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The authors look at the equipollence principle – related to the moment when the period for the enforcement of a mechanism of redress starts to run – mostly in terms of the case law. Starting from the publication, a short time ago, of the decision issued in a case by the Criminal Section of the High Court of Cassation and Justice, note is taken of the fact that the case law of the supreme judicial authority in criminal matters has varied in this respect in time, starting by the acceptance and enforcement of this principle, followed by the denial of its applicability, and then by its re-enforcement. As regards the same principle, the judicial practice of the High Court of Cassation and Justice in the civil trial-related matter is unitary and constant, meaning that the equipollence theory strictly applies to the cases expressly regulated by law, and no cases when equipollence is also applied for other assumptions as well are identified. The conclusion is that the inconsistencies between the criminal and civil trial-related matters in terms of legislative, doctrine-related and case law approach of this principle, underlined throughout the analysis, should be eliminated both by legislative amendments and by judicial practice unification mechanisms. -
Law no. 202/2010 on certain measures regarding the acceleration of the settlement of lawsuits, the so-called “small reform”, was adopted in order to accelerate the settlement of lawsuits, by ensuring the swiftness of procedures, both in criminal matters and in civil matters, even before the expected entry into force of the new codes (the Criminal Code, the Criminal Procedure Code, the Civil Code, the Civil Procedure Code). In the field of criminal prosecution, certain provisions of the current Criminal Procedure Code were amended, with a view to ensuring swiftness by eliminating the provisions that required the court intervention for the revocation or termination of certain preventive measures if the prosecutor issues a decision for the non-initiation of court proceedings; however, no amendments were correlatively made to other provisions of the code in relation thereto. Therefore, certain disputes might arise in connection with the implementation of such texts of law.
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The excessive activity of the criminal trial-related law in the case of transient situations can ensure the predictable nature of law and the elimination of the cases when the parties are harmed by the limitation of the mechanisms of redress. The reporting of the implementation of the criminal trial-related law regarding hearings and mechanisms of redress upon the court’s notification provides to the parties sufficient prediction as regards the knowledge of such hearings and mechanisms of redress since the initial moment of the judgment phase. The author appreciates that such an approach in the law implementing the new Criminal Procedure Code would ensure an efficient transition from the old criminal trial-related law to the new criminal trial-related law.
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The article reviews the organized crime phenomenon, as cross-border and multinational crime. The first section substantiates the concepts, both from a doctrine-related and a legislative perspective. An important part in terms of content and scope is dedicated to the analysis of European policies and strategies, emphasizing the security strategy of the European Union. The last part presents certain solutions for fighting against the cross-border crime phenomenon.
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Constrângerea moralã, cauzã care înlãturã caracterul penal al faptei prevãzute în art. 46 alin. 2 C.pen., presupune îndeplinirea urmãtoarelor condiþii: sã existe o acþiune de constrângere exercitatã de o persoanã asupra psihicului unei alte persoane, prin ameninþare; ameninþarea sã creeze un pericol grav pentru fãptuitor sau pentru o altã persoanã, în cazul în care nu ar sãvârºi fapta prevãzutã de legea penalã; pericolul cu care se ameninþã sã nu poatã fi înlãturat decât prin sãvârºirea faptei prevãzute de legea penalã.
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The author, in the above mention study, makes a general analysis of Law no. 71/2011 for the implementation of Law no. 287/2009 regarding the Civil Code. In the author’s opinion, Law no. 71/2011 is an extremely valuable legislative act, which ensures very good conditions, not just the understanding and application of the new Civil Code (which entered into force on 1 October 2011), but also the “transition” from the previous Civil Code (from, 1865) to the new ones. -
The autonomous collaterals are regulated, for the first time, by the new Civil Code, within the personal collateral, together with the parent guaranty. The law allots them a small portion, equally essential and simple, so that they may have substance and legal identity. But their legal regime can be essentially revealed through the extension of the analysis to the regulations in the field. The uniform rules for demand guarantees constituted by the International Chamber of Commerce from Paris and the Convention of the United Nations Commission on International Trade Law with respect to the independent guarantee and the stand-by letter of credit. The present paper analyses the legal regulation, the concept and the legal category of the autonomous collateral. The author’s objective is that of revealing its complexity as a legal fundamental instrument in the field of internal and international business.
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The current article examines the issue of the monitoring of the general revenues of the fixed assets (owned by the debtor), by the creditor according to the regulations included in Art. 789-801 of the new (Romanian) Civil Procedure Code (Law no. 134/2010), as compared to the appropriate provisions of the old (Romanian) Civil Procedure Code from 1865, which was successively republished in 1900, as well as in 1948. All in all, as it is only natural, usually, the new regulations are usually, as it is only natural, obviously superior to the previous ones.
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In this study, the author, while reporting certain provisions of the new Civil Code (Law no. 287/2009) and of Law no. 71/2011 for the implementation of the new Code, as compared to certain provisions of the Government Emergency Ordinance no. 44/2008 regarding the performance of the economic activities by self-employed persons, believes that through Art. 11 of Law no. 71/2011, one has not granted legal personality to the individual and family enterprises regulated by the ordinance mentioned above, while on the contrary, through Art. 2324 (4) of the new Civil code (in force as of 1 October 2011), one has implicitly amended Art. 31 of the said Emergency Ordinance. Finally, the author opinionates that the “Monist” concept of the new Romanian Civil Code (namely, the cancelation of the trade law and the existence of a unique civil law, which also incorporates the former trade law) is more of a formal issue, not a substance one.
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The article approaches the offence of “patrimonial exploitation of a vulnerable individual” under the provisions of Article 247 of the new Criminal Code. On these lines, the author conducted a thorough review of its legal content and highlighted issues of procedural nature. Likewise, there are also expressed critical opinions on how the legislature sought to regulate the offence’s conditions of existence, likely to severely limit its factual scope thereof.
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The author analyses crimes such as “Not helping a person who is in need” and “Preventing help” from the new Penal code, revealing, if the case may be, the similarities and differences as compared to the effective penal law. The last part of the article contains elements of comparative law, with reference to the approached theme.
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Sometimes, the deed provided by the penal law was perpetrated in the context of certain states, situations or specific circumstances, which grants it this legitimacy, and under these conditions, one removes one of the essential features of the crime, namely the unjustified nature. The category of the justification causes, which lead to the removal of the essential feature of the crime, consisting of the anti-lawfulness nature also includes the exercising of a right or the fulfilment of an obligation. In order to be deemed as justification, the perpetration of the penal deed must, usually, originate in a normative act, while the consequence of the perpetration of the penal deed must not be the consequence of the abusive exercising of that right. The author of the article shows that the fulfilling of an obligation removes the anti-lawful nature of the penal deed if the obligation is provided by the law, and if the deed is perpetrated within the limits regulated by it. The unjustified nature of the penal deed is removed, and the perpetrator acts so as to fulfil certain obligations imposed by the competent authority, on condition that the order or command is given by a legitimate authority, is mainly given in writing, and it must not be obviously illegal.
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In the current study, the author examines the novel provisions within the new Penal Code with respect to crimes against life. Thus, one has successively analyses the laws sanctioning: murder, first degree murder, murder upon request of the victim, determining or facilitating suicidal, third degree murder, the murder of the new born by the mother. The comments were exclusively concentrated on the differences between the current regulation of these crimes, and the new regulation to be instituted by the new Penal Code. A more detailed analysis was made by the author with respect to the “Murder upon request of the victim”, which is new in the penal Romanian legislation.
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Based on Art. 1361 of Law no. 31/1990 with respect to trade companies (republished), „the shareholders must exercise their rights in good faith, while observing the legitimate rights and interests of the company and of the other shareholders”. While considering this main norm, and by also taking into account the jurisprudence, as well as the doctrine from France and the United States of America, the author reaches the conclusion that, despite the incomplete nature of the law reproduced above, the Romanian law also legally allows, at the moment, the initiation of a (patrimony) liability, either by the legal representatives of the trade company, or by the minority shareholders (associates), or by the legal representatives of the trade company, or even by the minority shareholders (associates) (but in the benefit of the trade company),against the shareholders (associates) who, through their votes (in the general assembly of the shareholders/ associates), have affected the trade company, by not observing Art. 1361 of Law no. 31/1990.
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The new Romanian Civil Code (entered into force as of 1 October 2011, in Art. 1368 (1) provides that “the lack of judgement does not exempt the author of the prejudice from the payment of a compensation to the victim as many times as the person who, according to the law, was entitled to supervise them, cannot be made liable”. Against certain opinions expressed in the doctrine, the author believes that the foundation of such a liability is exclusively the equity, not a form of civil liability.
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The issue of the assigning of the public purchase contracts, of the public works or services assignment contracts is regulated, in Romania, by the Government Emergency Ordinance no. 34/2006, which has entered into effect in June 2006, and then it was successively amended and completed, through 14 Emergency Ordinances or Laws. In the current study, the authors analyse the recent amendments and completions of the Government Emergency Ordinance no. 34/2006 through the Government Emergency Ordinance no. 76/2010 (approved, with amendments, by Law no. 278/2010) with regard to jurisdiction (to the complaints solving procedure by the National Council for Solving Complaints in the field of the Government Emergency Ordinance no. 34/2006). For this purpose, the authors analyse the main amendments in the field, making, as the case may be, positive or negative appreciations.
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In this study, the author examines the two special banking procedures (the special supervision and the special administration), which can be ordered by the National Bank of Romania with respect to the Romanian credit institutions, based on the Romanian legislation in the field (Art. 237 – Art. 24022 of the Government Emergency Ordinance no. 99/2006 on the credit institutions and the capital adequacy, successively modified and amended through four laws and three emergency ordinances between 2007–2011).
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After the entry into force of Law no. 118/2010 (3 July 2010), one has wondered if the provisions of this Law, regarding the reduction – for the staff of the budget units – of the wages by 25% is applied also in the case of the teaching and auxiliary personnel within the budgeted education units, and with respect to pecuniary rights related to the leave of absence for July – August 2010. By evoking controversial solutions in terms of jurisprudence, the author, following an exhaustive analysis of the regulations in the field, reaches the positive conclusion (therefore the reduction of said rights by 25%).
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While discussing if the “Alexandru Ioan Cuza” Police Academy students (those enrolled in the undergraduate programme, day classes) may, during their university studies, conclude individual labour contracts with other employers, the author reaches the following differentiated conclusion, namely: The students of the Police Faculty of this Academy cannot hold any public or private position, except for the teaching positions within the teaching institutions, of the scientific research and literary-artistic activities, taking into account Art. 10 (4) and Art. 45 (i) of Law no. 360/2002 (The policemen’ statute). The students of the Firemen Faculty and those of the Archive Faculty can, during the studies, conclude individual labour contracts with any employer, on condition that this does not affect the honour or dignity or deontology of the stature of public clerk of military employee.
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The correlation between parliament and democracy is a classical one. It has been proven not only by the beginnings of parliamentarism, related to limitation of the omnipotence of the monarch, but also by subsequent developments, especially in the generalization of universal suffrage, but also by the historical experience of the previous century, when the collapse of totalitarian or authoritarian regimes has always been followed by the return to parliamentarism or to a political system in which Parliament’s role is essential. After joining the European Union, its role was enhanced by its involvement in the European decision-making process by means of monitoring the compliance with the principles of subsidiarity and proportionality of the proposed EU legislation or of the implementation of directives into national law.
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Maybe some of the most controversial crimes, the rape and the sexual deviations, gave birth to numerous debates in the specialty literature, as well as in the doctrine, but also different, sometimes contradictory solutions in the legal practice. The author shows that not even the High Court of Cassation and justice succeeded to convince or end these controversies, even though that, through decision no. III/2005, tried to clarify the meaning of the material element of the rape crime. The lawmaker, through the incrimination norm of the rape and sexual aggression crimes of the new Penal Code tries to clarify and avoid, for the future, such issues. The present study highlights these possible problems and solutions.
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The author analyses certain aspects related to prostitution, underlining the fact that, although the new Penal Code no longer incriminates this deed, it is still provided under Law no. 61/1991, representing a contravention punished through fine. In the author’s opinion, the lack of incrimination and the contravention application are not enough to eliminate all the negative consequences (sexually transmitted disease, abortion, human traffic with a view to compel them to supply sexual services, etc.) of the hidden exercising of this old profession. Therefore, in the author’s opinion, this activity should become lawful.
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In this article, the authors deal with the issue of the use of the tax stamps, revenue stamps or special regime standard forms. The authors describe the legal framework, the implications of the non-compliant use of the tax stamps, revenue stamps or special regime standard forms, and identify, at the same time, certain legislation inconsistencies and doubts, and also in some incrimination texts. At the end of the article, one identifies possible remedy solutions of the findings, by also making references to certain de lege ferenda proposals.
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The execution of the warrant represents an essential element in the activity of the police bodies, which must make all efforts so as to arrest the convict. Throughout the article, the author describes the main controversies in the legal practice in relation to this area of activity, also making a critical examination of the legal provisions included in the current Penal Procedure Code, as well as in the new Penal Procedure Code.
