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The Law No 136/1995 on insurance and reinsurance in Romania did not expressly mention that the insurer acquires a right of regress against the person responsible for causing the prejudice, but only that the former is subrogated in all rights of the insured or of the beneficiary of the insurance. The wording has generated some different interpretations in practice as regards the action of the insurer to the reparation of the prejudice, this being classified either as special action, founded on the civil tort liability, or as action of common law, based on the civil contractual liability. These interpretations have led to the express regulation of the action for regress within Article 31 (6) of the Government Emergency Ordinance No 54/2016 concerning the compulsory motor vehicle insurance for civil liability for the prejudices caused to third parties by vehicle and tram accidents, which has repealed the Law No 136/1995, but which does not have a law for adoption yet. -
In this article, the author considers that the option of the legislator for the monistic system regulating the private law relations, adopted by the new Civil Code, following which the commercial relations have become civil legal relations, is an error. It is further submitted for analysis the proposal to repeal, within the normative acts implementing the Civil Code, the provisions by which the names specific to the commercial law have been replaced by names specific to the civil law. -
One of the forms of the forced joint ownership on shares is represented by family memories, the legal regulation consisting in Articles 1141–1142 of the Civil Code. Among the problems that rise on the legal status of these goods, a particular interest consists in the inclusion in this category of goods with a special economic value, and also the possibility to claim these memories from the one who unjustly holds them.
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Respecting equality of rights, as well as obligation of non-discrimination, assumes taking in consideration the treatment that the law provides to those to whom it applies during the period in which its regulations are in force, legal treatment that cannot be different. This paper presents a very serious problem to be debated, for the resolution of which the solution consists in the analysis of the constitutionality and/or deficiencies of the law in relation to Article 3 of Law No 76/2012 for the implementation of Law No 134/2010 on the Civil Procedure Code, in particular in the situation of the Court being subject to time limitation in a suit in respect to Article 46 (1) of Law No 10/2001 regarding the legal status of buildings abusively appropriated between 6 March 1945–22 December 1989 (by which the suspensions can last indefinitely without becoming outdated, in the regulation of the old Civil Procedure Code). Further to be verified if the principle of non-retroactivity of civil procedure law – referring to the civil action being subject to time limitation in a suit – is compatible with Article 6 of the ECHR Convention that guarantees the right to a fair trial, and if individuals who are judged under the old law are discriminated against in relation to those who are judged under the rule of the new law and to which the privilege special time limitation in a suit within 10 years applies.
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This study aims to both emphasize the specificity of employment law amidst other fields of law from Romania and also contribute to the promotion and support the thesis of its autonomy. The formula of conception and drafting of the paper privileged the development of a concrete and detailed analysis over the studies of several authors, regarding the question whether certain legal institutions, characterizing employment law, can be construed and applied in light of the contractualism principle, specific to civil law. Essentially, we argued that certain rights, belonging to workers, i.e. the rights regulated under the law and applicable collective labour agreements, are not negotiable in light of Article 38 of the Labour Code. In addition, we argued that the dismissal legal regime is imperative, thus forming part of „the public social order”, as French scholars define this concept. Consequently, this qualification impedes, from a legal standpoint, all waiver in relation to the employers’ obligations of invoking and proving the existence of a legal and valid dismissal ground.
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In this article the author intends to present from a constitutional perspective the legal nature of the institution of the Public Ministry, as it was configured in the texts of the Basic Law and analyzed in the specialized doctrine. There are analyzed, in detail, the place and the constitutional role of the Public Ministry as institutional structure of the judicial authority, as well as the role and attributions of the prosecutors’ offices in conducting the criminal investigation.
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The aim of the present paper is to cover the main aspects regarding the legal treatment of classified information in the Romanian criminal legislation by presenting, from a critical standpoint, the current regulation of the access to classified information in the course of the criminal proceedings, with a special focus on the lawyer’s access to such information, as well as by providing an overview of the substantial criminal provisions protecting classified information. With respect to the procedural standards, the underlying idea emerging from the detailed analysis of the legislation in force is that currently there is an unjustified difference in treatment within the criminal proceedings regarding lawyers, on the one hand, and magistrates, on the other hand, the former category being prevented from benefiting from an unhindered access to classified information, which directly affects the rights of the defence. As far as the criminal protection of classified information is concerned, the Romanian criminal code incriminates a variety of acts that imply the illicit disclosure of classified information, pertaining to either state or professional secrecy, and are prejudicial to the national security, the state defence as well as some public or private entities, as the case may be.
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Rațiunea vulgară ne spune că judecătorul espus electivităței timpurare nu poate avea principala sa însușire, aceea a independenției, garanția imparțialităției sale. Temerea și dorința, aceste două mobile cari au o înrâurire atât de mare asupra acțiunilor noastre, vor aduce o egală atingere libertăței morale a judecătorului, vor fi o piedică stăruitoare a îndeplinirii misiunei sale sociale.
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In this study we intend to make an analysis of the contestation to the insolvency condition, namely the processual means that may be used by the debtor against whom an application for opening the insolvency procedure has been filed. In the light of a rich judicial practice in this area, we consider it appropriate to compare the legal provisions found in Article 72 of the Law No 85/2014, as amended and supplemented, with the jurisprudential interpretations, in order to better understand this means of defence made available to the debtor by the legislator. Thus, we will observe the nature and the conditions in which the debtor’s right to contestation may be exercised, the reasons which can be invoked and the evidence that he can use to demonstrate the lawfulness of his contestation, as well as the legal effects and consequences determined by this procedure. -
The study presented by the author is a subject matter of acute timeliness, especially from the perspective of the fact that the immovable assets do not fall within the scope of some unique rules on their sale, since there are specific legal provisions in relation to different categories of immovable assets and the place where these are located. The paper analyzes the contract of sale of different categories of real estates, such as the lands, the buildings and related land, the lands located inside built-up area, the agricultural land located outside built-up area, as well as the forestry lands, emphasizing the particularities of each type of sale. A special place within the study is occupied by the examination of the legal rules applicable to the sale of the lands located outside built-up area, the conditions in which such real estates can be acquired through sale, the persons who may act as buyers, including the foreigners, the stateless persons and the legal persons of the nationality of other state than Romania. Likewise, there are emphasized the specific phases of exercising the pre-emption right of the co-owners, lessees, neighbouring owners and of the state in case of the sale of the types of real estates analyzed, as well as the sanctions applicable in case of the violation of the rules for the exercise of the pre-emption right in this matter. The study outlines the field of action of the future research, based on the legal doctrinal opinions expressed in the researched space and on the personal views of the author, wishing to form a bridgehead for further developments.
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This paper proposes an approach of the evolution in time of the Paulian action, from the origins to the current regulation. Underlining the historical reference points of this action contributes to a better understanding of the current form of legal regulation, which knows changes of substance as compared to the one we find in the Roman law.
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In this article the author intends to debate, from the perspective of the constitutional texts, developed in the Law No 303/2004, the complex problems of the status of prosecutors, especially since the legal nature of the Public Ministry is not definitively clarified, the legal texts, including the norms written down in the new Criminal Procedure Code, failing to configure the position of the prosecutor’s offices between the executive power and the judicial power. If, from the point of view of the constitutional role, the prosecutor is closer to the Executive (he permanently defends the general interests of society, the rule of law, as well as citizens’ rights and freedoms), from the point of view of the involvement of prosecutors in the activity of administration of justice of the courts of law, they share similarities with the judicial power, without being, however, part of it. From this perspective, the author analyzes, among others, the constitutional grounds of the status of prosecutors and their independence, shows why the prosecutors can not benefit from irremovability, presents the content and character of the authority of the minister of justice over the prosecutors, as well as the issue of incompatibility of the members of the Public Ministry.
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This study concerns the manner in which the abuse of office provided by Article 297 (1) of the Criminal Code is presented in the Draft law drawn up by the Ministry of Justice, appreciating that the offence is defined simplistically and formally, without clarity, precision and predictability. According to the Draft law, any act of breach of the law, of a Government Ordinance or of a Government Emergency Ordinance by a civil servant is considered to be offence of abuse of service, regardless of its severity and consequences, because the legal content thereof is not circumscribed. In order not to confuse the offence of abuse of service with the other forms of civil, disciplinary, administrative, fiscal, material or contraventional legal liability, we have introduced in its definition the condition that the act be committed for material interests, and that the damage cause particularly serious consequences. In this way, the abuses in the interpretation and application of Article 297 (1) of the Criminal Code will be completely removed.
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The authors present another opinion on the subject regulated by Article 132 of the Law No 78/2000, arguing that it constitutes a special legal aggravating circumstance for the offences of abuse of office and usurpation of the function provided by Article 297 and Article 300 of the Criminal Code. In the current regulation the abuse of office provided by Article 297 of the Criminal Code by reference to Article 132 of the Law No 78/2000 is not a criminal offence assimilated to corruption offences and, consequently, may not fall within the competence of the NAD unless the damage caused exceeds the ROL equivalent of one million euros. Drawing attention to the fact that the provisions of Article 132 of the Law No 78/2000 are not precise, predictable, they bring arguments in support of the thesis of the susceptibility of unconstitutionality thereof.
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The offence of international illicit trafficking in risk drugs is provided in Article 3 (1) of the Law No 143/2000 on preventing and combating illicit drug trafficking and consumption, and, following the amendment brought by the Law No 187/2012 for the implementation of the new Criminal Code, is currently punished by imprisonment from 3 to 10 years and the interdiction to exercise some rights. Prior to the amendment, the punishment was imprisonment from 10 to 20 years and the interdiction to exercise certain rights.
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The recent case law of the Romanian Constitutional Court gives shape to a new doctrine regarding the Court’s role in ensuring the national legislator’s compliance with the European Union’s competences. In order to identify the new doctrine’s background, the current article analyzes the evolution of the Romanian constitutional case law on the application of Union law. Subsequently, the current position of the Constitutional Court is extensively described, emphasizing both its immediate consequences and possible future developments. -
This study deals with the mediation in the criminal side of the trial. The legislator has limited the scope of application of the mediation in the criminal side of the trial to the offences in respect of which the criminal action is set in motion upon the prior complaint of the injured party and is extinguished by the withdrawal of the prior complaint, on the one hand, and to the offences in respect of which the criminal action, although set in motion ex officio, is extinguished by the reconciliation between the injured party and the perpetrator. The mediation procedure in the criminal side of the trial is marked by three stages: the pre-mediation stage, the stage of actual mediation and the stage of closing the mediation. The pre-mediation stage is marked by an initial moment, when the conflicting parties present themselves to the mediator, and by a final moment, when mediation is either accepted or refused. The stage of actual mediation takes place in the form of some mediation sessions and it concentrates the most important activity of the mediation procedure. After the mediation takes place, the procedure is closed by concluding an agreement between the parties as a result of the settlement of the conflict, by the mediator’s finding of the mediation failure or by the submission of the mediation contract by one of the parties. Within the mediation in the criminal side of the trial, three legal acts are drawn up: the mediation contract, the minutes of closing the mediation and the mediation agreement. The mediation contract ends at the final moment of the preliminary stage of the procedure, when the conflicting parties appear before the mediator. Upon closing the mediation procedure, the mediator draws up a minutes. It is mandatory to draw up the minutes, regardless of the modality by which the mediation procedure is closed. If the mediation is closed by settling the conflict between the parties, the minutes of closing the mediation procedure is doubled by a mediation agreement. In criminal matters, the mediation agreement in writing is mandatory.
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The study is grounded on the thesis according to which the contestation against execution aimed at reducing the punishment imposed on the convicted person under the special cause of reducing the punishment provided in Article 19 of the Law No 682/2002 on the protection of witnesses is inadmissible.
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The notion of „principle” has known three approaches throughout its history: ontological (philosophical), logical, and normative. Ontologically, it would mean the primary object of knowledge stemming from the intellectual act, by the procedure of induction, generalization (a form of reasoning), starting from the particular and ending with the general, from facts to concepts. In a logical sense, it is a general proposal induced from particular rules, being a source for deductive reasoning wherein the conclusion follows necessarily premises that are sources of orientation: ideas, facts, situations. Legal logic has a wide content, and it is considered that logical principles denote, on the one hand, a body of rules stemming from a methodic and reflected development, rules ordered systematically, and, on the other hand, the axioms that substantiate a rational structure. This is how principles are linked with the perpetual work of sensibly organizing the law (the activity of legislation). In a normative sense, the principle no longer describes the object or a form of logic, nor does it describe an axiom or a reason-based system of rules, but a legal norm/standard whereby an obligation is asserted, establishing a resource for the legal interpreter. Interpretative adages which relate, however, to formal rules of logical reasoning, may clash and lack any compelling force, being used by the judge in the development of his/her own policy. The role of the principles is to ensure the coherence and harmony of the legal system, since they are the expression of superior values embedded in the spirit of the law. Regarding the content and the extent of the principle of legal certainly, legal literature has identified three levels of approach: pre-judicial legal certainty; procedural legal certainty and post-judicial substantial legal certainty; all of them meet to ensure the „predictability of the law” so that the parties/the litigants have a feeling of certainty.
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Conform prevederilor art. 396 alin. (6) C.pr.pen., instanța pronunță încetarea procesului penal atunci când există vreunul dintre cazurile prevăzute la art. 16 alin. (1) lit. e)–j) C.pr.pen. Unul dintre aceste cazuri, prevăzut de art. 16 alin. (1) lit. g) teza ultimă C.pr.pen., se referă la situația în care „a fost încheiat un acord de mediere în condițiile legii”. (Curtea de Apel Galați, Decizia penală nr. 1278/A/8.12.2016 dată în Dosarul nr. 1324/233/2016, cu notă aprobativă)
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This article has as object of study the issue of the marriages of convenience concluded for the sole purpose of ensuring the right of entry and of stay of a foreign citizen on the territory of Romania. In elaborating the study plan we have considered: a first introductory part which presents the normative basis relative to the legal regime of the foreigners; a section devoted to some decisions of the Romanian Constitutional Court which has been entrusted over time with analysing the concordance of the provisions regarding the legal regime of foreigners with our Fundamental Law; a point devoted to the European legislation relevant for the issue under our examination and a practical part which reveals how Romanian courts have settled cases concerning the assessment of the marriages of convenience. -
The current Civil Procedure Code has brought some changes in respect of the evidence with the interrogatory, changes which are discussed in this study. Thus, for example, the court has the possibility to proceed to the confrontation of the parties and, in case of the interrogatory of the persons who are abroad, according to the new regulation, the condition of domicile situated abroad is no longer necessary, being sufficient for the party to be abroad for a longer period of time. I have discussed punctually the administration of the evidence with the interrogatory in the case of the natural person, in the case of the legal person, in the situation of the persons who are abroad, as well as the effects of the absence from the interrogatory or of the refusal to answer to it. Since the confession is currently regulated by the Civil Procedure Code, unlike the former regulation, when it could be found in the Civil Code of 1864, I have presented the most important aspects concerning the judicial confession.
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The legal epistemology justifies the interest of this study for the relations which are established between the notions of branch of law, of sub-branch of law, of legal institution, as well as their relations with the forms of legal liability which they regulate. In the problems of the dynamics of the relations between the branches of law and the forms of legal liability the rule is that every branch of the law knows or generates at least one form of legal liability. Starting with the theoretical challenge launched by Professor Antonie Iorgovan, regarding the elements that announce the appearance of a new form of legal liability within or outside a branch of law, the novelty proposed by this study consists in the approach of the inverse relation, precisely of the capacity of a new form of legal liability to generate a new branch of law, as well as its reception by a legal science of branch. The verification of the validity of the capacity of mutual cogeneration between the forms of legal liability and the branches of law will be achieved by means of the examples of the relations established between the ecological liability and the environmental law, the objective liability and the insurance law, the managerial liability and a possible managerial law on the ground of legal methodology.
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In the Draft law drawn up by the Ministry of Justice, the offence of abuse of office provided by Article 297 (1) of the Criminal Code is defined simplistically and formally, without clarity, precision and predictability. According to the Draft law, any act of breach of the law, of a Government Ordinance or of a Government Emergency Ordinance by a civil servant is considered to be an offence of abuse of office, regardless of its gravity and of its consequences, because its legal content is not circumscribed. In order for the offence of abuse of office not to be confused with the other forms of civil, disciplinary, administrative, fiscal, material or contraventional legal liability, we have introduced in its definition the condition that the deed must be committed for material interests, and the damage must cause particular serious consequences. In this way, the abuses in the interpretation and application of Article 297 (1) of the Criminal Code will be completely removed.
