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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. -
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.
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In this article, the author critically examines matters of criminal procedural guarantees for the injured person, the injured party or civil party, stressing their importance in the administration of criminal justice. In this context, topics on the rights of victims are depicted inspired from the principle of equality of arms, inferred from the (European) Convention on Human Rights and Fundamental Freedoms, the author making some suggestions on repairing the damage caused as a result of the offense. -
Court Judgments for complaints against prosecutor’s not to indict resolutions and ordinances under par. (10) of art. 2781 of the Code of Criminal Procedure are final upon the delivery date thereof. Remaining final upon the date of pronouncing thereof, judgments may not be appealed through ordinary remedies at law. In this article the author analyzes the situation where, if the party was improperly or legally summoned, unable to appear before or to warn the court about such circumstances, it may file an appeal for annulment, extraordinary remedy at law, but which is directed only against judgments pronounced under appeal according to art. 386 of the Code of Criminal Procedure.
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The study examines the issue of autonomy of labor law in relation to civil law while considering the recent assertions in legal literature. Taking into account the classical criteria for delimiting the legal branches within the law – the subject, the specific principles and regulatory method - it is concluded that labor law is a mixed law branch which belongs mainly to private law, applies by way of common law to all labor legal relationships unfounded on individual employment agreement, is self-contained and it capitalizes, where appropriate and possible, the rules of civil law as common law rules. Labor law is not a branch (part) of civil law, but independent component of private law along with common law (civil law).
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Following the entry into force of the new Romanian Civil Code (on October 1, 2011) and the new Romanian Code of Civil Procedure (which will take place on February 1, 2013), in the Romanian civil law doctrine a controversy arose in the sense that divorce exclusive fault of the defendant State (that if the respondent spouse doesn’t file a counterclaim) is admissible only by way of exception, where the reason for divorce consists of a minimum 2-year de facto separation of spouses or, on the contrary in other situations as well. After a thorough analysis, the author opts for restrictive solution, i.e. divorce for applicant spouse’s exclusive fault (if the respondent spouse doesn’t file a counterclaim) is admissible only by way of exception, where the reason for divorce consists of a minimum 2-year de facto separation of spouses.
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Through its varied meanings, “loyalty” is perhaps the noblest moral value. It is, in terms of law, a factor and a marker of legal relationships “moralization”, procedural relations including. Although unanimously accredited in the field legal relationships as well, including procedural relations, the loyalty principle is enshrined in terminis as a fundamental principle of civil proceedings. However, it is an implicit result of numerous provisions in the law of civil procedure, which finds appropriate forms of legal and judicial sanction. In our procedural civil regulatory climate, certain peremptory procedural exceptions having permanent effect make unnecessary the application of the praetorian “estoppel” rule established in common law and subsequently in other legal systems. Fundamental right of access to justice is not incompatible with assuming „duty of loyalty”.
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Appeal for annulment – extraordinary remedy at law under the current Criminal Procedure Code and the new Code of Criminal Procedure – may be exercised against final judgments pronounced by the last instance of judicial control provided there are certain cases expressly mentioned and that it is filed in a given period. Final judgments may also concern other aspects adjacent to criminal proceedings, for example, taking, retention or reversal of preventive measures or enforcement of a European arrest warrant. In such cases, taking into account that the law of criminal procedure does not provide other terms of admissibility, under the dictum “Ubi lex non distinguit, nec nos distinguere debemus”, the author considers that the appeal for annulment extraordinary remedy at law may be exercised in such cases as well; the case law solution stating that the appeal for annulment is admissible only against final judgments resolving the case merits is therefore illegal. -
In Romania, the former Code of Civil Procedure (of 1865, republished in 1948 and amended and supplemented many times since then) with effect from February 1st, 2013 will be repealed and replaced by the current Code of Civil Procedure (Law No. 134/2010, republished on August 3rd, 2012). The topic of producing evidence in the new Code of Civil Procedure is being approached in this study; its authors believe that the new Code has not made essential amendments to the provisions relating to producing evidence, but only a number of additions in some areas such as: trial investigation; selection of the producing evidence procedure; the place of the trial investigation (in closed session and not in open court); producing evidence etc.
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In this paper the author makes a comparative analysis of Art.72 (“notifying the enforcement of collective redundancy”) and Art. 74 (prohibition of new employment subsequent to collective redundancies, employees right to reemployment) of the Labor Code (Law no. 53/2003, republished on May 18, 2011), texts related to the Council Directive no. 98/59/EC of July 20, 1998. In this respect, the author concludes that although usually the said texts of the Labor Code are consistent with the aforementioned Directive, however, the amending / supplementing of the Labor Code is required to imperatively establish a mandatory form of employees representation outside the union organization, taking into account that the “employees representatives” institution (Articles 221 to 226 of the Labor Code) is currently optionally governed (and not mandatory), and only where the employer exceeding 20 employees had not constituted representative unions. -
Pursuant to Art. 147, paragraph (4) of the Romanian Constitution republished on October 31, 2003, “Rulings of the Constitutional Court shall be published in the Official Gazette of Romania. As from their publication, rulings shall be generally binding and effective only for the future”, and pursuant to Art. 147 paragraph (1) of the said Constitution, the provisions of the laws, ordinances and regulations in force found to be unconstitutional shall cease their legal effects within 45 days of the publication of the decision of the Constitutional Court if, in the meantime, the Parliament or the Government, as the case may be, cannot bring into line the unconstitutional provisions with the provisions of the Constitution.. Under these constitutional requirements, the study’s authors comprehensively examine the casuistry these rules have generated, the Constitutional Court jurisprudence in the matters and so on, and the delicate situation arisen because neither the Constitution nor any other law expressly regulates the state of laws or Government ordinances (no longer existing) declared unconstitutional.
