-
The globalization phenomenon is inevitably leading to a development, without precedent, of the international trade, in general, and of the freight, a situation that emphasizes the current complex issue of defining the law applicable to the international contract of maritime freight, and also the enhancement of afforts for the elaboration of an uniform frame applicable to international trade contracts in general, by the specialized institutions – UNCITRAL, UNIDROIT, the Hague Conference on international private law; the existence of an uniform law proves to be the best solution in order to avoid difficult issues caused by the conflict of laws, process which is constantly developing without achieving the elaboration of an universal interstate convention, that could unify the conflict solutions applicable to all international trading contracts, and consequently, at least for the time being, the conflict of laws is not completely eliminated. From this perspective, the law applicable to the international charter party has been analyzed according to the European Committee Regulation no. 593/ 2008 of the Europea Parliament and Council regarding the law applicable on contractual obligations – Rome I, and according to the inter-American Convention on the law applicable on international contracts (CIDIP Convention). -
Commenting on a judgment pronounced by Craiova Court of Appeal, the author makes certain considerations related, on one hand, to the prosecutor’s right to declare the appeal regarding the civil side for lack of appeal of the civil party and, on the other hand, to the effects of the second appeal in the criminal proceedings.
-
In this study, the author carries out a detailed analysis of the content of the offence regulated by art. 2803 of Law no. 31/1990 on companies, as republished, subsequently amended and supplemented, criticizing a series of opinions expressed in the specialty literature regarding the constituent elements of this offence. In the last part of the publication, the author raises the question of autonomy of the examined offence as compared to the offence regulated under art. 291 of the Criminal Code (art. 323 of the new Criminal Code), proposing certain criteria for the classification of these two offences.
-
In this study, the author analyses the offence of disturbance of possession both from the diachronic perspective and in the light of the applicable, but also future criminal laws. From the historical perspective, the author states that the amendments that the new Criminal Code brings in relation to the abovementioned offence cause the regulation to be similar to the provisions of art. 556558 of the Criminal Code „Carol II who punished the committed offence by moving the boundary limits, by threat and violence and of art.220 of the Criminal Code of 1968, in its original version, for the simple occupation without being entitled, the owner having the use of possession actions at his disposal.
-
Reality proved that the persons who commit manslaughters, usually are not deprived of their freedom, this hindering the post-delictum general prevention as regards the other car drivers who breach the traffic rules, and this situation requires a legal involvement to limit to courts the possibilities of legal individualization in ways of letting out the persons who, being culpable and disregarding the compulsory traffic rules on public roads, provoke the death of their fellows.
-
The rule included in art. 41 paragraph 3 of the Criminal Code adopted in 1968 defines the concept of complex offence in a way which does not exclude any critique. Among the numerous critiques submitted for this definition, the legislator of the new Criminal Code adopted by Law no. 286/2009 assumed a single critique regarding the inaccuracy of using the phrase „aggravating circumstance” that it replaced by the phrase „aggravating incidental element”. However, in the author’s opinion, the most important critique of the definition consists in the fact that concepts such as “action or inaction” are used in order to describe the absorbed offence, referring only to the objective side.
-
The study analyses the legal provisions regarding the capital market in terms of the relationship which has to exist between the relevant laws of the European Union, the Romanian law and the normative acts of the National Securities Commission, as an autonomous administrative authority. Certain legislative issues which occurred in the transposition of certain provisions of the European Directives into Romanian laws are identified. These issues generate effects breaching the constitutional principles and, consequently, affect the integrity of the Romanian law system regarding the capital market. The necessary solutions are proposed as well, in order to reestablish the balance between the above mentioned normative acts, as compared to their legal force.
-
Given the ambiguity of the legal texts in the Law concerning the public-private partnership addressing the financing of public-private partnership projects, this study endeavors to identify the various ways of using public funds in such projects. It forwards arguments for a restrictive interpretation of the concept of „financing” as used by such texts, proposed to be limited to the construction phase of the project, and also analyses the main legal structures having an impact on public funds, usually guarantees, by which the public partner may provide support to a public-private partnership project. Whilst pleading for the use of such direct of indirect public guarantees, the study emphasizes the need for their accurate identification, including their potential consequences on the public debt and deficit statistic treatment as well as on state aid.
-
Law no. 221/2009 regarding political convictions and their related administrative measures issued during the period 6 March 1945 – 22 December 1989 in art. 5 paragraph (1) letter a) sets forth the payment of non pecuniary damages for the above mentioned persons, damages which are owed by the State. Subsequently, according to the Government Emergency Ordinance no.62/2010, the content of art.5 paragraph (1) letter a) of Law no. 221/2009, was amended so that the above mentioned non pecuniary damages were limited to the maximum amount of Euro 10,000 for the convicted person, respectively Euro 5,000 or 2,000 for the spouse or for the Ist or IInd degree descendants. Pursuant to two decisions issued by the Constitutional Court in the year 2010, the content of art. 5 paragraph (1) letter a) of Law no. 221/2009 was declared to be unconstitutional by the Constitutional Court (both the original content, and the amended content, pursuant to 2 decisions of the Constitutional Court). Such being the case, the author considers that following the submission of these two decisions of the Constitutional Court, the entitled persons cannot be granted non pecuniary damages any more, this being also valid for the litigations pending (not being settled finally until the publication of those two above mentioned decisions.
-
According to the Labor Code (Law no. 53/2003, republished on the 18 of May 2011), the employer, under the pain of absolute nullity, cannot inflict any disciplinary sanction (except the written warning), without beforehand and compulsorily, performing a disciplinary investigation as well, by an individual authorized by the employer to this end. The minimum rules regarding the disciplinary procedure (namely, also those regarding the prior disciplinary investigation) are set forth in the Labor Code and are developed by the Internal Regulations of the unit. Such being the case, this kind of rules cannot be legally established in the collective employment agreement, no matter its level of negotiation (at the level of the unit, of the group of units or of the fields of activity), even if during the period 2007–2010 the national unique Collective Employment Agreement (terminated at present) regulated, against the law, a procedure regarding the (prior and compulsory) disciplinary investigation which included also provisions obviously contrary to the Labor Code.
-
Although it maintains the legal fusion system for sanctioning multiple offences, the new Criminal Code sets forth the obligation to apply a fixed increase to the hardest punishment, representing the third part of the total punishments inflicted for simultaneous offences. The author states that the provision of the amount of the increase of punishment in the content of the law does not allow the court to judge, as the case may be, depending on the number and on the grossness of the simultaneous offences and on the particulars of the defendant, the need and especially, the amount of the punishment increase. In order to avoid certain legal exaggerations which could result from the establishment and the application of the punishment increase, according to the new regulations for the observance of the principle of lawfulness of criminal sanctions and in order not to give the court the opportunity to apply the sentence of life imprisonment when it is not set forth for any simultaneous offence, the legal amendment of the provisions of art. 39 of the new Criminal Code, is required.
-
In this study the author carries out an analysis of the provisions mentioned in art. 898-902 of the new Civil Procedure Code (Law no. 134/2010, not yet in force) on the enforcement of court orders regarding the minor children, these regulations being derogatory from the common law of the enforcement, established for the first time in the Romanian laws, and consequently, without any correspondence in the Romanian civil procedure laws, still in force.
-
The letter of guarantee is regulated by the new Civil Code within the autonomous guarantees, together with the letter of comfort. It is an autonomous, unconditional and irrevocable legal deed. In the letter of guarantee, the issuer assumes its own obligation which in its relationship with the beneficiary at least, shall be main and autonomous – the payment of an amount of money upon the first simple request of the beneficiary, for the situation in which the result taken into account upon its assumption is not carried out. The execution of the letter of guarantee depends only on its own requirements and this is the criterion according to which it distinguishes basically from the deed of trust.
-
In the above study, the author, carrying out a critical analysis of articles 1216–1218 of the new Romanian Civil Code (Law no. 287/2009, which became effective on the 1st of October 2011), namely, regarding the contents regulating the violence (as a vice of consent) in this Code, considers that their wording is not adequate and that is why finally, the study, de lege ferenda proposes a new wording of the contents, such as formulated by the author.
-
Simpla cunoștințã a existenței și folosirii mãrcii anterior depozitului nu este suficientã pentru întrunirea condiției relei-credințe, fiind necesar ca acest fapt sã fie unul de naturã frauduloasã. Reaua-credințã implicã îndeplinirea cumulativã a douã cerințe distincte, vizând, pe de o parte, cunoașterea „faptului relevant” – existența și folosirea unei mãrci anterioare sau chiar a unui semn neînregistrat ca marcã – iar, pe de altã parte, intenția frauduloasã. -
În situația în care, pe perioada procesului de divorț între pãrinți, minora a fost încredințatã mamei prin hotãrâre judecãtoreascã, iar mama o influențeazã pe minorã sã refuze contactul cu tatãl ei și, în același timp, mama refuzã sã execute sentința judecãtoreascã prin care s-a stabilit programul de vizitare a minorei de cãtre tatã, instanța este în drept sã oblige pe ambii pãrinți sã se prezinte cu minora la centrul de consiliere (psihologicã) din cadrul direcției generale județene de asistențã socialã și protecția copilului (cu notã aprobativã).
-
Within the framework of study hereby, the institution of the Romanian President’s immunity under the Criminal Law is subject to review. Observing the constitutional legislator’s option, first there are set under review the material and temporal limits of the procedural immunity. In this context, there are put forth some novel problems such as summoning the President as a witness or the scope of immunity in the case of civil and tort liability. In relation to the substantive law immunity, it is reviewed the rationale of the institution, and then its substantive limits are detailed: the presidential powers are identified, i.e. there are brought to the attention some controversial assumptions such as granting and revoking the conditional pardon, or views expressed by the President in another frame than the official one.
-
The offence of incest, like other offences relating to sexual life, has generated debates in the specialty literature and doctrine, as well as different solutions in judicial practice. From the author’s viewpoint, although the High Court of Cassation and Justice envisaged, by Decision no. II/2005 to standardize courts’ practice, as regards the legal classification of the facts that, in relation to their material content, meet both the constituent elements of the offence of rape, as well as those of the offence of incest, the solution adopted is questionable, in its turn. The legislature, by the rules of incrimination of the offence of incest under the new Criminal Code, succeeds, at least in this respect, to settle the issue. However, there are some outstanding issues that this study seeks to put forward and clarify.
-
In the study above, the author puts forward a petition issued by the Anticorruption General Directorate (autonomous structure within the Public Ministry, coordinated by the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice), under which, in relation to a female judge whose spouse (judge) was criminally prosecuted by indictment drawn up by the National Anticorruption Directorate, it is requested to be removed, administratively, from the analysis of documents (indictments, etc.) issued by the National Anticorruption Directorate. As a result of resentments, being thus in the presence of a conflict between the family interests and the public interest for administering justice. The Superior Council of Magistracy could not adopt a decision on the relevant petition within the Court, getting to a tie vote (4 votes for, 4 votes against). The author hardly criticizes the petition submitted by the Anticorruption General Directorate, considering it as an administrative interference in the work of a judge.
-
Following the conclusion of the Arbitration Convention there are born a number of contractual relationships between all participants in such Convention, namely: the Arbitration Agreement (between litigants and arbitrators appointed by the same); the Arbitration Cooperation Agreement (in the case of Institutional Arbitration, between arbitrators and the permanent arbitration institution); the Agreement on the Organization of Arbitration (between the Parties and the Arbitration Institution). In the above study there are reviewed the legal issues of the three Agreements, subsequent to the conclusion of the Arbitration Convention mentioned above, namely: The Arbitrators’ Agreement, Drafting Arbitration Agreement and the Agreement on the Organization of Arbitration.
-
The study hereby was inspired by a recent Case where the European Court of Justice (ECJ) ruled upon a petition for a preliminary ruling covering the interpretation of the provisions of Council Directive 93/13/EEC of April 5th, 1993 on unfair terms in consumer contracts made under Article 234 EC (now Article 267 of the Treaty on the functioning of the European Union). Taking our stand upon the issues highlighted by the aforementioned case, namely the possibility of cancellation of an arbitration award by the Court of enforcement and implementation ex officio of the European Union Law by the national court, it should be laid down some clarifications relating, mainly, to the ECJ solution with reference to the principles of the European Union Law, as well as national issues regarding the subject of the enforcement act, the possibility to pursue an appeal against the arbitration award, the principle of availability governing the lawsuit, but also the res judicata of judgments. The authors critically analyze the judgment and bear in mind the relevant Romanian law (including the provisions of Law no. 134/2010 on the new Code of Civil Procedure), and the possible effects in national, arbitration or judicial jurisprudence.
-
Law no. 85/2006 on the insolvency procedure, under Article 138, ties to rules the cases and the conditions under which managerial or supervisory staff of the debtor (legal entity), facing insolvency, is to answer patrimonially for having caused the state of insolvency of the relevant debtor (legal entity). In practice, in relation to this wording, it was raised in case law the question whether those by right can make such a request (on grounds of Article 138), subsequent to the occurrence of closure of the insolvency proceedings (under Articles 131-137 of the same Law). The author argues – bringing arguments to that effect, that it is required a positive response.
-
Despite its frequent recall, in legislation, jurisprudence and doctrine, the concept of “public order” is not only a vague, poorly determined and content-variable one, but also among the most controversial ones. Hereinafter, the authors of this study are trying to submit to the attention some of its characteristic traits, and then to provide some guidelines with regard to the implementation ex officio of “reasons of public order” by the Court for judicial review in the lawsuit.
-
The author performs a detailed analysis of the characteristic traits of indictments under the new Criminal Code which are correlated with, related to or in interdependence relationship, as appropriate, with fraud, in view of similarities and disparities thereof, with frequent references to valid national legal practice and in relation to the new Criminal provisions. To that effect, there are dealt with, in particular in the light of their disparities, offences such as: fraud in the insurance field, encouragement of the perpetrator, concealment, omission of the referral, misleading the legal authorities, blackmail, theft, breach of trust, breach of trust by defrauding the creditors, unfair assistance and representation, influence peddling, issuance of counterfeit securities, forgery of foreign securities, counterfeiting of a technical record, perjury, false identity, but also the ones laid down in Article 84 of Law no. 59/1934 on cheques and in Article 271 points 1 and 2 of the Company’s Law no. 31/1990. Thereafter, in the case of the offences mentioned above, there are considered differentially, as appropriate, the subject of criminal care, the offence, the objective and the subjective side, forms, procedures and penalties provided for under the law. Also, the author does not hesitate to put forward his opinion on deciphering the legal wording of the offences under review or the sphere, in practical situations, of one or the other of the aforementioned rules of incrimination and to advance some of its own solutions and ideas.
