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Potrivit art. 342 alin. (6) C.pen., constituie infracțiune și se pedepsește cu închisoare de la 6 luni la 3 ani nedepunerea armei și a muniției la un armurier autorizat în termen de 10 zile de la expirarea perioadei de valabilitate a permisului de armă. Totodată, conform art. 112 alin. (1) lit. f) C.pen., bunurile a căror deținere este interzisă de legea penală sunt supuse confiscării speciale (cu notă parțial aprobativă). În cazul faptei prevăzute în art. 342 alin. (6) C.pen., cu privire la care s-a dispus o soluție de clasare întemeiată pe dispozițiile art. 16 alin. (1) lit. b) teza a II-a C.pr.pen., arma și muniția intră sub incidența confiscării speciale, în temeiul art. 112 alin. (1) lit. f) C.pen., în procedura reglementată de art. 5491 C.pr.pen., în ipoteza în care făptuitorul nu a depus arma și muniția la un armurier autorizat în termen de 10 zile de la expirarea perioadei de valabilitate a permisului de armă. (Înalta Curte de Casație și Justiție, Completul competent să judece recursul în interesul legii, Decizia nr. 10/2019). -
By the present study the author analyzes in a critical manner the modality of regulation of the mechanism of the compensatory review introduced by the provisions of the Law No 169/2017, which has amended the Law No 254/2013 on the execution of custodial sentences and of measures involving deprivation of liberty ordered by the judicial bodies during criminal trial. In this respect there are examined the case law of the European Court of Human Rights in the matter of the accommodation of detained persons and the premises that were the basis for the adoption of this regulation. Thus, it is noted that the legislator has set a higher standard than the one imposed by the European Court of Human Rights, which has ruled that, under certain conditions (the presence of ventilation, lighting and privacy, etc.), the accommodation in a detention space that ensures an area of between three and four square meters for each detainee is in accordance with Article 3 of the European Convention on human rights and fundamental freedoms. In addition, it is shown that the legislator did not insert in the national law the whole legal mechanism emphasized in the case law of the European Court of Human Rights, where a preventive means of appeal has been introduced, allowing the detained persons to file complaints to a judicial authority with regard to the material conditions of detention, as well as a compensatory means of appeal, which provides a reparation for the persons who have already been through a detention contrary to the Convention. Likewise, the author analyzes in a theoretical, but mostly practical manner, the modality to apply the compensatory review mechanism depending on the processual phase in which it is analysed its incidence, as well as the effects produced at the level of the institutions of substantive criminal law, making reference to the binding decisions pronounced by the High Court of Cassation and Justice and to the national case law.
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The study analyzes how it evolved the competence of the court of law to solve the review in the civil trial from the initial version of the Law No 134/2010 on the Civil Procedure Code to the amendment brought by the Law No 310/2018 for amending and supplementing the Law No 134/2010 on the Civil Procedure Code, as well as for the amendment and supplementation of other normative acts. The result of the study is reflected in the opinion according to which the court of law competent to solve the review in the civil trial had to remain, as a rule, the High Court of Cassation and Justice. Thus it would have been made a unitary interpretation and the contradictory solutions would have been avoided. Although in the versions of the Law No 134/2010 and until the adoption of the Law No 310/2018 the purpose of the review was to subject to the High Court of Cassation and Justice the examination, under the terms of the law, of the conformity of the contested judgment with the applicable rules of law, the supreme court has diverted this purpose, by admitting the exception of its material incompetence and declining to solve the reviews.
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Every 3 months, calculated from the beginning of the liquidation, the judicial liquidator must submit to the creditors’ committee a report on the funds obtained from liquidation and from the collection of claims, as well as a distribution plan between the creditors, if necessary. The report and the plan shall be recorded at the registry of the tribunal and shall be published in the Bulletin of Insolvency Procedures. The report shall also provide the payment of his fee and of the other expenses provided in Article 159 (1) point 1 or of Article 161 point 1 of the Law No 85/2014, as the case may be. The report on the funds obtained from liquidation and from the collection of claims shall include, at least, the following: the balance in the liquidation account after the last distribution; the collections made by the judicial liquidator from the sale of each asset and from the recovery of the claims; the amount of the interests or of other incomes benefiting to the debtors’ fortune, as a result of keeping the undistributed amounts in bank accounts or by administering the assets existing in the debtor’s fortune; the total of the cash amounts existing in the liquidation account.
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The present study is dedicated to the approach from theoretical and practical perspective of the problem of instigation to commit an offence or to continue to commit an offence for the purpose of obtaining evidence in the context of using special investigative techniques. The problems presented are based on an ex post facto analysis, with applied character, by outlining some concrete hypotheses. There are highlighted aspects elaborated by the European Court of Human Rights by way of case law, but also relevant aspects from the national case law of Romania in order to identify the criteria for establishing the illegal nature of the activities of the criminal investigation bodies necessary to collect and provide evidence in the criminal trial. Likewise, there are presented and analyzed the conditions retained by the Strasbourg Court necessary to be fulfilled so that the activities of the state bodies do not exceed the scope of loyalty of administration of evidence. In addition, an attempt is made to delimit the instigation to commit offences from the legal activity of the undercover investigators in the context in which it has been authorized the use of the special method of investigation of using undercover investigators or collaborators, provided by the Criminal Procedure Code.
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Încheierea definitivă pronunțată de către judecătorul de drepturi și libertăți de la Judecătoria Sighetu Marmației, în conformitate cu dispozițiile art. 4886 alin. (7) din C.pr.pen., ne oferă prilejul comentariului de față. În speță, la data de 22 ianuarie 2018, persoana vătămată (constituită parte civilă) P.J. a depus plângere prealabilă la Parchetul de pe lângă Judecătoria Sighetu Marmației, solicitând efectuarea de acte de urmărire penală față de făptuitorii B.I., B.M. și C.V. pentru săvârșirea infracțiunii de degradarea terenurilor agricole, prevăzută de art. 107 din Legea nr. 18/1991, Legea fondului funciar, actualizată, raportat la dispozițiile art. 253 alin. (1) din C.pen. În susținerea plângerii, a menționat că la data de 3 ianuarie 2018 făptuitorii au trecut de mai multe ori cu atelajele proprietate personală trase de câte 2 cai, încărcate peste capacitate, peste terenul de natură fâneață pe care îl deține, împrejurări în care, sub greutatea încărcăturii, copitele cailor de tracțiune și roțile atelajelor au creat urme adânci în solul puternic îmbibat de apele pluviale, terenul agricol fiind degradat pe o suprafață de 900 mp.
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A special category of workers is represented, pursuant to the European and national norms, by the professional maternal assistants. In accordance with Article 1 of the Government Decision No 679/2003, these are natural persons, legally certified, who ensure, through the activity they carry out at their home, the raising, care and education necessary for the harmonious development of the children they receive in placement or in their custody. Although maternal assistants carry out their activity under an individual employment contract (of a special nature), they do not benefit by all the rights in their fullness which the other workers have. Thus, they do not have the right, only restrictively and with permission, to weekly rest, days off or rest leave. This situation is justified by the superior interest of their mission, that of ensuring the raising, care and education of children, their integration without discriminations in the family of the assistants. This is the reason why the European Court of Justice (Grand Chamber) has ruled (in the Romanian Case C-147/17) that the activity of maternal assistant does not fall within the scope of Directive 2003/88.
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The subject of our study is, in essence, the successoral transmission, an institution present in all the works of successions and on which one might think that there are no more aspects with a relatively novelty degree. We are trying to show here, however, some of these aspects, resulting, in addition, that the whole matter of the right of inheritance, although it is a classic segment of the civil law, has, however, unexpected reserves of „freshness”, which urge to the research, which offers new perspectives of approach.
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The question of whether criminal liability can be engaged only in the case of the violation of a subjective right or whether it operates also when a simple legitimate interest is violated, without being enshrined as a subjective right, has always preoccupied the doctrine of civil law. The discussions were amplified on the background of the evolution of the law of the criminal civil liability, from a law oriented towards the sanctioning of the guilty perpetrator, to an indemnity law, increasingly inclined towards the interests of the victim who suffers from the unjust harming of his subjective rights, but also of the legitimate interests, those which, without being consecrated, cannot be tolerated by the legal order. The debate has become increasingly animated, in the context of the proliferation of claims that aspire to compensation, under the pressure of unprecedented diversification of human rights and fundamental freedoms, making traditional good morals increasingly relaxed. This explains the tendency of many modern codifications to include them in the broader concept of public order, as a component thereof. Even the French, known for their refusal, sometimes expressed manifestly, to adopt modern solutions, have agreed to reform their Civil Code, through the Ordinance on the reform of the contract law of 10 February 2016, by relating contractual freedom only to public order.
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The article presents the constitutional landmarks which justify the sanction of the absolute nullity of the violation of the provisions referring to the material competence and competence according to the person’s quality of the criminal investigation body and analyzes this nullity from the perspective of the processual and procedural documents that establish the sanction, which has the effect of resumption of the criminal prosecution by the competent body or the exclusion of some processual documents or probative procedures.
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The generation of public procurement directives1 adopted in 2014 supplemented the number of exclusion grounds from the contract award procedure, adding, inter alia, the hypothesis from Article 57 (4) (d): „where the contracting authority has sufficiently plausible indications to conclude2 that the economic operator has entered into agreements with other economic operators aimed at distorting competition”. The respective exclusion ground has been regulated in the public procurement directives as an optional ground, being however provided for the Member States the possibility to transpose it into national laws as a compulsory ground. This regulatory modality, which inexplicably restricts the scope of incidence only at the conclusion of agreements, although competition can be affected by other methods, and which allows different transpositions by the Member States, has led many doctrinaires to react critically to the prospect that such an important exclusion ground generate a relatively narrow and non-unitary practice at Union level.
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This paper aims to analyse the interconnectivity between the will of the donor and the general validity requirements for donations in the Romanian civil law. As part of the continental tradition of civil law, the 2009 Civil Code of Romania maintains the will theory at the forefront of its contract law. Within this framework, the legal concept of will encompasses the mental process of volition, during which the individual reflects and arrives at a decision, and the utterance of said decision. As a result, the notion of free will forms the foundation of contractual freedom. Through its gratuitous nature, a donation is both a contract and an act of liberality. As such, the legislator’s reluctance in the field of liberalities has influenced how the general requirements of validity were ultimately shaped. Liberalities are demarcated, from the volitional point of view, by the liberal intent of the donor, and from the economic standpoint, by the reduction of the donor’s patrimony. This impoverishment of the donor is the source of the legislator’s reluctance. Thus, our effort sets out to trace the influence of the liberal intent upon the general validity requirements of a donation contract. For this purpose, the present paper is divided into four main sections, corresponding to said requirements: cause, consent, capacity and object. While cause and consent derive naturally from the will theory, capacity and object were also subordinated to the liberal intent of the donor. As such, the common incapacity was entwined with a special variant which absolutely presumes the suggestion or captation of the donor’s mind. In regard to the object, the donor cannot dispose of the good belonging to another, unlike in the case of a sale contract.
