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This study first analyzes the amendments brought to the offence provided in Article 141 of the Law No 8/1996 by the Law No 187/2012. The author emphasizes the non-correlations of the incrimination with the moral copyrights which it protects, as well as the lack of clear and precise wordings, which should exclude any ambiguity in the drafting of the incriminating rules. The analysis of the offence provided in the special law is connected to the provisions in the matter contained in the Criminal Code, as well as to the doctrinaire opinions expressed in the field. The critical remarks expressed by the author concerning the meaning of legal rules are intended to be impulses addressed to the legislator to correct the drafting of texts, in order to achieve the desideratum of compliance with the requirements of accessibility and foreseeability of the law for its addressees. -
In this article the author expresses his opinion according to which the provisions of Article 10 of Law No 187/2012 and of Article 39 (1) b) and c) of the Criminal Code are contrary to the Constitution of Romania, republished, as well as to the European standard in the matter, namely the case-law of the European Court of Human Rights.
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The Collective labour contract unique at national level for 2007–2010 was undoubtedly a point of reference in the matter of collective negotiation from Romania, because its contractual clauses established the qualitative accumulations gathered during the conclusion of the collective labour contracts unique at national level, starting with the first contracts concluded after the entry into force of Law No 13/1991 in 1991. Having in view that, under the influence of the Law No 62/2011 (of the social dialogue), the conclusion of the Collective labour contract unique at national level is not permitted, the useful clauses of the mentioned collective labour contract can no longer be applied. In this study it is proposed the emphasis of the essential clauses of the Collective labour contract unique at national level for 2007–2010 and the formulation of a de lege ferenda proposal for their inclusion in the labour legislation.
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The author raises for discussion a series of legal issues related to the proper interpretation and application of two cases of cessation of the individual labour contract, regulated by the Labour Code, namely: – the cessation de jure of the individual labour contract pursuant to Article 56 (1) c) of the Code (cessation de jure on the date of the cumulative fulfilment of the standard age conditions and of the minimum contribution period for the compulsory pension); – the dismissal determined by the dissolution of the position held by the employee (Article 65 of the Labour Code).
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The issue of blank bill of exchange titles has always been a subject that has opened the path for debates and controversies, being always of present interest. The interest of clarifying this legal figure is not only a theoretical one, but also a practical one, the blank promissory note being a means of security frequently encountered within the credit contracts concluded by banks. The advantages conferred by the blank promissory note, consisting in the easy way of establishing the title, the flexibility of its content from the perspective of its possibility of filling in, the rapidity of its conversion into a title that can be subjected to enforcement, the restriction of the debtor’s possibilities to contest it and the celerity of the procedure for settlement of such disputes, reflect undeniable arguments for the use of such a legal instrument in the professionals’ practice. This study aims to emphasize certain aspects related to the issue of the blank promissory note, its guarantee and the defences of issuer and of the guarantor of the blank promissory note within the enforcement of the bill of exchange, also with reference to the case of entry into insolvency of the issuer.
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In this study it is examined the legality of the control by the Court of Audit in the matter of public procurement provided that the legislator has conferred the jurisdiction of verifying the procedure for the award of these contracts to other specialized public authorities, and has conferred to the Court of Audit powers of general control on the manner of formation, management and use of the public financial resources. Taking advantage of these control powers with a wide range of coverage, the Court of Audit has extended, unlawfully, through its own regulations, this control over a specialized field, respectively that of the procedure for the award of public procurement contracts, overlapping the control exercised by other administrative authorities and affecting the stability of the legal relations arising from these contracts. That is why it is proposed the legislator’s intervention for the express regulation of the control powers of the Court of Audit in the matter of public procurement, the conditions and limits of this control, in order to avoid the parallelism and the conflict of jurisdiction between this public authority and the other specialized administrative authorities in the field.
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Recently (re)invented (2005) by the Italian and North American law schools, quickly developed and initially submitted as a „science a little bizarre” (J.-B. Auby, 2007), the global administrative law is one of the legal results of the phenomenon of globalization. Introducing an increasing porosity of the borders, and also a considerable development of the functions of the non-state actors, increasingly diverse and numerous, globalization creates new phenomena of adjustment, involved in the development of transparency and that contribute to the accountability of each intervener on the supranational stage. This is the background of the emergence of a global administrative law, based on a new and systematic analysis of the supra- and trans- national phenomena, mostly heteroclite in appearance. In only a decade, around these precepts, an authentic school of thought has been crystallized, developed especially in common law doctrine, less exploited in French doctrine, and its presence finding its beginning in the Romanian doctrine by this study.
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The former regulation – the Law No 85/2006 – did not define the principles underlying the application of the insolvency procedures, these being identified, explained and developed by the legal doctrine. The 13 principles provided by the Law No 85/2014 are applicable both to the procedures for preventing insolvency and to the insolvency procedures. The principles are applied by the bodies involved in the procedure, in the absence of some express provisions, which regulate some specific situation, or are used for the interpretation of an unclear text. Defining the principles is extremely important, the practice following to prove their usefulness, where the regulation is lacking or is unclear. This study aims to analyze comparatively the principles stated by the legal doctrine in the ambiance of the provisions of the Law No 85/2006, as well as the principles provided by Article 4 of Law No 85/2014, with special regard to the principle of maximizing the degree of realisation of assets and of recovery of claims.
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In this study, the author makes an analysis – partly critical – of the provisions of Article 2358 (1) and (2) of the new Romanian Civil Code referring to the assignment of the mortgage and of Article 2427 of the same Code regarding the change in rank of the mortgage. Although the author appreciates, in general, as positive the regulations of the new Romanian Civil Code related to the assignment of mortgage and to the change in its rank, separately from the claim which it guarantees, nevertheless, in the conclusion there are retained a number of shortcomings in the drafting of the mentioned texts, for which reason several de lege ferenda proposals are made.
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The author, by accurately examining Book IV of the new Romanian Civil Code (regarding the inheritance and the liberalities), entered into force on 1 October 2011, notes that, as a rule, like in the previous Civil Code of 1864, there are some more important institutions of successoral law which, in his opinion, may be considered controversial (questionable), inopportune or unclear such as, for example: – the notions of „heir”; „successor”; „inheritor”; – whether the status of heir is affected or not by disinheritance or by the waiver of inheritance; – whether the contractual appointment and the preciput clause are two separate legal institutions or not; – whether the successoral reserve has an individual or collective nature; – whether the prohibition of the (mutual) consummated will is opportune or not; – whether the successoral option is always a disposition act or not; – the inopportunity of the multiple vocation to inheritance; – the questionable nature of the utility of the „seizin”.
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In this study the authors examine, rather exhaustively, the problems of regulating the submission of the written notes by the parties, namely: both the „common law” in the matter [Article 244 (2) and Article 394 (2) of the new (Romanian) Civil Procedure Code] and a series of special provisions in the field, included in the same Code [Article 244 (3); Article 244 (4); Article 222 (2); Article 383], and finally, after examining the legal consequences of the non-compliance with the mentioned rules, they formulate a series of interesting conclusions with respect to the topic discussed.
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In this study there are analyzed, in particular: – The influence of the European Court of Human Rights on the international movement of foreign judgments; – The enforcement of foreign judgments according to the new Romanian Civil Procedure Code; – The enforcement of judgments pronounced in a Member State of the European Union. -
In the current architecture of the Criminal Procedure Code, the regulation of the special methods of surveillance or investigation is based, from the perspective of the legislative technique, on a unified, foreseeable and predictable approach, eliminating the arbitrary. The special methods of surveillance or investigation are meant to contribute, by their results materialized in proofs, to proving in a direct manner the offences committed by the suspects or/and the defendants. The specificity and concrete particularities of the circumstances of some of the corruption offences, the offences assimilated to the corruption offences, as well as those of drug trafficking, trafficking in weapons, human trafficking, acts of terrorism, cybercrime, expressly enumerated within Article 139 (2) of the Criminal Procedure Code suppose that the probative includes, in a significant proportion, proofs obtained by way of special methods of surveillance or investigation.
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In this article, the authors examine the modality of conducting the procedure of replacement of the measure of preventive detention with the preventive measure of judicial control on bail, respectively if, according to the regulations of the Criminal Procedure Code, at the same time with the admission in principle the judge examines inclusively the grounds of such application or, on the contrary, it requires an initial examination strictly in terms of fulfilment of the formal conditions, finalised with the admission in principle and with fixing the quantum of the bail, and only in the second stage the examination of the application on its merits in terms of its rightfulness. Likewise, there are analyzed the legal remedies against the interlocutory judgment of admission in principle, respectively of the interlocutory judgment whereby the judge rules on the merits of the case. Finally, the authors present the contradictory solutions at the level of different courts of appeal and of the High Court of Cassation and Justice, analyzing inclusively the report drawn up by the supreme court, the Panel for the settlement of some points of law in criminal matters. Likewise, they formulate a series of de lege ferenda proposals, which aim to eliminate the contradictions between the different articles of the Criminal Procedure Code in this matter.
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The process of fighting against tax evasion has been and continues to be of particular importance for the Romanian legislator, due to the negative effects which this widespread phenomenon generates on the economic and social life, affecting the long-term development of a country faced with a fragile economy, still in transition. Despite the legislative developments of the last years, the normative framework in force continues to generate certain controversies, due to the different application and interpretation of the law, one of them being the modality to settle the civil action in the criminal trial, in case of tax evasion offences. Starting from the mentioned premise situation, the author of this study tries to provide an answer to one of the problems noticed in the process of interpretation and application of the law, related to the possibility of granting ancillary tax claims in the criminal trial. In this context, having regard to the legal framework in force, the author expresses his opinion on the impossibility to provide this kind of claims in the criminal trial, however expressing the opinion that the contrary solution, beneficial for the purpose pursued by the legislator, could form the object of legislative intervention, thereby providing a solid foundation for the solutions binding the author of the offence to pay the ancillary tax claims, even in a modality atypical to the tort civil liability, which serves as a model in the criminal trial.
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The offence committed during the fulfilment of the obligation loses its prohibitive character and thus re-enters the scope of licitness, becoming again compatible with the rule of law. This study examines thoroughly this notion not detailed in the new Criminal Code and intends to trace the outer limits to which this justificative cause is applicable, especially with reference to the categories exposed to such occupational hazards, such as the military, the police officers, the physicians and others.
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Within every form of legal liability, the act inconsistent with the legal rules for which liability is engaged is qualified expressly by law. This study aims to analyze comparatively the offence and the contravention, regarded in the light of recent legislative influences, appeared in the field of criminal law. In order to achieve this intended objective, the structure of the material elaborated by the author envisages the following sequence: the historical evolution of the offence and of the contravention; the definition of the offence and of the contravention; the system of punishments and the sanctioning regime; other aspects of the legal regime of the offence and of the contravention. The analysis covers the following: the stage of legislation, the point of view of the doctrine, as well as the case-law. Finally, there are presented the conclusions reached as a result of this approach and there are formulated de lege ferenda proposals.
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The article deals with the right of the pre-university teaching staff to the reimbursement of the equivalent value of the transportation from the domicile to the education unit, by private car, as well as with the possibility to grant in favour of the heirs, in the current regulation, the death aid due to them as a result of the death of the pre-university or university teaching staff.
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One of the situations in which the employer has the initiative to suspend the individual labour contract of the employee is the one regulated by Article 52 (1) a) of the Labour Code, i.e. during the preliminary disciplinary investigation. The employer may not exercise the right abusively conferred by the law, a fact which has been accepted both in doctrine and in case-law. In the absence of some clarifications within the content of the mentioned legal provision, some issues are raised in relation to the existence of a maximum duration of the disciplinary investigation and to the relevance in this regard of the period during which the decision to apply a disciplinary sanction may be issued, as well as in relation to the reasons likely to justify the decision to suspend the individual labour contract.
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This study analyzes a correlation between the Fiscal Procedure Code (the suspension of the extinctive prescriptions in tax matters) and a provision of the Civil Code (suspension of the extinctive prescription as long as the debtor deliberately conceals from the creditor the existence or the exigibility of the debt). The corroboration of these texts, implicitly imposed by the Criminal Procedure Code, raises a series of legal issues, which the author analyzes and, in her opinion, settles them as well.
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As the phrase „contractual balance” is too vague, for the purpose of clarifying its content, it has been used the notion of proportionality which is translated by a ratio between finality (purpose) and the means for achieving it. The proportionality, in its turn, does not consist in a mathematical relation, for this would mean ignoring the essence of the contract, namely the will of the contracting parties. So further specifications have been necessary in the sense that the proportionality is, at the same time, a measurement instrument and a sanction, namely a principle of fair-measure that puts into practice a finalised proportionality which relates to the legitimate objectives pursued or that should be pursued, which requires sometimes a strict proportionality, other times a relative proportionality, consisting in sanctioning only the obvious abuses. The proportionality contributes to the implementation of the principle of maintaining the durability and the efficiency of the contract, which favours the maintaining of the quality of the contract content, both at the time of its formation and for the duration of its performance, the sanction falling within the institution of lesion and, respectively, of unpredictability.
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In the absence of a meaning established by the legislator and in the presence of some modest doctrinary concerns, this study tends to be a contribution to the definition of „invention”, in general, and of „patentable invention”, in particular. Likewise, there are analyzed the „substantive conditions” for the patentability of the invention, the „elements” and the „scientific creations” which are not regarded as inventions, as well as the „unpatentable inventions”. In this context, there are also presented some situations where the provisions of the Regulation implementing the Law No 64/1991 on invention patents exceed the provisions of this Law and the legislative technique rules for elaborating the normative acts.
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In this article the author shows that justice is one of the pillars of the state of law, which ensures the implementation of the principle of the rule of law, the foundation on which this type of state is built and developed. Likewise, the author makes brief considerations on the notion of justice, as well as on its administration, especially on the independence of judges and on the impartiality of justice. The analysis takes into account both the European standard and the Romanian law in the matter.
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This paper aims to make an analysis of the judicial trials and applications related to the insolvency procedure, from the perspective of the subjects of law who have legal standing in these cases. Having in view general notions and principles of the lawsuit, as well as derogatory provisions provided by the current insolvency law, there have been analyzed relevant aspects referring to the notion of processual parties in these cases, the delimitation of the notion of participants in the insolvency procedure, the criteria for determining the parties and the subjects of law which may be parties in these cases. In relation to concrete applications, actions and contestations related to insolvency, there have been presented not only the manner in which participate in the trial the subjects of the procedure between which there are established litigious legal relations brought to justice (the debtor and the creditors), the judicial administrator and the judicial liquidator, but also the persons who, as they are not participants in the procedure, acquire processual legitimacy in certain determined litigations.
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This study is a brief essay on the right to one’s own image, as it is regulated in Article 73 et seq. of the Romanian Civil Code (the Law No 287/2009, republished on 15 July 2011 and entered into force on 1 October 2011).
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The current Romanian Civil Code (entered into force on 10 October 2011), unlike the previous Romanian civil legislation, regulates a new legal institution, namely the designation of the guardian of the child by his parent in certain situations (Article 114 et seq. of the Civil Code), apart from the appointment of the guardian by the court. Likewise, the Romanian legislation also regulates the designation of the representative of the natural person, under the special conditions of the Law on the mental health and the protection of persons with mental disorders No 487/2002 or according to the Law No 272/2004 on the protection and the promotion of the child’s rights (republished on 5 March 2014) assuming the child’s parents are working abroad. All these assumptions of designation of the guardianship of the child by his parent represent the object of analysis of this study.
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In this study, the author proceeds to an exhaustive analysis of the provisions of Articles 519–521 of the new Romanian Civil Procedure Code, which, for the first time in the Romanian legislation, establish „the referral to the High Court of Cassation and Justice for a preliminary ruling for the settlement of some points of law”, also in correlation with some legislations of other states or international jurisdictions in the matter.
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Prevederile art. 970 alin. 2 C.civ. obligă părțile să execute cu bună-credință nu numai clauzele expres stipulate în convenție, ci și pe toate cele la care obligă echitatea, obiceiul sau legea, după natura obligației. Astfel, în lipsa unei reglementări specifice antecontractului de vânzarecumpărare, dispozițiile alin. 2 al art. 970 C.civ. permit aplicarea dispozițiilor legale incidente vânzării perfecte unui antecontract, întrucât scopul urmărit de părțile din antecontract este încheierea unui contract numit, de vânzare-cumpărare, cu reglementare specială în Codul civil, iar conduita contractuală a părților trebuie să vizeze îndeplinirea tuturor obligațiilor specifice acestui contract numit. -
Conform art. 4251 alin. (1) C.pr.pen., calea de atac a contestației se poate exercita numai atunci când legea o prevede expres. Cu toate că dispozițiile art. 278 C.pr.pen. care constituie sediul materiei îndreptării erorilor materiale nu prevăd posibilitatea atacării încheierii cu cale de atac separată, sunt incidente dispozițiile art. 442 și 446 C.pr.civ. prin mijlocirea art. 2 alin. (2) din același act normativ, Codul de procedură civilă, prin generala sa aplicabilitate, reprezentând dreptul comun și în materie procesual penală. Drept urmare, atâta vreme cât legea procesual penală nu interzice expres posibilitatea atacării încheierilor de îndreptare a erorilor materiale pe cale separată, se poate apela la dispozițiile legii procesual civile care reglementează această posibilitate (cu notă critică).
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Today the philosophy of law can not be conceived outside the genesis, evolutions, paradigmatic hypostases, connections with the science, the knowledge and the world, of the fundamental conceptual couple philosophy – right. In the contemporary world we are witnessing spectacular changes of paradigm, of models, from the mechanical understanding of the legal order – specific to the modern period – to law as a complexity of high organization, open to others, to totality and to meaning. This means, among other things, the inherence of the philosophical dimension of the law. Therefore, the philosophy of law shall be established as a polycentric, integrative concept connecting together the durable classic axle, namely philosophy (expressed through excellence by its exemplary paradigms) – law (also expressed by its representative paradigms), to the contemporary network of knowledge, to the global society and to the contemporary man, in a specific, critical, open manner, always evolving.
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The paper aims to achieve a general view on the contemporary legal systems. In this respect, it is analyzed the Romano-Germanic legal system, the Anglo-Saxon legal system, as well as other traditional legal systems, such as Islamic legal system or Indian legal system. In addition to the theoretical approach, elements specific to the judicial system are covered.
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One of the main innovations introduced by the new Criminal Procedure Code is the possibility of concluding a plea bargaining agreement between the defendant and the prosecutor. Where there is evidence to confirm that the defendant is the perpetrator of the deed subject to the criminal trial, and he admits the allegations against him, it is possible for the defendant and the prosecutor to mutually agree on the punishment, the method of execution of punishment, as well as on all other aspects related to the criminal side of the case. In this case, the role of the court will be limited only to verifying whether the concluded agreement fulfils or not the conditions provided by law and to confirm it or to reject it. Through this new institution it will decrease the duration of trials where the evidence produced during the criminal prosecution phase proves almost unequivocally the commission of acts by the defendant, allowing the courts to concentrate their resources on the really complex cases.
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In this article there are examined comparatively the time limit and the grounds for appeal provided in the current legislation and the previous legislation, as well as the regulation in force. Likewise, within this paper there have been formulated a series of critical remarks, as well as de lege ferenda proposals, which have in view the amendment of the provisions of Article 410 (1) of the Criminal Procedure Code. The paper can be useful for the academic environment, for the practitioners, as well as for the legislator.
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After the author has analyzed in a previous study the need to take into account the legitimate defence in the field of cybercrime and has emphasized the aspects of the conditions of the attack, in this material there are analyzed the legitimate retaliation and the state of necessity. In this context, the author has tried to emphasize the problems that may arise in relation to the conditions relating to defence (legitimate retaliation), also seeking to provide a theoretical framework capable of providing applicability to the institution of self-defence. An important aspect analyzed in this paper has been the putative self-defence, which could be a key aspect in the discussion on the legitimate retaliation. Equally, it has been examined inclusively the institution of the state of necessity, also drawing conclusions on the relationship between this institution and the institution of self-defence.
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By the Law No 187/2012 for the implementation of the Law No 286/2009 on the Criminal Code there have been amended and supplemented some normative acts that include criminal provisions. In this context, this study examines the amendments brought by the mentioned law on the offence of unauthorized reproduction of software on computer systems, regulated by Article 1399 of the Law No 8/1996 on copyright and neighbouring rights. The author presents his personal and doctrinal points of view on the characterization of the constitutive content of the analyzed offence, as well as on the interpretation and on the application of the amending legal rules.
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The Ombudsman is a fundamental institution of the state of law, meant to ensure the protection of natural or legal persons against the abusive manifestations of the public authorities. In this context, this study aims to analyze the main problems arisen in the practice of exercising the powers of this autonomous administrative authority, envisaging, in particular: the scope of public authorities and of the administrative acts falling within the scope of activity of this authority; the procedure for exercising the action for administrative disputes by the Ombudsman. Likewise, following the analysis of these aspects, there are formulated de lege ferenda proposals.
