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Within this study the author presents us some essential points of reference regarding the present situation of the legal education and its prospects for recovery. The author’s approach starts from the finding that education at all levels is in a period of crisis, despite the legal framework developed over the last years and materialized, mainly, in a new national education law. The explanations of the crisis in our legal education are multiple, the author making special reference to the unjustified proliferation of the private legal education and to the existence of a disproportionate relation between the public and private faculties of law. A particular importance is also given within this study to the teaching staff of the university education. The author pleads, in essence, for the financing of the education institutions in relation to the performances achieved, for setting some high standards of promotion of the teaching staff within the legal education and for a more exigent regulation of the incompatibilities and of the conflicts of interest. -
The paper aims to emphasize the consequences of the Judgment Costanzo pronounced by the Court of Justice in 1989 on the competences and powers of the public administration authorities, when these authorities are acting within the scope of application of the European Union law. From the perspective of the persons of private law directly concerned, the paper makes available to them the manner in which they can invoke the Union law – as a right opposable against the national administrative authorities – without requiring the intervention of the courts to obtain the removal from the application of the measures of national law contrary thereto. -
This scientific approach debates and proposes solutions for a problem of judicial practice also reflected in the doctrine of speciality, namely whether it subsists the offence of tax evasion provided in Article 9 (1) b) or c) of the Law No 241/2005, whose active subject is a legal person, in case of absence of the accounting records of the taxpayer. The author’s certain conclusion is based on arguments related to the legal text and which the practice has embraced as a corollary, and he proposes a solution in the sense that the judicial bodies may analyse that all the constituent elements of the reference offence are present even in the absence of the documents of accounting records. Likewise, the article also deals tangentially with a possible problem related to the constitutionality of a legal phrase that is part of the constituent elements of the offence of tax evasion and criticizes the redundant and incoherent phrasing of the legislator.
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Within this article the author presents the main opinions which were expressed in the literature of speciality on the matter of deviated offence. This reveals that there is no unitary point of view referring to this institution, three opinions being expressed in the matter. According to a first opinion it is deemed that the deviated offence concerns an apparent plurality of offences (natural unity), whether we refer to error in personam/error in objecto or to aberratio ictus. According to a second opinion, in case of deviated offence, regardless of the form it takes, there is a real plurality of offences, in the form of concurrence of offences. There is also a third opinion that, in the case of error in personam/error in objecto, it should be noted the existence of a single offence, while in case of aberratio ictus it should be noted the concurrence of offences. The judicial practice in Romania, in order to avoid any problems that might occur, has opted to note the perpetration of a single offence, both in case of error in personam and in case of aberratio ictus.
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The study intends to provide an overview of a recently established public institution, namely the National Agency for the Administration of Seized Assets. Its establishment was an objective included in the National Anti-corruption Strategy for 2012–2015, approved by the Government Decision No 215/2012. The analysis will focus on aspects concerning its general status, structure, personnel and it will be made from a critical perspective on some legal provisions inclusively. In this way, we will try to draw attention to some deficiencies of the regulation, by proposing solutions which hopefully will be considered in the future.
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The disciplinary misconduct related to the „non-compliance with the duty to abstain when the judge or the public prosecutor knows of the existence of one of the causes provided by law for his abstention, as well as the filing of repeated and unjustified applications of abstention in the same case, which has the effect of delaying the judgment”, regulated by Article 99 i) of the Law No 303/2004 on the by-law of judges and public prosecutors, was introduced by the Law No 24/2012 amending and supplementing the Law No 303/2004 on the by-law of judges and public prosecutors and the Law No 317/2004 on the Superior Council of Magistrature; it could not be found in the original version of the Law No 303/2004, nor in the Law No 92/1992 on judicial organization. The material element of the objective side of the disciplinary misconduct regulated by Article 99 i) of the Law No 303/2004 includes two distinct hypotheses: the first hypothesis has as object the non-compliance with the duty to abstain when the judge or the public prosecutor knows of the existence of one of the causes provided by law for his abstention, and the second relates to the filing of repeated and unjustified applications of abstention in the same case, which has the effect of delaying the judgment.
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Important matters of law generate the verification of the legality of the acts of the legal persons of private law specified in the title. Such verification, as revealed by the judicial practice in this matter, involves the relation of the theory concerning the legal acts within the scope of public law to the corresponding theory within the private law. This interdisciplinary approach is necessary in order to correctly identify the conditions of validity related to the legal acts qualified as being acts of authority, given their nature, purpose and addressees.
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The new Fiscal Code and the new Fiscal Procedure Code harmonized with the European Union legislation have brought significant mutations in the development of the relations of fiscal law and of fiscal processual law between the public tax authorities and the taxpayers/payers. These relations of fiscal law and of processual fiscal law have as their primary foundation the fiscal administrative act, which underlies the entire edifice of the fiscal matter. Starting from these desiderata, this study aims at analyzing several aspects regarding the implications which the new regulatory framework in fiscal matters has brought in the field of adoption of some fiscal administrative acts, emphasizing, at the same time, the distinction which must be made between the fiscal administrative acts and the administrative acts whereby budgetary claims are individualized.
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Declanșarea și judecarea unui proces atrag per se o serie de cheltuieli bănești care se materializează în taxele judiciare, onorariile avocaților, experților și ale altor specialiști, ori în sume de bani cuvenite martorilor chemați să răspundă în fața judecătorului, pe lângă multe alte inconveniente. Dacă sarcina înfăptuirii justiției aparține statului, principiu recunoscut în majoritatea sistemelor democratice, se pune problema sarcinii suportării cheltuielilor pe care le presupune judecarea unui litigiu. S-a ajuns astfel la „compromisul” prin care cheltuielile de judecată să fie împărțite, aproximativ proporțional, între stat și părțile litigante. Culpa procesuală este izvorul cheltuielilor de judecată, partea îndreptățită la acordarea acestora este partea litigantă, potrivnică celei care cade în pretenții și, pe cale de consecință, cea care a fost în culpă procesuală, prima fiind „victima” celei de-a doua. Ab initio trebuie precizat că stabilirea cheltuielilor de judecată va fi făcută de instanță numai în măsura în care acestea au fost solicitate în cursul procesului pendinte, faptul că instanța nu le-a acordat reprezentând o omisiune a acesteia, care poate fi îndreptată pe calea unei cereri de completare a hotărârii, dacă partea are deschisă această procedură. Probleme s-au ivit în legătură cu actualizarea cheltuielilor de judecată în faza de executare silită, când executorul judecătoresc proceda la punerea în executare a hotărârii judecătorești. Astfel, s-a născut întrebarea „Poate executorul judecătoresc să actualizeze sumele cuvenite creditorului cu titlu de cheltuieli judecătorești?” Înalta Curte de Casație și Justiție a limpezit problema de drept ridicată și a statuat că sumele acordate printr-o hotărâre judecătorească pot fi actualizate în funcție de rata inflației, de executorul judecătoresc în etapa executării silite (cu notă aprobativă). -
In a traffic accident resulting in numerous injuries there have been drawn up several forensic documents, the time limit for medical care being extended to 100 days because of the emergence of some post-operative complications. After numerous postponements and after the reinstatement of the case on the list of cases twice, the court requested that the acts be approved by the Superior Forensic Commission next to the National Institute of Forensic Medicine, although there were no contradictions between them. This body has decided that there is no causal relation between the accident and the extension of the number of days of medical care, invoking medical negligence and the failure of the injured person to go through the entire recovery treatment. Based on this advisory opinion the court has ordered the acquittal, ignoring the other evidence, without giving reasons. According to the author, the solution of the court is ungrounded and unlawful.
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The offences provided by the Law No 31/1990 on companies form a domain relatively little explored by the criminal law specialists and quasi-unexplored by the civil law specialists. This study deals with the two offences grouped within Article 2721. These offences have a few specific elements. First, the active subject in the legal rule hypothesis is qualified, namely a person that holds a certain quality of company member. Secondly, for two of the offences, the hypothesis of criminal rule must be supplemented by the rules of company law regulating the issue of company securities. By the fact that the hypotheses of the other offences regulated in Article 2721 are part of the company law, first it is the duty of the civil law specialist to decode the meaning of the material rule, because a rigid application of the purely criminal vision in a field of the private law can lead to wrong conclusions, with serious consequences on the subjects of the offences. But, in order to cover the entire interpretative area, the same consideration must be given to the criminal aspects as well, where the role of the criminal law specialist steps in, so that the reader – either a civil law specialist or a criminal law specialist – forms a proper idea about a far too little investigated field.
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In this case study, the authors analyze a less common situation in the judicial practice, namely the one of the confirmation of the judicial administrator, in so far as the judicial control court admits the appeal of the creditor that had requested by means of an application for summons the appointment of another insolvency practitioner. The institution of judicial control finds its legal basis in Article 129 of the Basic Law, according to which against the judgments, the parties concerned and the Public Ministry may exercise the legal remedies, under the terms of the law. The provisions of Article 501 of the new Civil Procedure Code give efficiency to the above-indicated constitutional text, given that, without the binding nature of the judgments pronounced by the judicial control court, the purpose of control and, finally, the well-grounded and legal settlement of the cases would not be achieved.
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In this article the author aims to analyze, from a constitutional point of view, the content of Article 24 of the Basic Law. The right to defence is a universal right enshrined in the most important international documents that have guaranteed, after the end of the Second World War, the suite of human rights and freedoms inherent and essential to human dignity. There would be no right to defence if there wasn’t a corollary right, the right for everyone to go to court, asking for justice when another person has violated their legitimate rights and interests. The society, the State has the same indictment right when a person violates the social values protected by a criminal law. In addition to the traditional justification for the regulation and protection by the State of the right to defence, its guarantee in a democratic society is also a requirement to respect a fair trial, in which the parties (plaintiff and defendant) must enjoy equal conditions for supporting their claims or defence. In other words, every accused person is entitled to defend itself and prove to the judge the inconsistency of the accusing evidence against him.
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The judicial practice, including that of the Supreme Court, reveals difficulties in applying the sanction of nullity, in particular in case of virtual nullities. In this context, the author shows that it is necessary an applied analysis of the theory of nullity, in order to establish a staging of the judicial approach undertaken for applying this sanction. An interdisciplinary approach for the purpose of establishing the role of the condition of injury in such approach contributes to the avoidance of the confusion of the virtual nullity with the relative one.
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By a thorough critical study of the provisions of the Law No 8/1996 on copyright and neighbouring rights, the author notes that this Law does not provide an explicit definition of the notion of „work” (of intellectual creation). That being so, in this study, after a legal and linguistic analysis, the author gives in advance his own and complete definition of the notion of „work” (of intellectual creation). The following are further examined: the categories of intellectual creations which do not constitute, however, „works” within the meaning of the Law No 8/1996 and, finally, the substantive conditions for the legal protection of „work” (of intellectual creation), concluding that, under the mentioned aspects, it is required the improvement of some wordings and regulations included in the mentioned law. Key words: work (of intellectual creation); legal regulation; definition of the notion; intellectual creations which do not constitute „works” within the meaning of the Romanian legislation; substantive conditions for the legal protection of the „work”.
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The problems of compulsory licences in the matter of patents has received a unitary regulation with the signing of the Agreement on Trade-Related Aspects of Intellectual Property Rights – TRIPS Agreement. Likewise, the Doha Declaration (Doha Declaration on the TRIPS Agreement and Public Health) is an important legal reference point because it clarifies a number of practical aspects relating to the compulsory licences in the matter of new medicines both in terms of the production for the domestic market and the import of such products. In the context of the sharp rise in the prices of new medicines, as well as of the constant pressure on the public health insurance budgets, the mechanism of compulsory licences may represent for the patients a new way of access to the new innovative medical therapies. This article discusses the international and European legal framework, with a special focus on the legal regime of compulsory licences in Romania. There are also examined the experiences of other countries in this field, the way of determining the remuneration due to the patent owner, as well as the usefulness of these practices for Romania.
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The article analyzes the changes brought in the matter of approval of the application for enforcement. In the Civil Procedure Code of 1865, the enforcement court had jurisdiction over the approval of the application for enforcement. By the Law No 459/2006, this jurisdiction has been changed and the power to approve the application for enforcement has been recognized to the court executor. By the Decision of the Constitutional Court No 458/2009, this change was declared unconstitutional and it was restored the approval of the application for enforcement by the enforcement court. By the Law No 134/2010, that is the new Civil Procedure Code, it has been preserved the approval of the enforcement by the enforcement court, however, by the Law No 138/2014, it was restored the form declared unconstitutional. Therefore, we have considered as being predictable the admission of the plea of unconstitutionality of the provisions of Article 666 of the Civil Procedure Code, by the Decision of the Constitutional Court No 895/2015. Following the Decision of the Constitutional Court No 895/2015, it has been adopted the Government Emergency Ordinance No 1/2016, which reinstated to the jurisdiction of the enforcement court the approval of the enforcement applications. In our opinion, the legal and correct solution is the approval of the enforcement by the enforcement court.
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The regulation (Article 227) of the new Criminal Procedure Code has a partial correspondent in the provisions of Article 146 paragraphs 8 and 111 and Article 1491 paragraphs 9 and 12 of the previous Criminal Procedure Code (1968). The authors analyze the institution of rejection of the proposal of preventive arrest of the defendant during the criminal prosecution, presenting some critical issues and proposing some improvements to the new regulation.
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In this study, the author has chosen to present and to analyze the offence of abandonment of family, provided in Article 378 (1) c) of the Criminal Code, because, with the stabilization of the judicial practice after the entry into force of the Criminal Code, it has been established a new outlook in respect of the approach of the constitutive elements of the offence and a clarification of the controversial aspects with regard to establishing the ill-intention of the offender.
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The direct action is a means to settle debts, created in order to protect privileged creditors. Thus, such action must be expressly provided by law. With regard to the lease contracts, the new Civil Code brings a new element, regulating the right of the lessor to hold the sub-lessee liable for the payment of the rent or for the failure to enforce the contract. As the right conferred to the lessor represents a new element within the Romanian doctrine, there is a necessity to perform an extended study of the direct action derived of the lease contract. This study tackles a general analysis of the direct action of the lessor against the sub-lessee from the perspective of the new Civil Code. Furthermore, there are references within the text regarding the old stipulation in relation to the new one. Last but not least, there will be constant references to the French doctrine as well as to the de lege ferenda propositions for the amendment of the texts within the new Civil Code.
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Faptul că, în cadrul acțiunii în revendicare promovate anterior intrării în vigoare a Legii nr. 10/2001, pârâții au invocat în apărare prevederile art. 45 alin. (2) din acest act normativ, precum și buna-credință de care ar fi dat dovadă la încheierea contractelor de vânzare-cumpărare, nu reprezenta un argument suficient pentru ca instanța să treacă la analiza fondului acestei apărări, după ce aceeași instanță stabilise că legea, în conținutul căreia se regăsește textul de care se prevalau pârâții, nu are incidență în cauză, având în vedere data promovării acțiunii și opțiunea reclamantei, de a continua judecata în condițiile dreptului comun, aspecte ce relevă caracterul contradictoriu al considerentelor hotărârii atacate, fiind astfel incidente dispozițiile art. 304 pct. 7 C.pr.civ. -
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.
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The regulation (Article 226) of the new Criminal Procedure Code has a corresponding regulation in the provisions of Article 1371 paragraph 1 and Article 1491 paragraphs 9–11 of the previous Criminal Procedure Code (1968), with an exception: the duration of the remand on custody will no longer be deducted from the duration of the preventive detention. The authors analyze the institution of admission of the proposal of preventive detention of the defendant during the criminal prosecution, by presenting some critical aspects and by proposing some improvements to the new regulation.
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The offences regulated by the Law No 31/1990 on companies form a domain relatively little explored by the criminal law specialists and quasi-unexplored by the civil law specialists. This study deals with those offences grouped within Article 273. These offences have a few specific elements. First, the active subject of the legal rule hypothesis is qualified, namely a person that holds a certain quality of company member. Secondly, the hypothesis of criminal rule contains elements of company law, which can be found in other articles of the Law No 31/1990. By the fact that the hypotheses of the offences provided in Article 273 are part of the company law, first it is the duty of the civil law specialist to decode the meaning of the material rule, because a rigid application of the purely criminal vision in a field of the private law can lead to wrong conclusions, with serious consequences on the subjects of the offences. But, in order to cover the entire interpretative area, the same consideration must be given to the criminal aspects as well, where the role of the criminal law specialist steps in, so that the reader – either a civil law specialist or a criminal law specialist – forms a proper idea about a far too little investigated field.
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The field „Public Health”, regulated by Article 168 of the Treaty on the Functioning of the European Union, is part of the category of fields of competence shared between the Member States and the Union. The decision to subsidize the price of medicines is the result of several factors: technical, financial and political. For this reason, the Union leaves the decision in this field to the discretion of the Member States but, pursuant to the principle of subsidiarity and proportionality, it tries to standardize certain procedural aspects, meant to ensure the free movement of goods and services. In this respect, it has been adopted Directive 89/105/EEC of the Council of 21 December 1988. In order to ensure a better transposition of this directive, in 2014, Romania has fundamentally changed the normative framework regulating the criteria and the procedures by which new medicines are assessed in order to be introduced on the List including the international common names for medicines for insured persons, with or without personal contribution, based on medical prescription, within the health social insurance system (list of subsidized medicines). For the first time it has been introduced the system of inclusion in the list of subsidized medicines conditioned by the conclusion of cost-volume/cost-volume-outcome type contracts. However, as we will further show, the current Romanian legislation in the field of subsidized medicines does not ensure an effective and integral transposition of the European directive, particularly with regard to the compliance with the imperative time limit for adopting the inclusion/non-inclusion decisions provided in Article 6 (1) of the Directive 89/105/EEC of the Council of 21 December 1988. This study deals with the limits of the current normative framework from a theoretical perspective confirmed by the relevant majority case law in the field.
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Insolvency is a contemporary reality which has spread its branches in more and more areas of the law, but also of the society. With reference to the moment of onset of the economic crisis, in 2008, it can be noticed, from a statistical viewpoint, an increase of the number of companies against which the insolvency procedure has been opened, which are undergoing this procedure with its various stages, a fact which can change our outlook on the effective modalities by which they can continue to participate in the civil relations. In relation to these novelty elements, in this study it is discussed whether companies can continue to participate in commercial life, who will run the business, how will the commercial relations materialize into the sensitive matter of public procurement.
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In this article the author aims to analyze, from a constitutional point of view, the content of Article 21 of the Basic Law. The constitutionalization of free access to justice and the provisions of Article 21 located in the First Chapter of the Second Title of the Basic Law, along with other rules and principles that protect the man-citizen as the primer pin of the governance system and the holder of sovereign political power, as well as exclusive beneficiary, proves thereof the concern of the Constituent Assembly of 1991 in creating the necessary guarantees in regard with the defence of the human rights and liberties in accordance with the general principles of the constitutional democracy and the rule of law as established in the documents of universal human rights, ratified by Romania.
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The new Fiscal Procedure Code, approved by the Law No 207/2015, in force starting from 1 January 2016, through the transposition of some European acts into our domestic law, has brought significant mutations in matters of administrative and fiscal disputes as well. In the ambience of the new normative framework regulated by the Law No 207/2015 on the Fiscal Procedure Code, this study aims at analyzing a few aspects less regulated by the new normative framework and which could create controversies both in the application of the new normative framework by the public tax authorities and by the administrative disputes courts entrusted with the settlement of some litigations in matters of administrative and fiscal disputes. Starting from this desideratum, the study analyzes the categories of judgments pronounced by the administrative courts in matters of fiscal and administrative disputes, as well as the procedure for their enforcement, in relation to each category of judgments pronounced in this matter. There are also analyzed within this study the problems of suspension of the enforcement and of the contestation against enforcement in matters of administrative and fiscal disputes.
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This study is devoted to some critical appreciations in connection with the use, in a relatively recent specialty paper, of some „practicist expressions” in order to designate the territorial jurisdiction of the court of first instance to settle the divorce applications („court of first instance having jurisdiction over the place of residence of the defendant”, „court of first instance having jurisdiction over the place of residence of the applicant” etc.). Likewise, our analysis also concerns the conclusions drawn within the same paper in connection with the concurrence between the territorial jurisdiction theses regulated by Article 3 (1) a) and those provided by letter b) of the Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
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This article presents the provisions of the new Civil Procedure Code whose entry into force has been postponed again, by a recent normative act. These provisions refer to: the investigation of the trial, the preliminary procedure before the appeal and recourse court, the judgments which can not be challenged by recourse and the composition of the panel of judges for pronouncing a preliminary judgment by the Supreme Court. In a criticizable manner, in the author’s opinion, the legislator has prorogued the entry into force of these provisions, initially for 1 January 2016, and then for 1 January 2017. The conclusion of the study is that the legislator should have allocated material and human resources necessary in order to create all the conditions for a full entry into force of the new Civil Procedure Code from the beginning (15 February 2013), not a partial one, being required successively (for the texts not entered into force ab initio) two postponements (1 January 2016 and then 1 January 2017).
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Clauza de dezicere inserată într-un antecontract de vânzare-cumpărare, prin care s-a prevăzut posibilitatea de răzgândire a promitentei-vânzătoare din motive subiective, rămâne fără efecte în situația decesului acesteia, neputând fi invocată de moștenitori. Și aceasta întrucât dreptul astfel prevăzut în favoarea promitenteivânzătoare are un caracter strict personal, iar datorită acestei caracteristici acest drept este incesibil, adică netransmisibil moștenitorilor, putând fi exercitat numai de către titular. -
In this study, the author presents a constitutional reform on the Hungarian Constitutional Court, in the sense of extending its substantive jurisdiction, which entered into force at the beginning of the year 2012. Indeed, the mentioned reform preserves the classic system of the constitutional courts, but it receives an additional jurisdiction, i.e.: after a judgment has become final, either party may address to the Constitutional Court if the decision made is contrary to a fundamental right established by the Constitution. This way, concludes the author, the Constitutional Court is elevated at the level of a centre of the state power, an independent branch thereof which, in a certain sense, conducts a control on all branches of the state power.
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The regulation (Article 225) of the new Criminal Procedure Code is not too different from the one (Article 1491 paragraphs 3–8 and Article 150) of the previous Criminal Procedure Code (1968). Instead, the new criminal processual law does no longer provide for the possibility to settle the proposal of preventive detention, in the absence of the defendant, when the defendant is abroad, as it was stipulated in the previous Criminal Procedure Code. The authors analyze the institution of settlement of the proposal of preventive detention, by presenting some critical issues and by proposing some improvements to the new regulation.
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The Government Emergency Ordinance No 111/2010 has established in Romania the grant of the leave for raising children (also called parental leave), with the payment of the related allowance. This normative act represents the transposition, in the Romanian legislation, of Directive 2010/18/EU of the Council of 8 March 2010, without, however, also properly supplementing the (Romanian) Labour Code (the Law No 53/2003). Given this situation and also taking into account the relevant creative case-law of the Court of Justice of the European Union, the author makes an analysis of the regulations and of the practice in the field and, retaining some discrepancies, it comes to the conclusion that the provisions of the Emergency Government Ordinance No 111/2010 and of the Labour Code must be interpreted and applied in the light and in accordance with EU legislation and of the case-law of the Court in Luxembourg, the supplementation of the Labour Code being also required, so that the right of the employee to fully benefit by the rest leave, after taking the leave for raising children, be expressly provided in the Romanian legislation, a series of discussions and controversies being thus avoided.
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The study is devoted to the analysis of the provisions of Article 304 of the Civil Code referring to the „putative marriage”, a legal institution meant to protect the good faith upon the conclusion of the null or annulled marriage. Unlike other authors, but in agreement with the provisions of Article 304 (1) of the Civil Code, we have also analyzed, together with the condition that at least one of the future spouses act in good faith, the requirement of existence, on the date of conclusion of marriage, of a factual situation which causes the nullity or the annulment thereof. Similarly, because the analysis of the effects of the putative marriage does not present difficulties of interpretation in case both future spouses have acted in good faith upon the conclusion of the marriage, we have focused on the situation in which, on the contrary, one of them acted in good faith and the other acted in bad faith. Finally, we have tried to elucidate the reason which determined the legislator to subject the patrimonial relations between former spouses, including in case that only one of them acted in good faith, to the provisions concerning the divorce and we have grounded a proposal de lege ferenda likely to eliminate the „legal compromise” generated by the current normative solution.
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In principle, the confession is admissible as means of evidence in all the matters for which the civil processual law represents the common law of the procedure and for which there is no separate procedure. Exceptionally, the confession is not admissible: when it is expressly prohibited by law; whether, by admitting it, the imperative provisions of the law would be eluded; if the law requires that certain facts be proved only by certain means of evidence; if, by admitting it, one could reach to total or partial loss of a right which may not be waived or may not be subject to a transaction. The judicial confession shall be given by means of cross-examination, as reflected by Articles 351–358 of the Civil Procedure Code. Obviously, it is a question of provoked judicial confession, whereas the spontaneous judicial confession does not require any prior preparation and, as such, it does not require an express regulation. Instead, the written extrajudicial confession is subject to the regime of proof of evidence through written documents, and the extrajudicial verbal confession may be attested by witnesses, if the law allows the testimonial evidence. The legislator of the new Civil Procedure Code expressly establishes the principle of indivisibility of the judicial confession and, at the same time, he provides an exception from this principle, namely the situation in which the judicial confession contains separate facts not connected between them. In this study there are elaborated the ideas presented above
