Termination of payments or insolvency is the patrimonial state of an entrepreneur that is outlined by the impossibility of creditors to pay. In this case, a collective procedure is in place to cover the insolvency debtor’s liability, a procedure governed by the provisions of Law No 85/2014 on insolvency and insolvency prevention procedures. This procedure, although it is a collective one, retains its contradictory character, litigious issues being usually settled with parties summoning. The fundamental principles of the civil process governed by the Civil Procedure Code also apply to insolvency. The Civil Procedure Code is the common law of insolvency where the Insolvency Law does not contain special rules. The way in which the participants in the procedure are summoned or notified, as well as the manner in which the communications of procedural documents and information in the insolvency proceedings are made, are simplified and dematerialized. Notifications and communications are made through the Insolvency Procedures Bulletin (BPI), an electronic publication managed by the Trade Registry. Anyone can get information on a business partner’s insolvency procedure through a simple search in this database.

This article analyzes the particularities of the suspension by judgment of the enforcement of administrative acts. The legal institution of suspension of the enforcement of administrative acts is a legal instrument made available to the persons claiming to be injured and constitutes a guarantee against the producing of some irreparable damage. The author investigates the conditions and legal effects of the suspension of the enforcement of the administrative act after formulating the prior complaint and the suspension requested in the main proceedings, including also some proposals de lege ferenda. The research is carried out taking into account the latest amendments to the Law on administrative disputes No 554/2004 by the Law No 212/2018 amending and supplementing the Law on administrative disputes No 554/2004 and other normative acts. Also, within this research, the author refers to the decisions of the Constitutional Court on the pleas of unconstitutionality raised in this matter.

Competența materială de a judeca propunerea de arestare preventivă a inculpatului față de care s-a pus în mișcare acțiunea penală pentru infracțiunea de nerespectare a regimului armelor și munițiilor, prevăzută de art. 342 C.pen., aparține judecătorului de drepturi și libertăți din cadrul judecătoriei, chiar dacă în cauză s-a început urmărirea penală in rem pentru infracțiunea de constituirea unui grup infracțional organizat, prevăzută de art. 367 C.pen.

Ideea de reparație este, cum scria un autor, „una din cele mai vechi idei morale ale omenirei” (G. Ripert, La règle morale dans les oblig. civiles nr. 121, p. 223). În decursul timpurilor ea a suferit o serie de transformări, a parcurs mai multe etape, rezumate în cele 4 subtitluri ale studiului de față, care urmărește numai să schițeze în linii mari sensul acestei atât de interesante evoluții, care are semnificația drumului penibil al însăși ideei de Dreptate. Noțiunea de răspundere, în adevăr, se situiază în centrul tuturor instituțiunilor juridice care au de obiect reglementarea raporturilor între indivizi în societate, având un rol regulator și sancționator, întru cât tinde la păstrarea echilibrului rupt prin actele ilicite, fie că sunt violări de obligațiuni contractuale, fie că au caracterul și mai grav al călcării unor norme de conduită, pe pare societatea însăși le impune și îndeosebi acea normă negativă universală de neminem laedere, care constitue în esență principiul din care decurge însăși ideea de răspundere.

The courts can not censure the decisions of the Constitutional Court in terms of the statements which they contain with regard to the unconstitutionality of a legal norm and the impact they have on the way of settling the ongoing disputes, respectively not finalized through the pronunciation of some irrevocable judgments, following the cessation of the application of that norm by declaring it unconstitutional. They have the obligation to apply the decisions of the Constitutional Court to their letter and spirit and they can not add by way of interpretation elements that are capable of restricting them or, respectively, to extend their scope. By the Decision of the Constitutional Court No 369/2017 it has been stated that all the judgments pronounced after the publication of the decision in the Official Gazette of Romania are subject to appeal, in the cash assessable applications, except for those exempted according to the criterion of matter, expressly provided in the theses covered by Article XVIII (2) of the Law No 2/2013. In the application of this decision, the High Court of Cassation and Justice – the Panel for the settlement of some matters of law, by the Decision No 52/2018 has stated that the effects of the decision of unconstitutionality will concern all judgments pronounced after the date of its publication, but in trials commenced after 20 July 2017. By this statement, the decision of the Constitutional Court No 369/2017 has been amended without justification under the pretext of the settlement of the matter of law concerning the application of that decision over time. By the Decision of the Constitutional Court No 454/2018 it was established that the High Court of Cassation and Justice does not have the power to rule on the effects of the decision of the Constitutional Court or to give binding rulings which are contrary to the decisions of the Constitutional Court, but has the obligation to apply that decision in such a way suitable to its considerations to the case subjected to judgment. The Decision No 454/2018 has an interpretative character and therefore, by way of derogation from the principle according to which the decisions of the Constitutional Court apply only for the future, it has a retroactive effect, in the sense that it is put into application from the date when the Decision of Constitutional Court No 369/2017 began to take effect.

Within the international trade relations, risks may currently arise from certain facts or events that result in conflict situations between the parties involved in commercial operations, having as consequence the appearance of the litigation. In this context, a special place is occupied by maritime litigation, a complex, plurivalent dispute, combining elements emerging from international trade law, transport law and maritime law. The present study aims to identify and analyze the main issues that give the maritime litigation a particular nature, conferring it, legally, a specific character compared to other international trade disputes. The objectives of the research are circumscribed to the analysis of the characteristics of the maritime litigation, of the causes of its occurrence and of its conditions of manifestation. Within the paper, special attention was devoted to studying how to instrument the maritime litigations, with the methods of the maritime technique and the legal and economic solutions used in this matter. With regard to the procedures of settlement of maritime litigations, the study focuses on highlighting the operational phases, the analysis of evidence and of other issues that configure the applicable procedural framework in case the parties involved have expressed the option to settle the dispute for the contentious procedure. Examining the specific features of this original type of disagreement has highlighted a pronounced pragmatic character over the theoretical argumentation taking into account the force of maritime or harbour regulations or usages in this field. The notion of maritime litigation and its regulation became outstanding at a stage preceding the emergence of maritime law. Over time, seafarer’s practices have created usages and traditions specific to trade in goods carried by sea, which have led to the unification and even codification thereof in the context of classical maritime law. The scope of the notion of maritime litigation is much wider than that of the maritime trial and has an earlier application over time, whereas only a part of the maritime litigations lead to a proper judicial trial or to a maritime arbitration. Maritime litigations can be defined as disputes between two or more parties involved in the maritime expedition or between the signatory parties to specific contracts used in all activities related to maritime trade. In this regard, disputes of a maritime nature may arise as a consequence of the non-performance or malfunction of maritime transport contracts, so that it is indicated to mention in these contracts some specific clauses, stating the modality and rules for solving such conflict situations, including the jurisdiction clause, since the non-inclusion of this clause raises disputes over the jurisdiction of the courts of such litigious cases. Maritime litigations are dealt with by the specialists in the field both in the ante-judicial and judicial stage, through the correct coordination of the parties involved and the professional settlement of all the litigious aspects. The specialist in maritime litigations should be a person with cumulative competencies in the technical, economic and legal field, maritime navigation and port exploitation. Solving major maritime disputes is a complex and laborious process, which requires pragmatism, accuracy, increased attention, quick decision and efficiency. The general procedure for dealing with this disagreement is carried out on the basis of a strictly technical, specialized methodology and requires going through several phases such as the finding the occurrence of the event or conflict-generating act, the notification of the parties involved, the collection and preservation of the evidence for defence or for the drawing up of the complaint, quantifying and filing the complaint, taking a decision on the modality of approach, the negotiation and pronunciation of the solution to finalize the case. The resolution of maritime litigations is based on the case law in the field, strongly influenced by international maritime conventions and on the relations created between the rules from various law systems, applicable in the field, in the context of assimilation and implementation of the international trade usages.

In the context of the amendments operated on the Administrative Disputes Law No 554/2004 by the Law No 212/2018, the author proposes to analyse the time limits in which the prior complaint can be filed and to analyze each of them separately, by grouping them according to the subject of the prior complaint and to the object of the prior complaint. The author makes the transition from the time limits imposed on the addressees of the administrative act to the time limits imposed on third parties, in the situation of the typical and assimilated individual administrative act, by investigating the length of the time limit, the moment from which it starts, the legal nature or the applicable legal regime and the sanction applied in case of non-compliance with these time limits. The main time limits within which the prior complaint can be filed are analyzed, special attention being given to cases where the prior complaint is not mandatory. Finally, the author emphasizes the importance of applying these time limits in just measure so that the prior complaint procedure does not become an obstacle, not related to the concrete situation, in the way of access to justice of the alleged injured party, nor it becomes an instrument of abuse.

Over time, the claim for awarding legal costs in the civil trial has not been paid due attention. Starting with 1959, following a decision of the Plenum of the Supreme Tribunal, in the practice of the courts, as well as in the specialized works has been taken over automatically, until it has been imprinted in the collective mind, the idea that the court costs can be claimed at any time until the debates are closed on the merits, and the court may even draw attention to this issue, or they may be claimed separately, even if they were initially requested within the dispute. The present study aims to analyze the legal status of awarding the claim for costs, while giving at the same time the correct legal classification of this claim by reference to the texts of the Civil Procedure Code. Thus, we will show that this claim brought to the justice can not be subject to the discretionary will of the parties, but must be circumscribed by the procedural rigors with regard to filing a claim before the court. In the first instance, the party must accordingly request court costs, respectively by way of introductory application, an objection, an intervention, etc. If it did not do it, as a rule, it will not be able to claim them within that litigation. If it did it, but then waives their request in the initial litigation, wishing to claim them separately, it will be subject to the consent of the opponent. In the redress or withdrawal means of appeal, claiming the court costs is conditionned twice, both in the compliance claim before the court of first instance and in the compliance claim before each court that has examined the case (by way of appeal, objection, etc.). The practical implications of the study are some of the most spectacular, since the party that does not comply with the procedural rigors of the claim for court costs will either be in a position to promote separate action for their recovery or in the event of a final impossibility to recover, in whole or in part, the advanced court costs.

Faptul că autoturismul în litigiu a făcut obiectul mai multor vânzări succesive și s-a constatat că a fost furat, deschizându-se un proces penal împotriva autorului furtului, nu înseamnă că reclamanta își putea recupera prejudiciul constând în plata prețului plătit. În ceea ce o privește pe reclamantă, prin Ordonanța din data de 20 ianuarie 2015 a Parchetului de pe lângă Judecătoria Galați s-a dispus clasarea cauzei, reținându-se în motivare faptul că nu au fost identificate indicii care să conducă la concluzia că reclamanta ar fi cunoscut faptul că bunul era furat. Tot în procesul penal, prin Ordonanța din 27 august 2014 a Parchetului de pe lângă Judecătoria Galați s-a dispus restituirea autoturismului către proprietar, astfel că reclamanta, care devenise proprietara autoturismului în baza contractului de vânzare-cumpărare încheiat cu pârâtul, l-a predat organelor de cercetare penală, care în baza procesului-verbal din 16 septembrie 2014 l-au restituit proprietarului. În aceste condiții, în mod corect prima instanță a statuat că temeiul obligației a cărei executare este urmărită este contractual, iar, potrivit dispoziției art. 1695 alin. (1) C.civ., vânzătorul este de drept obligat să îl garanteze pe cumpărător împotriva evicțiunii. (Tribunalul Galați, Decizia civilă nr. 131 din 1 februarie 2018, definitivă)1

With Marice Hauriou, in France, public law goes into the modern age. By his style, by the number and complexity of the themes he approached as well as by their exhaustiveness, this founding father of French administrative law – as we know it today – leaves behind a legal literature that, up to him, has only been able to provide sterile and purely descriptive commentaries of normative acts, modest works belonging to those that the modern history of public law labelled as of glossary or repertory writers. Hauriou is the one who, for the first time in the history of French administrative law, confers it the terminological and ideological substance for which it is highly appreciated by public law specialists today. Among the major themes that Professor Hauriou has approached in his work, the following are still outstanding, due to the accuracy and relevance of the analyses surrounding them, such as: – the administrative regime and the administrative function; – the institution and the institutional phenomenon; – the legal persons of public law, the public establishments and the establishments of public utility; – the public administration; – the public interest and the administrative management; – the public service; – the civil service and the civil servant; – the public property and the public domain; – the self-executing decisions or the unilateral administrative act; the administrative contract; – the administrative litigations; – the acts of government; – the discretionary power of the public administration; – the patrimonial liability for the public administration’s illicit acts; – the administrative police. Most of these themes have been systematically addressed by Hauriou, either by reference to the ideological foundation represented by the „public power”, or in relation to the notion of corporate institution, or in connection with the fact that administrative law groups rules with a derogatory nature from the rules of civil law, and legal persons under public law called upon to carry out the administrative function of the State are endowed with exorbitant prerogatives, the exercice of their duties being likely to result in a restriction of the freedom or the property of individuals. Surely, this risk – far from being totally eliminated – can be diminished, but only when individuals have effective tools to fight against abuses by executive authorities. According to Hauriou, an important place among these instruments is occupied by the so-called judicial review on abuse of power, a type of judicial action aiming at the annulment of unlawful administrative acts.

Information technology changed the way we relate to information as any data posted on the Internet can remain accessible indefinitely. On the one hand this ease of access undoubtedly was beneficial for the freedom of expression and information, but on the other hand the fundamental right to privacy of natural persons seems under threat in the absence of an adequate legal mechanism that would ensure that their past will not haunt them ad vitam aeternam. Last year, the French Council of State has requested the European Court of Justice (ECJ) for a preliminary ruling on the territorial scope of the right to be digitally forgotten. Although, since the Google Spain case, EU citizens enjoy an online right to be forgotten, its territorial application is yet to be determined. As such, this paper discusses the Opinion of the Advocate General in the Google Case (C-507/17), opinion which could offer a glimpse into the future ruling of the ECJ on this matter. In our analysis, we will also show the reasons why the ECJ’s decision is only a step in defining the right to digital oblivion, not at all an end point.

The present study aims at analyzing the new legal provisions regarding the country’s minimum gross salary guaranteed in payment. Recently, through a series of normative acts, the legislator renounced the old approach to the regulation of the minimum gross national salary guaranteed in payment, setting minimum differentiated salaries for certain categories of employees. Thus, employees with higher education and those with a minimum length of work will have a higher level of salary compared to the minimum gross salary guaranteed in payment. Moreover, the legislator set a higher threshold for the minimum wage in the construction sector, which benefits the employees of this sector of activity. This change of optics requires an analysis of its legality and timeliness. In order to outline the conclusions, there will be analyzed the internal sources, the provisions of ILO Convention No 131/1970 concerning Minimum wage fixing, with special reference to developing countries, and similar provisions in the field of minimum wage in different states.

The law provides that all declared claims will be subject to the verification procedure, with the exception of claims established by enforceable court judgments and enforceable arbitral awards, as well as budgetary claims resulting from an uncontested enforcement title within the time limits provided by special laws. In case the court judgments or arbitral awards are annulled, quashed or modified in the means of appeal, the judicial administrator/judicial liquidator will restore the table of claims accordingly. In case the court, by annulling or quashing the judgment, does not settle also the merits of the case, the judicial administrator or the judicial liquidator will proceed to the verification of that claim, by notifying the creditors in the event of total or partial non-inclusion of the claim, the creditors having, against the measure of the practitioner, in the Bulletin of Insolvency Procedures the extract of the report of the judicial administrator or of the judicial liquidator in which that measure is described. The judicial administrator will proceed immediately to the verification of each application and of accompanying documents and will conduct a thorough investigation to determine the legitimacy, the exact value and priority of each claim. For this purpose, the insolvent practitioner has the right to request explanations from the debtor, will be able to discuss with each debtor, requesting additional information and documents, if he considers it necessary. The regulation included in paragraph (2) of Article 106 of the Insolvency Code has an absolute novelty character, because until the appearance of the Law No 85/2014 the judicial administrator/judicial liquidator did not have the right to establish that the extinctive prescription of the claim has arisen. This is provided that, in the conception of the new Civil Code, the prescription can only be invoked by the one in whose favour it runs. Therefore, if the insolvent practitioner will appreciate that for the amount of money declared by a creditor within the procedure the extinctive prescription has arisen, he will notify the creditor in that regard, without further checks on the pretended claim, the legislator considering that in this case it acts, although it is a body applying the procedure, as a representative of the insolvent debtor, obviously with the possibility of the creditor interested in challenging the measure to the syndic-judge. As a result of the verifications made, the judicial administrator/liquidator will draw up and register with the court a preliminary table containing all claims against the debtor’s estate, overdue or not, under condition or under dispute, arisen before the date of the opening procedure. In the table there will be mentioned both the amount requested by the creditor and the amount accepted and the priority rank, and in the case of the creditor undergoing the insolvency procedure the appointed judicial administrator/judicial liquidator will also be indicated. In the case of the simplified procedure, in this table the claims arisen after the opening of the procedure and until the moment of going into bankruptcy will be recorded. In the case of claims which benefit from a preference cause, there will be presented the title from which the right of preference arises, its rank and, if applicable, the reasons for which the claims have been partially recorded in the table or have been removed. The claims that are benefiting from a preference case shall be entered in the preliminary table with the full value, indicating at the same time the title from which the preference right arises, their rank and, if applicable, the reasons for which the claims were only partially recorded in the table or have been removed, and in the final table, up to the market value of the guarantee determined by assessment, ordered by the judicial administrator or by the judicial liquidator, by an authorized assessor. However, Article 122 (1) of the Framework-Law makes the drawing up of the final table of claims conditional upon the handover by the assessor of the guarantee assessment report. In case the capitalization of the assets over which the preferential cause takes effect will be made at a price higher than the amount entered in the final consolidated table, the positive difference will be assigned to the guaranteed creditor, even if a part of his claim had been recorded as a secured debt, until covering the main claim and the accessories that will be calculated according to the documents from which the claim arises, until the date of the capitalization of assets. This provision will also be applied in case of failure of the reorganization plan and the sale of the asset in the insolvency procedure.

The information about the patient’s state of health, diagnosis, treatment, personal data is confidential even after his death. There is an obligation of the physician to keep the professional secrecy, which is opposable to the patient’s family members and which is maintained even after the person has ceased to be his patient or is deceased. The present study discusses aspects on the impossibility of proving a possible malpractice case, in the absence of the access of the patient’s family to medical documents, medical observations, medical sheets, and medical treatment applied to the patient deceased in the meantime. We have in view that Article 21 of the Law No 46/2003 on patient’s rights stipulates that all information regarding the patient’s condition, the results of the investigations, the diagnosis, the prognosis, the treatment, the personal data are confidential even after his death, and Article 22 of the same normative act provides that confidential information may be provided only if the patient gives his explicit consent or if the law expressly requires so. Similarly, Article 18 of the Code of Professional Deontology states that the physician’s obligation to keep professional secrecy is also opposableagainst the members of the family of that person concerned and such an obligation to preserve the professional secrecy persists also after the person in question ceased to be a his patient or deceased. Starting from these provisions, it is raised the question of the impossibility to prove a possible malpractice case, in the absence of the access of the patient’s family to medical documents, observation sheets and post-surgery treatment of the patient who deceased in the meantime.

În articolul de față ne propunem să prezentăm câteva considerații critice asupra Deciziei nr. 685/2018 a Curții Constituționale pronunțate recent1. Trebuie să precizăm, în acest sens, că nu împărtășim soluția asupra admisibilității cererii de constatare a existenței unui conflict juridic de natură constituțională, dar suntem parțial de acord cu soluția pe fond și nu împărtășim unele considerații din motivarea instanței constituționale. În ceea ce privește admisibilitatea cererii primului-ministru, suntem de părere că nu ne aflăm în prezența unui conflict de natură constituțională, ci a unuia de natură legală. Așa cum Curtea însăși a definit conflictul juridic de natură constituțională în deciziile sale anterioare2 și cum o reamintește și în prezenta decizie, este necesar ca autoritatea „pârâtă” să-și aroge competențe care îi aparțin autorității „reclamante” sau alteia sau să refuze să-și exercite propriile atribuții, iar aceasta să ducă la blocaje instituționale3; în fine, în prezenta decizie apare pentru prima dată și cerința ca blocajul să nu poată fi înlăturat în alt mod4.

În luna martie 2010 doamna A.C.L. a achiziționat un autoturism marca Mercedes Benz 350 SL, din sumele primite donație de la părinții ei. Începând cu luna iulie a anului 20101, impozitul2 pentru mijloacele de transport3 s-a majorat semnificativ, dublându-și valoarea pentru autoturismele cu capacitate cilindrică mai mare de 3001 cm³. Autoturismul în cauză având o capacitate cilindrică de 3724 cm³, valoarea anuală a impozitului depășea 5 500 lei. Cum acesta depășea posibilitățile financiare ale doamnei A.C.L., aceasta a hotărât să înstrăineze autovehiculul, postând anunțuri pe site-urile de vânzări, precum și pe geamul lateral al autoturismului. În pofida acestor demersuri, nu a reușit să vândă autovehiculul în România din cauza cuantumului ridicat al impozitului anual, acumulând în continuare datorii la bugetul local. În cursul anului 2012 doamna A.C.L. s-a deplasat în Germania și la data de 27 noiembrie 2012 a reușit să înstrăineze autovehiculul către o societate din acest stat, al cărei obiect de activitate era comerțul cu autovehicule.

Legal liability is a relation established by law, by legal rule, between the author of the infringement of legal rule and the state, represented by the officials of the authority, which may be the courts, public servants or other officials of the public power. The contents of this relation is complex, being composed essentially of the right of the state, as a representative of society, to apply the sanctions provided by the legal rules to the persons which are in breach of the legal provisions and the obligation of those persons to be subject to legal penalties, in order to restore the legal order.

In this study, the author analyzes the change occurred with regard to the response to the statement of defence, by point 27 of the Law No 310/2018 amending and supplementing the Law No 134/2010 on the Civil Procedure Code, as well as for amending and supplementing other normative acts. In the old Civil Procedure Code this act of procedure was not regulated, but it was customary to submit a response to the statement of defence. The author presents how the act of procedure called the „response to the statement of defence” has been regulated, being introduced by the Law No 134/2010 on the Civil Procedure Code. Initially, in Article 201 (2) of the Civil Procedure Code, it was provided the obligativity of the applicant to submit the response to the statement of defence, after having communicated it. This obligation postponed the setting of the first trial term. The obligation to formulate a response to the statement of defence was also provided in Article 471 (6) of the Civil Procedure Code, for the settlement of the means of appeal, as well as in Article 490 (2) of the Civil Procedure Code, for the settlement of the extraordinary remedy of the review. As regards the appeal and the review, the provisions of the Civil Procedure Code have not entered into force, but it has been applied the intermediary regime regulated by Article XV (4), for the appeal, and Article XVII (3), for the review, of the Law No 2/2013 on some measures to relieve the courts, as well as to prepare for the implementation of the Law No 134/2010. By point 27 of the Law No 310/2018 the facultative character of the response to the statement of defence was enshrined. This amendment has also been extended to the case of settlement of the appeal and of the review. The author presents the arguments for which she considers that the legislator should have abandoned this procedural act, being sufficient to express the position of the applicant by way of the request for summons and of the defendant by way of statement of defence. The conclusions of the study are reflected in the opinion that the response to the statement of defence is not justified in the civil trial, creating an imbalance between the parties, the applicant being able to justify his claims both by the request for summons and by the response to the statement of defence, while the defendant has available only the statement of defence. Even if by abandoning the binding character of the response to the statement of defence, the fixing of the first term, respectively that for appeal and for review, takes place more quickly, the author proposes to fully abandon this act of procedure and considers that the legislator should have repealed the response to the statement of defence.