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The study briefly analyzes the status of the deputy mayor in relation to the status of the public administrator in order to debate a possible conflict between them. The similarities and differences between these two functions are highlighted. The delegation of attributions by the mayor is discussed from the perspective of the possibility for the mayor to appoint like substitute the public administrator during his vacation. There are three situations provided by law in which the deputy mayor becomes the legal substitute of the mayor presented in detail in the study: the vacancy of the position of mayor; the suspension from office of the mayor and the cases of impossibility to exercise the mandate by the mayor. In any other situation, there is no legal provision for the deputy mayor to become the legal substitute for the mayor. Two issues need to be debated in this context, namely: identification of the status of the public administrator in the public administration staff and like a consequence, the legal nature of the management contract concluded by public administrator with the mayor. Finally, it is argued the impossibility of suspending the addendum to the management contract, under the conditions of Article 14 of the Law on Administrative Litigation. -
The error of random distribution of a civil case refers, in the matter of means of appeal, unlike the scenarios in which it is necessary to qualify or requalify a means of appeal, only the situation where the will of the party exercising the means of appeal is disregarded, respectively it is not registered on the role of the court of judicial control and, subsequently, randomly distributed the means of appeal exercised by the party, but another means of appeal, due to a genuine error occurred at the time of the registration of the means of appeal or, as sometimes happens in the judicial practice, because at the time of the registration of the means of appeal it is assessed that the party did not exercise the means of appeal provided by law, thus proceeding to the registration of the means of appeal provided by law, which should have been exercised by the party, and not of the means of appeal that was actually exercised.
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This article examines the fiduciary property through a historical and comparative analysis of the legislation and doctrine of Québec, France and Romania. The contemporary fiducia ought not to be confused for the Roman fiducia, whose name it borrowed. As a result of the reception of the Anglo-American trust in the mixed legal system of the Canadian province of Québec, the fiducia has been the subject of subsequent legal transplants into the continental tradition. The Romanian legislator, inspired by its French counterpart, took over the restrictions brought to the fiducia in said legal system. In the matter of real rights, this legislative option also meant the rejection of the doctrine of an ownerless patrimony, an innovation of the legal system of Québec, in search of a continental instrument to replace the division of title between the legal holder (trustee) and the equitable one (beneficiary), as enshrined in the Common Law tradition. Commenting on the solutions proposed within French legal literature (including the classification as a method of ownership or even as a result of dismemberment), the author argues that only a combination of them may fully explain the mechanism of the fiduciary ownership. In essence, the fiduciary owner acts like a true owner, but by virtue of a title held under a resolutive condition, while the beneficiary enjoys a virtuality of law in his capacity as an owner under a suspensive condition. However, the constraints to which the right of ownership transferred to the trustee is subject, in terms of its exclusivity and perpetuity, may be explained by the fiducia contract itself, the effects of which are assimilated to the conventional limitation operated, for example, through an inalienability clause. In other words, the fiduciary owner may be considered an owner under a resolutive condition, yet he remains subject to the conventional limitations brought upon by the very nature of the fiduciary operation.
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Located within Chapter VI of the Criminal Code that criminalizes criminal offences against the person’s freedom, the criminal offence of threat provided by Article 206 appears on the background of the protection of the mental freedom of persons. The thorough analysis of the crime will reveal some aspects regarding different theories of interpretation of the law that can be objectified also in practical situations. Also, the interpretation of the criminal offence highlights certain aspects regarding the fear of the person, the manner of committing the crime, the threat of a harmful act, the correlation with the crime of outrage and judicial outrage, as well as some differences from the crime of blackmail. Therefore, in the framework of highlighting some opinions or observations on them, it can be delimited the offence of threat much easier compared to other offences, but it can also constitute a useful legal instrument during the stages of criminal liability of the offender, as well as for the improvement of the text of law by the legislator.
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This study aims to analyse the meaning of the term „reasonable grounds” enshrined in paragraph (2) of Article 11 of Law No 554/2004 on Administrative Proceedings. Neither the relevant framework law, nor any other regulation defines this concept, which creates problems in practice. The tendency in case law is to consider that „reasonable grounds” must be understood as a situation beyond the person’s control, insurmountable, in case of force majeure or fortuitous event. The present study seeks to correct this view and to promote the interpretation that the notion can be understood both in the sense mentioned above and in one where the parties use administrative methods to prevent a dispute from arising.
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In the case of the debate by the Romanian notary public of a succession with an element of extraneity, in which the registered shares of a limited liability company are subject to succession, the successional devolution will be carried out according to the law applicable to the succession (lex successionis). The point of connection for the lex successionis is the last habitual residence of the natural person, but this person can choose the law applicable to the succession, his national law. According to the lex successionis, there will be established the heirs, but they will not automatically become associates in the limited liability company. The acquisition of the status of associate will be carried out according to the provisions of the law governing the organic status of the legal person (lex societatis), being a matter which concerns the functioning of the company, not the transmission by succession of the registered shares, which operates anyway, but an effect of devolution. The two laws may belong to different national systems of law. In the case of the application of the Romanian law, we intended to find out possible controversial aspects, presenting the doctrinal interpretations or the judicial practice ones and even trying to formulate some proposals de lege ferenda. We also tried to make a comparison with the material French corporate law, for the hypothesis in which de cujus would have registered shares in a limited liability company of French nationality.
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The system of protection of human rights and fundamental freedoms introduced by the European Convention on Human Rights still raises questions about the interpretation and application of its provisions. In this study, we will focus on the problems concerning: EU accession to the European Convention on Human Rights, the relationship between the CJEU and the ECHR, and we will detail the decision of the ECJ Opinion 2/13 on the draft agreement for EU accession to the European Convention on Human Rights. By the present study we intend to analyze the implications of the future EU accession to the European Convention on Human Rights, given the long history of the protection of fundamental rights. We will start with the way in which the protection of fundamental rights is seen at international level, and then we will analyze how the EU intends to achieve the protection of fundamental human rights. We will bring into discussion the main normative acts in the field, the way in which the collaboration between the CJEU and the ECHR is carried out, pointing out the issue of the primacy of European law over the national one. The study aims to analyze the general concepts recognized in the international law regarding the creation of a better structured legal framework regarding the protection of fundamental human rights and the issue of the primacy of EU law regarding the future accession to the Convention, in particular in relation to the Negative Opinion 2/13 of the CJEU. We will analyze the most important decisions of the ECHR and the CJEU in order to corroborate the theoretical elements with the practical ones. As concerns the research methods, mainly the comparative and the quantitative method have been used, with elements that make reference to the method of sociological and historical interpretation. From the point of view of the research results, it was concluded that, from a doctrinal point of view, there are two sides: the supporters of EU accession to the European Convention on Human Rights, in the context of receiving EU legal personality, but also of inserting Article 6 TEU which provides the obligativity that EU becomes a party to the Convention, and those who oppose, in particular the CJEU, as well as the practitioners and the doctrinaires of the European law who invoke the primacy of European law over national law, but also the issue of organizing the European legal system, by specifying that the CJEU would fall under the jurisdiction of the ECHR, and the ECHR, in its turn, would intervene in the process of „constitutional” development of the EU.
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The study analyzes the current account contract as an effective technique for simplifying long-term contractual relations, in the context of a large business volume, with its lending function. The legal definition of the contract has revealed that this contract performs, through the novation mechanism, a function integrating receivables coming from other contracts and operations of the parties in the current account, and the settlement of accounts is carried out through the offset system. In addressing the legal characters of the current account contract emphasis has been placed on its intuitu personae character and arguments have been brought for combating the thesis of the ancillary character of this contract in the relation to the contracts and operations generating receivables recorded in the account. The effects of recording of the receivables in account (of extension of maturity and of unavailability) and the category of receivables incompatible with this recording in account, as well as the legal consequences of closing the account before deadline, which pave the way for the execution of the credit balance, have also been analyzed. The effects of the recording of receivables in the account have also been analyzed from a fiscal perspective, related to the application of VAT and of the profit tax. The current account was also analyzed in the context of the insolvency procedure, as a means of maximizing the debtor’s assets and of its beneficial effects in the process of judicial reorganization. The main effects of the current account contract have been discussed under the translative aspect of the property right, marked by the moment of recording the receivable in the account, under the aspect of novation, as a legal instrument of integration in the account of the receivable, generated by the original contract or by the operation performed between parties from the perspective of offsetting the two amounts of receivables, from which the credit balance results, as a liquid and exigible receivable, susceptible to execution. The examination of the side effects of the current account contract refers to the interest applied to each receivable registered in the account and to the credit balance, as well as to the commissions and expenses related to the legal operations generating the receivables recorded in the account. Regarding the closing of the account, the two hypotheses have been analyzed, the one related to the final closing of the account, which coincides with the termination of the current account contract, and the one regarding the periodical closing, as well as the legal regime of the credit balance, resulting from the offset within each of the two hypotheses. The aspects regarding the presumption of approval of the credit balance, of its contestation after approval, in connection with the material errors and the legal action for the rectification of these errors have not been omitted either. Finally, there have been discussed the modalities of termination of the current account contract on the deadline and by denunciation, in respect of the contracts concluded for an indefinite period.
