-
The present study begins with the analysis of the texts of Article 630 of the Civil Code, where there can be found the legal relevant provisions, followed by some considerations regarding the origin of the civil liability for the abnormal neighbourhood inconveniences under the influence of the old Civil Code. Furthermore, the author appreciates that, at present, from the economy of the texts of Article 630 of the Civil Code, it results that the civil liability in question is of two types: reparative and preventive. Further on the scope of this liability is circumscribed. For this purpose, on the one hand, it is established the sphere of the persons between whom it can be engaged, and, on the other hand, there are determined and qualified the neighbourhood inconveniences that can generate it. An important and ample space is conferred to the analysis of the conditions that must be met for the existence of this liability, as well as to the detection of its theoretical foundation. Thus, in the reparative variant, the existence and the engagement of civil liability requires to cumulatively meet three conditions; two of them are the general conditions of any reparative civil liability – damage and relation of causality – and a special or particular one, which is the abnormal neighbourhood inconvenience caused to the victim, directly or indirectly, personally or by another, by the owner or owners of one of the neighbouring buildings. Therefore, it can be easily established that the fault or guilt, proven or presumed, of the neighbouring owner or of other persons, who exercise the attributes of the property right, over or beyond its normal limits, is not a necessary condition of engaging this reparative civil liability. Consequently, the problem of the theoretical foundation of liability is also solved legislatively, in the sense that we are in the presence of an objective civil liability, without the guilt of the liable person or of other persons, according to Article 630 (1) of the Civil Code. -
In any democratic state the activity carried out by the body of magistrates must be limited exclusively to the law and in compliance with the Constitution, because, otherwise, those judgments pronounced by ignoring these requirements, the fundamental rights and freedoms of the citizens, may lead to the commission of some judicial errors, through which the litigants suffer both from damage of material, but especially moral nature. -
The disciplinary misconduct related to the „non-compliance with the duty to abstain when the judge or the public prosecutor knows of the existence of one of the causes provided by law for his abstention, as well as the filing of repeated and unjustified applications of abstention in the same case, which has the effect of delaying the judgment”, regulated by Article 99 i) of the Law No 303/2004 on the by-law of judges and public prosecutors, was introduced by the Law No 24/2012 amending and supplementing the Law No 303/2004 on the by-law of judges and public prosecutors and the Law No 317/2004 on the Superior Council of Magistrature; it could not be found in the original version of the Law No 303/2004, nor in the Law No 92/1992 on judicial organization. The material element of the objective side of the disciplinary misconduct regulated by Article 99 i) of the Law No 303/2004 includes two distinct hypotheses: the first hypothesis has as object the non-compliance with the duty to abstain when the judge or the public prosecutor knows of the existence of one of the causes provided by law for his abstention, and the second relates to the filing of repeated and unjustified applications of abstention in the same case, which has the effect of delaying the judgment. -
The doctoral studies consist of two components developed under the guidance of a doctoral coordinator, namely a training programme based on advanced university studies, as well as an individual scientific research programme. The doctorate is finalised with the public presentation of a paper elaborated by the doctoral student. The doctoral thesis must demonstrate to have the advanced scientific knowledge of the topic addressed, must contain elements of originality in the development or solving of the topic, as well as modalities of scientific validation thereof. In order to fulfil the condition of public presentation of the doctoral thesis it is required an evaluation both from the guidance commission within the doctoral school and from the commission of public presentation of the doctoral thesis within the doctoral school. Evaluation is a complex process, which has as finality to form the belief that the doctoral studies have achieved their purpose by certifying the merit, value, meaning of the respective paper. The failure to comply with good conduct in research, including the plagiarizing of the results or publications of other authors, producing results or replacing the results with fictitious data, brings about the failure to obtain the agreement of public presentation of the paper. The legal nature of liability for violating the rules of deontology in the preparation of doctoral thesis is diverse, from the disciplinary liability to the criminal liability.
-
The relation between the civil servant and the public authority or institution in which he occupies the public office arises and is exercised on the basis of the unilateral administrative act of appointment, issued according to the legal provisions, and not by a contractual act. That is why the public function and the status of the civil servant have been regulated in the public law, separately from the labour relations specific to the private law, at the same time also determining the establishment of a specific sanctioning system, which takes into account the distinctive features of the way in which the public office is exercised. In this study there are analysed, from a dual perspective, theoretical and practical, the conditions of each form of the legal liability governed by the administrative law. At the same time, we also consider the cumulation of the disciplinary liability with other forms of legal liability of the civil servant for the damaging consequences of his deeds. A few aspects of novelty brought by the codification of the legislation on the liability of the civil servants in the Draft Administrative Code complete our research.
-
-
The public order provisions supplement the law of parties. Their relevance is optional and subject to the compliance of the behaviour of the party at fault. In case of non-compliance, specific responsibility for European funds for the public procurement contracts financed from these funds is the legal means that will restore the contractual order. This specific responsibility represents a legal “lever” which allows to the state bodies to intervene in any situation and whenever it finds irregularities in the management of the European funds. The way of creating the legal liability relationship raised more controversy, whose substance will be displayed below. -
-
Throughout more than 150 years of constitutional history in Romania, the Romanian constitutions have provided the modality of engaging the liability of the ministers for their activity. This article aims to make a brief analysis of how it was regulated the liability of ministers in the various constitutions which Romania has adopted over time and of the relation between the political and legal liability of ministers in the Romanian law, starting from the practical realities of recent years. Although, traditionally, in the constitutional law it is made a clear distinction between the political and legal liability, in practice, the boundary between the two types of liability is questionable, especially from the perspective of the legal classification of these types of liability. If the political liability is considered to be that liability of ministers before the Parliament for their political activity which may result in the loss of confidence and the removal from the office of minister, the legal liability has in view how a minister should bear the consequences of the law, by his prosecution and indictment.
-
Based on Art. 1361 of Law no. 31/1990 with respect to trade companies (republished), „the shareholders must exercise their rights in good faith, while observing the legitimate rights and interests of the company and of the other shareholders”. While considering this main norm, and by also taking into account the jurisprudence, as well as the doctrine from France and the United States of America, the author reaches the conclusion that, despite the incomplete nature of the law reproduced above, the Romanian law also legally allows, at the moment, the initiation of a (patrimony) liability, either by the legal representatives of the trade company, or by the minority shareholders (associates), or by the legal representatives of the trade company, or even by the minority shareholders (associates) (but in the benefit of the trade company),against the shareholders (associates) who, through their votes (in the general assembly of the shareholders/ associates), have affected the trade company, by not observing Art. 1361 of Law no. 31/1990. -
In this article the author, starting from a case settled by the courts, refers to the patrimonial liability of the legal advisers. In essence, he points out that in the exercise of their profession, they undertake the obligation of means (of diligence), in the sense that they have the duty to make all the necessary diligence, all their (professional) knowledge and efforts so that the expected outcome be achieved. In the contrary hypothesis however, when acting negligently, unprofessionally, etc. and cause damages, the legal advisers will be liable in terms of patrimony (on civil-contractual terms) to their employers.
-
The continuous evolution of the social-economic life and the diversification of the forms of action of criminal groups have required, both as regards criminal offences and domestically, the regulation of the criminal liability of the legal entity. Since crime, in general and economic-financial crime, in particular, is continuously growing, the indictment of the legal entity as active subject of the criminal offence was considered useful. The Romanian lawmaker also did this, first, by amending the Criminal Code in operation by means of Law no. 278/ 2006 and then by drafting a new Criminal Code, according to the European democratic legislation. Given the importance of this institution for the Romanian criminal legislation, we considered useful to make a demanding radiography of this issue. -
-
The author considers, in this study, that, in case of medical malpraxis in the public health system, it is the Romanian state which has patrimonial liability to the victim patient (through the medical service provider – public institution), according to the Administrative Dispute Law no. 554/2004, and the doctor in default (employee of the medical service provider) shall have a patrimonial liability to such provider (his/her employee), as set forth by article 270 et seq. of the Labor Code. -
Ending a controversy that lasted for two decades (1991-2011), Law no. 62/ 2011 on social dialogue settled, unequivocally, that in case of triggered and / or continued illegal strikes, the parties responsible are the organizers of the strike and all employees participating in such strikes, be they employees or civil servants. Further, the study proceeds to a thorough analysis regarding the legal nature of restoring liability (civil-tort or civil-contractual) of the organizers of such strikes, as well as of the „employees” (employees or civil servants) participating in such strikes, concluding that the first bear civil-tort liability, and the participating employees bear civil-contractual liability. -
In this study the author points out that, although in Romania we can not talk about a real regime of liability for the inconveniences of neighbourhood, but rather about an identity between this form of liability and the one for the abuse of law, however the social, economic, cultural realities, etc. impose such regulation. From a legal point of view, there is no exact definition of this notion, reference being often made in the legal doctrine to the sociological studies that have examined neighbourhood relations or to geographic studies, in which it is contained the essence of this notion from a spatial point of view. The author points out that neighbourhood can be defined as a state of facts that captures the co-existence of some persons, of some assets, whether movable or immovable, configuring those spaces of conflict and discussing proximities and distances. The Civil Code establishes precise rules on environmental protection and good neighbourliness, considered to be legal limits to private property right, thus, according to the provisions of Article 603 of the Civil Code: „The property right imposes the compliance with the duties concerning the environmental protection and the ensuring of good neighbourliness, as well as the compliance with the other duties which, according to law or custom, belong to the owner.” The new regulation nuances certain aspects which, in practice, raise many problems; the following are examples: the use of waters, the roof droplet, the distance and the intermediate works for certain constructions, works and plantations, the view of the neighbour’s property, the right of passage, and finally the judicial limits are regulated. These judicial limits determine expressis verbis the consequences of exceeding the normal boundaries of the neighbourhood, more precisely, if the owner causes, by exercising his right, greater inconveniences than the normal one in the neighbourhood relations, the court may, on grounds of equity, compel him to pay compensation for the benefit of the injured person, and to restore the previous situation whenever possible.
-
After the entry into force of the new Civil Procedure Code and of the new Criminal Procedure Code, the problem of the judicial institution of the liability of the State and of the magistrates for the prejudices caused by judicial errors still remains controversial and unclarified, further generating doctrinaire and jurisprudential controversies. In this context, this study intends, in relation to the current legal context, to make an analysis of a few controversial problems regarding the liability of the State and of the magistrates for the prejudices caused by judicial errors, aiming, in particular, at the forms of liability of the magistrates, the legal nature of the labour relation of the magistrates, the legal nature of the liability of the State for the prejudices caused by judicial errors, the procedure of engaging the liability of the State and the action for regress brought by the state against magistrates. -
In this study, the author analyzes the change occurred with regard to the response to the statement of defence, by point 27 of the Law No 310/2018 amending and supplementing the Law No 134/2010 on the Civil Procedure Code, as well as for amending and supplementing other normative acts. In the old Civil Procedure Code this act of procedure was not regulated, but it was customary to submit a response to the statement of defence. The author presents how the act of procedure called the „response to the statement of defence” has been regulated, being introduced by the Law No 134/2010 on the Civil Procedure Code. Initially, in Article 201 (2) of the Civil Procedure Code, it was provided the obligativity of the applicant to submit the response to the statement of defence, after having communicated it. This obligation postponed the setting of the first trial term. The obligation to formulate a response to the statement of defence was also provided in Article 471 (6) of the Civil Procedure Code, for the settlement of the means of appeal, as well as in Article 490 (2) of the Civil Procedure Code, for the settlement of the extraordinary remedy of the review. As regards the appeal and the review, the provisions of the Civil Procedure Code have not entered into force, but it has been applied the intermediary regime regulated by Article XV (4), for the appeal, and Article XVII (3), for the review, of the Law No 2/2013 on some measures to relieve the courts, as well as to prepare for the implementation of the Law No 134/2010. By point 27 of the Law No 310/2018 the facultative character of the response to the statement of defence was enshrined. This amendment has also been extended to the case of settlement of the appeal and of the review. The author presents the arguments for which she considers that the legislator should have abandoned this procedural act, being sufficient to express the position of the applicant by way of the request for summons and of the defendant by way of statement of defence. The conclusions of the study are reflected in the opinion that the response to the statement of defence is not justified in the civil trial, creating an imbalance between the parties, the applicant being able to justify his claims both by the request for summons and by the response to the statement of defence, while the defendant has available only the statement of defence. Even if by abandoning the binding character of the response to the statement of defence, the fixing of the first term, respectively that for appeal and for review, takes place more quickly, the author proposes to fully abandon this act of procedure and considers that the legislator should have repealed the response to the statement of defence. -
Our paper suggests exploitation of interrogations such as rationality is a concept: primitive, as is customary? tautological, „is what we all know it”? monolithic, homogeneous substance? immutable, not counting history, man, practice and does not support self-critical approach? operational tool to be opposed to uncertainty assessment values? mystifying, justifying postfactum a social action animated by various motives? illusory, utopian even, because every time intelligibility is surpassed by reality? The conclusions of our research reveals that juridical rationality should not ignore the experience of rationality but no specific legal phenomenon. It is multidimensional and confirms its status only if it is based on logic and the history and practice of integrated social experience, procurement of modern science, gives satisfaction to the human condition this historic time, does not ignore the contradictions within juridical life, aspiration for interrogation, foresight and creativity. -
The error of random distribution of a civil case refers, in the matter of means of appeal, unlike the scenarios in which it is necessary to qualify or requalify a means of appeal, only the situation where the will of the party exercising the means of appeal is disregarded, respectively it is not registered on the role of the court of judicial control and, subsequently, randomly distributed the means of appeal exercised by the party, but another means of appeal, due to a genuine error occurred at the time of the registration of the means of appeal or, as sometimes happens in the judicial practice, because at the time of the registration of the means of appeal it is assessed that the party did not exercise the means of appeal provided by law, thus proceeding to the registration of the means of appeal provided by law, which should have been exercised by the party, and not of the means of appeal that was actually exercised. -
An employment contract is decisively characterized by the relationship of subordination between the parties, which distinguishes it from a civil contract. The reclassification of a civil contract as having the legal nature of an employment contract can be done by the labour law court, by the fiscal control body and, more recently, even by the labour inspector. The paper analyzes the criteria under which such reclassification can intervene, what are its traps and its effects. It is finalized with a series of proposals aimed at simplifying the reclassification operation, as well as providing legal certainty.
-
-
The supremacy of the Constitution has as main consequence the compliance of the entire law with the constitutional rules. Guaranteeing the respect for this principle, being essential for the state of law, is primarily an attribute of the Constitutional Court, but also an obligation of the legislature to receive through the normative acts adopted, in content and form, the constitutional rules. The entry into force of the new criminal codes has generated a significant case law of the Constitutional Court concerning the verification of constitutionality of some regulations of the Criminal Code and of the Criminal Procedure Code. Through this study we intend to analyze the following more important aspects: a) how the constitutional principles and values have been materialized in some criminal rules and criminal processual rules of the new codes; b) the effects of the decisions of the Constitutional Court in the process of constitutionalisation of the criminal law; c) applying the decisions of the Constitutional Court in the judicial activity, especially those which have established the unconstitutionality of some regulations in the new criminal codes.
-
Under the study hereby, the author sets under review the institution of “recidivism” in the light of the new Criminal Code. Essentially, highlighting new issues both in relation to the definition and the terms of recidivism, and as regards punishment. Therefore, the terms of recidivism have been amended (limits thereof have been extended), and the sanctioning treatment was simplified. Also, the author notes the fact that the legislature does not make a distinction, in terms of conditions, between post-release recidivism and the post-sentencing recidivism, nor between low recidivism and high recidivism, the old rules being grouped in a single way. -
This study examined in a comparative manner the provisions of the Council Framework Decision 2008/675/JHA of 24 July 2008 compared to the Romanian internal provisions related to taking into consideration the criminal convictions decided in another European Union Member State, in the circumstances in which in another Member State a new criminal lawsuit is being initiated against the same individual, but for different facts. The investigation is important since the above mentioned European normative act is classified in the broad range of measures taken for the purpose of the harmonization of laws in the field of judicial cooperation in the criminal matter within the Member States, and the Romanian laws have not been adjusted yet to the European legislative system. Based upon the investigation carried out by the authoress, it results that both the examined European normative act and the internal laws in the matter have certain lacks and for this reason their amendment and supplement is required. The essential contribution of the study shall consist in the examination of certain judicial rules and the identification of certain situations which have to be regulated either by supplementing the European normative act, or by the adoption of another instrument, the same situation being valid as regards the Romanian laws, as well. -
Puțini sunt termenii din vocabularul științelor politice care să fi primit atât de multe definiții și caracterizări, de-a lungul timpului, cum este democrația. Fragmentul din Declarația Universală a Democrației pe care vi-l propun reflecției surprinde două aspecte ale termenului de democrație: unul instituțional, raportat la constituirea prin proceduri electorale democratice a instituțiilor reprezentative ale unui stat, la nivel național și local, și altul funcțional, raportat la puterea reală a poporului și mijloacele eficiente de care acesta poate dispune pentru a contribui, desigur, prin reprezentare, la activitatea legislativă și de control asupra acțiunilor Guvernului. Dacă primul aspect este relativ ușor de realizat, deși cunoașteți dovedite fraude electorale la nivel central și local, cel de-al doilea merită o atenție mai specială, întrucât nu cred că există un cetățean-alegător, grupuri de cetățeni-alegători, care să fie pe deplin convinși că sunt reprezentați, în mod real, în activitatea legislativă și, mai ales, în exercitarea funcției Parlamentului de control parlamentar.
-
In this study the authors examine the issue regarding the ways to determine lineage and the recognition of the child (art. 408 and art. 415 and the following of the new Romanian Civil Code - Law No. 287/2009, republished on July 15, 2011 and entered into force on October 1st, 2011) noting the differences in relation to the previous regulation (the Family Code in force from February 1st, 1954 until September 30, 2011); in this context, on the one hand, the positive aspect of the new regulations is highlighted, and on the other hand, a series of lex ferenda proposals are also being carried out. -
-
In order to achieve the objective of free circulation of civil and commercial judgments, as part of the process of judicial cooperation in civil matters, it was adopted the Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters which shall apply only to actions brought, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015. In spite of the fact that the Council Regulation (EC) No 44/2001 of 22 December 2000 which regulated the same matters, has significantly contributed to the development of an area of the free circulation of judgments, certain differences between national rules governing jurisdiction and recognition of judgments have been constantly hindering the effectiveness of the access to justice of the Union’s members. In regard to such difficulties, the Regulation (EC) No 44/2001 shall be superseded by Regulation (EU) No 1215/2012 whose provisions are aimed at unifying the rules of conflicts of jurisdiction in civil and commercial matters and at ensuring rapid and simple recognition and enforcement of judgments given in a Member State. For that purpose, the new Regulation (EU) No 1215/2012 has brought, in the matters of recognition and enforcement, not only necessary clarifications but also substantial changes, such as the exclusion of the requirement of a declaration of enforceability. Moreover, a short analysis of its provisions is required regarding several aspects, such as the refusal of recognition and enforcement, the applicable procedure, the transitional provisions and the circumstances in which Regulation (EC) No 44/2001 shall continue to apply even after 10 January 2015. -
The procedure of payment order has been regulated as a synthesis, but also as a reformation of the two previous procedures materialized in the Government Ordinance No 5/2001 on the procedure of the payment summons and the Government Emergency Ordinance No 119/2007 on the measures for combating the delay of the performance of the payment obligations resulting from the contracts between professionals. In its legislative work, by the new Civil Procedure Code, the legislator has not only achieved a fusion between the two normative acts, but it has also inserted novelty legislative solutions, bringing numerous amendments to the procedure and following its adjustment to the current legal, social and economic realities, in the attempt to harmonize the Romanian legislation with the European one. This study makes a detailed analysis of the nature of the procedure of payment order, of the characters and of the way it was conducted within the current normative framework, as well as of the vast judicial practice, by identifying the novelty elements of the procedure regulated by the new Civil Procedure Code, which – beyond the guaranteed additional accessibility and efficiency – require clarifications and specifications. -
Cititorii Dreptului au luat cunoștință de proiectul de lege relativ la noua modificare a legii Curții de Casație, în scopul reînființării recursului direct în materie de contencios administrativ, în expunerea de motive a d-lui M. Cantacuzino, ministrul justiției, ce am distribuit în supliment. Publicăm aici și raportul d-lui Petre Missir, care este un document luminos asupra legii propuse, aflată în discuția Senatului.
-
The article analyzes the cassation recourse, which is an extraordinary judicial remedy in the criminal trial, a reformative and devolutive judicial remedy, in principle a non-suspensive of enforcement and extensive judicial remedy. The purpose of the cassation recourse is to ensure a uniform practice at the level of the entire country. In order to achieve this purpose, the legislator has expressly provided the reasons for which a cassation recourse may be promoted, the jurisdiction for settlement, the subjects for which the possibility to exercise the judicial remedy is recognized and the solutions which the court can pronounce. The usefulness of the cassation recourse is fully emphasized, given the fact that the recourse would no longer exist within the Romanian criminal procedure system subsequently to the entry into force of the new Criminal Procedure Code. -
This study deals with aspects related to the procedure of recourse in cassation, which involves two stages: the admissibility in principle, which plays the role of a filter of recourses in cassation, and the examination of the recourse in cassation after the admission in principle. There are presented the effects of the recourse and the solutions that can be given for its settlement, underlining their lack of correlation with the cases of recourse in cassation, where appropriate, in the light of the decisions of the High Court of Cassation and Justice. Likewise, the decisions of the Constitutional Court and the legislative amendments operated so far concerning the trial procedure of the recourse in cassation will be considered. -
The new legislative context was a strong argument, mainly, for reconfiguring the recourse, which is not a new legal remedy for our system of law, the cassation recourse being actually built on the structure of the recourse of the previous Criminal Procedure Code, with no fundamental differences in this regard. Article 433 of the Criminal Procedure Code expressly provides the purpose of the cassation recourse, which seeks to subject to the High Court of Cassation and Justice the examination, under the terms of the law, of the conformity of the challenged judgment with the applicable rules of law. However, the cassation recourse aims at ensuring a uniform practice at the level of the entire country. There are expressly provided the judgments which can be challenged by means of the cassation recourse, as well as those that are not subject to this extraordinary legal remedy. In relation to the specificity of this extraordinary legal remedy, the code imposes strict conditions on the contents of the application for cassation recourse, the holders and the time limit for bringing this action, aspects presented within the paper, being followed up all the legislative amendments that have occurred so far. -
This paper provides a legal analysis of rules in the new (Romanian) Civil Procedure Code on ensuring a unitary judicial practice, i.e. the appeal in the interest of law and, respectively, the referral to the High Court of Cassation and Justice for a preliminary ruling on the settlement of matters of law. While the appeal in the interest of law existed also in the previous Civil Procedure Code, the referral to the High Court of Cassation and Justice is a new procedure, not regulated by the previous Civil Procedure Code. -
The Romanian Civil Procedure Code currently in force regulates, among others, the cross-appeal and the caused appeal, but these remedies are not regulated in the hypothesis of the (extraordinary) second appeal. The new Romanian Civil Procedure Code (published on 15 June 2010, but not yet in force) enacts both the caused cross-appeal and the caused cross-second appeal. After presenting the new regulation, the authors consider that, while the cross-/caused appeal is justified (since the appeal is a devolutionary remedy), the cross-/caused second appeal is not justified, since it is not compatible with the specific nature of the extraordinary second appeal.
