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The article is designed to examine the amendments introduced by the new Criminal Code in the matter of law enforcement in the territory. From this perspective, we notice that the principle of territoriality is supplemented with additional provisions for defining the notions of offense and territory. The principles of personality and reality were adjusted so that they could be effective, yet without burdening the judicial bodies uselessly, and the principle of universality of the criminal law was reformulated in order to apply only to the situations for which the Romanian State has undertaken obligations internationally. New elements were also introduced as regards the international cooperation legal instruments, such as the delivery of persons to another European Union Member State or to an international court, changes that seem justified in the light of international treaties to which Romania is a signatory party. -
En la generalidad de las legislaciones societarias actuales, se establece algún tipo de régimen que limita la realización de distribuciones a los socios por parte de la sociedad durante el transcurso de la vida social (durante societate)1. Este régimen forma parte de las medidas que se adoptan legalmente en las sociedades que limitan la responsabilidad de los socios2, para proteger ex ante o preventivamente a los acreedores sociales.
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The regulation of crimes in the field of the illegal removal and transplant of organs, tissues and cells of human origin at the level of each country is extremely important due to the big social danger of these crimes and the importance of the social values protected by their incrimination, values regarding the life and the physical and mental integrity of the members of society, as well as the respect due to the memory of deceased persons. In this respect, at the level of the European Union, the Directive 2004/23/EC of the European Parliament and of the Council, of 31 March 2004, on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells was adopted. There are numerous European countries in which the crimes in the field of the illegal removal and transplant of organs, tissues and cells of human origin are incriminated in the Criminal Code. Their experience should also be followed by Romania, where, at present, the field is regulated by Law no. 95/2006 on healthcare reform, as subsequently amended and supplemented.
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The author examines synthetically the changes brought to the institutional structure of the European Union by the Treaty of Lisbon. For this purpose, the author presents the essential institutional changes brought to: the European Parliament; the European Council; the Council; the European Commission (the Commission); the Court of Justice of the European Union.
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The author states that the criminal trial should take place with celerity, within a reasonable period of time, according to art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In this context, the submission by the defendants of applications to notify the Constitutional Court of exceptions of unconstitutionality that were previously dismissed numerous times represents an abuse of right committed for the purpose of procrastinating the resolution of the cases.
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As regards the possibility to maintain conditional release if, following a merger of penalties, a penalty equal to that from which the convict was released on parole is enforced, two solutions are possible. The first solution consists in deducting only the actually served penalty and incarcerating the convicted person again, and the second solution consists in considering the entire penalty served. The resolution of the controversy depends on the opinion adopted as regards the legal nature of conditional release.
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After examining the criminal rules contained in the Government Emergency Ordinance no. 202/2002, the authors formulate several proposals de lege ferenda regarding the crimes regulated by this piece of legislation.
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In this study, after a presentation regarding the establishment of the Commonwealth of Independent States (C.I.S.), in December 1991, the author examines: the legal personality of this international organization; its constituent bodies; the member states of the organization; CIS – present and prospects.
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According to the regulations of the Romanian pension law, persons who, prior to 1 April 2001, worked in the work groups I and II benefit of a series of easements at the calculation of pension rights, as well as of the reduction of the standard retirement age. In this study, the author examines a rich and interesting case law of the classification into the work groups I and II – according to Orders no. 50/1990 and no. 125/1990 issued by the Minister of Labor and Social Protection, the Minister of Health and the President of the National Labor Protection Commission, with the mentioning that, under certain conditions, these Orders also apply to the persons retiring subsequent to 1 April 2001, but who carried out activities classified in the work groups I and II (according to the above-mentioned Orders) prior to such date.
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This study deals with the issue of forced distinctiveness, a legal mechanism that is essential for the matter of the trade mark law, but which is not generally thoroughly treated in the Romanian specialized literature, despite the rich case law it generates. Forced distinctiveness refers to the situation in which a sign that is likely to be represented graphically, but which initially lacks a distinctive nature, acquires distinctiveness following its use. Throughout the study, the author examines the legal nature of forced distinctiveness, from the point of view of the Romanian legislation and the European regulations, with references to the essential case law in this matter. Thus, in the first part, the author reviews the signs likely to acquire distinctiveness by use and in the second part, he examines the conditions of forced distinctiveness, as well as the criteria on which the assessment of the competent authority is based.
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The Civil Code expressly introduces the porte-fort convention or the promise of another’s deed in Article 1283, regulation which takes over the institution which was created in the doctrine of the Civil Code of 1865. The current codification places the institution in the section regarding the effects of the contract, but in a subsection distinct from the one devoted to the consecration of the principle of relativity of the effects of the contract. Although the systematic treatment of the principle inevitably implies the exploration of the controversies on the real or apparent exceptions, the incorporation of the analysis of the porte-fort convention in this framework has made the novelty of this legal figure somehow obscured. This article intends to make a critical analysis of the porte-fort convention in the regulation of Article 1283 of the Civil Code also from the perspective of the comparative law, by pursuing in detail the legal regime in terms of notion, forms, nature, legal characters, conditions of validity and effects, as well as the applications of this institution. -
The author, starting from a personal opinion, expressed in a previous study (published in the year 2000), namely that the employment relationship of the public servant represents a typical form of a legal employment relationship, a relationship that, although different from the individual employment contract (the archetype of the legal employment relationship), is not yet essentially different from the latter and, consequently, from a logical and legal point of view, the employment relationship of the public servant is a basic component of the labor law (legislation), emphasizes afterwards that, in recent years, one can note, from the legal point of view, a continuous reduction of differences between the legal employment relationship of employees and that of public servants. Further on, the author presents the typology of the current legal employment relationships, namely: the legal relationship of employees (generated by the conclusion of the individual employment contract, regulated by the Labor Code); the legal employment relationship of public servants (generated by Law no. 188/ 1999 on the Statute of Public Servants or by some statutes regarding special categories of public servants such as, for instance, police officers, diplomats and consuls, customs personnel etc.); the legal employment relationship of career military personnel (non-commissioned officers and officers – Law no. 80/1995); the legal relationship of persons holding a public office position; the legal employment relationship of magistrates (whose statute is subject to Law no. 303/ 2004); the legal employment relationship between the cooperative company and the cooperative members (Law no. 1/2005). As regards this typology of legal employment relationships, the author believes it is fundamentally erroneous to limit the object of labor law exclusively to the legal employment relationship of employees (regulated by the Labor Code), and firmly believes that all the above-mentioned legal employment relationships are, in his monist vision of the labor law, components of the Romanian labor law, whose summa divisio is made of the common labor law (regarding the legal employment relationship of employees, based upon the individual employment contract that is regulated mainly by the Labor Code provisions) and, on the other hand, of the special labor law (comprising the legal employment relationships of civil and military servants, persons holding public office positions, magistrates and cooperative members), a special labor law focused on regulations other than the Labor Code, but for which the Labor Code still represents common law. -
The examination of the constitutionality of the Government Emergency Ordinance no. 134/2005 has significant implications as regards the legality of the activity of one of the fundamental institutions of the State, which was established for the discovery and punishment of corruption actions. The authors intend to bring clarifications regarding this matter and the need to remove any doubts regarding the complete constitutionality of the AntiCorruption General Directorate. -
The new Romanian Civil Code (Law no. 287/2009), voted by the Parliament, promulgated, and published (on 24 July 2009), but not yet in force, regulates the following matrimonial regimes: the regime of legal community; the regime of conventional community; the regime of separation of property. In this study, the regime of separation of property is examined, in the light of art. 360–365 and art. 370–372 of the new Civil Code. In this regard, the author examines the categories of property under the regime of separation of property; the personal property of the spouses, the common property per shares of the spouses; the use of one spouse’s property by the other spouse; the liability of spouses for the personal obligations.
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Taking into consideration that this is a matter in which there are serious controversies in the doctrine and multiple contradictory solutions in the legal practice, this feature (unity or plurality of passive subjects) should not be mentioned as a constitutive feature of the continued crime, thus suggesting the idea that the solution had the adhesion of the entire doctrine. In this respect, the solution of the criminal law in force, which defines continued crime without adding the mentioned feature, seems fairer to us than the solution provided by the new Criminal Code.
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Starting from the provisions of art. 51 of the Constitution of Romania (regulating the right to petition), of the Government Ordinance no. 27/2002 (ordering the public authorities and institutions to solve the petitions of citizens within 30 days after the date of their registration), corroborated with a series of provisions of Law no. 554/2004 on administrative claims, also taking into consideration the case law in the matter, the authors examine in detail the regulations in this field and, in the end, correlating all these facts, they tend to draw conclusions in the field examined.
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The presentation of the new civil law regulations in our country provides us with the opportunity for introspection in the legislations, case law and doctrine of other countries from which our lawmaker inspired. An example in this respect is the « administration of the property of others » which is an institution taken over from the Civil Code of the Quebec Province, Canada. From this perspective, the authors considered necessary and useful to make a presentation of the evolution and content of the institution in the « Québécois » Civil Code, in the current stage of reform in our country. They mention the civillaw nature of the legal system in this Canadian province and the work of its civil code re-codification, which was completed in 1994. The central subject of the article is the administration of the property of others, with the presentation of the administrator, the beneficiary, the forms of administration, as well as its termination. The authors briefly mention legislative provisions in this field in other countries as well. Moreover, under the analysis regarding the general nature of the regulation regarding the administration of the property of others, the authors also emphasized other provisions of the new Civil Code referring to this institution, such as the investments considered safe, the trust, the guardianship of a minor child, the taking-over of mortgaged property. The authors emphasize the importance of relating to the doctrine and case law belonging to the legislative system from which the new regulations in our Civil Code come and their adjustment to the social-legal life in Romania, taking into consideration its particularities.
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The authors examine criminal matters regarding prohibited practices in the area of competition from a comparative perspective. The study refers to the competition law in the European Union, in some of its Member States, in the United States of America, as well as in Romania.
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The enactment and coming into force of Law no. 221/2009 on political convictions and their related administrative measures, ruled during the period 6 March 1945-22 December 1989, generated a complex legal matter caused, in particular, by the lawmaker’s notion regarding the scope of application of the law, the scope of the persons benefiting of the special regulation and the stipulated civil procedural rules, derogatory from common law. From the perspective of the three ideas mentioned, the study aims at harmonizing the legal mechanism designed by the lawmaker, including through “de lege ferenda” proposals, for the purpose of achieving the deeply reparatory nature of the law towards persons oppressed for political reasons, during the communist period.
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Hungarian Police control the international transportation of passengers and goods passing through border crossing points according to various international treaties and contracts as well as the relevant Hungarian statutory instruments in force. According to these, personal, cargo and vehicle documents are checked. The proceedings and sanctions to be taken against those breaching international transportation regulations are defined in the legislation in force. Within the framework of the Road Transport Act1 there is the possibility of imposing a fine on the spot and impounding the vehicle until the fine is paid. In addition in the case of a vehicle containing livestock or perishable goods, the vehicle will be allowed to proceed following this check, but proceedings will be started against, and a fine will be imposed in the absence of the perpetrator.
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The author, addressing the examination of important issues regarding the regulation of the right of public property in the new Civil Code (adopted by the Parliament, published on 24 July 2009, but not yet in force), makes a comparative analysis of the regulations in this field (quasi-inexistent in the current Civil Code since the year 1865) recorded in the Constitution of Romania (republished in October 2003) and in Law no. 213/1998 regarding public property and its legal system. In the end, the author makes several proposals regarding this latter law (after the new Romanian Civil Code – Law no. 287/2009 – becomes effective).
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La France a instauré dès 19641 un système d’organisation et de gestion de l’eau par bassin. La planification résulte de la loi de 19922 avec la création du Schéma directeur d’aménagement et de gestion des eaux (SDAGE) à l’échelle du bassin et du Schéma d’aménagement et de gestion des eaux (SAGE) par sous-bassin3. En application des diverses directives communautaires ou de politiques spécifiques (risques, assainissement), ces planifications de base sont complétées par des instruments de gestion, des mesures et des programmes, à l’échelle du district hydrographique, du sous-district hydrographique. Cette planification a été enrichie d’autres outils de planification, le plus souvent à une échelle plus localisée (zone d’inondations par exemple).
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The present article analyzes, from a historical perspective, the debate concerning the export cartel debate from its birth in 1918 until today. There can be identified four different periods of the debate that revolve around the enactment of the Webb-Pomerene Act, the creation of the Bretton Woods institutions, the creation of the World Trade Organization and the July package decision of 1 July 2004. The article highlights the actors and the ideas that shaped the debate and the results that were obtained. While it is clear that the fairest solution to the issue of export cartels would be the prohibition of this practice, what is not clear is the path that would lead to the ban and the institutional framework that would support it afterwards. This paper thus proposes an approach for identifying the most affordable solution. It argues however that, before launching an institutionalized solution on export cartels, more in depths analysis is needed.
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The authors, examining the provisions of the Government Emergency Ordinance no. 51/2008 regarding legal public aid in civil matter, consider that, although this regulation does not comprise any provision regarding its incidence in relation to the payment of a security (due, according to art. 403 of the Romanian Civil Procedure Code, for suspension of the enforcement until settlement of the challenge to enforcement or of other application regarding enforcement), the rules and principles of the above-mentioned regulation also apply to the security mentioned, taking into consideration the provisions of art. 6 of the (European) Convention on Human Rights and Fundamental Freedoms, corroborated with the case law in the matter of the European Court of Human Rights in Strasbourg.
