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This study proposes a comparative analysis of the norms of incrimination which include under the incidence of the criminal law some deeds recognized as international crimes through conventions and treaties. The crimes included in Title XII – Crimes of genocide, crimes against humanity and war crimes in the Romanian Criminal Code and the Crimes against the peace and security of mankind, war crimes defined by the Criminal Code of the Republic of Moldova are studied by the comparison method. From the comparison made the author comes to the conclusion that both the Romanian legislation and the legislation of the Republic of Moldova have fully complied with the international provisions in the field of regulation of international crimes. In addition, it is appreciated that both states, through their own legislative regime, have taken steps to make the national laws uniform with the international regulations, in order to provide a unitary framework in respect of sanctioning of the international crimes. -
The author performs a detailed analysis of the characteristic traits of indictments under the new Criminal Code which are correlated with, related to or in interdependence relationship, as appropriate, with fraud, in view of similarities and disparities thereof, with frequent references to valid national legal practice and in relation to the new Criminal provisions. To that effect, there are dealt with, in particular in the light of their disparities, offences such as: fraud in the insurance field, encouragement of the perpetrator, concealment, omission of the referral, misleading the legal authorities, blackmail, theft, breach of trust, breach of trust by defrauding the creditors, unfair assistance and representation, influence peddling, issuance of counterfeit securities, forgery of foreign securities, counterfeiting of a technical record, perjury, false identity, but also the ones laid down in Article 84 of Law no. 59/1934 on cheques and in Article 271 points 1 and 2 of the Company’s Law no. 31/1990. Thereafter, in the case of the offences mentioned above, there are considered differentially, as appropriate, the subject of criminal care, the offence, the objective and the subjective side, forms, procedures and penalties provided for under the law. Also, the author does not hesitate to put forward his opinion on deciphering the legal wording of the offences under review or the sphere, in practical situations, of one or the other of the aforementioned rules of incrimination and to advance some of its own solutions and ideas. -
The new Criminal Code, bringing numerous novelties in the sphere of incrimination of the Romanian Criminal law, sets forth under Article 284 the sanctioning of an attorney’s act or of a person acting as representative in a legal business for failure to defend, in good faith and fairness, the rights and interests of the person represented, with the view to discriminate in favour of another person, with opposing interests.
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A special category of workers is represented, pursuant to the European and national norms, by the professional maternal assistants. In accordance with Article 1 of the Government Decision No 679/2003, these are natural persons, legally certified, who ensure, through the activity they carry out at their home, the raising, care and education necessary for the harmonious development of the children they receive in placement or in their custody. Although maternal assistants carry out their activity under an individual employment contract (of a special nature), they do not benefit by all the rights in their fullness which the other workers have. Thus, they do not have the right, only restrictively and with permission, to weekly rest, days off or rest leave. This situation is justified by the superior interest of their mission, that of ensuring the raising, care and education of children, their integration without discriminations in the family of the assistants. This is the reason why the European Court of Justice (Grand Chamber) has ruled (in the Romanian Case C-147/17) that the activity of maternal assistant does not fall within the scope of Directive 2003/88.
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In a democratic society, the legal legitimacy of the State and of the State’s power, of its institutions, but also the social and political foundations of the society as such, are generated and determined by the Constitution, defined as expressively as possible as being: „Fundamental political and legal establishment of a people” (I. Deleanu). The supremacy of the Constitution has as main consequence the compliance of the entire law with the constitutional norms. Guaranteeing the respect for that principle, essential for the state of law, is primarily an attribute of the Constitutional Court, but also an obligation of the legislature to receive through the adopted normative acts, in contents and form, the constitutional norms. Amending the Basic Law of a state is an extremely complex political and legal act with major meanings and implications in the social, political, and State system, but also for each individual. Therefore, such an approach should be well-justified, in order to respond to some well-defined social, political, and legal requirements and particularly in order to meet the principles and rules specific to a democratic constitutional and State system ensuring the stability and functionality it needs. These are some aspects of the contemporary constitutionalism in Romania which we are trying to analyze critically in this study, in order to make the distinction between ideal and constitutional reality. -
The liberty of the person is one of the most important social values, its importance requiring its protection by criminal law rules, in all the states with acknowledged democratic systems. Taking into consideration the content of the offense of deprivation of liberty in the new Criminal Code, the authors made a brief examination of these provisions and carried out a comparative analysis with the current provisions. The comparative analysis refers to the differences existing between the two accusations, differences noted in particular as regards the accusation of aggravated forms of this offense. The authors also carried out a comparative law examination proving that the illegal deprivation of liberty is an action regarded as an offense by all the countries, and that there are many elements of similarity, as well as certain insignificant differences between its content in various legislations. In the conclusions they formulated, the authors proposed the addition of other aggravated forms to the provisions of the new Criminal Code, forms that are in fact provided both in the current Criminal Code and in the legislations of other European Union countries. -
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. -
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. -
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. -
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. -
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 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. -
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 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 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 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 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 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. -
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 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.
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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 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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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 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.
