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As subject of public international law, the European Union is committed not only to observe, but also to develop the public international law and, within this framework, it is established the principle of equality between the Member States, within the limits of the treaties of the Union. The institutional structure of this intergovernmental international organization and the procedure of adoption of the legal acts reflect a nuanced equality between the Member States, which however emphasizes the specificity of the Union. „United in diversity”, a motto to which, according to the Declaration No 52 to the Treaty of Lisbon, not all Member States have subscribed, the European Union promotes an enhanced integration and a political cooperation in which the States act in accordance with the Treaties and, in certain cases, for the purpose of supporting the national interest. The transfer of competences from the States to the Union was achieved gradually, with the economic and political evolution at national and international level, pursuant to the state sovereignty. Equality between states within the European Union is a principle whose application in the current European and international context might reflect a new approach of the European integration and positioning of the Member States within the Union. -
In a more and more obvious „global legal space”, the legal culture – understood as a set of knowledge, creations and forms of expression of law – undergoes fundamental changes and major developments. By rejecting hegemony in favour of hybridization, the realistic perspective involves a „cross-over” of the legal systems, concepts and cultures and calls for important mutations on several levels. Starting from such appreciations, the author analyzes the trends and the prospects, in this context, of the education and of the research of law, doctrine, legal science and deontology of the legal professions in Romania.
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Finding the truth in the criminal trial sometimes requires the hearing as witnesses of some persons who know of factual elements referring to the object of the case. In order that the statements given by these persons should not be influenced by factors of pressure exercised on them, the criminal processual legislation has also instituted some special measures to protect the persons that are going to be heard in this capacity in the criminal trial, being also created special categories, such as the category of threatened witness, of vulnerable witness and of witness included in the witness protection program. This study deals with the transitory situation arisen after the entry into force of the new Criminal Procedure Code where the witness, to whom the status of witnesses with protected identity in the criminal prosecution phase has been granted in accordance with the provisions of the previous Criminal Procedure Code, is heard in the trial phase after the entry into force of the new Code.
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Within this paper, the author makes a brief review of the background, respectively of the grounds of the Decision No 363/2015 of the Constitutional Court, and afterwards he stops to analyze the effects of this decision on the criminal trials ongoing at the date when the mentioned decision is pronounced. In relation to the exigences imposed by the principle of legality of incrimination and to the fact that the text declared unconstitutional has incriminated for the first time a certain conduct as an offence, the failure to reconcile, within the legal time limit, the incrimination text with the provisions of the Constitution of Romania, republished, has the value of a decriminalization.
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Further to the steps taken by the author in order to contribute to the study of the regulations in the field of legal protection of the „intellectual creation”, this study is devoted to the analysis of the definition, the substantive conditions and the reasons for refusal or for cancellation of the registration of the trade mark, especially in relation to the provisions of the Law No 84/1998 on trademarks and geographical indications and of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks. Where it has been necessary, de lege ferenda proposals have been grounded in order to improve the regulations devoted to the discussed aspects.
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This study analyzes the rules within the Romanian labour legislation referring to the attributions of the trade unions in correlation with those of the elected representatives of the employees. It is concluded that there are, in this matter, legal solutions obviously uncorrelated, major errors, unjustified exclusions from the exercise of some attributions of the representatives of the employees in favour of the trade unions. All these despite the fact that, in terms of essential competences – either of the trade unions or of the representatives of the employees –, the legal solutions are identical. In relation to these findings there are made a series of proposals to improve the labour legislation which have as objectives to clarify the role and to state the attributions of the trade unions and of the representatives of the employees in the conduct of the labour relations.
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The area of significance of certain terms used in the Constitution is quite diverse and therefore we cannot be precise about their content, especially when the semantic perception of those terms is not purely legal. Terms, as „homeland”, „nation”, „nationality”, „people”, „national minorities”, „national identity” or „ethnic identity” don’t have at first sight an explicit constitutional significance. The content of these terms evolves with the dynamics of the population. Moreover, some of these terms have a specific meaning in some cultural systems and another meaning in other civilizations. Therefore, they should be explained according to the corresponding social realities, political culture and traditions of the population or community of citizens to whom they will apply.
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This study includes a critical analysis of the provisions of the new Criminal Procedure Code which provide the producing of proof by expertise in case the technical-scientific fact-finding report is contested. The author has in view the wording of the legal text, which he considers as defective, thus allowing different interpretations. The essence of the discussion is related to the mandatory nature or, on the contrary, to the optional nature of producing the proof of expertise in the mentioned hypothesis.
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The procedure of payment order has been regulated as a synthesis, but also as a reformation of the two previous procedures materialized in the Government Ordinance No 5/2001 on the procedure of the payment summons and the Government Emergency Ordinance No 119/2007 on the measures for combating the delay of the performance of the payment obligations resulting from the contracts between professionals. In its legislative work, by the new Civil Procedure Code, the legislator has not only achieved a fusion between the two normative acts, but it has also inserted novelty legislative solutions, bringing numerous amendments to the procedure and following its adjustment to the current legal, social and economic realities, in the attempt to harmonize the Romanian legislation with the European one. This study makes a detailed analysis of the nature of the procedure of payment order, of the characters and of the way it was conducted within the current normative framework, as well as of the vast judicial practice, by identifying the novelty elements of the procedure regulated by the new Civil Procedure Code, which – beyond the guaranteed additional accessibility and efficiency – require clarifications and specifications.
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This study deals with the problem of the judicial remedy and of the time limit for exercising it in case of the rejection on the merits of the application for establishing guardianship. The analysis is carried out from the perspective of the civil procedural provisions which regulate the procedure for settling the non-contentious applications.
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The new Civil Procedure Code establishes the penalties for each day of delay as indirect means of coercion meant to ensure the performance in kind of the obligations to do or not to do which can not be carried out by someone else other than the debtor. The application of these penalties is mainly carried out at the level of the executional procedural law, being conditioned by the initiation of the enforcement and by the existence of a writ of execution, however the legislator, by the law implementing the new Code, tends to generalize the system of penalties to the detriment of the other legal means with similar function. In this context and under the terms of removal of the comminatory damages and of the civil fines for each day of delay, regulated by the provisions of substantive law contained in special laws, it is raised the question of admissibility of the general use of penalties regulated by the Civil Procedure Code at the level of substantive law, before obtaining a writ of execution.
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In respect of the contract of transport, the provisions of the new Romanian Civil Code in the matter (Articles 1955–2008) have the nature of general law, which, as the case may be, is supplemented by the special legislation, specific to each type of transport (rail, naval, road, air). Considering the above, this study makes an analysis of the provisions of the new Civil Code referring to a limited aspect, namely a summary on the rules of this Code, with reference to the civil-contractual liability of the transporter in the contract of transport of goods.
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In this study, by analyzing the legal issues of the respect due to persons also after their death, the author, after proceeding to a comparative law examination in the matter, further makes a study of the Romanian legislation in the field under debate (mainly, Articles 78–81 of the new Romanian Civil Code, as well as other legal provisions written down in special laws, such as: the Law No 95/2006 on the reform in the field of healthcare, the Law No 104/2003 on handling of human dead bodies and removal of organs and tissues from the dead bodies in view of transplant and others).
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In consequence of Romania’s accession to the European Union, in recent years there have been adopted a series of laws (the Law No 315/2005 and the Law No 17/2014 and others) which establish a series of new legal provisions with reference to the acquisition, in Romania, of the right to private property and its subdivisions over land by the foreign citizens and by the stateless persons. In this study, the author makes an interesting analysis of these new Romanian legal establishments, to which it is also added the Regulation (EU) No 650/2012 of the European Parliament and of the Council (entered into force on 17 August 2015) on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of successions and on the creation of a European Certificate of Succession.
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Art. 1100 dispune că creditorul nu poate fi silit a primi alt lucru de cât acela ce i se datorește, chiar când valoarea lucrului oferit ar fi egală sau mai mare. Acest text, care nu este de cât o consecință a art. 9691 și a interpretărei voinței părților, reproduce No. 530 din obligațiile lui Pothier: «Obicinuit, zice acest autor, nu se poate plăti de cât lucrul datorit; și debitorul nu poate să oblige pe creditorul său a primi drept plată alt ceva de cât ceea ce i se datorește.» «Aliud pro alio, invito creditori, solvi non potest.»2 «Nici creditorul, zice art. 1862 din Codul Calimach (1213 C. austriac), nu poate fi silit să primească împotriva voinței sale alt ceva, fără de cât aceea ce are dorit să ceară, nici datornicul nu este îndatorit să dea sau să facă alt ceva, fără de cât aceea ce este dator să dea sau să facă. Aceasta are tărie și pentru vremea, când, și pentru locul, unde, și pentru chipul cum are să se împlinească îndatorirea.»3 -
În primul meu articol, publicat în Dreptul dela 8 Decembrie 1913, arătam că unul dintre cele mai mici și mai sărăcăcioase bugete, în care spiritul de exagerată economie, de adevărată sgârcenie, se arată la fiecare pas, este acel al Justiției. Nu știu cum s’a făcut, că aproape toți miniștrii de justiție, deși avocați prin meseria lor obișnuită, deci cunoscând în deaproape pe magistrați și situațiunea lor materială mai mult decât precară, nu au intervenit până acum de a schimba normele și alcătuirea acestui buget sărăcăcios și nedrept. În adevăr, acest buget, care până mai eri era de 10 milioane, azi, după atâtea secțiuni noui de Curți și tribunale înființate, abia se ridică la 11 milioane și jumătate. Iar salariile magistraților și ale celorlalți funcționari judecătorești, de acum 24 ani, dela legea organizărei judecătorești din 1890, a d-lui Teodor Rosetti, au rămas aceleași! Și cât de mult s’a schimbat în 24 ani situațiunea economică a țărei! Banul s’a eftenit, iar prețul obiectelor de prima necesitate s’a întreit și împătrit chiar.
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The institution of preventive arrest is regulated by the new Criminal Procedure Code in Article 223 and the following, representing the hardest preventive measure that can be taken against the defendant in the criminal prosecution phase, in the preliminary chamber phase or in the trial phase. As it is normal, the institutions referred to in the Criminal Procedure Code appear to be very strictly and concisely regulated, but even so, there may be problems in the practice of the courts and of the public prosecutor’s offices that function next to them, with regard to the interpretation of the rules. The measure of preventive arrest is the harshest of the preventive measures, because it completely deprives of liberty the defendant accused of committing an offence. In relation to the cases in which the measure of preventive arrest may be ordered and the conditions to be satisfied for taking this measure, the practice is not always unitary. If most of the cases expressly provided in the Criminal Procedure Code in which this measure may be ordered do not pose problems of interpretation, their applicability being strict and commonly understood by practitioners, some cases, also expressly provided, bring to light a series of profound legislative matters that will have to be solved, in the future, by means of the legislator’s action of amendment and supplementation of the provisions in the matter or by means of interpretation of these provisions by the High Court of Cassation and Justice in order to unify the judicial practice.
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This paper is a plea for adopting the legal conception on the notion of result of the offence. It points out both the shortcomings of the formal conception, which dominates the current theory on the result of the offence, as well as the shortcomings of the old naturalistic conception, which is still preserved today, being supported by the highly questionable theory of the civil tort liability.
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The debate over the future of the juveniles’ court and the juvenile justice system has been between proponents of a retributive philosophy and advocates of the traditional individual treatment mission. Both punitive approaches and those focused solely on treatment have failed to satisfy basic needs of crime victims, the community and offenders themselves. Neither offers hope for preserving a separate justice system for juveniles. This document outlines an alternative philosophy, restorative justice, and a new mission, the balanced approach, which require that juvenile justice system devotes attention to making amends to victim and the community, increasing offender competencies, and protecting the public, through process in which offenders, victims and the communities are all active participants.
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This study is a thorough analysis of the procedure of judgment in the absence of the defendant. In particular, there are assessed the remedies that the Romanian regulation provides to the one who has been the subject to a procedure of judgment in contumacy. The author brings arguments of comparative law and of systemic interpretation of the internal legal rules, his conclusion being that there are many aspects in which the internal regulation is deficient.
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The most important normative act, which regulates the matter of establishing, organizing and dissolving societies, is Law No 31/1990. According to Article 1 (1) of the Law No 31/1990, for the purpose of carrying out activities for profit, natural persons and legal persons may associate and form companies with legal personality, in compliance with the provisions of this law. Article 1 (2) of the same law provides that the companies referred to in paragraph (1) based in Romania are Romanian legal entities. Violations of legal norms regulating the establishment, organization, modification and cessation of the activities of societies can be manifested in various forms and may, as the case may be, imply criminal, civil, disciplinary, tax liability etc. Taking into account the fact that the companies have a special importance in the field of business, the Romanian legislature criminalizes certain facts of violation of the norms provided by the Law No 31/1990.
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The faulty interpretations of the normative system as a hierarchical system are due to analysing the matters of validity and of withdrawal of legality on the basis of the same methods of interpretation as when the matter of conformity is examined. If we clearly operate this distinction, using the pre-war case law, then the ordinary courts have competences in the matter of contentious of validity of rules and even some competences in the matter of contentious of conformity, despite the Constitutional Court’s claim to monopolize the constitutional contentious of rules. Likewise, they have competences in the matter of contentious of conformity of the infraconstitutional rules with the Constitution, which is questioned only due to the understanding of the normative hierarchy according to the French model, which is not applicable pursuant to the Constitution of Romania. Finally, I will prove that the ordinary courts have the competence to verify the agreement of the rules declared unconstitutional with the C.C.R decision.
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Leave of absence is a motivated missing (absence) from the workplace, being a period when the employee does not work. As the leave of absence from the workplace is not legally regulated by the normative acts in force, in practice, when the employee requests leave of absence in order to solve some personal matters, discussions arise as to whether or not he receives salary during the leave of absence. This study raises for discussion some considerations and proposals referring to the legal status of the leave of absence from the workplace, both for the employees from the budgetary sector and for the employees from the private sector.
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The article analyzes the Decision of the Constitutional Court No 369/2017, by which the phrase „as well as in other requests assessable in cash worth up to ROL 1 000 000 inclusive” was declared unconstitutional. In the Civil Procedure Code, in Article 483 (2), there are listed the judgments that can not be challenged with recourse, among which there are the requests assessable in cash worth up to ROL 500 000. By Article XVIII of the Law No 2/2013, this threshold was increased to the amount of ROL 1 000 000 inclusive. We consider criticizable the establishing of the categories of court judgments that have eluded the recourse taking into account the value criterion and we propose to eliminate this criterion. In our opinion, we agree with the admission of the plea of unconstitutionality, which has eliminated the value threshold for the promotion of judgments that can be challenged with recourse. Likewise, we consider criticizable also the delimitation of the material competence between judges and tribunals, being based on the value criterion. In our opinion, the delimitation of the material competence must be made depending on the nature of the litigation brought to justice, not on the value criterion of the request for summons.
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The present study aims to analyze the autonomy of will regarding the civil legal act, by reference to the limitations that the legal norms, public order or good morals set both in terms of substance and formally. The legal will, a complex psychological phenomenon which is the basis of the conclusion of any legal act, is governed by two basic principles, namely the principle of real will and the principle of freedom or autonomy of will. The principle of real will, enshrined in Romanian law, gives valency to the internal/psychological element to which the party is animated at the conclusion of the civil legal act. As for the principle of autonomy of will, it finds its legal consecration in Article 1169 of the Civil Code, establishing the parties’ freedom to conclude any contracts and to establish their content. However, this freedom must not be viewed in absolute terms, knowing a series of limitations of substance and form, which we have pointed out in this article.
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The oblique action is a means of preserving the claim that has been regulated both in the sense of the new Civil Code and in the sense of the old Civil Code. The new regulation, however, brings some improvements to clarify the conditions and effects of the oblique action. At the same time, the notion of general pledge of creditors is replaced by the notion of joint guarantee. As such, a study on the effects and conditions of the oblique action is extremely useful, especially as it is compared with the provisions of the new French Civil Code. Through this paper we have understood to deal with a very important and up-to-date subject as it is a means of protecting the claims at the disposal of any creditor. At the same time, the parallel with the direct actions comes to clarify the confusion that has been created many times in both doctrine and judicial practice between the two legal mechanisms.
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The foundations of European Union law lie in the reasons that European decision-makers have identified, after the two World Wars, firstly, for the establishment of the European Coal and Steel Community and then of the European Economic Community and the European Atomic Energy Community. These reasons, however, find their origins in the events that essentially marked the first half of the 20th century, identifying themselves, among other things, through the developments recorded by the international society, namely the international law, in general, evolutions which the European society, and, implicitly, the European Union law, would not have been possible to avoid. -
Following the Decisions of the Constitutional Court No 405/2016 and No 392/2017 there are numerous discussions regarding the regulation of the offence of abuse of office, provided by Article 297 (1) of the Criminal Code. The Ministry of Justice has proposed the amendment of Article 297 (1) of the Criminal Code without establishing a value threshold and without the circumstantiation of the injury caused by committing the facts, elements depending on which it can be assessed the incidence or lack of incidence of the criminal law, by ignoring the above-mentioned decisions of the Court. In the public debates organized by the Ministry of Justice different opinions have been expressed in the sense of establishing a derisory threshold of ROL 1 000, in another opinion a threshold of ROL 2 000 000, and in another opinion in the absence of any threshold, without any circumscribing of the offence of abuse of office. In the context of these discussions, we propose the adoption of the regulation of the French Criminal Code in which facts are clearly, precisely and predictably circumscribed.
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This article proposes a solution to identify the initial moment of the period of prescription of the criminal liability in case of the offence of deception, in the particular situation where the material element is separated in time from the immediate follow-up. In order to resolve this matter of law it is necessary to establish the legal nature of the offence of deception, from the point of view of the offence unity. If a progressive offence is in question, the form of legal unity being part of the category of offences with duration of consummation in time, the period of prescription of the criminal liability begins to run from the date of committing the action or inaction.
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The purpose of imposing the criminal processual sanctions is to respect the principle of legality that governs the criminal trial. The principle of legality, established in Article 2 of the Criminal Procedure Code, is the fundamental principle of the criminal trial according to which the conduct of the entire criminal trial, namely in all its phases (criminal prosecution, preliminary chamber, judgment, enforcement phase), takes place strictly according to the provisions stipulated by the law. The effects of this principle are materialized in a series of processual guarantees, one of the most powerful guarantees of the fulfilment of the processual and procedural acts according to the legal rules being precisely the processual sanctions. The problems which arise in the practice in connection with the application and interpretation of the regulations incidental in the matter of criminal processual sanctions have led us to proceed to the elaboration of this study.
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Reopening the criminal trial in case of the judgment in the absence of the convicted person – an extraordinary means of appeal whose admissibility is subsumed to a set of conditions and requirements the fulfilment of which is meant to offer to the defendant the guarantee of a fair trial.
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The aim of the present paper is to cover the main aspects regarding the legal treatment of witness protection in the Romanian criminal legislation by presenting, from a critical standpoint, the current regulation of the witness protection. The authors analysed essential aspects regarding the protection of threatened witnesses, the protection measures ordered during the criminal investigation, the protection measures ordered during the trial or the protected witnesses hearing, as well as the protection of vulnerable witnesses by reporting to the European Convention of Human Rights provisions and jurisprudence. Also, the present paper analyses the probative value of the protected witness statements and contains comparative law matters on witness protection laws in several European countries.
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This study focuses on the legal issues involved by the provisions of Articles 125 (3) and 132 (2) of the Constitution (according to which the office of judge or public prosecutor shall be incompatible with any other public or private office, except for the didactic offices in the higher education institutions) in correlation with the provisions of Article 41 (1) of the Constitution (according to which the right to work shall not be restricted, and everyone has a free choice of his/her profession, trade or occupation, as well as work place). Currently, the relevant administrative practice and case law interpret and apply extensively (lato sensu) Articles 125 (3) and 132 (2). Such approach leads to the presumption that any other activity performed by judges or public prosecutors is forbidden (otherwise triggering disciplinary liability thereof) unless that other activity is not related to didactic offices in higher education or is not assimilated to such offices by special law (or, as it happens most often, by a decision issued by the Plenum of the Superior Council of Magistracy). This study demonstrates that, on the contrary, the aforementioned constitutional provisions establish a presumption according to which the judges and public prosecutors can lawfully perform not only the activities which consist in „didactic offices in higher education”, but also any other activity which is not an „office” and in relation to which there is no „conflict of interest” in the light of the relevant legal provisions. In order to reach this conclusion, the constitutional and legal provisions on the concept of holding multiple „offices” must cease to be interpreted extensively (lato sensu), as it is made currently by the administrative practice and the case law, but restrictively (stricto sensu) – as those constitutional provisions constitute an exception from the constitutional principle of the free right to work, establishing a restriction of this fundamental right exercise. The legal provisions laid down in this field can be qualified as consistent with the Constitution only if their normative content does not produce an extensive application of the constitutional provisions concerning the holding of multiple „offices”. Thus, by the words „other public or private office” (with which the office of judge or public prosecutor is prohibited to be held simultaneously) one has to understand exclusively a public or private activity performed regularly and in an organized manner within an institution (organization) against a remuneration.
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The ordinary courts have the general competence to protect the rights and freedoms of individuals, whether provided or not in the international treaties or in the Constitution of Romania. The Constitutional Court’s claim to be the only one to exercise constitutional justice powers is based on a faulty interpretation of its own competence, which is constitutionally determined as being to ensure the supremacy of the Constitution, and on reducing the constitutional contentious to the contentious of rules. A correct interpretation of the constitutional provisions and the fructification of the Romanian tradition in the matter of constitutional justice demonstrate that the ordinary courts are competent to apply the Constitution in order to protect the rights and freedoms of individuals, therefore to exercise constitutional justice powers, because this is not reduced to the control of the constitutionality of the laws.
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Until the entry into force of the current Civil Code, the maintenance contract was an unnamed one and did not benefit from a regulation by the former Code or by other normative act. Often encountered, developed in time by the practice, the doctrine and the case law, devoid of rules to determine its definition and content, the maintenance contract raised problems due to the difficulty with which it was delimited from similar contracts. In this study, starting with the provisions of Article 2256 of the Civil Code, corroborated with the provisions of Article 2247 of the Civil Code, we are analyzing a real, practical situation of applicability of the provisions of the mentioned articles, showing also the solution which we consider to be the most effective, from all points of view, to solve the problem. It concerns the situation in which the maintenance contract was concluded during the lifetime of an individual who, at the time of conclusion of the contract, suffered from a disease which caused his death.
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Engaging the civil tort liability has as finality the full reparation of the damage. Reparation is a legal means by which the victim may claim to be reinstated in the situation prior to the commission of the illegal act. The right to reparation depends on an objective fact, that of causing the damage. The condition of the certainty of the damage is its most important character. If the damage is not certain, it can not be ascertained whether the right to reparation arose, and if the uncertainty concerns the extent thereof, the object of the claim for damages can not be established. Sometimes, in practice, it is difficult to determine whether the damage invoked is certain or possible. In relation to this condition of certainty of the damage, the damage by loss of the opportunity to gain an advantage is one of the innovative elements of the new regulation, being outlined as a distinct category of reparable damage.
