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Mediation is governed by Law No 192/2006. In criminal matters, mediation is a restorative practice designed to solve the conflict between the parties involved. For a limited number of offences a criminal mediation agreement has the effect of preventing the initiation of criminal prosecution or ending criminal proceedings. This does not mean that parties may come to an agreement on the criminal aspects of the criminal proceedings as the legislator may seem to let us to believe. The only aspect on which an agreement may be reached concerns withdrawal of a prior complaint or reconciliation of parties in case of certain offences; these are impediments distinctively regulated in the mediation agreement. As a matter of fact, the consensus between parties in criminal proceedings, contained in the mediation agreement, exceeds the limits imposed by what is usually considered as the criminal aspect and the civil aspect of those proceedings. Through their will, parties may limit themselves to an agreement only on civil claims within criminal proceedings. -
The author analyses (partly critically) provisions of Article 16, Article 17 and Article 19 of the Romanian Labour Code concerning the written form of the individual labour contract, the obligation to inform the employee on the essential clauses of the contract and the sanction for the failure to fulfil the information obligation with a view to better correlate them with Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship and with the case-law of the Court of Justice of the European Union on this matter.
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In this study the authors criticize an isolated opinion (the vice of consent of lesion is inapplicable to the individual labour contract) expressed more or less recently in the Romanian legal literature. The provisions of Article 1221 and (limitatively and partially) Article 1222 of the Civil Code supplement the provisions of the Labour Code. On the other hand, Articles 1223–1224 of the Civil Code are completely inapplicable in case of individual labour contract.
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Economic offence can be defined as a deed that affects the legal regime established for carrying out economic activities. Unlike the Criminal Code of 1968, which dedicated the Title VIII of its special part to economic offences, the new Criminal Code contains only some economic offences, scattered among various titles and chapters.
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This article intends to provide an analysis of one of the cases of absolute nullity of marriage, expressly regulated by the Civil Code, i.e. bigamy. After a brief introduction follows the discussion of the sanction of a marriage concluded by an already married person whereby relevant provisions, conditions to be fulfilled for establishing the absolute nullity of marriage in case of bigamy, as well as some aspects pertaining to invoking good faith at the time of concluding the new marriage are taken into account.
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Among the means of protection of a creditor’s rights, the present Civil Code regulates the (Paulian) revocatory action within Articles 1562–1565. This civil action has been regulated also in the previous Romanian Civil Code. However, in this study the author examines exhaustively the admissibility conditions of the revocatory action in the light of the present Romanian Civil Code, which entered into force on 1 October 2011.
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This article analyses the categories of incompatibilities of judges regulated by the Civil Procedure Code, since its initial publication in 2010 to the amendments brought by Law No 76/2012 implementing Law No 134/2010 on the Civil Procedure Code and to the version that resulted after the republication in August 2012. In the original version of the Civil Procedure Code distinction was not made between cases of incompatibility, but the effects thereof resulted in the existence of two categories: absolute and relative incompatibilities. Following amendments brought by Law implementing the Civil Procedure Code, this distinction seemed to be established in the legislation. Nevertheless, after the republication of the Civil Procedure Code, marginal titles suggest the existence of some cases of absolute incompatibility and other cases of absolute incompatibility, which does not correspond to the content of the respective texts since only cases referred to in Article 41 of the Civil Procedure Code are absolute, while those referred to in Article 42 of the Civil Procedure Code are relative.
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This paper provides a legal analysis of rules in the new (Romanian) Civil Procedure Code on ensuring a unitary judicial practice, i.e. the appeal in the interest of law and, respectively, the referral to the High Court of Cassation and Justice for a preliminary ruling on the settlement of matters of law. While the appeal in the interest of law existed also in the previous Civil Procedure Code, the referral to the High Court of Cassation and Justice is a new procedure, not regulated by the previous Civil Procedure Code.
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Verificarea respectării normelor de competență se realizează atât de instanța învestită cu judecarea litigiului, la cererea părților sau din oficiu, cât și pe calea controlului judiciar, de către instanțele superioare învestite cu judecarea căilor de atac. În acest din urmă caz, hotărârea instanței de control judiciar prin care se statuează cu privire la competența unei instanțe de a soluționa litigiul este obligatorie, atât timp cât aceasta este irevocabilă. -
Știința juridică românească din ultimii 60 de ani este marcată major de activitatea desfășurată de Institutul de Cercetări Juridice al Academiei Române (în continuare denumit ICJ sau Institutul). Într-adevăr, creat într-o anumită conjunctură istorică, acesta a reprezentat prima „instituționalizare” a acțiunii de cercetare științifică a dreptului în țara noastră, și-a cucerit rolul de „centru” național de desfășurare și coordonare în domeniu, iar prin performanțele și rezultatele obținute s-a manifestat ca lider absolut în materie, beneficiind de contribuția fondatoare a unor personalități remarcabile ale științei dreptului românesc, precum Traian Ionașcu, Vintilă Dongoroz, Mihail Eliescu, Salvador Brădeanu, Eugen A. Barasch, Petre Anca, Yolanda Eminescu ș.a.
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Prin Sentința penală nr. 2751/20121 a Judecătoriei Timișoara, Secția penală, definitivă prin Decizia penală nr. 233/R/20132 a Curții de Apel Timișoara, Secția penală, inculpatul M.N. a fost condamnat pentru săvârșirea infracțiunilor de nerespectare a regimului armelor și munițiilor prevăzută în art. 279 alin. 31 C.pen. și ultraj contra bunelor moravuri și tulburarea ordinii și liniștii publice prevăzută în art. 321 alin. 1 și alin. 2 C.pen., infracțiuni săvârșite în concurs ideal. (Curtea de Apel Timișoara, Secția penală, Decizia penală nr. 233/R din 19 februarie 2013)
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Given the fact that „the annual EU budget incurs losses over 500 million euros due to fraud”1 establishing a European Public Prosecutor’s Office in order to combat offences that affect the financial interests of the European Union is deemed as a necessity. The difficulty of conducting cross-border investigations by national judicial bodies and the deficiencies of the international judicial cooperation in criminal matters require the creation of such an authority with exclusive jurisdiction in conducting acts of criminal investigation, prosecution and bringing to justice of those who are guilty of committing specific offences that affect the financial interests of the European Union.
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Based on historical considerations this paper analyses the need for a codification in the area of contraventions and argues in its favour. Taking stock of current issues revealed by relevant legislation and case-law, concrete suggestions are made with regard to the structure and provisions of such a statutory instrument. The author appreciates that a vigorous doctrinal debate would be needed in order to identify the best legal options.
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The article presents the characteristics of the civil action in criminal proceedings, points out the active and passive subjects of the legal action, and concludes that the civil liability insurer may not be obliged, in criminal proceedings, either jointly with the defendant or directly, to pay civil compensations to victims of road traffic accidents.
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Granting the potential contribution period for establishing the invalidity pension of persons classified within the 1st or 2nd invalidity degree who have lost their capacity to work due to common illnesses or accidents, not related to work, is currently conditioned by the obligation to complete a contribution period „in relation to age, provided in Table No 3” of the Law No 263/2010. The author considers that this provision, laid down in Article 76 (1) of the Law No 263/2010 on the unitary system of public pensions (as revised through Law No 37/2013), is unconstitutional as it is contrary to considerations made by the Constitutional Court in its Decision No 680/2012.
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A systematic analysis of relevant provisions of Law No 554/2004 on administrative disputes, Civil Procedure Code and Law No 192/2006 on mediation and organisation of the profession of mediator takes the author of this paper to the firm conclusion that in administrative disputes regulated by Law No 554/2004 mediation shall not be applied, but only the prior procedure provided by Article 7 of the Law No 554/2004.
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This paper enumerates and analyses the main sources of the Romanian fiscal law.
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The author analyses some specific features of the claim for compensation brought by private persons injured by unlawful administrative acts of authority or by public authorities’ refusal to solve claims concerning rights and legitimate interests of citizens. The claim for compensation has an accessory and subsidiary character in relation to the main claim for the annulment of the administrative act of authority, the repair of the damage being conditioned by the annulment of the act or by the obligation of the public authority to solve the claim of the private person. The study points out that the accessoriality relationship between the claim for compensation and the main claim bears consequences with regard to the jurisdiction of administrative courts.
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Company contract has been a complex issue under the Civil Code of 1864 and the Commercial Code of 1887, and continues to be so under the Romanian Civil Code of 2009. Since rules pertaining to company contract under previous statutes became obsolete and ill-adapted to practical needs and realities, an update was severely necessary in order to tune it with the alert pace of modern legal relations and EU norms. This paper presents the legal definition of company contract under the new Romanian Civil Code, with its advantages and disadvantages, which distinguish it from other types of contracts. Given the monistic approach of the new Civil Code, presently the contract of company is the common law of company law, Articles 1881–1948 of the Civil Code being subsidiarily applied to all companies enumerated by Article 1888 of the Civil Code. In this context, this study analyses the special requirements of Law No 31/1990, considered as a special rule in relation to the general provisions of the Civil Code.
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This paper presents the meaning of the term „assets” in Article 535 of the Civil Code and, at the same time, highlights its incorrect use in some of the other texts of the Civil Code and other statutory instruments, in disagreement with the new terminological option. Likewise, it raises a discussion on the lack, within the Civil Code, of a minimum of general rules dedicated to „common assets”, irrespective of their nature, quality of holders and source of community. Finally, following the presentation of negative consequences of the reported shortcomings, some legal remedies are proposed.
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The new regulation pertaining to business administration in the new Romanian Civil Code, much more detailed than the previous one, springs from the Civil Code of Québec. In Québec, the relevant legal framework provides for an original configuration of this source of obligations, imposing on it the condition of opportunity of the administration actions initiated by the administrator. Subject to this regulation are also the effects of inopportune administration, which aims at restoring the advantage brought to the person administered, without stating the legal grounds of such obligation, aspect which triggers questions to which this paper intends to answer, visiting, among others, other codification proposals on the law of obligations and relevant doctrine in this matter. At the same time, a theoretical definition is laid down for business administration, more nuanced than those elaborated after the new Romanian Civil Code has taken effect, definition which tends to be closer to the meaning of the new normative provisions.
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The new Romanian Civil Procedure Code has the indisputable merit of rebalancing the relationship between parties and courts, as well as dynamising the settlement of civil disputes. From both these perspectives, provisions of Article 200 of the Civil Procedure Code, pertaining to the check and regularisation of application for summons, mark a specific stage of solving some of the „prior” issues. Some of these not only notable but even surprising provisions will be further discussed.
