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The review is the only legal remedy that can be declared against the judgments of first instance pronounced by the administrative contentious sections. The former regulation of the Civil Procedure Code established that the review is devolutive, only inso far as the reviewed judgment cannot be contested by appeal. At present, being an extraordinary legal remedy, the review can only concern grounds of illegality of the judgment pronounced by the court of first instance. The present study has as object the analysis of the grounds for cassation listed by the Romanian legislator in Article 488 of the Civil Procedure Code from the perspective of the matter of administrative contentious. Thus, each ground for cassation will be briefly analyzed separately, from the perspective of applicability in the processual stage of review carried on before the administrative contentious courts. The analysis contains explanations of the normative texts, as well as examples from the national judicial practice, in which the R omanian courts have applied the grounds for cassation corresponding to the cases brought before the court. The aim of the research is to identify in the national practice the applicability of the grounds for cassation listed by the legislator and to present their effectiveness, following that, in the concluding part of the study, possible remedies regarding the currently existing grounds for cassation be proposed. -
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Unpaid community work has received multiple valences in the Romanian criminal law system, representing either an obligation in the content of the probation measures or a way of executing the penalty of the fine or an obligation that accompanies the abandonment of the criminal prosecution. The complexity of the institution, together with its novelty, has generated a series of difficulties including in respect of the performance of the unpaid community work, this article emphasizing some of these difficulties and proposing solutions for their removal. -
The idea of recognizing nature’s legal capacity, with the consequence of attributing this entity of rights, began to be conveyed some time ago in the specialized literature. With all criticism, the theory has taken a certain shape and has even been included in the legislations, as is the case of Ecuador, which in 2008, by Constitution, Articles 71–74, recognized the law of nature, of the environment in general. Bolivia has adopted legal provisions, but not with constitutional power and, at the same time, has proposed a draft Universal Declaration of Nature Rights, which quickly gained adherence both at the level of states and in specialized literature with moderate optimism because it is stated that „we must be aware that the statement such as the one proposed cannot be expected to have immediate results”. The granting of rights to nature, as a new approach to the law of the environment that conceptualizes the natural, non-human world, as something worthy of protection for its own good, and not just as something that can be used for the benefit of the people, appeared in response to the failure of the model anthropocentric environment protection, also has its place in interesting processes.
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In a modern society, which faces many challenges, from the perspective of complying with the legal rules in force regarding the payment of taxes and duties owed to the state, in which the electronic means of payment and, mostly, the system of payments in virtual currencies, not very strictly regulated nowadays in any part of the world, it is necessary to take special legal measures to control and reduce socially dangerous deeds, such as tax evasion, money laundering, the appropriation by state officials of immeasurable assets, from doubtful sources, unverified or even illegal. The Romanian society has also not been exempt from such legislative and organizational concerns, especially since the specific challenges of an emerging and developing society and in correlation with good European practices have been much more pronounced. From this perspective, the Romanian legislator has designed an ingenious system of control and disclosure of assets acquired under conditions that exclude the justification of their sources of funding by the beneficiaries of these values, being integrated a legislative and administrative system for submission by the civil servants of some asset declarations and an organizational set for carrying out thorough verifications, by a specialized institution, called the National Integrity Agency (hereinafter referred to as ANI). However, in order for the ANI notifications not to unnecessarily burden the role of the courts of appeal in the country, by the Law No 115/1996 for the declaration and control of the assets of dignitaries, magistrates, of some persons with management and control positions and of civil servants, corroborated with the Law No 144/2007 on the establishment, organization and functioning of the National Integrity Agency and with the Law No 176/2010 on the integrity in exercising public functions and dignities, amending and supplementing the Law No 144/2007 on the establishment, organization and functioning of the National Integrity Agency, as well as amending and supplementing other normative acts, it was conceived an integrated institutional framework, through which ANI notifies the relevant cases from the perspective of unjustified assets to a specialized structure, integrated in the system of each court of appeal, called the commission of investigation of assets, which performs a preliminary verification of the evidence attached to the ANI notification and it can take the measure of notifying the court of law with this notification, if the origin of the assets acquired by the civil servant is unjustified, it may close the case, if the source is justified, or it may order the suspension of the control and the referral of the case to the competent prosecutor’s office. The present study intends to reveal the multiple valences of the acts of one of the most specialized institutions for verification and control of the assets of dignitaries and civil servants from Romania. -
While authorities with jurisdiction in the management of European funds exercise control and investigative activities they issue documents which, although they enjoy the presumption of legality like any administrative act, may give rise to litigations. Based on the special normative acts relevant for the management of European funds and on Fiscal Procedure Code, this paper analyses documents issued by such authorities, their legal nature, as well as the procedure for contesting such documents, as a guarantee of the principle of free access to justice. -
The action regulated by Article 1064 of the Civil Procedure Code has a special regime, derogating from the classic situation of tortious civil liability, regulated by Article 1357 of the Civil Code. The practical situation of this action is somewhat uncertain, as there is no unitary judicial practice that decides the legal nature of the action for damages provided by Article 1064 of the Civil Procedure Code. In these conditions, we considered it opportune to analyze the legal nature of the action for damages regulated by Article 1064 of the Civil Procedure Code, in a parallel vision with the provisions of Article 1357 of Civil Code, which regulates tortious civil liability. All this, by reference to those established by a recent court decision resolving such an action for damages. In the present study we tried to offer a perspective and a practical analysis on several situations generated by the application of Article 1064 of Civil Procedure Code. -
In this article, the author analyzes the legal nature of the parliamentary committees and concludes, together with other authors, that they should be considered as internal working bodies of each Legislative Chamber. The role of parliamentary committees, whether standing committees or committees of inquiry, or other special committees, is to prepare the works which are going to be debated in the plenum of the Legislative Assemblies. As working bodies, the parliamentary committees do not have their own decision-making power over the matter referred to them. In other words, the parliamentary committees do not express a political will, in a deliberative sense, because their role is to examine the matters referred to them by the standing bureaux of the Legislative Chambers and to make proposals thereto. The reports and opinions they make on the matters under examination have the value of recommendation made to the plenum of each Legislative Chamber, these being free – as deliberative bodies – to accept or reject the solutions proposed by the committees. Each Chamber of Parliament has the full freedom to set up specialized committees in certain areas of activity. The Constitution obliges the Legislative Chambers to set up permanent committees and to set up – when it deems necessary – committees of inquiry or other special committees. The composition of the parliamentary committees reflects, as far as possible, the political configuration of the Chamber that has decided to set them up.
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The study deals with the problem of the legal nature of the concurrence established between the offence of assault or other violences and the offence of ill-treatment of minor. The identity in material element between the two offences may be complete, in which case they are in formal concurrence. There is a complete identity in material element when both offences involve a duration of consumption in time. The identity in material element can not be complete, in which case the two offences are found in real concurrence. There is an incomplete identity in material element when the offence of ill-treatment of minor involves a duration of consumption in time, while the offence of assault or other violences lacks this feature.
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Unlike the previous legislation, which did not contain any reference to the progressive offence, the new Criminal Code indicates the time from which the prescription period starts to run for this type of offence, without regulating, however, other aspects referring to the criminal treatment applicable to the acts falling within the legal category in question. This task lays further on case-law and doctrine, but, having regard to the numerous contradictory solutions and controversies noted, some regulations to ensure a uniform settlement of the noticed aspects shall be required, de lege ferenda. -
The study thus entitled draws the conclusion that the fiscal inspection report, as a deed preceding the issuance of the notice of assessment, cannot form the object of an action in the fiscal and administrative contentious neither severally nor jointly with the fiscal and administrative document, as erroneously resolved, in some occasions, by the Section of Administrative and Fiscal Contentious of the High Court of Cassation and Justice. -
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. -
The very short term usucapion can be considered a specific simplified usucapion, regulated by the provisions of the Law No 7/1996, as amended and supplemented, which represents a special way of acquiring the property right with regard to the real estates, in principle, not registered in the land book and for which there are no property deeds, through the possession noted in the land book uninterrupted for a period of 3 years. The specific usucapion analyzed applies only for the acquisition of the property right, in case of sporadic registration operation, regarding real estate lands, with or without constructions, which may form the object of private property, not registered in the land book or registered in the land book opened under the Decree-law No 115/1938, in accordance with the law.
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The confession or the recognition has a mixed legal nature; it is primarily a means of evidence, but it also represents an act of disposition of the party that gives the confession. The legislator of the new Civil Procedure Code distinguishes between the probative force of the legal confession and the probative force of the extrajudicial confession, so that, in relation to the provisions of Article 349 (1) and of Article 350 (1) of the mentioned normative act, the two types of confession are no longer on the same level. The extrajudicial confession is left at the discretion of the judge and it may be challenged by the contrary evidence. Instead, the judicial confession is full proof against the person who gave the confession. -
Through this study we have tried to evoke an issue insufficiently addressed in the Romanian law, but which has provoked a series of controversies in the French doctrine and case law. Specifically, we tried to answer the following question: Does dolus require an excusable error? Or if, on the contrary, the (un)excusable nature of the error caused has no relevance for the retention of dolus? Following the presentation of the arguments expressed in the Hexagon, but also by certain Romanian authors, we will present our own point of view on this issue. In our opinion, according to the current Romanian civil regulation, dolus requires the existence of an excusable error, in opposition, for example, with the solution chosen by the French legislator in 2016 or with the vision of the editors of the UNIDROIT Principles. The Romanian judges confirm, in the majority, that it is inconceivable to cancel a contract for dolus, while the alleged victim of the dolus has violated by guilt his obligation of self-information. In other words, the lack of some reasonable diligences in order to know the reality excludes the dolus. -
Environment protection represents a more and more important issue in terms of multiplication of the risk factors for the ecological balance, necessary for the normal course of life, so that it is required to act with more determination in this field, by increasing the weight and the severity of the repressive means against those who significantly prejudice the specific values. As such, the author shows that it is necessary that the role of the criminal law be amplified in order to sanction the deeds that seriously damage the environment, with negative consequences for the quality of life of the human beings and of the other living beings. -
În prezent, de peste un deceniu, problematica organizării și exercitării profesiei de consilier juridic, precum și a statutului acestei profesii este reglementată prin trei acte normative, și anume: – Legea nr. 514/2003 privind organizarea și exercitarea profesiei de consilier juridic1; – Statutul profesiei de consilier juridic2 (în continuare, Statutul – n.n.); – Regulamentul privind recunoașterea calificării profesionale de consilier juridic a cetățenilor statelor membre ale Uniunii Europene sau aparținând Spațiului Economic European, în vederea admiterii și practicării acesteia în România3
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According to Article 41 (1) of the Criminal Code, if the offender convicted by a final judgment is subsequently tried for a concurrent offence, the previously established punishment, under the conditions of concurrence of offences, shall be separated, the increase shall be removed and it shall be merged with the newly applied punishment, adding a new increase. In compliance with Article 10 of the Law No 187/2012, when at least one of the offences in the structure of plurality has been committed under the new law, the sanctioning treatment of plurality shall be applied according to the new law, even if for the other offences the punishment was established according to the former, more favourable law. This legal provision comes in conflict with the principle of non-retroactivity of the criminal law. -
Under current Romanian law (via multiple enactments), authorized translators and interpreters (who translate legal documents of any kind), have no legal knowledge in practice frequently, but philological only (for the foreign language they are duly authorized), whereas Romanian legislation in the field (quite bushy) does not provide for the authorized translator / interpreter a law school graduation as a condition sine qua non. Hence, there are a number of serious complications in practice. Such being the case, the author suggests that those who shall be authorized as translators / interpreters (of legal documents or to legal effects), either hold a degree in law (LLB) or at least having completed relevant specialized courses (possibly at the Romanian Notary Institute). -
In the above study, the author often criticizes the constant case law of the Constitutional Court of Romania, namely the fact that, on the one hand, the resolution by this Court of an exception of non-constitutionality a posteriori (therefore, after the law or the Government ordinance was adopted and published) is no longer legally possible if, as at the date of the Constitutional Court decision, the law/Government ordinance is no longer in force, being expressly abrogated. Moreover, the Constitutional Court also stated that, in the given situation, the examination of the non-constitutionality of the law shall be made by the courts, no matter their type (therefore, not by the Constitutional Court as well). Proving with arguments that the solution passed by the Constitutional Court is legally wrong, the author also emphasizes the serious consequences of the Constitutional law case law (the perpetuation ad infinitum in the future of the effects of a law, Government ordinance, hypothetically unconstitutional). -
On 4 June 2020, Romania marks the Centenary from the signing of the Peace Treaty of Trianon. An essential page of the history of the Romanian nation, which took the form of a peace treaty concluded by the Allied and Associated Powers, including Romania, with Hungary, as the successor state of the Austro-Hungarian Empire, a state defeated in the World War I. By the content of this peace treaty, the Great Powers recognized the Union of Transylvania (and of the Eastern part of Banat) with Romania, respectively the sovereign will of the Transylvanian Romanians expressed by means of plebiscite on 1 December 1918 and, respectively, the Resolution of the National Assembly from Alba Iulia. The Treaty of Trianon has enshrined the realization of the right to self-determination of the nations of the Austro-Hungarian dualist monarchy. For Romania, the mentioned Peace Treaty meant not only the international legal recognition of the Union of Transylvania with the Motherland, but also the confirmation of the political and civil rights of the Romanians who constituted the majority population in this territory.
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The article analyses the main changes brought to the Constitution by the bill currently under parliamentary debate. The conclusion is that the bill represents a failure from many perspectives: transparency and public debate that must accompany such an important project; dialogue between the power and the opposition in the Parliament; ignorance for the result of a national referendum and, last but not least, the faulty wording of the text. Normally, if a Constitution revision is desired, the parliamentary majority should start negotiations with other parliamentary parties with the purpose of forming a Constitutional Convention which is to draft a new bill. If the parliamentary debate continues on the current bill declared, almost entirely, by the Constitutional Court as not respecting the revision limits and a new referendum will be organized for the approval of the bill, this bill has all chances to fail. A new revision bill should be drafted after a long political debate in which citizens must understand the necessity of the revision. Also, a new bill should consider the interests of the citizens and not interests of those in power. -
In the presence of an arbitration agreement, the parties remove the general competence of the common law court for any possible disputes that may arise between them. In this article, the author starts from a case settled in the judicial practice. In the present case, although the arbitration agreement was inserted in the contract of the parties, the applicant nevertheless referred the matter to the court of law. In this situation, before the Cluj-Napoca Court of first instance, the defendant wrongly invoked the plea of territorial lack of competence. The court referred with the matter perpetuated the error and admitted the plea, although it should have qualified it as being the plea of general lack of competence of the court of law. The Cluj-Napoca Court of first instance declined the settlement of the case to Oradea Court of first instance, which took the correct measure and declined the settlement of the case to the Arbitration Court attached to the Timiș Chamber of Commerce, Industry and Agriculture. In our opinion, since the parties have established by their will the competence of the arbitral court for any possible disputes between them, they should respect this aspect and should not refer the matter to the courts of law.
