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Transmiterea actului administrativ sancționator prin fax îndeplinește, în principiu, rigorile procedurale referitoare la comunicare, aceasta putând fi circumscrisã modalitãții la care se referã art. 86 alin. (3) teza finalã din Codul de procedurã civilã: „alte mijloace ce asigurã transmiterea textului actului și confirmarea primirii acestuia”. -
The author of this study proposes a theme as original as it is actual: the environmental criminology. This subject – as the author points out – is still at the stage of structuring the object and searching its own path of asserting. Included in the specialization trend at the criminology scientific-academic, strategic and intervention level, it is considered a “special criminology” alongside with the social, demographic, cross-cultural criminology, and other types of criminology whose object of study and research are the relationships between the environmental conditions and antisocial behavior in general, and the criminal offense in particular. Both the approach of schools (e.g., the Chicago School) and currents underpinning the creation of environmental criminology from a diachronic perspective of the subject, and the approach of the differences between the concept of environmental criminology and other related concepts raise reader’s interest.
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The study focuses on the analysis of the norms that regulate the subjects and the object of the protection of the topographies of the semiconductor products from the perspective of the Law no. 16/1995 with the further modifications and of the respective regulations from the Civil Code (Law no. 287/2009). The author reveals some aspects that were incoherently or ambiguously regulated as regards the approached topic and highlights the absence from the content of the special law (Law no. 16/1995) of some provisions misplaced in the Norms of application of this law. At the same time, in order to avoid the confusions in the analyzed case, the author formulates de lege ferenda proposals, in the view of eliminating the identified legislative imperfections.
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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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Based on the “judges dialogue” concept (institutionalized communication between the judges of various courts and levels of jurisdiction), the above study authors extrapolate this concept by mainly analyzing the forms of this “dialogue” between the 18 existing Constitutional Courts from as many countries of the 28 European Union Member States.
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The study deals with the directions of the very probable, and at the same time, the possible review of the Constitutional Court. The starting point in this analysis is to identify the Romanian specific in the control of constitutionality of the period before and after the Revolution of December 1989, compared to models offered by other member countries of the European Union. The review of criticisms that have been made ”to the Constitutional Court and the solution chosen by the Constituent Assembly of 1991 will lead in the final part of the study to the drafting of the possible solutions to be considered by the future constitutional review to make the constitutional justice in Romania more legitimate and more effective.
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Along with punishments and educational measures, safety measures are part of the broad criminal sanctions category; however, the latter have a mostly preventive purpose, which is to prevent committing new crimes or other offenses provided by the criminal law. Special confiscation is a safety measure whose legal content is patrimonial, as it concerns certain assets related either to the committed deed or to the offender and which, if further left within the factual and legal circuit, could be used to commit new offenses provided by the criminal law. The mainly preventive aim of the special confiscation safety measure is achieved by the fact that, under the conditions and within the limits prescribed by law, property shall pass free of charge into State ownership so that any person may no longer possess or use them to commit other offenses provided by the criminal law.
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The purpose of this article is to assess the crime of violation of the secret of correspondence from the perspective of the New Penal Code of Romania. While taking into consideration the guidelines emerging from the jurisprudence of the European Court of Human Rights, the author separately analyses the constituent elements of this crime, emphasizing on certain issues generated by the case records of the Romanian courts of law. De lege ferenda proposals are also advanced for the purpose of emendating the system of penal protection of a person’s right to freedom of communication.
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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.
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The legislator regulates the “Summoning and service of the procedural documents” in Articles 153-173 of Title IV of IInd Book of the Code of Civil Procedure, texts which largely take over the provisions of the 1865 Code concerning this procedure and, at the same time, establish some new solutions aimed at streamlining the procedure at issue and to adapt it to the new realities. In this study, the foregoing are examined in detail.
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Given the overwhelming importance of the family home in family economic relationships, the Civil Code authors found it necessary to establish, as an absolute novelty, a special legal regime for various legal acts of the spouses in relation to this house and furnishing or garnishing property thereof. Also, the Civil Code provides a regulation derogating from the common law regarding the rights of spouses on the rented house and in connection with the award of the lease benefit and joint ownership of the house in case of divorce. The new regulations are designed to eliminate, mainly, the causes for various doctrinal interpretations and non-unitary jurisprudential solutions generated by the ambiguities and gaps of previous legislation in the matter.
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Recent legislative interventions have brought important innovations on mediation, and one of them has promoted the sanction of dismissing the claim as inadmissible in case of claimant’s failure to observe the obligation to participate in the briefing on the advantages of mediation. The author determines the conditions for applying this procedural sanction, which he considers extremely severe and even excessive. Inadmissibility for not participating in the briefing is being also examined in the light of the provisions of art. 21 of the Romanian Constitution, regarding the free access to justice and the provisions of art. 6 of the (European) Convention on Human Rights and Fundamental Freedoms. Secondly, the author notes that the sanction of inadmissibility applies only to the claimant. He believes, however, that the respondent may be subject to a judicial fine should he/she fail to appear in the briefing, according to Art. 187 item 1 letter f) of the new (Romanian) Code of Civil Procedure entered into force on February 15, 2013.
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1. ALEXE, IRINA – Aspecte privind mobilitatea înalților funcționari publici reflectate de jurisprudenþa instanțelor din România, în „Revista de drept public” nr. 1-2/2012, p. 90-102. Autoarea, în urma analizei reglementãrilor în vigoare și a jurisprudenței în domeniu, face urmãtoarea propunere de lege ferenda: se apreciazã ca fiind judicioasã introducerea formulãrii “principiul mobilitãții”, cu consecințele de rigoare, în primul rând aceea de a stabili un cadru programat întemeiat pe criterii clare și coerente în aplicarea principiului mobilitãții. -
Drept penal și procesual penal CERERE PRIVIND SESIZAREA CURȚII DE JUSTIȚIE A UNIUNII EUROPENE PENTRU PRONUNȚAREA UNEI HOTÃRÂRI PRELIMINARE. INADMISIBILITATE. În conformitate cu dispozițiile art. 267 paragr. 1 lit. a) si b) din Tratatul privind funcționarea Uniunii Europene, Curtea de Justiție a Uniunii Europene este competentã sã se pronunþe, cu titlu preliminar, cu privire la: a) interpretarea tratatelor și b) validitatea și interpretarea actelor adoptate de instituțiile, organele, oficiile sau agențiile Uniunii. Prin urmare, cererea privind sesizarea Curții de Justiție a Uniunii Europene pentru pronunțarea unei hotãrâri preliminare, referitoare la interpretarea unui act al Consiliului Europei, cum este Convenția penalã privind corupþia, adoptatã la Strasbourg la 27 ianuarie 1999, iar nu a unui tratat al Uniunii Europene sau act al instituțiilor, organelor, oficiilor sau agențiilor Uniunii Europene, este inadmisibilã.
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1. Achitare nelegalã. Gradul de pericol social al unei infracțiuni. În cazul în care legea prevede, în mod expres, cã o anumitã faptã prezintã pericolul social specific unei infracțiuni, în orice condiții de comitere, instanța nu poate pronunța o soluție de achitare și de aplicare a unei sancțiuni cu caracter administrativ.
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International treaties on human rights are, in relation to the common law, the most important human rights source of international law. In terms of geography, the international treaties under the cited matter are divided into treaties with universal vocation (UN system) and regional international treaties (European regional level, Inter-American, African and so on). In this study, the author refers to the specificity of the conventional sources within the Inter-American and African system, the Arab and Islamic world and within the CIS area.
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In this article, the author examines the crime of treason by giving aid to the enemy both in terms of the current Criminal Code and in light of the new Criminal Code, pointing out, where appropriate, the main similarities and differences between the two regulations.
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In this study, the author presents first the main reasons that led to the development of the 2009 Criminal Code and the objectives pursued by its wording. Subsequently, the author presents the main novelties brought by the regulations contained in the General Part and the Special Part of the new Criminal Code. Presentation of the characteristic features and innovations introduced by the 2009 Criminal Code compared to the Criminal Code of 1969 is achieved whilst revealing both the merits and some shortcomings of the new criminal law. These explanations are accompanied by numerous examples, own ideas and suggestions to improve the texts analyzed. In a final section, the author presents, in a reasoned manner, his own conclusions drawn in relation to the study of the new Criminal Code.
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In this study, the author, whilst analyzing the legal nature of Child Protection Commissions (which are organized and operate pursuant to Law No. 272/2004 on the protection and promotion of children’s rights and the Government Decision no. 1437/2004 on the organization methodology and functioning of the Child Protection Commission), concludes that the decisions taken by such committees are not special administrative jurisdiction acts, but simply unilateral administrative acts that are adopted by a specialized body within the county council or the local council of Bucharest sectors, as appropriate. As regards attacking / challenging these decisions in court, usually, the settlement power falls on the common law courts, and not on the administrative ones.
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What seems relevant to this study highlight is the current trend of Europeanization guarantees the right to a fair trial in civil matters established by art. 6, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms and relativization constitutional provisions to guarantee this right, from the perspective of European Court of Human Rights. With this approach, the study proposed open a complex and complete vision, but not exhaustive approach guarantees within the current right to a fair trial in civil matters. Following an outline Key – are analyzed successively three major parts of the study, namely, 1. Identification of universal standards and regulations contained in the European human rights and, of Romanian constitutional and legal regulations on the right to a fair trial in civil matters. 2. Doctrinal guidelines on the requirements of the right to a fair trial in civil matters. 3. Jurisprudential guidelines on the requirements of the right to a fair trial in civil matters.
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Legislative changes occurring in recent years in terms of the legal nature of the public procurement contracts were subject to doctrinal debate and generated disputed solutions in the judicial practice. We refer to the definition of public procurement contract as a Commercial Agreement, under Law no. 278/2010 which has amended and supplemented the Government Emergency Ordinance no. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services concession contracts, approved with amendments and supplements by Law No. 337/2006, as subsequently amended and completed. This legislative approach has shown legislator’s inconsistency in the matter, considering that by organic law - the Law of the contentious administrative No. 554/2004 – public procurement contracts are expressly defined as administrative contracts. At the end of July 2012, the National Authority for Regulating and Monitoring Public Procurement has published a draft emergency ordinance designed to bring new amendments and supplements to the Government Emergency Ordinance No. 34/2006. These proposals were successively amended by the issuer, the final form been approved through the Government Emergency Ordinance No. 77/2012. From the point of view of this study, the legislative changes contained in the Government Emergency Ordinance No. 77/2012 regarding the legal nature of the public procurement contracts and, consequently, the courts competent to hear disputes under these contracts are remarkable.
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In this study, the author makes an analysis on art. 45 to 46 of the Romanian Labor Code (Law no. 53/2003, republished on 18 May 2011) on the legal institution of posting. In this respect, the paper examines a number of controversies of the legal literature in this matter, after which the author, motivated, exposes his own opinion.
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Currently, the law governing the criminal clause institution are laid down in Articles 1538 to 1543 of the new Civil Code. What holds the special interest of the legal literature, and, in particular, that of practitioners, is the court’s possibility to reduce the criminal clause where the principal obligation has been executed by the debtor (creditor’s advantage) and where the penalty is clearly excessive in relation to the damage that could have been set out by the parties upon the contract conclusion. This study presents the legal, doctrinal and jurisprudential evolution of criminal clause reducibility.
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In this article, the author examines the provisions of the new Criminal Code relating to the definition of railway accident, achieving a comparative examination of the current provisions. This paper is a continuation of other research in this area conducted by the author, activities which have resulted in the publication of a monograph and several articles in professional journals. Research results consist of a comparative examination of current and new provisions within the above-mentioned scope, and critical remarks. Research may be useful to theorists and practitioners in the field, especially the legislator, where the latter considers necessary to amend and supplement the definition of railway accidents. The major contribution of the article lies in author’s critical remarks, the de lege ferenda proposals concerning the definition of railway accidents, and in the need to provide another aggravated variant of offenses against railway traffic safety.
