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This study is dedicated to the Special Part of the Criminal Procedure Code, in terms of the amendments brought by Law No. 202/2010, with reference to criminal prosecution, judgment on the merits, ordinary and extraordinary means of challenge, enforcement decisions or special judgment procedures. The study contains equally an analysis of the new regulations introduced in the field of recourse in the interest of the law. The text comments concerning the referral of the case to another Prosecutor’ Office, the information of the next hearing date, the judgment in case of admittance of guilt, the limits of the recourse judgment, the procedure in case of review can be indicated as examples. For an easier understanding of the study, the sequence of the analyzed legal regulations complies with both the structure of the Criminal Procedure Code, and with the chronology of the texts of the amending laws. Otherwise, given the fact that the work is especially addressing practitioners in criminal law and in criminal procedural law and given the fact that, for reasons of economy of the publishing space, the amended or amending texts were only rarely and partially reproduced, authors believe that the latter should be concomitantly available for a complete understanding of the study. With special reference to the contents of the second part of the study, emphasis needs to be placed on the fact that the work tried to highlight both the progressive and positively innovating provisions in the criminal procedure, and certain errors, non-compliances or legislative omissions or potential lack of correlation with the constitutional provisions. CUMPĂRĂ ACUM -
Government Emergency Ordinance No. 71/2009, serially amended and supplemented by Government Emergency Ordinances Nos. 18/2010 and 45/2010 established that Court decisions that became enforceable until December 31, 2009 and that concern salary rights to the benefit of the personnel from the budgetary sector shall be paid by budgetary authorities and institutions as follows: 34% in 2012; 33% in 2013; 33% in 2014, of the value of the enforceable title. The author considers that Government Emergency Ordinance No. 71/2009 (as amended and supplemented) does not infringe Protocol No. 1 to the European Convention on Human Rights and Fundamental Freedoms, as well as the applicable jurisprudence of the European Court of Human Rights.
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Law no. 272/2004 regulated – in the aggregate – the legal regime of protection and promotion of the rights of children in Romania. In the research hereby, the author conveys some viewpoints on the rules of law mentioned in relation to the exercise of parental rights and responsibilities when determining the special protection measure of placement by the child protection committee, committee settled by the same law. -
The article presents the extended confiscation from the perspective of the Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Properties, supporting the opportunity of its transposition into the domestic law, considering justified the fact that the perpetrator of a crime is required to prove the illicit origin of products presumed to be connected with a crime of a certain seriousness, by reducing or reversing the burden of proof as regards the source of the properties held by a person convicted for an offense related to organized crime, under a special procedure established by law. -
In the current stage, the economic-financial crime represents the main factor through which the consolidated State budget or the special budgets are deprived of important financial sources. In this article, the author has intended to make an analysis of the tax evasion crimes committed by withholding and not paying to the State budget, within the legal periods, the amounts representing taxes or withholding taxes, with direct consequences both on the budgetary resources and on the social insurance rights of the employees.
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Starting from the provisions of art. 51 of the Constitution of Romania (regulating the right to petition), of the Government Ordinance no. 27/2002 (ordering the public authorities and institutions to solve the petitions of citizens within 30 days after the date of their registration), corroborated with a series of provisions of Law no. 554/2004 on administrative claims, also taking into consideration the case law in the matter, the authors examine in detail the regulations in this field and, in the end, correlating all these facts, they tend to draw conclusions in the field examined.
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Taking into consideration that this is a matter in which there are serious controversies in the doctrine and multiple contradictory solutions in the legal practice, this feature (unity or plurality of passive subjects) should not be mentioned as a constitutive feature of the continued crime, thus suggesting the idea that the solution had the adhesion of the entire doctrine. In this respect, the solution of the criminal law in force, which defines continued crime without adding the mentioned feature, seems fairer to us than the solution provided by the new Criminal Code.
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The author, starting from a personal opinion, expressed in a previous study (published in the year 2000), namely that the employment relationship of the public servant represents a typical form of a legal employment relationship, a relationship that, although different from the individual employment contract (the archetype of the legal employment relationship), is not yet essentially different from the latter and, consequently, from a logical and legal point of view, the employment relationship of the public servant is a basic component of the labor law (legislation), emphasizes afterwards that, in recent years, one can note, from the legal point of view, a continuous reduction of differences between the legal employment relationship of employees and that of public servants. Further on, the author presents the typology of the current legal employment relationships, namely: the legal relationship of employees (generated by the conclusion of the individual employment contract, regulated by the Labor Code); the legal employment relationship of public servants (generated by Law no. 188/ 1999 on the Statute of Public Servants or by some statutes regarding special categories of public servants such as, for instance, police officers, diplomats and consuls, customs personnel etc.); the legal employment relationship of career military personnel (non-commissioned officers and officers – Law no. 80/1995); the legal relationship of persons holding a public office position; the legal employment relationship of magistrates (whose statute is subject to Law no. 303/ 2004); the legal employment relationship between the cooperative company and the cooperative members (Law no. 1/2005). As regards this typology of legal employment relationships, the author believes it is fundamentally erroneous to limit the object of labor law exclusively to the legal employment relationship of employees (regulated by the Labor Code), and firmly believes that all the above-mentioned legal employment relationships are, in his monist vision of the labor law, components of the Romanian labor law, whose summa divisio is made of the common labor law (regarding the legal employment relationship of employees, based upon the individual employment contract that is regulated mainly by the Labor Code provisions) and, on the other hand, of the special labor law (comprising the legal employment relationships of civil and military servants, persons holding public office positions, magistrates and cooperative members), a special labor law focused on regulations other than the Labor Code, but for which the Labor Code still represents common law. -
This study deals with the issue of forced distinctiveness, a legal mechanism that is essential for the matter of the trade mark law, but which is not generally thoroughly treated in the Romanian specialized literature, despite the rich case law it generates. Forced distinctiveness refers to the situation in which a sign that is likely to be represented graphically, but which initially lacks a distinctive nature, acquires distinctiveness following its use. Throughout the study, the author examines the legal nature of forced distinctiveness, from the point of view of the Romanian legislation and the European regulations, with references to the essential case law in this matter. Thus, in the first part, the author reviews the signs likely to acquire distinctiveness by use and in the second part, he examines the conditions of forced distinctiveness, as well as the criteria on which the assessment of the competent authority is based. -
The author shows that, in the new regulation, the essential characteristic regarding the social danger entailed by the criminal action committed was removed from the definition of the crime. Instead, two new essential characteristics were introduced, namely: the action committed, which is provided by the criminal law, is unjustified and not imputable to the person having committed it. Also, reference is made to the correlation between the institution of the action provided by criminal law and the institution of the crime and the essential characteristics of the crime are examined.
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Starting from a decision made in the interest of the law by the High Court of Cassation and Justice, which stated that the terms regulated in art. 278 para. 3 and in art. 2781 para. 2 of the Criminal Procedure Code, for exercising the remedy of complaint against resolutions or ordinances of the prosecutor for not sending a case to justice, can only represent peremptory procedural terms, the article analyses the consequences on the fairness of the procedure of non-settlement by the hierarchically superior prosecutor, within the deadline provided by law, of the complaint against the solution of not sending a case to justice, reaching the conclusion that the legal text under review should be reconfigured, either by way of clarifying the nature of the term provided in art. 277 of the Criminal Procedure Code as a lapse term, or by way of linking the term referred to in art. 2781 of the Criminal Procedure Code to the time of communication of the solution of the hierarchically superior prosecutor, to avoid “deviations” from the fairness principle. -
In this study, the two authors examine certain particularities of the commercial mandate contract existent between the managers of joint-stock companies and the given companies, with the specification that the term “managers”, in the above context, applies exclusively to the managers referred to under art. 143 paragraph 1 of Law no. 31/1990 regarding companies, republished on 17 November 2004 (those whom the Board of Directors delegated the management of the company and who, as the case may be, can be appointed among the directors or from outside the Board of Directors), and not to members of the directorate (existent in joint-stock companies organized in dual system) or to “specialized” managers, who are not representatives of the social will, but run certain specialized compartment.
