its goods or credit against the company’s interest. The offence that the authors examine can have as material object the goods, the credit and the authority. The offence may also refer to the company’s credibility, namely “the company’s commercial reputation, born out of the good operation of the company, its capital, its volume and the nature of its business”. Using the credit in a negative interest means exposing the company to a risk it should not be exposed to, even if the risk is not achieved.
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Special procedures are rules derogatory from the common rules governing the criminal trial. They are also of a supplemental type and strict enforcement when a certain procedural aspect is regulated differently than the common rules. However, their purpose is the same, namely the resolution of the criminal and civil action, when required. Among these procedures, the agreement for acknowledgement of guilt is a transaction concluded between the prosecutor, as a representative of the state, and the defendant. The agreement for acknowledgement of guilt must meet certain requirements of substance and form. The court solutions in case of examining the agreement for acknowledgement of guilt can be of accepting the agreement for acknowledgement of guilt and admitting the factual basis of the offence for which the defendant acknowledges his/her guilt and of not accepting the agreement for acknowledgement of guilt. In the first situation, the judgment can be appealed only for procedural errors and the amount of punishment and, in the second situation, the prosecutor may file and appeal within 24 hours or, if not, the court orders the judgment of the case according to the usual procedure.
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Taking into consideration the fact that the coverage of the World Trade Organization has been expanded to the field of services as well, in this study, the author examines litigations in the matter of services, which can be resolved by the mentioned Organization, with the observation that only countries or, as the case may be, the European Union, can be “parties” in such litigations. The implementation of the General Agreement on Trade in Services (GATS) between the countries is conditioned by the “influence” on the international trade in services by various actions taken by the Member States; in this respect, in the practice of GATS implementation, the notion of “influence” is understood extensively.
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Recently, the National Council for Solving Complaints has dealt with numerous complaints against the acts adopted by various companies, which do not have the capacity of contracting authorities, but are beneficiaries of public funds for carrying out certain projects of public interest, companies that, under the financing contracts concluded with the financing bodies, are required to perform the purchases necessary for carrying out the projects according to the Government Emergency Ordinance no. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services concession contracts. This article presents, in a comparative manner, the solutions provided for various complaints and the arguments they are based on, from the recent practice of the Council and the control courts, some of the given solutions and arguments exceeding the limit established by legal norms, in the opinion of the author commenting on them.
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The evolution of the Romanian society in the direction of consolidating the rule of law is accompanied, in some cases, by the amplification of negative phenomena, materialized in the increase in the number of persons committing antisocial actions and evading criminal liability, which requires the taking of actions directly aimed at these categories of persons who can continue to commit crimes, some of them of extreme violence. At present, together with the adoption of the Government Emergency Ordinance no.60/2006 for amending and supplementing the Criminal Procedure Code, the national legislative framework regulating the procedure of starting criminal prosecution is in compliance with the European legal norms and meets the standards imposed by the European Union. The powers provided by the legislation are able to meet the requirements in this field and, at the same time, to support the efforts made by the judiciary police bodies specialized in the activity of investigating and tracking down persons evading the enforcement of judgments, whose ultimate purpose is the achievement of justice.
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In case the criminal prosecution is carried out by the hierarchically higher prosecutor’s office in the matter in which the preventive detention action is requested, according to art. 45, paragraph 1 with reference to art. 33-36 of the Criminal Procedure Code, when deciding the material jurisdiction for solving such a proposal, according to art. 1491 paragraph 2 of the Criminal Procedure Code, the judge takes into consideration the whole criminal matter, namely all the facts and persons investigated in the criminal case in which the prosecutor makes such a proposal and the legal qualification of all these facts established by the prosecutor and valid as at the date of notifying the judge, and not by taking into consideration only the action (and the legal qualification established for such action) or the person in relation to which the proposal for taking such action was submitted.
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In this article, the author asserts with scientific and text arguments that, anytime art. 911 of the Criminal Procedure Code is interpreted as allowing the wire tapping or recording of calls or communications outside the criminal trial (namely without even starting in rem the criminal prosecution in rem), namely in the stage of preliminary acts, this is unconstitutional.
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The author examines the deviated offence in the broader framework of the real and not apparent plurality of offences. The author considers, contrary to the opinion expressed by the other Romanian authors, that for both its main forms – error in personam and aberratio ictus – the correct solution should be that of the concurrence of offences (an attempted offence in the representation of the perpetrator and an offence committed by fault) if in relation to the circumstances of the case, the defendant could and should have foreseen the actual result.
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Dealing with the issue of the Romanian judge, as a guarantor of the public international law enforcement, the author discusses: the issue of the Romanian judge’s power to interpret the conventional international law; issues regarding difficulties in the enforcement of the public international law by the Romanian courts due to the absence of similar internal rules; decisions of the international courts of justice and their effects on the internal legal proceedings (Romanian).
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Law no. 230/2007 on the establishment, organization and functioning of the owners’ associations, stipulates in art. 15: “Subject to a 5-day notice, the owner is obliged to accept the access to its apartment or to its space of a representative of the association, when it is necessary to inspect, repair or replace elements in joint ownership, which can be accessed only from the given apartment or space. Emergency situations, when access is possible without notice, shall be exempted”. In the above study, the author initially examines this text in relation to art. 27 of the Constitution of Romania regarding the inviolability of the home. Further on, he examines the requirements imposed by the same text for its legal enforcement; the situations in which the owner’s refusal to allow access – although the legal requirements are met – is an abuse of right and, in the end, other legal possibilities for the association dealing with the owner’s unjustified refusal to allow access.
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Taking into consideration the provisions of art. 1385, paragraph 4 of the new Romanian Civil Code (adopted and published in 2009, but not yet effective), according to which “if the illicit action caused the loss of the opportunity to gain an advantage, the remedy shall be proportional to the probability of gaining such advantage, by also taking into consideration the circumstances and the actual situation of the victim, and by considering the rich French case law in the field (in the matter of medical liability) the author believes that, in Romania, tort liability could exist even at present (in particular in case of malpractice, as regards medical liability) following the damage caused by losing the opportunity to gain an advantage. For this reason, the author presents in detail the compensation conditions for such damage.
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In this study, after a brief introduction on parental rights and obligations, the author examines, in the light of the legislation currently in force (Family Code – amended by Law no. 288/2007, and Laws no. 272/2004 and no. 273/ 2004), and in the light of the future Romanian Civil Code (published on July 24, 2009 but not yet into force), the status of parental rights and obligations, provided that the child has been legally entrusted to other persons, discussing, in this manner, with priority, the extent to which the parents are entitled to provide their consent to the marriage of their child (if the child is a minor) or to his/her adoption. -
The criminal offence of compromising the interests of justice, according to the new regulation, refers in particular to the respect and authority that needs to be attached to the performance of the act of justice, and such performance is protected by criminal law in two manners, both as regards the criminal offences committed by persons from outside the judicial system in the capacity of unqualified active subjects, and against the “abuses” of any nature committed, on the one hand, by the persons called to perform the act of justice and, on the other hand, by the public servants who, as a result of their work duties, learn about the producing of any evidence, the existence of any means of proof or official documents, which, by their disclosure or revealing, could obstruct or prevent the criminal proceeding, or could influence the order of a solution in the criminal proceeding stage.
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The continuous evolution of the social-economic life and the diversification of the forms of action of criminal groups have required, both as regards criminal offences and domestically, the regulation of the criminal liability of the legal entity. Since crime, in general and economic-financial crime, in particular, is continuously growing, the indictment of the legal entity as active subject of the criminal offence was considered useful. The Romanian lawmaker also did this, first, by amending the Criminal Code in operation by means of Law no. 278/ 2006 and then by drafting a new Criminal Code, according to the European democratic legislation. Given the importance of this institution for the Romanian criminal legislation, we considered useful to make a demanding radiography of this issue.
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The criminal offences against the safety of railway traffic are provided for in the new Criminal Code under Title VII “Criminal Offences against Public Safety”, Chapter I. Taking into account the critical observations expressed in our doctrine, starting with the year 2006, the lawmaker has amended and supplemented both two criminal offences as regards their names, and the content of the others. Regarding the content of criminal offences, we mention that the amendments made refer both to the capacity of active subject and to that of passive subject, which this time may belong to the employees of both State-owned and private-owned operators. Nevertheless, when identifying the most important social values and, subsequently, protecting them by means of criminal law rules, the lawmaker did not take into consideration the current legislation, both domestic and of the European Union regarding the safety of railway traffic and transports. Thus, the most important European and domestic regulations in this field, which had to be taken into consideration in the activity of legal individualization of criminal law penalties, are the Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 (the Railway Safety Directive) and Law no. 55/2006 on railway safety. The critical observations and the proposals made by the author refer precisely to the need to adapt the Romanian railway safety legislation to the European Union legislation.
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According to the title of this study, the author carries out a thorough analysis of the legal institution of acquisitive prescription in the new Romanian Civil Code (Law no. 287/2009), a Code adopted by the Parliament (but not yet in force) in relation to the same legal institution, as it is legally configured in the Civil Code still in force (since 1865).
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HOTÃRÂREA NR. 1 privind aprobarea RAPORTULUI DE ACTIVITATE AL CONSILIULUI U.N.B.R. (între Congresul avocaţilor 2009 şi Congresul avocaţilor 2010) Congresul Avocaţilor întrunit la 17 iunie 2010 în localitatea Mamaia, jud. Constanţa, constituit în conformitate cu dispoziţiilor art. 59 alin. (1) din Legea nr. 51/1995 pentru organizarea şi exercitarea profesiei de avocat, vãzând dispoziţiile art. 61 alin. (1) lit. a) din Legea nr. 51/1995 pentru organizarea şi exercitarea profesiei de avocat, dupã analiza şi dezbaterea Raportului de activitate al Consiliului U.N.B.R. (între Congresul avocaţilor 2009 şi Congresul avocaţilor 2010) astfel cum acesta a fost supus dezbaterii Corpului profesional al avocaţilor, începând cu data de 07 iunie 2010, afişat pe website-ul (www.unbr.ro), comunicat prin poşta electronicã la toate barourile şi, prin grija acestora, comunicat membrilor Congresului în forma prevãzutã de art. 14 alin. (5) din Regulamentul de organizare şi funcţionare a U.N.B.R. şi de desfãşurare a şedinţelor Consiliului U.N.B.R.,
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Prezentul Raport sintetizeazã activitatea Consiliului Uniunii Naţionale a Barourilor din România (în continuare U.N.B.R.) pânã la data întocmirii sale – 01 iunie 2010. Raportul nu poate şi nu are pretenţia de a evoca toate problemele rezolvate în mod curent de Consiliul U.N.B.R. şi organele profesiei subordonate acestuia (Comisia Permanentã a U.N.B.R. şi Preşedintele U.N.B.R.). Congresul avocaţilor este chemat sã decidã dacã în perioada analizatã Consiliul U.N.B.R şi-a îndeplinit obligaţiile şi şi-a exercitat drepturile prevãzute de Legea nr. 51/ 1995 pentru organizarea şi exercitarea profesiei de avocat (în continuare, Legea) şi Statutul profesiei de avocat, în conformitate cu hotãrârile Congresului precedent.
