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Presumptions have been playing an important role in the civil trial, their necessity and utility being recognized both in the doctrine and in the judicial practice. Recently, in order to remove any doubt about the quality of means of evidence of the presumptions, the legislator of the Civil Procedure Code enumerates them among the means of evidence and, at the same time, establishes their legal regime, and the legislator of the Civil Code has extended the scope of the legal presumptions. The reason behind these regulations is based precisely on the necessity to find out the truth also in the cases in which the judge does not have available direct evidence. Certainly, as we have stated on another occasion, the presumptions are indirect means of evidence, as the conclusions drawn imply eo ipso the prior proof of a fact that is neighbouring and related to the unknown fact. As we shall further show, the Romanian legislator has understood to classify the presumptions into legal (established by law) and judicial or simple (left to the enlightments and wisdom of the judge), with the mention that, in this study, we shall refer in particular to the legal presumptions. -
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In practical situations with medical implications, the nature of the expertise must be established as a matter of priority. This matter involves a series of discussions on the differences between forensic expertise and specialized medical expertise. Nowadays, forensic expertise continues to be approached from an obsolete perspective, without detecting its limits in medical or legal matters. Highlighting the differences between the two categories of expertise and the shortcomings of the relevant legislation has major practical consequences. The utility of this study lies in terms of analyzing the legal significance of respecting the medical specialty and the object of the medical expertise – a new category of expertise, which seems to be of no practical use, despite its great importance. This respects the principle of medical specialty and takes into account also the level of development of medical science in the field of expertise. Adherence to incidental medical guidelines or protocols can be verified only by a specialized medical expertise, the only one able to analyze the compliance of the medical conduct. Instead, the limits of forensic expertise are revealed by its object, which is just another expertise in medical law, without encompassing the entire medical or legal matter, in a single specialty. The two types of work must be clearly delimited in judicial practice, for the full clarification of legal situations with medical implications, regardless of their nature. -
Globalization, the changing concepts of the family definition and the emergence of new medical techniques for conceiving children have led to the emergence of substitution maternity and the issue of inheritance rights for children born of such a procedure. At international level, no comparable moral or legal basis can be identified in this area. The creation of a common legal framework or the advancement of a large-scale international unification of substantive law or rules on the recognition of the effects of foreign laws seems to be a distant goal to achieve. The issue of the inheritance rights of children born of surrogacy motherhood is a very complex one and currently without legislative protection. On European Union level, European Regulation 650/2012 has been in force since 2012, but there are no provisions on the situation of inheritance rights deriving from a surrogacy contract. The study aims to analyse the general concepts recognised in international, European and national law with regard to the creation of a legal framework as structured as possible for the protection of the inheritance rights of children born of substitution maternity, and to understand how this medical practice works. Another objective will be to analyse the decisions of the European Court of Human Rights, the decisions of the Court of Justice of the European Union and the national courts decisions, in order to find solutions on how to protect inheritance rights in such a situation. -
Proportionality of the enforcement measures constitutes, in essence, a fundamental principle of the civil enforcement procedure, which, although it does not have a regulation in terminis recognized in the Civil Procedure Code, already knows, at regulatory level, the valences of a principle, following only to be assimilated by the doctrine, by the practice and, consequently, by the legislator. Although it could be argued that proportionality is subsumed to the general principle of the right to a fair trial, we consider that it claims its own individuality at the level of the fundamental thesis leading the enforcement process, as compared to the specificity of the measures involved, the fairness of the procedure following to be appreciated by reference to the level at which all the other principles are observed, being a corollary thereof. The procedural guarantees which they enjoy, the remedies and the legally recognized consequences are elements that turn, therefore, the proportionality of the enforcement measures into a basic principle of the enforcement, on which a fair procedure is built, thus giving full expression to the valorisation of the rights and fundamental freedoms of the individual. -
The article addresses the newly introduced legal institution of verification of the legality and lawfulness of protective measures during the criminal trial, which institutes the obligation of the criminal judicial body to periodically analyze whether the legal and factual grounds on which it was previously taken or maintained continue to exist, following to be ordered its maintenance, cancellation, extension or limitation. Through the novelty of the subject under analysis, the study will contribute to the outlining of the guidelines of judicial practice in this unique legal matter. -
Adopted in the 1922–1926 legislature, the Constitution of 1923 was indispensable for the project of legislative unification of Romania. Its norms impose unique fundamental principles and rules for the entire national legal system: the principle of national sovereignty; the principle of legality and supremacy of the Constitution; the interests of the social community may take precedence over individual interests in the matter of property right. The regulation of some unique institutions for the entire Romanian State ensures the unitary exercise of constitutional competences, and the regulated rights for all Romanians ensure a unique foundation of freedom and equality. Other provisions have a strong unifying role and each provide a point of constitutional support for future legislation. The supremacy of the constitutional norms in the system of legal norms, supported by the case law of the unique supreme court, but also the beneficial psychological effect determined by the constitutional unification complete the picture of the impact of the constitutional norms from 1923. -
The study analyzes the provisions of the Law No 114/2021 on some measures in the field of justice in the context of the COVID-19 pandemic in civil cases. The mentioned normative act provides the conditions for conducting the court hearings in the civil trial by videoconference. The conditions are the following: to be decreed the state of alert instituted in order to prevent and combat the effects of the COVID-19 pandemic also for a period of 30 days from its cessation; to be about a civil case; to have the agreement of the parties in this respect; to have the possibility; the approval of the court of law. The Constitutional Court, by the Decisions No 157/2020 and No 457/2020, has established that the justice cannot stand still, not even during the COVID-19 pandemic, under this requirement the legislator regulating by the Law No 114/2021 the manner of conducting judicial proceedings during this period. However, the legislator did not rise up to the standards imposed by the Constitutional Court of Romania, in the sense that it did not regulate an effective way of access to justice, in the situation where the objective pandemic conditions restrict this possibility. Although we appreciate positively the provisions of the Law No 114/2021 referring to the development of the civil process by electronic means, we consider that the measures ordered should be generalized and not applied, as provided by Article 1 (2), only for reasons generated by the COVID-19 pandemic.
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In any democratic state the activity carried out by the body of magistrates must be limited exclusively to the law and in compliance with the Constitution, because, otherwise, those judgments pronounced by ignoring these requirements, the fundamental rights and freedoms of the citizens, may lead to the commission of some judicial errors, through which the litigants suffer both from damage of material, but especially moral nature.
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In ipoteza în care s-a realizat un transfer electronic al unei sume de bani ca urmare a solicitării primite din partea beneficiarului sumei respective, atunci între părți a intervenit un contract de împrumut, restituirea sumei poate fi solicitată doar pe calea unei acțiuni personale întemeiate pe respectivul contract, iar nu pe calea unei acțiuni întemeiate pe îmbogățirea fără justă cauză. (Curtea de Apel București, Secția a III-a civilă și pentru cauze de minori și de familie, Decizia nr. 62 din 26 ianuarie 2021)1 .
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Article 78 of the Civil Procedure Code, paradoxically, evokes through its title an apparent exception to the principle of availability, however, through its content, it constitutes a confirmation of this principle. Given this apparent contradiction, it must be clarified whether, in the case provided in Article 78 (2) of the Civil Procedure Code, the party requesting the introduction of the third party in the trial after the judge has questioned the necessity of its introduction may formulate any new heads of claim involved in the enlargement, in this way, of the procedural framework. Also due to the phrase „ex officio” attached to this introduction, it must be concluded whether, for these possible new heads of claim, related to the introductory request, the requesting party must pay judicial stamp duty or, due to this reference to officiality, the party is exempted from such obligation. It must also be established whether to these new heads of claim it can be opposed the exception implied by the sanction of loss, referred to in Article 204 of the Civil Procedure Code, in the conditions in which they would be related to the introductory request.
