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The recordings made by technical means have not constituted, at least in civil matters, ever since the appearance of the devices that made them possible, an admissible evidence, not being regulated as such by the legislator in the past. In the new regulations, starting with the Law No 217/2003, including in the new Civil Procedure Code, in the conditions of the extended use of electronic means, both in the institutional framework and in the private life, the daily realities have imposed the use of the recordings with technical means as evidence. However, by operating a generalization, the possibility that the data of any kind to be fixed on a computer-based media has led to the penetration of this kind of probation both in the evidence with written documents, in the form of computer-based written documents, and in that of material means of evidence. The inclusion of the recordings, generically speaking, also in the category of material means of evidence generates problems both in terms of identifying their legal nature, with implications on their administration and storage regime, and in terms of establishing their admissibility conditions. The latter also raise the question of establishing the extent of the probationary area related thereto, respectively whether it should be restricted only to proving those legal relations which the facts of legal relevance involve, as well as which categories among these fall within the scope of circumstances likely to be proved in this way. -
Through this study we have made a thorough analysis of the conditions of admissibility of the special cancellation (revocation) action regulated by the provisions of Article 117 of the Law No 85/2014 on the procedures for preventing insolvency and of insolvency, as well as an analysis of the possibility of cancelling (revoking) any fraudulent act concluded by the debtor in the 2 years prior to the opening of the insolvency procedure. Likewise, we have analyzed what operations concluded, in the two years prior to the opening of the procedure, with the persons who have legal relationships with the debtor may be cancelled and the benefits recovered, if they are to the detriment of the creditors, except for the acts concluded in good faith in the execution of an agreement with the creditors, concluded as a result of extrajudicial negotiations for restructuring the debtor’s debts.
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Through this study we have made a thorough analysis of the conditions of admissibility of the special cancellation (revocation) action regulated by the provisions of Article 117 of the Law No 85/2014 on the procedures for preventing insolvency and of insolvency, as well as an analysis of the possibility of cancelling (revoking) any fraudulent act concluded by the debtor in the 2 years prior to the opening of the insolvency procedure. Likewise, we have analyzed what operations concluded, in the two years prior to the opening of the procedure, with the persons who have legal relationships with the debtor may be cancelled and the benefits recovered, if they are to the detriment of the creditors, except for the acts concluded in good faith in the execution of an agreement with the creditors, concluded as a result of extrajudicial negotiations for restructuring the debtor’s debts
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Among the means of protection of a creditor’s rights, the present Civil Code regulates the (Paulian) revocatory action within Articles 1562–1565. This civil action has been regulated also in the previous Romanian Civil Code. However, in this study the author examines exhaustively the admissibility conditions of the revocatory action in the light of the present Romanian Civil Code, which entered into force on 1 October 2011. -
In this study, the author examines the problems of granting in Romania the subsidiary protection for the asylum seekers in case of generalized violence in situations of armed conflict, stating that, according to the internal and international legal terminology, the subsidiary protection is a form of international protection from which the asylum seekers can benefit. In this respect there are presented: the legal framework – international, European and internal – in the matter, as well as the conditions of granting the protection in question for the asylum seekers in case of generalized violence in situations of armed conflict. -
The provisions of art.1538 para. (1) of the new Civil Code define the criminal clause as being that according to which the parties set forth that the debtor undertakes to pay a certain allowance in case of the non-performance of the main obligation, and para. (4) of the same article sets forth: “the creditor may request the performance of the criminal clause without the obligation to prove any prejudice.” In order to grant the criminal clause, it is necessary to meet the following conditions: the existence of a criminal clause validly established, the non-performance, the inadequate performance or the delay performance of the contractual obligation, the debtor’s fault and his putting in default or being in default de jure. At the same time, the penalty cannot be requested if the performance of the obligation has become impossible for grounds which are not imputable to the debtor, such as the force majeure, the act of God, the deed of the victim or of a third party. -
The paper analyzes the conditions for exercising the revision in the criminal trial, respectively the judgments subject to revision, the category of persons who can exercise it, the time limits of declaration, the form in which the application and its content must be made. The study relates to the case law of the national courts before and after the entry into force of the new Criminal Procedure Code, as well as to the relevant provisions of other European legislations. At the same time, there are considered the provisions of the Draft Law for amending and completing the Criminal Procedure Code adopted in the summer of 2018, respectively PL-x No 373/2018.
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The need to analyze the condition of guilt in engaging the legal liability of the physician does not result only from the ECHR Judgment in Ioniță Case, which ruled that the physician’s liability itself is based on the notion of medical negligence, but especially because of its specific aspects. According to recent practice, the intensity of medical guilt in the degree of culpa levissima is able to lead to de facto exoneration from criminal liability (through a symbolic sanction) in order to focus on repairing the victim’s prejudice. The consequence of changing the vision on the medical legal liability from a punitive-criminal liability of the physician to a reparative liability facilitates the perception of the French conception of the contractual liability of the health unit. This does not remove the personal liability of the employed physician, but limits it to a psychic attitude of elusion of the system of cooperation and control of the health unit, which brings it closer to the indirect intention. Hence the need to distinguish between indirect intention and guilt with forethought (recklessness), which in its turn is different from guilt without forethought (negligence).
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In this study the author examines the legal institution of the politics-related conviction from various points of view: legal nature, regulatory manner, effects, similarities and differences to the causes removing criminal liability or consequences of conviction. -
The judicial individualization of the sentence shall be carried out by a complex operation using all those individualization criteria set forth by law (general and special criteria); the need for taking into consideration all the grounds for sentence modification is included within these criteria, as well. Drawn by this need, the Romanian Criminal Code into force (since 1968) contains regulations regarding the manner in which the various grounds for sentence modification must be enforced, when they concur, regulations contained in the provisions of art. 80. Likewise, the new Romanian Criminal Code contains such regulations in art. 79. In this study, the authors have emphasized several systems of sentence determination in case of the concurrence between the grounds for sentence modification. Both the Criminal Code into force and the new Criminal Code adopted an objective criterion concerning the manner in which the various grounds for sentence modification must be enforced, being sensitive to multiple interpretations and contradictory solutions. The Romanian Criminal Code of 2004 – abrogated, before becoming effective, through the new Criminal Code – which forwarded a system based upon a subjective criterion, by granting the judge the freedom to assess the predominance (prevalence) of the grounds for sentence modification and to give them the due legal effect. From the point of view of the authors of the study, this system seems to be more adequate to settle the problems raised by the concurrence between the grounds for sentence modification. -
The article proposes solutions in the case of concurrence between the reopening of the criminal trial in case of judgment in the absence of convicted person and the resumption of the time limit for appeal, and after an analysis of the two procedures and a comparative analysis of the ordinary and extraordinary means of appeal, it concludes that the reopening of the criminal trial is an extraordinary means of appeal.
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The study1 is structured around case law elements revealed by the European Union Court of Justice in the field of protecting the financial interests, as resulting from the Judgment in Taricco and others Case. The arguments rising from this judgment have effect in two relatively neighboured matters such as fighting European revenues fraud and fighting tax fraud. Solving the case, the Court seems to abolish the borders between the two concepts, generating a series of issues in criminal law. -
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Commercial competition is „a social patrimonial or non-patrimonial relationship, arising between natural or legal persons engaged in economic activities, based on the property right, equal opportunity for competitors, the freedom of action for enterprises, the freedom of choice for consumers and the obligation of the participants in these relationships to enable the exercise of the mentioned rights, in order to ensure a degree of rivalry between competitors which would bring benefits to the consumers, in terms of price, quality of the marketed goods and services”. Competition can be manifested in various forms, namely: perfect competition, also called pure; real perfect competition; imperfect competition; monopolistic competition. From a different perspective, namely that of the respect for fair customs and of the general principle of good faith, the law distinguishes between fair competition and unfair competition. Fair competition is „the situation of rivalry on the market, in which each enterprise tries to simultaneously obtain sales, profit and/or market share, offering the best practical combination of prices, quality and related services, by respecting the fair customs and the general principle of good faith” [Article 11 a) of the Law No 11/1991 on combating unfair competition]. „Unfair competition is... the commercial practices of the enterprises that contravene to the fair customs and to the general principle of good faith and which cause or may cause damages to any market participants” [Article 2 (1) of the Law No 11/1991]. Price is an essential indicator of the social reality and also a market instrument. In the doctrine the market price is defined as „a quantity of money that the buyer is willing to offer and can offer to the producer in return for the good he can offer”. It may have anti-competitive nature when it is derisory or contrary to fair customs.
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In this study the authors examine, rather exhaustively, the problems of regulating the submission of the written notes by the parties, namely: both the „common law” in the matter [Article 244 (2) and Article 394 (2) of the new (Romanian) Civil Procedure Code] and a series of special provisions in the field, included in the same Code [Article 244 (3); Article 244 (4); Article 222 (2); Article 383], and finally, after examining the legal consequences of the non-compliance with the mentioned rules, they formulate a series of interesting conclusions with respect to the topic discussed. -
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The study starts from the premise that the research of the classical Romanian legal and administrative doctrine can offer solutions to topical issues of the public administration, such as public service matters. The historical analysis allows to identify the opinions of some authors who are representative for the public law of the interwar period in terms of the concept and of the characteristics of the public service, of the applicable legal regime, of the categories and forms of organization thereof. Thus, the public service appears as an activity carried out or authorized by the public administration in order to satisfy regularly and continuously a general interest of a national or local collectivity, an activity subject to a legal regime of public law.
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According to art. 20 para. 2 in the Criminal Code, it is called tentative also in the case where „due to the fact that when the acts of execution have been committed, the object was missing from the place the offender believed it were”. This case is defined by the means and the material object, because these two entities are considered the effect’s agents. In the absence of the material object from the place where the offender believed it were, the criminal doctrine concluded two assumptions: first, called the relative impossibility, implies that the material object was absent from the scene while performing acts of execution by the author, while, in case of absolute impossibility, the material object was absent. For a complete image of the role the material object plays within the attempt, the author introduced also some references on the Italian, German and Anglo-American criminal law. -
The author explains in detail the concept of “civil servant”, according to the interpretation of the provisions of art. 175 of the new Criminal Code adopted by Law no. 286/2009, attempting to reveal both the merits and the limitations of the interpretative rule examined contextually. The author examines each of the categories of persons falling, according to the lawmaker’s wish, under the notion of “civil servant”, which he accompanies with examples, at the same time mentioning numerous decisions of the courts of law keeping their validity in relation to the provisions of the new Criminal Code as well. In the end, following the analysis made, the author reaches certain conclusions and formulates some de lege ferenda proposals aimed at improving the text examined. -
Domestic violence is a social problem of contemporary communities, including the Republic of Moldova, because it has not yet found effective preventive solutions and there is no consensus on the coherent definition of domestic violence, especially when it comes to the criminological side of this phenomenon. Therefore, following the research of the specialized literature and various normative acts, we can define the crime of domestic violence as a negative social-legal phenomenon, with mass character, variable from a historical point of view, which consists of all illegal acts (crimes and misdemeanors) committed intentionally against family members, as a rule, for the purpose of controlling and dominating them, which causes physical, psychological or material damage, committed in a certain territory, in a certain period of time characterized by quantitative indices (level and dynamics) and qualitative (structure and character). -
In order to highlight the civil liability structure, as ensuing from the wordings of the new Civil Code, enacted on October 1st, 2011, the author makes the synthesis of the theories of French doctrine developed in this issue: the theory of civil liability unity, the theory of civil liability duality and the intermediate or eclectic theory. Likewise, there are paraphrased discussions taking place at present, in the French doctrine as well, on the existence and relevance of contractual liability. The author presents thereafter echoes that these theories and discussions had within the framework of Romanian doctrine and jurisprudence during the last century. Acting towards the analysis of the wordings under the new Civil Code regulating civil liability, it is concluded that their editors have adopted our contemporary doctrine theory, under which civil liability is unique in its essence, and dual under the legal regime applicable to it. Therefore, following the criterion of the legal system, the well-known dichotomy is preserved: tort liability and contractual liability. -
Potrivit prevederilor art. 60 alin. (1) lit. c) din Codul muncii și art. 21 alin. (1) lit. a) din Ordonanța de urgență a Guvernului nr. 96/2003, interdicția temporară de concediere a salariatei gravide se aplică numai în situația în care angajatorul avea cunoștință la data emiterii deciziei de concediere despre starea de graviditate a salariatei concediate. Deși art. 272 din Codul muncii prevede că sarcina probei în litigiile de muncă revine angajatorului, dovada faptului pozitiv al informării prealabile cade în sarcina salariatei gravide care contestă faptul negativ invocat de angajator că nu a luat cunoștință de starea de graviditate anterior concedierii.
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In this study, after a presentation regarding the establishment of the Commonwealth of Independent States (C.I.S.), in December 1991, the author examines: the legal personality of this international organization; its constituent bodies; the member states of the organization; CIS – present and prospects. -
After the entry into force of Article 1541 of the Civil Procedure Code, the judgments will have a different communication regime as compared to the other procedural documents. More precisely, if the party indicates the appropriate data in order to communicate the procedural documents by e-mail, the court will have the obligation to communicate the judgment to the party by e-mail, in accordance with the provisions of Article 1541 (1) of the Civil Procedure Code, however, it will not be obliged to communicate the summons or the other procedural documents to the respective party by e-mail, since with regard to these procedural documents remain applicable the provisions of Article 154 (6) of the Civil Procedure Code, which regulates only the possibility of the court to communicate these procedural documents by e-mail, and not the obligation of the court to proceed in this way. Therefore, we note the existence of an asymmetry, with regard to the communication regime, between the judgment and the other procedural documents, which is why we believe that the legislator should intervene in order to standardize the communication regime of all procedural documents, there being no reason why the respective communication of procedural documents should be carried out differently. -
This study appeared as a result of a case solved in practice and identifies legal issues also common to many other cases, which, as always, is subject to the analysis and to the specialised criticism, the latter being accompanied by any other possible points of view. -
Potrivit art. 48 alin. (1) C.pen., complice este persoana care, cu intenție, înlesnește sau ajută în orice mod la săvârșirea unei fapte prevăzute de legea penală. Conform art. 174 C.pen., prin săvârșirea unei infracțiuni sau comiterea unei infracțiuni se înțelege săvârșirea oricăreia dintre faptele pe care legea le pedepsește ca infracțiune consumată sau ca tentativă, precum și participarea la comiterea acestora în calitate de coautor, instigator sau complice.
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International agreements constitute a category of legal acts within the European Union (EU). They are concluded by the EU acting alone or jointly with Member States depending on the provisions of the founding Treaties. With the entry into force of the Treaty of Lisbon, the European Union (EU) acquired legal personality. It is therefore a subject of international law which is capable of negotiating and concluding international agreements on its own behalf. The external competences of the EU are defined in Article 216 of the Treaty on the Functioning of the EU. The division of competences between the EU and Member States is also expressed at international level. The current division of competences between the EU and Member States is not set in stone. However, the reduction or extension of EU competences is a delicate matter which requires the consent of all Member States and necessitates a revision of the Treaties. -
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According to the Labor Code (Law no. 53/2003, republished on the 18 of May 2011), the employer, under the pain of absolute nullity, cannot inflict any disciplinary sanction (except the written warning), without beforehand and compulsorily, performing a disciplinary investigation as well, by an individual authorized by the employer to this end. The minimum rules regarding the disciplinary procedure (namely, also those regarding the prior disciplinary investigation) are set forth in the Labor Code and are developed by the Internal Regulations of the unit. Such being the case, this kind of rules cannot be legally established in the collective employment agreement, no matter its level of negotiation (at the level of the unit, of the group of units or of the fields of activity), even if during the period 2007–2010 the national unique Collective Employment Agreement (terminated at present) regulated, against the law, a procedure regarding the (prior and compulsory) disciplinary investigation which included also provisions obviously contrary to the Labor Code. -
The article analyzes the jurisdiction of the Romanian court to settle the divorce application in case of spouses, Romanian citizens, who do no longer reside on the Romanian territory. The problems are analyzed in relation to the Community regulations directly applicable in the Member States of the European Union, as well as to the provisions of the Civil Procedure Code in this matter. -
This article discusses the material and territorial jurisdiction for the settlement in the matter of land fund disputes. The material jurisdiction is examined in terms of art. 94 item 1. letter j), art. 94 items 3 and 4, Art. 95 item 1 of the Code of Civil Procedure and the special regulations contained in Law no. 18/1991, as republished, and the territorial jurisdiction of the perspective of art. 107 para. (1), art. 117 of the Code of Civil Procedure and the special law. The jurisdiction issue concerns the various actions on the land fund, arising from the enforcement of the Law no. 18/1991, as republished. The regulation of the jurisdiction of the actions settlement in the matter of the land fund, in favor of the same court, is proposed de lege ferenda. -
Dispozițiile art. 44 alin. (3) C.pr.pen. reglementează un caz de prorogare legală a competenței, în sensul că infracțiunea de favorizare a făptuitorului este de competența instanței care judecă infracțiunea la care aceasta se referă, competența materială a infracțiunii corelative fiind câștigată mai înainte și independent de reunirea cauzelor. În acest context, dacă judecătorul de cameră preliminară care funcționează la judecătorie, fiind sesizat prin rechizitoriu cu judecarea unei infracțiuni de favorizare a făptuitorului – făptuitorul favorizat fiind judecat de către tribunal – verifică și menține măsura preventivă luată în faza urmăririi penale, violează dispozițiile relative la competența materială a instanțelor de judecată prevăzute sub sancțiunea nulității absolute, potrivit art. 281 alin. (1) lit. b) C.pr.pen. (cu notă critică). -
This study is an analysis of the conditions of admissibility by the procedure covered by Article 56 of the Law No 254/2013 of complaints made by the convicted persons in connection with the awarding of compensation days for inadequate conditions of accommodation and the cancellation of the wage garnishment, measure set up by the tax enforcement bodies in order to recover judicial expenses due to the state by those persons. I have chosen to analyse these two situations in the context in which the judge of surveillance of deprivation of liberty is increasingly faced with such complaints from private persons deprived of liberty claiming violation of rights as a result of the application of these two measures. For the presentation of legal problems and the situation I used national case law of judges of surveillance of deprivation of liberty, but also the national case law of the courts. -
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. -
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. -
Cererea formulată în temeiul art. 595 alin. (1) C.pr.pen., respectiv în caz de intervenire a unei legi penale noi după rămânerea definitivă a hotărârii de condamnare sau a hotărârii prin care s-a aplicat o măsură educativă, se adresează fie instanței de executare, fie instanței corespunzătoare în grad acesteia în a cărei circumscripție se află locul de deținere sau, după caz, centrul educativ ori centrul de detenție. Din perspectiva formelor competenței, cea reglementată potrivit art. 595 alin. (2) raportat la art. 553 alin. (1) C.pr.pen. este o competență funcțională (ratione officii) întrucât vizează o activitate ce se poate realiza strict de către instanța de executare ori de către instanța corespunzătoare în grad acesteia în circumscripția căreia se află locul de executare a pedepsei ori măsurii privative de libertate.
