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The study reveals, in its introductory part, some shortcomings of Law No. 8/1996 on copyright and rights related to copyright, in the field of audio-visual works, such as the contested definition thereof or the absence of definition of the audio-visual production contract definition, and puts forth its own points of view, likely to lead to the settlement of such cases. On the merits, the work depicts the characteristic features of the audio-visual production contract, its delimitation as to other types of contracts, analyses the Contracting Parties as well as the purpose and wording thereof, in terms of legal regulations and doctrinal interpretations. -
In the study hereunder, the authors analyse the wording of Article 209 para. (2) of the new Code of Civil Procedure (Law No. 134/2010, republished, enacted on February 15th, 2013), text according to which “if the claims put forth under the counterclaim also relate to persons other than the plaintiff, these will be summoned to Court as defendants”. The authors highlight that this text had no counterpart in the former Code of Civil Procedure (1865, reprinted in 1948) and emphasize positively the new regulation which extends thus the procedural framework.
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The aim of this paper is to identify how and if cultural diversity, as a fundamental and moral value of the EU, is effectively protected by EU law. I will start from the EU competences on cultural matters and try to find out if, while dealing with cultural issues, the EU is actually protecting its “unity without uniformity” and its “diversity without fragmentation”. The recent and stronger intervention of the EU in cultural matters, after Lisbon, raises questions as to its real aims, be it the building of a stronger and stronger “small common denominator” in cultural issues as well, by means of uniformity or the real protection of cultural diversity of its Member States. -
When the court of judicial review is vested with the settlement of the recourse against the court order under which the legal and the solid nature of the preventive arrest has been reviewed ex officio according to the procedure set forth by art.3001 of the Code of Criminal Procedure, the recourse should be settled before the expiry of the preventive arrest period, taken or extended by the judge subsequently. This review deadline is a bar period, not a recommendation one. In practice, it is found that the court decides in relation to the review of the legal and the solid nature of the preventive arrest upon the receipt of the file, many times on the last or penultimate day of the 30-day deadline of the preventive arrest. This situation occurs either due to the non-observance of the 5-day deadline by the prosecutor, or by the court itself, and consequently the court of appeal decides within a period of a few days following the expiry of the 30-day period.
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In the interpretation and unitary application of the provisions of art.251 of the Law no. 32/2000 regarding the insurance activity and insurance supervision, as subsequently amended and supplemented, corroborated with those of art.24 of the Code of criminal procedure, the High Court of Cassation and Justice, in the judgment in the interest of the Law no. 3/2010, decided that “in the criminal trial, The street victims’ protection fund has the capacity of a liable party from the civil point of view and may be obliged solely, but not collectively with the defendant, to pay the civil indemnifications to the persons injured in non-insured car accidents”. In the attempt to answer the question whether, in a criminal trial, the defendant could be obliged to pay the civil indemnifications or whether the amounts paid as such shall be determined in the exclusive charge of The street victims’ protection fund, the author of the article promotes the idea according to which the main obligation to repair the damages shall belong, further, to the defendant, in his capacity as the offender of the illegal deed generating prejudices, and the existence of a special regulation set up for the purpose of protecting the victims of the car accidents, could not operate as a reason for holding harmless from the civil point of view. Considering that in the light of the present Civil Code the obligations of the defendant and of the above-mentioned fund keep their nature of in solidum obligations, the author considers that from the operative part and the considerations of the judgment in the interest of the Law no. 3/2010 of the High Court of Cassation and Justice, it does not result that The street victims’ protection fund shall be exclusively obliged to pay indemnifications in the criminal trial, as the law-related questions which have generated a non-unitary practice pertain only to the capacity of a party in a lawsuit of this fund and to the possibility to oblige him, collectively with the defendant, to pay indemnifications.
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The objectives of the research contained in the article consist in the examination of the immunity and of the criminal liability of the Romanian parliamentarians over the time according to the rules of the Romanian law, with a focus on the present provisions. The results of the research shall be summarized to the need for keeping the parliamentarians’ immunity also in the future provisions of the constitutional and criminal law, especially on the absolute immunity regarding the opinions and the votes expressed in exercising the mandate granted by the poll. Likewise, the author considers that a certain partial immunity has to be kept as well, as regards other actions of the criminal procedural law, such as: the inquisition, the detention, the attachment and the arraignment. The paper may be useful to the theoreticians, practitioners, as well as to the constituent legislator, considering the need for the amendment and supplement of the present fundamental law. The value of the article consists in the examination of the constitutional and criminal provisions regarding the criminal liability of the Romanian parliamentarians, as well as in the critical opinions and the filed de lege ferenda proposals.
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The various methods and means used by the offenders committing murder for the purpose of getting away of the victim’s body subsequent to its commitment, provide the authors the occasion to issue certain comments related to the constituent content of the grave violation offence set forth in art 319 of the Criminal Code, in the manner of a body profanation, based upon a non-unitary judicial practice despite the advance of a solution within a recourse in the interest of the law.
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The crime committed with two forms of guilt, as a form of the legal unit of the crime, has given rise over the time to different controversial debates due to its mixed structure. A special place is held by the possibility of the secondary party’s existence, this possibility being accepted by most of the authors, as well as unanimously in the judicial practice. The authors of this paper developed for the first time three conditions of the secondary party’s existence to the crimes committed with two forms of guilt for retaining this form of participation easily in the future judicial practice. The non-fulfillment of any of the described conditions produces different legal consequences for the participants; however, the detention of the secondary party to the crime committed with two forms of guilt shall be excluded.
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Audit services is based on two premises: (i) companies must be able to choose their auditors according to their needs and at a reasonable cost and (ii) investors must be able to rely on an independent audit opinion based on an audit of high quality before investing in a company. It is in the public interest to ensure a sustainable audit function and, consequently, a competitive market for audit firms. Usually, a person invests in a company only once, in advance, has analyzed an audit report relating to the financial condition of that company. If, then, there is a failure of the enterprise (such as eg bankruptcy) that has earlier cases and unidentified audited by the auditor in place its civil liability issue. The question is to set a limit on the civil liability of auditors so that, on the one hand, to ensure fair compensation to those injured (investors), and on the other hand, auditors to take such risks reasonably.
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In this paper, the author reaches the conclusion according to which in the Romanian law, in principle, the parties’ inequality, in the mater of the transaction agreement, shall not be sanctioned, just as the cancellation of such injury agreement is not admissible. Despite all these, a transaction agreement concluded as a result of an economic constraint may be cancelled if the existing necessity conditions are met, and the disproportion affecting the contractual performances is unjust, illegal; according to this last aspect, the extent to which one of the parties misuses the economic dependency of the other party for the purpose of getting an undue benefit, shall be relevant.
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The provisions of art.1538 para. (1) of the new Civil Code define the criminal clause as being that according to which the parties set forth that the debtor undertakes to pay a certain allowance in case of the non-performance of the main obligation, and para. (4) of the same article sets forth: “the creditor may request the performance of the criminal clause without the obligation to prove any prejudice.” In order to grant the criminal clause, it is necessary to meet the following conditions: the existence of a criminal clause validly established, the non-performance, the inadequate performance or the delay performance of the contractual obligation, the debtor’s fault and his putting in default or being in default de jure. At the same time, the penalty cannot be requested if the performance of the obligation has become impossible for grounds which are not imputable to the debtor, such as the force majeure, the act of God, the deed of the victim or of a third party.
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In the regulations of the new Criminal Code, the legislator has not opted for a limited criminal liability of the legal entity, but for a general liability which may result because of the commitment of any criminal offence. Except the state, the public authorities and the public institutions which carry on any activities not representing the subject matter of the private field, the other legal entities may hold the capacity of active subject, no matter the nature and the seriousness of the committed criminal offence. The criminal liability shall be laid upon the legal entity only when the respective entity having a position of management, provision, decision etc. commits the deed set forth by the criminal law in carrying out the business line or in the interest or on behalf of the legal entity. In case of committing a deed set forth by the criminal law, both the criminal liability of the legal entity and of the natural person who contributed to its commitment or only of one of these two categories of persons.
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The paper examines the trust, a newly regulated institution in the content of the Romanian Civil Code (Law no. 287/2009) into force from 10 October 2011. The author formulates any critical remarks about the way in which the legislator defined the trust agreement, makes a comparison between the trust and the other similar legal institutions and highlights the specific elements of the parties and the content of the trust agreement. A special place shall be granted to the analysis of the fiduciary capacity, of the liability, of its obligations and relationships with the other persons, as well as to the analysis of the ways in which the trust agreement shall be terminated. The author formulates numerous de lege ferenda proposals as well, intended to align the legal rules in the matter with the objective legal reality.
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Following the effective date of the Civil Code (Law no. 287/2009, as republished) as at the 1st of October 2011, which repealed the Family Code, and the adequate amendment and of the Law no. 119/1996 regarding the civil status acts, as republished, in this paper the author examines the legal provisions regarding the effects of the dissolution of marriage by divorce, making certain references to the late relevant case law of the courts of law. This paper examines mainly, the legal provisions regulated by articles 382-404 of the Civil Code.
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This paper makes a detailed examination of certain essential provisions in relation to the preparation of the contract. The examination is focused especially on the novelty issues entered by the Law no. 287 of 17 July 2009 on the Civil Code which repealed the Civil Code of 1864 into force until 30 September 2011. The author proposed an examination based upon rigor and objectivity in his attempt to understand the true meaning of the provisions of the new regulations. To this end, the doctrine and the case law in the matter are taken into consideration, and especially the solutions for each issue under discussion are filtered by the domestic and external case law. Likewise, references are made to the legislations of other states, which represent sources of inspiration for the editors of the new Civil Code, for the purpose of understanding accurately the provisions related to the conclusion of the contract. At the same time, certain debates of the doctrine and case law are briefly examined as regards the interpretation given to certain provisions introduced in the new Civil Code and, as the case may be, a critical analysis is carried out as well, in relation to these issues.
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The article aims to review a recent and very controversial decision of the Appellate Division within the International Criminal Tribunal for the former Yugoslavia, dated November 16th, 2012, under which were acquitted two Croatian generals, notorious figures of the civil war in the former Yugoslavia, for several war crimes and crimes against humanity, in a surprising manner since it abolished entirely the decision passed by the Court of First Instance, that had indicted these defendants, and gave special interpretations to a number of institutions of law, in respect of which was already crystalized a constant judicial practice of this Court. -
In a period of significant turmoil in the judicial system, both at the institutional and at the conceptual level, marked by severe controversy rather than by the unity of opinion, re-discussing the constitutional positioning of the Prosecutor has become a common theme. Hierarchy is interpreted as a by-product of the political influence, and independence as a form of undermining the unity of action. The study seeks to demonstrate that the principles of subordination and independence are consistent with the organisation and functioning of the Public Ministry system and that these are not antithetical, but antinomical principles. Their concurrent operation is a dominant trait in other judicial systems in European countries.
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The study hereunder provides a succinct summary of the case law of the European Court of Human Rights in the field of the right to marriage, or more specifically in the field of restrictions on the right to marriage. In this respect there are examined: the right to marriage of convicts; marriage of transsexual persons; same-sex marriage. Finally, in light of the case-law of the ECHR, the author concludes that are consistent with this case-law the provisions of the new Romanian Civil Code, which entered into force on October 1st, 2011, under which marriage may be contracted only between a man and a woman, marriage between same-sex persons being prohibited, while marriages between same-sex persons, contracted abroad, by Romanian citizens or foreigners are not recognized in Romania.
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The author analyses the regulation of the legal relationship emerged from the creation of a topography of semiconductor product, both from the viewpoint of compliance with the norms of legislative technique and from the perspective of the shades of interpretation of the legal norms in the respective space. The study systematizes the issue of the moral and patrimonial rights of the limits of making use of these rights and of the specific obligations of the owners of the topographies of semiconductor products. There should be noted the multiple de lege ferenda proposals meant to eliminate the chaotic image of settling the norms and to help at establishing a legal physiognomy that should induce rigour and balance in the field of the legal relationship emerged from the registration of the topographies of the semiconductor products.
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In the study hereunder, the author makes some considerations regarding the patrimonial liability of public law legal entities for their offence of issuing injurious administrative instruments. In this regard, it is concluded that the identification of public law legal entities is essential, since only these may be liable against the prejudiced creditor, the public authorities issuing the injurious administrative instrument lacking legal personality cannot being patrimonialy held liable against the prejudiced person. As for the legal nature of liability, this is a special subjective liability (if the administrative instrument is illegal) and, respectively, unbiased liability, if the instrument causing prejudices was issued through an illegal administrative instrument.
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After the entry into force of the Civil Code (Law No. 287/2009 republished) on October 1st, 2011, which repealed the Family Code, and the corresponding amendment of Law No. 119/1996 concerning civil status acts, republished, the author examines in this study the legal provisions relating to the dissolution of marriage through divorce by administrative and notary procedure governed by Articles 375-378 of the new Romanian Civil Code.
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In the study hereunder, the author, making a thorough analysis of Article 1856 under the new Romanian Civil Code, infers that, although the marginal name of this text is called “the direct action of workers” (who have entered into an agreement with the works contractor), which would create the impression that only these may bring such action, in reality, active procedural legitimation to take the legal action in question also has the legal person acting as a subcontractor, and not only the individual workers who have contracted with the contractor.
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Legal issues of the contribution of spouses’ joint property to company’s establishment, the legal regime of shares acquired as consideration for this contribution, as well as the impact of the (Romanian) Family Code (effective during the period February 1st, 1954 - September 30th, 2011) and the Companies’ Law No. 31/1990 generated lots of controversy in the Romanian doctrine and jurisprudence between 1990 and 2011. With the enactment of the new Civil Code (Law No. 133/2009, republished, effective since October 1st, 2011) some of these controversies have been fully clarified. However, a good portion of them still exist today, generating further such debates and controversies. Such being the case, through this extensive study, the author examines, globally, the current legal regime of spouses’ joint property upon its impact with the Law No. 31/1990, examining, therefore, a series of questionable and controversial issues arising from the interference of legal regulations on the spouses’ joint property in light of the Romanian new Civil Code with the provisions of the Companies’ Law No. 31/1990, ultimately advancing several de lege ferenda proposals, for the settlement of all controversies arising from the impact of the two laws in question (the new Civil Code and Law No. 31/1990).
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The author explores, in the study hereunder, an unusual provision in the matter of arbitration proceedings and that relate, essentially, to putting forth arbitration awards which ascertain or establish real rights to courts or the notary public. This provision was reintroduced in the new Code of Civil Procedure and is aimed at obtaining a court order or an authentic notarial instrument. The aforesaid regulation is criticized by the author, grounded by the fact that it flagrantly transgresses the procedural provisions that assign to the arbitration award the same effects as a court order, it being at the same time mandatory. Additionally, the author notes the theoretical and practical difficulties arising from the procedural rules under review. In the author’s view, such a regulation tends to turn the notary public into a jurisdictional authority. The author concludes that a more rational regulation would be to exempt actions relating to real rights from the jurisdiction of the arbitral tribunal.
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Transmiterea actului administrativ sancționator prin fax îndeplinește, în principiu, rigorile procedurale referitoare la comunicare, aceasta putând fi circumscrisã modalitãții la care se referã art. 86 alin. (3) teza finalã din Codul de procedurã civilã: „alte mijloace ce asigurã transmiterea textului actului și confirmarea primirii acestuia”. -
The study focuses on the analysis of the norms that regulate the subjects and the object of the protection of the topographies of the semiconductor products from the perspective of the Law no. 16/1995 with the further modifications and of the respective regulations from the Civil Code (Law no. 287/2009). The author reveals some aspects that were incoherently or ambiguously regulated as regards the approached topic and highlights the absence from the content of the special law (Law no. 16/1995) of some provisions misplaced in the Norms of application of this law. At the same time, in order to avoid the confusions in the analyzed case, the author formulates de lege ferenda proposals, in the view of eliminating the identified legislative imperfections.
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Based on the “judges dialogue” concept (institutionalized communication between the judges of various courts and levels of jurisdiction), the above study authors extrapolate this concept by mainly analyzing the forms of this “dialogue” between the 18 existing Constitutional Courts from as many countries of the 28 European Union Member States.
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The study deals with the directions of the very probable, and at the same time, the possible review of the Constitutional Court. The starting point in this analysis is to identify the Romanian specific in the control of constitutionality of the period before and after the Revolution of December 1989, compared to models offered by other member countries of the European Union. The review of criticisms that have been made ”to the Constitutional Court and the solution chosen by the Constituent Assembly of 1991 will lead in the final part of the study to the drafting of the possible solutions to be considered by the future constitutional review to make the constitutional justice in Romania more legitimate and more effective.
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Along with punishments and educational measures, safety measures are part of the broad criminal sanctions category; however, the latter have a mostly preventive purpose, which is to prevent committing new crimes or other offenses provided by the criminal law. Special confiscation is a safety measure whose legal content is patrimonial, as it concerns certain assets related either to the committed deed or to the offender and which, if further left within the factual and legal circuit, could be used to commit new offenses provided by the criminal law. The mainly preventive aim of the special confiscation safety measure is achieved by the fact that, under the conditions and within the limits prescribed by law, property shall pass free of charge into State ownership so that any person may no longer possess or use them to commit other offenses provided by the criminal law.
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Pursuant to the entry into force of the Civil Code (Law no. 287/2009, republished) on October 1, 2011, which repealed the Family Code, has also duly amended Law no. 119/1996 on Civil status documents, republished, and also the entry into force of Law no. 134/2010 on the Code of Civil Procedure, republished, the author examines in this study the legal provisions relating to dissolution of marriage by divorce through court proceedings, making several references to the courts ? recent relevant case law. Thus, this study examines the legal provisions regulated by Articles 373-374 and Articles 379-381 of the Civil Code and Articles 914-934 of the new Code of Civil Procedure.
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Given the overwhelming importance of the family home in family economic relationships, the Civil Code authors found it necessary to establish, as an absolute novelty, a special legal regime for various legal acts of the spouses in relation to this house and furnishing or garnishing property thereof. Also, the Civil Code provides a regulation derogating from the common law regarding the rights of spouses on the rented house and in connection with the award of the lease benefit and joint ownership of the house in case of divorce. The new regulations are designed to eliminate, mainly, the causes for various doctrinal interpretations and non-unitary jurisprudential solutions generated by the ambiguities and gaps of previous legislation in the matter.
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Recent legislative interventions have brought important innovations on mediation, and one of them has promoted the sanction of dismissing the claim as inadmissible in case of claimant’s failure to observe the obligation to participate in the briefing on the advantages of mediation. The author determines the conditions for applying this procedural sanction, which he considers extremely severe and even excessive. Inadmissibility for not participating in the briefing is being also examined in the light of the provisions of art. 21 of the Romanian Constitution, regarding the free access to justice and the provisions of art. 6 of the (European) Convention on Human Rights and Fundamental Freedoms. Secondly, the author notes that the sanction of inadmissibility applies only to the claimant. He believes, however, that the respondent may be subject to a judicial fine should he/she fail to appear in the briefing, according to Art. 187 item 1 letter f) of the new (Romanian) Code of Civil Procedure entered into force on February 15, 2013.
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1. ALEXE, IRINA – Aspecte privind mobilitatea înalților funcționari publici reflectate de jurisprudenþa instanțelor din România, în „Revista de drept public” nr. 1-2/2012, p. 90-102. Autoarea, în urma analizei reglementãrilor în vigoare și a jurisprudenței în domeniu, face urmãtoarea propunere de lege ferenda: se apreciazã ca fiind judicioasã introducerea formulãrii “principiul mobilitãții”, cu consecințele de rigoare, în primul rând aceea de a stabili un cadru programat întemeiat pe criterii clare și coerente în aplicarea principiului mobilitãții. -
Drept penal și procesual penal CERERE PRIVIND SESIZAREA CURȚII DE JUSTIȚIE A UNIUNII EUROPENE PENTRU PRONUNȚAREA UNEI HOTÃRÂRI PRELIMINARE. INADMISIBILITATE. În conformitate cu dispozițiile art. 267 paragr. 1 lit. a) si b) din Tratatul privind funcționarea Uniunii Europene, Curtea de Justiție a Uniunii Europene este competentã sã se pronunþe, cu titlu preliminar, cu privire la: a) interpretarea tratatelor și b) validitatea și interpretarea actelor adoptate de instituțiile, organele, oficiile sau agențiile Uniunii. Prin urmare, cererea privind sesizarea Curții de Justiție a Uniunii Europene pentru pronunțarea unei hotãrâri preliminare, referitoare la interpretarea unui act al Consiliului Europei, cum este Convenția penalã privind corupþia, adoptatã la Strasbourg la 27 ianuarie 1999, iar nu a unui tratat al Uniunii Europene sau act al instituțiilor, organelor, oficiilor sau agențiilor Uniunii Europene, este inadmisibilã.
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1. Achitare nelegalã. Gradul de pericol social al unei infracțiuni. În cazul în care legea prevede, în mod expres, cã o anumitã faptã prezintã pericolul social specific unei infracțiuni, în orice condiții de comitere, instanța nu poate pronunța o soluție de achitare și de aplicare a unei sancțiuni cu caracter administrativ.
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International treaties on human rights are, in relation to the common law, the most important human rights source of international law. In terms of geography, the international treaties under the cited matter are divided into treaties with universal vocation (UN system) and regional international treaties (European regional level, Inter-American, African and so on). In this study, the author refers to the specificity of the conventional sources within the Inter-American and African system, the Arab and Islamic world and within the CIS area.
