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One of the extraordinary legal remedies regulated by the Civil Procedure Code is the contestation for annulment. According to Article 503 (2) point 2 and (3) of the Civil Procedure Code, the judgments of the courts of recourse, as well as those of the courts of appeal, may be challenged with a contestation for annulment where the settlement given to that legal remedy is the result of a material error. Besides the phrase „material error”, used in other texts as well, the phrase „material mistake” or the phrase „material mistakes” can also be found in the Code. Thus we appreciate that the legislator was not consistent with the terminology mentioned. It uses the very same phrase, in different contexts and with different meanings, which creates confusions in the interpretation and application of the legal texts. For the lexical and semantic consideration of the phrase „material error”, included in Article 503 (2) point 2 of the Civil Procedure Code, and of the methods of interpretation of the legal rules, it can be concluded that this phrase can not be reduced only to certain procedural errors, but it could also enable the correction of the errors of judgment. -
This study aims to analyse the meaning of the term „reasonable grounds” enshrined in paragraph (2) of Article 11 of Law No 554/2004 on Administrative Proceedings. Neither the relevant framework law, nor any other regulation defines this concept, which creates problems in practice. The tendency in case law is to consider that „reasonable grounds” must be understood as a situation beyond the person’s control, insurmountable, in case of force majeure or fortuitous event. The present study seeks to correct this view and to promote the interpretation that the notion can be understood both in the sense mentioned above and in one where the parties use administrative methods to prevent a dispute from arising. -
In this study, the author proceeds to an exhaustive analysis of the provisions of Articles 519–521 of the new Romanian Civil Procedure Code, which, for the first time in the Romanian legislation, establish „the referral to the High Court of Cassation and Justice for a preliminary ruling for the settlement of some points of law”, also in correlation with some legislations of other states or international jurisdictions in the matter. -
The author of the study critically refers to the contradictory opinions expressed in the doctrine with regard to the scope of companies covered by Article 1931 of the new Civil Code, a text which regulates the tacit extension of the duration of the company contract. Noting that, according to an opinion, the text is applicable not only to the simple company, but also to all companies with legal personality regulated by the Law No 31/1990 on companies, and, according to another opinion, it is applicable only to the simple company, the author advocates and argues his own opinion. According to the author’s opinion, the tacit extension of the duration of the company may occur in case of simple company (without legal personality), regulated by the new Civil Code, but also in cases of stock company and company limited by shares (companies with legal personality), regulated by the Law No 31/1990 (a special law in relation to the new Civil Code). On the contrary, the author considers that the text of Article 1931 of the new Civil Code is incompatible with the legal regime of the general partnership, of the company limited by shares and of the limited liability company (companies with legal personality regulated by the same special law), because, otherwise, the legal rule by which it is recognized to the personal creditors of the associates in these companies the right to opposition to the extension of the duration of the legal person would be eluded. -
Promoting a public „good governance” involves the rationalisation of the manner of functioning of the state and of the instruments used, among which there are those of a normative nature. The proliferation of legal rules – at national level, at European Union level and at international level – is today a general phenomenon, generating costs – legal, administrative, economic and others – more burdensome for the individual and for the entire society. The remedy for this situation is simplification, under its various aspects – administrative simplification, simplification of the legal language or of the legislative techniques –, an old method frequently used, however a new concept trying to stand out in the field of legal theory. The simplification of law as legal-administrative action has undergone various national and EU experiences. These have accredited a series of principles of conduct, have set targets to be attained and have promoted specific methods and techniques for achieving them. -
The study hereunder provides a succinct summary of the case law of the European Court of Human Rights in the field of the right to marriage, or more specifically in the field of restrictions on the right to marriage. In this respect there are examined: the right to marriage of convicts; marriage of transsexual persons; same-sex marriage. Finally, in light of the case-law of the ECHR, the author concludes that are consistent with this case-law the provisions of the new Romanian Civil Code, which entered into force on October 1st, 2011, under which marriage may be contracted only between a man and a woman, marriage between same-sex persons being prohibited, while marriages between same-sex persons, contracted abroad, by Romanian citizens or foreigners are not recognized in Romania. -
Articolul 60 din Codul muncii reglementează ipotezele în care angajatorului îi este interzis, pe o perioadă limitată de timp, să procedeze la concedierea angajaților săi. Articolul sus-menționat are următorul conținut: „(1) Concedierea salariaților nu poate fi dispusă: a) pe durata incapacității temporare de muncă, stabilită prin certificat medical conform legii; b) pe durata suspendării activității ca urmare a instituirii carantinei; c) pe durata în care femeia salariată este gravidă, în măsura în care angajatorul a luat cunoștință de acest fapt anterior emiterii deciziei de concediere; d) pe durata concediului de maternitate; e) pe durata concediului pentru creșterea copilului în vârstă de până la 2 ani sau, în cazul copilului cu handicap, până la împlinirea vârstei de 3 ani; f) pe durata concediului pentru îngrijirea copilului bolnav în vârstă de până la 7 ani sau, în cazul copilului cu handicap, pentru afecțiuni intercurente, până la împlinirea vârstei de 18 ani; -
La data de 20 octombrie 2014, Înalta Curte de Casație și Justiție (ÎCCJ) – Completul pentru dezlegarea unor chestiuni de drept a soluționat trei cauze cercetând „problema de drept ce formează obiectul acțiunii privind caracterul discriminatoriu al dispozițiilor cuprinse în Ordonanța de urgență a Guvernului nr. 9/2013 privind timbrul de mediu pentru autovehicule, aprobată cu modificări și completări prin Legea nr. 37/2014, cu modificările ulterioare, în raportare la dispozițiile comunitare cu care intră în conflict”1 și „dacă dispozițiile art. 4 din Ordonanța de urgență a Guvernului nr. 9/2013 privind timbrul de mediu pentru autovehicule, aprobată cu modificări și completări prin Legea nr. 37/2014, și ale art. 1 alin. (2) din Normele metodologice de aplicare a Ordonanței de urgență a Guvernului nr. 9/2013 privind timbrul de mediu pentru autovehicule, aprobate prin Hotărârea Guvernului nr. 88/2013, se interpretează în sensul că timbrul de mediu se datorează și în situația transcrierii dreptului de proprietate asupra unui autovehicul rulat provenit de pe piața internă a cărui primă înmatriculare a fost anterioară datei de 1 ianuarie 2007”2. -
The author examines the problems of Article 267 of the Treaty on the Functioning of the European Union (in reference to the jurisdiction of the Court of Justice of the European Union to give preliminary rulings). The analysis, starting from brief theoretical considerations, grounds the author’s conclusions on the presentation of a vast case law of the Court of Justice of the European Union in Luxembourg in the matter. -
Regulile de concurență prevăzute de Tratatul privind funcționarea Uniunii Europene2 au menirea de a proteja relațiile comerciale și piața internă. Întrebarea la care răspunde studiul de față este: cine este destinatarul normelor concurențiale la nivelul Uniunii Europene? Răspunsul, deși aparent este unul foarte scurt și se referă la întreprindere (și asociațiile de întreprinderi), totuși ascunde o doctrină bogată și o jurisprudență generoasă a Curții de Justiție a Uniunii Europene. În cele ce urmează, vom analiza noțiunea de întreprindere, care are o anumită sferă de aplicare în dreptul concurențial al Uniunii Europene, cu scopul de a determina care sunt jucătorii principali vizați de normele care protejează concurența pe piața internă.
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Furt calificat. Obiect material, bun mobil aparținând patrimoniului cultural național. Sit arheologic și zone cu patrimoniu arheologic protejat. Aplicarea legii penale mai favorabile. Grup infracțional organizat Faptele inculpaților de a constitui un grup infracțional organizat, urmate de comiterea unor detecții neautorizate într-un sit arheologic protejat, aparținând patrimoniului cultural național, și sustragerea de artefacte arheologice mobile întrunesc elementele infracțiunilor de: constituire a unui grup infracțional organizat, prevăzută în art. 367 alin. (1) C.pen., accesul cu detectoare de metale și utilizarea lor în zonele cu patrimoniu arheologic, fără autorizarea prealabilă, prevăzută în art. 26 alin. (1) din Ordonanța Guvernului nr. 43/2000 privind protecția patrimoniului arheologic și declararea unor situri arheologice ca zone de interes național, republicată, și furt calificat asupra unui bun care face parte din patrimoniul cultural, prevăzută în art. 228, 229 alin. (2) lit. a) C.pen., cu aplicarea art. 5 C.pen.
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1. Achitare nelegalã. Gradul de pericol social al unei infracțiuni. În cazul în care legea prevede, în mod expres, cã o anumitã faptã prezintã pericolul social specific unei infracțiuni, în orice condiții de comitere, instanța nu poate pronunța o soluție de achitare și de aplicare a unei sancțiuni cu caracter administrativ. -
Dreptul european al achizițiilor publice reprezintă una dintre materiile cele mai armonizate din dreptul Uniunii1, atât din perspectiva normelor substanțiale, cât și a celor procedurale (căile de atac împotriva deciziilor autorităților contractante)2
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Recently, the National Council for Solving Complaints has dealt with numerous complaints against the acts adopted by various companies, which do not have the capacity of contracting authorities, but are beneficiaries of public funds for carrying out certain projects of public interest, companies that, under the financing contracts concluded with the financing bodies, are required to perform the purchases necessary for carrying out the projects according to the Government Emergency Ordinance no. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services concession contracts. This article presents, in a comparative manner, the solutions provided for various complaints and the arguments they are based on, from the recent practice of the Council and the control courts, some of the given solutions and arguments exceeding the limit established by legal norms, in the opinion of the author commenting on them. -
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. -
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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The Romanian Civil Code of 2009 has taken over derogatory rules with regard to the nullity of company from the matter of companies with legal personality regulated by the Law No 31/1990, as well as from the European regulations in the field. In this way, the principle of safeguarding the company has acquired a general application in the matter of all companies, regardless of their type. The exceptional rules, which were initially applied only to the companies regulated by the Law No 31/1990, outlining the idea of an atypical nullity, have been thus transferred to the Civil Code, becoming general rules applicable to all private law companies. -
În ipoteza în care nu se face dovada că notificarea de reziliere a fost comunicată în condițiile prevăzute în contract nu se poate considera că a intervenit rezilierea și prin urmare operatorul de telefonie nu este îndreptățit la plata despăgubirii aferente rezilierii contractului. Este posibilă constatarea caracterului abuziv al clauzelor contractuale privind plata penalităților de întârziere și/sau a despăgubirilor datorate în caz de reziliere a contractului, însă instanța de judecată trebuie să pună în discuția contradictorie a părților respectivul aspect. -
Modern society is based on the predominance of organic solidarity over mechanical solidarity and, consequently, on the predominance of the law which ensures cooperation between autonomous subjects from repressive law, which sanctions, through penalty, any deviation from the standards of the common conscience. Modern society is „civilized”, i.e. it is firstly and foremost based on „civil” law, the repressive law only being exceptional, which translates into three principles: that of the subsidiarity of criminal law, that of the necessity and legality of offences and penalties, and that of the additional protection of individual freedom when the subject is criminally charged. The consequence thereof is that, in modern liberal democracies, all repressive law is criminal, that any charge which may lead to the application of a repressive sanction is a criminal charge and that the law-maker cannot assign to the administration the competence regarding the application of repressive sanctions. Under these circumstances, the transformation of some repressive norms into norms of administrative law is a violation of the fundamental principles that structure the legal order of modern liberal states. Nonetheless, this type of practice is becoming more common. In order to ensure individual freedom, this tendency must be corrected. As politicians are not willing to do so, naturally this is a task for the judicial courts, that can rely for this endeavour on the European Court of Human Rights’ constructive jurisprudence. -
The Romanian Labour Code (Article 80) provides that, in case the dismissal was made groundlessly or unlawfully, the court will decide its cancellation and will order the employer to pay a compensation in cash. If the employee expressly requests it, in addition, the court will restore the parties to the situation prior to the issuance of the act of dismissal (therefore it will decide the reinstatement of the employee to the position held). If the employee does not request to be reinstated to the position held, the individual labour contract will cease de jure on the date when the judgment remains final. Whereas the regulation of the Labour Code in the matter (the reinstatement to the position held, if the employee so requests) is, in the author’s opinion, overly rigid, a series of de lege ferenda proposals are made in this study, in the sense of promoting a more pliable (flexible) solution, as regards the mandatory reinstatement to the position, if the employee so requests, in a given case. -
Within this study the author makes a brief examination of the main amendments and supplements of the new Civil Procedure Code, operated during the period passed from its adoption up to the present. Some of the most significant normative amendments and supplements have been operated by the Law No 310/2018 and concern the matter of material competence of judges. The author considers that by these legislative interventions the legislator’s vision about the competence of the courts of first instance has been significantly amended, this being enlarged with cases of special importance, such as those in matters of inheritance and usucapion. In this way, the courts of first instance tend to become, to a certain extent, common law courts, and not courts for the small claims. A change of substance which has been emphasized in a special way is also the one that offers another perspective on the competence of the supreme court in the matter of review. Important evolutions have also been brought in the matter of incompatibility, of the regularisation procedure and in the field of enforcement. With regard to these institutions the author has formulated also some criticism about their content, but also in relation to some unconstitutionality decisions, among which some are considered questionable.
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The article presents the characteristics of the civil action in criminal proceedings, points out the active and passive subjects of the legal action, and concludes that the civil liability insurer may not be obliged, in criminal proceedings, either jointly with the defendant or directly, to pay civil compensations to victims of road traffic accidents. -
The statistics at national level of the disputes of administrative contentious indicate a substantial share thereof in relation to the other matters handled by the courts and reveals an increasingly „blunt” relationship of the Romanian State with its citizen. The alternative means of solving the disputes generated by the activity of the public administration, present in the Romanian legislation, prove to be insufficient to reach the purpose for which they were instituted, and the recent changes brought to the material competence of the administrative contentious courts have generated to a small extent the results pursued by the legislator. The global phenomenon that marks the public law, of progressive replacement of the unilateral character of the public action with models based on dialogue and consensus, more suitable to strengthen the democratic legitimacy and the efficiency of the relations between the administration and the citizens, requires the connection of policies in the field of judicial organization, in this case of the specialized component of administrative contentious and the doctrine of administrative law, to the global approach regarding the resolution of conflicts between the administration and the citizens, including by applying the solutions validated by the experience of other national systems.
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The article analyzes how there are settled in court, according to Chapter V of the Law No 101/2016, the disputes in matters of award of public procurement contracts, of sectoral contracts, of works concession and services concession contracts. The authors emphasise the specific features of the manner of settlement of these disputes, mentioning among them: the material jurisdiction pertains to the section of administrative disputes and fiscal matters of the tribunal, through panels specialized in public procurement, and the territorial jurisdiction pertains to the tribunal in whose district it is located the head office of the contracting authority. The case shall be settled as a matter of emergency and with priority, and filing a request for summons in matters of public procurement shall not have an enforcement suspensive effect. The first hearing shall be set 20 days after the date of registration of the complaint, and the subsequent trial terms can not be longer than 15 days, and the entire duration of the procedure can not exceed 45 days from the date of referral to the court. The judgment may be challenged by recourse, within 10 days from the communication, at the section of administrative disputes and fiscal matters of the court of appeal, which sits in a panel specialized in public procurement. According to the authors, it is justified to establish a special law for the settlement of the disputes in matters of public procurement. -
The article analyzes the advantages which the settlement of disputes by means of arbitration has to offer. Arbitration is an exception from the principle that administration of justice is done by the courts and represents that effective legal mechanism, designed to ensure a fair, faster and less formal, confidential trial finalized by judgments subject to enforcement. Most patrimonial and non-patrimonial causes may be settled by way of arbitration, so that this method of settlement of disputes can be chosen by parties, instead of the common law justice. The conclusion that can be drawn is that, in order to relieve the courts of their role, arbitration is a viable alternative of settlement of disputes.
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Medical malpractice is a subject that lately generates more and more and increasingly heated controversies. On the one hand, the patients are more and more dissatisfied with the medical services and the way they are cared for, the conditions existing in the hospital units, the quality itself of the medical act, and on the other hand, the doctors, besides the fact that they carry on their activity in poor conditions, in underfunded and understaffed hospital units, feel more and more harassed and fear that they can at any time be brought before the prosecutors as possible „criminals”. Within this article we intend to approach a quite delicate topic, namely the settlement of malpractice conflicts. Why is this a difficult problem? Why malpractice conflicts are more „delicate”? Why is it harder to solve such a conflict, as compared to a different kind of conflict? The answer is simple and widely accepted. The doctor-patient relationship is a special one. The doctorpatient relationship involves more than rights and obligations and the exercise thereof. This paper aims to draw attention and highlight the benefits of the settlement of the malpractice conflicts by using alternative methods. The results of the study can be used in the future both as a source for a possible future expansion of this study, but also as a starting point for a possible de lege ferenda amendment of the current legislation. -
The regulation (Article 225) of the new Criminal Procedure Code is not too different from the one (Article 1491 paragraphs 3–8 and Article 150) of the previous Criminal Procedure Code (1968). Instead, the new criminal processual law does no longer provide for the possibility to settle the proposal of preventive detention, in the absence of the defendant, when the defendant is abroad, as it was stipulated in the previous Criminal Procedure Code. The authors analyze the institution of settlement of the proposal of preventive detention, by presenting some critical issues and by proposing some improvements to the new regulation. -
The preventive measures are institutions of criminal law of a coercive nature, by which the suspect or defendant is prevented from engaging in certain activities that would adversely affect the conduct of the criminal proceedings or the achievement of the purpose of the crimin al proceedings. The preventive measures provided in the Code of Criminal Procedure in our country are: detention, judicial control, judicial control on bail, house arrest and pre-trial detention. Of these, pre-trial detention is the measure that generates the most important problems in judicial practice. In this study, we do not intend to make an exhaustive analysis of this preventive measure or to present in detail the conditions for its disposal. -
The aim of this study is to point out the way in which transnational spaces exert their influences on the international legal order and the national legal ones. Theorizing transnational law opens the way of such demarche. Therefore, the overview of some schools of transnational law offers the opportunity for understanding the link between transnational spaces, transnational legal orders and transnational law. The transnational spaces "Mitsubishi" and "FIFA" evolve in transnational legal orders; the latter legal orders inspire the scholars to theorize actively the transnational law itself. Such theorizing may help us to be conceptually equipped in front of future transnational spaces. -
Within the international trade relations, risks may currently arise from certain facts or events that result in conflict situations between the parties involved in commercial operations, having as consequence the appearance of the litigation. In this context, a special place is occupied by maritime litigation, a complex, plurivalent dispute, combining elements emerging from international trade law, transport law and maritime law. The present study aims to identify and analyze the main issues that give the maritime litigation a particular nature, conferring it, legally, a specific character compared to other international trade disputes. The objectives of the research are circumscribed to the analysis of the characteristics of the maritime litigation, of the causes of its occurrence and of its conditions of manifestation. Within the paper, special attention was devoted to studying how to instrument the maritime litigations, with the methods of the maritime technique and the legal and economic solutions used in this matter. With regard to the procedures of settlement of maritime litigations, the study focuses on highlighting the operational phases, the analysis of evidence and of other issues that configure the applicable procedural framework in case the parties involved have expressed the option to settle the dispute for the contentious procedure. Examining the specific features of this original type of disagreement has highlighted a pronounced pragmatic character over the theoretical argumentation taking into account the force of maritime or harbour regulations or usages in this field. The notion of maritime litigation and its regulation became outstanding at a stage preceding the emergence of maritime law. Over time, seafarer’s practices have created usages and traditions specific to trade in goods carried by sea, which have led to the unification and even codification thereof in the context of classical maritime law. The scope of the notion of maritime litigation is much wider than that of the maritime trial and has an earlier application over time, whereas only a part of the maritime litigations lead to a proper judicial trial or to a maritime arbitration. Maritime litigations can be defined as disputes between two or more parties involved in the maritime expedition or between the signatory parties to specific contracts used in all activities related to maritime trade. In this regard, disputes of a maritime nature may arise as a consequence of the non-performance or malfunction of maritime transport contracts, so that it is indicated to mention in these contracts some specific clauses, stating the modality and rules for solving such conflict situations, including the jurisdiction clause, since the non-inclusion of this clause raises disputes over the jurisdiction of the courts of such litigious cases. Maritime litigations are dealt with by the specialists in the field both in the ante-judicial and judicial stage, through the correct coordination of the parties involved and the professional settlement of all the litigious aspects. The specialist in maritime litigations should be a person with cumulative competencies in the technical, economic and legal field, maritime navigation and port exploitation. Solving major maritime disputes is a complex and laborious process, which requires pragmatism, accuracy, increased attention, quick decision and efficiency. The general procedure for dealing with this disagreement is carried out on the basis of a strictly technical, specialized methodology and requires going through several phases such as the finding the occurrence of the event or conflict-generating act, the notification of the parties involved, the collection and preservation of the evidence for defence or for the drawing up of the complaint, quantifying and filing the complaint, taking a decision on the modality of approach, the negotiation and pronunciation of the solution to finalize the case. The resolution of maritime litigations is based on the case law in the field, strongly influenced by international maritime conventions and on the relations created between the rules from various law systems, applicable in the field, in the context of assimilation and implementation of the international trade usages. -
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The paper intends to emphasize the importance and echo of the motivation of jurisdictional acts given in the operation of individualization of procedural measures, with emphasis on preventive measures in criminal proceedings. The analysis is imposed in the recent social and legal context, in which the individual freedom of the person is subjected to particular trials and must be preserved, an objective finally achievable through the analysis and rigorous argumentation of the acts of disposition elaborated by the judicial bodies.
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This article aims to analyze a wage increase for people who traditionally have a PhD title and are working in the field in which they obtained this title. Up to the adoption of the legislation on uniform remuneration in budgetary system, all those who had obtained a PhD title received, without distinction, a wage increase for PhD. The current legislation has provided the inclusion of this increase, as a transitional compensatory amount, in the base salary, the basic pay/salary or monthly allowance, for the employees that had it to be paid on 31 December 2009, but not for those who have won the PhD title after this date. That legislation created a discriminatory situation, on which the National Council for Combating Discrimination was notified, and this has expressed a specialised opinion, which advocated for the competent authorities of the State, Parliament and the Government to proceed to eliminate the difference in legal treatment, so additional salary entitlement to be recognized by the legislature to all employees, regardless of the date on which it was awarded a PhD title. To this end we propose the appropriate modification of the law.
