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In this study the author brings once again to our attention an older idea which, unfortunately, still remains ambiguous, namely the existence of a legal science. In this paper law is approached as doctrine, science and case-law, the author attempting and succeeding in capturing its role in society, as well as its quality of authentic science. -
The person entitled to succession is the person that has the freedom to choose between the acquiring of the title of heir, by accepting the succession, and the denial of such quality, by waiver. The two sides of the successoral option – acceptance of inheritance and waiver of inheritance – both in their sense of subjective rights and in the sense of legal acts must be appreciated and understood in correlation with other notions and institutions, in the first place of the law of succession, and also belonging to other matters of civil law. In this context, there are presented some aspects of regulating the successoral option, which have been interpreted otherwise by doctrine or which have the potential for controversy, among others, as a result of shortcomings in phrasing of some texts of the Civil Code or by failing to observe some relationships they have, as mentioned above, with other legal notions and institutions.
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This study provides a detailed and systemic analysis of the provisions of Article 358 of the Civil Code referring to the partition of common assets jointly owned by the spouses during the community matrimonial regimes. More specifically, it is analysed the possibility to extend the provisions of Article 358 of the Civil Code also over the partition of per-shares common assets of spouses, as well as the applicability of the provisions of Articles 669–686 of the Civil Code within this partition. Likewise, there are distinguished the elements of continuity and those of novelty of the present regulation, referring to the partition of jointly owned common assets during the community matrimonial regimes, in relation to the regulation previously established by Article 36 (2) of the Family Code. Finally, there are expressed some critical opinions in connection with the provisions of Article 36 of the Law No 71/2011 implementing the Law No 287/2009 on the Civil Code referring to the application in time of the provisions of Article 358 of the Civil Code.
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In this paper we intend to determine if the legal regime applicable to the superficies consisting in the right to build on the land of another is different from that prescribed for the superficies established on an existing building. Although it defines it in Article 693 (1), as a form of the right of superficies, the Civil Code does not contain provisions with special reference to the exercise of the superficies consisting in the right to build. Only in the event of ending of this special superficies due to the expiry of its duration, Article 699 (1) and (2) of the Civil Code provides for a regime derogating from the general rules of artificial real estate accession. In these circumstances, the powers of the superficiary who acquired the right to build on the land of another were indirectly inferred from the restrictive provisions contained in Article 695 (2) of the Civil Code, applicable to the superficies established on an existing building. The conclusion we reached is that, when superficies takes the form of the right to build, the superficiary enjoys a preferential treatment compared to that applied to the one who has acquired a superficies on existing buildings. This regime remains favorable in case of ending of the right of superficies due to the expiry of its duration, based on the special rules derogating from the general ones regulating artificial real estate accession established as a result of the ending of the superficies. The common rules applicable to both forms of the right of superficies were not tackled in this paper.
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The author makes an analysis of the stages preliminary to judgment of the appeal ex novo in the view of the new Civil Procedure Code, of the legislation implementing this Code, as well as of the Internal Rules of the law courts, debates the issue of regularization of the application for appeal ex novo and the incidence in the appeal ex novo of the provisions of Article 200 of the Civil Procedure Code. At the same time it is subject to analysis the issue of the law applicable in matters of judicial stamp duty after the entry into force of the Government Emergency Ordinance No 80/2013, concerning the applications for appeal ex novo submitted after 29 June 2013 in trials initiated during the period when in the matter of the judicial stamp duty the Law No 146/1997 was in force.
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In the practice of the courts in our country the punishment imposed for the offence of unintentional killing is, in most cases, imprisonment with suspended execution, even in the situations where the guilt rests solely on the offender or when there are several victims, a fact which can call into question the manner in which the principles governing the individualization of punishments are implemented, whereas, by imposing excessively lenient punishments, in relation to the seriousness of the facts, the desideratum concerning the educational and preventive role thereof is not achieved. -
The institution of appeal in the interest of law has the role of unitarily ensuring the interpretation and implementation of law by courts of law. The legal nature of this procedure is not determined only by the criminal and civil normative provisions governing it. This study argues that this institution is constitutional in nature because, under the Constitution, the High Court of Cassation and Justice has the power to ensure the unitary interpretation of law by the courts of law. There are analyzed the consequences of the constitutional nature of this institution, the limits of obligativity of the settlements of matters of law given by the High Court of Cassation and Justice by means of the decisions ruled in these proceedings, as well as the ratio between the decisions of the Constitutional Court and the decisions of the High Court of Cassation and Justice respectively, ruled for a solution on the appeals in the interest of law. Recent case-law of the Constitutional Court reveals new aspects regarding the possibility of verifying the constitutionality of decisions ruled on this matter.
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This study examines a series of controversies concerning the operation of the penal clause in certain special situations such as: admissibility of penalties running after the cancellation/resolution of contract if, by assumption, the debt had not been yet fully or partly liquidated by the debtor; the issue of the possibility of reducing the amount of „clearly excessive” penalties by the court, if these penalties are „clearly excessive” [Article 1541 (1) b) of the new Civil Code]; the admissibility of the plurality of various clauses that provide penalties and others.
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The preliminary chamber is a new, partly innovative institution for the national criminal proceedings. In fact, this is a qualitative transformation of the provisions of Article 300 of the Criminal Procedure Code of 1968. The preliminary chamber judge is vested with a control form with a specific object and the finality of this control consists in ordering the file for the trial stage on the merits. The jurisdictional control of the preliminary chamber falls within the scope of the entire criminal proceedings as a distinct stage, with its own individualized object.
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This article intends to analyze the provisions of the Civil Code regulating the legal status of nullities of marriage. After a brief introduction, in which general aspects of nullities of marriage are presented, follows a discussion on the legal regime of absolute nullity of marriage and the legal status of relative nullity of marriage from the point of view of those persons who can invoke the absolute or relative nullity, of the imprescriptibility of the right of action for establishing the absolute nullity of marriage and of the prescriptibility of the right of action for annulment of marriage, as well as from the point of view of the possibility to cover the absolute or relative nullity.
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The higher interest of the child is the only finality of the actions of parents and the only criterion that justifies the intervention of the State in the relations between parents and children. In the new Civil Code the main concern of the Romanian legislator is to detension the relationships between spouses and their minor children, recognizing that the higher interest of the children is, first of all, that of being affected to the smallest extent by the effects of the parents’ divorce, thus allowing both divorced spouses to exercise their parental authority. By reference to the previous regulation – the Family Code, it is a radically different vision, „a true revolution in the field”, „a modern solution” according to which, after the divorce, the parental authority is not split up between the parents, but they exercise it together, as recommended by Article 18 paragraph 1 of the Convention on the Rights of the Child. The new Civil Code has established the principle of shared parental authority in order to allow the parents to continue to be, despite their separation, partners in a proactive and effective manner in all important decisions relative to the health, education, training and recreation of their common children, a principle that becomes thus an ideal to be achieved. This study analyzes these aspects.
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This study has as object the logical and legal analysis of the conditions in which, according to Article 341 of the Civil Code, the incomes from work, the sums of money payable as pension within the social insurance system and others similar, as well as the incomes payable under an intellectual property right are considered common assets jointly owned by spouses. The study also includes analyses relating to the categories of incomes and sums that, under Article 341 of the Civil Code, are considered common assets jointly owned by spouses.
