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The confession or the recognition has a mixed legal nature; it is primarily a means of evidence, but it also represents an act of disposition of the party that gives the confession. The legislator of the new Civil Procedure Code distinguishes between the probative force of the legal confession and the probative force of the extrajudicial confession, so that, in relation to the provisions of Article 349 (1) and of Article 350 (1) of the mentioned normative act, the two types of confession are no longer on the same level. The extrajudicial confession is left at the discretion of the judge and it may be challenged by the contrary evidence. Instead, the judicial confession is full proof against the person who gave the confession. -
Further to the steps taken by the author in order to contribute to the study of the regulations in the field of legal protection of the „intellectual creation”, this study is devoted to the analysis of the definition, the substantive conditions and the reasons for refusal or for cancellation of the registration of the trade mark, especially in relation to the provisions of the Law No 84/1998 on trademarks and geographical indications and of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks. Where it has been necessary, de lege ferenda proposals have been grounded in order to improve the regulations devoted to the discussed aspects. -
The procedure of payment order has been regulated as a synthesis, but also as a reformation of the two previous procedures materialized in the Government Ordinance No 5/2001 on the procedure of the payment summons and the Government Emergency Ordinance No 119/2007 on the measures for combating the delay of the performance of the payment obligations resulting from the contracts between professionals. In its legislative work, by the new Civil Procedure Code, the legislator has not only achieved a fusion between the two normative acts, but it has also inserted novelty legislative solutions, bringing numerous amendments to the procedure and following its adjustment to the current legal, social and economic realities, in the attempt to harmonize the Romanian legislation with the European one. This study makes a detailed analysis of the nature of the procedure of payment order, of the characters and of the way it was conducted within the current normative framework, as well as of the vast judicial practice, by identifying the novelty elements of the procedure regulated by the new Civil Procedure Code, which – beyond the guaranteed additional accessibility and efficiency – require clarifications and specifications.
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The debate over the future of the juveniles’ court and the juvenile justice system has been between proponents of a retributive philosophy and advocates of the traditional individual treatment mission. Both punitive approaches and those focused solely on treatment have failed to satisfy basic needs of crime victims, the community and offenders themselves. Neither offers hope for preserving a separate justice system for juveniles. This document outlines an alternative philosophy, restorative justice, and a new mission, the balanced approach, which require that juvenile justice system devotes attention to making amends to victim and the community, increasing offender competencies, and protecting the public, through process in which offenders, victims and the communities are all active participants. -
The present study aims to analyze the autonomy of will regarding the civil legal act, by reference to the limitations that the legal norms, public order or good morals set both in terms of substance and formally. The legal will, a complex psychological phenomenon which is the basis of the conclusion of any legal act, is governed by two basic principles, namely the principle of real will and the principle of freedom or autonomy of will. The principle of real will, enshrined in Romanian law, gives valency to the internal/psychological element to which the party is animated at the conclusion of the civil legal act. As for the principle of autonomy of will, it finds its legal consecration in Article 1169 of the Civil Code, establishing the parties’ freedom to conclude any contracts and to establish their content. However, this freedom must not be viewed in absolute terms, knowing a series of limitations of substance and form, which we have pointed out in this article.
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The foundations of European Union law lie in the reasons that European decision-makers have identified, after the two World Wars, firstly, for the establishment of the European Coal and Steel Community and then of the European Economic Community and the European Atomic Energy Community. These reasons, however, find their origins in the events that essentially marked the first half of the 20th century, identifying themselves, among other things, through the developments recorded by the international society, namely the international law, in general, evolutions which the European society, and, implicitly, the European Union law, would not have been possible to avoid. -
Reopening the criminal trial in case of the judgment in the absence of the convicted person – an extraordinary means of appeal whose admissibility is subsumed to a set of conditions and requirements the fulfilment of which is meant to offer to the defendant the guarantee of a fair trial.
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The reasons behind our research are justified by the numerous legal acts of the European Union adopted in the most diverse areas, acts which include an unprecedented development of substantive EU law, particularly during the last period (2000–2017). As a consequence, the situations in which the infringement procedure can be initiated are also exponentially multiplied. An in-depth analysis of the subject can be edifying if we make a quantitative comparison, and not only, of the EU acquis, existing in the ’60s, at the beginning of the Community construction, compared to the present, already 60 years after the signing of the Treaties of Rome, which have led to the adoption of a highly derivative legislation within a Union of 28 Member States. Regarding the infringement procedure, for doctrinaires, but especially for practitioners, we will analyze the following outstanding issues: who can trigger the procedure; against whom the procedure may be triggered; the situations and methods for initiating the procedure and the steps taken. All these aspects are presented taking into consideration the quality of Romania as a Member State of the European Union with full rights and obligations. -
The article proposes a discussion about the institution of the putative deed. Considering the fact that this institution does not know an explicit legal regulation, it gave rise to heated discussions in the specialized legal literature, which had not only a theoretical importance, but also a great practical importance. In the beginning of the presentation it is shown what is the correct name of this institution of criminal law, from the author’s perspective, arguing at the same time the opinion to which he understands to rally. It is shown that the putative deed corresponds to an inverse error either of law or of fact. Given that, in a first hypothesis, the author considers that the deed committed is incriminated by a rule of criminal nature, although in reality such an activity is not incriminated or, in another hypothesis, although the author’s deed is incriminated by the criminal law, the actual manner of committing the deed does not fall within the respective legal text. Similarly, it is also presented perhaps the most heated discussion in the legal literature, namely the one in which the author executes certain acts of execution with the intention of killing a person, not knowing that he had died prior to the moment of beginning the activity. It is shown that, given the legal reality in our country, at this time, the perpetrator has to be held liable for committing a putative deed, not an attempt, whether a punishable or non-punishable attempt is discussed. At the same time, it is stated that the judicial practice has retained the commission of a putative deed, and not of an offence, in the hypothesis that it is required a qualified active subject for committing a certain offence and the person who committed the deed did not act in this capacity. In the author’s opinion, in such a hypothesis, it will not be retained the commission of any offence, but only the commission of a putative deed, only in the situation that the deed committed does not represent another offence. At the end of the article conclusions are drawn, also showing how the legislator could intervene in order to put an end to the discussions arisen in the legal literature and, at the same time, in order to enable possibly the sanctioning of the persons who commit putative deeds which pose a high social danger.
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In the situation that a person has been sanctioned by an administrative authority for committing a contravention, this person can no longer be subsequently prosecuted for the same deed contemplated in its materiality, whereas, in this situation it is applicable the ne bis in idem principle which determines, from the perspective of the criminal procedural law, the incidence of the case provided by Article 16 (1) i) of the Criminal Procedure Code, with reference to the authority of res judicata, which prevents the exercise of the criminal action against that person.
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This study analyzes the particularities involved by the powers of the Court of Accounts to establish contraventions and to apply offences punishable in the specific activity of control/audit they achieve. Two categories of offences can be identified, namely contraventions that the Court of Accounts only finds, not having the power to apply sanctions against them, and contraventions for which the Court of Accounts is competent not only to identify them but also to apply the sanctions for them. The rules on contraventions that may be applicable to deviations discovered by the Court of Accounts can be found in the Law on the organization and functioning of the Court of Accounts No 94/1992, as well as in other special regulations that are analyzed in this article. The approach is carried out not only from a legislative and doctrinal perspective, but also from a case law perspective, being exemplified in some solutions given by the courts in cases concerning complaints against the contravention reports drawn up by the Court of Accounts. Finally, some conclusions are presented, which also include the authors’ point of view on the perspective approach, including by the legislator, of this issue.
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One of the extraordinary legal remedies regulated by the Civil Procedure Code is the contestation for annulment. According to Article 503 (2) point 2 and (3) of the Civil Procedure Code, the judgments of the courts of recourse, as well as those of the courts of appeal, may be challenged with a contestation for annulment where the settlement given to that legal remedy is the result of a material error. Besides the phrase „material error”, used in other texts as well, the phrase „material mistake” or the phrase „material mistakes” can also be found in the Code. Thus we appreciate that the legislator was not consistent with the terminology mentioned. It uses the very same phrase, in different contexts and with different meanings, which creates confusions in the interpretation and application of the legal texts. For the lexical and semantic consideration of the phrase „material error”, included in Article 503 (2) point 2 of the Civil Procedure Code, and of the methods of interpretation of the legal rules, it can be concluded that this phrase can not be reduced only to certain procedural errors, but it could also enable the correction of the errors of judgment.
