Loading...
  • The author analyses crimes such as “Not helping a person who is in need” and “Preventing help” from the new Penal code, revealing, if the case may be, the similarities and differences as compared to the effective penal law. The last part of the article contains elements of comparative law, with reference to the approached theme.
  • In this study, the author, while reporting certain provisions of the new Civil Code (Law no. 287/2009) and of Law no. 71/2011 for the implementation of the new Code, as compared to certain provisions of the Government Emergency Ordinance no. 44/2008 regarding the performance of the economic activities by self-employed persons, believes that through Art. 11 of Law no. 71/2011, one has not granted legal personality to the individual and family enterprises regulated by the ordinance mentioned above, while on the contrary, through Art. 2324 (4) of the new Civil code (in force as of 1 October 2011), one has implicitly amended Art. 31 of the said Emergency Ordinance. Finally, the author opinionates that the “Monist” concept of the new Romanian Civil Code (namely, the cancelation of the trade law and the existence of a unique civil law, which also incorporates the former trade law) is more of a formal issue, not a substance one.
  • The current article examines the issue of the monitoring of the general revenues of the fixed assets (owned by the debtor), by the creditor according to the regulations included in Art. 789-801 of the new (Romanian) Civil Procedure Code (Law no. 134/2010), as compared to the appropriate provisions of the old (Romanian) Civil Procedure Code from 1865, which was successively republished in 1900, as well as in 1948. All in all, as it is only natural, usually, the new regulations are usually, as it is only natural, obviously superior to the previous ones.
  • The autonomous collaterals are regulated, for the first time, by the new Civil Code, within the personal collateral, together with the parent guaranty. The law allots them a small portion, equally essential and simple, so that they may have substance and legal identity. But their legal regime can be essentially revealed through the extension of the analysis to the regulations in the field. The uniform rules for demand guarantees constituted by the International Chamber of Commerce from Paris and the Convention of the United Nations Commission on International Trade Law with respect to the independent guarantee and the stand-by letter of credit. The present paper analyses the legal regulation, the concept and the legal category of the autonomous collateral. The author’s objective is that of revealing its complexity as a legal fundamental instrument in the field of internal and international business.
  • The author, in the above mention study, makes a general analysis of Law no. 71/2011 for the implementation of Law no. 287/2009 regarding the Civil Code. In the author’s opinion, Law no. 71/2011 is an extremely valuable legislative act, which ensures very good conditions, not just the understanding and application of the new Civil Code (which entered into force on 1 October 2011), but also the “transition” from the previous Civil Code (from, 1865) to the new ones.
  • Constrângerea moralã, cauzã care înlãturã caracterul penal al faptei prevãzute în art. 46 alin. 2 C.pen., presupune îndeplinirea urmãtoarelor condiþii: sã existe o acþiune de constrângere exercitatã de o persoanã asupra psihicului unei alte persoane, prin ameninþare; ameninþarea sã creeze un pericol grav pentru fãptuitor sau pentru o altã persoanã, în cazul în care nu ar sãvârºi fapta prevãzutã de legea penalã; pericolul cu care se ameninþã sã nu poatã fi înlãturat decât prin sãvârºirea faptei prevãzute de legea penalã.
  • The article reviews the organized crime phenomenon, as cross-border and multinational crime. The first section substantiates the concepts, both from a doctrine-related and a legislative perspective. An important part in terms of content and scope is dedicated to the analysis of European policies and strategies, emphasizing the security strategy of the European Union. The last part presents certain solutions for fighting against the cross-border crime phenomenon.
  • Law no. 202/2010 on certain measures regarding the acceleration of the settlement of lawsuits, the so-called “small reform”, was adopted in order to accelerate the settlement of lawsuits, by ensuring the swiftness of procedures, both in criminal matters and in civil matters, even before the expected entry into force of the new codes (the Criminal Code, the Criminal Procedure Code, the Civil Code, the Civil Procedure Code). In the field of criminal prosecution, certain provisions of the current Criminal Procedure Code were amended, with a view to ensuring swiftness by eliminating the provisions that required the court intervention for the revocation or termination of certain preventive measures if the prosecutor issues a decision for the non-initiation of court proceedings; however, no amendments were correlatively made to other provisions of the code in relation thereto. Therefore, certain disputes might arise in connection with the implementation of such texts of law.
  • The establishment of the European arrest warrant at the European Union level, which actually replaced extradition, is, without any doubt, an important success of the Member States in the fight against cross-border crime. The execution of a European arrest warrant by the relevant Romanian judicial authorities, in the case of cross-border crimes, involves several specificities of this type of crimes, with direct implications over the entire European judicial system. The specificities identified by the authors in the paper include the execution of the mandate, even when the double crime condition is not fulfilled, the possibility of the Romanian competent courts to order the execution of a European arrest warrant, even when the crime for which the execution is demanded does not have the same name as in Romanian, the possibility of the relevant Romanian court to order the execution of the European arrest warrant, even if the crime for which such execution is requested is not provided by the Romanian law, but the content of the crime provided by the Member State law has similarities with a crime provided by our legislation etc. The analysis also revealed certain aspects related to the need to amend and supplement the special law (and the European piece of legislation) that should in line with the European legislation in the field.
  • One condition of the status of repetition of an offence is the existence of the prior final order for conviction to imprisonment for more than 6 months, issued in the case of perpetration of an intentional crime. As regards the calculation of the time when the conviction order becomes final, the substantial criminal law rules shall apply. According to such rules, time shall not be calculated in hours, but only in days, weeks, months and years. Since a day expires at 1200 a.m., the perpetration of a new crime on the date when the previous decision becomes final does not entail the status of repetition of offence for the defendant, but the applicability of the institution of felonies in concert.
  • The more favorable criminal law principle was not implemented in a unitary manner in time. Doctrine-related conceptions were different, substantiating either the idea that only a law as a whole may be favorable, or the idea that favorable provisions of distinct laws may apply to a concrete case. The author defends the supremacy of more favorable criminal law over all the criminal law principles and believes that a more favorable rule may be corroborated with another rule regarding the content of the crime, without generating the lex tertia. The author also states that the more favorable criminal law principle should govern all the sequences of the criminal lawsuit, initiated upon the perpetration of a crime and extinguished by the perpetrator’s total rehabilitation.
  • This study starts by a comparative analysis of the institution of the summons to pay (regulated by Government Ordinance no. 5/2001) and the procedure of the payment injunction (regulated by Government Emergency Ordinance no. 119/2007), and in the end proposes the unification of both pieces of legislation into a single one, equally applicable to civil and commercial obligations.
  • The authors review in this study the legal regime of receivables’ discounting, both in the Civil Code (of 1865, still in force), and in other special laws, as well as in the Romanian new Civil Code (Law no. 287/2009) or in the Romanian new Civil Procedure Code (Law no. 134/2010, neither law has entered into force yet), also considering the opinions expressed in the doctrine and in the relevant decisions of the case law. In this context, the authors reach the conclusion that indexation is compulsory, as it is in line both with the provisions of the Constitution of Romania and with the (European) Convention of Human Rights and Fundamental Freedoms.
  • Further to the analysis of article 289 (3) of National Education Law no. 1/ 2001, the author reaches the conclusion that this piece of legislation (according to which the teaching or research staff of higher education institutions may carry on their activity after retirement provided that individual employment agreements are concluded for a limited – annual – period) breaches the European rule in the field (Council Directive 1999/70/EC of 28 June 1999). Therefore, if a fourth agreement is successive, this time, such ope legis becomes concluded for a unlimited period.
  • The amendment of the fundamental law of a State is an extremely complex political and legal act with major meanings and implications in the political and State social system, but also for each individual. This is the reason why such a process should be well justified, respond to well-traced political and legal social needs and particularly meet the principles and rules specific to a democratic constitutional and State system, by ensuring the stability and functionality that this system needs. This study reviews the need for such a constitutional reform in Romania, as well as certain provisions of the Presidential Commission’s Report analyzing the political and constitutional regime in our country. The study also words opinions about the justification of certain new constitutional regulations. Against this background, it is believed that there are arguments in favor of maintaining the bicameral parliamentary system, and a potential revision of the Fundamental Law should take into consideration the measures necessary to guarantee the political and constitutional institutions specific to the rule of law and to avoid the ultra vires exercise of the State authorities’ duties. According to the author of the study, the scope of the Constitutional Court’s duties should be extended.
  • The correlation between parliament and democracy is a classical one. It has been proven not only by the beginnings of parliamentarism, related to limitation of the omnipotence of the monarch, but also by subsequent developments, especially in the generalization of universal suffrage, but also by the historical experience of the previous century, when the collapse of totalitarian or authoritarian regimes has always been followed by the return to parliamentarism or to a political system in which Parliament’s role is essential. After joining the European Union, its role was enhanced by its involvement in the European decision-making process.
  • The author starts in this study from the premise that a law may not be retroactive, after presenting the regulation on retroactivity in the previous Civil Code (of 1865), and makes an actually exhaustive analysis of the matters related to the implementation of civil law in time, as related to the continuity of the Romanian new Civil Code (applicable as of 1 October 2011). Finally, the author reaches the conclusion that the provisions of the Romanian new Civil Code as regards the set of civil laws in time are much more complex, and therefore superior, in relation to the regulations concerning the old Civil Code.
  • Instanþa de apel a fost învestitã cu o cerere în pretenþii ºi în constatare generatã de executarea contractului de vânzare-cumpãrare acþiuni pe care pãrþile l-au încheiat la 26 septembrie 2003 prin care se solicitã în concret: 1) obligarea la penalitãþi calculate conform art. 12.10 ºi datorate ca urmare a neîndeplinirii prevederilor clauzei nr. 12.3 din contract; 2) penalitãþi calculate conform clauzei 12.8 ºi datorate ca urmare a îndeplinirii cu întârziere a prevederilor art. 12.7 din contract pentru primii trei ani investiþionali;
  • Au fost analizate mai multe situaþii în care pedepsele aplicate inculpaþilor trebuiau sã fie descontopite în individualitatea lor pentru fapte concurente ºi apoi aplicarea procedeului judiciar de contopire din nou a acestora cu pedeapsa ce se aplicã în cauza dedusã judecãþii, potrivit dispoziþiilor art. 36 alin. (1) C.pen. Contopirea din nou a pedepselor se referã atât la pedepse integrale aplicate, cât ºi la fracþiunile acestora rãmase neexecutate, ceea ce poate conduce la revocarea ºi contopirea unor resturi de pedeapsã care au mai fost revocate ºi contopite în noua pedeapsã (cu notã criticã).
  • The principle of equality of arms is a jurisprudential principle of the European Court of Human Rights and is an integral part of the right to a fair trial enshrined in the (European) Convention for the Protection of Human Rights and Fundamental Freedoms. Within this article, the author set herself to undertake an analysis of the evolution of this principle, both in terms of jurisprudence and legal point of view.
  • In this study, the author comments on a Resolution passed in 2010 by the High Court of Cassation and Justice (Joint Sections), issued following an appeal promoted in the interest of the law and argues that, in contravention law, the principle of nulla poena sine lege is fully justified, both in general, and when the alternative sentencing for the main penalty of fine is performing community service.
  • The mitigation case provided by Article 3201 Code of Criminal Procedure may coexist with the mitigating circumstance under Article 74 par. (1) point c) Criminal Code, whereas the two mitigating circumstances are different in content (especially in terms of intensity of the readiness of the defendant to cooperate with legal authorities) and different functions (under Article 3201 Code of Criminal Procedure it is rewarded the defendant’s readiness to accept a short and summary procedure resulting in reducing the trial’s duration, whereas under Article 74 par. (1) point c) Criminal Code honesty is rewarded). Therefore, there can not be the case of taking advantage twice of the same mitigating circumstance. If there should be agreed upon the idea that the retention of Article 3201 Code of Criminal Procedure prevents retention of Article 74 par. (1) point c) Criminal Code, then the defendant may prefer not to invoke Article 3201 Code of Criminal Procedure in order to capitalize on the more generous mitigating effects of Article 74 par. (1) point c) Criminal Code.
  • The article analyzes the regulation of trial when admitting guilt and the practical consequences resulting from this procedure. Admission of guilt can be made either by statement of the defendant in court, or under writ, in which case the proceedings may take place without the presence of the defendant. In terms of object of admission, out of the marginal terms of wording under Article 3201 Code of Criminal Procedure Code, it appears that it refers to “guilt”, but from the reading of paragraph (1) of the said wording it appears that admission refers to “committing acts written down in the document instituting the proceedings”. Should we relate this regulatory text to the provisions of Article 263 par. (1) Code of Criminal Procedure, regulating the indictment contents, it is clear that admission is limited to committing the crime exclusively, failing to refer to the legal classification granted under the document instituting the proceedings or any other person to which it relates. Article 3201 in the Code of Criminal Procedure is, as evidenced by the mere reading of its wording, of its marginal name and the topography of the Code of Criminal Procedure, undeniably, a procedural rule designed to accelerate the settlement process and not a rule of substantive criminal law. Bearing this legal nature, the authors argue that Article 3201 Code of Criminal Procedure can not be considered a more favourable criminal law (mitior lex), its provisions falling outside Articles 13-15 Criminal Code.
  • Article hereby deals with the legal effects of Decision No. 573/2011 of the Constitutional Court on the plea of unconstitutionality of the provisions of Article 74¹ of the Criminal Code, focusing on its consequences in terms of reinforcing provisions of Article 10 of Law No. 241/2005 on preventing and combating tax evasion, as subsequently amended and supplemented.
Folosim fisierele tip cookie-uri pentru a va oferi cea mai buna experienta de utilizare a website-ului. Navigand in continuare ori ramanand doar pe aceasta pagina va exprimati acordul asupra folosirii cookie-urilor. Daca doriti sa renuntati la acestea, va rugam sa consultati Politica de Utilizare a Cookie-urilor. Anumite parti ale website-ului nu vor mai functiona corect daca stergeti toate cookie-urile. Citește mai mult... Ok