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In this study, after a brief introduction on parental rights and obligations, the author examines, in the light of the legislation currently in force (Family Code – amended by Law no. 288/2007, and Laws no. 272/2004 and no. 273/ 2004), and in the light of the future Romanian Civil Code (published on July 24, 2009 but not yet into force), the status of parental rights and obligations, provided that the child has been legally entrusted to other persons, discussing, in this manner, with priority, the extent to which the parents are entitled to provide their consent to the marriage of their child (if the child is a minor) or to his/her adoption. -
The objectives of this study are to detect the situations that require the temporary exercise of the duties of the mayor by other persons and to examine the specific legal forms to be adopted in such situations. Specifically, these legal forms consist in the legal replacement of the mayor by the deputy mayor and the delegation of his attributions to one of the local councillors appointed by the local council. In the research undertaken, the particularities of the two legal forms of temporary exercise of the attributions of the mayor were emphasized, some procedural aspects regarding their adoption, as well as their consequences in terms of legal liability. -
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The article addresses the problems concerning the crime of child pornography, in general, but it also includes some special emphasis on the legal implications which the conduct of the minor who makes pornographic materials with his own person, without being coerced by another person, might have. The analysis is one based on arguments from the specialized literature, but also on solutions from the judicial practice. In particular, the author proposes the recognition of existence, in the case of the crime of child pornography, in all its forms, of a special main legal object aiming at the need to respect the public order and peace, and, in particular, of a secondary object formed of the social relations referring to the protection of minors and of t he social relations whose proper development is conditioned by defending the public morality. With regard to the special issue caused by the minor’s act of producing, storing, possessing or distributing strictly in private pornographic materials of himself, the author rightfully considers that this act should not be subject to criminal liability, but rather to the psychological counselling of the minor with regard to the implications of the beginning and the development of the sexual life and, respectively, of the consequences that such deeds may have on the normal sexual development of the child.
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The present study aims to detect the type of disputes that may arise during the conclusion, execution and cessation of public procurement contracts, as well as the specificity of the procedure applicable to these disputes. To that end, the premise of our approach is the distinction between the disputes concerning the award, conclusion and nullity of the contracts in question, which fall within the category of administrative disputes, on the one hand, and the disputes concerning the performance and cessation of those contracts, which are part of the scope of civil disputes, on the other hand. The conclusion of the study is that the procedure applicable to each of these categories of disputes has a mixed character (of public law and of private law) in which the weight of special rules differs depending on the nature of the disputes to which we refer. -
The attenuating circumstance of the challenge is provided by the Criminal Code in force in Article 75 (1) a). By the challenging act of illegitimate nature it is affected the physical integrity or dignity of the person, so that, although punished by the criminal law, the offender’s deed is merely a reaction, a disproportionate response to an illegitimate action or inaction. The challenge can only be retained if the conditions relating to the offence committed under the auspices of a powerful disorder or emotion, respectively the conditions relating to the challenging act are cumulatively met. Without claiming to exhaust the subject, the paper aims to emphasize also some controversies regarding: the proportionality and the time interval between the challenging act and the offence; the distinction between the challenge and some justificative causes or causes of non-imputability; the possibility of retaining the challenge concurrently with the premeditation.
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Due to the pandemic shaking the world in 2020, law enforcement and military authorities also faced the serious strain of often new or substantially larger than usual volumes of assignments. The workload of border police, public security, immigration authorities and administrative bodies has increased radically, but the Armed Forces are also strongly involved in performing the tasks. During the state of emergency and the following health crisis declared in Hungary, legislative rules differing notably from the „normal” legal order were introduced, affecting our daily lives, work, relationships, and of course, the lives and services of the officers working for the authorities subject to our study. In this document, we analyse the major changes affecting the „armed” sector within the legal framework related to the pandemic, and – due to its dogmatic interest – the hospital command system developed for the increased protection of healthcare supplies is also covered
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The execution of the warrant represents an essential element in the activity of the police bodies, which must make all efforts so as to arrest the convict. Throughout the article, the author describes the main controversies in the legal practice in relation to this area of activity, also making a critical examination of the legal provisions included in the current Penal Procedure Code, as well as in the new Penal Procedure Code. -
The author analyses some specific features of the claim for compensation brought by private persons injured by unlawful administrative acts of authority or by public authorities’ refusal to solve claims concerning rights and legitimate interests of citizens. The claim for compensation has an accessory and subsidiary character in relation to the main claim for the annulment of the administrative act of authority, the repair of the damage being conditioned by the annulment of the act or by the obligation of the public authority to solve the claim of the private person. The study points out that the accessoriality relationship between the claim for compensation and the main claim bears consequences with regard to the jurisdiction of administrative courts. -
In this study, the authors present a commentary of Article 145 of the Constitution, referring to the independence and the irremovability of the judges of the Constitutional Court. It is presented, in detail, the normative will of the Constituent Assembly on the status of the constitutional judges, the content of their independence and the irremovability which was conferred to them by the constitutional text. The judges of the Constitutional Court have at their disposal a legal framework, of constitutional rank, which guarantees their independence and irremovability and which, at the same time, imposes restrictions of professional nature. Within the same study, the authors also present the problems of the disciplinary and criminal liability of the constitutional judges, as well as the legal regime of immunity which they enjoy, according to the Law No 47/1992 on the organization and functioning of the Constitutional Court. -
The present study proposes for analysis some of the implications of the pandemic generated by the SARS-CoV-2 virus in the matter of the property right and not only, following to consider the property right in its broad sense, derived from the ECHR case law in the matter. As concerns the research hypothesis, the author starts from the premise that the inclination towards martyrology manifested throughout the history by our country determines that some particularly restrictive measures be adopted also in the context generated by the Covid-19 pandemic, the most often without a solid theoretical foundation. It is also considered, as a research hypothesis, that there is currently a trend worldwide towards authoritarianism and interventionism from the state government, which is reflected in the measures taken during this period in order to prevent the spread of the respiratory virus.
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The study reveals, in its introductory part, some shortcomings of Law No. 8/1996 on copyright and rights related to copyright, in the field of audio-visual works, such as the contested definition thereof or the absence of definition of the audio-visual production contract definition, and puts forth its own points of view, likely to lead to the settlement of such cases. On the merits, the work depicts the characteristic features of the audio-visual production contract, its delimitation as to other types of contracts, analyses the Contracting Parties as well as the purpose and wording thereof, in terms of legal regulations and doctrinal interpretations. -
In this study the author has analyzed corruption from the perspective of its legal implications on the business environment. A notion which appeared at the same time with the economic changes became in time a truly global scourge which has systemically affected the economic exchanges, the financial flows, the market economy. It symbolizes, after all, the poor functioning of the state which makes considerable efforts to control the economic and financial crime. In this context, the author has identified corruption acts and measures to combat them, also emphasizing the constant efforts at both state and international level, in order to combat this criminal phenomenon. -
This study analyzes a series of correlations between the current Civil Code (entered into force on October 1, 2011) and the legislation relating to intellectual creation (works, related creations thereof, databases, inventions, industrial drawings or models, trademarks and geographical indications). In this respect, following a series of considerations concerning the legal terminology in this field, the paper discusses the patrimonial intellectual property rights on the works and trademarks that each of the spouses registered, as well as on scientific or literary manuscripts, drawings, art and invention projects and other similar property, as well as on the revenues due under an intellectual property right. Finally, it draws some considerations related to private international law matters on the legal protection of intellectual creation. -
In this article, the author critically examines matters of criminal procedural guarantees for the injured person, the injured party or civil party, stressing their importance in the administration of criminal justice. In this context, topics on the rights of victims are depicted inspired from the principle of equality of arms, inferred from the (European) Convention on Human Rights and Fundamental Freedoms, the author making some suggestions on repairing the damage caused as a result of the offense. -
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The accession of Romania to the European Union on January 1st, 2007 also involved the need for harmonization of national legislation with the European one, which, inter alia, led to the elaboration of a new Criminal Code. This regulation covers some new elements, including the crime of harm to the unborn child, as provided for in Article 202 under the new Criminal Code, as an integral part of Title I of the Special Part dedicated to crime against the person. As stated in the Explanatory Memorandum to the new Criminal Code, by criminalizing such acts it was intended to cover a legal vacuum, i.e. to protect the fetus from the moment of the commencement of the delivery process until completion thereof. In the study hereby, the author examines from the criminal doctrine perspective, but also in terms of medical science, the meaning of the term fetus and the phrases “during childbirth” and “during pregnancy”, advancing some de lege ferenda proposals. -
This article presents the new criminal provisions relating to the cancellation and revocation in the cases of waiver of application of punishment, postponement of application of punishment and the suspension of the execution of the punishment under supervision. The author also proposes a new mechanism for the application of punishment if there is a concurrence between a cause of cancellation and one of revocation of the postponement of the application of punishment or of the suspension of execution of punishment under supervision. -
This study proposes a comparative analysis of the main economic and financial offences from their regulatory perspective, given the significant amendments of the Romanian criminal legislation occurred starting with 1 February 2014. The author makes a presentation of how the incrimination of these criminal acts has been amended, regardless of the relevant provisions, the Criminal Code or the special laws. He insists on the situations where amendments of substance occurred and it is analyzed their opportunity, as well as the effects reflected by the judicial practice. Similarly, critical notes are exposed, with the necessary arguments on some of these legislative amendments. -
The study deals with the analysis of innovative legal solutions related to the divorce proceedings covered by Law No. 134/2010 on the Code of Civil Procedure. Thus, it was envisaged the establishment of territorial jurisdiction of the Court in relation to the residence of the spouses or of one of them, filing of the action for divorce by the husband who, legally incapacitated, has discernment and the prosecution of the action for divorce by the plaintiff husband’s heirs deceased during the trial.
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In this analysis, the author carries out a study of the continued offence regulated by the Criminal Code of Romania, covering both theoretical and practical aspects, proposing different solutions in the determination of legal classifications according to the concrete circumstances of the cases. The analysis proceeds from the regulatory framework of the continued offence, continues with doctrinal references and argues or counter-argues with its own arguments, expressing the author’s own opinion. Particularly, when the conditions of the continued offence are analyzed, the one that regards the factual homogeneity of the material acts that form the legal unity of the offence is emphasized. -
One of the forms under which it is presented the right of joint ownership on forced quota-shares is represented, in the conception of the legislator that has created the current Civil Code, also by the periodic ownership. Placing this form of joint ownership within the joint ownership on forced quota-shares is the creation of the legislator, but it is not sheltered from criticism. Among the issues raised by the regulation of the periodic ownership in Articles 687–691 of the Civil Code is also the obligation of compensation and the exclusion, legal provisions upon which the authors of this study have insisted. The provisions of Article 691 of the Civil Code are criticizable both in the way they are formulated and in respect of the effects that the legislator has pursued. -
The authors review in this study the legal regime of receivables’ discounting, both in the Civil Code (of 1865, still in force), and in other special laws, as well as in the Romanian new Civil Code (Law no. 287/2009) or in the Romanian new Civil Procedure Code (Law no. 134/2010, neither law has entered into force yet), also considering the opinions expressed in the doctrine and in the relevant decisions of the case law. In this context, the authors reach the conclusion that indexation is compulsory, as it is in line both with the provisions of the Constitution of Romania and with the (European) Convention of Human Rights and Fundamental Freedoms. -
Law no. 272/2004 regulated – in the aggregate – the legal regime of protection and promotion of the rights of children in Romania. In the research hereby, the author conveys some viewpoints on the rules of law mentioned in relation to the exercise of parental rights and responsibilities when determining the special protection measure of placement by the child protection committee, committee settled by the same law. -
The autonomous collaterals are regulated, for the first time, by the new Civil Code, within the personal collateral, together with the parent guaranty. The law allots them a small portion, equally essential and simple, so that they may have substance and legal identity. But their legal regime can be essentially revealed through the extension of the analysis to the regulations in the field. The uniform rules for demand guarantees constituted by the International Chamber of Commerce from Paris and the Convention of the United Nations Commission on International Trade Law with respect to the independent guarantee and the stand-by letter of credit. The present paper analyses the legal regulation, the concept and the legal category of the autonomous collateral. The author’s objective is that of revealing its complexity as a legal fundamental instrument in the field of internal and international business.
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The author notices that the new definition of the material element of the objective side of the crime is clearer than the current wording. Unlike the current regulation regarding the sexual intercourse, of any type, in the new wording of the incriminatory rule, the lawmaker refers distinctively to the sexual intercourse, the oral or anal sex, in case of the form of crime, and distinctively to any other acts of vaginal or anal penetration, in case of the assimilated form of crime. The passive subject of the crime may be, in the new wording of the incriminatory rule as well, any person irrespective of gender, age, civil status, including the perpetrator’s wife. The aggravation of the crime is triggered by six aggravation causes, unlike the four in the current Criminal Code, following the provision of new forms of aggravation or the redefinition of aggravation causes in the case of rape against a relative in direct line or against a brother or sister; rape against a minor under 16 years of age; rape committed for producing pornographic materials; rape resulting in the injury of the victim. The incrimination of attempted rape proves the inconsistency of the lawmaker. The system of penalties provided by the new Criminal Code raises the question of enforcing the more favorable criminal law. -
The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with Art 325 of the Treaty on the Functioning of the European Union, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union’s institutions, bodies, offices and agencies. For this purpose, Member States shall coordinate their actions and shall organize, together with the Commission, a tight and constant cooperation between competent authorities and shall take measures to counter fraud affecting their own financial interests. Romania, by adopting Law No 78/2000 on preventing, discovering and sanctioning corruption acts, the Law No 161/2003 on regarding certain measures for ensuring transparent exercise of public dignities, positions and business transparency, by prevention and sanctioning corruption, the Law No 61/2011 on the fight against fraud department, Government Decision No 215/2012 on the National Strategy for 2012-2015 and other normative acts, has created the legal framework necessary for the protection of the European Union’s financial interests. -
This study is meant to clarify the content and the meaning of legal norms devoted to the protection of databases. The author presents and subjects to analysis the points of view of prestigious authors and his own relative to the legal nature of the rights arising from the creation of databases. This paper examines the elements of the legal relationship arising from the database creation: the subjects, the object and the content of the relationship, emphasizing the particularities and the specificity that shape its identity. However, the topic discussed is connected to the European case-law in the matter, precisely to highlight the manner in which it is raised the question of the relationship between the protection of databases in the area of copyright and through the sui-generis right of the creators of these intellectual creations. The author analyses databases in order to underline the fact that they are man-made creations, with an important role in the economic and social life and are more and more frequently exposed to unfair competition. Moreover, the article also offers starting points for specialists called to study thoroughly less known aspects of the legal protection of databases. -
In the study hereunder, the author makes some considerations regarding the patrimonial liability of public law legal entities for their offence of issuing injurious administrative instruments. In this regard, it is concluded that the identification of public law legal entities is essential, since only these may be liable against the prejudiced creditor, the public authorities issuing the injurious administrative instrument lacking legal personality cannot being patrimonialy held liable against the prejudiced person. As for the legal nature of liability, this is a special subjective liability (if the administrative instrument is illegal) and, respectively, unbiased liability, if the instrument causing prejudices was issued through an illegal administrative instrument. -
In this study the author makes an analysis of the institution of waiver of criminal prosecution, including from the perspective of other systems of law, of the conditions provided by law for ordering the waiver of criminal prosecution, as well as of other optional criteria of opportunity, which must be considered when ordering this solution provided by law. Likewise, he formulates some critical remarks referring to the practice of some units of the prosecutor’s office, the author also making some de lege ferenda proposals on some problematic issues. -
The author highlights the manner in which the observance of fundamental rights enshrined and guaranteed under the Charter of Fundamental Rights of the European Union is ensured by the national constitutional rules and the main provisions of the Civil Code, the Code of Civil Procedure, the Criminal Code and the Code of Criminal Procedure, as well as by domestic judicial courts that interpret and apply the domestic or European law, on a case-by-case basis. At the same time, the study also presents the case-law of the Court of Justice of the European Union relevant in the matter of ensuring access to justice, the right to a fair trial, as well as the relationship between EU law and the national law relating to judicial organization. In this regulatory and jurisprudential framework, the author considers that compliance with the Charter of Fundamental Rights of the European Union moves toward being enforced by national courts, along with the (European) Convention for the Protection of Human Rights and Fundamental Freedoms.
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The article presents some considerations regarding the procedural provisions related to the system of the means of proof, as it is regulated by the new Criminal Procedure Code. The author examines the new provisions establishing the enunciative system, in relation to the provisions of the Criminal Procedure Code in force, which establishes the completeness of the means of proof. -
In this article there are examined comparatively the time limit and the grounds for appeal provided in the current legislation and the previous legislation, as well as the regulation in force. Likewise, within this paper there have been formulated a series of critical remarks, as well as de lege ferenda proposals, which have in view the amendment of the provisions of Article 410 (1) of the Criminal Procedure Code. The paper can be useful for the academic environment, for the practitioners, as well as for the legislator. -
The author examines the concept of „seniority in magistracy according to the applicable laws (Law no.303/2004 regarding the statute of judges and prosecutors) by referring to the broader concepts of seniority at work, respectively, seniority in a specialty.
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In this article the author aims to analyze, from a constitutional point of view, the content of Article 24 of the Basic Law. The right to defence is a universal right enshrined in the most important international documents that have guaranteed, after the end of the Second World War, the suite of human rights and freedoms inherent and essential to human dignity. There would be no right to defence if there wasn’t a corollary right, the right for everyone to go to court, asking for justice when another person has violated their legitimate rights and interests. The society, the State has the same indictment right when a person violates the social values protected by a criminal law. In addition to the traditional justification for the regulation and protection by the State of the right to defence, its guarantee in a democratic society is also a requirement to respect a fair trial, in which the parties (plaintiff and defendant) must enjoy equal conditions for supporting their claims or defence. In other words, every accused person is entitled to defend itself and prove to the judge the inconsistency of the accusing evidence against him.
