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Law no. 287/2009 regarding the Civil Code introduces in the matter of successoral option many new items here and there, reconfiguring it. In this study, we propose to examine the general aspects that the successoral option involves in the light of the provisions of the new Civil Code, to highlight the new items brought by this legislative instrument in the matter subject to the examination et to assess their progressive nature. -
According to the monist conception regarding the private law, the current Civil Code (Law no. 287/2009) inserted in the scope of its regulation the trade, including bank agreements – the current bank account, the bank deposit, the credit facility, the rental of safety deposit box for valuables. The specificity of the scope, mainly, „the publicity” and the reiterative nature of banking operations, left the essential, not only the technical aspects, within the scope of special regulations – prevalent, numerous and difficult to be codified. This study reveals the items set up by the current Civil Code regarding the typically bank agreements, the more so as no substantial right of them has existed until the adoption of this legislative instrument.
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The judicial individualization of the sentence shall be carried out by a complex operation using all those individualization criteria set forth by law (general and special criteria); the need for taking into consideration all the grounds for sentence modification is included within these criteria, as well. Drawn by this need, the Romanian Criminal Code into force (since 1968) contains regulations regarding the manner in which the various grounds for sentence modification must be enforced, when they concur, regulations contained in the provisions of art. 80. Likewise, the new Romanian Criminal Code contains such regulations in art. 79. In this study, the authors have emphasized several systems of sentence determination in case of the concurrence between the grounds for sentence modification. Both the Criminal Code into force and the new Criminal Code adopted an objective criterion concerning the manner in which the various grounds for sentence modification must be enforced, being sensitive to multiple interpretations and contradictory solutions. The Romanian Criminal Code of 2004 – abrogated, before becoming effective, through the new Criminal Code – which forwarded a system based upon a subjective criterion, by granting the judge the freedom to assess the predominance (prevalence) of the grounds for sentence modification and to give them the due legal effect. From the point of view of the authors of the study, this system seems to be more adequate to settle the problems raised by the concurrence between the grounds for sentence modification.
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The author points out that article 77 of the new Criminal Code reassessed the circumstances having the ability to emphasize a high degree of social danger of the committed offence and of the offender. Thus, the scope of the circumstance relates to the perpetration of the offence by a person being in a preordinate intoxicated condition which may be generated besides the alcohol, by other psychoactive substances, whose consumption represents a breach of a legal or medical interdiction. The aggravation of the criminal liability has been waived in case the offence is committed for infamous reasons, as the content of this circumstance has never been precisely determined by the doctrine and jurisprudence. A new aggravating circumstance has been introduced consisting in the perpetration of the offence by taking advantage of the obvious vulnerable condition of the injured person due to his/her age, health condition, disability of due to some other grounds, as such a circumstance emphasizes a high level of gravity of the offence, but also a degree of increased injuriousness of the offender. Another novelty item is represented by the waiver to the category of judicial aggravating circumstances, because the imprecise manner in which they are regulated would be situated at the edge limit of the principle of the predictable nature of law.
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The forgery of credit titles or payment instruments represents an offence prejudicing the financial stability of the monetary system. In this article, the author deals with the matter of the scope of the terms such as credit title and payment instrument, examining the concrete ways of committing the offence in the judicial practice of the courts, as well. The author states that close attention should have been paid to explain the amendment of constituent items of the offence in the explanatory statement accompanying the new Criminal Code, in order to avoid the differences related to interpretation in the matter and in the judicial practice.
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In this study has been underlined that the right to property is a fundamental component of Human Rights, of the European and International Rights of every human being. Have been put forward the main scientific contributions in the European Culture of Human Rights and has been demonstrated in which manner the right to property is guaranteed in the European practice and in Romania after 1989. It is underlined that the normal life of every human being is not possible in the absence of those guarantees that his right to property is fully respected. -
The author considers that article 288 paragraph (1) of the National Education Law no. 1/2011 (text according to which the didactic activities exceeding a didactic workload are remunerated for each hour worked, and for the tenured didactic staff – in the higher education system – the maximum number of paid hours in the regime of payment per hour, no matter the educational establishment where the respective hours are worked, cannot exceed the minimum didactic workload) breaches the provisions of the Constitution of Romania, even though the Constitutional Court adjudicated otherwise under the decision no. 1090/2011. The basic argument forwarded by the author is that, in case of certain similar regulations contained in the contents of certain previous similar legislative instruments (Law no. 88/1993 and Law no. 128/1997), the same Constitutional Court, according to two decisions (no. 114/1994 and no. 30/1998) ruled otherwise than it had ruled in 2011 (that is, it stated that those decisions were unconstitutional).
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As a result of the substance amendments brought to the Labor Code (Law no. 53/2003) according to Law no. 40/2011, followed in a short period of time, by the enactment of Law no. 62/2011 of social dialogue, certain contradictions were generated between the Labor Code (as republished on 18 May 2011) and Law no. 62/2011, generating a series of controversies in the Romanian judicial doctrine. Some of these controversies are reexamined by the author of this study who, after debating them, reaches certain interesting conclusions.
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In this study, the author analyzes the essential changes that the year 2011 has brought with respect to the dismissal of the trade union leader under Law no. 40/2011 (amending and supplementing the Labour Code), and also under Law no. 62/2011 regarding social dialogue. At the end of the analysis, the author concludes that these changes are both in accordance with the Romanian Constitution, as well as with the applicable European regulations.
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In this study the author debates – in the light of the current Code of Civil Procedure and of the new Code of Civil Procedure, published in 2010, but not yet enacted, if in the actions regulated by Law no. 18/1991 (as republished) there must be or not be introduced, even ex officio, all the persons entitled to lodge the applications for the re-enactment of the ownership right over a certain given land fund.
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At the crossroads of general regulations concerning both public and private property in the newly enacted Civil code, of specific rules concerning the concession of public assets or the exercise by the local public authorities of their powers relating to the administration of public and private domain of the administrative-territorial units as well as of even more specific provisions in the public-private partnership law, the legal regime of assets involved in public-private partnership projects requires detailed attention. Designing and understanding such legal structure combining old and new regulation may contribute to the sucessful application of regulations concerning public-private partnerships.
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The minor traffic offence is one of the most serious offences, being included in the field of judicial cooperation in all European legislative instruments. The study describes a general and critical examination of the legal provisions into force which, according to the author, do not guarantee an adequate judicial protection to minor persons being the victims of the offence. By publishing it, the research of this very important field and at the same time in the pipeline at the level of the member states of the European Union, is continued. The research may be useful both to practitioners, and to ideologists in the field of criminal and criminal proceedings law. The essential contribution of the study is limited to the critical remarks exposed and to the concrete proposals on amending and supplementing the special law, especially from the point of view of the indictment of other offences or of establishing the obligation to provide defense to the minor person who is victim, under the sanction of absolute nullity.
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The value competence in the criminal matter represents a form of material competence, whose non-observance is sanctioned by absolute nullity. In this article the author describes theoretical and practical aspects of competence depending on the value criterion and carries out a comparative examination between the current and the future criminal and criminal proceedings regulation of the phrase of „very serious consequences”. Likewise, the author identifies possible solutions to unify the judicial practice, considering that the requirement of the predictable nature of law and the principle of judicial equal treatment require the establishment of the competence depending on its value by reference to the time of occurrence of the material damage due to offence and to its real value.
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Law no. 202/2010 on certain measures to accelerate lawsuits’ settlement introduces into the Criminal Code, by art. 741 of the Criminal Code, a series of provisions in favor of the charged person or of the defendant who has committed certain economic offences and covered the damage in full, until the settlement of the cause of action in the court of the first instance. The author considers that these provisions could be construed as certain legal and real attenuating circumstances, however having a special regime, which often generates difficulties related to the interpretation and enforcement in the courts’ practice. However deemed as unconstitutional in May 2011, the provisions of the above-mentioned article are being enforced regarding the offences committed until its expiry date, pursuant to mitior lex principle.
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The new regulation in the civil matter, as represented by Law no. 287/2009 on the Civil Code, adapts quasi-totally the institution of the acceptance of the inheritance. In this context, this study intends to examine the problem of the acceptance of the inheritance, a valence of the law on succession option, in all the matters it comprises, to reveal the novelties brought by Law no. 287/2009 in this matter and to assess their usefulness and opportunity. -
The rental of safe deposit boxes shall be regulated by the Civil Code (Law no. 287/2009) within the banking agreements, together with the current bank account, deposit and credit facility. The above mentioned regulation makes obvious a special agreement, customized by its content, different from the civil deposit and from the rental. Being concerned with the protection of the client’s valuable goods, the legislator allocates a larger space to the access to the safe deposit box – voluntarily or in a forced way (art. 2197-2198). This study examines the rental of the safe deposit boxes according to the Civil Code in the classical way of approaching the agreements.
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In the new context of legislation, the procedure of administrating evidence by lawyers or by legal advisers may represent an alternative to the classical method of administration by the court of evidence, increasing the chances of solving the dispute amicably. The procedure of administrating the evidence by lawyers or by legal advisers will be held according to a program approved by the court, in which the deadlines are set for administrating the evidence, taking into account the volume and complexity of them.
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The new Criminal Code, adopted by Law no. 286/2009, sanctions the fact of the clerk who claims or gets sexual favors, in order to accomplish an action in compliance with his job duties, or opposed to them, or standing on or taking advantage of his authority or superiority over the victim, arising from the title he holds.
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This study examines preliminarily the documents upon which the Court of Accounts concretizes its activity, and it analyses further in a detailed manner the remedies at law against these documents, by emphasizing the non-unitary case law in the matter, namely: if the law court is competent in the first instance (the Administrative and Fiscal Section), and the Court of Appeal is competent in the second appeal (the Administrative and Fiscal Section) or, on the contrary, the Court of Appeal (the Administrative and Fiscal Section) is competent in the first instance, and the competence shall belong to the High Court of Cassation and Justice in the second appeal (the Administrative and Fiscal Section). Based upon a comprehensive analysis the authoress points out that the last solution shall be legal.
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The mechanism of constitutional review plays an important role in the development of the normative system. It prevents the Parliament and the Government to adopt unconstitutional laws or ordinances and, at the same time, it stimulates them to edict normative regulations in accordance with the provisions of the Constitution. In what concerns the legislative omissions, the Constitutional Court of Romania is not competent to modify or to supplement the provisions under review, following the classical theory of ‘negative legislator’. Despite of a vast case-law that reflects this rule of conduct, a new and more flexible approach appears to be more effective in correcting the constitutional deficiencies. Pointing out the lack of constitutionality due to certain legislative omissions is what brings the Constitutional Court of Romania closer to the other European jurisdictions of constitutional review.
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Romania, by adhering in July 1961, to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted in New-York as at 10 June 1958, on that occasion formulated a reserve, in the sense that our country shall enforce the Convention „only to disputes arising from lawful contractual or non-contractual relations being deemed as commercial by the national law”. Since as at the 1st October 2011 the current Romanian Civil Code entered into force (Law no. 287/2009, as republished as at 15 July 2011), as well as Law no. 71/2011 for the enforcement of the current Civil Code, both of them having a monist character (without considering the commercial law as an autonomous discipline of law), but recognizing further the category of merchants (a component of the professionals’ category) the authoress considers that, on one hand, the above mentioned reserve shall be construed as referring exclusively to the legal relations among merchants, and, on the other hand, as opposed to what the law is, that Romania is about to waive the concerned reserve at issue in the future.
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Trying to integrate the precautionary principle in the law of torts is a challenge that took the author back to the origins of tort law: responsibility and its etymological, philosophical and juridical roots. The findings of this intellectual endeavor envisage the expansion of tort law towards new dimensions of time, space and human relationships. With a shift of perspective, from the past towards the future, tort law reinvents itself by facing uncertainty, by reforming its mathematics and rediscovering its guiding principles. The goal of this study is to establish the principles and conditions of preventive tort law, the civilian tort law expression of the preventive and precautionary principles.
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In this study the author examines the recent changes to the legal status of free movement on the Romanian territory of the citizens of European Union Member States, European Economic Area and of the Swiss Confederation citizens through Law no. 80/2011, checking also their compatibility with the provisions of the Directive no. 2004/38/CE on free movement and residence of the EU citizens and of the family members on the territory of the member states and, when it is required, the way of reporting them to the legal status of the foreigners in Romania.
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The diplomatic activity of the states may have a highly positive part in the normal course of the development of international relationships, so that certain disputes or other negative consequences may be prevented in fields of common interest, such as: the observance of the right to self-determination of the states, the limitation of environmental pollution, the correct usage of natural resources, the fight against terrorism or the enforcement of international treaties.
