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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. -
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.
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Curtea Constituțională a pronunțat recent o decizie asupra constituționalității art. III, pct. a) și b) din Ordonanța de urgență a Guvernului nr. 70/2016 pentru modificarea și completarea Codului de procedură penală și a Legii nr. 304/2004 privind organizarea judiciară, admițând excepția în privința pct. b), cu opinie separată. Anterior și în mod similar, Curtea a pronunțat o decizie de admitere a neconstituționalității art. 27 din Codul de procedură civilă astfel cum fusese el interpretat de Înalta Curte de Casație și Justiție – Completul pentru dezlegarea unor chestiuni de drept1. Considerăm că ambele soluții ale Curții ridică probleme legate de efectele în timp ale unor decizii ale sale pronunțate anterior în aceeași privință, probleme la care, de altfel, face referire și opinia separată publicată la prima menționată, deși nu suntem întru totul de acord cu aceasta din urmă.
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The final table of claims is the result of the expiration of the time limit for contestations, without such a contestation being lodged or, as the case may be, the outcome of the solutions given by the courts after the examination of the contestations. In the final table there may be entered also the current claims, at the request of their holders, and this can no longer be contested for the usual reasons for which the preliminary table could be challenged. Instead, in compliance with Article 113 of the Law No 85/2014, the final table may be contested by any party concerned (so, not only by debtors or creditors), throughout the procedure (so not just 7 days after the publication of the preliminary table in BIP) for the discovery of a forgery, of a fraud or for an essential error in the drawing up of the table or for the discovery of some decisive titles, previously unknown (called, in practice, brevitatis causa „contestation for essential error”). We have pointed out that the current regulation reiterated the error in Article 75 of the old Insolvency Law No 85/2006, whereas it only refers to the recording in the table, and not to the omission to record in the table, when it regulates the objective of the contestation. Posting of the definitive table is an important landmark in the procedure, since a 30-day period is running therefrom during which a draft reorganization plan must be proposed, under the sanction of bankruptcy. The preliminary table of claims contains all claims accepted by the judicial administrator, as a result of the verification made under Article 106 of the Law. The claims arising before the opening of proceedings are recorded therein, both the ones overdue and the ones not due, pure and simple or conditional ones, as well as those in dispute (if these are known to the judicial administrator).
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Fără îndoială, după 2007, anul aderării României la Uniunea Europeană, unul din avantajele preluării în sistemul juridic național a unui set de reguli care funcționa de mai bine de 30 de ani la nivelul statelor membre ale Uniunii ar fi putut fi evitarea erorilor și disfuncționalităților care au marcat evoluția acestor reguli. Era de așteptat ca în materia achizițiilor publice erorile de aplicare a reglementărilor, care au fost corectate pe parcurs de Curtea de Justiție a Uniunii Europene, să nu mai fie reluate în aplicarea acestor reglementări în sistemul național. Cu toate acestea, de o manieră relativ nespectaculoasă, practica în materia achizițiilor publice reia o serie de erori legate de calificarea contractelor supuse directivelor în materie, deși acestea au fost clarificate de jurisprudența Curții de Justiție a Uniunii Europene.
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On the background of some possible controversies, the rational interpretation of Article 56 (4) of the Labour Code involves the solution according to which the conclusion of an independent individual labour contract does not take place, but the initially concluded contract of the employee is extended, with the approval of the employer. As a result, the cessation by law of the contract takes place at the time when one of the time limits agreed upon is reached: one, two or maximum three years.
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The study intends to make a comparative analysis of the legal provisions of the Romanian Civil Code from 1864, in relation to those of the current Civil Code, regarding the tort civil liability, highlighting similarities and differences between the two regulations, by presenting some novelty elements which the legislator brought to the current Civil Code. It was envisaged a historical presentation of the doctrinal conceptions regarding the civil liability, based initially on the subjective theory and the evolution towards the objective approach of liability, in the variants of profit risk, of the risk of authority and the risk of activity, by specifying the coexistence of the two foundations of liability, subjective and objective, and of the scope of each of them. Our attention is retained by the presentation of the foundation of civil liability in the system of national law, the elements of convergence and divergence between civil liability and contractual civil liability, the technical forms of tort liability, the liability for one’s own deed, the guilt and liability exonerating causes, the civil illicitness and the causes of removal of the illicit nature of the deed, the tort liability of the legal person, the novelties of the regulation of the liability for the deed of another (minors, persons under interdiction, the liability of the principals for the damage caused by minors) and the legal foundation of this liability, the liability for the damage caused by animals and the ruin of the edifice. It is also retained the new vision of the current Civil Code in the matter of liability for things, with special regard to the matter of collision of vehicles and the legal basis of this liability.
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The study addresses the issue of the role of the judicial power within the system of separation of powers in the state, as well as its interaction with the legislative power, respectively the executive power, mainly using the method of analysis and of the case study, respectively of the jurisprudential study. Starting from the necessity, justified in a democratic state, of the existence of a system of mutual control between the authorities called to exercise the power, the authors present the creative role of the judge, called upon to apply, by interpretation, his right and principles, to a situation of fact, pursuing the respect for citizens’ rights and freedoms. Certainly the necessity of limiting the abusive or arbitrary conduct in exercising the functions of any of the three powers of the state can only be achieved when mutual control is effective and guaranteed by the legal regulations, as well as by the institutional practice, based also on the principle of loyal collaboration between institutions and public authorities. The members of the judicial power must respect high standards of ethics and professionalism, and their independence and impartiality are guarantees of respecting their role in democratic regimes based on the principle of separation of powers. The paper presents aspects referring to the interaction of the judicial power with the legislative one and the executive one respectively, by analysing the relevant case law of the Constitutional Court, which has established the parameters of this relationship, so as to guarantee the respect for the functions assigned by the Fundamental Law to each power, respectively to respect the citizens’ freedoms and the prevention of arbitrariness in the exercise of power.
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Cybercrime has become a serious threat to the fundamental rights of individuals, to the rule of law in cyberspace and to the functioning of democratic societies. Cloud Computing provides several benefits such as increased flexibility, scalability and reduced cost. However, it also provides several challenges for digital forensics and criminal investigators. In an investigation involving Cloud Computing services, investigators may seek access to the data held on computer systems located in foreign jurisdictions, held by foreign service providers or where the physical location of the data is unknown. Despite a growing adoption of Cloud Computing, law enforcement agencies and the judicial system are unprepared to prosecute Cloud-based crimes. This article considers various forensic challenges for law enforcement in a Cloud Computing environment and discusses measures against cybercrime, involving electronic evidence given the transnational and volatile nature of electronic evidence. By focusing on problems and solutions we examine the whole extent of legal measures that need to be implemented.
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The Insolvency Code, in Article 65, provides as follows: „(1) The procedure shall be initiated on the basis of an application filed to the tribunal by the debtor, by one or more creditors, or by the persons or institutions expressly provided by the law. (2) The Financial Supervisory Authority files an application against the entities regulated and supervised by it, which, according to the data available to it, satisfy the criteria provided in the special legal provisions for opening the procedure provided by this Law.” As such, it can be said that the scope of the persons to whom it is recognized the right to refer the matter to the court is delimited by the legal provisions, excluding the ex officio referral to the tribunal, contained in the old regulation of the Commercial Code. The Framework-Law shows very clearly that the debtor in insolvency is obliged to submit an application to the tribunal in order to be subject to the provisions of this Law, within maximum 30 days of the occurrence of the state of insolvency, being able to come before the tribunal with such an application also the debtor for whom the occurrence of the state of insolvency is imminent (Article 66), any creditor entitled to request the opening of the procedure provided in this normative act against a debtor presumed to be in insolvency having the right to initiate, in its turn, an introductory application (Article 70). Given that the debtor himself is the most suitable person to know the state of insolvency or the imminent insolvency of his patrimony, it was normal for the legislator to admit that it had an important role in the initiation of the collective procedure. The creditors, not having the right to request the opening of the imminent insolvency procedure, but only for current (presumed) insolvency, could not act before a real and manifest imbalance was produced in the debtor’s patrimony, when the financial difficulties were already revealed by the inability to pay the due obligations.
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The present study analyzes how the trial procedure for the application for voluntary intervention was regulated by the Law No 134/2010 on the Civil Procedure Code and the arguments for which the author considers that it is not justified to change this procedure by the Law No 310/2018 for amending and supplementing the Law No 134/2010 on the Civil Procedure Code, as well as for amending and supplementing other normative acts. The result of the study is reflected in the opinion according to which the conclusion of rejection as inadmissible of the application for voluntary intervention had to be maintained in the form existing before the adoption of the Law No 310/2018, namely that it can be challenged separately. Thus, the conclusion of the admission in principle could only be challenged at the same time with the merits, whereas in the event that the application for intervention is rejected as inadmissible, the conclusion could be appealed within 5 days, which was running from ruling for the present part, respectively from the communication for the missing part. The legal remedy was only the appeal, if the conclusion was given at first instance, respectively only the review to the hierarchically superior court, if the conclusion was pronounced in appeal. The settlement of the legal remedy took place within a short time limit of no more than 10 days of registration, the file being submitted to the judicial control court in a certified copy for conformity with the original, within 24 hours of the expiration of the time limit. The legal remedy had suspensive effect, the examination of the main claim being suspended until the appeal is settled. By the Law No 310/2018 it was amended the court procedure, referring to the means of appeal that can be exercised against the conclusion through which the application for voluntary intervention was settled. In this regard, irrespective of the fact that the court admits or rejects the application, the conclusion can only be challenged at the same time with the merits. In this way, the potential intervener has to wait for the finalisation of the litigation to be settled before the first instance or before the court of appeal, in order to be able to benefit by his right. If the means of appeal exercised against the conclusion of rejection of the application for intervention as inadmissible, the judgment pronounced is cancelled by law, following that the case be re-judged by the court before which the application for intervention was formulated, which is usually the first instance, but, by exception, it may also be the instance of appeal. The resumption of the trial is made at the time when the admissibility in principle of the application for intervention is discussed. In the author’s opinion, by the re-examination at this point, the process is delayed, since all the procedural acts carried out must be resumed. Maintaining the possibility of separately challenging of the conclusion of rejection as inadmissible of the application for voluntary intervention, in the author’s opinion, was contributing to the unitary settlement of the litigation at the first instance, and by regulating some short time limits for the means of appeal, it was ensured the compliance with a reasonable time limit for the finalisation of the trial.
