-
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. -
Departing from the constitutional basis underlying the relations between the Constitutional Court of Romania and the European Court of Human Rights, this study examines the judicial dialogue between the two courts and the effects thereof. The conclusion of this study, based on numerous examples from case-law, is that the dialogue between the constitutional judge and the European Judge serves to develop common standards for the protection of fundamental rights, as well as to enriching those existing at national level, with effects in terms of law-making and law-enforcement. -
This study examines the issue of dialogue between the Court of Justice of the European Union and the constitutional courts of the Member States of the European Union, with special reference to the Constitutional Court of Romania, and from this perspective, the effects of integration into the European Union and the transnational judicial dialogue they produce within the national legal systems. -
The development of the legal framework for public procurement in the European Union represents a very important issue which presents numerous challenges. The starting point of the evolution of legal aspects in public procurement was the year of 1962, when the institutions of the European Community at that time underlined the importance of the regulation of this aspect for making the common market operational. In this respect, they militated for eliminating commercial restrictions inside the Community among the member states by making operational the freedom to establish and the free movement of services. Originally, public procurement represented a non-tariff barrier in the development of the common market, thus opening the way toward the harmonization of this field by the European Commission among its member states, including Romania. The previously mentioned legislative process was divided by the doctrine of the public procurement law in 4 stages which describe the evolution of public contracts for goods, works and services. -
-
Potrivit art. 246 C.pen., fapta de a îndepărta, prin constrângere sau corupere, un participant de la o licitație publică ori înțelegerea între participanți pentru a denatura prețul de adjudecare se pedepsește cu închisoarea de la unu la 5 ani. Conform art. 244 alin. (1) C.pen., inducerea în eroare a unei persoane prin prezentarea ca adevărată a unei fapte mincinoase sau ca mincinoasă a unei fapte adevărate, în scopul de a obține pentru sine sau pentru altul un folos patrimonial injust și dacă s-a pricinuit o pagubă, se pedepsește cu închisoarea de la 6 luni la 3 ani. Articolul 25 alin. (3) C.pr.pen. prevede că instanța, chiar dacă nu există constituire de parte civilă, se pronunță cu privire la desființarea totală sau parțială a unui înscris sau la restabilirea situației anterioare săvârșirii infracțiunii (cu notă parțial aprobativă). -
The author conducts a thorough analysis of the legal content regarding the crime of misappropriation of public tenders provided by art. 246 of the new Criminal Code, incrimination ex novo. With reference to the structure of this infringement, the object of criminal protection, the subjects, the objective and subjective aspect, the forms, modalities and sanctions provided by the law are examined in detail. Within the complementary explanations, the connections of the misappropriation of public tenders with other crimes and some procedural aspects are tackled with. Further, the legislative antecedents of this incrimination regulation, the solutions to be followed in case of occurrence of temporary situations and some elements of comparative law are presented. The author does not hesitate to express his opinion as regards the constitutional content of this criminal deed, its systematization and nature and to advance some of his own solutions and ideas related to this aspect. Towards the ending of this analysis several conclusions and proposals de lege ferenda are presented in order to determine an appropriate protection of the values and social relations concerned by this incrimination, an unitary enforcement of the text and implicitly a better performance of the criminal justice within Romania. -
-
Within this study the authors intended to analyze the situations in which it can be promoted the action for damages by separate means under Article 19 (1) of the Law No 554/2004 on the administrative disputes and the moment of running of the one-year time limit within which this action can be promoted, having in view that the law does not establish precisely this moment, and the case-law offers various solutions adjusted to each case solved. Starting from these premises, the authors have proceeded, on the basis of the legal provisions in the matter and of the apparently non-unitary case-law solutions, to the systematization of the working hypotheses and to the elaboration of some objective criteria, legally substantiated, in order to determine the moment of running of this procedural time limit. -
7 years after the entry into force of the new Civil Procedure Code, without claiming to make an exhaustive inventory of what could partially be called a failure of regulation and/or of application, the legal institutions and the judicial procedure with a new face, perhaps even revolutionary, or those only reformed and/or refurbished regulated by the new Civil Procedure Code have demonstrated successively or simultaneously their insufficiency or inefficiency, some being dysfunctional due to their own internal causes, others due to external causes referring, as a rule, to the absence of the adequate human, material and financial resources or simply as a result of the deformation by acclimatization by the courts, parties and participants in the civil trial, the examples being numerous. Under these circumstances, the necessity to regulate within the new Civil Procedure Code of a simplified court procedure results from the very materiality of the facts. The specificity of this simplified court procedure would be that it would imply to exclusively go through the written stage of the civil trial, possibly of a written stage more extensive than the current one regulated by Article 201 of the Civil Procedure Code, at the end of which the date of pronouncing the judgment will be established by administrative resolution. In this way, the duration for solving some cases with a medium or low complexity would be significantly shortened, by eliminating the time period between the date of completion of the written stage and the first trial term -
-
Although we are close to the tenth anniversary of the entry into force of the new Civil Code, the doctrine outlined around the institution of granting the benefit of family dwelling place at divorce has had reservations in providing solutions to some crucial issues for solving this type of applications. At the same time, the courts have frequently come up with contradictory solutions to these issues, however some guiding solutions can be distinguished. The main aspects on which we noted the existence of some divergences have concerned the admissibility by separate way, after the pronouncement of the divorce, of the application for the allocation of the dwelling that served as a family dwelling. Another hypothesis on which we will focus in the present study is that of possession of the dwelling place by the spouses on t he basis of other rights than those expressly raised for discussion in Article 324 of the Civil Code, such as the right of usufruct or the one arisen from the loan agreement. At the same time, we will try to offer several arguments based on which the courts could assign to the non-title holder spouse of the lease contract, under certain conditions, even the dwelling place with special rental regime initially allocated to the other spouse according to the criteria provided by the Law No 152/1998 1 , there being numerous discussions around this subject just before the entry into force of the current Civil Code. The debates behind these divergences are not only of interest to legal theorists, but have strong practical implications, the fate of the entire application depending on the solution offered, thus being essential to establish some stable and predictable rules, especially in a matter where safety should prevail, given the often vulnerable situation of the parties involved in the process. Therefore, the present study tries to offer some adequate solutions for the above-mentioned inconveniences, starting with the analysis of the criteria which the legislator has created for the allocation of the conjugal dwelling place, especially in the higher interest of the minor, following that, in the second part of the study, we would actually deal with the issues mentioned.
-
Abuzul în serviciu este reglementat în Codul penal în vigoare ca una dintre infracțiunile de serviciu în art. 297 C.pen. El nu reprezintă o noutate legislativă, având corespondent în art. 246–2481 C.pen. 1969. Se poate afirma astfel că, deși comportamentul corespunzător tipicității infracțiunii de abuz în serviciu avea reflectare în legislație de foarte multă vreme, nu au fost constatate de-a lungul activității normelor de incriminare aspecte de neconstituționalitate. Cu toate acestea, prin Decizia nr. 405/20161, Curtea Constituțională a României a constatat următoarele: caracterul neconstituțional al prevederii din art. 297 C.pen., precum și al celei din art. 246 C.pen. 1969 încalcă prevederile constituționale ale art. 1 alin. (5), întrucât sintagma „îndeplinește în mod defectuos” nu prevede în mod expres elementul în legătură cu care defectuozitatea este analizată2. -
In this article the author intends to present from a constitutional perspective the legal nature of the institution of the Public Ministry, as it was configured in the texts of the Basic Law and analyzed in the specialized doctrine. There are analyzed, in detail, the place and the constitutional role of the Public Ministry as institutional structure of the judicial authority, as well as the role and attributions of the prosecutors’ offices in conducting the criminal investigation. -
The study aims to analyze the particularities of the cases of resolution of the maintenance contract, a contract that has its own, express regulation in the new Civil Code, as novelty. Some of these cases of resolution are expressly indicated in Article 2263 of the new Civil Code, and for other cases reference is made to the application of express provisions specific to the life annuity contract. As novelty, the new Civil Code (Article 2255) provides for the conclusion of the maintenance contract in authentic form, under the sanction of absolute nullity, a modification with implications on the resolution of the contracts because the conditions of execution will be clearer. The study analyzes the cases of resolution, which are the specific aspects and effects of the resolution of the maintenance contract. The analysis of the cases of resolution of the maintenance contract is made by identifying some relations and delimitations against the life annuity contract. The article examines whether the resolution is a cause of cessation of the contract or a sanction for the non-performance of the contract without justification, the last solution being the suitable one. -
The registers of the professionals are the main tool for knowledge, recording and control of their activity. Along with these functions, the registers of the professionals also have a probative function, the legislator including them in the category of documents under private signature, although they do not constitute a proper written evidence, but an improper one. The entries made in the registers are not made for the purpose of constituting an evidence, but of keeping the records, as established by law. But, through these entries, the professional practically recognizes the attested circumstances, the operations performed. The legal regime of registers of the professionals derogates from the principle of nemo sibi titulum constituere potest, a derogation which is explained by the nature and functions of the registers of the professionals, as well as by the conditions established by the law for keeping them. The Civil Procedure Code lays down the general rules referring to the probative force of the registers of the professionals (therefore, of the registers of all professionals, and not only of the traders’ registers), distinguishing, from a probative point of view, between the registers drawn up and kept in compliance with legal provisions and the registers kept in non-compliance with the legal provisions. The provisions of Article 280 of the Civil Procedure Code (called „Registers of the professionals”) are applicable only to registers, and not to other categories of documents, such as invoices, telegrams, faxes, receipts, etc., from professionals. The registers of the professionals can not bring evidence against the foreigners concerning the relationship among professionals, even if they are regularly kept. The delimitation of the legal relations between professionals from other civil legal relations is based on the concepts of professional and enterprise, concepts whose meanings are specified in Article 3 of the Civil Code, and Article 8 (1) of the Law No 71/2011 for the implementation of the Civil Code includes in the notion of „professional” the categories of „trader, entrepreneur, economic operator, as well as any other persons authorized to carry out economic or professional activities”. The records of the professionals kept in compliance with the legal provisions can give full evidence in court, both to the contrary and in favour of those who keep them, provided that the dispute is between professionals and concerns operations or legal acts which constitute facts and matters related to their professional activity. The registers of professionals, unlawfully kept, can not represent evidence in court in favour of those who have kept them. These registers provide evidence against the professional who kept them, but the part that prevails on them can not divide their content. The evidence resulted from the registers of the professionals is left by the legislator at the sovereign appreciation of the court, whether or not they are legally kept. The court can base its own solution even on other evidence. But, it must motivate the admission or removal of the registers as means of evidence. The registers of professionals may be presented in the trial by appearance or, as the case may be, by communication, or may be investigated by rogatory commission, provided that the documents or registers are in another court jurisdiction.
-
The immunity which the President of Romania enjoys is a „constitutional guarantee, a measure of legal protection of the mandate that is meant to ensure the independence of the mandate holder from any external pressures or abuses. The guarantee provided by Article 72 (1) of the Constitution encourages the mandate holder to adopt an active role in the political life of the society, as it removes his legal liability for the political opinions expressed in exercising the function of public dignity. However, the holder of the mandate remains liable, according to the law, for all acts and deeds committed during the period in which he exercised the public office and which were not related to the votes or political opinions”. The quoted text is an excerpt from the grounds retained by the Constitutional Court in the motivation of its Decision No 284 of 21 May 2014, by which the constitutional contentious court has solved the legal conflict of a constitutional nature between the President of the Republic and the Government of Romania. The whole scaffolding of the arguments of the Constitutional Court leads to the „construction” of an active role of the President in the political and social life of the country as if it were limited to the free expression of some political opinions under the protection of parliamentary immunity. However, it should be noted that the Fundamental Law does not recognize through an express text „the active role of the President of Romania in the political life”. This is why we have reservations about the fairness of the quoted decision. First, the term of political life used in the decision of the Constitutional Court is far too general and thus it has a large margin of inaccuracy. After all, any public authority regulated in Title III of the Constitution must have an active role in the political life. When the Constitution refers in Article 80 to the Role of the President it takes into account the prerogatives of this public institution in the process of exercising public powers, a term equivalent to the governing activity, or the exercise of these prerogatives does not imply an activation of the constitutional role of the President of Romania, but its accomplishment within the limits outlined by the constitutional texts . Beyond this is the abusive exercise of the governing acts by the holder of the mandate of President of Romania, for which he, not benefiting from immunity, is required to be liable according to the Constitution.
-
The solution given by the Constitutional Court of Romania through its Decision No 358/2018 on the legal conflict of a constitutional nature between the Minister of Justice and the President of Romania, regarding the possibility of revoking the Chief Prosecutor of the National Anticorruption Directorate, as a result of which it acknowledged a „power of decision” on the part of the Minister of Justice on prosecutors’ activity, is based on the interpretation of the constitutional text provided by Article 132 (1), according to which public prosecutors shall carry out their activity under the authority of the Minister of Justice. This particular legal provision was interpreted by the Constitutional Court by applying the historical interpretation method, by expressly referring to the will of the original constituent, from which it could not digress without exceeding the limits of its interpretation operation and thus interfering with the law making process, in the Court’s opinion. But what are the limits of legal interpretation? How did the Constitutional Court justify its option for the historical interpretation approach? Is this historical interpretation static or dynamic, evolutive kind? Could the constitutional text have been interpreted from an evolutive perspective? But even so, did the Court make a just historical interpretation of the constitutional text? What are the solutions envisaged and how can the Constitutional Court fulfil its rightful role in a rule of law state? -
Treaty of Trianon, an international document of unquestionable political-legal value and, at the same time, of capital value for Romania, which certifies the full legitimacy of its existence inside its current borders – also including Transylvania –, is unconditionally fully valid and thus remains as such, having been applied for a century. It is for the Romanians to comply with the sacred duty to know its provisions as rigorously as possible and to ensure, at any cost and without any hesitation, the strict observance of its provisions. Under no circumstance it is admitted a hesitating or passive attitude, without reply when its validity is questioned. Thus, it is created the impression that Romania would agree that the Treaty of Trianon is no longer of interest to the Romanian State or that there would be some indifference to the regulations which it contains, favouring confusions and forming opinions that prejudice the value of this Treaty.
-
This study addresses, from a practical perspective, the freezing order referred to in the Law No 302/2004 on international judicial cooperation in criminal matters and presents some of the steps to be taken by the criminal investigation bodies from tracing an asset for which there is an associated alert, in accordance with the Decision 2007/533/JHA of the Council of Europe of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II), and by the recognition and enforcement of the freezing order.
-
The theme of this study is the public order considered in its sense of limit of the principle of contractual freedom. The author starts in the analysis of this concept from the finding that, at present, it is almost impossible to formulate a definition sufficiently comprehensive, in order to be unanimously accepted by the specialized doctrine and by the case law. This is because it is a notion whose content is constantly evolving, depending on the needs of the judicial life, which is in an increasingly accelerated dynamics. Therefore it finds that the current public order has two components: the classical public order and the modern public order; the first has been and continues to be conservative and the second intends to be innovative. The classical public order usually consists in defending the main pillars of support of the society, such as: the state, the family and the individual, as well as the fundamental human rights, called „personality rights”. The modern public order has the mission to respond to the demands of the contractual life, determined mainly by the great economic changes that took place and continue to take place in the modern society.
-
The persons without discernment, being incapable of understanding at all the gravity of their own deeds, are protected by the legislator by the establishment of a cause exonerating civil liability. However, for reasons of fairness, it was opted to introduce the subsidiary mechanism of the obligation of compensation, an innovation of the Civil Code that entered into force in 2011. Thus, even unaware of their own acts, a person may still be obliged to pay a certain amount of money which may, but not necessarily, be equivalent to the damage suffered by the injured party. The mechanism thus created tends to mitigate an inequity, but it is confused with a type of actual civil liability, be it objective. The present study aimed to analyze this mechanism, taking into account its jurisprudential applications, not numerous, but sufficient to draw some useful conclusions. -
The modalities of the obligations, the time limit and the condition, are of several types and with different legal regimes (Articles 1004–1025 of the former Civil Code, respectively Articles 1399–1420 of the new Civil Code). The legal regime of these modalities is generally known by jurists, the modalities being frequently encountered both in the domestic and international commercial activity, as well as in the judicial practice and in the arbitration one. We do not intend to examine the legal regime of these modalities, with problems too rich for a simple review study, but only to question the purely potestative condition (Article 1009 of the former Civil Code and Article 1403 of the new Civil Code), which, as a rule, does not produce legal effects. However, there are, admittedly, rare cases in which such a condition still produces legal effects. We encountered such a case on the occasion of some international rental contracts, for which we were requested a legal opinion, and we considered that it would be useful that the legal issues raised by the case to be brought to the knowledge of the practitioners of the law. -
A decision pronounced for the settlement of an appeal in the interest of the law by the High Court of Cassation and Justice (No 25 of 6 November 2017) brings to attention the inadequate perception by the Romanian jurisdictions of the particularities of these administrative acts of urbanism and, consequently, the recourse to procedural artifices inappropriate for solving some problems arisen in practice. In this case, for the separate exercise of the control on the legality of the urbanism certificate „by which the prohibition to build has been ordered or which includes other limitations”, the right of access to justice has been invoked [Article 6 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms], ignoring the legal nature of this act as individual urbanism administrative act that would, under certain conditions, have led to the same solution, but on another legal basis. In addition, it would be avoided the misconception that the certificate would order or that it would contain per se prohibitions/limitations of the right to build, this doing nothing else but take over, express and inform about the urban planning requirements included in the urbanism documentations.
