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By Decision No 405/2016, the Romanian Constitutional Court (CCR) ruled that the provisions of Article 297 (1) of the Criminal Code (misfeasance in office or misconduct in office) are constitutional only if the sentence „fulfils wrongfully” has the meaning of „fulfils by breaching the law”. However, in more than two years from the publication of this Constitutional Court Decision, it is worth to notice that the jurisprudence of the criminal courts knows diametrically opposed interpretations. In one opinion, the Decision is interpreted as of the utmost generality, while a second opinion regards the CCR provisions as being of strict interpretation, whereas for the existence of the respective criminal offence is necessary that the public servant breach one of the laws that govern his activity or at least a provision that is part of its duties in office. The article presents the jurisprudence of the Romanian courts related to the crime of „misfeasance in office” while examining it in the light of the requirements of the principle of legality and of the CCR Decision considerations. -
Entrusting personal property to view and verify its operation does not constitute a waiver of its possession or detention, and the appropriation of someone else’s stuff touch-and-go in his grip stands for a fraudulent possession, which, without the consent of the victim, with strict reference to the stuff’s acquisition and not otherwise, shall be construed as crime of theft and not crime of fraud. -
Guaranteeing the right to defence is a fundamental principle under the Romanian criminal procedure law. Although it has strong constitutional and criminal procedure guarantees, however, its practical implementation is in some cases misinterpreted and, on the other hand, the prosecution bodies violate it sometimes, the consequence being the discrediting of the judicial process. The present article refers to jurisprudence in two cases where the defender’s right to question the opposing party and to inspect the prosecution file is restricted without legal basis. -
At this moment, the question of the application of the more favorable criminal law, as compared to the previous Criminal Code, of the existence of the transitional situations, of the comparative analysis of the criminalization norms of the current Criminal Code and of the provisions of the previous Criminal Code is less and less raised, but not all decisions pronounced by the High Court of Cassation and Justice in appeal in the interest of the law before 1 February 2014 have lost their applicability, as the opinions expressed in the specialised literature, regarding the different criminalization norms, in their evolution over time, are still of interest, both from a theoretical and a practical point of view. Although it entered into force relatively recently, the Criminal Code has undergone a series of changes, in its content, especially in the special part, either by criminalizing new acts, or by increasing the special punishment limits, or by introducing new aggravated variants of the already existing crimes. Considering the multitude of normative acts by which the provisions of the special part were amended and supplemented, we consider it necessary to analyze the way of drafting the various norms, having as a reference point also the various opinions from the recent specialized literature, with regard thereto. -
Although the European Union’s activities hardly integrate into the civilist logic of the „illicit legal act”, its non-contractual liability is triggered in particular for what the doctrine generically calls „behaviours” considered to be illegal. Even under this generous hypothesis, the Union liability can only be engaged under very strict conditions, less established by the Treaties and, rather, by the judge in Luxembourg, on the basis of some rules that discourage the litigants, limiting the possibility, in procedural and material terms, to bring such actions. The jurisdiction to settle the disputes concerning non-contractual liability of EU exclusively pertains to the European Unional jurisdictions, by applying Article 268 TFEU, which necessarily implies that the non-contractual liability of the Union must be engaged solely on the basis and under the conditions of EU law. Such an argument is fundamentally justified by the fact that engaging this liability very often implies that the scope of application is an appreciation of the Union’s policy, which is why the exclusion of the competence of any national jurisdiction appears to be natural.
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As a result of the particular regulation of a long-standing principle of European Union law, as of 25 May 2018, data controllers have an express obligation to process personal data „lawfully, fairly and in a transparent manner in relation to the data subject («lawfulness, fairness and transparency»)”. In the light of the arguments which will be presented in this article, it will follow that the principle of transparency gives data subjects the possibility to hold controllers and processors accountable and, in particular, to exercise concrete and effective control over their personal data, e.g. by giving or withdrawing informed consent, and by exercising regulated rights in favour of data subjects. In other words, by virtue of the principle of transparency, data controllers are obliged to take any measure necessary to ensure that data subjects – customers or other users – whose data are processed are fully and accurately informed. As regards the concrete way in which compliance with this fundamental principle can be ensured, the General Data Protection Regulation provides some guidance, stating in Article 12 (1) that the controller is obliged to take appropriate measures to provide the data subject with any information referred to in Articles 13 and 14 and any communications pursuant to Articles 15–22 and 34 relating to processing in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. Therefore, the information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means. Last but not least, information or communication should, as a rule, be provided free of charge. Throughout the article, on the basis of the doctrine and case law, the meaning of the notions used by the European legislator in Articles 5, 12, 13 and 14 of the General Data Protection Regulation will be explained. -
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The article analyzes the Decision of the Constitutional Court No 369/2017, by which the phrase „as well as in other requests assessable in cash worth up to ROL 1 000 000 inclusive” was declared unconstitutional. In the Civil Procedure Code, in Article 483 (2), there are listed the judgments that can not be challenged with recourse, among which there are the requests assessable in cash worth up to ROL 500 000. By Article XVIII of the Law No 2/2013, this threshold was increased to the amount of ROL 1 000 000 inclusive. We consider criticizable the establishing of the categories of court judgments that have eluded the recourse taking into account the value criterion and we propose to eliminate this criterion. In our opinion, we agree with the admission of the plea of unconstitutionality, which has eliminated the value threshold for the promotion of judgments that can be challenged with recourse. Likewise, we consider criticizable also the delimitation of the material competence between judges and tribunals, being based on the value criterion. In our opinion, the delimitation of the material competence must be made depending on the nature of the litigation brought to justice, not on the value criterion of the request for summons. -
The study analyzes the way in which the High Court of Cassation and Justice – the Panel for the settlement of the appeal in the interest of the law ruled on the unitary interpretation and application of the provisions of Article 472, Article 473 and Article 491 of the Civil Procedure Code, in the sense that the object of the incidental appeal or review, respectively the provoked one, may concern a part of the judgment of the court of first instance or of the court of appeal that was not challenged with a main appeal or review. In the opinion of the supreme court, it was considered that the provisions of Article 491 (1), Article 472 (2) and Article 473 of the Civil Procedure Code are not conditional on the filing of the incidental appeal/review or of the one provoked by the invocation of some grounds of appeal/review that concern only the provisions of the challenged judgment that were criticized by the main appeal/review, considering that the reasons of the incidental or provoked appeal/review may tend to annul the judgment challenged under any aspect that is of interest to the respondent declaring an incidental or provoked appeal/review. The main argument for adopting this interpretation is the premise of regulating the incidental appeal/review.
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The sale-purchase contract is undoubtedly, in the 21st century and in the landscape of the Romanian law, the most frequent contract used in practice, having an essential and decisive role in the organization and development of social and economic life. The complexity, variations and particularities of this contract, starting from its conclusion and until the exhaustion of all its effects, contribute to shaping the overwhelming importance of the sale, of the „standard contract” which is the most used legal instrument for transferring goods. In this context, the effectiveness, usefulness and practical applicability of a sale-purchase contract depend essentially on its structural, „anatomical” elements, namely the essential, intrinsic and extrinsic conditions of validity which directly determine the effects of the sale. Depending on these structural elements there are researched and assessed the validity of any contract, in whose absence its legal effects cannot operate, and, if they operate, they will be abolished with all the consequences which they entail. Thus, the valid formation of the sale contract implies more than a simple analysis of the mechanism of realization of the will agreement; it necessarily involves a detailed examination of the structural elements of the contract which are referred in the law as being „the essential conditions for the validity of the contract”. Any dispute which may arise, having as object a sale-purchase contract, will be based primarily on the analysis of the legal fulfilment of the very conditions of validity of this contract, which will unequivocally determine the subsistence of the contract, as well as the extent and applicability of its effects
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The behaviour of a free and conscious man is the result of his will, which is guided by a reasonable intentionality that gives it meaning. In the absence of a purpose, any action becomes chaotic, accidental and raises questions about the mental health of the person who takes action 1 . We find that the fourth essential condition, a substantive one, necessary for the valid existence of the sales contract is the cause. According to the rules of common law, in matters of legal acts, the cause is the determining reason for the consent expr essed when concluding the legal act. The obligation without cause or with an illicit or false cause cannot have any effect. -
In this study, the author examines Law No. 133/2011 for the amendment of several provisions of Law No. 360/2002 regarding the policeman’s status. The author has also certain positive appreciations on these amendments, but she primarily retains a series of negative sides on Law No. 133/2011, especially by the fact that the mentioned law provides that “the procedure and cases for modifying and/or suspending the policeman’s business relations shall be established under an order issued by the minister of administration and internal affairs”, which is, in the author’s opinion, contrary to the principles of the Romanian Constitution.
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The present study analyzes a series of civil procedure aspects – both in the light of the current Code of Civil Procedure, still in force, and in the light of the new Code of Civil Procedure (Law no. 134/2010, but still unenforced) – that are debatable, concluding that, for instance: z Sending a cause for retrial can only take place within the limited situations set forth in the Code of Civil Procedure (when the merits has not been investigated or trial has been made in the absence of the party illegally summoned). z Absence of the notice of adjournment of the pronouncement or not signing it can not be assimilated to non-investigation of the merits; z Absence or not signing the minutes represents a non-investigation of the merits; z Suspension of the court order execution, appealed by means of extraordinary appeal procedures shall be judged in the same composition by which the appeal is settled; z In order to establish the exercise of parental authority it is compulsory to enclose the social investigation report to the court case. -
The criminal procedure rules according to which the „transfer of procedures in criminal matters” is carried out are comprised in the international treaties and conventions to which Romania is a party, which are supplemented by Law no. 302/2004 on international judicial co-operation in criminal matters, plus the provisions of the Criminal Procedure Code. „The transfer of procedures in criminal matters” entails two manners of performance, according to the capacity in which the Romanian State is involved in its carrying out, namely: - delivery of criminal procedure; - reception of criminal procedure. -
After the entry into force of the Civil Procedure Code and of the Civil Code which introduced new institutions in the matter of family relationships, the Government Emergency Ordinance No 80/2013 on judicial stamp duties was adopted in order to reflect the new structure and dynamics of civil proceedings, new procedural safeguards afforded to parties in order to ensure a fair trial, as well as to cover additional costs for the development of infrastructure and to ensure the necessary logistics for the implementation of the new legal provisions. This study analyses the application of the provisions of Article 15 of the Government Emergency Ordinance No 80/2013 on the judicial stamp duties. -
The enforcement of enforceable titles consisting of judgments regarding budgetary claims, owed on the basis of some contractual legal relationships, which become revenue to the state consolidated budget, was a distinct issue dealt with in the practice of the courts of law, as a result of different legal application and interpretation of incidental legal texts. It was the judicial practice that led to the intervention of the High Court of Cassation and Justice, called upon to issue a preliminary ruling for the settlement of a matter of law regarding the interpretation of the provisions of Article 623 of the Civil Procedure Code in relation to Article 220 (3) and (5) and Article 226 (3) of the Law No 207/2015, in the light of Article 3 (1) of the Law No 273/2006 and Article 3 point 18 of the Law No 69/2010. The solution of the High Court of Cassation and Justice confers the competence of enforcement of the above-mentioned obligations to the tax executors, as executing authorities of the State.
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While the matter of the restoration of real estate abusively seized by the communist state has raised a special interest, both from individuals and from authorities, the subject of the restoration of movable cultural property remained relatively marginalized until the coming into force of Law no. 182/2000, which provides the persons entitled with the possibility of an action for special recovery of movable property, for the purpose of recovering ownership over the movable cultural property illegally seized by the State. This study intends to examine this matter, focusing on the essential aspects of the action for special recovery of movable property put into operation by the lawmaker. -
Within this study, the author has analyzed, in the light of the new Fiscal Procedure Code and also of the current one, the forms of the sanction of the fiscal obligation and the mechanism of their operation depending on the category of creditors that may be, on the one hand, the fiscal bodies, and, on the other hand, the taxpayers that are entitled to the refund or the reimbursement of some amounts from the public budget. Similarly, the author has made the necessary distinctions between the types of sanctions depending on whether the fiscal claims pertain to the central budget or to the local budget. Finally, the author has analyzed the modalities of granting the delay interests for the failure to refund the amounts from the budget due to the taxpayers depending on the cause which has generated these fiscal claims, respectively the fault of the fiscal bodies or of the taxpayers themselves. -
In this study the author carries out a summary of the anti-competitive practices, of the applicable laws at the national and European level, of the investigation and control procedures. Thus, the anti-competitive practices, the different views of the American law system and the European law system are examined regarding these practices and their impact on the national and world economy, the actions taken by the supervision and control authorities for their incrimination, the applicable sanctions. -
The cases that justify a home search are still the subject of important controversies both in doctrine and especially in practice. Also, the delimitation between the situation in which the criminal investigation agents enter a person’s home in order to carry out a home search and the situations in which the police agents are obliged to enter a home to fulfil their duties is of ten extremely sensitive. It is precisely these controversies that often lead state agents to be reluctant to enter a private space in order to avoid being accused of committing a crime. We hope that this study will prove to be a useful tool in identifying those hypotheses in which it is really necessary to resort to a home search as well as the criteria for delimiting the search and other institutions of criminal procedural law.
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The institution of course of justice interruption was first introduced in the criminal procedure of Romania in the Charles II Code of Criminal Procedure (1936), being kept in the current Code of Criminal Procedure [Art. 29 point 5 item b)] and also in the new Code of Criminal Procedure adopted by Law No. 135/2010 [Art. 40 paragraph (4)]. The author shows that the Romanian legislator failed to clarify this phrase, leaving the identification of the cases of interrupting the course of justice to the legal literature, but especially to the case law. The case law of the High Court of Cassation and Justice may conclude that the “interrupting the course of justice” phrase requires the occurrence of a criminal case pending before a court of law which has no possibility of achieving the ultimate goal of the trial due to inapplicability of any of the procedural provisions relating to jurisdiction, so that the competent court to order a legal solution cannot be determined. -
This paper approaches the theme of disuse as a modality of lapse of the subdivisions of the property right. If the property right, given its perpetuity, does not lapse by disuse, its subdivisions, which are mostly temporary, shall lapse by the failure to exercise the right. The sanction is expressly regulated by the present Civil Code in matters of usufruct and servitude and it is applicable, for identity of reason, to use and habitation. The study also examines the extent of interference of the disuse with the acquiring of the subdivided right by usucaption, as well as the consequences that it might have the legal nature of the limitation period acknowledged to the disuse period. -
The study deals with the directions of the very probable, and at the same time, the possible review of the Constitutional Court. The starting point in this analysis is to identify the Romanian specific in the control of constitutionality of the period before and after the Revolution of December 1989, compared to models offered by other member countries of the European Union. The review of criticisms that have been made ”to the Constitutional Court and the solution chosen by the Constituent Assembly of 1991 will lead in the final part of the study to the drafting of the possible solutions to be considered by the future constitutional review to make the constitutional justice in Romania more legitimate and more effective. -
Mediation is governed by Law No 192/2006. In criminal matters, mediation is a restorative practice designed to solve the conflict between the parties involved. For a limited number of offences a criminal mediation agreement has the effect of preventing the initiation of criminal prosecution or ending criminal proceedings. This does not mean that parties may come to an agreement on the criminal aspects of the criminal proceedings as the legislator may seem to let us to believe. The only aspect on which an agreement may be reached concerns withdrawal of a prior complaint or reconciliation of parties in case of certain offences; these are impediments distinctively regulated in the mediation agreement. As a matter of fact, the consensus between parties in criminal proceedings, contained in the mediation agreement, exceeds the limits imposed by what is usually considered as the criminal aspect and the civil aspect of those proceedings. Through their will, parties may limit themselves to an agreement only on civil claims within criminal proceedings. -
In the absence of technical basis, the two criticized normative acts, through the refusal of the legislature to consider the reactions of all actors involved and relevant institutions, the legislature has transformed the principles of law and rules of law into abstract and worthless rules that can be violated at any time. The intervention of the Constitutional Court through its two decisions (Decision No 623/2016 and Decision No 62/2017) restored legal order, which was seriously violated by these acts. -
The modality of enforcement through garnishment involves the existence of a legal relationship, in which the pursued debtor has the quality of creditor, and the garnishee has the quality of debtor, a legal relationship used by the pursuing creditor in order to realize the claim from the writ of execution. The garnishment knows two phases, the one of establishment and the one of validation, the second one intervening only if the garnishee fails to fulfil its obligations as a result of communicating the address for establishment of garnishment. The application for validation of the garnishment is a veritable application for summons, its finality being to obtain a writ of execution by the executing creditor against the garnishee. The study examines the defences which the garnishee can invoke in the court of validation, having regard to the legislative solution provided by the current Civil Procedure Code, according to which a garnishee is forbidden to file a contestation to the enforcement against the acts establishing the garnishment, the latter being able to use his defences only before the court of validation [Article 787 (5) of the Civil Procedure Code]. Therefore, the processual means of invoking the defences before the court of validation are analyzed, being questioned the admissibility of the garnishee’s filing of a counter claim aiming at the cancellation of the juridical act from which the relationship between him and the debtor arose. The defences of the garnishee are analyzed starting with the distinction between defences on the merits and the processual and procedural ones, in relation to the possibility conferred to the third party to invoke against the creditor all the pleas and defences that he may oppose to the debtor, to the extent that they are prior to the establishment of garnishment [Article 790 (3) of the Civil Procedure Code].
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In this study, the author, starting from the provision written down in Article 60 (1) c) of the Labour Code, according to which the dismissal of the pregnant employee is forbidden, as far as the employer was notified of this fact prior to the issuing of the dismissal decision, considers that the interpretation of this legal text should be performed extensively, in correlation with the provisions of Directive 92/85/EEC and, as such, the interdiction in question is also incidental, for example, in cases of dismissal of the employee in the trial period, of hiring the employee under a fixed-term contract or even if she did not notify the employer about her pregnancy condition prior to dismissal, if the failure to notify is not the consequence of bad faith of the person concerned and others. -
In this paper the author discusses whether a declaration of enforceability of the mortgage agreement is made by the court by way of absolving procedure (non-contentious) or, alternatively, via litigation. Based on fully reasoned arguments, it is concluded that, in this case, we face a contentious proceeding and not an absolving (non-contentious) one.
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Offences against police officers or gendarmes (in Romanian, ultraj) are regulated under Article 257 (4) of the Criminal Code, which provides that such offences shall be harsher punished, by increasing the special limits of the penalty by half. In order to apply the above-mentioned dispositions in a fair manner, the Panel for Clarification of Criminal Legal Aspects of the High Court of Cassation and Justice was requested to render a preliminary judgment by which to clarify if „the concept of police officer provided by Article 257 (4) of the Criminal Code shall be construed restrictively as referring only to police officers whose activity and status are regulated under Law No 218/2002 regarding the organisation and functioning of Romanian Police and under Law No 360/2002 regarding the Police Officer Status or more widely, as also including local police officers whose activity and status are regulated under Law No 155/2010 on Local Police and Law No 188/1999 on the Status of Civil Servants”. This article proposes an analysis of the relevant jurisprudence and provides arguments to support that the aggravated version of the crime regulated under Article 257 (4) of the Criminal Code shall be applied when the offence is committed against a local police officer.
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According to art. 32 of the Land Property Law no. 18/1991 (republished on January 5, 1998) in the case of „establishing” the right of ownership as provided in this law, the land thus attributed to individuals „shall not be alienated by documents between the living for 10 years, starting from the beginning of the year following the one during which the property was registered, under the penalty of absolute nullity of the alienation document”, the city hall, the prefect’s office, the prosecutor’s office or any other interested person being entitled to file a claim for the ascertainment of nullity. The author discusses the general cases resulting from this text of law, and in principal whether the 10-years term lapses (is counted) from the „registration” of the property in agricultural registries or from its „transcription”, or „registration” of an alienated property in transcription registries, namely its „registration” in the Land Book.
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The penal clause gives the advantage of leaving to the parties, and not to the law court, to fix the amount representing compensation for the damage incurred, this way the parties being informed, from the time of conclusion of contract, on what and how much the costs would be if they fail to fulfil the obligations assumed, being, from this point of view, a mechanism not only of defense against the consequences of a damaging non-performance, but also of constraint, both legal and moral, not allowing the parties to hope that, maybe, they will not pay or will pay much less for „breaking” the contract. This study examines the functions of the penal clause, namely the function of guarantee of performance of obligations, the function of mobilization of the debtor to perform its obligations, the sanctioning function and the compensatory function. At the same time, the study analyzes the consensual, incidental, sanctioning and reparative nature of the penal clause, as well as the legal nature of this type of clause. -
Formalism is often a topic of discussion approached by reference to the form of the juridical act, more precisely to the consent externalized and recorded in a solemn act. This act is frequently outlined in the form of a notarial act, composed of two parts: the externalization of the manifestation of will of the parties and the findings of the notary public (recorded in the conclusion of authentication). The formalities presuppose any legal procedure which gives rise to a certain form and that adds safety, effectiveness and opposability to the manifestation of will. The notarial succession procedure is characterized by three procedural stages and ends with a conclusion of the notary public: the first part of this decision records the persons participating in the succession debate and the statements of those present, and the second part contains the findings of the notary public with regard to the statements of heirs in the first part of the conclusion. This conclusion issued within the succession procedure has the probative force of an authentic document, on the basis of which the certificate of heir is issued. In this study we intend to make a brief presentation of the procedural formalism, of the formalities prior to and subsequent to the conclusion of the civil juridical act. The notarial deed is the result of a concurrence between the manifestation of will of the party (or parties) and the obligations of the notary public which have a single result: the elaboration of a juridical act in accordance with the legal norms and good morals. The analysis is relevant to allow a comparative look between the formalities necessary for the elaboration of a notarial act and the formalities of the notarial succession procedure, which is completed by the certificate of heir, an act of a special legal nature.
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Formal validity of an arbitration agreement is closely linked to the consent of the parties to arbitration. The requirement of arbitration agreement in written form is intended to ensure that the parties actually agreed on resolving the dispute through arbitration. Therefore, matters related to the performance of formal requirements of arbitration agreement and the necessary approval for arbitration, expressed under the arbitration agreement, are often interrelated and jointly approached. In accordance with the Convention of New-York (1958), the arbitration agreement enforcement, and of any other decision, requires an arbitration agreement concluded in writing. The formal requirements do not necessarily promote legal certainty, frequently being sources of circumstantial disputes. For these reasons, the requirement of arbitration agreement in written form, in most national laws and under the Convention in New York, was more liberally construed. In any case, the requirements of the arbitration agreement to be concluded in written form should be construed more dynamically, in the light of modern means of communication. -
Where other civil parties call for broadening the effect of declared appeal on the criminal side of the case and on other civil parties, and as far as conditions applying the extensive effect of the appeal are fulfilled, the judicial review court is bound to give effect to the provisions of Art. 373 in the C. Cr. Pr., obviously complying with the principle of non reformatio in pejus. The author argues that a contrary approach would be vulnerable and devoid of legal grounds, intended to set off the extensive effect of appeal from its purposes, which basically leads to the functional requirement of a court of appeal, consisting in examination of the case by extension, to be circumscribed to appeal statements. Thus, argues the author, it would add unacceptably to the law by way of interpretation, contrary to the principle of ubi lex non distinguit nec nos distinguere debemus.
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The article examines certain problems that have occurred in practice in relation to the institution of retrial in case of extradition for persons convicted by default, namely the possibility to order, after the admission in principle, the entire or partial suspension of the decision whose retrial is requested, the moment as of which the pronouncement of a decision regarding the admission of such retrial produces legal effects, both as regards the annulment of the former conviction decision, and regarding the annulment of the punishment execution warrant, with direct implications on the release of the person in question, as well as the impact of the legal provisions regarding the intervention of the special prescription of criminal liability, upon the retrial of such a case.
