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Presently, Article 527 (1) of the Civil Code, materializing a jurisprudential solution and a doctrinal thesis substantiated under the influence of the Family Code, provides that „only the person who has the means to pay or has the possibility to acquire these means may be forced to provide maintenance” (s.n. – T.B.). This text, in relation to the provisions of Article 42 (2) c) of the Constitution, raises the question of the possibility of forcing to labour the debtor of the legal maintenance obligation, who is fit to work, but who, for reasons imputable to him, does not earn incomes from work, nor has any other means to meet this obligation”. Despite some contrary opinions, the proposed study is intended as a contribution to the logicallegal argumentation of this „legal possibility”. -
The regulation of the movable property mortgage in the new Romanian Civil Code (Articles 2387–2419) was a necessity and it represented an important element of reform in matters of guarantees. The importance of the movable property increases every day, so that the Romanian legislator had to adjust to the permanently changing economic and social requirements. In the opinion of the author and, partly, in disagreement with other authors, the movable property mortgage agreement has the legal nature of a constitutive, unilateral, free, solemn and public agreement, being ancillary to the claim which it guarantees. This paper examines the solemn character, the constitutive character and the free character of the movable property mortgage, because it is only about these characters that the author has some key observations. -
One of the main innovations introduced by the new Criminal Procedure Code is the possibility of concluding a plea bargaining agreement between the defendant and the prosecutor. Where there is evidence to confirm that the defendant is the perpetrator of the deed subject to the criminal trial, and he admits the allegations against him, it is possible for the defendant and the prosecutor to mutually agree on the punishment, the method of execution of punishment, as well as on all other aspects related to the criminal side of the case. In this case, the role of the court will be limited only to verifying whether the concluded agreement fulfils or not the conditions provided by law and to confirm it or to reject it. Through this new institution it will decrease the duration of trials where the evidence produced during the criminal prosecution phase proves almost unequivocally the commission of acts by the defendant, allowing the courts to concentrate their resources on the really complex cases. -
The oblique action is a means of preserving the claim that has been regulated both in the sense of the new Civil Code and in the sense of the old Civil Code. The new regulation, however, brings some improvements to clarify the conditions and effects of the oblique action. At the same time, the notion of general pledge of creditors is replaced by the notion of joint guarantee. As such, a study on the effects and conditions of the oblique action is extremely useful, especially as it is compared with the provisions of the new French Civil Code. Through this paper we have understood to deal with a very important and up-to-date subject as it is a means of protecting the claims at the disposal of any creditor. At the same time, the parallel with the direct actions comes to clarify the confusion that has been created many times in both doctrine and judicial practice between the two legal mechanisms. -
Article 2 (3), respectively Article 4 (1) a) and b) (iii) of the Law No 213/2015 only indicates the general characteristics of the insurance claim and of the insurance creditor – the injured person, in that the indemnity must be based on the insurance contract and the damage suffered must be the consequence of the occurrence of a risk covered by an insurance contract of civil liability. Hospital units must demonstrate that the rights they claim have been definitively classed by a court as representing compensation due under an MTPL insurance contract to a person injured by the automobile accident. The court cannot give a further legal characterization of those rights (in the sense that the damage is not the result of the accident and that the compensation is not due under the insurance contract) because it would amount to contradicting the earlier judgment and to cancel an existing right recognized to hospital units. This right must be considered as complying with the provisions of the Law No 213/2015 and hence opposable, even by the effect of the Law No 213/2015, to the Guarantee Fund for the Insured.
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The author analyzes the procedure to be followed on the hypothesis that the applicant proves that it is impossible for him to trace the domicile of the defendant. The principle of settlement of the trial within due and foreseeable time, the necessity of going through the procedure preliminary to the first hearing term instituted by law, the safeguarding of the right to defense of the respondent are taken into consideration. There are also examined the modality and the time when the law court designates the special guardian to represent the interests of the respondent, starting from the regulations of the Civil Procedure Code in this matter. -
In this study the authors criticize the case law of some courts by which it is ordered „the restoration of the previous situation”, in case a person acquires an asset (by committing an offence) and subsequently alienates it to a third party in good faith. The situation presented is justified, according to the authors, by the idea that, if the solution suggested is not accepted, an uncertainty and an instability will be created in the civil circuit, which are likely to lead to the infringement of the property right or of the mortgage right. Moreover, in the matter of real rights on buildings, uncertainty would be reached even in respect of the buildings recorded in the land book, thus infringing the provisions of Article 900 (1) of the new Civil Code, a text that establishes that „if a real right has been recorded in the land book for the benefit of a person, it will be presumed that the right exists for the benefit of such person”. -
Once the Labor Code (Law no. 53/2003, republished on 18 May 2011) was supplemented with art.248 para.(3) regulating the deletion by law of the disciplinary sanction imposed (obviously under certain conditions), a controversy arose in the Romanian labor law doctrine in the sense whether the said legal norm is incident or not and whether the sanction imposed resulted in the disciplinary termination (dismissal) of the individual employment contract. In this study, after an extensive reasoning, a positive conclusion related to the raised controversy is reached also analyzing a number of this conclusion’s legal implications. -
The above study makes a detailed analysis on the precise meaning of Art. 821 para. (1) of Law No. 161/2003, according to which “The deputy or senator who, during the exercise of term of office of a member of Parliament, desires to exert the profession of attorney at law may not plead in the cases judged by the courts of law or tribunals, nor may they provide legal services to the prosecutors’ offices attached to such courts of law.” In this context, the author concludes that the legal limitation of the interdiction mentioned only under the “pleading” in front of the courts of law and tribunals (or granting the legal assistance to the prosecutor’s offices attached to such courts of law), since the reasons which imposed the regulation under discussion are identical also in the situation of the cases which are judged by higher courts of law (Courts of Appeal, High Court of Cassation and Justice).
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In the case law of the Strasbourg Court, in the cases in which Romania has been convicted for the use of undercover investigators, it has been retained the violation of the right to a fair trial, not by the importance given to the statements of the investigators, the protected witnesses or collaborators, but by the omission of the judge examining the merits to take actual steps to hear them in the trial phase. These obligations, which are directly applicable in the Romanian law system, are established, on the one hand, so that the defendant and any other party can address questions to the witnesses, debate and contest their allegations, and, on the other hand, so that the judge can hear directly the depositions of the investigators or collaborators. Despite these clear and common-sense rules arising from the mandatory case law of the European Court, the current Criminal Procedure Code has provided, in Article 103 (3), that the statements of the investigators, collaborators and protected witnesses can not contribute decisively to proving crimes, thus the interdiction is valid whether they have been heard or not by the law court. -
By the provisions of Article 657 (2) of the Civil Code it is regulated the situation in which the destruction of a smaller part of a building takes place, destruction that does not affect the building as a whole nor in a proportion of no more than half of its value, in which situation the co-owners are bound to contribute to the restoration of the common parts proportionally to the quota-share of each of them. The law establishes the obligativity of those co-owners who either do not want or can not participate in the restoration, to assign the quota-shares of the right of forced joint ownership to the other co-owners, meaning that it establishes a modality of extinguishing the right of private property, which, in our opinion, is likely to give rise to some situations that are hard to accept.
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Law No 78/2014 regarding the regulation of volunteering in Romania provides that a volunteer agreement can be concluded by any natural person „who has acquired capacity to work according to the legislation in the field of labour.” Whereas this phrasing is likely to generate controversies and discussions (the Law No 78/2014 being a law in the field of civil law, and not in the field of the labour law), the author examines precisely at what age minors may conclude volunteer agreements. The author’s conclusion, resulting from the corroboration of Articles 41–42 of the Civil Code with Article 13 of the Labour Code, is that: minors may conclude volunteer agreements after they turned 14, but between 14–16 years of age the consent of their parents, guardians, etc., is also required and, after the minor turned 16, he may conclude such an agreement himself, without the above-mentioned consent.
