-
The author reveals a series of analogies, contradictions between Articles 98-103 of the new Civil Code (Law No. 287/2009 republished on July 15th, 2011 and effective since October 1st, 2011) and Law No. 119/1996 (republished on November 2nd, 2009) on the civil status documents, situation which, on the one hand brings about a series of difficulties as regards the correct interpretation and enforcement of the law, and, on the other hand, is in breach of the rules of principle of Law No. 24/2000 laying down detailed rules on the legislative technique for drafting regulations (republished on April 21st, 2010). -
In essence, the article emphasizes the inconsistent practice of the courts, as regards the consequences of changing the legal classification of the criminal offence – the subject matter of the judgment – by indictment, an action of initiating proceedings before the court, on the means of appeal in the criminal trial. The legal matter under discussion takes into consideration the impact of the provisions of art. 361, paragraph 1, letter a) of the Criminal Procedure Code and of art. 3851 paragraph 1, letter d1 of the Criminal Procedure Code, according to which the judgments regarding criminal offences for which the initiation of criminal procedure is carried out following the preliminary complaint of the injured person cannot be challenged with an appeal, but only with a second appeal . Thus, in relation to the new legal classification of the criminal offence – the subject matter of the judgment – the means of appeal that can be used in such criminal cases must be established. In our opinion, in case of changing the legal classification, the legal classification given to the criminal offence – the subject matter of the judgment – by the court whose decision is subject to judicial review is decisive in establishing the means of appeal. -
In this study, the authors emphasize some aspects of administrative practice on marriage before attaining the legal minimum marriage age provided by law. These comments relate in particular: lack of consistency in preparing related applications relating to request age waiver; superficiality shown on preparing, presentation, or acceptance of reasons for the foundation of this marriage; the proceeding and the method when this marriage is accepted by the parents, tutor or other person or authority/ institution empowered to exercise parental rights. These critical remarks are correlated and reasoned with the legal provisions, offering their views on the administrative practice. -
-
The article sets under review the opportunity to pursue criminal action as an institution of novelty in the field of criminal procedure, by the Prosecutor’s possibility to assess the existence of real public interest in carrying out the investigation and to rule, subject to certain conditions, upon the solution of abandoning criminal prosecution, provided that practical circumstances of the offence committed reveal that this interest does not subsist.
-
The author’s approach is intended for a partially critical analysis of the Decision of the Constitutional Court No 225 of 4 April 20172, by which the phrase „likely to prejudice the prestige of the profession” within Article 14 a) of the Law No 51/1995 was declared unconstitutional. The Constitutional Court has held that the criticized text is devoid of precision, clarity and predictability, as it does not circumstantiate the scope of the offences likely to cause the unworthiness in the profession of lawyer. The author considers that this solution of unconstitutionality makes an exaggerated interpretation of the incidental legal provisions, unduly restricting the right of appreciation of the competent structures of the professional organization of lawyers and of the judge called to settle any possible disputes. Within this study it is noted that there are various other situations in which the right of appreciation of the judge can not be challenged in our legal system. The approach included in this study also insists on the consequences which can be determined by the analysed solution of unconstitutionality, due to the existence of some identical or very similar provisions in respect of other liberal legal professions as well. A cavalcade of pleas of unconstitutionality, based on similar considerations, could raise for discussion other important institutions of law as well, such as those concerning the disciplinary, contraventional, civil or even criminal liability. -
În cauza dedusă judecății apelantul a susținut că nu se justifică măsura evacuării sale din locuință, întrucât această măsură îl împiedică să participe la anumite evenimente din viața fiicei sale și să păstreze relațiile personale cu aceasta. Însă atât timp cât aceste relații nu au fost interzise de către o instanță judecătorească, iar autoritatea părintească este exercitată în continuare, în comun, de către ambii părinți, în mod egal, conform art. 503 alin. (1) C.civ., tatăl apelant nu este afectat în exercitarea drepturilor și obligațiilor părintești, decât în mică parte, prin măsura evacuării din locuința familiei, întrucât există multe alte modalități pe care le are la dispoziție pentru menținerea relațiilor cu minora, chiar și în această perioadă în care este instituită starea de urgență. (Tribunalul Galați, Decizia civilă nr. 229 din 27 aprilie 2020, definitivă).
-
The importance of distributing of the amounts in the insolvency procedure is unquestionable. Practically, only at this point in time, the purpose of the insolvency procedure from the point of view of creditors can be palpable and achievable by covering their claims. The legislator’s imperativeness in relation to the order of payment of the claims, respectively of the distribution of the amounts obtained from liquidation, found in the legal regulations, is based mainly on the economic, social, humanitarian and juridical aspects of each type of claim and on the impact that the insolvency procedure, respectively the recovery or non-recovery of claims, may have on each category of creditors. In the context of the entry into force of the Law No 85/2014 on the procedures for preventing insolvency and for insolvency, we propose to analyze the procedure for the distribution of amounts and the order of payment of claims, in a comparative overview as to the old regulation, by emphasizing the notable differences in this field. At the same time, we will perceive this study by structuring it depending on the order of distribution of the amounts within the two fundamental categories of claims, namely the guaranteed claims and secured claims
-
In this study, the author analyzes, in the light of the Convention for the Protection of Human Rights and Fundamental Freedoms, the manner of observing the principle of impartiality of the Romanian judges within the national procedures regarding the establishment and functioning of the associations and foundations. Within the introductory section, general elements regarding the freedom of peaceful assembly and association are presented, according to Article 11 of the Convention. Subsequently, the relevant provisions of the Government Ordinance No 26/2000 on associations and foundations are emphasized. Their analysis, from the perspective of the civil side of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms,considers the minimum standard imposed on Romania by this treaty. After presenting the conventional reference provisions applicable at the level of the Member States of the Council of Europe, the author demonstrates the lack of a hermetic delimitation between the subjective impartiality and the objective impartiality of the national judge, in the analyzed hypothesis. At the same time, it is outlined the need to respect the role of neutral arbitrator of the court. Based on the rich case law of the European Court of Human Rights, the author manages to capture the shortcomings of the national regulation. This study includes both a theoretical and practical debate on the obligations and responsibility of the Romanian state, according to the Convention, and a proposal de lege ferenda, in order to respect the principle of impartiality of judges. In relation to the large number of case files registered annually by courts of first instance, regarding the establishment and functioning of associations and foundations, the study is also an alarm signal, in order to avoid the responsibility of the Romanian state, according to the Convention for the Protection of Human Rights and Fundamental Freedoms. -
-
Paulian action represents, alongside oblique action and direct action, one of the most important means of protecting creditors in general. However, unlike direct actions, this legal mechanism provides general protection to all creditors, not just a few that are mentioned by the law. Against this backdrop, in the light of economic development and the many contracts concluded lately, especially in recent years, the knowledge of rights and the means of creditor protection should be of interest to all creditors. Unfortunately, although the paulian action is expressly provided for by law, creditors rarely resort to this legal mechanism to ensure the protection of their own claims. This reluctance is likely to arise from the fear of a long and cumbersome move to promote a litigation in the form of a paulian action. From this point of view, we hope that the present study will provide practitioners, theorists, and creditors with detailed information about this legal mechanism, to encourage the promotion of a paulian action whenever borrowers act against patrimony in order to avoid enforcement.
-
Stipulation for another and direct actions are two topical legal mechanisms that, although in theory are clearly explained, the judicial practice is hesitant in their application. At the same time, due to the multitude of similarities regarding the effects of these legal mechanisms, a confusion has been created in numerous situations both in terms of their legal meaning and their applicability. As such, a comparative study of the two legal notions contributes and facilitates the substantiation in law of the stipulation for another and of the direct actions, but also the way of application in the judicial practice. In the present study we mainly focused on presenting the origins of the stipulation for another, but also on its application over time, so far, concluding with a comparison with the direct actions, regarding the main effects of the two legal mechanisms. We hope that the judicial practice will outline in time a more effective differentiation of the two notions with a wide spread in the fields of law. -
Given the fact that „the annual EU budget incurs losses over 500 million euros due to fraud”1 establishing a European Public Prosecutor’s Office in order to combat offences that affect the financial interests of the European Union is deemed as a necessity. The difficulty of conducting cross-border investigations by national judicial bodies and the deficiencies of the international judicial cooperation in criminal matters require the creation of such an authority with exclusive jurisdiction in conducting acts of criminal investigation, prosecution and bringing to justice of those who are guilty of committing specific offences that affect the financial interests of the European Union. -
În situația în care, pe perioada procesului de divorț între pãrinți, minora a fost încredințatã mamei prin hotãrâre judecãtoreascã, iar mama o influențeazã pe minorã sã refuze contactul cu tatãl ei și, în același timp, mama refuzã sã execute sentința judecãtoreascã prin care s-a stabilit programul de vizitare a minorei de cãtre tatã, instanța este în drept sã oblige pe ambii pãrinți sã se prezinte cu minora la centrul de consiliere (psihologicã) din cadrul direcției generale județene de asistențã socialã și protecția copilului (cu notã aprobativã). -
The correlation between parliament and democracy is a classical one. It has been proven not only by the beginnings of parliamentarism, related to limitation of the omnipotence of the monarch, but also by subsequent developments, especially in the generalization of universal suffrage, but also by the historical experience of the previous century, when the collapse of totalitarian or authoritarian regimes has always been followed by the return to parliamentarism or to a political system in which Parliament’s role is essential. After joining the European Union, its role was enhanced by its involvement in the European decision-making process by means of monitoring the compliance with the principles of subsidiarity and proportionality of the proposed EU legislation or of the implementation of directives into national law. -
This study provides a detailed and systemic analysis of the provisions of Article 358 of the Civil Code referring to the partition of common assets jointly owned by the spouses during the community matrimonial regimes. More specifically, it is analysed the possibility to extend the provisions of Article 358 of the Civil Code also over the partition of per-shares common assets of spouses, as well as the applicability of the provisions of Articles 669–686 of the Civil Code within this partition. Likewise, there are distinguished the elements of continuity and those of novelty of the present regulation, referring to the partition of jointly owned common assets during the community matrimonial regimes, in relation to the regulation previously established by Article 36 (2) of the Family Code. Finally, there are expressed some critical opinions in connection with the provisions of Article 36 of the Law No 71/2011 implementing the Law No 287/2009 on the Civil Code referring to the application in time of the provisions of Article 358 of the Civil Code. -
Accepting co-authorship in the commission of acts with basic intent has represented, sine die, a permanent struggle for scholars since the adoption of the 1968 Criminal Code. Both the literature and the judiciary have had divergent positions. In the present paper, the purpose is to assess all factors that can lead to a positive or negative answer to the question: Is co-authorship compatible with basic-intent? The analysis will be divided: the national status-quo versus the alternative solution, respectively the German one. In the national arena, the existing arguments and the foundations for the possible envisioned outcomes will be discussed. Within the German framework, the institution of Nebentäterschaft will be assessed in a comparative approach, underlying similarities and differences when compared to the Romanian framework. Finally, a personal note will be added to the mix.
-
In this study, the two authors examine certain particularities of the commercial mandate contract existent between the managers of joint-stock companies and the given companies, with the specification that the term “managers”, in the above context, applies exclusively to the managers referred to under art. 143 paragraph 1 of Law no. 31/1990 regarding companies, republished on 17 November 2004 (those whom the Board of Directors delegated the management of the company and who, as the case may be, can be appointed among the directors or from outside the Board of Directors), and not to members of the directorate (existent in joint-stock companies organized in dual system) or to “specialized” managers, who are not representatives of the social will, but run certain specialized compartment.
-
In this study, the two authors examine certain particularities of the commercial mandate contract existent between the managers of joint-stock companies and the given companies, with the specification that the term “managers”, in the above context, applies exclusively to the managers referred to under art. 143 paragraph 1 of Law no. 31/1990 regarding companies, republished on 17 November 2004 (those whom the Board of Directors delegated the management of the company and who, as the case may be, can be appointed among the directors or from outside the Board of Directors), and not to members of the directorate (existent in joint-stock companies organized in dual system) or to “specialized” managers, who are not representatives of the social will, but run certain specialized compartment.
-
The study shows that Article 291 of the Criminal Procedure Code, with the marginal name „Referrals made by persons in management positions and by other persons”, provides a sui generis way of referral to the criminal prosecution bodies, separately from the complaint, denunciation and ex officio referral. It is appreciated that the text establishes an obligation to refer the matter to the criminal prosecution body, particularised by subject and object. The subject of this obligation is, among others, any person who exercises a service of public interest for which he has been entrusted by the public authorities. This description corresponds to the notion of civil servant, within the meaning of Article 175 (2) of the Criminal Code. The judge pertains to this category, by the fact that he exercises a service of public interest and by the fact that he has been entrusted by the public authorities to exercise it. Consequently, it is shown that subject of the obligation to refer the matter to the criminal prosecution body is an offence about the commission of which the judge has become aware in the exercise of his duties. The article also notes that Article 346 (7) of the Criminal Procedure Code is mandatory for the preliminary chamber judge, but the extent of this obligation is limited by the need to comply with Article 354 (2) of the Criminal Procedure Code. Thus: as a rule, the preliminary chamber judge who ordered the commencement of the trial has the obligation to join the composition of the judicial panel that exercises the judicial function; by way of exception, if the preliminary chamber judge that has ordered the commencement of the trial is prevented by an objective cause from joining the composition of the judicial panel, he may be replaced with another judge. The sanction of the violation of Article 346 (7) of the Criminal Procedure Code is the absolute nullity arising from the non-observance of the rules regarding the composition of the judicial panel. It is appreciated that absolute nullity is incidental, since Article 346 (7) of the Criminal Procedure Code is violated, in two hypotheses: the preliminary chamber judge who has ordered the commencement of the trial is not also the judge who exercises the judicial function, and this is not caused by any impediment; the preliminary chamber judge who ordered the commencement of the trial is not also the judge who exercises the judicial function, and this is caused by a non-objective impediment. -
This paper aims to make an analysis of the judicial trials and applications related to the insolvency procedure, from the perspective of the subjects of law who have legal standing in these cases. Having in view general notions and principles of the lawsuit, as well as derogatory provisions provided by the current insolvency law, there have been analyzed relevant aspects referring to the notion of processual parties in these cases, the delimitation of the notion of participants in the insolvency procedure, the criteria for determining the parties and the subjects of law which may be parties in these cases. In relation to concrete applications, actions and contestations related to insolvency, there have been presented not only the manner in which participate in the trial the subjects of the procedure between which there are established litigious legal relations brought to justice (the debtor and the creditors), the judicial administrator and the judicial liquidator, but also the persons who, as they are not participants in the procedure, acquire processual legitimacy in certain determined litigations. -
-
The establishment of the European arrest warrant at the European Union level, which actually replaced extradition, is, without any doubt, an important success of the Member States in the fight against cross-border crime. The execution of a European arrest warrant by the relevant Romanian judicial authorities, in the case of cross-border crimes, involves several specificities of this type of crimes, with direct implications over the entire European judicial system. The specificities identified by the authors in the paper include the execution of the mandate, even when the double crime condition is not fulfilled, the possibility of the Romanian competent courts to order the execution of a European arrest warrant, even when the crime for which the execution is demanded does not have the same name as in Romanian, the possibility of the relevant Romanian court to order the execution of the European arrest warrant, even if the crime for which such execution is requested is not provided by the Romanian law, but the content of the crime provided by the Member State law has similarities with a crime provided by our legislation etc. The analysis also revealed certain aspects related to the need to amend and supplement the special law (and the European piece of legislation) that should in line with the European legislation in the field.
-
The study addresses issues specific to the object of probation in appeal and emphasizes that, naturally, the object of the probation in appeal specializes as a result of the concrete manner in which there will operate the devolution determined by the holder of the legal remedy and the reasons on which it is based. At the same time, it is shown that formulating an request for evidence with a clear and concrete indication of the evidentiary thesis covered by each requested evidence is very important because only in this way it can be really made an assessment on the usefulness and on the relevance of that evidence. The author also emphasizes another reason why the indication of the evidentiary thesis is important, meaning that in its absence or in the case of indicating some generic theses the assessment on the legality of the evidence can be impeded and it is analyzed the situation of being requested to be heard as witnesses persons that are under the incidence of some legal norms that require them to maintain professional secrecy, such as magistrates or lawyers. All these arguments lead to the conclusion that a request for evidence made in appeal that hasn’t got concrete evidentiary theses indicated regarding each piece of evidence requested does not allow the assessment on the usefulness of the evidence by reference to the specialization of the object of probation at this phase of the criminal trial and, consequently, it should be dismissed by the court invested with the examination of the case.
