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Within this study the author makes a brief examination of the main amendments and supplements of the new Civil Procedure Code, operated during the period passed from its adoption up to the present. Some of the most significant normative amendments and supplements have been operated by the Law No 310/2018 and concern the matter of material competence of judges. The author considers that by these legislative interventions the legislator’s vision about the competence of the courts of first instance has been significantly amended, this being enlarged with cases of special importance, such as those in matters of inheritance and usucapion. In this way, the courts of first instance tend to become, to a certain extent, common law courts, and not courts for the small claims. A change of substance which has been emphasized in a special way is also the one that offers another perspective on the competence of the supreme court in the matter of review. Important evolutions have also been brought in the matter of incompatibility, of the regularisation procedure and in the field of enforcement. With regard to these institutions the author has formulated also some criticism about their content, but also in relation to some unconstitutionality decisions, among which some are considered questionable. -
The theme of this study is the public order considered in its sense of limit of the principle of contractual freedom. The author starts in the analysis of this concept from the finding that, at present, it is almost impossible to formulate a definition sufficiently comprehensive, in order to be unanimously accepted by the specialized doctrine and by the case law. This is because it is a notion whose content is constantly evolving, depending on the needs of the judicial life, which is in an increasingly accelerated dynamics. Therefore it finds that the current public order has two components: the classical public order and the modern public order; the first has been and continues to be conservative and the second intends to be innovative. The classical public order usually consists in defending the main pillars of support of the society, such as: the state, the family and the individual, as well as the fundamental human rights, called „personality rights”. The modern public order has the mission to respond to the demands of the contractual life, determined mainly by the great economic changes that took place and continue to take place in the modern society.
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A new decision of the European Court of Human Rights (the Judgment of 19 June 2018 pronounced in the Case Bursa Barosu Bașkanligi et al. against Turkey) strengthens the case law according to which the useful effect of the right to a fair trial presupposes also the right to execute the justice decisions (inaugurated in 1997), including those that protect the environment (initiated by the Judgment of 12 July 2005 in the Case Okyay against Turkey) and opens new perspectives in this matter. Limited to procedural issues, the decision contributes, however, to the nuancing of the problems, encourages the progress of the effectiveness of environmental law by judicial means and, through the suggestions offered, underlines the need to particularize the legal reaction to the specific of the ecological realities. The deception is mainly resulted from the limitation to the data of the judicial precedent and the failure to fully use the capacities related to the involvement of the civil society in promoting the environmental judicial progress.
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Încheierea definitivă pronunțată de către judecătorul de drepturi și libertăți de la Judecătoria Sighetu Marmației, în conformitate cu dispozițiile art. 4886 alin. (7) din C.pr.pen., ne oferă prilejul comentariului de față. În speță, la data de 22 ianuarie 2018, persoana vătămată (constituită parte civilă) P.J. a depus plângere prealabilă la Parchetul de pe lângă Judecătoria Sighetu Marmației, solicitând efectuarea de acte de urmărire penală față de făptuitorii B.I., B.M. și C.V. pentru săvârșirea infracțiunii de degradarea terenurilor agricole, prevăzută de art. 107 din Legea nr. 18/1991, Legea fondului funciar, actualizată, raportat la dispozițiile art. 253 alin. (1) din C.pen. În susținerea plângerii, a menționat că la data de 3 ianuarie 2018 făptuitorii au trecut de mai multe ori cu atelajele proprietate personală trase de câte 2 cai, încărcate peste capacitate, peste terenul de natură fâneață pe care îl deține, împrejurări în care, sub greutatea încărcăturii, copitele cailor de tracțiune și roțile atelajelor au creat urme adânci în solul puternic îmbibat de apele pluviale, terenul agricol fiind degradat pe o suprafață de 900 mp.
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Cloud Computing is considered one of the most significant advances in information technology. Specialists agree that in a matter of a few years, almost all data will be in the Cloud. The field of digital forensics has grown rapidly over the last decade due to the rise of the Internet associated crimes and different frauds. Cloud forensics is the process of identifying, preserving, analyzing and presenting digital evidence in a manner that is legally acceptable. Traditional computer forensics consists in collecting data where the system is located. Cloud forensics is difficult because there are challenges with data location, multi-tenant hosting, synchronization problems and techniques for data segregation. In this paper we focus on the different stages of a Cloud Computing forensic search. For each phase of the Cloud forensic process, we have included a list of challenges and analysis of their possible solutions. Our research indicates that some problems are technical and others are legal, however the biggest challenges are not technical but legal.
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The law amending and supplementing the Law No 254/2013, a law which has not been promulgated and has not entered into force, has been through a controversial legislative process, involving the disregarding by the legislative power of the effects specific to the decisions of the Constitutional Court, pronounced before the enactment of the laws, assisting in the delivery of three decisions of the Court with regard to the same law, by two of them being established the unconstitutionality of the law as a whole. Finally, as a result of the cessation by law of the legislative process, the only possibility of the legislative power to regulate the regime of home detention is represented by the start of a new legislative approach, this time in compliance with the principle of bicameralism. At the same time, the intrinsic analysis of the provisions regarding the regime of home detention has resulted in the identification of legislative gaps, of the lack of clarity of the legal nature of the institution, of the lack of precision and predictability in the process of applying the regime of home detention, as well as in the identification of numerous cases of legislative parallelism. In compliance with the legislative will to establish the regime of execution of the imprisonment sentence at home, the results of the intrinsic analysis have led to the formulation of some de lege ferenda proposals regarding the regulation of the regime of detention at home, by amending Law No 254/2013.
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The authors analyze, making comments on two cases of judicial practice in the field of risk drug trafficking also on performing operations with products likely to have psychoactive effects. Commenting on the first case, the authors observe the rarest that can be found in the judicial practice in the matter of drugs, namely the existence of a putative deed consisting in the transportation of a supervised delivered parcel in which all the drugs were replaced with other materials, and the person who carried the parcel without drugs was accused of trafficking of risk drugs in the modality of transportation of drugs without right. Commenting on the second case, the authors criticize a solution given by Tribunal of Brăila and the Court of Appeal of Galați, on the ground that the convicted defendant was, in fact, in a factual error with regard to the fact that in the small envelopes he traded as ethnobotanical products there have been identified fragments of cannabis plant mass.
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The intangible cultural heritage is a crucial factor in shaping the personality and identity of a human being. At the beginning of the 21st Century, faced with the deepening globalization, commercialization, consumerism, technological progress and urbanization, it is necessary to take, without unjustified delays and considering future circumstances, actions for the protection of the intangible cultural heritage. This study presents the genesis, the legal regulations and mechanisms that were developed under the aegis of the United Nations Educational, Scientific and Cultural Organization. The measures taken by UNESCO1 and by the individual states to reach the set targets should follow the spirit of tolerance, empathy, cultural plurality and respect for human rights.
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Divorce requires a continuous monitoring of the quality of adults-children relationships, as well as the development of some emotional connections based on authenticity, availability, respect, safety and warmth. In order to resolve the misunderstandings between parents regarding the exercise of rights and the fulfilment of duties, the court asks the delegate of the guardianship authority to conduct a psychosocial inquiry with regard to the conditions in which a child is raised and educated and how the parents fulfil their duties towards the child. One of the objectives of the psychosocial investigation must be to monitor the dynamics of the relations between the child and the parents after the divorce, because these relations do not have a fixed trajectory, being in a continuous modification and development. In the civil procedural law we do not find a minimum set of norms that regulate the procedure of carrying out the „psychosocial investigation” and the content of the „psychosocial investigation report”, a circumstance that has generated mainly a non-unitary case law, lacking the psychological component.
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The procedure of registration of forgery is a procedural incident regarding the evidence by written documents, which can usually have as its object an authentic written document or a written document registered under private signature. In the case of authentic written documents, the procedure of forgery may be used when the authenticity of the findings made personally by the person who authenticated the document is contested, according to the law. In the case of the written documents under private signature, the procedure of forgery can be used when it is claimed that they have been fabricated, being admissible also in the assumption that such a document has been recognized by its author or has been verified in court, if it is proved that the recognition was the result of an actually excusable error. The investigation and establishment of forgery shall be carried out by the criminal prosecution bodies and criminal examination body or by the civil court, by incidental way, in the event that the criminal action cannot be initiated or cannot continue. The procedure of registration of forgery is applicable regardless of the nature of the forgery (material or intellectual) and false written document is also the one whose content is not real, even if there has not been committed by the operation of altering the reality. The provisions of Articles 304-308 of the Civil Procedure Code regulate the procedure applicable in the assumption of registration of forgery against a written document produced in a pending litigation, in which case the provisions of Article 315, of Article 5491 and of Article 580 of the Criminal Procedure Code must be complied with.
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A special category of workers is represented, pursuant to the European and national norms, by the professional maternal assistants. In accordance with Article 1 of the Government Decision No 679/2003, these are natural persons, legally certified, who ensure, through the activity they carry out at their home, the raising, care and education necessary for the harmonious development of the children they receive in placement or in their custody. Although maternal assistants carry out their activity under an individual employment contract (of a special nature), they do not benefit by all the rights in their fullness which the other workers have. Thus, they do not have the right, only restrictively and with permission, to weekly rest, days off or rest leave. This situation is justified by the superior interest of their mission, that of ensuring the raising, care and education of children, their integration without discriminations in the family of the assistants. This is the reason why the European Court of Justice (Grand Chamber) has ruled (in the Romanian Case C-147/17) that the activity of maternal assistant does not fall within the scope of Directive 2003/88.
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The subject of our study is, in essence, the successoral transmission, an institution present in all the works of successions and on which one might think that there are no more aspects with a relatively novelty degree. We are trying to show here, however, some of these aspects, resulting, in addition, that the whole matter of the right of inheritance, although it is a classic segment of the civil law, has, however, unexpected reserves of „freshness”, which urge to the research, which offers new perspectives of approach.
