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The notion of „principle” has known three approaches throughout its history: ontological (philosophical), logical, and normative. Ontologically, it would mean the primary object of knowledge stemming from the intellectual act, by the procedure of induction, generalization (a form of reasoning), starting from the particular and ending with the general, from facts to concepts. In a logical sense, it is a general proposal induced from particular rules, being a source for deductive reasoning wherein the conclusion follows necessarily premises that are sources of orientation: ideas, facts, situations. Legal logic has a wide content, and it is considered that logical principles denote, on the one hand, a body of rules stemming from a methodic and reflected development, rules ordered systematically, and, on the other hand, the axioms that substantiate a rational structure. This is how principles are linked with the perpetual work of sensibly organizing the law (the activity of legislation). In a normative sense, the principle no longer describes the object or a form of logic, nor does it describe an axiom or a reason-based system of rules, but a legal norm/standard whereby an obligation is asserted, establishing a resource for the legal interpreter. Interpretative adages which relate, however, to formal rules of logical reasoning, may clash and lack any compelling force, being used by the judge in the development of his/her own policy. The role of the principles is to ensure the coherence and harmony of the legal system, since they are the expression of superior values embedded in the spirit of the law. Regarding the content and the extent of the principle of legal certainly, legal literature has identified three levels of approach: pre-judicial legal certainty; procedural legal certainty and post-judicial substantial legal certainty; all of them meet to ensure the „predictability of the law” so that the parties/the litigants have a feeling of certainty. -
From the time of the four Geneva Conventions (1949) and the 1st Additional Protocol to those (1977) till present days, the notion of belligerency has extended and restructured itself. The evolutions of terrorist groups from the national level of organization to transnational level start to raise the question of the legal qualification of those structures from criminal groups to belligerents. Has the terrorist group got beyond the borders of national law and start to acquire a legal personality in the international law of armed conflicts? In the present study we will start from the classical definitions of the international armed conflict, non-international armed conflict, then observe the evolution of those notions under the case law of the international criminal tribunals set off by the United Nations for Rwanda and former Yugoslavia, as well as the Status of the International Criminal Court, all reflected in contemporary legal doctrine. At the end, we will analyse the capacity of the terrorist group as armed conflict generating factor. -
The content of the paper reveals the changes in the E.C.H.R. case law occurred in the matter of interrogation of the prosecution witnesses following the pronouncement of the judgments in the cases Al-Khawaja and Tahery v. the United Kingdom, respectively Schatschaschwili v. Germany. The author considers that by the two judgments E.C.H.R. has returned to each of the three conditions imposed by its own case -law for the use as evidence of „anonymous statements”, establishing the exact opposite of those estab lished by its previous case law on those conditions. At the same time, the author emphasizes that through the analyzed judgments E.C.H.R. has practically radically changed its case law outlined over more than 20 years. Next, it proceeds to the presentation of the grounds retained by the E.C.H.R. in the two cases, after which the author emphasizes the obvious contradictions existing between these grounds and those established by the E.C.H.R. on the same issues in previous cases. Finally, the author points out that, despite the contradictions and inconsistencies shown in this paper, presently the case law Al-Khawaja and Tahery – Schatschaschwili exclusively governs the conditions under which it is determined whether by using the „anonymous” or „unverified” statements it has been violated or not the procedural guarantee written down in Article 6 (3) d) of the Convention. -
Starting from the contents of the preliminary theses which seem to announce the imminent entry into force of a new Administrative Code, this study proposes an analysis on a double level: on the one hand, by establishing some correct relations both with the future Administrative Procedure Code and with other hypothetical future codes (the Urbanism Code, the Domain Code, the Contraventional Code, etc.), the matter to be regulated by this new Code should be decided: from a minimalist vision (the central and local public administration plus, possibly, the public function and civil servant) to a maximum one (additionally, the same Code is also going to cover the matter of public services, of goods belonging to the administration, of administrative liability respectively), for reasons of pure opportuneness it is for the legislator to delimit this Code from others which he envisages in the more or less near future. On the other hand, we have approached, at the level of legal details, some problems that, de lege lata, do not have a solution at all or have a questionable solution: the matter of cessation by right of the mandates of the mayors convicted to custodial sentences with suspension of the punishment under supervision, of the mayor’s quality of the State's representative, the daring solution of repealing the provisions of the Civil Code referring to the public property and their development in the Administrative Code, establishing a clear distinction, as far as possible, between the liability (to third parties) of the administration from that of its authorized person (a public servant, as a rule), to mention only the most important ones.
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Considering, on the one hand, a number of projects for the unification of European law, adopted in last decades (Unidroit Principles, Principles of European Contract Law, European Code of Contracts, The Common Reference Framework etc.) and, on the other hand, a series of legal reasoning arguments, the author discusses at length some questionable terminology choices in the new Romanian Civil Code (Law no. 287/2009, published on July 24th, 2009, yet unenforced), for instance: invasion of right to privacy rather than breach of this right; no legal distinction sensed between duty and obligation, between damage and injury; between the object of the obligation and the contract’s subject matter; there are references to the object of the obligation instead of impossibility of provision etc. -
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. -
The paper presents the amendments to the Government Ordinance no. 2/ 2001 brought by Law. 76/2012 for implementing Law no. 134/2010 on the Code of Civil Procedure, the Contraventional procedure undergoing major changes with the entry into force of these regulations. Therefore, the steps of the judicial Contraventional procedure are briefly presented through the innovations introduced by the Code of Civil Procedure and, at the same time, the Contraventional law-related issues not yet regulated are analyzed, reiterating the proposal to develop a Contravention Code to regulate matters still confusing of the law material Contraventional and, especially, the ones contravention of the procedure Contraventional. -
This study analyzes briefly the new rules of the private international law of the European Union applicable to cross-border insolvency, contained in the Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) and applicable in their large majority starting with 26 June 2017. The study presents the legislative history of cross-border insolvency in the Union, the context of the adoption of Regulation (EU) 2015/848 and the objectives aimed thereby. Similarly, there are briefly presented the scope of application of the Regulation, the rules on international jurisdiction, the main and secondary insolvency proceedings, the law applicable to insolvency proceedings and their effects, the recognition of the judgment for opening the insolvency proceedings, the insolvency proceedings applicable to companies of the group and the insolvency registers.
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Selling land outside built-up areas has a specific regulation in Romanian law, often derogatory from the general provisions applicable in the field of selling goods, as regulated by the Romanian Civil Code. This specific regulation is comprised in Law No 17/2014 concerning some regulatory measures in case of selling agricultural land located outside the built-up area and for modifying the Law No 268/2001 on privatising commercial societies which administer state owned public and private property lands, destined for agricultural needs, act which suffered a series of important modifications by the Law No 175 from 14 th August 2020. This legal modification from 2020 implements a series of important legal changes related to the holders of pre-emption rights, but also concerning the specific modalities of selling agricultural lands located outside the built-up areas, when the holder of pre-emption rights does not want to buy. Also, in each case when the court is asked to give a decision which supersedes a selling contract, the petition is admissible only if the pre-contract is legally signed, according with the Civil code provisions and all other legal requirements are fulfilled, meaning: obtaining all necessary authorisations, respecting the pre-emption right, respecting the fiscal and land registration requirements. The law also clarifies how the pre-emption procedure works and how it is controlled by the state authorities.
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According to the latest’s international studies about economics in Latin America, a natural problem that have emerged it is the lack of finance oriented in two fronts: in first place, to the small and medium corporations, and in second place, to promote businesses devoted to the technological innovation. In that lines of ideas, for the last years have being accepted in the Chilean Congress several changes in the commercial law, destined to provide an adequate juridical structure to provide entrepreneurs to generate the evolution our markets require to enter a natural standard of growth, two politics in this direction were the creation of corporations of multiple guaranty, and stock divided corporations with limited responsibility, who are called as a concrete solution to this problems.
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Orice persoană poate solicita constatarea nulității absolute a unui act, dacă justifică un interes, or în cauza de față scopul urmărit de reclamant, prin constatarea nulității absolute a hotărârii comisiei județene de fond funciar, este acela de a include în sfera sa de administrare suprafața de teren menționată în actul a cărui anulare se solicită.
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The article addresses in a systematized manner some of the most important problems raised in the administrative practice and, implicitly, in the case law of the administrative disputes courts by the traditional triad concerning the cessation of producing of legal effects by the administrative acts, namely the nullity, revocation and inexistence. There are briefly reviewed aspects concerning terminology, doctrinal definitions, the relative nullity – absolute nullity distinction in the administrative law, the legality – opportunity correlation from the perspective of the control of administrative acts, the authorities competent to establish the nullity, revocation or inexistence of an administrative act. The complex issue of the legal effects of finding the nullity, the revocation or inexistence of administrative acts, but also of the repeal that can intervene only in case of normative administrative acts is examined by reference to some of the relevant solutions of the administrative case law. A newly raised issue, due to the incidence of the administrative law, briefly aims at the position of prosecutor of case or of judge in relation to an administrative act with incidence in a criminal case. -
Following the entry in force of the Civil Code (Law No.287/2009, republished) on the 1st of October 2011, which repealed the Family Code, the author conducts an extensive analysis of the legal provisions related to the nullity of a marriage, including the causes of nullity, legal regime, nullity consequences between the spouses and between spouses and their children, the competent court and the nullity resolution. This study examines the legal provisions of articles 293-306 of the Civil Code. -
The above study examines the issue of the articles of association and the nullity of the legal entity in the new Romanian Civil Code (adopted by the Parliament, published in the “Official Journal of Romania”, but not yet effective). In dealing with the above-mentioned issue, the author examines the nullity of a company’s articles of association (in Law no. 31/1990 on companies and in the new Civil Code), the effects of a company’s nullity, the legal entity’s nullity – in the current law and in the new Civil Code –, the effects of the legal entity’s nullity, as well as the European source of the legal entity regulation in the new Civil Code (Directive 2009/101/EC, a directive abrogating and replacing the Directive 68/151/EEC). -
The above study examines the issue of the articles of association and the nullity of the legal entity in the new Romanian Civil Code (adopted by the Parliament, published in the “Official Journal of Romania”, but not yet effective). In dealing with the above-mentioned issue, the author examines the nullity of a company’s articles of association (in Law no. 31/1990 on companies and in the new Civil Code), the effects of a company’s nullity, the legal entity’s nullity – in the current law and in the new Civil Code –, the effects of the legal entity’s nullity, as well as the European source of the legal entity regulation in the new Civil Code (Directive 2009/101/EC, a directive abrogating and replacing the Directive 68/151/EEC). -
For the appeal, which generates, in principle, a new judgment on the merits, given also the finality of exercising the appeal – the nullity of the judgment challenged – it is required another approach to the cases of nullity different than the traditional one in the matter of procedural acts. For the situation of referral of the case for retrial, it is required to argue that it is necessary to specify, in the judgment of referral, where appropriate, the part which is cancelled from the procedure followed by the court of first instance, respectively of the procedural act from which the retrial begins.
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The new Civil Code, unlike the old Code, includes a quasi-complete provision on the invalidity of the contract based on the fundamental distinction between absolute invalidity and relative invalidity. Invalidity - either absolute or relative - can be both complete and partial. Regardless of its form or the way it is established or in which it operates, partial invalidity may appear either as an explicit invalidity, therefore, in the form of clauses declared null or voidable or, more recently, either in the form of clauses deemed unwritten, or as tacit invalidity (obviously partial). In terms of terminology, the phrase or formula “clauses deemed unwritten” is an easy, therefore practical way to designate certain ancillary unlawful clauses which are automatically void. Ratione temporis, partial invalidity, regardless of its form, is and shall remain subject to the law in force at the date of conclusion of the contract and not to the law in force at the date the invalidity was determined or that when the contract was cancelled and neither subject to the law in force at the date the parties are reinstated to the previous status. -
Potrivit art. 335 alin. (1) C.pr.pen., dacă procurorul ierarhic superior celui care a dispus soluția constată, ulterior, că nu a existat împrejurarea pe care se întemeia clasarea, infirmă ordonanța și dispune redeschiderea urmăririi penale. Dispozițiile art. 317 se aplică în mod corespunzător. Conform art. 280 alin. (2) C.pr.pen., actele îndeplinite ulterior actului care a fost declarat nul sunt la rândul lor lovite de nulitate, atunci când există o legătură directă între acestea și actul declarat nul. Articolul 346 alin. (3) lit. a) C.pr.pen. prevede că judecătorul de cameră preliminară restituie cauza la parchet dacă rechizitoriul este neregulamentar întocmit, iar neregularitatea nu a fost remediată de procuror în termenul prevăzut la art. 345 alin. (3), dacă neregularitatea atrage imposibilitatea stabilirii obiectului sau limitelor judecății (cu notă aprobativă).
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The conditions of appointment of the General Prosecutor and of his deputies have been one of the most disputed topics in the matter of regulation of the status of the Public Ministry. Wishing to give the parties concerned the opportunity to clarify the problem the authors have elaborated a summarizing study on the regulation of this matter in the Member States of the European Union. -
The criminal trial is a complex judicial activity through which it is performed the criminal justice, formed of a complex of judicial activities carried out in an orderly and successive manner. In its entire development, the criminal trial is a complex judicial activity. In the dynamism of its development, the criminal trial is a complex of judicial activities. The regulation of the criminal trial includes the provisions of the general part of the Criminal Procedure Code, as well as the provisions of its special part. The general provisions regulate the criminal trial in all cases and they discipline the entire judicial activity. The special provisions regulate the criminal trial in each case in particular and they discipline each judicial activity in particular. The special provisions are interpreted literally and restrictively, systematically, logically and teleologically, in order to be correctly applied.
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In terms of the decision not to initiate criminal proceedings, ordered by the Prosecutor during the stage of preliminary documents, it is mandatory to communicate the decision to the prejudiced person, indicter and perpetrator, if known, and the deadline of 20 days for filing the complaint with the Prosecutor’s Office runs from the date of serving the decision. For the people who consider themselves injured as to their legitimate interests by the adoption of the decision not to initiate court proceedings, there is neither the obligation, nor the opportunity for the communication thereof and, in this case, the 20-day deadline for filing the complaint against the decision runs from the date on which the person entitled was informed, in any way, about the adoption of the decision in question. -
In this article, the author discusses the issue of limitation of the exercise of certain rights and freedoms, as debated and regulated by the Constituent Assembly in 1991. There are analyzed in detail the theses for the draft Constitution that set out the constitutional conditions for which compliance is imperative, so that the Romanian State and the Romanian Parliament be able to make the decision of limiting some rights or freedoms of the citizens. The author gives a significant consideration to presenting the philosophy of the constitutional norm that recognizes the State’s right to limit under certain circumstances the exercise of some fundamental rights and freedoms of the Romanian citizens. It is noted that constitutional limitation of the some rights or freedoms of the citizens fully complies with the European doctrine of constitutional law and of the judicial practice of ECHR. The author analyzes in detail every case which may determine the Parliament to limit the exercise of some rights and freedoms, as well as the conditions for imposing the limitation. -
Se știe că, în materie represivă, prescripția produce un îndoit efect, acel de a stinge acțiunea publică și cea civilă, care izvorăște dintr’o crimă, delict sau contravenție polițienească (art. 593–595 C.pr.pen.), și acel de a stinge pedeapsa pronunțată de tribunalele represive art. (596–598 C.pr.pen.). Pentru a se justifica aceste dispoziții s’au dat mai multe motive, asupra căror vom reveni mai târziu tot în coloanele acestui ziar, când vom expune considerațiile generale asupra prescripției penale. Destul este să spunem deocamdată că motivul cel mai puternic și poate singurul motiv ce se poate invoca în specie este că societatea nu are nici un interes a pedepsi o infracțiune a cărei amintire este ștearsă. Legea penală nu vorbește de suspendarea prescripției, ci numai de întreruperea ei. Actele întreruptive consistă, când este vorba de prescrierea acțiunei publice, în acte de instrucțiune și de urmărire (art. 593 C.pr.pen.). Vom vederea îndată care sunt actele întreruptive de prescripție când este vorba de prescrierea executărei pedepselor. -
This article aims to examine Article 16 of the Labour Code, republished, on the requirement of drafting individual employment agreement in Romanian language, from various standpoints, such as: (i) applicable sanction for failure to conclude the individual employment agreement in Romanian language; (ii) the requirement to observe the principle of equal treatment in cases where the individual employment agreement is concluded with a foreign citizen or a national of another Member State of the European Union or the European Economic Area, concretized, inter alia, by drafting the individual employment agreement in the language of the foreign citizen; (iii) the probative value of the versions of the individual employment agreement concluded in several languages.
