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The idea of this study has been suggested to us by the phrase the subjective right to contract, used in the name and the content of an article relatively recently published in „Dreptul” magazine. Wishing to find out how it was motivated from a logical-legal viewpoint and what such a subjective right involves, we read the article but, to our surprise, we have noticed the lack of any action in this respect. The aspects that have drawn our attention have become reasons why we have decided to try to substantiate some logical-legal solutions regarding some legal notions or phrases, in relation to which the author of the article refrained from arguing her own options, such as the subjective right, the subjective right to contract and the good faith in relation to bad faith. -
The recent Administrative Code (approved by the Government Emergency Ordinance No 57/2019) has taken over from the old regulation (the Law on local public administration No 215/2001), with some amendments, the rules regarding the function of public administrator at the level of communes, cities, municipalities, counties and associations of inter-community development. In this article, the author mainly considers the appointment of the public administrator by the mayor, the delegation of his attributions, including that of the main loan officer. Special attention is paid to the management contract (its object, the rights and obligations of the contracting parties, its duration and its cessation). Regarding the legal nature of the respective contract, the author’s opinion is that this is an administrative contract, of public law. Among the arguments considered the following are included: it is regulated by the Administrative Code; one of the parties is a public authority; its object consists in „coordinating some compartments of the specialized apparatus or of the public services”; it can be terminated (unilaterally) by the public authority. The end of the article is devoted to the triptych at the level of communes, cities and municipality, triptych consisting of the mayor, the deputy mayor and the public administrator. The idea is that the delegation of some of the attributions to the public administrator does not remove the competence of the mayor to exercise any attributions given by law in his competence. -
This study was occasioned by the different manner in which the National Council for Solving Complaints and the courts have construed the laws under which the successful tenderer in the public procurement procedure is granted a right of access to a court, often bringing adverse procedural consequences. Although the jurisprudential solutions analyzed were delivered under the old procedural rules, we find that the latest amendments made to both the Government Emergency Ordinance no. 34/2006 and the Code of Civil Procedure were not a remedy for the deficiencies noted, as the ambiguity of the laws stating that the successful tenderer can be party to the administrative jurisdictional procedure, namely party in a complaint to the court, is a source of legal uncertainty. -
Criminal regulations are lacunary as regards the punishment of the actions of some persons to determine, by corruption or by other means, ordered assassinations or other serious offences, although their activity is extremely dangerous, taking into account the fact that, sometimes, the victims escape only owing to the benevolence of those instigated, which, in some cases, even denounce the instigators. -
In the study with the above title, the author reviews a recent amendment (under Law no. 202/2010) to Article 153 par. (1) of the current (Romanian) Code of Civil Procedure, which by its wording gives rise among practitioners to a controversy, namely: whether or not the legal entity is presumed to have been or not notified on the term (with the consequence of failure of its summoning on subsequent terms) where the summons was not personally received by the summoned person or a representative (legal or conventional) thereof, but by an employee thereof failing to act in the capacity as its representative. The author judges that non-receipt of summons personally by the summoned person or by his representative, but by another employee of the legal entity shall not denote to have been notified for all subsequent terms. -
In case the criminal prosecution is carried out by the hierarchically higher prosecutor’s office in the matter in which the preventive detention action is requested, according to art. 45, paragraph 1 with reference to art. 33-36 of the Criminal Procedure Code, when deciding the material jurisdiction for solving such a proposal, according to art. 1491 paragraph 2 of the Criminal Procedure Code, the judge takes into consideration the whole criminal matter, namely all the facts and persons investigated in the criminal case in which the prosecutor makes such a proposal and the legal qualification of all these facts established by the prosecutor and valid as at the date of notifying the judge, and not by taking into consideration only the action (and the legal qualification established for such action) or the person in relation to which the proposal for taking such action was submitted. -
The article presents the itinerary covered since the entry into force of the new Civil Procedure Code (15 February 2013) by the manner in which it has been regulated the execution of the arbitral judgment. Initially, the arbitral judgment had to be invested with executory formula for the purpose of being enforced. By the Law No 76/2012 for the implementation of the new Civil Procedure Code it has been eliminated the formality of investing the arbitral judgment with executory formula, which corresponds to the imperative to accelerate the enforcement of such judgments. In our opinion, the Law No 138/2014 amending and supplementing the new Civil Procedure Code has reintroduced, however criticizably, the procedure of investment with executory formula of the arbitral judgment, in view of enforcement. The author’s conclusion is that the legislator should have kept the elimination of the procedure of investment with executory formula of the arbitral judgment, thereby contributing to the simplification and the encouragement to resort to the arbitration procedure. -
The institution of conditional release under judicial control regulated in Title IV, Chapter I, Section V of the Criminal Procedure Code, has been analyzed succinctly in the Romanian specialized legal literature. The problems arising in the context of erroneous interpretations given in practice to the legal texts regulating this institution by the courts of law derive, according to the author’s opinion, from the insufficient approach at doctrinal level of the way in which the conditions under which this measure can be ordered should be interpreted. Of course, the situation should also be analyzed in the light of the particular situation of each case. Thus, the article written by the author intends to analyze the conditions under which conditional release can be ordered after addressing an actual situation submitted to judgment by the courts. -
În peisajul jurisprudențial conturat după intrarea în vigoare a actualului Cod civil1, ne reține atenția o hotărâre2 pronunțată relativ recent de Secția a II-a civilă a Înaltei Curți de Casație și de Justiție a României în materia răspunderii civile delictuale a comitentului pentru fapta prepusului său, în funcțiile încredințate, care prin argumentele prezentate oferă o nouă perspectivă privind problematica atât de controversată din ultimele decenii privind natura juridică și fundamentul acestei ipoteze de răspundere. Deși datele speței se referă la o faptă ilicită săvârșită în anul 2005, fiind în discuție modul de interpretare a dispozițiilor art. 1000 alin. 3 din Codul civil din 1864, prin hotărârea pronunțată, Înalta Curte de Casație și de Justiție își însușește noua orientare propusă în doctrina noastră privind necesitatea recunoașterii caracterului direct, autonom și independent al răspunderii comitentului, în raport cu răspunderea prepusului său, precum și fundamentarea obiectivă a acestei răspunderi pe ideea de garanție, ideea de risc și ideea de echitate.
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In this paper, the author reaches the conclusion according to which in the Romanian law, in principle, the parties’ inequality, in the mater of the transaction agreement, shall not be sanctioned, just as the cancellation of such injury agreement is not admissible. Despite all these, a transaction agreement concluded as a result of an economic constraint may be cancelled if the existing necessity conditions are met, and the disproportion affecting the contractual performances is unjust, illegal; according to this last aspect, the extent to which one of the parties misuses the economic dependency of the other party for the purpose of getting an undue benefit, shall be relevant. -
The study hereby was inspired by a recent Case where the European Court of Justice (ECJ) ruled upon a petition for a preliminary ruling covering the interpretation of the provisions of Council Directive 93/13/EEC of April 5th, 1993 on unfair terms in consumer contracts made under Article 234 EC (now Article 267 of the Treaty on the functioning of the European Union). Taking our stand upon the issues highlighted by the aforementioned case, namely the possibility of cancellation of an arbitration award by the Court of enforcement and implementation ex officio of the European Union Law by the national court, it should be laid down some clarifications relating, mainly, to the ECJ solution with reference to the principles of the European Union Law, as well as national issues regarding the subject of the enforcement act, the possibility to pursue an appeal against the arbitration award, the principle of availability governing the lawsuit, but also the res judicata of judgments. The authors critically analyze the judgment and bear in mind the relevant Romanian law (including the provisions of Law no. 134/2010 on the new Code of Civil Procedure), and the possible effects in national, arbitration or judicial jurisprudence. -
This study falls within the so much present problems of civil liability of professionals for malpractice. Starting from the arguments of a jurisprudential solution concerning the lawyer’s liability for the damage caused to the clients or to the third parties, the article intends to present the regulation, the special conditions, the legal nature and the foundation of this hypothesis of liability. By her conclusions the author supports the idea that the civil liability of the lawyer is a separate and autonomous professional civil liability.
