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According to art. 1088, paragraph 1 of the Romanian Civil Code (in force, “For obligations having as object any amount, damages for performance shall comprise only the legal interest, except for the special rules regarding trade, guarantees and companies”. The author criticizes this regulation that actually leads, in numerous situations, to damaging the creditor, if the maximum interest limit is lower than the amount of the damage caused by failure to perform or late performance of the obligation to pay an amount, showing that the above-mentioned legal solution, taken from the French Civil Code, is not presently provided in the Italian, German, Swiss and English systems. Moreover, the new Romanian Civil Code, published in July 2009, but not yet effective, stipulates (in art. 1535, paragraph 3) that, if the interest due (for failure to perform the pecuniary obligation in due time) does not cover the entire damage incurred, the creditor shall be entitled, in addition, to damages for any additional damage incurred due to debtor’s failure to perform the obligation. In the end, the author considers that the regulation of the possibility for reduction of damages by the court would not be opportune – at present – in Romania. -
Starting from two recent decisions of the Constitutional Court of Romania, according to which the constitutional contentious court ruled that both the grounds and the purview of its decisions are generally mandatory, the authors of the study perform an examination of the case law of this Court, meant to support the stated rule. Based on numerous examples from the Constitutional Court case law, the importance of the grounds of decisions made by the court is emphasized, in particular when in such grounds the Court mentions the consequences of ascertaining the non-constitutionality of the texts under review. The conclusion of the study is that, in essence, the observance of the general mandatory character of the decisions of the Constitutional Court is not only a way to make its purview more efficient, but also to make the grounds more efficient, or the Court’s interpretation of the fundamental law. At the same time, an opinion is expressed that, in order to guarantee the Constitution, the intervention of the Constitutional Court is not only legitimate, but also necessary, in what regards the provision, in the contents of the grounds of decisions, considering the specific effect of constitutional law attached to any of the decisions of the Constitutional Court, of what the effects are of finding the texts under review constitutional or even non-constitutional. -
The author, after explaining the „valorism” and „value debt” concepts, enters into details on the issue of aggregation of default interests (art. 1088 of the Romanian Civil Code – 1865 –, still into force), reaching a conclusion, which agrees to a minority juridical doctrine, that the interest may be aggregated to a value debt.
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In the study above, the author examines the issue of redemption of own shares by a company admitted for trading on a regulated market, under the conditions of art. 1031 of Law no. 31/1990 regarding trading companies (republished on November 17, 2004), of EC Regulation 2273/2003 and of Directive 71/91/EEC. For this purpose, the author reviews: how the redemption of own shares is performed in practice, the juridical effects of such redemption, the funds employed to make the redemption; various specific cases in the matter.
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In considering the very succinct legal regulations (art. 191–203) regarding limited liability companies in Law no. 31/1990 – the Companies Law (republished in 2004, as subsequently amended and completed), the author only examines issues related to such commercial companies, namely: the revocation of their directors, on the one side, and the transfer of shares in limited liability companies, on the other side.
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Starting from the hypothesis of art. 1073 of the Civil Code („the creditor is entitled to obtain the exact fulfillment of the obligation”, otherwise being „entitled to remedies, the latter being called “damages” in the Romanian legal language), the author makes, in this study, a review of the issue of evaluating default damages in the case of money obligations, namely of the (default) interest, then detailing, in the third part, the legal regimen of legal interests in commercial matters.
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In this study, after a brief introduction on parental rights and obligations, the author examines, in the light of the legislation currently in force (Family Code – amended by Law no. 288/2007, and Laws no. 272/2004 and no. 273/ 2004), and in the light of the future Romanian Civil Code (published on July 24, 2009 but not yet into force), the status of parental rights and obligations, provided that the child has been legally entrusted to other persons, discussing, in this manner, with priority, the extent to which the parents are entitled to provide their consent to the marriage of their child (if the child is a minor) or to his/her adoption.
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According to art. 32 of the Land Property Law no. 18/1991 (republished on January 5, 1998) in the case of „establishing” the right of ownership as provided in this law, the land thus attributed to individuals „shall not be alienated by documents between the living for 10 years, starting from the beginning of the year following the one during which the property was registered, under the penalty of absolute nullity of the alienation document”, the city hall, the prefect’s office, the prosecutor’s office or any other interested person being entitled to file a claim for the ascertainment of nullity. The author discusses the general cases resulting from this text of law, and in principal whether the 10-years term lapses (is counted) from the „registration” of the property in agricultural registries or from its „transcription”, or „registration” of an alienated property in transcription registries, namely its „registration” in the Land Book.
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Lately, the National Council for the Settlement of Challenges faced numerous challenges against acts of various commercial companies, without having the capacity of contracting authorities, but who benefit from public funds for the performance of certain public interest projects, companies which, according to the financing agreements concluded with the financing bodies, should have made any acquisitions necessary for the performance of the projects based on the Government’s Emergency Ordinance no. 34/2006 on the award of public procurement contracts, of contracts for the concession of public works and of contracts for the concession of services. The study represents the second part of an article with the same title, published in issue no. 7/2010 of this magazine and is intended to present a comparison of diverging solutions to such challenges and the grounds they are based on, as encountered in the recent practice of the Council and of control bodies.
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In this study, after briefly describing the concept of sovereignty, the author successively examines the sovereignty of member states in their relation with the European Union, express restrictions of sovereignty (changes which occurred in the constitutions of member states); certain issues regarding the permanent integration of member states.
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According to the provisions of art. 270 para. 2 of the Romanian Customs Code, as amended by Law no. 291/2009, for the offence of smuggling to exist, it is necessary that the customs value of the goods or merchandise concealed from customs control exceed RON 20,000 in the case of products subject to excise tax and RON 40,000 for other goods and merchandise. This study is aimed at the identification of the procedures for establishing the customs value of the merchandise, according to the provisions of the Customs Code, of the Regulation for its application and of the Norms applicable to travelers and other individuals, as well as the limitations regarding the ordering of an expert report in the case, by way of ordinance issued by the prosecutor performing the criminal investigation.
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According to the decision of the supreme court, further to the judge admitting the complaint against the resolution not to initiate criminal investigations and sending the case to the prosecutor, the latter cannot be obliged to initiate the criminal investigation; in his turn, the judge cannot hold the case for settlement, the consequences being very serious in what regards free access to justice.
