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The author summarizes the contractual solidarity principle and its overall consequences. At the core of contractual solidarity lies the requirement of reconciling the contractual interests of the parties. Compliance with this requirement stems from the relationship of solidarity between the parties in the context of contract performance and is intended to govern the being and its execution, including the consequences of breaching this tie, should either party be in default. Contract performance supposes the existence and action of solidarity relationship between the Contracting Parties, each laying under the obligation to accomplish the contractual interests of the other Party. Effective and beneficial accomplishment of said objective is ensured by complying the cooperation and coherence duties, which originate and argument their existence in strict relationship of contractual solidarity. The requirement to reconcile the interests of the parties is valid also if difficulties arise for either party during the contract performance. To overcome these difficulties, the parties are required to comply with two duties: the duty of tolerance and the duty of contract adjustment. Finally, the author reveals that the requirement above is meant to govern also consequences arisen from the breach of solidarity ties, in terms of contract unlawful non-performance. Thus, in selecting and implementing remedies and powers it may appeal to, the creditor is bound to comply with the internal consistency of the contract and the duty of fair proportionality or measures; the aim of these duties is the taking-up by the creditor of behaviors consistent with the purpose of the privilege chosen, without contradictions and disproportions in terms of the seriousness of unlawful contract nonperformance by the debtor.The author concludes that the constituent elements of contractual solidarity, on account of their action and effects, are likely to ensure proper performance of duties, to save contracts existence and, ultimately, to accomplish the interests of contracting parties, the purpose of any contractual tie. -
The author provides detailed analysis of the legal content of the offense of abuse of office as stipulated for in Art. 297 of the new Criminal Code. He examines the object of criminal protection, the subjects of offense, the objective and subjective sides, the forms, methods, sanctions and certain procedural aspects relating to the offense provided for in Art. 297 of the new Criminal Code. Also, the author does not hesitate to express his views regarding the constituent content of this criminal offense, its systematization, and its nature and to advance certain solutions and ideas of his own in this regard. Last but not least, certain personal views about the concept of subsidiarity, and the law applicable in the event of transitional situations are also promoted. -
This study begins with on overview of the regulations covering unjust enrichment in French law and the Romanian civil law under the former Civil Code, retaining the fact that its existence as an autonomous source of obligations was, however, recognized and established the Praetorian way. The central part of the study deals with the analysis of the legal regime of unjust enrichment, arising from the express provisions and general rules accounting for relevant general rules under the new Civil Code (Articles 1345-1348); thus, there are set out and debated the conditions of existence of this source of obligations and the admissibility of the action de in rem verso. The author’s approach continues with addressing the unjust enrichment effects and the specific rules applicable to restitutions on this basis. Eventually, it is argued that this autonomous source of obligations is theoretically and philosophically based upon the idea or the principle of fairness. -
In this study there are analyzed the issues raised by the conclusion and performance of the electronic contracts, also having in view that the cyberspace where they are located has no borders. There are examined, by turns, the regulation of the electronic contract (1); the notion of electronic contract, the notion of electronic means, the classification of electronic contracts (2); the formation of the electronic contract (3); the proof of electronic contract (4); the delocalisation of the electronic contract and its significance for the international trade law (5). -
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. -
In this article the author raises for discussion some theoretical and practical issues referring to the judicial control and to the judicial control on bail, preventive measures which have been regulated in this form in the new Criminal Procedure Code, focusing on how they are implemented, in order to avoid some errors or confusions related to their interpretation and application. -
In this study, the author explains the concepts of: structure of the registered capital; general pledge of the creditors; registered capital; difference between the registered capital and the patrimony of the company; difference between the registered capital and the equity capital (net assets); difference between the registered capital and the value of the company, as well as the problems of the legal regime of social contributions after payments, as all of the above follow from the Law No 31/1990 (republished) on companies.
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Contractul de asistență juridică învestit cu formulă executorie, în condițiile legii, constituie titlu executoriu cu privire la restanțele din onorariu și alte cheltuieli efectuate de avocat în interesul clientului. Este nelegală executarea silită pornită pentru o sumă pe care creditoarea o apreciază ca fiind datorată cu titlu de prejudiciu pentru încălcarea obligațiilor contractuale. Creanța nu reprezintă o plată pentru o activitate profesională desfășurată de societatea de avocatură, ci o despăgubire pentru încălcarea clauzelor contractuale de către contestator, având astfel caracterul unei clauze penale. Din această perspectivă nu prezintă relevanță în ce măsură creditoarea putea desfășura activități de intermediere sportivă ori dacă putea pretinde debitorului executarea obligației garantate potrivit contractului de ipotecă mobiliară pentru o nerespectare a obligațiilor asumate în cazul unui transfer. Nu este permis ca prin convenția lor părțile să poată ca, sub denumirea de „onorariu”, să-și creeze un titlu executoriu pentru o creanță care în realitate este o despăgubire. -
The article presents the results of a research conducted in six European countries mainly on the analysis of the exceptional nature of preventive arrest within these jurisdictions. In this article there are presented the main results of the research conducted in Romania, research that was based on a series of interviews with judges, prosecutors and lawyers. The main areas investigated have concerned aspects such as the analysis of the decision-making process, the situation of the foreign citizens subject to preventive measures, the manner of application of alternative measures to preventive arrest, the analysis of the current criminal processual normative framework, as well as of the impact in the current practice of the European regulations, etc. The conclusions of the study are in the sense that in Romania there have been registered also some aspects representing progress in the sense of protection of the fundamental human rights in the cases where it is raised the question of taking some preventive measures in the criminal cases – such as the fact that the tendency, at least in terms of using the preventive arrest, is a decreasing one. However, major deficiencies have also been found, related to the organization of the initial and continuing training for magistrates, in the sense that they have been found to be unaware of judicial instruments important for their activity. It is precisely about instruments that are capable of improving the situation of foreign persons in relation to the state where it is raised the judicial matter – respectively the European Surveillance Order.
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In this study, by analyzing the legal issues of the respect due to persons also after their death, the author, after proceeding to a comparative law examination in the matter, further makes a study of the Romanian legislation in the field under debate (mainly, Articles 78–81 of the new Romanian Civil Code, as well as other legal provisions written down in special laws, such as: the Law No 95/2006 on the reform in the field of healthcare, the Law No 104/2003 on handling of human dead bodies and removal of organs and tissues from the dead bodies in view of transplant and others). -
Engaging the civil tort liability has as finality the full reparation of the damage. Reparation is a legal means by which the victim may claim to be reinstated in the situation prior to the commission of the illegal act. The right to reparation depends on an objective fact, that of causing the damage. The condition of the certainty of the damage is its most important character. If the damage is not certain, it can not be ascertained whether the right to reparation arose, and if the uncertainty concerns the extent thereof, the object of the claim for damages can not be established. Sometimes, in practice, it is difficult to determine whether the damage invoked is certain or possible. In relation to this condition of certainty of the damage, the damage by loss of the opportunity to gain an advantage is one of the innovative elements of the new regulation, being outlined as a distinct category of reparable damage. -
In this study, the author makes an analysis on the right to life, with emphasis on the moment when the right to life begins to flow, including from the phase of conception of human life, by reference to the case law of the European Court of Human Rights and of other courts outside the European Union, following that, in the final part of the study, an analysis be made on the current criminal provisions protecting the right to life in its incipient phase and the compliance of these provisions with the standard required by the Convention.
