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Availability and predictability of law – essential attributes of quality thereof – are and will certainly be some of the most common grounds for the conventional and constitutional control, not only because these legal requirements stand for fundamental premises of regulating and self-regulating social behaviour in a democratic society, but also because, inevitably, legal regulation always maintains a paradox, apparently insoluble: “the generality of the law” and its “accuracy”. Case law of the European court and the Romanian constitutional litigation court on the availability and predictability of the law is already sufficiently relevant to justify at least a synthetic outline in this area. This is what we attempt to do hereinafter. -
Acþiunea în daune-interese care vizeazã antrenarea rãspunderii civile delictuale a AVAS în temeiul art. 998-999 C.civ. nu atrage aplicarea dispoziþiilor legii speciale cu privire la competenþa curþii de apel în primã instanþã, ci a celor ale art. 1 pct. (1) lit. a) C.pr.civ., fiind vorba despre un litigiu patrimonial (Înalta Curte de Casaþie ºi Justiþie, Secþia comercialã, decizia nr. 1896 din 21 mai 2010). -
In this study - which covers a number of proper approaches on the phenomenon of „political migration” within the Romanian Parliament – the author examines beforehand the role of political groups in establishing the political configuration of parliament, after which she analyzes at large the political migration phenomenon, including regulatory matters (constitutional and statutory), as well as the case law of the Constitutional Court in the matter. Finally, in the conclusions, the author sets forth some of her own views on the phenomenon of „political migration” within the Romanian Parliament, in the context of current political and legal scene of the Romanian State.
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The author carries out a thorough analysis of all the regulations under art. 1381-1395 of the new Civil Code regarding the recovery of damages caused by extra-contractual causes. Thus, in the first part of the study, the author approaches joint liability, in case two or more persons are liable for one and the same damage. Also, a large part of the work deals with the principles governing the right and correlative obligation to recover the damages: the principle of full recovery and the principle of recovery in kind of the damages; both principles are explicitly provided in the texts of art. 1385 and 1386 of the new Civil Code. The central part of the work deals with a review of the recovery of damages by means of a money equivalent, referring in particular to the establishment of compensation for the full repair of personal injuries, both in their material and in their moral form; in the same context, large discussions are presented in relation to the pecuniary recovery of indirect damages. Another special place in the work is held by the presentation of the regulation regarding the correlation between the social security rights of the immediate or the indirect victim and the compensation that may be granted to such victim for recovery of the damages caused. The study ends with a review of the extinctive prescription of the right to claim and obtain in court the recovery of damages under tort liability. -
The article presents some considerations on the special procedural provisions regarding computer search set forth by Law no. 161/2003 on ensuring transparency in carrying out public dignities, public functions and in the business environment, the prevention and sanctioning of corruption. The author examines the nature of the legal institution of computer search and expresses his opinion regarding the need for a distinct regulation of computer search, in relation to the provisions of the Code of Criminal Procedure in the matter of checking and seizing objects and documents, search and technical-scientific finding.
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In Romania, the Civil Procedure Code in force shall be repealed and replaced by the new Civil Procedure Code, which was published on July 15, 2010, but has not come into force yet (the time when it comes into force has not been legally established yet). Until such time, Law No. 202/2010 regarding certain measures to accelerate disputes resolution (The “Small Reform” Law) was enacted and came into force in October 2010. In this study, the author makes a comparative examination of the following issues: the exception of the lack of competence, competence conflicts and the transposition to the current Civil Procedure Code, by taking into consideration Law No. 202/2010 and, respectively, the new Civil Procedure Code. The author reaches the conclusion that, sometimes, in law, the regulations of the current Code are better than the regulations of Law No. 202/2010 or of the new Civil Procedure Code; also, there are contradictions between the new laws (Law No. 202/2010 and the new Civil Procedure Code). Given these facts, certain de lege ferenda proposals are laid down. -
The study aims to analyze how the doctrine and jurisprudence, as well, have interpreted the provisions of Art. 32 of Law 18/1991, in over 20 years of applicability of the law’s wording mentioned. As it shall be ascertained, the law’s wording, improperly designed, can not be logically interpreted so as to produce the effects aimed at by the legislator, unless the restraint term of 10 years starts (has already started) its applicability since the issue date of the title deed. -
The institution of conditional release under judicial control regulated in Title IV, Chapter I, Section V of the Criminal Procedure Code, has been analyzed succinctly in the Romanian specialized legal literature. The problems arising in the context of erroneous interpretations given in practice to the legal texts regulating this institution by the courts of law derive, according to the author’s opinion, from the insufficient approach at doctrinal level of the way in which the conditions under which this measure can be ordered should be interpreted. Of course, the situation should also be analyzed in the light of the particular situation of each case. Thus, the article written by the author intends to analyze the conditions under which conditional release can be ordered after addressing an actual situation submitted to judgment by the courts. -
While the matter of the restoration of real estate abusively seized by the communist state has raised a special interest, both from individuals and from authorities, the subject of the restoration of movable cultural property remained relatively marginalized until the coming into force of Law no. 182/2000, which provides the persons entitled with the possibility of an action for special recovery of movable property, for the purpose of recovering ownership over the movable cultural property illegally seized by the State. This study intends to examine this matter, focusing on the essential aspects of the action for special recovery of movable property put into operation by the lawmaker.
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Over time, the abuse of right has been interpreted in various ways: while the advocates of absolute rights have interpreted it literally, namely as the almightiness of individual rights, the advocates of relative rights claim that the rights of one person end where the rights of another person start, so that the person excessively using its own right commits an abuse of right. As regards the explanation of its punishment, the classical theory assimilates it to tort liability, based on the moral censorship of conduct. Meanwhile, more and more of its hypotheses have become detached from fault. The new Romanian Civil Code accepts these trends partially, still remaining the prisoner of fault, as a basis for civil liability. The above-mentioned study intends to examine in a critical manner the legal solutions provided by the new regulation, trying to explain the punishment of the abuse of right on other ideas than the requirement to punish the guilty conduct of the holder.
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Entrusting personal property to view and verify its operation does not constitute a waiver of its possession or detention, and the appropriation of someone else’s stuff touch-and-go in his grip stands for a fraudulent possession, which, without the consent of the victim, with strict reference to the stuff’s acquisition and not otherwise, shall be construed as crime of theft and not crime of fraud. -
The article hereby reviews the arguments on the need for detention of the presumption of innocence in contravention and, therefore, the proper application of the provisions of art. 6 of the (European) Convention on Human Rights and Fundamental Freedoms. Arguments are the result of uniform and consistent theories and practices of the European Court of Human Rights and the provisions of the Constitution of Romania, republished. Given these arguments, the author considers that the presumption of innocence in contravention is mandatory for the Romanian courts when a complaint of contravention is submitted for trial against a sanctioning act. In conclusion, it urges that the High Court of Cassation and Justice order by an appeal, in the interest of the law, guidance for uniform practice in contravention and / or the legislator to amend laws on this issue, to that effect.
