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Although at first sight the procedure of cancellation of documents, regulated by Article 5491 of the Criminal Procedure Code, seems to be an institution that should not create essential problems, we can see at a closer analysis that certain provisions of the criminal processual rule are at least questionable. Moreover, the aspects related to the unconstitutionality of the provisions regarding the active legal capacity of referral to the judge in this respect have been subject to the analysis of the Constitutional Court of Romania. The problems of interpretation may also persist on the object, on the procedure itself, on the competence to settle the referral or on the limits of investiture of the preliminary chamber judge. Under these circumstances, in this paper we intend to express a point of view in relation to these aspects. With regard to the object of the referral and the limits of investiture of the preliminary chamber judge, we will analyse whether the cancellation of documents, in this procedure, concerns only the main documents or the subsequent documents as well, and whether the act sought to be cancelled is regarded in the sense of instrumentum or negotiumiuris. Another problem that may arise within the settlement of the referral with regard to the cancellation of documents is represented by the settlement competence. In theory, this will pertain to the preliminary chamber judge of the court which would have the competence to examine the case on the merits, certainly, according to the pre-established criteria of the criminal processual rules. Under these circumstances, if there aren’t any discussions in relation to material competence, this being given by the juridical classification of the deed for which the dismissal of action, respectively by the abandonment of the criminal prosecution, has been ordered, with regard to personal competence, we will clarify some aspects. At the same time we will try to answer an apparently simple question, namely: is it legally possible to administer evidence during the settlement of such a referral? -
Unpaid community work has received multiple valences in the Romanian criminal law system, representing either an obligation in the content of the probation measures or a way of executing the penalty of the fine or an obligation that accompanies the abandonment of the criminal prosecution. The complexity of the institution, together with its novelty, has generated a series of difficulties including in respect of the performance of the unpaid community work, this article emphasizing some of these difficulties and proposing solutions for their removal.
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This study presents a possible legislative incoherence, generated by the current form of Article 130 (3) of the Civil Procedure Code, concerning the invocation of the lack of competence of private order of the courts, which may lead to the situation of an incompetent court hearing a request, an abnormal situation in the conduct of a civil legal procedure.
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In this study the author analyzes the victim’s obligation to minimize the damage in the context of a hypothesis of tort civil liability. In this sense, after a short introductory part intended to set the framework of the analysis, the author proposes to identify what would be the normative provisions from which the victim’s obligation to minimize the damage would derive, emphasizing the fact that, despite the lack of a clear and unequivocal rule in this sense, the existence of the obligation still derives from a whole series of legal provisions. The particularities of the obligation to minimize the damage are further addressed, its general legal regime being decrypted, with emphasis on those aspects that distinguish and individualize it in relation to other legal institutions, but also its mode of operation. Likewise, the author aims to identify the legal nature of the obligation to minimize the damage, underlining the limits of the theses advanced so far and showing why the obligation is a sui generis one. Further on, there are emphasized the consequences produced by the obligation to minimize the damage, whether respected by the victim or not, and in the end there are presented brief considerations referring to his procedural regime. -
An application of the new technologies has involved a modern regulation, and the European states have received the electronic form of the patient file and have transposed it into a relatively recent regulation, and the novelty of the problems and the strict dependence on the IT platforms have led to successive changes in the legislation, at the level of several states. Adjustments, correlations, adaptations took place at the law-technology border, in relation to the „physical” reality of the national medical system. The electronic health file does not have the role of replacing the „classic” file, in written form. The latter remains in the circuit of the health system and preserves its usefulness, and the medical act is not conditioned by the existence of an electronic file. From the DES perspective and for the usefulness of the approach undertaken, some guarantees of the protection of private life and personal data were verified. The secrecy of the data concerning health is no longer just a „privacy” between the patient and a limited number of people, but is „displayed” on an IT platform, to which several natural persons/entities have access, the technical access key (matrix, user, password) is entrusted to the users through the administrator, given that the Internet is an environment susceptible to the generation of security breaches. Granting access to the entire electronic file implies that the medical staff is aware of all the information and all the health problems of a person. The secret becomes a „shared” one and the central problem (of the patient) is the control – over the private life, over their own personal data, over the information that, otherwise, they would not want to be disclosed in a virtual environment. At issue is not only a balance between public interest (public health) and private interest or between personality rights that can end up in a conflicting position. If it will be proven that the interest of the medical care coordination prevails over the patient’s acceptance, then the electronic file will remain outside the true control of its owner. But, if, on the contrary, the patient has the prerogative of control (with justified, strict, limiting exceptions), then his right to limit access to the file will be recognized. -
In this study, the author aims to highlight a number of manifestations of the principle of availability in civil proceedings that have been sanctioned for the abuse of procedural law. From the analysis of the judicial practice, we identify a multitude of situations in which the person’s right to file a lawsuit is exercised for purposes other than the one for which he was recognized by law, which was sanctioned by the application of a judicial fine. The right to sue and the right to appeal must be exercised in good faith, in accordance with the purpose enacted by the legal provisions, and not to pursue the production of a detrimental result to the adverse party. -
The action regulated by Article 1064 of the Civil Procedure Code has a special regime, derogating from the classic situation of tortious civil liability, regulated by Article 1357 of the Civil Code. The practical situation of this action is somewhat uncertain, as there is no unitary judicial practice that decides the legal nature of the action for damages provided by Article 1064 of the Civil Procedure Code. In these conditions, we considered it opportune to analyze the legal nature of the action for damages regulated by Article 1064 of the Civil Procedure Code, in a parallel vision with the provisions of Article 1357 of Civil Code, which regulates tortious civil liability. All this, by reference to those established by a recent court decision resolving such an action for damages. In the present study we tried to offer a perspective and a practical analysis on several situations generated by the application of Article 1064 of Civil Procedure Code. -
The present study begins with the analysis of the texts of Article 630 of the Civil Code, where there can be found the legal relevant provisions, followed by some considerations regarding the origin of the civil liability for the abnormal neighbourhood inconveniences under the influence of the old Civil Code. Furthermore, the author appreciates that, at present, from the economy of the texts of Article 630 of the Civil Code, it results that the civil liability in question is of two types: reparative and preventive. Further on the scope of this liability is circumscribed. For this purpose, on the one hand, it is established the sphere of the persons between whom it can be engaged, and, on the other hand, there are determined and qualified the neighbourhood inconveniences that can generate it. An important and ample space is conferred to the analysis of the conditions that must be met for the existence of this liability, as well as to the detection of its theoretical foundation. Thus, in the reparative variant, the existence and the engagement of civil liability requires to cumulatively meet three conditions; two of them are the general conditions of any reparative civil liability – damage and relation of causality – and a special or particular one, which is the abnormal neighbourhood inconvenience caused to the victim, directly or indirectly, personally or by another, by the owner or owners of one of the neighbouring buildings. Therefore, it can be easily established that the fault or guilt, proven or presumed, of the neighbouring owner or of other persons, who exercise the attributes of the property right, over or beyond its normal limits, is not a necessary condition of engaging this reparative civil liability. Consequently, the problem of the theoretical foundation of liability is also solved legislatively, in the sense that we are in the presence of an objective civil liability, without the guilt of the liable person or of other persons, according to Article 630 (1) of the Civil Code.
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Prin cererea de chemare în judecată adresată Judecătoriei Constanța la data de 11 iunie 2018, contestatorul S.P. în contradictoriu cu intimata Direcția Generală Regională a Finanțelor Publice Galați – Administrația Județeană a Finanțelor Publice Constanța a solicitat instanței să dispună anularea executării silite înseși și a actelor de executare silită subsecvente, inclusiv Somația din data de 30 martie 2018 și Titlul executoriu din data de 30 martie 2018 emise în Dosarul de executare xx, respectiv să oblige intimata la plata cheltuielilor de judecată.
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Article 5 of the Civil Procedure Code1 regulates the fundamental principle of free access to justice and the obligations that the legislator establishes as duty of the judge are meant to outline this principle2 . Free access to justice is a fundamental principle of the organization of any democratic judicial system, being enshrined in an important number of international documents, therefore it has special meanings both for procedural law and for the constitutional law3 .
