The civil liability of judges and prosecutors for damages caused by torts related to their professional duties is a subject of actuality much debated by legal professionals, the media and the civil society as a whole. Problems such as judicial errors, arrest followed by exculpatory decisions, controls and other forms of discriminatory police abuse performed sometimes at the request of prosecutors are just some of the examples observed by many contemporary societies as dangers for the human rights and liberties. The constitutions, laws and case law provide for answers to the questions in connection with the tort liability of judges and prosecutors. Latest, it becomes visible worldwide a certain way of thinking which advocates for more restrictive rules regarding the subject. This phenomenon is noticeable not only in Romania but also in other countries, such as the United States and France. The paper proposes a synthesis of the constitutional, legal framework and case law in the United States of America, with a special focus on the Supreme Court of Justice cases regarding the civil liability of judges and prosecutors. Since the notions of absolute immunity and qualified immunity in this context are quite unknown to the Romanian legal readers, this paper should add some value to their knowledge of the way of thinking the relation between independence versus accountability of the judiciary specific to the legal traditions of the U.S. From the perspective of the U.S. case law, the paper presents some of the most relevant cases of the Supreme Court of Justice such as: Stump v. Sparkman, Griffith v. Slinkard, Yaselli v. Goff, Imbler v. Pachtman, Burns v. Reed and Buckley v. Fitzsimmons. Although quite old some of them, the majority of the conclusions resulted from this case law are still valid today, with nuances, mainly in the area of the qualified immunity for prosecutors.

Rațiunea vulgară ne spune că judecătorul espus electivităței timpurare nu poate avea principala sa însușire, aceea a independenției, garanția imparțialităției sale. Temerea și dorința, aceste două mobile cari au o înrâurire atât de mare asupra acțiunilor noastre, vor aduce o egală atingere libertăței morale a judecătorului, vor fi o piedică stăruitoare a îndeplinirii misiunei sale sociale.

In this study we intend to make an analysis of the contestation to the insolvency condition, namely the processual means that may be used by the debtor against whom an application for opening the insolvency procedure has been filed. In the light of a rich judicial practice in this area, we consider it appropriate to compare the legal provisions found in Article 72 of the Law No 85/2014, as amended and supplemented, with the jurisprudential interpretations, in order to better understand this means of defence made available to the debtor by the legislator. Thus, we will observe the nature and the conditions in which the debtor’s right to contestation may be exercised, the reasons which can be invoked and the evidence that he can use to demonstrate the lawfulness of his contestation, as well as the legal effects and consequences determined by this procedure.

The study presented by the author is a subject matter of acute timeliness, especially from the perspective of the fact that the immovable assets do not fall within the scope of some unique rules on their sale, since there are specific legal provisions in relation to different categories of immovable assets and the place where these are located. The paper analyzes the contract of sale of different categories of real estates, such as the lands, the buildings and related land, the lands located inside built-up area, the agricultural land located outside built-up area, as well as the forestry lands, emphasizing the particularities of each type of sale. A special place within the study is occupied by the examination of the legal rules applicable to the sale of the lands located outside built-up area, the conditions in which such real estates can be acquired through sale, the persons who may act as buyers, including the foreigners, the stateless persons and the legal persons of the nationality of other state than Romania. Likewise, there are emphasized the specific phases of exercising the pre-emption right of the co-owners, lessees, neighbouring owners and of the state in case of the sale of the types of real estates analyzed, as well as the sanctions applicable in case of the violation of the rules for the exercise of the pre-emption right in this matter. The study outlines the field of action of the future research, based on the legal doctrinal opinions expressed in the researched space and on the personal views of the author, wishing to form a bridgehead for further developments.

In this article the author intends to debate, from the perspective of the constitutional texts, developed in the Law No 303/2004, the complex problems of the status of prosecutors, especially since the legal nature of the Public Ministry is not definitively clarified, the legal texts, including the norms written down in the new Criminal Procedure Code, failing to configure the position of the prosecutor’s offices between the executive power and the judicial power. If, from the point of view of the constitutional role, the prosecutor is closer to the Executive (he permanently defends the general interests of society, the rule of law, as well as citizens’ rights and freedoms), from the point of view of the involvement of prosecutors in the activity of administration of justice of the courts of law, they share similarities with the judicial power, without being, however, part of it. From this perspective, the author analyzes, among others, the constitutional grounds of the status of prosecutors and their independence, shows why the prosecutors can not benefit from irremovability, presents the content and character of the authority of the minister of justice over the prosecutors, as well as the issue of incompatibility of the members of the Public Ministry.

The rule of issuing urban planning permits (building or demolition permits) under the reserve of respecting the civil rights of third parties has two important consequences. First, it makes it clear that this sort of administrative permit does not affect the rights of the third parties; second, it means that the subsequent civil right is not taken into consideration in the management of the file and the issuing of the permits. The said permits solely assure the respect of urban planning law, excluding private law obligations and servitudes.

The authors present another opinion on the subject regulated by Article 132 of the Law No 78/2000, arguing that it constitutes a special legal aggravating circumstance for the offences of abuse of office and usurpation of the function provided by Article 297 and Article 300 of the Criminal Code. In the current regulation the abuse of office provided by Article 297 of the Criminal Code by reference to Article 132 of the Law No 78/2000 is not a criminal offence assimilated to corruption offences and, consequently, may not fall within the competence of the NAD unless the damage caused exceeds the ROL equivalent of one million euros. Drawing attention to the fact that the provisions of Article 132 of the Law No 78/2000 are not precise, predictable, they bring arguments in support of the thesis of the susceptibility of unconstitutionality thereof.

The issue of the correct determination of the moment when it begins to run the time limit for declaring the contestation for the prosecutor against the interlocutory judgments by which the judge orders the rejection of the proposal of preventive arrest or of house arrest, the revocation of the preventive measure or the replacement of the preventive measure with a slighter measure has a particular importance given that it will also mark the moment when this processual right of the prosecutor will cease, under the terms of Article 268 of the Criminal Procedure Code. As we will show in the arguments offered in our paper, the criminal processual provisions do not provide for a distinction as to the moment when the time limit for declaring the contestation begins to run as the prosecutor or the processual subjects were present or absent when the judgment was pronounced, but provide expressis verbis such a distinction between the prosecutor and the processual subjects in this respect, the only rigorously correct interpretation is the one showing that, always in the matter of preventive measures, the time limit for declaring the contestation begins to run from the pronouncement of the judgment in relation to the prosecutor, whether or not he was present at the time of pronouncement.

One of the forms under which it is presented the right of joint ownership on forced quota-shares is represented, in the conception of the legislator that has created the current Civil Code, also by the periodic ownership. Placing this form of joint ownership within the joint ownership on forced quota-shares is the creation of the legislator, but it is not sheltered from criticism. Among the issues raised by the regulation of the periodic ownership in Articles 687–691 of the Civil Code is also the obligation of compensation and the exclusion, legal provisions upon which the authors of this study have insisted. The provisions of Article 691 of the Civil Code are criticizable both in the way they are formulated and in respect of the effects that the legislator has pursued.

In essence, the expropriation procedure goes through two stages, the administrative stage and the judicial stage, the common law in the matter being represented by the Law No 33/1994, as amended and supplemented. The litigation procedure is criticizable however, in many aspects, for the lack of transparency and of access to data, from the perspective of the holder of the restricted real right. Thus, although in the preamble of this normative act it is affirmed the necessity of equalizing the right of private ownership with the public interest, the latter has priority in many of the situations that have arisen in practice.

In this study, the author makes an analysis on the right to life, with emphasis on the moment when the right to life begins to flow, including from the phase of conception of human life, by reference to the case law of the European Court of Human Rights and of other courts outside the European Union, following that, in the final part of the study, an analysis be made on the current criminal provisions protecting the right to life in its incipient phase and the compliance of these provisions with the standard required by the Convention.

This study deals with the mediation in the criminal side of the trial. The legislator has limited the scope of application of the mediation in the criminal side of the trial to the offences in respect of which the criminal action is set in motion upon the prior complaint of the injured party and is extinguished by the withdrawal of the prior complaint, on the one hand, and to the offences in respect of which the criminal action, although set in motion ex officio, is extinguished by the reconciliation between the injured party and the perpetrator. The mediation procedure in the criminal side of the trial is marked by three stages: the pre-mediation stage, the stage of actual mediation and the stage of closing the mediation. The pre-mediation stage is marked by an initial moment, when the conflicting parties present themselves to the mediator, and by a final moment, when mediation is either accepted or refused. The stage of actual mediation takes place in the form of some mediation sessions and it concentrates the most important activity of the mediation procedure. After the mediation takes place, the procedure is closed by concluding an agreement between the parties as a result of the settlement of the conflict, by the mediator’s finding of the mediation failure or by the submission of the mediation contract by one of the parties. Within the mediation in the criminal side of the trial, three legal acts are drawn up: the mediation contract, the minutes of closing the mediation and the mediation agreement. The mediation contract ends at the final moment of the preliminary stage of the procedure, when the conflicting parties appear before the mediator. Upon closing the mediation procedure, the mediator draws up a minutes. It is mandatory to draw up the minutes, regardless of the modality by which the mediation procedure is closed. If the mediation is closed by settling the conflict between the parties, the minutes of closing the mediation procedure is doubled by a mediation agreement. In criminal matters, the mediation agreement in writing is mandatory.

The notion of „principle” has known three approaches throughout its history: ontological (philosophical), logical, and normative. Ontologically, it would mean the primary object of knowledge stemming from the intellectual act, by the procedure of induction, generalization (a form of reasoning), starting from the particular and ending with the general, from facts to concepts. In a logical sense, it is a general proposal induced from particular rules, being a source for deductive reasoning wherein the conclusion follows necessarily premises that are sources of orientation: ideas, facts, situations. Legal logic has a wide content, and it is considered that logical principles denote, on the one hand, a body of rules stemming from a methodic and reflected development, rules ordered systematically, and, on the other hand, the axioms that substantiate a rational structure. This is how principles are linked with the perpetual work of sensibly organizing the law (the activity of legislation). In a normative sense, the principle no longer describes the object or a form of logic, nor does it describe an axiom or a reason-based system of rules, but a legal norm/standard whereby an obligation is asserted, establishing a resource for the legal interpreter. Interpretative adages which relate, however, to formal rules of logical reasoning, may clash and lack any compelling force, being used by the judge in the development of his/her own policy. The role of the principles is to ensure the coherence and harmony of the legal system, since they are the expression of superior values embedded in the spirit of the law. Regarding the content and the extent of the principle of legal certainly, legal literature has identified three levels of approach: pre-judicial legal certainty; procedural legal certainty and post-judicial substantial legal certainty; all of them meet to ensure the „predictability of the law” so that the parties/the litigants have a feeling of certainty.

Typical as they could be for the continental legal system and bearing common landmarks recommended by the Council of Europe and European Union, France, Italy and Spain are the three examples of states best suited to illustrate the European vision on the civil liability of judges and prosecutors for the damages caused by the exercise of their legal powers in deciding upon acts and measures taken in the framework of litigation, including the final decision on the case. The analysis of these examples represents the continuation of a former study published in the same legal journal on the matter, but viewed through the lenses of the US Supreme Court of Justice and laws. Based on the Council of Europe Charter on the Statute for Judges and Recommendation on the judge’s independence, efficiency and responsibilities, guided by the case law of the EU Court of Justice and ECHR, the law and legal practices on civil liability of judges and prosecutors find their expression in slightly different manners in France, Italy and Spain, but all of them respect the paramount principle of the indirect liability which could be enacted only based on the state’s direct liability. There are some national differences but nevertheless they don’t represent deviations from the common European approach. The present study searches for all different and common views of the three states on the subject, emphasizing on the main principles that should guide the continental legal system’s states on that respect.

The jurists naturally privilege the continuity, stability, coherence. If the political tends to periodically break the coherence of the social structures, the jurists conceive themselves as „doctors” thereof, and „their technique is precisely the extirpation of the void, the anticipation of the crises, the assurance of the continuity, or even the mending, after the stroke, of the ruptures of the institutional weave”1. The legal privileging of the continuity of the social evolution is translated by the structuring of the system on the basis of some principles aimed at attenuating the tendencies of radicalization of the social claims in the name of the prevalence of a certain conception about the good society over its alternatives. It is fundamental for the jurists that the law ensures the priority of the protection of freedom through the mechanisms of the rule of law over the general interest resulted from the democratic exercise of power. The law based on this vision can not be the result of a general transcendent interest over the interests of the members of the society, but must be the result of the accessibility and availability thereof.

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.

On number of occasions, the Constitutional Court is in the position to determine whether a norm is constitutional or not, referring to the provisions of Article 1 (5) of the Constitution, republished version. In order to comply with the provisions of this article, it is necessary for the law, the obedience of which is required by the very first article of the Basic Law, to be clear, precise and predictable. There are numerous decisions of the Constitutional Court which state that the law is devoid of „quality”, i.e. the law is not clear, precise and predictable. The non-compliance of these requirements results in a violation of the provisions of Article 6 (1) of the Law No 24/2000 on normative technical norms for the drafting of normative acts, republished, subsequently amended and supplemented, according to which the draft of the normative act must establish necessary, sufficient and possible rules leading to the greatest legal stability and efficiency. Thus, whenever the legislator uses notions whose legal nature is uncertain or do not integrate from the conceptual point of view into the normative system, or when the legislator resorts to the use of innovative concepts in the normative acts and does not define them in their very content, the Constitutional Court will have all the reasons to establish that the provisions of Article 1 (5) of the Constitution are violated, the text being inadequately drafted.

In the Draft law drawn up by the Ministry of Justice, the offence of abuse of office provided by Article 297 (1) of the Criminal Code is defined simplistically and formally, without clarity, precision and predictability. According to the Draft law, any act of breach of the law, of a Government Ordinance or of a Government Emergency Ordinance by a civil servant is considered to be an offence of abuse of office, regardless of its gravity and of its consequences, because its legal content is not circumscribed. In order for the offence of abuse of office not to be confused with the other forms of civil, disciplinary, administrative, fiscal, material or contraventional legal liability, we have introduced in its definition the condition that the deed must be committed for material interests, and the damage must cause particular serious consequences. In this way, the abuses in the interpretation and application of Article 297 (1) of the Criminal Code will be completely removed.