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In this study the author resumes an older discussion within the Romanian doctrine of civil law, insofar if and in the light of art. 885 of the current Civil Code (Law no. 287/2009, republished on July 15th 2011 and entered into force as at October 1st 2011), the registration in the land book has or has not constitutive or translative effect of rights, in case of real rights in immovables. -
Since the new Romanian Civil Code entered into force (Law no. 287/2009, republished on July 15th 2011) on October 1st 2011, the author examines in which circumstances the new legislation regarding the divorce cases on the docket (in first instance or appeal) might or not apply as at the date of entry into force of the new law (October 1st 2011). The author concludes that in the field of family right, due to the absence of expressly contrary provisions within the Law no. 71/2011 concerning enactment of the new Civil Code, the processes and requests on the docket are governed only by the law in force at the date the action (summons) was advanced. Therefore, the new law cannot be enforced (in absence of an expressly contrary provision) for a case already on remedy (appeal, second appeal).
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This study accurately describes some of the controversial aspects within the labour legislation: applicability, in terms of probation, of the regulations regarding the period of probation, concluding that art. 31 par. (3) of the Labour Code (termination of the employment agreement without notice and justification) is also effective in this case; decrease of working time from 5 business days to 4 business days per week in case of temporary reduction of activity, with the specification that the alteration of this program can only be operated if a minimum 30 business days reduction of activity has already occurred; the deadline by which the employer must enforce disciplinary sanctions, pointing out that the deadline of 30 days is computed as of the date the employer receives the disciplinary investigation report which qualifies the deed of the employee as disciplinary offence, while de deadline of 6 months is computed as of its time of perpetration; the parties to the collective negotiation at the unit level and the parties to the collective employment conflict at the same level, stating that, in case of such conflict, only the representative union or the employees’ representatives, as the case may be, can act as party on behalf of the employees and not the representative union federation which, under certain conditions, can participate in the collective negotiation; cumulative number of employment agreements with different employers, specifying that, basically, no definite and generally valid answer can be given, as the position of each employer within such agreements is fundamental (if accumulation is accepted and to what extent). In conclusion, the settlement by law of these controversial aspects is suggested.
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Within the study hereunder, the legal regime of joint ownership, in both its forms (common and temporary, respectively forced and perpetual) is analyzed, from a critical point of view, with special regard on the second type. The author analyzes the differences between the legal regime of these types of ownership established under the Civil Code (Law no. 287/2009, as republished) by comparison with the regulation of the Civil Code of 1864. The inconsistencies instituted under the new regulation, the illegitimate and unconstitutional nature of some of them, as well as the recent legislative amendments intervening in this respect are analyzed, all these being accompanied by examples extracted from the Romanian and foreign jurisprudence.
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The interest loan is a form of the consumption loan, having as legal grounds, mainly, the provisions of the new Civil Code, art. 2167-2170. This agreement is presumed onerous, the borrower having the obligation to pay, in due time, an amount of money or other type of goods, as interest, representing the equivalent amount of using the borrowed capital. The legal regime of the agreement, including of the generating interest, in its diversity of types, forms the object of the analysis of this study, conducted both according to the common and special provisions of the new Civil Code and in the light of the special legislation, the Government Ordinance no. 13/2011.
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The author briefly examines the issue of securities in the Romanian private law and she further presents the regulation of their administration according to the current Romanian Civil Code (Law no. 287/2009, republished on July 15th 2011), entered into force as at October 1st 2011.
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The present study aims to examine the law principles issue based on principles of doctrinal realities under which there are principles of law, general principles of law and specific principles of various branches of law. The 1st Article of The New Civil Code is a challenge for us because this text introduces customary legal and legal doctrine among the classic sources of law. The legal doctrine is recognized by the Civil Code as a work of philosophical synthesis which it can be valued only by the jurisprudence. All in all the general principles of law- the rule of law, equity and justice, legitimacy and legal regulations- are applicable to all branches of law.
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Potrivit dispozițiilor art. 25 din Ordinul CSA nr. 20/2008, în cazul în care în unul și același eveniment au fost prejudiciate mai multe persoane și valoarea totalã a prejudiciului depãșește limitele de despãgubire specificate în polița RCA, despãgubirea va fi stabilitã în funcție de cota-parte din valoarea prejudiciului ce revine fiecãrei persoane îndreptãțite la despãgubire. -
In the study hereby, the author provides a critical analysis of the various positions adopted by the U.S. Supreme Court of Justice in terms of the relationship existing between the practical need of making use of hearsay evidence in criminal proceedings and the obligation incumbent upon the legal bodies to guarantee the culprit the effective exercise of the opportunity to test via counter interrogation the reliability of such evidence. The author proposed that the analysis of judicial practice to be carried out compliant with the structure followed within the specialty works in the United States, in order to distinctly put forward each category of cause in which a conflict might arise between the admissibility of hearsay evidence and compliance with the procedural guarantees established under the law in favour of the culprit and to distinctly highlight, for each category in question, solutions framed by the U.S. Supreme Court of Justice with the view to settle the conflict arisen.
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In the study hereby, the author sets under review the body search institution, from the perspective of theoretical and practical approaches. Body search has a distinct character, being undertaken in some cases separately from other evidence procedures, but it is also frequently undertaken on home searches, detention or arrest of a person. The author puts forward, within the study, the main legal regulations applicable in the field of body search, focusing on the new amendments to the new Code of Criminal Procedure, and reasoning some de lege ferenda proposals.
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In the study hereby, the author makes some de lege ferenda proposals with reference to amending/supplementing Article 28 of the Companies Law 31/1990 (republished on November 17th, 2009), text governing the obligations of the constituent assembly of the joint-stock company incorporated by public subscription.
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Taking our stand upon the differing regulations under Article 283 and Article 315 of Law No. 1/2011 on National Education (texts according to which, as far as the pre-university teaching staff is concerned, recovery of damages to the employing unit in consequence of patrimonial liability takes place based on a charging decision, while, as far as the higher education teaching staff is concerned, the recovery in question takes place according to the labour law, so, as a rule, by way of the employer’s proceedings before the Labour Court of jurisdiction), the author makes a series of critical approaches (pointing out that this distinction in the procedure is not justified) and, concurrently, puts forward de lege ferenda proposals.
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In the jurisprudence of the European Court of Human Rights, the issue of a broad interpretation of the right to marriage is all the more acutely debated, while the Court is beset with applications filed by homosexual and transgender individuals to have this right recognized. In the current state of the jurisprudence of the European Court of Human Rights, the marriage of a couple in which one of the partners has resorted to a sexual Convention through gender reassignment surgery is considered legitimate (within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms), stating that this is also a case of heterosexual marriage. However, so far, the European Court of Human Rights has not considered legitimate marriages between persons of the same biological sex (gay or lesbian).
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The existence of the law, of its validity are extremely important both for its knowledge, and for its application and compliance. By applying a general principle of law that nemo censetur ignorare legem, we consider that the publication and knowledge of law are essential conditions for not be subject to unpredictable legislative events, with all the consequences arising therefrom. To avoid such events, the law, in its broad or narrow sense, is subjected to certain rules of validity. Among them lies the determining of the moment when the law enters into force and the one the law comes in force.
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Following the entry in force of the Civil Code (Law No.287/2009, republished) on the 1st of October 2011, which repealed the Family Code, and the accordingly amendment of the republished Law No. 119/1996 regarding the civil status acts, the author conducts an extensive analysis of the legal provisions related to the conditions of form which must be complied with for celebrating a valid marriage. This study examines the formalities provided by articles 278-292 of the Civil Code.
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In the study hereby, the author makes a comparative analysis of regulations covering negative prescription under the current Civil Code (Law No. 287/2009, republished on July 15th, 2011 and effective since October 1st, 2011) as compared to the previous legal regulations (in particular, Decree No. 167/1958 on negative prescription). At the end of this comparative analysis, the author concludes that the relevant regulation covering negative prescription is manifestly superior under the current Civil Code, as compared to Decree No. 167/1958.
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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. -
The courts can contribute, within their competencies, to ensure supremacy of the Constitution; this also involves the ability to directly implement some of the constitutional regulations. In the context of the complex process of human rights internationalization, certain analysis and solutions concerning the relationship between the international and domestic human rights regulations and hence interpretations of the provisions covered by the Constitution on this issue appear more frequently within the case law. In this study the author analyzes the role of national judges in applying the (European) Convention for the Protection of Human Rights and Fundamental Freedoms under the legitimacy which is conferred upon them by the provisions of Art. 20 of the Constitution, republished; this analysis is based on case law matters on criminal appeal, governed by Art. 141 paragraph 1 of the Code of Criminal Procedure.
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The success of the states global fight against illicit drug trafficking requires effective international cooperation in the judicial sphere. Controlled drug delivery method involves cooperation of several countries to identify, to land and hold liable in criminal terms the drug traffickers who carry out criminal activity or part of this activity in several states. Throughout the article, the author makes a critical examination of national legislation and judicial practice in the field of controlled drug delivery institution.
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In this study, the author examines the possibility of enforcing precautionary measures on the assets of third parties for the offense of money laundering; the analysis is carried out from the point of view of the doctrine, comparative law and the case law of the courts and the European Court of Human Rights. Alpha Having regard to the specificity of this offense and the special provisions in the field, the author considers that the goods of third parties, persons not subject to criminal prosecution or trial, must be frozen for special forfeiture.
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In this study the author analyzes the requirements for the admissibility of provisional release under judicial control and provisional release on bail from the point of view of the Code of Criminal Procedure in force and the new Code of Criminal Procedure, the internal doctrine and the (European) Convention for the Protection of Human Rights and Fundamental Freedoms and the Supreme Court’s case law and practice of the European Court of Human Rights. The general conditions for ordering judicial control and judicial control on bail are also presented - preventive measures stipulated in the new Code of Criminal Procedure, which no longer provides for the institution of provisional release.
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The tax return is generally regulated in the Fiscal Procedure Code, being the fundamental part for establishing tax liability. Both procedural matters and the capacity as a taxation decision assimilated act or a taxation base related act, as appropriate, gives it a distinct legal status, pointed out in this paper.
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Administrative jurisdiction on public procurement is carried out by the National Council for Solving Complaints and finalized with the pronouncement of certain administrative and judicial acts, called decisions. These can be attacked by complaint to the courts of appeal, whose decisions are final. The 2010 amendment to the Government Emergency Ordinance no. 34/2006 on awarding public procurement contracts, public works and services concession contracts introduced the obligation of those who make complaints to pay legal fee in an amount which even now raises some questions. Alpha The practice of all courts of appeal in the country is to accept to charge the complaints with either 4 lei or 2 lei. Constanþa Court of Appeal chose to break away from this unwavering practice of the courts of appeal which it itself promoted until recently and to require claimants to pay a value charge according to the amounts provided for in Art. 28717 paragraph 1 of the Ordinance, namely between 0,01 lei and 1,100 lei, and not fixed amounts of 4 and 2 lei. This study enounces the two different solutions found in courts of appeal case law and the arguments that they are based on, whilst the author tries to generate thoughts on the issue of charging the complaints not only to those involved in the judicial process of settlement of the latter and the litigants, but also to the legislative body, with an eye to prompt and definitive clarification thereof.
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Analyzing the jurisprudence of the past three decades whereas tort law is concerned, one can easily find some gray areas, where the doctrinal principles developed so far seem to have fallen behind the realities of our modern society. Such a gray area is being analyzed by the author of this study, and it is attributed by modern doctrine to the jurisprudence applying the precautionary principle. Developed in the area of international public law, adapted to private law, and embraced by modern doctrine, the precautionary principle is a prominent figure in European legislation, as well as in our national laws, and lately also in court decisions.
