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The article hereby reviews the arguments on the need for detention of the presumption of innocence in contravention and, therefore, the proper application of the provisions of art. 6 of the (European) Convention on Human Rights and Fundamental Freedoms. Arguments are the result of uniform and consistent theories and practices of the European Court of Human Rights and the provisions of the Constitution of Romania, republished. Given these arguments, the author considers that the presumption of innocence in contravention is mandatory for the Romanian courts when a complaint of contravention is submitted for trial against a sanctioning act. In conclusion, it urges that the High Court of Cassation and Justice order by an appeal, in the interest of the law, guidance for uniform practice in contravention and / or the legislator to amend laws on this issue, to that effect. -
The following study reviews the Ukrainian and Romanian legislation regarding the protection of persons belonging to the Romanian minority in the Republic of Ukraine. The author concludes that relevant statutory regulations exist, but their actual implementation leaves much to be desired. Finally, it is considered that the Romanian State must have the legal and moral duty to participate actively in the life of Romanian communities in neighboring countries (among which Ukraine is included), but obviously by observing the principle of sovereignty and noninterference in internal affairs of these States.
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Based on provisions of art. 20 of the Romanian Constitution, republished, and considering the provisions of art. 5 para. 4 of the Convention on Human Rights and Fundamental Freedoms, the principle of equality of arms and related jurisprudence of the European Court of Human Rights (ECHR), the authors argue that both de lege lata, and in terms of the new Criminal Procedure Code, the detainee is in a position of net disadvantage to the prosecution represented by the prosecutor, since the defendant to whom, on the merits, the request for revocation of preventive detention or its replacement was rejected, it is not given the opportunity to effective remedy. Consequently, the authors make some suggestions de lege ferenda in order to regulate this situation in accordance with the provisions in Constitution and the ECHR jurisprudence.
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According to art. 20 para. 2 in the Criminal Code, it is called tentative also in the case where „due to the fact that when the acts of execution have been committed, the object was missing from the place the offender believed it were”. This case is defined by the means and the material object, because these two entities are considered the effect’s agents. In the absence of the material object from the place where the offender believed it were, the criminal doctrine concluded two assumptions: first, called the relative impossibility, implies that the material object was absent from the scene while performing acts of execution by the author, while, in case of absolute impossibility, the material object was absent. For a complete image of the role the material object plays within the attempt, the author introduced also some references on the Italian, German and Anglo-American criminal law.
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In the study hereby, the author makes a comparative analysis of the problematics of conflict between freedom of the press and reputation in the jurisprudence of the European Court of Human Rights and the United States Supreme Court, respectively, managing to capture a number of differences regarding the deviation of the litigious issue.
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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.
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Rail freight contract in the Republic of Moldova’s Law is that contract by which the State Enterprise „Moldova Railways”, via a regional subdivision as carrier, undertakes in return of shipping charges (tariff) to transport within a given period, to watch over and to release the goods arrived at the railway station of destination to the person whose name is mentioned on the consignment note. Rail freight contract is a variation of contract for carriage of goods in general. Therefore, based on its legal regulation there are two categories of legal rules: general – the rules of the Civil Code of the Republic of Moldova and special – the rules of the Rail Code of the Republic of Moldova and other subordinate legal regulations. Special Rule enjoys priority over the general rule. The railway is a system of state concern, being monopoly enterprise within the territory of the Republic of Moldova. All railway territorial subdivisions are subordinated to the railway central government. In turn, the consignor may be a public or private legal entity or a natural person that submits merchandise to be carried for personal needs. The law does not require special conditions for shippers. Shippers individuals have the right to carry goods for personal needs, family, household and other non-related to the entrepreneurial activity. In this case, they shall be treated equally to all customers and shall be granted all rights under consumer protection legislation.
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In the research hereby, the author develops and substantiates her viewpoint, in the acceptance that the civil liability for medical malpractice stands for a new civil liability assumption for damage, i.e. neither a contractual, nor a tort liability, but a legal civil liability (derived from the special law, strictly applicable) designed to provide both a more effective protection of the patient and the medical staff.
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În raport cu dispozițiile art. 4 cu referire la art. 5 alin. (2) din Legea nr. 554/ 2004, este inadmisibilã excepția de nelegalitate invocatã cu privire la un act administrativ pentru modificarea sau desființarea cãruia prin lege organicã se prevede o altã procedurã judiciarã (Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal, decizia nr. 3386 din 24 iunie 2010).
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The authors argue that, exceptionally, the court (Pitesti Appellate Court) may postpone temporarily surrender of the person sought under a European arrest warrant, on the grounds of the need for care of minor children in charge of the person sought.
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In the study hereby, the author reviews provisions of the new Romanian Civil Code (enacted by Parliament, published in the „Official Gazette of Romania”, Part I, in July 2009, but still unenforced) on the artificial property accession, by reference to the current Civil Code (since 1865), still in force, and to the relevant Romanian jurisprudence and doctrine. Conclusion of the analysis is that, on the one hand, the new Romanian Civil Code in the matter of artificial property accession keeps the rules and principles enshrined in the current Civil Code, doctrine and jurisprudence, though it reveals the innovating desire of the new Code, where the current Code keeps silent.
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The study aims to demonstrate ability to expand criminal proceedings regardless of the current procedural stage, on grounds of its general trait of being indivisible, as well as its ways of expression during the prosecution phase within the procedural framework set forth in article 238 in the Criminal Procedure Code. There are also reviewed the legal nature of the ordinance extending the criminal investigation and its trial functions, as well as the legal effects of the expansion of criminal proceedings during the first stage of the Romanian criminal trial over other procedural institutions. From the perspective of the new criminal procedure code, the avatars of this extremely important procedural institution for the criminal prosecution phase are tracked and analyzed comparatively.
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In the following study the author reviews the decision making in the European Union (including the European Atomic Energy Community) as governed by the Treaty on European Union and the Treaty on the Functioning of the European Union subsequent to the entry into force of the Lisbon Treaty (which occurred on December 1st, 2009), compared with previous regulations, the exposure being focused on the innovations brought by the latter Treaty, in relation to previous establishments.
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In the research hereby, the author considers that in determining the amount of pension for retired judges between July 3rd, 2010 and December 31st, 2010, one should consider compensation in the amount admitted for the magistrate (judge or prosecutor) by Framework Law no. 330/2009, and not the one diminished by 25% (according to Law no. 118/2010 on certain measures requisite to restore budgetary balance), as the latter had temporary character (July 3rd to December 31st, 2010) and by the aforementioned Law there was no readmission of the magistrate (as accomplished since January 1st, 2010, under the Framework Law no. 330/2009).
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Over time, the abuse of right has been interpreted in various ways: while the advocates of absolute rights have interpreted it literally, namely as the almightiness of individual rights, the advocates of relative rights claim that the rights of one person end where the rights of another person start, so that the person excessively using its own right commits an abuse of right. As regards the explanation of its punishment, the classical theory assimilates it to tort liability, based on the moral censorship of conduct. Meanwhile, more and more of its hypotheses have become detached from fault. The new Romanian Civil Code accepts these trends partially, still remaining the prisoner of fault, as a basis for civil liability. The above-mentioned study intends to examine in a critical manner the legal solutions provided by the new regulation, trying to explain the punishment of the abuse of right on other ideas than the requirement to punish the guilty conduct of the holder. -
The analysis of the offenses against safety on public roads refers hereinafter to four other offenses (leaving the scene of an accident or changing or erasing evidence of the accident; preventing or hindering traffic on public roads; failure to comply with the tasks regarding the technical inspection or the performance of repairs and the performance of unauthorized works in the public road area), continuing our approach to present to the reader our personal option regarding this set of offenses, presently provided for in an emergency ordinance. Key words: vehicle, car, leaving the scene of an accident, changing the scene of an accident, erasing evidence of the accident, carrying out unauthorized works on the public road, preventing traffic, hindering traffic, poor performance of the technical inspection for vehicles and cars.
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The brief presentation of the appearance and evolution of the case of annulment provided under point 171 of art. 3859 parag. 1 of the Criminal Procedure Code in force, which mentions that the judgments under appeal are subject to annulment, “when the judgment is contrary to the law or when an erroneous application of the law was made by the judgment”, of the issues of unconstitutionality, of the provisions of art. 13 of the Convention for the protection of human rights and fundamental freedoms, of the practice of the European Court of Human Rights represent the arguments of the article for the need and justification of introducing the case of annulment provided under art. 3859 parag. 1 point 172 of the Criminal Procedure Code by the Law on certain measures to accelerate the settlement of trials, which guarantees that jurisdictions can effectively control the legality of the judgment, both in relation to the substantive rules and to the procedure rules, being vested with the prerogative of the possibility to annul the judgment subject to appeal.
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Starting from the legal rule of the non-retroactivity of law (initially included only in art. 1 of the Romanian Civil Code of 1864, still in force, and, afterwards, in art. 15, parag. 2 of the current Constitution of Romania – of 1991), the author makes an analysis of the theory of the non-retroactivity of law (according to the Romanian judicial doctrine), and then he examines the rules of the new Romanian Civil Code (published in 2009, but not yet in force), as well as the Draft Law for implementing the new Romanian Civil Code) which, by regulating various legal situations representing a conflict of laws in time, applies the principle of non-retroactivity of the civil law.
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Although the administrator of the association of owners or tenants can also commit the offense of embezzlement by the acquisition of surpluses created in his/her management by fraudulent means, he/she can be sued only for embezzlement and not for having committed the offense of creating surpluses in management as well. This study analyses whether the administrator has the capacity of manager according to the provisions of art. 1, parag. (1) of Law no. 22/1969 and presents the reasons why the administrator cannot be an active subject of the offense of creating surpluses in management by fraudulent means, although he/she is an employee, due to the fact that he/she is employed with an individual employment contract and has as main work tasks the management of the property and values of the association of owners or tenants.
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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.
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1. Principiul nullum crimen, nulla poena sine lege. Reguli generale. Drepturile fundamentale fac parte integrantã din principiile generale de drept a cãror respectare este asiguratã de cãtre instanțele europene în cauzele de concurențã, ținând cont în special de Convenția (europeanã) pentru apãrarea drepturilor omului și a libertãților fundamentale (în continuare denumitã Convenția) ca sursã de inspirație.
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In this study, the author proves that the owners’ association does not have the legal capacity to acquire land intended to be used by the association members as parking lots or for ensuring access to the building where the individual dwellings of the members are situated. In this respect, it is claimed that the legal documents for the acquisition of such land by the association are subject to absolute nullity, since they infringe the principle of specialty of the legal entity’s usage capacity, established by art. 34, parag. 1 of Decree no. 31/1954 regarding individuals and legal entities. Consequently, it is concluded that the use of land having the above-mentioned destinations may be acquired by the owners in a condominium only by legal documents concluded in their own names.
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Starting from the Decision no. 1.105/2010 on the exception of unconstitutionality of the provisions of the Government Emergency Ordinance no. 63/2010 for the amendment and supplementing of Law no. 373/2006 regarding the local public finances, as well as for establishing some financial measures, by which the Constitutional Court ruled that the subsequent effective dates of certain provisions of the emergency ordinance do not invalidate the urgent and extraordinary nature of the situation being regulated, the study examines the matter of the coming into force of emergency ordinances, in the light of the constitutional provisions and the provisions of Law no. 24/2000 regarding the norms of legislative technique for drafting regulations (republished). The study also presents a situation regarding the effective date of the Government Emergency Ordinances, starting with the year 2004 (subsequent to the revision of the Constitution).
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SECȚIILE UNITE, deliberând asupra recursului în interesul legii, constatã urmãtoarele: În practica instanțelor judecãtorești s-a constatat cã nu existã un punct de vedere unitar în aplicarea dispozițiilor art. 105, cu referire la art. 10 din Legea nr. 46/2008 privind fondul forestier proprietate privatã a persoanelor fizice sau juridice.
