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Considering the importance that information technology has acquired in recent years and how it has come to influence the criminal policy at the international level, the author of this study founds it necessary to analyse the subject matter of the offence taking into account this new technological context. Thus, it has been attempted to highlight the need for a reconceptualization of the offence’s subject matter, emphasizing the idea according to which intangible elements may be part of its structure. In support of this thesis, there was reviewed the problem of theft of virtual goods and of certain cybercrimes that reveal the existence of an intangible subject matter which is likely to be interposed between the agent’s behaviour and the social value protected by the rule of incrimination. Last but not least, the author has pointed out a possible consequence of the reconceptualization of the subject matter of the offence, referring thus to the applicability of the supporting cause of self-defence. -
The jurists naturally privilege the continuity, stability, coherence. If the political tends to periodically break the coherence of the social structures, the jurists conceive themselves as „doctors” thereof, and „their technique is precisely the extirpation of the void, the anticipation of the crises, the assurance of the continuity, or even the mending, after the stroke, of the ruptures of the institutional weave”1. The legal privileging of the continuity of the social evolution is translated by the structuring of the system on the basis of some principles aimed at attenuating the tendencies of radicalization of the social claims in the name of the prevalence of a certain conception about the good society over its alternatives. It is fundamental for the jurists that the law ensures the priority of the protection of freedom through the mechanisms of the rule of law over the general interest resulted from the democratic exercise of power. The law based on this vision can not be the result of a general transcendent interest over the interests of the members of the society, but must be the result of the accessibility and availability thereof. -
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The social reaction against low severity felonies ask for finding solutions alternative to criminal penalties. The legislator of the new Criminal Code, waiving the institution of absence of the felony’s social danger and replacement of criminal liability, has adopted, for the argument of criminal prosecution, on grounds of the principle of opportunity of exercising criminal action, the institution of waiver of criminal prosecution, and, in terms of substantive criminal law, waiver by the court law of the penalty enforcement. Both institutions, new as concepts in the Romanian criminal legislation, are practically instruments of non-penalization of the actual felony and replacement of criminal liability with an administrative liability, by enforcing administrative sanctions as alternatives for criminal penalties. The regulation of these new institutions, according to the author’s opinion, can however be criticized both in terms of preserving the rights of the injured persons and by the fact that the prosecutor’s assessment powers are far more extended than those of the court of law. -
In this study, based on solid historical and legal documentation, the author argues that the completion of the Romanian unitary national state in 1918 was achieved during a long process of unification: first, the Romanians from the two main countries, Muntenia and Moldova, were united in 1859 in a national state, and then, those from other Romanian historical provinces, which were illegally encroached in the borders of neighbour empires, acted with perseverance for the accomplishment of their national and state unity. The study is divided into four distinct parts. In the first part, the author presents, based on documents, testimonies and memoirs, the idea of Romanian national and state unity as an essential coordinate of the history of the Romanian people. The acts of unification of the Romanian historical provinces with the Romanian Kingdom have legal base on the principle of nationalities and their right to free determination, rights recognized by the victorious powers of the First World War as a basis for solving the territorial aspects generated by the dismantling of the Austro-Hungarian Monarchy and the Tsarist Empire. The acts of union, carried out by popular will expressed in large representative national assemblies, were ratified by acts of national sovereignty by the Romanian State and recognized as such by the 1919–1920 Peace Conference in Paris. The second part emphasizes on the constitutive character of the acts of union with Romania, voted by the constituent national assemblies of Bessarabia, Bukovina and Transylvania during 1918. The article contains documentary data and information about the national liberation movement of Romanians from the three provinces, Bessarabia, Bukovina and Transylvania, and the actions taken for their unification with the Kingdom of Romania at the end of the First World War. In each of the three Romanian historical provinces, various assemblies in which the participants declare their determination for union were formed. The Moldavian Soldiers’ Congress, attended by 800 delegates, represented a large representative body of all social strata and ethnic groups in Bessarabia. The Congress delegates voted for the political and territorial autonomy of Bessarabia. The Congress also decided to establish the council of the country, a parliamentary body made up of representatives of all the nationalities existing on the territory of Bessarabia. On 14/27 March 1918, the council of the country adopted a resolution in which was proclaimed solemnly the eternal union of Bessarabia „with the mother Romania”. -
The current Romanian Civil Code (entered into force on 10 October 2011), unlike the previous Romanian civil legislation, regulates a new legal institution, namely the designation of the guardian of the child by his parent in certain situations (Article 114 et seq. of the Civil Code), apart from the appointment of the guardian by the court. Likewise, the Romanian legislation also regulates the designation of the representative of the natural person, under the special conditions of the Law on the mental health and the protection of persons with mental disorders No 487/2002 or according to the Law No 272/2004 on the protection and the promotion of the child’s rights (republished on 5 March 2014) assuming the child’s parents are working abroad. All these assumptions of designation of the guardianship of the child by his parent represent the object of analysis of this study. -
The new Romanian Civil Code advances a new conception regarding the divorce, essentially different from the conception with which we were familiar under the legislation that is (still) in force. Analyzing the provisions of Arts. 373-404, contained in Book II, “Family” of the new Civil Code, a note must be made of the non-dissimulated liberal “philosophy” on divorce, particularly expressed through the following features: multiplication of the reasons for divorce – in the sense that divorce by the spouses’ agreement may also take the form of a request accepted by the other spouse, the de facto separation is a distinct reason for divorce, allowing for the dissolution of marriage including out of the exclusive fault of the claimant spouse’ the “de-judiciarization” of the divorce procedure – by the fact that marriage termination does not fall under the exclusive competence of the courts of law, in the case of divorce by proper consent, alongside the judiciary means, being also available the means of administrative or notarial procedure, the latter being accessible even in the presence of spouses’ underage children, the limitation of post-divorce legal issues – by encouraging the settlement of “all issues” related to marriage, patrimonial or non-patrimonial, in the relation between spouses, as well as in the relations between parents and children, preferably by the spouses’ agreement of will and, inasmuch as possible, “in one package”, on the occasion of marriage termination. This study is dedicated to these features. In the introductory part (§1), we propose a systematization model for divorce cases, then we analyze the forms taken by divorce according to the reason for marriage termination (§2), making a distinction between divorce as a remedy – by the spouses’ agreement, at the request of either one of them accepted by the other spouse, for health reasons – and divorce by fault – for reasons that are not provided by the law, due to the de facto separation which lasted at least 2 years.
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The study analyzes how the investigation of the trial and debate of the fund has been regulated, from the publication of the new Civil Procedure Code to the adoption of the Law No 310/2018 amending and supplementing the Law No 134/2010 on the Civil Procedure Code. Initially, the investigation of the trial before the first instance was expected to be carried out as a rule, in the council chamber and, by exception, in public session. The debate of the fund could take place both in public session and in the council chamber. The entry into force of the provisions regarding the investigation of the trial and the debate of the fund in the council chamber has been postponed several times, never entering into force, so that by the Law No 310/2018 these provisions be abandoned. In this way, the intermediate situation by which the investigation of the trial and the debate of the fund were held in public session became permanent. In our opinion, it is criticizable to abandon the holding of the civil trial in the council chamber, given the predominantly private character of the rights and interests of the parties involved and the guarantee of the right to privacy.
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Contractul de ipotecă poate fi desființat, sub forma anulării, numai în condițiile art. 1648 alin. (1) C.civ. în ceea ce privește soluționarea cererii de anulare a contractului de ipotecă, exclusiv ca o consecință a rezoluțiunii contractului de vânzare prin care pârâta a dobândit dreptul de proprietate asupra terenului, cu privire la care a constituit ulterior un drept real, reprezentat de dreptul de ipotecă în favoarea pârâtei. Aceste dispoziții fac trimitere însă la regulile de carte funciară, urmând, așadar, ca, în continuare, să fie observate dispozițiile art. 908 C.civ., ce reglementează ipotezele în care se poate dispune rectificarea cărții funciare. -
Conform art. 315 alin. (2) lit. d) C.pr.pen., în cazul în care procurorul dispune soluția de clasare a cauzei, ordonanța trebuie că cuprindă (după caz) și mențiunea sesizării judecătorului de cameră preliminară cu propunerea de desființare totală sau parțială a unui înscris. Acest aspect este reluat în art. 5491 C.pr.pen., care reglementează procedura în asemenea situații; astfel, potrivit alin. (1), în cazul în care procurorul a dispus clasarea sau renunțarea la urmărire penală și sesizarea judecătorului de cameră preliminară în vederea luării măsurii de siguranță a confiscării speciale sau a desființării unui înscris, ordonanța de clasare, însoțită de dosarul cauzei, se înaintează instanței căreia i-ar reveni, potrivit legii, competența să judece cauza în primă instanță, după expirarea termenului prevăzut la art. 339 alin. (4) ori, după caz, la art. 340 sau după pronunțarea hotărârii prin care plângerea a fost respinsă. Conform alin. (3) al art. 5491 C.pr.pen., judecătorul de cameră preliminară poate dispune una dintre următoarele soluții: -
The article addresses the issue of cancellation of documents resulting from the commission of a crime, mainly concerning the special procedure regulated in Article 5491 of the Criminal Procedure Code. The legal nature of the institution of cancellation of documents resulting from the commission of an offence is the same, regardless of whether it is ordered by the court of law, pursuant to Article 25 paragraph 3 of the Criminal Procedure Code, or by the judge of the preliminary chamber, pursuant to Article 5491 of the Criminal Procedure Code. In the majority specialized literature it was embraced the opinion according to which within the procedure of abolition of documents regulated in Article 5491 of the Criminal Procedure Code only the document regarded as instrumentum probationis may be revoked, and not the legal operation attested by the respective document as negotium juris. Also, the majority doctrine considers that the procedure for the cancellation of documents can be applied only in case of committing forgery offences, not also in case the documents would come from committing other offences. This article seeks to question the correctness of these doctrinal opinions, bringing some arguments in the sense that the cancellation also refers to the legal operation (negotium) and may also concern documents resulting from the commission of offences other than those of forgery.
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