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This study analyzes briefly the new rules of the private international law of the European Union applicable to cross-border insolvency, contained in the Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) and applicable in their large majority starting with 26 June 2017. The study presents the legislative history of cross-border insolvency in the Union, the context of the adoption of Regulation (EU) 2015/848 and the objectives aimed thereby. Similarly, there are briefly presented the scope of application of the Regulation, the rules on international jurisdiction, the main and secondary insolvency proceedings, the law applicable to insolvency proceedings and their effects, the recognition of the judgment for opening the insolvency proceedings, the insolvency proceedings applicable to companies of the group and the insolvency registers. -
This study proposes an analysis of the regulation of the institution of return by right of ownership of land located in the built-up area, with particular reference to the interpretation of the provisions of Article 25 (1) of the Law No 18/1991, amended, supplemented and republished. In the thematic approach, there are presented a series of reasons meant to clarify the legal content of the terminology of the text, emphasizing the jurisprudential meaning of the syntagms used by the legislator. Thus, the notions of reconstitution, constitution and return by right of ownership are analyzed distinctly, showing that the text of law in question is incidental both in the assumption that the agricultural cooperative of production has attributed lots for use in the gardens located in the built-up area of the former owners to third parties, cooperative members who were not the owners of that land, and in the assumption that such lots were attributed to the former owners themselves, who became members of C.A.P., either on the same site, in continuation of the 250 square meters of personal property, according to the regulations of that time (the dwelling house and household dependencies, the land on which they were located and the yard), or on another site in the built-up area. Some critical remarks are made on some approaches coming from a land fund county commission, but also from the court, which, in our opinion, did not take into account the conceptual efforts of the doctrine and the judicial practice in the matter. We are convinced that reading this study will effectively contribute to the reduction to evanescence of the risk of bringing prejudice to the real protection guaranteed by the legal order in the field of establishment, defence and exercise of the legitimate rights and interests of the persons covered by this text of law.
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Cererea formulată în temeiul art. 595 alin. (1) C.pr.pen., respectiv în caz de intervenire a unei legi penale noi după rămânerea definitivă a hotărârii de condamnare sau a hotărârii prin care s-a aplicat o măsură educativă, se adresează fie instanței de executare, fie instanței corespunzătoare în grad acesteia în a cărei circumscripție se află locul de deținere sau, după caz, centrul educativ ori centrul de detenție. Din perspectiva formelor competenței, cea reglementată potrivit art. 595 alin. (2) raportat la art. 553 alin. (1) C.pr.pen. este o competență funcțională (ratione officii) întrucât vizează o activitate ce se poate realiza strict de către instanța de executare ori de către instanța corespunzătoare în grad acesteia în circumscripția căreia se află locul de executare a pedepsei ori măsurii privative de libertate.
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After the First World War, six different systems of civil law were enforced in Greater Romania. The conflicts among these systems were settled through interprovincial law, carved by scholars and jurisprudence according to the Private international law template. This paper aims to present the choice-of-law rules and the jurisdiction grounds of the Romanian interprovincial law. The choice-of-law rules were organized according to the following principles: the status and capacity of persons were subjected to the law of the domicile of origin, movables and real estates were governed by lex rei sitae and the formal validity of legal act was subjected to the place where the act was concluded. The effects of acquired rights were subjected to the local law. Their enforcement was governed by lex loci executiones. Only the exclusive jurisdiction rules of the local law ought to be observed by the judge. For the rest of the jurisdiction rules, the local judge had to follow the jurisdictional grounds provided in the Civil Procedure Code of the Old Kingdom of Romania. The judicial decisions delivered in one province were enforced without exequatur in the other provinces.
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The legislative unification was the main national project of the Unified Romania. The necessity of achieving this project was emphasized starting right with the days immediately following the declarations of unification of the representatives of the three historical provinces (Basarabia, Bucovina and Transylvania) with the Old Kingdom, and the effort for its achievement continued, in a sinuous dynamics, until after the fatidic year 1940. With very few exceptions, the jurists across the country have declared to be in favour of the legislative unification, regardless of the fact that their opinion has been expressed from the chair, in university studies and classes, in the activity of the unification commissions or of the Legislative Council or in the pretorium of justice.
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Article 2 (3), respectively Article 4 (1) a) and b) (iii) of the Law No 213/2015 only indicates the general characteristics of the insurance claim and of the insurance creditor – the injured person, in that the indemnity must be based on the insurance contract and the damage suffered must be the consequence of the occurrence of a risk covered by an insurance contract of civil liability. Hospital units must demonstrate that the rights they claim have been definitively classed by a court as representing compensation due under an MTPL insurance contract to a person injured by the automobile accident. The court cannot give a further legal characterization of those rights (in the sense that the damage is not the result of the accident and that the compensation is not due under the insurance contract) because it would amount to contradicting the earlier judgment and to cancel an existing right recognized to hospital units. This right must be considered as complying with the provisions of the Law No 213/2015 and hence opposable, even by the effect of the Law No 213/2015, to the Guarantee Fund for the Insured.
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In this article, the authors analyze the legal rules of the Romanian law, with reference to those of the European Union and having regard to the national and European judicial practice, as well as the legal provisions in the comparative law on the interdiction to dismiss the pregnant employees. They point out to the inconsistencies in the national law and to the insufficient regulation, which creates confusions in the practice of the employers and of the courts, they note that our legislator did not make a full transposition of Directive 92/85/EEC and, unlike the law of other countries, it does not indicate all (exceptional) situations where the dismissal of the pregnant employees might still occur.
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In this study, the author brings back to memory a doctrinal discussion, inspired by the decision of a tribunal (seized as a court of judicial control), published by the „Romanian Journal of Law”, in two issues, in the period between 1983 and 1984, a discussion in which its protagonists, accepting the idea of an extensive interpretation of the provisions of the old Civil Procedure Code regarding the procedure of verification of scripts, concluded that this procedure may also cover the application for summons, in case that one of the applicants claims that he did not initiate the trial, the signature on the application is not his, nor did he mandate his brother (the co-applicant) to initiate the trial in his name. The doctrinaires have reached, in illo tempore, to the conclusion that the denial of the signature on the application for summons by the person to whom the document is attributed, in fact challenging of the quality of party to the trial, as an applicant, may be invoked, for the first time, also in the means of appeal, the court of judicial control following to submit the application for the procedure of verification of scripts. The tribunal has appreciated that the verification of the signature on the application for summons could only be made by its indictment as false and sending the case to the prosecutor. This point of view was not accepted by the person filing the recourse who considered that the proof of his statements could also be made through a procedure of verification of scripts of the document, before the civil court (which could order, if necessary, a graphological expertise to be made), not wanting to expose his brother, or himself, to criminal investigations. The fact that the second author involved in the discussion claimed the lack of consistency of the claim that the person filing the recourse has not acquired the quality of party (namely of appellant), since he could only exercise the recourse as a party (and not as a third party), has offered the occasion to the last two authors participating in the doctrinal discussion to make the distinction between the quality of party to the trial and the processual quality.
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Seen by Aristotle as a pure ornamental rhetorical figure, the metaphor is no longer intended in the 21th century to embellish poetical expression, but to generate new forms of access to knowledge, leading from a paradigm of expressive semantic regime to a semantic cognitive regime. It is considered today that the metaphor is not only related to the literary style, but to the whole of human sciences. Even the definition of the right has fuelled an abundant literature that is lost in the darkness of times, and which seems to have failed to reach a right conclusion, as lawyers still seek a definition for their concept of law. This is because the meaning of law, its force and its reason to be keep an irreducible part of mystery, a mystery derived, in part, from the fact that the right term is a metaphor and, like any metaphor, linguistically materializes the cognitive processes of communication and provides, by analogy, an imaginative support that binds it to an already familiar conceptual circuit.
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The article briefly analysis a series of implications of transparency principle in public procurement. Firstly, the article highlights a legal loophole determined by the absence of a legal definition of this principle in the main internal enactment. The practical applicability of this principle is shown both at the regulation level and the case law. To sum up, the transparency principle imposes drafting all the relevant information for an award procedure in a precise, clear and unequivocally manner and communication of the said information to all third parties. Transparency creates the premises of equality of treatment between bidders and subsequently allows an accurate verification of compliance with the said rules.
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The article proposes solutions in the case of concurrence between the reopening of the criminal trial in case of judgment in the absence of convicted person and the resumption of the time limit for appeal, and after an analysis of the two procedures and a comparative analysis of the ordinary and extraordinary means of appeal, it concludes that the reopening of the criminal trial is an extraordinary means of appeal.
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This study emphasizes that, from a substantial point of view, the criteria required to be fulfilled for cataloguing a deed as pertaining to the criminal domain are: the qualification of the deed in the domestic law, the nature of the deed and the purpose and the severity of the sanction. Formally, an official report of finding and sanctioning the contravention which represents at the same time also a criminal charge in the conventional sense must cumulatively include the description of the deed and the presentation of the legal classification. The effect of classifying the report of finding and sanctioning the contravention in the category of the criminal charge in a conventional sense is given by the fact that to the procedure for finding and sanctioning the contravention there are attached its own guarantees of a fair trial. The presumption of lawfulness of the report is compatible with the presumption of innocence only if it respects certain limits, taking into account the gravity of the stake and protecting the rights of the defence. The limits of the presumption of lawfulness of the official report, in the context of protecting the rights of the defence, are: the imperative that the deed be perceived directly, through its own senses, by the fact-finding agent and the exigence not to impose on the person concerned an impossible task, as regards the administration of the proof to the contrary.
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Part of EU law – both primary and especially secondary – waste problem is a complex multi-faceted one in its aspects. Since the first programs of action on the environment (EAP) – the first (1973–1977), the second (1977–1983) – to the last, the seventh such program (2013–2020) entitled A better environment for a better life, the challenge of waste is dealt with either issue on its own, or as part of wider objectives. Whatever the approach, solving subordinates to old or new principles of environmental law as formulated in the first EAP and then developed in other programs of action. These are: prevention is better than cure; EIA should be considered at an early stage of decision making; exploitation of nature by means of causing significant damage to the ecological balance should be avoided; scientific knowledge must be improved to allow for appropriate action; „polluter pays” principle, the polluter should bear the cost of prevention and environmental restoration after damage thereto; activities of a Member State shall not cause damage to the environment of other States.
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Achitare persoană fizică autorizată (avocat) pentru infracțiunea de evaziune fiscală. Nedepunerea în termen a declarației fiscale 200 pentru o perioadă de doi ani nu constituie infracțiune, ci contravenție. Sumele obținute din activități economice, dar declarate cu întârziere sau nedeclarate, pot fi impozitate cu ocazia controlului fiscal, în cazul în care documentele primare justificative, respectiv chitanțele și facturile, sunt întocmite, sunt disponibile și pot fi verificate. Nedepășirea plafonului pentru obligativitatea înregistrării contribuabilului ca plătitor de TVA poate fi dovedită prin mijloace de probă.
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Soluția legislativă cuprinsă în art. 345 alin. (1) din Codul de procedură penală, care nu permite judecătorului de cameră preliminară, în soluționarea cererilor și excepțiilor formulate ori excepțiilor ridicate din oficiu, să administreze alte mijloace de probă în afara „oricăror înscrisuri noi prezentate”, este neconstituțională. (Curtea Constituțională a României, Decizia nr. 802/2017 – cu notă aprobativă)
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Electoratul este o funcțiune politică, iar nu un drept. Indivizii au un drept anterior legei pozitive, și anume acela de a fi considerați ca cetățeni politici sau, cum spune Aristot, „omul este un animal social”, zoon potitikon1. Începând dela germanul Altusius, după cum stabilește Gierke, și până în timpurile noastre, doctrinarii politici consideră pe individ ca făcând parte integrantă din marele suveran, consideră voința lui ca alcătuind voința colectivă a corpului social, numit Stat. Locke, Rousseau, Blakstone, Barclay, Loyseau și alți cugetători, fiecare cu elementele ce le sunt personale, au format școală, și un corp de doctrină, susținut de o literatură vastă, întemeiază dreptul primar al indivizilor pe conceptul suveranităței legale. Suveranitatea, în accepțiunea ei juridică, „dă, după Esmein, opiniunei publice o forță superioară, o expresie precisă, o valoare juridică, o autoritate legală”.
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Prin arvonă (arrha)1 se înțelege ceea ce una din părțile contractante, în genere cumpărătorul (art. 1297, 1298 C. C.) sau locatarul (art. 1416), dă celeilalte, fie pentru a asigura executarea contractului (arrha confirmatoria), fie pentru a’și procura mijlocul de a se putea desista de el (arrha paenitentialis).
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The study starts from the premise that the research of the classical Romanian legal and administrative doctrine can offer solutions to topical issues of the public administration, such as public service matters. The historical analysis allows to identify the opinions of some authors who are representative for the public law of the interwar period in terms of the concept and of the characteristics of the public service, of the applicable legal regime, of the categories and forms of organization thereof. Thus, the public service appears as an activity carried out or authorized by the public administration in order to satisfy regularly and continuously a general interest of a national or local collectivity, an activity subject to a legal regime of public law.
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Throughout more than 150 years of constitutional history in Romania, the Romanian constitutions have provided the modality of engaging the liability of the ministers for their activity. This article aims to make a brief analysis of how it was regulated the liability of ministers in the various constitutions which Romania has adopted over time and of the relation between the political and legal liability of ministers in the Romanian law, starting from the practical realities of recent years. Although, traditionally, in the constitutional law it is made a clear distinction between the political and legal liability, in practice, the boundary between the two types of liability is questionable, especially from the perspective of the legal classification of these types of liability. If the political liability is considered to be that liability of ministers before the Parliament for their political activity which may result in the loss of confidence and the removal from the office of minister, the legal liability has in view how a minister should bear the consequences of the law, by his prosecution and indictment.
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The obligations in solidum represent a controversial category of obligations, the controversy existing both in the Romanian and in the French doctrine. The legislator that created the current Civil Code did not outline the legal regime of the obligations in solidum, these not being mentioned among the other complex obligations. It must be noted that the obligations in solidum constitute a separate category of obligational relations with a plurality of subjects, exception from the rule of division by the operation of law of the obligations between creditors and debtors, and therefore we have considered that it is however required that, in the future, the matter of these obligational relations should be clarified by the legislator, as a legal reality in the landscape of complex obligations, which is why we will further make a theoretical analysis thereof. In this study, the defining features and legal characters of the obligations in solidum, the scope of application and the legal effects have been considered, among others.
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The participation of a tenderer in insolvency in a procedure for the award of a public procurement contract is regulated, mainly, by the directives on public procurement and by the laws which transpose them in the Member States. Within the current generation of directives on public procurement, the exclusion of the tenderer in insolvency is still classified into the category of facultative reasons of exclusion. However, as an element of novelty, if a Member State of the European Union decides to turn this reason of exclusion from facultative into mandatory, the State has the right to regulate certain circumstances in which the contracting authorities are prohibited from excluding such tenderer from the procedure. Whenever such regulation is contained in the national acts of transposition of directives, the contracting authority becomes bound to establish whether the conditions that impose the maintenance of the tenderer the procedure are met. The Romanian legislator has chosen to regulate that the contracting authority can not exclude from the award procedure the tenderer that is in the phase of observation or reorganization, if certain conditions are met. Having in view this obligation to establish whether certain conditions are met in order to maintain the tenderer in the phase of observation or of reorganization, as well as the amendments brought by the new directives in the matter of exercise of the right of the contracting authority to request clarifications, it is important to determine the extent to which, under the influence of the new regulations, the assessment commission will have to take a proactive approach or not, in order to decide whether to exclude or not such a tenderer.
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In the present study we will try to find the answer to the question: „What can a natural person do when his/her right to the protection of personal data has been violated?”. The natural person having his/her habitual residence in Romania, who suffered damages in a cross-border context, will be taken as a reference system, in an attempt of „guiding” him/her to the competent authority for dealing with the judicial issues that have arisen. The legal basis for answering the question will be the Regulation (EU) No 679/2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. In the first part of the study the terms used to explain the right to the protection of personal data and its violation will be clarified, and in the second part the administrative and/or judicial ways that the natural person can follow in order to restore the violated right will be discussed.
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This study aims at performing a critical analysis of the Decision No 814/2015 of the Constitutional Court, by which the Court ascertained the unconstitutionality of Article 60 (1) g) of the Labour Code, which regulated the prohibition of dismissing trade union leaders, except in cases they committed serious or repeated misconducts. Also, the study puts forward a critical exam of the provisions regulating the prohibition of dismissing trade union leaders, emphasizing regulatory errors, by using historical arguments, and making consistent references to the relevant international and European legislation and case law.
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The emergence of the Law No 76/2012 for the implementation of the Law No 134/2010 on the Code of Civil Procedure had great influence on the Government Emergency Ordinance No 34/2006 on the award of public procurement contracts. The latter stated that, in the matter of claims for compensation for damage caused during the public procurement procedure, the way of attack is an appeal on law submitted within 5 days of the communication. Difficulties with the publication and entry into force of the Law No 76/2012 were felt because it provided that the appeal would be the remedy in the matter, but before it came into force, the Government Emergency Ordinance No 34/2006 was amended by the Government Emergency Ordinance No 77/2012 which was approved by the Law 193/2013 and which left unchanged the way of attack. To solve the problems related to the succession in time of the laws, the High Court of Cassation and Justice by the Decision No 20/2015 of 5 October 2015 on the examination of the appeal in the interest of the law formulated by the Board of the Suceava Court of Appeal determined that the appeal on law is the only way of attack in the matter. Problems of interpretation have not stopped here because, while the High Court has made compulsory the way of attack, it did not make any mention of the term of exercise. Thus, a non-unitary practice has emerged because some courts have considered that the term of exercise is that of appeal, i.e. 5 days, while others have applied the general term. In our view, the time limit for exercising the appeal on law cannot be considered to be 5 days, because in this situation it would only mean that there was a replacement of the term „appeal” with „appeal on law”, but the general term provided by the Code of Civil Procedure shall apply.
