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The author analyzes the condition of existence of common property for granting legal personality to an owners’ association in the light of the provisions included in the Law No 230/2007, starting from a solution of the judicial practice, reaching to the conclusion that the establishment of an association can not take place unless there is a common property of all members of the association. -
This study examines the regulation of the Civil Code, entered into force on 1 October 2011, in respect of non-essential clauses, standard clauses, external clauses or extrinsic and unusual clauses, in the process of conclusion of contracts. Despite the intention of simplification which the Civil Code had in view, the risks and the issues generated by these legal instruments can be imagined, even in this early stage of its application. Within this analysis, there are also reported some problems, as well as some possible solutions in this respects.
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Unlike the previous legislation, which did not contain any reference to the progressive offence, the new Criminal Code indicates the time from which the prescription period starts to run for this type of offence, without regulating, however, other aspects referring to the criminal treatment applicable to the acts falling within the legal category in question. This task lays further on case-law and doctrine, but, having regard to the numerous contradictory solutions and controversies noted, some regulations to ensure a uniform settlement of the noticed aspects shall be required, de lege ferenda.
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The study contains an analysis of the theoretical and practical aspects concerning the extraordinary judicial remedy of reopening criminal proceedings in case of trial in absence of the convicted person in the light of the new Criminal Procedure Code. First, the author presents the reasons for imposing the establishing of an effective remedy in the positive law through which the person on trial in absentia can obtain a retrial in his presence. Further on, after a review of the evolution of national legislation in the field of safeguards for retrial of the person on trial in contumacy, the author of the study emphasizes the meaning conferred by the Romanian legislator to the notion of „trial in absence”. Similarly, there are treated the conditions and the procedure of reopening the criminal proceedings, the particularities of retrial and, finally, the concurrence between the procedural mechanism of reopening criminal proceedings and other judicial remedies – the appeal and the contestation for annulment. Likewise, the author also makes some proposals de lege ferenda for the purpose of improving the regulation of the analyzed institution and of avoiding the appearance of some non-unitary practices during its application.
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This study deals with a new institution in the Romanian criminal legislation, namely the plea agreement, which is a deal of the prosecutor with the major defendant concerning the offence, the evidence, the form of guilt and the punishment imposed, all taking the form of a simplified procedure. By combining the theoretical and the practical aspects, the article is of great interest to those who apply the criminal law. Being written in a way which transcends the already known generalities regulated in the Criminal Procedure Code, the study specifically concerns the particularities and the difficulties which accompany the application of this new legal mechanism.
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In this study, the author examines exhaustively the problems of the preliminary proceedings before the Court of Justice of the European Union [Article 19 (3) (b) of the Treaty on European Union; Article 267 of the Treaty on the Functioning of the European Union]. To this end there are examined: the referral, the preliminary, the preliminary procedure of common law and the special prejudicial procedures.
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Aspecte introductive. Motivarea unei hotărâri judecătorești este procesul cognitiv prin care judecătorul, în raport de petitul acțiunii, argumentele părților, probatoriul administrat și dispozițiile legale, elaborează soluția. Motivarea trebuie să înglobeze toate rațiunile ce au dus la edictarea soluției1, expresie a judecății efective a cauzei. Este deci esențial ca soluția pronunțată să aibă la bază o motivare completă, denumită în doctrină ca suficientă (deci nu se urmărește o motivare totală care să răspundă fiecărei susțineri a părților, dar nu se poate accepta o motivare parțială), care să se raporteze cel puțin la fiecare categorie de argumente invocate de părți, prin arătarea rațiunii pentru care a fost reținută respectiva categorie de argumente ori înlăturată.
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În cazul în care societatea a hotărât, prin hotărâre AGA, demararea acțiunii în răspundere împotriva membrilor organelor sale de conducere, fără a desemna un mandatar special împuternicit cu efectuarea demersului judiciar pentru punerea în aplicare a acestei hotărâri, nu se poate considera că mandatul general de administrator cuprinde, implicit, acest mandat. Prin urmare, acțiunea în justiție promovată de administrator în numele societății, fiind formulată de o persoană care nu prezintă mandatul special cerut de lege, nu respectă cerințele impuse prin art. 155 din Legea nr. 31/1990 cu privire la condițiile speciale ale reprezentării, devenind, astfel, deplin incidente dispozițiile de drept procesual civil referitoare la lipsa dovezii calității de reprezentant, reglementate prin art. 161 C.pr.civ., care impun, în condițiile respectării regimului procesual al excepției, anularea cererii de chemare în judecată. (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 3726 din 5 noiembrie 2013)
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Law No 85/2006 on the procedure of insolvency was initially repealed and replaced by the Government Emergency Ordinance No 91/2013 on the procedures for preventing insolvency and of insolvency, which was in force only a few days, being declared unconstitutional, in its entirety, by the Constitutional Court of Romania. For this reason, it was necessary to adopt a new law on this matter (No 85/2014) which entered into force at the end of June 2014. In this study, the authors examine more extensively the principles of the procedure of insolvency, as well as the rights and the obligations of the participants, as currently regulated by Law No 85/2014, in comparison, when appropriate, with the previous law (Law No 85/2006). -
This study is dedicated to the analysis of the rules of the Civil Code established for „the presumption of the legal time of conception” and to „the presumption of paternity”, insisting mostly on the novelties brought by the current regulations and by the reactions of the specialized literature in this regard. Where appropriate, de lege ferenda proposals have been grounded in order to eliminate the reported legislative inconsistencies. Also, personal points of view have been expressed on various controversial aspects of the doctrine in relation to the interpretation of the legal rules established for these two important legal institutions.
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In the ambience of the legislative framework instituted by the new Civil Procedure Code, this study intends to make an analysis of several aspects referring to the determination of the jurisdiction of law courts which settle disputes in matters of administrative disputes, regulated by the Law on administrative disputes No 554/2004, in comparison with the procedural provisions instituted by the new Civil Procedure Code. In order to achieve the proposed approach, the study analyses the compatibility of the procedural rules of common law included in the new Civil Procedure Code referring to the determination of the jurisdiction of the law courts in relation to the provisions of the Law No 554/2004 regulating the jurisdiction of the law courts in matters of administrative disputes.
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As it can be inferred from the title, in this study the author intends to make an analysis of the institution of „exclusion of evidence”, which exists in the Romanian Criminal Procedure Code of 1968, which is maintained and further detailed in the new Criminal Procedure Code, differently interpreted in the doctrine and less present in the case-law from Romania. The study begins with a general and comparative presentation of the „sanction” in question in the former and in the present regulation, also being analysed the modification brought by the Law implementing the new Criminal Procedure Code. Within this study there are presented and analyzed the conditions in which the sanction of exclusion of evidence operates, as regulated by the present Criminal Procedure Code. However, the analysis focuses on the doctrinal interpretation of these conditions, by emphasizing the existence of a trend to relate the sanction of exclusion of evidence to the conditions of the sanction of nullity. As far as the author is concerned, she pleads for the interpretation and practical application of the sanction of exclusion of evidence separately from the conditions of nullity, subject only to the breach of the principle of legality and loyalty in providing evidence. For this purpose, the author also makes some interesting de lege ferenda proposals.
