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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. -
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.
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In this paper the author examines the legal regime of the plea of illegality regulated by Article 4 of the Law on administrative disputes No 554/2004, as this text has been rather recently amended by Law No 76/2012 for the implementation of Law No 134/2010 on the [new] Civil Procedure Code. In this regard there are examined: the definition and the legal nature of the plea of illegality, its features, as well as the conditions of admissibility of the plea of illegality.
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Currently, under the increasingly intense and diverse interactions between countries, due to the unprecedented mobility of individuals, in space, or to the dynamics of public international law, as such, (for example, in international human rights or international criminal law) the theoretical model that governs the relationship between international law and domestic law has become a topical one. In addition, the existence of several supra-state forms of cooperation, such as the European Union, bring into question the relationship that is being established, on the one hand, between the law of those forms of cooperation and the Member States' national law and, on the other hand, between the former and general international law. In this paper I will discuss the relationship between international law and Romanian domestic law, as regulated by Romania’s organic and constitutional provisions and taking due account of Romania’s EU membership. The paper is structured in three sections corresponding to the general theoretical approaches to the matter (Section II), the legal, institutional and scholars’ approaches (Section III) and conclusions and de lege ferenda proposals; the latter will address both the content of the regulations, as well as some aspects of legislative technique (Section IV).
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In the study with the above title, the author examines specifically the problems of the current regulation of the protection of competition on the internal market of the European Union, through the control of concentrations of undertakings, in the light of the provisions included in the Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of the concentrations between undertakings.
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The pre-contractual obligation to inform is one of the ethical instruments meant to ensure the durable and effective maintenance of the contract (contractual durability principle), a requirement which has acquired a considerable development owing to its functions: preventing a possible failure as concerns the maintaining of the durability and the effectiveness of the contract and building a contractual relation based on the active presence of the contracting parties. The provision of sufficiently accurate information will lead to making a decision to conclude or not the contract in full awareness of the facts. It is designed to extend also to the phase of contract performance, allowing the parties to think more deeply about the commitments they will make. But, in the pre-contractual phase, of negotiations, the future contracting parties only begin building a durable trust, which is achieved through dialogue and collaboration and which has normally extended also to the phase of performance of the contract. The pre-contractual obligation to inform tends to engage other legal means as well in order to come to decision-making in full awareness of the facts and in order to build, at the same time, a „bond of trust” intended to extend in time. Therefore, it is obvious the need to generalize this obligation, thus strengthening the coherence of rules (principle of coherence), this being achieved both by way of extending the application of the requirement of „good faith” and by special express rules specific to each category of contracts.
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This study falls within the so much present problems of civil liability of professionals for malpractice. Starting from the arguments of a jurisprudential solution concerning the lawyer’s liability for the damage caused to the clients or to the third parties, the article intends to present the regulation, the special conditions, the legal nature and the foundation of this hypothesis of liability. By her conclusions the author supports the idea that the civil liability of the lawyer is a separate and autonomous professional civil liability.
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Pursuant to Article 127 (1) of the new (Romanian) Civil Procedure Code, „If a judge has the status of plaintiff in an application for which the court where he pursues his activity has jurisdiction, he shall refer the matter to one of the courts of the same level located within the district of any of the courts of appeal neighbouring the court of appeal in whose district the court where he pursues his activity has jurisdiction.” After making a general analysis of the text, the author, contrary to some opinions expressed in the doctrine, considers that, for identity of reason, the text applies accordingly, and not only if the indicated situation exists in first instance, but also if that situation exists in appeal or in recourse, and this is for: identity of reason.
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The article deals with the problems of suspension of judgment by the Romanian court based on Article 413 (1) point 1 of the Civil Procedure Code, on the grounds of the existence of a judgment pending before a foreign court.
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Considered by the authors of the Civil Code of 2009 a „traditional reality in Romania”, currently the engagement has become a „legal reality”, being regulated by Articles 266–270 of the Civil Code. Without „applauding” or „disavowing” the appearance of this unusual legal institution, we find that the reactions of the specialised literature have remained at their „first steps”. However, they are mostly marked by theses from the French doctrine as well, provided that, paradoxically, the French Civil Code, even if it defines the engagement (Article 515–8), does not devote to it other legal rules as well. Wishing to be a contribution to the „continuing effort of interpretation”, this study is based, primarily, on the logical and legal, systematic and systemic analysis of the provisions of Articles 266–270 of the Civil Code.
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Modalitatea de dobândire a dreptului de proprietate asupra rețelei de distribuție a energiei electrice, prin edificare sau construire, pe un teren despre care reclamantul nu susține și nu dovedește că ar fi proprietatea sa, pentru a se putea prevala de accesiune și de prevederile art. 492 C.civ., nu se înscrie printre cele prevăzute de dispozițiile art. 644–649 C.civ. și nici de alte reglementări legale specifice domeniului de referință, pentru a dovedi calitatea de proprietar asupra respectivei rețele a unei persoane fizice care nu deține nici licență și nici capacitate energetică. În acest caz, pentru a putea reclama prerogativa de a-și exprima acordul la racordarea terților la rețeaua electrică, reclamantul trebuia, în lipsa oricărui titlu, să învestească instanța cu o acțiune în constatarea calității sale de proprietar asupra rețelei electrice, cu atât mai mult cu cât această calitate îi este contestată de partea adversă. (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 2476 din 27 iunie 2014) -
Prezentul comentariu este generat de o notă critică la Decizia nr. 3915/2013 a Înaltei Curți de Casație și Justiție, Secția a II-a civilă, pronunțată în Dosarul nr. 2342/111/20071, notă critică publicată pe site-ul Juridice.ro, în „Revista de note și studii juridice”, la data de 15 august 20142.
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In the matter of cases of application of the measure of preventive arrest, as in the case of other institutions, the new Romanian Criminal Procedure Code contains new regulations and takes over, in a limited extent, some provisions of the previous Criminal Procedure Code (of 1968). In this study, the authors analyzes the institution of preventive detention, with special reference to the cases of application of this measure, by presenting some critical issues and by proposing some improvements to the new regulation.
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This article presents the new criminal provisions relating to the cancellation and revocation in the cases of waiver of application of punishment, postponement of application of punishment and the suspension of the execution of the punishment under supervision. The author also proposes a new mechanism for the application of punishment if there is a concurrence between a cause of cancellation and one of revocation of the postponement of the application of punishment or of the suspension of execution of punishment under supervision.
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Given the importance that cybercrime is acquiring, the author has appreciated as being necessary to make an analysis on the applicability of self-defence and state of necessity in the context of cybercrime. Having as premise the necessity of justifying the retaliation in the virtual environment, the author has attempted to identify arguments in order to support the thesis according to which the self-defence and the state of necessity may find their applicability including in this area. Beyond analyzing the problematic issues related to this topic, we have tried, therefore, to emphasize the hypothetical situations in which a cyber (digital) attack is likely to give an outline to the state of self-defence or to the state of necessity.
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In the context of integration of Romania into the European Union and of the normative acts adopted by the Romanian legislator in order to ensure the compatibility of the internal law with the European Union law, the tax disputes and, in particular, tax administrative disputes are conferred a great importance. In the ambiance of the European rules and of our internal law, this study intends to analyze several aspects regarding tax administrative disputes, as well as the application of the principle non bis in idem in the matter of tax administrative disputes, in relation to the case-law of the European Court of Human Rights and of the European Court of Justice of the European Union.
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The professional civil liability insurance of physicians is perceived as an additional pecuniary charge of those who want to practice, however, given the increasing number of complaints against some acts of medical malpractice and the moral damages in high quantum granted by the courts to the injured parties, in reality it becomes a real means to protect the property of these professionals. The occurrence of an error in conducting the professional act is possible at any time, which is why a special emphasis is given to taking ex ante measures in order to manage the possible materialisation of an act of malpractice. Such a prophylaxis measure is the negotiation for concluding an insurance contract for professional civil liability, which provides protection for a wide range of risks, compensates several possible types of damage, establishes the limit of the insured amount as high as possible. The plurality of the professional civil liability insurances significantly increases the degree of patrimonial protection of the insured.
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This study analyzes the scope of application of the indirect action and of the Paulian (revocatory) action both under the influence of the Civil Code of 1864, as well as under the influence of the current civil legislation (the Civil Code of 2009). The study follows the practical application, specifically, of these actions to a variety of rights which might be exercised or revoked through them, also making reference to the specialised French doctrine. There are analyzed the specialised doctrine of our country, both current and older, as well as some judgments delivered in this matter by the law courts. There have been distinguished the novelties brought by the Civil Code of 2009, in the end making a comparative enumeration of the changes brought to these institutions by the new civil legislation.
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The principle of legal contractual certainty, as regards its component the „sustainability and efficiency of the contract”, is a fundamental principle of the contract law, which emphasizes the need to maintain the contract in the cases of partial nullity and which is dealt with under a double dimension: a quantitative one and a qualitative one. The quantitative dimension concerns the „continuity of the convention” in time and is manifested by a soft and extended duration. The qualitative dimension concerns also the context, i.e. the capacity of the contract to overcome the obstacles which the economic and social events can raise, arisen during performance of the contract. The study is focused on the applicability of the principle of contractual legal certainty both in terms of interpretation, as well as of validity and performance of the contract, with references also to the provisions from the draft European contract law, an action initiated by the European Commission.
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The article deals with the issue of joinder of executional files, making reference to the meaning of the syntagm „expenses incurred by the time of joinder”, to the possibility of reducing the court executor’s fee within this procedure, to the manner and to the time limit for contesting the interlocutory judgment of the court executor.
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This article aims to analyze a recent normative act through that were amended and supplemented the normative acts in matters of education, respectively, the Law on national education No 1/2011 and the Government Emergency Ordinance No 75/2005 on quality assurance in education. The approach is focused both on procedural aspects of the adoption of administrative act, in order to determine how the constitutional requirements have been met, but also on the substantive issues, that aim some of the legislative solutions which it enshrines. Among them, the article paid a special attention to the consecration, for the first time in the Romanian legislation, of the possibility that the holder of a scientific title can give up to it. In our opinion, the newly introduced rule has some weaknesses, both in terms of how it is written, but also on the legitimacy of the solution itself.
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Under Article 1541 (1) b) of the new Romanian Civil Code, among the conditions in which the court may reduce the quantum of the penalty is also the condition that the penalty should be clearly excessive in relation to the damage that could be provided by the parties upon the conclusion of the contract. This text of the new Romanian Civil Code, which entered into force on 1 October 2011, has generated a controversy, in the sense that, once the „clearly excessive” character of the penalty has been retained, the court shall be required to proceed to the reduction thereof or, on the contrary, it has only a faculty (possibility) to proceed as such. In the opinion of the author of the study, the second interpretation is the judicial one.
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In the Romanian doctrine, even if it is evoked the legal existence of the „right to a name”, most authors define it as if it were identical to the „name”. Likewise, some of its legal characters are just asserted, and others are logically and legally grounded in a questionable manner. In relation to this „situation”, this study is devoted to the argumentation and phrasing of a variant of „definition” for the „right to a name”, as well as to the „nuancing” of its legal characters.
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Din economia dispozițiilor art. 1349 din noul Cod civil reiese faptul că orice persoană are îndatorirea să respecte regulile de conduită pe care legea sau obiceiul locului le impune și să nu aducă atingere, prin acțiunile ori inacțiunile sale, drepturilor sau intereselor legitime ale altor persoane; cel care, având discernământ, încalcă această îndatorire răspunde de toate prejudiciile cauzate, fiind obligat să le repare integral. -
The current standards on the quality, the integrity and the non-disclosure of the professional secret in the interprofessional complementary activities of the Romanian judicial system represent, in the contemporary society, a concern to adjust to the permanently changing reality. The existence of some constants such as independence, competence, responsibility, but also honour, dignity and respect, in reality, receives new meanings, and their convergence is achieved only by way of a various communication. Creating some new modalities to ensure the common professional status is not an illusion, but a real need for the interprofessional dialogue to take place not only within a profession, but within more professions, for the purpose of ensuring the unity in the application of law.
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In the matter of conditions of application of the preventive arrest measure, as in the case of other institutions, the new Criminal Procedure Code contains new regulations and takes over, to a small extent, some provisions of the previous Criminal Procedure Code (of 1968). The new Criminal Procedure Code has regulated the preventive detention in a single modality: the detention of the defendant, namely of the person against whom the criminal action has been set in motion. In this study, the authors analyze the institution of preventive detention, with special reference to the conditions of application of this measure, by presenting some critical aspects and by proposing some improvements of the new regulation. Key
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At first sight, guilt appears as being one of the necessary conditions for engaging liability, which is quite easy to determine. In fact, in order to make such a statement it must be considered the structure of guilt, formed not only of the intellective and volitive factors that make up the complex psychological process which stands at the origin of the illicit activity, but also the imputation which can be brought to the agent for a conduct inconsistent with the rigours imposed by the legal order. By the analysis made, the author of this study has emphasized both the strengths, and the disadvantages of the criteria subjectively, objectively and even intermediately used for determining the civil guilt in concrete situations. Likewise, he has also dealt with the possibility of determining the criminal guilt in the light of the psychological and normative conceptions. At the same time, by expressing his options for some of these, the author has proposed some nuancings in order to obtain some results as precise as possible and, at the same time, fair for all parties involved.
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The problematical issues concerning the documents issued by the President of Romania in exercising his constitutional and legal powers and the settlement of disputes derived from these documents have been less discussed in the literature of speciality. Starting from this reality, this study intends to analyze these issues, by comparing the provisions of the Law on the administrative disputes No 554/2004 to the provisions of the revised Constitution and to other special normative acts in the matter. In this context, the study analyzes in detail the documents issued by the President of Romania in exercising his constitutional and legal powers, the documents issued by the President of Romania which may be subject to an action for administrative disputes, as well as the documents which are excepted from the control of the court of administrative disputes.
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Both at Community level and at national level, there is the concern to allow the employees the possibility of a conciliation of the professional life with the private life, one of the measures regulated in this respect being the leave for raising a child, provided by the Government Emergency Ordinance No 111/2010. The exercise of this right can not be a reason to treat the employee differently or to affect his professional evolution, as the law guarantees the stability of the labour relation for the duration of the leave and subsequently, as well as the right to be reinstated to the same position or to an equivalent one. However, the national legislation also contains provisions which are lacking clarity, does not fully transpose the Community law in the field, so that it is required an improvement of this legislation and a greater flexibility in regulating of the situation of the labour relation for the duration of the leave for raising a child.
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The current Civil Code advances a detailed regulation of the reparation of damage in case of tort liability, the most important matter of this institution. Being of deep impact in practice, the need for clarity of the new legal provisions is greater than in any other area of regulation. The study proposes their text analysis, emphasizing some shortcomings of the legal terminology used, of the systematization of the matter, but there are reported, in particular, some questionable solutions contrary to the European trends in matters of tort liability.
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The idea of this study has as starting point the „ambiguity” which, under the influence of the current Community and internal regulations, floats over the legal distinction between „designs” and „models”, as well as over their legal nature. Thus, the common definition reserved by the internal and Community regulations for the design and for the model, as well as their alternative or cumulative use in the legal texts convincingly support the existence of this „normative ambiguity”. This „legal reality” is accompanied by the non-existence of some doctrinal concerns for arguing the specificity of designs and of models, mostly by reference of one to the other, but also by reference of these to other kinds of intellectual creation. In fact, as this issue has been approached in the Romanian doctrine, the authors confine themselves, as a rule, only to take over some theses from the foreign legal literature, especially from French one, being less concerned with their logical and legal grounding.
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Promoting a public „good governance” involves the rationalisation of the manner of functioning of the state and of the instruments used, among which there are those of a normative nature. The proliferation of legal rules – at national level, at European Union level and at international level – is today a general phenomenon, generating costs – legal, administrative, economic and others – more burdensome for the individual and for the entire society. The remedy for this situation is simplification, under its various aspects – administrative simplification, simplification of the legal language or of the legislative techniques –, an old method frequently used, however a new concept trying to stand out in the field of legal theory. The simplification of law as legal-administrative action has undergone various national and EU experiences. These have accredited a series of principles of conduct, have set targets to be attained and have promoted specific methods and techniques for achieving them.
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The remand on custody and the preventive detention are placed among the most important institutions of criminal processual law. The adoption of the new criminal processual legislation regarding the remand on custody and the preventive detention raises the question of analysing the elements of novelty contained by the new legal provisions, as well as the question of their compliance with the case-law of the European Court of Human Rights.
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The right of the creditor to request the opening of the insolvency procedure is one of the modalities which the legislator has made available to the creditor in order to materialize his claim right held against his debtor. The opening of the insolvency procedure does not have the characteristic of a proper enforcement, whereas insolvency does not offer to the creditor the guarantee of actual satisfaction of the claim right held against the debtor. The creditor entitled to request the opening of the insolvency procedure must have held against its debtor a certain, liquid and exigible claim for more than 60 days, which shall have the minimum amount set by the law. This study intends to analyze the characters of the claim of a creditor entitled to request the opening of the insolvency procedure, respectively the certain, liquid and exigible character.
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In this study the author analyzes, on the one hand, the scope of application of the provisions of the Government Emergency Ordinance No 34/2014, and, on the other hand, the consumer rights in contracts concluded with professionals which fall within the scope of application of the mentioned Ordinance. We note that the Government Emergency Ordinance No 34/2014 on the consumer rights within contracts concluded with professionals transposes, into the Romanian legislation, the provisions of Directive 2011/83/EU of the European Parliament and of the Council, published in the Official Journal of the European Union, L 304 of 22 November 2011.
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The author makes a comprehensive and dense analysis of the exception of non-performance which, in his opinion, falls within the system of remedies for non-performance of contracts. At the beginning of his scientific speech, he has proceeded to a broad presentation of the notion, origin and foundations which justify the existence and the application of this important legal means, which is available to any party of a contractual relation, the content of which is formed of reciprocal and interdependent obligations. Likewise, he points out that, unlike the legislative state existing under the influence of the old Civil Code, currently, the exception of non-performance is expressly regulated, by general provisions, in Article 1556 of the new Civil Code, taken over in their essence from the German Civil Code, which entered into force on 1 January 1900. Having the provisions of the new Civil Code in this matter as legislative reference points, this study presents a vast debate on the scope of application, on the conditions of existence, on its own and specific mechanism of operation, as well as on the effects which this important remedy for non-performance of contracts produces between the contracting parties and to the third parties. The findings and the conclusions of the analysis have allowed the author to retain and to express the elements and the own features of the legal regime and of the functions specific to the exception of non-performance, based on which, ultimately, he proceeds to its delimitation from other related legal mechanisms, such as the legal compensation and the right of retention.
