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În condiþiile în care nu existã, în prezent, dispoziþii general aplicabile în legislaþia privind circulaþia juridicã a terenurilor, care sã reglementeze dreptul de preemþiune ca o condiþie de nulitate a actului de înstrãinare încheiat cu încãlcarea acestui drept, legiuitorul a lãsat în atributul legilor speciale sã reglementeze dreptul de preemþiune, în funcþie de natura juridicã a bunului. În cazul arendei, la data încheierii contractului de arendã, ca ºi în prezent, dreptul de preemþiune nu este reglementat de lege ca un impediment legal în transmiterea cãtre o altã persoanã a dreptului de proprietate, ci ca un drept contractual al arendaºului. -
În versiunea originalã a Convenţiei (europene) pentru apãrarea drepturilor omului şi a libertãţilor fundamentale (în continuare denumitã Convenţia), moartea nu putea fi cauzatã unei persoane în mod intenţionat, decât în executarea unei sentinţe capitale pronunţate de un tribunal pentru o infracţiune sancţionatã prin lege cu o asemenea pedeapsã. Astfel, pedeapsa cu moartea nu era interzisã, cu condiţia respectãrii principiului legalitãţii, aceasta şi datoritã faptului cã în acel timp (data semnãrii, respectiv data intrãrii în vigoare a acestui document), în majoritatea statelor membre ale Consiliului Europei pedeapsa cu moartea era stipulatã în legislaţiile penale interne2.
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Chile stands out in Latin-America because its economic growth has resulted in a progressive decrease in poverty and marginality levels. Chile’s unique strides in economic growth have made room for increasingly dignified lives for its people. Along with this improvement in the standard of living, there has been a more thorough exercise of human rights. The normative groundwork for this successful economic model is located in the Constitución Política de la República de 1980, the 1980 Constitution, which contains an economic public order based on two elements – 1) the exercise of personal liberty and 2) the subsidiary role of the State.
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In essence, the article emphasizes the inconsistent practice of the courts, as regards the consequences of changing the legal classification of the criminal offence – the subject matter of the judgment – by indictment, an action of initiating proceedings before the court, on the means of appeal in the criminal trial. The legal matter under discussion takes into consideration the impact of the provisions of art. 361, paragraph 1, letter a) of the Criminal Procedure Code and of art. 3851 paragraph 1, letter d1 of the Criminal Procedure Code, according to which the judgments regarding criminal offences for which the initiation of criminal procedure is carried out following the preliminary complaint of the injured person cannot be challenged with an appeal, but only with a second appeal . Thus, in relation to the new legal classification of the criminal offence – the subject matter of the judgment – the means of appeal that can be used in such criminal cases must be established. In our opinion, in case of changing the legal classification, the legal classification given to the criminal offence – the subject matter of the judgment – by the court whose decision is subject to judicial review is decisive in establishing the means of appeal.
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The challenge on enforcement does not refer to the merits of the judgment of conviction, but it is directed against its enforcement and, for this reason, its completion consists in eliminating the illegal matters occurring in the enforcement or during the enforcement of the judgment. The probation service attached to the tribunal has no competence to file a challenge on enforcement with the court of law for reasons of illegality occurred during the surveillance of the person convicted and, in particular, for matters related to the personal interests of the convict. If, during the surveillance, problems or interests of the convict occur that prevent the convict from appearing on the dates scheduled, the probation service has the competence to examine the reasons invoked and revise the initially scheduled surveillance plan.
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The criminal procedure rules according to which the „transfer of procedures in criminal matters” is carried out are comprised in the international treaties and conventions to which Romania is a party, which are supplemented by Law no. 302/2004 on international judicial co-operation in criminal matters, plus the provisions of the Criminal Procedure Code. „The transfer of procedures in criminal matters” entails two manners of performance, according to the capacity in which the Romanian State is involved in its carrying out, namely: - delivery of criminal procedure; - reception of criminal procedure.
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Entities with administrative-jurisdictional activity, such as the National Council for Solving Complaints, have duties strictly delimited by the regulations establishing them and organizing their operation. According to the Law no. 554/ 2004 on administrative litigation, the special administrative jurisdiction represents the activity carried out by an administrative authority that has, according to the applicable special incorporating law, jurisdiction to solve a conflict regarding an administrative action, according to a procedure based upon the principles of adversary proceeding, ensuring the right of defense and the independence of the administrative-jurisdictional activity. In carrying out this complex activity, is sometimes possible that the notifications received by the jurisdictional authority exceed its scope of jurisdiction, a situation in which it has the obligation to establish whether there is a competent court of law or another competent entity with jurisdictional activity, to which it could forward the notification erroneously referred by the complainant. The fulfillment of this legal obligation supports and guarantees to the complainant effective access to the institution having jurisdiction to solve his/her claim, in agreement with the principles of any fair trial. Numerous times, after finding justified the exception of its lack of jurisdiction in trying certain cases, the Council ordered their declining towards the competent courts of law, subsequently referring such cases to the courts. Although most courts towards which the declining was ordered accepted the files received, according to the case law of certain Courts of Appeal, the legal institution of declining is not available to the administrative-jurisdictional entities, which should have dismissed the claims received, and not decline them. This study presents with criticism the latter solutions issued by the courts of law in the legal matter of declining, as well as the author’s arguments in supporting its resolution in agreement with the legal rules.
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The author examines the concept of administrative-jurisdictional action in the context of the doctrinal opinions issued prior to the enactment of Law no. 554/2004 (amended by Law no. 262/2007), as well as subsequent to the enactment of the above-mentioned law, amended by the law mentioned. Further on, the author examines in detail two characteristics of the administrative-jurisdictional action, namely: the principle of immovability and the res judicata force, reaching the conclusion that such actions have the res judicata force, but only provided that the legal stages of appeal are not filed with the court of law, within the deadlines and under the conditions provided by the law, or that such stages of appeal, being filed, were dismissed and, consequently, the decision of the administrative jurisdictional body was maintained.
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In this study, the author examines the constitutional and legal statute of the Romanian Court of Accounts, according to art. 140 of the Constitution of Romania (revised and republished on 31 October 2003), corroborated with a series of provisions contained in Law no. 94/1992 for the organization and operation of the Court of Accounts, as republished, for the second time, on 29 April 2009. To this effect, the authors examine the constitutional and legal statute of: the counselors of accounts; the personnel making up the executive management of the Court of Accounts and the Audit Authority, as well as the specialized personnel of the Court of Accounts (external public auditors).
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In this study, the two authors examine certain particularities of the commercial mandate contract existent between the managers of joint-stock companies and the given companies, with the specification that the term “managers”, in the above context, applies exclusively to the managers referred to under art. 143 paragraph 1 of Law no. 31/1990 regarding companies, republished on 17 November 2004 (those whom the Board of Directors delegated the management of the company and who, as the case may be, can be appointed among the directors or from outside the Board of Directors), and not to members of the directorate (existent in joint-stock companies organized in dual system) or to “specialized” managers, who are not representatives of the social will, but run certain specialized compartment.
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In this study, the two authors examine certain particularities of the commercial mandate contract existent between the managers of joint-stock companies and the given companies, with the specification that the term “managers”, in the above context, applies exclusively to the managers referred to under art. 143 paragraph 1 of Law no. 31/1990 regarding companies, republished on 17 November 2004 (those whom the Board of Directors delegated the management of the company and who, as the case may be, can be appointed among the directors or from outside the Board of Directors), and not to members of the directorate (existent in joint-stock companies organized in dual system) or to “specialized” managers, who are not representatives of the social will, but run certain specialized compartment.
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In this study, the author fights – with arguments – an opinion that remained isolated in the Romanian civil law doctrine (an opinion according to which art. 32, paragraph 1 of Law no. 18/1991, republished on 5 January 1998, a text according to which certain categories of terms, assigned according to art. 18 paragraph 1, art. 21 and art. 43 of this law, cannot be transferred for 10 years to the company from the beginning of the year following the year in which the registration of the property was made under the penalty of absolute nullity of the deed of transfer would have been abrogated by Laws no. 54/1998 and no. 247/2005).
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Causes leading to change of punishment are such conditions, circumstances or contexts which are exterior to the contents of the crime and which outline a higher or lower level of social danger of the deed or of dangerous behavior of the criminal, thus determining a change of punishment, either in terms of quantity (in the form of duration or amount), or in terms of quality (change of one main punishment by another). In these causes, a distinction is made between attenuating and aggravating causes. The attenuating causes category includes attenuating conditions and attenuating circumstances, while the aggravating causes category includes aggravating conditions and aggravating circumstances. -
The authors of the new Criminal Code intended to redesign the punitive model of relapse, but the solutions proposed reveal the inconsistencies of the model. The new Criminal Code no longer defines the post-condemnation relapse distinctly from the post-execution relapse, and the small relapse no longer exists in the new regulation, the lawmaker preferring a general definition of relapse. Although the intention of the code’s authors, transmitted to the lawmaker, was to aggravate the punishment regimen of relapse, by increasing the duration of imprisonment, which may represent a first term for relapse in one year, in practice a more favorable regimen is created for those who have been punished to imprisonment for less than one year, a thing, however, not justified given the statistic evolution of the number of persons with a judicial record who reiterate their criminal behavior. The idea of the project’s authors was to simplify the regimen of punishment of relapses, based on an arithmetic sum in the case of post-condemnation relapse, and on the legal increase of special punishment limits by half in the case of post-execution relapse, but the proposed model of punishments leads to a more severe punishment regiment for post-condemnation relapse than for the post-execution relapse, although the latter is believed to represent the worse modality of relapse, as the social danger of the relapsing criminal appears, in this case, to be more precisely shaped, by proving the inefficiency of the punishment the criminal has executed.
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Raportul de expertizã întocmit într-o cauzã penalã ce viza sãvârșirea unor infracțiuni de cãtre reprezentanții unei societãți comerciale constituie, în litigiul având ca obiect contestarea de cãtre respectiva societate a legalitãții unor acte administrativ-fiscale, un mijloc de probã extrajudiciar, care prin excepție de la principiul nemijlocirii probelor, poate fi folosit numai în cazul în care nu pot fi administrate probe judiciare în cauza respectivã (Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal, decizia 5115 din 13 noiembrie 2009).
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According to the latest’s international studies about economics in Latin America, a natural problem that have emerged it is the lack of finance oriented in two fronts: in first place, to the small and medium corporations, and in second place, to promote businesses devoted to the technological innovation. In that lines of ideas, for the last years have being accepted in the Chilean Congress several changes in the commercial law, destined to provide an adequate juridical structure to provide entrepreneurs to generate the evolution our markets require to enter a natural standard of growth, two politics in this direction were the creation of corporations of multiple guaranty, and stock divided corporations with limited responsibility, who are called as a concrete solution to this problems.
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In this article, the author attempts to draw the attention of law practitioners in Romania on the importance of the “money laundering” phenomenon, in the context of the need to fight against organized crime and crime in general, followed, in most cases, by the attempt to “legalize” the income obtained from criminal activities. We believe that the action is welcome, being aimed at a better specialization of Romanian practitioners, also in the context of the relative “novelty” of this criminal pattern at both national and international level, in the field of prevention and fighting against money laundering.
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The authors intend, in the first part of the article, to clarify, based on decisions made by the European Court of Human Rights, the meaning of “criminal charge” in relation to the provisions of art. 6 of the (European) Convention for the protection of human rights and fundamental freedoms, while in the second part of the article, they review the effects of the decision made in the case Anghel vs. Romania on the national legal framework and on case law.
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The article reviews the effects of suspending the judgment of the case during the settlement of the non-constitutionality exception, by reference to art. 6 of the Convention for the defense of human rights and fundamental freedoms, in particular in what regards the requirement of a reasonable hearing term and of celerity of the criminal trial. In addition, the consequences of resolution no. 3/ 2010 of the Constitutional Court on pending criminal procedures on the dockets of the courts of law are discussed.
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Starting from a decision made in the interest of the law by the High Court of Cassation and Justice, which stated that the terms regulated in art. 278 para. 3 and in art. 2781 para. 2 of the Criminal Procedure Code, for exercising the remedy of complaint against resolutions or ordinances of the prosecutor for not sending a case to justice, can only represent peremptory procedural terms, the article analyses the consequences on the fairness of the procedure of non-settlement by the hierarchically superior prosecutor, within the deadline provided by law, of the complaint against the solution of not sending a case to justice, reaching the conclusion that the legal text under review should be reconfigured, either by way of clarifying the nature of the term provided in art. 277 of the Criminal Procedure Code as a lapse term, or by way of linking the term referred to in art. 2781 of the Criminal Procedure Code to the time of communication of the solution of the hierarchically superior prosecutor, to avoid “deviations” from the fairness principle.
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According to the decision of the supreme court, further to the judge admitting the complaint against the resolution not to initiate criminal investigations and sending the case to the prosecutor, the latter cannot be obliged to initiate the criminal investigation; in his turn, the judge cannot hold the case for settlement, the consequences being very serious in what regards free access to justice.
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According to the provisions of art. 270 para. 2 of the Romanian Customs Code, as amended by Law no. 291/2009, for the offence of smuggling to exist, it is necessary that the customs value of the goods or merchandise concealed from customs control exceed RON 20,000 in the case of products subject to excise tax and RON 40,000 for other goods and merchandise. This study is aimed at the identification of the procedures for establishing the customs value of the merchandise, according to the provisions of the Customs Code, of the Regulation for its application and of the Norms applicable to travelers and other individuals, as well as the limitations regarding the ordering of an expert report in the case, by way of ordinance issued by the prosecutor performing the criminal investigation.
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In this study, after briefly describing the concept of sovereignty, the author successively examines the sovereignty of member states in their relation with the European Union, express restrictions of sovereignty (changes which occurred in the constitutions of member states); certain issues regarding the permanent integration of member states.
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Lately, the National Council for the Settlement of Challenges faced numerous challenges against acts of various commercial companies, without having the capacity of contracting authorities, but who benefit from public funds for the performance of certain public interest projects, companies which, according to the financing agreements concluded with the financing bodies, should have made any acquisitions necessary for the performance of the projects based on the Government’s Emergency Ordinance no. 34/2006 on the award of public procurement contracts, of contracts for the concession of public works and of contracts for the concession of services. The study represents the second part of an article with the same title, published in issue no. 7/2010 of this magazine and is intended to present a comparison of diverging solutions to such challenges and the grounds they are based on, as encountered in the recent practice of the Council and of control bodies.
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According to art. 32 of the Land Property Law no. 18/1991 (republished on January 5, 1998) in the case of „establishing” the right of ownership as provided in this law, the land thus attributed to individuals „shall not be alienated by documents between the living for 10 years, starting from the beginning of the year following the one during which the property was registered, under the penalty of absolute nullity of the alienation document”, the city hall, the prefect’s office, the prosecutor’s office or any other interested person being entitled to file a claim for the ascertainment of nullity. The author discusses the general cases resulting from this text of law, and in principal whether the 10-years term lapses (is counted) from the „registration” of the property in agricultural registries or from its „transcription”, or „registration” of an alienated property in transcription registries, namely its „registration” in the Land Book.
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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.
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Starting from the hypothesis of art. 1073 of the Civil Code („the creditor is entitled to obtain the exact fulfillment of the obligation”, otherwise being „entitled to remedies, the latter being called “damages” in the Romanian legal language), the author makes, in this study, a review of the issue of evaluating default damages in the case of money obligations, namely of the (default) interest, then detailing, in the third part, the legal regimen of legal interests in commercial matters.
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In considering the very succinct legal regulations (art. 191–203) regarding limited liability companies in Law no. 31/1990 – the Companies Law (republished in 2004, as subsequently amended and completed), the author only examines issues related to such commercial companies, namely: the revocation of their directors, on the one side, and the transfer of shares in limited liability companies, on the other side.
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In the study above, the author examines the issue of redemption of own shares by a company admitted for trading on a regulated market, under the conditions of art. 1031 of Law no. 31/1990 regarding trading companies (republished on November 17, 2004), of EC Regulation 2273/2003 and of Directive 71/91/EEC. For this purpose, the author reviews: how the redemption of own shares is performed in practice, the juridical effects of such redemption, the funds employed to make the redemption; various specific cases in the matter.
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The author, after explaining the „valorism” and „value debt” concepts, enters into details on the issue of aggregation of default interests (art. 1088 of the Romanian Civil Code – 1865 –, still into force), reaching a conclusion, which agrees to a minority juridical doctrine, that the interest may be aggregated to a value debt.
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Starting from two recent decisions of the Constitutional Court of Romania, according to which the constitutional contentious court ruled that both the grounds and the purview of its decisions are generally mandatory, the authors of the study perform an examination of the case law of this Court, meant to support the stated rule. Based on numerous examples from the Constitutional Court case law, the importance of the grounds of decisions made by the court is emphasized, in particular when in such grounds the Court mentions the consequences of ascertaining the non-constitutionality of the texts under review. The conclusion of the study is that, in essence, the observance of the general mandatory character of the decisions of the Constitutional Court is not only a way to make its purview more efficient, but also to make the grounds more efficient, or the Court’s interpretation of the fundamental law. At the same time, an opinion is expressed that, in order to guarantee the Constitution, the intervention of the Constitutional Court is not only legitimate, but also necessary, in what regards the provision, in the contents of the grounds of decisions, considering the specific effect of constitutional law attached to any of the decisions of the Constitutional Court, of what the effects are of finding the texts under review constitutional or even non-constitutional.
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According to art. 1088, paragraph 1 of the Romanian Civil Code (in force, “For obligations having as object any amount, damages for performance shall comprise only the legal interest, except for the special rules regarding trade, guarantees and companies”. The author criticizes this regulation that actually leads, in numerous situations, to damaging the creditor, if the maximum interest limit is lower than the amount of the damage caused by failure to perform or late performance of the obligation to pay an amount, showing that the above-mentioned legal solution, taken from the French Civil Code, is not presently provided in the Italian, German, Swiss and English systems. Moreover, the new Romanian Civil Code, published in July 2009, but not yet effective, stipulates (in art. 1535, paragraph 3) that, if the interest due (for failure to perform the pecuniary obligation in due time) does not cover the entire damage incurred, the creditor shall be entitled, in addition, to damages for any additional damage incurred due to debtor’s failure to perform the obligation. In the end, the author considers that the regulation of the possibility for reduction of damages by the court would not be opportune – at present – in Romania. -
This study represents, in its essence, a micro-monograph regarding the right to image, a component of personality rights. In this respect, following a presentation regarding the “personality rights, in general”, the authors examine in detail the issue of the right to image (notion, basis, autonomy of the right to image, consent to the reproduction of one’s image, limits of the right to image, image contract, extinguishment of the right over image).
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Human personality represents the synthetic expression of biological, psychological and social features, a result of the interaction of fundamental factors: heredity, environment and education. People cannot exist like isolated, single individuals, but only as individuals who are in a permanent cooperation with each other for the purpose of transforming the social environment. For this reason, the human being, as personality, reflects an entire ensemble of psychophysiological, moral and esthetic features and capacities, abilities etc. These factors of the human personality (genetic and acquired) mandatorily create the elements of human dignity: honor, which is an inborn attribute and reputation, which is an acquired attribute. For this reason, the protection of the dignity of the person has represented a subject of legal protection since the earliest times for all legislations, and only the content of incrimination or the penalty prescribed by the incriminatory rule has varied. At present, as well, human dignity represents a fundamental social value that needs to be protected since the normal development of social life is not possible without protecting this value. The European countries with modern legislation have regulated the incrimination of crimes against dignity. In the spirit of our tradition and of adapting the Romanian legislation to the European legislation, Romania is required to do the same thing. The grounds presented in this article represent arguments in this respect.
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The author shows that, in the new regulation, the essential characteristic regarding the social danger entailed by the criminal action committed was removed from the definition of the crime. Instead, two new essential characteristics were introduced, namely: the action committed, which is provided by the criminal law, is unjustified and not imputable to the person having committed it. Also, reference is made to the correlation between the institution of the action provided by criminal law and the institution of the crime and the essential characteristics of the crime are examined.
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The author notices that the new definition of the material element of the objective side of the crime is clearer than the current wording. Unlike the current regulation regarding the sexual intercourse, of any type, in the new wording of the incriminatory rule, the lawmaker refers distinctively to the sexual intercourse, the oral or anal sex, in case of the form of crime, and distinctively to any other acts of vaginal or anal penetration, in case of the assimilated form of crime. The passive subject of the crime may be, in the new wording of the incriminatory rule as well, any person irrespective of gender, age, civil status, including the perpetrator’s wife. The aggravation of the crime is triggered by six aggravation causes, unlike the four in the current Criminal Code, following the provision of new forms of aggravation or the redefinition of aggravation causes in the case of rape against a relative in direct line or against a brother or sister; rape against a minor under 16 years of age; rape committed for producing pornographic materials; rape resulting in the injury of the victim. The incrimination of attempted rape proves the inconsistency of the lawmaker. The system of penalties provided by the new Criminal Code raises the question of enforcing the more favorable criminal law.
