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The object of the general part of criminal law and its relation to the special part are still uncertain, and this is because the criminal doctrine has always neglected the general criminal norms, by focusing its attention on the norms of incrimination, which are specific to the special part. In relation to these matters, the doctrine often makes contradictory statements and, as a result, some authors have deducted that the connection between the general part and the special part of criminal law is that of a general law (common law) and a special law (exceptional law), so that a possible conflict between a general criminal norm and a special criminal norm is solved according to the rule specialia generalibus derogant. And, unfortunately, such an opinion tends to become dominant, as evidenced by the fact that the criminal legislator disregards more and more frequently the norms with value of principles of branch, which are included in the general part of the Criminal Code. Therefore, in order to combat this completely unacceptable legislative practice, the author of this paper has intended to point out that the general part is a framework-law, with a higher legal value, while the special part is a (derived) subordinate law, which can only specify (clarify) the norms of the general part, but can never derogate from them. However, starting from this premise, the author has noticed that the persisting doubt about the relation between the two parties also has a deeper cause, which resides in the fact that no modern legislator has been preoccupied with determining and explicitly providing the general conditions and rules of punishment. Although the criminal doctrine has, for a long time, noticed that the norms of incrimination lay down special rules of punishment, the scope of which is limited to a specific, well-determined offence, however, in the absence of general rules of punishment, it has concluded wrongly, that the incrimination norms are autonomous independent norms, while general criminal norms are derived (secondary) norms. -
According to the provisions of Article 260 paragraph 2 of the Criminal Code of 1968 [Article 273 (3) of the Criminal Code], both the „active” false testimony (the situation in which the witness gives false statements) and the „passive” false testimony (in which case the witness does not say everything he knows about essential circumstances he was asked) may be withdrawn, with the mention that, in the latter case, the witness must provide full and real details, which he perceived directly, which were essential and of which he was asked. In order to constitute a cause of non-punishment, the withdrawal of the false testimony must be carried out in the case in which it was given, and not in the case in which the criminal prosecution is conducted or in which the offence of false testimony is examined.
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The article deals with the legal regime of the convict’s money, their sources of origin and the destinations for their use during detention, in the Romanian criminal law and jurisprudence, bringing to light some proposals aimed at improving the situation of some categories of detainees in a state of economic precariousness. The objectives of the article are to determine the content of the notion of convict’s money in the current Romanian legislation, their sources of origin and the destinations for their use during detention, as well as to determine whether the current Romanian legislation complies with the requirements of the international instruments and whether the chosen legislative solutions are similar to those in other European states. The results show that the notion of prisoner’s money should include the money due to the convicted for the work done in prison, the sums received from natural or legal persons during detention and the amounts found upon them at the arrival in the penitentiary. It can be concluded that the amounts of money shown in the nominal account can be used for extinguishing the civil obligations established by the criminal conviction decision, without violating the rights of the detainees to receive, buy and possess goods, the right to telephone conversations, the right to petition and correspondence, the right to food, personal hygiene, the right to photocopy documents from the individual file and the right to medical treatment. The results also show that the present Romanian legislation regarding prisoner’s money complies with the international rules, such as the „Nelson Mandela Rules”, the U.N. Convention against torture adopted in 1984, ECHR/the Convention or the European Penitentiary Rules REC (2006)2, and it is similar to the legislation of other European states, such as France, Italy, Spain, Portugal, Germany or Austria, regarding the sources from which this money may be legally obtained, and the destinations for which this money may be used. In the case of those detainees who do not obtain income from work, it may be beneficial for a regulation to provide, within a reasonable limit, an exemption from the attachment of their money. For all inmates who do not have income, provisions should be made for the prison administration to bear, within a reasonable degree, the cost of national telephone calls made by convicts in order to keep in touch with their family. The implications are to clarify the issues discussed, facilitating a unitary practice, supported by solutions in the jurisprudence.
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The regulation of the profession of physiotherapist was made in Romania by the Law No 229/2016, which also established the College of Physiotherapists from Romania, as a professional organization, of public interest, having as object of activity the authorization, control and supervision of the exercise of profession of physiotherapist. In this article there are presented aspects regarding the outlining of the notions of physiotherapist/kinetotherapist, regarding the content and organization of the profession of physiotherapist by the new regulations, as a liberal profession of authorized public practice. In the present study it is analyzed the context in which it was adopted the Law No 229/2016, at a time when the status of the profession of physiotherapist was not regulated, at a time when the County Public Health Directorates issued authorizations for free practice which authorized persons licensed in other fields (physical training and sports), there are emphasized the current conditions for issuing the free practice authorization for physiotherapists. The study presents aspects regarding the recognition of the diplomas and qualifications at European level and the mobility of the profession of physiotherapist, as well as aspects related to the introduction of a European professional card and to the possibility of issuing the certificate of conformity. There are presented aspects concerning the compensatory measures designed to eliminate the important differences in programs specific to physiotherapy. In his activity, the physiotherapist must comply with the Code of Ethics of the Physiotherapist and the Status of the College of Physiotherapists from Romania. Elements of novelty regarding the malpractice in physiotherapy are presented, with connections to the experience gained in the sphere of medical malpractice, including with references to the subjective foundation of the civil liability of the medical staff.
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In this article, the author analyzes the legal nature of the Constitutional Court, a political jurisdictional authority of jurisdiction, whose role consists mainly in controlling the constitutionality of laws and of other acts adopted by the Romanian Parliament and by the Government. The Constituent Assembly of 1991 opted for the institutionalization of the European model of constitutional jurisdiction, according to which a body independent in relation to the powers of the State assumes the role of guarantor of the supremacy of the Constitution. The constituent legislators have preferred to abandon the control of the constitutionality of laws enforced by the supreme court, which was established by the Fundamental Law of 1923. In the constitutional architecture of the Romanian State, designed after the change of the political regime at the end of 1989, the Constitutional Court is a political-jurisdictional body whose legal nature derives from the way in which it is organized and structured, as well as from the attributions conferred to it by the Constitution. At the same time, the Constitutional Court also appears as a regulating body of the public authorities with governing powers in the state, which it obliges, through its decisions, to return to the constitutional legality. The author highlights both the political and the judicial nature of the Constitutional Court and shows that there must be a balance between the two essential characteristics of this public authority, in order for it to fulfil its constitutional role in a complete independence and impartiality and not to transform itself into a political tool for solving the relations between powers, especially between the legislative power and the executive power, which should benefit to one or another of the political actors.
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In the present study we have proceeded to analyze the text of Article 318 of the Criminal Procedure Code, in the light of the judicial practice in the matter. We also insisted on presenting some malfunctions in the application of the provisions of Article 318 (16) the 2nd sentence of the Criminal Procedure Code, provisions which in their essence prohibit the case prosecutor to adopt a solution to abandon criminal prosecution in the event that this solution was initially rejected by the preliminary chamber judge. The provision in question is all the more controversial as it is mentioned even therein this prohibition irrespective of the reason invoked, which leads to the conclusion that the solution to abandon criminal prosecution can no longer be ordered by the prosecutor, even if the evidence administered show that its adoption is required. In this context, the provisions criticized seem to be unconstitutional, because by applying them, the prosecutor is obliged by the legislator to violate several provisions of the Constitution, among which there is the principle of legality.
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This paper has as objectives the analysis of the possibility to raise requests and exceptions in the procedure of confirmation of the solution to abandon the criminal prosecution, in relation to the exigences given by the right to a fair trial to which the suspect or defendant should be entitled. The study relates to the functional competence of the preliminary chamber judge and has as purpose to express the considerations for which the same procedure should be applied also in the processual course of the confirmation of the solution to abandon criminal prosecution. From this perspective, we will also analyze the competence to verify the legality of the administration of evidence by the criminal prosecution bodies in the light of its significances. At the same time, we will find out if the Decision of the Constitutional Court No 802/2017, by which the constitutional contentious court has enshrined the principle of the freedom of evidence in the preliminary chamber phase, should be applied also in the procedure of confirmation of the solution to abandon the criminal prosecution, before the preliminary chamber judge, in order to allow that it should be administered any means of evidence referring to the legality and loyalty of conducting criminal prosecution acts and the administration of evidence.
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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.
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The Court of Justice unitarily interprets the law of the European Union by way of the preliminary reference procedure. Social networks make available to every person possibilities of individual communication or in communities. The meeting between the Court of Justice and the social networks is not new, but now the European Court has consolidated the interpretation of the notion of controller within the regulations on personal data protection. The administrator of a page hosted by a social network is a controller within the meaning of European legislation. The study attempts to correlate the main attributes of the controller with the functions of the administrator of a page hosted by a social network and to deepen the liability of this administrator.
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For the Romanian legal system, the case law does not have the quality of formal source of law. Nevertheless, the legal reality, also seen from a historical perspective, has demonstrated the essential role of the judicial practice in interpreting and enforcing the law, in constructing the argumentative practices, in clarifying the will of the legislator, and in discovering less obvious meanings of the legal norms, and last but not least to the unification of legal thinking and practice. Therefore the case law, together with the doctrine, is an important component of the Romanian legal system. Staring from these considerations, in this study we aim to emphasize a few aspects of constitutional case law. We are underlining its contribution to the emergence of the constitutionality control of laws in Romania. Under the influence of the Constitution of 1866, which did not regulate such a control in an institutional manner, the courts have assumed this competence by interpreting the law and by jurisprudential way. There are also presented and analyzed important contributions of the case law of the Constitutional Court, but also of the judiciary courts to the development of constitutionality control in our country. We support the idea that the case law currently plays an important role in the interpretation of the constitutional norms, including in terms of deepening the forms of constitutional control.
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In this study, the author presents, from the point of view of the constitutional law, the complex process of re-emergence of the state formations after the break-up of the Roman imperial administration at the end of the 5th century. The collapse of the boundaries of the West Roman Empire and the penetration of the conquering migratory populations to its centre have generated not only the destruction of the military capacity of the empire and its army, but also of the political institutions and of the entire Roman administration. Practically, the Roman state has entered an advanced dissolution process that has led also to the replacement of the old production relations with new relations. Instead of the Roman administration, rudimentarily organized patriarchal formations which responded to the new military conditions imposed on the indigenous population by the conquering populations appeared. At the same time with these, in the former Roman provinces, the Christian churches continued to carry on a social organization activity. Practically, the Christian Church took over some social organization and management functions, specific in the past to the Roman administration. The gradual conversion of the conquering populations to Christianity has stimulated the process of restating and the emergence of the first barbarian kingdoms. The Church had thus an overwhelming role and hastened the re-emergence of the statehood on the former territories of the vast Roman Empire. Finally, new states have emerged on the European continent, with well defined ethnic physiognomies and endowed with a political administration based on constitutional principles that have proven their validity in the subsequent centuries. At the same time with the formation of the new states, a new theory of the political institutions has been forged and gradually developed, in which, along with the elements of laic thinking, many precepts of Christian religion can be emphasized.
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The registers of the professionals are the main tool for knowledge, recording and control of their activity. Along with these functions, the registers of the professionals also have a probative function, the legislator including them in the category of documents under private signature, although they do not constitute a proper written evidence, but an improper one. The entries made in the registers are not made for the purpose of constituting an evidence, but of keeping the records, as established by law. But, through these entries, the professional practically recognizes the attested circumstances, the operations performed. The legal regime of registers of the professionals derogates from the principle of nemo sibi titulum constituere potest, a derogation which is explained by the nature and functions of the registers of the professionals, as well as by the conditions established by the law for keeping them. The Civil Procedure Code lays down the general rules referring to the probative force of the registers of the professionals (therefore, of the registers of all professionals, and not only of the traders’ registers), distinguishing, from a probative point of view, between the registers drawn up and kept in compliance with legal provisions and the registers kept in non-compliance with the legal provisions. The provisions of Article 280 of the Civil Procedure Code (called „Registers of the professionals”) are applicable only to registers, and not to other categories of documents, such as invoices, telegrams, faxes, receipts, etc., from professionals. The registers of the professionals can not bring evidence against the foreigners concerning the relationship among professionals, even if they are regularly kept. The delimitation of the legal relations between professionals from other civil legal relations is based on the concepts of professional and enterprise, concepts whose meanings are specified in Article 3 of the Civil Code, and Article 8 (1) of the Law No 71/2011 for the implementation of the Civil Code includes in the notion of „professional” the categories of „trader, entrepreneur, economic operator, as well as any other persons authorized to carry out economic or professional activities”. The records of the professionals kept in compliance with the legal provisions can give full evidence in court, both to the contrary and in favour of those who keep them, provided that the dispute is between professionals and concerns operations or legal acts which constitute facts and matters related to their professional activity. The registers of professionals, unlawfully kept, can not represent evidence in court in favour of those who have kept them. These registers provide evidence against the professional who kept them, but the part that prevails on them can not divide their content. The evidence resulted from the registers of the professionals is left by the legislator at the sovereign appreciation of the court, whether or not they are legally kept. The court can base its own solution even on other evidence. But, it must motivate the admission or removal of the registers as means of evidence. The registers of professionals may be presented in the trial by appearance or, as the case may be, by communication, or may be investigated by rogatory commission, provided that the documents or registers are in another court jurisdiction.
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In the absence of an express legal obligation that obliges the data controller to prevent conflicts of interests in its organization, there were often raised in the judicial practice problems related to the existence of a legitimate purpose of data controllers in Romania to process the personal data of the candidates within a process of recruiting the future employees, respectively their family members, affiliates or even close persons, namely of the actual possibility to comply the data controller’s obligation to inform the data subject, being whether a candidate or a person close to them. The same problems arise also in case a potential or actual conflict of interests occurs during the execution of an individual employment contract, thus while the data subject is employed by the data controller. This study therefore seeks to expose the main issues related to the fulfilment of the legal requirements applicable to personal data processing operations performed for the purpose of managing conflicts of interests both in the public sector and in the private sector, aiming at ascertaining the existence of a legitimate purpose, of the legal basis applicable to such a process in accordance with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation), but also the rights of the data subject, respectively the data controller’s obligations
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În acest număr al revistei publicăm două interesante studii semnate de eruditul dascăl de drept civil Dimitrie Alexandresco în publicația „Curierul judiciar” din 28 mai 1900 și, respectiv, de profesorul Vintilă Dongoroz, în aceeași revistă, nr. 11/1942. În primul articol, profesorul Dimitrie Alexandresco abordează o temă de drept internațional privat, și anume efectele gestiunii de afaceri în situația în care aceasta este încheiată pentru a-și produce efectele într-o altă țară decât cea de care aparțin părțile. Profesorul Alexandresco răspunde la întrebarea: „Care este legea după care se vor aprecia condițiile intrinseci de validitate și efectele acestui cvasi-contract?”. În al doilea articol, profesorul Vintilă Dongoroz prezintă o problemă de drept procesual penal referitoare la cererea de strămutare pentru legitimă suspiciune a unei cauze penale aflate în faza de cercetare la judecătorul de instrucție. -
Prin Sentința penală nr. 1 din 11 ianuarie 2016 a Judecătoriei Motru s-a hotărât, printre altele, schimbarea încadrării juridice a faptei pentru care inculpatul M.S. a fost trimis în judecată din fapta prevăzută de art. 42 alin. (1) lit. c) din Legea nr. 407/2006 în fapta prevăzută de art. 42 alin. (2) lit. c) din Legea nr. 407/2006 și fapta prevăzută de art. 342 alin. (1) C.pen., totul cu aplicarea art. 38 alin. (1) C.pen., în fapta prevăzută de art. 42 alin. (1) lit. c) – art. 42 alin. (2) lit. c) din Legea nr. 407/2006 și fapta prevăzută de art. 342 alin. (1) C.pen., cu aplicarea art. 38 alin. (1) C.pen., texte de lege în baza cărora inculpatul a fost condamnat. Ca stare de fapt s-a reținut că inculpatul, în noaptea zilei de 4/5 aprilie 2015, a efectuat acte de braconaj cinegetic pe raza fondului de vânătoare cu nr. 27 M, punctul „M.”, aparținând AVPS E, ce a avut ca finalitate uciderea prin împușcare a doi căpriori, cauzând un prejudiciu în valoare de 10.000 euro, fără a fi înscris în autorizația de vânătoare individuală sau colectivă eliberată în condițiile legii de gestionar, pentru fondul cinegetic respectiv. Dincolo de motivarea sibilinică a instanței în ceea ce privește schimbarea încadrării juridice a faptelor, sentința penală citată aduce în discuție aspecte ce țin de aplicarea cadrului legal în materie, dată fiind claritatea precară a actului normativ care reglementează infracțiunea de braconaj.
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Continuous development of types of non-custodial sanctions as ways of combating crime, reducing the damage caused by it, avoiding the negative effects of deprivation of liberty, increasing the possibilities of executing these alternatives to the imprisonment and, last but not least, by reducing of detention costs have guided European Union Member States to create and introduce the most appropriate Community sanctions and measures to respond to these desires. The successful introduction of alternatives requires credibility, support of the public who must abandon the prejudice that a more relaxed criminal policy with less severe punishments encourages criminality, or that public humiliation or intrusive tracking of the persons undergoing penalties is permissible, and even necessary, to highlight the status by the offender. Equally, the successful introduction of alternatives1 depends on the judiciary that can not hesitate to make them available on a large scale whether is possible, but also on the involvement of many agencies (probation service, the bodies of the Ministry of the Interior, local authorities, etc.) to implement non-custodial sanctions.
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The provisions written down in the Peace Treaties of 1947 have decisively determined the international political alignment of the five former enemy states. Regardless of the divergences and contradictions occurred within the Great Alliance during the war, the post-war political situation of the defeated would have been different if the clauses of this international juridical act were drafted in accordance with the norms and customs of international law. The situation of fact became fully legitimate in the Peace Treaties elaborated by the winners and accepted by the defeated in the conditions of the lack of some viable options in the realities of the moment. -
In this article, the author analyzes extensively the issue of the status of the judges of the Constitutional Court from Romania, as it was prefigured in the theses debated by the Constituent Assembly in 1991 and regulated in the provisions of the Constitution approved by the national referendum of 8 December 1991 and revised by the Law No 429/2003. The status of the constitutional judges is analyzed by reference to the role and attributions of the Constitutional Court. The status of the constitutional judges derives from the role of the Court as guarantor of the supremacy of the Fundamental Law. The constitutional provisions regarding the status of the constitutional judges are developed by the Law No 47/1992 on the organization and functioning of the Constitutional Court, as well as by other special laws. The judges enjoy independence and are obliged to impartially exercise their attributions. The constitutional provisions provide that the constitutional judges are incompatible with any other public or private office, except for higher legal education teaching activities, are independent in the exercise of their mandate and irremovable during their term of office. The Law No 47/1992 establishes that the judges are not legally responsible for the opinions and votes cast in connection with the cases pending before the Court. For any other deeds, the constitutional judges may be tried in criminal proceedings with the consent of the plenum of the Constitutional Court, under the conditions provided by the Law No 47/1992.
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Legal liability is a relation established by law, by legal rule, between the author of the infringement of legal rule and the state, represented by the officials of the authority, which may be the courts, public servants or other officials of the public power. The contents of this relation is complex, being composed essentially of the right of the state, as a representative of society, to apply the sanctions provided by the legal rules to the persons which are in breach of the legal provisions and the obligation of those persons to be subject to legal penalties, in order to restore the legal order.
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In the present study, the author gives us a general examination concerning the right to a fair trial and of the settlement of the case within an optimal and predictable time limit. The approach is carried out in accordance with the international and internal regulations, but also in consideration of the latest doctrinal and jurisprudential evolutions in the matter. The first part of the study is devoted to the fair trial, and the main ideas promoted in the context are related to the complex character of the subjective right proclaimed by Article 6 (1) of the European Convention on Human Rights. In the second part of the present approach there are presented the procedural meanings of the right to the settlement of the case in an optimal and predictable time limit. Likewise, some considerations have also been formulated on the legal contest concerning the delaying of the trial, a remedy deemed useful by the author, although the results involved by this institution can not be regarded as spectacular. The author also evokes the recent amendments to the new Civil Procedure Code, such as those concerning the suppression of the review filtering procedure and the possibility of extending the term for the motivation of the judgment no more than twice.
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În luna martie 2010 doamna A.C.L. a achiziționat un autoturism marca Mercedes Benz 350 SL, din sumele primite donație de la părinții ei. Începând cu luna iulie a anului 20101, impozitul2 pentru mijloacele de transport3 s-a majorat semnificativ, dublându-și valoarea pentru autoturismele cu capacitate cilindrică mai mare de 3001 cm³. Autoturismul în cauză având o capacitate cilindrică de 3724 cm³, valoarea anuală a impozitului depășea 5 500 lei. Cum acesta depășea posibilitățile financiare ale doamnei A.C.L., aceasta a hotărât să înstrăineze autovehiculul, postând anunțuri pe site-urile de vânzări, precum și pe geamul lateral al autoturismului. În pofida acestor demersuri, nu a reușit să vândă autovehiculul în România din cauza cuantumului ridicat al impozitului anual, acumulând în continuare datorii la bugetul local. În cursul anului 2012 doamna A.C.L. s-a deplasat în Germania și la data de 27 noiembrie 2012 a reușit să înstrăineze autovehiculul către o societate din acest stat, al cărei obiect de activitate era comerțul cu autovehicule. -
În articolul de față ne propunem să prezentăm câteva considerații critice asupra Deciziei nr. 685/2018 a Curții Constituționale pronunțate recent1. Trebuie să precizăm, în acest sens, că nu împărtășim soluția asupra admisibilității cererii de constatare a existenței unui conflict juridic de natură constituțională, dar suntem parțial de acord cu soluția pe fond și nu împărtășim unele considerații din motivarea instanței constituționale. În ceea ce privește admisibilitatea cererii primului-ministru, suntem de părere că nu ne aflăm în prezența unui conflict de natură constituțională, ci a unuia de natură legală. Așa cum Curtea însăși a definit conflictul juridic de natură constituțională în deciziile sale anterioare2 și cum o reamintește și în prezenta decizie, este necesar ca autoritatea „pârâtă” să-și aroge competențe care îi aparțin autorității „reclamante” sau alteia sau să refuze să-și exercite propriile atribuții, iar aceasta să ducă la blocaje instituționale3; în fine, în prezenta decizie apare pentru prima dată și cerința ca blocajul să nu poată fi înlăturat în alt mod4.
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The law provides that all declared claims will be subject to the verification procedure, with the exception of claims established by enforceable court judgments and enforceable arbitral awards, as well as budgetary claims resulting from an uncontested enforcement title within the time limits provided by special laws. In case the court judgments or arbitral awards are annulled, quashed or modified in the means of appeal, the judicial administrator/judicial liquidator will restore the table of claims accordingly. In case the court, by annulling or quashing the judgment, does not settle also the merits of the case, the judicial administrator or the judicial liquidator will proceed to the verification of that claim, by notifying the creditors in the event of total or partial non-inclusion of the claim, the creditors having, against the measure of the practitioner, in the Bulletin of Insolvency Procedures the extract of the report of the judicial administrator or of the judicial liquidator in which that measure is described. The judicial administrator will proceed immediately to the verification of each application and of accompanying documents and will conduct a thorough investigation to determine the legitimacy, the exact value and priority of each claim. For this purpose, the insolvent practitioner has the right to request explanations from the debtor, will be able to discuss with each debtor, requesting additional information and documents, if he considers it necessary. The regulation included in paragraph (2) of Article 106 of the Insolvency Code has an absolute novelty character, because until the appearance of the Law No 85/2014 the judicial administrator/judicial liquidator did not have the right to establish that the extinctive prescription of the claim has arisen. This is provided that, in the conception of the new Civil Code, the prescription can only be invoked by the one in whose favour it runs. Therefore, if the insolvent practitioner will appreciate that for the amount of money declared by a creditor within the procedure the extinctive prescription has arisen, he will notify the creditor in that regard, without further checks on the pretended claim, the legislator considering that in this case it acts, although it is a body applying the procedure, as a representative of the insolvent debtor, obviously with the possibility of the creditor interested in challenging the measure to the syndic-judge. As a result of the verifications made, the judicial administrator/liquidator will draw up and register with the court a preliminary table containing all claims against the debtor’s estate, overdue or not, under condition or under dispute, arisen before the date of the opening procedure. In the table there will be mentioned both the amount requested by the creditor and the amount accepted and the priority rank, and in the case of the creditor undergoing the insolvency procedure the appointed judicial administrator/judicial liquidator will also be indicated. In the case of the simplified procedure, in this table the claims arisen after the opening of the procedure and until the moment of going into bankruptcy will be recorded. In the case of claims which benefit from a preference cause, there will be presented the title from which the right of preference arises, its rank and, if applicable, the reasons for which the claims have been partially recorded in the table or have been removed. The claims that are benefiting from a preference case shall be entered in the preliminary table with the full value, indicating at the same time the title from which the preference right arises, their rank and, if applicable, the reasons for which the claims were only partially recorded in the table or have been removed, and in the final table, up to the market value of the guarantee determined by assessment, ordered by the judicial administrator or by the judicial liquidator, by an authorized assessor. However, Article 122 (1) of the Framework-Law makes the drawing up of the final table of claims conditional upon the handover by the assessor of the guarantee assessment report. In case the capitalization of the assets over which the preferential cause takes effect will be made at a price higher than the amount entered in the final consolidated table, the positive difference will be assigned to the guaranteed creditor, even if a part of his claim had been recorded as a secured debt, until covering the main claim and the accessories that will be calculated according to the documents from which the claim arises, until the date of the capitalization of assets. This provision will also be applied in case of failure of the reorganization plan and the sale of the asset in the insolvency procedure.
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The legislation on the matter of stamp duties, although it should be free of problems of interpretation, is no exception to the fact that the interpretation is the one that generates problems in the application of legal norms. The related controversies reveal that the current regulation inclusive is far from the desideratum to maintain a fair balance between the public interest to collect these budgetary resources in the quantum envisaged by the legislator and the interest of the litigant not to have the relevant legislation interpreted to his detriment. There are difficulties concerning the determination in practice of the actions which the legislator regulates generically by formulating „cash assessable actions and claims”, a phrase used in Article 3 (1) of the Government Emergency Ordinance No 80/2013. The same situation we encounter in the case of applications determined by the phrase „applications not assessable in cash”, phrase used in Article 27 of the Government Emergency Ordinance No 80/2013, with which the legislator intends to cover all the categories of applications not regulated in the previous texts. Other difficulties, revealed inclusively by the decisions of the High Court of Cassation and Justice, concern the interpretation of the phrase „different finality”, used in Article 34 (1) of the Government Emergency Ordinance No 80/2013, for the situation of the actions with multiple claims. Since these three phrases evoke genuine principles underlying the manner of regulation used by the legislator in the matter, by the controversies reviewed, the study argues either the necessity of the minimum approach of defining the terms contained therein by the author of the normative act, or that of rewriting it pursuant to an inventory of the objects of the claims encountered in the judicial practice. This inventory is easy to obtain by the legislator from the courts, with the necessity to update it, after taking over in the normative act of domain, either by the regulations that generate new categories of applications addressed to the justice, or by amending accordingly the normative act having as object exclusively the stamp duty fees. However, this regulatory manner is used by the legislator in the legislation by which it establishes tax obligations, duties and taxes respectively. It is easy to imagine the implications of some norms susceptible to interpretation in this latter matter, which, in essence, has the same nature as the one in question.
