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The examination of the constitutionality of the Government Emergency Ordinance no. 134/2005 has significant implications as regards the legality of the activity of one of the fundamental institutions of the State, which was established for the discovery and punishment of corruption actions. The authors intend to bring clarifications regarding this matter and the need to remove any doubts regarding the complete constitutionality of the AntiCorruption General Directorate. -
The Civil Code expressly introduces the porte-fort convention or the promise of another’s deed in Article 1283, regulation which takes over the institution which was created in the doctrine of the Civil Code of 1865. The current codification places the institution in the section regarding the effects of the contract, but in a subsection distinct from the one devoted to the consecration of the principle of relativity of the effects of the contract. Although the systematic treatment of the principle inevitably implies the exploration of the controversies on the real or apparent exceptions, the incorporation of the analysis of the porte-fort convention in this framework has made the novelty of this legal figure somehow obscured. This article intends to make a critical analysis of the porte-fort convention in the regulation of Article 1283 of the Civil Code also from the perspective of the comparative law, by pursuing in detail the legal regime in terms of notion, forms, nature, legal characters, conditions of validity and effects, as well as the applications of this institution. -
According to the regulations of the Romanian pension law, persons who, prior to 1 April 2001, worked in the work groups I and II benefit of a series of easements at the calculation of pension rights, as well as of the reduction of the standard retirement age. In this study, the author examines a rich and interesting case law of the classification into the work groups I and II – according to Orders no. 50/1990 and no. 125/1990 issued by the Minister of Labor and Social Protection, the Minister of Health and the President of the National Labor Protection Commission, with the mentioning that, under certain conditions, these Orders also apply to the persons retiring subsequent to 1 April 2001, but who carried out activities classified in the work groups I and II (according to the above-mentioned Orders) prior to such date. -
In this study, after a presentation regarding the establishment of the Commonwealth of Independent States (C.I.S.), in December 1991, the author examines: the legal personality of this international organization; its constituent bodies; the member states of the organization; CIS – present and prospects.
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After examining the criminal rules contained in the Government Emergency Ordinance no. 202/2002, the authors formulate several proposals de lege ferenda regarding the crimes regulated by this piece of legislation.
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As regards the possibility to maintain conditional release if, following a merger of penalties, a penalty equal to that from which the convict was released on parole is enforced, two solutions are possible. The first solution consists in deducting only the actually served penalty and incarcerating the convicted person again, and the second solution consists in considering the entire penalty served. The resolution of the controversy depends on the opinion adopted as regards the legal nature of conditional release.
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The author states that the criminal trial should take place with celerity, within a reasonable period of time, according to art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In this context, the submission by the defendants of applications to notify the Constitutional Court of exceptions of unconstitutionality that were previously dismissed numerous times represents an abuse of right committed for the purpose of procrastinating the resolution of the cases.
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The author examines synthetically the changes brought to the institutional structure of the European Union by the Treaty of Lisbon. For this purpose, the author presents the essential institutional changes brought to: the European Parliament; the European Council; the Council; the European Commission (the Commission); the Court of Justice of the European Union.
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The regulation of crimes in the field of the illegal removal and transplant of organs, tissues and cells of human origin at the level of each country is extremely important due to the big social danger of these crimes and the importance of the social values protected by their incrimination, values regarding the life and the physical and mental integrity of the members of society, as well as the respect due to the memory of deceased persons. In this respect, at the level of the European Union, the Directive 2004/23/EC of the European Parliament and of the Council, of 31 March 2004, on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells was adopted. There are numerous European countries in which the crimes in the field of the illegal removal and transplant of organs, tissues and cells of human origin are incriminated in the Criminal Code. Their experience should also be followed by Romania, where, at present, the field is regulated by Law no. 95/2006 on healthcare reform, as subsequently amended and supplemented.
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En la generalidad de las legislaciones societarias actuales, se establece algún tipo de régimen que limita la realización de distribuciones a los socios por parte de la sociedad durante el transcurso de la vida social (durante societate)1. Este régimen forma parte de las medidas que se adoptan legalmente en las sociedades que limitan la responsabilidad de los socios2, para proteger ex ante o preventivamente a los acreedores sociales.
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The article is designed to examine the amendments introduced by the new Criminal Code in the matter of law enforcement in the territory. From this perspective, we notice that the principle of territoriality is supplemented with additional provisions for defining the notions of offense and territory. The principles of personality and reality were adjusted so that they could be effective, yet without burdening the judicial bodies uselessly, and the principle of universality of the criminal law was reformulated in order to apply only to the situations for which the Romanian State has undertaken obligations internationally. New elements were also introduced as regards the international cooperation legal instruments, such as the delivery of persons to another European Union Member State or to an international court, changes that seem justified in the light of international treaties to which Romania is a signatory party.
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The author notices that the new definition of the material element of the objective side of the crime is clearer than the current wording. Unlike the current regulation regarding the sexual intercourse, of any type, in the new wording of the incriminatory rule, the lawmaker refers distinctively to the sexual intercourse, the oral or anal sex, in case of the form of crime, and distinctively to any other acts of vaginal or anal penetration, in case of the assimilated form of crime. The passive subject of the crime may be, in the new wording of the incriminatory rule as well, any person irrespective of gender, age, civil status, including the perpetrator’s wife. The aggravation of the crime is triggered by six aggravation causes, unlike the four in the current Criminal Code, following the provision of new forms of aggravation or the redefinition of aggravation causes in the case of rape against a relative in direct line or against a brother or sister; rape against a minor under 16 years of age; rape committed for producing pornographic materials; rape resulting in the injury of the victim. The incrimination of attempted rape proves the inconsistency of the lawmaker. The system of penalties provided by the new Criminal Code raises the question of enforcing the more favorable criminal law.
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Human personality represents the synthetic expression of biological, psychological and social features, a result of the interaction of fundamental factors: heredity, environment and education. People cannot exist like isolated, single individuals, but only as individuals who are in a permanent cooperation with each other for the purpose of transforming the social environment. For this reason, the human being, as personality, reflects an entire ensemble of psychophysiological, moral and esthetic features and capacities, abilities etc. These factors of the human personality (genetic and acquired) mandatorily create the elements of human dignity: honor, which is an inborn attribute and reputation, which is an acquired attribute. For this reason, the protection of the dignity of the person has represented a subject of legal protection since the earliest times for all legislations, and only the content of incrimination or the penalty prescribed by the incriminatory rule has varied. At present, as well, human dignity represents a fundamental social value that needs to be protected since the normal development of social life is not possible without protecting this value. The European countries with modern legislation have regulated the incrimination of crimes against dignity. In the spirit of our tradition and of adapting the Romanian legislation to the European legislation, Romania is required to do the same thing. The grounds presented in this article represent arguments in this respect.
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According to art. 1088, paragraph 1 of the Romanian Civil Code (in force, “For obligations having as object any amount, damages for performance shall comprise only the legal interest, except for the special rules regarding trade, guarantees and companies”. The author criticizes this regulation that actually leads, in numerous situations, to damaging the creditor, if the maximum interest limit is lower than the amount of the damage caused by failure to perform or late performance of the obligation to pay an amount, showing that the above-mentioned legal solution, taken from the French Civil Code, is not presently provided in the Italian, German, Swiss and English systems. Moreover, the new Romanian Civil Code, published in July 2009, but not yet effective, stipulates (in art. 1535, paragraph 3) that, if the interest due (for failure to perform the pecuniary obligation in due time) does not cover the entire damage incurred, the creditor shall be entitled, in addition, to damages for any additional damage incurred due to debtor’s failure to perform the obligation. In the end, the author considers that the regulation of the possibility for reduction of damages by the court would not be opportune – at present – in Romania.
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Starting from two recent decisions of the Constitutional Court of Romania, according to which the constitutional contentious court ruled that both the grounds and the purview of its decisions are generally mandatory, the authors of the study perform an examination of the case law of this Court, meant to support the stated rule. Based on numerous examples from the Constitutional Court case law, the importance of the grounds of decisions made by the court is emphasized, in particular when in such grounds the Court mentions the consequences of ascertaining the non-constitutionality of the texts under review. The conclusion of the study is that, in essence, the observance of the general mandatory character of the decisions of the Constitutional Court is not only a way to make its purview more efficient, but also to make the grounds more efficient, or the Court’s interpretation of the fundamental law. At the same time, an opinion is expressed that, in order to guarantee the Constitution, the intervention of the Constitutional Court is not only legitimate, but also necessary, in what regards the provision, in the contents of the grounds of decisions, considering the specific effect of constitutional law attached to any of the decisions of the Constitutional Court, of what the effects are of finding the texts under review constitutional or even non-constitutional. -
The author, after explaining the „valorism” and „value debt” concepts, enters into details on the issue of aggregation of default interests (art. 1088 of the Romanian Civil Code – 1865 –, still into force), reaching a conclusion, which agrees to a minority juridical doctrine, that the interest may be aggregated to a value debt.
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In the study above, the author examines the issue of redemption of own shares by a company admitted for trading on a regulated market, under the conditions of art. 1031 of Law no. 31/1990 regarding trading companies (republished on November 17, 2004), of EC Regulation 2273/2003 and of Directive 71/91/EEC. For this purpose, the author reviews: how the redemption of own shares is performed in practice, the juridical effects of such redemption, the funds employed to make the redemption; various specific cases in the matter.
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In considering the very succinct legal regulations (art. 191–203) regarding limited liability companies in Law no. 31/1990 – the Companies Law (republished in 2004, as subsequently amended and completed), the author only examines issues related to such commercial companies, namely: the revocation of their directors, on the one side, and the transfer of shares in limited liability companies, on the other side.
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Starting from the hypothesis of art. 1073 of the Civil Code („the creditor is entitled to obtain the exact fulfillment of the obligation”, otherwise being „entitled to remedies, the latter being called “damages” in the Romanian legal language), the author makes, in this study, a review of the issue of evaluating default damages in the case of money obligations, namely of the (default) interest, then detailing, in the third part, the legal regimen of legal interests in commercial matters.
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In this study, after a brief introduction on parental rights and obligations, the author examines, in the light of the legislation currently in force (Family Code – amended by Law no. 288/2007, and Laws no. 272/2004 and no. 273/ 2004), and in the light of the future Romanian Civil Code (published on July 24, 2009 but not yet into force), the status of parental rights and obligations, provided that the child has been legally entrusted to other persons, discussing, in this manner, with priority, the extent to which the parents are entitled to provide their consent to the marriage of their child (if the child is a minor) or to his/her adoption.
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According to art. 32 of the Land Property Law no. 18/1991 (republished on January 5, 1998) in the case of „establishing” the right of ownership as provided in this law, the land thus attributed to individuals „shall not be alienated by documents between the living for 10 years, starting from the beginning of the year following the one during which the property was registered, under the penalty of absolute nullity of the alienation document”, the city hall, the prefect’s office, the prosecutor’s office or any other interested person being entitled to file a claim for the ascertainment of nullity. The author discusses the general cases resulting from this text of law, and in principal whether the 10-years term lapses (is counted) from the „registration” of the property in agricultural registries or from its „transcription”, or „registration” of an alienated property in transcription registries, namely its „registration” in the Land Book.
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Lately, the National Council for the Settlement of Challenges faced numerous challenges against acts of various commercial companies, without having the capacity of contracting authorities, but who benefit from public funds for the performance of certain public interest projects, companies which, according to the financing agreements concluded with the financing bodies, should have made any acquisitions necessary for the performance of the projects based on the Government’s Emergency Ordinance no. 34/2006 on the award of public procurement contracts, of contracts for the concession of public works and of contracts for the concession of services. The study represents the second part of an article with the same title, published in issue no. 7/2010 of this magazine and is intended to present a comparison of diverging solutions to such challenges and the grounds they are based on, as encountered in the recent practice of the Council and of control bodies.
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In this study, after briefly describing the concept of sovereignty, the author successively examines the sovereignty of member states in their relation with the European Union, express restrictions of sovereignty (changes which occurred in the constitutions of member states); certain issues regarding the permanent integration of member states.
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According to the provisions of art. 270 para. 2 of the Romanian Customs Code, as amended by Law no. 291/2009, for the offence of smuggling to exist, it is necessary that the customs value of the goods or merchandise concealed from customs control exceed RON 20,000 in the case of products subject to excise tax and RON 40,000 for other goods and merchandise. This study is aimed at the identification of the procedures for establishing the customs value of the merchandise, according to the provisions of the Customs Code, of the Regulation for its application and of the Norms applicable to travelers and other individuals, as well as the limitations regarding the ordering of an expert report in the case, by way of ordinance issued by the prosecutor performing the criminal investigation.
