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Within the new Romanian law for preventing insolvency and for insolvency (Law No 85/2014) a regulation of novelty is represented by the provisions of Article 182 (1) and (3), according to which the judicial administrator/judicial liquidator may be held liable for exercising his duties in bad faith or in gross negligence, but not if he acts in good faith within the limits of the duties provided by the law and of the available information. This new regulation in the matter is analyzed in detail in this study. -
This paper makes a detailed examination of certain essential provisions in relation to the preparation of the contract. The examination is focused especially on the novelty issues entered by the Law no. 287 of 17 July 2009 on the Civil Code which repealed the Civil Code of 1864 into force until 30 September 2011. The author proposed an examination based upon rigor and objectivity in his attempt to understand the true meaning of the provisions of the new regulations. To this end, the doctrine and the case law in the matter are taken into consideration, and especially the solutions for each issue under discussion are filtered by the domestic and external case law. Likewise, references are made to the legislations of other states, which represent sources of inspiration for the editors of the new Civil Code, for the purpose of understanding accurately the provisions related to the conclusion of the contract. At the same time, certain debates of the doctrine and case law are briefly examined as regards the interpretation given to certain provisions introduced in the new Civil Code and, as the case may be, a critical analysis is carried out as well, in relation to these issues. -
The idea and, especially, the usefulness of this study have been suggested to us by some amendments brought to the Law No 273/2004 on the procedure of adoption by the Law No 57/2016, including with regard to the issue of the jurisdiction of the Romanian courts in matters of adoption, by the provisions of Articles 1066–1082 of the Civil Procedure Code, referring to „the international jurisdiction of the Romanian courts”, as well as by the existence in this area of some norms still involving an effort of logical-legal polishing. Specifically, we have subjected to analysis the hypotheses of international jurisdiction of the Romanian courts, the material and territorial jurisdiction of the tribunal, respectively of the Bucharest Tribunal, with regard to the applications in matters of adoption. -
The article deals with the arbitrability of disputes arising in connection with intellectual property rights. The author analyzes and proposes possible solutions, given the arguments in favour and against the arbitrability of such disputes, based on the interpretation of the relevant provisions contained in the new Civil Procedure Code and in the special legislation edicted in matters of intellectual property rights. The last part of the study comprises a comparative analysis of the possible solutions adopted in the matter of arbitrability of these disputes in some European countries, in the United States of America and in Canada. -
According to the Romanian laws in the matter, the President of Romania, the senators, the deputies, the presidents of the county councils, the mayors, the county counselors and the local counselors are elected by the people by direct vote. Instead, the vice-presidents of the county councils and the deputy mayors of the local councils shall be elected by the indirect vote of the representatives elected in the county councils and respectively, in the local councils. Examining this issue regulated in several laws successively amended and supplemented, which results in a series of confusions regarding the enforcement, the author concludes that it would be reasonable and advisable for the vice-presidents of the county councils and for the deputy mayors of the local councils to be elected by a direct vote. -
Problema executării silite este reglementată în mod sumar în instrumentele europene adoptate în domeniul cooperării judiciare civile, astfel încât, în prezent, această materie este guvernată de principiul teritorialității procedurilor de executare. Aceasta înseamnă că procedurile de executare silită sunt reglementate în principal de legislațiile naționale, instanțele statului membru de la locul de executare dispunând de competență exclusivă pentru rezolvarea tuturor incidentelor rezultate din activitatea de punere în executare silită a titlurilor executorii. -
This study starts from a case settled in the preliminary chamber by a court that has proceeded to the exclusion from the probative material of some illegally obtained evidence, but also of those derived therefrom. In the analyzed situation in the context of the preliminary chamber it was found that there had been a confusion which led to obtaining data on a person’s financial transactions in an unlawful manner, namely by an ordinance that had not been validated by a judge of rights and freedoms, as the provisions of Article 138 (9) of the Criminal Procedure Code would have required.
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The authors of this study bring into question issues arising from the adoption of the new codes, the Civil Code and that of Civil Procedure, and analyze practical aspects relating to the laws implementing the two new codes impact on the related acts thereof. Adopting the new codes, in addition to establishing provisions to meet current requirements, has also generated numerous legislative interventions on the related legal acts. To facilitate tracking legal information, republication of these related acts was provided for, operation which, most often created many problems regarding proper preparation of the re-publishable forms of the concerned acts. Furthermore, the authors also present statistics about the number of normative acts needed to be republished under the new codes and the concrete way to fulfill this task, specifying both the acts in respect of which the re-publishable forms have been formally drawn, and those in respect of which this obligation has been fulfilled by republishing thereof in the Official Gazette.
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In this article, the authors examine the modality of conducting the procedure of replacement of the measure of preventive detention with the preventive measure of judicial control on bail, respectively if, according to the regulations of the Criminal Procedure Code, at the same time with the admission in principle the judge examines inclusively the grounds of such application or, on the contrary, it requires an initial examination strictly in terms of fulfilment of the formal conditions, finalised with the admission in principle and with fixing the quantum of the bail, and only in the second stage the examination of the application on its merits in terms of its rightfulness. Likewise, there are analyzed the legal remedies against the interlocutory judgment of admission in principle, respectively of the interlocutory judgment whereby the judge rules on the merits of the case. Finally, the authors present the contradictory solutions at the level of different courts of appeal and of the High Court of Cassation and Justice, analyzing inclusively the report drawn up by the supreme court, the Panel for the settlement of some points of law in criminal matters. Likewise, they formulate a series of de lege ferenda proposals, which aim to eliminate the contradictions between the different articles of the Criminal Procedure Code in this matter. -
This article emphasises the special situations of some employees of the public hospitals, of the forensic medicine institutes and of the employees of some quarry mining exploitations, who have reported prejudices to their right to health and safety at work by the conduct of the employers, of the trade unions and even of the public institutions with powers of control and of ensuring the respect for these rights. -
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. -
Infracțiunea prevăzută de art. 337 C.pen. are ca situație premisă solicitarea expresă din partea organelor de poliție rutieră adresată conducătorului auto de a se supune prelevării de mostre biologice, în ambele modalități normative, atât în cazul refuzului, cât și în cazul sustragerii conducătorului unui vehicul de a se supune prelevării de mostre biologice necesare în vederea stabilirii alcoolemiei.
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The study is devoted to the analysis of the legal provisions on the civil liability for disregarding the copyrights, the rights related to copyrights and the sui-generis rights of the creators of databases. Specifically, there are discussed aspects such as: the basis of the matter, the nature of the infringed rights, the engagement of the civil liability (the nature of the legal actions regulated by Article 139 of the Law No 8/1996, the promotion of these actions, the jurisdiction to settle the litigations, setting of the damages, the provision of information and the provisional measures). The idea of the study starts, especially, from the little consideration given to the subject in the Romanian doctrine in the field of legal protection of the intellectual creation and in the numerous existing normative problems in the matter. -
The institution of preventive arrest is regulated by the new Criminal Procedure Code in Article 223 and the following, representing the hardest preventive measure that can be taken against the defendant in the criminal prosecution phase, in the preliminary chamber phase or in the trial phase. As it is normal, the institutions referred to in the Criminal Procedure Code appear to be very strictly and concisely regulated, but even so, there may be problems in the practice of the courts and of the public prosecutor’s offices that function next to them, with regard to the interpretation of the rules. The measure of preventive arrest is the harshest of the preventive measures, because it completely deprives of liberty the defendant accused of committing an offence. In relation to the cases in which the measure of preventive arrest may be ordered and the conditions to be satisfied for taking this measure, the practice is not always unitary. If most of the cases expressly provided in the Criminal Procedure Code in which this measure may be ordered do not pose problems of interpretation, their applicability being strict and commonly understood by practitioners, some cases, also expressly provided, bring to light a series of profound legislative matters that will have to be solved, in the future, by means of the legislator’s action of amendment and supplementation of the provisions in the matter or by means of interpretation of these provisions by the High Court of Cassation and Justice in order to unify the judicial practice. -
Termination of payments or insolvency is the patrimonial state of an entrepreneur that is outlined by the impossibility of creditors to pay. In this case, a collective procedure is in place to cover the insolvency debtor’s liability, a procedure governed by the provisions of Law No 85/2014 on insolvency and insolvency prevention procedures. This procedure, although it is a collective one, retains its contradictory character, litigious issues being usually settled with parties summoning. The fundamental principles of the civil process governed by the Civil Procedure Code also apply to insolvency. The Civil Procedure Code is the common law of insolvency where the Insolvency Law does not contain special rules. The way in which the participants in the procedure are summoned or notified, as well as the manner in which the communications of procedural documents and information in the insolvency proceedings are made, are simplified and dematerialized. Notifications and communications are made through the Insolvency Procedures Bulletin (BPI), an electronic publication managed by the Trade Registry. Anyone can get information on a business partner’s insolvency procedure through a simple search in this database. -
In the Romanian civil law and civil processual law there are several particular situations that raise problems in terms of application in time of the civil law and of the civil processual law, especially in case of prescriptions, both to the extinctive prescription and to the acquisitive prescription. It is noted the fact that, in case of prescription of execution, the provisions of processual law are supplemented with the provisions of substantive law, therefore the conflict of laws in time arises not only between the civil procedure rules, but at the same time between the rules of civil material law as well. As regards the acquisitive prescription, the conflict of laws arises, in particular, between the provisions of the Decree-Law No 115/1938 and those of the Civil Code of 1864, and the situation is complicated by the fact that the moment when the prescription period starts to run is different in the two normative acts. The solution proposed by the doctrine to resolve the conflict of laws between the former Civil Code and the current Civil Code can be useful also in case of conflict in time between normative acts, in this case with regard to usucaption, in order to avoid that the applicable law be different from the law that has determined the applicable law. -
In this study, the author examines the incidence of the provisions of Article 1221 et seq. of the new Civil Code (concerning the lesion) in the field of „business law”. In this respect, after a series of general considerations on the lesion in the context of the new Civil Code, as well as in the context of clarification of the concept of „legal relationships arising in the business environment”, the author examines, in detail, the problems of contracts in the business environment, by emphasizing, within the latter, their division into balanced contracts and imbalanced contracts. Such being the case, the author concludes that, in principle, the lesion is inapplicable in case of balanced contracts, but is incidental, as a rule, in case of imbalanced contracts. -
This article has as object of study the issue of the marriages of convenience concluded for the sole purpose of ensuring the right of entry and of stay of a foreign citizen on the territory of Romania. In elaborating the study plan we have considered: a first introductory part which presents the normative basis relative to the legal regime of the foreigners; a section devoted to some decisions of the Romanian Constitutional Court which has been entrusted over time with analysing the concordance of the provisions regarding the legal regime of foreigners with our Fundamental Law; a point devoted to the European legislation relevant for the issue under our examination and a practical part which reveals how Romanian courts have settled cases concerning the assessment of the marriages of convenience. -
The content of the medical legal relation includes all rights and obligations of the provider and of the beneficiary of the medical service. Among these, only the rights of the patient benefit by an explicit and ample special regulation and by a growing doctrinal interest. However, this does not mean the lack of specific rights in favour of the doctor, but only the necessity to identify the existence and the determination of their content by analyzing the nature and/or the implicit effects of the legal provisions and of the jurisprudential solutions. Thus, the patient’s acceptance by the doctor, based on Article 663 (1) of the Law No 95/2006, is the equivalent of the informed consent of the patient, expressed pursuant to Articles 660–662 of the Law No 95/2006 and Articles 13–20 of the Law No 46/2003; the interruption of the relation between the doctor and the patient, pursuant to Article 664 (1) c) (ii) of the Law No 95/2006, as a result of a hostile and/or irreverent attitude towards the doctor, would be impossible in the absence of an obligation of gratitude of the patient, correlative to a right to gratitude of the doctor; and the jurisprudential consecration of the liability of the sanitary unit for the damage suffered by the doctor due to a nosocomial infection is due precisely to the existence of a right to security of the doctor.
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An in-depth analysis of the mechanisms by which the recipients of the legal norm end up evading the payment of the tax obligations and, subsequently, giving an appearance of legality to the illegally obtained amounts, can only be beneficial for an overall understanding of the typical elements of those two offences (tax evasion and money laundering). Without a tradition in our criminal law, incriminated for only two decades, the offence of money laundering has surprisingly gathered around it a rich case law, which is the subject of numerous criminal cases. At the same time, the analysis of the outlined case law has revealed different approaches and solutions from the courts on some important aspects of the offence of money laundering and their clarification is all the more necessary as we are talking precisely about its typicality elements. Whereas the offence of money laundering is often concurrent with the offence of tax evasion, it is necessary to analyze their points of interference, both at the level of their objective side and from the perspective of reparation of the damage.
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The regulation of the profession of physiotherapist was made in Romania by the Law No 229/2016, which also established the College of Physiotherapists from Romania, as a professional organization, of public interest, having as object of activity the authorization, control and supervision of the exercise of profession of physiotherapist. In this article there are presented aspects regarding the outlining of the notions of physiotherapist/kinetotherapist, regarding the content and organization of the profession of physiotherapist by the new regulations, as a liberal profession of authorized public practice. In the present study it is analyzed the context in which it was adopted the Law No 229/2016, at a time when the status of the profession of physiotherapist was not regulated, at a time when the County Public Health Directorates issued authorizations for free practice which authorized persons licensed in other fields (physical training and sports), there are emphasized the current conditions for issuing the free practice authorization for physiotherapists. The study presents aspects regarding the recognition of the diplomas and qualifications at European level and the mobility of the profession of physiotherapist, as well as aspects related to the introduction of a European professional card and to the possibility of issuing the certificate of conformity. There are presented aspects concerning the compensatory measures designed to eliminate the important differences in programs specific to physiotherapy. In his activity, the physiotherapist must comply with the Code of Ethics of the Physiotherapist and the Status of the College of Physiotherapists from Romania. Elements of novelty regarding the malpractice in physiotherapy are presented, with connections to the experience gained in the sphere of medical malpractice, including with references to the subjective foundation of the civil liability of the medical staff.
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In this article, the author attempts to draw the attention of law practitioners in Romania on the importance of the “money laundering” phenomenon, in the context of the need to fight against organized crime and crime in general, followed, in most cases, by the attempt to “legalize” the income obtained from criminal activities. We believe that the action is welcome, being aimed at a better specialization of Romanian practitioners, also in the context of the relative “novelty” of this criminal pattern at both national and international level, in the field of prevention and fighting against money laundering. -
The right to protection of personal data is essential for the respect for some fundamental rights of the citizen, including in his capacity of employee, in particular the right to private life. The labour legislation contains some provisions that can guarantee respect for this right, which they explicitly establish, however they can not be considered separately from the Law No 677/2001. The reasons that justify the processing of personal data of employees are those expressly and restrictively provided by the Law No 677/2001 on the protection of individuals with regard to the processing of personal data and the free movement of such data, and the employees have the rights regulated by this law: the right to be informed, the right of access to processed data, the right of intervention upon the data, the right to object and the right to take legal action. -
The following study reviews the Ukrainian and Romanian legislation regarding the protection of persons belonging to the Romanian minority in the Republic of Ukraine. The author concludes that relevant statutory regulations exist, but their actual implementation leaves much to be desired. Finally, it is considered that the Romanian State must have the legal and moral duty to participate actively in the life of Romanian communities in neighboring countries (among which Ukraine is included), but obviously by observing the principle of sovereignty and noninterference in internal affairs of these States. -
The company’s entry into insolvency proceedings may be the result of an unfavourable economic situation or the abusive or negligent attitude of the governing bodies may contribute to this outcome. Sometimes people outside the company may have exercised a direct or indirect control of the company’s activities and be liable for insolvency. In these last hypotheses, the legislator chose to sanction insolvency peers who are held patrimonial alongside the insolvent society in order to satisfy creditors’ claims. As a rule, the former statutory administrator is the one who is called upon to respond to the mismanagement of the company’s business. Taking responsibility for this person implies the making of a claim for property liability which is the subject of a separate litigation in the company’s insolvency proceedings. This distinct dispute is settled in a contradictory procedure, with the administration of evidence in order to establish the meeting of the conditions of civil liability under Article 169 of the Law No 85/2014. When, prior to the opening of insolvency proceedings or during the course of the proceedings, whether or not an application for the liability of the statutory administrator was initiated, the question arises as to what happens when the death of the statutory administrator occurs. Such a request to obtain a patrimonial response in conflict with the heirs of the predecessor administrator may be made or continued or the liability is limited to the person of the deceased and a decision cannot be made to order the successors to answer for de cujus clerical errors. -
In its capacity of party to the (European) Convention on Protection of Human Rights and Fundamental Freedoms and its Additional Protocols, inter alia, Romania has committed to comply with Art. 6 of the mentioned international instrument as well as with art. 2 of the Additional Protocol no. 7. For this reason, it is imperative that documents which have important procedural consequences and emanating from a body which is part of the executive power, to be susceptible of a fair and adversarial control from a judge, meeting the fairness guarantees consistent with the rule of law – this is, in fact, the ratio legis of art. 2781 of the Criminal Procedure Code. Equally, according to art. 2 of the Additional Protocol no. 7 to this Convention, any person convicted of an offense within the autonomous meaning of this term, has the right to submit the “declaration of guilt” concerned to the analysis of a higher court, benefiting from the double degree of jurisdiction in criminal matters. This study aims to analyze the compliance of the referred supranational provisions with the provisions of positive domestic law.
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The retransmission of the right to successoral option raises some difficulties of theoretical understanding and practical application, at least for the following reasons: the Civil Code, now in force, substantially changes the logic of the previous regulation of this legal institution; in practice, there are being debated, with a significant frequency, inheritances opened before 1 October 2011 (the moment when the current Civil Code entered into force) and which consequently fall under the incidence of the provisions of the former Civil Code (which ultractivates); there are encountered, in practice more frequently, several inheritances in respect of which the right to successoral option has been successively retransmitted; the institution about whose issues we are concerned herein, in particular, have some resemblances to the successoral representation and to the retransmission of the inheritance. For all these reasons, and we believe that there are not few, nor the only ones, we will discuss further the retransmission of the right to successoral option, starting from the theoretical aspects, which are indispensable for its just understanding and for its proper application in practice. In this context, we will give concrete examples, with the hope that they will be of use to theoreticians and, in particular, to practitioners in the field of successions.
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In this study the author analyses the individual amnesty at the level of the constitutional disposition, in the light of the compared law as a prerogative of the head of State. Covering this analysis, the author concludes that the deed of individual amnesty represents a discretionary and sovereign duty known in most cases as a prerogative of the executive body which exercises this prerogative being able to pardon, usually, without any justification, any individual, no matter the offence he/she committed, provided that he/she was finally sentenced. -
The proposed study aims, in particular, at questionable normative aspects concerning „the action for nullity of the registration of the trademark” in the regulation of the Law No 84/1998 on trademarks and geographical indications. In fact, contrary to the reference that some texts of this law make to „the nullity of the registration of the trademark” or to „the cancellation of the trademark”, the nullity has as object the „administrative legal act of the State Office for Inventions and Trademarks of registration of the trademark”. Likewise, it argues on the uselessness of some rules devoted to this action at law. -
In this study, the author carries out a critical analysis of the provisions of articles 508-534 of the current Civil Code (Law no. 287/2009, as republished on 15 July 2011 and which came into force on the 1st of October 2011), texts which regulate „the legal obligation to support”. Essentially, the author, after emphasizing a series of new judicious and useful regulations of the above mentioned texts of the current Civil Code shows at the same time numerous deficiencies of articles 508-534 of the Civil Code which has recently become effective and which, in his opinion, involves many amendments, supplements and even abolitions of the concerned rules. -
The study presents critical issues on contraventional complaints’ settlement procedure from point of view of Law 202/2010 regarding certain measures to accelerate the process. The reason for this amendment was obvious: the rapid settlement of trials far more numerous than in other matters also due a consequence of the fact the offenders’ procedural interest was that many times only that of suspension of the enforcement of fines and other sanctions imposed by the records of offense, suspension which, according to legislation in the matter, became effective by law upon the registration of the contraventional complaint until the date of the final and irrevocable judgment. In the second part of the study, the author has analyzed the nature of contraventional law given that offenses were removed from the criminal law and have undergone administrative arrangements. Issues of unconstitutionality by removing appeal in certain contraventional matters were addressed, arguing that thereby they have infringed art. 2 of Protocol 7, supplementing the (European) Convention on Human Rights and Fundamental Freedoms. In the final considerations, the author revealed that the ruling no. 500/2012 of the Constitutional Court case-law is a welcomed revival for the Romanian legislation arguing that it forces a reconsideration of the regulation on contraventional proceedings as a whole. -
Maybe some of the most controversial crimes, the rape and the sexual deviations, gave birth to numerous debates in the specialty literature, as well as in the doctrine, but also different, sometimes contradictory solutions in the legal practice. The author shows that not even the High Court of Cassation and justice succeeded to convince or end these controversies, even though that, through decision no. III/2005, tried to clarify the meaning of the material element of the rape crime. The lawmaker, through the incrimination norm of the rape and sexual aggression crimes of the new Penal Code tries to clarify and avoid, for the future, such issues. The present study highlights these possible problems and solutions. -
The paper is based on the non-uniform practice of the courts within the jurisdiction of the Court of Appeal Oradea, as well as from the country, referring to the following situations: the rejection of the proposal for preventive detention during the criminal prosecution; the rejection of the proposal for extension of preventive detention during criminal prosecution; the cessation de jure of the preventive measures; the revocation of preventive measures and the replacement of a preventive measure with other preventive measure. Within this paper the author deals with controversial aspects in the matter of judicial remedies concerning the preventive measures.
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This paper presents a brief analysis of the problems raised by the offence of theft. The authors emphasize, on the one hand, the close connection between these problems and some errors occurred in the civil theory of possession, and, on the other hand, some shortcomings of the current definition of the offence of theft. Similarly, there are presented some possible corrections, both at theoretical level and at legislative level.
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The purpose of imposing the criminal processual sanctions is to respect the principle of legality that governs the criminal trial. The principle of legality, established in Article 2 of the Criminal Procedure Code, is the fundamental principle of the criminal trial according to which the conduct of the entire criminal trial, namely in all its phases (criminal prosecution, preliminary chamber, judgment, enforcement phase), takes place strictly according to the provisions stipulated by the law. The effects of this principle are materialized in a series of processual guarantees, one of the most powerful guarantees of the fulfilment of the processual and procedural acts according to the legal rules being precisely the processual sanctions. The problems which arise in the practice in connection with the application and interpretation of the regulations incidental in the matter of criminal processual sanctions have led us to proceed to the elaboration of this study. -
The developments which the Romanian, European and international society has experienced, especially in the last decade, coincide with the 10th anniversary of our country’s accession to the European Union, requiring new approaches of the multiple dimensions which the integration process involves. The integration into the European Union, which has generated a series of changes at constitutional level, is also one of the objectives of Romania at international level. Likewise, the process of accession to the European Union has conferred to the Romanian citizens, inclusively, the right to participate in the European Parliament elections, both as candidates and as voters, according to Article 38 of the Romanian Constitution, republished. In this study, the author intends to discuss the problems of Romania’s accession to the European Union from the perspective of the constitutional provisions.
