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Currently, disputes arising from the application of Law no. 85/2006 are a significant part of Romanian contentious matters, the role of the specialized sections within the courts throughout the country being most often overcrowded. For the years of crisis, insolvency is what claims and disputes arising from the property restitution laws enforcement meant for the years of increased growth. Although civil law specialists with tradition find the insolvency proceedings regulation quite simple, it arises nevertheless a number of interesting legal issues, worth a deeper look. One of these is the issue of compatibility between the intervention institution governed by the Code of Civil Procedure, and the applications specific to insolvency proceedings. Due to the fact that our jurisprudence has provided no consistent reply yet to this issue, the author states the reasons for which a particular solution (rule and exception) seems to be required. -
In this study, the author makes a thorough analysis of the provisions of art. 61 letter d) of the Labor Code (Law no. 53/2003, republished) whereby, among the causes for dismissal by reason pertaining to the employee, the case of employee’s failure to professionally meet the job requirements is also expressly regulated.
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The author provides a detailed analysis of the legal content of bribe taking offense provided for in art. 289 of the new Criminal Code. He examines the subject of care proceedings, the subjects of the offense, the objective and subjective sides, the forms, procedures, sanctions and some procedural aspects relating to the deed provided for in art. 289 of the new Criminal Code and its aggravated versions. Also, the author does not hesitate to express his standpoint with regard to the systematization of this offense, the constituent content thereof, its nature, its relations with the provisions of Law no. 78/2000 on preventing, discovering and sanctioning corruption, as subsequently amended and supplemented, and to propose some of his own solutions and ideas in this regard. Not least, the author promotes some of his own opinions on the connection or relationship of this criminal deed with other offenses, as well as regards the law applicable for transitional cases.
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The judicial declaration of presumptive death is covered by art. 49 to 57 of the Civil Code and art. 943 to 950 of the Code of Civil Procedure; these are texts that take over a large part of the old regulation provisions and also bring some novelties. The new legislation no longer requires prior assumption of disappearance and establishes a general case and two special cases of judicial declaration of death.
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In this study, the author makes a thorough analysis of the current regime of private land movement in Romania in the light of the regulations contained in the new Romanian Civil Code (entered into force on 1 October 2011), as well as in other normative acts in force, but adopted earlier (the Forestry Code - Law no. 46/2008, Law no. 50/1991 on the authorization of construction works republished on 13 October 2004, Law no. 350/2001 on spatial planning and urban planning; Law no. 315/2005 on the acquisition of private property rights by foreign and stateless citizens and foreign legal persons; Law no. 71/2011 for the implementation of the new Civil Code. Essentially, the author believes that, although, partially, the new Civil Code relating regulations do not always have a fundamentally (absolutely) new nature, they bring, however, significant changes.
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The areas where the Civil Code brings regulations lacking in the previous legislation include the controversial area of civil legal acts nullity. As shown throughout this article, many of the current legislative solutions are inspired by the previously existing legal literature and jurisprudence, while others are unique. The author’s main concern is reflected in an attempt to outline some features of the civil legal act nullity as they can be drawn from the new regulation.
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Taking into consideration the subtle and random criteria as an incidence in the delimitation of influence peddling from the fraud offences, it is likely that in very similar cases of misleading, the criminal will be lucky due to the occurrence of the influence peddling or it is likely that should not have been lucky when he committed materialized deeds supplementing the constitutive content of the fraud offence in relation to similar material damages. It is likely to cause material damages also in the matter of the formal criminal deeds and in the process of the legal and judicial individualization of the punishment, also the amount of the material damages produced as a result of the concrete endangerment offence should be taken into account. -
In this study the author performs a general exposure of the concept of periodic penalty payments firstly (concept, terminology, origin and evolution; legal nature; goal, legal basis; structure), and then examines the legal regime of the periodic penalty payments in the administrative matter (the grant conditions; the forms of the periodic penalty payments and the liquidation of the periodic penalty payments in the matter, and finally he discusses about the issue of the periodic penalty payments in the administrative matter in the light of the European Convention for the Protection of Human Rights and of Fundamental Freedoms (including in terms of the practice of the European Court of Human Rights from Strasbourg).
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The trust that the patient grants to the medicine professionals for applying the prevention or treatment methods corresponding to his health condition, under the lowest risks, depends on correct and complete information regarding his prevention, diagnostic and treatment activities. Actually, the breach of this deontological duty represents an act of betrayal of his trust, as he could not choose the best solution corresponding to his own interests, in the circumstances in which the patient is free to decide about his own fate. From the legal point of view, this breach of duty results in the civil liability incurred for the prejudices caused to the patient. Considered from the perspective of the biomedical ethics, the physician’s duty to inform the patient brings into focus an interesting subject of research: the manner in which the observance of the patient’s autonomy affects the mechanism of adopting the medical decision related to the diagnostic, the care, the treatment or determining him to undergo certain scientific experiments. From this perspective, the study tries to provide a new approach of the duty of information, but this time from the ethical point of view related to the consideration due to the dignity of the patient human being who is so vulnerable and suffering. The selection of the case law solutions rendered completes the exposure of the legal consequences regarding the breach of this duty.
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The Law No 85/2014 on the procedures for preventing insolvency and of insolvency has been recently adopted and has entered into force. Whereas Article 123 (1), (7) and (8) of this Law provides a series of regulations that aim, directly or indirectly, at the „denunciation” of some categories of individual labour contracts of the employees of the debtor (undergoing insolvency) or at the „dissolution” of such contracts, in this study the author examines the above-mentioned problems. -
The Law No 85/2014 on the procedures for preventing insolvency and of insolvency (which entered into force at the end of June 2014) repeals and replaces the Law No 85/2006 on the insolvency procedure. Obviously, the current law brings a series of new elements, as compared to the previous law. This study briefly presents the main elements of novelty brought, in this matter, by the Law No 85/2014, as compared to the Law No 85/2006, reaching to the conclusion that the regulation of the new law, on the one hand, avoids the financial blocking and, on the other hand, in view of covering the claims, gives greater chances both to the debtors who are in difficulty or in default of payment, and also to the creditors, especially if they are acting in good faith.
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In this study, the author, after presenting some brief considerations on proportionality as a principle of law, presents the theoretical foundations of proportionality, as they are reflected in the Romanian legal doctrine. Finally, the author proposes that, in prospect of future revision of the Constitution of Romania, it must be established, in its very first article, that „the exercise of the state power must be proportionate and non-discriminatory”.
