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The present paper aims to bring to your attention the Decision No 9 of 6 April 2020 of the High Court of Cassation and Justice – Panel for the settlement of some matters of law that took into account the legal nature of the revenues collected at the Environmental Fund in order to determine whether the acts of theft in any way from the establishment of these fiscal burdens may fall under the provisions of the Law No 241/2005 for preventing and combating tax evasion. The mentioned decision established that the revenues of the Environment Fund that give rise to tax receivables are not fiscal receivables that may fall under the law to prevent and combat tax evasion, which can be considered wrong. The study presents all the legal arguments for which the interpretation given by the High Court of Cassation and Justice is wrong and, at the same time, harmful, considering the possible legal effects that this decision may have on all tax regulations in Romania. -
The imperative to not let the governors and the governed persons commit any abuses has generated a specific manner of regulation of the organization of public assemblies, especially when they take place in public. The result of this regulation which, although it does not expressly provide the condition of authorising the organization and the conduct of these public assemblies, contains it nevertheless by default, has implications on the problem of the administrative authorizations. This result is the specific manner of establishing a required authorization that is not included within the scope of express authorizations or in the one related to the tacit approval procedure, placed, as well as the latter, in the sphere of legal fictions. Whereas given the state of law and a genuine democracy it can not be explained the reaction of the authorities when they face the situation of spontaneous public assemblies, their regulation at legal level is required as well. -
The present study aims to present to the general public information about the reform process of the European Court of Human Rights, in general, and about the entry into force of Protocol No 15 to the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular. Given the very large number of applications submitted for settlement to the Strasbourg Court, over time an attempt has been made to outline a process of reform of this international jurisdiction, including short, medium and long-term measures. Thus, although opened for signature by the High Contracting Parties on 24 June 2013, Protocol No 15 entered into force recently, on 1 August 2021,following the deposit by Italy of the instrument of ratification of the Protocol. We intend to analyze in this study what are the important amendments brought to the Convention by this protocol of amendment, meant to ensure the effectiveness of the European Court of Human Rights. We consider that the dissemination of the provisions of Protocol No 15 to the Convention will help the interested parties to become aware of the latest amendments to the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular to the provisions regarding the reduction of the time limit for bringing the matter before the Court. -
On the background of some possible controversies, the rational interpretation of Article 56 (4) of the Labour Code involves the solution according to which the conclusion of an independent individual labour contract does not take place, but the initially concluded contract of the employee is extended, with the approval of the employer. As a result, the cessation by law of the contract takes place at the time when one of the time limits agreed upon is reached: one, two or maximum three years.
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This study accurately highlights, on the one hand, the regulatory normative framework of the prefect and of the institution of the prefect starting from 1990 and until now and, on the other hand, the political vision on this institution, in the different stages of relationing between Romania and the European Union: pre-accession, accession, integration and present. The study critically analyzes both the ways of professionalization and depoliticization of the prefect function, as well as the actual repoliticization that took place in 2021. The failure to professionalize the function of prefect is presented in the broader context of the failure to professionalize the function and the public administration in general, one of the essential causes that determine the low performances of the Romanian public administration. Likewise there are critically exposed the legislative interventions to dilute the quality of the prefect of Government representative in the territory, in relation to the administrative function of the Government and its corruption into a territorial political agent of the Government, seen as an emulation of the political parties that form it. This political reverie is thus the basis of the legislative amendments that have led to the unconstitutional situation in which the implementation of the government programme in the territory by the prefect, which is in any case impossible to achieve as we will argue below, becomes the main commitment of the prefects, to the detriment of the very constitutional responsibility of the prefect, which determines the precise reason for the existence of the institution of the prefect – the administrative guardianship. All these are primarily the result of an ad-hoc and discretionary style of regulation – which can also be seen in the very large number of amendments brought to the framework law regarding the civil service – the Law No 188/1999, republished, as amended and supplemented: some of them by emergency ordinances subsequently declared unconstitutional, but which produced significant upheavals in the system. -
Legal arrangements pertaining to neighbours’ relationships are permeated by the idea of community. A textbook example is the right-of-way, which arguably breaches the sacred inviolability of private property in its quest to provide adequate access to the p ublic road for a landlocked parcel. The present paper examines the manner in which the Civil Code of Romania (2009) managed to bridge the unbridgeable, i.e., the individualist essence of private property and the collectivist flavour of neighbours’ relationships. Methodologically, this article debuts with a brief historical and comparative study of the right-of-way from the viewpoint of related legislations (i.e., the French Civil Code and the Civil Code of Quebec), it examines the terminology employed by the legislator and analyses the legal regime of said institution. The author argues that the cornerstone of this fine balance is the legal nature of the right-of-way: in denying it the stature of a real right (ius in re), the legislator established this sui generis right as a legal limit to the exercise of private property. Consequently, the right-of-way is solely a creation of the law, whereas only its manner of exercise can be settled by way of contract, continuous usage or court decision. Therefore, the author stresses the semantical inconsistency encountered within legal literature, which confuses the very origin of the right-of-way, which is inherently legal in its nature, with the concrete manner of usage, which the legislator left to the will of the contracting parties or the judge summoned in the event of litigation, respectively. In addition, the author argues that a land book entry may cover the right -of-way only in the form of a notation, and not as a compulsory registration, either permanent (intabulation) or provisional, since the latter two solely concern tabular rights, which solely consist of real rights on real estate. -
Pentru existența faptei prevăzute de art. 337 C.pen., refuzul sau sustragerea trebuie să privească supunerea la prelevarea de mostre biologice, spre deosebire de vechea reglementare a faptei, unde se prevedea că acțiunea autorului putea să se refere și la refuzul sau sustragerea de la supunerea testării aerului expirat.
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The study begins with defining the pre-contractual period and with revealing its importance in the process of forming the contracts by free negotiations or, as the case may be, by conventionally organized negotiations. The deontology of negotiations for the formation of contracts is also defined. It follows from this definition that, mainly, the content of the deontology of free pre-contractual negotiations is made up of the obligations with value of limits of the freedom to negotiate. These obligations or limits are of two types: some of them are legal, being expressly provided by law, by imperative norms or, as the case may be, by dispositive norms, and others implicit. At the core of these obligations is the mandatory legal obligation of the negotiating partners to comply with the exigencies of good faith. Good faith is a proteiform concept or notion, a standard with the value of a general principle, flexible and open, which makes it possible to adapt it to the concrete circumstances and conditions of the formation and execution of each contract. Thus, in the matter of concluding contracts, good faith governs any pre-contractual negotiations, whether they are free or are conventionally organized. Moreover, this obligation is expressly, clearly and imperatively established in the texts of Article 1183 of the Civil Code, being an application of the general principle of good faith in contractual matters, established with special force in Article 1170 of the Civil Code, corroborated with Article 14 of the Civil Code, which concerns the exercise of any right and the execution of any obligation. Being a complex notion, a concept with a proteiform structure and flexible in its content, good faith is the source of the origin and of the existence of the other rules and obligations that make up the content of the deontology of free negotiations for the progressive formation of contracts. From among these obligations there are analyzed the following: the obligation of pre-contractual information, the obligation of confidentiality, the obligation of counselling, the obligation of prudence or abnegation, the obligation of exclusivity, the obligation of coherence and the obligation of cooperation. The author tries to argue that some of these obligations, especially the implicit ones, have as a foundation and source, in addition to the general obligation of good faith, also the principle of contractual solidarism.
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Art. 1100 dispune că creditorul nu poate fi silit a primi alt lucru de cât acela ce i se datorește, chiar când valoarea lucrului oferit ar fi egală sau mai mare. Acest text, care nu este de cât o consecință a art. 9691 și a interpretărei voinței părților, reproduce No. 530 din obligațiile lui Pothier: «Obicinuit, zice acest autor, nu se poate plăti de cât lucrul datorit; și debitorul nu poate să oblige pe creditorul său a primi drept plată alt ceva de cât ceea ce i se datorește.» «Aliud pro alio, invito creditori, solvi non potest.»2 «Nici creditorul, zice art. 1862 din Codul Calimach (1213 C. austriac), nu poate fi silit să primească împotriva voinței sale alt ceva, fără de cât aceea ce are dorit să ceară, nici datornicul nu este îndatorit să dea sau să facă alt ceva, fără de cât aceea ce este dator să dea sau să facă. Aceasta are tărie și pentru vremea, când, și pentru locul, unde, și pentru chipul cum are să se împlinească îndatorirea.»3 -
In this article, the author intends to analyze, by comparison, the terms domicile and residence, as they are used by the constituent legislator in Article 27 of the Constitution, as well as by the Civil Code and the Criminal Code in force. The author points out that the terms of domicile and residence, used in the civil legislation as attributes of identification of the natural person, are different from those covered by the doctrine of criminal law and by that of constitutional law, in the light of the protection of the inviolability of the home of a person, as a legal instrument for the respect of the freedom and private life of persons. The author demonstrates that the purpose of establishing the inviolability of the domicile by constitutional rule is to ensure the respect for the private life of individuals. Particular attention is given to the problems of constitutionalisation of the inviolability of the domicile, as well as of the European protection of the right of every person to the inviolability of their own homes. The author also presents the constitutional guarantees of the inviolability of the domicile and of the residence and how they are materialized by the criminal procedure rules. -
Among the assets that are the object to public property and are likely to be subject to concession and lease of particular importance are the permanent lawns. A special normative act was dedicated to them, namely the Government Emergency Ordinance No 34/2013, which regulates inclusively the concession and lease of lawns which are in the public or private property of communes, towns and municipalities. As regards the concession and lease of the lawns which are in the public property of the above-mentioned administrative-territorial units, the legislator understood to derogate in some respects from the common law. Thus, the local public authorities are obliged to approve until 1 March every year the concession or lease for a period of 7 years to 10 years, without having the opportunity to assess the appropriateness of these juridical operations, the place of the opportunity study is taken by the pastoral arrangement, the award procedure is triggered at the written request of the animal breeders registered in the National Register of exploitations, there is no possibility of changing the destination of the concessioned or leased assets, even if there would be a consent of the owners, the lease contract for the lawns is non-transmissible even in the hypotheses regulated by Article 1846 of the Civil Code and others. The derogatory legal regime for concessioning of lawns which are in the public property is justified by the importance the legislator gives to the capitalization of these assets. Thus, in the statement of reasons of the cited normative act it is shown that animal breeding is an activity of national interest and the permanent lawns owned by the administrative-territorial units is for many breeders the only source of providing food for these. At the same time, capitalizing these assets is the premise of granting subsidies per area. These subsidies being granted from European funds the importance of the concession of those assets is undeniable. This explains why the administrative-territorial units to which a request for concession has been made do not have the possibility to assess the appropriateness of such a juridical operation, by law being imposed on them an obligation to grant permanent lawns. Correlatively, the animal breeders, natural persons or legal persons, who make in due time requests for concession acquire the right to participate in the award procedure, right which can be defended by resorting to the action in administrative disputes.
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Prin arvonă (arrha)1 se înțelege ceea ce una din părțile contractante, în genere cumpărătorul (art. 1297, 1298 C. C.) sau locatarul (art. 1416), dă celeilalte, fie pentru a asigura executarea contractului (arrha confirmatoria), fie pentru a’și procura mijlocul de a se putea desista de el (arrha paenitentialis).
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Aspecte generale privind incriminarea faptei de abuz în serviciu. În Codul penal în vigoare infracțiunile de corupție și cele de serviciu sunt prevăzute în două capitole distincte ale titlului V din Partea specială – „Infracțiuni de corupție și de serviciu”. Ceea ce caracterizează în principal grupul infracțiunilor de serviciu sau în legătură cu serviciul este valoarea socială apărată, și anume bunul mers al activității instituțiilor și organizațiilor publice, regiilor autonome sau oricăror alte persoane juridice cu capital integral ori majoritar de stat sau declarate ca fiind de utilitate publică și, implicit, apărarea intereselor legale ale persoanelor particulare. -
During the state of emergency both some press articles and the official communiques of the prosecutor’s offices mentioned the criminal investigation in the case of persons who, being confirmed as infected with SARS-CoV-2, refused to be hospitalized. The present study does not aim to provide a classic analysis of the crime of thwarting disease control, but is limited to trying to find an answer to the question of whether it is possible to retain this criminal offence in the case of infected persons who refuse hospitalization. As such, this paper discusses the current Romanian legislation and concludes that, having regard to both the provisions of the Protocol for the treatment of SARS-CoV-2 virus infection and the systematic interpretation of the legal framework, since the Minister of Health enacted only measures to prevent and manage the emergency generated by the pandemic, as well as the obligation to diagnose the symptomatic persons, the measure of hospitalization cannot result exclusively from the unilateral will of the doctor, in reality the will of the latter playing no role, but must derive from the law in order to impose itself on both the patient and the doctor. Therefore it cannot be retained the crime of thwarting disease control in the case of infected persons who refused to be hospitalized.
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În România, dreptul de proprietate privată este unul esențial, fiind prevăzut în Constituție1 în cadrul capitolului II referitor la drepturile și libertățile fundamentale. Acest act normativ reglementează dreptul de proprietate privată în mod detaliat, în cele nouă alineate ale art. 44. Pentru a reglementa acest drept, legiuitorul constituant a avut la dispoziție un vast material documentar, format în primul rând din dispozițiile vechiului Cod civil referitoare la proprietate și la regimul ei juridic, bogata doctrină acumulată între timp, precum și practica judiciară a instanțelor, toate acestea fiind adaptate la dinamica continuă a vieții sociale și a circuitului civil din societatea românească, la care se adaugă dreptul comparat în materie
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The paper analyzes the European legislative act establishing the conditions of compensation to victims of violent crimes committed in another Member State than that of the victims residence. The research has led to the identification of some provisions which will cause some difficulties both in practice and in enunciation of scientifically critical observations. The study is useful for theorists and practitioners and also for the European legislator. The scientific contribution of this research is given by the critical remarks and future law proposals made in order to improve the complex activity to compensate the victims of all kinds of crimes, not just of violent crimes, as required by the legislative act in question. -
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The article addresses the issue of cancellation of documents resulting from the commission of a crime, mainly concerning the special procedure regulated in Article 5491 of the Criminal Procedure Code. The legal nature of the institution of cancellation of documents resulting from the commission of an offence is the same, regardless of whether it is ordered by the court of law, pursuant to Article 25 paragraph 3 of the Criminal Procedure Code, or by the judge of the preliminary chamber, pursuant to Article 5491 of the Criminal Procedure Code. In the majority specialized literature it was embraced the opinion according to which within the procedure of abolition of documents regulated in Article 5491 of the Criminal Procedure Code only the document regarded as instrumentum probationis may be revoked, and not the legal operation attested by the respective document as negotium juris. Also, the majority doctrine considers that the procedure for the cancellation of documents can be applied only in case of committing forgery offences, not also in case the documents would come from committing other offences. This article seeks to question the correctness of these doctrinal opinions, bringing some arguments in the sense that the cancellation also refers to the legal operation (negotium) and may also concern documents resulting from the commission of offences other than those of forgery.
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Conform art. 315 alin. (2) lit. d) C.pr.pen., în cazul în care procurorul dispune soluția de clasare a cauzei, ordonanța trebuie că cuprindă (după caz) și mențiunea sesizării judecătorului de cameră preliminară cu propunerea de desființare totală sau parțială a unui înscris. Acest aspect este reluat în art. 5491 C.pr.pen., care reglementează procedura în asemenea situații; astfel, potrivit alin. (1), în cazul în care procurorul a dispus clasarea sau renunțarea la urmărire penală și sesizarea judecătorului de cameră preliminară în vederea luării măsurii de siguranță a confiscării speciale sau a desființării unui înscris, ordonanța de clasare, însoțită de dosarul cauzei, se înaintează instanței căreia i-ar reveni, potrivit legii, competența să judece cauza în primă instanță, după expirarea termenului prevăzut la art. 339 alin. (4) ori, după caz, la art. 340 sau după pronunțarea hotărârii prin care plângerea a fost respinsă. Conform alin. (3) al art. 5491 C.pr.pen., judecătorul de cameră preliminară poate dispune una dintre următoarele soluții: -
Contractul de ipotecă poate fi desființat, sub forma anulării, numai în condițiile art. 1648 alin. (1) C.civ. în ceea ce privește soluționarea cererii de anulare a contractului de ipotecă, exclusiv ca o consecință a rezoluțiunii contractului de vânzare prin care pârâta a dobândit dreptul de proprietate asupra terenului, cu privire la care a constituit ulterior un drept real, reprezentat de dreptul de ipotecă în favoarea pârâtei. Aceste dispoziții fac trimitere însă la regulile de carte funciară, urmând, așadar, ca, în continuare, să fie observate dispozițiile art. 908 C.civ., ce reglementează ipotezele în care se poate dispune rectificarea cărții funciare.
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The study analyzes how the investigation of the trial and debate of the fund has been regulated, from the publication of the new Civil Procedure Code to the adoption of the Law No 310/2018 amending and supplementing the Law No 134/2010 on the Civil Procedure Code. Initially, the investigation of the trial before the first instance was expected to be carried out as a rule, in the council chamber and, by exception, in public session. The debate of the fund could take place both in public session and in the council chamber. The entry into force of the provisions regarding the investigation of the trial and the debate of the fund in the council chamber has been postponed several times, never entering into force, so that by the Law No 310/2018 these provisions be abandoned. In this way, the intermediate situation by which the investigation of the trial and the debate of the fund were held in public session became permanent. In our opinion, it is criticizable to abandon the holding of the civil trial in the council chamber, given the predominantly private character of the rights and interests of the parties involved and the guarantee of the right to privacy.
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The new Romanian Civil Code advances a new conception regarding the divorce, essentially different from the conception with which we were familiar under the legislation that is (still) in force. Analyzing the provisions of Arts. 373-404, contained in Book II, “Family” of the new Civil Code, a note must be made of the non-dissimulated liberal “philosophy” on divorce, particularly expressed through the following features: multiplication of the reasons for divorce – in the sense that divorce by the spouses’ agreement may also take the form of a request accepted by the other spouse, the de facto separation is a distinct reason for divorce, allowing for the dissolution of marriage including out of the exclusive fault of the claimant spouse’ the “de-judiciarization” of the divorce procedure – by the fact that marriage termination does not fall under the exclusive competence of the courts of law, in the case of divorce by proper consent, alongside the judiciary means, being also available the means of administrative or notarial procedure, the latter being accessible even in the presence of spouses’ underage children, the limitation of post-divorce legal issues – by encouraging the settlement of “all issues” related to marriage, patrimonial or non-patrimonial, in the relation between spouses, as well as in the relations between parents and children, preferably by the spouses’ agreement of will and, inasmuch as possible, “in one package”, on the occasion of marriage termination. This study is dedicated to these features. In the introductory part (§1), we propose a systematization model for divorce cases, then we analyze the forms taken by divorce according to the reason for marriage termination (§2), making a distinction between divorce as a remedy – by the spouses’ agreement, at the request of either one of them accepted by the other spouse, for health reasons – and divorce by fault – for reasons that are not provided by the law, due to the de facto separation which lasted at least 2 years.
