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This study aims to debate the question of the moment when the prosecutor should address the preliminary chamber judge in view of ordering the safety measure of the special confiscation, a procedure provided by the provisions of Article 5491 of the Criminal Procedure Code, by reference to the moment of adoption of the processual solution of abandonment of the criminal prosecution, according to Article 318 of the Criminal Procedure Code. As a result of a non-unitary judicial practice, the author elaborates a few theses to decrypt the relevant provisions, he emphasizes the lack of uniformity of the judicial solutions and offers a way of settlement of the legal problem under dispute, which is perfectible. -
The paper aims to bring some clarifications regarding the typicality as an essential feature of the offence, as it is reflected in Article 15 of the Criminal Code. In fact, the paper begins by noticing that the typicality or providing the deed in the criminal law was the first of the essential features of the offence identified by the representatives of the Classical School. At the same time, it notes that, if initially typicality included only the objective requirements of the offence, now it is admitted to have a wider content, including both objective and subjective elements, as well as anti-judiciality elements. Through his study, the author brings some doctrinal explanations about the notion of typicality.
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The study analyzes the land registry actions covered by the Decree-Law No 115/1938, by the Law No 7/1996 and by the new Civil Code, the conditions of admissibility of these actions, their features and their effects, the differences of legal regimes being also presented. Thus, the advertising system based on land registries has in its content, in addition to its specificity, which gives it superiority in relation to the former system of advertising through registers of transcriptions-inscriptions and civil actions regulated in order to satisfy this superiority and which are intended to facilitate the civil legal circuit within that system. Likewise, the study also analyzes the correlation of these actions with the civil action in performing a sale and purchase preliminary contract, identifying the specificity of the correlation in different historical periods. The specificity of the land registry actions is presented also from the perspective of the application of the civil law over time, evoking the incidence of a temporary law in this field.
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The study aims to analyze the particularities of the cases of resolution of the maintenance contract, a contract that has its own, express regulation in the new Civil Code, as novelty. Some of these cases of resolution are expressly indicated in Article 2263 of the new Civil Code, and for other cases reference is made to the application of express provisions specific to the life annuity contract. As novelty, the new Civil Code (Article 2255) provides for the conclusion of the maintenance contract in authentic form, under the sanction of absolute nullity, a modification with implications on the resolution of the contracts because the conditions of execution will be clearer. The study analyzes the cases of resolution, which are the specific aspects and effects of the resolution of the maintenance contract. The analysis of the cases of resolution of the maintenance contract is made by identifying some relations and delimitations against the life annuity contract. The article examines whether the resolution is a cause of cessation of the contract or a sanction for the non-performance of the contract without justification, the last solution being the suitable one.
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This study is dedicated to the Special Part of the Criminal Procedure Code, in terms of the amendments brought by Law No. 202/2010, with reference to criminal prosecution, judgment on the merits, ordinary and extraordinary means of challenge, enforcement decisions or special judgment procedures. The study contains equally an analysis of the new regulations introduced in the field of recourse in the interest of the law. The text comments concerning the referral of the case to another Prosecutor’ Office, the information of the next hearing date, the judgment in case of admittance of guilt, the limits of the recourse judgment, the procedure in case of review can be indicated as examples. For an easier understanding of the study, the sequence of the analyzed legal regulations complies with both the structure of the Criminal Procedure Code, and with the chronology of the texts of the amending laws. Otherwise, given the fact that the work is especially addressing practitioners in criminal law and in criminal procedural law and given the fact that, for reasons of economy of the publishing space, the amended or amending texts were only rarely and partially reproduced, authors believe that the latter should be concomitantly available for a complete understanding of the study. With special reference to the contents of the second part of the study, emphasis needs to be placed on the fact that the work tried to highlight both the progressive and positively innovating provisions in the criminal procedure, and certain errors, non-compliances or legislative omissions or potential lack of correlation with the constitutional provisions. CUMPĂRĂ ACUM -
Government Emergency Ordinance No. 71/2009, serially amended and supplemented by Government Emergency Ordinances Nos. 18/2010 and 45/2010 established that Court decisions that became enforceable until December 31, 2009 and that concern salary rights to the benefit of the personnel from the budgetary sector shall be paid by budgetary authorities and institutions as follows: 34% in 2012; 33% in 2013; 33% in 2014, of the value of the enforceable title. The author considers that Government Emergency Ordinance No. 71/2009 (as amended and supplemented) does not infringe Protocol No. 1 to the European Convention on Human Rights and Fundamental Freedoms, as well as the applicable jurisprudence of the European Court of Human Rights.
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Law no. 272/2004 regulated – in the aggregate – the legal regime of protection and promotion of the rights of children in Romania. In the research hereby, the author conveys some viewpoints on the rules of law mentioned in relation to the exercise of parental rights and responsibilities when determining the special protection measure of placement by the child protection committee, committee settled by the same law. -
The article presents the extended confiscation from the perspective of the Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Properties, supporting the opportunity of its transposition into the domestic law, considering justified the fact that the perpetrator of a crime is required to prove the illicit origin of products presumed to be connected with a crime of a certain seriousness, by reducing or reversing the burden of proof as regards the source of the properties held by a person convicted for an offense related to organized crime, under a special procedure established by law. -
In the current stage, the economic-financial crime represents the main factor through which the consolidated State budget or the special budgets are deprived of important financial sources. In this article, the author has intended to make an analysis of the tax evasion crimes committed by withholding and not paying to the State budget, within the legal periods, the amounts representing taxes or withholding taxes, with direct consequences both on the budgetary resources and on the social insurance rights of the employees.
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Starting from the provisions of art. 51 of the Constitution of Romania (regulating the right to petition), of the Government Ordinance no. 27/2002 (ordering the public authorities and institutions to solve the petitions of citizens within 30 days after the date of their registration), corroborated with a series of provisions of Law no. 554/2004 on administrative claims, also taking into consideration the case law in the matter, the authors examine in detail the regulations in this field and, in the end, correlating all these facts, they tend to draw conclusions in the field examined.
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Taking into consideration that this is a matter in which there are serious controversies in the doctrine and multiple contradictory solutions in the legal practice, this feature (unity or plurality of passive subjects) should not be mentioned as a constitutive feature of the continued crime, thus suggesting the idea that the solution had the adhesion of the entire doctrine. In this respect, the solution of the criminal law in force, which defines continued crime without adding the mentioned feature, seems fairer to us than the solution provided by the new Criminal Code.
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The author, starting from a personal opinion, expressed in a previous study (published in the year 2000), namely that the employment relationship of the public servant represents a typical form of a legal employment relationship, a relationship that, although different from the individual employment contract (the archetype of the legal employment relationship), is not yet essentially different from the latter and, consequently, from a logical and legal point of view, the employment relationship of the public servant is a basic component of the labor law (legislation), emphasizes afterwards that, in recent years, one can note, from the legal point of view, a continuous reduction of differences between the legal employment relationship of employees and that of public servants. Further on, the author presents the typology of the current legal employment relationships, namely: the legal relationship of employees (generated by the conclusion of the individual employment contract, regulated by the Labor Code); the legal employment relationship of public servants (generated by Law no. 188/ 1999 on the Statute of Public Servants or by some statutes regarding special categories of public servants such as, for instance, police officers, diplomats and consuls, customs personnel etc.); the legal employment relationship of career military personnel (non-commissioned officers and officers – Law no. 80/1995); the legal relationship of persons holding a public office position; the legal employment relationship of magistrates (whose statute is subject to Law no. 303/ 2004); the legal employment relationship between the cooperative company and the cooperative members (Law no. 1/2005). As regards this typology of legal employment relationships, the author believes it is fundamentally erroneous to limit the object of labor law exclusively to the legal employment relationship of employees (regulated by the Labor Code), and firmly believes that all the above-mentioned legal employment relationships are, in his monist vision of the labor law, components of the Romanian labor law, whose summa divisio is made of the common labor law (regarding the legal employment relationship of employees, based upon the individual employment contract that is regulated mainly by the Labor Code provisions) and, on the other hand, of the special labor law (comprising the legal employment relationships of civil and military servants, persons holding public office positions, magistrates and cooperative members), a special labor law focused on regulations other than the Labor Code, but for which the Labor Code still represents common law.
