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The article analyzes the waiver of penalty as a new institution in criminal matters, the utility, the legal enforcement mechanisms, and its legal effects in the field of criminal repression. -
The author, by accurately examining Book IV of the new Romanian Civil Code (regarding the inheritance and the liberalities), entered into force on 1 October 2011, notes that, as a rule, like in the previous Civil Code of 1864, there are some more important institutions of successoral law which, in his opinion, may be considered controversial (questionable), inopportune or unclear such as, for example: – the notions of „heir”; „successor”; „inheritor”; – whether the status of heir is affected or not by disinheritance or by the waiver of inheritance; – whether the contractual appointment and the preciput clause are two separate legal institutions or not; – whether the successoral reserve has an individual or collective nature; – whether the prohibition of the (mutual) consummated will is opportune or not; – whether the successoral option is always a disposition act or not; – the inopportunity of the multiple vocation to inheritance; – the questionable nature of the utility of the „seizin”. -
Știința juridică românească din ultimii 60 de ani este marcată major de activitatea desfășurată de Institutul de Cercetări Juridice al Academiei Române (în continuare denumit ICJ sau Institutul). Într-adevăr, creat într-o anumită conjunctură istorică, acesta a reprezentat prima „instituționalizare” a acțiunii de cercetare științifică a dreptului în țara noastră, și-a cucerit rolul de „centru” național de desfășurare și coordonare în domeniu, iar prin performanțele și rezultatele obținute s-a manifestat ca lider absolut în materie, beneficiind de contribuția fondatoare a unor personalități remarcabile ale științei dreptului românesc, precum Traian Ionașcu, Vintilă Dongoroz, Mihail Eliescu, Salvador Brădeanu, Eugen A. Barasch, Petre Anca, Yolanda Eminescu ș.a. -
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This study raises for discussion the current meaning of the term „commercial arbitration” within the text of Article 146 d) of the Constitution since, presently, under Article 3 of the current Romanian Civil Code, corroborated with Article 8 of the Law No 71/2011, and of other normative acts issued for the application and the development of the provisions of the Civil Code, the latter is „monistic”, in the sense that the new civil legislation has abandoned the traditional division into civil legal relations and commercial legal relations, a duality that existed in the legislation of private law in Romania until 1 October 2011. -
In this study the author examines mainly the problems of the meaning, scope of application and effects of the provisions of Article 123 of the new Law (No 85/2014) on the procedures for preventing insolvency and of insolvency referring, on the one hand, to the possibility of „denunciation” of the individual labour contracts of the debtor’s employees (undergoing insolvency) by the judicial administrator/judicial liquidator and, on the other hand, to the „dissolution” of the labour contracts of those in question, pointing out that we are in the presence of two distinct grounds for cessation of the labour contract of the employed personnel of the debtor. -
This paper aims to analyse the interconnectivity between the will of the donor and the general validity requirements for donations in the Romanian civil law. As part of the continental tradition of civil law, the 2009 Civil Code of Romania maintains the will theory at the forefront of its contract law. Within this framework, the legal concept of will encompasses the mental process of volition, during which the individual reflects and arrives at a decision, and the utterance of said decision. As a result, the notion of free will forms the foundation of contractual freedom. Through its gratuitous nature, a donation is both a contract and an act of liberality. As such, the legislator’s reluctance in the field of liberalities has influenced how the general requirements of validity were ultimately shaped. Liberalities are demarcated, from the volitional point of view, by the liberal intent of the donor, and from the economic standpoint, by the reduction of the donor’s patrimony. This impoverishment of the donor is the source of the legislator’s reluctance. Thus, our effort sets out to trace the influence of the liberal intent upon the general validity requirements of a donation contract. For this purpose, the present paper is divided into four main sections, corresponding to said requirements: cause, consent, capacity and object. While cause and consent derive naturally from the will theory, capacity and object were also subordinated to the liberal intent of the donor. As such, the common incapacity was entwined with a special variant which absolutely presumes the suggestion or captation of the donor’s mind. In regard to the object, the donor cannot dispose of the good belonging to another, unlike in the case of a sale contract. -
In this article, the author asserts with scientific and text arguments that, anytime art. 911 of the Criminal Procedure Code is interpreted as allowing the wire tapping or recording of calls or communications outside the criminal trial (namely without even starting in rem the criminal prosecution in rem), namely in the stage of preliminary acts, this is unconstitutional. -
Equality of citizens before the law and before the public authorities is a fundamental category of the theory on social democracy, but also a condition of the state of law, failing which constitutional democracy can not be conceived. The Romanian Constitution expressly enshrines this principle. However, there are also particular aspects of this principle enshrined in the Basic Law. Equality before the law and before the public authorities can not involve the idea of standardization, of uniformity of all citizens under the sign of the same legal regime, regardless of their socio-professional situation. The constitutional principle of equality implies that equal legal treatment should be applied to equal situations. This social and legal requirement implies numerous interferences between the principle of equality and other constitutional principles: the principle of identity and of diversity, the principle of pluralism, the principle of unity and, in particular, the principle of proportionality. In this study, using theoretical and jurisprudential arguments, we intend to demonstrate that in relation to contemporary social reality equality, as a constitutional principle, is a particular aspect of the principle of proportionality. The latter expresses in essence the ideas of: fairness, justice, reasonableness and fair adequacy of the decisions of the State to the factual situation and the legitimate aims proposed.
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According to Article 172 (12) of the Criminal Procedure Code „After the finalisation of the fact-finding report, whenever the judicial body considers necessary the opinion of an expert or whenever the conclusions of the fact-finding report are contested, an expertise shall be ordered to be made.” This legal text is not correlated with the rest of the provisions of the Criminal Procedure Code in force, nor with the other provisions of the previous codes, therefore, in the author’s opinion, this fact is likely to give rise to controversies. In a different line of ideas, the author argues that the legislator imposes as processual remedy that upon the finalization of the fact-finding report, in case its conclusions are only contested, to order an expertise to be conducted. This hypothesis is even more questionable as there is the possibility that the judicial body appreciates that the opinion of such an expert is not necessary. Thus, the legislator acts instead of the place of the judicial body in deciding on the admissibility of such means of evidence. Starting from such an inadvertence, in a given case, although the judicial body has concluded on the lack of utility and conclusiveness of an expertise, taking into account that one of the subjects to the trial, a defendant in this case, has contested the conclusions of some previous technical-scientific reports and even of an initial expertise report, both the prosecutor, during the phase of criminal prosecution, and the judge, during the phase of trial, had to admit, according to the text of the law, the contestation or the application of that subject to the trial respectively and thus to order an expertise to be conducted. The author believes that the mentioned text provision is also contrary to the contents of several normative acts that provide the independence of the judge and of the prosecutor in the activity of criminal investigation and in the phase of trial, as well as their exclusive competence to decide on the processual acts and measures, as the case is undergoing the phase of criminal prosecution, of preliminary chamber or of trial. Moreover, in support of the opinions which the author has expressed in this article, he also brings arguments of comparative law, showing that the analysis made has not identified legislations or points of view from other countries, convergent with the text of Article 172 (12) of the Criminal Procedure Code. In conclusion, for the reasons shown within this article, the author appreciates that it is required a reconsideration and reformulation of the text of Article 172 (12) of the Criminal Procedure Code from the legislator. -
The study has mainly in view the involuntary hospitalization of a person with mental disorders as a civil protection measure, as regulated by the Law on mental health and protection of persons with mental disorders No 487/2002, republished. In order to complete the characterization of this measure, the paper has also approached the aspects concerning the protection of the person suffering from mental disorders and that are governed by the Civil Code, but also by the new Criminal Code and the new Criminal Procedure Code. -
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. -
In this study, starting from a decision of the Bucharest Court of Appeal, the author examines two important aspects in the field of labour relations. On the one hand, he speaks about the incidence of the legal obligation of loyalty exclusively during the performance of the individual labour contract and, on the other hand, about the possibility of the court properly seized to judge the application of the employee on challenging the dismissal decision, although the decision in question did not contain accordingly all the elements required by Article 252 (2) of the Labour Code. -
Some constitutional precepts may arise through case law path and, depending on their importance as real or formal sources for the constitutional law, there may be included in the constitutional base, as prof. I. Deleanu noticed. It is similar case for the constitutional category formed by the democratic traditions of the Romanian people. The present study aims the application of the historical interpretation method in the Romanian Constitutional Court case law, that produced two main effects. A first well-known effect of this type of constitutional case law is the adoption process of the Romanian democratic traditions in the Romanian Constitution. The application of the retrodiction in the Romanian Constitutional Court case law, as specific practice of the historical method, produces a second type of effect on the interdisciplinary category represented by the democratic traditions of the Romanian people, that, by nominating the legal or political documents that are representative for the political history of our country, may lead to the detection of the founding document for the Romanian constitutionalism. In the next place, the study aims to answer the question referring to the public law document belonging to the national political history, whereat the constitutional resort will insist in the process of building a new constitutional precept, that involves the reconnection of the constitutional tradition to an originated democratic and national stream, guiding also the sense of its foundation through the praetorian anchoring to the oldest document that typologically corresponds. -
The study deals with the manner in which the provisions of Article 227 (1) of the Criminal Procedure Code should be interpreted. It emphasizes that, although it should have been a relatively easy activity, by reference to the historical perspective, to the evolution of the texts which regulated this matter over time and to the rules set by the ECHR case law with reference to the preventive deprivation of liberty, reality proved that the judicial practice had encountered serious difficulties in interpreting and applying the provisions in question, with important repercussions also on other institutions in relation to the preventive measures. This doctrinal approach intends to analyze the different interpretations of Article 227 (1) of the Criminal Procedure Code and to propose a thoroughly reasoned manner of interpretation and application. -
The Romanian Labour Code (the Law No 53/2003, republished on 18 May 2011) provides, in Article 38, that „Employees may not waive the rights recognized to them by law. Any transaction which aims at waiving the rights recognised by law for the employees or at limiting such rights shall be null.” The author starts from the premise that this legal text, which could also be found in the previous Labour Code (Law No 10/1972), should be reconsidered, however, in the light of the social order of today, of the principles and of the requirements of the market economy and of the dynamics of the labour relations and of the labour market. Considering the above, the author formulates, in accordance with the Romanian labour law doctrine as well, a flexible interpretation of Article 38 of the Labour Code, also taking into account a series of texts of the new Romanian Civil Code, which entered into force on 1 October 2011, by rallying, at the same time, to a number of de lege ferenda proposals elaborated in the labour law doctrine over the last years. -
As a fundamental instrument for ensuring the functioning of the European Union legal order, the action for the non-compliance with the European obligations is the judicial instrument by which the Union authorities, led by the Commission and the Luxembourg jurisdictional structure, exercise direct control over the conduct of the Member States in relation to EU law imperatives. Located somewhere in the middle between the legality control and the action for liability, the non-compliance with the obligations raises separate and complex issues difficult to understand in the absence of the vast jurisdictional experience of the Court of Justice of the European Union. If, under procedural terms, the present action does not present particular challenges, imposing, as a rule, a mechanism for cooperation between the European Commission and the defendant Member State (as a pre-contentious phase), in which the Court of Justice often plays a subsidiary role (contentious phase), from a material point of view, the non-compliance with the European obligations involves different forms and meanings that transcend both the letter and the spirit of the treaties, even in their current form, consolidated after the Treaty of Lisbon (2009). In such a context, the present study aims to review the most frequently used meanings which the case law of the Court of Justice of the European Union has given to the phrase „non-compliance with European obligations”, in the light of current regulations, past experiences and, last but not least, the aim pursued by this procedure, namely to sanction any derogation from the uniform and synchronized application of the European Union law.
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This study has as object the incidental regulations in the matter of illegal border crossings and of asylum, as well as how they intersect, and it intends to find an adequate solution for what happens with the criminal prosecution, in the cases of fraudulent crossings of the state border, in the course of solving the application for being granted a form of protection submitted by the person who has illegally crossed the border. It is proposed the intervention of the legislator in the sense of introducing a rule which provides as cause of suspension of the criminal prosecution the situation where the person wanted for the fraudulent crossing of the state border has subsequently submitted an application for being granted a form of protection and is subject to the asylum procedure. The need for such intervention is motivated by the ineffectiveness of continuing the criminal prosecution and of the settlement of the case provided that, at the end of the asylum procedure, the person concerned can be granted a form of protection from among those recognized by the Law No 122/2006, the cause of non-punishment provided in Article 11 of this law being thus incidental. -
This study proposes the approach of an identified problem with regard to the regulation of the manner of applying the complementary punishment of prohibition to exercise some rights. By the analysis made within this study, the author identifies a situation of inequity which can arise in precise cases between the case of the sentenced person conditionally released from serving the punishment of life imprisonment and the case of the conditionally released person sentenced to imprisonment in detention.
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Este foarte dificilă cercetarea noțiunei de ordine publică și determinarea conținutului acestei noțiuni este cu totul anevoioasă. Nu există, poate, în drept și în sociologie, o mai confuză noțiune, dar care să-și găsească mai variate câmpuri de aplicație și de care să se facă uz mai des, mai ales în ultimele timpuri, atât în relațiile particulare dintre indivizi, cât și în legăturile și raporturile dintre Stat și individ de o parte sau dintre State, de altă parte. Stabilirea conținutului exact al ordinei publice și analizarea tuturor efectelor sale depășesc cu mult cadrul normal al unui articol, chiar mai lung, dintr’o revistă juridică. Vom căuta totuși, în cele ce urmează, a schița rapid datele problemei, fără a pretinde că, în acest fel, am epuizat subiectul; de altminteri, intenția noastră nu este decât de a face o sumară introducere în examinarea acestui subiect a cărui analiză poate face obiectul unui întreg tratat. -
Article 78 of the Civil Procedure Code, paradoxically, evokes through its title an apparent exception to the principle of availability, however, through its content, it constitutes a confirmation of this principle. Given this apparent contradiction, it must be clarified whether, in the case provided in Article 78 (2) of the Civil Procedure Code, the party requesting the introduction of the third party in the trial after the judge has questioned the necessity of its introduction may formulate any new heads of claim involved in the enlargement, in this way, of the procedural framework. Also due to the phrase „ex officio” attached to this introduction, it must be concluded whether, for these possible new heads of claim, related to the introductory request, the requesting party must pay judicial stamp duty or, due to this reference to officiality, the party is exempted from such obligation. It must also be established whether to these new heads of claim it can be opposed the exception implied by the sanction of loss, referred to in Article 204 of the Civil Procedure Code, in the conditions in which they would be related to the introductory request.
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This article addresses the matter of the correct legal classification of the introduction of drugs into the country for personal use. Our attention was drawn whereas not only that the judicial practice of the national courts and the specialized literature are not unitary in terms of legal classification, but even the High Court of Cassation and Justice has pronounced diametrically opposed solutions. Within the paper, it is performed an analysis of the incidental texts of law and of the judicial practice in the field, as well as some aspects of legislative technique and criminal policy.
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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.
