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The author of the study critically refers to the contradictory opinions expressed in the doctrine with regard to the scope of companies covered by Article 1931 of the new Civil Code, a text which regulates the tacit extension of the duration of the company contract. Noting that, according to an opinion, the text is applicable not only to the simple company, but also to all companies with legal personality regulated by the Law No 31/1990 on companies, and, according to another opinion, it is applicable only to the simple company, the author advocates and argues his own opinion. According to the author’s opinion, the tacit extension of the duration of the company may occur in case of simple company (without legal personality), regulated by the new Civil Code, but also in cases of stock company and company limited by shares (companies with legal personality), regulated by the Law No 31/1990 (a special law in relation to the new Civil Code). On the contrary, the author considers that the text of Article 1931 of the new Civil Code is incompatible with the legal regime of the general partnership, of the company limited by shares and of the limited liability company (companies with legal personality regulated by the same special law), because, otherwise, the legal rule by which it is recognized to the personal creditors of the associates in these companies the right to opposition to the extension of the duration of the legal person would be eluded. -
This study aims to briefly analyze the promise of sale with the three forms in which the promise is objectified: unilateral promise, bilateral promise, option pact. In the opinion of the author, the versions of the promise are separate legal entities, all preceeding the final contract, which can be regarded as preparatory stages of the final contract, in the process of its progressive elaboration. In the view of the Romanian legislator, but also of the dominant doctrine, the unilateral promise is essentially different from the option pact, contrary to the French doctrine and to a part of the Romanian doctrine. In the enforcement of the promise the author appreciates that the pronouncing of a judgment, which replaces the contract, is a way of exception of the enforcement in kind, not being possible for the court to substitute for the lack of consent for the final conclusion of the contract expressed in the form provided by law for the final act, of any of the parties. Therefore, in essence, the principle of contractual freedom shall prevail over the principle of its binding force.
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According to Article 247 of the Law No 187/2012 for the implementation of the Law No 286/2009, the Criminal Code entered into force on 1 February 2014. The new Criminal Code provides four articles for the regulation of the application of the criminal law in time: Article 3 refers to the principle of the activity of the criminal law, Article 4 regulates the retroactivity of the criminal law of decriminalization, Article 5 is devoted to the application of the most favourable criminal law before the final judgment of the case, Article 6 concerns the application of the most favourable criminal law after the final judgment of the case, and Article 7 is reserved to the application in time of the temporary criminal law. Throughout this study the author presents and explains the new criminal rules regulating the application in time of criminal law.
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Throughout this study the author intends to emphasize some innovative aspects introduced by the new Criminal Procedure Code concerning the criminal prosecution stage, and also some legal provisions insufficiently conceptualized and corroborated with the regulation in its entirety. Aspects related to the referral and the jurisdiction of criminal prosecution bodies are analysed, as well as those pertaining to the beginning and progress of the criminal prosecution, and to the decision not to indict. The author also makes some proposals de lege ferenda meant, in his opinion, to remove or clarify those legal provisions which he appreciates as being contradictory. -
This study is meant to clarify the content and the meaning of legal norms devoted to the protection of databases. The author presents and subjects to analysis the points of view of prestigious authors and his own relative to the legal nature of the rights arising from the creation of databases. This paper examines the elements of the legal relationship arising from the database creation: the subjects, the object and the content of the relationship, emphasizing the particularities and the specificity that shape its identity. However, the topic discussed is connected to the European case-law in the matter, precisely to highlight the manner in which it is raised the question of the relationship between the protection of databases in the area of copyright and through the sui-generis right of the creators of these intellectual creations. The author analyses databases in order to underline the fact that they are man-made creations, with an important role in the economic and social life and are more and more frequently exposed to unfair competition. Moreover, the article also offers starting points for specialists called to study thoroughly less known aspects of the legal protection of databases.
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Examinând conținutul unei hotărâri pronunțate în cadrul regulatorului de competență în cazul unui conflict negativ de competență, se constată că aceasta nu soluționează fondul unei cauze, ci doar un incident procesual în care stabilește care din cele două instanțe va trebui să judece, potrivit dispozițiilor legale. Cum, în cazul analizat, titularul sesizării solicită interpretarea unor dispoziții procedurale în scopul determinării instanței competente teritorial să judece o cerere de încuviințare a executării silite imobiliare, se constată că stabilirea competenței nu reprezintă o chestiune de care să depindă soluționarea pe fond a cauzei. În consecință, se constată că mecanismul de unificare a practicii judiciare reglementat de dispozițiile art. 519 și următoarele din Codul de procedură civilă nu poate fi uzitat atât timp cât legiuitorul a limitat, prin condiția restrictivă de admisibilitate analizată, rolul unificator al instituției juridice a hotărârii prealabile numai chestiunilor de drept care conduc la dezlegarea în fond a cauzei sub aspectul statuării în privința raportului juridic dedus judecății. (cu notă critică)
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The article analyzes the qualification of the appeal on law in civil disputes where the judicial remedy of appeal ex novo is not opened, such as the waiver of judgment and the waiver of the claimed right, where the judgment is only subject to the appeal on law. The appeal on law promoted in administrative disputes is also analyzed. The author comes to the conclusion that, even when the judicial remedy of appeal ex novo is suppressed, the appeal on law preserves its nature of extraordinary remedy. -
This study analyzes the regulations pertaining to causes of revocation of donations, regulations which entered into force at the same time with the implementation of Law No 287/2009 on the new Civil Code. The starting point of this paper is the fact that donations and liberalities have been under the influence of special legal regimes, different from those of onerous legal documents. Even though donations are, in principle, irrevocable legal acts, the legislator has instituted special cases of revocation thereof, in order to avoid or limit prodigality acts and undesired effects on the interests of the donor or of the persons close to this donor. It was particularly on these causes of revocation of donations that the author focused his scientific endeavour, by analyzing doctrine and case-law and by formulating his own opinions and de lege ferenda proposals, so that legal rules in the examined area be harmonized with the public order interests. The study also relates to the new criminal regulations (the new Criminal Code) as regards the criminal acts of revocation of donations for ingratitude.
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The article analyzes one of the circumstances which prevents the conclusion of marriage, i.e. kinship. Following a brief introduction, the author focuses on impediments to marriage resulting from natural kinship, kinship resulted from adoption and kinship in case of medically-assisted human reproduction with a third donor. The final part is devoted to the conclusions which can be drawn from this study.
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The author criticizes a decision of the Bucharest Court of Appeal which, having to settle a case concerning dismissal determined by the dissolution of the workplace of an employee for reasons not related to him/her, stated that the dismissal is lawful even if it was not the position of the dismissed employee that was dissolved but another position of the same kind, but, on the other hand, it has decided that the measure in question is unlawful on grounds of not being „serious” since the employer (a ministry) has not proven the objective criteria that should support the seriousness of the applicant’s removal from the position held (the reason why the employee was not good enough or sufficiently trained in the profession in order to be maintained in activity or why the other employees maintained in activity were better suited, professionally or otherwise, as compared to the ones selected for dismissal).
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The new regulatory framework, established in the matter of accelerating the process of restitution of real estate properties and of the compensatory measures by the Law No 165/2013 on measures for the finalisation of the process of restitution, in kind or by equivalent, of the buildings abusively taken over during the communist regime in Romania, also includes some regulations concerning the cases and the modalities of cancellation of the titles of property issued by the county commissions of land resources. In the ambience of the new regulatory framework, this study analyzes the regulations established by the Law No 165/2013 in the matter of cancellation or change of titles of property issued by the county commissions of land resources, as well as in the matter of cancellation or of changing the decisions issued by these commissions, which stood as basis for the issuance of the title of property. The analysis of these issues has been made by reference of the provisions of the Law No 165/2013 to other provisions established by the Law No 18/1991, the Regulation for application of this law, as well as by reference to the special normative acts of reparatory nature.
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Given the absence of solutions expressly provided by law, national criminal courts now apply, with more courage and in the interest of justice, fundamental principles of criminal process as laid down by the Constitution, the Criminal Procedure Code and the practice of the European Court of Human Rights, which provides free access to justice, including judicial control on the acts of the prosecutor. In this context, the old adage „Justice is blind” may be replaced with a new concept, better suited to new national, European and international economic and social relations – „Justice is not always blind”.
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Pursuant to Article 1541 (1) b) of the new Romanian Civil Code, which entered into force on 1 October 2011, the court may reduce the amount of the penal clause if „the penalty is clearly excessive as compared to the prejudice which could have been provided by the parties upon the conclusion of the contract”. The author considers that the text is incomplete, in the sense that it does not specify whether the reduction of the penalties may be ordered by the court only on the debtor’s request (the system referred to in BGB – the German Civil Code) or also ex officio (a system presently regulated by the French Civil Code). The author believes that the reduction of the amount of penalties in question can not occur ex officio because fundamental principles of civil proceedings (especially the principle of availability) are violated. Finally, the author proposes an amendment of Article 1541 (1) b) of the Civil Code in order to be expressly stated whether the reduction of penalties occurs only on request or also ex officio. -
Preserving its nature as a modality of extinguishing a legal obligation, a fiscal obligation herein, the provisions of the Fiscal Procedure Code customize the datio in solutum in relation to the common law, under the following aspects: premises for operation thereof; procedure for realisation thereof – a special and excessively rigorous one; legal effects, all these in compliance with the specificity of the fiscal field. These aspects are the object of analysis of this study, making their radiography, in the light of the connected legal provisions inclusively, so that, ultimately, be able to reach a conclusion on the legal regime of fiscal datio in solutum.
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In this study the author has analyzed corruption from the perspective of its legal implications on the business environment. A notion which appeared at the same time with the economic changes became in time a truly global scourge which has systemically affected the economic exchanges, the financial flows, the market economy. It symbolizes, after all, the poor functioning of the state which makes considerable efforts to control the economic and financial crime. In this context, the author has identified corruption acts and measures to combat them, also emphasizing the constant efforts at both state and international level, in order to combat this criminal phenomenon.
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Dignity of human being is one of the most obvious and complex notions which lawyers had to study thoroughly in the last years. The complexity of dignity arises from its almost non-legal nature: dignity is a fundamental attribute of the human being or a postulate of civilization of which law should take note. It can not be conceived that dignity can be denied or that legal order ignore it. As an expression of human value, dignity tends to be confused with the notion of humanity. The presence of a principle of dignity in our legal order is undeniable; but respect for a person’s dignity can also reveal itself as a subjective right, as shown in Article 72 (1) of the Civil Code. Having in view the uncertainties arisen in the debates around dignity, the authors’ approach is an attempt to reflect, on the one hand, on the conceptual notion of dignity by the analysis of the object and of the legal nature of dignity and, on the other hand, on the functional point of view which allows to determine what dignity serves for; in other words, the functions of dignity and its practical applications. The regulation of the right to dignity in the Civil Code should be regarded as a timely novelty. -
Starting from the semantics of the term „parental authority” and from its normative background, this study raises for discussion the issue of the intention of the authors of the current Romanian Civil Code to reaffirm the „parental power”, as a legal solution for „calming down” the trend of „early emancipation” of the child. The viability of this terminological option is analyzed both in relation to the provisions of some international and internal normative acts in the field of protection of the child’s rights and in light of the Civil Code rules regulating various aspects of authority (power) within the relationships between parents and child.
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At the same time with the entry into force of the Law No 286/2009 on the Criminal Code, the regime of judicial individualization of criminal sanctions has undergone significant changes both by introducing some new institutions, such as postponement of application of punishment, and by a different regulation of some old institutions, such as the suspension under supervision of execution of punishment. The author analyzes comparatively the two above-mentioned institutions of law, as well as by correlation with other provisions of the criminal law, in order to highlight their defining particularities, required to be known for a better judicial individualization of punishment.
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In this study, the author, starting from the provision written down in Article 60 (1) c) of the Labour Code, according to which the dismissal of the pregnant employee is forbidden, as far as the employer was notified of this fact prior to the issuing of the dismissal decision, considers that the interpretation of this legal text should be performed extensively, in correlation with the provisions of Directive 92/85/EEC and, as such, the interdiction in question is also incidental, for example, in cases of dismissal of the employee in the trial period, of hiring the employee under a fixed-term contract or even if she did not notify the employer about her pregnancy condition prior to dismissal, if the failure to notify is not the consequence of bad faith of the person concerned and others.
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This study examines the regulation of the Civil Code, entered into force on 1 October 2011, in respect of non-essential clauses, standard clauses, external clauses or extrinsic and unusual clauses, in the process of conclusion of contracts. Despite the intention of simplification which the Civil Code had in view, the risks and the issues generated by these legal instruments can be imagined, even in this early stage of its application. Within this analysis, there are also reported some problems, as well as some possible solutions in this respects.
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Unlike the previous legislation, which did not contain any reference to the progressive offence, the new Criminal Code indicates the time from which the prescription period starts to run for this type of offence, without regulating, however, other aspects referring to the criminal treatment applicable to the acts falling within the legal category in question. This task lays further on case-law and doctrine, but, having regard to the numerous contradictory solutions and controversies noted, some regulations to ensure a uniform settlement of the noticed aspects shall be required, de lege ferenda.
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This study deals with a new institution in the Romanian criminal legislation, namely the plea agreement, which is a deal of the prosecutor with the major defendant concerning the offence, the evidence, the form of guilt and the punishment imposed, all taking the form of a simplified procedure. By combining the theoretical and the practical aspects, the article is of great interest to those who apply the criminal law. Being written in a way which transcends the already known generalities regulated in the Criminal Procedure Code, the study specifically concerns the particularities and the difficulties which accompany the application of this new legal mechanism.
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In this study, the author examines exhaustively the problems of the preliminary proceedings before the Court of Justice of the European Union [Article 19 (3) (b) of the Treaty on European Union; Article 267 of the Treaty on the Functioning of the European Union]. To this end there are examined: the referral, the preliminary, the preliminary procedure of common law and the special prejudicial procedures.
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In this study, the author, after presenting some brief considerations on proportionality as a principle of law, presents the theoretical foundations of proportionality, as they are reflected in the Romanian legal doctrine. Finally, the author proposes that, in prospect of future revision of the Constitution of Romania, it must be established, in its very first article, that „the exercise of the state power must be proportionate and non-discriminatory”. -
Introducere.1 Una dintre principalele probleme existente în practica judiciară, după intrarea în vigoare a noului Cod penal, a fost legată de modalitatea de aplicare a legii penale mai favorabile. Aceasta a generat practica neunitară a instanțelor de judecată și a determinat pronunțarea de soluții de către Înalta Curte de Casație și Justiție și de către Curtea Constituțională. Realizarea unei diagnoze a celor 6 luni de aplicare a noului Cod penal reflectă modalitatea oscilantă în care au fost aplicate principiile care stabilesc determinarea legii mai favorabile, cu evidente consecințe asupra stabilirii pedepselor în cauzele aflate în curs de soluționare. -
The Law No 85/2014 on the procedures for preventing insolvency and of insolvency (which entered into force at the end of June 2014) repeals and replaces the Law No 85/2006 on the insolvency procedure. Obviously, the current law brings a series of new elements, as compared to the previous law. This study briefly presents the main elements of novelty brought, in this matter, by the Law No 85/2014, as compared to the Law No 85/2006, reaching to the conclusion that the regulation of the new law, on the one hand, avoids the financial blocking and, on the other hand, in view of covering the claims, gives greater chances both to the debtors who are in difficulty or in default of payment, and also to the creditors, especially if they are acting in good faith.
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The Law No 85/2014 on the procedures for preventing insolvency and of insolvency has been recently adopted and has entered into force. Whereas Article 123 (1), (7) and (8) of this Law provides a series of regulations that aim, directly or indirectly, at the „denunciation” of some categories of individual labour contracts of the employees of the debtor (undergoing insolvency) or at the „dissolution” of such contracts, in this study the author examines the above-mentioned problems.
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The trust that the patient grants to the medicine professionals for applying the prevention or treatment methods corresponding to his health condition, under the lowest risks, depends on correct and complete information regarding his prevention, diagnostic and treatment activities. Actually, the breach of this deontological duty represents an act of betrayal of his trust, as he could not choose the best solution corresponding to his own interests, in the circumstances in which the patient is free to decide about his own fate. From the legal point of view, this breach of duty results in the civil liability incurred for the prejudices caused to the patient. Considered from the perspective of the biomedical ethics, the physician’s duty to inform the patient brings into focus an interesting subject of research: the manner in which the observance of the patient’s autonomy affects the mechanism of adopting the medical decision related to the diagnostic, the care, the treatment or determining him to undergo certain scientific experiments. From this perspective, the study tries to provide a new approach of the duty of information, but this time from the ethical point of view related to the consideration due to the dignity of the patient human being who is so vulnerable and suffering. The selection of the case law solutions rendered completes the exposure of the legal consequences regarding the breach of this duty. -
In this study the author performs a general exposure of the concept of periodic penalty payments firstly (concept, terminology, origin and evolution; legal nature; goal, legal basis; structure), and then examines the legal regime of the periodic penalty payments in the administrative matter (the grant conditions; the forms of the periodic penalty payments and the liquidation of the periodic penalty payments in the matter, and finally he discusses about the issue of the periodic penalty payments in the administrative matter in the light of the European Convention for the Protection of Human Rights and of Fundamental Freedoms (including in terms of the practice of the European Court of Human Rights from Strasbourg).
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Taking into consideration the subtle and random criteria as an incidence in the delimitation of influence peddling from the fraud offences, it is likely that in very similar cases of misleading, the criminal will be lucky due to the occurrence of the influence peddling or it is likely that should not have been lucky when he committed materialized deeds supplementing the constitutive content of the fraud offence in relation to similar material damages. It is likely to cause material damages also in the matter of the formal criminal deeds and in the process of the legal and judicial individualization of the punishment, also the amount of the material damages produced as a result of the concrete endangerment offence should be taken into account.
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The areas where the Civil Code brings regulations lacking in the previous legislation include the controversial area of civil legal acts nullity. As shown throughout this article, many of the current legislative solutions are inspired by the previously existing legal literature and jurisprudence, while others are unique. The author’s main concern is reflected in an attempt to outline some features of the civil legal act nullity as they can be drawn from the new regulation. -
In this study, the author makes a thorough analysis of the current regime of private land movement in Romania in the light of the regulations contained in the new Romanian Civil Code (entered into force on 1 October 2011), as well as in other normative acts in force, but adopted earlier (the Forestry Code - Law no. 46/2008, Law no. 50/1991 on the authorization of construction works republished on 13 October 2004, Law no. 350/2001 on spatial planning and urban planning; Law no. 315/2005 on the acquisition of private property rights by foreign and stateless citizens and foreign legal persons; Law no. 71/2011 for the implementation of the new Civil Code. Essentially, the author believes that, although, partially, the new Civil Code relating regulations do not always have a fundamentally (absolutely) new nature, they bring, however, significant changes.
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The judicial declaration of presumptive death is covered by art. 49 to 57 of the Civil Code and art. 943 to 950 of the Code of Civil Procedure; these are texts that take over a large part of the old regulation provisions and also bring some novelties. The new legislation no longer requires prior assumption of disappearance and establishes a general case and two special cases of judicial declaration of death.
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The author provides a detailed analysis of the legal content of bribe taking offense provided for in art. 289 of the new Criminal Code. He examines the subject of care proceedings, the subjects of the offense, the objective and subjective sides, the forms, procedures, sanctions and some procedural aspects relating to the deed provided for in art. 289 of the new Criminal Code and its aggravated versions. Also, the author does not hesitate to express his standpoint with regard to the systematization of this offense, the constituent content thereof, its nature, its relations with the provisions of Law no. 78/2000 on preventing, discovering and sanctioning corruption, as subsequently amended and supplemented, and to propose some of his own solutions and ideas in this regard. Not least, the author promotes some of his own opinions on the connection or relationship of this criminal deed with other offenses, as well as regards the law applicable for transitional cases.
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In this study, the author makes a thorough analysis of the provisions of art. 61 letter d) of the Labor Code (Law no. 53/2003, republished) whereby, among the causes for dismissal by reason pertaining to the employee, the case of employee’s failure to professionally meet the job requirements is also expressly regulated.
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Currently, disputes arising from the application of Law no. 85/2006 are a significant part of Romanian contentious matters, the role of the specialized sections within the courts throughout the country being most often overcrowded. For the years of crisis, insolvency is what claims and disputes arising from the property restitution laws enforcement meant for the years of increased growth. Although civil law specialists with tradition find the insolvency proceedings regulation quite simple, it arises nevertheless a number of interesting legal issues, worth a deeper look. One of these is the issue of compatibility between the intervention institution governed by the Code of Civil Procedure, and the applications specific to insolvency proceedings. Due to the fact that our jurisprudence has provided no consistent reply yet to this issue, the author states the reasons for which a particular solution (rule and exception) seems to be required.
