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This article has as object of study the issue of the marriages of convenience concluded for the sole purpose of ensuring the right of entry and of stay of a foreign citizen on the territory of Romania. In elaborating the study plan we have considered: a first introductory part which presents the normative basis relative to the legal regime of the foreigners; a section devoted to some decisions of the Romanian Constitutional Court which has been entrusted over time with analysing the concordance of the provisions regarding the legal regime of foreigners with our Fundamental Law; a point devoted to the European legislation relevant for the issue under our examination and a practical part which reveals how Romanian courts have settled cases concerning the assessment of the marriages of convenience. -
In this study, the author examines the incidence of the provisions of Article 1221 et seq. of the new Civil Code (concerning the lesion) in the field of „business law”. In this respect, after a series of general considerations on the lesion in the context of the new Civil Code, as well as in the context of clarification of the concept of „legal relationships arising in the business environment”, the author examines, in detail, the problems of contracts in the business environment, by emphasizing, within the latter, their division into balanced contracts and imbalanced contracts. Such being the case, the author concludes that, in principle, the lesion is inapplicable in case of balanced contracts, but is incidental, as a rule, in case of imbalanced contracts. -
In the Romanian civil law and civil processual law there are several particular situations that raise problems in terms of application in time of the civil law and of the civil processual law, especially in case of prescriptions, both to the extinctive prescription and to the acquisitive prescription. It is noted the fact that, in case of prescription of execution, the provisions of processual law are supplemented with the provisions of substantive law, therefore the conflict of laws in time arises not only between the civil procedure rules, but at the same time between the rules of civil material law as well. As regards the acquisitive prescription, the conflict of laws arises, in particular, between the provisions of the Decree-Law No 115/1938 and those of the Civil Code of 1864, and the situation is complicated by the fact that the moment when the prescription period starts to run is different in the two normative acts. The solution proposed by the doctrine to resolve the conflict of laws between the former Civil Code and the current Civil Code can be useful also in case of conflict in time between normative acts, in this case with regard to usucaption, in order to avoid that the applicable law be different from the law that has determined the applicable law. -
Termination of payments or insolvency is the patrimonial state of an entrepreneur that is outlined by the impossibility of creditors to pay. In this case, a collective procedure is in place to cover the insolvency debtor’s liability, a procedure governed by the provisions of Law No 85/2014 on insolvency and insolvency prevention procedures. This procedure, although it is a collective one, retains its contradictory character, litigious issues being usually settled with parties summoning. The fundamental principles of the civil process governed by the Civil Procedure Code also apply to insolvency. The Civil Procedure Code is the common law of insolvency where the Insolvency Law does not contain special rules. The way in which the participants in the procedure are summoned or notified, as well as the manner in which the communications of procedural documents and information in the insolvency proceedings are made, are simplified and dematerialized. Notifications and communications are made through the Insolvency Procedures Bulletin (BPI), an electronic publication managed by the Trade Registry. Anyone can get information on a business partner’s insolvency procedure through a simple search in this database. -
The institution of preventive arrest is regulated by the new Criminal Procedure Code in Article 223 and the following, representing the hardest preventive measure that can be taken against the defendant in the criminal prosecution phase, in the preliminary chamber phase or in the trial phase. As it is normal, the institutions referred to in the Criminal Procedure Code appear to be very strictly and concisely regulated, but even so, there may be problems in the practice of the courts and of the public prosecutor’s offices that function next to them, with regard to the interpretation of the rules. The measure of preventive arrest is the harshest of the preventive measures, because it completely deprives of liberty the defendant accused of committing an offence. In relation to the cases in which the measure of preventive arrest may be ordered and the conditions to be satisfied for taking this measure, the practice is not always unitary. If most of the cases expressly provided in the Criminal Procedure Code in which this measure may be ordered do not pose problems of interpretation, their applicability being strict and commonly understood by practitioners, some cases, also expressly provided, bring to light a series of profound legislative matters that will have to be solved, in the future, by means of the legislator’s action of amendment and supplementation of the provisions in the matter or by means of interpretation of these provisions by the High Court of Cassation and Justice in order to unify the judicial practice. -
The study is devoted to the analysis of the legal provisions on the civil liability for disregarding the copyrights, the rights related to copyrights and the sui-generis rights of the creators of databases. Specifically, there are discussed aspects such as: the basis of the matter, the nature of the infringed rights, the engagement of the civil liability (the nature of the legal actions regulated by Article 139 of the Law No 8/1996, the promotion of these actions, the jurisdiction to settle the litigations, setting of the damages, the provision of information and the provisional measures). The idea of the study starts, especially, from the little consideration given to the subject in the Romanian doctrine in the field of legal protection of the intellectual creation and in the numerous existing normative problems in the matter. -
Infracțiunea prevăzută de art. 337 C.pen. are ca situație premisă solicitarea expresă din partea organelor de poliție rutieră adresată conducătorului auto de a se supune prelevării de mostre biologice, în ambele modalități normative, atât în cazul refuzului, cât și în cazul sustragerii conducătorului unui vehicul de a se supune prelevării de mostre biologice necesare în vederea stabilirii alcoolemiei. -
In this study, the author has chosen to present and to analyze the offence of abandonment of family, provided in Article 378 (1) c) of the Criminal Code, because, with the stabilization of the judicial practice after the entry into force of the Criminal Code, it has been established a new outlook in respect of the approach of the constitutive elements of the offence and a clarification of the controversial aspects with regard to establishing the ill-intention of the offender. -
This article emphasises the special situations of some employees of the public hospitals, of the forensic medicine institutes and of the employees of some quarry mining exploitations, who have reported prejudices to their right to health and safety at work by the conduct of the employers, of the trade unions and even of the public institutions with powers of control and of ensuring the respect for these rights. -
In this article, the authors examine the modality of conducting the procedure of replacement of the measure of preventive detention with the preventive measure of judicial control on bail, respectively if, according to the regulations of the Criminal Procedure Code, at the same time with the admission in principle the judge examines inclusively the grounds of such application or, on the contrary, it requires an initial examination strictly in terms of fulfilment of the formal conditions, finalised with the admission in principle and with fixing the quantum of the bail, and only in the second stage the examination of the application on its merits in terms of its rightfulness. Likewise, there are analyzed the legal remedies against the interlocutory judgment of admission in principle, respectively of the interlocutory judgment whereby the judge rules on the merits of the case. Finally, the authors present the contradictory solutions at the level of different courts of appeal and of the High Court of Cassation and Justice, analyzing inclusively the report drawn up by the supreme court, the Panel for the settlement of some points of law in criminal matters. Likewise, they formulate a series of de lege ferenda proposals, which aim to eliminate the contradictions between the different articles of the Criminal Procedure Code in this matter. -
The authors of this study bring into question issues arising from the adoption of the new codes, the Civil Code and that of Civil Procedure, and analyze practical aspects relating to the laws implementing the two new codes impact on the related acts thereof. Adopting the new codes, in addition to establishing provisions to meet current requirements, has also generated numerous legislative interventions on the related legal acts. To facilitate tracking legal information, republication of these related acts was provided for, operation which, most often created many problems regarding proper preparation of the re-publishable forms of the concerned acts. Furthermore, the authors also present statistics about the number of normative acts needed to be republished under the new codes and the concrete way to fulfill this task, specifying both the acts in respect of which the re-publishable forms have been formally drawn, and those in respect of which this obligation has been fulfilled by republishing thereof in the Official Gazette.
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This study starts from a case settled in the preliminary chamber by a court that has proceeded to the exclusion from the probative material of some illegally obtained evidence, but also of those derived therefrom. In the analyzed situation in the context of the preliminary chamber it was found that there had been a confusion which led to obtaining data on a person’s financial transactions in an unlawful manner, namely by an ordinance that had not been validated by a judge of rights and freedoms, as the provisions of Article 138 (9) of the Criminal Procedure Code would have required.
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Problema executării silite este reglementată în mod sumar în instrumentele europene adoptate în domeniul cooperării judiciare civile, astfel încât, în prezent, această materie este guvernată de principiul teritorialității procedurilor de executare. Aceasta înseamnă că procedurile de executare silită sunt reglementate în principal de legislațiile naționale, instanțele statului membru de la locul de executare dispunând de competență exclusivă pentru rezolvarea tuturor incidentelor rezultate din activitatea de punere în executare silită a titlurilor executorii.
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According to the Romanian laws in the matter, the President of Romania, the senators, the deputies, the presidents of the county councils, the mayors, the county counselors and the local counselors are elected by the people by direct vote. Instead, the vice-presidents of the county councils and the deputy mayors of the local councils shall be elected by the indirect vote of the representatives elected in the county councils and respectively, in the local councils. Examining this issue regulated in several laws successively amended and supplemented, which results in a series of confusions regarding the enforcement, the author concludes that it would be reasonable and advisable for the vice-presidents of the county councils and for the deputy mayors of the local councils to be elected by a direct vote. -
The article deals with the arbitrability of disputes arising in connection with intellectual property rights. The author analyzes and proposes possible solutions, given the arguments in favour and against the arbitrability of such disputes, based on the interpretation of the relevant provisions contained in the new Civil Procedure Code and in the special legislation edicted in matters of intellectual property rights. The last part of the study comprises a comparative analysis of the possible solutions adopted in the matter of arbitrability of these disputes in some European countries, in the United States of America and in Canada. -
The idea and, especially, the usefulness of this study have been suggested to us by some amendments brought to the Law No 273/2004 on the procedure of adoption by the Law No 57/2016, including with regard to the issue of the jurisdiction of the Romanian courts in matters of adoption, by the provisions of Articles 1066–1082 of the Civil Procedure Code, referring to „the international jurisdiction of the Romanian courts”, as well as by the existence in this area of some norms still involving an effort of logical-legal polishing. Specifically, we have subjected to analysis the hypotheses of international jurisdiction of the Romanian courts, the material and territorial jurisdiction of the tribunal, respectively of the Bucharest Tribunal, with regard to the applications in matters of adoption. -
This paper makes a detailed examination of certain essential provisions in relation to the preparation of the contract. The examination is focused especially on the novelty issues entered by the Law no. 287 of 17 July 2009 on the Civil Code which repealed the Civil Code of 1864 into force until 30 September 2011. The author proposed an examination based upon rigor and objectivity in his attempt to understand the true meaning of the provisions of the new regulations. To this end, the doctrine and the case law in the matter are taken into consideration, and especially the solutions for each issue under discussion are filtered by the domestic and external case law. Likewise, references are made to the legislations of other states, which represent sources of inspiration for the editors of the new Civil Code, for the purpose of understanding accurately the provisions related to the conclusion of the contract. At the same time, certain debates of the doctrine and case law are briefly examined as regards the interpretation given to certain provisions introduced in the new Civil Code and, as the case may be, a critical analysis is carried out as well, in relation to these issues. -
Within the new Romanian law for preventing insolvency and for insolvency (Law No 85/2014) a regulation of novelty is represented by the provisions of Article 182 (1) and (3), according to which the judicial administrator/judicial liquidator may be held liable for exercising his duties in bad faith or in gross negligence, but not if he acts in good faith within the limits of the duties provided by the law and of the available information. This new regulation in the matter is analyzed in detail in this study. -
In this study, the author, while reporting certain provisions of the new Civil Code (Law no. 287/2009) and of Law no. 71/2011 for the implementation of the new Code, as compared to certain provisions of the Government Emergency Ordinance no. 44/2008 regarding the performance of the economic activities by self-employed persons, believes that through Art. 11 of Law no. 71/2011, one has not granted legal personality to the individual and family enterprises regulated by the ordinance mentioned above, while on the contrary, through Art. 2324 (4) of the new Civil code (in force as of 1 October 2011), one has implicitly amended Art. 31 of the said Emergency Ordinance. Finally, the author opinionates that the “Monist” concept of the new Romanian Civil Code (namely, the cancelation of the trade law and the existence of a unique civil law, which also incorporates the former trade law) is more of a formal issue, not a substance one. -
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In this study, the author brings back to memory a doctrinal discussion, inspired by the decision of a tribunal (seized as a court of judicial control), published by the „Romanian Journal of Law”, in two issues, in the period between 1983 and 1984, a discussion in which its protagonists, accepting the idea of an extensive interpretation of the provisions of the old Civil Procedure Code regarding the procedure of verification of scripts, concluded that this procedure may also cover the application for summons, in case that one of the applicants claims that he did not initiate the trial, the signature on the application is not his, nor did he mandate his brother (the co-applicant) to initiate the trial in his name. The doctrinaires have reached, in illo tempore, to the conclusion that the denial of the signature on the application for summons by the person to whom the document is attributed, in fact challenging of the quality of party to the trial, as an applicant, may be invoked, for the first time, also in the means of appeal, the court of judicial control following to submit the application for the procedure of verification of scripts. The tribunal has appreciated that the verification of the signature on the application for summons could only be made by its indictment as false and sending the case to the prosecutor. This point of view was not accepted by the person filing the recourse who considered that the proof of his statements could also be made through a procedure of verification of scripts of the document, before the civil court (which could order, if necessary, a graphological expertise to be made), not wanting to expose his brother, or himself, to criminal investigations. The fact that the second author involved in the discussion claimed the lack of consistency of the claim that the person filing the recourse has not acquired the quality of party (namely of appellant), since he could only exercise the recourse as a party (and not as a third party), has offered the occasion to the last two authors participating in the doctrinal discussion to make the distinction between the quality of party to the trial and the processual quality.
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The issue of territorial planning and urbanism became especially important after the entry of Romanian in the European Union, due to the complexity and multitude of problems imposed by the dynamics and evolution of society. The ambience of constitutional provisions, conventional and community rules, the issue of the administrative court institution regarding urbanism and territorial planning and, notably regarding cancellation of building permits, acquires great importance and is intended to guarantee the fundamental rights and freedom of citizens in this complex field, less explored in literature. Based on these challenges, this study analyzes several issues that rise interest in attacking building permits in administrative court. -
In the context of integration of Romania into the European Union and of the normative acts adopted by the Romanian legislator in order to ensure the compatibility of the internal law with the European Union law, the tax disputes and, in particular, tax administrative disputes are conferred a great importance. In the ambiance of the European rules and of our internal law, this study intends to analyze several aspects regarding tax administrative disputes, as well as the application of the principle non bis in idem in the matter of tax administrative disputes, in relation to the case-law of the European Court of Human Rights and of the European Court of Justice of the European Union. -
The amendments brought to the new Civil Procedure Code by the Law No 138/2014, especially in the matter of enforcement, have produced significant mutations in the matter of administrative disputes as well. In the context of the amending provisions brought to the Law on administrative disputes No 554/2004 by the Law No 138/2014, this study intends to make an analysis of the judicial remedies that may be exercised against the judgments delivered by the background courts in matters of administrative disputes, as well as an analysis of the procedure of enforcement of the final judgments, delivered by these courts.
