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This study deals with the issue of forced distinctiveness, a legal mechanism that is essential for the matter of the trade mark law, but which is not generally thoroughly treated in the Romanian specialized literature, despite the rich case law it generates. Forced distinctiveness refers to the situation in which a sign that is likely to be represented graphically, but which initially lacks a distinctive nature, acquires distinctiveness following its use. Throughout the study, the author examines the legal nature of forced distinctiveness, from the point of view of the Romanian legislation and the European regulations, with references to the essential case law in this matter. Thus, in the first part, the author reviews the signs likely to acquire distinctiveness by use and in the second part, he examines the conditions of forced distinctiveness, as well as the criteria on which the assessment of the competent authority is based. -
Preliminarily, the above study states the classification of interest in the Romanian Civil Law, according to the criterion of interest cause or in relation to the interest rate function. Further, the author reviews in detail - by comparing one to the other, as well - the moratory interest and the compensatory interest in the Romanian Civil Law (both the current Civil Code and the new Romanian Civil Code, published on July 24th, 2007, yet unenforced). -
Pursuant to the entry into force of the Civil Code (Law no. 287/2009, republished) on October 1, 2011, which repealed the Family Code, has also duly amended Law no. 119/1996 on Civil status documents, republished, and also the entry into force of Law no. 134/2010 on the Code of Civil Procedure, republished, the author examines in this study the legal provisions relating to dissolution of marriage by divorce through court proceedings, making several references to the courts ? recent relevant case law. Thus, this study examines the legal provisions regulated by Articles 373-374 and Articles 379-381 of the Civil Code and Articles 914-934 of the new Code of Civil Procedure. -
After the entry into force of the Civil Code (Law No. 287/2009 republished) on October 1st, 2011, which repealed the Family Code, and the corresponding amendment of Law No. 119/1996 concerning civil status acts, republished, the author examines in this study the legal provisions relating to the dissolution of marriage through divorce by administrative and notary procedure governed by Articles 375-378 of the new Romanian Civil Code. -
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The aim of this paper is to identify how and if cultural diversity, as a fundamental and moral value of the EU, is effectively protected by EU law. I will start from the EU competences on cultural matters and try to find out if, while dealing with cultural issues, the EU is actually protecting its “unity without uniformity” and its “diversity without fragmentation”. The recent and stronger intervention of the EU in cultural matters, after Lisbon, raises questions as to its real aims, be it the building of a stronger and stronger “small common denominator” in cultural issues as well, by means of uniformity or the real protection of cultural diversity of its Member States. -
The refund of the judicial stamp duty, as a result of the admission in whole or in part of an enforcement appeal, is a matter that has generated a non-unitary judicial practice. In this study, the author aims to analyze the way in which the national courts have interpreted and applied the rules governing the appellant’s right to recover the judicial stamp duty, as well as to identify legal solutions in relation to the various hypotheses presented. -
Potrivit art. 275 alin. (1) C.pen., sustragerea, distrugerea, reținerea, ascunderea ori alterarea de mijloace materiale de probă sau de înscrisuri, în scopul de a împiedica aflarea adevărului într-o procedură judiciară, se pedepsește cu închisoarea de la 6 luni la 5 ani. Conform art. 198 alin. (1) C.pr.pen., înscrisurile pot servi ca mijloace de probă, dacă, din conținutul lor, rezultă fapte sau împrejurări de natură să contribuie la aflarea adevărului. (cu notă aprobativă). Infracțiunea de sustragere sau distrugere de probe ori de înscrisuri, prevăzută în art. 275 alin. (1) C.pen., are ca situație premisă existența unei proceduri judiciare începute. În ceea ce privește calitatea de subiect activ, autorul faptei prevăzute de legea penală ce face obiectul procesului penal în care sunt folosite înscrisurile ori mijloacele materiale de probă poate fi subiect activ al infracțiunii de sustragere sau distrugere de probe ori de înscrisuri în modalitatea prevăzută în art. 275 alin. (1) C.pen. (Înalta Curte de Casație și Justiție, Completul pentru dezlegarea unor chestiuni de drept în materie penală, Decizia nr. 3 din 20 ianuarie 2021 publicată în Monitorul Oficial al României, Partea I, nr. 396 din 15 aprilie 2021)
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The emergence of Decree-Law no. 24/1990 led to conflicting interpretations on the period of application, with no specific provisions in this respect. This prompted the article’s author to appeal to the general principles of criminal law in interpreting the law hereby.
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The failure to fulfill the periodical financial or fiscal obligation consisting in source withdrawal taxes or contributions was qualified in time by certain authors, as a continued crime, and by others, as a successive continuous crime. Choosing the last version, the author of this study identified several criteria for making a distinction between the two forms of crime. -
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Atunci când se instituie măsuri asigurătorii în procesul penal nu este necesar să se indice sau să se dovedească ori să se individualizeze bunurile asupra cărora se înființează măsura asiguratorie. (Înalta Curte de Casație și Justiție, Completul pentru dezlegarea unor chestiuni de drept, Decizia nr. 19/2017 – cu notă critică)
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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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În arhitectura reformei judiciare legislative în materie penală, data de 1 februarie 2014 este marcată de intrarea în vigoare a Codului penal și a Codului de procedură penală, care prin noile dispoziții conferă o nouă filosofie multor instituții de drept substanțial și procedural penal. Această concluzie este susținută de expunerile de motive la cele două coduri, care în mod concret explică intenția legiuitorului de a reglementa instituțiile modificate sau nou introduse, realizându-se un proces de armonizare atât cu legislația, cât și cu jurisprudența internațională și europeană. -
Potrivit art. XXIV alin. (1) din Legea nr. 202/2010, numai hotãrârile pronunțate înainte de data intrãrii în vigoare a acestei legi rãmân supuse cãilor de atac, motivelor și termenelor prevãzute de legea sub care a început procesul; prin urmare, hotãrârile pronunțate ulterior intrãrii în vigoare a Legii nr. 202/2010 sunt supuse cãilor de atac, motivelor și termenelor prevãzute de dispozițiile Codului de procedurã penalã, astfel cum au fost modificate prin aceastã lege. Conform alin. (2) al aceluiași articol, „Procesele în curs de judecatã la data schimbãrii competenței instanțelor legal învestite vor continua sã fie judecate de acele instanțe, dispozițiile referitoare la competența instanțelor din Codul de procedurã penalã, republicat, cu modificãrile si completãrile ulterioare, precum și cu cele aduse prin prezenta lege, aplicându-se numai cauzelor cu care instanțele au fost sesizate dupã intrarea în vigoare a prezentei legi”. -
This study aims to identify ways to reflect in the special law (Law no. 72/ 2013) some genuine civil law guiding ideas, lato sensu, and some principles applicable to the relationships between professionals, but also the extent to which the application of these principles to the cases envisaged by the legislator in the special regulation referred contributes to the purpose of the law concerned. -
The meanings of the principle of proportionality are identified in the case law and in the legal doctrine during the modern and contemporary period, emphasizing the idea of continuity in understanding this principle. The main connotations of this principle, found in the doctrine, are expressed by the ideas of fairness, balance, adequate ratio, reasonableness, equity, but also in logical plan, by the dialectic reasoning of proportionality. The analysis of case law and of doctrine reveals the importance of this principle, whose purpose is to materialize the legal standard, to substantiate the concept of legitimacy in law and to serve as a key criterion that allows the demarcation between the legitimate manifestations of the state power and, on the other hand, the excess of power in the activity of the state authorities. The only regulations of the Romanian Constitution which specifically refer to the principle of proportionality are included in Article 53, with the marginal title „Restriction of the exercise of some rights and freedoms”. In this study, by using different ways of legal interpretation, we also identify other constitutional rules which involve this principle. -
The proposed study is a systematic and systemic analysis of the rules of the Civil Code established for the „possession of status”. While reviving and modernizing the archaic regulations of the Romanian Civil Code of 1864, the present Civil Code establishes the meaning and the content of possession of status, as well as its effects where it is consistent with the data written down in the birth certificate concerning the filiation of the child to the mother. In this context, it is also pointed out the existence of some issues which require normative correlations (even among some paragraphs or sentences within the same article), legal and logical improvements and compatibility adjustments with the general principles of law. -
Reflections on the moral and legal status of the animal, its cognitive abilities, its differences, essential or not, with humans, have nourished human thinking since ancient times; source of debate also today are a lot of questions: can we kill animals, we can eat them, we can use them in our activity, both in the field and in laboratories, do animals have rights, are they subjects of law? Ever since Roman law, the animal was considered from legal point of view, considering only the faculty of man’s appropriation as a subject of law; the main status of animal remains that of reification, their interests being most often ignored for the benefit of humans’ interests. This status embraced by doctrine, praised legally throughout the different civilizations and which has lasted until today, could be maintained by virtue of the „natural” power of human domination exercised over the rest of living beings also through the Cartesian animal–machine theory, which was translated into law by the animal–thing theory.
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In this study there are analyzed the categories of administrative acts on which there were controversies about the exercise of judicial control of these acts by means of a plea of illegality regulated by Article 4 of the Law on administrative disputed claims No 554/2004, especially prior to the amendment and supplementation of this legal text by the Law No 76/2012 for the implementation of the new Civil Procedure Code. Likewise, it is emphasized the concern of the legislator to settle the doctrinal and jurisprudential controversies concerning the scope of the object covered by this plea, by the amendments and supplements brought by this latter normative act, but, nevertheless, it is not out of the question that some of these controversies will also continue in the new legislative context, until a stable case law in the matter is formed. -
Over the past two years, following the amendment of the Labor Code by Law no. 40/2011, the passing of Law no. 62/2011 on social dialogue, as well as the New Civil Code of Procedure (Law no. 134/2010, which entered into force on February 15, 2013), successively amended (before its entry into force) significantly by Law no. 76/2012 for the implementation of the new Code of Civil Procedure (Law which, in turn, was amended by the Government Emergency Ordinances no. 44/2012 and no. 4/2013, and by Law no. 2/2013) and, finally, through the amendments brought by Law no. 192/2006 on mediation and organizing the mediation profession through the Government Emergency Ordinance no. 90/ 2012, and by Law no. 115/2012, (relatively large) changes in the settlement of labor disputes and labor jurisdiction matters have occurred. In this study, the authors examine the impact of such changes in the said areas.
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In this study, the author shows that, if a person violates the precept of criminal legal norms, he or she will be liable to prosecution for embracement of that behavior. Criminal responsibility includes offender’s obligation to abide and to serve his or her sentence, and also the State’s correlative right to impose such a sanction as a result of an offense and to impose upon the offender the execution of that sanction. In modern criminal law, criminal liability can be incurred only as a result of an offense and only if the offender has the ability to be held criminally responsible. Classical school of criminal law has converted the subjective criminal liability based on guilt into a principle: without guilt there is no crime, and without crime there is no criminal liability. Such being, the author raises the following question: how might we reconcile these assertions with the objective criminal liability issue which incurs only based on the causality relation between the offense and the result, irrespective of the mental position of the perpetrator? This study represents a journey onto a “hag” of the criminal law in which the foundation of objective criminal liability is addressed through the common-law doctrine, also assessing the pros and cons of maintaining such an institution in some Continental Law systems that accept it. Furthermore, the author has tried sketching a picture of the institution of objective criminal liability in terms of comparative law (English and Italian criminal law), indicating the objective criminal responsibility forms as they were identified by different common-law authors. Last but not least, she aimed to identify the residual forms of the objective criminal liability under the Romanian criminal law, and the prospect of maintaining this form of criminal liability in the Continental Criminal Law.
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The author, addressing the examination of important issues regarding the regulation of the right of public property in the new Civil Code (adopted by the Parliament, published on 24 July 2009, but not yet in force), makes a comparative analysis of the regulations in this field (quasi-inexistent in the current Civil Code since the year 1865) recorded in the Constitution of Romania (republished in October 2003) and in Law no. 213/1998 regarding public property and its legal system. In the end, the author makes several proposals regarding this latter law (after the new Romanian Civil Code – Law no. 287/2009 – becomes effective).
