-
The challenge on enforcement does not refer to the merits of the judgment of conviction, but it is directed against its enforcement and, for this reason, its completion consists in eliminating the illegal matters occurring in the enforcement or during the enforcement of the judgment. The probation service attached to the tribunal has no competence to file a challenge on enforcement with the court of law for reasons of illegality occurred during the surveillance of the person convicted and, in particular, for matters related to the personal interests of the convict. If, during the surveillance, problems or interests of the convict occur that prevent the convict from appearing on the dates scheduled, the probation service has the competence to examine the reasons invoked and revise the initially scheduled surveillance plan. -
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.
-
În versiunea originalã a Convenţiei (europene) pentru apãrarea drepturilor omului şi a libertãţilor fundamentale (în continuare denumitã Convenţia), moartea nu putea fi cauzatã unei persoane în mod intenţionat, decât în executarea unei sentinţe capitale pronunţate de un tribunal pentru o infracţiune sancţionatã prin lege cu o asemenea pedeapsã. Astfel, pedeapsa cu moartea nu era interzisã, cu condiţia respectãrii principiului legalitãţii, aceasta şi datoritã faptului cã în acel timp (data semnãrii, respectiv data intrãrii în vigoare a acestui document), în majoritatea statelor membre ale Consiliului Europei pedeapsa cu moartea era stipulatã în legislaţiile penale interne2.
-
În condiþiile în care nu existã, în prezent, dispoziþii general aplicabile în legislaþia privind circulaþia juridicã a terenurilor, care sã reglementeze dreptul de preemþiune ca o condiþie de nulitate a actului de înstrãinare încheiat cu încãlcarea acestui drept, legiuitorul a lãsat în atributul legilor speciale sã reglementeze dreptul de preemþiune, în funcþie de natura juridicã a bunului. În cazul arendei, la data încheierii contractului de arendã, ca ºi în prezent, dreptul de preemþiune nu este reglementat de lege ca un impediment legal în transmiterea cãtre o altã persoanã a dreptului de proprietate, ci ca un drept contractual al arendaºului.
-
Prezentul Raport sintetizeazã activitatea Consiliului Uniunii Naţionale a Barourilor din România (în continuare U.N.B.R.) pânã la data întocmirii sale – 01 iunie 2010. Raportul nu poate şi nu are pretenţia de a evoca toate problemele rezolvate în mod curent de Consiliul U.N.B.R. şi organele profesiei subordonate acestuia (Comisia Permanentã a U.N.B.R. şi Preşedintele U.N.B.R.). Congresul avocaţilor este chemat sã decidã dacã în perioada analizatã Consiliul U.N.B.R şi-a îndeplinit obligaţiile şi şi-a exercitat drepturile prevãzute de Legea nr. 51/ 1995 pentru organizarea şi exercitarea profesiei de avocat (în continuare, Legea) şi Statutul profesiei de avocat, în conformitate cu hotãrârile Congresului precedent.
-
HOTÃRÂREA NR. 1 privind aprobarea RAPORTULUI DE ACTIVITATE AL CONSILIULUI U.N.B.R. (între Congresul avocaţilor 2009 şi Congresul avocaţilor 2010) Congresul Avocaţilor întrunit la 17 iunie 2010 în localitatea Mamaia, jud. Constanţa, constituit în conformitate cu dispoziţiilor art. 59 alin. (1) din Legea nr. 51/1995 pentru organizarea şi exercitarea profesiei de avocat, vãzând dispoziţiile art. 61 alin. (1) lit. a) din Legea nr. 51/1995 pentru organizarea şi exercitarea profesiei de avocat, dupã analiza şi dezbaterea Raportului de activitate al Consiliului U.N.B.R. (între Congresul avocaţilor 2009 şi Congresul avocaţilor 2010) astfel cum acesta a fost supus dezbaterii Corpului profesional al avocaţilor, începând cu data de 07 iunie 2010, afişat pe website-ul (www.unbr.ro), comunicat prin poşta electronicã la toate barourile şi, prin grija acestora, comunicat membrilor Congresului în forma prevãzutã de art. 14 alin. (5) din Regulamentul de organizare şi funcţionare a U.N.B.R. şi de desfãşurare a şedinţelor Consiliului U.N.B.R.,
-
The criminal offences against the safety of railway traffic are provided for in the new Criminal Code under Title VII “Criminal Offences against Public Safety”, Chapter I. Taking into account the critical observations expressed in our doctrine, starting with the year 2006, the lawmaker has amended and supplemented both two criminal offences as regards their names, and the content of the others. Regarding the content of criminal offences, we mention that the amendments made refer both to the capacity of active subject and to that of passive subject, which this time may belong to the employees of both State-owned and private-owned operators. Nevertheless, when identifying the most important social values and, subsequently, protecting them by means of criminal law rules, the lawmaker did not take into consideration the current legislation, both domestic and of the European Union regarding the safety of railway traffic and transports. Thus, the most important European and domestic regulations in this field, which had to be taken into consideration in the activity of legal individualization of criminal law penalties, are the Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 (the Railway Safety Directive) and Law no. 55/2006 on railway safety. The critical observations and the proposals made by the author refer precisely to the need to adapt the Romanian railway safety legislation to the European Union legislation.
-
The criminal offence of compromising the interests of justice, according to the new regulation, refers in particular to the respect and authority that needs to be attached to the performance of the act of justice, and such performance is protected by criminal law in two manners, both as regards the criminal offences committed by persons from outside the judicial system in the capacity of unqualified active subjects, and against the “abuses” of any nature committed, on the one hand, by the persons called to perform the act of justice and, on the other hand, by the public servants who, as a result of their work duties, learn about the producing of any evidence, the existence of any means of proof or official documents, which, by their disclosure or revealing, could obstruct or prevent the criminal proceeding, or could influence the order of a solution in the criminal proceeding stage.
-
Law no. 230/2007 on the establishment, organization and functioning of the owners’ associations, stipulates in art. 15: “Subject to a 5-day notice, the owner is obliged to accept the access to its apartment or to its space of a representative of the association, when it is necessary to inspect, repair or replace elements in joint ownership, which can be accessed only from the given apartment or space. Emergency situations, when access is possible without notice, shall be exempted”. In the above study, the author initially examines this text in relation to art. 27 of the Constitution of Romania regarding the inviolability of the home. Further on, he examines the requirements imposed by the same text for its legal enforcement; the situations in which the owner’s refusal to allow access – although the legal requirements are met – is an abuse of right and, in the end, other legal possibilities for the association dealing with the owner’s unjustified refusal to allow access. -
Dealing with the issue of the Romanian judge, as a guarantor of the public international law enforcement, the author discusses: the issue of the Romanian judge’s power to interpret the conventional international law; issues regarding difficulties in the enforcement of the public international law by the Romanian courts due to the absence of similar internal rules; decisions of the international courts of justice and their effects on the internal legal proceedings (Romanian).
-
The author examines the deviated offence in the broader framework of the real and not apparent plurality of offences. The author considers, contrary to the opinion expressed by the other Romanian authors, that for both its main forms – error in personam and aberratio ictus – the correct solution should be that of the concurrence of offences (an attempted offence in the representation of the perpetrator and an offence committed by fault) if in relation to the circumstances of the case, the defendant could and should have foreseen the actual result.
-
In this article, the author asserts with scientific and text arguments that, anytime art. 911 of the Criminal Procedure Code is interpreted as allowing the wire tapping or recording of calls or communications outside the criminal trial (namely without even starting in rem the criminal prosecution in rem), namely in the stage of preliminary acts, this is unconstitutional.
-
Recently, the National Council for Solving Complaints has dealt with numerous complaints against the acts adopted by various companies, which do not have the capacity of contracting authorities, but are beneficiaries of public funds for carrying out certain projects of public interest, companies that, under the financing contracts concluded with the financing bodies, are required to perform the purchases necessary for carrying out the projects according to the Government Emergency Ordinance no. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services concession contracts. This article presents, in a comparative manner, the solutions provided for various complaints and the arguments they are based on, from the recent practice of the Council and the control courts, some of the given solutions and arguments exceeding the limit established by legal norms, in the opinion of the author commenting on them.
-
Taking into consideration the fact that the coverage of the World Trade Organization has been expanded to the field of services as well, in this study, the author examines litigations in the matter of services, which can be resolved by the mentioned Organization, with the observation that only countries or, as the case may be, the European Union, can be “parties” in such litigations. The implementation of the General Agreement on Trade in Services (GATS) between the countries is conditioned by the “influence” on the international trade in services by various actions taken by the Member States; in this respect, in the practice of GATS implementation, the notion of “influence” is understood extensively.
-
Special procedures are rules derogatory from the common rules governing the criminal trial. They are also of a supplemental type and strict enforcement when a certain procedural aspect is regulated differently than the common rules. However, their purpose is the same, namely the resolution of the criminal and civil action, when required. Among these procedures, the agreement for acknowledgement of guilt is a transaction concluded between the prosecutor, as a representative of the state, and the defendant. The agreement for acknowledgement of guilt must meet certain requirements of substance and form. The court solutions in case of examining the agreement for acknowledgement of guilt can be of accepting the agreement for acknowledgement of guilt and admitting the factual basis of the offence for which the defendant acknowledges his/her guilt and of not accepting the agreement for acknowledgement of guilt. In the first situation, the judgment can be appealed only for procedural errors and the amount of punishment and, in the second situation, the prosecutor may file and appeal within 24 hours or, if not, the court orders the judgment of the case according to the usual procedure.
-
The offence of abuse of social goods is one of the most frequent offences regarding companies. The incrimination of this action has the purpose of protecting the company against their managers’ temptation to consider it their own property and/or abuse of its goods or credit against the company’s interest. The offence that the authors examine can have as material object the goods, the credit and the authority. The offence may also refer to the company’s credibility, namely “the company’s commercial reputation, born out of the good operation of the company, its capital, its volume and the nature of its business”. Using the credit in a negative interest means exposing the company to a risk it should not be exposed to, even if the risk is not achieved.
-
In this study, the authors intend to examine the institution of international liability, dealing with the issue of the constitutive elements of international liability. In the general international law, liability is a relationship created exclusively between two or several international law subjects. The international liability of a state can only be raised by another international law subject whose international right was infringed. If a state suffers a direct damage (immediate), it can approach the liable state directly in order to obtain the repair. On the contrary, the damage suffered by an individual following the infringement of the international right shall not provide the victim with the right to obtain recovery of damages before the international courts. A state shall only be liable internationally if it is the author of an international tort. There is a tort of the state when: a) a behavior consisting of an action or omission can be assigned (attributed), in compliance with the international law, to the state; b) this behavior represents an infringement of an international obligation of the state. The international doctrine generally acknowledges that the occurrence of these two elements generates the international liability of the state.
-
Art. 2 paragr. 1 din Convenþia (europeanã) pentru apãrarea drepturilor omului ºi a libertãþilor fundamentale (în continuare denumitã Convenþia) consacrã dreptul la viaþã al fiecãrei persoane ºi protecþia de care aceasta trebuie sã se bucure conform legii, în politica penalã a statelor membre ale Consiliului Europei. Aºadar, în privinþa dreptului la viaþã statul are nu numai o obligaþie substanþialã negativã, ci ºi o obligaþie substanþialã pozitivã; aºa cum rezultã din jurisprudenþa Curþii Europene a Drepturilor Omului (în continuare denumitã C.E.D.O.), statele nu trebuie doar sã se abþinã de a provoca moartea în mod ilegal ºi intenþionat, dar trebuie sã ia ºi mãsurile necesare pentru protecþia vieþii persoanelor aflate sub jurisdicþia lor1.
-
Esenţa principiului error communis facit ius, invocat de subdobânditorul cu titlu oneros pentru a obţine pãstrarea valabilitãţii titlului sãu, constã în faptul cã terţul dobânditor este învestit cu un drept de proprietate pe care însã nu-l primeşte nici de la adevãratul proprietar – cu care nu a contractat, nici de la proprietarul aparent – cu care a contractat, dar care nu deţinea dreptul –, ci direct de la lege. Aşadar, este un mod originar de dobândire a proprietãţii, iar nu unul derivat. Pentru ca o aparenţã sã fie creatoare de drept, se cer a fi întrunite mai multe condiţii, cumulativ: sã existe o eroare comunã şi invincibilã; subdobânditorul sã fie de bunã-credinţã; actul încheiat între proprietarul aparent şi terţul subdobânditor sã fie cu titlu oneros.
-
The article intends to examine the changes that the new Criminal Code brings to the matter of the enforcement of criminal law over time, mainly for the purpose of harmonizing the given provisions with the constitutional principles, as well as for facilitating their implementation. From this perspective, one can notice that the new Criminal Code has largely taken over the provisions currently in force, but has eliminated those contrary to the constitutional principles, such as, for instance, the provisions stipulating that the complementary punishments, the educational measures and the safety measures in the new criminal law are always retroactive for public interest reasons or the provisions regarding the facultative enforcement of the most favorable criminal law in the irrevocably judged cases. We also find the introduction among the provisions subject to the principle of the most favorable criminal law of the legislative instruments declared unconstitutional, as well as of the emergency ordinances approved by the Parliament with amendments, supplements or rejected, provided that they were in force during the period stipulated by the law text.
-
According to the new criminal regulation, the offence of misleading the judicial bodies preserves some elements of the offence of false accusation, which is currently not provided anymore, but both the constitutive content and the sanctioning system show serious changes.
-
In the above study, the author often criticizes the constant case law of the Constitutional Court of Romania, namely the fact that, on the one hand, the resolution by this Court of an exception of non-constitutionality a posteriori (therefore, after the law or the Government ordinance was adopted and published) is no longer legally possible if, as at the date of the Constitutional Court decision, the law/Government ordinance is no longer in force, being expressly abrogated. Moreover, the Constitutional Court also stated that, in the given situation, the examination of the non-constitutionality of the law shall be made by the courts, no matter their type (therefore, not by the Constitutional Court as well). Proving with arguments that the solution passed by the Constitutional Court is legally wrong, the author also emphasizes the serious consequences of the Constitutional law case law (the perpetuation ad infinitum in the future of the effects of a law, Government ordinance, hypothetically unconstitutional).
-
In the above study, the author makes an analysis of the majority shareholder’s right to exclude the other shareholders from the companies traded on a regulated capital market (a right that is generally known under the English name squeeze aut) both in the light of the European Union Directive 2009/25/EC of 21 April 2009, and according to the (Romanian) law no. 297/2009 on the capital market, reaching the conclusion that the exercise of this right serves the interests of minority shareholders as well.
-
This study examines – critically – the Romanian legal regulations regarding the termination of the term of office for a “local elected official”, which refers to: local advisors, county advisors, presidents and vice-presidents of county councils, the general mayor of the city of Bucharest, deputy mayors and the village delegate, who is also assimilated to local elected officials. Difficulties arise from the fact that the termination – upon expiry or prior to expiry – of the term of office for “local elected officials” in Romania is regulated, at present, directly or indirectly, by four laws, namely: Law no. 393/2004 on the status of local elected officials; Law no. 215/2001 (republished on 20 February 2007) on the local public administration; Law no. 161/2003 on ensuring transparency in carrying out public dignities, public functions and in the business environment, the prevention and sanctioning of corruption and in Law no. 144/ 2007 on the setting up, organizing and functioning of the National Integrity Agency. In order to avoid any difficulties generated by such a legislative system, the unification of regulations in this field is proposed (as well as some amendments to the laws) exclusively in the content of Law no. 393/2009 on the status of local elected officials.
