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In this study, the author analyses the offence of disturbance of possession both from the diachronic perspective and in the light of the applicable, but also future criminal laws. From the historical perspective, the author states that the amendments that the new Criminal Code brings in relation to the abovementioned offence cause the regulation to be similar to the provisions of art. 556558 of the Criminal Code „Carol II who punished the committed offence by moving the boundary limits, by threat and violence and of art.220 of the Criminal Code of 1968, in its original version, for the simple occupation without being entitled, the owner having the use of possession actions at his disposal. -
The study analyses the legal provisions regarding the capital market in terms of the relationship which has to exist between the relevant laws of the European Union, the Romanian law and the normative acts of the National Securities Commission, as an autonomous administrative authority. Certain legislative issues which occurred in the transposition of certain provisions of the European Directives into Romanian laws are identified. These issues generate effects breaching the constitutional principles and, consequently, affect the integrity of the Romanian law system regarding the capital market. The necessary solutions are proposed as well, in order to reestablish the balance between the above mentioned normative acts, as compared to their legal force.
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Given the ambiguity of the legal texts in the Law concerning the public-private partnership addressing the financing of public-private partnership projects, this study endeavors to identify the various ways of using public funds in such projects. It forwards arguments for a restrictive interpretation of the concept of „financing” as used by such texts, proposed to be limited to the construction phase of the project, and also analyses the main legal structures having an impact on public funds, usually guarantees, by which the public partner may provide support to a public-private partnership project. Whilst pleading for the use of such direct of indirect public guarantees, the study emphasizes the need for their accurate identification, including their potential consequences on the public debt and deficit statistic treatment as well as on state aid.
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Law no. 221/2009 regarding political convictions and their related administrative measures issued during the period 6 March 1945 – 22 December 1989 in art. 5 paragraph (1) letter a) sets forth the payment of non pecuniary damages for the above mentioned persons, damages which are owed by the State. Subsequently, according to the Government Emergency Ordinance no.62/2010, the content of art.5 paragraph (1) letter a) of Law no. 221/2009, was amended so that the above mentioned non pecuniary damages were limited to the maximum amount of Euro 10,000 for the convicted person, respectively Euro 5,000 or 2,000 for the spouse or for the Ist or IInd degree descendants. Pursuant to two decisions issued by the Constitutional Court in the year 2010, the content of art. 5 paragraph (1) letter a) of Law no. 221/2009 was declared to be unconstitutional by the Constitutional Court (both the original content, and the amended content, pursuant to 2 decisions of the Constitutional Court). Such being the case, the author considers that following the submission of these two decisions of the Constitutional Court, the entitled persons cannot be granted non pecuniary damages any more, this being also valid for the litigations pending (not being settled finally until the publication of those two above mentioned decisions.
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According to the Labor Code (Law no. 53/2003, republished on the 18 of May 2011), the employer, under the pain of absolute nullity, cannot inflict any disciplinary sanction (except the written warning), without beforehand and compulsorily, performing a disciplinary investigation as well, by an individual authorized by the employer to this end. The minimum rules regarding the disciplinary procedure (namely, also those regarding the prior disciplinary investigation) are set forth in the Labor Code and are developed by the Internal Regulations of the unit. Such being the case, this kind of rules cannot be legally established in the collective employment agreement, no matter its level of negotiation (at the level of the unit, of the group of units or of the fields of activity), even if during the period 2007–2010 the national unique Collective Employment Agreement (terminated at present) regulated, against the law, a procedure regarding the (prior and compulsory) disciplinary investigation which included also provisions obviously contrary to the Labor Code.
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Although it maintains the legal fusion system for sanctioning multiple offences, the new Criminal Code sets forth the obligation to apply a fixed increase to the hardest punishment, representing the third part of the total punishments inflicted for simultaneous offences. The author states that the provision of the amount of the increase of punishment in the content of the law does not allow the court to judge, as the case may be, depending on the number and on the grossness of the simultaneous offences and on the particulars of the defendant, the need and especially, the amount of the punishment increase. In order to avoid certain legal exaggerations which could result from the establishment and the application of the punishment increase, according to the new regulations for the observance of the principle of lawfulness of criminal sanctions and in order not to give the court the opportunity to apply the sentence of life imprisonment when it is not set forth for any simultaneous offence, the legal amendment of the provisions of art. 39 of the new Criminal Code, is required.
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The letter of guarantee is regulated by the new Civil Code within the autonomous guarantees, together with the letter of comfort. It is an autonomous, unconditional and irrevocable legal deed. In the letter of guarantee, the issuer assumes its own obligation which in its relationship with the beneficiary at least, shall be main and autonomous – the payment of an amount of money upon the first simple request of the beneficiary, for the situation in which the result taken into account upon its assumption is not carried out. The execution of the letter of guarantee depends only on its own requirements and this is the criterion according to which it distinguishes basically from the deed of trust.
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In the above study, the author, carrying out a critical analysis of articles 1216–1218 of the new Romanian Civil Code (Law no. 287/2009, which became effective on the 1st of October 2011), namely, regarding the contents regulating the violence (as a vice of consent) in this Code, considers that their wording is not adequate and that is why finally, the study, de lege ferenda proposes a new wording of the contents, such as formulated by the author.
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Simpla cunoștințã a existenței și folosirii mãrcii anterior depozitului nu este suficientã pentru întrunirea condiției relei-credințe, fiind necesar ca acest fapt sã fie unul de naturã frauduloasã. Reaua-credințã implicã îndeplinirea cumulativã a douã cerințe distincte, vizând, pe de o parte, cunoașterea „faptului relevant” – existența și folosirea unei mãrci anterioare sau chiar a unui semn neînregistrat ca marcã – iar, pe de altã parte, intenția frauduloasã. -
Within the framework of study hereby, the institution of the Romanian President’s immunity under the Criminal Law is subject to review. Observing the constitutional legislator’s option, first there are set under review the material and temporal limits of the procedural immunity. In this context, there are put forth some novel problems such as summoning the President as a witness or the scope of immunity in the case of civil and tort liability. In relation to the substantive law immunity, it is reviewed the rationale of the institution, and then its substantive limits are detailed: the presidential powers are identified, i.e. there are brought to the attention some controversial assumptions such as granting and revoking the conditional pardon, or views expressed by the President in another frame than the official one.
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The offence of incest, like other offences relating to sexual life, has generated debates in the specialty literature and doctrine, as well as different solutions in judicial practice. From the author’s viewpoint, although the High Court of Cassation and Justice envisaged, by Decision no. II/2005 to standardize courts’ practice, as regards the legal classification of the facts that, in relation to their material content, meet both the constituent elements of the offence of rape, as well as those of the offence of incest, the solution adopted is questionable, in its turn. The legislature, by the rules of incrimination of the offence of incest under the new Criminal Code, succeeds, at least in this respect, to settle the issue. However, there are some outstanding issues that this study seeks to put forward and clarify.
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In the study above, the author puts forward a petition issued by the Anticorruption General Directorate (autonomous structure within the Public Ministry, coordinated by the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice), under which, in relation to a female judge whose spouse (judge) was criminally prosecuted by indictment drawn up by the National Anticorruption Directorate, it is requested to be removed, administratively, from the analysis of documents (indictments, etc.) issued by the National Anticorruption Directorate. As a result of resentments, being thus in the presence of a conflict between the family interests and the public interest for administering justice. The Superior Council of Magistracy could not adopt a decision on the relevant petition within the Court, getting to a tie vote (4 votes for, 4 votes against). The author hardly criticizes the petition submitted by the Anticorruption General Directorate, considering it as an administrative interference in the work of a judge.
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Following the conclusion of the Arbitration Convention there are born a number of contractual relationships between all participants in such Convention, namely: the Arbitration Agreement (between litigants and arbitrators appointed by the same); the Arbitration Cooperation Agreement (in the case of Institutional Arbitration, between arbitrators and the permanent arbitration institution); the Agreement on the Organization of Arbitration (between the Parties and the Arbitration Institution). In the above study there are reviewed the legal issues of the three Agreements, subsequent to the conclusion of the Arbitration Convention mentioned above, namely: The Arbitrators’ Agreement, Drafting Arbitration Agreement and the Agreement on the Organization of Arbitration.
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The study hereby was inspired by a recent Case where the European Court of Justice (ECJ) ruled upon a petition for a preliminary ruling covering the interpretation of the provisions of Council Directive 93/13/EEC of April 5th, 1993 on unfair terms in consumer contracts made under Article 234 EC (now Article 267 of the Treaty on the functioning of the European Union). Taking our stand upon the issues highlighted by the aforementioned case, namely the possibility of cancellation of an arbitration award by the Court of enforcement and implementation ex officio of the European Union Law by the national court, it should be laid down some clarifications relating, mainly, to the ECJ solution with reference to the principles of the European Union Law, as well as national issues regarding the subject of the enforcement act, the possibility to pursue an appeal against the arbitration award, the principle of availability governing the lawsuit, but also the res judicata of judgments. The authors critically analyze the judgment and bear in mind the relevant Romanian law (including the provisions of Law no. 134/2010 on the new Code of Civil Procedure), and the possible effects in national, arbitration or judicial jurisprudence.
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Law no. 85/2006 on the insolvency procedure, under Article 138, ties to rules the cases and the conditions under which managerial or supervisory staff of the debtor (legal entity), facing insolvency, is to answer patrimonially for having caused the state of insolvency of the relevant debtor (legal entity). In practice, in relation to this wording, it was raised in case law the question whether those by right can make such a request (on grounds of Article 138), subsequent to the occurrence of closure of the insolvency proceedings (under Articles 131-137 of the same Law). The author argues – bringing arguments to that effect, that it is required a positive response.
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The new Criminal Code, bringing numerous novelties in the sphere of incrimination of the Romanian Criminal law, sets forth under Article 284 the sanctioning of an attorney’s act or of a person acting as representative in a legal business for failure to defend, in good faith and fairness, the rights and interests of the person represented, with the view to discriminate in favour of another person, with opposing interests.
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Hardship (as grounds for contractual amendment or termination thereof, even in default of contractual provisions in this respect) had not been legally regulated under the former Romanian Civil Code (dated 1864), but only under some special laws. However, during the past two decades, there was shaped in legal doctrine and the Romanian reference jurisprudence a theory of hardship (as shown), which substituted, in part and controversially, the legal deficiency in the matter. This deficiency wore away by the entry into force of the new Civil Code (Law no. 287/2009, republished on July 15th, 2011 and enforced on October 10th, 2011), which, by a single fundamental wording (Article 1271, entitled „Hardship”) regulates the conditions under which the Court may rule, where appropriate, upon the adoption of a contract or even termination thereof „should the performance of the contract become excessively burdensome due to an exceptional change of circumstances that would make manifestly unjust the binding of the debtor to the execution of its duty”. In the study above, the authors make an analysis of the configuration of hardship in the light of Article 1271 under the new Civil Code.
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In order to highlight the civil liability structure, as ensuing from the wordings of the new Civil Code, enacted on October 1st, 2011, the author makes the synthesis of the theories of French doctrine developed in this issue: the theory of civil liability unity, the theory of civil liability duality and the intermediate or eclectic theory. Likewise, there are paraphrased discussions taking place at present, in the French doctrine as well, on the existence and relevance of contractual liability. The author presents thereafter echoes that these theories and discussions had within the framework of Romanian doctrine and jurisprudence during the last century. Acting towards the analysis of the wordings under the new Civil Code regulating civil liability, it is concluded that their editors have adopted our contemporary doctrine theory, under which civil liability is unique in its essence, and dual under the legal regime applicable to it. Therefore, following the criterion of the legal system, the well-known dichotomy is preserved: tort liability and contractual liability.
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Cererea în despãgubire din valoarea cauțiunii este o cerere contencioasã, care presupune examinarea elementelor rãspunderii civile delictuale sub aspectul exercițiului abuziv al acțiunii, al prejudiciului produs și al legãturii de cauzalitate dintre paguba pricinuitã și conduita procesualã a pãrþii, competența de soluționare a unei astfel de acțiuni patrimoniale fiind reglementatã de dispozițiile generale cuprinse în cartea I din Codul de procedurã civilã (Înalta Curte de Casaþie și Justiție, Secția comercialã, decizia nr. 4170 din 30 noiembrie 2010). -
The article includes some considerations regarding the procedural dispositions concerning the purpose of criminal lawsuit, as regulated in the Code of Criminal Procedure. The author analyzes the dispositions of the new Code of Criminal Procedure which establishes the purpose of the rules of criminal procedure, by reference to the dispositions of the Code of Criminal Procedure in force where the purpose of criminal lawsuit is established.
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In the new Civil Procedure Code, a great number of court decisions remain final in the appeal in tribunals or courts of appeal, and there is no procedural way to fight against illegal or unfounded decisions. Given the judicial realities of our country, it is speculative to believe that the enforcement of the NCPC will automatically stop tribunals and courts of appeal from pronouncing illegal or unfounded decisions. Therefore, it is only natural that an adequate regulation is adopted, by the reintroduction of the action for cancellation as a last remedy for the correction of illegal or unfounded decisions. Although the action for cancellation proved its utility, it was eliminated from the Civil Procedure Code, by the Government Emergency Ordinance no. 58/2003, amending and supplementing the Civil Procedure Code. The parties in the trials for which the decisions remain final in the appeals filed with various tribunals and courts of appeal do not have access to the High Court of Cassation and Justice, and in these circumstances illegal or unfounded decisions are not submitted to the judicial control of the latter. The requirement to correct illegal or unfounded judgements passed by the courts of law is provided by art. 6 § 1 in the European Convention of Human Rights, art. 1 par. 3 and art. 124 in the Constitution, moral rules and the precepts of the Holy Bible, the sacred book of Christianity, according to which all deeds and actions of people must be based on truth and justice.
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The present study analyzes a series of civil procedure aspects – both in the light of the current Code of Civil Procedure, still in force, and in the light of the new Code of Civil Procedure (Law no. 134/2010, but still unenforced) – that are debatable, concluding that, for instance: z Sending a cause for retrial can only take place within the limited situations set forth in the Code of Civil Procedure (when the merits has not been investigated or trial has been made in the absence of the party illegally summoned). z Absence of the notice of adjournment of the pronouncement or not signing it can not be assimilated to non-investigation of the merits; z Absence or not signing the minutes represents a non-investigation of the merits; z Suspension of the court order execution, appealed by means of extraordinary appeal procedures shall be judged in the same composition by which the appeal is settled; z In order to establish the exercise of parental authority it is compulsory to enclose the social investigation report to the court case.
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The termination of synallagmatic contracts with execution uno ictu represents a common cause in the judicial practice for the annulment of agreements which generates reinstatement of the parties in the former condition, by mutual restitution of the considerations executed by each of them. When the agreement is transferable of property, as consequence of the reinstatement of the parties in the former condition, the asset returns from the acquirer’s to the allienator’s patrimony, the latter having the obligation to return the delivered performance. In case a precautionary measure is established over the acquirer’s patrimony, such as distraint, the asset is frozen, thus being questioned if it can be discharged from the acquirer’s patrimony as consequence of termination. The author estimates that such thing is possible, because such discharge is not voluntary, but forced, as the pros and cons are detailed in the content of this article. Moreover, there is a series of procedural aspects that must be taken into account by the court of law invested with the settlement of such termination request.
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The present study proposes to analyze the issue of civil guilt, in both of its forms (tort and contractual), judging that the selection of the Civil Code s applicable guidelines (the new Civil Code, in force as of October 1st 2011, as well as the previous Civil Code) from the amalgam of jurisprudential solutions and doctrinaire directions is highly important. The exploration of the Civil Code ks texts brings in discussion a current topic much debated by the contemporary doctrine: disappearance of the unity and harmony of civil liability, which is traditionally founded on guilt. The coexistence of the hypotheses of subjective civil liability with those based on the idea of risk, warranty or equity, within the context of modern society, evidences the increase of the remedial role of civil liability, to the detriment of the sanctionable role. The attention focuses on the victim ks position, to be indemnified, being less important, within the area of civil liability, the sanction applicable to the offender. In the last part of the study, the author expresses her belief that, despite inherent difficulties, undoubtedly, at this moment, the guilt still remains „the eternal lady of tort liability”.
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In this study the authors focus on the necessity of considering the criminal ks degree of social danger in the individualization of penalty, given that the same penalty, identical as type and amount, does not generate the same effects for all criminals on whom it is applied. Concurrently, the authors highlight and conduct an ample research of the elements de facto that are used for the assessment of a criminal ks degree of social danger. Therefore, in order to comprehend the criminal ks degree of social danger, the following should be assessed: health condition (predominantly the psycho-physical condition), the criminal ks biological structure and mental characteristics, the entire social environment, the criminal ks behavior before perpetration of the crime, the criminal and legal circumstances of the criminal (convict, recidivist, prosecuted for other felonies, rehabilitated, amnestied, pardoned etc.), behavior after perpetration of the crime and during the criminal lawsuit, the level of education, as well as age. The following personal circumstances of individualization should also be included: the criminal ks capacity (officer, army enlisted, magistrate, mother etc.), civil status (married, single, widowed etc.), the relationship with the victim (close relative, relative, cohabitant, spouse, friend, enemy etc.) and any other information that might contribute to the individualization of the criminal ks individuality (for instance, lifestyle, reputation, social merits etc.).
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The new Civil Code has regulated, for the first time in our legislation, the periodic property. This new legal form of the right of property has been established as a forced joint ownership, although its owners do not exercise the prerogatives of the property right concurrently and together, but successively and repetitively. This study criticizes some provisions which govern the periodic property and sets out the arguments supporting the idea that this forced property cannot be considered joint ownership of property, as the Civil Code names it.
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Ending a controversy that lasted for two decades (1991-2011), Law no. 62/ 2011 on social dialogue settled, unequivocally, that in case of triggered and / or continued illegal strikes, the parties responsible are the organizers of the strike and all employees participating in such strikes, be they employees or civil servants. Further, the study proceeds to a thorough analysis regarding the legal nature of restoring liability (civil-tort or civil-contractual) of the organizers of such strikes, as well as of the „employees” (employees or civil servants) participating in such strikes, concluding that the first bear civil-tort liability, and the participating employees bear civil-contractual liability.
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Compensation for damage related to the environment (environmental damage, lato sensu) – harm to the (ecologically “pure”) environment and damage to persons or property caused by pollutants, harmful actions and disasters - is achieved in Romanian law through several legal regimes: tort liability, under the Civil Code (liability for the deeds of its own, deeds based on guilt, fault liability, the deed of things, liability for abnormal neighborhood disturbances), environmental responsibility (covered by Directive no. 2004/35 / EC, transposed into the national law by the Government Emergency Ordinance no. 68/2007), the objective liability of legal origin and liability for damage caused by defective products. The main criterion is in this regard the term “environmental harm” and the concept of environmental damage (lato sensu). The construction of the liability and compensation for damage related to the environment (environmental damage) system involves delimiting the action field of each type of “liability”, “repair”, establishing the specific rules applicable and capturing the relevant structural interdependencies. -
This paper analyzes the legal status of the Romanian judgments in terms of the European Enforcement Order, in light of the provisions included in Regulation (EC) no. 805/2004 creating a European Enforcement Order for uncontested claims; Regulation (EC) no. 1896/2006 creating a European order for payment procedure; and Regulation (EC) no. 861/2007 establishing a European Small Claims Procedure, all this, in conjunction with the rules of the new (Romanian) Code of Civil Procedure (Law no. 134/2010, republished on 3 august 2012 and entered into force on February 15, 2013).
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The author analyzes the rules of Directive 2001/23/EC of March 12, 2001 on the appropriation of the European Union Member States’ laws relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or establishments, by reference to the rules of the Labor Code (republished) and the provisions of Law no. 64/2006 on the protection of employees’ rights for transfers of undertakings, business or parts thereof; this comparative analysis reached some interesting conclusions useful both for theorists, and practitioners.
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The paper presents the amendments to the Government Ordinance no. 2/ 2001 brought by Law. 76/2012 for implementing Law no. 134/2010 on the Code of Civil Procedure, the Contraventional procedure undergoing major changes with the entry into force of these regulations. Therefore, the steps of the judicial Contraventional procedure are briefly presented through the innovations introduced by the Code of Civil Procedure and, at the same time, the Contraventional law-related issues not yet regulated are analyzed, reiterating the proposal to develop a Contravention Code to regulate matters still confusing of the law material Contraventional and, especially, the ones contravention of the procedure Contraventional.
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In this study, the author examines the relevant aspects for proper understanding of the regulations set out in a chapter of the new Romanian Criminal Code (Law no. 286/2009, as subsequently amended and supplemented) entitled “State border crimes”. It was noted that such a chapter has no counterpart in the Criminal Code regulations, which entered into force in 1969; this does not mean it is an absolute novelty in the Romanian legal landscape. The study makes an interesting comparison between the wordings included in the subdivision of the new Criminal Code and the ones in Government Emergency Ordinance no. 105/2001 and Government Emergency Ordinance no. 194/2002 which have served as inspiration for the legislator.
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Fraudulent bankruptcy is one of the criminal law’s “Cinderellas” because the legislator was highly oscillating with regard to the sanctioning regime, the rules indicting this deed suffered frequent changes of the contents and the seat of the matter was found in the recent years in several legal acts (the Commercial Code, Law no. 31/1990, Law no. 64/1995, Law no. 85/2006 and the 2009 Criminal Code). This study focuses both on the analysis of the fraudulent bankruptcy offense under the new Criminal Code and on the specific concepts.
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The authors comment on the provisions of art. 1013 to 1024 of the new Romanian Code of Civil Procedure (Law no. 134/2010 of the Code of Civil Procedure, republished in the “Official Gazette of Romania”, Part I, no. 545 of 3 August 2012 and entered into force on 15 February 2013) on the instruction payment special procedure, whereby the legislator establishes uniform rules for combating the late payment of certain amounts of money, bringing together the provisions previously established by the two laws, currently repealed (Government Ordinance no. 5/2001 and Government Emergency Ordinance no. 119/2007). When stating the conclusions of the study, the authors welcome the legislative solution and point out that the payment instruction procedure can be used concurrently with the small claims procedure (art. 1025 to 1032 Civil Procedure Code), as these two special procedures do not exclude each other.
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In this study, the author provides a critical analysis of the content of art. 2322 of the Civil Code that has entered into force on 1 October 2011, regulating for the first time, in terms of legislation, autonomous guarantee instrument of the letter of comfort. Given the lack of doctrinal explanations and of the Romanian jurisprudence in this regard, the author makes a comparative law analysis regarding the use of this instrument, employing as reference points the Common Law systems and Continental Law systems based on the existence of a Civil Code. This instrument is known since the early 1960s by the international transactions practice, but the corresponding case law is quite limited and in some legislation, although frequently used, letters of comfort are not subject to an expressis verbis legislative regulation. The author emphasizes the Romanian Civil Code modern nature together with the call for a consistent use, in practice, of this legal institution.
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The present study aims mainly to identify those wordings in Law no. 287/ 2009 on the Civil Code which apply to testamentary inheritance issues that have certain shortcomings, and to find, as much as possible, the best solutions for remediation thereof.
