This study has as object the incidental regulations in the matter of illegal border crossings and of asylum, as well as how they intersect, and it intends to find an adequate solution for what happens with the criminal prosecution, in the cases of fraudulent crossings of the state border, in the course of solving the application for being granted a form of protection submitted by the person who has illegally crossed the border. It is proposed the intervention of the legislator in the sense of introducing a rule which provides as cause of suspension of the criminal prosecution the situation where the person wanted for the fraudulent crossing of the state border has subsequently submitted an application for being granted a form of protection and is subject to the asylum procedure. The need for such intervention is motivated by the ineffectiveness of continuing the criminal prosecution and of the settlement of the case provided that, at the end of the asylum procedure, the person concerned can be granted a form of protection from among those recognized by the Law No 122/2006, the cause of non-punishment provided in Article 11 of this law being thus incidental.

The concept of material error is evoked in two texts of the Civil Procedure Code, respectively in Article 442 and in Article 503 (2) point 2. For the purposes of Article 442 of the Civil Procedure Code, according to the opinion unanimously accepted by the doctrine and by the case law, material error is the mistake slipped in the contents of the judgment, at the time of drafting, which does not affect the foundation or the legality of the solution pronounced by the court. The correction of such material errors is made according to a special procedure regulated by law, which has as its finality the correction of such errors slipped, at the time of drafting, within the minutes, the preambles, the recitals, or even within the operative part of a judgment, which may be a sentence, a decision or a minutes of the session. This category of material errors includes those related to: the name, quality and oral submissions of the parties, those of calculation, etc. The legal meaning of the concept of material error, within the meaning of Article 503 (2) point 2 of the Civil Procedure Code, is sensitively different from that attributed to this concept by Article 442 of the Civil Procedure Code. From this perspective, the material error is any essential and involuntary omission in relation to the situation existing in the file at the time when the court of recourse delivers the judgment. In other terms, the obvious material error concerns formal aspects of the recourse which had as consequence the wrongful settlement of this legal remedy. It is about that mistake made by the court by confusing some important elements or some material data and which determines the solution delivered. The doctrine defines the judicial error as the error of judgment committed by judges or by prosecutors in the course of conducting a judicial procedure. This error may be of law or of fact and in any system of law such an error stands as basis for exercising of the ordinary or extraordinary legal remedies.

This paper presents a point of view regarding the correlated interpretation of both articles 53 from the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter, ECHR) and the Charter of Fundamental Rights of the European Union (hereinafter, the Charter) in the context of EU accession to ECHR. Opinion 2/13 of the EU Court of Justice from 18 December 2014 establishes that there is no provision in the Commission’s project agreement for EU accession to ECHR that envisages to ensure a coordination between both articles 53, allowing Member States to provide for higher standards on human rights protection than ECHR or the Charter, which could entail the undermining of the primacy, unity and effectiveness of EU law.

In the Draft law drawn up by the Ministry of Justice, the offence of abuse of office provided by Article 297 (1) of the Criminal Code is defined simplistically and formally, without clarity, precision and predictability. According to the Draft law, any act of breach of the law, of a Government Ordinance or of a Government Emergency Ordinance by a civil servant is considered to be an offence of abuse of office, regardless of its gravity and of its consequences, because its legal content is not circumscribed. In order for the offence of abuse of office not to be confused with the other forms of civil, disciplinary, administrative, fiscal, material or contraventional legal liability, we have introduced in its definition the condition that the deed must be committed for material interests, and the damage must cause particular serious consequences. In this way, the abuses in the interpretation and application of Article 297 (1) of the Criminal Code will be completely removed.

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.

Conform prevederilor art. 396 alin. (6) C.pr.pen., instanța pronunță încetarea procesului penal atunci când există vreunul dintre cazurile prevăzute la art. 16 alin. (1) lit. e)–j) C.pr.pen. Unul dintre aceste cazuri, prevăzut de art. 16 alin. (1) lit. g) teza ultimă C.pr.pen., se referă la situația în care „a fost încheiat un acord de mediere în condițiile legii”. (Curtea de Apel Galați, Decizia penală nr. 1278/A/8.12.2016 dată în Dosarul nr. 1324/233/2016, cu notă aprobativă)

This study deals with the mediation in the criminal side of the trial. The legislator has limited the scope of application of the mediation in the criminal side of the trial to the offences in respect of which the criminal action is set in motion upon the prior complaint of the injured party and is extinguished by the withdrawal of the prior complaint, on the one hand, and to the offences in respect of which the criminal action, although set in motion ex officio, is extinguished by the reconciliation between the injured party and the perpetrator. The mediation procedure in the criminal side of the trial is marked by three stages: the pre-mediation stage, the stage of actual mediation and the stage of closing the mediation. The pre-mediation stage is marked by an initial moment, when the conflicting parties present themselves to the mediator, and by a final moment, when mediation is either accepted or refused. The stage of actual mediation takes place in the form of some mediation sessions and it concentrates the most important activity of the mediation procedure. After the mediation takes place, the procedure is closed by concluding an agreement between the parties as a result of the settlement of the conflict, by the mediator’s finding of the mediation failure or by the submission of the mediation contract by one of the parties. Within the mediation in the criminal side of the trial, three legal acts are drawn up: the mediation contract, the minutes of closing the mediation and the mediation agreement. The mediation contract ends at the final moment of the preliminary stage of the procedure, when the conflicting parties appear before the mediator. Upon closing the mediation procedure, the mediator draws up a minutes. It is mandatory to draw up the minutes, regardless of the modality by which the mediation procedure is closed. If the mediation is closed by settling the conflict between the parties, the minutes of closing the mediation procedure is doubled by a mediation agreement. In criminal matters, the mediation agreement in writing is mandatory.

The recent case law of the Romanian Constitutional Court gives shape to a new doctrine regarding the Court’s role in ensuring the national legislator’s compliance with the European Union’s competences. In order to identify the new doctrine’s background, the current article analyzes the evolution of the Romanian constitutional case law on the application of Union law. Subsequently, the current position of the Constitutional Court is extensively described, emphasizing both its immediate consequences and possible future developments.

This study concerns the manner in which the abuse of office provided by Article 297 (1) of the Criminal Code is presented in the Draft law drawn up by the Ministry of Justice, appreciating that the offence is defined simplistically and formally, without clarity, precision and predictability. According to the Draft law, any act of breach of the law, of a Government Ordinance or of a Government Emergency Ordinance by a civil servant is considered to be offence of abuse of service, regardless of its severity and consequences, because the legal content thereof is not circumscribed. In order not to confuse the offence of abuse of service with the other forms of civil, disciplinary, administrative, fiscal, material or contraventional legal liability, we have introduced in its definition the condition that the act be committed for material interests, and that the damage cause particularly serious consequences. In this way, the abuses in the interpretation and application of Article 297 (1) of the Criminal Code will be completely removed.

In this article the author intends to debate, from the perspective of the constitutional texts, developed in the Law No 303/2004, the complex problems of the status of prosecutors, especially since the legal nature of the Public Ministry is not definitively clarified, the legal texts, including the norms written down in the new Criminal Procedure Code, failing to configure the position of the prosecutor’s offices between the executive power and the judicial power. If, from the point of view of the constitutional role, the prosecutor is closer to the Executive (he permanently defends the general interests of society, the rule of law, as well as citizens’ rights and freedoms), from the point of view of the involvement of prosecutors in the activity of administration of justice of the courts of law, they share similarities with the judicial power, without being, however, part of it. From this perspective, the author analyzes, among others, the constitutional grounds of the status of prosecutors and their independence, shows why the prosecutors can not benefit from irremovability, presents the content and character of the authority of the minister of justice over the prosecutors, as well as the issue of incompatibility of the members of the Public Ministry.

In this study we intend to make an analysis of the contestation to the insolvency condition, namely the processual means that may be used by the debtor against whom an application for opening the insolvency procedure has been filed. In the light of a rich judicial practice in this area, we consider it appropriate to compare the legal provisions found in Article 72 of the Law No 85/2014, as amended and supplemented, with the jurisprudential interpretations, in order to better understand this means of defence made available to the debtor by the legislator. Thus, we will observe the nature and the conditions in which the debtor’s right to contestation may be exercised, the reasons which can be invoked and the evidence that he can use to demonstrate the lawfulness of his contestation, as well as the legal effects and consequences determined by this procedure.

Rațiunea vulgară ne spune că judecătorul espus electivităței timpurare nu poate avea principala sa însușire, aceea a independenției, garanția imparțialităției sale. Temerea și dorința, aceste două mobile cari au o înrâurire atât de mare asupra acțiunilor noastre, vor aduce o egală atingere libertăței morale a judecătorului, vor fi o piedică stăruitoare a îndeplinirii misiunei sale sociale.

This study aims to both emphasize the specificity of employment law amidst other fields of law from Romania and also contribute to the promotion and support the thesis of its autonomy. The formula of conception and drafting of the paper privileged the development of a concrete and detailed analysis over the studies of several authors, regarding the question whether certain legal institutions, characterizing employment law, can be construed and applied in light of the contractualism principle, specific to civil law. Essentially, we argued that certain rights, belonging to workers, i.e. the rights regulated under the law and applicable collective labour agreements, are not negotiable in light of Article 38 of the Labour Code. In addition, we argued that the dismissal legal regime is imperative, thus forming part of „the public social order”, as French scholars define this concept. Consequently, this qualification impedes, from a legal standpoint, all waiver in relation to the employers’ obligations of invoking and proving the existence of a legal and valid dismissal ground.

Respecting equality of rights, as well as obligation of non-discrimination, assumes taking in consideration the treatment that the law provides to those to whom it applies during the period in which its regulations are in force, legal treatment that cannot be different. This paper presents a very serious problem to be debated, for the resolution of which the solution consists in the analysis of the constitutionality and/or deficiencies of the law in relation to Article 3 of Law No 76/2012 for the implementation of Law No 134/2010 on the Civil Procedure Code, in particular in the situation of the Court being subject to time limitation in a suit in respect to Article 46 (1) of Law No 10/2001 regarding the legal status of buildings abusively appropriated between 6 March 1945–22 December 1989 (by which the suspensions can last indefinitely without becoming outdated, in the regulation of the old Civil Procedure Code). Further to be verified if the principle of non-retroactivity of civil procedure law – referring to the civil action being subject to time limitation in a suit – is compatible with Article 6 of the ECHR Convention that guarantees the right to a fair trial, and if individuals who are judged under the old law are discriminated against in relation to those who are judged under the rule of the new law and to which the privilege special time limitation in a suit within 10 years applies.

The Law No 136/1995 on insurance and reinsurance in Romania did not expressly mention that the insurer acquires a right of regress against the person responsible for causing the prejudice, but only that the former is subrogated in all rights of the insured or of the beneficiary of the insurance. The wording has generated some different interpretations in practice as regards the action of the insurer to the reparation of the prejudice, this being classified either as special action, founded on the civil tort liability, or as action of common law, based on the civil contractual liability. These interpretations have led to the express regulation of the action for regress within Article 31 (6) of the Government Emergency Ordinance No 54/2016 concerning the compulsory motor vehicle insurance for civil liability for the prejudices caused to third parties by vehicle and tram accidents, which has repealed the Law No 136/1995, but which does not have a law for adoption yet.

The Law No 136/1995 on insurance and reinsurance in Romania did not expressly mention that the insurer acquires a right of regress against the person responsible for causing the prejudice, but only that the former is subrogated in all rights of the insured or of the beneficiary of the insurance. The wording has generated some different interpretations in practice as regards the action of the insurer to the reparation of the prejudice, this being classified either as special action, founded on the civil tort liability, or as action of common law, based on the civil contractual liability. These interpretations have led to the express regulation of the action for regress within Article 31 (6) of the Government Emergency Ordinance No 54/2016 concerning the compulsory motor vehicle insurance for civil liability for the prejudices caused to third parties by vehicle and tram accidents, which has repealed the Law No 136/1995, but which does not have a law for adoption yet.

In this study we intend to discuss and to find a solution for the multiple aspects specific to the removal of application of the foreign law in the national law, but also to trace the influences of the European law on the domestic law. We will analyze in detail the independence of application of the foreign law from the condition of reciprocity, invoking the foreign law before the authorities of the forum, but also aspects concerning the contractual incorporation of the foreign law. We will define the notion of application of the foreign law and, likewise, we will subject to investigation the modalities in which this application occurs. In order to elaborate this study we will consider the relevant domestic law, the provisions of the international conventions concerning the application of the foreign law, the provisions in the matter of the European law, the legislation and the case law from different States, and we will raise for discussion the decision of the Constitutional Court of Romania No 294/2016 relating to the rejection of the plea of unconstitutionality of the provisions of Article 1.096 (1) c) of the Civil Procedure Code, which gives us a practical view on the subject-matter discussed.

The study deals with the manner in which the provisions of Article 227 (1) of the Criminal Procedure Code should be interpreted. It emphasizes that, although it should have been a relatively easy activity, by reference to the historical perspective, to the evolution of the texts which regulated this matter over time and to the rules set by the ECHR case law with reference to the preventive deprivation of liberty, reality proved that the judicial practice had encountered serious difficulties in interpreting and applying the provisions in question, with important repercussions also on other institutions in relation to the preventive measures. This doctrinal approach intends to analyze the different interpretations of Article 227 (1) of the Criminal Procedure Code and to propose a thoroughly reasoned manner of interpretation and application.