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“Vague” legal concepts are inevitable, these proving their usefulness not only for covering some varied and virtually unlimited legal situations, impossible to imagine by the legislator, but also for ensuring the transition from the “the written law” to the experienced law” – given the evolution of the regulatory legal system background, while stimulating the updating of the written one. Conventional rules, primary and secondary, excel through the use of such concepts, called “autonomous”, but these are not foreign to any constitutional standards either, although one could say that, by definition, these must single out by the rigor and perfect predictability. Therefore, recognizing their indispensability and usefulness, we shall bring into focus some of the peculiarities of the review in terms of the way of interpretation and implementation of such concepts. -
The study deals with the analysis of innovative legal solutions related to the divorce proceedings covered by Law No. 134/2010 on the Code of Civil Procedure. Thus, it was envisaged the establishment of territorial jurisdiction of the Court in relation to the residence of the spouses or of one of them, filing of the action for divorce by the husband who, legally incapacitated, has discernment and the prosecution of the action for divorce by the plaintiff husband’s heirs deceased during the trial.
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The author, comparatively examining the provisions set forth under Articles 1402-1404 of the former Civil Code (1864), Article 45 of the former Commercial Code (from 1887), both currently repealed, with those set forth under Article 124 of Law No. 71/2011 relating to the implementation of the new Civil Code, concludes that, despite an explicit intervention, under the rule of the new Civil Code (Law No. 287/2009) disputed revocation is forbidden at present for all contentious rights, irrespective of their nature. Currently, disputed revocation is allowed only for assignment of rights concluded prior to October 1st, 2011 (when the new Civil Code was enacted) -
The paper proposes to examine, based upon a comparison, the system of the appeal for annulment and of the motion for revision, according to the new Code of Civil Procedure and to the prior regulation, in the light of the principle of the right to a fair trial in due and foreseeable time. Considering the nature of the appeal for annulment and the motion for revision of the extraordinary remedies, also the principle of the legal relationships security is emphasized, which requires that the final and irrevocable court orders could not be put up for discussion, except in the presence of certain “fundamental flaws”, set forth by law expressly and in a restrictive manner. The paper describes the amendments and the supplements brought by the new Code of Civil Procedure and in so far as they meet the needs of the issues which received several interpretations in the practice under the regulation of the Code of Civil Procedure of the year 1865, such as the period for the exercise of the appeal for annulment or, on the contrary, they may generate a non-unitary practice, such as the obligation to assist/represent by a lawyer in the matter of the means of appeal related to the withdrawal. -
Prin decizia Curții Constituționale nr. 190/2008, publicatã în „Monitorul oficial al României”, partea I, nr. 213/2008, dispozițiile art. 362 alin. (1) lit. a) teza a II-a C.pr.pen. – potrivit cãrora „apelul procurorului în ce privește latura civilã este inadmisibil în lipsa apelului formulat de partea civilã, cu excepția cazurilor în care acțiunea civilã se exercitã din oficiu” – au fost declarate constituționale. În consecințã, apelul declarat numai de procuror cu privire la latura civilã este admisibil, inclusiv în cazul în care motivele de apel referitoare la latura civilã au fost formulate oral în ziua judecãții, potrivit dispozițiilor art. 374 C.pr.pen. (Înalta Curte de Casație și Justiție, Secția penalã, decizia nr. 2755 din 11 septembrie 2012). -
The central part of this study is dedicated to the comparative review of the provisions in Title I (“The Criminal Law and the limits of its scope”) of the Criminal Code in 2009 as compared with the provisions of Title I (“The Criminal Law and its scope limitations”) of the Criminal Code in 1969, the author highlighting both the merits and the shortfalls of the new Criminal Code, explanations accompanied by numerous examples, own ideas and suggestions to improve the texts under review. These explanations are accompanied by a thorough analysis of the provisions relating to the implementation in time of the criminal law, referred to in Title I of Law No. 187/2012 for implementing Law No. 289/2009 on the Criminal Code. In a final section, the author puts forth his own findings learned in connection with the matter investigated to which are added, in a synthetic form, the main proposals de lege ferenda aiming to improve the new criminal legislation.
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The author of this study proposes a theme as original as it is actual: the environmental criminology. This subject – as the author points out – is still at the stage of structuring the object and searching its own path of asserting. Included in the specialization trend at the criminology scientific-academic, strategic and intervention level, it is considered a “special criminology” alongside with the social, demographic, cross-cultural criminology, and other types of criminology whose object of study and research are the relationships between the environmental conditions and antisocial behavior in general, and the criminal offense in particular. Both the approach of schools (e.g., the Chicago School) and currents underpinning the creation of environmental criminology from a diachronic perspective of the subject, and the approach of the differences between the concept of environmental criminology and other related concepts raise reader’s interest. -
Over the past two years, following the amendment of the Labor Code by Law no. 40/2011, the passing of Law no. 62/2011 on social dialogue, as well as the New Civil Code of Procedure (Law no. 134/2010, which entered into force on February 15, 2013), successively amended (before its entry into force) significantly by Law no. 76/2012 for the implementation of the new Code of Civil Procedure (Law which, in turn, was amended by the Government Emergency Ordinances no. 44/2012 and no. 4/2013, and by Law no. 2/2013) and, finally, through the amendments brought by Law no. 192/2006 on mediation and organizing the mediation profession through the Government Emergency Ordinance no. 90/ 2012, and by Law no. 115/2012, (relatively large) changes in the settlement of labor disputes and labor jurisdiction matters have occurred. In this study, the authors examine the impact of such changes in the said areas.
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The legislator regulates the “Summoning and service of the procedural documents” in Articles 153-173 of Title IV of IInd Book of the Code of Civil Procedure, texts which largely take over the provisions of the 1865 Code concerning this procedure and, at the same time, establish some new solutions aimed at streamlining the procedure at issue and to adapt it to the new realities. In this study, the foregoing are examined in detail.
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Currently, the law governing the criminal clause institution are laid down in Articles 1538 to 1543 of the new Civil Code. What holds the special interest of the legal literature, and, in particular, that of practitioners, is the court’s possibility to reduce the criminal clause where the principal obligation has been executed by the debtor (creditor’s advantage) and where the penalty is clearly excessive in relation to the damage that could have been set out by the parties upon the contract conclusion. This study presents the legal, doctrinal and jurisprudential evolution of criminal clause reducibility. -
The new Civil Code achieves in art. 1730-1740 a general-rule regulation of both legal and conventional preemption right, regulation applicable wherever the law or the contract do not stipulate otherwise. The conventional preemption right is recognized and regulated under the name of preemption right established by contract; it is nothing but a preference pact in the matter of the sales Contract. Considering that, regardless of the legal or conventional nature of the preemption right, is not normal to have two different systems that penalize violations in the beneficiary’s purchasing priority, the mechanism operating in case of preemption was governed unitary, the freedom of contract left to preemption’s promisor and this freedom overcome consequences being outlined. Whilst trying to settle the doctrinal controversy on the legal characteristics of the right of preemption, the new Civil Code provided for in Art. 1731 that the sale of the property on which there is a legal or conventional preemption right can be concluded with a third party only provided that there is a condition precedent of the preemptor non-exercising the right of preemption, but without specifying explicitly whether such a condition should be considered implicit where it has not been stipulated in the sales contract with the third party. Removing the jurisprudential shortcomings of the substitution mechanism related to the beneficiary instead of the third party purchaser, who is incompatible with the dissolution contract signed between the latter and the promisor, Art. 1732 and 1723 of the new Civil Code, without expressly referring to the sale under condition precedent, stipulate that, through the exercise of preemption, the sales contract is deemed concluded between the preemptor and the seller in the conditions contained in the contract with the third party, and this latter contracts shall be canceled retroactively. In terms of obligations, the creditor is entitled to proper execution and should the creditor have such right, he/she should be granted the opportunity to find effective means to protect it. Reading of Art. 1731 of the new Civil Code, in the sense of making the condition precedent of the preemptor’s non-exercise of the right of preemption in the any sale between the promisor and the third party to be implied, corresponds to the doctrine and jurisprudence attempts to find appropriate means to ensure the observance of the preemptor’s ignored rights, while considering the above principle.
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The study of the contract of audiovisual adaptation has been imposed for multiple reasons. Firstly, as no contract of transfer agreement of the author’s patrimonial rights, which includes also the contract of audiovisual adaptation, does not have its own regulation in the Civil Code (Law no. 287/2009). Consequently, the current article deals also with the problem of the incidence of the norms of common law on the analyzed contract. Secondly, the research was also determined by the fact that in the Law no. 8/1996 regarding the author’s rights and the associated rights this type of contract was allocated a laconic regulation, i.e. only in a single article of law. Thirdly, the discussion of this topic was necessary as the norms dedicated to the contract of audiovisual adaptation included in the special Law are not clearly, fluently and comprehensively enough formulated, presenting quite a few faults lacunae and even imprecision, which the author highlighted, sometimes under the form of de lege ferenda proposals.
