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The study intends to make a comparative analysis of the legal provisions of the Romanian Civil Code from 1864, in relation to those of the current Civil Code, regarding the tort civil liability, highlighting similarities and differences between the two regulations, by presenting some novelty elements which the legislator brought to the current Civil Code. It was envisaged a historical presentation of the doctrinal conceptions regarding the civil liability, based initially on the subjective theory and the evolution towards the objective approach of liability, in the variants of profit risk, of the risk of authority and the risk of activity, by specifying the coexistence of the two foundations of liability, subjective and objective, and of the scope of each of them. Our attention is retained by the presentation of the foundation of civil liability in the system of national law, the elements of convergence and divergence between civil liability and contractual civil liability, the technical forms of tort liability, the liability for one’s own deed, the guilt and liability exonerating causes, the civil illicitness and the causes of removal of the illicit nature of the deed, the tort liability of the legal person, the novelties of the regulation of the liability for the deed of another (minors, persons under interdiction, the liability of the principals for the damage caused by minors) and the legal foundation of this liability, the liability for the damage caused by animals and the ruin of the edifice. It is also retained the new vision of the current Civil Code in the matter of liability for things, with special regard to the matter of collision of vehicles and the legal basis of this liability. -
The study addresses the issue of the role of the judicial power within the system of separation of powers in the state, as well as its interaction with the legislative power, respectively the executive power, mainly using the method of analysis and of the case study, respectively of the jurisprudential study. Starting from the necessity, justified in a democratic state, of the existence of a system of mutual control between the authorities called to exercise the power, the authors present the creative role of the judge, called upon to apply, by interpretation, his right and principles, to a situation of fact, pursuing the respect for citizens’ rights and freedoms. Certainly the necessity of limiting the abusive or arbitrary conduct in exercising the functions of any of the three powers of the state can only be achieved when mutual control is effective and guaranteed by the legal regulations, as well as by the institutional practice, based also on the principle of loyal collaboration between institutions and public authorities. The members of the judicial power must respect high standards of ethics and professionalism, and their independence and impartiality are guarantees of respecting their role in democratic regimes based on the principle of separation of powers. The paper presents aspects referring to the interaction of the judicial power with the legislative one and the executive one respectively, by analysing the relevant case law of the Constitutional Court, which has established the parameters of this relationship, so as to guarantee the respect for the functions assigned by the Fundamental Law to each power, respectively to respect the citizens’ freedoms and the prevention of arbitrariness in the exercise of power.
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Cybercrime has become a serious threat to the fundamental rights of individuals, to the rule of law in cyberspace and to the functioning of democratic societies. Cloud Computing provides several benefits such as increased flexibility, scalability and reduced cost. However, it also provides several challenges for digital forensics and criminal investigators. In an investigation involving Cloud Computing services, investigators may seek access to the data held on computer systems located in foreign jurisdictions, held by foreign service providers or where the physical location of the data is unknown. Despite a growing adoption of Cloud Computing, law enforcement agencies and the judicial system are unprepared to prosecute Cloud-based crimes. This article considers various forensic challenges for law enforcement in a Cloud Computing environment and discusses measures against cybercrime, involving electronic evidence given the transnational and volatile nature of electronic evidence. By focusing on problems and solutions we examine the whole extent of legal measures that need to be implemented.
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The Insolvency Code, in Article 65, provides as follows: „(1) The procedure shall be initiated on the basis of an application filed to the tribunal by the debtor, by one or more creditors, or by the persons or institutions expressly provided by the law. (2) The Financial Supervisory Authority files an application against the entities regulated and supervised by it, which, according to the data available to it, satisfy the criteria provided in the special legal provisions for opening the procedure provided by this Law.” As such, it can be said that the scope of the persons to whom it is recognized the right to refer the matter to the court is delimited by the legal provisions, excluding the ex officio referral to the tribunal, contained in the old regulation of the Commercial Code. The Framework-Law shows very clearly that the debtor in insolvency is obliged to submit an application to the tribunal in order to be subject to the provisions of this Law, within maximum 30 days of the occurrence of the state of insolvency, being able to come before the tribunal with such an application also the debtor for whom the occurrence of the state of insolvency is imminent (Article 66), any creditor entitled to request the opening of the procedure provided in this normative act against a debtor presumed to be in insolvency having the right to initiate, in its turn, an introductory application (Article 70). Given that the debtor himself is the most suitable person to know the state of insolvency or the imminent insolvency of his patrimony, it was normal for the legislator to admit that it had an important role in the initiation of the collective procedure. The creditors, not having the right to request the opening of the imminent insolvency procedure, but only for current (presumed) insolvency, could not act before a real and manifest imbalance was produced in the debtor’s patrimony, when the financial difficulties were already revealed by the inability to pay the due obligations.
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The present study analyzes how the trial procedure for the application for voluntary intervention was regulated by the Law No 134/2010 on the Civil Procedure Code and the arguments for which the author considers that it is not justified to change this procedure by the Law No 310/2018 for amending and supplementing the Law No 134/2010 on the Civil Procedure Code, as well as for amending and supplementing other normative acts. The result of the study is reflected in the opinion according to which the conclusion of rejection as inadmissible of the application for voluntary intervention had to be maintained in the form existing before the adoption of the Law No 310/2018, namely that it can be challenged separately. Thus, the conclusion of the admission in principle could only be challenged at the same time with the merits, whereas in the event that the application for intervention is rejected as inadmissible, the conclusion could be appealed within 5 days, which was running from ruling for the present part, respectively from the communication for the missing part. The legal remedy was only the appeal, if the conclusion was given at first instance, respectively only the review to the hierarchically superior court, if the conclusion was pronounced in appeal. The settlement of the legal remedy took place within a short time limit of no more than 10 days of registration, the file being submitted to the judicial control court in a certified copy for conformity with the original, within 24 hours of the expiration of the time limit. The legal remedy had suspensive effect, the examination of the main claim being suspended until the appeal is settled. By the Law No 310/2018 it was amended the court procedure, referring to the means of appeal that can be exercised against the conclusion through which the application for voluntary intervention was settled. In this regard, irrespective of the fact that the court admits or rejects the application, the conclusion can only be challenged at the same time with the merits. In this way, the potential intervener has to wait for the finalisation of the litigation to be settled before the first instance or before the court of appeal, in order to be able to benefit by his right. If the means of appeal exercised against the conclusion of rejection of the application for intervention as inadmissible, the judgment pronounced is cancelled by law, following that the case be re-judged by the court before which the application for intervention was formulated, which is usually the first instance, but, by exception, it may also be the instance of appeal. The resumption of the trial is made at the time when the admissibility in principle of the application for intervention is discussed. In the author’s opinion, by the re-examination at this point, the process is delayed, since all the procedural acts carried out must be resumed. Maintaining the possibility of separately challenging of the conclusion of rejection as inadmissible of the application for voluntary intervention, in the author’s opinion, was contributing to the unitary settlement of the litigation at the first instance, and by regulating some short time limits for the means of appeal, it was ensured the compliance with a reasonable time limit for the finalisation of the trial.
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The registers of the professionals are the main tool for knowledge, recording and control of their activity. Along with these functions, the registers of the professionals also have a probative function, the legislator including them in the category of documents under private signature, although they do not constitute a proper written evidence, but an improper one. The entries made in the registers are not made for the purpose of constituting an evidence, but of keeping the records, as established by law. But, through these entries, the professional practically recognizes the attested circumstances, the operations performed. The legal regime of registers of the professionals derogates from the principle of nemo sibi titulum constituere potest, a derogation which is explained by the nature and functions of the registers of the professionals, as well as by the conditions established by the law for keeping them. The Civil Procedure Code lays down the general rules referring to the probative force of the registers of the professionals (therefore, of the registers of all professionals, and not only of the traders’ registers), distinguishing, from a probative point of view, between the registers drawn up and kept in compliance with legal provisions and the registers kept in non-compliance with the legal provisions. The provisions of Article 280 of the Civil Procedure Code (called „Registers of the professionals”) are applicable only to registers, and not to other categories of documents, such as invoices, telegrams, faxes, receipts, etc., from professionals. The registers of the professionals can not bring evidence against the foreigners concerning the relationship among professionals, even if they are regularly kept. The delimitation of the legal relations between professionals from other civil legal relations is based on the concepts of professional and enterprise, concepts whose meanings are specified in Article 3 of the Civil Code, and Article 8 (1) of the Law No 71/2011 for the implementation of the Civil Code includes in the notion of „professional” the categories of „trader, entrepreneur, economic operator, as well as any other persons authorized to carry out economic or professional activities”. The records of the professionals kept in compliance with the legal provisions can give full evidence in court, both to the contrary and in favour of those who keep them, provided that the dispute is between professionals and concerns operations or legal acts which constitute facts and matters related to their professional activity. The registers of professionals, unlawfully kept, can not represent evidence in court in favour of those who have kept them. These registers provide evidence against the professional who kept them, but the part that prevails on them can not divide their content. The evidence resulted from the registers of the professionals is left by the legislator at the sovereign appreciation of the court, whether or not they are legally kept. The court can base its own solution even on other evidence. But, it must motivate the admission or removal of the registers as means of evidence. The registers of professionals may be presented in the trial by appearance or, as the case may be, by communication, or may be investigated by rogatory commission, provided that the documents or registers are in another court jurisdiction.
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Rome was an example of universal state becoming the strongest state of the European antiquity, remaining however in the collective memory as a mechanism that worked perfectly, determined by the Roman law system that distinguished itself by the high degree of abstraction, by the lapidary logical constructions, as well as by a perfect legislative technique. It is unanimously acknowledged that the Roman law has not remained a mere historical document, continuing to directly influence subsequent regulatory systems, proving both its viability and its living spirit. This has lead to the suggestive assertion in the specialized doctrine that „although the kingdom of the Roman people has perished, the kingdom of Roman law still lives”1, and at a brief analysis it can be established that the Roman juridical way of thinking is present in the system of the European modern legislative construction.
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În acest număr al revistei publicăm două interesante studii semnate de eruditul dascăl de drept civil Dimitrie Alexandresco în publicația „Curierul judiciar” din 28 mai 1900 și, respectiv, de profesorul Vintilă Dongoroz, în aceeași revistă, nr. 11/1942. În primul articol, profesorul Dimitrie Alexandresco abordează o temă de drept internațional privat, și anume efectele gestiunii de afaceri în situația în care aceasta este încheiată pentru a-și produce efectele într-o altă țară decât cea de care aparțin părțile. Profesorul Alexandresco răspunde la întrebarea: „Care este legea după care se vor aprecia condițiile intrinseci de validitate și efectele acestui cvasi-contract?”. În al doilea articol, profesorul Vintilă Dongoroz prezintă o problemă de drept procesual penal referitoare la cererea de strămutare pentru legitimă suspiciune a unei cauze penale aflate în faza de cercetare la judecătorul de instrucție. -
Among the measures initiated by the European bodies and subsequently taken over and adopted by the judicial authorities of the Member States to combat cross-border crime are those regarding the judicial cooperation in criminal matters referring to the tracing, identification, freezing and confiscation of proceeds, instruments and assets related to the offences committed by this kind of criminality. In this regard, the Report of the Commission to the European Parliament and to the Council on the progress made by Romania under the cooperation and verification mechanism, issued on 13 November 2018 in Strasbourg, through the Recommendation No 12, was sending to the Romanian authorities „the assurance that the National Agency for Management of Seized Assets is fully and effectively operational, so as to be able to publish the first annual report with reliable statistical information on the confiscation of assets coming from committing offences. The Agency should establish a system of regular reporting on the development of its administrative capacity, on the results obtained in the confiscation and management of proceeds resulted from committing offences”. The Romanian legislative authorities have indeed adopted the Law No 318/2015 for the establishment, organization and functioning of the National Agency for Management of Seized Assets and for the amendment and supplementation of some normative acts, law published in the Official Gazette of Romania, Part I, No 961 of 24 December 2015. This first legislative approach, however, had to be supported also by other administrative and executive formalities which involved the effective establishment, organization, functioning and operationalization of this Agency, a fact ongoing even at the date thereof. It is also noted, at the time of writing this study, that this Agency is not operational and that there are ongoing, although with big delay, some procedures for organising contests and for filling several offices therein in order to become functional. Starting from these coordinates, the article contains a brief analysis of the stage in which the Romanian authorities have complied with this recommendation, together with the relevant Romanian case law, with some of the Community norms and with the model of other European states in this matter, as well as its own conclusions necessary for an as good as possible implementation of this recommendation in the Romanian judiciary system.
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The authors appreciate that the Constitutional Court Decision No 874/2018 is welcomed in the Romanian legal landscape. To the same measure, the authors reiterate criticism to the decision of the High Court of Cassation and Justice No 52/2018 for a prior ruling on the interpretation and application Article 27 of the Civil Procedure Code, by reference to Article 147 (4) of the Constitution of Romania and Article 31 (1) and (3) of the Law No 47/1992 on the organization and functioning of the Constitutional Court, republished, texts which establish the effects of a decision of the Constitutional Court.
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The doctrine of the state of law springs from the German theory and case law, but at present it is also a requirement and a reality of the constitutional democracy in the contemporary society. At present, the state of law is no longer merely a doctrine, but a fundamental principle of democracy enshrined in the Constitution and in international political and legal documents. In essence, the concept of the state of law is based on the supremacy of law in general and of the Constitution in particular. Essential to the contemporary realities of the state of law are the following fundamental elements: the moderation of the exercise of state power in relation to the law, the consecration, guarantee and respect for the constitutional human rights especially by the state power, and last but not least, the independence and impartiality of justice. In this study we are analyzing the most important elements and features of the state of law with reference to the contemporary realities in Romania. An important aspect of the analysis relates to the separation, balance and collaboration of the state powers, in relation to constitutional provisions. The most significant aspects of the case law of the Constitutional Court regarding the state of law are analyzed.
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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.
